SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 3)
Facet Biotech Corporation
(Name of Issuer)
Amber Acquisition Inc.
a wholly-owned subsidiary of
Abbott Laboratories
(Name of Filing Persons, Offerors)
Common Stock, par value $0.01 per share,
Associated Preferred Stock Purchase Rights
(Title of Class of Securities)
30303Q103
(CUSIP Number of Class of Securities)
Laura J. Schumacher
Executive Vice President, General Counsel and Secretary
Abbott Laboratories
100 Abbott Park Road
Abbott Park, Illinois 60064
(847) 937-6100
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Jonn R. Beeson, Esq.
Jones Day
3161 Michelson Drive, Suite 800
Irvine, California 92612
Telephone: (949) 851-3939
Calculation of Filing Fee
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Transaction Valuation(1) |
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Amount of Filing Fee(2) |
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$738,973,584 |
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$52,688.82 |
(1) Estimated for purposes of calculating the amount of the filing fee only, in accordance with Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Calculated by multiplying $27.00, the per share tender offer price, by 27,369,392 shares of common stock of Facet Biotech Corporation, which includes (a) 25,252,500 shares of common stock issued and outstanding (including restricted stock) and (b) 2,116,892 shares of common stock subject to outstanding stock options with an exercise price less than $27.00.
(2) The filing fee was calculated in accordance with Rule 0-11 of the Exchange Act and Fee Rate Advisory #4 for fiscal year 2010, issued December 17, 2009, by multiplying the transaction value by .00007130.
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 date of its filing.
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Amount Previously Paid: $52,688.82 |
Filing Party: Abbott Laboratories and Amber Acquisition, Inc. |
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Form or Registration No.: Schedule TO-T |
Date Filed: March 23, 2010 |
o 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.
o issuer tender offer subject to Rule 13e-4.
o going-private transaction subject to Rule 13e-3.
o 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
This Amendment No. 3 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on March 23, 2010 (as amended or supplemented, the “Schedule TO”) by Amber Acquisition Inc., a Delaware corporation (the “Purchaser”) and a wholly-owned subsidiary of Abbott Laboratories, an Illinois corporation (“Abbott”), and Abbott. The Schedule TO relates to the offer by the Purchaser to purchase all of the outstanding shares of common stock, par value $0.01 per share (the “Facet Common Stock”), including the associated rights to purchase shares of Series A Preferred Stock issued pursuant to the Rights Agreement, dated as of September 7, 2009, as amended by the amendments thereto dated as of December 15, 2009, December 16, 2009 and March 9, 2010, by and between Facet Biotech Corporation, a Delaware corporation (“Facet”), and Mellon Investor Services LLC (together with the Facet Common Stock, the “Shares”), of Facet, at a price of $27.00 per Share, in cash, without interest and subject to any required withholding taxes, upon the terms and subject to the conditions set forth in the offer to purchase, dated March 23, 2010 (as it may be amended or supplemented, the “Offer to Purchase”), and the related letter of transmittal (as it may be amended or supplemented, the “Letter of Transmittal,” and together with the Offer to Purchase, the “Offer”), copies of which were filed with the 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 Offer to Purchase or in the Schedule TO.
Items 4, 8 and 11.
Items 4, 8 and 11 of the Schedule TO are hereby amended and supplemented to include the following:
“The Offer expired at 12:00 midnight, New York City time, on Monday, April 19, 2010 (the end of the day on Monday). The Offer was not extended. The Depositary has advised Abbott that a total of 19,257,669 Shares were validly tendered and not properly withdrawn upon expiration of the Offer (including 914,673 Shares subject to guaranteed delivery procedures). The number of shares validly tendered and not properly withdrawn upon expiration of the Offer represents approximately 76.3% of all outstanding Shares, and approximately 70.4% of Facet’s voting securities determined on a fully diluted basis. The Purchaser has accepted for payment all Shares that were validly tendered and not properly withdrawn in the Offer.
Abbott and the Purchaser intend to exercise the Top-Up Option to purchase, at a price per Share equal to the Offer Price, an aggregate number of Shares equal to the lowest number of Shares that, when added to the number of Shares owned directly or indirectly by Abbott, at the time of such exercise, will constitute one Share more than 90% of the Shares (determined on a fully diluted basis) outstanding immediately after the issuance of Shares pursuant to the Top-Up Option. Following the exercise of the Top-Up Option, Abbott and the Purchaser intend to effect a short-form merger as promptly as practicable, without the need for a meeting of Facet’s shareholders. In the Merger, the Purchaser will be merged with and into Facet with Facet continuing as the Surviving Corporation and a wholly-owned subsidiary of Abbott. At the effective time of the Merger, each Share issued and outstanding immediately prior to the effective time of the Merger (other than Shares owned by Facet, any wholly-owned subsidiary of Facet, Abbott or the Purchaser, and Shares held by dissenting stockholders who properly exercise appraisal rights under the DGCL) will, by virtue of the Merger and without any action on the part of the holders of the Shares, be converted into the right to receive $27.00 in cash, without interest and subject to any required withholding taxes.
Abbott issued a press release on Tuesday, April 20, 2010, describing the completion of the Offer. The full text of the press release is attached hereto as Exhibit (a)(5)(E) and is incorporated herein by reference.”
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding Exhibit (a)(5)(E) below:
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(a)(1)(A)* |
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Offer to Purchase, dated March 23, 2010. |
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(a)(1)(B)* |
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Form of Letter of Transmittal. |
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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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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
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(a)(1)(E)* |
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Form of 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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Press release issued by Abbott and Facet on March 9, 2010, incorporated herein by reference to the Schedule TO-C filed by Abbott on March 10, 2010. |
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(a)(5)(B)* |
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Summary Advertisement as published in the Wall Street Journal on March 23, 2010. |
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(a)(5)(C)* |
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Press release issued by Abbott dated March 23, 2010. |
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(a)(5)(D)* |
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Press release issued by Abbott dated April 8, 2010. |
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(a)(5)(E) |
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Press release issued by Abbott dated April 20, 2010. |
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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 March 9, 2010, by and among Abbott, the Purchaser and Facet, incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Facet on March 10, 2010. |
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(g) |
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Not applicable. |
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(h) |
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Not applicable. |
* Filed Previously
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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Dated: April 20, 2010 |
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Amber Acquisition Inc. |
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By: |
/s/ Thomas C. Freyman |
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Thomas C. Freyman |
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President |
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Abbott Laboratories |
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By: |
/s/ Thomas C. Freyman |
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Thomas C. Freyman |
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Executive
Vice President, Finance |
EXHIBIT INDEX
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(a)(1)(A)* |
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Offer to Purchase, dated March 23, 2010. |
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(a)(1)(B)* |
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Form of Letter of Transmittal. |
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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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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
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(a)(1)(E)* |
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Form of 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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Press release issued by Abbott and Facet on March 9, 2010, incorporated herein by reference to the Schedule TO-C filed by Abbott on March 10, 2010. |
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(a)(5)(B)* |
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Summary Advertisement as published in the Wall Street Journal on March 23, 2010. |
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(a)(5)(C)* |
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Press release issued by Abbott dated March 23, 2010. |
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(a)(5)(D)* |
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Press release issued by Abbott dated April 8, 2010. |
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(a)(5)(E) |
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Press release issued by Abbott dated April 20, 2010. |
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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 March 9, 2010, by and among Abbott, the Purchaser and Facet, incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Facet on March 10, 2010. |
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(g) |
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Not applicable. |
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(h) |
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Not applicable. |
* Filed Previously