LONDON, July 31, 2020 /PRNewswire/ --
Dr. Hakan Björklund (Chairman of the Supervisory Board)
Stéphane Bancel (Supervisory Board Director)
Dr. Metin Colpan (Supervisory Board Director)
Prof. Dr. Ross Levine (Supervisory Board Director)
Prof. Dr. Elaine Mardis (Supervisory Board Director)
Lawrence A. Rosen (Supervisory Board Director and Chairman of the Audit Committee)
Elizabeth E. Tallett (Supervisory Board Director and Chairwoman of the Compensation Committee)
Thierry Bernard (Chief Executive Officer)
Roland Sackers (Chief Financial Officer)
Hulsterweg 82, 5912 PL Venlo, Netherlands
31 July 2020
Dear Members of the Supervisory Board and Management Board,
Thermo Can Relaunch a New Offer Immediately with Qiagen's Approval if the Current Offer Fails on 10 August
Following our call with Dr. Björklund on 30 July 2020, we are deeply concerned that there is a misunderstanding of the German tender rules amongst the Board and possibly amongst shareholders, particularly with regards to the 12-month blocking period applicable after an offer fails. As requested by Dr. Björklund on our call, we are sending you the precedent cases of transactions in Germany that have been re-struck shortly after the initial offer lapses to provide clarity around this topic. We think it is important to clear up this misunderstanding as it is misleading and could influence shareholders' decision to tender.
While it is correct that when an offer lapses, there is a formal 12 month blocking period, during which the acquirer cannot launch a new offer, there is an important exception to this rule. Under this exception, BaFin may grant approval for the offer to be relaunched immediately as long as the acquirer requests it and the target company (i.e. Qiagen) consents to this exception. This is a well-trodden path for acquirers.
All of the recent examples below saw an offer relaunched in a period of a few weeks after failure:
-- 2017: Nidda Healthcare Holding AG / Stada Arzneimittel AG (initial offer
failed on 22 June 2017, new offer announced on 10 July 2017)
-- 2013/2014: Dragonfly GmbH & Co. KGaA / Celesio AG (initial offer failed
on 9 January 2014, new offer announced on 23 January 2014)
-- 2005: NDO Services B.V. / arxes Network Communications Consulting AG
(initial offer failed on 29 September 2005, new offer announced on 7
Davidson Kempner() has Significantly Increased its Stake in Qiagen
Davidson Kempner continues to materially increase its position in the share capital of Qiagen N.V. and now holds a 7.3% stake.
This letter is not intended to provide any legal advice and any recipient should review its contents with their own advisors.
Davidson Kempner European Partners, LLP
Mr. Michael Herzog
cc: Risto Koivula (Partner)
Appendix 1 - Detailed Rules from Morgan, Lewis & Bockius LLP
Section 26 paragraph (2) of the German Securities Acquisition and Takeover Act (WpÜG), as amended with effect as of 20 December 2019, provides that, if the offeror has made the offer subject to the condition of acquiring a minimum portion of the target company's securities and if the offer lapses because the minimum acquisition threshold was not reached at the end of the acceptance period,
(i) the offeror (of the lapsed offer);
(ii) a person which acted jointly with the offeror during the time period from the publication of the decision to make the lapsed offer until the end of the acceptance period of the lapsed offer; or
(iii) a person which is acting jointly with the offeror, or with a person described above under (ii), at the time of the publication of the decision to make an offer;
may not make an additional offer to the shareholders of the target company, or publish the decision to make such an offer until one year has lapsed.
In the case of an offer that lapsed because the minimum acceptance threshold condition was not fulfilled, the one year blocking period commences on the day after the acceptance period of the lapsed offer has ended. (Section 26 paragraph (3) sentence 2 WpÜG)
These rules, however, do not apply if the respective offeror is obliged to publish the direct or indirect acquisition of control of the target company and to submit and publish a mandatory offer to the shareholders of the target company. (Section 26 paragraph (4) WpÜG)
In addition, the BaFin may exempt the respective offeror, on its written request, from observing the blocking period if the target company consents to the exemption (Section 26 paragraph (5) WpÜG)
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 Davidson Kempner European Partners, LLP is the sub-adviser to Davidson Kempner Capital Management LP which acts as the discretionary investment manager to various funds which hold in aggregate 7.3% of the share capital of the Qiagen N.V. as of 30 July 2020.