Qiagen N.V SC TO-T/A, filed Jul 16, 2020
Qiagen N.V. (QGEN)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
of the Securities Exchange Act of 1934
(Amendment No. 12)
(Name of Subject Company (Issuer))
(Offeror)
a wholly owned subsidiary of
(Ultimate Parent of Offeror)
(Names of Filing Persons (identifying status as offeror, issuer, or other person))
(Title of Class of Securities)
(CUSIP Number of Class of Securities)
Senior Vice President and General Counsel
Thermo Fisher Scientific Inc.
168 Third Avenue
Waltham, Massachusetts 02451
Telephone: (781) 622-1000
(Name, address, and telephone number of person authorized to receive notices and
communications on behalf of filing persons)
Brandon C. Price, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Telephone: (212) 403-1000
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CALCULATION OF FILING FEES
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Transaction Valuation(1)
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Amount of Filing Fee(2)
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$11,536,919,459
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$1,497,493
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| | Amount Previously Paid: $1,304,521 | | | Filing Party: Quebec B.V. andThermo Fisher Scientific Inc. | |
| | Form or Registration No.: Schedule TO | | | Date Filed: April 28, 2020 | |
Title: Managing Director
Title: Senior Vice President and General Counsel
Exhibit (a)(5)(R)
News
| Thermo Fisher Media Contact Information: Karen Kirkwood |
Thermo Fisher Investor Contact Information: Ken Apicerno |
| Phone: 781-622-1306 | Phone: 781-622-1294 |
E-mail: karen.kirkwood@thermofisher.com Website: www.thermofisher.com
QIAGEN Media Contact Information: |
E-mail: ken.apicerno@thermofisher.com
QIAGEN Investor Contact Information: |
Thermo Fisher Scientific and QIAGEN N.V. Agree on Amended Terms
to Acquisition Agreement
| · | Offer price increased from €39.00 to €43.00 per QIAGEN share in cash |
| · | Minimum acceptance threshold lowered from 75% to 66.67% of outstanding QIAGEN shares |
| · | QIAGEN Supervisory and Managing Boards reaffirm unanimous recommendation that QIAGEN shareholders tender all of their QIAGEN shares |
WALTHAM, Mass. and VENLO, The Netherlands – July 16, 2020 – Thermo Fisher Scientific Inc. (NYSE: TMO), the world leader in serving science, and QIAGEN N.V. (NYSE: QGEN; Frankfurt Prime Standard: QIA), a leading global provider of Sample to Insight molecular diagnostics and sample preparation technologies, today announced that they have entered into an amendment to their acquisition agreement under which Thermo Fisher has commenced a tender offer to acquire all of the ordinary shares of QIAGEN.
The amendment provides for an increase from the original offer price of €39.00 to a new price of €43.00 per QIAGEN share in cash, which represents a premium of approximately 35% to the closing price of QIAGEN’s ordinary shares on the Frankfurt Prime Standard on March 2, 2020, the last trading day prior to the announcement of the acquisition agreement and Thermo Fisher’s intention to commence the offer. The amendment also provides for 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 on August 10, 2020, as well as a USD 95 million expense reimbursement to Thermo Fisher if the minimum acceptance threshold is not met.
The members of QIAGEN’s Supervisory Board and Managing Board have reaffirmed their unanimous support for the offer and their unanimous recommendation that all QIAGEN shareholders accept and tender all of their QIAGEN shares in the offer prior to the end of the acceptance period, which has now been extended to August 10, 2020. Each of the members of the Supervisory Board and Managing Board has tendered or will tender all of their QIAGEN shares in the offer.
Marc N. Casper, chairman, president and chief executive officer of Thermo Fisher Scientific, said, “Industry dynamics have changed considerably in the past few months, creating tailwinds and headwinds for our businesses. Both of our companies are playing important roles in helping customers to battle the COVID-19 pandemic. After careful consideration, we’ve decided to increase our offer for QIAGEN to reflect the fair value of the business given the current environment. We remain confident that this transaction will create shareholder value and, importantly, provide meaningful benefits to our customers and society by combining our capabilities to combat infectious diseases and other healthcare issues. We continue to look forward to completing the transaction in the first half of 2021.”
“After carefully considering the updated offer by Thermo Fisher, QIAGEN's Supervisory Board and Managing Board both unanimously recommend that shareholders accept this offer given that it reflects the improvements in our business performance and future prospects as a result of the coronavirus pandemic,” said Thierry Bernard, chief executive officer of QIAGEN N.V. “The rationale for this strategic step is stronger than ever, especially as the value of molecular testing becomes ever more evident. This combination is designed to enable QIAGEN employees and our portfolio of Sample to Insight solutions to have an even greater impact on society while also delivering significant cash value to our shareholders. We look forward to working closely with Thermo Fisher to successfully complete the transaction.”
QIAGEN shareholders who have already effectively accepted the offer by tendering their shares are not required to take further action in order to receive the increased offer price in accordance with the terms of the offer. Thermo Fisher’s tender offer statement on Schedule TO, including the offer document that is an exhibit thereto, and QIAGEN’s solicitation/recommendation statement on Schedule 14D-9 will be amended to reflect the revised terms of the transaction. The acceptance period is now scheduled to expire at 24:00 hours (Frankfurt am Main local time) / 18:00 hours (New York local time) on August 10, 2020.
Advisors
J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC are serving as financial advisors to Thermo Fisher, and Wachtell, Lipton, Rosen & Katz is serving as legal counsel. For QIAGEN, Goldman Sachs International is serving as lead financial advisor and Barclays Bank PLC is serving as financial advisor, while De Brauw Blackstone Westbroek NV, Linklaters LLP and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. are serving as legal counsel.
About Thermo Fisher
Thermo Fisher Scientific Inc. (NYSE: TMO) is the world leader in serving science, with annual revenue exceeding $25 billion. Our Mission is to enable our customers to make the world healthier, cleaner and safer. Whether our customers are accelerating life sciences research, solving complex analytical challenges, improving patient diagnostics and therapies or increasing productivity in their laboratories, we are here to support them. Our global team of more than 75,000 colleagues delivers an unrivaled combination of innovative technologies, purchasing convenience and pharmaceutical services through our industry-leading brands, including Thermo Scientific, Applied Biosystems, Invitrogen, Fisher Scientific, Unity Lab Services and Patheon. For more information, please visit www.thermofisher.com.
About QIAGEN
QIAGEN N.V., a Netherlands-based holding company, is the leading global provider of Sample to Insight solutions that enable customers to gain valuable molecular insights from samples containing the building blocks of life. Our sample technologies isolate and process DNA, RNA and proteins from blood, tissue and other materials. Assay technologies make these biomolecules visible and ready for analysis. Bioinformatics software and knowledge bases interpret data to report relevant, actionable insights. Automation solutions tie these together in seamless and cost-effective workflows. QIAGEN provides solutions to more than 500,000 customers around the world in Molecular Diagnostics (human healthcare) and Life Sciences (academia, pharma R&D and industrial applications, primarily forensics). As of June 30, 2020, QIAGEN employed approximately 5,200 people in over 35 locations worldwide. Further information can be found at http://www.qiagen.com.
Forward-Looking Statements
This communication contains forward-looking statements that involve a number of risks and uncertainties. Words such as “believes,” “anticipates,” “plans,” “expects,” “seeks,” “estimates,” and similar expressions are intended to identify forward-looking statements, but other statements that are not historical facts may also be deemed to be forward-looking statements. Important factors that could cause actual results to differ materially from those indicated by forward-looking statements include risks and uncertainties relating to: the duration and severity of the COVID-19 pandemic; the need to develop new products and adapt to significant technological change; implementation of strategies for improving growth; general economic conditions and related uncertainties; dependence on customers’ capital spending policies and government funding policies; the effect of economic and political conditions and exchange rate fluctuations on international operations; use and protection of intellectual property; the effect of changes in governmental regulations; and the effect of laws and regulations governing government contracts, as well as the possibility that expected benefits related to recent or pending acquisitions, including the proposed transaction, may not materialize as expected; the proposed transaction not being timely completed, if completed at all; regulatory approvals required for the transaction not being timely obtained, if obtained at all, or being obtained subject to conditions; prior to the completion of the transaction, QIAGEN’s business experiencing disruptions due to transaction-related uncertainty or other factors making it more difficult to maintain relationships with employees, customers, licensees, other business partners or governmental entities; difficulty retaining key employees; the outcome of any legal proceedings related to the proposed transaction; and the parties being unable to successfully implement integration strategies or to achieve expected synergies and operating efficiencies within the expected time-frames or at all. Additional important factors that could cause actual results to differ materially from those indicated by such forward-looking statements are set forth in Thermo Fisher’s Annual Report on Form 10-K for the year ended December 31, 2019 and Quarterly Report on Form 10-Q for the quarter ended March 28, 2020, which are on file with the U.S. Securities and Exchange Commission (“SEC”) and available in the “Investors” section of Thermo Fisher’s website, ir.thermofisher.com, under the heading “SEC Filings,” and in any subsequent Quarterly Reports on Form 10-Q and other documents Thermo Fisher files with the SEC, and in QIAGEN’s Annual Report on Form 20-F for the year ended December 31, 2019, which is on file with the SEC and available in the “Investor Relations” section of QIAGEN’s website, corporate.qiagen.com/investor-relations, under the heading “Financial Reports,” and in any subsequent Quarterly Reports on Form 6-K and other documents QIAGEN files or furnishes with the SEC. While Thermo Fisher or QIAGEN may elect to update forward-looking statements at some point in the future, Thermo Fisher and QIAGEN specifically disclaim any obligation to do so, even if estimates change and, therefore, you should not rely on these forward-looking statements as representing either Thermo Fisher’s or QIAGEN’s views as of any date subsequent to today.
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 and/or its acquisition subsidiary has filed with the SEC and published 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, the publication of which was permitted by German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht), and related offer materials prepared by Thermo Fisher and/or its acquisition subsidiary. The offer document for the tender offer (in German and in English), as amended, containing the detailed terms and conditions of, and other information relating to, the tender offer is, among other things, published on the internet at https://corporate.thermofisher.com/en/offer.html.
Acceptance of the tender offer by shareholders that are resident outside of the member states of the European Union and the European Economic Area and the United States may be subject to further legal requirements. With respect to the acceptance of the tender offer outside of the member states of the European Union and the European Economic Area 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) AND QIAGEN’S SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9, AS THEY MAY BE AMENDED FROM TIME TO TIME, AS WELL AS QIAGEN’S RECOMMENDATION STATEMENT PURSUANT TO SEC. 27 OF THE GERMAN SECURITIES ACQUISITION AND TAKEOVER ACT (WERTPAPIERERWERBS- UND ÜBERNAHMEGESETZ-WPÜG) AND POSITION STATEMENT (GEMOTIVEERDE STANDPUNTBEPALING) PURSUANT TO SECTION 18 AND APPENDIX G OF THE DUTCH DECREE ON PUBLIC TAKEOVERS (BESLUIT OPENBARE BIEDINGEN) CONTAIN IMPORTANT INFORMATION. INVESTORS AND SHAREHOLDERS OF QIAGEN ARE URGED TO READ THESE DOCUMENTS CAREFULLY BECAUSE THEY, AND NOT THIS DOCUMENT, WILL 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 it files with the SEC are available at https://ir.thermofisher.com/investors. Furthermore, copies of the offer document are available free of charge by contacting D.F. King & Co., Inc., Thermo Fisher’s information agent for the tender offer.
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Exhibit (d)(8)
AMENDMENT NO. 1 TO
BUSINESS COMBINATION AGREEMENT
This AMENDMENT NO. 1 TO BUSINESS COMBINATION AGREEMENT (this “Amendment”), dated as of July 16, 2020, is by and between Thermo Fisher Scientific Inc., a Delaware corporation (“Buyer”), and QIAGEN N.V., a public limited liability company (naamloze vennootschap) incorporated under the laws of the Netherlands with its corporate seat in Venlo, The Netherlands, Trade Register number 12036979 (the “Company”).
W I T N E S S E T H:
WHEREAS, Buyer and the Company are parties to that certain Business Combination Agreement, dated as of March 3, 2020 (the “Combination Agreement”);
WHEREAS, clause 26 of the Combination Agreement provides that any amendment to the Combination Agreement is valid only if made in writing and signed by each of Buyer and the Company;
WHEREAS, Buyer and the Company desire to amend the Combination Agreement pursuant to clause 26 thereof as set forth herein;
WHEREAS, after due consideration, each of the managing board of the Company (the “Managing Board”) and the supervisory board of the Company (the “Supervisory Board”, and together with the Managing Board, the “Company Boards”), have each unanimously determined that this Amendment, the accordingly amended Offer, the other Transactions and the related actions as contemplated by the Combination Agreement, as amended by this Amendment, are in the best interests of the Company and its stakeholders (including its shareholders), have approved the execution, delivery and performance of this Amendment and the consummation of the Transactions, and unanimously recommend, in accordance with the Combination Agreement, that QIAGEN Shareholders accept the Offer and tender their QIAGEN Shares in the Offer; and
WHEREAS, after due consideration, the board of directors of Buyer have unanimously determined that this Amendment, the accordingly amended Offer, the other Transactions and the related actions as contemplated by the Combination Agreement, as amended by this Amendment, are in the best interests of the Buyer, and have approved the execution, delivery and performance of this Amendment and the consummation of the Transactions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and the Company hereby agree as follows:
| SECTION 1. | Definitions. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Combination Agreement. |
| SECTION 2. | Amendments to the Combination Agreement. The Combination Agreement is hereby amended as follows: |
| (a) | Clause 2.2.1 of the Combination Agreement is hereby amended and restated in its entirety to read as follows: |
The consideration offered for
the Company Shares in the Offer will be a cash consideration in the amount of
EUR 43.00 per Company Share, without interest (the “Offer Consideration”), subject to any increases made either
voluntarily or as required in accordance with the provisions of the German Takeover Act (including any claims under Section 31
(3) through (6) German Takeover Act) and the Exchange Act.
| (b) | Clause 4.1.1(a) of the Combination Agreement is hereby amended to amend and restate only the definition of “Acceptance Threshold” set forth therein to read as follows: |
“Acceptance Threshold” means 66.67% of the Company’s issued and outstanding ordinary share capital (geplaatst en uitstaand gewoon kapitaal), excluding for the avoidance of doubt any Treasury Shares which shall be not tendered into the Offer, as of the End of the Acceptance Period;
| (c) | Clause 12.1.1 of the Combination Agreement is hereby amended to delete the word “and” at the end of clause (a); to delete the period and in place thereof add “; and” at the end of clause (b); and add a new clause (c) at the end thereof, to read as follows: |
| (c) | consult and cooperate on the communications procedures described in Schedule 1(A) hereto. |
| (d) | Clause 20 of the Combination Agreement is hereby amended and restated in its entirety to read as follows: |
Notwithstanding anything to the contrary herein, if (i) either Party terminates the Agreement pursuant to clause 16.1(b), (ii) the Termination Payment is not otherwise payable to the Buyer pursuant to clause 17.1.1 and (iii) the Offer Condition set forth in clause 4.1.1(a) (Acceptance Threshold) is not satisfied by the End of the Acceptance Period, the Company shall pay to the Buyer, by wire transfer of immediately available funds within five (5) calendar days following any such termination, a payment of $95,000,000 in cash, exclusive of VAT (if any), in respect of the expenses incurred by the Buyer and its Affiliates in connection with this Agreement, the Transactions and the other transactions contemplated hereby (the “Expense Reimbursement Payment”).
Clause 17.1.2 shall apply mutatis mutandis to the Expense Reimbursement Payment, it being understood that for these purposes any reference to the “termination payment” shall be interpreted as a reference to the Expense Reimbursement Payment and any reference to “clause 17.1” shall be interpreted as a reference to clause 20.
Subject to the foregoing and except where this Agreement provides otherwise, each Party shall pay its own costs relating to the negotiation, preparation, execution and performance of this Agreement and any documents executed pursuant thereto.
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| (e) | Schedule 1 is hereby amended by adding to the end thereof a new Schedule 1(A), as set forth in Schedule A attached hereto. |
| (f) | The definition of “Intervening Event” set forth in Schedule 1 to the Combination Agreement is hereby amended by (i) deleting each reference to “the date of this Agreement” therein and replacing each such reference with “July 16, 2020” and (ii) adding “or (3) any effects arising out of the COVID-19 pandemic, or any matter relating thereto or consequence thereof, including on the business or prospects of the Company,” to the proviso in such definition before the words “constitute an Intervening Event”. |
SECTION 3. The Buyer will cause the Offeror to publish, without undue delay, an amendment to the Offer in accordance with sections 21 and 14 of the German Takeover Act, which will include the amendments set forth in Section 2(a) and Section 2(b) of this Amendment, and shall promptly thereafter file a corresponding amendment to the Schedule TO with the SEC. The Company will publish, without undue delay, a Supplemental Reasoned Position Statement and file a corresponding amendment to the Schedule 14D-9/A with the SEC which will reflect the terms of this Amendment and comply in all respects with the obligations set forth herein and in the Combination Agreement.
SECTION 4. It is acknowledged that the Company initiated the procedure set forth in clause 3.4(a) of the Combination Agreement by notice of July 9, 2020 (the “9 July Notice”) and the Parties subsequently engaged in good faith discussions which resulted in this Amendment. In connection with this Amendment, consistent with their fiduciary duties under the Laws of the Netherlands, the Company Boards have determined not to make an Adverse Recommendation Change, and have unanimously reaffirmed the Company Recommendation and will comply with their obligations under Sections 3.1 and 3.2 of the Combination Agreement with respect to the Supplemental Reasoned Position Statement and amendment to the Schedule 14D-9/A to be issued by the Company following this Amendment. Subject to compliance with the foregoing, the Buyer and the Company acknowledge and agree that no Adverse Recommendation Change has been made by the Company Boards as of the date hereof, and accordingly the Buyer is not entitled to terminate the Combination Agreement as a result of the 9 July Notice, and the Offer Condition in Clause 4.1.1(c) of the Combination Agreement remains capable of being satisfied.
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SECTION 5. Effect of Amendment. This Amendment shall not constitute an amendment or waiver of any provision of the Combination Agreement not expressly amended or waived herein and shall not be construed as an amendment, waiver or consent to any action that would require an amendment, waiver or consent except as expressly stated herein. The Combination Agreement, as amended by this Amendment, shall remain in full force and effect in accordance with its terms.
SECTION 6. References to the Combination Agreement. After giving effect to this Amendment on the date hereof, each reference in the Combination Agreement to “this Agreement,” “hereof,” “hereunder” or words of like import referring to the Combination Agreement shall refer to the Combination Agreement as amended by this Amendment, provided that, except as set forth in Section 2 herein, references in the Combination Agreement to “as of the date hereof” or “as of the date of this Agreement” or words of like import shall continue to refer to March 3, 2020.
SECTION 7. Entire Agreement and Amendment. This Amendment, together with the Combination Agreement (including the Schedules thereto and the Company Disclosure Letter) and the Confidentiality Agreement, constitutes the entire agreement between and understanding of the Parties in respect of the Offer and the other Transactions and any preceding or concurrent oral or written agreements or arrangements between the Parties in relation thereto are hereby superseded provided, for the avoidance of doubt, that any agreements between the Parties in relation to the merger-clearance and foreign-direct-investment-clearance process shall remain valid and in full force. A variation, supplement or any amendment to this Amendment Agreement is valid only if it is in writing and signed by each of the Parties.
SECTION 8. Miscellaneous Provisions. Clauses 18, 19, 21 through 25 and 27 through 29 of the Combination Agreement shall apply to this Amendment mutatis mutandis and, for the avoidance of doubt, to the Combination Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms therein as modified hereby.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first above written.
| THERMO FISHER SCIENTIFIC INC. | |||
| By: | /s/ Michael A. Boxer | ||
| Name: | Michael A. Boxer | ||
| Title: | Senior Vice President and General Counsel | ||
[Signature Page to Amendment No. 1 to Business Combination Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first above written.
| QIAGEN N.V. | |||
| By: | /s/ Roland Sackers | ||
| Name: | Roland Sackers | ||
| Title: | Chief Financial Officer | ||
[Signature Page to Amendment No. 1 to Business Combination Agreement]