UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Amendment No. 2)
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
ABIOMED, INC.
(Name of Subject Company)
ATHOS MERGER SUB, INC.
(Offeror)
A Wholly Owned Subsidiary of
JOHNSON & JOHNSON
(Parent of Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
003654100
(CUSIP Number of Class of Securities)
Nicholas Antoun
Johnson & Johnson
One Johnson & Johnson Plaza
New Brunswick, NJ 08933
(732) 524-0400
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)
with copies to:
Robert I. Townsend, III
George Schoen
Sanjay Murti
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
| ☐ | 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) |
This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (as amended and together with any subsequent amendments and supplements thereto, the “Schedule TO”), filed with the U.S. Securities and Exchange Commission (“SEC”) on November 15, 2022, by Athos Merger Sub, Inc., a Delaware corporation (“Purchaser”) and a wholly owned subsidiary of Johnson & Johnson, a New Jersey corporation (“Johnson & Johnson”), and Johnson & Johnson. The Schedule TO relates to the tender offer by Purchaser for all of the outstanding shares of common stock, par value $0.01 per share (the “Shares”), of ABIOMED, Inc., a Delaware corporation (“ABIOMED”), at a price of $380.00 per Share, net to the seller in cash, without interest and less any required withholding taxes (the “Cash Amount”), plus one non-tradeable contractual contingent value right per Share (each, a “CVR”), which CVR represents the right to receive contingent payments of up to $35.00 per Share in cash, without interest and less any required withholding taxes, in the aggregate, upon the achievement of specified milestones (the Cash Amount plus one CVR, collectively, the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated as of November 15, 2022 (together with any amendments and supplements thereto, the “Offer to Purchase”), and in the related Letter of Transmittal (together with any amendments and supplements thereto, the “Letter of Transmittal”), copies of which are attached to the Schedule TO as exhibits (a)(1)(A) and (a)(1)(B), respectively.
Except to the extent specifically provided in this Amendment, the information set forth in the Schedule TO remains unchanged. This Amendment is being filed to extend the expiration time of the tender offer.
Items 1 through 9 and Item 11.
The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented by adding the following paragraphs thereto:
“On December 14, 2022, Purchaser announced an extension of the Expiration Time until 11:59 p.m., New York City time, on December 21, 2022, unless the Offer is further extended or earlier terminated as permitted by the Merger Agreement. The Offer was previously scheduled to expire at 11:59 p.m., New York City time, on December 13, 2022.
The Depositary has advised Purchaser that, as of 6 p.m., New York City time, on December 13, 2022, approximately 19,279,461 Shares have been validly tendered and not properly withdrawn pursuant to the Offer, representing approximately 42.75% of the outstanding Shares.
The press release announcing the extension of the Offer is attached hereto as Exhibit (a)(5)(G) and incorporated herein by reference.”
Amendments to the Offer to Purchase and Exhibits to the Schedule TO
All references to “11:59 p.m., New York City time, on December 13, 2022” set forth in the Offer to Purchase (Exhibit (a)(1)(A)), Form of Letter of Transmittal (Exhibit (a)(1)(B)), Form of Notice of Guaranteed Delivery (Exhibit (a)(1)(C)), Form of Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(D)), and Form of Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(E)) are hereby amended and replaced with “11:59 p.m., New York City time, on December 21, 2022.”
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
| Exhibit No. |
Description | |
| (a)(5)(G) | Press Release issued by Johnson & Johnson, dated December 14, 2022 | |
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| JOHNSON & JOHNSON | ||||
| By | /s/ Marc Larkins | |||
| Name: | Marc Larkins | |||
| Title: | Corporate Secretary | |||
| Date: | December 14, 2022 | |||
| ATHOS MERGER SUB, INC. | ||||
| By | /s/ Susan Morano | |||
| Name: | Susan Morano | |||
| Title: | President and Chief Executive Officer | |||
| Date: | December 14, 2022 | |||
Exhibit (a)(5)(G)
FOR IMMEDIATE RELEASE
Johnson & Johnson Announces Extension of Abiomed Tender Offer to December 21, 2022
NEW BRUNSWICK, N.J. – December 14, 2022 – Johnson & Johnson (NYSE: JNJ), the world’s largest, most diversified healthcare products company, today announced that Athos Merger Sub, Inc. (“Offeror”), a wholly owned subsidiary of Johnson & Johnson, has extended the expiration date of its offer (the “Offer”) to acquire all of the outstanding shares of common stock of Abiomed, Inc. (NASDAQ: ABMD), for an upfront payment of $380.00 per share in cash, plus one non-tradeable contingent value right entitling the holder to receive up to $35.00 per share in cash if certain commercial and clinical milestones are achieved.
The Offer, which was previously scheduled to expire at 11:59 p.m., New York City time, on December 13, 2022, has been extended until 11:59 p.m., New York City time, on December 21, 2022.
American Stock Transfer & Trust Company, LLC, the depositary for the Offer, has advised Offeror that as of 6 p.m., New York City time, on December 13, 2022, approximately 19,279,461 shares of Abiomed, representing approximately 42.75% of the outstanding shares of Abiomed’s common stock, have been validly tendered and not properly withdrawn pursuant to the Offer. Holders that have previously tendered their shares do not need to re-tender their shares or take any other action in response to this extension.
The Offer is being made pursuant to the terms and conditions described in the Offer to Purchase, dated November 15, 2022 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), the related letter of transmittal and certain other offer documents, copies of which are attached to the tender offer statement on Schedule TO filed by Johnson & Johnson and Offeror with the U.S. Securities and Exchange Commission (the “SEC”) on November 15, 2022, as amended.
The Offer is conditioned upon the fulfilment of certain conditions described in “The Tender Offer—Section 15—Conditions to the Offer” of the Offer to Purchase, including, but not limited to, the tender of a majority of the then-outstanding shares of Abiomed’s common stock and the receipt of applicable foreign regulatory approvals.
About Johnson & Johnson
At Johnson & Johnson, we believe good health is the foundation of vibrant lives, thriving communities and forward progress. That’s why for more than 135 years, we have aimed to keep people well at every age and every stage of life. Today, as the world’s largest and most broadly-based health care company, we are committed to using our reach and size for good. We strive to improve access and affordability, create healthier communities, and put a healthy mind, body and environment within reach of everyone, everywhere. We are blending our heart, science and ingenuity to profoundly change the trajectory of health for humanity.
Additional Information about the Offer and Where to Find It
On November 15, 2022, the Offeror filed with the SEC a tender offer statement on Schedule TO and Abiomed filed with the SEC a solicitation/recommendation statement on Schedule 14D-9 regarding the Offer. Investors and Abiomed security holders are strongly advised to read the tender offer statement (including the Offer to Purchase, the letter of transmittal and other related tender offer documents) and the related solicitation/recommendation statement on Schedule 14D-9 because they contain important information. 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, the letter of transmittal and certain other related tender offer documents may be obtained free of charge by directing a request to Johnson & Johnson, Office of the Corporate Secretary, One Johnson & Johnson Plaza, New Brunswick, NJ 08933, Attn: Corporate Secretary’s Office. A copy of the solicitation/recommendation statement on Schedule 14D-9 also may be obtained free of charge from Abiomed under the “Investors” section of Abiomed’s website at https://investors.abiomed.com.
Cautionary Statement Regarding Forward-Looking Statements
This press release contains forward-looking statements regarding the potential acquisition of Abiomed, Inc. The reader is cautioned not to rely on these forward-looking statements. These statements are based on current expectations of future events. If underlying assumptions prove inaccurate or known or unknown risks or uncertainties materialize, actual results could vary materially from the expectations and projections of Abiomed, Inc. or Johnson & Johnson. Risks and uncertainties include, but are not limited to: the risk that the closing conditions for the acquisition will not be satisfied, including the risk that clearance under applicable antitrust laws will not be obtained; uncertainty as to the percentage of Abiomed, Inc. stockholders that will support the proposed transaction and tender their outstanding shares of common stock of Abiomed, Inc. in the Offer; the possibility that the transaction will not be completed in the expected timeframe or at all; potential adverse effects to the businesses of Johnson & Johnson or Abiomed, Inc. during the pendency of the transaction, such as employee departures or distraction of management from business operations; the risk of stockholder litigation relating to the transaction, including resulting expense or delay; the potential that the expected benefits and opportunities of the acquisition, if completed, may not be realized or may take longer to realize than expected; challenges inherent in product research and development, including uncertainty of clinical success and obtaining regulatory approvals; uncertainty of commercial success for new products; manufacturing difficulties and delays; product efficacy or safety concerns resulting in product recalls or regulatory action; economic conditions, including currency exchange and interest rate fluctuations; the risks associated with global operations; competition, including technological advances, new products and patents attained by competitors; challenges to patents; changes to applicable laws and regulations, including tax laws and global health care reforms; adverse litigation or government action; changes in behavior and spending patterns or financial distress of purchasers of health care services and products; and trends toward health care cost containment. In addition, if and when the transaction is consummated, there will be risks and uncertainties related to the ability of the Johnson & Johnson family of companies to successfully integrate the products and employees/operations and clinical work of Abiomed, Inc., as well as the ability to ensure continued performance or market growth of Abiomed, Inc.’s products. A further list and descriptions of these risks, uncertainties and other factors can be found in Johnson & Johnson’s Annual Report on Form 10-K for the fiscal year ended January 2, 2022,
including in the sections captioned “Cautionary Note Regarding Forward-Looking Statements” and “Item 1A. Risk Factors,” and in Johnson & Johnson’s subsequent Quarterly Reports on Form 10-Q, and other filings by Johnson & Johnson with the SEC. Copies of these filings are available online at www.sec.gov, at www.jnj.com or on request from Johnson & Johnson. Johnson & Johnson does not undertake to update any forward-looking statement as a result of new information or future events or developments, except as required by law.
Johnson & Johnson:
Press Contacts
media-relations@its.jnj.com
Investor Contacts
RA-JJCUS-InvestorRel@ITS.JNJ.com