As filed with the Securities and Exchange Commission on November 17, 2017

Registration No. 333-        

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933

 

InflaRx N.V.

(Exact Name of Registrant as specified in its charter)

The Netherlands   N/A
(State or other jurisdiction of
incorporation or organization) 		  (I.R.S. Employer
Identification No.)
 

Winzerlaer Str. 2
07745 Jena, Germany

(+49) 3641 508180

 
(Address including zip code of Principal Executive Offices)
 

InflaRx N.V. Long-Term Incentive Plan

InflaRx Stock Option Plan 2016

InflaRx Options Issued Pursuant To The Series B Financing Arrangement

   (Full title of the plans)  
 
 

Cogency Global Inc.

10 East 40 th Street, 10 th Floor

New York, New York 10016, USA

+1 (800) 221-0102

(Name, address and telephone number, including area code, of agent for service)
 
     
 

Copies to :

 
 

Sophia Hudson

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, NY 10017

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

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

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered Amount to be Registered (1) Proposed Maximum Offering Price Per Share Proposed Maximum  Aggregate Offering Price Amount of Registration Fee (4)
Common Shares, par value €0.12 each, reserved for issuance pursuant to the InflaRx N.V. Long-Term Incentive Plan 2,341,097 $15.00 $35,116,455 (2) $4,372.00
Common Shares, par value €0.12 each, reserved for issuance with respect to options outstanding under the InflaRx Stock Option Plan 2016 1,239,252 $9.19 (3) $11,392,631 $1,418.38
Common Shares, par value €0.12 each, reserved for issuance with respect to options outstanding under the Series B financing arrangement 533,820 $0.002 (3) $1,237.39 $0.15
         
(1) This Registration Statement on Form S-8 (this “Registration Statement”) covers common shares, each with a nominal value of €0.12 per share (“Common Shares”), of InflaRx N.V. (the “Registrant”) issuable pursuant to the plans set forth in this table (collectively, the “Plans”). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional Common Shares that become issuable under the Plans by reason of any share dividend, share split or other similar transaction.

 

(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act on the basis of the average of the high and low prices reported for a Common Share on the NASDAQ Global Select Market on November 16, 2017.

 

(3) Estimated pursuant to Rule 457(h) under the Securities Act, solely for the purpose of computing the registration fee, based on the weighted average exercise price of the options and an exchange rate on November 16, 2017 of approximately €1.00 to U.S.$1.1771.

 

(4) Rounded up to the nearest penny in U.S. dollars.

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents containing the information specified in Item 1 and Item 2 of Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the U.S. Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents are incorporated herein by reference:

 

(a) The Registrant’s Registration Statement on Form F-1, Amendment No. 3, filed with the Commission on October 31, 2017 (Registration No. 333-220962), which contains the Registrant’s audited financial statements for the latest fiscal year for which such statements have been filed.

 

(b) The Registrant’s prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act, relating to the Registrant’s Registration Statement on Form F-1, as amended (Registration No. 333-220962).

 

(c) The description of the Registrant’s share capital which is contained in the Registrant’s Registration Statement Form 8-A filed with the Commission on November 7, 2017 (Registration No. 001-38283), including any amendments or supplements thereto.

 

In addition, all documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, including any Reports of Foreign Private Issuers on Form 6-K submitted during such period (or portion thereof) that is identified in such form as being incorporated by reference into this Registration Statement, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents. The Registrant is not incorporating by reference any documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed “filed” with the Commission.

 

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein, (or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein), modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

The Registrant’s current and future directors (and such other officer or employee as designated by the board of directors) have the benefit of indemnification provisions in the Registrant’s Articles of Association. These provisions give the indemnified persons the right to recover from the Registrant amounts, including but not limited to litigation expenses, and any damages they are ordered to pay, in relation to acts or omissions in the performance

 

 

 

of their duties. However, there is no entitlement to indemnification for acts or omissions which are considered to constitute malice, gross negligence, intentional recklessness and/or serious culpability attributable to such indemnified person. In addition, the Registrant has entered into agreements with the Registrant’s directors and executive officers to indemnify them against expenses and liabilities to the fullest extent permitted by law. These agreements also provide, subject to certain exceptions, for indemnification for related expenses including, among others, attorneys’ fees, judgments, penalties, fines and settlement amounts incurred by any of these individuals in any action or proceeding. In addition to such indemnification, the Registrant provides the Registrant’s directors and officers with directors’ and officers’ liability insurance.

 

Insofar as indemnification of liabilities arising under the Securities Act may be permitted to directors or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that, in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit Number

 
4.1 InflaRx N.V. Articles of Association, dated November 7, 2017 (incorporated herein by reference to Exhibit 3.2 to Post-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form F-1, filed on November 9, 2017 (Registration No. 333-220962))
4.2 Registration Right Agreement (incorporated herein by reference to Exhibit 4.2 to Post-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form F-1, filed on November 9, 2017 (Registration No. 333- 220962 ))
5 Opinion of NautaDutilh N.V., Dutch counsel of the Registrant, as to the validity of the common shares (filed herewith)
23.1 Consent of NautaDutilh N.V., Dutch counsel of the Registrant (included in Exhibit 5)
23.2 Consent of KPMG AG Wirtschaftsprüfungsgesellschaft (filed herewith)
23.3 Consent of KPMG AG Wirtschaftsprüfungsgesellschaft (filed herewith)
24 Powers of Attorney (included in the signature pages hereto)
99 InflaRx N.V. Long-Term Incentive Plan (filed herewith)

 

 

Item 9. Undertakings.

 

(a) The undersigned Registrant hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

 

(iii) To include any material information with respect to the Plans not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

 

provided , however , that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c) Insofar as indemnification of liabilities arising under the Securities Act may be permitted to directors or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that, in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this Registration Statement and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jena, Germany on this 17 th day of November, 2017.

 

  InflaRx N.V.  
     
     
  By: /s/ Niels Riedemann  
  Name: Niels Riedemann  
  Title: Chief Executive Officer  
       
     
  By: /s/ Arnd Christ  
  Name: Arnd Christ  
  Title: Chief Financial Officer  
       
       

  

 

                      Cogency Global Inc.
(Authorized Representative in the United States) 		 
     
       
  By: /s/ Colleen A. De Vries  
  Name: Colleen A. De Vries  
  Title: SVP on behalf of Cogency Global Inc.  

 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Niels Riedemann and Arnd Christ as his or her true and lawful attorneys-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the U.S. Securities and Exchange Commission, granting unto said attorneys-in-fact and agent full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitutes may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature   Title Date
       
/s/ Niels Riedemann   Chief Executive Officer and Director November 17, 2017
Niels Riedemann   (Principal Executive Officer)  
       
/s/ Arnd Christ   Chief Financial Officer November 17, 2017
Arnd Christ    (Principal Financial and Accounting Officer)  
       
/s/ Nicolas Fulpius   Chairman and Director November 17, 2017
Nicolas Fulpius      
       
/s/ Renfeng Guo   Director November 17, 2017
Renfeng Guo      
       
/s/ Katrin Uschmann   Director November 17, 2017
Katrin Uschmann      
       

/s/ Lina Ma 

  Director November 17, 2017
Lina Ma      
       

/s/ Mark Kuebler 

  Director November 17, 2017
Mark Kuebler      
       

 

Exhibit 5 and 23.1

 

 

 

ATTORNEYS • CIVIL LAW NOTARIES • TAX ADVISERS
   
   

P.O. Box 7113

1007 JC Amsterdam 

Beethovenstraat 400

1082 PR Amsterdam 

T +31 20 71 71 000

F +31 20 71 71 111

 

Amsterdam, November 17, 2017

       
InflaRx N.V.

Winzerlaer Strasse 2

07745 Jena

Germany  

 

Amsterdam

 

Brussels

 

London

 

Luxemburg

 

New York

 

Rotterdam 

Ladies and Gentlemen:

 

We have acted as legal counsel as to Netherlands law to the Company in connection with the filing of the Registration Statement with the SEC. This opinion letter is rendered to you in order to be filed with the SEC as an exhibit to the Registration Statement.

 

Capitalised terms used in this opinion letter have the meanings set forth in Exhibit A. The section headings used in this opinion letter are for convenience of reference only and are not to affect its construction or to be taken into consideration in its interpretation.

 

This opinion letter is strictly limited to the matters stated in it and may not be read as extending by implication to any matters not specifically referred to in it. Nothing in this opinion letter should be taken as expressing an opinion in respect of any representations or warranties, or other information, contained in any document.

 

In rendering the opinions expressed in this opinion letter, we have reviewed and relied upon each of the Corporate Documents and we have assumed that the Roll-Over Awards and the Plan Awards have been or shall be granted for bona fide commercial reasons. In addition, we have examined such documents and performed such other investigations as we considered necessary for the purpose of this opinion. We have not investigated or verified any factual matter disclosed to us in the course of our review.

 

This opinion letter sets out our opinion on certain matters of the laws with general applicability of the Netherlands, and, insofar as they are directly applicable in the Netherlands, of the European Union, as at today's date and as presently interpreted under published authoritative case law of the Netherlands courts, the General Court and the Court of Justice of the European Union.

 

This opinion letter, the opinions expressed therein, and any matters relating thereto are governed by and are to be construed and interpreted in accordance with Netherlands law.

 

In this opinion letter, legal concepts are expressed in English terms. The  

 

 

 

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Netherlands legal concepts concerned may not be identical in meaning to the concepts described by the English terms as they exist under the law of other jurisdictions. In the event of a conflict or inconsistency, the relevant expression shall be deemed to refer only to the Netherlands legal concepts described by the English terms.

 

For the purposes of this opinion letter, we have assumed that:

 

a. each copy of a document conforms to the original, each original is authentic, and each signature is the genuine signature of the individual purported to have placed that signature;

 

b. (i) no regulations ( reglementen ) have been adopted by any corporate body of the Company which would affect the resolutions recorded in the Resolutions, and (ii) the Current Articles are the Articles of Association as they will be in force at each Relevant Moment;

 

c. (i) all Plan Awards have been or shall be validly granted by the corporate body authorized to do so and shall be validly accepted in accordance with the terms and conditions stipulated by or pursuant to the Plan, (ii) any pre-emption rights in respect of the granting of Plan Awards have been or shall be validly excluded by the corporate body authorized to do so, and (iii) upon each issuance of Plan Shares, the relevant Plan Award to subscribe for such Plan Shares has been validly exercised in accordance with the terms and conditions applicable to such Plan Award;

 

d. all holders of Roll-Over Awards and/or Plan Awards are individuals and none of them have (i) deceased, (ii) had their respective assets placed under administration ( onder bewind gesteld ), (iii) been declared bankrupt ( failliet verklaard ), (iv) been granted a suspension of payments ( surseance van betaling verleend ), or (v) been made subject to similar proceedings in any jurisdiction or otherwise been limited in their power to dispose of their respective assets;

 

e. the authorised share capital ( maatschappelijk kapitaal ) of the Company allows for the grant of the Plan Awards and the issuance of Plan Shares pursuant to the exercise thereof. As at the date of this opinion letter, the authorised share capital ( maatschappelijk kapitaal ) of the Company is sufficient in order to issue the Plan Shares currently available for issuance under Section 4(a) of the Plan and to issue Plan Awards for such Plan Shares;

 

f. no works council ( ondernemingsraad ) has been established or is in the

 

 

 

3  

process of being established with respect to the business of the Company;

 

g. no director ( bestuurder ) of the Company has a direct or indirect personal interest which conflicts with the interest of the Company or its business in respect of any of the resolutions recorded in the Resolutions;

 

h. the statements made, and information included in, the Board Certificate is correct in all aspects;

 

i. at each Relevant Moment, each of the assumptions made in this opinion letter will be correct in all aspects by reference to the facts and circumstances then existing; and

 

j. none of the opinions stated in this opinion letter will be affected by any foreign law.

 

Based upon and subject to the foregoing and subject to the qualifications set forth in this opinion letter and to any matters, documents or events not disclosed to us, we express the following opinions:

 

Corporate Status

 

1. The Company has been duly incorporated as a besloten vennootschap met beperkte aansprakelijkheid and is existing as a naamloze vennootschap .

 

Roll-Over Shares and Plan Shares

 

2. Subject to satisfaction of the payment obligation in respect of the Roll-Over Shares as provided for in the Launch Resolution, and when issued and accepted in accordance with the Launch Resolution, the Roll-Over Shares will be validly issued, fully paid and non-assessable.

 

3. Subject to satisfaction of the payment obligation in respect of the Plan Shares as provided for in the Plan, and when issued and accepted in accordance with the Plan, the Plan Shares will be validly issued, fully paid and non-assessable.

 

The opinions expressed above are subject to the following qualifications:

 

A. The opinion expressed in paragraph ‎1 ( Corporate Status ) of this opinion letter must not be read to imply that the Company cannot be dissolved ( ontbonden ). A company such as the Company may be dissolved, inter alia by the competent court at the request of the company's board of directors, any interested party ( belanghebbende ) or the public prosecution office in certain circumstances, such as when there are certain defects in

 

 

 

4  

the incorporation of the company. Any such dissolution will not have retro-active effect.

 

B. The information contained in the Extract does not constitute conclusive evidence of the facts reflected in it.

 

C. Pursuant to Article 2:7 NCC, any transaction entered into by a legal entity may be nullified by the legal entity itself or its liquidator in bankruptcy proceedings ( curator ) if the objects of that entity were transgressed by the transaction and the other party to the transaction knew or should have known this without independent investigation ( wist of zonder eigen onderzoek moest weten ). The Netherlands Supreme Court ( Hoge Raad der Nederlanden ) has ruled that in determining whether the objects of a legal entity are transgressed, not only the description of the objects in that legal entity's articles of association ( statuten ) is decisive, but all (relevant) circumstances must be taken into account, in particular whether the interests of the legal entity were served by the transaction. Based on the objects clause contained in the Current Articles, we have no reason to believe that by granting Roll-Over Awards or Plan Awards or by issuing Roll-Over Shares or Plan Shares the Company would transgress the description of the objects contained in the Current Articles. However, we cannot assess whether there are other relevant circumstances that must be taken into account, in particular whether the interests of the Company are served by granting Roll-Over Awards or Plan Awards or by issuing Roll-Over Shares or Plan Shares since this is a matter of fact.

 

D. Pursuant to Article 2:98c NCC, a company such as the Company may grant loans ( leningen verstrekken ) only in accordance with the restrictions set out in Article 2:98c NCC, and may not provide security ( zekerheid stellen ), give a price guarantee ( koersgarantie geven ) or otherwise bind itself, whether jointly and severally or otherwise with or for third parties ( zich op andere wijze sterk maken of zich hoofdelijk of anderszins naast of voor anderen verbinden ) with a view to ( met het oog op ) the subscription or acquisition by third parties of shares in its share capital or depository receipts. This prohibition also applies to its subsidiaries ( dochtervennootschappen ). It is generally assumed that a transaction entered into in violation of Article 2:98c NCC is null and void ( nietig ).

 

E. The opinions expressed in this opinion letter may be limited or affected by:

 

a. any applicable bankruptcy, insolvency, reorganisation, moratorium or other similar laws or procedures now or hereafter

 

 

 

5  

in effect, relating to or affecting the enforcement or protection of creditors' rights generally;

 

b. the provisions of fraudulent preference and fraudulent conveyance ( Actio Pauliana ) and similar rights available in other jurisdictions to liquidators in bankruptcy proceedings or creditors;

 

c. claims based on tort ( onrechtmatige daad );

 

d. sanctions and measures, including but not limited to those concerning export control, pursuant to European Union regulations, under the Sanctions Act 1977 ( Sanctiewet 1977 ) or other legislation;

 

e. the Anti-Boycott Regulation and related legislation; and

 

f. the rules of force majeure ( niet toerekenbare tekortkoming ), reasonableness and fairness ( redelijkheid en billijkheid ), suspension ( opschorting ), dissolution ( ontbinding ), unforeseen circumstances ( onvoorziene omstandigheden ) and vitiated consent (i.e. duress ( bedreiging ), fraud ( bedrog ), abuse of circumstances ( misbruik van omstandigheden ) and error ( dwaling )) or a difference of intention ( wil ) and declaration ( verklaring ), set-off ( verrekening ), and other defences afforded by Netherlands law to obligors general.

 

F. The term "non-assessable" has no equivalent in the Dutch language and for purposes of this opinion letter such term should be interpreted to mean that a holder of a share will not by reason of merely being such a holder be subject to assessment or calls by the Company or its creditors for further payment on such share.

 

G. To the extent that Roll-Over Awards and/or Plan Awards are freely transferable, the granting thereof could constitute the offering of securities to the public in the European Economic Area, which is prohibited unless, with respect to that offering, a prospectus has been made generally available which has been approved by the Dutch Authority for the Financial Markets ( Stichting Autoriteit Financiële Markten ) or by another competent regulatory authority of another Member State of the European Economic Area.

 

 

 

6  

H. This opinion letter does not purport to express any opinion or view on the operational rules and procedures of any clearing or settlement system or agency.

 

We consent to the filing of this opinion letter as an exhibit to the Registration Statement.

 

Sincerely yours,

 

 

 

/s/ NautaDutilh N.V.

 

 

NautaDutilh N.V.

 

 

 

7  

EXHIBIT A

 

LIST OF DEFINITIONS

 

" Anti-Boycott Regulation "

 

the Council Regulation (EC) No 2271/96 of 22 November 1996 on protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom

 

" Articles of Association "

 

the articles of association of the Company, as they may read from time to time

 

" Board Certificate "

a certificate dated November 17, 2017, issued by the Board of Directors certifying on the accuracy of the following factual matters:

 

(a)           that the Company has not (i) been dissolved ( ontbonden ), (ii) ceased to exist pursuant to a merger ( fusie ) or a division ( splitsing ), (iii) been converted ( omgezet ) into another legal form, either national or foreign (except pursuant to the Deed of Conversion), (iv) had its assets placed under administration ( onder bewind gesteld ), (v) been declared bankrupt ( failliet verklaard ) or granted a suspension of payments ( surseance van betaling verleend ) or (vi) been made subject to similar proceedings in any jurisdiction or otherwise been limited in its power to dispose of its assets; and

 

(b)           that the resolutions recorded in the Launch Resolution, are in full force and effect, the factual statements made therein are complete and correct, and the Launch Resolution correctly reflects the resolutions reflected therein

 

" Board of Directors "

 

the Company's board of directors ( bestuur )

 

 

8  

" Commercial Register "

 

the Netherlands Chamber of Commerce Commercial Register

 

" Company "

 

InflaRx N.V., a naamloze vennootschap , registered with the Commercial Register under number 68904312, previously named Fireman B.V.

 

" Corporate Documents "

 

the documents listed in Exhibit B

 

" Current Articles "

the Articles of Association as they read after the execution of the Deed of Conversion, following which, according to the Extract, no amendment to the Articles of Association was effected

 

" Deed of Conversion "

the deed of conversion of the Company's legal form and amendment to the Articles of Association dated November 8, 2017

 

" Deed of Incorporation "

 

the deed of incorporation ( akte van oprichting ) of the Company, dated June 6, 2017

 

" Exhibit "

an exhibit to this opinion letter

 

" Existing Options "

 

the options for shares in the capital of InflaRx GmbH which were granted under the Stock Option Plan 2016 of InflaRx GmbH or any prior option plan or arrangements established by InflaRx GmbH pursuant to which such options were created, as described in the Launch Resolution

 

" Extract "

an extract from the Commercial Register relating to the Company, dated November 17, 2017

 

" Launch Resolution "

 

the written resolutions of the Company's general meeting dated October 30, 2017

 

" NautaDutilh "

 

NautaDutilh N.V.

 

 

 

9  

" NCC "

 

the Netherlands Civil Code ( Burgerlijk Wetboek )

 

" the Netherlands "

 

the European territory of the Kingdom of the Netherlands

 

" NFSA "

 

the Netherlands Financial Supervision Act ( Wet op het financieel toezicht )

 

" Offering "

 

the initial public offering and admission of the Shares to listing and trading on the NASDAQ Global Select Market

 

" Plan "

 

the Company's long-term equity incentive plan filed as an exhibit to the Registration Statement

 

" Plan Awards "

 

rights to subscribe for Plan Shares granted or to be granted pursuant to the terms and conditions of the Plan

 

" Plan Shares "

 

Shares available for issuance under the Plan

 

" Registration Statement "

 

the registration statement on Form S-8 under the U.S. Securities Act of 1933 filed with the SEC in connection with the Offering, in the form reviewed by us

 

" Relevant Moment "

 

each time when Roll-Over Awards or Plan Awards are granted or when Roll-Over Shares or Plan Shares are issued

 

" Resolutions "

 

the Launch Resolution and any other resolution passed by the relevant corporate body or corporate bodies of the Company in connection with the granting of Plan Awards and/or the issuance of Plan Shares (in each case including the exclusion of any pre-emption rights in connection therewith)

 

" Roll-Over Awards "

rights to subscribe for Shares, replacing the Existing Options, granted pursuant to the Launch Resolution

 

 

10  

" Roll-Over Shares "

 

Shares issuable pursuant to the exercise of Roll-Over Awards

 

" SEC "

 

the United States Securities and Exchange Commission

 

" Shares "

 

common shares in the capital of the Company, having a nominal value of EUR 0.12 each

 

 

 

11  

EXHIBIT B

LIST OF CORPORATE DOCUMENTS

 

1. the Deed of Incorporation;

 

2. the Deed of Conversion;

 

3. the Current Articles;

 

4. the Board Certificate;

 

5. the Launch Resolution;

 

6. the Extract;

 

7. the Registration Statement; and

 

8. the Plan.

 

 

 

 

Exhibit 23.2

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the use of our report dated June 23, 2017, with respect to the consolidated statements of financial position of InflaRx GmbH as of December 31, 2016 and 2015, and the related consolidated statements of comprehensive loss, changes in equity and cash flows for each of the years in the two-year period ended December 31, 2016, incorporated by reference herein.

 

/s/ KPMG AG

Wirtschaftsprüfungsgesellschaft

 

Leipzig, Germany

November 17, 2017

 

 

 

 

 

Exhibit 23.3

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the use of our report dated June 23, 2017, with respect to the statement of financial position of Fireman B.V. as of June 23, 2017, incorporated by reference herein.

 

/s/ KPMG AG

Wirtschaftsprüfungsgesellschaft

 

Leipzig, Germany

November 17, 2017

 

 

 

 

 

 

Exhibit 99

 

INFLARX N.V.

LONG-TERM INCENTIVE PLAN

 

Section 1. Purpose . The purpose of the InflaRx Long-Term Incentive Plan (the “ Plan ”) is to motivate and reward those employees, directors, consultants and advisors of InflaRx N.V. (the “ Company ”) and its Affiliates to perform at the highest level and to further the best interests of the Company and its shareholders. Capitalized terms not otherwise defined herein are defined in ‎Section 21.

 

Section 2 . Eligibility.

 

(a)  Any employee, Non-Employee Director, consultant or other advisor of the Company or any subsidiary shall be eligible to be selected to receive an Award under the Plan.

 

(b)  Holders of equity compensation awards granted by a company acquired by the Company (or whose business is acquired by the Company) or with which the Company combines are eligible for grants of Replacement Awards under the Plan.

 

Section 3 . Administration.

 

(a)  The Plan shall be administered by the Committee. The Committee shall be appointed by the Board and shall consist of not less than three directors of the Board. The Board may designate one or more directors as a subcommittee who may act for the Committee if necessary to satisfy the requirements of this Section. The Committee may issue rules and regulations for administration of the Plan.

 

(b)  Subject to the terms of the Plan and applicable law, the Committee (or its delegate) shall have full power and authority to: (i) designate Participants; (ii) determine the type or types of Awards (including Replacement Awards) to be granted to each Participant under the Plan; (iii) determine the number of Shares to be covered by (or with respect to which payments, rights or other matters are to be calculated in connection with) Awards; (iv) determine the terms and conditions of any Award; (v) determine whether, to what extent and under what circumstances Awards may be settled or exercised in cash, Shares, other Awards, other property, net settlement (including broker-assisted cashless exercise) or any combination thereof, or canceled, forfeited or suspended, and the method or methods by which Awards may be settled, exercised, canceled, forfeited or suspended; (vi) determine whether, to what extent and under what circumstances cash, Shares, other Awards, other property and other amounts payable with respect to an Award under the Plan shall be deferred either automatically or at the election of the holder thereof or of the Committee; (vii)

 

 

 

interpret and administer the Plan and any instrument or agreement relating to, or Award made under, the Plan; (viii) establish, amend, suspend or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (ix) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan.

 

(c)  All decisions of the Committee shall be final, conclusive and binding upon all parties, including the Company, its shareholders and Participants and any Beneficiaries thereof.

 

Section 4 . Shares Available for Awards.

 

(a)  Subject to adjustment as provided in ‎Section 4(c), the maximum number of Shares available for issuance under the Plan shall not exceed 2,341,097 Shares; provided that, starting on January 1, 2021, on January 1 of each year, the total number of Shares available for issuance under the Plan will be increased by an amount equal to the lesser of (i) 3% of the Company’s outstanding Shares on December 31 of the immediately preceding year or (ii) such number of Shares as determined by the Board in its discretion. Shares underlying Replacement Awards and Shares remaining available for grant under a plan of an acquired company or of a company with which the Company combines, appropriately adjusted to reflect the acquisition or combination transaction, shall not reduce the number of Shares remaining available for grant hereunder.

 

(b)  Any Shares subject to an Award or to an equity-based award granted under a prior plan of the Company (other than a Replacement Award and any Award granted out of the authorized shares of an acquired plan), that expires, is canceled, forfeited or otherwise terminates without the delivery of such Shares, including any Shares subject to such Award or award to the extent that such Award or award is settled without the issuance of Shares, shall again be, or shall become, available for issuance under the Plan. Any Shares surrendered or withheld in payment of any grant, acquisition or exercise price of such Award or award or taxes related to such Award or award shall not become available for issuance under the Plan.

 

(c)  In the event that, as a result of any dividend or other distribution (whether in the form of cash, Shares or other securities), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of Shares or other securities of the Company, issuance of warrants or other rights to acquire Shares or other securities of the Company, issuance of Shares pursuant to the anti-dilution provisions of securities of the Company, or other similar corporate transaction or event affecting the Shares, or of changes in applicable laws, regulations or accounting principles, an adjustment is necessary in order to prevent dilution or enlargement of the benefits or potential benefits intended to be

 

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made available under the Plan, then the Committee shall, subject to Section 18, adjust equitably any or all of:

 

(i)  the number and type of Shares (or other securities) which thereafter may be made the subject of Awards, including the aggregate and individual limits specified in ‎Section 4(a);

 

(ii)  the number and type of Shares (or other securities) subject to outstanding Awards; and

 

(iii)  the grant, acquisition, exercise price with respect to any Award or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Award;

 

provided, however , that the number of Shares subject to any Award denominated in Shares shall always be a whole number.

 

(d)  Any Shares delivered pursuant to an Award may consist, in whole or in part, of authorized and unissued Shares or Shares acquired by the Company.

 

Section 5 . Options. The Committee is authorized to grant Options to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine.

 

(a)  The exercise price per Share under an Option shall be determined by the Committee; provided , however , that, except in the case of Replacement Awards, such exercise price shall not be less than the Fair Market Value of a Share on the date of grant of such Option.

 

(b)  The term of each Option shall be fixed by the Committee but shall not exceed 10 years from the date of grant of such Option.

 

(c)  The Committee shall determine the time or times at which an Option may be exercised in whole or in part.

 

(d)  The Committee shall determine the methods by which, and the forms in which payment of the exercise price with respect thereto may be made or deemed to have been made, including cash, Shares, other Awards, other property, net settlement (including broker-assisted cashless exercise) or any combination thereof, having a Fair Market Value on the exercise date equal to the relevant exercise price.

 

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Section 6 . Stock Appreciation Rights. The Committee is authorized to grant SARs to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine.

 

(a)  SARs may be granted under the Plan to Participants either alone (“freestanding”) or in addition to other Awards granted under the Plan (“tandem”).

 

(b)  The exercise price per Share under a SAR shall be determined by the Committee; provided, however , that, except in the case of Replacement Awards, such exercise price shall not be less than the Fair Market Value of a Share on the date of grant of such SAR (or if granted in connection with an Option, on the grant date of such Option).

 

(c)  The term of each SAR shall be fixed by the Committee but shall not exceed 10 years from the date of grant of such SAR.

 

(d)  The Committee shall determine the time or times at which a SAR may be exercised or settled in whole or in part.

 

(e)  Upon the exercise of a SAR, the Company shall pay to the Participant an amount equal to the number of Shares subject to the SAR multiplied by the excess, if any, of the Fair Market Value of one Share on the exercise date over the exercise price of such SAR. The Company shall pay such excess in cash, in Shares valued at Fair Market Value, or any combination thereof, as determined by the Committee.

 

Section 7. Restricted Stock and RSUs. The Committee is authorized to grant Awards of Restricted Stock and RSUs to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine.

 

(a)  The applicable Award Document shall specify the vesting schedule and, with respect to RSUs, the delivery schedule (which may include deferred delivery later than the vesting date) and whether the Award of Restricted Stock or RSUs is entitled to dividends or dividend equivalents, voting rights or any other rights.

 

(b)  Shares of Restricted Stock and RSUs shall be subject to such restrictions as the Committee may impose (including any limitation on the right to vote a Share of Restricted Stock or the right to receive any dividend, dividend equivalent or other right), which restrictions may lapse separately or in combination at such time or times, in such installments or otherwise, as the Committee may deem appropriate. Without limiting the generality of the foregoing, if the Award relates to Shares on which dividends are declared during the period that the Award is outstanding, the Award shall not provide for the payment of such dividend (or a dividend equivalent) to the Participant prior to the

 

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time at which such Award, or applicable portion thereof, becomes nonforfeitable, unless otherwise provided in the applicable Award Document.

 

(c)  Any share of Restricted Stock granted under the Plan may be evidenced in such manner as the Committee may deem appropriate, including book-entry registration or issuance of a stock certificate or certificates. In the event that any stock certificate is issued in respect of shares of Restricted Stock granted under the Plan, such certificate shall be registered in the name of the Participant and shall bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Restricted Stock.

 

(d)  The Committee may determine the form or forms (including cash, Shares, other Awards, other property or any combination thereof) in which payment of the amount owing upon settlement of any RSU Award may be made.

 

Section 8. Performance Awards. The Committee is authorized to grant Performance Awards to Participants with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine.

 

(a)  Performance Awards may be denominated as a cash amount, a number of Shares or a combination thereof and are Awards which may be earned upon achievement or satisfaction of performance conditions specified by the Committee. In addition, the Committee may specify that any other Award shall constitute a Performance Award by conditioning the right of a Participant to exercise the Award or have it settled, and the timing thereof, upon achievement or satisfaction of such performance conditions as may be specified by the Committee. The Committee may use such business criteria and other measures of performance as it may deem appropriate in establishing any performance conditions. Subject to the terms of the Plan, the performance goals to be achieved during any Performance Period, the length of any Performance Period, the amount of any Performance Award granted and the amount of any payment or transfer to be made pursuant to any Performance Award shall be determined by the Committee. If the Performance Award relates to Shares on which dividends are declared during the Performance Period, the Performance Award shall not provide for the payment of such dividend (or dividend equivalent) to the Participant prior to the time at which such Performance Award, or the applicable portion thereof, is earned.

 

(b)  Performance criteria may be measured on an absolute ( e.g. , plan or budget) or relative basis, and may be established on a corporate-wide basis or with respect to one or more business units, divisions, subsidiaries or business segments. Relative performance may be measured against a group of peer companies, a financial market index or other acceptable objective and quantifiable indices. If the Committee determines that a change in the business, operations, corporate structure or capital structure of the Company, or the manner in which

 

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the Company conducts its business, or other events or circumstances render the performance objectives unsuitable, the Committee may modify the minimum acceptable level of achievement, in whole or in part, as the Committee deems appropriate and equitable. Performance objectives shall be adjusted for material items not originally contemplated in establishing the performance target for items resulting from discontinued operations, extraordinary gains and losses, the effect of changes in accounting standards or principles, acquisitions or divestitures, changes in tax rules or regulations, capital transactions, restructuring, nonrecurring gains or losses or unusual items. Performance measures may vary from Performance Award to Performance Award, and from Participant to Participant, and may be established on a stand-alone basis, in tandem or in the alternative. The Committee shall have the power to impose such other restrictions on Awards subject to this ‎Section 8(b) as it may deem necessary or appropriate to ensure that such Awards satisfy all requirements of any applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations.

 

(c)   Settlement of Performance Awards; Other Terms. Settlement of Performance Awards shall be in cash, Shares, other Awards, other property, net settlement or any combination thereof, as determined in the discretion of the Committee. Performance Awards will be settled only after the end of the relevant Performance Period. The Committee may, in its discretion, increase or reduce the amount of a settlement otherwise to be made in connection with a Performance Award.

 

Section 9 . Other Share-Based Awards. The Committee is authorized, subject to limitations under applicable law, to grant to Participants such other Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Shares or factors that may influence the value of Shares, including convertible or exchangeable debt securities, other rights convertible or exchangeable into Shares, acquisition rights for Shares, Awards with value and payment contingent upon performance of the Company or business units thereof or any other factors designated by the Committee. The Committee shall determine the terms and conditions of such Awards.

 

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Section 10 . Minimum Vesting. Notwithstanding any provisions of this Plan to the contrary and except as provided in this ‎ Section 10 or pursuant to ‎ Section 11, Awards (other than Replacement Awards) shall not vest in full prior to the one-year anniversary of the applicable grant date; provided, however , that no more than five percent (5%) of the Shares available for issuance under the Plan may be granted subject to Awards with such other vesting requirements, if any, as the Committee may establish in its sole discretion (which number of Shares shall not include any Shares subject to Awards granted pursuant to ‎ Section 8).

 

Section 11 . Effect of Termination of Service or a Change in Control on Awards.

 

(a)  The Committee may provide, by rule or regulation or in any Award Document, or may determine in any individual case, the circumstances in which, and the extent to which, an Award may be exercised, settled, vested, paid or forfeited in the event of a Participant’s Termination of Service prior to the vesting, exercise or settlement of such Award or the end of a Performance Period.

 

(b)  In the event of a Change in Control, outstanding Awards shall be treated as described below.

 

(i) If in connection with the Change in Control, any outstanding Award is continued in effect or converted into an award or right with respect to stock of the successor or surviving corporation (or a parent or subsidiary thereof) (in the case of Options and SARs awarded to a Participant to whom Section 18 applies, in a manner that complies with Sections 424 and 409A of the Code), then upon the occurrence of a Termination of Service of a Participant by the Company without Cause or a Termination of Service by such Participant for Good Reason within 24 months following the Change in Control, on the date of such Termination of Service, such Award held by such Participant shall immediately vest and settle, and with respect to Options and SARs, shall become exercisable and shall remain exercisable for one year.

 

(ii)  If outstanding Awards are not continued or converted as described in subsection (i) above, then on the Change in Control, such Awards shall immediately vest and settle and, in the case of Options and SARs, shall become fully exercisable.

 

For purposes of subsections (i) and (ii) above, no Option, SAR, Restricted Stock or RSU shall be treated as “continued or converted” on a basis consistent with the requirements of subsection (i) or (ii), as applicable, unless the stock underlying such award after such continuation or conversion consists of securities of a class that is widely held and publicly traded on a U.S. national securities exchange.

 

(c)  In addition, in the event of a Change in Control and to the

 

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extent not inconsistent with the provisions of ‎Section 11(a) above or the applicable Award Document, the Committee, in its sole discretion, and on such terms and conditions as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such Change in Control, may take any one or more of the following actions whenever the Committee determines that such action is appropriate or desirable in order to prevent the dilution or enlargement of the benefits intended to be made available under the Plan or to facilitate the Change in Control transaction:

 

(i)  to terminate or cancel any outstanding Award in exchange for a cash payment (and, for the avoidance of doubt, if as of the date of the Change in Control, the Committee determines that no amount would have been realized upon the exercise of the Award or other realization of the Participant’s rights, then the Award may be cancelled by the Company without payment of consideration);

 

(ii)  to provide for the assumption, substitution, replacement or continuation of any Award by the successor or surviving corporation (or a parent or subsidiary thereof) with cash, securities, rights or other property to be paid or issued, as the case may be, by the successor or surviving corporation (or a parent or subsidiary thereof), and to provide for appropriate adjustments with respect to the number and type of securities (or other consideration) of the successor or surviving corporation (or a parent or subsidiary thereof), subject to any replacement awards, the terms and conditions of the replacement awards (including, without limitation, any applicable performance targets or criteria with respect thereto) and the grant, exercise or purchase price per share for the replacement awards;

 

(iii)  to make any other adjustments in the number and type of securities (or other consideration) subject to outstanding Awards and in the terms and conditions of outstanding Awards (including the grant or exercise price and performance criteria with respect thereto) and Awards that may be granted in the future;

 

(iv)  to provide that any Award shall be accelerated and become exercisable, payable and/or fully vested with respect to all Shares covered thereby, notwithstanding anything to the contrary in the Plan or the applicable Award Document; and

 

(v)  to provide that any Award shall not vest, be exercised or become payable as a result of such event.

 

Section 12 . General Provisions Applicable to Awards.

 

(a)  Awards shall be granted for no cash consideration or for such minimal cash consideration as may be required by applicable law.

 

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(b)  Awards may, in the discretion of the Committee, be granted either alone or in addition to or in tandem with any other Award or any award granted under any other plan of the Company. Awards granted in addition to or in tandem with other Awards, or in addition to or in tandem with awards granted under any other plan of the Company, may be granted either at the same time as or at a different time from the grant of such other Awards or awards.

 

(c)  Subject to the terms of the Plan and Section 18, payments or transfers to be made by the Company upon the grant, exercise or settlement of an Award may be made in the form of cash, Shares, other Awards, other property, net settlement or any combination thereof, as determined by the Committee in its discretion, and may be made in a single payment or transfer, in installments or on a deferred basis, in each case in accordance with rules and procedures established by the Committee. Such rules and procedures may include provisions for the payment or crediting of reasonable interest on installment or deferred payments or the grant or crediting of dividend equivalents in respect of installment or deferred payments.

 

(d)  Except as may be permitted by the Committee or as specifically provided in an Award Document, (i) no Award and no right under any Award shall be assignable, alienable, saleable or transferable by a Participant otherwise than by will or pursuant to ‎Section 12(e) and (ii) during a Participant’s lifetime, each Award, and each right under any Award, shall be exercisable only by the Participant or, if permissible under applicable law, by the Participant’s guardian or legal representative. The provisions of this ‎Section 12(d) shall not apply to any Award that has been fully exercised or settled, as the case may be, and shall not preclude forfeiture of an Award in accordance with the terms thereof.

 

(e)  A Participant may designate a Beneficiary or change a previous Beneficiary designation at such times prescribed by the Committee by using forms and following procedures approved or accepted by the Committee for that purpose.

 

(f)  All certificates for Shares and/or other securities delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations and other requirements of the Securities and Exchange Commission, any stock market or exchange upon which such Shares or other securities are then quoted, traded or listed, and any applicable securities laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.

 

(g)  Without limiting the generality of ‎Section 12(h), the Committee may impose restrictions on any Award with respect to noncompetition, confidentiality and other restrictive covenants, or requirements to

 

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comply with minimum stock ownership requirements, as it deems necessary or appropriate in its sole discretion.

 

(h)  The Committee may specify in an Award Document that the Participant’s rights, payments and benefits with respect to an Award shall be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain specified events, in addition to any otherwise applicable vesting or performance conditions of an Award. Such events may include a Termination of Service with or without Cause (and, in the case of any Cause that is resulting from an indictment or other non-final determination, the Committee may provide for such Award to be held in escrow or abeyance until a final resolution of the matters related to such event occurs, at which time the Award shall either be reduced, cancelled or forfeited (as provided in such Award Document) or remain in effect, depending on the outcome), violation of material policies, breach of noncompetition, confidentiality or other restrictive covenants that may apply to the Participant, or other conduct by the Participant that is detrimental to the business or reputation of the Company and/or its Affiliates.

 

(i)  Rights, payments and benefits under any Award shall be subject to repayment to or recoupment (“clawback”) by the Company in accordance with such policies and procedures as the Committee or Board may adopt from time to time, including policies and procedures to implement applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations.

 

Section 13 . Amendments and Termination.

 

(a)  Except to the extent prohibited by applicable law and unless otherwise expressly provided in an Award Document or in the Plan, the Board may amend, alter, suspend, discontinue or terminate the Plan or any portion thereof at any time; provided, however , that no such amendment, alteration, suspension, discontinuation or termination shall be made without (i) shareholder approval, if such approval is required by applicable law or the rules of the stock market or exchange, if any, on which the Shares are principally quoted or traded or (ii) the consent of the affected Participant, if such action would materially adversely affect the rights of such Participant under any outstanding Award, except to the extent any such amendment, alteration, suspension, discontinuance or termination is made to cause the Plan to comply with applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations, or to impose any recoupment provisions on any Awards in accordance with ‎Section 12(i). Notwithstanding anything to the contrary in the Plan, the Committee may amend the Plan in such manner as may be necessary to enable the Plan to achieve its stated purposes in any jurisdiction in a tax-efficient manner and in compliance with local laws, rules and regulations.

 

(b)  The Committee may waive any conditions or rights under, amend any terms of, or amend, alter, suspend, discontinue or terminate any

 

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Award theretofore granted, prospectively or retroactively, without the consent of any relevant Participant or holder or Beneficiary of an Award; provided, however , that, subject to ‎Section 4(c) and Section 11(c), no such action shall materially adversely affect the rights of any affected Participant or holder or Beneficiary under any Award theretofore granted under the Plan, except to the extent any such action is made to cause the Plan to comply with applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations, or to impose any recoupment provisions on any Awards in accordance with ‎Section 12(i); provided further that, except as provided in ‎Section 4(c), the Committee shall not without the approval of the Company’s shareholders (a) lower the exercise price per Share of an Option or SAR after it is granted or take any other action that would be treated as a repricing of such Award under the rules of the principal stock market or exchange on which the Company’s Shares are quoted or traded, or (b) cancel an Option or SAR when the exercise price per Share exceeds the Fair Market Value in exchange for cash or another Award (other than in connection with a Change in Control).

 

(c)  Except as provided in ‎Section 8(b), the Committee shall be authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of events (including the events described in ‎Section 4(c)) affecting the Company, or the financial statements of the Company, or of changes in applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations, whenever the Committee determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan.

 

(d)  The Committee may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent it shall deem desirable to carry the Plan into effect.

 

Section 14. Prohibition on Option and SAR Repricing. Except as provided in ‎Section 4(c), the Committee may not, without prior approval of the Company’s shareholders, seek to effect any re-pricing of any previously granted “underwater” Option or SAR by: (i) amending or modifying the terms of the Option or SAR to lower the exercise price; (ii) cancelling the underwater Option or SAR and granting either (A) replacement Options or SARs having a lower exercise price or (B) Restricted Stock, RSU, Performance Award or Other Stock-Based Award in exchange; or (iii) cancelling or repurchasing the underwater Options or SARs for cash or other securities. An Option or SAR will be deemed to be “underwater” at any time when the Fair Market Value of the Shares covered by such Award is less than the exercise price of the Award.

 

Section 15 . Miscellaneous.

 

(a)  No employee, Participant or other person shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of employees, Participants or holders or Beneficiaries of

 

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Awards under the Plan. The terms and conditions of Awards need not be the same with respect to each recipient. Any Award granted under the Plan shall be a one-time Award that does not constitute a promise of future grants. The Company, in its sole discretion, maintains the right to make available future grants under the Plan.

 

(b)  The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of, or to continue to provide services to, the Company or any Affiliate. Further, the Company or the applicable Affiliate may at any time dismiss a Participant, free from any liability, or any claim under the Plan, unless otherwise expressly provided in the Plan or in any Award Document or in any other agreement binding the parties. The receipt of any Award under the Plan is not intended to confer any rights on the receiving Participant except as set forth in the applicable Award Document.

 

(c)  Nothing contained in the Plan shall prevent the Company from adopting or continuing in effect other or additional compensation arrangements, and such arrangements may be either generally applicable or applicable only in specific cases.

 

(d)  The Company shall be authorized to withhold from any Award granted or any payment due or transfer made under any Award or under the Plan or from any compensation or other amount owing to a Participant the amount (in cash, Shares, other Awards, other property, net settlement or any combination thereof) of applicable withholding taxes due in respect of an Award, its exercise or settlement or any payment or transfer under such Award or under the Plan and to take such other action (including providing for elective payment of such amounts in cash or Shares by the Participant) as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes.

 

(e)  If any provision of the Plan or any Award Document is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction, or as to any person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award Document, such provision shall be stricken as to such jurisdiction, person or Award, and the remainder of the Plan and any such Award Document shall remain in full force and effect.

 

(f)  Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and a Participant or any other person. To the extent that any person acquires a right to receive payments from the Company pursuant to an Award, such right shall be no greater than the right of any unsecured general creditor of the Company.

 

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(g)  No fractional Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash or other securities shall be paid or transferred in lieu of any fractional Shares, or whether such fractional Shares or any rights thereto shall be canceled, terminated or otherwise eliminated.

 

(h)  Awards may be granted to Participants who are non-Dutch nationals or employed or providing services outside the Netherlands, or both, on such terms and conditions different from those applicable to Awards to Participants who are employed or providing services in the Netherlands as may, in the judgment of the Committee, be necessary or desirable to recognize differences in local law, tax policy or custom. The Committee also may impose conditions on the exercise or vesting of Awards in order to minimize the Company’s obligation with respect to tax equalization for Participants on assignments outside their home country.

 

Section 16 . Effective Date of the Plan. The Plan is effective as of November 10, 2017.

 

Section 17 . Term of the Plan. No Award shall be granted under the Plan after the earliest to occur of (i) November 10, 2027; provided that to the extent permitted by the listing rules of any stock exchanges on which the Company is listed, such November 10, 2027 term may be extended indefinitely so long as the maximum number of Shares available for issuance under the Plan have not been issued, (ii) the maximum number of Shares available for issuance under the Plan have been issued or (iii) the Board terminates the Plan in accordance with ‎Section 13(a). However, unless otherwise expressly provided in the Plan or in an applicable Award Document, any Award theretofore granted may extend beyond such date, and the authority of the Committee to amend, alter, adjust, suspend, discontinue or terminate any such Award, or to waive any conditions or rights under any such Award, and the authority of the Board to amend the Plan, shall extend beyond such date.

 

Section 18. Section 409A of the Code. With respect to Awards subject to Section 409A of the Code, the Plan is intended to comply with the requirements of Section 409A of the Code, and the provisions of the Plan and any Award Document shall be interpreted in a manner that satisfies the requirements of Section 409A of the Code, and the Plan shall be operated accordingly. If any provision of the Plan or any term or condition of any Award would otherwise frustrate or conflict with this intent, the provision, term or condition will be interpreted and deemed amended so as to avoid this conflict. If an amount payable under an Award as a result of the Participant’s Termination of Service (other than due to death) occurring while the Participant is a “specified employee” under Section 409A of the Code constitutes a deferral of compensation subject to Section 409A of the Code, then payment of such amount shall not occur until six months and one day after the date of the Participant’s Termination of Service, except as permitted under Section 409A of the Code. If the Award includes a

 

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“series of installment payments” (within the meaning of Section 1.409A-2(b)(2)(iii) of the Treasury Regulations), the Participant’s right to the series of installment payments shall be treated as a right to a series of separate payments and not as a right to a single payment, and if the Award includes “dividend equivalents” (within the meaning of Section 1.409A-3(e) of the Treasury Regulations), the Participant’s right to the dividend equivalents shall be treated separately from the right to other amounts under the Award. Notwithstanding the foregoing, the tax treatment of the benefits provided under the Plan or any Award Document is not warranted or guaranteed, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A of the Code.

 

Section 19. Data Protection. By participating in the Plan, the Participant consents to the holding and processing of personal information provided by the Participant to the Company or any Affiliate, trustee or third party service provider, for all purposes relating to the operation of the Plan. These include, but are not limited to:

 

(i)  administering and maintaining Participant records;

 

(ii)  providing information to the Company, Affiliates, trustees of any employee benefit trust, registrars, brokers or third party administrators of the Plan;

 

(iii)  providing information to future purchasers or merger partners of the Company or any Affiliate, or the business in which the Participant works; and

 

(iv)  transferring information about the Participant to any country or territory that may not provide the same protection for the information as the Participant’s home country.

 

Section 20 . Governing Law. The Plan and each Award Document shall be governed by the laws of the Netherlands. The Company, its Affiliates and each Participant (by acceptance of an Award) irrevocably submit, in respect of any suit, action or proceeding related to the implementation or enforcement of the Plan, to the exclusive jurisdiction of the competent courts in Amsterdam, the Netherlands.

 

Section 21. Definitions . As used in the Plan, the following terms shall have the meanings set forth below:

 

(a)  “ Affiliate ” means (i) any entity that, directly or indirectly, is controlled by the Company, (ii) any entity in which the Company, directly or indirectly, has a significant equity interest, in each case as determined by the Committee and (iii) any other entity which the Committee determines should be treated as an “Affiliate.”

 

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(b)  “ Award ” means any Option, SAR, Restricted Stock, RSU, Performance Award or Other Stock-Based Award granted under the Plan.

 

(c)  “ Award Document ” means any agreement, contract or other instrument or document, which may be in electronic format, evidencing any Award granted under the Plan, which may, but need not, be executed or acknowledged by a Participant.

 

(d)  “ Beneficiary ” means a person entitled to receive payments or other benefits or exercise rights that are available under the Plan in the event of the Participant’s death. If no such person is named by a Participant, or if no Beneficiary designated by the Participant is eligible to receive payments or other benefits or exercise rights that are available under the Plan at the Participant’s death, such Participant’s Beneficiary shall be such Participant’s estate.

 

(e)  “ Board ” means the board of directors of the Company.

 

(f)  “ Cause ” means, with respect to any Participant, “cause” as defined in such Participant’s employment agreement with the Company, if any, or if not so defined, except as otherwise provided in such Participant’s Award Document, such Participant’s:

 

(i)  indictment for any crime (A) constituting a felony (in Dutch: misdrijf ), or (B) that has, or could reasonably be expected to result in, an adverse impact on the performance of a Participant’s duties to the Company or any of its subsidiaries, or otherwise has, or could reasonably be expected to result in, an adverse impact to the business or reputation of the Company or any of its subsidiaries;

 

(ii) having been the subject of any order, judicial or administrative, obtained or issued by the Securities and Exchange Commission for any securities violation involving fraud, including, for example, any such order consented to by the Participant in which findings of facts or any legal conclusions establishing liability are neither admitted nor denied;

 

conduct, in connection with his or her employment or service, which is not taken in good faith and has, or could reasonably be expected to result in, material injury to the business or reputation of the Company or any of its subsidiaries;

 

(iii)  willful violation of the Company’s code of conduct or other material policies set forth in the manuals or statements of policy of the Company or any of its subsidiaries;

 

(iv)  willful neglect in the performance of a Participant’s duties for the Company or any of its subsidiaries or willful or repeated failure or refusal to perform such duties;

 

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(v)  material breach of any applicable employment agreement or other agreement with the Company; or

 

(vi)  conduct, in connection with his or her employment or service, which should be considered as an urgent cause within the meaning of Section 7:678 of the Dutch Civil Code.

 

The occurrence of any such event described in clauses (ii) through (v) that is susceptible to cure or remedy shall not constitute Cause if such Participant cures or remedies such event within 30 (thirty) days after the Company provides notice to such Participant.

 

(g)  “Change in Control” means the occurrence of any one or more of the following events:

 

(i)  a direct or indirect change in ownership or control of the Company effected through one transaction or a series of related transactions within a 12-month period, whereby any Person other than the Company, directly or indirectly acquires or maintains beneficial ownership of securities of the Company constituting more than 50% of the total combined voting power of the Company’s equity securities outstanding immediately after such acquisition;

 

(ii)  at any time during a period of 12 consecutive months, individuals who at the beginning of such period constituted the Board cease for any reason to constitute a majority of members of the Board; provided, however, that any new member of the Board whose election or nomination for election was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was so approved, shall be considered as though such individual were a member of the Board at the beginning of the period, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

 

(iii)  the consummation of a merger or consolidation of the Company or any of its subsidiaries with any other corporation or entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or being converted into voting securities of the surviving entity or, if applicable, the ultimate parent thereof) at least 50% of the combined voting power and total fair market value of the securities of the Company or such surviving entity or parent outstanding immediately after such merger or consolidation; or

 

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(iv)  the consummation of any sale, lease, exchange or other transfer to any Person (other than an Affiliate of the Company), in one transaction or a series of related transactions within a 12-month period, of all or substantially all of the assets of the Company and its subsidiaries.

 

Notwithstanding the foregoing or any provision of any Award Document to the contrary, for any Award to which Section 18 applies that provides for accelerated distribution on a Change in Control of amounts that constitute “deferred compensation” (as defined in Section 409A of the Code), if the event that constitutes such Change in Control does not also constitute a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the Company’s assets (in either case, as defined in Section 409A of the Code), such amount shall not be distributed on such Change in Control but instead shall vest as of the date of such Change in Control and shall be paid on the scheduled payment date specified in the applicable Award Document, except to the extent that earlier distribution would not result in the Participant who holds such Award incurring any additional tax, penalty, interest or other expense under Section 409A of the Code.

 

(a)   “ Code ” means the United States Internal Revenue Code of 1986, as amended from time to time, and the rules, regulations and guidance thereunder. Any reference to a provision in the Code shall include any successor provision thereto.

 

(b)  “ Committee ” means the Compensation Committee of the Board or such other committee as may be designated by the Board; provided that, with respect to any Award granted to any Non-Employee Director, the “Committee” means the Nomination and Corporate Governance Committee of the Board or such other committee as may be designated by the Board. If the Board does not designate the Committee, references herein to the “Committee” shall refer to the Board.

 

(c)  “ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended from time to time, and the rules, regulations and guidance thereunder. Any reference to a provision in the Exchange Act shall include any successor provision thereto.

 

(d)  “ Fair Market Value ” means (i) with respect to a Share, the closing price of a Share on the date in question (or, if there is no reported sale on such date, on the last preceding date on which any reported sale occurred) on the principal stock market or exchange on which the Shares are quoted or traded, or if Shares are not so quoted or traded, the fair market value of a Share as determined by the Committee, and (ii) with respect to any property other than Shares, the fair market value of such property determined by such methods or procedures as shall be established from time to time by the Committee.

 

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(e)  “ Good Reason ” means, with respect to any Participant, “good reason” as defined in such Participant’s employment agreement with the Company, if any, or if not so defined, except as otherwise provided in such Participant’s Award Document, the occurrence of any one or more of the following events:

 

(i)  a material diminution in the Participant’s base salary; or

 

(ii)  a relocation of the Participant’s principal place of employment more than fifty (50) miles from its location;

 

in each case, without the Participant’s consent. A Participant must provide notice to the Company of the existence of any one or more of the conditions described in (i) through (ii) above within sixty (60) days of the initial existence of the condition, upon the notice of which the Company will have a period of thirty (30) days during which it may remedy the condition before the condition gives rise to Good Reason.

 

(f)  “ Non-Employee Director ” means a member of the Board who is not an employee of the Company or an Affiliate.

 

(g)   “ Option ” means an option representing the right to acquire Shares from the Company, granted in accordance with the provisions of Section 5.

 

(h)  “ Other Stock-Based Award ” means an Award granted in accordance with the provisions of ‎Section 9.

 

(i)  “ Participant ” means the recipient of an Award granted under the Plan.

 

(j)  “ Performance Award ” means an Award granted in accordance with the provisions of ‎Section 8.

 

(k)  “ Performance Period ” means the period established by the Committee at the time any Performance Award is granted or at any time thereafter during which any performance goals specified by the Committee with respect to such Award are measured.

 

(l)  '' Person '' means a natural person or a partnership, company, association, cooperative, mutual insurance society, foundation or any other body which operates externally as an independent unit or organisation.

 

(m)  “ Replacement Award ” means an Award granted in assumption of, or in substitution for, an outstanding award previously granted by a company or business acquired by the Company or with which the Company, directly or indirectly, combines.

 

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(n)  “ Restricted Stock ” means any Share granted in accordance with the provisions of ‎Section 7.

 

(o)  “ RSU ” means a contractual right granted in accordance with the provisions of ‎Section 7 that is denominated in Shares. Each RSU represents a right to receive the value of one Share. Awards of RSUs may include the right to receive dividend equivalents.

 

(p)  “ SAR ” means any right granted in accordance with the provisions of ‎Section 6 to receive upon exercise by a Participant or settlement the excess of (i) the Fair Market Value of one Share on the date of exercise or settlement over (ii) the exercise price of the right on the date of grant, or if granted in connection with an Option, on the date of grant of the Option.

 

(q)  “ Shares ” means common shares of the Company.

 

(r)  “ Termination of Service ” means:

 

(i)  in the case of a Participant who is an employee of the Company or an Affiliate, cessation of the employment relationship such that the Participant is no longer an employee of the Company or Subsidiary;

 

(ii)  in the case of a Participant who is a Non-Employee Director, the date that the Participant ceases to be a member of the Board for any reason; or

 

(iii) in the case of a Participant who is a consultant or other advisor, the effective date of the cessation of the performance of services for the Company or an Subsidiary;

 

provided, however , that in the case of an employee, the transfer of employment from the Company to an Affiliate, from an Affiliate to the Company, from one Affiliate to another Affiliate or, unless the Committee determines otherwise, the cessation of employee status but the continuation of the performance of services for the Company or an Affiliate as a member of the Board or a consultant or other advisor shall not be deemed a cessation of service that would constitute a Termination of Service; and provided further , that a Termination of Service will be deemed to occur for a Participant employed by an Affiliate when an Affiliate ceases to be an Affiliate, unless such Participant’s employment continues with the Company or another Affiliate.

 

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