Form SC TO-T/A Sagent Pharmaceuticals, Filed by: Shepard Vision, Inc.

 

 

UNITED STATES

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. 2)

 

 

SAGENT PHARMACEUTICALS, INC.

(Name of Subject Company)

 

 

SHEPARD VISION, INC.

(Name of Offeror)

A Wholly-Owned Subsidiary of

 

NICHI-IKO PHARMACEUTICAL CO., LTD.

(Name of Offerors)

(Names of Filing Persons (identifying status as offeror, issuer or other person))

 

 

Common Stock, $0.01 par value per share

(Title of Class of Securities)

786692103

(CUSIP Number of Class of Securities)

 

 

Mr. Kenji Matsuyama

Senior Director

Nichi-Iko Pharmaceutical Co., Ltd.

5-4 Nihonbashi-Honcho 1-chome

Chuo-ku, Tokyo, Japan 103-0023

+81-3-3276-0215

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)

 

 

Copy to:

 

Masakazu Iwakura		Toby S. Myerson
Nishimura & Asahi Otemon Tower, 1-1-2 Otemachi, Chiyoda-ku, Tokyo, 100-8124, Japan +81-3-6250-6200		Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue of the Americas New York, NY 10019-6064 (212) 373-3000

 

 

CALCULATION OF FILING FEE

 

Transaction Valuation*		Amount of Filing Fee**
$734,695,947		$73,983.90

*

Estimated solely for purposes of calculating the filing fee. The transaction valuation was calculated by adding (i) 33,088,222 outstanding shares of common stock of Sagent Pharmaceuticals, Inc. (“Sagent”), par value $0.01 per share (the “Shares”), multiplied by the offer price of $21.75 per Share, (ii) 1,849,185 Shares issuable pursuant to outstanding options with an exercise price less than the offer price of $21.75 per Share, multiplied by $5.90, which is the offer price of $21.75 per Share minus the weighted average exercise price for such options of $15.85 per Share, and (iii) 189,284 restricted stock units multiplied by the offer price of $21.75 per Share. The calculation of the filing fee is based on information provided by Sagent as of July 26, 2016.

**	The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for fiscal year 2016, issued August 27, 2015 by multiplying the transaction value by .0001007.

 

x	Check 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: $73,983.90		Filing Party: Nichi-Iko Pharmaceutical Co., Ltd. and Shepard Vision, Inc.
Form or Registration No.: Schedule TO		Date Filed: August 1, 2016

 

¨	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.  ¨

 

 

 

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This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (as amended and together with any subsequent amendments and supplements thereto, the “Schedule TO”), filed with the Securities and Exchange Commission on August 1, 2016 by Shepard Vision, Inc., a Delaware corporation (“Purchaser”) and a wholly-owned subsidiary of Nichi-Iko Pharmaceutical Co., Ltd., a joint stock corporation organized under the laws of Japan (“Parent”). The Schedule TO relates to the offer by Purchaser to purchase all of the outstanding shares of common stock, $0.01 par value per share (the “Shares”), of Sagent Pharmaceuticals, Inc., a Delaware corporation (“Sagent”), at a price of $21.75 per Share (the “Offer Price”) net to the holder in cash, without interest, subject to any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated August 1, 2016 (together with any amendments and supplements thereto, the “Offer to Purchase”), and in the related letter of transmittal (together with any amendments and supplements thereto, the “Letter of Transmittal”), copies of which are attached hereto as Exhibits (a)(1)(i) and (a)(1)(ii), respectively, which Offer to Purchase and Letter of Transmittal collectively constitute the “Offer”.

The information in the Offer to Purchase and the Letter of Transmittal is incorporated in this Amendment by reference to all of the applicable items in the Schedule TO, except that such information is amended and supplemented to the extent specifically provided in this Amendment. Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Offer to Purchase or in the Schedule TO.

Amendments to the Offer to Purchase

Item 11. Additional Information.

Item 11 of the Schedule TO is hereby amended and supplemented as follows:

Item 11 of the Schedule TO and the disclosure under Section 15 “Conditions to the Offer” of the Offer to Purchase are hereby amended and supplemented by inserting the following paragraph to the end of such Section 15:

“The condition to the Offer requiring that any waiting period (and any extensions thereof) under the HSR Act applicable to the Transactions shall have expired or been terminated has been satisfied by the expiration of the HSR Act waiting period, effective August 8, 2016 at 11:59 p.m. (Eastern Time).

Even though the requisite waiting period under the HSR Act has expired, at any time if the Antitrust Division (as defined below) or the FTC believes before or after Purchaser’s acceptance for payment of Shares pursuant to the Offer that the Offer would violate the U.S. federal antitrust laws by substantially lessening competition in any line of commerce affecting U.S. consumers, the FTC and the Antitrust Division have the authority to challenge the Transactions by seeking a federal court order enjoining the Transactions, or if the Shares have already been acquired, requiring disposition of such Shares or the divestiture of substantial assets of Parent, Sagent or any of their respective subsidiaries or affiliates. U.S. state attorneys general and private persons may also bring legal action under the U.S. federal antitrust laws seeking similar relief or seeking conditions to the completion of the Offer. While we believe that the consummation of the Offer will not violate U.S. federal antitrust laws, there can be no assurance that the Transactions will not be challenged on antitrust grounds or the outcome of any challenge on antitrust grounds. If any such action is commenced by the FTC, the Antitrust Division, or any state or other governmental body, Purchaser may not be obligated to consummate the Offer and the Merger.”

On August 9, 2016, Parent issued a press release announcing the expiration of the waiting period, a copy of which is filed as Exhibit (a)(5)(vii) and is incorporated herein by reference.

Item 11 of the Schedule TO and the disclosure under Section 16 “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase are hereby amended and supplemented by deleting and replacing the second paragraph appearing under the heading “Antitrust Compliance” to read as follows:

“Pursuant to the requirements of the HSR Act, we filed a Notification and Report Form with respect to the Offer with the Antitrust Division and the FTC on Friday, July 22, 2016 for review in connection with the Offer. The initial waiting period under the HSR Act commenced on Friday, July 22, 2016 and expired, effective August 8, 2016 at 11:59 p.m. (Eastern Time). Accordingly, the condition to the Offer requiring that any waiting period (and any extension thereof) applicable to the Transactions under the HSR Act shall have expired or been terminated has been satisfied. The Offer continues to be subject to the remaining conditions set forth in Section 15—“Conditions to the Offer” of the Offer to Purchase.

Even though the requisite waiting period under the HSR Act has expired, at any time if the Antitrust Division or the FTC believes before or after Purchaser’s acceptance for payment of Shares pursuant to the Offer that the Offer would violate the U.S. federal antitrust laws by substantially lessening competition in any line of commerce affecting U.S. consumers, the Antitrust Division and the FTC have the authority to challenge the Transactions by seeking a federal court order enjoining the Transactions, or if the Shares have already been acquired, requiring disposition of such Shares or the divestiture of substantial assets of Parent or Sagent or any of their respective subsidiaries or affiliates. U.S. state attorneys general and private persons may also bring legal action under the U.S. federal antitrust laws seeking similar relief or seeking conditions to the completion of the Offer.”

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Item 12. Exhibits.

Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:

 

Exhibit No.		Description
(a)(5)(vii)		Press Release issued by Parent, dated August 9, 2016

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SIGNATURES

After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Date: August 9, 2016

 

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Item 12. Exhibits.

 

Exhibit No.		Description
(a)(1)(i)		Offer to Purchase, dated as of August 1, 2016*
(a)(1)(ii)		Form of Letter of Transmittal (including Internal Revenue Service Form W-9)*
(a)(1)(iii)		Form of Notice of Guaranteed Delivery*
(a)(1)(iv)		Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*
(a)(1)(v)		Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*
(a)(1)(vi)		Summary Advertisement, as published in The New York Times on August 1, 2016*
(a)(5)(i)		Joint Press Release issued by Parent and Sagent, dated July 11, 2016 (incorporated by reference to the Schedule TO-C filed by Parent on July 11, 2016)
(a)(5)(ii)		Regulatory Press Release issued by Parent, dated July 11, 2016 (incorporated by reference to the Schedule TO-C filed by Parent on July 11, 2016)
(a)(5)(iii)		Letter sent by CEO of Parent to employees of Sagent issued by Parent, dated July 12, 2016, (incorporated by reference to the Schedule TO-C filed by Parent on July 12, 2016)
(a)(5)(iv)		IR Presentation issued by Parent, dated July 11, 2016, (incorporated by reference to the Schedule TO-C filed by Parent on July 11, 2016)
(a)(5)(v)		Press Release announcing commencement of the Offer issued by Parent, dated August 1, 2016*
(a)(5)(vi)		Regulatory Press Release issued by Parent on the Tokyo Stock Exchange (English Translation), dated August 2, 2016*
(a)(5)(vii)		Press Release issued by Parent, dated August 9, 2016
(b)(1)		Commitment Letter, dated as of June 23, 2016, among Parent and SMBC*
(c)		Not applicable
(d)(1)		Agreement and Plan of Merger, dated as of July 10, 2016, among Sagent, Parent and Purchaser (incorporated by reference to the Current Report on Form 8-K filed by Parent on July 11, 2016)
(d)(2)		Form of Tender and Support Agreement, dated as of July 10, 2016, among Parent, Purchaser and certain stockholders of Sagent*
(d)(3)		Confidentiality Agreement, dated April 30, 2016, by and between Parent and Sagent*
(e)		Not applicable
(f)		Not applicable
(g)		Not applicable
(h)		Not applicable

 

*	Previously filed.

Exhibit (a)(5)(vii)

 

August 9, 2016

Nichi-Iko Pharmaceutical Co., Ltd. Announces Expiration of HSR Waiting Period for Proposed

Acquisition of Sagent Pharmaceuticals, Inc.

Tokyo, Japan, August 9, 2016—Nichi-Iko Pharmaceutical Co., Ltd. (TSE: 4541) (“Nichi-Iko” or “Parent”) and Shepard Vision, Inc. (“Purchaser”) announced that the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR”), with respect to its proposed acquisition of Sagent Pharmaceuticals, Inc. (“Sagent”; Nasdaq: SGNT) expired effective August 8, 2016, at 11:59 p.m. (Eastern Daylight Time).

As previously announced on July 11, 2016, Nichi-Iko, Purchaser and Sagent entered into a definitive merger agreement pursuant to which Purchaser has commenced a tender offer (the “Offer”) for all of the outstanding shares of Sagent common stock, $0.01 par value per share (the “Shares”), at $21.75 per share, net to the holder in cash, without interest, subject to any applicable withholding taxes, representing total consideration of approximately $735 million. The expiration of the HSR waiting period satisfies one of the conditions required to consummate the Offer. The closing of the Offer remains subject to other customary conditions.

The Offer and withdrawal rights will expire at one minute following 11:59 p.m., New York City time, on August 26, 2016, unless the Offer is extended in accordance with the terms of the Offer to Purchase, dated August 1, 2016.

Cautionary Statement Regarding Forward-Looking Statements:

To the extent that statements contained in this communication are not descriptions of historical facts, including those relating to the potential effects and benefits of the transaction on both Parent and Sagent, they are forward-looking statements, reflecting the current beliefs, certain assumptions and current expectations of managements and should be evaluated as such. These statements may be identified by words such as “anticipate,” “expect,” “suggest,” “plan,” “believe,” “intend,” “estimate,” “target,” “project,” “could,” “should,” “may,” “will,” “would,” “continue,” “forecast,” and other similar expressions. Forward-looking statements in this communication involve substantial risks and uncertainties that could cause actual results to differ significantly from those expressed or implied by the forward-looking statements, including but not limited to, the satisfaction of the conditions to the consummation of the proposed transaction, the timing of the completion of the proposed transaction and the potential impact of the consummation of the proposed transaction on Parent’s and Sagent’s important relationships, including with employees, suppliers and customers. For a further description of the risks and uncertainties that could cause actual results to differ from those expressed in these forward-looking statements, as well as risks relating to Sagent’s business in general, see Sagent’s Form 10-K for the year ended December 31, 2015, subsequent reports on Form 10-Q and 8-K, and other filings by Sagent with the U.S. Securities and Exchange Commission (“SEC”). Further, forward-looking statements speak only as of the date they are made, and neither Parent nor Sagent undertakes any obligation to update or revise any forward-looking statements to reflect changed assumptions, the occurrence of unanticipated events or changes to future operating results over time, except as required by law. All written and oral forward-looking statements attributable to Parent or Sagent or persons acting on their behalf are qualified in their entirety by these cautionary statements.

Important Information:

This communication is for informational purposes only, and it does not constitute an offer to purchase or a solicitation of an offer to sell Shares or any other securities. The Offer is being made pursuant to a Tender Offer Statement on Schedule TO filed by Purchaser and Parent with the SEC on August 1, 2016. Sagent filed a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC

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with respect to the Offer on August 1, 2016. SAGENT STOCKHOLDERS ARE ADVISED TO READ THE SCHEDULE TO (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND OTHER OFFER DOCUMENTS) AND THE SCHEDULE 14D-9, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE, BEFORE MAKING ANY DECISION WITH RESPECT TO THE TENDER OFFER BECAUSE THESE DOCUMENTS CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO. Both the Tender Offer Statement on Schedule TO (which includes the Offer to Purchaser, the related letter of transmittal and other tender offer documents) and the Solicitation/Recommendation Statement on Schedule 14D-9 were mailed to holders of Shares at no expense to them. Investors and Sagent stockholders may also obtain free copies of the Schedule TO and Schedule 14D-9, as each may be amended or supplemented from time to time, and other documents filed by the parties at the SEC’s web site at www.sec.gov, by contacting Okapi Partners LLC, the information agent for the Offer at the address and telephone number set forth below or by contacting Michael Ward, Sagent’s Chief Legal Officer and Corporate Secretary either by telephone at (847) 908-1600 or by e-mail at [email protected].

The Information Agent for the Offer is:

 

Okapi Partners LLC

1212 Avenue of the Americas, 24th Floor

New York, NY 10036

Banks and Brokers, Call: (212) 297-0720

All Others, Call Toll-Free: (877) 566-1922

Email: [email protected]

 

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