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. 2)
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:
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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:
¨ Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
¨Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
This Amendment No. 2 (this
“Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange
Commission (the “SEC”) on July 5, 2024 (together with any amendments and supplements hereto, the “Schedule
TO”) by (i) Novartis BidCo AG, a stock corporation organized under the laws of Switzerland (the “Bidder”)
and an indirect wholly owned subsidiary of Novartis AG, a company organized under the laws of Switzerland (“Novartis”),
and (ii) Novartis. This Schedule TO relates to the public delisting purchase offer by the Bidder for all no-par value bearer
shares (including the shares represented by American Depository Shares), not directly held by Novartis BidCo Germany AG, in MorphoSys
AG (“MorphoSys Shares”), a stock corporation established under the laws of Germany (“MorphoSys”),
at an offer price of EUR 68.00 per MorphoSys Share in cash, pursuant to the final terms and provisions set forth in the offer document
for the delisting purchase offer, dated July 4, 2024, a copy of which was filed as Exhibit (a)(1)(A) to the Schedule TO (together
with any amendments or supplements thereto, 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 (together with any other related materials, as each may be amended or supplemented from time to time,
collectively constitute the “Delisting Purchase Offer”).
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 July 18, 2024, the Bidder
published an announcement in the German Federal Gazette (the “Announcement”) announcing that the acceptance of the
Delisting Purchase Offer has been validly declared in accordance with Sec. 13.1.2 of the offer document for a total of 64,257 MorphoSys
Shares, representing approximately 0.017% of the share capital and the voting share capital as of July 18, 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 250 MorphoSys Shares represented by MorphoSys
ADSs, representing approximately 0.001% of the share capital and the voting share capital as of July 18, 2024, effective after the end
of the acceptance period. As of July 18, 2024, Novartis BidCo Germany Ag, Munich, Germany, a subsidiary of the Bidder and a person acting
jointly with the Bidder pursuant to Sec. 2 para. 5 sentence 3 WpÜG, held a total of 34,337,809 MorphoSys Shares, representing approximately
91.04% of the share capital and 91.17% of the voting share capital. As of July 18, 2024, MorphoSys, a subsidiary of the Bidder and a person
acting jointly with the Bidder pursuant to Sec. 2 para. 5 sentence 3 WpÜG held 53,685 MorphoSys Shares. This corresponds to approximately
0.14% of the share capital and the voting share capital. The treasury MorphoSys Shares do not grant voting rights.
Therefore, as of July 18,
2024, the total number of MorphoSys Shares, for which the Delisting Purchase Offer has been accepted, plus the MorphoSys Shares held indirectly
by the Bidder, amounts to 34,456,001 MorphoSys Shares, representing approximately 91.36% of the share capital and approximately 91.49%
of the voting share capital of MorphoSys.
An English translation of
the Announcement is filed hereto as Exhibit (a)(5)(E) 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: July 18, 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/ Tariq Elrafie |
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Name: |
Tariq Elrafie |
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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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By: |
/s/ Tariq Elrafie |
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Name: |
Tariq Elrafie |
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Title: |
As Attorney |
Exhibit (a)(5)(E)
– 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”)
in conjunction with Sec. 39 para. 2 sentence 3 no. 1 of the German Stock Exchange Act (Börsengesetz – “BörsG”)
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 4 July 2024, Novartis BidCo, Basel, Switzerland
(“Bidder”), has published the offer document regarding its public delisting purchase 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 delisting purchase
offer will expire on 2 August 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 18 July 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 delisting purchase offer has been validly
declared in accordance with Sec. 13.1.2 of the offer document for a total of 64,257 MorphoSys Shares. This corresponds to approx.
0.17 % of the share capital and approx. 0.17 % of the voting share capital of MorphoSys. |
| 2. | As of the Reference Date, the acceptance of the delisting purchase offer has been declared in accordance
with Secs. 13.2.2 and 13.2.3 of the offer document for 250 MorphoSys Shares represented by MorphoSys ADS, but only becomes effective after
the end of the acceptance period by designating the underlying MorphoSys Shares as tendered MorphoSys Shares. This corresponds to approx.
0.001 % of the share capital and approx. 0.001 % of the voting share capital of MorphoSys. |
| 3. | As of the Reference Date, the Bidder directly held no MorphoSys Shares. |
| 4. | As of the Reference Date, Novartis BidCo Germany AG, Munich, Germany (“Novartis BidCo Germany”),
a subsidiary of the Bidder and a person acting jointly with the Bidder pursuant to Sec. 2 para. 5 sentence 3 WpÜG
held 34,337,809 MorphoSys Shares. This corresponds to approx. 91.04 % of the share capital and 91.17 % of the voting share capital.
The voting rights of Novartis BidCo Germany are attributable to the Bidder and to the Bidder Parent Companies (as defined under Sec. 6.5
of the offer document) pursuant to Sec. 30 para. 1 sentence 1 no. 1 and sentence 3 WpÜG. |
| 5. | As of the Reference Date, MorphoSys, a subsidiary of the Bidder and a person acting jointly with the Bidder
pursuant to Sec. 2 para. 5 sentence 3 WpÜG held 53,685 MorphoSys Shares. This corresponds to approx. 0.14 % of
the share capital and the voting share capital. The treasury MorphoSys Shares do not grant voting rights. |
| 6. | 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”). |
| 7. | Therefore, the total number of MorphoSys Shares, for which the delisting purchase offer has been accepted
as of the Reference Date (see above 1. and 2.), plus the MorphoSys Shares indirectly held by the Bidder as of the Reference Date (see
above 4. and 5.) amounts to 34,456,001 MorphoSys Shares. This corresponds to approx. 91.36 % of the share capital and approx. 91.49
% of the voting share capital of MorphoSys. |
Basel, 18 July 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. The terms of the delisting purchase offer, as well as further provisions concerning
the delisting purchase 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
delisting purchase 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 WpÜG, BörsG 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”, and together with the WpÜG and the BörsG, the “German Offer and Delisting Rules”).
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, the 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 3 July 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. As a result, the delisting purchase 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 German Offer and Delisting Regulations 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, as necessary, to match any consideration paid for any acquisition by the Bidder
or any of its Affiliates of MorphoSys Shares during the pendency of the delisting purchase offer outside the delisting purchase offer
if higher than the offer price. 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/delisting-purchase-offer. 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
delisting purchase 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 delisting purchase
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 delisting purchase offer.
This publication is available
on the internet at: www.novartis.com/investors/morphosys-acquisition/delisting-purchase-offer
on: 18 July 2024.
Basel, 18 July 2024
Novartis BidCo AG
Board of Directors
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