This Amendment No. 1 to Schedule
14D-9
amends and supplements
the Solicitation/Recommendation Statement on Schedule
14D-9
previously filed by Loxo Oncology, Inc., a Delaware corporation (
Loxo Oncology
), with the Securities and Exchange Commission on
January 17, 2019 (the
Schedule
14D-9
), relating to the offer by Bowfin Acquisition Corporation (
Purchaser
), a Delaware corporation and wholly-owned subsidiary of Eli
Lilly and Company (
Lilly
), an Indiana corporation, to purchase all of the outstanding shares of Loxo Oncology common stock, par value $0.0001 per share (the
Shares
), at a purchase price of $235.00 per Share, net
to the seller in cash, without interest and subject to withholding taxes, on the terms and subject to the conditions set forth in the Offer to Purchase, dated January 17, 2019, and the related Letter of Transmittal, each of which may be amended
or supplemented from time to time.
Except as otherwise set forth in this Amendment, the information set forth in the Schedule
14D-9
remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule
14D-9.
Item 8. Additional Information
Item 8 of the Schedule
14D-9
is hereby amended and supplemented by inserting the following sentences at the end of the
last paragraph under the subheading
U.S. Antitrust Laws
under the heading
Regulatory Approvals
on page 48 of the Schedule
14D-9:
The waiting period applicable to the Offer under the HSR Act expired effective January 31, 2019 at 11:59 p.m., Eastern time.
On February 1, 2019, Loxo Oncology issued a press release announcing the expiration of the required waiting period under the HSR Act applicable
to the Offer, a copy of which is attached hereto as Exhibit (a)(5)(B).
Item 8 of the Schedule
14D-9
is
hereby amended and supplemented by adding the following disclosure set forth below immediately after the subsection entitled
Annual and Quarterly Reports
:
Certain Litigation
On January 23, 2019, Elaine Wang, a purported stockholder of Loxo Oncology, filed a putative securities class action complaint in the
United States District Court for the District of Delaware against Loxo Oncology and the individual members of the Board, captioned
Wang v. Loxo Oncology, Inc., et. al.
, Case No.
1:19-cv-00133-UNA
(the
Wang Complaint
). The Wang Complaint asserts that Loxo Oncology and certain of its
directors violated sections 14(e), 14(d), and 20(a) of the Exchange Act by making untrue statements of material fact and omitting certain material facts related to the Transactions in this Schedule
14D-9.
The
Wang Complaint seeks, among other things, an order enjoining defendants from consummating the Transactions and money damages.
On
January 24, 2019, Colleen Witmer, a purported stockholder of Loxo Oncology, also filed a putative securities class action complaint in the United States District Court for the District of Delaware against Loxo Oncology, the individual members
of the Board, Lilly and Purchaser, captioned
Witmer v. Loxo Oncology, Inc., et. al
., Case No.
1:19-cv-00135-UNA
(the
Witmer Complaint
). The Witmer Complaint asserts that Loxo Oncology, certain of its directors, Lilly and Purchaser violated sections 14(e), 14(d), and 20(a) of the Exchange Act by making untrue statements of material fact and
omitting certain material facts related to the Transactions in this Schedule
14D-9.
The Witmer Complaint seeks, among other things, an order enjoining defendants from consummating the Transactions and money
damages.
On January 28, 2019, Katie Elasmar, a purported stockholder of Loxo Oncology, also filed a putative securities class action
complaint in the United States District Court for the Northern District of California against Loxo Oncology and the individual members of the Board, captioned
Elasmar v. Loxo Oncology, Inc., et. al.
, Case No.
1:19-cv-00133-UNA
(the
Elasmar Complaint
). The Elasmar Complaint asserts that Loxo Oncology and certain of its directors violated sections 14(e) and
20(a) of the Exchange Act by making untrue statements of material fact and omitting certain material facts related to the Transactions in this Schedule
14D-9.
The Elasmar Complaint seeks, among other things,
an order enjoining defendants from consummating the Transactions and money damages.
On January 31, 2019, Michael Stevens, a purported
stockholder of Loxo Oncology, also filed a putative securities class action complaint in the United States District Court for the District of Delaware against Loxo Oncology and the individual members of the Board, captioned
Michael Stevens v.
Loxo Oncology, Inc., et. al.
, Case No. 1:19-ct-00034 (the
Stevens Complaint
). The Stevens Complaint asserts that Loxo Oncology and certain of its directors violated sections 14(e), 14(d) and 20(a) of the Exchange Act by making
untrue statements of material fact and omitting certain material facts related to the Transactions in this Schedule 14D-9. The Stevens Complaint seeks, among other things, an order enjoining defendants from consummating the Transactions and money
damages.
Item 9. Exhibits
Item 9 of
the Solicitation/Recommendation Statement is hereby amended and supplemented by adding the following Exhibits:
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Exhibit No.
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Description
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(a)(5)(B)**
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Press Release issued by Loxo Oncology, Inc., dated February 1, 2019.
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