UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
SCHEDULE 14D-9
Solicitation/Recommendation
Statement under Section 14(d)(4)
of the Securities Exchange Act of
1934
(Amendment
No. 6)
____________________
OMRIX
BIOPHARMACEUTICALS, INC.
(Name
of Subject Company)
OMRIX
BIOPHARMACEUTICALS, INC.
(Names
of Persons Filing Statement)
____________________
Common Stock, par value $0.01 per
share
(Title
of Class of Securities)
681989109
(CUSIP
Number of Class of Securities)
Robert
Taub
Chief
Executive Officer
Omrix
Biopharmaceuticals, Inc.
1120
Avenue of Americas
New
York, New York 10036
(212)
887-6500
(Name,
address and telephone numbers of person authorized to receive
notices
and communications on behalf of the persons filing statement)
____________________
With copies to:
David
Fox and Randall Doud
Skadden,
Arps, Slate, Meagher & Flom LLP
Four
Times Square
New
York, New York 10036
(212)
735-3000
[
]
Check the box if the filing relates solely to
preliminary communications made before the commencement of a tender
offer.
This
Amendment No. 6 (this "Amendment") amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 of Omrix
Biopharmaceuticals, Inc. (the "Company") initially filed on November 26, 2008,
as amended by Amendment No. 1 thereto filed on December 1, 2008, Amendment No. 2
thereto filed on December 5, 2008, Amendment No. 3 thereto filed on December 11,
2008, Amendment No. 4 thereto filed on December 17, 2008 and Amendment No. 5
thereto filed on December 19, 2008 (the "Statement").
The
Statement relates to the cash tender offer by Binder Merger Sub, Inc., a
Delaware corporation and a wholly owned subsidiary of Johnson & Johnson
("Parent"), disclosed in a Tender Offer Statement on Schedule TO dated November
25, 2008 filed with the Securities and Exchange Commission, to purchase all of
the Company's outstanding common stock, par value $0.01 per share (the
"Shares"), at a price of $25.00 per Share, net to the selling stockholder in
cash without interest, less any required withholding taxes, upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated November 25,
2008 (as amended or supplemented from time to time, the "Offer to Purchase") and
in the related Letter of Transmittal (as amended or supplemented from time to
time, the "Letter of Transmittal" and, together with the Offer to Purchase, the
"Offer"), which were filed with the Statement as Exhibits (a)(1) and (a)(2)
thereto. Except as otherwise set forth below, the information
set forth in the Statement remains unchanged and is incorporated by reference as
relevant to the items in this Amendment. Capitalized terms used but
not otherwise defined herein have the meanings ascribed to such terms in the
Statement.
Item
4. The Solicitation or Recommendation
Item
4 is hereby amended and supplemented by adding the following paragraphs as a new
subsection of (b) immediately before the subsection entitled “Background and
Reasons for the Company Board's Recommendation
–
Opinion of the
Company's Financial Advisor”.
“
Certain
Projected Financial Information
Underlying the Analysis of the Company's Financial
Advisor.
Certain financial projections prepared by the
Company’s management were reviewed by the Company Board and made available to
the Company's financial advisor in connection with its opinion (the
"Projections").
The Projections reflect numerous
estimates and assumptions with respect to industry performance, general
business, economic, regulatory, market and financial conditions and other future
events, as well as matters specific to the Company’s business, all of which are
difficult to predict and many of which are beyond the Company’s
control. The Projections are subjective in many respects and thus are
susceptible to multiple interpretations and periodic revisions based on actual
experience and business developments. As such, the Projections
constitute forward-looking information and are subject to risks and
uncertainties that could cause actual results to differ materially from the
results forecasted in the Projections, including the various risks set forth in
the Company’s periodic reports. There can be no assurance that the
projected results will be realized or that actual results will not be
significantly higher or lower than projected. The Projections cover
multiple years and such information by its nature becomes less reliable with
each successive year.
Other than as indicated below, the
Projections do not take into account any circumstances or events occurring after
the date they were prepared, including the announcement of the acquisition of
the Company by Parent pursuant to the Offer and the Merger. There can
be no assurance that the announcement of the Offer and the Merger will not cause
customers of the Company to delay or cancel purchases of the Company’s products
and services pending the consummation of the Offer and the Merger or the
clarification of Parent’s intentions with respect to the conduct of the
Company’s business thereafter. Any such delay or cancellation of
customer sales is likely to adversely affect the ability of the Company to
achieve the results reflected in the Projections. Further, the Projections do
not take into account the effect of any failure to occur of the Offer or the
Merger and should not be viewed as accurate
or
continuing in that context.
The Projections were prepared solely
for internal use and not with a view toward public disclosure or toward
complying with generally accepted accounting principles, the published
guidelines of the SEC regarding projections or the guidelines established by the
American Institute of Certified Public Accountants for preparation and
presentation of prospective financial information. Neither the
Company’s independent registered public accounting firm, nor any other
independent accountants, have compiled, examined or performed any procedures
with respect to the Projections, nor have they expressed any opinion or any
other form of assurance on such information or its achievability, and they
assume no responsibility for, and disclaim any association with, the
Projections.
The tables below set forth a summary of
the total revenue, operating income, net income, earnings per share, EBITDA and
adjusted EBITDA for the Company on a consolidated basis for fiscal years 2008
through 2013, in each case as set forth in the Projections.
Summary of Projection
s
($
in thousands, except earnings per share)
|
Income
Statement
|
FY
2008
|
FY
2009
|
FY
2010
|
FY
2011
|
FY
2012
|
FY
2013
|
|
|
|
|
|
|
|
|
|
Total
Revenue
|
$78,181
|
$87,108
|
$131,267
|
$187,805
|
$255,676
|
$286,832
|
|
|
|
|
|
|
|
|
|
Operating
Income
|
8,750
|
10,223
|
20,448
|
48,939
|
82,141
|
90,236
|
|
|
|
|
|
|
|
|
|
Net
Income
|
11,578
|
10,560
|
19,615
|
45,220
|
75,334
|
82,757
|
|
|
|
|
|
|
|
|
|
Earnings
per Share
|
0.66
|
0.60
|
1.10
|
2.50
|
4.12
|
4.47
|
|
|
|
|
|
|
|
|
|
EBITDA
|
10,000
|
11,809
|
22,296
|
52,583
|
89,216
|
98,172
|
|
|
|
|
|
|
|
|
|
Adjusted
EBITDA (a)
|
7,943
|
16,541
|
21,161
|
49,248
|
85,881
|
94,837
|
(a)
Excludes amortization of milestone payments to be made under the commercial
agreements between the Company and a subsidiary of Parent described at "Item 3.
Past Contacts, Transactions, Negotiations and Agreements—Arrangements with
Parent and Purchaser—Other Agreements between the Company and
Parent."
The forward looking financial
information presented above is presented solely as a supplemental disclosure.
The information provided under the heading “EBITDA”and "Adjusted EBITDA" above
is not a measure of financial performance under U.S. generally accepted
accounting principles (“GAAP”) and should be considered in addition to, but not
as a substitute for, other measures of financial performance reported by the
Company here and elsewhere in accordance with GAAP. For purposes of the EBITDA
and Adjusted EBITDA disclosure above, the Company is unable to provide a
quantitative reconciliation with GAAP because such information is not available
without unreasonable effort. However, the Company believes that EBITDA and
Adjusted EBITDA generally is useful information to investors as it is used by
the Company’s management to evaluate the operating performance of the Company’s
business.”
Item
8. Additional Information
The
subsection (i) of this Item 8 entitled "Certain Litigation" is hereby amended
and supplemented by adding the following text to the end of such
subsection:
On December 19, 2008, the parties to
the purported stockholder lawsuits captioned
Rice v. Omrix
Pharmaceuticals, Inc., et al.
, Index No. 081603454, and
Burton v. Ellberger
et al.
, Index No.
081116452,
entered into a memorandum of
understanding (“MOU”) pursuant to which the parties agreed to settle those
purported stockholder lawsuits. The MOU resolves the allegations by the
plaintiffs against the defendants in connection with the Offer and the Merger
and provides a release and settlement by the class of the Company's stockholders
of all claims against the defendants and their affiliates and agents in
connection with the Offer and the Merger.
SIGNATURE
After due inquiry and to the best of
its knowledge and belief, the undersigned certifies that the information set
forth in this Statement is true, complete and correct.
|
|
OMRIX
BIOPHARMACEUTICALS, INC.
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Nanci Prado
|
|
|
|
|
Name:
|
Nanci
Prado
|
|
|
|
Title:
|
Vice
President, General Counsel
|
|
|
|
|
Dated:
December 19, 2008
Omrix Biopharmaceuticals (MM) (NASDAQ:OMRI)
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