SECURITIES AND EXCHANGE COMMISSION
Schedule TO
(Rule 14d-100)
(AMENDMENT NO. 5)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
Ribapharm Inc.
Rx Acquisition Corporation
ICN Pharmaceuticals, Inc.
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
762537108
(CUSIP Number of Class of Securities)
Gregory Keever, Esq.
Executive Vice President and Special Counsel to the Chairman
ICN Pharmaceuticals, Inc.
3300 Hyland Avenue
Costa Mesa, California 92626
(714) 545-0100
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of the Filing Persons)
with a copy to:
Stephen F. Arcano, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
(212) 735-3000
CALCULATION OF FILING FEE
| Transaction Valuation* | Amount of Filing Fee** | ||||
$167,440,000 |
$ | 13,545.90 | |||
| * | Estimated for purposes of calculating the amount of the filing fee only. This calculation assumes the purchase of all outstanding shares (the “Shares”) of common stock, par value $.01 per share, of Ribapharm Inc., a Delaware corporation (the “Company”), not owned by ICN or its subsidiaries, at a purchase price of $5.60 per Share, net to the seller in cash. As of May 12, 2003, there were 150,000,000 shares of common stock of the Company outstanding, of which 120,100,000 shares are owned by ICN. As a result, this calculation assumes the purchase of 29,900,000 shares of common stock of the Company. | |
| ** | The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 11 issued by the Securities and Exchange Commission on February 21, 2003. Such fee equals .00809 percent of the value of the transaction. |
| 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: | 13,545.90 | Filing Party: | ICN Pharmaceuticals, Inc. | |||||
| Form or Registration No.: | Schedule TO-T | Date Filed: | June 10, 2003 |
o 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.
o issuer tender offer subject to Rule 13e-4.
x going-private transaction subject to Rule 13e-3.
o 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: o
| Item 11. Additional Information. | ||||||||
| Item 12. Exhibits. | ||||||||
| SIGNATURES | ||||||||
| INDEX TO EXHIBITS | ||||||||
| FIRST AMENDED CLASS ACTION COMPLAINT | ||||||||
This Amendment No. 5 amends and supplements the Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO with the Securities and Exchange Commission on June 10, 2003 by ICN Pharmaceuticals, Inc., a Delaware corporation (“ICN”or “Parent”), relating to the Offer (as defined below) to purchase all outstanding shares (the “Shares”) of common stock, par value $.01 per share, of Ribapharm Inc., a Delaware corporation (the “Company”), not owned by ICN or its subsidiaries, at a purchase price of $5.60 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated June 10, 2003 (the “Offer to Purchase”), and the related Letter of Transmittal (which, as amended or supplemented from time to time, together constitute the “Offer”).
Item 11. Additional Information.
(a)(5) In connection with the consolidated action previously disclosed, on June 26, 2003, a First Amended Class Action Complaint (the “First Amended Complaint”) was filed in that action in the Court of Chancery in the State of Delaware. The First Amended Complaint is brought against Parent by seven individuals who claim to be stockholders of the Company, and is also purportedly brought on behalf of a plaintiff class of all stockholders of the Company, excluding Parent and any related or affiliated person or entity. The First Amended Complaint alleges that Parent breached its fiduciary obligations to the public stockholders of the Company by, among other things, failing to establish entire fairness in either the process or purchase price, and failing to disclose material information. Plaintiffs seek to enjoin Parent from proceeding with the proposed transaction on the terms presently proposed and pending further disclosure, or, alternatively if the transaction is consummated, to rescind the transaction or obtain rescissory damages. Plaintiffs further request an award of monetary damages, including attorneys’ fees and experts’ fees incurred in connection with the litigation.
Item 12. Exhibits.
| (a)(5)(xi) | First Amended Class Action Complaint under the caption “In re: Ribapharm Inc. Shareholders Litigation” (Consolidated C.A. No. 20337 NC) filed in the Court of Chancery in the State of Delaware on June 26, 2003. |
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.
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RX ACQUISITION CORPORATION | |||
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| By: /s/ Bary G. Bailey | ||||
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| Name: Bary G. Bailey | ||||
| Title: Vice President and Treasurer | ||||
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| ICN PHARMACEUTICALS, INC. | ||||
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| By: /s/ Timothy C. Tyson | ||||
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| Name: Timothy C. Tyson | ||||
| Date: June 27, 2003 | Title: President and Chief Operating Officer | |||
INDEX TO EXHIBITS
| (a)(5)(xi) | First Amended Class Action Complaint under the caption “In re: Ribapharm Inc. Shareholders Litigation” (Consolidated C.A. No. 20337 NC) filed in the Court of Chancery in the State of Delaware on June 26, 2003. |