UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange
Act of 1934
(Amendment No. 1)
LAVA Therapeutics N.V.
(Name of Subject Company)
LAVA Therapeutics N.V.
(Name of Persons Filing Statement)
Common shares, nominal value €0.12 per
share
(Title of Class of Securities)
N51517105
(CUSIP Number of Class of Securities)
Stephen Hurly
Chief Executive Officer and President
LAVA Therapeutics, N.V.
Yalelaan 62
3584 CM Utrecht, The Netherlands
+31 85 016 3100
(Name, address, and telephone number of person
authorized to receive notices and communications
on behalf of the persons filing statement)
With a copy to:
Divakar Gupta
Katie Kazem
Courtney T. Thorne
Rita Sobral
Cooley LLP
55 Hudson Yards
New York, New York 10001
(212) 479-6000
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Check the box if the filing
relates solely to preliminary communications made before the commencement of a tender offer. |
This Amendment No. 1 (“Amendment No.1”)
to Schedule 14D-9 amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 previously filed by LAVA Therapeutics,
N.V., a Dutch public limited liability company (naamloze vennootschap) (“LAVA” or the “Company”), with
the U.S. Securities and Exchange Commission (the “SEC”) on August 15, 2025 (together with any exhibits attached thereto,
as it may be amended or supplemented from time to time, the “Schedule 14D-9”), with respect to the tender offer made by XOMA
Royalty Corporation, a Nevada corporation (“Buyer”), to acquire all of the outstanding common shares, nominal value €0.12
per share, of LAVA (the “Shares”) for (i) a price per Share of $1.16 (the “Base Price Per Share”) plus an additional
amount of cash of up to $0.08 per Share (such amount as finally determined in accordance with the Purchase Agreement,
the “Additional Price Per Share” and together with the Base Price Per Share, the “Cash Amount”) plus (ii) one
contingent value right (“CVR”) per Share, which shall represent the right to receive potential payments, in cash, described in, and subject to and in accordance with the terms
and conditions of, the CVR Agreement, payable subject to any applicable tax withholding and without interest (together with the Cash Amount, the “Offer Consideration”), all upon
the terms and subject to the conditions as set forth in the Offer to Purchase, dated August 15, 2025 (together with any amendments and
supplements thereto, the “Offer to Purchase”), and in the related Letter of Transmittal (together with any amendments and
supplements thereto, the “Letter of Transmittal” and together with the Offer to Purchase, the “Offer”). Any capitalized
term used and not otherwise defined herein shall have the meaning ascribed to such term in the Schedule 14D-9.
This Amendment No. 1 is being filed to reflect
certain updates to the Schedule 14D-9 as set forth below. Unless stated otherwise, new text is reflected in bolded and underlined text,
and any deleted text is bolded and denoted with a strikethrough. Except as set forth below, the information set forth in the Schedule
14D-9 remains unchanged and is incorporated herein by reference as relevant to the items in this Amendment No. 1.
ITEM 3. PAST CONTACTS, TRANSACTIONS,
NEGOTIATIONS AND AGREEMENTS
Item 3 of the Schedule 14D-9 is hereby amended
and supplemented as follows:
The second paragraph on page 2 of the Schedule
14D-9 is amended and supplemented as follows:
The Offer is conditioned
upon the satisfaction or waiver of certain customary conditions, including, among others: (i) that there have been validly tendered
pursuant to the Offer, and not properly withdrawn (excluding Shares tendered pursuant to guaranteed delivery procedures that have not
yet been delivered in settlement or satisfaction of such guarantee prior to the Expiration Time), a number of Shares that, together with
the Shares then owned by Buyer or its affiliates, represents at least 80% of LAVA’s issued and outstanding share capital (geplaatst
en uitstaand kapitaal) immediately prior to the Expiration Time (the “Minimum Condition”), provided that the Minimum
Condition may be reduced to 75% in certain circumstances specified in the Purchase Agreement and described
on page 4 below; (ii) that there is not in effect any applicable law or order (whether temporary, preliminary or permanent)
entered, enacted, promulgated, enforced, or issued by any court or other governmental authority of competent jurisdiction prohibiting,
rendering illegal, or enjoining the consummation of the transactions contemplated by the Purchase Agreement (the “Transactions”);
(iii) the accuracy of representations and warranties made by LAVA in the Purchase Agreement, including that, since the date of the
Purchase Agreement, there shall not have occurred any Company Material Adverse Effect (as defined in the Purchase Agreement); (iv) compliance
in all material respects by LAVA with its obligations under the Purchase Agreement; (v) that no effect, event, fact, change, development
or occurrence has occurred following the date of the Purchase Agreement that has had or would reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect; (vi) that at the extraordinary general meeting (or a subsequent extraordinary
general meeting) of LAVA shareholders, the LAVA shareholders have adopted resolutions related to appointment of Buyer’s designees
to the LAVA Board (as defined below) and certain transactions pursuant to the Purchase Agreement; (vii) the Closing Net Cash (as
defined in the Purchase Agreement) shall be no less than the amount specified in the Purchase Agreement; and (viii) no termination
of the Purchase Agreement (each individually, an “Offer Condition,” and collectively, the “Offer Conditions”).
The obligations of Buyer to consummate the Offer under the Purchase Agreement are not subject to a financing condition. A copy of the
Purchase Agreement is filed as Exhibit (e)(1) to this Schedule 14D-9 and is incorporated herein by reference.
Adding a new paragraph as the second paragraph
of page 4, as follows:
Notwithstanding
any other term of the Offer or the Purchase Agreement, Buyer shall not be required to accept for payment or, subject to any applicable
rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to Buyer’s obligation to pay for or return
tendered Shares promptly after the termination or withdrawal of the Offer), pay for any Shares tendered pursuant to the Offer or during
the Subsequent Offering Period (and not theretofore accepted for payment or paid for) unless there shall have been validly tendered in
the Offer (and not properly withdrawn) prior to the expiration of the Offer that number of Shares that, represent at least the Minimum
Condition; provided that that if (i) all of the Offer Conditions other than the Minimum Condition have been satisfied or waived in accordance
with the Purchase Agreement, and (ii) Buyer has extended the Offer on three (3) or more occasions in consecutive periods of ten (10) Business
Days each in accordance with the Purchase Agreement, then in such case Buyer may, its sole discretion, reduce the Minimum Condition from
80% to 75%.
The first paragraph under the heading entitled
“Form of Tender and Support Agreement” on page 7 of the Schedule 14D-9 is amended and supplemented as follows:
In connection
with the execution of the Purchase Agreement, on August 3, 2025, following approval thereof by the LAVA Board, Buyer entered into
tender and support agreements (each, a “Support Agreement”) with Stephen Hurly,
Jay Backstrom, Kapil Dhingra, Amy Garabedian, Peter Kiener, Charles Morris, James Noble, Christy Oliger, Fred Powell, Mary Wadlinger,
and Karen Wilson, who collectively comprise all of the Company’s executive officers and directors (collectively,
the “Support Agreement Parties”). The Support Agreements provide that, among other things, the Support Agreement Parties
irrevocably tender the Shares held by them in the Offer, upon the terms and subject to the conditions of such agreements. The Shares subject
to the Support Agreements comprise approximately 0.5% of the outstanding Shares as of August 3, 2025. The Support Agreements will
terminate upon certain circumstances, including upon termination of the Purchase Agreement or if the LAVA Board votes to approve a superior
proposal or a change in the recommendation of the LAVA Board with respect to certain intervening events.
The second paragraph under the heading
entitled “Treatment of Equity Awards in the Transactions” on page 9 of the Schedule 14D-9 is amended and supplemented as
follows:
The table below
sets forth, for each of LAVA’s executive officers and non-employee directors holding LAVA Options as of March
1, 2024 August 14, 2025, the aggregate number of Shares subject
to such In-the-Money Options and the value of cash amounts payable in respect of such In-the-Money Options at the Merger Effective Time,
calculated by multiplying the excess, if applicable, of the Cash Amount over the respective per Share exercise prices of the applicable
In-the-Money Options by the number of Shares subject to such In-the-Money Options (which amounts will be subject to withholding of taxes),
assuming the maximum potential Cash Amount of $1.24 per Share. No amounts have been included in the table below with respect to the CVRs
to be received by LAVA’s executive officers and directors in respect of their In-the-Money Options however, each LAVA executive
officer and non-employee director listed below will receive one (1) CVR for each Share subject to an outstanding In-the-Money Option.
ITEM 4. THE
SOLICITATION OR RECOMMENDATION
Item 4 of the Schedule 14D-9 is hereby amended
and supplemented as follows:
The third bullet under the subheading entitled
“Reasons for the Recommendation of the LAVA Board” on page 25 of the Schedule 14D-9 is amended and supplemented as follows:
| · | Best Value. The belief of the LAVA Board that as a result of the LAVA Board’s and the Special
Committee’s extensive strategic review process and negotiation of the terms of the Transaction, LAVA had obtained an offer that
was Buyer’s best offer and in that it
provided an Offer Consideration that, as of the date of the Purchase Agreement, represented the highest price reasonably
obtainable by the Company under the circumstances, as well as maximum capital return, no financial
risks and a high degree of deal certainty to the Company’s shareholders. In light of the Company’s lack of a viable standalone
business plan, the LAVA Board determined dissolution to be the most likely alternative for the Company to pursue outside of the Offer
and Post-Offer Reorganization. The expected value of liquidation distributions per share (as more fully described under in this Item 4
under the heading “LAVA Management Dissolution Analysis”) was therefore a more accurate measure of the Company’s
value per Share than the prevailing market price per Share. The Cash Amount of $1.16 - $1.24 per Share represented a premium to the expected
liquidation distributions of $1.10 per Share, and the CVRs also would allow such shareholders to potentially receive additional payments
in the future. |
The sixth bullet under the subheading entitled
“Reasons for the Recommendation of the LAVA Board” on page 25 of the Schedule 14D-9 is amended and supplemented as follows:
| · | Prospects of the Company on a Standalone Basis. The LAVA Board’s
After a thorough assessment of the assets, liabilities and financial
condition of the Company on a standalone basis, particularly in light of the Company’s workforce
reductions and wind-down of clinical trials over the course the last two years,
which precipitated workforce reductions, the LAVA Board concluded that the Company did not have a viable standalone business plan, and
that the Company’s only alternative in the absence of a sale or merger would be to pursue a dissolution and liquidation of the Company; |
The section entitled “Dissolution
Analysis” on page 29 of the Schedule 14D-9 is supplemented by adding the following language as the final paragraph of such section:
The
dissolution analysis included in this Schedule 14D-9 has been prepared by, and is the responsibility of, LAVA’s management. PricewaterhouseCoopers
N.V. has not audited, reviewed, examined, compiled nor applied agreed-upon procedures with respect to the accompanying dissolution analysis
prospective financial information and, accordingly, PricewaterhouseCoopers N.V. does not express an opinion or any other form
of assurance with respect thereto.
The third paragraph under the heading entitled
“Opinion of Leerink Partners LLC” on page 30 of the Schedule 14D-9 is amended and supplemented as follows:
The full
text of the written opinion of Leerink Partners, dated August 3, 2025, which describes the assumptions made, and the qualifications
and limitations upon the review undertaken by Leerink Partners in preparing its opinion, is attached as Annex I and is incorporated herein
by reference. The summary of the written opinion of Leerink Partners set forth below is qualified in its entirety by the full text of
the written opinion attached hereto as Annex I. Although the written opinion of Leerink Partners
attached hereto as Annex I and the summary set forth below do not purport to describe all work performed and information considered by
Leerink Partners, all material studies and analyses performed by Leerink Partners are described herein. Leerink Partners’
financial advisory services and opinion were provided for the information and assistance of the LAVA Board (in their capacity as directors
and not in any other capacity) in connection with and for purposes of the LAVA Board’s consideration of the Transaction and the
opinion of Leerink Partners addressed only the fairness, from a financial point of view, as of the date thereof, to the holders of Shares
of the Cash Amount proposed to be paid to such holders pursuant to the terms of the Purchase Agreement. The opinion of Leerink Partners
did not address any other term or aspect of the Purchase Agreement or the Transaction and does not constitute a recommendation to any
stockholder of LAVA as to whether or not such holder should tender Shares in connection with the Offer, or how such stockholder should
vote (if applicable) with respect to the Transaction or otherwise act with respect to the Transaction or any other matter:”
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.
Date: September 3,
2025
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LAVA Therapeutics,
N.V. |
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By: |
/s/ Stephen Hurly |
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Stephen
Hurly |
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Chief
Executive Officer and President |
