SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO/A
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 7)
PHARMERICA CORPORATION
(Name of Subject Company (Issuer))
PHILADELPHIA ACQUISITION SUB, INC.
OMNICARE, INC.
(Names of Filing Persons (Offerors))
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
71714F104
(CUSIP Number of Class of Securities)
John G. Figueroa
Chief Executive Officer
Omnicare, Inc.
1600 RiverCenter II
100 East RiverCenter Boulevard
Covington, Kentucky 41011
Telephone: (859) 392-3300
(Name, address and telephone number of person
authorized to receive notices and communications on behalf of filing persons)
Copies to:
Morton A. Pierce, Esq.
Chang-Do Gong, Esq.
Dewey & LeBoeuf LLP
1301 Avenue of the Americas
New York, New York 10019
Telephone: (212) 259-8000
CALCULATION OF FILING FEE
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Transaction Valuation* |
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Amount Of Filing Fee** |
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$498,732,885 |
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$57,903 |
* For purposes of calculating the amount of the filing fee only. Based on the offer to purchase up to 33,248,859 shares of common stock, par value $0.01 per share (the “Shares”), of PharMerica Corporation (“PharMerica”), including the associated preferred share purchase rights, at a purchase price of $15.00 per Share, net to the seller in cash, without interest and subject to any required withholding of taxes. Such number of Shares consists of (i) 29,386,392 Shares issued and outstanding as of July 29, 2011, as reported in PharMerica’s Quarterly Report on Form 10-Q for the period ended June 30, 2011 (the “PharMerica Form 10-Q”) and (ii) 3,862,467 Shares that may be issued before the expiration of the offer pursuant to the exercise of stock options and the vesting of restricted stock units and performance share units based on the total number of stock options, restricted stock units and performance share units outstanding as of June 30, 2011, as reported in the PharMerica Form 10-Q.
** Calculated in accordance with Rule 0-11 promulgated under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #5 for Fiscal Year 2011, by multiplying the transaction value by 0.0001161.
x Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid: |
$57,903 |
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Filing Parties: |
Omnicare, Inc. |
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Philadelphia Acquisition Sub, Inc. |
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Form or Registration No.: |
SC TO-T |
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Date Filed: |
September 7, 2011 |
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.
¨ 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: o
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
o Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
o Rule 14d-1(d) (Cross-Border Third Party Tender Offer)
SCHEDULE TO
This Amendment No. 7 to Schedule TO (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on September 7, 2011 (together with any amendments and supplements thereto, the “Schedule TO”) by Omnicare, Inc., a Delaware corporation (“Omnicare”), and Philadelphia Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Omnicare (“Purchaser”), relating to the offer by Purchaser to purchase (1) all issued and outstanding shares of common stock, par value $0.01 per share (the “Shares”), of PharMerica Corporation, a Delaware corporation (“PharMerica”), and (2) the associated rights to purchase shares of Series A Junior Participating Preferred Stock, par value $0.01 per share, of PharMerica (the “Rights”) issued pursuant to the Rights Agreement, dated as of August 25, 2011 (the “Rights Agreement”), between PharMerica and Mellon Investor Services LLC, as Rights Agent, at a price of $15.00 per Share (including the associated Rights), net to the seller in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 7, 2011 (the “Offer to Purchase”), and in the related Letter of Transmittal (which, together with the Offer to Purchase and any amendments or supplements thereto, constitute the “Offer”). Unless the context otherwise requires, all references herein to the “Shares” shall be deemed to include the associated Rights, and all references herein to the “Rights” shall be deemed to include the benefits that may inure to holders of the Rights pursuant to the Rights Agreement. This Amendment is being filed on behalf of Omnicare and Purchaser.
The information set forth in the Offer to Purchase, including Schedule I thereto, is hereby incorporated by reference in answer to Items 1 through 9 and Item 11 of this Amendment, except as otherwise set forth below. This Amendment should be read together with the Schedule TO.
ITEMS 1 THROUGH 9 AND ITEM 11.
The Offer to Purchase is hereby amended as follows:
1. The following paragraphs are hereby added at the end of Section 10 — “Background of the Offer”:
“From late September to mid-October, 2011, senior management of Omnicare and PharMerica, and their respective financial and legal advisors discussed a process by which the parties would exchange confidential information in furtherance of the regulatory analysis of a possible business combination of the two companies and the terms upon which such confidential information would be exchanged.
In furtherance of such discussions, from early to mid-October, 2011, Omnicare and PharMerica exchanged drafts of a Confidentiality and Joint Defense Agreement (the “CA-JDA”), pursuant to which Omnicare and PharMerica would exchange confidential information, including information in furtherance of their respective regulatory analysis of a possible business combination. During the course of negotiations regarding the terms of the CA-JDA, the legal advisors to PharMerica stated that PharMerica would be willing to consider a CA-JDA containing substantially similar terms as those proposed by Omnicare, only after they had an opportunity to review the scope and content of Omnicare’s due diligence request list. Shortly thereafter, Omnicare and PharMerica exchanged due diligence request lists and negotiated the scope and content of such lists.
On October 18, 2011, Messrs. Figueroa and Weishar spoke telephonically to discuss the recent communications relating to the diligence request lists and agreed to hold a meeting on October 19, 2011 to further discuss the diligence request lists. At the October 19, 2011 meeting, the parties agreed to exchange certain limited information for purposes of their respective regulatory analysis of a possible business combination. Additionally, Mr. Weishar reaffirmed PharMerica’s position that, in addition to such information, PharMerica would require substantially all of the information specified in its due diligence request list, including Omnicare’s strategy for obtaining regulatory clearance of the proposed transaction. Mr. Figueroa stated that Omnicare would reconsider the items contained in PharMerica’s due diligence request list and propose a revised list that identifies those items of information that Omnicare would be willing to provide at this time in order to accommodate PharMerica.
On October 20, 2011 and October 21, 2011, Omnicare and PharMerica exchanged revised drafts, and negotiated the terms, of the CA-JDA, including the scope of information initially to be exchanged for purposes of their respective regulatory analysis.
On October 26, 2011, after further negotiations, Omnicare and PharMerica entered into a CA-JDA containing a list of limited information initially to be exchanged between them for purposes of their respective regulatory analysis and customary terms for agreements of this kind.”
ITEM 12.
Item 12 of the Schedule TO is hereby amended and supplemented to add the following exhibit:
(a)(5)(K) Press Release issued by Omnicare, Inc. on October 26, 2011.
SIGNATURE
After due inquiry and to the best of their knowledge and belief, the undersigned hereby certify as of October 26, 2011 that the information set forth in this statement is true, complete and correct.
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PHILADELPHIA ACQUISITION SUB, INC. | ||
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By: |
/s/ John G. Figueroa | |
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Name: |
John G. Figueroa |
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Title: |
President |
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OMNICARE, INC. | ||
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By: |
/s/ John G. Figueroa | |
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Name: |
John G. Figueroa |
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Title: |
Chief Executive Officer |
EXHIBIT INDEX
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Exhibit |
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No. |
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Description |
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(a)(1)(A) |
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Offer to Purchase, dated September 7, 2011.* |
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(a)(1)(B) |
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Letter of Transmittal.* |
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(a)(1)(C) |
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Notice of Guaranteed Delivery.* |
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(a)(1)(D) |
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees.* |
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(a)(1)(E) |
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Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees.* |
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(a)(1)(F) |
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Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.* |
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(a)(1)(G) |
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Summary Advertisement published on September 7, 2011.* |
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(a)(5)(A) |
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Press Release issued by Omnicare, Inc. on September 7, 2011 announcing the commencement of the Offer.* |
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(a)(5)(B) |
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Press Release issued by Omnicare, Inc. on August 23, 2011 (incorporated by reference to the Current Report on Form 8-K filed by Omnicare, Inc. with the Securities and Exchange Commission on August 23, 2011). |
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(a)(5)(C) |
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Press Release issued by Omnicare, Inc. on August 23, 2011 (incorporated by reference to the Schedule TO-C filed by Omnicare, Inc. with the Securities and Exchange Commission on August 24, 2011). |
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(a)(5)(D) |
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Press Release issued by Omnicare, Inc. on August 25, 2011 (incorporated by reference to the Schedule TO-C filed by Omnicare, Inc. with the Securities and Exchange Commission on August 25, 2011). |
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(a)(5)(E) |
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Excerpt of transcript of conference attended by Omnicare, Inc. on September 8, 2011.* |
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(a)(5)(F) |
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Investor Presentation dated September 2011.* |
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(a)(5)(G) |
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Press Release issued by Omnicare, Inc. on September 23, 2011.* |
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(a)(5)(H) |
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Letter from Omnicare, Inc. to the stockholders of PharMerica Corporation dated September 30, 2011.* |
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(a)(5)(I) |
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Press Release issued by Omnicare, Inc. on October 5, 2011.* |
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(a)(5)(J) |
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Excerpt of transcript of conference call held by Omnicare, Inc. on October 25, 2011 regarding Omnicare’s third quarter 2011 earnings release.* |
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(a)(5)(K) |
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Press Release issued by Omnicare, Inc. on October 26, 2011. |
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(b)(1) |
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Credit Agreement, dated August 24, 2011, by and among Omnicare, Inc., the lenders named therein, SunTrust Bank, as Administrative Agent, JP Morgan Chase Bank, N.A., as Syndication Agent and Barclays Bank PLC, Goldman Sachs Bank USA and Bank of America, N.A., as Co-Documentation Agents (incorporated by reference to the Current Report on Form 8-K filed by Omnicare, Inc. with the Securities and Exchange Commission on August 25, 2011). |
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(d) |
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Not applicable. |
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(g) |
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Not applicable. |
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(h) |
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Not applicable. |
* Previously filed.