UNITED STATES
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. 22)
GENZYME CORPORATION
(Name of Subject Company (Issuer))
GC MERGER CORP.
SANOFI-AVENTIS
(Offerors)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, $0.01 par value
(Title of Class of Securities)
372917104
(CUSIP Number of Class of Securities)
Karen Linehan
Senior Vice President Legal Affairs and General Counsel
sanofi-aventis
174, avenue de France
75013 Paris, France
Telephone: +33 1 53 77 40 00
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copy to:
Michael J. Aiello, Esq.
Jaclyn L. Cohen, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
(212) 310-8000
CALCULATION OF FILING FEE
| Transaction Valuation(1) | Amount of Filing Fee(2) | |||
| $20,815,243,635 | $ 1,594,498 | |||
| (1) | Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by adding: (i) the product of (x) 268,775,068 (the number of shares of outstanding common stock of Genzyme Corporation (the “Shares”) as of March 21, 2011 plus the number of Shares underlying Genzyme’s outstanding restricted stock units as of March 21, 2011 and the number of shares of common stock issuable in respect of Genzyme’s employee stock purchase plan for the first quarter of 2011 estimated as |
| of March 22, 2011 and (y) the sum of (A) $74.00 (the amount of the cash consideration per share payable in the exchange offer and the merger) and (B) $1.69 (the result of $75.69, the average of the high and low prices of the Shares as reported on the NASDAQ Global Select Market on March 21, 2011, less $74.00, such amount, the “Attributed CVR Value”); and (ii) the sum of (A) the product of (x) 15,522 (the number of Shares issuable in respect of certain outstanding rights to purchase Shares as of March 21, 2011) and (y) $57.49 (the sum of (I) the Attributed CVR Value and (II) the difference between $74.00 and $18.20, the exercise price of such rights) and (B) the product of (x) 22,691,145 (the number of Shares issuable upon exercise of outstanding Genzyme options with an exercise price less than $74.00 as of March 21, 2011) and (y) $20.7467 (the sum of (I) the Attributed CVR Value and (II) the difference between $74.00 and $54.9433, the weighted-average exercise price of such options). The calculation of the filing fee is based on Genzyme’s representation of its capitalization delivered on March 22, 2011. This represents an increase in the transaction value of $106,300,788 as compared with the transaction value as set forth in the amendment to Schedule TO filed by sanofi-aventis on March 7, 2011. |
| (2) | The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, by multiplying the increase in the transaction value by 0.00011610, and adding the resulting amount to the fee amount of $1,582,156 previously paid in connection with the filing by sanofi-aventis of the Schedule TO on October 4, 2010, the Registration Statement on Form F-4 on March 7, 2011 and Amendment No. 19 to the Schedule TO dated March 7, 2011. Taking account of all of the offsets set forth below, a net fee of $11,855 will be paid with this filing. |
| þ | 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. |
$1,308,472 was paid in connection with the filing by sanofi-aventis of the Schedule TO on October 4, 2010. $50,730 was paid in connection with the filing by sanofi-aventis of the Registration Statement on Form F-4 on March 7, 2011. $222,954 was paid in connection with the filing by sanofi-aventis of Amendment No. 19 to the Schedule TO dated March 7, 2011. $487 was paid in connection with the filing by sanofi-aventis of the Second Amendment to the Registration Statement on Form F-4/A on March 24, 2011.
| ¨ | 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:
| þ | 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. 22 (this “Amendment”) amends the Tender Offer Statement on Schedule TO filed with the U.S. Securities and Exchange Commission (the “SEC”) on October 4, 2010, as amended and restated on March 7, 2011 (which, as so amended and restated and together with any amendments and supplements thereto, collectively constitute the “Schedule TO”) and is filed by (i) GC Merger Corp., a Massachusetts corporation (the “Purchaser”), and a wholly-owned subsidiary of sanofi-aventis, a French société anonyme (“Parent”) and (ii) Parent. This Schedule TO relates to the third party tender offer by Purchaser to exchange each of the issued and outstanding shares of common stock, par value $0.01 (each, a “Share”), of Genzyme Corporation, a Massachusetts corporation (“Genzyme”), for (i) $74.00 in cash, less any applicable withholding for taxes and without interest and (ii) one Contingent Value Right (each, a “CVR”) upon the terms and subject to the conditions set forth in the Prospectus/Offer to Exchange (as defined below), and in the related letter of transmittal (the “Letter of Transmittal”) (the offer reflected by such terms and conditions, as they may be amended or supplemented from time to time, constitutes the “Exchange Offer”).
On March 24, 2011, Parent filed Amendment No. 2 to its Registration Statement on Form F-4 (file no. 333-172638) relating to the offer and sale of the CVRs to be issued to holders of Shares in the Exchange Offer. The terms and conditions of the Exchange Offer are set forth in the prospectus/offer to exchange, which is part of the Registration Statement (the “Prospectus/Offer to Exchange”), and the related Letter of Transmittal, which are set forth as Exhibit (a)(4) and Exhibit (a)(1)(B) hereto, respectively.
Documentation relating to the Exchange Offer has been mailed to Genzyme shareholders 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.
Amendments to the Offer to Exchange
Items 1 through 11.
The Offer to Exchange and Items 1 through 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Exchange, are hereby amended to reflect such information as set forth in Amendment No. 2 to Parent’s Registration Statement on Form F-4.
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended by deleting the existing exhibit and substituting the following exhibit thereto:
| Exhibit |
Exhibit Name | |
| (a)(4) |
Offer to Exchange (incorporated by reference to sanofi-aventis’ Registration Statement on Form F-4, filed March 7, 2011, as amended on March 18, 2011 and March 24, 2011). | |
Item 13. Information Required by Schedule 13E-3.
Not applicable.
SIGNATURE
After due inquiry and to the best of the knowledge and belief of each of the undersigned, each of the undersigned hereby certifies that the information set forth in this statement is true, complete and correct.
| SANOFI-AVENTIS | ||
| By: | /s/ Alexandre Lemoalle | |
| Name: | Alexandre Lemoalle | |
| Title: | Authorized Signatory | |
| GC MERGER CORP. | ||
| By: | /s/ Karen Linehan | |
| Name: | Karen Linehan | |
| Title: | Authorized Signatory | |
Date: March 24, 2011
EXHIBIT INDEX
| Exhibit |
Exhibit Name | |
| (a)(1)(A) |
Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number (TIN) on Substitute Form W-9).* | |
| (a)(1)(B) |
Notice of Guaranteed Delivery.* | |
| (a)(1)(C) |
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(D) |
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(E) |
Form of Summary Advertisement as published on March 7, 2011 in The Wall Street Journal.* | |
| (a)(4) |
Prospectus/Offer to Exchange filed March 7, 2011, as amended on March 18, 2011 and March 24, 2011.** | |
| (a)(5)(A) |
Press Release issued by sanofi-aventis on October 4, 2010.* | |
| (a)(5)(B) |
English Translation of Excerpts from Offer to Purchase published in France by sanofi-aventis on October 4, 2010.* | |
| (a)(5)(C) |
Investor Presentation by sanofi-aventis dated October 4, 2010.* | |
| (a)(5)(D) |
Transcript of Investor Conference Call held by sanofi-aventis on October 4, 2010.* | |
| (a)(5)(E) |
Press Release issued by sanofi-aventis on October 20, 2010.* | |
| (a)(5)(F) |
Excerpt from Investor Presentation by sanofi-aventis on October 28, 2010.* | |
| (a)(5)(G) |
Excerpts of Transcript of Earnings Conference Call held by sanofi-aventis on October 28, 2010.* | |
| (a)(5)(H) |
Press Release issued by sanofi-aventis on November 8, 2010.* | |
| (a)(5)(I) |
Press Release issued by sanofi-aventis on December 13, 2010.* | |
| (a)(5)(J) |
Press Release issued by sanofi-aventis on January 9, 2011.* | |
| (a)(5)(K) |
Excerpt from Investor Presentation by sanofi-aventis on January 11, 2011.* | |
| (a)(5)(L) |
Press Release issued by sanofi-aventis on January 12, 2011.* | |
| (a)(5)(M) |
Press Release issued by sanofi-aventis on January 24, 2011.* | |
| (a)(5)(N) |
Letter Agreement dated as of January 30, 2011 by and between sanofi-aventis and Genzyme Corporation.* | |
| (a)(5)(O) |
Excerpt from Investor Presentation by sanofi-aventis on February 9, 2011.* | |
| (a)(5)(P) |
Joint Press Release issued by sanofi-aventis and Genzyme on February 16, 2011.* | |
| (a)(5)(Q) |
Investor Presentation by sanofi-aventis and Genzyme on February 16, 2011.* | |
| (a)(5)(R) |
Town Hall presentation to Genzyme employees on February 16, 2011.* | |
| (a)(5)(S) |
Transcript of Investor Conference Call held by sanofi-aventis and Genzyme on February 16, 2011.* | |
| (a)(5)(T) |
Transcript of Town Hall presentation to Genzyme employees on February 16, 2011.* | |
| (a)(5)(U) |
Press Release issued by sanofi-aventis on March 7, 2011.* | |
| (a)(5)(V) |
Press Release issued by sanofi-aventis on March 23, 2011.* | |
| (b)(A) |
Facilities Agreement, dated October 2, 2010, by and among sanofi-aventis, BNP Paribas, J.P. Morgan plc and Société Générale Corporate & Investment Banking acting as Initial Mandated Lead Arrangers, Société Générale acting as Facilities Agent and the Financial Institutions included as Lenders therein.* | |
| (b)(B) |
Amendment Agreement dated as of February 15, 2011, Relating to a Term Facilities Agreement dated October 2, 2010, by and among sanofi-aventis, BNP Paribas, J.P. Morgan plc and Société Générale Corporate & Investment Banking acting as Initial Mandated Lead Arrangers, Société Générale acting as Facilities Agent.* | |
| (d)(1) |
Agreement and Plan of Merger, dated as of February 16, 2011, among sanofi-aventis, GC Merger Corp. and Genzyme Corporation.* | |
| (d)(2) |
Form of Contingent Value Rights Agreement by and between sanofi-aventis and Trustee.* | |
| (g) |
Not applicable. | |
| (h) |
Not applicable. | |
| * | Previously filed. |
| ** | Incorporated by reference to sanofi-aventis’ Registration Statement on Form F-4, filed March 7, 2011, as amended on March 18, 2011 and March 24, 2011. |
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| 767 Fifth Avenue New York, NY 10153-0119 +1 212 310 8000 tel +1 212 310 8007 fax
Michael J. Aiello +1 212 310 8552 michael.aiello@weil.com |
Weil, Gotshal & Manges LLP |
March 24, 2011
United States Securities and Exchange Commission
Division of Corporation Finance
100 F Street, NE
Washington, D.C. 20549
Attn: David L. Orlic, Special Counsel, Office of Mergers & Acquisitions
| Re: | Genzyme Corporation |
| Amendment No. 20 to Schedule TO-T |
| Filed by GC Merger Corp. and Sanofi-Aventis |
| Filed on March 18, 2011 |
| File No. 005-37205 |
| Sanofi-Aventis |
| Amendment No. 1 to Registration Statement on Form F-4 |
| Filed on March 18, 2011 |
| File No. 333-172638 |
Dear Mr. Orlic:
On behalf of our client, Sanofi-Aventis (the “Company”), and its wholly-owned subsidiary, GC Merger Corp., please find responses to the comments from the Staff’s letter to the Company (File No. 005-37205) of March 22, 2011 regarding the Exchange Offer on Schedule TO (the “Exchange Offer”) and Amendment No. 1 to the Registration Statement on Form F-4 (the “Registration Statement”) filed March 18, 2011. Set forth below in bold are comments from the Staff’s letter. Immediately below each of the Staff’s comments is the Company’s response to that comment. For your convenience, each of the numbered paragraphs below corresponds to the numbered comment in the Staff’s comment letter and includes the caption used in the comment letter.
Mr. David Orlic
United States Securities and Exchange Commission
March 24, 2011
Page 2
General
| 1. | We note your response to prior comment 1. Please address Item 1004 of Regulation M-A as requested. |
Item 1004(a) of Regulation M-A requires disclosure of the material terms of a transaction. Item (1)(ii) of Item 1004(a) requires that, in a tender offer, the bidder disclose the type and amount of consideration to be offered to security holders. In the Prospectus/Offer to Exchange, the Company has disclosed in great detail the consideration offered. See for example the disclosure on the cover page of the Prospectus/Offer to Exchange, where the Company states:
“GC Merger Corp., a Massachusetts corporation (“Purchaser”) and a direct wholly-owned subsidiary of sanofi-aventis, a French société anonyme (“Parent”), is offering to exchange each of the issued and outstanding shares of common stock, par value $0.01 (the “Shares”), of Genzyme Corporation, a Massachusetts corporation (“Genzyme”), for (i) $74.00 in cash, less any applicable withholding for taxes and without interest (the “Cash Consideration”), and (ii) one contingent value right (each, a “CVR,” and, together with the Cash Consideration, the “Merger Consideration”), upon the terms and subject to the conditions set forth in this Prospectus/Offer to Exchange and in the related Letter of Transmittal (which collectively, as each may be amended or supplemented from time to time, constitute the “Exchange Offer”).”
This disclosure is repeated in the Prospectus/Offer to Exchange on pages iii, 1 and 53. The Prospectus/Offer to Exchange also discloses in detail the specified regulatory and commercial milestones that must be achieved for payments to be due under the CVRs. See for example the disclosure under the caption “Contingent Value Rights” on page 2 and the related disclosure on pages 81 through 90, where the Company has disclosed not only the specific contingent payment milestones but also a summary of all of the material terms of the CVR agreement, including the provisions providing for notices and payments.
The disclosure in the Prospectus/Offer to Exchange also references the Merger Agreement and the form of CVR agreement, which are included as Annexes to the Prospectus/Offer to Exchange.
For the reasons outlined above, the Company believes that the disclosure in the Prospectus/Offer to Exchange covers the material terms of the consideration and satisfies the applicable requirements of Item 1004 of Regulation M-A. The Company notes in this regard that the contingent payment milestones are clear objective events that are not subject to interpretation and that additional disclosure is not necessary. Each holder of CVRs will be able to determine whether or not the milestones have been achieved without additional guidance from the Company.
2
Mr. David Orlic
United States Securities and Exchange Commission
March 24, 2011
Page 3
CVR Condition, page 67
| 2. | We note your response to prior comment 9. However, the CVR Condition retains an element that the CVR Agreement has been duly executed and delivered by Parent. Regardless of any contractual obligation of Parent to execute the CVR Agreement prior to acceptance of tenders, the offer may not include conditions that are within an offeror’s control. Additionally, as noted in our prior letter, all offer conditions, other than receipt of certain regulatory approvals, must be satisfied or waived prior to offer expiration, not merely before acceptance of tenders. Please revise your disclosure accordingly. |
The Company has revised the relevant disclosure in response to the Staff’s comment.
Limitations on Suits by Holders, page 89
| 3. | We note the disclosure you have added regarding the limitation on the ability of holders to enforce their rights under the CVR Agreement. Given the substance of these restrictions, please tell us what consideration you gave to including a risk factor addressing these matters and to including a reference to these restrictions in the summary section of your prospectus. |
We advise the staff supplementally that the Company did not include a risk factor addressing the limitation on the ability of holders to enforce their rights under the CVR Agreement or a reference to these restrictions in the summary section because such restrictions are customary in agreements governing securities pursuant to which holders are represented by a trustee, including indentures, and the Company does not believe that these restrictions are among “the most significant factors that make the offering speculative or risky.” As disclosed under “Unconditional Right of Holders to Institute Certain Suits”, holders do have certain rights with respect to enforcement of the Company’s obligations under the CVR Agreement. Additionally, as set forth in Section 8.2 of the Form of CVR Agreement included as Annex B to the Prospectus/Offer to Purchase, the Trustee has broad rights to commence proceedings on behalf of CVR holders if warranted. The Company does not believe that a risk factor relating to limitations on the ability of holders to enforce their rights under the CVR Agreement or a reference to these restrictions is required to be included in the Prospectus/Offer to Purchase under applicable laws.
Schedule I
| 4. | We note your response to prior comment 11. As requested in that comment, please include the information required by Item 1003(c)(3) and (4) of Regulation M-A regarding Purchaser and Parent, or advise. See Item 1003(b) of Regulation M-A. |
The Company has revised the relevant disclosure in response to the Staff’s comment.
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Mr. David Orlic
United States Securities and Exchange Commission
March 24, 2011
Page 4
If you have any questions or would like to discuss any of the Company’s responses, please do not hesitate to call me (212-310-8552) or Jackie Cohen (212-310-8891) or, if more convenient, contact us via e-mail (michael.aiello@weil.com or jackie.cohen@weil.com).
Sincerely,
/s/ Michael J. Aiello
Michael J. Aiello
| cc: | Karen Linehan, |
| Senior Vice President Legal Affairs and General Counsel |
| Sanofi-Aventis |
| Via email: karen.linehan@sanofi-aventis.com |
| Jackie Cohen |
| Partner |
| Weil, Gotshal & Manges LLP |
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