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. 9)
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:
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Jenny
Hochenberg
Freshfields Bruckhaus Deringer US LLP
601 Lexington Ave.
New York, NY 10022
Telephone: +1 646 863-1626 |
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Doug
Smith
Freshfields Bruckhaus Deringer LLP
100 Bishopsgate
London EC2P 2SR
United Kingdom
+44 20 7936 4000 |
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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. 9
(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 May 8, 2024, the
Bidder published an announcement in the German Federal Gazette (the “Announcement”) announcing that 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 3,683,015 MorphoSys
Shares, representing approximately 9.77% of the share capital and the voting rights as of May 8, 2024, and the acceptance of the
offer has been declared in accordance with Secs. 13.3.2 and 13.3.3 of the offer document for 440 MorphoSys Shares, representing approximately
0.0012% of the share capital and the voting rights as of May 8, 2024, effective after the end of the acceptance period. As of May 8,
2024, the Bidder held a total of 4,360,100 MorphoSys Shares, representing approximately 11.56% of the share capital and the voting rights.
Therefore, as of May 8, 2024, the total number of MorphoSys Shares, for which the takeover offer has been accepted, plus the MorphoSys
Shares held by the Bidder, amounts to 8,043,555 MorphoSys Shares, representing approximately 21.33% of the share capital and the voting
rights and approximately 21.36% of all MorphoSys Shares existing, excluding treasury shares held by MorphoSys. An English translation
of the Announcement is filed hereto as Exhibit (a)(5)(P) 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: May 8, 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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|
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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 |
Exhibit (a)(5)(P)
– Convenience Translation –
(Only the German version is legally binding)
Novartis BidCo
AG
Announcement pursuant to Sec. 23 para. 1 sentence
1 no. 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.
| 1. | As of 8 May 2024, 14:00 hours (local time Frankfurt am Main, Germany) and 8:00 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 3,683,015 MorphoSys Shares. This corresponds to approx.
9.77 % of the share capital and the voting rights. |
| 2. | As of the Reference Date, the acceptance of the offer has been declared in accordance with Secs. 13.3.2
and 13.3.3 of the offer document for 440 MorphoSys Shares, but only becomes effective after the end of the acceptance period by re-booking
the MorphoSys Shares to ISIN DE000A4BGGU0. This corresponds to approx. 0.0012 % of the share capital and the voting rights. |
| 3. | As of the Reference Date, the Bidder held a total of 4,360,100 MorphoSys Shares. This corresponds to approx.
11.56 % of the share capital and the voting rights. |
| 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. and 2.), plus the MorphoSys Shares held by the Bidder as of the Reference Date (see above 3.) amounts
to 8,043,555 MorphoSys Shares. This corresponds to approx. 21.33 % of the share capital and the voting rights and approximately
21.36 % of all MorphoSys Shares existing as of the Reference Date, with the exception of treasury shares held by MorphoSys as of
the Reference Date. |
| 6. | As of the Reference Date, the number of MorphoSys Shares relevant for the minimum acceptance threshold
pursuant to Sec. 12.1.1 of the offer document amounted to 8,043,555 MorphoSys Shares. This corresponds to approx. 21.36 %
of the share capital and voting rights (less the treasury shares of MorphoSys). |
Basel, 8 May 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: 8 May 2024.
Basel, 8 May 2024
Novartis BidCo AG
Board of Directors
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