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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A
(AMENDMENT NO. 2)
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
SYNERGEN, INC.
(NAME OF SUBJECT COMPANY)
SYNERGEN, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(TITLE OF CLASS OF SECURITIES)
871594107
(CUSIP NUMBER OF CLASS OF SECURITIES)
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GREGORY B. ABBOTT
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SYNERGEN, INC.
1885 33RD STREET
BOULDER, COLORADO 80301
(303) 938-6200
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE
NOTICE AND COMMUNICATIONS ON BEHALF OF PERSON(S) FILING STATEMENT)
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COPIES TO:
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LARRY W. SONSINI, ESQ. GEORGE A. VANDEMAN, ESQ.
AARON J. ALTER, ESQ. LATHAM & WATKINS
WILSON, SONSINI, GOODRICH & ROSATI 633 WEST FIFTH STREET, SUITE 4400
650 PAGE MILL ROAD LOS ANGELES, CALIFORNIA 90071-2007
PALO ALTO, CALIFORNIA 94304-1050 (213) 485-1234
(415) 493-9300
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This Amendment No. 2 amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 (the "Schedule 14D-9") of Synergen, Inc., a Delaware
corporation (the "Company"), filed with the Securities and Exchange Commission
on November 23, 1994, as amended by Amendment No. 1 to the Schedule 14D-9, as
filed with the Securities and Exchange Commission on December 2, 1994 relating
to the offer to purchase all of the outstanding shares of the Company's Common
Stock, par value $.01 per share (the "Shares") (including the associated
Preferred Stock Purchase Rights issued pursuant to the Rights Agreement dated as
of October 24, 1991, between the Company and Chemical Trust Company of
California, as Rights Agent), by Amgen Acquisition Subsidiary, Inc.
("Purchaser"), a Delaware corporation and wholly owned subsidiary of Amgen Inc.,
a Delaware corporation ("Parent"), in each case at $9.25 per Share, net to the
seller in cash, without interest. All capitalized terms not otherwise defined
herein shall have the meanings given to such terms in the Schedule 14D-9.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
Preferred Stock Purchase Rights. On October 21, 1991, the Board of
Directors of the Company declared a dividend of one right (a "Right") for each
outstanding share of the Company's Common Stock. The dividend was paid on
November 5, 1991, to stockholders of record on that date. Holders of shares of
Common Stock issued after that date and until the Rights become exercisable
receive one Right for each share of Common Stock. The Rights trade automatically
with the shares of Common Stock and, until the Rights are exercisable, are
evidenced by the certificates for the Common Stock. The terms of the Rights are
set forth in the Rights Agreement, a copy of which was filed as Exhibit 1 to the
Company's Current Report on Form 8-A, as filed with the Securities and Exchange
Commission on November 5, 1991, as amended by the Company's Form 8 Amendment,
filed on November 7, 1991. Chemical Trust Company of California has assumed all
responsibilities as the Rights Agent under the Rights Agreement. The following
summary is not complete and is qualified in its entirety by reference to the
Rights Agreement.
Each Right will entitle its registered holder to purchase from the Company
one one-hundredth of a share of the Company's Series A Junior Participating
Preferred Stock (the "Series A Preferred Stock"). The purchase price for each
one-hundredth share of Series A Preferred Stock is $335 (the "Purchase Price").
The Rights will become exercisable upon the earlier of (a) the tenth day after
the first public disclosure that a person or group has become an "Acquiring
Person" (defined below) or (b) the tenth business day after the commencement of
a tender or exchange offer (other than an offer by Company or certain related
entities) that, if consummated, would result in one person or group becoming an
Acquiring Person. In general, "Acquiring Person" means any person or group that
has beneficial ownership of 20 percent or more of the outstanding Common Stock,
but does not include Company or certain related entitles. Any Rights held by an
Acquiring Person or certain transferees of an Acquiring Person will become void
at the time the person becomes an Acquiring Person. The Rights expire on
November 5, 2001, unless earlier redeemed as described below.
Under certain circumstances, the Rights will entitle their holders to
purchase securities other than Series A Preferred Stock. If any person becomes
an Acquiring Person (other than pursuant to an offer for all shares determined
by the disinterested directors to be fair to the stockholders and in the best
interests of the Company and its stockholders (a "Qualifying Offer")), each
Right will entitle its holder to purchase upon exercise, for the Purchase Price,
Common Stock with a market value of twice the Purchase Price. In certain
circumstances, if the Company is acquired in a merger or other business
combination in which the Company is not the surviving corporation or if 50
percent or more of Company's assets or earnings power is transferred to another
entity after there is an Acquiring Person (other than in certain acquisitions
following a Qualifying Offer), each Right will entitle its holder to purchase a
number of shares of the acquiring entity's common stock with a market value of
twice the Purchase Price. However, a merger or other business combination
following a Qualifying Offer is exempted from this provision if the amount and
form of consideration being offered is the same as that paid in the Qualifying
Offer.
At any time before the earlier of (a) ten days following the first public
announcement by Company or an Acquiring Person that the Acquiring Person has
become such or (b) November 5, 2001, the Board of Directors of the Company may
redeem the Rights in whole, but not in part, for $.001 per Right (the
"Redemption Price"). Under certain circumstances specified in the Rights
Agreement, the Rights may be redeemed only with the concurrence of a majority of
the Continuing Directors (as defined in the Rights
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Agreement). If the Board elects to redeem the rights, the only right of the
holders of Rights will be to receive the Redemption Price.
The Rights do not entitle their holders to any rights as stockholders of
Company, such as voting or dividend rights. Company may amend the Rights
Agreement without the approval of any holder of the Rights except as otherwise
specified in that agreement.
The Rights may have certain antitakeover effects. The Rights may cause
substantial dilution to the interest in the Company held by a person or group
that attempts to acquire the Company without conditioning the offer on acquiring
a substantial number of Rights. The purpose of the Rights is to encourage
potential acquirors to negotiate with Company's Board before attempting a
takeover and to give the Board leverage in negotiating on behalf of all
stockholders of the Company the terms of any proposed takeover. The Rights may,
but are not intended to, deter takeover proposals.
As provided for in the Rights Agreement, the disinterested directors of the
Board have determined that the Offer is a Qualifying Offer. Accordingly, because
the amount and form of the Merger Consideration are the same as the amount and
form of consideration being offered in the Offer, the terms of the Rights
Agreement allowing for the exercise of the Rights in connection with a tender
offer are inapplicable to the transactions contemplated by the Offer or the
Merger.
Litigation. On Wednesday, November 23, 1994, one stockholder filed a
putative class action and derivative actions suit in the District Court, County
of Boulder, State of Colorado against the Company, certain of its officers and
directors and Parent. The case is captioned Bruce Livergood v. Synergen, Inc.,
et al., Case No. 84-CV1347 (Dist. Ct., Boulder County Ct., Colo., Nov. 23,
1994). The complaint alleges, among other things, that certain of the defendants
breached their fiduciary duties and committed fraud by omission with respect to
the transactions contemplated by the Offer and the Merger. Plaintiff seeks an
injunction, both preliminarily and permanently, enjoining the consummation of
the Offer and the Merger or, in the alternative, an award of compensatory and
punitive damages.
On Tuesday, November 29, 1994, two stockholders filed a putative class
action and derivative action suit in the District Court, County of Boulder,
State of Colorado against the Company, certain of its officers and directors and
Parent. The case is captioned John Weld, Sr. and Gerald Topiel v. Amgen, Inc.,
et al., Case No. 94-CV1370 (Dist. Ct., Boulder County Ct., Colo., Nov. 29,
1994). The complaint alleges, among other things, that certain of the defendants
breached their fiduciary duties and committed fraud by omission with respect to
the transactions contemplated by the Offer and the Merger. Plaintiffs seek an
injunction, both preliminarily and permanently, enjoining the consummation of
the Offer and the Merger or, in the alternative, an award of compensatory and
punitive damages.
The foregoing summaries, as well as the summary of the litigation captioned
Anna Stanley and Len Kahn v. Larry Soll, et al., set forth in the Schedule
14D-9, are qualified in their entirety by reference to the respective complaints
attached hereto as Exhibits 99.3-99.5, which complaints are incorporated herein
by this reference.
Hart-Scott-Rodino Antitrust Improvements Act. On December 14, 1994, the
Company received from the Federal Trade Commission a notice of early termination
of the waiting period applicable to the acquisition by the Purchaser of the
Company under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended. A copy of the press release issued by the Parent relating to such
notice is filed as Exhibit 99.6 to the Schedule 14D-9.
Class Action Settlement. On December 15, 1994, the Court issued an Order
preliminarily approving the parties' Stipulation of Settlement in the Class
Action pending in the United States District Court for the District of Colorado.
The parties have agreed, subject to the conditions stated in the Stipulation, to
settle the Class Action. Assuming that the Settlement conditions are satisfied
and the Settlement is finally approved by the Court, Synergen and its insurers
will contribute $28 million towards the Settlement in exchange for a full
release of all claims asserted in or related to the Class Action.
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ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
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Exhibit 2.1* Agreement and Plan of Merger, dated as of November 17, 1994, among Parent,
Purchaser and the Company.
Exhibit 10.1* Confidentiality Agreement between the Company and Amgen Inc. dated August
22, 1994.
Exhibit 10.2* Form of Indemnification Agreement between the Company and each of its
executive officers and directors.
Exhibit 10.3* Employment Agreement dated as of May 19, 1994, Amendment to Executive
Officer Employment Agreement dated October 1, 1994, and Addendum No. 1 to
Employment Agreement dated as of October 26, 1994, between Larry Soll and
the Company.
Exhibit 10.4* Employment Agreement dated May 19, 1994, and Addendum No. 1 to Executive
Officer Employment Agreement dated as of October 26, 1994, between Gregory
Abbott and the Company.
Exhibit 10.5* Employment Agreement dated April 8, 1993, and Addendum No. 1 to Executive
Officer Employment Agreement dated as of October 26, 1994, between Mark
Young and the Company.
Exhibit 10.6* Employment Agreement dated April 8, 1993, and Addendum No. 1 to Executive
Officer Employment Agreement dated as of October 26, 1994, between Robert
Thompson and the Company.
Exhibit 10.7* Employment Agreement dated April 8, 1993, and Addendum No. 1 to Executive
Officer Employment Agreement dated as of October 26, 1994, between Kenneth
Collins and the Company.
Exhibit 10.8* Form of Employment Agreement between the Company and its vice presidents
and treasurer.
Exhibit 20.1* The Company's Information Statement pursuant to Section 14(f) of the
Securities Exchange Act of 1934 and Rule 14f-1 thereunder.
Exhibit 20.2* Copy of Letter to Stockholders, dated November 23, 1994.
Exhibit 99.1* Press Release issued by the Company and Parent on November 18, 1994.
Exhibit 99.2* Opinions of Morgan Stanley & Co. Incorporated and Alex. Brown & Sons
Incorporated, dated November 17, 1994.
Exhibit 99.3* Complaint in an action in the Court of Chancery of the State of Delaware
in and for New Castle County styled Anna Stanley and Len Kahn v. Larry
Soll et al., Case No. 13892 (November 18, 1994).
Exhibit 99.4* Complaint in an action in the District Court, County of Boulder, State of
Colorado styled Bruce Livergood v. Synergen, Inc. et al., Case No.
94-CV1347 (November 23, 1994).
Exhibit 99.5* Complaint in an action in the District Court, County of Boulder, State of
Colorado styled John Weld, Sr. and Gerald Topiel v. Amgen Inc., et al.,
Case No. 94-CV1370 (November 29, 1994).
Exhibit 99.6 Press Release issued by the Parent on December 14, 1994.
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* Previously filed.
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SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: December 16, 1994 SYNERGEN, INC.
By: /s/ KENNETH J. COLLINS
KENNETH J. COLLINS,
EXECUTIVE VICE PRESIDENT,
FINANCE AND ADMINISTRATION
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EXHIBIT INDEX
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SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
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2.1* Agreement and Plan of Merger, dated as of November 17, 1994, among
Parent, Purchaser and the Company....................................
10.1* Confidentiality Agreement between the Company and Amgen Inc. dated
August 22, 1994......................................................
10.2* Form of Indemnification Agreement between the Company and each of its
executive officers and directors.....................................
10.3* Employment Agreement dated as of May 19, 1994, Amendment to Executive
Officer Employment Agreement dated October 1, 1994, and Addendum No.
1 to Employment Agreement dated as of October 26, 1994, between Larry
Soll and the Company.................................................
10.4* Employment Agreement dated May 19, 1994, and Addendum No. 1 to
Executive Officer Employment Agreement dated as of October 26, 1994,
between Gregory Abbott and the Company...............................
10.5* Employment Agreement dated April 8, 1993, and Addendum No. 1 to
Executive Officer Employment Agreement dated as of October 26, 1994,
between Mark Young and the Company...................................
10.6* Employment Agreement dated April 8, 1993, and Addendum No. 1 to
Executive Officer Employment Agreement dated as of October 26, 1994,
between Robert Thompson and the Company..............................
10.7* Employment Agreement dated April 8, 1993, and Addendum No. 1 to
Executive Officer Employment Agreement dated as of October 26, 1994,
between Kenneth Collins and the Company..............................
10.8* Form of Employment Agreement between the Company and its vice
presidents and treasurer.............................................
20.1* The Company's Information Statement pursuant to Section 14(f) of the
Securities Exchange Act of 1934 and Rule 14f-1 thereunder............
20.2* Copy of Letter to Stockholders, dated November 23, 1994..............
99.1* Press Release issued by the Company and Parent on November 18,
1994.................................................................
99.2* Opinions of Morgan Stanley & Co. Incorporated and Alex. Brown & Sons
Incorporated, dated November 17, 1994................................
99.3* Complaint in an action in the Court of Chancery of the State of
Delaware in and for New Castle County styled Anna Stanley and Len
Kahn v. Larry Soll et al., Case No. 13892 (November 18, 1994)........
99.4* Complaint in an action in the District Court, County of Boulder,
State of Colorado styled Bruce Livergood v. Synergen, Inc. et al.,
Case No. 94-CV1347 (November 23, 1994)...............................
99.5* Complaint in an action in the District Court, County of Boulder,
State of Colorado styled John Weld, Sr. and Gerald Topiel v. Amgen
Inc., et al., Case No. 94-CV1370 (November 29, 1994).................
99.6 Press Release issued by the Parent on December 14, 1994..............
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* Previously filed.
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EXHIBIT 99.6
AMGEN RECEIVES
FEDERAL TRADE COMMISSION
ANTITRUST CLEARANCE
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Investor Contact: Media Contact:
Sarah H. Crampton David Kaye
Director, Investor Relations and Manager, Product
Corporate Communications Communications
(805) 447-1659 (805) 447-6692
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FOR IMMEDIATE RELEASE
THOUSAND OAKS, Calif., December 14, 1994 -- Amgen today announced that the
Federal Trade Commission (FTC) has granted early termination of the waiting
period required by the Hart-Scott-Rodino Antitrust Improvements Act, for Amgen's
pending tender offer for Synergen, Inc.
"The early clearance by the FTC enables us to continue to move toward the
expected completion of the pending tender offer on December 21st," said Gordon
Binder, Amgen's chairman and chief executive officer.
On November 18, 1994, Amgen announced it had signed a merger agreement with
Synergen through which Amgen would acquire Synergen. In accord with the merger
agreement, a subsidiary of Amgen (Amgen Acquisition Subsidiary, Inc.) commenced
a cash tender offer for all outstanding shares of Synergen common stock at $9.25
per share on November 23, 1994.
The tender offer is scheduled to expire at 12:00 midnight, New York City
time on Wednesday, December 21, 1994, unless extended. Under the merger
agreement, early termination or expiration of the Hart-Scott-Rodino waiting
period is one of the conditions to complete the tender offer. Once the other
conditions set forth in the merger agreement have been met, Amgen will
consummate the purchase of Synergen shares pursuant to the tender offer.
Amgen (NASDAQ:AMGN) is a global biotechnology company that discovers,
develops, manufactures and markets human therapeutics based on advanced cellular
and molecular biology.
