- Amended tender offer statement by Third Party (SC TO-T/A)
11 Junio 2010 - 3:55PM
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. 5)
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
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.
R
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.
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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£
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:
R
third-party tender offer subject to Rule 14d-1.
£
issuer tender offer subject to Rule 13e-4.
£
going-private transaction subject to Rule 13e-3.
£
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 Amendment No. 5
(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.
Item
11.
Additional Information.
Item 11(a)(5) of the
Schedule TO, which incorporates by reference the information set forth in the
section of the Offer to Purchase entitled Certain Legal Matters; Regulatory
Approvals, is hereby amended and supplemented to include the following
information:
On June 10, 2010,
the Parent funded a $2 million loan to the Company and IDDS for working capital
and general corporate purposes under the Loan and Security Agreement.
A copy of the press
release issued by the Company on June 11, 2010 announcing the matter above
is attached hereto as Exhibit (a)(5)(H) and is incorporated herein by
reference.
Item
12
.
Exhibits
.
Item 12 of the Schedule
TO is hereby amended and supplemented to include the following exhibit:
(a)(5)(H)
Press Release issued by Javelin
Pharmaceuticals, Inc. on June 11, 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.
Date:
June 11, 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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EXHIBIT INDEX
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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(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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(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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(g)
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Not applicable
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(h)
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Not applicable
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* Previously
filed.
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