UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Amendment No. 6)
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AMGEN INC.
(Name Of Subject Company (Issuer) And Filing Person (Offeror))
Common Shares, par value $0.0001 per share
(Title of Class of Securities)
031162100
(CUSIP Number of Common Stock)
Jonathan P. Graham, 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:
Catherine M. Clarkin, Esq.
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
(212) 558-4000
CALCULATION OF FILING FEE
| Transaction Valuation* | Amount Of Filing Fee** | |
| $10,000,000,000.00 | $1,245,000 | |
|
| ||
| * | The transaction value is estimated only for purposes of calculating the filing fee. This amount is based on the offer to purchase up to $10 billion in value of shares of the common stock, $0.0001 par value per share. |
| ** | The amount of the filing fee, calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, equals $124.50 per million dollars of the value of the transaction. |
| ☒ | 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. |
| Amount Previously Paid: |
$ | 1,245,000 | Filing Party: | Amgen Inc. | ||||
| Form or Registration No.: |
Schedule TO | Date Filed: | February 5, 2018 |
| ☐ | 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:
| ☐ | third-party tender offer subject to Rule 14d-1. |
| ☒ | issuer tender offer subject to Rule 13e-4. |
| ☐ | going-private transaction subject to Rule 13e-3. |
| ☐ | 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: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| ☐ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ☐ | Rule 14d-1(d) (Cross-Border Third Party Tender Offer) |
SCHEDULE TO
This Amendment No. 6 (the “Amendment No. 6”) amends and supplements the Tender Offer Statement on Schedule TO (the “Schedule TO”) originally filed with the United States Securities and Exchange Commission (the “SEC”) by Amgen Inc., a Delaware corporation (“Amgen” or the “Company”), on February 5, 2018, as amended and supplemented on February 5, 2018, February 14, 2018, February 20, 2018, February 23, 2018 and February 26, 2018, in connection with the Company’s offer to purchase up to $10 billion in value of shares of its common stock, $0.0001 par value per share (the “Shares”), at a price not greater than $200 nor less than $175 per Share, to the seller in cash, less any applicable withholding taxes and without interest.
Only those items amended or supplemented are reported in this Amendment No. 6. Except as specifically provided herein, the information contained in the Schedule TO remains unchanged and this Amendment No. 6 does not modify any of the information previously reported on the Schedule TO. You should read this Amendment No. 6 together with the Schedule TO, the Offer to Purchase dated February 5, 2018 (the “Offer to Purchase”) and the related Letter of Transmittal.
| ITEM 11. | ADDITIONAL INFORMATION |
Item 11 is hereby amended and supplemented as follows:
On March 6, 2018, Amgen issued a press release announcing the preliminary results of the tender offer, which expired at 12:00 Midnight, New York City time, at the end of Monday, March 05, 2018. A copy of such press release is filed as Exhibit (a)(5)(v) to this Schedule TO and is incorporated herein by reference.
| ITEM 12. | EXHIBITS |
Item 12 is hereby amended and restated as follows:
| (a)(1)(i) |
Offer to Purchase, dated February 5, 2018.* | |
| (a)(1)(ii) |
Form of Letter of Transmittal (including IRS Form W-9 ).* | |
| (a)(1)(iii) |
Notice of Guaranteed Delivery.* | |
| (a)(1)(iv) |
Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(v) |
Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(vi) |
Internal Communications Materials, dated February 5, 2018.* | |
| (a)(1)(vii) |
Letter of Transmittal for Tender of Shares of Common Stock of Amgen Inc. for Participants in the Amended and Restated Employee Stock Purchase Plan.* | |
| (a)(2) |
Not applicable. | |
| (a)(3) |
Not applicable. | |
| (a)(4) |
Not applicable. | |
| (a)(5)(i) |
Excerpted Transcript of Amgen Inc.’s Earnings Conference Call on February 1, 2018.* | |
| (a)(5)(ii) |
Summary Advertisement, dated February 5, 2018.* | |
| (a)(5)(iii) |
Notice to Directors and Executive Officers of Amgen Inc. regarding the Potential Complete Blackout in Transactions Involving Shares of Amgen Common Stock, dated February 5, 2018. (Filed as an exhibit to Form 8-K on February 5, 2018 and incorporated herein by reference.) | |
| (a)(5)(iv) |
Notice to Directors and Executive Officers of Amgen Inc. regarding Trading Restrictions, dated February 5, 2018.* | |
| (a)(5)(v) |
Press Release, dated March 6, 2018.** | |
| (b) |
Not applicable. | |
| (d)(1) |
Amgen Inc. Amended and Restated 2009 Equity Incentive Plan. (Filed as Appendix C to the Definitive Proxy Statement on Schedule 14A on April 8, 2013 and incorporated herein by reference.) | |
| (d)(2) |
First Amendment to Amgen Inc. Amended and Restated 2009 Equity Incentive Plan, effective March 4, 2015. (Filed as an exhibit to Form 10-Q for the quarter ended March 31, 2015 on April 27, 2015 and incorporated herein by reference.) | |
| (d)(3) |
Second Amendment to Amgen Inc. Amended and Restated 2009 Equity Incentive Plan, effective March 2, 2016. (Filed as an exhibit to Form 10-Q for the quarter ended March 31, 2016 on May 2, 2016 and incorporated herein by reference.) | |
| (d)(4) |
Form of Stock Option Agreement for the Amgen Inc. Amended and Restated 2009 Equity Incentive Plan. (As Amended on December 20, 2016.) (Filed as an exhibit to Form 10-K for the year ended December 31, 2016 on February 14, 2017 and incorporated herein by reference.) | |
| (d)(5) |
Form of Restricted Stock Unit Agreement for the Amgen Inc. Amended and Restated 2009 Equity Incentive Plan. (As Amended on December 20, 2016.) (Filed as an exhibit to Form 10-K for the year ended December 31, 2016 on February 14, 2017 and incorporated herein by reference.) | |
| (d)(6) |
Amgen Inc. 2009 Performance Award Program. (As Amended on March 2, 2016.) (Filed as an exhibit to Form 10-Q for the quarter ended March 31, 2016 on May 2, 2016 and incorporated herein by reference.) | |
| (d)(7) |
Form of Performance Unit Agreement for the Amgen Inc. 2009 Performance Award Program. (As Amended on December 20, 2016.) (Filed as an exhibit to Form 10-K for the year ended December 31, 2016 on February 14, 2017 and incorporated herein by reference.) | |
| (d)(8) |
Amgen Inc. 2009 Director Equity Incentive Program. (As Amended and Restated on October 24, 2017.) (Filed as an exhibit to Form 10-K for the year ended December 31, 2017 on February 13, 2018 and incorporated herein by reference.) | |
| (d)(9) |
Form of Grant of Non-Qualified Stock Option Agreement for the Amgen Inc. 2009 Director Equity Incentive Program. (Filed as an exhibit to Form 8-K on May 8, 2009 and incorporated herein by reference.) | |
| (d)(10) |
Form of Restricted Stock Unit Agreement for the Amgen Inc. 2009 Director Equity Incentive Program. (As Amended on March 6, 2013.) (Filed as an exhibit to Form 10-Q for the quarter ended March 31, 2013 on May 3, 2013 and incorporated herein by reference.) | |
| (d)(11) |
Agreement between Amgen Inc. and David W. Meline, effective July 21, 2014. (Filed as an exhibit to Form 10-Q for the quarter ended September 30, 2014 on October 29, 2014 and incorporated herein by reference.) | |
| (d)(12) |
Agreement between Amgen Inc. and Jonathan Graham, dated May 11, 2015. (Filed as an exhibit to Form 10-Q/A for the quarter ended June 30, 2015 on August 6, 2015 and incorporated herein by reference.) | |
| (d)(13) |
Agreement between Amgen Inc. and Lori Johnston, dated October 25, 2016. (Filed as an exhibit to Form 10-K for the year ended December 31, 2016 on February 14, 2017 and incorporated herein by reference.) | |
| (g) |
Not applicable. | |
| (h) |
Not applicable. | |
| * |
Previously filed. | |
| ** |
Filed herewith. | |
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule TO is true, complete and correct.
| AMGEN INC. | ||||||
| Dated: March 6, 2018 | By: | /s/ Mary A. Lehmann | ||||
| Name: | Mary A. Lehmann | |||||
| Title: | Vice President, Finance and Treasurer | |||||
EXHIBIT INDEX
| (a)(1)(i) |
Offer to Purchase, dated February 5, 2018.* | |
| (a)(1)(ii) |
Form of Letter of Transmittal (including IRS Form W-9 ).* | |
| (a)(1)(iii) |
Notice of Guaranteed Delivery.* | |
| (a)(1)(iv) |
Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(v) |
Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(vi) |
Internal Communications Materials, dated February 5, 2018.* | |
| (a)(1)(vii) |
Letter of Transmittal for Tender of Shares of Common Stock of Amgen Inc. for Participants in the Amended and Restated Employee Stock Purchase Plan.* | |
| (a)(2) |
Not applicable. | |
| (a)(3) |
Not applicable. | |
| (a)(4) |
Not applicable. | |
| (a)(5)(i) |
Excerpted Transcript of Amgen Inc.’s Earnings Conference Call on February 1, 2018.* | |
| (a)(5)(ii) |
Summary Advertisement, dated February 5, 2018.* | |
| (a)(5)(iii) |
Notice to Directors and Executive Officers of Amgen Inc. regarding the Potential Complete Blackout in Transactions Involving Shares of Amgen Common Stock, dated February 5, 2018. (Filed as an exhibit to Form 8-K on February 5, 2018 and incorporated herein by reference.) | |
| (a)(5)(iv) |
Notice to Directors and Executive Officers of Amgen Inc. regarding Trading Restrictions, dated February 5, 2018.* | |
| (a)(5)(v) |
Press Release, dated March 6, 2018.** | |
| (b) |
Not applicable. | |
| (d)(1) |
Amgen Inc. Amended and Restated 2009 Equity Incentive Plan. (Filed as Appendix C to the Definitive Proxy Statement on Schedule 14A on April 8, 2013 and incorporated herein by reference.) | |
| (d)(2) |
First Amendment to Amgen Inc. Amended and Restated 2009 Equity Incentive Plan, effective March 4, 2015. (Filed as an exhibit to Form 10-Q for the quarter ended March 31, 2015 on April 27, 2015 and incorporated herein by reference.) | |
| (d)(3) |
Second Amendment to Amgen Inc. Amended and Restated 2009 Equity Incentive Plan, effective March 2, 2016. (Filed as an exhibit to Form 10-Q for the quarter ended March 31, 2016 on May 2, 2016 and incorporated herein by reference.) | |
| (d)(4) |
Form of Stock Option Agreement for the Amgen Inc. Amended and Restated 2009 Equity Incentive Plan. (As Amended on December 20, 2016.) (Filed as an exhibit to Form 10-K for the year ended December 31, 2016 on February 14, 2017 and incorporated herein by reference.) | |
| (d)(5) |
Form of Restricted Stock Unit Agreement for the Amgen Inc. Amended and Restated 2009 Equity Incentive Plan. (As Amended on December 20, 2016.) (Filed as an exhibit to Form 10-K for the year ended December 31, 2016 on February 14, 2017 and incorporated herein by reference.) | |
| (d)(6) |
Amgen Inc. 2009 Performance Award Program. (As Amended on March 2, 2016.) (Filed as an exhibit to Form 10-Q for the quarter ended March 31, 2016 on May 2, 2016 and incorporated herein by reference.) | |
| (d)(7) |
Form of Performance Unit Agreement for the Amgen Inc. 2009 Performance Award Program. (As Amended on December 20, 2016.) (Filed as an exhibit to Form 10-K for the year ended December 31, 2016 on February 14, 2017 and incorporated herein by reference.) | |
| (d)(8) |
Amgen Inc. 2009 Director Equity Incentive Program. (As Amended and Restated on October 24, 2017.) (Filed as an exhibit to Form 10-K for the year ended December 31, 2017 on February 13, 2018 and incorporated herein by reference.) | |
| (d)(9) |
Form of Grant of Non-Qualified Stock Option Agreement for the Amgen Inc. 2009 Director Equity Incentive Program. (Filed as an exhibit to Form 8-K on May 8, 2009 and incorporated herein by reference.) | |
| (d)(10) |
Form of Restricted Stock Unit Agreement for the Amgen Inc. 2009 Director Equity Incentive Program. (As Amended on March 6, 2013.) (Filed as an exhibit to Form 10-Q for the quarter ended March 31, 2013 on May 3, 2013 and incorporated herein by reference.) | |
| (d)(11) |
Agreement between Amgen Inc. and David W. Meline, effective July 21, 2014. (Filed as an exhibit to Form 10-Q for the quarter ended September 30, 2014 on October 29, 2014 and incorporated herein by reference.) | |
| (d)(12) |
Agreement between Amgen Inc. and Jonathan Graham, dated May 11, 2015. (Filed as an exhibit to Form 10-Q/A for the quarter ended June 30, 2015 on August 6, 2015 and incorporated herein by reference.) | |
| (d)(13) |
Agreement between Amgen Inc. and Lori Johnston, dated October 25, 2016. (Filed as an exhibit to Form 10-K for the year ended December 31, 2016 on February 14, 2017 and incorporated herein by reference.) | |
| (g) |
Not applicable. | |
| (h) |
Not applicable. | |
| * |
Previously filed. | |
| ** |
Filed herewith. | |
Exhibit (a)(5)(v)
|
|
One Amgen Center Drive Thousand Oaks, CA 91320-1799 Telephone (805) 447-1000 Fax (805) 499-3507 www.Amgen.com |
News Release
AMGEN ANNOUNCES PRELIMINARY RESULTS OF TENDER OFFER
THOUSAND OAKS, Calif. (Mar. 6, 2018) – Amgen (NASDAQ: AMGN) today announced the preliminary results of its modified Dutch auction tender offer, which expired at 12:00 Midnight, New York City time, at the end of Mar. 5, 2018.
Based on the preliminary count by American Stock Transfer & Trust Company, LLC, the depositary for the tender offer, a total of 54,297,698 shares of Amgen’s common stock, $0.0001 par value per share, were properly tendered and not properly withdrawn at or below the purchase price of $192 per share, including 33,745,174 shares that were tendered by notice of guaranteed delivery. Amgen has been informed by the depositary that the preliminary proration factor for the tender offer is approximately 95.9 percent.
In accordance with the terms and conditions of the tender offer, and based on the preliminary count by the depositary, Amgen expects to acquire approximately 52.1 million shares of its common stock at a price of $192 per share, for an aggregate cost of approximately $10 billion, excluding fees and expenses relating to the tender offer. These shares represent approximately 7.2 percent of the shares outstanding.
The number of shares to be purchased and the purchase price are preliminary and subject to change. The preliminary information contained in this press release is subject to confirmation by the depositary and is based on the assumption that all shares tendered through notice of guaranteed delivery will be delivered within the two trading day settlement period. The final number of shares to be purchased and the final purchase price will be announced following the expiration of the guaranteed delivery period and completion by the depositary of the confirmation process. Payment for the shares accepted for purchase under the tender offer, and return of all other shares tendered and not purchased, will occur promptly thereafter.
BofA Merrill Lynch and Morgan Stanley acted as dealer managers for the tender offer. Stockholders who have questions or would like additional information about the tender offer may contact the information agent for the tender offer, D.F. King & Co., Inc. toll-free at (877) 864-5059.
About Amgen
Amgen is committed to unlocking the potential of biology for patients suffering from serious illnesses by discovering, developing, manufacturing and delivering innovative human therapeutics. This approach begins by using tools like advanced human genetics to unravel the complexities of disease and understand the fundamentals of human biology.
Amgen focuses on areas of high unmet medical need and leverages its expertise to strive for solutions that improve health outcomes and dramatically improve people’s lives. A biotechnology pioneer since 1980, Amgen has grown to be one of the world’s leading independent biotechnology companies, has reached millions of patients around the world and is developing a pipeline of medicines with breakaway potential.
Forward-Looking Statements
This news release contains forward-looking statements that are based on the current expectations and beliefs of Amgen. All statements, other than statements of historical fact, are statements that could be deemed forward-looking statements, including estimates of revenues, operating margins, capital expenditures, cash, other financial metrics, expected legal, arbitration, political, regulatory or clinical results or practices, customer and prescriber patterns or practices, reimbursement activities and outcomes and other such estimates and results. Forward-looking statements involve significant risks and uncertainties, including those discussed below and more fully described in the Securities and Exchange Commission reports filed by Amgen, including our most recent annual report on Form 10-K and any subsequent periodic reports on Form 10-Q and Form 8-K. Unless otherwise noted, Amgen is providing this information as of the date of this news release and does not undertake any obligation to update any forward-looking statements contained in this document as a result of new information, future events or otherwise.
No forward-looking statement can be guaranteed and actual results may differ materially from those we project. Our results may be affected by our ability to successfully market both new and existing products domestically and internationally, clinical and regulatory developments involving current and future products, sales growth of recently launched products, competition from other products including biosimilars, difficulties or delays in manufacturing our products and global economic conditions. In addition, sales of our products are affected by pricing pressure, political and public scrutiny and reimbursement policies imposed by third-party payers, including governments, private insurance plans and managed care providers and may be affected by regulatory, clinical and guideline developments and domestic and international trends toward managed care and healthcare cost containment. Furthermore, our research, testing, pricing, marketing and other operations are subject to extensive regulation by domestic and foreign government regulatory authorities. We or others could identify safety, side effects or manufacturing problems with our products, including our devices, after they are on the market. Our business may be impacted by government investigations, litigation and product liability claims. In addition, our business may be impacted by the adoption of new tax legislation or exposure to additional tax liabilities. If we fail to meet the compliance obligations in the corporate integrity agreement between us and the U.S. government, we could become subject to significant sanctions. Further, while we routinely obtain patents for our products and technology, the protection offered by our patents and patent applications may be challenged, invalidated or circumvented by our competitors, or we may fail to prevail in present and future intellectual property litigation. We perform a substantial amount of our commercial manufacturing activities at a few key facilities, including in Puerto Rico, and also depend on third parties for a portion of our manufacturing activities, and limits on supply may constrain sales of certain of our current products and product candidate development. In addition, we compete with other companies with respect to many of our marketed products as well as for the discovery and development of new products. Discovery or identification of new product candidates cannot be guaranteed and movement from concept to product is uncertain; consequently, there can be no guarantee that any particular product candidate will be successful and become a commercial product. Further, some raw materials, medical devices and component parts for our products are supplied by sole third-party suppliers. Certain of our distributors, customers and payers have substantial purchasing leverage in their dealings with us. The discovery of significant problems with a product similar to one of our products that implicate an entire class of products could have a material adverse effect on sales of the affected products and on our business and results of operations. Our efforts to acquire other companies or products and to integrate the operations of companies we have acquired may not be successful. A breakdown, cyberattack or information security breach could compromise the confidentiality, integrity and availability of our systems and our data. Our stock price is volatile and may be affected by a number of events. Our business performance could affect or limit the ability of our Board of Directors to declare a dividend or our ability to pay a dividend or repurchase our common stock. We may not be able to access the capital and credit markets on terms that are favorable to us, or at all.
CONTACT:
Amgen, Thousand Oaks
Trish Hawkins, 805-447-5631 (Media)
Arvind Sood, 805-447-1060 (Investors)