UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Amendment No. 2)
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. 2 (the “Amendment No. 2”) 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, 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. 2. Except as specifically provided herein, the information contained in the Schedule TO remains unchanged and this Amendment No. 2 does not modify any of the information previously reported on the Schedule TO. You should read this Amendment No. 2 together with the Schedule TO, the Offer to Purchase dated February 5, 2018 (the “Offer to Purchase”) and the related Letter of Transmittal.
ITEM 2. SUBJECT COMPANY INFORMATION
Item 2 is hereby amended and supplemented as follows:
| • | The table contained under the heading “Incorporation by Reference” in Section 10 (“Certain Information Concerning Us”) of the Offer to Purchase is hereby amended and restated to read in its entirety as follows: |
| SEC Filings |
Date Filed | |
| Annual Report on Form 10-K for the fiscal year ended December 31, 2017 | February 13, 2018 | |
| Quarterly Reports on Form 10-Q |
April 27, 2017, July 26, 2017 and October 26, 2017 | |
| Current Reports on Form 8-K |
January 9, 2017, February 3, 2017, April 24, 2017, May 11, 2017, May 22, 2017, October 24, 2017, October 31, 2017 and November 2, 2017. | |
| Definitive Proxy Statement for our 2017 annual meeting of shareholders | April 6, 2017 | |
| • | The first sentence of the fifth paragraph in the section of the Offer to Purchase captioned “Introduction” is hereby amended and restated to read in its entirety as follows: |
On December 12, 2017, the Board of Directors declared a quarterly cash dividend of $1.32 per Share, to be paid on March 8, 2018 to each stockholder of record as of the close of business on February 15, 2018.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON
The information set forth in the first bullet point under Item 2 above is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION
The information set forth in the second bullet point under Item 2 above is incorporated herein by reference.
ITEM 10. FINANCIAL STATEMENTS
Item 10 is hereby amended and supplemented as follows:
| • | The first sentence of the paragraph under the heading “Historical Financial Information” in Section 11 (“Certain Financial Information”) of the Offer to Purchase is hereby amended and restated to read in its entirety as follows: |
We incorporate by reference the financial statements and notes thereto included in Part II, Item 8 of our Annual Report on Form 10-K for the fiscal year ended December 31, 2017.
| • | The paragraph under the heading “Summary Historical Consolidated Financial Data” in Section 11 (“Certain Financial Information”) of the Offer to Purchase is hereby amended to delete the fifth sentence. |
ITEM 12. EXHIBITS
| (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.* | |
| (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. | |
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: February 13, 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.* | |
| (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. | |