SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
14D-9
(Rule
14d-101)
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
(Amendment No. 1)
ARMO
BioSciences, Inc.
(Name of Subject Company)
ARMO
BioSciences, Inc.
(Name of Persons Filing Statement)
Common Stock, par value $0.0001 per share
(Title of Class of Securities)
04225U104
(CUSIP Number
of Class of Securities)
Peter Van Vlasselaer, Ph.D.
Chief Executive Officer
ARMO BioSciences, Inc.
575 Chesapeake Drive
Redwood City, CA 94063
(650)
779-5075
(Name, address, and telephone numbers of person authorized to receive notices and communications
on behalf of the persons filing statement)
Copies to:
Marcia A. Hatch, Esq.
Andrew Y. Luh, Esq.
Heidi E. Mayon, Esq.
Albert W. Vanderlaan, Esq.
Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
1200 Seaport Blvd.
Redwood City, CA 94063
(650)
321-2400
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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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This Amendment No. 1 to
Schedule 14D-9
amends and supplements
the Solicitation/Recommendation Statement on
Schedule 14D-9
previously filed by ARMO BioSciences, Inc., a Delaware corporation (
ARMO
), with the Securities and Exchange Commission on
May 23, 2018 (the
Schedule 14D-9
), relating to the offer by Bluegill Acquisition Corporation, a Delaware corporation (
Purchaser
) and wholly-owned subsidiary of
Eli Lilly and Company, an Indiana corporation (
Parent
), to purchase all of the outstanding shares of ARMOs common stock, par value $0.0001 per share (the
Shares
), at a purchase price of $50.00 per Share,
net to the seller in cash, without interest thereon and less any applicable tax withholding, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 23, 2018, and the related Letter of Transmittal, each of
which may be amended or supplemented from time to time.
ITEM 8.
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ADDITIONAL INFORMATION
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Item 8 of the
Schedule 14D-9
is hereby amended and supplemented by deleting in its entirety the subsection entitled
Legal Proceedings
and inserting as a new subsection entitled
Certain Litigation
and the disclosure set forth below
immediately prior to the subsection entitled
Regulatory Approvals
:
Certain Litigation
On May 24, 2018, a putative class action lawsuit (captioned
Copp v. ARMO BioSciences, Inc. et al.
, Case
No. 18-cv-03109)
(the
Copp Action
) was filed in the United States District Court for the Northern District of California against ARMO and individual members of the ARMO Board, alleging
violations of Sections 14(d)(4) and 14(e) of the Exchange Act,
Rule 14d-9
promulgated under Section 14(d) of the Exchange Act, and Section 20(a) of the Exchange Act in connection with the
Schedule 14D-9.
The complaint filed in the Copp Action alleges that the Schedule
14D-9
omits material information, rendering the information disclosed false and
misleading. The Copp Action seeks, among other things, orders (i) enjoining the defendants from proceeding with, consummating, or closing the Offer and the Merger (or, in the alternative, awarding damages in the event the Merger is completed),
(ii) directing the individual members of the Board to file an amended
Schedule 14D-9,
and (iii) awarding plaintiffs costs and attorneys and expert fees. On May 25, 2018, the
plaintiff filed a motion for preliminary injunction, for which the court set a hearing for June 14, 2018.
On May 29, 2018, a lawsuit (captioned
Naugle v. ARMO BioSciences, Inc. et al.
, Case
No. 18-cv-03176)
(the
Naugle Action
) was filed in the United States District Court for the
Northern District of California against ARMO and individual members of the ARMO Board, alleging violations of Sections 14(d)(4) and 14(e) of the Exchange Act,
Rule 14d-9
promulgated under
Section 14(d) of the Exchange Act, and Section 20(a) of the Exchange Act in connection with the
Schedule 14D-9.
The complaint filed in the Naugle Action alleges that the Schedule
14D-9
omits or misrepresents material information, rendering the information disclosed false and misleading. The Naugle Action seeks, among other things, orders (i) enjoining the defendants from proceeding
with, consummating, or closing the Offer and the Merger, (ii) rescinding the Offer and the Merger if they are consummated or, alternatively, awarding unspecified rescissory damages, and (iii) awarding plaintiffs costs and
attorneys and expert fees.
Also on May 29, 2018, a putative class action lawsuit (captioned
Franchi v. ARMO BioSciences, Inc. et al.
,
Case
No. 18-cv-00805)
(the
Franchi Action
and collectively with the Copp Action and the Naugle Action, the
Actions
) was filed
in the United States District Court for the District of Delaware against ARMO, individual members of the ARMO Board, Purchaser and Parent, alleging violations of Sections 14(d)(4) and 14(e) of the Exchange Act,
Rule 14d-9
promulgated under Section 14(d) of the Exchange Act, and Section 20(a) of the Exchange Act in connection with the
Schedule 14D-9.
The
complaint filed in the Franchi Action alleges that the Schedule
14D-9
omits material information, rendering the information disclosed false and misleading. The Franchi Action seeks, among other things, orders
(i) enjoining the defendants from proceeding with, consummating, or closing the Offer and the Merger, (ii) rescinding the Offer and the Merger if they are consummated or, alternatively, awarding unspecified rescissory damages,
(iii) directing the individual members of the ARMO Board to file an amended Schedule
14D-9,
(iv) declaring that the defendants violated Sections 14(e), 14(d) and 20(a) of the Exchange Act, as well as Rule
14a-9
promulgated under the Exchange Act, and (v) awarding plaintiffs costs and attorneys and expert fees.
ARMO and the members of the ARMO Board believe that the Actions are without merit, and intend to vigorously defend against all claims asserted. However, a
negative outcome in any lawsuit could have a material adverse effect on ARMO if it results in preliminary or permanent injunctive relief or rescission of the Offer or Merger. ARMO is not currently able to predict the outcome of the Actions with any
certainty. Additional lawsuits arising out of or relating to the Transactions may be filed in the future. If additional similar complaints are filed, absent new or different allegations that are material, ARMO will not necessarily disclose such
additional filings.
Item 8 of the Schedule
14D-9
is hereby amended by inserting the following sentence
after the third sentence of the first paragraph under the subheading
United States
under the heading
Regulatory Approvals
on page 42 of the Schedule
14D-9:
On May 29, 2018, the FTC granted early termination of the waiting period applicable to the Offer under the HSR Act, effective the
same day.
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in
Amendment No. 1 to
Schedule 14D-9
is true, complete and correct.
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Date: May 30, 2018
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ARMO BioSciences, Inc.
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By:
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/s/ Peter Van Vlasselaer
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Peter Van Vlasselaer
President and Chief
Executive Officer
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