UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1)
or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 14)
MORPHOSYS AG
(Name of Subject Company (Issuer))
NOVARTIS BIDCO AG
an indirect wholly owned subsidiary of
NOVARTIS AG
(Name of Filing Persons (Offerors))
Ordinary Shares, no Par Value
(Title of Class of Securities)
617760202
(CUSIP Number of Class of Securities)
Karen L. Hale
Chief Legal Officer
Novartis AG
Lichstrasse 35
CH-4056 Basel
Switzerland
Telephone: +41-61-324-1111
Fax: +41-61-324-7826
(Name, Address, and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
With a copy to:
Jenny Hochenberg
Freshfields Bruckhaus Deringer US LLP
601 Lexington Ave.
New York, NY 10022
Telephone: +1 646 863-1626 |
Doug Smith
Freshfields Bruckhaus Deringer LLP
100 Bishopsgate
London EC2P 2SR
United Kingdom
+44 20 7936 4000 |
Check the appropriate boxes below to designate any transactions to
which the statement relates:
| x | 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. 14 (this
“Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange
Commission (the “SEC”) on April 11, 2024 (together with any amendments and supplements hereto, the “Schedule
TO”) by Novartis AG, a stock corporation organized under the Laws of Switzerland (“Novartis”) and Novartis
BidCo AG, a stock corporation organized under the Laws of Switzerland and an indirect wholly owned subsidiary of Novartis AG (the “Bidder”
and, together with the Novartis, the “Filing Persons”). The Schedule TO relates to the voluntary takeover offer
(the “Takeover Offer”) by the Bidder to purchase all no-par value registered shares (the “MorphoSys Shares”)
in MorphoSys AG (“MorphoSys”), including the MorphoSys Shares represented by American Depositary Shares (“MorphoSys
ADSs”), pursuant to a Business Combination Agreement, dated as of February 5, 2024, among MorphoSys and the Filing Persons.
The terms and conditions of the Takeover Offer are described in the Offer Document, dated as of April 11, 2024, copy of which was filed
as Exhibit (a)(1)(A) to the Schedule TO (the “Offer Document”), and, where applicable, the related Declaration of Acceptance
or ADS Letter of Transmittal and the instructions thereto, copies of which were filed as Exhibits (a)(1)(B) and (a)(1)(E), respectively,
to the Schedule TO.
This Amendment is being filed
solely to amend and supplement items to the extent specifically provided herein. Except as otherwise set forth in this Amendment,
the information set forth in the Schedule TO, including all exhibits thereto, remains unchanged and is incorporated herein by reference
to the extent relevant to the items in this Amendment. This Amendment should be read together with the Schedule TO.
ITEMS 1 THROUGH 11.
Items 1 through 11 of the
Schedule TO are hereby amended and supplemented by adding the following:
On June 4, 2024, the Bidder
published an announcement in the German Federal Gazette (the “Announcement”) announcing that, until the expiry of the
additional acceptance period on May 30, 2024, at 24:00 hours (local time Frankfurt am Main, Germany) / 18:00 hours (local time New York,
United States of America), the acceptance of the takeover offer has been validly declared in accordance with Sec. 13.1.2 of the offer
document for a total of 29,336,378 MorphoSys Shares, representing approximately 77.78% of the share capital and voting rights as of May
30, 2024. Of these shares, 25,610,813 MorphoSys Shares were tendered during the acceptance period and 3,725,565 MorphoSys Shares were
tendered during the additional acceptance period, representing approximately 67.90% and 9.88%, respectively, of the share capital and
voting rights. As of May 30, 2024, the Bidder held a total of 29,970,913 MorphoSys Shares (including the 25,610,813 MorphoSys Shares tendered
during the acceptance period which the Bidder acquired on May 23, 2024, in the first closing of the takeover offer), representing approximately
79.46% of the share capital and voting rights. In addition, as of May 30, 2024, MorphoSys, a subsidiary of the Bidder, directly held a
total of 53,685 MorphoSys Shares, representing approximately 0.14% of the share capital and voting rights. Therefore, as of May 30, 2024,
the total number of MorphoSys Shares, for which the takeover offer has been accepted, plus the MorphoSys Shares held by the Bidder (but
excluding the MorphoSys Shares for which the takeover offer was accepted in the acceptance period and which the Bidder already acquired
on May 23, 2024 in the first closing of the takeover offer), plus the MorphoSys Shares held by MorphoSys as treasury shares, amounts
to 33,750,163 MorphoSys Shares, representing approximately 89.48% of the share capital and voting rights. Excluding the treasury
shares held by MorphoSys, the Bidder holds approximately 89.47% of the share capital with voting rights.
As described in Secs. 13.1.7
and 13.3.6 of the offer document, the offer consideration for the MorphoSys Shares that have been tendered into the offer during the additional
acceptance period in accordance with Secs. 13.1 and 13.2 of the offer document will be transferred through Clearstream Banking AG to the
relevant custodian investment service provider without undue delay, but no later than on June 10, 2024. With respect to the MorphoSys
Shares represented by MorphoSys ADSs properly tendered for sale during the additional acceptance period in accordance with Sec. 13.3 of
the offer document and not validly withdrawn, the offer consideration will be paid to the ADS tender agent’s cash account in Germany
via Clearstream Banking AG without undue delay, however no later than on June 10, 2024.
An English translation of
the Announcement is filed hereto as Exhibit (a)(5)(U) and is incorporated herein by reference.
ITEM 12. EXHIBITS.
Item 12 of the Schedule TO
is hereby amended and supplemented by adding the following:
SIGNATURES
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: June 4, 2024
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NOVARTIS BIDCO AG |
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By: |
/s/ David Quartner |
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Name: |
David Quartner |
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Title: |
As
Attorney |
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By: |
/s/ Lukas Gilgen |
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Name: |
Lukas Gilgen |
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Title: |
As
Attorney |
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NOVARTIS AG |
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By: |
/s/ David Quartner |
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Name: |
David Quartner |
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Title: |
As
Attorney |
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|
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By: |
/s/ Lukas Gilgen |
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Name: |
Lukas Gilgen |
| |
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Title: |
As Attorney |
Exhibit (a)(5)(U)
– Convenience
Translation –
(Only the German
version is legally binding)
Novartis BidCo
AG
Announcement
pursuant to Sec. 23 para. 1 sentence 1 no. 3 of the German Securities
Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz
– “WpÜG”)
NOT FOR RELEASE,
PUBLICATION OR DISTRIBUTION (IN WHOLE OR IN PART) IN ANY OTHER JURISDICTION OR INTO OR FROM ANY OTHER JURISDICTION WHERE TO DO SO WOULD
VIOLATE THE LAWS OF SUCH JURISDICTION.
On 11 April 2024,
Novartis BidCo, Basel, Switzerland, (“Bidder”) has published the offer document regarding its takeover offer (cash
offer) to the shareholders of MorphoSys AG, Planegg, Germany (“MorphoSys”) for the acquisition of all no-par value
bearer shares (ISIN DE0006632003) (“MorphoSys Shares”)
including all no-par value bearer shares represented by American Depositary Shares (ISIN US6177602025) (“MorphoSys ADS”)
in MorphoSys against payment of a cash consideration in the amount of EUR 68.00 per MorphoSys Share. The acceptance period of the offer
expired on 13 May 2024, 24:00 hours (local time Frankfurt am Main, Germany) and 18:00 hours (local time New York, United States
of America). The additional acceptance period pursuant to Section 16 para. 2 sent. 1 WpÜG expired on 30 May
2024, 24:00 hours (local time Frankfurt am Main, Germany) / 18:00 hours (local time New York, United States of America).
I. Announcement pursuant to Sec. 23 para. 1 sentence 1 no. 3 WpÜG
| 1. | Until the
expiry of the additional acceptance period on 30 May 2024, 24:00 hours (local time Frankfurt
am Main, Germany) / 18:00 hours (local time New York, United States of America) (“Reference
Date”), the acceptance of the takeover offer has been validly declared in accordance
with Sec. 13.1.2 of the offer document for a total of 29,336,378 MorphoSys Shares. This
corresponds to approx. 77.78 % of the share capital and the voting rights. Of these
shares, 25,610,813 MorphoSys Shares were tendered during the acceptance period and 3,725,565 MorphoSys
Shares were tendered during the additional acceptance period. This corresponds to approx.
67.90 % and 9.88 %, respectively, of the share capital and voting rights. |
| 2. | As of the
Reference Date, the Bidder held a total of 29,970,913 MorphoSys Shares. This corresponds
to approx. 79.46 % of the share capital and the voting rights. This includes the 25,610,813 MorphoSys
Shares tendered during the acceptance period which the Bidder acquired on 23 May 2024
in the first closing of the takeover offer. |
| 3. | As of the
Reference Date, MorphoSys, a subsidiary of the Bidder, directly held a total of 53,685 MorphoSys
Shares. This corresponds to approx. 0.14 % of the share capital and voting rights existing
as of the Reference Date according to information provided by MorphoSys. MorphoSys is not
entitled to any rights from these shares (Section 71b AktG). |
| 4. | Apart
from this, as of the Reference Date, neither the Bidder nor persons acting jointly with the
Bidder within the meaning of Sec. 2 para. 5 WpÜG nor their subsidiaries held
MorphoSys Shares and no further voting rights based on MorphoSys Shares were attributable
to them pursuant to Sec. 30 WpÜG. Furthermore, as of the Reference Date, neither
the Bidder nor persons acting jointly with the Bidder within the meaning of Sec. 2 para. 5
WpÜG nor their subsidiaries
directly or indirectly held further instruments relating to voting rights in relation to MorphoSys to be disclosed pursuant to Secs. 38
and 39 of the German Securities Trading Act (Wertpapierhandelsgesetz – “WpHG”). |
| 5. | Therefore,
the total number of MorphoSys Shares, for which the takeover offer has been accepted as of
the Reference Date (see above 1.), plus the MorphoSys Shares held by the Bidder as of the
Reference Date (but excluding the MorphoSys Shares for which the takeover offer was accepted
in the acceptance period and which the Bidder already acquired on 23 May 2024 in
the first closing of the takeover offer, see above 2.), plus MorphoSys Shares held by MorphoSys
as treasury shares as of the Reference Date (see above 3.) the amounts to 33,750,163 MorphoSys
Shares. This corresponds to approx. 89.48 % of the share capital. Excluding the
treasury shares held by MorphoSys, from which MorphoSys is not entitled to any rights, the
Bidder holds approx. 89.47 % of the share capital with voting rights. |
II. Settlement of the offer
As described in
more detail in Sec. 13.1.7 of the offer document, the offer consideration for the MorphoSys Shares that have been tendered into
the offer during the additional acceptance period in accordance with Sec. 13.1. and Sec. 13.2 of the offer document will be transferred
through Clearstream Banking AG, Frankfurt am Main, Germany (“Clearstream”) to the relevant custodian investment service
provider (“Custodian Bank”) without undue delay, but no later than on 10 June 2024. It is the responsibility
of the Custodian Banks to credit the offer consideration to the relevant holder of MorphoSys Shares without undue delay.
As described in
more detail in Sec. 13.3.6 of the offer document, with respect to the MorphoSys Shares represented by MorphoSys ADSs properly tendered
for sale during the additional acceptance period in accordance with Sec. 13.3 of the offer document and not validly withdrawn, the offer
consideration will be paid to the ADS tender agent’s cash account in Germany via Clearstream without undue delay, however no later
than on 10 June 2024. It is the ADS tender agent’s responsibility to transfer the offer consideration, after deduction
of all applicable costs or withholding taxes, to the holder of MorphoSys ADSs without undue delay.
Basel, 4 June
2024
Novartis BidCo
AG
Board of Directors
Important notice:
This announcement
is neither an offer to purchase nor a solicitation of an offer to sell shares in MorphoSys AG (“MorphoSys”). The terms
and conditions of the takeover offer, as well as further provisions concerning the takeover offer, are published in the offer document,
the publication of which has been permitted by the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht).
Holders of MorphoSys Shares and MorphoSys ADSs (together “MorphoSys Securityholders”) are strongly advised to read
the offer document and all other documents regarding the takeover offer, as they contain important information.
The offer
relates to shares in a German company and is subject to the statutory provisions of the Federal Republic of Germany governing the
conduct of such an offer. For this reason, the offer will be carried out in accordance with the German Securities Acquisition
and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz) (“WpÜG”) and the Regulation on the
Content of the Offer Document, the Consideration to be granted in Takeover Offers and Mandatory Offers and the Exemption from the
Obligation to Publish and Launch an Offer (Verordnung über den Inhalt der Angebotsunterlage, die Gegenleistung bei
Übernahmeangeboten und Pflichtangeboten und die Befreiung von der Verpflichtung zur Veröffentlichung und zur Abgabe eines
Angebots – WpÜG-Angebotsverordnung) (“WpÜG Offer Regulation”).
Furthermore, the
offer is carried out in accordance with the securities laws of the United States of America (“United States”), including
the provisions applicable to tender offers of the U.S. Securities Exchange Act of 1934, as amended (“U.S. Exchange Act”)
and the rules and regulations promulgated thereunder. In order to reconcile certain areas where German law and U.S. law conflict, Novartis
BidCo AG (“Bidder”) applied for exemptive or no-action relief from the U.S. Securities and Exchange Commission (“SEC”)
prior to the publication of the offer document, which was granted on 9 April 2024 (in total the “U.S. Offer Rules”).
Against this background, the Bidder is exempt from compliance with certain provisions of the U.S. Exchange Act for tender offers. As
a result, the offer is principally subject to disclosure requirements and other procedural requirements (e.g. with respect to settlement,
withdrawal rights and acceptance periods) of the Federal Republic of Germany, which differ not insignificantly from the corresponding
U.S. laws.
The Bidder and
its affiliates within the meaning of US law (“Affiliates”) or brokers (acting as agents of the Bidder or its Affiliates)
may acquire, or make arrangements to acquire, MorphoSys Shares other than in the course of the offer, via the stock exchange at market
prices or outside the stock exchange on negotiated terms during the period in which the offer remains open for acceptance or afterwards,
provided that (i) such acquisitions or arrangements to acquire (if made during the pendency of the offer) are made outside of the United
States; and (ii) such acquisitions or arrangements to acquire comply with the applicable statutory provisions, in particular the WpÜG
and, to the extent applicable, the U.S. Offer Rules. This also applies to other securities convertible into, exchangeable for or exercisable
for shares of MorphoSys. The Offer Price must be adjusted to any higher purchase price or an additional payment claim in respect of tendered
MorphoSys Shares arises in the amount of the difference between the offer price and the higher purchase price paid outside the offer.
To the extent such acquisitions should occur, information about them, including the number and price of the acquired MorphoSys Shares,
will be published according to the applicable statutory provisions, especially Sec. 23 para. 2 WpÜG in conjunction with Sec. 14
para. 3 sentence 1 WpÜG, in the German Federal Gazette (Bundesanzeiger) and on the internet at www.novartis.com/investors/morphosys-acquisition.
In addition, the financial advisors of the Bidder may also act in the ordinary course of trading in securities of MorphoSys, which may
include purchases or agreements to purchase such securities.
MorphoSys Securityholders
who are residing in the United States, or another country outside of the Federal Republic of Germany, may have difficulties to enforce
rights and claims arising under (i) the laws of the country of residency or (ii) U.S. federal securities laws (e.g., because
MorphoSys is incorporated in the Federal Republic of Germany, the Bidder is incorporated in Switzerland and some or all of the Bidder’s
officers and directors may be residents of a country other than the country of residency of the MorphoSys Securityholders). A MorphoSys
Securityholder may not be able to sue, in a court in the country of residency, a foreign company or its officers or directors for violations
of the laws of the country of residency. Further, it may be difficult to compel a foreign company and its Affiliates to subject themselves
to a judgment of a court of the country of residency.
The receipt of
the offer price pursuant to the offer may be a taxable transaction under applicable tax laws, including those of the country of residence.
It is strongly recommended to consult an independent professional advisor immediately regarding the tax consequences of acceptance of
the offer. None of the Bidder, any persons acting jointly with the Bidder within the meaning of Sec. 2 para. 5 sentence 1 and sentence 3
WpÜG or any of the Bidder’s or their directors, officers or employees accept responsibility for any tax effects on or liabilities
of any person as a result of the acceptance of the offer.
This publication
is available on the internet at: www.novartis.com/investors/morphosys-acquisition on: 4 June 2024.
Basel, 4 June
2024
Novartis BidCo
AG
Board of Directors
Grafico Azioni Novartis Ag Basel Namen ... (PK) (USOTC:NVSEF)
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Da Ott 2024 a Nov 2024
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