- Amended tender offer statement by Third Party (SC TO-T/A)
01 Julio 2010 - 4:20PM
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. 8)
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.
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:
x
This Amendment No. 8 (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 8 and 11. Interest in Securities of the Subject
Company; Additional Information.
Item
8 of the Schedule TO, which incorporates by reference the information set forth
in the section of the Offer to Purchase entitled Certain Information
Concerning the Parent and the Purchaser, Purpose of the Offer; Plans for the
Company and The Transaction Agreements, and Item 11(b) of the Schedule
TO, which incorporates by reference the information set forth in the Offer to
Purchase, are hereby amended and supplemented to include the following
information:
On
July 1, 2010, the Parent and the Company each issued a press release
announcing the successful completion of the Offer.
As
previously announced, the Offer expired at 12:00 midnight, New York City time,
on June 30, 2010 (the end of the day on June 30, 2010) and was not
extended. The Depositary has advised the
Parent that as of the expiration of the Offer, 51,346,299 Shares representing
approximately 79.16% of the outstanding Shares were validly tendered and not
withdrawn and have been accepted by the Parent for payment. The Parent will
purchase and pay for all such Shares promptly.
In
accordance with the Merger Agreement, the Parent exercised its top-up option on
July 1, 2010 to increase its ownership percentage of the Shares through
the purchase from the Company of newly issued Shares at the same $2.20 per Share
paid in the Offer in order to allow the Parent to effect a short-term merger
under Delaware law without the need for a Company stockholder vote or meeting.
The
Parent intends to promptly complete the Merger on or about July 2,
2010. As a result of the Merger, any
remaining Shares will be converted into the right to receive the offer price of
$2.20 per Share in cash paid in the Offer, without interest and less any
required withholding taxes (other than Shares for which appraisal right are
validly exercised under Delaware law and any Shares owned by the Parent or any
of its subsidiaries). Upon completion of the Merger, the Company will become a
wholly owned subsidiary of the Parent, its Shares will cease to be traded on
the NYSE Amex, and the Company will no longer be required to file certain
information and periodic reports with the SEC.
A
copy of the press releases issued by the Parent and the Company on July 1,
2010 are attached hereto as Exhibits (a)(5)(K) and (a)(5)(L) respectively,
and are incorporated herein by reference.
Item 12
.
Exhibits
.
Item
12 of the Schedule TO is hereby amended and supplemented to include the
following exhibits:
(a)(5)(K)
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Press
Release issued by Hospira, Inc. on July 1, 2010
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(a)(5)(L)
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Press Release issued by
Javelin Pharmaceuticals, Inc. on July 1, 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.
Date:
July 1,
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
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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(a)(5)(J)*
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Press
Release issued by Hospira, Inc. on June 28, 2010
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(a)(5)(K)
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Press
Release issued by Hospira, Inc. on July 1, 2010
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(a)(5)(L)
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Press
Release issued by Javelin Pharmaceuticals, Inc. on July 1, 2010
(incorporated by reference to Exhibit (a)(25) to Javelin Pharmaceuticals,
Inc.s Amendment No. 8 to its Solicitation / Recommendation
Statement on Schedule 14D-9, filed with the Securities and Exchange
Commission on July 1, 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
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4
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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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(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.
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