UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 4)
Aimmune Therapeutics, Inc.
(Name of Subject Company (Issuer))
SPN MergerSub, Inc.
(Offeror)
A Wholly-Owned Subsidiary of
Société des Produits Nestlé S.A.
(Parent of Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, Par Value $0.0001 Per Share
(Title of Class of Securities)
00900T107
(CUSIP Number of Class of Securities)
Avenue Nestlé, 55
1800 Vevey
Switzerland
Attention: General Counsel
Phone: +41 21 924 1111
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
David A. Carpenter, Esq.
Mayer Brown LLP
1221 Avenue of the Americas
New York, New York 10020
Phone: (212) 506-2195
CALCULATION OF FILING FEE
| Transaction Valuation* | Amount of Filing Fee** | |
| $1,990,773,406.50 | $258,402.39 | |
| * | Estimated solely for purposes of calculating the filing fee pursuant to Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Transaction Valuation was calculated by multiplying (i) the sum of (a) 53,029,491, which is the difference between 65,766,796, the number of shares of common stock, par value $0.0001 per share, of Aimmune Therapeutics, Inc. (“Aimmune” and, such common stock, the “Aimmune Common Stock”) outstanding, and 12,737,305, which is the sum of 12,727,113, the number of shares of Aimmune Common Stock held by Société des Produits Nestlé S.A. (“Nestlé”) and 10,192, the number of shares of Aimmune Common Stock held by Greg Behar, (b) 314,549 shares subject to restricted stock units that will vest on or prior to October 9, 2020, (c) 4,268,896 shares of Aimmune Common Stock subject to outstanding stock options exercisable on or prior to October 9, 2020, and (d) 90,641 shares of Aimmune Common Stock estimated to be subject to issuance pursuant to Aimmune’s 2015 Employee Stock Purchase Plan, by (ii) $34.50, the offer price per share of Aimmune Common Stock. The foregoing figures are based on information provided by Aimmune as of September 10, 2020 (other than the number of shares held by Nestlé, which was determined by Nestlé). |
| ** | The filing fee was calculated in accordance with Rule 0-11 under the Exchange Act and Fee Rate Advisory No. 1 for Fiscal Year 2020, by multiplying the Transaction Valuation by 0.0001298. |
| ☒ | 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. |
| Amount Previously Paid: $258,402.39 | Filing Party: Société des Produits Nestlé S.A. | |
| Form of Registration No.: Schedule TO | Date Filed: September 14, 2020 |
| ☐ | 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. 4 (this “Amendment”) amends the combined Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO with the Securities and Exchange Commission on September 14, 2020 (as may be amended or supplemented from time to time, the “Schedule TO”) with respect to the offer by SPN MergerSub, Inc., a Delaware corporation and a wholly-owned subsidiary of Société des Produits Nestlé S.A., a société anonyme organized under the laws of Switzerland (“Nestlé”), to purchase all of the outstanding shares of common stock, par value $0.0001 per share, of Aimmune Therapeutics, Inc., a Delaware corporation (“Aimmune”), owned by the stockholders of Aimmune other than Nestlé and its affiliates, at a price of $34.50 per Share, net to the seller thereof in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated September 14, 2020 (the “Offer to Purchase”), which is annexed to and filed with the Schedule TO as Exhibit (a)(1)(A), and in the related Letter of Transmittal, which is annexed to and filed with the Schedule TO as Exhibit (a)(1)(B).
Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO and the Offer to Purchase remains unchanged and is incorporated herein by reference to the extent relevant to the matters set forth in this Amendment. Capitalized terms used but not defined in this Amendment have the meanings given to them in the Offer to Purchase.
| Item 11. | Additional Information. |
The information set forth in the Offer to Purchase and Item 11 of the Schedule TO is hereby amended as set forth below.
The last paragraph of the subsection titled “Antitrust Compliance” in “The Tender Offer—Section 13. Certain Legal Matters” in the Offer to Purchase is hereby amended to include the following as the last sentence of such paragraph:
“On October 5, 2020, the FCO provided a written notice that the Offer and Merger may be consummated. Accordingly, the German Regulatory Condition has been satisfied.”
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.
Dated: October 5, 2020.
| SPN MergerSub, Inc. | ||
| By: | /s/ James Pepin | |
| Name: James Pepin | ||
| Title: President | ||
| Société des Produits Nestlé S.A. | ||
| By: | /s/ Claudio Kuoni | |
| Name: Claudio Kuoni | ||
| Title: Authorized Representative | ||
