SCHEDULT TO
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
NOVEN
PHARMACEUTICALS, INC.
(Name of Subject Company
(Issuer))
NORTHSTAR
MERGER SUB, INC.
A Wholly-Owned Subsidiary
of
HISAMITSU
U.S., INC.
A Wholly-Owned Subsidiary
of
HISAMITSU
PHARMACEUTICAL CO., INC.
(Names of Filing Persons
(Offerors))
COMMON
STOCK, $0.0001 PAR VALUE
(Title
of Class of Securities)
670009109
(CUSIP
Number of Class of Securities)
Mr. Nobuo
Tsutsumi, Ph.D.
General Manager of Legal Department
Hisamitsu Pharmaceutical Co., Inc.
Marunouchi, Chiyoda-ku 1-11-1
Tokyo,
100-6221,
Japan
81-3-5293-1700
(Name, address, and telephone
numbers of person authorized to receive notices and
communications on behalf of filing persons)
Copy
to:
Kevin
A. Rinker, Esq.
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
(212) 909-6000
CALCULATION
OF FILING FEE
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Amount of Filing
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Transaction Valuation(1)
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Fee(2)
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$407,383,098
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$
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22,732
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(1) |
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Estimated for purposes of calculating the filing fee only. This
amount is the sum of (i) 23,535,967 shares of Noven
Pharmaceuticals, Inc. common stock (based on 25,028,987
outstanding as of July 9, 2009, less 1,240,000 shares
owned by Hisamitsu Pharmaceutical Co., Inc. and 253,020
outstanding shares of restricted stock) by $16.50 per share,
which is the offer price, plus (ii) $3,057,352 expected to
be paid in connection with the cancellation of outstanding
options, (iii) $10,982,460 to be paid in connection with
the cancellation of outstanding stock appreciation rights, plus
(iv) $825,000 expected to be paid in connection with
cancellation of outstanding restricted stock units, and
(v) $4,174,830 expected to be paid in connection with
cancellation of shares of restricted stock. |
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(2) |
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The filing fee was calculated in accordance with
Rule 0-11
under the Securities Exchange Act of 1934, as amended, and Fee
Rate Advisory #5 for fiscal year 2009, issued March 11,
2009, by multiplying the transaction value by 0.0000558. |
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Check the 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.
Amount Previously Paid: n/a Filing Party: n/a
Form of Registration No.: n/a Date Filed: n/a
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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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Third-party tender offer subject to
Rule 14d-1.
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Issuer tender offer subject to
Rule 13e-4.
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Going-private transaction subject to
Rule 13e-3.
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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.
If applicable, check the appropriate box(es) below to designate
the appropriate rule provision(s) relied upon:
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Rule 13e-4(i)
(Cross-Border Issuer Tender Offer)
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Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer)
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This Tender Offer Statement on Schedule TO (together with
any amendments and supplements hereto, this
“Schedule TO”) is filed by (i) Northstar
Merger Sub, Inc., a Delaware corporation (the
“Purchaser”) and wholly-owned subsidiary of Hisamitsu
U.S., Inc., a Delaware corporation (“Holdings”) and
wholly-owned subsidiary of Hisamitsu Pharmaceutical Co., Inc., a
corporation organized under the laws of Japan
(“Parent”), (ii) Holdings and (iii) Parent.
This Schedule TO relates to the offer by the Purchaser to
purchase all of the outstanding shares of common stock, par
value $0.0001 per share, together with the associated
Series A junior participating preferred stock purchase
rights (the “Rights”) issued pursuant to the Rights
Agreement (the “Rights Plan”), dated as of
November 6, 2001, between the Company and American Stock
Transfer & Trust, as amended (the “Shares”),
of Noven Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), at a purchase price of $16.50 per Share
net to the seller in cash, without interest and less any
required withholding taxes, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated
July 23, 2009 (together with any amendments and supplements
thereto, the “Offer to Purchase”) and in the related
Letter of Transmittal, copies of which are attached hereto as
Exhibits (a)(1)(A) and (a)(1)(B), respectively.
Capitalized terms used and not defined herein shall have the
meanings assigned to such terms in the Offer to Purchase.
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Item 1.
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Summary
Term Sheet.
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The information set forth in the section of the Offer to
Purchase entitled “Summary Term Sheet” is incorporated
herein by reference.
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Item 2.
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Subject
Company Information.
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(a) The name of the subject company and the issuer of the
securities to which this Schedule TO relates is Noven
Pharmaceuticals, Inc., a Delaware corporation. The
Company’s principal executive offices are located at 11960
SW 144th
Street, Miami, Florida, 33186. The Company’s telephone
number at such address is
(305) 253-5099.
(b) This Schedule TO relates to the outstanding shares
of common stock, par value $0.0001 per share of the Company,
together with the Rights. Unless the context otherwise requires,
all references to Shares include the Rights, and all references
to the Rights include the benefits that may inure to holders of
the Rights under the Rights Plan. The Company has advised Parent
that, as of July 9, 2009 (i) 25,028,987 Shares
were issued and outstanding, and (ii) 1,399,639 shares
of the Company’s common stock were subject to outstanding
options, 2,560,496 shares of the Company’s common
stock were subject to outstanding stock appreciation rights and
50,000 shares of the Company’s common stock were
subject to outstanding restricted stock units.
(c) The information set forth in the section in the Offer
to Purchase entitled “Price Range of Shares;
Dividends” is incorporated herein by reference.
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Item 3.
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Identity
and Background of Filing Person.
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(a) – (c) This Schedule TO is filed by
Parent, Holdings and the Purchaser. The information set forth in
the section of the Offer to Purchase entitled “Certain
Information Concerning Parent, Holdings and the Purchaser,”
and in Schedule I to the Offer to Purchase is incorporated
herein by reference.
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Item 4.
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Terms
of the Transaction.
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The information set forth in the sections of the Offer to
Purchase entitled “Summary Term Sheet,” “Terms of
the Offer,” “Acceptance for Payment and Payment for
Shares,” “Procedures for Accepting the Offer and
Tendering Shares,” “Withdrawal Rights,”
“Certain United States Federal Income Tax
Consequences,” “Purpose of the Offer; Plans for the
Company,” “Certain Effects of the Offer,” and
“Certain Conditions of the Offer” is incorporated
herein by reference.
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Item 5.
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Past
Contacts, Transactions, Negotiations and
Agreements.
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The information set forth in the sections of the Offer to
Purchase entitled “Summary Term Sheet,”
“Introduction,” “Certain Information Concerning
Parent, Holdings and the Purchaser,” “Background of
the Offer; Past Contacts or Negotiations with the
Company,” “Purpose of the Offer; Plans for the
Company” and “The Transaction Agreements; Employment
Agreement” is incorporated herein by reference.
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Item 6.
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Purposes
of the Transaction and Plans or Proposals.
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The information set forth in the sections of the Offer to
Purchase entitled “Summary Term Sheet,”
“Introduction,” “Price Range of Shares;
Dividends,” “Certain Effects of the Offer,”
“Purpose of the Offer; Plans for the Company” and
“The Transaction Agreements; Employment Agreement” is
incorporated herein by reference.
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Item 7.
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Source
and Amount of Funds or Other Consideration.
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The information set forth in the section of the Offer to
Purchase entitled “Source and Amount of Funds” is
incorporated herein by reference.
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Item 8.
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Interest
in Securities of the Subject Company.
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The information set forth in the section of the Offer to
Purchase entitled “Certain Information Concerning Parent,
Holdings and the Purchaser,” is incorporated herein by
reference.
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Item 9.
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Persons/Assets
Retained, Employed, Compensated or Used.
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The information set forth in the section of the Offer to
Purchase entitled “Fees and Expenses” is incorporated
herein by reference.
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Item 10.
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Financial
Statements.
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Not applicable.
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Item 11.
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Additional
Information.
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(a)(1) The information set forth in the sections of the Offer to
Purchase entitled “Certain Information Concerning Parent,
Holdings and the Purchaser,” “Background of the Offer;
Past Contacts or Negotiations with the Company,”
“Purpose of the Offer; Plans for the Company” and
“The Transaction Agreements; Employment Agreement” is
incorporated herein by reference.
(a)(2) The information set forth in the sections of the Offer to
Purchase entitled “Purpose of the Offer; Plans for the
Company,” “Certain Conditions of the Offer” and
“Certain Legal Matters; Regulatory Approvals” is
incorporated herein by reference.
(a)(3) The information set forth in the sections of the Offer to
Purchase entitled “Certain Conditions of the Offer”
and “Certain Legal Matters; Regulatory Approvals” is
incorporated herein by reference.
(a)(4) The information set forth in the section of the Offer to
Purchase entitled “Certain Effects of the Offer,” is
incorporated herein by reference.
(a)(5) The information set forth in the section of the Offer to
Purchase entitled “Certain Legal Matters; Regulatory
Approvals” is incorporated herein by reference.
(b) The information set forth in the Offer to Purchase is
incorporated herein by reference.
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Exhibit
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Exhibit Name
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(a)(1)(A)
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Offer to Purchase dated July 23, 2009.
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(a)(1)(B)
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Letter of Transmittal (including Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9).
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(a)(1)(C)
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Notice of Guaranteed Delivery.
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(a)(1)(D)
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.
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(a)(1)(E)
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Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
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(a)(5)(A)
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Joint Press Release issued by Hisamitsu Pharmaceutical Co., Inc.
and Noven Pharmaceuticals, Inc. on July 14, 2009, incorporated
herein by reference to the Schedule TO filed by Hisamitsu
Pharmaceutical Co., Inc. on July 14, 2009.
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(a)(5)(B)
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Summary Newspaper Advertisement as published in The Wall Street
Journal on July 23, 2009.
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(a)(5)(C)
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Press Release issued by Hisamitsu Pharmaceutical Co., Inc. on
July 23, 2009.
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(a)(5)(D)
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Complaint of IBEW Local Union 98, filed in the Court of
Chancery of the State of Delaware and dated July 15, 2009.
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(a)(5)(E)
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Complaint of Arthur I. Murphy, Jr., filed in the Eleventh
Judicial Circuit of Florida and dated July 15, 2009.
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(a)(5)(F)
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Complaint of Louisiana Municipal Police Employees, filed in the
Court of Chancery of the State of Delaware and dated
July 16, 2009.
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(b)
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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 14, 2009, by and
among Hisamitsu Pharmaceutical Co., Inc., Hisamitsu U.S., Inc.,
Northstar Merger Sub, Inc. and Noven Pharmaceuticals, Inc.
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(d)(2)
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Confidentiality Agreement, dated as of June 25, 2008, between
Hisamitsu Pharmaceutical Co., Inc. and Noven Pharmaceuticals,
Inc.
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(d)(3)
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Exclusivity Agreement, dated as of June 4, 2009, between
Hisamitsu Pharmaceutical Co., Inc. and Noven Pharmaceuticals,
Inc.
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(d)(4)
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Amended and Restated Employment Agreement, dated July 14, 2009,
between Noven Pharmaceuticals, Inc. and Jeffrey Eisenberg.
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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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Item 13.
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Information
Required by
Schedule 13E-3.
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Not applicable.
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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.
HISAMITSU PHARMACEUTICAL CO., INC.
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By:
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/s/ Hirotaka
Nakatomi
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Name: Hirotaka Nakatomi
Title: President &
Chief Executive Officer
Date: July 23, 2009
HISAMITSU U.S., INC.
Name: Kosuke Sugiyama
Title: President
Date: July 23, 2009
NORTHSTAR MERGER SUB, INC.
Name: Kosuke Sugiyama
Title: President
Date: July 23, 2009
Signature Page to Schedule TO
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