UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
Tender Offer Statement Pursuant to Section 14(d)(1)
or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 10)
F-STAR THERAPEUTICS, INC.
(Name of Subject Company)
SINO BIOPHARMACEUTICAL LIMITED,
INVOX PHARMA LIMITED
and
FENNEC ACQUISITION INCORPORATED
(Names of Filing Persons (Offerors))
Common Stock, $0.0001 par value per share
(Title of Class of Securities)
30315R 107
(CUSIP Number of Class of Securities)
Tyron Hussey
invoX Pharma Limited
5 Merchant Square
London, United Kingdom, W2 1AY
+44 203 786 5144
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and
Communications on Behalf of Filing Persons)
With a copy to:
George Casey
George Karafotias
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
(212) 848-4000
| ☒ | Check 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. |
Amount Previously Paid: |
$14,559 |
Filing Party: |
invoX
Pharma Limited |
Form or Registration No.: |
Schedule TO-T |
Date Filed: |
July 7, 2022 |
| ☐ | 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:
| ☒ | third-party tender offer subject to Rule 14d-1. |
| ☐ | issuer tender offer subject to Rule 13e-4. |
| ☐ | going-private transaction subject to Rule 13e-3. |
| ☐ | 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: ☐
If applicable, check the appropriate box(es) below to designate
the appropriate rule provision(s) relied upon:
| ☐ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ☐ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 10 to Schedule TO (together
with any exhibits and annexes attached hereto, and as it may be amended or supplemented from time to time, this “Amendment”)
is filed by (i) Fennec Acquisition Incorporated, a Delaware corporation (“Purchaser”) and a direct wholly-owned
subsidiary of invoX Pharma Limited, a private limited company organized under the laws of England and Wales (“Parent”),
which is a direct wholly-owned subsidiary of Sino Biopharmaceutical Limited, a company organized under the laws of the Cayman Islands
(“SBP”), (ii) Parent and (iii) SBP, and amends and supplements the Tender Offer Statement on Schedule TO filed
with the U.S. Securities and Exchange Commission (the “SEC”) on July 7, 2022 (together with any amendments and supplements
thereto, the “Schedule TO”) by Purchaser, Parent, and SBP. The Schedule TO relates to the offer by Purchaser to purchase
all of the issued and outstanding shares (each, a “Share” and collectively, the “Shares”) of common
stock, par value $0.0001 per share, of F-star Therapeutics, Inc., a Delaware corporation (the “Company”), for $7.12
per Share, payable net to the holder in cash, without interest, subject to any withholding taxes required by applicable law, and on the
terms and subject to the conditions set forth in the Offer to Purchase, dated July 7, 2022 (the “Offer to Purchase”),
a copy of which is attached as Exhibit (a)(1)(a) to the Schedule TO, and in the accompanying letter of transmittal, a copy of which is
attached as Exhibit (a)(1)(b) to the Schedule TO, and which, as each may be amended or supplemented from time to time, collectively constitute
the “Offer.”
Except as otherwise set forth in this Amendment,
the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items
in this Amendment. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule TO.
Items 1 through 9; Item 11.
The Offer to Purchase and Items 1 through 9
and Item 11 of the Schedule TO, to the extent such Items 1 through 9 and Item 11 incorporate by reference the information contained in
the Offer to Purchase, are hereby amended and supplemented by adding the following paragraph thereto:
“On December 20, 2022, Purchaser,
Parent, and SBP extended the Offer to one (1) minute past 11:59 p.m., Eastern Time, on December 28, 2022, unless further extended. The
Offer was previously set to expire at 5:00 p.m., Eastern Time, on December 23, 2022. The Depositary has advised Purchaser, Parent, and
SBP that, as of 4:00 p.m., Eastern Time, on December 20, 2022, 13,740,759 Shares had been validly tendered into and not properly withdrawn
from the Offer, representing approximately 62.49% of the outstanding Shares, and an additional approximately 231,597 Shares tendered pursuant
to a notice of guaranteed delivery.
The
Foreign Investment Condition of the Offer with respect to CFIUS has not yet been satisfied. As a result, on December 20, 2022,
Purchaser, Parent, and the Company entered into Amendment No. 3 (“Amendment No. 3”) to the Merger Agreement, in order
to: (i) include a Failure to Satisfy Offer Termination within the scope of the Equity Financing; and (ii) amend the Foreign
Investment Condition of the Offer with respect to CFIUS to provide that it will be satisfied if: a declaration or notification
has been made to or requested by CFIUS with respect to the transactions contemplated by the Merger Agreement, (x)
the CFIUS Action with respect to such declaration or notification has occurred or (y) the Parties have not received notification of
any actual or threatened commencement of any legal proceeding, issuance of any order, or taking of any other action, by or on behalf of
CFIUS that would seek to enjoin, prevent, restrain or otherwise prohibit the consummation of the
transactions contemplated by the Merger Agreement. Subject to satisfaction of the Foreign Investment Condition, as modified by Amendment
No. 3, and other customary closing conditions, the parties intend to proceed with closing and consummate the Merger on the business day
immediately following expiration of the Offer at one (1) minute past 11:59 p.m., Eastern Time, on December 28, 2022.”
Items 4 through 6; Item 11.
The Offer to Purchase and Items 4 through 6
and Item 11 of the Schedule TO, to the extent such Items 4 through 6 and Item 11 incorporate by reference the information contained in
the Offer to Purchase, are hereby amended and supplemented as follows:
| 1. | Section 12 — “Purpose of the Offer; Plans for the Company” of the Offer to Purchase is hereby amended and supplemented
by adding the following paragraphs at the end of the subsection titled “Plans for the Company”: |
“Promptly following the Effective
Time, Parent intends to transfer all of the outstanding shares of FTL from the Surviving Corporation to Parent (the “Share Transfer”).
Following the Share Transfer, FTL will be a direct wholly-owned subsidiary of Parent and an indirect subsidiary of SBP.
Immediately following the consummation
of the Share Transfer, Ben Toogood, Tyron Hussey and Neil Brewis intend to resign as members of the board of directors of the Surviving
Corporation, and Ben Toogood and Tyron Hussey intend to resign as officers of the Surviving Corporation, and Parent intends appoint one
or more independent directors (the “Independent Directors”) to the board of directors to oversee the administration
or divestiture of all of the assets and liabilities of the Surviving Corporation in the United Sates (the “U.S. Assets”).
The Independent Directors will have all rights and powers necessary to hold the U.S. Assets separate from Parent and its affiliates, and
the power and authority to administer or divest the U.S. Assets.”
Item 1; Items 4 through 5; Item 11.
The Offer to Purchase and Items 1, Items 4 through
5, and Item 11 of the Schedule TO, to the extent such Items 1, Items 4 through 5, and Item 11 incorporate by reference the information
contained in the Offer to Purchase, are hereby amended and supplemented as follows:
| 1. | The “Summary Term Sheet” section of the Offer to Purchase is hereby amended and supplemented by amending and restating
in its entirety the second bulleted item under the heading “What are the most significant conditions to the Offer?” to read
as follows (amended language in bold and underlined font): |
“● (a)
any consent, approval or clearance with respect to, or terminations or expiration of any applicable mandatory waiting period (and any
extensions thereof) imposed under the HSR Act or any foreign Antitrust Laws shall have been obtained, shall have been received or shall
have terminated or expired, as the case may be, and if applicable, all antitrust investigations by the U.S. Federal Trade Commission (the
“FTC”) or the U.S. Department of Justice (the “DOJ”) have been closed; and in the event the parties
receive a letter from the FTC or DOJ that the applicable waiting period will expire imminently or has expired but the FTC or DOJ is still
investigating the transactions contemplated by the Merger Agreement, such antitrust investigation will be deemed closed thirty (30) days
after receipt of such letter unless the FTC or DOJ issues a request to the parties seeking information or otherwise indicates that it
continues to actively investigate the transaction, in which case, such antitrust investigation will be deemed open until the earlier of
(i) the FTC or DOJ indicating that its investigation is closed, (ii) thirty (30) days after the parties have supplied any requested information
to the FTC or DOJ if the FTC or DOJ has indicated that it has no further requests or questions for the parties, or (iii) thirty (30) days
after the FTC or DOJ has indicated its investigation is still open so long as it has not sought during that time any information from
the parties about the transactions contemplated by the Merger Agreement, (b) if a declaration or notification has been made to or
requested by CFIUS with respect to the transactions contemplated by the Merger Agreement, (i) the CFIUS Action with respect to such declaration
or notification has occurred or (ii) the Parties have not received notification of any actual or threatened commencement of any legal
proceeding, issuance of any order, or taking of any other action, by or on behalf of CFIUS that would seek to enjoin, prevent, restrain
or otherwise prohibit the consummation of the transactions contemplated by the Merger Agreement, and (c) if any declaration, notification
or report forms have been filed or are required to be filed with the applicable governmental body under any applicable foreign investment
rules, including the NSIA, the applicable consent, approval or clearance with respect to such declaration, notification or report has
been obtained;”
| 2. | Clause (f) of Section 15 — “Conditions of the Offer” of the Offer to Purchase is hereby amended and restated in
its entirety to read as follows (amended language in bold and underlined font): |
“(f) (i) if a declaration
or notification has been made to or requested by CFIUS with respect to the transactions contemplated by the Merger Agreement, including
the Offer and the Merger, (A) the CFIUS Action with respect to such declaration or notification has occurred or (B) the Parties
have not received notification of any actual or threatened commencement of any legal proceeding, issuance of any order, or taking of any
other action, by or on behalf of CFIUS that would seek to enjoin, prevent, restrain or otherwise prohibit the consummation of the transactions
contemplated by the Merger Agreement, and (ii) if any declaration, notification or report
forms have been filed or are required to be filed with the applicable governmental body under any applicable Foreign Direct Investment
Laws, including the NSIA, with respect to the transactions contemplated by the Merger Agreement, including the Offer and the Merger, the
applicable consent, approval or clearance with respect to such declaration, notification or report has been obtained (each of the conditions
in this clause “(f)”, the “Foreign Investment Condition”);”
Items 5 through 6; Item 11.
The Offer to Purchase and Items 5 through 6
and Item 11 of the Schedule TO, to the extent such Items 5 through 6 and Item 11 incorporate by reference the information contained in
the Offer to Purchase, are hereby amended and supplemented as follows:
| 1. | Section 10 — “Background of the Offer; Past Contacts or Negotiations with the Company” of the Offer to Purchase
is hereby amended and supplemented by adding the following paragraphs at the end thereof: |
“On December 20, 2022, Purchaser,
Parent, and the Company entered into Amendment No. 3 (“Amendment No. 3”) to the Merger Agreement. Amendment No. 3 amends
the Foreign Investment Condition of the Offer with respect to CFIUS. Amendment No. 3 also
amends the Equity Financing provisions of the Merger Agreement include a Failure to Satisfy Offer Termination.
Other than as expressly modified pursuant
to Amendments No. 1, 2, and 3, the Merger Agreement, which was previously filed as Exhibit 2.1 to the Company’s Current Report on
Form 8-K filed with the Securities and Exchange Commission on June 23, 2022, remains in full force and effect as originally executed on
June 22, 2022. The foregoing description of Amendment No. 3 does not purport to be complete and is subject to, and qualified in its entirety
by, the full text of Amendment No. 3 attached as Exhibit (d)(11) hereto and incorporated herein by reference.”
| 2. | Section 11 — “The Merger Agreement; Other Agreements” of the Offer to Purchase is hereby amended and supplemented
by amending and restating in its entirety the paragraph therein entitled “Equity Financing; Securities Purchase Agreement”
to read as follows (amended language in bold and underlined font): |
“Equity Financing; Securities
Purchase Agreement. In the event that the Merger Agreement is terminated pursuant to (a) a Legal Restriction Termination, if the issuance
of the relevant order, decree or ruling, or the taking of the relevant action, is pursuant to any Foreign Direct Investment Law or (b)
a Failure to Satisfy Offer Termination or an End Date Termination, if the failure of the Offer Acceptance Time to have occurred
by the End Date (not taking into the account whether the Minimum Condition is then satisfied) is a result of the failure to satisfy the
Foreign Investment Condition (as defined below) on or before such date, then the Company may elect to consummate the Equity Financing
(as defined below), which election may be made in the Company’s sole discretion, by delivering to Parent within ten (10) business
days of any such termination, a written notice (the “Financing Election Notice”) of its decision to elect to consummate
the Equity Financing, and thereupon, within one (1) business day of the Company’s delivery of the Financing Election Notice to Parent,
the Company, Parent, Purchaser and SBP will execute and deliver a securities purchase agreement (the “Securities Purchase Agreement”),
pursuant to which the Company will issue Parent (or its applicable affiliate(s)), shares of Common Stock for an aggregate purchase price
of $12,000,000 at a purchase price per share equal to $4.49 per share; provided, however, that (i) if the volume weighted average of the
closing price per share of Common Stock for the five trading days immediately preceding the date of the execution of the Securities Purchase
Agreement as reported by Bloomberg L.P. (the “5-day VWAP Price”) is greater than $4.49, then the purchase price shall
be an amount equal to the lesser of (A) the 5-day VWAP Price and (B) $7.12, or (ii) if the Company is conducting a concurrent placement
of shares of Common Stock, in which case the purchase price shall be calculated pursuant to this clause (ii) only, then the purchase price
shall be an amount equal to the lesser of (A) the same price per share of Common Stock paid by the investors in connection with such placement,
(B) if the 5-day VWAP Price is greater than $4.49, then the 5-day VWAP Price, and (C) $7.12 (the “Equity Financing”).”
Item 11. Additional Information.
The Offer to Purchase and Item 11 of the Schedule
TO, to the extent such Item 11 incorporates by reference the information contained in the Offer to Purchase, are hereby amended and supplemented
as follows:
The information set forth in Section 16 —
“Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase is hereby amended and supplemented as follows:
| 1. | The last paragraph of the subsection titled “Committee on Foreign Investment in the United States” is hereby amended and
supplemented by adding the following paragraph at the end thereof: |
“The Foreign Investment Condition
of the Offer with respect to CFIUS has not yet been satisfied. As a result, on December 20, 2022, Purchaser, Parent, and the Company entered
into Amendment No. 3 (“Amendment No. 3”) to the Merger Agreement, in order to: (i) include a Failure to Satisfy Offer
Termination withing the scope of the Equity Financing; and (ii) amend the Foreign Investment Condition of the Offer with respect to CFIUSs
to provide that it will be satisfied if: a declaration or notification has been made to or requested by CFIUS with respect to the transactions
contemplated by the Merger Agreement, (x) the CFIUS Action with respect to such declaration or notification has occurred or (y) the Parties
have not received notification of any actual or threatened commencement of any legal proceeding, issuance of any order, or taking of any
other action, by or on behalf of CFIUS that would seek to enjoin, prevent, restrain or otherwise prohibit the consummation of the transactions
contemplated by the Merger Agreement. Subject to satisfaction of the Foreign Investment Condition, as modified by Amendment No. 3, and
other customary closing conditions, the parties intend to proceed with closing and consummate the Merger on the business day immediately
following expiration of the Offer at one (1) minute past 11:59 p.m., Eastern Time, on December 28, 2022.”
Amendments to the Offer to Purchase and the Other Exhibits
to the Schedule TO.
Exhibits (a)(1)(a) through (a)(1)(e) to the
Schedule TO (and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items 1 through 9 and Item 11 incorporate by reference
the information contained in such Exhibits (a)(1)(a) through (a)(1)(e)) are hereby amended and supplemented as follows:
| 1. | All references regarding the scheduled expiration of the Offer being “5:00 p.m., Eastern Time, on December 23, 2022” set
forth in the Offer to Purchase, the Letter of Transmittal, Notice of Guaranteed Delivery, Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees, and Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
are hereby amended and replaced with “one (1) minute past 11:59 p.m., Eastern Time, on December 28, 2022”. |
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented to
add the following exhibit(s):
|
(d)(11) |
|
|
Amendment No. 3 to Agreement and Plan of Merger, dated December 20, 2022, among Parent, Purchaser and the Company.** |
|
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: December 20, 2022
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FENNEC ACQUISITION INCORPORATED |
|
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|
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By: |
/s/ Benjamin Toogood
|
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Name: |
Benjamin Toogood |
|
Title: |
Chief Executive Officer |
|
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INVOX PHARMA LIMITED |
|
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By: |
/s/ Benjamin Toogood
|
|
Name: |
Benjamin Toogood |
|
Title: |
Chief Executive Officer |
|
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SINO BIOPHARMACEUTICAL LIMITED |
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By: |
/s/ Benjamin Toogood
|
|
Name: |
Benjamin Toogood |
|
Title: |
Authorized Signatory |
EXHIBIT INDEX
Item 12. |
Exhibits. |
|
|
(a)(1)(a) |
Offer to Purchase, dated July 7, 2022.* |
|
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(a)(1)(b) |
Form of Letter of Transmittal.* |
|
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(a)(1)(c) |
Form of Notice of Guaranteed Delivery.* |
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(a)(1)(d) |
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
|
(a)(1)(e) |
Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* |
|
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(a)(1)(f) |
Summary Advertisement as published in The New York Times on July 7, 2022.* |
|
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(a)(1)(g) |
Power of Attorney for SBP, dated as of June 22, 2022.* |
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(a)(5)(a) |
Joint Press Release issued by Parent and the Company on June 23, 2022, attached as Exhibit (a)(5)(a) to the Form SC TO-C filed by Parent with the Securities and Exchange Commission on June 23, 2022 (incorporated herein by reference).* |
|
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(a)(5)(b) |
Announcement, published by SBP on the Hong Kong Stock Exchange on June 23, 2022, attached as Exhibit (a)(5)(b) to the Form SC TO-C filed by Parent with the Securities and Exchange Commission on June 23, 2022 (incorporated herein by reference).* |
(a)(5)(c) |
Press Release Announcing Commencement of Tender Offer issued by Parent on July 8, 2022.*
|
(a)(5)(d) |
Joint Press Release Announcing Extension of the Offer, issued by Parent, SBP and the Company on August 4, 2022.*
|
(d)(1) |
Agreement and Plan of Merger, dated June 22, 2022, among SBP, Parent, Purchaser and the Company, attached as Exhibit 2.1 to the Form 8-K filed by the Company with the Securities and Exchange Commission on June 23, 2022 (incorporated herein by reference).* |
|
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(d)(2) |
Form of Securities Purchase Agreement, by and among Purchaser, Parent, SBP and the Company.* |
|
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(d)(3) |
Form of Tender and Support Agreement, dated June 22, 2022, among Parent, Purchaser and the stockholders of the Company party thereto, attached as Exhibit 99.2 to the Form 8-K filed by the Company with the Securities and Exchange Commission on June 23, 2022 (incorporated herein by reference).* |
(d)(4) |
Confidentiality and Non-Disclosure Agreement, dated as of December 17, 2021, by and between SBP and the Company.* |
(d)(5) |
Transition Services Agreement and Settlement Agreement, dated as of June 22, 2022, by and among F-star Therapeutics Limited, Parent and Eliot Forster.* |
(d)(6) |
Amendment to Employment Agreement, dated as of June 22, 2022, by and among F-star Therapeutics Limited, Parent and Neil Brewis.*
|
(d)(7) |
Letter Agreement, dated July 25, 2022, by and between Parent and Darlene Deptula-Hicks.*
|
(d)(8) |
Letter Agreement, dated July 25, 2022, by and between Parent and Louis Kayitalire.* |
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(d)(9) |
Amendment No. 1 to Agreement and Plan of Merger, dated November 20, 2022, among Parent, Purchaser and the Company, attached as Exhibit 2.1 to the Form 8-K filed by the Company with the Securities and Exchange Commission on November 21, 2022 (incorporated herein by reference).* |
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(d)(10) |
Amendment No. 2 to Agreement and Plan of Merger, dated December 19, 2022, among Parent, Purchaser and the Company.* |
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(d)(11) |
Amendment No. 3 to Agreement and Plan of Merger, dated December 20, 2022, among Parent, Purchaser and the Company.** |
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(g) |
Not applicable. |
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(h) |
Not applicable. |
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107 |
Filing Fee Table.* |
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____________________
*Previously filed.
**Filed herewith.
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