- Amended tender offer statement by Third Party (SC TO-T/A)
May 29 2009 - 12:00PM
Edgar (US Regulatory)
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)
IDM
PHARMA, INC.
(Name of Subject
Company (Issuer))
TAKEDA
PHARMACEUTICAL COMPANY LIMITED
TAKEDA
AMERICA HOLDINGS, INC.
JADE
SUBSIDIARY CORPORATION
(Names of Filing
Persons (Offerors))
Common
Stock, par value $0.01
(Title of Class of Securities)
449394105
(CUSIP Number of Class of
Securities)
Laurie B.
Keating
Takeda
America Holdings, Inc.
40
Landsdowne Street
Cambridge,
MA 02139
(617)
679-7000
(Name, Address and
Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of Filing Persons)
with copies to:
David E.
Redlick
Graham
Robinson
Wilmer
Cutler Pickering Hale and Dorr LLP
60 State
Street
Boston, Massachusetts 02109
(617) 526-6000
CALCULATION
OF FILING FEE
Transaction
valuation*
|
|
Amount
of filing fee**
|
$79,289,850
|
|
$4,425
|
*
Estimated for purposes of calculating the
amount of the filing fee only, in accordance with Rule 0-11(d) under
the U.S. Securities Exchange Act of 1934, as amended (the Exchange Act). The transaction valuation was calculated by
multiplying (a) the closing cash payment of $2.64 per share by (b) the
number of shares of common stock, par value $0.01 per share (Shares), of IDM
Pharma, Inc. (IDM) outstanding on a fully diluted basis as of May 18,
2009 as represented by IDM, consisting of (x) 25,278,599 Shares issued and
outstanding, (y) 1,378,023 Shares issuable upon exercise of outstanding
options and (z) 3,377,412 Shares issuable upon exercise of outstanding
warrants.
**
The amount of the filing fee was
calculated in accordance with Rule 0-11(d) of the Exchange Act by
multiplying the transaction valuation by 0.0000558.
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:
|
$4,425
|
|
Filing Party:
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Takeda Pharmaceutical Company
Limited, Takeda America Holdings, Inc. and Jade Subsidiary Corporation
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Form or
Registration No.:
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Schedule TO
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Date Filed:
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May 26, 2009
|
o
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.
o
issuer tender offer subject to Rule 13e-4.
o
going-private transaction subject
to Rule 13e-3.
o
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:
o
If applicable, check the
appropriate box(es) below to designate the appropriate rule provision(s) relied
upon:
o
Rule 13e-4(i) (Cross-Border
Issuer Tender Offer)
o
Rule 14d-1(d) (Cross-Border
Third-Party Tender Offer)
This Amendment No. 1 (Amendment No. 1)
amends and supplements the Tender Offer Statement on Schedule TO (the Schedule
TO) originally filed with the U.S. Securities and Exchange Commission on May 26,
2009 by Jade Subsidiary Corporation (Offeror), a Delaware corporation and
wholly owned subsidiary of Takeda America Holdings, Inc. (Takeda America),
which is a New York corporation and wholly owned subsidiary of Takeda
Pharmaceutical Company Limited, a corporation organized under the laws of
Japan, relating to the offer by Offeror to purchase all of the outstanding
shares of common stock, par value $0.01 per share (the Shares), of IDM Pharma, Inc.,
a Delaware corporation (IDM), at a price of $2.64 per Share, net to the
seller in cash (the Offer Price), upon the terms and subject to the
conditions set forth in the Offer to Purchase dated May 26, 2009 (the Offer
to Purchase) and in the related Letter of Transmittal (together with the Offer
to Purchase, the Offer). All
references to the Offer to Purchase, the Letter of Transmittal and the Offer
include any amendments or supplements to the Offer to Purchase and the Letter
of Transmittal, respectively. The Offer
Price will be subject to any required withholding of taxes, and no interest
will be paid thereon. The Offer is made
pursuant to an Agreement and Plan of Merger, dated as of May 18, 2009 (the
Merger Agreement), among Takeda America, Offeror and IDM.
All capitalized terms used in this Amendment No. 1
without definition have the meanings ascribed to them in the Schedule TO or the
Offer to Purchase.
The information in the Offer to Purchase and the related Letter of
Transmittal is incorporated in this Amendment No. 1 by reference to all of
the applicable items in the Schedule TO, except that such information is
amended and supplemented to the extent specifically provided in this Amendment No. 1.
Items 1
through 9 and Item 11.
Items
1 through 9 and Item 11 of the Schedule TO are hereby amended and supplemented
by adding the following text thereto:
As disclosed in the Tender Offer Statement on Schedule TO originally
filed with the U.S. Securities and Exchange Commission on May 26, 2009,
Richard Hartman and Bryan Burnett filed a lawsuit in the Superior Court of the
State of California, Orange County (Civil Action Case No 30-2009-00270784) on May 22,
2009 against IDM, each member of IDMs Board of Directors including its
President and Chief Executive Officer, Takeda America and us. A copy of the
Complaint is filed as Exhibit (a)(5)(E) to the Tender Offer Statement
on Schedule TO.
On May 27, 2009, the plaintiffs filed an Amended Complaint in the
Superior Court of the State of California, Orange County. The Amended Complaint alleges that (1) the
defendants breached their fiduciary duties, and/or aided and abetted the breach
of fiduciary duties, owed to IDM stockholders in connection with the Offer, (2) IDM
failed to disclose certain information to its stockholders in connection with
the Offer and (3) the consideration being offered pursuant to the Offer is
inadequate. The Amended Complaint seeks to be certified as a class action on
behalf of the public stockholders of IDM and seeks injunctive relief enjoining
the Offer, or, in the event the Offer has been consummated prior to the courts
entry of final judgment, rescinding the Offer or awarding rescissory
damages. The Amended Complaint also
seeks an accounting for all damages and an award of costs, including a
reasonable allowance for attorneys and experts fees and expenses. A copy of
the Amended Complaint is filed as Exhibit (a)(5)(F) hereto.
Item 12.
Exhibits.
Item
12 of the Schedule TO is hereby amended and supplemented by adding the
following exhibit:
(a)(5)(F)
Amended Complaint filed on May 27,
2009 in the Superior Court of the State of California, Orange County.
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:
May 29, 2009
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JADE
SUBSIDIARY CORPORATION
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By:
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/s/
Laurie B. Keating
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Name:
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Laurie
B. Keating
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Title:
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President
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TAKEDA
AMERICA HOLDINGS, INC.
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By:
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/s/
Laurie B. Keating
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Name:
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Laurie
B. Keating
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Title:
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Attorney-in-fact
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TAKEDA
PHARMACEUTICAL COMPANY LIMITED
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By:
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/s/
Laurie B. Keating
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Name:
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Laurie
B. Keating
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Title:
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Attorney-in-fact
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EXHIBIT INDEX
Exhibit
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No.
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*(a)(1)(A)
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Offer to Purchase, dated May 26, 2009.
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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 from The Altman Group to
Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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*(a)(1)(E)
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Form of Letter from Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees to Clients.
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*(a)(1)(F)
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Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
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*(a)(5)(A)
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Press Release jointly issued by Takeda
Pharmaceutical Company Limited and IDM Pharma, Inc. on May 18,
2009, announcing the execution of the Agreement and Plan of Merger among
Takeda America, Offeror and IDM (incorporated in this Schedule TO by
reference to the Schedule TO-C filed by Takeda America on May 18, 2009).
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*(a)(5)(B)
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Form of Summary Advertisement published in The
Wall Street Journal on May 26, 2009.
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*(a)(5)(C)
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Press Release issued by Takeda Pharmaceutical
Company Limited, dated May 26, 2009, announcing the commencement of the
Offer.
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*(a)(5)(D)
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Notice dated May 26, 2009 from IDM to Holders
of Stock Options under the IDM 1989 and 2000 Stock Option Plans.
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*(a)(5)(E)
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Complaint filed on May 22, 2009 in the Superior
Court of the State of California, Orange County.
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(a)(5)(F)
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Amended Complaint filed on May 27, 2009 in the
Superior Court of the State of California, Orange County.
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*(d)(1)
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Agreement and Plan of Merger, dated as of
May 18, 2009, among Takeda America, Offeror and IDM incorporated in this
Schedule TO by reference to the Current Report on Form 8-K filed by IDM
on May 18, 2009).
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*(d)(2)
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Confidentiality Agreement, dated as of
December 8, 2006, between Millennium Pharmaceuticals, Inc. and IDM
Pharma, Inc.
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*(d)(3)
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Stockholders Agreement, dated as of May 18,
2009, entered into between Takeda America and each of Micro Cap Partners,
L.P., Palo Alto Fund II, L.P., Palo Alto Healthcare Master Fund, L.P., Palo
Alto Healthcare Master Fund II, L.P., Palo Alto Small Cap Master Fund, L.P.,
UBTI Free, L.P., Medarex, Inc., Timothy P. Walbert, John P. McKearn,
Robert J. De Vaere, Jeffrey W. Sherman, Timothy C. Melkus, Michael G. Grey,
Robert Beck and Gregory J. Tibbitts (incorporated in this Schedule TO by
reference to the Current Report on Form 8-K filed by IDM on May 18,
2009).
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*
Previously filed.
Schedule 1
POWER OF ATTORNEY
KNOW ALL PERSONS BY
THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Laurie Bartlett Keating and
Jeannette Potts, and each of them, its true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for it and in its name, place, and stead, in any and all
capacities, to sign any and all filings, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission relating
to the tender offer for shares of common stock of IDM Pharma, Inc. or
subsequent merger of Jade Subsidiary Corporation with IDM Pharma, Inc., and hereby grants to each such
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or her substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Dated:
May 28, 2009
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TAKEDA
AMERICA HOLDINGS, INC.
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By:
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/s/
Iwaaki Taniguchi
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Name:
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Iwaaki
Taniguchi
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Title:
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President
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TAKEDA
PHARMACEUTICAL COMPANY LIMITED
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By:
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/s/ Hiroshi Shinha
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Name:
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Hiroshi
Shinha
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Title:
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Member
of the Board
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General
Manager, Legal Department
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