JAV Javelin Pharmaceuticals

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 14D-9

SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934

(Amendment No. 5)

JAVELIN PHARMACEUTICALS, INC.

(Name of Subject Company)

JAVELIN PHARMACEUTICALS, INC.

(Name of Person(s) Filing Statement)

Common Stock, par value $0.001 per share
(Title of Class of Securities)

471894105
(CUSIP Number of Class of Securities)

Martin J. Driscoll
Chief Executive Officer
Javelin Pharmaceuticals, Inc.
125 CambridgePark Drive
Cambridge, MA 02140
(617) 349-4500
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of the Person(s) Filing Statement)

With a copy to:

Paul M. Kinsella, Esq.
Marc A. Rubenstein, Esq.
Ropes & Gray LLP
One International Place
Boston, Massachusetts 02110
(617) 951-7000

o Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

 

Purpose of the Amendment

     This Amendment No. 5 (“Amendment No. 5”) amends the Solicitation/Recommendation Statement on Schedule 14D-9, as originally filed with the Securities and Exchange Commission (“SEC”) on April 22, 2010 and as amended by Amendment No. 1 filed with the SEC on May 11, 2010, Amendment No. 2 filed with the SEC on May 19, 2010, Amendment No. 3 filed with the SEC on May 24, 2010, and Amendment No. 4 filed with the SEC on June 3, 2010 (the “Schedule 14D-9”) by Javelin Pharmaceuticals, Inc., a Delaware corporation (the “Company” or “Javelin”). The Schedule 14D-9 and this Amendment No. 5 relate to the tender offer by Discus Acquisition Corp., a Delaware corporation (“Offeror”), a wholly-owned subsidiary of Hospira, Inc., a Delaware corporation (“Hospira”), to purchase all of the outstanding shares of common stock of the Company, par value $0.001 per share (the “Shares”), at a purchase price of $2.20 per Share, net to the selling stockholders in cash, without interest thereon 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 (the “Offer to Purchase”), and in the related Letter of Transmittal (which, together with the Offer to Purchase, constitutes the “Offer”). The Offer is described in a Tender Offer Statement on Schedule TO (as amended or supplemented from time to time, the “Schedule TO”), filed by Hospira and Offeror with the SEC on April 21, 2010. The Offer to Purchase and related Letter of Transmittal were filed as Exhibits (a)(2) and (a)(3), respectively, to the Schedule 14D-9.

     The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of April 17, 2010, by and among Hospira, Offeror and the Company, pursuant to which, following the satisfaction or waiver of certain conditions and the consummation of the Merger, Offeror will be merged with and into the Company and the Company, as the surviving corporation, will be a wholly-owned subsidiary of Hospira.

     Capitalized terms used, but not otherwise defined, in this Amendment No. 5 shall have the meanings given in the Schedule 14D-9. All information in the Schedule 14D-9 is incorporated by reference in this Amendment No. 5, except that such information is hereby amended to the extent specifically provided herein.

Item 8. Additional Information.

Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding Item 8(m) as follows:

“ (m) Javelin Receives Notice from Hospira of Funding of Loan; Delaware Court of Chancery Grants Javelin’s Motion for Expedited Proceedings.

     On June 7, 2010, Javelin issued a press release announcing that on June 4, 2010, Javelin received notice from Hospira that Hospira will fund a $2 million loan to Javelin on June 10, 2010 under the existing loan agreement between Javelin and Hospira.

     Javelin was also informed on June 4, 2010 that the Delaware Court of Chancery has granted Javelin’s motion to expedite proceedings, and a trial date of July 26, 2010 has been set for the lawsuit filed by Javelin against Hospira and Offeror, seeking to compel Hospira and Offeror to complete the agreed-upon merger pursuant to the Merger Agreement.

     The full text of the press release issued by Javelin is attached hereto as Exhibit (a)(21) and is incorporated herein by reference.”

Item 9. Exhibits.

Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following exhibit:

Exhibit No.		Description
(a)(21)		Press Release issued by Javelin Pharmaceuticals, Inc. on June 7, 2010.

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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