- Amended tender offer statement by Third Party (SC TO-T/A)
March 06 2009 - 1:51PM
Edgar (US Regulatory)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1)
OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
CV Therapeutics, Inc.
(Name of Subject Company(Issuer))
Sturgeon Acquisition, Inc.
Astellas US Holding, Inc.
Astellas Pharma Inc.
(Names of Filing Persons(Offerors))
Common Stock, Par Value $.001 Per Share
(Title of Class of Securities)
126667104
(CUSIP Number of Class of Securities)
Masafumi Nogimori
President and Chief Executive Officer
Astellas Pharma Inc.
2-3-11 Nihonbashi-Honcho, Chuo-ku
Tokyo 103-8411
Japan
+81-3-3244-3000
(Name, address and telephone number of person authorized to
receive notices and communications on behalf of filing persons)
Copy to:
Michael O. Braun, Esq.
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York 10104
(212) 468-8000
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$1,499,766,384.00
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$58,940.82
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*
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For purposes of calculating the amount of filing fee only in accordance with
Rules 0-11(d) and 0-11(a)(4) under the Securities Exchange Act of 1934 (the
Exchange Act). Based on the offer to purchase up to 93,789,669 shares of
common stock, par value $0.001 per share of CV Therapeutics, Inc. (the
Company), including the associated stock purchase rights, at a purchase price
of $16.00 per share net to the seller in cash, without interest and subject to
any required withholding of taxes. Such number of shares consists of (i)
64,234,229 shares of common stock issued and outstanding as of February 19,
2009, as reported in the Companys Annual Report on Form 10-K for the year
ended December 31, 2008 (the Company Form 10-K), minus the 54,270 shares of
common stock beneficially owned by the filing persons as of the date hereof,
(ii) all options outstanding as of February 11, 2009 with respect to 8,834,500
shares of the Companys common stock, as reported in the Company Form 10-K and
a subsequent press release, (iii) all restricted stock units outstanding as of
December 31, 2008 with respect to 1,673,736 shares of the Companys common
stock, as reported in the Company Form 10-K, (iv) all stock appreciation rights
outstanding as of December 31, 2008 with respect to 56,250 shares of the
Companys common stock, as reported in the Company Form 10-K, (v) a maximum of
328,226 shares that are available for future grants under the Companys
Employee Stock Purchase Plan as of December 31, 2008, according to the Company
Form 10-K, (vi) a maximum of 835,015 shares of common stock reserved for
issuance for the conversion of the Companys 2% Senior Subordinated Convertible
Debentures due 2023 as reported in the Company Form 10-K, (vii) a maximum of
5,824,395 shares of common stock reserved for issuance for the conversion of
the Companys 2.75% Senior Subordinated Convertible Debentures due 2012 as
reported in the Company Form 10-K, (viii) a maximum of 5,537,032 shares of
common stock reserved for issuance for the conversion of the Companys 3.25%
Senior Subordinated Convertible Debentures due 2013 as reported in the
Companys Form 10-K, (ix) a maximum of 200,000 shares of the Companys common
stock that may be issued pursuant to the exercise of warrants as reported in
the Company Form 10-K, and (x) a maximum of 6,266,286 shares of the Companys
common stock that are available for purchase by Azimuth Opportunity Ltd., as
reported in the Company Form 10-K.
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**
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The filing fee was calculated in accordance with Rule 0-11 under the Exchange
Act, as amended, by multiplying the transaction value by .00003930.
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Check box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee
was previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
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Amount Previously Paid: $58,940.82
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Filing Party: Sturgeon Acquisition, Inc.
Astellas US Holding, Inc.
Astellas Pharma Inc.
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Form or Registration No.: SC TO
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Date Filed: February 27, 2009
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Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
þ
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third-party tender offer subject to Rule 14d-1.
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issuer tender offer subject to Rule 13e-4.
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going-private transaction subject to Rule 13e-3.
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender
offer.
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TABLE OF CONTENTS
This Amendment No. 2 to Schedule TO (this Amendment No. 2) amends and supplements the Tender
Offer Statement on Schedule TO filed with the Securities and Exchange Commission on February 27,
2009 (Schedule TO) relating to the offer by Sturgeon Acquisition, Inc. (Purchaser), a Delaware
corporation and a wholly-owned subsidiary of Astellas US Holding, Inc. (Parent), a Delaware
corporation and a wholly-owned subsidiary of Astellas Pharma Inc. (Astellas), a corporation
formed under the laws of Japan, to purchase all issued and outstanding shares of the common stock,
par value $0.001 per share (together with the associated stock purchase rights, the Shares), of
CV Therapeutics, Inc. (the Company), a Delaware corporation, at a price of $16.00 per Share, net
to the seller in cash, without interest and subject to any required withholding of taxes, upon the
terms and subject to the conditions set forth in the offer to purchase dated February 27, 2009 (the
Offer to Purchase) and in the related Letter of Transmittal, as each may be amended or
supplemented from time to time. This Amendment No. 2 is being filed on behalf of Astellas, Parent
and Purchaser.
The information set forth in the Schedule TO, including all exhibits and amendments thereto,
is hereby incorporated by reference in answer to Items 1 through 13 of this Amendment No. 1, except
as set forth below. You should read this Amendment No. 2 together with the Schedule TO. All
capitalized terms used in this Amendment No. 2 and not otherwise defined have the respective
meanings ascribed to them in the Offer to Purchase.
Items 1 through 11 and 13.
The Offer to Purchase is amended as follows:
1. The paragraph entitled
Purpose of the Offer; Plans for the Company
in the section of the Offer
to Purchase entitled The OfferSection 12Purpose of the Offer; Plans for the Company; Statutory
Requirements; Approval of the Merger; Appraisal Rights is hereby amended and supplemented to
include the following:
On March 6, 2009, Astellas announced that its wholly-owned subsidiary, Astellas US Holding,
Inc., will nominate two directors for election to the Companys Board of Directors and will submit
a proposal to remove the remaining four directors at the Companys 2009 annual meeting of
stockholders.
Astellas is currently reviewing the recent changes made by the Company to its bylaws,
which require, among other things, that each nominee complete a questionnaire and provide a
representation and agreement in connection with his nomination. Upon completion of this process,
Astellas will disclose its nominees.
The full text of the press release
regarding Astellas intention to nominate directors to the Companys Board of Directors, filed as
Exhibit (a)(5)(D) hereto, is incorporated herein by reference.
Item 12.
Exhibits
.
Item 12 of the Schedule TO is hereby amended and restated as follows:
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(a)(5)(D)
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Press Release issued by Astellas Pharma Inc. dated March 6, 2009
regarding the nomination of directors.
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SIGNATURES
After due inquiry and to the best of their knowledge and belief, each of the undersigned
certifies that the information set forth in this statement is true, complete and correct.
Dated March 6, 2009
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ASTELLAS PHARMA INC.
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By:
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/s/ Hirofumi Onosaka
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Name:
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Hirofumi Onosaka
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Title:
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Senior Corporate Executive,
Chief Financial Officer &
Chief Strategy Officer
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ASTELLAS US HOLDING, INC.
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By:
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/s/
Linda F. Friedman
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Name:
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Linda Friedman
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Title:
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Secretary
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STURGEON ACQUISITION, INC.
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By:
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/s/
Linda F. Friedman
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Name:
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Linda Friedman
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Title:
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Secretary
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EXHIBIT INDEX
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Exhibit No.
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Description
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(a)(1)(A)
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Offer to Purchase dated February 27, 2009.*
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(a)(1)(B)
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Form of Letter of Transmittal.*
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery.*
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
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(a)(1)(E)
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Form of Letter to Clients for Use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.*
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(a)(1)(F)
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Guidelines for Certification of Taxpayer Identification Number
on Substitute W-9.*
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(a)(1)(G)
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Summary Advertisement as published on February 27, 2009.*
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(a)(5)(A)
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Press Release issued by Astellas Pharma Inc. dated February
27, 2009 regarding the commencement of the tender offer.*
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(a)(5)(B)
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Press Release issued by Astellas Pharma Inc. dated February
27, 2009 regarding the filing of a lawsuit against the
Company.*
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(a)(5)(C)
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Complaint by Astellas US Holding, Inc. against the Company and
its directors, filed in the Court of Chancery of the State of
Delaware on February 27, 2009.*
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(a)(5)(D)
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Press Release issued by Astellas Pharma Inc. dated March 6,
2009 regarding the nomination of directors.
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(b)
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Not applicable.
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(d)(A)
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Stock Purchase Agreement between the Company and Fujisawa
Healthcare, Inc. (predecessor-in-interest to Astellas US LLC,
a current subsidiary of Astellas) dated as of July 10, 2000.
(Filed as Exhibit 10.82 to the Companys Quarterly Report on
Form 10-Q for the Third Quarter 2000, and incorporated herein
by reference.)
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(d)(B)
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Collaboration and License Agreement between the Company and
Fujisawa Healthcare, Inc. dated as of July 10, 2000. (Filed
as Exhibit 10.83 to the Companys Quarterly Report on Form
10-Q for the Third Quarter 2000, and incorporated herein by
reference.)
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(d)(C)
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Amendment to Collaboration and License Agreement dated as of
August 30, 2005, between the Company and Astellas US LLC.
(Filed as Exhibit 10.1 to the Companys current Report on Form
8-K filed by the Company on September 6, 2005, and
incorporated herein by reference.)
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(d)(D)
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Second Amendment to Collaboration and License Agreement
effective January 1, 2006 between the Company and Astellas US
LLC. (Filed as Exhibit 10.2 to the Companys Quarterly Report
on Form 10-Q for the Second Quarter 2006, and incorporated
herein by reference.)
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(g)
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Not applicable.
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(h)
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Not applicable.
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*
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Previously filed with Schedule TO.
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