UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
September 30, 2020
Via Email
Brett A. Pletcher, Esq.
Executive Vice President, Corporate Affairs and General Counsel
Gilead Sciences, Inc.
333 Lakeside Drive
Foster City, CA 94404
Re: Immunomedics, Inc.
Schedule TO-T filed on September 24, 2020
Filed by Maui Merger Sub, Inc. and Gilead Sciences, Inc.
File No. 005-35857
Dear Mr. Pletcher:
The staff in the Office of Mergers and Acquisitions has reviewed the
filing listed above,
and we have the comments set forth below. All defined terms used herein have
the same
meaning as in the Offer to Purchase attached as Exhibit (a)(1)(A) to the
Schedule TO-T. In some
of our comments, we may ask you to provide us with information so we may
better understand
your disclosure.
Please respond to this letter by amending your filing, by providing
the requested
information or by advising us when you will provide the requested response.
If you do not
believe our comments apply to your facts and circumstances or do not believe
an amendment is
appropriate, please tell us why in your response.
After reviewing any amendment to your filing and the information you
provide in
response to these comments, we may have additional comments.
Exhibit (a)(1)(A) Offer to Purchase
Terms of the Offer, page 11
1. We note the following statement on page 13: Without Immunomedics
consent, there
will not be a subsequent offering period for the Offer. Please
advise us how the
conditional nature of this statement complies with Item 1004(a)(1)(iv)
of Regulation M-
A, or revise the statement accordingly.
Brett A. Pletcher, Esq.
Gilead Sciences, Inc.
September 30, 2020
Page | 2
Conditions of the Offer, page 53
2. We note your statement on page 55 that the Offer conditions may be
asserted by Parent
or Purchaser regardless of the circumstances giving rise to any such
conditions (including
any action or inaction by Parent or Purchaser). Conditions that are
subjectively
determinable or within the control of a bidder may result in the Offer
being deemed
illusory in contravention of Section 14(e) of the Exchange Act. Please
revise this
statement to remove the implication that the Offer conditions may be
triggered by your
action or inaction.
3. We note the following statement on page 55: The failure by Parent or
Purchaser at any
time to exercise any of the foregoing rights will not be deemed a waiver
of any such right
and each such right will be deemed an ongoing right which may be asserted
at any time
and from time to time prior to the expiration of the Offer (except for
conditions relating
to government regulatory approvals). This statement suggests that you
may become
aware that an Offer condition has been triggered or otherwise has become
incapable of
being satisfied, yet the Offer may proceed without a disclosure being
made. As stated
elsewhere in the Offer to Purchase, however, the Offer materials must be
amended to
disclose material changes. To the extent you become aware of any
condition being
triggered that would enable you to terminate the Offer or otherwise
cancel your
obligation to accept tenders, and you elect to proceed with the Offer, we
view that
decision as being tantamount to a waiver of the condition and a material
change to the
Offer. Accordingly, please revise this disclosure to avoid any
inconsistency with respect
to your stated understanding of your planned treatment of material
changes.
Exhibit (a)(1)(B) Letter of Transmittal
4. We note the following statement: Purchaser s interpretation of the
terms and conditions
of the Offer (including the Letter of Transmittal and the instructions
thereto) will be final
and binding. Please revise this statement to remove the implication
that stockholders
may not challenge Purchaser s interpretations in a court of competent
jurisdiction,
consistent with the qualification contained in similar statements
throughout the Letter of
Transmittal and Offer to Purchase.
Exhibit (a)(1)(E) Letter to Clients for Use by Brokers, Dealers, Commercial
Banks, Trust
Companies and Other Nominees
5. Please revise the following statement in conformity with any revisions
you make in
response to comment #4 above: The undersigned understands and
acknowledges that all
questions as to validity, form and eligibility of the surrender of any
certificate
representing Shares submitted on my behalf will be determined by
Purchaser and such
determination shall be final and binding.
* * *
Brett A. Pletcher, Esq.
Gilead Sciences, Inc.
September 30, 2020
Page | 3
We remind you that the registrant and its management are responsible
for the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Please direct any questions to David Plattner, Special Counsel, at
(202) 551-8094, or me,
at (202) 551-8729.
Sincerely,
/s/ Valian A.
Afshar
Valian A. Afshar
Special Counsel
Office of Mergers
and Acquisitions
cc: Marc O. Williams, Esq.
Cheryl Chan, Esq.
Davis Polk & Wardwell LLP