ACCEPTANCE PERIOD ENDS ON 17 APRIL 2023 AT 17:40 CEST
THIS PRESS RELEASE IS NOT FOR GENERAL RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, IN OR INTO, DIRECTLY OR INDIRECTLY, THE UNITED STATES OR ANY OTHER JURISDICTION WHERE SUCH RELEASE, PUBLICATION OR DISTRIBUTION WOULD VIOLATE APPLICABLE LAWS OR REGULATIONS
This is a joint press release by Koninklijke DSM N.V. (DSM), Firmenich International SA (Firmenich) and Danube AG, to be renamed DSM-Firmenich AG (the Company or DSM-Firmenich) in connection with the voluntary public exchange offer by the Company for all the issued and outstanding ordinary shares in the share capital of DSM (each such share, a DSM Ordinary Share) (the Exchange Offer)), pursuant to Section 4, paragraph 3 of the Dutch Decree on Public Takeover Bids (Besluit openbare biedingen Wft). The Exchange Offer is not being made, and the DSM Ordinary Shares will not be accepted for purchase from or on behalf of any holder of DSM Ordinary Shares (a DSM Shareholder), in any jurisdiction in which the making of the Exchange Offer or acceptance thereof would not be in compliance with the securities or other laws or regulations of such jurisdiction or would require any registration, approval or filing with any regulatory authority not expressly contemplated by the terms of the offering circular in relation to the Exchange Offer dated 22 November 2022 (the Offering Circular).
KAISERAUGST, Switzerland and HEERLEN, Netherlands and GENEVA, April 4, 2023 /PRNewswire/ — DSM and Firmenich jointly announce that they have obtained competition clearance from the Competition Commission of India (CCI) on 3 April 2023.1 DSM and Firmenich now have competition clearance in all required jurisdictions, as a result of which the Transaction Condition relating to the competition clearances has now been satisfied.
1 Reference is made to the CCI’s press release No. 78/2022-23, available here: https://www.cci.gov.in/media-gallery/press-release/details/289/0.
Acceptance periodIn accordance with the exemption (ontheffing) granted by the Netherlands Authority for the Financial Markets (AFM) on 30 March 2023 and as set out in our joint press release of 31 March 2023, the extended acceptance period will expire on 17 April 2023 at 17:40 CEST. Certain intermediaries may set an earlier deadline in order to be able to timely communicate the tender to the exchange agent. For more information, please see the paragraph ‘Indicative timetable’ below and section 14.9 of the Offering Circular.
The DSM Boards unanimously reiterate the recommendation to the DSM Shareholders to tender their DSM Ordinary Shares into the Exchange Offer.
Antitrust investigationAs indicated in our press release of 31 March 2023, Firmenich announced on 8 March 2023 that four antitrust authorities have started an industry wide investigation, and that unannounced inspections were carried out at Firmenich’s offices in France, Switzerland and the UK. Firmenich and DSM will provide a further update to the market shortly by way of a supplement to the Offering Circular.
Indicative timetableOn the basis that all other Transaction Conditions will be satisfied as well on 17 April 2023, the indicative timetable below lists the expected key dates for the remainder of the Exchange Offer and the Transactions.
These dates and times are subject to change and references to time are to CEST.
Acceptance of the Exchange Offer by DSM Shareholders
Acceptance by DSM Shareholders through Admitted InstitutionsDSM Shareholders who hold their DSM Ordinary Shares through an institution admitted to Euronext Amsterdam and/or Euroclear Nederland (aangesloten instelling) (an Admitted Institution) must make their acceptance known through their bank or stockbroker no later than 17:40 hours CEST on the Acceptance Closing Date. The custodian, bank or stockbroker may set an earlier deadline for communication by the DSM Shareholders in order to permit the custodian, bank or stockbroker to communicate its acceptances to the Settlement Agent in a timely manner. Accordingly, the DSM Shareholders holding DSM Ordinary Shares through a financial intermediary should comply with the dates communicated by such financial intermediary.
Acceptance by DSM Shareholders located in the United StatesDSM Shareholders located in the United States who hold their DSM Ordinary Shares through a custodian, bank or stockbroker are requested to make their acceptance known through their bank or stockbroker as set out in section 16.1 (United States of America) of the Offering Circular.
If a beneficiary to DSM Ordinary Shares located in the United States is unable to make the QIB Confirmations on behalf of itself or the person on whose behalf such DSM Ordinary Shares are held, any DSM-Firmenich Ordinary Shares allotted to such person will instead be transferred to a nominee, and such DSM-Firmenich Ordinary Shares will be sold on his, her or its behalf with the proceeds being remitted to such person within five days of the Settlement Date, for DSM-Firmenich Ordinary Shares allotted in exchange for DSM Ordinary Shares tendered during the Acceptance Period, or within five days of the Post-Closing Acceptance Settlement Date, for DSM-Firmenich Ordinary Shares allotted in exchange for DSM Ordinary Shares tendered during any Post-Closing Acceptance Period.
AnnouncementsAnnouncements in relation to the exchange offer are issued by means of a press release. Any joint press release issued by the Company, DSM and Firmenich is made available on the website of the Company ( www.creator-innovator.com).
Subject to any applicable requirements of the applicable laws and without limiting the manner in which the Company, DSM and Firmenich may choose to make any public announcement, the Company, DSM and Firmenich will have no obligation to communicate any public announcement other than as described in the Offering Circular.
Further informationCapitalised terms used but not defined herein are defined in the Offering Circular. This announcement contains selected, condensed information regarding the Exchange Offer and does not replace the Offering Circular. The information in this announcement is not complete and additional information is contained in the Offering Circular. A digital copy of the Offering Circular is available on the website of the Company ( www.creator-innovator.com/en/offering-circular-and-egm/).
General restrictionsThe Exchange Offer is being made in and from the Netherlands with due observance of such statements, conditions and restrictions as are included in the Offering Circular. The Company reserves the right to accept any tender under the Exchange Offer, which is made by or on behalf of a DSM Shareholder, even if it has not been made in the manner set out in the Offering Circular.
The distribution of the Offering Circular and/or the making of the Exchange Offer in jurisdictions other than the Netherlands may be restricted and/or prohibited by law. In particular, subject to certain exceptions, the Offering Circular is not for general circulation in the United States. The Exchange Offer is not being made, and the DSM Ordinary Shares will not be accepted for purchase from or on behalf of any DSM Shareholder, in any jurisdiction in which the making of the Exchange Offer or acceptance thereof would not be in compliance with the securities or other laws or regulations of such jurisdiction or would require any registration, approval or filing with any regulatory authority not expressly contemplated by the terms of the Offering Circular. Persons obtaining the Offering Circular are required to take due note and observe all such restrictions and obtain any necessary authorisations, approvals or consents (to the extent applicable). Outside of the Netherlands, no actions have been taken (nor will actions be taken) to make the Exchange Offer possible in any jurisdiction where such actions would be required. In addition, the Offering Circular has not been filed with nor recognised by the authorities of any jurisdiction other than the Netherlands. Neither the Company, nor DSM, nor Firmenich, nor any of their advisers accept any liability for any violation by any person of any such restriction. Any person (including, without limitation, custodians, nominees and trustees) who forwards or intends to forward the Offering Circular or any related document to any jurisdiction outside the Netherlands should carefully read section 16 (Restrictions) and section 17 (Important Information) of the Offering Circular before taking any action. The release, publication or distribution of the Offering Circular and any documentation regarding the Exchange Offer, the making of the Exchange Offer or the issuance and offering of the DSM-Firmenich Ordinary Shares in jurisdictions other than the Netherlands may be restricted by law and therefore persons into whose possession the Offering Circular comes should inform themselves about and observe such restrictions. Any failure to comply with any such restrictions may constitute a violation of the law of any such jurisdiction.
United States of AmericaUnless otherwise determined by the Company, the Exchange Offer is not being, and will not be, made, directly or indirectly, in or into, or by the use of the mails of, or by any means or instrumentality (including, without limitation, telephonically or electronically) of, interstate or foreign commerce of, or of any facilities of a national securities exchange of, the United States except to DSM Shareholders who (i) are “qualified institutional buyers” as such term is defined in Rule 144A under the U.S. Securities Act of 1933, as amended (the U.S. Securities Act, and each such person, a QIB) and (ii), to the Company’s satisfaction (in its sole discretion), have duly completed and returned to the Company a letter confirming that it is a QIB and agreeing to certain transfer restrictions applicable to the DSM-Firmenich Ordinary Shares (a U.S. Investor Letter) available from the Company (each an Eligible U.S. Holder). Accordingly, to be eligible to receive DSM-Firmenich Ordinary Shares under the Exchange Offer, each DSM Shareholder that is a U.S. Person and that is a QIB must make their acceptance known through their custodian, bank or stockbroker by executing and delivering a U.S. Investor letter to such custodian or intermediary no later than 17:40 hours CEST on the Acceptance Closing Date. The custodian, bank or stockbroker may set an earlier deadline for communication by DSM Shareholders in order to permit the custodian, bank or stockbroker to communicate its acceptances to the Settlement Agent (ABN AMRO) in a timely manner. Accordingly, Eligible U.S. Holders holding DSM Ordinary Shares through a financial intermediary should comply with the dates communicated by such financial intermediary, as such dates may differ from the dates and times noted in the Offering Circular.
The form of a U.S. Investor Letter will be distributed to custodians, nominees and other financial intermediaries to distribute to those they hold for in due course and is also available to QIBs from the Company. Any U.S. Person who is not a QIB, or in respect of whom no U.S. Investor Letter is received before 17:40 hours CEST on the Acceptance Closing Date, will be a Restricted Shareholder and will be treated as set out under section 14.35 (Notice to DSM Shareholders in certain jurisdictions) of the Offering Circular.
The DSM-Firmenich Ordinary Shares have not been and will not be registered under the U.S. Securities Act or any other applicable law of the United States and accordingly, the DSM-Firmenich Ordinary Shares may not be reoffered, resold or transferred, directly or indirectly, in or into the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the U.S. Securities Act.
Any DSM Shareholder located in the United States at the time of the Transactions will be required to make certain representations, warranties and undertakings in respect of their status as QIB (the QIB Confirmations), in order to receive the DSM-Firmenich Ordinary Shares on the Post-Closing Acceptance Settlement Date.
If a beneficiary to DSM Ordinary Shares located in the United States is unable to make the QIB Confirmations on behalf of itself or the person on whose behalf such DSM Ordinary Shares are held, any DSM-Firmenich Ordinary Shares allotted to such person will instead be transferred to a sales agent, and such DSM-Firmenich Ordinary Shares will be sold on his, her or its behalf with the proceeds being remitted to such person within five days of the Settlement Date, for DSM-Firmenich Ordinary Shares allotted in exchange for DSM Ordinary Shares tendered during the Acceptance Period, or within five days of the Post-Closing Acceptance Settlement Date, for DSM-Firmenich Ordinary Shares allotted in exchange for DSM Ordinary Shares tendered during any Post-Closing Acceptance Period.
Additional information is included in section 16.1 (United States of America) of the Offering Circular.
Forward looking statementsCertain statements in this press release other than statements of historical facts are forward-looking statements. These forward-looking statements are based on the Company’s current beliefs and projections and on information currently available to the Company. These forward-looking statements are subject to a number of risks and uncertainties, many of which are beyond the Company’s control and all of which are based on its current beliefs and expectations about future events. Forward-looking statements are typically identified by the use of forward-looking terminology such as “believe”, “expect”, “may”, “will”, “seek”, “would”, “could”, “should”, “intend”, “estimate”, “plan”, “assume”, “predict”, “anticipate”, “annualised”, “goal”, “target”, “potential”, “continue”, “hope”, “objective”, “position”, “project”, “risk” or “aim” or the highlights or negatives thereof or other variations thereof or comparable terminology, or by discussions of DSM-Firmenich’s strategy, short-term and mid-term objectives and future plans that involve risks and uncertainties.
Forward-looking statements involve inherent risks and uncertainties and speak only as of the date they are made. Except as required by applicable law, the Company does not undertake and it expressly disclaims any duty to update or revise publicly any forward-looking statement in this press release, whether as a result of new information, future events or otherwise. Such forward-looking statements are based on current beliefs, assumptions, expectations, estimates and projections of the Directors in office at the time of this press release and the Company’s management, public statements made by it, present and future business strategies and the environment in which DSM-Firmenich will operate in the future. By their nature, they are subject to known and unknown risks and uncertainties, which could cause DSM-Firmenich’s actual results and future events to differ materially from those implied or expressed by forward-looking statements. The DSM Shareholders and other prospective investors are advised to read section 2 (Risk Factors) of the Offering Circular for a more complete discussion of the factors that could affect the DSM-Firmenich’s future performance and the industry in which DSM-Firmenich operates. Should one or more of these risks or uncertainties materialise, or should any of the assumptions underlying the above or other factors prove to be incorrect, DSM-Firmenich’s actual results of operations or future financial condition could differ materially from those described herein as currently anticipated, believed, estimated or expected. In light of the risks, uncertainties and assumptions underlying the above factors, the forward-looking events described in the Offering Circular may not occur or be realised. Additional risks not known to the Company or that the Company does not currently consider material could also cause the forward-looking events discussed in the Offering Circular not to occur.
About FirmenichFirmenich, the world’s largest privately-owned fragrance and taste company, was founded in Geneva, Switzerland, in 1895, and has been family-owned for 127 years. Firmenich is a business-to-business company specialized in the research, creation, manufacture and sale of perfumes, flavors, and ingredients. Renowned for its excellent research, as well as its leadership in sustainability, Firmenich offers its customers innovation in formulation, a broad palette of ingredients, and proprietary technologies such as biotechnology. Firmenich delivered CHF 4.7bn of sales in the financial year ended 30 June 2022.
About DSMDSM has transformed during its 150 year history into today’s health, nutrition
Transaction websitePlease visit www.creator-innovator.com for additional materials on the Transactions.
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