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The Kingdom of Denmark
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Not applicable
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(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
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Dwight A. Kinsey
Rina R. Patel Duane Morris LLP 230 Park Avenue Suite 1130 New York, NY 10169 Telephone: (212) 818-9200 |
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Lars Lüthjohan Jensen
Mazanti-Andersen AdvokatPartnerselskab Amaliegade 10 DK-1256 Copenhagen K Denmark Telephone: +45 3314 3536 Facsimile: (212) 818-9606 |
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Emerging growth company ☒
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Date
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Transaction
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Share Capital
After Transaction |
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Price Per
Share (DKK) |
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August 2008
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| | Formation (Nominal DKK 1) | | | | | 250,000 | | | | | | 1.00 | | |
March 2014
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| | Cash contribution (Nominal DKK 1) | | | | | 268,148 | | | | | | 120.00 | | |
December 2014
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| | Cash contribution (Nominal DKK 1) | | | | | 316,751 | | | | | | 178.22 | | |
December 2015
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| | Cash contribution (Nominal DKK 1) | | | | | 336,549 | | | | | | 435.76 | | |
March 2016
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| | Cash contribution (Nominal DKK 1) | | | | | 342,880 | | | | | | 432.12 | | |
September 2017
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| | Cash contribution (Nominal DKK 1) | | | | | 358,806 | | | | | | 1,034.75 | | |
March 2019
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| | Transfer of reserves (Nominal DKK 1) | | | | | 717,612 | | | | | | 1.00 | | |
July 2019
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| | Cash contribution and debt conversion (Nominal DKK 2) | | | | | 836,994 | | | | | | 914.71(avg) | | |
December 2019
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| | Cash contribution (Nominal DKK 1) | | | | | 843,564 | | | | | | 1,037.50 | | |
September 2020
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| | Cash contribution (Nominal DKK 1) | | | | | 884,974 | | | | | | 1,002.90 | | |
October 2020
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| | Cash contribution (Nominal DKK 1) | | | | | 899,926 | | | | | | 1,008.45 | | |
January 2021
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| | Share split 2-for-1 (Nominal DKK 1) | | | | | 899,926 | | | | | | — | | |
January 2021
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| | Bonus share issuance 17-for-1(Nominal DKK 1) | | | | | 16,198,668 | | | | | | — | | |
February 2021
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| | Initial public offering (3,000,000 ADSs / 3,000,000 new share issue) | | | | | 19,198,668 | | | | | | 61.99 | | |
November 2021
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Follow-on public offering (3,942,856 ADSs / 3,942,856 new share issue)
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| | | | 23,141,524 | | | | | | 45.00 | | |
November 2021
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| | Cash contribution (Nominal DKK 1) | | | | | 23,203,808 | | | | | | 1.00 | | |
April 2022
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| | Cash contribution (Nominal DKK 1) | | | | | 23,257,880 | | | | | | 1.00 | | |
Grant Date
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Vesting Period
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Expiration Date
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Exercise Price
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Number of Warrants
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December 19, 2016
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Upon IPO Event
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December 31, 2036
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DKK 1.0
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| | | | 758,448 | | |
December 10, 2017
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Upon IPO Event
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December 31, 2036
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DKK 1.0
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| | | | 632,700 | | |
December 19, 2017
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Upon IPO Event
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December 31, 2036
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DKK 1.0
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| | | | 141,804 | | |
December 17, 2020
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See vesting principles below
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December 31, 2031
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DKK 1.0
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| | | | 757,620 | | |
June 2021
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See vesting principles below
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December 31, 2031
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DKK 1.0
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| | | | 62,147 | | |
December 7, 2021
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See vesting principles below
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December 31, 2031
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USD 5.38
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| | | | 523,599 | | |
March 11 2022
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See vesting principles below
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December 31, 2031
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USD 2,96
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| | | | 35,000 | | |
Exercised
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| | | | | | | | | | | | | (116,356) | | |
Lapsed or annulled without exercise
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| | | | | | | | | | | | | (81,416) | | |
| | | | | | | | | | | | | | 2,713,546 | | |
Persons depositing or withdrawing
shares or ADS holders must pay: |
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For:
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$5.00 (or less) per 100 ADSs (or portion of 100 ADSs) | | |
Issuance of ADSs, including issuances resulting from a distribution of shares or rights or other property
Cancellation of ADSs for the purpose of withdrawal, including if the deposit agreement terminates
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$.05 (or less) per ADS | | | Any cash distribution to ADS holders | |
Persons depositing or withdrawing
shares or ADS holders must pay: |
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For:
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A fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited for issuance of ADSs | | | Distribution of securities distributed to holders of deposited securities (including rights) that are distributed by the depositary to ADS holders | |
$0.05 (or less) per ADS per calendar year | | | Depositary services | |
Registration or transfer fees | | | Transfer and registration of shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares | |
Expenses of the depositary | | |
Cable and facsimile transmissions (when expressly provided in the deposit agreement)
Converting foreign currency to United States dollars
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Taxes and other governmental charges the depositary or the custodian has to pay on any ADSs or shares underlying ADSs, such as stock transfer taxes, stamp duty or withholding taxes | | | As necessary | |
Any charges incurred by the depositary or its agents for servicing the deposited securities | | | As necessary | |
Exhibits
Number |
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Description
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1.1** | | | Form of Underwriting Agreement | |
4.1 | | | Articles of Association of Evaxion Biotech A/S, as amended (incorporated by reference to Exhibit 1.1 to the Form 6-K (File No. 001-39950) filed with the Commission on May 19, 2022. | |
4.2 | | | | |
4.3 | | | Form of Deposit Agreement among Evaxion Biotech A/S, The Bank of New York Mellon, as depositary, and all owners and holders of American Depositary Shares issued thereunder (incorporated by reference to Exhibit 1 to the Form F-6 (File No. 333-252038) filed with the Commission on January 12, 2021) | |
5.1* | | | | |
23.1* | | | | |
23.2* | | | | |
24.1* | | | | |
107* | | | |
| | | | EVAXION BIOTECH A/S | | |||
| | | | By: | | |
/s/ Lars Staal Wegner, M.D.
Lars Staal Wegner, M.D.
Chief Executive Officer |
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Signature
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Title
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Date
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/s/ Lars Staal Wegner
Lars Staal Wegner
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Chief Executive Officer
(Principal Executive Officer) |
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May 20, 2022
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/s/ Jesper Nyegaard Nissen
Jesper Nyegaard Nissen
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Chief Operating Officer
(Principal Financial Officer and Principal Accounting Officer) |
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May 20, 2022
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/s/ Marianne Søgaard
Marianne Søgaard
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| | Chairwoman of the Board of Directors | | |
May 20, 2022
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/s/ Roberto Prego
Roberto Prego
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| | Director | | |
May 20, 2022
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/s/ Steven Projan
Steven Projan
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| | Director | | |
May 20, 2022
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/s/ Lars Holtug
Lars Holtug
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| | Director | | |
May 20, 2022
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/s/ Niels Iversen Møller
Niels Iversen Møller
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| | Director | | |
May 20, 2022
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| | | | EVAXION BIOTECH, INC. | | |||
| | | | By: | | |
/s/ Lori Hollander
Lori Hollander — Vice President, Financial Planning and Analysis
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Exhibit 5.1
Mazanti-Andersen Advokatpartnerselskab VAT: DK35892052
www.mazanti.dk |
Amaliegade 10 DK-1256 København K +45 3314 3536
Klosterbakken 12 DK-5000 Odense C +45 6314 1414 |
EVAXION BIOTECH A/S
Dr Neergaards Vej 5F
2970 Hørsholm
19.5.2022
Ref. 61047/LLJ
ID 2694
Lars Lüthjohan
Advokat
D: +45 3319 3749
M: +45 4028 3536
llj@mazanti.dk
Re. Registration with the US Securities and Exchange commission of securities of the Issuer
1. | Introduction |
1.1 | I act as Danish legal adviser to the Issuer in connection with the Registration. This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related Prospectus, other than as expressly stated herein with respect to the issue of the Registration Securities. Certain terms used in this opinion are defined in Annex 1 (Definitions). |
2. | Danish Law |
2.1 | This opinion is limited to Danish law in effect on the date of this opinion and we express no opinion with regard to the laws of any other jurisdiction. The opinion (including all terms used in it) is in all respects to be construed in accordance with Danish law. |
3. | Scope of inquiry |
3.1 | For the purpose of this opinion, I have examined, and relied upon the accuracy of the factual statements and compliance with the undertakings in, the following documents: |
3.1.1 | A copy of the Registration Statement. |
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3.1.2 | A copy of: |
(i) | the Issuer’s deed of incorporation and articles of association as in effect on today’s date; |
(ii) | a compiled summary from the Danish Business Authority dated as of today’s date; |
(iii) | the Owner’s register |
3.2 | In addition, I have examined such documents, and performed such other investigations, as I consider necessary for the purpose of this opinion. My examination has been limited to the text of the documents. With your consent, I have relied upon certificates and other assurances of officers of the Issuer and others as to factual matters without having independently verified such factual matters. |
4. | Assumptions |
4.1 | For the purpose of this opinion, I have made the following assumptions: |
4.1.1 | (i) The issue by the Issuer of the Registration Securities will have been duly authorised; and (ii) any pre-emption rights in respect of the issue of the Registration Securities will have been observed or validly excluded, in each case, in accordance with Danish law and the Issuer’s articles of association at the time of authorisation or of observance or exclusion. |
4.1.2 | The Issuer’s authorisation to the Board of Directors to increase the share capital at the time of issue of any Registration Securities will have been made in accordance with Danish law and the Issuer’s articles of association and sufficient to allow for the issue of the Registration Securities in the manner contemplated by the applicable Prospectus. |
4.1.3 | The resolutions of the Issuer’s Board of Directors to issue the |
Registration Securities will have been made in accordance with Danish law and the Issuer’s articles of association and sufficient to allow for the issue of the Registration Securities in the manner contemplated by the applicable Prospectus and will have been duly registered with the Danish Business Authority.
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4.1.4 | The Registration Securities will have been duly entered into the Owners’ Register by the Issuer’s share registrar, if required under Danish law. |
4.1.5 | The Registration Securities will have been: (i) issued in the form and manner prescribed by the Issuer’s articles of association and Danish law at the time of issue; and (ii) otherwise offered, issued, accepted and subscribed for (including full payment of the subscription price for the Registration Securities to an account in the name of the Issuer) by their subscribers in accordance with all applicable laws (including, for the avoidance of doubt, Danish law) and the Issuer’s articles of association. |
5. | Opinion |
5.1 | Based on the documents and investigations referred to and the assumptions made in paragraphs 3 and 4, I am of the following opinion: |
5.1.1 | Upon i) final and valid approval and resolution by the Board of Directors of the Issuer of the capital increase and of the number of shares, which may be represented by American Depositary Shares, to be issued and the price and allocation thereof, pursuant to Danish law and authorizations in the Issuer’s articles of association at the time of such approval, resolution and issue and ii) issuance, delivery and subscription therefor in the manner contemplated by the applicable Prospectus, Danish law and the Issuer’s articles of association, the shares, which may be represented by American Depositary Shares, will have been validly issued and will be fully paid and nonassessable. Nonassessable shall in this context mean, in relation to a share, that the issuer of the share has no right to require the holder of the share to pay to the issuer any amount (in addition to the amount required for the share to be fully paid) solely as a result of his or her shareholding. |
6. | Reliance |
6.1 | This opinion is an exhibit to the Registration Statement and may be relied upon for the purpose of the Registration. It may not be supplied, and its contents or existence may not be disclosed, to any person other than as an exhibit to (and therefore together with) the Registration Statement and may not be relied upon for any purpose other than the Registration. |
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6.2 | Any and all liability and other matters relating to this opinion shall be governed exclusively by Danish law and the Danish courts shall have exclusive jurisdiction to settle any dispute relating to this opinion. |
6.3 | The Issuer may: |
(i) | file this opinion as an exhibit to the Registration Statement; and |
(ii) | refer to Mazanti-Andersen Advokatpartnerselskab giving this opinion under the heading “Legal Matters” in the Prospectus included in the Registration Statement. |
6.4 | The previous sentence is no admittance from me (or Mazanti-Andersen Advokatpartnerselskab) that I am (or Mazanti-Andersen Advokatpartnerselskab is) in the category of persons whose consent for the filing and reference in that paragraph is required under Section 7 of the Securities Act or any rules or regulations of the SEC promulgated under it. |
Yours sincerely | |
/s/ Lars Lüthjohan | |
Lars Lüthjohan |
4
Annex 1 – Definitions
In this opinion:
“Danish law” means the law directly applicable in Denmark.
“Issuer” means Evaxion Biotech A/S, with corporate seat in Hørsholm, Denmark.
“Owners’ Register” means the Issuer’s owners’ register.
“Registration” means the registration of the Registration Securities with the SEC under the Securities Act.
“Registration Securities” means those shares (which may be represented by
American Depositary Shares), debt securities, warrants, units and depositary shares that the Issuer may sell and issue from time to time under the Registration Statement.
“Registration Statement” means the registration statement on Form F-3, including a base prospectus (the “Base Prospectus”), which provides that it will be supplemented by one or more prospectus supplements (each such prospectus supplement, together with the Base Prospectus, a “Prospectus”), filed on the date hereof by the Issuer to register with the SEC under the Securities Act the sale and issuance of shares (which may be represented by American Depositary Shares), debt securities, warrants, units and depositary shares by the Issuer.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
5
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form F-3) and related Prospectus of Evaxion Biotech A/S for the registration of up to $100,000,000 of ordinary shares including ordinary shares represented by American Depositary Shares, and to the incorporation by reference therein of our report dated March 31, 2022, with respect to the consolidated financial statements of Evaxion Biotech A/S included in its Annual Report (Form 20-F) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.
/s/ EY Godkendt Revisionspartnerselskab
Copenhagen, Denmark
May 20, 2022
Exhibit 107
Calculation of Filing Fee Tables
F-3
(Form Type)
Evaxion
Biotech A/S
(Exact Name of Registrant as Specified in its Charter)
N/A
(Translation of Registrant’s Name into English)
Table 1: Newly Registered and Carry Forward Securities
(1) | The ordinary shares registered hereby will be represented by the registrant’s American Depositary Shares (“ADSs”), each of which will represent one (1) ordinary share of the registrant. Such ADSs issuable on deposit of the ordinary shares registered hereby have been registered under a separate registration statements on Form F-6 (File No.: 333-252038). |
(2) | There are being registered hereunder such indeterminate number of ordinary shares as may from time to time be offered hereunder at indeterminate prices, in U.S. dollars or the equivalent thereof denominated in foreign currencies, as shall have aggregate initial offering price not to exceed $100,000,000. Pursuant to Rule 416 under the Securities Act, this registration statement also covers any additional ordinary shares that may be offered or issued in connection with any share split, share dividend or similar transactions. |
(3) | The proposed maximum offering price per ordinary share will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified pursuant to General Instruction II.C. of Form F-3 under the Securities Act. |
(4) | The maximum aggregate offering price reflected in the table has been estimated solely for purposes of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the “Securities Act”). |