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
CYMABAY THERAPEUTICS, INC.
(Name of Subject Company (Issuer))
PACIFIC MERGER SUB, INC.
a wholly owned subsidiary of
GILEAD SCIENCES, INC.
(Names of Filing Persons (Offeror))
Common Stock, Par Value $0.0001 Per Share
(Title of Class of Securities)
23257D103
(Cusip Number of Class of Securities)
Deborah H. Telman, Esq.
Executive Vice President, Corporate Affairs
and General Counsel
Gilead Sciences, Inc.
333 Lakeside Drive
Foster City, CA 94404
650-574-3000
(Name, Address and Telephone Number of Person Authorized
to
Receive Notices and Communications on Behalf of Filing Persons)
With copies to:
Paul S. Scrivano
Davis Polk & Wardwell LLP
1600 El Camino Real
Menlo Park, CA 94025
(650) 752-2008 |
Cheryl Chan
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4503 |
| ☒ | 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 following box if the filing
is a final amendment reporting the results of the tender offer. ☐
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 filing relates solely to preliminary
communications made before the commencement of a tender offer by Pacific Merger Sub, Inc., a Delaware corporation (“Purchaser”)
and a wholly owned subsidiary of Gilead Sciences, Inc., a Delaware corporation (“Parent”), to acquire all of the outstanding
shares of common stock of CymaBay Therapeutics, Inc., a Delaware corporation (the “Company”), at a price of $32.50
per share, net to the seller in cash, without interest and subject to any withholding of taxes, pursuant to an Agreement and Plan of Merger,
dated February 11, 2024, among the Company, Parent and Purchaser.
FORWARD-LOOKING STATEMENTS
This communication contains forward-looking statements
related to Gilead Sciences, Inc. (“Gilead”), CymaBay Therapeutics, Inc. (“CymaBay”) and the acquisition
of CymaBay by Gilead that are subject to risks, uncertainties and other factors. All statements other than statements of historical fact
are statements that could be deemed forward-looking statements, including all statements regarding the intent, belief or current expectation
of Gilead and CymaBay and members of their respective senior management teams. Forward-looking statements include, without limitation,
statements regarding the transaction and related matters, prospective performance and opportunities, post-closing operations and the outlook
for the companies’ businesses, including, without limitation, the ability of Gilead to advance CymaBay’s product pipeline
and successfully commercialize seladelpar; the possibility of unfavorable results from clinical trials; regulatory applications and related
timelines; filings and approvals relating to the transaction; the expected timing of the completion of the transaction; the ability to
complete the transaction considering the various closing conditions; difficulties or unanticipated expenses in connection with integrating
the companies; and any assumptions underlying any of the foregoing. Investors are cautioned that any such forward-looking statements are
not guarantees of future performance and involve risks and uncertainties and are cautioned not to place undue reliance on these forward-looking
statements. Actual results may differ materially from those currently anticipated due to a number of risks and uncertainties. Risks and
uncertainties that could cause the actual results to differ from expectations contemplated by forward-looking statements include: uncertainties
as to the timing of the tender offer and merger; uncertainties as to how many of CymaBay’s stockholders will tender their stock
in the offer; the possibility that competing offers will be made; the possibility that various closing conditions for the transaction
may not be satisfied or waived, including that a governmental entity may prohibit, delay or refuse to grant approval for the consummation
of the transaction; the effects of the transaction on relationships with employees, other business partners or governmental entities;
the difficulty of predicting the timing or outcome of regulatory approvals or actions, if any; the impact of competitive products and
pricing; other business effects, including the effects of industry, economic or political conditions outside of the companies’ control;
transaction costs; actual or contingent liabilities; adverse impacts on business, operating results or financial condition in the future
due to pandemics, epidemics or outbreaks; and other risks and uncertainties detailed from time to time in the companies’ periodic
reports filed with the U.S. Securities and Exchange Commission (the “SEC”), including current reports on Form 8-K,
quarterly reports on Form 10-Q and annual reports on Form 10-K, as well as the Schedule 14D-9 to be filed by CymaBay and the Schedule
TO and related tender offer documents to be filed by Gilead and Pacific Merger Sub, Inc., a wholly owned subsidiary of Gilead. All forward-looking
statements are based on information currently available to Gilead and CymaBay, and Gilead and CymaBay assume no obligation and disclaim
any intent to update any such forward-looking statements.
ADDITIONAL INFORMATION AND WHERE TO FIND IT
The tender offer described in this document has
not yet commenced. This communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an
offer to sell securities of CymaBay, nor is it a substitute for any tender offer materials that Gilead, Pacific Merger Sub, Inc. or CymaBay
will file with the SEC. A solicitation and an offer to buy securities of CymaBay will be made only pursuant to an offer to purchase and
related materials that Gilead intends to file with the SEC. At the time the tender offer is commenced, Gilead will file a Tender Offer
Statement on Schedule TO with the SEC, and CymaBay will file a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC with
respect to the tender offer. CYMABAY’S STOCKHOLDERS AND OTHER INVESTORS ARE URGED TO READ
THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED
LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 BECAUSE
THEY WILL CONTAIN IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE TENDER OFFER. The
Offer to Purchase, the related letter of transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation
Statement on Schedule 14D-9, will be sent to all stockholders of CymaBay at no expense to them. The Tender Offer Statement on Schedule
TO, the Solicitation/Recommendation Statement on Schedule 14D-9 and other related documents will be made available for free at the SEC’s
web site at www.sec.gov. Additional copies may be obtained for free by contacting Gilead
or CymaBay. Free copies of these materials and certain other offering documents will be made available by Gilead by mail to Gilead Sciences,
Inc., 333 Lakeside Drive, Foster City, CA 94404, attention: Investor Relations, by phone at 1-800-GILEAD-5 or 1-650-574-3000, or by directing
requests for such materials to the information agent for the offer, which will be named in the Tender Offer Statement on Schedule TO.
Investors and security holders of CymaBay may also obtain, free of charge, the Solicitation/Recommendation Statement on Schedule 14D-9
and other related documents that CymaBay has filed with or furnished to the SEC under the “Investors & Media” section
of CymaBay’s website at www.cymabay.com/investors-media.
In addition to the Offer to Purchase, the related
Letter of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, Gilead and CymaBay
file annual, quarterly and current reports, proxy statements and other information with the SEC. Gilead’s and CymaBay’s filings
with the SEC are also available for free to the public from commercial document-retrieval services and at the website maintained by the
SEC at www.sec.gov.
EXHIBIT INDEX
Exhibit 99.1
To: Group – All CymaBay Employees
From: Daniel O’Day, Chairman and CEO of Gilead
Date: February 14, 2024
Subject: Message to the CymaBay Team from Daniel O’Day, CEO, Gilead
Hello Everyone,
I wanted to share a few words on behalf of all of us at Gilead following
the announcement earlier this week.
We are delighted to have reached the agreement to acquire CymaBay. We
have tremendous respect for your work and for the way you have advanced seladelpar as a potential option for people living with PBC. My
congratulations on your most recent milestone of achieving acceptance of the U.S. NDA filing with Priority Review.
As I shared with Sujal when we spoke earlier this week, I am deeply
impressed by the expertise, focus and perseverance of your team. As we got to learn about CymaBay it became clear that our two companies
share a focus on the best quality science, and we have the same goal of bringing forward solutions to make a real difference in people’s
lives. With our shared commitment to transforming the treatment of liver disease, we are honored to have the opportunity to help
seladelpar reach as many people living with PBC as possible around the world.
We look forward to meeting you soon and to getting to know more about
your work over the coming weeks as we plan for the successful integration after closing.
Dan
FORWARD-LOOKING STATEMENTS
This communication contains forward-looking statements related to Gilead
Sciences, Inc. (“Gilead”), CymaBay Therapeutics, Inc. (“CymaBay”) and the acquisition of CymaBay by Gilead that
are subject to risks, uncertainties and other factors. All statements other than statements of historical fact are statements that could
be deemed forward-looking statements, including all statements regarding the intent, belief or current expectation of Gilead and CymaBay
and members of their respective senior management teams. Forward-looking statements include, without limitation, statements regarding
the transaction and related matters, prospective performance and opportunities, post-closing operations and the outlook for the companies’
businesses, including, without limitation, the ability of Gilead to advance CymaBay’s product pipeline and successfully commercialize
seladelpar; the possibility of unfavorable results from clinical trials; regulatory applications and related timelines; filings and
approvals relating to the transaction; the expected timing of the completion of the transaction; the ability to complete the
transaction considering the various closing conditions; difficulties or unanticipated expenses in connection with integrating the
companies; and any assumptions underlying any of the foregoing. Investors are cautioned that any such forward-looking statements
are not guarantees of future performance and involve risks and uncertainties and are cautioned not to place undue reliance on these forward-looking
statements. Actual results may differ materially from those currently anticipated due to a number of risks and uncertainties. Risks and
uncertainties that could cause the actual results to differ from expectations contemplated by forward-looking statements include: uncertainties
as to the timing of the tender offer and merger; uncertainties as to how many of CymaBay’s stockholders will tender their stock
in the offer; the possibility that competing offers will be made; the possibility that various closing conditions for the transaction
may not be satisfied or waived, including that a governmental entity may prohibit, delay or refuse to grant approval for the consummation
of the transaction; the effects of the transaction on relationships with employees, other business partners or governmental entities;
the difficulty of predicting the timing or outcome of regulatory approvals or actions, if any; the impact of competitive products and
pricing; other business effects, including the effects of industry, economic or political conditions outside of the companies’
control; transaction costs; actual or contingent liabilities; adverse impacts on business, operating results or financial condition
in the future due to pandemics, epidemics or outbreaks; and other risks
and uncertainties detailed from time to time in the companies’
periodic reports filed with the U.S. Securities and Exchange Commission (the “SEC”), including current reports on Form
8-K, quarterly reports on Form 10-Q and annual reports on Form 10-K, as well as the Schedule 14D-9 to be filed by CymaBay and the Schedule
TO and related tender offer documents to be filed by Gilead and Pacific Merger Sub, Inc., a wholly owned subsidiary of Gilead. All forward-looking
statements are based on information currently available to Gilead and CymaBay, and Gilead and CymaBay assume no obligation and disclaim
any intent to update any such forward-looking statements.
ADDITIONAL INFORMATION AND WHERE TO FIND IT
The tender offer described in this document has not yet commenced.
This communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell securities
of CymaBay, nor is it a substitute for any tender offer materials that Gilead, Pacific Merger Sub, Inc. or CymaBay will file with the
SEC. A solicitation and an offer to buy securities of CymaBay will be made only pursuant to an offer to purchase and related materials
that Gilead intends to file with the SEC. At the time the tender offer is commenced, Gilead will file a Tender Offer Statement on Schedule
TO with the SEC, and CymaBay will file a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC with respect to the tender
offer. CYMABAY’S STOCKHOLDERS AND OTHER INVESTORS ARE URGED TO READ THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE,
A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9
BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE TENDER
OFFER. The Offer to Purchase, the related letter of transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation
Statement on Schedule 14D-9, will be sent to all stockholders of CymaBay at no expense to them. The Tender Offer Statement on Schedule
TO, the Solicitation/Recommendation Statement on Schedule 14D-9 and other related documents will be made available for free at the SEC’s
web site at www.sec.gov. Additional copies may be obtained for free by contacting Gilead
or CymaBay. Free copies of these materials and certain other offering documents will be made available by Gilead by mail to Gilead Sciences,
Inc., 333 Lakeside Drive, Foster City, CA 94404, attention: Investor Relations, by phone at 1-800-GILEAD-5 or 1-650-574-3000, or by directing
requests for such materials to the information agent for the offer, which will be named in the Tender Offer Statement on Schedule TO.
Investors and security holders of CymaBay may also obtain, free of charge, the Solicitation/Recommendation Statement on Schedule 14D-9
and other related documents that CymaBay has filed with or furnished to the SEC under the “Investors & Media” section
of CymaBay’s website at www.cymabay.com. In addition to the Offer to Purchase,
the related Letter of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, Gilead
and CymaBay file annual, quarterly and current reports, proxy statements and other information with the SEC. Gilead’s and CymaBay’s
filings with the SEC are also available for free to the public from commercial document-retrieval services and at the website maintained
by the SEC at www.sec.gov.
Gilead Sciences (NASDAQ:GILD)
Historical Stock Chart
From Mar 2024 to Apr 2024
Gilead Sciences (NASDAQ:GILD)
Historical Stock Chart
From Apr 2023 to Apr 2024
