SC TO-T/A 1 dp43311_sctota-a7.htm FORM SC TO-T/A
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549
 
 
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1)
OR 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
 
(Amendment No. 7)
 
VIROPHARMA INCORPORATED
(Name of Subject Company (Issuer))
 
VENUS NEWCO, INC.
SHIRE PHARMACEUTICAL HOLDINGS IRELAND LIMITED
(Names of Filing Persons (Offeror))
 
Common Stock, Par Value $0.002 Per Share
(Title of Class of Securities)
 
 
928241108
(Cusip Number of Class of Securities)
 
Michael Garry
Shire Pharmaceutical Holdings Ireland Limited
5 Riverwalk, Citywest Business Campus
Dublin 24, Ireland
+353 1 429 7700
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
 
Copies to:
George R. Bason, Jr.
William J. Chudd
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
 
 
o           Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the statement relates:
x           third-party tender offer subject to Rule 14d-1.
o           issuer tender offer subject to Rule 13e-4.
o           going-private transaction subject to Rule 13e-3.
o           amendment to Schedule 13D under Rule 13d-2.
 
Check the following box if the filing is a final amendment reporting the results of the tender offer.   x
 
 
 
 
 

 
This Amendment No. 7 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Shire Pharmaceutical Holdings Ireland Limited, a company incorporated in Ireland (“SPHIL”), and Venus Newco, Inc., a Delaware corporation and a wholly owned subsidiary of SPHIL (“Purchaser”), with the Securities and Exchange Commission on November 25, 2013 (as previously amended and together with any subsequent amendments and supplements thereto, the “Schedule TO”). The Schedule TO relates to the offer by Purchaser to purchase all of the outstanding shares of common stock, par value $0.002 per share (the “Shares”), of ViroPharma Incorporated, a Delaware corporation (“ViroPharma”), for $50.00 per Share, net to the seller in cash, without interest and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated November 25, 2013 (as amended or supplemented, the “Offer to Purchase”) and in the related Letter of Transmittal, copies of which are attached as Exhibit (a)(1)(i) and (a)(1)(ii), respectively, to the Schedule TO.
 
Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment.  Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule TO.
 
Items 1 through 9 and Item 11.
 
Items 1 through 9 and Item 11 of the Schedule TO are hereby amended and supplemented by adding the following text thereto:

At midnight, New York City time, on Thursday, January 23, 2014 (one minute after 11:59 p.m., New York City time, on January 23, 2014), the Offer expired as scheduled and was not extended. As of midnight on January 23, 2014, approximately 53,745,956 Shares (excluding 3,597,087 Shares tendered by notice of guaranteed delivery) had been validly tendered and not withdrawn pursuant to the Offer, representing approximately 79.5% of the outstanding Shares.

The number of Shares tendered into the Offer satisfies the Minimum Condition. All conditions to the Offer having been satisfied or waived, Purchaser accepted for payment, and has paid or will promptly pay for, all Shares validly tendered into and not withdrawn from the Offer.

Following the consummation of the Offer, the remaining conditions to the Merger set forth in the Merger Agreement were satisfied or waived, and on January 24, 2014, SPHIL completed the acquisition of ViroPharma by consummating the Merger pursuant to the terms of the Merger Agreement and in accordance with Section 251(h) of the DGCL. At the Merger Effective Time, any Shares not purchased pursuant to the Offer (other than Shares owned by SPHIL or Purchaser, or ViroPharma or any of its subsidiaries, and Shares owned by stockholders who had properly exercised any available rights of appraisal under Section 262 of the DGCL) were automatically converted into the right to receive, in cash and without interest, an amount equal to the Offer Price.

Following the Merger, all Shares ceased to trade on NASDAQ.  Shire intends to take steps to cause the termination of the registration of the Shares under the Exchange Act and suspend all of ViroPharma’s reporting obligations under the Exchange Act as promptly as practicable.
 
On January 24, 2014, Shire issued a press release announcing the expiration and results of the Offer. The full text of the press release is attached hereto as Exhibit (a)(5)(xvii), and is incorporated herein by reference.
 
 
Item 12 (Exhibits).
 
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:

(a)(5)(xvii)      Press Release issued by Shire plc dated January 24, 2014 announcing the expiration and results of the tender offer and expected completion of the merger.
 
 
 
 
 
SIGNATURES
 
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certify that the information set forth in this statement is true, complete and correct.
 
Date:  January 24, 2014
 
Venus Newco, Inc.
 
 
 
By:
 /s/ Jeffrey Poulton
Name:       Jeffrey Poulton
Title:         President
 
 
Shire Pharmaceutical Holdings Ireland Limited
 
 
 
By:
 /s/ Michael Garry
Name:       Michael Garry
Title:         Director
 
 

 
 
 
 
EXHIBIT INDEX
 
Exhibit No.
Description
(a)(1)(i)
Offer to Purchase dated November 25, 2013.
(a)(1)(ii)
Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9).
(a)(1)(iii)
Notice of Guaranteed Delivery.
(a)(1)(iv)
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
(a)(1)(v)
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
(a)(1)(vi)
Summary Advertisement dated November 25, 2013.
(a)(5)(i)
Joint Press Release issued by Shire plc and ViroPharma Incorporated dated November 11, 2013 (incorporated by reference to the Schedule TO-C filed by Shire Pharmaceutical Holdings Ireland Limited and Venus Newco, Inc. on November 12, 2013).
(a)(5)(ii)
Slide Presentation (incorporated by reference to the Schedule TO-C filed by Shire Pharmaceutical Holdings Ireland Limited and Venus Newco, Inc. on November 12, 2013).
(a)(5)(iii)
Letter to ViroPharma Employees dated November 11, 2013 (incorporated by reference to the Schedule TO-C filed by Shire Pharmaceutical Holdings Ireland Limited and Venus Newco, Inc. on November 12, 2013).
(a)(5)(iv)
Transcript of Investor Conference Call held on November 11, 2013 (incorporated by reference to the Schedule TO-C filed by Shire Pharmaceutical Holdings Ireland Limited and Venus Newco, Inc. on November 12, 2013).
(a)(5)(v)
Prepared Remarks of Flemming Ornskov, M.D., Chief Executive Officer of Shire (incorporated by reference to the Schedule TO-C filed by Shire Pharmaceutical Holdings Ireland Limited and Venus Newco, Inc. on November 12, 2013).
(a)(5)(vi)
Letter to Patients (incorporated by reference to the Schedule TO-C filed by Shire Pharmaceutical Holdings Ireland Limited and Venus Newco, Inc. on November 12, 2013).
(a)(5)(vii)
Complaint filed in the Court of Chancery of the State of Delaware on November 19, 2013 (Eileen Bradley v. ViroPharma Incorporated, et al.).
(a)(5)(viii)
Complaint filed in the Court of Chancery of the State of Delaware on November 20, 2013(Mary Manley v. ViroPharma Incorporated, et al.).
(a)(5)(ix)
Complaint filed in the Court of Chancery of the State of Delaware on November 21, 2013 (Orrin H. Turbow v. ViroPharma Incorporated, et al.).
(a)(5)(x)
Complaint filed in the Court of Chancery of the State of Delaware on December 4, 2013 (Brian Cohen v. ViroPharma Incorporated, et al.).
(a)(5)(xi)
Press Release issued by Shire plc dated December 11, 2013 announcing expiration of the HSR waiting period.
(a)(5)(xii)
Letter to ViroPharma Employees dated December 24, 2013.
(a)(5)(xiii)
Press Release issued by Shire plc dated December 27, 2013 announcing extension of the tender offer.
(a)(5)(xiv)
Press Release issued by Shire plc dated January 10, 2014 announcing extension of the tender offer.
(a)(5)(xv)
Press Release issued by Shire plc dated January 15, 2014 announcing the waiver of the condition relating to UK OFT review.
(a)(5)(xvi)
Letter to ViroPharma Employees dated January 15, 2014.
(a)(5)(xvii)
Press Release issued by Shire plc dated January 24, 2014 announcing the expiration and results of the tender offer and the expected completion of the merger.
(b)(1)
Facilities Agreement dated November 11, 2013 among Shire plc, Morgan Stanley Bank International Limited, as mandated lead arranger and bookrunner, a syndicate of lenders and the other parties thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by
 
 
 
 
 
 
 
Shire plc on November 12, 2013).
(b)(2)
Multicurrency revolving and swingline facilities agreement as at November 23, 2010 by and among Shire plc & with a number of financial institutions, for which Abbey National Treasury Services Plc (trading as Santander Global Banking and Markets), Bank of America Securities Limited, Barclays Capital, Citigroup Global Markets Limited, Lloyds TSB Bank plc and The Royal Bank of Scotland plc acted as mandated lead arrangers and bookrunners (incorporated by reference to Exhibit 10.28 to the Current Report on Form 10-K filed by Shire plc on February 23, 2011).
(b)(3)
Letter agreement dated December 13, 2013 among Shire plc, Morgan Stanley Bank International Limited, as agent, and the other parties thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Shire plc on December 16, 2013).
(c)   
Not applicable.
(d)(1)
Agreement and Plan of Merger dated as of November 11, 2013 among Shire Pharmaceutical Holdings Ireland Limited, Venus Newco, Inc., ViroPharma Incorporated and Shire plc (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Shire plc on November 12, 2013).
(d)(2)
Confidentiality Agreement dated as of June 20, 2013 between ViroPharma Incorporated and Shire Pharmaceutical Holdings Ireland Limited.
(e)   
Not applicable.
(f)
Not applicable.
(g)
Not applicable.
(h)
Not applicable.