SC TO-T/A
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. 3)
SOLTA
MEDICAL, INC.
(Name of Subject Company (Issuer))
Sapphire Subsidiary Corp.
a wholly owned subsidiary of
Valeant Pharmaceuticals International
a wholly owned subsidiary of
Valeant Pharmaceuticals International, Inc.
(Names of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class Of Securities)
83438K103
(CUSIP Number
of Class of Securities)
Robert Chai-Onn
Executive Vice President, General Counsel, Corporate Secretary and Corporate Business Development
Valeant Pharmaceuticals International, Inc.
2150 St. Elzéar Blvd. West
Laval, Quebec
Canada,
H7L 4A8
(949) 461-6000
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
With copies to:
Stephen F. Arcano
Marie
L. Gibson
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York,
NY 10036
(212) 735-3000
CALCULATION
OF FILING FEE
|
|
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| Transaction Valuation(1) |
|
Amount Of Filing Fee(2) |
| $267,559,392.68 |
|
$34,461.65 |
| (1) |
The transaction valuation is an estimate calculated solely for purposes of determining the amount of the filing fee. The transaction valuation was determined by multiplying (x) $2.92 (i.e., the tender offer price) by
(y) the sum of (a) 83,861,129, the number of shares of common stock issued and outstanding (including 2,673,559 shares subject to restricted stock awards), plus (b) 3,181,829, the number of shares of common stock issuable upon the exercise of
outstanding stock options, plus (c) 4,586,971, the number of shares of common stock issuable upon the exercise of outstanding warrants. The foregoing share figures have been provided by the issuer to the offerors and are as of December 12, 2013, the
most recent practicable date. |
| (2) |
The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for Fiscal Year 2014, issued August 30, 2013, by multiplying the transaction
value by 0.00012880. |
| |
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. |
|
|
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| Amount Previously Paid: $34,461.65 |
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Filing Party: Sapphire Subsidiary Corp., Valeant Pharmaceuticals International and Valeant Pharmaceuticals International, Inc. |
| Form or Registration No.: Schedule TO-T; Schedule TO-T/A; Schedule TO-T/A |
|
Date Filed: December 23, 2013; January 13, 2014; January 15, 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:
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x |
third-party tender offer subject to Rule 14d-1. |
| |
¨ |
issuer tender offer subject to Rule 13e-4. |
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¨ |
going-private transaction subject to Rule 13e-3. |
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¨ |
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: x
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. 3
(“Amendment No. 3”) amends and supplements the Tender Offer Statement on Schedule TO filed with the U.S. Securities and Exchange Commission (the “SEC”) on December 23, 2013 and amended on January 13,
2014 and January 15, 2014 (as amended, the “Schedule TO”) and relates to the offer of Sapphire Subsidiary Corp., a Delaware corporation (the “Purchaser”), to purchase all outstanding shares of common stock, par
value $0.001 per share (each, a “Share”), of Solta Medical, Inc., a Delaware corporation (“Solta” or the “Company”), at a price of $2.92 per Share, net to the seller in cash, without interest (the
“Offer Price”), less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 23, 2013 (as it may be amended or supplemented, the “Offer to
Purchase”) and in the related Letter of Transmittal (as it may be amended or supplemented, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offer”), which are annexed to and filed
with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. The Purchaser is a wholly owned subsidiary of Valeant Pharmaceuticals International, a Delaware corporation (“VPI”), which is a wholly owned subsidiary of
Valeant Pharmaceuticals International, Inc., a Canadian corporation (“Valeant”). This Amendment No. 3 is being filed on behalf of VPI, Valeant and the Purchaser.
All the information set forth in the Offer to Purchase, to the extent incorporated by reference therein, is hereby amended and supplemented as
set forth below. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Offer to Purchase.
| ITEM 11. |
ADDITIONAL INFORMATION |
Item 11 of the Schedule TO is hereby amended and
supplemented by adding the following text thereto:
“The Offer expired at 12:00 midnight, New York City time, on
January 23, 2014 (one minute after 11:59 p.m. New York City time, on January 22, 2014). American Stock Transfer & Trust Company, LLC, the depositary for the Offer (the “Depositary”) has advised VPI and the
Purchaser that, as of the expiration of the Offer, a total of 68,819,968 Shares had been validly tendered into and not withdrawn pursuant to the Offer, representing approximately 85% of the outstanding Shares as of 12:00 midnight, New York City
time, on January 23, 2014. Additionally, the Depositary has advised VPI and the Purchaser that an additional 3,310,396 Shares had been tendered by notice of guaranteed delivery, representing approximately 4% of the outstanding Shares at
such time. The Purchaser has accepted for payment all Shares validly tendered pursuant to the Offer and not properly withdrawn.
Following the purchase of Shares in the Offer, the Purchaser has sufficient voting power to approve the merger in which the Purchaser
will merge with and into Solta, with Solta surviving the Merger and continuing as a wholly owned subsidiary of VPI (the “Merger”), without the affirmative vote of the stockholders of Solta in accordance with Section 251(h) of
the General Corporation Law of the State of Delaware (the “DGCL”). Accordingly, and subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, the Purchaser and VPI intend to consummate the Merger as
promptly as practicable in accordance with the terms of the Merger Agreement and without a vote by the stockholders of Solta to adopt the Merger Agreement or consummate the Merger in accordance with Section 251(h) of the DGCL. No other action
by the stockholders of Solta will be required pursuant to Delaware law or otherwise. As a result of the Merger, each Share issued and outstanding immediately prior to the Effective Time, other than (i) Shares held by Solta or owned by Valeant,
VPI or the Purchaser, or by any direct or indirect wholly owned subsidiary of Solta, VPI or Valeant (in each case, other than Shares held on behalf of third parties), all of which will be cancelled and will cease to exist and (ii) Shares owned
by stockholders of Solta who perfect their appraisal rights under Section 262 of the DGCL, if any, will be converted into the right to receive an amount of cash equal to the Offer Price, less any applicable withholding taxes. All Shares that
are converted into the right to receive the Offer Price will be canceled and cease to exist. Promptly following consummation of the Merger, VPI intends to cause all Shares to be delisted from the NASDAQ Global Select Market and deregistered under
the Exchange Act.
On January 23, 2014, Valeant issued a press release announcing the expiration and results of the Offer. The
full text of the press release is attached as Exhibit (a)(5)(D) to the Schedule TO and is incorporated herein by reference.”
Item 12 of the Schedule TO is hereby amended and supplemented to add the
following exhibit:
(a)(5)(D) Press Release issued by Valeant Pharmaceuticals International, Inc. on January 23, 2014.
2
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.
Dated: January 23, 2014
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| SAPPHIRE SUBSIDIARY CORP. |
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| By: |
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/s/ Robert Chai-Onn |
| Name: Robert Chai-Onn |
| Title: Secretary |
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| VALEANT PHARMACEUTICALS INTERNATIONAL |
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| By: |
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/s/ Robert Chai-Onn |
| Name: Robert Chai-Onn |
| Title: Executive Vice President, General Counsel and Corporate Secretary |
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| VALEANT PHARMACEUTICALS INTERNATIONAL, INC. |
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| By: |
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/s/ Robert Chai-Onn |
| Name: Robert Chai-Onn |
| Title: Executive Vice President, General Counsel, Corporate Secretary and Corporate Business
Development |
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EXHIBIT INDEX
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| (a)(1)(A) |
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Offer to Purchase, dated December 23, 2013. * |
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| (a)(1)(B) |
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Form of Letter of Transmittal. * |
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| (a)(1)(C) |
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Form of Notice of Guaranteed Delivery. * |
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| (a)(1)(D) |
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. * |
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| (a)(1)(E) |
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Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. * |
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| (a)(1)(F) |
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Form of Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification), including instructions for completing the form. * |
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| (a)(2) |
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Not applicable. |
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| (a)(3) |
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Not applicable. |
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| (a)(4) |
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Not applicable. |
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| (a)(5)(A) |
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Joint Press Release issued by Valeant and Solta on December 16, 2013, originally filed as Exhibit (a)(5)(A) to the Tender Offer Statement on Schedule TO–C filed by the Purchaser, VPI and Valeant with the Securities and Exchange
Commission on December 17, 2013, which is incorporated by reference herein. |
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| (a)(5)(B) |
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Form of Summary Advertisement. * |
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| (a)(5)(C) |
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Press Release issued by Valeant Pharmaceuticals International, Inc. on January 15, 2014.** |
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| (a)(5)(D) |
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Press Release issued by Valeant Pharmaceuticals International, Inc. on January 23, 2014. |
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| (b)(1) |
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Third Amended and Restated Credit and Guaranty Agreement, dated as of February 13, 2012, among Valeant, certain subsidiaries of Valeant as Guarantors, each of the lenders named therein, J.P. Morgan Securities LLC, Goldman Sachs
Lending Partners LLC (“GSLP”) and Morgan Stanley Senior Funding, Inc. (“Morgan Stanley”), as Joint Lead Arrangers and Joint Bookrunners, JPMorgan Chase Bank, N.A. (“JPMorgan”) and Morgan Stanley, as Co-Syndication
Agents, JPMorgan, as Issuing Bank, GSLP, as Administrative Agent and Collateral Agent, and the other agents party thereto (the “Third Amended and Restated Credit and Guaranty Agreement of Valeant Pharmaceuticals International, Inc.”),
originally filed as Exhibit 10.1 to Valeant’s Current Report on Form 8-K filed on February 17, 2012, which is incorporated by reference herein. |
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| (b)(2) |
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Amendment No. 1, dated March 6, 2012, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.1 to Valeant’s Quarterly Report on Form 10-Q filed on November 5, 2012, which is
incorporated by reference herein. |
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| (b)(3) |
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Amendment No. 2, dated September 10, 2012, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.2 to Valeant’s Quarterly Report on Form 10-Q filed on November 5, 2012, which
is incorporated by reference herein. |
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| (b)(4) |
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Amendment No. 3, dated January 24, 2013, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.25 to Valeant’s Annual Report on Form 10-K filed on February 28, 2012, which is
incorporated by reference herein. |
4
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| (b)(5) |
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Amendment No. 4, dated February 21, 2013, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.26 to Valeant’s Annual Report on Form 10-K filed on February 28,
2012, which is incorporated by reference herein. |
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| (b)(6) |
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Amendment No. 5, dated as of June 6, 2013, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.3 to Valeant’s Quarterly Report on Form 10-Q filed on August 8, 2013, which
is incorporated by reference herein. |
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| (b)(7) |
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Amendment No. 6, dated June 26, 2013, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.4 to Valeant’s Quarterly Report on Form 10-Q filed on August 8, 2013, which is
incorporated by reference herein. |
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| (b)(8) |
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Amendment No. 7, dated September 17, 2013, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.3 to Valeant’s Quarterly Report on Form 10-Q filed on November 1, 2013, which
is incorporated by reference herein. |
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| (b)(9) |
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Joinder Agreement, dated June 14, 2012, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.1 to Valeant’s Current Report on Form 8-K filed on June 15, 2012, which is
incorporated by reference herein. |
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| (b)(10) |
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Joinder Agreement, dated July 9, 2012, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.2 to Valeant’s Quarterly Report on Form 10-Q filed on August 3, 2012, which is
incorporated by reference herein. |
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| (b)(11) |
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Joinder Agreement, dated as of September 11, 2012, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.3 to Valeant’s Quarterly Report on Form 10-Q filed on November 5,
2012, which is incorporated by reference herein. |
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| (b)(12) |
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Joinder Agreement, dated as of October 2, 2012, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.1 to Valeant’s Current Report on Form 8-K filed on October 9, 2012,
which is incorporated by reference herein. |
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| (b)(13) |
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Joinder Agreement, dated as of December 11, 2012, to the Third Amended and Restated Credit and Guaranty Agreement of Valeant, originally filed as Exhibit 10.31 to Valeant’s Annual Report on Form 10-K filed on February 28, 2012,
which is incorporated by reference herein. |
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| (d)(1) |
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Agreement and Plan of Merger, dated as of December 15, 2013, by and among VPI, the Purchaser, Valeant and Solta, originally filed as Exhibit 2.1 to Solta’s Current Report on Form 8–K filed with the Securities and Exchange
Commission on December 17, 2013, which is incorporated by reference herein. |
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| (d)(2) |
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Tender Agreement, dated as of December 15, 2013, by and among VPI, the Purchaser and Harold L. Covert. * |
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| (d)(3) |
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Tender Agreement, dated as of December 15, 2013, by and among VPI, the Purchaser and H. Daniel Ferrari. * |
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| (d)(4) |
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Tender Agreement, dated as of December 15, 2013, by and among VPI, the Purchaser and John Glenn. * |
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| (d)(5) |
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Tender Agreement, dated as of December 15, 2013, by and among VPI, the Purchaser and Linda Graebner. * |
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| (e)(6) |
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Tender Agreement, dated as of December 15, 2013, by and among VPI, the Purchaser and David Holthe. * |
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| (d)(7) |
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Tender Agreement, dated as of December 15, 2013, by and among VPI, the Purchaser and Inlign CP III, LLC. * |
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| (d)(8) |
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Tender Agreement, dated as of December 15, 2013, by and among VPI, the Purchaser and Cathy L. McCarthy. * |
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| (d)(9) |
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Tender Agreement, dated as of December 15, 2013, by and among VPI, the Purchaser and Jeff Nardoci. * |
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| (d)(10) |
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Tender Agreement, dated as of December 15, 2013, by and among VPI, the Purchaser and Mark M. Sieczkarek. * |
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| (d)(11) |
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Tender Agreement, dated as of December 15, 2013, by and among VPI, the Purchaser and Eric Stang. * |
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| (d)(12) |
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Confidentiality Agreement, dated as of July 7, 2012, between Valeant and Solta. * |
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| (d)(13) |
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Extension of Confidentiality Agreement, dated as of October 31, 2013, between Valeant and Solta. * |
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| (g) |
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Not applicable. |
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| (h) |
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Not applicable. |
| * |
Previously filed with the Tender Offer Statement on Schedule TO filed by the Purchaser, VPI and Valeant with the Securities and Exchange Commission on December 23, 2013. |
| ** |
Previously filed with the amendment to the Tender Offer Statement on Schedule TO filed by the Purchaser, VPI and Valeant with the Securities and Exchange Commission on January 15, 2013. |
6
