This Amendment No. 1 amends and supplements the Tender Offer Statement on Schedule TO (together with
any amendments and supplements hereto, this Schedule TO) filed with the Securities and Exchange Commission on May 23, 2018 by Bluegill Acquisition Corporation, a Delaware corporation (Purchaser) and wholly-owned
subsidiary of Eli Lilly and Company, an Indiana corporation (Lilly). The Schedule TO relates to the offer by Purchaser to purchase all of the outstanding shares of common stock, par value, $0.0001 per share (the Shares), of
ARMO BioSciences, Inc., a Delaware corporation (ARMO), at a purchase price of $50.00 per Share, net to the seller in cash, without interest and less any applicable tax withholding, on the terms and subject to the conditions set forth in
the Offer to Purchase (the Offer to Purchase) and in the related Letter of Transmittal, copies of which are attached to the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
Items 1 through 9 and Item 11.
The disclosure in
the Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO is hereby amended and supplemented by adding the following sentence at the end of the first paragraph in
Section
16 Certain Legal Matters;
Regulatory Approvals
of the Offer to Purchase under the subheading
Antitrust Compliance
and under the further subheading
United States
:
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.
The disclosure in the Offer to Purchase and Item 11 of the Schedule TO is hereby amended and supplemented by adding the following
sub-heading
and paragraph at the end of
Section
16 Certain Legal Matters; Regulatory Approvals
of the Offer to Purchase:
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,
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