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The Kingdom of Denmark
(State or other jurisdiction of incorporation or organization) |
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Not Applicable
(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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Large accelerated filer
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Accelerated Filer
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Non-accelerated filer
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Smaller Reporting Company
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Emerging Growth Company
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Page
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| | | | 53 | | | |
| | | | 53 | | | |
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Assumed Average
Purchase Price |
| |
Number of Ordinary Shares
Represented by ADS to be Sold by Lincoln Park in this Offering at the Assumed Average Purchase Price(1) |
| |
Percentage of Outstanding
Ordinary Shares Represented by ADSs After Giving Effect to the Additional Purchased Ordinary Shares Represented by ADSs Issued and Sold to Lincoln Park(2) |
| |
Proceeds from the Sale
of Ordinary Share Represented by ADSs Under the Purchase Agreement Registered in this Offering(1) |
| |||||||||
$ 1.92(3) | | | | | 4,649,250 | | | | | | 19.5% | | | | | $ | 8,926,560 | | |
$ 2.00 | | | | | 4,649,250 | | | | | | 19.5% | | | | | $ | 9,298,500 | | |
$ 3.00 | | | | | 4,649,250 | | | | | | 19.5% | | | | | $ | 13,947,750 | | |
$ 4.00 | | | | | 4,649,250 | | | | | | 19.5% | | | | | $ | 18,597,000 | | |
$ 5.00 | | | | | 4,649,250 | | | | | | 19.5% | | | | | $ | 23,246,250 | | |
$ 6.00 | | | | | 4,649,250 | | | | | | 19.5% | | | | | $ | 27,895,500 | | |
$ 7.00 | | | | | 4,649,250 | | | | | | 19.5% | | | | | $ | 32,544,750 | | |
$ 8.00 | | | | | 4,649,250 | | | | | | 19.5% | | | | | $ | 37,194,000 | | |
Date
|
| |
Transaction
|
| |
Share
Capital After Transaction |
| |
Price Per
Share (DKK) |
|
August 2008
|
| | Formation (Nominal DKK 1) | | | 250,000 | | | 1.00 | |
March 2014
|
| | 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
|
| |
Cash contribution and debt conversion
(Nominal DKK 2) |
| | 836,994 | | | 914.71(avg) | |
December 2019
|
| | Cash contribution (Nominal DKK 1) | | | 843,564 | | | 1,037.50 | |
Date
|
| |
Transaction
|
| |
Share
Capital After Transaction |
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Price Per
Share (DKK) |
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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)
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| |
19,198,668
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| | 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
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| | 45.00 | |
November 2021
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| | Cash contribution (Nominal DKK 1) | | |
23,203,808
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| | 1.00 | |
April 2022
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| | Cash contribution (Nominal DKK 1) | | |
23,257,880
|
| | 1.00 | |
June 2022
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| | Cash contribution (Nominal DKK 1) | | |
23,405,122
|
| | 1.00 | |
June 2022
|
| | Conversion of Debt (Nominal DKK 1) | | |
23,833,694
|
| | 19.5372 | |
Grant Date
|
| |
Vesting Period
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| |
Expiration Date
|
| |
Exercise
Price |
| |
Number of
Warrants |
| |||
December 19, 2016
|
| | Upon IPO Event | | |
December 31, 2036
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| |
DKK 1.0
|
| | | | 758,448 | | |
December 10, 2017
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| | Upon IPO Event | | |
December 31, 2036
|
| |
DKK 1.0
|
| | | | 632,700 | | |
December 19, 2017
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| | Upon IPO Event | | |
December 31, 2036
|
| |
DKK 1.0
|
| | | | 141,804 | | |
December 17, 2020
|
| |
See vesting principles below
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| |
December 31, 2031
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| |
DKK 1.0
|
| | | | 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
|
| | | | 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
|
| | | | 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
|
| | | | 35,000 | | |
June 14, 2022
|
| |
See vesting principles below
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| |
December 31, 2031
|
| |
USD 1.83
|
| | | | 65,000 | | |
Exercised
|
| | | | | | | | | | | | | (263,598) | | |
Lapsed or annulled without exercise
|
| | | | | | | | | | | | | (87,103) | | |
| | | | | | | | | | | | | | 2,625,617 | | |
Persons depositing or withdrawing
shares or ADS holders must pay: |
| |
For:
|
|
$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
|
|
$0.05 (or less) per ADS | | | Any cash distribution to ADS holders | |
Persons depositing or withdrawing
shares or ADS holders must pay: |
| |
For:
|
|
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 | |
| | |
Amount to be Paid*
|
| |||
SEC Registration Fee
|
| | | $ | 845 | | |
Legal Fees and Expenses*
|
| | | $ | 100,000 | | |
Accounting Fees and Expenses*
|
| | | $ | 25,000 | | |
Printing and Engraving*
|
| | | $ | 20,000 | | |
Miscellaneous Expenses*
|
| | | $ | 5,000 | | |
| | | | $ | 150,845 | | |
|
Signature
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Title
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Date
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/s/ Lars Staal Wegner
Lars Staal Wegner
|
| | Chief Executive Officer (Principal Executive Officer) | | |
July 7, 2022
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/s/ Bo Karmark
Bo Karmark
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| | Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | | |
July 7, 2022
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/s/ Marianne Søgaard
Marianne Søgaard
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| | Chairwoman of the Board of Directors | | |
July 7, 2022
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/s/ Roberto Prego
Roberto Prego
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| | Director | | |
July 7, 2022
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|
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/s/ Steven Projan
Steven Projan
|
| | Director | | |
July 7, 2022
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|
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/s/ Lars Holtug
Lars Holtug
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| | Director | | |
July 7, 2022
|
|
|
/s/ Niels Iversen Møller
Niels Iverson Møller
|
| | Director | | |
July 7, 2022
|
|
Exhibit 5.1
Mazanti-Andersen
| Amaliegade
10
Klosterbakken 12 +45 6314 1414 |
Evaxion Biotech A/S Dr Neergaards Vej 5F DK-2970 Hørsholm Denmark |
||
7.7.2022 Ref. 61047/LLJ ID 3159 |
Re. Registration with the US Securities and Exchange Commission of American Depositary Shares representing ordinary shares in the share capital of the Company | |
Lars Lüthjohan Attorney-at-law D: +45 3319 3749 M: +45 4028 3536 llj@mazanti.dk |
1. | Introduction |
1.1 | I act as Danish legal adviser to Evaxion Biotech A/S (the “Company”), in connection with the Registration Statement on Form F-1 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) for purposes of registering under the Securities Act of 1933 (the “Act”) the resale of 4,649,250 ordinary shares of the Company’s ordinary shares, Dkk 1 nominal value per share of which (i) 428,572 ordinary shares (the “Commitment Shares”) have been issued to Lincoln Park Capital Fund, LLC (“Lincoln Park”) and (ii) 4,220,678 ordinary shares (the “Purchase Shares” and together with the Commitment Shares, the “Shares”) are reserved for issuance pursuant to a purchase agreement between the Company and Lincoln Park, dated as of June 7, 2022 (the “Purchase Agreement”). This opinion is being rendered in connection with the filing of the Registration Statement with the Commission. 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. This opinion does not include an assessment or opinion as to whether the Shares have been subscribed at market price in accordance with the Danish Companies Act. |
1
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. |
3.1.2 | A copy of: |
(a) | the Company’s deed of incorporation and articles of association as in effect on today’s date; |
(b) | a compiled summary from the Danish Business Authority dated as of today’s date; and |
(c) | the Owners’ Register. |
3.2 | A copy of: |
(a) | the form of the Purchase Agreement. |
3.3 | 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 Company and others as to factual matters without having independently verified such factual matters. |
4. | Opinion |
4.1 | Based on the documents and investigations referred to in paragraph 3, I am of the following opinion: |
Upon
1. | issuance of the Shares against full payment therefor in the circumstances contemplated by the Purchase Agreement, |
2. | registration of the Board of Directors’ resolutions to increase the share capital with the Danish Business Authority, and |
2
3. | the due entry into the Owners’ Register of the Shares by the Company’s share registrar, |
the 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 shareholding.
5. | Reliance |
5.1 | This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act. It may not be supplied, and its contents or existence may not be disclosed, to any person other than as an exhibit to the Registration Statement and may not be relied upon for any purpose other than the Registration. |
5.2 | 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. |
5.3 | The Company may: |
(a) | file this opinion as an exhibit to the Registration Statement; and |
(b) | refer to Mazanti-Andersen Law Firm giving this opinion under the heading “Legal Matters” in the Registration Statement. |
3
5.4 | The previous sentence is no admittance from me (or Mazanti-Andersen Law Firm) that I am (or Mazanti-Andersen Law Firm 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.
“Company” means Evaxion Biotech A/S, with corporate seat in Hørsholm, Denmark.
“Owners’ Register” means the Company’s owners’ register.
“Registration” means the registration of the Shares with the SEC under the Securities Act.
“Registration Statement” means the registration statement on Form F-1 in relation to the Registration filed with the SEC on July 7, 2022, as amended and supplemented to the date hereof.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Purchase Agreement” means the purchase agreement dated June 7, 2022 among Lincoln Park Capital Fund, LLC, and the Company.
5
Exhibit 8.1
Mazanti-Andersen
www.mazanti.dk |
Amaliegade 10
Klosterbakken 12 +45 6314 1414 |
EVAXION BIOTECH A/S
Dr Neergaards Vej 5F
2970 Hørsholm
7.7.2022 Ref. 61047LLJ ID 3158
|
Opinion regarding the registration with the US Securities and exchange Commission of American Depositary Shares representing ordinary shares in the share capital of Evaxion Biotech A/S |
Lars Lüthjohan
Attorney-at-law | 1. | Introduction |
D: +45 3319 3749
M: +45 4028 3536 llj@mazanti.dk | 1.1 | I act as a Danish tax adviser to Evaxion Biotech A/S (the “Issuer”) with the Registration Statement. This opinion is being furnished in accordance with the requirements of Item 601(b)(8) 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 contained therein (the “Prospectus”), other than expressly stated herein with respect to the statements in the Registration Statement under the heading “Danish Tax Considerations” on page 40-45. 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. |
1
3.1.2 | A copy of the Issuer’s deed of incorporation and articles of association as in effect on today’s date; |
3.2 | In addition I have examined such documents, and performed such other investigations, as I consider 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. | Opinion |
4.1 | Based on the documents and investigations referred to in paragraph 3, I am of the following opinion: | |
The statements in the Registration Statement under the heading “Danish Tax considerations” on page 40-45, insofar they purport to constitute summaries of certain provisions of Danish tax law include accurate summaries thereof in all material respects. |
5. | Reliance |
5.1 | 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. |
5.2 | 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. |
5.3 | The Issuer may: |
(a) | file this opinion as an exhibit to the Registration Statement; and |
(b) | refer to Mazanti-Andersen Law Firm giving this opinion under the heading “Danish Tax Considerations” in the Registration Statement. |
2
5.4 | The previous sentence is no admittance from me (or Mazanti-Andersen Law Firm) that I am (or Mazanti-Andersen Law Firm 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 |
3
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.
“Registration” means the registration of the Shares with the SEC under the Securities Act.
“Registration Statement” means the registration statement on Form F-1 in relation to the Registration filed with the SEC on July 7, 2022, as amended and supplemented to the date hereof.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Shares” means up to those 4,649,250 ordinary shares, which may be represented by American Depositary Shares and that may be issued from time to time by the Company as set out in the Registration Statement.
“
4
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-1) and related Prospectus of Evaxion Biotech A/S for the registration of its ordinary 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
July 7, 2022
Exhibit 107
Calculation of Filing Fee Tables
F-1
(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
Security Type | Security Class Title | Fee Calculation or Carry Forward Rule | Amount Registered | Proposed Maximum Offering Price Per Unit(2) | Maximum Aggregate Offering Price(2) | Fee Rate | Amount
of Registration Fee | Carry Forward Form Type | Carry Forward File Number | Carry Forward Initial effective date |
Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward | |||||||||||||
Newly Registered Securities | ||||||||||||||||||||||||
Fees to Be Paid | Equity | Ordinary Shares DKK 1 nominal value (1) | 457(c)
457(h) | 4,649,250 | $1.96 | $9,112,530 | 0.0000927 | $845.00 | ||||||||||||||||
Fees Previously Paid | _ | _ | _ | _ | _ | _ | _ | |||||||||||||||||
Carry Forward Securities | ||||||||||||||||||||||||
Carry Forward Securities | ||||||||||||||||||||||||
Total Offering Amounts | $ | 9,112,530 | ||||||||||||||||||||||
Total Fees Previously Paid | N/A | |||||||||||||||||||||||
Total Fee Offsets | N/A | |||||||||||||||||||||||
Net Fee Due | $ | 845.00 |
(1) | The ordinary shares registered hereby will be represented by American Depositary Shares (“ADSs”), each of which will represent one ordinary share of the registrant. Such ADSs issuable on deposit of the ordinary shares registered hereby have been registered under a separate registration statement on Form F-6 (File No.: 333-252038). |
(2) | Estimated pursuant to Rules 457(c) and 457(h) under the Securities Act, solely for the purposes of calculating the registration fee and based on the average of the high and low prices of the Registrant’s common stock as reported on The Nasdaq Capital Market on June 30, 2022, which date is within five business days prior to the filing of this Registration Statement. |