Amended Tender Offer Statement by Third Party (sc To-t/a)
15 Março 2013 - 9:38AM
Edgar (US Regulatory)
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. 22)
COMPLETE
GENOMICS, INC.
(Name of Subject Company (Issuer))
BETA ACQUISITION CORPORATION
(Offeror)
A Wholly-Owned Subsidiary of
BGI-SHENZHEN
(Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class Of Securities)
20454K 10 4
(CUSIP Number of Class of Securities)
Wang Jun
Chief Executive Officer
BGI-SHENZHEN
11F-3, Main Building, Bei Shan Industrial Zone,
Yantian District, Shenzhen, China 518083
011-86-755-2527-3620
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing
persons)
Copies to:
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Paul Scrivano, Esq.
O’Melveny & Myers LLP
Two Embarcadero Center, 28
th
Floor
San Francisco, CA 94111
(415) 984-8701
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Wendy Pan, Esq.
O’Melveny & Myers LLP
Plaza 66, Tower 1, 37th
Floor
1266 Nanjing Road West
Shanghai 200040
86-21-2307-7300
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CALCULATION OF FILING FEE
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Transaction Valuation(1)
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Amount Of Filing Fee(2)
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$130,200,342
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$14,920.96
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(1)
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Estimated for purposes of calculating the amount of the filing fee only. This calculation assumes the purchase of 41,333,442 shares of common stock, $0.001 par value
per share (the “Shares”), of Complete Genomics, Inc. (the “Company”), at a purchase price of $3.15 per Share, net to the tendering stockholders in cash, without interest and subject to any required withholding of taxes. As of
September 12, 2012, such Shares consisted of (i) 34,385,800 shares of common stock of the Company that were issued and outstanding; (ii) 2,901,176 shares of common stock of the Company issuable upon exercise of outstanding in-the-money stock
options; (iii) 1,112,335 shares of common stock subject to outstanding restricted stock units; (iv) 1,533,823 shares of common stock issuable upon exercise of outstanding warrants; and (v) 1,400,308 shares of common stock issuable pursuant to the
Company’s employee stock purchase plan.
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(2)
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The amount of the filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #3 for fiscal year
2012, issued September 29, 2011, by multiplying the transaction value by 0.0001146.
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x
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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: $14,920.96
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Filing Party: BGI-Shenzhen and Beta Acquisition Corporation
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Form or Registration No.: Schedule TO
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Date Filed: September 25, 2012
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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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x
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Third-party tender offer subject to Rule 14d-1.
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¨
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Issuer tender offer subject to Rule 13e-4.
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¨
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Going-private transaction subject to Rule 13e-3.
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x
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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.
x
If applicable, check the appropriate box(es) below to
designate the appropriate rule provision(s) relied upon:
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¨
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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¨
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
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CUSIP No. 20454K 10 4
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1.
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NAME OF REPORTING PERSON
BGI-Shenzhen
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2.
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP
(a)
¨
(b)
¨
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3.
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SEC USE ONLY
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4.
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SOURCE OF FUNDS (See
Instructions)
BK, OO
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5.
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CHECK IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
¨
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6.
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CITIZENSHIP OR PLACE OF
ORGANIZATION
People’s Republic of
China
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7.
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SOLE VOTING POWER
0
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8.
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SHARED VOTING POWER
31,403,880(1)
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9.
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SOLE DISPOSITIVE POWER
0
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10.
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SHARED DISPOSITIVE POWER
31,403,880(1)
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11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
31,403,880
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12.
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CHECK IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES
¨
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13.
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
88.4%(2)
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14.
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TYPE OF REPORTING
PERSON
CO
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(1)
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Includes Shares (as defined below), including Shares subject to guaranteed delivery procedures, tendered in the Offer (as defined below).
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(2)
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Based on 35,505,754 shares of common stock outstanding as of March 14, 2013, as reported by Complete Genomics, Inc.
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2
CUSIP No. 20454K 10 4
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1.
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NAME OF REPORTING PERSON
Beta Acquisition Corporation
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2.
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP
(a)
¨
(b)
¨
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3.
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SEC USE ONLY
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4.
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SOURCE OF FUNDS (See
Instructions)
BK, OO
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5.
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CHECK IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
¨
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6.
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CITIZENSHIP OR PLACE OF
ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7.
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SOLE VOTING POWER
0
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8.
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SHARED VOTING POWER
31,403,880(1)
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9.
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SOLE DISPOSITIVE POWER
0
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10.
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SHARED DISPOSITIVE POWER
31,403,880(1)
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11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
31,403,880
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12.
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CHECK IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES
¨
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13.
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11)
88.4%(2)
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14.
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TYPE OF REPORTING
PERSON
CO
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(1)
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Includes Shares (as defined below), including Shares subject to guaranteed delivery procedures, tendered in the Offer (as defined below).
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(2)
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Based on 35,505,754 shares of common stock outstanding as of March 14, 2013, as reported by Complete Genomics, Inc.
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3
This Amendment No. 22 to the Tender Offer Statement on Schedule TO (as may be amended
from time to time, the “Schedule TO”) amends and supplements the Schedule TO filed by (i) Beta Acquisition Corporation, a Delaware corporation (the “Purchaser”) and a wholly-owned subsidiary of BGI-Shenzhen, a company
organized under the laws of the People’s Republic of China (“Parent”), and (ii) Parent. The Schedule TO relates to the offer (the “Offer”) by the Purchaser to purchase all of the outstanding shares of common stock, par
value $0.001 per share (the “Shares”), of Complete Genomics, Inc., a Delaware corporation (the “Company”), at a purchase price of $3.15 per Share, net to the seller in cash, without interest thereon, less any required withholding
taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated September 25, 2012 (together with any amendments and supplements thereto, the “Offer to Purchase”) and in the related 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 is supplemented by the information specifically provided in the Schedule TO.
Items 1, 4, 8 and 11.
Items 1, 4, 8 and 11 of the Schedule TO are hereby amended and supplemented as follows:
(1) The Offer expired at 11:59 p.m., New York City time, on Thursday, March 14, 2013. The Depositary has indicated that, as of the
expiration of the Offer, approximately 31,403,880 Shares, or approximately 88% of the outstanding shares of common stock, of the Company, were validly tendered in and not withdrawn from the Offer, including Shares subject to guaranteed delivery
procedures. Purchaser accepted for payment all Shares validly tendered in the Offer and will promptly pay for such Shares in accordance with the terms of the Offer.
Purchaser intends to exercise its Top-Up Option pursuant to the terms of the Merger Agreement to acquire 45,827,602 newly issued Shares of the Company at a purchase price per share equal to the Offer
Price.
Following the expiration of the Offer and the exercise of the Top-Up Option, in accordance with the Merger Agreement,
Purchaser intends to effect a “short-form” merger under Delaware law, pursuant to which the Company will become a wholly-owned subsidiary of Parent, without the need for a meeting of the Company’s stockholders. In connection with the
short-form merger, each outstanding Share of the Company will be converted into the right to receive $3.15 per share, the same price per share paid in the tender offer. Following the Merger, the Shares of the Company will cease to be traded on the
NASDAQ Global Market.
(2) The press release announcing the results and expiration of the Offer is attached hereto as Exhibit
(a)(5)(DD) and is incorporated herein by reference.
Item 12. Exhibits
Item 12 of the Schedule TO is amended and supplemented by adding the following exhibit:
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(a)(5)(DD)
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Press Release issued by BGI-Shenzhen on March 15, 2013.
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4
SIGNATURE
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.
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BETA ACQUISITION CORPORATION
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By:
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/s/ YIN YE
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Name:
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Yin Ye
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Title:
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President and Secretary
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Date: March 15, 2013
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BGI-SHENZHEN
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By:
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/s/ WANG JUN
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Name:
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Wang Jun
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Title:
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Chief Executive Officer
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Date: March 15, 2013
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5
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 September 25, 2012.*
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(a)(1)(B)
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Letter of Transmittal (including 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 Complete Genomics, Inc. and BGI-Shenzhen on September 17, 2012 (incorporated by reference to Exhibit 99.1 to BGI-Shenzhen’s Tender Offer Statement
on Schedule TO filed with the Securities and Exchange Commission on September 17, 2012).*
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(a)(5)(B)
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Summary Newspaper Advertisement as published in The New York Times on September 25, 2012.*
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(a)(5)(C)
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Press Release issued by BGI-Shenzhen on September 25, 2012.*
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(a)(5)(D)
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Complaint filed by Glenn Dietel, on behalf of himself and all other similarly situated, on September 20, 2012, in the Superior Court of the State of California, County of Santa
Clara.*
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(a)(5)(E)
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Complaint filed by Walter David McNeal, on behalf of himself and all other similarly situated, on September 21, 2012, in the Court of Chancery of the State of
Delaware.*
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(a)(5)(F)
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Complaint filed by Christopher Walsh, on behalf of himself and all other similarly situated, on September 24, 2012, in the Superior Court of the State of California, County of Santa
Clara.*
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(a)(5)(G)
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Complaint filed by Budy Liauw, on behalf of himself and all other similarly situated, on September 25, 2012, in the Superior Court of the State of California, County of Santa
Clara.*
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(a)(5)(H)
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Complaint filed by Irwin Hyman, on behalf of himself and all other similarly situated, on September 26, 2012, in the Court of Chancery of the State of Delaware.*
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(a)(5)(I)
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Complaint filed by Chad Gerber, on behalf of himself and all other similarly situated, on September 28, 2012, in the Court of Chancery of the State of Delaware.*
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(a)(5)(J)
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Complaint filed by Saba Saleemi, on behalf of himself and all other similarly situated, on October 1, 2012, in the Court of Chancery of the State of Delaware.*
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(a)(5)(K)
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Amended Complaint filed by Walter David McNeal, on behalf of himself and all other similarly situated, on October 1, 2012, in the Court of Chancery of the State of
Delaware.*
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(a)(5)(L)
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Complaint filed by Derek Davis, on behalf of himself and all other similarly situated, on September 28, 2012, in the Superior Court of the State of California, County of Santa
Clara.*
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(a)(5)(M)
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Press Release issued by BGI-Shenzhen on October 22, 2012.*
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(a)(5)(N)
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Press Release issued by BGI-Shenzhen on November 20, 2012.*
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(a)(5)(O)
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Press Release issued by BGI-Shenzhen on December 13, 2012.*
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(a)(5)(P)
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Press Release issued by BGI-Shenzhen on December 28, 2012.*
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(a)(5)(Q)
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Joint Press Release issued by BGI-Shenzhen and Complete Genomics, Inc. on December 28, 2012.*
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(a)(5)(R)
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Press Release issued by BGI-Shenzhen on January 7, 2013.*
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(a)(5)(S)
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Joint Press Release issued by BGI-Shenzhen and Complete Genomics, Inc. on January 7, 2013.*
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(a)(5)(T)
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Press Release issued by BGI-Shenzhen on January 11, 2013.*
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(a)(5)(U)
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Joint Press Release issued by BGI-Shenzhen and Complete Genomics, Inc. on January 11, 2013.*
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(a)(5)(V)
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Press Release issued by BGI-Shenzhen on January 18, 2013.*
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(a)(5)(W)
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Press Release issued by BGI-Shenzhen on January 25, 2013.*
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(a)(5)(X)
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Press Release issued by BGI-Shenzhen on February 1, 2013.*
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(a)(5)(Y)
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Press Release issued by BGI-Shenzhen on February 6, 2013.*
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(a)(5)(Z)
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Press Release issued by BGI-Shenzhen on February 22, 2013.*
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(a)(5)(AA)
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Joint Press Release issued by BGI-Shenzhen and Complete Genomics, Inc. on February 25, 2013.*
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(a)(5)(BB)
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Press Release issued by BGI-Shenzhen on March 3, 2013.*
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(a)(5)(CC)
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Joint Press Release issued by BGI-Shenzhen and Complete Genomics, Inc. on March 12, 2013.*
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(a)(5)(DD)
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Press Release issued by BGI-Shenzhen on March 15, 2013.
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(b)(1)
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Commitment Letter, dated as of September 4, 2012, by and between the Agricultural Bank of China and BGI-Shenzhen (executed copy is in Chinese; English translation is
attached).*
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(b)(2)
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Commitment Letter, dated as of September 4, 2012, by and between China Construction Bank Corporation and BGI-Shenzhen (executed copy is in Chinese; English translation is
attached).*
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(b)(3)
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Commitment Letter, dated as of August 31, 2012, by and between the Export-Import Bank of China and BGI-Shenzhen (executed copy is in Chinese; English translation is
attached).*
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(d)(A)
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Agreement and Plan of Merger, dated as of September 15, 2012, by and among Complete Genomics, Inc., Beta Acquisition Corporation and BGI-Shenzhen (incorporated by reference to
Exhibit 2.1 to Complete Genomic, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on September 17, 2012).
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7
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(d)(B)
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Tender and Support Agreement, dated as of September 15, 2012, by and among Complete Genomics, Inc., Beta Acquisition Corporation and certain stockholders of Complete Genomics,
Inc. (incorporated by reference to Exhibit 10.1 to Complete Genomics, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on September 17, 2012).
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(d)(C)
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Convertible Subordinated Promissory Note, dated as of September 15, 2012, by and among BGI-Shenzhen, BGI-HONGKONG Co., Limited and Complete Genomics, Inc. (incorporated by reference
to Exhibit 10.2 to Complete Genomics, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on September 17, 2012).
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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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