UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(d)(4) OF THE SECURITIES
EXCHANGE ACT OF 1934
(Amendment No. ____)
Theseus Pharmaceuticals, Inc.
(Name of Subject Company)
Theseus Pharmaceuticals, Inc.
(Name of Person(s) Filing Statement)
Common Stock, $0.0001 par value per share
(Title of Class of Securities)
88369M1018
(CUSIP Number of Common Stock)
Bradford D. Dahms
President and Chief Financial Officer
Theseus Pharmaceuticals, Inc.
314 Main Street
Cambridge, Massachusetts 02142
(857) 400-9491
(Name, address, and telephone number of person
authorized to receive notices and communications
on behalf of the persons filing statement)
With a copy to:
Robert Puopolo, Esq.
Blake Liggio, Esq.
Marishka DeToy, Esq.
Goodwin Procter LLP
100 Northern Ave
Boston, MA 02210
(617) 570-1000 |
x |
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
This Schedule 14D-9C consists of the following
document related to the proposed acquisition of Theseus Pharmaceuticals, Inc. (the “Company” or “Theseus”), pursuant
to the terms of an Agreement and Plan of Merger, dated as of December 22, 2023 (the “Merger Agreement”), among the Company,
Concentra Biosciences, LLC, a Delaware limited liability company (“Concentra”), and Concentra Merger Sub II, Inc., a Delaware
corporation and a wholly-owned subsidiary of Concentra (“Merger Sub”):
| (1) | Press release, dated December 22, 2023, issued by the Company, a copy of which is attached hereto as
Exhibit 99.1 and incorporated herein by reference. |
The item listed above was first used or made available
on December 22, 2023.
Additional Information and Where to Find It
The tender offer (the “Offer”) described
in this Schedule 14D-9C has not yet commenced, and this Schedule 14D-9C is neither a recommendation, nor an offer to purchase nor a solicitation
of an offer to sell any shares of the common stock of Theseus or any other securities. On the commencement date of the Offer, a tender
offer statement on Schedule TO, including an offer to purchase, a letter of transmittal and related documents, will be filed with the
Securities and Exchange Commission (“SEC”) by Concentra and its acquisition subsidiary, and a Solicitation/Recommendation
Statement on Schedule 14D-9 will be filed with the SEC by Theseus. The Offer to purchase the outstanding shares of the common stock of
Theseus will only be made pursuant to the offer to purchase, the letter of transmittal and related documents filed as a part of the Schedule
TO. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A LETTER OF TRANSMITTAL
AND RELATED DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 REGARDING THE OFFER, AS THEY MAY BE AMENDED
OR SUPPLEMENTED FROM TIME TO TIME, WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION THAT INVESTORS AND SECURITY
HOLDERS SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SHARES, INCLUDING THE TERMS AND CONDITIONS OF THE OFFER. Investors
and security holders may obtain a free copy of these statements (when available) and other documents filed with the SEC at the website
maintained by the SEC at www.sec.gov or by directing such requests to the information agent for the Offer, which will be named in the
tender offer statement. Investors and security holders may also obtain, at no charge, the documents filed or furnished to the SEC by Theseus
under the “Investors & Media” section of Theseus’ website at www.theseusrx.com.
Cautionary Statement Regarding Forward-Looking
Statements
This Schedule 14D-9C
contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, including,
but not limited to, statements regarding Theseus’ beliefs and expectations and statements about the proposed Offer, Merger and related
transactions contemplated by the Merger Agreement (the “Transactions”), including the timing of and closing conditions to
the Transactions; the potential effects of the proposed Transactions on Theseus; and the potential payment of proceeds to the Theseus
stockholders, if any, pursuant to the Contingent Value Rights Agreement (“CVR Agreement”). These statements may be identified
by their use of forward-looking terminology including, but not limited to, “anticipate,” “believe,” “continue,”
“could,” “estimate,” “expect,” “goal,” “intend,” “may,” “might,”
“plan,” “potential,” “predict,” “project,” “should,” “target,”
“will,” and “would,” and similar words expressions are intended to identify forward-looking statements. Forward-looking
statements are neither historical facts nor assurances of future performance and involve risks and uncertainties that could cause actual
results to differ materially from those projected, expressed or implied by such forward-looking statements. These risks and uncertainties
include, but are not limited to: the possibility that various closing conditions set forth in the Merger Agreement may not be satisfied
or waived, including uncertainties as to the percentage of Theseus’ stockholders tendering their shares in the Offer; the possibility
that competing offers will be made; Theseus’ ability to retain key personnel; the risk that the Transactions may not be completed
in a timely manner, or at all, which may adversely affect Theseus’ business and the price of its common stock; significant costs
associated with the proposed Transactions; the risk that any stockholder litigation in connection with the Transactions may result in
significant costs of defense, indemnification and liability; the risk that activities related to the CVR Agreement may not result in any
value to the Theseus stockholders; and other risks and uncertainties discussed in in Theseus’ most recent annual and quarterly reports
filed with the SEC as well as in Theseus’ subsequent filings with the SEC. As a result of such risks and uncertainties, Theseus’
actual results may differ materially from any future results, performance or achievements discussed in or implied by the forward-looking
statements contained herein. There can be no assurance that the proposed Transactions will in fact be consummated. Theseus cautions investors
not to unduly rely on any forward-looking statements.
The forward-looking statements contained in this
Schedule 14D-9C are made as of the date hereof, and Theseus undertakes no obligation to update any forward-looking statements, whether
as a result of future events, new information or otherwise, except as expressly required by law. All forward-looking statements in this
document are qualified in their entirety by this cautionary statement.
Exhibit 99.1
Theseus Pharmaceuticals Enters into Agreement
to Be Acquired by Concentra Biosciences for between $3.90 and $4.05 in Cash per Share Plus a Contingent Value Right
Cambridge, Mass., December 22, 2023 /PRNewswire/
-- Theseus Pharmaceuticals, Inc. (NASDAQ: THRX) (“Theseus” or the “Company”), a clinical-stage biopharmaceutical
company focused on improving the lives of cancer patients through the discovery, development, and commercialization of transformative
targeted therapies, today announced it has entered into a definitive merger agreement (the “Merger Agreement”) whereby Concentra
Biosciences, LLC (“Concentra”) will acquire Theseus for a price per share of Theseus common stock (“Theseus common
stock”) of between $3.90 and $4.05 in cash, consisting of (i) a base cash price of $3.90 per share (the “Base Price”) and (ii) an additional cash amount of
not more than $0.15 per share at the closing of the merger (together with the Base Price, the “Cash Amount”), plus one
non-tradeable contingent value right (“CVR”) representing the right to receive 80% of the net proceeds from any license or disposition of Theseus’ programs effected within 180
days of closing of the merger and 50% of the potential aggregate value of certain specified potential cost savings realized within 180
days of the close of the merger, pursuant to a Contingent Value Rights Agreement (the “CVR Agreement”).
Following a thorough review process conducted
with the assistance of its legal and financial advisors, Theseus’ Board of Directors has determined that the acquisition by Concentra
– of which Tang Capital Partners, LP is the controlling shareholder – is in the best interests of all Theseus shareholders,
and has unanimously approved the Merger Agreement.
Pursuant and subject to the terms of the Merger
Agreement, a wholly owned subsidiary of Concentra will commence a tender offer (the “Offer”) by January 9, 2024 to
acquire all outstanding shares of Theseus common stock. Closing of the Offer is subject to certain conditions, including the tender of
Theseus common stock representing at least a majority of the total number of outstanding shares; the availability of at least $187.6
million of cash, net of transaction costs, wind-down costs and other liabilities, at closing, and other customary closing conditions. Theseus shareholders holding approximately 59% of Theseus common stock have signed support agreements under which such shareholders agreed
to tender their shares in the Offer and support the merger. The acquisition is expected to close in
February 2024.
Advisors
Leerink Partners is acting as exclusive financial
advisor and Goodwin Procter LLP is acting as legal counsel to Theseus. Gibson, Dunn & Crutcher LLP is acting as legal counsel to Concentra.
About Theseus Pharmaceuticals, Inc.
Theseus
is a clinical-stage biopharmaceutical company focused on improving the lives of cancer patients through the discovery, development, and
commercialization of transformative targeted therapies. Theseus has focused
on the development of THE-349, a fourth-generation, selective epidermal growth factor receptor inhibitor for C797X-mediated resistance
to first- or later-line osimertinib treatment in patients with non-small cell lung cancer, a pan-variant BCR-ABL inhibitor for the treatment
of relapsed/refractory chronic myeloid leukemia and newly diagnosed Philadelphia chromosome-positive acute lymphoblastic leukemia, and
a next-generation, highly selective, pan-variant KIT inhibitor for the treatment of early-line GIST. For more information, visit www.theseusrx.com.
Cautionary Statement Regarding Forward Looking
Statements
This release contains
“forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, including, but not
limited to, statements regarding Theseus’ beliefs and expectations and statements about the proposed Offer, merger and related transactions
contemplated by the Merger Agreement (the “Transactions”), including the timing of and closing conditions to the Transactions;
the potential effects of the proposed Transactions on Theseus; and the potential payment of proceeds to the Theseus stockholders, if any,
pursuant to the CVR Agreement. These statements may be identified by their use of forward-looking terminology including, but not limited
to, “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,”
“goal,” “intend,” “may,” “might,” “plan,” “potential,” “predict,”
“project,” “should,” “target,” “will,” and “would,” and similar words expressions
are intended to identify forward-looking statements. Forward-looking statements are neither historical facts nor assurances of future
performance and involve risks and uncertainties that could cause actual results to differ materially from those projected, expressed or
implied by such forward-looking statements. These risks and uncertainties include, but are not limited to: the possibility that various
closing conditions set forth in the Merger Agreement may not be satisfied or waived, including uncertainties as to the percentage of Theseus’
stockholders tendering their shares in the Offer; the possibility that competing offers will be made; Theseus’ ability to retain
key personnel; the risk that the Transactions may not be completed in a timely manner, or at all, which may adversely affect Theseus’
business and the price of its common stock; significant costs associated with the proposed Transactions; the risk that any stockholder
litigation in connection with the Transactions may result in significant costs of defense, indemnification and liability; the risk that
activities related to the CVR Agreement may not result in any value to the Theseus stockholders; and other risks and uncertainties discussed
in Theseus’ most recent annual and quarterly reports filed with the Securities and Exchange Commission (the “SEC”)
as well as in Theseus’ subsequent filings with the SEC. As a result of such risks and uncertainties, Theseus’ actual results
may differ materially from any future results, performance or achievements discussed in or implied by the forward-looking statements contained
herein. There can be no assurance that the proposed Transactions will in fact be consummated. Theseus cautions investors not to unduly
rely on any forward-looking statements.
The forward-looking statements
contained in this release are made as of the date hereof, and Theseus undertakes no obligation to update any forward-looking statements,
whether as a result of future events, new information or otherwise, except as expressly required by law. All forward-looking statements
in this document are qualified in their entirety by this cautionary statement.
Additional Information and Where to Find It
The Offer described in this release has not yet
commenced, and this release is neither a recommendation, nor an offer to purchase nor a solicitation of an offer to sell any shares of
the common stock of Theseus or any other securities. On the commencement date of the Offer, a tender offer statement on Schedule TO, including
an offer to purchase, a letter of transmittal and related documents, will be filed with the SEC by Concentra and its acquisition subsidiary,
and a Solicitation/Recommendation Statement on Schedule 14D-9 will be filed with the SEC by Theseus. The Offer to purchase the outstanding
shares of the common stock of Theseus will only be made pursuant to the offer to purchase, the letter of transmittal and related documents
filed as a part of the Schedule TO. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE TENDER OFFER MATERIALS (INCLUDING THE
OFFER TO PURCHASE, A LETTER OF TRANSMITTAL AND RELATED DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 REGARDING
THE OFFER, AS THEY MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION THAT INVESTORS AND SECURITY HOLDERS SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SHARES, INCLUDING
THE TERMS AND CONDITIONS OF THE OFFER. Investors and security holders may obtain a free copy of these statements (when available)
and other documents filed with the SEC at the website maintained by the SEC at www.sec.gov or by directing such requests to the information
agent for the Offer, which will be named in the tender offer statement. Investors and security holders may also obtain, at no charge,
the documents filed or furnished to the SEC by Theseus under the “Investors & Media” section of Theseus’ website
at www.theseusrx.com.
For further information, please contact:
Theseus Pharmaceuticals, Inc.
IR@theseusrx.com
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