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. 5)
SAGENT
PHARMACEUTICALS, INC.
(Name of Subject Company)
SHEPARD VISION, INC.
(Name of Offeror)
A
Wholly-Owned Subsidiary of
NICHI-IKO PHARMACEUTICAL CO., LTD.
(Name of Offerors)
(Names
of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock,
$0.01 par value per share
(Title of Class of Securities)
786692103
(CUSIP Number
of Class of Securities)
Mr. Kenji Matsuyama
Senior Director
Nichi-Iko Pharmaceutical Co., Ltd.
5-4 Nihonbashi-Honcho 1-chome
Chuo-ku, Tokyo, Japan 103-0023
+81-3-3276-0215
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
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Masakazu Iwakura
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Toby S. Myerson
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Nishimura & Asahi
Otemon Tower, 1-1-2 Otemachi,
Chiyoda-ku, Tokyo, 100-8124, Japan
+81-3-6250-6200
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Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
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CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$734,695,947
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$73,983.90
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*
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Estimated solely for purposes of calculating the filing fee. The transaction valuation was calculated by adding (i) 33,088,222 outstanding shares of common stock of Sagent Pharmaceuticals, Inc. (Sagent), par
value $0.01 per share (the Shares), multiplied by the offer price of $21.75 per Share, (ii) 1,849,185 Shares issuable pursuant to outstanding options with an exercise price less than the offer price of $21.75 per Share, multiplied by
$5.90, which is the offer price of $21.75 per Share minus the weighted average exercise price for such options of $15.85 per Share, and (iii) 189,284 restricted stock units multiplied by the offer price of $21.75 per Share. The calculation of the
filing fee is based on information provided by Sagent as of July 26, 2016.
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**
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The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for fiscal year 2016, issued August 27, 2015 by multiplying the
transaction value by .0001007.
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x
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Check 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: $73,983.90
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Filing Party: Nichi-Iko Pharmaceutical Co., Ltd. and Shepard Vision, Inc.
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Form or Registration No.: Schedule TO
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Date Filed: August 1, 2016
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¨
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
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x
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third-party tender offer subject to Rule 14d-1.
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¨
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issuer tender offer subject to Rule 13e-4.
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¨
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going-private transaction subject to Rule 13e-3.
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¨
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final
amendment reporting the results of the tender offer.
¨
This Amendment No. 5 (this Amendment) amends and supplements the Tender Offer Statement on Schedule
TO (as amended and together with any subsequent amendments and supplements thereto, the Schedule TO), filed with the Securities and Exchange Commission on August 1, 2016 by Shepard Vision, Inc., a Delaware corporation
(Purchaser) and a wholly-owned subsidiary of Nichi-Iko Pharmaceutical Co., Ltd., a joint stock corporation organized under the laws of Japan (Parent). The Schedule TO relates to the offer by Purchaser to purchase all of the
outstanding shares of common stock, $0.01 par value per share (the Shares), of Sagent Pharmaceuticals, Inc., a Delaware corporation (Sagent), at a price of $21.75 per Share (the Offer Price) net to the holder in
cash, without interest, subject to any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated August 1, 2016 (together with any amendments and supplements thereto, the Offer to
Purchase), and in the related letter of transmittal (together with any amendments and supplements thereto, the Letter of Transmittal), copies of which are attached hereto as Exhibits (a)(1)(i) and (a)(1)(ii), respectively, which
Offer to Purchase and Letter of Transmittal collectively constitute the Offer.
The information in the Offer to Purchase and the Letter of
Transmittal is incorporated in this Amendment 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. Capitalized terms used and
not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Offer to Purchase or in the Schedule TO.
This Amendment is
being filed to amend and supplement Items 1, 3, 7 and 12 as reflected below.
Amendments to the Offer to Purchase
Item 1.
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Summary Term Sheet
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Item 1 of the Schedule TO is hereby amended and supplemented as
follows:
The information set forth under Summary Term Sheet Do you have the financial resources to pay for all Shares? of the Offer to
Purchase is hereby amended and restated in its entirety as follows:
Yes. The estimated total amount of funds required by Parent and Purchaser to purchase
all of the outstanding Shares in the Offer and to complete the Transactions, including the payment of fees and expenses in connection with the Offer, will be approximately $750 million. We will fund such cash requirements with proceeds received from
borrowings under a Japanese Yen (JPY) and
dollar-denominated
credit facility (the Facility) of JPY80 billion (the approximate equivalent of $798 million as of August 19, 2016) from
Sumitomo Mitsui Banking Corporation (SMBC), the terms of which are set forth in the Loan Agreement (as defined below), and we may also use Parents available cash. The Facility was entered into by Parent and SMBC on August 22, 2016,
pursuant to (and supersedes) a Commitment Letter (the Commitment Letter) that Parent had obtained from SMBC on June 23, 2016, pursuant to which SMBC committed to provide to Parent a JPY65 billion credit facility for the purposes of
financing the Transactions and paying related fees and expenses. See Section 9 Source and Amount of Funds.
Item 3.
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Identity and Background of Filing Person.
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Item 3 of the Schedule TO and the
disclosure under Annex A Certain Information Regarding the Directors, Managers and Executive Officers of Parent and Purchaser of the Offer to Purchase are hereby amended and supplemented by replacing the paragraph under the description
of current and past occupations for Taizan Kawakami in Annex A of the Offer to Purchase on page A-2 with the following text:
Mr. Kawakami has
served as a senior director of the Parent, responsible for Special Assignments, for the past five years. He also serves as President of EMI, Inc., a manufacturer and integrator of foundry equipment for core making, green sand molding, no bake
molding, and matchplate molding, with business address at 2-1-1 Edobori, Nishi-ku, Osaka-shi, Japan.
Item 3 of the Schedule TO and the
disclosure under Annex A Certain Information Regarding the Directors, Managers and Executive Officers of Parent and Purchaser of the Offer to Purchase are hereby amended and supplemented by replacing the second and third paragraphs under
the description of current and past occupations for Shigeo Takagi in Annex A of the Offer to Purchase on page A-3 with the following text:
Mr.
Takagi also serves as an Outside Auditor of Seiren Co. Ltd, a fiber manufacturing company based in Fukui, Fukui Prefecture, Japan, a with business address at 1-10-1 Keya, Fukui 918-8560, Japan.
He is also an Outside Auditor at Kawada Technologies, Inc., a company whose operations are the strategic implementation and management of business activities
for Kawada Group companies, with business address at 4610 Nojima, Nanto-shi, Toyama 939-1593, Japan.
Item 7.
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Source and Amount of Funds.
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The Offer to Purchase and Item 7 of the Schedule TO, to the extent
such item incorporates by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as follows:
The section
entitled 9. Source and Amount of Funds. is amended and supplemented as follows:
The second and third paragraphs under the section entitled
9. Source and Amount of Funds. are amended and restated in their entirety to read as follows:
On August 22, 2016, Parent, as borrower,
entered into a loan agreement with SMBC, as lender (the Loan Agreement), pursuant to which Parent can, commencing August 24, 2016, borrow individual yen and dollar-denominated loans up to a maximum amount of JPY80 billion (the
Facility). The Facility matures on August 24, 2017 (the Maturity Date), and amounts borrowed under the Facility are due and payable on that date. The amounts borrowed under the Facility will be used to pay the cash
consideration in respect of the Transactions, and related fees and expenses, and to repay Sagents existing debt. The Facility was entered into pursuant to (and supersedes) a Commitment Letter (the Commitment Letter) that Parent had
obtained from SMBC on June 23, 2016, pursuant to which SMBC committed to provide to Parent a JPY65 billion credit facility billion for the purposes of financing the Transactions and paying related fees and expenses.
Amounts borrowed under the Loan Agreement will bear interest at a rate equal to the applicable base rate (in the case of yen-denominated loans, subject to a
floor of 0%) plus a spread (0.15% per annum in the case of yen-denominated loans and 0.60% per annum in the case of dollar-denominated loans). The interest is payable monthly in arrears.
In addition, Parent is required to pay to SMBC a commitment fee at the rate of 0.05% per annum, payable monthly until the earlier of August 24, 2017 or the
End Date (as defined in the Merger Agreement).
The Loan Agreement contains certain affirmative and negative covenants. The Loan Agreement also contains
certain events, upon the occurrence of which Parents obligations under the Loan Agreement will be accelerated (either automatically or upon notice by SMBC). Automatic events of acceleration include certain bankruptcy events relating to
Parent. Events of acceleration requiring notice by SMBC (which are in some cases subject to certain exceptions, thresholds and grace periods) include, but not limited to, nonpayment of monetary obligations under the Loan Agreement, material
breaches of covenants, material breaches of representations and warranties, and failure to perform obligations under other financial indebtedness.
The
funding under the Loan Agreement is subject to customary condition precedents, including, without limitation:
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submission of loan applications in accordance with the terms of the Loan Agreement;
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the delivery of certain board minutes approving the Merger Agreement, a certified copy of the Merger Agreement and a certificate of satisfaction of conditions precedent to the loan disbursement;
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the Offer being likely to be settled under the terms specified in the Acquisition;
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no Merger related agreement having terminated without SMBCs consent (such consent not to be unreasonably withheld or delayed), and no material change or revision having been made to any of the Merger-related
agreements;
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no Company Material Adverse Effect (as defined in the Merger Agreement) having occurred;
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Sagents Board not having expressed an opposing opinion recommending that Sagents shareholders not tender their shares in the Offer; and
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the accuracy of certain specified representations and warranties in the Loan Agreement.
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Parent may make
voluntary prepayments of the amounts borrowed under the Facility only upon giving written notice to SMBC of 10 Japanese business days. The amount of prepayment shall be the amount of the then-outstanding principal amount borrowed, or a minimum of
JPY100 million and integral multiples of JPY100 million (in the case of yen-denominated loans) or $1 million and integral multiples of $1 million (in the case of dollar-denominated loans). Parent is also required to pay accrued interest and break
costs in relation to such prepayments.
The foregoing summaries of the Commitment Letter and the Loan Agreement do not purport to be complete and are
subject to, and qualified in their entirety by, reference to the full text of the Commitment Letter, a copy of which is filed as Exhibit (b)(1) to the Schedule TO, and the full text of the Loan Agreement, a copy of which is filed as Exhibit
(b)(2) to the Schedule TO, both of which are incorporated herein by reference.
Item 12 of the Schedule TO is hereby amended and supplemented by adding
the following exhibit:
(b)(2) Loan Agreement, dated as of August 22, 2016, among Parent, as borrower, and SMBC as lender*
SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certifies that the information set forth in this statement
is true, complete and correct.
Date: August 22, 2016
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Shepard Vision, Inc.
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By:
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/s/ Kenji Matsuyama
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Name:
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KENJI MATSUYAMA
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Title:
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President
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Nichi-Iko Pharmaceutical Co., Ltd.
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By:
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/s/ Yuichi Tamura
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Name:
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YUICHI TAMURA
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Title:
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President & CEO
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Exhibit
No.
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Description
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(a)(1)(i)
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Offer to Purchase, dated as of August 1, 2016*
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(a)(1)(ii)
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Form of Letter of Transmittal (including Internal Revenue Service Form W-9)*
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(a)(1)(iii)
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Form of Notice of Guaranteed Delivery*
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(a)(1)(iv)
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*
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(a)(1)(v)
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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)(vi)
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Summary Advertisement, as published in
The New York Times
on August 1, 2016*
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(a)(5)(i)
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Joint Press Release issued by Parent and Sagent, dated July 11, 2016 (incorporated by reference to the Schedule TO-C filed by Parent on July 11, 2016)
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(a)(5)(ii)
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Regulatory Press Release issued by Parent, dated July 11, 2016 (incorporated by reference to the Schedule TO-C filed by Parent on July 11, 2016)
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(a)(5)(iii)
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Letter sent by CEO of Parent to employees of Sagent issued by Parent, dated July 12, 2016, (incorporated by reference to the Schedule TO-C filed by Parent on July 12, 2016)
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(a)(5)(iv)
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IR Presentation issued by Parent, dated July 11, 2016, (incorporated by reference to the Schedule TO-C filed by Parent on July 11, 2016)
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(a)(5)(v)
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Press Release announcing commencement of the Offer issued by Parent, dated August 1, 2016*
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(a)(5)(vi)
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Regulatory Press Release issued by Parent on the Tokyo Stock Exchange (English Translation), dated August 2, 2016*
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(a)(5)(vii)
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Press Release issued by Parent, dated August 9, 2016*
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(b)(1)
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Commitment Letter, dated as of June 23, 2016, among Parent and SMBC*
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(b)(2)
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Loan Agreement, dated as of August 22, 2016, among Parent, as borrower, and SMBC as lender
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(c)
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Not applicable
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(d)(1)
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Agreement and Plan of Merger, dated as of July 10, 2016, among Sagent, Parent and Purchaser (incorporated by reference to the Current Report on Form 8-K filed by Parent on July 11, 2016)
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(d)(2)
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Form of Tender and Support Agreement, dated as of July 10, 2016, among Parent, Purchaser and certain stockholders of Sagent*
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(d)(3)
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Confidentiality Agreement, dated April 30, 2016, by and between Parent and Sagent*
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(e)
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Not applicable
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(f)
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Not applicable
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(g)
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Not applicable
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(h)
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Not applicable
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