FSTX F star Therapeutics Inc

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

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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. 11)

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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

 

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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:

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third-party tender offer subject to Rule 14d-1.

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issuer tender offer subject to Rule 13e-4.

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going-private transaction subject to Rule 13e-3.

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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:

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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)

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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)

 

This Amendment No. 11 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:

“As previously disclosed, on December 20, 2022, Purchaser, Parent, and the Company entered into Amendment No. 3 to the Merger Agreement, in order to, among other things, 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.

On the evening of December 28, 2022, and prior to the then-scheduled Expiration Date, CFIUS notified Parent that if the Parties intended to proceed with the closing of the transactions contemplated by the Merger Agreement without having resolved CFIUS’s identified national security risks, CFIUS would take action to restrict the Parties from consummating the transactions contemplated by the Merger Agreement. Shortly thereafter, CFIUS delivered to the Parties an Interim Order preventing the Parties from consummating the transactions contemplated by the Merger Agreement pending conclusion of CFIUS’s review of the transaction, action by the President or revocation of the Interim Order. The Interim Order is intended to provide CFIUS the opportunity to continue its review and investigation. As a result, the Foreign Investment Condition of the Offer with respect to CFIUS has not been satisfied.

On December 29, 2022, Purchaser, Parent and SBP extended the Offer to 5:00 p.m., Eastern Time, on December 30, 2022, unless further extended, to provide Purchaser, Parent and SBP an opportunity to discuss with the Company an extension of the End Date to January 29, 2023, the last day of CFIUS’s 45-calendar day review period, and any conditions on which Purchaser, Parent and SBP would be willing to agree to such extension. The Offer was previously set to expire at one (1) minute past 11:59 p.m., Eastern Time, on December 28, 2022. The Depositary has advised Purchaser, Parent, and SBP that, as of one (1) minute past 11:59 p.m., Eastern Time, on December 28, 2022, 16,709,745 Shares had been validly tendered into and not properly withdrawn from the Offer, representing approximately 75.99% of the outstanding Shares, and an additional approximately 1,488,292 Shares tendered pursuant to a notice of guaranteed delivery. Unless extended, the End Date will remain one (1) minute past 11:59 p.m., Eastern Time, on December 30, 2022.”

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:

“On the evening of December 28, 2022, and prior to the then-scheduled Expiration Date, CFIUS notified Parent that if the Parties intended to proceed with the closing of the transactions contemplated by the Merger Agreement without having resolved CFIUS’s identified national security risks, CFIUS would take action to restrict the Parties from consummating the transactions contemplated by the Merger Agreement. Shortly thereafter, CFIUS delivered to the Parties an Interim Order preventing the Parties from consummating the transactions contemplated by the Merger Agreement pending conclusion of CFIUS’s review of the transaction, action by the President or revocation of the Interim Order. The Interim Order is intended to provide CFIUS the opportunity to continue its review and investigation. As a result, the Foreign Investment Condition of the Offer with respect to CFIUS has not been satisfied.”

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:

All references regarding the scheduled expiration of the Offer being “one (1) minute past 11:59 p.m., Eastern Time, on December 28, 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 “5:00 p.m., Eastern Time, on December 30, 2022”.

 

 

 

 

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 29, 2022

 

	FENNEC ACQUISITION INCORPORATED
	By:	/s/ Benjamin Toogood
	Name:	Benjamin Toogood
	Title:	Chief Executive Officer
	INVOX PHARMA LIMITED
	By:	/s/ Benjamin Toogood
	Name:	Benjamin Toogood
	Title:	Chief Executive Officer
	SINO BIOPHARMACEUTICAL LIMITED
	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.*
(a)(1)(b)	Form of Letter of Transmittal.*
(a)(1)(c)	Form of Notice of Guaranteed Delivery.*
(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.*
(a)(1)(f)	Summary Advertisement as published in The New York Times on July 7, 2022.*
(a)(1)(g)	Power of Attorney for SBP, dated as of June 22, 2022.*
(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).*
(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).*
(d)(2)	Form of Securities Purchase Agreement, by and among Purchaser, Parent, SBP and the Company.*
(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.*
(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).*
(d)(10)	Amendment No. 2 to Agreement and Plan of Merger, dated December 19, 2022, among Parent, Purchaser and the Company.*

 

(d)(11)	Amendment No. 3 to Agreement and Plan of Merger, dated December 20, 2022, among Parent, Purchaser and the Company.*
(g)	Not applicable.
(h)	Not applicable.
107	Filing Fee Table.*
____________________   *Previously filed. **Filed herewith.