UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 2)
CHECKMATE PHARMACEUTICALS,
INC.
(Name of Subject Company)
SCANDINAVIAN ACQUISITION SUB, INC.
(Offeror)
REGENERON PHARMACEUTICALS,
INC.
(Parent of Offeror)
(Names of Filing Persons)
Common stock, par value $0.0001 per share
(Title of Class of Securities)
162818108
(CUSIP Number of Class of Securities)
Joseph J. LaRosa, Esq.
Regeneron Pharmaceuticals, Inc.
Executive Vice President, General Counsel and Secretary
777 Old Saw Mill River Road
Tarrytown, New York 10591-6707
(914) 847-7000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
With a copy to:
Andrew R. Brownstein, Esq.
Victor Goldfeld, Esq.
John L. Robinson, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
(212) 403-1000
| ¨ | 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:
| x | 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: o
If applicable, check the appropriate box(es) below
to designate the appropriate rule provision(s) relied upon:
| o | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| o | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 2 (this “Amendment”)
amends and supplements the Tender Offer Statement on Schedule TO filed by Scandinavian Acquisition Sub, Inc., a Delaware corporation (“Purchaser”)
and a wholly owned subsidiary of Regeneron Pharmaceuticals, Inc., a New York corporation (“Regeneron”), with the U.S. Securities
and Exchange Commission on May 2, 2022 (together with any subsequent amendments and supplements thereto, the “Schedule TO”).
The Schedule TO relates to the offer by Purchaser to purchase all of the outstanding shares of common stock, par value $0.0001 per share
(“Shares”), of Checkmate Pharmaceuticals, Inc., a Delaware corporation (“Checkmate”), at a price of $10.50 per
share, to be paid to the seller in cash, without interest, and subject to reduction for any applicable withholding taxes, upon the terms
and conditions set forth in the offer to purchase, dated May 2, 2022 (the “Offer to Purchase”), a copy of which is attached
as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”), a copy of which is attached
as Exhibit (a)(1)(B), which, as each may be amended or supplemented from time to time, collectively constitute the “Offer.”
Except as otherwise set forth in this Amendment,
the information set forth in the Schedule TO 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 TO.
Items 1 through 9 and Item 11
The information set forth in the Offer to Purchase
under “The Tender Offer—Section 16—Certain Legal Matters; Regulatory Approvals” and Items 1 through 9 and Item
11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby
amended and supplemented by replacing in its entirety the subsection titled “Securityholder Litigation,” which was added to
page 54 of the Offer to Purchase by Amendment No. 1 to the Tender Offer Statement on Schedule TO, filed on May 11, 2022, to read as follows:
“Securityholder Litigation. On May
5, 2022, a complaint was filed against Checkmate and the Checkmate Board of Directors by a purported Checkmate shareholder in the United
States District Court for the Eastern District of New York captioned Hopkins v. Checkmate Pharmaceuticals, Inc., et al.,
1:22-cv-02582. A similar complaint was filed in the same court on May 13, 2022 captioned Savage v. Checkmate Pharmaceuticals,
Inc., et al., 1:22-cv-02823. On May 12, 2022, a similar complaint was filed in the United States District Court for the Eastern District
of Pennsylvania captioned Whitfield v. Checkmate Pharmaceuticals, Inc., et al., 2:22-cv-01860. We refer to the foregoing
cases collectively as the “Merger Actions.” The Merger Actions generally allege that the Schedule 14D-9 misrepresents and/or
omits certain purportedly material information relating to financial projections, the analyses performed by Checkmate’s financial
advisor in connection with the Merger and potential conflicts of interest of Checkmate’s officers and directors. The Merger Actions
assert violations of Sections 14(d) and 14(e) of the Securities Exchange Act of 1934, and Rule 14d-9 promulgated thereunder, against all
defendants (Checkmate and the Checkmate Board of Directors), and violations of Section 20(a) of the Exchange Act against Checkmate’s
directors. The Merger Actions seek, among other things, an injunction enjoining the consummation of the Merger, costs of the action, including
plaintiffs’ attorneys’ fees and experts’ fees, and other relief the court may deem just and proper. Checkmate has also
received demand letters from purported Checkmate shareholders (which we refer to as the “Demands”) requesting that Checkmate
provide additional disclosures in connection with the Merger. Checkmate believes the claims asserted in the Merger Actions and the Demands
are without merit. Additional lawsuits may be filed against Checkmate, the Checkmate Board of Directors, Regeneron and/or Purchaser, and
additional demand letters may be received, in connection with the transactions contemplated by the Merger Agreement, including the Offer
and the Merger (which we refer to as the “Transactions”), the Schedule TO and the Schedule 14D-9.
Checkmate believes that no supplemental
disclosure is required under applicable laws and that the Schedule 14D-9 disclosed all material information required to be disclosed
therein.” However, to avoid the risk that lawsuits may delay or otherwise adversely affect the Transactions and to minimize the expense of defending
such actions, Checkmate voluntarily made certain supplemental disclosures related to the proposed Transactions, all of which are set forth
in Checkmate's Amendment No. 2 to its Solicitation/Recommendation Statement on Schedule 14D-9, filed by Checkmate with the SEC on May
20, 2022.”
Item
1.
Summary Term Sheet.
Regulation M-A Item 1001
The information set forth in the Offer to Purchase
under the caption SUMMARY TERM SHEET is incorporated herein by reference.
Item
2.
Subject Company Information.
Regulation M-A Item 1002
(a) Name
and Address. The name, address, and telephone number of the subject company’s principal executive offices are as follows:
Checkmate Pharmaceuticals, Inc.
245 Main Street, 2nd Floor
Cambridge, MA 02142
(617) 682-3625
(b)-(c) Securities; Trading Market
and Price. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
INTRODUCTION
THE TENDER OFFER — Section 6 (“Price Range of
Shares; Dividends”)
Item
3.
Identity and Background of Filing Person.
Regulation M-A Item 1003
(a)-(c) Name and Address; Business and Background
of Entities; and Business and Background of Natural Persons. The information set forth in the Offer to Purchase under the following
captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 8 (“Certain Information
Concerning Regeneron and Purchaser”)
SCHEDULE I — Information Relating to Regeneron and
Purchaser
Item
4.
Terms of the Transaction.
Regulation M-A Item 1004
(a) Material
Terms. The information set forth in the Offer to Purchase is incorporated herein by reference.
Item
5.
Past Contacts, Transactions, Negotiations and Agreements.
Regulation M-A Item 1005
(a) Transactions.
The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 10 (“Background of
the Offer; Past Contacts or Negotiations with Checkmate”)
(b) Significant
Corporate Events. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 10 (“Background of
the Offer; Past Contacts or Negotiations with Checkmate”)
THE TENDER OFFER —Section 11 (“The Merger Agreement;
Other Agreements”)
THE TENDER OFFER — Section 12 (“Purpose of the
Offer; Plans for Checkmate”)
Item
6.
Purposes of the Transaction and Plans or Proposals.
Regulation M-A Item 1006
(a) Purposes.
The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
THE TENDER OFFER — Section 12 (“Purpose of the
Offer; Plans for Checkmate”)
(c) (1)-(7) Plans. The information set
forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 9 (“Source and Amount
of Funds”)
THE TENDER OFFER — Section 10 (“Background of
the Offer; Past Contacts or Negotiations with Checkmate”)
THE TENDER OFFER — Section 11 (“The Merger Agreement;
Other Agreements”)
THE TENDER OFFER — Section 12 (“Purpose of the
Offer; Plans for Checkmate”)
THE TENDER OFFER — Section 13 (“Certain Effects
of the Offer”)
THE TENDER OFFER — Section 14 (“Dividends and
Distributions”)
Item
7.
Source and Amount of Funds or Other Consideration.
Regulation M-A Item 1007
(a) Source
of Funds. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 9 (“Source and Amount
of Funds”)
THE TENDER OFFER — Section 10 (“Background of
the Offer; Past Contacts or Negotiations with Checkmate”)
(b) Conditions.
The Offer is not subject to a financing condition.
(d) Borrowed
Funds. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 9 (“Source
and Amount of Funds”)
THE TENDER OFFER — Section 10 (“Background
of the Offer; Past Contacts or Negotiations with Checkmate”)
THE TENDER OFFER — Section 11 (“The
Merger Agreement; Other Agreements”)
THE TENDER OFFER — Section 15 (“Conditions
of the Offer”)
Item
8.
Interest in Securities of the Subject Company.
Regulation M-A Item 1008
(a) Securities
Ownership. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
THE TENDER OFFER — Section 8 (“Certain Information
Concerning Regeneron and Purchaser”)
THE TENDER OFFER — Section 11 (“The Merger Agreement;
Other Agreements”)
THE TENDER OFFER — Section 12 (“Purpose of the
Offer; Plans for Checkmate”)
SCHEDULE I — Information Relating to Regeneron and
Purchaser
(b) Securities
Transactions. None.
Item
9.
Persons/Assets Retained, Employed, Compensated or Used.
Regulation M-A Item 1009
(a) Solicitations
or Recommendations. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 3 (“Procedures for
Accepting the Offer and Tendering Shares”)
THE TENDER OFFER — Section 10 (“Background of
the Offer; Past Contacts or Negotiations with Checkmate”)
THE TENDER OFFER — Section 18 (“Fees and Expenses”)
Item
10.
Financial Statements.
Regulation M-A Item 1010
(a) Financial
Information. Not Applicable.
(b) Pro
Forma Information. Not Applicable.
Item
11.
Additional Information.
Regulation M-A Item 1011
(a) Agreements,
Regulatory Requirements and Legal Proceedings. The information set forth in the Offer to Purchase under the following captions
is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER — Section 10 (“Background of
the Offer; Past Contacts or Negotiations with Checkmate”)
THE TENDER OFFER — Section 11 (“The Merger Agreement;
Other Agreements”)
THE TENDER OFFER — Section 12 (“Purpose of the
Offer; Plans for Checkmate”)
THE TENDER OFFER — Section 13 (“Certain Effects
of the Offer”)
THE TENDER OFFER — Section 16 (“Certain Legal
Matters; Regulatory Approvals”)
(c) Other
Material Information. The information set forth in the Offer to Purchase and the Letter of Transmittal is incorporated herein by reference.
Item
12.
Exhibits.
Regulation M-A Item 1016
Exhibit No. |
|
Description |
(a)(1)(A)* |
|
Offer to Purchase, dated May 2, 2022. |
|
|
|
(a)(1)(B)* |
|
Letter of Transmittal. |
|
|
|
(a)(1)(C)* |
|
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
|
|
|
(a)(1)(D)* |
|
Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. |
|
|
|
(a)(1)(E)* |
|
Summary Advertisement as published in The New York Times on May 2, 2022 |
|
|
|
(a)(1)(F)* |
|
Joint Press Release issued by Regeneron Pharmaceuticals, Inc. and Checkmate Pharmaceuticals, Inc. on April 19, 2022 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by Regeneron Pharmaceuticals, Inc. with the U.S. Securities and Exchange Commission on April 19, 2022). |
|
|
|
(a)(1)(G)* |
|
Social Media Posts from April 19, 2022 (incorporated by reference to Exhibit 99.2 to the Schedule TO-C filed by Regeneron Pharmaceuticals, Inc. with the U.S. Securities and Exchange Commission on April 19, 2022). |
|
|
|
(d)(1)* |
|
Agreement and Plan of Merger among Checkmate Pharmaceuticals, Inc., Regeneron Pharmaceuticals, Inc., and Scandinavian Acquisition Sub, Inc., dated April 18, 2022 (incorporated by reference to Exhibit 2.1 to the Form 8-K filed by Checkmate Pharmaceuticals, Inc. with the U.S. Securities and Exchange Commission on April 19, 2022). |
|
|
|
(d)(2)* |
|
Confidentiality Agreement dated March 22, 2022, between Checkmate Pharmaceuticals, Inc. and Regeneron Pharmaceuticals, Inc. |
|
|
|
(d)(3)* |
|
Tender and Support Agreement, dated as of April 18, 2022, by and among Regeneron Pharmaceuticals, Inc., Scandinavian Acquisition Sub, Inc. and certain Stockholders of Checkmate Pharmaceuticals, Inc.(incorporated by reference to Exhibit 99.1 to the Form 8-K filed by Checkmate Pharmaceuticals, Inc. with the U.S. Securities and Exchange Commission on April 19, 2022). |
|
|
|
(d)(4)* |
|
Exclusivity Agreement, dated March 22, 2022, by and between Regeneron Pharmaceuticals, Inc. and Checkmate Pharmaceuticals, Inc. |
|
|
|
(g) |
|
None. |
|
|
|
(h) |
|
None. |
|
|
|
107* |
|
Filing fee table |
* Previously
filed.
Item
13.
Information Required by Schedule 13E-3.
Not applicable.
SIGNATURES
After due inquiry and to the best of their knowledge
and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: May 20, 2022
|
SCANDINAVIAN ACQUISITION SUB, INC. |
| By: | /s/ Nouhad Husseini |
| Name: | Nouhad Husseini |
| Title: | Managing Director |
|
REGENERON PHARMACEUTICALS, INC. |
| By: | /s/ Joseph J. LaRosa |
| Name: | Joseph J. LaRosa |
| Title: | Executive Vice President, General Counsel and Secretary |
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