UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE TO

(Amendment No. 2)

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR SECTION 13(e)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

Orchid Cellmark Inc.

(Name of Subject Company (Issuer))

OCM Acquisition Corp.

Laboratory Corporation of America Holdings

(Name of Filing Persons (Offeror))

 

 

Common Stock, par value $0.001 per share,

and, to the extent outstanding, associated preferred stock purchase rights

(Title of Class of Securities)

68573C107

(CUSIP Number of Class of Securities)

F. Samuel Eberts III

Senior Vice President and Chief Legal Officer

Laboratory Corporation of America Holdings

358 South Main Street

Burlington, North Carolina 27215

(336) 229-1127

(Name, address and telephone number of person authorized

to receive notices and communications on behalf of filing persons)

 

 

with copies to:

Michael J. Silver

John H. Booher

Hogan Lovells US LLP

100 International Drive, Suite 2000

Baltimore, Maryland 21202

(410) 659-2700

 

 

CALCULATION OF FILING FEE

 

Transaction Valuation*		Amount of Filing Fee**
$91,588,968.80		$10,633.48

 

*

Estimated solely for purposes of calculating the filing fee. This amount assumes the purchase of up to 32,710,346 shares of common stock, par value $0.001 per share, of Orchid Cellmark Inc., and the associated preferred stock purchase rights, at a purchase price of $2.80 per share. The number of shares represents the fully diluted number of shares of common stock outstanding consisting of (i) 29,992,186 shares of common stock outstanding on April 4, 2011, and (ii) 2,718,160 shares of common stock issuable under stock options outstanding on April 5, 2011.

**	The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Fee Rate Advisory #5 for fiscal year 2011, issued December 22, 2010, by multiplying the transaction valuation by 0.0001161.

 

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.

 

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Identify the previous filing by registration statement number or the Form or Schedule and the date of its filing.

 

Amount Previously Paid:		$10,633.48				Filing Party:		OCM Acquisition Corp. and Laboratory Corporation of America Holdings
Form or Registration No.:		Schedule TO				Date Filed:		April 19, 2011

 

¨	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.

 

¨	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: ¨

If applicable, check the appropriate boxes below to designate the appropriate rule provisions relied upon:

 

¨	Rule 13e-4(i) (Cross-Border Issuer Tender Offer)

 

¨	Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)

 

 

 

 

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This Amendment No. 2 (this “Amendment No. 2”) amends and supplements the Tender Offer Statement on Schedule TO (as previously amended and supplemented by Amendment No. 1 filed on April 20, 2011) filed with the Securities and Exchange Commission on April 19, 2011 (the “Schedule TO”) in connection with the offer by OCM Acquisition Corp., a Delaware corporation (“Purchaser”) and a wholly owned subsidiary of Laboratory Corporation of America Holdings, a Delaware corporation (“LabCorp”), to purchase all outstanding shares of common stock, par value $0.001 per share, of Orchid Cellmark Inc., a Delaware corporation (“Orchid Cellmark”), including, to the extent outstanding, the associated preferred stock purchase rights (the “Rights”) issued under the Rights Agreement, dated July 27, 2001, as amended, between Orchid Cellmark and American Stock Transfer & Trust Company, as rights agent (such Rights, to the extent outstanding, together with the shares of Orchid Cellmark’s common stock, the “Shares”), at a price of $2.80 per Share in cash, without interest and subject to applicable tax withholding, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated April 19, 2011 (the “Offer to Purchase”), a copy of which is filed with and attached to the Schedule TO as Exhibit (a)(1)(A) thereto, and the related Letter of Transmittal and instructions thereto, a copy of which is filed with and attached to the Schedule TO as Exhibit (a)(1)(B) thereto, as they may be amended or supplemented from time to time. This Amendment No. 2 is being filed on behalf of Purchaser and LabCorp.

The information set forth in the Schedule TO remains unchanged, except that such information is hereby amended and supplemented to the extent specifically provided herein. All capitalized terms used in this Amendment No. 2 without definition have the meanings ascribed to them in the Schedule TO.

 

Item 11.

Additional Information.

Item 11 of the Schedule TO is hereby amended and supplemented by adding the following paragraphs after the third paragraph of Section 15—“Certain Legal Matters—Legal Proceedings” of the Offer to Purchase:

“On April 21, 2011, the Court of Chancery for the State of Delaware entered an order consolidating the Silverberg and the Nannetti actions into an action styled In re Orchid Cellmark Inc. Shareholder Litigation (Consol. Civ. A. No. 6373-VCN) (the “Delaware Action”). The plaintiffs are expected to file a consolidated amended complaint in the Delaware Action.

On April 29, 2011, a putative class action lawsuit was filed by a single plaintiff in the Court of Chancery for the State of Delaware (Case No. 6433-VCN) against Orchid Cellmark, LabCorp, Purchaser, and individual members of Orchid Cellmark’s board of directors. The action, styled Bruce Locke vs. Orchid Cellmark Inc., et al., alleges that (i) individual members of Orchid Cellmark’s board of directors violated their fiduciary duties of good faith, loyalty, fair dealing, due care and candor owed to Orchid Cellmark’s stockholders by (a) failing to secure the best transaction available for Orchid Cellmark’s stockholders and (b) agreeing to unreasonable and preclusive deal protection measures that will deter superior offers for Orchid Cellmark, and (ii) LabCorp aided and abetted the individual defendants in the breach of their fiduciary duties by, among other things, (a) entering into the Merger Agreement and (b) otherwise rendering substantial assistance to Orchid Cellmark’s board of directors in connection with the breaches. The plaintiff seeks (i) to enjoin the acquisition of Orchid Cellmark by Purchaser and LabCorp, (ii) rescission, to the extent already implemented, of the acquisition of Orchid Cellmark by Purchaser and LabCorp, or alternatively, the awarding of rescissory damages and appropriate compensatory damages to Orchid Cellmark’s stockholders, (iii) to require the individual defendants to properly exercise their fiduciary duties to Orchid Cellmark’s stockholders, (iv) to require the individual defendants to disclose all material information relating to the proposed transaction and (v) fees and costs, among other relief.”

 

Item 12.

Exhibits.

Item 12 of the Schedule TO is hereby supplemented by adding the following exhibit:

 

(a)(5)(F)		Complaint filed on April 29, 2011 in the Court of Chancery of the State of Delaware, captioned Bruce Locke vs. Orchid Cellmark Inc., Eugene I. Davis, Stefan Loren, Ph.D., Nicole S. Williams, James M. Hart, Ph.D., Bruce

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		D. Dalziel, Laboratory Corporation of America Holdings, and OCM Acquisition Corp., C.A. No. 6433-VCN (incorporated by reference to Exhibit (a)(21) to Amendment No. 2 to the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Orchid Cellmark with the SEC on May 2, 2011).

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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.

 

Dated: May 2, 2011

 

Dated: May 2, 2011

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EXHIBIT INDEX

 

Exhibit No.		Exhibit
(a)(5)(F)		Complaint filed on April 29, 2011 in the Court of Chancery of the State of Delaware, captioned Bruce Locke vs. Orchid Cellmark Inc., Eugene I. Davis, Stefan Loren, Ph.D., Nicole S. Williams, James M. Hart, Ph.D., Bruce D. Dalziel, Laboratory Corporation of America Holdings, and OCM Acquisition Corp., C.A. No. 6433-VCN (incorporated by reference to Exhibit (a)(21) to Amendment No. 2 to the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Orchid Cellmark with the SEC on May 2, 2011).

.