UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(RULE 14D-100)
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 1)
VITAE PHARMACEUTICALS, INC.
(Name of Subject Company)
AUGUSTA MERGER SUB, INC.
(Offeror)
A Wholly Owned Subsidiary of
ALLERGAN HOLDCO US, INC.
(Parent of Offeror)
An Indirect Wholly Owned Subsidiary of
ALLERGAN plc
(Parent of Offeror)
(Names of Filing Persons)
COMMON STOCK, $0.0001 PAR VALUE
(Title of Class of Securities)
92847N103
(CUSIP Number of Class of Securities)
A. Robert D. Bailey, Esq.
Allergan plc
Chief Legal Officer and Corporate Secretary
Clonshaugh Business and Technology Park
Coolock, Dublin, D17 E400, Ireland
(862) 261-7000
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)
with copies to:
Andrew L. Bab, Esq.
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
(212) 909-6323
CALCULATION OF FILING FEE
| Transaction Valuation* | Amount of Filing Fee** | |
| $638,724,395 | $64,320 |
| * | Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated as (i) 28,844,410 shares of common stock, par value $0.0001 per share (the “Shares”), of Vitae Pharmaceuticals, Inc. (“Vitae”) outstanding multiplied by the offer price of $21.00 per share, and (ii) 2,662,606 Shares issuable pursuant to outstanding options with an exercise price less than the offer price of $21.00 per share, multiplied by $12.39, which is the (x) offer price of $21.00 per share minus the weighted average exercise price for such options of $8.61 per share. The calculation of the filing fee is based on information provided by Vitae as of September 22, 2016. |
| ** | The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2016, issued August 27, 2015, by multiplying the Transaction Valuation by 0.0001007. |
| ☒ | 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: $64,320 | Filing Party: Augusta Merger Sub, Inc., Allergan Holdco US, Inc. and Allergan plc | |
| Form or Registration No.: Schedule TO | Date Filed: September 26, 2016 |
| ☐ | 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:
| ☒ | 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: ☐
ii
This Amendment No. 1 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Augusta Merger Sub, Inc., a Delaware corporation (“Purchaser”), a wholly owned subsidiary of Allergan Holdco US, Inc., a Delaware corporation (“Parent”), and an indirect wholly owned subsidiary of Allergan plc, an Irish public limited company (“Allergan”), with the Securities and Exchange Commission on September 26, 2016 (together with any subsequent amendments and supplements thereto, the “Schedule TO”). The Schedule TO relates to the tender offer by Purchaser for all of the outstanding shares of common stock, par value $0.0001 per share (“Shares”), of Vitae Pharmaceuticals, Inc., a Delaware corporation (“Vitae”), at a price of $21.00 per share, net to the seller in cash, without interest and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the offer to purchase dated September 26, 2016 (the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”), a copy of which is attached as Exhibit (a)(1)(B), which, as each may be amended or supplemented from time to time, collectively constitute the “Offer”.
All the information set forth in the Offer to Purchase, including Schedule I thereto, is incorporated by reference herein in response to Items 1 through 9 and Item 11 of this Schedule TO, and is supplemented by the information specifically provided in this Amendment.
Capitalized terms used but not defined in this Amendment shall have the meanings assigned to such terms in the Schedule TO.
Items 1 through 9 and Item 11.
The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as set forth below.
The third and fourth sentences of the second paragraph of the subsection titled “Compliance with the HSR Act” in Section 16 – “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase are amended and restated in their entirety to read as follows:
“Each of Allergan and Vitae filed on September 29, 2016 a Premerger Notification and Report Form with the FTC and the Antitrust Division in connection with the purchase of Shares in the Offer. As a result, the required waiting period with respect to the Offer will expire at 11:59 p.m., New York City time, on October 14, 2016, unless earlier terminated by the FTC and the Antitrust Division, Allergan and Vitae elect to withdraw and re-submit their Premerger Notification and Report Forms, or the FTC or the Antitrust Division issues a request for additional information and documentary material (a “Second Request”) prior to that time.”
iii
SIGNATURES
After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: October 4, 2016
| ALLERGAN HOLDCO US, INC. | ||
| By: | /s/ Matthew Brady | |
| Name: | Matthew Brady | |
| Title: | Secretary | |
| AUGUSTA MERGER SUB, INC. | ||
| By: | /s/ A. Robert D. Bailey | |
| Name: | A. Robert D. Bailey | |
| Title: | President | |
| ALLERGAN PLC | ||
| By: | /s/ A. Robert D. Bailey | |
| Name: | A. Robert D. Bailey | |
| Title: | Chief Legal Officer and Corporate Secretary | |
EXHIBIT INDEX
| Exhibit No. |
Description | |
| (a)(1)(A) | Offer to Purchase, dated September 26, 2016.* | |
| (a)(1)(B) | Letter of Transmittal.* | |
| (a)(1)(C) | Notice of Guaranteed Delivery.* | |
| (a)(1)(D) | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(E) | Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(F) | Joint Press Release issued by Allergan plc and Vitae Pharmaceuticals, Inc. on September 14, 2016 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Allergan plc with the Securities and Exchange Commission on September 14, 2016). | |
| (a)(1)(G) | Memorandum to Employees of Allergan plc, distributed on September 14, 2016 (incorporated by reference to Exhibit 99.2 to the Current Report on Form 8-K filed by Allergan plc with the Securities and Exchange Commission on September 14, 2016). | |
| (a)(1)(H) | Presentation slides made available September 14, 2016 (incorporated by reference to Exhibit 99.3 to the Current Report on Form 8-K filed by Allergan plc with the Securities and Exchange Commission on September 14, 2016). | |
| (a)(1)(I) | Copy of Allergan Presentation for Investor/Analyst Conference Call, dated September 21, 2016 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by Allergan plc with the SEC on September 21, 2016). | |
| (a)(1)(J) | Summary Advertisement as published in The Wall Street Journal on September 26, 2016.* | |
| (d)(1) | Agreement and Plan of Merger, dated as of September 13, 2016, by and among Augusta Merger Sub, Inc., Allergan Holdco US, Inc. and Vitae Pharmaceuticals, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Vitae Pharmaceuticals, Inc. with the Securities and Exchange Commission on September 14, 2016 (File No. 001-36617)). | |
| (d)(2) | Confidentiality Agreement, dated August 17, 2016, by and between Vitae Pharmaceuticals, Inc. and Allergan, Inc.* | |
| (g) | None. | |
| (h) | None. | |
| * | Previously filed. |