Attached files
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EX-4.1 - EX-4.1 - OSI PHARMACEUTICALS INC | y84620exv4w1.htm |
EX-2.1 - EX-2.1 - OSI PHARMACEUTICALS INC | y84620exv2w1.htm |
EX-99.1 - EX-99.1 - OSI PHARMACEUTICALS INC | y84620exv99w1.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
The Securities Exchange Act of 1934
May 16, 2010
Date of Report (Date of earliest event reported)
OSI Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 0-15190 | 13-3159796 | ||
(State or other jurisdiction of | (Commission | (I.R.S. Employer | ||
incorporation) | File Number) | Identification No.) |
420 Saw Mill River Road
Ardsley, NY 10502
Ardsley, NY 10502
(Address of principal executive offices)
(914) 231-8000
(Registrants telephone number, including area code)
N/A
(Former name or former address,
if changed since last report.)Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
ITEM 1.01 Entry into a Material Definitive Agreement
Agreement and Plan of Merger
On May 16, 2010, OSI Pharmaceuticals, Inc. (the Company) entered into an agreement and plan
of merger (the Merger Agreement) with Astellas Pharma Inc., a corporation formed under the laws
of Japan (Astellas), Astellas US Holding, Inc. (Parent), a Delaware corporation and
wholly-owned subsidiary of Astellas and Ruby Acquisition, Inc. (Merger Sub), a Delaware
corporation and wholly-owned subsidiary of Parent, pursuant to which, among other things, (i)
Astellas will amend its existing offer to purchase all of the issued and outstanding shares of the
Companys common stock, par value $.01 per share (the Shares), to offer cash consideration of
$57.50 per Share (the Revised Offer Price), without interest (the Revised Offer) and (ii) as
promptly as practicable following the acceptance for payment of any
Shares tendered pursuant to the Revised Offer (the Acceptance
Time), Merger Sub will be merged (the
Merger) with and into the Company with the Company surviving the Merger as a wholly owned
subsidiary of Holding.
The Merger Agreement contains representations and warranties of the parties customary for
transactions of this type, and which, in the case of the Companys representations and warranties,
are qualified by disclosures contained in the Companys disclosure letter delivered by the Company
to the other parties to the Merger Agreement in connection with the Merger Agreement. The Company
has agreed to various customary covenants and agreements, including, among others, (i) to conduct
its business in the ordinary course during the interim period between the execution of the Merger
Agreement and the earlier of (A) the date of election or appointment of Parents designees to the
Companys Board of Directors (the Board) in accordance with the Merger Agreement and (B) the
effective time of the Merger, (ii) not to engage in certain kinds of transactions during such
period, (iii) to convene and hold a meeting of its stockholders to consider and vote upon the
Merger, if required by the General Corporation Law of the State of Delaware, and (iv) not to (A)
knowingly solicit or initiate any alternative proposal to acquire the Company, or (B) subject to
certain exceptions, engage in any discussions or negotiations regarding or provide any non-public
information in connection with, any such proposal. The Merger Agreement also contains certain
termination provisions for the Company and Astellas and provides that, in connection with the
termination of the Merger Agreement under specified circumstances, including, subject to the terms
of the Merger Agreement, if the Companys Board determines to accept an unsolicited Superior
Proposal (as that term is defined in the Merger Agreement), the Company will be required to pay
Astellas a termination fee of $125 million.
Astellas has agreed that Merger Sub will amend its initial offer as promptly as practicable
after the date of the Merger Agreement and will keep the Revised Offer open for 10 business days,
subject to extension as permitted pursuant to the Merger Agreement. Merger Sub may also elect to
provide for one or more subsequent offering periods after the
Acceptance Time.
During any subsequent offering period,
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Shares not tendered and purchased prior to the expiration of the Revised Offer may be tendered to
Merger Sub for the Revised Offer Price.
The obligation of Merger Sub to accept for payment and pay for Shares in the Revised Offer is
subject to a number of conditions, including, among other things: (1) more than 50% of the
outstanding shares (on a fully diluted basis) being tendered in the Revised Offer, (2) there not
having been a Company Material Adverse Effect (as defined in the Merger Agreement) since the date
of the Merger Agreement and (3) the Company has not sold, licensed or otherwise transferred any
rights relating to any product containing erlotinib, except in connection with sales of inventory
of such product in the ordinary course or as contractually required.
Pursuant to the Merger Agreement, the Company granted Astellas and Merger Sub an irrevocable
option (the Top Up Option), exercisable at or following the Acceptance Time and upon the terms and subject to the conditions set forth in the Merger Agreement, to
purchase at the Revised Offer Price an aggregate number of Shares that, when added to the number of
Shares held of record by Astellas, Holding and Merger Sub at the time of such exercise, constitute
one Share more than 90% of the Shares then outstanding, but which number of Shares cannot exceed
the number of authorized but unissued Shares under the Companys Restated Certificate of
Incorporation.
The foregoing description of the Merger Agreement is qualified in its entirety by reference to
the full text of the Merger Agreement, a copy of which is attached as Exhibit 2.1 to this Current
Report on Form 8-K (Report) and is incorporated herein by reference. The Merger Agreement has
been attached as an exhibit to provide investors and security holders with information regarding
its terms. It is not intended to provide any other financial information about the Company, or its
respective subsidiaries and affiliates. The representations, warranties and covenants contained in
the Merger Agreement were made only for purposes of that agreement and as of specific dates, are
solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed
upon by the parties, including being qualified by confidential disclosures made for the purposes of
allocating contractual risk between the parties to the Merger Agreement instead of establishing
these matters as facts, and may be subject to standards of materiality applicable to the
contracting parties that differ from those applicable to investors. Investors should not rely on
the representations, warranties and covenants or any description thereof as characterizations of
the actual state of facts or condition of the Company, or any of its subsidiaries or affiliates.
Moreover, information concerning the subject matter of the representations, warranties and
covenants may change after the date of the Merger Agreement, which subsequent information may or
may not be fully reflected in public disclosures by the Company.
Rights Agreement Amendment
In connection with the Merger Agreement, on May 16, 2010, the Company entered into Amendment
No. 1 (the Rights Agreement Amendment) to the Rights
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Agreement, dated as of September 27, 2000, by and between the Company and The Bank of New York
Mellon (the Rights Agreement). The Rights Agreement Amendment provides, among other
things, that neither the execution of the Merger Agreement, nor the consummation of the Revised
Offer, the Merger, or the other transactions contemplated by the Merger Agreement, will trigger the
exercise of the stockholder rights under the Rights Agreement. The Rights Agreement Amendment also
provides that none of Astellas, Holding or Merger Sub or any of their affiliates or associates will
be deemed an Acquiring Person under the Rights Agreement and no Distribution Date will be
deemed to occur, in each case, solely by virtue of the approval, execution, delivery or adoption of
the Merger Agreement, or the consummation of the Revised Offer, the Merger or any other
transactions contemplated by the Merger Agreement.
The foregoing description of the Rights Agreement Amendment is qualified in its entirety by
reference to the full text of the Rights Agreement Amendment, a copy of which is attached as
Exhibit 4.1 to this Report and is incorporated herein by reference.
ITEM 3.03 Material Modification to Rights of Security Holders
The disclosure regarding the Rights Agreement Amendment set forth under Item 1.01 of this
Report is incorporated by reference into this Item 3.03.
ITEM 8.01 Other Events
On May 16, 2010, Astellas and the Company issued a joint press release announcing the
execution of the Merger Agreement, a copy of which is attached as Exhibit 99.1 to this Report and
is incorporated herein by reference.
ITEM 9.01 Financial Statements and Exhibits
(d) Exhibits.
See Exhibit Index.
Additional Information
This communication does not constitute an offer to sell or the solicitation of an offer
to buy any securities of any stockholder of OSI Pharmaceuticals, Inc. (OSI).
In connection with the tender offer commenced by Astellas, OSI has filed a
Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC (as amended, the Schedule
14D-9). STOCKHOLDERS OF OSI ARE URGED TO READ THE SCHEDULE 14D-9 AND OTHER DOCUMENTS FILED WITH
THE SEC CAREFULLY IN THEIR ENTIRETY BECAUSE THEY CONTAIN IMPORTANT INFORMATION. Stockholders may
obtain a free copy of the Schedule 14D-9 and other documents filed by OSI with the SEC through the
website maintained by the SEC at http://www.sec.gov. Stockholders may also obtain, without charge,
a copy of
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the Schedule 14D-9 from MacKenzie Partners, Inc., OSIs information agent, by calling
800-322-2885 toll free or by calling 212-929-5500 or by emailing
osipharma@mackenziepartners.com.
Forward Looking Statements
This report contains forward-looking statements that do not convey historical information, but
relate to predicted or potential future events, such as statements of our plans, strategies and
intentions, or our future performance or goals for our product development programs. These
statements can often be identified by the use of forward-looking terminology such as believe,
expect, intend, may, will, should, or anticipate or similar terminology. The statements
involve risks and uncertainties and are based on various assumptions. Stockholders and prospective
stockholders are cautioned that these statements are only projections. In addition, any
forward-looking statement that we make is intended to speak only as of the date on which we made
the statement. Except for our ongoing obligations to disclose material information under the
federal securities laws, we will not update any forward-looking statement to reflect events or
circumstances that occur after the date on which the statement is made. The following risks and
uncertainties, among others, may cause our actual results to differ materially from those described
in forward-looking statements made in this report or presented elsewhere by management from time to
time.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: May 17, 2010 |
OSI Pharmaceuticals, Inc. |
|||
By: | /s/ Barbara A. Wood | |||
Barbara A. Wood | ||||
Senior Vice President, General Counsel and Secretary |
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EXHIBIT INDEX
Exhibit No. | Description | |
2.1
|
Agreement and Plan of Merger, dated as of May 16, 2010, among OSI Pharmaceuticals, Inc., Astellas Pharma Inc., Astellas US Holding, Inc. and Ruby Acquisition, Inc. | |
4.1
|
Amendment No. 1 to the Rights Agreement, dated May 16, 2010, by and among OSI Pharmaceuticals, Inc. and The Bank of New York Mellon | |
99.1
|
Joint Press Release, issued by OSI Pharmaceuticals, Inc. and Astellas Pharma Inc. on May 16, 2010 |
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