Astellas Pharma (ALPMF) SC TO-T/A Third party tender offer statement (amended)

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE TO

(Rule14d-100)

TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No. 2)

AUDENTES THERAPEUTICS, INC.

(Name of Subject Company (Issuer))

Asilomar Acquisition Corp.

an indirect, wholly-owned subsidiary of

Astellas Pharma Inc.

(Names of Filing Persons (Offerors))

Common Stock, par value $0.00001 per share

(Title of Class of Securities)

05070R104

(CUSIP Number of Class of Securities (Underlying Common Stock))

Kenji Yasukawa

President and Chief Executive Officer

Astellas Pharma Inc.

2-5-1, Nihonbashi-Honcho, Chuo-ku

Tokyo103-8411, Japan

+(81)-3-3244-3000

(Name, Address, and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Person)

Copies to:

Catherine J. Dargan, Esq.

Denny Kwon, Esq.

Covington & Burling LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001-4956

+1 (202) 662 6000

Calculation of Filing Fee

Transaction Valuation*	Amount of Filing Fee**
$3,076,515,600	$399,331.73

* Estimated solely for purposes of calculating the filing fee. This calculation is based on the offer to purchase all of the issued and outstanding shares of common stock, par value $0.00001 per share, of Audentes Therapeutics, Inc. (“Audentes”), at a purchase price of $60.00 per share, net to the seller in cash, without interest and less any applicable tax withholding. As of December 13, 2019 (the most recent practicable date): (i) 46,272,171 shares of Audentes common stock were issued and outstanding, (ii) no shares of Audentes common stock were held by Audentes in its treasury, (iii) 4,602,571 shares of Audentes common stock were subject to outstanding Audentes stock options, (iv) 379,196 shares of Audentes common stock were subject to outstanding Audentes restricted stock unit awards and (v) 21,322 shares of Audentes common stock were estimated to be subject to outstanding purchase rights under Audentes’ 2016 Employee Stock Purchase Plan.

** The filing fee was calculated in accordance with Rule0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2020, issued August 23, 2019, by multiplying the transaction value by 0.0001298.

☒  Check the box if any part of the fee is offset as provided by Rule0-11(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:    399,331.73	Filing Party: Astellas Pharma, Inc.
Form or Registration No.:    Schedule TO	Date Filed: December 16, 2019

☐ 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 Rule14d-1.

☐  Issuer tender offer subject to Rule13e-4.

☐  Going-private transaction subject to Rule13e-3.

☐  Amendment to Schedule 13D under Rule13d-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:

☐ Rule13e-4(i) (Cross-Border Issuer Tender Offer)

☐ Rule14d-1(d) (Cross-Border Third-Party Tender Offer)

This Amendment No. 2 (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 amendments and supplements thereto, including that certain Amendment No. 1 filed with the Securities and Exchange Commission on December 30, 2019, 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 by adding the below paragraph immediately prior to the final paragraph of the subsection titled “Certain Litigation” in Section 16—“Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase:

“On December 30, 2019, Francesco Tammaro, a purported stockholder of Audentes, filed a complaint in the United States District Court for the Eastern District of New York against Audentes and the individual members of the Audentes Board, captioned Tammaro v. Audentes Therapeutics, Inc., et. al, Case No.1:19-cv-07288 (the “Tammaro Complaint”). The Tamarro Complaint asserts that the defendants named therein violated sections 14(e), 14(d)(4) 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 Tammaro Complaint seeks, among other things, an order enjoining the defendants from consummating the transactions contemplated by the Merger Agreement.”

SIGNATURES

After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Asilomar Acquisition Corp.
By:	/s/ Brian S. Taylor
	Name: Brian S. Taylor
	Title:   Assistant Secretary
Astellas Pharma Inc.
By:	/s/ Kenji Yasukawa
	Name: Kenji Yasukawa
	Title:   President and CEO

Date: January 7, 2020