Amended Statement of Ownership: Solicitation (sc 14d9/a)
August 19 2016 - 3:28PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
14D-9
(Rule 14d-101)
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
(Amendment No. 2)
SEQUENOM,
INC.
(Name of Subject Company)
SEQUENOM,
INC.
(Name of Person Filing Statement)
Common Stock,
$0.001 par value per share
(Title of Class of Securities)
817337405
(CUSIP Number
of Class of Securities)
Dirk van den Boom, Ph.D.
President, Chief Executive Officer and Director
3595 John Hopkins Court
San Diego, California 92121
(858) 202-9000
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and Communications
on Behalf of the Person Filing Statement)
With copies to:
L. Kay Chandler, Esq.
Rama Padmanabhan, Esq.
Barbara L. Borden, Esq.
Cooley LLP
4401 Eastgate
Mall
San Diego, CA 92121
(858) 550-6000
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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This Amendment No. 2 (this Amendment) to Schedule 14D-9 amends and supplements
the Solicitation/Recommendation Statement on Schedule 14D-9 (as amended or supplemented from time to time, the Schedule 14D-9) previously filed by Sequenom, Inc., a Delaware corporation (Sequenom), with the Securities and
Exchange Commission on August 9, 2016, relating to the offer by Laboratory Corporation of America Holdings, a Delaware corporation (Parent) and Savoy Acquisition Corp., a Delaware corporation and a direct wholly owned subsidiary of
Parent (Purchaser), to purchase all of the issued and outstanding shares of Sequenom common stock, including the associated preferred stock purchase rights issued under the Rights Agreement, dated March 3, 2009, as amended, between
Sequenom and American Stock Transfer & Trust Company (such stock and associated rights, the Shares), for $2.40 per Share, net to the seller in cash, without interest and less any applicable withholding taxes or other taxes, upon
the terms and subject to the conditions set forth in the Offer to Purchase, dated August 9, 2016, and in the related Letter of Transmittal, each of which may be amended or supplemented from time to time.
Except as otherwise set forth below, the information set forth in the Schedule 14D-9 remains unchanged and is incorporated by reference as
relevant to the items in this Amendment. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Schedule 14D-9. This Amendment is being filed to reflect certain updates as reflected below.
Item 8. Additional Information.
Item 8 of the Schedule 14D-9 is hereby amended and restated by deleting the paragraph under the heading Legal Proceedings on
page 36 of the Schedule 14D-9 and replacing it with the following paragraph:
Between August 15, 2016 and August 17, 2016,
two putative class-action lawsuits were filed on behalf of purported Sequenom stockholders (captioned
Malkoff v. Sequenom, Inc., et al.
, No. 16-cv-02054-JAH-BLM and
Gupta v. Sequenom, Inc., et al.
, No. 16-cv-02084-JAH-KSC) in
the United States District Court for the Southern District of California against (a) Sequenom and (b) the members of our Board of Directors (the Individual Defendants). The complaints allege the defendants violated
Sections 14(e) and 14(d)(4) of the Securities Exchange Act of 1934 by failing to disclose material information in the 14D-9 regarding the Individual Defendants potential conflicts of interest, the events leading up to the signing of the
Merger Agreement, certain financial data and projections regarding the Company, and certain inputs underlying J.P. Morgans financial analysis. The complaints also allege the Individual Defendants violated Section 20(a) of the Securities
Exchange Act of 1934 as controlling persons who had the ability to prevent the Schedule 14D-9 from being materially false and misleading. In addition, the complaint in the
Malkoff
action alleges the Individual Defendants breached their
fiduciary duties by agreeing to the Merger Agreement for insufficient consideration and with inadequate disclosures. Both actions seek among other things, an injunction against the consummation of the proposed Transactions, an award of damages
caused by the Individual Defendants, and an award of costs and expenses, including a reasonable allowance for attorneys and experts fees. On August 18, 2016, the plaintiff in the
Gupta
action filed a motion to enjoin the
proposed Transactions (the Motion for Preliminary Injunction). On August 19, 2016, the court in the
Gupta
action issued an order setting a briefing schedule for defendants response to the Motion for Preliminary
Injunction and scheduling a hearing on the Motion for Preliminary Injunction for September 1, 2016.
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.
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SEQUENOM, INC.
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By:
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/s/ Jeffrey D. Linton
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Name:
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Jeffrey D. Linton
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Title:
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Senior Vice President, General Counsel and Secretary
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Dated: August 19, 2016
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