UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
Tender Offer Statement under
Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 3)
CHATTEM, INC.
(Name of Subject Company (Issuer))
RIVER ACQUISITION CORP.
SANOFI-AVENTIS
SANOFI-AVENTIS AMERIQUE DU NORD S.N.C.
AVENTIS INC.
(Offerors)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, without par value (including the associated
Series A Junior Participating Preferred Stock Purchase Rights)
(Title of Class of Securities)
162456107
(CUSIP Number of Class of Securities)
Karen
Linehan
Senior Vice President Legal Affairs and General Counsel
Sanofi-Aventis
174, avenue de France
75013 Paris, France
Telephone: +33 1 53 77 40 00
(Name,
address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copy to:
Michael J. Aiello, Esq.
Weil, Gotshal & Manges LLP
767 Fifth
Avenue
New York, NY 10153
(212) 310-8000
CALCULATION OF FILING FEE
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Transaction Valuation(1)
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Amount of Filing Fee(2)
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$2,264,563,268
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$161,464
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(1)
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Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by adding the sum of (i) 18,934,034 shares of common stock,
without par value, of Chattem, Inc. (“Chattem”) outstanding multiplied by the offer price of $93.50 per share, (ii) 1,798,116 shares of common stock, without par value, of Chattem, which were subject to issuance pursuant to the
exercise of outstanding options multiplied by the offer price of $93.50 per share and (iii) 3,487,778 shares of common stock, without par value, of Chattem, which were reserved for issuance upon the exercise of warrants, multiplied by the offer
price of $93.50 per share. This calculation excludes 4,367,275 shares of common stock, without par value, of Chattem, reserved for issuance upon conversion of the 2% convertible notes of Chattem due 2013 and the 1.625% convertible notes of Chattem
due 2014 because the convertible notes will be settled in cash pursuant to the Agreement and Plan of Merger, dated as of December 20, 2009, among sanofi-aventis, River Acquisition Corp. and Chattem. The calculation of the filing fee is based on
Chattem’s representation of its capitalization as of December 18, 2009.
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(2)
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The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934 by multiplying the transaction value by 0.00007130.
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þ
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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: $161,464
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Filing Party: sanofi-aventis
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Form of Registration No.: Schedule TO
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Date Filed: January 11, 2010
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¨
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
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Third-party tender offer subject to Rule 14d-1.
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Issuer tender offer subject to Rule 13e-4.
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Going-private transaction subject to Rule 13e-3.
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¨
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Amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender offer.
þ
This Amendment No. 3 (this “Amendment”) amends and supplements the Tender
Offer Statement on Schedule TO filed with the U.S. Securities and Exchange Commission (the “SEC”) on January 11, 2010, as amended by Amendment No. 1 filed on January 26, 2010 and Amendment No. 2 filed on
January 28, 2010 (as amended and supplemented, the “Schedule TO”) and is filed by (i) River Acquisition Corp., a Tennessee corporation (the “Purchaser”), and a direct wholly-owned subsidiary of Aventis Inc., a
Pennsylvania corporation (“Aventis”) and an indirect wholly-owned subsidiary of sanofi-aventis, a French
société anonyme
(“Parent”), (ii) Parent, (iii) Sanofi-aventis Amérique du Nord S.N.C.,
a French
société en nom collectif
(“ADN”), and a wholly-owned subsidiary of Parent and (iv) Aventis, a wholly-owned subsidiary of ADN. The Schedule TO relates to the offer by the Purchaser to purchase all of
the outstanding shares of common stock, without par value (including the associated preferred stock purchase rights, the “Shares”), of Chattem, Inc., a Tennessee corporation (“Chattem”), at a purchase price of $93.50 per Share
(the “Offer Price”) net to the sellers in cash, without interest thereon and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated January 11, 2010 (which, together
with any amendments and supplements thereto, collectively constitute the “Offer to Purchase”) and in the related Letter of Transmittal, copies of which are attached to the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively
(which, together with the Offer to Purchase, as each may be amended or supplemented from time to time, collectively constitute the “Offer”). The Offer is made pursuant to the Agreement and Plan of Merger, dated as of December 20,
2009, among Parent, the Purchaser and Chattem.
Documentation relating to the Offer has been mailed to Chattem shareholders
and may be obtained at no charge at the website maintained by the SEC at www.sec.gov and may also be obtained at no charge by directing a request by mail to MacKenzie Partners, Inc., 105 Madison Avenue, New York, New York 10016, or by calling
toll-free at (800) 322-2885.
All information set forth in the Offer to Purchase and the related Letter of Transmittal is
incorporated by reference in answer to Items 1 through 12 in the Schedule TO, except those items as to which information is specifically provided herein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed
to such terms in the Offer to Purchase.
Item 11.
Item 11 of the Schedule TO is amended and supplemented by adding the following text to such Item:
“The Offer and withdrawal rights expired at 12:00 midnight, New York City time, on Monday,
February 8, 2010. The Depositary has advised that, as of the expiration time, an aggregate of approximately 18,611,072 Shares (including approximately 2,853,283 Shares subject to guarantees of delivery) were validly tendered and not withdrawn,
representing approximately 89.8% of the total Shares on a fully-diluted basis (as defined in the Merger Agreement). Therefore, the Minimum Condition has been satisfied. All Shares that were validly tendered and not validly withdrawn have been
accepted for purchase by the Purchaser. The Purchaser will promptly pay for such Shares in accordance with the terms of the Offer.
Parent intends to effect a short-form merger under Tennessee law after exercising the Top-Up Option and, as a result, Chattem will become an indirect, wholly-owned subsidiary of Parent.
As a result of the Merger, any Shares not tendered in the Offer (other than Shares held by (i) Chattem,
Parent or any subsidiary of Parent, including the Purchaser, which Shares will be cancelled without any conversion, or (ii) any subsidiary of Chattem, which Shares will remain outstanding) will be cancelled and converted into the right to
receive the same $93.50 in cash per Share, without interest thereon and less any required withholding taxes, that was paid in the Offer.
Following the Merger, the Shares will cease to be traded on the NASDAQ Global Select Market.
The full text of the press release issued by Parent announcing the completion of the Offer is attached hereto as Exhibit (a)(5)(J) and is incorporated herein by reference.”
Item
12.
Exhibits.
Item 12 of the Schedule TO is hereby amended by adding the following exhibit thereto:
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Exhibit
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Exhibit Name
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(a)(5)(J)
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Press Release issued by sanofi-aventis on February 9, 2010.
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SIGNATURE
After due inquiry and to the best of the knowledge and belief of each of the undersigned, each of the undersigned hereby certifies that the
information set forth in this statement is true, complete and correct.
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SANOFI-AVENTIS
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By:
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/s/ J
ÉRÔME
C
ONTAMINE
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Name:
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Jérôme Contamine
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Title:
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Executive Vice President, Chief Financial Officer
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RIVER ACQUISITION CORP.
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By:
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/s/ G
REGORY
I
RACE
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Name:
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Gregory Irace
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Title:
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Chief Executive Officer and President
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SANOFI-AVENTIS AMÉRIQUE DU NORD S.N.C.
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By:
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/s/ J
EAN
-L
UC
R
ENARD
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Name:
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Jean-Luc Renard
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Title:
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Manager
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AVENTIS INC.
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By:
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/s/ J
OHN
S
PINNATO
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Name:
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John Spinnato
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Title:
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Authorized Signatory
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Date: February 9, 2010
EXHIBIT INDEX
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Exhibit
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Exhibit Name
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(a)(1)(A)
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Offer to Purchase dated January 11, 2010.*
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(a)(1)(B)
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Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number (TIN) on Substitute Form W-9).*
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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)(5)(A)
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Joint Press Release issued by sanofi-aventis and Chattem, Inc. on December 21, 2009, incorporated herein by reference to Exhibit 99.1 to the Schedule TO-C filed by
sanofi-aventis on December 21, 2009.*
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(a)(5)(B)
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Sanofi-aventis presentation for investor/analyst conference call, dated December 21, 2009, incorporated herein by reference to Exhibit 99.2 to the Schedule TO-C filed by
sanofi-aventis on December 21, 2009.*
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(a)(5)(C)
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Presentation regarding sanofi-aventis, dated December 21, 2009, incorporated herein by reference to Exhibit 99.3 to the Schedule TO-C filed by sanofi-aventis on December 21, 2009.*
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(a)(5)(D)
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Presentation regarding Chattem, Inc., dated December 21, 2009, incorporated herein by reference to Exhibit 99.4 to the Schedule TO-C filed by sanofi-aventis on December 21, 2009.*
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(a)(5)(E)
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Transcript of sanofi-aventis conference call held on December 21, 2009, incorporated herein by reference to Exhibit 99.1 to the Schedule TO-C filed by sanofi-aventis on December 22,
2009.*
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(a)(5)(F)
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Transcript of Chattem, Inc. conference call held on December 21, 2009, incorporated herein by reference to Exhibit 99.2 to the Schedule TO-C filed by sanofi-aventis on December 22,
2009.*
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(a)(5)(G)
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Form of Summary Advertisement as published on January 11, 2010 in The Wall Street Journal.*
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(a)(5)(H)
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Press Release issued by sanofi-aventis and Chattem, Inc. on January 11, 2010.*
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(a)(5)(I)
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Press Release issued by sanofi-aventis on January 26, 2010.*
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(a)(5)(J)
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Press Release issued by sanofi-aventis on February 9, 2010.**
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(b)
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Not applicable.
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(d)(1)
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Agreement and Plan of Merger, dated as of December 20, 2009, among sanofi-aventis, River Acquisition Corp. and Chattem, Inc.*
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(d)(2)
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Confidentiality Agreement, dated November 23, 2009, between Chattem, Inc. and sanofi-aventis.*
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(d)(3)
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Form of Retention Agreement, dated December 20, 2009, by and between sanofi-aventis and each of Zan Guerry and Robert E. Bosworth.*
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(d)(4)
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Form of Retention Agreement, dated December 20, 2009, by and between sanofi-aventis and each of Robert B. Long and Theodore K. Whitfield, Jr.*
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(g)
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Not applicable.
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(h)
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Not applicable.
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Grafico Azioni Chattem, Inc. (MM) (NASDAQ:CHTT)
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