- Amended tender offer statement by Third Party (SC TO-T/A)
June 29 2010 - 2:42PM
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. 7)
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. 7 (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(b) of the Schedule TO, which incorporates by reference the information
set forth in the Offer to Purchase, is hereby amended and supplemented to
include the following information:
On
June 28, 2010, the Parent issued a press release announcing its intention
to complete the Offer upon its currently scheduled expiration at 12:00
midnight, New York City time, on June 30, 2010 (the end of the day on June 30,
2010). The Company has notified the
Parent that it is prepared to deliver a closing certificate in accordance with
the Merger Agreement confirming the accuracy of its representations and
warranties and its performance of all of its obligations under the Merger
Agreement as of the end of the current Offer period. Based on the Companys notification, the
Parent expects that all of the conditions to the Offer will be satisfied upon
its currently scheduled expiration and intends to accept for payment, purchase
and promptly pay for all Shares validly tendered and not validly withdrawn
prior to the expiration of the Offer.
Following
the consummation of the Offer, the Parent intends to acquire any remaining
outstanding Shares not tendered into the Offer by means of a merger under
Delaware law. Upon completion of the Merger, the Company will become a wholly
owned subsidiary of the Parent, the 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 is attached hereto as Exhibit (a)(5)(J) 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)(J) Press Release issued by Hospira, Inc. on June 28,
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 29, 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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(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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(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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(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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