This Amendment No. 2 to the Tender Offer Statement on Schedule TO (this “Amendment”) is filed by: (i) Charlie Acquisition Corp., a Delaware corporation (“Purchaser”) and a wholly-owned indirect subsidiary of H. Lundbeck A/S, a Danish corporation (“Lundbeck”) and (ii) Lundbeck. This Amendment amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on May 23, 2014 (together with any amendments and supplements thereto, the “Schedule TO”), and relates to the offer by Purchaser to purchase all of the issued and outstanding shares of common stock of Chelsea Therapeutics International, Ltd., a Delaware corporation (“Chelsea”), par value $0.0001 per share (“Shares”), for (a) $6.44 per Share, net to the seller in cash, without interest, plus (b) one non-transferable contingent value right per Share, which represents the contractual right to receive a cash payment of up to $1.50 per Share upon the achievement of certain sales milestones, in each case subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated May 23, 2014 (together with any amendments and supplements thereto, the “Offer to Purchase”) and in the related Letter of Transmittal, copies of which are attached to the Schedule TO as exhibits (a)(1)(A) and (a)(1)(B), respectively.
Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Offer to Purchase.
Items 1 through 9 and Item 11.
The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented by:
Amending and supplementing (i) “Do you have the financial resources to make payment and is your financial condition relevant to my decision to tender any Shares in the Offer?” in the “Summary Term Sheet” to include the following new paragraph as the penultimate paragraph under such heading and (ii) Section 9 —
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Source and Amount of Funds” to include the following new paragraph as the final paragraph in such section:
“While, for the reasons stated above, we do not believe our financial condition is material to your decision to tender Shares in the Offer, you should consider the following in connection with your decision to tender Shares:
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Lundbeck’s future financial condition could deteriorate such that Lundbeck would not have sufficient funds to make the payments that may become payable with respect to the CVRs;
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holders of CVRs will have no greater rights against Lundbeck than those accorded to general, unsecured creditors under applicable law;
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the CVRs will be effectively subordinated in right of payment to all of Lundbeck’s secured obligations to the extent of the collateral securing such obligations;
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the CVRs will be effectively subordinated to all existing and future indebtedness, claims of holders of capital stock and other liabilities, including trade payables, of Lundbeck’s subsidiaries; and
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the filing of a bankruptcy petition by, or on behalf of, Lundbeck may prevent Lundbeck from making some or all payments that may become payable with respect to the CVRs.”
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Amending and supplementing Section 11—“The Transaction Agreements—Contingent Value Rights Agreement” by adding the following sentence to the end of the penultimate paragraph of such section:
“CVR holders are third party beneficiaries under the CVR Agreement.”
Amending and restating the last sentence in Section 15—“Certain Conditions of the Offer” in its entirety to read as follows:
“If a condition to the Offer is not satisfied as a result of events that occur or do not occur while the Offer is pending and Lundbeck and Purchaser thereafter determine that such condition is incapable of satisfaction, Lundbeck and Purchaser will promptly disclose to Chelsea stockholders whether Lundbeck and Purchaser intend to assert such condition and, subject to compliance with the Merger Agreement, terminate the Offer or waive such condition and proceed with the Offer.”