SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO § 240.13d-1(a)
AND AMENDMENTS THERETO FILED PURSUANT TO § 240.13d-2(a)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 6)*
Allergan, Inc.
(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE
(Title of Class of Securities)
018490102
(CUSIP Number)
Valeant Pharmaceuticals International, Inc.
Robert R. Chai-Onn
2150 St. Elzéar Blvd. West
Laval, Quebec
Canada, H7L 4A8
(514) 744-6792
With a copy to:
Alison S. Ressler
Sullivan & Cromwell LLP
1888 Century Park East
Los Angeles, California 90067-1725
(310) 712-6600
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
July 15, 2014
(Date of Event which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this Schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.
Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.
* | The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 018490102 |
1. | NAME OF REPORTING PERSON
Valeant Pharmaceuticals International, Inc. | |||||
2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions): (a) x (b) ¨
| |||||
3. | SEC Use Only
| |||||
4. | SOURCE OF FUNDS (see instructions)
AF, WC | |||||
5. | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6. | CITIZENSHIP OR PLACE OF ORGANIZATION
British Columbia, Canada | |||||
Number Of Shares Beneficially Owned By Each Reporting Person With
|
7. | SOLE VOTING POWER
100 | ||||
8. | SHARED VOTING POWER
28,878,538 | |||||
9. | SOLE DISPOSITIVE POWER
100 | |||||
10. | SHARED DISPOSITIVE POWER
597,431 | |||||
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
28,878,638 | |||||
12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨
| |||||
13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.7% 1 | |||||
14. | TYPE OF REPORTING PERSON (see instructions)
HC |
(1) | This calculation is based on 296,910,449 shares of Common Stock, par value $0.01 per share (the Common Stock), of Allergan, Inc. (the Issuer) outstanding as of June 30, 2014 as reported in the Issuers Preliminary Proxy Statement on Schedule 14A filed on July 15, 2014. |
CUSIP No. 018490102 |
1. | NAME OF REPORTING PERSON
Valeant Pharmaceuticals International | |||||
2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions): (a) x (b) ¨
| |||||
3. | SEC Use Only
| |||||
4. | SOURCE OF FUNDS (see instructions)
WC | |||||
5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨
| |||||
6. | CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware | |||||
Number Of Shares Beneficially Owned By Each Reporting Person With
|
7. | SOLE VOTING POWER
-0- | ||||
8. | SHARED VOTING POWER
28,878,538 | |||||
9. | SOLE DISPOSITIVE POWER
-0- | |||||
10. | SHARED DISPOSITIVE POWER
597,431 | |||||
11. |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
28,878,638 | |||||
12. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ¨
| |||||
13. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.7% 1 | |||||
14. | TYPE OF REPORTING PERSON (see instructions)
CO |
(1) | This calculation is based on 296,910,449 shares of Common Stock, par value $0.01 per share (the Common Stock), of Allergan, Inc. (the Issuer) outstanding as of June 30, 2014 as reported in the Issuers Preliminary Proxy Statement on Schedule 14A filed on July 15, 2014. |
This Amendment No. 6 relates to the Schedule 13D filed on April 21, 2014, as amended prior to the date of this Amendment No. 6 (as so amended, the Original 13D), by Valeant Pharmaceuticals International, Inc., a corporation continued under the laws of British Columbia (Valeant), and Valeant Pharmaceuticals International, a Delaware corporation and a wholly owned subsidiary of Valeant (Valeant USA and, together with Valeant, the Reporting Persons), relating to common shares, par value $0.01 (the Common Stock), of Allergan, Inc., a Delaware corporation (the Issuer). Capitalized terms used but not defined herein shall have the meaning set forth in the Original 13D.
ITEM 6 | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
Item 6 of the Original 13D is hereby amended and supplemented by adding the following information:
On July 15, 2014, Valeant and Pershing Square entered into an indemnification letter agreement relating to Valeants previously announced exchange offer. The letter agreement is filed as Exhibit 99.1 and is incorporated by reference into this Item 6 as if restated in full.
ITEM 7 | Material to be Filed as Exhibits |
Exhibit |
Document Description | |
99.1 | Letter Agreement between Valeant Pharmaceuticals International, Inc. and Pershing Square Capital Management, L.P., dated July 15, 2014. |
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief, we certify that the information set forth in this amendment is true, complete and correct.
Dated: July 17, 2014
VALEANT PHARMACEUTICALS INTERNATIONAL, INC. | ||
By: | /s/ Robert R. Chai-Onn | |
Name: | Robert R. Chai-Onn | |
Title: | Executive Vice President, General Counsel and Chief Legal Officer, Head of Corporate and Business Development | |
VALEANT PHARMACEUTICALS INTERNATIONAL | ||
By: | /s/ Robert R. Chai-Onn | |
Name: | Robert R. Chai-Onn | |
Title: | Executive Vice President, General Counsel and Corporate Secretary |
EXHIBIT INDEX
Exhibit |
Document Description | |
99.1 | Letter Agreement between Valeant Pharmaceuticals International, Inc. and Pershing Square Capital Management, L.P., dated July 15, 2014. |
Exhibit 99.1
July 15, 2014
Valeant Pharmaceuticals International, Inc.
2150 St. Elzéar Blvd. West
Laval, Quebec
Canada, H7L 4A8
Ladies and Gentlemen:
Reference is made to (i) that certain letter agreement, dated as of February 9, 2014 (the Confidentiality Agreement), between Pershing Square Capital Management, L.P. (together with its controlled affiliates, and including any successor thereto, Pershing Square) and Valeant Pharmaceuticals International, Inc. (together with its controlled affiliates, and including any successor thereto, Valeant or the Company); (ii) that certain letter agreement, dated as of February 25, 2014 (the February 25 Letter Agreement), between Pershing Square and Valeant executed in connection with a potential transaction related to Allergan, Inc. (Allergan); (iii) that certain letter agreement, dated as of May 30, 2014 (the May 30 Letter Agreement), between Pershing Square and Valeant amending the terms of the February 25 Letter Agreement; (iv) that certain offer to exchange, forming part of the registration statement on Form S-4 filed by Valeant with the Securities and Exchange Commission (SEC) on June 18, 2014, and any amendments thereto (the Offer to Exchange); and (v) that certain Tender Offer Statement on Schedule TO filed by Valeant and AGMS, Inc., a wholly owned subsidiary of Valeant, and PS Fund 1, LLC, an investment fund managed by Pershing Square (PS Fund 1), with SEC on June 18, 2014, and any amendments thereto (the Schedule TO). PS Fund 1 is considered a co-bidder in the Offer (as defined below). Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the Offer to Exchange and Schedule TO.
1. | Covenant to Perform |
Notwithstanding anything set forth in the Confidentiality Agreement to the contrary, in the event that all conditions to the consummation of the offer set forth in the Offer to Exchange and Schedule TO (the Offer) have been satisfied or waived, as applicable, and Valeant accepts for exchange the shares of common stock, par value $0.01 per share (including the associated rights to purchase preferred stock), of Allergan tendered into the Offer, Valeant, on behalf of itself, its subsidiaries, and its affiliates (collectively, the Valeant Parties), hereby covenants and agrees to fully perform and discharge any and all obligations and agreements, as to payment or otherwise, of the Valeant Parties in accordance with the terms of the Offer to Exchange, the Schedule TO, and each other document relating to the transactions set forth therein.
2. | Indemnification of Losses |
The Valeant Parties shall indemnify and hold harmless PS Fund 1 and each of its affiliates and its and their partners, general partners, employees, officers, directors, managers, and subsidiaries and investment funds managed by PS Fund 1 and its affiliates (collectively, the Indemnitees) to the fullest extent permitted by law from any damages, losses, taxes, liabilities, obligations, actions, proceedings, claims of any kind, interest, costs, or expenses (including reasonable attorneys fees and expenses, and other costs or expenses incurred in the collection of any judgments with respect to actions, proceedings, or claims) (collectively, hereinafter Losses), including all interest, assessments, and other charges paid or payable in connection with or in respect of such Losses, but excluding all Losses sustained or incurred in the capacity of a stockholder of Allergan, to the extent such Losses are finally determined by a court of competent jurisdiction, in the case of a third party claim brought against the Indemnitees, or by an
arbitrator pursuant to Section 5 below, in the case of a direct claim by the Indemnitees against Valeant, to have arisen out of the breach or non-performance by the Valeant Parties of their respective obligations to pay for shares tendered into the Offer; it being understood that the indemnity in this Section 2 is provided to PS Fund 1 solely with respect to its status as a co-bidder in the Offer and neither PS Fund 1 nor any other Indemnitee shall be entitled to indemnification hereunder in respect of any Losses sustained or incurred in the capacity of a stockholder of Allergan. Payment of such Losses shall be made by Valeant (i) in the case of a third party claim brought against the Indemnitees, no later than two business days prior to the date on which the Indemnitees are required by any legal or judicial process to make payment under such final determination; provided that the Indemnitees shall have provided written notice to Valeant of such final determination, together with a copy of such final determination, within one business day after such final determination is made or entered, and (ii) in the case of a direct claim by the Indemnitees against Valeant, in accordance with the arbitrators award. The indemnification provided for herein is in addition to, and not in lieu of, any other rights to indemnification that any of the Indemnitees may have including, but not limited to, those provided for in that certain Limited Liability Company Agreement of PS Fund 1, LLC, dated April 3, 2014. Notwithstanding anything to the contrary in this letter agreement, the parties hereby acknowledge that the indemnification rights under this Section 2 shall be the Indemnitees sole and exclusive remedy for monetary damages under this letter agreement.
3. | Termination |
This letter agreement, and the Valeant Parties obligations hereunder, will terminate automatically upon the earliest to occur of: (i) the consummation by the Valeant Parties of the Offer and the second step merger as set forth in the Offer to Exchange, and (ii) the termination or withdrawal of the Offer by Valeant in accordance with the terms of the Offer to Exchange.
4. | Specific Performance |
Each of the parties hereto acknowledges and agrees that irreparable injury to the other party hereto would occur in the event that any of the provisions of this letter agreement were not performed in accordance with their specific terms or were otherwise breached and that money damages are not an adequate remedy for any such breach or threatened breach. It is accordingly agreed that each of the parties hereby agrees to the seeking of an injunction or injunctions or other equitable relief to prevent actual or threatened breaches of any of the terms or provisions of this letter agreement, without proof of actual damages, and to enforce specifically the performance by such first party under this Agreement, and each of the parties hereby agrees to waive the defense in any such suit that the other party has an adequate remedy at law and to interpose no opposition, legal or otherwise, as to the propriety of injunction or specific performance as a remedy, and hereby agrees to waive any requirement to secure or post any bond, security or any other undertaking in connection with obtaining such relief. The equitable remedies described in this Section 4 shall be in addition to, and not in lieu of, any other remedies at law or in equity that the parties may elect to pursue. The parties hereto hereby acknowledge that it is their intent to expedite the resolution of any dispute, controversy, or claim hereunder and that neither party shall oppose any motion for any expedited discovery or expedited hearing in connection with any alleged breach of this letter agreement.
5. | Arbitration |
Notwithstanding Section 5(e) of the Confidentiality Agreement, any controversy, claim, or dispute related to this letter agreement or its breach, termination, enforcement, interpretation or validity thereof shall be handled exclusively through the following procedure. The party bringing an action (Claimant) will serve a notice of arbitration upon the opposing party. The date of receipt of the notice of arbitration shall commence the action. The opposing partys notice of defense shall be served upon the
Claimant within two business days after it receives the notice of arbitration. The failure to serve a timely notice of defense shall serve as a definitive admission of liability with the same force and effect as an arbitrators determination. The arbitration shall be conducted by one (1) arbitrator selected from the proposed arbitrators listed on Schedule A. The parties accept all four individuals as candidates to serve as arbitrator and will select the arbitrator to hear the dispute based on availability in the order of priority listed in Schedule A. If none of the individuals listed in Schedule A are available, any other former judge of the Delaware Supreme Court or Delaware Court of Chancery shall be selected based on availability and the date on which such former judge most recently retired from the court. The arbitrator shall issue an award without a decision within two business days of receiving the notice of defense. No independent discovery will be taken. The arbitrators determination shall be binding, final, and non-appealable on all parties. Judgment on the award may be entered in any court of competent jurisdiction. Each party shall bear its own expenses, but those related to the compensation of the arbitrator shall be borne equally.
6. | Miscellaneous |
This letter agreement shall become effective as of the date hereof. This letter agreement shall not constitute an amendment, modification or waiver of any provision of the Confidentiality Agreement not expressly referred to herein. Except as expressly provided in this letter agreement, the provisions of the Confidentiality Agreement are and shall remain in full force and effect. Sections 5(a), (b), (c), (d), (f), (g), (h), (i), and (j) of the Confidentiality Agreement shall apply to this letter agreement, mutatis mutandis.
[Remainder of page intentionally left blank]
If you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, whereupon this letter agreement will constitute our agreement with respect to the subject matter hereof.
Sincerely, | ||
Pershing Square Capital Management, L.P. | ||
By: | PS Management GP, LLC, its General Partner | |
By: | /s/ William A. Ackman | |
William A. Ackman, Managing Member |
CONFIRMED AND AGREED TO: | ||
Valeant Pharmaceuticals International, Inc. | ||
By: | /s/ J. Michael Pearson | |
J. Michael Pearson, Chief Executive Officer |
SCHEDULE A
William Chandler III, Partner, Wilson Sonsini Goodrich & Rosati
Stephen P. Lamb, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP
Myron T. Steele, Partner, Potter Anderson Corroon, LLP
Justice Jack B. Jacobs