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
VERENIUM CORPORATION
(Name of Subject Company (Issuer) and Filing Person (as Offeror))
5.5% Convertible Senior Notes due 2027
(Title of Class of Securities)
92340PAA8
(CUSIP Number of Class of Securities)
Alexander A. Fitzpatrick, Esq.
Senior Vice President and General Counsel
Verenium Corporation
4955 Directors Place, San Diego, California 92121
(858) 431-8500
(Name, address, and telephone number of person authorized to receive notices and communications on behalf of filing persons)
With a copy to:
Matthew T. Browne, Esq.
Cooley LLP
4401 Eastgate Mall
San Diego, California 92121
(858) 550-6000
CALCULATION OF FILING FEE
| | |
|
| Transaction Valuation(1) | | Amount of Filing Fee(2) |
| $35,798,754 | | $4,103 |
|
|
| (1) | Calculated solely for purposes of determining the filing fee. The purchase price of the 5.5% Convertible Senior Notes due 2027, or the Notes, as described herein, is $1,000 per $1,000 principal amount of the Notes, plus accrued and unpaid interest to, but not including, the repurchase date. As of March 5, 2012, there was $34,851,000 in aggregate principal amount of Notes outstanding, resulting in an aggregate maximum purchase price of $35,798,754. |
| (2) | The amount of the filing fee was calculated at a rate of $114.60 per $1,000,000 of transaction value. |
| ¨ | 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: Not applicable. | | Filing Party: Not applicable. |
| Form or Registration No.: Not applicable. | | Date Filed: Not applicable. |
| ¨ | 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 to Rule 14d-1. |
| | þ | 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: ¨
TABLE OF CONTENTS
INTRODUCTORY STATEMENT
Pursuant to the terms of and subject to the conditions set forth in the Indenture (the“Indenture”), dated as of March 28, 2007, between Verenium Corporation, a Delaware corporation (formerly known as Diversa Corporation) (the “Company”), and Wells Fargo Bank, National Association, as trustee (the “Trustee”), relating to the Company’s 5.5% Convertible Senior Notes due 2027 (the “Notes”), this Tender Offer Statement on Schedule TO (“Schedule TO”) is filed by the Company with respect to the right of each holder of the Notes (each, a “Holder”), to sell and the obligation of the Company to repurchase the Notes (the “Put Option”), as set forth in the Company Notice to Holders of the Notes, dated March 5, 2012 (the “Company Notice”), and the related notice materials filed as exhibits to this Schedule TO (which Company Notice and related notice materials, as amended or supplemented from time to time, collectively constitute the “Option Documents”).
This Schedule TO is intended to satisfy the disclosure requirements of Rules 13e-4(c)(2) and 13e-4(d)(1) under the Securities Exchange Act of 1934, as amended.
Items 1 through 4 and 6, 8 and 9.
The Company is the issuer of the Notes and, subject to the satisfaction of the Closing Condition (as defined below), will repurchase all of the Notes, or such portions thereof in integral multiples of $1,000 in principal, that are properly tendered by the Holders under the terms and subject to the conditions set forth in the Indenture and the Option Documents. The Notes are convertible into shares of common stock, $0.001 par value per share, of the Company (“Common Stock”), subject to the terms, conditions and adjustments specified in the Indenture and the Notes.
The Company’s repurchase of the Notes upon the exercise by any Holder of the Put Option is subject to a financing condition and the Company having sufficient cash resources prior to 11:00 a.m. New York City time on April 2, 2012 to repurchase the Notes (the “Closing Condition”).Pursuant to Section 3.08 of the Indenture and paragraph 8 of the Notes, each Holder has an option to require the Company to repurchase all or a portion of its Notes on April 1, 2012, however, since April 1, 2012 is a Sunday, the terms of the Indenture provide that the Company will repurchase all Notes that have been validly delivered on April 2, 2012, the first business day following April 1, 2012. While the scheduled repurchase date of the Notes is on April 2, 2012, the Company reserves the right, subject to compliance with applicable law, to extend the period of time during which the Company’s offer to Holders to exercise the Put Option is open, as more thoroughly described in the Company Notice.
As of the date of this Schedule TO, based on current cash resources, the Company does not have sufficient funds to repurchase the Notes in the event all Holders exercise the Put Option. If all Holders exercise the Put Option, the Company will need $34,851,000 plus any accrued and unpaid interest up to, but excluding, the repurchase date to satisfy its obligations to repurchase the Notes.The Company is considering two primary alternatives that would enable the Company to satisfy the Closing Condition and have sufficient cash resources to repurchase the Notes upon any exercise by all Holders of the Put Option. The Company is exploring issuing new equity-linked or equity securities as a potential means to satisfy the Closing Condition and have sufficient cash resources to repurchase the Notes upon any exercise by all Holders of the Put Option. There can be no assurance that the Company will be able to obtain any sources of financing. The Company has also received non-binding proposals from more than one prospective purchaser to acquire 100 percent of the stock of the Company, and is actively evaluating options for a potential sale of the Company. There can be no assurance that the Company will be able to negotiate and enter into definitive agreements related to a sale of the Company.
3
The Company maintains its principal executive offices at 4955 Directors Place, San Diego, CA 92121 (telephone number (858) 431-8500).
As permitted by General Instruction F to Schedule TO, all of the information set forth in the Option Documents is incorporated by reference into this Schedule TO.
| Item 5. | Past Contacts, Transactions, Negotiations and Agreements. |
(e) In addition to the Indenture and the Notes, the Company is party to the agreements and plans listed under Item 12 with respect to its securities. For a description of the material terms of such agreements and plans, see the Form 8-K, Form 10-K, Form S-1, Form S-8 or Schedule 14-A, as applicable, to which such agreement or plan has been filed, as indicated on the exhibit list under Item 12 of this Schedule TO, which are accessible free of charge through the Securities and Exchange Commission’s website atwww.sec.gov.
| Item 7. | Source and Amount of Funds or Other Consideration. |
(a) As of the date of this Schedule TO, based on current cash resources, the Company does not have sufficient funds to repurchase the Notes in the event all Holders exercise the Put Option. If all Holders exercise the Put Option, the Company will need $34,851,000 plus any accrued and unpaid interest up to, but excluding, the repurchase date to satisfy its obligations to repurchase the Notes. The Company is considering two primary alternatives that would enable the Company to satisfy the Closing Condition and have sufficient cash resources to repurchase the Notes upon any exercise by all Holders of the Put Option. The Company is exploring issuing new equity-linked or equity securities as a potential means to satisfy the Closing Condition and have sufficient cash resources to repurchase the Notes upon any exercise by all Holders of the Put Option. There can be no assurance that the Company will be able to obtain any sources of financing. The Company has also received non-binding proposals from more than one prospective purchaser to acquire 100 percent of the stock of the Company, and is actively evaluating options for a potential sale of the Company. There can be no assurance that the Company will be able to negotiate and enter into definitive agreements related to a sale of the Company.
(b) If the Holders elect to exercise the Put Option and the Company is unable to satisfy the Closing Condition, the Holders, either directly or through the Trustee, may pursue any and all remedies available to them under the Indenture, at law or in equity. Such remedies may include declaring the principal and unpaid accrued interest under the Notes immediately due and payable, triggering the Holders’ right to receive special interest on the Notes, or forcing the Company into involuntary bankruptcy, reorganization or insolvency proceedings under applicable law. In the event the Holders pursue any such remedies, the Company will likely need to take one or several of the following actions: deferring, reducing or eliminating significant planned expenditures, restructuring or significantly curtailing operations, negotiating and attempting to restructure the terms of its obligations under the Notes with the Holders, which if successful, could cause the Company to issue substantial amounts of equity in exchange for the Notes, or ceasing operations. The Company may also choose in the circumstances described to voluntarily initiate proceedings under applicable bankruptcy, reorganization or insolvency laws.
(d) Not applicable.
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| Item 10. | Financial Statements. |
(a)Financial Information. The information set forth in Item 8 (“Financial Statements and Supplementary Data”) of the Company’s Annual Report on Form 10-K for the year ended December 31, 2011 and Part I, Item 1 (“Condensed Consolidated Financial Statements (Unaudited)” and “Notes to Condensed Consolidated Financial Statements”) of the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2011 is incorporated herein by reference, which are accessible free of charge through the Securities and Exchange Commission’s website atwww.sec.gov.
The information set forth in Exhibits (a)(5)(2) and (a)(5)(3) attached hereto is incorporated herein by reference.
(b)Pro Forma Information. The information set forth in Exhibit (a)(5)(4) attached hereto is incorporated herein by reference.
| Item 11. | Additional Information. |
(a) Not applicable.
(c) Not applicable.
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Exhibit
Number | | Description |
| |
| (a)(1) | | Company Notice to Holders of 5.5% Convertible Senior Notes due 2027, dated March 5, 2012. |
| |
| (a)(5)(1) | | Press release issued on March 5, 2012. |
| |
| (a)(5)(2) | | Ratio of earnings to fixed charges. |
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| (a)(5)(3) | | Book value per share as of December 31, 2011. |
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| (a)(5)(4) | | Pro forma information. |
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| (d)(1) | | Indenture, dated March 28, 2007, between the Company and Wells Fargo Bank, National Association, a national banking association, as trustee, including Form of 5.50% Convertible Senior Note due 2027—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on March 28, 2007, and incorporated herein by reference. |
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| (d)(2) | | Registration Rights Agreement, dated March 28, 2007, among the Company and the Initial Purchasers identified therein—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on March 28, 2007, and incorporated herein by reference. |
| |
| (d)(3) | | Form of Warrant issued by the Company to Syngenta Participations AG—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on January 6, 2003, and incorporated herein by reference. |
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| (d)(4) | | Form of Warrant—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on February 25, 2008, and incorporated herein by reference. |
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| (d)(5) | | Form of Registration Rights Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on February 25, 2008, and incorporated herein by reference. |
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| (d)(6) | | Form of Warrant—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on October 6, 2009 and incorporated herein by reference. |
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| (d)(7) | | Form of Warrant—filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2011, filed with the Securities and Exchange Commission on March 2, 2012, and incorporated herein by reference. |
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| (d)(8) | | 1997 Equity Incentive Plan—filed as an exhibit to the Company’s Registration Statement on Form S-1 (No. 333-92853), filed with the Securities and Exchange Commission, and incorporated herein by reference. |
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| (d)(9) | | Form of Stock Option Grant Notice and Stock Option Agreement under the 1997 Equity Incentive Plan—filed as an exhibit to the Company’s Registration Statement on Form S-1 (No. 333-92853), filed with the Securities and Exchange Commission, and incorporated herein by reference. |
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| (d)(10) | | 2005 Non-Employee Directors’ Equity Incentive Plan—filed as an exhibit to the Company’s Proxy Statement on Form Schedule 14-A (File No. 000-29173), filed with the Securities and Exchange Commission on April 15, 2005, and incorporated herein by reference. |
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| (d)(11) | | Verenium 2007 Equity Incentive Plan—filed as an exhibit to the Company’s Registration Statement on Form S-8 (File No. 333-145062), filed with the Securities and Exchange Commission on August 2, 2007, and incorporated herein by reference. |
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Exhibit
Number | | Description |
| |
| (d)(12) | | Form of Executive Officer 2007 Equity Incentive Plan Option Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
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| (d)(13) | | Form of Non-Executive Employee and Consultant 2007 Equity Incentive Plan Option Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
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| (d)(14) | | Form of Stock Option Grant Notice and Form of Exercise for use in connection with Executive Officer 2007 Equity Incentive Plan Option Agreement and Non-Executive Employee and Consultant 2007 Equity Incentive Plan Option Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
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| (d)(15) | | Form of Executive Officer 2007 Equity Incentive Plan Restricted Stock Bonus Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
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| (d)(16) | | Form of Non-Executive Employee and Consultant 2007 Equity Incentive Plan Restricted Stock Bonus Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
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| (d)(17) | | Form of Restricted Stock Bonus Grant Notice for use in connection with Executive Officer 2007 Equity Incentive Plan Restricted Stock Bonus Agreement and Non-Executive Employee and Consultant 2007 Equity Incentive Plan Restricted Stock Bonus Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
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| (g) | | Not applicable. |
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| (h) | | Not applicable. |
| Item 13. | Information Required by Schedule 13E-3. |
Not applicable.
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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.
| | | | | | |
| Date: March 5, 2012 | | | | VERENIUM CORPORATION |
| | | |
| | | | By: | | /s/ ALEXANDER A. FITZPATRICK |
| | | | | | Alexander A. Fitzpatrick, Esq. Senior Vice President and General Counsel |
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EXHIBIT INDEX
| | |
Exhibit
Number | | Description |
| |
| (a)(1) | | Company Notice to Holders of 5.5% Convertible Senior Notes due 2027, dated March 5, 2012. |
| |
| (a)(5)(1) | | Press release issued on March 5, 2012. |
| |
| (a)(5)(2) | | Ratio of earnings to fixed charges. |
| |
| (a)(5)(3) | | Book value per share as of December 31, 2011. |
| |
| (a)(5)(4) | | Pro forma information. |
| |
| (d)(1) | | Indenture, dated March 28, 2007, between the Company and Wells Fargo Bank, National Association, a national banking association, as trustee, including Form of 5.50% Convertible Senior Note due 2027—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on March 28, 2007, and incorporated herein by reference. |
| |
| (d)(2) | | Registration Rights Agreement, dated March 28, 2007, among the Company and the Initial Purchasers identified therein—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on March 28, 2007, and incorporated herein by reference. |
| |
| (d)(3) | | Form of Warrant issued by the Company to Syngenta Participations AG—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on January 6, 2003, and incorporated herein by reference. |
| |
| (d)(4) | | Form of Warrant—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on February 25, 2008, and incorporated herein by reference. |
| |
| (d)(5) | | Form of Registration Rights Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on February 25, 2008, and incorporated herein by reference. |
| |
| (d)(6) | | Form of Warrant—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on October 6, 2009 and incorporated herein by reference. |
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| (d)(7) | | Form of Warrant—filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2011, filed with the Securities and Exchange Commission on March 2, 2012, and incorporated herein by reference. |
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| (d)(8) | | 1997 Equity Incentive Plan—filed as an exhibit to the Company’s Registration Statement on Form S-1 (No. 333-92853), filed with the Securities and Exchange Commission, and incorporated herein by reference. |
| |
| (d)(9) | | Form of Stock Option Grant Notice and Stock Option Agreement under the 1997 Equity Incentive Plan—filed as an exhibit to the Company’s Registration Statement on Form S-1 (No. 333-92853), filed with the Securities and Exchange Commission, and incorporated herein by reference. |
| |
| (d)(10) | | 2005 Non-Employee Directors’ Equity Incentive Plan—filed as an exhibit to the Company’s Proxy Statement on Form Schedule 14-A (File No. 000-29173), filed with the Securities and Exchange Commission on April 15, 2005, and incorporated herein by reference. |
| |
| (d)(11) | | Verenium 2007 Equity Incentive Plan—filed as an exhibit to the Company’s Registration Statement on Form S-8 (File No. 333-145062), filed with the Securities and Exchange Commission on August 2, 2007, and incorporated herein by reference. |
| | |
Exhibit
Number | | Description |
| |
| (d)(12) | | Form of Executive Officer 2007 Equity Incentive Plan Option Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
| |
| (d)(13) | | Form of Non-Executive Employee and Consultant 2007 Equity Incentive Plan Option Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
| |
| (d)(14) | | Form of Stock Option Grant Notice and Form of Exercise for use in connection with Executive Officer 2007 Equity Incentive Plan Option Agreement and Non-Executive Employee and Consultant 2007 Equity Incentive Plan Option Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
| |
| (d)(15) | | Form of Executive Officer 2007 Equity Incentive Plan Restricted Stock Bonus Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
| |
| (d)(16) | | Form of Non-Executive Employee and Consultant 2007 Equity Incentive Plan Restricted Stock Bonus Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
| |
| (d)(17) | | Form of Restricted Stock Bonus Grant Notice for use in connection with Executive Officer 2007 Equity Incentive Plan Restricted Stock Bonus Agreement and Non-Executive Employee and Consultant 2007 Equity Incentive Plan Restricted Stock Bonus Agreement—filed as an exhibit to the Company’s Current Report on Form 8-K (File No. 000-29173), filed with the Securities and Exchange Commission on July 25, 2007, and incorporated herein by reference. |
| |
| (g) | | Not applicable. |
| |
| (h) | | Not applicable. |
