Exhibit 1.1
Fireman B.V.
[ ]
Ordinary Shares
Underwriting Agreement
[ ],
2017
J.P. Morgan Securities LLC
Leerink Partners LLC
BMO Capital Markets Corp.
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Leerink Partners LLC
299 Park Avenue, 21
st
Floor
New York, New York 10179
BMO Capital Markers Corp.
3 Times Square
New York, New York 10036
Ladies and Gentlemen:
Fireman B.V., a Dutch private company with
limited liability (
besloten vennootschap met beperkte aansprakelijkheid
) (to change its legal form into a Dutch public company
with limited liability (
naamloze vennootschap
) and its corporate name to InflaRx N.V. prior to the completion of the offering)
(the “Company”), proposes to issue and sell to the several underwriters listed in Schedule 1 hereto (the “Underwriters”),
for whom you are acting as representatives (the “Representatives”), an aggregate of [ ]
ordinary shares (the “Underwritten Shares”) with a nominal value of €0.12 per share in the capital of the Company
(the “Ordinary Shares”). In addition, the Company proposes to issue and sell, at the option of the Underwriters, up
to an additional [ ] Ordinary Shares
of the Company (the “Option Shares”). The Underwritten Shares and the Option Shares are herein referred to as the “Shares”.
The Ordinary Shares of the Company to be outstanding after giving effect to the sale of the Shares are referred to herein as the
“Stock”.
The Company hereby confirms its agreement
with the several Underwriters concerning the purchase and sale of the Shares, as follows:
1.
Registration
Statement
. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under
the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities
Act”), a registration statement (File No. 333-220962), including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or
430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”),
is referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary Prospectus”
means each prospectus included in such registration statement (and any amendments thereto) before effectiveness, any prospectus
filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement
at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in
the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection
with confirmation of sales of the Shares. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b)
under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462 Registration Statement. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined
below), the Company had prepared the following information (collectively with the pricing information set forth on Annex A, the
“Pricing Disclosure Package”): a Preliminary Prospectus dated [ ],
2017 and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex
A hereto.
“Applicable Time” means [ ]
P.M., New York City time, on [ ], 2017.
2.
Purchase
of the Shares
. (a) The Company agrees, on the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, to issue and sell the Underwritten Shares to the several Underwriters as provided in
this underwriting agreement (this “Agreement”), and each Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase
from the Company the respective number of Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1 hereto
at a price per share (the “Purchase Price”) of $[ ].
In addition, the Company agrees to issue
and sell the Option Shares to the several Underwriters as provided in this Agreement, and the Underwriters, on the basis of the
representations, warranties and agreements set forth herein and subject to the conditions set forth herein, shall have the option
to purchase, severally and not jointly, from the Company the Option Shares at the Purchase Price less an amount per share equal
to any dividends or distributions declared by the Company and payable on the Underwritten Shares but not payable on the Option
Shares. If any Option Shares are to be purchased, the number of Option Shares to be purchased by each Underwriter shall be the
number of Option Shares which bears the same ratio to the aggregate number of Option Shares being purchased as the number of Underwritten
Shares set forth opposite the name of such Underwriter in Schedule 1 hereto (or such number increased as set forth in Section 10
hereof) bears to the aggregate number of Underwritten Shares being purchased from
the Company by the several Underwriters,
subject, however, to such adjustments to eliminate any fractional Shares as the Representatives in their sole discretion shall
make.
The Underwriters may exercise the option
to purchase Option Shares at any time in whole, or from time to time in part, on or before the thirtieth day following the date
of the Prospectus, by written notice from the Representatives to the Company. Such notice shall set forth the aggregate number
of Option Shares as to which the option is being exercised and the date and time when the Option Shares are to be delivered and
paid for, which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing
Date nor later than the tenth full business day (as hereinafter defined) after the date of such notice (unless such time and date
are postponed in accordance with the provisions of Section 10 hereof). Any such notice shall be given at least two business days
prior to the date and time of delivery specified therein.
(b) The
Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this
Agreement as in the judgment of the Representatives is advisable, and initially to offer the Shares on the terms set forth in the
Pricing Disclosure Package. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately available funds to the account specified by the Company, to the Representatives
in the case of the Underwritten Shares, at the offices of Goodwin Procter LLP at 10:00 A.M., New York City time, on [ ],
2017, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives,
the Company may agree upon in writing or, in the case of the Option Shares, on the date and at the time and place specified by
the Representatives in the written notice of the Underwriters’ election to purchase such Option Shares. The time and date
of such payment for the Underwritten Shares is referred to herein as the “Closing Date” and the time and date for such
payment for the Option Shares, if other than the Closing Date, is herein referred to as the “Additional Closing Date”.
Payment for the Shares to be purchased on
the Closing Date or the Additional Closing Date, as the case may be, shall be made against delivery to the Representatives for
the respective accounts of the several Underwriters of the Shares to be purchased on such date in definitive form registered in
such names and in such denominations as the Representatives shall request in writing not later than two full business days prior
to the Closing Date or the Additional Closing Date, as the case may be, with any transfer taxes payable in connection with the
sale of such Shares duly paid by the Company. Delivery of the Shares shall be made through the facilities of The Depository Trust
Company (“DTC”) unless the Representatives shall otherwise instruct.
(d) The
Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty
to the Company with respect to the offering of Shares contemplated hereby (including in connection with determining the terms of
the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally,
neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters
and shall be responsible for making its
own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility
or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not
be on behalf of the Company.
3.
Representations
and Warranties of the Company
. The Company represents and warrants to each Underwriter that:
(a)
Preliminary
Prospectus.
No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and
each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material
respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue statement
of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
provided
that the Company makes no representation or warranty with respect to
any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus, it being understood
and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section
7(b) hereof.
(b)
Pricing
Disclosure Package
. The Pricing Disclosure Package as of the Applicable Time did not, and as of the Closing Date and as of
the Additional Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company makes no representation or warranty with respect to any statements or omissions made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 7(b) hereof. No statement of material fact
included in the Prospectus has been omitted from the Pricing Disclosure Package and no statement of material fact included in the
Pricing Disclosure Package that is required to be included in the Prospectus has been omitted therefrom.
(c)
Issuer
Free Writing Prospectus.
Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, the Company
(including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used,
authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication”
(as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Shares
(each such communication by the Company or its agents and representatives (other than a communication referred to in clause (i)
below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the
Securities Act or Rule 134 under
the Securities Act or (ii) the documents listed on Annex A hereto, each electronic road show and any other written communications
approved in writing in advance by the Representatives, which approval, in the case of written communications required by law to
be prepared, used, authorized, approved or referred to, shall not be unreasonably withheld, delayed or conditioned. Each such Issuer
Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period
specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and does not conflict with
the information contained in the Registration Statement or the Pricing Disclosure Package, and, when taken together with the Preliminary
Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not, and as of the Closing
Date and as of the Additional Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
provided
that the Company makes no representation or warranty with respect to any statements
or omissions made in each such Issuer Free Writing Prospectus or Preliminary Prospectus in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly
for use in such Issuer Free Writing Prospectus or Preliminary Prospectus, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(d)
Emerging
Growth Company
. From the time of initial confidential submission of the Registration Statement to the Commission (or, if earlier,
the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters
Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section
2(a) of the Securities Act (an “Emerging Growth Company”). “Testing-the-Waters Communication” means any
oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act.
(e)
Testing-the-Waters
Materials.
The Company (i) has not alone engaged in any Testing-the-Waters Communications other than (A) Testing-the-Waters
Communications with the consent of the Representatives with entities that are qualified institutional buyers within the meaning
of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities
Act or (B) those that have been previously disclosed to the Representatives and (ii) has not authorized anyone other than the Representatives
to engage in Testing-the-Waters Communications. The Company reconfirms that the Representatives have been authorized to act on
its behalf in undertaking Testing-the-Waters Communications by virtue of a writing substantially in the form of Exhibit A hereto.
The Company has not distributed or approved for distribution any Written Testing-the-Waters Communications other than those listed
on Annex B hereto. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a
written communication within the meaning of Rule 405 under the Securities Act. Any individual Written Testing-the-Waters Communication
does not conflict with the information contained in the Registration Statement or the
Pricing Disclosure Package, complied
in all material respects with the Securities Act, and when taken together with the Pricing Disclosure Package as of the Applicable
Time, did not, and as of the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided
that the Company makes no representation or warranty
with respect to any statements or omissions made in each such Written Testing-the-Waters Communication in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives
expressly for use in such Written Testing-the-Waters Communication, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(f)
Registration
Statement and Prospectus.
The Registration Statement has been declared effective by the Commission. No order suspending the
effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to
Section 8A of the Securities Act against the Company or related to the offering of the Shares has been initiated or, to the knowledge
of the Company, threatened by the Commission; as of the applicable effective date of the Registration Statement and any post-effective
amendment thereto, the Registration Statement and any such post-effective amendment complied and will comply in all material respects
with the Securities Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus
and any amendment or supplement thereto and as of the Closing Date and as of the Additional Closing Date, as the case may be, the
Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that the
Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto, it being understood
and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section
7(b) hereof.
(g)
Financial
Statements.
The financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries
included in the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material respects with
the applicable requirements of the Securities Act and present fairly in all material respects the financial position of the Company
and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows
for the periods specified; such financial statements have been prepared in conformity with International Financial Reporting Standards
(“IFRS”) as issued by the International Accounting Standards Board applied on a consistent basis throughout the periods
covered thereby, except in the case of the unaudited interim financial statements, which
are subject to normal, year-end
adjustments and exclude certain footnotes as permitted by the applicable rules of the Commission, and any supporting schedules
included in the Registration Statement present fairly the information required to be stated therein; and the other financial information
included in the Registration Statement, the Pricing Disclosure Package and the Prospectus has been derived from the accounting
records of the Company and its consolidated subsidiaries and presents fairly in all material respects the information shown thereby;
and the
pro forma
financial information and the related notes thereto included in the Registration Statement, the Pricing
Disclosure Package and the Prospectus have been prepared in accordance with the applicable requirements of the Securities Act and
the assumptions underlying such
pro forma
financial information are reasonable and are set forth in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(h)
No
Material Adverse Change.
Since the date of the most recent financial statements of the Company included in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, except as disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, (i) there has not been any change in the share capital (other than the issuance of Ordinary Shares
upon exercise of share options and warrants described as outstanding in, and the grant of options and awards under existing equity
incentive plans described in, the Registration Statement, the Pricing Disclosure Package and the Prospectus), short-term debt or
long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment,
paid or made by the Company on any class of share capital, or any material adverse change, or any development that would reasonably
be expected to result in a prospective material adverse change, in or affecting the business, properties, management, financial
position, shareholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement (whether or not in the ordinary
course of business) that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation,
direct or contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor
any of its subsidiaries has sustained any loss or interference with its business that is material to the Company and its subsidiaries
taken as a whole and that is either from fire, explosion, flood or other calamity, whether or not covered by insurance, or from
any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority.
(i)
Organization
and Good Standing.
The Company has been duly incorporated and is currently validly existing as a private company with limited
liability (
besloten vennootschap met beperkte aansprakelijkheid
) under the laws of the Netherlands and will, after its conversion
into a public company with limited liability (
naamloze vennootschap
) under the laws of the Netherlands, be validly existing
as a public company with limited liability (
naamloze vennootschap
) under the laws of the Netherlands. Each of the Company’s
subsidiaries have been duly organized and are validly existing and in good standing (or equivalent concept) under the laws of their
respective jurisdiction or organization. The Company and each of its subsidiaries are duly qualified to do business and are in
good standing in each jurisdiction in which their respective ownership or lease
of property or the conduct of
their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or in good standing
or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties,
management, financial position, shareholders’ equity, results of operations or prospects of the Company and its subsidiaries
taken as a whole or on the performance by the Company of its obligations under this Agreement (a “Material Adverse Effect”).
The Company does not own or control, directly or indirectly, any corporation, association or other entity.
(j)
Capitalization.
The Company has, and upon completion of the corporate reorganization described under the caption “Corporate reorganization”
in the Registration Statement, the Pricing Disclosure Package and the Prospectus (the “Corporate Reorganization”) will
have, an authorized capitalization as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus
under the heading “Capitalization”; all the outstanding share capital of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable and are not subject to any pre-emptive or similar rights that have not been duly
waived or satisfied or validly excluded; except as described in or expressly contemplated by the Pricing Disclosure Package and
the Prospectus, there are no outstanding rights (including, without limitation, pre-emptive rights), warrants or options to acquire,
or instruments convertible into or exchangeable for, any share capital or other equity interest in the Company or any of its subsidiaries,
or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any share capital
of the Company or any such subsidiary, any such convertible or exchangeable securities or any such rights, warrants or options;
the share capital of the Company conforms in all material respects to the description thereof contained in the Registration Statement,
the Pricing Disclosure Package and the Prospectus; and all the outstanding share capital or other equity interests of each subsidiary
owned, directly or indirectly, by the Company have been duly and validly authorized and issued, are fully paid and non-assessable
(except, in the case of any foreign subsidiary, for directors’ qualifying shares and except as otherwise described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus,) and are owned directly or indirectly by the Company,
free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other similar claim
of any third party.
(k)
Share
Options.
With respect to the share options (the “Share Options”) granted pursuant to the stock-based compensation
plans of the Company and its subsidiaries (the “Company Share Plans”), (i) each grant of a Share Option was duly authorized
no later than the date on which the grant of such Share Option was by its terms to be effective (the “Grant Date”)
by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted
and authorized committee thereof) and any required shareholder approval by the necessary number of votes or written consents, and,
to the knowledge of the Company (other than with respect to the execution and delivery by the Company), the award agreement governing
such grant (if any) was duly executed and delivered by each party thereto, (ii) each such grant was made in accordance with the
terms of the Company Share Plans and all other
applicable laws and regulatory
rules or requirements, and (iii) each such grant was properly accounted for in accordance with IFRS in the financial statements
(including the related notes) of the Company included in the Registration Statement, Pricing Disclosure Package and Prospectus.
(l)
Due
Authorization.
The Company has full right, power and authority to execute and deliver this Agreement and to perform its obligations
hereunder; and all action required to be taken for the due and proper authorization, execution and delivery by it of this Agreement
and the consummation by it of the transactions contemplated hereby has been duly and validly taken.
(m)
Underwriting
Agreement.
This Agreement has been duly authorized, executed and delivered by the Company.
(n)
The
Shares.
The Shares to be issued and sold by the Company hereunder have been duly authorized by the Company and, when issued
and delivered and paid for as provided herein, will be duly and validly issued, will be fully paid and nonassessable and will conform
in all material respects to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the Prospectus;
and the issuance of the Shares is not subject to any preemptive or similar rights that have not been irrevocably waived or validly
excluded.
(o)
Descriptions
of the Underwriting Agreement.
This Agreement conforms in all material respects to the description thereof contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(p)
No
Violation or Default.
Neither the Company nor any of its subsidiaries is (i) in violation of its articles of association
or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which any property or asset of the Company or any of its subsidiaries
is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority having jurisdiction over the Company or any of its subsidiaries, except, in the case of clauses
(ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(q)
No
Conflicts.
The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares and
the consummation of the transactions contemplated by this Agreement or the Pricing Disclosure Package and the Prospectus (including
the changing of the legal form of the Company from a Dutch private company with limited liability (
besloten vennootschap met
beperkte aansprakelijkheid
) into a Dutch public company with limited liability (
naamloze vennootschap
) prior to the
completion of the offering) will not (i) conflict with or result in a breach or
violation of any of the terms
or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in the creation
or imposition of any lien, charge or encumbrance upon any property, right or asset of the Company or any of its subsidiaries pursuant
to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any property, right or assets of
the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the articles of association
or similar organizational documents of the Company or any of its subsidiaries or (iii) result in the violation of any law or statute
or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority to which the Company
or any of its subsidiaries is subject, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation,
default, lien, charge or encumbrance that would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(r)
No
Consents Required.
No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator
or governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement,
the issuance and sale of the Shares and the consummation of the transactions contemplated by this Agreement, except for the registration
of the Shares under the Securities Act and such consents, approvals, authorizations, orders and registrations or qualifications
as have already been made or obtained or as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”),
the NASDAQ Global or Global Select Market (the “Exchange”), under applicable state securities laws in connection with
the purchase and distribution of the Shares by the Underwriters and, prior to the Closing Date, any court order or regulatory filing
or submission required in connection with the Corporate Reorganization.
(s)
Legal
Proceedings.
Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are
no legal, governmental or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (“Actions”)
pending to which the Company or any of its subsidiaries is or, to the knowledge of the Company, would reasonably be expected to
be a party or to which any property of the Company or any of its subsidiaries is or, to the knowledge of the Company, would reasonably
be expected to be the subject that, individually or in the aggregate, if determined adversely to the Company or any of its subsidiaries,
would reasonably be expected to have a Material Adverse Effect; to the knowledge of the Company, no such Actions are threatened
or contemplated by any governmental or regulatory authority or threatened by others; and (i) there are no current or pending Actions
that are required under the Securities Act to be described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and (ii)
there are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits
to the Registration Statement or described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that
are not so filed as exhibits to the
Registration Statement or described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(t)
Independent
Accountants
. KPMG AG Wirtschaftsprüfungsgesellschaft, who have audited certain financial statements of the Company and
its subsidiaries is an independent registered public accounting firm with respect to the Company and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and
as required by the Securities Act.
(u)
Title
to Real and Personal Property.
The Company and its subsidiaries have good and marketable title in fee simple (
Eigentum
)
to, or have valid rights to lease or otherwise use, all items of real and personal property that are material to the respective
businesses of the Company and its subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances, claims
and defects and imperfections of title except those that (i) do not materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries or (ii) could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect.
(v)
Intellectual
Property.
Except as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect,
(i) the Company and its subsidiaries own or have the right to use all patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service mark registrations, domain names and other source indicators, copyrights and copyrightable
works, know-how, trade secrets, systems, procedures, proprietary or confidential information and all other worldwide intellectual
property, industrial property and proprietary rights (collectively, “Intellectual Property”) necessary for the conduct
of their respective businesses; (ii) to the knowledge of the Company, the Company and its subsidiaries’ conduct of their
respective businesses does not infringe, misappropriate or otherwise violate any Intellectual Property of any person; (iii) the
Company and its subsidiaries have not received any written notice of any claim by any third party (A) challenging the validity,
enforceability or scope of any Intellectual Property owned or controlled by the Company or its subsidiaries or challenging the
rights of the Company or its subsidiaries in such Intellectual Property or (B) alleging that the Company infringes, misappropriates
or otherwise violates any Intellectual Property of such third party; and (iv) to the knowledge of the Company, the Intellectual
Property owned or controlled (including pursuant to an exclusive license) by the Company and their subsidiaries is not being infringed,
misappropriated or otherwise violated by any person.
(w)
No
Undisclosed Relationships.
No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries,
on the one hand, and the directors, officers, shareholders, customers, suppliers or other affiliates of the Company or any of its
subsidiaries, on the other, that is required by the Securities Act to be described in each of the Registration Statement and the
Prospectus and that is not so described in such documents and in the Pricing Disclosure Package.
(x)
Investment
Company Act.
The Company is not and, after giving effect to the offering and sale of the Shares and the application of the
proceeds thereof as
described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, will not be required to register as an “investment company”
or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company Act”).
(y)
Taxes.
Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company
and its subsidiaries have filed all income and other material tax returns required to be filed through the date hereof and have
paid all taxes required to be paid in respect thereof, except with respect to matters being contested in good faith or for which
adequate reserves are reflected, in accordance with IFRS, in the financial statements of the Company or its subsidiaries; and (ii) except
as otherwise disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, there is no income
or other material tax deficiency that has been, or could reasonably be expected to be, asserted against the Company or any of its
subsidiaries or any of their respective properties or assets.
(z)
Licenses
and Permits.
The Company and its subsidiaries possess all licenses, sub-licenses, certificates, permits and other authorizations
issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses
as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, except where the failure
to possess or make the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
and except as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company
nor any of its subsidiaries has received notice of any revocation or modification of any such license, sub-license, certificate,
permit or authorization or has any reason to believe that any such license, sub-license, certificate, permit or authorization will
not be renewed in the ordinary course, except where such revocation, modification or non-renewal would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. To the extent required by applicable laws and regulations
of the FDA, the Company has submitted to the United States Food and Drug Administration (the “FDA”) an Investigational
New Drug Application or amendment or supplement thereto for each clinical trial it has conducted or sponsored or is conducting
or sponsoring; all such submissions, if any, were in material compliance with applicable laws and rules and regulations when submitted
and no material deficiencies have been asserted by the FDA with respect to any such submissions. To the extent required by applicable
laws and regulations of the European Medicines Agency (the “EMA”), the Company has submitted to the EMA a Clinical
Trial Authorization or amendment or supplement thereto for each clinical trial it has conducted or sponsored or is conducting or
sponsoring; all such submissions, if any, were in material compliance with applicable laws and rules and regulations when submitted
and no material deficiencies have been asserted by the EMA with respect to any such submissions.
(aa)
No Labor Disputes.
No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is
contemplated or threatened, and
the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers, in each case, except as would not have a Material Adverse Effect.
Neither the Company nor any of its subsidiaries is or at any time has been a party to any collective bargaining agreement or other
labor agreement with respect to employees of the Company or its subsidiaries.
(bb)
Certain Environmental
Matters
. (i) The Company and its subsidiaries (x) are in compliance with any and all applicable federal, state, local and foreign
laws, rules, regulations, requirements, decisions, judgments, decrees, orders and other legally enforceable requirements relating
to pollution or the protection of human health or safety, the environment, natural resources, hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, “Environmental Laws”); (y) have received and are in compliance with
all permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to
conduct their respective businesses; and (z) have not received notice of any actual or potential liability under or relating to,
or any actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any disposal
or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or condition
that would reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities associated with Environmental
Laws of or relating to the Company or its subsidiaries, except in the case of each of (i) and (ii) above, for any such matter as
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described
in each of the Pricing Disclosure Package and the Prospectus, (x) there is no proceeding that is pending, or that is known to the
Company to be contemplated, against the Company or any of its subsidiaries under any Environmental Laws in which a governmental
entity is also a party, other than such proceeding regarding which it is reasonably believed no monetary sanctions of $100,000
or more will be imposed, (y) the Company and its subsidiaries are not aware of any facts or issues regarding compliance with Environmental
Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants
or contaminants, that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive
position of the Company and its subsidiaries, and (z) none of the Company or its subsidiaries anticipates material capital expenditures
relating to any Environmental Laws.
(cc)
Compliance with ERISA
.
The Company does not maintain any “employee benefit plan” subject to Title IV of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), or the regulations and published interpretations thereunder.
(dd)
Disclosure Controls
.
The Company and its subsidiaries, on a consolidated basis, have established a system of “disclosure controls and procedures”
(as defined in Rule 13a-15(e) of the Exchange Act) that is designed to comply with the requirements of the Exchange Act applicable
to the Company and its subsidiaries and to ensure that information required to be disclosed by the Company in reports that it files
or submits under the Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the Commission’s
rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to
the Company’s management as appropriate to allow timely decisions regarding required disclosure.
(ee)
Accounting Controls.
The Company and its subsidiaries, on a consolidated basis, have established systems of “internal control over financial reporting”
(as defined in Rule 13a-15(f) of the Exchange Act) that are designed to comply with the requirements of the Exchange Act by, or
under the supervision of, their respective principal executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with IFRS. The Company and its subsidiaries maintain internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain
asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, no material weaknesses in the Company’s internal controls have been identified. The Company’s auditors
and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material
weaknesses in the design or operation of internal controls over financial reporting which have adversely affected or are reasonably
likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and (ii)
any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s
internal controls over financial reporting.
(ff)
Insurance.
The
Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, which insurance
is in amounts and insures against such losses and risks as the Company reasonably believes are adequate to protect the Company
and its subsidiaries and their respective businesses; and neither the Company nor any of its subsidiaries has (i) received notice
from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made
in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to
continue its business in all material respects.
(gg)
No Unlawful Payments.
Neither the Company nor any of its subsidiaries, nor, any director, officer or employee of the Company or any of its subsidiaries
nor, to the knowledge of the Company, any agent, affiliate or other person associated with or acting on behalf of the Company or
any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or
indirect unlawful payment or benefit to any foreign or
domestic government official or
employee, including of any government-owned or controlled entity or of a public international organization, or any person acting
in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political
office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable
law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,
or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption
law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including,
without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company
and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce policies and procedures designed
to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(hh)
Compliance with Anti-Money
Laundering Laws
. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries
conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries
with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ii)
No
Conflicts with Sanctions Laws.
Neither the Company nor any of its subsidiaries, directors, officers or employees, nor, to the
knowledge of the Company, any agent, affiliate or other person associated with or acting on behalf of the Company or any of its
subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. government (including,
without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S.
Department of State and including, without limitation, the designation as a “specially designated national” or “blocked
person”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”)
or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located,
organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, Cuba,
Iran, North Korea, Sudan, Syria and Crimea (each, a “Sanctioned Country”); and the Company will not directly or indirectly
use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person
that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities
of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including
any person participating in the transaction, whether as
underwriter, advisor, investor
or otherwise) of Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged in and are not
now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was
the subject or the target of Sanctions or with any Sanctioned Country.
(jj)
No Restrictions on
Subsidiaries
. No subsidiary of the Company is currently prohibited (except as may be limited by applicable laws of the jurisdictions
of such subsidiary’s incorporation or formation and as set forth in the Registration Statement, the Pricing Disclosure Package
and the Prospectus), directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s share capital or similar ownership
interest, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such
subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(kk)
No Broker’s Fees.
Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against any of them or any Underwriter for a brokerage commission, finder’s
fee or like payment in connection with the offering and sale of the Shares.
(ll)
No Registration Rights
.
Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no person has the right to
require the Company or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing
of the Registration Statement with the Commission or the issuance and sale of the Shares described in this Agreement.
(mm)
No Stabilization.
The Company has not taken, directly or indirectly (without giving any effect to the activities by the Underwriters), any action
designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
(nn)
Margin Rules
. Neither
the issuance, sale and delivery of the Shares nor the application of the proceeds thereof by the Company as described in each of
the Registration Statement, the Pricing Disclosure Package and the Prospectus will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(oo)
Forward-Looking
Statements.
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) included in any of the Registration Statement, the Pricing Disclosure Package or the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good faith.
(pp)
Statistical and Market
Data.
Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market-related
data included in each of the Registration
Statement, the Pricing Disclosure Package and the Prospectus is not based on or derived from sources that are reliable and accurate
in all material respects.
(qq)
Sarbanes-Oxley Act
.
There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities
as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations promulgated in
connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans.
(rr)
Status under the Securities
Act
. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter
that the Company or any offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) under the Securities
Act) of the Shares and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule
405 under the Securities Act.
(ss)
No
Ratings
. There are (and prior to the Closing Date, will be) no debt securities or preferred shares issued or guaranteed by
the Company or any of its subsidiaries that are rated by a “nationally recognized statistical rating organization,”
as such term is defined under Section 3(a)(62) under the Exchange Act.
(tt)
Stamp Taxes
. Except for any net income, capital gains or franchise taxes imposed on the Underwriters by the governments
of the Netherlands, the United States, Germany or any political subdivision or taxing authority thereof or therein as a
result of any present or former connection (other than any connection resulting from the transactions contemplated by this
Agreement) between the Underwriters and the jurisdiction imposing such tax, no stamp duties or other issuance or transfer
taxes are payable by or on behalf of the Underwriters in the Netherlands, the United States, Germany or any political
subdivision or taxing authority thereof solely in connection with (A) the execution, delivery and performance of this
Agreement, (B) the issuance and delivery of the Shares in the manner contemplated by this Agreement, the Pricing Disclosure
Package and the Prospectus or (C) the sale and delivery by the Underwriters of the Shares as contemplated herein and in the
Pricing Disclosure Package and the Prospectus, assuming that the Underwriters will not waive any value-added tax
exemption.
(uu)
No Immunity
. Neither
the Company nor any of its subsidiaries or their properties or assets has immunity under Dutch, German, U.S. federal or New York
state law from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding,
from set-off or counterclaim, from the jurisdiction of any Dutch, German, U.S. federal or New York state court, from service of
process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from execution of a judgment,
or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court with
respect to their respective obligations, liabilities or any other matter under or arising out of or in connection herewith; and,
to the extent that the Company or any of its subsidiaries or any of its properties, assets or revenues may have or may hereafter
become entitled to any such right of
immunity in any such court in
which proceedings arising out of, or relating to the transactions contemplated by this Agreement, may at any time be commenced,
the Company has, pursuant to Section 16(d) of this Agreement, waived, and it will waive, or will cause its subsidiaries to waive,
such right to the extent permitted by law.
(vv)
Valid Choice of Law
.
The choice of laws of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of the
Netherlands and subject to the provisions of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June
2008 relating to the law applicable to contractual obligations (Rome I), will be honored by the courts of the Netherlands, except
in case performance of the contract is unlawful in the Netherlands or manifest incompatibility with the public policy ‘
ordre
public
’ of the Netherlands. The Company has the power to submit, and pursuant to Section 16(e) of this Agreement, has
legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each New York state and United States
federal court sitting in the City of New York and has validly and irrevocably waived any objection to the laying of venue of any
suit, action or proceeding brought in such court.
(ww)
Passive Foreign Investment
Company
. Subject to the qualifications, limitations, exceptions and assumptions set forth in the Preliminary Prospectus and
the Prospectus, the Company does not expect to be a passive foreign investment company (a “PFIC”), as defined in section
1297 of the Internal Revenue Code of 1986, as amended for its 2017 taxable year.
(xx)
Legality
.
The legality, validity, enforceability or admissibility into evidence of any of the Registration Statement, the Pricing Disclosure
Package, the Prospectus, this Agreement or the Shares in any jurisdiction in which the Company is organized or does business is
not dependent upon such document being submitted into, filed or recorded with any court or other authority in any such jurisdiction
(other than court filings in the ordinary course of proceedings) on or before the date hereof or that any tax, imposition or charge
(other than court fees or similar documentary tax payable in the ordinary course of proceedings) be paid in any such jurisdiction
on or in respect of any such document.
(yy)
Legal Action
. A
holder of the Shares and each Underwriter are each entitled to sue as plaintiff in the court of the jurisdiction of formation and
domicile of the Company for the enforcement of their respective rights under this Agreement and the Shares and such access to such
courts will not be subject to any conditions which are not applicable to residents of such jurisdiction or a company incorporated
in such jurisdiction except that plaintiffs not residing in the Netherlands may be required to guarantee payment of a possible
order for payment of costs or damages at the request of the defendant.
(zz)
Foreign Issuer
.
The Company is a “foreign private issuer” as defined in Rule 405 under the Securities Act.
(aaa)
Preclinical and Clinical
Data and Regulatory Compliance
. The preclinical tests and clinical trials conducted by or on behalf of the Company and its
subsidiaries that
are described in, or the results
of which are referred to in, the Registration Statement, the Pricing Disclosure Package or the Prospectus (collectively, “Studies”)
were and, if still pending, are being conducted in all material respects in accordance with the protocols, procedures and controls
designed and approved for such Studies and with standard medical and scientific research procedures; each description of the results
of such Studies is accurate and complete in all material respects and fairly presents the data derived from such Studies; and the
Company has no knowledge of any other Studies the results of which are inconsistent with, or otherwise call into question, the
results described or referred to in the Registration Statement, the Pricing Disclosure Package or the Prospectus. Except as described
in the Registration Statement, the Pricing Disclosure Package and the Prospectus or as otherwise disclosed to the Underwriters,
the Company has not received any written notice of, or correspondence from, any Governmental Authority requiring the termination,
suspension or material modification of any Studies. The Company has operated and currently is in compliance in all material respects
with the United States Federal Food, Drug, and Cosmetic Act, all applicable rules and regulations of the FDA, the EMA and other
federal, state, local and foreign governmental bodies exercising comparable authority.
4.
Further
Agreements of the Company
. The Company covenants and agrees with each Underwriter that:
(a)
Required
Filings.
The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and
Rule 430A under the Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule 433 under the Securities
Act; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously
delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the
date of this Agreement in such quantities as the Representatives may reasonably request.
(b)
Delivery
of Copies.
The Company will deliver, upon written request of the Representatives and without charge, (i) to the Representatives,
conformed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits
and consents filed therewith; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed
and each amendment thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below), as many copies
of the Prospectus (including all amendments and supplements thereto and each Issuer Free Writing Prospectus) as the Representatives
may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first
date of the public offering of the Shares as in the opinion of counsel for the Underwriters a prospectus relating to the Shares
is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales
of the Shares by any Underwriter or dealer.
(c)
Amendments
or Supplements, Issuer Free Writing Prospectuses.
Before preparing, using, authorizing, approving, referring to or filing any
Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement
or the Prospectus, the Company
will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment
or supplement for review and will not prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus
or file any such proposed amendment or supplement to which the Representatives reasonably objects in a timely manner.
(d)
Notice
to the Representatives.
The Company will advise the Representatives promptly, and confirm such advice in writing (which may
be by electronic mail), (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement
has been filed or becomes effective; (iii) when any supplement to the Prospectus , any Issuer Free Writing Prospectus or any Written
Testing-the-Waters Communication or any amendment to the Prospectus has been filed or distributed; (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments
from the Commission relating to the Registration Statement or any other request by the Commission for any additional information
including, but not limited to, any request for information concerning any Testing-the-Waters Communication; (v) of the issuance
by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of
any Preliminary Prospectus, any of the Pricing Disclosure Package, the Prospectus or any Written Testing-the-Waters Communication
or the initiation or, to the knowledge of the Company, threatening of any proceeding for that purpose or pursuant to Section 8A
of the Securities Act; (vi) of the occurrence of any event or development within the Prospectus Delivery Period as a result of
which the Prospectus, any of the Pricing Disclosure Package, any Issuer Free Writing Prospectus or any Written Testing-the-Waters
Communication as then amended or supplemented would include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Pricing
Disclosure Package, any such Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication is delivered to a purchaser,
not misleading; (vii) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (viii) of the receipt
by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction,
or the initiation or, to the knowledge of the Company, threatening of any proceeding for such purpose; and the Company will use
its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package or the Prospectus or any
Written Testing-the-Waters Communication or suspending any such qualification of the Shares and, if any such order is issued, will
use reasonable efforts to obtain as soon as possible the withdrawal thereof.
(e)
Ongoing
Compliance.
(1) If during the Prospectus Delivery Period (i) any event or development shall occur or condition shall exist
as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser,
not misleading or (ii) it is necessary
to amend or supplement the Prospectus to comply with law, the Company will promptly notify the Underwriters thereof and forthwith
prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the
Representatives may designate such amendments or supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i)
any event or development shall occur or condition shall exist as a result of which the Pricing Disclosure Package as then amended
or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances existing when the Pricing Disclosure Package is delivered to a purchaser,
not misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company will
promptly notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to
the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments
or supplements to the Pricing Disclosure Package as may be necessary so that the statements in the Pricing Disclosure Package as
so amended or supplemented will not, in the light of the circumstances existing when the Pricing Disclosure Package is delivered
to a purchaser, be misleading or so that the Pricing Disclosure Package will comply with law.
(f)
Blue
Sky Compliance.
The Company will qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution
of the Shares;
provided
that the Company shall not be required to (i) qualify as a foreign corporation or other entity or
as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(g)
Earning
Statement.
The Company will make generally available to its security holders and the Representatives as soon as practicable
an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the
“effective date” (as defined in Rule 158) of the Registration Statement.
(h)
Clear
Market.
For a period of 180 days after the date of the Prospectus, the Company will not (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement under the Securities
Act relating to, any shares of Stock or any securities convertible into or exercisable or exchangeable for Stock, or publicly disclose
the intention to make any offer, sale, pledge, disposition or filing, or (ii) enter into any swap or other agreement that transfers,
in whole or in part, any of the economic consequences of ownership of the Stock or any such other securities, whether any such
transaction described in clause
(i) or (ii) above is to be settled by delivery of Stock or such other securities, in cash or otherwise, without the prior written
consent of the Representatives, other than (A) the Shares to be sold hereunder, (B) any Ordinary Shares granted or issued upon
the exercise of options granted under Company Share Plans,
provided
that the Company shall cause the recipient of such shares
issued pursuant to this clause (B) during the 180-day restricted period described above to enter into an agreement substantially
in the form of Exhibit D hereto, (C) any options and other awards granted under a Company Share Plan described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus,
provided
that the Company shall cause the recipient of such
options or awards issued pursuant to this clause (C) during the 180-day restricted period described above to enter into an agreement
substantially in the form of Exhibit D hereto, (D) the filing by the Company of any registration statement on Form S-8 or a successor
form thereto relating to a Company Share Plan described in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
(E) Ordinary Shares or other securities of the Company issued in connection with a transaction with an unaffiliated third party
that includes a bona fide commercial relationship (including joint ventures, marketing or distribution arrangements, collaboration
agreements or intellectual property license agreements) or any acquisition of assets or equity of another entity (whether by merger,
consolidation, acquisition of equity interests or otherwise),
provided
that (x) the aggregate number of shares issued pursuant
to this clause (E) shall not exceed five percent (5%) of the total number of outstanding Ordinary Shares immediately following
the issuance and sale of the Underwritten Shares pursuant hereto and (y) the recipient of any such Ordinary Shares or securities
issued pursuant to this clause (E) during the 180-day restricted period described above shall enter into an agreement substantially
in the form of Exhibit D hereto and (E) the issuance of any securities pursuant to the Corporate Reorganization.
If the Representatives, in their
sole discretion, agree to release or waive the restrictions set forth in a lock-up letter described in Section 6(o) hereof for
an officer or director of the Company and provide the Company with notice of the impending release or waiver substantially in the
form of Exhibit B hereto at least three business days before the effective date of the release or waiver, the Company agrees to
announce the impending release or waiver by a press release substantially in the form of Exhibit C hereto through a major news
service at least two business days before the effective date of the release or waiver.
(i)
Use
of Proceeds.
The Company will apply the net proceeds from the sale of the Shares as described in each of the Registration Statement,
the Pricing Disclosure Package and the Prospectus under the heading “Use of proceeds”.
(j)
No
Stabilization.
The Company will not take, directly or indirectly, without giving effect to activities by the Underwriters,
any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price
of the Ordinary Shares.
(k)
Exchange
Listing.
The Company will use its reasonable best efforts to list, subject to notice of issuance, the Ordinary Shares, including
the Shares on the Exchange.
(l)
Reports.
For a period of one year from the date of this Agreement, so long as the Shares are outstanding, the Company will furnish to the
Representatives, as soon as they are available, copies of all reports or other communications (financial or other) furnished to
holders of the Shares, and copies of any reports and financial statements furnished to or filed with the Commission or any national
securities exchange or automatic quotation system;
provided
the Company will be deemed to have furnished such reports and
financial statements to the Representatives to the extent they are filed on the Commission’s Electronic Data Gathering, Analysis,
and Retrieval system.
(m)
Record
Retention
. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing
Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(n)
Filings.
The Company will file with the Commission such reports as may be required by Rule 463 under the Securities Act.
(p)
Emerging
Growth Company; Foreign Private Issuer
. The Company will promptly notify the Representatives if the Company ceases to be an
Emerging Growth Company or a Foreign Private Issuer at any time prior to the later of (i) completion of the distribution of Shares
within the meaning of the Securities Act and (ii) completion of the 180-day restricted period referred to in Section 4(h) hereof.
(q)
Tax
Indemnity
. The Company will indemnify and hold harmless the Underwriters against any documentary, stamp, registration or similar
issuance tax, including any interest and penalties, on the sale of the Shares by the Company to the Underwriters and on the execution
and delivery of this Agreement. All indemnity payments to be made by the Company hereunder in respect of this Section 4(q) shall
be made without withholding or deduction for or on account of any present or future Dutch or German taxes, duties or governmental
charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, and
except for any net income, capital gains or franchise taxes imposed on the Underwriters by the Netherlands, Germany or the United
States or any political subdivision of taxing authority thereof or therein as a result of any present or former connection (other
than any connection resulting from the transactions contemplated by this Agreement) between the Underwriters and the jurisdiction
imposing such withholding or deductions, the Company shall pay such additional amounts as may be necessary in order to ensure that
the net amounts received after such withholding or deductions shall equal the amounts that would have been received if no withholding
or deduction has been made.
5.
Certain
Agreements of the Underwriters
. Each Underwriter hereby represents and agrees that:
(a) It
has not used, authorized use of, referred to or participated in the planning for the use of, and will not use, authorize use of,
refer to or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405 under the
Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated
by reference into the Registration Statement and any
press release issued by the Company)
other than (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under
the Securities Act) that was not included (including through incorporation by reference) in the Preliminary Prospectus or a previously
filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section
3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such underwriter
and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter
Free Writing Prospectus”).
(b) It
has not and will not, without the prior written consent of the Company, use any free writing prospectus that contains the final
terms of the offering of the Shares unless such terms have previously been included in a free writing prospectus filed with the
Commission.
(c) It
is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly
notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
6.
Conditions
of Underwriters’ Obligations.
The obligation of each Underwriter to purchase the Underwritten Shares on the Closing Date
or the Option Shares on the Additional Closing Date, as the case may be, as provided herein is subject to the performance by the
Company of their respective covenants and other obligations hereunder and to the following additional conditions:
(a)
Registration
Compliance; No Stop Order.
No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding
for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or, to the knowledge of the Company,
threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission
under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities
Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Representatives.
(b)
Representations
and Warranties.
The representations and warranties of the Company contained herein shall be true and correct on the date hereof
and on and as of the Closing Date or the Additional Closing Date, as the case may be; and the statements of the Company and its
officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date
or the Additional Closing Date, as the case may be.
(c)
No
Material Adverse Change.
No event or condition of a type described in Section 3(h) hereof shall have occurred or shall exist,
which event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and
the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing Date or the
Additional Closing Date, as the
case may be, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(d)
Officer’s
Certificate.
The Representatives shall have received on and as of the Closing Date or the Additional Closing Date, as the case
may be, (x) a certificate on behalf of the Company of the chief financial officer of the Company and one additional senior executive
officer of the Company who is satisfactory to the Representatives (i) confirming that such officers have carefully reviewed the
Registration Statement, the Pricing Disclosure Package and the Prospectus and, to the knowledge of such officers, the representations
set forth in Sections 3(b) and 3(c) hereof are true and correct, (ii) confirming that the other representations and warranties
of the Company in this Agreement are true and correct and that the Company has complied, in all material respects, with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or the Additional
Closing Date, as the case may be, and (iii) to the effect set forth in paragraphs (a) and (c) above.
(e)
Comfort
Letters.
(i) On the date of this Agreement and on the Closing Date or the Additional Closing Date, as the case may be, KPMG
AG Wirtschaftsprüfungsgesellschaft shall have furnished to the Representatives, at the request of the Company, letters, dated
the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters”
to underwriters with respect to the financial statements and certain financial information contained in each of the Registration
Statement, the Pricing Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date or the Additional
Closing Date, as the case may be, shall use a “cut-off” date no more than three business days prior to such Closing
Date or such Additional Closing Date, as the case may be.
(f)
Opinion
and 10b-5 Statement of Counsel for the Company.
Davis Polk & Wardwell LLP counsel for the Company, shall have furnished
to the Representatives, at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date or the
Additional Closing Date, as the case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Annex D-1 hereto.
(g)
Opinion
of Foreign Counsel for the Company
. NautaDutilh N.V., Dutch counsel for the Company, shall have furnished to the Representatives,
at the request of the Company, their written opinion, dated the Closing Date or the Additional Closing Date, as the case may be,
and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth
on Annex D-2 hereto. Taylor Wessing Partnerschaftsgesellschaft mbB, German counsel for the Company, shall have furnished to the
Representatives, at the request of the Company, their written opinion, dated the Closing Date or the Additional Closing Date, as
the case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the
effect set forth on Annex D-3 hereto.
(h) Zwicker
Schnappauf & Partner Patentanwälte, intellectual property counsel for the Company, shall have furnished to the Representatives,
at the request of the Company, their written opinion, dated the Closing Date or the Additional Closing Date, as the case may be,
and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives and previously agreed upon
with the Representatives.
(i) [Reserved]
(j)
Opinion
and 10b-5 Statement of Counsel for the Underwriters.
The Representatives shall have received on and as of the Closing Date
or the Additional Closing Date, as the case may be, an opinion and 10b-5 statement addressed to the Underwriters of Goodwin Procter
LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel
shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(k) The
Representatives shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, an opinion
of Loyens & Loeff N.V., Dutch counsel for the Underwriters, with respect to such matters as the Representatives may reasonably
request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass
upon such matters.
(l)
No
Legal Impediment to Issuance and/or Sale.
No action shall have been taken and no statute, rule, regulation or order shall have
been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing
Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares; and no injunction or order
of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Additional Closing Date,
as the case may be, prevent the issuance or sale of the Shares.
(m)
Good
Standing
. The Representatives shall have received on and as of the Closing Date or the Additional Closing Date, as the case
may be, satisfactory evidence of the good standing (to the extent that the concept of good standing is applicable in such jurisdiction)
of the Company and its subsidiaries in their respective jurisdictions of organization and their good standing (to the extent that
the concept of good standing is applicable in such jurisdiction)in such other jurisdictions as the Representatives may reasonably
request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such
jurisdictions, if available.
(n)
Exchange
Listing.
The Shares to be delivered on the Closing Date or the Additional Closing Date, as the case may be, shall have been
approved for listing on the Exchange, subject to official notice of issuance.
(o)
Lock-up
Agreements
. The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and shareholders
holding in the aggregate 100% of the outstanding share capital of the Company, all other holders of equity in the Company (including
optionholders), and all officers and directors of the Company relating to
sales and certain other dispositions
of shares of Stock or certain other securities, delivered to you on or before the date hereof, shall be full force and effect on
the Closing Date or the Additional Closing Date, as the case may be.
(p)
Conversion
of the Company
. Prior to the Closing Date, the Company will convert into a public company with limited liability under Dutch
law (
naamloze vennootschap
) and amend its articles of association by execution of a notarial deed substantially in the form
as the Deed of Conversion and Amendment of Articles of Association, as referred to in and filed as an exhibit to the Registration
Statement, and the Company will provide the Representatives with an executed copy of such deed.
(q)
Additional
Documents.
On or prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall have furnished
to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and
evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if
they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7.
Indemnification
and Contribution
.
(a)
Indemnification
of the Underwriters.
The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers
and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable
legal fees and other reasonable expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any
untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto),
any Issuer Free Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d)
under the Securities Act, any Written Testing-the-Waters Communication, any road show as defined in Rule 433(h) under the Securities
Act (a “road show”) or any Pricing Disclosure Package, or caused by any omission or alleged omission to state therein
a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not
misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating
to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein,
it being understood and agreed that the only such information furnished by any Underwriter consists of the information described
as such in subsection (b) below.
(b)
Indemnification
of the Company.
Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors,
its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above,
but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, any Written Testing-the-Waters
Communication, any road show or any Pricing Disclosure Package, it being understood and agreed upon that the only such information
furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the third paragraph under the caption “Underwriting” and pargraphs
twelve, thirteen and fourteen under the caption “Underwriting.”
(c)
Notice
and Procedures.
If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or
(b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification
may be sought (the “Indemnifying Person”) in writing;
provided
that the failure to notify the Indemnifying Person
shall not relieve it from any liability that it may have under the paragraph (a) and (b) above except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and
provided further
that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person
otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person
and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory
to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person)
to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section that the Indemnifying Person
may designate in such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person
shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may
be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv)
the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are
incurred. Any such separate firm for any Underwriter, its
affiliates, directors and officers and any control persons of
such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Company, its directors,
its officers who signed the Registration Statement and any control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify
each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person
for reasonable fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent
of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement
(x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to
or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d)
Contribution.
If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph,
in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters on the other, from the offering of the Shares or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) but also the relative fault of the Company, on the one hand, and the Underwriters
on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters
on the other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received
by the Company from the sale of the Shares and the total underwriting discounts and commissions received by the Underwriters in
connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price
of the Shares. The relative fault of the Company, on the one hand, and the Underwriters on the other, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e)
Limitation
on Liability.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to paragraph
(d) above were determined by
pro rata
allocation (even if the Underwriters were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth above, any reasonable legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of paragraphs (d) and (e),
in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts
and commissions received by such Underwriter with respect to the offering of the Shares exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations
to contribute pursuant to paragraphs (d) and (e) are several in proportion to their respective purchase obligations hereunder and
not joint.
(f)
Non-Exclusive
Remedies.
The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
8.
Effectiveness
of Agreement
. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto as of the
date first written above.
9.
Termination
.
This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if after the execution
and delivery of this Agreement and on or prior to the Closing Date or, in the case of the Option Shares, prior to the Additional
Closing Date (i) trading generally shall have been suspended or materially limited on or by any of the New York Stock Exchange
or The Nasdaq Stock Market; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared
by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change
in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives,
is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares
on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement,
the Pricing Disclosure Package and the Prospectus.
10.
Defaulting
Underwriter
.
(a) If,
on the Closing Date or the Additional Closing Date, as the case may be, any Underwriter defaults on its obligation to purchase
the Shares that it has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their discretion arrange
for the purchase of such Shares by other persons satisfactory to the Company on the terms contained in this Agreement. If, within
36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of 36 hours within which to procure other persons reasonably satisfactory
to the non-defaulting Underwriters to purchase such Shares on such terms. If other persons become obligated or agree to purchase
the Shares of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date or
the Additional Closing Date, as the case may be, for up to five full business days in order to effect any changes that in the opinion
of counsel for the Company, or counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or
in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration
Statement and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes,
for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant
to this Section 10, purchases Shares that a defaulting Underwriter agreed but failed to purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters, as provided in paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, does not exceed one-eleventh of the aggregate number of Shares to be purchased
on such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Shares
that such Underwriter agreed to purchase hereunder on such date plus such Underwriter’s pro rata share (based on the number
of Shares that such Underwriter agreed to purchase on such date) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made.
(c) If,
after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters, as provided in paragraph (a) above, the aggregate number of Shares that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, exceeds one-eleventh of the aggregate amount of Shares to be purchased on such
date, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement or, with respect to
any Additional Closing Date, the obligation of the Underwriters to purchase Shares on the Additional Closing Date, as the case
may be, shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant
to this Section 10 shall be without liability on the part of the Company, except that the Company will continue to be liable for
the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate
and shall remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter
for damages caused by its default.
11.
Payment
of Expenses
.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or
cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation,
(i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Shares and any taxes payable
in that connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing this Agreement;
(iv) the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and expenses incurred in connection
with the registration or qualification and determination of eligibility for investment of the Shares under the laws of such jurisdictions
as agreed between the Representatives and the Company and the preparation, printing and distribution of a Blue Sky Memorandum (including
the related fees and expenses of counsel for the Underwriters not to exceed $5,000); (vi) the cost of preparing share certificates;
(vii) the costs and charges of any transfer agent and any registrar; (viii) all expenses and application fees incurred in
connection with any filing with, and clearance of the offering by, FINRA,
provided
that the reimbursement obligation for
any legal fees and expenses of counsel for the Underwriters in connection with FINRA shall be documented and not exceed $30,000
(it being agreed and understood that any other related fees and expenses, including filing fees, shall be reimbursed in full);
(ix) all expenses incurred by the Company in connection with any “road show” presentation to potential investors, except
it is understood that 50% of the cost of any jointly used chartered aircraft in the roadshow shall be the responsibility of the
Underwriters, if the use of such chartered aircraft has been expressly approved by the Company; and (x) all expenses and application
fees related to the listing of the Shares on the Exchange
. It is understood,
however, that except as provided in this Section, the Underwriters will pay all of their costs and expenses incident to the performance
of their obligations hereunder, including fees and disbursements of their counsel and the travel expenses of their own representatives
in connection with any roadshow presentation to potential investors.
(b) If
(i) this Agreement is terminated prior to the Closing Date pursuant to clauses (i) or (ii) of Section 9, (ii) the Company for any
reason fails to tender the Shares for delivery to the Underwriters on the Closing Date or (iii) the Underwriters decline to purchase
the Shares for any reason permitted under this Agreement (other than following the termination of this Agreement pursuant to clauses
(iii) or (iv) of Section 9 or pursuant to Section 10(c) above) on the Closing Date, the Company agrees to reimburse the Underwriters
for all reasonable out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the
Underwriters in connection with this Agreement and the offering contemplated hereby;
provided
, however, that in the event
any such termination is effected after the Closing Date but prior to any Additional Closing Date with respect to the purchase of
any Option Shares, the Company shall only reimburse the Underwriters for all reasonable out-of-pocket costs and expenses (including
the reasonable fees and expenses of their counsel) incurred by the Underwriters after the Closing Date in connection with the proposed
purchase of any such Option Shares. For the avoidance of doubt, it is understood that the Company shall not pay or reimburse any
costs, fees or expenses incurred by any Underwriter that defaults on its obligations to purchase the Shares.
12.
Persons
Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and any controlling persons referred to herein and the affiliates of each
Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein. No purchaser of
Shares from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13.
Survival
.
The respective indemnities, rights of contribution, representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Shares and shall remain in full force and effect, regardless
of any termination of this Agreement or any investigation made by or on behalf of the Company or the Underwriters.
14.
Certain
Defined Terms
. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate”
has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than
a day on which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the
meaning set forth in Rule 405 under the Securities Act.
15.
Compliance
with USA Patriot Act
. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective
clients, including the Company, which information may include the name and address of their respective clients, as well as other
information that will allow the Underwriters to properly identify their respective clients.
16.
Miscellaneous
.
(a)
Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o
J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (fax: (212) 622-8358); Attention: Equity Syndicate Desk;
c/o Leerink Partners LLC One Federal Street, Floor 37, Boston, MA 02110, attention of John I. Fitzgerald, Esq. (fax: 617-918-4664);
and BMO Capital Markets Corp., 3 Times Square, New York, New York 10036, attention of Patrick Rosenthal. Notices to the Company
shall be given to it at ______________, _____________, ___________, (fax:______); Attention:__________, with a copy (which copy
shall not constitute notice) to Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017, Attention: Sophia
Hudson.
(b)
Governing
Law.
This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(c)
Judgment
Currency
. The Company agrees to indemnify each Underwriter, its directors, officers, affiliates and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
loss incurred by such Underwriter as a result of any judgment or order being given or made for any amount due hereunder and such
judgment or order being expressed and paid in a currency (the “
judgment currency
”) other than U.S. dollars and
as a result of any variation as between (i) the
rate of exchange at which the U.S. dollar amount is converted
into the judgment currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such indemnified person
is able to purchase U.S. dollars with the amount of the judgment currency actually received by the indemnified person. The foregoing
indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, the relevant currency.
(d)
Waiver
of Immunity
. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from jurisdiction
of any court of (i) the Netherlands, (ii) the United States or the State of New York, (iii) any jurisdiction in which it owns or
leases property or assets or from any legal process (whether through service of notice, attachment prior to judgment, attachment
in aid of execution, execution, set-off or otherwise) with respect to themselves or their respective property and assets or this
Agreement, the Company hereby irrevocably waives such immunity in respect of its obligations under this Agreement to the fullest
extent permitted by applicable law.
(e)
Submission
to Jurisdiction
. The Company hereby submits to the exclusive jurisdiction of the U.S. federal and New York state courts in
the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. The Company waives any objection which it may now or hereafter have to the laying of venue of
any such suit or proceeding in such courts. The Company agrees that final judgment in any such suit, action or proceeding brought
in such court shall be conclusive and binding upon the Company, and may be enforced in any court to the jurisdiction of which Company,
is subject by a suit upon such judgment. The Company irrevocably appoints Cogency Global Inc., located at 10 East 40th Street,
10th Floor, New York, New York 10016, as its authorized agent in the Borough of Manhattan in The City of New York upon which process
may be served in any such suit or proceeding, and agrees that service of process upon such authorized agent, and written notice
of such service to the Company, by the person serving the same to the address provided in this Section 16, shall be deemed in every
respect effective service of process upon the Company in any such suit or proceeding. The Company hereby represents and warrants
that such authorized agent has accepted such appointment and has agreed to act as such authorized agent for service of process.
The Company further agrees to take any and all action as may be reasonably necessary to maintain such designation and appointment
of such authorized agent in full force and effect for a period of seven years from the date of this Agreement.
(f)
Waiver
of Jury Trial.
Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of
or relating to this Agreement.
(g)
Counterparts.
This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute one and the same instrument.
(h)
Amendments
or Waivers.
No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom,
shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(i)
Headings.
The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing is in accordance with your
understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
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Very truly yours,
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Fireman B.V.
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By:
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Name:
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Title:
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Accepted: As of the date first written above
J.P. MORGAN SECURITIES LLC
LEERINK PARTNERS LLC
BMO CAPITAL MARKETS CORP.
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
J.P. MORGAN SECURITIES LLC
Authorized Signatory
LEERINK PARTNERS LLC
Authorized Signatory
BMO CAPITAL MARKETS CORP.
Authorized Signatory
Schedule 1
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Underwriter
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Number of Shares
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J.P. Morgan Securities LLC
Leerink Partners LLC
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BMO Capital Markets Corp.
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Total
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Annex A
a. Pricing Disclosure Package
b.
Pricing Information Provided Orally by Underwriters
Annex B
Written Testing-the-Waters Communications
Management Presentation dated July 2017
Exhibit B
Form of Waiver of
Lock-up
J.P. MORGAN SECURITIES LLC
LEERINK PARTNERS LLC
BMO CAPITAL MARKETS
CORP.
[InflaRx N.V.]
Public Offering of Common Stock
,
2017
[Name and Address of
Officer or Director
Requesting Waiver]
Dear Mr./Ms. [Name]:
This letter is being delivered to you in connection
with the offering by [InflaRx N.V.] (the “Company”) of ordinary shares (the “Ordinary Shares”), of the
Company and the lock-up letter dated __________________, 20__ (the “Lock-up Letter”), executed by you in connection
with such offering, and your request for a [waiver] [release] dated __________________, 20__, with respect to ______ Ordinary Shares
(the “Shares”).
J.P. Morgan
Securities LLC, Leerink Partners LLC and BMO Capital Markets Corp. hereby agree to [waive] [release] the transfer restrictions
set forth in the Lock-up Letter, but only with respect to the Shares, effective
__________________, 20__
;
provided
,
however
, that such [waiver] [release] is conditioned on the Company announcing the impending [waiver] [release]
by press release through a major news service at least two business days before effectiveness of such [waiver] [release]. This
letter will serve as notice to the Company of the impending [waiver] [release].
Except as expressly [waived] [released]
hereby, the Lock-up Letter shall remain in full force and effect.
[J.P Morgan Securities LLC, Leerink Partners
LLC and BMO Capital Markets Corp.]
cc: Company
Exhibit C
Form of Press Release
[InflaRx N.V.]
[Date]
[InflaRx N.V.] (“Company”) announced today that
J.P. Morgan Securities LLC, Leerink Partners LLC and BMO Capital Markets Corp. the lead book-running managers in the Company’s
recent public sale of ordinary shares, are [waiving] [releasing] a lock-up restriction with respect to ordinary shares of the Company
held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on ____________________,
20__, and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities
in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold
in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
Exhibit D
Form of Lock-Up
Agreement
,
2017
J.P. MORGAN SECURITIES LLC
LEERINK PARTNERS LLC
BMO Capital Markets
Corp.
As Representatives of
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
Leerink Partners LLC
299 Park Avenue, 21
st
Floor
New York, New York 10179
BMO Capital Markers Corp.
3 Times Square
New York, New York 10036
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Re:
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InflaRx GmbH Public Offering
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Ladies and Gentlemen:
The undersigned understands that you, as
Representatives of the several Underwriters, propose to enter into an underwriting agreement (the “Underwriting Agreement”)
with InflaRx GmbH, a German stock corporation, or its successor or parent entity following a corporate conversion or any substantially
similar transaction substantially as described under the caption “Corporate Reorganization” in the Registration statement,
the Time of Sale Prospectus and the Prospectus (such conversion or transaction, the “Reorganization”) (the “Company”),
providing for the public offering (the “Public Offering”) by the several Underwriters named in Schedule 1 to the Underwriting
Agreement (the “Underwriters”), of Common Shares, nominal value €0.12 per share (the “Common Shares”),
of the Company (the “Offered Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Underwriting Agreement.
In consideration of the Underwriters’
agreement to purchase and make the Public Offering of the Offered Securities, and for other good and valuable consideration receipt
of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of the Representatives on
behalf of the Underwriters, the undersigned will not, during the period beginning on the date of this letter agreement (this “Letter
Agreement”) and ending 180 days
after the date of the prospectus relating to the Public Offering
(the “Prospectus”) (such period, the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any Common Shares, or any securities convertible into or exercisable
or exchangeable for Common Shares (including without limitation, Common Shares or such other securities which may be deemed to
be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission
and securities which may be issued upon exercise of a share option or warrant), or publicly disclose the intention to make any
offer, sale, pledge or disposition, (2) enter into any swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Common Shares or such other securities, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise or (3) make any demand
for or exercise any right with respect to the registration of any Common Shares or any security convertible into or exercisable
or exchangeable for Common Shares. In addition, the foregoing restrictions shall not apply to:
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(A)
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the Reorganization, including the exchange of the Common Shares (or any security convertible into or exercisable or exchangeable
for Common Shares) by the undersigned pursuant to the Reorganization;
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(B)
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transfers of Common Shares:
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(i) as
a bona fide gift or gifts or by will, testamentary document or intestate succession,
(ii) to
any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this
Letter Agreement “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than
first cousin),
(iii) to
partners, members, stockholders or trust beneficiaries of the undersigned,
(iv) if
the undersigned is a corporation, partnership, limited liability company, trust or other business entity, to any direct or indirect
affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned or any investment
fund or other entity controlled or managed by the undersigned or any investment fund or other entity that controls the undersigned,
(v) solely
by operation of law, pursuant to a qualified domestic order or in connection with a divorce settlement,
(vi) pursuant
to the conversion of outstanding preferred shares of the Company outstanding as of the date of the Registration Statement into
Common Shares of the Company (including in connection with the Reorganization),
(vii) pursuant
to a bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of the Company’s
securities involving a Change of Control of the Company;
provided, that
in the event that such tender offer, merger, consolidation
or other such transaction is not completed, such securities held by the undersigned shall remain
subject to the provisions of this Letter Agreement; and
provided
further
,
that
for purposes of this clause (vii), “Change of Control” shall mean the transfer (whether by
tender offer, merger, consolidation, spin-off or other such transaction), in one transaction or a series of related transactions,
to a person or group of affiliated persons (other than an Underwriter pursuant to the Public Offering), of the Company’s
voting securities if, after such transfer, such person or group of affiliated persons would hold more than 60% of the outstanding
voting securities of the Company (or the surviving entity),
(viii) acquired
by the undersigned in the Public Offering or in open market transactions subsequent to the closing of the Public Offering.
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(C)
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the establishment of a written plan for trading securities pursuant to and in accordance with Rule 10b5-1(c) under the Exchange
Act, provided that such plan does not provide for the transfer of Common Shares during the Restricted Period; and
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(D)
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the delivery of Common Shares to the Company for cancellation (or the withholding and cancellation of Common Shares by the
Company) as payment for (i) the exercise price of any options granted in the ordinary course pursuant to any of the Company’s
current or future employee or director share option, incentive or benefit plans described in the Registration Statement or (ii)
the withholding taxes due upon the exercise of any such option or the vesting of any restricted Common Shares granted under any
such plan, with any Common Shares received as contemplated by any transaction described in this clause (D) remaining subject to
the terms of this Letter Agreement,
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provided
that in the case of any
transfer or distribution pursuant to clause (A) or (B) (other than in the case of a transfer described in clauses (B)(vii)), each
donee or distributee shall execute and deliver to the Representatives a lock-up letter in the form of this paragraph; and
provided
,
further
, that in the case of any transfer or distribution pursuant to clause (B) or (C), no filing by any party (donor,
donee, transferor or transferee) under the Securities Exchange Act of 1934, as amended, or other public announcement or filing
(including, for the avoidance of doubt, under any foreign law) shall be required or shall be made voluntarily in connection with
such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Restricted Period referred to above).
If the undersigned is an executive officer or director of the Company, the undersigned further agrees that the foregoing provisions
shall be equally applicable to any Company-directed Offered Securities the undersigned may purchase in the Public Offering.
If the undersigned is an officer or director
of the Company, (i) the Representatives on behalf of the Underwriters agree that, at least three business days before the effective
date of any release or waiver of the foregoing restrictions in connection with a transfer of Common Shares, the Representatives
on behalf of the Underwriters will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the
Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business
days before the effective date of the release or waiver. Any release or waiver granted by the Representatives on behalf of the
Underwriters hereunder to any such officer or director shall only be effective two business days after the publication date of
such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a
transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms
described in this letter to the extent and for the duration
that such terms remain in effect at the time of the transfer.
In furtherance of the foregoing, the Company,
and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized
to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants
that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed
to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives
of the undersigned.
The undersigned understands that, if (A)
the Company notifies the Representatives in writing, prior to the execution of the Underwriting Agreement, that it has determined
not to proceed with the Public Offering, (B) the Underwriting Agreement does not become effective by December 31, 2017, or (C)
the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior
to payment for and delivery of the Common Shares to be sold thereunder, the undersigned shall be released from, all obligations
under this Letter Agreement. The undersigned understands that the Underwriters are entering into the Underwriting Agreement and
proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement and any claim, controversy
or dispute arising under or related to this Letter Agreement shall be governed by and construed in accordance with the laws of
the State of New York.
[
Remainder of page intentionally left
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Very truly yours,
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By:
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Name:
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Title:
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Exhibit 4.2
REGISTRATION
RIGHTS AGREEMENT
dated as of
November [●], 2017
among
INFLARX N.V.
and
THE SHAREHOLDERS PARTY HERETO
TABLE
OF CONTENTS
Page
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ARTICLE 1
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Definitions
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Section 1.01.
Definitions.
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1
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Section 1.02.
Other Definitional and Interpretative Provisions.
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4
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ARTICLE 2
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Registration Rights
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Section 2.01.
Demand Registration.
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5
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Section 2.02.
Piggyback Registration.
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7
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Section 2.03.
Shelf Registration.
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8
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Section 2.04.
Registration Procedures.
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9
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Section 2.05.
Participation In Public Offering.
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13
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Section 2.06.
Rule 144 Sales; Cooperation By The Company.
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13
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ARTICLE 3
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Indemnification and Contribution
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Section 3.01.
Indemnification by the Company.
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13
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Section 3.02.
Indemnification by Participating Shareholders.
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14
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Section 3.03.
Undertaking.
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14
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Section 3.04.
Liability.
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14
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Section 3.05.
Conduct of Indemnification Proceedings.
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14
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Section 3.06.
Contribution.
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15
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ARTICLE 4
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Miscellaneous
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Section 4.01.
Binding Effect; Assignability; Benefit.
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16
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Section 4.02.
Notices.
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17
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Section 4.03.
Waiver; Amendment; Termination.
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18
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Section 4.04.
Governing Law.
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18
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Section 4.05.
Jurisdiction.
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18
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Section 4.06.
WAIVER OF JURY TRIAL.
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18
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Section 4.07.
Specific Enforcement.
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19
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Section 4.08.
Counterparts; Effectiveness.
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19
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Section 4.09.
Entire Agreement.
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19
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Section 4.10.
Severability.
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19
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Section 4.11.
Confidentiality.
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19
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Section 4.12.
Independent Nature of Shareholders' Obligations and Rights.
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20
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Exhibit A
Joinder
Agreement
REGISTRATION
RIGHTS AGREEMENT
THIS REGISTRATION
RIGHTS AGREEMENT dated as of November [●], 2017 (this “
Agreement
”) by and among InflaRx N.V., a Dutch
public company with limited liability (the “
Company
”), and the shareholders listed on the signature pages hereto,
as well as any Permitted Transferees (as defined below).
In consideration
of the mutual promises made herein and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Article
1
Definitions
Section 1.01
.
Definitions.
(a) The following terms, as used herein, have the following meanings:
“
Affiliate
”
means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control
with such Person,
provided
that no securityholder of the Company shall be deemed an Affiliate of any other securityholder
solely by reason of any investment in the Company, and
provided further
that “Affiliate” with respect to those
Shareholders that are advisory clients of a Person shall include other funds and accounts managed by such Person. For the purpose
of this definition, the term “
control
” (including, with correlative meanings, the terms “
controlling
”,
“
controlled by
” and “
under common control with
”), as used with respect to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
“
Business
Day
” means any day except a Saturday, Sunday or other day on which commercial banks in New York City or Amsterdam, the
Netherlands are authorized by law to close.
“
Common
Shares
” means ordinary shares, nominal value €0.12 per share, of the Company and any shares into which such Common
Shares may thereafter be converted or changed (including, without limitation, by way of share dividend, share split, reverse share
split, combination, reclassification or similar change in the capital structure of the Company involving such ordinary shares).
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended.
“
FINRA
”
means the Financial Industry Regulatory Authority (formerly, the National Association of Securities Dealers, Inc.) and any successor
thereto.
“
First
Public Offering
” means the Company’s initial Public Offering.
“
Permitted
Transferee
” means in the case of any Shareholder, a Person to whom Registrable Securities are Transferred by such Shareholder
in accordance with Section 4.01(b);
provided that
(i) such Transfer does not violate any agreements between such Shareholder
and the Company or any of the Company’s subsidiaries, (ii) such Transfer is not made in a registered offering or pursuant
to Rule 144 and (iii) such transferee shall only be a Permitted Transferee if and to the extent the transferor designates
the transferee as a Permitted Transferee entitled to rights hereunder pursuant to Section 4.01(b).
“
Person
”
means an individual, corporation, limited liability company, partnership, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality thereof.
“
Public
Offering
” means an underwritten public offering of Registrable Securities of the Company pursuant to an effective registration
statement under the Securities Act, other than pursuant to a registration statement on Form S-4, Form F-4 or Form S-8 or any similar
or successor form.
“
Registrable
Securities
” means, at any time, any Common Shares and any other securities issued or issuable by the Company or any
of its successors or assigns in respect of any such Common Shares by way of conversion, exchange, exercise, dividend, split, reverse
split, combination, recapitalization, reclassification, merger, amalgamation, consolidation, sale of assets, other reorganization
or otherwise until (i) a registration statement covering such Common Shares or such other securities has been declared effective
by the SEC and such Common Shares or such other securities have been disposed of pursuant to such effective registration statement,
(ii) such Common Shares or such other securities are sold under circumstances in which all of the applicable conditions of Rule
144 are met or (iii) such Common Shares or such other securities are eligible for sale by the holder thereof without registration
under Rule 144 without volume limitation during a three-month period.
“
Registration
Expenses
” means any and all expenses incident to the performance of, or compliance with, any registration or marketing
of Registrable Securities, including all (i) registration and filing fees, and all other fees and expenses payable in connection
with the listing of securities on any securities exchange or automated interdealer quotation system, (ii) fees and expenses of
compliance with any securities or “blue sky” laws (including reasonable and documented fees and disbursements of counsel
in connection with “blue sky” qualifications of the securities registered), (iii) expenses in connection with the
preparation, printing, mailing and delivery of any registration statements, prospectuses and other documents in connection therewith
and any amendments or supplements thereto, (iv) security engraving and printing expenses, (v) internal expenses of the Company
(including all salaries and expenses of its officers and
employees performing
legal or accounting duties), (vi) reasonably incurred fees and disbursements of counsel for the Company and customary fees and
expenses for independent certified public accountants retained by the Company (including the expenses relating to any comfort
letters or costs associated with the delivery by independent certified public accountants of any comfort letters requested pursuant
to Section 2.05(h)), (vii) reasonable fees and expenses of any special experts retained by the Company in connection with
such registration, (viii) reasonably incurred fees and disbursements of one counsel for all of the Shareholders participating
in the offering selected by the Shareholders holding the majority of the Registrable Securities to be sold in the offering for
the account of all Shareholders in the offering, (ix) fees and expenses in connection with any review by FINRA of the underwriting
arrangements or other terms of the offering, and all fees and expenses of any “qualified independent underwriter,”
including the reasonable and documented fees and expenses of any counsel thereto, (x) reasonable fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but excluding any underwriting fees, discounts and commissions attributable
to the sale of Registrable Securities and covered fees (other than pursuant to clause (ix) hereof), (xi) costs of printing and
producing any agreements among underwriters, underwriting agreements, any “blue sky” or legal investment memoranda
and any selling agreements and other documents in connection with the offering, sale or delivery of the Registrable Securities,
(xii) transfer agents’ and registrars’ fees and expenses and the fees and expenses of any other agent or trustee appointed
in connection with such offering and (xiii) expenses relating to any analyst or investor presentations or any “road shows”
undertaken in connection with the registration, marketing or selling of the Registrable Securities. Except as set forth in clause
(viii) above, Registration Expenses shall not include any out-of-pocket expenses of the Shareholders (or the agents who manage
their accounts). For the avoidance of doubt, Registration Expenses shall not include any underwriting fees, discounts, commissions
or taxes attributable to the sale of Registrable Securities.
“
Rule
144
” means Rule 144 (or any successor or similar provisions) under the Securities Act.
“
SEC
”
means the Securities and Exchange Commission.
“
Securities
Act
” means the Securities Act of 1933, as amended.
“
Shareholder
”
means at any time, any Person (other than the Company) who shall then be a party to or bound by this Agreement, so long as such
Person shall “beneficially own” (as such term is defined in Rule 13d-3 of the Exchange Act) any Registrable Securities.
“
Transfer
”
means, with respect to any Registrable Securities, (i) when used as a verb, to sell, assign, dispose of, exchange, pledge, encumber,
hypothecate or otherwise transfer such Registrable Securities or any participation
or interest
therein, whether directly or indirectly, or agree or commit to do any of the foregoing and (ii) when used as a noun, a direct
or indirect sale, assignment, disposition, exchange, pledge, encumbrance, hypothecation, or other transfer of such Registrable
Securities or any participation or interest therein or any agreement or commitment to do any of the foregoing.
(b)
Each of the following terms is defined in the Section set forth opposite such term:
|
Term
|
Section
|
|
Agreement
|
Preamble
|
|
Company
|
Preamble
|
|
Damages
|
3.01
|
|
Demand Notice
|
2.01(a)
|
|
Demand Registration
|
2.01(a)
|
|
Indemnified Party
|
3.05
|
|
Indemnifying Party
|
3.05
|
|
Initial Requesting Shareholders
|
2.01(a)
|
|
Initial Shelf Requesting Shareholders
|
2.03
|
|
Joinder Agreement
|
4.01(b)
|
|
Maximum Offering Size
|
2.01(e)
|
|
Notice
|
4.02
|
|
Piggyback Registration
|
2.02(a)
|
|
Requesting Shareholder
|
2.01(a)
|
|
Shelf Registration
|
2.03
|
|
Shelf Requesting Shareholder
|
2.03
|
|
Underwritten Takedown
|
2.03
|
Section 1.02.
Other Definitional and Interpretative Provisions.
The words “hereof”, “herein” and “hereunder”
and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of
this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or
interpretation hereof. References to Articles, Sections or Exhibits are to Articles, Sections and Exhibits of this Agreement unless
otherwise specified. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement
as if set forth in full herein. Any capitalized term used in any Exhibit but not otherwise defined therein shall have the meaning
as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the
singular. Whenever the words “include”, “includes” or
“including”
are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not
they are in fact followed by those words or words of like import. “Writing”, “written” and comparable
terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References
to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance
with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that Person. References
from or through any date mean, unless otherwise specified, from and including or through and including, respectively.
Article
2
Registration Rights
Section
2.01.
Demand Registration
. (a) If at any time after 180 days following the completion of the First Public Offering,
the Company shall receive a request from a Shareholder or group of Shareholders, in each case holding at least 40% of the
outstanding Registrable Securities (the requesting Shareholder(s) shall be referred to herein as the “
Initial
Requesting Shareholders
”), that the Company effect the registration under the Securities Act of all or any portion
of such Initial Requesting Shareholder’s Registrable Securities, and specifying the intended method of disposition
thereof, then the Company shall give notice (a “
Demand Notice
”) of such requested registration (each such
request shall be referred to herein as a “
Demand Registration
”) to the other Shareholders, which notice
shall be given not later than five Business Days prior to the anticipated filing date of the registration statement relating
to such Demand Registration. Such other Shareholders may, upon notice received by the Company no later than two Business Days
after the date of notice of a Demand Registration, request that the Company also effect the registration under the Securities
Act of all or any portion of each such other Shareholder’s Registrable Securities (such other requesting Shareholders,
together with the Initial Requesting Shareholder(s), shall be referred to herein as the “
Requesting
Shareholders
”). Thereafter, subject to the restrictions in Section 2.01(e), the Company shall use commercially
reasonable efforts to effect the registration under the Securities Act of all Registrable Securities for which the Requesting
Shareholders have requested registration under this Section 2.01 to the extent necessary to permit the disposition of
the Registrable Securities so to be registered (in accordance with the intended methods thereof as aforesaid),
provided
that the Company shall be permitted to effect the registration under the Securities Act of any securities other than the
Registrable Securities (including for the benefit of Persons not party to this Agreement) as part of any Demand Registration;
provided
further
that the Company shall not be obligated to effect a Demand Registration unless the aggregate gross proceeds
expected to be received from the sale of the Registrable Securities requested to be included in such Demand Registration
equals or exceeds $20,000,000 or such lesser amount that
constitutes
all of the Requesting Shareholder’s Registrable Securities (provided that such lesser amount is at least $10,000,000).
In no event shall the Company be required to effect (i) more than one Demand Registration hereunder within any six-month period
or (ii) any Demand Registration if, at the time of such request, six or more Demand Registrations and Underwritten Takedowns (as
defined below) have previously been effected ((i) and (ii) hereinafter collectively referred to as the “
Demand Registration
Limitations
”).
(b)
At any time prior to the effective date of the registration statement relating to a Demand Registration, a Shareholder
may withdraw from the related registration by providing written notice to the Company. If sufficient Registrable Securities are
so withdrawn such that the number of Registrable Securities to be included in such Demand Registration does not meet the applicable
threshold required for such Demand Registration pursuant to Section 2.01(a), the Company may cease all efforts to effect such
Demand Registration, and upon the Company ceasing all efforts to effect registration, such Demand Registration shall be deemed
revoked. A request, so revoked, shall be considered to be a Demand Registration for purposes of the Demand Registration Limitations
unless (i) such revocation arose out of the fault of the Company or (ii) the Requesting Shareholders reimburse the Company for
all Registration Expenses (other than the expenses set forth under clause (v) of the definition of the term Registration Expenses)
incurred prior to such revocation, pro rata among such Requesting Shareholders on the basis of the number of Registrable Securities
of such Requesting Shareholders that were to be included in such revoked Demand Registration.
(c)
The Company shall be liable for and shall pay all Registration Expenses in connection with any Demand Registration, regardless
of whether such registration is effected, unless the Requesting Shareholders elect to pay such Registration Expenses as described
in the last sentence of Section 2.01(b).
(d)
A
Demand Registration shall not be deemed to have occurred (other than as provided in Section 2.01(b)) unless the
registration statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for
a period of at least 30 days (or such shorter period in which all Registrable Securities of the Requesting Shareholders
included in such registration have actually been sold thereunder).
(e)
If a Demand Registration involves a Public Offering and the managing underwriter advises the Company and the Requesting
Shareholder that, in its view, the number of shares of Registrable Securities requested to be included in such registration (including
any securities that the Company proposes to be included that are not Registrable Securities) exceeds the largest number of shares
that can be sold without having an adverse effect on such offering, including the price at which such shares can be sold (the
“
Maximum Offering
Size
”),
the Company shall include in such registration, in the priority listed below, up to the Maximum Offering Size:
(i)
first, all Registrable Securities requested to be included in such registration by all Requesting Shareholders (allocated,
if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the basis of the relative
number of Registrable Securities so requested to be included in such registration by each such Shareholder, and
(ii)
second, any securities proposed to be registered by the Company (including for the benefit of any other Persons not party
to this Agreement).
(f)
Upon notice to the Requesting Shareholders, the Company may postpone effecting a Demand Registration on two occasions during
any period of twelve consecutive months for a reasonable time specified in the notice but not exceeding 90 days in the aggregate
in any period of twelve consecutive months, if (i) the Company reasonably determines in good faith that effecting the registration
would materially and adversely affect an offering of securities of the Company the preparation of which had then been commenced,
or (ii) the Company is in possession of material non-public information the disclosure of which during the period specified in
such notice the Company reasonably believes would not be in the best interests of the Company.
Section 2.02.
Piggyback Registration
. (a) If at any time later than 180 days after the Initial Public Offering the Company proposes to
register any Common Shares under the Securities Act (other than (i) a Shelf Registration, which will be subject to the provisions
of Section 2.03; provided that any Underwritten Takedown will be subject to this Section 2.02, or (ii) a registration on Form
S-8, F-4 or S-4, or any successor or similar forms, relating to Common Shares issuable upon exercise of employee stock options
or in connection with any employee benefit or similar plan of the Company or in connection with a direct or indirect acquisition
by the Company of another Person), whether or not for sale for its own account, the Company shall each such time give prompt notice
at least two Business Days prior to the anticipated filing date of the registration statement relating to such registration to
each Shareholder, which notice shall set forth such Shareholder’s rights under this Section 2.02 and shall offer such
Shareholder the opportunity to include in such registration statement the number of Registrable Securities of the same class or
series as those proposed to be registered as each such Shareholder may request (a “
Piggyback Registration
”).
Any such Shareholder may, within two Business Days after the receipt of notice from the Company, request that the Company also
effect the registration under the Securities Act of all or any portion of such Shareholder’s Registrable Securities. Thereafter,
subject to the provisions of Section 2.02(b), the Company shall use commercially reasonable efforts to effect the registration
under the Securities Act
of all Registrable
Securities that the Company has been so requested to register by all such Shareholders, to the extent necessary to permit the
disposition of the Registrable Securities so to be registered,
provided
that (A) if such registration involves a Public
Offering, all such Shareholders requesting to be included in the Company’s registration must sell their Registrable Securities
to the underwriters selected as provided in
Section 2.05(f)
on
the same terms and conditions as apply to the Company, and (B) if, at any time after giving notice of its intention to register
any Common Shares pursuant to this Section 2.02(a) and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason not to register such securities, the Company shall
give notice to all such Shareholders and, thereupon, shall be relieved of its obligation to register any Registrable Securities
in connection with such registration. No registration effected under this Section 2.02 shall relieve the Company of its obligations
to effect a Demand Registration to the extent required by Section 2.01 or a Shelf Registration to the extent required by
Section 2.03. The Company shall pay all Registration Expenses in connection with each Piggyback Registration.
(b)
If a Piggyback Registration involves a Public Offering and the managing underwriter advises the Company that, in its view,
the number of Shares that the Company and such Shareholders intend to include in such registration exceeds the Maximum Offering
Size, the Company shall include in such registration, in the following priority, up to the Maximum Offering Size:
(i)
first, so much of the Common Shares proposed to be registered for the account of the Company, as would not cause the offering
to exceed the Maximum Offering Size,
(ii)
second, all Registrable Securities requested to be included in such registration by any Shareholders pursuant to this Section
2.02 (allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among such Shareholders on the
basis of the relative number of shares of Registrable Securities so requested to be included in such registration by each such
Shareholder, and
(iii)
third, any securities proposed to be registered for the account of any other Persons with such priorities among them as
the Company shall determine.
Section 2.03.
Shelf Registration
. (a) At any time after the first anniversary of the First Public Offering, if the Company is eligible
to use Form F-3 or Form S-3, a Shareholder or group of Shareholders, in each case holding at least 20% of the Registrable Securities
(the requesting Shareholder(s) shall be referred to herein as the “
Initial Shelf Requesting Shareholders
”),
may request the Company to effect a registration of some or all of the Registrable Securities held by such Initial Shelf Requesting
Shareholders under a Registration Statement
pursuant to
Rule 415 under the Securities Act (or any successor or similar rule) (a “
Shelf Registration
”). The Company
shall give notice of such requested Shelf Registration to the other Shareholders at least two Business Days prior to the anticipated
filing date of the registration statement relating to such Shelf Registration. Such other Shareholders may, upon notice received
by the Company no later than two Business Days after the date of the notice of a Shelf Registration, request that the Company
also effect a registration of some or all of the Registrable Securities held by such other Shareholders (such other requesting
Shareholders, together with the Initial Shelf Requesting Shareholders, the “
Shelf Requesting Shareholders
”).
Thereafter, subject to the restrictions set forth in Section 2.01(e), the Company shall use commercially reasonable efforts to
effect the registration under the Securities Act of all Registrable Securities for which the Shelf Requesting Shareholders have
requested registration under this Section 2.03 to the extent necessary to permit the disposition of the Registrable Securities
so to be registered on such Shelf Registration,
provided
that the Company shall be permitted to effect the registration
under the Securities Act of any securities other than the Registrable Securities (including for the benefit of Persons not party
to this Agreement) as part of any Shelf Registration. The Company shall only be required to effectuate one Public Offering from
such Shelf Registration (an “
Underwritten Takedown
”) within any six-month period, which offering shall be deemed
a Demand Registration for purposes of the Company’s obligation to effect no more than six Demand Registrations in the aggregate
as set forth in Section 2.01(a).
(b) The
provisions of Section 2.01 shall apply
mutatis mutandis
to each Underwritten Takedown except as otherwise provided
in this Section 2.03, with references to “filing of the registration statement” or “effective date” being
deemed references to filing of a prospectus or supplement for such offering, references to “registration” being deemed
references to the offering, references to “Demand Registration” being deemed references to “Shelf Registration”
or “Underwritten Takedown” as applicable and references to “Requesting Shareholders” being deemed references
to “Shelf Requesting Shareholders”;
provided
that Shelf Requesting Shareholders shall only include Shareholders
whose Registrable Securities are included in such Shelf Registration or may be included therein without the need for an amendment
to such Shelf Registration (other than an automatically effective amendment). So long as the Shelf Registration is effective,
no Shareholder may request any Demand Registration pursuant to Section 2.01 with respect to Registrable Securities that are
registered or registrable without the need for an amendment (other than an automatically effective amendment) on such Shelf Registration.
Section 2.04.
Registration Procedures
. Whenever Shareholders request that any Registrable Securities be registered pursuant to Section
2.01, 2.02, or 2.03, subject to the provisions of such Sections, the Company shall use
commercially
reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method
of disposition thereof as promptly as practicable, and, in connection with any such request:
(a)
The Company shall use commercially reasonable efforts to prepare and file with the SEC within 120 days of such request
or such later date as necessary to comply with applicable law, a registration statement on any form for which the Company then
qualifies or that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable
Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use commercially reasonable
efforts to cause such filed registration statement to become and remain effective for a period of not less than 30 days, or in
the case of a Shelf Registration, three years (or such shorter period in which all of the Registrable Securities of the Shareholders
included in such registration statement shall have actually been sold thereunder or cease to be Registrable Securities).
(b)
Prior to filing a registration statement or prospectus or any amendment or supplement thereto (other than any report filed
pursuant to the Exchange Act that is incorporated by reference therein), the Company shall, if requested, furnish to each participating
Shareholder and each underwriter, if any, of the Registrable Securities covered by a registration statement or prospectus or any
amendments or supplements thereto copies of such registration statement, prospectus, amendment or supplement in the form as proposed
to be filed, and thereafter the Company shall furnish to such Shareholder and underwriter, if any, such number of copies of such
registration statement, prospectus, amendment and supplement (in each case excluding all exhibits thereto and documents incorporated
by reference therein unless specifically requested), the prospectus included in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under Rule 424, Rule 430A, Rule 430B or Rule 430C under
the Securities Act as such Shareholder or underwriter may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Shareholder.
(c)
After the filing of the registration statement, the Company shall (i) cause the related prospectus to be supplemented
by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act, (ii) comply
with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such registration
statement during the applicable period in accordance with the intended methods of disposition by the Shareholders thereof set
forth in such registration statement or supplement to such prospectus and (iii) promptly notify each Shareholder holding Registrable
Securities covered by such registration statement of any stop order issued or threatened by the SEC or any state securities commission
and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d)
The Company shall use commercially reasonable efforts to register or qualify the Registrable Securities covered by such
registration statement under such other securities or “blue sky” laws of such jurisdictions in the United States as
any Shareholder holding such Registrable Securities reasonably (in light of such Shareholder’s intended plan of distribution)
requests;
provided
that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where
it would not otherwise be required to qualify but for this Section 2.04(d), (B) subject itself to taxation in any such jurisdiction
or (C) consent to general service of process in any such jurisdiction.
(e)
The Company shall as promptly as practicable notify each Shareholder holding such Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of
the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered
to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly
prepare and make available to each such Shareholder and file with the SEC any such supplement or amendment.
(f)
The Company shall have the right, in its sole discretion, to select an underwriter or underwriters in connection with any
Public Offering resulting from any exercise of a Demand Registration or Underwritten Takedown. In connection with any Public Offering,
the Company shall enter into customary agreements (including an underwriting agreement in customary form) and take such all other
actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such
Public Offering, including if necessary in the judgment of Company counsel, the engagement of a “qualified independent underwriter”
in connection with the qualification of the underwriting arrangements with FINRA.
(g)
In connection with any Public Offering, the Company shall use commercially reasonable efforts to furnish to each underwriter,
if any, a signed counterpart, addressed to such underwriter, of (i) an opinion or opinions of counsel to the Company and (ii)
a comfort letter or comfort letters from the Company’s independent public accountants, each in customary form and covering
such matters of the kind customarily covered by opinions or comfort letters, as the case may be, as the managing underwriter(s)
therefor reasonably requests.
(h)
The Company shall use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and
make available to its security holders, as soon as reasonably practicable, an earning statement or such other document covering
a period of 12 months, beginning within three months after the effective date of the registration statement, which earning statement
satisfies the requirements of Rule 158 under the Securities Act.
(i)
The Company may require each Shareholder promptly to furnish in writing to the Company such information regarding the distribution
of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally
required in connection with such registration. In connection with a Shelf Registration, any Shareholder that does not provide
such information within two Business Days of a request by the Company may have its Registrable Securities excluded from such Shelf
Registration.
(j)
Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described
in Section 2.04(e), such Shareholder shall forthwith discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such Shareholder’s receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2.04(e), and, if so directed by the Company, such Shareholder shall deliver to the Company
all copies, other than any permanent file copies then in such Shareholder’s possession, of the most recent prospectus covering
such Registrable Securities at the time of receipt of such notice. If the Company shall give such notice, the Company shall extend
the period during which such registration statement shall be maintained effective (including the period referred to in Section
2.04(a)) by the number of days during the period from and including the date of the giving of notice pursuant to Section
2.04(e)
to the date when the Company shall make available to such Shareholder a prospectus supplemented or amended to conform with
the requirements of Section 2.04(e).
(k)
The Company shall use commercially reasonable efforts to list all Registrable Securities sold pursuant to an offering conducted
pursuant to this Agreement on any securities exchange or quotation system on which the Common Shares are then listed or traded.
(l)
In any Public Offering conducted pursuant to a Demand Registration, the Company shall have appropriate officers of the
Company (i) be available to prepare and make presentations at any “road shows” and before analysts and (ii) otherwise
use their reasonable efforts to cooperate as reasonably requested by the underwriters in the offering, marketing or selling of
the Registrable Securities.
(m)
Each Shareholder agrees that, in connection with any offering conducted pursuant to this Agreement, it will not prepare
or use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Securities Act) without the prior
written authorization of the Company (which authorization shall not be unreasonably withheld) and will not distribute any written
materials in connection with the offer or sale of the Registrable Securities pursuant to any Public Offering conducted hereunder
other than the prospectus and any such free writing prospectus so authorized.
Section 2.05
.
Participation In Public Offering.
No Shareholder may participate in any Public Offering hereunder unless such Shareholder
(a) agrees to sell such Shareholder’s Registrable Securities on the basis provided in any underwriting arrangements approved
by the Company and consistent with the provisions of this Agreement and (b) completes and executes all questionnaires, powers
of attorney, indemnities, underwriting agreements and other documents consistent with the provisions of this Agreement and reasonably
required under the terms of such underwriting arrangements and the provisions of this Agreement in respect of registration rights.
Section 2.06
.
Rule 144 Sales; Cooperation By The Company.
If any Shareholder shall transfer any Registrable Securities pursuant to Rule
144, the Company shall cooperate, to the extent commercially reasonable, with such Shareholder and shall provide to such Shareholder
such information as such Shareholder shall reasonably request. Without limiting the foregoing, the Company shall at any time after
any of the Company’s Common Shares are registered under the Securities Act or the Exchange Act: (i) make and keep available
public information, as those terms are contemplated by Rule 144; (ii) timely file with the SEC all reports and other documents
required to be filed under the Securities Act and the Exchange Act; and (iii) furnish to each Shareholder forthwith upon request
a written statement by the Company as to its compliance with the reporting requirements of the Securities Act and the Exchange
Act, a copy of the most recent annual or quarterly report of the Company, and such other information as such Shareholder may reasonably
request in order to avail itself of any rule or regulation of the SEC allowing such Shareholder to sell any Registrable Securities
without registration.
Article
3
Indemnification and Contribution
Section 3.01.
Indemnification by the Company
. The Company agrees to indemnify and hold harmless each Shareholder holding Registrable
Securities covered by a registration statement, and all officers, directors and employees of such Shareholder, and each Person,
if any, who controls such Shareholder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages, liabilities and expenses (including reasonable and documented expenses
of investigation and reasonable and documented attorneys’ fees and expenses) (collectively, “
Damages
”)
caused by or relating to any untrue statement or alleged untrue statement of a material fact contained in any registration statement
or prospectus relating to the Registrable Securities (as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused by or relating to any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such
Damages are caused by or related to
any such untrue
statement or omission or alleged untrue statement or omission so made based upon information furnished in writing to the Company
by such Shareholder or on such Shareholder’s behalf expressly for use therein. The Company also agrees to indemnify any
underwriters of the Registrable Securities, their officers and directors and each Person who controls such underwriters within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act on substantially the same basis as that of the
indemnification of the Shareholders provided in this Section 3.01.
Section 3.02.
Indemnification by Participating Shareholders
. (a) Each Shareholder holding Registrable Securities covered by a registration
statement agrees, severally but not jointly, to indemnify and hold harmless the Company, its officers, directors and agents and
each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the indemnity from the Company to such Shareholder provided in Section 3.01, but only with respect
to information furnished in writing by such Shareholder or on such Shareholder’s behalf relating to such Shareholder or
the Registrable Securities held by it expressly for use in any registration statement or prospectus relating to the Registrable
Securities, or any amendment or supplement thereto, or any preliminary prospectus. Each such Shareholder also agrees to indemnify
and hold harmless underwriters of the Registrable Securities, their officers and directors and each Person who controls such underwriters
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act on substantially the same basis as that
of the indemnification of the Company provided in this Section 3.02.
Section 3.03.
Undertaking.
As a condition to including Registrable Securities in any registration statement filed in accordance with
Article 2, the Company may require that it shall have received an undertaking reasonably satisfactory to it from any underwriter
to indemnify and hold it harmless to the extent customarily provided by underwriters with respect to similar securities
Section 3.04.
Liability
. No Shareholder shall be liable for indemnification obligations under Section 3.02 for any Damages in excess
of the net proceeds realized by such Shareholder in the sale of Registrable Securities of such Shareholder to which such Damages
relate.
Section 3.05.
Conduct of Indemnification Proceedings
. If any proceeding (including any governmental investigation) shall be brought or
asserted against any Person in respect of which indemnity may be sought pursuant to Section 3.01 or 3.02 such Person (an “
Indemnified
Party
”) shall promptly notify the Person against whom such indemnity may be sought (the “
Indemnifying Party
”)
in writing and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory
to such Indemnified Party, and shall assume the payment of all reasonable and documented fees and expenses,
provided
that
the failure of any Indemnified Party so to notify the Indemnifying
Party shall
not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party is materially
prejudiced by such failure to notify. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (a) the Indemnifying Party
and the Indemnified Party shall have mutually agreed to the retention of such counsel or (b) in the reasonable judgment of such
Indemnified Party representation of both parties by the same counsel would be inappropriate due to actual or potential differing
interests between them, including one or more defenses or counterclaims that are different from or in addition to those available
to the Indemnifying Party. It is understood that, in connection with any proceeding or related proceedings in the same jurisdiction,
the Indemnifying Party shall not be liable for the reasonable and documented fees and expenses of more than one separate firm
of attorneys (in addition to one local counsel per jurisdiction) at any time for all such Indemnified Parties, and that all such
fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Indemnified Parties,
such firm shall be designated in writing by the Indemnified Parties. The Indemnifying Party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such consent, or if there be a final judgment for
the plaintiff, the Indemnifying Party shall indemnify and hold harmless such Indemnified Parties from and against any loss or
liability (to the extent stated above) by reason of such settlement or judgment. Without the prior written consent of the Indemnified
Party, no Indemnifying Party shall effect any settlement of any pending or threatened proceeding in respect of which any Indemnified
Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability arising out of such proceeding.
Section 3.06.
Contribution
. (a) If the indemnification provided for in Section 3.01 or 3.02 is unavailable to the Indemnified Parties
in respect of any Damages, then each Indemnifying Party, in lieu of indemnifying the Indemnified Parties, shall contribute to
the amount paid or payable by such Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Damages
as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall
be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied
by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any
Damages shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’ or
other reasonable fees or expenses incurred by such party
in connection
with any proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided
for in Sections 3.01 or 3.02 was available to such party in accordance with its terms.
(b) The
parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 3.06 were determined by
pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred
to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 3.06, no Shareholder shall be required
to contribute, in the aggregate, any amount in excess of the amount by which the proceeds actually received by such Shareholder
from the sale of the Registrable Securities subject to the proceeding exceeds the amount of any damages that such Shareholder
has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, except
in the case of fraud by such Shareholder. Each Shareholder’s obligation to contribute pursuant to this Section 3.06 is several
in the proportion that the proceeds of the offering received by such Shareholder bears to the total proceeds of the offering received
by all such Shareholders and not joint. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Article 3 are in addition to any liability that the Indemnifying Parties
may have to the Indemnified Parties.
Article
4
Miscellaneous
Section 4.01
.
Binding Effect; Assignability; Benefit.
(a) This Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, successors, legal representatives and permitted assigns. Any Shareholder that ceases to own beneficially
any Registrable Securities shall cease to be bound by the terms hereof (other than (i) the provisions of Article 3 applicable
to such Shareholder with respect to any offering of Registrable Securities completed before the date such Shareholder ceased to
own any Registrable Securities and (ii) this Article 4).
(b)
Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable
by any party hereto pursuant to any Transfer of Registrable Securities or otherwise, except that each Shareholder may assign all
or any portion of its rights hereunder to any Permitted Transferee of such Shareholder with respect to not less than 5% of the
outstanding Common Shares at the time of such transfer;
provided
,
however
, that no such minimum share assignment
requirement shall be necessary for an assignment by a Shareholder which is a (i) partnership to its partners in accordance with
their partnership interests, (ii) a limited liability company to its members in accordance
with their
interests in the limited liability company, (iii) a corporation to its stockholders in accordance with their interests in the
corporation or (iv) to an Affiliate of such Shareholder. Any such Permitted Transferee must (unless already bound hereby) execute
and deliver to the Company an agreement to be bound by this Agreement in the form of Exhibit A hereto (a “
Joinder Agreement
”)
and shall thenceforth be a “Shareholder.” Any such transfer to a Permitted Transferee must be in compliance with the
Securities Act and any other applicable securities “blue sky” laws.
(c)
Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the parties hereto, and
their respective heirs, successors, legal representatives and permitted assigns, any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
Section 4.02.
Notices
. All notices, requests and other communications (each, a “
Notice
”) to any party shall be in
writing and shall be delivered in person, mailed by certified or registered mail, return receipt requested, or sent by facsimile
transmission or email transmission,
if to the
Company to:
InflaRx N.V.
Winzerlaer Str. 2
07745 Jena, Germany
Attention: Niels Riedemann, Chief Executive Officer
Email: Niels.Riedemann@inflarx.de
with a copy
to:
Davis Polk & Wardwell
LLP
450 Lexington Avenue
New York, New York 10017
Attention: Sophia Hudson
Fax: (212) 701-4762
Email: sophia.hudson@davispolk.com
if to any
Shareholder, at the address for such Shareholder listed on the signature pages below or otherwise provided to the Company as set
forth below.
Any Notice
shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt
and such day is a Business Day in the place of receipt. Otherwise, such Notice shall be deemed not to have been received until
the next succeeding Business Day in the place of receipt. Any Person that becomes a Shareholder after the date hereof shall provide
its address, fax number and email address to the Company.
Section 4.03.
Waiver; Amendment; Termination
. (a) The provisions of this Agreement, including the provisions of this sentence, may not
be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given without
the written consent of the Company and holders of a majority of the Registrable Securities; provided, however, that in no event
shall the obligations of any holder of Registrable Securities be materially increased or the rights of any Stockholder be adversely
affected (without similarly adversely affecting the rights of all Stockholders), except upon the written consent of such holder.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of holders of Registrable Securities whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect the rights of other holders of Registrable Securities may be given by holders
of at least a majority of the Registrable Securities being sold by such holders pursuant to such Registration Statement.
(b) This
Agreement shall terminate upon the earlier to occur of (i) the fifth anniversary of the First Public Offering and (ii) the date
on which there are no remaining Registrable Securities held by the Shareholders party hereto.
Section 4.04.
Governing Law
. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State
of New York, without regard to the conflicts of laws rules of such state.
Section 4.05.
Jurisdiction
. The parties hereby agree that any suit, action or proceeding seeking to enforce any provision of, or based
on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in
any state or federal court in The City of New York, Borough of Manhattan, so long as one of such courts shall have subject matter
jurisdiction over such suit, action or proceeding, and that any cause of action arising out of this Agreement shall be deemed
to have arisen from a transaction of business in the State of New York, and each of the parties hereby irrevocably consents to
the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in
any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any
party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each
party agrees that service of process on such party as provided in
Section
4.02
shall be deemed effective service of process on such party.
Section 4.06.
WAIVER OF JURY TRIAL
. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR
RELATED TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 4.07.
Specific Enforcement
. Each party hereto acknowledges that the remedies at law of the other parties for a breach or threatened
breach of this Agreement would be inadequate and, in recognition of this fact, any party to this Agreement, without posting any
bond or furnishing other security, and in addition to all other remedies that may be available, shall be entitled to obtain equitable
relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable
remedy that may then be available.
Section 4.08.
Counterparts; Effectiveness
. This Agreement may be executed (including by facsimile or other electronic image scan transmission)
with counterpart signature pages or in any number of counterparts, each of which shall be deemed to be an original, and all of
which shall, taken together, be considered one and the same agreement, it being understood that each party need not sign the same
counterpart. This Agreement shall become effective when each party hereto shall have executed and delivered this Agreement. Until
and unless each party has executed and delivered this Agreement, this Agreement shall have no effect and no party shall have any
right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).
Section 4.09.
Entire Agreement
. This Agreement constitutes the entire agreement and understanding among the parties hereto with respect
to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings, both oral
and written, among the parties hereto with respect to the subject matter hereof.
Section 4.10.
Severability
. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic
or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon
such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in an acceptable manner so that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
Section 4.11
.
Confidentiality.
Each Shareholder agrees that it will use, and will cause each
of its affiliates, and each of its and their respective partners, members, managers, shareholders, directors, officers, employees
and agents (collectively, “
Agents
”) to use, all commercially reasonable efforts to maintain the confidentiality
of all confidential information disclosed to it by the Company
and
identified in writing as confidential and will not, without the prior written consent of the Company, use such confidential information
other than in connection with the transactions contemplated herein. The foregoing shall not apply to confidential information
that (a) is known or becomes known to the public in general (other than as a result of a breach of this Section 4.11 by such
Shareholder), (b) is or has been independently developed or conceived by the Shareholder without use of the Company’s confidential
information, or (c) is or has been made known or disclosed to the Shareholder by a third party without a breach of any obligation
of confidentiality such third party may have to the Company; provided, however, that any Shareholder may disclose confidential
information (i) to its attorneys, accountants, consultants, and other professionals to the extent necessary to obtain their services
in connection with monitoring its investment in the Company and for the purpose of evaluating its investment in the Company; (ii)
to any prospective purchaser of any Registrable Securities from such Shareholder, if such prospective purchaser is not a competitor
to the Company (as determined in good faith by the Company’s Board of Directors) and agrees to be bound by the provisions
of this Section 4.11; (iii) to a member, partner, stockholder or wholly owned subsidiary of such Shareholder in the ordinary
course of business, provided that such Shareholder informs such Person that such information is confidential and directs such
Person to maintain the confidentiality of such information; or (iv) as may otherwise be required by law. Each Shareholder further
agrees that any notice received pursuant to this Agreement, including any notice of a proposed public offering, postponement of
an offering or other similar notice regarding the Company’s securities, is confidential information and that any trading
in securities of the Company following receipt of such information may only be done in compliance with all applicable securities
laws. Notwithstanding anything to the contrary contained in this Section 4.11, any Shareholder or any Shareholder’s partner,
member, investment manager, subsidiary or parent may identify only the Company and the value of such Shareholder’s security
holdings in the Company (and not, for the avoidance of doubt, other confidential information with respect to the Company’s
business) without prior notice to or consent from the Company and such Shareholder shall otherwise comply with the confidentiality
obligations set forth in this Section 4.11.
Section 4.12
.
Independent Nature of Shareholders' Obligations and Rights.
The obligations of each Shareholder hereunder are several and
not joint with the obligations of any other Shareholder hereunder, and no Shareholder shall be responsible in any way for the
performance of the obligations of any other Shareholder hereunder. Nothing contained herein or in any other agreement or document
delivered at any closing, and no action taken by any Shareholder pursuant hereto or thereto, shall be deemed to constitute the
Shareholders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Shareholders
are in any way acting in concert with respect to such obligations or the transactions contemplated by this Agreement. Each Shareholder
shall be entitled to protect and enforce its rights, including the rights
arising out
of this Agreement, and it shall not be necessary for any other Shareholder to be joined as an additional party in any proceeding
for such purpose.
[Signature
pages follow.]
IN WITNESS
WHEREOF, the parties hereto have duly executed this Agreement or have caused this Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
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INFLARX N.V.
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By:
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Title:
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[
Signature
page to the Registration Rights Agreement
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AND
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Address
for Notices
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Address:
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Fax
number:
Email
address:
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for Notices
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Address:
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Fax
number:
Email
address:
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Address
for Notices
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Address:
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Fax
number:
Email
address:
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Address
for Notices
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Address:
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Email
address:
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Address:
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Email
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EXHIBIT
A
JOINDER
TO REGISTRATION RIGHTS AGREEMENT
This Joinder
Agreement (this “
Joinder Agreement
”) is made as of the date written below by the undersigned (the “
Joining
Party
”) in accordance with the Registration Rights Agreement dated as of November [●], 2017 (as the same may be
amended from time to time, the “
Registration Rights Agreement
”), by and among InflaRx N.V. and the shareholders
party thereto listed on the signature pages, as well as any Permitted Transferees. Capitalized terms used, but not defined, herein
shall have the meaning ascribed to such terms in the Registration Rights Agreement.
The Joining
Party hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, the Joining Party shall be deemed
to be a party to the Registration Rights Agreement as of the date hereof as a Permitted Transferee of a Shareholder thereto, and
shall have all of the rights and obligations of a “Shareholder” thereunder as if it had executed the Registration
Rights Agreement. The Joining Party hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions
and conditions contained in the Registration Rights Agreement.
IN WITNESS
WHEREOF, the undersigned has executed this Joinder Agreement as of the date written below.
Date: ___________ ___, ______
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[NAME OF JOINING PARTY]
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[Address]
[Fax
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[Email address]
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