UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment
No. 1
to
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or
13(e)(1) of
the Securities Exchange Act of 1934
ANADYS PHARMACEUTICALS, INC.
(
Name of Subject Company
)
BRYCE ACQUISITION
CORPORATION
HOFFMANN-LA ROCHE INC.
(
Names of Filing Persons Offeror
)
Common Stock,
Par Value $0.001 Per Share
(
Title of Class of Securities
)
03252Q408
(
Cusip Number of Class of Securities
)
Frederick C. Kentz III
Hoffmann-La Roche Inc.
340 Kingsland Street
Nutley, New Jersey 07110
Telephone: (973) 235-5000
(
Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Filing Persons
)
Copies to:
Marc O. Williams, Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
¨
|
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.
|
¨
|
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. 1 (
Amendment No. 1
) to the Tender Offer
Statement on Schedule TO (the
Schedule TO
) amends and supplements the statement originally filed on October 25, 2011 by Hoffmann-La Roche Inc., a New Jersey corporation (
Parent
), and Bryce Acquisition
Corporation, a Delaware corporation and wholly owned subsidiary of Parent (the
Purchaser
). This Schedule TO relates to the offer by Purchaser to purchase all outstanding shares of common stock, par value $0.001 per share (the
Shares
) of Anadys Pharmaceuticals, Inc., a Delaware corporation, at $3.70 per Share, net to the seller in cash, without interest and less applicable withholding taxes, upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated October 25, 2011 (the
Offer to Purchase
), and in the related Letter of Transmittal.
All capitalized terms used in this Amendment No. 1 without definition have the meanings ascribed to them in the Schedule TO.
The items of the Schedule TO are hereby amended and supplemented as set forth below.
Item 1. Summary Term Sheet.
Item 1 of the Schedule TO is
hereby amended and supplemented by adding the following text after the last word in the first sentence under the heading When and how will I be paid for my tendered shares? on page 4 of the Offer to Purchase: and only if all
conditions, other than those conditions dependent upon the receipt of government approvals, have been satisfied or waived at or prior to the expiration of the tender offer.
Item 4. Terms of the Transaction.
Item 4 of the Schedule TO is hereby amended and supplemented by:
Deleting the following text from the first sentence under the heading Determination of Validity on page 14 of the Offer to Purchase: , and our determination shall be final and
binding.
Adding the following sentence after the second sentence under the heading Determination
of Validity on page 14 of the Offer to Purchase: Tendering stockholders have the right to challenge our determination with respect to their Shares.
Adding the following text after the second comma in the first paragraph above the heading Material Adverse Effect on page 37 of the Offer to Purchase: on or prior to the Expiration Date
(and thereafter in relation to any conditions dependent upon the receipt of government approvals).
Item 11.
Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented by deleting the paragraph
under the heading Certain Litigation Relating to the Offer on page 40 of the Offer to Purchase and replacing it with the following paragraph:
Beginning on October 20, 2011, three separate, putative class action lawsuits challenging the merger were filed in the Superior Court of the State of California, County of San Diego. These lawsuits,
captioned
Hammad v. Anadys Pharmaceuticals, Inc.
(Case No. 37-2011-00099789-CU-BT-CTL),
Maestro v. Anadys Pharmaceuticals, Inc.
(Case No. 37-2011-00099895-CU-SL-CTL) and
Shabtai v. Worland
(Case
No. 37-2011-00099995-CU-SL-CTL), were filed against the Company, the individual members of the Companys board of directors, Purchaser and Parent. The
Maestro
action also names the Guarantor as a defendant. On October 25,
2011, the Superior Court of the State of California, County of San Diego entered an order that, among other things, consolidated the
Hammad v. Anadys Pharmaceuticals, Inc.
and
Maestro v. Anadys Pharmaceuticals, Inc.
lawsuits under the
caption
In re Anadys Pharmaceuticals, Inc. Shareholder Litigation
(Case No. 37-2011-00099789-CU-BT-CTL), designated the
Hammad v. Anadys Pharmaceuticals, Inc.
complaint as the operative complaint, and appointed co-lead counsel for
plaintiffs and liaison counsel for plaintiffs. The lawsuits generally allege, among other things, that the members of the Companys board of directors breached their fiduciary duties owed to the Companys stockholders by approving the
proposed merger and entering into a merger agreement containing preclusive deal-protection
devices, by failing to take steps to maximize value to the Companys stockholders, and by ignoring alleged conflicts of interest. The lawsuits also allege that the Company, Purchaser,
Parent, and/or Guarantor aided and abetted such breaches of fiduciary duties. On November 4, 2011, the plaintiffs in
In re Anadys Pharmaceuticals, Inc. Shareholder Litigation
filed a consolidated complaint, which, in addition to the
aforementioned claims, alleges that the Schedule 14D-9 filed by thse Company with the SEC on October 25, 2011 contains material misstatements and/or omissions. The plaintiffs in these actions generally seek, among other things, declaratory
and injunctive relief concerning the alleged breaches of fiduciary duty, injunctive relief prohibiting consummation of the proposed merger, damages and attorneys fees and costs, and other forms of relief. We believe these lawsuits are without
merit and will defend against them vigorously.
SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certify that the information set forth in this statement is true, complete and correct.
Date: November 8, 2011
|
|
|
BRYCE ACQUISITION CORPORATION
|
|
|
By:
|
|
/s/ David P. McDede
|
|
|
Name: David P. McDede
|
|
|
Title: Vice President and Treasurer
|
|
|
|
HOFFMANN-LA ROCHE INC.
|
|
|
By:
|
|
/s/ David P. McDede
|
|
|
Name: David P. McDede
|
|
|
Title: Vice President and Treasurer
|
Anadys (NASDAQ:ANDS)
Historical Stock Chart
From Aug 2024 to Sep 2024
Anadys (NASDAQ:ANDS)
Historical Stock Chart
From Sep 2023 to Sep 2024