As filed with the Securities and Exchange
Commission on January 31, 2002.
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------------------------------------------------------
FORM F-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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Novartis AG
(Exact name of issuer of deposited securities as
specified in its charter)
Novartis
Inc.
(Translation of issuer's name into English)
Switzerland
(Jurisdiction of Incorporation or organization of Issuer)
Lichtstrasse 35
CH-4002 Basel
Switzerland
Tel: 011-41-61-324-1111
(Address and telephone number of Registrant's principal executive offices)
Corporation Service Company
2711 Centerville Road, Suite 400
Wilmington, Delaware 19808
Tel: 1-800-927-9800
(Address, including zip code, and telephone number of agent for service)
Copies of all communications to:
David W. Heleniak, Esq.
Shearman & Sterling
599 Lexington Ave.
New York, NY 10022-6069
(212) 848-4000
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. /_/
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. /_/
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. /_/
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. /_/
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Proposed
Proposed Maximum Maximum
Title of Each Class of Amount to be Offering Price Per Aggregate Amount of
Securities to be Registered Registered Share(2) Offering Price(2) Registration Fee
----------------------------------------------------------------------------------------------------------
Ordinary Shares of Novartis AG,
nominal value CHF 0.5 per
share(1)....................... 2,302,801 $34.57 $79,607,831 $19,025
==========================================================================================================
(1) The ordinary shares will be represented by American Depositary Shares
(ADSs), each of which currently represents one ordinary share. A separate
Registration Statement on Form F-6 (Registration No. 333-13446) has been
filed for the registration of American Depositary Shares evidenced by
American Depositary Receipts issuable upon deposit of the ordinary shares.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based upon the
average of the high and low prices for the registrant's ordinary shares
reported on the Swiss Exchange on January 28, 2002 of CHF 59.075 per
ordinary share, translated into U.S. dollars at the noon buying rate in New
York City for cable transfers in Swiss francs as certified for customs
purposes by the Federal Reserve Bank of New York on that date of $1.709 per
CHF.
-----------------------------
The Registration hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that the Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
===============================================================================
The information in this prospectus is not complete and may not be changed. The
selling shareholders may not sell these securites until the registration
statement filed with the Securites and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not an offer to
buy these securities in any state where the offer or sale is not permitted.
Subject to Completion
Preliminary Prospectus dated January 31, 2002
PROSPECTUS
Novartis AG--American Depositary Shares
NOVARTIS AG
2,302,801 AMERICAN DEPOSITARY SHARES
REPRESENTING 2,302,801 ORDINARY SHARES
The selling shareholders set forth on page 6 of this prospectus may
offer and sell from time to time up to 2,302,801 of our American Depositary
Shares under this prospectus. Each ADS represents one ordinary share. The
selling shareholders received the ADSs being offered in this prospectus pursuant
to the acquisition by one of our subsidiaries of substantially all of the assets
of one of the selling shareholders.
The ADSs are listed on the New York Stock Exchange under the ticker
symbol "NVS". On January 28, 2002, the closing sale price on the New York Stock
Exchange of a single ADS was $34.51.
The ADSs beneficially owned by the selling shareholders may be offered
for sale from time to time by the selling shareholders directly or in brokerage
transactions at fixed prices, at prevailing market prices, at varying prices
determined at the time of sale or at negotiated prices. No representation is
made that any ADS will or will not be offered for sale. We will not receive any
proceeds from the sale by the selling shareholders of ADSs. We will pay all
costs, expenses and fees in connection with the registration of the ADSs, except
that all selling commissions and fees incurred by the selling shareholders will
be borne by the selling shareholders.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2002
Table of Contents
Page
Where You Can Find More Information...........................................3
Cautionary Statement Regarding Forward-Looking Statements.....................4
Introduction..................................................................5
Novartis......................................................................5
Use Of Proceeds...............................................................5
Selling Shareholders..........................................................5
Plan Of Distribution..........................................................6
Enforceability of Civil Liabilities...........................................7
Legal Matters.................................................................7
Experts.......................................................................7
-----------------------
The selling shareholders are authorized to offer to sell, and seek
offers to buy, ADSs only in jurisdictions where offers and sales are permitted.
This prospectus does not constitute an offer to sell, or a solicitation of an
offer to buy, any ADS offered hereby by any person in any jurisdiction in which
it is unlawful for such person to make an offer or solicitation.
You should rely only on the information contained or incorporated by
reference in this prospectus or to which we have referred you. We have not
authorized anyone to provide you with information that is different. This
document may only be used where it is legal to sell the ADSs. The information
contained or incorporated by reference in this document is only accurate at its
respective date, and our business, results of operations and financial condition
may change thereafter.
We have prepared this prospectus on the basis of information that we
have or have obtained from sources we believe to be reliable. The discussions of
documents referred to, or incorporated by reference, in this prospectus
summarize those documents and we refer you to the documents for more complete
information. You should consult your own legal, tax and business advisors
regarding an investment in the ADSs.
2
Where You Can Find More Information
We file annual and special reports and other information with the
Securities and Exchange Commission, or the SEC, under the Securities Exchange
Act of 1934, as amended. You may read and copy this information at, or obtain
copies of this information by mail from, the Public Reference Section of the
SEC, 450 Fifth Street, N.W., Room 1024, Washington, DC 20549, at prescribed
rates. You may obtain information on the operation of the Public Reference Room
by calling the SEC at 1-800-SEC-0330.
The SEC also maintains a web site that contains reports and other
information about issuers, like Novartis, who file electronically with the SEC.
The address of the site is www.sec.gov.
We are "incorporating by reference" into this prospectus certain
information we file with the SEC, which means that we are disclosing important
information to you by referring you to those documents. The information
incorporated by reference is deemed to be part of this prospectus. This
prospectus incorporates by reference the documents set forth below that we have
filed previously with the SEC. These documents contain important information
about us and our finances.
Novartis SEC Filings Period
-------------------- ------
Annual Report on Form 20-F Fiscal Year ended December 31, 2000
Half Year Report on Form 6-K Six months ended June 30, 2001
The section entitled "Part II-Item 14. Description of Securities to be
Registered-American Depositary Receipts" included in the registration
statement on Form 20-F/A (File No. I-15024), as filed with the SEC on
May 9, 2000.
All subsequent Annual Reports on Form 20-F we file with the SEC from
the date of this prospectus to the end of the offering of the ADSs under this
prospectus shall also be deemed to be incorporated by reference and will
automatically update information in this prospectus.
Any statements made in this prospectus or in a document incorporated or
deemed to be incorporated by reference in this prospectus will be deemed to be
modified or superseded for purposes of this prospectus to the extent that a
statement contained in this prospectus or in any other subsequently filed
document that is also incorporated or deemed to be incorporated by reference in
this prospectus modifies or supersedes the statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
3
You may request a copy of these filings at no cost, by writing us at
the following address:
Investor Relations
Novartis AG
Lichstrasse 35
CH-4002 Basel
Switzerland
Exhibits to the filings will not be sent, however, unless those
exhibits have specifically been incorporated by reference in this document.
Cautionary Statement Regarding Forward-Looking Statements
This prospectus, including documents incorporated by reference,
contains certain "forward-looking statements" relating to the Novartis Group's
business and the sectors in which the subsidiaries of Novartis AG operate.
Certain forward-looking statements can be identified by the use of
forward-looking terminology such as "believes," "experts," "may," "is expected
to," "will," "will continue," "should," "would be," "seeks" or "anticipates" or
similar expressions or the negative thereof or other variations thereof or
comparable terminology or by discussions of strategy, plans or intentions. Such
statements include descriptions of the Novartis Group's investment and research
and development programs, descriptions of new products the Novartis Group
expects to introduce and anticipated customer demand for such products. Such
statements reflect the Novartis Group's current views with respect to future
events and are subject to certain risks, uncertainties and assumptions. Many
factors could cause the Novartis Group's actual results, performance or
achievements to be materially different from any future results, performances or
achievements that may be expressed or implied by such forward-looking
statements. Should one or more of these risks or uncertainties materialize, or
should underlying assumptions prove incorrect, actual results may vary
materially from those described in this prospectus as anticipated, believed,
estimated or expected. The Novartis Group does not intend and does not assume
any obligation, to update and industry information or forward-looking statements
set out in this prospectus.
4
Introduction
In this prospectus, "Novartis," "we" and "our" refers only to "Novartis
AG" and does not include any current or future subsidiaries of Novartis.
Novartis, together with its consolidated subsidiaries, is referred to as
Novartis Group. References to "U.S. dollars," "USD" or "$" are to the lawful
currency of the United States and references to "Swiss francs" or "CHF" are to
the lawful currency of Switzerland.
Novartis
We were formed in December 1996 as a public company incorporated under
the laws of Switzerland. We are domiciled in and governed by the laws of
Switzerland. Headquartered in Basel, Switzerland, the Novartis Group employs
approximately 70,000 people worldwide. The subsidiaries of the Novartis Group
operate in over 140 countries. Novartis is listed on the Swiss Exchange and the
New York Stock Exchange. Our registered office is located at Lichtstrasse 35,
CH-4002 Basel and its telephone number is 011-41-61-324-1111.
We were created by the merger of Sandoz AG and CIBA-Geigy AG in
December 1996. Prior to the merger, Sandoz AG and CIBA-Geigy AG were each global
participants in the pharmaceutical industry. Novartis's predecessor companies
merged to realize sales, cost and cross-sector synergies, and to create a
combined entity with the resources and ability to compete in the long-term in an
increasingly competitive global environment.
Our subscribed share capital is CHF 1,442,602,340, divided into
2,885,204,680 fully paid-up registered shares, nominal value CHF 0.50 each. We
are a Swiss holding company which owns, directly or indirectly, 100% of all
significant operating companies. For a list of subsidiaries, see note 31 to the
consolidated financial statements, included in our annual report for the year
ended December 31, 2000.
The Novartis Group is a world leader both in sales and in innovation in
its continuing core businesses: pharmaceuticals, generics, consumer health,
eyecare products and medicines, and animal health. We aim to hold a leadership
position in all of these businesses. We are committed to improving health and
well-being through innovative products and services. The name "Novartis" is
derived from the Latin novae artes, meaning "new skills," which reflects the
Novartis Group's focus on research and development.
Use Of Proceeds
All of the net proceeds from the sale of our ADSs covered by this
prospectus will go to the selling shareholders. Accordingly, we will not receive
any of the proceeds from the sale of the ADSs.
Selling Shareholders
The selling shareholders listed below received the ADSs being offered
hereby pursuant to the acquisition by our newly created subsidiary, Novartis
Animal Vaccines, Inc., of substantially all of the assets of Grand Laboratories,
Inc. Pursuant to such acquisition, we agreed to use our reasonable efforts to
register the ADSs issued to the selling shareholders. Our registration of the
ADSs held by the selling shareholders does not necessarily mean the selling
shareholders will sell any or all of their ADSs.
None of our directors or executive officers is selling ADSs in this
offering. This prospectus covers the offer and sale by the selling shareholders
of their ADSs. Set forth below are (i) the names of the selling shareholders,
(ii) the nature of any position, office or other material relationship that they
have had within the past three years with us or any of our predecessors or
affiliates, (iii) the number of ADSs they beneficially own as of January 28,
2002, (iv) the number of ADSs that may be offered and sold by or on their behalf
and (v) the amount of ADSs to be owned by them upon completion of the offering
if all ADSs offered are sold.
5
Selling Shareholders Shares beneficially owned Shares being Shares beneficially owned
-------------------- prior to offering offered after offering
----------------- ------- --------------
Number Percent Number Percent
------ ------- --------------
Grand Laboratories, Inc. 1,987,309 * 1,987,309 __ __
Pankratz Securities Holdings, LLC 244,640 * 244,640 __ __
Etkin & Company, Incorporated 71,214 * 70,852 __ __
_____________________
(1) Comprised of 70,852 shares owned by Etkin & Company, Incorporated and 362
shares owned by the children of William Etkin, President of Etkin & Company,
Incorporated. Etkin & Company, Incorporated disclaims beneficial ownership of
the 362 shares owned by the children of Mr. Etkin.
Plan Of Distribution
We are registering our ADSs on behalf of the selling shareholders. We
will pay for all costs, expenses and fees in connection with the registration of
the shares, except for the fees and disbursements of the selling shareholders'
counsel. The selling shareholders will pay for all selling discounts and
commissions, if any. The selling shareholders may offer and sell their shares
from time to time in one or more of the following types of transactions
(including block transactions):
o on the New York Stock Exchange,
o in the over-the-counter market,
o in privately negotiated transactions or
o a combination of such methods of sale.
The selling shareholders may sell their shares at prevailing market
prices or at privately negotiated prices. Such transactions may or may not
involve brokers or dealers. The selling shareholders may also enter into hedging
transactions with broker-dealers. These broker dealers may in turn engage in
short sales of the shares in the course of hedging their positions. The selling
shareholders have advised us that they have not entered into any agreements,
understanding or arrangements with any underwriters or broker-dealers regarding
the sale of their shares nor is there an underwriter or coordinating broker
acting in connection with the proposed sale of shares by the selling
shareholders.
The selling shareholders may offer and sell their shares directly to
purchasers or to or through broker-dealers, which may act as agents or
principals. Such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the selling shareholders and/or the
purchasers of shares.
We have agreed to indemnify the selling shareholders against certain
liabilities, including liabilities arising under the Securities Act.
Certain of the brokers, dealers or agents and their associates who may
become involved in the sale of the shares may engage in transactions with and
perform other services for us in the ordinary course of their business for which
they receive customary compensation.
6
Enforceability of Civil Liabilities
We are organized under the laws of Switzerland. Substantially all of
our directors and officers, as well as certain of the experts named in this
prospectus, are non-U.S. residents, and a substantial portion of our assets and
the assets of our directors and officers and these experts are and will be
located outside the United States. As a result, you may not be able to effect
service of process within the United States upon these persons or to enforce, in
U.S. courts, against these persons judgments of U.S. courts predicated upon any
civil liability provisions of the U.S. federal or state securities laws. In
addition, you may not be able to enforce certain civil liabilities predicated
upon U.S. federal or state securities laws in Switzerland against us, our
directors and officers, and the persons named in this prospectus.
Legal Matters
The validity of the ordinary shares underlying the ADSs has been passed
upon for us by Bar & Karrer, counsel to Novartis.
Experts
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 20-F for the year ended December 31, 2000 have been
so incorporated in reliance on the reports of PricewaterhouseCoopers AG,
independent accountants, given on the authority of the said firm as experts in
auditing and accounting.
7
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 8. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant does not indemnify its directors and officers with
respect to general civil liability that they may incur in connection with their
activities on behalf of the Registrant.
ITEM 9. EXHIBITS
4 Restricted Issuance Agreement.
5 Opinion of Bar & Karrer regarding the validity of the securities being
registered.
23.1 Consent of PricewaterhouseCoopers AG.
23.2 Consent of Bar & Karrer (included in Exhibit 5 to this Registration
Statement).
24 Power of Attorney (included on signature pages).
ITEM 10. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereto) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that Paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 which are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) If the Registrant is a foreign private issuer, to file a
post-effective amendment to the Registration Statement to include any financial
statements required by Item 8.A of Form 20-F (17 CFR 249.220f) at the start of
any delayed offering or throughout a continuous offering. Financial statements
and information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3 (ss.239.33 of this chapter), a
post-effective amendment need not be filed to include financial statements and
information
II-1
required by Section 10(a)(3) of the Act or ss.210.3-19 of this chapter if such
financial statements and information are contained in periodic reports filed
with or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the form F-3.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of any employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit, or
proceeding) is asserted against the Registrant by such director, officer, or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has theretofore
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Novartis AG
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form F-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Basel, Switzerland, on January 31, 2002.
NOVARTIS AG
By: /s/ DR. DANIEL VASELLA
------------------------------------------------
Name: Dr. Daniel Vasella
Title: Chairman and Chief Executive Officer
By: /s/ DR. RAYMUND BREU
-----------------------------------------------
Name: Dr. Raymund Breu
Title: Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Mr.
Jeff Benjamin, as his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or her and in his or her
name, place, and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and all documents relating thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing necessary or
advisable to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ DR. DANIEL VASELLA Chairman and Chief January 30, 2002
Executive Officer
----------------------------------------
Dr. Daniel Vasella
/s/ DR. RAYMUND BREU Chief Financial Officer January 30, 2002
----------------------------------------
Dr. Raymund Breu
/s/ HANS JORG RUDLOFF Vice-Chairman, Director January 30, 2002
----------------------------------------
Hans Jorg Rudloff
/s/ PROF. DR. HELMUT SIHLER Vice-Chairman, Director January 30, 2002
----------------------------------------
Prof. Dr. Helmut Sihler
/s/ HEINI LIPPUNER Director January 30, 2002
----------------------------------------
Heini Lippuner
II-3
Signature Title Date
--------- ----- ----
/s/ DR. H.C. BIRGIT BREUEL Director January 30, 2002
----------------------------------------
Dr. H.C. Birgit Breuel
/s/ PROF. DR. PETER BURCKHARDT Director January 30, 2002
----------------------------------------
Prof. Dr. Peter Burckhardt
/s/ DR. HANS-ULRICH DOERIG Director January 30, 2002
----------------------------------------
Dr. Hans-Ulrich Doerig
/s/ WALTER G. FREHNER Director January 30, 2002
----------------------------------------
Walter G. Frehner
/s/ WILLIAM W. GEORGE Director January 29, 2002
----------------------------------------
William W. George
/s/ ALEXANDRE F. JETZER Director January 30, 2002
----------------------------------------
Alexandre F. Jetzer
/s/ PIERRE LANDOLT Director January 30, 2002
----------------------------------------
Pierre Landolt
/s/ PROF. DR. ROLF ZINKERNAGEL Director January 30, 2002
----------------------------------------
Prof. Dr. Rolf Zinkernagel
---------------------------------------- Authorized Representative in
Terry Barnett the United States
II-4
INDEX TO EXHIBITS
Exhibit No. Description
----------- -----------
4 Restricted Issuance Agreement.
5 Opinion of Bar & Karrer regarding the validity of the
securities being registered.
23.1 Consent of PricewaterhouseCoopers AG.
23.2 Consent of Bar & Karrer (included in Exhibit 5 to this
Registration Statement).
24 Power of Attorney (included on signature pages).
II-5
EXHIBIT 4
RESTRICTED ISSUANCE AGREEMENT
RESTRICTED ISSUANCE AGREEMENT dated as of January 11, 2002 (the
"Agreement") supplemental to the Amended and Restated Depositary Agreement dated
as of May 11, 2000 (the "Deposit Agreement") among Novartis AG, a corporation
organized under the laws of Switzerland, and its successors (the "Company"),
JPMorgan Chase Bank, as depositary (the "Depositary"), and all Holders from time
to time of American Depositary Receipts (the "ADRs") issued thereunder.
WITNESSETH:
WHEREAS, the Company and the Depositary executed the Deposit Agreement
for the purposes set forth therein;
WHEREAS, notwithstanding Sections 3 and 4 of the Deposit Agreement and
paragraph (1) of the form of ADR, the Company has requested that the Depositary
accept one or more deposits of Shares which may not be freely transferred at the
time of deposit in accordance with Rule 144 or Rule 145 under the Securities Act
of 1933, as amended (the "Securities Act") (such securities, "Limited Transfer
Securities") into a parallel facility to the ADR facility established pursuant
to the Deposit Agreement;
WHEREAS, the Company desires that, upon a deposit of Limited Transfer
Securities, restricted ADSs be issued to or upon the order of the depositor upon
compliance with the provisions of the Deposit Agreement governing the deposit of
Shares and that such restricted ADSs be subject to terms and conditions of the
Deposit Agreement and the further terms, conditions and restrictions set forth
herein; and
WHEREAS, the Company and the Depositary desire to enter into this
agreement in order to permit the issuance of such restricted ADSs under the
Deposit Agreement as supplemented hereby and the delivery thereof to or upon the
order of the depositor (such person or entity entitled to receive such
restricted ADSs being the "Depositee" and each such issuance being a
"Transaction").
II-6
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth and for other good and valuable consideration, the Company and
the Depositary hereby agree as follow:
Section 1. Definitions. Unless otherwise defined in this Agreement,
terms which are defined in the Deposit Agreement are used herein as therein
defined.
Section 2. Incorporation by Reference. Except to the extent modified
hereby, all terms and conditions of the Deposit Agreement are incorporated
herein by reference and deemed to be a part hereof.
Section 3. Issuance of Restricted ADRs. The Depositary shall issue
Restricted ADSs upon the proper deposit of Shares with the Custodian, receipt by
the Depositary of issuance instructions in proper form, and compliance with any
other applicable provisions of the Deposit Agreement as incorporated herein.
Until such time as the Depositary has received an opinion of U.S. counsel to the
Company (or, at the option of the Company, counsel to the Depositee), in form
and substance reasonably satisfactory to counsel to the Depositary stating that
in connection with the resale of the restricted ADSs, the Shares underlying the
restricted ADSs have been registered under the Securities Act or that such
restricted ADSs (as well as those restricted ADSs issued on the transfer,
split-up or combination thereof)may be freely transferred under Rule 144 or Rule
145 promulgated under the Securities Act or another applicable exemption from
the registration requirements thereof, any restricted ADSs issued in connection
with a Transaction or on the transfer, split-up or combination thereof shall be
issued in book-entry form with the following notation set forth on the
Depositary's books (the "Legend"):
THE SECURITIES REPRESENTED BY THIS RECEIPT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") AND ARE "RESTRICTED SECURITIES" AS DEFINED IN RULE 144
PROMULGATED UNDER THE ACT. THE SECURITIES MAY NOT BE SOLD OR
OFFERED FOR SALE OR OTHERWISE DISTRIBUTED EXCEPT (i) IN
CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SHARES UNDER THE ACT OR (ii) IN COMPLIANCE WITH RULE 144, OR (iii)
PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION,
THAT SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SAID
SALE, OFFER OR DISTRIBUTION.
Section 4. Segregation of Deposited Securities. Prior to the issuance
of any restricted ADSs and so long as such ADSs are restricted, to the extent
possible under the rules and procedures of the Swiss securities markets, the
Depositary shall instruct the Custodian to hold all Deposited Securities to be
evidenced by the restricted
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ADSs represented by the restricted ADRs in an account or accounts that are
segregated and separate from any other account or accounts in which other Shares
of the Company m ay be held.
Section 5. Form of ADSs. At the discretion of the Depositary, any
restricted ADSs to be issued containing the Legend may be issued through the
book-entry registration system maintained by the Depositary or in such other
form as the Depositary shall so desire. If safety paper is utilized, such ADR
shall not set forth the CUSIP number present on the other ADRs issued under the
Deposit Agreement.
Section 6. Terms and Conditions Applicable to ADSs. Subject to the
further terms, conditions and restrictions set forth herein, al terms and
provisions of the Deposit Agreement are and shall continue to be in full force
and effect and are hereby in all respects ratified, confirmed and incorporated
by reference herein. No person depositing a Limited Transfer Security shall be
deemed under paragraph (1) of the form of ADR or any other provisions thereof or
of the Deposit Agreement, to represent and warrant that such security is not a
Limited Transfer Security or that the transfer of such security is not
restricted pursuant to Rule 144 or Rule 145.
Section 7. Inconsistent Provisions. To the extent that any term or
provision of this Agreement shall be inconsistent with the term or provision of
the Deposit Agreement, the terms and conditions of this Agreement shall take
precedence only to the extent of such inconsistency.
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IN WITNESS WHEREOF, NOVARTIS AG and JPMORGAN CHAS BANK have duly
executed this Agreement as of January 11, 2002.
NOVARTIS AG
By /s/ Nic Burgin
------------------------
Name: Nic Burgin
Title: Corporate Counsel
JPMORGAN CHASE BANK
By /s/ J.M. Manser
------------------------
Name: J.M.Manser
Title:
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EXHIBIT 5
[LETTERHEAD OF BAR & KARRER]
Novartis International AG
WSJ 200.134
Lichstrasse 35
4001 Basle
Geneva, 31 January, 2002
Dear Sirs,
We have acted as counsel to Novartis AG, a company organized under the laws of
Switzerland ("Novartis"), in connection with the Registration Statement on Form
F-3 referenced above (the "Registration Statement") filed by Novartis with the
Securities and Exchange Commission (the "SEC") pursuant to the Securities Act of
1933, as amended (the "Securities Act"), relating to 2,302,801 ordinary shares
of Novartis, nominal value CHF 0.5 per share (the "Ordinary Shares"), to be sold
in the form of American Depositary Shares ("ADS"), each ADS representing the
right to receive one (1) Ordinary Share.
The number of Ordinary Shares included in the Registration Statement include:
(1) Ordinary Shares which underlie ADSs that are purchased in the open
market or in privately negotiated transactions in the manner
described in the Registration Statement; and
(2) Treasury or newly issued Ordinary Shares of Novartis, to be
deposited with the Depositary pursuant to the Deposit Agreement
among Novartis, the Depositary and holders and beneficial owners
of ADSs issued thereunder, dated as of May 7, 2001 (a copy of
which is filed as an exhibit to Novartis' registration statement
on Form F-6, Registration No. 333-13446), as amended on January
11, 2002 (a copy of such amendment is filed as Exhibit 4 to the
Registration Statement) (as amended, the "Deposit Agreement"), and
to be represented by newly issued ADSs.
We are of the opinion that, upon issuance, delivery and full payment therefor,
in the manner described in the Registration Statement, in accordance with the
Swiss Code of obligations and in accordance with terms of the Deposit Agreement,
the Ordinary Shares included in the Registration Statement will be duly
authorized, validly issued and outstanding, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference of our firm under the caption "Legal
Matters" in the prospectus forming a part of the Registration Statement.
Yours sincerely,
/s/ Christophe Buchwalder
----------------------------------------
Christophe Buchwalder
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EXHIBIT 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this
Registration Statement on Form F-3 of our reports dated January 31, 2001
relating to the consolidated financial statements and financial statement
schedule, which appear in Novartis AG's Annual Report on Form 20-F for the year
ended December 31, 2000. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS AG
PricewaterhouseCoopers AG
Basel, Switzerland
January 31, 2002
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