SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE TO
Amendment
No. 4
Tender
Offer Statement under Section 14(d)(1) or 13(e)(1)
of
the Securities Exchange Act of 1934
COUGAR
BIOTECHNOLOGY, INC.
(Name of
Subject Company (Issuer))
KITE
MERGER SUB, INC.
(Offeror)
A
Wholly-Owned Subsidiary of
JOHNSON &
JOHNSON
(Offeror)
(Names of
Filing Persons (identifying status as offeror, issuer or other
person))
COMMON
STOCK, $0.0001 PAR VALUE
(Title of
Class of Securities)
222083107
(CUSIP
Number of Class of Securities)
Clifford
Birge, Esq.
Johnson &
Johnson
One
Johnson & Johnson Plaza
New
Brunswick, NJ 08933
(732) 524-6400
(Name,
address, and telephone numbers of person authorized to receive notices and
communications on behalf of filing persons)
Copies
to:
Robert
I. Townsend, III, Esq.
Damien
R. Zoubek, Esq.
Cravath,
Swaine & Moore LLP
Worldwide
Plaza
825
Eighth Avenue
New
York, NY 10019-7475
(212) 474-1000
CALCULATION
OF FILING FEE
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Transaction
Valuation(1)
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Amount
of Filing Fee(2)
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$1,054,319,709.00
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$58,831.04
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(1)
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Estimated
for purposes of calculating the filing fee only. This amount is determined
by multiplying 24,519,063 shares of Cougar Biotechnology, Inc. common
stock (outstanding as of June 2, 2009 and shares of common stock
issuable before the expiration of the offer upon the exercise of
in-the-money options and warrants) by $43.00 per share, which is the offer
price.
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(2)
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The
filing fee was calculated in accordance with Rule 0-11 under the
Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #5 for
fiscal year 2009, issued March 11, 2009, by multiplying the
transaction value by 0.0000558.
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x Check the
box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify
the filing with which the offsetting fee was previously paid. Identify the
previous filing by registration statement number, or the form or schedule and
the date of its filing.
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Amount
Previously Paid: $58,831.04
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Filing
Party: Johnson & Johnson and Kite Merger Sub, Inc.
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Form
of Registration No.: Schedule TO
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Date
Filed: June 5, 2009
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o 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:
ý Third-party
tender offer subject to Rule 14d-1.
o Issuer
tender offer subject to Rule 13e-4.
o Going-private
transaction subject to Rule 13e-3.
ý 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. ý
This
Amendment No. 4 to the Tender Offer Statement on Schedule TO (this “Amendment”)
is filed by (i) Kite Merger Sub, Inc., a Delaware corporation (the “Purchaser”)
and wholly-owned subsidiary of Johnson & Johnson, a New Jersey corporation
(“Parent”), and (ii) Parent. This Amendment amends and supplements the Tender
Offer Statement on Schedule TO filed with the Securities and Exchange Commission
on June 5, 2009, (together with any amendments and supplements thereto, the
“Schedule TO”), and relates to the offer (the “Offer”) by the Purchaser to
purchase all of the outstanding shares of common stock, par value $0.0001 per
share (the “Shares”), of Cougar Biotechnology, Inc., a Delaware corporation (the
“Company”), at a purchase price of $43.00 per Share net to the seller in cash,
without interest and less any required withholding taxes, upon the terms and
subject to the conditions set forth in the Offer to Purchase dated June 5, 2009
(together with any amendments and supplements thereto, the “Offer to Purchase”),
and in the related Letter of Transmittal.
Capitalized
terms used and not defined herein shall have the meanings assigned to such terms
in the Offer to Purchase.
Items
1 through 9 and 11.
Items 1
through 9 and 11 of the Schedule TO are hereby amended and supplemented to
include the following:
“At 5:00
p.m., New York City time, on July 9, 2009, the subsequent offering period of the
Offer expired as scheduled. The subsequent offering period was not
extended. The Depositary has advised Parent that, as of the
expiration of the subsequent offering period of the Offer, a total of
approximately 20,148,930 Shares were validly tendered during the initial
offering period and the subsequent offering period of the Offer taken together,
representing approximately 95.9% of the Shares outstanding. The
Purchaser has accepted for payment all Shares validly tendered and not withdrawn
during the initial offering period of the Offer and all Shares validly tendered
during the subsequent offering period of the Offer.
Pursuant
to the terms of the Merger Agreement, Parent intends to consummate the Merger
following the expiration of the Offer. The Merger Agreement provides, among
other things, that, subject to certain conditions, the Purchaser will be merged
with and into the Company with the Company continuing as the surviving
corporation, wholly-owned by Parent. Each of the remaining Shares (other than
(i) Shares held by the Company as treasury stock or owned by Parent or the
Purchaser or their respective subsidiaries, which will be cancelled and will
cease to exist, and (ii) Shares owned by the Company’s stockholders who
perfect their appraisal rights under the DGCL) will be converted into the right
to receive $43.00 net in cash, without interest and less any required
withholding taxes, which is the same amount per Share that was paid in the
Offer. Following the Merger, the Shares will no longer be listed on
the NASDAQ.”
SIGNATURE
After due
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.
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KITE
MERGER SUB, INC.
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By
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/s/
Clifford A. Birge
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Name: Clifford
A. Birge
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Title: Secretary
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Date: July
9, 2009
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JOHNSON
& JOHNSON
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By
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/s/
Douglas Chia
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Name: Douglas
Chia
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Title: Assistant
Secretary
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Date: July
9, 2009
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