As filed with the U.S. Securities and Exchange Commission on June 1, 2018

Registration No. 333-          

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM S-8

 

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 


 

ARGENX SE

(Exact name of registrant as specified in its charter)

 


 

The Netherlands

 

Not applicable

(State or other jurisdiction of
incorporation or organization)

 

(I.R.S. Employer
Identification Number)

 

Willemstraat 5

4811 AH, Breda, the Netherlands

Tel. No.: +31 763 030 488
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

argenx Employee Stock Option Plan
(Full title of the plan)

 

C T Corporation System
111 Eighth Avenue
New York, New York 10011
Tel. No. +1 (212) 894-8940
(Name, address, including zip code, and telephone number, including area code, of agent for service)

 


 

Copies to:

 

Michael H. Bison

Edwin M. O’Connor
Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
(617) 570-1000

 

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

 

Large accelerated filer

x

Accelerated filer

o

 

 

 

 

Non-accelerated filer

o (Do not check if a smaller reporting company)

Smaller reporting company

o

 

 

 

 

 

 

Emerging Growth Company

x

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. x

 


 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

 

 

 

Title of Securities
to be Registered(1)

 

Amount to be
Registered (2)

 

Proposed
Maximum
Offering Price
per Share (3)

 

Proposed
Maximum
Aggregate
Offering Price (3)

 

Amount of
Registration
Fee

 

Ordinary Shares, nominal value of €0.10 per share

 

5,501,432

 

$

14.06

 

$

77,350,134

 

$

9,631

 

 

(1)                                  These shares may be represented by the Registrant’s American Depositary Shares, or ADSs. Each ADS represents one Ordinary Share. ADSs issuable upon deposit of the Ordinary Shares registered hereby were registered pursuant to a separate Registration Statement on Form F-6 (File No. 333-217747).

 

(2)                                  Pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement shall also cover such indeterminate number of additional shares as may become issuable under the plan in connection with variations in share capital, demergers, special dividends or distributions or similar transactions.

 

(3)                                  Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) promulgated under the Securities Act. The offering price per share and the aggregate offering price are based upon $14.06, which is the weighted average exercise price per share of the outstanding stock options granted pursuant to the argenx Employee Stock Option Plan of €12.07, converted from euros to U.S. dollars at an exchange rate of $1.1644 per euro, the Euro Foreign Exchange Reference rate of the European Central Bank for the euro on May 28, 2018.

 

 

 



 

PART I.

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The information specified in Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of this Registration Statement. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.

 

PART II.

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

ITEM 3.                 INCORPORATION OF DOCUMENTS BY REFERENCE

 

The following documents filed by argenx SE (the “ Registrant ”) with the U.S. Securities and Exchange Commission (the “ Commission ”) are incorporated by reference into this Registration Statement:

 

(a)            The Registrant’s Annual Report on Form 20-F for the year ended December 31, 2017, filed with the Commission on March 26, 2018 (File No. 001-38097), which contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed;

 

(b)            The Registrant’s reports on Form 6-K furnished to the Commission on March 1, 2018 (portions thereof); March 16, 2018 (portions thereof); March 22, 2018 (portions thereof); March 26, 2018 (portions thereof); April 9, 2018 (portions thereof); April 24, 2018 (portions thereof); and May 9, 2018 (portions thereof); and

 

(c)            The description of the Registrant’s Ordinary Shares and American Depositary Shares contained in the Registrant’s Registration Statement on Form 8-A filed with the Commission under Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act ”) on May 16, 2017 (File No. 001-38097), including any amendment or report filed for the purpose of updating such description.

 

All other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and 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, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. Any report on Form 6-K furnished by the Registrant to the Commission after the date of this Registration Statement (or a portion thereof) is incorporated by reference in this Registration Statement only to the extent that the report expressly states that the Registrant incorporates it (or such portions) by reference in this Registration Statement and it is not subsequently superseded. 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 subsequently filed document that also is 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.

 

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ITEM 6.                 INDEMNIFICATION OF DIRECTORS AND OFFICERS

 

Under Dutch law, the Registrant’s board of directors and certain other officers may be held liable for damages in the event of improper or negligent performance of their duties. They may be held jointly and severally liable for damages to the Registrant and to third parties for infringement of the Articles of Association or of certain provisions of the Dutch Civil Code. In certain circumstances, they may also incur additional specific civil and criminal liabilities. Directors and certain other officers are insured under an insurance policy taken out by the Registrant against damages resulting from their conduct when acting in the capacities as such directors or officers. In addition, the Registrant’s Articles of Association provide for indemnification of our directors, including reimbursement for reasonable legal fees and damages or fines based on acts or failures to act in their duties. No indemnification shall be given to a member of the Registrant’s board of directors if a Dutch court has established, without possibility for appeal, that the acts or omissions of such indemnified person that led to the financial losses, damages, suit, claim, action or legal proceedings resulted from either an improper performance of his or her duties as a director or an officer of the Registrant or an unlawful or illegal act, and only to the extent that his or her financial losses, damages and expenses are covered by an insurance and the insurer has settled these financial losses, damages and expenses (or has indicated that it would do so). Furthermore, such indemnification will generally not be available in instances of willful (opzettelijk), intentionally reckless (bewust roekeloos) or seriously culpable (ernstig verwijtbaar) conduct unless Dutch law provides otherwise.

 

In connection with the Registrant’s initial U.S. public offering, the Registrant entered into indemnification agreements with each of the Registrant’s non-executive directors and each member of its executive management. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to non-executive directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

In the underwriting agreements the Registrant entered into in connection with its May 2017 initial U.S. public offering and December 2017 U.S. follow-on offering, the underwriters agreed to indemnify, under certain conditions, the Registrant, the members of the Registrant’s board of directors and persons who control the Registrant within the meaning of the Securities Act against certain liabilities, but only to the extent that such liabilities are caused by information relating to the underwriters furnished to the Registrant in writing expressly for use in the Registrant’s registration statement and certain other disclosure documents.

 

ITEM 7.                 EXEMPTION FROM REGISTRATION CLAIMED

 

Not applicable.

 

ITEM 8.                 EXHIBITS

 

See the Exhibit Index below for a list of exhibits filed as a part of, or incorporated by reference into, this Registration Statement, which Exhibit Index is incorporated herein by reference.

 

ITEM 9.                 UNDERTAKINGS

 

1.              The undersigned Registrant hereby undertakes:

 

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

 

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

 

(ii)            To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the

 

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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% 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 plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

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

 

(b)            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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c)            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.

 

2.              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 Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

3.              Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange 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.

 

4



 

EXHIBIT INDEX

 

Exhibit
Number

 

Description

4.1(1)

 

Articles of Association, as amended (English translation).

 

 

 

4.2(2)

 

Form of Deposit Agreement and Form of American Depositary Receipt.

 

 

 

5.1

 

Opinion of Freshfields Bruckhaus Deringer LLP.

 

 

 

23.1

 

Consent of Deloitte Accountants B.V.

 

 

 

23.2

 

Consent of Freshfields Bruckhaus Deringer LLP (included in Exhibit 5.1).

 

 

 

24.1

 

Power of Attorney (included on the signature page).

 

 

 

99.1(3)

 

argenx Employee Stock Option Plan (English translation).

 


(1)

Filed as Exhibit 1.1 to the Registrant’s Registration Statement on Form F-1/A (File No. 333-217417) filed with the SEC on May 4, 2017, and incorporated herein by reference.

(2)

Filed as Exhibits 4.1 and 4.2 to the Registrant’s Registration Statement on Form F-1/A (File No. 333-217417) filed with the SEC on May 16, 2017, and incorporated herein by reference.

(3)

Filed as Exhibit 10.4 to the Registrant’s Registration Statement on Form F-1 (File No. 333-221984) filed with the SEC on December 11, 2017, and incorporated herein by reference.

 

5



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Breda, the Netherlands on June 1, 2018.

 

 

ARGENX SE

 

 

 

 

By:

/s/ Tim Van Hauwermeiren

 

 

Tim Van Hauwermeiren

 

 

Chief Executive Officer

 

6



 

POWER OF ATTORNEY

 

We, the undersigned directors, officers and/or authorized representative in the United States of argenx SE, hereby severally constitute and appoint Tim Van Hauwermeiren and Eric Castaldi, and each of them singly, our true and lawful attorneys-in-fact and agents, with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the registration statement on Form S-8 filed herewith, and any and all pre-effective and post-effective amendments to said registration statement, under the Securities Act of 1933, as amended, in connection with the registration under the Securities Act of 1933, as amended, of equity securities of argenx SE, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the U.S. Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that said attorneys-in-fact and agents, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 1, 2018.

 

Signature

 

Title

 

 

 

/s/ Tim Van Hauwermeiren

 

Chief Executive Officer and Director ( Principal Executive Officer )

Tim Van Hauwermeiren

 

 

 

 

 

 

 

 

/s/ Eric Castaldi

 

Chief Financial Officer ( Principal Financial and Accounting Officer )

Eric Castaldi

 

 

 

 

 

 

 

 

/s/ Peter K.M. Verhaeghe, Ph.D.

 

Chairperson of the Board

Peter K.M. Verhaeghe, Ph.D.

 

 

 

 

 

 

 

 

/s/ David L. Lacey, M.D.

 

Director

David L. Lacey, M.D..

 

 

 

 

 

 

 

 

/s/ Werner Lanthaler, Ph.D.

 

Director (and Vice Chairperson)

Werner Lanthaler, Ph.D.

 

 

 

 

 

 

 

 

/s/ J. Donald deBethizy, Ph.D.

 

Director

J. Donald deBethizy, Ph.D.

 

 

 

 

 

 

 

 

/s/ Pamela Klein, M.D.

 

Director

Pamela Klein, M.D.

 

 

 

 

 

 

 

 

/s/ A.A. Rosenberg

 

Director

A.A. Rosenberg

 

 

 

 

 

 

 

 

/s/ James Daly

 

Director

James Daly

 

 

 

7



 

Puglisi & Associates

 

 

 

 

 

 

 

 

 

By:

/s/ Donald J. Puglisi

 

Authorized Representative in the United States

Name: Donald J. Puglisi

 

 

Title: Managing Director

 

 

 

8


Exhibit 5.1

 

argenx SE

Amsterdam

Willemstraat 5

Freshfields Bruckhaus Deringer LLP

4811AH Breda

Strawinskylaan 10

The Netherlands

1077 XZ Amsterdam

 

Postbus 75299

 

1070 AG Amsterdam

 

T   +31 20 485 7000

 

     +31 20 485 7633 (Direct)

 

F   +31 20 517 7633

 

E dirkjan.smit@freshfields.com

 

www.freshfields.com

 

 

 

Doc ID

 

ACTIVE/95398129.5/1

 

 

 

Our Ref

 

DJS/BS

 

CLIENT MATTER NO. 163871/0014

 

 

1 June 2018

 

 

Dear Sir/Madam,

 

ARGENX SE — FORM S-8 REGISTRATION STATEMENT

 

Introduction

 

1.             We have acted as Dutch law legal advisers to argenx SE (the Company ) with respect to certain matters of Netherlands law in connection with, inter alia , the registration statement on Form S-8 filed with the United States Securities and Exchange Commission ( SEC ) on 1 June 2018 (the Registration Statement ) under the United States Securities Act of 1933, as amended, with respect to up to 5,501,432 ordinary shares of the Company with a nominal value of EUR 0.10 each (the Plan Shares ) to be delivered pursuant to the exercise of option rights to purchase ordinary shares pursuant to the Option Plan (as defined below).

 

This opinion letter is delivered to you pursuant to your request.

 

Documents reviewed

 

2.                                       In rendering the opinion, we have examined the following documents:

 

(a)                                 a scanned copy of the Registration Statement;

 

(b)                                 a scanned copy of the argenx option plan for the grant of option rights to subscribe for Shares as first installed by the Company’s board of directors on 18 December 2014 and approved by the general meeting of shareholders of the Company on 28 April

 

Freshfields Bruckhaus Deringer LLP is a limited liability partnership registered in England and Wales with registered number OC334789. It is authorised and regulated by the Solicitors Regulation Authority. Dutch Chambers of Commerce registration number 34368197. For regulatory information please refer to www.freshfields.com/support/legalnotice.

 

A list of the members (and of the non-members who are designated as partners) of Freshfields Bruckhaus Deringer LLP and their qualifications is available for inspection at its registered office, 65 Fleet Street, London EC4Y 1HS or at the above address. Any reference to a partner means a member, or a consultant or employee with equivalent standing and qualifications, of Freshfields Bruckhaus Deringer LLP or any of its affiliated firms or entities. Freshfields Bruckhaus Deringer LLP’s Amsterdam office includes attorneys, civil law notaries, tax advisers and solicitors.

 

Bank account: 

 

Stg Beh Derdengld Freshfields Bruckhaus Deringer LLP, ABN AMRO Bank N.V., IBAN: NL14ABNA0256049947, BIC: ABNANL2A

 

Abu Dhabi  Amsterdam  Bahrain  Beijing  Berlin  Brussels  Cologne  Dubai  Düsseldorf  Frankfurt am Main  Hamburg  Hanoi  Ho Chi Minh City  Hong Kong

 

London  Madrid  Milan  Moscow  Munich  New York  Paris  Rome  Shanghai  Singapore  Tokyo  Vienna  Washington

 



 

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2016 (the Option Plan and the option rights granted pursuant to the Plan, the Plan Option Rights );

 

(c)                                  an electronic copy of an extract from the commercial register of the Dutch Chamber of Commerce (the Commercial Register ) dated 1 June 2018 relating to the Company, and confirmed upon our request by the Commercial Register by telephone to be correct in all material respects as at 12.28 hrs CEST on the date hereof (the Extract );

 

(d)                                 a print-out of an electronic online confirmation from the insolvency register from the district court of Rotterdam through www.rechtspraak.nl and the online EU Insolvency register dated 1 June 2018 that the Company has not been declared bankrupt ( failliet verklaard ) or has not been granted a suspension of payments ( surseance van betaling ) and confirmed upon our request by the court registries of the district courts of Rotterdam by telephone to be correct as at 12.38 hrs CEST on the date hereof;

 

(e)                                  a scanned copy of a deed of conversion and amendment ( akte van omzetting en statutenwijziging ) dated 26 April 2017 relating to the conversion of the legal form of the Company into an SE or European Company and amendment of the articles of association ( statuten ) of the Company (the Deed of Amendment ), which, according to the Extract, are the Company’s articles of association currently in force and effect (the Articles of Association ); and

 

(f)                                   scanned copies of the signed:

 

(i)                                     minutes of the board of directors of the Company dated 18 December 2014;

 

(ii)                                  the notarial deed of record dated 24 May 2016, concerning the proceedings of the general meeting of shareholders of the Company, held on 28 April 2016, drawn up by Cornelis Johannes Jozefus Maria van Gool, civil law notary, officiating in Amsterdam, the Netherlands; and

 

(iii)                               an extract dated 1 June 2018 from the proceedings of the annual general meeting of shareholders of the Company, held on 8 May 2018, drawn up by Dirk-Jan Jeroen Smit, civil law notary, officiating in Amsterdam, the Netherlands.

 

The documents referred to above in items (a) to (f) (inclusive) are herein referred to as the Documents ; the documents referred to above in items (d) and (f) are herein referred to as the Corporate Documents and the documents referred to above in item (f) are herein referred to as the Resolutions .

 

Nature of Opinion and Observations

 

3.                                       This letter is subject to the following nature of opinion and observations:

 

(a)                                 Dutch Law:  this opinion is confined to the laws with general applicability ( wettelijke regels met algemene gelding ) of the Netherlands and, insofar as they are directly applicable in the Netherlands, the European Union, all as they stand as at the date hereof and as such laws are currently interpreted in published authoritative case law of the courts of the Netherlands ( Dutch law ); accordingly, we express no opinion with regard to any other system of law (including the law of jurisdictions other than the Netherlands in which our firm has an office), even in cases where, in accordance

 



 

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with Dutch law, any foreign law should be applied; furthermore, we do not express any opinion on public international law or on the rules of or promulgated under any treaty or by any treaty organisation (except as otherwise stated above);

 

(b)                                 Changes in Law:   we express no opinion that the future or continued performance of a party’s obligations with regard to the issuance of the Plan Shares will not contravene Dutch law, its application or interpretation if altered in the future;

 

(c)                                  Territory of the Netherlands:   all references in this opinion letter and its schedules to the Netherlands and Dutch law are to the European part of the Netherlands and its law, respectively, only;

 

(d)                                 Factual Statements:   we have not been responsible for investigating or verifying the accuracy of the facts (or statements of foreign law) or the reasonableness of any statements of opinion or intention contained in any documents, or for verifying that no material facts or provisions have been omitted therefrom; nor have we verified the accuracy of any assumption made in this opinion letter;

 

(e)                                  Representations:   we express no opinion as to the correctness of any representation given by any of the parties (express or implied) under or by virtue of the Documents, save if and insofar as the matters represented are the subject matter of a specific opinion herein;

 

(f)                                   Effects of Opinion:   the opinions expressed in this opinion letter have no bearing on declarations made, opinions expressed or statements of a similar nature made by any of the parties in the Documents;

 

(g)                                  Nature of Investigations:   in rendering this opinion we have exclusively examined the Documents and we have conducted such investigations of Dutch law as we have deemed necessary or advisable for the purpose of giving this opinion letter; as to matters of fact we have relied on the Documents and any other document we have deemed relevant, and on statements or certificates of public officials; this opinion letter is subject to any factual matters, documents or events not disclosed to us;

 

(h)                                 Tax:  we express no opinion in respect of the tax treatment of the Documents or the Transaction; you have not relied on any advice from us in relation to the tax implications of the Documents or the Transaction for any person, whether in the Netherlands or any other jurisdiction, or the suitability of any tax provisions in the Documents;

 

(i)                                     Operational Licenses:  we have not investigated whether the Company has obtained any of the operational licenses, permits and consents which it may require for the purpose of carrying on its business (including the Transaction);

 

(j)                                    Anti-trust:  we have not considered whether the transactions contemplated by the Documents comply with civil, regulatory or criminal anti-trust, cartel, competition, public procurement or state aid laws, nor whether any filings, clearances, notifications or disclosures are required or advisable under such laws;

 

(k)                                 Data Protection:  we express no opinion on any data protection or insider trading laws of any jurisdiction (including the Netherlands);

 



 

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(l)                                     Legal Concepts:  Dutch legal concepts are expressed in English terms and not in their original Dutch terms; the concepts concerned may not be identical to the concepts described by the same English terms as they exist in the laws of other jurisdictions; and

 

(m)                             Date of Opinion:   this opinion speaks as of the date hereof; no obligation is assumed to update this opinion or to inform any person of any changes of law or other matters coming to our knowledge and occurring after the date hereof, which may affect this opinion in any respect.

 

Opinion

 

4.             On the basis stated in paragraph 3, and subject to the assumptions in Schedule 1, the qualifications in Schedule 2, we are of the opinion that subject to receipt by the Company of the payment of the exercise price in full as provided for in the Option Plan, the Plan Shares, when issued pursuant to the terms of the Option Plan and accepted by the acquiror(s), will be validly issued, fully paid and non-assessable.

 

Benefit of opinion

 

5.             This opinion is addressed to you in relation to and as an exhibit to the Registration Statement and, except with our prior written consent, is not to be transmitted or disclosed to any other person, other than as an exhibit to the Registration Statement and is not to be used or relied upon by you or by any other person for any purpose other than in connection with the filing of the Registration Statement.

 

Governing law

 

6.             This opinion letter and any non-contractual obligations arising out of or in relation to this opinion are governed by the laws of the Netherlands. (1)

 

Consent

 

7.             We hereby consent to the filing of this legal opinion letter as an exhibit to the Registration Statement. In giving the consent set out in the previous sentence, we do not thereby admit or imply that we are in the category of persons whose consent is required under Section 7 of the Securities Act or any rules and regulations of the SEC promulgated thereunder.

 

Yours faithfully,

 

/s/ Freshfields Bruckhaus Deringer LLP

 

Freshfields Bruckhaus Deringer LLP

 


(1)  The general terms and conditions of Freshfields Bruckhaus Deringer LLP can be found at www.freshfields.com.

 



 

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Schedule 1
ASSUMPTIONS

 

In considering the Opinion Documents and in rendering this opinion we have (with your consent and, unless specifically stated otherwise, without any further enquiry) assumed that:

 

(a)                                 Authenticity:   all signatures, stamps and seals on all documents in connection with this opinion (whether as originals or copies) are genuine and all such documents are authentic, accurate and complete;

 

(b)                                 Copies:   all documents retrieved by us or supplied to us electronically (whether in portable document format (PDF) or as scanned copies), as photocopies, facsimile copies or e-mail conformed copies are in conformity with the originals;

 

(c)                                  No Amendments:   none of the Documents has since its execution been amended, supplemented, rescinded, terminated by any of the parties thereto or declared null and void by a competent court;

 

(d)                                 Registration:         the Registration Statement has been or will have been filed with the SEC and declared effective pursuant to the Securities Act;

 

(e)                                  Corporate Documents:   at the time when any Corporate Document was signed or will be signed, as the case may be, each person who is a party to or signatory of that Corporate Document, as applicable (i) had been validly incorporated, was validly existing and, to the extent relevant in such party’s jurisdiction, in good standing under the laws applicable to such party, (ii) had all requisite power, authority and legal capacity to sign that Corporate Document and to perform all juridical acts ( rechtshandelingen ) and other actions contemplated thereby and (iii) has validly signed that Corporate Document;

 

(f)                                   Extract:  the information set forth in the Extract is accurate and complete on the date hereof;

 

(g)                                  Articles of Association:  the Articles of Association have not been amended;

 

(h)                                 Resolutions:   the Resolutions have not been revoked ( ingetrokken ) or amended and have not been and will not be declared null and void by a competent court and the Resolutions have not been, and will not be, amended, revoked ( ingetrokken ), terminated or declared null and void by a competent court and the factual statements and confirmations set out in the Resolutions are true and correct;

 

(i)                                     Corporate Benefit:   the Option Plan and the transactions contemplated thereby are in the corporate interests ( vennootschappelijk belang ) of the Company;

 

(j)                                    Plan Option Rights: all Plan Option Rights have been or shall be validly granted by the corporate body authorized to do so and accepted in accordance with the terms and conditions stipulated by or pursuant to the Option Plan, ( ii) any pre-emption rights in respect of the granting of Plan Option Rights 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 Option Rights to subscribe for such Plan Shares has been validly exercised in accordance with the terms and conditions applicable to such Plan Option Right;

 



 

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(k)                                 Exercise Price the exercise price per Plan Option Right for one Plan Share shall at least equal the aggregate nominal value of such Plan Share, the exercise price shall be in Euro and, where relevant, the Company shall have consented to payment in a currency other than Euro and the Company shall in case of a payment in a currency other than Euro have obtained a statement as referred to in Section 2:93a paragraphs 2 and 6 of the Dutch Civil Code on the corresponding amount in Euro;

 

(l)                                     Listing of Shares : unless the Company duly relies on an exemption under the EU Prospectus Directive and the new Prospectus Regulation, Plan Shares shall have been admitted to trading on Euronext Brussels pursuant to and following the approval and publication of a prospectus drawn up in accordance with the EU Prospectus Directive and the new Prospectus Regulation;

 

(m)                             Financial Supervision Act:   the Company is not required to be licensed pursuant to the Dutch Financial Supervision Act ( Wet op het financieel toezicht );

 

(n)                                 Anti-terrorism, Money Laundering: the parties to the Transaction comply with all applicable anti-terrorism, anti-corruption, anti-money laundering, sanctions and human rights laws and regulations, and the performance or enforcement of the Transaction is consistent with all such laws and regulations; and

 

(o)                                 No Director Disqualification: none of the directors of the Company is subject to a civil law director disqualification (civielrechtelijk bestuursverbod) imposed by a court under articles 106a to 106e of the Dutch Bankruptcy Act ( Faillissementswet ) (as amended by the Directors disqualification act ( Wet civielrechtelijk bestuursverbod )).

 



 

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Schedule 2
QUALIFICATIONS

 

Our opinion is subject to the following qualifications:

 

(a)                                 Insolvency Proceedings:   our opinion is subject to and limited by the provisions of any applicable bankruptcy, insolvency, moratorium, (preliminary) suspension of payments, emergency and other similar rules and laws of general application relating to or affecting generally the enforcement of creditors’ rights and remedies from time to time in effect; a confirmation derived from an insolvency register does not provide conclusive evidence that an entity is not subject to any insolvency proceedings as defined in the Council Regulation (EC) no. 1346/2000 of 29 May 2000 on Insolvency Procedures or otherwise;

 

(b)                                 Creditor Action:   our opinion is subject to and limited by the protection afforded by Dutch law to creditors whose interests have been adversely affected pursuant to the rules of Dutch law relating to (i) unlawful acts ( onrechtmatige daden ) based on section 6:162 et seq. of the Dutch Civil Code ( Burgerlijk Wetboek ) and (ii) fraudulent conveyance or preference ( actio pauliana ) within the meaning of section 3:45 of the Dutch Civil Code ( Burgerlijk Wetboek ) and/or section 42 et seq. of the Dutch Bankruptcy Act ( Faillissementswet );

 

(c)                                  Limitations under Dutch law:   the validity and enforceability of obligations of a Company are subject to applicable prescription or limitation periods, principles of set-off (unless such right is validly waived), force majeure ( overmacht ), reasonableness and fairness ( redelijkheid en billijkheid ), unforeseen circumstances ( onvoorziene omstandigheden ) and other defences afforded by Dutch law to obligors generally;

 

(d)                                 Scope of Objects:   the Company may invoke the nullity of any legal act ( rechtshandeling ) if such legal act was outside its objects and the other party to such legal act was or should — without investigation - have been aware of this; however, the determination of whether a legal act is within the objects of the Company may not be based solely on the description of these objects in the Company’s articles of association, but must take into account all relevant circumstances, including in particular the question whether the interests of the Company are served by the relevant legal act;

 

(e)                                  Sanctions Act 1977 : the Sanctions Act 1977 ( Sanctiewet 1977 ) and regulations promulgated thereunder, or international sanctions, may limit enforceability;

 

(f)                                   Non-assessable: in absence of an equivalent Dutch legal term for the term “non-assessable” as used in this opinion letter and for the purposes of this opinion letter, non-assessable means that no holder of Plan Shares can be required to pay any amount in addition to the amount required for such share to be fully paid as provided for by Section 2:81 of the Dutch Civil Code and holders of Plan Shares cannot be held personally liable for acts performed in the name of the Company and cannot be held liable to contribute to losses of the Company in excess of the amount which must be paid up on their shares as provided for by Section 2:64 of the Dutch Civil Code; and

 



 

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(g)                                  Commercial Register: an extract from the Commercial Register does not provide conclusive evidence that the facts set out in it are correct. However, under the 2007 Trade Register Act ( Handelsregisterwet 2007 ), subject to limited exceptions, a legal entity cannot invoke the incorrectness or incompleteness of its Commercial Register information against third parties who were unaware of the incorrectness or incompleteness.

 


Exhibit 23.1

 

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 26, 2018, relating to the financial statements and financial schedules of argenx SE appearing in the Annual Report on Form 20-F of argenx SE by the year ended December 31, 2017.

 

Deloitte Accountants B.V.

 

 

 

/s/ Paul Seegers

 

Paul Seegers

 

 

 

Rotterdam

 

Netherlands

 

 

 

June 1, 2018