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. 2)
_________________________________
ZS PHARMA, INC.
(Name of Subject Company)
ZANZIBAR ACQUISITION CORP.
ZENECA, INC.
ASTRAZENECA PLC
(Names of Filing Persons – Offeror)
Common Stock, Par Value $0.001 Per Share
(Title of Class of Securities)
_________________________________
98979G 105
(Cusip Number of Class of Securities)
Adiah Ferron Reid
1800 Concord Pike
Wilmington, DE 19850-5437
Telephone: (302) 886-3000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Marc O. Williams, Esq.
Brian Wolfe, Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
_________________________________
| ¨ | 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. x
This Amendment No. 2 (this “Amendment No. 2”) amends and supplements the Tender Offer Statement on Schedule TO originally filed by AstraZeneca PLC, a public limited company incorporated under the laws of England and Wales (“Ultimate Parent”), Zeneca Inc., a Delaware corporation and indirect wholly owned subsidiary of Ultimate Parent (“Parent”), and Zanzibar Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Purchaser”), with the Securities and Exchange Commission on November 18, 2015 (the “Schedule TO”). This Amendment No. 2 and the Schedule TO relate to the offer by Purchaser to purchase all outstanding shares of common stock, par value $0.001 per share (the “Shares”), of ZS Pharma, Inc., a Delaware corporation, at $90.00 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 18, 2015 (as it may be amended or supplemented, the “Offer to Purchase”), and in the related Letter of Transmittal (which, together with the Offer to Purchase, as each may be amended or supplemented, constitute the “Offer”), copies of which are attached as Exhibits (a)(1)(i) and (a)(1)(ii), respectively, to the Schedule TO. The expiration date of the Offer was at 12:00 midnight, New York City time, at the end of the day on December 16, 2015.
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 No. 2. 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 as a new section at the end of the Offer to Purchase:
“19. Expiration of the Offer
The Offer and withdrawal rights expired at 12:00 midnight, New York City time, at the end of the day on December 16, 2015 (the “Expiration Date”). Citibank, N.A. (the “Depositary”) has advised that, as of 12:00 midnight, New York City time, at the end of the day on the Expiration Date, 21,948,939 Shares had been validly tendered (excluding all Shares delivered pursuant to guaranteed delivery instructions for which certificates have not yet been delivered) and not properly withdrawn pursuant to the Offer, representing approximately 86.6% of the outstanding Shares on a fully diluted basis as of the Expiration Date. In addition, Notices of Guaranteed Delivery had been delivered for 984,853 Shares, representing approximately 3.9% of the outstanding Shares on a fully diluted basis as of the Expiration Date. The number of Shares validly tendered (excluding all Shares delivered pursuant to guaranteed delivery instructions for which certificates have not yet been delivered) and not properly withdrawn pursuant to the Offer satisfies the Minimum Condition.
All conditions to the Offer having been satisfied or waived, on December 17, 2015, Purchaser accepted for payment all Shares validly tendered and not properly withdrawn prior to the Expiration Date (the “Acceptance Time”), and payment of the Offer Price for such Shares will be made promptly.
Following expiration of the Offer and acceptance for payment of the Shares, Parent completed its acquisition of ZS Pharma by consummating the Merger pursuant to the terms of the Merger Agreement and without a meeting of stockholders of ZS Pharma in accordance with Section 251(h) of the DGCL. At the Merger Effective Time, Purchaser was merged with and into ZS Pharma, with ZS Pharma continuing as the Surviving Corporation and a wholly owned subsidiary of Parent. Each outstanding Share (other than Shares held by ZS Pharma, any of its subsidiaries, Parent, Purchaser, any other subsidiary of Parent, or any stockholders who have properly exercised their appraisal rights under Section 262 of the DGCL) was converted into the right to receive, in cash and without interest, less any required withholding taxes, an amount equal to the Offer Price. The Shares will no longer be listed on The NASDAQ Global Market.
On December 17, 2015, the Ultimate Parent issued a press release relating to the expiration of the Offer and the anticipation of consummating the Merger. The press release is attached as Exhibit (a)(5)(vii) hereto, and is incorporated herein by reference.”
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit thereto:
Exhibit Number |
Description | |
| (a)(5)(vii) | Press Release issued by AstraZeneca PLC on December 17, 2015. |
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: December 17, 2015
| ZANZIBAR ACQUISITION CORP. | ||
| By: |
/s/ David E. White | |
| Name: | David E. White | |
| Title: | Director | |
| ZENECA INC. | ||
| By: |
/s/ David E. White | |
| Name: | David E. White | |
| Title: | Director | |
| ASTRAZENECA PLC | ||
| By: |
/s/ Marc Dunoyer | |
| Name: | Marc Dunoyer | |
| Title: | Director | |
EXHIBIT INDEX
Exhibit No. |
Description |
| (a)(1)(i)* | Offer to Purchase, dated as of November 18, 2015. |
| (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 as published in the Wall Street Journal on November 18, 2015. |
| (a)(5)(i) | Press release issued by AstraZeneca PLC dated November 6, 2015 (incorporated by reference to Exhibit 99.1 of the Zeneca, Inc. Pre-Commencement Communication on Schedule TO filed with the Commission on November 6, 2015). |
| (a)(5)(ii) | Email sent by Pascal Soriot, CEO of AstraZeneca PLC, to ZS Pharma, Inc. employees dated November 6, 2015 (incorporated by reference to Exhibit 99.2 of the Zeneca, Inc. Pre-Commencement Communication on Schedule TO filed with the Commission on November 6, 2015). |
| (a)(5)(iii) | Investor Relations presentation regarding the acquisition of ZS Pharma, Inc. dated November 6, 2015 (incorporated by reference to Exhibit 99.3 of the Zeneca, Inc. Pre-Commencement Communication on Schedule TO filed with the Commission on November 6, 2015). |
| (a)(5)(iv) | Key messages and Q&A regarding acquisition of ZS Pharma, Inc. dated November 6, 2015 (incorporated by reference to Exhibit 99.4 of the Zeneca, Inc. Pre-Commencement Communication on Schedule TO filed with the Commission on November 6, 2015). |
| (a)(5)(v) | Presentation given by Pascal Soriot, CEO of AstraZeneca PLC, to ZS Pharma, Inc. employees on November 10, 2015 (incorporated by reference to Exhibit 99.1 of the Zeneca, Inc. Pre-Commencement Communication on Schedule TO filed with the Commission on November 10, 2015). |
| (a)(5)(vi) | Transcript of video regarding AstraZeneca PLC’s strategy, as included on slide 26 in the presentation attached as Exhibit 99.1 (incorporated by reference to Exhibit 99.2 of the Zeneca, Inc. Pre-Commencement Communication on Schedule TO filed with the Commission on November 10, 2015). |
| (a)(5)(vii)* | Press Release issued by AstraZeneca PLC on December 17, 2015. |
| (b) | Not applicable. |
| (c) | Not applicable. |
| (d)(1) | Agreement and Plan of Merger dated November 5, 2015, among ZS Pharma, Inc., Zeneca, Inc. and Zanzibar Acquisition Corp. (incorporated by reference to Exhibit 1 to the Zeneca, Inc. Beneficial Ownership Report on Schedule 13D filed with the Commission on November 13, 2015). |
| (d)(2)* | Amendment No. 1 to the Merger Agreement, dated as of November 17, 2015, by and among ZS Pharma, Zeneca, Inc. and Zanzibar Acquisition Corp. |
| (d)(3)* | Confidentiality Agreement dated August 23, 2015, between ZS Pharma, Inc. and AstraZeneca Pharmaceuticals LP. |
| (d)(4) | Form of Tender and Support Agreement dated November 5, 2015, among Zeneca, Inc., Zanzibar Acquisition Corp. and each of the persons set forth on Schedule A thereto (incorporated by reference to Exhibit 2 to the Zeneca, Inc. Beneficial Ownership Report on Schedule 13D filed with the Commission on November 13, 2015). |
| (e) | Not applicable. |
| (f) | Not applicable. |
| (g) | Not applicable. |
| (h) | Not applicable. |
| * | Filed herewith |
Exhibit (a)(5)(vii)
AstraZeneca COMPLETES ACQUISITION OF ZS PHARMA
AstraZeneca announced today the successful completion of the tender offer for all of the outstanding shares of ZS Pharma (NASDAQ: ZSPH) and the subsequent acquisition of ZS Pharma as previously announced in November.
The transaction strengthens AstraZeneca’s cardiovascular and metabolic disease (CVMD) portfolio with the addition of the potassium-binding compound ZS-9 (sodium zirconium cyclosilicate), a potential best-in-class treatment for hyperkalaemia, a condition associated with increased mortality in patients with chronic kidney disease (CKD), diabetes mellitus (DM), and chronic heart failure (CHF). ZS-9 is under regulatory review by the US Food and Drug Administration with a Prescription Drug User Fee Act goal date of 26 May 2016. A submission for European Marketing Application Authorisation is also progressing as planned. ZS-9 complements the Company’s increasing focus on CKD and CHF, including the investigational medicine roxadustat, which is currently in Phase III development for patients with anaemia associated with CKD, as well as its leading diabetes portfolio, a comorbidity often associated with CKD and CHF patients.
The tender offer expired at 00:00 EST on 16 December 2015 and was not extended. As of the expiration of the tender offer, a total of approximately 21,948,939 shares of ZS Pharma common stock were validly tendered and not withdrawn (excluding shares tendered pursuant to notices of guaranteed delivery for which certificates have not been delivered), representing approximately 86.6% of ZS Pharma’s outstanding shares. All shares that were validly tendered and not withdrawn pursuant to the tender offer were accepted for payment today.
After the acceptance of shares that were validly tendered and not withdrawn pursuant to the tender offer, AstraZeneca completed its acquisition of ZS Pharma through a merger of one of its subsidiaries with and into ZS Pharma. In connection with the merger, each outstanding share of ZS Pharma that was not accepted for payment in the tender offer (excluding shares held as treasury stock and any shares as to which appraisal rights have been validly exercised under Delaware law) were cancelled and converted into the right to receive $90.00 per share in cash, without interest and less any required withholding taxes, the same as the tender offer price. Following completion of the merger, ZS Pharma’s shares ceased to be listed on NASDAQ, and ZS Pharma became a wholly owned subsidiary of AstraZeneca.
– ENDS –
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
SOME OF THE STATEMENTS CONTAINED IN THIS ANNOUNCEMENT ARE FORWARD LOOKING STATEMENTS, INCLUDING THE POSSIBILITY THAT THE TRANSACTION WILL NOT BE COMPLETED AND OTHER RISKS AND UNCERTAINTIES DISCUSSED IN ZS PHARMA’S PUBLIC FILINGS WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (SEC), INCLUDING THE “RISK FACTORS” SECTIONS OF ZS PHARMA’S ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2014 AND SUBSEQUENT QUARTERLY REPORTS ON FORM 10-Q, AS WELL AS THE TENDER OFFER DOCUMENTS FILED BY SUBSIDIARIES OF ASTRAZENECA AND THE SOLICITATION/RECOMMENDATION STATEMENT FILED BY ZS PHARMA. THESE STATEMENTS ARE BASED ON CURRENT EXPECTATIONS, ASSUMPTIONS, ESTIMATES AND PROJECTIONS, AND INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS THAT MAY CAUSE RESULTS, LEVELS OF ACTIVITY, PERFORMANCE OR ACHIEVEMENTS TO BE MATERIALLY DIFFERENT FROM ANY FUTURE STATEMENTS. THESE STATEMENTS ARE GENERALLY IDENTIFIED BY WORDS OR PHRASES SUCH AS “BELIEVE,” “ANTICIPATE,” “EXPECT,” “INTEND,” “PLAN,” “WILL,” “MAY,” “SHOULD,” “ESTIMATE,” “PREDICT,” “POTENTIAL,” “CONTINUE” OR THE NEGATIVE OF SUCH TERMS OR OTHER SIMILAR EXPRESSIONS. IF UNDERLYING ASSUMPTIONS PROVE INACCURATE OR UNKNOWN RISKS OR UNCERTAINTIES MATERIALIZE, ACTUAL RESULTS AND THE TIMING OF EVENTS MAY DIFFER MATERIALLY FROM THE RESULTS AND/OR TIMING DISCUSSED IN THE FORWARD-LOOKING STATEMENTS, AND YOU SHOULD NOT PLACE UNDUE RELIANCE ON THESE STATEMENTS. ASTRAZENECA AND ZS PHARMA DISCLAIM ANY INTENT OR OBLIGATION TO UPDATE ANY FORWARD-LOOKING STATEMENTS AS A RESULT OF DEVELOPMENTS OCCURRING AFTER THE DATE HEREOF OR OTHERWISE.
About ZS Pharma
ZS Pharma, founded in 2008, is a publicly traded biopharmaceutical company dedicated to challenging the status quo in disease states where therapeutic options have been limited. The company has been focused on using its proprietary ion-trap technology to develop new treatments of kidney and liver diseases that are focused on addressing unmet needs in the medical community. For more information, please visit: www.zspharma.com.
About AstraZeneca in Cardiovascular & Metabolic Disease (CVMD)
Cardiovascular, metabolic disease and chronic kidney disease are key areas of focus for AstraZeneca as part of the company’s strategy for achieving scientific leadership and returning to growth. Our patient-led strategy is focused on addressing the multiple risk factors facing CVMD and CKD patients at different stages of their disease, with the goal of reducing morbidity and mortality through life changing medicines. One of the innovative medicines currently in Phase III development is roxadustat as a potential therapy for anaemia associated with chronic kidney disease, in patients on dialysis and those who are not on dialysis. The global development programme is being conducted by FibroGen in collaboration with AstraZeneca and Astellas.
About AstraZeneca
AstraZeneca is a global, innovation-driven biopharmaceutical business that focuses on the discovery, development and commercialisation of prescription medicines, primarily for the treatment of cardiovascular, metabolic, respiratory, inflammation, autoimmune, oncology, infection and neuroscience diseases. AstraZeneca operates in over 100 countries and its innovative medicines are used by millions of patients worldwide. For more information please visit: www.astrazeneca.com
CONTACTS
Media Enquiries
|
||
Esra Erkal-Paler |
UK/Global | +44 20 7604 8030 |
Vanessa Rhodes |
UK/Global | +44 20 7604 8037 |
| Karen Birmingham | UK/Global | +44 20 7604 8120 |
Jacob Lund |
Sweden | +46 8 553 260 20 |
| Michele Meixell | US | +1 302 885 2677 |
| Investor Enquiries | ||
| UK | ||
Thomas Kudsk Larsen |
Oncology | +44 7818 524185 |
| Eugenia Litz | RIA |
+44 7884 735627 |
| Nick Stone | CVMD |
+44 7717 618834 |
| Craig Marks | Finance | +44 7881 615764 |
Christer Gruvris |
Consensus Forecasts | +44 7827 836825 |
| US | ||
| Lindsey Trickett | Oncology, ING | +1 240 543 7970 |
| Mitch Chan | Oncology | +1 240 477 3771 |
| Dial / Toll-Free | +1 866 381 7277 |
Key: RIA - Respiratory, Inflammation and Autoimmunity, CVMD - Cardiovascular and Metabolic Disease,
ING - Infection, Neuroscience and Gastrointestinal
17 December 2015
-ENDS-