UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 4)
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
AKOUOS, INC.
(Name of Subject Company)
AKOUOS, INC.
(Name of Persons Filing Statement)
Common stock, par value $0.0001 per share
(Title of Class of Securities)
00973J 101
(CUSIP Number of Class of Securities)
Emmanuel Simons, Ph.D., M.B.A.
President and Chief Executive Officer
Akouos, Inc.
645 Summer Street
Suite 200
Boston, Massachusetts 02210
(857) 410-1818
(Name, address, and telephone number of person authorized to receive notices and communications
on behalf of the persons filing statement)
With copies to:
| Rosemary G. Reilly, Esq. Joseph Conahan, Esq. Andrew Bonnes, Esq. Molly Fox, Esq. Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 Telephone: (617) 526-6000 |
Karoline K. Shair, Ph.D., J.D. Chief Legal Officer Akouos, Inc. 645 Summer Street Suite 200 Boston, Massachusetts 02210 (857) 410-1818 |
| ☐ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
This Amendment No. 4 (this “Amendment”) to Schedule 14D-9 amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 previously filed by Akouos, Inc., a Delaware corporation (the “Company”), with the U.S. Securities and Exchange Commission (the “SEC”) on October 31, 2022 (as amended or supplemented from time to time, the “Schedule 14D-9”), with respect to the tender offer by Kearny Acquisition Corporation, a Delaware corporation (“Purchaser”) and a wholly-owned subsidiary of Eli Lilly and Company, an Indiana corporation (“Parent”), to purchase all of the Company’s issued and outstanding shares of common stock, par value $0.0001 per share (the “Shares”), in exchange for (i) $12.50 per Share, net to the stockholder in cash, without interest and less any applicable tax withholding, plus (ii) 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 Parent and reasonably acceptable to the Company, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated as of October 31, 2022 (together with any amendments or supplements thereto, the “Offer to Purchase”), and in the related Letter of Transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal,” which, together with the Offer to Purchase, constitutes the “Offer”). The Offer is described in a Tender Offer Statement on Schedule TO (as amended or supplemented from time to time, the “Schedule TO”) filed jointly by Parent and Purchaser with the SEC on October 31, 2022. The Offer to Purchase and the Letter of Transmittal have been filed as Exhibits (a)(1)(A) and (a)(1)(B) to the Schedule 14D-9, respectively.
Capitalized terms used in this Amendment but not defined herein shall have the respective meanings given to such terms in the Schedule 14D-9. The information set forth in the Schedule 14D-9 remains unchanged and is incorporated herein by reference, except that such information is hereby amended or supplemented to the extent specifically provided herein.
Item 8. Additional Information.
Item 8 of the Schedule 14D-9, as amended, is hereby amended and supplemented by adding the following new subsection before the final subsection entitled “(g) Cautionary Note Regarding Forward-Looking Statements.” (which shall be redesignated as subsection “(h) Cautionary Note Regarding Forward-Looking Statements.”) at the end of such Item 8:
“(g) Expiration of the Offer.
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. Parent 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.
Parent 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 The Nasdaq Global Select Market and deregistered under the Exchange Act.
A copy of the press release issued by Parent and the Company on November 30, 2022 announcing the expiration and results of the Offer is filed as Exhibit (a)(5)(G) hereto and is incorporated by reference herein.”
Item 9. Exhibits.
Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following exhibit:
| Exhibit |
Description | |
| (a)(5)(G) |
Joint Press Release, dated November 30, 2022, issued by Akouos, Inc. and Eli Lilly and Company (incorporated by reference to Exhibit (a)(5)(B) to the Schedule TO). | |
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.
| Dated: November 30, 2022 | Akouos, Inc. | |||||
| By: | /s/ Emmanuel Simons | |||||
| Name: Emmanuel Simons | ||||||
| Title: President and Chief Executive Officer | ||||||