This Amendment No. 3 to Schedule 13D is filed by (i) Deerfield Mgmt, L.P. (formerly named Deerfield Capital, L.P.) (“
Deerfield Mgmt
”), (ii) Deerfield Special Situations Fund, L.P. (“
Deerfield Special Situations Fund
”), (iii) Deerfield Private Design Fund II, L.P. (“
Deerfield Private Design II
”), (iv) Deerfield Private Design International II, L.P. (“
Deerfield Private Design International II
”), (v) Deerfield Management Company, L.P. (“
Deerfield Management
”), (vi) Deerfield Special Situations International Master Fund, L.P. (“
Deerfield Special Situations Master
”), (vii) Breaking Stick Holdings, LLC (“
Breaking Stick
”) and (viii) James E. Flynn, a natural person (“
Flynn
” and collectively with Deerfield Mgmt, Deerfield Special Situations Fund, Deerfield Private Design II, Deerfield Private Design International II, Deerfield Management, Deerfield Special Situations Master and Breaking Stick, the “
Reporting Persons
”), and amends the Schedule 13D filed on December 5, 2011, as amended by Amendment Nos. 1 and 2 filed on January 4, 2012 and March 15, 2012, respectively. Only those items hereby reported in this Amendment No. 3 are amended and all other items remain unchanged. Terms used herein but not otherwise defined herein shall have the meanings ascribed thereto in the Schedule 13D, as amended to date.
Item 2. Identity and Background.
Items 2(b), 2(c) and 2(f) of the Schedule 13D are amended and restated to read as follows:
(b)
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The address of the principal business and/or principal office of Deerfield Mgmt, Deerfield Special Situations Fund, Deerfield Management, Deerfield Private Design II, Deerfield Private Design International II, Deerfield Special Situations Master, Breaking Stick and Flynn is 780 Third Avenue, 37th Floor, New York, New York 10017.
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(c)
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Flynn is the sole member of the general partner of each of Deerfield Mgmt and Deerfield Management. Deerfield Mgmt is the general partner of Deerfield Special Situations Fund, Deerfield Private Design II, Deerfield Private Design International II and Deerfield Special Situations Master (the “
Deerfield Funds
”) and of other affiliated funds. Deerfield Management is the investment advisor to the Deerfield Funds and to other affiliated funds and the manager of Breaking Stick. Deerfield Private Design II and Deerfield Private Design International II are members of Breaking Stick. Breaking Stick (formerly named Éclat Holdings, LLC) is an entity formed for the purpose of holding the membership interests of Éclat Pharmaceuticals, LLC, which interests were sold to the Company on March 13, 2012. The Deerfield Funds purchase, hold and sell securities and other investment products. Schedule A hereto sets forth information regarding persons referred in Instruction C to Schedule 13D.
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(f)
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Deerfield Mgmt, Deerfield Special Situations Fund, Deerfield Management, Deerfield Private Design II and Breaking Stick are each organized under the laws of Delaware. Deerfield Special Situations Master and Deerfield Private Design International II are each organized under the laws of the British Virgin Islands. Flynn is a citizen of the United States of America.
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Item 4. Purpose of Transaction.
Item 4 of the Schedule 13D is amended to include the following:
As of September 5, 2012, the conditions to the issuance of the “bons de souscription d’actions” (“
BSA
”) in respect of the exercisability of the Warrants held by Breaking Stick were fully satisfied. Accordingly, in accordance with the terms of the Warrants, the Warrants are now exercisable, at the option of the holder, into American Depositary Shares.
Item 5. Interest in Securities of the Issuer.
Items 5(a) and 5(b) of the Schedule 13D are amended and restated to read as follows:
(a)
Number of shares: 7,633,475
Percentage of shares: 19.985%
Number of shares: 7,633,475
Percentage of shares: 19.985%
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(3)
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Deerfield Special Situations Fund
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Number of shares: 532,712
Percentage of shares: 2.13%
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(4)
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Deerfield Private Design II
**
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Number of shares: 4,732,534
Percentage of shares: 16.75%
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(5)
|
Deerfield Private Design International II
**
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Number of shares: 4,941,574
Percentage of shares: 17.48%
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(6)
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Deerfield Management
**
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Number of shares: 7,633,475
Percentage of shares: 19.985%
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(7)
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Deerfield Special Situations Master
|
Number of shares: 726,655
Percentage of shares: 2.91%
Number of shares: 3,300,000
Percentage of shares: 11.68%
Number of shares: 7,633,475
Percentage of shares: 19.985%
(b)
Sole power to vote or direct the vote: 0
Shared power to vote or direct the vote: 7,633,475
Sole power to dispose or to direct the disposition: 0
Shared power to dispose or direct the disposition: 7,633,475
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(2)
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Deerfield Special Situations Fund
|
Sole power to vote or direct the vote: 0
Shared power to vote or direct the vote: 532,712
Sole power to dispose or to direct the disposition: 0
Shared power to dispose or direct the disposition: 532,712
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(3)
|
Deerfield Private Design II
**
|
Sole power to vote or direct the vote: 0
Shared power to vote or direct the vote: 4,732,534
Sole power to dispose or to direct the disposition: 0
Shared power to dispose or direct the disposition: 4,732,534
|
(4)
|
Deerfield Private Design International II
**
|
Sole power to vote or direct the vote: 0
Shared power to vote or direct the vote: 4,941,574
Sole power to dispose or to direct the disposition: 0
Shared power to dispose or direct the disposition: 4,941,574
|
(5)
|
Deerfield Management
**
|
Sole power to vote or direct the vote: 0
Shared power to vote or direct the vote: 7,633,475
Sole power to dispose or to direct the disposition: 0
Shared power to dispose or direct the disposition: 7,633,475
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(6)
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Deerfield Special Situations Master
|
Sole power to vote or direct the vote: 0
Shared power to vote or direct the vote: 726,655
Sole power to dispose or to direct the disposition: 0
Shared power to dispose or direct the disposition: 726,655
Sole power to vote or direct the vote: 0
Shared power to vote or direct the vote: 3,300,000
Sole power to dispose or to direct the disposition: 0
Shared power to dispose or direct the disposition: 3,300,000
Sole power to vote or direct the vote: 0
Shared power to vote or direct the vote: 7,633,475
Sole power to dispose or to direct the disposition: 0
Shared power to dispose or direct the disposition: 7,633,475
Flynn is the sole member of the general partner of each of Deerfield Mgmt and Deerfield Management. Deerfield Mgmt is the general partner of Deerfield Special Situations Fund, Deerfield Private Design II, Deerfield Private Design International II and Deerfield Special Situations Master. Deerfield Management is the investment advisor of Deerfield Special Situations Fund, Deerfield Private Design II, Deerfield Private Design International II and Deerfield Special Situations Master, and is the manager of Breaking Stick.
**See footnotes on cover pages which are incorporated by reference herein.
Item 7.
Material to be Filed as Exhibits.
Item 7 of the Schedule 13D is amended to include the following:
Exhibit 99.6 Joint Filing Agreement dated as of September 7, 2012 by and among the Reporting Persons.*
SIGNATURE
After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
Dated: September 7, 2012
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DEERFIELD MGMT, L.P.
By: J.E. Flynn Capital LLC, General Partner
By:
/s/ Jonathan Isler
Name: Jonathan Isler
Title: Attorney-in-Fact*
DEERFIELD SPECIAL SITUATIONS FUND, L.P.
By: Deerfield Mgmt, L.P., General Partner
By: J.E. Flynn Capital LLC, General Partner
By:
/s/ Jonathan Isler
Name: Jonathan Isler
Title: Attorney-in-Fact*
DEERFIELD PRIVATE DESIGN FUND II, L.P.
By: Deerfield Mgmt, L.P., General Partner
By: J.E. Flynn Capital LLC, General Partner
By:
/s/ Jonathan Isler
Name: Jonathan Isler
Title: Attorney-in-Fact*
DEERFIELD PRIVATE DESIGN INTERNATIONAL II, L.P.
By: Deerfield Mgmt, L.P., General Partner
By: J.E. Flynn Capital LLC, General Partner
By:
/s/ Jonathan Isler
Name: Jonathan Isler
Title: Attorney-in-Fact*
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DEERFIELD MANAGEMENT COMPANY, L.P.
By: Flynn Management LLC, General Partner
By:
/s/ Jonathan Isler
Name: Jonathan Isler
Title: Attorney-in-Fact*
DEERFIELD SPECIAL SITUATIONS INTERNATIONAL MASTER FUND, L.P.
By: Deerfield Mgmt, L.P., General Partner
By: J.E. Flynn Capital LLC, General Partner
By:
/s/ Jonathan Isler
Name: Jonathan Isler
Title: Attorney-in-Fact*
BREAKING STICK HOLDINGS, LLC
By: Deerfield Management Company, L.P., Manager
By: Flynn Management LLC, General Partner
By:
/s/ Jonathan Isler
Name: Jonathan Isler
Title: Attorney-in-Fact*
JAMES E. FLYNN
/s/ Jonathan Isler
Jonathan Isler, Attorney-in-Fact*
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*Power of Attorney previously filed as Exhibit 24 to a Form 4 with regard to Talon Therapeutics, Inc. filed with the Securities and Exchange Commission on August 21, 2012 by Deerfield Mgmt L.P., Deerfield Management Company, L.P., Deerfield Special Situations Fund, L.P., Deerfield Special Situations Fund International, Limited, Deerfield Private Design Fund, L.P., Deerfield Private Design International, L.P. and James E. Flynn.
Schedule A
General Partner of Deerfield Mgmt, L.P.
The general partner of Deerfield Mgmt is J.E. Flynn Capital LLC. The address of the principal business and/or principal office of Deerfield Mgmt and J.E. Flynn Capital LLC is 780 Third Avenue, 37th Floor, New York, New York 10017.
General Partner of Deerfield Special Situations Fund, L.P.
The general partner of Deerfield Special Situations Fund is Deerfield Mgmt. The address of the principal business and/or principal office of Deerfield Mgmt and Deerfield Special Situations Fund is 780 Third Avenue, 37th Floor, New York, New York 10017.
General Partner of Deerfield Private Design Fund II, L.P.
The general partner of Deerfield Private Design II is Deerfield Mgmt. The address of the principal business and/or principal office of Deerfield Mgmt and Deerfield Private Design II is 780 Third Avenue, 37th Floor, New York, New York 10017.
General Partner of Deerfield Private Design International II, L.P.
The general partner of Deerfield Private Design International II is Deerfield Mgmt. The address of the principal business and/or principal office of Deerfield Mgmt and Deerfield Private Design International II is 780 Third Avenue, 37th Floor, New York, New York 10017.
General Partner of Deerfield Management Company, L.P.
The general partner of Deerfield Management is Flynn Management LLC. The address of the principal business and/or principal office of Deerfield Management and Flynn Management LLC is 780 Third Avenue, 37th Floor, New York, New York 10017.
General Partner of Deerfield Special Situations International Master Fund, L.P.
The general partner of Deerfield Special Situations Master is Deerfield Mgmt. The address of the principal business and/or principal office of Deerfield Mgmt and Deerfield Special Situations Master is 780 Third Avenue, 37th Floor, New York, New York 10017.
Manager of Breaking Stick Holdings, LLC
The general partner of Breaking Stick is Deerfield Management. The address of the principal business and/or principal office of Deerfield Management and Breaking Stick is 780 Third Avenue, 37th Floor, New York, New York 10017.