================================================================================
SECURITIES AND EXCHANGE COMMISSION
================================================================================
Washington, D.C. 20549
-----------
SCHEDULE TO
AMENDMENT NO. 4
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) or 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
EON LABS, INC.
(Name of Subject Company)
NOVARTIS AG
NOVARTIS CORPORATION
ZODNAS ACQUISITION CORP.
(Name of Filing Persons--Offerors)
COMMON STOCK, PAR VALUE $0.01
(Title of Class of Securities)
29412E100
(CUSIP Number of Class of Securities)
George Miller
Head of Legal and General Affairs
Novartis AG
35 Lichtstrasse
CH-4002 Basel, Switzerland
41-61-324-1111
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
-Copies to-
Andrew R. Brownstein, Esq.
Trevor S. Norwitz, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
(212) 403-1000
-----------
CALCULATION OF FILING FEE
Transaction Valuation Amount of Filing Fee
------------------------------------- ----------------------------------
------------------------------------- ----------------------------------
$977,098,158* $115,005*
------------------------------------- ----------------------------------
------------------------------------- ----------------------------------
------------------------------------- ----------------------------------
* Estimated for purposes of calculating the amount of the filing fee only.
The calculation of the filing fee is described on the cover page to
Amendment No. 1 to the Schedule TO filed on May 27, 2005.
[X] 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.
Amount Previously Paid: $115,005 Filing Party: Novartis Corp.
Form or Registration No.: Schedule TO Date Filed: May 23, 2005
[ ] 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: [ ]
================================================================================
This Amendment No. 4 amends and supplements the Tender Offer Statement on
Schedule TO, as amended, (the "Schedule TO"), originally filed with the
Securities and Exchange Commission on May 23, 2005 and as amended and
supplemented by Amendment No. 1 on May 27, 2005, Amendment No. 2 on June 2,
2005, and Amendment No. 3 on June 7, 2005, by Novartis AG, a Swiss Corporation,
Novartis Corporation ("Novartis US"), a New York corporation and an indirect
wholly owned subsidiary of Novartis AG, and Zodnas Acquisition Corp. ("Zodnas"),
a Delaware corporation and an indirect wholly owned subsidiary of Novartis US.
The Schedule TO relates to the offer by Zodnas to purchase any and all of the
outstanding shares of common stock, par value $0.01 per share (the "Shares"), of
Eon Labs, Inc., a Delaware corporation ("Eon"), for $31.00 per Share, net to the
seller in cash, upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated May 23, 2005 (the "Offer to Purchase"), and in the
related Letter of Transmittal. Copies of the Offer to Purchase and the related
Letter of Transmittal are filed with the Schedule TO as exhibits (a)(1)(A) and
(a)(1)(B), respectively. Capitalized terms used and not defined herein shall
have the meanings assigned such terms in the Offer to Purchase and Schedule TO.
ITEMS 1 THROUGH 9 AND 11.
Items 1 through 9 and 11 of the Schedule TO, which incorporate by reference
the information contained in the Offer to Purchase, are hereby amended and
supplemented as follows:
The Offer to Purchase is hereby amended and supplemented as follows:
1. The following sentence is hereby added at the end of the
second paragraph on page 1:
"The Santo Purchase will be consummated immediately
following the expiration of the Offer."
2. The following sentence is hereby added at the end of the
response to the question on page 6: "Does Purchaser have the
financial resources to pay for the Shares it is offering to
purchase?":
"No alternative financing plan exists."
3 In the response following the question "If I accept the
Offer, when will I get paid?" on page 7, the words "as
promptly as practicable" are hereby deleted and replaced
with "promptly".
4. The second sentence of the first paragraph in the section
entitled "Forward-Looking Statements" on page 11 is hereby
deleted.
5. The following language is hereby inserted as an additional
paragraph on page 11 following the second paragraph on such
page:
"The forward-looking statements contained within this Offer
to Purchase are not subject to the "safe harbor" provided
for in the Private Securities Litigation Reform Act of
1995."
6. The first sentence of the second complete paragraph on page
13 is hereby deleted and replaced with the following:
"Novartis US will purchase the Santo Shares pursuant to the
Santo Agreement immediately following the expiration of the
Offer (such purchase, the "Santo Purchase")."
7. The following sentence is hereby added at the end of the
third paragraph on page 18:
"Neither Novartis AG, Novartis US nor Zodnas has any present
intention to transfer or assign, or to cause the transfer or
assignment of, the right to purchase Shares tendered into
the Offer. In the event of any change in such intention, any
transferee or assignee will be considered an offeror for
purposes of the Offer and will independently satisfy the
timing, signatory and dissemination requirements of the
federal securities laws."
8. The following words are inserted at the end of the third
sentence of Section 13 on page 42 and prior to the period:
"and no alternative financing plans exist"
9. The last paragraph on page 30 is hereby deleted and replaced
with the following:
The descriptions of the Merger Agreement and the Santo
Agreement in this Offer to Purchase have been included to
provide you with information regarding their terms. The
Merger Agreement and the Santo Agreement each contain
representations and warranties made by and to the parties
thereto as of specific dates. The statements embodied in
those representations and warranties were made for purposes
of those contracts between the respective parties and are
subject to qualifications and limitations agreed by the
respective parties in connection with negotiating the terms
of those contracts. In addition, certain representations and
warranties were made as of a specified date, may be subject
to a contractual standard of materiality different from
those generally applicable to shareholders, or may have been
used for the purpose of allocating risk between the
respective parties rather than establishing matters as
facts.
FORM OF LETTER OF TRANSMITTAL
The Form of Letter of Transmittal included as Exhibit (a)(1)(B) to the
Schedule TO is hereby amended and supplemented as follows:
1. The last sentence of the third paragraph on page 5 is hereby
deleted and replaced with the following:
"Under certain circumstances set forth in the Offer to
Purchase, Purchaser may not be required to accept for
payment any of the Shares tendered by this Letter of
Transmittal."
2. The last sentence of the last paragraph on page 5 is hereby
deleted and replaced with the following:
"Purchaser has no obligation, pursuant to the Special
Payment Instructions, to transfer any Shares from the name
of the registered holder(s) of such Shares if Purchaser does
not purchase any of the Shares tendered by this Letter of
Transmittal."
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.
Dated: June 15, 2005
NOVARTIS AG
By: /s/ George Miller
-------------------------------
Name George Miller
Title: Authorized Signatory
By: /s/ Peter Rupprecht
-------------------------------
Name: Peter Rupprecht
Title: Authorized Signatory
NOVARTIS CORPORATION
By: /s/ Terrence A Barnett
-------------------------------
Name: Terrence A Barnett
Title: President and
Chief Executive Officer
ZODNAS ACQUISITION CORP.
By: /s/ Eric Pomerantz
-------------------------------
Name: Eric Pomerantz
Title: Vice President
Zodnas Acquistion Corp
EXHIBIT INDEX
*(a)(1)(A) Offer to Purchase, dated May 23, 2005.
*(a)(1)(B) Form of 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 (TIN)
on Substitute Form W-9.
(a)(2) Not applicable.
(a)(3) Not applicable.
(a)(4) Not applicable.
*(a)(5)(A) Text of Press Release issued by Novartis dated February 21, 2005,
incorporated in this Schedule TO by reference to the Schedule TO
filed by Novartis AG, Novartis US and Zodnas on February 22, 2005.
*(a)(5)(B) Form of Summary Advertisement published in The Wall Street Journal on
May 23, 2005.
*(a)(5)(C) Text of Press Release issued by Novartis dated May 27, 2005.
*(a)(5)(D) Text of Press Release issued by Novartis dated June 7, 2005.
*(a)(6)(A) Complaint titled Ellen Wiehl v. Eon Labs, Inc. et al., filed on
February 22, 2005, in the Chancery Court of the State of Delaware,
County of New Castle.
*(a)(6)(B) Complaint titled Paulena Partners LLC v. Eon Labs, Inc. et al., filed
on February 22, 2005, in the Chancery Court of the State of
Delaware, County of New Castle.
*(a)(6)(C) Complaint titled Robert Kemp, IRRA v. Eon Labs, Inc. et al., filed on
February 22, 2005, in the Chancery Court of the State of Delaware,
County of New Castle.
*(a)(6)(D) Complaint titled Peter J. Calcagno v. Eon Labs, Inc. et al., filed on
February 23, 2005, in the Chancery Court of the State of Delaware,
County of New Castle.
*(a)(6)(E) Complaint titled Christopher Pizzo v. Novartis AG et al., filed on
February 23, 2005, in the Supreme Court of the State of New York,
County of New York.
*(a)(6)(F) Complaint titled Erste Sparinvest Kapitalanlagegesellschaft MBH v.
Eon Labs, Inc. et al., filed on March 1, 2005, in the Chancery Court
of the State of Delaware, County of New Castle.
*(a)(6)(G) Complaint titled Merl Huntsinger v. Eon Labs, Inc. et al., filed on
March 1, 2005, in the Chancery Court of the State of Delaware,
County of New Castle.
*(a)(6)(H) Complaint titled Jason Hung v. Eon Labs, Inc. et al., filed on March
3, 2005, in the Chancery Court of the State of Delaware, County
of New Castle.
*(a)(6)(I) Consolidated Amended Complaint titled In re Eon Labs, Inc.
Shareholders Litigation, filed on May 27, 2005, in the Chancery
Court of the State of Delaware, County of New Castle.
(b) None.
*(d)(1) Agreement and Plan of Merger, dated as of February 20, 2005, by
and among Novartis US, Zodnas, Eon and, for purposes of Section
12 thereof only, Novartis AG, incorporated in this Schedule TO by
reference to Exhibit 2.2 to the Schedule 13D filed by Novartis US,
Novartis AG and Zodnas on March 2, 2005.
*(d)(2) Agreement for Purchase and Sale of Stock, dated as of February 20,
2005, by and between Novartis US, Santo and, for purposes of
Section 10.12 thereof only, Novartis AG, incorporated in this
Schedule TO by reference to Exhibit 2.1 to the Schedule 13D filed
by Novartis US, Novartis AG and Zodnas on March 2, 2005.
*(d)(3) Confidentiality Agreement, by and between Novartis US and Eon, dated
as of February 11, 2005, incorporated in this Schedule TO by
reference to Exhibit 2.3 to the Schedule 13D filed by Novartis US,
Novartis AG and Zodnas on March 2, 2005.
(g) None.
(h) Not applicable.
------------------------
* Previously filed.