As filed with the Securities and Exchange Commission on October 4, 2018
Registration No. 333-
 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
MorphoSys AG
(Exact name of registrant as specified in its charter)
Germany
Not Applicable
(State or other jurisdiction of incorporation or organization)
(I.R.S. Employer Identification No.)
Semmelweisstrasse 7
82152 Planegg
Germany
Telephone: +49 89-89927-0
(Address of Principal Executive Offices)
Offer of Employment
(Full title of the plan)
_____________________
MorphoSys US Inc.
100 Overlook Center, Suite #2109
Princeton, NJ 08540
(Name and Address of Agent For Service)
Tel: +1 (973)-978-4835
(Telephone Number, Including Area Code, of Agent For Service)

Copy to:
 
Stephan Hutter
Skadden, Arps, Slate, Meagher & Flom LLP
TaunusTurm
Taunustor 1
60310 Frankfurt am Main
Germany
Tel: +49 69 74220 0
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer  ☐
Accelerated filer  ☐
Non-accelerated filer  ☑
(Do not check if a smaller reporting company)
Smaller reporting company   ☐




CALCULATION OF REGISTRATION FEE
Title of securities to be registered
 
Amount to be registered (1)
 
Proposed maximum offering
price per share (2)
 
Proposed maximum aggregate offering price
 
Amount of registration fee
Ordinary Shares, no par value
 
3,104
 
$106.04
 
$329,149
 
$39.90
 
(1)
This Registration Statement shall also cover any additional ordinary shares, no par value (“Ordinary Shares”) of MorphoSys AG (the “Company”), that become issuable in respect of the securities identified in the above table by reason of any share dividend, share split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of Ordinary Shares registered hereunder.
(2)
Pursuant to Rule 457(h) under the Securities Act, the proposed maximum offering price of the Ordinary Shares being registered hereby is not known and has been determined in accordance with Rule 457(h)(1) and 457(c) based on the average high and low price of the Ordinary Shares on October 2, 2018.



PART I.

INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
All information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933 (the “Securities Act”) and the Note to Part I of Form S-8.
PART II.

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with or furnished to the Securities and Exchange Commission (the “Commission”) by the Registrant are incorporated herein by reference:
(a) The Registrant’s prospectus dated April 18, 2018 filed with the Commission on April 19, 2018 pursuant to Rule 424(b)(4) under the Securities Act;
(b) The Registrant’s Report of a Foreign Issuer on Form 6-K furnished to the Commission on May 2, 2018;
(c) The Registrant’s Report of a Foreign Issuer on Form 6-K furnished to the Commission on August 2, 2018;
(c) The description of the Registrant’s ordinary shares incorporated by reference in the Registrant’s registration statement on Form 8-A (File No. 001-38455) filed with the Commission on April 26, 2013.
All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”), and, to the extent designated therein, certain reports on Form 6-K the Registrant submits to the Commission after the date hereof, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that is or is deemed to be incorporated by reference herein modifies or supersedes such previous statement. Any statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.




Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under German law, the Registrant may not, as a general matter, indemnify members of its management board and supervisory board. Certain limited exceptions may apply if the indemnification is in the legitimate interest of the Registrant. The Registrant will indemnify our management board and supervisory board members, to the extent permissible under German law, from and against any liabilities arising out of or in connection with their services for the Registrant.

The Registrant provides directors’ and officers’ liability insurance for the members of its management and supervisory boards against civil liabilities, including liability under the Securities Act, which they may incur in connection with their activities on behalf of the Registrant.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The list of exhibits is set forth under “Index of Exhibits” at the end of this registration statement and is incorporated herein by reference.
Item 9. Undertakings.
(a) 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;
(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 thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and
(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 (a)(1)(i) and (a)(1)(ii) shall not apply if the information required to be included in a post-effective amendment of this Registration Statement by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities 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 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 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 Securities Act and will be governed by the final adjudication of such issue.




SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto authorized, in the city of Planegg, Germany on this, the 4 th day of October 2018.

 
MorphoSys AG
       
       
 
By:     
/s/ Dr. Simon E. Moroney
 
 
Name: Dr. Simon E. Moroney
 
 
Title: Chief Executive Officer
 







POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Dr. Simon E. Moroney and Jens Holstein, and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them singly, for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 of MorphoSys AG, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to the attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney may be executed in counterparts.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons, in the capacities indicated and on the 4 th day of October 2018.
Signature
 
Title
     
     
/s/ Dr. Simon E. Moroney
 
Chief Executive Officer
Name: Dr. Simon E. Moroney
   
     
     
/s/ Jens Holstein
 
Chief Financial Officer and Principal
Name: Jens Holstein
 
Accounting Officer
     
     
/s/ Dr. Marc Cluzel
 
Chairman of the Supervisory Board
Name: Dr. Marc Cluzel
   
     
     
/s/ Dr. Frank Morich
 
Deputy Chairman of the Supervisory Board
Name: Dr. Frank Morich
   
     
     
/s/ Krisja Vermeylen
 
Member of the Supervisory Board
Name: Krisja Vermeylen
   
     
     
/s/ Wendy Johnson
 
Member of the Supervisory Board
Name: Wendy Johnson
   
     
     
/s/ George Golumbeski
 
Member of the Supervisory Board
Name: George Golumbeski
   
     
 




 
     
/s/ Michael Brosnan
 
Member of the Supervisory Board
Name: Michael Brosnan
   
     
     
/s/ Jennifer L. Herron
 
Authorized Representative in the United States
Name: Jennifer L. Herron
 







INDEX OF EXHIBITS

Exhibit
Number    
 
Description
     
 
 
 
 
 
 
 
23.2
 
Consent of Jan Ischdonat and Klaus de Wall (included in the opinion filed as Exhibit 5.1)
24.1
 
Power of Attorney (included on the signature page of this Registration Statement)





Exhibit 4.3





MorphoSys US Inc. n 100 Overlook Center Suite #2109 n Princeton, NJ  08540


September 6, 2018

James Hussey
15 Mulberry Drive
Hawthorn Woods, IL  60047

Re: Offer of Employment

Dear James,
On behalf of MorphoSys US Inc. (the “Company”), we are pleased to offer you a part-time position as Special Advisor to the Chairman. Your employment is subject to the terms and conditions set forth in this letter and to all of the Company’s applicable employment and other policies in effect from time to time, including the Company’s employee handbook.
1.
Start Date .  Your employment will start on September 10, 2018 or on such other date as you and the Company mutually agree (“Start Date”).
2.
Position .  In your position as Special Advisor to the Chairman, you will report to the Chairman of MorphoSys US Inc. (“Supervisor”). During your employment, you will be expected to comply with all instructions and directions given to you by the Supervisor and his designees, as appointed by the Supervisor in writing from time to time, all applicable laws and regulations, and the Company’s internal guidelines and policies in effect from time to time.  Your employment is part-time (70%), and unless otherwise instructed by the Supervisor, you may determine your work time at your discretion.  During your work time, you agree to devote your best efforts to the performance of your duties in furtherance of the Company’s business.  A copy of your job description is attached as Exhibit A, as the same may be changed by the Company from time to time.
3.
Compensation . In consideration of your services, your compensation will be as follows:
a.
Base Salary .  Your annual   base salary will be $370,000.00 (“Base Salary”), payable in 24 equal semi-monthly installments in accordance with the Company’s standard payroll schedule.
b.
Annual Bonus .  You will be eligible for a target annual bonus of 50% of your Base Salary for 100% achievement of your agreed upon targets (“Annual Bonus”).   If you do not reach 100% of your targets, you will be eligible for a prorated amount of the Annual Bonus.  Your targets will be agreed upon by you and the Company for each business year by January 31 of the applicable business year.  However, for the 2018 business year, your targets will be established within four (4) weeks of your Start Date.  If you are eligible for an Annual Bonus as to any business year during your employment, such Annual Bonus shall be payable on or prior to March 15 of the following business year. For partial years of employment, you will be eligible for a prorated bonus amount.
c.
Initial Equity Grant. On or as soon as practicable following your Start Date, but no later than thirty (30) business days thereafter, including – if applicable – following
- 1 -


registration under the Securities Act of 1933 (the “ Grant Date ”), MorphoSys AG (the “ Parent Company ”) shall grant you equity in the form of Parent Company (“ MOR ”) ordinary shares, stemming from treasury shares held by Parent Company (the “ Shares ”), in accordance with the terms and conditions set forth herein.  Parent Company shall make such equity grant to you with an overall value of $370,000.00 (the “ Initial Equity Grant ”), with the number of Shares to be granted determined by dividing $370,000.00 by the average closing price of MOR Shares as quoted in Xetra on the Frankfurt Stock Exchange ( Frankfurter Wertpapierbörse , FWB ) on the thirty (30) trading days prior to the Start Date and rounding down to the nearest whole Share.  The Initial Equity Grant will be subject to a monthly vesting schedule, with 100% of the Shares fully vesting on the first anniversary of the Grant Date, provided that you are still employed with the Company on the respective vesting dates.  The Initial Equity Grant and each vesting of such grant shall be subject in all respects to applicable U.S. securities laws. For purposes of clarity, you shall have no claim or right to shares that have not vested as of the date of your termination from employment.
d.
Long-Term Incentive Program .  You will be eligible to participate in a long-term incentive compensation (“ LTIC ”) program with an annual grant value of $210,000.00 (the “ LTIC Award ”).   The Company, in its sole and unilateral discretion, may elect to pay greater LTIC in any year, based on the Company’s annual, financial and operating performance and any other factors that the Company may deem appropriate.  The Company is currently working to establish the LTIC program. Payment, vesting scheduling, and all other terms of such incentive award shall be subject to the applicable LTIC program as in effect from time to time.
e.
Clawback Provisions.  Any amounts payable under this offer letter are subject to any policy (whether in existence as of the date of this letter or later adopted) established by the Company providing for clawback or recovery of amounts that were paid to you. The Company will make any determination for clawback or recovery in its sole discretion and in accordance with any applicable law or regulation.
f.
Withholdings .  All compensation you receive from the Company will be less applicable taxes and payroll deductions and payable in accordance with the Company’s standard payroll practices as in effect from time to time.  The compensation is subject to any applicable law, rule and regulation.
4.
Benefits .  At this time, the Company does not participate in any benefit plans but fully intends to establish at least industry-standard benefit programs including medical insurance, dental and vision plans, 401(k) retirement, short-term and long-term disability, and group life insurance. You will be eligible to participate in any benefit plans and programs that the Company may make available to similarly situated employees on the terms and conditions offered to such employees.  Eligibility and participation in any such plans will be governed by the applicable documents governing each such plan.
5.
Paid Time Off . In addition to Company recognized public holidays, you will be entitled to fourteen (14) days of paid time off per year pursuant to the Company’s policies as may be in effect from time to time. These days will be prorated in any partial year of employment.
- 2 -



6.
Work Authorization .  Federal law requires the Company to document an employee’s authorization to work in the United States. To comply, the Company must have a completed I-9 Form for you within (3) three business days of your start date. You agree to provide the Company with the necessary documents required by the I-9 Form to confirm that you are authorized to work in the United States. The form I-9 will be provided to you along with all other documents on the date of your hire.

7.
Restrictive Covenants .  By signing this letter, you represent and acknowledge that (i) you are not subject to any employment agreement or any other agreement that would preclude the Company from offering this position to you or from you accepting this position and joining our organization; and (ii) you will not be asked or required to disclose to us or utilize any confidential or proprietary information from your prior places of employment and you understand that you must not do so.
8.
Confidentiality .  As a condition to employment, on or prior to the commencement of your employment, you must sign a confidentiality, agreement, requiring you to maintain the confidentiality of the Company’s trade secret and confidential information and to adhere to certain other restrictive covenants and obligations concerning the Company’s proprietary information, including non-competition, non-solicitation of employees and non-solicitation of customers.  A copy of the Company’s Confidentiality, Inventions and Restrictive Covenants Agreement is attached as Exhibit B.  Please review and return a signed copy of the agreement along with a countersigned copy of this letter prior to the Start Date.
9.
Background Check . Because of the nature of our business, our offer of employment and any continued employment may be contingent upon the results of a background investigation, including your education, your previous employment, criminal record and other facts that we deem relevant in our sole discretion and as otherwise permitted by law.
10.
At-Will Employment .  Your employment with the Company is not for any specific period of time; instead, your employment is at all times “at-will.”  This means that you may terminate your employment with or without cause or prior notice at any time, and the Company has the same right. The at-will nature of your employment may only be changed by an express written agreement signed by an authorized officer of the Company.
11.
No Prior Agreement . These provisions expressly supersede any previous representations, oral or written, made to you by the Company or any of its representatives.
12.
Applicable Law .  Any legal issues concerning the terms and conditions of your employment will be governed by and construed in accordance with the domestic laws of the State of New Jersey, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) that would defer to, or cause the application of, the substantive laws of another jurisdiction.
You should review this letter and the terms and make sure that they are consistent with your expectations and understandings. If so, please sign this letter confirming your agreement to the terms. By countersigning a copy of this letter, you acknowledge that this letter and the Company’s written policies as may be in effect from time to time contain all terms of your employment and that nothing that may have been said during any conversations with Company representatives in any way supplements, alters, or modifies these terms.

- 3 -



Once, again, all of us at the Company are excited to have you join our team.
Sincerely,
MorphoSys US Inc.


/s/ Dr. Simon Moroney
 
   
Dr. Simon Moroney
 
Chairman of the Board, MorphoSys US Inc. 
 
   
/s/ Jens Holstein
 
   
Jens Holstein
 
Treasurer, MorphoSys US Inc.
 


ACCEPTANCE OF OFFER :
I have read and understood and I accept all the terms of the offer of employment as set forth in the foregoing letter. I have not relied on any agreements or representations, express or implied, that are not set forth expressly in the foregoing letter, and this letter supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the subject matter of this letter.


 
 
/s/ James Hussey 
 
Name    
James Hussey
 
 
 
Date
9/11/2018
 

- 4 -

Exhibit 5.1

 

United States Securities and Exchange Commission
450 Fifth Street N.W.
Washington, DC 20549
United States of America


Date:  October 4, 2018
RE: Form S-8

 
Ladies and Gentlemen:

I refer to the Registration Statement on Form S-8 (the “ Registration Statement ”) of MorphoSys AG, a German stock corporation (the “ Company ”), under the Securities Act of 1933 (the “ Securities Act ”). The Registration Statement relates to up to 3,104 ordinary shares, no par value, of the Company (the “ Securities ”), issued under the Offer of Employment dated September 6, 2018, between MorphoSys US Inc. and James Hussey (the “ Agreement ”).

I have examined and am familiar with (i) the Company’s Articles of Association and (ii) the corporate procedures relating to the issuance of the Securities. Upon the basis of the foregoing, and having satisfied myself as to such other matters of law and fact as I consider relevant for the purposes of this opinion, I advise you that, in my opinion, the Securities have been legally issued, fully paid and non-assessable.

I express no opinion herein, on or with respect to, any law other than the laws of Germany, and I express no opinion on, or with respect to, the laws of the United States, any state thereof or any other laws, statutes, regulations or ordinances.

I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and any reference to me therein. In giving such consent, I do not hereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.


Very truly yours,



/s/ Jan Ischdonat
 
Jan Ischdonat
 
Senior Legal Counsel 
 
MorphoSys AG
 
   
   
   
/s/ Klaus de Wall
 
Klaus de Wall
 
Head of Accounting & Tax 
 
MorphoSys AG
 





Exhibit 23.1

 
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 14, 2018 relating to the financial statements, which appears in Morphosys AG´s prospectus dated April 16, 2018, filed pursuant to Rule 424(b) of the Securities Act, relating to the Registration Statement on Form F-1, as amended (No. 333-223843).

Munich, Germany
October 4, 2018

PricewaterhouseCoopers GmbH
Wirtschaftsprüfungsgesellschaft


/s/ Stefano Mulas
 
/s/ Holger Lutz
 
Wirtschaftsprüfer
 
Wirtschaftsprüfer
 
(German Public Auditor)
 
(German Public Auditor)