Qiagen N.V SC 14D9/A, filed Jul 16, 2020
Qiagen N.V. (QGEN)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(RULE 14d-101)
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
QIAGEN N.V.
(Name of Subject Company)
QIAGEN N.V.
(Name of Persons Filing Statement)
Ordinary shares, par value EUR 0.01 per share
(Title of Class of Securities)
N72482123
(CUSIP Number of Class of Securities)
Roland Sackers
Chief Financial Officer
QIAGEN N.V.
Hulsterweg 82
5912 PL Venlo
The Netherlands
Tel: 011-31-77-355-6600
(Name, address and telephone numbers of person authorized to receive notices and communications
on behalf of the persons filing statement)
With copies to:
Jonathan L. Kravetz, Esq.
Matthew J. Gardella, Esq.
John P. Condon, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
(617) 542-6000
| ☐ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
This Amendment No. 2 to Schedule 14D-9 (this “Amendment No. 2”) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 originally filed with the Securities and Exchange Commission (the “SEC”) on May 18, 2020 (the “Initial Schedule 14D-9,” as amended by Amendment No. 1 to Schedule 14D-9, filed with the SEC on June 15, 2020, together with any subsequent amendments and supplements thereto, the “Schedule 14D-9”) by QIAGEN N.V., a public limited liability company (naamloze vennootschap) organized under the laws of The Netherlands registered with the trade register in The Netherlands under file number 12036979 (“QIAGEN”) relating to the tender offer by Quebec B.V. (“Bidder”), a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) organized under the laws of The Netherlands and a wholly owned subsidiary of Thermo Fisher Scientific Inc., a Delaware corporation (“Thermo Fisher”), for all issued ordinary shares, par value €0.01 per share (the “QIAGEN Shares”), of QIAGEN (the “Offer”).
Item 8. Additional Information
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding the following:
“On July 16, 2020, Thermo Fisher and QIAGEN entered into an Amendment (the “Amendment”) to the Business Combination Agreement, dated as of March 3, 2020, by and between Thermo Fisher and QIAGEN.
The Amendment provides for, among other things, an increase to the offer price from EUR 39.00 per QIAGEN Share to EUR 43.00 per QIAGEN Share, and a reduction of the minimum acceptance threshold from 75% to 66.67% of QIAGEN’s issued and outstanding ordinary share capital at the end of the acceptance period for the Offer (the “Acceptance Period”), excluding, for the avoidance of doubt, any QIAGEN Shares held by QIAGEN in treasury at the end of the Acceptance Period.
Pursuant to and subject to the terms of the Amendment, QIAGEN has agreed to pay to Thermo Fisher an expense reimbursement payment of $95 million in cash under certain circumstances if the minimum acceptance threshold is not satisfied by the end of the Acceptance Period.
Thermo Fisher will make available an amendment to the Offer Document to effect the amendment of the terms of the Offer under applicable securities laws. As a result of the amendment to the Offer Document, the Acceptance Period will be extended by two (2) weeks pursuant to the German Securities Acquisition and Takeover Act and will expire on August 10, 2020, 24:00 hours (Frankfurt am Main local time) / 18:00 hours (New York City local time).
The Supervisory Board and Managing Board of QIAGEN (the “Boards”) unanimously approved the Amendment and unanimously recommend that QIAGEN Shareholders accept the Offer and tender their QIAGEN Shares in the Offer. QIAGEN expects promptly (i) to publish in Germany a supplement to its Joint Reasoned Position Statement (the “Supplement”) and (ii) to file the Supplement as part of a further amendment to the Schedule 14D-9. The Supplement and further amendment to the Schedule 14D-9 will provide detailed information about the factors considered by the Boards in their recommendation with respect to the revised transaction.
On July 16, 2020, QIAGEN issued an ad-hoc announcement and jointly with Thermo Fisher a press release announcing the execution of the Amendment. A copy of the ad-hoc announcement is attached hereto as Exhibit (a)(5)(P) and is incorporated herein by reference. A copy of the press release is attached hereto as Exhibit (a)(5)(Q) and is incorporated herein by reference.”
Item 9. Exhibits
The exhibit list in Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding Exhibits (a)(5)(P), (a)(5)(Q) and (e)(27) as set forth below:
| Exhibit No. |
Description | |
| (a)(5)(P) | Ad Hoc Announcement issued by QIAGEN N.V. on July 16, 2020. | |
| (a)(5)(Q) | Joint Press Release issued by Thermo Fisher Scientific Inc. and QIAGEN N.V., dated July 16, 2020 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 6-K, filed by QIAGEN N.V. with the SEC on July 16, 2020). | |
| (e)(27) | Amendment dated as July 16, 2020 to the Business Combination Agreement, dated as of March 3, 2020, by and between Thermo Fisher Scientific Inc. and QIAGEN N.V. (incorporated by reference to Exhibit 2.1 to the Form 8-K filed by Thermo Fisher Scientific Inc. with the U.S. Securities and Exchange Commission on July 16, 2020).* | |
| * | Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule or exhibit will be furnished supplementally to the Securities and Exchange Commission upon request; provided, that QIAGEN may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules or exhibits so furnished. |
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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.
| QIAGEN N.V. | ||||
| By: | /s/ Roland Sackers | |||
| Name: | Roland Sackers | |||
| Title: | Chief Financial Officer | |||
Date: July 16, 2020
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Exhibit (A)(5)(P)
Key word(s): Increased Offer for QIAGEN
Ad hoc Announcement according to Art. 17 Market Abuse Regulation
Thermo Fisher to increase cash consideration and lower Acceptance Threshold in Offer for all shares of QIAGEN N.V.
Venlo, The Netherlands, July 16, 2020 – QIAGEN N.V. (NYSE: QGEN; Frankfurt Prime Standard: QIA) (“QIAGEN” or the “Company”) announces that Thermo Fisher Scientific Inc. (NYSE: TMO, “Thermo Fisher”) and QIAGEN have entered into an amendment to the Business Combination Agreement in connection with the ongoing public tender offer (the “Offer”) to all QIAGEN shareholders for the acquisition of all issued ordinary shares of the Company.
According to the amended agreement, Quebec B.V., the wholly-owned subsidiary of Thermo Fisher making the public tender Offer, will increase the cash consideration offered per QIAGEN share from EUR 39.00 to EUR 43.00. Furthermore, Thermo Fisher and QIAGEN have agreed to lower the minimum acceptance threshold, which is a condition to the Offer, from 75% to 66.67% and a USD 95 million expense reimbursement payable by QIAGEN to Thermo Fisher if the minimum acceptance threshold is not met.
The Managing Board and the Supervisory Board of QIAGEN consider, under the terms of and subject to the conditions of the amended Business Combination Agreement, the Offer, as amended, and further transactions related to the Offer to be in the best interest of QIAGEN and its stakeholders (including its shareholders) and have re-affirmed their unanimous support and recommendation of the Offer for acceptance to QIAGEN’s shareholders.
An amendment to the Offer Document will be published by Quebec B.V. in accordance with the German Securities Acquisition and Takeover Act and Thermo Fisher and/or Quebec B.V. will file with the U.S. Securities and Exchange Commission (“SEC”) an amendment to the tender offer statement on Schedule TO. As a result of the amendment to the Offer Document, the acceptance period will be extended by two weeks until August 10, 2020, 24:00 hours (midnight) CEST (18:00 hours New York local time).
QIAGEN N.V.
Hulsterweg 82
5912 PL Venlo
The Netherlands
ISIN: NL0012169213
Frankfurt Stock Exchange, Regulated Market (Prime Standard)
Contacts QIAGEN N.V.:
John Gilardi, Tel: +49 2103 29 11711; john.gilardi@qiagen.com
Forward Looking Statement
Certain statements contained in this press release may be considered forward-looking statements within the meaning of Section 27A of the U.S. Securities Act of 1933, as amended, and Section 21E of the U.S. Securities Exchange Act of 1934, as amended. To the extent that any of the statements contained herein relating to the recommended offer by Thermo Fisher Scientific, Inc. and the expected benefits related to the proposed transaction are forward-looking, such statements are based on current expectations and assumptions that involve a number of uncertainties and risks. Such uncertainties and risks include, but are not limited to, risks associated with management of growth and international operations (including the effects of currency fluctuations, regulatory processes and dependence on logistics); variability of operating results and allocations between customer classes; the commercial development of markets for our products to customers in academia, pharma, applied testing and molecular diagnostics; changing relationships with customers, suppliers and strategic partners; competition; rapid or unexpected changes in technologies; fluctuations in demand for QIAGEN’s products (including fluctuations due to general economic conditions, the level and timing of customers’ funding, budgets and other factors); our ability to obtain regulatory approval of our products; difficulties in successfully adapting QIAGEN’s products to integrated solutions and producing such products; the ability of QIAGEN to identify and develop new products and to differentiate and protect our products from competitors’ products; market acceptance of QIAGEN’s new products and the integration of acquired technologies and businesses; actions of governments, global or regional economic developments, weather or transportation delays, natural disasters, political or public health crises, including the breadth and duration of the COVID-19 pandemic and its impact on the demand for our products and other aspects of our business, or other force majeure events; as well as the possibility that expected benefits related to recent or pending acquisitions, including the pending acquisition by Thermo Fisher Scientific Inc., may not materialize as expected; and the other factors discussed under the heading “Risk Factors” contained in Item 3 of our most recent Annual Report on Form 20-F. For further information, please refer to the discussions in reports that QIAGEN has filed with, or furnished to, the U.S. Securities and Exchange Commission (SEC).
Additional Information and Where to Find It
This communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell any ordinary shares of QIAGEN or any other securities, nor is it a substitute for the tender offer materials that Thermo Fisher or its acquisition subsidiary file with the SEC and publish in Germany. The terms and conditions of the tender offer are published in, and the offer to purchase ordinary shares of QIAGEN is made only pursuant to, the offer document as permitted for publication by the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht) and related offer materials prepared by Thermo Fisher and its acquisition subsidiary. The offer document and related offer materials have been published in Germany and filed with the SEC in a tender offer statement on Schedule TO on May 18, 2020, as amended from time to time. QIAGEN has filed a solicitation/recommendation statement on Schedule 14D-9 with the SEC with respect to the tender offer on May 18, 2020, as amended from time to time; in addition, QIAGEN has published a document combining the recommendation statement pursuant to Sec. 27 of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz, “WpÜG”) and the position statement (gemotiveerde standpuntbepaling) pursuant to Section 18 and appendix G of the Dutch Decree on Public Takeovers (Besluit Openbare Biedingen). The offer document for the tender offer (in German and in English) containing the detailed terms and conditions of, and other information relating to, the tender offer, among other things, are published on the internet at https://corporate.thermofisher.com/en/offer.html.
Acceptance of the tender offer by shareholders that are resident outside Germany and the United States may be subject to further legal requirements. With respect to the acceptance of the tender offer outside Germany and the United States, no responsibility is assumed for the compliance with such legal requirements applicable in the respective jurisdiction.
THE TENDER OFFER MATERIALS (INCLUDING THE OFFER DOCUMENT, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS), THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 AND QIAGEN’S RECOMMENDATION STATEMENT PURSUANT TO SEC. 27 WPÜG AND POSITION STATEMENT (GEMOTIVEERDE STANDPUNTBEPALING) PURSUANT TO SECTION 18 AND APPENDIX G OF THE DUTCH DECREE ON PUBLIC TAKEOVERS (BESLUIT OPENBARE BIEDINGEN), AS THEY MAY BE AMENDED FROM TIME TO TIME, CONTAIN IMPORTANT INFORMATION. INVESTORS AND SHAREHOLDERS OF QIAGEN ARE URGED TO
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READ THESE DOCUMENTS CAREFULLY BECAUSE THEY, AND NOT THIS DOCUMENT, GOVERN THE TERMS
AND CONDITIONS OF THE TENDER OFFER, AND BECAUSE THEY CONTAIN IMPORTANT INFORMATION THAT SUCH PERSONS SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR ORDINARY SHARES.
The tender offer materials, including the offer document and the related letter of transmittal and certain other tender offer documents, and the solicitation/recommendation statement and other documents filed with the SEC by Thermo Fisher or QIAGEN, may be obtained free of charge at the SEC’s website at www.sec.gov or at QIAGEN’s website at www.qiagen.com or by contacting QIAGEN’s investor relations department at 240-686-2222 or at Thermo Fisher’s website at www.thermofisher.com or by contacting Thermo Fisher’s investor relations department at 781-622-1111. In addition, Thermo Fisher’s tender offer statement and other documents filed with the SEC are available at https://ir.thermofisher.com/investors. Furthermore, copies of the offer document are also available free of charge by contacting D.F. King & Co., Inc., Thermo Fisher’s information agent for the tender offer.
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