SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AVANIR
PHARMACEUTICALS, INC.
(Name of Subject Company)
Bigarade Corporation
(Offeror)
a wholly owned
direct subsidiary of
Otsuka America, Inc.
(Direct Parent of Offeror)
a wholly owned indirect subsidiary of
Otsuka Pharmaceutical Co., Ltd.
(Parent of Offeror)
a
wholly owned subsidiary of
Otsuka Holdings Co., Ltd.
(Ultimate Parent of Offeror)
COMMON STOCK, $0.0001 PAR VALUE PER SHARE
(Title of Class of Securities)
05348P401
(CUSIP Number
of Class of Securities)
Tadahide Yoshida
Director, Legal Affairs Department
Otsuka Pharmaceutical Co., Ltd.
Shinagawa Grand Central Tower
2-16-4 Konan, Minato-ku, Tokyo 108-8242, Japan
+81-3-6717-1400
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
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Mitsuhiro Kamiya
Skadden, Arps, Slate, Meagher & Flom LLP
Izumi Garden Tower, 21st Floor
1-6-1 Roppongi, Minato-ku, Tokyo, 106-6021 Japan
+81-3-3568-2600 |
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Kenton King
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue
Palo Alto, CA 94301 (650)
470-4500 |
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Hiroshi Sarumida
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square New
York, NY 10036 (212) 735-3000 |
CALCULATION OF FILING FEE
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Transaction Valuation |
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Amount of Filing Fee |
Not Applicable* |
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Not Applicable* |
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A filing fee is not required in connection with this filing as it relates solely to preliminary communication made before the commencement of a tender offer. |
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Check the 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: N/A |
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Filing Party: N/A |
Form or Registration No. N/A |
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Date Filed: N/A |
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
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Third-party offer subject to Rule 14d-1. |
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Issuer tender offer subject to Rule 13e-4. |
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Going-private transactions subject to Rule 13e-3. |
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Amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a
final amendment reporting the results of the tender offer: ¨
This Tender Offer Statement on Schedule TO (this Statement) relates solely to
preliminary communications made before the commencement of a planned tender offer by Bigarade Corporation, a Delaware corporation (Purchaser) and a wholly owned indirect subsidiary of Otsuka Pharmaceutical Co., Ltd., a joint stock
company organized under the laws of Japan (Parent), for all the outstanding common stock of Avanir Pharmaceuticals, Inc. (the Company) to be commenced pursuant to the Agreement and Plan of Merger, dated as of
December 1, 2014, by and among Parent, Purchaser and the Company.
The tender offer to purchase shares of the Companys common
stock referenced in this filing has not yet commenced, and this filing is neither an offer to purchase, nor a solicitation of an offer to sell, any securities. The tender offer to purchase shares of the Companys common stock will be made only
pursuant to a Tender Offer Statement on Schedule TO containing an offer to purchase, forms of letters of transmittal and other documents relating to the tender offer (the Tender Offer Statement), which Purchaser, a wholly-owned
indirect subsidiary of Parent, will file with the with the Securities and Exchange Commission (the SEC). The Company will file with the SEC a Solicitation/Recommendation Statement with respect to the tender offer (the
Recommendation Statement). THE TENDER OFFER STATEMENT AND THE RECOMMENDATION STATEMENT WILL CONTAIN IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY AND CONSIDERED BEFORE ANY DECISION IS MADE WITH RESPECT TO THE TENDER
OFFER. Both the Tender Offer Statement and the Recommendation Statement will be mailed to Company stockholders free of charge. Investors and security holders of the Company are advised that they may also obtain free copies of the Tender Offer
Statement and other documents filed by Purchaser with the SEC (when these documents become available) and the Recommendation Statement and other documents filed by the Company (when these documents become available) on the SECs website at
www.sec.gov.
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Exhibit Index
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Exhibit No. |
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Description |
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(a)(5)(D) |
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English Translation of the Japanese-language Extraordinary Report filed by Otsuka Holdings Co., Ltd., with the Director-General of the Kanto Local Finance Bureau of the Ministry of Finance of Japan pursuant to the Financial
Instruments and Exchange Act of Japan, dated December 10, 2014 |
3
Exhibit (a)(5)(D)
xCover sheet
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Document title: |
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Extraordinary Report |
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Filing to: |
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Director-General of the Kanto Local Finance Bureau |
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Filing date: |
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December 10, 2014 |
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Company name: |
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Otsuka Holdings Co., Ltd. |
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Title and name of representative: |
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Tatsuo Higuchi President and Representative
Director, CEO |
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Registered address: |
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2-9, Kanda Tsukasa-machi, Chiyoda-ku, Tokyo 101-8535, Japan |
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Telephone number: |
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03-6717-1410 |
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Name of contact person: |
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Naoto Kondo Associate Director, Corporate
Finance and Accounting Department |
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Place of contact: |
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Shinagawa Grand Central Tower 2-16-4 Konan,
Minato-ku, Tokyo 108-8241, Japan |
I. |
Reason for submitting the Extraordinary Report |
Following a resolution
by the board of directors of Otsuka Holdings Co., Ltd. (the Company) on November 13, 2014 to acquire Avanir Pharmaceuticals, Inc. (Avanir) through an all-cash tender offer (the Tender Offer) made by a
wholly-owned subsidiary of Otsuka America, Inc. (headquartered in California, the United States, a wholly-owned subsidiary of Otsuka Pharmaceutical Co., Ltd., Otsuka America) followed by a merger of Avanir with the same subsidiary
(together with the Tender Offer, the Acquisition). The Company entered into an agreement to such effect with Avanir on December 2, 2014 (JST). The Company submits this Extraordinary Report under the provisions of Article 24-5,
Paragraph 4, of the Financial Instruments and Exchange Act of Japan and Article 19, Paragraph 2, Item 16-2, of the Cabinet Office Ordinance on Disclosure of Corporate Information.
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(1) |
Decision-making body regarding the Acquisition |
A resolution regarding the Acquisition was made
by the board of directors of the Company on November 13, 2014. A resolution to approve the Tender Offer was made by the board of directors of Avanir on December 1, 2014 (PST).
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(2) |
Corporate name, address and representative of acquiring consolidated subsidiary |
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a) Corporate name |
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Bigarade Corporation |
b) Address |
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One Embarcadero Center, Suite 2020, San Francisco, CA 94111, USA |
c) Representative |
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Hirotaka Noma, President and Representative Director |
For the purpose of the Acquisition, the Company established an acquisition company, Bigarade Corporation
(Acquisition Company), which is a wholly-owned subsidiary of Otsuka America. Subject to the successful completion of the Tender Offer, Acquisition Company is intended to merge with and into Avanir, resulting in Avanir becoming a
consolidated subsidiary of the Company.
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(3) |
Corporate information regarding the company to be acquired |
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a) Corporate name |
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Avanir Pharmaceuticals, Inc. |
b) Address |
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30 Enterprise, Suite 400 Aliso Viejo, CA 92656, USA |
c) Representative |
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Keith A. Katkin, President and Chief Executive Officer |
d) Capital |
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US $19,366 (as of September 30, 2014) |
e) Consolidated net assets |
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US $18,471,000 (as of September 30, 2013) |
f) Consolidated total assets |
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US $76,079,000 (as of September 30, 2013) |
g) Major business activities |
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Development, manufacturing and sales of pharmaceutical products |
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(4) |
Consolidated operating results of the company to be acquired for last three fiscal years |
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(In thousands of dollars) |
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Fiscal Year ended September 2011 |
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Fiscal Year ended September 2012 |
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Fiscal Year ended September 2013 |
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Sales |
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10,495 |
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41,275 |
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75,365 |
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Operating income (loss) |
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(60,629 |
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(58,402 |
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(71,426 |
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Net profit (loss) |
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(60,631 |
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(59,743 |
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(75,475 |
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(5) |
Capital, personnel or transactional relationship between the Company and its consolidated subsidiaries and the company to be acquired |
The Company and Avanir do not currently have any capital, personnel or transactional relationships that require disclosure.
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(6) |
Purpose of the Acquisition |
Avanir is a biopharmaceutical venture company founded in 1988 in
Southern California and currently has approximately 500 employees. Avanir specializes in treatments for disorders of the central nervous system (CNS) and developed and launched
NUEDEXTA® (dextromethorphan hydrobromide/quinidine sulfate) 20 mg/10 mg capsules, the worlds first and only approved treatment for Pseudobulbar Affect (PBA), a neurologic disorder, in
the United States in February 2011. Sales of NUEDEXTA® in the twelve-month period from July 2013 to June 2014 were US $94 million, a 50% increase year on year. Avanir markets NUEDEXTA® in the United States through its own sales organization of over 300 sales representatives, 150 of whom were hired to accelerate sales growth of NUEDEXTA® as treatment for PBA. The companys pipeline includes programs in Alzheimers disease, Parkinsons disease, migraine, and other CNS-related disorders. Preparations for a Phase-III
clinical trial for AVP-786, a promising new chemical entity targeting the treatment of agitation associated with Alzheimers Disease, are under way.
The acquisition of Avanir is expected to enhance the value of Otsuka Pharmaceuticals business franchise in three ways: 1) acquisition of
NUEDEXTA® for PBA, an indication currently not widely recognized and presenting distinct growth opportunities; 2) acquisition of the late-stage investigational compound AVP-786 in clinical
development to treat agitation associated with Alzheimers disease and; 3) Avanirs clinical development and commercial expertise in neurologic diseases, which complements Otsuka Pharmaceuticals capabilities in psychiatric diseases.
These will accelerate Otsuka Pharmaceuticals existing expansion strategy in the neurologic area, expanding the overall CNS portfolio, inclusive of the psychiatric and neurologic areas, supporting both short-and medium-term growth.
This acquisition is consistent with the Otsuka Groups investment philosophy of focusing on acquisitions of companies and businesses whose
management philosophy, human resources, products and technology enhance corporate value in the long-term and with the Otsuka Groups strategic concepts of creativity and proof through execution.
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(7) |
Total amount of consideration |
Approximately US $3,539 million (calculated using the treasury
stock method)
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Note: |
This amount is derived by multiplying the total number of outstanding shares of Avanir common stock (on a fully diluted basis) by the proposed share price (US $17.00 per share of common stock of Avanir).
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(8) |
Method and Schedule for Avanirs common stock acquisition |
Bigarade Corporation
The Company established an acquisition company, Bigarade Corporation (Acquisition Company), a wholly-owned subsidiary of Otsuka
America, for the purpose of the Acquisition. Subject to completion of the Tender Offer, Acquisition Company is intended to merge with and into Avanir, resulting in Avanir becoming a consolidated subsidiary of the Company.
Avanir Pharmaceuticals, Inc.
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c) |
Type of Stock to be acquired |
Common stock
US $17.00 (seventeen dollars) per share of common stock
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e) |
Capital required for the acquisition |
Approximately US $3,539 million (calculated using the
treasury stock method)
Note: This amount is derived by multiplying the total number of outstanding shares of Avanir common stock (on a
fully diluted basis) by the proposed share price (US $17.00 per share of common stock of Avanir).
The initial Tender Offer Period will commence within 10 business days
from the date the final agreement was reached with Avanir on this matter (December 2, 2014, JST), and will end 20 business days after its commencement.
Furthermore, if the conditions of the Tender Offer are not satisfied, the Company will be obligated to extend the Tender Offer Period under
certain circumstances; however, in no event will the Company be obligated to extend the Tender Offer Period beyond September 2, 2015.
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g) |
Minimum number of shares tendered |
Bigarade Corporation will consummate the tender offer in
the event that more than 50% of the issued and outstanding shares of Avanirs common stock are tendered.
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(9) |
Change in the number of shares of Avanir common stock that the Company owns as a result of the Tender Offer |
Percentage owned prior to the Tender Offer: 0%
Percentage owned after the Tender Offer: 100%*
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* |
Providing that the Company can acquire 100% of Avanirs Common Stock through the Tender Offer and subsequent merger. |
Note to Investors
The tender offer to purchase shares of
Avanir common stock referenced in this report has not yet commenced, and this report is neither an offer to purchase, nor a solicitation of an offer to sell, any securities. The tender offer to purchase shares of Avanir common stock will be made
only pursuant to a Tender Offer Statement on Schedule TO containing an offer to purchase, forms of letters of transmittal and other documents relating to the tender offer (the Tender Offer Statement), which Bigarade Corporation, a
wholly-owned indirect subsidiary of Otsuka Pharmaceutical, will file with the Securities and Exchange Commission (the SEC). Avanir will file with the SEC a Solicitation/Recommendation Statement with respect to the tender offer (the
Recommendation Statement). THE TENDER OFFER STATEMENT AND THE RECOMMENDATION STATEMENT WILL CONTAIN IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY AND CONSIDERED BEFORE ANY DECISION IS MADE WITH RESPECT TO THE TENDER OFFER. Both the
Tender Offer Statement and the Recommendation Statement will be mailed to Avanir stockholders free of charge. Investors and security holders of Avanir also are advised that they may also obtain free copies of the Tender Offer Statement and other
documents filed by Bigarade Corporation with the SEC (when these documents become available) and the Recommendation Statement and other documents filed by Avanir (when these documents become available) on the SECs website at www.sec.gov.
Forward-looking Statements
Certain statements contained
in this report, including without limitation expectations as to future sales and operating results, constitute forward-looking statements. Forward-looking statements in this report include statements regarding the anticipated benefits of the
transaction; statements regarding the anticipated timing of filings and approvals relating to the transaction; statements regarding the expected timing of the completion of the transaction; and any statements of assumptions underlying any of the
foregoing. Words such as expects, anticipates, believes, plans, intends, estimates, projects, forecasts, outlook, and similar expressions are
also intended to identify forward-looking statements. The statements involve known and unknown risks, uncertainties, and other factors which may cause the companys actual results, earnings, performance, or achievements to be materially
different from any future results, performance, or achievements expressed or implied by such forward-looking statements. Such factors include, but are not limited to, the following: general industry and market conditions, general domestic and
international economic conditions such as interest rate and currency exchange fluctuations, technological advances and patents attained by competitors, challenges inherent in new product
development and clinical trials, claims and concerns about product safety and efficacy, obtaining regulatory approvals, domestic and foreign healthcare reforms, and healthcare cost containment,
laws and regulations affecting domestic and foreign operations, and failure to gain market acceptance or third-party consents. Risks and uncertainties that could cause results to differ from expectations also include: uncertainties as to the timing
of the tender offer and merger; uncertainties as to how many Avanir stockholders will tender their stock in the offer; the risk that competing offers will be made; and the possibility that various closing conditions for the transaction may not be
satisfied or waived, including that a governmental entity may prohibit, delay or refuse to grant approval for the consummation of the transaction. We will not undertake and specifically decline any obligation to update or correct any forward-looking
statements to reflect events or circumstances after the date of such statements or to reflect the occurrence of anticipated or unanticipated events.