- Amended tender offer statement by Third Party (SC TO-T/A)
June 17 2010 - 4:19PM
Edgar (US Regulatory)
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
(Amendment No. 6)
JAVELIN
PHARMACEUTICALS, INC.
(Name of Subject Company (Issuer))
DISCUS
ACQUISITION CORPORATION
a wholly-owned subsidiary of
HOSPIRA, INC.
(Names of Filing Persons (Offerors))
Common Stock, par value $0.001 per share
(Title of Class Securities)
471894105
(CUSIP Number of Class of Securities)
Brian J. Smith
Senior Vice President, General Counsel and Secretary
Hospira, Inc.
Dept. NLEG, Bldg. H1
275 North Field Drive
Lake Forest, Illinois 60045-5045
(224) 212-2000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and
Communications on Behalf of Filing Persons)
With copies to:
Craig A. Roeder
Michael F. DeFranco
Baker & McKenzie LLP
One Prudential Plaza
130 East Randolph Drive
Chicago, Illinois 60601
(312) 861-8000
CALCULATION OF FILING FEE
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Transaction Valuation(1)
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Amount of Filing Fee(2)
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$145,593,701
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$10,380.83
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(1)
Estimated for purposes of
calculating the filing fee only. This amount is the sum of (i) 64,423,345
shares of common stock of Javelin Pharmaceuticals, Inc. outstanding as of April 9,
2010, multiplied by $2.20 per share, which is the offer price, plus (ii) $3,862,342
expected to be paid in connection with the cancellation of outstanding stock
options, restricted stock units, deferred stock units and warrants.
(2)
The filing fee was
calculated in accordance with Rule 0-11 under the Securities Exchange Act
of 1934, as amended, and Fee Rate Advisory for fiscal year 2010, issued December 2009,
by multiplying the transaction value by 0.00007130.
x
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:
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$10,381.00
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Filing
Party:
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Hospira, Inc.
and Discus Acquisition Corporation
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Form or
Registration No.:
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Schedule
TO-T
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Date
Filed:
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April 21,
2010
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o
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:
x
third-party tender offer
subject to Rule 14d-1.
o
issuer tender offer subject
to Rule 13e-4.
o
going-private transaction
subject to Rule 13e-3.
o
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:
o
This Amendment No. 6 (this “Amendment”) amends and supplements the
Tender Offer Statement on Schedule TO (together with any amendments and
supplements thereto, the “Schedule TO”) filed with the Securities and Exchange
Commission on April 21, 2010 by Discus Acquisition Corporation, a Delaware
corporation (the “Purchaser”), and Hospira, Inc., a Delaware corporation
and the corporate parent of the Purchaser (the “Parent”). The Schedule TO
relates to the offer by the Purchaser to purchase all of the outstanding shares
of common stock, par value $0.001 per share (the “Shares”), of Javelin
Pharmaceuticals, Inc., a Delaware corporation, at a purchase price of
$2.20 per Share, net to the seller in cash, without interest and less any
required withholding taxes, upon the terms and subject to the conditions set
forth in the Offer to Purchase dated April 21, 2010 (together with any
amendments and supplements thereto, the “Offer to Purchase”) and in the related
Letter of Transmittal, copies of which were filed with the Schedule TO as
Exhibits (a)(1)(A) and (a)(1)(B), respectively. Capitalized terms used and
not defined herein will have the meanings assigned to such terms in the Offer
to Purchase or in the Schedule TO.
Items 1, 4 and 11. Summary Term Sheet; Terms of the
Transaction; Additional Information.
Item
1 of the Schedule TO, which incorporates by reference the information set forth
in the section of the Offer to Purchase entitled “Summary Term Sheet,” and
Items 4 and 11(b) of the Schedule TO, which incorporate by reference the
information set forth in the Offer to Purchase, are hereby amended and
supplemented to include the following information:
On
June 17, 2010, the Parent issued a press release announcing that it had
extended the Offer until 12:00 midnight, New York City time, on June 30,
2010 (the end of the day on June 30, 2010), unless further extended. The
Offer was previously scheduled to expire at 12:00 midnight, New York City time,
on June 16, 2010 (the end of the day on June 16, 2010).
As
of the close of business on June 16, 2010, the prior expiration date of
the Offer, a total of 51,821,576 Shares (including 2,299,051 Shares tendered
pursuant to guaranteed delivery procedures), representing approximately 79.99
percent of the outstanding Shares, had been validly tendered and not withdrawn.
A
copy of the press releases issued by the Parent is attached hereto as Exhibit (a)(5)(I) and
is incorporated herein by reference.
Item 12
.
Exhibits
.
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Item
12 of the Schedule TO is hereby amended and supplemented to include the
following exhibits:
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(a)(5)(I)
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Press
Release issued by Hospira, Inc. on June 17, 2010
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(d)(6)
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Notice
of Offer Extension delivered by Hospira, Inc. to Javelin
Pharmaceuticals, Inc. on June 16, 2010
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2
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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Date:
June 17, 2010
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HOSPIRA, INC.
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By:
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/s/
Brian J. Smith
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Name:
Brian J. Smith
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Title:
Senior Vice President
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DISCUS
ACQUISITION CORPORATION
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By:
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/s/
Brian J. Smith
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Name:
Brian J. Smith
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Title:
Vice President and Secretary
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3
EXHIBIT INDEX
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Exhibit
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Exhibit Name
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(a)(1)(A)*
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Offer
to Purchase, dated April 21, 2010
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(a)(1)(B)*
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Letter
of Transmittal (including Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9)
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(a)(1)(C)*
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Notice
of Guaranteed Delivery
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(a)(1)(D)*
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Letter
to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
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(a)(1)(E)*
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Letter
to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees
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(a)(5)(A)*
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Joint
Press Release issued by Hospira, Inc. and Javelin Pharmaceuticals, Inc. on
April 19, 2010 (incorporated by reference to Exhibit 99.1 to Hospira, Inc.’s
Tender Offer Statement on Schedule TO filed with the Securities and Exchange
Commission on April 19, 2010)
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(a)(5)(B)*
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Summary
Newspaper Advertisement as published in
The New York Times
on April 21, 2010
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(a)(5)(C)*
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Press
Release issued by Hospira, Inc. on May 19, 2010
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(a)(5)(D)*
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Press
Release issued by Hospira, Inc. on June 3, 2010
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(a)(5)(E)*
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Complaint
filed by Javelin Pharmaceuticals, Inc. in the Court of Chancery of the State
of Delaware on June 2, 2010 (incorporated by reference to Exhibit (a)(17) to
Javelin Pharmaceuticals, Inc.’s Amendment No. 4 to its Solicitation /
Recommendation Statement on Schedule 14D-9, filed with the Securities and
Exchange Commission on June 3, 2010)
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(a)(5)(F)*
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Press
Release issued by Javelin Pharmaceuticals, Inc. on June 3, 2010 (incorporated
by reference to Exhibit (a)(18) to Javelin Pharmaceuticals, Inc.’s Amendment
No. 4 to its Solicitation / Recommendation Statement on Schedule 14D-9, filed
with the Securities and Exchange Commission on June 3, 2010)
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(a)(5)(G)*
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Press
Release issued by Javelin Pharmaceuticals, Inc. on June 7, 2010 (incorporated
by reference to Exhibit (a)(21) to Javelin Pharmaceuticals, Inc.’s Amendment
No. 5 to its Solicitation / Recommendation Statement on Schedule 14D-9, filed
with the Securities and Exchange Commission on June 7, 2010)
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(a)(5)(H)*
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Press
Release issued by Javelin Pharmaceuticals, Inc. on June 11, 2010
(incorporated by reference to Exhibit (a)(22) to Javelin Pharmaceuticals,
Inc.’s Amendment No. 6 to its Solicitation / Recommendation Statement on
Schedule 14D-9, filed with the Securities and Exchange Commission on June 11,
2010)
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(a)(5)(I)
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Press
Release issued by Hospira, Inc. on June 17, 2010
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(b)
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Not
applicable
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(d)(1)*
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Agreement
and Plan of Merger, dated April 17, 2010, by and among Hospira, Inc., Discus
Acquisition Corporation and Javelin Pharmaceuticals, Inc. (incorporated by
reference to Exhibit 2.1 to Javelin Pharmaceuticals, Inc.’s Current Report on
Form 8-K filed with the Securities and Exchange Commission on April 19, 2010,
File No. 001-32949)
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(d)(2)*
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Loan
and Security Agreement, dated April 17, 2010, by and among Hospira, Inc.,
Javelin Pharmaceuticals, Inc. and Innovative Drug Delivery Systems, Inc.
(incorporated by reference to Exhibit 10.1 to Javelin Pharmaceuticals, Inc.’s
Current Report on Form 8-K filed with the Securities and Exchange Commission
on April 19, 2010, File No. 001-32949)
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(d)(3)*
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Confidentiality
Agreement, dated April 8, 2010, by and between Hospira, Inc. and Javelin
Pharmaceuticals, Inc.
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4
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(d)(4)*
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Notice
of Offer Extension delivered by Hospira, Inc. to Javelin Pharmaceuticals,
Inc. on May 19, 2010
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(d)(5)*
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Notice
of Offer Extension delivered by Hospira, Inc. to Javelin Pharmaceuticals,
Inc. on June 3, 2010
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(d)(6)
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Notice
of Offer Extension delivered by Hospira, Inc. to Javelin Pharmaceuticals,
Inc. on June 16, 2010
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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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* Previously filed.
5
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