- Amended Statement of Ownership: Solicitation (SC 14D9/A)
24 June 2009 - 2:42AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
14D-9
(Rule 14d-101)
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities
Exchange Act of 1934
(Amendment No. 5)
IDM
PHARMA, INC.
(Name of Subject Company)
IDM
PHARMA, INC.
(Name of Person Filing Statement)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
449394105
(CUSIP Number of Class of Securities)
Timothy P. Walbert
President and Chief Executive Officer
IDM Pharma, Inc.
9 Parker, Suite 100
Irvine, CA 92618
(949) 470-4751
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of the Persons Filing Statement)
With copies to:
L. Kay Chandler, Esq.
COOLEY GODWARD KRONISH LLP
4401 Eastgate Mall
San Diego, CA 92121-9109
(858) 550-6000
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Barbara L. Borden, Esq.
COOLEY GODWARD KRONISH LLP
4401 Eastgate Mall
San Diego, CA 92121-9109
(858) 550-6000
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o
Check the box
if the filing relates solely to preliminary communications made before the
commencement of a tender offer.
This
Amendment No. 5 to the Schedule 14D-9 (this
Amendment
No. 5
) amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 filed with the
Securities and Exchange Commission (
SEC
) on May 26,
2009, as amended and supplemented by Amendment No. 1 to the Schedule 14D-9
filed with the SEC on May 29, 2009, Amendment No. 2 to the Schedule
14D-9 filed with the SEC on June 2, 2009, Amendment No. 3 to the
Schedule 14D-9 filed with the SEC on June 18, 2009 and Amendment No. 4
to the Schedule 14D-9 filed with the SEC on June 19, 2009 (as amended from
time to time, the
Schedule 14D-9
) by IDM
Pharma, Inc., a Delaware corporation (the
Company
).
The Schedule 14D-9 relates to the tender offer by Jade Subsidiary Corporation,
a Delaware corporation (
Offeror
)
and wholly owned subsidiary of Takeda America Holdings, Inc., which is a
New York corporation and wholly owned subsidiary of Takeda Pharmaceutical
Company Limited, a corporation organized under the laws of Japan (
TPC
), to purchase all of the
outstanding
shares of common stock, par value $0.01 per share
(the
Shares
) of the Company
at a price of $2.64 per Share, net to the
seller in cash, 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 (the
Letter of Transmittal
, and
together with the Offer to Purchase, the
Offer
),
copies of which are filed as Exhibits (a)(1)(A) and (a)(1)(B) to
the Schedule 14D-9, respectively.
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.
All capitalized terms used in this Amendment No. 5
without definition have the meanings ascribed to them in the Schedule 14D-9.
The
information in the Schedule 14D-9 is incorporated into this Amendment No. 5
by reference to all of the applicable items in the Schedule 14D-9, except that
such information is hereby amended and supplemented to the extent specifically
provided in this Amendment No. 5.
Item 8.
Additional Information.
Item 8 (
Additional Information
) of Schedule 14D-9 is hereby
amended and supplemented by adding the following text to the end of
Item 8:
The
initial offering period of the Offer expired at 12:00 midnight, New York City
time, at the end of Monday, June 22, 2009. According to American
Stock Transfer & Trust Company, the depositary for the Offer, as of
such time, a total of approximately 21,842,929 Shares (including Shares
tendered under guaranteed delivery procedures) had been validly tendered
pursuant to the Offer and not properly withdrawn, representing approximately
86.4% of all outstanding Shares. Pursuant to the terms of the Offer,
Offeror has accepted for payment all of such Shares. Payment for such
Shares will be made promptly in accordance with the terms of the Offer.
On June 23,
2009, TPC issued a press release announcing the completion of the initial
offering period of the Offer. TPC also announced that Offeror expects to
exercise promptly the option granted to it in the Merger Agreement to purchase
additional Shares at US$2.64 per Share, which will result in Offeror owning
more than 90% of the outstanding Shares.
Offeror
expects to acquire any remaining outstanding Shares by means of a Merger of
Offeror with and into the Company, as a result of which the Company will become
a wholly owned subsidiary of Takeda America. Pursuant to the Merger, each
remaining outstanding Share (other than (1) any Shares held by the Company
as treasury stock or owned by Takeda America, Offeror or any subsidiary of the
Company, Takeda America or Offeror and (2) any Shares held by a holder who
has not voted in favor of or consented to the Merger and who has properly
demanded and perfected his, her or its right to be paid the fair value of such
Shares in accordance with the provisions of Section 262 of the General
Corporation Law of the State of Delaware) will be automatically cancelled and
converted into the right to receive the Offer Price. Takeda America
expects to complete the Merger as soon as practicable pursuant to the
short-form merger procedure available under the General Corporation Law of the
State of Delaware.
The full text of the
press release issued by TPC is attached hereto as Exhibit (a)(5)(G) and
is incorporated herein by reference.
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Item 9.
Exhibits.
Item 9 (
Exhibits
) of Schedule 14D-9 is hereby amended and
supplemented by adding the following exhibit:
Exhibit No.
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Description
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(a)(5)(G)
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Press Release,
dated June 23, 2009, issued by Takeda Pharmaceutical Company Limited
(incorporated herein by reference to Exhibit (a)(5)(J) to the
Schedule TO filed with the SEC on June 23, 2009).
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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.
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IDM
Pharma, Inc.
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By:
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/s/
Robert J. De Vaere
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Name:
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Robert J. De Vaere
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Title:
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Senior Vice President, Finance and Administration
and Chief Financial Officer
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Dated: June 23, 2009
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