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    SEC Form SC TO-T/A filed by Akouos Inc. (Amendment)

    11/30/22 6:58:20 AM ET
    $AKUS
    Specialty Chemicals
    Consumer Discretionary
    Get the next $AKUS alert in real time by email
    SC TO-T/A 1 d424354dsctota.htm SC TO-T/A SC TO-T/A

     

     

    UNITED STATES

    SECURITIES AND EXCHANGE COMMISSION

    Washington, D.C. 20549

     

     

    SCHEDULE TO

    Tender Offer Statement under Section 14(d)(1) or 13(e)(1)

    of the Securities Exchange Act of 1934

    (Amendment No. 3)

     

     

    AKOUOS, INC.

    (Name of Subject Company (issuer))

     

     

    KEARNY ACQUISITION CORPORATION

    (Offeror)

    a wholly-owned subsidiary of

    ELI LILLY AND COMPANY

    (Parent of Offeror)

    (Names of Filing Persons (identifying status as offeror, issuer or other person))

     

     

    Common stock, $0.0001 par value per share

    (Title of Class of Securities)

    00973J101

    (CUSIP Number of Class of Securities)

     

     

    Anat Hakim

    Executive Vice President, General Counsel and Secretary

    Eli Lilly and Company

    Lilly Corporate Center

    Indianapolis, Indiana 46285

    Telephone: (317) 276-2000

    (Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)

     

     

    Copy to:

    Sophia Hudson, P.C.

    Sharon Freiman

    Kirkland & Ellis LLP

    601 Lexington Avenue

    New York, New York 10022

    Telephone: (212) 446-4800

     

     

     

    ☐

    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. 3 to the Tender Offer Statement on Schedule TO (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission (the “SEC”) on October 31, 2022 (as amended and supplemented from time to time, the “Schedule TO”) and relates to the offer by Kearny Acquisition Corporation (the “Purchaser”), a Delaware corporation and a wholly-owned subsidiary of Eli Lilly and Company, an Indiana corporation (“Lilly”), to purchase all of the issued and outstanding shares of common stock, par value $0.0001 per share (the “Shares”), of Akouos, Inc., a Delaware corporation (“Akouos”), in exchange for (a) $12.50 per Share, net to the stockholder in cash, without interest and less any applicable tax withholding, plus (b) one non-tradable contingent value right (“CVR”) per Share, which represents the contractual right to receive contingent payments of up to $3.00 per CVR, net to the stockholder in cash, without interest and less any applicable tax withholding, upon the achievement of certain specified milestones in accordance with the terms and subject to the conditions of a contingent value rights agreement to be entered into with a rights agent selected by Lilly and reasonably acceptable to Akouos, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated October 31, 2022 (the “Offer to Purchase”), and in the related Letter of Transmittal (which, together with the Offer to Purchase, each as amended or supplemented from time to time, collectively constitute the “Offer”), 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 respective meanings ascribed to them in the Schedule TO.

    Items 1 through 9 and Item 11.

    The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO are hereby amended and supplemented as follows:

    “The Offer and related withdrawal rights expired as scheduled at one minute past 11:59 p.m., Eastern Time, on November 29, 2022, and was not extended (such date and time, the “Expiration Time”). The Depositary has advised Purchaser that, as of the Expiration Time, 29,992,668 Shares had been validly tendered and not validly withdrawn pursuant to the Offer, representing 81.1% of the issued and outstanding Shares as of the Expiration Time. Accordingly, the Minimum Tender Condition has been satisfied. Lilly and Purchaser have accepted for payment, and will promptly pay for, all Shares that were validly tendered and not validly withdrawn pursuant to the Offer prior to the Expiration Time.

    Lilly expects to consummate the Merger on December 1, 2022, in accordance with, and subject to the terms of, the Merger Agreement.

    Following the consummation of the Merger, all Shares will be delisted from Nasdaq and deregistered under the Exchange Act.

    A copy of the press release issued by Lilly and Akouos on November 30, 2022 announcing the expiration and results of the Offer is filed as Exhibit (a)(5)(B) to the Schedule TO and is incorporated by reference herein.”

    Item 12. Exhibits.

    Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:

     

    Exhibit
    No.
     

    Description

    (a)(5)(B)   Joint Press Release issued on November 30, 2022.


    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.

     

    Date: November 30, 2022     KEARNY ACQUISITION CORPORATION
        /s/ Philip L. Johnson
        Name:   Philip L. Johnson
        Title:   President
        ELI LILLY AND COMPANY
        /s/ Anat Ashkenazi
        Name:   Anat Ashkenazi
        Title:   Executive Vice President and Chief Financial Officer
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