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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
FORTY SEVEN, INC.
(Name of Subject Company (Issuer))
TORO MERGER SUB, INC.
a wholly owned subsidiary of
GILEAD SCIENCES, INC.
(Names of Filing Persons (Offeror))
Common Stock, Par Value $0.0001 Per Share
(Title of Class of Securities)
34983P104
(Cusip Number of Class of Securities)
Brett A. Pletcher, Esq.
Executive Vice President, Corporate Affairs, General Counsel and Corporate Secretary
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)
Copies to:
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Stephen F. Arcano
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, NY 10001
(212) 735-3542
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Graham Robinson
Skadden, Arps, Slate, Meagher & Flom LLP
500 Boylston Street
Boston, MA 02116
(617) 573-4850
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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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$4,949,381,117.36
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$642,429.67
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*
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Estimated
for purposes of calculating the filing fee only. The transaction valuation was calculated as the sum of (i) 48,151,481 outstanding shares of common
stock, par value $0.0001 per share (the "Shares"), of Forty Seven, Inc. ("Forty Seven") multiplied by $95.50, (ii) 1,341,064 Shares issuable pursuant to outstanding stock options that
have vested (or are anticipated to vest prior to the completion of the transaction) multiplied by $95.50, and (iii) 2,924,066 Shares issuable pursuant to outstanding unvested stock options
multiplied by $76.21 (which is $95.50 minus the weighted average exercise price for such options of $19.29 per share). The calculation of the filing fee is based on information provided by Forty Seven
as of February 29, 2020.
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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 2020, issued August 23, 2019, by multiplying the transaction value by 0.0001298
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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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None
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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.
Check the following box if the filing is a final amendment reporting the results of the tender offer. o
This
Tender Offer Statement on Schedule TO (this "Schedule TO") relates to the offer by Toro Merger Sub, Inc., a Delaware corporation ("Purchaser"), and Gilead
Sciences, Inc., a Delaware corporation ("Parent"), to purchase all outstanding shares of common stock, $0.0001 par value per share ("Shares"), of Forty Seven, Inc., a Delaware
corporation ("Forty Seven"), at a price of $95.50 per Share, net to the holder in cash, without interest and subject to any withholding of taxes, upon the terms and subject to the conditions described
in the Offer to Purchase dated March 10, 2020 (together with any amendments or supplements thereto, the "Offer to Purchase") and in the accompanying Letter of Transmittal (together with any
amendments or supplements thereto and with the Offer to Purchase, the "Offer"), which are annexed to and filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
Purchaser is a wholly owned subsidiary of Parent. This Schedule TO is being filed on behalf of Parent and Purchaser. Unless otherwise indicated, references to sections in this
Schedule TO are references to sections of the Offer to Purchase. A copy of the Agreement and Plan of Merger, dated as of March 1, 2020, among Forty Seven, Parent and Purchaser is
attached as Exhibit (d)(1) hereto and incorporated herein by reference with respect to Items 4 through 11 of this Schedule TO.
ITEM 1. SUMMARY TERM SHEET.
The information set forth in the section of the Offer to Purchase titled "Summary Term Sheet" is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) The
subject company and the issuer of the securities subject to the Offer is Forty Seven, Inc. Its principal executive office is located at 1490 O'Brien Drive,
Suite A, Menlo Park, CA 94025, and its telephone number is (650) 352-4150.
(b) This
Schedule TO relates to Shares. According to Forty Seven, as of the close of business on February 29, 2020, there were (i) 48,151,481 Shares
issued and outstanding and (ii) 4,265,130 Shares subject to issuance pursuant to outstanding options to acquire Shares.
(c) The
information concerning the principal market, if any, in which the Shares are traded and certain high and low sales prices for the Shares in the principal market in
which the Shares are traded set forth in Section 6"Price Range of Shares; Dividends" of the Offer to Purchase is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(a) - (c) The filing companies of this Schedule TO are (i) Parent and (ii) Purchaser. Each of Purchaser's and Parent's
principal executive office is located at c/o Gilead Sciences, Inc., 333 Lakeside Drive, Foster City, CA 94404, and the telephone number of each is (650) 574-3000.
The information regarding Purchaser and Parent set forth in Section 9"Certain Information Concerning Parent and Purchaser" and Schedule A of the Offer to Purchase is
incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION.
The information set forth in the Offer to Purchase is incorporated herein by reference.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a), (b) The information set forth in Section 8"Certain Information Concerning Forty Seven",
Section 9"Certain Information Concerning Parent and Purchaser", Section 10"Background of the Offer; Contacts with Forty Seven",
Section 11"Purpose of the Offer and Plans for Forty Seven; Summary of the Merger Agreement and Certain Other Agreements" and Schedule A of the Offer to Purchase is
incorporated herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(a), (c)(1) - (7) The information set forth in the sections of the Offer to Purchase titled "Summary Term Sheet" and "Introduction" and in
Section 6"Price Range of Shares; Dividends", Section 7"Possible Effects of the Offer on the Market for the Shares; NASDAQ Listing; Exchange Act Registration and
Margin Regulations" and Section 11"Purpose of the Offer and Plans for Forty Seven; Summary of the Merger Agreement and Certain Other Agreements" of the Offer to Purchase is
incorporated herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a), (d) The information set forth in the section of the Offer to Purchase titled "Summary Term Sheet" and in
Section 12"Source and Amount of Funds" of the Offer to Purchase is incorporated herein by reference.
(b) The
Offer is not subject to a financing condition.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
The information set forth in Section 9"Certain Information Concerning Parent and Purchaser",
Section 11"Purpose of the Offer and Plans for Forty Seven; Summary of the Merger Agreement and Certain Other Agreements" and Schedule A of the Offer to Purchase is
incorporated herein by reference.
ITEM 9. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED.
(a) The
information set forth in Section 3"Procedures for Tendering Shares", Section 10"Background of the Offer; Contacts with Forty
Seven" and Section 16"Fees and Expenses" of the Offer to Purchase is incorporated herein by reference.
ITEM 10. FINANCIAL STATEMENTS.
Not Applicable. In accordance with the instructions to Item 10 of the Schedule TO, the financial statements are not considered
material because:
(a) the
consideration offered consists solely of cash;
(b) the
Offer is not subject to any financing condition; and
(c) the
Offer is for all outstanding securities of the subject class.
ITEM 11. ADDITIONAL INFORMATION.
(a) The
information set forth in Section 7"Possible Effects of the Offer on the Market for the Shares; NASDAQ Listing; Exchange Act Registration and
Margin Regulations", Section 10"Background of the Offer; Contacts with Forty Seven", Section 11"Purpose of the Offer and Plans for Forty Seven; Summary of the
Merger Agreement and Certain Other Agreements" and Section 15"Certain Legal Matters; Regulatory Approvals" of the Offer to Purchase is incorporated herein by reference.
(c) The
information set forth in the Offer to Purchase is incorporated herein by reference.
ITEM 12. EXHIBITS.
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Index No.
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(a)(1)(A)*
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Offer to Purchase, dated March 10, 2020.
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(a)(1)(B)*
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Form of Letter of Transmittal.
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(a)(1)(C)*
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Form of Notice of Guaranteed Delivery.
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(a)(1)(D)*
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(E)*
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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)(F)*
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Form of Summary Advertisement, published March 10, 2020 in The Wall Street Journal.
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(a)(5)(A)
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Joint Press Release of Parent and Forty Seven, dated March 2, 2020 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Parent with the Securities and Exchange
Commission on March 2, 2020).
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(a)(5)(B)
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Investor Presentation, dated March 2, 2020 (incorporated by reference to the Tender Offer Statement on Schedule TO-C of Parent filed with the Securities and Exchange Commission on March 2,
2020).
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(a)(5)(C)
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Transcript of Investor Presentation Call on March 2, 2020 (incorporated by reference to the Tender Offer Statement on Schedule TO-C of Parent filed with the Securities and Exchange Commission on March 2,
2020).
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(a)(5)(D)
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Email sent to Parent employees on March 2, 2020 (incorporated by reference to the Tender Offer Statement on Schedule TO-C of Parent filed with the Securities and Exchange Commission on March 2,
2020).
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(a)(5)(E)
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Email sent to Parent Operating Group on March 2, 2020 (incorporated by reference to the Tender Offer Statement on Schedule TO-C of Parent filed with the Securities and Exchange Commission on March 2,
2020).
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(a)(5)(F)
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Frequently Asked Questions, sent to Parent Operating Group on March 2, 2020 (incorporated by reference to the Tender Offer Statement on Schedule TO-C of Parent filed with the Securities and Exchange
Commission on March 2, 2020).
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(a)(5)(G)
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Email sent to Forty Seven's employees on March 2, 2020 (incorporated by reference to the Tender Offer Statement on Schedule TO-C of Parent filed with the Securities and Exchange Commission on March 2,
2020).
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(a)(5)(H)
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Q&A provided to Forty Seven's employees on March 2, 2020 (incorporated by reference to the Tender Offer Statement on Schedule TO-C of Parent filed with the Securities and Exchange Commission on
March 2, 2020).
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(a)(5)(I)
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Tweet posted by Parent on March 2, 2020 (incorporated by reference to the Tender Offer Statement on Schedule TO-C of Parent filed with the Securities and Exchange Commission on March 2,
2020).
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(a)(5)(J)
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Transcript of Q&A at Cowen Health Care Conference on March 2, 2020 (incorporated by reference to the Tender Offer Statement on Schedule TO-C of Parent filed with the Securities and Exchange Commission on
March 3, 2020).
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(a)(5)(K)
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Op-ed by Daniel O'Day, posted on Parent's website on March 2, 2020 (incorporated by reference to the Tender Offer Statement on Schedule TO-C of Parent filed with the Securities and Exchange Commission on
March 3, 2020).
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Index No.
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(a)(5)(L)
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Tweet posted by Parent on March 2, 2020 (incorporated by reference to the Tender Offer Statement on Schedule TO-C of Parent filed with the Securities and Exchange Commission on March 3, 2020).
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(d)(1)
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Agreement and Plan of Merger, dated March 1, 2020, among Forty Seven, Parent and Purchaser (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Parent with the Securities
and Exchange Commission on March 2, 2020).
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(d)(2)
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Mutual Confidentiality Agreement, dated January 7, 2020, between Forty Seven and Parent (incorporated by reference to Exhibit (e)(2) to the Schedule 14D-9 filed by Forty Seven with the Securities and
Exchange Commission on March 10 2020).
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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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ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
Not applicable.
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:
March 10, 2020
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TORO MERGER SUB, INC.
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By:
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/s/ ANDREW D. DICKINSON
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Name:
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Andrew D. Dickinson
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Title:
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President and Treasurer
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GILEAD SCIENCES, INC.
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By:
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/s/ DANIEL P. O'DAY
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Name:
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Daniel P. O'Day
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Title:
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Chairman and Chief Executive Officer
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