UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(RULE 14d100)
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
Prosensa Holding N.V.
(Name of Subject Company)
BioMarin Falcons B.V.
(Offeror)
BioMarin Pharmaceutical Inc.
(Parent of Offeror)
(Names of Filing Persons)
ORDINARY SHARES, PAR VALUE 0.01 PER SHARE
(Title of Class of Securities)
N71546100
(Cusip Number of Class of Securities)
G. Eric Davis
Senior Vice President, General Counsel
BioMarin Pharmaceutal Inc.
770 Lindaro Street
San Rafael, California 94901
(415) 506-6700
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
With a copy to:
Kevin Espinola
Jones Day
3161 Michelson Dr., Suite 800
Irvine, California 92612
(949) 851-3939
CALCULATION OF FILING FEE
Transaction Valuation* | Amount of Filing Fee* | |
N/A* | N/A* | |
* | A filing fee is not required in connection with this filing as it relates solely to preliminary communications made before the commencement of the tender offer. |
¨ | 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: n/a | Filing Party: n/a | |
Form of Registration No.: n/a | Date Filed: n/a |
x | 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. ¨
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
¨ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
¨ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This filing relates solely to preliminary communications made before the commencement of a tender offer (the Offer) by BioMarin Falcons B.V., (Buyer) a private company with limited liability organized under the laws of The Netherlands and an indirect wholly owned subsidiary of BioMarin Pharmaceutical Inc., a Delaware corporation (BioMarin or the Company), to purchase all of the issued and outstanding ordinary shares, par value 0.01 per share (the Shares), of Prosensa Holding N.V., a public limited liability company organized under the laws of The Netherlands (Prosensa), at a purchase price of $17.75 per Share, net to the seller in cash, plus one non-transferrable contingent value right per Share, which represents the contractual right to receive a cash payment of up to $4.14 per Share upon the achievement of certain product approval milestones, in each case, without interest thereon and less any applicable withholding taxes, upon the terms and subject to the conditions contained in the Purchase Agreement, dated as of November 23, 2014, by and among Buyer, BioMarin and Prosensa.
ADDITIONAL INFORMATION
The Offer described in this communication and related exhibits has not yet commenced, and this communication and related exhibits is neither an offer to purchase nor a solicitation of an offer to sell any ordinary shares of Prosensa or any other securities. On the commencement date of the Offer, a tender offer statement on Schedule TO, including an offer to purchase, a letter of transmittal and related documents, will be filed with the United States Securities and Exchange Commission (the SEC). Thereafter, Prosensa will file a solicitation/recommendation statement on Schedule 14D-9 with the SEC. The offer to purchase ordinary shares of Prosensa will only be made pursuant to the offer to purchase, the letter of transmittal and related documents filed as a part of the Schedule TO.
INVESTORS AND SECURITY HOLDERS OF PROSENSA ARE URGED TO READ BOTH THE SCHEDULE TO (AND THE INCLUDED OFFER TO PURCHASE) AND THE SOLICITATION/RECOMMENDATION STATEMENT, AS THEY MAY BE AMENDED FROM TIME TO TIME, AND OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BEFORE THEY MAKE ANY DECISION WITH RESPECT TO THE TENDER OFFER, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE TERMS OF THE OFFER, THE PROPOSED TRANSACTIONS AND THE PARTIES THERETO.
The tender offer statement will be filed with the SEC by BioMarin and Buyer, and the solicitation/recommendation statement will be filed with the SEC by Prosensa. Investors and security holders may obtain a free copy of these statements (when available) and other documents filed with the SEC at the website maintained by the SEC at www.sec.gov or by directing such requests to the Information Agent for the tender offer that will be named in the tender offer statement on Schedule TO.
Cautionary Note Regarding Forward-Looking Statements
Any statements contained in this document that are not historical facts are forward-looking statements as defined in the U.S. Private Securities Litigation Reform Act of 1995. Words such as anticipate, believe, estimate, expect, forecast, intend, may, plan, project, predict, should and will and similar expressions as they relate to the Company, Buyer or Prosensa are intended to identify such forward-looking statements. These forward-looking statements involve risks and uncertainties concerning the parties ability to initiate the tender offer, close the transaction, terminate the Purchase Agreement, the expected closing date of the transaction, the anticipated benefits and synergies of the proposed transaction, anticipated future combined operations, products and services. Actual events or results may differ materially from those described in this document due to a number of risks and uncertainties. These potential risks and uncertainties include, among others, the outcome of regulatory reviews of the proposed transaction, the ability of the parties to complete the transaction, and other risks detailed in the Companys and Prosensas SEC filings, including those discussed in the Companys Annual Report on Form 10-K for the year ended December 31, 2013 and in any subsequent periodic reports on Form 10-Q and Form 8-K and Prosesas Annual Report on Form 20-F for the year ended December 31, 2013 and in any subsequent reports on Form 6-K, each of which is on file with the SEC and available at the SECs website at www.sec.gov. The Company is not obligated to update these forward-looking statements to reflect events or circumstances after the date of this document. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of their dates.
EXHIBIT INDEX
Exhibit 99.1 | Email Communication from BioMarins Chief Executive Officer to Prosesensa Employees on November 24, 2014 |
Exhibit 99.1
Dear Prosensa Employees,
I am thrilled to share with you today that BioMarin announced that we will launch a tender offer for the purchase 100% of Prosensas outstanding shares, which means that, upon the satisfaction of certain conditions, including the tender of 80% of Prosensas outstanding ordinary shares into the tender offer, we would acquire Prosensa. Assuming a successful closing of the transaction, I would like to welcome you to BioMarin. After completion of the transaction, you will become part of an exciting organization that shares your focus on making a big difference for small patient populations. Because we mostly develop treatments for ultra-rare genetic diseases, which mostly affect children, we are fortunate that we have the opportunity to truly know and care about the patients who take our therapies. I am looking forward to meeting you, and meeting the families in the Duchenne Muscular Dystrophy (DMD) community.
As a Propensa employee, for most of you, this acquisition probably wont change much of your day-to-day work, except that youll be doing it under the BioMarin name. You will still continue the important work that you are doing for boys affected with DMD. During the period before the deal officially closes, BioMarin and Prosensa will be working together on the transition plan, which we will communicate to you as the plan develops and implement it after the closing.
For those of you not familiar with BioMarin, we are a global company that focuses on rare genetic diseases. BioMarin is a truly global company, and most of our revenues are generated outside of the United States. We are committed to serving patients around the world. I was born in France and spent my formative teenage years in Paris. I have lived in the United States for more than 25 years and still have family in France.
We have entered into this deal because we believe that the employees of Prosensa have done an exceptional job of developing the best drug candidate to treat DMD and believe that we share the same values. Like you, we are good at developing therapies for rare diseases, we can do a lot with a little, we are adaptable, and we are good at managing risk.
One of the things that excites me most about this opportunity is the commitment we are making to the families with children with DMD. Just as we have done with our other therapies, we are looking to make a big difference for this small patient population with Prosensas experimental therapy, drisapersen. We are impressed with Prosensas promising exon-skipping technology, which has the potential to not only help this patient population, but may be able to help a broader group of the DMD population. From a patient perspective, this is the best possible outcome in drug development, and it is good for our business.
My vision for this acquisition for BioMarin is to create a DMD franchise in the same way that we created the Mucopolysaccharidoses (MPS) franchise and to do it in significantly less time. To accomplish that, we need the Prosensa employees to maintain their focus on current goals around the development of drisapersen in DMD.
You should feel good about our company, which is succeeding on all fronts. We have pulled together to move VIMIZIM from approval to successful commercial product, we have continued to grow our legacy products in the double digits, and our future is bright with one of the most exciting pipelines in the industry, which is about to get more exciting with the addition of the
Propensa molecules. Thank you for all of your work on behalf of our potential future patients. I look forward to sharing more information about this important news in the coming weeks.
Sincerely, |
JJ Bienaimé |
CEO, BioMarin Pharmaceutical Inc. |
Additional Information
The Offer described in this communication has not yet commenced, and this communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell any ordinary shares of Prosensa or any other securities. On the commencement date of the Offer, a tender offer statement on Schedule TO, including an offer to purchase, a letter of transmittal and related documents, will be filed with the United States Securities and Exchange Commission (the SEC). Thereafter, Prosensa will file a solicitation/recommendation statement on 14D-9 with the SEC. The solicitation and offer to purchase ordinary shares of Prosensa will only be made pursuant to the offer to purchase, the letter of transmittal and related documents filed as a part of the Schedule TO.
Investors and security holders of Prosensa are urged to read both the schedule to (and the included offer to purchase) and the solicitation/recommendation statement, as they may be amended from time to time and other relevant documents filed with the SEC when they become available before they make any decision with respect to the tender offer, because they will contain important information about the terms of the offer, the proposed transactions and the parties thereto.
Investors and security holders may obtain a free copy of these statements (when available) and other documents filed with the SEC at the website maintained by the SEC at www.sec.gov or by directing such requests to the Information Agent for the tender offer that will be named in the tender offer statement.