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. 8)
GENTIUM S.p.A.
(Name of Subject Company (Issuer))
JAZZ PHARMACEUTICALS ITALY S.p.A.
JAZZ PHARMACEUTICALS PUBLIC LIMITED COMPANY
(Names of Filing Persons (Offerors))
Ordinary Shares, no par value per share
and
American Depositary Shares, each representing one Ordinary Share
(Title of Class of Securities)
The CUSIP number for the Ordinary Shares, which are not traded on U.S. markets, is 37250B922.
The CUSIP number for the related American Depositary Shares is 37250B104.
(CUSIP Number of Class of Securities)
Suzanne Sawochka Hooper, Esq.
Executive Vice President and General Counsel
Jazz Pharmaceuticals Public Limited Company
c/o Jazz Pharmaceuticals, Inc.
3180 Porter Drive
Palo Alto, California 94304
Tel: (650) 496-3777
Copy to:
Keith A. Flaum, Esq.
Jane Ross, Esq.
James R. Griffin, Esq.
Weil, Gotshal & Manges LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
(650) 802-3000
(Name, address, and telephone number of person authorized to receive notices and communications on behalf of filing persons)
CALCULATION OF FILING FEE
| Transaction Valuation* | Amount of Filing Fee** | |
| $1,011,728,625.00 | $130,310.65 | |
|
| ||
| * | For purposes of calculating the filing fee pursuant to Rule 0-11(d) only, the Transaction Valuation was calculated on the basis of (i) the aggregate of 17,749,625 Ordinary Shares, no par value per share, which includes (A) 10,984,130 Ordinary Shares represented by 10,984,130 American Depositary Shares outstanding, and (B) 2,194,494 Ordinary Shares not yet outstanding but underlying outstanding equity awards, in each case not owned by the Filing Persons, that may be purchased in the tender offer, and (ii) the tender offer price of $57.00 per Ordinary Share and per American Depositary Share. |
| ** | The amount of the filing fee, calculated in accordance with Rule 0-11 of the Exchange Act, and Fee Rate Advisory #1 for fiscal year 2014, issued August 30, 2013, is $128.80 per $1 million (prorated for amounts less than $1 million) of the aggregate Transaction Valuation. The filing fee is calculated by multiplying the transaction value by 0.0001288. |
| x | Check 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: $130,310.65 | Filing Party: Jazz Pharmaceuticals Italy S.p.A. (formerly known as Jazz Pharmaceuticals Italy S.r.l.) and Jazz Pharmaceuticals Public Limited Company | |
| Form or Registration Number: Schedule TO | Date Filed: December 23, 2013 |
| ¨ | 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. ¨
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| ¨ | Rule 13e–4(i) (Cross-Border Issuer Tender Offer) |
| ¨ | Rule 14d–1(d) (Cross-Border Third-Party Tender Offer) |
INTRODUCTORY STATEMENT
This Amendment No. 8 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (which, together with any amendments or supplements thereto, collectively constitute the “Schedule TO”) relating to the offer by Jazz Pharmaceuticals Italy S.p.A., an Italian società per azioni (formerly known as Jazz Pharmaceuticals Italy S.r.l., an Italian società a responsabilià limitata) (“Purchaser”) and a wholly-owned subsidiary of Jazz Pharmaceuticals Public Limited Company, a public limited company formed under the laws of Ireland (“Parent” or “Jazz Pharmaceuticals”), to purchase all outstanding shares of ordinary stock, no par value per share (the “Ordinary Shares”), and all outstanding American Depositary Shares, each representing one Ordinary Share and evidenced by an American Depositary Receipt (“ADR”) issued by The Bank of New York, as depositary (the “ADSs”) of Gentium S.p.A., a società per azioni incorporated in Italy (the “Company” or “Gentium”), at a purchase price of $57.00 per Ordinary Share and per ADS (without duplication for Ordinary Shares underlying ADSs), net to the seller 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 December 23, 2013 (which, together with any amendments or supplements thereto, collectively constitute the “Offer to Purchase”) and in the related ADS Letter of Transmittal (the “ADS Letter of Transmittal”) and Share Form of Acceptance (the “Share Form of Acceptance” and, together with the ADS Letter of Transmittal and Offer to Purchase, as amended or supplemented from time to time, the “Offer”), which are annexed to and filed with the Schedule TO as Exhibits (a)(1)(A), (a)(1)(B) and (a)(1)(G), respectively. The information set forth in the Offer to Purchase and the related ADS Letter of Transmittal and Share Form of Acceptance are incorporated by reference herein.
Capitalized terms used but not defined in this Amendment shall have the meanings assigned to such terms in the Schedule TO.
| Items 1-11. | Additional information. |
Items 1-11 of the Schedule TO are hereby amended and supplemented as follows:
At midnight, New York City time, on the evening of Wednesday, January 22, 2014, the initial offering period for the Offer expired as scheduled. The Tender Agent has advised Parent and Purchaser that, as of the Expiration Date, a total of 4,570,991 Ordinary Shares and 7,673,165 ADSs had been properly tendered and not withdrawn pursuant to the Offer, which properly tendered Ordinary Shares and ADSs represent approximately seventy-nine percent (79%) of the outstanding Ordinary Shares and ADSs in each case, and sixty-nine percent (69%) of the fully diluted Ordinary Shares and ADSs. All conditions to the Offer having been satisfied, Purchaser accepted for payment, and expects to promptly pay for, all Ordinary Shares and ADSs properly tendered and not validly withdrawn pursuant to the Offer.
The Tender Agent has also advised Parent and Purchaser that it has received commitments to tender 1,345,023 additional ADSs under the guaranteed delivery procedures described in the Offer, which, together with the Ordinary Shares and ADSs tendered as of midnight, New York City time, on the evening of Wednesday, January 22, 2014, represent approximately eighty-seven percent (87%) of the total outstanding Ordinary Shares and ADSs, collectively in each case, and seventy-seven percent (77%) of the fully diluted Ordinary Shares and ADSs.
Pursuant to the Tender Offer Agreement and in accordance with Rule 14d-11 of the Exchange Act, Purchaser has commenced a subsequent offering period of the Offer for all remaining Ordinary Shares and ADSs. The subsequent offering period will expire at 12:00 midnight, New York City time, on the evening of February 20, 2014, unless extended. All Ordinary Shares and ADSs properly tendered during the subsequent offering period will be accepted for payment, and tendering holders will thereafter promptly be paid the same Offer Price of $57.00 per Ordinary Share and per ADS (without duplication for Ordinary Shares underlying ADSs), as applicable, net to the seller in cash, without interest, less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase. The procedures for accepting the Offer and tendering Ordinary Shares and ADSs during the subsequent offering period are the same as those applicable to the initial offering period as described in the Offer to Purchase, except that Ordinary Shares and ADSs properly tendered during the subsequent offering period may not be withdrawn.
| Item 12. | Exhibits. |
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
| (a)(5)(N) | Press Release of Jazz Pharmaceuticals issued on January 23, 2014. | |
| (a)(5)(O) | Post-Closing Standby Statement for use by Jazz Pharmaceuticals. | |
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| JAZZ PHARMACEUTICALS PUBLIC LIMITED COMPANY | ||||
| By: | /s/ Suzanne Sawochka Hooper | |||
| Name: | Suzanne Sawochka Hooper | |||
| Title: | Executive Vice President and General Counsel | |||
| JAZZ PHARMACEUTICALS ITALY S.p.A. | ||||
| By: | /s/ Fintan Keegan | |||
| Name: | Fintan Keegan | |||
| Title: | Director | |||
Date: January 23, 2014
EXHIBIT LIST
| Exhibit |
Description | |
| (a)(1)(A) |
Offer to Purchase, dated December 23, 2013.* | |
| (a)(1)(B) |
Form of ADS Letter of Transmittal.* | |
| (a)(1)(C) |
Form of Notice of Guaranteed Delivery.* | |
| (a)(1)(D) |
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(E) |
Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(F) |
Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.* | |
| (a)(1)(G) |
Form of Share Form of Acceptance.* | |
| (a)(5)(A) |
Summary Advertisement as published in The Wall Street Journal on December 23, 2013.* | |
| (a)(5)(B) |
Joint Press Release of Jazz Pharmaceuticals and Gentium issued on December 19, 2013 (incorporated by reference to Exhibit 99.1 from the Schedule TO-C filed by Jazz Pharmaceuticals with the Securities and Exchange Commission on December 19, 2013). | |
| (a)(5)(C) |
Jazz Pharmaceuticals investor presentation first made available on December 19, 2013 (incorporated by reference to Exhibit 99.2 from the Schedule TO-C filed by Jazz Pharmaceuticals with the Securities and Exchange Commission on December 19, 2013). | |
| (a)(5)(D) |
Transcript from investor/analyst conference call held on December 19, 2013 (incorporated by reference to Exhibit 99.1 from the Schedule TO-C filed by Jazz Pharmaceuticals with the Securities and Exchange Commission on December 20, 2013). | |
| (a)(5)(E) |
Email from Jazz Pharmaceuticals’ Chief Executive Officer to employees, sent on December 19, 2013 (incorporated by reference to Exhibit 99.2 from the Schedule TO-C filed by Jazz Pharmaceuticals with the Securities and Exchange Commission on December 20, 2013). | |
| (a)(5)(F) |
Letter from Jazz Pharmaceuticals’ Chief Executive Officer to Gentium employees, sent on December 19, 2013 (incorporated by reference to Exhibit 99.3 from the Schedule TO-C filed by Jazz Pharmaceuticals with the Securities and Exchange Commission on December 20, 2013). | |
| (a)(5)(G) |
Media Standby Statement, first used on December 19, 2013 (incorporated by reference to Exhibit 99.4 from the Schedule TO-C filed by Jazz Pharmaceuticals with the Securities and Exchange Commission on December 20, 2013). | |
| (a)(5)(H) |
Gentium Transaction Internal Communications Q&A, first used on December 19, 2013 (incorporated by reference to Exhibit 99.5 from the Schedule TO-C filed by Jazz Pharmaceuticals with the Securities and Exchange Commission on December 20, 2013). | |
| (a)(5)(I) |
Jazz Pharmaceuticals Overview Presentation, first used on December 20, 2013 (incorporated by reference to Exhibit 99.6 from the Schedule TO-C filed by Jazz Pharmaceuticals with the Securities and Exchange Commission on December 20, 2013). | |
| (a)(5)(J) |
Portion of transcript from Jazz Pharmaceuticals conference call to discuss acquisition of rights to ADX-N05 from Aerial BioPharma, LLC held on January 13, 2014.* | |
| (a)(5)(K) |
Jazz Pharmaceuticals investor presentation, first used at the J.P. Morgan Healthcare Conference in San Francisco, California on January 13, 2014.* | |
| (a)(5)(L) |
Portion of transcript of oral presentation by Jazz Pharmaceuticals at the J.P. Morgan Healthcare Conference in San Francisco, California on January 13, 2014.* | |
| (a)(5)(M) |
Complaint captioned Xavion Jyles, Individually and on Behalf of All Others Similarly Situated v. Gentium S.P.A. et al, filed on or about January 15, 2014, in the United States District Court for the Southern District of New York.* | |
| (a)(5)(N) |
Press Release of Jazz Pharmaceuticals issued on January 23, 2014.** | |
| (a)(5)(O) |
Post-Closing Standby Statement for use by Jazz Pharmaceuticals.** | |
| (b)(1) |
Amended and Restated Commitment Letter, dated as of January 6, 2014, by and between Jazz Pharmaceuticals plc, Barclays Bank PLC, J.P. Morgan Securities LLC, JPMorgan Chase Bank, N.A., Merrill Lynch Pierce, Fenner & Smith Incorporated, Bank of America, N.A., Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc., Royal Bank of Canada, DNB Bank ASA and DNB Capital Markets, Inc.* | |
| (b)(2) |
Amendment No. 1, dated as of June 13, 2013, to the Original Credit Agreement and related Guaranty, by and among Jazz Pharmaceuticals, Inc., Jazz Financing I Limited and Purchaser, as borrowers, Jazz Pharmaceuticals, as guarantor, the Lenders thereto and Barclays Bank PLC, as Administrative Agent, Collateral Agent, L/C Issuer and Swing Line Lender (incorporated by reference to Exhibit 10.1 from the Form 8-K filed by Jazz Pharmaceuticals with the Securities and Exchange Commission on June 13, 2013). | |
| (d)(1) |
Tender Offer Agreement, dated as of December 19, 2013, by and among Jazz Pharmaceuticals, Gentium and Purchaser (incorporated by reference to Exhibit 2.1 from the Form 8-K/A filed by Jazz Pharmaceuticals with the Securities and Exchange Commission on December 20, 2013). | |
| (d)(2) |
Form of Support Agreement (incorporated by reference to Exhibit 99.3 from the Form 8-K/A filed by Jazz Pharmaceuticals with the Securities and Exchange Commission on December 20, 2013). | |
| (d)(3) |
Form of Transition, Amendment and Release Agreement.* | |
| (d)(4) |
Form of Consultancy Agreement.* | |
| (d)(5) |
Form of Retention and Amendment Agreement.* | |
| (d)(6) |
Confidentiality and Nondisclosure Agreement, entered into effective September 30, 2013, by and between Jazz Pharmaceuticals and Gentium.* | |
| * | Previously filed. |
| ** | Filed herewith. |
Exhibit (a)(5)(N)
JAZZ PHARMACEUTICALS PLC ANNOUNCES MINIMUM TENDER CONDITION
EXCEEDED DURING INITIAL OFFERING PERIOD FOR GENTIUM S.p.A SHARES
Approximately 79 percent of outstanding Gentium ordinary shares and American Depositary Shares tendered
Subsequent offering period commenced to permit additional shares to be tendered
DUBLIN, January 23, 2014 — Jazz Pharmaceuticals plc (Nasdaq: JAZZ) today announced that the initial offering period in the tender offer made by a subsidiary of Jazz Pharmaceuticals to purchase all outstanding ordinary shares and American Depositary Shares (“ADSs”) of Gentium S.p.A. (Nasdaq: GENT) for $57.00 per share and per ADS (without duplication for ordinary shares underlying ADSs) in cash expired at midnight, New York City time, on the evening of January 22, 2014.
The tender agent for the tender offer has advised Jazz Pharmaceuticals that, as of the expiration of the initial offering period, 12,244,156 Gentium ordinary shares and ADSs were properly tendered and not withdrawn in the tender offer. These ordinary shares and ADSs represent approximately 79 percent of Gentium’s issued and outstanding ordinary shares and ADSs and 69 percent of the fully diluted number of ordinary shares and ADSs (in each case without duplication for ordinary shares underlying ADSs). All properly tendered ordinary shares and ADSs have been accepted for payment, which will be made in accordance with the terms of the tender offer. Upon payment for the properly tendered ordinary shares and ADSs, Jazz Pharmaceuticals will become the indirect majority shareholder of Gentium. In addition, 1,345,023 ADSs have been committed to tender in accordance with the guaranteed delivery procedures contemplated by the Offer, and options to acquire 1,666,608 ordinary shares of Gentium are subject to support agreements requiring that such options be exercised and the underlying ordinary shares be tendered into a subsequent offering period. These ADSs and ordinary shares and the ordinary shares and ADSs that have been accepted for payment represent in the aggregate approximately 86 percent of the fully diluted number of ordinary shares and ADSs of Gentium (without duplication for ordinary shares underlying ADSs).
Jazz Pharmaceuticals today also announced that its subsidiary has commenced a subsequent offering period to acquire the remaining ordinary shares and ADSs of Gentium. The subsequent offering period will expire at 12:00 midnight, New York City time, on the evening of Thursday, February, 20, 2014, unless extended. During this subsequent offering period, holders of Gentium ordinary shares and ADSs who did not previously properly tender their ordinary shares and ADS into the tender offer may do so, and Jazz Pharmaceuticals will promptly purchase any ordinary shares and ADSs properly tendered for the same consideration per share and per ADS (without duplication for shares underlying ADSs), as applicable, as paid in the initial offering period, net to the seller in cash, without interest and less any applicable withholding taxes. The procedures for tendering ordinary shares and ADSs during the subsequent offering period are the same as those applicable to the initial offering period as described in the offer to purchase, except that ordinary shares and ADSs properly tendered during the subsequent offering period may not be withdrawn.
Financing
To finance this transaction, Jazz Pharmaceuticals has entered into an amendment to its senior secured credit facility providing for $350 million of incremental term loans, the repricing of its
$554 million term loan (via replacement of the existing term loan with a new term loan) and a $425 million revolving credit facility. As a result of the repricing, the interest rate margin on the existing term loan was reduced by 25 basis points and the entire term loan currently bears interest at a floating rate of 3.25%. In connection with the acquisition of Gentium, Jazz Pharmaceuticals expects to fully utilize the incremental term loans and initially borrow $300 million of the total $425 million revolving credit facility.
About Jazz Pharmaceuticals
Jazz Pharmaceuticals plc is a specialty biopharmaceutical company focused on improving patients’ lives by identifying, developing and commercializing innovative products that address unmet medical needs. The company has a diverse portfolio of products in the areas of narcolepsy, oncology, pain and psychiatry. The company’s U.S. marketed products in these areas include: Xyrem® (sodium oxybate) oral solution, Erwinaze® (asparaginase Erwinia chrysanthemi), Prialt® (ziconotide) intrathecal infusion, FazaClo® (clozapine, USP) HD and FazaClo LD. Outside of the U.S., Jazz Pharmaceuticals also has a number of products marketed by its EUSA Pharma division including Erwinase®. For further information, see www.jazzpharmaceuticals.com.
About Gentium S.p.A.
Gentium S.p.A., located in Como, Italy, is a biopharmaceutical company focused on the development and manufacturing of drugs to treat and prevent a variety of diseases and conditions, including vascular diseases related to cancer and cancer treatments. Defibrotide, the Company’s lead product candidate, has been granted Orphan Drug status by the U.S. Food and Drug Administration (FDA), by the European Medicines Agency, by the Korean Ministry of Food and Drug Safety (MFDS), both to treat and to prevent VOD, by the Commonwealth of Australia-Department of Health for the treatment of VOD and Fast Track Designation by the U.S. FDA to treat VOD. In October 2013, the European Commission granted Marketing Authorization for Defitelio™ (defibrotide) for the treatment of severe VOD in adults and children undergoing hematopoietic stem cell transplantation therapy. In November 2013, the EU granted Orphan Drug Designation for defibrotide for the prevention of Graft versus Host Disease (GvHD). For additional information about Gentium and Defitelio, please visit www.gentium.com.
“Safe Harbor” Statement under the Private Securities Litigation Reform Act of 1995
This press release contains forward-looking statements regarding Jazz Pharmaceuticals and Gentium, including, but not limited to, statements related to the anticipated payment for the ordinary shares and ADSs that have been accepted for payment and the subsequent offering period for Gentium ordinary shares and American Depositary Shares, including the timing thereof, as well as other statements that are not historical facts. These forward-looking statements are based on each of the companies’ current expectations and inherently involve significant risks and uncertainties. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of these risks and uncertainties, including risks related to the funding of the financing described in this press release and those risks detailed under the caption “Risk Factors” and elsewhere in Jazz Pharmaceuticals’ and Gentium’s U.S. Securities and Exchange Commission (“SEC”) filings and reports, including in Jazz Pharmaceuticals’ Quarterly Report on Form 10-Q for the quarter ended September 30, 2013 and Gentium’s Annual Report on Form 20-F for the year ended December 31, 2012, each of which is filed with the SEC, and future filings and reports by either company. Neither Jazz Pharmaceuticals nor Gentium undertakes any duty or obligation to update any forward-looking statements contained in this press release as a result of new information, future events or changes in its expectations.
Additional Information and Where to Find It
This press release is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell the outstanding ordinary shares and ADSs of Gentium. Jazz Pharmaceuticals and its acquisition subsidiary have filed with the SEC a tender offer statement on Schedule TO, and Gentium has filed a Solicitation/Recommendation Statement on Schedule 14D-9, each as subsequently amended and with respect to the Offer (as defined in those documents). Holders of ordinary shares and ADSs of Gentium are urged to carefully read the relevant tender offer materials (including the Offer to Purchase, the related Share Form of Acceptance and Letter of Transmittal and the other tender offer documents) and the Solicitation/Recommendation Statement of Gentium because they contain important information that such holders should consider before making any decision regarding tendering their securities. The Offer to Purchase, the related Share Form of Acceptance and Letter of Transmittal and the other tender offer documents, as well as the Solicitation/Recommendation Statement of Gentium, are available to all holders of ordinary shares and ADSs of Gentium at no expense to them. Investors and security holders may obtain free copies of these documents and other related documents filed with the SEC at the SEC’s web site at www.sec.gov or by (i) directing a request to Jazz Pharmaceuticals plc, c/o Jazz Pharmaceuticals, Inc., 3180 Porter Drive, Palo Alto, California 94304, U.S.A., Attention: Investor Relations, (ii) calling +353 1 634 7892 (Ireland) or +1 650 496 2800 (U.S.) or (iii) sending an email to investorinfo@jazzpharma.com. Investors and security holders may also obtain free copies of the documents filed with the SEC on Jazz Pharmaceuticals’ website at www.jazzpharmaceuticals.com under the heading “Investors” and then under the heading “SEC Filings.”
In addition to the Offer to Purchase, the related Share Form of Acceptance and Letter of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement of Gentium, Jazz Pharmaceuticals and Gentium file annual, quarterly (except in the case of Gentium) and special reports and other information with the SEC. You may read and copy any reports or other information filed by Jazz Pharmaceuticals or Gentium at the SEC public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the Commission at 1-800-SEC-0330 for further information on the public reference room. Jazz Pharmaceuticals’ and Gentium’s filings with the SEC are also available to the public from commercial document-retrieval services and at the website maintained by the SEC at www.sec.gov.
SOURCE Jazz Pharmaceuticals plc
Contact Information
Jazz Pharmaceuticals plc
Investors
Kathee Littrell
Vice President, Investor Relations
Jazz Pharmaceuticals plc
Ireland, + 353 1 634 7887
U.S., + 1 650 496 2717
Media
Laurie Hurley
Vice President, Corporate Affairs
Jazz Pharmaceuticals plc
Ireland, + 353 1 634 7894
U.S., + 1 650 496 2796
Gentium S.p.A.,
Salvatore Calabrese
Senior Vice President Finance, COO/CFO
+39 031 5373 260
scalabrese@gentium.it
The Trout Group
Chelsea Wheeler
+1 646 378 2941
cwheeler@troutgroup.com
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Exhibit (a)(5)(O)
Post-Closing Standby Statement
Jazz Pharmaceuticals’ current objective is to acquire all of the Gentium Ordinary Shares and ADSs. While the initial tender offer period has expired, we are providing a “subsequent offering period” until 12:00 Midnight, New York City time, on the evening of February 20, 2014. During this period, holders may tender their Ordinary Shares and ADSs and receive the tender offer consideration promptly on the same terms as in the initial tender offer period, except there are no conditions to our purchase of Ordinary Shares and ADSs that are validly tendered during the subsequent offering period. We strongly encourage all holders who have not yet tendered their Ordinary Shares or ADSs to tender in the subsequent offering period to ensure liquidity for their Gentium equity.
We encourage any holders of Ordinary Shares or ADSs who have not yet decided to tender in the subsequent offering period to read our tender offer documents available in the EDGAR section of the SEC website as SC TO-T or SC TO-T/A filings to better understand the implications of this decision.
We have not made any determination whether, or by what means, we would seek to purchase any outstanding Ordinary Shares and ADSs following the completion of the subsequent offering period, or the timing of any additional purchases. If we determine that it continues to be in our best interest to purchase any remaining outstanding Ordinary Shares and ADSs, we will determine the timing and approach to be used after the completion of the subsequent offering period based in part on the number of Ordinary Shares and ADSs that remain outstanding. Our tender offer documents describe some of the methods we might use. We have not determined any percentage or other thresholds that would result in us deciding to pursue the acquisition of any remaining outstanding Ordinary Shares and ADSs, the method we would use, or the timing. If we choose to acquire any remaining outstanding equity interests of Gentium following the completion of the subsequent offering period, the purchases may be made at prices higher or lower than the Offer Price.
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“Safe Harbor” Statement under the Private Securities Litigation Reform Act of 1995
This statement contains forward-looking statements regarding Jazz Pharmaceuticals and Gentium, including, but not limited to, statements related to the subsequent offering period for Gentium Ordinary Shares and American Depositary Shares and the timing thereof, as well as other statements that are not historical facts. These forward-looking statements are based on each of the companies’ current expectations and inherently involve significant risks and uncertainties. Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of these risks and uncertainties, including risks related to the purchase of Ordinary Shares and American Depositary Shares in the subsequent offering period and those risks detailed under the caption “Risk Factors” and elsewhere in Jazz Pharmaceuticals’ and Gentium’s U.S. Securities and Exchange Commission (“SEC”) filings and reports, including in Jazz Pharmaceuticals’ Quarterly Report on Form 10-Q for the quarter ended September 30, 2013 and Gentium’s Annual Report on Form 20-F for the year ended December 31, 2012, each of
which is filed with the SEC, and future filings and reports by either company. Neither Jazz Pharmaceuticals nor Gentium undertakes any duty or obligation to update any forward-looking statements contained in this statement as a result of new information, future events or changes in its expectations.
Additional Information and Where to Find It
This statement is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell the outstanding shares of Gentium S.p.A. (including those shares represented by American Depositary Shares). Jazz Pharmaceuticals plc and its acquisition subsidiary have filed with the SEC a tender offer statement on Schedule TO, and Gentium has filed a Solicitation/Recommendation Statement on Schedule 14D-9, each as subsequently amended and with respect to the Offer (as defined in those documents). Holders of shares of Gentium are urged to carefully read the relevant tender offer materials (including the Offer to Purchase, the related Letter of Transmittal and the other tender offer documents) and the Solicitation/Recommendation Statement because they contain important information that such holders should consider before making any decision regarding tendering their securities. The Offer to Purchase, the related Letter of Transmittal and the other tender offer documents, as well as the Solicitation/Recommendation Statement, are available to all holders of shares of Gentium at no expense to them. Investors and security holders may obtain free copies of these documents and other related documents filed with the SEC at the SEC’s web site at www.sec.gov or by (i) directing a request to Jazz Pharmaceuticals plc, c/o Jazz Pharmaceuticals, Inc., 3180 Porter Drive, Palo Alto, California 94304, U.S.A., Attention: Investor Relations, (ii) calling +353 1 634 7892 (Ireland) or +1 650 496 2800 (U.S.) or (iii) sending an email to investorinfo@jazzpharma.com. Investors and security holders may also obtain free copies of the documents filed with the SEC on Jazz Pharmaceuticals’ website at www.jazzpharmaceuticals.com under the heading “Investors” and then under the heading “SEC Filings.”
In addition to the Offer to Purchase, the related Letter of Transmittal and the other tender offer documents, as well as the Solicitation/Recommendation Statement, Jazz Pharmaceuticals and Gentium file annual, quarterly (except in the case of Gentium) and special reports and other information with the SEC. You may read and copy any reports or other information filed by Jazz Pharmaceuticals or Gentium at the SEC 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. Jazz Pharmaceuticals’ and Gentium’s filings with the SEC are also available to the public from commercial document-retrieval services and at the website maintained by the SEC at www.sec.gov.
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