This Amendment No. 1 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on December 16, 2019 (together with any subsequent amendments and supplements thereto, the “Schedule TO”), by Asilomar Acquisition Corp., a Delaware corporation (“Purchaser”) and an indirect, wholly-owned subsidiary of Astellas Pharma Inc., a company organized under the laws of Japan (“Astellas”), and Astellas. The Schedule TO relates to the offer by Purchaser to purchase all of the outstanding shares of common stock, par value, $0.00001 per share (the “Shares”), of Audentes Therapeutics, Inc., a Delaware corporation (“Audentes”), at a purchase price of $60.00 per Share (the “Offer Price”), net to the seller in cash, without interest, and less any applicable withholding taxes, on the terms and subject to the conditions set forth in 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.
Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule TO.
Item 11. Additional Information.
The disclosure in the Offer to Purchase and Item 11 of the Schedule TO is hereby amended and supplemented as set forth below.
The second paragraph of the subsection titled “Antitrust Compliance” in Section 16—“Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase is hereby amended and restated in its entirety to read as follows:
“On December 23, 2019, the parties received early termination of the waiting period applicable to the Offer under the HSR Act. Accordingly, the Offer Condition relating to the expiration or termination of the waiting period under the HSR Act has been satisfied.”
The followingsub-heading and paragraphs are added at the end of Section 16 – “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase:
“Certain Litigation
On December 18, 2019, John Thompson, a purported stockholder of Audentes, filed a putative securities class action complaint in the United States District Court for the District of Delaware against Audentes, the individual members of the Audentes Board, Astellas and Purchaser, captioned Thompson v. Audentes Therapeutics, Inc., et. al., Case No.1:19-cv-02294-UNA (the “Thompson Complaint”). The Thompson Complaint asserts that the defendants named therein violated sections 14(e), 14(d), and 20(a) of the Exchange Act by omitting material information regarding the analyses performed by Centerview as Audentes’ financial advisor from the Schedule14D-9 and that the individual members of the Audentes Board, Astellas and Purchaser acted as controlling persons of Audentes. The Thompson Complaint seeks, among other things, an order enjoining the defendants from consummating the transactions contemplated by the Merger Agreement and revisions to the Schedule14D-9.
On December 20, 2019, Elaine Wang, a purported stockholder of Audentes, filed a complaint in the United States District Court for the Northern District of California against Audentes and the individual members of the Audentes Board, captioned Wang v. Audentes Therapeutics, Inc., et. al, Case No.3:19-cv-08324 (the “Wang Complaint”). The Wang Complaint asserts that the defendants named therein violated sections 14(e), 14(d), and 20(a) of the Exchange Act by omitting material information regarding the analyses performed by Centerview as Audentes’ financial advisor from the Schedule14D-9. The Wang Complaint seeks, among other things, an order enjoining the defendants from consummating the transactions contemplated by the Merger Agreement unless and until the Schedule14D-9 is revised to disclose additional information.
On December 20, 2019, Stephen Bushansky, a purported stockholder of Audentes, filed a complaint in the United States District Court for the Northern District of California against Audentes and the individual members of the Audentes Board, captioned Bushanksy v. Audentes Therapeutics, Inc., et. al, Case No.3:19-cv-08348 (the “Bushansky Complaint”). The Bushansky Complaint asserts that the defendants named therein violated sections 14(e) and 20(a) of the Exchange Act by omitting material information from the Schedule14D-9 regarding Audentes’ financial projections, the analyses performed by Centerview as Audentes’ financial advisor, Audentes’ insiders potential conflicts of interest and the background of the transactions. The Bushansky Complaint seeks, among other things, an order enjoining the defendants from consummating the transactions contemplated by the Merger Agreement.
Additional lawsuits may be filed against Audentes, Audentes’ Board, Astellas, and Purchaser in connection with the Merger Agreement, the Schedule TO and the Schedule14D-9.”
