|
The Netherlands
|
| | | | |
Not Applicable
|
|
|
(State or other jurisdiction of
incorporation or organization) |
| |
(Primary Standard Industrial
Classification Code Number) |
| |
(I.R.S. Employer
Identification Number) |
|
|
Richard D. Truesdell, Jr.
Leo Borchardt Davis Polk & Wardwell LLP 450 Lexington Avenue New York, New York 10017 +1 (212) 450-4000 |
| |
Paul van der Bijl
NautaDutilh N.V. Beethovenstraat 400 1082 PR Amsterdam The Netherlands +31 (20) 717-1000 |
| |
Nathan Ajiashvili
Oliver Seiler Latham & Watkins LLP 885 Third Avenue New York, New York 10022 +1 (212) 906-1200 |
|
CALCULATION OF REGISTRATION FEE
|
| ||||||||||||||||||||||||
Title of each class of securities to be registered
|
| |
Amount to be
Registered(1) |
| |
Proposed Maximum
Offering Price Per Share(2) |
| |
Proposed Maximum
Aggregate Offering Price(1)(2) |
| |
Amount of
Registration Fee(3) |
| ||||||||||||
Common shares, par value €0.12 per share
|
| | | | 15,333,332 | | | | | $ | 16.00 | | | | | $ | 245,333,312 | | | | | $ | 31,844.27 | | |
| | |
Per Share
|
| |
Total
|
| ||||||
Public offering price
|
| | | $ | | | | | $ | | | ||
Underwriting discounts(1)
|
| | | $ | | | | | $ | | | ||
Proceeds, before expenses, to us
|
| | | $ | | | | | $ | | | |
| BofA Securities | | |
Jefferies
|
| |
Credit Suisse
|
|
| Berenberg | | | | | |
Kempen & Co
|
|
| | |
Page
|
| |||
| | | | 1 | | | |
| | | | 15 | | | |
| | | | 82 | | | |
| | | | 84 | | | |
| | | | 86 | | | |
| | | | 87 | | | |
| | | | 88 | | | |
| | | | 89 | | | |
| | | | 90 | | | |
| | | | 92 | | | |
| | | | 114 | | | |
| | | | 214 | | | |
| | | | 228 | | | |
| | | | 230 | | | |
| | | | 235 | | | |
| | | | 244 | | | |
| | | | 256 | | | |
| | | | 258 | | | |
| | | | 274 | | | |
| | | | 282 | | | |
| | | | 283 | | | |
| | | | 283 | | | |
| | | | 283 | | | |
| | | | 284 | | | |
| | | | F-1 | | |
| Issuer | | | CureVac B.V., to be converted into and renamed CureVac N.V. prior to the closing of this offering. | |
|
Common shares offered
|
| | We are offering 13,333,333 common shares. | |
|
Underwriters’ option to purchase additional common shares
|
| |
We have granted the underwriters the right to purchase up to an additional 1,999,999 common shares from us within 30 days of the date of this prospectus. |
|
| Concurrent Private Placement | | | Mr. Dietmar Hopp, has agreed, concurrently with, and subject to, the completion of this offering, to purchase from us a certain number of common shares with an aggregate value of €100 million at the initial public offering price per share. It is expected that Mr. Hopp will effect this purchase through DH-LT-Investments GmbH, an affiliated entity. This purchase will be made by Mr. Hopp pursuant to the concurrent private placement. The closing of this offering is not conditioned upon the closing of the concurrent private placement. | |
|
Common shares to be outstanding after this offering
|
| |
176,459,870 common shares (178,459,869 common shares if the underwriters’ option to purchase additional common shares is exercised in full) assuming that we issue and sell 7,866,666 common shares to Mr. Hopp in the concurrent private placement, assuming an initial public offering price of $15.00 per share, which is the midpoint of the price range set forth on the cover page of this prospectus (the actual number of common shares issued in the concurrent private placement will be based on the exchange rate on the date of this prospectus rather than the assumed exchange rate of $1.18 to €1.00). |
|
|
Voting rights
|
| | Our common shares have one vote per share. | |
| Listing | | | We have applied to list our common shares on The Nasdaq Global Market, or Nasdaq, under the symbol “CVAC.” | |
|
Use of proceeds
|
| | We estimate that the net proceeds to us from the offering will be (i) approximately $182.7 million ($210.6 million if the underwriters’ option to purchase additional common shares is exercised in full), assuming an initial public offering price of $15.00 per common share, which is the midpoint of the price range set forth on the cover page of this prospectus; and (ii) additional net proceeds of €100 million from the concurrent private placement. We currently intend to use the net proceeds from the offering and the concurrent private placement, together with cash and cash equivalents on hand as follows: (i) to fund the Company’s mRNA vaccine program against SARS-CoV-2 through the completion of Phase 3; (ii) to fund the expansion of the Company’s short term manufacturing capabilities; (iii) to advance the Company’s lead oncology program, CV8102, through the completion of the Phase 2 clinical trial; (iv) to advance the Company’s vaccine program, CV7202 in rabies through the completion of the | |
| | | | Phase 2 clinical trial; (v) to invest in further development of the Company’s mRNA technology platform and to advance the development of other preclinical and clinical programs; and (vi) the remainder for working capital and general corporate purposes. See “Use of Proceeds.” | |
|
Dividend policy
|
| | We have never paid or declared any cash dividends on our common shares and we do not anticipate paying any cash dividends on our common shares in the foreseeable future. We intend to retain all available funds and any future earnings to fund the development and expansion of our business. As of the completion of our corporate reorganization, under Dutch law, we may only pay dividends to the extent our shareholders’ equity (eigen vermogen) exceeds the sum of the paid-in and called-up share capital plus the reserves required to be maintained by Dutch law or by our articles of association and (if it concerns a distribution of profits) after adoption of the annual accounts by the general meeting from which it appears that such dividend distribution is allowed. Subject to such restrictions, any future determination to pay dividends will be at the discretion of our management board with the approval of our supervisory board and will depend upon a number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors our management board and supervisory board deem relevant. | |
|
Lock-up agreements
|
| | We have agreed with the underwriters, subject to certain exceptions, not to offer, sell or dispose of any shares of our share capital or securities convertible into or exchangeable or exercisable for any shares of our share capital during the 180-day period following the date of this prospectus. Our managing directors and our supervisory directors, as well as substantially all of our existing shareholders, have agreed to substantially similar lock-up provisions, subject to certain exceptions. | |
|
Risk factors
|
| | See “Risk Factors” and the other information included in this prospectus for a discussion of factors you should consider before deciding to invest in our common shares. | |
|
Directed share program
|
| | At our request, the underwriters have reserved up to 400,000 common shares, or 3% of common shares to be offered by this prospectus for sale, at the initial public offering price, through a directed share program. Common shares purchased through the directed share program will not be subject to a lock-up restriction, except in the case of common shares purchased by any of our directors or officers. We do not know if any of these potential investors will choose to purchase all or any portion of the allocated shares, but the number of common shares available for sale to the general public will be reduced to the extent these individuals or entities purchase such reserved common shares. Any reserved common shares that are not so purchased will be offered by the underwriters to the general | |
| | | | public on the same basis as the other common shares offered by this prospectus. | |
| | |
For the Years Ended
December 31, |
| |
For the Three-
Months Ended March 31, |
| ||||||||||||||||||
| | |
2018
|
| |
2019
|
| |
2019
|
| |
2020
|
| ||||||||||||
(in thousands of euros, except per share amounts)
|
| | | | | | | | | | | | | |
(unaudited)
|
| |||||||||
Statement of Operations and Comprehensive Income (Loss) Data:
|
| | | | | | | | | | | | | | | ||||||||||
Revenue
|
| | | | 12,871 | | | | | | 17,416 | | | | | | 3,156 | | | | | | 3,119 | | |
Cost of sales
|
| | | | (17,744) | | | | | | (27,983) | | | | | | (7,558) | | | | | | (5,475) | | |
Selling and distribution expenses
|
| | | | (1,085) | | | | | | (1,755) | | | | | | (198) | | | | | | (330) | | |
Research and development expenses
|
| | | | (41,722) | | | | | | (43,242) | | | | | | (10,862) | | | | | | (10,902) | | |
General and administrative expenses
|
| | | | (25,289) | | | | | | (48,969) | | | | | | (6,887) | | | | | | (11,495) | | |
Other operating income
|
| | | | 808 | | | | | | 5,587 | | | | | | 732 | | | | | | 1,995 | | |
Other operating expenses
|
| | | | (663) | | | | | | (552) | | | | | | (108) | | | | | | (127) | | |
Operating loss
|
| | | | (72,824) | | | | | | (99,498) | | | | | | (21,725) | | | | | | (23,216) | | |
Finance income
|
| | | | 1,968 | | | | | | 833 | | | | | | 649 | | | | | | 1,041 | | |
Finance expenses
|
| | | | (275) | | | | | | (1,460) | | | | | | (90) | | | | | | (1,719) | | |
Loss before income tax
|
| | | | (71,131) | | | | | | (100,125) | | | | | | (21,166) | | | | | | (23,894) | | |
Income tax benefit (expense)
|
| | | | (110) | | | | | | 252 | | | | | | (142) | | | | | | 44 | | |
Net loss for the year
|
| | | | (71,241) | | | | | | (99,873) | | | | | | (21,308) | | | | | | (23,850) | | |
Other comprehensive income/loss: | | | | | | | | | | | | | | | | | | | | | | | | | |
Items that may be subsequently reclassified to profit or loss
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Foreign currency adjustments
|
| | | | 66 | | | | | | 32 | | | | | | 36 | | | | | | 48 | | |
Total comprehensive loss for the year
|
| | | | (71,175) | | | | | | (99,841) | | | | | | (21,272) | | | | | | (23,802) | | |
|
| | |
As of March 31, 2020
|
| |||||||||||||||
| | |
Actual
|
| |
Pro
Forma(1) |
| |
Pro Forma
As Adjusted(2)(3) |
| |||||||||
| | |
(in thousands of euros)
(unaudited) |
| |||||||||||||||
Statement of Financial Position Data: | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | | 43,474 | | | | | | 626,804 | | | | | | 781,631 | | |
Total assets
|
| | | | 155,656 | | | | | | 738,986 | | | | | | 893,812 | | |
Total liabilities
|
| | | | 199,313 | | | | | | 132,235 | | | | | | 132,235 | | |
Total equity
|
| | | | (43,657) | | | | | | 606,751 | | | | | | 761,577 | | |
| | |
As of March 31, 2020
|
| |||||||||||||||
| | |
Actual
|
| |
Pro Forma
|
| |
Pro Forma
As Adjusted(1) |
| |||||||||
| | |
(in thousands of euros)
(unaudited) |
| |||||||||||||||
Cash and cash equivalents
|
| | | | 43,474 | | | | | | 626,804 | | | | | | 781,631 | | |
Convertible loans
|
| | | | 67,078 | | | | | | — | | | | | | — | | |
Equity(2): | | | | | | | | | | | | | | | | | | | |
Issued capital
|
| | | | 743 | | | | | | 19,490 | | | | | | 21,090 | | |
Capital reserve
|
| | | | 495,327 | | | | | | 1,135,891 | | | | | | 1,289,117 | | |
Accumulated deficit
|
| | | | (539,797) | | | | | | (548,700) | | | | | | (548,700) | | |
Other comprehensive income
|
| | | | 70 | | | | | | 70 | | | | | | 70 | | |
Total shareholders’ equity
|
| | | | (43,657) | | | | | | 606,751 | | | | | | 761,577 | | |
Total capitalization
|
| | | | 23,241 | | | | | | 606,751 | | | | | | 761,577 | | |
| | |
$
|
| |
€
|
| ||||||
Assumed initial public offering price per common share
|
| | | | 15.00 | | | | | | 12.71 | | |
Pro forma net tangible book value per common share at March 31, 2020 after giving
effect to (i) the consummation of the 2020 Private Investment, (ii) the consummation of the concurrent private placement to Mr. Hopp of €100 million of our common shares at a price per share equal to the public offering price in this public offering, (iii) the repayment in full of the Convertible Loans with Mr. Dietmar Hopp and (iv) our corporate reorganization |
| | | | 4.34 | | | | | | 3.68 | | |
Increase in net tangible book value per common share attributable to new investors
|
| | | | 0.71 | | | | | | 0.60 | | |
Pro forma as adjusted net tangible book value per common share at March 31, 2020 after giving effect to the corporate reorganization and the offering
|
| | | | 5.05 | | | | | | 4.28 | | |
Dilution per common share to new investors
|
| | | | 9.95 | | | | | | 8.43 | | |
Percentage of dilution per common share to new investors
|
| | | | 66.3% | | | | | | 66.3% | | |
| | |
For the Years Ended
December 31, |
| |
For the Three
Months Ended March 31, |
| ||||||||||||||||||
(in thousands of euros, except per share amounts)
|
| |
2018
|
| |
2019
|
| |
2019
|
| |
2020
|
| ||||||||||||
| | | | | | | | | | | | | | |
(unaudited)
|
| |||||||||
Statement of Operations and Comprehensive Income (Loss) Data: | | | | | | | | | | | | | | | | ||||||||||
Revenue
|
| | | | 12,871 | | | | | | 17,416 | | | | | | 3,156 | | | | | | 3,119 | | |
Cost of sales
|
| | | | (17,744) | | | | | | (27,983) | | | | | | (7,558) | | | | | | (5,475) | | |
Selling and distribution expenses
|
| | | | (1,085) | | | | | | (1,755) | | | | | | (198) | | | | | | (330) | | |
Research and development expenses
|
| | | | (41,722) | | | | | | (43,242) | | | | | | (10,862) | | | | | | (10,902) | | |
General and administrative expenses
|
| | | | (25,289) | | | | | | (48,969) | | | | | | (6,887) | | | | | | (11,495) | | |
Other operating income
|
| | | | 808 | | | | | | 5,587 | | | | | | 732 | | | | | | 1,995 | | |
Other operating expenses
|
| | | | (663) | | | | | | (552) | | | | | | (108) | | | | | | (127) | | |
Operating loss
|
| | | | (72,824) | | | | | | (99,498) | | | | | | (21,725) | | | | | | (23,216) | | |
Finance income
|
| | | | 1,968 | | | | | | 833 | | | | | | 649 | | | | | | 1,041 | | |
Finance expenses
|
| | | | (275) | | | | | | (1,460) | | | | | | (90) | | | | | | (1,719) | | |
Loss before income tax
|
| | | | (71,131) | | | | | | (100,125) | | | | | | (21,166) | | | | | | (23,894) | | |
Income tax benefit (expense)
|
| | | | (110) | | | | | | 252 | | | | | | (142) | | | | | | 44 | | |
Net loss for the year
|
| | | | (71,241) | | | | | | (99,873) | | | | | | (21,308) | | | | | | (23,850) | | |
Other comprehensive income/loss: | | | | | | | | | | | | | | | | | | | | | | | | | |
Items that may be subsequently reclassified to profit or loss
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Foreign currency adjustments
|
| | | | 66 | | | | | | 32 | | | | | | 36 | | | | | | 48 | | |
Total comprehensive loss for the year
|
| | | | (71,175) | | | | | | (99,841) | | | | | | (21,272) | | | | | | (23,802) | | |
Net loss per share (basic and diluted)
|
| | | | (98.05) | | | | | | (137.45) | | | | | | (29.32) | | | | | | (32.48) | | |
|
| | |
As of December 31,
|
| |
As of March 31,
|
| ||||||||||||
| | |
2018
|
| |
2019
|
| |
2020
|
| |||||||||
(in thousands of euros)
|
| | | | |
(unaudited)
|
| ||||||||||||
Statement of Financial Position Data: | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | | 21,380 | | | | | | 30,684 | | | | | | 43,474 | | |
Total assets
|
| | | | 125,659 | | | | | | 130,620 | | | | | | 155,656 | | |
Total liabilities
|
| | | | 93,576 | | | | | | 173,422 | | | | | | 199,313 | | |
Total equity
|
| | | | 32,083 | | | | | | (42,802) | | | | | | (43,657) | | |
| | |
For the Three Months Ended
March 31, |
| |||||||||
(in thousands of EUR, except per share data)
|
| |
2019
|
| |
2020
|
| ||||||
| | |
(unaudited)
|
| |||||||||
Statement of Operations and Comprehensive Income (Loss) Data: | | | | | | | | | | | | | |
Revenue
|
| | | | 3,156 | | | | | | 3,119 | | |
Cost of sales
|
| | | | (7,558) | | | | | | (5,475) | | |
Selling and distribution expenses
|
| | | | (198) | | | | | | (330) | | |
Research and development expenses
|
| | | | (10,862) | | | | | | (10,902) | | |
General and administrative expenses
|
| | | | (6,887) | | | | | | (11,495) | | |
Other operating income
|
| | | | 732 | | | | | | 1,995 | | |
Other operating expenses
|
| | | | (108) | | | | | | (127) | | |
Operating loss
|
| | | | (21,725) | | | | | | (23,216) | | |
Finance income
|
| | | | 649 | | | | | | 1,041 | | |
Finance expenses
|
| | | | (90) | | | | | | (1,719) | | |
Loss before income tax
|
| | | | (21,166) | | | | | | (23,894) | | |
Income tax benefit (expense)
|
| | | | (142) | | | | | | 44 | | |
Net loss for the year
|
| | | | (21,308) | | | | | | (23,850) | | |
Other comprehensive income/loss: | | | | | | | | | | | | | |
Items that may be subsequently reclassified to profit or loss
|
| | | | | | | | | | | | |
Foreign currency adjustments
|
| | | | 36 | | | | | | 48 | | |
Total comprehensive loss for the year
|
| | | | (21,272) | | | | | | (23,802) | | |
Net loss per share (basic and diluted)
|
| | | | (29.32) | | | | | | (32.48) | | |
| | |
For the Three Months Ended
March 31, |
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
(in thousands of euros)
(unaudited) |
| |||||||||
Personnel
|
| | | | (2,488) | | | | | | (2,821) | | |
Materials
|
| | | | (2,928) | | | | | | (1,550) | | |
Third-party services
|
| | | | (1,489) | | | | | | (675) | | |
Maintenance and lease
|
| | | | (206) | | | | | | (159) | | |
Amortization and depreciation
|
| | | | (401) | | | | | | (246) | | |
Other
|
| | | | (46) | | | | | | (24) | | |
Total | | | | | (7,558) | | | | | | (5,475) | | |
| | |
For the Three Months Ended
March 31, |
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
(in thousands of euros)
(unaudited) |
| |||||||||
Personnel
|
| | | | (79) | | | | | | (240) | | |
Maintenance and lease costs
|
| | | | (88) | | | | | | — | | |
Amortization and depreciation
|
| | | | (19) | | | | | | (41) | | |
Other
|
| | | | (12) | | | | | | (49) | | |
Total | | | | | (198) | | | | | | (330) | | |
|
| | |
For the Three Months Ended
March 31, |
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
(in thousands of euros)
(unaudited) |
| |||||||||
Materials
|
| | | | (963) | | | | | | (1,165) | | |
Personnel
|
| | | | (3,251) | | | | | | (3,686) | | |
Amortization and depreciation
|
| | | | (129) | | | | | | (351) | | |
Patents and fees to register a legal right
|
| | | | (1,202) | | | | | | (823) | | |
Third-party services
|
| | | | (5,094) | | | | | | (4,263) | | |
Maintenance and lease
|
| | | | (111) | | | | | | (454) | | |
Other
|
| | | | (112) | | | | | | (160) | | |
Total | | | | | (10,862) | | | | | | (10,902) | | |
| | |
For the Three Months Ended
March 31, |
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
(in thousands of euros)
(unaudited) |
| |||||||||
Key Programs (CV8102, CV7202 and SARS-CoV-2) | | | | | | | | | | | | | |
CV8102
|
| | | | 1,125 | | | | | | 1,425 | | |
CV7202
|
| | | | 527 | | | | | | 898 | | |
SARS-CoV-2
|
| | | | — | | | | | | 396 | | |
Other Research and Development Programs
|
| | | | 3,535 | | | | | | 2,836 | | |
Unallocated costs(1)
|
| | | | 5,675 | | | | | | 5,347 | | |
Total | | | | | 10,862 | | | | | | 10,902 | | |
| | |
For the Three Months Ended
March 31, |
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
(in thousands of euros)
(unaudited) |
| |||||||||
Personnel
|
| | | | (3,936) | | | | | | (7,055) | | |
Maintenance and lease costs
|
| | | | (990) | | | | | | (1,333) | | |
Third-party services
|
| | | | (571) | | | | | | (1,420) | | |
Legal and other professional services
|
| | | | (154) | | | | | | (427) | | |
Amortization and depreciation
|
| | | | (426) | | | | | | (418) | | |
Other
|
| | | | (810) | | | | | | (842) | | |
Total | | | | | (6,887) | | | | | | (11,495) | | |
| | |
For the Years Ended
December 31, |
| |||||||||
(in thousands of EUR, except per share data)
|
| |
2018
|
| |
2019
|
| ||||||
Statement of Operations and Comprehensive Income (Loss) Data: | | | | | | | | | | | | | |
Revenue
|
| | | | 12,871 | | | | | | 17,416 | | |
Cost of sales
|
| | | | (17,744) | | | | | | (27,983) | | |
Selling and distribution expenses
|
| | | | (1,085) | | | | | | (1,755) | | |
Research and development expenses
|
| | | | (41,722) | | | | | | (43,242) | | |
General and administrative expenses
|
| | | | (25,289) | | | | | | (48,969) | | |
Other operating income
|
| | | | 808 | | | | | | 5,587 | | |
Other operating expenses
|
| | | | (663) | | | | | | (552) | | |
Operating loss
|
| | | | (72,824) | | | | | | (99,498) | | |
Finance income
|
| | | | 1,968 | | | | | | 833 | | |
Finance expenses
|
| | | | (275) | | | | | | (1,460) | | |
Loss before income tax
|
| | | | (71,131) | | | | | | (100,125) | | |
Income tax benefit (expense)
|
| | | | (110) | | | | | | 252 | | |
Net loss for the year
|
| | | | (71,241) | | | | | | (99,873) | | |
Other comprehensive income/loss: | | | | | | | | | | | | | |
Items that may be subsequently reclassified to profit or loss
|
| | | | | | | | | | | | |
Foreign currency adjustments
|
| | | | 66 | | | | | | 32 | | |
Total comprehensive loss for the year
|
| | | | (71,175) | | | | | | (99,841) | | |
Net loss per share (basic and diluted)
|
| | | | (98.05) | | | | | | (137.45) | | |
| | |
For the years ended
December 31, |
| |||||||||
| | |
2018
|
| |
2019
|
| ||||||
| | |
(in thousands of euros)
|
| |||||||||
Personnel
|
| | | | (7,703) | | | | | | (9,855) | | |
Materials
|
| | | | (4,941) | | | | | | (7,542) | | |
Third-party services
|
| | | | (2,340) | | | | | | (7,268) | | |
Maintenance and lease
|
| | | | (1,758) | | | | | | (1,060) | | |
Amortization and depreciation
|
| | | | (893) | | | | | | (2,038) | | |
Other
|
| | | | (109) | | | | | | (220) | | |
Total | | | | | (17,744) | | | | | | (27,983) | | |
| | |
For the years ended
December 31, |
| |||||||||
| | |
2018
|
| |
2019
|
| ||||||
| | |
(in thousands of euros)
|
| |||||||||
Personnel
|
| | | | (581) | | | | | | (1,263) | | |
Maintenance and lease costs
|
| | | | (300) | | | | | | (167) | | |
Amortization and depreciation
|
| | | | (95) | | | | | | (81) | | |
Other
|
| | | | (109) | | | | | | (243) | | |
Total | | | | | (1,085) | | | | | | (1,755) | | |
| | |
For the years ended
December 31, |
| |||||||||
| | |
2018
|
| |
2019
|
| ||||||
| | |
(in thousands of euros)
|
| |||||||||
Materials
|
| | | | (5,867) | | | | | | (4,015) | | |
Personnel
|
| | | | (7,565) | | | | | | (14,385) | | |
Amortization and depreciation
|
| | | | (1,143) | | | | | | (474) | | |
Patents and fees to register a legal right
|
| | | | (4,847) | | | | | | (4,551) | | |
Third-party services
|
| | | | (19,921) | | | | | | (18,626) | | |
Maintenance and lease
|
| | | | (1,156) | | | | | | (670) | | |
Other
|
| | | | (1,223) | | | | | | (521) | | |
Total | | | | | (41,722) | | | | | | (43,242) | | |
|
| | |
For the years ended
December 31, |
| |||||||||
| | |
2018
|
| |
2019
|
| ||||||
| | |
(in thousands of euros)
|
| |||||||||
Key Programs (CV8102 and CV7202) | | | | | | | | | | | | | |
CV8102
|
| | | | (1,525) | | | | | | (4,511) | | |
CV7202
|
| | | | (1,987) | | | | | | (2,236) | | |
Other Research and Development Programs
|
| | | | (14,047) | | | | | | (14,271) | | |
Unallocated costs(1)
|
| | | | (24,163) | | | | | | (22,224) | | |
Total | | | | | (41,722) | | | | | | (43,242) | | |
| | |
For the years ended
December 31, |
| |||||||||
| | |
2018
|
| |
2019
|
| ||||||
| | |
(in thousands of euros)
|
| |||||||||
Personnel
|
| | | | (10,084) | | | | | | (31,645) | | |
Maintenance and lease costs
|
| | | | (3,239) | | | | | | (4,604) | | |
Third-party services
|
| | | | (4,006) | | | | | | (5,970) | | |
Legal and other professional services
|
| | | | (4,078) | | | | | | (2,110) | | |
Amortization and depreciation
|
| | | | (1,635) | | | | | | (2,182) | | |
Other
|
| | | | (2,247) | | | | | | (2,458) | | |
Total | | | | | (25,289) | | | | | | (48,969) | | |
| | |
For the Three Months Ended
March 31, |
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
(in thousands of euros)
(unaudited) |
| |||||||||
Net cash flow from (used in): | | | | | | | | | | | | | |
Operating activities
|
| | | | (22,630) | | | | | | (2,680) | | |
Investing activities
|
| | | | 16,723 | | | | | | (3,319) | | |
Financing activities
|
| | | | (279) | | | | | | 18,742 | | |
Effect of currency translation gains on cash and cash equivalents
|
| | | | 36 | | | | | | 47 | | |
Overall cash inflow (outflow)
|
| | | | 15,260 | | | | | | 43,474 | | |
| | |
For the years ended
December 31, |
| |||||||||
| | |
2018
|
| |
2019
|
| ||||||
| | |
(in thousands of euros)
|
| |||||||||
Net cash flow from (used in): | | | | | | | | | | | | | |
Operating activities
|
| | | | (74,110) | | | | | | (86,963) | | |
Investing activities
|
| | | | (4,264) | | | | | | 28,181 | | |
Financing activities
|
| | | | (112) | | | | | | 67,979 | | |
Effect of currency translation gains on cash and cash equivalents
|
| | | | 213 | | | | | | 107 | | |
Overall cash inflow (outflow)
|
| | | | (78,273) | | | | | | 9,304 | | |
| | |
Payment Due by Period
|
| |||||||||||||||||||||||||||||||||||||||
| | |
Total
|
| |
2020
|
| |
2021
|
| |
2022
|
| |
2023
|
| |
2024
|
| |
Thereafter
|
| |||||||||||||||||||||
| | |
(in thousands of Euros)
|
| |||||||||||||||||||||||||||||||||||||||
Convertible loans
|
| | | | (83,940)(1) | | | | | | — | | | | | | — | | | | | | (83,940) | | | | | | — | | | | | | — | | | | | | — | | |
Lease liabilities
|
| | | | (17,121) | | | | | | (2,843) | | | | | | (2,298) | | | | | | (2,298) | | | | | | (2,298) | | | | | | (2,298) | | | | | | (5,086) | | |
Total
|
| | | | (101,061) | | | | | | (2,843) | | | | | | (2,298) | | | | | | (86,238) | | | | | | (2,298) | | | | | | (2,298) | | | | | | (5,086) | | |
Patients with a least one event, n (%)
|
| |
Stratum 1
(n=16) |
| |
Stratum 2
(n=8) |
| |
Stratum 3
(n=2) |
| |
Overall
(n=26) |
| ||||||||||||
TEAE
|
| | | | 16 (100.0) | | | | | | 8 (100.0) | | | | | | 2 (100.0) | | | | | | 26 (100.0) | | |
BI1361849- and/or radiation-related AE
|
| | | | 16 (100.0) | | | | | | 8 (100.0) | | | | | | 2 (100.0) | | | | | | 26 (100.0) | | |
TEAE related to BI1361849
|
| | | | 15 (93.8) | | | | | | 8 (100.0) | | | | | | 2 (100.0) | | | | | | 26 (96.2) | | |
TEAE related to radiation
|
| | | | 4 (25.0) | | | | | | 1 (12.5) | | | | | | 0 (50.0) | | | | | | 5 (19.2) | | |
Serious TEAE
|
| | | | 7 (43.8) | | | | | | 3 (37.5) | | | | | | 1 (50.0) | | | | | | 11 (42.3) | | |
Serious BI1361849- and/or radiation-related AE
|
| | | | 1 (6.3) | | | | | | 0 | | | | | | 0 | | | | | | 1 (3.8) | | |
Related to BI1361849
|
| | | | 0 | | | | | | 0 | | | | | | 0 | | | | | | 0 | | |
Related to radiation
|
| | | | 1 (6.3) | | | | | | 0 | | | | | | 0 | | | | | | 1 (3.8) | | |
TEAE toxicity grade ≥ 3a
|
| | | | 9 (56.3) | | | | | | 4 (50.0) | | | | | | 2 (100.0) | | | | | | 15 (57.7) | | |
BI1361849- and/or radiation-related AE toxicity grade ≥ 3a
|
| | | | 2 (12.5) | | | | | | 1 (12.5) | | | | | | 1 (50.0) | | | | | | 4 (15.4) | | |
Related to BI1361849
|
| | | | 1 (6.3) | | | | | | 1 (12.5) | | | | | | 1 (50.0) | | | | | | 3 (11.5) | | |
Related to radiation
|
| | | | 1 (6.3) | | | | | | 0 | | | | | | 0 | | | | | | 1 (3.8) | | |
Serious BI1361849- and/or radiation-related AE toxicity grade ≥ 3a
|
| | | | 1 (6.3) | | | | | | 0 | | | | | | 0 | | | | | | 1 (3.8) | | |
Related to BI1361849
|
| | | | 0 | | | | | | 0 | | | | | | 0 | | | | | | 0 | | |
Related to radiation
|
| | | | 1 (6.3) | | | | | | 0 | | | | | | 0 | | | | | | 1 (3.8) | | |
TEAE leading to discontinuation
|
| | | | 4 (25.0) | | | | | | 0 | | | | | | 0 | | | | | | 4 (15.4) | | |
TEAE toxicity grade ≥ 3 leading to discontinuation
|
| | | | 2 (12.5) | | | | | | 0 | | | | | | 0 | | | | | | 2 (7.7) | | |
TEAE leading to interruption/dose modification
|
| | | | 4 (25.0) | | | | | | 0 | | | | | | 0 | | | | | | 4 (15.4) | | |
TEAE leading to death
|
| | | | 0 | | | | | | 0 | | | | | | 0 | | | | | | 0 | | |
Parameter
|
| |
Patients with response, n (%) [95% confidence interval]
|
| |||||||||||||||||||||
| | |
Stratum 1
(n=16) |
| |
Stratum 2
(n=8) |
| |
Stratum 3
(n=2) |
| |
Overall
(n=26) |
| ||||||||||||
Response (CR + PR) rate
|
| | | | 1 (6.3) | | | | | | 0 | | | | | | 0 | | | | | | 1 (3.8) | | |
| | | | | [0.2-30.2] | | | | | | [0.0-36.9] | | | | | | [0.0-84.2] | | | | | | [0.1-19.6] | | |
Best overall response
|
| | | | | | | | | | | | | | | | | | | | | | | | |
CR
|
| | | | 0 | | | | | | 0 | | | | | | 0 | | | | | | 0 | | |
| | | | | [0.0-20.6] | | | | | | [0.0-36.9] | | | | | | [0.0-84.2] | | | | | | [0.0-13.2] | | |
PR
|
| | | | 1 (6.3) | | | | | | 0 | | | | | | 0 | | | | | | 1 (3.8) | | |
| | | | | [0.2-30.2] | | | | | | [0.0-36.9] | | | | | | [0.0-84.2] | | | | | | [0.1-19.6] | | |
SD
|
| | | | 8 (50.0) | | | | | | 3 (37.5) | | | | | | 1 (50.0) | | | | | | 12 (46.2) | | |
| | | | | [24.7-75.3] | | | | | | [8.5-75.5] | | | | | | [1.3-98.7] | | | | | | [26.6-66.6] | | |
PD
|
| | | | 7 (43.8) | | | | | | 4 (50.0) | | | | | | 1(50.0) | | | | | | 12 (46.2) | | |
| | | | | [19.8-70.1] | | | | | | [15.7-84.3] | | | | | | [1.3-98.7] | | | | | | [26.6-66.6] | | |
NE
|
| | | | 0 | | | | | | 1 (12.5) | | | | | | 0 | | | | | | 1 (3.8) | | |
| | | | | [0.0-20.6] | | | | | | [0.3-52.7] | | | | | | [0.0-84.2] | | | | | | [0.1-19.6] | | |
|
|
| |
|
|
Location
|
| |
Area
(Approximate Sq. Feet) |
| |||
Germany: | | | | | | | |
Tübingen
|
| | | | 189,000 | | |
Frankfurt am Main
|
| | | | 8,600 | | |
Total
|
| | | | 197,600 | | |
United States: | | | | | | | |
Boston
|
| | | | 12,900 | | |
Total
|
| | | | 12,900 | | |
Total
|
| | | | 210,500 | | |
|
Name(1)
|
| |
Age
|
| |
Term Served
|
| |
Year in
which Term Expires |
| |
Position
|
|
| Franz-Werner Haas, LLD, LLM | | |
50
|
| |
6/2020 – Present
|
| |
2022
|
| | Chief Executive Officer | |
| Florian von der Mülbe, Ph.D., MBA | | |
48
|
| |
9/2015 – Present
|
| |
2023
|
| | Chief Production Officer | |
| Mariola Fotin-Mleczek, Ph.D. | | |
53
|
| |
9/2015 – Present
|
| |
2023
|
| | Chief Technology Officer | |
| Pierre Kemula, B.Sc. | | |
46
|
| |
11/2016 – Present
|
| |
2021
|
| | Chief Financial Officer | |
| Bernd Winterhalter, MD, Ph.D.(2) | | |
61
|
| |
6/2018 – Present
|
| |
Not
Defined |
| | Chief Development Officer (Interim) | |
| Igor Splawski, Ph.D., MSc | | |
52
|
| |
7/2020 – Present
|
| |
2023
|
| | Chief Scientific Officer | |
|
Name
|
| |
Age
|
| |
Term Served
|
| |
Year in
which Term Expires |
| |
Functions
|
|
| Baron Jean Stéphenne, MSc, MBA | | |
70
|
| |
8/2015 – Present
|
| |
2024
|
| | Chairman and Supervisory Director | |
| Ralf Clemens, MD, Ph.D. | | |
68
|
| |
8/2015 – Present
|
| |
2024
|
| | Supervisory Director | |
| Mathias Hothum, Ph.D. | | |
53
|
| |
8/2015 – Present
|
| |
2024
|
| | Supervisory Director | |
| Hans Christoph Tanner, Ph.D. | | |
69
|
| |
8/2015 – Present
|
| |
2024
|
| | Supervisory Director | |
| Friedrich von Bohlen und Halbach, Ph.D. | | |
58
|
| |
8/2015 – Present
|
| |
2022
|
| | Vice Chairman and Supervisory Director | |
| Timothy M. Wright, MD | | |
64
|
| |
6/2019 – Present
|
| |
2022
|
| | Supervisory Director | |
| Craig A. Tooman, MBA | | |
54
|
| |
6/2019 – Present
|
| |
2022
|
| | Supervisory Director | |
| Viola Bronsema, Ph.D. | | |
57
|
| |
–
|
| |
2024
|
| | Supervisory Director | |
Name
|
| |
Fixed
Compensation (€) |
| |
Attendance
Fees (€) |
| |
Total
Compensation (€) |
| |||||||||
Baron Jean Stéphenne
|
| | | | 82,500 | | | |
—
|
| | | | 82,500 | | | |||
Ralf Clemens
|
| | | | 55,000 | | | | | | 27,500 | | | | | | 82,500 | | |
Mathias Hothum
|
| | | | 55,000 | | | |
—
|
| | | | 55,000 | | | |||
Hans Cristoph Tanner
|
| | | | 55,000 | | | | | | 27,500 | | | | | | 82,500 | | |
Friedrich von Bohlen und Halbach
|
| | | | 55,000 | | | |
—
|
| | | | 55,000 | | | |||
Ingmar Hoerr(1)
|
| | | | 110,000 | | | |
—
|
| | | | 110,000 | | | |||
Timothy M. Wright
|
| | | | 21,389 | | | |
—
|
| | | | 21,388 | | | |||
Craig A. Tooman
|
| | | | 21,389 | | | |
—
|
| | | | 21,388 | | |
Name
|
| |
Number
of Shares |
| |
Percentage
of Shares Outstanding |
| |
Voting
Rights |
| ||||||
Baron Jean Stéphenne
|
| |
—
|
| |
—
|
| |
—
|
| ||||||
Ralf Clemens
|
| |
—
|
| |
—
|
| |
—
|
| ||||||
Mathias Hothum
|
| |
—
|
| |
—
|
| |
—
|
| ||||||
Hans Cristoph Tanner
|
| | | | 1,414 | | | | | | 0.20% | | | |
(2)
|
|
Friedrich von Bohlen und Halbach
|
| | | | 1,818 | | | | | | 0.24% | | | |
(3)
|
|
Ingmar Hoerr(1)
|
| | | | 8,485 | | | | | | 1.14% | | | |
(4)
|
|
Timothy M. Wright
|
| |
—
|
| |
—
|
| |
—
|
| ||||||
Craig A. Tooman
|
| |
—
|
| |
—
|
| |
—
|
|
Name
|
| |
Number of
Options |
| |
Title
|
| |
Amount of
Securities (€) |
| |
Exercise
Price (€) |
| |
Purchase
Price (€) |
| |
Expiration
Date |
| |||||||||||||||
Baron Jean Stéphenne
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Ralf Clemens
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Mathias Hothum
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Hans Cristoph Tanner
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Friedrich von Bohlen und Halbach
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Ingmar Hoerr(1)
|
| | | | 2,776 | | | |
Share Option Awards
|
| | | | 2,776 | | | | | | 1.00 | | | | | | 2,776 | | | | | | 12/31/2021 | | |
Timothy M. Wright
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Craig A. Tooman
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
|
Name*
|
| |
Salary
(€) |
| |
Bonus
(€)(3) |
| |
All Other
Compensation(4) (€) |
| |
Total
Compensation (€) |
| ||||||||||||
Daniel L. Menichella(1)(2)
|
| | | | 508,455(3) | | | | | | 206,250 | | | | | | 37,098 | | | | | | 751,803 | | |
Florian von der Mülbe
|
| | | | 250,000 | | | | | | 84,375 | | | | | | 25,634 | | | | | | 360,009 | | |
Mariola Fotin-Mleczek
|
| | | | 210,000 | | | | | | 70,875 | | | | | | 12,977 | | | | | | 293,852 | | |
Franz-Werner Haas
|
| | | | 247,000 | | | | | | 111,150 | | | | | | 25,442 | | | | | | 383,592 | | |
Pierre Kemula(5)
|
| | | | 250,000 | | | | | | 84,375 | | | | | | 146,103 | | | | | | 480,478 | | |
Bernd Winterhalter(6)
|
| |
—
|
| |
—
|
| | | | 333,601 | | | | | | 333,601 | | | ||||||
Dimitris Voliotis(7)(2)
|
| | | | 425,208 | | | | | | 168,760 | | | |
—
|
| | | | 593,958 | | | |||
Ulrike Gnad-Vogt(8)
|
| | | | 187,500 | | | | | | 63,281 | | | | | | 9,732 | | | | | | 260,513 | | |
Name*
|
| |
Number of
Shares |
| |
Percentage of
Shares Outstanding |
| |
Voting
Rights |
| ||||||
Daniel L. Menichella(1)
|
| |
—
|
| |
—
|
| |
—
|
| ||||||
Florian von der Mülbe
|
| | | | 6,162(2) | | | | | | 0.83% | | | |
(3)
|
|
Mariola Fotin-Mleczek
|
| |
—
|
| |
—
|
| |
—
|
| ||||||
Franz-Werner Haas
|
| |
—
|
| |
—
|
| |
—
|
| ||||||
Pierre Kemula
|
| |
—
|
| |
—
|
| |
—
|
| ||||||
Bernd Winterhalter(4)
|
| |
—
|
| |
—
|
| |
—
|
| ||||||
Dimitris Voliotis
|
| |
—
|
| |
—
|
| |
—
|
| ||||||
Ulrike Gnad-Vogt
|
| |
—
|
| |
—
|
| |
—
|
|
Name*
|
| |
Number of
Options |
| |
Title
|
| |
Amount of
Securities (€) |
| |
Exercise
Price (€) |
| |
Purchase
Price (€) |
| |
Expiration
Date |
| |||||||||||||||
Daniel Menichella(1)
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Florian von der Mülbe
|
| | | | 2,017 | | | |
Share Option Awards
|
| | | | 2,017 | | | | | | 1.00 | | | | | | 2,017 | | | | | | 12/31/2021 | | |
Mariola Fotin-Mleczek
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Franz-Werner Haas
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Pierre Kemula
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Bernd Winterhalter(2)
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Dimitris Voliotis
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |||||||||||||||
Ulrike Gnad-Vogt
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
|
Name
|
| |
Program
|
| |
VS
Points Granted |
| |
Max
Vested Points |
| |
Start of
Vesting Period (Only for New Participants) |
| |
Grant date
(Date of Allocation Letter) |
| |
Vesting
Period |
| |
VSOP
Plan |
| |
Valid
until |
| |||||||||||||||
Florian von der Mülbe
|
| |
VS
|
| | | | 778 | | | | | | 778 | | | | | | | | | | | | 01.01.2009 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Florian von der Mülbe
|
| |
VS
|
| | | | 3,486 | | | | | | 3,486 | | | | | | | | | | | | 01.01.2011 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Florian von der Mülbe
|
| |
VS
|
| | | | 736 | | | | | | 736 | | | | | | | | | | | | 01.01.2013 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Florian von der Mülbe
|
| |
VS
|
| | | | 1,522 | | | | | | 1,522 | | | | | | | | | | | | 01.01.2015 | | | |
12
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Florian von der Mülbe
|
| |
VS
|
| | | | 6,100 | | | | | | 6,100 | | | | | | | | | | | | 11.12.2015 | | | |
12
|
| |
Prior VSOP IPO only
|
| | | | 31.12.2025 | | |
Mariola Fotin-Mleczek
|
| |
VS
|
| | | | 316 | | | | | | 316 | | | | | | | | | | | | 01.01.2009 | | | |
60
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Mariola Fotin-Mleczek
|
| |
VS
|
| | | | 250 | | | | | | 250 | | | | | | | | | | | | 01.01.2013 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Mariola Fotin-Mleczek
|
| |
VS
|
| | | | 250 | | | | | | 250 | | | | | | | | | | | | 01.01.2014 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Mariola Fotin-Mleczek
|
| |
VS
|
| | | | 250 | | | | | | 250 | | | | | | | | | | | | 01.01.2015 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Mariola Fotin-Mleczek
|
| |
VS
|
| | | | 2,327 | | | | | | 2,327 | | | | | | | | | | | | 01.01.2015 | | | |
12
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Ulrike Gnad-Vogt
|
| |
VS
|
| | | | 682 | | | | | | 682 | | | | | | | | | | | | 01.07.2011 | | | |
60
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Ulrike Gnad-Vogt
|
| |
VS
|
| | | | 250 | | | | | | 250 | | | | | | | | | | | | 01.01.2013 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Ulrike Gnad-Vogt
|
| |
VS
|
| | | | 250 | | | | | | 250 | | | | | | | | | | | | 01.01.2014 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Ulrike Gnad-Vogt
|
| |
VS
|
| | | | 250 | | | | | | 250 | | | | | | | | | | | | 01.01.2015 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Ulrike Gnad-Vogt
|
| |
VS
|
| | | | 1,961 | | | | | | 1,961 | | | | | | | | | | | | 01.01.2015 | | | |
12
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Franz-Werner Haas
|
| |
VS
|
| | | | 1,400 | | | | | | 1,400 | | | | | | | | | | | | 01.06.2012 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Franz-Werner Haas
|
| |
VS
|
| | | | 3,600 | | | | | | 3,600 | | | | | | | | | | | | 01.01.2013 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Franz-Werner Haas
|
| |
VS
|
| | | | 1,522 | | | | | | 1,522 | | | | | | | | | | | | 01.01.2015 | | | |
12
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Pierre Kemula
|
| |
VS
|
| | | | 5,000 | | | | | | 5,000 | | | | | | 01.10.2016 | | | | | | 18.04.2019 | | | |
36
|
| |
Prior VSOP
|
| | | | 31.12.2025 | | |
Daniel Menichella*
|
| |
*
|
| | | | 29,053 | | | | | | 29,053 | | | | | | 08.01.2017 | | | | | | 14.10.2019 | | | |
48
|
| |
*
|
| | | | 08.01.2027 | | |
| | |
Shares beneficially
owned prior to the corporate reorganization and the Offering(3) |
| |
Common shares beneficially
owned after giving effect to the corporate reorganization and the Offering(3) |
| ||||||||||||||||||||||||
| | | | | | | | | | | | | | |
No exercise
of underwriter’s option |
| |
Full exercise
of underwriter’s option |
| ||||||||||||
Shareholder
|
| |
Number
|
| |
Percentage
|
| |
Number
|
| |
Percentage
|
| |
Percentage
|
| |||||||||||||||
5% Shareholders: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Dievini Hopp BioTech holding
GmbH & Co. KG(1) |
| | | | 658,576 | | | | | | 53.7% | | | | | | 87,641,884 | | | | | | 49.7% | | | | | | 49.1% | | |
Kreditanstalt für Wiederaufbau(2)
|
| | | | 224,466 | | | | | | 18.3% | | | | | | 29,871,441 | | | | | | 16.9% | | | | | | 16.7% | | |
Glaxo Group Limited
|
| | | | 112,233 | | | | | | 9.2% | | | | | | 14,935,721 | | | | | | 8.5% | | | | | | 8.4% | | |
| | |
Shares beneficially
owned prior to the corporate reorganization and the Offering(3) |
| |
Common shares beneficially
owned after giving effect to the corporate reorganization and the Offering(3) |
| ||||||||||||||||||||||||
| | | | | | | | | | | | | | |
No exercise
of underwriter’s option |
| |
Full exercise
of underwriter’s option |
| ||||||||||||
Shareholder
|
| |
Number
|
| |
Percentage
|
| |
Number
|
| |
Percentage
|
| |
Percentage
|
| |||||||||||||||
Managing Directors: | | | | | | | |||||||||||||||||||||||||
Florian von der Mülbe, Ph.D., MBA
|
| | | | 9,441 | | | | | | *% | | | | | | 1,256,414 | | | | | | *% | | | | | | *% | | |
Mariola Fotin-Mleczek, Ph.D.
|
| | | | 339 | | | | | | *% | | | | | | 45,153 | | | | | | *% | | | | | | *% | | |
Franz-Werner Haas, LLD, LLM
|
| | | | 652 | | | | | | *% | | | | | | 86,793 | | | | | | *% | | | | | | *% | | |
Pierre Kemula, B.Sc.
|
| | | | 500 | | | | | | *% | | | | | | 66,539 | | | | | | *% | | | | | | *% | | |
Supervisory Directors: | | | | | | | |||||||||||||||||||||||||
Ralf Clemens, MD, Ph.D.
|
| | | | — | | | | | | —% | | | | | | — | | | | | | —% | | | | | | —% | | |
Mathias Hothum, Ph.D.
|
| | | | — | | | | | | —% | | | | | | — | | | | | | —% | | | | | | —% | | |
Baron Jean Stéphenne, MSc, MBA
|
| | | | — | | | | | | —% | | | | | | — | | | | | | —% | | | | | | —% | | |
Hans Cristoph Tanner, Ph.D.
|
| | | | 1,414 | | | | | | *% | | | | | | 188,172 | | | | | | *% | | | | | | *% | | |
Friedrich von Bohlen und Halbach, Ph.D.
|
| | | | 1,818 | | | | | | *% | | | | | | 241,935 | | | | | | *% | | | | | | *% | | |
Timothy M. Wright, MD
|
| | | | — | | | | | | —% | | | | | | — | | | | | | —% | | | | | | —% | | |
Craig A. Tooman, MBA
|
| | | | — | | | | | | —% | | | | | | — | | | | | | —% | | | | | | —% | | |
All Managing Directors and Supervisory Directors as a Group:
|
| | | | 14,165 | | | | | | 1.2% | | | | | | 1,885,007 | | | | | | 1.1% | | | | | | 1.1% | | |
Underwriter
|
| |
Number
of Shares |
| |||
BofA Securities, Inc.
|
| | | | | | |
Jefferies LLC
|
| | | | | | |
Credit Suisse Securities (USA) LLC
|
| | | | | | |
Berenberg Capital Markets LLC
|
| | | | | | |
Kempen & Co U.S.A., Inc
|
| | | | | | |
Total
|
| | | | 13,333,333 | | |
| | |
Per Share
|
| |
Without Option
|
| |
With Option
|
| |||||||||
Public offering price
|
| | | $ | | | | | $ | | | | | $ | | | |||
Underwriting discount
|
| | | $ | | | | | $ | | | | | $ | | | |||
Proceeds, before expenses, to us
|
| | | $ | | | | | $ | | | | | $ | | | |
Expenses
|
| |
Amount
|
| |||
U.S. Securities and Exchange Commission registration fee
|
| | | $ | 31,844 | | |
Nasdaq listing fee
|
| | | | 295,000 | | |
FINRA filing fee
|
| | | | 37,950 | | |
Printing and engraving expenses
|
| | | | 250,000 | | |
Legal fees and expenses
|
| | | | 1,750,000 | | |
Accounting fees and expenses
|
| | | | 881,273 | | |
Miscellaneous costs
|
| | | | 58,491 | | |
Total
|
| | | $ | 3,304,558 | | |
| | | | | F-2 | | | |
| | | | | F-3 | | | |
| | | | | F-4 | | | |
| | | | | F-5 | | | |
| | | | | F-6 | | |
| | | | | F-15 | | | |
| | | | | F-16 | | | |
| | | | | F-17 | | | |
| | | | | F-18 | | | |
| | | | | F-19 | | | |
| | | | | F-20 | | |
| | | | | | | | |
Three months ended March 31,
|
| |||||||||
| | |
Note
|
| |
2019
|
| |
2020
|
| |||||||||
(in thousands of EUR, except per share data)
|
| | | | | | | |
(unaudited)
|
| |||||||||
Revenue
|
| | | | | | | | | | 3,156 | | | | | | 3,119 | | |
Cost of sales
|
| | | | 3.2 | | | | | | (7,558) | | | | | | (5,475) | | |
Selling and distribution expenses
|
| | | | 3.3 | | | | | | (198) | | | | | | (330) | | |
Research and development expenses
|
| | | | 3.4 | | | | | | (10,862) | | | | | | (10,902) | | |
General and administrative expenses
|
| | | | 3.5 | | | | | | (6,887) | | | | | | (11,495) | | |
Other operating income
|
| | | | 3.6 | | | | | | 732 | | | | | | 1,995 | | |
Other operating expenses
|
| | | | | | | | | | (108) | | | | | | (127) | | |
Operating loss
|
| | | | | | | | | | (21,725) | | | | | | (23,216) | | |
Finance income
|
| | | | | | | | | | 649 | | | | | | 1,041 | | |
Finance expenses
|
| | | | | | | | | | (90) | | | | | | (1,719) | | |
Loss before income tax
|
| | | | | | | | | | (21,166) | | | | | | (23,894) | | |
Income tax benefit / (expense)
|
| | | | | | | | | | (142) | | | | | | 44 | | |
Net loss for the period
|
| | | | | | | | | | (21,308) | | | | | | (23,850) | | |
Other comprehensive income:
|
| | | | | | | | | | | | | | | | | | |
Items that may be subsequently reclassified to profit or loss
|
| | | | | | | | | | | | | | | | | | |
Foreign currency adjustments
|
| | | | | | | | | | 36 | | | | | | 48 | | |
Total comprehensive loss for the period
|
| | | | | | | | | | (21,272) | | | | | | (23,802) | | |
Net loss per share (basic and diluted)
|
| | | | | | | | | | (29.32) | | | | | | (32.48) | | |
| | | | | | | | |
As at
|
| |||||||||
| | |
Note
|
| |
December 31,
2019 |
| |
March 31,
2020 |
| |||||||||
(in thousands of EUR)
|
| | | | | | | | | | | | | |
(unaudited)
|
| |||
Assets | | | | | | | | | | | | | | | | | | | |
Non-current assets
|
| | | | | | | | | | | | | | | | | | |
Intangible assets
|
| | | | | | | | | | 5,698 | | | | | | 6,120 | | |
Property, plant and equipment
|
| | | | 6.1 | | | | | | 48,075 | | | | | | 50,356 | | |
Right-of-use assets
|
| | | | 8 | | | | | | 13,611 | | | | | | 36,876 | | |
Other assets
|
| | | | 6.2 | | | | | | 6,061 | | | | | | 2,027 | | |
Deferred tax assets
|
| | | | | | | | | | — | | | | | | 169 | | |
Total non-current assets
|
| | | | | | | | | | 73,445 | | | | | | 95,548 | | |
Current assets
|
| | | | | | | | | | | | | | | | | | |
Inventories
|
| | | | 9 | | | | | | 6,197 | | | | | | 5,425 | | |
Trade receivables
|
| | | | 3 | | | | | | 15,690 | | | | | | 2,410 | | |
Contract assets
|
| | | | 3 | | | | | | 1,463 | | | | | | 2,422 | | |
Other financial assets
|
| | | | 10 | | | | | | 1,458 | | | | | | 1,418 | | |
Prepaid expenses and other assets
|
| | | | 7 | | | | | | 1,683 | | | | | | 4,959 | | |
Cash and cash equivalents
|
| | | | | | | | | | 30,684 | | | | | | 43,474 | | |
Total current assets
|
| | | | | | | | | | 57,175 | | | | | | 60,108 | | |
Total assets
|
| | | | | | | | | | 130,620 | | | | | | 155,656 | | |
Equity and liabilities
|
| | | | | | | | | | | | | | | | | | |
Equity | | | | | | | | | | | | | | | | | | | |
Issued capital
|
| | | | 4 | | | | | | 727 | | | | | | 743 | | |
Capital reserve
|
| | | | 4, 5 | | | | | | 472,396 | | | | | | 495,327 | | |
Accumulated deficit
|
| | | | | | | | | | (515,947) | | | | | | (539,797) | | |
Other comprehensive income
|
| | | | | | | | | | 22 | | | | | | 70 | | |
Total equity
|
| | | | | | | | | | (42,802) | | | | | | (43,657) | | |
Non-current liabilities
|
| | | | | | | | | | | | | | | | | | |
Convertible loans
|
| | | | 11 | | | | | | 65,018 | | | | | | 67,078 | | |
Lease liabilities
|
| | | | 8 | | | | | | 12,126 | | | | | | 29,320 | | |
Contract liabilities
|
| | | | 3 | | | | | | 66,040 | | | | | | 64,002 | | |
Deferred tax liabilities
|
| | | | | | | | | | 1,623 | | | | | | 1,636 | | |
Other liabilities
|
| | | | | | | | | | 529 | | | | | | 784 | | |
Total non-current liabilities
|
| | | | | | | | | | 145,336 | | | | | | 162,820 | | |
Current liabilities
|
| | | | | | | | | | | | | | | | | | |
Lease liabilities
|
| | | | 8 | | | | | | 2,004 | | | | | | 3,088 | | |
Trade and other payables
|
| | | | | | | | | | 6,475 | | | | | | 6,078 | | |
Other liabilities
|
| | | | 3.6 | | | | | | 12,015 | | | | | | 19,453 | | |
Income taxes payable
|
| | | | 12 | | | | | | 111 | | | | | | 226 | | |
Contract liabilities
|
| | | | 3 | | | | | | 7,481 | | | | | | 7,648 | | |
Total current liabilities
|
| | | | | | | | | | 28,086 | | | | | | 36,493 | | |
Total liabilities
|
| | | | | | | | | | 173,422 | | | | | | 199,313 | | |
Total equity and liabilities
|
| | | | | | | | | | 130,620 | | | | | | 155,656 | | |
(in thousands of EUR)
|
| |
Issued
capital |
| |
Capital
reserve |
| |
Accumulated
deficit |
| |
Currency
translation reserve |
| |
Total equity
|
| |||||||||||||||
Balance as of January 1, 2020
|
| | | | 727 | | | | | | 472,396 | | | | | | (515,947) | | | | | | 22 | | | | | | (42,802) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (23,850) | | | | | | — | | | | | | (23,850) | | |
Other comprehensive income (loss)
|
| | | | — | | | | | | — | | | | | | — | | | | | | 48 | | | | | | 48 | | |
Total comprehensive income (loss)
|
| | | | — | | | | | | — | | | | | | (23,850) | | | | | | 48 | | | | | | (23,802) | | |
Share-based payment expense
|
| | | | — | | | | | | 2,947 | | | | | | — | | | | | | — | | | | | | 2,947 | | |
Issuance of share capital
|
| | | | 16 | | | | | | 19,984 | | | | | | — | | | | | | — | | | | | | 20,000 | | |
Balance as of March 31, 2020 (unaudited)
|
| | | | 743 | | | | | | 495,327 | | | | | | (539,797) | | | | | | 70 | | | | | | (43,657) | | |
|
(in thousands of EUR)
|
| |
Issued
capital |
| |
Capital
reserve |
| |
Accumulated
deficit |
| |
Currency
translation reserve |
| |
Total equity
|
|
Balance as of January 1, 2019
|
| |
727
|
| |
447,440
|
| |
(416,074)
|
| |
(10)
|
| |
32,083
|
|
Net loss
|
| |
—
|
| |
—
|
| |
(21,308)
|
| |
—
|
| |
(21,308)
|
|
Other comprehensive income (loss)
|
| |
—
|
| |
—
|
| |
—
|
| |
36
|
| |
36
|
|
Total comprehensive income (loss)
|
| |
—
|
| |
—
|
| |
(21,308)
|
| |
36
|
| |
(21,272)
|
|
Balance as of March 31, 2019 (unaudited)
|
| |
727
|
| |
447,440
|
| |
(437,382)
|
| |
26
|
| |
10,811
|
|
| | |
For the three months ended March 31,
|
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
(in thousands of EUR)
|
| |
(unaudited)
|
| |||||||||
Operating activities
|
| | | | | | | | | | | | |
Loss before income tax
|
| | |
|
(21,308)
|
| | | |
|
(23,850)
|
| |
Adjustments to reconcile loss before tax to net cash flows
|
| | | | | | | | | | | | |
Finance income
|
| | | | (649) | | | | | | (1,041) | | |
Finance expense
|
| | | | 90 | | | | | | 1,719 | | |
Depreciation and amortization
|
| | | | 1,561 | | | | | | 1,831 | | |
Share-based payment expense
|
| | | | — | | | | | | 2,947 | | |
Working capital changes
|
| | | | | | | | | | | | |
Decrease / (increase) in trade receivables and contract assets
|
| | | | 3,476 | | | | | | 13,201 | | |
Decrease / (increase) in inventory
|
| | | | (1,401) | | | | | | 772 | | |
Decrease / (increase) in other assets
|
| | | | 129 | | | | | | (3,357) | | |
Receipts from grants from government agencies and similar bodies
|
| | | | 3,477 | | | | | | 11,717 | | |
(Decrease) / increase in trade and other payables and contract liabilities
|
| | | | (8,208) | | | | | | (6,430) | | |
(Decrease) / Increase in other current financial and other liabilities
|
| | | | 417 | | | | | | 99 | | |
Interest paid
|
| | | | (214) | | | | | | (288) | | |
Net cash flow used in operating activities
|
| | | | (22,630) | | | | | | (2,680) | | |
Investing activities
|
| | | | | | | | | | | | |
Purchase of property, plant and equipment
|
| | | | (1,956) | | | | | | (4,490) | | |
Purchase of intangible assets
|
| | | | (290) | | | | | | (776) | | |
Proceeds from asset-related grants
|
| | | | — | | | | | | 1,907 | | |
Proceeds from sale of other financial assets
|
| | | | 18,971 | | | | | | 40 | | |
Net cash flow provided by (used in) investing activities
|
| | | | 16,723 | | | | | | (3,319) | | |
Financing activities
|
| | | | | | | | | | | | |
Equity-related transaction costs
|
| | | | — | | | | | | (626) | | |
Payments on lease obligations
|
| | | | (279) | | | | | | (632) | | |
Proceeds from issuance of share capital
|
| | | | — | | | | | | 20,000 | | |
Net cash flow provided by (used in) financing activities
|
| | | | (279) | | | | | | 18,742 | | |
Currency translation gains (losses) on cash and cash equivalents
|
| | | | 36 | | | | | | 47 | | |
Increase (decrease) in cash and cash equivalents
|
| | | | (6,156) | | | | | | 12,743 | | |
Cash and cash equivalents, beginning of period
|
| | | | 21,380 | | | | | | 30,684 | | |
Cash and cash equivalents, end of period
|
| | | | 15,260 | | | | | | 43,474 | | |
| | |
Three Months ended
March 31, |
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
United States | | | | | | | | | | | | | |
Eli Lilly and Company
|
| | | | 2,592 | | | | | | 1,993 | | |
Germany | | | | | | | | | | | | | |
Boehringer Ingelheim
|
| | | | 467 | | | | | | 482 | | |
Switzerland | | | | | | | | | | | | | |
CRISPR
|
| | | | 97 | | | | | | 78 | | |
Netherlands | | | | | | | | | | | | | |
Genmab
|
| | | | — | | | | | | 566 | | |
Total | | | | | 3,156 | | | | | | 3,119 | | |
| | |
Upfront payments
|
| |
Upfront payments
included in contract liabilities at March 31, 2019 |
| |
Upfront payments
included in contract liabilities at March 31, 2020 |
| |
Revenue recognized
from upfront payments |
| |||||||||||||||
| | |
March 31, 2020
|
| |
March 31, 2019
|
| |
March 31, 2020
|
| ||||||||||||||||||
Customer
|
| |
(in thousands)
|
| |
(EUR k)
|
| |
(EUR k)
|
| |
(EUR k)
|
| |||||||||||||||
Eli Lilly and Company
|
| | USD 50,000 (EUR 42,200) * | | | | | 37,492 | | | | | | 33,975 | | | | | | 879 | | | | | | 879 | | |
CRISPR
|
| | USD 3,000 (EUR 2,524) * | | | | | 2,091 | | | | | | 1,782 | | | | | | 77 | | | | | | 77 | | |
Boehringer Ingelheim
|
| | EUR 30,000 | | | | | 17,312 | | | | | | 15,403 | | | | | | 509 | | | | | | 467 | | |
Genmab
|
| | USD 10,000 (EUR 8,937) * | | | | | — | | | | | | 8,490 | | | | | | — | | | | | | 447 | | |
Total | | | | | | | | 56,895 | | | | | | 59,650 | | | | | | 1,465 | | | | | | 1,870 | | |
| | |
December 31,
2019 |
| |
March 31,
2020 |
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Trade receivables
|
| | | | 15,690 | | | | | | 2,410 | | |
Contract assets
|
| | | | 1,463 | | | | | | 2,422 | | |
Contract liabilities
|
| | | | 73,521 | | | | | | 71,650 | | |
| | |
Three months ended March 31,
|
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Personnel
|
| | | | (2,488) | | | | | | (2,821) | | |
Materials
|
| | | | (2,928) | | | | | | (1,550) | | |
Third-party services
|
| | | | (1,489) | | | | | | (675) | | |
Maintenance and lease
|
| | | | (206) | | | | | | (159) | | |
Amortization and depreciation
|
| | | | (401) | | | | | | (246) | | |
Other
|
| | | | (46) | | | | | | (24) | | |
Total | | | | | (7,558) | | | | | | (5,475) | | |
| | |
Three months ended March 31,
|
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Personnel
|
| | | | (79) | | | | | | (240) | | |
Maintenance and lease
|
| | | | (88) | | | | | | — | | |
Amortization and depreciation
|
| | | | (19) | | | | | | (41) | | |
Other
|
| | | | (12) | | | | | | (49) | | |
Total | | | | | (198) | | | | | | (330) | | |
| | |
Three months ended March 31,
|
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Materials
|
| | | | (963) | | | | | | (1,165) | | |
Personnel
|
| | | | (3,251) | | | | | | (3,686) | | |
Amortization and depreciation
|
| | | | (129) | | | | | | (351) | | |
Patents and fees to register a legal right
|
| | | | (1,202) | | | | | | (823) | | |
Third-party services
|
| | | | (5,094) | | | | | | (4,263) | | |
Maintenance and lease
|
| | | | (111) | | | | | | (454) | | |
Other
|
| | | | (112) | | | | | | (160) | | |
Total | | | | | (10,862) | | | | | | (10,902) | | |
|
| | |
Three months ended March 31,
|
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Personnel
|
| | | | (3,936) | | | | | | (7,055) | | |
Maintenance and lease
|
| | | | (990) | | | | | | (1,333) | | |
Third-party services
|
| | | | (571) | | | | | | (1,420) | | |
Legal and other professional services
|
| | | | (154) | | | | | | (427) | | |
Amortization and depreciation
|
| | | | (426) | | | | | | (418) | | |
Other
|
| | | | (810) | | | | | | (842) | | |
Total | | | | | (6,887) | | | | | | (11,495) | | |
| | |
Three months ended March 31,
|
| |||||||||
| | |
2019
|
| |
2020
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Grants and other cost reimbursements from government agencies and similar bodies
|
| | | | 531 | | | | | | 1,623 | | |
Other
|
| | | | 201 | | | | | | 372 | | |
Total | | | | | 732 | | | | | | 1,995 | | |
Series
|
| |
Shares as of
December 31, 2019 |
| |
Shares as of
March 31, 2020 |
| ||||||
A
|
| | | | 23,400 | | | | | | 23,400 | | |
B
|
| | | | 688,692 | | | | | | 705,037 | | |
C
|
| | | | 14,500 | | | | | | 14,500 | | |
Total | | | | | 726,592 | | | | | | 742,937 | | |
|
/s/ Dr. Elia Napolitano
Wirtschaftsprüfer (German Public Auditor) |
| |
/s/ Steffen Maurer
Wirtschaftsprüfer (German Public Auditor) |
|
| | | | | | | | |
Years ended December 31,
|
| |||||||||
(in thousands of EUR, except per share data)
|
| |
Note
|
| |
2018
|
| |
2019
|
| |||||||||
Revenue
|
| | | | 3.1 | | | | | | 12,871 | | | | | | 17,416 | | |
Cost of sales
|
| | | | 3.2 | | | | | | (17,744) | | | | | | (27,983) | | |
Selling and distribution expenses
|
| | | | 3.3 | | | | | | (1,085) | | | | | | (1,755) | | |
Research and development expenses
|
| | | | 3.4 | | | | | | (41,722) | | | | | | (43,242) | | |
General and administrative expenses
|
| | | | 3.5 | | | | | | (25,289) | | | | | | (48,969) | | |
Other operating income
|
| | | | 3.6 | | | | | | 808 | | | | | | 5,587 | | |
Other operating expenses
|
| | | | 3.7 | | | | | | (663) | | | | | | (552) | | |
Operating loss
|
| | | | | | | | | | (72,824) | | | | | | (99,498) | | |
Finance income
|
| | | | | | | | | | 1,968 | | | | | | 833 | | |
Finance expenses
|
| | | | | | | | | | (275) | | | | | | (1,460) | | |
Loss before income tax
|
| | | | | | | | | | (71,131) | | | | | | (100,125) | | |
Income tax benefit / (expense)
|
| | | | 14 | | | | | | (110) | | | | | | 252 | | |
Net loss for the year
|
| | | | | | | | | | (71,241) | | | | | | (99,873) | | |
Other comprehensive income | | | | | | | | | | | | | | | | | | | |
Items that may be subsequently reclassified to profit or loss | | | | | | | | | | | | | | | | | | | |
Foreign currency adjustments
|
| | | | | | | | | | 66 | | | | | | 32 | | |
Total comprehensive loss for the year
|
| | | | | | | | | | (71,175) | | | | | | (99,841) | | |
Net loss per share (basic and diluted)
|
| | | | | | | | | | (98.05) | | | | | | (137.45) | | |
| | | | | | | | |
December 31,
|
| |||||||||
(in thousands of EUR)
|
| |
Note
|
| |
2018
|
| |
2019
|
| |||||||||
Assets | | | | | | | | | | | | | | | | | | | |
Non-current assets | | | | | | | | | | | | | | | | | | | |
Intangible assets
|
| | | | 4 | | | | | | 6,213 | | | | | | 5,698 | | |
Property, plant and equipment
|
| | | | 4 | | | | | | 40,472 | | | | | | 48,075 | | |
Other assets
|
| | | | 4 | | | | | | 5,771 | | | | | | 6,061 | | |
Right-of-use assets
|
| | | | 2 | | | | | | — | | | | | | 13,611 | | |
Deferred tax assets
|
| | | | 14 | | | | | | 133 | | | | | | — | | |
Total non-current assets
|
| | | | | | | | | | 52,589 | | | | | | 73,445 | | |
Current assets | | | | | | | | | | | | | | | | | | | |
Inventories
|
| | | | 5 | | | | | | 2,951 | | | | | | 6,197 | | |
Trade receivables
|
| | | | 3 | | | | | | 5,476 | | | | | | 15,690 | | |
Contract assets
|
| | | | 3 | | | | | | 1,382 | | | | | | 1,463 | | |
Other financial assets
|
| | | | 6 | | | | | | 39,253 | | | | | | 1,458 | | |
Prepaid expenses and other assets
|
| | | | 7 | | | | | | 2,628 | | | | | | 1,683 | | |
Cash and cash equivalents
|
| | | | | | | | | | 21,380 | | | | | | 30,684 | | |
Total current assets
|
| | | | | | | | | | 73,070 | | | | | | 57,175 | | |
Total assets
|
| | | | | | | | | | 125,659 | | | | | | 130,620 | | |
Equity and liabilities | | | | | | | | | | | | | | | | | | | |
Equity | | | | | | | | | | | | | | | | | | | |
Issued capital
|
| | | | | | | | | | 727 | | | | | | 727 | | |
Capital reserve
|
| | | | | | | | | | 447,440 | | | | | | 472,396 | | |
Accumulated deficit
|
| | | | | | | | | | (416,074) | | | | | | (515,947) | | |
Other comprehensive income
|
| | | | | | | | | | (10) | | | | | | 22 | | |
Total equity
|
| | | | 8 | | | | | | 32,083 | | | | | | (42,802) | | |
Non-current liabilities | | | | | | | | | | | | | | | | | | | |
Convertible loans
|
| | | | 12 | | | | | | — | | | | | | 65,018 | | |
Lease liabilities
|
| | | | 2 | | | | | | — | | | | | | 12,126 | | |
Contract liabilities
|
| | | | 3 | | | | | | 64,583 | | | | | | 66,040 | | |
Deferred tax liabilities
|
| | | | 13 | | | | | | — | | | | | | 1,623 | | |
Other liabilities
|
| | | | | | | | | | 863 | | | | | | 529 | | |
Total non-current liabilities
|
| | | | | | | | | | 65,446 | | | | | | 145,336 | | |
Current liabilities | | | | | | | | | | | | | | | | | | | |
Other financial liabilities
|
| | | | | | | | | | 77 | | | | | | — | | |
Lease liabilities
|
| | | | 2 | | | | | | — | | | | | | 2,004 | | |
Trade and other payables
|
| | | | 11 | | | | | | 10,913 | | | | | | 6,475 | | |
Other liabilities
|
| | | | 12 | | | | | | 11,146 | | | | | | 12,015 | | |
Income Taxes payable
|
| | | | 13 | | | | | | 217 | | | | | | 111 | | |
Contract liabilities
|
| | | | 3 | | | | | | 5,777 | | | | | | 7,481 | | |
Total current liabilities
|
| | | | | | | | | | 28,130 | | | | | | 28,086 | | |
Total liabilities
|
| | | | | | | | | | 93,576 | | | | | | 173,422 | | |
Total equity and liabilities
|
| | | | | | | | | | 125,659 | | | | | | 130,620 | | |
(in thousands of EUR)
|
| |
Issued
capital |
| |
Capital
reserve |
| |
Accumulated
deficit |
| |
Currency
translation reserve |
| |
Total equity
|
| |||||||||||||||
Balance as of January 1, 2018
|
| | | | 727 | | | | | | 447,438 | | | | | | (345,320) | | | | | | (76) | | | | | | 102,769 | | |
Effects from the first-time adoption of IFRS 9
|
| | | | — | | | | | | — | | | | | | (183) | | | | | | — | | | | | | (183) | | |
Effects from the first-time adoption of IFRS 15
|
| | | | — | | | | | | — | | | | | | 670 | | | | | | — | | | | | | 670 | | |
Adjusted balance as of January 1, 2018
|
| | | | 727 | | | | | | 447,438 | | | | | | (344,833) | | | | | | (76) | | | | | | 103,256 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (71,241) | | | | | | — | | | | | | (71,241) | | |
Other comprehensive income (loss)
|
| | | | — | | | | | | — | | | | | | — | | | | | | 66 | | | | | | 66 | | |
Total comprehensive income (loss)
|
| | | | — | | | | | | — | | | | | | (71,241) | | | | | | 66 | | | | | | (71,175) | | |
Expenses from share-based payment plan
|
| | | | — | | | | | | 2 | | | | | | — | | | | | | — | | | | | | 2 | | |
Balance as of December 31, 2018
|
| | | | 727 | | | | | | 447,440 | | | | | | (416,074) | | | | | | (10) | | | | | | 32,083 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (99,873) | | | | | | — | | | | | | (99,873) | | |
Other comprehensive income (loss)
|
| | | | — | | | | | | — | | | | | | — | | | | | | 32 | | | | | | 32 | | |
Total comprehensive income (loss)
|
| | | | — | | | | | | — | | | | | | (99,873) | | | | | | 32 | | | | | | (99,841) | | |
Equity component of convertible loans
|
| | | | — | | | | | | 7,604 | | | | | | — | | | | | | — | | | | | | 7,604 | | |
Deferred taxes on convertible loans
|
| | | | — | | | | | | (2,212) | | | | | | — | | | | | | — | | | | | | (2,212) | | |
Expenses from share-based payment plan
|
| | | | — | | | | | | 19,564 | | | | | | — | | | | | | — | | | | | | 19,564 | | |
Balance as of December 31, 2019
|
| | | | 727 | | | | | | 472,396 | | | | | | (515,947) | | | | | | 22 | | | | | | (42,802) | | |
| | |
Years ended December 31,
|
| |||||||||
(in thousands of EUR)
|
| |
2018
|
| |
2019
|
| ||||||
Operating activities | | | | | | | | | | | | | |
Loss before income tax
|
| | | | (71,131) | | | | | | (100,125) | | |
Adjustments to reconcile loss before tax to net cash flows | | | | | | | | | | | | | |
Finance income
|
| | | | (1,968) | | | | | | (833) | | |
Finance expense
|
| | | | 275 | | | | | | 1,460 | | |
Depreciation and amortization
|
| | | | 3,781 | | | | | | 7,164 | | |
Loss on disposal of fixed assets
|
| | | | 52 | | | | | | 241 | | |
Share-based payment expense
|
| | | | (4,248) | | | | | | 19,564 | | |
Working capital changes | | | | | | | | | | | | | |
Decrease / (increase) in trade receivables and contract assets
|
| | | | (5,595) | | | | | | (10,117) | | |
Decrease / (increase) in inventory
|
| | | | 878 | | | | | | (3,246) | | |
Decrease / (increase) in other assets
|
| | | | (6,106) | | | | | | 630 | | |
Receipts from grants from government agencies and similar bodies
|
| | | | 214 | | | | | | 9,304 | | |
(Decrease) / increase in trade and other payables and contract liabilities
|
| | | | 9,402 | | | | | | (9,584) | | |
(Decrease) / Increase in other current financial and other liabilities
|
| | | | 336 | | | | | | (334) | | |
Income taxes paid
|
| | | | (26) | | | | | | (345) | | |
Interest received
|
| | | | 15 | | | | | | 81 | | |
Interest paid
|
| | | | 11 | | | | | | (824) | | |
Net cash flow (used in) operating activities
|
| | | | (74,110) | | | | | | (86,963) | | |
Investing activities | | | | | | | | | | | | | |
Purchase of property, plant and equipment
|
| | | | (9,406) | | | | | | (11,172) | | |
Purchase of intangible assets
|
| | | | (5,317) | | | | | | (1,052) | | |
Proceeds from asset-related grants
|
| | | | — | | | | | | 2,325 | | |
Proceeds from other financial assets
|
| | | | 10,459 | | | | | | 38,080 | | |
Net cash flow from (used in) investing activities
|
| | | | (4,264) | | | | | | 28,181 | | |
Financing activities | | | | | | | | | | | | | |
Payments on lease obligation
|
| | | | (112) | | | | | | (1,910) | | |
Proceeds from the convertible loans
|
| | | | — | | | | | | 69,889 | | |
Net cash flow from (used in) financing activities
|
| | | | (112) | | | | | | 67,979 | | |
Net increase (decrease) in cash and cash equivalents
|
| | | | (78,486) | | | | | | 9,197 | | |
Effect of currency translation gains on cash and cash equivalents
|
| | | | 213 | | | | | | 107 | | |
Cash and cash equivalents, beginning of period
|
| | | | 99,653 | | | | | | 21,380 | | |
Cash and cash equivalents, end of period
|
| | | | 21,380 | | | | | | 30,684 | | |
|
Software and Licenses
|
| |
3 to 8 years
|
|
|
Buildings:
|
| |
1 to 10 years
|
|
|
Technical equipment and machines:
|
| |
3 to 14 years
|
|
|
Other equipment, furniture and fixtures:
|
| |
3 to 14 years
|
|
| | |
EUR k
|
| |||
Existing commitments as at December 31, 2018 | | | | | | | |
Operating lease commitments
|
| | | | 48,008 | | |
Minimum lease payments (notional amount) on finance lease liabilities
|
| | | | 78 | | |
Relief option for short-term leases
|
| | | | (110) | | |
Leases with commencement date after January 1, 2019 in the amounts included above as existing commitments as at December 31, 2018
|
| | | | (28,557) | | |
Other
|
| | | | 123 | | |
Gross lease liabilities as at January 1, 2019
|
| | | | 19,542 | | |
Effect of discounting
|
| | | | (3,655) | | |
Lease liabilities as at January 1, 2019
|
| | | | 15,887 | | |
Present value of finance lease liabilities as at December 31, 2018
|
| | | | (77) | | |
Lease liabilities upon initial application of IFRS 16 as at January 1, 2019
|
| | | | 15,810 | | |
Weighted average incremental borrowing rate as at January 1, 2019
|
| | | | 5.64% | | |
|
Land and Buildings:
|
| |
1 to 15 years
|
|
|
Vehicles:
|
| |
3 to 4 years
|
|
|
Other equipment:
|
| |
2 to 5 years
|
|
| | |
Right-of-use assets
|
| |||||||||||||||||||||
| | |
Land and
Buildings |
| |
Vehicles
|
| |
Other
equipment |
| |
Total
|
| ||||||||||||
| | |
EURk
|
| |
EURk
|
| |
EURk
|
| |
EURk
|
| ||||||||||||
As at January 1, 2019
|
| | | | 15,536 | | | | | | 132 | | | | | | 239 | | | | | | 15,907 | | |
Additions
|
| | | | 82 | | | | | | 59 | | | | | | 13 | | | | | | 154 | | |
Depreciation expense
|
| | | | (2,322) | | | | | | (65) | | | | | | (142) | | | | | | (2,529) | | |
Foreign currency translation
|
| | | | 79 | | | | | | — | | | | | | — | | | | | | 79 | | |
As at December 31, 2019
|
| | | | 13,375 | | | | | | 126 | | | | | | 110 | | | | | | 13,611 | | |
| | |
EUR k
|
| |||
As at January 1, 2019
|
| | |
|
15,887
|
| |
Additions
|
| | | | 153 | | |
Accretion of interest
|
| | | | 824 | | |
Payments
|
| | | | (2,812) | | |
Foreign currency translation
|
| | | | 78 | | |
As at December 31, 2019
|
| | | | 14,130 | | |
Current
|
| | | | 2,004 | | |
Non-current
|
| | | | 12,126 | | |
| | |
EUR k
|
| |||
Depreciation expense of right-of-use assets
|
| | | | (2,529) | | |
Interest expense on lease liabilities
|
| | | | (824) | | |
Expense relating to short-term leases (included in cost of sales)
|
| | | | (167) | | |
Expense relating to leases of low-value assets (included in administrative expenses)
|
| | | | (94) | | |
Total amount recognized in profit or loss
|
| | | | (3,614) | | |
| | |
December 31,
2018 |
| |
December 31,
2019 |
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
United States | | | | | | | | | | | | | |
Eli Lilly and Company
|
| | | | 8,927 | | | | | | 14,319 | | |
Germany | | | | | | | | | | | | | |
Boehringer Ingelheim
|
| | | | 3,337 | | | | | | 2,474 | | |
Others
|
| | | | 5 | | | | | | 104 | | |
Switzerland | | | | | | | | | | | | | |
CRISPR
|
| | | | 602 | | | | | | 519 | | |
Total
|
| | | | 12,871 | | | | | | 17,416 | | |
Customer
|
| |
Upfront payments
received or receivable at December 31, 2019 (in thousands) |
| |
Upfront payments
included in contract liabilities at December 31, 2019 (in EUR k) |
| |
Revenue recognized
from upfront payments (in EUR k) |
| ||||||||||||
|
2018
|
| |
2019
|
| |||||||||||||||||
Eli Lilly and Company
|
| |
USD 50,000 (EUR 42,200)
|
| | | | 34,854 | | | | | | 3,516 | | | | | | 3,516 | | |
CRISPR
|
| | USD 3,000 (EUR 2,524) | | | | | 1,859 | | | | | | 310 | | | | | | 310 | | |
Boehringer Ingelheim
|
| | EUR 30,000 | | | | | 15,870 | | | | | | 2,035 | | | | | | 1,951 | | |
Genmab
|
| | USD 10,000 (EUR 8,937) | | | | | 8,937 | | | | | | — | | | | | | — | | |
Total | | | | | 61,520 | | | | | | 5,861 | | | | | | 5,777 | | |
| | |
January 1,
2018 |
| |
December 31,
2018 |
| |
December 31,
2019 |
| |||||||||
| | |
EUR k
|
| |
EUR k
|
| |
EUR k
|
| |||||||||
Trade receivables
|
| | | | 463 | | | | | | 5,476 | | | | | | 15,690 | | |
Contract assets
|
| | | | — | | | | | | 1,382 | | | | | | 1,463 | | |
Contract liabilities
|
| | | | 69,220 | | | | | | 70,360 | | | | | | 73,521 | | |
| | |
Year ended
|
| |||||||||
| | |
2018
EUR k |
| |
2019
EUR k |
| ||||||
Within one year
|
| | | | 5,777 | | | | | | 7,481 | | |
More than one year
|
| | | | 64,583 | | | | | | 66,040 | | |
Total | | | | | 70,360 | | | | | | 73,521 | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Personnel
|
| | | | (7,703) | | | | | | (9,855) | | |
Materials
|
| | | | (4,941) | | | | | | (7,542) | | |
Third-party services
|
| | | | (2,340) | | | | | | (7,268) | | |
Maintenance and lease
|
| | | | (1,758) | | | | | | (1,060) | | |
Amortization and depreciation
|
| | | | (893) | | | | | | (2,038) | | |
Other
|
| | | | (109) | | | | | | (220) | | |
Total
|
| | | | (17,744) | | | | | | (27,983) | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Personnel
|
| | | | (581) | | | | | | (1,263) | | |
Maintenance and lease costs
|
| | | | (300) | | | | | | (167) | | |
Amortization and depreciation
|
| | | | (95) | | | | | | (81) | | |
Other
|
| | | | (109) | | | | | | (243) | | |
Total | | | | | (1,085) | | | | | | (1,755) | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Materials
|
| | | | (5,867) | | | | | | (4,015) | | |
Personnel
|
| | | | (7,565) | | | | | | (14,385) | | |
Amortization and depreciation
|
| | | | (1,143) | | | | | | (474) | | |
Patents and fees to register a legal right
|
| | | | (4,847) | | | | | | (4,551) | | |
Third-party services
|
| | | | (19,921) | | | | | | (18,626) | | |
Maintenance and lease
|
| | | | (1,156) | | | | | | (670) | | |
Other
|
| | | | (1,223) | | | | | | (521) | | |
Total | | | | | (41,722) | | | | | | (43,242) | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Personnel
|
| | | | (10,084) | | | | | | (31,645) | | |
Maintenance and lease costs
|
| | | | (3,239) | | | | | | (4,604) | | |
Third-party services
|
| | | | (4,006) | | | | | | (5,970) | | |
Legal and other professional services
|
| | | | (4,078) | | | | | | (2,110) | | |
Amortization and depreciation
|
| | | | (1,635) | | | | | | (2,182) | | |
Other
|
| | | | (2,247) | | | | | | (2,458) | | |
Total | | | | | (25,289) | | | | | | (48,969) | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Grants and other cost reimbursements from government agencies and similar bodies
|
| | | | 808 | | | | | | 5,385 | | |
Other
|
| | | | — | | | | | | 202 | | |
Total
|
| | | | 808 | | | | | | 5,587 | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Renumeration of supervisory board
|
| | | | (343) | | | | | | (521) | | |
Other
|
| | | | (320) | | | | | | (30) | | |
Total
|
| | | | (663) | | | | | | (552) | | |
(in thousands of EUR)
|
| |
Software and
licenses |
| |
Advance
payments |
| |
Total
|
| |||||||||
Acquisition costs | | | | | | | | | | | | | | | | | | | |
As of January 1, 2018
|
| | | | 3,402 | | | | | | 235 | | | | | | 3,638 | | |
Additions
|
| | | | 5,314 | | | | | | 2 | | | | | | 5,317 | | |
As of December 31, 2018
|
| | | | 8,717 | | | | | | 238 | | | | | | 8,954 | | |
Cumulative amortization and impairment charges | | | | | | | | | | | | | | | | | | | |
As of January 1, 2018
|
| | | | 1,545 | | | | | | — | | | | | | 1,545 | | |
Amortization
|
| | | | 1,197 | | | | | | — | | | | | | 1,197 | | |
As of December 31, 2018
|
| | | | 2,742 | | | | | | — | | | | | | 2,742 | | |
|
(in thousands of EUR)
|
| |
Software and
licenses |
| |
Advance
payments |
| |
Total
|
| |||||||||
Acquisition costs | | | | | | | | | | | | | | | | | | | |
As of January 1, 2019
|
| | | | 8,717 | | | | | | 238 | | | | | | 8,954 | | |
Additions
|
| | | | 738 | | | | | | 44 | | | | | | 782 | | |
Disposals
|
| | | | (6) | | | | | | — | | | | | | (6) | | |
As of December 31, 2019
|
| | | | 9,449 | | | | | | 282 | | | | | | 9,731 | | |
Cumulative amortization and impairment charges | | | | | | | | | | | | | | | | | | | |
As of January 1, 2019
|
| | | | 2,742 | | | | | | — | | | | | | 2,742 | | |
Amortization
|
| | | | 1,295 | | | | | | — | | | | | | 1,295 | | |
Disposals
|
| | | | (4) | | | | | | — | | | | | | (4) | | |
As of December 31, 2019
|
| | | | 4,033 | | | | | | — | | | | | | 4,033 | | |
Carrying amount | | | | | | | | | | | | | | | | | | | |
As of January 1, 2018
|
| | | | 1,858 | | | | | | 235 | | | | | | 2,093 | | |
As of December 31, 2018
|
| | | | 5,975 | | | | | | 238 | | | | | | 6,213 | | |
As of December 31, 2019
|
| | | | 5,416 | | | | | | 282 | | | | | | 5,698 | | |
(in thousands of EUR)
|
| |
Buildings
|
| |
Technical
equipment and machines |
| |
Other
equipment, furniture and fixtures |
| |
Assets
under construction |
| |
Total
|
| |||||||||||||||
Acquisition costs | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
As of January 1, 2018
|
| | | | 5,398 | | | | | | 12,230 | | | | | | 4,665 | | | | | | 27,103 | | | | | | 49,397 | | |
Additions
|
| | | | 490 | | | | | | 953 | | | | | | 719 | | | | | | 7,244 | | | | | | 9,406 | | |
Disposals
|
| | | | — | | | | | | (150) | | | | | | (157) | | | | | | — | | | | | | (307) | | |
Reclassifications
|
| | | | — | | | | | | 1,303 | | | | | | 19 | | | | | | (1,323) | | | | | | — | | |
Currency translation
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1 | | | | | | 1 | | |
As of December 31, 2018
|
| | | | 5,888 | | | | | | 14,336 | | | | | | 5,247 | | | | | | 33,025 | | | | | | 58,497 | | |
Cumulative depreciation and impairment charges | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
As of January 1, 2018
|
| | | | 1,337 | | | | | | 4,610 | | | | | | 2,654 | | | | | | 7,120 | | | | | | 15,721 | | |
Depreciation
|
| | | | 371 | | | | | | 1,299 | | | | | | 890 | | | | | | — | | | | | | 2,559 | | |
Disposals
|
| | | | — | | | | | | (99) | | | | | | (157) | | | | | | — | | | | | | (255) | | |
As of December 31, 2018
|
| | | | 1,708 | | | | | | 5,810 | | | | | | 3,387 | | | | | | 7,120 | | | | | | 18,025 | | |
|
(in thousands of EUR)
|
| |
Buildings
|
| |
Technical
equipment and machines |
| |
Other
equipment, furniture and fixtures |
| |
Assets
under construction |
| |
Total
|
| |||||||||||||||
Acquisition costs | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
As of January 1, 2019
|
| | | | 5,888 | | | | | | 14,336 | | | | | | 5,247 | | | | | | 33,025 | | | | | | 58,497 | | |
Additions
|
| | | | 854 | | | | | | 2,152 | | | | | | 712 | | | | | | 7,435 | | | | | | 11,152 | | |
Disposals
|
| | | | (65) | | | | | | (319) | | | | | | (248) | | | | | | — | | | | | | (632) | | |
Reclassifications
|
| | | | 167 | | | | | | 883 | | | | | | 187 | | | | | | (1,237) | | | | | | — | | |
Currency translation
|
| | | | — | | | | | | — | | | | | | 3 | | | | | | 4 | | | | | | 6 | | |
As of December 31, 2019
|
| | | | 6,844 | | | | | | 17,051 | | | | | | 5,902 | | | | | | 39,226 | | | | | | 69,023 | | |
Cumulative depreciation and impairment charges | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
As of January 1, 2019
|
| | | | 1,708 | | | | | | 5,810 | | | | | | 3,388 | | | | | | 7,120 | | | | | | 18,026 | | |
Depreciation
|
| | | | 779 | | | | | | 1,637 | | | | | | 899 | | | | | | — | | | | | | 3,315 | | |
Disposals
|
| | | | (37) | | | | | | (190) | | | | | | (164) | | | | | | — | | | | | | (392) | | |
Currency translation
|
| | | | — | | | | | | — | | | | | | 1 | | | | | | — | | | | | | 1 | | |
As of December 31, 2019
|
| | | | 2,449 | | | | | | 7,257 | | | | | | 4,123 | | | | | | 7,120 | | | | | | 20,949 | | |
Carrying amount | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
As of January 1, 2018
|
| | | | 4,061 | | | | | | 7,621 | | | | | | 2,011 | | | | | | 19,982 | | | | | | 33,675 | | |
As of December 31, 2018
|
| | | | 4,181 | | | | | | 8,526 | | | | | | 1,860 | | | | | | 25,904 | | | | | | 40,472 | | |
As of December 31, 2019
|
| | | | 4,395 | | | | | | 9,795 | | | | | | 1,779 | | | | | | 32,105 | | | | | | 48,075 | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Raw materials
|
| | | | 2,742 | | | | | | 6,177 | | |
Finished goods
|
| | | | — | | | | | | 14 | | |
Other
|
| | | | 209 | | | | | | 6 | | |
Total
|
| | | | 2,951 | | | | | | 6,197 | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Short-term investments
|
| | | | 39,024 | | | | | | 430 | | |
Other
|
| | | | 229 | | | | | | 1,028 | | |
Total | | | | | 39,253 | | | | | | 1,458 | | |
|
Series
|
| |
Shares
|
| |||
A
|
| | | | 23,400 | | |
B
|
| | | | 688,692 | | |
C
|
| | | | 14,500 | | |
Total
|
| | | | 726,592 | | |
| | |
2018
|
| |
2019
|
| ||||||
Outstanding at the beginning of the period
|
| | | | 59,908 | | | | | | 49,899 | | |
Granted during the period
|
| | | | — | | | | | | 5,000 | | |
Expired during the period
|
| | | | (10,009) | | | | | | — | | |
Outstanding at the end of the period
|
| | | | 49,899 | | | | | | 54,899 | | |
Thereof vested (and expensed)
|
| | | | 49,899 | | | | | | 54,899 | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Research and development expenses
|
| | | | 4,229 | | | | | | — | | |
General and administrative expenses
|
| | | | 21 | | | | | | (6,074) | | |
Total | | | | | 4,250 | | | | | | (6,074) | | |
|
Weighted average fair value
|
| | | | EUR 505.48 | | |
|
Weighted average share price
|
| | | | EUR1,223.16 | | |
|
Exercise price (USD 825.77)
|
| | | | EUR 750.99 | | |
|
Expected volatility (%)
|
| | | | 50.0% | | |
|
Expected life (years)
|
| | | | 1.16 | | |
|
Risk-free interest rate (%)
|
| | | | 1.77% | | |
|
Outstanding at the beginning of the period
|
| | | | — | | |
|
Granted during the period
|
| | | | 5,600 | | |
|
Outstanding at the end of the period
|
| | | | 5,600 | | |
|
Thereof vested
|
| | | | 1,318 | | |
|
Thereof expensed
|
| | | | 2,137 | | |
| | |
2019
|
| |||
| | |
EUR k
|
| |||
Research and development expenses
|
| | | | (258) | | |
Selling and distribution expenses
|
| | | | (743) | | |
General and administrative expenses
|
| | | | (79) | | |
Total | | | | | (1,080) | | |
|
Weighted average fair value
|
| | EUR 514.93 | |
|
Weighted average share price
|
| | EUR 1,223.16 | |
|
Exercise price (USD 1,101.03)
|
| | EUR 998.38 | |
|
Expected volatility (%)
|
| | 50.0% | |
|
Expected life (years)
|
| | 4.77 | |
|
Risk-free interest rate(%)
|
| | 1.71% | |
|
Outstanding at the beginning of the period
|
| | | | — | | |
|
Granted during the period
|
| | | | 29,053 | | |
|
Outstanding at the end of the period
|
| | | | 29,053 | | |
|
Thereof vested
|
| | | | 21,184 | | |
|
Thereof expensed
|
| | | | 24,099 | | |
| | |
2019
|
| |||
| | |
EUR k
|
| |||
General and administrative expenses
|
| | | | (12,409) | | |
Total | | | | | (12,409) | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Trade payables
|
| | | | (9,029) | | | | | | (5,331) | | |
License fees payable
|
| | | | (501) | | | | | | (537) | | |
Miscellaneous liabilities
|
| | | | (1,383) | | | | | | (607) | | |
Total | | | | | (10,913) | | | | | | (6,475) | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Accrued bonuses
|
| | | | 1,903 | | | | | | 2,477 | | |
Accrued vacation
|
| | | | 682 | | | | | | 780 | | |
Outstanding invoices
|
| | | | 6,812 | | | | | | 3,478 | | |
Professional fees
|
| | | | 292 | | | | | | 578 | | |
Grants from government agencies and similar bodies
|
| | | | 1,186 | | | | | | 4,148 | | |
Other
|
| | | | 271 | | | | | | 554 | | |
Total | | | | | 11,146 | | | | | | 12,015 | | |
| | |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Loss before tax
|
| | | | (71,131) | | | | | | (100,125) | | |
Expected tax benefit (based on statutory tax rate of 29.13% in 2019 and 2018)
|
| | | | 20,744 | | | | | | 29,162 | | |
Adjustments in respect of current income tax of previous years
|
| | | | 42 | | | | | | — | | |
Effects from differences between Group and local tax rates
|
| | | | 10 | | | | | | 8 | | |
Effects resulting from non-recognition of tax loss carryforwards
|
| | | | (22,428) | | | | | | (22,836) | | |
Effects resulting from non-recognition of DTA/DTL
|
| | | | — | | | | | | — | | |
First-time-recognition of tax loss carryforwards
|
| | | | 430 | | | | | | — | | |
Non-deductible expenses for tax purposes
|
| | | | | | | | | | | | |
− Effects from non-deductible share-based-payments
|
| | | | 1,209 | | | | | | (5,698) | | |
− Effects from (additions/ deductions) for local trade taxes
|
| | | | (65) | | | | | | (191) | | |
− Other non-deductible expenses
|
| | | | (53) | | | | | | (78) | | |
Other effects
|
| | | | — | | | | | | (114) | | |
Effective tax benefit/ (expense)
|
| | | | (110) | | | | | | 252 | | |
Tax loss carryforwards
|
| |
2018
|
| |
2019
|
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Unused tax losses for corporate income tax
|
| | | | 330,753 | | | | | | 407,434 | | |
Unused tax losses for trade tax
|
| | | | 329,210 | | | | | | 405,123 | | |
2019
|
| |
less than
3 months EURk |
| |
3 to 12 months
EURk |
| |
1 to 5 years
EURk |
| |
> 5 years
EURk |
| |
Total
EURk |
| |||||||||||||||
Convertible loans
|
| | | | — | | | | | | — | | | | | | (83,940) | | | | | | — | | | | | | (83,940) | | |
Lease liabilities (Note 2)
|
| | | | (732) | | | | | | (1,985) | | | | | | (9,192) | | | | | | (5,086) | | | | | | (16,995) | | |
Other liabilities
|
| | | | — | | | | | | (12,015) | | | | | | (362) | | | | | | (167) | | | | | | (12,544) | | |
Trade and other payables
|
| | | | (5,938) | | | | | | (537) | | | | | | — | | | | | | — | | | | | | (6,475) | | |
Total | | | | | (6,670) | | | | | | (14,537) | | | | | | (93,494) | | | | | | (5,253) | | | | | | (119,954) | | |
|
2018
|
| |
less than
3 months EURk |
| |
3 to 12 months
EURk |
| |
1 to 5 years
EURk |
| |
> 5 years
EURk |
| |
Total EURk
|
| |||||||||||||||
Finance lease liabilities
|
| | | | (29) | | | | | | (48) | | | | | | — | | | | | | — | | | | | | (77) | | |
Other liabilities
|
| | | | — | | | | | | (11,146) | | | | | | (688) | | | | | | (175) | | | | | | (12,009) | | |
Trade and other payables
|
| | | | (10,378) | | | | | | (535) | | | | | | — | | | | | | — | | | | | | (10,913) | | |
Total | | | | | (10,407) | | | | | | (11,729) | | | | | | (688) | | | | | | (175) | | | | | | (22,999) | | |
2018
|
| |
less than
3 months EURk |
| |
3 to 12 months
EURk |
| |
1 to 5 years
EURk |
| |
> 5 years
EURk |
| |
Total EURk
|
| |||||||||||||||
Operating lease commitments
|
| | | | — | | | | | | (84) | | | | | | (91) | | | | | | — | | | | | | (175) | | |
Rental agreements
|
| | | | (683) | | | | | | (2,576) | | | | | | (21,160) | | | | | | (23,589) | | | | | | (48,008) | | |
Total | | | | | (683) | | | | | | (2,660) | | | | | | (21,251) | | | | | | (23,589) | | | | | | (48,183) | | |
| | |
2019
(in thousands) |
| |||
Cash and cash equivalents
|
| |
22,608 EUR
|
| |
25,398 USD
|
|
Trade and other receivables
|
| |
9,458 EUR
|
| |
10,585 USD
|
|
Other receivables
|
| |
105 EUR
|
| |
93 GBP
|
|
| | |
84 EUR
|
| |
92 CHF
|
|
| | |
81 EUR
|
| |
91 USD
|
|
Monetary assets in foreign currency
|
| |
32,336 EUR
|
| | | |
Trade and other payables
|
| |
505 EUR
|
| |
567 USD
|
|
| | |
219 EUR
|
| |
186 GBP
|
|
| | |
10 EUR
|
| |
11 CHF
|
|
Monetary liabilities in foreign currency
|
| |
734 EUR
|
| | | |
| | |
2018
(in thousands) |
| |||
Cash and cash equivalents
|
| |
16,941 EUR
|
| |
19,398 USD
|
|
Trade and other receivables
|
| |
2,059 EUR
|
| |
3,374 USD
|
|
Monetary assets in foreign currency
|
| |
19,000 EUR
|
| |
22,772 USD
|
|
Trade and other payables
|
| |
8,002 EUR
|
| |
9,162 USD
|
|
| | |
132 EUR
|
| |
118 GBP
|
|
| | |
46 EUR
|
| |
51 CHF
|
|
Monetary liabilities in Foreign Currency
|
| |
8,180 EUR
|
| | | |
| 2018 (1 EUR= 1.1450 USD) | | | 2019 (1 EUR = 1.1234 USD) | |
| EUR 10,544k from USD 13,090k | | | EUR 30,656k from USD 34,400k | |
in thousands of EUR
|
| |
January 1,
2019 |
| |
Cash
flows |
| |
Reclassification
|
| |
New
leases |
| |
Accrued
interest |
| |
Foreign
Exchange Movements |
| |
December 31,
2019 |
| |||||||||||||||||||||
Convertible loans
|
| | | | — | | | | | | 69,889 | | | | | | (7,604) | | | | | | — | | | | | | 2,733 | | | | | | — | | | | | | 65,018 | | |
Lease liabilities
|
| | | | 15,810 | | | | | | (1,910) | | | | | | — | | | | | | 153 | | | | | | — | | | | | | 77 | | | | | | 14,130 | | |
Total liabilities from financing
activities |
| | | | 15,810 | | | | | | 67,979 | | | | | | (7,604) | | | | | | 153 | | | | | | 2,733 | | | | | | 77 | | | | | | 79,148 | | |
|
in thousands of EUR
|
| |
January 1,
2018 |
| |
Changes from
financing cash flows |
| |
December 31,
2018 |
| |||||||||
Lease liabilities
|
| | | | 188 | | | | | | (112) | | | | | | 77 | | |
Total liabilities from financing activities
|
| | | | 188 | | | | | | (112) | | | | | | 77 | | |
Remuneration of key management in 2019
|
| |
Management
Board |
| |
Supervisory
Board |
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Short-term benefits
|
| | | | 3,166 | | | | | | 521 | | |
Share-based payments
|
| | | | 18,483 | | | | | | — | | |
Total | | | | | 21,649 | | | | | | 521 | | |
Remuneration of key management in 2018
|
| |
Management
Board |
| |
Supervisory
Board |
| ||||||
| | |
EUR k
|
| |
EUR k
|
| ||||||
Short-term benefits
|
| | | | 2,195 | | | | | | 343 | | |
Total | | | | | 2,195 | | | | | | 343 | | |
| CureVac B.V. | | |||
| By: | | | /s/ Franz-Werner Haas, LLD, LLM | |
| Name: | | | Franz-Werner Haas, LLD, LLM | |
| Title: | | | Chief Executive Officer | |
| By: | | | /s/ Pierre Kemula, B.Sc. | |
| Name: | | | Pierre Kemula, B.Sc. | |
| Title: | | | Chief Financial Officer | |
| | | | CureVac Inc. | |
| | | |
/s/ Franz-Werner Haas
Name: Franz-Werner Haas
Title: Member of Board of Directors |
|
Exhibit 1.1
CureVac B.V.
(a Dutch company)
[ ● ] Common Shares
UNDERWRITING AGREEMENT
Dated: [ ● ], 2020
CureVac B.V.
(a Dutch company)
[ ● ] Common Shares
UNDERWRITING AGREEMENT
[ ● ], 2020
BofA Securities, Inc. |
Jefferies LLC |
Credit Suisse Securities (USA) LLC |
as Representatives of the several Underwriters |
c/o BofA Securities, Inc. |
One Bryant Park |
New York, New York 10036 |
c/o Jefferies LLC |
520 Madison Avenue |
New York, New York 10022 |
c/o Credit Suisse Securities (USA) LLC |
Eleven Madison Avenue |
New York, New York 10010 |
Ladies and Gentlemen:
CureVac B.V., a Dutch private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) (to change its legal form into a Dutch public company with limited liability (naamloze vennootschap) and its corporate name to CureVac N.V. prior to the completion of the public offering described below (the “Company”)) confirms its agreement with BofA Securities, Inc. (“BofAS”), Jefferies LLC (“Jefferies”), Credit Suisse Securities (USA) LLC (“Credit Suisse”) and each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom BofAS, Jefferies and Credit Suisse are acting as representatives (in such capacity, the “Representatives”), with respect to (i) the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of Common Shares, par value €0.12 per share, of the Company (“Common Shares”) set forth in Schedules A and B hereto and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of [ ● ] additional Common Shares. The aforesaid [ ● ] Common Shares (the “Initial Securities”) to be purchased by the Underwriters and all or any part of the [ ● ] Common Shares subject to the option described in Section 2(b) hereof (the “Option Securities”) are herein called, collectively, the “Securities.”
The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form F-1 (No. 333-[ ● ]), including the related preliminary prospectus or prospectuses, covering the registration of the sale of the Securities under the Securities Act of 1933, as amended (the “1933 Act”). Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and Rule 424(b) (“Rule 424(b)”) of the 1933 Act Regulations. The information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to Rule 430A(b) is herein called the “Rule 430A Information.” Such registration statement, including the amendments thereto, the exhibits thereto and any schedules thereto, at the time it became effective, and including the Rule 430A Information, is herein called the “Registration Statement.” Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein called the “Rule 462(b) Registration Statement” and, after such filing, the term “Registration Statement” shall include the Rule 462(b) Registration Statement. Each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “preliminary prospectus.” The final prospectus, in the form first furnished to the Underwriters for use in connection with the offering of the Securities, is herein called the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system or any successor system (“EDGAR”).
On the date hereof, the business of the Company is conducted through CureVac AG, a company incorporated under the laws of Germany (“CureVac”). Prior to the Closing Time (as hereinafter defined), the Company plans to consummate a corporate reorganization consisting of the transactions described under the caption “Corporate Reorganization” in the Registration Statement, the General Disclosure Package and the Prospectus (the “Corporate Reorganization”).
As used in this Agreement:
“Applicable Time” means [____ P/A.M.], New York City time, on [ ● ], 2020 or such other time as agreed by the Company and the Representatives.
“General Disclosure Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most recent preliminary prospectus that is distributed to investors prior to the Applicable Time and the information included on Schedule B-1 hereto, all considered together.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”)) relating to the Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic Road Show”)), as evidenced by its being specified in Schedule B-2 hereto.
2
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the 1933 Act.
“Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the 1933 Act.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. For purposes of this Section 1(a), CureVac and its subsidiaries shall be deemed to be subsidiaries of the Company as of the date of this Agreement and at all times prior to the date of this Agreement. In this Section 1(a), references to the Company’s knowledge, belief or awareness shall mean the knowledge, belief or awareness of each of the Company and CureVac. Each of the Company and CureVac represent and warrant, jointly and severally, to each Underwriter as of the date hereof, the Applicable Time, the Closing Time (as defined below) and any Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
(i) Registration Statement and Prospectuses. Each of the Registration Statement and any amendment thereto has become effective under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated. The Company has complied with each request (if any) from the Commission for additional information.
Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus delivered to the Underwriters for use in connection with this offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(ii) Accurate Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, at the Closing Time or at any Date of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the Applicable Time, none of (A) the General Disclosure Package, (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package and (C) any individual Written Testing-the-Waters Communication, when considered together with the General Disclosure Package, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), at the Closing Time or at any Date of Delivery, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
3
The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein. For purposes of this Agreement, the only information so furnished shall be [the information in the first paragraph under the heading “Underwriting—Commissions and Discounts,” the information in the fourth paragraph under the heading “Underwriting—Nasdaq Global Market Listing,” the information in the second, third and fourth paragraphs under the heading “Underwriting—Price Stabilization, Short Positions and Penalty Bids” and the information under the heading “Underwriting—Electronic Offer, Sale and Distribution of Shares”] in each case contained in the Prospectus (collectively, the “Underwriter Information”).
(iii) Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified. The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) such that no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the offering of the Securities.
(iv) Testing-the-Waters Materials. The Company (A) has not engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Representatives with entities that are qualified institutional buyers within the meaning of Rule 144A under the 1933 Act or institutions that are accredited investors within the meaning of Rule 501 under the 1933 Act and (B) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule [●] hereto.
(v) Company Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
(vi) Emerging Growth Company Status. From the time of the initial confidential submission of the Registration Statement to the Commission (or, if earlier, the first date on which the Company engaged directly or through any Person authorized to act on its behalf in any Testing-the-Waters Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the 1933 Act (an “Emerging Growth Company”).
(vii) Independent Accountants. The accountants who certified the financial statements and supporting schedules included in the Registration Statement, the General Disclosure Package and the Prospectus are independent public accountants as required by the 1933 Act, the 1933 Act Regulations and the Public Company Accounting Oversight Board.
4
(viii) Financial Statements. The financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly, in all material respects, the financial position of each of the Company and CureVac and their consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board applied on a consistent basis throughout the periods involved. The supporting schedules, if any, present fairly in accordance with IFRS the information required to be stated therein in all material respects. The selected financial data and the summary financial information included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included therein. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the General Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations.
(ix) No Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise, and (C) except for regular dividends on the Common Shares in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock.
(x) Good Standing of the Company and CureVac. Each of the Company and CureVac has been duly incorporated or otherwise organized and is validly existing as a corporation in good standing (where such concept exists) under the laws of the jurisdiction of its organization and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement; and each of the Company and CureVac is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect.
(xi) Good Standing of Subsidiaries. Each of the Company’s subsidiaries except for CureVac (each, a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly incorporated or otherwise organized and is validly existing in good standing (where such concept exists) under the laws of the jurisdiction of its incorporation or organization, has corporate or similar power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify, to have such power or authority or to be in good standing would not result in a Material Adverse Effect. Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital stock of any Subsidiary were issued in violation of the preemptive or similar rights of any security holder of such Subsidiary. The only Subsidiaries of the Company are (A) the Subsidiaries listed on Exhibit 21.1 to the Registration Statement and (B) certain other Subsidiaries which, considered in the aggregate as a single Subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X.
5
(xii) Capitalization. The authorized, issued and outstanding shares of capital stock of each of the Company and CureVac are as set forth in the Registration Statement, the General Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration Statement, the General Disclosure Package and the Prospectus). There are no authorized or outstanding phantom equity, rights to receive shares, options, conversion rights, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for or that can be settled in, any share capital of the Company or any of its subsidiaries other than those described in the Registration Statement, the General Disclosure Package and the Prospectus. The issued shares of capital stock of each of the Company and CureVac have been duly authorized and validly issued and are fully paid and non-assessable. None of the issued shares of capital stock of the Company and CureVac were issued in violation of the preemptive or other similar rights of any security holder of the Company or CureVac.
(xiii) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by each of the Company and CureVac.
(xiv) Authorization and Description of Securities. The Securities to be purchased by the Underwriters from the Company have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued and fully paid and non-assessable; and the issuance of the Securities is not subject to the preemptive or other similar rights of any security holder of the Company, except as have been duly and validly waived. The Securities conform in all material respects to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same. No holder of Securities will be subject to personal liability by reason of being such a holder.
(xv) Registration Rights. There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this Agreement, other than those rights that have been disclosed in the Registration Statement, the General Disclosure Package and the Prospectus or that have been waived.
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(xvi) Absence of Violations, Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (A) in violation of its articles of association or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the properties or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described therein under the caption “Use of Proceeds”) and compliance by each of the Company and CureVac with their respective obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of (i) the provisions of the articles of association or similar organizational document of the Company or any of its subsidiaries or (ii) any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity, except in the case of clause (ii) for any violation that would not, singly or in the aggregate, result in a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(xvii) Absence of Labor Dispute. Other than that which would not result in a Material Adverse Effect, (i) no labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, and (ii) the Company is not aware of any existing or imminent labor dispute with the employees of any of its or any subsidiary’s principal suppliers, manufacturers, customers or contractors.
(xviii) Absence of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, to the knowledge of the Company, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or, to the knowledge of the Company, threatened, against the Company or any of its subsidiaries, which would reasonably be expected to result in a Material Adverse Effect, or which would reasonably be expected to materially and adversely affect their respective properties or assets or the consummation of the transactions contemplated in this Agreement or the performance by the Company or CureVac of their respective obligations hereunder; and the aggregate of all pending legal or governmental proceedings to which the Company or any such subsidiary is a party or of which any of their respective properties or assets is the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not reasonably be expected to result in a Material Adverse Effect.
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(xix) Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
(xx) Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of The Nasdaq Global Market, state securities laws or the rules of Financial Industry Regulatory Authority, Inc. (“FINRA”).
(xxi) Possession of Licenses and Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect. The Company and its subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(xxii) Title to Property. The Company and its subsidiaries have good and marketable title to all real property owned by them and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure Package and the Prospectus or (B) do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of its subsidiaries; and all of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described in the Registration Statement, the General Disclosure Package or the Prospectus, are in full force and effect, and neither the Company nor any such subsidiary has any notice of any material claim of any sort that has been asserted by anyone (A) adverse to the rights of the Company or any subsidiary under any of the leases or subleases mentioned above, or (B) affecting or questioning the rights of the Company or such subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease.
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(xxiii) Possession of Intellectual Property. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or where it would not, singly or in the aggregate, result in a Material Adverse Effect, (A) the Company and its subsidiaries own, possess or have the right to use, or can acquire the right to use on reasonable terms, all patents, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by them and as currently proposed to be conducted as described in the Registration Statement, the General Disclosure Package or the Prospectus, (B) to the knowledge of the Company, all Intellectual Property owned by or exclusively licensed to the Company or its subsidiaries (such Intellectual Property, the “Company Intellectual Property”) has been duly and properly filed and maintained, is free and clear of liens or security interests, and is in full force and effect, valid, subsisting and enforceable, (C) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by any third party challenging the validity, ownership, registrability, enforceability or scope of any Company Intellectual Property and the Company is unaware of any facts which would form a reasonable basis for any such claim, (D) no third party, to the knowledge of the Company, is infringing, misappropriating or otherwise violating any Company Intellectual Property and there is no pending or threatened action, suit, proceeding or claim by the Company or any of its subsidiaries against a third party regarding the foregoing, (E) (1)neither the Company nor any of its subsidiaries has received any written notice of nor, to the knowledge of the Company, has engaged in, any infringement, misappropriation or other violation of any Intellectual Property of any third party, (2) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim regarding the subject matter of the foregoing, and (3) the Company and its subsidiaries are unaware of any facts which would form a reasonable basis for any such claim, (F) to the knowledge of the Company, the parties prosecuting patent applications within the Company Intellectual Property have complied with their duty of candor and disclosure to the USPTO or foreign patent offices, as applicable, in connection with such applications and the Company is not aware of any facts required to be disclosed to the USPTO or foreign patent offices that were not disclosed and which would preclude the grant of a patent in connection with any such patent application or could form the basis of a finding of invalidity or unenforceability with respect to any patents that have issued with respect to such patent applications, (G) each person who is or was an employee or contractor of the Company or any of its subsidiaries and who is or was involved in the creation or development of any Company Intellectual Property for or on behalf of the Company has executed a valid agreement containing an assignment or exclusive license to the Company or any of its subsidiaries of such person’s rights in and to such Company Intellectual Property, (H) the Company has taken reasonable steps in accordance with standard industry practice to maintain and protect the confidentiality of the trade secrets and other confidential Intellectual Property used in connection with the business of the Company and its subsidiaries and, to the knowledge of the Company, such confidential Intellectual Property has not been compromised or disclosed to or accessed by any third party except pursuant to nondisclosure and confidentiality agreements.
(xxiv) Environmental Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or where it would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, legally binding policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of worker health and safety, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold, but excluding the Company’s or any of its subsidiaries’ products (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (D) to the Company’s knowledge, there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Entity, against the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
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(xxv) Accounting Controls. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, the Company, CureVac and each of their respective subsidiaries maintain a system of internal control over financial reporting (as defined under Rule 13-a15 and 15d-15 under the 1934 Act Regulations) and a system of internal accounting controls designed to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the Company’s or CureVac’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s or CureVac’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s or CureVac’s internal control over financial reporting that has materially and adversely affected, or is reasonably likely to materially and adversely affect, the Company’s or CureVac’s internal control over financial reporting.
(xxvi) Compliance with the Sarbanes-Oxley Act. The Company has taken all necessary actions to ensure that, upon the effectiveness of the Registration Statement, it will be in compliance with all provisions of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “Sarbanes-Oxley Act”) that are then in effect and with which the Company is required to comply as of the effectiveness of the Registration Statement, and is actively taking steps to ensure that it will be in compliance with other provisions of the Sarbanes-Oxley Act not currently in effect, upon the effectiveness of such provisions, or which will become applicable to the Company at all times after the effectiveness of the Registration Statement.
(xxvii) Payment of Taxes. All United States federal income tax returns of the Company and its subsidiaries required by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided in accordance with GAAP. The United States federal income tax returns of the Company through the fiscal year ended December 31, 2019 have been settled and no assessment in connection therewith has been made against the Company. The Company and its subsidiaries have filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other law except insofar as the failure to file such returns would not result in a Material Adverse Effect, and has paid all material taxes due pursuant to such returns or pursuant to any assessment received by the Company and its subsidiaries, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by the Company in accordance with IFRS. The charges, accruals and reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would not result in a Material Adverse Effect.
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(xxviii) Transfer Taxes. No stamp duty, stamp duty reserve, registration, issuance, transfer taxes or other similar documentary taxes, duties, fees or charges (“Transfer Taxes”) are payable or required to be paid by or on behalf of the Underwriters in the Netherlands or any political subdivision, authority or agency thereof or therein having power to tax in connection with (i) the execution, delivery and performance of this Agreement, (ii) the issuance and delivery of the Securities in the manner contemplated by this Agreement and the Prospectus, or (iii) the sale and delivery by the Underwriters of the Securities as contemplated herein and in the Prospectus.
(xxix) PFIC Status. Based on the current and anticipated value of its assets and the nature and composition of its income and assets, and subject to the qualifications set forth in the Registration Statement, the General Disclosure Package and the Prospectus, the Company does believe it was a “passive foreign investment company” within the meaning of Section 1297 of the Code for the taxable year ending December 31, 2019.
(xxx) Insurance. The Company and its subsidiaries carry or are entitled to the benefits of insurance, with reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute and of comparable size engaged in the same or similar business, and all such insurance considered to be material for operating the Company’s and its subsidiaries’ businesses is in full force and effect. The Company has no reason to believe that it or any of its subsidiaries will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that, in each case, would not reasonably be expected to result in a Material Adverse Effect. Neither of the Company nor any of its subsidiaries has been denied any material insurance coverage which it has sought or for which it has applied.
(xxxi) Investment Company Act. Each of the Company and CureVac is not required, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will not be required, to register as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xxxii) Absence of Manipulation. Neither the Company nor, to the Company’s knowledge, any affiliate of the Company has taken, nor will the Company or any affiliate controlled by the Company take, directly or indirectly, any action which is designed, or would reasonably be expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in a violation of Regulation M under the 1934 Act.
(xxxiii) No Rights of Immunity. Except as provided by laws or statutes generally applicable to transactions of the type described in this Agreement, neither the Company nor any of its respective properties, assets or revenues has any right of immunity under the laws of the Netherlands, New York or United States law, from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any Dutch, New York or United States federal court, from service of process, attachment upon or prior judgment, or attachment in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement. To the extent that the Company or any of its respective properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings may at any time be commenced, the Company waives or will waive such right to the extent permitted by law and has consented to such relief and enforcement as provided in Section 18 of this Agreement.
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(xxxiv) Foreign Corrupt Practices Act. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxxv) Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xxxvi) OFAC. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or representative of the Company or any of its subsidiaries is an individual or entity (“Person”) currently the subject or target of any officially released sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), the Swiss Secretariat of Economic Affairs, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(xxxvii) Lending Relationship. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of any Underwriter and (ii) does not intend to use any of the proceeds from the sale of the Securities to repay any outstanding debt owed to any affiliate of any Underwriter.
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(xxxviii) Statistical and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure Package or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(xxxix) Cybersecurity. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or where it would not, singly or in the aggregate, result in a Material Adverse Effect, (A) to the knowledge of the Company, there has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, confidential data and databases (including the confidential data and information of their respective customers, employees, suppliers, vendors and any third-party confidential data maintained, processed or stored by the Company and its subsidiaries, and any such data processed or stored by third parties on behalf of the Company and its subsidiaries), equipment or technology (collectively, “IT Systems and Data”), (B) neither the Company nor its subsidiaries have been notified in writing, or have any knowledge, of any event or condition that is reasonably likely to result in any security breach or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data, (C) the Company and its subsidiaries have implemented commercially reasonable controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards and (D) to the knowledge of the Company, the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all applicable material judgments, orders, rules and regulations of any court, arbitrator or governmental or regulatory authority and contractual obligations relating to the privacy and security of their IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
(xl) Regulatory Compliance. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, each of the Company and its subsidiaries: (i) has operated and currently operates its business in compliance in all material respects with applicable provisions of the Health Care Laws (as defined below) of the Food and Drug Administration (“FDA”), the Department of Health and Human Services (“HHS”) and any comparable foreign or other regulatory authority to which they are subject (collectively, the “Applicable Regulatory Authorities”) applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, storage, import, export or disposal of any of the Company’s or its subsidiaries’ product candidates or any product manufactured or distributed by the Company and its subsidiaries; (ii) has not received any FDA Form 483, written notice of adverse finding, warning letter, untitled letter or other correspondence or written notice from any court or arbitrator or governmental or regulatory authority alleging or asserting non-compliance with (A) any Health Care Laws or (B) or any licenses, certificates, approvals, clearances, exemptions, authorizations, permits and supplements or amendments thereto required by any such Health Care Laws (“Regulatory Authorizations”); (iii) possesses all Regulatory Authorizations required to conduct its business as currently conducted, except where the failure to possess the same would not, individually or in the aggregate, have a Material Adverse Effect, and such Regulatory Authorizations are valid and in full force and effect and neither the Company nor any of its subsidiaries are in violation, in any material respect, of any term of any such Regulatory Authorizations; (iv) has not received written notice of any claim, action, suit, audit, survey, proceeding, hearing, enforcement, investigation, arbitration or other action from the Applicable Regulatory Authorities or any other third party alleging that any product of the Company is in material violation of any Health Care Laws or Regulatory Authorizations and has no knowledge that the Applicable Regulatory Authorities or any other third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (v) has not received written notice that any of the Applicable Regulatory Authorities has taken, is taking or intends to take action to limit, suspend, modify or revoke any material Regulatory Authorizations and has no knowledge that any of the Applicable Regulatory Authorities is considering such action; (vi) has filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Health Care Laws or Regulatory Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were materially complete and correct on the date filed (or were materially corrected or supplemented by a subsequent submission); (vii) is not a party to or have any ongoing reporting obligations pursuant to any corporate integrity agreements, deferred prosecution agreements, monitoring agreements, consent decrees, settlement orders, plans of correction or similar agreements with or imposed by any Applicable Regulatory Authority; and (viii) along with its employees, officers and directors has not been excluded, suspended or debarred from participation in any government health care program or human clinical research or, to the knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding, or other similar action that could reasonably be expected to result in debarment, suspension or exclusion. The term “Health Care Laws” means Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395-1395hhh (the Medicare statute); Title XIX of the Social Security Act, 42 U.S.C. §§ 1396-1396v (the Medicaid statute); the Federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b); the civil False Claims Act, 31 U.S.C. §§ 3729 et seq.; the criminal False Claims Act, 42 U.S.C. 1320a-7b(a); any criminal laws relating to health care fraud and abuse, including but not limited to 18 U.S.C. Sections 286, 287, 1001, 1035, 1347 and 1349, and the health care fraud criminal provisions under the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§ 1320d et seq., (“HIPAA”); the Civil Monetary Penalties Law, 42 U.S.C. §§ 1320a-7a and 1320a-7b; the Physician Payments Sunshine Act, 42 U.S.C. § 1320a-7h; the Exclusion Laws, 42 U.S.C. § 1320a-7; HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act, 42 U.S.C. §§ 17921 et seq.; the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301 et seq.; the Public Health Service Act, 42 U.S.C. §§ 201 et seq.; each as amended, and the regulations promulgated pursuant to such laws; and any similar foreign, federal, state and local laws and regulations.
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(xli) Manufacturing and Suppliers. To the Company’s knowledge, the manufacturing facilities and operations of its suppliers are operated in compliance in with all applicable statutes, rules, regulations and policies of the Applicable Regulatory Authorities, including, without limitation, the Health Care Laws, except for such non-compliance that would not, singly or in the aggregate reasonably be expected to result in a Material Adverse Effect.
(xlii) Studies, Tests and Trials. None of the Company’s product candidates have received marketing approval or licensure from any Applicable Regulatory Authority. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, all clinical and pre-clinical studies and trials conducted by or, to the knowledge of the Company, on behalf of or sponsored by the Company or its subsidiaries, or in which the Company or its subsidiaries has participated, with respect to the Company’s product candidates, including any such studies and trials that are described in the Registration Statement, General Disclosure Package and the Prospectus, or the results of which are referred to in the Registration Statement, General Disclosure Package and the Prospectus, as applicable (collectively, “Company Trials”), were, and if still pending are, to the Company's knowledge, being conducted in all material respects in accordance with the Health Care Laws, including, without limitation, current Good Clinical Practices and Good Laboratory Practices, and with standard medical and scientific research procedures and any applicable rules, regulations and policies of the jurisdiction in which such trials and studies are being conducted; the descriptions in the Registration Statement, General Disclosure Package and the Prospectus of the results of any Company Trials are accurate and complete descriptions in all material respects and fairly present the data derived therefrom; the Company has no knowledge of any other studies or trials not described in the Registration Statement, General Disclosure Package and the Prospectus, the results of which are inconsistent with or call into question the results described or referred to in the Registration Statement, General Disclosure Package and the Prospectus; the Company and each of its subsidiaries have not received, any written notices, correspondence or other communications from the Applicable Regulatory Authorities or any other governmental entity requiring or threatening the termination, material modification or suspension of Company Trials that are described in the Registration Statement, the General Disclosure Package and the Prospectus or the results of which are referred to in the Registration Statement, the General Disclosure Package and the Prospectus, other than ordinary course communications with respect to modifications in connection with the design and implementation of such studies or trials, and, to the Company’s knowledge, there are no reasonable grounds for the same. No investigational new drug application or comparable submission filed by or on behalf of the Company or any of its subsidiaries has been terminated or suspended by the FDA or any other Applicable Regulatory Authority. The Company has obtained (or caused to be obtained) informed consent by or on behalf of each human subject who participated in a Company Trial. In using or disclosing patient information received by the Company or any of its subsidiaries in connection with a Company Trial, the Company or such subsidiary has complied in all material respects with all applicable laws and regulatory rules or requirements, including, without limitation, HIPAA and the rules and regulations thereunder. To the Company’s knowledge, none of the Company Trials involved any investigator who has been disqualified as a clinical investigator or has been found by the FDA to have engaged in scientific misconduct.
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(xliii) Maintenance of Rating. At the date of this Agreement, neither the Company nor its subsidiaries have any debt securities or preferred shares that are rated by any “nationally recognized statistical rating agency” (as defined in Section 3(a)(62) of the 1934 Act).
(xliv) Dividend Restrictions. Other than as prohibited or restricted by law, no subsidiary of the Company is prohibited or restricted, directly or indirectly, from paying dividends to the Company, or from making any other distribution with respect to such subsidiary’s equity securities or from repaying to the Company or any other subsidiary of the Company any amounts that may from time to time become due under any loans or advances to such subsidiary from the Company or from transferring any property or assets to the Company or to any other subsidiary.
(b) Officer’s Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price per share set forth in Schedule A, that number of Initial Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof, subject, in each case, to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares.
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(b) Option Securities. In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase up to an additional [ ● ] Common Shares at the price per share set forth in Schedule A, less an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. The option hereby granted may be exercised for 30 days after the date hereof and may be exercised in whole or in part at any time from time to time upon notice by the Representatives to the Company setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities. Any such time and date of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days after the exercise of said option, nor in any event prior to the Closing Time. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to the total number of Initial Securities, subject, in each case, to such adjustments as BofAS in its sole discretion shall make to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of, the Initial Securities shall be made at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, New York 10022, or at such other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (New York City time) on the second (third, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance with the provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called “Closing Time”).
In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of, such Option Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representatives and the Company, on each Date of Delivery as specified in the notice from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company against delivery to the Representatives for the respective accounts of the Underwriters of the Securities to be purchased by them. It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase. BofAS, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.
Delivery of the Initial Securities and any Option Securities shall be made through the facilities of The Depository Trust Company.
SECTION 3. Covenants of the Company and CureVac. Each of the Company and CureVac covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the requirements of Rule 430A, and will notify the Representatives as soon as practicable, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
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(b) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give the Representatives notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representatives or counsel for the Underwriters shall reasonably object. The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith) and copies of all consents and certificates of experts. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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(e) Blue Sky Qualifications. The Company will use its reasonable best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may reasonably designate and to maintain such qualifications in effect so long as required to complete the distribution of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(f) Rule 158. The Company will timely file such reports pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”) as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(g) Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(h) Listing. The Company will use its reasonable best efforts to effect and maintain the listing of the Common Shares (including the Securities) on The Nasdaq Global Market.
(i) Restriction on Sale of Securities. During a period of 180 days from the date of the Prospectus, neither the Company nor CureVac will, without the prior written consent of BofAS and Jefferies, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any capital stock of the Company or CureVac, or any securities convertible into or exercisable or exchangeable for capital stock of the Company or CureVac or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Shares or other securities, in cash or otherwise. The foregoing sentence shall not apply to: (A) the Securities to be sold hereunder, (B) any Common Shares issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (C) any Common Shares issued or options to purchase Common Shares granted pursuant to existing employee benefit plans of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (D) any Common Shares issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (E) the filing by the Company of any registration statement on Form S-8 or a successor form thereto with respect to the registration of securities to be offered under any employee benefit or equity incentive plan referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (F) Common Shares or other securities issued in connection with a transaction that includes a commercial relationship (including strategic alliances, commercial lending relationships, joint ventures, licensing agreements, collaboration agreements and strategic acquisitions), provided that (i) the aggregate number of shares issued pursuant to this clause (F) shall not exceed 10.0% of the total number of outstanding Common Shares immediately following the issuance and sale of the Common Shares and (ii) the recipient of any such Common Shares or securities issued pursuant to this clause (F) during the 180-day restricted period shall enter into an agreement substantially in the form of Exhibit [A] hereto, and (G) the issue, transfer or exchange any Common Shares pursuant to the Corporate Reorganization described in the Registration Statement, the General Disclosure Package and the Prospectus.
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(j) Long-Term Incentive Plan. With respect to (i) the legacy management stock option plan of CureVac AG defined in aforementioned registration statement of the Company on Form F 1 (No. 333-240076) as the Legacy Management Stock Option Plan, (ii) the virtual share plan of CureVac AG defined in such registration statement as the Prior VSOP, (iii) the modified virtual share plan of CureVac AG defined in such registration statement as the New VSOP and (iv) the Company’s long-term incentive plan defined in such registration statement as the Plan and effective as of the change of the Company’s legal form into a Dutch public company with limited liability (naamloze vennootschap) (together, the “LTIPs”), Company agrees that, prior to the completion of the 180-day restricted period referred to in Section 3(i), it will neither (1) amend, supplement or otherwise alter the lock-up period of the LTIPs nor (2) waive any of the restrictions on transfer, sale or disposition set forth in the LTIPs.
(k) Lockup Waiver. If BofAS and Jefferies, in their sole discretion, agree to release or waive the restrictions set forth in a lock-up agreement described in Section 5(m) hereof for an officer or director of the Company or CureVac and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, each of the Company and CureVac agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit G hereto through a major news service at least two business days before the effective date of the release or waiver.
(l) Reporting Requirements. The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations. Additionally, the Company shall report the use of proceeds from the issuance of the Shares as may be required under Rule 463 under the 1933 Act.
(m) Issuer Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representatives, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule B-2 hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representatives. The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
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(n) Certification Regarding Beneficial Owners. The Company will deliver to the Representatives, on the date of execution of this Agreement, a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Company undertakes to provide such additional supporting documentation as the Representatives may reasonably request in connection with the verification of the foregoing certification.
(o) Corporate Reorganization. Each of the Company and CureVac will use commercially reasonable efforts to complete the transactions comprising the Corporate Reorganization as, and within the time period, described in the Registration Statement, the General Disclosure Package and the Prospectus.
(p) Testing-the-Waters Materials. If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
(q) Emerging Growth Company Status. The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (i) completion of the distribution of the Securities within the meaning of the Securities Act and (ii) completion of the 180 -day restricted period referred to in Section 3(i).
(r) Tax Indemnity. The Company will indemnify and hold harmless the Underwriters against any Transfer Taxes, including any interest and penalties, which are required to be paid on (i) the execution, delivery and performance of this Agreement, or (ii) the issuance and delivery of the Securities in the manner contemplated by this Agreement and the Prospectus.
(s) No Withholding Taxes. The Company agrees that all amounts payable hereunder shall be paid free and clear of, and without any deduction or withholding for or on account of, any current or future taxes, levies, imposts, duties, charges or other deductions or withholdings levied in any jurisdiction from or through which payment is made on behalf of the Company, unless such deduction or withholding is required by applicable law, in which event the Company will pay additional amounts so that the persons entitled to such payments will receive the amount that such persons would otherwise have received had such deduction or withholding not been required; provided, however, that, upon request, each such person shall cooperate reasonably with the Company to reduce or eliminate amounts required to be so deducted or withheld.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and CureVac will pay or cause to be paid all expenses incident to the performance of their obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery of the Securities to the Underwriters, including any stock or other Transfer Taxes, (iv) the fees and disbursements of the Company’s and CureVac’s counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(e) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of any transfer agent or registrar for the Securities, (vii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged by the Company in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants (provided that the travel, lodging and any car travel expenses of representatives of the Underwriters shall be paid for by the Underwriters), and fifty percent (50%) of the cost of any aircraft chartered in connection with the road show (with the Underwriters agreeing to pay for the other fifty percent (50%) of the cost of the aircraft, as well as any other travel and lodging expenses of the Underwriters in connection with the road show), (viii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms of the sale of the Securities provided that the amount payable by the Company pursuant to clause (v) above and this clause (viii), excluding requisite filing fees, shall not exceed $25,000, (ix) the fees and expenses incurred in connection with the listing of the Securities on The Nasdaq Global Market and (x) the costs and expenses (including, without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for sale of the Securities made by the Underwriters caused by a breach of the representation contained in the third sentence of Section 1(a)(ii).
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(b) Termination of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5, Section 9(a)(i) or (iii), or Section 10 hereof, the Company shall reimburse the non-defaulting Underwriters for all of their reasonable, documented out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters, provided, however, that if this Agreement is terminated pursuant to Section 10, the Company shall not be required to reimburse any costs, expenses, fees and disbursements whatsoever of the defaulting Underwriters that have failed to purchase the Securities that they have agreed to purchase hereunder.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of each of the Company and CureVac contained herein or in certificates of any officer of the Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by each of the Company and CureVac of their covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement; Rule 430A Information. The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and, at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information. A prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame required by Rule 424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A.
(b) Opinion of Counsel for Company and CureVac. At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing Time, of Davis Polk & Wardwell LLP, counsel for the Company and CureVac, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit A hereto.
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(c) Opinion of Intellectual Property Counsel for the Company and CureVac. At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing Time, of each of ParkerHighlander PLLC and Graf von Stosch Patentanwaltsgesellschaft mbH, intellectual property counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibits B-1 and B-2 hereto.
(d) Opinion of Dutch Counsel for the Company. At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing Time, of NautaDutilh N.V., Dutch counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit C hereto.
(e) Opinion of German Counsel for the Company and CureVac. At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing Time, of Rittershaus Rechtsanwälte Partnerschaftsgesellschaft mbB and Baker McKenzie, German counsel for the Company and CureVac, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters to the effect set forth in Exhibit D and Exhibit E, respectively, hereto.
(f) Opinion of Counsel for Underwriters. At the Closing Time, the Representatives shall have received the favorable opinion, dated the Closing Time, of Latham & Watkins LLP, counsel for the Underwriters, in such form and substance as satisfactory to the Underwriters.
(g) Officers’ Certificate (Company). At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the Chief Executive Officer or the President of the Company and of the chief financial or chief accounting officer of the Company, dated the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Company in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to their knowledge, contemplated.
(h) Officers’ Certificate (CureVac). At the Closing Time, the Representatives shall have received a certificate of the Chief Executive Officer or the President of CureVac and of the chief financial or chief accounting officer of CureVac, dated the Closing Time, to the effect that (i) the representations and warranties of CureVac in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time and (ii) CureVac has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time.
(i) Accountant’s Comfort Letter. At the time of the execution of this Agreement, the Representatives shall have received from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft a letter, dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.
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(j) Bring-down Comfort Letter. At the Closing Time, the Representatives shall have received from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (i) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.
(k) Approval of Listing. At the Closing Time, the Securities shall have been approved for listing on The Nasdaq Global Market, subject only to official notice of issuance.
(l) No Objection. FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(m) Lock-up Agreements. At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Exhibit F hereto signed by the persons listed on Schedule C hereto.
(n) Conditions to Purchase of Option Securities. In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company and any of its subsidiaries hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:
(i) Officers’ Certificate. A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company, and a certificate, dated such Date of Delivery and of the President or a Vice President of CureVac and of the chief financial or chief accounting officer of CureVac, each confirming that the certificates delivered at the Closing Time pursuant to Section 5(g) and 5(h) hereof remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. If requested by the Representatives, the favorable opinion of Davis Polk & Wardwell LLP, counsel for the Company and CureVac, together with the favorable opinion of ParkerHighlander PLLC and Graf von Stosch Patentanwaltsgesellschaft mbH, intellectual property counsel for the Company and CureVac, NautaDutilh N.V., Dutch counsel for the Company and Rittershaus Rechtsanwälte Partnerschaftsgesellschaft mbB and Baker McKenzie, German counsel to the Company and CureVac, each in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b), 5(c), 5(d), 5(e) and 5(f) hereof.
(iii) Opinion of Counsel for Underwriters. If requested by the Representatives, the favorable opinion of Latham & Watkins LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(f) hereof.
(iv) Bring-down Comfort Letter. If requested by the Representatives, a letter from Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft, in form and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 5(i) hereof, except that the “specified date” in the letter furnished pursuant to this paragraph shall be a date not more than three business days prior to such Date of Delivery.
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(o) Additional Documents. At the Closing Time and at each Date of Delivery (if any) counsel for the Underwriters shall have been furnished with such additional customary documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters.
(p) Termination of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing Time, the obligations of the several Underwriters to purchase the relevant Option Securities, may be terminated by the Representatives by notice to the Company at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections [1, 6, 7, 8, 13 and 14] shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. Each of the Company and CureVac agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430A Information, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto), or (B) in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, Prospectus or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(c) below) any such settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the reasonable fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
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provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(b) Indemnification of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including the Rule 430A Information, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Representatives. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
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SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Shares underwritten by it and distributed to the public.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number of Initial Securities set forth opposite their respective names in Schedule A hereto and not joint.
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SECTION 8. Representations, Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its officers or directors or any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination. The Representatives may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there has been, in the judgment of the Representatives, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or The Nasdaq Global Market, or (iv) if trading generally on The Nasdaq Global Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or (v) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that [Sections 1, 6, 7, 8, 13 and 14] shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or a Date of Delivery to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
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(ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement or, with respect to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and the Company to sell, the Option Securities to be purchased and sold on such Date of Delivery shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which does not result in a termination of the obligation of the Underwriters to purchase and the Company to sell the relevant Option Securities, as the case may be, either the (i) Representatives or (ii) the Company shall have the right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to BofAS at One Bryant Park, New York, New York 10036, attention of Syndicate Department (facsimile: (646) 855-3073), with a copy to ECM Legal (facsimile: (212) 230-8730) or Jefferies at 520 Madison Avenue New York, New York 10022, attention of General Counsel (facsimile: (646) 619-4437); notices to the Company or CureVac shall be directed to it at Friedrich-Miescher-Strasse 15, 72076, Tübingen, Germany, attention of Mr. Franz-Werner Haas.
SECTION 12. No Advisory or Fiduciary Relationship. Each of the Company and CureVac acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, any of its subsidiaries or their respective shareholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect to the offering of the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any of its subsidiaries on other matters) and no Underwriter has any obligation to the Company with respect to the offering of the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and CureVac and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering of the Securities and the Company has consulted its own respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 13. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
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(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 13, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
SECTION 14. Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriters and the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. Trial by Jury. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its shareholders and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION 16. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
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SECTION 17. Consent to Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum. Each party not located in the United States irrevocably appoints CureVac Inc. as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding that may be instituted in any state or federal court in the City and County of New York. With respect to any Related Proceeding, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled in the Specified Courts, and with respect to any Related Judgment, each party waives any such immunity in the Specified Courts or any other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or Related Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.
SECTION 18. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 19. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
SECTION 20. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 21. Affiliates. Sales of Common Shares made outside of the United States may be made by affiliates of the Underwriters acting as their agents.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours, | ||||
CureVac B.V. | ||||
By | ||||
Title: | ||||
CureVac AG | ||||
By | ||||
Title: | ||||
CONFIRMED AND ACCEPTED, | ||||
as of the date first above written: | ||||
BOFA SECURITIES, INC. | ||||
JEFFERIES LLC | ||||
CREDIT SUISSE SECURITIES (USA) LLC | ||||
By: | BOFA SECURITIES, INC. | |||
By | ||||
Authorized Signatory | ||||
By: | JEFFERIES LLC | |||
By | ||||
Authorized Signatory | ||||
By: | CREDIT SUISSE SECURITIES (USA) LLC | |||
By | ||||
Authorized Signatory |
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
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SCHEDULE A
The initial public offering price per share for the Securities shall be $[ ● ].
The purchase price per share for the Securities to be paid by the several Underwriters shall be $[ ● ], being an amount equal to the initial public offering price set forth above less $[ ● ] per share.
Name of Underwriter |
Number of
Initial Securities |
BofA Securities, Inc. | |
Jefferies LLC | |
Credit Suisse Securities (USA) LLC | |
Berenberg Capital Markets LLC | |
Kempen & Co U.S.A., Inc. | |
Total | [ ● ] |
Sch A-1
SCHEDULE B-1
Pricing Terms
1. The Company is selling [ ● ] Common Shares.
2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional [ ● ] Common Shares.
3. The initial public offering price per share for the Securities shall be $[ ● ].
Sch B-1
SCHEDULE B-2
Free Writing Prospectuses
Sch B-2
SCHEDULE C
List of Persons and Entities Subject to Lock-up
Sch C-1
Exhibit A
FORM OF OPINION OF COMPANY’S
AND CUREVAC’S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
Exhibit A-1
Exhibit B-1
FORM OF OPINION OF PARKERHIGHLANDER PLLC, THE COMPANY’S AND CUREVAC’S INTELLECTUAL PROPERTY COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(c)
Exhibit B-1
Exhibit B-2
FORM OF OPINION OF GRAF VON STOSCH PATENTANWALTSGESELLSCHAFT MBH, THE COMPANY’S AND CUREVAC’S INTELLECTUAL PROPERTY COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(c)
Exhibit B-2
Exhibit C
FORM OF OPINION OF NAUTADUTILH N.V., THE COMPANY’S DUTCH COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(d)
Exhibit C-1
Exhibit D
FORM OF OPINION OF Rittershaus Rechtsanwalte Partnerschaftsgesellschaft mbB, THE COMPANY’S AND CUREVAC’S GERMAN COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(e)
Exhibit D-1
Exhibit E
FORM OF OPINION OF BAKER MCKENZIE, THE COMPANY’S AND CUREVAC’S GERMAN COUNSEL TO BE DELIVERED
PURSUANT TO SECTION 5(f)
Exhibit E-1 |
Exhibit F
Form of
lock-up from directors, officers or other stockholders
pursuant to Section 5(m)
Exhibit F-1
Exhibit G
Form of Press Release
TO BE ISSUED PURSUANT TO SECTION 3(j)
CureVac B.V.
[Date]
CureVac B.V. (the “Company”) announced today that BofA Securities, Inc. and Jefferies LLC, the lead book-running managers in the Company’s recent public sale of [ ● ] common shares, is [waiving] [releasing] a lock-up restriction with respect to [ ● ] of the Company’s common shares held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on [ ● ], 2020, and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
Exhibit G-1
Exhibit 10.41
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LONG-TERM INCENTIVE PLAN
CUREVAC N.V.
INTRODUCTION
Article 1
1.1 | This document sets out the Company's long-term incentive plan for employees, officers and other service providers who qualify as Eligible Participants. |
1.2 | The main purposes of this Plan are: |
a. | to attract, retain and motivate Participants with the qualities, skills and experience needed to support and promote the growth and sustainable success of the Company and its business; and |
b. | to incentivise Participants to perform at the highest level and to further the best interests of the Company, its business and its stakeholders. |
1.3 | This Plan is effective as of the consummation of the IPO. |
DEFINITIONS AND INTERPRETATION
Article 2
2.1 | In this Plan the following definitions shall apply: |
Article | An article of this Plan. | |
Award | A grant under this Plan in the form of one or more Options, SARs, Shares of Restricted Stock, RSUs, Other Awards, or a combination of the foregoing. | |
Award Agreement | A written agreement between the Company and a Participant, substantially in the form of Annex A to this Plan, evidencing the grant of an Award to such Participant and containing such terms as the Committee may determine, consistent with and subject to the terms of this Plan. | |
Bad Leaver | A Participant who ceases to be an Eligible Participant for Cause, including a situation where the Participant resigns and the Committee determines that an event has occurred with respect to that Participant which constitutes Cause. |
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Cause |
With respect to a Participant, "cause" as defined in such Participant's employment, service or consulting agreement with the Company or a Subsidiary, or if not so defined (and unless determined otherwise in the applicable Award Agreement or by the Committee):
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a. | such Participant's indictment for any crime which (i) constitutes a felony, (ii) has, or could reasonably be expected to have, an adverse impact on the performance of such Participant's services to the Company and/or any Subsidiary or (iii) has, or could reasonably be expected to have, an adverse impact on the business and/or reputation of the Company and/or any Subsidiary; |
b. | such Participant having been the subject of any order, judicial or administrative, obtained or issued by any governmental or regulatory body for any securities laws violation involving fraud, market manipulation, insider trading and/or unlawful dissemination of non-public price-sensitive information; |
c. | such Participant's wilful violation of the Company's code of conduct, insider trading policy or other internal policies and regulations established by the Company and/or any Subsidiary, in each case to the extent applicable to the Participant concerned; |
d. | gross negligence or wilful misconduct in the performance of such Participant's duties for the Company and/or any Subsidiary or wilful or repeated failure or refusal to perform such duties; |
e. | material breach by such Participant of any employment, service, consulting or other agreement entered into between such Participant on the one hand and the Company and/or any Subsidiary on the other; |
f. | conduct by such Participant which should be considered as an urgent cause within the meaning of Section 7:678 DCC, irrespective of whether that provision applies to such Participant's relationship with the Company and/or any Subsidiary; and |
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g. | such other acts or omissions to act by such Participant as reasonably determined by the Committee, |
provided that the occurrence of an event described in paragraphs c. through e. above shall only constitute Cause if and when such event has not been cured or remedied by the relevant Participant within thirty days after the Company has provided written notice to such Participant.
Change of Control |
The occurrence of any one or more of the following events:
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a. | the direct or indirect change in ownership or control of the Company effected through one transaction, or a series of related transactions within a twelve-month period, as a result of which any Person or group of Persons acting in concert, directly or indirectly acquires (i) beneficial ownership of more than half of the Company's issued share capital and/or (ii) the ability to cast more than half of the voting rights in the General Meeting; |
b. | at any time during a period of twelve consecutive months, individuals who at the beginning of such period constituted the Management Board and/or the Supervisory Board cease to constitute a majority of members of the Management Board and/or the Supervisory Board, as applicable, provided that any new member of the Management Board or the Supervisory Board who was nominated for appointment by the Supervisory Board by a vote of at least a majority of the Supervisory Directors who either were Supervisory Directors at the beginning of such twelve-month period or whose nomination for appointment was so approved, shall be considered as though such individual were a member of the Management Board or the Supervisory Board, as applicable, at the beginning of such twelve-month period; |
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c. | the consummation of a merger, demerger or business combination of the Company or any Subsidiary with another Person, unless such transaction results in the shares in the Company's capital outstanding immediately prior to the consummation of such transaction continuing to represent (either by remaining outstanding or by being converted into, or exchanged for, voting securities of the surviving or acquiring Person or a parent thereof) at least half of the voting rights in the General Meeting or in the shareholders' meeting of such surviving or acquiring Person or parent outstanding immediately after the consummation of such transaction; |
d. | the consummation of any sale, lease, exchange or other transfer to any Person or group of Persons acting in concert, not being Subsidiaries, in one transaction or a series of related transactions within a twelve-month period, of all or substantially all of the business of the Company and its Subsidiaries; or |
e. | subject to Article 10, such other event which the Committee determines to constitute a change of control in respect of the Company. |
Committee |
Any of the following bodies, as applicable:
|
a. | the Management Board, to the extent the administration or operation of this Plan relates to the grant of Awards to Eligible Participants who are not Managing Directors or Supervisory Directors, as well as any other matter relating to such Awards; |
b. | the Supervisory Board, to the extent the administration or operation of this Plan relates to the grant of Awards to Eligible Participants who are members of the compensation committee established by the Supervisory Board, as well as any other matter relating to such Awards; or |
c. | the compensation committee established by the Supervisory Board for all other matters relating to the administration or operation of the Plan. |
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Company | CureVac N.V. |
Consultant | Any Person, other than a Managing Director, Supervisory Director, or Employee, who is an adviser or consultant engaged by the Company and/or a Subsidiary to render bona fide services to the Company and/or a Subsidiary. |
DCC | The Dutch Civil Code. |
Eligible Participant | Any Managing Director, Supervisory Director, Employee or Consultant. |
Employee | Any Person, other than a Managing Director or a Supervisory Director, who is an employee or officer of the Company and/or a Subsidiary. |
Exercise Date | The date on which an Award is duly exercised by or on behalf of the Participant concerned. |
Exercise Price | The exercise price applicable to an Award. |
FMV | The closing price of a Share on the relevant date (or, if there is no reported sale of Shares on such date, on the last preceding date on which any such reported sale occurred) on the principal stock exchange where Shares have been admitted for trading, unless determined otherwise by the Committee. |
General Meeting | The Company's general meeting of shareholders. |
Good Leaver | A Participant who ceases to be an Eligible Participant and who is not a Bad Leaver. |
Grant Date | The date on which the Committee decides to grant an Award, or such later effective date applicable to such Award as may be determined by the Committee. |
IPO | The Company's initial public offering of its Shares. |
IPO Replacement Options |
The Options granted with effect from or after the Company's conversion into a public company with limited liability (naamloze vennootschap) in substitution and exchange for:
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a. | any options for series A shares in CureVac AG under the CureVac AG legacy management stock option plan that was in place prior to the consummation of the IPO; and |
b. | any virtual shares (Beteiligungspunkte) under the modified CureVac AG virtual share plan (which, for the avoidance of doubt, shall not include the Prior VSOP Virtual Shares) that was in place prior to the consummation of the IPO. |
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Management Board | The Company's management board. |
Managing Director | A member of the Management Board. |
Option | The right to subscribe for, or otherwise acquire, Plan Shares. |
Other Award | An Award which does not take the form of an Option, SAR, Share of Restricted Stock or RSU, and which 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 which may influence the value of Shares, including cash-settled financial instruments and financial instruments which are convertible into or exchangeable for Plan Shares. |
Participant | The holder of an Award, including, as the context may require, the rightful heir(s) of a previous holder of such Award having acquired such Award as a result of the death of such previous holder. |
Performance Criteria | The performance criteria applicable to an Award. |
Person | A natural person, partnership, company, association, cooperative, mutual insurance society, foundation or any other entity or body which operates externally as an independent unit or organisation. |
Plan | This long-term incentive plan. |
Plan Share | A Share underlying an Award. |
Prior VSOP Virtual Shares | The virtual shares (Beteiligungspunkte) outstanding immediately prior to the consummation of the IPO under the CureVac AG virtual share plan that was in place prior to the consummation of the IPO. |
Prior VSOP Virtual Shares (Adjusted) | The number of Prior VSOP Virtual Shares multiplied by the ratio for exchanging series A shares in CureVac AG for Shares in connection with the corporate reorganization of the Company and CureVac AG that was implemented immediately prior the IPO. |
Replacement Award | Except for IPO Replacement Options, an Award granted in assumption of, or in substitution or exchange for, long-term incentive awards previously granted by a Person acquired (or whose business is acquired) by the Company or a Subsidiary or with which the Company or a Subsidiary merges or forms a business combination, as reasonably determined by the Committee. |
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Restricted Stock | Plan Shares subject to such restrictions as the Committee may impose, including with respect to voting rights and the right to receive dividends or other distributions made by the Company. | |
RSU | The right to receive, in cash, in assets, in the form of Plan Shares valued at FMV, or a combination thereof, the FMV of one Share on the Exercise Date. | |
SAR | The right to receive, in cash, in assets, in the form of Plan Shares valued at FMV, or a combination thereof, the excess of the FMV of one Share on the applicable Exercise Date over the applicable Exercise Price. | |
Section 409A IRC | Section 409A of the United States Internal Revenue Code of 1986, as amended, and the rules, regulations and guidance promulgated pursuant thereto; any reference to a provision in this Code shall include any successor provision thereto. | |
Section 457A IRC | Section 457A of the United States Internal Revenue Code of 1986, as amended, and the rules, regulations and guidance promulgated pursuant thereto; any reference to a provision in this Code shall include any successor provision thereto. | |
Share | An ordinary share in the Company's capital. | |
Subsidiary | A subsidiary of the Company within the meaning of Section 2:24a DCC. | |
Supervisory Board | The Company's supervisory board. | |
Supervisory Director | A member of the Supervisory Board. |
2.2 | References to statutory provisions are to those provisions as they are in force from time to time. |
2.3 | Terms that are defined in the singular have a corresponding meaning in the plural. |
2.4 | Words denoting a gender include each other gender. |
2.5 | Except as otherwise required by law, the terms "written" and "in writing" include the use of electronic means of communication. |
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ADMINISTRATION
Article 3
3.1 | This Plan shall be administered by the Committee. The Committee's powers and authorities under this Plan include the authority to perform the following matters, in each case consistent with and subject to the terms of this Plan: |
a. | designating Persons to whom Awards are granted; |
b. | deciding to grant Awards; |
c. | determining the form(s) and type(s) of Awards being granted and setting the terms and conditions applicable to such Awards, including: |
i. | the number of Plan Shares underlying Awards; |
ii. | the time(s) when Awards may be exercised or settled in whole or in part; |
iii. | whether, to which extent, and under which circumstances Awards may be exercised or settled in cash or assets (including other Awards), or a combination thereof, in lieu of Plan Shares and vice versa; |
iv. | whether, to which extent and under which circumstances Awards may be cancelled or suspended; |
v. | whether, to which extent and under which circumstances a Participant may designate another Person owned or controlled by him as recipient or beneficiary of his Awards; |
vi. | whether and to which extent Awards are subject to Performance Criteria and/or restrictive covenants (including non-competition, non-solicitation, confidentiality and/or Share ownership requirements); |
vii. | the method(s) by which Awards may be exercised, settled or cancelled; |
viii. | whether, to which extent and under which circumstances, the exercise, settlement or cancellation of Awards may be deferred or suspended; |
d. | amending or waiving the terms applicable to outstanding Awards (including Performance Criteria), subject to the restrictions imposed by Article 9 and provided that no such amendment shall take effect without the consent of the affected Participant(s), if such amendment would materially and adversely affect the rights of the Participant(s) under such Awards, except to the extent that any such amendment is made to cause this Plan or the Awards concerned to comply with applicable law, stock exchange rules, accounting principles or tax rules and regulations; |
e. | making any determination under, and interpreting the terms of, this Plan, any rules or regulations issued pursuant to this Plan and any Award Agreement; |
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f. | correcting any defect, supplying any omission or reconciling any inconsistency in the Plan or any Award Agreement; |
g. | settling any dispute between the Company and any Participant (including any beneficiary of his Awards) regarding the administration and operation of this Plan, any rules or regulations issued pursuant to this Plan, and any Award Agreement entered into with such Participant; and |
h. | making any other determination or taking any other action which the Committee considers to be necessary, useful or desirable in connection with the administration or operation of this Plan. |
3.2 | The Committee may issue further rules and regulations for the administration and operation of this Plan, consistent with and subject to the terms of this Plan. |
3.3 | All decisions of the Committee shall be final, conclusive and binding upon the Company and the Participants (including beneficiaries of Awards). |
AWARDS
Article 4
4.1 | Awards can only be granted to: |
a. | Eligible Participants; and |
b. | any other Person who has been extended an offer of employment or other service, as a result of which the Committee reasonably expects such Person to become an Eligible Participant within twelve months after the Grant Date, provided that Awards granted to any such Person shall be treated as Awards held by a Bad Leaver if and when he has not become an Eligible Participant within such twelve-month period. |
4.2 | No Award is intended to confer any rights on the relevant Participant except as set forth in the applicable Award Agreement. In particular, no Award should be construed as giving any Participant the right to remain employed by or to continue to provide services for the Company or any Subsidiary. |
4.3 | Awards shall be granted for no consideration or for such minimal cash consideration as may be required by applicable law. |
4.4 | Awards may be granted alone or in addition or in tandem with any other Award and/or any award under any other plan of the Company or any Subsidiary. Awards granted in addition or in tandem with any other Award and/or any award under any other plan of the Company or any Subsidiary may be granted simultaneously or at different times. |
4.5 | Each Award shall be evidenced by an Award Agreement entered into between the Company and the Participant concerned. Until an Award Agreement has been entered into between the Company and the relevant Participant, no rights can be derived from the Awards concerned by such Participant. |
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4.6 | Plan Shares, including Awards in the form of Shares of Restricted Stock, shall be delivered in such form(s) as may be determined by the Committee and shall be subject to such stop transfer orders and other restrictions as the Committee may deem required or advisable. Furthermore, the Committee may determine that certificates for such Shares shall bear an appropriate legend referring to the terms, conditions and restrictions applicable thereto. |
4.7 | The terms and conditions applicable to Awards, including the time(s) when Awards vest in whole or in part and any applicable Performance Criteria, shall be set by the Committee and may vary between Awards and between Participants, as the Committee deems appropriate. The Committee may also determine whether and under which circumstances Awards shall be settled automatically upon vesting, without being exercised by the Participant. |
4.8 | The term of an Award shall be determined by the Committee, but shall not exceed ten years from the applicable Grant Date. Unless determined otherwise by the Committee, if the exercise of an Award is prohibited by applicable law or the Company's insider trading policy on the last business day of the term of such Award, such term shall be extended for a period of one month following the end of such prohibition. |
4.9 | Unless determined otherwise by the Committee, Awards cannot be transferred, pledged or otherwise encumbered, except by testament or hereditary law as a result of death of the Participant concerned. |
4.10 | If, as a result of changes in applicable law, accounting principles or tax rules and regulations, or due to a variation of the composition of the Company's issued share capital (including a share split, reverse share split, redenomination of the nominal value, or as a result of a dividend or other distribution, reorganization, acquisition, merger, demerger, business combination or other transaction involving the Company or a Subsidiary), an adjustment to this Plan, any Award Agreement and/or outstanding Awards is necessary to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under this Plan, the Committee may adjust equitably any or all of: |
a. | the number of Plan Shares available under this Plan; |
b. | the number of Plan Shares underlying outstanding Awards; and/or |
c. | the Exercise Price or other terms applicable to outstanding Awards. |
4.11 | Any rights, payments and benefits under any Award shall be subject to repayment and/or recoupment by the Company in accordance with applicable law, stock exchange rules and such policies and procedures as the Company may adopt from time to time. |
4.12 | The Company may withhold from any outstanding Award, any payment, issuance or transfer to be made under such Award, or any other compensation or amount owed by the Company to the Participant holding such Award, an amount (in cash, in assets, in the form of Shares or other Awards, or a combination thereof) equal to the withholding taxes and other costs due, or to be withheld, by the Company or any Subsidiary in respect of the grant, exercise or settlement of such Award. |
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TYPES OF AWARDS
Article 5
5.1 | The Committee may grant Awards in the form of Options, SARs, Shares of Restricted Stock, RSUs, Other Awards or a combination of the foregoing. |
5.2 | Upon the exercise or settlement of vested Options, the Company shall be obliged to deliver to the Participant concerned (or the beneficiary of such Options, as applicable), the Plan Shares underlying such Options (unless otherwise set forth in the Award Agreement). |
5.3 | Upon the exercise or settlement of vested SARs, the Company shall be obliged to pay to the Participant concerned (or the beneficiary of such SARs, as applicable) an amount equal to the number of Plan Shares underlying such SARs multiplied by the excess, if any, of the FMV of one Share on the applicable Exercise Date over the applicable Exercise Price. The Company may satisfy such payment obligation in cash, in assets, in the form of Shares valued at FMV, or a combination thereof, at the discretion of the Committee. |
5.4 | The exercise by a Participant of his rights attached to Shares of Restricted Stock shall be subject to such restrictions as the Committee may impose, including with respect to voting rights and the right to receive dividends or other distributions made by the Company. Upon the vesting of Shares of Restricted Stock, any such restrictions and conditions shall lapse with respect to those Shares. If an Award in the form of Shares of Restricted Stock is cancelled or otherwise terminated, the Participant shall be obliged to transfer all of his unvested Shares of Restricted Stock to the Company promptly and for no consideration. |
5.5 | Upon the exercise or settlement of vested RSUs, the Company shall be obliged to pay to the Participant concerned (or the beneficiary of such RSUs, as applicable) an amount equal to the number of Plan Shares underlying such RSUs multiplied by the FMV of one Share on the applicable Exercise Date. The Company may satisfy such payment obligation in cash, in assets, in the form of Shares valued at FMV, or a combination thereof, at the discretion of the Committee (unless otherwise set forth in the Award Agreement). |
5.6 | The Committee may determine that a Participant holding one or more RSUs is entitled to receive dividends and other distributions made by the Company on the Shares, as if such Participant held the Plan Shares underlying such RSUs. The Committee may impose restrictions with respect to such entitlement. |
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PERFORMANCE CRITERIA
Article 6
6.1 | The Committee may condition the right of a Participant to exercise one or more of his Awards, and the timing thereof, upon the achievement or satisfaction of such Performance Criteria as may be determined by the Committee, within periods specified by the Committee. |
6.2 | If an Award is subject to Performance Criteria which must be achieved or satisfied within a period specified by the Committee for that purpose, such Award can only be exercised or settled at or after the end of that period. |
6.3 | Performance Criteria may be measured on an absolute or relative basis and may be established on a Company-wide basis or with respect to one or more business units, divisions, Subsidiaries and/or business segments. Relative performance may be measured against a group of peer companies determined by the Committee, financial market indices and/or other objective and quantifiable indices. Performance Criteria may relate to performance by the Company and/or by the Participant concerned. |
6.4 | If the Committee determines that a change in the business, operations, group structure or capital structure of the Company, or other events or circumstances, render certain Performance Criteria applicable to outstanding Awards unsuitable or inappropriate, the Committee may amend or waive such Performance Criteria, in whole or in part, as the Committee deems appropriate. |
PLAN SHARES AVAILABLE FOR AWARDS
Article 7
7.1 | Subject to Articles 4.10 and 7.2, the Plan Shares underlying Awards (including, for the avoidance of doubt, Plan Shares underlying IPO Replacement Awards) which are not Replacement Awards, irrespective of whether such Awards have been exercised or settled, together with any Prior VSOP Virtual Shares (Adjusted) which have not yet been exercised or settled, shall not represent more than 15% of the Company's issued share capital from time to time. |
7.2 | Plan Shares underlying Awards, except for Replacement Awards, which expire, which are cancelled or otherwise terminated, or which are exercised or settled in cash or assets in lieu of Plan Shares, shall again be available under this Plan and shall not be counted towards the limit imposed by Article 7.1. |
VESTING, EXERCISE AND SETTLEMENT
Article 8
8.1 | Each Award Agreement shall contain the vesting schedule and, where relevant, delivery schedule (which may include deferred delivery later than the vesting dates) for the relevant Awards. |
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8.2 | Only vested Awards may be exercised or settled in accordance with their terms. An Award can only be exercised (to the extent it is not settled automatically) by or on behalf of the Participant holding such Award. |
8.3 | An Award can only be exercised through the use of an electronic system or platform to be designated by the Committee (if and when such system or platform has been set up by the Company), or otherwise by delivering written notice to the Company in a form approved by the Committee. |
8.4 | Subject to Article 9.1, the Committee shall determine the Exercise Price, provided that the Exercise Price for an Award which can be exercised or settled in the form of Plan Shares shall not be less than the aggregate nominal value of such Plan Shares. |
8.5 | Upon the exercise of an Award, the applicable Exercise Price must immediately be paid in cash, wire transfer of immediately available funds or by check payable to the order of the Company, provided that the Committee, subject to applicable law, may allow that such Exercise Price is satisfied on a cashless or net settlement basis, applying any of the following methods: |
a. | by means of an immediate sale of Plan Shares underlying the Award concerned, with sale proceeds equal to the Exercise Price being paid to the Company on behalf of the relevant Participant and any remaining sale proceeds (less applicable costs and taxes, if any) being paid to such Participant; |
b. | by means of the relevant Participant forfeiting his entitlement to receive part of the Plan Shares underlying the Award concerned at FMV on the Exercise Date and charging the aggregate nominal value of the remaining Plan Shares underlying such Award against the Company's reserves; |
c. | by means of the relevant Participant surrendering his entitlement to receive part of the Plan Shares underlying the Award concerned at FMV on the Exercise Date, against the Company becoming due an equivalent amount to such Participant and setting off that obligation against the Company's receivable with respect to payment of the applicable Exercise Price; or |
d. | by means of the relevant Participant surrendering and transferring Shares to the Company (which may include Plan Shares underlying the Award concerned) at FMV on the Exercise Date. |
8.6 | The Company is 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 option of the Company to satisfy all obligations for the payment of such taxes |
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8.7 | When an Award is exercised or settled in the form of Plan Shares, the Company shall, at the discretion of the Committee, subject to applicable law and the Company's insider trading policy: |
a. | issue new Plan Shares to the relevant Participant; or |
b. | transfer existing Plan Shares held by the Company to the relevant Participant, |
provided, in each case, that Plan Shares may be delivered in the form of book-entry securities representing those Plan Shares (or beneficial ownership of those Plan Shares entitling the holder to exercise or direct the exercise of voting rights attached thereto) credited to the securities account designated by the relevant Participant. Furthermore, Plan Shares may be delivered as described in the previous sentence to a Person designated by the relevant Participant, with the prior approval of the Committee, as beneficiary of his Award.
8.8 | If an Award is exercised or settled in the form of Plan Shares and such Award does not relate to a whole number of Plan Shares, the number of Plan Shares underlying such Award shall be rounded down to the nearest integer. |
PRICING RESTRICTIONS FOR OPTIONS AND SARS
Article 9
9.1 | Except for Replacement Awards, the Exercise Price for an Option or SAR shall not be less than the higher of: |
a. | the FMV of a Plan Share on the applicable Grant Date and, in case of a SAR being granted in connection with an Option, on the Grant Date of such Option; or |
b. | the nominal value of the Plan Share(s) underlying the Option. |
9.2 | Except as provided in Article 4.10, the Committee may not, without prior approval of the General Meeting, seek to effect any re-pricing of any outstanding "underwater" Option or SAR by: |
a. | amending or modifying the terms of such Option or SAR to lower the Exercise Price; |
b. | cancelling such Option or SAR and granting in exchange either (i) replacement Options or SARs having a lower Exercise Price, or (ii) Restricted Stock, RSUs or Other Awards; or |
c. | cancelling or repurchasing such Award for cash, assets or other securities. |
9.3 | Options and SARs will be considered to be "underwater" within the meaning of Article 9.2 at any time when the FMV of the Plan Shares underlying such Awards is less than the applicable Exercise Price. |
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U.S. PARTICIPANTS
Article 10
10.1 | With respect to any Award subject to Section 409A IRC and Section 457A IRC, this Plan and the applicable Award Agreement are intended to comply with the requirements of Section 409A IRC and Section 457A IRC, the provisions of this Plan and such Award Agreement shall be interpreted in a manner that satisfies the requirements of Section 409A IRC and Section 457A IRC, and this Plan shall be operated accordingly. If any provision of this Plan or any term or condition of any Award subject to Section 409A IRC and Section 457A IRC 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. |
10.2 | Notwithstanding any provision of this Plan to the contrary or any Award Agreement, a termination of employment shall not deemed to have occurred for purposes of any provision of an Award that is subject to Section 409A IRC providing for payment upon or following a termination of a Participant's employment unless such termination is also a "separation from service" and, for purposes of any such provision of such Award, references to a "termination", "termination of employment" or like terms shall mean "separation from service". |
10.3 | No Awards will be eligible for the payment of dividends or dividend equivalents, to the extent such Option or SAR is subject to Section 409A IRC and Section 457A IRC. |
10.4 | If all or part of any payments made, or other benefits conferred, under any Award subject to Section 409A IRC constitutes deferred compensation for purposes of Section 409A IRC as a result of a "separation from service" of the relevant Participant (other than due to his death) within the meaning of Section 409A IRC while such Participant is a "specified employee" under Section 409A IRC, then such payment or benefit shall not be made or conferred until six months and one business day have elapsed after the date of such "separation from service", except as permitted under Section 409A IRC. |
10.5 | If an Award subject to Section 409A IRC includes a "series of installment payments" within the meaning of Section 1.409A-2(b)(2)(iii) of the United States Treasury Regulations, the right of the relevant Participant to such 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 such an Award includes "dividend equivalents" within the meaning of Section 1.409A-3(e) of the United States Treasury Regulations, the right of the relevant Participant to such dividend equivalents shall be treated separately from the right to other amounts or other benefits under such Award. |
10.6 | For any Award subject to Section 409A IRC or Section 457A IRC that provides for accelerated distribution on a Change of Control of amounts that constitute "deferred compensation" as defined in Section 409A IRC and Section 457A IRC, if the event that constitutes such Change of 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 IRC), such amount shall not be distributed on such Change of Control but instead shall vest as of the date of such Change of Control and shall be paid on the scheduled payment date specified in the applicable Award Agreement, except to the extent that earlier distribution would not result in the relevant Participant incurring any additional tax, penalty, interest or other expense under Section 409A IRC and Section 457A IRC. |
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10.7 | Notwithstanding the foregoing in this Article 10, the tax treatment of the benefits provided under this Plan or any Award Agreement 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 a U.S. Participant on account of non-compliance with Section 409A IRC and Section 457A IRC. |
10.8 | Notwithstanding any provision of this Plan to the contrary or any Award Agreement, in the event the Committee determines that any Award may be subject to Section 409A IRC or Section 457A IRC, the Committee may adopt such amendments to this Plan and the applicable Award Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Committee determined are necessary or appropriate to: |
a. | exempt the Award from Section 409A IRC or Section 457A IRC and/or preserve the intended tax treatment of the benefits provided with respect to the Award; or |
b. | comply with the requirements of Section 409A IRC or Section 457A IRC and thereby avoid the application of any adverse tax consequences under such Sections. |
LEAVER
Article 11
11.1 | If a Participant becomes a Good Leaver, unless otherwise determined by the Committee or set forth in an Award Agreement: |
a. | all vested Awards that have not yet been exercised or settled must be exercised or settled in accordance with their terms within a period specified by the Committee and, if such Awards are not exercised or (through no fault of the Participant concerned) not settled within such period, they shall be cancelled automatically without compensation for the loss of such Awards; and |
b. | all unvested Awards of such Participant shall be cancelled automatically without compensation for the loss of the such Awards, unless the Committee decides otherwise. |
11.2 | If a Participant becomes a Bad Leaver, all vested Awards of such Participant which have not been exercised or settled, as well as all unvested Awards of such Participant, shall be cancelled automatically without compensation for the loss of such Awards. |
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CHANGE OF CONTROL
Article 12
12.1 | If long-term incentive awards are granted in assumption of, or in substitution or exchange for, outstanding Awards in connection with a Change of Control and the Committee has determined that such awards are sufficiently equivalent to the outstanding Awards concerned, then such outstanding Awards shall be cancelled and terminated upon the replacement awards being granted to the Participants concerned. |
12.2 | If, in connection with a Change of Control, outstanding Awards are not replaced by long-term incentive awards as described in Article 12.1, or are replaced by long-term incentive awards which the Committee does not consider to be sufficiently equivalent to such outstanding Awards, then such Awards shall immediately vest and, where relevant, settle in full, unless the Committee decides otherwise. |
12.3 | For purposes of this Article 12, awards shall not be considered to be "sufficiently equivalent" to outstanding Awards, if the underlying securities are not widely held and publicly traded on a regulated national stock exchange. |
LOCK-UP
Article 13
13.1 | In connection with any registration of the Company's securities, to the extent requested by the Company or the underwriters managing any public offering of the Company's securities, and except (a) as otherwise approved by the Committee, or (b) pursuant to any exceptions approved by the underwriters, Shares acquired by a Participant pursuant to the issuance, vesting, exercise, or settlement of any Award granted under the Plan may not be sold, transferred, or otherwise disposed of prior to such period following the effective date of such registration as designated by the underwriters, not to exceed 180 days following such registration. |
13.2 | The Company may impose stop-transfer instructions with respect to the Shares subject to the restriction stipulated by Article 13.1 until the end of the lock-up period referred to in that provision. |
DATA PROTECTION
Article 14
14.1 | The Company may process personal data relating to the Participants in connection with the administration and operation of this Plan. The personal data of the Participants which may be processed in this respect may include a copy of an identification document, contact details and bank and securities account numbers. Each Participant's personal data shall be stored by the Company for such time period as is necessary to administer such Participant's participation in the Plan or as otherwise permitted under applicable law. |
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14.2 | Each Participant's personal data shall be handled by the Company in a proper and careful manner in accordance with applicable law, including the General Data Protection Regulation (GDPR) and the rules and regulations promulgated pursuant thereto. Participants have the right to lodge complaints with an applicable supervisory authority regarding the Company's processing of personal data pursuant to this Plan. |
14.3 | The Company shall implement technical and organisational measures designed to protect personal data processed pursuant to Article 14.1. Personnel or third parties that have access to such personal data shall be bound by confidentiality obligations. |
14.4 | The Company shall abide by any statutory rights the Participants may have regarding their respective personal data processed pursuant to Article 14.1, which includes the right to access, rectification, erasure, restriction of processing, objection to processing and portability of such personal data. |
14.5 | In connection with the administration and operation of this Plan, the Company may transfer personal data processed pursuant to Article 14.1 to one or more third parties, provided that there is a legitimate interest in doing so. Where such third parties are located outside the European Economic Area in countries that are not considered to provide for an adequate level of data protection, the Company shall ensure that sufficient data protection safeguards are put in place, failing which explicit consent for such transfer shall be obtained from the Participant(s) concerned. |
14.6 | The contact details of the Company's data protection officer can be found on the Company's intranet or otherwise can be obtained from the Company's General Counsel. |
14.7 | The Company may establish one or more privacy policies providing further information on data protection and applying to the processing of personal data of the Participants by the Company in connection with the administration and operation of this Plan. |
AMENDMENTS
Article 15
15.1 | Except to the extent prohibited by applicable law and unless otherwise expressly provided in an Award Agreement or in this Plan, pursuant to a resolution to that effect, the Supervisory Board may amend, alter, suspend, supplement or terminate this Plan or any portion thereof, provided that no such amendment, alteration, suspension, supplementation or termination shall take effect without: |
a. | approval of the General Meeting, if such approval is required by applicable law or stock exchange rules; and/or |
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b. | the consent of the affected Participant(s), if such action would materially and adversely affect the rights of such Participant(s) under any outstanding Award, except to the extent that any such amendment, supplement or termination is made to cause this Plan to comply with applicable law, stock exchange rules, accounting principles or tax rules and regulations. |
15.2 | Notwithstanding anything to the contrary in the Plan, the Committee may amend the Plan or any Award Agreement in such manner as may be necessary or desirable to enable the Plan or such Award Agreement to achieve its stated purposes in any jurisdiction in a tax-efficient manner and in compliance with local laws, rules and regulations 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. |
GOVERNING LAW AND JURISDICTION
Article 16
This Plan shall be governed by and shall be construed in accordance with the laws of the Netherlands. Subject to Article 3.1 paragraph g., any dispute arising in connection with these rules shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.
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Annex A - Template Award Agreement
AWARD AGREEMENT
THIS AGREEMENT IS MADE ON [DATE] BETWEEN
1. | CureVac N.V., a public company with limited liability, having its corporate seat in Amsterdam (address: Friedrich-Miescher-Strasse 15, 72076 Tübingen, Germany, trade register number: 77798031) (the "Company"); and |
2. | [details Participant] (the "Participant"). |
NOW HEREBY AGREE AS FOLLOWS
1.1 | Capitalized terms used herein have the meanings ascribed thereto in the Company's long-term incentive plan (the "Plan"). |
1.2 | In the event of a conflict among the provisions of the Plan, this agreement and/or any descriptive materials concerning the Award governed by this agreement provided to the Participant, the provisions of the Plan will prevail. |
1.3 | The Participant has been granted an Award on the terms and subject to the conditions set out in the Plan and below: |
Form of Award | : | [number] [Options] [SARs] [Shares of Restricted Stock] [RSUs] [Other Awards] |
Grant Date | : | [date] |
[Exercise Price] | : | [[FMV] [other price] per [Option] [SAR] [Share of Restricted Stock] [RSU] [Other Award]] |
Automatic settlement | : | [Yes, on each vesting date] [No, exercised at the option of the Participant] |
Expiration Date | : | [date] |
Performance-based | : | [Yes, as specified below] [No] |
Vesting schedule | : | Starting on [the Grant Date] [date], [percentage]% of the Award vests each anniversary of [the Grant Date] [such date][, subject to the applicable Performance Criteria specified below] |
Delivery schedule | : | [Not applicable] [Within [one week] following each vesting date] |
Good Leaver | : | In case of the Participant becoming a Good Leaver, all vested Awards that have not yet been exercised or settled must be exercised or settled in accordance with their terms within [period] after the Participant became a Good Leaver. |
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1.4 | [The following Performance Criteria relating to the Company's performance apply with respect to this Award (determined on a consolidated basis):] |
Criteria | Measure |
Vesting percentage of time-vested [Options] [SARs] [Restricted Stock] [RSUs] [Other Awards]
|
|||||
0% | 20% | 40% | 60% | 80% | 100% | ||
Adjusted EBITDA | Increase over financial year compared to prior financial year, determined as at the end of the financial year on the basis of the Company's [audited] [annual][last quarter] financial statements (in [basis points]) | ||||||
VWAP | Increase over financial year compared to prior financial year, determined as at the end of the financial year by reference to Bloomberg screens (in [USD]) | ||||||
EPS | Increase over financial year compared to prior financial year, determined as at the end of the financial year by reference to Bloomberg screens (in [USD]) | ||||||
Adjusted FCF | Increase over financial year compared to prior financial year, determined as at the end of the financial year by reference to Bloomberg screens (in [USD]) | ||||||
ROIC | Percentage for the financial year |
22
|
RoE | Percentage for the financial year | ||||||
Relative TSR | Percentage for the financial year | ||||||
[Other metrics or targets] |
1.5 | [The following Performance Criteria relating to the Participant's performance apply with respect to this Award:] |
Criteria | Measure |
Vesting percentage of time-vested [Options] [SARs] [Restricted Stock] [RSUs] [Other Awards]
|
|||||
0% | 20% | 40% | 60% | 80% | 100% | ||
Strategic initiatives | Percentage of following achievements/milestones, as determined by the Committee: [describe achievements/milestones] | ||||||
CSR metrics | Percentage of following achievements/milestones, as determined by the Committee: [describe achievements/milestones] | ||||||
[Other metrics or targets] |
1.6 | The Participant grants an irrevocable power of attorney to the Company, with full right of substitution, to perform on the Participant's behalf all acts necessary for or conducive to the administration and operation of the Plan, including the following matters (in each case consistent with and subject to the terms of this Plan): |
a. | delivery of Plan Shares underlying Awards upon the exercise or settlement of such Awards in accordance with their terms; |
b. | effecting a cashless exercise of Awards; and |
c. | effecting a cancellation, termination and/or transfer to the Company of Awards in case the Participant would become a Bad Leaver. |
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1.7 | The power of attorney granted above also extends to the performance of acts of disposition (beschikkingshandelingen). The Company may act as counterparty of the Participant when acting under such power of attorney. |
1.8 | This agreement shall be governed by and shall be construed in accordance with the laws of the Netherlands. Any dispute arising in connection with this agreement shall be resolved in accordance with the dispute resolution provisions of the Plan. |
_____________________________
CureVac N.V.
Name :
Title :
_____________________________
[Participant]
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” and to the use of our report dated April 29, 2020, with respect to the consolidated financial statements of CureVac AG, included in Amendment No. 3 to the Registration Statement (Form F-1 No. 333-240076) and related Prospectus of CureVac B.V. for the registration of its common shares.
/s/ Dr. Elia Napolitano | /s/ Steffen Maurer |
Wirtschaftsprüfer | Wirtschaftsprüfer |
(German Public Auditor) | (German Public Auditor) |
Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft
Munich, Germany
August 10, 2020