Amended Tender Offer Statement by Third Party (sc To-t/a)

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE TO

(Rule 14d-100)

TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No. 9)

 

 

Ocata Therapeutics, Inc.

(Name of Subject Company (Issuer))

 

 

Laurel Acquisition Inc.

an indirect wholly-owned subsidiary of

Astellas Pharma Inc.

(Names of Filing Persons (Offerors))

Common Stock, $0.001 par value per share

(Title of Class of Securities)

67457L100

(CUSIP Number of Class of Securities (Underlying Common Stock))

 

 

Yoshihiko Hatanaka

President and Chief Executive Officer

Astellas Pharma Inc.

2-5-1, Nihonbashi-Honcho, Chuo-ku

Tokyo 103-8411, Japan

+(81)-3-3244-3000

(Name, Address, and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Person)

 

 

Copies to:

Scott F. Smith, Esq.

Jack S. Bodner, Esq.

Covington & Burling LLP

The New York Times Building

620 Eighth Avenue

New York, NY 10018-1045

[phone]

 

 

Calculation of Filing Fee

 

Transaction Valuation*		Amount of Filing Fee**
$359,743,766		$36,226.20

 

*

Estimated for purposes of calculating the filing fee only. This amount assumes the purchase of up to 42,322,796 shares of common stock, par value $0.001 per share, of Ocata, at a purchase price of $8.50 per share. Such number of shares consists of (i) 42,300,462 shares of common stock issued and outstanding as of November 18, 2015, and (ii) 22,334 shares of common stock that are expected to be issuable before the expiration of the Offer under vested options and other rights to acquire shares of common stock.

**	The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), equals 0.0001007 of the transaction valuation.

 

x	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: $36,226.20		Filing Party: Astellas Pharma Inc.
Form or Registration No.: Schedule TO		Date Filed: November 19, 2015

 

¨	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:

 

x

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: x

 

 

 

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This Amendment No. 9 (this “Amendment”) amends and supplements the Tender Offer Statement filed on Schedule TO, originally filed with the Securities and Exchange Commission (the “SEC”) on November 19, 2015 (together with any amendments and supplements thereto, including this Amendment, the “Schedule TO”), relates to the offer by Laurel Acquisition Inc., a Delaware corporation (the “Purchaser”) and an indirect wholly-owned subsidiary of Astellas Pharma Inc. (“Astellas”), to purchase all of the issued and outstanding shares of common stock, par value $0.001 per share (the “Shares”), of Ocata Therapeutics, Inc., a Delaware corporation (“Ocata”), at a purchase price of $8.50 per Share, net to the seller in cash, without interest, subject to any withholding of taxes required by applicable law, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 19, 2015 (the “Offer to Purchase”), and in the related Form of Letter of Transmittal, copies of which are filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Schedule TO.

Items 1-9; Item 11

The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Item incorporates by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as follows:

“The Offer and withdrawal rights expired as scheduled at 5:00 p.m., New York City time, February 9, 2016. The Offer was not extended. The Depositary has advised that, as of the expiration of the Offer, 22,675,963 Shares, representing approximately 53.6% of the Shares issued and outstanding as of the expiration of the Offer, had been validly tendered and not validly withdrawn pursuant to the Offer. The number of Shares tendered satisfies the Minimum Condition. As the Minimum Condition and each of the other conditions of the Offer have been satisfied, Purchaser has accepted for payment all Shares that were validly tendered and not validly withdrawn pursuant to the Offer.

Following expiration of the Offer and acceptance for payment of the Shares, the Purchaser had ownership sufficient to effect the Merger under Section 251(h) of the DGCL without a vote of stockholders of Ocata. Accordingly, the Purchaser has effected the Merger in which the Purchaser merged with and into Ocata, with Ocata surviving the Merger and continuing as an indirect wholly-owned subsidiary of Astellas. In the Merger, each Share outstanding (other than Shares accepted for payment in the Offer, Shares held by Astellas or the Purchaser or Shares for which an Ocata stockholder has properly exercised appraisal rights under Delaware law) was cancelled and converted into the right to receive a price per Share equal to the Offer Price. The Shares ceased to trade on the NASDAQ Global Market prior to the opening of business on February 10, 2016, and Ocata has requested that the NASDAQ Global Market file a Notification of Removal from Listing and/or Registration under Section 12(b) of the Exchange Act on Form 25 to delist and deregister the Shares.”

Item 12. Exhibits.

Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit thereto:

 

(a)(1)(R)		Press Release issued by Astellas Pharma Inc., dated February 10, 2016.

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SIGNATURES

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.

 

Laurel Acquisition Inc.
By:		/s/ Masao Yoshida
		Name: Masao Yoshida
		Title:   President and Chief Executive Officer
Astellas Pharma Inc.
By:		/s/ Yoshihiko Hatanaka
		Name: Yoshihiko Hatanaka
		Title:   President and Chief Executive Officer

Date: February 10, 2016

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INDEX TO EXHIBITS

 

(a)(1)(A)		Offer to Purchase, dated as of November 19, 2015.
(a)(1)(B)		Form of Letter of Transmittal.
(a)(1)(C)		Form of Letter to Brokers, Dealers, Banks, Trust Companies and other Nominees.
(a)(1)(D)		Form of Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and other Nominees.
(a)(1)(E)		English translation of Press Release of Astellas Pharma Inc. filed with the Tokyo Stock Exchange and dated November 10, 2015 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by Astellas with the SEC on November 10, 2015).
(a)(1)(F)		Joint Press Release of Ocata Therapeutics, Inc. and Astellas Pharma Inc., dated November 10, 2015 (incorporated by reference to Exhibit 99.2 to the Schedule TO-C filed by Astellas with the SEC on November 10, 2015).
(a)(1)(G)		English Translation of Investor Presentation of Astellas Pharma Inc., dated November 10, 2015. (incorporated by reference to Exhibit 99.3 to the Schedule TO-C filed by Astellas with the SEC on November 10, 2015).
(a)(1)(H)		Summary Advertisement published on November 19, 2015.
(a)(1)(I)		Press Release issued by Astellas Pharma Inc., dated November 19, 2015.
(a)(1)(J)		Joint Press Release issued by Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated December 18, 2015.
(a)(1)(K)		Letter to Ocata stockholders from Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated December 22, 2015.
(a)(1)(L)		Letter to Ocata stockholders from Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated January 11, 2016.
(a)(1)(M)		Transcript of a voicemail message reminding Ocata stockholders of the expiration of the Offer.
(a)(1)(N)		Infographic related to the Offer.
(a)(1)(O)		Press Release issued by Astellas Pharma Inc., dated January 22, 2016.
(a)(1)(P)		Letter to Ocata employees from the President & CEO of Astellas Pharma Inc., dated January 22, 2016.
(a)(1)(Q)		Letter to Ocata stockholders from Astellas Pharma Inc., dated January 25, 2016.
(a)(1)(R)		Press Release issued by Astellas Pharma Inc., dated February 10, 2016.
(a)(5)(A)		Class Action Complaint, dated November 17, 2015 (Nadle v. Heffernan et al.).
(d)(1)		Agreement and Plan of Merger, dated as of November 10, 2015, by and among Astellas, the Purchaser and Ocata (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Ocata with the SEC on November 10, 2015).
(d)(2)		Form of Support Agreement(s), dated as of November 10, 2015, which were entered into among Astellas and the Purchaser and each of the directors and executive officers of Ocata (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Ocata with the SEC on November 10, 2015).
(d)(3)		Letter Agreement, dated as of September 4, 2015, by and between Ocata and Astellas.

Exhibit (a)(1)(R)

 

Astellas Announces Results of Tender Offer to Acquire

All Outstanding Shares of Ocata Therapeutics

and Changes to Subsidiaries

Tokyo, February 10, 2016 - Astellas Pharma Inc. (TSE: 4503, President and CEO: Yoshihiko Hatanaka, “Astellas”) announced today that it has successfully completed, through its indirect wholly-owned subsidiary Laurel Acquisition Inc. (“Laurel”), a tender offer to purchase all issued and outstanding shares of common stock of Ocata Therapeutics, Inc. (NASDAQ: OCAT, President and CEO: Paul Wotton, “Ocata”) for a price of US$8.50 per share net to the stockholder in cash (“Tender Offer”). Astellas commenced the Tender Offer on November 19, 2015, U.S. Eastern Time, and the Tender Offer, as previously extended, expired at 5:00 p.m., U.S. Eastern Time, on February 9, 2016, and was not further extended. The board of directors of Astellas approved the Tender Offer on November 10, 2015.

Following successful completion of the Tender Offer, Laurel has been merged into Ocata on February 10, 2016, U.S. Eastern Time, with Ocata surviving the merger as a consolidated subsidiary of Astellas. As a result of the merger, Ocata’s common stock has ceased to be traded on the NASDAQ Global Market and will no longer be listed.

 

1.	Results of the Tender Offer

 

(1)	Overview of the Tender Offer

 

A)    Offeror in the Tender Offer		: Laurel Acquisition Inc.
B)     Company subject to the Tender Offer		: Ocata Therapeutics, Inc.
C)     Type of stock acquired		: All issued and outstanding shares of common stock
D)    Tender Offer price		: US$8.50 (8 Dollars and 50 Cents) per share
E)     Tender Offer period		: From November 19, 2015, U.S. Eastern Time until 5:00 p.m., U.S. Eastern Time, on February 9, 2016*

 

*	The original tender offer period was from November 19, 2015 until midnight at the end of the day on December 17, 2015 and was successively extended until February 9, 2016, at 5:00 pm, U.S. Eastern Time.

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F)

Minimum number of shares tendered: Laurel agreed to consummate the Tender Offer in the event that a majority of the issued and outstanding shares of Ocata’s common stock, or more than 50%, are tendered.

 

(2)	Results of the Tender Offer

 

A)

Status of tendered shares (as of 5:00 p.m., U.S. Eastern Time, on February 9, 2016)

Number of shares validly tendered and not withdrawn: 22,675,963 shares (approx. 53.6% of the issued and outstanding shares of Ocata’s common stock)

 

B)

Outcome of the Tender Offer

Because the number of tendered shares satisfies the minimum condition set forth in 1. (1) F) above, Laurel has purchased all tendered shares.

 

(3)	Merger procedures after the Tender Offer

Thereafter, on February 10, 2016, U.S. Eastern Time, in accordance with Delaware law, Laurel completed a short-form merger with and into Ocata with Ocata continuing as the surviving corporation and an indirect wholly-owned subsidiary of Astellas, thereby consummating Astellas’ acquisition of Ocata. At the effective time of the merger on February 10, 2016, U.S. Eastern Time, non-tendered shares of Ocata (other than shares of common stock held in the treasury of Ocata or Astellas, or any other direct or indirect wholly-owned subsidiary of Astellas and Ocata, including Laurel, which were canceled without consideration and extinguished, or by stockholders of Ocata who validly exercised their appraisal rights under Delaware law with respect to such shares) were canceled and converted into the right to receive US$ 8.50 per share net to the stockholder in cash, without interest thereon and less any applicable withholding taxes.

 

2.	Conversion of target to subsidiary

 

(1)	Reason for transfer

As a result of the Tender Offer and merger, Ocata has become a consolidated subsidiary of Astellas.

 

(2)	Number of shares held, amount and share ownership before and after acquisition

 

Shares held before acquisition		0 shares (Share of voting rights: 0.0%)
Aggregate of the (i) shares acquired in the Tender Offer and (ii) shares canceled as a result of the merger		42,331,546 shares

 

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Purchase amount		Approx. US$384 million (Expected amount)*
Shares held after acquisition		100 shares (after cancelation of all of shares of Ocata’s common stock and conversion of all shares of Laurel’s common stock in the merger) (Share of voting rights: 100%)

 

*	This expected amount is the sum of the acquisition of total common shares outstanding, outstanding options, outstanding warrants and other securities.

 

(3)	Outline of company converted into a subsidiary (prior to the acquisition)

 

Company name		Ocata Therapeutics, Inc.
Address		33 Locke Drive, Marlborough, MA 01752, US
Representative’s title and name		President and CEO: Paul Wotton
Business		Research and development of new therapies for ophthalmic diseases in the field of regenerative medicine
Capital (Stockholders’ equity)		US$13,761,005 (as of September 30, 2015)
Date of establishment		Founded in 1994, Changed its name to current one in 2014
Number of shares outstanding		42,331,546 shares of Common Stock (as of February 9, 2016)
Relationship between Ocata and Astellas
Capital Relationship:		There is no capital relationship between Astellas and Ocata required to be disclosed.
Personnel Relationship:		There is no personnel relationship between Astellas and Ocata required to be disclosed.
Business Relationship:		There is no business relationship between Astellas and Ocata required to be disclosed.
Applicable Relationships with Related Parties:		Ocata is not an affiliated party of Astellas.

 

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Financial results in recent fiscal years**

(THOUSANDS OF US DOLLARS)

 

		Fiscal Year ended December 2012				Fiscal Year ended December 2013				Fiscal Year ended December 2014
Sales			466				225				158
Net income			(34,584	)			(31,022	)			(34,749	)
Total assets			8,497				3,908				5,737
Net assets			(23,144	)			(22,534	)			(2,736	)

 

**	Cited from Ocata’s annual reports on Form 10-K which Ocata files with the U.S. Securities and Exchange Commission (SEC).

 

(4)	Conversion date

February 10, 2016, U.S. Eastern Time

 

3.

Prospects

The completion of the Tender Offer and the merger is expected to have a minor impact on Astellas’ financial results for the fiscal year ending March 31, 2016.

About Astellas

Astellas Pharma Inc., based in Tokyo, Japan, is a company dedicated to improving the health of people around the world through the provision of innovative and reliable pharmaceutical products. We focus on Urology, Oncology, Immunology, Nephrology and Neuroscience as prioritized therapeutic areas while advancing new therapeutic areas and discovery research leveraging new technologies/modalities. We are also creating new value by combining internal capabilities and external expertise in the medical/healthcare business. Astellas is on the forefront of healthcare change to turn innovative science into value for patients. For more information, please visit our website at www.astellas.com/en.

Cautionary Statement Regarding Forward-Looking Statements

Any statements made in this communication that are not statements of historical fact, including statements about the expected timetable for completing the transaction and Astellas’ and Ocata’s beliefs and expectations and statements about Astellas’ proposed acquisition of Ocata, including the timing of and closing conditions to the acquisition, and the potential effects of the acquisition on both Astellas and Ocata are forward-looking statements that are based on management’s beliefs, certain assumptions and current expectations and should be evaluated as such. These statements may be identified by their use of forward-looking terminology such as the words “expects,”

 

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“projects,” “anticipates,” “intends” and other similar words. Forward-looking statements include statements that may relate to Astellas’ or Ocata’s plans, objectives, strategies, goals, future events, future revenues or performance, and other information that is not historical information. Such forward-looking statements involve risks and uncertainties that could cause actual results to differ materially from those projected. These risks and uncertainties include, but are not limited to, general economic, business and market conditions and the satisfaction of the conditions to closing of the proposed transaction. For a more complete discussion of certain of the risks and uncertainties that could cause actual results to differ from those contained in the forward-looking statements with respect to Ocata, see the discussion of risks and uncertainties in Ocata’s annual report on Form 10-K for the fiscal year ended December 31, 2014, its most recent Quarterly Report on Form 10-Q, and other SEC filings. The forward-looking statements contained in this news release are made as of the date hereof, and neither Astellas nor Ocata undertakes any obligation to update any forward-looking statements, whether as a result of future events, new information or otherwise, except as required by law.

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Contacts for inquiries or additional information

Astellas Pharma Inc.   Corporate Communications   TEL: [phone]   FAX: [phone]   U.S Media Contact   Marjorie Moeling   TEL: [phone] MOBILE: [phone]   [e-mail]   http://www.astellas.com/en

 

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