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
DURATA
THERAPEUTICS, INC.
(Name of Subject Company)
DELAWARE MERGER SUB, INC.
(Offeror)
A Wholly Owned
Subsidiary of
ACTAVIS W.C. HOLDING INC.
(Offeror)
An Indirect
Wholly Owned Subsidiary of
ACTAVIS plc
(Parent of Offeror)
(Names of Filing Persons)
COMMON STOCK,
$0.01 PAR VALUE
(Title of Class of Securities)
26658A107
(CUSIP Number
of Class of Securities)
A. Robert D. Bailey, Esq.
Chief Legal Officer and Corporate Secretary
Morris Corporate Center III
400 Interpace Parkway
Parsippany, NJ 07054
(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** |
| $828,466,550.42 |
|
$96,267.81 |
| |
| * |
Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated as (i) 26,790,203 outstanding shares of common stock, par value $0.01 per share (the “Shares”), of
Durata Therapeutics, Inc. (“Durata”) multiplied by the sum of (x) the offer price of $23.00 per share and (y) the maximum aggregate contingent cash consideration payment of $5.00 per share, (ii) 3,216 Shares subject to
unvested restricted stock units multiplied by the sum of (x) the offer price of $23.00 per share and (y) the maximum aggregate contingent cash consideration payment of $5.00 per share, and (iii) 4,062,867 Shares issuable pursuant to
outstanding options with an exercise price less than the offer price of $23.00 per share, multiplied by $19.26, which is the (x) offer price of $23.00 per share minus (y) weighted average exercise price for such options of $8.74 per share
plus (z) maximum aggregate contingent cash consideration payment of $5.00 per share. The calculation of the filing fee is based on information provided by Durata as of October 14, 2014. |
| ** |
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 2015, issued August 29, 2014, by multiplying the
Transaction Valuation by 0.0001162. |
| ¨ |
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 or Registration No.: N/A |
|
Date Filed: N/A |
| ¨ |
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: ¨
This Tender Offer
Statement on Schedule TO (this “Schedule TO”) relates to the tender offer by Delaware Merger Sub, Inc., a Delaware corporation (“Purchaser”), a wholly owned subsidiary of Actavis W.C. Holding Inc., a Delaware corporation
(“Parent”), and an indirect wholly owned subsidiary of Actavis plc, an Irish public limited company (“Actavis”), for all of the outstanding shares of common stock, par value $0.01 per share (“Shares”), of Durata
Therapeutics, Inc., a Delaware corporation (“Durata”), at a price of (x) $23.00 per share, net to the seller in cash, without interest and less any applicable withholding taxes, plus (y) one contractual contingent value right per
Share (each, a “CVR”), which represents the right to receive contingent payments of up to $5.00 in cash in the aggregate, if any, if certain specified milestones are achieved, upon the terms and subject to the conditions set forth in the
offer to purchase dated October 17, 2014 (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.” This Schedule TO is being filed on behalf of Purchaser, Parent and Actavis.
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 Schedule TO.
| Item 1. |
Summary Term Sheet. |
Regulation M-A Item 1001
The information set forth in the Offer to Purchase under the caption SUMMARY TERM SHEET is incorporated herein by reference.
| Item 2. |
Subject Company Information. |
Regulation M-A Item 1002
(a) Name and Address. The name, address, and telephone number of the subject company’s principal executive offices are as follows:
Durata Therapeutics, Inc.
500 West Monroe Street, Suite
3300
Chicago, Illinois 60661
(312) 219-7000
(b)-(c) Securities; Trading Market and Price. The information set forth in the Offer to Purchase under the following captions is
incorporated herein by reference:
INTRODUCTION
THE TENDER
OFFER — Section 6 (“Price Range of Shares; Dividends”)
| Item 3. |
Identity and Background of Filing Person. |
Regulation M-A Item 1003
(a)-(c) Name and Address; Business and Background of Entities; and Business and Background of Natural Persons. The
information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 8 (“Certain Information Concerning Parent and Purchaser”)
SCHEDULE I — Information Relating to Parent and Purchaser
| Item 4. |
Terms of the Transaction. |
Regulation M-A Item 1004
(a) Material Terms. The information set forth in the Offer to Purchase is incorporated herein by reference.
| Item 5. |
Past Contacts, Transactions, Negotiations and Agreements. |
Regulation M-A
Item 1005
(a) Transactions. The information set forth in the Offer to Purchase under the following captions is
incorporated herein by reference:
SUMMARY TERM SHEET
THE
TENDER OFFER — Section 10 (“Background of the Offer; Past Contacts or Negotiations with Durata”)
i
(b) Significant Corporate Events. The information set forth in the Offer to Purchase under
the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 10 (“Background of the Offer; Past Contacts or Negotiations with Durata”)
THE TENDER OFFER — Section 11 (“The Merger Agreement; Other Agreements”)
THE TENDER OFFER — Section 12 (“Purpose of the Offer; Plans for Durata”)
| Item 6. |
Purposes of the Transaction and Plans or Proposals. |
Regulation M-A
Item 1006
(a) Purposes. The information set forth in the Offer to Purchase under the following captions is incorporated
herein by reference:
THE TENDER OFFER — Section 12 (“Purpose of the Offer; Plans for Durata”)
(c) (1)-(7) Plans. The information set forth in the Offer to Purchase under the following captions is incorporated herein by
reference:
SUMMARY TERM SHEET
THE TENDER OFFER —
Section 9 (“Source and Amount of Funds”)
THE TENDER OFFER — Section 10 (“Background of the Offer; Past Contacts or
Negotiations with Durata”)
THE TENDER OFFER — Section 11 (“The Merger Agreement; Other Agreements”)
THE TENDER OFFER — Section 12 (“Purpose of the Offer; Plans for Durata”)
THE TENDER OFFER — Section 13 (“Certain Effects of the Offer”)
THE TENDER OFFER — Section 14 (“Dividends and Distributions”)
| Item 7. |
Source and Amount of Funds or Other Consideration. |
Regulation M-A
Item 1007
(a) Source of Funds. The information set forth in the Offer to Purchase under the following captions is
incorporated herein by reference:
SUMMARY TERM SHEET
THE
TENDER OFFER — Section 9 (“Source and Amount of Funds”)
THE TENDER OFFER — Section 10 (“Background of the Offer; Past
Contacts or Negotiations with Durata”)
(b) Conditions. The information set forth in the Offer to Purchase under the following
captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 9 (“Source and Amount of Funds”)
THE TENDER OFFER — Section 10 (“Background of the Offer; Past Contacts or Negotiations with Durata”)
THE TENDER OFFER — Section 11 (“The Merger Agreement; Other Agreements”)
THE TENDER OFFER — Section 12 (“Purpose of the Offer; Plans for Durata”)
THE TENDER OFFER — Section 15 (“Conditions of the Offer”)
(d) Borrowed Funds. The information set forth in the Offer to Purchase under the following captions is incorporated herein by
reference:
SUMMARY TERM SHEET
THE TENDER OFFER —
Section 9 (“Source and Amount of Funds”)
ii
THE TENDER OFFER — Section 11 (“The Merger Agreement; Other Agreements”)
THE TENDER OFFER — Section 15 (“Conditions of the Offer”)
| Item 8. |
Interest to Securities of the Subject Company. |
Regulation M-A Item 1008
(a) Securities Ownership. The information set forth in the Offer to Purchase under the following captions is incorporated
herein by reference:
THE TENDER OFFER — Section 8 (“Certain Information Concerning Parent and Purchaser”)
THE TENDER OFFER — Section 12 (“Purpose of the Offer; Plans for Durata”)
SCHEDULE I — Information Relating to Parent and Purchaser
(b) Securities Transactions. None.
| Item 9. |
Persons/Assets Retained, Employed, Compensated or Used. |
Regulation M-A
Item 1009
(a) Solicitations or Recommendations. The information set forth in the Offer to Purchase under the following
captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 3 (“Procedures for Accepting the Offer and Tendering Shares”)
THE TENDER OFFER — Section 10 (“Background of the Offer; Past Contacts or Negotiations with Durata”)
THE TENDER OFFER — Section 18 (“Fees and Expenses”)
| Item 10. |
Financial Statements. |
Regulation M-A Item 1010
(a) Financial Information. Not Applicable.
(b) Pro Forma Information. Not Applicable.
| Item 11. |
Additional Information. |
Regulation M-A Item 1011
(a) Agreements, Regulatory Requirements and Legal Proceedings. The information set forth in the Offer to Purchase under the following
captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 10 (“Background of the Offer; Past Contacts or Negotiations with Durata”)
THE TENDER OFFER — Section 11 (“The Merger Agreement; Other Agreements”)
THE TENDER OFFER — Section 12 (“Purpose of the Offer; Plans for Durata”)
THE TENDER OFFER — Section 13 (“Certain Effects of the Offer”)
THE TENDER OFFER — Section 16 (“Certain Legal Matters; Regulatory Approvals”)
(b) Other Material Information. The information set forth in the Offer to Purchase and the Letter of Transmittal is incorporated herein
by reference.
iii
Regulation M-A Item 1016
|
|
|
| Exhibit No. |
|
Description |
|
|
| (a)(1)(A) |
|
Offer to Purchase, dated October 17, 2014. |
|
|
| (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 Actavis plc and Durata Therapeutics, Inc. on October 6, 2014 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Actavis plc with the Securities and Exchange Commission
on October 6, 2014). |
|
|
| (a)(1)(G) |
|
Memorandum to Employees of Actavis plc, distributed on October 6, 2014 (incorporated by reference to Exhibit 99.2 to the Current Report on Form 8-K filed by Actavis plc with the Securities and Exchange Commission on October 6,
2014). |
|
|
| (a)(1)(H) |
|
Summary Advertisement as published in The Wall Street Journal on October 17, 2014. |
|
|
| (d)(1) |
|
Agreement and Plan of Merger, dated as of October 5, 2014, by and among Delaware Merger Sub, Inc., Actavis W.C. Holding Inc. and Durata Pharmaceuticals, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form
8-K filed by Actavis plc with the Securities and Exchange Commission on October 8, 2014). |
|
|
| (d)(2) |
|
Form of Contingent Value Rights Agreement (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Actavis plc with the Securities and Exchange Commission on October 8, 2014). |
|
|
| (d)(3) |
|
Tender and Support Agreement, dated as of October 5, 2014, by and among Delaware Merger Sub, Inc., Actavis W.C. Holding Inc. and each of the persons set forth on Schedule A thereto (incorporated by reference to Exhibit 99.2 to the
Current Report on Form 8-K filed by Actavis plc with the Securities and Exchange Commission on October 8, 2014). |
|
|
| (g) |
|
None. |
|
|
| (h) |
|
None. |
| Item 13. |
Information Required by Schedule 13E-3. |
Not applicable.
iv
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 17, 2014
|
|
|
| ACTAVIS W.C. HOLDING INC. |
|
|
| By: |
|
/s/ Sigurd C. Kirk |
| Name: |
|
Sigurd C. Kirk |
| Title: |
|
Senior Vice President, |
|
|
Corporate Business Development &
Integration |
|
| DELAWARE MERGER SUB, INC. |
|
|
| By: |
|
/s/ A. Robert D. Bailey |
| Name: |
|
A. Robert D. Bailey |
| Title: |
|
Vice President |
|
| ACTAVIS plc |
|
|
| By: |
|
/s/ A. Robert D. Bailey |
| Name: |
|
A. Robert D. Bailey |
| Title: |
|
Secretary and Chief Legal Officer |
v
EXHIBIT INDEX
|
|
|
| Exhibit No. |
|
Description |
|
|
| (a)(1)(A) |
|
Offer to Purchase, dated October 17, 2014. |
|
|
| (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 Actavis plc and Durata Therapeutics, Inc. on October 6, 2014 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Actavis plc with the Securities and Exchange Commission
on October 6, 2014). |
|
|
| (a)(1)(G) |
|
Memorandum to Employees of Actavis plc, distributed on October 6, 2014 (incorporated by reference to Exhibit 99.2 to the Current Report on Form 8-K filed by Actavis plc with the Securities and Exchange Commission on October 6,
2014). |
|
|
| (a)(1)(H) |
|
Summary Advertisement as published in The Wall Street Journal on October 17, 2014. |
|
|
| (d)(1) |
|
Agreement and Plan of Merger, dated as of October 5, 2014, by and among Delaware Merger Sub, Inc., Actavis W.C. Holding Inc. and Durata Pharmaceuticals, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form
8-K filed by Actavis plc with the Securities and Exchange Commission on October 8, 2014). |
|
|
| (d)(2) |
|
Form of Contingent Value Rights Agreement (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Actavis plc with the Securities and Exchange Commission on October 8, 2014). |
|
|
| (d)(3) |
|
Tender and Support Agreement, dated as of October 5, 2014, by and among Delaware Merger Sub, Inc., Actavis W.C. Holding Inc. and each of the persons set forth on Schedule A thereto (incorporated by reference to Exhibit 99.2 to the
Current Report on Form 8-K filed by Actavis plc with the Securities and Exchange Commission on October 8, 2014). |
|
|
| (g) |
|
None. |
|
|
| (h) |
|
None. |
vi
Exhibit (a)(1)(A)
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
DURATA THERAPEUTICS,
INC.
at
$23.00
per share plus one non-transferable contractual contingent value right for each share,
which represents the right to receive
contingent payments of up to $5.00 in cash in the aggregate
per share, if any, upon the achievement of certain milestones
by
DELAWARE MERGER SUB,
INC.
a wholly owned subsidiary of
ACTAVIS W.C. HOLDING INC.
and an indirect wholly owned subsidiary of
ACTAVIS plc
THE OFFER
AND WITHDRAWAL RIGHTS WILL EXPIRE AT THE END OF THE DAY, 12:00 MIDNIGHT, NEW YORK CITY TIME, ON NOVEMBER 14, 2014, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
Delaware Merger Sub, Inc., a Delaware corporation (“Purchaser”) and a wholly owned subsidiary of Actavis W.C. Holding Inc.
(“Parent”), an indirect wholly owned subsidiary of Actavis plc, an Irish public limited company (which we refer to as “Actavis”), is offering to purchase all of the outstanding shares of common stock, par value $0.01 per share
(the “Shares”), of Durata Therapeutics, Inc., a Delaware corporation (which we refer to as “Durata”), at a price of $23.00 per Share, net to the seller in cash, without interest and less any applicable withholding taxes, plus one
non-transferable contractual contingent value right per Share, which represents the right to receive contingent payments of up to $5.00 in cash in the aggregate, if any, if certain specified milestones are achieved, upon the terms and subject to the
conditions set forth in this Offer to Purchase (the “Offer to Purchase”) and in the related Letter of Transmittal (the “Letter of Transmittal” which, together with this Offer to Purchase and other related materials, as each may
be amended or supplemented from time to time, constitutes the “Offer”).
The Offer is being made pursuant to the Agreement and
Plan of Merger, dated as of October 5, 2014 (as it may be amended from time to time, the “Merger Agreement”), by and among Parent, Purchaser and Durata. The Merger Agreement provides, among other things, that following the
consummation of the Offer and subject to the satisfaction or waiver of certain conditions, Purchaser will be merged with and into Durata (the “Merger”) as soon as practicable without a vote of the stockholders of Durata in accordance with
Section 251(h) of the General Corporation Law of the State of Delaware, with Durata continuing as the surviving corporation (the “Surviving Corporation”) in the Merger and thereby becoming a wholly owned subsidiary of Parent. In the
Merger, each Share outstanding immediately prior to the effective time of the Merger (other than Shares held (i) in the treasury of Durata or by Parent, Purchaser or any of Parent’s other subsidiaries, which Shares will be canceled and
will cease to exist or (ii) by stockholders who validly exercise appraisal rights under Delaware law with respect to such Shares) will be automatically canceled and converted into the right to receive (a) $23.00 per Share, net to the
seller in cash, without interest and less any applicable withholding taxes (the “Cash Consideration”), plus (b) one non-transferable contractual contingent value right per Share (each, a “CVR”), which represents the right to
receive the following cash payments, if any, in each case without interest and without any applicable withholding taxes, with each payment conditioned upon the achievement of the applicable milestone as follows: (i) $1.00 per CVR payable by
Parent if, prior to December 31, 2018, authorization is received that permits any Selling Entity (as defined in the CVR Agreement) to market and sell dalbavancin with approved labeling as a single dose infusion for the treatment of adult
patients with acute bacterial skin and skin structure infections, (ii) $1.00 per CVR payable by Parent if, prior to December 31, 2018, any Selling Entity receives approval from
the European Medicines Agency (the “EMA”) to market and sell dalbavancin in the European Union for the treatment of adult patients with acute bacterial skin and skin structure
infections, and (iii) $3.00 per CVR payable by Parent if the cumulative worldwide Net Revenues (as defined in the CVR Agreement) during the period beginning on January 1, 2016 and ending on December 31, 2017, are equal to or exceed
$600 million (the Cash Consideration plus one CVR are referred to collectively herein as the “Offer Price”). As a result of the Merger, Durata will cease to be a publicly traded company and will become wholly owned by Parent. Under no
circumstances will interest be paid on the purchase price for Shares, regardless of any extension of the Offer or any delay in making payment for Shares.
The Offer is conditioned upon, among other things, (a) the absence of a termination of the Merger Agreement in accordance with its terms
(the “Termination Condition”) and (b) the satisfaction of (i) the Minimum Condition (as described below), (ii) the HSR Condition (as described below) and (iii) the Governmental Entity Condition (as described below). The
Offer is not subject to a financing condition. The Minimum Condition requires that the number of Shares validly tendered (excluding Shares tendered pursuant to guaranteed delivery procedures but not yet delivered) in accordance with the terms of the
Offer and not validly withdrawn on or prior to the end of the day, 12:00 midnight, New York City time, on November 14, 2014 (the “Expiration Date”, unless Purchaser shall have extended the period during which the Offer is open in
accordance with the Merger Agreement, in which event “Expiration Date” shall mean the latest time and date at which the Offer, as so extended by Purchaser, shall expire), together with any Shares then owned by Parent and its subsidiaries,
equals one Share more than one half of all Shares then outstanding. The HSR Condition requires that any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder (the “HSR Act”), shall have expired or otherwise been terminated. Under the HSR Act, each of Actavis and Durata expects to file by October 20, 2014 a Premerger Notification and Report Form with the Federal Trade Commission
(the “FTC”) and the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) in connection with the purchase of Shares in the Offer. The Offer may not be consummated until the expiration of a 15 calendar
day waiting period following such filings, unless the waiting period is earlier terminated by the FTC and the Antitrust Division. If the 15 calendar day waiting period expires on a Saturday, Sunday, or legal public holiday, the waiting period is
automatically extended to the end of the next day that is not a Saturday, Sunday, or legal public holiday. If within the 15 calendar day waiting period either the FTC or the Antitrust Division issues a request for additional information and
documentary material, the waiting period with respect to the Offer would be extended until 10 calendar days following the date of substantial compliance by Parent with that request, unless the FTC or the Antitrust Division terminates the additional
waiting period before its expiration. After the expiration of such 10 calendar day waiting period, such waiting period may only be extended by court order or with the consent of Parent. The Governmental Entity Condition requires that there be no
law, regulation, order, injunction or decree enacted, enforced, amended, issued, in effect or deemed applicable to the Offer, by any governmental entity (other than the application of the waiting period provisions of the HSR Act to the Offer) that
is in effect, and that no governmental entity shall have taken any other action, in each case the effect of which is to make illegal or otherwise prohibit consummation of the Offer or the Merger. The Offer is also subject to other conditions as
described in this Offer to Purchase. See Section 15 — “Conditions of the Offer.”
The board of directors of Durata,
among other things, has (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, are advisable and fair to, and in the best interests of, Durata and its stockholders,
(ii) approved the Merger Agreement and the transactions contemplated thereby and declared that the Merger Agreement, the Offer, the Merger and the other transactions contemplated by the Merger Agreement are advisable and (iii) resolved to
recommend that the stockholders of Durata accept the Offer and tender all of their Shares pursuant to the Offer.
A summary of the
principal terms of the Offer appears under the heading “Summary Term Sheet.” You should read this entire Offer to Purchase carefully before deciding whether to tender your Shares pursuant to the Offer.
October 17, 2014
ii
IMPORTANT
If you desire to tender all or any portion of your Shares to Purchaser pursuant to the Offer, you should either (a) complete and sign the
Letter of Transmittal for the Offer, which is enclosed with this Offer to Purchase, in accordance with the instructions contained in the Letter of Transmittal, and mail or deliver the Letter of Transmittal (or a manually executed facsimile thereof)
and any other required documents to Computershare Trust Company, N.A., in its capacity as depositary and paying agent for the Offer (which we refer to as the “Depositary”), and either deliver the certificates for your Shares to the
Depositary along with the Letter of Transmittal (or a manually executed facsimile thereof) or tender your Shares by book-entry transfer by following the procedures described in Section 3 — “Procedures for Accepting the Offer and
Tendering Shares,” in each case prior to the Expiration Date, or (b) request that your broker, dealer, commercial bank, trust company or other nominee effect the transaction for you. If you hold Shares registered in the name of a broker,
dealer, commercial bank, trust company or other nominee, you must contact that institution in order to tender your Shares to Purchaser pursuant to the Offer. If you are a record holder but your stock certificate is not available or you cannot
deliver it to the Depositary before the Offer expires, you may be able to tender your Shares using the enclosed Notice of Guaranteed Delivery (See Section 3 — “Procedures for Accepting the Offer and Tendering Shares” for further
details).
* * * * *
Questions and requests for assistance should be directed to the Information Agent (as described herein) at its address and telephone numbers
set forth below and on the back cover of this Offer to Purchase. Additional copies of this Offer to Purchase, the related Letter of Transmittal and other materials related to the Offer may also be obtained for free from the Information Agent.
Additionally, copies of this Offer to Purchase, the related Letter of Transmittal and any other material related to the Offer may be obtained at the website maintained by the Securities and Exchange Commission (the “SEC”) at
www.sec.gov. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance.
This
Offer to Purchase and the related Letter of Transmittal contain important information and you should read both carefully and in their entirety before making a decision with respect to the Offer.
The Offer has not been approved or disapproved by the SEC or any state securities commission, nor has the SEC or any state securities
commission passed upon the fairness or merits of or upon the accuracy or adequacy of the information contained in this Offer to Purchase. Any representation to the contrary is unlawful.
The Information Agent for the Offer is:
MacKenzie Partners, Inc.
105 Madison Avenue
New York, New
York 10016
212-929-5500 (Call Collect) or
CALL TOLL FREE 800-322-2885
Email:
tenderoffer@mackenziepartners.com
October 17, 2014
iii
TABLE OF CONTENTS
iv
SUMMARY TERM SHEET
The information contained in this summary term sheet is a summary only and is not meant to be a substitute for the more detailed description and
information contained in the Offer to Purchase, the Letter of Transmittal and other related materials. You are urged to read carefully the Offer to Purchase, the Letter of Transmittal and other related materials in their entirety. Actavis, Parent
and Purchaser have included cross-references in this summary term sheet to other sections of the Offer to Purchase where you will find more complete descriptions of the topics mentioned below. The information concerning Durata contained herein and
elsewhere in the Offer to Purchase has been provided to Actavis, Parent and Purchaser by Durata or has been taken from or is based upon publicly available documents or records of Durata on file with the United States Securities and Exchange
Commission (the “SEC”) or other public sources at the time of the Offer. Actavis, Parent and Purchaser have not independently verified the accuracy and completeness of such information.
| Securities Sought |
All issued and outstanding shares of common stock, par value $0.01 per share, of Durata Therapeutics, Inc. (the “Shares”). |
| Price Offered Per Share |
$23.00 per Share, net to the seller in cash, without interest and less any applicable withholding taxes (the “Cash Consideration”), plus one non-transferable contractual contingent value right per Share (each, a “CVR”), which
represents the right to receive the following cash payments, if any, in each case without interest and without any applicable withholding taxes, with each payment conditioned upon the achievement of the applicable milestone as follows:
(i) $1.00 per CVR payable by Parent if, prior to December 31, 2018, authorization is received that permits any Selling Entity (as defined in the CVR Agreement) to market and sell dalbavancin with approved labeling as a single dose infusion for
the treatment of adult patients with acute bacterial skin and skin structure infections, (ii) $1.00 per CVR payable by Parent if, prior to December 31, 2018, any Selling Entity receives approval from the European Medicines Agency (the
“EMA”) to market and sell dalbavancin in the European Union for the treatment of adult patients with acute bacterial skin and skin structure infections and (iii) $3.00 per CVR payable by Parent if the cumulative worldwide Net Revenues
(as defined in the CVR Agreement) during the period beginning on January 1, 2016 and ending on December 31, 2017, are equal to or exceed $600 million (the Cash Consideration plus one CVR are referred to collectively herein as the “Offer
Price”). |
| Scheduled Expiration of Offer |
End of the day, 12:00 midnight, New York City time, on November 14, 2014, unless the offer is extended or terminated. See Section 1 — “Terms of the Offer.” |
| Purchaser |
Delaware Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Actavis W.C. Holding Inc., and an indirect wholly owned subsidiary of Actavis plc, an Irish public limited company. |
Who is offering to purchase my shares?
Delaware Merger Sub, Inc., or Purchaser, a wholly owned subsidiary of Actavis W.C. Holding Inc., and an indirect wholly owned subsidiary of
Actavis plc, or Actavis, is offering to purchase for cash all of the issued and outstanding Shares. Purchaser is a Delaware corporation that was formed for the sole purpose of making the Offer and completing the process by which Purchaser will be
merged with and into Durata. See the “Introduction” and Section 8 — “Certain Information Concerning Parent and Purchaser.”
Unless the context indicates otherwise, in this Offer to Purchase, we use the terms
“us”, “we” and “our” to refer to Purchaser and, where appropriate, Parent. We use the term “Actavis” to refer to ACTAVIS plc alone, “Parent” to refer to Actavis W.C. Holding Inc. alone, the term
“Purchaser” to refer to Delaware Merger Sub, Inc. alone and the terms “Durata” and the “Company” to refer to Durata Therapeutics, Inc. alone.
What are the classes and amounts of securities sought in the Offer?
We are offering to purchase all of the outstanding Shares of Durata on the terms and subject to the conditions set forth in this Offer to
Purchase. Unless the context otherwise requires, in this Offer to Purchase we use the term “Offer” to refer to this offer and the term “Shares” to refer to shares of Durata common stock.
See the “Introduction” to this Offer to Purchase and Section 1 — “Terms of the Offer.”
Why are you making the Offer?
We are
making the Offer because we want to acquire the entire equity interest in Durata. If the Offer is consummated, pursuant to the Merger Agreement, Parent intends immediately thereafter to cause Purchaser to consummate the Merger (as described below).
Upon consummation of the Merger, Durata would cease to be a publicly traded company and would be a wholly owned subsidiary of Parent.
How much are you
offering to pay and what is the form of payment? Will I have to pay any fees or commissions?
We are offering to pay $23.00 per Share
net to the seller in cash, plus one CVR per Share, in each case without interest and less any applicable withholding taxes. If you are the record owner of your Shares and you tender your Shares to us in the Offer, you will not have to pay brokerage
fees, commissions or similar expenses. If you own your Shares through a broker or other nominee and your broker or other nominee tenders your Shares on your behalf, your broker or nominee may charge you a fee for doing so. You should consult your
broker or nominee to determine whether any charges will apply.
See the “Introduction,” Section 1 — “Terms of the
Offer” and Section 2 — “Acceptance for Payment and Payment for Shares.”
What is a CVR and how does it work?
A CVR represents the contractual right to receive cash, without interest thereon and less any applicable withholding taxes, upon the
achievement of certain specified milestones. Prior to the effective time of the Merger, Parent will enter into a Contingent Value Right Agreement (the “CVR Agreement”) with a rights agent, selected by Parent and reasonably acceptable to
Durata, governing the terms of the contingent consideration. Each CVR represents the right to receive the following cash payments, without interest thereon and less any applicable withholding taxes, with each payment conditioned upon the achievement
of the applicable milestone as follows:
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Each CVR holder will be entitled to receive $1.00 per CVR payable by Parent if, prior to December 31, 2018, authorization is received that permits any Selling Entity (as defined in the CVR Agreement) to market and
sell dalbavancin with approved labeling as a single dose infusion for the treatment of adult patients with acute bacterial skin and skin structure infections. |
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Each CVR holder will be entitled to receive $1.00 per CVR payable by Parent if prior to December 31, 2018, any Selling Entity receives approval from the European Medicines Agency to market and sell dalbavancin in
the European Union for the treatment of adult patients with acute bacterial skin and skin structure infections. |
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Each CVR holder will be entitled to receive $3.00 per CVR payable by Parent if the cumulative worldwide Net Revenues (as defined in the CVR Agreement) during the period beginning on January 1, 2016 and ending on
December 31, 2017, are equal to or exceed $600 million. |
See “Section 11 — The Merger Agreement; Other
Agreements” of this Offer to Purchase.
Is it possible that no payments will be payable to holders of Contingent Value Rights?
If none of the milestones above is achieved, no payment will become payable to holders of the CVRs. It is possible that none of the milestones
will be achieved, in which case you will receive only the Cash Consideration for any Shares you tender in the Offer and no payments with respect to your CVRs. It is not possible to predict whether a payment will or will not be payable with respect
to the CVRs.
May I transfer my Contingent Value Rights?
The CVRs will not be transferable except:
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upon death by will or intestacy or by instrument to an inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries upon the death of the trustee; |
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pursuant to a court order; |
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made by operation of law (including a consolidation or merger) or without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other
entity; or |
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in the case of CVRs payable to a nominee, from a nominee to a beneficial owner (and, if applicable, through an intermediary) or from such nominee to another nominee for the same beneficial owner, in each case as
allowable by the Depository Trust Company. |
See “Section 11 — The Merger Agreement; Other Agreements” of this
Offer to Purchase.
Are there other material terms of the contingent value rights?
In addition to the terms and conditions described above, the CVRs will not have any voting or dividend rights and will not represent any equity
or ownership in Actavis, Durata, Parent or us. No interest will accrue or be payable in respect of any of the amounts that may become payable on the CVRs.
See “Section 11 — The Merger Agreement; Other Agreements” of this Offer to Purchase.
Is there an agreement governing the Offer?
Yes. Parent, Purchaser and Durata have entered into an Agreement and Plan of Merger, dated as of October 5, 2014 (as it may be amended
from time to time, the “Merger Agreement”). The Merger Agreement provides, among other things, for the terms and conditions of the Offer and the subsequent merger of Purchaser with and into Durata (the “Merger”). If the Minimum
Condition is satisfied and we consummate the Offer, we intend to effect the Merger as promptly as practicable without any vote by the stockholders of Durata pursuant to Section 251(h) of the General Corporation Law of the State of Delaware (the
“DGCL”).
See Section 11 — “The Merger Agreement; Other Agreements” and Section 15 — “
Conditions of the Offer.”
Will you have the financial resources to make payment?
Yes. Consummation of the Offer is not subject to any financing condition. The total amount of funds required by Parent and Purchaser to
consummate the Offer and purchase all outstanding Shares in the Offer, provide funding for the Merger, provide funding for the payment in respect of outstanding in-the-money stock
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options and restricted stock and repay or refinance certain indebtedness of Durata is approximately $755 million, plus related fees and expenses. Parent and Purchaser anticipate funding such cash
requirements from Parent’s available cash and proceeds to be received from the existing credit facilities of Parent or its affiliates.
See Section 9 — “Source and Amount of Funds.”
Is your financial condition relevant to my decision to tender my Shares in the Offer?
No. We do not think our financial condition is relevant to your decision whether to tender Shares and accept the Offer because:
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the Offer is not subject to any financing condition; |
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if Purchaser consummates the Offer, it will acquire all remaining Shares for the same consideration in the Merger; |
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the Offer is being made for all outstanding Shares solely for cash (including the right to receive all amounts payable with respect to the CVRs, which will be paid in cash); and |
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Parent and/or one or more of its affiliates has, and will arrange for Purchaser to have, sufficient funds available to pay the Cash Consideration in respect of all Shares validly tendered in the Offer, and not properly
withdrawn, prior to the Expiration Date, to acquire the remaining outstanding Shares in the Merger and to pay all amounts payable with respect to the CVRs on the payment date(s) applicable thereto. |
How long do I have to decide whether to tender my Shares in the Offer?
You will have until the end of the day, 12:00 midnight, New York City time, on November 14, 2014, unless we extend the Offer pursuant to the
terms of the Merger Agreement (such date and time, as it may be extended in accordance with the terms of the Merger Agreement, the “Expiration Date”) or the Offer is earlier terminated. If you cannot deliver everything required to make a
valid tender to the Depositary (as described below) prior to such time, you may be able to use a guaranteed delivery procedure, which is described in Section 3 — “Procedures for Accepting the Offer and Tendering Shares.” Please
give your broker, dealer, commercial bank, trust company or other nominee instructions with sufficient time to permit such nominee to tender your Shares by the Expiration Date.
Acceptance for payment of Shares pursuant to and subject to the conditions of the Offer is referred to as the “Offer Closing,” and
the date and time at which such Offer Closing occurs is referred to as the “Acceptance Time.” The date and time at which the Merger becomes effective is referred to as the “Effective Time.”
See Section 1 — “Terms of the Offer” and Section 3 — “Procedures for Accepting the Offer and Tendering
Shares.”
Can the Offer be extended and under what circumstances?
Yes, the Offer can be extended. In certain circumstances, we are required to extend the Offer beyond the initial Expiration Date, but we will
not be required to extend the Offer beyond March 5, 2015 (the “Outside Date”).
We have agreed in the Merger Agreement
that, subject to our rights to terminate the Merger Agreement in accordance with its terms, Purchaser must extend the Offer (i) on one or more occasions, for successive periods (the length of such period to be determined by Purchaser) of not
more than 10 business days each (or for such longer period as Parent, Purchaser and the Company may agree) if at any scheduled Expiration Date any Offer Condition has not been satisfied or waived in order to permit the satisfaction of the Offer
Conditions and (ii) for
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any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer or the Schedule TO (as defined below). However, Purchaser is not required
to, and without Durata’s consent may not, extend the Offer beyond the Outside Date. If we extend the Offer, such extension will extend the time that you will have to tender (or withdraw) your Shares.
See Section 1 — “Terms of the Offer” of this Offer to Purchase for more details on our obligation and ability to extend
the Offer.
How will I be notified if the Offer is extended?
If we extend the Offer, we will inform Computershare Trust Company, N.A., which is the depositary and paying agent for the Offer (the
“Depositary”), of any extension and will issue a press release announcing the extension not later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date.
See Section 1 — “Terms of the Offer.”
What are the conditions to the Offer?
The Offer is conditioned upon the satisfaction or waiver of the following conditions (the “Offer Conditions”):
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there have been validly tendered and not validly withdrawn that number of Shares that, when added to the Shares then owned by Parent and its subsidiaries, equals one Share more than one half of all Shares then
outstanding (the “Minimum Condition”); |
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the expiration or termination of any applicable waiting period (or any extension thereof) under the HSR Act (the “HSR Condition”); |
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there is no law, regulation, order, injunction or decree enacted, enforced, amended, issued, in effect or deemed applicable to the Offer, by any governmental entity (other than the application of the waiting period
provisions of the HSR Act to the Offer) that is in effect, and that no governmental entity has taken any other action, in each case the effect of which is to make illegal or otherwise prohibit consummation of the Offer or the Merger (the
“Governmental Entity Condition”); |
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the Merger Agreement has not been terminated in accordance with its terms (the “Termination Condition”); |
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the accuracy of the representations and warranties made by the Company in the Merger Agreement, subject to the materiality and other qualifications set forth in the Merger Agreement (the “Representations
Condition”); |
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the performance or compliance of the Company in all material respects with all obligations, agreements and covenants required to be performed or complied with by it under the Merger Agreement (the “Covenants
Condition”); |
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since the date of the Merger Agreement, no change, state of facts, condition, event, circumstance, effect, occurrence or development has occurred that has had or would reasonably be expected to result in, individually
or in the aggregate, a Material Adverse Effect (as described below) (the “Material Adverse Effect Condition”); and |
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Purchaser has received a certificate of the Company, executed by the chief executive officer or the chief financial officer of the Company, dated as of the Expiration Date, to the effect that the Representations
Condition, the Covenants Condition and the Material Adverse Effect Condition have been satisfied. |
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The foregoing conditions are in addition to, and not a limitation of, the rights of Parent and Purchaser to
extend, terminate, amend and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement.
Parent and Purchaser
expressly reserve the right to waive, in whole or in part, any Offer Condition or modify the terms of the Offer. However, without the consent of Durata, we are not permitted to (i) decrease the Offer Price or change the form of consideration
payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer Conditions or amend any Offer Condition, (iv) waive or amend the Minimum
Condition, (v) amend any other term of the Offer in a manner that is adverse to the holders of Shares or (vi) extend the Expiration Date except as required or permitted by the Merger Agreement.
See Section 15 — “Conditions of the Offer.”
Have any Durata stockholders entered into agreements with Parent or its affiliates requiring them to tender their Shares?
Yes. In connection with the execution of the Merger Agreement, certain officers and directors of Durata and certain other beneficial owners of
Shares (collectively, the “Supporting Stockholders”) have entered into a Tender and Support Agreement, dated as of October 5, 2014, with Parent and Purchaser (the “Support Agreement”). Subject to the terms and conditions of
the Support Agreement, the Supporting Stockholders agree, among other things, subject to certain exceptions, to tender his, her or its Shares, pursuant to the Offer, Shares representing in the aggregate approximately 19% of Durata’s total
outstanding Shares as of October 5, 2014, and, subject to certain exceptions, not to transfer any of the Shares that are subject to the Support Agreement. See Section 11 — “The Merger Agreement; Other Agreements” in this
Offer to Purchase for a description of the Support Agreement.
How do I tender my Shares?
If you hold your Shares directly as the registered owner, you can (i) tender your Shares in the Offer by delivering the certificates
representing your Shares, together with a completed and signed Letter of Transmittal and any other documents required by the Letter of Transmittal, to the Depositary or (ii) tender your Shares by following the procedure for book-entry transfer
set forth in Section 3 of this Offer to Purchase, no later than the Expiration Date. If you are the registered owner but your stock certificate is not available or you cannot deliver it to the Depositary before the Offer expires, you may have a
limited amount of additional time by having a broker, a bank or other fiduciary that is an eligible institution guarantee that the missing items will be received by the Depositary within three NASDAQ trading days. For the tender to be valid,
however, the Depositary must receive the missing items within that three trading-day period. See Section 3 — “Procedures for Accepting the Offer and Tendering Shares” for further details. The Letter of Transmittal is enclosed
with this Offer to Purchase.
If you hold your Shares in street name through a broker, dealer, commercial bank, trust company or other
nominee, you must contact the institution that holds your Shares and give instructions that your Shares be tendered. You should contact the institution that holds your Shares for more details.
See Section 3 — “Procedures for Accepting the Offer and Tendering Shares.”
Until what time may I withdraw previously tendered Shares?
You may withdraw your previously tendered Shares at any time until the Expiration Date. In addition, pursuant to Section 14(d)(5) of the
Securities Exchange Act of 1934, as amended, Shares may be withdrawn at any time after December 16, 2014, which is the 60th day after the date of the commencement of the Offer, unless prior to that date Purchaser has accepted for payment the Shares
validly tendered in the Offer.
See Section 4 — “Withdrawal Rights.”
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How do I withdraw previously tendered Shares?
To withdraw previously tendered Shares, you must deliver a written notice of withdrawal, or a facsimile of one, with the required information
to the Depositary while you still have the right to withdraw Shares. If you tendered Shares by giving instructions to a broker, dealer, commercial bank, trust company or other nominee, you must instruct the broker, dealer, commercial bank, trust
company or other nominee to arrange for the withdrawal of your Shares.
See Section 4 — “Withdrawal Rights.”
What does the Durata board of directors think of the Offer?
The board of directors of Durata (which we refer to as the “Durata Board”), among other things, has (i) determined that the
Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, are advisable and fair to, and in the best interests of, Durata and its stockholders, (ii) approved the Merger Agreement and the transactions
contemplated thereby and declared that the Merger Agreement, the Offer, the Merger and the other transactions contemplated by the Merger Agreement are advisable and (iii) resolved to recommend that the stockholders of Durata accept the Offer
and tender all of their Shares pursuant to the Offer.
See the “Introduction” and Section 10 — “Background of the
Offer; Past Contacts or Negotiations with Durata.” A more complete description of the reasons for the Durata Board’s approval of the Offer and the Merger is set forth in a Solicitation/Recommendation Statement on Schedule 14D-9 that is
being mailed to all Durata stockholders together with this Offer to Purchase.
If the Offer is completed, will Durata continue as a public company?
No. Immediately following consummation of the Offer, we expect to complete the Merger pursuant to applicable provisions of Delaware
law, after which the Surviving Corporation will be a wholly owned subsidiary of Parent and the Shares will no longer be publicly traded.
See Section 13 — “Certain Effects of the Offer.”
Will the Offer be followed by the Merger if all of the Shares are not tendered in the Offer?
If we accept for payment all Shares tendered in the Offer, and accordingly acquire that number of Shares that, when added to the Shares then
owned by Parent and its subsidiaries, equals at least one Share more than one half of all Shares then outstanding, then, in accordance with the terms of the Merger Agreement, we will complete the Merger without a vote of the stockholders of Durata
pursuant to Section 251(h) of the DGCL. Pursuant to the Merger Agreement, if the Minimum Condition is not satisfied, we are not required (nor are we permitted) to accept the Shares for purchase in the Offer nor will we consummate the Merger.
Under the applicable provisions of the Merger Agreement, the Offer and the DGCL, stockholders of Durata (i) will not be required to
vote on the Merger, (ii) will be entitled to appraisal rights under Delaware law in connection with the Merger with respect to any Shares not tendered in the Offer and (iii) will, if they do not validly exercise appraisal rights under
Delaware law, receive the same Offer Price, without interest and less any applicable withholding taxes, for their Shares as was payable in the Offer (the “Merger Consideration”).
See Section 11 — “The Merger Agreement; Other Agreements,” Section 12 — “Purpose of the Offer; Plans for
Durata — Merger Without a Stockholder Vote” and Section 17 — “Appraisal Rights.”
What is the market value of my Shares
as of a recent date?
On October 3, 2014, the trading day before the public announcement of the execution of the Merger Agreement,
the reported closing sales price of the Shares on NASDAQ was $13.88. On October 16, 2014, the
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last full trading day before the commencement of the Offer, the reported closing sales price of the Shares on NASDAQ was $23.60. The Cash Consideration represents a 66% premium over the
October 3, 2014 closing stock price and a 69% premium over the volume weighted average price for the 30 trading days ended October 3, 2014.
See Section 6 — “Price Range of Shares; Dividends.”
Will I be paid a dividend on my Shares during the pendency of the Offer?
No. The Merger Agreement provides that from the date of the Merger Agreement to the Effective Time, without the prior written consent of
Parent, Durata will not declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of any Durata securities (including the Shares) or set a record date therefor.
See Section 6 — “Price Range of Shares; Dividends.”
Will I have appraisal rights in connection with the Offer?
No appraisal rights will be available to you in connection with the Offer. However, if we accept Shares in the Offer and the Merger is
completed, stockholders of Durata will be entitled to appraisal rights in connection with the Merger with respect to any Shares not tendered in the Offer, subject to and in accordance with Delaware law. Stockholders must properly perfect their right
to seek appraisal under Delaware law in connection with the Merger in order to exercise appraisal rights.
See Section 17 — “Appraisal
Rights.”
What will happen to my stock options in the Offer?
Pursuant to the Merger Agreement, each stock option to purchase Shares (“Company Option”) that is outstanding and unexercised
immediately prior to the Effective Time will vest in full and automatically be canceled and terminated as of the Effective Time in consideration for the right to receive (x) a cash payment, without interest and less the amount of any tax
withholding, equal to the product of (i) the total number of Shares underlying such Company Option and (ii) the excess, if any, of the Cash Consideration over the per Share exercise price of such Company Option and (y) one CVR for
each Share underlying such Company Option, without interest thereon and less the amount of any applicable withholding taxes.
See
Section 11 — “The Merger Agreement; Other Agreements — Merger Agreement — Treatment of Equity Awards.”
What will happen
to my restricted stock in the Offer?
Pursuant to the Merger Agreement, each share of restricted stock (“Company Restricted
Stock”) that is outstanding immediately prior to the Effective Time will fully vest and the restrictions thereon will lapse, and each such share of Company Restricted Stock will be canceled and converted into the right to receive (x) an
amount in cash equal to the Cash Consideration and (y) one CVR, in each case without interest and less the amount of any applicable tax withholding.
See Section 11 — “The Merger Agreement; Other Agreements — Merger Agreement — Treatment of Equity Awards.”
What are the United States federal income tax consequences of the Offer and the Merger?
The receipt of cash and CVRs in exchange for Shares pursuant to the Offer or the Merger will be a taxable transaction for U.S. federal income
tax purposes. The amount of gain or loss a holder recognizes, and the timing and character of such gain or loss, depend on the U.S. federal income tax treatment of the CVRs, with respect to which there is uncertainty.
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We urge you to consult your own tax advisor as to the particular tax consequences to you of the
receipt of cash and CVRs in exchange for Shares pursuant to the Offer or the Merger.
See Section 5 — “Certain United
States Federal Income Tax Consequences” for a more detailed discussion of the tax consequences of the Offer and the Merger.
Who should I call if
I have questions about the Offer?
You may call MacKenzie Partners, Inc. Toll-Free at 800-322-2885 or call collect at
(212) 929-5550. MacKenzie Partners, Inc. is acting as the information agent (the “Information Agent”) for our tender offer. See the back cover of this Offer to Purchase for additional contact information.
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INTRODUCTION
To the Holders of Shares of Common Stock of Durata Therapeutics, Inc.:
Delaware Merger Sub, Inc., a Delaware corporation (“Purchaser”), a wholly owned subsidiary of Actavis W.C. Holding Inc., a Delaware
corporation (“Parent”), and an indirect wholly owned subsidiary of Actavis plc, an Irish public limited company (“Actavis”), is offering to purchase all of the outstanding shares of common stock, par value $0.01 per share (the
“Shares”), of Durata Therapeutics, Inc., a Delaware corporation (the “Company” or “Durata”), upon the terms and subject to the conditions set forth in this Offer to Purchase (the “Offer to Purchase”) and in
the related Letter of Transmittal (the “Letter of Transmittal” which, together with this Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, constitutes the “Offer”).
The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of October 5, 2014 (as it may be amended from time to
time, the “Merger Agreement”), by and among Parent, Purchaser and Durata. The Merger Agreement provides, among other things, that following the consummation of the Offer and subject to the satisfaction or waiver of certain conditions,
Purchaser will be merged with and into Durata (the “Merger”) as soon as practicable without a vote of the stockholders of Durata in accordance with Section 251(h) of the General Corporation Law of the State of Delaware (the
“DGCL”), with Durata continuing as the surviving corporation (the “Surviving Corporation”) in the Merger and thereby becoming a wholly owned subsidiary of Parent. In the Merger, each Share outstanding immediately prior to the
effective time of the Merger (the “Effective Time”) (other than Shares held (i) in the treasury of Durata or by Parent, Purchaser or any of Parent’s other subsidiaries, which Shares will be canceled and will cease to exist or
(ii) by stockholders who validly exercise appraisal rights under Delaware law with respect to such Shares) will be automatically canceled and converted into the right to receive (a) $23.00 per Share, net to the seller in cash, without
interest and less any applicable withholding taxes (the “Cash Consideration”), plus (b) one non-transferable contractual contingent value right per Share (each, a “CVR”), which represents the right to receive the following
cash payments, if any, in each case without interest and without any applicable withholding taxes, with each payment conditioned upon the achievement of the applicable milestone as follows: (i) $1.00 per CVR payable by Parent if, prior to
December 31, 2018, authorization is received that permits any Selling Entity (as defined in the CVR Agreement) to market and sell dalbavancin with approved labeling as a single dose infusion for the treatment of adult patients with acute
bacterial skin and skin structure infections, (ii) $1.00 per CVR payable by Parent if, prior to December 31, 2018, any Selling Entity receives approval from the European Medicines Agency (the “EMA”) to market and sell dalbavancin
in the European Union for the treatment of adult patients with acute bacterial skin and skin structure infections, and (iii) $3.00 per CVR payable by Parent if the cumulative worldwide Net Revenues (as defined in the CVR Agreement) during the
period beginning on January 1, 2016 and ending on December 31, 2017, are equal to or exceed $600 million (the Cash Consideration plus one CVR are referred to collectively herein as the “Offer Price”). As a result of the Merger,
Durata will cease to be a publicly traded company and will become a wholly owned subsidiary of Parent. Under no circumstances will interest be paid on the purchase price for Shares, regardless of any extension of the Offer or any delay in making
payment for Shares. The Merger Agreement is more fully described in Section 11 — “The Merger Agreement; Other Agreements,” which also contains a discussion of the treatment of Durata stock options and restricted stock in the
Merger.
Tendering stockholders who are record owners of their Shares and who tender directly to Computershare Trust Company, N.A., the
depositary and paying agent for the Offer (the “Depositary”), will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in Instruction 6 of the Letter of Transmittal, stock transfer taxes with respect to
the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares through a broker, dealer, commercial bank, trust company or other nominee should consult such institution as to whether it charges any service fees or
commissions.
The Offer is conditioned upon, among other things, (a) the absence of a termination of the Merger Agreement in
accordance with its terms (the “Termination Condition”) and (b) the satisfaction of (i) the Minimum Condition (as described below), (ii) the HSR Condition (as described below) and (iii) the
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Governmental Entity Condition (as described below). The Minimum Condition requires that the number of Shares validly tendered (excluding Shares tendered pursuant to guaranteed delivery procedures
but not yet delivered) in accordance with the terms of the Offer and not validly withdrawn on or prior to the end of the day, 12:00 midnight, New York City time, on November 14, 2014 (the “Expiration Date”, unless Purchaser shall have
extended the period during which the Offer is open in accordance with the Merger Agreement, in which event “Expiration Date” shall mean the latest time and date at which the Offer, as so extended by Purchaser, shall expire), together with
any Shares then owned by Parent and its subsidiaries, equals one Share more than one half of all Shares then outstanding. The HSR Condition requires that any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder (the “HSR Act”), shall have expired or otherwise been terminated. Under the HSR Act, each of Actavis and Durata expects to file by October 20, 2014 a Premerger
Notification and Report Form with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) in connection with the purchase of Shares in the Offer. The Offer
may not be consummated until the expiration of a 15 calendar day waiting period following such filings, unless the waiting period is earlier terminated by the FTC and the Antitrust Division. If the 15 calendar day waiting period expires on a
Saturday, Sunday, or legal public holiday, the waiting period is automatically extended to the end of the next day that is not a Saturday, Sunday, or legal public holiday. If within the 15 calendar day waiting period either the FTC or the Antitrust
Division issues a request for additional information and documentary material, the waiting period with respect to the Offer would be extended until 10 calendar days following the date of substantial compliance by Parent with that request, unless the
FTC or the Antitrust Division terminates the additional waiting period before its expiration. After the expiration of such 10 calendar day waiting period, such waiting period may only be extended by court order or with the consent of Parent. The
Governmental Entity Condition requires that there be no law, regulation, order, injunction or decree enacted, enforced, amended, issued, in effect or deemed applicable to the Offer, by any governmental entity (other than the application of the
waiting period provisions of the HSR Act to the Offer) that is in effect, and that no governmental entity shall have taken any other action, in each case the effect of which is to make illegal or otherwise prohibit consummation of the Offer or the
Merger. The Offer is also subject to other conditions as described in this Offer to Purchase. See Section 15 — “Conditions of the Offer.” The Offer is not subject to any financing condition.
The Durata Board, among other things, has (i) determined that the Merger Agreement and the transactions contemplated thereby,
including the Offer and the Merger, are advisable and fair to, and in the best interests of, Durata and its stockholders, (ii) approved the Merger Agreement and the transactions contemplated thereby and declared that the Merger Agreement, the
Offer, the Merger and the other transactions contemplated by the Merger Agreement are advisable, and (iii) resolved to recommend that the stockholders of Durata accept the Offer and tender all of their Shares pursuant to the Offer.
A more complete description of the Durata Board’s reasons for authorizing and approving the Merger Agreement and the transactions
contemplated thereby, including the Offer and the Merger, is set forth in the Solicitation/Recommendation Statement on Schedule 14D-9 of Durata (together with any exhibits and annexes attached thereto, the “Schedule 14D-9”), that is being
furnished to stockholders in connection with the Offer, together with this Offer to Purchase. Stockholders should carefully read the information set forth in the Schedule 14D-9, including the information to be set forth under the sub-heading
“Background and Reasons for the Company Board’s Recommendation.”
Durata has advised Parent that, as of October 14,
2014, (i) 26,790,203 Shares were issued and outstanding and (ii) an aggregate of 4,066,083 Shares were reserved for issuance pursuant to outstanding awards and rights under the Durata Stock Incentive Plan or the Amended and Restated 2012
Stock Incentive Plan, of which 4,062,867 Shares were underlying outstanding and unexercised options to purchase Shares (“Company Options”) and 3,216 Shares were underlying unvested awards of restricted stock awarded pursuant to the Durata
Stock Incentive Plan or the Amended and Restated 2012 Stock Incentive Plan (“Company Restricted Stock”). Based upon the foregoing, the Minimum Condition would be satisfied if at least 13,396,710 Shares are validly tendered and not validly
withdrawn prior to the expiration of the Offer.
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In connection with the execution of the Merger Agreement, certain officers and directors of
Durata and certain other beneficial owners of Shares (collectively, the “Supporting Stockholders”) have entered into a Tender and Support Agreement, dated as of October 5, 2014, with Parent and Purchaser (the “Support
Agreement”). Subject to the terms and conditions of the Support Agreement, the Supporting Stockholders agree, among other things, subject to certain exceptions, to tender his, her of its Shares, pursuant to the Offer, Shares representing in the
aggregate approximately 19% of Durata’s total outstanding Shares as of October 5, 2014, and, subject to certain exceptions, not to transfer any of the Shares that are subject to the Support Agreement.
Pursuant to the Merger Agreement, the board of directors of the Surviving Corporation effective as of, and immediately following, the
Effective Time will consist of the members of the board of directors of Purchaser immediately prior to the Effective Time, and the officers of the Surviving Corporation will consist of the officers of Purchaser immediately prior to the Effective
Time, in each case unless Parent in its sole discretion elects prior to the Effective Time to appoint other persons to such positions.
This Offer to Purchase does not constitute a solicitation of proxies, and Purchaser is not soliciting proxies in connection with the Offer or
the Merger. If the Minimum Condition is satisfied and Purchaser consummates the Offer, Purchaser will consummate the Merger pursuant to Section 251(h) of the DGCL without a vote of the stockholders of Durata.
Certain United States federal income tax consequences of the exchange of Shares for cash and CVRs pursuant to the Offer or the Merger are
described in Section 5 — “Certain United States Federal Income Tax Consequences.”
Under the applicable provisions of
the Merger Agreement, the Offer and the DGCL, stockholders of Durata will be entitled to appraisal rights under Delaware law in connection with the Merger with respect to any Shares not tendered in the Offer, subject to and in accordance with the
DGCL. Stockholders must properly perfect their right to seek appraisal under Delaware law in connection with the Merger in order to exercise appraisal rights. See Section 17 — “Appraisal Rights.”
This Offer to Purchase, the related Letter of Transmittal and the other related materials contain important information that should be read
carefully before any decision is made with respect to the Offer.
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THE TENDER OFFER
Upon the terms and subject to the conditions of the Offer
(including, if the Offer is extended or amended, the terms and conditions of such extension or amendment), we will accept for payment and promptly pay for all Shares validly tendered prior to the Expiration Date and not properly withdrawn as
permitted under Section 4 — “Withdrawal Rights.”
Acceptance for payment of Shares pursuant to and subject to the
conditions of the Offer will occur on November 17, 2014 (the “Offer Closing”), unless we extend the Offer pursuant to the terms of the Merger Agreement. The date and time at which such Offer Closing occurs is referred to as the
“Acceptance Time”.
The Offer is conditioned upon, among other things, the absence of a termination of the Merger Agreement in
accordance with its terms and the satisfaction of the Minimum Tender Condition, the HSR Condition, the Governmental Entity Condition and the other conditions described in Section 15 — “Conditions of the Offer.”
We have agreed in the Merger Agreement that, subject to our rights to terminate the Merger Agreement in accordance with its terms, Purchaser
must extend the Offer (i) on one or more occasions, for successive periods (the length of such period to be determined by Purchaser) of not more than 10 business days each (or for such longer period as Parent, Purchaser and the Company may
agree) if at any scheduled Expiration Date any Offer Condition has not been satisfied or waived, in order to permit the satisfaction of the Offer Conditions and (ii) for any period required by any rule, regulation, interpretation or position of
the SEC or its staff applicable to the Offer or the Schedule TO (as defined below). If we extend the Offer, such extension will extend the time that you will have to tender (or withdraw) your Shares. Purchaser will not be required, or permitted
without the Company’s consent, to extend the Offer beyond March 5, 2015 (the “Outside Date”).
Subject to the
applicable rules and regulations of the SEC, Purchaser expressly reserves the right to waive, in whole or in part, any Offer Condition or modify the terms of the Offer. However, without the consent of Durata, we are not permitted to
(i) decrease the Offer Price or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer Conditions or
amend any Offer Condition, (iv) waive or amend the Minimum Condition, (v) amend any other term of the Offer in a manner that is adverse to the holders of Shares or (vi) extend the Expiration Date except as required or permitted by the
Merger Agreement.
Any extension, delay, termination or amendment of the Offer will be followed as promptly as practicable by public
announcement thereof, and such announcement in the case of an extension will be made no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. Without limiting the manner in which Purchaser
may choose to make any public announcement, it currently intends to make announcements regarding the Offer by issuing a press release and making any appropriate filing with the SEC.
If we extend the Offer, are delayed in our acceptance for payment of or payment for Shares (whether before or after our acceptance for payment
for Shares) or are unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to our rights under the Offer and the Merger Agreement, the Depositary may retain tendered Shares on our behalf, and such Shares may
not be withdrawn except to the extent that tendering stockholders are entitled to withdrawal rights as described herein under Section 4 — “Withdrawal Rights.” However, our ability to delay the payment for Shares that we have
accepted for payment is limited by Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which requires us to pay the consideration offered or return the securities deposited by or on behalf of
stockholders promptly after the termination or withdrawal of the Offer.
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If we make a material change in the terms of the Offer or the information concerning the Offer or
if we waive a material condition of the Offer, we will disseminate additional tender offer materials and extend the Offer if and to the extent required by Rules 14d-4(d)(1), 14d-6(c) and 14e-1 under the Exchange Act. The minimum period during which
an offer must remain open following material changes in the terms of the Offer or information concerning the Offer, other than a change in price or a change in percentage of securities sought, will depend upon the facts and circumstances, including
the relative materiality of the terms or information changes. We understand that in the SEC’s view, an offer should remain open for a minimum of five business days from the date the material change is first published, sent or given to
stockholders, and with respect to a change in price or a change in percentage of securities sought, a minimum 10 business day period generally is required to allow for adequate dissemination to stockholders and investor response.
If, on or before the Expiration Date, we increase the consideration being paid for Shares accepted for payment in the Offer, such increased
consideration will be paid to all stockholders whose Shares are purchased in the Offer, whether or not such Shares were tendered before the announcement of the increase in consideration.
There will not be a subsequent offering period for the Offer.
We expressly reserve the right, in our sole discretion, subject to the terms and conditions of the Merger Agreement and the applicable rules
and regulations of the SEC, not to accept for payment any Shares if, at the Expiration Date, any of the Offer Conditions have not been satisfied. See Section 15 — “Conditions of the Offer.” Under certain circumstances, we may
terminate the Merger Agreement and the Offer. See Section 11 — “The Merger Agreement; Other Agreements — Merger Agreement — Termination.”
As soon as practicable following the Acceptance Time, in accordance with the terms of the Merger Agreement, we will complete the Merger
without a vote of the stockholders of Durata pursuant to Section 251(h) of the DGCL.
Durata has provided us with its stockholder
list and security position listings for the purpose of disseminating this Offer to Purchase, the related Letter of Transmittal and other related materials to holders of Shares. This Offer to Purchase, the related Letter of Transmittal and other
related materials will be mailed to record holders of Shares whose names appear on the stockholder list of Durata and will be furnished, for subsequent transmittal to beneficial owners of Shares, to brokers, dealers, commercial banks, trust
companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing for subsequent transmittal to
beneficial owners of Shares.
| 2. |
Acceptance for Payment and Payment for Shares. |
Subject to the satisfaction or waiver of
all the conditions to the Offer set forth in Section 15 — “Conditions of the Offer,” we will accept for payment and promptly pay for Shares validly tendered and not properly withdrawn pursuant to the Offer on or after the
Expiration Date. Subject to compliance with Rule 14e-1(c) under the Exchange Act, we expressly reserve the right to delay payment for Shares in order to comply in whole or in part with any applicable law, including, without limitation, the HSR Act.
See Section 16 — “Certain Legal Matters; Regulatory Approvals.”
In all cases, we will pay for Shares tendered and
accepted for payment pursuant to the Offer only after timely receipt by the Depositary of (i) the certificates evidencing such Shares (the “Share Certificates”) or confirmation of a book-entry transfer of such Shares (a
“Book-Entry Confirmation”) into the Depositary’s account at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in Section 3 — “Procedures for Accepting the Offer and Tendering
Shares,” (ii) the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed, with any required signature guarantees or, in the case of a book-entry transfer, an Agent’s Message (as described
below) in lieu of the Letter of Transmittal and
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(iii) any other documents required by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when Share Certificates or Book-Entry
Confirmations with respect to Shares are actually received by the Depositary.
The term “Agent’s Message” means a message,
transmitted by DTC to and received by the Depositary and forming a part of a Book-Entry Confirmation, that states that DTC has received an express acknowledgment from the participant in DTC tendering the Shares that are the subject of such
Book-Entry Confirmation, that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that Purchaser may enforce such agreement against such participant.
On the terms of and subject to the Offer Conditions, promptly after the Expiration Date of the Offer, we will accept for payment, and pay for,
all Shares validly tendered to us in the Offer and not validly withdrawn on or prior to the Expiration Date of the Offer. For purposes of the Offer, we will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and
not properly withdrawn as, if and when we give oral or written notice to the Depositary of our acceptance for payment of such Shares pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for
payment pursuant to the Offer will be made by deposit of the aggregate Cash Consideration for such Shares with the Depositary, which will act as paying agent for tendering stockholders for the purpose of receiving payments from us and transmitting
such payments to tendering stockholders whose Shares have been accepted for payment. If we extend the Offer, are delayed in our acceptance for payment of Shares or are unable to accept Shares for payment pursuant to the Offer for any reason, then,
without prejudice to our rights under the Offer and the Merger Agreement, the Depositary may retain tendered Shares on our behalf, and such Shares may not be withdrawn except to the extent that tendering stockholders are entitled to withdrawal
rights as described herein under Section 4 — “Withdrawal Rights” and as otherwise required by Rule 14e-1(c) under the Exchange Act. Under no circumstances will we pay interest on the purchase price for Shares by reason of any
extension of the Offer or any delay in making such payment for Shares.
If any tendered Shares are not accepted for payment for any reason
pursuant to the terms and conditions of the Offer, or if Share Certificates are submitted evidencing more Shares than are tendered, Share Certificates evidencing unpurchased Shares will be returned, without expense to the tendering stockholder (or,
in the case of Shares tendered by book-entry transfer into the Depositary’s account at DTC pursuant to the procedure set forth in Section 3 — “Procedures for Accepting the Offer and Tendering Shares,” such Shares will be
credited to an account maintained at DTC), promptly following the expiration or termination of the Offer.
| 3. |
Procedures for Accepting the Offer and Tendering Shares. |
Valid Tenders. In order
for a stockholder to validly tender Shares pursuant to the Offer, the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed, together with any required signature guarantees (or, in the case of a
book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal) and any other documents required by the Letter of Transmittal must be received by the Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase and either (a) the Share Certificates evidencing tendered Shares must be received by the Depositary at such address or (b) such Shares must be tendered pursuant to the procedure for book-entry transfer described below and a
Book-Entry Confirmation must be received by the Depositary, in each case prior to the Expiration Date.
Book-Entry Transfer. The
Depositary will establish an account with respect to the Shares at DTC for purposes of the Offer within two business days after the date of this Offer to Purchase. Any financial institution that is a participant in the system of DTC may make a
book-entry delivery of Shares by causing DTC to transfer such Shares into the Depositary’s account at DTC in accordance with DTC’s procedures for such transfer. However, although delivery of Shares may be effected through book-entry
transfer at DTC, either the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed, together with any required signature guarantees, or an Agent’s Message in lieu of the Letter of Transmittal, and
any other required
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documents, must, in any case, be received by the Depositary at one of its addresses set forth on the back cover of this Offer to Purchase prior to the Expiration Date. Delivery of documents to
DTC does not constitute delivery to the Depositary.
Guaranteed Delivery. If you wish to tender Shares pursuant to the Offer and
cannot deliver such Shares and all other required documents to the Depositary by the Expiration Date or cannot complete the procedure for delivery by book-entry transfer on a timely basis, you may nevertheless tender such Shares if all of the
following conditions are met:
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such tender is made by or through an Eligible Institution (as defined below); |
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a properly completed and duly executed Notice of Guaranteed Delivery in the form provided by us with this Offer to Purchase is received by the Depositary (as provided below) by the Expiration Date; and
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the certificates for all such validly tendered Shares (or a confirmation of a book-entry transfer of such Shares into the Depositary’s account at the Book-Entry Transfer Facility), together with a properly
completed and duly executed Letter of Transmittal together with any required signature guarantee (or an Agent’s Message) and any other required documents, are received by the Depositary within three (3) NASDAQ trading days after the date
of execution of the Notice of Guaranteed Delivery. |
The Notice of Guaranteed Delivery may be transmitted by overnight
courier or mail to the Depositary and must include a guarantee by an Eligible Institution (as defined below) in the form set forth in such Notice. Shares tendered by a Notice of Guaranteed Delivery will not be deemed validly tendered for purposes of
satisfying the Minimum Condition unless and until Shares underlying such Notice of Guaranteed Delivery are delivered to the Depositary prior to the Expiration Date.
Guarantee of Signatures. No signature guarantee is required on the Letter of Transmittal (i) if the Letter of Transmittal is
signed by the registered holder(s) (which term, for purposes of this Section 3, includes any participant in DTC’s systems whose name appears on a security position listing as the owner of the Shares) of the Shares tendered therewith,
unless such registered holder has completed either the box entitled “Special Payment Instructions” or the box entitled “Special Delivery Instructions” on the Letter of Transmittal or (ii) if the Shares are tendered for the
account of a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a member in good standing of the Securities Transfer Agents Medallion Program or any other “eligible guarantor
institution” as such term is defined in Rule 17Ad-15 of the Exchange Act (each, an “Eligible Institution” and, collectively, “Eligible Institutions”). In all other cases, all signatures on a Letter of Transmittal must be
guaranteed by an Eligible Institution. See Instruction 1 of the Letter of Transmittal. If a Share Certificate is registered in the name of a person or persons other than the signer of the Letter of Transmittal, or if payment is to be made or
delivered to, or a Share Certificate not accepted for payment or not tendered is to be issued in, the name of a person other than the registered holder, then the Share Certificate must be endorsed or accompanied by duly executed stock powers, in
either case signed exactly as the name of the registered holder appears on the Share Certificate, with the signature on such Share Certificate or stock powers guaranteed by an Eligible Institution as provided in the Letter of Transmittal. See
Instructions 1 and 5 of the Letter of Transmittal.
Notwithstanding any other provision of this Offer, payment for Shares accepted
pursuant to the Offer will in all cases only be made after timely receipt by the Depositary of (i) Share Certificates evidencing such Shares or a Book-Entry Confirmation of a book-entry transfer of such Shares into the Depositary’s account
at DTC pursuant to the procedures set forth in this Section 3, (ii) the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed, with any required signature guarantees or, in the case of a
book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal and (iii) any other documents required by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when Share
Certificates or Book-Entry Confirmations with respect to Shares are actually received by the Depositary.
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The method of delivery of Share Certificates, the Letter of Transmittal and all other required
documents, including delivery through DTC, is at the option and risk of the tendering stockholder, and the delivery of all such documents will be deemed made (and the risk of loss and the title of Share Certificates will pass) only when actually
received by the Depositary (including, in the case of a book-entry transfer, receipt of a Book-Entry Confirmation). If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient
time should be allowed to ensure timely delivery prior to the Expiration Date.
Irregularities. The tender of Shares pursuant
to any one of the procedures described above will constitute the tendering stockholder’s acceptance of the Offer, as well as the tendering stockholder’s representation and warranty that such stockholder has the full power and authority to
tender and assign the Shares tendered, as specified in the Letter of Transmittal. Our acceptance for payment of Shares tendered pursuant to the Offer will constitute a binding agreement between the tendering stockholder and us upon the terms and
subject to the conditions of the Offer (and if the Offer is extended or amended, the terms of or the conditions to any such extension or amendment).
Determination of Validity. All questions as to the validity, form, eligibility (including time of receipt) and acceptance for payment
of any tender of Shares will be determined by us, in our sole discretion. We reserve the absolute right to reject any and all tenders determined by us not to be in proper form or the acceptance for payment of which may, in the opinion of our
counsel, be unlawful. We also reserve the absolute right to waive any defect or irregularity in the tender of any Shares of any particular stockholder, whether or not similar defects or irregularities are waived in the case of other stockholders. No
tender of Shares will be deemed to have been validly made until all defects and irregularities have been waived or cured within such time as Purchaser shall determine. None of Purchaser, Parent, Actavis, the Depositary, the Information Agent or any
other person will be under any duty to give notice of any defects or irregularities in tenders or incur any liability for failure to give any such notice. Interpretation of the terms and conditions of the Offer (including the Letter of Transmittal
and the instructions thereto) will be determined by us in our sole discretion.
Appointment. By executing the Letter of Transmittal
as set forth above, the tendering stockholder will irrevocably appoint designees of Purchaser as such stockholder’s attorneys-in-fact and proxies in the manner set forth in the Letter of Transmittal, each with full power of substitution, to the
full extent of such stockholder’s rights with respect to the Shares tendered by such stockholder and accepted for payment by Purchaser and with respect to any and all other Shares or other securities or rights issued or issuable in respect of
such Shares. All such powers of attorney and proxies will be considered irrevocable and coupled with an interest in the tendered Shares. Such appointment will be effective when, and only to the extent that, we accept for payment Shares tendered by
such stockholder as provided herein. Upon such appointment, all prior powers of attorney, proxies and consents given by such stockholder with respect to such Shares or other securities or rights will, without further action, be revoked and no
subsequent powers of attorney, proxies, consents or revocations may be given by such stockholder (and, if given, will not be deemed effective). The designees of Purchaser will thereby be empowered to exercise all voting and other rights with respect
to such Shares and other securities or rights, including, without limitation, in respect of any annual, special or adjourned meeting of the Company’s stockholders, actions by written consent in lieu of any such meeting or otherwise, as they in
their sole discretion deem proper. We reserve the right to require that, in order for Shares to be deemed validly tendered, immediately upon our acceptance for payment of such Shares, Purchaser or its designees must be able to exercise full voting,
consent and other rights with respect to such Shares and other related securities or rights, including voting at any meeting of the Company’s stockholders.
Information Reporting and Backup Withholding. Payments made to a stockholder upon such stockholder’s exchange of Shares pursuant
to the Offer or the Merger may be subject to information reporting, and the cash consideration paid to a holder of Shares may be subject to backup withholding (currently at the rate of 28%). In addition, payments with respect to a CVR may be subject
to information reporting and backup withholding. A U.S. holder (as defined below in Section 5 — “Material United States Federal Income Tax Consequences”) will not be subject to backup withholding if, assuming the applicable
withholding agent has not received notice from
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the IRS that such backup withholding is otherwise required with respect to such holder, the U.S. holder (i) (A) furnishes a correct TIN and complies with certain certification procedures
(generally, by providing a properly completed and executed IRS Form W-9 certifying that the holder is not subject to backup withholding, the form for which will be included with the applicable Letter(s) of Transmittal to be returned to the
Depositary); or (B) otherwise establishes to the satisfaction of the Depositary that such U.S. holder is exempt from backup withholding tax and (ii) with respect to payments on the CVRs, provides the rights agent with a certification described in
clause (i)(A) of this sentence or otherwise establishes an exemption from backup withholding tax.
A non-U.S. holder (as defined below in
Section 5 — “Material United States Federal Income Tax Consequences”) will not be subject to backup withholding if the non-U.S. holder certifies to the applicable withholding agents its exempt status by providing a properly executed
IRS Form W-8 (typically, form W-8BEN for individuals or Form W-8-BEN-E for entities). Non-U.S. holders should consult their own tax advisors to determine which Form W-8 is appropriate.
Backup withholding is not an additional tax, and any amounts withheld under the backup withholding rules from a payment to a stockholder
generally will be allowed as a refund or credit against such holder’s U.S. federal income tax liability, provided that such stockholder timely and properly furnishes the required information to the IRS.
Shares tendered pursuant to the Offer may be withdrawn at any time
prior to the end of the day, 12:00 midnight, New York City time, on the Expiration Date and, unless theretofore accepted for payment by Purchaser pursuant to the Offer, may also be withdrawn at any time after December 16, 2014, which is the
60th day after the date of the commencement of the Offer.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at one of its addresses set forth on the back cover page of this Offer to Purchase. Any such notice of withdrawal must specify the name of the person who tendered the Shares
to be withdrawn, the number of Shares to be withdrawn and the name of the registered holder of such Shares, if different from that of the person who tendered such Shares. If Share Certificates evidencing Shares to be withdrawn have been delivered or
otherwise identified to the Depositary, then, prior to the physical release of such Share Certificates, the serial numbers shown on such Share Certificates must be submitted to the Depositary and the signature(s) on the notice of withdrawal must be
guaranteed by an Eligible Institution, unless such Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedure for book-entry transfer as set forth in Section 3 —
“Procedures for Accepting the Offer and Tendering Shares,” any notice of withdrawal must also specify the name and number of the account at DTC to be credited with the withdrawn Shares.
Withdrawals of Shares may not be rescinded. Any Shares properly withdrawn will thereafter be deemed not to have been validly tendered for
purposes of the Offer. However, withdrawn Shares may be re-tendered by again following one of the procedures described in Section 3 — “Procedures for Accepting the Offer and Tendering Shares” at any time prior to the Expiration
Date.
We will determine, in our sole discretion, all questions as to the form and validity (including time of receipt) of any notice
of withdrawal and our determination will be final and binding. None of Purchaser, Parent, the Depositary, the Information Agent or any other person will be under any duty to give notice of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give any such notification.
| 5. |
Certain United States Federal Income Tax Consequences. |
The following is a summary of
certain (1) U.S. federal income tax consequences of the Offer and the Merger to stockholders whose Shares are exchanged for cash and CVRs in the Offer or Merger, (2) U.S. federal income tax considerations related to the ownership of CVRs by
stockholders who receive CVRs in the Offer or the Merger and (3) U.S. federal income tax consequences to U.S. holders (as defined below) of Shares who
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properly perfect appraisal rights. This summary is for general information only and is not tax advice. This summary does not purport to consider all aspects of U.S. federal income taxation that
might be relevant to holders of Shares or CVRs. This summary is based on the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), applicable U.S. Treasury Regulations, judicial authority, and administrative rulings and
practice as in effect on the date hereof, all of which are subject to differing interpretation and to change, possibly with retroactive effect.
For purposes of this summary, the term “U.S. holder” refers to a beneficial owner of Shares or CVRs, as applicable, that is:
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a citizen or individual resident of the United States for U.S. federal income tax purposes; |
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a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the United States, any state thereof or the District of Columbia;
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an estate, the income of which is subject to U.S. federal income tax regardless of its source; or |
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a trust if a court within the United States is able to exercise primary jurisdiction over its administration and one or more U.S. persons have authority to control all of its substantial decisions, or if the trust has a
valid election in effect under applicable Treasury regulations to be treated as a U.S. person. |
A “non-U.S.
holder” is a beneficial owner of Shares that is an individual, corporation (or other entity taxable as a corporation), estate or trust and is not a U.S. holder.
If any entity that is treated as a partnership for U.S. federal tax purposes holds Shares or CVRs, the tax treatment of its partners or
members generally will depend upon the status of the partner or member and the activities of the entity. Holders that are partnerships for U.S. federal income tax purposes, and partners in such partnerships, should consult their own tax advisors
regarding the tax consequences to them of the Offer and the Merger, the ownership of CVRs and the perfection of appraisal rights, as applicable.
This summary assumes that a holder holds its Shares, and that a holder will hold its CVRs, as capital assets within the meaning of Section
1221 of the Code (generally, property held for investment). This summary does not address all aspects of U.S. federal income tax that may be relevant to a holder of Shares or CVRs in light of its particular circumstances, or that may apply to a
holder that is subject to special treatment under the U.S. federal income tax laws (including, for example, banks, insurance companies, dealers or traders in securities, U.S. holders that have a functional currency other than the U.S. dollar,
tax-exempt organizations (including private foundations), retirement plans, real estate investment trusts, mutual funds, subchapter S corporations, partnerships or other pass-through entities for U.S. federal income tax purposes, controlled foreign
corporations, passive foreign investment companies, certain expatriates, persons who hold Shares or CVRs as part of a hedge, straddle, constructive sale, conversion or other integrated transaction and persons who acquired their Shares or CVRs
pursuant to or in connection with options or other compensation arrangements). In addition, this summary does not address any aspect of state, local, foreign, estate, gift or alternative minimum tax law that may apply to holders of Shares or CVRs.
No ruling has been or will be sought from the U.S. Internal Revenue Service (the “IRS”) with respect to any of the U.S. federal
tax considerations discussed below, and no assurance can be given that the IRS will not take a position contrary to the discussion below.
This summary is intended only as a general summary of certain U.S. federal income tax consequences to a stockholder related to the exchange
of Shares for cash and CVRs pursuant to the Offer or the Merger, the ownership of CVRs and the perfection of appraisal rights, as applicable, and is not intended to constitute a complete description of all such tax consequences. Stockholders are
urged to consult their own tax advisors with respect to the specific tax consequences to them in light of their own particular circumstances, including with respect to any U.S. federal estate, gift and other non-income tax consequences and any
state, local or foreign tax consequences of such transactions.
U.S. Holders
Receipt of Cash and CVRs. The receipt of cash and CVRs by a U.S. holder in exchange for Shares pursuant to the Offer or the Merger will
be a taxable transaction for U.S. federal income tax purposes. The amount of gain
19
or loss a U.S. holder recognizes, and the timing and character of such gain or loss, depends on the U.S. federal income tax treatment of the CVRs, with respect to which there is uncertainty. The
installment method of reporting any gain attributable to receipt of a CVR generally will not be available with respect to the disposition of Shares pursuant to the Offer or the Merger because the Shares are traded on an established securities
market.
There is no legal authority directly addressing the U.S. federal income tax treatment of the receipt of the CVRs in connection
with the Offer or the Merger, as the case may be. The receipt of the CVRs as part of the transaction consideration might be treated as a “closed transaction” or as an “open transaction” for U.S. federal income tax purposes.
Pursuant to U.S. Treasury Regulations dealing with contingent payment obligations analogous to the CVRs, if the fair market value of the CVRs is “reasonably ascertainable,” a U.S. holder should treat the transaction as a “closed
transaction” and treat the fair market value of the CVRs as part of the consideration received in the Offer or the Merger for purposes of determining gain or loss. On the other hand, if the fair market value of the CVRs cannot be reasonably
ascertained, a U.S. holder should treat the transaction as an open transaction for purposes of determining gain or loss. These Regulations state that only in “rare and extraordinary” cases would the value of contingent payment obligations
not be reasonably ascertainable. Although the matter is not free from doubt, Parent intends to treat the transaction as an open transaction for U.S. federal income tax purposes, and, unless otherwise indicated, the remainder of this discussion
assumes that the transaction will be so treated. U.S. holders should consult their own tax advisors for further information regarding the treatment of the Offer or the Merger as an open or closed transaction.
Assuming that the transaction is treated as an “open transaction” for U.S. federal income tax purposes, the fair market value of the
CVRs would not be treated as additional consideration for the Shares at the time the CVRs are received in the Offer or the Merger, as the case may be, and the U.S. holder would have no tax basis in the CVRs. Instead, the U.S. holder would take
payments under the CVRs into account when made or deemed made in accordance with the U.S. holder’s regular method of accounting for U.S. federal income tax purposes. A portion of such payments would be treated as interest income under Section
483 of the Code (as discussed below) and the balance, in general, as additional consideration for the disposition of the Shares. Payments of cash pursuant to the Offer or Merger, plus the portion of payments on the CVRs not treated as imputed
interest, will generally first be applied to reduce a U.S. holder’s adjusted tax basis in the Shares. A U.S. holder will then recognize gain to the extent of any cash received pursuant to the Offer or the Merger or the portion of CVR payments
not treated as imputed interest received after the U.S. holder’s adjusted tax basis has been reduced to zero. A U.S. holder will recognize loss to the extent of any remaining basis after the basis reduction described in the previous sentence,
although it is possible that such holder may not be able to recognize such loss until the resolution of all contingencies under the CVRs or possibly until such holder’s abandonment of the holder’s CVRs. Gain or loss recognized in the
transaction must be determined separately for each identifiable block of Shares (i.e., Shares acquired at the same cost in a single transaction). Any such gain or loss will be long-term if the Shares were held for more than one year prior to such
disposition. The deductibility of capital losses is subject to certain limitations.
Parent intends to treat a portion of any payment with
respect to the CVRs as imputed interest taxable as ordinary income under Section 483 of the Code. The portion of any payment made with respect to a CVR treated as imputed interest under Section 483 of the Code will be determined at the time such
payment is made and generally should equal the excess of (1) the amount of the CVR payment over (2) the present value of such amount as of the closing of the Offer or the Effective Time, as the case may be, calculated using the applicable federal
rate as the discount rate. A U.S. holder must include in its taxable income interest imputed pursuant to Section 483 of the Code using such holder’s regular method of accounting for U.S. federal income tax purposes.
If, contrary to the discussion above, the receipt of the CVRs is treated as, or determined to be, part of a closed transaction for U.S.
federal income tax purposes, then a U.S. holder of Shares generally would recognize capital gain or loss, if any, in the same manner as if the transaction were an open transaction, except that a U.S. holder would take into account the
“reasonably ascertainable” fair market value of the CVRs, determined on the date of the consummation of the Offer or the Merger, as applicable, as an additional amount realized for purposes of calculating gain or loss with respect to the
exchange of Shares pursuant to the Merger. A U.S. holder’s initial tax basis in a CVR received in either the Offer or the Merger would equal the fair market value of such CVR as
20
determined for U.S. federal income tax purposes. The holding period for a CVR would begin on the day following the date of the closing of the Offer or the Effective Time, as the case may be.
There is no authority directly addressing the U.S. federal income tax treatment of receiving payments on the CVRs and, therefore, the amount, timing and character of any gain, income or loss with respect to the CVRs would be uncertain. For example,
payments with respect to the CVRs could be treated as payments with respect to a sale or exchange of a capital asset or as giving rise to ordinary income. In addition, it is unclear how a U.S. holder of the CVRs would recover its adjusted tax basis
with respect to payments thereon.
Perfection of Appraisal Rights. The above discussion does not apply to U.S. holders of Shares
who properly perfect appraisal rights. Generally, a U.S. holder of Shares who perfects appraisal rights with respect to such U.S. holder’s Shares will recognize capital gain or loss equal to the difference between the amount of cash received in
exchange for those Shares and such U.S. holder’s tax basis in those Shares, except that a portion of the cash received may be taxable as interest.
Medicare Contribution Tax. A Medicare contribution tax is imposed at the rate of 3.8% on all or a portion of the “net investment
income” of U.S. individuals, estates, and trusts with income in excess of applicable thresholds. Net investment income for this purpose will include gain on the disposition of Shares and income with respect to the CVRs, to the extent and at the
time included in a Holder’s income for federal income tax purposes.
Non-U.S. Holders
Any gain realized by a non-U.S. holder upon the tender of Shares pursuant to the Offer or the exchange of Shares pursuant to the Merger, as the
case may be, generally will not be subject to U.S. federal income tax unless:
| |
• |
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the gain is effectively connected with a U.S. trade or business of such non-U.S. holder (and, if an applicable treaty so provides, is also attributable to a permanent establishment maintained by such non-U.S. holder in
the United States), in which case the non-U.S. holder generally will be taxed in the same manner as a U.S. holder (as described above under “U.S. Holders”), except that if the non-U.S. holder is a foreign corporation, an additional branch
profits tax may apply at a rate of 30% (or a lower applicable treaty rate); or |
| |
• |
|
the non-U.S. holder is a nonresident alien individual who is present in the United States for 183 days or more in the taxable year of the closing of the Offer or the Effective Time of the Merger, as the case may be, and
certain other conditions are met, in which case the non-U.S. holder may be subject to a 30% U.S. federal income tax (or a tax at a reduced rate under an applicable income tax treaty) on such gain (net of certain U.S. source losses).
|
As discussed above under “U.S. Holders”, Parent intends to treat a portion of each payment on the CVRs as imputed
interest. Parent expects that it or another applicable withholding agent will withhold or cause to be withheld an amount equal to 30% (or lower applicable treaty rate) of the portion of any such payments treated as imputed interest, unless a
non-U.S. holder establishes its entitlement to exemption from or a reduced rate of withholding under an applicable tax treaty by providing the appropriate documentation (generally, IRS Form W-8BEN or W-8BEN-E) to the applicable withholding agents.
Although the “portfolio interest exemption” under the Code provides for a complete exemption from withholding on “portfolio interest” if certain conditions are met, it is unclear whether or to what extent the portion of each
payment on the CVRs that is treated as imputed interest would be eligible for the portfolio interest exemption. Accordingly, Parent does not intend to treat any portion of such payments as being eligible for the portfolio interest exemption.
FATCA. Under the “Foreign Account Tax Compliance Act” provisions of the Code, related U.S. Treasury guidance and related
intergovernmental agreements (“FATCA”), Parent or another applicable withholding agent will be required to withhold tax at a rate of 30% on the portion of payments on the CVRs reported as imputed interest, or possibly the entire CVR
payment depending on the U.S. federal income tax treatment of the receipt of the CVRs, if a non-U.S. holder fails to meet prescribed certification requirements. In general, no such withholding will be required with respect to a person that timely
provides certifications that establish an
21
exemption from FATCA withholding on a valid Form W-8 or W-9, as the case may be. Such withholding tax will generally be in lieu of, rather than in addition to, the 30% withholding tax described
in the preceding paragraph. A non-U.S. holder may be able to claim a credit or refund of the amount withheld under certain circumstances. Each non-U.S. holder should consult its own tax advisor regarding the application of FATCA to the CVRs.
Non-U.S. holders who properly perfect appraisal rights with respect to their Shares should consult their own tax advisors with respect to the
U.S. federal income tax consequences of perfecting such appraisal rights.
Information Reporting and Backup Withholding
Payments made to a holder of Shares upon such holder’s exchange of Shares pursuant to the Offer or the Merger may be subject to
information reporting, and the cash consideration paid to a holder of Shares may be subject to backup withholding (currently at the rate of 28%). In addition, payments with respect to a CVR may be subject to information reporting and backup
withholding. A U.S. holder will not be subject to backup withholding if, assuming the applicable withholding agent has not received notice from the IRS that such backup withholding is otherwise required with respect to such holder, the U.S. holder
(i) (A) furnishes a correct TIN and complies with certain certification procedures (generally, by providing a properly completed and executed IRS Form W-9 certifying that the holder is not subject to backup withholding, the form for which will be
included with the applicable Letter(s) of Transmittal to be returned to the Depositary); or (B) otherwise establishes to the satisfaction of the Depositary that such U.S. holder is exempt from backup withholding tax and (ii) with respect to payments
on the CVRs, provides the rights agent with the certification described in clause (i)(A) of this sentence or otherwise establishes an exemption from backup withholding tax.
A non-U.S. holder will not be subject to backup withholding if the non-U.S. holder certifies to the applicable withholding agents its exempt
status by providing a properly executed IRS Form W-8 (typically, form W-8BEN for individuals or Form W-8-BEN-E for entities). Any interest (including imputed interest) that is paid to a non-U.S. holder generally will be reported to the IRS and to
such non-U.S. holder by the applicable withholding agent. Copies of these information returns may also be made available to the tax authorities of the country in which the non-U.S. holder resides under the provisions of various treaties or
agreements for the exchange of information.
Certain stockholders (including corporations) generally are not subject to backup
withholding. Backup withholding is not an additional tax, and any amounts withheld under the backup withholding rules from a payment to a holder generally will be allowed as a refund or credit against such holder’s U.S. federal income tax
liability, provided that such holder timely and properly furnishes the required information to the IRS.
THE FOREGOING DISCUSSION DOES NOT
PURPORT TO BE A COMPLETE DISCUSSION OF THE POTENTIAL TAX CONSEQUENCES OF THE OFFER OR THE MERGER OR THE OWNERSHIP OF CVRS. HOLDERS OF SHARES ARE STRONGLY URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM, INCLUDING
THE APPLICABILITY AND EFFECT OF U.S. FEDERAL, STATE, LOCAL AND FOREIGN INCOME, ESTATE, GIFT AND OTHER TAX LAWS IN THEIR PARTICULAR CIRCUMSTANCES. NOTHING IN THIS DISCUSSION IS INTENDED TO BE, OR SHOULD BE CONSTRUED AS, TAX ADVICE.
| 6. |
Price Range of Shares; Dividends. |
The Shares currently trade on the NASDAQ Stock Market
(“NASDAQ”) under the symbol “DRTX.” Durata advised Parent that, as of October 14, 2014, (i) 26,790,203 Shares were issued and outstanding and (ii) an aggregate of 4,066,083 Shares were reserved for issuance
pursuant to outstanding awards and rights under the Durata Stock Incentive Plan or the Amended and Restated 2012 Stock Incentive Plan, of which 4,062,867 Shares were underlying outstanding and unexercised Company Options and 3,216 Shares were
underlying unvested awards of Company Restricted Stock.
22
The following table sets forth, for the periods indicated, the high and low sale prices per Share
for each quarterly period, as reported on NASDAQ, and the quarterly cash dividends declared per share for each such quarterly period, since July 19, 2012. Prior to that time, there was no public market for the Shares.
|
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|
|
|
|
|
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High |
|
|
Low |
|
|
Cash Dividends
Declared |
|
| Year Ended December 31, 2012 |
|
|
|
|
|
|
|
|
|
|
|
|
| Third Quarter (beginning on July 19, 2012) |
|
$ |
10.50 |
|
|
$ |
6.68 |
|
|
$ |
— |
|
| Fourth Quarter |
|
|
10.63 |
|
|
|
6.75 |
|
|
|
— |
|
| Year Ended December 31, 2013 |
|
|
|
|
|
|
|
|
|
|
|
|
| First Quarter |
|
$ |
10.49 |
|
|
$ |
7.08 |
|
|
$ |
— |
|
| Second Quarter |
|
|
9.12 |
|
|
|
6.65 |
|
|
|
— |
|
| Third Quarter |
|
|
9.64 |
|
|
|
7.11 |
|
|
|
— |
|
| Fourth Quarter |
|
|
13.21 |
|
|
|
8.44 |
|
|
|
— |
|
| Year Ended December 31, 2014 |
|
|
|
|
|
|
|
|
|
|
|
|
| First Quarter |
|
$ |
16.99 |
|
|
$ |
10.09 |
|
|
$ |
— |
|
| Second Quarter |
|
|
17.74 |
|
|
|
11.68 |
|
|
|
— |
|
| Third Quarter |
|
|
18.17 |
|
|
|
12.50 |
|
|
|
— |
|
| Fourth Quarter (through October 16, 2014) |
|
|
24.33 |
|
|
|
11.34 |
|
|
|
— |
|
On October 3, 2014, the trading day before the public announcement of the execution of the Merger
Agreement, the reported closing sales price of the Shares on NASDAQ was $13.88. On October 16, 2014, the last full trading day before the commencement of the offer, the reported closing sales price of the Shares on NASDAQ was $23.60. The Cash
Consideration represents a 66% premium over the October 3, 2014 closing stock price and a 69% premium over the volume weighted average price for the 30 trading days ended October 3, 2014.
The Merger Agreement provides that from the date of the Merger Agreement to the Effective Time, without the prior written consent of Parent,
Durata will not declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of any Durata securities (including the Shares) or set a record date therefor.
| 7. |
Certain Information Concerning Durata. |
Except as specifically set forth herein, the
information concerning Durata contained in this Offer to Purchase has been taken from or is based upon information furnished by Durata or its representatives or upon publicly available documents and records on file with the SEC and other public
sources. The summary information set forth below is qualified in its entirety by reference to Durata’s public filings with the SEC (which may be obtained and inspected as described below) and should be considered in conjunction with the more
comprehensive financial and other information in such reports and other publicly available information. We do not assume any responsibility for the accuracy or completeness of the information concerning Durata, whether furnished by Durata or
contained in such documents and records, or for any failure by Durata to disclose events which may have occurred or which may affect the significance or accuracy of any such information but which are unknown to us.
General. Durata was incorporated under the laws of the State of Delaware on November 4, 2009. Durata’s principal offices are
located at 500 West Monroe Street, Suite 3300, Chicago, Illinois 60661 and its telephone number is (312) 219-7000. The following description of Durata and its business has been taken from Durata’s Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 2014 and is qualified in its entirety by reference to such Form 10-Q.
Durata is a pharmaceutical
company focused on the development and commercialization of new therapeutics for patients with infectious diseases and acute illnesses. Durata submitted a new drug application, or NDA, to the U.S. Food and Drug Administration, or FDA, on
September 26, 2013 for dalbavancin for the
23
treatment of acute bacterial skin and skin structure infections (“ABSSSI”) caused by certain susceptible bacteria. On November 25, 2013, the FDA accepted Durata’s NDA for
priority review with an action date of May 26, 2014. On May 23, 2014, the FDA approved Dalvance™ (dalbavancin) for injection for the treatment of adult patients with ABSSSI caused by susceptible Gram-positive bacteria, including
methicillin-resistant Staphylococcus aureus. Dalvance is the first and only intravenous antibiotic approved for the treatment of ABSSSI with a two-dose regimen of 1000 mg followed one week later by 500 mg, each administered over 30 minutes. Sales of
dalbavancin in the United States commenced in late July 2014. Dalbavancin is designated as a Qualified Infectious Disease Product (“QIDP”) by the FDA. Dalbavancin’s QIDP designation qualifies it for an additional five years of
marketing exclusivity to be added to certain exclusivity periods already provided by the Food, Drug and Cosmetic Act. A Marketing Authorization Application for dalbavancin is under review with the European Medicines Agency, with a decision
anticipated in the first half of 2015.
Available Information. The Shares are registered under the Exchange Act. Accordingly,
Durata is subject to the information reporting requirements of the Exchange Act and, in accordance therewith, is required to file periodic reports, proxy statements and other information with the SEC relating to its business, financial condition and
other matters. Information as of particular dates concerning Durata’s directors and officers, their remuneration, stock options granted to them, the principal holders of Durata’s securities, any material interests of such persons in
transactions with Durata and other matters is required to be disclosed in proxy statements, the most recent one having been filed with the SEC on April 16, 2014. Such reports, proxy statements and other information are available for inspection
at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Copies of such information may be obtainable by mail, upon payment of
the SEC’s customary charges, by writing to the SEC at the address above. The SEC also maintains a website on the Internet at www.sec.gov that contains reports, proxy statements and other information regarding registrants, including Durata, that
file electronically with the SEC.
| 8. |
Certain Information Concerning Actavis, Parent and Purchaser. |
General. Actavis
is a public limited company incorporated in Ireland and an indirect parent of Parent. Actavis’ principal executive offices are located at 1 Grand Canal Square, Docklands, Dublin 2, Ireland. The telephone number of Actavis is
(862) 261-7000. Actavis is a leading integrated global specialty pharmaceutical company engaged in the development, manufacturing, marketing, sale and distribution of generic, branded generic, brand name, biosimilar and over-the-counter
pharmaceutical products.
Parent is a Delaware corporation and an indirect wholly owned subsidiary of Actavis. Parent is primarily a
holding company for certain United States assets of Actavis.
Purchaser is a Delaware corporation formed on October 2, 2014, solely
for the purpose of effecting the Offer and the Merger and has conducted no business activities other than those related to the structuring and negotiation of the Offer and the Merger. Purchaser has no assets or liabilities other than the contractual
rights and obligations related to the Merger Agreement. Upon the completion of the Merger, Purchaser’s separate corporate existence will cease and Durata will continue as the Surviving Corporation. Until immediately prior to the time Purchaser
purchases Shares pursuant to the Offer, it is not anticipated that Purchaser will have any assets or liabilities or engage in activities other than those incidental to its formation and capitalization and the transactions contemplated by the Offer
and the Merger. Purchaser is a wholly owned subsidiary of Parent.
Parent’s principal executive offices, which is also
Purchaser’s business address, are located at Morris Corporate Center III, 400 Interpace Parkway, Parsippany, New Jersey 07054. The telephone number at this location is (862) 261-7000.
The name, citizenship, business address, present principal occupation or employment and five-year employment history of each of the directors
and executive officers of Parent and Purchaser are listed in Schedule I to this Offer to Purchase.
24
During the last five years, none of Actavis, Parent or Purchaser or, to the best knowledge of
Actavis, Parent and Purchaser, any of the persons listed in Schedule I to this Offer to Purchase (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to any judicial or
administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining such person from future violations of, or prohibiting activities subject to, federal or
state securities laws, or a finding of any violation of such laws.
Except as provided in the Merger Agreement, the Support Agreement or
as otherwise described in this Offer to Purchase, (i) none of Actavis, Parent or Purchaser or, to the best knowledge of Actavis, Parent and Purchaser, any of the persons listed in Schedule I to this Offer to Purchase or any associate or
majority-owned subsidiary of Actavis, Parent or Purchaser, or any of the persons so listed beneficially owns or has any right to acquire, directly or indirectly, any Shares and (ii) none of Actavis, Parent or Purchaser or, to the best knowledge
of Actavis, Parent and Purchaser, any of the persons or entities referred to in Schedule I hereto nor any director, executive officer or subsidiary of any of the foregoing has effected any transaction in respect of any Shares during the past 60
days. Except as provided in the Merger Agreement, the Support Agreement or as otherwise described in this Offer to Purchase, none of Actavis, Parent or Purchaser or, to the best knowledge of Actavis, Parent and Purchaser, any of the persons listed
in Schedule I to this Offer to Purchase, has any contract, arrangement, understanding or relationship with any other person with respect to any securities of Durata (including, but not limited to, any contract, arrangement, understanding or
relationship concerning the transfer or the voting of any such securities, joint ventures, loan or option arrangements, puts or calls, guaranties of loans, guaranties against loss, or the giving or withholding of proxies, consents or
authorizations).
Except as set forth in this Offer to Purchase, none of Actavis, Parent or Purchaser or, to the best knowledge of
Actavis, Parent and Purchaser, any of the persons listed in Schedule I hereto, has had any business relationship or transaction with Durata or any of its executive officers, directors or affiliates that is required to be reported under the rules and
regulations of the SEC applicable to the Offer. Except as set forth in this Offer to Purchase, there have been no contacts, negotiations or transactions between Actavis, Parent, or Purchaser or any of their subsidiaries, to the best knowledge of
Actavis, Parent and Purchaser, any of the persons listed in Schedule I to this Offer to Purchase, on the one hand, and Durata or its affiliates, on the other hand, concerning a merger, consolidation or acquisition, tender offer or other acquisition
of securities, an election of directors or a sale or other transfer of a material amount of assets during the past two years.
Available Information. Pursuant to Rule 14d-3 under the Exchange Act, we have filed with the SEC a Tender Offer Statement on Schedule
TO (the “Schedule TO”), of which this Offer to Purchase forms a part, and exhibits to the Schedule TO. The Schedule TO and the exhibits thereto, as well as other information filed by Parent and Purchaser with the SEC, are available for
inspection at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Copies of such information may be obtainable by mail, upon
payment of the SEC’s customary charges, by writing to the SEC at the address above. The SEC also maintains a website on the Internet at www.sec.gov that contains the Schedule TO and the exhibits thereto and other information that Purchaser has
filed electronically with the SEC.
| 9. |
Source and Amount of Funds. |
Purchaser estimates that it will need approximately $755
million to purchase all of the Shares pursuant to the Offer, make payments in respect of Company Options and Company Restricted Stock, fund amounts that will become payable under Durata’s credit agreement with PDL BioPharma, Inc., fund amounts
in order to repay a promissory note issued to Pfizer, Inc. and pay the Merger Consideration and consummate the Merger, plus related fees and expenses related to the foregoing. In addition, Purchaser estimates that it would need approximately an
additional $147 million to pay the maximum aggregate amount that holders of the CVRs would be entitled to in the event that all milestones are timely achieved. Parent will provide Purchaser with sufficient funds to purchase all Shares properly
tendered in the Offer and to provide funding for the Merger with Durata
25
and the other transactions contemplated by the Merger Agreement, which are expected to follow the successful completion of the Offer in accordance with the terms and conditions of the Merger
Agreement. The Offer is not conditioned upon Parent’s or Purchaser’s ability to finance the purchase of Shares pursuant to the Offer. Parent expects to obtain the necessary funds from available cash and proceeds to be received from the
existing credit facilities of Parent or its affiliates.
Purchaser does not believe its financial condition is relevant to a decision by
the holders of Shares whether to tender Shares and accept the Offer because:
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• |
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the Offer is not subject to any financing condition; |
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• |
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if Purchaser consummates the Offer, it will acquire all remaining Shares for the same consideration in the Merger; |
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• |
|
the Offer is being made for all outstanding Shares solely for cash (including the right to receive all amounts payable with respect to the CVRs, which will be paid in cash); and |
| |
• |
|
Parent and/or one or more of its affiliates has, and will arrange for Purchaser to have, sufficient funds available to purchase all Shares validly tendered in the Offer, and not properly withdrawn, prior to the
Expiration Date, to acquire the remaining outstanding Shares in the Merger and to pay all amounts payable with respect to the CVRs on the payment date applicable thereto. |
| 10. |
Background of the Offer; Past Contacts or Negotiations with Durata. |
The information set
forth below regarding Durata not involving Parent, Purchaser or Actavis was provided by Durata, and none of Parent, Purchaser, Actavis or any of their affiliates or representatives takes any responsibility for the accuracy or completeness of any
information regarding meetings or discussions in which none of Parent, Purchaser, Actavis or any of their affiliates or representatives participated.
Background of the Offer
The following is a description of material contacts between representatives of Parent, Purchaser or Actavis and representatives of Durata that
resulted in the execution of the Merger Agreement. For a review of Durata’s additional activities, please refer to Durata’s Schedule 14D-9 that will be filed with the SEC and mailed to all Durata stockholders.
On September 22, 2014, representatives of Bank of America Merrill Lynch, Durata’s financial advisor (“BofA Merrill Lynch”)
contacted Actavis regarding a potential transaction for a pharmaceutical company but did not disclose the name of the company they were representing.
On September 23, 2014, representatives of BofA Merrill Lynch contacted Actavis regarding the potential transaction, and reported that the
company they were representing was Durata. Representatives of BofA Merrill Lynch informed Actavis that Durata was negotiating a sale to a third party, that Actavis was being contacted as part of a pre-signing market check and that Durata wanted to
seek the highest and best price for an acquisition. Representatives of BofA Merrill Lynch requested that if Actavis were interested in acquiring Durata, it submit a bid by September 29, 2014.
Beginning on September 23, 2014, representatives of Actavis began conducting a detailed due diligence review of public information
relating to Durata’s business.
On September 24, 2014, Durata made available to Actavis certain non-public information regarding
dalbavancin, including certain forecasts prepared by Durata’s management for dalbavancin in the United States market to treat skin infections and for new indications.
On September 26, 2014, representatives of Actavis held a telephone conference call with Durata’s senior management to discuss the
forecasts provided to Actavis and other due diligence questions Actavis posed about Durata’s key product, business and financial prospects.
On September 27, 2014, Actavis submitted a follow-up information request related to Durata’s key product and on September 29,
2014, Actavis submitted a due diligence request through BofA Merrill Lynch.
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On the morning of September 30, 2014, Actavis spoke with representatives of BofA Merrill
Lynch about a proposal whereby Actavis would acquire Durata for approximately $21.00-$23.00 per Share in cash plus some additional value that may be paid through a CVR. Actavis was told by representatives of BofA Merrill Lynch that if it could offer
$23.00 per Share in cash and contingent consideration payments through a CVR in the range of $4.00 to $6.00 per Share in cash, Durata would grant Actavis access to an electronic data room.
In the afternoon of September 30, 2014, Actavis submitted a proposal to representatives of BofA Merrill Lynch whereby Actavis would
acquire Durata for $23.00 per Share in cash and a contingent consideration payment of up to $5.00 in cash per Share. The parties agreed that $1.00 per Share of the contingent consideration would be based on receipt of authorization from the FDA to
market and sell dalbavancin with approved labeling for a single dose infusion in adult patients and $1.00 per Share of the contingent consideration would be based on receipt of marketing approval from the European Medicines Agency for dalbavancin
for the treatment of adult patients with acute bacterial skin and skin structure infections. The parties also agreed that $3.00 per Share of contingent consideration would be based on achieving a certain sales target, and that Durata would
subsequently propose such a target.
Also on September 30, 2014, after the conversation between Actavis and representatives of BofA
Merrill Lynch concerning the triggers for payment of the contingent consideration, Actavis and its representatives were granted access to a virtual data room that contained business and financial information regarding Durata, and Actavis began
conducting a detailed due diligence review of non-public information relating to Durata’s business. Actavis was told by representatives of BofA Merrill Lynch that Durata would like to reach agreement on a transaction with the highest bidder on
October 5, 2014.
On October 1, 2014, representatives of Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”),
Durata’s legal advisor, provided representatives of Debevoise & Plimpton LLP (“Debevoise”), Actavis’ legal advisor, with a draft merger agreement for the proposed transaction contemplating a transaction effected through
a tender offer for all outstanding shares of Durata common stock, with each share of Durata common stock entitled to receive an amount in cash plus one non-transferable contingent value right. The WilmerHale draft proposed, among other things, a
termination fee equal to 1.5% of the aggregate Cash Consideration to be payable by Durata to Parent under certain circumstances (the “Durata Termination Fee”) and a three business day “match period” in the event Durata received a
superior proposal. WilmerHale also provided a draft tender and support agreement, in which it was contemplated that certain directors, officers and stockholders of Durata would execute in connection with the execution of the merger agreement.
Additionally, WilmerHale provided a draft form of contingent value rights agreement, which reflected the parties’ prior agreement on the milestones related to single dose and European Medicines Agency approval, and provided that the $3.00 of
contingent consideration would be based on Durata’s achieving cumulative worldwide net revenue of $600 million during the period beginning on January 1, 2016, and ending on December 31, 2017.
On October 2, 2014, Durata and Parent executed a customary confidentiality agreement with respect to a possible transaction, which
confidentiality agreement superseded the 2011 Confidentiality Agreement.
Also on October 2, 2014, representatives of Actavis and
Durata, as well as representatives of Debevoise, WilmerHale and BofA Merrill Lynch, participated in a telephone conference call to discuss the drafts of the agreements provided by WilmerHale the previous day. The parties also discussed which
stockholders would be expected to sign a tender and support agreement.
On October 3, 2014, Debevoise sent revised drafts of the
merger agreement, tender and support agreement and form of contingent value rights agreement to WilmerHale. The draft of the merger agreement, among other things, proposed that the size of the Durata Termination Fee be increased to 3.0% of the
aggregate Cash Consideration, proposed a five business day “match period” in the event Durata received a superior proposal and proposed a closing condition that holders of shares of Durata’s common stock representing no more than 5%
of Durata’s outstanding common stock had exercised (and not withdrawn) their right to seek appraisal for their Shares pursuant to Section 262 of the DGCL.
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In the morning of October 4, 2014, WilmerHale sent revised drafts of the agreements to
Debevoise. During the course of the day, the parties and their advisors continued to negotiate the terms of the proposed transaction, including the termination fee, the match rights, the level of efforts that Parent would be required to undertake in
order to satisfy the HSR Condition, appropriate carve-outs from the definition of “Material Adverse Effect,” whether the closing would be conditioned in any way on Durata’s receipt of demands for appraisal and the level of efforts
Actavis would be required to undertake in order to achieve the milestones set forth in the form of contingent value rights agreement.
Following extensive negotiation, Parent agreed to accept Durata’s proposal that the closing not be conditioned in any way on
Durata’s receipt of demands for appraisal, and Durata agreed to accept Parent’s proposal for a Durata Termination Fee equal to 3.0% of the aggregate Cash Consideration of the proposed transaction. The parties also agreed on the “match
period”, carve-outs to the definition of “Material Adverse Effect” and the level of efforts that would be required of Parent to satisfy the HSR Condition and achieve the CVR milestones.
On October 5, 2014, the board of directors of Actavis met telephonically and, after consideration of the proposed transaction,
unanimously approved the Merger Agreement, the related transactions and other related matters. That same day, the boards of directors of Parent and Purchaser approved the Merger Agreement and the related transactions by unanimous written consent.
In the afternoon on October 5, 2014, Durata informed Actavis that it had told the competing bidder that Actavis’ proposal was
superior, and that it would be signing a definitive agreement with Actavis that evening.
Also on October 5, 2014, at a meeting of
the Durata Board, the Durata Board (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, are advisable and fair to, and in the best interests of, Durata and its stockholders,
(ii) approved the Merger Agreement and the transactions contemplated thereby and declared that the Merger Agreement, the Offer, the Merger and the other transactions contemplated by the Merger Agreement are advisable, and (iii) resolved to
recommend that the stockholders of Durata accept the Offer and tender all their Shares pursuant to the Offer.
Late in the evening on
October 5, 2014, Durata, Parent and Purchaser entered into the Merger Agreement and agreed upon the form of the CVR Agreement, and Parent, Purchaser and certain stockholders of Durata entered into the Tender and Support Agreement.
On the morning of October 6, 2014, Durata and Actavis issued a joint press release announcing the execution of the Merger Agreement. A
copy of the joint press release has been filed as Exhibit (a)(1)(F) to the Tender Offer Statement on Schedule TO filed with the SEC and is incorporated herein by reference.
On October 17, 2014, Purchaser commenced the Offer. During the Offer, Parent and Purchaser intend to have ongoing contacts with Durata and its
directors, officers and stockholders.
| 11. |
The Merger Agreement; Other Agreements. |
Merger Agreement
The following summary of certain provisions of the Merger Agreement and all other provisions of the Merger Agreement discussed herein are
qualified by reference to the Merger Agreement itself, which is incorporated herein by reference. We have filed a copy of the Merger Agreement as Exhibit (d)(1) to the Schedule TO. The Merger Agreement may be examined and copies may be obtained
at the places and in the manner set forth in Section 8 — “Certain Information Concerning Parent and Purchaser.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the
provisions summarized below. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Merger Agreement.
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The Merger Agreement has been filed with the SEC and incorporated by reference herein to provide
investors and stockholders with information regarding the terms of the agreement. It is not intended to provide any other factual information about Parent, Purchaser or Durata. The representations, warranties and covenants contained in the Merger
Agreement were made only as of specified dates for the purposes of such agreement, were solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in
reviewing the representations, warranties and covenants contained in the Merger Agreement and any description thereof contained or incorporated by reference herein, it is important to bear in mind that such representations, warranties and covenants
were negotiated with the principal purpose of allocating risk between the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from
those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures set forth in a confidential disclosure letter that was provided by Durata to Parent but is not filed with the
SEC as part of the Merger Agreement. Investors and stockholders are not third-party beneficiaries under the Merger Agreement. Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as
characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants, which do not purport to be accurate as of the date of this Offer to
Purchase, may have changed since the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the parties’ public disclosures.
The Offer. The Merger Agreement provides that Purchaser will commence the Offer on or before October 21, 2014. Purchaser’s
obligation to accept for payment and pay for Shares validly tendered in the Offer is subject to the satisfaction of the Minimum Condition and the other Offer Conditions that are described in Section 15 — “Conditions of the
Offer.” Subject to the satisfaction of the Minimum Condition and the other Offer Conditions that are described in Section 15 — “Conditions of the Offer,” the Merger Agreement provides that Purchaser will, and Parent will
cause Purchaser to, accept for payment and pay for all Shares validly tendered and not validly withdrawn in the Offer as soon as practicable after the applicable Expiration Date, as it may be extended pursuant to the terms of the Merger Agreement.
Acceptance and payment for Shares pursuant to and subject to the conditions of the Offer shall occur on November 17, 2014, unless we extend the Offer pursuant to the terms of the Merger Agreement.
Parent and Purchaser expressly reserve the right to waive any Offer Condition, to increase the Offer Price or to make any other changes in the
terms and conditions of the Offer, except that Durata’s prior written approval is required for Parent and Purchaser to:
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decrease the Offer Price; |
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change the form of consideration payable in the Offer; |
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decrease the number of Shares sought to be purchased in the Offer; |
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impose additional conditions on the Offer or amend any Offer Condition; |
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waive or amend the Minimum Condition; |
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amend any other term of the Offer in a manner that is adverse to the holders of Shares; or |
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extend the Expiration Date except as required or permitted by the Merger Agreement. |
The
Merger Agreement contains provisions to govern the circumstances under which Purchaser is required or permitted to extend the Offer and under which Parent is required to cause Purchaser to extend the Offer. Specifically, the Merger Agreement
provides that:
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if any Offer Condition has not been satisfied or waived, Purchaser will (and Parent will cause Purchaser to) extend the Offer for successive periods of not more than ten (10) business days each (or such longer
period as Parent, Purchaser and Durata may agree), the length of each such period to be determined by Purchaser, in order to permit the satisfaction of the Offer Conditions. |
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Purchaser will, and Parent will cause Purchaser to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer or necessary to resolve
any comments of the SEC or its staff applicable to the Offer, the Schedule TO or other required ancillary documents. |
However, Purchaser is not required to extend the Offer beyond the Outside Date and will not extend the Offer beyond the Outside Date without
Durata’s consent.
Purchaser has agreed that it will terminate the Offer promptly upon any termination of the Merger Agreement (and
in any event within one business day of such termination).
Board of Directors and Officers. Under the Merger Agreement, subject to
applicable law, Parent, Purchaser and Durata have agreed to take all necessary action to ensure that the Durata Board immediately prior to the Acceptance Time remains in place until immediately prior to the Effective Time, and that the board of
directors and officers of the Surviving Corporation at and immediately following the Effective Time will consist of the members of the board of directors and officers, respectively, of Purchaser immediately prior to the Effective Time, each to hold
office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors have been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance
with the certificate of incorporation and bylaws of the Surviving Corporation.
The Merger. The Merger Agreement provides that,
following completion of the Offer and subject to the terms and conditions of the Merger Agreement, and in accordance with the DGCL, at the Effective Time, Purchaser will be merged with and into Durata, and the separate existence of Purchaser will
cease, and Durata will continue as the Surviving Corporation after the Merger. The Merger will be governed by Section 251(h) of the DGCL. Accordingly, Parent, Purchaser and Durata have agreed to take all necessary action to cause the Merger to
become effective as soon as practicable following the acceptance for payment of Shares pursuant to the Offer without a vote of Durata’s stockholders in accordance with Section 251(h) of the DGCL.
The certificate of incorporation and bylaws of Purchaser immediately prior to the Effective Time will be the certificate of incorporation and
bylaws of the Surviving Corporation at and immediately after the Effective Time.
The obligations of Durata, Parent and Purchaser to
complete the Merger are subject to the satisfaction or waiver by each of the parties of the following conditions:
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Purchaser must have accepted for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer; |
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there is no law or order, injunction or decree enacted, enforced, amended, issued, in effect or deemed applicable to the Merger, by any governmental entity that is in effect, and no governmental entity has taken any
other action, in each case the effect of which is to make illegal or otherwise prohibit consummation of the Merger; and |
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the CVR Agreement must have been executed by Parent and a rights agent mutually agreeable to Parent and Durata, and be in full force and effect. |
Conversion of Capital Stock at the Effective Time. Shares issued and outstanding immediately prior to the Effective Time (other than
Shares held by Durata as treasury stock or Shares held by Parent, Purchaser or any other subsidiary of Parent, which will be canceled and cease to exist without consideration or payment, and other than Shares held by a holder who exercises appraisal
rights in accordance with Delaware law with respect to the Shares) will be converted at the Effective Time into the right to receive (a) $23.00 per Share, net to the seller in cash, without interest and less and applicable withholding taxes,
plus (b) one CVR (collectively, the “Merger Consideration”).
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Each share of Purchaser’s common stock issued and outstanding prior to the Effective Time
will be converted into one fully paid share of common stock of the Surviving Corporation.
The holders of certificates or book-entry
shares which immediately prior to the Effective Time represented Shares will cease to have any rights with respect to such Shares other than the right to receive, upon surrender of such certificates or book-entry shares in accordance with the
procedures set forth in the Merger Agreement, the Merger Consideration, or, with respect to Shares of a holder who exercises appraisal rights in accordance with Delaware law, the rights set forth in Section 262 of the DGCL.
Treatment of Equity Awards. Pursuant to the Merger Agreement, each Company Option that is outstanding and unexercised immediately prior
to the Effective Time will vest in full and automatically be canceled and terminated as of the Effective Time in consideration for the right to receive (a) a cash payment equal to the product of (i) the total number of Shares underlying
such Company Option and (ii) the excess, if any, of the Cash Consideration over the exercise price per Share of such Company Option and (b) one CVR for each Share underlying such Company Option outstanding immediately prior to the
Effective Time, in each case without interest and subject to any applicable withholding or other taxes required by applicable law.
Each share of Company Restricted Stock that is outstanding immediately prior to the Effective Time will fully vest and the restrictions
thereon will lapse, and each such share of Company Restricted Stock will be canceled and converted into the right to receive the Merger Consideration without interest and subject to any applicable withholding or other taxes required by applicable
law.
Representations and Warranties. This summary of the Merger Agreement has been included to provide investors with information
regarding its terms. It is not intended to provide any other factual information about Parent, Purchaser or Durata, their respective businesses, or the actual conduct of their respective businesses during the period prior to the consummation of the
Offer or the Merger. The Merger Agreement contains representations and warranties that are the product of negotiations among the parties thereto and made to, and solely for the benefit of, each other as of specified dates. The assertions embodied in
those representations and warranties are subject to qualifications and limitations agreed to by the respective parties and are also qualified in important part by a confidential disclosure letter delivered by Durata to Parent in connection with the
Merger Agreement. The representations and warranties may have been made for the purpose of allocating contractual risk between the parties to the agreements 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.
In the Merger Agreement, Durata
has made representations and warranties to Parent and Purchaser with respect to, among other things:
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corporate matters, such as organization, organizational documents, standing, qualification, power and authority; |
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authority relative to the Merger Agreement; |
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required consents and approvals, and no violations of organizational documents; |
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financial statements and SEC filings; |
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disclosure controls and internal controls over financial reporting; |
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the absence of undisclosed liabilities; |
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brokers’ fees and expenses; |
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employees and employee benefit plans, including ERISA and certain related matters; |
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the absence of litigation; |
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permits and licenses and compliance with laws; |
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compliance with anti-corruption and anti-bribery laws; |
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related party transactions; |
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the opinion of its financial advisor; |
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state takeover statutes; |
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accuracy of information supplied for purposes of the offer documents and the Schedule 14D-9; |
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third-party manufacturing facilities located in Pisticci, Italy and McPherson, Kansas, which produce DALVANCE™ for the Company; and |
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privacy, data and computer systems. |
Some of the representations and warranties in the Merger
Agreement made by Durata are qualified as to “materiality” or “Material Adverse Effect.” For purposes of the Merger Agreement, a “Material Adverse Effect” means any effect, state of facts, condition, circumstance,
change, event, development or occurrence (a) that has a material adverse effect on the business, condition (financial or otherwise), assets or results of operations of the Company and its subsidiaries, taken as a whole, or (b) has a
material adverse effect on the ability of the Company to consummate the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement. Clause (a) of the definition of “Company Material Adverse Effect”
excludes the following, either alone or in combination, from constituting or being taken into account in determining whether there has been a Material Adverse Effect:
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(i) |
changes in general economic, credit, capital or financial markets or political conditions in the United States, including with respect to interest rates or currency exchange rates; |
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(ii) |
any outbreak or escalation of hostilities, acts of war (whether or not declared), sabotage or terrorism; |
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(iii) |
any hurricane, tornado, flood, volcano, earthquake or other natural disaster; |
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(iv) |
any change after the date hereof in applicable Law or GAAP (or authoritative interpretation or enforcement thereof); |
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(v) |
general conditions in the pharmaceutical industry; |
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(vi) |
the failure, in and of itself, of the Company to meet any internal or published or public projections, forecasts, estimates or predictions (including analyst projections) in respect of revenues, earnings or other
financial or operating metrics, or changes in the market price or trading volume of Shares or the credit rating of the Company (it being understood that the underlying facts giving rise or contributing to such failure or change may be taken into
account in determining whether there has been a Material Adverse Effect if not otherwise excluded); |
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(vii) |
any legal proceedings made or brought by any of the current or former stockholders of the Company (on their own behalf or on behalf of the Company) arising out of or related to the Merger Agreement or any of the
transactions contemplated thereby; |
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(viii) |
the execution and delivery of the Merger Agreement or the consummation of the transactions contemplated thereby, or the public announcement thereof (subject to specified exceptions); |
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(ix) |
any action taken by the Company at Parent’s express written request; |
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(x) |
(1) any actions, requests, decisions, findings or determinations by a governmental entity, or any panel or advisory body empowered or appointed thereby, related to an additional new drug application or an amendment
or supplement to the existing new drug application submitted by or on behalf of the Company or (2) the failure, denial, adverse determination or withdrawal, in each case in and of itself, of an additional new drug application or an amendment or
supplement to the existing new drug application submitted by the Company to any governmental entity (it being understood that (A) the underlying facts giving rise or contributing to such actions, requests, findings, determinations, failures,
denials, adverse determinations, withdrawal, amendments or supplements, to the extent adverse to the existing new drug application or the commercialization of DALVANCE™ in the United States and (B) the facts of such actions, requests,
findings, determinations, failures, denials, adverse determinations, withdrawal, amendments or supplements, to the extent adverse to the existing new drug application or the commercialization of DALVANCE™ in the United States, may be taken into
account in determining whether there has been a Material Adverse Effect if not otherwise included); and |
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(xi) |
the identity of Parent; |
except, in the cases of the foregoing clauses (i), (ii), (iii),
(iv) or (v), to the extent that the Company is disproportionately adversely affected thereby as compared with other participants in the pharmaceutical industry (in which case the incremental disproportionate impact or impacts may be taken into
account in determining whether there has been, or is reasonably expected to be, a Material Adverse Effect).
In the Merger Agreement,
Parent and Purchaser have made representations and warranties to Durata with respect to:
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corporate matters, such as organization, organizational documents, standing, qualification, power and authority; |
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authority relative to the Merger Agreement; |
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required consents and approvals, and no violations of laws, governance documents or agreements; |
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ownership of securities of Durata; |
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sufficiency of funds to consummate the Offer and the Merger; |
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broker’s fees and expenses; |
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independent investigation of Durata; and |
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accuracy of information supplied for purposes of the offer documents and the Schedule 14D-9. |
Some of the representations and warranties in the Merger Agreement made by Parent and Purchaser are qualified as to “materiality” or
the ability to consummate the transactions contemplated by the Merger Agreement.
None of the representations and warranties of the
parties to the Merger Agreement contained in the Merger Agreement or in any schedule, instrument or other document delivered pursuant to the Merger Agreement survive the Effective Time.
Conduct of Business Pending the Merger. Durata has agreed that, from the date of the Merger Agreement until the earlier of the
Effective Time and the termination of the Merger Agreement, except as expressly provided by the Merger Agreement or as disclosed prior to execution of the Merger Agreement in Durata’s confidential
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disclosure letter, Durata will (i) conduct its operations in all material respects according to its ordinary course of business consistent with past practice, (ii) use its
commercially reasonable efforts to preserve intact its material assets, properties, contracts, licenses and business organization and to preserve satisfactory business relationships with customers, suppliers, licensors, licensees, distributors,
wholesalers, lessors and others having material business dealings with the Company and (iii) comply in all material respects with all applicable laws.
Durata has further agreed that, from the date of the Merger Agreement until the earlier of the Effective Time and the termination of the
Merger Agreement, except as consented to in writing by Parent (which consent may not be unreasonably conditioned, withheld or delayed), as expressly provided for by the Merger Agreement or as agreed to by the parties and disclosed prior to execution
of the Merger Agreement in Durata’s confidential disclosure letter, Durata will not, among other things and subject to specified exceptions (including specified ordinary course exceptions):
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issue or sell any securities of the Company, other than Shares issuable upon exercise of the options outstanding on the date of the Merger Agreement and in accordance with their respective terms; |
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repurchase, redeem or otherwise acquire any securities of the Company or any options, warrants or other rights to acquire any such securities; |
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split, combine or reclassify any Company securities, or declare, set aside, make or pay any dividend or distribution on any shares of any Company securities or set a record date therefor; |
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make acquisitions or dispositions by means of a merger, consolidation, recapitalization or otherwise, of any business, assets or securities or any sale, lease, license, sublicense, encumbrance or other disposition of
assets or securities of the Company or any third party; |
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adopt a plan of complete or partial liquidation, dissolution, recapitalization, restructuring or other reorganization of the Company, or merge or consolidate with any person; |
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enter into, terminate or materially amend or modify specified material contracts; |
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incur indebtedness for borrowed money, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company; |
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assume, guarantee, endorse or otherwise become liable or responsible for the obligations of any other person; |
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make loans, advances or capital contributions to, or investments in, any other person; |
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change any financial accounting methods, principles or practices; |
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make or change any material tax election, adopt or change any accounting method for tax purposes that has a material effect on taxes, extend the statute of limitations (or file any extension request) relating to
material taxes, amend any material tax return or settle or compromise any material tax liability; |
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amend its certificate of incorporation or bylaws or comparable organizational documents of the Company’s subsidiaries; |
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increase the compensation or benefits payable or to become payable to any of its directors, officers, employees or individual independent contractors; |
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grant to any of its directors, officers, employees or individual independent contractors any increase in severance or termination pay; |
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pay or award, or commit to pay or award, any bonuses or incentive compensation (including equity compensation); |
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enter into any employment, consulting, severance, retention or termination agreement with any of its directors, officers, employees or individual independent contractors; |
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establish, adopt, enter into, amend or terminate any collective bargaining agreement or benefit plan; |
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take any action to accelerate any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any of its directors, officers, employees or individual independent contractors;
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terminate the employment of certain executive officers, other than for cause; |
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hire any employee or individual independent contractor having total annual compensation in excess of $150,000; |
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incur any capital expenditure or any obligations or liabilities in respect thereof, except according to the Company’s capital expenditure budget and those that do not exceed $100,000; |
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settle any legal proceeding; |
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mortgage, pledge, hypothecate, grant an easement with respect to, or otherwise encumber or restrict the use of Company securities or assets or properties in any material respect; |
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enter into any new line of business; |
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enter into any material joint venture, license, alliance, joint promotion, co-marketing or development agreement or arrangement with any other person; |
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relinquish, abandon or permit to lapse, or fail to take any action necessary to maintain, enforce and protect, any of its rights in material intellectual property; |
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fail to maintain in full force and effect insurance policies covering the Company and its properties, businesses, assets and operations in a form and amount consistent with past practice in all material respects; or
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authorize, offer, agree or commit, in writing or otherwise, to take any of the foregoing actions. |
Access to Information. From and after the date of the Merger Agreement, subject to the requirements of applicable law, Durata has
agreed to provide Parent, Purchaser and their authorized officers, employees, accountants, investment bankers, counsel and other representatives reasonable access during regular business hours to Durata’s employees, plants, offices, warehouses
and other facilities, and its books, contracts, commitments and records, as Parent may reasonably request, subject to customary exceptions and limitations. Durata has also agreed to promptly notify and provide Parent with specified information with
respect to Durata’s key product and to reasonably consult with Parent with respect to various matters relating to such key product.
Directors’ and Officers’ Indemnification and Insurance. The Merger Agreement provides for indemnification and insurance
rights in favor of Durata’s current and former directors and officers, who we refer to as “indemnitees.” Specifically, Parent and Purchaser have agreed that all rights to indemnification, exculpation and advancement of expenses in
favor of indemnitees as provided in Durata’s certificate of incorporation or bylaws or under any agreement filed as an exhibit to specified SEC filings of Durata or listed on the confidential disclosure letter provided by Durata to Parent with
respect to all matters occurring prior to or at the Effective Time will survive the Offer Closing and the Merger and will continue in full force and effect in accordance with their respective terms.
From and after the Effective Time, the Surviving Corporation has agreed to be maintained in effect for a period of six years after the
Effective Time, in respect of acts or omissions occurring prior to or at the Effective Time, policies of directors’ and officers’ liability insurance covering the persons currently covered by Durata’s existing directors’ and
officers’ liability insurance policies in an amount and scope at least as favorable as the Company’s policies existing on the date hereof; however, neither Parent nor the Surviving Corporation will be required to pay an aggregate annual
premium for such insurance policies in excess of 300% of the annual premium paid by Durata for coverage for its last full fiscal year for such insurance. In lieu of the foregoing, Parent or the Surviving Corporation may purchase a six-year
“tail” prepaid policy on the directors’ and officers’ liability insurance policies on terms and conditions no less favorable than the directors’ and officers’ liability
35
insurance policies in effect on the date of the Merger Agreement (with the maximum aggregate annual premium for such insurance policies for any such year not to be in excess of the maximum
aggregate annual premium contemplated by the preceding sentence).
Reasonable Best Efforts. Each of Durata, Parent and Purchaser
has agreed to use its respective reasonable best efforts to cause the Offer and the Merger and the other transactions contemplated by the Merger Agreement to be consummated as promptly as reasonably practicable. Each of the Company, Parent and
Purchaser agreed to file within ten business days of the Merger Agreement any required submissions under the HSR Act, and use its reasonable best efforts (i) to furnish information required in connection with such submissions under the HSR Act,
(ii) to obtain early termination of the waiting period under the HSR Act, (iii) to keep the other parties reasonably informed with respect to the status of any such submissions under the HSR Act and (iv) to obtain all necessary
actions or non-actions, waivers, consents, clearances and approvals from any governmental entity. In addition, the Company, Parent and Purchaser have agreed to cooperate with one another in promptly determining whether any filings are required to be
or should be made or any consents, approvals or waivers are required to be or should be obtained from other parties to loan agreements or other contracts or instruments that the Company is a party to or related to the Company’s business in
connection with the Merger Agreement, the Offer, the Merger or the other transactions contemplated by the Merger Agreement and in promptly making any such filings, furnishing information required in connection therewith and seeking to timely obtain
any such consents, permits, approvals or waivers.
The Company, Parent and Purchaser have also agreed to: (i) promptly notify
the other parties of any communication from a governmental entity and permit the others to review and discuss in advance (and to consider in good faith any comments made by the others in relation to) any proposed substantive written communication to
a governmental entity and (ii) keep the others reasonably informed of any developments, requests for meetings or discussions with any governmental entity in respect of any filings, investigation or inquiry concerning the Offer or the Merger.
The Company, Parent and Purchaser also agreed not to participate in any in-person meeting or discussion with any governmental entity in connection with the proposed transaction unless it consults with the other party in advance and, to the extent
not prohibited by such governmental entity or by Law, gives the other party the opportunity to attend and participate where appropriate and advisable under the circumstances.
Notwithstanding anything to the contrary contained in the Merger Agreement, the parties agreed that nothing in the Merger Agreement will
require Parent or Purchaser, in order to obtain any required approval from any governmental entity or any third party, to: (i) sell, lease, license, transfer, dispose of, divest or otherwise encumber, or hold separate pending any such action,
(ii) agree or consent to conduct of business restrictions or (iii) propose, negotiate or offer to effect, or consent or commit to, any such sale, leasing, licensing, transfer, disposal, or divestiture, or holding separate, or conduct of
business restrictions before or after the Acceptance Time or the Effective Time, of any assets, licenses, operations, rights, product lines, businesses or interests therein of Parent, the Company, the Surviving Corporation or any of Parent’s
subsidiaries. However, Parent and Purchaser will be required to undertake the actions described in clauses (i) through (iii) above only to the extent (x) such actions are solely related to any business, entity or division thereof, or
any assets that Parent or its subsidiaries acquire or agree to acquire after the date of the Merger Agreement and (y) such actions are necessary to obtain the applicable consent, clearance, approval, authorization or waiver under the HSR Act
with respect to the transactions contemplated by the Merger Agreement.
In the event that any litigation or other administrative or
judicial action is commenced challenging any of the transactions contemplated by the Merger Agreement and such litigation, action or proceeding seeks to prevent, impede or delay the consummation of the Offer or the Merger or any other transaction
contemplated by the Merger Agreement, each of the Company, Parent and Purchaser have agreed to cooperate with each other, and Parent and Purchaser will use their respective reasonable best efforts, to contest and resist any such litigation, action
or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order that may result from such litigation, whether temporary, preliminary or permanent, that is in effect and that
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prohibits, prevents or restricts consummation of the transactions contemplated by the Merger Agreement. The Company has also agreed to cooperate fully with Parent in connection with, and has
agreed to consult with and permit Parent and its representatives to participate in, the defense of any such litigation, action or proceeding. The Company is not permitted to settle or enter into any negotiations or settlement of any such litigation,
action or proceeding without the prior written consent of Parent (which consent will not be unreasonably conditioned, withheld or delayed).
Employee Matters. Parent has agreed that, for the period beginning at the Effective Time and ending on the earlier of the one year
anniversary of the Effective Time and December 31, 2015 (or, if earlier, the date of termination of the applicable employee), it will, or it will cause the Surviving Corporation to, (i) provide each employee of the Company or any
subsidiary of the Company, in each case as of the Effective Time, and each employee who continues as of the Effective Time to be employed by Parent, the Surviving Corporation or any subsidiary of Parent (each, a “Durata Employee”) with at
least the same level of base salary or hourly wage rate, as the case may be, that was provided to the Durata Employee immediately prior to the Effective Time and (ii) provide the Durata Employee with other compensation and employee benefits
(excluding equity compensation, change-in-control benefits or enhancement to benefits contemplated by the Merger Agreement) that are not materially less favorable in the aggregate than either (at Parent’s discretion) (x) those provided to
similarly situated employees of Parent or its subsidiaries or (y) those in effect immediately prior to the Effective Time. Parent has agreed that the Surviving Corporation or other affiliate employing the Durata Employees will pay such
employees the bonus for 2014 at the target bonus level (or such higher level as the performance with respect to that bonus provides), with payment to be made in accordance with the Company’s normal practices in February 2015.
Durata Employees will receive service credit for purposes of eligibility, vesting and benefit accrual (solely for purposes of determining
accrual of paid time off and, if service-based, any severance) under Parent employee benefit plans that provide benefits to the Durata Employee following the Effective Time to the same extent as the Durata Employee was entitled to credit for such
service under a similar Durata employee benefit plan prior to the Effective Time. The Merger Agreement also requires Parent to use commercially reasonable efforts to:
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cause Durata Employees to be immediately eligible to participate in Parent employee benefit plans to the extent coverage under such a plan replaces coverage under a comparable Durata employee benefit plan in which the
Durata Employee participated immediately prior to the Effective Time; |
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cause all pre-existing condition limitations, exclusions, waiting periods and actively-at-work requirements of Parent employee benefit plans providing medical, dental, pharmaceutical and/or vision benefits to be waived
for Durata Employees and their covered dependents to the extent such pre-existing condition limitations, exclusions, waiting periods or actively-at-work requirements were waived or satisfied under a comparable Durata employee benefit plan; and
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recognize, or cause to be recognized, any eligible expenses incurred by Durata Employees and their covered dependents under a Durata employee benefit plan during the portion of the plan year prior to the Effective Time
to be taken into account under Parent employee benefit plans providing medical, dental, pharmaceutical and/or vision benefits for purposes of satisfying all deductible, co-insurance, co-payment and maximum out-of-pocket requirements applicable to
the Durata Employees and their covered dependents for the applicable plan year, as if such amounts had been paid in accordance with the applicable Parent employee benefit plan. |
Financing Cooperation. Prior to the Acceptance Time, the Company has agreed to, and has agreed to use reasonable best efforts to cause
its officers, employees, consultants and advisors, including legal and accounting advisors to, provide to Parent such cooperation as may be reasonably requested by Parent in connection with obtaining any third party debt or equity financing for
purposes of financing the Offer and/or the Merger, the fees and expenses incurred in connection therewith, and the other transactions contemplated thereby.
The Company has also agreed to use reasonable best efforts to deliver to Parent and Purchaser at least three business days’ prior to the
Acceptance Time, but in no event later than two business days before the Acceptance
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Time, a payoff letter with respect to the credit agreement among the Company, certain of the Company’s subsidiaries and PDL BioPharma, Inc. At or prior to the Effective Time (but subject to
the Effective Time occurring), the Company will pay off all amounts outstanding (including related fees and expenses) under such credit agreement with PDL BioPharma, Inc. (up to the extent of cash available to the Company at such time). In addition,
the Company has agreed to cooperate with Parent to effect the payment of the promissory note issued by the Company to Pfizer, Inc., dated August 18, 2014, subject to the Effective Time occurring and limited to the extent of cash available to
the Company at such time.
Security Holder Litigation. In the event that any litigation related to the Merger Agreement, the Offer,
the Merger or the other transactions contemplated by the Merger Agreement is brought by any stockholder or other holder of any Company securities (whether directly or on behalf of the Company or otherwise) against the Company and/or its directors or
officers, the Company is required to promptly notify Parent of such litigation and to keep Parent reasonably informed with respect to the status thereof. The Company has agreed to give Parent the opportunity to participate in the defense of any such
litigation, and the Company has agreed to give due consideration to Parent’s advice with respect to such litigation. The Company has agreed not settle or enter into any negotiations or settlement of any such litigation without the prior written
consent of Parent (which consent will not be unreasonably conditioned, withheld or delayed), except that Parent will not be obligated to consent to any settlement which does not include full release of Parent and its affiliates or which imposes an
injunction or other equitable relief upon Parent or any of its affiliates (including, after the Effective Time, the Surviving Corporation).
No Solicitation. Durata agreed immediately upon execution of the Merger Agreement to cease and cause to be terminated any solicitation,
encouragement, discussion or negotiation with any persons that may have been ongoing as of the execution of the Merger Agreement with respect to a Takeover Proposal (as defined below) or potential Takeover Proposal (and immediately terminate access
by any such person or group to any physical or electronic data rooms relating to a potential Takeover Proposal) and, except as described below, until the earlier of the Effective Time or the valid termination of the Merger Agreement, Durata agreed
not to, and to cause its subsidiaries and its and their directors, officers and employees not to and to direct and use its reasonable best efforts to cause its other representatives not to, directly or indirectly:
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solicit, initiate, knowingly facilitate or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal;
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provide any non-public information concerning the Company or any of its subsidiaries or engage in any discussions with any person who has made or would reasonably be expected to make any Takeover Proposal, or engage in
any discussions or negotiations with respect to any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal; |
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approve, support, adopt, endorse or recommend any Takeover Proposal; |
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(iv) |
take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation
(including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the DGCL) inapplicable to any person other than Parent and its affiliates or to any transactions constituting or
contemplated by a Takeover Proposal; |
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otherwise cooperate with or assist or participate in any such inquiries, proposals, offers, discussions or negotiations; or |
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resolve or agree to do any of the foregoing. |
Durata agreed to promptly instruct upon
execution of the Merger Agreement each person that has executed a confidentiality agreement (other than the existing confidentiality agreement between Durata and Parent) relating to a Takeover Proposal or potential Takeover Proposal promptly to
return to Durata or destroy all non-public documents and materials relating to the Takeover Proposal or to Durata or its subsidiaries or its or their
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businesses, operations or affairs furnished by Durata, its subsidiaries or any of their representatives to such person or any of its representatives. Durata has further agreed to enforce, and not
waive, terminate or modify without Parent’s prior written consent, any standstill or similar provision in any confidentiality, standstill or other agreement with any such person, except that such standstills may be waived (i) to the extent
necessary to permit a person to make, on a confidential basis to the Durata Board, a Takeover Proposal, conditioned upon such person agreeing to disclosure of such Takeover Proposal to Parent, as contemplated by the Merger Agreement and
(ii) only if the Durata Board determines in good faith (after consultation with outside legal counsel) that the failure of the Durata Board to take such action would be inconsistent with its fiduciary duties under applicable Law.
Notwithstanding the above limitations, the Company and its representatives may in any event seek to clarify and understand the terms and
conditions of any inquiry or proposal made by a person solely to determine whether such inquiry or proposal constitutes or could reasonably be expected to lead to a Superior Proposal (as defined below).
Also, notwithstanding the above limitations, if Durata receives prior to the Acceptance Time a bona fide written Takeover
Proposal that did not result from a breach of the non-solicitation provisions of the Merger Agreement which the Durata Board determines in good faith, after consultation with Durata’s outside legal and financial advisor, constitutes or could
reasonably be expected to result in a Superior Proposal and that the failure to take such action (as described below) would be inconsistent with its fiduciary duties under applicable law, Durata may take the following actions:
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(x) |
furnish information to the third party making such Takeover Proposal pursuant to an Acceptable Confidentiality Agreement (as defined below) (provided, that substantially concurrently Durata makes available any
non-public information to Parent to the extent such information was not previously made available to Parent and that Durata takes reasonable steps to safeguard any commercially sensitive non-public information); and |
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(y) |
engage in discussions or negotiations with the third party regarding such Takeover Proposal. |
In the case of each of clauses (x) and (y) above, prior to so furnishing such information, Durata must receive from the third party
an executed confidentiality and standstill agreement with terms no less favorable to Durata in any respect than the confidentiality agreement between Durata and Parent (an “Acceptable Confidentiality Agreement”). In addition, prior to or
concurrently with Durata taking such actions as described in clauses (x) and (y) above, Durata is required to provide written notice to Parent of the required determination of the Durata Board as described above, together with the identity
of the person or group making such Takeover Proposal.
Durata is required to notify Parent promptly (but in any event within 24 hours) of
the receipt of any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to any Takeover Proposal, or any initial request for non-public information concerning the Company from any person who has made or would
reasonably be expected to make any Takeover Proposal, or any initial request for discussions or negotiations related to any Takeover Proposal, and provide to Parent the identity of any third party making such inquiry, proposal or offer, the material
terms and conditions thereof and the nature of such request, and thereafter keep Parent reasonably informed on a prompt and timely basis of the status and material details of discussions with respect thereto, including any material changes to the
terms thereof. Durata is required to promptly (and, in any event, within 24 hours) provide Parent with copies of all written requests, proposals or offers, including proposed agreements, and oral summaries of any oral requests, proposals or offers,
received by Durata or that Durata delivers to any person making a Takeover Proposal.
“Takeover Proposal” means any proposal or
offer from any person or group providing for:
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any direct or indirect acquisition, purchase or license, in a single transaction or a series of related transactions, of (i) 20% or more of the consolidated assets of Durata, or (ii) Shares or any other Durata
securities, which together with any other Durata securities beneficially owned by such person or group, would represent 20% or more of the outstanding Shares; |
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any tender offer or exchange offer that, if consummated, would result in any person or group owning, directly or indirectly, 20% or more of the outstanding Shares; |
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any merger, consolidation, business combination, share exchange or similar transaction involving the Company pursuant to which any person or group (or the shareholders of any person) would own, directly or indirectly,
20% or more of the aggregate voting power of Durata or of the surviving entity in a merger or the resulting direct or indirect parent of Durata or such surviving entity or 20% or more of the consolidated assets of Durata; or |
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any reorganization, recapitalization, extraordinary dividend, liquidation, dissolution or any other similar transaction involving Durata. |
“Superior Proposal” means any bona fide written Takeover Proposal received after the date of the Merger Agreement
that, if consummated, would result in a person or group owning, directly or indirectly, more than 50% of the outstanding Shares or more than 50% of the consolidated assets of Durata, in either case which the Durata Board determines in good faith
(after consultation with its financial advisor and outside legal counsel) (i) is reasonably likely to be consummated in accordance with its terms and (ii) if consummated, would be more favorable to the stockholders of Durata from a
financial point of view than the Offer and the Merger, in each case taking into account the consideration, terms, conditions, timing, financing terms and all financial, legal, regulatory and other aspects of such Takeover Proposal (including the
person or group making the Takeover Proposal) and of the Merger Agreement (including any changes to the terms of the Merger Agreement and the agreements contemplated by the Merger Agreement proposed by Parent pursuant to the terms thereof).
Nothing in the Merger Agreement will prohibit Durata or the Durata Board from taking and disclosing to Durata’s stockholders a
position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act if, in the judgment of the Durata Board (after consultation with outside legal
counsel), failure to do so would be reasonably likely to be inconsistent with the exercise of its fiduciary duties under applicable law, or otherwise violate its obligations under applicable law. However, Durata will not be permitted to effect an
Adverse Recommendation Change (as defined below) without complying with its obligations described in “— Changes of Recommendation” below.
Changes of Recommendation. As described above, and subject to the provisions described below, the Durata Board has determined to
recommend that the stockholders of Durata accept the Offer and tender their Shares to Purchaser in the Offer. The foregoing recommendation is referred to herein as the “Durata Board recommendation.” The Durata Board also agreed to include
the Durata Board recommendation with respect to the Offer in the Schedule 14D-9 and has permitted Parent to refer to such recommendation in this Offer to Purchase and documents related to the Offer.
Except as described below, neither the Durata Board nor any committee thereof may:
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(i) |
withdraw or rescind (or modify or qualify in a manner adverse to Parent or Purchaser), or publicly propose to withdraw or rescind (or modify or qualify in a manner adverse to Parent or Purchaser), the Durata Board
recommendation or the findings or conclusions of the Durata Board referred to in the Merger Agreement; |
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(ii) |
approve or recommend the adoption of, or publicly propose to approve, declare the advisability of or recommend the adoption of, any Takeover Proposal; |
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(iii) |
cause or permit Durata or any of its subsidiaries to execute or enter into, any agreement related to any Takeover Proposal or requiring Durata to abandon, terminate, delay or fail to consummate the transactions
contemplated by the Merger Agreement, except for any Acceptable Confidentiality Agreement; |
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(iv) |
publicly propose or announce an intention to take any of the foregoing actions; |
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following the date any Takeover Proposal or any material modification thereto is first made public or sent or given to the stockholders of the
Company, fail to issue a press release stating that the Durata |
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Board recommendation has not changed within three business days following Parent’s written request to do so (which request may only be made once with respect to any such Takeover Proposal
and each material modification thereto); or |
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fail to include the Durata Board recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders (any action described in the foregoing paragraphs (i) through (vi) is referred to as
an “Adverse Recommendation Change”). |
Durata and Parent have agreed that a customary “stop, look and listen”
communication by the Durata Board or any committee thereof pursuant to Rule 14d-9(f) promulgated under the Exchange Act will not, in and of itself, constitute an Adverse Recommendation Change.
However, at any time prior to the Acceptance Time, the Durata Board may, subject to compliance with other provisions summarized under
“— No Solicitation” and “— Changes of Recommendation” above, effect an Adverse Recommendation Change (1) in response to a Superior Proposal or (2) in response to an Intervening Event (as defined below).
However, such action may only be taken if:
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the Durata Board determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary duties under applicable law; |
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in the case of a Superior Proposal, the Durata Board determines in good faith (after consultation with its outside legal counsel and financial advisor) that the applicable Takeover Proposal constitutes a Superior
Proposal and that it intends to accept or recommend such Superior Proposal; |
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Durata has provided prior written notice to Parent, at least four business days prior to taking the applicable action referred to above of its intent to take such action and specifying the reasons therefor (including,
in the case of a Superior Proposal, the terms and conditions of any Superior Proposal that is the basis for the proposed Adverse Recommendation Change and identity of any third party making such Superior Proposal, together with copies of any
agreement to be entered into giving effect to such Superior Proposal and any other material documents related thereto) (a “Notice of Intended Recommendation Change”); and |
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Durata has complied with the following additional covenants: |
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if such Adverse Recommendation Change is being made with respect to a Superior Proposal: |
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if desired by Parent, after providing any such Notice of Intended Recommendation Change, Durata is required to, and is required to cause its directors, officers and employees to and is required to direct and use its
reasonable best efforts to cause its other representatives to, negotiate with Parent in good faith during any such four business day period regarding any proposal by Parent to amend the terms and conditions of the Merger Agreement and the other
agreements contemplated thereby and at the end of such four business day period (as it may be extended pursuant to the following proviso) the Durata Board again makes the determinations described in paragraphs (i) and (ii) above with
respect to such Superior Proposal; and |
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in the event that there is any material amendment to the terms of any such Superior Proposal (including any revision in the amount, form or mix of consideration Durata’s stockholders would receive as a result of
the Superior Proposal), Durata is required to provide Parent with notice of such material amendment and there will be a new two business day period following such notification during which the Company will negotiate with Parent or otherwise comply
again with the requirements of the preceding bullet and the Durata Board will not be allowed to make an Adverse Recommendation Change prior to the end of any such period as so extended; and |
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if such Adverse Recommendation Change is being made with respect to an Intervening Event: |
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it must be made as a result of an event, fact, development or occurrence that materially affects the business, assets or operations of Durata (other
than any event, fact, development or occurrence |
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resulting from a material breach of the Merger Agreement by Durata) that was not known to, or reasonably foreseeable by, the Durata Board as of the date of the Merger Agreement and becomes known
to the Durata Board after such date and prior to the Acceptance Time (an “Intervening Event”). However, the receipt, existence or terms of a Takeover Proposal or any matter relating thereto or consequence thereof will not constitute an
Intervening Event; and |
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during any such four business day period, if desired by Parent, Durata is required to, and is required to cause its directors, officers and employees to and direct and use its reasonable best efforts to cause its other
representatives to, negotiate with Parent in good faith during any such four business day period regarding any proposal by Parent to amend the terms and conditions of the Merger Agreement and the other agreements contemplated thereby and at the end
of such four business day period the Durata Board again makes the determinations described above with respect to such Intervening Event. |
Termination. The Merger Agreement may be terminated as follows:
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by mutual written consent of Parent and Durata; |
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by either Durata or Parent, if prior to the Acceptance Time any court of competent jurisdiction or other governmental entity has issued an order, injunction or decree, or taken any other action, in each case the effect
of which is to make illegal or otherwise prohibit consummation of the Offer or the Merger and such order, injunction, decree or other action that has become final and non-appealable; provided, that this termination right is not available to any
party whose failure to perform in any material respect any covenants and agreements of such party under the Merger Agreement has primarily caused such order, injunction, decree or action; |
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by either Durata or Parent, if the Acceptance Time has not occurred on or before March 5, 2015 (the “Outside Date”); provided, however, that this termination right will not be available to any party whose
failure to fulfill in any material respect any covenants and agreements of such party under the Merger Agreement has resulted in the failure of the Acceptance Time to occur on or before the Outside Date (an “Outside Date Termination”);
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by Parent, at any time prior to the Acceptance Time, if there has been any breach of or inaccuracy in any of Durata’s representations or warranties or Durata has failed to perform any of its covenants or agreements
set forth in the Merger Agreement, which inaccuracy, breach or failure to perform (i) would give rise to the failure of certain Offer Conditions relating to Durata’s representations, warranties and covenants, and (ii) is not capable
of being cured or is not cured within thirty business days following Parent’s delivery of written notice to Durata of such breach or failure to perform; provided that Parent cannot exercise this termination right if Parent or Purchaser is then
in material breach of any of its representations, warranties, covenants or agreements such that Durata has the right to terminate the Merger Agreement pursuant to the next paragraph (a “Durata Breach Termination”); |
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by Durata, at any time prior to the Acceptance Time, if there has been any breach or inaccuracy in any of Parent’s or Purchaser’s representations or warranties or Parent or Purchaser has failed to perform any
of its covenants or agreements set forth in the Merger Agreement, which inaccuracy, breach or failure to perform (i) would reasonably be expected to, individually or in the aggregate, have a material adverse effect on the ability of Parent or
Purchaser to consummate the transactions contemplated by the Merger Agreement (including the Offer and the Merger, and (ii) is not capable of being cured or is not cured within thirty business days following Durata’s delivery of written
notice to Parent of such breach or failure to perform; provided that Durata cannot exercise this termination right if Durata is then in material breach of any of its representations, warranties, covenants or agreements such that Parent has the right
to terminate this Agreement pursuant to the foregoing paragraph; |
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by Parent, at any time prior to the Acceptance Time, in the event that any of the following has occurred: (i) an Adverse Recommendation Change;
(ii) a tender or exchange offer relating to securities |
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of Durata has been commenced and Durata has not publicly announced, within five business days after the commencement of such tender or exchange offer, that Durata recommends rejection of such
tender or exchange offer; or (iii) a material breach of the non-solicitation provisions of the Merger Agreement (an “Adverse Recommendation/Breach Termination”); |
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by Durata, at any time prior to the Acceptance Time, if the Durata Board is permitted to make an Adverse Recommendation Change in response to a Superior Proposal in accordance with the terms of the Merger Agreement, in
order to enter into an Acquisition Agreement providing for such Superior Proposal immediately following or concurrently with such termination; provided, however, that the concurrent payment of the Durata Termination Fee (described below) is a
condition to the right of Durata to exercise this termination right (a “Superior Proposal Termination”); or |
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by Durata, if Purchaser has failed to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer within the time period specified in the Merger Agreement. |
Effect of Termination. If the Merger Agreement is terminated, the Merger Agreement will become void and of no effect without liability
on the part of any party (or any directors, officers, stockholders, employees, agents, consultants or representatives or any lender or other provider of financing to Parent) to the other party, except that (i) certain specified provisions of
the Merger Agreement will survive, including those described in “— Durata Termination Fee” below, and (ii) nothing in the Merger Agreement (including the payment of the Durata Termination Fee) will relieve any party of
liability for fraud or any “willful breach” of any representations, warranties, covenants or agreements set forth in the Merger Agreement prior to such termination. Willful breach is defined in the Merger Agreement to mean an intentional
and willful material breach, or an intentional and willful material failure to perform, in each case that is the consequence of an act or omission by a party with the actual knowledge that the taking of such act or failure to take such act would
cause a breach of the Merger Agreement.
Durata Termination Fee. Durata has agreed to pay Parent a termination fee of
$20,200,000 in cash (the “Durata Termination Fee”) if:
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(i) after the date of the Merger Agreement, a Takeover Proposal shall have become publicly known, (ii) thereafter, the Merger Agreement is terminated (A) by Parent or Durata pursuant to an Outside Date
Termination, or (B) by Parent pursuant to a Durata Breach Termination and (iii) within nine months of such termination, the Durata Board approves or recommends any Takeover Proposal (regardless of when made), Durata or any of its
subsidiaries enters into any acquisition agreement, merger agreement or other definitive agreement that provides for any Takeover Proposal, or any Takeover Proposal is consummated. However, for purposes of determining if the Durata Termination Fee
is payable, the term “Takeover Proposal” has the meaning described in “— No Solicitation” above, except that all references to “20%” are deemed to be references to “50%”; |
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if this Agreement is terminated by Parent pursuant to an Adverse Recommendation/Breach Termination; or |
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if this Agreement is terminated by Durata pursuant to a Superior Proposal Termination. |
In the
event Parent receives the Durata Termination Fee, such receipt will be deemed to be liquidated damages for any and all losses or damages suffered or incurred by Parent or any of its affiliates in connection with the Merger Agreement and the
transactions contemplated by the Merger Agreement, and neither Parent nor any of its affiliates will be entitled to bring or maintain any other legal proceeding against the Company or any of its affiliates arising out of the Merger Agreement, any of
the transactions contemplated by the Merger Agreement or any matters forming the basis for such termination, subject to the provisions regarding fraud and “willful breach” described in “— Effect of Termination” above. In no
event will Durata be required to pay the Durata Termination Fee on more than one occasion.
Specific Performance. The parties have
agreed that irreparable damage would occur in the event that any of the provisions of the Merger Agreement were not performed in accordance with their specific terms or were
43
otherwise breached. The parties further agreed that the parties will be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of the
Merger Agreement and to enforce specifically the terms and provisions of the Merger Agreement, without proof of damages or otherwise, in addition to any other remedy to which they are entitled at law or in equity.
Expenses. All costs and expenses incurred by the parties in connection with the Merger Agreement and the transactions contemplated
thereby will be paid by the party incurring such costs and expenses, except that Parent has agreed to reimburse Durata for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorney’s fees) incurred by Durata
and its representatives in connection with their respective obligations pursuant to the Financing cooperation provisions contained in the Merger Agreement.
Offer Conditions. The Offer Conditions are described in Section 15 — “Conditions of the Offer.”
Support Agreement
In connection
with entering into the Merger Agreement, Parent and Purchaser entered into the Support Agreement with certain funds affiliated with Domain Associates and Canaan Partners, Paul R. Edick, Richard U. De Schutter, Corey N. Fishman, Michael W. Dunne,
John Shannon, Brenton K. Ahrens, Kevin C. O’Boyle, Lisa M. Giles, Paul A. Friedman, Nicole Vitullo and Wendy Yarno, all of which collectively own approximately 19% of the outstanding Shares as of October 5, 2014.
Pursuant to the Support Agreement, each Supporting Stockholder (other than Paul R. Edick, John Shannon and Richard U. De Schutter) has agreed
to tender in the Offer all Shares (including any and all Shares acquired by such Supporting Stockholder upon the exercise of options to purchase Shares after the date of the Support Agreement) beneficially owned by such Supporting Stockholder. In
addition, the Supporting Stockholders have agreed that, during the time the Support Agreement is in effect, at any meeting of Durata stockholders, or any adjournment or postponement thereof, such Supporting Stockholder will be present (in person or
by proxy) and vote (or cause to be voted), or deliver (or cause to be delivered) a written consent with respect to, all of its Shares:
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against any action or agreement that is intended or would reasonably be expected to (a) result in a breach of any covenant, representation or warranty or any other obligation or agreement of Durata contained in the
Merger Agreement, or of any Supporting Stockholder contained in the Support Agreement or (b) result in any of the Offer Conditions not being satisfied on or before the Outside Date; |
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against any change in the Durata Board; and |
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against any Takeover Proposal and against any other action, agreement or transaction involving Durata that is intended, or would reasonably be expected, to impede, interfere with, delay, postpone, adversely affect or
prevent the consummation of the Offer or the Merger or the other transactions contemplated by the Merger Agreement. |
Each
Supporting Stockholder also granted Parent an irrevocable proxy with respect to the foregoing.
Each of Paul R. Edick, John Shannon and
Richard U. De Schutter has agreed not to exercise any options to purchase Shares except with Parent’s prior written consent.
The
Supporting Stockholders further agreed to certain restrictions with respect to their Shares (and any outstanding options to purchase Shares), including restrictions on transfer, and agreed to comply with specified non-solicitation provisions.
The Support Agreement will terminate with respect to a particular Supporting Stockholder upon the earlier to occur of (a) the valid
termination of the Merger Agreement in accordance with its terms, (b) the Effective Time, (c) the entry without the prior written consent of such Supporting Stockholder into any amendment or
44
modification to the Merger Agreement or any waiver of any of Durata’s rights under the Merger Agreement, in each case, that results in a decrease in the Offer Price or changes the form of
consideration or the Milestones, Milestone Payment Dates or Milestone Payment (as each is defined in the CVR Agreement) in a manner adverse to the stockholders of Durata or (d) the mutual written consent of Parent and such Supporting
Stockholder.
The foregoing description of the Support Agreement does not purport to be complete and is qualified in its entirety by
reference to the full text of the Support Agreement which is filed as Exhibit (d)(3) of the Schedule TO.
CVR Agreement
Prior to the Acceptance Time, Parent will enter into the CVR Agreement with a rights agent mutually agreeable to Parent and Durata governing
the terms of the CVRs. The former holders of Shares, Company Options and Company Restricted Stock will be entitled to receive one CVR for each Share acquired by Purchaser in the Offer or converted into the right to receive the Merger Consideration
(or, in the case of Company Options and Company Restricted Stock, for each Share that would have been issuable upon the exercise or vesting thereof). Each CVR represents the right to receive the following cash payments, if any, without interest
thereon and less any applicable withholding taxes, with each payment conditioned upon the achievement of the applicable milestone as follows:
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Each CVR holder will be entitled to receive $1.00 per CVR payable by Parent if, prior to December 31, 2018, any Selling Entity (as defined in the CVR Agreement) receives approval from the European Medicines Agency
to market and sell dalbavancin in the European Union for the treatment of adult patients with acute bacterial skin and skin structure infections. |
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Each CVR holder will be entitled to receive $1.00 per CVR payable by Parent if, prior to December 31, 2018, authorization is received that permits any Selling Entity to market and sell dalbavancin with approved
labeling as a single dose infusion for the treatment of adult patients with acute bacterial skin and skin structure infections. |
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Each CVR holder will be entitled to receive $3.00 per CVR payable by Parent if the cumulative worldwide Net Revenues (as defined in the CVR Agreement) during the period beginning on January 1, 2016 and ending on
December 31, 2017, are equal to or exceed $600 million. |
The terms of the CVRs described above reflect the
parties’ agreement over the sharing of potential economic upside benefits from future net revenues of dalbavancin and do not necessarily reflect anticipated net revenues of dalbavancin. There can be no assurance that such levels of net revenues
will occur or that any or all of the payments in respect of the CVRs will be made.
Additionally, Parent and each other Selling Entity
have agreed to use commercially reasonable efforts to: (i) commercialize and sell dalbavancin during the period beginning on January 1, 2016, and ending on December 31, 2017; (ii) obtain approval by the European Commission of a
“marketing authorisation application” through the centralized procedure, to market and dalbavancin for the treatment of adult patients with acute baterial skin and skin structure infections in the Euopean Union; and
(iii) (A) complete Durata’s existing Phase 3b clinical trial to evaluate the efficacy and safety of a single dose of dalbavancin infused in adult patients with ABSSSI caused by susceptible Gram-positive bacteria (the “Single Dose
Study”), as well as all activities related to completing the Single Dose Study, filing the related supplemental “new drug application” and receiving the required approvals to permit the marketing and sale of dalbavancin with approved
labeling for a single dose (the “Single Dose Milestone”), and (B) file and seek approval for such applications for approval from the FDA as are necessary to achieve the Single Dose Milestone, including filing a supplemental “new
drug application” in respect thereof.
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The right to payments under the CVRs as evidenced by the CVR Agreement is a contractual right
only and will not be transferable, except in the limited circumstances specified in the CVR Agreement and set forth below:
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upon death by will or intestacy or by instrument to an inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries upon the death of the trustee; |
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pursuant to a court order; |
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made by operation of law (including a consolidation or merger) or without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other
entity; or |
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in the case of CVRs payable to a nominee, from a nominee to a beneficial owner (and, if applicable, through an intermediary) or from such nominee to another nominee for the same beneficial owner, in each case as
allowable by the Depository Trust Company. |
The foregoing description of the CVR Agreement does not purport to be complete
and is qualified in its entirety by reference to the full text of the CVR Agreement, a form of which is filed as Exhibit (d)(2) of the Schedule TO.
Confidentiality Agreement
On
October 2, 2014, Durata and Parent entered into a customary confidentiality agreement in connection with a possible transaction involving Durata. Under the Confidentiality Agreement, Parent agreed, subject to certain exceptions, to keep
confidential any confidential information concerning Durata furnished by Durata to Parent or its representatives.
| 12. |
Purpose of the Offer; Plans for Durata. |
Purpose of the Offer. The purpose of the
Offer is for Purchaser to acquire control of, and the entire equity interest in, Durata. The Offer, as the first step in the acquisition of Durata, is intended to facilitate the acquisition of all outstanding Shares. The purpose of the Merger is to
acquire all outstanding Shares not tendered and purchased pursuant to the Offer. If the Offer is successful, Purchaser intends to consummate the Merger as promptly as practicable in accordance with Section 251(h) of the DGCL.
If you sell your Shares in the Offer, you will cease to have any equity interest in Durata or any right to participate in its earnings and
future growth. If you do not tender your Shares, but the Merger is consummated, you also will no longer have an equity interest in Durata. Similarly, after selling your Shares in the Offer or the subsequent Merger, you will not bear the risk of any
decrease in the value of Durata.
Merger Without a Stockholder Vote. If the Offer is consummated, we will not seek the approval of
the remaining public stockholders of Durata before effecting the Merger. Section 251(h) of the DGCL provides that following consummation of a successful tender offer for a public corporation, and subject to certain statutory provisions, if the
acquirer holds at least the amount of shares of each class of stock of the target corporation that would otherwise be required to approve a merger for the target corporation, and the other stockholders receive the same consideration for their stock
in the merger as was payable in the tender offer, the acquirer can effect a merger without the action of the other stockholders of the target corporation. Accordingly, if we consummate the Offer, we will effect the closing of the Merger without a
vote of the stockholders of Durata in accordance with Section 251(h) of the DGCL.
Plans for Durata. As soon as
practicable after the consummation of the Merger, Actavis will integrate the business, operations and assets of Durata with Actavis’ existing business. The common stock of Durata will be delisted and no longer be quoted on NASDAQ.
To the best knowledge of Actavis, Purchaser and Parent, except for certain pre-existing agreements to be described in the Schedule 14D-9, no
employment, equity contribution, or other agreement, arrangement or understanding between any executive officer or director of Durata, on the one hand, and Actavis, Parent,
46
Purchaser or Durata, on the other hand, existed as of the date of the Merger Agreement, and neither the Offer nor the Merger is conditioned upon any executive officer or director of Durata
entering into any such agreement, arrangement or understanding.
It is possible that certain members of Durata’s current management
team will enter into new employment arrangements with Durata after the completion of the Offer and the Merger. Any such arrangements with the existing management team are currently expected to be entered into after the completion of the Offer and
will not become effective until the time the Merger is completed, if at all. There can be no assurance that any parties will reach an agreement on any terms, or at all.
The board of directors and officers of the Surviving Corporation at and immediately following the Effective Time will consist of the members
of the board of directors and officers, respectively, of Purchaser immediately prior to the Effective Time.
The certificate of
incorporation and bylaws of Purchaser immediately prior to the Effective Time will be the certificate of incorporation and bylaws of the Surviving Corporation at and immediately after the Effective Time, except that the name of the Surviving
Corporation will be “Durata Therapeutics, Inc.”
| 13. |
Certain Effects of the Offer. |
Market for the Shares. If the Offer is successful,
there will be no market for the Shares because Purchaser intends to consummate the Merger as promptly as practicable following the Offer Closing.
Stock Quotation. The Shares are currently listed on NASDAQ. Immediately following the consummation of the Merger (which is expected to
occur as promptly as practicable following the Offer Closing), the Shares will no longer meet the requirements for continued listing on NASDAQ because the only stockholder will be Purchaser. NASDAQ requires, among other things, that any listed
shares of common stock have at least 400 total stockholders. Immediately following the consummation of the Merger, we intend and will cause Durata to delist the Shares from NASDAQ.
Margin Regulations. The Shares are currently “margin securities” under the Regulations of the Board of Governors of the
Federal Reserve System (the “Federal Reserve Board”), which has the effect, among other things, of allowing brokers to extend credit on the collateral of the Shares. Depending upon factors similar to those described above regarding the
market for the Shares and stock quotations, it is possible that, following the Offer, the Shares would no longer constitute “margin securities” for the purposes of the margin regulations of the Federal Reserve Board and, therefore, could
no longer be used as collateral for loans made by brokers.
Exchange Act Registration. The Shares are currently registered
under the Exchange Act. Such registration may be terminated upon application of Durata to the SEC if the Shares are neither listed on a national securities exchange nor held by 300 or more holders of record. Termination of registration of the Shares
under the Exchange Act would substantially reduce the information required to be furnished by Durata to its stockholders and to the SEC and would make certain provisions of the Exchange Act no longer applicable to Durata, such as the short-swing
profit recovery provisions of Section 16(b) of the Exchange Act, the requirement of furnishing a proxy statement pursuant to Section 14(a) of the Exchange Act in connection with stockholders’ meetings and the related requirement of
furnishing an annual report to stockholders and the requirements of Rule 13e-3 under the Exchange Act with respect to “going private” transactions. Furthermore, the ability of “affiliates” of Durata and persons holding
“restricted securities” of Durata to dispose of such securities pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended, may be impaired or eliminated. We intend and will cause Durata to terminate the registration of
the Shares under the Exchange Act as soon after consummation of the Offer as the requirements for termination of registration are met. If registration of the Shares is not terminated prior to the Merger, the registration of the Shares under the
Exchange Act will be terminated following the consummation of the Merger.
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| 14. |
Dividends and Distributions. |
The Merger Agreement provides that from the date of the
Merger Agreement to the Effective Time, without the prior written consent of Parent, Durata will not declare, set aside, make or pay any dividend or distribution (whether in cash, stock or property) on any shares of any Durata securities (including
the Shares) or set a record date therefor.
| 15. |
Conditions of the Offer. |
Notwithstanding any other provisions of the Offer and in
addition to Purchaser’s rights to extend, amend or terminate the Offer in accordance with the provisions of the Merger Agreement and applicable law, neither Parent nor Purchaser is required to accept for payment or, subject to any applicable
rules and regulations of the SEC including Rule 14e-1(c) under the Exchange Act, pay for any Shares validly tendered and not validly withdrawn, if:
| (a) |
there have not been validly tendered and not validly withdrawn that number of Shares that, when added to the Shares then owned by Parent and its subsidiaries, would represent one Share more than one half of all Shares
then outstanding; |
| (b) |
any waiting period (and any extension thereof) applicable to the Offer under the HSR Act has not terminated or expired prior to the Expiration Date; or |
| (c) |
any of the following events exist: |
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(i) |
any law or order, injunction or decree has been enacted, enforced, amended, issued, in effect or deemed applicable to the Offer, by any governmental entity (other than the application of the waiting period provisions of
the HSR Act to the Offer) that is in effect, or any governmental entity has taken any other action, in each case the effect of which is to make illegal or otherwise prohibit consummation of the Offer or the Merger; |
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(ii) |
Durata and Parent have reached an agreement that the Offer or the Merger Agreement be terminated, or the Merger Agreement has been terminated in accordance with its terms; |
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(iii) |
(A) any of the representations and warranties of Durata set forth in Sections 4.01 (other than the second and fourth sentence thereof), 4.03 or
4.06(a) of the Merger Agreement (relating to organization and qualification, authority to enter into the Merger Agreement, the actions of the Durata Board, and the absence of certain changes) are not true and correct in all respects as of the date
of the Merger Agreement and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (B) any of the representations and warranties of
Durata set forth in Section 4.02 of the Merger Agreement (relating to capitalization) are not true and correct in all respects as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date (except to
the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure to be so true and correct has not resulted and would not reasonably be expected to result in additional cost to Durata, Parent and
their affiliates, individually or in the aggregate, of more than $1.5 million (measured solely by reference to the Cash Consideration, without regard to amounts related to any CVR), (C) any of the representations and warranties of Durata set
forth in the fourth sentence of Section of 4.01, Section 4.08, Section 4.21, Section 4.22 or Section 4.23 of the Merger Agreement (relating to brokers and certain expenses, the opinion of Durata’s financial advisors, the
inapplicability of certain state takeover statutes, and Rule 14d-10 matters) are not true and correct in all material respects as of the date of the Agreement and as of the Expiration Date as though made on and as of such date (except to the extent
expressly made as of an earlier date, in which case as of such earlier date) or (D) any representations and warranties of Durata set forth in the Merger Agreement (other than those listed in the preceding clauses (c)(iii)(A), (c)(iii)(B) and
(c)(iii)(C)) are not true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Material Adverse Effect,” “in all material respects,” “in any material respect,”
“material,” “materially” or words of |
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similar import set forth therein) as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier
date, in which case as of such earlier date), except, in the case of this clause (c)(iii)(D), where the failure of any such representations and warranties to be so true and correct has not had and would not be reasonably expected to result in,
individually or in the aggregate, a Material Adverse Effect; |
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(iv) |
Durata has failed to perform or comply with in any material respect any obligation, agreement or covenant required to be performed or complied with by it under the Merger Agreement on or prior to the Expiration Date;
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(v) |
since the date of the Merger Agreement, there has occurred any change, state of facts, condition, event, circumstance, effect, occurrence or development that has had or would reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect; or |
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(vii) |
Purchaser has failed to receive a certificate of Durata executed by its chief executive officer or the chief financial officer, dated as of the Expiration Date, to the effect that the conditions set forth in paragraphs
(c)(iii), (c)(iv) and (c)(v) above have been satisfied. |
The foregoing conditions are in addition to, and not a limitation of, the rights of
Parent and Purchaser to extend, terminate or modify the Offer pursuant to the terms of the Merger Agreement.
The foregoing conditions are
for the sole benefit of Parent and Purchaser, may be asserted by Parent or Purchaser regardless of the circumstances giving rise to any such conditions, and may be waived by Parent or Purchaser in whole or in part at any time and from time to time
in their sole and absolute discretion (except for the Minimum Condition), in each case, subject to the terms of the Merger Agreement and the applicable rules and regulations of the SEC. The failure by Parent or Purchaser at any time to exercise any
of the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which may be asserted at any time and from time to time. However, without the consent of Durata, we are not permitted to
(i) decrease the Offer Price or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer Conditions or
amend any Offer Condition, (iv) waive or amend the Minimum Condition, (v) amend any other term of the Offer in a manner that is adverse to the holders of Shares or (vi) extend the Expiration Date except as required or permitted by the
terms of the Merger Agreement.
| 16. |
Certain Legal Matters; Regulatory Approvals. |
General. Except as described in
this Section 16, based on our examination of publicly available information filed by Durata with the SEC and other information concerning Durata, we are not aware of any governmental license or regulatory permit that appears to be material to
Durata’s business that might be adversely affected by our acquisition of Shares as contemplated herein or of any approval or other action by any governmental, administrative or regulatory authority or agency, domestic or foreign, that would be
required for the acquisition or ownership of Shares by Purchaser or Parent as contemplated herein. Should any such approval or other action be required, we currently contemplate that, except as described below under “State Takeover Laws,”
such approval or other action will be sought. While we do not currently intend to delay acceptance for payment of Shares tendered pursuant to the Offer pending the outcome of any such matter, there can be no assurance that any such approval or other
action, if needed, would be obtained or would be obtained without substantial conditions or that if such approvals were not obtained or such other actions were not taken, adverse consequences might not result to Durata’s business, any of which
under certain conditions specified in the Merger Agreement, could cause us to elect to terminate the Offer without the purchase of Shares thereunder under certain conditions. See Section 15 — “Conditions of the Offer.”
Compliance with the HSR Act. Under the HSR Act, and the related rules and regulations promulgated by the FTC, certain
transactions may not be consummated until specified information and documentary material
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(“Premerger Notification and Report Forms”) have been furnished to the FTC and the Antitrust Division and certain waiting period requirements have been satisfied. The requirements
of the HSR Act apply to the acquisition of Shares in the Offer.
Under the HSR Act, our purchase of Shares in the Offer may not be
completed until the expiration of a 15 calendar day waiting period following the filing by Actavis, on behalf of Purchaser, of a Premerger Notification and Report Form concerning the Offer with the FTC and the Antitrust Division, unless the waiting
period is earlier terminated by the FTC and the Antitrust Division. If the 15 calendar day waiting period expires on a Saturday, Sunday, or legal public holiday, the waiting period is automatically extended to the end of the next day that is not a
Saturday, Sunday, or legal public holiday. Each of Parent and Durata expect to file by October 20, 2014 a Premerger Notification and Report Form with the FTC and the Antitrust Division in connection with the purchase of Shares in the Offer.
Assuming such filings will be made on October 20, 2014, the required waiting period with respect to the Offer will expire at 11:59 p.m., New York City time, on November 4, 2014, unless earlier terminated by the FTC and the Antitrust
Division, Parent and Durata 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. If within the 15 calendar day waiting period either the FTC or the Antitrust Division issues a Second Request, the waiting period with respect to the Offer would be extended until 10 calendar days following the date of substantial
compliance by Parent with that request, unless the FTC or the Antitrust Division terminates the additional waiting period before its expiration. After the expiration of such 10 calendar day waiting period, such waiting period may only be extended by
court order or with the consent of Parent. In practice, complying with a Second Request can take a significant period of time. Although Durata is required to file a Premerger Notification and Report Form with the FTC and the Antitrust Division in
connection with the Offer, neither Durata’s failure to file such Premerger Notification and Report Form nor a Second Request issued to Durata from the FTC or the Antitrust Division will extend the waiting period with respect to the purchase of
Shares in the Offer. Once the HSR Act waiting period applicable to the Offer expires or is terminated, any purchases by Parent of Shares of Durata, whether made pursuant to the Offer or not, will be covered for a one-year period following the
expiration or termination of the HSR Act waiting period applicable to the Offer. No additional filings will be required under the HSR Act.
The FTC or the Antitrust Division will review the legality under the U.S. federal antitrust laws of Purchaser’s proposed acquisition of
Durata. At any time before or after Purchaser’s acceptance for payment of Shares pursuant to the Offer, if the Antitrust Division or the FTC believes that the Offer would violate the U.S. federal antitrust laws by substantially lessening
competition in any line of commerce affecting U.S. consumers, the FTC and the Antitrust Division have the authority to challenge the transaction by seeking a federal court order enjoining the transaction or, if Shares have already been acquired,
requiring disposition of such Shares, or the divestiture of substantial assets of Parent, Purchaser, Durata, or any of their respective subsidiaries or affiliates or requiring other conduct relief. United States state attorneys general and private
persons may also bring legal action under the antitrust laws seeking similar relief or seeking conditions to the completion of the Offer. While Parent believes that consummation of the Offer would not violate any antitrust laws, there can be no
assurance that a challenge to the Offer on antitrust grounds will not be made or, if a challenge is made, what the result will be. See Section 15 — “Conditions of the Offer.”
State Takeover Laws. Durata is incorporated under the laws of the State of Delaware. In general, Section 203 of the DGCL prevents
a Delaware corporation from engaging in a “business combination” (defined to include mergers and certain other actions) with an “interested stockholder” (including a person who owns or has the right to acquire 15% or more of a
corporation’s outstanding voting stock) for a period of three years following the date such person became an “interested stockholder” unless, among other things, the “business combination” is approved by the board of
directors of such corporation before such person became an “interested stockholder.” The Durata Board has approved the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, for purposes of
Section 203 of the DGCL.
Durata, directly or through subsidiaries, conducts business in a number of states throughout the
United States, some of which have enacted takeover laws. We do not know whether any of these laws will, by their
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terms, apply to the Offer or the Merger and have not attempted to comply with any such laws. Should any person seek to apply any state takeover law, we will take such action as then appears
desirable, which may include challenging the validity or applicability of any such statute in appropriate court proceedings. In the event any person asserts that the takeover laws of any state are applicable to the Offer or the Merger, and an
appropriate court does not determine that it is inapplicable or invalid as applied to the Offer or the Merger, we may be required to file certain information with, or receive approvals from, the relevant state authorities. In addition, if enjoined,
we may be unable to accept for payment any Shares tendered pursuant to the Offer, or be delayed in continuing or consummating the Offer and the Merger. In such case, we may not be obligated to accept for payment any Shares tendered in the Offer. See
Section 15 — “Conditions of the Offer.”
Going Private Transactions. The SEC has adopted Rule 13e-3 under the
Exchange Act, which is applicable to certain “going private” transactions, and which may under certain circumstances be applicable to the Merger or other business combination following the purchase of Shares pursuant to the Offer in which
we seek to acquire the remaining Shares not then held by us. We believe that Rule 13e-3 under the Exchange Act will not be applicable to the Merger because we were not, at the time the Merger Agreement was executed, and are not, an affiliate of
Durata (for purposes of the Exchange Act); it is anticipated that the Merger will be effected as soon as practicable after the consummation of the Offer (and in any event within one year following the consummation of the Offer); and, in the Merger,
stockholders will receive the same price per Share as the Offer Price.
Stockholder Approval Not Required.
Section 251(h) of the DGCL provides that stockholder approval of a merger is not required if certain requirements are met, including that (1) the acquiring company consummates a tender offer for any and all of the outstanding common stock
of the company to be acquired that, absent Section 251(h) of the DGCL, would be entitled to vote on the merger, (2) following the consummation of such tender offer, the acquiring company owns at least such percentage of the stock of the
company to be acquired that, absent Section 251(h) of the DGCL, would be required to adopt the merger and (3) at the time that the board of directors of the company to be acquired approves the merger, no other party to the merger agreement
is an interested stockholder under the DGCL. If the Minimum Condition is satisfied and we accept Shares for payment pursuant to the Offer, we will hold a sufficient number of Shares to ensure that Durata will not be required to submit the adoption
of the Merger Agreement to a vote of the stockholders of Durata. Following the consummation of the Offer and subject to the satisfaction of the remaining conditions set forth in the Merger Agreement, Parent, Purchaser and Durata will take all
necessary and appropriate action to effect the Merger as promptly as practicable without a meeting of stockholders of Durata in accordance with Section 251(h) of the DGCL.
Certain Litigation. On October 10, 2014, a putative stockholder class action complaint, captioned Warren Campbell v. Durata
Therapeutics, Inc., et al., No. 10222 (Del. Ch. Ct.), was filed against Durata, the Durata Board, Parent, and others in Delaware Chancery Court. The complaint alleges that members of the Durata Board breached their fiduciary duties in
connection with the approval of the Merger and that Parent and Durata aided and abetted the alleged breach of fiduciary duties. The complaint alleges that the Durata directors breached their fiduciary duties in connection with the proposed
transaction by, among other things, conducting a flawed sale process, failing to maximize stockholder value and obtain the best financial and other terms, and failing to inform themselves of the value of Durata. The plaintiff seeks injunctive and
other equitable relief, including enjoining the defendants from consummating the Merger, in addition to other unspecified damages, fees and costs. Durata, Parent, and the Durata Board believe that the lawsuit is without merit and intend to defend it
vigorously.
Also on October 10, 2014, another putative stockholder class action complaint, captioned Shiva Stein v. Durata
Therapeutics, Inc., et al., No. 2014-CH-16430 (Ill. Cir. Ct.), was filed against Durata, the Durata Board, Parent, and Purchaser in the Circuit Court of Cook County, Illinois. The complaint alleges that members of the Durata Board breached their
fiduciary duties in connection with the approval of the Merger and that Durata, Parent and Purchaser aided and abetted the alleged breach of fiduciary duties. The complaint alleges that the Durata directors breached their fiduciary duties in
connection with the proposed transaction by, among other things, conducting a flawed sale process, failing to maximize stockholder value and obtain the best financial and
51
other terms, and failing to inform themselves of the value of Durata. The plaintiff seeks injunctive and other equitable relief, including enjoining the defendants from consummating the Merger,
in addition to other unspecified damages, fees and costs. Durata, Parent, and the Durata Board believe that the lawsuit is without merit and intend to defend it vigorously.
Holders of Shares will not have appraisal rights in connection with
the Offer. If the Offer is consummated, and the Merger is thereafter effected, however, Durata stockholders who (i) did not tender their Shares in the Offer, (ii) comply in all respects with the applicable statutory procedures under
Section 262 of the DGCL, and (iii) do not thereafter withdraw their demand for appraisal of such Shares or otherwise lose their appraisal rights, will be entitled to receive a judicial determination of the fair value of their Shares
(exclusive of any element of value arising from the accomplishment or expectation of the Merger) and to receive payment of such fair value in cash, together with a fair rate of interest, if any, for their Shares. Any such judicial determination of
the fair value of Shares could be based upon considerations other than, or in addition to, the price paid in the Merger and the market value of the Shares, including asset values and the investment value of the Shares. The value so determined could
be more or less than, or the same as, the price paid by Purchaser pursuant to the Merger. Moreover, Purchaser may argue in an appraisal proceeding that, for purposes of such a proceeding, the fair value of such Shares is less than the price paid in
the Merger.
Under Section 262 of the DGCL, where a merger is approved under Section 251(h) of the DGCL, either a
constituent corporation before the effective date of the merger, or the surviving corporation within 10 days thereafter, shall notify each of the holders of any class or series of stock of such constituent corporation who are entitled to appraisal
rights of the approval of the merger and that appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such notice a copy of Section 262 of the DGCL. The
Schedule 14D-9 constitutes the formal notice of appraisal rights under Section 262 of the DGCL. Any holder of Shares who wishes to exercise such appraisal rights or who wishes to preserve his, her or its right to do so, should review the
discussion of appraisal rights in the Schedule 14D-9 as well as Section 262 of the DGCL, attached as Annex II to the Schedule 14D-9, carefully because failure to timely and properly comply with the procedures specified may result in the loss of
appraisal rights under the DGCL.
As described more fully in the Schedule 14D-9, if a stockholder elects to exercise appraisal
rights under Section 262 of the DGCL with respect to Shares held immediately prior to the Effective Time, such stockholder must do all of the following:
| |
• |
|
the stockholder must deliver to Durata a written demand for appraisal by the later of the consummation of the Offer and 20 days after the date of mailing of the Schedule 14D-9 (which date of mailing is October 20,
2014), which demand must reasonably inform Durata of the identity of the stockholder; |
| |
• |
|
the stockholder must not tender his, her or its Shares pursuant to the Offer; and |
| |
• |
|
the stockholder must continuously hold the Shares of record from the date of making the demand through the Effective Time. |
The foregoing summary of the rights of Durata’s stockholders to seek appraisal rights under Delaware law is qualified in its entirety
by reference to Section 262 of the DGCL. The proper exercise of appraisal rights requires strict adherence to the applicable provisions of the DGCL. A copy of Section 262 of the DGCL is included as Annex II to the Schedule 14D-9.
The information provided above is for informational purposes only with respect to your alternatives if the Merger is completed. If you tender
your shares in the Offer, you will not be entitled to exercise appraisal rights with respect to your shares but, instead, upon the terms and subject to the conditions of the Offer, you will receive the Offer Price for your Shares.
52
Parent has retained MacKenzie Partners, Inc. to be the Information
Agent and Computershare Trust Company, N.A. to be the depositary and paying agent (the “Depositary”) in connection with the Offer. The Information Agent may contact holders of Shares by mail, telephone, telecopy, telegraph and personal
interview and may request banks, brokers, dealers and other nominees to forward materials relating to the Offer to beneficial owners of Shares.
The Information Agent and the Depositary each will receive reasonable and customary compensation for their respective services in connection
with the Offer, will be reimbursed for reasonable out-of-pocket expenses and will be indemnified against certain liabilities and expenses in connection therewith, including certain liabilities under federal securities laws.
Neither Parent nor Purchaser will pay any fees or commissions to any broker or dealer or to any other person (other than to the Depositary and
the Information Agent) in connection with the solicitation of tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust companies will, upon request, be reimbursed by Purchaser for customary mailing and handling expenses
incurred by them in forwarding offering materials to their customers. In those jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of Purchaser by one or
more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. In those jurisdictions where applicable laws
require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.
No person has been authorized to give any information or to make any representation on behalf of Parent or Purchaser not contained herein
or in the Letter of Transmittal, and, if given or made, such information or representation must not be relied upon as having been authorized. No broker, dealer, bank, trust company, fiduciary or other person shall be deemed to be the agent of
Purchaser, the Depositary or the Information Agent for the purpose of the Offer.
Purchaser has filed with the SEC a Tender Offer
Statement on Schedule TO pursuant to Rule 14d-3 of the General Rules and Regulations under the Exchange Act, together with exhibits furnishing certain additional information with respect to the Offer, and may file amendments thereto. Durata has
advised Purchaser that it will file no later than October 17, 2014 with the SEC its Solicitation/Recommendation Statement on Schedule 14D-9 setting forth the recommendation of the Durata Board with respect to the Offer and the reasons for such
recommendation and furnishing certain additional related information. A copy of such documents, and any amendments thereto, may, when filed, be examined at, and copies may be obtained from, the SEC in the manner set forth under Section 7 —
“Certain Information Concerning Durata” above.
Delaware Merger Sub, Inc.
October 17, 2014
53
SCHEDULE I — INFORMATION RELATING TO ACTAVIS, PARENT AND
PURCHASER
Actavis
The
following table sets forth information about Actavis’ directors and executive officers as of October 17, 2014. The current business address of each person is c/o Actavis plc, 1 Grand Canal Square, Docklands, Dublin 2, Ireland, and the
business telephone number is (862) 261-7000.
|
|
|
|
|
|
|
|
|
| Name |
|
Age |
|
|
Citizenship |
|
Position |
| Paul M. Bisaro |
|
|
54 |
|
|
US |
|
Executive Chairman |
| Brent L. Saunders |
|
|
44 |
|
|
US |
|
Chief Executive Officer & President |
| Robert A. Stewart |
|
|
47 |
|
|
US |
|
Chief Operating Officer |
| R. Todd Joyce |
|
|
56 |
|
|
US |
|
Chief Financial Officer — Global |
| David A. Buchen |
|
|
50 |
|
|
US |
|
EVP, Commercial, North American Generics and International |
| Bill Meury |
|
|
46 |
|
|
US |
|
EVP, Commercial, North American Brands |
| Charles M. Mayr |
|
|
57 |
|
|
US |
|
Chief Communications Officer — Global |
| A. Robert D. Bailey |
|
|
51 |
|
|
US |
|
Chief Legal Officer and Corporate Secretary |
| Albert Paonessa III |
|
|
51 |
|
|
US |
|
President — Anda, Inc. |
| Karen Ling |
|
|
51 |
|
|
US |
|
Chief Human Resources Officer |
| James C. D’Arecca |
|
|
43 |
|
|
US |
|
Chief Accounting Officer |
| Nesli Basgoz, M.D. |
|
|
57 |
|
|
US |
|
Director |
| James H. Bloem |
|
|
64 |
|
|
US |
|
Director |
| Christopher W. Bodine |
|
|
59 |
|
|
US |
|
Director |
| Christopher J. Coughlin |
|
|
62 |
|
|
US |
|
Director |
| Tamar D. Howson |
|
|
66 |
|
|
US |
|
Director |
| John A. King, Ph.D |
|
|
65 |
|
|
Ireland |
|
Director |
| Catherine M. Klema |
|
|
56 |
|
|
US |
|
Director |
| Jiri Michal |
|
|
63 |
|
|
Czech
Republic |
|
Director |
| Patrick J. O’Sullivan |
|
|
73 |
|
|
Ireland |
|
Director |
| Ronald R. Taylor |
|
|
66 |
|
|
US |
|
Director |
| Andrew L. Turner |
|
|
67 |
|
|
US |
|
Director |
| Fred G. Weiss |
|
|
73 |
|
|
US |
|
Director |
Executive Officers and Directors of Actavis
Mr. Bisaro has served as Executive Chairman of Actavis since July 2014 and as Actavis’ chairman of the Board of
Directors since October 2013, prior to which he served on the Board of Directors of Actavis, Inc. since September 2007. He served as Chief Executive Officer of Actavis from September 2007 to July 2014. Prior to joining Actavis, Mr. Bisaro was
President, Chief Operating Officer and a member of the Board of Directors of Barr Pharmaceuticals, Inc. (“Barr”) from 1999 to 2007. Between 1992 and 1999, Mr. Bisaro served as General Counsel of Barr and from 1997 to 1999 served in
various additional capacities including Senior Vice President — Strategic Business Development. Prior to joining Barr, he was associated with the law firm Winston & Strawn and a predecessor firm, Bishop, Cook, Purcell and Reynolds from
1989 to 1992. Mr. Bisaro also currently serves on the Boards of Visitors of the Catholic University of America’s Columbus School of Law and Zimmer Holdings, Inc. Mr. Bisaro received his undergraduate degree in General Studies from the
University of Michigan in 1983 and a Juris Doctor from Catholic University of America in Washington, D.C. in 1989.
Mr. Saunders assumed the role of Chief Executive Officer and President of Actavis in July 2014. He previously served
as Chief Executive Officer and President of Forest Laboratories, Inc. (“Forest”) and had served as a Director of Forest since 2011. Prior to joining Forest, he served as the Chief Executive Officer and board member of Bausch + Lomb
Incorporated from March 2010 until August 2013. Mr. Saunders served as a senior executive with Schering-Plough from 2003 to 2010, most recently as President of Global Consumer Health Care.
54
He also served as Head of Integration for both Schering-Plough’s merger with Merck & Co. and for its $16 billion acquisition of Organon BioSciences. Before joining Schering-Plough,
Mr. Saunders was a Partner and Head of the Compliance Business Advisory Group at PricewaterhouseCoopers LLP from 2000 to 2003. Prior to that, he was Chief Risk Officer at Coventry Health Care between 1998 and 1999 and a co-founder of the Health
Care Compliance Association in 1995. Mr. Saunders began his career as Chief Compliance Officer for the Thomas Jefferson University Health System. He received a B.A. from the University of Pittsburgh, an M.B.A. from Temple University School of
Business, and a J.D. from Temple University School of Law.
Mr. Stewart was appointed President, Global Operations on
April 27, 2012. As President, Global Operations, Mr. Stewart is responsible for managing Actavis’ Anda, Inc. distribution business, in addition to Global Operations. He had served as Executive Vice President, Global Operations, since
August 2010. He joined Actavis in November 2009 as Senior Vice President, Global Operations. Prior to joining Actavis, Mr. Stewart held various positions with Abbott Laboratories, Inc. from 2002 until 2009 where he most recently served as
Divisional Vice President, Global Supply Chain. From 2005 until 2008, he served as Divisional Vice President, Quality Assurance and prior to this position served as Divisional Vice President for U.S./Puerto Rico and Latin America Plant Operations as
well as Director of Operations for Abbott’s Whippany plant. Prior to joining Abbott Laboratories, Inc., he worked for Knoll Pharmaceutical Company from 1995 to 2001 and Hoffman La-Roche Inc. Mr. Stewart received B.S. degrees in Business
Management / Finance in 1994 from Fairleigh Dickinson University.
Mr. Joyce has served as Chief Financial Officer
— Global of Actavis since April 27, 2012. Mr. Joyce had served as Executive Vice President, Chief Financial Officer since March 2011. He had previously served as Senior Vice President, Chief Financial Officer of Actavis from October
2009 to March 2011. Mr. Joyce joined Actavis in 1997 as Corporate Controller, and was named Vice President, Corporate Controller and Treasurer in 2001. During the periods October 2006 to November 2007 and from July 2009 until his appointment as
Chief Financial Officer, Mr. Joyce served as interim Principal Financial Officer of Actavis. Prior to joining Actavis, Mr. Joyce served as Vice President of Tax from 1992 to 1996 and as Vice President of Tax and Finance from 1996 until
1997 at ICN Pharmaceuticals. Prior to ICN Pharmaceuticals, Mr. Joyce served as a Certified Public Accountant with Coopers & Lybrand and Price Waterhouse. Mr. Joyce received a B.S. in Business Administration from the University of
North Carolina at Chapel Hill in 1983 and a M.S. in Taxation from Golden Gate University in 1992.
Mr. Buchen was
appointed Chief Legal Officer — Global and Secretary on April 27, 2012. He also serves as Secretary to Actavis’ Board of Directors. Mr. Buchen had served as Executive Vice President, General Counsel and Secretary since March
2011. He had served as Senior Vice President, General Counsel and Secretary from November 2002 to March 2011. From November 2000 to November 2002, Mr. Buchen served as Vice President and Associate General Counsel. From February 2000 to November
2000, he served as Vice President and Senior Corporate Counsel. From November 1998 to February 2000, he served as Senior Corporate Counsel and as Corporate Counsel. He also served as Assistant Secretary from February 1999 to November 2002. Prior to
joining Actavis, Mr. Buchen was Corporate Counsel at Bausch & Lomb Surgical (formerly Chiron Vision Corporation) from November 1995 until November 1998 and was an attorney with the law firm of Fulbright & Jaworski, LLP.
Mr. Buchen received a B.A. in Philosophy from the University of California, Berkeley in 1985, and a Juris Doctor with honors from George Washington University Law School in 1989.
Mr. Meury was appointed Executive Vice President, Commercial, North American Brands effective July 1, 2014. Prior
to joining Actavis, he served as Executive Vice President, Sales and Marketing, of Forest. He joined Forest in 1993 and held positions in Marketing, New Products, Business Development, and Sales. Most recently, as Executive Vice President, Sales and
Marketing, Mr. Meury oversaw the activities of several departments including Product Management, Market Research, and Commercial Assessments, as well as Forest’s Global Marketing and Early Commercialization groups. Mr. Meury directed
10 product launches during his tenure at Forest. Before joining Forest, Mr. Meury worked in public accounting for Reznick Fedder & Silverman and in financial reporting for MCI Communications. He has a B.S. in Economics from the
University of Maryland.
55
Mr. Mayr was appointed Chief Communication Officer — Global on
April 27, 2012. Mr. Mayr joined Actavis as Senior Vice President, Corporate Affairs in September 2009. Prior to joining Actavis, Mr. Mayr operated advertising and public relations consulting company, serving such clients as Actavis,
the Generic Pharmaceuticals Association, Barr Pharmaceuticals, Inc. and a variety of professional associations and consumer products and service companies. Prior to starting his consultancy business, he served as director of corporate communications
for Barr. Prior to joining Barr, he served as director of global communications for Sterling Drug Inc., the global brand and consumer health products pharmaceutical subsidiary of Kodak. Mr. Mayr began his career as a broadcast and print
journalist and has a B.A. in journalism from New York University.
Mr. Bailey was appointed Chief Legal Officer and
Corporate Secretary effective July 1, 2014. Previously, Mr. Bailey served as Senior Vice President, Chief Legal Officer, General Counsel and Corporate Secretary of Forest. He previously served from 2007 to 2013 as Executive Vice President,
Law, Policy and Communications at Bausch + Lomb. Before joining Bausch + Lomb in 1994, Mr. Bailey was an attorney at Nixon Peabody (formerly Nixon Hargrave Devans & Doyle). Mr. Bailey received his law degree from the University of
Minnesota and his undergraduate degree from St. Olaf College in Northfield, MN.
Mr. Paonessa has served as Executive
Vice President, Chief Operating Officer of Anda, Actavis’ Distribution company following its acquisition of Andrx. Mr. Paonessa was appointed Anda Executive Vice President and Chief Operating Officer in August 2005 and had been with Anda
since Andrx acquired VIP in March 2000. From March 2000 through January 2002, Mr. Paonessa was Vice President, Operations of VIP. In January 2002, he became Vice President, Information Systems at Anda and in January 2004 was appointed Senior
Vice President, Sales at Anda. Mr. Paonessa received a B.A. from Bowling Green State University in 1983.
Ms. Ling
was appointed Chief Human Resources Officer effective July 1, 2014. Prior to joining Actavis, Ms. Ling served as Senior Vice President and Chief Human Resources Officer for Forest. Ms. Ling joined Forest in January 2014 from
Merck & Co., Inc., where she served as Senior Vice President, Human Resources, for the company’s Global Human Health and Consumer Care businesses worldwide. Prior to that role at Merck, she was Vice President, Compensation and
Benefits. Before Merck, Ms. Ling was Group Vice President, Global Compensation & Benefits at Schering-Plough. She also spent 14 years at Wyeth in various positions of responsibility in human resources as well as in Wyeth
Pharmaceutical’s Labor and Employment Department. Prior to joining Wyeth, Ms. Ling practiced corporate law with Goldstein and Manello, P.C. in Boston. Ms. Ling holds a B.A. from Yale University and a J.D. from Boston University School
of Law.
Mr. D’Arecca was appointed Chief Accounting Officer — Global, on August 7, 2013. Prior to
joining Actavis, Mr. D’Arecca held a similar position at Bausch & Lomb. Prior to joining Bausch & Lomb, Mr. D’Arecca worked for Merck & Co., Inc. where he was Executive Director and Business Development
Controller responsible for being the primary liaison between the Controller’s organization and the business development and corporate licensing functions. Prior to joining Merck, Mr. D’Arecca was Executive Director and Assistant
Controller at Schering-Plough. Mr. D’Arecca also spent 13 years with PricewaterhouseCoopers as a Certified Public Accountant. Mr. D’Arecca received his MBA from Columbia University and his BS in Accounting from Rutgers
University.
Dr. Basgoz is the Associate Chief for Clinical Affairs, Division of Infectious Diseases at Massachusetts
General Hospital (MGH) and serves on the hospital’s Board of Trustees. In addition, Dr. Basgoz is an Associate Professor of Medicine at Harvard Medical School. Previously, she served as Clinical Director in the Infectious Diseases Division
of MGH for six years. Dr. Basgoz earned her M.D. Degree and completed her residency in internal medicine at Northwestern University Medical School. She also completed a fellowship in the Infectious Diseases Division at the University of
California at San Francisco. She is board certified in both infectious diseases and internal medicine. Dr. Basgoz’s broad medical expertise and nationally recognized leadership in the medical field, as well as her extensive clinical trial
experience has equipped her to effectively advise the Board and management with respect to many strategic matters, including navigating regulatory approvals and the
56
clinical trial process. Moreover, her particular expertise in infectious diseases has enabled Dr. Basgoz to advise the Board and management with respect to the Company’s current and
potential portfolio of drugs within the relevant indications, including Forest’s recently launched Teflaro® product and other antibiotics under development at the Company.
Mr. Bloem joined the Board of Directors of Actavis in October 2013. He previously served as a member of the Warner Chilcott
plc (“Warner Chilcott”) Board of Directors since 2006 and was a member of the board of one of Warner Chilcott’s predecessor companies from 1996 to 2000. Mr. Bloem retired on December 31, 2013, after 13 years as Senior Vice
President, Chief Financial Officer and Treasurer of Humana Inc. (“Humana”), one of the nation’s largest health benefit companies. He joined Humana in 2001 and had responsibility for all of the Humana’s accounting, actuarial,
analytical, financial, tax, risk management, treasury and investor relations activities. Mr. Bloem also serves as Chairman of the Board of Directors of ResCare, Inc., as well as a director of Rotech Healthcare, Inc.
Mr. Bodine served as a member of Actavis’ Board of Directors since 2009 and joined Actavis’ Board of Directors in
October 2013. Mr. Bodine retired from CVS Caremark in January 2009 after 24 years with CVS. Prior to his retirement, Mr. Bodine served as President, Healthcare Services of CVS Caremark Corporation, where he was responsible for strategy,
business development, trade relations, sales and account management, pharmacy merchandising, marketing, information technology and Minute Clinic. Prior to the merger of CVS Corporation and Caremark Rx, Inc. in March 2007, Mr. Bodine served for
several years as Executive Vice President — Merchandising and Marketing of CVS Corporation. Mr. Bodine is active in the pharmaceutical industry, having served on a number of boards and committees, including the Healthcare Leadership
Council, RI Quality Institute, National Retail Federation, National Association of Chain Drug Stores (NACDS), and the NACDS Pharmacy Affairs and Leadership Committees. Mr. Bodine also currently serves as a director with Nash Finch. The Board
concluded that Mr. Bodine should serve on the Board because of his extensive industry experience and knowledge of the needs and operations of our major customers.
Mr. Coughlin most recently served as Executive Vice President and Chief Financial Officer of Tyco International from 2005
to 2010 and remains an advisor to Tyco. During his tenure, he played a central role in the separation of Tyco into three independent, public companies and provided financial leadership surrounding major transactions, including the $2 billion
acquisition of Broadview Security, among many other responsibilities and accomplishments. Prior to joining Tyco, he worked as the Chief Operating Officer of the Interpublic Group of Companies from June 2003 to December 2004, as Chief Financial
Officer from August 2003 to June 2004 and as a director from July 2003 to July 2004. Previously, Mr. Coughlin was Executive Vice President and Chief Financial Officer of Pharmacia Corporation from 1998 until its acquisition by Pfizer in 2003.
Prior to that, he was Executive Vice President of Nabisco Holdings and President of Nabisco International. From 1981 to 1996 he held various positions, including Chief Financial Officer, at Sterling Drug. Mr. Coughlin is currently serving as
the lead independent director on the board of Dun & Bradstreet, where he is a member of the Audit Committee and the Compensation and Benefits Committee. He also serves on the board of Covidien plc, where he is Chair of the Compliance
Committee and a member of its Transaction Committee. In addition, Mr. Coughlin previously served on the boards of the Interpublic Group of Companies, Monsanto Company and Perrigo Company. Mr. Coughlin has a B.S. in accounting from Boston
College. A veteran of service and leadership on public company boards, Mr. Coughlin’s wide array of senior management positions in global companies, pharmaceutical background, finance experience and compliance and governance expertise
enhances the Board’s ability to make strategic decisions for the long-term growth of Actavis.
Ms. Howson
previously served as a member of the Warner Chilcott Board of Directors since May 2013 and joined Actavis’ Board of Directors in October 2013. Ms. Howson has served as a corporate business development and strategy consultant to
biopharmaceutical companies since 2011. From 2009 to 2011, she served as a member of the transaction advisory firm JSB-Partners, providing business development support to life sciences companies, and from 2007 to 2008 she served as Executive Vice
President, Corporate Business Development at Lexicon Pharmaceuticals. Prior to joining Lexicon, Ms. Howson served as Senior Vice
57
President, Corporate and Business Development at Bristol-Myers Squibb from November 2001 until February 2007. Ms. Howson also serves on the boards of directors of Organovo Holdings Inc.,
Idenix Pharmaceuticals Inc. and OXiGENE, Inc., and is a director of the International Partnership for Microbicides, a non-profit product development partnership. Actavis’ Board concluded that Ms. Howson should serve on its Board because of
her extensive experience in the pharmaceutical industry, including as a consultant to a number of biopharmaceutical companies and a senior professional at leading pharmaceutical companies, including Bristol-Myers Squibb and SmithKline Beecham, as
well as her service on the boards of directors of other public companies and her significant business development expertise.
Dr. King joined Actavis’ Board in October 2013 and previously served as the former Non-Executive Chairman of the
Warner Chilcott Board of Directors, having joined the Warner Chilcott board in June 2005. Dr. King served in positions of increasing responsibility with Warner Chilcott’s predecessors for 26 years, most recently as Executive Chairman of
Galen Holdings Ltd., a position he held from 2000 until January 2005. Actavis’ Board concluded that Dr. King should serve on its Board because of his extensive knowledge of the pharmaceutical industry, including a thorough understanding of
pharmaceutical research and development practices which dates back to his early experience as a university lecturer, as well as his over thirty years of experience in various roles with Warner Chilcott and its predecessors.
Ms. Klema served as a member of Actavis’ Board of Directors since 2004 and joined our Board of Directors in October
2013. She is currently President of Nettleton Advisors LLC, a consulting firm established by Ms. Klema in 2001. Prior to establishing her firm, Ms. Klema served as Managing Director, Healthcare Investment Banking, at SG Cowen Securities
from 1997 to 2001. Ms. Klema also served as Managing Director, Healthcare Investment Banking, at Furman Selz LLC from 1994 until 1997, and was employed by Lehman Brothers from 1987 until 1994. Ms. Klema served as a director of
Pharmaceutical Product Development, Inc., a global contract research organization, from 2000 to 2011. In March 2012, Ms. Klema was appointed to the Montefiore Medical Center Board of Trustees. Actavis’ Board concluded that
Ms. Klema’s qualifications for service on our Board include her background in healthcare investment banking and her knowledge of the business of pharmaceutical research and development.
Mr. Michal has served as a member of Actavis’ Board of Directors since 2013. He most recently served as Chairman of
the Board and Chief Executive Officer of Zentiva until 2010. During his 36-year involvement with the company, which included 20 years as CEO, Mr. Michal held numerous positions and directed the growth of the company through several
acquisitions, initiated modernization and privatization and lead a successful management buy-out, culminating in a successful initial public offering in 2004. In 2009, Zentiva became part of Sanofi Group. Mr. Michal was appointed Chairman of
the Board of Prague Chemical University in 2011, and is an acting member of the Board of Directors of Moser in the Czech Republic. Actavis’ Board concluded that Mr. Michal should serve on its Board because of his extensive industry
experience and knowledge of the needs of our supply chain and operations, particularly outside of the U.S.
Mr. O’Sullivan previously served as a member of Warner Chilcott’s Board of Directors since 2009 and joined
Actavis’ Board of Directors in October 2013. Prior to his retirement in 2006, Mr. O’Sullivan served in positions of increasing responsibility with LEO Pharma A/S (“LEO”) for more than 30 years, most recently as the Chief
Executive Officer of LEO Pharma Ireland and as a director of LEO. He also served as a director of LEO Pharmaceuticals Ltd. UK, LEO Pharma SA France and The LEO Foundation. Mr. O’Sullivan is a registered pharmacist, a member and honorary
fellow of the Pharmaceutical Society of Ireland and a Knight of the Order of the Dannebrog. Currently, Mr. O’Sullivan is a pharmaceutical business consultant and serves on the Board of Directors of Amarin Corporation plc, where he is a
member of the audit committee, nominating committee and corporate governance committee. Actavis’ Board concluded that Mr. O’Sullivan should serve on the Board because of his demonstrated management ability at senior levels within the
pharmaceutical industry, his knowledge of the financial, operational and strategic requirements of a successful international business, which he developed as Chief Executive Officer of LEO Pharma Ireland, and his understanding of the fundamentals of
the healthcare industry.
58
Mr. Taylor served as a member of the Actavis’ Board of Directors since
1994 and joined our Board of Directors in October 2013. Mr. Taylor is the President of Tamarack Bay, LLC, a private consulting firm. He has been a director of Red Lion Hotels Corporation, a hotel operating company, since 1998 and a director of
ResMed Inc., a medical device manufacturer, since 2005. Prior to forming Tamarack Bay, Mr. Taylor was a general partner of Enterprise Partners Venture Capital, a venture capital firm, from 1998 until 2001. Actavis’ Board concluded that
Mr. Taylor should serve on its Board because of his experience as a founder of a successful business and his expertise in evaluating and investing in healthcare companies.
Mr. Turner served as a member of Actavis’ Board of Directors since 1997 and joined its Board of Directors in October
2013. He was appointed as the Chairman of Actavis’ Board of Directors in May 2008 and served in this capacity until October 2013, at which time he became our lead independent director. He is the founder and currently serves as Manager of
Trinity Health Systems, an owner of senior housing properties. Mr. Turner currently serves as the Chairman of the Compensation Committee of Streamline Health Solutions (NASDAQ), a provider of software for document solutions in hospitals, where
he has been a director since 2007, and also serves as a director of Aston Healthcare Ltd., an operator of senior housing properties in the United Kingdom. Actavis’ Board concluded that Mr. Turner’s qualifications for service on our
Board include his extensive experience as a healthcare entrepreneur and his deep knowledge of our Company and business.
Mr. Weiss served as a member of Actavis’ Board of Directors since 2000 and joined its Board of Directors in October
2013. Mr. Weiss is the managing director of the consulting firm FGW Associates, Inc., a position he has held since 1997, and prior to that served as an executive for Warner-Lambert for nearly 20 years, most recently as Vice President, Planning,
Investment and Development. Mr. Weiss is also an Independent Vice-Chairman of the Board and Chairman of the Audit Committee of numerous BlackRock-sponsored mutual funds. In this capacity, and pursuant to BlackRock’s policies,
Mr. Weiss has oversight responsibility for finance and accounting matters, and has no responsibility for, or discretion concerning, any of BlackRock’s equity investment decisions. Additionally, Mr. Weiss has been a Director of the
Michael J. Fox Foundation for Parkinson’s Research since 2000. Actavis’ Board concluded that Mr. Weiss is qualified to serve as a member of our Board of Directors because of, among other factors, his financial expertise and experience
in strategic planning and corporate development.
Parent
The following table sets forth information about Parent’s directors and executive officers as of October 17, 2014. The current
business address of each person is c/o Actavis W.C. Holding Inc., Morris Corporate Center III 400 Interpace Parkway, Parsippany, NJ 07054, and the business telephone number is (862) 261-7000.
|
|
|
|
|
|
|
|
|
| Name |
|
Age |
|
|
Citizenship |
|
Position |
| Paul M. Bisaro |
|
|
54 |
|
|
US |
|
Director, President and Chief Executive Officer |
| Robert A. Stewart |
|
|
47 |
|
|
US |
|
President, Global Operations |
| R. Todd Joyce |
|
|
56 |
|
|
US |
|
Chief Financial Officer — Global and Principal Accounting Officer |
| David A. Buchen |
|
|
50 |
|
|
US |
|
Chief Legal Officer — Global and Secretary |
| Charles M. Mayr |
|
|
57 |
|
|
US |
|
Chief Communications Officer — Global |
| Deborah Penza |
|
|
45 |
|
|
US |
|
Chief Compliance Officer |
| James C. D’Arecca |
|
|
43 |
|
|
US |
|
Chief Accounting Officer — Global |
Executive Officers and Directors of Parent
Mr. Bisaro. See information provided for Actavis above.
Mr. Stewart. See information provided for Actavis above.
Mr. Joyce. See information provided for Actavis above.
59
Mr. Buchen. See information provided for Actavis above.
Mr. Mayr. See information provided for Actavis above.
Ms. Penza has served as Parent’s Chief Compliance Officer since 2013 and has been an Actavis employee since 2010.
Mr. D’Arecca. See information provided for Actavis above.
Purchaser
The following table
sets forth information about Purchaser’s directors and executive officers as of October 17, 2014. The current business address of each person is c/o Actavis W.C. Holding Inc., Morris Corporate Center III 400 Interpace Parkway, Parsippany,
NJ 07054, and the business telephone number is (862) 261-7000.
|
|
|
|
|
|
|
|
|
| Name |
|
Age |
|
|
Citizenship |
|
Position |
| A. Robert D. Bailey |
|
|
51 |
|
|
US |
|
Director and Vice President |
| Sigurd C. Kirk |
|
|
48 |
|
|
US |
|
President |
| Sheldon Hirt |
|
|
51 |
|
|
US |
|
Vice President |
| Rita Weinberger |
|
|
52 |
|
|
US |
|
Treasurer |
| Kira M. Schwartz |
|
|
41 |
|
|
US |
|
Director and Secretary |
Executive Officers and Directors of Purchaser
Mr. Bailey. See information provided for Actavis above.
Mr. Kirk has served as President since Purchaser’s formation on October 2, 2014. Mr. Kirk has been an Actavis employee
since 2009.
Mr. Hirt has served as Vice President since Purchaser’s formation on October 2, 2014. Mr. Hirt has been an
Actavis employee since 2009.
Ms. Weinberger has served as Treasurer since Purchaser’s formation on October 2, 2014.
Ms. Weinberger has been an Actavis employee since 1983.
Ms. Schwartz has served as Director and Secretary since
Purchaser’s formation on October 2, 2014. Ms. Schwartz has been an Actavis employee since 2008.
60
Manually signed facsimiles of the Letter of Transmittal, properly completed, will be accepted.
The Letter of Transmittal and certificates evidencing Shares and any other required documents should be sent or delivered by each stockholder or its, his or her broker, dealer, commercial bank, trust company or other nominee to the Depositary at one
of its addresses set forth below:
The Depositary for the Offer is:
|
|
|
| If delivering by mail: |
|
By overnight or courier: |
|
|
| Computershare Trust Company, N.A.
c/o Voluntary Corp Actions P.O. Box
43011 Providence, RI 02940-3011 |
|
Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions 250
Royall Street, Suite V Canton, MA 02021 |
Questions and requests for assistance may be directed to the Information Agent at its address and telephone
numbers set forth below. Requests for copies of the Offer to Purchase and the related Letter of Transmittal and Notice of Guaranteed Delivery may be directed to the Information Agent. Such copies will be furnished promptly at Purchaser’s
expense. Stockholders may also contact brokers, dealers, commercial banks or trust companies for assistance concerning the Offer. Purchaser will not pay any fees or commissions to any broker or dealer or any other person (other than the Information
Agent or the Depositary) for soliciting tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
MacKenzie Partners, Inc.
105 Madison Avenue
New
York, New York 10016
212-929-5500 (Call Collect) or
CALL TOLL FREE 800-322-2885
Email: tenderoffer@mackenziepartners.com
Exhibit (a)(1)(B)
LETTER OF TRANSMITTAL
To Tender Shares of Common Stock
of
DURATA THERAPEUTICS,
INC.
a Delaware corporation
at
$23.00 per share plus
one non-transferable contractual contingent value right for each share, which represents the right to receive contingent payments of up to $5.00 in cash in the aggregate per share, if any, upon the achievement of certain milestones
Pursuant to the Offer to Purchase
dated October 17, 2014
by
DELAWARE MERGER SUB,
INC.
a wholly owned subsidiary of
ACTAVIS W.C. HOLDING INC.
and an indirect wholly owned subsidiary of
ACTAVIS plc
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT THE END OF THE DAY, 12:00 MIDNIGHT, NEW YORK CITY TIME, ON NOVEMBER 14, 2014,
UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED (SUCH DATE AND TIME, AS IT MAY BE EXTENDED, THE “EXPIRATION DATE”).
The Depositary for the Offer is:
|
|
|
| If delivering by mail: |
|
By overnight delivery: |
|
|
| Computershare Trust Company, N.A.
c/o Voluntary Corp Actions P.O. Box
43011 Providence, RI 02940-3011 |
|
Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions 250
Royall Street, Suite V Canton, MA 02021 |
Delivery of this Letter of Transmittal to an address other than as set forth above will not constitute a
valid delivery to the Depositary (as defined below). You must sign this Letter of Transmittal in the appropriate space provided therefor below, with signature guaranteed, if required, and complete the IRS Form W-9 included in this Letter of
Transmittal, if required. The instructions set forth in this Letter of Transmittal should be read carefully before you tender any of your Shares (as defined below) into the Offer (as defined below).
|
|
|
|
|
|
|
| DESCRIPTION OF SHARES TENDERED |
| Name(s) and
Address(es) of Registered Holder(s)
(Please fill in, if blank, exactly as name(s) appear(s) on certificate(s))
(Attach additional signed list if necessary) |
|
Shares Tendered |
| |
|
Certificate
Number(s)(*) |
|
Total Number
of Shares Represented
by
Certificate(s)(**) |
|
Total
Number of Shares
Tendered(**) |
| |
|
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|
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| |
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|
|
| |
|
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| |
|
Total Shares |
|
|
|
(*) Certificate numbers are not required if tender is being made by book-entry transfer.
(**) Unless a lower number of Shares to be tendered is otherwise indicated, it will be assumed that all
Shares described above are being tendered. See Instruction 4. |
The Offer is not being made to (and no tenders will be accepted from or on behalf of) holders of Shares in any
jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the securities, “blue sky” or other laws of such jurisdiction.
This Letter of Transmittal is to be used by stockholders of Durata Therapeutics, Inc. (“Durata”), if certificates (the “Share
Certificates”) for shares of common stock, par value $0.01 per share, of Durata (the “Shares”) are to be forwarded herewith or, unless an Agent’s Message (as defined in Section 2 of the Offer to Purchase) is utilized, if
delivery of Shares is to be made by book-entry transfer to an account maintained by the Depositary at The Depository Trust Company (“DTC”) (as described in Section 2 of the Offer to Purchase and pursuant to the procedures set forth in
Section 3 thereof).
Stockholders whose Share Certificates are not immediately available, or who cannot complete the procedure
for book-entry transfer on a timely basis, or who cannot deliver all other required documents to the Depositary prior to the Expiration Date, must tender their Shares according to the guaranteed delivery procedure set forth in Section 3 of the
Offer to Purchase in order to participate in the Offer. Shares tendered by the Notice of Guaranteed Delivery (as defined below) will be excluded from the calculation of the Minimum Condition (as defined in the Offer to Purchase), unless such Shares
and other required documents are received by the Depositary by the Expiration Date. See Instruction 2. Delivery of documents to DTC does not constitute delivery to the Depositary.
Additional Information if Shares Have Been Lost, Destroyed or Stolen, Are Being Delivered By Book-Entry Transfer, or Are Being Delivered Pursuant to a
Previous Notice of Guaranteed Delivery
If Share Certificates you are tendering with this Letter of Transmittal have been lost,
stolen, destroyed or mutilated, you should contact Computershare Trust Company, N.A., as transfer agent (the “Transfer Agent”), toll-free at (800) 546-5141, regarding the requirements for replacement. You may be required to post a
bond to secure against the risk that the Share Certificates may be subsequently recirculated. You are urged to contact the Transfer Agent immediately in order to receive further instructions, for a determination of whether you will need to post a
bond and to permit timely processing of this documentation. See Instruction 11.
| ¨ |
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED HEREWITH. |
| ¨ |
CHECK HERE IF YOU HAVE LOST YOUR SHARE CERTIFICATE(S) AND REQUIRE ASSISTANCE IN OBTAINING REPLACEMENT CERTIFICATE(S). BY CHECKING THIS BOX, YOU
UNDERSTAND THAT YOU MUST CONTACT AMERICAN STOCK TRANSFER & TRUST |
2
| |
COMPANY, LLC TO OBTAIN INSTRUCTIONS FOR REPLACING LOST CERTIFICATES. SEE INSTRUCTION 11. |
| ¨ |
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH DTC AND COMPLETE THE FOLLOWING (NOTE THAT ONLY FINANCIAL INSTITUTIONS THAT ARE PARTICIPANTS
IN THE SYSTEM OF DTC MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER): |
|
|
|
| Name of Tendering Institution: |
|
|
|
|
|
|
|
| DTC Account Number: |
|
|
|
|
| Transaction Code Number: |
|
|
| ¨ |
CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING: |
|
|
|
| Name(s) of Tendering Stockholder(s): |
|
|
|
|
|
|
|
| Window Ticket Number (if any): |
|
|
|
|
|
|
|
| Date of Execution of Notice of Guaranteed Delivery: |
|
|
|
|
|
|
|
| Name of Eligible Institution that Guaranteed Delivery: |
|
|
3
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby
tenders to Delaware Merger Sub, Inc., a Delaware corporation (“Purchaser”), the above described shares of common stock, par value $0.01 per share (the “Shares”), of Durata Therapeutics, Inc., a Delaware corporation
(“Durata”), pursuant to Purchaser’s offer to purchase all of the outstanding Shares, at a purchase price of $23.00 per Share, net to the seller in cash, without interest and less any applicable withholding taxes, plus one
non-transferable contractual contingent value right per Share (each, a “CVR”), which represents the right to receive contingent payments of up to $5.00 in cash in the aggregate, if any, if certain specified milestones are achieved, upon
the terms and subject to the conditions set forth in the Offer to Purchase, dated October 17, 2014 (the “Offer to Purchase”), and in this Letter of Transmittal (the “Letter of Transmittal” which, together with the Offer to
Purchase, as each may be amended and supplemented from time to time, collectively constitute the “Offer”), receipt of which is hereby acknowledged.
Upon the terms and subject to the conditions of the Offer (and if the Offer is extended or amended, the terms of any such extension or
amendment), and effective upon acceptance for payment of the Shares validly tendered herewith and not properly withdrawn prior to the Expiration Date (as defined in the Introduction to the Offer to Purchase) in accordance with the terms of the
Offer, the undersigned hereby sells, assigns and transfers to or upon the order of Purchaser all right, title and interest in and to all of the Shares that are being tendered hereby (and any and all dividends, distributions, rights, other Shares or
other securities issued or issuable in respect thereof on or after the date hereof (collectively, “Distributions”)) and irrevocably constitutes and appoints Computershare Trust Company, N.A. (the “Depositary”) the true and lawful
agent and attorney-in-fact of the undersigned with respect to such Shares (and any and all Distributions), with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest in the Shares
tendered by this Letter of Transmittal), to (i) deliver Share Certificates for such Shares (and any and all Distributions) or transfer ownership of such Shares (and any and all Distributions) on the account books maintained by DTC, together, in
any such case, with all accompanying evidences of transfer and authenticity, to or upon the order of Purchaser, (ii) present such Shares (and any and all Distributions) for transfer on the books of Durata and (iii) receive all benefits and
otherwise exercise all rights of beneficial ownership of such Shares (and any and all Distributions), all in accordance with the terms and subject to the conditions of the Offer.
By executing this Letter of Transmittal (or taking action resulting in the delivery of an Agent’s Message), the undersigned hereby
irrevocably appoints each of the designees of Purchaser the attorneys-in-fact and proxies of the undersigned, each with full power of substitution, (i) to vote at any annual or special meeting of Durata’s stockholders or any adjournment or
postponement thereof or otherwise in such manner as each such attorney-in-fact and proxy or its, his or her substitute shall in its, his or her sole discretion deem proper with respect to, (ii) to execute any written consent concerning any
matter as each such attorney-in-fact and proxy or its, his or her substitute shall in its, his or her sole discretion deem proper with respect to and (iii) to otherwise act as each such attorney-in-fact and proxy or its, his or her substitute
shall in its, his or her sole discretion deem proper with respect to, all of the Shares (and any and all Distributions) tendered hereby and accepted for payment by Purchaser. This appointment will be effective if and when, and only to the extent
that, Purchaser accepts such Shares for payment pursuant to the Offer. This power of attorney and proxy are irrevocable and are granted in consideration of the acceptance for payment of such Shares in accordance with the terms of the Offer. Such
acceptance for payment shall, without further action, revoke any prior powers of attorney and proxies granted by the undersigned at any time with respect to such Shares (and any and all Distributions), and no subsequent powers of attorney, proxies,
consents or revocations may be given by the undersigned with respect thereto (and, if given, will not be deemed effective). Purchaser reserves the right to require that, in order for the Shares to be deemed validly tendered, immediately upon
Purchaser’s acceptance for payment of such Shares, Purchaser or its designees must be able to exercise full voting, consent and other rights with respect to such Shares (and any and all Distributions), including voting at any meeting of
Durata’s stockholders.
4
The undersigned hereby represents and warrants that the undersigned has full power and authority
to tender, sell, assign and transfer any and all of the Shares tendered hereby (and any and all Distributions) and that, when the same are accepted for payment by Purchaser, Purchaser will acquire good, marketable and unencumbered title to such
Shares (and such Distributions), free and clear of all liens, restrictions, charges and encumbrances and the same will not be subject to any adverse claims. The undersigned hereby represents and warrants that the undersigned is the registered owner
of the Shares, or the Share Certificate(s) have been endorsed to the undersigned in blank, or the undersigned is a participant in DTC whose name appears on a security position listing as the owner of the Shares. The undersigned will, upon request,
execute and deliver any additional documents deemed by the Depositary or Purchaser to be necessary or desirable to complete the sale, assignment and transfer of the Shares tendered hereby (and any and all Distributions). In addition, the undersigned
shall remit and transfer promptly to the Depositary for the account of Purchaser all Distributions in respect of any and all of the Shares tendered hereby, accompanied by appropriate documentation of transfer, and, pending such remittance and
transfer or appropriate assurance thereof, Purchaser shall be entitled to all rights and privileges as owner of each such Distribution and may withhold the entire purchase price of the Shares tendered hereby or deduct from such purchase price the
amount or value of such Distribution as determined by Purchaser in its sole discretion.
All authority herein conferred or agreed to be
conferred shall not be affected by, and shall survive the death or incapacity of the undersigned, and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, personal representatives, trustees in
bankruptcy, successors and assigns of the undersigned. Except as stated in the Offer to Purchase, this tender is irrevocable.
The
undersigned hereby acknowledges that delivery of any Share Certificate shall be effected, and risk of loss and title to such Share Certificate shall pass, only upon the proper delivery of such Share Certificate to the Depositary.
The undersigned understands that the valid tender of Shares pursuant to any of the procedures described in the Offer to Purchase and in the
Instructions hereto will constitute the undersigned’s acceptance of the terms and conditions of the Offer. Purchaser’s acceptance of such Shares for payment will constitute a binding agreement between the undersigned and Purchaser upon the
terms and subject to the conditions of the Offer (and if the Offer is extended or amended, the terms and conditions of such extension or amendment). The undersigned recognizes that under certain circumstances set forth in the Offer, Purchaser may
not be required to accept for exchange any Shares tendered hereby.
The undersigned understands that the CVRs will not be transferable
except (a) upon death by will or intestacy or by instrument to an inter vivos or testamentary trust in which the CVRs are to be passed to beneficiaries upon the death of the trustee; (b) pursuant to a court order; (c) made by
operation of law (including a consolidation or merger) or without consideration in connection with the dissolution, liquidation or termination of any corporation, limited liability company, partnership or other entity; or (d) in the case of
CVRs payable to a nominee, from a nominee to a beneficial owner (and, if applicable, through an intermediary) or from such nominee to another nominee for the same beneficial owner, in each case as allowable by the Depository Trust Company. The
undersigned further understands that the CVRs will not have any voting or dividend rights, or accrue interest and will not represent any equity or ownership interest in Actavis, Parent, Purchaser or Durata. The undersigned understands that the CVRs
will be registered in the name of the undersigned.
Unless otherwise indicated under “Special Payment Instructions,” please
issue a check for the purchase price of all Shares purchased and, if appropriate, return Share Certificates not tendered or accepted for payment in the name(s) of the registered holder(s) appearing above under “Description of Shares
Tendered.” Similarly, unless otherwise indicated under “Special Delivery Instructions,” please mail the check for the purchase price of all Shares purchased and, if appropriate, return any Share Certificates not tendered or not
accepted for payment (and any accompanying documents, as appropriate) to the address(es) of the registered holder(s) appearing above under “Description of Shares Tendered.” In the event that the boxes entitled “Special Payment
Instructions” and
5
“Special Delivery Instructions” are both completed, please issue the check for the purchase price of all Shares purchased and, if appropriate, return any Share Certificates not tendered
or not accepted for payment (and any accompanying documents, as appropriate) in the name(s) of, and deliver such check and, if appropriate, return any Share Certificates (and any accompanying documents, as appropriate) to, the person(s) so
indicated. Unless otherwise indicated herein in the box entitled “Special Payment Instructions,” please credit any Shares tendered herewith by book-entry transfer that are not accepted for payment by crediting the account at DTC designated
above. The undersigned recognizes that Purchaser has no obligation, pursuant to the “Special Payment Instructions,” to transfer any Shares from the name of the registered holder thereof if Purchaser does not accept for payment any of the
Shares so tendered. Subject to the terms of the CVR Agreement (as defined in Section 11 of the Offer to Purchase), please make all payments regarding the CVRs as directed herein for payment of the Cash Consideration and enter in the CVR
register to be maintained by the rights agent pursuant to the CVR Agreement the name(s) and address(es) appearing on the cover page of this Letter of Transmittal for each registered holder. The undersigned recognizes that Purchaser has no
obligation, pursuant to the Special Payment Instructions, to transfer any Shares from the name(s) of the registered holder(s) thereof if Purchaser does not accept for payment any of the Shares so tendered.
6
|
|
|
|
|
| SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 5, 6 and 7) |
| To be completed ONLY if the check for the purchase price
of Shares accepted for payment and/or Share Certificates not tendered or not accepted for payment are to be issued in the name of someone other than the undersigned.
Issue check and/or certificates to: |
| Name: |
|
|
|
|
|
|
(Please Print) |
|
|
| Address: |
|
|
|
| |
| (Include Zip Code)
(Taxpayer Identification or Social Security No.)
(Also Complete, as appropriate, Form W-9 Included Below) |
|
|
|
|
|
| SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 5, 6 and 7) |
| To be completed ONLY if the check for the purchase price
of Shares accepted for payment and/or Share Certificates evidencing Shares not tendered or not accepted are to be mailed to someone other than the undersigned or to the undersigned at an address other than that shown above.
Mail check and/or Share Certificates to:
|
|
|
|
| Name: |
|
|
|
|
|
|
(Please Print) |
|
|
| Address: |
|
|
|
| |
| (Include Zip Code)
|
7
|
| IMPORTANT
STOCKHOLDER: SIGN BELOW
(U.S.
Holders: Please complete and return the Form W-9 included below)
(Non-U.S. Holders: Please obtain, complete and return appropriate IRS Form W-8)
(Signature(s) of Holder(s) of Shares) |
|
|
|
|
|
| Capacity (full title) (See Instruction 5): |
|
|
|
|
|
|
|
| Address: |
|
|
|
| |
| (Include Zip Code) |
|
|
|
|
|
| Area Code and Telephone No.: |
|
|
|
|
|
|
|
| Tax Identification or Social Security No. (See Form W-9 included below): |
|
|
(Must be signed by registered holder(s) exactly as name(s) appear(s) on stock certificate(s)
or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer of a
corporation or other person acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5.)
8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. No signature guarantee is required on this Letter of Transmittal (a) if this Letter of
Transmittal is signed by the registered holder(s) (which term, for purposes of this Instruction, includes any participant in DTC’s systems whose name appears on a security position listing as the owner of the Shares) of Shares tendered
herewith, unless such registered holder has completed either the box entitled “Special Payment Instructions” or the box entitled “Special Delivery Instructions” on this Letter of Transmittal or (b) if such Shares are
tendered for the account of a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a member in good standing of the Securities Transfer Agents Medallion Program or any other
“eligible guarantor institution,” as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (each, an “Eligible Institution”). In all other cases, all signatures on this Letter of Transmittal
must be guaranteed by an Eligible Institution. See Instruction 5.
2. Requirements of Tender. No alternative,
conditional or contingent tenders will be accepted. In order for Shares to be validly tendered pursuant to the Offer, one of the following procedures must be followed:
For Shares held as physical certificates, the Share Certificates representing tendered Shares, a properly completed and duly executed Letter of
Transmittal, together with any required signature guarantees, and any other documents required by this Letter of Transmittal, must be received by the Depositary at one of its addresses set forth on the front page of this Letter of Transmittal before
the Expiration Date (unless the tender is made during a subsequent offering period, if one is provided, in which case the Share Certificates representing Shares, this Letter of Transmittal and other documents must be received before the expiration
of the subsequent offering period).
For Shares held in book-entry form, either a properly completed and duly executed Letter of
Transmittal, together with any required signature guarantees, or an Agent’s Message in lieu of this Letter of Transmittal, and any other required documents, must be received by the Depositary at one of its addresses set forth on the front page
of this Letter of Transmittal, and such Shares must be delivered according to the book-entry transfer procedures (as set forth in Section 3 of the Offer to Purchase) and a timely confirmation of a book-entry transfer of Shares into the
Depositary’s account at DTC (a “Book-Entry Confirmation”) must be received by the Depositary, in each case before the Expiration Date (unless the tender is made during a subsequent offering period, if one is provided, in which case
this Letter of Transmittal or an Agent’s Message in lieu of this Letter of Transmittal, and other documents must be received before the expiration of the subsequent offering period).
Stockholders whose Share Certificates are not immediately available, or who cannot complete the procedure for delivery by book-entry transfer
prior to the Expiration Date or who cannot deliver all other required documents to the Depositary prior to the Expiration Date, may tender their Shares by properly completing and duly executing a notice of guaranteed delivery (a “Notice of
Guaranteed Delivery”) pursuant to the guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase. Pursuant to such procedure: (i) such tender must be made by or through an Eligible Institution, (ii) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in the form made available by Purchaser, must be received by the Depositary prior to the Expiration Date and (iii) Share Certificates (or a Book-Entry Confirmation)
evidencing all tendered Shares, in proper form for transfer, in each case together with this Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees (or, in the case of book-entry transfer of
Shares, either this Letter of Transmittal or an Agent’s Message in lieu of this Letter of Transmittal), and any other documents required by this Letter of Transmittal, must be received by the Depositary within three NASDAQ Stock Market trading
days after the date of execution of such Notice of Guaranteed Delivery. A Notice of Guaranteed Delivery may be delivered by overnight courier or mailed to the Depositary and must include a guarantee by an Eligible Institution in the form set forth
in the form of Notice of Guaranteed Delivery made available by Purchaser. In the case of Shares held through DTC, the Notice of Guaranteed Delivery must be delivered to the Depositary by a participant by means of the confirmation system of DTC.
Shares tendered by the Notice of Guaranteed Delivery will be excluded from the
9
calculation of the Minimum Condition (as such term is defined in the Offer to Purchase), unless such Shares and other required documents are received by the Depositary by the Expiration Date.
The term “Agent’s Message” means a message transmitted by DTC to, and received by, the Depositary and forming part of a
Book-Entry Confirmation that states that DTC has received an express acknowledgment from the participant in DTC tendering the Shares that are the subject of such Book-Entry Confirmation that such participant has received and agrees to be bound by
the terms of this Letter of Transmittal and that Purchaser may enforce such agreement against the participant.
The method of delivery
of Shares, this Letter of Transmittal and all other required documents, including delivery through DTC, is at the election and risk of the tendering stockholder. Shares will be deemed delivered (and the risk of loss of Share Certificates will pass)
only when actually received by the Depositary (including, in the case of a book-entry transfer, by Book-Entry Confirmation). If delivery is by mail, then registered mail with return receipt requested, properly insured, is recommended. In all cases,
sufficient time should be allowed to ensure timely delivery.
No fractional Shares will be purchased. By executing this Letter of
Transmittal, the tendering stockholder waives any right to receive any notice of the acceptance for payment of Shares.
3.
Inadequate Space. If the space provided herein is inadequate, Share Certificate numbers, the number of Shares represented by such Share Certificates and/or the number of Shares tendered should be listed on a separate signed schedule attached
hereto.
4. Partial Tenders (Not Applicable to Stockholders who Tender by Book-Entry Transfer). If fewer than all the
Shares represented by any Share Certificate delivered to the Depositary are to be tendered, fill in the number of Shares which are to be tendered in the box entitled “Total Number of Shares Tendered”. In such case, a new certificate for
the remainder of the Shares represented by the old certificate will be sent to the person(s) signing this Letter of Transmittal, unless otherwise provided in the appropriate box on this Letter of Transmittal, as promptly as practicable following the
expiration or termination of the Offer. All Shares represented by Share Certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated.
5. Signatures on Letter of Transmittal; Stock Powers and Endorsements.
(a) Exact Signatures. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, the
signature(s) must correspond with the name(s) as written on the face of the Share Certificates without alteration, enlargement or any change whatsoever.
(b) Joint Holders. If any of the Shares tendered hereby are held of record by two or more persons, all such persons must sign
this Letter of Transmittal.
(c) Different Names on Certificates. If any of the Shares tendered hereby are registered
in different names on different Share Certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of Share Certificates.
(d) Endorsements. If this Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, no
endorsements of Share Certificates or separate stock powers are required unless payment of the purchase price is to be made, or Shares not tendered or not purchased are to be returned, in the name of any person other than the registered holder(s).
Signatures on any such Share Certificates or stock powers must be guaranteed by an Eligible Institution.
(e) Stock
Powers. If this Letter of Transmittal is signed by a person other than the registered holder(s) of the Shares tendered hereby, Share Certificates must be endorsed or accompanied by appropriate stock powers, in
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either case, signed exactly as the name(s) of the registered holder(s) appear(s) on the Share Certificates for such Shares. Signature(s) on any such Share Certificates or stock powers must be
guaranteed by an Eligible Institution. See Instruction 1.
(f) Evidence of Fiduciary or Representative Capacity. If this
Letter of Transmittal or any Share Certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other legal entity or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence satisfactory to the Depositary of the authority of such person so to act must be submitted. Proper evidence of authority includes a power of attorney, a letter of
testamentary or a letter of appointment.
6. Stock Transfer Taxes. Except as otherwise provided in this Instruction 6,
Purchaser or any successor entity thereto will pay all stock transfer taxes with respect to the transfer and sale of any Shares to it or its order pursuant to the Offer (for the avoidance of doubt, transfer taxes do not include United States federal
income taxes or backup withholding taxes). If, however, payment of the purchase price is to be made to, or if Share Certificate(s) for Shares not tendered or not accepted for payment are to be registered in the name of, any person(s) other than the
registered holder(s), or if tendered Share Certificate(s) are registered in the name of any person(s) other than the person(s) signing this Letter of Transmittal, the amount of any stock transfer taxes or other taxes required by reason of the
payment to a person other than the registered holder of such Shares (whether imposed on the registered holder(s) or such other person(s)) payable on account of the transfer to such other person(s) will be deducted from the purchase price of such
Shares purchased unless evidence satisfactory to Purchaser of the payment of such taxes, or exemption therefrom, is submitted.
Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the Share Certificate(s)
evidencing the Shares tendered hereby.
7. Special Payment and Delivery Instructions. If a check is to be issued for the
purchase price of any Shares tendered by this Letter of Transmittal in the name of, and, if appropriate, Share Certificates for Shares not tendered or not accepted for payment are to be issued or returned to, any person(s) other than the signer of
this Letter of Transmittal or if a check and, if appropriate, such Share Certificates are to be returned to any person(s) other than the person(s) signing this Letter of Transmittal or to an address other than that shown in this Letter of
Transmittal, the appropriate boxes on this Letter of Transmittal must be completed.
8. Form W-9. To avoid backup
withholding, a tendering stockholder that is a United States person (as defined for United States federal income tax purposes) is required to provide the Depositary with a correct Taxpayer Identification Number (“TIN”) on IRS Form W-9,
which is included herein, and to certify, under penalties of perjury, that such number is correct and that such stockholder is not subject to backup withholding of federal income tax, and that such stockholder is a United States person (as defined
for United States federal income tax purposes). If the stockholder is an individual, the stockholder’s TIN is generally such stockholder’s Social Security number. If the tendering stockholder has been notified by the United States Internal
Revenue Service (“IRS”) that such stockholder is subject to backup withholding, such stockholder must cross out item (2) of the Certification section of the IRS Form W-9, unless such stockholder has since been notified by the IRS that
such stockholder is no longer subject to backup withholding. Failure to provide the information on the IRS Form W-9 may subject the tendering stockholder to backup withholding on the payment of the purchase price of all Shares purchased from such
stockholder. If the tendering stockholder has not been issued a TIN and has applied for one or intends to apply for one in the near future, such stockholder should write “Applied For” in the space for the TIN on the IRS Form W-9, sign and
date the IRS Form W-9 and sign and date the Certificate of Awaiting Taxpayer Identification Number under “Important Tax Information” below. If you write “Applied For” in the space for the TIN and the Depositary is not provided
with a TIN by the time of payment, the Depositary will withhold a portion of all payments of the purchase price to such stockholder until a TIN is provided to the Depositary. Certain stockholders (including, among others, corporations) may not be
subject to backup withholding. Foreign stockholders that are not United States persons (as defined for United States federal income
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tax purposes) should submit an appropriate and properly completed applicable IRS Form W-8, a copy of which may be obtained from the Depositary, in order to avoid backup withholding. Such
stockholders should consult a tax advisor to determine which Form W-8 is appropriate. Exempt stockholders, other than foreign stockholders, should furnish their TIN, check the appropriate box on the Form W-9 and sign, date and return the Form W-9 to
the Depositary in order to avoid erroneous backup withholding. Backup withholding is not an additional tax. Rather, the federal income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If backup
withholding results in an overpayment of taxes, a refund may be obtained from the IRS if eligibility is established and appropriate procedure is followed. See the instructions enclosed with the IRS Form W-9 included in this Letter of Transmittal for
more instructions.
9. Irregularities. All questions as to the validity, form, eligibility (including time of
receipt) and acceptance for payment of any tender of Shares will be determined by Purchaser, in its sole discretion, which determination shall be final and binding on all parties. However, stockholders may challenge Purchaser’s determinations
in a court of competent jurisdiction. Purchaser reserves the absolute right to reject any and all tenders determined by it not to be in proper form or the acceptance for payment of which may, in the opinion of its counsel, be unlawful. Purchaser
also reserves the absolute right to waive any defect or irregularity in the tender of any Shares of any particular stockholder, whether or not similar defects or irregularities are waived in the case of other stockholders. No tender of Shares will
be deemed to have been validly made until all defects and irregularities have been waived or cured within such time as Purchaser shall determine. None of Purchaser, the Depositary, the Information Agent or any other person will be under any duty to
give notice of any defects or irregularities in tenders or incur any liability for failure to give any such notice. Purchaser’s interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the instructions
thereto) will be final and binding.
10. Questions and Requests for Additional Copies. The Information Agent may be
contacted at the address and telephone number set forth on the last page of this Letter of Transmittal for questions and/or requests for additional copies of the Offer to Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and
other tender offer materials. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance. Such copies will be furnished promptly at Purchaser’s expense.
11. Lost, Stolen Destroyed or Mutilated Certificates. If any Share Certificate has been lost, stolen, destroyed or mutilated,
the stockholder should promptly notify the Transfer Agent at (800) 546-5141. The stockholder will then be instructed as to the steps that must be taken in order to replace such Share Certificates. You may be required to post a bond to secure
against the risk that the Share Certificates(s) may be subsequently recirculated. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, destroyed or stolen certificates have been followed. You
are urged to contact the Transfer Agent immediately in order to receive further instructions and for a determination of whether you will need to post a bond and to permit timely processing of this documentation. This Letter of Transmittal and
related documents cannot be processed until the procedures for replacing lost, destroyed, mutilated or stolen Share Certificates have been followed.
Share Certificates evidencing tendered Shares, or a Book-Entry Confirmation into the Depositary’s account at DTC, as well as this
Letter of Transmittal, properly completed and duly executed, with any required signature guarantees, or an Agent’s Message (if utilized in lieu of this Letter of Transmittal in connection with a book-entry transfer), and any other documents
required by this Letter of Transmittal, must be received before the Expiration Date, or the tendering stockholder must comply with the procedures for guaranteed delivery.
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| Form W-9 (Rev. August 2013)
Department of the Treasury Internal Revenue Service |
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Request for Taxpayer
Identification Number and Certification |
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Give Form to the
requester. Do not
send to the IRS. |
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| Print or type
See Specific Instructions
on page 2. |
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Name (as shown on your income tax return)
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Business name/disregarded entity name, if different from above
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Check appropriate box for federal tax classification: |
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Exemptions (see instructions): |
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Individual/sole proprietor |
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C Corporation |
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S Corporation |
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Partnership |
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Trust/estate |
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Exempt payee code (if any) |
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Limited liability company. Enter the tax classification (C=C corporation, S=S corporation,
P=partnership) u
Other (see instructions) u |
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Exemption from FATCA reporting code (if
any)
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Address (number, street, and apt. or suite no.) |
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Requester’s name and address (optional) |
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City, state, and ZIP code
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List account
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Taxpayer Identification Number (TIN) |
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| Enter your TIN in the appropriate box. The TIN provided must match the name given on the “Name” line to avoid backup
withholding. For individuals, this is your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is your employer identification number
(EIN). If you do not have a number, see How to get a TIN on page 3.
Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose number to enter. |
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Social security number |
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Employer identification number |
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Under penalties of perjury, I certify that:
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The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and |
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I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and |
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I am a U.S. citizen or other U.S. person (defined below), and |
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The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. |
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding
because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to
an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions on page 3.
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Sign
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General Instructions
Section references are to the Internal Revenue Code unless otherwise noted.
Future developments. The IRS has created a page on IRS.gov for information about Form W-9, at www.irs.gov/w9. Information about any
future developments affecting Form W-9 (such as legislation enacted after we release it) will be posted on that page.
Purpose of Form
A person who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) to report, for example, income
paid to you, payments made to you in settlement of payment card and third party network transactions, real estate transactions, mortgage interest you paid, acquisition or abandonment of secured property, cancellation of debt, or contributions you
made to an IRA.
Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN to the person
requesting it (the requester) and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are waiting for a number
to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your
allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners’ share of effectively connected income, and
4. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct.
Note. If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN,
you must use the requester’s form if it is substantially similar to this Form W-9.
Definition of a U.S. person. For federal tax purposes, you
are considered a U.S. person if you are:
— An individual who is a U.S. citizen or U.S. resident alien,
— A partnership, corporation, company, or association created or organized in the United States or
under the laws of the United States,
— An estate (other than a foreign estate), or
— A domestic trust (as defined in Regulations section 301.7701-7).
Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax under
section 1446 on any foreign partners’ share of effectively connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under section 1446 require a partnership to presume that a
partner is a foreign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your
U.S. status and avoid section 1446 withholding on your share of partnership income.
In the cases below, the following person must give
Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States:
— In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not
the entity,
— In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the
U.S. grantor or other U.S. owner of the grantor trust and not the trust, and
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Cat. No. 10231X |
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Form W-9 (Rev.
8-2013) |
| Form W-9 (Rev. 8-2013) |
Page 2 |
— In the case of a U.S. trust (other than a grantor trust),
the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust.
Foreign person. If you are a foreign person
or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person, do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities).
Nonresident alien who becomes a resident alien. Generally, only a
nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a “saving clause.” Exceptions specified in the saving clause
may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes.
If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S.
tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items:
1. The treaty country.
Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.
2. The treaty article addressing
the income.
3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions.
4. The type and amount of income that qualifies for the exemption from tax.
5. Sufficient facts to justify the exemption from tax under the terms of the treaty article.
Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship
income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the
first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception
(under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support
that exemption.
If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233
What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to
the IRS a percentage of such payments. This is called “backup withholding.” Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties,
nonemployee pay, payments made in settlement of payment card and third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding.
You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper
certifications, and report all your taxable interest and dividends on your tax return.
Payments you receive will be subject to backup withholding if:
1. You do not furnish your TIN to the requester,
2. You do not certify your TIN when required (see the Part II instructions on page 3 for details),
3. The IRS tells the requester that you furnished an incorrect TIN,
4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return
(for reportable interest and dividends only), or
5. You do not certify to the requester that you are not subject to backup withholding
under 4 above (for reportable interest and dividend accounts opened after 1983 only).
Certain payees and payments are exempt from backup
withholding. See Exempt payee code on page 3 and the separate Instructions for the Requester of Form W-9 for more information.
Also see Special rules for partnerships on page 1.
What is FATCA reporting? The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial
institution to report all United States account holders that are specified United States persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code on page
3 and the Instructions for the Requester of Form W-9 for more information.
Updating Your Information
You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving
reportable payments in the future from this person.
For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new
Form W-9 if the name or TIN changes for the account, for example, if the grantor of a grantor trust dies.
Penalties
Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
Civil penalty
for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500
penalty.
Criminal penalty for falsifying information. Willfully falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or imprisonment.
Misuse of TINs. If the requester discloses or uses TINs in
violation of federal law, the requester may be subject to civil and criminal penalties.
Specific Instructions
Name
If you are an individual, you must generally enter
the name shown on your income tax return. However, if you have changed your last name, for instance, due to marriage without informing the Social Security Administration of the name change, enter your first name, the last name shown on your social
security card, and your new last name.
If the account is in joint names, list first, and then circle, the name of the person or entity
whose number you entered in Part I of the form.
Sole proprietor. Enter your individual name as shown on your income tax return on the
“Name” line. You may enter your business, trade, or “doing business as (DBA)” name on the “Business name/disregarded entity name” line.
Partnership, C Corporation, or S Corporation. Enter the entity’s name on the “Name” line and any
business, trade, or “doing business as (DBA) name” on the “Business name/disregarded entity name” line.
Disregarded entity.
For U.S. federal tax purposes, an entity that is disregarded as an entity separate from its owner is treated as a “disregarded entity.” See Regulation section 301.7701-2(c)(2)(iii). Enter the owner’s name on the “Name”
line. The name of the entity entered on the “Name” line should never be a disregarded entity. The name on the “Name” line must be the name shown on the income tax return on which the income should be reported. For example, if a
foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owner’s name is required to be provided on the “Name” line. If the direct owner of the entity is also
a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity’s name on the “Business name/disregarded entity name” line. If the owner of the disregarded entity is a foreign
person, the owner must complete an appropriate Form W-8 instead of a Form W-9. This is the case even if the foreign person has a U.S. TIN.
Note.
Check the appropriate box for the U.S. federal tax classification of the person whose name is entered on the “Name” line (Individual/sole proprietor, Partnership, C Corporation, S Corporation, Trust/estate).
Limited Liability Company (LLC). If the person identified on the “Name” line is an LLC, check
the “Limited liability company” box only and enter the appropriate code for the U.S. federal tax classification in the space provided. If you are an LLC that is treated as a partnership for U.S. federal tax purposes, enter “P”
for partnership. If you are an LLC that has filed a Form 8832 or a Form 2553 to be taxed as a corporation, enter “C” for C corporation or “S” for S corporation, as appropriate. If you are an LLC that is disregarded as an entity
separate from its owner under Regulation section 301.7701-3 (except for employment and excise tax), do not check the LLC box unless the owner of the LLC (required to be identified on the “Name” line) is another LLC that is not disregarded
for U.S. federal tax purposes. If the LLC is disregarded as an entity separate from its owner, enter the appropriate tax classification of the owner identified on the “Name” line.
Other entities. Enter your business name as shown on required U.S. federal tax documents on the “Name” line. This name should match the
name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on the “Business name/disregarded entity name” line.
Exemptions
If you are exempt from backup withholding
and/or FATCA reporting, enter in the Exemptions box, any code(s) that may apply to you. See Exempt payee code and Exemption from FATCA reporting
code on page 3.
| Form W-9 (Rev. 8-2013) |
Page 3 |
Exempt payee code. Generally, individuals (including sole proprietors) are not exempt from backup
withholding. Corporations are exempt from backup withholding for certain payments, such as interest and dividends. Corporations are not exempt from backup withholding for payments made in settlement of payment card or third party network
transactions.
Note. If you are exempt from backup withholding, you should still complete this form to avoid possible erroneous backup
withholding.
The following codes identify payees that are exempt from backup withholding:
1—An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies
the requirements of section 401(f)(2)
2—The United States or any of its agencies or instrumentalities
3—A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities
4—A foreign government or any of its political subdivisions, agencies, or instrumentalities
5—A corporation
6—A
dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States
7—A futures commission merchant registered with the Commodity Futures Trading Commission
8—A real estate investment trust
9—An entity registered at all times during the tax year under the Investment Company Act of 1940
10—A common trust fund operated by a bank under section 584(a)
11—A financial institution
12—A middleman known in the investment community as a nominee or custodian
13—A trust exempt from tax under section 664 or described in section 4947
The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1
through 13.
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THEN the payment is exempt
for . . . |
| Interest and dividend payments |
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All exempt payees except for 7 |
| Broker transactions |
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Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities
acquired prior to 2012. |
| Barter exchange transactions and patronage dividends |
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Exempt payees 1 through 4 |
| Payments over $600 required to be reported and direct sales over $5,0001 |
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Generally, exempt payees 1 through 52 |
| Payments made in settlement of payment card or third party network transactions |
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Exempt payees 1 through 4 |
| 1 |
See Form 1099-MISC, Miscellaneous Income, and its instructions. |
| 2 |
However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys’ fees, gross proceeds paid to an attorney,
and payments for services paid by a federal executive agency. |
Exemption from FATCA reporting
code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions.
Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these
requirements.
A—An organization exempt from tax under section 501(a) or any individual retirement plan as defined in section
7701(a)(37)
B—The United States or any of its agencies or instrumentalities
C—A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities
D—A corporation the stock of which is regularly traded on one or more established securities markets, as described in Reg. section
1.1472-1(c)(1)(i)
E—A corporation that is a member of the same expanded affiliated group as a corporation described in Reg. section
1.1472-1(c)(1)(i)
F—A dealer in securities, commodities, or derivative financial instruments (including
notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state
G—A real estate investment trust
H—A regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment
Company Act of 1940
I—A common trust fund as defined in section 584(a)
J—A bank as defined in section 581
K—A broker
L—A trust
exempt from tax under section 664 or described in section 4947(a)(1)
M—A tax exempt trust under a section 403(b) plan or section
457(g) plan
Part I. Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. If you are a resident alien and you do not have and
are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a
TIN below.
If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN. However, the IRS
prefers that you use your SSN.
If you are a single-member LLC that is disregarded as an entity separate from its owner (see
Limited Liability Company (LLC) on page 2), enter the owner’s SSN (or EIN, if the owner has one). Do not enter the disregarded entity’s EIN. If the LLC is classified as a corporation or partnership, enter
the entity’s EIN.
Note. See the chart on page 4 for further clarification of name and TIN combinations.
How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an
SSN, get Form SS-5, Application for a Social Security Card, from your local Social Security Administration office or get this form online at www.ssa.gov. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS
Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/businesses and
clicking on Employer Identification Number (EIN) under Starting a Business. You can get Forms W-7 and SS-4 from the IRS by visiting IRS.gov or by calling 1-800-TAX-FORM (1-800-829-3676).
If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and write “Applied For” in the space for the TIN, sign
and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are
subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester.
Note. Entering “Applied For” means that you have already applied for a TIN or that you intend to apply for one soon.
Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8.
Part II. Certification
To establish to the withholding
agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if items 1, 4, or 5 below indicate otherwise.
For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person
identified on the “Name” line must sign. Exempt payees, see Exempt payee code earlier.
Signature requirements. Complete the certification as indicated in items 1 through 5 below.
1. Interest, dividend, and barter exchange accounts opened before 1984 and
broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification.
2. Interest, dividend, broker, and barter exchange accounts opened after
1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely
providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form.
3. Real
estate transactions. You must sign the certification. You may cross out item 2 of the certification.
4. Other
payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have
| Form W-9 (Rev. 8-2013) |
Page 4 |
previously given an incorrect TIN. “Other payments” include payments made in the course of the requester’s trade or business for rents, royalties, goods (other than bills for
merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third party network transactions, payments to certain fishing boat crew
members and fishermen, and gross proceeds paid to attorneys (including payments to corporations).
5. Mortgage interest
paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under
section 529), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension
distributions. You must give your correct TIN, but you do not have to sign the certification.
What Name and Number To Give the
Requester
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Give name and SSN of: |
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Individual |
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The individual |
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2. |
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Two or more individuals (joint account) |
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The actual owner of the account or, if combined funds, the first individual on the account 1 |
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3. |
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Custodian account of a minor (Uniform Gift to Minors Act) |
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The minor 2 |
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4. |
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a. The usual revocable savings trust (grantor is also trustee) |
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The grantor-trustee 1 |
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b. So-called trust account that is not a legal or valid trust under state law |
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The actual owner 1 |
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5. |
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Sole proprietorship or disregarded entity owned by an individual |
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The owner 3 |
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6. |
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Grantor trust filing under Optional Form 1099 Filing Method 1 (see Regulation section 1.671-4(b)(2)(i)(A)) |
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The grantor * |
| For this type of account: |
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Give name and EIN of: |
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Disregarded entity not owned by an individual |
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The owner |
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8. |
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A valid trust, estate, or pension trust |
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Legal entity 4 |
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9. |
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Corporation or LLC electing corporate status on Form 8832 or Form 2553 |
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The corporation |
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Association, club, religious, charitable, educational, or other tax-exempt organization |
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The organization |
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Partnership or multi-member LLC |
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The partnership |
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A broker or registered nominee |
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The broker or nominee |
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Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments |
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The public entity |
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Grantor trust filing under the Form 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulation section 1.671-4(b)(2)(i)(B)) |
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The trust |
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List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person’s number must be furnished. |
| 2 |
Circle the minor’s name and furnish the minor’s SSN. |
| 3 |
You must show your individual name and you may also enter your business or “DBA” name on the “Business name/disregarded entity” name line. You may use either your SSN or EIN (if you have one), but
the IRS encourages you to use your SSN. |
| 4 |
List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also see
Special rules for partnerships on page 1. |
| *Note. |
Grantor also must provide a Form W-9 to trustee of trust. |
Note. If no name is circled when more
than one name is listed, the number will be considered to be that of the first name listed.
Secure Your Tax Records from Identity Theft
Identity theft occurs when someone uses your personal information such as your name, social security number (SSN), or other identifying information, without
your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund.
To reduce your risk:
— Protect your SSN,
— Ensure your employer is protecting
your SSN, and
— Be careful when choosing a tax preparer.
If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number
printed on the IRS notice or letter.
If your tax records are not currently affected by identity theft but you think you are at risk due to
a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039.
For more information, see Publication 4535, Identity Theft Prevention and Victim Assistance.
Victims of identity theft who are experiencing economic harm or a system problem, or are seeking help in resolving tax problems that have not
been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059.
Protect yourself from suspicious emails or phishing schemes.
Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam
the user into surrendering private information that will be used for identity theft.
The IRS does not initiate contacts with taxpayers via
emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts.
If you receive an unsolicited email claiming to be from the IRS, forward this message to phishing@irs.gov. You may also report
misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at: spam@uce.gov or contact them at
www.ftc.gov/idtheft or 1-877- IDTHEFT (1-877-438-4338).
Visit IRS.gov to learn more about identity theft and how to reduce
your risk.
Privacy Act Notice
Section 6109 of the Internal Revenue
Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the
acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting
the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering
their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your
TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties
may also apply for providing false or fraudulent information.
The Depositary for the Offer is:
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| If delivering by mail: |
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By overnight delivery: |
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| Computershare Trust Company, N.A.
c/o Voluntary Corp Actions P.O. Box
43011 Providence, RI 02940-3011 |
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Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions 250
Royall Street, Suite V Canton, MA 02021 |
The Information Agent may be contacted at the address and telephone number listed below for questions and/or
requests for additional copies of the Offer to Purchase, this Letter of Transmittal, the notice of guaranteed delivery and other tender offer materials. You may also contact your broker, dealer, commercial bank, trust company or other nominee for
assistance. Such copies will be furnished promptly at Purchaser’s expense.
MacKenzie Partners, Inc.
105 Madison Avenue
New York, New
York 10016
212-929-5500 (Call Collect) or
CALL TOLL FREE 800-322-2885
Email:
tenderoffer@mackenziepartners.com
Exhibit (a)(1)(C)
NOTICE OF GUARANTEED DELIVERY
For Tender of Shares of Common Stock
of
DURATA THERAPEUTICS,
INC.
a Delaware corporation
at
$23.00 per share plus
one non-transferable contractual contingent value right for each share, which
represents the right to receive contingent payments of
up to $5.00 in cash in the aggregate per share, if
any, upon the achievement of certain milestones
Pursuant to the Offer to Purchase
Dated October 17, 2014
by
DELAWARE MERGER SUB,
INC.
a wholly owned subsidiary of
ACTAVIS W.C. HOLDING INC.
and an indirect wholly owned subsidiary of
ACTAVIS plc
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT THE END OF THE DAY, 12:00 MIDNIGHT, NEW YORK CITY TIME, ON NOVEMBER 14, 2014,
UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED (SUCH DATE AND TIME, AS IT MAY BE EXTENDED, THE “EXPIRATION DATE”).
This Notice of Guaranteed Delivery, or one substantially in the form hereof, must be used to accept the Offer (as defined below) if
(i) certificates representing shares of common stock, par value $0.01 per share (the “Shares”), of Durata Therapeutics, Inc., a Delaware corporation (“Durata”), are not immediately available, (ii) the procedure for
book-entry transfer cannot be completed prior to the Expiration Date or (iii) time will not permit all required documents to reach Computershare Trust Company, N.A. (the “Depositary”) prior to the Expiration Date. This Notice of
Guaranteed Delivery may be delivered by overnight courier or mailed to the Depositary. See Section 3 of the Offer to Purchase (as defined below).
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By Facsimile Transmission: |
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By Overnight Courier: |
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| Computershare Trust Company, N.A.
c/o Voluntary Corp Actions P.O. Box
43011 Providence, RI 02940-3011 |
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For Eligible Institutions Only:
(617) 360-6810
For Confirmation Only Telephone:
(781) 575-2332
This is ONLY for confirmation of a
fax; for information about the Offer
please contact MacKenzie Partners at
(800)
322-2885 |
|
Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions 250
Royall Street, Suite V Canton, MA 02021 |
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN ELIGIBLE INSTITUTION (AS DEFINED IN SECTION 3 OF THE OFFER TO PURCHASE) UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN
THE SIGNATURE BOX ON THE APPROPRIATE LETTER OF TRANSMITTAL.
The Eligible Institution that completes this Notice of Guaranteed
Delivery must communicate the guarantee to the Depositary and must deliver the Letter of Transmittal (as defined below) or an Agent’s Message (as defined in Section 2 of the Offer to Purchase) and certificates for Shares (or Book-Entry
Confirmation, as defined in Section 2 of the Offer to Purchase) to the Depositary within the time period shown herein. Failure to do so could result in a financial loss to such Eligible Institution.
2
Ladies and Gentlemen:
The undersigned hereby tenders to Delaware Merger Sub, Inc., a Delaware corporation and a wholly owned indirect subsidiary of ACATVIS plc, an
Irish public limited company, upon the terms and subject to the conditions set forth in the offer to purchase, dated October 17, 2014 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), and the related letter
of transmittal (as it may be amended or supplemented from time to time, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offer”), receipt of which is hereby acknowledged, the number of Shares of Durata
specified below, pursuant to the guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase. Shares tendered by the Notice of Guaranteed Delivery will be excluded from the calculation of the Minimum Condition (as defined in
the Offer to Purchase), unless such Shares and other required documents are received by the Depositary by the Expiration Date.
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Number of Shares and Certificate No(s) (if
available) |
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¨ Check here if Shares will be tendered by book-entry transfer. |
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Name of Tendering Institution: |
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Name(s) of Record Holder(s): |
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Area Code and Tel. No. |
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(Daytime telephone number) |
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Notice of Guaranteed Delivery |
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3
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, an Eligible Institution, hereby (i) represents that the tender of Shares effected hereby complies with
Rule 14e-4 under the U.S. Securities Exchange Act of 1934, as amended, and (ii) within three NASDAQ Stock Market trading days of the date hereof, (A) guarantees delivery to the Depositary, at one of its addresses set forth above, of
certificates representing the Shares tendered hereby, in proper form for transfer, together with a properly completed and duly executed Letter of Transmittal and any other documents required by the Letter of Transmittal or (B) guarantees a
Book-Entry Confirmation of the Shares tendered hereby into the Depositary’s account at The Depository Trust Company (pursuant to the procedures set forth in Section 3 of the Offer to Purchase), together with a properly completed and duly
executed Letter of Transmittal, or an Agent’s Message (defined in Section 2 of the Offer to Purchase) in lieu of such Letter of Transmittal, and any other documents required by the Letter of Transmittal.
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NOTE: |
DO NOT SEND CERTIFICATES REPRESENTING TENDERED SHARES WITH THIS NOTICE. CERTIFICATES REPRESENTING TENDERED SHARES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL. |
4
Exhibit (a)(1)(D)
Offer To Purchase For Cash
All Outstanding Shares of Common Stock
of
DURATA THERAPEUTICS,
INC.
a Delaware corporation
at
$23.00 per share plus
one non-transferable contractual contingent value right for each share, which
represents the right to receive contingent payments of
up to $5.00 in cash in the aggregate per share, if
any, upon the achievement of certain milestones
Pursuant to the Offer to Purchase
dated October 17, 2014
by
DELAWARE MERGER SUB,
INC.
a wholly owned subsidiary of
ACTAVIS W.C. HOLDING INC.
and an indirect wholly owned subsidiary of
ACTAVIS plc
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT THE END OF THE DAY, 12:00 MIDNIGHT, NEW YORK CITY TIME, ON NOVEMBER 14, 2014,
UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED (SUCH DATE AND TIME, AS IT MAY BE EXTENDED, THE “EXPIRATION DATE”).
October 17, 2014
To Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees:
We have been engaged by Delaware Merger Sub, Inc., a Delaware corporation (which we
refer to as “Purchaser”), a wholly owned subsidiary of Actavis W.C. Holding Inc., a Delaware corporation (which we refer to as “Parent”) and an indirect wholly owned subsidiary of ACTAVIS plc, an Irish public limited company, to
act as Information Agent in connection with Purchaser’s offer to purchase all outstanding shares of common stock, par value $0.01 per share (which we refer to as “Shares”), of Durata Therapeutics, Inc., a Delaware corporation (which
we refer to as “Durata”), at a purchase price of $23.00 per Share, net to the seller in cash, without interest and less any applicable withholding taxes (the “Cash Consideration”), plus one non-transferable contractual contingent
value right per Share (each, a “CVR”), which represents the right to receive contingent payments of up to $5.00 in cash in the aggregate, if any, if specified milestones are achieved within an agreed upon time period (the Cash
Consideration plus one CVR are referred to collectively herein as the “Offer Price”), less any applicable withholding taxes and without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated
October 17, 2014 (the “Offer to Purchase”), and the related Letter of Transmittal (what we refer to as the “Letter of Transmittal” and what, together with the Offer to Purchase, each as may be amended or supplemented from time to
time, we refer to as the “Offer”) enclosed herewith. Please furnish copies of the enclosed materials to those of your clients for whom you hold Shares registered in your name or in the name of your nominee.
The Offer is not subject to any financing condition. The conditions to the Offer are described in Section 15 of the Offer to Purchase.
For your information and for forwarding to your clients for whom you hold Shares registered in your name or in the name of your nominee, we
are enclosing the following documents:
1. The Offer to Purchase;
2. The Letter of Transmittal for your use in accepting the Offer and tendering Shares and for the information of your clients, together with
the included Internal Revenue Service Form W-9;
3. A notice of guaranteed delivery to be used to accept the Offer if Shares and all other
required documents cannot be delivered to Computershare Trust Company, N.A. (the “Depositary”) by the Expiration Date or if the procedure for book-entry transfer cannot be completed by the Expiration Date (the “Notice of Guaranteed
Delivery”);
4. A form of letter which may be sent to your clients for whose accounts you hold Shares
registered in your name or in the name of your nominee, with space provided for obtaining such clients’ instructions with regard to the Offer; and
5. A return envelope addressed to the Depositary for your use only.
We urge you to contact your clients as promptly as possible. Please note that the Offer and withdrawal rights will expire at the end of the
day, 12:00 midnight, New York City time, on November 14, 2014, unless the Offer is extended or earlier terminated.
The Offer is being
made pursuant to the Agreement and Plan of Merger, dated as of October 5, 2014 (the “Merger Agreement”), by and among Parent, Purchaser and Durata. The Merger Agreement provides, among other things, that, as soon as practicable
following the consummation of the Offer and subject to the satisfaction or waiver of the remaining conditions set forth in the Merger Agreement, Purchaser will be merged with and into Durata (the “Merger”), with Durata continuing after the
Merger as the surviving corporation and a wholly owned subsidiary of Parent.
For Shares to be properly tendered pursuant to the Offer,
(a) the share certificates or confirmation of receipt of such Shares under the procedure for book-entry transfer, together with a properly completed and duly executed Letter of Transmittal, including any required signature guarantees, or, in
the case of book-entry transfer, either such Letter of Transmittal or an Agent’s Message (as defined in Section 2 of the Offer to Purchase) in lieu of such Letter of Transmittal, and any other documents required in the Letter of
Transmittal, must be timely received by the Depositary or (b) the tendering stockholder must comply with the guaranteed delivery procedures, all in accordance with the Offer to Purchase and the Letter of Transmittal. You may gain some
additional time by making use of the Notice of Guaranteed Delivery. Shares tendered by the Notice of Guaranteed Delivery will be excluded from the calculation of the Minimum Condition (as defined in the Offer to Purchase), unless such Shares and
other required documents are received by the Depositary by the Expiration Date.
Except as set forth in the Offer to Purchase, Purchaser
will not pay any fees or commissions to any broker or dealer or other person for soliciting tenders of Shares pursuant to the Offer. Purchaser will, however, upon request, reimburse brokers, dealers, commercial banks, trust companies and other
nominees for customary mailing and handling expenses incurred by them in forwarding the offering material to their customers. Purchaser will pay all stock transfer taxes applicable to its purchase of Shares pursuant to the Offer, subject to
Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed to, and additional
copies of the enclosed materials may be obtained from, the undersigned at the address and telephone numbers set forth below.
Very truly
yours,
MacKenzie Partners, Inc.
Nothing contained herein or in the enclosed documents shall render you the agent of Purchaser, the Information Agent or the Depositary or any affiliate of
any of them or authorize you or any other person to use any document or make any statement on behalf of any of them in connection with the Offer other than the enclosed documents and the statements contained therein.
2
The Information Agent for the Offer is:
MacKenzie Partners, Inc.
105 Madison Avenue
New York, New
York 10016
212-929-5500 (Call Collect) or
CALL TOLL FREE 800-322-2885
Email:
tenderoffer@mackenziepartners.com
3
Exhibit (a)(1)(E)
Offer To Purchase For Cash
All Outstanding Shares of Common Stock
of
DURATA THERAPEUTICS,
INC.
a Delaware corporation
at
$23.00 per share plus
one non-transferable contractual contingent value right for each share, which represents the right to receive contingent payments of up to $5.00 in cash in the aggregate per share, if any, upon the achievement of certain milestones
Pursuant to the Offer to Purchase
dated October 17, 2014
by
DELAWARE MERGER SUB,
INC.
a wholly owned subsidiary of
ACTAVIS W.C. HOLDING INC.
and an indirect wholly owned subsidiary of
ACTAVIS plc
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT THE END OF THE DAY, 12:00 MIDNIGHT, NEW YORK CITY TIME, ON NOVEMBER 14,
2014, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED (SUCH DATE AND TIME, AS IT MAY BE EXTENDED, THE “EXPIRATION DATE”).
October 17, 2014
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated October 17, 2014 (what we refer to as the “Offer to Purchase”),
and the related Letter of Transmittal (what we refer to as the “Letter of Transmittal” and what, together with the Offer to Purchase, as each may be amended or supplemented from time to time, we refer to as the “Offer”) in
connection with the offer by Delaware Merger Sub, Inc., a Delaware corporation (which we refer to as “Purchaser”) and a wholly owned indirect subsidiary of Actavis plc, an Irish public limited company, to purchase all outstanding shares of
common stock, par value $0.01 per share (which we refer to as “Shares”), of Durata Therapeutics, Inc., a Delaware corporation (which we refer to as “Durata”), at a purchase price of $23.00 per Share, net to the seller in cash,
without interest and less any applicable withholding taxes (the “Cash Consideration”), plus one non-transferable contractual contingent value right per Share (each, a “CVR”), which represents the right to receive contingent
payments of up to $5.00 in cash in the aggregate, if any, if certain specified milestones are achieved within an agreed upon time period (the Cash Consideration plus one CVR are referred to collectively herein as the “Offer Price”), less
any applicable withholding taxes and without interest, upon the terms and subject to the conditions of the Offer.
We or our nominees are
the holder of record of Shares held for your account. A tender of such Shares can be made only by us as the holder of record and pursuant to your instructions. The Letter of Transmittal accompanying this letter is furnished to you for your
information only and cannot be used by you to tender Shares held by us for your account.
We request instructions as to whether you
wish us to tender any or all of the Shares held by us for your account, upon the terms and subject to the conditions set forth in the enclosed Offer to Purchase and the Letter of Transmittal.
Please note carefully the following:
1. The offer price for the Offer is $23.00 per Share, net to the seller in cash, without interest and less any applicable withholding taxes,
plus one CVR, which represents the right to receive contingent payments of up to
$5.00 in cash in the aggregate, if any, if certain specified milestones are achieved in an agreed upon time period, without interest thereon and less any applicable withholding taxes, upon the
terms and subject to the conditions set forth in the Offer to Purchase.
2. The Offer is being made for all outstanding Shares.
3. The Offer is being made in connection with the Agreement and Plan of Merger, dated as of October 5, 2014 (together with any amendments
or supplements thereto, what we refer to as the “Merger Agreement”), among Parent, Purchaser and Durata, pursuant to which, after the completion of the Offer and the satisfaction or waiver of the conditions set forth therein, Purchaser
will be merged with and into Durata, and Durata will be the surviving corporation (which we refer to as the “Merger”).
4. The
Offer and withdrawal rights will expire at the end of the day, 12:00 midnight, New York City time, on November 14, 2014, unless the Offer is extended by Purchaser or earlier terminated.
5. The Offer is not subject to any financing condition. The Offer is subject to the conditions described in Section 15 of the Offer to
Purchase.
6. Tendering stockholders who are record owners of their Shares and who tender directly to Computershare Trust Company, N.A.
(the “Depositary”) will not be obligated to pay brokerage fees, commissions or similar expenses or, except as otherwise provided in Instruction 6 of the Letter of Transmittal, stock transfer taxes with respect to the purchase of Shares by
Purchaser pursuant to the Offer.
If you wish to have us tender any or all of your Shares, then please so instruct us by completing,
executing, detaching and returning to us the Instruction Form on the detachable part hereof. An envelope to return your instructions to us is enclosed. If you authorize tender of your Shares, then all such Shares will be tendered unless otherwise
specified on the Instruction Form.
Your prompt action is requested. Your Instruction Form should be forwarded to us in ample time to
permit us to submit the tender on your behalf before the Expiration Date.
The Offer is not being made to, nor will tenders be
accepted from or on behalf of, holders of Shares in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the securities, “blue sky” or other laws of such jurisdiction. In those
jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers licensed under the laws of such jurisdiction to
be designated by Purchaser.
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INSTRUCTION FORM
With Respect to the Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
DURATA THERAPEUTICS,
INC.
a Delaware corporation
at
$23.00 per share plus
one non-transferable contractual contingent value right for each share, which represents the right to receive contingent payments of up to $5.00 in cash in the aggregate per share, if any, upon the achievement of certain milestones
Pursuant to the Offer to Purchase
dated October 17, 2014
by
DELAWARE MERGER SUB,
INC.
a wholly owned subsidiary of
ACTAVIS W.C. HOLDING INC.
and an indirect wholly owned subsidiary of
ACTAVIS plc
The
undersigned acknowledge(s) receipt of your letter and the enclosed Offer to Purchase, dated October 17, 2014 (what we refer to as the “Offer to Purchase”), and the related Letter of Transmittal (what we refer to as the “Letter of
Transmittal” and what, together with the Offer to Purchase, as each may be amended or supplemented from time to time, we refer to as the “Offer”), in connection with the offer by Delaware Sub, Inc., a Delaware corporation (which we
refer to as “Purchaser”), a wholly owned subsidiary of Actavis W.C. Holding Inc., Delaware corporation (which we refer to as “Parent”), an indirect subsidiary of Actavis plc, an Irish public limited company, to purchase all
outstanding shares of common stock, par value $0.01 per share (which we refer to as “Shares”), of Durata Therapeutics, Inc., a Delaware corporation, at a purchase price of $23.00 per Share, net to the seller in cash, without interest and
less any applicable withholding taxes, plus one non-transferable contractual contingent value right per Share, which represents the right to receive contingent payments of up to $5.00 in cash in the aggregate, if any, if certain specified milestones
are achieved within an agreed upon time period, less any applicable withholding taxes and without interest, upon the terms and subject to the conditions of the Offer.
The undersigned hereby instruct(s) you to tender to Purchaser the number of Shares indicated below or, if no number is indicated, all Shares
held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Offer. The undersigned understands and acknowledges that all questions as to validity, form and eligibility of the surrender of any
certificate representing Shares submitted on my behalf will be determined by Purchaser and such determination shall be final and binding.
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The method of delivery of this document is at the election and risk of the tendering stockholder. If
delivery is by mail, then registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery prior to the Expiration Date (as defined in the Offer to Purchase).
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Unless otherwise indicated, it will be assumed that all Shares held by us for our account are to be tendered. |
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Exhibit (a)(1)(H)
This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below), and the provisions
herein are subject in their entirety to the provisions of the Offer (as defined below). The Offer is made solely by the Offer to Purchase, dated October 17, 2014, and the related Letter of Transmittal and any amendments or supplements thereto, and
is being made to all holders of Shares. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance
with the securities, “blue sky” or other laws of such jurisdiction. In those jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser (as
defined below) by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
DURATA THERAPEUTICS,
INC.
a Delaware corporation
at
$23.00 per share plus
one non-transferable contractual contingent value right for each share, which represents the right to receive contingent payments of up to $5.00 in cash in the aggregate per share, if any, upon the achievement of certain milestones
Pursuant to the Offer to Purchase
dated October 17, 2014
by
DELAWARE MERGER SUB,
INC.
a wholly owned subsidiary of
ACTAVIS W.C. HOLDING INC.
and an indirect wholly owned subsidiary of
ACTAVIS plc
Delaware
Merger Sub, Inc., a Delaware corporation (“Purchaser”), a wholly owned subsidiary of Actavis W.C. Holding Inc., a Delaware corporation (“Parent”) and an indirect wholly owned subsidiary of ACTAVIS plc, an Irish public limited
company, is offering to purchase for cash all outstanding shares of common stock, par value $0.01 per share (the “Shares”), of Durata Therapeutics, Inc., a Delaware corporation (“Durata”), at a purchase price of $23.00 per Share,
net to the seller in cash, without interest and less any applicable withholding taxes (the “Cash Consideration”), plus one non-transferable contractual contingent value right per Share (each, a “CVR”), which represents the right
to receive contingent payments of up to $5.00 in cash in the aggregate, if any, if certain specified milestones are achieved within an agreed upon time period (the Cash Consideration plus one CVR are referred to collectively herein as the
“Offer Price”), less any applicable withholding taxes and without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated October 17, 2014 (the “Offer to Purchase”), and in the related
Letter of Transmittal (the “Letter of Transmittal” which, together with the Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, constitutes the “Offer”).
Stockholders of record who tender directly to Computershare Trust Company, N.A. (the “Depositary”) will not be obligated to pay
brokerage fees, commissions or similar expenses or, except as otherwise provided in the Letter of Transmittal, stock transfer taxes with respect to the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares through
a broker, dealer, commercial bank, trust company or other nominee should consult with such institution as to whether it charges any service fees or commissions.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT THE END OF THE DAY, 12:00 MIDNIGHT, NEW YORK CITY TIME, ON NOVEMBER 14, 2014, UNLESS THE
OFFER IS EXTENDED OR EARLIER TERMINATED.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of October 5,
2014 (as it may be amended from time to time, the “Merger Agreement”), by and among Parent, Purchaser and Durata. The Merger Agreement provides, among other things, that following the consummation of the Offer and subject to the
satisfaction or waiver of certain conditions, Purchaser will be merged with and into Durata (the “Merger”), with Durata continuing as the surviving corporation in the Merger and a wholly owned subsidiary of Parent. Because the Merger will
be governed by Section 251(h) of the General Corporation Law of the State of Delaware (“DGCL”), no stockholder vote will be required to consummate the Merger. In the Merger, each Share outstanding immediately prior to the effective
time of the Merger (other than Shares held (i) in the treasury of Durata or by Parent, Purchaser or any other subsidiary of Parent, which Shares shall be canceled and shall cease to exist or (ii) by stockholders who validly exercise
appraisal rights under Delaware law with respect to such Shares) will be automatically canceled and converted into the right to receive the Cash Consideration plus one CVR, without interest thereon and less any applicable withholding taxes. As a
result of the Merger, Durata will cease to be a publicly traded company and will become wholly owned by Parent. Under no circumstances will interest be paid on the purchase price for Shares, regardless of any extension of the Offer or any delay in
making payment for Shares. The Merger Agreement is more fully described in the Offer to Purchase.
The Offer is not subject to any
financing condition. The Offer is conditioned upon, among other things, (a) the absence of a termination of the Merger Agreement in accordance with its terms and (b) the satisfaction of (i) the Minimum Condition (as described below),
(ii) the HSR Condition (as described below) and (iii) the Governmental Entity Condition (as described below). The Minimum Condition requires that the number of Shares validly tendered (excluding Shares tendered pursuant to guaranteed
delivery procedures but not yet delivered) in accordance with the terms of the Offer and not validly withdrawn on or prior to the end of the day, 12:00 midnight (New York City time), on November 14, 2014 (the “Expiration Date,” unless
Purchaser shall have extended the period during which the Offer is open in accordance with the Merger Agreement, in which event “Expiration Date” shall mean the latest time and date at which the Offer, as so extended by Purchaser, shall
expire), together with any Shares then owned by Parent and its subsidiaries, equals at least one Share more than one half of all Shares then outstanding. The HSR Condition requires that any applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the “HSR Act”), shall have expired or otherwise been terminated. Under the HSR Act, each of Parent and Durata expect to file by
October 20, 2014 a Premerger Notification and Report Form with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the U.S. Department of Justice in connection with the purchase of Shares in the Offer. The
Governmental Entity Condition requires that there be no law, regulation, order, injunction or decree enacted, enforced, amended, issued, in effect or deemed applicable to the Offer, by any governmental entity (other than the application of the
waiting period provisions of the HSR Act to the Offer) that is in effect, and that no governmental entity shall have taken any other action, in each case the effect of which is to make illegal or otherwise prohibit consummation of the Offer or the
Merger. The Offer is also subject to other conditions as described in the Offer to Purchase.
The board of directors of Durata, among
other things, has (i) determined that the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, are advisable and fair to, and in the best interests of, Durata and its stockholders, (ii) approved
the Merger Agreement and the transactions contemplated thereby and declared that the Merger Agreement, the Offer, the Merger and the other transactions contemplated by the Merger Agreement are advisable and (iii) resolved to recommend that the
stockholders of Durata accept the Offer and tender all of their Shares pursuant to the Offer.
The Merger Agreement contains
provisions to govern the circumstances in which Purchaser is required or permitted to extend the Offer and in which Parent is required to cause the Purchaser to extend the Offer. Specifically, the Merger Agreement provides that: (i) if any
Offer condition has not been satisfied or waived, Purchaser shall (and Parent shall cause Purchaser to) extend the Offer for successive periods of not more than ten business days each (or such longer period as Parent, Purchaser and Durata may
agree), the length of each such period to be determined by Purchaser, in order to permit the satisfaction of the Offer conditions; and (ii) Purchaser
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shall, and Parent shall cause Purchaser to, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer or
necessary to resolve any comments of the SEC or its staff applicable to the Offer, the Schedule TO to be filed by Parent and Purchaser or other required ancillary documents. However, Purchaser is not required to extend the Offer beyond March 5,
2015 and will not, without Durata’s consent, extend the Offer beyond March 5, 2015. Purchaser has agreed that it will terminate the Offer promptly upon any termination of the Merger Agreement (and in any event within one business day of
such termination).
Subject to the terms and conditions of the Merger Agreement and applicable law, Parent and Purchaser expressly reserve
the right to waive, in whole or in part, any condition to the Offer or modify the terms of the Offer; provided, however, that, without the consent of Durata, Parent and Purchaser are not permitted to (i) decrease the Offer Price or change the
form of consideration payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer conditions or amend any Offer condition, (iv) waive or
amend the Minimum Condition, (v) amend any other term of the Offer in a manner that is adverse to the holders of Shares or (vi) extend the Expiration Date except as required or permitted by the terms of the Merger Agreement. Any extension,
delay, termination or amendment of the Offer will be followed as promptly as practicable by public announcement thereof, and such announcement in the case of an extension will be made no later than 9:00 a.m., New York City time, on the next business
day after the previously scheduled Expiration Date. Without limiting the manner in which Purchaser may choose to make any public announcement, it currently intends to make announcements regarding the Offer by issuing a press release and making any
appropriate filing with the SEC.
Because the Merger will be governed by Section 251(h) of the DGCL, Purchaser does not expect there
to be a significant period of time between the consummation of the Offer and the consummation of the Merger.
On the terms of and subject
to the Offer conditions, promptly after the Expiration Date of the Offer, Purchaser will accept for payment, and pay for, all Shares validly tendered to Purchaser in the Offer and not validly withdrawn prior to the Expiration Date of the Offer. For
purposes of the Offer, Purchaser will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and not properly withdrawn as, if and when Purchaser gives oral or written notice to the Depositary of its acceptance for
payment of such Shares pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price for such Shares with the Depositary,
which will act as paying agent for tendering stockholders for the purpose of receiving payments from Purchaser and transmitting such payments to tendering stockholders whose Shares have been accepted for payment. If Purchaser extends the Offer, is
delayed in its acceptance for payment of Shares or is unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to Purchaser’s rights under the Offer and the Merger Agreement, the Depositary may retain
tendered Shares on Purchaser’s behalf, and such Shares may not be withdrawn except to the extent that tendering stockholders are entitled to withdrawal rights as described in the Offer to Purchase and as otherwise required by Rule 14e-1(c)
under the Exchange Act. Under no circumstances will Parent or Purchaser pay interest on the purchase price for Shares by reason of any extension of the Offer or any delay in making such payment for Shares.
No alternative, conditional or contingent tenders will be accepted. In all cases, payment for Shares accepted for payment pursuant to the
Offer will only be made after timely receipt by the Depositary of (i) certificates evidencing such Shares (the “Share Certificates”) or confirmation of a book-entry transfer of such Shares (a “Book-Entry Confirmation”) into
the Depositary’s account at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in the Offer to Purchase, (ii) the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly
executed, with any required signature guarantees or, in the case of a book-entry transfer, an Agent’s Message (as described in the Offer to Purchase) in lieu of the Letter of Transmittal and (iii) any other documents required by the Letter
of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when Share Certificates or Book-Entry Confirmations with respect to Shares are actually received by the Depositary.
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Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Date
and, unless theretofore accepted for payment by Purchaser pursuant to the Offer, may also be withdrawn at any time after December 16, 2014, which is the 60th day after the date of the commencement of the Offer.
For a withdrawal to be proper and effective, a written, telegraphic or facsimile transmission notice of withdrawal must be timely received by
the Depositary at one of its addresses set forth on the back cover page of the Offer to Purchase. Any such notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the
name in which the Share Certificates are registered if different from that of the person who tendered such Shares. If Share Certificates evidencing Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to
the physical release of such Share Certificates, the serial numbers shown on such Share Certificates must be submitted to the Depositary and the signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution (as described in
the Offer to Purchase), unless such Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedure for book-entry transfer as set forth in the Offer to Purchase, any notice of withdrawal
must also specify the name and number of the account at DTC to be credited with the withdrawn Shares.
Withdrawals of Shares may not be
rescinded. Any Shares properly withdrawn will thereafter be deemed not to have been validly tendered for purposes of the Offer. However, withdrawn Shares may be re-tendered by again following one of the procedures described in the Offer to Purchase
at any time prior to the Expiration Date.
Purchaser will determine, in its sole discretion, all questions as to the form and validity
(including time of receipt) of any notice of withdrawal and Purchaser’s determination will be final and binding. None of Purchaser, the Depositary, the Information Agent or any other person will be under any duty to give notice of any defects
or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification.
The information
required to be disclosed by paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference.
Durata has provided Purchaser with Durata’s stockholder list and security position listings for the purpose of disseminating the Offer to
Purchase, the related Letter of Transmittal and other related materials to holders of Shares. The Offer to Purchase and related Letter of Transmittal will be mailed to record holders of Shares whose names appear on Durata’s stockholder list and
will be furnished to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agency’s
security position listing for subsequent transmittal to beneficial owners of Shares.
The receipt of cash and CVRs in exchange for Shares
pursuant to the Offer or the Merger generally will be a taxable transaction for U.S. federal income tax purposes. The amount of gain or loss a holder recognizes, and the timing and character of such gain or loss, depends on the U.S. federal income
tax treatment of the CVRs, with respect to which there is uncertainty. See Section 5 — “Material United States Federal Income Tax Consequences” of the Offer to Purchase for a more detailed discussion of the tax treatment of the
Offer. Each holder of Shares should consult with its tax advisor as to the particular tax consequences to such holder of exchanging Shares for cash in the Offer or the Merger.
The Offer to Purchase and the related Letter of Transmittal contain important information. Holders of Shares should carefully read both
documents in their entirety before any decision is made with respect to the Offer.
Questions and requests for assistance may be
directed to the Information Agent at its address and telephone numbers set forth below. Requests for copies of the Offer to Purchase, the Letter of Transmittal, the notice of
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guaranteed delivery and other tender offer materials may be directed to the Information Agent. Such copies will be furnished promptly at Purchaser’s expense. Stockholders may also contact
brokers, dealers, commercial banks or trust companies for assistance concerning the Offer. Except as set forth in the Offer to Purchase, neither Purchaser nor Parent will pay any fees or commissions to any broker or dealer or any other person for
soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks, trust companies or other nominees will, upon request, be reimbursed by Purchaser for customary mailing and handling expenses incurred by them in forwarding the
Offer materials to their customers.
The Information Agent for the Offer is:
MacKenzie Partners, Inc.
105 Madison Avenue
New York, New
York 10016
212-929-5500 (Call Collect) or
CALL TOLL FREE 800-322-2885
Email:
tenderoffer@mackenziepartners.com
October 17, 2014
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