Written Communication Relating to an Issuer or Third Party (sc To-c)
September 16 2020 - 4:59PM
Edgar (US Regulatory)
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
IMMUNOMEDICS, INC.
(Name of Subject Company (Issuer))
MAUI MERGER SUB, INC.
a wholly owned subsidiary of
GILEAD SCIENCES, INC.
(Names of Filing Persons (Offeror))
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
452907108
(Cusip Number of Class of Securities)
Brett A. Pletcher, 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:
Marc O. Williams
Cheryl Chan
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-6145
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CALCULATION OF FILING FEE
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Transaction
Valuation*
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Amount
of Filing Fee*
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N/A
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N/A
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____________________________
* A filing fee is not required
in connection with this filing as it relates solely to preliminary communications made before the commencement of the tender offer.
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Check 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.
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Amount Previously Paid:
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Not applicable
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Filing Party:
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Not applicable
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Form or Registration No.:
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Not applicable
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Date Filed:
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Not applicable
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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:
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third-party tender offer subject to Rule 14d-1.
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issuer tender offer subject to Rule 13e-4.
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going-private transaction subject to Rule 13e-3.
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment
reporting the results of the tender offer. ☐
This filing relates solely to preliminary
communications made before the commencement of a tender offer by Maui Merger Sub, Inc., a Delaware corporation (“Purchaser”)
and a wholly owned subsidiary of Gilead Sciences, Inc., a Delaware corporation (“Gilead”), to acquire all of
the outstanding shares of common stock of Immunomedics, Inc., a Delaware corporation (“Immunomedics”), at a
price of $88.00 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 September 13, 2020, among Immunomedics, Gilead and Purchaser.
Forward-Looking Statements
This document contains forward-looking
statements related to Gilead, Immunomedics and the acquisition of Immunomedics 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 the companies’ and members of
their senior management team. Forward-looking statements include, without limitation, statements regarding the business combination
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 Immunomedics’ product pipeline and successfully
commercialize Trodelvy; expectations for achieving full U.S. Food and Drug Administration approval based on Immunomedics’
confirmatory data for Trodelvy and Immunomedics’ development of Trodelvy for additional indications; clinical trials (including
the anticipated timing of clinical data, the funding therefor, anticipated patient enrollment, trial outcomes, timing or associated
costs); the possibility of unfavorable results from clinical trials; regulatory applications and related timelines, including
the filing and approval timelines for Biologics License Applications and supplements; 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 Immunomedics’ 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; Immunomedics’ ability to meet post-approval compliance obligations (on topics including but not limited to product
quality, product distribution and supply chain requirements, and promotional and marketing compliance); imposition of significant
post-approval regulatory requirements on Immunomedics’ products, including a requirement for a post-approval confirmatory
clinical study, or failure to maintain (if received) or obtain full regulatory approval for Immunomedics’ products due to
a failure to satisfy post-approval regulatory requirements, such as the submission of sufficient data from a confirmatory clinical
study; 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, such
as COVID-19; 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 Immunomedics and the Schedule TO and
related tender offer documents to be filed by Gilead and Purchaser. All forward-looking statements are based on information currently
available to Gilead and Immunomedics, and Gilead and Immunomedics 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 document is for informational purposes only and is neither an offer to purchase nor a solicitation
of an offer to sell shares of Immunomedics, nor is it a substitute for any tender offer materials that Gilead, Purchaser or Immunomedics
will file with the SEC. A solicitation and an offer to buy shares of Immunomedics 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 Immunomedics will file a Solicitation/Recommendation Statement on Schedule
14D-9 with the SEC with respect to the tender offer. IMMUNOMEDICS’ 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 BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION WHICH 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, will be sent to all stockholders of Immunomedics
at no expense to them. The Tender Offer Statement and the Solicitation/Recommendation Statement 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 Immunomedics. 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. Copies of the documents filed with the SEC by Immunomedics will be available free
of charge under the “Investors” section of Immunomedics’ internet website at Immunomedics.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 Immunomedics file annual, quarterly and current reports, proxy statements and other information with the SEC. Gilead’s
and Immunomedics’ 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 No.
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Description
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99.1
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Email sent to the Gilead Development Team on September 15, 2020.
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