sctovi
As filed with the Securities and Exchange Commission on
April 19, 2006
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
PHARMION CORPORATION
(Name of Subject Company — Issuer and Filing
Person — Offeror)
OPTIONS TO PURCHASE COMMON STOCK,
par value $0.001 per share
(Title of Class of Securities)
71715B 40 9
(CUSIP Number of Class of Securities)
Steven N. Dupont
Vice President and General Counsel
Pharmion Corporation
2525 28th Street
Boulder, Colorado 80301
(720) 564-9100
(Name, address and telephone number of person authorized to
receive
notices and communications on behalf of Filing Person)
Copies to:
James C. T. Linfield, Esq.
Daniel P. Meehan, Esq.
Cooley Godward LLP
380 Interlocken Crescent, Suite 900
Broomfield, CO 80021-8023
720-566-4000
CALCULATION OF FILING FEE
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| Transaction Valuation* |
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Amount of Filing Fee** |
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$2,077,695
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$222.32 |
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| * |
Calculated solely for purposes of determining the filing fee.
This amount assumes that options to purchase 704,237 shares
of Common Stock of Pharmion Corporation par value
$0.001 per share (“Common Stock”), having an
aggregate value of $2,077,695 will be exchanged pursuant to this
offer. The aggregate value is calculated based upon the
Black-Scholes option pricing model as of April 12, 2006. |
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| ** |
$107.00 per $1,000,000 of the aggregate offering amount (or
0.000107 of the aggregate transaction valuation), pursuant to
Rule 0-11 of the Securities Exchange Act of 1934, as
amended by Fee Advisory #5 for Fiscal Year 2006, effective
November 27, 2005. |
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Check 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: Not applicable
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Filing Party: Not applicable. |
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Form or Registration No.: Not applicable
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Date Filed: Not applicable. |
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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:
o Third-party
tender offer subject to
Rule 14d-1.
þ Issuer
tender offer subject to
Rule 13e-4.
o 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
CUSIP No. 71715B 40 9
ITEM 1. SUMMARY TERM
SHEET.
The information set forth in the Offer to Exchange Outstanding
Options to Purchase Common Stock, filed as
Exhibit 99.(a)(1)(A) hereto (the “Offer”), under
“Summary of Terms” is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY
INFORMATION.
(a) Name and Address. The name of the issuer is
Pharmion Corporation, a Delaware corporation (the
“Company” or “Pharmion”), the address of its
principal executive office is 2525 28th Street, Boulder,
Colorado 80301, and the telephone number of its principal
executive office is (720) 564-9100. The information set
forth in the Offer under Section 16 (“Information
About Pharmion”) is incorporated herein by reference.
(b) Securities. This Schedule TO relates to an
offer by the Company to exchange all stock options to purchase
shares of the Company’s common stock, par value
$0.001 per share, that were granted before April 1,
2005 and that have exercise prices equal to or greater than
$21.00 per share, currently outstanding under the
Company’s 2000 Stock Incentive Plan (the “Eligible
Options”), held by eligible optionholders for new options
to purchase shares of the Company’s common stock to be
granted under the Company’s 2000 Stock Incentive Plan (the
“New Options”), upon the terms and subject to the
conditions set forth in the Offer. The Company’s executive
officers and members of its board of directors are not eligible
optionholders under the Offer. The number of shares of common
stock subject to the New Options will be equal to the
2.
quotient of the number of shares of common stock subject to the
Eligible Options that are accepted for exchange and cancelled,
divided by the applicable exchange ratio as set forth in the
Offer. The information set forth in the Offer under
“Summary of Terms,” Section 1 (“Number of
Options; Expiration Date”), Section 5
(“Acceptance of Eligible Options for Exchange and
Cancellation and Issuance of New Options”) and
Section 8 (“Source and Amount of Consideration; Terms
of New Option Grants”) is incorporated herein by reference.
(c) Trading Market and Price. The information set
forth in the Offer under Section 7 (“Price Range of
Common Stock”) is incorporated herein by reference.
ITEM 3. IDENTITY AND
BACKGROUND OF FILING PERSON.
(a) Name and Address. The information set forth
under Item 2(a) above and on Appendix A of the Offer
(“Information about the Directors and Executive Officers of
Pharmion”) is incorporated herein by reference.
ITEM 4. TERMS OF THE
TRANSACTION.
(a) Material Terms. The information set forth in the
Offer under “Summary of Terms,” Section 1
(“Number of Options; Expiration Date”), Section 3
(“Procedures”), Section 4 (“Change in
Election”), Section 5 (“Acceptance of Eligible
Options for Exchange and Cancellation and Issuance of New
Options”), Section 6 (“Conditions of this
Offer”), Section 8 (“Source and Amount of
Consideration; Terms of New Option Grants”),
Section 10 (“Status of Options Acquired by Us in this
Offer; Accounting Consequences of this Offer”),
Section 11 (“Legal Matters; Regulatory
Approvals”), Section 12 (“Material
U.S. Federal Income Tax Consequences”),
Section 13 (“Terms of the Offer Specific to Eligible
Employees Employed Outside the United States”),
Section 14 (“Extension of this Offer; Termination;
Amendment”) and Appendix B of the Offer (“A Guide
to International Issues”) is incorporated herein by
reference.
(b) Purchases. The information set forth in the
Offer under Section 9 (“Interests of Directors and
Executive Officers; Transactions and Arrangements Involving
Stock Options”) is incorporated herein by reference.
ITEM 5. PAST CONTACTS,
TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a) Agreements Involving the Subject Company’s
Securities. The information set forth in the Offer under
Section 9 (“Interests of Directors and Executive
Officers; Transactions and Arrangements Involving Stock
Options”) is incorporated herein by reference.
ITEM 6. PURPOSES OF THE
TRANSACTION AND PLANS OR PROPOSALS.
(a) Purposes. The information set forth in the Offer
under “Summary of Terms” and Section 2
(“Purpose of this Offer”) is incorporated herein by
reference.
(b) Use of Securities Acquired. The information set
forth in the Offer under Section 10 (“Status of
Options Acquired by Us in this Offer; Accounting Consequences of
this Offer”) is incorporated herein by reference.
(c) Plans. The Company from time to time evaluates
strategic acquisitions and will continue to do so in the future.
The Company may issue its stock or pay cash in connection with
such acquisitions. The Company may obtain cash for such
acquisitions through a variety of means, including, without
limitation, through the issuance of additional stock. The
information set forth in the Offer under Section 9
(“Interest of Directors and Executive Officers;
Transactions and Arrangements Involving Stock Options”) is
incorporated herein by reference.
3.
ITEM 7. SOURCE AND AMOUNTS OF
FUNDS OR OTHER CONSIDERATION.
(a) Source of Funds. The information set forth in
the Offer under Section 8 (“Source and Amount of
Consideration; Terms of New Option Grants”) and
Section 15 (“Fees and Expenses”) is incorporated
herein by reference.
(b) Conditions. The information set forth in the
Offer under Section 6 (“Conditions of this
Offer”) is incorporated herein by reference.
(d) Borrowed Funds. Not applicable.
ITEM 8. INTEREST IN
SECURITIES OF THE SUBJECT COMPANY.
(a) Securities Ownership. The information set forth
in the Offer under Section 9 (“Interests of Directors
and Executive Officers; Transactions and Arrangements Involving
the Options”) is incorporated herein by reference.
(b) Securities Transactions. The information set
forth in the Offer under Section 9 (“Interests of
Directors and Executive Officers; Transactions and Arrangements
Involving the Options”) is incorporated herein by reference.
ITEM 9. PERSONS/ ASSETS,
RETAINED, EMPLOYED, COMPENSATED OR USED.
Not applicable.
ITEM 10. FINANCIAL
STATEMENTS.
(a) Financial Information. The financial information
included in Item 8 (“Financial Statements and
Supplementary Data”) of Pharmion’s Annual Report on
Form 10-K for the
fiscal year ended December 31, 2005, filed on
March 16, 2006, including all material incorporated by
reference therein, is incorporated herein by reference. The
information set forth in the Offer under Section 16
(“Information about Pharmion”), Section 17
(“Risk Factors”) and Section 18 (“Additional
Information”) is incorporated herein by reference.
(b) Pro Forma Financial Information. Not applicable.
ITEM 11. ADDITIONAL
INFORMATION.
(a) Agreements, Regulatory Requirements and Legal
Proceedings. The information set forth in the Offer under
Section 9 (“Interests of Directors and Executive
Officers; Transactions and Arrangements Involving Stock
Options”) and Section 11 (“Legal Matters;
Regulatory Approvals”) is incorporated herein by reference.
(b) Other Material Information. Not applicable.
4.
ITEM 12. EXHIBITS.
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| Exhibit |
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Description |
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99.(a)(1)(A) |
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Offer to Exchange Outstanding Options to Purchase Common Stock,
dated April 19, 2006. |
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99.(a)(1)(B) |
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Form of Stock Option Exchange Election Form. |
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99.(a)(1)(C) |
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Form of Transmittal Memorandum. |
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99.(a)(1)(D)* |
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Text of an email message to Pharmion employees from Pam
Herriott, Vice President, Human Resources of Pharmion, dated
February 14, 2006. |
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99.(a)(1)(E)** |
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Text of an email message to employees of Pharmion with the title
of Vice President or Director from Pam Herriott, Vice President,
Human Resources of Pharmion, dated February 28, 2006. |
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99.(a)(1)(F) |
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Current Report on Form 8-K filed with the Securities and
Exchange Commission on February 15, 2006, and incorporated
herein by reference. |
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99.(a)(1)(G) |
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Text of an email message to employees of Pharmion with the title
of Manager, Vice President or Director from Steve Dupont,
General Counsel, dated April 19, 2006. |
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99.(a)(1)(H) |
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Text of an email message to Pharmion Employees Eligible to
Participate in the Option Exchange Program with a copy to
Employee Managers, Vice Presidents and Directors from Pam
Herriott, Vice President, Human Resources of Pharmion, dated
April 19, 2006. |
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99.(a)(1)(I) |
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Pharmion Corporation’s Annual Report on Form 10-K for
its fiscal year ended December 31, 2005, filed with the
Securities and Exchange Commission on March 16, 2006, and
incorporated herein by reference. |
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99.(b) |
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Not applicable. |
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99.(d)(1) |
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Pharmion Corporation Amended and Restated 2000 Stock Incentive
Plan, incorporated herein by reference to the indicated exhibit
in Pharmion Corporation’s Annual Report on Form 10-K
for its fiscal year ended December 31, 2005, filed with the
Securities and Exchange Commission on March 16, 2006, as
Exhibit 10.35. |
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99.(d)(2) |
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Form of Non-Qualified Stock Option Agreement |
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99.(d)(3) |
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Form of Non-Qualified Stock Option Agreement (Italy) |
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99.(d)(4) |
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Form of Disclaimer to Equity Award Agreements under the 2000
Stock Incentive Plan, as amended and restated |
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99.(g) |
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Not applicable. |
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99.(h) |
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Not applicable. |
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* |
Previously filed with the Preliminary Communications on
Schedule TO-C filed with the Securities and Exchange
Commission on February 15, 2006, and incorporated herein by
reference. |
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Previously filed with the Preliminary Communications on
Schedule TO-C filed with the Securities and Exchange
Commission on February 28, 2006, and incorporated herein by
reference. |
ITEM 13. INFORMATION REQUIRED
BY SCHEDULE 13E-3.
Not applicable.
5.
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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Erle T. Mast |
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Its: |
Chief Financial Officer |
Dated: April 19, 2006
6.
INDEX OF EXHIBITS
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| Exhibit |
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| Number |
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Description |
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99.(a)(1)(A) |
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Offer to Exchange Outstanding Options to Purchase Common Stock,
dated April 19, 2006. |
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99.(a)(1)(B) |
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Form of Stock Option Exchange Election Form. |
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99.(a)(1)(C) |
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Form of Transmittal Memorandum. |
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99.(a)(1)(D)* |
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Text of an email message to Pharmion employees from Pam
Herriott, Vice President, Human Resources of Pharmion, dated
February 14, 2006. |
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99.(a)(1)(E)** |
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Text of an email message to employees of Pharmion with the title
of Vice President or Director from Pam Herriott, Vice President,
Human Resources of Pharmion, dated February 28, 2006. |
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99.(a)(1)(F) |
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Current Report on Form 8-K filed with the Securities and
Exchange Commission on February 15, 2006, and incorporated
herein by reference. |
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99.(a)(1)(G) |
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Text of an email message to employees of Pharmion with the title
of Manager, Vice President or Director from Steve Dupont,
General Counsel, dated April 19, 2006. |
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99.(a)(1)(H) |
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Text of an email message to Pharmion Employees Eligible to
Participate in the Option Exchange Program with a copy to
Employee Managers, Vice Presidents and Directors from Pam
Herriott, Vice President, Human Resources of Pharmion, dated
April 19, 2006. |
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99.(a)(1)(I) |
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Pharmion Corporation’s Annual Report on Form 10-K for
its fiscal year ended December 31, 2005, filed with the
Securities and Exchange Commission on March 16, 2006, and
incorporated herein by reference. |
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99.(b) |
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Not applicable. |
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99.(d)(1) |
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Pharmion Corporation Amended and Restated 2000 Stock Incentive
Plan, incorporated herein by reference to the indicated exhibit
in Pharmion Corporation’s Annual Report on Form 10-K
for its fiscal year ended December 31, 2005, filed with the
Securities and Exchange Commission on March 16, 2006, as
Exhibit 10.35. |
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99.(d)(2) |
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Form of Non-Qualified Stock Option Agreement |
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99.(d)(3) |
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Form of Non-Qualified Stock Option Agreement (Italy) |
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99.(d)(4) |
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Form of Disclaimer to Equity Award Agreements under the 2000
Stock Incentive Plan, as amended and restated |
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99.(g) |
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Not applicable. |
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99.(h) |
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Not applicable. |
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* |
Previously filed with the Preliminary Communications on
Schedule TO-C filed with the Securities and Exchange
Commission on February 15, 2006, and incorporated herein by
reference. |
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| ** |
Previously filed with the Preliminary Communications on
Schedule TO-C filed with the Securities and Exchange
Commission on February 28, 2006, and incorporated herein by
reference. |