This Amendment No. 2 (this
Amendment
) amends and supplements the
Solicitation/Recommendation Statement on Schedule
14D-9
(as amended or supplemented from time to time, this
Schedule
14D-9
) filed by Array BioPharma
Inc. (
Array
) with the Securities and Exchange Commission (the
SEC
) on June 28, 2019, relating to the tender offer by Arlington Acquisition Sub Inc., a Delaware corporation (
Purchaser
) and
wholly owned subsidiary of Pfizer Inc., a Delaware corporation (
Pfizer
), to purchase all of the issued and outstanding shares of common stock, par value $0.001 per share (the
Shares
), other than Excluded Shares
and Converted Shares (each as defined in the Merger Agreement, dated as of June 14, 2019, among Array, Pfizer and Purchaser) of Array for a purchase price of $48.00 per Share in cash, net to the seller without interest thereon and subject to
any withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, filed by Pfizer and Purchaser with the SEC on June 28, 2019 (as amended or supplemented from time to time, the
Offer to
Purchase
), and in the related Letter of Transmittal, filed by Pfizer and Purchaser with the SEC on June 28, 2019 (as amended or supplemented from time to time, the
Letter of Transmittal
, which, together with the
Offer to Purchase, constitute the
Offer
).
Except to the extent specifically provided in this Amendment, the information set forth in
this Schedule 14D-9 remains unchanged. Capitalized terms used, but not otherwise defined, in this Amendment shall have the meanings ascribed to them in this
Schedule 14D-9.
This Amendment is being
filed to reflect certain updates as reflected below.
ITEM 8.
|
ADDITIONAL INFORMATION
|
Item 8 of this Schedule
14D-9
is hereby amended and supplemented by deleting the paragraph under the heading
Legal Proceedings
on page 43 of this Schedule
14D-9
and replacing it with the following paragraph:
On July 1, 2019, a purported stockholder of Array filed a putative class action lawsuit against Array, its directors, Pfizer and Purchaser in the United
States District Court for the District of Delaware, captioned
Michael Kent v. Array BioPharma Inc., et al.
, Case No.
1:19-cv-01248
(the
Kent
Complaint
). On July 2, 2019 another purported stockholder of Array filed a lawsuit against Array, its directors, Pfizer and Purchaser in the United States District Court for the Southern District of New York, captioned
Elaine Wang
v. Array BioPharma Inc., et al.
, Case No.
1:19-cv-06168
(the
Wang Complaint
). On July 3, 2019 a third purported stockholder of Array filed a
putative class action lawsuit against Array and its directors in the United States District Court for the District of Colorado, captioned
Jacques Noel v. Array BioPharma et al.
, Case No.
1:19-cv-01925.
On July 8, 2019, a fourth purported stockholder of Array filed a lawsuit against Array and its directors in the United States District Court for the District of Colorado, captioned
Mark
Groeschel v. Array BioPharma Inc., et al.
, Case No. 1:19-cv-01960. The complaints allege that Array and its directors, and, in the Kent Complaint and the Wang Complaint, Pfizer and Purchaser, violated Sections 14(d) and 14(e) of the Exchange Act
and Rule
14d-9
promulgated thereunder because the Schedule
14D-9
is materially deficient, and that Arrays directors (acting in their capacity as control persons of
Array) and, solely in the Kent Complaint, Pfizer (which the Kent Complaint alleges should also be deemed to be a control person of Array for purposes of Section 20(a) of the Exchange Act), violated Section 20(a) of the Exchange Act by
filing a materially deficient Schedule
14D-9.
Each of the complaints seeks, among other things, (i) injunctive relief preventing the consummation of the Transactions, (ii) rescissory damages or
rescission in the event the Transactions are consummated and (iii) plaintiffs attorneys and experts fees. The defendants believe the claims asserted in the complaints are without merit.