UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE TO

 

TENDER OFFER STATEMENT

UNDER

SECTION 14(D)(1) OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No. 7)

 

 

ADOLOR CORPORATION

(Name of Subject Company (Issuer))

 

FRD ACQUISITION CORPORATION

CUBIST PHARMACEUTICALS, INC.

(Names of Filing Persons (Offerors))

 

Common Stock, par value $0.0001 per share

(Title of Class of Securities)

 

00724X102

(CUSIP Number of Common Stock)

 

 

Tamara L. Joseph

Senior Vice President, General Counsel and Secretary

Cubist Pharmaceuticals, Inc.

65 Hayden Avenue

Lexington, MA 02421

(781) 860-8660

(Name, address and telephone number of person authorized
to receive notices and communications on behalf of filing persons)

 

 

with copies to:

 

Paul M. Kinsella

Ropes & Gray LLP

800 Boylston Street

Boston, Massachusetts 02199

Telephone: (617) 951-7000

 

CALCULATION OF FILING FEE

 

Transaction Valuation*		Amount Of Filing Fee**
$457,392,710.95		$52,417.20

 

*              Estimated solely for purposes of calculating amount of filing fee in accordance with Rule 0-11 under the Securities Exchange Act of 1934. The transaction value was calculated adding (1) the product of (a) $8.75, which is the sum of (i) the closing cash payment of $4.25 per share and (ii) $4.50 per share, which is the maximum amount payable with respect to the contingent payment rights and (b) the number of shares of common stock, par value $0.0001 per share (the “Shares”), of Adolor Corporation (“Adolor”) outstanding on a fully-diluted basis as of November 4, 2011, as represented by Adolor in the Agreement and Plan of Merger, dated as of October 24, 2011, among Cubist Pharmaceuticals, Inc., FRD Acquisition Corporation and Adolor, consisting of (x) 46,603,391 Shares issued and outstanding, (y) 1,630,542 shares issuable upon the vesting of deferred stock units, and (2) the product of (a) the difference between (x) $8.75 and (y) an exercise price of $1.19 (the lowest exercise price of any outstanding option) and (b) 4,675,370 shares issuable pursuant to outstanding options with an exercise price less than $8.75.

 

**           The amount of the filing fee calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Advisory #3 for fiscal year 2012, issued September 29, 2011 by the Securities and Exchange Commission, equals $114.60 per million of the value of the transaction.

 

x           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:		$52,417.20
Form or Registration No.:		Schedule TO
Filing Party:		Cubist Pharmaceuticals, Inc.
Date Filed:		November 7, 2011

 

o            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.

o            issuer tender offer subject to Rule 13e-4.

o            going-private transaction subject to Rule 13e-3.

x           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:  o

 

 

 

This Amendment No. 7 to the Tender Offer Statement on Schedule TO (this “Amendment”), filed with the Securities and Exchange Commission on December 7, 2011, amends and supplements the Tender Offer Statement on Schedule TO originally filed on November 7, 2011, as amended (the “Schedule TO”), and relates to a tender offer by FRD Acquisition Corporation, a Delaware corporation (the “Offeror”) and a wholly-owned subsidiary of Cubist Pharmaceuticals, Inc., a Delaware corporation (“Parent”), to purchase all of the outstanding shares of Common Stock, par value $0.0001 per share (the “Shares”), of Adolor Corporation, a Delaware corporation (the “Company”), at a price of $4.25, in cash (the “Closing Amount”), for each outstanding Share, plus one non-transferrable contingent payment right (“CPR”) per Share, which represents the contractual right to receive up to $4.50, in cash, if specified regulatory and/or commercial milestones are achieved in agreed upon time periods, less any applicable withholding taxes and without interest, and subject to the conditions set forth in the Offer to Purchase dated November 7, 2011 (the “Offer to Purchase”) and in the related Letter of Transmittal (the “Letter of Transmittal” which, together with the Offer to Purchase, as each may be amended and supplemented from time to time, constitute the “Offer”).  This Amendment is being filed on behalf of the Offeror and Parent.  The Schedule TO (including the Offer to Purchase) contains important information about the Offer, all of which should be read carefully by Adolor stockholders before any decision is made with respect to the Offer.

 

Documentation relating to the Offer has been mailed to Adolor stockholders and may be obtained at no charge at the website maintained by the SEC at www.sec.gov and may also be obtained at no charge by directing a request by mail to MacKenzie Partners, Inc., 105 Madison Avenue, New York, New York 10016, or by calling toll-free at (800) 322-2885.

 

The information set forth in the Offer to Purchase and the Letter of Transmittal, copies of which are filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B) thereto, respectively, is incorporated by reference in answers to Items 1 through 9 and Item 11 of the Schedule TO, and is supplemented by the information specifically provided herein.

 

Items 1 through 9 and Item 11.

 

Items 1 through 9 and Item 11 of the Schedule TO are hereby amended and supplemented as follows:

 

“The initial offering period of the Offer expired at 12:00 midnight, New York City time, at the end of December 6, 2011.  The Depositary for the Offer has advised Parent and the Offeror that as of 12:00 midnight, New York City time, at the end of December 6, 2011, approximately 36,090,910 Shares had been validly tendered and not withdrawn pursuant to the Offer, representing a total of approximately 75% of the outstanding Shares as of December 6, 2011.  Additionally, the Depositary has advised Parent and the Offeror that an additional 1,163,147 Shares had been tendered subject to guaranteed delivery procedures.  The Offeror has accepted for payment all Shares validly tendered and not withdrawn pursuant to the Offer (but not including any Shares tendered subject to guaranteed delivery procedures).

 

The Offeror has commenced a subsequent offering period of the Offer for all remaining untendered Shares pursuant to Rule 14d-11 of the Securities Exchange Act of 1934, as amended. The subsequent offering period will expire at 12:00 midnight, New York City time, at the end of December 9, 2011, unless extended. Any Shares validly tendered during the subsequent offering period will be accepted immediately for payment, and tendering stockholders will thereafter promptly be paid the same offer price of $4.25, in cash, for each outstanding Share, plus one non-transferrable contingent payment right per Share, which represents the contractual right to receive up to $4.50, in cash, if specified regulatory and/or commercial milestones are achieved in agreed upon time periods, less any applicable withholding taxes and without interest, and subject to the conditions set forth in the Offer. The procedures for accepting the tender offer and tendering shares during the subsequent offering period are the same as those described for the tender offer in the Offer to Purchase, except that shares tendered during the subsequent offering period may not be withdrawn. In addition, no Shares validly tendered during the initial offering period may be withdrawn during the subsequent offering period.

 

The full text of the press release issued by Cubist and Adolor on December 7, 2011 announcing the results of the initial offering period of the Offer and the commencement of the subsequent offering period is attached hereto as Exhibit (a)(5)(R) and is incorporated herein by reference.”

 

ITEM 12.           EXHIBITS

 

The Schedule TO is hereby amended and supplemented by adding the following exhibit to Item 12.

 

(a)(5)(R)               Joint Press Release issued by Cubist Pharmaceuticals, Inc. and Adolor Corporation, dated December 7, 2011.

 

2

 

 

SIGNATURES

 

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.

 

	FRD ACQUISITION CORPORATION
Dated: December 7, 2011	By:	/s/ Tamara L. Joseph
	Name:	Tamara L. Joseph
	Title:	Secretary
	CUBIST PHARMACEUTICALS, INC.
Dated: December 7, 2011	By:	/s/ Tamara L. Joseph
	Name:	Tamara L. Joseph
	Title:	Senior Vice President, General Counsel and Secretary

 

3

 

EXHIBIT INDEX

 

(a)(1)(A)*		Offer to Purchase, dated November 7, 2011.
(a)(1)(B)*		Form of Letter of Transmittal.
(a)(1)(C)*		Form of Notice of Guaranteed Delivery.
(a)(1)(D)*		Form of Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees.
(a)(1)(E)*		Form of Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and Other Nominees.
(a)(5)(A)*		Joint Press Release issued by Cubist Pharmaceuticals, Inc. and Adolor Corporation, dated October 24, 2011 (incorporated in this Amendment by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Cubist Pharmaceuticals, Inc. on October 24, 2011).
(a)(5)(B)*		Investor Presentation Slideshow, dated October 24, 2011 (incorporated in this Amendment by reference to Exhibit 99.1 of the Schedule TO-C filed by Cubist Pharmaceuticals, Inc. on October 24, 2011).
(a)(5)(C)*		Transcript of October 24, 2011, Investor Presentation (incorporated in this Schedule TO by reference to Exhibit 99.1 of the Schedule TO-C filed by Cubist Pharmaceuticals, Inc. on October 25, 2011).
(a)(5)(D)*		Summary Advertisement published in The Wall Street Journal on November 7, 2011.
(a)(5)(E)*		Press Release issued by Cubist Pharmaceuticals, Inc., dated November 7, 2011.
(a)(5)(F)*		Complaint filed on October 25, 2011 in the Court of Common Pleas of Chester County, Pennsylvania.
(a)(5)(G)*		Complaint filed on October 28, 2011 in the Court of Chancery of the State of Delaware.
(a)(5)(H)*		Complaint filed on October 31, 2001 in the Court of Common Pleas of Chester County, Pennsylvania.
(a)(5)(I)*		Complaint filed on November 1, 2011 in the Court of Chancery of the State of Delaware.
(a)(5)(J)*		Complaint filed on November 4, 2011 in the Court of Chancery of the State of Delaware.
(a)(5)(K)*		Complaint filed on November 10, 2011 in the Court of Chancery of the State of Delaware.
(a)(5)(L)*		Complaint filed on November 10, 2011 in the United States District Court for the Eastern District of Pennsylvania.
(a)(5)(M)*		Joint Press Release issued by Cubist Pharmaceuticals, Inc. and Adolor Corporation, dated November 15, 2011.
(a)(5)(N)*		Complaint filed on November 3, 2011 in the Court of Common Pleas of Chester County, Pennsylvania, Civil Division.
(a)(5)(O)*		Amended Complaint filed on November 11, 2011 in the Court of Chancery of the State of Delaware.
(a)(5)(P)*		Amended Complaint filed on November 9, 2011 in the Court of Common Pleas of Chester County, Pennsylvania, Civil Division.
(a)(5)(Q)*		Memorandum of Understanding between Adolor Corporation, Cubist Pharmaceuticals, Inc., FRD Acquisition Corporation and the plaintiffs, dated as of November 28, 2011.
(a)(5)(R)		Joint Press Release issued by Cubist Pharmaceuticals, Inc. and Adolor Corporation, dated December 7, 2011.
(d)(1)*		Agreement and Plan of Merger, dated as of October 24, 2011, by and between Cubist Pharmaceuticals, Inc., FRD Acquisition Corporation and Adolor Corporation.
(d)(2)*		Tender and Voting Agreement, dated as of October 24, 2011, by and between Cubist Pharmaceuticals, Inc., FRD Acquisition Corporation and the executive officers and directors of Adolor Corporation.

 

4

 

(d)(3)*		Mutual Confidentiality and Non-Use Agreement, dated as of July 26, 2011, by and between Cubist Pharmaceuticals, Inc. and Adolor Corporation.
(d)(4)*		Form of Contingent Payment Rights Agreement, by and between Cubist Pharmaceuticals, Inc. and Broadridge Corporate Issuer Solutions, Inc. (incorporated in this Amendment by reference to Annex IV of Exhibit (d)(1) of the Schedule TO filed by Cubist Pharmaceuticals, Inc. on November 7, 2011).

 

*              Previously filed.

 

5

Exhibit (a)(5)(R)

 

 

CUBIST PHARMACEUTICALS ANNOUNCES RESULTS OF INITIAL TENDER OFFER FOR
OUTSTANDING SHARES OF ADOLOR CORPORATION AND COMMENCEMENT OF
SUBSEQUENT OFFERING PERIOD

 

Lexington, Mass., and Exton, Pa., December 7, 2011 — Cubist Pharmaceuticals, Inc. (NASDAQ: CBST) and Adolor Corporation (NASDAQ: ADLR) today announced the results of Cubist’s initial tender offer to purchase all of the outstanding shares of common stock of Adolor for $4.25 per share in cash, plus one nontransferable Contingent Payment Right (CPR) entitling the holder to receive additional cash payments of up to $4.50 for each share tendered if certain regulatory approvals and/or commercialization milestones for ADL5945 are achieved. The tender offer is being effected through Cubist’s subsidiary, FRD Acquisition Corporation.  The initial tender offer period expired at 12:00 midnight ET, at the end of December 6, 2011.

 

The depositary for the tender offer has advised Cubist that, as of the expiration of the initial offering period, a total of approximately 36,090,910 shares of Adolor common stock were validly tendered and not withdrawn (not including approximately 1,163,147 shares subject to guaranteed delivery procedures), representing approximately 75% of the outstanding Adolor common shares. All shares that were validly tendered and not withdrawn during the initial offering period have been accepted for payment.

 

Cubist also announced the commencement of a subsequent offering period that is scheduled to expire at 12:00 midnight, New York City time, at the end of December 9, 2011, unless extended. Any shares validly tendered during this subsequent offering period will be accepted immediately for payment, and tendering stockholders will thereafter promptly be paid the same offer price of $4.25 per share plus one CPR. The procedures for tendering shares during the subsequent offering period are the same as those described for the tender offer in the offer to purchase, except that shares tendered during the subsequent offering period may not be withdrawn. Following completion of the tender offer, Cubist and FRD intend to complete the acquisition of Adolor through a merger under Delaware law. Adolor shareholders who do not tender their shares of Adolor common stock in the tender offer will not receive payment for their shares until the completion of the merger.

 

Notice to investors

 

This press release is for informational purposes only and is not an offer to purchase nor a solicitation of an offer to sell securities. The solicitation and the offer to purchase shares of Adolor common stock are being made only pursuant to the Offer to Purchase, Letter of Transmittal and related materials that Cubist and FRD Acquisition Corporation have filed with the SEC on a Tender Offer Statement on Schedule TO on November 7, 2011. Adolor also has filed a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the offer on November 7, 2011. Adolor stockholders and other investors should read these materials carefully because they contain important information, including the terms and conditions of the offer. Adolor stockholders and other investors may obtain free copies of the Tender Offer Statement, the tender offer Solicitation/Recommendation Statement and other documents filed with the SEC through the web site maintained by the SEC at www.sec.gov. In addition,

 

65 Hayden Avenue, Lexington, MA 02421     P 781.860.8660     F 781.861.0566     www.cubist.com

 

 

investors and security holders will be able to obtain free copies of these documents from Cubist or Adolor by contacting: MacKenzie Partners, Inc. on behalf Cubist toll free at (800) 322-2885 or collect at (212) 929-5500 or tenderoffer@mackenziepartners.com, or Stephen W. Webster of Adolor at (484) 595-1500. Questions and requests for assistance or for additional copies of these documents may be directed to MacKenzie Partners, Inc., the information agent for the offer, at (212) 929-5500 for banks and brokers or toll-free at (800) 322-2885 for stockholders and all others.

 

About Cubist

 

Cubist Pharmaceuticals, Inc. is a biopharmaceutical company focused on the research, development, and commercialization of pharmaceutical products that address significant unmet medical needs in the acute care environment. Cubist is headquartered in Lexington, Mass. Additional information can be found at Cubist’s web site at www.cubist.com.

 

About Adolor

 

Adolor Corporation is a biopharmaceutical company specializing in the discovery, development and commercialization of novel prescription pain and pain management products.

 

Adolor’s first approved product in the United States is ENTEREG® (alvimopan), which is indicated to accelerate the time to upper and lower gastrointestinal recovery following partial large or small bowel resection surgery with primary anastomosis. ENTEREG is available only for short-term (15 doses) use in hospitalized patients. Only hospitals that have registered in and met all of the requirements for the ENTEREG Access Support and Education (E.A.S.E.®) program may use ENTEREG. For more information on ENTEREG, including its full prescribing information, the Boxed Warning regarding short-term hospital use and the E.A.S.E. Program, visit www.ENTEREG.com.

 

The Company’s lead development program compound is ADL5945, a novel mu opioid receptor antagonist being developed for chronic OIC that demonstrated positive results in Phase 2 trials. The Company also has several earlier-stage compounds under development for the management of pain and CNS disorders.

 

For more information, visit www.adolor.com.

 

Cautionary Note Regarding Forward-Looking Statements

 

Statements in this press release regarding the expected timetable for completing the transaction and any other statements about future expectations, beliefs, goals, plans, or prospects constitute forward-looking statements. Any statements that are not statements of historical fact (including statements containing the words “believes,” “plans,” “anticipates,” “expects,” “estimates,” and similar expressions) should also be considered to be forward-looking statements. There are a number of important factors that could cause actual results or events to differ materially from those indicated by such forward-looking statements, including the possibility that certain closing conditions to the transaction will not be met and the ability to consummate the transaction. Except as otherwise required by law, Cubist and Adolor disclaim any intention or obligation to update any forward-looking statements as a result of developments occurring after the date of this press release.

 

Cubist Contacts:

 

INVESTORS:

Eileen C. McIntyre

Senior Director, Investor Relations

(781) 860-8533

eileen.mcintyre@cubist.com

 

 

Mark Harnett and Paul Schulman

MacKenzie Partners, Inc.

(212) 929-5500

Email: tenderoffer@mackenziepartners.com

 

MEDIA:

Francis McLoughlin

Director, Corporate Communications

(781) 860-8777

 

Or

 

Sard Verbinnen & Co

Andrew Cole/Chris Kittredge/Briana Kelly

(212) 687-8080

cubist-sardverb@sardverb.com

 

Adolor Contacts:

 

INVESTORS/MEDIA:

Stephen W. Webster

SVP, Finance and CFO

(484) 595-1500

swebster@adolor.com