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. 8)
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 the 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: $1,460,365
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Filing Party:
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Amgen Inc. and Arena Acquisition Company
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Form of Registration No.: Schedule TO.
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Date Filed:
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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 Third-Party Tender Offer)
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This Amendment No. 8 (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.
Item 11. Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented as follows:
The information set forth in Section 17 Certain Legal Matters; Regulatory Approvals Litigation of the Offer to
Purchase is hereby amended and restated in its entirety to read as follows:
Between August 28, 2013 and September 16,
2013, nine plaintiffs filed purported class action lawsuits against Onyx, its directors, Amgen and Purchaser, and unnamed John Doe defendants in connection with the proposed Merger. Seven of those purported class actions were brought in
the Superior Court of the State of California for the County of San Mateo, captioned
Lawrence I. Silverstein and Phil Rosen v. Onyx Pharmaceuticals, Inc., et al.
(August 28, 2013) (
Silverstein
),
Laura Robinson v.
Onyx Pharmaceuticals, Inc., et al.
(originally filed in the Superior Court for the County of San Francisco on August 28, 2013, and re-filed in the Superior Court for the County of San Mateo on August 29, 2013)
(
Robinson
),
John Solak v. Onyx Pharmaceuticals, Inc., et al.
(August 30, 2013),
Louisiana Municipal Police Employees Retirement System and Hubert Chow v. Onyx Pharmaceuticals, Inc., et al.
(September 3, 2013)
(
Louisiana Municipal
),
Laurine Jonopulos v. Onyx Pharmaceuticals, Inc., et al.
(September 4, 2013) (
Jonopulos
),
Clifford G. Martin v. Onyx Pharmaceuticals, Inc., et al
. (September 9, 2013) and
Merrill L. Magowan v. Onyx Pharmaceuticals, Inc. et al.
(September 9, 2013). The eighth and ninth purported class actions were brought in the Court of Chancery of the State of Delaware, captioned
Mark D. Smilow, IRA v. Onyx
Pharmaceuticals Inc., et al.
(August 29, 2013) and
William L. Fitzpatric v. Onyx Pharmaceuticals, Inc., et al.
(September 16, 2013). On September 5, 2013, the plaintiff in the
John Solak
case filed a request for
dismissal of the case without prejudice. On September 10, 2013, the plaintiff in the
Mark D. Smilow, IRA
case filed a notice and proposed order of voluntary dismissal of the case without prejudice. On September 10, 2013, plaintiffs
in the
Silverstein
and
Louisiana Municipal
cases filed an amended complaint alleging substantially the same claims and seeking substantially the same relief as in their individual purported class action lawsuits. Each of the lawsuits
alleges that the Onyx director defendants breached their fiduciary duties to Onyx shareholders, and that the other defendants aided and abetted such breaches, by seeking to sell Onyx through an allegedly unfair process and for an unfair price and on
unfair terms. The
Merrill L. Magowan
and
William L. Fitzpatric
complaints and the amended complaint filed in the
Silverstein
and
Louisiana Municipal
cases also allege that the individual defendants breached their
fiduciary duties with respect to the contents of the tender offer solicitation material. Each of the lawsuits seeks, among other things, equitable relief that would enjoin the consummation of the proposed Merger, rescission of the Merger Agreement
(to the extent it has already been implemented), and attorneys fees and costs, and certain of the lawsuits seek other relief. On September 18, 2013, plaintiffs in the
Silverstein
and
Louisiana Municipal
cases filed a
motion for limited expedited discovery. On September 20, 2013, the
Silverstein
,
Robinson
,
Louisiana Municipal
and
Jonopulos
cases were designated as complex and were assigned to the Honorable Marie S.
Weiner. Also on September 20, 2013,
Silverstein
and
Louisiana Municipal
s
ex parte
application to advance the hearing date on their motion for limited expedited discovery was deferred. The plaintiffs have informed
defendants counsel that they plan to re-present their application to Judge Weiner on September 24, 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 24, 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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