UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(RULE 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
PROSENSA HOLDING N.V.
(Name of Subject Company)
BIOMARIN FALCONS B.V. and BIOMARIN GIANTS B.V.
(Name of Filing Persons (Offeror))
BIOMARIN PHARMACEUTICAL INC.
(Name of Filing Persons (Parent of Offeror))
ORDINARY SHARES, 0.01 NOMINAL VALUE PER SHARE
(Title of Class of Securities)
N71546100
(CUSIP Number of Class of Securities)
G. Eric Davis, Esq.
Senior Vice President, General Counsel and Secretary
BioMarin Pharmaceutical Inc.
105 Digital Drive
Novato, California 94949
Telephone: (415) 506-6700
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)
with copies to:
Kevin B. Espinola, Esq.
Jones Day
3161 Michelson Drive, Suite 800
Irvine, California 92612
Telephone: (949) 851-3939
CALCULATION OF FILING FEE
Transaction Valuation* | Amount of Filing Fee** | |
$845,601,615.65 |
$98,258.91 |
* | Calculated solely for purposes of determining the filing fee. The transaction valuation was calculated by multiplying (1) the offer price of the sum of (a) $17.75 per share of ordinary stock of Prosensa Holding N.V., 0.01 nominal value per share, (Shares) and (b) the maximum aggregate contingent cash consideration payment of $4.14 per Share, by (2) 38,629,585, which is the sum of (i) 36,141,379 Shares outstanding as of December 10, 2014 (including 204,750 restricted Shares), and (ii) 2,488,206 Shares issuable pursuant to outstanding options as of December 10, 2014, in each case, as advised by Prosensa Holding N.V. |
** | The filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, is calculated by multiplying the Transaction Valuation by 0.0001162. |
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: $98,258.91 | Filing Party: BioMarin Falcons B.V., BioMarin Giants B.V. and BioMarin Pharmaceuticals Inc. | |
Form of Registration No.: Schedule TO | Date Filed: December 12, 2014 |
¨ | 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 Amendment No. 1 (this Amendment) amends and supplements the Tender Offer Statement on Schedule TO, filed with the Securities and Exchange Commission on December 12, 2014 (which, together with any subsequent amendments and supplements thereto, collectively constitutes this Schedule TO). This Schedule TO relates to the tender offer by BioMarin Falcons B.V. and BioMarin Giants B.V. (together, Purchaser), each a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) organized under the laws of the Netherlands and a wholly-owned direct or indirect subsidiary of BioMarin Pharmaceutical Inc., a Delaware corporation (Parent), for all of the outstanding ordinary shares, nominal value 0.01 per share (Shares), of Prosensa Holding N.V., a public limited liability company (naamloze vennootschap) organized under the laws of the Netherlands (Prosensa), at a purchase price of $17.75 per Share, net to the seller in cash (the Cash Consideration), plus one non-transferrable contingent value right (CVR) per Share, which represents the contractual right to receive cash payments of up to $4.14 per Share in the aggregate upon the achievement of certain product approval milestones (the Cash Consideration, together with one CVR, the Offer Price), in each case, without interest thereon and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 12, 2014 (the Offer to Purchase), a copy of which is attached as Exhibit (a)(1)(A), and in the related Letter of Transmittal, a copy of which is attached as Exhibit (a)(1)(B) (the Letter of Transmittal, together with the Offer to Purchase, as each may be amended or supplemented from time to time, constitutes the Offer).
All the information set forth in the Offer to Purchase is incorporated by reference herein in response to Items 1 through 9 and Item 11 of this Schedule TO, and is supplemented by the information specifically provided in this Amendment.
Item 11. | Additional Information. |
Regulation M-A Item 1011
Item 11 of this Schedule TO is hereby amended and supplemented as follows:
On December 23, 2014 at 11:59 p.m., the waiting period under the HSR Act, relating to the Offer expired. Accordingly, the condition of the Offer relating to the expiration or termination of the applicable waiting period under the HSR Act has been satisfied.
The Offer continues to be subject to the other conditions set forth in Section 15Certain Conditions of the Offer of the Offer to Purchase.
The joint press release announcing the expiration of the HSR waiting period is attached hereto as Exhibit (a)(5)(H).
Item 12. | Exhibits. |
Regulation M-A Item 1016
Item 12 of this Schedule TO is hereby amended and supplemented by adding the following exhibit thereto:
(a)(5)(H) | Joint Press Release issued by BioMarin Pharmaceutical Inc. and Prosensa Holding N.V. on December 24, 2014. |
SIGNATURES
After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: December 24, 2014
BioMarin Falcons B.V. | ||
By: | /s/ G. Eric Davis | |
Name: | G. Eric Davis | |
Title: | Managing Director | |
By: | /s/ Robert Baffi | |
Name: | Robert Baffi | |
Title: | Managing Director | |
BioMarin Giants B.V. | ||
By: | /s/ G. Eric Davis | |
Name: | G. Eric Davis | |
Title: | Managing Director | |
By: | /s/ Robert Baffi | |
Name: | Robert Baffi | |
Title: | Managing Director | |
BioMarin Pharmaceutical Inc. | ||
By: | /s/ G. Eric Davis | |
Name: | G. Eric Davis | |
Title: | Senior Vice President, General Counsel & Secretary |
Exhibit Index
Exhibit No. |
Description | |
(a)(1)(A)* | Offer to Purchase, dated December 12, 2014. | |
(a)(1)(B)* | Letter of Transmittal. | |
(a)(1)(C)* | Notice of Guaranteed Delivery. | |
(a)(1)(D)* | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
(a)(1)(E)* | Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
(a)(1)(F)* | Summary Advertisement as published in the New York Times on December 12, 2014. | |
(a)(5)(A)* | Joint Press Release issued by BioMarin Pharmaceutical Inc. and Prosensa Holding N.V. on November 24, 2014 (incorporated by reference to Exhibit 99.1 to the Form 8-K filed by BioMarin Pharmaceutical Inc. with the Securities and Exchange Commission on November 24, 2014). | |
(a)(5)(B)* | Slide Presentation, dated November 24, 2014 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by BioMarin Pharmaceutical Inc. with the Securities and Exchange Commission on November 24, 2014). | |
(a)(5)(C)* | Transcript of Investor Conference held by BioMarin Pharmaceutical Inc. on November 24, 2014 (incorporated by reference to Exhibit 99.2 to the Schedule TO-C filed by BioMarin Pharmaceutical Inc. with the Securities and Exchange Commission on November 24, 2014). | |
(a)(5)(D)* | Email Communication from BioMarin Pharmaceutical Inc.s Chief Executive Officer to BioMarin Pharmaceutical, Inc. Employees on November 24, 2014 (incorporated by reference to Exhibit 99.3 to the Schedule TO-C filed by BioMarin Pharmaceutical Inc. with the Securities and Exchange Commission on November 24, 2014). | |
(a)(5)(E)* | Email Communication from BioMarin Pharmaceutical Inc.s Chief Executive Officer to Prosensa Holding N.V. Employees on November 24, 2014 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by BioMarin Pharmaceutical Inc. with the Securities and Exchange Commission on November 26, 2014). | |
(a)(5)(F)* | Slide Presentation, dated December 1, 2014 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by BioMarin Pharmaceutical Inc. with the Securities and Exchange Commission on December 1, 2014). | |
(a)(5)(G)* | Slides Presented at Investor Conference, dated December 10, 2014 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by BioMarin Pharmaceutical Inc. with the Securities and Exchange Commission on December 10, 2014). | |
(a)(5)(H) | Joint Press Release issued by BioMarin Pharmaceutical Inc. and Prosensa Holding N.V. on December 24, 2014. | |
(d)(1)* | Purchase Agreement, dated as of November 23, 2014, among BioMarin Falcons B.V., BioMarin Pharmaceutical Inc. and Prosensa Holding N.V. (incorporated by reference to Exhibit 2.01 to the Form 8-K filed by BioMarin Pharmaceutical Inc. with the Securities and Exchange Commission on November 26, 2014). | |
(d)(2)* | Form of Contingent Value Rights Agreement (incorporated by reference to Exhibit 10.1 to the Form 8-K filed by BioMarin Pharmaceutical Inc. with the Securities and Exchange Commission on November 26, 2014). | |
(d)(3)* | Form of Tender and Support Agreement (incorporated by reference to Exhibit 10.2 to the Form 8-K filed by BioMarin Pharmaceutical Inc. with the Securities and Exchange Commission on November 26, 2014). | |
(d)(4)* | Convertible Promissory Note, dated as of November 26, 2014, between Prosensa Holding N.V. and BioMarin Falcons B.V. (incorporated by reference to Exhibit 10.3 to the Form 8-K filed by BioMarin Pharmaceutical Inc. with the Securities and Exchange Commission on November 26, 2014). | |
(d)(5)* | Mutual Non-Disclosure Agreement, dated July 31, 2014, between BioMarin Pharmaceutical Inc. and Prosensa Holding N.V. | |
(g) | Not applicable. | |
(h) | Not applicable. |
* | Filed Previously |
EXHIBIT (a)(5)(H)
Contacts: | ||||
Investors Traci McCarty BioMarin Pharmaceutical Inc. (415) 455-7558 |
Media Debra Charlesworth BioMarin Pharmaceutical Inc. (415) 455-7451 |
For Immediate Release:
BioMarin and Prosensa Announce Expiration of the Hart-Scott-Rodino
Waiting Period for BioMarins Proposed Acquisition of Prosensa
SAN RAFAEL, Calif., December 24, 2014 BioMarin Pharmaceutical Inc. (NASDAQ: BMRN) and Prosensa Holding N.V. (NASDAQ: RNA) today announced the expiration of the mandatory waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act), which occurred at 11:59 p.m. on December 23, 2014, with respect to BioMarins pending acquisition of Prosensa.
The expiration of the waiting period under the HSR Act period satisfies one of the conditions to the closing of the previously disclosed tender offer by BioMarin to purchase all of the outstanding ordinary shares of Prosensa, which remains subject to certain other closing conditions described in the tender offer statement on Schedule TO, filed by BioMarin with the Securities and Exchange Commission (the SEC) on December 12, 2014.
About Prosensa
Prosensa Holding N.V. is a biotechnology company based in Leiden, the Netherlands, which discovers and develops RNA-modulating therapeutics for the treatment of genetic disorders. The primary focus is on rare neuromuscular and neurodegenerative disorders with a large unmet medical need, including DMD, myotonic dystrophy and Huntingtons disease. Prosensas lead compound for DMD, is drisapersen. Its seven follow-on programs for other DMD genotypes are currently in various stages of development from preclinical through Phase 2. In addition, the Prosensa has preclinical products in development for Huntingtons disease and myotonic dystrophy. Prosensa has approximately 100 employees.
About BioMarin
BioMarin develops and commercializes innovative biopharmaceuticals for serious diseases and medical conditions. BioMarins product portfolio comprises five approved products and multiple clinical and pre-clinical product candidates. Approved products include: Naglazyme® (galsulfase) for mucopolysaccharidosis VI (MPS VI), a product wholly developed and commercialized by BioMarin; Aldurazyme® (laronidase) for mucopolysaccharidosis I (MPS I), a product which BioMarin developed through a 50/50 joint venture with Genzyme Corporation;
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KUVAN® (sapropterin dihydrochloride) Powder for Oral Solution and Tablets, for phenylketonuria (PKU), developed in partnership with Merck Serono, a division of Merck KGaA of Darmstadt, Germany; Firdapse® (amifampridine), which has been approved by the European Commission for the treatment of Lambert Eaton Myasthenic Syndrome (LEMS); and VIMIZIM® (elosulfase alfa) for the treatment of Morquio A (MPS IVA). Product candidates include: BMN 165 (PEGylated recombinant phenylalanine ammonia lyase), also referred to as PEG PAL, which is currently in Phase 3 clinical development for the treatment of PKU; talazoparib (BMN 673), a poly ADP-ribose polymerase (PARP) inhibitor, which is currently in Phase 3 clinical development for the treatment of germline BRCA breast cancer; BMN 701, a novel fusion of acid alpha glucosidase (GAA) with a peptide derived from insulin like growth factor 2, which is currently in Phase 3 clinical development for the treatment of Pompe disease; BMN 111, a modified C-natriuretic peptide, which is currently in Phase 2 clinical development for the treatment of achondroplasia; and BMN 190, a recombinant human tripeptidyl peptidase-1 (rhTPP1), which is currently in Phase 1 for the treatment of late-infantile neuronal ceroid lipofuscinosis (CLN2), a form of Batten Disease. For additional information, please visit www.BMRN.com. Information on BioMarins website is not incorporated by reference into this press release.
Additional Information
This press release is neither an offer to purchase nor a solicitation of an offer to sell securities. The tender offer for the outstanding ordinary shares of Prosensa Holding N.V. described in this press release is being made pursuant to a tender offer statement on Schedule TO, filed by BioMarin Pharmaceutical Inc., BioMarin Falcons B.V. and BioMarin Giants B.V. with the SEC on December 12, 2014. Prosensa Holding N.V. filed a solicitation/recommendation statement on Schedule 14D-9 with respect to the Tender Offer on December 12, 2014.
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 ON SCHEDULE 14D-9, AS THEY MAY BE AMENDED OR SUPPLEMENTED 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 offer to purchase, the related letter of transmittal and certain other offer documents, as well as the solicitation/recommendation statement, are available to all shareholders of Prosensa Holding N.V. at no expense to them from BioMarin by directing a request to Morrow & Co., LLC, the information agent for the tender offer, at prosensa.info@morrowco.com; (800)-267-0201; or 470 West Avenue, Stamford, CT 06902. These documents will also be available at no charge at the SECs website at www.sec.gov.
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 BioMarin or Prosensa are intended to identify such forward-looking statements. These forward-looking statements involve risks and uncertainties concerning the parties ability to consummate the tender offer and the transactions contemplated thereby. Actual events or results may differ materially from those
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described in this document due to a number of risks and uncertainties. These potential risks and uncertainties include, among others, the remaining conditions to the tender offer, the ability of the parties to complete the transaction and other risks detailed in BioMarins and Prosensas SEC filings, including those discussed in BioMarins 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 Prosensas 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. Neither Prosensa nor BioMarin is 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.
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