Amended Tender Offer Statement by Third Party (sc To-t/a)
September 19 2013 - 6:01AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(RULE 14d100)
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 4)
ONYX
PHARMACEUTICALS, INC.
(Name of Subject Company)
ARENA ACQUISITION COMPANY
(Offeror)
AMGEN INC.
(Parent of Offeror)
(Names of Filing Persons)
COMMON STOCK,
$0.001 PAR VALUE
(Title of Class of Securities)
683399109
(Cusip Number
of Class of Securities)
David J. Scott, Esq.
Senior Vice President, General Counsel and Secretary
One Amgen Center Drive
Thousand Oaks, California 91320-1799
(805) 447-1000
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
With a
copy to:
Francis J. Aquila, Esq.
Matthew G. Hurd, Esq.
Sarah P. Payne, Esq.
Sullivan & Cromwell LLP
125 Broad Street
New
York, NY 10004-2498
(212) 558-4000
CALCULATION
OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$10,706,491,500
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$1,460,365
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*
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Estimated solely for purposes of calculating the filing fee. The transaction value calculation does not take into account the effect of any cash received or deemed received by Onyx Pharmaceuticals, Inc.
(Onyx) in connection with the exercise of any outstanding equity awards. The transaction value was determined by multiplying (a) $125.00, the tender offer price, by (b) the sum of (i) 73,430,031, the number of issued and
outstanding shares of Onyx common stock, (ii) 5,515,461, the number of shares of Onyx common stock subject to issuance pursuant to options to purchase shares of Onyx common stock, (iii) 757,680, the number of shares of Onyx common stock
subject to issuance pursuant to Onyx restricted stock units, performance stock units and all other rights of any kind, contingent or accrued, to receive Shares or benefits measured by the value of a number of Shares and awards of any kind consisting
of Shares granted and outstanding under Onyxs 2005 Equity Incentive Plan, as amended, 1996 Equity Incentive Plan and 1996 Non-Employee Director Stock Option Plan, (iv) 11,383, the number of shares of Onyx common stock reserved for the
issuance of purchase rights pursuant to the Onyxs 1996 Employee Stock Purchase Plan, as amended, and (v) 5,937,377, the number of shares of Onyx common stock issuable upon conversion of the Companys 4.00% Convertible Senior Notes
due 2016 (including the effect of any make-whole provision and assuming conversions are settled in full in shares of Onyx common stock), assuming the effectiveness thereof occurred on the Expiration Date, regardless of the conversion or exercise
price or other terms and conditions thereof. The foregoing share figures have been provided by the issuer to the offerors and are as of August 23, 2013, the most recent practicable date.
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**
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The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2013, issued August 31, 2012, by multiplying the
transaction value by 0.00013640.
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x
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Check box if any part of the fee is offset as provided by Rule 011(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: $1,460,365
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Filing Party: Amgen Inc. and Arena Acquisition Company
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Form or Registration No.: Schedule TO.
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Date Filed: September 3, 2013.
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¨
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
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x
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third-party
tender offer subject to Rule
14d-1.
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¨
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issuer tender offer subject to Rule
13e-4.
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¨
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going-private
transaction subject to Rule
13e-3
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¨
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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.
¨
If applicable,
check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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¨
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Rule
13e-4(i)
(Cross-Border
Issuer Tender Offer)
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¨
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Rule
14d-1(d)
(Cross-Border
ThirdParty Tender Offer)
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This Amendment No. 4 (this Amendment) amends and supplements the Tender Offer
Statement on Schedule TO filed by Amgen Inc., a Delaware corporation (Amgen), and Arena Acquisition Company (Purchaser), a Delaware corporation and a wholly owned subsidiary of Amgen, with the Securities and Exchange
Commission on September 3, 2013 (together with any subsequent amendments and supplements thereto, the Schedule TO). The Schedule TO relates to the offer by the Purchaser to purchase all of the shares of common stock, par value
$0.001 per share (the Shares), of Onyx Pharmaceuticals, Inc., a Delaware corporation (Onyx), that are issued and outstanding at a price of $125.00 per Share, net to the seller in cash, without interest, less any applicable
withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 3, 2013 (the Offer to Purchase), and in the related Letter of Transmittal (the Letter of Transmittal),
copies of which are attached as Exhibits (a)(1)(i) and (a)(1)(ii), respectively, to the Schedule TO (which, together with any amendments or supplements thereto, collectively constitute the Offer).
All information contained in the Offer to Purchase and the accompanying Letter of Transmittal, including all schedules thereto, is hereby
incorporated herein by reference in response to Items 1 through 9 and Item 11 in the Schedule TO.
This Amendment is being filed to
amend and supplement Item 11 as reflected below.
Items 11. Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented as follows:
(a) The last paragraph of Section 15 Conditions to the Offer of the Offer to Purchase is hereby amended and
supplemented by adding the following to the end of the paragraph:
The HSR Condition has been satisfied by the grant of early
termination of the HSR waiting period by the FTC on September 18, 2013.
(b) The third and fourth paragraph of
Section 17 Certain Legal Matters; Regulatory Approvals Antitrust Compliance of the Offer to Purchase are hereby amended and restated as follows:
On September 6, 2013, each of Amgen and Onyx filed a Premerger Notification and Report Form with the FTC and the Antitrust Division
for review in connection with the Offer. The initial waiting period under the HSR Act, which was scheduled to expire on September 23, 2013, was terminated early, effective September 18, 2013.
On September 18, 2013, Amgen and Onyx issued a joint press release announcing the early termination of the applicable waiting period
under the HSR Act. The full text of the press release is attached as Exhibit (a)(5)(iv) to the Schedule TO and is incorporated herein by reference.
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
(a)(5)(iv) Joint Press Release issued by Amgen and Onyx dated September 18, 2013.
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 18, 2013
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AMGEN INC.
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By:
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/s/ David J. Scott
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Name:
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David J. Scott
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Title:
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Senior Vice President, General Counsel and Secretary
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ARENA ACQUISITION COMPANY
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By:
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/s/ David J. Scott
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Name:
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David J. Scott
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Title:
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Senior Vice President, General Counsel and Secretary
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EXHIBIT INDEX
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Index No.
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(a)(1)(i)
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Offer to Purchase dated September 3, 2013.*
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(a)(1)(ii)
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Form of Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9).*
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(a)(1)(iii)
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Form of Notice of Guaranteed Delivery.*
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(a)(1)(iv)
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
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(a)(1)(v)
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Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
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(a)(1)(vi)
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Summary Advertisement as published in the
New York Times
on September 3, 2013.*
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(a)(5)(i)
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Joint Press Release issued by Amgen and Onyx dated August 25, 2013 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Amgen with the Securities and Exchange Commission on August 26,
2013).
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(a)(5)(ii)
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Slide Presentation, dated August 26, 2013 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by Amgen with the Securities and Exchange Commission on August 26, 2013).
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(a)(5)(iii)
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Transcript of Investor Conference held by Amgen on August 26, 2013 (incorporated by reference to Exhibit 99.2 to the Schedule TO-C filed by Amgen with the Securities and Exchange Commission on August 26, 2013).
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(a)(5)(iv)
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Joint Press Release issued by Amgen and Onyx dated September 18, 2013.
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(b)(1)
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Master Repurchase Agreement, dated August 24, 2013, by and between Amgen Inc. and Bank of America, N.A. (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed by Amgen with the Securities and Exchange
Commission on August 26, 2013).
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(b)(2)
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Commitment Letter, dated August 24, 2013, between Amgen Inc., Bank of America, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, JPMorgan Chase Bank, N.A., J.P. Morgan Securities LLC and Barclays Bank PLC (incorporated
by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Amgen with the Securities and Exchange Commission on August 26, 2013).
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(d)(1)
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Agreement and Plan of Merger, dated August 24, 2013, by and among Amgen, Purchaser and Onyx (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Amgen with the Securities and Exchange Commission on
August 26, 2013).
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(d)(2)
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Confidentiality Agreement, dated July 12, 2013, between Amgen and Onyx.*
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(g)
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Not applicable.
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(h)
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Not applicable.
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