AIMT Aimmune Therapeutics Inc

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE TO

(Rule 14d-100)

TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No. 2)

Aimmune Therapeutics, Inc.

(Name of Subject Company (Issuer))

SPN MergerSub, Inc.

(Offeror)

A Wholly-Owned Subsidiary of

Société des Produits Nestlé S.A.

(Parent of Offeror)

(Names of Filing Persons (identifying status as offeror, issuer or other person))

Common Stock, Par Value $0.0001 Per Share

(Title of Class of Securities)

00900T107

(CUSIP Number of Class of Securities)

Avenue Nestlé, 55

1800 Vevey

Switzerland

Attention: General Counsel

Phone: +41 21 924 1111

(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)

Copies to:

David A. Carpenter, Esq.

Mayer Brown LLP

1221 Avenue of the Americas

New York, New York 10020

Phone: (212) 506-2195

CALCULATION OF FILING FEE

Check the appropriate boxes below to designate any transactions to which the statement relates:

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:

This Amendment No. 2 (this “Amendment”) amends the combined Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO with the Securities and Exchange Commission on September 14, 2020 (together with any amendments or supplements thereto, the “Schedule TO”) with respect to the offer by SPN MergerSub, Inc., a Delaware corporation and a wholly-owned subsidiary of Société des Produits Nestlé S.A., a société anonyme organized under the laws of Switzerland (“Nestlé”), to purchase all of the outstanding shares of common stock, par value $0.0001 per share, of Aimmune Therapeutics, Inc., a Delaware corporation (“Aimmune”), owned by the stockholders of Aimmune other than Nestlé and its affiliates, at a price of $34.50 per Share, net to the seller thereof in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated September 14, 2020 (the “Offer to Purchase”), which is annexed to and filed with the Schedule TO as Exhibit (a)(1)(A), and in the related Letter of Transmittal, which is annexed to and filed with the Schedule TO as Exhibit (a)(1)(B).

Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO and the Offer to Purchase remains unchanged and is incorporated herein by reference to the extent relevant to the matters set forth in this Amendment. Capitalized terms used but not defined in this Amendment have the meanings given to them in the Offer to Purchase.

The sentence in the first bullet on page 1 under the section entitled “Summary Term Sheet,” of the Offer to Purchase is supplemented to include the following sentence immediately following such sentence:

“For clarity, the term “Unaffiliated Stockholders” when used anywhere in the Offer to Purchase or the cover letter to the Offer to Purchase includes all stockholders of Aimmune other than (i) Nestlé, (ii) any entity controlled by, controlling or under common control with Nestlé and (iii) Greg Behar.”

Item 1 of the Schedule TO and the information set forth in the Offer to Purchase under “Summary Term Sheet – Recent Aimmune Trading Prices; Subsequent Trading” is hereby amended and supplemented by adding the following as a new bullet point immediately following the third bullet point on page 6

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Item 5 of the Schedule TO and the information set forth in the Offer to Purchase under “Special Factors—Section 1. Background” is hereby amended and supplemented by:

“On January 31, 2020, Aimmune announced that the U.S. Food and Drug Administration (the “FDA”) approved PALFORZIA^® for treatment of patients with peanut allergy.”

“Representatives of Nestlé Health Science discussed recent developments in Aimmune’s business (including the recent FDA approval for PALFORZIA^®, the process Aimmune was engaged in regarding a potential licensing or other strategic transaction relating to the rights to commercialize PALFORZIA^® in Europe and the support Aimmune had gained from major U.S. health insurers). In particular, representatives of Nestlé Health Science discussed with the board of directors of Nestlé S.A. that in the event Aimmune were to license the rights to commercialize PALFORZIA^® in Europe to a third party, the rationale for maintaining its current investment in Aimmune would be less compelling. In addition, representatives of Nestlé Health Science indicated to the board of directors of Nestlé S.A. that the approval by the FDA of PALFORZIA^® represented a significant regulatory development that warranted a re-assessment of Nestlé Health Science’s investment in Aimmune at that time.”

Item 6 of the Schedule TO and the information set forth in the Offer to Purchase under “Special Factors—Section 2. Purpose of and Reasons for the Offer and the Merger; Plans for Aimmune after the Offer and the Merger” is hereby amended and supplemented by:

“Nestlé is pursuing the acquisition of Aimmune at this time in light of its view that in the event Aimmune were to license the rights to commercialize PALFORZIA^® in Europe to a third party, the rationale for maintaining its current investment in Aimmune would not be compelling and its view that the approval by the FDA of PALFORZIA^® represents a significant regulatory development that increases the likelihood that Aimmune’s key product will be commercially successful in the future.”

“The aggregate amount Nestlé expects will be required to repay all of the outstanding borrowings of Aimmune under such credit agreement is approximately $148 million.”

The information set forth in the Offer to Purchase under the subsection titled “Litigation” in “The Tender Offer—Section 13. Certain Legal Matters” and in Item 11 of the Schedule TO, to the extent such Item incorporates by reference the information contained in such subsection of the Offer to Purchase, is amended and restated in its entirety as set forth below.

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“Following the filing of the Schedule TO, purported stockholders of Aimmune filed seven lawsuits challenging the Offer and the Merger. On September 21, 2020, a putative class action lawsuit was filed in the United States District Court for the Northern District of California, captioned Shah v. Aimmune Therapeutics, Inc., et al., Case No. 5:20-cv-06609 (the “Shah Complaint”). On September 23, 2020, a lawsuit was filed in the United States District Court for the Eastern District of New York, captioned Davis v. Aimmune Therapeutics, Inc., et al., Case No. 1:20-cv-04518 (the “Davis Complaint”). On September 24, 2020, a lawsuit was filed in the United States District Court for the Southern District of New York, captioned Fenton v. Aimmune Therapeutics, Inc., et al., Case No. 1:20-cv-07907 (the “Fenton Complaint”), and a putative class action lawsuit was filed in the United States District Court for the District of Delaware, captioned Rosenblatt v. Aimmune Therapeutics, Inc., et al., Case No. 1:20-cv-01289 (the “Rosenblatt Complaint”). On September 25, 2020, (a) a putative class action lawsuit was filed in the United States District Court for the Northern District of California, captioned Bushansky v. Aimmune Therapeutics, Inc., et al., Case No. 3:20-cv-06718 (the “Bushansky Complaint”), (b) a putative class action lawsuit was filed in the United States District Court for the Northern District of California San Francisco Division, captioned Germano v. Aimmune Therapeutics, Inc., et al., Case No. 3:20-cv-06733 (the “Germano Complaint”) and (c) a lawsuit was filed in the United States District Court for the Southern District of New York, captioned Tsenter v. Aimmune Therapeutics, Inc., et al., Case No. 1:20-cv-07989 (the “Tsenter Complaint”). On September 28, 2020, a lawsuit was filed in the United States District Court for the District of Delaware, captioned Wodarski v. Aimmune Therapeutics, Inc., et al., Case No. 1:20-cv-01299 (the “Wodarski Complaint” and together with the Shah Complaint, the Davis Complaint, the Fenton Complaint, the Rosenblatt Complaint, the Bushansky Complaint, the Germano Complaint and the Tsenter Complaint, the “Complaints”). The Complaints name Aimmune and the members of the Aimmune Board as defendants, and the Rosenblatt Complaint and the Wodarski Complaint also name Nestlé and Purchaser as defendants. Each Complaint alleges, among other things, that (i) Aimmune and the members of the Aimmune Board violated (A) Section 14(e) of the Exchange Act and (B) Section 14(d)(4) of the Exchange Act and Rule 14d-9 promulgated thereunder (except for the Bushansky Complaint and the Germano Complaint, which did not make any allegations contemplated by this clause (B), and the Wodarski Complaint, which did not make any allegations with respect to Section 14(d)(4) of the Exchange Act), and (ii) the members of the Aimmune Board (and, in the case of the Rosenblatt Complaint, Nestlé and Purchaser, each of which is alleged to be a control person for purposes of Section 20(a) of the Exchange Act) also violated Section 20(a) of the Exchange Act, in each case, by preparing and disseminating a Schedule 14D-9 that misstates or omits certain allegedly material information. Furthermore, the Wodarski Complaint also alleges that Nestlé and Purchaser made such violations with respect to Section 14(e) of the of the Exchange Act and Rule 14d-9 promulgated thereunder. In addition, the Shah Complaint also alleges that (1) the members of the Aimmune Board breached their fiduciary duties by entering into the transactions contemplated by the Merger Agreement through a flawed and unfair process and by failing to disclose all material information to Aimmune’s stockholders and (2) Aimmune aided and abetted such alleged breaches of fiduciary duty by the members of the Aimmune Board. Furthermore, the Germano Complaint alleges that the members of the Aimmune Board breached their fiduciary duty of candor/disclosure by approving or causing the dissemination of a Schedule 14D-9 that misstates or omits certain allegedly material information. Each Complaint seeks, among other things, (x) injunctive relief enjoining the consummation of the Offer and the Merger, (y) if the Offer and the Merger are consummated, rescission or rescissory damages and (z) an award of the plaintiff’s costs, including attorneys’ and experts’ fees. The defendants believe that all of the claims asserted in the Complaints are without merit.

Additionally, on September 28, 2020, purported stockholder Cecilia Pemberton sent the Company a books and records demand pursuant to 8 Del. C. § 220 in connection with such stockholder’s investigation of, among other things, the Preliminary Projections, possible conflicts of interest of and breaches of fiduciary duty by members of the Aimmune Board and the omission of certain potentially material information from the Schedule 14D-9.”

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The information set forth in the Offer to Purchase under the subsection titled “The Tender Offer—Section 11. Conditions of the Offer” is hereby amended and supplemented by adding the following at the end of the third paragraph on page 63:

“Notwithstanding the foregoing, if an Offer Condition is triggered, the Nestlé Parties will notify Aimmune stockholders whether or not they have waived such condition. In addition, when an Offer Condition is triggered by events that occur during the offer period and before the expiration of the Offer, the Nestlé Parties will promptly inform holders how they intend to proceed, rather than waiting until the end of the offer period, unless the Offer Condition is one where satisfaction of the condition may be determined only upon expiration.”

The following sets forth information required by Schedule 13E-3 that has not already been set forth in Items 1-12 above. The information set forth in the Offer to Purchase is incorporated herein by reference to the items required by Schedule 13E-3.

Item 8 of the Schedule TO and the information set forth in the Offer to Purchase under “Special Factors—Section 4. Position of Nestlé and Purchaser Regarding Fairness of the Offer and the Merger” is hereby amended and supplemented by:

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“In making their determination of fairness, the Nestlé Parties took into account the future prospects of Aimmune and they concluded that Aimmune’s achievement of such future prospects would involve material uncertainties and risks, particularly in light of the current industry, economic and market conditions and trends affecting Aimmune, including the COVID-19 pandemic. The Nestlé Parties also considered the recent decline of the market price of Shares, and the potential related effect of the COVID-19 pandemic on such price, in making their determination of fairness. The Nestlé Parties have observed that since the March 2020 decline in the Share price that coincided with, and was potentially related to, the increased awareness in the United States of the COVID-19 pandemic, the closing price of Shares did not equal or exceed the March 2020 level until the announcement of the execution of Merger Agreement and the Offer Price has exceeded the closing price of Shares since March 2020.”

“The Nestlé Parties did not consider the fact that the Termination Amount of $85.0 million payable by Aimmune to the Nestlé Parties if the Merger Agreement is terminated under the circumstances described under “Special Factors—Summary of the Merger Agreement—Termination Fees” in considering the fairness of the transaction to Unaffiliated Stockholders because the circumstances under which the Termination Amount would be payable, and the Termination Amount, is comparable to termination fees in similar transactions not subject to Rule 13e-3 under the Exchange Act, and the Termination Amount is the sole and exclusive remedy of the Nestlé Parties in the event of any termination of the Merger Agreement. The Termination Amount represents approximately 3.25% of Aimmune’s total equity value implied by the Offer Price and Merger Consideration.”

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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.

Dated: September 29, 2020.

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