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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO 5)*
REGENERON PHARMACEUTICALS, INC.
(Name of Issuer)
COMMON STOCK, $.001 PAR VALUE
(Title of Class of Securities)
00075886F1
(CUSIP Number)
Steven M. Odre, Esq. with a copy to:
Senior Vice President, Gary Olson, Esq.
General Counsel and Secretary Latham & Watkins
Amgen Inc. 633 West Fifth Street
One Amgen Center Drive Suite 4000
Thousand Oaks, CA 91320-1789 Los Angeles, California 90071-2007
(805) 447-1000 (213) 485-1234
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 2, 2000
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box.[_]
Check the following box if a fee is being paid with the statement.[_] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
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NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. SEE Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter disclosure
provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 00075886F1
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1. Name of Person
AMGEN INC.
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2. Check the appropriate box if member of a group* (a)[_]
(b)[_]
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3. SEC use only
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4. Source of Funds*
OO
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5. Check box if disclosure of legal proceedings is required pursuant to items
2(d) or 2(e) [_]
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6. Citizenship or place of organization
DELAWARE
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Number of Shares 7. Sole Voting Power
Beneficially Owned 4,916,808
By Each Reporting ----------------------------------------------------
Person With 8. Shared Voting Power N/A
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9. Sole Dispositive Power
4,916,808
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10. Shared Dispositive Power N/A
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11. Aggregate amount beneficially owned by each reporting person
4,916,808
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12. Check box if the aggregate amount in row (11) excludes certain shares* [_]
N/A
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13. Percent of class represented by amount in row (11)
15.5%
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14. Type of person reporting*
CO
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* See instructions before filling out
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This Amendment No. 5 to Schedule 13D is being filed by Amgen Inc., a
Delaware corporation (the "Reporting Person"), to amend the Schedule 13D filed
on July 26, 1995, as amended by Amendment No. 1 filed on September 25, 1995,
Amendment No. 2 filed on December 6, 1995, Amendment No. 3 filed on March 5,
1996 and Amendment No. 4 filed on April 15, 1996 (the "Schedule 13D"), relating
to the common stock, $.001 par value per share (the "Common Stock") of Regeneron
Pharmaceuticals, Inc. (the "Issuer"). Unless otherwise indicated, all
capitalized terms used herein but not defined herein shall have the meaning
assigned to them in the Schedule 13D.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 to Schedule 13D is hereby amended and supplemented to add the
following information:
On March 2, 2000, the Reporting Person effected a cashless exercise of the
Warrants by delivery of 221,958 shares of Common Stock (valued at $50.46 per
share) and acquired upon such exercise 700,000 shares of Common Stock for a net
decrease in total beneficial ownership of 221,958 shares of Common Stock and a
net increase in direct ownership of 478,042 shares of Common Stock.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 to Schedule 13D is hereby amended as follows:
As a result of an August 1990 agreement between the Reporting Person and
the Issuer, further described in Item 6 below, the Reporting Person is subject
to a number of so-called "standstill" restrictions (the "Standstill
Restrictions"). One Standstill Restriction generally prohibits the Reporting
Person from acquiring more than 20% of the outstanding shares of capital stock
of the Issuer on a fully diluted basis. Other Standstill Restrictions generally
prohibit the Reporting Person from making acquisition proposals to the Issuer
and engaging in the solicitation of proxies. SEE Item 6 below, for additional
information with respect to the Standstill Restrictions. ALSO SEE Item 6,
below, for a discussion of certain (i) registration rights with respect to
certain of the Common Stock beneficially owned by the Reporting Person and (ii)
transfer restrictions relating to certain of the Common Stock beneficially owned
by the Reporting Person.
Subject to the Standstill Restrictions and depending on general market and
economic conditions affecting the Issuer and other relevant factors, the
Reporting Person may purchase additional shares of Common Stock or dispose of or
engage in hedging transactions with respect to some or all of its shares of
Common Stock from time to time in open market transactions, private transactions
or otherwise.
On March 2, 2000, the Reporting Person agreed to grant the underwriters in
a proposed public offering of Common Stock by the Issuer an over-allotment
option covering up to 600,000 shares of Common Stock. See Item 6 below for
additional information.
Except as set forth in the Schedule 13D, the Reporting Person has no
present plans or proposals with respect to any material change in the Issuer's
business or corporate structure or which relate to or would result in:
(1) the acquisition by any person of additional securities of the
Issuer, or the disposition of securities of the Issuer;
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(2) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its
subsidiaries;
(3) a sale or transfer of a material amount of assets of the Issuer or
any of its subsidiaries;
(4) any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number of term of
directors or to fill any existing vacancies on the board;
(5) any material change in the present capitalization or dividend
policy of the Issuer;
(6) changes in the Issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Issuer by any person;
(7) causing a class of securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934; or
(8) a class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934; or
(9) any action similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Paragraphs (a) through (e) of Item 5 to Schedule 13D are hereby amended and
restated in their entirety as follows:
(a) As of the close of business on March 2, 2000, the Reporting Person
beneficially owned 4,916,808 shares of Common Stock. Such shares of Common
Stock constitute approximately 15.5% of the 31,739,634 shares of Common Stock
outstanding as of February 28, 2000.
(b) The Reporting Person has the sole power to vote or to direct the vote,
and the sole power to dispose or to direct the disposition of, the shares of
Common Stock beneficially owned by the Reporting Person.
(c) On March 2, 2000, the Reporting Person effected a cashless exercise of
the Warrants by delivery of 221,958 shares of Common Stock (valued at $50.46 per
share) and acquired upon such exercise 700,000 shares of Common Stock for a net
decrease in total beneficial ownership of 221,958 shares of Common Stock and a
net increase in direct ownership of 478,042 shares of Common Stock.
(d) Not applicable.
(e) Not applicable.
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Item 6 to Schedule 13D is hereby amended and restated in its entirety as
follows:
Pursuant to the Class D Convertible Preferred Stock Purchase Agreement
dated as of August 31, 1990 by and between the Issuer and the Reporting Person
(the "Purchase Agreement"), the Reporting Person acquired, for an aggregate
purchase price of $15,000,000, beneficial ownership of 767,656 shares of Class D
Preferred Stock in 1990. In 1991, the Issuer effected a recapitalization and an
initial public offering of shares of its Common Stock and following such
recapitalization and offering the Reporting Person's 767,656 shares of Class D
Preferred Stock were automatically converted into 788,766 shares of Class A
Stock. As described in the Issuer's Restated Certificate of Incorporation, the
shares of Class A Stock are super-voting (each share having 10 votes instead of
one), are subject to certain transfer restrictions and are optionally
convertible, at any time and at the option of the holder thereof, and
mandatorily convertible, upon the transfer of such shares to someone other than
a permitted transferee, into an equal number of shares of Common Stock.
Section 9 of the Purchase Agreement also contains the Standstill
Restrictions referred to in Item 4. The Reporting Person has agreed, among
other things, for a period of 20 years or the term of a collaboration agreement
between the Issuer and the Reporting Person, whichever is earlier, (i) not to
purchase any shares of the capital stock of the Issuer if its ownership position
in the Issuer on a fully diluted basis would be greater than 20% of the then
outstanding capital stock of the Issuer, (ii) not to engage in the solicitation
of proxies and (iii) not to make any acquisition proposal. There are certain
very limited circumstances in which the Standstill Restrictions would not apply.
The Issuer has also granted the Reporting Person customary demand and
piggyback registration rights under Section 8 of the Purchase Agreement with
respect to certain of the shares of Common Stock beneficially owned by the
Reporting Person.
Section 11(d) of the Purchase Agreement also provides the Issuer with
certain rights of first refusal with respect to transfers by the Reporting
Person of certain shares of Common Stock to competitors of the Issuer.
Pursuant to a Stock and Warrant Purchase Agreement and Warrant Agreement
both dated as of April 15, 1996, by and between the Issuer and the Reporting
Person, the Reporting Person acquired from the Issuer in a private transaction
3,000,000 shares of Common Stock and the Warrants, for a total purchase price of
$48,000,000. The Warrants may be exercised any time on or before April 15,
2001. As part of the same transaction the Issuer and the Reporting Person
entered into a Registration Rights Agreement, dated as of April 15, 1996,
pursuant to which the Issuer granted to the Reporting Person customary demand
and piggyback registration rights with respect to the 3,000,000 shares of Common
Stock and the shares of Common Stock issuable upon exercise of the Warrants.
On March 2, 2000, the Warrant Agreement, dated as of April 15, 1996, by and
between the Issuer and the Reporting Person, pursuant to which the Reporting
Person had a right to
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acquire 700,000 shares of Common Stock, was amended to permit the cashless
exercise of the Warrants either (i) by delivery to the Issuer of shares of
Common Stock having an aggregate fair market value on the date of exercise equal
to the exercise price of the Warrants or (ii) by electing to receive, without
payment of any additional consideration, shares of Common Stock having a market
value equal to the difference between the value of the Common Stock covered by
the Warrants and the aggregate Exercise Price payable upon exercise of the
Warrants.
On March 2, 2000, the Issuer and the Reporting Person entered into an
Agreement pursuant to which the Reporting Person agreed: (i) to convert its
788,766 shares of Class A Stock, which have 10 votes per share, into 788,766
shares of Common Stock, which have one vote per share; (ii) to fully exercise
the Warrants; (iii) to grant the underwriters of a proposed public offering of
the Common Stock (the "Offering") an option to purchase from the Reporting
Person shares of Common Stock to cover over-allotments; and (iv) with certain
exceptions, not to sell or transfer any shares of Common Stock (A) for a period
beginning March 2, 2000 and ending on the effective date of the registration
statement relating to the Offering, provided that in no event shall this period
exceed ten weeks and (B) for a further period of 90 days beginning on the
effective date of such registration statement. In addition, the Issuer agreed
that the Offering would only include shares being sold by the Issuer and that
the Reporting Person would be the only party granting an over-allotment option
in the Offering.
On March 2, 2000, the Reporting Person effected a cashless exercise of the
Warrants by delivery of 221,958 shares of Common Stock (valued at $50.46 per
share) and acquired upon such exercise 700,000 shares of Common Stock for a net
decrease in total beneficial ownership of 221,958 shares of Common Stock and a
net increase in direct ownership of 478,042 shares of Common Stock.
The above descriptions of all of the above-mentioned agreements (the
"Agreements"), as well as the descriptions set forth in Item 4, are summaries
only and do not purport to be complete descriptions of the terms of such
Agreements. These summaries are subject to, and are qualified in their entirety
by reference to, the detailed provisions of the Agreements, which are filed as
exhibits to this Schedule 13D.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 to Schedule 13D is hereby amended and supplemented as follows:
7.6 Agreement, dated as of March 2, 2000, by and between the Issuer
and the Reporting Person.
7.7 Amendment to Warrant Agreement, dated as of March 2, 2000, by
and between the Issuer and the Reporting Person.
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SIGNATURE
After reasonable 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.
AMGEN INC.
By: /s/ Steven M. Odre
----------------------------
Name: Steven M. Odre
Title: Senior Vice President, General
Counsel and Secretary
Dated: March 7, 2000
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EXHIBIT 7.6
VIA FACSIMILE
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March 2, 2000
Amgen Inc.
One Amgen Center Drive
Thousand Oaks, California 91320-1799
Attn: General Counsel
Telecopy No. : (805) 499-8011
Ladies and Gentlemen:
In accordance with the Class D Convertible Preferred Stock Purchase
Agreement dated as of August 31, 1990 (the "Stock Purchase Agreement") by and
between Regeneron Pharmaceuticals, Inc. (the "Company"), and Amgen Inc.
("Amgen") and the Registration Rights Agreement dated as of April 15, 1996 (the
"Registration Rights Agreement" and, together with the Stock Purchase Agreement,
the "Agreements") by and between the Company and Amgen, we hereby notify you
that the Company intends to file a Registration Statement (the "Registration
Statement") for the offering (the "Offering") and sale of the shares of common
stock of the Company (the "Common Stock").
The parties hereto have agreed as follows:
1. As of the date hereof, Amgen shall fully exercise its rights
under the Warrant Agreement between the Company and Amgen, dated as of April 15,
1996, as amended by Amendment No. 1 to Warrant Agreement, dated as of the date
hereof, in accordance with Schedule I hereto.
2. Upon execution of a definitive underwriting agreement
between the Company and the underwriters with respect to the Offering, Amgen
shall grant to the underwriters of the Offering an option to purchase from Amgen
shares of the Company's Common Stock to cover the full amount of the
underwriters' over-allotment option. No such over-allotment option will be
granted by the Company. Both parties agree to comply with all of the provisions
of the Agreements with respect to the registration and sale of such shares of
Common Stock, subject to Section 4(c) below, as though the shares covered by the
underwriters' over-allotment option were registered pursuant to the piggyback
provisions of the Agreements. The Company agrees that the underwriting agreement
to be entered into by the Company and the
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underwriters with respect to the Offering shall not be inconsistent with the
provisions of this letter agreement.
3. The Company agrees that other than the sale by Amgen of the
Common Stock held by it pursuant to any exercise by the underwriters of the
over-allotment option, the Offering shall consist solely of a primary offering
of shares of Common Stock by the Company and no other holder of securities of
the Company shall participate in the Offering.
4. Other than the transactions contemplated hereunder, Amgen
agrees not to sell or transfer any shares of Common Stock of the Company for a
period beginning on the date hereof until the effective date of the Registration
Statement, provided that in no event shall this period exceed ten (10) weeks
from the date hereof (the "Initial Lock-Up Period").
(a) Specifically, during the Initial Lock-Up Period, Amgen shall
not:
. offer, pledge, sell or contract to sell any Common Stock,
. sell any option or contract to purchase any Common Stock,
. purchase any option or contract to sell any Common Stock,
. grant any option, right or warrant for the sale of any Common
Stock,
. otherwise dispose of or transfer any Common Stock, or
. enter into any swap or other agreement that transfers, in
whole or in part, the economic consequence of ownership of any Common Stock
whether any such swap or transaction is to be settled by delivery of shares or
other securities, in cash or otherwise.
(b) This lock-up provision applies to Common Stock and to
securities convertible into or exchangeable or exercisable for or repayable with
Common Stock. It also applies to Common Stock owned now or acquired later by
Amgen.
(c) The Company shall comply with the provisions of Section
5(a)(ii) of the Registration Rights Agreement and Section 8.9 of the Stock
Purchase Agreement except with respect to any lock-up agreement involving
Procter and Gamble. The Company and Amgen agree that for purposes of this letter
agreement only, the "Holdback Period" as defined in the Registration Rights
Agreement shall commence on the date the Company Registration Statement (as
defined in the Registration Rights Agreement) is declared effective by the
Securities and Exchange Commission and shall terminate not more than 90 days
thereafter.
5. Concurrently herewith, Amgen shall deliver notice to the
Company providing for the conversion effective as of the date hereof of all
788,766 shares of the Class A Stock, par value $.001 per share, of the Company
held by Amgen in accordance with the terms applicable thereto.
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REGENERON PHARMACEUTICALS, INC.
By: /s/ Murray A. Goldberg
_________________________
Name: Murray A. Goldberg
Title: Chief Financial Officer
Accepted and Agreed as of
the date first written above:
AMGEN INC.
By: /s/ Gordon M. Binder
_______________________
Name: Gordon M. Binder
Title: Chairman of the Board and
Chief Executive Officer
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<TABLE>
<CAPTION>
Schedule I
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Number of Shares Exercise Price Payment
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<S> <C> <C>
700,000 shares of $16.00 per share Either (i) by delivery of
Common Stock 221,958 shares of Common Stock
(valued at $50.46 per share)
or (ii) by net exercise as
contemplated by the Warrant
Agreement, as amended.
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</TABLE>
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EXHIBIT 7.7
AMENDMENT NO. 1
TO
WARRANT AGREEMENT
This AMENDMENT NO. 1 TO WARRANT AGREEMENT (this "Amendment") is dated
as of March 2, 2000, and entered into by and between AMGEN INC., a Delaware
corporation ("Amgen"), and REGENERON PHARMACEUTICALS, INC., a New York
corporation (the "Company").
R E C I T A L S
WHEREAS, on April 15, 1996, the Company and Amgen entered into the
Warrant Agreement (the "Warrant Agreement"); and
WHEREAS, pursuant to Section 14 of the Warrant Agreement, the Company
and Amgen now desire to amend the Warrant Agreement as hereinafter provided.
A M E N D M E N T
NOW, THEREFORE, the parties agree as follows:
1. All capitalized terms used herein and not otherwise defined herein
shall have the respective meanings assigned thereto in the Warrant Agreement.
2. Section 5 is hereby amended by (a) inserting "(the "Exercise Period")"
after the date "April 15, 2001" in the first sentence of the first paragraph
thereof; (b) inserting ", or (iii) in the manner provided in the first paragraph
of this Section 5" at the end of the last sentence of the second paragraph
thereof and (c) inserting the following sentences after the first sentence of
the first paragraph thereof:
"In the alternative, each holder may exercise its right, during the
Exercise Period, to receive Warrant Shares either (i) on a net basis, such that,
without the exchange of any funds, the holder receives that number of Warrant
Shares otherwise issuable (or payable) upon exercise of its Warrants less that
number of Warrant Shares having an aggregate fair market value (as defined
below) at the time of exercise equal to the aggregate Exercise Price that would
otherwise have been paid by the holder of the Warrant Shares or (ii) by delivery
to the Company of shares of Common Stock having an aggregate fair market value
at the time of exercise equal to the Exercise Price of the Warrants being
exercised. For purposes of the foregoing sentence, "fair market value" of the
Warrant Shares or the Common Stock will be equal to the last reported sale price
of the Common Stock on the NASDAQ National Market System on the date of any such
exercise."
3. The Warrant Certificate dated as of April 15, 1996 (the "Warrant
Certificate") and the Form of Election to Purchase shall hereby be deemed
amended to the extent inconsistent with this Amendment.
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4. This Amendment shall be effective as of the date hereof.
5. Except as modified by the foregoing, the terms and conditions of the
Warrant Agreement and the Warrant Certificate shall remain in full force and
effect.
6. This Amendment may be executed in any number of counterparts with the
same effect as if all parties hereto had signed the same document. All
counterparts shall be construed together and shall constitute one instrument.
7. THIS AMENDMENT, AND THE APPLICATION OR INTERPRETATION HEREOF, SHALL BE
GOVERNED EXCLUSIVELY BY ITS TERMS AND BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAW.
(Signature Page Follows)
2
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
REGENERON PHARMACEUTICALS, INC.
By: /s/ Murray A. Goldberg
-----------------------------
Name: Murray A. Goldberg
Title: Chief Financial Officer
AMGEN INC.
By: /s/ Gordon M. Binder
------------------------------
Name: Gordon M. Binder
Title: Chairman of the Board and
Chief Executive Officer
S-1
