Roche said today it will extend for a second time its tender offer for shares of Spark Therapeutics, the gene therapy developer it wants to acquire for $4.8 billion, as the pharma giant falls further short of the number of shares it needs to pull off the deal.

Roche acknowledged that as of yesterday, shareholders representing just approximately 26.1% of Spark Therapeutics’ outstanding shares had been validly tendered and received. That’s a retreat from the 29.4% of Spark shares tendered as of April 2, a day before Roche announced its first tender-offer extension—let alone the 50% of Spark shares required for completion of the acquisition.

Roche has offered to acquire all outstanding shares of Spark Therapeutics’ common stock at a price of $114.50 per share in cash—a premium of 122% over Spark’s closing price on February 22, the last trading day before the deal was announced on February 25.

Today Roche extended the deadline for its tender offer from midnight Eastern Daylight Time on May 2, to 5 p.m. Eastern Daylight Time on June 3.

In announcing plans to acquire Spark Therapeutics for $4.8 billion, Roche said the deal would benefit it by enabling it to expand into gene therapy with the marketed Luxturna™ (voretigene neparvovec-rzyl) and a pipeline of other gene therapies. Spark Therapeutics CEO Jeffrey D. Marrazzo said at the time that the deal made sense for his company because Roche’s worldwide reach and resources would help accelerate the development of Spark’s gene therapies.

Litigation over valuation

However, several lawsuits have been filed by Spark Therapeutics shareholders against the company, contending that the proposed acquisition undervalues their shares. On April 15, the law firm Halper Sadeh announced the filing of a class-action lawsuit, while earlier news reports had cited three lawsuits as of April 3.

Roche has balked at raising its share price offer: “Our offer price is full and fair,” Roche has insisted in a regulatory filing that noted that Spark’s Board of Directors has approved the deal, and unanimously agreed to recommend it to its shareholders.

The U.S. Federal Trade Commission is reviewing the proposed acquisition.

“The review of the transaction is ongoing, and the parties are actively working with the government to facilitate that process,” Roche stated today.

Roche and Spark said they will again withdraw and re-file its Premerger Notification and Report Form under the Hart-Scott-Rodino, “in order to provide the government with additional time to complete its current review.”

The companies intend to refile that paperwork “on or about May 9, touching off a 15-day waiting period that will end May 24.

“We expect the transaction to close this quarter still in the first half of 2019,” Roche CEO Severin Schwan said April 17 on the conference call following release of first-quarter 2019 results, according to a transcript published by Seeking Alpha.

Along with that release, Roche has said the acquisition of Spark Therapeutics is not expected to have an impact on its 2019 financial guidance—which Roche raised last week by saying it now expects sales to grow “in the mid-single digit range,” up from the “low- to mid-single digit range” projected on January 31.

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