|
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 |
|
|
Index No.
|
| | | |
|
(d)(2)*
|
| | | |
|
(d)(3)*
|
| | | |
|
107*
|
| | |
| |
Mandatory publication pursuant to
Secs. 34, 14 paras. 2 and 3 of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz — “WpÜG”) |
| |
| | Securityholders of MorphoSys AG, in particular those who have their place of residence, seat or place of habitual abode in the United States of America or otherwise outside the Federal Republic of Germany, the Member States of the European Union and the European Economic Area should pay particular attention to the information contained in Sec. 1 (General information on the implementation of the takeover offer) and Sec. 6.8 (Possible future acquisitions of MorphoSys Shares) of the Offer Document. | | |
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Year ended 31 December
|
| |
Average Rate
|
| |||
2023
|
| | | | 0.9238 | | |
2022
|
| | | | 0.9526 | | |
2021
|
| | | | 0.8489 | | |
2020
|
| | | | 0.8727 | | |
2019
|
| | | | 0.8943 | | |
Month ended
|
| |
Low
|
| |
High
|
| ||||||
March 2024
|
| | | | 0.9137 | | | | | | 0.9267 | | |
February 2024
|
| | | | 0.9204 | | | | | | 0.9328 | | |
January 2024
|
| | | | 0.9111 | | | | | | 0.9523 | | |
December 2023
|
| | | | 0.8998 | | | | | | 0.9306 | | |
November 2023
|
| | | | 0.9085 | | | | | | 0.9489 | | |
October 2023
|
| | | | 0.9393 | | | | | | 0.9567 | | |
September 2023
|
| | | | 0.9270 | | | | | | 0.9515 | | |
| |
Bidder:
|
| |
Novartis BidCo AG
Lichtstrasse 35 4056 Basel Switzerland Telephone: +41 61 324 1111 |
| |
| |
Target Company:
|
| |
MorphoSys AG
Semmelweisstraße 7 82152 Planegg Federal Republic of Germany Telephone: +49 89-89927-0 |
| |
| |
Subject of the Offer:
|
| | Acquisition of all MorphoSys Shares not held directly by the Bidder, including all ancillary rights, in particular the right to dividends, existing at the time of the settlement of the Offer. | | |
| |
Offer Price:
|
| | EUR 68.00 per MorphoSys Share. | | |
| |
Acceptance Period:
|
| | 11 April 2024 through 13 May 2024, 24:00 hours (Frankfurt am Main local time) / 18:00 hours (New York local time). | | |
| |
Additional Acceptance Period:
|
| | The Additional Acceptance Period (as defined in Sec. 5.3 of the Offer Document) is expected to begin on 17 May 2024 and expire on 30 May 2024, 24:00 hours (Frankfurt am Main local time) / 18:00 hours (New York local time). | | |
| |
Offer Conditions:
|
| |
The Offer and the contracts which come into existence by the acceptance thereof are subject to the Offer Conditions (as defined in Sec. 12.1 of the Offer Document).
The Offer will lapse and the contracts which come into existence as a result of accepting the Offer will not be consummated and will cease to exist (conditions subsequent) if the Offer Conditions have not been satisfied in time and have not been effectively waived by the Bidder in advance.
The Offer Conditions can be summarized as follows:
|
| |
| | | | |
Minimum Acceptance:
As further specified in Sec. 12.1.1 of the Offer Document, as of the expiration of the Acceptance Period, the sum of the MorphoSys Shares (including MorphoSys Shares that are represented by MorphoSys ADSs),
(a)
for which the acceptance of the Offer has been effectively declared in accordance with Sec. 13.1.2 of the Offer Document and for which no withdrawal of the agreement entered into as a result of the acceptance of the Offer has been effectively declared;
(b)
for which the acceptance of the Offer has been declared during the Acceptance Period but only becomes effective after the end of the Acceptance Period by re-booking the MorphoSys Shares to ISIN DE000A4BGGU0 in accordance with Secs. 13.3.2 and 13.3.3 of the Offer Document;
(c)
directly held by the Bidder or a person acting jointly with the Bidder pursuant to Sec. 2 para. 5 WpÜG;
(d)
attributable to the Bidder or a person acting jointly with the Bidder pursuant to Sec. 2 para. 5 WpÜG pursuant to Sec. 30 WpÜG; and/or
|
| |
| | | | |
(e)
for which the Bidder or persons acting jointly with the Bidder within the meaning of Sec. 2 para. 5 WpÜG have concluded an unconditional or conditional agreement outside of the Offer which entitles them to demand the transfer of title to these MorphoSys Shares (including MorphoSys Shares that are represented by MorphoSys ADSs) within the meaning of Sec. 31 para. 6 WpÜG
equals at least 65% of the number of MorphoSys Shares, other than treasury shares (eigene Aktien) issued as of the expiration of the Acceptance Period. Based on the number of MorphoSys Shares currently outstanding and the number of MorphoSys treasury shares currently held, this corresponds to 24,480,780 MorphoSys Shares.
MorphoSys Shares which are subject to several of the preceding paras. (a) to (e) will be taken into account only once.
|
| |
| | | | |
No Insolvency Proceedings:
As further specified in Sec. 12.1.2 of the Offer Document, MorphoSys did not publish an Ad Hoc Announcement (as defined in Sec. 12.1.2 of the Offer Document) during the Acceptance Period stating that insolvency proceedings against all or substantially all of the assets of MorphoSys have been filed by MorphoSys or opened by the competent court in Munich, Germany; or a reason has arisen that would require the filing of an application for the institution of an insolvency proceeding under applicable law.
|
| |
| | | | |
No Prohibition or Illegality of the Offer:
As further specified in Sec. 12.1.3 of the Offer Document, during the Acceptance Period no Law, administrative act, injunction, temporary restraining order, preliminary or permanent injunction, or other order issued by a Specified Governmental Authority (as defined in Sec. 12.1.3 of the Offer Document) prohibits or makes illegal the conduct or consummation of the Offer in accordance with its terms and conditions or the acquisition of ownership of MorphoSys Shares by the Bidder.
|
| |
| | | | |
No Material Compliance Violation:
As further specified in Sec. 12.1.4 of the Offer Document, no Material Compliance Violation (as defined in Sec. 12.1.4 of the Offer Document) has occurred during the Acceptance Period.
|
| |
| | | | |
If the Offer Conditions (as defined and set forth in Sec. 12.1 of the Offer Document) either have not been satisfied by the applicable date for the evaluation of such Offer Condition or have definitively lapsed before these applicable dates and the Bidder has not effectively waived them in advance, the Offer will lapse. In this case, the contracts which come into existence as a result of accepting the Offer will cease to exist and will not be consummated (conditions subsequent), as further specified in Sec. 12.3 of the Offer Document.
If the Bidder waives an Offer Condition or reduces the minimum percentage of MorphoSys Shares on the acquisition of which the validity of the Offer is to be conditional (as described in Sec. 8.2.14
|
| |
| | | | | of the Offer Document), the Bidder will publish an amendment to the Offer Document in accordance with the WpÜG and, if and to the extent required by the U.S. Offer Rules, disseminate additional Offer materials and thereby trigger a statutory extension of the Acceptance Period for the Offer, if applicable. | | |
| |
ISIN:
|
| |
MorphoSys Shares: ISIN DE0006632003.
MorphoSys ADSs: ISIN US6177602025.
Tendered MorphoSys Shares: ISIN DE000A4BGGU0
Subsequently Tendered MorphoSys Shares: ISIN DE000A4BGGV8.
|
| |
| |
Acceptance of the Offer for MorphoSys Shares:
|
| | Acceptance of the Offer is to be declared in writing or in text form by the respective MorphoSys Shareholder during the Acceptance Period or the Additional Acceptance Period to the Custodian Bank (as defined in Sec. 13.1.2 of the Offer Document). It will not become valid until timely booking of the MorphoSys Shares for which the Offer has been accepted during the Acceptance Period into ISIN DE000A4BGGU0 (any such MorphoSys Shares, the “Tendered MorphoSys Shares”) or during the Additional Acceptance Period into ISIN DE000A4BGGV8 (any such MorphoSys Shares, the “Subsequently Tendered MorphoSys Shares”). | | |
| | | | | Until the settlement of the Offer pursuant to the terms and conditions of the Offer Document, the Tendered and Subsequently Tendered MorphoSys Shares for which the declaration of acceptance has taken effect will remain in the securities account of the MorphoSys Shareholder accepting the Offer. | | |
| |
Acceptance of the Offer for MorphoSys Shares represented by MorphoSys ADSs:
|
| | Acceptances of the Offer for MorphoSys Shares represented by MorphoSys ADSs can be declared to the ADS Tender Agent (as defined in Sec. 13.3.1 of the Offer Document) using one of the procedures described in Sec. 13.3 of the Offer Document or by surrendering MorphoSys ADSs to receive MorphoSys Shares to tender in the Offer as described in Sec. 13.2 of the Offer Document. | | |
| |
Costs of Acceptance:
|
| |
Acceptance of the Offer according to the provisions in Sec. 13.1.8 of the Offer Document shall be free of any charges, costs and banking or brokers’ commissions for the accepting MorphoSys Shareholders, other than payment of any applicable fees, charges or expenses of the Custodian Banks (except for the costs for transmitting the Declaration of Acceptance to the relevant Custodian Bank). Any exchange, sales taxes or stamp duty resulting from the acceptance of the Offer will be borne by the Bidder.
According to the provisions in Sec. 13.3.7 of the Offer Document, MorphoSys ADS Holders who hold their MorphoSys ADS through a broker or other securities intermediary and whose broker or other securities intermediary accepts the Bidder’s Offer on the MorphoSys ADS Holders behalf, may be charged a fee. MorphoSys ADS Holders who accept the Bidder’s Offer to acquire the MorphoSys Shares represented by their MorphoSys ADSs directly will not be charged brokerage fees. Any stock exchange tax, sales tax or stamp tax, resulting from acceptance of the Offer will be borne by the Bidder. The fee to be paid to the ADS Depositary for the cancellation of the MorphoSys ADSs (USD 0.05 per
|
| |
| | | | | MorphoSys ADS) will be borne by the Bidder. The amount paid by the ADS Tender Agent to tendering MorphoSys ADS Holders will also be net of any other applicable fees and expenses and any required withholding in respect of U.S. income tax. | | |
| |
Right of Withdrawal:
|
| |
MorphoSys Securityholders who accept the Offer during the Acceptance Period may withdraw their declared acceptance in respect of their tendered MorphoSys Securities at any time until the end of the Acceptance Period without having to give any reason. MorphoSys Securityholders who have exercised their right of withdrawal may re-accept the Offer prior to the end of the Acceptance Period and/or Additional Acceptance Period as described in the Offer Document.
Notwithstanding this, the following statutory withdrawal rights exist prior to the end of the Acceptance Period:
•
In the event of an amendment of the Offer pursuant to Sec. 21 para. 1 WpÜG, MorphoSys Securityholders may, at any time until the end of the Acceptance Period, withdraw from the contracts entered into as a result of acceptance of the Offer if and to the extent that they have accepted the Offer prior to the publication of the amendment of the Offer (pursuant to Sec. 21 para. 4 WpÜG); and
•
In the event of a Competing Offer pursuant to Sec. 22 para. 1 WpÜG (as defined in Sec. 5.2 of the Offer Document), MorphoSys Securityholders may, at any time until the end of the Acceptance Period, withdraw from the contracts entered into as a result of acceptance of the Offer if and to the extent that they have accepted the Offer prior to publication of the offer document for the Competing Offer (Sec. 22 para. 3 WpÜG).
Additional information regarding rights of withdrawal is included in Sec. 17 of the Offer Document.
|
| |
| |
Stock Exchange Trading:
|
| |
The Tendered MorphoSys Shares may be traded, in accordance with the more detailed provisions of Sec. 13.1.9 of the Offer Document, on the regulated market of the FSE (Prime Standard) under ISIN DE000A4BGGU0. Trading is expected to start on the third (3rd) FSE Trading Day after the commencement of the Acceptance Period. There is no guarantee that such trading will in fact take place after the commencement of the Acceptance Period. Trading is expected to continue until one (1) FSE Trading Day following expiration of the Acceptance Period.
The shares that are tendered as Subsequently Tendered MorphoSys Shares with ISIN DE000A4BGGV8 will not be tradeable.
MorphoSys Shares represented by MorphoSys ADSs that are tendered in the Offer may not be traded. MorphoSys ADSs that are tendered in the Offer and the MorphoSys Shares represented thereby will be blocked until the Offer is consummated or terminated or the tendered ADSs are withdrawn.
|
| |
| |
Publications:
|
| | The Offer Document, the publication of which was permitted by BaFin on 11 April 2024, is published on 11 April 2024 in German by way of (i) announcement on the internet at www.novartis.com/investors/morphosys-acquisition and (ii) keeping | | |
| | | | |
available copies of the Offer Document free of charge at Deutsche Bank Aktiengesellschaft, TAS, Post-IPO Services, Taunusanlage 12, 60325 Frankfurt am Main, Germany (requests to obtain a copy of the Offer Document to be made via e-mail to dct.tender-offers@db.com or by fax to +49 69 910 38794 indicating a valid mailing address). The announcement about keeping available copies of the Offer Document free of charge in the Federal Republic of Germany and the internet address at which the publication of the Offer Document occurs will be published on 11 April 2024 in the German Federal Gazette (Bundesanzeiger).
In the United States, the corresponding announcement will be made in The New York Times (U.S. Edition). In addition, the Bidder intends to mail the English translation of the Offer Document to all MorphoSys ADS Holders.
Further, the Offer Document is published by including an English language version of the Offer Document as part of the Schedule TO (as defined in Sec. 1.5 of the Offer Document). The English language version of the Offer Document, which has not been reviewed by BaFin, has also been made available at www.novartis.com/investors/morphosys-acquisition.
|
| |
| | | | |
All announcements and publications in relation to the Offer required under the WpÜG are published on the internet at www.novartis.com/investors/morphosys-acquisition (in German together with an English translation).
Announcements and publications in relation to the Offer required under the WpÜG are also published in German in the German Federal Gazette (Bundesanzeiger). In addition, the Schedule TO (as defined in Sec. 1.5 of the Offer Document) that the Bidder and Novartis AG have filed with the SEC, of which the Offer Document forms a part, exhibits to the Schedule TO and other information that the Bidder has filed electronically with the SEC may be obtained free of charge at the SEC’s website at https://www.sec.gov/edgar/browse/?CIK=11144485, at the Bidder’s website at www.novartis.com/investors/morphosys-acquisition or by contacting the Bidder’s investor relations department at the telephone number +41 61 324 7944.
|
| |
| |
Settlement:
|
| |
With regard to the Tendered MorphoSys Shares, payment of the Offer Price will be effected without undue delay, at the latest on the fourth (4th) Banking Day after publication of the tender results after the end of the Acceptance Period pursuant to Sec. 23 para. 1 no. 2 WpÜG, in accordance with Sec. 13.1.5 of the Offer Document and subject to the timely fulfillment of the Offer Conditions set out in Sec. 12.1 of the Offer Document, unless the Bidder has previously effectively waived the relevant Offer Condition pursuant to Sec. 21 para. 1 sentence 1 no. 4 WpÜG.
With regard to the Subsequently Tendered MorphoSys Shares, payment of the Offer Price will be effected without undue delay, at the latest on the fourth (4th) Banking Day after publication of the tender results after the end of the Additional Acceptance Period
|
| |
| | | | | pursuant to Sec. 23 para. 1 no. 3 WpÜG, in accordance with Sec. 13.1.7 of the Offer Document. | | |
| |
Settlement of MorphoSys Shares represented by MorphoSys ADSs
|
| |
The Bidder shall, with respect to the MorphoSys Shares represented by MorphoSys ADSs properly tendered for sale during the Acceptance Period and not validly withdrawn, pay the Offer Price to the ADS Tender Agent’s cash account in Germany via Clearstream without undue delay, however no later than on the fourth (4th) Banking Day, following the publication of the tender results pursuant to Sec. 23 para. 1 no. 2 WpÜG after the expiration of the Acceptance Period.
The Bidder shall, with respect to the MorphoSys Shares represented by MorphoSys ADSs properly tendered for sale during the Additional Acceptance Period, pay the Offer Price to the ADS Tender Agent’s cash account in Germany via Clearstream without undue delay, however no later than on the fourth (4th) Banking Day, following the publication of the tender results pursuant to Sec. 23 para. 1 no. 3 WpÜG after the expiration of the Additional Acceptance Period.
Upon crediting of the Offer Price to the ADS Tender Agent’s cash account in Germany via Clearstream, the Bidder will have fulfilled its obligation to pay the Offer Price with respect to the MorphoSys Shares represented by MorphoSys ADSs properly tendered for sale. It is the ADS Tender Agent’s responsibility to transfer without undue delay the Offer Price to the MorphoSys ADS Holders that tendered into the Offer. For details see Sec. 13.3 of the Offer Document.
|
| |
| |
Certain U.S. Federal Income Tax Considerations
|
| |
The receipt of the Offer Price in respect of MorphoSys Securities pursuant to the Offer will generally be a taxable transaction for U.S. federal income tax purposes and may also be a taxable transaction under applicable state, local or non-U.S. income or other tax laws.
All MorphoSys Securityholders are urged to consult their tax advisors as to the particular tax consequences to them of the Offer.
See Sec. 20.1 and 13.3.7 of the Offer Document for a more detailed discussion of certain U.S. federal income tax considerations that may be relevant to tendering MorphoSys Securityholders.
|
| |
| |
Certain German Tax Consequences
|
| |
The receipt of the Offer Price in respect of MorphoSys Securities pursuant to the Offer will typically be a taxable transaction for German income tax purposes and may also be a taxable transaction under applicable non-German tax laws.
All MorphoSys Securityholders are urged to consult their own tax advisors as to the particular tax consequences to them of the Offer.
See Sec. 20.2 of the Offer Document for a more detailed discussion of material German tax consequences for tendering MorphoSys Securityholders.
|
| |
| | |
Direct or indirect
holdings in MorphoSys |
| |||
Shareholders
|
| |
Share(1)
|
| |||
The Goldman Sachs Group, Inc.
|
| | | | 14.55 % | | |
UBS Group AG
|
| | | | 12.74 % | | |
Morgan Stanley
|
| | | | 12.38 % | | |
Yue Tang
|
| | | | 11.12 % | | |
JPMorgan Chase & Co.
|
| | | | 10.07 % | | |
Barclays Capital Securities Limited
|
| | | | 7.91 % | | |
Bank of America Corporation
|
| | | | 6.80 % | | |
Kynam Global Healthcare Offshore Fund, Ltd
|
| | | | 5.33 % | | |
| | |
Direct or indirect
holdings in MorphoSys |
| |||
Shareholders
|
| |
Share(1)
|
| |||
BlackRock, Inc.
|
| | | | 5.29 % | | |
Pablo Legoretta
|
| | | | 3.91 % | | |
DWS Investments GmbH
|
| | | | 4.34 % | | |
Royalty Pharma PLC
|
| | | | 3.91 % | | |
| | |
Price of a MorphoSys
Share in EUR |
| |
Price of a MorphoSys
ADS in USD |
| ||||||||||||||||||
| | |
High
|
| |
Low
|
| |
High
|
| |
Low
|
| ||||||||||||
2022 | | | | | | | | | | | | | | | | | | | | | | | | | |
1st Quarter
|
| | | | 34.26 | | | | | | 21.55 | | | | | | 9.73 | | | | | | 5.87 | | |
2nd Quarter
|
| | | | 26.91 | | | | | | 17.27 | | | | | | 7.39 | | | | | | 4.52 | | |
3rd Quarter
|
| | | | 24.03 | | | | | | 16.54 | | | | | | 6.14 | | | | | | 4.14 | | |
4th Quarter
|
| | | | 23.35 | | | | | | 12.05 | | | | | | 5.74 | | | | | | 3.21 | | |
2023 | | | | | | | | | | | | | | | | | | | | | | | | | |
1st Quarter
|
| | | | 19.33 | | | | | | 13.21 | | | | | | 5.22 | | | | | | 3.56 | | |
2nd Quarter
|
| | | | 28.00 | | | | | | 14.46 | | | | | | 7.74 | | | | | | 3.95 | | |
3rd Quarter
|
| | | | 31.13 | | | | | | 25.83 | | | | | | 8.60 | | | | | | 6.72 | | |
4th Quarter
|
| | | | 35.40 | | | | | | 16.09 | | | | | | 9.90 | | | | | | 4.55 | | |
2024 | | | | | | | | | | | | | | | | | | | | | | | | | |
1st Quarter
|
| | | | 67.22 | | | | | | 30.75 | | | | | | 18.18 | | | | | | 8.60 | | |
2nd Quarter (until 4 April 2024)
|
| | | | 67,25 | | | | | | 67,29 | | | | | | 18,11 | | | | | | 18,06 | | |
|
Recommendations of research analysts until 4 February 2024
|
| |||||||||
|
Broker
|
| |
Date of
analysis |
| |
MorphoSys
Target Price |
| |
Recommendation
|
|
| Morgan Stanley | | |
02-Feb-24
|
| |
EUR 38.00
|
| |
Hold
|
|
| EQUI.TS | | |
31-Jan-24
|
| |
EUR 44.00
|
| |
Hold
|
|
| Goldman Sachs | | |
30-Jan-24
|
| |
EUR 18.00
|
| |
Hold
|
|
| Citi | | |
30-Jan-24
|
| |
EUR 15.00
|
| |
Sell
|
|
| Landesbank Baden-Württemberg | | |
30-Jan-24
|
| |
EUR 40.00
|
| |
Hold
|
|
| Leerink Partners | | |
30-Jan-24
|
| |
EUR 22.00
|
| |
Hold
|
|
| UBS AG | | |
30-Jan-24
|
| |
EUR 47.00
|
| |
Buy
|
|
| Deutsche Bank | | |
10-Jan-24
|
| |
EUR 25.00
|
| |
Hold
|
|
| Van Lanschot Kempen & Co | | |
21-Dec-23
|
| |
EUR 11.00
|
| |
Sell
|
|
| Wells Fargo | | |
14-Dec-23
|
| |
EUR 62.10
|
| |
Buy
|
|
| JP Morgan | | |
05-Dec-23
|
| |
EUR 31.00
|
| |
Buy
|
|
|
FMR Frankfurt Main Research AG
|
| |
22-Dec-23
|
| |
EUR 39.00
|
| |
Buy
|
|
| Oddo BHF | | |
21-Nov-23
|
| |
EUR 33.50
|
| |
Buy
|
|
| Average | | | | | |
EUR 32.74
|
| | | |
|
Registered, Certified or Express Mail
The Bank of New York Mellon
Attn: Voluntary Corporate Actions, COY: MPSB P.O. Box 43011 Providence, RI 02940-3011 United States |
| |
By Overnight Courier
The Bank of New York Mellon
Attn: Voluntary Corporate Actions, COY: MPSB 150 Royal Street, Suite V Canton, MA 02021 United States |
|
|
E-Mail (for notices of guaranteed delivery only): canoticeofguarantee@computershare.com
|
|
In millions of EUR (EURm)
|
| |
Bidder balance
sheet as of 31 December 2023 |
| |
Changes through
Debt and Equity Funding |
| |
Changes
through Offer |
| |
Bidder balance
sheet after completion of the Takeover |
| ||||||||||||
ASSETS | | | | | | | | | | | | | | | | | | | | | | | | | |
Financial investments
|
| | | | 0 | | | | | | 0 | | | | | | 2,565 | | | | | | 2,565 | | |
Cash and cash equivalents
|
| | | | 0 | | | | | | 2,672 | | | | | | -2,565 | | | | | | 107 | | |
Other assets
|
| | | | 3 | | | | | | 0 | | | | | | 0 | | | | | | 3 | | |
Total assets
|
| | | | 3 | | | | | | 2,672 | | | | | | 0 | | | | | | 2,675 | | |
EQUITY AND LIABILITIES | | | | | | | | | | | | | | | | | | | | | | | | | |
Equity
|
| | | | 1 | | | | | | 107 | | | | | | 0 | | | | | | 108 | | |
Liabilities
|
| | | | 2 | | | | | | 2,565 | | | | | | 0 | | | | | | 2,567 | | |
Total equity and liabilities
|
| | | | 3 | | | | | | 2,672 | | | | | | 0 | | | | | | 2,675 | | |
In millions of EUR (EURm)
|
| |
Novartis AG balance
sheet as of 31 December 2023 |
| |
Changes
through Offer |
| |
Novartis AG balance
sheet after completion of the Takeover |
| |||||||||
ASSETS | | | | | | | | | | | | | | | | | | | |
Non-current assets
|
| | | | 62,795 | | | | | | 3,728 | | | | | | 66,523 | | |
Current assets
|
| | | | 27,555 | | | | | | -1,772 | | | | | | 25,783 | | |
Total assets
|
| | | | 90,350 | | | | | | 1,956 | | | | | | 92,306 | | |
EQUITY AND LIABILITIES | | | | | | | | | | | | | | | | | | | |
Equity
|
| | | | 42,262 | | | | | | -21 | | | | | | 42,241 | | |
Liabilities
|
| | | | 48,088 | | | | | | 1,977 | | | | | | 50,065 | | |
Total equity and liabilities
|
| | | | 90,350 | | | | | | 1,956 | | | | | | 92,306 | | |
Management Board members
|
| |
Aggregate No.
of MorphoSys PSUs (#)(1) |
| |
Resulting
Consideration (Capped)(2) |
| |
Resulting
Consideration (Uncapped)(3) |
| |||
Jean-Paul Kress, M.D.
|
| | | | 380,209 | | | |
EUR 16,517,420
|
| |
EUR 25,854,212
|
|
Lucinda Crabtree, Ph.D.
|
| | | | 28,571 | | | |
EUR 1,942,828
|
| |
EUR 1,942,828
|
|
Management Board members
|
| |
Cash Severance(1)
|
|
Jean-Paul Kress, M.D.
|
| |
EUR 2,204,858
|
|
Lucinda Crabtree, Ph.D.
|
| |
EUR 2,024,123
|
|
Management Board member
|
| |
Aggregate No.
of MorphoSys PSUs (#)(1) |
| |
Resulting
Converted Cash Award |
| |||
Jean-Paul Kress, M.D.
|
| | | | 98,484 | | | |
EUR 6,696,912
|
|
Lucinda Crabtree, Ph.D.
|
| | | | 26,262 | | | |
EUR 1,785,816
|
|
|
Daniel Weiss
|
| |
Christian Rehm
|
| |
Bertrand Bugnon
|
|
Name
|
| |
Registered Office
|
| |
Country
|
|
Novartis AG | | | Basel, Switzerland | | | Switzerland | |
Novartis Pharma AG | | | Basel, Switzerland | | | Switzerland | |
Name
|
| |
Registered Office
|
| |
Country
|
|
Novartis Argentina S.A. | | | Buenos Aires | | | Argentina | |
Novartis Australia Pty Ltd | | | Macquarie Park, New South Wales | | | Australia | |
Novartis Pharmaceuticals Australia Pty Ltd | | | Macquarie Park, New South Wales | | | Australia | |
Novartis Pharma GmbH | | | Wien | | | Austria | |
Novartis Pharmaceutical Manufacturing GmbH | | | Langkampfen / Schaftenau | | | Austria | |
Novartis Holding GmbH | | | Langkampfen / Schaftenau | | | Austria | |
Novartis (Bangladesh) Limited | | | Dhaka | | | Bangladesh | |
Novartis Pharma NV | | | Vilvoorde | | | Belgium | |
Alcon — Couvreur NV | | | Puurs | | | Belgium | |
IDB België BVBA | | | Vilvoorde | | | Belgium | |
Novartis Investment Ltd. | | | Hamilton | | | Bermuda | |
Triangle International Reinsurance Limited | | | Hamilton | | | Bermuda | |
Novartis Securities Investment Ltd. | | | Hamilton | | | Bermuda | |
Novartis Finance Services Ltd. | | | Hamilton | | | Bermuda | |
Trinity River Insurance Co Ltd. | | | Hamilton | | | Bermuda | |
Novartis BA d.o.o. | | | Sarajevo | | | Bosnia Herzegovina | |
Novartis Biociências S.A. | | | São Paulo | | | Brazil | |
Novartis Bulgaria EOOD | | | Sofia | | | Bulgaria | |
NOVARTIS CAMEROON SASU | | | Douala | | | Cameroon | |
Novartis Pharmaceuticals Canada Inc. | | | Montreal, Quebec | | | Canada | |
CIBA Vision Canada Inc. | | | Montreal, Quebec | | | Canada | |
Advanced Accelerator Applications Canada Inc. | | | Mississauga, Ontario | | | Canada | |
Chinook Therapeutics Canada, Inc. | | | Vancouver, British Columbia | | | Canada | |
Novartis Chile S.A. | | | Santiago de Chile | | | Chile | |
Beijing Novartis Pharma Co., Ltd. | | | Beijing | | | China | |
Shanghai Novartis Trading Ltd. | | | Shanghai | | | China | |
China Novartis Institutes for BioMedical Research Co., Ltd. | | | Shanghai | | | China | |
Name
|
| |
Registered Office
|
| |
Country
|
|
Suzhou Novartis Technical Development Co., Ltd. | | | Changshu / Jiangsu Province | | | China | |
Nuoshangchuanghe (Shanghai) Life Science and Technology Co. Ltd. | | | Shanghai | | | China | |
Novartis Pharmaceutical Technology Zhejiang Co., Ltd | | | Jiaxing | | | China | |
SanReno Therapeutics (Shanghai) Limited
|
| | Shanghai | | | China | |
Novartis de Colombia S.A. | | | Bogotá | | | Columbia | |
NOVARTIS COTE D`IVOIRE SASU | | | Abidjan | | | Cote d`Ivoire | |
Novartis Hrvatska d.o.o. | | | Zagreb | | | Croatia | |
Novartis s.r.o. | | | Praha | | | Czech Republic | |
Novartis Healthcare A/S | | | Copenhagen | | | Denmark | |
Novartis Caribe, S.A. | | | Santo Domingo | | |
Dominican Republic
|
|
Novartis Ecuador S.A. | | | Quito | | | Ecuador | |
Novartis Pharma S.A.E. | | | New Cairo City | | | Egypt | |
Novartis Finland Oy | | | Espoo | | | Finland | |
Novartis Groupe France S.A.S. | | | Rueil-Malmaison | | | France | |
Société Civile Immobilière de la Schiffmühle | | | Huningue | | | France | |
Novartis Pharma S.A.S. | | | Rueil — Malmaison | | | France | |
S.T.E.I.H. S.à r.l. | | | Huningue | | | France | |
Advanced Accelerator Applications S.A. | | | Rueil — Malmaison | | | France | |
Advanced Accelerator Applications Molecular Imaging France | | | Saint — Genis — Pouilly | | | France | |
Novartis Pharma Produktions GmbH | | | Wehr | | | Germany | |
Novartis Pharma GmbH | | | Nürnberg | | | Germany | |
Novartis Pharma Vertriebs GmbH | | | Nürnberg | | | Germany | |
Novartis Business Services GmbH | | | Wehr | | | Germany | |
Novartis Pharma Arzneimittel GmbH | | | Nürnberg | | | Germany | |
Advanced Accelerator Applications Germany GmbH | | | Bonn | | | Germany | |
Eifel Property GmbH | | | Bonn | | | Germany | |
Novartis Radiopharmaceuticals GmbH | | | Nürnberg | | | Germany | |
NOVARTIS GHANA LTD | | | Accra | | | Ghana | |
Novartis (Hellas) S.A.C.I. | | | Metamorphosis / Athens | | | Greece | |
Novartis Farmacéutica, S.A. (AC) | | | Ciudad de Guatemala | | | Guatemala | |
Novartis Pharmaceuticals (HK) Limited | | | Hong Kong | | | Hong Kong | |
SanReno Therapeutics (Hong Kong) Limited | | | Hong Kong | | | Hong Kong | |
Novartis Hungary Healthcare Limited Liability Company | | | Budapest | | | Hungary | |
Novartis India Limited | | | Mumbai | | | India | |
Novartis Healthcare Private Limited | | | Mumbai | | | India | |
Name
|
| |
Registered Office
|
| |
Country
|
|
Medicines Company (India) Private Limited | | | Gurgaon, Haryana | | | India | |
PT. Novartis Indonesia | | | Jakarta | | | Indonesia | |
PT. Sandoz Indonesia | | | Jakarta Timur | | | Indonesia | |
Novartis Ireland Limited | | | Dublin | | | Ireland | |
Novartis Integrated Services Limited | | | Ringaskiddy, County Cork | | | Ireland | |
Novartis Europharm Limited | | | Dublin | | | Ireland | |
Novartis Israel Ltd. | | | Tel Aviv | | | Israel | |
Marshall (R.R) Investment Ltd. | | | Beer Tuvia | | | Israel | |
Novartis Farma S.p.A. | | | Milano | | | Italy | |
Advanced Accelerator Applications (Italy) S.r.l. | | | Pozzilli | | | Italy | |
Advanced Accelerator Applications Molecular Imaging Italy S.r.l. | | | Pozzilli | | | Italy | |
Novartis Pharma K.K. | | | Tokyo | | | Japan | |
Ciba-Geigy Japan Limited | | | Tokyo | | | Japan | |
NVS Kenya Limited | | | Nairobi | | | Kenya | |
Novartis Kuwait Promotion of Products (SPC) | | | Kuwait | | | Kuwait | |
Novartis Baltics SIA | | | Riga | | | Latvia | |
Novartis Investments S.à r.l. | | | Luxembourg — Ville | | | Luxembourg | |
Novartis Finance S.A. | | | Luxembourg — Ville | | | Luxembourg | |
Novartis Corporation (Malaysia) Sdn. Bhd. | | |
Petaling Jaya / Selangor Darul Ehsan
|
| | Malaysia | |
Novartis Farmacéutica, S.A. de C.V. | | | Ciudad de México | | | Mexico | |
Novartis Pharma Maroc SA | | | Casablanca | | | Morocco | |
Novartis Netherlands B.V. | | | Amsterdam | | | Netherlands | |
Novartis Pharma B.V. | | | Amsterdam | | | Netherlands | |
IDB Holland BV | | | Baarle-Nassau | | | Netherlands | |
Aduro Netherlands Coöperatief U.A. | | | Rosmalen | | | Netherlands | |
Aduro Biotech, Europe B.V. | | | Rosmalen | | | Netherlands | |
Aduro Biotech Holdings Europe B.V . | | | Rosmalen | | | Netherlands | |
MDCO Holdings C.V. | | | Amsterdam | | | Netherlands | |
Calypso Biotech B.V. | | | Amsterdam | | | Netherlands | |
Novartis New Zealand Ltd | | | Auckland | | | New Zealand | |
Novartis Nigeria Limited | | | Ikeja, Lagos | | | Nigeria | |
Novartis Norge AS | | | Oslo | | | Norway | |
Novartis Pharma (Pakistan) Limited | | | Karachi | | | Pakistan | |
Novartis Pharma (Logistics), Inc. | | | Ciudad de Panamá | | | Panama | |
Novartis Panamá, S.A. | | | Ciudad de Panamá | | | Panama | |
Novartis Biosciences Perú S.A. | | | Lima | | | Peru | |
Novartis Healthcare Philippines, Inc. | | | Makati City | | | Philippines | |
Novartis Poland Sp. z o.o. | | | Warszawa | | | Poland | |
Name
|
| |
Registered Office
|
| |
Country
|
|
Advanced Accelerator Applications Polska Sp. z o.o. | | | Warszawa | | | Poland | |
Novartis Portugal, S.G.P.S., Lda. | | | Porto Salvo | | | Portugal | |
Novartis Farma — Produtos Farmacêuticos, S.A. | | | Porto Salvo | | | Portugal | |
Laboratório Normal-Produtos Farmacêuticos, Lda. | | | Porto Salvo | | | Portugal | |
Advanced Accelerator Applications Portugal Unipessoal, LDA. | | | Lisboa | | | Portugal | |
Sandoz S.R.L. | | | Targu-Mures | | | Romania | |
Novartis Pharma Services Romania S.R.L.
|
| | Bucharest | | | Romania | |
Novartis Pharma LLC | | | Moscow | | | Russian Federation | |
Novartis Neva LLC | | | St. Petersburg | | | Russian Federation | |
Novartis Saudi Company | | | Riyadh | | | Saudi Arabia | |
Novartis Regional Headquarter Company
|
| | Riyadh | | | Saudi Arabia | |
Novartis Senegal SASU | | | Dakar | | | Senegal | |
Novartis (Singapore) Pte Ltd. | | | Singapore Country | | | Singapore | |
Novartis Singapore Pharmaceutical Manufacturing Pte Ltd | | | Singapore Country | | | Singapore | |
Novartis Asia Pacific Pharmaceuticals Pte Ltd | | | Singapore Country | | | Singapore | |
Novartis Slovakia s.r.o. | | | Bratislava | | | Slovakia | |
Novartis farmacevtska proizvodnja d.o.o.
|
| | Ljubljana | | | Slovenia | |
Novartis South Africa (Pty) Ltd | | | Midrand, Gauteng | | | South Africa | |
Gesa Properties (Pty) Ltd | | | Midrand, Gauteng | | | South Africa | |
Novartis Korea Ltd. | | | Seoul | | | South Korea | |
Sandoz Korea Ltd. | | | Seoul | | | South Korea | |
Abadia Retuerta S.A. | | | Sardón de Duero / Valladolid | | | Spain | |
Novartis Farmacéutica, S.A. | | | Barcelona | | | Spain | |
Laboratorios Visfarm S.L. | | | Barcelona | | | Spain | |
Mizar Farmacéutica S.L. | | | Barcelona | | | Spain | |
Laus Farma S.L. | | | Barcelona | | | Spain | |
Artis-Pharma S.L. | | | Barcelona | | | Spain | |
Advanced Accelerator Applications Iberica, S. L. U. | | | Esplugues de Llobregat | | | Spain | |
Advanced Accelerator Applications Molecular Imaging Iberica, S.L.U. | | | Esplugues de Llobregat | | | Spain | |
Novartis Sverige AB | | | Stockholm | | | Sweden | |
Novartis Lateinamerika AG | | | Basel | | | Switzerland | |
Novartis International AG | | | Basel | | | Switzerland | |
Pharmanalytica SA | | | Locarno | | | Switzerland | |
Novartis Pharma Schweiz AG | | | Risch | | | Switzerland | |
Novartis Pharma Services AG | | | Basel | | | Switzerland | |
Novartis Pharma Stein AG | | | Stein | | | Switzerland | |
Name
|
| |
Registered Office
|
| |
Country
|
|
Novartis Pharma Schweizerhalle AG | | | Muttenz | | | Switzerland | |
Bad Schauenburg AG | | | Pratteln | | | Switzerland | |
Japat AG | | | Basel | | | Switzerland | |
Novartis Overseas Investments AG | | | Basel | | | Switzerland | |
Renor AG | | | Basel | | | Switzerland | |
ESBATech, a Novartis company GmbH | | | Basel | | | Switzerland | |
Novartis Holding AG | | | Basel | | | Switzerland | |
Novartis Bioventures AG | | | Basel | | | Switzerland | |
Novartis International Pharmaceutical Investment AG | | | Basel | | | Switzerland | |
Novartis Innovative Therapies AG | | | Risch | | | Switzerland | |
Advanced Accelerator Applications International SA | | | Genève | | | Switzerland | |
Calypso Biotech SA | | | Plan-les-Ouates | | | Switzerland | |
Novartis Kapital AG | | | Basel | | | Switzerland | |
Novartis (Taiwan) Co., Ltd. | | | Taipei | | | Taiwan | |
Novartis (Thailand) Limited | | | Bangkok | | | Thailand | |
Novartis Saglik, Gida ve Tarim Ürünleri Sanayi ve Ticaret A.S. | | | Istanbul | | | Turkey | |
Farmanova Saglik Hizmetleri Ltd. Sti. | | | Istanbul | | | Turkey | |
Novartis Ukraine, LLC | | | Kyiv | | | Ukraine | |
Novartis Middle East FZE | | | Dubai | | |
United Arab Emirates
|
|
Novartis UK Limited | | | London | | | United Kingdom | |
Novartis Pharmaceuticals UK Limited | | | London | | | United Kingdom | |
Novartis Europharm Limited | | | London | | | United Kingdom | |
Novartis Grimsby Limited | | | London | | | United Kingdom | |
Neutec Pharma Limited | | | London | | | United Kingdom | |
Ziarco Pharma Limited | | | London | | | United Kingdom | |
Ziarco Group Limited | | | London | | | United Kingdom | |
Advanced Accelerator Applications (UK & Ireland) | | | London | | | United Kingdom | |
GYROSCOPE THERAPEUTICS HOLDINGS PLC | | | Rolling Stock Yard, London | | | United Kingdom | |
GYROSCOPE THERAPEUTICS LIMITED | | | Rolling Stock Yard, London | | | United Kingdom | |
GYROSCOPE HOLDINGS (UK) LIMITED | | | Rolling Stock Yard, London | | | United Kingdom | |
Novartis Uruguay S.A. | | | Montevideo | | | Uruguay | |
Novartis Corporation | | | East Hanover, New Jersey | | | USA | |
Novartis Pharmaceuticals Corporation | | | East Hanover, New Jersey | | | USA | |
Novartis Services, Inc. | | | East Hanover, New Jersey | | | USA | |
Novartis Finance Corporation | | | East Hanover, New Jersey | | | USA | |
Novartis Institutes for BioMedical Research, Inc. | | | Cambridge, Massachusetts | | | USA | |
Name
|
| |
Registered Office
|
| |
Country
|
|
Novartis Capital Corporation | | | East Hanover, New Jersey | | | USA | |
Navigate BioPharma Services, Inc. | | | Carlsbad, California | | | USA | |
Ziarco, Inc. | | | Wilmington, Delaware | | | USA | |
Cadent Therapeutics, Inc. | | | Cambridge, Massachusetts | | | USA | |
Advanced Accelerator Applications USA, Inc. | | | Millburn, New Jersey | | | USA | |
57 E. Willow Street, LLC | | | Millburn, New Jersey | | | USA | |
Novartis Gene Therapies, Inc. | | | Bannockburn, Illinois | | | USA | |
Novartis Technology LLC | | | East Hanover, New Jersey | | | USA | |
Endocyte, Inc. | | | East Hanover, New Jersey | | | USA | |
The Medicines Company Holdings, Inc. | | | East Hanover, New Jersey | | | USA | |
The Medicines Company | | | East Hanover, New Jersey | | | USA | |
Amblyotech Inc. | | | East Hanover, New Jersey | | | USA | |
Novartis Manufacturing LLC | | | East Hanover, New Jersey | | | USA | |
DTX PHARMA, INC. | | | San Diego, California | | | USA | |
Chinook Therapeutics, Inc. | | | Seattle, Washington | | | USA | |
Chinook Therapeutics U.S., Inc. | | | Seattle, Washington | | | USA | |
IFM Due, Inc. | | | East Hanover, New Jersey | | | USA | |
Monza Merger Sub Inc. | | | East Hanover, New Jersey | | | USA | |
Novartis de Venezuela, S.A. | | | Caracas | | | Venezuela | |
Novartis Vietnam Company Limited | | | Ho Chi Minh City | | | Vietnam | |
|
Deutsche Bank
|
| |
|
|
|
Novartis BidCo AG Att.: David Quartner and Lukas Gilgen Lichtstraße 35 4056 Basel Schweiz |
| |
Deutsche Bank AG
Investment Bank Origination & Advisory
Mergers & Acquisitions
Mainzer Landstraße 11-17
60329 Frankfurt am Main
Carsten Laux
Tel. +49 69 910-33368 Mail: carsten.laux@db.com |
|
|
(signed)
Berthold Fuerst, Managing Director
|
| |
(signed)
Carsten Laux, Managing Director
|
|
Exhibit (a)(1)(B)
Voluntary Public Takeover Offer by Novartis BidCo AG, Basel, Switzerland, to the shareholders of MorphoSys AG, Planegg, Germany
Dear Client,
On 11 April 2024, Novartis BidCo AG (the „Bidder“) published the Offer Document pursuant to which it offers to all shareholders in MorphoSys AG („MorphoSys“) to acquire all their shares in MorphoSys („MorphoSys Shares“) pursuant to a voluntary public takeover offer (cash offer, subsequently the „Takeover Offer“) in the Internet at „www.novartis.com/investors/morphosys-acquisition“ as well as in the framework of the so-called Over-the-Counter-Publicity.
Within the Takeover Offer, the Bidder offers you to acquire your MorphoSys Shares against a payment of a cash consideration of € 68.00 per MorphoSys Share. The Takeover Offer is subject to the offer conditions described in Section 12.1 of the Offer Document. In case the offer conditions have not been fulfilled until the relevant date indicated in the Offer Document or have not been validly waived by one day prior to the end of the acceptance period, the Takeover Offer will lapse.
If you would like to accept the Takeover Offer, we kindly ask you to instruct us by returning the enclosed declaration of acceptance form to us as soon as possible, but not later than by· May 2024,· hours (CEST), to be received by us. If you do accept the Takeover Offer, we will initially keep your MorphoSys Shares in your account; however, we will transfer your MorphoSys Shares into the separate ISIN DE000A4BGGU0 at a 1 : 1 ratio. Upon closing of the Takeover Offer, we will withdraw the MorphoSys Shares from your account and will act in accordance with the measures outlined in Sections 13.1.2 and 13.1.3 of the Offer Document.
Without your instruction we will not take any action on your behalf.
Pursuant to the terms of the Offer Document, there will be the right to withdraw from the acceptance of the Takeover Offer until the end of the acceptance period, including any extension thereof. See Section 17 of the Offer Document for a more detailed description of those.
The receipt of the offer consideration is free of charges for you. The complete terms and conditions of the Takeover Offer are contained in the Offer Document which, as noted above, is available for download at „www.novartis.com/investors/morphosys-acquisition“. In addition, printed copies of the Offer Document can be obtained at Deutsche Bank AG, Taunusanlage 12, 60325 Frankfurt am Main (Fax +49-(0)69-910-38794, E-Mail dct.tender-offers@db.com), free of charge.
Best regards
[Custodian Bank]
Attachment |
- | Declaration of Acceptance Form |
Voluntary Public Takeover Offer by Novartis BidCo AG, Basel, Switzerland
Securities Account Number [·]
Ladies and Gentlemen:,
I/we accept the aforementioned voluntary public takeover offer for the acquisition of shares of MorphoSys AG (“MorphoSys”) published on 11 April 2024 with respect to
¨ | All shares of MorphoSys (ISIN DE0006632003) held in my/our account. | |
¨ | For pcs. of shares of MorphoSys (ISIN DE0006632003) held in my/our account. |
I/We hereby instruct you to first retain our tendered shares in MorphoSys in the abovementioned custody account but to immediately re-book such shares into ISIN DE000A4BGGU0 at a 1:1 ratio.
I/We have taken note of the contents of the Offer Document published on 11 April 2024 and hereby give our declarations listed under Section 13.1.2 and 13.1.3 of said Offer Document and grant the necessary instructions, orders and powers of attorney mentioned therein.
We ask the respective offer consideration in cash be credited in due course to our cash account held with you.
Place, Date | |
Signature(s) |
|
Number of MorphoSys ADSs to be Tendered:
MorphoSys ADSs*
|
| |
SIGN HERE
Signature(s)
|
|
| Account Number: | | |
Name(s)
|
|
| Dated: , 2024 | | |
Address(es)
|
|
| | | |
Area Code and Telephone Number
|
|
| | | |
Taxpayer Identification or Social Security Number
|
|
Exhibit (a)(1)(G)
This notice is neither an offer to purchase nor a solicitation of an offer to sell any Shares or ADSs (each as defined below). The Takeover Offer (as defined below) is made solely by the Offer Document (as defined below) and is being made to all holders of Shares, including those represented by ADSs. The Takeover Offer is being made pursuant to the German Securities Acquisition and Takeover Act (the “German Takeover Act”) and applicable U.S. securities laws, and the Bidder (as defined below) does not assume any responsibility for making any further announcement or registrations or for obtaining further licenses or approvals in respect of the Takeover Offer outside of Germany and the United States. The Bidder (as defined below) is not aware of any state where the making of the Takeover Offer is prohibited by any administrative or judicial action pursuant to any valid U.S. state statute. If the Bidder becomes aware of any valid U.S. state statute prohibiting the making of the Takeover Offer or the acceptance of the Shares, including Shares represented by ADSs, pursuant thereto, the Bidder will make a good faith effort to comply with that state statute or seek to have such statute declared inapplicable to the Takeover Offer. If, after a good faith effort, the Bidder cannot do so, the Bidder will not make the Takeover Offer to, nor will tenders be accepted from or on behalf of, the holders of Shares or ADSs in that state.
Notice of Offer to
Purchase for Cash
All No-Par Value Bearer Shares,
Including Those Represented by
American Depositary Shares, of
MorphoSys AG
at
EUR 68.00 per Share
by
Novartis BidCo AG
Novartis BidCo AG, a stock corporation (Aktiengesellschaft) incorporated under the laws of Switzerland (the “Bidder”), is offering (together with any amendments or supplements thereto, the “Takeover Offer”) to acquire all outstanding no-par value registered shares (the “Shares”), including Shares represented by American Depositary Shares (“ADSs”, and together with the Shares, “MorphoSys Securities”), of MorphoSys AG, a German stock corporation (“MorphoSys”), at a purchase price of EUR 68.00 per Share in cash (the “Offer Consideration”), upon the terms and subject to the conditions set forth in the Offer Document published April 11, 2024 (the “Offer Document”) and (i) with respect to holders of Shares (but not ADSs) (“Shareholders”), in the declaration of acceptance (the “Declaration of Acceptance”) and (ii) with respect to holders of ADSs (the “ADS Holders”, and together with Shareholders, the “MorphoSys Securityholders”), in the ADS letter of transmittal (the “ADS Letter of Transmittal”). This notice applies only to Shares held by Shareholders in the United States and ADSs. The Bidder is an indirect wholly-owned subsidiary of Novartis AG (“Novartis”), a publicly listed company whose stock trades on the SIX Swiss Exchange under the ticker symbol “NOVN” and on the New York Stock Exchange in the form of American Depositary Shares under the ticker symbol “NVS”. Novartis AG is not controlled by any of its shareholders.
THE ACCEPTANCE PERIOD (AS DEFINED BELOW) WILL EXPIRE ON MAY 13, 2024 (24:00 HOURS LOCAL TIME FRANKFURT AM MAIN, FEDERAL REPUBLIC OF GERMANY (“FRANKFURT TIME”)/6:00 P.M. LOCAL TIME NEW YORK, U.S.A. (“NEW YORK TIME”)), UNLESS THE ACCEPTANCE PERIOD IS EXTENDED. IF THE CONDITIONS TO THE TAKEOVER OFFER HAVE BEEN SATISFIED OR, IF PERMISSIBLE, WAIVED AT THE EXPIRATION OF THE ACCEPTANCE PERIOD, A TWO-WEEK ADDITIONAL ACCEPTANCE PERIOD (AS DEFINED BELOW) IS EXPECTED TO COMMENCE ON MAY 17, 2024 AND EXPIRE ON MAY 30, 2024 (24:00 HOURS FRANKFURT TIME/6:00 P.M. NEW YORK TIME).
As described more fully in the Offer Document, the Takeover Offer is conditioned upon, among other things, there being validly tendered and not withdrawn at the expiration of the Acceptance Period at least 65% of the number of Shares (including Shares represented by ADSs), other than treasury shares, issued as of the expiration of the Acceptance Period (the “Minimum Acceptance Threshold”). The Takeover Offer is also subject to certain other conditions specified in Section 12.1 of the Offer Document.
Pursuant to the terms of a Business Combination Agreement, dated February 5, 2024, entered into among MorphoSys AG, the Bidder and Novartis (the “BCA”), MorphoSys’s Management Board and Supervisory Board have undertaken to support the Takeover Offer and to recommend it to the MorphoSys Securityholders, subject to standard fiduciary out provisions contained in the BCA.
The Bidder has appointed Deutsche Bank AG to act as central settlement agent in connection with the Takeover Offer (the “Central Settlement Agent”). The acceptance of the Takeover Offer by ADS Holders may only be made through The Bank of New York Mellon as tender agent (the “ADS Tender Agent”).
ADS Holders who tender their ADSs will receive the Offer Consideration in U.S. dollars. The Offer Consideration will be converted into U.S. dollars by the ADS Tender Agent by sale or any other manner it may determine. All Shareholders of Shares tendered in the Takeover Offer will receive the Offer Consideration in Euros.
The period during which the Takeover Offer may be accepted (together with any extensions thereof, the “Acceptance Period”) will begin on April 11, 2024 and will end on May 13, 2024 at 24:00 hours Frankfurt Time/6:00 p.m. New York Time, unless the Acceptance Period is extended. In accordance with applicable German law, the Acceptance Period will be automatically extended by law in the following circumstances: (1) upon the publication of an amendment of the Takeover Offer within two weeks of the scheduled expiration of the Acceptance Period, in which case the Acceptance Period will be extended by two weeks from the date of such scheduled expiration; and (2) if a third party makes a competing offer and the Acceptance Period would otherwise have expired before the expiration of the acceptance period of such competing offer, in which case the Acceptance Period will be automatically extended so that it expires at the same time as the acceptance period of such competing offer. During any such extension, all MorphoSys Securities previously tendered and not properly withdrawn will remain subject to the Takeover Offer, subject to the rights of a tendering MorphoSys Securityholder to withdraw such tendered MorphoSys Securities. Any such extension will be published in accordance with German law and will also be announced by press release in the United States.
If, at the expiration of the Acceptance Period, all conditions to the Takeover Offer have been either satisfied or waived by the Bidder, MorphoSys Securityholders who have not accepted the Takeover Offer within the Acceptance Period may still accept the Takeover Offer within two weeks after publication of the results of the Takeover Offer by the Bidder pursuant to the German Takeover Act (the “Additional Acceptance Period”) and be entitled to receive the same Offer Consideration offered during the Acceptance Period in accordance with the terms and conditions set forth in the Offer Document. An acceptance of the Takeover Offer during the Additional Acceptance Period is therefore conditional upon, among other things, the Minimum Acceptance Threshold being achieved, unless waived, at the end of the Acceptance Period. MorphoSys Securityholders should, therefore, not rely on being able to accept the Takeover Offer during the Additional Acceptance Period. Except as described below, MorphoSys Securities tendered during the Additional Acceptance Period may not be withdrawn.
ADS Holders may accept the Takeover Offer with respect to the Shares represented by their ADSs by timely delivering to the ADS Tender Agent (1) American Depository Receipts evidencing ADSs (“ADRs”) or a confirmation of a book-entry transfer of such ADSs into the ADS Tender Agent’s account at The Depository Trust Company (“DTC”), unless, in each case, the ADSs are held directly in uncertificated form not evidenced by ADRs and not in a securities account with a broker or other securities intermediary, (2) a properly completed and duly executed ADS Letter of Transmittal or an Agent’s Message (as defined in the Offer Document) in connection with a book-entry transfer of ADSs and (3) any other documents required by the ADS Letter of Transmittal. In certain cases, ADS holders may tender in accordance with procedures for guaranteed delivery described in Section 13.3.2(d) of the Offer Document.
Shareholders may only accept the Takeover Offer by delivering a declaration of acceptance (the “Declaration of Acceptance”) to the investment services enterprise maintaining the securities account that holds such Shareholders’ Shares (the “Custodian Bank”). Shareholders holding Shares through a Custodian Bank may obtain the Declaration of Acceptance from that Custodian Bank. Until settlement of the Takeover Offer pursuant to the terms and conditions of the Offer Document, the Shares for which the Declaration of Acceptance has become effective remain in the respective securities account of the accepting Shareholders but are re-booked to a different International Securities Identification Number (“ISIN”) at Clearstream Banking AG, Frankfurt am Main, Germany (“Clearstream”) and in the securities account of the accepting Shareholder.
The Declaration of Acceptance will only become effective upon the Shares having been re-booked to the relevant ISIN in time. As a prerequisite, the Declaration of Acceptance must be delivered to the relevant Custodian Bank within the Acceptance Period or the Additional Acceptance Period, as applicable. If a Declaration of Acceptance has been delivered to the relevant Custodian Bank within the Acceptance Period or the Additional Acceptance Period, as applicable, the re-booking of the MorphoSys Shares will be considered to have been performed in time if the re-booking at Clearstream has occurred no later than 18:00 hrs Frankfurt Time/12:00 p.m. New York Time on the second FSE Trading Day (as defined in the Offer Document) following the expiration of the Acceptance Period or the Additional Acceptance Period, as applicable.
The Bidder shall become obligated to pay for the tendered Shares, including Shares represented by ADSs, upon the satisfaction or waiver of all the conditions to the Takeover Offer set forth in Section 12 of the Offer Document (the “Offer Conditions”).
The Bidder will pay for Shares represented by ADSs pursuant to the Takeover Offer by depositing the Offer Consideration with the ADS Tender Agent. Subject to the terms and conditions of the Takeover Offer, (i) with respect to Shares represented by ADSs tendered during the Acceptance Period and not validly withdrawn, the Bidder shall pay the Offer Consideration to the ADS Tender Agent’s cash account in Germany without undue delay, however no later than four Banking Days following the publication of the tender results after the expiration of the Acceptance Period; and (ii) with respect to Shares represented by ADSs tendered during the Additional Acceptance Period and not validly withdrawn, the Bidder shall pay the Offer Consideration to the ADS Tender Agent’s cash account in Germany without undue delay, however no later than four Banking Days following the publication of the tender results after the expiration of the Additional Acceptance Period.
Subject to the terms and conditions of the Takeover Offer, the Central Settlement Agent shall transfer the Offer Consideration for Shares via Clearstream to the relevant Custodian Bank without undue delay, however no later than four Banking Days following: (i) with respect to the Shares tendered during the Acceptance Period and not validly withdrawn, the publication of the tender results after the expiration of the Acceptance Period; and (ii) with respect to the Shares tendered during the Additional Acceptance Period, the publication of the tender results after the expiration of the Additional Acceptance Period.
THE MORPHOSYS SECURITYHOLDERS WILL HAVE THE RIGHT TO WITHDRAW THEIR ACCEPTANCES OF THE TAKEOVER OFFER DURING THE ACCEPTANCE PERIOD, INCLUDING ANY EXTENSION THEREOF. SEE SECTION 17 OF THE OFFER DOCUMENT.
The Staff of the SEC’s Division of Corporation Finance has stated that they are in a position to grant relief with respect to matters in which the securities laws and practice in the United States conflict with those in Germany. See Section 21 of the Offer Document.
This notice and the Offer Document have been prepared on the basis that such relief has been granted to allow, among other things:
· | the payment for Shares in accordance with German practice in the manner described in Section 13.1 of the Offer Document; |
· | with respect to Shares tendered during the Acceptance Period or the Additional Acceptance Period, to suspend withdrawal rights from the end of the Acceptance Period until publication of the tender results after the end of the Acceptance Period pursuant to Sec. 23 para. 1 no. 2 of the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz – WpÜG), in accordance with Section 13 of the Offer Document; |
· | the Additional Acceptance Period to commence in accordance with German practice in the manner described in Section 5.3 of the Offer Document; |
· | to issue any notice of extension of the Acceptance Period in accordance with German practice in the manner described in Section 5.2 of the Offer Document; |
· | the Acceptance Period to be extended by two calendar weeks, rather than ten U.S. business days following an amendment of the Offer occurring during the last two weeks of the Acceptance Period, even if two calendar weeks were a shorter period than ten U.S. business days; and |
· | to make purchases outside of the Offer in accordance with German law in the manner described in Section 6.8 of the Offer Document. |
MorphoSys Securityholders who have exercised their right of withdrawal may re-accept the Offer only prior to the end of the Acceptance Period and/or Additional Acceptance Period (if applicable). ADS Holders may exercise their rights of withdrawal by timely delivering a written notice of withdrawal to the ADS Tender Agent specifying (1) the name of the person who tendered the ADSs to be withdrawn and (2) the number of ADSs to be withdrawn and the name of the registered holder of such ADSs, if the name is different from the person who tendered such ADSs. If ADRs evidencing ADSs to be withdrawn have been delivered to the ADS Tender Agent, then, prior to the physical release of such ADRs, the certificate numbers shown on such ADRs must be submitted to the ADS Tender Agent and the signature(s) on the notice of withdrawal must be medallion guaranteed if the original ADS Letter of Transmittal required a signature guarantee. If ADSs representing Shares have been tendered pursuant to the procedure for book-entry transfer, any notice of withdrawal must specify the name and number of the account at the DTC to be credited with the withdrawn ADSs or must otherwise comply with the DTC’s procedures.
Shareholders may exercise their rights of withdrawal outlined above with respect to Shares only by (1) declaring their withdrawal to their Custodian Bank in writing and in a timely manner for a specified number of tendered Shares (in the event that no number is specified, the withdrawal will be deemed to have been declared for all of the tendered Shares of the Shareholder concerned) and (2) instructing their Custodian Bank to re-book an equivalent number of Shares under the appropriate securities identification number or to reverse the book-entry transfer of such tendered Shares. The declaration of withdrawal will become effective upon the timely reversal of the book-entry transfer of the withdrawn Shares.
The receipt of cash in the Takeover Offer in exchange for Shares will generally be a taxable transaction for U.S. federal income tax purposes and may be a taxable transaction for German income tax purposes and under other applicable state, local or foreign income or other tax laws. MorphoSys Securityholders should consult their tax advisors about the particular effect the acceptance of the Takeover Offer will have on them. For more information on the U.S. federal income tax and German income tax consequences of accepting the Takeover Offer, see Section 20 of the Offer Document.
The Offer Document also includes important information about the Bidder’s intentions with respect to MorphoSys if the Takeover Offer is successful. MorphoSys Securityholders are urged to review that information carefully as it may affect their decision as to whether or not to tender Shares, including Shares represented by ADSs.
The information required to be disclosed by Rule 14d-6(d)(1) promulgated under the Exchange Act is contained in the Offer Document and is incorporated herein by reference.
The Offer Document and the applicable related documents described herein contain important information which should be read carefully before any decision is made with respect to the Takeover Offer.
Questions and requests for assistance or copies of the Offer Document, the Declaration of Acceptance or the ADS Letter of Transmittal and other tender offer documents may be directed to the Information Agent. Contact information with respect to the Information Agent is set forth below. Copies of any tender offer documents will be furnished promptly upon request at the Bidder’s expense. Furthermore, the German Offer Document and English translation thereof have been published on the internet at http://www.novartis.com/investors/morphosys-acquisition, where they can be downloaded and printed.
ADS Holders who hold their ADSs through a broker or other securities intermediary and whose broker or other securities intermediary accepts the Takeover Offer on the ADS Holders behalf, may be charged a fee. ADS Holders who accept the Takeover Offer to acquire the Shares represented by their ADSs directly will not be charged brokerage fees. Any stock exchange tax, sales tax or stamp tax, resulting from acceptance of the Takeover Offer shall be borne by the Bidder. The fee to be paid to the MorphoSys Depositary for the cancellation of the ADSs (USD 0.05 per ADS) will be borne by the Bidder.
The acceptance of the Takeover Offer in principle shall be free of costs and expenses of the Custodian Banks for the Shareholders who hold their Shares in a securities deposit account in the Federal Republic of Germany (except for the costs for transmitting the Declaration of Acceptance to the relevant Custodian Bank). For this purpose, the Bidder will pay to the Custodian Banks a compensation which has been separately communicated to them and which includes a market-standard custodian bank commission. For the avoidance of doubt, the Bidder wishes to point out that it cannot, however, issue binding instructions to the Custodian Banks on what costs and expenses the Custodian Banks charge for the acceptance of the Takeover Offer.
Costs imposed by other Custodian Banks or foreign intermediate custodians shall be borne by each accepting Shareholder.
The Central Settlement Agent for the Takeover Offer is:
Deutsche Bank AG
Taunusanlage 12
60325 Frankfurt am Main
Federal Republic of Germany
Fax: +49 69 910 38794
E-mail: dct.tender-offers@db.com
The ADS Tender Agent for the Takeover Offer is:
The Bank of New York Mellon
By registered, certified or express mail | By overnight courier | ||
The Bank of New York Mellon | The Bank of New York Mellon | ||
Attn: Voluntary Corporate Actions | Attn: Voluntary Corporate Actions | ||
COY: MPSB | COY: MPSB | ||
P.O. Box 43011 | 150 Royall Street, Suite V | ||
Providence, Rhode Island 02940-3011 | Canton, Massachusetts 02021 | ||
United States of America | United States of America |
The Information Agent for the Takeover offer is:
Georgeson
1290 Avenue of the Americas, 9th Floor
New York, NY 10104
ADS holders should contact:
Call Toll Free: +1 (866) 356-7344
Outside the U.S. Call: +1 (781) 236-4704
Email: MorphoSysADS@Georgeson.com
Shareholders should contact:
Germany: +49 89 38038187
Other International Callers: +44 203 004 6716
Email: MORoffer@georgeson.com
Form W-9 (Rev. March 2024) Request for Taxpayer Identification Number and Certification Department of the Treasury Internal Revenue Service Go to www.irs.gov/FormW9 for instructions and the latest information. Give form to the requester. Do not send to the IRS. Before you begin. For guidance related to the purpose of Form W-9, see Purpose of Form, below. Print or type. See Specific Instructions on page 3. 1 Name of entity/individual. An entry is required. (For a sole proprietor or disregarded entity, enter the owner’s name on line 1, and enter the business/disregarded entity’s name on line 2.) 2 Business name/disregarded entity name, if different from above. 3a Check the appropriate box for federal tax classification of the entity/individual whose name is entered on line 1. Check only one of the following seven boxes. Individual/sole proprietor C corporation S corporation Partnership Trust/estate LLC. Enter the tax classification (C = C corporation, S = S corporation, P = Partnership) . . . . Note: Check the “LLC” box above and, in the entry space, enter the appropriate code (C, S, or P) for the tax classification of the LLC, unless it is a disregarded entity. A disregarded entity should instead check the appropriate box for the tax classification of its owner. Other (see instructions) 3b If on line 3a you checked “Partnership” or “Trust/estate,” or checked “LLC” and entered “P” as its tax classification, and you are providing this form to a partnership, trust, or estate in which you have an ownership interest, check this box if you have any foreign partners, owners, or beneficiaries. See instructions . . . . . . . . . 4 Exemptions (codes apply only to certain entities, not individuals; see instructions on page 3): Exempt payee code (if any) Exemption from Foreign Account Tax Compliance Act (FATCA) reporting code (if any) (Applies to accounts maintained outside the United States.) 5 Address (number, street, and apt. or suite no.). See instructions. 6 City, state, and ZIP code Requester’s name and address (optional) 7 List account number(s) here (optional) Part I Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later. Note: If the account is in more than one name, see the instructions for line 1. See also What Name and Number To Give the Requester for guidelines on whose number to enter. Social security number – – or Employer identification number – Part II Certification Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and 2. I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and 3. I am a U.S. citizen or other U.S. person (defined below); and 4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and, generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later. Sign Here Signature of U.S. person Date General Instructions Section references are to the Internal Revenue Code unless otherwise noted. Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9. What’s New Line 3a has been modified to clarify how a disregarded entity completes this line. An LLC that is a disregarded entity should check the appropriate box for the tax classification of its owner. Otherwise, it should check the “LLC” box and enter its appropriate tax classification. New line 3b has been added to this form. A flow-through entity is required to complete this line to indicate that it has direct or indirect foreign partners, owners, or beneficiaries when it provides the Form W-9 to another flow-through entity in which it has an ownership interest. This change is intended to provide a flow-through entity with information regarding the status of its indirect foreign partners, owners, or beneficiaries, so that it can satisfy any applicable reporting requirements. For example, a partnership that has any indirect foreign partners may be required to complete Schedules K-2 and K-3. See the Partnership Instructions for Schedules K-2 and K-3 (Form 1065). Purpose of Form An individual or entity (Form W-9 requester) who is required to file an information return with the IRS is giving you this form because they Cat. No. 10231X Form W-9 (Rev. 3-2024) |
Form W-9 (Rev. 3-2024) Page 2 must obtain your correct taxpayer identification number (TIN), which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following. • Form 1099-INT (interest earned or paid). • Form 1099-DIV (dividends, including those from stocks or mutual funds). • Form 1099-MISC (various types of income, prizes, awards, or gross proceeds). • Form 1099-NEC (nonemployee compensation). • Form 1099-B (stock or mutual fund sales and certain other transactions by brokers). • Form 1099-S (proceeds from real estate transactions). • Form 1099-K (merchant card and third-party network transactions). • Form 1098 (home mortgage interest), 1098-E (student loan interest), and 1098-T (tuition). • Form 1099-C (canceled debt). • Form 1099-A (acquisition or abandonment of secured property). Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN. Caution: If you don’t return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later. By signing the filled-out form, you: 1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued); 2. Certify that you are not subject to backup withholding; or 3. Claim exemption from backup withholding if you are a U.S. exempt payee; and 4. Certify to your non-foreign status for purposes of withholding under chapter 3 or 4 of the Code (if applicable); and 5. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting is correct. See What Is FATCA Reporting, later, for further information. Note: If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the requester’s form if it is substantially similar to this Form W-9. Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are: • An individual who is a U.S. citizen or U.S. resident alien; • A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States; • An estate (other than a foreign estate); or • A domestic trust (as defined in Regulations section 301.7701-7). Establishing U.S. status for purposes of chapter 3 and chapter 4 withholding. Payments made to foreign persons, including certain distributions, allocations of income, or transfers of sales proceeds, may be subject to withholding under chapter 3 or chapter 4 of the Code (sections 1441–1474). Under those rules, if a Form W-9 or other certification of non-foreign status has not been received, a withholding agent, transferee, or partnership (payor) generally applies presumption rules that may require the payor to withhold applicable tax from the recipient, owner, transferor, or partner (payee). See Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities. The following persons must provide Form W-9 to the payor for purposes of establishing its non-foreign status. • In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the disregarded entity. • In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the grantor trust. • In the case of a U.S. trust (other than a grantor trust), the U.S. trust and not the beneficiaries of the trust. See Pub. 515 for more information on providing a Form W-9 or a certification of non-foreign status to avoid withholding. Foreign person. If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person (under Regulations section 1.1441-1(b)(2)(iv) or other applicable section for chapter 3 or 4 purposes), do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Pub. 515). If you are a qualified foreign pension fund under Regulations section 1.897(l)-1(d), or a partnership that is wholly owned by qualified foreign pension funds, that is treated as a non-foreign person for purposes of section 1445 withholding, do not use Form W-9. Instead, use Form W-8EXP (or other certification of non-foreign status). Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a saving clause. Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes. If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items. 1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien. 2. The treaty article addressing the income. 3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions. 4. The type and amount of income that qualifies for the exemption from tax. 5. Sufficient facts to justify the exemption from tax under the terms of the treaty article. Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if their stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first Protocol) and is relying on this exception to claim an exemption from tax on their scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption. If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233. Backup Withholding What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 24% of such payments. This is called “backup withholding.” Payments that may be subject to backup withholding include, but are not limited to, interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, payments made in settlement of payment card and third-party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding. You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return. Payments you receive will be subject to backup withholding if: 1. You do not furnish your TIN to the requester; 2. You do not certify your TIN when required (see the instructions for Part II for details); 3. The IRS tells the requester that you furnished an incorrect TIN; 4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only); or 5. You do not certify to the requester that you are not subject to backup withholding, as described in item 4 under “By signing the filled-out form” above (for reportable interest and dividend accounts opened after 1983 only). |
Form W-9 (Rev. 3-2024) Page 3 Certain payees and payments are exempt from backup withholding. See Exempt payee code, later, and the separate Instructions for the Requester of Form W-9 for more information. See also Establishing U.S. status for purposes of chapter 3 and chapter 4 withholding, earlier. What Is FATCA Reporting? The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all U.S. account holders that are specified U.S. persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code, later, and the Instructions for the Requester of Form W-9 for more information. Updating Your Information You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you are no longer tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account, for example, if the grantor of a grantor trust dies. Penalties Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty. Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. Misuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties. Specific Instructions Line 1 You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax return. If this Form W-9 is for a joint account (other than an account maintained by a foreign financial institution (FFI)), list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must provide a Form W-9. • Individual. Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name. Note for ITIN applicant: Enter your individual name as it was entered on your Form W-7 application, line 1a. This should also be the same as the name you entered on the Form 1040 you filed with your application. • Sole proprietor. Enter your individual name as shown on your Form 1040 on line 1. Enter your business, trade, or “doing business as” (DBA) name on line 2. • Partnership, C corporation, S corporation, or LLC, other than a disregarded entity. Enter the entity’s name as shown on the entity’s tax return on line 1 and any business, trade, or DBA name on line 2. • Other entities. Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. Enter any business, trade, or DBA name on line 2. • Disregarded entity. In general, a business entity that has a single owner, including an LLC, and is not a corporation, is disregarded as an entity separate from its owner (a disregarded entity). See Regulations section 301.7701-2(c)(2). A disregarded entity should check the appropriate box for the tax classification of its owner. Enter the owner’s name on line 1. The name of the owner entered on line 1 should never be a disregarded entity. The name on line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owner’s name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity’s name on line 2. If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9. This is the case even if the foreign person has a U.S. TIN. Line 2 If you have a business name, trade name, DBA name, or disregarded entity name, enter it on line 2. Line 3a Check the appropriate box on line 3a for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box on line 3a. IF the entity/individual on line 1 is a(n) . . . THEN check the box for . . . • Corporation Corporation. • Individual or • Sole proprietorship Individual/sole proprietor. • LLC classified as a partnership for U.S. federal tax purposes or • LLC that has filed Form 8832 or 2553 electing to be taxed as a corporation Limited liability company and enter the appropriate tax classification: P = Partnership, C = C corporation, or S = S corporation. • Partnership Partnership. • Trust/estate Trust/estate. Line 3b Check this box if you are a partnership (including an LLC classified as a partnership for U.S. federal tax purposes), trust, or estate that has any foreign partners, owners, or beneficiaries, and you are providing this form to a partnership, trust, or estate, in which you have an ownership interest. You must check the box on line 3b if you receive a Form W-8 (or documentary evidence) from any partner, owner, or beneficiary establishing foreign status or if you receive a Form W-9 from any partner, owner, or beneficiary that has checked the box on line 3b. Note: A partnership that provides a Form W-9 and checks box 3b may be required to complete Schedules K-2 and K-3 (Form 1065). For more information, see the Partnership Instructions for Schedules K-2 and K-3 (Form 1065). If you are required to complete line 3b but fail to do so, you may not receive the information necessary to file a correct information return with the IRS or furnish a correct payee statement to your partners or beneficiaries. See, for example, sections 6698, 6722, and 6724 for penalties that may apply. Line 4 Exemptions If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space on line 4 any code(s) that may apply to you. Exempt payee code. • Generally, individuals (including sole proprietors) are not exempt from backup withholding. • Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends. • Corporations are not exempt from backup withholding for payments made in settlement of payment card or third-party network transactions. • Corporations are not exempt from backup withholding with respect to attorneys’ fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are not exempt with respect to payments reportable on Form 1099-MISC. The following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space on line 4. 1—An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2). |
Form W-9 (Rev. 3-2024) Page 4 2—The United States or any of its agencies or instrumentalities. 3—A state, the District of Columbia, a U.S. commonwealth or territory, or any of their political subdivisions or instrumentalities. 4—A foreign government or any of its political subdivisions, agencies, or instrumentalities. 5—A corporation. 6—A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or territory. 7—A futures commission merchant registered with the Commodity Futures Trading Commission. 8—A real estate investment trust. 9—An entity registered at all times during the tax year under the Investment Company Act of 1940. 10—A common trust fund operated by a bank under section 584(a). 11—A financial institution as defined under section 581. 12—A middleman known in the investment community as a nominee or custodian. 13—A trust exempt from tax under section 664 or described in section 4947. The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13. IF the payment is for . . . THEN the payment is exempt for . . . • Interest and dividend payments All exempt payees except for 7. • Broker transactions Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012. • Barter exchange transactions and patronage dividends Exempt payees 1 through 4. • Payments over $600 required to be reported and direct sales over $5,0001 Generally, exempt payees 1 through 5.2 • Payments made in settlement of payment card or third-party network transactions Exempt payees 1 through 4. 1See Form 1099-MISC, Miscellaneous Information, and its instructions. 2However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys’ fees, gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency. Exemption from FATCA reporting code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate that a code is not required by providing you with a Form W-9 with “Not Applicable” (or any similar indication) entered on the line for a FATCA exemption code. A—An organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37). B—The United States or any of its agencies or instrumentalities. C—A state, the District of Columbia, a U.S. commonwealth or territory, or any of their political subdivisions or instrumentalities. D—A corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations section 1.1472-1(c)(1)(i). E—A corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i). F—A dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state. G—A real estate investment trust. H—A regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940. I—A common trust fund as defined in section 584(a). J—A bank as defined in section 581. K—A broker. L—A trust exempt from tax under section 664 or described in section 4947(a)(1). M—A tax-exempt trust under a section 403(b) plan or section 457(g) plan. Note: You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be completed. Line 5 Enter your address (number, street, and apartment or suite number). This is where the requester of this Form W-9 will mail your information returns. If this address differs from the one the requester already has on file, enter “NEW” at the top. If a new address is provided, there is still a chance the old address will be used until the payor changes your address in their records. Line 6 Enter your city, state, and ZIP code. Part I. Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. If you are a resident alien and you do not have, and are not eligible to get, an SSN, your TIN is your IRS ITIN. Enter it in the entry space for the Social security number. If you do not have an ITIN, see How to get a TIN below. If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN. If you are a single-member LLC that is disregarded as an entity separate from its owner, enter the owner’s SSN (or EIN, if the owner has one). If the LLC is classified as a corporation or partnership, enter the entity’s EIN. Note: See What Name and Number To Give the Requester, later, for further clarification of name and TIN combinations. How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local SSA office or get this form online at www.SSA.gov. You may also get this form by calling 800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/EIN. Go to www.irs.gov/Forms to view, download, or print Form W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderForms to place an order and have Form W-7 and/or Form SS-4 mailed to you within 15 business days. If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and enter “Applied For” in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, you will generally have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester. Note: Entering “Applied For” means that you have already applied for a TIN or that you intend to apply for one soon. See also Establishing U.S. status for purposes of chapter 3 and chapter 4 withholding, earlier, for when you may instead be subject to withholding under chapter 3 or 4 of the Code. Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8. |
Form W-9 (Rev. 3-2024) Page 5 Part II. Certification To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4, or 5 below indicates otherwise. For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must sign. Exempt payees, see Exempt payee code, earlier. Signature requirements. Complete the certification as indicated in items 1 through 5 below. 1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification. 2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form. 3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification. 4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. “Other payments” include payments made in the course of the requester’s trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third-party network transactions, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations). 5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), ABLE accounts (under section 529A), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification. What Name and Number To Give the Requester For this type of account: Give name and SSN of: 1. Individual The individual 2. Two or more individuals (joint account) other than an account maintained by an FFI The actual owner of the account or, if combined funds, the first individual on the account1 3. Two or more U.S. persons (joint account maintained by an FFI) Each holder of the account 4. Custodial account of a minor (Uniform Gift to Minors Act) The minor2 5. a. The usual revocable savings trust (grantor is also trustee) The grantor-trustee1 b. So-called trust account that is not a legal or valid trust under state law The actual owner1 6. Sole proprietorship or disregarded entity owned by an individual The owner3 7. Grantor trust filing under Optional Filing Method 1 (see Regulations section 1.671-4(b)(2)(i)(A))** The grantor* For this type of account: Give name and EIN of: 8. Disregarded entity not owned by an individual The owner 9. A valid trust, estate, or pension trust Legal entity4 10. Corporation or LLC electing corporate status on Form 8832 or Form 2553 The corporation 11. Association, club, religious, charitable, educational, or other tax-exempt organization The organization 12. Partnership or multi-member LLC The partnership 13. A broker or registered nominee The broker or nominee 14. Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments The public entity 15. Grantor trust filing Form 1041 or under the Optional Filing Method 2, requiring Form 1099 (see Regulations section 1.671-4(b)(2)(i)(B))** The trust 1 List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person’s number must be furnished. 2Circle the minor’s name and furnish the minor’s SSN. 3You must show your individual name on line 1, and enter your business or DBA name, if any, on line 2. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN. 4 List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) *Note: The grantor must also provide a Form W-9 to the trustee of the trust. **For more information on optional filing methods for grantor trusts, see the Instructions for Form 1041. Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed. Secure Your Tax Records From Identity Theft Identity theft occurs when someone uses your personal information, such as your name, SSN, or other identifying information, without your permission to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund. To reduce your risk: • Protect your SSN, • Ensure your employer is protecting your SSN, and • Be careful when choosing a tax return preparer. If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter. If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity, or a questionable credit report, contact the IRS Identity Theft Hotline at 800-908-4490 or submit Form 14039. For more information, see Pub. 5027, Identity Theft Information for Taxpayers. |
Form W-9 (Rev. 3-2024) Page 6 Victims of identity theft who are experiencing economic harm or a systemic problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 877-777-4778 or TTY/TDD 800-829-4059. Protect yourself from suspicious emails or phishing schemes. Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft. The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts. If you receive an unsolicited email claiming to be from the IRS, forward this message to phishing@irs.gov. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration (TIGTA) at 800-366-4484. You can forward suspicious emails to the Federal Trade Commission at spam@uce.gov or report them at www.ftc.gov/complaint. You can contact the FTC at www.ftc.gov/idtheft or 877-IDTHEFT (877-438-4338). If you have been the victim of identity theft, see www.IdentityTheft.gov and Pub. 5027. Go to www.irs.gov/IdentityTheft to learn more about identity theft and how to reduce your risk. Privacy Act Notice Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and territories for use in administering their laws. The information may also be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payors must generally withhold a percentage of taxable interest, dividends, and certain other payments to a payee who does not give a TIN to the payor. Certain penalties may also apply for providing false or fraudulent information. |
Exhibit (a)(1)(I)
Voluntary public takeover offer by Novartis BidCo AG, Basel, Switzerland, to the shareholders of MorphoSys AG, Planegg, Germany
Technical specifications for settlement
MorphoSys Shares: | ISIN DE0006632003 | |
Tendered MorphoSys Shares: | ISIN DE000A4BGGU0 | |
Subsequently Tendered MorphoSys Shares: | ISIN DE000A4BGGV8 | |
MorphoSys ADS: | ISIN US6177602025 |
The no-par value bearer shares (Stückaktien) of MorphoSys AG (“MorphoSys”) are evidenced by global certificates eligible for collective custody.
Important note:
The settlement of the Takeover Offer for MorphoSys ADSs is not the subject of these technical specifications. As regards acceptance of the Takeover Offer for MorphoSys ADSs, please refer to the relevant publications by the relevant depositary where MorphoSys ADSs are held, and to the relevant sections of the Offer Document. The Bank of New York Mellon acts as the tender agent for the Takeover Offer for MorphoSys ADSs, with the contact details set out in Section 13.3.1 of the Offer Document.
Voluntary public takeover offer
Novartis BidCo AG (“Bidder”) offers all MorphoSys shareholders (“MorphoSys Shareholders”) to acquire their no-par value bearer shares (Stückaktien) with a notional interest in the share capital of € 1.00 each (ISIN DE0006632003) (“MorphoSys Shares”) for a purchase price of € 68.00 per share in accordance with the terms and conditions outlined in the Offer Document (“Takeover Offer”). The only legally binding information is the information contained in the offer document published on 11 April 2024 (“Offer Document”).
The takeover offer contained in the Offer Document (the “Offer”) and the takeover contemplated by the Offer (the “Takeover”) by the Bidder is a voluntary public takeover offer (freiwilliges öffentliches Übernahmeangebot) to all shareholders of MorphoSys (collectively the “MorphoSys Shareholders”, and each a “MorphoSys Shareholder”) and to all holders of American Depositary Shares representing MorphoSys Shares (collectively the “MorphoSys ADS Holders”, and each a “MorphoSys ADS Holder”).
The object of the Offer is the acquisition of all MorphoSys Shares not held directly by the Bidder and all MorphoSys Shares represented by American Depositary Shares (collectively the “MorphoSys ADSs”, and each a “MorphoSys ADS”), whether or not evidenced by American Depositary Receipts (collectively the “MorphoSys ADRs”, and each a “MorphoSys ADR”).
The MorphoSys Shares and the MorphoSys ADSs are hereinafter collectively referred to as the “MorphoSys Securities”, and the MorphoSys Shareholders and MorphoSys ADS Holders are hereinafter collectively referred to as the “MorphoSys Securityholders”.
The Offer will be carried out in accordance with the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz) (“WpÜG”) 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 the “German Takeover Rules”).
Furthermore, the Offer is carried out in accordance with the securities laws of the United States of America (the “United States” or the “U.S.”), including the provisions applicable to tender offers of the U.S. Securities Exchange Act of 1934, as amended (the “U.S. Exchange Act”) and the rules and regulations promulgated thereunder (together with no-action and exemptive relief from the U.S. Securities and Exchange Commission (the “SEC”) to reconcile certain areas where German law and U.S. law conflict, the “U.S. Offer Rules”). As described in Sec. 21 of the Offer Document, the Bidder applied for exemptive or no-action relief prior to the publication of the Offer Document, which was granted on 9 April 2024.
Special notice to MorphoSys Securityholders with place of residence, seat or place of habitual abode in the United States or elsewhere outside of the Federal Republic of Germany, the Member States of the European Union and the European Economic Area
The Offer relates to shares in a German stock corporation (Aktiengesellschaft) that are traded on the Frankfurt Stock Exchange (the “FSE”) and is subject to the statutory provisions of the Federal Republic of Germany regarding the implementation of such an offer, which differ substantially from the corresponding legal provisions of the United States. For example, as more fully described in Secs. 4 and 13 of the Offer Document, the payment and settlement procedure with respect to the Offer will comply with the relevant German Takeover Rules, which differ from payment and settlement procedures customary in the United States, particularly with regard to the payment date of the consideration.
Furthermore, certain financial information in the Offer Document has been determined in accordance with the International Financial Reporting Standards (“IFRS® Accounting Standards”) as issued by the International Accounting Standards Board (“IASB®”) and may therefore not be comparable to financial information on U.S. companies and other companies whose financial information is determined in accordance with the Generally Accepted Accounting Principles of the United States as published by the U.S. Financial Accounting Standards Board (“FASB”).
MorphoSys Securityholders resident in the United States are advised that references in the Offer Document to a MorphoSys Securityholder’s “acceptance of the Offer” relate to and are interchangeable with references to “tendering” their MorphoSys Securities in the Offer, and “acceptance of the Offer” by any MorphoSys Securityholder is the legal equivalent of such MorphoSys Securityholder tendering its securities in a tender offer that is subject exclusively to the U.S. Offer Rules.
In accordance with German market practice, MorphoSys Shareholders who hold their MorphoSys Shares through Clearstream (as defined in Sec. 12.3 of the Offer Document) may trade tendered MorphoSys Shares on the regulated market (Regulierter Markt) of the FSE as more fully described in Sec. 13.1.9 of the Offer Document. However, MorphoSys ADS Holders that tender their MorphoSys ADSs in the Offer may not trade those MorphoSys ADSs or the MorphoSys Shares represented thereby unless they withdraw their tenders of the MorphoSys ADSs in due time prior to the expiry of the Acceptance Period as mor fully described in Sec. 13.3 of the Offer Document.
The Offer has not been approved or disapproved by the SEC or any state securities commission in the United States, nor has the SEC or any state securities commission in the United States passed upon the fairness or merits of, or upon the accuracy or adequacy of, the information contained herein. Any representation to the contrary is unlawful. The Offer will not be submitted to a review procedure of any other securities regulator outside of the Federal Republic of Germany and has not been approved or recommended by any such regulator, however, in the United States a Schedule TO (as defined below) will be filed with the SEC and published.
The Bidder and its affiliates within the meaning of US law (“Affiliates”) or their 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 Rules and, to the extent applicable, the U.S. Offer Rules. This also applies to other securities convertible into, exchangeable for or exercisable for MorphoSys Shares. The Offer Price must be increased to match any consideration paid for any acquisition of MorphoSys Shares by the Bidder or any of its Affiliates during the pendency of the Offer outside the Offer if higher than the Offer Price (see Sec. 6.8 of the Offer Document). Information about such acquisitions or arrangements to acquire will be published pursuant to Sec. 23 para. 2 WpÜG in the German Federal Gazette (Bundesanzeiger). Such information will also be published (in German and in a non-binding English translation) on the Bidder’s website at www.novartis.com/investors/morphosys-acquisition.
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 such MorphoSys Securityholder’s 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 the MorphoSys Securityholder’s residency.
The receipt of the Offer Price pursuant to the Offer may be a taxable transaction under applicable tax laws, including those of the country of residence, and will generally be a taxable transaction to “U.S. Holders” (as defined in Sec. 20.1 of the Offer Document) for U.S. federal income tax purposes (see Sec. 20.1 of the Offer Document). MorphoSys Securityholders are urged to consult your independent professional advisor immediately regarding the tax consequences of acceptance of the 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 Offer.
Publication and dissemination of the Offer Document and related documents
The Offer Document, the publication of which has been approved by BaFin on 11 April 2024 (in German), is published in German on 11 April 2024 by way of (i) announcement on the internet at www.novartis.com/investors/morphosys-acquisition, and (ii) keeping available copies of the Offer Document free of charge at Deutsche Bank Aktiengesellschaft, TAS, Post-IPO Services, Taunusanlage 12, 60325 Frankfurt am Main, Germany (requests to obtain a copy of the Offer Document to be made via e-mail to dct.tender-offers@db.com or by fax to +49 69 910 38794 indicating a valid mailing address). The announcement about keeping available copies of this Offer Document free of charge in the Federal Republic of Germany and the internet address at which the publication of the Offer Document occurs will be published on 11 April 2024 in the German Federal Gazette (Bundesanzeiger).
Further, the Offer Document will be published in German together with an English language version as part of the Tender Offer Statement by way of a Schedule TO (the “Schedule TO”). The English language version of the Offer Document, which has not been reviewed by BaFin, has also been made available at www.novartis.com/investors/morphosys-acquisition. In the United States, the corresponding announcement will be made in The New York Times (U.S. Edition). In addition, the Bidder intends to mail the English version of this Offer Document to all MorphoSys ADS Holders.
The Schedule TO and any amendments thereto, exhibits to the Schedule TO, and other information that the Bidder and Novartis AG have filed electronically with the SEC may be obtained free of charge at the SEC’s website at www.sec.gov/edgar/browse/?CIK=11144481.
MorphoSys is required under the business combination agreement between Novartis AG, the Bidder and MorphoSys dated 5 February 2024 (the “Business Combination Agreement”) to file a solicitation/recommendation statement pursuant to Sec. 14(d)(4) of the U.S. Exchange Act with the SEC on Schedule 14D-9 (the “Schedule 14D-9”), setting forth the recommendation of MorphoSys with respect to the Offer and the reasons for such recommendation and furnishing certain additional related information. A copy of the Schedule 14D-9 may also be examined at the SEC after the filing of the Schedule 14D-9 with the SEC on the date of publication of the Reasoned Statement (as defined in Sec. 7.6 of the Offer Document), and copies may also be obtained from the SEC free of charge at the SEC’s website at www.sec.gov/edgar/browse/?CIK=13402432. In addition, a copy of the Offer, means of tender of MorphoSys Shares and certain other related tender offer documents (once they become available) may be obtained free of charge at the website of Novartis AG at www.novartis.com/investors/morphosys-acquisition. A copy of the Schedule 14D-9 (once it becomes available) also may be obtained free of charge at www.novartis.com/investors/morphosys-acquisition, at MorphoSys’ website at www.morphosys.com/en/investors/Novartis-TakeoverOffer, or by contacting MorphoSys’ investor relations department at +49 89 89927 404.
MorphoSys Securityholders are urged to read this document carefully because it contains important information that such persons should consider before making any decision regarding tendering their MorphoSys Shares or MorphoSys ADSs.
The publication, dispatch, distribution or dissemination of the Offer Document or other documents related to the Offer outside the Federal Republic of Germany, the Member States of the European Union and the European Economic Area and the United States may be subject to legal restrictions. The Offer Document and other documents related to the Offer may not be dispatched to, or disseminated, distributed or published by third parties in, countries in which this would be illegal. The Bidder has not given its permission for the dispatch, publication, distribution or dissemination of the Offer Document by third parties outside the Federal Republic of Germany, the Member States of the European Union and the European Economic Area and the United States. Therefore, custodian investment service providers may not publish, dispatch, distribute or disseminate the Offer Document outside the Federal Republic of Germany, the Member States of the European Union and the European Economic Area and the United States unless in compliance with all applicable domestic and foreign statutory provisions.
Acceptance of the Offer outside the Federal Republic of Germany, the Member States of the European Union and the European Economic Area and the United States
The Offer may be accepted by all domestic and foreign MorphoSys Securityholders in accordance with the terms and conditions outlined in the Offer Document and the applicable statutory provisions. However, acceptance of the Offer outside the Federal Republic of Germany, the Member States of the European Union and the European Economic Area and the United States may be subject to legal restrictions. MorphoSys Securityholders who come into possession of the Offer Document outside the Federal Republic of Germany, the Member States of the European Union and the European Economic Area or the United States who wish to accept the Offer outside the Federal Republic of Germany, the Member States of the European Union and the European Economic Area or the United States and/or who are subject to statutory provisions other than those of the Federal Republic of Germany, the Member States of the European Union and the European Economic Area or the United States are advised to inform themselves of the relevant applicable statutory provisions and to comply with them. Neither the Bidder or any persons acting jointly with the Bidder nor the ADS tender agent assume responsibility for acceptance of the Offer outside the Federal Republic of Germany, the Member States of the European Union and the European Economic Area and the United States being permissible under the relevant applicable statutory provisions.
1 Last accessed on 11 April 2024.
2 Last accessed on 11 April 2024.
Publication of the Offer Document
The Offer Document is accessible on the internet at “www.novartis.com/investors/morphosys-acquisition” since Thursday, 11 April 2024. On that same day, an announcement was published in the German Federal Gazette (Bundesanzeiger) about keeping available copies of the Offer Document free of charge in the Federal Republic of Germany with Deutsche Bank AG (e-mail: dct.tender-offers@db.com, fax: +49 69-910-38794) and the internet address at which the Offer Document is published.
Other publications
All publications and announcements required according to the WpÜG or applicable capital market law provisions of the United States in connection with the Offer will be published on the internet at “www.novartis.com/investors/morphosys-acquisition” and, to the extent necessary pursuant to the WpÜG, in the Federal Gazette (Bundesanzeiger).
All publications relating to the Offer that are necessary for the technical settlement by custodian banks will be made in “Wertpapier-Mitteilungen” (“WM”).
Acceptance period
The acceptance period begins on Thursday, 11 April 2024, and ends on Monday, 13 May 2024, 24:00 hours CEST (the “Acceptance Period”) An extension of the Acceptance Period is not provided for, except in the cases prescribed by law.
Offer conditions
The Offer and the contracts concluded as a result of acceptance of the Offer are subject to the offer conditions set out in Sec. 12.1 of the Offer Document (minimum acceptance threshold, etc.), unless the Bidder has effectively waived their fulfilment.
Non-fulfilment of offer conditions
If the offer conditions pursuant to Sec. 12.1 of the Offer Document have not been fulfilled or waived by the relevant dates specified, the Takeover Offer will lapse.
In this case, the contracts which come into existence as a result of accepting the Offer will cease to exist and will not be consummated (conditions subsequent).
In such a case, MorphoSys Shares already transferred to the interim classes ISIN DE000A4BGGU0 or DE000A4BGGV8 must be re-booked to the original class ISIN DE0006632003 without undue delay and at the latest within four (4) banking days after announcement of the expiry of the Offer.
If the Takeover Offer is cancelled without substitution, the custodian banks will be informed in a separate WM notice about the steps to be taken with regard to such rescission.
Settlement Agent
Deutsche Bank AG, Frankfurt am Main, Germany, involving DB Investment Services GmbH (hereinafter “DB-IS”), CA Processing & Instructions Rights, Wilhelm-Fay-Str. 31-37, 65936 Frankfurt am Main, Germany, fax: +49 (0)69 12012-66096, acts as central settlement agent for the public takeover offer.
As of now:
Information to custody clients
Custodian banks are asked to provide MorphoSys Shareholders, at the beginning of the Acceptance Period and in compliance with the above distribution requirements, with (i) the individual client letter form set out below herein in German and English versions (Annexes 1 and 3) and (ii) the declaration of acceptance form in German and English versions (Annexes 2 and 4). Each custodian bank is required to conduct a legal review and has responsibility to verify whether documents may be sent to countries outside the Federal Republic of Germany and the United States in accordance with the capital market law of each jurisdiction.
Thursday, 11 April 2024
Start of the Acceptance Period
MorphoSys Shareholders can only accept the Offer in writing or in text form within the Acceptance Period.
The Offer is expected to be settled starting from Tuesday, 16 April 2024, exclusively via the CASCADE settlement system of Clearstream Banking AG, Frankfurt am Main, Germany (“CBF”). Custodian banks are requested, in accordance with sales orders received from their customers, to rebook shares of the class MorphoSys Shares (ISIN DE0006632003) to the interim class “Tendered MorphoSys Shares” (ISIN DE000A4BGGU0) in CASCADE (RTS) at a ratio of 1 : 1 once a day before 18:00 hours. The Offer is validly accepted only if shares have been rebooked (all such MorphoSys Shares the “Tendered MorphoSys Shares”). Entry in CASCADE will be made by means of the “Fractional shares/full shares combination” function (securities transfer and fractional shares (FS) indicator specification 04). Tendered MorphoSys Shares and MorphoSys Shares booked to ISIN DE000A4BGGU0 will initially remain in the shareholder’s securities account.
Reporting results
By accepting the Offer, MorphoSys Shareholders authorise their custodian banks to instruct and authorise CBF, during the (extended) Acceptance Period or within the time limit for supplementary entries and within the additional acceptance period, to report to the central Settlement Agent on each trading day the number of Tendered MorphoSys Shares (ISIN DE000A4BGGU0) or Subsequently Tendered MorphoSys Shares (as defined below) (ISIN DE000A4BGGV8) booked on their accounts maintained with CBF. With the transfer to ISIN DE000A4BGGU0 or DE000A4BGGV8, the relevant custodian bank also agrees to disclose such holding to Deutsche Bank AG.
Tradability of the Tendered MorphoSys Shares
It is expected that the Tendered MorphoSys Shares (ISIN DE000A4BGGU0) can be traded on the regulated market (Regulierter Markt) of the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse) with additional post-admission obligations (Prime Standard) as from Tuesday, 16 April 2024. Listing on other stock exchanges is not envisaged.
Trading in the Tendered MorphoSys Shares (ISIN DE000A4BGGU0) is expected to cease at the end of the first day after the end of the acceptance period.
The shares tendered as Subsequently Tendered MorphoSys Shares (as defined below) with ISIN DE000A4BGGV8 will not be traded.
Trading in MorphoSys Shares not tendered for acceptance of the Offer (ISIN DE0006632003) remains unaffected by this Offer.
Monday, 13 May 2024
Last day of the Acceptance Period
The custodian banks are to accept the Shareholders’ declarations of acceptance until Monday, 13 May 2024, 24:00 hours CEST. The book entry transfer of the Tendered MorphoSys Shares to the interim securities category shall generally be completed in CASCADE by 18:00 hours CEST on the last day of the Acceptance Period. Declarations of acceptance received later, by 24:00 hours CEST on 13 May 2024, must be accepted by the custodian banks and rebooked within the time limit for supplementary entries. It is essential to ensure that the declarations of acceptance are received in good time within the Acceptance Period. Any declarations of acceptance received late can only be considered within the Additional Acceptance Period, if any.
Note for Clearstream participants acting as intermediate custodians for foreign custodian banks.
The same applies to shareholders resident abroad. Their declarations of acceptance must also be received by their local custodian banks by 24:00 hours CEST or the corresponding local time. The book entry transfer request from the foreign depositary, in contrast, does not necessarily have to be received by the Clearstream participant by 24:00 hours CEST on 13 May 2024 but only in time for the Clearstream participant to make a book entry transfer to the interim securities category until Wednesday, 15 May 2024, 18:00 hours CEST.
Wednesday, 15 May 2024
Last opportunity to make timely book entry transfers to the interim securities category
Custodian banks provided with declarations of acceptance that were unable to transfer the relevant MorphoSys Shares to the interim securities category in time are given the opportunity to make book entry transfers in Real-Time Settlement (RTS) until Wednesday, 15 May 2024, 18:00 hours CEST.
Open stock exchange transactions in MorphoSys Shares with a closing date of 13 May 2024 can therefore be taken into account in the settlement of the Offer by CBF.
The declaration of acceptance will lapse for MorphoSys Shares that have not been rebooked until 15 May 2024, 18:00 hours CEST.
Potential extension of the Acceptance Period
The Bidder may amend the Offer up to one working day (Arbeitstag) before the end of the Acceptance Period. If the Offer is amended within the last two weeks before the end of the Acceptance Period, the Acceptance Period is automatically extended by two weeks and will then end on Monday, 27 May 2024, 24:00 hours CEST.
If a competing public purchase or exchange offer is made by a third party pursuant to Sec. 22 para. 1 WpÜG (“Competing Offer”) during the Acceptance Period for the Offer and if the Acceptance Period for the Offer ends prior to end of the acceptance period for the Competing Offer, the end of the Acceptance Period for the Offer shall be determined by reference to the end of the acceptance period for the Competing Offer (Sec. 22 para. 2 WpÜG). This applies even if the Competing Offer is amended or prohibited or violates statutory provisions.
Right of withdrawal
MorphoSys Securityholders who have accepted the Takeover Offer during the Acceptance Period may withdraw their declared acceptance at any time until the end of the Acceptance Period, without having to give any reason. MorphoSys Securityholders who have exercised their right of withdrawal may re-accept the Offer prior to the end of the Acceptance Period and/or Additional Acceptance Period (if applicable).
In the event of an amendment of the Offer, MorphoSys Securityholders may withdraw their acceptance at any time prior to the end of the Acceptance Period if they had already accepted the Offer prior to publication of the amendment. If a Competing Offer is made during the Acceptance Period for the Offer, MorphoSys Securityholders who have already accepted the Offer may withdraw their acceptance prior to the end of the Acceptance Period, provided they had declared their acceptance before the offer document of the Competing Offer was published.
Such withdrawal by MorphoSys Securityholders shall be made in writing or in text form; the declaration must be received by the custodian bank within the Acceptance Period and the Tendered MorphoSys Shares shall be re-booked to ISIN DE0006632003. For this purpose, the custodian banks must implement the declarations of withdrawal without undue delay, at the latest by the second banking day after the end of the - possibly extended - Acceptance Period by no later than 18:00 hours CEST, by re-booking the Shares to ISIN DE0006632003 in CASCADE at CBF.
Within the Acceptance Period, re-bookings triggered by withdrawals from the interim securities category ISIN DE000A4BGGU0 to the category MorphoSys Shares (ISIN DE0006632003) can be carried out by means of the function “Fractional shares/full shares combination” (securities transfer and indicator fractional shares (FS) specification 03).
Expected date: Thursday, 16 May 2024
Publication of the preliminary result of the Offer (Sec. 23 para. 1 sentence 1 no. 2 WpÜG) on the internet at “www.novartis.com/investors/morphosys-acquisition” and in the Federal Gazette (Bundesanzeiger).
Settlement I
If the offer conditions pursuant to Sec. 12.1 of the Offer Document are fulfilled or the Bidder has effectively waived them by the date of publication of the preliminary result of the Offer (Sec. 23 para. 1 sentence 1 no. 2 WpÜG), the Offer for the Tendered MorphoSys Shares (ISIN DE000A4BGGU0) tendered during the Acceptance Period will be settled without undue delay, but no later than on the fourth banking day following publication of the Offer results after the end of the Acceptance Period. CBF will arrange for the purchase price of €68.00 per MorphoSys Share for the Tendered MorphoSys Shares (ISIN DE000A4BGGU0) booked on their accounts with CBF to be credited to the custodian banks for the relevant holdings on the evening of 22 May 2024, concurrently (Zug um Zug) with the debiting of the Tendered MorphoSys Shares with value date 23 May 2024 (“Settlement”).
Additional Acceptance Period
After publication of the preliminary result of the Offer pursuant to Sec. 23 para. 1 sentence 1 no. 2 WpÜG on 16 May 2024, MorphoSys Securityholders who have not accepted the Offer within the regular Acceptance Period until 13 May 2024, 24:00 hours CEST, are entitled, in accordance with the WpÜG, to accept the Offer within two weeks after publication of the preliminary result pursuant to Sec. 23 para. 1 sentence 1 no. 2 WpÜG (“Additional Acceptance Period”). Subject to an extension of the Acceptance Period, the Additional Acceptance Period will commence on 17 May 2024 and end on Thursday, 30 May 2024, 24:00 hours CEST. The final result of the Offer is expected to be published on the internet at “www.novartis.com/investors/morphosys-acquisition” and in the Federal Gazette (Bundesanzeiger) on 4 June 2024.
During the Additional Acceptance Period, the book entry transfer from the MorphoSys Shares (DE0006632003) category to the interim securities category “Subsequently Tendered MorphoSys Shares” (ISIN DE000A4BGGV8) will take place at a ratio of 1:1. The Offer is validly accepted only if shares have been rebooked (all such MorphoSys Shares the “Subsequently Tendered MorphoSys Shares”).
Further details on the settlement of the Takeover Offer during the Additional Acceptance Period and the Settlement after the Additional Acceptance Period will be communicated separately via WM in due time.
Custodian bank commission
The acceptance of the Offer shall take place free of costs and expenses of the custodian banks for the MorphoSys Shareholders who have their MorphoSys Shares held in safe custody by a domestic financial institution (including domestic subsidiaries of foreign financial institutions) (except for the costs for transmitting the declaration of acceptance to the relevant custodian bank). The Bidder will therefore pay the domestic custodian banks €7.50 per securities account/client if the Offer is accepted and becomes effective. The commission is only paid to domestic custodian banks whose holdings are kept in custody at CBF. Banks that act as custodians for foreign financial institutions are requested to inform their clients accordingly. Taxes and duties as well as any fees of foreign custodian banks shall in each case be borne by the MorphoSys Shareholder accepting the Offer.
In order to register for the custodian bank commission, the custodian banks are requested to submit their requests to the Settlement Agent no later than four (4) weeks after Settlement – if possible, in one request – stating the number of shares tendered and the number of securities accounts to which the commission of EUR7.50 is attributable. The commission is to be claimed - if possible, in a cumulative request - exclusively via fax no. +49 69 12012 - 66045. Such request must mandatorily be addressed as follows: Novartis BidCo AG c/o DB Investment Services GmbH, Operations, CA Processing & Instructions Offers, Wilhelm-Fay-Str. 31 – 37, 65936 Frankfurt am Main.
Only the relevant CBF account holders are entitled to register for the custodian bank commission. They are asked to collect the requests of the financial institutions for which they act as custodians and submit them to the Settlement Agent in aggregated form. They are also asked to submit the commission request for their own account separately using the same form.
In the event that the Offer is reversed or fails to be accepted, no commission will be paid to the custodian banks.
Retention of documents
With regard to a possible subsequent improvement or reversal if the Offer fails to be accepted, the custodian banks are requested to carefully retain the client documents in connection with the settlement of the Offer until further notice.
Annex 1: Client letter form (German)
----------- Client letter (German), beginning of text ------------------
Freiwilliges öffentliches Übernahmeangebot der Novartis BidCo AG, Basel, Schweiz, an die Aktionäre der MorphoSys AG, Planegg
Sehr geehrte Depotkundin, sehr geehrter Depotkunde,
die Novartis BidCo AG („Bieterin“) hat am 11. April 2024 die Angebotsunterlage im Internet unter „www.novartis.com/investors/morphosys-acquisition“ sowie im Rahmen der Schalterpublizität veröffentlicht, in welcher sie allen Aktionären der MorphoSys AG („MorphoSys“) ein freiwilliges öffentliches Übernahmeangebot (Barangebot, im folgenden „Übernahmeangebot“) zum Erwerb ihrer Aktien der MorphoSys („MorphoSys-Aktien“) unterbreitet.
Im Rahmen dieses Übernahmeangebots unterbreitet die Bieterin Ihnen das Angebot, Ihre MorphoSys-Aktien gegen eine Barzahlung von € 68,00 für jede MorphoSys-Aktie zu erwerben. Das Übernahmeangebot steht unter dem Vorbehalt der in Ziffer 12.1 der Angebotsunterlage näher beschriebenen Angebotsbedingungen. Sofern diese Angebotsbedingungen nicht bis zu dem jeweiligen in der Angebotsunterlage bestimmten Zeitpunkt eingetreten sind oder wirksam bis zu einem Werktag vor Ablauf der Annahmefrist auf sie verzichtet worden ist, erlischt das Übernahmeangebot.
Wenn Sie das Übernahmeangebot annehmen wollen, bitten wir Sie, uns möglichst bald, spätestens jedoch bis zum ●. Mai 2024, ● Uhr (MESZ), bei uns eintreffend, mit der beigefügten Annahmeerklärung entsprechend zu beauftragen. Im Falle Ihrer Weisung werden wir die MorphoSys-Aktien zunächst in Ihrem Depot belassen, jedoch im Verhältnis 1 : 1 in die separate Internationale Wertpapier-Kenn-Nummer (ISIN) DE000A4BGGU0 umbuchen. Bei Vollzug des Übernahmeangebots werden wir Ihrem Depot die MorphoSys-Aktien entnehmen und gemäß der in Ziffer 13.1.2 und 13.1.3 der Angebotsunterlage ausgeführten Maßgaben verfahren.
Ohne Ihre Weisung werden wir in dieser Angelegenheit nichts unternehmen.
Gemäß den Bestimmungen der Angebotsunterlage besteht das Recht, bis zum Ende der (ggf. verlängerten) Annahmefrist von der Annahme des Übernahmeangebots zurückzutreten. Weitere Informationen hierzu können Sie Ziffer 17 der Angebotsunterlage entnehmen.
Der Erhalt des Kaufpreises im Rahmen des Übernahmeangebots ist für Sie provisions- und spesenfrei. Alle weiteren wichtigen Informationen und den vollständigen Wortlaut des Übernahmeangebots können Sie der Angebotsunterlage entnehmen, die unter der oben genannten Internet-Adresse abrufbar ist. Außerdem werden Exemplare der Angebotsunterlage zur kostenlosen Ausgabe bei der Deutsche Bank AG, Taunusanlage 12, 60325 Frankfurt am Main (Fax +49-(0)69-910-38794, E-Mail dct.tender-offers@db.com), bereitgehalten.
Mit freundlichen Grüßen
[Depotbank]
Anlage |
- | Vordruck „Annahmeerklärung“ |
----------- Client letter (German), end of text ------------------
Annex 2: Declaration of Acceptance Form (German)
------------ Declaration of Acceptance (German), beginning of text -----------------
Freiwilliges öffentliches Übernahmeangebot der Novartis BidCo AG, Basel, Schweiz
Depotnummer [·]
Sehr geehrte Damen und Herren,
Ich nehme/wir nehmen das vorgenannte am 11. April 2024 veröffentlichte freiwillige öffentliche Übernahmeangebot zum Erwerb von Aktien der MorphoSys AG hinsichtlich
¨ | meines/unseres in obigem Depot verbuchten Gesamtbestandes an MorphoSys -Aktien (ISIN DE0006632003) |
¨ | Stück meines/unseres in obigem Depot verbuchten Bestandes an MorphoSys-Aktien (ISIN DE0006632003) |
an. Ich weise/wir weisen Sie an, die von mir/uns zur Übernahme angedienten MorphoSys-Aktien zunächst in meinem/unserem oben genannten Depot zu belassen und unverzüglich im Verhältnis 1 :1 in die ISIN DE000A4BGGU0 umzubuchen.
Ich/wir erklären hiermit ausdrücklich, vom Inhalt der am 11. April 2024 veröffentlichten Angebotsunterlage Kenntnis genommen zu haben. Ich gebe/wir geben hiermit die in Ziffer 13.1.2 und 13.1.3 der Angebotsunterlage aufgeführten Erklärungen ab und erteile / erteilen die dort aufgeführten Weisungen und Vollmachten.
Die entsprechende Gegenleistung bitte ich/bitten wir, zu gegebener Zeit meinem/unserem bei Ihnen geführten Konto gutzuschreiben.
Ort, Datum | |
Rechtsverbindliche Unterschrift(en) |
------------ Declaration of Acceptance (German), end of text -----------------------
Annex 3: Client letter form (English)
----------- Client letter (English), beginning of text ------------------
Voluntary Public Takeover Offer by Novartis BidCo AG, Basel, Switzerland, to the shareholders of MorphoSys AG, Planegg, Germany
Dear Client,
On 11 April 2024, Novartis BidCo AG (the „Bidder“) published the Offer Document pursuant to which it offers to all shareholders in MorphoSys AG („MorphoSys“) to acquire all their shares in MorphoSys („MorphoSys Shares“) pursuant to a voluntary public takeover offer (cash offer, subsequently the „Takeover Offer“) in the Internet at „www.novartis.com/investors/morphosys-acquisition“ as well as in the framework of the so-called Over-the-Counter-Publicity.
Within the Takeover Offer, the Bidder offers you to acquire your MorphoSys Shares against a payment of a cash consideration of € 68.00 per MorphoSys Share. The Takeover Offer is subject to the offer conditions described in Section 12.1 of the Offer Document. In case the offer conditions have not been fulfilled until the relevant date indicated in the Offer Document or have not been validly waived by one day prior to the end of the acceptance period, the Takeover Offer will lapse.
If you would like to accept the Takeover Offer, we kindly ask you to instruct us by returning the enclosed declaration of acceptance form to us as soon as possible, but not later than by● May 2024, ● hours (CEST), to be received by us. If you do accept the Takeover Offer, we will initially keep your MorphoSys Shares in your account; however, we will transfer your MorphoSys Shares into the separate ISIN DE000A4BGGU0 at a 1 : 1 ratio. Upon closing of the Takeover Offer, we will withdraw the MorphoSys Shares from your account and will act in accordance with the measures outlined in Sections 13.1.2 and 13.1.3 of the Offer Document.
Without your instruction we will not take any action on your behalf.
Pursuant to the terms of the Offer Document, there will be the right to withdraw from the acceptance of the Takeover Offer until the end of the acceptance period, including any extension thereof. See Section 17 of the Offer Document for a more detailed description of those.
The receipt of the offer consideration is free of charges for you. The complete terms and conditions of the Takeover Offer are contained in the Offer Document which, as noted above, is available for download at „www.novartis.com/investors/morphosys-acquisition“. In addition, printed copies of the Offer Document can be obtained at Deutsche Bank AG, Taunusanlage 12, 60325 Frankfurt am Main (Fax +49-(0)69-910-38794, E-Mail dct.tender-offers@db.com), free of charge.
Best regards
[Custodian Bank]
Attachment |
- | Declaration of Acceptance Form |
----------- Client letter (English), end of text ------------------
Annex 4: Declaration of Acceptance Form (English)
------------ Declaration of Acceptance (English), beginning of text -----------------
Voluntary Public Takeover Offer by Novartis BidCo AG, Basel, Switzerland
Securities Account Number [•]
Ladies and Gentlemen:,
I/we accept the aforementioned voluntary public takeover offer for the acquisition of shares of MorphoSys AG (“MorphoSys”) published on 11 April 2024 with respect to
¨ | All shares of MorphoSys (ISIN DE0006632003) held in my/our account. |
¨ | For pcs. of shares of MorphoSys (ISIN DE0006632003) held in my/our account. |
I/We hereby instruct you to first retain our tendered shares in MorphoSys in the abovementioned custody account but to immediately re-book such shares into ISIN DE000A4BGGU0 at a 1:1 ratio.
I/We have taken note of the contents of the Offer Document published on 11 April 2024 and hereby give our declarations listed under Section 13.1.2 and 13.1.3 of said Offer Document and grant the necessary instructions, orders and powers of attorney mentioned therein.
We ask the respective offer consideration in cash be credited in due course to our cash account held with you.
Place, Date | |
Signature(s) |
------------ Declaration of Acceptance (English), end of text -----------------------
Exhibit (a)(1)(J)
POWER OF ATTORNEY
This Power of Attorney is made on 9th April 2024 by Novartis AG, a company limited by shares (Aktiengesellschaft) incorporated under the laws of Switzerland and registered in the Commercial Register of the Canton of Basel-Stadt, Switzerland, under number CHE-103.867.266 whose registered office is at Lichtstrasse 35, 4056 Basel, Switzerland (the “Company”).
WHEREAS
I. | The Company is considering a transaction involving the acquisition of MorphoSys AG, a company limited by shares (Aktiengesellschaft) established under the laws of Germany, with registered office in Planegg, Germany, registered with the commercial register of the local court (Amtsgericht) of Munich under HRB 121023 (the “Target” and together, the “Transaction”). The Target has its statutory seat at Semmelweisstraße 7, 82152 Planegg, Germany. |
II. | The Transaction is to be effected pursuant to the Business Combination Agreement between the Company, Novartis BidCo AG and the Target dated 5 February 2024 (the “Business Combination Agreement”). |
III. | Pursuant to the terms of the Business Combination Agreement, Novartis BidCo AG will acquire or cause to be acquired all of the outstanding no-par value bearer shares (including all no-par value bearer shares represented by American Depositary Shares (the “Target ADSs”) of the Target. |
IV. | Pursuant to the terms of the Business Combination Agreement, Novartis BidCo AG will commence one or more tender offers (the “Tender Offers” and each, a “Tender Offer”) for all of the outstanding shares of Target (the “Target Shares”) (including all Target ADSs), and following consummation of the Tender Offer, Novartis BidCo AG will acquire the Target (the “Acquisition”). |
APPOINTMENT
1. | In connection with the Transaction, the Company hereby makes, appoints and constitutes each of the following individuals: |
· | Susanne Kreutz | · | Celine Fang |
· | Janet Raimondo | · | David Quartner |
· | Jonathan Emery | · | Ram Narayan |
· | Tariq ElRafie | · | Antoine Audoly |
· | Tanay Ghosh | · | Christoph Ziegler |
· | Juliana Mazza Reis | · | Aharon (Ronny) Gal |
· | Hiram Andrews |
(each an “Attorney” and together the “Attorneys”) as its true and lawful attorney and agent, with full power of substitution, in the name and on behalf of the Company, to do any and all acts and things that any Attorney may deem necessary or advisable in connection with the Transaction, the Tender Offers, the Acquisition and the Business Combination Agreement including, without limitation:
(i) | negotiating, approving, signing, executing, delivering, and/or issuing on behalf of the Company any and all other agreements, contractual instruments, assignments, assumptions, certificates, deeds, notices, instruments, amendments, documents, filings or any other additional writings or communications whatsoever (whether under hand or seal or as a deed and in the Company’s name or otherwise) that any Attorney may deem necessary or advisable in connection with the Transaction; |
(ii) | taking such steps as necessary or advisable to effect the Tender Offers, including: |
a) | to prepare or cause to be prepared the documents prepared in connection with the Tender Offers to be distributed to the holders of the Target Shares (including any Schedule TO, Declaration of Acceptance, Letter of Transmittal and all exhibits and schedules thereto) (the “Tender Offer Documents”); and |
b) | to cause the Tender Offer Documents to be delivered to the stockholders of the Target in connection with the Tender Offers and to file the same with the Securities and Exchange Commission and other appropriate authorities, together with such amendments, deletions, corrections and/or waivers thereto (including the annexation of appropriate exhibits, appendices or schedules) as may be deemed to be necessary or appropriate; |
(iii) | taking such steps as necessary or advisable to obtain and manage the services of (a) a bank or trust company to act as the depository agent in the Tender Offers and as the paying agent in the Tender Offers and the Acquisition; (b) one or more dealer-managers to assist the Company and its subsidiaries to perform those services in connection with the Tender Offers as are customarily performed by investment banking firms in connection with acting as dealer-manager for tender offers of like nature, including, but not limited to, using reasonable efforts to solicit tenders of Target Shares pursuant to the Tender Offers and communicating generally with brokers, dealers, commercial banks, trust companies and other holders of Target Shares with respect to the Tender Offers; (c) an information agent to assist the Company and its subsidiaries in its solicitation of tenders from the stockholders of Target; and (d) any such other agents or third parties necessary, advisable or otherwise desirable in order to facilitate or effect the Transaction and any other actions contemplated by the Business Combination Agreement; |
(iv) | preparing, signing and filing all necessary or advisable filings with or notifications to, or otherwise obtaining all necessary or advisable consents, approvals, authorizations or permits of, governmental entities, including without limitation under (a) the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; (b) foreign competition laws; (c) U.S. federal and state securities laws; (d) any applicable non-U.S. securities laws; (e) the rules and regulations of the Financial Industry Regulatory Authority, the Nasdaq Stock Market, the New York Stock Exchange and other applicable stock markets and self-regulatory organizations; and (f) any other applicable U.S. and non-U.S. laws and regulations; and |
(v) | taking any other steps as may be deemed necessary, advisable or desirable in connection with effecting or consummating the Transaction. |
2. | Each act by the Attorneys appointed pursuant to this Power of Attorney shall be binding on the Company only if taken by two Attorneys acting jointly. An individual ceases to be an Attorney when the individual ceases to be an employee of the Company or one of its affiliates. |
3. | The appointment contained in this Power of Attorney shall in all circumstances remain in force and be irrevocable until 30 June 2025, but shall be of no further effect after that date. |
4. | In favor of an Attorney or a person dealing with any of them, all acts done and documents executed or signed by the Attorney in good faith on or before the date specified in paragraph 3 in the purported exercise of any power conferred by this Power of Attorney shall for all purposes be valid and binding on the Company and its successors and assigns. The Company hereby ratifies and confirms and agrees to ratify and confirm whatever each Attorney does or purports to do in the exercise or purported exercise of the powers conferred by this Power of Attorney. |
5. | This Power of Attorney and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of Switzerland. Any dispute arising out of or in connection with this Power of Attorney shall be submitted to the exclusive jurisdiction of the courts of the City of Basel, Switzerland. |
This Power of Attorney has been executed and takes effect on the date stated at the beginning of it.
NOVARTIS AG | ||
acting by two of its authorized signatories |
/s/ Bertrand Richard René Bugnon | /s/ Lukas Förtsch | |
Name: Bertrand Richard René Bugnon | Name: Lukas Förtsch |
Exhibit (a)(1)(K)
POWER OF ATTORNEY
This Power of Attorney is made on 9th April 2024 by Novartis BidCo AG, a company limited by shares (Aktiengesellschaft) incorporated under the laws of Switzerland and registered in the Commercial Register of the Canton of Basel-Stadt, Switzerland, under number CHE-477.907.492 whose registered office is at Lichtstrasse 35, 4056 Basel, Switzerland (the “Company”).
WHEREAS
I. | The Company is considering a transaction involving the acquisition of MorphoSys AG, a company limited by shares (Aktiengesellschaft) established under the laws of Germany, with registered office in Planegg, Germany, registered with the commercial register of the local court (Amtsgericht) of Munich under HRB 121023 (the “Target” and together, the “Transaction”). The Target has its statutory seat at Semmelweisstraße 7, 82152 Planegg, Germany. |
II. | The Transaction is to be effected pursuant to the Business Combination Agreement between the Company, Novartis AG and the Target dated 5 February 2024 (the “Business Combination Agreement”). |
III. | Pursuant to the terms of the Business Combination Agreement, the Company will acquire or cause to be acquired all of the outstanding no-par value bearer shares (including all no-par value bearer shares represented by American Depositary Shares (the “Target ADSs”)) of the Target. |
IV. | Pursuant to the terms of the Business Combination Agreement, the Company will commence one or more tender offers (the “Tender Offers” and each, a “Tender Offer”) for all of the outstanding shares of Target (the “Target Shares”) (including all Target ADSs), and following consummation of the Tender Offer, the Company will acquire the Target (the “Acquisition”). |
APPOINTMENT
1. | In connection with the Transaction, the Company hereby makes, appoints and constitutes each of the following individuals: |
· | Susanne Kreutz | · | Celine Fang |
· | Janet Raimondo | · | David Quartner |
· | Jonathan Emery | · | Ram Narayan |
· | Tariq ElRafie | · | Antoine Audoly |
· | Tanay Ghosh | · | Christoph Ziegler |
· | Juliana Mazza Reis | · | Aharon (Ronny) Gal |
· | Hiram Andrews | · | Lukas Gilgen |
(each an “Attorney” and together the “Attorneys”) as its true and lawful attorney and agent, with full power of substitution, in the name and on behalf of the Company, to do any and all acts and things that any Attorney may deem necessary or advisable in connection with the Transaction, the Tender Offers, the Acquisition and the Business Combination Agreement including, without limitation:
(i) | negotiating, approving, signing, executing, delivering, and/or issuing on behalf of the Company any and all other agreements, contractual instruments, assignments, assumptions, certificates, deeds, notices, instruments, amendments, documents, filings or any other additional writings or communications whatsoever (whether under hand or seal or as a deed and in the Company’s name or otherwise) that any Attorney may deem necessary or advisable in connection with the Transaction; |
(ii) | taking such steps as necessary or advisable to effect the Tender Offers, including: |
a) | to prepare or cause to be prepared the documents prepared in connection with the Tender Offers to be distributed to the holders of the Target Shares (including any Schedule TO, Declaration of Acceptance, Letter of Transmittal and all exhibits and schedules thereto) (the “Tender Offer Documents”); and |
b) | to cause the Tender Offer Documents to be delivered to the stockholders of the Target in connection with the Tender Offers and to file the same with the Securities and Exchange Commission and other appropriate authorities, together with such amendments, deletions, corrections and/or waivers thereto (including the annexation of appropriate exhibits, appendices or schedules) as may be deemed to be necessary or appropriate; |
(iii) | taking such steps as necessary or advisable to obtain and manage the services of (a) a bank or trust company to act as the depository agent in the Tender Offers and as the paying agent in the Tender Offers and the Acquisition; (b) one or more dealer-managers to assist the Company and its subsidiaries to perform those services in connection with the Tender Offers as are customarily performed by investment banking firms in connection with acting as dealer-manager for tender offers of like nature, including, but not limited to, using reasonable efforts to solicit tenders of Target Shares pursuant to the Tender Offers and communicating generally with brokers, dealers, commercial banks, trust companies and other holders of Target Shares with respect to the Tender Offers; (c) an information agent to assist the Company and its subsidiaries in its solicitation of tenders from the stockholders of Target; and (d) any such other agents or third parties necessary, advisable or otherwise desirable in order to facilitate or effect the Transaction and any other actions contemplated by the Business Combination Agreement; |
(iv) | preparing, signing and filing all necessary or advisable filings with or notifications to, or otherwise obtaining all necessary or advisable consents, approvals, authorizations or permits of, governmental entities, including without limitation under (a) the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; (b) foreign competition laws; (c) U.S. federal and state securities laws; (d) any applicable non-U.S. securities laws; (e) the rules and regulations of the Financial Industry Regulatory Authority, the Nasdaq Stock Market, the New York Stock Exchange and other applicable stock markets and self-regulatory organizations; and (f) any other applicable U.S. and non-U.S. laws and regulations; and |
(v) | taking any other steps as may be deemed necessary, advisable or desirable in connection with effecting or consummating the Transaction. |
2. | Each act by the Attorneys appointed pursuant to this Power of Attorney shall be binding on the Company only if taken by two Attorneys acting jointly. An individual ceases to be an Attorney when the individual ceases to be an employee of the Company or one of its affiliates. |
3. | The appointment contained in this Power of Attorney shall in all circumstances remain in force and be irrevocable until 30 June 2025, but shall be of no further effect after that date. |
4. | In favor of an Attorney or a person dealing with any of them, all acts done and documents executed or signed by the Attorney in good faith on or before the date specified in paragraph 3 in the purported exercise of any power conferred by this Power of Attorney shall for all purposes be valid and binding on the Company and its successors and assigns. The Company hereby ratifies and confirms and agrees to ratify and confirm whatever each Attorney does or purports to do in the exercise or purported exercise of the powers conferred by this Power of Attorney. |
5. | This Power of Attorney and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of Switzerland. Any dispute arising out of or in connection with this Power of Attorney shall be submitted to the exclusive jurisdiction of the courts of the City of Basel, Switzerland. |
This Power of Attorney has been executed and takes effect on the date stated at the beginning of it.
NOVARTIS BIDCO AG | ||
acting by two of its authorized signatories |
/s/ Daniel Andreas Weiss | /s/ Christian Jakob Rehm | |
Name: Daniel Andreas Weiss | Name: Christian Jakob Rehm |
Exhibit (a)(5)(D)
Novartis International AG CH-4002
Basel |
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https://www.novartis.com | |
https://twitter.com/novartisnews |
MEDIA & INVESTOR RELEASE
Novartis tender offer for MorphoSys AG commences
Basel, April 11, 2024 – Novartis published today the offer document for the voluntary public takeover offer by its wholly owned subsidiary Novartis BidCo AG for all outstanding shares of MorphoSys AG (“MorphoSys”), including all shares represented by MorphoSys American Depositary Shares (the “Offer”), for an offer price of EUR 68.00 per share in cash. The offer price corresponds to a premium of 142% on the volume-weighted average price during the last three months, as of the unaffected January 25, 2024, close.
The Offer is being made upon and subject to the terms and conditions set out in the offer document, including a 65% minimum acceptance threshold. The offer document is available in German and in the form of a non-binding English language translation, which, alongside other information in relation to the offer, are available on the following website: www.novartis.com/investors/morphosys-acquisition.The publication of the offer document has been approved by the German Federal Financial Supervisory Authority (“BaFin”).
MorphoSys’ Management Board and Supervisory Board have declared that they intend to recommend to shareholders the acceptance of the offer in their joint reasoned statement subject to a careful review of the offer document.
The acceptance period for the Offer starts today and ends on 13 May 2024, at 24:00 hours CEST and 18:00 hours EDT (also on May 13, 2024) (the “Acceptance Period”). As all mandatory antitrust clearances have already been obtained, the payment of the offer price will be effected for the MorphoSys shares and ADS tendered during the Acceptance Period shortly after the publication of the tender results for that period, if the minimum acceptance threshold has been reached and the other offer conditions have been satisfied.
Georgeson is acting as information agent for Novartis in the Offer. Deutsche Bank is acting as share tender agent and The Bank of New York Mellon is acting as ADS tender agent for the Offer.
From today until 30 May 2024, a takeover offer hotline for shareholders is available between 9:00-18:00 hours CEST from Monday through Friday under +49 89 3803 8187 (for German callers) and +44 20 3005 6716 (for international callers). A takeover offer hotline for ADS holders is available between 9:00-23:00 EDT from Monday through Friday and 12:00-18:00 on Saturdays under +1 (866) 356-7344 (for U.S. callers) and +1 (781) 236-4704 (for callers outside the U.S).
Additional Information and Where to Find it
This communication is neither an offer to purchase nor a solicitation of an offer to sell shares of MorphoSys. The final terms and further provisions regarding the Takeover Offer are available in the offer document published by Novartis BidCo AG (formerly known as Novartis data42 AG) (the “Bidder”). The offer document has been approved by the BaFin and has been filed with the U.S. Securities and Exchange Commission (the “SEC”). The solicitation and offer to buy shares of MorphoSys will be made only pursuant the offer document. In connection with the Takeover Offer, the Bidder and Novartis AG have filed Tender Offer Statement on Schedule TO with the SEC (together with the offer document, an Offer to Purchase including the means to tender and other related documents, the “Takeover Offer Documents”), the management board and supervisory board of MorphoSys have issued a joint reasoned statement in accordance with sec. 27 of the German Securities Acquisition and Takeover Act and MorphoSys has filed a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC (together with the joint reasoned statement, the “Recommendation Statements”). THE MORPHOSYS SHAREHOLDERS AND OTHER INVESTORS ARE URGED TO READ THE TAKEOVER OFFER DOCUMENTS AND THE RECOMMENDATION STATEMENTS BECAUSE THEY CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE TAKEOVER OFFER. The Takeover Offer Documents and the Recommendation Statements will be distributed to all stockholders of MorphoSys in accordance with German and U.S. securities laws. The Tender Offer Statement on Schedule TO and the Solicitation/Recommendation Statement on Schedule 14D-9 are available for free at the SEC’s website at www.sec.gov. Additional copies may be obtained for free by contacting the Bidder or MorphoSys. Free copies of these materials and certain other offering documents are available on the Bidder’s website at www.novartis.com/investors/morphosys-acquisition or by contacting the Bidder’s investor relations department at +41 61 324 7944.
In addition to the Offer to Purchase, including the means to tender and certain other Takeover Offer Documents, as well as the Solicitation/Recommendation Statement, MorphoSys and the Bidder will file other information with the SEC. Filings by Novartis AG and the Bidder with the SEC are also available for free to the public from commercial document-retrieval services and at the website maintained by the SEC at www.sec.gov.
In order to reconcile certain areas where German law and U.S. law conflict, Novartis AG and the Bidder have requested and received no-action and exemptive relief from the SEC to conduct the Takeover Offer in the manner described in the offer document.
Acceptance of the Takeover Offer by stockholders residing outside Germany and the United States of America may be subject to further legal requirements. With respect to the acceptance of the Takeover Offer outside Germany and the United States, no responsibility is assumed for the compliance with such legal requirements applicable in the respective jurisdiction.
Disclaimer
This press release contains forward-looking statements concerning Novartis AG, the Bidder, MorphoSys and the Offer that involve substantial risks and uncertainties. Forward-looking statements include any statements containing the words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “goal,” “may,” “might,” “plan,” “predict,” “project,” “seek,” “target,” “potential,” “will,” “would,” “could,” “should,” “continue” and similar expressions. In this communication, forward-looking statements include statements about the parties’ ability to satisfy the conditions to the consummation of the Offer; statements about the expected timetable for the consummation of the Offer; the plans, objectives, expectations and intentions of Novartis AG and the Bidder; and the financial condition, results of operations and business of MorphoSys and Novartis AG.
The forward-looking statements contained in this communication represent the judgment of the Bidder and Novartis AG as at the date of this communication and involve known and unknown risks and uncertainties, which might cause the actual results, financial condition and liquidity, performance or achievements of Novartis AG, or industry results, to be materially different from any historic or future results, financial conditions and liquidity, performance or achievements expressed or implied by such forward-looking statements. In addition, even if the results, performance, financial condition and liquidity of Novartis AG, and the development of the industry in which it operates are consistent with such forward-looking statements, they may not be predictive of results or developments in future periods. Those risks and uncertainties that could cause the actual results to differ from expectations contemplated by forward-looking statements include, among other things: uncertainties as to the timing of the Offer; uncertainties as to how many of the MorphoSys stockholders will tender their stock in the Offer; the possibility that competing offers will be made; the possibility that various conditions for the Offer may not be satisfied or waived, including that a governmental entity may prohibit, delay or refuse to grant approval for the consummation of the Offer; the effects of the Offer on relationships with employees, other business partners or governmental entities; that the Bidder and Novartis AG may not realize the potential benefits of the Offer; transaction costs associated with the Offer; that expectations may be incorrect; the uncertainties inherent in research and development, including clinical trial results and additional analysis of existing clinical data; regulatory actions or delays or government regulation generally; global trends toward health care cost containment, including government, payor and general public pricing and reimbursement pressures and requirements for increased pricing transparency; our ability to obtain or maintain proprietary intellectual property protection; the particular prescribing preferences of physicians and patients; general political, economic and business conditions, including the effects of and efforts to mitigate pandemic diseases; safety, quality, data integrity or manufacturing issues; potential or actual data security and data privacy breaches, or disruptions of our information technology systems, and other risks and factors referred to in Novartis AG’s current Form 20-F on file with the US Securities and Exchange Commission, as well as the Solicitation/Recommendation Statement on Schedule 14D-9 to be filed by MorphoSys and the Tender Offer Statement on Schedule TO and related Takeover Offer Documents to be filed by the Bidder and Novartis AG. Given these uncertainties, the reader is advised not to place any undue reliance on such forward-looking statements. These forward-looking statements speak only as of the date of publication of this communication. The Bidder, Novartis AG and MorphoSys expressly disclaim any obligation to update any such forward-looking statements in this communication to reflect any change in its expectations with regard thereto or any change in events, conditions or circumstances on which any such statement is based or that may affect the likelihood that actual results will differ from those set forth in the forward-looking statements, unless specifically required by law or regulation.
About Novartis
Novartis is an innovative medicines company. Every day, we work to reimagine medicine to improve and extend people’s lives so that patients, healthcare professionals and societies are empowered in the face of serious disease. Our medicines reach more than 250 million people worldwide.
Reimagine medicine with us: Visit us at https://www.novartis.com and connect with us on LinkedIn, Facebook, X/Twitter and Instagram.
# # #
Novartis Media Relations E-mail: media.relations@novartis.com
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Central | North America | ||
Richard Jarvis | +41 79 584 2326 | Michael Meo | +1 862 274 5414 |
Anja von Treskow | +41 79 392 9697 | Marlena Abdinoor | +1 617 335 9525 |
Anna Schäfers | +41 79 801 7267 | ||
Switzerland Satoshi Sugimoto |
+41 79 619 2035 |
Novartis Investor Relations Central investor relations line: +41 61 324 7944 E-mail: investor.relations@novartis.com
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Central | North America | ||
Isabella Zinck | +41 61 324 7188 | Sloan Simpson | +1 862 345 4440 |
Nicole Zinsli-Somm | +41 61 324 3809 | Jonathan Graham | +1 201 602 9921 |
Imke Kappes | +41 61 324 8269 | Parag Mahanti | +1 973 876 4912 |
Exhibit (a)(5)(E)
– Convenience Translation –
(Only the German version is legally binding)
Novartis BidCo AG
Basel, Switzerland
Announcement pursuant to Section 14 para. 3
sentence 1 no. 2 of the
German Securities Acquisitions and Takeover Act
(Wertpapiererwerbs- und Übernahmegesetz – “WpÜG”)
The information contained in this document is NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION (IN WHOLE OR IN PART) IN, INTO OR FROM ANY JURISDICTION WHERE such release, publication or distribution WOULD VIOLATE THE applicable LAWS OF SUCH JURISDICTION.
The offer document relating to the voluntary public takeover offer (cash offer) of Novartis BidCo AG, Basel, Switzerland, to the shareholders of MorphoSys AG, Planegg, Federal Republic of Germany, for the acquisition of all no-par value bearer shares of MorphoSys AG (ISIN DE0006632003) (the “MorphoSys Shares”), including all MorphoSys Shares represented by American Depositary Shares (ISIN US6177602025), as well as an English translation of the offer document are available as of today on the internet at https://www.novartis.com/investors/morphosys-acquisition.
In addition, copies of the German version of the offer document will be available for distribution free of charge at Deutsche Bank AG, TAS, Post-IPO Services, Taunusanlage 12, 60325 Frankfurt am Main, Federal Republic of Germany, which can be requested by mail to the above address, by fax to +49 69 910 38794 or by email to dct.tender-offers@db.com (by providing a complete address or email address).
Basel, 11 April 2024
Novartis BidCo AG
Important notice:
This announcement is neither an offer to purchase nor a solicitation of an offer to sell MorphoSys Shares (including MorphoSys Shares represented by American Depositary Shares). The terms and conditions of the public takeover offer, as well as further provisions concerning the takeover offer, are published in the offer document, the publication of which has been approved by the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – “BaFin”). Investors and holders of MorphoSys Shares (including MorphoSys Shares represented by American Depositary Shares) are strongly advised to read the offer document and all other documents relating to the offer, as they contain important information.
The English version of the offer document, which has not been reviewed or approved by BaFin, is also available on the internet at https://www.novartis.com/investors/morphosys-acquisition. The English version of the offer document and related offer materials have been or will be published with the U.S. Securities and Exchange Commission (“SEC”) in a Tender Offer Statement on Schedule TO. MorphoSys AG intends to file a solicitation/recommendation statement on Schedule 14D-9 with the SEC with respect to the takeover offer. Those materials and other documents filed by Novartis BidCo AG, Novartis AG or MorphoSys AG with the SEC will be available at no charge on the SEC’s website at www.sec.gov.
The public takeover is published exclusively under the laws of the Federal Republic of Germany, in particular according to the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz – “WpÜG”) and the securities laws of the United States of America, including the provisions applicable to tender offers of the U.S. Securities Exchange Act of 1934, as amended. The offer document is also published online at https://www.novartis.com/investors/morphosys-acquisition. Any contract concluded on the basis of the public takeover offer will be governed exclusively by and interpreted in accordance with the laws of the Federal Republic of Germany.
Novartis BidCo AG and its affiliates within the meaning of US law or brokers (acting as agents of the Novartis BidCo AG or its affiliates within the meaning of US law) 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 legal provisions. This also applies to other securities convertible into, exchangeable for or exercisable for MorphoSys Shares. The offer price must be adjusted to any higher purchase price or an additional payment claim in respect of tendered MorphoSys Shares arises in the amount of the difference between the offer price and the higher purchase price paid outside the offer.
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 https://www.novartis.com/investors/morphosys-acquisition.
In addition, the financial advisors of the Novartis BidCo AG may also act in the ordinary course of trading in securities of MorphoSys AG, which may include purchases or agreements to purchase such securities.
This publication is available
on the internet at: https://www.novartis.com/investors/morphosys-acquisition
on the internet on: 11 April 2024
Basel, 11 April 2024
Novartis BidCo AG
Exhibit (d)(2)
SUPPORT ARRANGEMENT
February 5, 2024
To:
MorphoSys AG
Attn.: Management Board (Vorstand)
Semmelweisstrasse 7
82152 Planegg
Germany
Dear Members of the MorphoSys AG Management Board:
Reference is made to that certain Business Combination Agreement (the "BCA") entered into by and among (i) Novartis Pharma AG, a stock corporation incorporated under the Laws of Switzerland, with registered office at Lichtstraße 35, 4056 Basel, Switzerland and being registered with the commercial register office (Handelsregisteramt) of the Canton of Basel-City under company number CHE-106.052.527 ("Bidder"), (ii) Novartis AG, a stock corporation incorporated under the Laws of Switzerland, with registered office at Lichtstraße 35, 4056 Basel, Switzerland and being registered with the commercial register office (Handelsregisteramt) of the Canton of Basel-City under CHE-103.867.266, ("Parent") and (iii) MorphoSys AG, a publicly listed stock corporation (Aktiengesellschaft) incorporated under the Laws of Germany, with registered office at Semmelweisstrasse 7, 82152 Planegg, Germany, and being registered with the commercial register (Handelsregister) of the local court of Munich (Amtsgericht) under HRB 121023 (the "Company", and together with Bidder and Parent, the "Parties"). This letter agreement (this "Agreement") sets forth the agreement between the Parties regarding certain compensation matters addressed in Sections 14.3 and 14.4 of the BCA. Capitalized terms used but not otherwise defined in this letter shall have the meaning given to such terms in the BCA. This Agreement will become effective immediately prior to the Closing. However, if the Closing does not occur, this Agreement will terminate and be of no force or effect.
Compensation Covenants of Parent and Bidder
Sections 14.3 and 14.4 of the BCA set forth obligations of Parent and Bidder with respect to Remuneration Modifications, Settlement Deferral, Indemnity Agreements, Severance Payments and the settlement of the Incentive Plans (collectively referred to herein as the "Compensation Covenants"). The Compensation Covenants are intended to reflect the intention of the Parties to ensure that the Management Board members and the employees of the Group Companies covered by the Compensation Covenants (each such person is referred to herein as a "Third-Party Beneficiary") receive the compensation, indemnification and/or severance benefits they are entitled to in accordance with their respective agreements (including Indemnity Agreements to be entered into following the date hereof), without giving effect to the Compensation Caps (defined below) as and to the extent specified in the BCA (collectively the "Compensation Obligations"), including in connection with respect to payments and benefits that would be received as a result of or in connection with the transactions contemplated by the BCA. It is anticipated that, absent satisfaction of such Compensation Covenants by the Bidder Entities, limitations in the Company's existing remuneration system for the Management Board members and the Incentive Plans (such limitations are referred to collectively as the "Compensation Cap") may operate to reduce the compensation and benefits paid or provided to some or all of the Third Party Beneficiaries from the amounts granted by the Company pursuant to the Compensation Obligations in connection with the transactions contemplated by the BCA, (disregarding for purposes hereof any limitation on the compliance with such provisions by the Bidder Entities imposed by applicable Law, which limitations shall be deemed not to be included in such provisions for purposes of this Agreement). In addition, absent satisfaction of such Compensation Covenants by the Bidder Entities with respect to the Indemnity Agreements, the Third-Party Beneficiaries who become subject to excise taxes pursuant to the operation of United States Internal Revenue Code Section 4999 will not receive the indemnification payments pursuant to the Indemnity Agreements described in Section 14.4(b) of the BCA (an "Indemnity Underpayment").
1 |
Determination of Indemnification Amount
In the event that any payment which is to be made to any Third-Party Beneficiary pursuant to the Compensation Obligations becomes subject to a Compensation Cap, Parent shall promptly pay such amounts up to the Compensation Cap and promptly (and in no event later than ten (10) Business Days following such capped payment) in good faith determine the "Compensation Cap Indemnification Amount", which is the amount of the applicable award which has not been paid as a result of the Compensation Cap. Without duplication of the previous sentence, in the event that any payment which is to be made to any Third-Party Beneficiary becomes subject to an Indemnity Underpayment, Parent shall promptly cause such payments to be made and shall promptly (and in no event later than ten (10) Business Days following such payment) in good faith determine the "Indemnity Underpayment Indemnification Amount", which is the full amount of such excise taxes incurred as a result of such payment and any taxes imposed on the indemnification payment or payments in respect of such payment, subject to the aggregate cap described in item 12 of Section I of the Company Disclosure Letter. Parent shall bear all costs and expenses incurred in connection with these determinations and shall promptly (and in no event later than ten (10) Business Days following a payment subject to a Compensation Cap or an Indemnity Underpayment) provide to such affected Third-Party Beneficiary a notice containing the calculation of the Compensation Cap Indemnification Amount or Indemnity Underpayment Indemnification Amount, as applicable (an "Indemnification Amount"), and all calculations and analysis conducted by or relied upon by Parent in reaching such determination. Parent shall provide such Third-Party Beneficiary with ten (10) Business Days following delivery of the determination and supporting materials) to review such determination. Such Third-Party Beneficiary shall bear and be responsible for the cost of any legal, tax and related advice incurred by such Third-Party Beneficiary in connection with such review. Unless there is a dispute regarding the Indemnification Amount, Parent shall pay or cause to be paid to such Third-Party Beneficiary the applicable Indemnification Amount, less applicable withholdings, with such payment to be made within five (5) Business Days of the end of such review period, but no sooner than such payment would have been required to be made under the BCA or the Compensation Obligations. In the event that any Indemnification Amount is subject to a different tax rate than the amounts which were not paid due to the application of the Compensation Caps or the Indemnity Underpayment, it is agreed that the net amount of the Indemnification Amount shall not be less, on an after-tax basis, than the net after-tax amount which such Third-Party Beneficiary would have received, but for the application of the Compensation Caps or the occurrence of the Indemnity Underpayment. The Third-Party Beneficiaries shall be third party beneficiaries to the agreements set forth in this Agreement and shall have the right to enforce such agreements directly as if they were a party hereto.
Applicable Legal Requirements; Jurisdiction; Specific Performance; Remedies.
Notwithstanding Section 36 of the BCA, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Massachusetts, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. Notwithstanding Section 37 of the BCA, in any action or proceeding arising out of or relating to this Agreement or the payment of any Indemnification Amount: (i) each of the Parties irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of: (A) the state courts of the Commonwealth of Massachusetts, (B) if (but only if) the court in clause (A) lacks subject matter jurisdiction, any United States federal court located in the Commonwealth of Massachusetts (collectively, the courts described in clauses (A) and (B), the "Massachusetts Courts"); and (ii) each of the Parties irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the address at which such Party is to receive notice in accordance with Section 29 of the BCA.
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Each of the Parties irrevocably and unconditionally (i) agrees not to commence any such action or proceeding except in the Massachusetts Courts, (ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in the Massachusetts Courts, (iii) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the jurisdiction or laying of venue of any such action or proceeding in the Massachusetts Courts and (iv) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in the Massachusetts Courts. The Parties agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law; provided, however, that nothing in the foregoing shall restrict any Party's rights to seek any post-judgment relief regarding, or any appeal from, such final trial court judgment.
The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their obligations under the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. The Parties acknowledge and agree that (i) the Parties shall be entitled to an injunction or injunctions, specific performance, or other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the Massachusetts Courts without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement or the BCA, and (ii) the right of specific performance is an integral part of this Agreement and without that right, neither the Company nor Parent would have entered into this Agreement. Each of the Parties agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that the other Parties have an adequate remedy at law or that an award of specific performance is not an appropriate remedy for any reason at law or equity. The Parties acknowledge and agree that any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this paragraph shall not be required to provide any bond or other security in connection with any such order or injunction.
EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BETWEEN THE PARTIES (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH PARTY (I) MAKES THIS WAIVER VOLUNTARILY AND (II) ACKNOWLEDGES THAT SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS AGREEMENT.
409A Treatment
Payments pursuant to this letter are intended to comply with or be exempt from the requirements of Section 409A of the Code (to the extent applicable) and shall be interpreted, operated and administered accordingly. Each payment under this letter will be treated as a separate payment for purposes of Section 409A of the Code.
Entire Agreement; Counterparts.
This Agreement and the BCA constitute the entire agreement between the Parties with respect to the payment of Indemnification Amounts and supersedes all prior agreements and discussions between such parties concerning such subject matter. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
3 |
[Signature page to Support Arrangement]
Sincerely,
Novartis AG | |
/s/ Tariq Elrafie | |
Name: Tariq Elrafie | |
Title: As Attorney | |
/s/ David Quartner | |
Name: David Quartner | |
Title: As Attorney | |
Novartis data42 AG | |
/s/ Tariq Elrafie | |
Name: Tariq Elrafie | |
Title: As Attorney | |
/s/ David Quartner | |
Name: David Quartner | |
Title: As Attorney |
[Signature page to Support Arrangement]
Acknowledged and agreed on the date first written above: | |
/s/ Jean-Paul Kress | |
Name: Jean-Paul Kress, M.D. | |
Title: CEO | |
/s/ Lucinda Crabtree | |
Name: Lucinda Crabtree, Ph.D. | |
Title: CFO |
Exhibit (d)(3)
CONFIDENTIAL
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
This Mutual Confidential Disclosure Agreement (“Agreement”), effective as of November 27, 2023 (“Effective Date”), is made and entered into between:
MorphoSys AG, a publicly listed German corporation (registered at the Local Court of Munich HRB 121023) having an office and place of business at Semmelweisstrasse 7, 82152 Planegg, Germany, on behalf of itself and its Affiliates, as defined below (collectively “MORPHOSYS”)
and
Novartis Pharma AG, a publicly listed Swiss corporation (registered at the Commercial Register of Basel-Stadt CHE-106.052.527 having an office and place of business at Lichtstrasse 35, 4056 Basel, Switzerland (“COMPANY”)
MORPHOSYS and COMPANY may each individually be referred to as a “Party” and collectively as the “Parties”.
Each Party possesses certain information including scientific, technical or business information, which it considers to be proprietary or confidential.
The Parties have concluded that it is in their interest to exchange Confidential Information for the purpose of evaluating potential future business dealings between the Parties related to proprietary programs of MORPHOSYS, including the BET inhibitor pelabresib (“Purpose”).
In consideration of the mutual understanding of the Parties, it is agreed as follows:
1. | DEFINITIONS: |
In addition to the definitions set out in the introductory paragraph of this Agreement, the following terms used in this Agreement shall have the following meaning: |
“Affiliate” shall mean any corporation, firm, limited liability company, partnership or other legal entity that directly or indirectly controls or is controlled by or is under common control with a Party to this Agreement. “Control” or “controlled” means ownership, directly or through one (1) or more Affiliates, of more than fifty percent (50%) of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or more than fifty percent (50%) of the equity interests in the case of any other type of legal entity, status as a general partner in any partnership, or any other arrangement whereby a Party controls or has the right to control the Board of Directors or equivalent governing body of a corporation or other entity. |
“Persons” shall mean, collectively, officers, directors, employees, Persons, consultants, contractors and representatives. |
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CONFIDENTIAL
“Confidential Information” shall mean any and all trade secrets, know-how or scientific, clinical, technical, financial, strategic or business information of Transferor or its Affiliates, whether proprietary or not, that are (A) disclosed or provided by or on behalf of the Transferor for the Purpose prior to, on, or after the Effective Date, whether disclosed (a) in written (or other tangible) form or equivalent, or (b) orally, visually, electronically or otherwise; or (B) accessed or developed by Recipient in the course of its activities or visits at Transferor’s facilities, or in the course of due diligence activities (including access to any data room made available by Transferor) and in each case, whether or not marked, designated, or otherwise identified as “confidential”. The existence and subject of discussions between the Parties, as well as the existence and content of this Agreement, shall be regarded as Confidential Information of both Parties. |
“Person” includes any corporation, partnership, group, individual or other entity. |
“Recipient” shall mean the Party receiving Confidential Information. |
“Transferor” shall mean the Party transferring Confidential Information. |
2. | Either Party may need to involve one or more of its Affiliates to carry out the Purpose. In such case, such Affiliates shall be permitted to disclose or receive Confidential Information to/from the other Party (or its Affiliates also involved to carry out the Purpose) hereunder on behalf of the respective Party. Each Party shall ensure that such Affiliates comply with the obligations of this Agreement with regard to Confidential Information received from the other Party or its involved Affiliates and each Party shall at all times remain fully and directly liable to the other Party for compliance with the terms of this Agreement by its Affiliates involved to carry out the Purpose. |
3. | The Recipient agrees (a) not to use Transferor’s Confidential Information or permit it to be used or accessed for any reason other than for the Purpose, (b) to hold Confidential Information received from the Transferor in confidence, and (c) to protect the Transferor’s Confidential Information from disclosure to the public and to any third parties. Accordingly, Recipient shall employ protective measures fully commensurate with those used by the Recipient to protect its own other confidential information but at all times shall use at least a commercially reasonable degree of care. Such measures shall include restricting access to the Transferor’s Confidential Information only to Recipient’s and Recipient’s Affiliates’ Persons who have a need to know the Confidential Information for carrying out the Purpose provided that such Persons (i) have been informed in advance of the confidential nature of the Transferor’s Confidential Information and (ii) have a legally enforceable obligation to the Recipient or its Affiliates that are at least as restrictive as the obligations of this Agreement. The Recipient shall be responsible for any disclosure or use of the Confidential Information by its or its Affiliates’ Persons. |
The Recipient agrees not to copy, reproduce, or otherwise reduce to writing any part of the Transferor’s Confidential Information except and only as may be reasonably necessary for the Purpose. The Recipient also agrees that any copies, reproductions, or other reductions to writing so made shall be the property of the Transferor. |
4. | The Recipient shall not be liable for the disclosure or use of information that, as Recipient can demonstrate by competent physical evidence: |
(a) | at the time of disclosure has been published, patented or is otherwise publicly available; or |
(b) | after disclosure, becomes publicly available other than through Recipient’s action or omission or breach of this Agreement; or |
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CONFIDENTIAL
(c) | is already in the Recipient’s possession on a non-confidential basis prior to receipt from the Transferor; or |
(d) | becomes known to Recipient from a source that legally obtained such information and is not prohibited from disclosing such Confidential Information to Recipient by legal, fiduciary, or contractual obligations without an obligation of confidentiality or nondisclosure; or |
(e) | was developed without use of or reference to any of Transferor’s Confidential Information provided pursuant to this Agreement; or |
(f) | is disclosed in compliance with Section 5; or |
(g) | is specifically approved in writing by the Transferor for disclosure to a third party by Recipient. |
5. | In the event the Recipient or any of its Persons is required pursuant to applicable law or regulation or an order of a governmental agency, legislative body, or court of competent jurisdiction to disclose any Confidential Information, Recipient shall: (i) provide the Transferor with prompt written notice of such requirement and prior to any disclosure, (ii) cooperate with the Transferor and use commercially reasonable efforts to assist the Transferor, at the Transferor’s expense, in seeking a protective order or obtaining confidential treatment for such Confidential Information or other appropriate remedy, and (iii) limit such disclosure of to the fullest extent permitted under applicable law. |
6. | The terms of confidentiality under this Agreement shall not be construed to limit either Party from independently developing, selling, or acquiring knowledge, information, services, or products of any kind without the use of the other Party’s Confidential Information. |
7. | Nothing in this Agreement shall be construed to impose any obligation on the Parties to disclose Confidential Information to each other, or to enter into any other agreement of any nature, or to result in any claim whatsoever by one Party against the other for reimbursement of costs for any effort expended. Any agreement with respect to the Purpose can only be made in a definitive written agreement, executed on behalf of each Party by authorized representative(s). This Agreement is for protecting Confidential Information only. Each Party reserves all rights in its Confidential Information and no rights or obligations other than those expressly recited herein are granted or to be implied from this Agreement. The Recipient agrees that the Transferor shall retain all rights to the Transferor’s Confidential Information. No license of any such rights to the Recipient is granted or implied, other than the right to use such Confidential Information for the Purpose. |
8. | This Agreement does not constitute a representation, warranty or guarantee to the Recipient by the Transferor with respect to the infringement of patents or other rights of third parties. Transferor makes no representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information disclosed to the Recipient hereunder. All Confidential Information is provided “as is”, and Transferor shall not have any liability whatsoever arising from or relating to Recipient’s or its Person’s use of the Confidential Information disclosed by Transferor hereunder. |
9. | This Agreement, and the relationship between the Parties pursuant thereto, shall be construed, interpreted and applied in accordance with the laws of Germany, without reference to the conflict of law provisions thereof. All disputes arising out of or in connection with the present contract shall be finally settled by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules. The place of arbitration shall be Munich, Germany. Arbitration proceedings shall be conducted in the English language. |
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CONFIDENTIAL
10. | This Agreement shall remain in force for a period of two (2) years from the Effective Date (after which it shall automatically expire), unless terminated on thirty (30) days written notice provided by a Party. The obligation of confidentiality and limited-use under this Agreement, however, shall remain in effect for five (5) years after expiration or from any date of termination of this Agreement. |
11. | Upon such expiration or termination, the Recipient shall promptly (i) stop using the Confidential Information received and (ii) destroy and shall cause its Persons, its Affiliates and its Affiliates’ Persons (as applicable) to destroy all documents and other materials containing or comprising Transferor’s Confidential Information to the extent reasonably possible, or (iii) upon written request of the Transferor, return the same to the Transferor. One copy of documents and other materials containing or comprising Confidential Information may be retained in Recipient’s legal files for archival purposes as a means of determining any continuing obligations under this Agreement. The provisions of this Section 11 shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup, provided, that it is not otherwise accessible to the Recipient’s representatives other than its information technology representatives responsible for maintaining the Recipient’s electronic backup systems, and to Confidential Information or copies thereof which must be stored according to provisions of mandatory law. |
12. | Recipient shall promptly notify Transferor in writing upon becoming aware of any unauthorized release of Confidential Information. Recipient acknowledges and agrees that any breach of its or its Persons obligations under this Agreement will cause irreparable harm to the Transferor; therefore, the transferor shall have, in addition to any remedies available at law, the right to obtain equitable relief to enforce this Agreement without the necessity of posting a bond. |
13. | This Agreement is divisible and separable so that if any provision or provisions hereof shall be held to be invalid, void, voidable or unenforceable, such holding shall not impair the remaining provisions hereof. If any provision hereof is held to be too broad to be enforced, such provision shall be construed to create an obligation to the full extent allowable. |
14. | This Agreement constitutes the entire understanding between the Parties relating to the confidentiality and limited use of the Confidential Information expressly and solely disclosed under this Agreement for the Purpose. Neither Party is an Person, representative or employee of the other Party. Neither Party shall enter into any agreements or incur obligations on behalf of the other Party without such other Party’s prior written consent. |
15. | The Agreement shall be binding upon, and shall inure to the benefit of, the Parties hereto and their permitted successors and assigns. This Agreement may not be assigned, delegated, sold, or transferred, without the prior written consent of the other Party, and any attempted delegation or transfer of rights, duties, or obligations under this Agreement without such written consent shall be void and of no effect. Any Party subject to a change of control, by merger, acquisition or otherwise, shall immediately inform the other Party in writing thereof. |
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CONFIDENTIAL
16. | All notices under this Agreement shall be in writing and shall be sent to the other Party by email to at least 2 email addresses given by such other Party and/or by certified mail return receipt requested at that Party’s address specified above or at such address of which such Party shall give notice as aforesaid, and marked for the attention of that Party’s signatory to this Agreement. |
17. | This Agreement may be executed two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter addressed herein. Any changes, additions or modifications to this Agreement shall be made in writing and shall be executed by the Parties. The Parties agree that, for the execution of this Agreement, and where written form is required under this Agreement, an electronic signature via a generally recognized and personalized electronic signature system is acceptable and complies with such written form requirement and exchanging Pdf signatures shall have the same legal force and effect as the exchange of original signatures. Both Parties acknowledge that upon request by one Party, a hardcopy with wet-ink signatures shall be exchanged in addition to an electronic or Pdf-exchange signature process. |
[Remainder of page left blank. Signature page follows.]
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CONFIDENTIAL
This Agreement is agreed to and accepted by the following individuals having signatory authority to bind the Parties:
MorphoSys AG
(signature) | /s/ i.A. Leonardo Sole | |
Name: | i.A. Leonardo Sole | |
Title/Position: | Director, BD Transactions | |
Date: | November 30, 2023 | |
Novartis Pharma AG | ||
(signature) | /s/ Markus werner | |
Name: | Markus werner | |
Title/Position: | Head S&E Oncology | |
Date: | December 1, 2023 | |
(signature) | /s/ Dominic Ehrismann | |
Name: | Dominic Ehrismann | |
Title/Position: | Head S&E Immunology | |
Date: | December 4, 2023 |
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Ex-Filing Fees
Calculation of Filing Fee Table
Schedule TO-T
(Rule 14d-100)
MorphoSys AG
(Name of Subject Company)
Novartis AG
(Offeror – Name of Filing Person)
Table 1-Transaction Valuation
Transaction Valuation* | Fee Rate | Amount of Filing Fee** | ||||||||||
Fees to Be Paid | $ | 2,804,450,121 | 0.00014760 | $ | 413,937 | |||||||
Fees Previously Paid | $ | 0 | $ | 0 | ||||||||
Total Transaction Valuation | $ | 2,804,450,121 | ||||||||||
Total Fees Due for Filing | $ | 413,937 | ||||||||||
Total Fees Previously Paid | $ | 0 | ||||||||||
Total Fee Offsets | $ | 0 | ||||||||||
Net Fee Due | $ | 413,937 |
* The calculation of the transaction valuation assumes the purchase of no-par value bearer shares (each, a “MorphoSys Share”), of MorphoSys AG (“MorphoSys”), including those MorphoSys Shares represented by American Depositary Shares (“MorphoSys ADSs”) at a purchase price of €68.00 per MorphoSys Share in cash, converted into a purchase price of $73.72 per MorphoSys Share using a rate of 1.0841 U.S. dollars per 1.00 Euro, the noon buying rate as of April 5, 2024 published by the Federal Reserve Bank of New York. The calculation of the transaction valuation is determined by adding the sum of (i) 37,716,423 issued MorphoSys Shares (including MorphoSys Shares held by MorphoSys in treasury) and (ii) 325,494 additional MorphoSys Shares exercisable prior to the expiry of the three (3) month period following the publication of the Offer Document, multiplied by the offer consideration of $73.72 per MorphoSys Share.
** The filing fee was calculated in accordance with Rule 0-11 under the Exchange Act, and the Fee Rate Advisory for Fiscal Year 2024, issued August 25, 2023, by multiplying the transaction valuation by 0.00014760.
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