SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE TO
Amendment
No. 3
Tender
Offer Statement under Section 14(d)(1) or 13(e)(1)
of
the Securities Exchange Act of 1934
COUGAR
BIOTECHNOLOGY, INC.
(Name of
Subject Company (Issuer))
KITE
MERGER SUB, INC.
(Offeror)
A
Wholly-Owned Subsidiary of
JOHNSON &
JOHNSON
(Offeror)
(Names of
Filing Persons (identifying status as offeror, issuer or other
person))
COMMON
STOCK, $0.0001 PAR VALUE
(Title of
Class of Securities)
222083107
(CUSIP
Number of Class of Securities)
Clifford
Birge, Esq.
Johnson &
Johnson
One
Johnson & Johnson Plaza
New
Brunswick, NJ 08933
(732) 524-6400
(Name,
address, and telephone numbers of person authorized to receive notices and
communications on behalf of filing persons)
Copies
to:
Robert
I. Townsend, III, Esq.
Damien
R. Zoubek, Esq.
Cravath,
Swaine & Moore LLP
Worldwide
Plaza
825
Eighth Avenue
New
York, NY 10019-7475
(212) 474-1000
CALCULATION
OF FILING FEE
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Transaction
Valuation(1)
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Amount
of Filing Fee(2)
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$1,054,319,709.00
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$58,831.04
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(1)
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Estimated
for purposes of calculating the filing fee only. This amount is determined
by multiplying 24,519,063 shares of Cougar Biotechnology, Inc. common
stock (outstanding as of June 2, 2009 and shares of common stock
issuable before the expiration of the offer upon the exercise of
in-the-money options and warrants) by $43.00 per share, which is the offer
price.
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(2)
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The
filing fee was calculated in accordance with Rule 0-11 under the
Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #5 for
fiscal year 2009, issued March 11, 2009, by multiplying the
transaction value by 0.0000558.
|
x
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.
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Amount
Previously Paid: $58,831.04
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Filing
Party: Johnson & Johnson and Kite Merger Sub, Inc.
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Form
of Registration No.: Schedule TO
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Date
Filed: June 5, 2009
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o
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:
x
Third-party
tender offer subject to Rule 14d-1.
o
Issuer
tender offer subject to Rule 13e-4.
o
Going-private
transaction subject to Rule 13e-3.
x
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.
o
This Amendment No. 3 to the Tender
Offer Statement on Schedule TO (this “Amendment”) is filed by (i) Kite Merger
Sub, Inc., a Delaware corporation (the “Purchaser”) and wholly-owned subsidiary
of Johnson & Johnson, a New Jersey corporation (“Parent”), and (ii) Parent.
This Amendment amends and supplements the Tender Offer Statement on Schedule TO
filed with the Securities and Exchange Commission on June 5, 2009, (together
with any amendments and supplements thereto, the “Schedule TO”), and relates to
the offer (the “Offer”) by the Purchaser to purchase all of the outstanding
shares of common stock, par value $0.0001 per share (the “Shares”), of Cougar
Biotechnology, Inc., a Delaware corporation, at a purchase price of $43.00 per
Share net to the seller in cash, without interest and less any required
withholding taxes, upon the terms and subject to the conditions set forth in the
Offer to Purchase dated June 5, 2009 (together with any amendments and
supplements thereto, the “Offer to Purchase”), and in the related Letter of
Transmittal.
Capitalized terms used and not defined
herein shall have the meanings assigned to such terms in the Offer to
Purchase.
Item
11. Additional Information.
Items 1 through 9 and 11 of the
Schedule TO are hereby amended and supplemented to include the
following:
“The initial offering period of the
Offer expired at 12:00 midnight, New York City time, on July 2,
2009. The Depositary has advised Parent that, as of the expiration of
the initial offering period, a total of approximately 17,742,030 Shares were
validly tendered and not withdrawn, representing approximately 84.4% of the
Shares outstanding. All Shares that were validly tendered and not
withdrawn during the initial offering period have been accepted for
payment.
The Depositary has also advised Parent
that it has received commitments to tender approximately 2,001,065 additional
Shares under the guaranteed delivery procedures described in the
Offer.
Parent has commenced, through the
Purchaser, a subsequent offering period of the Offer for all remaining
untendered Shares pursuant to Rule 14d-11 of the Securities Exchange Act of
1934, as amended. The subsequent offering period will expire at 5:00
p.m. (New York City time) on July 9, 2009, unless extended. Any
Shares properly tendered during the subsequent offering period will be
immediately accepted for payment, and tendering stockholders will be paid $43.00
per Share, less any required withholding taxes, in cash and without interest,
which is the same amount per Share that was paid in the initial offering
period. Shares tendered during the subsequent offering period may not
be withdrawn. In addition, no Shares validly tendered during the
initial offering period may be withdrawn during the subsequent offering
period.
The full text of the press release
issued by Parent on July 3, 2009 announcing the results of the initial offering
period of the Offer and the commencement of the subsequent offering period is
filed as Exhibit (a)(5)(E) hereto and is incorporated herein by
reference.”
Item
12. Exhibits.
Item 12 of the Schedule TO is hereby
amended and supplemented by adding the following exhibit:
“(a)(5)(E) Press Release issued by
Johnson & Johnson on July 3, 2009.”
SIGNATURE
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.
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KITE MERGER SUB,
INC.
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By:
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/s/ Clifford
A. Birge
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Name:
Clifford A. Birge
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Title:
Secretary
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Date:
July 6, 2009
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JOHNSON &
JOHNSON
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By:
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/s/ Douglas
Chia
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Name:
Douglas Chia
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Title:
Assistant Secretary
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Date:
July 6, 2009
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Cougar Biotechnology (MM) (NASDAQ:CGRB)
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Cougar Biotechnology (MM) (NASDAQ:CGRB)
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