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. 1)
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. 1 (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”). This Amendment amends and supplements the Tender Offer Statement on Schedule TO filed with the U.S. Securities and Exchange Commission (the “SEC”) on April 11, 2024 (together with any amendments and supplements thereto, the “Schedule TO”) by 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 April 15, 2024, the Bidder issued a notification of major holdings and published an announcement in the German Federal Gazette (the “Announcement”), each announcing that the Bidder acquired 2,023,370 MorphoSys Shares on the stock exchange, representing 5.37% of all MorphoSys Shares, other than treasury shares, on April 12, 2024. The highest price paid was EUR 67.95 per MorphoSys Share. The transfer of the 2,023,370 MorphoSys Shares to the Bidder is expected to take place within the next few days. The notification of major holdings, as well as an English translation of the Announcement is filed hereto as Exhibits (a)(5)(F) and (a)(5)(G), respectively, and is incorporated herein by reference.
ITEM 12. EXHIBITS.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following:
2
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: April 15, 2024
| NOVARTIS BIDCO AG | |||
| By: | /s/ David Quartner | ||
| Name: | David Quartner | ||
| Title: | As Attorney | ||
| By: | /s/ Lukas Gilgen | ||
| Name: | Lukas Gilgen | ||
| Title: | As Attorney | ||
|
NOVARTIS AG | |||
| By: | /s/ David Quartner | ||
| Name: | David Quartner | ||
| Title: | As Attorney | ||
| By: | /s/ Lukas Gilgen | ||
| Name: | Lukas Gilgen | ||
| Title: | As Attorney | ||
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Exhibit (a)(5)(F)
Notification of Major Holdings
x Notification of Major Holdings
or
¨ Correction of a notification of Major Holdings dated
|
| 1. Details of issuer | ||
Name: MorphoSys AG |
Legal Entity Identifier (LEI): 529900493806K77LRE72 | |
Street, Street number: Semmelweisstrasse 7 |
Postal code: 82152 |
City: Planegg |
|
2. Reason for notification (multiple reasons possible)
x Acquisition/disposal of shares with voting rights
¨ Acquisition/disposal of instruments
¨ Change of breakdown of voting rights
¨ Other reason:
|
| 3. Details of person subject to the notification obligation | |
|
Natural person (first name, surname):
Date of birth:
|
Legal entity:
Novartis AG
City of registered office, country:
Lichtstrasse 35, 4056 Basel, Switzerland
|
4. Name(s) of shareholder(s) holding directly 3% or more voting rights, if different from 3.
Novartis BidCo AG |
| 5. Date on which threshold was crossed or reached: 12/04/2024 |
| 6. Total positions | ||||
| %
of voting rights attached to shares (total of 7.a.) |
%
of voting rights through instruments (total of 7.b.1. + 7.b.2.) |
Total
of both in % (7.a. + 7.b.) |
Total
number of voting rights pursuant to Sec. 41 WpHG | |
| New | 5.36% | 0.00% | 5.36% | 37,716,423 |
Previous notification |
n/a | n/a | n/a | |
7. Details on total positions | ||||
| a. Voting rights attached to shares (Sec. 33, 34 WpHG) | ||||
| ISIN | Absolute | In % | ||
Direct (Sec. 33 WpHG) |
Indirect (Sec. 34 WpHG) |
Direct (Sec. 33 WpHG) |
Indirect (Sec. 34 WpHG) | |
| DE0006632003 | 0 | 2,023,370 | 0.00% | 5.36% |
| % | % | |||
| Total | 2,023,370 | 5.36% | ||
b.1. Instruments according to Sec. 38 (1) no. 1 WpHG
(please use annex in case of more than 3 instruments)
| ||||
| Type of instrument | Expiration
or maturity date |
Exercise
or conversion period |
Voting
rights absolute |
Voting
rights in % |
| 0 | 0.00% | |||
| Total | 0 | 0.00% | ||
b.2. Instruments according to Sec. 38 (1) no. 2 WpHG
(please use annex in case of more than 3 instruments)
| |||||
| Type of instrument | Expiration
or maturity date |
Exercise
or conversion period |
Cash
or physical settlement |
Voting
rights absolute |
Voting
rights in % |
| 0 | 0.00% | ||||
| Total | 0 | 0.00% | |||
8. Information in relation to the person subject to the notification obligation (please tick the applicable box):
¨ Person subject to the notification (3.) obligation is not controlled nor does it control any other undertaking(s) holding directly or indirectly an interest in the (underlying) issuer (1.).
x Full chain of controlled undertakings starting with the ultimate controlling natural person or legal entity (in case of more than four undertakings please always provide only to BaFin also an organizational chart):
| |||
| Name | %
of voting rights |
%
of voting rights through |
Total
of both |
| Novartis AG | |||
| Novartis Pharma AG | |||
| Novartis BidCo AG | 5.36% | 5.36% | |
9. In case of proxy voting according to Sec. 34 (3) WpHG
(only in case of attribution of voting rights in accordance with Sec. 34 (1) sent. 1 no. 6 WpHG)
Date of general meeting:
Total positions (6.) after general meeting:
| ||
| %
of voting rights attached to shares |
%
of voting rights through instruments |
Total of both |
10. Other useful information
|
| Date, | Signature | |
| 15/04/2024 | Timo Piller |
Exhibit (a)(5)(G)
– Convenience Translation –
(Only the German version is legally binding)
Novartis BidCo AG
Announcement pursuant to Section 23 para. 2 sentence 1 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 will expire 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), unless it is extended pursuant to the applicable rules under the WpÜG.
As of 12 April 2024 (“Reference Date”), i.e. after the publication of the offer document and prior to the publication pursuant to section 23 para. 1 sentence 1 no. 2 WpÜG, the Bidder acquired 2,023,370 MorphoSys Shares on the stock exchange. The highest price paid was EUR 67.95 per MorphoSys Share. The transfer of the 2,023,370 MorphoSys Shares to the Bidder is expected to take place within the next few days.
The aggregate number of MorphoSys Shares for which purchase agreements were entered into on the Reference Date represents approx. 5.36 % of all MorphoSys Shares in existence on the Reference Date and approx. 5.37 % of all MorphoSys Shares in existence, other than treasury shares held by MorphoSys, on the Reference Date.
Basel, 15 April 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.
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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 English version of the offer document, which has not been reviewed or approved by BaFin, is also available on the internet at www.novartis.com/investors/morphosys-acquisition. The English version of the offer document and related offer materials have been published with the SEC in a Tender Offer Statement on Schedule TO. MorphoSys AG has also filed a solicitation/recommendation statement on Schedule 14D-9 with the SEC with respect to the takeover offer. Those materials and other documents filed by Novartis BidCo AG, Novartis AG or MorphoSys AG with the SEC are available at no charge on the SEC’s website at www.sec.gov.
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.
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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: 15 April 2024.
Basel, 15 April 2024
Novartis BidCo AG
Board of Directors
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