This Amendment No. 2 (this “Amendment No. 2”) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 (as further amended or supplemented from time to time, the “Schedule 14D-9”) previously filed by RayzeBio, Inc., a Delaware corporation (the “Company” or “RayzeBio”), with the Securities and Exchange Commission on January 25, 2024, relating to the tender offer statement on Schedule TO filed with the Securities and Exchange Commission on January 25, 2024 by Bristol-Myers Squibb Company, a Delaware corporation (“Bristol-Myers Squibb”) and Rudolph Merger Sub Inc., a Delaware corporation and wholly owned subsidiary of Bristol-Myers Squibb (“Purchaser”), pursuant to the terms and subject to the conditions of an Agreement and Plan of Merger, dated as of December 25, 2023 (the “Merger Agreement”), by and among the Company, Bristol-Myers Squibb and, by way of a Joinder dated December 26, 2023, Purchaser, to acquire all of the outstanding shares of common stock of RayzeBio, $0.0001 par value per share (the “Shares”) at an offer price of $62.50 per Share in cash, without interest, subject to any applicable withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated January 25, 2024. Any capitalized term used and not otherwise defined herein shall have the meaning ascribed to such term in the Schedule 14D-9.
Since the initial filing of the Schedule 14D-9, two complaints have been filed by purported stockholders, challenging certain disclosures in the Schedule 14D-9 (the “Complaints”). In addition, RayzeBio has received eleven demand letters and one draft complaint, all of which generally seek that certain allegedly omitted information in the Schedule 14D-9 be disclosed (collectively, the “Demand Letters”). RayzeBio believes that the disclosures originally set forth in the Schedule 14D-9 comply fully with all applicable laws and denies the allegations in the Complaints and Demand Letters. However, solely to avoid the risk of delay to the Transactions, to minimize any associated costs, risks, and uncertainties, and to provide additional information to its stockholders, RayzeBio is voluntarily supplementing certain disclosures in the Schedule 14D-9 with the information set forth below under the sections titled “Item 3. Past Contacts, Transactions, Negotiations and Agreements” and “Item 4. The Solicitation or Recommendation” (collectively, the “Supplemental Disclosures”). Nothing in the Supplemental Disclosures shall be deemed an admission of the legal merit, necessity or materiality under applicable laws of any of the disclosures set forth herein. To the contrary, RayzeBio specifically denies all allegations in the Complaints and Demand Letters that any additional disclosure was or is required or material.
Except as otherwise set forth below, the information set forth in the Schedule 14D-9, as amended, remains unchanged and is incorporated herein by reference as relevant to the items in this Amendment No. 2. This Amendment No. 2 is being filed to reflect certain updates as set forth below.
Item 3. Past Contacts, Transactions, Negotiations and Agreements.
Item 3 “Past Contacts, Transactions, Negotiations and Agreements” of the Schedule 14D-9 is hereby amended and supplemented as follows:
1. By removing the strikethrough text and adding the bold text to the below paragraph under the section titled “—Arrangements between RayzeBio and its Executive Officers, Directors and Affiliates—Potential for Future Arrangements” on page 8 as follows:
“ While, as As of the date of this Schedule 14D-9, to our knowledge, none of RayzeBio’s current directors or executive officers has entered into any employment, equity contribution or other agreement, arrangement or understanding with Bristol-Myers Squibb or its affiliates regarding continued service with Bristol-Myers Squibb or its affiliates after the Effective Time. In addition, prior to the execution of the Merger Agreement, to our knowledge, none of RayzeBio’s current directors or executive officers had any discussions with Bristol-Myers Squibb or its affiliates regarding the terms of their continued service with Bristol-Myers Squibb or its affiliates after the Effective Time. However, it is possible that Bristol-Myers Squibb or its affiliates may enter into service, employment or other arrangements with RayzeBio’s directors or executive officers in the future.”
Item 4. The Solicitation or Recommendation.
Item 4 “The Solicitation or Recommendation” of the Schedule 14D-9 is hereby amended and supplemented as follows:
1. By adding the bold text to the below paragraph under the section titled “—Background of the Offer and the Merger” on page 12 as follows:
“Later that same day, on a call that was scheduled the prior week between Dr. Boerner and Dr. Song, Dr. Boerner communicated Bristol-Myers Squibb’s interest in a potential acquisition of RayzeBio and indicated that Bristol-Myers