UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Amendment No. 2)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
THERAPEUTICSMD, INC.
(Name of Subject Company (Issuer))
ATHENE MERGER SUB, INC.
(Offeror)
A wholly owned subsidiary of
ATHENE PARENT, INC.
(Parent of Offeror)
ATHENE FINCO, INC.
ATHENE HOLDCO, INC.
MAJORELLE TOPCO LIMITED
ATLAS FUND 2 HOLDCO L.P.
ATLAS FUND 2 HOLDCO GP LLC
EW HEALTHCARE PARTNERS FUND 2, L.P.
EW HEALTHCARE PARTNERS FUND 2-A, L.P.
EW HEALTHCARE PARTNERS FUND 2-GP, L.P.
(Other Persons)
(Names of Filing Persons (identifying status as Offeror, Issuer or Other Person)
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class of Securities)
88338N206
(CUSIP Number of Class of Securities)
Evis Hursever
c/o EW Healthcare Partners
Berkeley Square House, Berkeley Square
London, UK W1J 6BR
+44 (0)20 7529 2500
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
Marshall P. Shaffer, P.C.
Tim Cruickshank, P.C.
Michael Amalfe
Joshua Ayal
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
(212) 446-4800
| ☒ | 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: $8,616.16 | Filing Party: Athene Merger Sub, Inc. | |
| Form of Registration No.: Schedule TO (File No. 005-32384) | Date Filed: June 6, 2022 |
| ☐ | 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. |
| ☐ | 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 appropriate boxes below to designate any transactions to which the statement relates: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| ☐ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ☐ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission (the “SEC”) on June 6, 2022 (as amended on June 23, 2022, the “Schedule TO”) by Athene Merger Sub, Inc., a Nevada corporation (the “Offeror”), and Athene Parent, Inc., a Nevada corporation and the parent of the Offeror. The Schedule TO relates to the tender offer for all of the issued and outstanding shares of common stock, par value $0.001 per share (the “Shares”), of TherapeuticsMD, Inc., at a price of $10.00 per Share, net to the seller in cash without interest and subject to any required withholding taxes, upon the terms and conditions set forth in the offer to purchase, dated June 6, 2022 (the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A) to the Schedule TO, and in the related letter of transmittal, a copy of which is attached as Exhibit (a)(1)(B) to the Schedule TO.
Except as otherwise set forth in this Amendment, 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. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Offer to Purchase or in the Schedule TO, as applicable.
This Amendment is being filed to amend and supplement Items 1, 4, 6 and 11, and Item 12, as reflected below.
Items 1, 4, 6 and 11.
Items 1, 4, 6 and 11 of the Schedule TO, as amended, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as set forth below:
On July 6, 2022, Purchaser announced an extension of the Offer Expiration Time until one minute after 11:59 p.m., New York City time, on July 12, 2022, unless further extended or earlier terminated in accordance with the Merger Agreement and the applicable rules and regulations of the SEC. The Offer was previously scheduled to expire one minute after 11:59 p.m., New York City time, on July 5, 2022.
The Depositary and Paying Agent has advised Purchaser that, as of 6:30 p.m., New York City time, on July 5, 2022, approximately 2,584,893 Shares have been validly tendered and not properly withdrawn pursuant to the Offer, representing approximately 29.2% of the outstanding Shares.
Parent and Purchaser expect the Offer will be consummated promptly following the Offer Expiration Time (as hereby extended), subject to the satisfaction or waiver of the remaining conditions to the consummation of the Offer set forth in the Merger Agreement.
The press release announcing the extension of the Offer is attached hereto as Exhibit (a)(5)(D).
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
Exhibit | Description | |
| (a)(5)(D) | Press Release issued by EW Healthcare Partners, dated July 6, 2022. | |
Amendments to the Offer to Purchase and the Other Exhibits to the Schedule TO
The information set forth in the Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, as amended, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, is hereby amended and supplemented as follows: All references in the Offer to Purchase (Exhibit (a)(1)(A)), Letter of Transmittal (Exhibits (a)(1)(B)(I) and (a)(1)(B)(II)), Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(C)), Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(D)) and Letter from the Information Agent to Robinhood Customer (Exhibit (a)(5)(C)) of the expiration date of the Offer being “one minute after 11:59 p.m., New York City time, on July 5, 2022” are amended and replaced with “one minute after 11:59 p.m., New York City time, on July 12, 2022.”
SIGNATURE
After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
| ATHENE MERGER SUB, INC. | ||
| By | /s/ Scott Barry | |
| Name: | Scott Barry | |
| Title: | Co-President | |
| Date: | July 6, 2022 | |
| ATHENE PARENT, INC. | ||
| By | /s/ Scott Barry | |
| Name: | Scott Barry | |
| Title: | Co-President | |
| Date: | July 6, 2022 | |
| ATHENE FINCO, INC. | ||
| By | /s/ Scott Barry | |
| Name: | Scott Barry | |
| Title: | Co-President | |
| Date: | July 6, 2022 | |
| ATHENE HOLDO, INC | ||
| By | /s/ Scott Barry | |
| Name: | Scott Barry | |
| Title: | Co-President | |
| Date: | July 6, 2022 | |
| MAJORELLE TOPCO LIMITED | ||
| By | /s/ Scott Barry | |
| Name: | Scott Barry | |
| Title: | Director | |
| Date: | July 6, 2022 | |
| ATLAS FUND 2 HOLDCO L.P. | ||
| By: | ATLAS FUND its 2 HOLDCO GP LLC, General Partner | |
| By | /s/ Petri Vainio | |
| Name: | Petri Vainio | |
| Title: | Director | |
| Date: | July 6, 2022 | |
| ATLAS FUND 2 HOLDCO GP, LLC | ||
| By | /s/ Petri Vainio | |
| Name: | Petri Vainio | |
| Title: | Director | |
| Date: | July 6, 2022 | |
| EW HEALTHCARE PARTNERS FUND 2, L.P. | ||
| By: | EW HEALTHCARE PARTNERS FUND 2-GP, L.P., its General Partner | |
| By: | EW HEALTHCARE PARTNERS FUND 2-UGP, L.P., its General Partner | |
| By | /s/ Petri Vainio | |
| Name: | Petri Vainio | |
| Title: | General Partner | |
| Date: | July 6, 2022 | |
| EW HEALTHCARE PARTNERS FUND 2-A, L.P. | ||
| By: | EW HEALTHCARE PARTNERS FUND 2-GP, L.P. | |
| By: | EW HEALTHCARE PARTNERS FUND 2-UGP, L.P., its General Partner | |
| By | /s/ Petri Vainio | |
| Name: | Petri Vainio | |
| Title: | General Partner | |
| Date: | July 6, 2022 | |
| EW HEALTHCARE PARTNERS FUND 2-GP, L.P. | ||
| By: | EW HEALTHCARE PARTNERS FUND 2-UGP, L.P., its General Partner | |
| By | /s/ Petri Vainio | |
| Name: | Petri Vainio | |
| Title: | General Partner | |
| Date: | July 6, 2022 | |
EXHIBIT INDEX
| * | Previously filed. |
| ** | Filed herewith. |
