UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report
(Date of earliest event reported):
October 14, 2009
SEPRACOR
INC.
(Exact name of
Registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
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0-19410
(Commission
File Number)
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22-2536587
(I.R.S. Employer
Identification No.)
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84
Waterford Drive, Marlborough, MA
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01752
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(Address of
principal executive offices)
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(Zip code)
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(508)
481-6700
(Registrants telephone number including area code)
N/A
(Former name and
former address, if changed since last report)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see
General Instruction A.2. below):
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 2.04.
Triggering Events That Accelerate or Increase a Direct Financial Obligation
or an Obligation under an Off-Balance Sheet Arrangement.
As previously announced, on
September 3, 2009, Sepracor Inc., a
Delaware corporation (Sepracor or the Company), entered into an Agreement
and Plan of Merger (the Merger Agreement) with Dainippon Sumitomo Pharma Co.,
Ltd., a company formed under the laws of Japan (Parent), and Aptiom, Inc.,
a Delaware corporation and an indirect wholly-owned subsidiary of Parent
(Purchaser). As more fully described below, on October 20,
2009, Purchaser was merged with and into the Company (the Merger) pursuant to
the terms and conditions of the Merger Agreement. The Merger became effective at 4:01 p.m.,
New York City time, on October 20, 2009, in accordance with Section 253
of the General Corporation Law of the State of Delaware, as amended (the
DGCL), and pursuant to the Certificate of Ownership and Merger that was filed
on October 20, 2009 with the Secretary of State of the State of
Delaware. Pursuant to the Merger
Agreement, at the effective time of the Merger (the Effective Time),
Purchaser was merged with and into the Company with the Company continuing as
the surviving corporation (the Surviving Corporation) and as an indirect
wholly-owned subsidiary of Parent.
In connection with the Merger, the Surviving
Corporation and the Bank of New York Mellon (formerly JPMorgan Chase Bank), as
trustee (the Trustee), executed a First Supplemental Indenture, dated as of October 20,
2009 (the 2010 Supplemental Indenture), to the Indenture, dated as of December 12,
2003, between the Company and the Trustee (the 2010 Indenture), in respect of
the Companys 0% Series B Senior Subordinated Notes Due 2010 (the 2010
Notes). Pursuant to the terms of the
2010 Supplemental Indenture, among other things, the Surviving Corporation
agreed to assume the due and punctual payment of the principal of and premium,
if any, on all of the 2010 Notes, according to their terms, and the due and
punctual performance and observance of all of the covenants and conditions of
the 2010 Indenture to be performed by the Company.
In connection with the Merger, the Surviving
Corporation and the Trustee also executed a First Supplemental Indenture, dated
as of October 20, 2009 (the 2024 Supplemental Indenture), to the
Indenture, dated as of September 22, 2004, between the Company and the
Trustee (the 2024 Indenture), in respect of the Companys 0% Convertible
Senior Subordinated Notes Due 2024 (the 2024 Notes). Pursuant to the terms of the 2024
Supplemental Indenture, among other things, the Surviving Corporation agreed to
assume the due and punctual payment of the principal of and premium, if any, on
all of the 2024 Notes, according to their terms, and the due and punctual
performance and observance of all of the covenants and conditions of the 2024
Indenture to be performed by the Company.
The foregoing descriptions of the 2010 Supplemental
Indenture and the 2024 Supplemental Indenture do not purport to be complete and
are qualified in their entirety by reference to the full text of the 2010
Supplemental Indenture and the 2024 Supplemental Indenture, copies of which are
attached as Exhibit 4.1 and 4.2 to this Current Report on Form 8-K,
respectively, and incorporated in this report by reference.
Pursuant to the terms of the 2010 Indenture, a Designated
Event, as defined in the 2010 Indenture, may be deemed to have occurred upon
the purchase by Purchaser of Shares (as defined in Item 5.01 below)
validly tendered and not withdrawn as of the expiration of the initial offering
period of the Offer (as defined in Item 5.01 below). Pursuant to the terms of the 2010 Indenture,
the Company is required to send to holders of the 2010 Notes (the 2010 Holders),
within ten days of a Designated Event, notice of the occurrence of the
Designated Event and of the right of the 2010 Holders to require the Company to
repurchase their 2010 Notes at a price of $1,000.00 per $1,000.00 principal
amount of the 2010 Notes, plus any accrued and unpaid liquidated damages on
such 2010 Notes to, but excluding, the date of repurchase. As of the date hereof, approximately
$99,844,000 aggregate principal amount of 2010 Notes remains outstanding. The Company believes that no amount is or
will be due in respect of accrued and unpaid liquidated damages on the 2010
Notes.
In addition, pursuant to the terms of the 2024
Indenture, a Designated Event, as defined in the 2024 Indenture, may be
deemed to have occurred upon the purchase by Purchaser of Shares validly
tendered and not withdrawn as of the expiration of the initial offering period
of the Offer. Pursuant to the terms of
the 2024 Indenture, the Company is required to send to holders of the 2024
Notes (the 2024 Holders), within ten days of a Designated Event, notice of
the occurrence of the Designated Event and of the right of the 2024 Holders to
require the Company to repurchase their 2024 Notes at a price of $1,000.00 per
$1,000.00 principal amount of the 2024 Notes, plus any accrued and unpaid
liquidated damages on such 2024 Notes to, but excluding, the date of
repurchase. As of the date hereof,
approximately $279,000 aggregate principal amount of 2024 Notes remains
outstanding. The Company believes that
no amount is or will be due in respect of accrued and unpaid liquidated damages
on the 2024 Notes.
The information set forth under Item 5.01 of this
Current Report on Form 8-K is hereby incorporated by reference into this
Item 2.04.
2
Item 3.01. Notice of Delisting or Failure to
Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
The disclosure contained in Item 5.01 below is
incorporated herein by reference. On October 20,
2009, the Company notified the NASDAQ Global Select Market (NASDAQ) of the
effectiveness of the Merger. As a result
of the Merger, the Company no longer meets the numerical listing requirements
of NASDAQ. The Company also notified
NASDAQ that each share of Company common stock (as defined in Item 5.01 below)
issued and outstanding immediately prior to the Effective Time (other than any
shares of Company common stock held in the treasury of the Company or owned by
Parent or Purchaser or any direct or indirect subsidiary of Parent, Purchaser
or the Company) was, at the Effective Time, canceled and, subject to the
exercise of appraisal rights under the DGCL, converted into the right to
receive an amount equal to the Offer Price (as defined below), and requested
that NASDAQ file with the Securities and Exchange Commission (the SEC) an
application on Form 25 to report that shares of Company common stock are
no longer listed on NASDAQ. Trading of
shares of Company common stock on NASDAQ has ceased effective as of the close
of trading on October 20, 2009.
Item 3.02. Unregistered Sale of Equity Securities.
The disclosure contained in Item 5.01 below is
incorporated herein by reference. The
Top-Up Option Shares (as defined in Item 5.01 below) issued to Purchaser
pursuant to the Top-Up Option (as defined in Item 5.01 below) were issued in
reliance upon an exemption from registration pursuant to Section 4(2) under
the Securities Act of 1933, as amended, as a transaction by an issuer not
involving a public offering.
Item 3.03. Material Modification to
Rights of Security Holders.
The information set forth under Items 2.04 and 5.01 of
this Current Report on Form 8-K is hereby incorporated by reference into
this Item 3.03.
Item 5.01. Change in Control of the
Registrant.
As previously announced, on September 15, 2009,
Purchaser commenced a tender offer (the Offer) in accordance with the terms
of the Merger Agreement to acquire all of the outstanding shares of common
stock, par value $0.10 per share, of the Company (Company common stock),
including the associated preferred stock purchase rights (collectively with the
Company common stock, the Shares), at a purchase price of $23.00 per Share,
net to the holder in cash, without interest (the Offer Price), subject to any
required withholding of taxes, upon the
terms and subject to the conditions set forth in the Offer to Purchase dated September 15,
2009 (the Offer to Purchase) and in the related Letter of Transmittal, each
as amended or supplemented from time to time.
The initial offering period
expired at 12:00 midnight, New York City time, at the end of the day on October 13,
2009. Shares (excluding Shares tendered
by notice of guaranteed delivery) representing approximately 78% of the
outstanding shares of Company common stock were validly tendered and not
properly withdrawn as of the expiration time of the initial offering period. All such Shares were accepted for payment on October 14,
2009 and thereafter paid for by Purchaser on October 15, 2009. Accordingly, as a result of the purchase of
the Shares validly tendered and not withdrawn in the initial offering period, on
October 15, 2009 a change in control of the Company occurred.
Immediately following the
expiration of the initial offering period, Purchaser commenced a subsequent
offering period in accordance with the terms of the Merger Agreement which
expired at 5:00 p.m., New York City time, on October 19, 2009. According to Computershare Trust Company,
N.A., the depositary for the Offer, a total of approximately 96,590,423 Shares
were validly tendered in the Offer, representing approximately 86.9% of the
outstanding shares of Company common stock.
Subsequent to the expiration
of the Offer, on October 19, 2009, Purchaser exercised the option (the Top-Up
Option) to purchase shares of Company common stock directly from the Company,
in accordance with the terms of the Merger Agreement. On October 20, 2009, Purchaser purchased
from the Company 37,000,000 shares of Company common stock (the Top-Up Option
Shares) at a price per share equal to the Offer Price and paid for such shares
by delivery of cash in an amount equal to $0.10 per Top-Up Option Share and a
promissory note in an amount equal to the balance of the purchase price. The Top-Up Option Shares, when combined with
the number of Shares owned by Parent and Purchaser immediately prior to the
purchase of the Top-Up Option Shares, constitute aggregate ownership in excess
of 90% of the outstanding Shares.
Pursuant to the Merger
Agreement, on October 20, 2009, the Merger was effected
.
The Merger became effective at 4:01 p.m., New York City time, on October 20,
2009 following the filing by Purchaser of a Certificate of Ownership and Merger
with the Secretary of State of the State of Delaware. Each share of Company common stock that
remained outstanding immediately prior to the Effective Time (other than any
shares of Company common stock held in the treasury of the Company or owned by
Parent or Purchaser or any
3
direct or indirect subsidiary of Parent, Purchaser or
the Company) were, at the Effective Time, canceled and, subject to the exercise
of appraisal rights under the DGCL, converted into the right to receive cash in
an amount equal to the Offer Price.
Pursuant to the terms of the
Merger Agreement, following Purchasers acceptance of and payment for the
Shares validly tendered and not properly withdrawn as of the expiration of the
initial offering period (the Initial Acceptance Time), Purchaser became
entitled to designate such number of
directors to the Board of Directors of the Company (the Board) to give
Purchaser representation on the Board equal to that number of directors,
rounded up to the next whole number, equal to the product of (i) the total
number of directors on the Board (giving effect to the directors elected
pursuant to this sentence) multiplied by (ii) the percentage that (A) the
number of Shares owned by Parent, Purchaser or any other subsidiary of Parent
bears to (B) the total number of Shares that are issued and outstanding.
Accordingly, on October 15, 2009, each of Adrian Adams, Timothy
Barberich, Digby W. Barrios, James F. Mrazek, and Alan A. Steigrod (the Resigning
Directors) resigned from the Board. Messrs. Mrazek
and Steigrod were members of the Audit Committee. Messrs. Barrios and Mrazek were members
of the Compensation Committee. Messrs. Barrios
and Steigrod were members of the Nominating and Corporate Governance
Committee. Following the effectiveness
of such resignations, Robert J. Cresci, Lisa Ricciardi and Timothy J. Rink (the
Continuing Directors) remained as members of the Board, but all such
Continuing Directors resigned from the Board at or prior to the Effective Time,
which occurred at 4:01 p.m., New York City time, on October 20, 2009. In accordance with the terms of the Merger
Agreement, immediately following the Initial Acceptance Time and prior to the
Effective Time, the Continuing Directors appointed the following Parent
designees as members of the Board:
Koichi Tamura, Hiroshi Nomura, Yoshiharu Ikeda, Noriaki Okuda, Nobuhiko
Tamura and Hitoshi Odagiri. In
accordance with the terms of the Merger Agreement and the Certificate of
Ownership and Merger, the directors of Purchaser immediately prior to the
Effective Time became the directors of the Surviving Corporation at the
Effective Time.
Item 5.02. Departure of
Directors or Principal Officers; Election of
Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
The information set forth
under Item 5.01 of this Current Report on Form 8-K is hereby incorporated
by reference into this Item 5.02. None
of the members of the Board that resigned therefrom in connection with the
closing of the transactions contemplated by the Merger Agreement resigned from
the Board because of any disagreements relating to the Companys operations,
policies or practices.
Item 5.03. Amendments to Articles of Incorporation or
Bylaws; Changes in Fiscal Year.
In accordance with the Merger Agreement, at the
Effective Time, the certificate of incorporation of the Company was amended and
restated in its entirety. Also, pursuant
to the Merger Agreement, at the Effective Time, the bylaws of Purchaser, as in
effect immediately prior to the Effective Time, became the bylaws of the
Surviving Corporation except that the name of the corporation set forth therein
was changed to Sepracor Inc. Copies of
the amended and restated certificate of incorporation and bylaws of the
Surviving Corporation are filed as Exhibits 3.1 and 3.2 to this Current Report
on Form 8-K and are incorporated by reference in this Item 5.03.
Item 8.01. Other Events.
On October 14, 2009, Parent and the Company
issued a press release announcing, among other things, Purchasers acceptance
of and payment for all Shares validly tendered and not properly withdrawn in
the initial offering period and the commencement of a subsequent offering
period, in each case in connection with the Offer. On October 20, 2009, Parent and the
Company issued a press release announcing, among other things, Purchasers
acceptance of and payment for all Shares validly tendered in the subsequent
offering period and the intention to effect the Merger. On October 20, 2009, Parent and the
Company issued a subsequent press release announcing, among other things, the
completion of the Merger. Copies of
these press releases are filed as Exhibits 99.1, 99.2 and 99.3 respectively, to
this Current Report on Form 8-K and are incorporated herein by reference.
On September 16, 2009, the Company notified the
holders of its 2024 Notes of their right, pursuant to the provisions of the
2024 Indenture, to require the Company to repurchase the 2024 Notes for cash,
at a purchase price equal to 100% of the principal amount, on October 15,
2009. The notice of right of repurchase
was delivered to the 2024 Holders pursuant to a provision of the 2024 Indenture
that is unrelated to the Offer and the Merger.
The right to surrender the 2024 Notes for repurchase terminated at 5:00 p.m.
New York City time, on October 14, 2009, at which time $187,976,000
aggregate principal amount of 2024 Notes had been validly surrendered for
repurchase and not withdrawn. On October 15,
2009, the Company repurchased the
$187,976,000 aggregate principal amount of 2024 Notes that had been
surrendered and, following such repurchase, $279,000 aggregate principal amount
of 2024 Notes remain outstanding.
4
Item
9.01. Financial Statements and Exhibits.
(d)
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Exhibits.
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The following
exhibits are being filed with this Current Report on Form 8-K:
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3.1
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Amended and Restated
Certificate of Incorporation of Sepracor Inc.
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3.2
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Amended and Restated
Bylaws of Sepracor Inc.
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4.1
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First Supplemental
Indenture, dated as of October 20, 2009, to the Indenture, dated as of
December 12, 2003, between Sepracor Inc. and the Bank of New York Mellon
(formerly JPMorgan Chase Bank), as trustee.
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4.2
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First Supplemental
Indenture, dated as of October 20, 2009, to the Indenture, dated as of
September 22, 2004, between and the Bank of New York Mellon (formerly
JPMorgan Chase Bank), as trustee.
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99.1
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Press Release issued by
Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 14,
2009.
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99.2
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Press Release issued by
Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 20,
2009.
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99.3
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Press Release issued by
Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 20,
2009.
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5
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
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SEPRACOR INC.
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By:
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/s/ Andrew I. Koven
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Name: Andrew I. Koven
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Title Executive Vice
President, General Counsel and Corporate Secretary
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Date: October 20,
2009
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EXHIBIT INDEX
3.1
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Amended and Restated
Certificate of Incorporation of Sepracor Inc.
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3.2
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Amended and Restated
Bylaws of Sepracor Inc.
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4.1
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First Supplemental
Indenture, dated as of October 20, 2009, to the Indenture, dated as of
December 12, 2003, between Sepracor Inc. and the Bank of New York Mellon
(formerly JPMorgan Chase Bank), as trustee.
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4.2
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First Supplemental
Indenture, dated as of October 20, 2009, to the Indenture, dated as of
September 22, 2004, between and the Bank of New York Mellon (formerly
JPMorgan Chase Bank), as trustee.
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99.1
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Press Release issued by
Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 14,
2009.
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99.2
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Press Release issued by
Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 20,
2009.
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99.3
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Press Release issued by
Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 20,
2009.
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7
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