UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 5)
SOLICITATION/RECOMMENDATION STATEMENT UNDER
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
Inspire Pharmaceuticals, Inc.
(Name of Subject Company)
Inspire Pharmaceuticals, Inc.
(Name of Persons Filing Statement)
Common Stock, par value $0.001 per share, and the
Associated Preferred Stock Purchase Rights
(Title of Class of Securities)
457733103
(CUSIP Number of Class of Securities)
Joseph M. Spagnardi
Senior Vice President, General Counsel and Secretary
Inspire Pharmaceuticals, Inc.
8081 Arco Corporate Drive, Suite 400
Raleigh, NC 27617
(919) 941-9777
(Name, address and telephone numbers of person authorized to receive
notices and communications on behalf of the persons filing statement)
Copies to:
Russell L. Leaf
Adam M. Turteltaub
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
¨ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
This Amendment No. 5 (this Amendment No. 5) amends and supplements Item 8 in the Solicitation/Recommendation Statement on Schedule 14D-9 initially filed with the Securities and Exchange Commission on April 15, 2011, by Inspire Pharmaceuticals, Inc. (the Company), as amended or supplemented from time to time (the Schedule 14D-9). The Schedule 14D-9 relates to the cash tender offer by Monarch Transaction Corp. (Merger Sub), a wholly owned subsidiary of Merck & Co., Inc. (Parent), to purchase all of the Companys outstanding shares of common stock at a price of $5.00 per share, payable net to the seller in cash without interest thereon and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in Merger Subs Offer to Purchase dated April 15, 2011, and in the related Letter of Transmittal, as each 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 herein by reference as relevant to items in this Amendment No. 5.
Item 8. Additional Information to be Furnished.
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding the following new paragraphs to the end of Item 8:
(k) Expiration of the Offer
Parent announced on Friday, May 13, 2011 that the Offer had expired and that Merger Sub has accepted for payment all of the Shares validly tendered and not properly withdrawn pursuant to the Offer prior to the expiration of the Offer. According to Computershare Trust Company, N.A., the depositary for the Offer, as of 12:00 midnight, New York City time, at the end of the day on Thursday, May 12, 2011, a total of approximately 72,544,987 Shares were validly tendered and not properly withdrawn in the Offer, representing approximately 75.4% of the outstanding Shares on a fully diluted basis (as determined pursuant to the Merger Agreement).
Pursuant to the terms of the Merger Agreement, Merger Sub has exercised the Top-Up Option to increase its ownership to at least 5,000 shares more than 90% of the number of shares of Company Common Stock outstanding (after giving effect to the issuance of the shares of Company Common Stock pursuant to the Top-Up Option). As described in the Merger Agreement, the purchase price per share of Company Common Stock in respect of the Top-Up Option is equal to the Offer Price. Parent has advised the Company that following the purchase of shares of Company Common Stock pursuant to the Top-Up Option, Merger Sub intends to promptly consummate the Merger under the short-form merger provisions of the DGCL and as described under the heading Vote Required to Approve the Merger of this Item 8, without any further action by or vote of the Companys stockholders other than Merger Sub. As described in the Merger Agreement, each Share that is issued and outstanding and that has not been accepted for purchase pursuant to the Offer (other than any Shares held in the treasury of the Company and any Shares owned by Parent, Merger Sub, or any direct or indirect subsidiary of Parent or the Company, all of which will be cancelled, and other than Shares held by stockholders who properly demand appraisal rights under the DGCL) will, at the Effective Time, be converted into the right to receive $5.00 per Share, net to the stockholder in cash, without interest and less any applicable withholding taxes, which is the same amount per Share that was paid in the Offer. Following the Merger, the Shares will no longer be listed on the Nasdaq Global Select Market and the Companys reporting obligations will be suspended.
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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.
INSPIRE PHARMACEUTICALS, INC. | ||
By: | /s/ Adrian Adams | |
Name: | Adrian Adams | |
Title: | President and Chief Executive Officer |
Dated: May 13, 2011