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. 1)
DIPLOMAT PHARMACY, INC.
(Name of Subject Company (Issuer))
DENALI MERGER SUB, INC.
(Offeror)
a direct wholly owned subsidiary of
UNITEDHEALTH GROUP INCORPORATED
(Ultimate Parent of Offeror)
(Name of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, No Par Value
(Title of Class of Securities)
25456K101
(CUSIP Number of Class of Securities)
Marianne D. Short
Executive Vice President and Chief Legal Officer
UnitedHealth Group Center
9900 Bren Road East
Minnetonka, Minnesota 55343
Telephone: (952)936-1300
(Name, Address, and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
with copies to:
Timothy R. Aragon
G. Allen Hicks
Hogan Lovells US LLP
1601 Wewatta Street, Suite 900
Denver, CO 80202
Telephone:(303) 899-7300
Calculation of Filing Fee
| ||
| Transaction Valuation* | Amount of Filing Fee** | |
| $308,115,224 | $39,994 | |
| ||
| ||
| * | Estimated solely for the purpose of calculating the filing fee pursuant to Rule0-11 of the Securities Exchange Act of 1934, as amended. Calculated by adding (i) 76,000,791 shares of common stock of Diplomat Pharmacy, Inc. (“Diplomat”) (including 186,969 shares issued as Diplomat restricted stock awards), multiplied by $4.00, the per share tender offer price, and (ii) 1,028,015 shares of common stock of Diplomat subject to outstanding Diplomat restricted stock units (assuming performance levels were achieved at 100%), multiplied by $4.00, the per share tender offer price, in each case as of January 6, 2020. The calculation of the filing fee is based on information provided by Diplomat as of January 6, 2020. |
| ** | The amount of the filing fee, calculated in accordance with Rule0-11 under the Securities Exchange Act of 1934, as amended, equals 0.0001298 multiplied by the estimated transaction valuation. |
| ☒ | Check the box if any part of the fee is offset as provided by Rule0-11(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: $39,994 | Filing Party: UnitedHealth Group Incorporated and Denali Merger Sub, Inc. | |
| Form or Registration No.: Schedule TO | Date Filed: January 9, 2020 |
| ☐ | 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:
| ☒ | third-party tender offer subject toRule 14d-1 |
| ☐ | issuer tender offer subject toRule 13e-4 |
| ☐ | going-private transaction subject toRule 13e-3 |
| ☐ | amendment to Schedule 13D underRule 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:
| ☐ | Rule13e-4(i) (Cross-Border Issuer Tender Offer) |
| ☐ | Rule14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 1 amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on January 9, 2020 (together with any amendments or supplements thereto, the “Schedule TO”) by (i) Denali Merger Sub, Inc., a Michigan corporation (“Purchaser”) and a direct wholly owned subsidiary of UnitedHealth Group Incorporated, a Delaware corporation (“UnitedHealth Group”), and (ii) UnitedHealth Group. The Schedule TO relates to the offer by Purchaser to purchase all outstanding shares of common stock, no par value (the “Shares”), of Diplomat Pharmacy, Inc., a Michigan corporation (“Diplomat”), at a price of $4.00 per Share, net to the seller in cash, without interest and subject to any required tax withholding, on the terms and subject to the conditions described in the Offer to Purchase, dated January 9, 2020 (together with any amendments or supplements thereto, the “Offer to Purchase”), and the accompanying Letter of Transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal,” and, together with the Offer to Purchase and other related materials, the “Offer”), copies of which are attached to the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
Except as otherwise set forth in this Amendment No. 1, 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 No. 1. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Offer to Purchase. This Amendment No. 1 should be read together with the Schedule TO.
Item 11. Additional Information
The Offer to Purchase and Item 11 of the Schedule TO, to the extent Item 11 incorporates by reference the information contained in the Offer to Purchase, are hereby amended and supplemented to include the followingsub-heading and paragraph at the end of Section 15 “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase:
Certain Litigation.On January 15, 2020, putative Diplomat stockholder Stephen Bushansky filed a lawsuit concerning the Transactions against Diplomat and its directors in the U.S. District Court for the Eastern District of Michigan. The lawsuit is captionedBushansky v. Diplomat Pharmacy, Inc., et al., Case No.20-CV-10107-PDB-DRG. On January 16, 2020, putative Diplomat stockholder Richard Scarantino filed a purported class action lawsuit concerning the Transactions against Diplomat, its directors, UnitedHealth Group, and Purchaser in the U.S. District Court for the District of Delaware. The lawsuit is captionedScarantino v. Diplomat Pharmacy, Inc., et al.,Case No.20-CV-00066-UNA. Also on January 16, 2020, putative stockholder David A. Prentice filed a purported class action lawsuit concerning the Transactions against Diplomat, its directors, UnitedHealth Group, and Purchaser in the U.S. District Court for the District of Delaware. The lawsuit is captionedPrentice v. Diplomat Pharmacy, Inc., et al., Case No.20-CV-00068-UNA. On January 17, 2020, putative stockholder Robert Campbell filed a lawsuit concerning the Transactions against Diplomat and its directors in the U.S. District Court for the Southern District of New York. The lawsuit is captionedCampbell v. Diplomat Pharmacy, Inc., et al., Case No.20-CV-00474.
All four lawsuits allege that Diplomat’s Schedule14D-9 omits certain information with respect to the financial data and inputs underlying Foros Securities LLC’s opinion, and various details in the section of the Schedule14D-9 entitled “—Background of the Transactions”. Plaintiffs assert claims under the federal securities laws and seek, among other things, to enjoin the Transactions or, in the alternative, rescission (or rescissory damages) if the Transactions close. We believe that plaintiffs’ allegations lack merit and intend to contest them vigorously. If additional, similar complaints are filed concerning the Transactions, absent new or different allegations that are material, we will not necessarily announce such additional filings.
EXHIBIT INDEX
Exhibit No. | Description | |
(a)(1)(A) | Offer to Purchase, dated January 9, 2020.* | |
(a)(1)(B) | Form of Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on FormW-9).* | |
(a)(1)(C) | Form of Notice of Guaranteed Delivery.* | |
(a)(1)(D) | Form of Letter from the Information Agent 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) | Summary Advertisement published in The New York Times on January 9, 2020.* | |
(a)(5)(A) | Joint Press Release issued by Diplomat Pharmacy, Inc. and UnitedHealth Group Incorporated, dated December 9, 2019, announcing entry into the Agreement and Plan of Merger (incorporated herein by reference toExhibit (a)(5)(A) to UnitedHealth Group Incorporated’s ScheduleTO-C filed with the SEC on December 9, 2019). | |
(a)(5)(B) | Key Messages and Talking Points, dated December 9, 2019 (incorporated herein by reference toExhibit (a)(5)(B) to UnitedHealth Group Incorporated’s ScheduleTO-C filed with the SEC on December 9, 2019). | |
(a)(5)(C) | Frequently Asked Questions, dated December 9, 2019 (incorporated herein by reference toExhibit (a)(5)(C) to UnitedHealth Group Incorporated’s ScheduleTO-C filed with the SEC on December 9, 2019). | |
(a)(5)(D) | Message from Tom Mullin to All Diplomat Pharmacy, Inc. Employees, dated December 10, 2019 (incorporated herein by reference toExhibit (a)(5)(D) to UnitedHealth Group Incorporated’s ScheduleTO-C filed with the SEC on December 10, 2019). | |
(d)(1) | Agreement and Plan of Merger, dated as of December 9, 2019, by and among UnitedHealth Group Incorporated, Denali Merger Sub, Inc. and Diplomat Pharmacy, Inc. (incorporated herein by reference to Exhibit 2.1 to Diplomat Pharmacy, Inc.’s Current Report on Form8-K filed with the SEC on December 9, 2019). | |
(d)(2) | Tender and Support Agreement, dated as of December 9, 2019, by and among UnitedHealth Group Incorporated, Denali Merger Sub, Inc. and Philip R. Hagerman and certain persons and entities affiliated with Philip R. Hagerman (incorporated herein by reference toExhibit 99.1 to the Company’s Current Report on Form8-K filed with the SEC on December 9, 2019). | |
*Previously filed.
SIGNATURES
After due inquiry and to the best of the undersigned’s knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: January 21, 2020
| UNITEDHEALTH GROUP INCORPORATED | ||
| By: | /s/ Dannette L. Smith | |
| Name: | Dannette L. Smith | |
| Title: | Secretary of the Board of Directors | |
| DENALI MERGER SUB, INC. | ||
| By: | /s/ Karen E. Peterson | |
| Name: | Karen E. Peterson | |
| Title: | Secretary | |
