- Amended Statement of Ownership: Solicitation (SC 14D9/A)
April 06 2009 - 6:01AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 3
to
SCHEDULE 14D-9
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
CV THERAPEUTICS, INC.
(Name of Subject Company)
CV THERAPEUTICS, INC.
(Name of
Person Filing Statement)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
126667104
(CUSIP Number of Class of Securities)
Tricia Borga Suvari
Senior Vice President and General Counsel
3172 Porter Drive, Palo Alto, CA 94304
(650) 348-8500
(Name, address and telephone number of person authorized to receive
notices and communications on behalf of the persons filing statement)
With copies to:
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Alan C. Mendelson
Latham & Watkins LLP
140 Scott Drive
Menlo Park, California 94025-3656
(650) 328-4600
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Barry A. Bryer
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022-4834
(212) 906-1200
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¨
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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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This Amendment No. 3 to the Schedule 14D-9 (this Amendment) amends and supplements the Schedule 14D-9
filed with the Securities and Exchange Commission on March 18, 2009 (as amended from time to time, the Schedule 14D-9) by CV Therapeutics, Inc., a Delaware corporation (the Company). The Schedule 14D-9 relates to the
tender offer by Gilead Sciences, Inc., a Delaware corporation (Gilead), and Apex Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Gilead, to purchase all of the outstanding shares of common stock, par value
$0.001 per share, of the Company (collectively, the Shares) at a price of $20.00 per Share, net to the holder thereof in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase
dated March 18, 2009 and the related Letter of Transmittal, copies of which are filed as Exhibits (a)(1) and (a)(2) to the Schedule 14D-9, respectively.
The information in the Schedule 14D-9 is incorporated into this Amendment by reference to all of the applicable items in the Schedule 14D-9, except that such information is hereby amended and supplemented to the extent specifically provided
herein.
Item 6.
Interest in Securities of the Subject Company.
Item 6 (Interest in Securities of the Subject Company) of the Schedule 14D-9 is hereby amended and supplemented by inserting the following bullets on
page 33 of the Schedule 14D-9 after the last bullet under Item 6 (Interest in Securities of the Subject Company):
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On April 2, 2009, Dr. Lange exercised stock options having a weighted average exercise price of approximately $11.79 per Share (with exercise prices ranging
from $10.45 to $17.03 per Share) with respect to 641,083 Shares, of which 479,175 Shares were concurrently sold in the open market at an approximate price of $19.90 per Share to cover applicable tax withholdings and the
aggregate exercise prices of the stock options, resulting in a net acquisition of 161,908 Shares by Dr. Lange.
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On April 2, 2009, Mr. Spiegelman exercised stock options having a weighted average exercise price of approximately $11.75 per Share (with exercise prices
ranging from $10.45 to $13.33 per Share) with respect to 188,958 Shares, of which 141,029 Shares were concurrently sold in the open market at an approximate price of $19.91 per Share to cover applicable tax withholdings and the aggregate exercise
prices of the stock options, resulting in a net acquisition of 47,929 Shares by Mr. Spiegelman.
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On April 2, 2009, Dr. Blackburn exercised stock options having a weighted average exercise price of approximately $12.37 per Share (with exercise prices
ranging from $10.45 to $17.03 per Share) with respect to 213,958 Shares, of which 163,958 Shares were concurrently sold in the open market at a price of $19.91 per Share to cover applicable tax withholdings and the aggregate exercise prices of the
stock options, resulting in a net acquisition of 50,000 Shares by Dr. Blackburn.
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On April 2, 2009, Ms. Suvari exercised stock options having a weighted average exercise price of approximately $11.54 per Share (with exercise prices
ranging from $10.45 to $13.33 per Share) with respect to 163,958 Shares, of which 121,191 Shares were concurrently sold in the open market at a price of $19.91 per Share to cover applicable tax withholdings and the aggregate exercise prices of
the stock options, resulting in a net acquisition of 42,767 Shares by Ms. Suvari.
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On April 2, 2009, Dr. Davie exercised stock options having a weighted average exercise price of approximately $11.08 per Share (with exercise
prices ranging from $8.74 to $15.60 per Share) with respect to 27,500 Shares, of which 20,435 Shares were concurrently sold in the open market at a price of $19.92 per Share to cover applicable tax withholdings and the
aggregate exercise prices of the stock options, resulting in a net acquisition of 7,065 Shares by Dr. Davie.
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On April 3, 2009, Mr. Lee exercised stock options having a weighted average exercise price of approximately $13.03 per Share (with exercise
prices ranging from $8.74 to $19.91 per Share) with respect to 56,250 Shares, of which 45,155 Shares were concurrently sold in the open market at an approximate price of $19.92 per Share to cover applicable tax withholdings and
the aggregate exercise prices of the stock options, resulting in a net acquisition of 11,095 Shares by Mr. Lee.
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Item 8.
Additional Information
.
Item 8 (Additional Information) of the Schedule 14D-9 is hereby
further amended and supplemented by inserting the following paragraph on page 35 of the Schedule 14D-9 after the last paragraph under the subheading
Other.
under the heading
Litigation and Proxy Solicitation.
:
On April 1, 2009, the lawsuits captioned
Laraque v. Lange, et al.
and
Superior Partners v. Lange et al.
were consolidated by the
Superior Court for the State of California, Santa Clara County into a single action. On the same date, a consolidated complaint containing substantially the same claims as the prior complaints was filed. The hearing on the motion for a temporary
restraining order previously scheduled for March 27, 2009 was taken off calendar and the plaintiffs have indicated that they will be filing a motion seeking a
preliminary injunction enjoining the Offer. A hearing on the plaintiffs motion is scheduled for April 10, 2009. The foregoing description is
qualified in its entirety by reference to the consolidated complaint, which is included as Exhibit (a)(10) to this Schedule 14D-9 and incorporated herein by reference. The Company continues to believe the plaintiffs allegations lack merit and
will contest them vigorously.
Item 9.
Exhibits.
Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following exhibit thereto:
(a)(10)
Complaint captioned
In re CV Therapeutics, Inc. Shareholder Litigation
, filed April 1, 2009 in the Superior Court of the State of California, Santa Clara County.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
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CV THERAPEUTICS, INC.
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By:
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/s/ TRICIA BORGA SUVARI
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Name:
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Tricia Borga Suvari
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Title:
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Senior Vice President and General Counsel
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Dated: April 3, 2009
INDEX TO EXHIBITS
(a)(10) Complaint captioned
In re CV Therapeutics, Inc. Shareholder Litigation
, filed April 1, 2009 in the Superior Court of the State of California, Santa Clara County.
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