Amended Statement of Ownership: Solicitation (sc 14d9/a)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 14D-9

(Amendment No. 1)

SOLICITATION/RECOMMENDATION STATEMENT

UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

Onyx Pharmaceuticals, Inc.

(Name of Subject Company)

 

 

Onyx Pharmaceuticals, Inc.

(Names of Persons Filing Statement)

 

 

COMMON STOCK, PAR VALUE $0.001 PER SHARE

(Title of Class of Securities)

 

 

683399109

(CUSIP Number of Class of Securities)

 

 

N. Anthony Coles, M.D.

President and Chief Executive Officer

Onyx Pharmaceuticals, Inc.

249 East Grand Avenue

South San Francisco, California 94080

[phone]

With copies to:

Stuart M. Cable

James A. Matarese

Goodwin Procter LLP

Exchange Place

Boston, MA 02109

[phone]

(Name, address, and telephone numbers of person authorized to receive notices and communications

on behalf of the persons filing statement)

 

 

 

¨

Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

 

 

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This Amendment No. 1 to Schedule 14D-9 (this “ Amendment ”) amends and supplements the Schedule 14D-9 filed with the Securities and Exchange Commission (the “ SEC ”) on September 3, 2013 (as amended or supplemented from time to time, the “ Schedule 14D-9 ”), by Onyx Pharmaceuticals, Inc., a Delaware corporation (“ Onyx ”). The Schedule 14D-9 relates to the tender offer by Arena Acquisition Company, a Delaware corporation (“ Purchaser ”), and a wholly-owned subsidiary of Amgen Inc., a Delaware corporation (“ Parent ” and together with Purchaser, the “ Offerors ”), to purchase all of the issued and outstanding shares of Onyx common stock, par value $0.001 per share (the “ Shares ”) at a purchase 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 (as amended or supplemented from time to time, the “ Offer to Purchase ”), and 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 ”). The Shares will be purchased by Purchaser. The Offer is described in a Tender Offer Statement on Schedule TO, as amended or supplemented from time to time , filed by the Offerors with the SEC on September 3, 2013. The Offer to Purchase and the Letter of Transmittal are filed as Exhibits (a)(1) and (a)(2) to the Schedule 14D-9, respectively.

Capitalized terms used, but not otherwise defined, in this Amendment shall have the meanings ascribed to them in the Schedule 14D-9. The information in the Schedule 14D-9 is incorporated into this Amendment by reference to all applicable items in the Schedule 14D-9, except that such information is hereby amended and supplemented to the extent specifically provided herein.

 

ITEM 8.

ADDITIONAL INFORMATION.

Item 8 (“ Additional Information ”) of the Schedule 14D-9 is hereby amended and supplemented as follows:

The third paragraph set forth under the heading “ Regulatory Approvals —Antitrust ” is hereby replaced in its entirety with the following:

On September 6, 2013, each of Onyx and Parent filed a Premerger Notification and Report Form with the FTC and the Antitrust Division for review in connection with the Offer. The initial waiting period applicable to the purchase of Shares pursuant to the Offer will expire at 11:59 PM on September 23, 2013, unless earlier terminated or there is a request for additional information or documentary material prior to that time.

The information set forth under the heading “ Certain Litigation ” is hereby replaced in its entirety with the following:

Between August 28, 2013 and September 4, 2013, six plaintiffs filed purported class action lawsuits against Onyx, its directors, Parent and Purchaser, and unnamed “John Doe” defendants in connection with the proposed Merger. Five of those purported class actions were brought in the Superior Court of the State of California for the County of San Mateo captioned  Silverstein et al. v. Onyx Pharmaceuticals, Inc., et al. (August 28, 2013), 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), Solak v. Onyx Pharmaceuticals, Inc., et al. (August 30, 2013), Louisiana Municipal Police Employees’ Retirement System et al. v Onyx Pharmaceuticals, Inc., et al. (September 3, 2013), and Jonopulos v. Onyx Pharmaceuticals, Inc., et al. (September 4, 2013). The sixth purported class action was 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). 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. 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 5, 2013, the plaintiff in the Solak case filed a request for dismissal of the case without prejudice.

 

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SIGNATURE

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 14D-9 is true, complete and correct.

 

		ONYX PHARMACEUTICALS, INC.
Dated: September 6, 2013		By:		/s/ N. Anthony Coles, M.D.
		Name:		N. Anthony Coles, M.D.
		Title:		Chairman and Chief Executive Officer

 

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