UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
TO
(Amendment
No. 2)
Tender
Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
BIODELIVERY
SCIENCES INTERNATIONAL, INC.
(Name
of Subject Company (Issuer))
BRISTOL
ACQUISITION COMPANY INC.
(Offeror)
a
wholly owned subsidiary of
COLLEGIUM
PHARMACEUTICAL, INC.
(Parent
of Offeror)
(Names
of Filing Persons)
COMMON
STOCK, $0.001 PAR VALUE PER SHARE
(Title
of Class of Securities)
09060J106
(CUSIP
Number of Class of Securities)
Joseph
Ciaffoni
President
and Chief Executive Officer
Collegium Pharmaceutical, Inc.
100
Technology Center Drive, Suite 300
Stoughton,
Massachusetts 02072
(781)
713-3699
(Name,
address, and telephone number of person authorized to receive notices and communications on behalf of filing persons)
with
copies to:
Jennifer
L. Porter, Esq. |
Shirley
R. Kuhlmann, Esq. |
Troutman
Pepper Hamilton Sanders LLP |
Executive
Vice President and |
3000
Two Logan Square |
General
Counsel |
Eighteenth
and Arch Streets |
100
Technology Center Drive, Suite 300 |
Philadelphia,
PA 19103 |
Stoughton,
MA 02072 |
(215)
981-4000 |
(781)
713-3699 |
| ¨ | 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) |
This
Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities
and Exchange Commission on February 18, 2022, as amended (together with this and any subsequent amendments and supplements thereto, the “Schedule
TO”), and relates to the tender offer by Bristol Acquisition Company Inc., a Delaware corporation (“Purchaser”) and
wholly owned subsidiary of Collegium Pharmaceutical, Inc. (“Collegium”), a Delaware corporation, to purchase all of
the outstanding shares of common stock, par value $0.001 per share (the “Shares”), of BioDelivery Sciences International, Inc.,
a Delaware corporation (“BDSI”), at an offer price of $5.60 per Share, in cash, subject to applicable withholding taxes and
without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated February 18, 2022 (together
with any amendments and supplements thereto, the “Offer to Purchase”), and in the related letter of transmittal (as it may
be amended or supplemented from time to time, the “Letter of Transmittal”), copies of which are attached hereto as exhibits
(a)(1)(A) and (a)(1)(B), respectively.
All
the information set forth in the Offer to Purchase, including Schedule I thereto, and in the Letter of Transmittal, is hereby expressly
incorporated in this Schedule TO by reference in response to Items 1 through 9 and Item 11 of this Schedule TO, and is supplemented by
the information specifically provided in this Amendment.
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. Capitalized terms used but not defined herein have the meanings ascribed
to them in the Schedule TO.
Item
11. Additional Information.
The
information set forth in the Offer to Purchase under Section 16 — “Certain Legal Matters; Regulatory Approvals”
and Item 11 of the Schedule TO, to the extent such Item incorporates by reference the information contained in the Offer to Purchase,
is amended and supplemented by adding the following sentences to the second paragraph under the heading “United States Antitrust
Compliance” on page 54 of the Offer to Purchase with the following:
“The
initial waiting period under the HSR Act with respect to the Offer expired, effective March 3, 2022, at 11:59 p.m., Eastern Time.
Accordingly, the Regulatory Condition has been satisfied. The Offer continues to be subject to the remaining conditions set forth in
Section 15 — “Conditions to the Offer.” At any time before or after Purchaser’s acceptance for payment of
Shares pursuant to the Offer, if the FTC believes that the Offer may substantially lessen competition in any line of commerce in violation
of the U.S. federal antitrust laws, the FTC may challenge the transaction by seeking a federal court order enjoining
the transaction or, if Shares have already been acquired, requiring disposition of such Shares, or the divestiture of assets of Collegium,
BDSI or any of their respective subsidiaries or affiliates. The Antitrust Division, U.S. state attorneys general and private persons
may also bring legal action under the U.S. federal and state antitrust laws. While Purchaser and Collegium each believes that the consummation
of the Offer will not violate any U.S. federal or state antitrust law, there can be no assurance that a challenge to the Offer on antitrust
grounds will not be made or, if a challenge is made, what the result will be.”
In addition, the information set forth in the Offer to Purchase under
Section 16 — “Certain Legal Matters; Regulatory Approvals” and Item 11 of the Schedule TO, to the extent
such Item incorporates by reference the information contained in the Offer to Purchase, is amended and supplemented by replacing the
information under the heading “Litigation” on page 56 of the Offer to Purchase with the following:
On February 25, 2022,
in connection with the Transactions, a purported individual stockholder of BDSI filed a complaint in the United States District Court
for the Southern District of New York, captioned Stein v. BioDelivery Sciences International, Inc., et al., No. 1:22-cv-01600, naming
as defendants BDSI and each member of BDSI’s Board of Directors as of the date of the Merger Agreement (“Stein”). On
February 28, 2022, two additional cases were filed by purported individual stockholders of BDSI in the same court, captioned Sanford
v. BioDelivery Sciences International, Inc., et al., 1:22-cv-01676 (“Sanford”), and Higley v. BioDelivery
Sciences International, Inc., et al., No. 1:22-cv-01658 (“Higley”). On March 2, 2022, a fourth case was filed
by a purported individual stockholder of BDSI in the United States District Court for the Eastern District of New York, captioned Justice
II v. BioDelivery Sciences International, Inc., et al., 1:22-cv-01145 (“Justice”). The Stein, Sanford,
Higley, Justice, and any similar subsequently filed cases involving BDSI, BDSI’s Board of Directors or any committee
thereof and/or any of BDSI’s directors or officers relating directly or indirectly to the Merger Agreement, the Transactions or
any related transaction, are referred to as the “Transaction Litigations.”
The Transaction Litigations filed to date generally
allege that the Schedule 14D-9 filed by BDSI with the SEC on February 18, 2022 in connection with the Transactions is materially incomplete
and misleading by allegedly failing to disclose purportedly material information relating to the sale process leading to the Transactions,
BDSI’s financial projections, and the analyses performed by Moelis & Company LLC in connection with the Transactions. The Transaction
Litigations assert violations of Section 14(e) of the Exchange Act and violations of Section 20(a) of the Exchange Act against
BDSI’s Board of Directors. Additionally, the Stein, Higley, and Justice complaints assert violations of Section 14(d)
of the Exchange Act and Rule 14d-9 promulgated thereunder. The Transaction Litigations seek, among other things: an injunction enjoining
consummation of the Transactions, rescission of the Merger Agreement, a declaration that BDSI and BDSI’s Board of Directors violated
Sections 14(e) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder, damages, costs of the action, including
plaintiff’s attorneys’ fees and experts’ fees and expenses, and any other relief the court may deem just and proper.
In addition, on February 24, 2022 and February
28, 2022, BDSI received demand letters from two purported stockholders of BDSI seeking to inspect certain books and records of BDSI related
to the Merger (collectively, the “Demand Letters”).
BDSI cannot predict the
outcome of the Transaction Litigations or Demand Letters, nor can BDSI predict the amount of time and expense that will be required to
resolve each. BDSI believes that the Transaction Litigations and Demand Letters are without merit and intends to vigorously defend
against each Transaction Litigation, Demand Letter, and any subsequently filed similar actions.
It is possible that additional
similar complaints could be filed or demands received in connection with the Transactions. If additional similar complaints are filed
or demands received, absent new or significantly different allegations, BDSI will not necessarily disclose such additional complaints,
filings, or demands.”
Item
12. Exhibits.
Exhibit |
|
Exhibit Name |
(a)(1)(A) |
|
Offer
to Purchase dated February 18, 2022* |
|
|
|
(a)(1)(B) |
|
Form
of Letter of Transmittal (including Internal Revenue Service Form W-9)* |
|
|
|
(a)(1)(C) |
|
Form
of Notice of Guaranteed Delivery* |
|
|
|
(a)(1)(D) |
|
Form
of Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees* |
|
|
|
(a)(1)(E) |
|
Form
of Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees* |
|
|
|
(a)(1)(F) |
|
Summary
of Newspaper Advertisement, as published in The Wall Street Journal on February 18, 2022* |
|
|
|
(a)(5)(A) |
|
Joint
Press Release issued by Collegium Pharmaceutical, Inc. and BioDelivery Sciences International, Inc. on February 14, 2022 (incorporated
herein by reference to Exhibit 99.1 of the Current Report on Form 8-K filed by Collegium Pharmaceutical, Inc. on February 14, 2022). |
|
|
|
(a)(5)(B) |
|
Investor
Presentation of Collegium Pharmaceutical, Inc., dated February 14, 2022 (incorporated herein by reference to Exhibit 99.2 of the
Current Report on Form 8-K filed by Collegium Pharmaceutical, Inc. on February 14, 2022). |
|
|
|
(b) |
|
Debt
Commitment Letter, dated February 14, 2022, by and between Collegium Pharmaceutical, Inc. and Pharmakon Advisors, L.P.* |
|
|
|
(d)(1) |
|
Agreement and Plan of Merger, dated as of February 14, 2022, by and among Collegium Pharmaceutical, Inc., Bristol Acquisition Company
Inc., and BioDelivery Sciences International, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by
Collegium Pharmaceutical, Inc. on February 14, 2022). |
|
|
|
(d)(3) |
|
Form of Tender and Support Agreement, dated as of February 14, 2022 (incorporated by reference to Exhibit 10.1 to the Current Report
Form 8-K filed by Collegium Pharmaceutical, Inc. on February 14, 2022). |
|
|
|
(d)(4) |
|
Confidentiality
Agreement, dated as of December 29, 2021 by and between Collegium Pharmaceutical, Inc. and BioDelivery Sciences International, Inc.* |
|
|
|
(d)(5) |
|
Exclusivity
Agreement, dated as of February 4, 2022, by and between Collegium Pharmaceutical, Inc. and BioDelivery Sciences International, Inc.* |
|
|
|
(g) |
|
Not
applicable. |
|
|
|
(h) |
|
Not
applicable. |
|
|
|
107 |
|
Fee
Filing Table (incorporated by reference to Amendment No. 1 to Schedule TO filed on February 18, 2022). |
*Previously
filed.
**Filed
herewith.
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.
|
BRISTOL ACQUISITION COMPANY INC. |
|
|
|
By |
/s/ Joseph Ciaffoni |
|
|
Name: Joseph Ciaffoni |
|
|
Title: President and Chief Executive Officer |
|
|
Date: March 4, 2022 |
|
|
|
|
COLLEGIUM PHARMACEUTICAL, INC. |
|
|
|
By |
/s/ Shirley Kuhlmann |
|
|
Name: Shirley Kuhlmann |
|
|
Title: EVP, General Counsel and Secretary |
|
|
Date: March 4, 2022 |
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