Bristol Myers Squibb Co SC TO-T/A, filed Aug 16, 2022
Bristol Myers Squibb Co (BMY)
SC TO-T/A
2022-08-16
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Added on
October 18, 2026
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
(Amendment No. 4)
TURNING POINT THERAPEUTICS, INC.
(Name of Subject Company (Issuer))
RHUMBA MERGER SUB INC.
(Offeror)
A Wholly Owned Subsidiary of
BRISTOL-MYERS SQUIBB COMPANY
(Parent of Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, par value $0.0001 per share
(Title of Class of Securities)
90041T108
(CUSIP Number of Class of Securities)
Sandra Leung, Esq.
Executive Vice President & General Counsel
Casarine Chong, Esq.
Senior Vice President & Associate General Counsel
Bristol-Myers Squibb Company
430 East 29th Street, 14th Floor
New York, NY 10016
(212) 546-4200
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Daniel E. Wolf, P.C.
Sophia Hudson, P.C.
Jonathan L. Davis, P.C
Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
(212) 446-4800
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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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☒
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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.
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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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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
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This Amendment No. 4 to the Tender Offer Statement on Schedule TO (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on
June 17, 2022 (as it may be amended and supplemented from time to time, the “Schedule TO”) and relates to the offer by Rhumba Merger Sub Inc., a Delaware corporation (“Purchaser”)
and a wholly owned subsidiary of Bristol-Myers Squibb Company, a Delaware corporation (“Parent”), to acquire all of the outstanding shares of common stock, par value $0.0001 per share (the “Shares”), of Turning Point Therapeutics, Inc., a Delaware corporation, for $76.00 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 June 17, 2022 (as amended or supplemented from time to time, the “Offer to Purchase”), and in the related Letter of Transmittal (as amended or supplemented from time
to time, the “Letter of Transmittal” and together with the Offer to Purchase, the “Offer”), copies of which are attached to the Schedule TO as Exhibits (a)(1)(i) and
(a)(1)(ii), respectively.
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.
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Items 1
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through 9 and Item 11.
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Items 1 through 9 and Item 11 of the Schedule TO are hereby amended and supplemented as follows:
“The Offer expired at 5:00 p.m., Eastern Time, on August 15, 2022, and the Offer was not extended. The Depositary for the Offer has advised Purchaser that, as of the Expiration
Time, a total of 41,896,678 Shares (excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been received, as defined by Section 251(h)(6) of the DGCL) were validly tendered and not
validly withdrawn pursuant to the Offer, representing approximately 84% of the issued and outstanding Shares as of the Expiration Time. As of the Expiration Time, the number of Shares validly tendered and not validly withdrawn pursuant to the Offer
satisfied the Minimum Condition. In addition, the Depositary has advised that, as of such time, Notices of Guaranteed Delivery have been delivered with respect to 1,800,712 additional Shares that have not yet been
“received”, as defined by Section 251(h)(6) of the DGCL.
The Purchaser expects to promptly accept for payment, on August 17, 2022, all Shares validly tendered and not validly withdrawn pursuant to the Offer.
The Purchaser will promptly pay for all Shares accepted pursuant to the Offer. Parent expects the Merger to close on August 17, 2022, promptly following the acceptance of all Shares validly tendered and not validly withdrawn pursuant to the Offer,
with Purchaser merging with and into Turning Point, with Turning Point continuing as the surviving corporation and a wholly owned subsidiary of Parent.
Following the consummation of the Merger, the Shares will be delisted and will cease to trade on the Nasdaq. Parent and Purchaser intend to take steps
to cause the termination of the registration of the Shares under the Exchange Act and suspend all of Turning Point’s reporting obligations under the Exchange Act as promptly as practicable.
A copy of the press release issued by Parent on August 16, 2022 announcing the expiration and results of the Offer is attached hereto as Exhibit (a)(5)(ix).”
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Item 11.
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Additional Information. |
The information set forth in Section 16—“Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase is hereby amended as follows:
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1.
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By deleting the second paragraph under the section entitled “—U.S. Antitrust” on page 51 in its entirety and replacing it with the following paragraphs:
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“Each of Parent and Turning Point filed a Premerger Notification and Report Form under the HSR Act with respect to the Offer and the Merger with the Antitrust Division and the FTC on July 29, 2022. The waiting period
under the HSR Act expired on August 15, 2022, at 11:59 p.m., Eastern Time. Accordingly, the condition to the Offer requiring that the waiting period (or any extension thereof) applicable to the Offer under the HSR Act shall have expired or been
terminated has been satisfied. The Offer continues to be subject to the remaining conditions set forth in the Offer to Purchase. See “—Section 15—Conditions to the Offer”.
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2.
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By adding two new sentences as the last two sentences under the section entitled “—Other Antitrust Approvals” on page 52:
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On July 20, 2022, Parent submitted a filing with the FCO under the German Act Against Restraints of Competition. On August 15, 2022, Parent and Turning Point received clearance from the FCO with respect to the Offer
and the Merger.
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Item 12.
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Exhibits.
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Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
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Exhibit
No.
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Description
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Press Release issued by Bristol-Myers Squibb Company, dated August 16, 2022.
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SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Date: August 16, 2022
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RHUMBA MERGER SUB INC.
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By:
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/s/ Sandra Ramos-Alves
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Name:
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Sandra Ramos-Alves
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Title:
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Vice President and Treasurer
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BRISTOL-MYERS SQUIBB COMPANY
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By:
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/s/ Kimberly Jablonski
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Name:
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Kimberly M. Jablonski
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Title:
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Corporate Secretary
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Exhibit 99.1 (a)(5)(ix)
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Bristol Myers Squibb and Turning Point Therapeutics Announce Expiration of HSR Act Waiting Period and Clearance from
Federal Cartel Office of Germany Related to Pending Acquisition of Turning Point Therapeutics
Tuesday, August 16, 2022
(NEW YORK & SAN DIEGO)-- Bristol Myers Squibb (NYSE:BMY) and Turning Point Therapeutics, Inc. (NASDAQ:TPTX) (“Turning Point”) today announced the expiration of the waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”), and the receipt of merger control clearance from the Federal Cartel Office of Germany (“FCO”), in connection with the
previously announced offer (the “Offer”) to acquire all outstanding shares of common stock of Turning Point at a price of $76.00 per share in an all-cash transaction for total consideration of approximately $4.1 billion. The expiration of the HSR
Act waiting period occurred at 11:59 p.m. Eastern Time on August 15, 2022, and the FCO clearance was received on August 15, 2022. The Offer expired at 5:00 p.m. Eastern Time on August 15, 2022 (the “Expiration Time”), and the Offer was not
extended.
Equiniti Trust Company, the depositary for the Offer has advised that, as of the Expiration Time, approximately 41,896,678 shares of common stock were validly tendered, and not validly withdrawn pursuant to Offer,
representing approximately 84% of the issued and outstanding shares of common stock.
The parties expect the transaction to close on August 17, 2022, promptly following the acceptance of all shares of common stock validly tendered and not validly withdrawn pursuant to the Offer.
Turning Point shareholders can direct questions regarding the Offer to MacKenzie Partners, Inc., the information agent for the Offer, toll free, at 1-800-322-2885.
About Bristol Myers Squibb
Bristol Myers Squibb is a global biopharmaceutical company whose mission is to discover, develop and deliver innovative medicines that help patients prevail over serious diseases. For more information about
Bristol Myers Squibb, visit us at BMS.com or follow us on LinkedIn, Twitter, YouTube, Facebook, and Instagram.
About Turning Point Therapeutics Inc.
Turning Point Therapeutics is a clinical-stage precision oncology company with a pipeline of investigational drugs designed to address key limitations of existing cancer therapies. The company’s lead drug
candidate, repotrectinib, is a next-generation kinase inhibitor targeting the ROS1 and TRK oncogenic drivers of non-small cell lung cancer and advanced solid tumors. Repotrectinib, which is being studied in a registrational Phase 2 study in
adults and a Phase 1/2 study in pediatric patients, has shown antitumor activity and durable responses among kinase inhibitor treatment-naïve and pre-treated patients. The company’s pipeline of precision oncology drug candidates is being studied
across a variety of solid tumors. The company is driven to develop therapies that mark a turning point for patients in their cancer treatment. For more information, visit www.tptherapeutics.com.
Additional Information about the Offer and Where to Find It
This communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell securities, nor is it a substitute for the tender offer materials that Bristol
Myers Squibb and Rhumba Merger Sub Inc. (“Offeror”) filed with the SEC. At the time the tender offer was commenced, Bristol Myers Squibb caused Offeror to file a tender offer statement on Schedule TO and Turning Point filed a recommendation
statement on Schedule 14D-9. INVESTORS AND TURNING POINT’S STOCKHOLDERS ARE STRONGLY ADVISED TO READ THE TENDER OFFER STATEMENT AND THE RELATED SOLICITATION/ RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 FILED BY TURNING POINT WITH THE SEC, AS
AMENDED OR SUPPLEMENTED FROM TIME TO TIME, BECAUSE THEY CONTAIN IMPORTANT INFORMATION THAT SHOULD BE CONSIDERED BY TURNING POINT’S INVESTORS BEFORE ANY DECISION IS MADE WITH RESPECT TO THE TENDER OFFER. These documents are available at no charge
on the SEC’s website at www.sec.gov. In addition, a copy of the offer to purchase, letter of transmittal and certain other related tender offer documents may be obtained free of charge at www.bms.com or by directing a request to
Bristol Myers Squibb, Office of the Corporate Secretary, 430 East 29th Street, 14th Floor, New York, New York 10154-0037. A copy of the tender offer statement and the solicitation/recommendation statement are made available to all stockholders of
Turning Point free of charge at www.tptherapeutics.com.
In addition to the offer to purchase, the related letter of transmittal and certain other offer documents, as well as the solicitation/recommendation statement, Bristol Myers Squibb and Turning Point file
annual, quarterly and special reports, proxy statements and other information with the SEC. You may read any reports, statements or other information filed by Bristol Myers Squibb or Turning Point with the SEC at no charge on the SEC’s website
at www.sec.gov.
Cautionary Statement Regarding Forward-Looking Statements
This communication contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, regarding,
among other things, the acquisition of Turning Point by Bristol Myers Squibb. These statements may be identified by the fact they use words such as “should,” “could,” “expect,” “anticipate,” “estimate,” “target,” “may,” “project,” “guidance,”
“intend,” “plan,” “believe,” “will” and other words and terms of similar meaning and expression in connection with any discussion of future operating or financial performance, although not all forward-looking statements contain such terms. All
statements that are not statements of historical facts are, or may be deemed to be, forward-looking statements. These statements are only predictions, and such forward-looking statements are based on current expectations and involve inherent risks
and uncertainties, including factors that could delay, divert or change any of them, and could cause actual outcomes and results to differ materially from current expectations. No forward-looking statement can be guaranteed. Actual results may
differ materially from current expectations because of numerous risks and uncertainties including with respect to (i) the timing of the closing of the merger, (ii) the risk that the expected benefits or synergies of the acquisition will not be
realized, (iii) the risk that legal proceedings may be instituted related to the merger agreement, and (iv) unanticipated difficulties or expenditures relating to the proposed transaction, the response of business partners and competitors to the
consummation of the transaction and/or potential difficulties in employee retention as a result of the consummation of the proposed transaction. Forward-looking statements in this communication should be evaluated together with the many
uncertainties that affect Bristol Myers Squibb’s business, particularly those identified in the cautionary factors discussion in Bristol Myers Squibb’s Annual Report on Form 10-K for the year ended December 31, 2021, and its subsequent Quarterly
Reports on Form 10-Q and Current Reports on Form 8-K and in Turning Point’s Annual Report on Form 10-K for the year ended December 31, 2021 and its subsequent Quarterly Reports on Form 10-Q , as well as other documents that may be filed by Bristol
Myers Squibb or Turning Point from time to time with the SEC. Neither Bristol Myers Squibb nor Turning Point undertakes any obligation to publicly update any forward-looking statement, whether as a result of new information, future events or
otherwise. The forward-looking statements made in this communication relate only to events as of the date on which the statements are made.
Contacts
Bristol Myers Squibb
Media: media@bms.com
Investor Relations: investor.relations@bms.com
Turning Point Therapeutics
Media and Investor Relations: ir@tptherapeutics.com