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. 6)
DEPOMED, INC.
(Name of Subject Company (Issuer))
Diosail Merger Corporation
(Name of Offeror)
A Wholly-Owned Subsidiary of
Horizon Pharma Public Limited Company
(Name of Offerors)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, no par value
(Title of Class of Securities)
249908104
(CUSIP Number of Class of Securities)
Timothy P. Walbert
Horizon Pharma plc
Connaught House, 1st Floor
1 Burlington Road, Dublin 4, Ireland
011 353 1 772 2100
(Name, address and telephone number of person authorized to receive notices and communications on behalf of the filing person)
Copies to:
Barbara Borden Kay Chandler Sean Clayton Cooley LLP 4401 Eastgate Mall San Diego, California 92121 Telephone: (858) 550-6000 |
Rodd M. Schreiber Richard J. Grossman Skadden, Arps, Slate, Meagher & Flom LLP 155 N. Wacker Drive Chicago, Illinois 60606 Telephone: (312) 407-0700 |
CALCULATION OF FILING FEE
Transaction Valuation(1) | Amount of Filing Fee(2) | |
$2,273,171,432.49 | $263,533.95 | |
(1) | Pursuant to Rule 0-11 under the Securities Exchange Act of 1934, as amended, which we refer to as the Exchange Act, and solely for the purpose of calculating the filing fee, the market value of the securities to be received was calculated as the product of (1) 86,007,243 shares of common stock, no par value, of Depomed, Inc., which we refer to as Depomed, and which common stock we refer to as Depomed common stock (being the sum of (i) 60,311,961 shares of Depomed common stock outstanding as of July 30, 2015 (as reported in Depomeds Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2015), (ii) 5,977,141 shares of Depomed common stock subject to outstanding awards under Depomeds 2004 Equity Incentive Plan as of March 20, 2015 (as reported in Depomeds Proxy Statement on Schedule 14A filed on April 6, 2015), (iii) 2,711,122 shares of Depomed common stock subject to outstanding awards under Depomeds 2014 Omnibus Incentive Plan as of March 20, 2015 (as reported in Depomeds Proxy Statement on Schedule 14A filed on April 6, 2015), (iv) 89,758 shares of Depomed common stock subject to outstanding awards granted by Depomed after March 20, 2015 (as reported in Statements of Changes in Beneficial Ownership filed on Form 4), and (v) 19,167,261 shares of Depomed common stock issuable upon the conversion of Depomeds outstanding convertible notes assuming that all such notes are converted after the completion of the offer on the expiration date but prior to the consummation of the second-step merger, and that Depomed elects to settle such notes using only shares of Depomed common stock (and for purposes of such settlement such shares are valued at $33.00 per share), less 2,250,000 shares of Depomed common stock in which Horizon Pharma, Inc. has an ownership interest, which will not be tendered in the offer and will be cancelled in any merger with Depomed) and (2) the average of the high and low sale prices of Depomed common stock as reported on the NASDAQ Global Select Market on September 4, 2015 ($26.43). |
(2) | Computed in accordance with Rule 0-11 under the Exchange Act to be $263,533.95, which is equal to (i) 0.0001162 multiplied by the underlying value of the transaction of $2,233,908,319.56 as of the initial filing of the registration statement on Form S-4 to which this transaction relates on September 8, 2015, plus (ii) 0.0001007 multiplied by the additional underlying value of the transaction of $39,263,112.93 as of the filing of amendment no. 2 to the registration statement on Form S-4 to which this transaction relates on October 15, 2015. |
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: $263,533.95 |
Filing Party: Horizon Pharma Public Limited Company | |
Form of Registration No. Form S-4/A |
Date Filed: October 15, 2015 |
¨ | 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. 6 to the Tender Offer Statement on Schedule TO amends and supplements the Tender Offer Statement on Schedule TO originally filed with the Securities Exchange Commission on September 8, 2015 (as amended and together with any subsequent amendments and supplements thereto, the Schedule TO) by Horizon Pharma Public Limited Company, a public limited company formed under the laws of Ireland (Horizon), and Diosail Merger Corporation, a California corporation and a wholly owned subsidiary of Horizon (Purchaser). The Schedule TO relates to the offer by Horizon, through Purchaser, to exchange each issued and outstanding share of common stock, no par value (including the associated rights to purchase preferred stock, the Depomed common stock), of Depomed, Inc., a California corporation (Depomed), that is validly tendered and not properly withdrawn prior to the expiration date, for 0.95 ordinary shares of Horizon, nominal value $0.0001 per share (including any cash paid in lieu of a fractional Horizon ordinary share), subject to the procedures described in (1) the Offer to Exchange, dated October 15, 2015 (the Offer to Exchange), and (2) the related Letter of Transmittal (the offer reflected by such terms and conditions, as they may be amended, supplemented or extended from time to time, constitutes the Offer).
All capitalized terms used in this Amendment No. 6 and not otherwise defined have the respective meanings ascribed to them in the Schedule TO.
Items 1 through 11.
Items 1 through 11 of the Schedule TO are hereby amended and supplemented as follows:
Adding the following paragraph in Items 1 and 4 of the Schedule TO:
On October 26, 2015, Horizon extended the expiration of the Offer until 5:00 p.m., Eastern time, on November 20, 2015, unless further extended. The Offer was previously scheduled to expire at 5:00 p.m., Eastern time, on November 6, 2015. The press release announcing the extension of the Offer is attached hereto as Exhibit (a)(5)(F).
Amending and replacing all references regarding the scheduled expiration of the Offer being 5:00 p.m., Eastern time, on November 6, 2015 set forth in the Offer to Exchange (Exhibit (a)(4)(A)), Letter of Transmittal (Exhibit (a)(1)(A)), Notice of Guaranteed Delivery (Exhibit (a)(1)(B)), Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(C)) and Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(D)) with 5:00 p.m., Eastern time, on November 20, 2015.
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented as follows:
EXHIBIT NO. |
DOCUMENT | |
(a)(5)(F) | Press Release, dated October 26, 2015. |
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.
Diosail Merger Corporation | ||
By: | /s/ Timothy P. Walbert | |
Name: | Timothy P. Walbert | |
Title: | Chairman, President and Chief Executive Officer |
Horizon Pharma plc | ||
By: | /s/ Timothy P. Walbert | |
Name: | Timothy P. Walbert | |
Title: | Chairman, President and Chief Executive Officer |
Date: October 26, 2015
EXHIBIT INDEX
EXHIBIT NO. |
DOCUMENT | |
(a)(1)(A) | Form of Letter of Transmittal.* | |
(a)(1)(B) | Form of Notice of Guaranteed Delivery.* | |
(a)(1)(C) | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
(a)(1)(D) | Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
(a)(4)(A) | Offer to Exchange, dated October 15, 2015.** | |
(a)(5)(A) | Press Release, dated September 8, 2015.*** | |
(a)(5)(B) | Letter to Depomed, Inc. Shareholders, dated September 10, 2015.*** | |
(a)(5)(C) | Investor presentation first used by Horizon Pharma Public Limited Company on September 17, 2015, as amended.*** | |
(a)(5)(D) | Amended slide in investor presentation first used by Horizon Pharma Public Limited Company on October 13, 2015.*** | |
(a)(5)(E) | Press Release, dated October 15, 2015.*** | |
(a)(5)(F) | Press Release, dated October 26, 2015. | |
(b) | Not applicable. | |
(d) | Not applicable. | |
(g) | Not applicable. | |
(h) | Opinion of Cooley LLP regarding certain tax matters.** |
* | Incorporated by reference to the Horizon Registration Statement on Form S-4 filed on September 8, 2015. |
** | Incorporated by reference to Amendment No. 2 to the Horizon Registration Statement on Form S-4 filed on October 15, 2015. |
*** | Previously filed. |
Exhibit (a)(5)(F)
Horizon Pharma plc Extends Offer to Acquire Depomed, Inc.
DUBLIN, IRELAND October 26, 2015 Horizon Pharma plc (NASDAQ: HZNP) (Horizon Pharma), a biopharmaceutical company focused on improving patients lives by identifying, developing, acquiring and commercializing differentiated and accessible medicines that address unmet medical needs today announced that it has extended the expiration of its exchange offer to acquire all of the outstanding shares of common stock of Depomed, Inc. (Depomed) to 5 p.m., Eastern time, on November 20, 2015. An extraordinary general meeting of Horizon Pharmas shareholders is scheduled for November 13, 2015, the principal purpose of which is to approve the issuance of Horizon ordinary shares in connection with Horizon Pharmas proposed acquisition of Depomed. Horizon shareholder approval is one of the conditions required to consummate the exchange offer and the exchange offer is being extended until after the Horizon special meeting.
The depositary of the exchange offer has advised that, as of 9:00 a.m., Eastern time, on October 26, 2015, a total of approximately 7,873 shares of Depomed common stock were validly tendered and not properly withdrawn in the exchange offer. The exchange offer was previously scheduled to expire at 5 p.m., Eastern time on November 6, 2015. All other terms and conditions of the exchange offer remain unchanged.
About Horizon Pharma plc
Horizon Pharma plc is a biopharmaceutical company focused on improving patients lives by identifying, developing, acquiring and commercializing differentiated and accessible medicines that address unmet medical needs. The Company markets seven medicines through its orphan, primary care and specialty business units. Horizon Pharmas global headquarters are in Dublin, Ireland. For more information, please visit www.horizonpharma.com. Follow @HZNPplc on Twitter or view careers on our LinkedIn page.
Forward-Looking Statements
This press release contains forward-looking statements, including, but not limited to, statements related to Horizon Pharmas offer to exchange its ordinary shares for all issued and outstanding shares of Depomeds common stock and anticipated timing of related events, and other statements that are not historical facts.
These forward-looking statements are based on Horizon Pharmas current expectations and inherently involve significant risks and uncertainties. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of these risks and uncertainties, which include, without limitation, risks that the conditions to the exchange offer will not be satisfied, Horizon Pharma will ultimately not pursue a transaction with Depomed or Depomed will reject engaging in any transaction with Horizon Pharma; if the conditions of the exchange offer are satisfied and/or a transaction is negotiated between Horizon Pharma and Depomed, risks related to Horizon Pharmas ability to complete the acquisition on the proposed terms; the possibility that competing offers will be made; risks associated with business combination transactions, such as the risk that the businesses will not be integrated successfully, that such integration may be more difficult, time-consuming or costly than expected or that the expected benefits of the acquisition will not be realized; risks related to future opportunities and plans for the combined company, including uncertainty of the expected financial performance and results of the combined company following completion of the proposed acquisition;
Connaught House, 1st Floor, 1 Burlington Road, Dublin 4, D04 C5Y6, Ireland
disruption from the proposed acquisition, making it more difficult to conduct business as usual or maintain relationships with customers, employees or suppliers; and the possibility that if the combined company does not achieve the perceived benefits of the proposed acquisition as rapidly or to the extent anticipated by financial analysts or investors, the market price of Horizon Pharmas ordinary shares could decline, as well as other risks related to the Horizon Pharma and Depomed businesses, including the ability to grow sales and revenues from existing products; competition, including potential generic competition; the ability to protect intellectual property and defend patents; regulatory obligations and oversight; and those risks detailed from time-to-time under the caption Risk Factors and elsewhere in Horizon Pharmas and Depomeds respective filings and reports with the SEC. Horizon Pharma undertakes no duty or obligation to update any forward-looking statements contained in this press release as a result of new information, except as required by applicable law or regulation.
Additional Information
This press release does not constitute an offer to buy or solicitation of any offer to sell or vote securities and is for informational purposes only. It relates to the offer commenced by Horizon Pharma to exchange each issued and outstanding share of Depomed common stock for 0.95 Horizon Pharma ordinary shares. The offer will be made only through the Tender Offer Statement on Schedule TO or the Prospectus/Offer to Exchange included in the Registration Statement on Form S-4 (File No. 333-206798) (including the Letter of Transmittal and related documents and as amended from time to time, the Exchange Offer Documents) that Horizon Pharma has filed with the SEC. This press also relates to the solicitation of proxies for an extraordinary general meeting of shareholders of Horizon Pharma to be held on November 13, 2015 (the Meeting) and the definitive proxy statement for such meeting filed with the SEC on October 15, 2015 (the Proxy Statement). Subject to further developments, Horizon Pharma may file one or more amendments and supplements to the Proxy Statement and additional solicitation statements and/or proxy statements or other documents with the SEC in connection with the Meeting, and Horizon Pharma (and, if a negotiated transaction is agreed upon, Depomed) may file additional Exchange Offer Documents and/or registration statements and one or more prospectuses, proxy statements, or other documents with the SEC in connection with the offer or any other proposed transaction involving Horizon Pharma and Depomed. This press release is not a substitute for any solicitation statement, proxy statement or other document filed with the SEC in connection with the Meeting or any registration statement, prospectus, proxy statement, Exchange Offer Document or other documents Horizon Pharma and/or Depomed may file with the SEC in connection with the offer or any other proposed transaction involving Horizon Pharma and Depomed.
Investors and security holders may obtain free copies of the Exchange Offer Documents, the Proxy Statement and any other related documents (when they are available) filed with the SEC at the SECs web site at www.sec.gov or by directing a request to Horizon Pharmas Investor Relations department at Horizon Pharma, Inc., Attention: Investor Relations, 520 Lake Cook Road, Suite 520, Deerfield, IL 60015 or to Horizon Pharmas Investor Relations department at 224-383-3400 or by email to investor-relations@horizonpharma.com. Investors and security holders may obtain free copies of the documents filed with the SEC on Horizon Pharmas website at www.horizonpharma.com under the heading Investors and then under the heading SEC Filings.
Connaught House, 1st Floor, 1 Burlington Road, Dublin 4, D04 C5Y6, Ireland
Certain Information Regarding Participants
Horizon Pharma and its directors, executive officers and certain other employees may be deemed participants in the solicitations of proxies in connection with the Meeting and to vote in favor of the principal proposals described in the Proxy Statement. You can find information about Horizon Pharmas directors, executive officers and such certain other employees in Horizon Pharmas Annual Report on Form 10-K for the year ended December 31, 2014, which was filed with the SEC on February 27, 2015, Horizon Pharmas definitive proxy statement filed with the SEC on May 6, 2015, Horizon Pharmas Current Report on Form 8-K/A filed with the SEC on July 27, 2015, the Proxy Statement, and in such other solicitation statements, proxy statements or other documents that may be filed with the SEC in connection with the Meeting. These documents are available free of charge at the SECs web site at www.sec.gov and from Investor Relations at Horizon Pharma as described above. Additional information regarding the interests of such potential participants is included in the Proxy Statement and will be included in one or more registration statements, proxy statements or other documents filed with the SEC if and when they become available.
Contacts:
Investors:
John Thomas
Executive Vice President, Strategy and Investor Relations
investor-relations@horizonpharma.com
Tina Ventura
Vice President, Investor Relations
investor-relations@horizonpharma.com
Dan Burch
MacKenzie Partners, Inc.
212-929-5748
dburch@mackenziepartners.com
Bob Marese
MacKenzie Partners, Inc.
212-929-5405
bmarese@mackenziepartners.com
U.S. Media:
Geoff Curtis
Group Vice President, Corporate Communications
media@horizonpharma.com
Daniel Yunger
Kekst and Company
daniel-yunger@kekst.com
Ireland Media:
Connaught House, 1st Floor, 1 Burlington Road, Dublin 4, D04 C5Y6, Ireland
Ray Gordon
Gordon MRM
ray@gordonmrm.ie
Source: Horizon Pharma plc
Connaught House, 1st Floor, 1 Burlington Road, Dublin 4, D04 C5Y6, Ireland