- Amended Statement of Ownership: Solicitation (SC 14D9/A)
20 October 2009 - 11:34PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 4)
SOLICITATION/RECOMMENDATION
STATEMENT UNDER
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
Sepracor Inc.
(Name of Subject Company)
Sepracor
Inc.
(Name of Persons Filing Statement)
Common Stock, par value $0.10 per
share, and the
Associated Preferred Stock Purchase Rights
(Title of Class of Securities)
817315104
(CUSIP Number of Class of Securities)
Andrew I. Koven, Esq.
Executive Vice President, General
Counsel and Corporate Secretary
Sepracor Inc.
84
Waterford Drive
Marlborough, Massachusetts
01752
(508)
481-6700
(Name, address and
telephone numbers of person authorized to receive notices
and communications on behalf of the persons
filing statement)
Copies
to:
William
J. Grant, Jr.
Russell L. Leaf
Adam
M. Turteltaub
Willkie
Farr & Gallagher LLP
787
Seventh Avenue
New
York, New York 10019
Telephone:
(212) 728-8000
Facsimile:
(212) 728-8111
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Hal
J. Leibowitz
Susan
W. Murley
Lia
Der Marderosian
Wilmer
Cutler Pickering Hale and Dorr LLP
60
State Street
Boston,
MA 02109
Telephone:
(617) 526-6000
Facsimile:
(671) 526-5000
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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. 4 (this
Amendment No. 4
)
amends and supplements Items 8 and 9 in the Solicitation/Recommendation
Statement on Schedule 14D-9 initially filed with the U.S. Securities and
Exchange Commission on September 15, 2009, by Sepracor Inc., a Delaware
corporation (the
Company
), as amended or supplemented from time to
time (the
Schedule 14D-9
). The
Schedule 14D-9 relates to the cash tender offer by Aptiom, Inc. (
Merger
Sub
), a Delaware corporation and an indirect wholly-owned subsidiary of
Dainippon Sumitomo Pharma Co., Ltd. (
Parent
), a company formed under
the laws of Japan, to purchase all of the Companys outstanding Shares at a
price of $23.00 per Share, payable net to the seller in cash without interest
thereon, less any applicable withholding taxes, upon the terms and subject to
the conditions set forth in Merger Subs Offer to Purchase dated September 15,
2009, and in the related Letter of Transmittal, as each may be amended or
supplemented from time to time.
Except as otherwise set
forth below, the information set forth in the Schedule 14D-9 remains unchanged
and is incorporated herein by reference as relevant to items in this Amendment No. 4. Capitalized terms used but not otherwise
defined herein have the meanings ascribed to such terms in the Schedule 14D-9.
Item 8.
Additional Information to be Furnished.
Item 8 of the Schedule
14D-9 is hereby amended and supplemented by adding the following new paragraphs
to the end of Item 8:
(n) Expiration of the
Subsequent Offering Period and Completion of Offer
Parent and the Company
announced on October 20, 2009 the completion of the Offer. The subsequent offering period expired at
5:00 p.m., New York City time, on Monday, October 19, 2009. According to Computershare Trust Company,
N.A., the depositary for the Offer, as of 5:00 p.m., New York City time,
on Monday, October 19, 2009, a total of approximately 96,590,423 Shares
were validly tendered and not properly withdrawn in the Offer, representing
approximately 86.9% of all outstanding shares of Company common stock. Merger Sub has accepted for payment all
shares of Company common stock that were validly tendered in the Offer, and
payment for such shares has been or will be made promptly, in accordance with
the terms of the Offer.
Pursuant to the terms of
the Merger Agreement, Merger Sub has exercised the Top-Up Option to increase
its ownership to at least one share more than 90% of the number of shares of
Company common stock outstanding (after giving effect to the issuance of the
shares of Company common stock pursuant to the Top-Up Option). As described in the Merger Agreement, the
purchase price per share of Company common stock in respect of the Top-Up
Option is equal to the Offer Price. Parent has advised the Company
that following the purchase of shares of Company common stock pursuant to the
Top-Up Option, Merger Sub intends to promptly consummate the Merger under the
short-form merger provisions of the DGCL and as described under the heading Vote
Required to Approve the Merger of this Item 8, without any further action by
or vote of the Companys stockholders other than Merger Sub. As described in the Merger Agreement, each
Share that is issued and outstanding and that has not been accepted for payment
pursuant to the Offer (other than any Shares held in the treasury of the
Company and Shares owned by Parent, Merger Sub, any other subsidiary
2
of Parent or any
subsidiary of the Company, all of which will be cancelled) will, at the
effective time of the Merger, be cancelled and, subject to the exercise of
appraisal rights under the DGCL, converted into the right to receive $23.00 per
Share, net to the stockholder in cash, without interest and less any required
withholding taxes, which is the same amount per Share that was paid in the
Offer. Following the Merger, the Shares
will no longer be listed on the Nasdaq Global Select Market and the Company
will no longer have reporting obligations under the Securities Exchange Act of
1934.
Item 9. Exhibits.
Item 9 of the Schedule 14D-9 is hereby amended and
supplemented by adding the following exhibit thereto:
Exhibit No.
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(a)(14)
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Press Release issued by the Company and Parent dated
October 20, 2009.*
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* Filed herewith.
3
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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SEPRACOR INC.
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By:
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/s/ Andrew I. Koven
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Name: Andrew I. Koven
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Title: Executive Vice President, General Counsel
and Corporate Secretary
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Dated: October 20, 2009
Index to
Exhibits
Exhibit No.
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(a)(14)
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Press Release issued by the Company and Parent dated
October 20, 2009.*
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* Filed herewith.
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