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. 2)
SCIELE
PHARMA, INC.
(Name
of Subject Company)
TALL
BRIDGE, INC.
SHIONOGI
& CO., LTD.
(Names
of Filing Persons — Offeror)
Common
Stock, Par Value $0.001 Per Share
(Title
of Class of Securities)
________________
808627103
(Cusip
Number of Class of Securities)
Isao
Teshirogi
Shionogi
& Co., Ltd.
1-8
Doshomachi 3-chome
Chuo-ku,
Osaka, 541-0045, Japan
Telephone:
+81 6 6202-2161
(Name, Address and Telephone Number
of Person Authorized to Receive
Notices
and
Communications on Behalf of Filing Persons)
Copies
to:
Theodore
A. Paradise
Michael
Davis
Davis
Polk & Wardwell
450
Lexington Avenue
New
York, New York 10017
Telephone:
(212) 450-4000
£
|
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:
R
|
third-party tender offer subject
to Rule 14d-1.
|
£
|
issuer tender offer subject to
Rule 13e-4.
|
£
|
going-private transaction subject
to Rule 13e-3.
|
£
|
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.
£
This
Amendment No. 2 (“
Amendment No. 2
”) amends
and supplements the Tender Offer Statement on Schedule TO (as previously
amended, the “
Schedule TO
”) originally
filed on September 8, 2008 by Shionogi & Co., Ltd., a joint stock
corporation (
kabushiki
kaisha
) incorporated under the laws of Japan (“
Shionogi
”), and Tall Bridge,
Inc., a Delaware corporation (“
Purchaser
”) and an indirect
wholly owned subsidiary of Shionogi, relating to the offer by Purchaser to
purchase all outstanding shares of common stock, par value $0.001 per share
(the “
Shares
”), of
Sciele Pharma, Inc., a Delaware corporation (“
Sciele
”), at $31.00 per Share,
net to the seller in cash, without interest, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated September 8, 2008
(the “
Offer to
Purchase
”) and in the related Letter of Transmittal (which, together with
any amendments or supplements thereto, collectively constitute the “
Offer
”).
All
capitalized terms used in this Amendment No. 2 without definition have the
meanings ascribed to them in the Schedule TO.
The items
of the Schedule TO set forth below are hereby amended and supplemented as
follows:
Item 7.
Source and Amount of Funds or Other Consideration
Item 7 of
the Schedule TO is hereby amended and supplemented by adding the
following:
“Shionogi
has elected not to enter into the unsecured senior bridge loan facility that was
described in the debt commitment letter that Shionogi had received from Goldman
Sachs Japan Co., Ltd. on September 1, 2008. Instead, on October 1, 2008,
Shionogi made alternative financing arrangements and entered into a special
overdraft loan agreement and a market interest rate loan agreement
(collectively, the “
Loan
Agreement
”) with Sumitomo Mitsui Banking Corporation (“
SMBC
”) under which SMBC will
lend ¥110 billion, the equivalent of approximately $1.0 billion, to
Shionogi for the purpose of financing the acquisition of Sciele. The funding
under the Loan Agreement is not subject to any conditions precedent. Shionogi’s
obligations under the Loan Agreement are unsecured. No guarantees will be
provided by any of Shionogi’s subsidiaries. The Loan Agreement will expire on
the earlier of (i) September 30, 2009 and (ii) upon the
occurrence of an acceleration event. During the term of the Loan Agreement,
within two days after Shionogi submits a request form to SMBC, SMBC will deposit
the requested funds into Shionogi’s bank account by Shionogi’s requested method
of deposit.
Borrowings
under the Loan Agreement will bear interest at the prevailing interest rate at
which SMBC is able to procure funds for the applicable interest rate period on
the short-term money market or other markets plus a margin of 0.15% per annum.
In addition, Shionogi will pay customary fees. The Loan Agreement includes
covenants by Shionogi with respect to (i) maintenance of an interest
coverage ratio (as defined in the Loan Agreement) of not less than 1 to 1,
(ii) absence of a two consecutive-period operating loss and
(iii) maintenance of an excess of its assets over its
liabilities. A breach of any covenant by Shionogi would give SMBC a
right to (i) require a consultation with Shionogi to amend certain provisions of
the Loan Agreement, subject to certain conditions and (ii) in certain
circumstances, to accelerate the loans under the Loan Agreement. The Loan
Agreement also contains other terms and conditions customary for similar
financings by banks in Japan.
The
foregoing summary description of the Loan Agreement is qualified in its entirety
by reference to the Loan Agreement itself, a copy of which Purchaser has filed
as an exhibit to the Schedule TO filed with the SEC in connection with the
Offer, which you may examine and copy as set forth in “Section 8—Certain
Information Concerning Sciele” above.”
Item 11.
Additional Information
Item 11 of
the Schedule TO is hereby amended and supplemented by deleting the second
paragraph of “Section 13—The Transaction Documents—The Merger Agreement—The
Offer” of the Offer to Purchase and replacing it with the
following:
“The
Merger Agreement provides that if at the scheduled Expiration Date any of the
conditions to the obligation to purchase the Shares have not been satisfied or
waived, Purchaser shall, subject to the rights of the parties under Article 8,
extend (and re-extend) the Offer for one or more periods of not more than ten
business days each until the earlier to occur of (i) a date as of which all of
the Offer Conditions have been satisfied or waived and (ii) March 31, 2009.
Purchaser shall also extend the Offer for any period required by any rule,
regulation, interpretation or position of the SEC or the staff thereof
applicable to the Offer or any period required by any other law. Purchaser is
required to accept and pay for Shares validly tendered and not withdrawn
promptly following the later of (i) the earliest date as of which Purchaser is
legally permitted to accept such tendered Shares and (ii) the earliest date as
of which each of the Offer Conditions is satisfied or waived.”
Item 11 of
the Schedule TO is hereby amended and supplemented by deleting the first
paragraph of “Section 13—The Transaction Documents—The Merger
Agreement—Subsequent Offering Period” of the Offer to Purchase and replacing it
with the following:
“The
Merger Agreement provides that following the Acceptance Time, Purchaser may,
without the consent of Sciele, make available a Subsequent Offering Period in
accordance with Rule 14d-11 of the Exchange Act for up to 20 business days if at
the commencement of the Subsequent Offering Period, the number of Shares owned
by Shionogi, Purchaser and their respective subsidiaries represent less than 90%
of the outstanding number of Shares. The Merger Agreement obligates Purchaser to
provide for a Subsequent Offering Period of at least ten business days, if
requested by Sciele, in the event that, at the Acceptance Time, Shionogi,
Purchaser and their respective subsidiaries own more than 80% but less than 90%
(inclusive of Shares issuable pursuant to the Top-Up Option described below) of
the Shares outstanding at that time. Purchaser is required to accept and pay for
Shares validly tendered during the Subsequent Offering Period promptly after
such Shares are so tendered.”
Item
12. Exhibits.
Item 12 of
the Schedule TO is hereby amended and supplemented by adding the following
exhibit:
|
“(b)(1)
|
Special
Overdraft Loan Agreement and Market Interest Rate Loan Agreement dated
October 1, 2008 between Shionogi & Co., Ltd. and Sumitomo Mitsui
Banking Corporation.”
|
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:
October 1, 2008
|
TALL
BRIDGE, INC.
|
|
|
|
|
|
|
By:
|
/s/
Shinya
Matsuzawa
|
|
|
|
Name:
Shinya
Matsuzawa
|
|
|
|
Title: Secretary
& Director
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Isao
Teshirogi
|
|
|
|
Name:
Isao Teshirogi
|
|
|
|
Title:
President & Representative Director
|
|
|
|
|
|
EXHIBIT
INDEX
|
|
|
(b)(1)
|
|
Special
Overdraft Loan Agreement and Market Interest Rate Loan Agreement dated
October 1, 2008 between Shionogi & Co., Ltd. and Sumitomo Mitsui
Banking Corporation.
|