Exhibit 1.1
Execution Version
VectivBio Holding AG
(a Swiss stock corporation (Aktiengesellschaft))
5,715,000 Ordinary Shares
UNDERWRITING AGREEMENT
Dated: June 14, 2022
VectivBio Holding AG
(a Swiss stock corporation (Aktiengesellschaft))
5,715,000 Ordinary Shares
UNDERWRITING AGREEMENT
June 14, 2022
SVB Securities LLC
Piper Sandler & Co.
as Representatives of the several
Underwriters to be named in the
within-mentioned Underwriting Agreement
c/o SVB Securities LLC
1301 6th Avenue
New York, New York 10019
c/o Piper Sandler & Co.,
1251 Avenue of the Americas, 6th Floor
New York, New York 10020
Ladies and Gentlemen:
VectivBio Holding AG, a Swiss stock corporation (Aktiengesellschaft) (the “Company”), confirms its agreement with SVB Securities LLC (“SVB Securities”) and Piper Sandler & Co. (“Piper Sandler”) 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 13 hereof), for whom SVB Securities and Piper Sandler are acting as representatives (in such capacity, the “Representatives”), with respect to (i) the issuance and sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of registered ordinary shares, nominal value CHF 0.05 per share, of the Company (“Ordinary Shares”) set forth in Schedule A 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 subscribe for and purchase all or any part of 857,250 additional Ordinary Shares. The aforesaid 5,715,000 Ordinary Shares (the “Initial Securities”) to be purchased by the Underwriters and all or any part of the 857,250 Ordinary 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-3 (No. 333-264653) covering the public offering and sale of certain securities, including the Securities, under the Securities Act of 1933, as amended (the “1933 Act”), which registration statement became effective on May 12, 2022. Such registration statement, as of any time, means such registration statement as amended by any post-effective amendments thereto to such time, including the exhibits and any schedules thereto at such time, the documents incorporated by reference therein at such time pursuant to Item 6 of Form F-3 under the 1933 Act and the documents otherwise
deemed to be a part thereof as of such time pursuant to Rule 430B (“Rule 430B”) under the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”), is referred to herein as the “Registration Statement;” provided, however, that the “Registration Statement” without reference to a time means such registration statement as amended by any post-effective amendments thereto as of the time of the first contract of sale for the Securities, which time shall be considered the “new effective date” of such registration statement with respect to the Securities within the meaning of paragraph (f)(2) of Rule 430B, including the exhibits and schedules thereto as of such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 6 of Form F-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to the Rule 430B. Each preliminary prospectus used in connection with the offering of the Securities, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 6 of Form F-3 under the 1933 Act, are collectively referred to herein as a “preliminary prospectus.” Promptly after execution and delivery of this Agreement, the Company will prepare and file a final prospectus supplement relating to the Securities in accordance with the provisions of Rule 424(b) (“Rule 424(b)”) of the 1933 Act Regulations. The final prospectus, in the form first furnished to the Underwriters for use in connection with the offering of the Securities, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 6 of Form F-3 under the 1933 Act, 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”).
As used in this Agreement:
“Applicable Time” means 7:15 P.M., New York City time, on June 14, 2022 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 (including any documents incorporated or deemed to be incorporated therein by reference) 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), as evidenced by its being specified in Schedule B-2 hereto.
“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.
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” in the Registration Statement, any preliminary prospectus or the Prospectus (or other references of like import) shall include all such financial statements and schedules and other information which is incorporated or deemed to be incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to the execution and delivery of this Agreement; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall include the filing of any document under the Securities Exchange Act of 1934, as amended (the “1934 Act”), which is incorporated or deemed to be incorporated by reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be, at or after the execution and delivery of this Agreement.
SECTION 1.Representations and Warranties.
(a)Representations and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, the Applicable Time, the Closing Time (as defined below) and the Date of Delivery (as defined below), and agrees with each Underwriter, as follows:
(i)Registration Statement and Prospectuses. The Company meets the requirements for use of Form F-3 under the 1933 Act. Each of the Registration Statement and any post-effective 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 and each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, the Applicable Time, the Closing Time and the Date of Delivery complied and will comply 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, and, in each case, at the Applicable Time, the Closing Time and the Date of Delivery complied and will comply 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.
The documents incorporated or deemed to be incorporated by reference in the Registration Statement, any preliminary prospectus and the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements
of the 1934 Act, and the rules and regulations of the Commission under the 1934 Act (the “1934 Act Regulations”).
(ii)Accurate Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time, on the date hereof, at the Closing Time or at the 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 and the Date of Delivery, 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) and 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 the 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. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not and 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.
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 second and third paragraphs under the heading “Underwriting – Price Stabilization, Short Positions and Penalty Bids” 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, including any document incorporated or deemed to be incorporated by reference therein, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified.
(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 D 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 filing 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. Ernst & Young AG which has certified the financial statements and supporting schedules included in the Registration Statement, the General Disclosure Package and the Prospectus is an independent registered public accounting firm as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public Company Accounting Oversight Board.
(viii)Financial Statements; Non-IFRS Financial Measures. The financial statements included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly the financial position of the Company and its consolidated Subsidiaries at the dates indicated and the statement of operations, shareholders’ 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 all material respects in accordance with IFRS the information required to be stated therein. 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. All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus, or incorporated by reference therein, regarding non-IFRS financial measures would comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1933 Act, to the extent applicable if such disclosures were “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission). The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission's rules and guidelines applicable thereto.
(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 (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) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares.
(x)Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing (to the extent this concept applies) under the laws of Switzerland and has requisite corporate power and authority to own, lease and operate its properties and conduct its business as now conducted and 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 the Company is duly qualified as a foreign corporation to transact business and is in good standing (to the extent this concept applies) or other equivalent local law status (if any), as applicable, in each jurisdiction where the ownership or leasing of its properties or the conduct of business requires such qualification, except where the failure to be so qualified or in good standing or other equivalent local law status (if any), as applicable, would not result in a Material Adverse Effect.
(xi)Good Standing of Subsidiaries. Each subsidiary of the Company listed on Schedule E hereto (each, a “Subsidiary” and, collectively, the “Subsidiaries”), which Schedule E represents all of the direct and indirect subsidiaries of the Company, has been duly incorporated or organized, as applicable, and is validly existing and in good standing (to the extent this concept applies) or other equivalent local law status (if any), as applicable, under the laws of the jurisdiction of its incorporation or organization, has requisite corporate or similar power and authority to own, lease and operate its properties and conduct its business as now conducted and 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 (to the extent this concept applies) or other equivalent local law status (if any), as applicable, in each jurisdiction where the ownership or leasing of its properties or the conduct of business requires such qualification, except where the failure to be so qualified or in good standing, or other equivalent local law status (if any), as applicable, 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 shares of each Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are 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 any Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary. The only Subsidiaries of the Company as of the completion of the offering are the Subsidiaries listed in note 1 to the consolidated and carve-out financial statements for the year ended December 31, 2021.
(xii)No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its Subsidiaries, on the one hand, and the directors, officers, shareholders, customers, suppliers or other affiliates of the Company or any of its Subsidiaries, on the other, that is required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that is not so described in such documents and in the General Disclosure Package.
(xiii)Capitalization. All of the issued and outstanding shares of the Company issued as at the date hereof 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 equity incentive 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). All of the issued shares of the Company have been duly authorized and validly issued in compliance with Swiss law and are fully paid and non-assessable. None of the issued shares of the Company were issued in violation of the preemptive or other similar rights of any securityholder of the Company.
(xiv)Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(xv)Authorization and Description of Securities. The Securities to be purchased by the Underwriters from the Company will have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement at the Closing Time or the Date of Delivery, as applicable, and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued in compliance with Swiss law and fully paid and non-assessable; and the statutory preemptive rights of the existing shareholders of the Company with respect to the issuance of the Securities will have been validly set aside. The Securities conform 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 solely by reason of being such a holder.
(xvi)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 and have been satisfied or waived.
(xvii)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), in force as at the date hereof or as expected to be in force immediately following the offering (B) in breach, default or violation of any of the terms or provisions of any agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument, as applicable, to which the Company or any of its Subsidiaries is a party, or to which any of their respective properties or assets are subject (collectively, “Agreements and Instruments”), or (C) in violation of any applicable 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, in the case of (B) and (C), for any such violation which would not, individually 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 the Company with its 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 of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, individually or in the aggregate, result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of the articles of association or similar organizational document of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. 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.
(xviii)Absence of Labor Dispute. To the knowledge of the Company, there is no strike, labor dispute, slowdown or work stoppage by the employees of any of its or any Subsidiary’s principal suppliers, manufacturers or contractors that is existing or imminent, which, in either case, would result in a Material Adverse Effect.
(xix)Absence of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity (including, without limitation, the U.S. Food and Drug Administration (the “FDA”), the Department of Justice (“DOJ”) or the European Medicines Agency (“EMA”)) now pending or, to the knowledge of the Company, threatened, against or affecting the Company or any of its Subsidiaries, which might result in a Material Adverse Effect, or which might 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 of its obligations hereunder; and the aggregate of all pending legal or governmental proceedings to which the Company or any such Subsidiary is a party, as applicable, 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, could not result in a Material Adverse Effect.
(xx)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.
(xxi)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 (A) 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 FINRA and (B) the filing and registration of the Initial Capital Increase (as defined in Section 3(a)(i)) and the Option Capital Increase (as defined in Section 4(b)(i)), if any, in the Commercial Register of the Canton of Basel-Stadt.
(xxii)Possession of Licenses and Permits. Each of the Company and its Subsidiaries possess such licenses, permits, exemptions, clearances, registrations, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities (including, without limitation, the FDA or the EMA) necessary to conduct the business now operated by them, except where the failure so to possess would not, individually or in the aggregate, result in a Material Adverse Effect. To the knowledge of the Company and its Subsidiaries, each of the Company and its Subsidiaries are and have been in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, individually 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, individually or in the aggregate, result in a Material Adverse Effect. The Company and its Subsidiaries have fulfilled and performed all of their material obligations with respect to such Governmental Licenses, and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Governmental Licenses. 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, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(xxiii)Title to Property. Each of the Company and its Subsidiaries has good and marketable title to all real property owned by them and good title to all other properties owned by them, as applicable, 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, individually 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, as applicable, 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 to the knowledge of the Company or any of its Subsidiaries, neither the Company nor any such Subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any such Subsidiary under any of the material leases or subleases mentioned above, or 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.
(xxiv)Possession of Intellectual Property. The Company and its Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, trademarks, service marks, trade names, copyrights, (including all applications and registrations relating to any of the foregoing), inventions, licenses, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), or other intellectual property described in the Registration Statement, the General Disclosure Package and the Prospectus as being owned or licensed by the Company or its Subsidiaries or which are necessary for the conduct of the Company’s business as currently conducted or as currently proposed to be conducted as described in the Registration Statement, the General Disclosure Package and the Prospectus (collectively, “Intellectual Property”). Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, to the Company’s knowledge (i) there are no unreleased liens or security interests which have been filed against any of the Intellectual Property owned by the Company; (ii) there are no third parties who have rights to any Intellectual Property, except for customary reversionary rights of third-party licensors with respect to Intellectual Property that is disclosed in the Registration Statement, General Disclosure Package and Prospectus as licensed to the Company, and the Company has taken all reasonable steps necessary to secure its interests in the Intellectual Property from its employees and contractors; (iii) there is no infringement, misappropriation or violation by third parties of any Intellectual Property; (iv) the Company is not infringing, misappropriating or violating the intellectual property rights of third parties; (v) the Company is the sole owner of the Intellectual Property owned by it and has the valid right to use such Intellectual Property; and (vi) no employee of the Company is in or has been in violation of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure
agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment with the Company. There is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others: (A) challenging the Company’s rights in or to any Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (B) challenging the validity, enforceability or scope of any Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; or (C) asserting that either the Company infringes or otherwise violates, or would, upon the commercialization of any product described in the Registration Statement, General Disclosure Package, and Prospectus as under development, infringe, misappropriate or violate, any patent, trademark, trade name, service name, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim. To the knowledge of the Company, the Company has complied with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company, and all such agreements are in full force and effect.
(xxv)Environmental Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not, individually or in the aggregate, result in a Material Adverse Effect, (A) to the knowledge of the Company, neither the Company nor any of its Subsidiaries is in violation of any applicable federal, state, local or foreign statute, law, rule, regulation, ordinance, code, 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 human health, 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 (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 knowledge of the Company, 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 or affecting the Company or any of its Subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxvi)Accounting Controls and Disclosure Controls. The Company and its Subsidiaries, on a consolidated basis, maintain effective 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 sufficient 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 consolidated 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; (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; and (E) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is
prepared in accordance with the Commission's rules and guidelines applicable thereto. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially negatively affected, or is reasonably likely to materially negatively affect, the Company’s internal control over financial reporting.
The Company and each of its Subsidiaries maintain an effective system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the 1934 Act Regulations) that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
(xxvii)Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(xxviii) Payment of Taxes. The Company and its Subsidiaries have filed all 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 taxes due pursuant to such returns or pursuant to any assessment received by the Company and its Subsidiaries, except (i) for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by the Company or (ii) insofar as the failure to pay such taxes would not result in a Material Adverse Effect. 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.
(xxix)Insurance. The Company and its Subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance 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 would not result in a Material Adverse Effect. Neither of the Company nor any of its Subsidiaries has been denied any insurance coverage which it has sought or for which it has applied.
(xxx)Fair Summary. The statements set forth in the Registration Statement, the General Disclosure Package and the Prospectus (i) under the caption “Description of Share Capital and Articles of Association”, insofar as they purport to constitute a summary of the terms of the Securities or insofar as they purport to describe the provisions of the laws and documents referred to therein, and (ii) under the caption “Material U.S. Federal Income Tax Considerations for U.S. Holders,” insofar as such statements purport to summarize provisions of U.S. federal income tax
laws and legal conclusions with respect thereto, fairly present, to the extent required by the Securities Act, in all material respects, such provisions and legal conclusions.
(xxxi)Investment Company Act. The Company is not required, and after giving effect to 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 knowledge of the Company, any affiliate of the Company has taken, nor will the Company or any affiliate take, directly or indirectly, any action which is designed, or would 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; provided however that any such stabilization or manipulation of the price of the Securities by the Underwriters in connection with the transactions contemplated by this Agreement shall be allowed, as applicable.
(xxxiii)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.
(xxxiv) 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 applicable money laundering statutes of the jurisdictions where the Company or any of its Subsidiaries conduct business, 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 best knowledge of the Company, threatened.
(xxxv)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 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 State Secretariat of Economic Affairs (“SECO”), the Swiss Directorate of International Law (“DIL”), the Crimea Region of Ukraine, the so-called Donetsk People’s Republic, the so-called
Luhansk People’s Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065 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 prohibiting such funding 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.
(xxxvi)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.
(xxxvii) Statistical and Market-Related Data. The statistical and market-related data or third-party studies included or cited in the Registration Statement, the General Disclosure Package or the Prospectus are based on or derived from sources which 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 or citations from such sources.
(xxxviii)Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included in the Registration Statement, the General Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(xxxix) Cybersecurity. (A) To the knowledge of the Company, there has been no material security breach or incident, including any unauthorized access to or disclosure, or other compromise of the confidentiality, integrity or availability of the Company’s or its Subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective employees, suppliers, vendors and any third party 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 of, and each of them have no knowledge of any event or condition that would reasonably be expected to result in any security breach or incident described in the preceding clause (A); and (C) the Company and its Subsidiaries have implemented commercially reasonable controls, policies, procedures, and technological safeguards designed to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data, including as required by applicable regulatory standards. The Company and its Subsidiaries are presently in compliance with all (i) applicable laws or statutes, (ii) judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, (iii) internal policies of the Company or its Subsidiaries and (iv) contractual obligations of the Company or its Subsidiaries relating to the privacy and security of IT Systems and Data, except, in each case, where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect.
(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 FDA, the Department of Health and
Human Services (“HHS”) and any comparable foreign or other regulatory authority or Governmental Entity to which they are subject, in Europe or elsewhere (collectively, the “Applicable Regulatory Authorities”); (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) 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 or non-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.; and 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 in Europe or elsewhere.
(xli)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 sponsored or conducted by or on behalf of the Company or its Subsidiaries, or in which the Company or its Subsidiaries has participated with respect to the Company’s product candidates, including without limitation, 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 in keeping 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 structure and 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 and any similar foreign laws and regulations in Europe or elsewhere. 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 or any other Applicable Regulatory Authority to have engaged in scientific misconduct.
(xlii)Manufacturing and Suppliers. To the Company’s knowledge, the manufacturing facilities and operations of its suppliers are operated in compliance 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.
(xliii)ERISA Compliance. (i) Any “Employee Benefit Plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) for which the Company or its ERISA Affiliates (as defined below) would have any liability (each, a “Plan”) has complied in all material respects with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to, ERISA and the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the “Code”), (ii) no Plan is subject to Section 412 of the Code or Section 302 or Title IV of ERISA , (iii) neither the Company nor any of its ERISA Affiliates has incurred or reasonably expects to incur any
obligation or liability under (A) Title IV of ERISA with respect to termination of, or withdrawal from, any Plan, (B) Sections 412 and 430, 4971, 4975 or 4980B of the Code or (C) Sections 302 and 303, 406, 4063 and 4064 of ERISA, (iv) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan, excluding transactions effected pursuant to a statutory or administrative exemption, (v) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification, (vi) there is no pending audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other governmental agency or any foreign regulatory agency with respect to any Plan that could reasonably be expected to result in liability to the Company, (vii) there has not occurred, nor is there reasonably likely to occur, a material increase in the aggregate amount of contributions required to be made to all Plans by the Company or any of its Subsidiaries in the current fiscal year of the Company and its Subsidiaries compared to the amount of such contributions made in the Company’s and its Subsidiaries’ most recently completed fiscal year, and (viii) the Company does not have any “accumulated postretirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106). “ERISA Affiliate” means, with respect to the Company, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Code of which the Company is a member.
(xliv)FPI Status. The Company is a “foreign private issuer” as defined in Rule 405 of the Securities Act.
(xlv)PFIC Status. Based on the nature of the Company’s income and the estimated value and composition of the Company’s assets, the Company does not believe that it was a “passive foreign investment company” (“PFIC”) for U.S. federal income tax purposes for its taxable year ended December 31, 2021.
(xlvi)Stamp Taxes. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no stamp duties or other issuance or transfer taxes are payable by or on behalf of the Underwriters in Switzerland or any political subdivision or taxing authority thereof solely in connection with (A) the execution, delivery and performance of this Agreement, (B) the issuance and delivery of the Securities in the manner contemplated by this Agreement and by the Registration Statement, the General Disclosure Package and the Prospectus or (C) the sale and delivery by the Underwriters of the Securities as contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus.
(xlvii)Payments in Foreign Currency. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, (i) all dividends and other distributions declared and payable on the Securities may under current laws and regulations of Switzerland be paid by the Company to the holder thereof in Swiss franc that may be converted into foreign currency and, except for certain restrictions with respect to national and international sanctions relating to certain countries, freely transferred out of Switzerland, and (ii) all such payments made to holders thereof or therein who are non-residents of Switzerland will not be subject to income or withholding taxes under laws and regulations of Switzerland or any political subdivision or taxing authority thereof or therein and will otherwise be free and clear of any other tax, duty, withholding or deduction in Switzerland or any political subdivision or taxing authority thereof or therein and without the necessity of obtaining any governmental authorization in Switzerland or any political subdivision or taxing authority thereof or therein.
(xlviii)Submission to Jurisdiction. The Company has the power to submit, and pursuant to Section 19 of this Agreement, has legally, validly, effectively and irrevocably submitted, to the
personal jurisdiction of each United States federal court and New York state court located in the Borough of Manhattan, in the City of New York, New York, U.S.A. (each, a “New York Court”), and the Company has the power to designate, appoint and authorize, and pursuant to Section 19 of this Agreement, has legally, validly, effectively and irrevocably designated, appointed and authorized an agent for service of process in any action arising out of or relating to this Agreement or the issuance and sale of the Securities contemplated hereby in any New York Court, and service of process effected on such authorized agent will be effective to confer valid personal jurisdiction over the Company as provided in Section 19 hereof.
(xlix)No 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 Swiss, 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 Swiss, 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 19 of this Agreement.
(l)Enforcement of Foreign Judgments. Any final judgment for a fixed or determined sum of money rendered by any U.S. federal or New York state court located in the State of New York having jurisdiction under its own laws in respect of any suit, action or proceeding against the Company based upon this Agreement would be recognized by the courts of Switzerland, without reconsideration or reexamination of the merits, subject to the restrictions described under the caption “Enforceability of Civil Liabilities” in the Registration Statement, the General Disclosure Package and the Prospectus, and the applicable bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors and secured parties in general, and laws or principles of general application (including, but not limited to, the abuse of rights (Rechtsmissbrauch) and the principle of good faith (Grundsatz von Treu und Glauben)).
(li)Valid Choice of Law. The choice of laws of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Switzerland and will be honored by the courts of Switzerland, subject to the restrictions described under the caption “Enforceability of Civil Liabilities” in the Registration Statement, the General Disclosure Package and the Prospectus.
(lii)Proper Form Under Swiss Law. This Agreement is in proper form under the laws of Switzerland for the enforcement thereof against the Company, and to ensure the legality, validity, enforceability or admissibility into evidence in Switzerland of this Agreement.
(liii)No Further Actions. It is not necessary under the laws of Switzerland (i) to enable the Underwriters to enforce their rights under this Agreement, to enable any holder of Securities to enforce their respective rights thereunder, provided that they are not otherwise engaged in business in Switzerland or (ii) solely by reason of the execution, delivery or consummation of this Agreement for any of the Underwriters or any holder of Securities of the Company to be qualified or entitled to carry out business in Switzerland.
(liv)Indemnification and Contribution. The indemnification provisions set forth in Section 8 hereof and contribution provisions set forth in Section 9 hereof do not contravene mandatory Swiss law or public policy.
(lv)Legality. The legality, validity, enforceability or admissibility into evidence of any of the Registration Statement, the General Disclosure Package, the Prospectus, this Agreement or the Securities in any jurisdiction in which the Company is organized or does business is not dependent upon such document being submitted into, filed or recorded with any court or other authority in any such jurisdiction on or before the date hereof or that any tax, imposition or charge be paid in any such jurisdiction on or in respect of any such document.
(lvi)Legal Action. A holder of the Securities and each Underwriter are each entitled to sue as plaintiff in the court of the jurisdiction of incorporation and domicile of the Company for the enforcement of their respective rights under this Agreement and the Securities and such access to such courts will not be subject to any conditions which are not applicable to residents of such jurisdiction or a company incorporated in such jurisdiction except that plaintiffs not residing in Switzerland may be required to guarantee payment of a possible order for payment of costs or damages at the request of the defendant.
(lvii)No Ratings. There are (and prior to the Closing Time, will be) no debt securities, convertible securities or preferred shares issued or guaranteed by the Company or any of its Subsidiaries that are rated by a “nationally recognized statistical rating organization”, as such term is defined in Section 3(a)(62) under the Exchange Act.
(lviii)No Broker’s Fees. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor any of its Subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against the Company or any of its Subsidiaries or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
(lix)Initial Securities Registration. Immediately after the registration of the Initial Capital Increase (as defined in Section 3(a)(i)) pursuant to Section 3, but in no event later than 9:30 a.m. (New York City time) on the date of registration of the Initial Capital Increase (as defined in Section 3(a)(i)) in the Commercial Register of the Canton of Basel-Stadt pursuant to Section 3, the Initial Securities will be registered in the Company’s uncertificated securities book (Wertrechtebuch) according to article 973c of the Swiss Code of Obligations (the “CO”) in the name of the Settlement Agent, and on the Closing Time will be credited to a securities account of the Settlement Agent and onward delivered by the Settlement Agent through the Company’s transfer agent to a securities account of SVB Securities, acting on behalf of the several Underwriters.
(lx)Officer’s Certificates. Any certificate signed by any officer of the Company 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 13 hereof, subject, in each case, to such adjustments among the Underwriters as SVB Securities in its sole discretion shall make to eliminate any sales or purchases of fractional shares.
(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 grant(s) an option to the Underwriters, severally and not jointly, to purchase up to an additional 857,250 Ordinary 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, solely for the purpose of covering over-allotments made in connection with the offering of the Initial 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 upon a written 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 date of payment and delivery for such Option Securities. Such date of delivery (the “Date of Delivery”) shall be determined by the Representatives, but shall not, unless the Date of Delivery is determined to occur concurrently with the Closing Time, be earlier than three (five, if exercised prior to the Closing Time) full business days or 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 SVB Securities in its sole discretion shall make to eliminate any sales or purchases of fractional shares.
(c)Payment. Payment of the purchase price (net of the Firm Capital Increase Amount, which shall be paid to the Settlement Agent (as defined below)) for, and delivery of security entitlements in the form of intermediated securities (Bucheffekten) for, the Initial Securities shall be made at the offices of Latham & Watkins LLP, 1271 Avenue of the Americas, New York, New York 10020, or at such other place as shall be agreed upon by the Representatives and the Company, at 9:30 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 13), 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 (net of the Option Capital Increase Amount, which shall be paid to the Settlment Agent (as defined below)) for, and delivery of security entitlements in the form of intermediated securities (Bucheffekten) for, 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, at 9:30 a.m. (New York City time) on the Date of Delivery as specified in the notice from the Representatives to the Company or such other time and date as shall be agreed upon by the Representatives and the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to a U.S. bank account designated by the Company against delivery to the Representatives for the respective accounts of the Underwriters of security entitlements for 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. Each of the Representatives, 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 (including the Firm Capital Increase Amount to the Settlement Agent) or the Option
Securities (including the Option Capital Increase Amount to the Settlement Agent), if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.
SECTION 3.Capital Increase and Initial Subscription.
(a)The Company confirms that its board of directors (the “Board”) has, on or prior to the date hereof, taken appropriate resolutions to:
(i)increase the Company’s share capital (Erhöhungsbeschluss) by issuing the Initial Securities out of the Company's authorized share capital (the “Initial Capital Increase”);
(ii)authorize the execution, delivery and performance of this Agreement and the transactions contemplated herein;
(iii)authorize certain members of the Board and the executive committee and/or other persons (each, an “Authorized Signatory”), acting jointly by two, to execute this Agreement and any amendments and supplements thereto.
(b)The Company undertakes to cause Zürcher Kantonalbank (the “Settlement Agent”) to
(i)subscribe for all the Initial Securities at the issue price (Ausgabebetrag) of CHF 0.05 per Initial Security corresponding to the nominal value for each Initial Security, and to deliver the corresponding executed subscription form (Zeichnungsschein) to the Company in the form of Exhibit B hereto in original form (wet-ink signed) by no later than 6:00 a.m. (New York City time) one business day prior to the Closing Time or such other time and date as agreed between the Company and the Representatives,
(ii)deposit or cause to be deposited, not later than 6:00 a.m. (New York City time) one business day prior to the Closing Time, or such other date and time as agreed between the Company and the Representatives, same-day funds for value in the amount of CHF 285,750 (the “Firm Capital Increase Amount”) with Credit Suisse (Schweiz) AG (the “Capital Increase Bank”), in a blocked account for such capital increase (Kapitaleinzahlungskonto), made out to the Company’s name, and cause the Capital Increase Bank to issue and deliver to the Company a written confirmation of payment (Kapitaleinzahlungsbestätigung) of the Firm Capital Increase Amount no later than 10:00 a.m. (New York City time) one business day prior to the Closing Time or such other date and time as agreed between the Company and the Representatives; and
(iii)take all steps necessary to ensure that at the Closing Time the Initial Securities will be duly onward delivered by the Settlement Agent through the Company’s transfer agent to an account of SVB Securities, acting on behalf of the several Underwriters, at the Depository Trust Company (the “DTC”).
(c)Upon receipt of the documents referred to in Section 3(b) and before 3:00 a.m. (New York City time) on the Closing Time, or such other time and date as agreed between the Company and the Representatives, the Board (or a committee or a Board member duly authorized by the Board) will:
(i)adopt a report on the Initial Capital Increase (Kapitalerhöhungsbericht) in accordance with Swiss law (article 652e CO);
(ii)if statutory preemptive rights of shareholders need to be set aside, procure that a licensed auditor verifies the report on the Initial Capital Increase in accordance with article 652f CO and confirms in writing that it is complete and accurate (Prüfungsbestätigung), in accordance with Swiss law;
(iii)resolve in the form of a duly notarized deed on the Initial Capital Increase as set forth in article 652g CO and make all amendments to the articles of association of the Company necessary in connection with the Initial Capital Increase (Feststellungs-und Statutenänderungsbeschluss); and
(iv)promptly thereafter, but no later than 4:00 a.m. (New York City time) on the Closing Time, file the documents necessary for the registration of the Initial Capital Increase with the Commercial Register of the Canton of Basel-Stadt;
provided, however, that if this Agreement is terminated pursuant to Section 7(q) or Section 11 prior to the Company filing the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt, the Company undertakes not to resolve on the Initial Capital Increase (if it has not already done so) and not to file the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt.
(d)Immediately after the registration of the Initial Capital Increase in the Commercial Register of the Canton of Basel-Stadt pursuant to Section 3(c), but in no event later than 9:30 a.m. (New York City time) on the Closing Time, the Company will:
(i)deliver by way of email to each of the Representatives, the share registrar of the Company, Homburger AG and Niederer Kraft Frey AG pdf-copies of (A) the certified extract from the Commercial Register of the Canton of Basel-Stadt confirming that the Initial Capital Increase has been approved by the commercial register (cantonal and federal commercial register), has been registered in the Commercial Register (Tagesregister) and will be published in the Swiss Official Gazette of Commerce, (B) the certified updated articles of association of the Company evidencing the Initial Capital Increase, and (C) a certificate of entry in the Company’s uncertificated securities book (Wertrechtebuch) duly signed by the Company’s share registrar and evidencing the Settlement Agent as first holder of the Initial;
(ii)take all steps necessary to ensure that the Initial Securities will be (A) issued to the Settlement Agent, (B) duly recorded as uncertificated securities (Wertrechte) on the books of the Company’s transfer agent and share registrar, (C) delivered on the Closing Time to an account of SVB Securities, acting on behalf of the several Underwriters, at DTC pursuant to Section 3(b)(iii) above, in accordance with the provisions of the Swiss Federal Act on Intermediated Securities, and (D) freely transferable (subject to any applicable restrictions set forth in the articles of association of the Company) on the Closing Time in accordance with the instructions of the Representatives.
SECTION 4.Subscription and Issuance of Option Securities.
(a)If the Representatives exercise the option granted to them under Section 2(b) of this Agreement, the Company undertakes to cause the Settlement Agent to:
(i)subscribe for the number of Option Securities for which the option to purchase has been exercised pursuant to Section 2 (the “Applicable Option Securities”) at the issue price (Ausgabebetrag) of CHF 0.05 per Applicable Option Security corresponding to the nominal value for each Applicable Option Security, and to deliver the corresponding executed subscription form
(Zeichnungsschein) to the Company in the form of Exhibit B hereto in original form (wet ink signed) by no later than 6:00 a.m. (New York City time) one business day prior to the Date of Delivery or such other time and date as agreed between the Company and the Representatives,
(ii)deposit or cause to be deposited, not later than 6:00 a.m. (New York City time) one business day prior to the Date of Delivery, or such other date and time as agreed between the Company and the Representatives, same-day funds for value in an amount corresponding to the aggregate nominal value of the Applicable Option Securities (the “Option Capital Increase Amount”) with the Capital Increase Bank, in a blocked account for such capital increase (Kapitaleinzahlungskonto), made out to the Company’s name, and cause the Capital Increase Bank to issue and deliver to the Company a written confirmation of payment (Kapitaleinzahlungsbestätigung) of the Option Capital Increase Amount no later than 10:00 a.m. (New York City time) one business day prior to the Date of Delivery or such other date and time as agreed between the Company and the Representatives, and
(iii)take all steps necessary to ensure that at the Date of Delivery, the Applicable Option Securities will be duly onward delivered by the Settlement Agent through the Company’s transfer agent to an account of SVB Securities, acting on behalf of the several Underwriters, at DTC.
(b)Upon receipt of the documents referred to in Section 4(a) and before 3:00 a.m. (New York City time) on the Date of Delivery, or such other time and date as agreed between the Company and the Representatives, the Board (or a committee or a Board member duly authorized by the Board) will:
(i)unless passed already prior to such time, pass a capital increase resolution (Erhöhungsbeschluss) regarding the issuance of the Applicable Option Securities subscribed for pursuant to Section 4(a)(i) out of the Company's authorized share capital (the “Option Capital Increase”);
(ii)adopt a report on the Option Capital Increase (Kapitalerhöhungsbericht) in accordance with Swiss law (article 652e CO);
(iii)if statutory preemptive rights of shareholders need to be set aside, procure that a licensed auditor verifies the report on the Option Capital Increase in accordance with article 652f CO and confirms in writing that it is complete and accurate (Prüfungsbestätigung), in accordance with Swiss law;
(iv)resolve in the form of a duly notarized deed on the Option Capital Increase as set forth in article 652g CO and make all amendments to the articles of association of the Company necessary in connection with the Option Capital Increase (Feststellungs- und Statutenänderungsbeschluss); and
(v)promptly thereafter, but no later than 4:00 a.m. (New York City time) on the Date of Delivery, file the documents necessary for the registration of the Option Capital Increase with the Commercial Register of the Canton of Basel-Stadt;
provided, however, that if this Agreement, or after the Closing Time, the obligations of the several Underwriters to purchase the Applicable Option Securities, as applicable, is or are terminated pursuant to Section 7(q) or Section 11 prior to the Company filing the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt, the Company undertakes not to resolve on the Option Capital
Increase (if it has not already done so) and not to file the relevant resolutions with the Commercial Register of the Canton of Basel-Stadt.
(c)Immediately after the registration of the Option Capital Increase in the Commercial Register of the Canton of Basel-Stadt pursuant to Section 4(b), but in no event later than 9:30 a.m. (New York City time) on the Date of Delivery (or such other date set forth in the option exercise notice delivered by the Representatives pursuant to Section 2), the Company will:
(i)deliver by way of email to each of the Representatives, the share registrar of the Company, Homburger AG and Niederer Kraft Frey AG, pdf-copies of (A) the certified extract from the Commercial Register of the Canton of Basel-Stadt confirming that the Option Capital Increase has been approved by the commercial register (cantonal and federal commercial register), has been registered in the Commercial Register (Tagesregister) and will be published in the Swiss Official Gazette of Commerce, (B) the certified updated articles of association of the Company evidencing the Option Capital Increase, and (C) a certificate of entry in the Company’s uncertificated securities book (Wertrechtebuch) duly signed by the Company’s share registrar and evidencing the Settlement Agent as holder of the Applicable Option Securities; and
(ii)take all steps necessary to ensure that the Applicable Option Securities will be (A) issued to the Settlement Agent, (B) duly recorded as uncertificated securities (Wertrechte) on the books of the Company’s transfer agent, (C) delivered on the Date of Delivery to an account of SVB Securities, acting on behalf of the several Underwriters, at DTC pursuant to Section 4(a)(iii) above, in accordance with the provisions of the Swiss Federal Act on Intermediated Securities, and (D) freely transferable (subject to any applicable restrictions set forth in the articles of association of the Company) on the Date of Delivery in accordance with the instructions of the Representatives.
SECTION 5.Covenants of the Company. The Company covenants with each Underwriter as follows:
(a)Initial Capital Increase. To take all steps reasonably required to implement the Initial Capital Increase and Option Capital Increase.
(b)Maintain Uncertificated Securities Book. The Company undertakes to keep an uncertificated securities book (Wertrechtebuch) in accordance with article 973c paragraph 2 CO.
(c)Compliance with Securities Regulations and Commission Requests. The Company, subject to Section 5(d), will comply with the requirements of Rule 430B, and will notify the Representatives immediately, 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 as promptly as practicable.
(d)Continued Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 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 object. The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Company has given the Representatives notice of any filings made pursuant to the 1934 Act or the 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.
(e)Delivery of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters. 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.
(f)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.
(g)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.
(h)Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders 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.
(i)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.”
(j)Listing. The Company will use its reasonable best efforts to maintain the listing of the Ordinary Shares and to effect and maintain the listing of the Securities on the Nasdaq Global Market.
(k)Restriction on Sale of Securities. During a period of 90 days from the date of the Prospectus, the Company will not, and will not publicly disclose an intention to, without the prior written consent of the Representatives, (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 Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares or publicly 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 Ordinary Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Ordinary Shares or other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B) any Ordinary 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 Ordinary Shares issued, options to purchase Ordinary Shares, restricted share units or restricted shares granted or settled pursuant to equity incentive plans of the Company in effect or entering into effect and referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (D) any Ordinary 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) any Ordinary Shares issued by the Company pursuant to that certain Subscription and Share Purchase Agreement by and between the Company and Forbion Growth Opportunities Fund II Coöperatief U.A., represented by Forbion Growth II Management B.V., dated June 14, 2022, (F) any Ordinary Shares or convertible securities issued by the Company pursuant to the Convertible Loan Agreement, by and among the Company, the Subsidiares and Kreos Capital VI (UK) Limited, dated March 26, 2022 or the Term Loan Agreement by and among the Company, the Subsidiaries and Kreos Capital VI (UK) Limited, dated March 26, 2022, or (F) the filing by the Company of a registration statement with the Commission on Form S-8 in respect of any shares of other security instruments issued pursuant to any plans or programs described in (C) or (D) above; provided in the case of (D) above, the transferee to such issuance has agreed in writing to be bound by the same terms
described in the lock-up agreement described in Section 7(l) hereof to the extent and for the duration that such terms remain in effect at the time of the transfer.
(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.
(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) 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.
(p)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 1933 Act and (ii) completion of the 90-day restricted period referred to in Section 5(k).
SECTION 6.Payment of Expenses.
(a)Expenses. The Company will pay or cause to be paid all expenses incident to the performance of its 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 security entitlements in the form of intermediated securities for the Securities to the Underwriters, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 5(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 which shall not exceed $25,000, (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 in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of aircraft and other transportation chartered 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 pursuant to this clause (viii) and clause (v) above shall not exceed $40,000 in the aggregate, (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). For the avoidance of any doubt, it is understood and agreed that except as provided in this Section 6, the Underwriters will pay all their own costs and expenses.
(b)Termination of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 7, Section 11(a) or Section 13 hereof, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company shall reimburse the Underwriters for all of their out-of-pocket accountable expenses actually incurred in connection with the transactions contemplated by this Agreement, including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 7.Conditions of Underwriters’ Obligations. The obligations of the several Underwriters hereunder to purchase and pay for the Initial Securities on the Closing Time and, if the Representatives exercise the option granted to them under Section 2(b), the Option Securities on the Date of Delivery are subject to the accuracy of the representations and warranties of the Company 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 the Company of its covenants and other obligations hereunder, and to the following further conditions:
(a)Effectiveness of Registration Statement. The 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.
(b)Opinion and Negative Assurance Letter of United States Counsel for Company. At the Closing Time, the Representatives shall have received an opinion and negative assurance letter, dated the Closing Time, of Cooley LLP, United States counsel for the Company, in form and substance satisfactory to counsel for the Underwriters previously agreed upon by the Representatives and such counsel, together with signed or reproduced copies of such letter for each of the other Underwriters.
(c)Opinion of Swiss Counsel for Company. At the Closing Time, the Representatives shall have received an opinion, dated the Closing Time, of Homburger AG, Swiss counsel for the Company, in form and substance satisfactory to counsel for the Underwriters previously agreed upon by the Representatives and such counsel, together with signed or reproduced copies of such letter for each of the other Underwriters.
(d)Opinion of Intellectual Property Counsel for Company. At the Closing Time, the Representatives shall have received an opinion, dated the Closing Time, of Cooley LLP, counsel for the Company with respect to intellectual property matters, in the form and substance satisfactory to counsel for the Underwriters previously agreed upon by the Representatives and such counsel, together with signed or reproduced copies of such letter for each of the other Underwriters.
(e)Opinion and Negative Assurance Letter of United States Counsel for Underwriters. At the Closing Time, the Representatives shall have received an opinion and negative assurance letter, dated the Closing Time, of Latham & Watkins LLP, United States counsel for the Underwriters in the form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters.
(f)Opinion of Swiss Counsel for Underwriters. At the Closing Time, the Representatives shall have received an opinion, dated the Closing Time, of Niederer Kraft Frey AG, Swiss counsel for the Underwriters in the form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters.
(g)Officers’ Certificate. 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 of the Company and of the chief financial 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)Accountant’s Comfort Letter. At the time of the execution of this Agreement, the Representatives shall have received from Ernst & Young AG 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.
(i)Bring-down Comfort Letter. At the Closing Time, the Representatives shall have received from Ernst & Young AG a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (h) 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.
(j)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.
(k)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.
(l)Lock-up Agreements. At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Exhibit A hereto signed by the persons listed on Schedule C hereto.
(m)Chief Financial Officer Certificate. At the date of this Agreement and at the Closing Date, the Underwriters shall have received a certificate of the chief financial officer of the Company certifying as to the accuracy of certain financial information included in the Registration Statement, the General Disclosure Package and the Prospectus, in form and substance satisfactory to the Underwriters.
(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 the Date of Delivery and, at the Date of Delivery, the Representatives shall have received:
(i) Officers’ Certificate. A certificate, dated the Date of Delivery, of the Chief Executive Officer of the Company and of the chief financial officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 7(g) hereof remains true and correct as of the Date of Delivery.
(ii) Opinion and Negative Assurance Letter of United States Counsel for Company. If requested by the Representatives, the favorable opinion and negative assurance letter of Cooley LLP, United States counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated the Date of Delivery, relating to the Option Securities to be purchased on the Date of Delivery and otherwise to the same effect as the opinion required by Section 7(b) hereof.
(iii) Opinion of Swiss Counsel for Company. If requested by the Representatives, an opinion of Homburger AG, Swiss counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated the Date of Delivery, relating to the Option Securities to be purchased on the Date of Delivery and otherwise to the same effect as the opinion required by Section 7(c) hereof.
(iv) Opinion of Intellectual Property Counsel for Company. If requested by the Representatives, the favorable opinion of Cooley LLP, counsel for the Company with respect to intellectual property matters, in form and substance satisfactory to counsel for the Underwriters,
dated the Date of Delivery, relating to the Option Securities to be purchased on the Date of Delivery and otherwise to the same effect as the opinion required by Section 7(d) hereof.
(v) Opinion and Negative Assurance Letter of United States Counsel for Underwriters. If requested by the Representatives, the favorable opinion and negative assurance letter of Latham & Watkins LLP, United States counsel for the Underwriters, dated the Date of Delivery, relating to the Option Securities to be purchased on the Date of Delivery and otherwise to the same effect as the opinion required by Section 7(e) hereof.
(vi) Opinion of Swiss Counsel for Underwriters. If requested by the Representatives, the favorable opinion of Niederer Kraft Frey AG, Swiss counsel for the Underwriters, dated the Date of Delivery, relating to the Option Securities to be purchased on the Date of Delivery and otherwise to the same effect as the opinion required by Section 7(f) hereof.
(vii) Bring-down Comfort Letter. If requested by the Representatives, a letter from Ernst & Young AG, in form and substance satisfactory to the Representatives and dated the Date of Delivery, substantially in the same form and substance as the letter furnished to the Representatives pursuant to Section 7(h) 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 the Date of Delivery.
(viii) Option Capital Increase Documentation. Each of the Representatives, the share registrar of the Company, Homburger AG and Niederer Kraft Frey AG shall have received pdf-copies of (A) extract from the Commercial Register of the Canton of Basel-Stadt confirming that the Option Capital Increase has been approved by the commercial register (cantonal and federal commercial register), has been registered in the Commercial Register (Tagesregister) and will be published in the Swiss Official Gazette of Commerce, (B) the certified updated articles of association of the Company evidencing the Option Capital Increase, and (C) a certificate of entry in the Company’s uncertificated securities book (Wertrechtebuch) duly signed by the Company’s share registrar and evidencing the Settlement Agent as first holder of the Option Securities.
(ix) Chief Financial Officer Certificate. If requested by the Representatives, the Underwriters shall have received a certificate of the chief financial officer of the Company certifying as to the accuracy of certain financial information included in the Registration Statement, the General Disclosure Package and the Prospectus, in form and substance satisfactory to the Underwriters dated the Date of Delivery.
(o)Additional Documents. At the Closing Time and at the Date of Delivery (if any) counsel for the Underwriters shall have been furnished with such documents and opinions as they may 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 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 or waived by the Representatives when and as required to be fulfilled, this Agreement or, in the case of any condition to the purchase of Option Securities on the Date of Delivery which is after the Closing Time, the obligations of the several Underwriters to purchase the Applicable Option Securities, may be terminated by the Representatives by notice to the Company at any time at or prior to the Closing Time or the 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 6 and except that Sections 1, 8, 9, 10, 17, 18, 19 and 20 shall survive any such termination and remain in full force and effect.
(q)Initial Capital Increase Documentation. Each of the Representatives, the share registrar of the Company, Homburger AG and Niederer Kraft Frey AG shall have received pdf-copies of (A) the extract from the Commercial Register of the Canton of Basel-Stadt confirming that the Initial Capital Increase has been approved by the commercial register (cantonal and federal commercial register), has been registered in the Commercial Register (Tagesregister) and will be published in the Swiss Official Gazette of Commerce, (B) the certified updated articles of association of the Company evidencing the Initial Capital Increase, and (C) a certificate of entry in the Company’s uncertificated securities book (Wertrechtebuch) duly signed by the Company’s share registrar and evidencing the Settlement Agent as first holder of the Initial Securities.
SECTION 8.Indemnification.
(a)Indemnification of Underwriters. The Company 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 post-effective amendment thereto), including information deemed to be a part thereof pursuant to Rule 430B, 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 Testing-the-Waters Communication, the General Disclosure Package or the Prospectus (or any post-effective 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 Testing-the-Waters Communication, the General Disclosure Package, the Prospectus (or any amendment or supplement thereto) 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 8(d) below) any such settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the reasonably incurred 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;
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 post-effective amendment thereto), including information deemed to be a part thereof pursuant to Rule 430B, 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 post-effective amendment thereto), including information deemed to be a part thereof pursuant to Rule 430B, 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 8(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 8(b) above, counsel to the indemnified parties shall be selected by the Company. 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 8 or Section 9 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 reasonably incurred fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 8(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.
SECTION 9.Contribution. If the indemnification provided for in Section 8 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 which 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 discounts and commissions 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 9 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 9. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 9 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 9, no Underwriter shall be required to contribute any amount in excess of the underwriting discounts and commissions received by such Underwriter in connection with the Securities 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 9, 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 9 are several in proportion to the number of Initial Securities set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 10.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, or the Company, its officers or directors or any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 11.Termination of Agreement.
(a)Termination. The Representatives acting on behalf of the several Underwriters may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time or the Date of Delivery, as the case may be (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 so material and adverse 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 or the NYSE MKT or the New York Stock Exchange or in the Nasdaq Global Select 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 6 hereof, and provided further that Sections 1, 8, 9, 10, 17, 18, 19 and 20 shall survive such termination and remain in full force and effect.
SECTION 12.[Reserved]
SECTION 13. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or the 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
(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 the 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 the Date of Delivery shall terminate without liability on the part of any non-defaulting Underwriter or the Company.
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 the 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 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 13.
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 SVB Securities at 1301 6th Avenue, 12th Floor, New York, NY 10019, attention of Stuart Nayman (facsimile: (646) 499-7051) or Piper Sandler at 1251 Avenue of the Americas, 6th Floor, New York, NY 10020, Attention: General Counsel. Notices to the Company shall be directed to the Company at Aeschenvorstadt 36, 4051 Basel, Switzerland, attention of Claudia D’Augusta, Chief Financial Officer (e-mail: claudia.daugusta@vectivbio.com).
SECTION 14.No Advisory or Fiduciary Relationship. The Company 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 (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 15.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.
(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 16, 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 16. 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 8 and 9 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 17.Trial by Jury. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its 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 18.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.
SECTION 19.Consent to Jurisdiction; Waiver of Immunity; Judgment Currency; Foreign Taxes.
(a)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.
(b)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 VectivBio Inc., at 60 Broad St. Suite 3502, New York, New York 10004, 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.
(c)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.
(d)The Company agrees to indemnify each Underwriter, its directors, officers, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any loss incurred by such Underwriter as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “judgment currency”) other than U.S. dollars and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the judgment currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such indemnified person is able to purchase U.S. dollars with the amount of the judgment currency actually received by the indemnified person. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
(e)Unless required by applicable law, all payments by the Company to the Underwriters hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present and future stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereinafter imposed, levied, collected, withheld or assessed by any jurisdiction in which the Company is organized, resident, doing business or has an office or from which payment is made, excluding any such tax imposed by reason of any Underwriter having some connection with the taxing jurisdiction other than its participation as an Underwriter hereunder (all such non-excluded taxes, including, VAT, “Foreign Taxes”). For the avoidance of doubt, all amounts payable by the Company under this Agreement shall be exclusive of VAT, and if any VAT is or becomes chargeable in respect of the supply to which such payment relates and the relevant recipient is required to account to the relevant tax authority for such VAT, the Company shall, upon receipt of a valid VAT invoice in respect of the supply to which that payment relates, pay at the same time and in the same manner as the payment to which such VAT relates, an amount equal to such VAT. If the Company is required to deduct or withhold Foreign Taxes or is prevented by operation of law or otherwise from paying, causing to be paid or remitting that portion of amounts payable hereunder represented by Foreign Taxes withheld or deducted, then amounts payable under this Agreement shall, to the extent permitted by law, be increased to such amount as is necessary to yield and remit to such Underwriters an amount which, after deduction of all Foreign Taxes (including all Foreign Taxes payable on such increased payments) equals the amount that would have been payable if no Foreign Taxes applied. By way of exception to the foregoing, a payment by the Company to an Underwriter shall not be increased by reason of a deduction or withholding on account of a tax imposed by Switzerland when the relevant Underwriter resides in a jurisdiction that has not entered into a double taxation agreement
with Switzerland. In the event that an Underwriter has received and utilized a tax credit in respect of any amount withheld or deducted pursuant to this paragraph, such Underwriter shall pay to the Company as promptly as commercially practicable an amount which will leave the Underwriter (after that payment) in the same after-tax position as it would have been if no such deduction or withholding had been required to be made, it being understood that the foregoing does not require any Underwriter to investigate or claim any credit or refund that may be available to it or create any obligation to disclose any information relating to tax matters or any computation or return in respect thereof (other than the fact of the receipt and utilization of any such tax credit, which may be disclosed upon payment of the amount owed to the Company in respect thereof as provided above). Where this Agreement requires any person to reimburse or indemnify another person for any costs, expenses, fees or other amounts to which a reimbursement or indemnity relates, that first person shall reimburse or indemnify (as the case may be) the second person for the full amount of such cost or expense, including such part thereof as represents VAT (including any VAT incurred thereon which, for the avoidance of doubt, shall include any VAT on services provided from legal counsel where any Underwriter is required to self-assess and account for VAT in its role as the recipient of such services), save to the extent that the second person reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
SECTION 20.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 21.Counterparts and Electronic Signatures. Counterparts and Electronic Signatures. 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. Electronic signatures complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law will be deemed original signatures for purposes of this Agreement. Transmission by telecopy, electronic mail or other transmission method of an executed counterpart of this Agreement will constitute due and sufficient delivery of such counterpart.
SECTION 22.Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
[Signature pages follow]
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.
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| Very truly yours, |
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| VECTIVBIO HOLDING AG |
| |
| |
| By | /s/ Luca Santarelli |
| Name: Luca Santarelli
Title: Chief Executive Officer |
| |
| By | /s/ Claudia D’Augusta |
| Name: Claudia D’Augusta
Title: Chief Financial Officer |
| | | | | | | | |
| CONFIRMED AND ACCEPTED, |
| | as of the date first above written: |
| | |
SVB SECURITIES LLC PIPER SANDLER & CO. |
| | |
| | |
| By: SVB SECURITIES LLC |
| | |
| | |
| By | /s/ Gabriel P. Cavazos |
| Authorized Signatory |
| | |
| | |
| By: PIPER SANDLER & CO. |
| | |
| | |
| By | /s/ Chad E. Huber |
| Authorized Signatory |
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
SCHEDULE A
The public offering price per share for the Securities shall be $5.25.
The purchase price per share for the Securities to be paid by the several Underwriters shall be $4.935, being an amount equal to the public offering price set forth above less $0.315 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities.
| | | | | | | | |
| Name of Underwriter | | Number of Initial Securities |
| | |
| SVB Securities LLC | | 2,457,450 |
| Piper Sandler & Co. | | 2,171,700 |
| LifeSci Capital LLC | | 1,085,850 |
| Total | | 5,715,000 |
SCHEDULE B-1
Pricing Terms
1. The Company is selling 5,715,000 Ordinary Shares.
2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 857,250 Ordinary Shares.
3. The public offering price per share for the Securities shall be $5.25.
SCHEDULE B-2
Free Writing Prospectuses
[None.]
SCHEDULE C
List of Persons and Entities Subject to Lock-up
Versant Venture Capital V, LP
Versant Venture Capital V (Canada), LP
Versant Affiliates Fund V, LP
Versant Ophthalmic Affiliates Fund I, LP
Versant Vantage I, L.P.
OrbiMed Private Investments V, LP
OrbiMed Private Investments VII, LP
Dr. Luca Santarelli
Dr. Claudia D’Augusta
Dr. Christian Meyer
Dr. Omar Khwaja
Kevin Harris
Scott Applebaum
Dr. Alain Bernard
Dr. Thomas Woiwode
Dr. Murray Stewart
Sandip Kapadia
Chahra Louafi
Hans Schikan
Paul R. Carter
Dr. Stephen Squinto
SCHEDULE D
[None.]
SCHEDULE E
Subsidiaries
VectivBio AG
VectivBio Comet AG
GlyPharma Therapeutic Inc.
Comet Therapeutics, Inc.
VectivBio Inc.
Exhibit A
[Form of lock-up from directors, officers or other shareholders pursuant to Section 7(l)]
[ l ], 2022
SVB Securities LLC
Piper Sandler & Co.
as Representatives of the several
Underwriters to be named in the
within-mentioned Underwriting Agreement
c/o SVB Securities LLC
1301 6th Avenue
New York, New York 10019
c/o Piper Sandler & Co.
1251 Avenue of the Americas, 6th Floor
New York, New York 10020
Re: Proposed Public Offering by VectivBio Holding AG
Dear Sirs:
The undersigned, understands that SVB Securities LLC (“SVB Securities”) and Piper Sandler & Co. (“Piper Sandler”), as Representatives of the several Underwriters, propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with VectivBio Holding AG, a Swiss stock corporation (Aktiengesellschaft) (the “Company”), providing for the public offering (the “Public Offering”) of the Company’s ordinary shares, nominal value CHF 0.05 per share (the “Ordinary Shares”). In recognition of the benefit that such an offering will confer upon the undersigned, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of SVB Securities and Piper Sandler, (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 Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended (the “Securities Act”), 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 Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Ordinary Shares or other securities, in cash or otherwise. If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed Lock-Up Securities the undersigned may purchase in the Public Offering.
Notwithstanding the foregoing, and subject to the conditions below, the foregoing restrictions shall not apply to, and the undersigned may transfer the Lock-Up Securities without the prior written consent of SVB Securities and Piper Sandler, provided that (1) with respect to clauses (i), (ii), (iii) and (v) below, SVB Securities and Piper Sandler receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, and any such transfer shall not involve a disposition for value and (2) (A) in the case of clauses (i), (ii), (iii) and (v) and below, such transfers are not required to be reported, and no such reports are otherwise voluntarily made, during the Lock-Up Period with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise, and (B) in the case of clauses (iv), (vi) and (vii), any such required Form 4 shall state the reason for such transfer in the footnotes thereto, and (3) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers:
(i)as a bona fide gift or gifts, or for bona fide estate planning purposes; or
(ii)to any member of the undersigned’s immediate family or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this clause (ii) of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin) or to any company wholly-owned by the undersigned or wholly-owned by one or more companies which are wholly-owned by the undersigned; or
(iii)by will or intestate succession upon the death of the undersigned; or
(iv)by operation of law or by order of a court of competent jurisdiction, such as pursuant to a court or regulatory agency order, a settlement agreement, a domestic order or in connection with a divorce settlement; or
(v)if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, to (x) another corporation, partnership, limited liability company, trust or other business entity that is a direct or indirect affiliate (as defined in Rule 405 promulgated under the Securities Act) of the undersigned, (y) any investment fund or other entity controlling, controlled by, managing, managed by or under common control with the undersigned or affiliates of the undersigned, or (z) as distributions to any limited partners, general partners, members, managers, managing members, shareholders or other equity holders of the undersigned or of the entities described in the preceding clauses (x) and (y); or
(vi)to the Company (x) in connection with the exercise, vesting or settlement of equity awards on a “net” or “cashless” exercise basis to the extent permitted by the instruments representing such equity awards (including any transfer to the Company necessary to generate such amount of cash needed for the payment of taxes and social security contributions due or payment of the exercise price as a result of such exercise, vesting or settlement) so long as such “net” or “cashless” exercise is effected solely by the surrender of outstanding equity awards (or the Ordinary Shares issuable upon the exercise thereof) to the Company and the Company’s cancellation of all or a portion thereof to pay the exercise price and/or taxes and social security contributions and remittance obligations, in each case pursuant to an equity incentive plan described in the final prospectus relating to the Public Offering, or (y) pursuant to any contractual arrangement (A) disclosed in the final prospectus relating to the Public Offering that provides the Company with an option to repurchase such Ordinary Shares in connection with the termination of the undersigned's employment or other service relationship with the Company, (B) pursuant to a Special
Mandatory Conversion as such term is defined in the Investment Agreement related to the series A2 financing or (C) that provides the Company with an option to repurchase Ordinary Shares in connection with the termination of the undersigned's employment or other service relationship with the Company or in connection with the second tranche of the Company’s series A2 financing at a price that is below the fair market value of such Ordinary Shares, provided that, any Ordinary Shares received and not surrendered by the undersigned upon such exercise, vesting or settlement shall remain subject to the restrictions set forth herein; or
(vii)to exercise equity awards pursuant to an equity incentive plan described in the final prospectus relating to the Public Offering and outstanding as of the date of the Underwriting Agreement, provided that any Ordinary Shares received by the undersigned upon such exercise shall remain subject to the restrictions set forth herein; or
(viii)the disposition of Ordinary Shares to the Company, or the withholding of Ordinary Shares by the Company, in a transaction exempt from Section 16(b) of the Exchange Act solely in connection with the payment of taxes and social security contributions due with respect to the vesting of restricted shares granted under any equity incentive plan of the Company or pursuant to a contractual arrangement described in the final prospectus relating to the Public Offering, insofar as such restricted shares are outstanding as of the date of the Underwriting Agreement; or
(ix)pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction in each case made to all holders of Ordinary Shares, involving a Change of Control (as defined below), or the provision of an irrevocable undertaking to accept such tender offer, merger, consolidation or other similar transaction, provided that (x) in the event that the tender offer, merger, consolidation or other such transaction is not completed, the Lock-Up Securities shall remain subject to the terms of this lock-up agreement and (y) no such transfer of Lock-Up Securities shall be permitted pursuant to this clause if such bona fide third-party tender offer, merger, consolidated or other similar transaction is not recommended by the board of directors of the Company, unless either (A) such transfer is required pursuant to mandatory take-over or squeeze-out provisions under Swiss law or (B) the failure to so transfer such Lock-Up Securities would result in such Lock-Up Securities being extinguished without value being received by the undersigned. “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons (other than an underwriter pursuant to the Public Offering), of the Company’s voting securities if, after such transfer, such person or group of affiliated persons would hold more than 50% of the outstanding voting securities of the Company (or the surviving entity).
Furthermore, the undersigned may sell or transfer Ordinary Shares purchased by the undersigned in the Public Offering (other than any Company-directed Ordinary Shares acquired by an officer or director of the Company) or on the open market following the Public Offering if and only if (i) such sales or transfers are not required to be reported, and no such reports are otherwise voluntarily made, in any public report or filing with the Commission, or otherwise, and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales.
Furthermore, notwithstanding the foregoing, the restrictions in this lock-up agreement shall not apply to the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of the undersigned’s Ordinary Shares, provided that (i) no direct or indirect offers, pledges, sales, contracts to sell, sales of any option or contract to purchase, purchases of any option or contract to sell, grants of any option,
right or warrant to purchase, loans, or other transfers or disposals of any of the undersigned’s Ordinary Shares may be effected pursuant to such plan during the Lock-Up Period and (ii) no public disclosure of the entry into such a trading plan shall be required or shall be voluntarily made by any person until after the expiration of the Lock-Up Period.
The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Lock-Up Securities except in compliance with the foregoing restrictions.
The undersigned acknowledges and agrees that the underwriters have not provided any recommendation or investment advice nor have the underwriters solicited any action from the undersigned with respect to the offering of the securities and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate.
The undersigned understands that, if (1) either the Representatives, on the one hand, or the Company, on the other hand, informs the other, prior to the execution of the Underwriting Agreement, that they have determined not to proceed with the Public Offering, (2) the Underwriting Agreement is not duly executed by June 30, 2022, or (3) the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Ordinary Shares to be sold thereunder, the undersigned shall be released from all obligations under this lock-up agreement.
The undersigned hereby consents to receipt of this lock-up agreement in electronic form and understands and agrees that this lock-up agreement may be signed electronically. In the event that any signature is delivered by facsimile transmission, electronic mail, or otherwise by electronic transmission evidencing an intent to sign this lock-up agreement, such facsimile transmission, electronic mail or other electronic transmission shall create a valid and binding obligation of the undersigned with the same force and effect as if such signature were an original.
This lock-up agreement and any claim, controversy or dispute arising under or related to this lock-up agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.
[Signature Page Follows]
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| Very truly yours, |
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| |
| Signature: | |
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| Print Name: | |
Exhibit B
SUBSCRIPTION FORM
Zeichnungsschein
Subscription Form
Zürcher Kantonalbank, Bahnhofstrasse 9, 8001 Zurich (Zeichner / Subscriber), zeichnet in voller Kenntnis der Statuten der VectivBio Holding AG, Basel, CHE-289.024.902 (die Gesellschaft), und unter Bezugnahme auf (i) die Ermächtigung des Verwaltungsrates der Gesellschaft gemäss Generalversammlungsbeschluss vom 1. April 2021 im Rahmen des genehmigten Aktienkapitals das Aktienkapital der Gesellschaft gemäss Art. 3a der Statuten der Gesellschaft um maximal CHF 641'049.60 zu erhöhen, (ii) den Kapitalerhöhungsbeschluss des Verwaltungsrates der Gesellschaft vom [ l ] sowie (iii) den Prospekt vom [ l ]:
subscribes in full knowledge of the articles of association of VectivBio Holding AG, Basel, CHE-289.024.902 (the Company), and with reference to (i) the authorization of the board of directors of the Company pursuant to the resolution of the general meeting of shareholders held on April 1, 2021 to increase the share capital of the Company by an amount of up to CHF 641,049.60 out of the authorized share capital pursuant to art. 3a of the articles of association of the Company and (ii) the resolution of the board of directors of the Company to increase the share capital dated [ l ] as well as (iii) the prospectus dated [ l ]:
_______________________ ordentliche Namenaktien der Gesellschaft mit einem Nennwert von je CHF 0.05 zum Ausgabebetrag von CHF 0.05 pro Aktie (Gesamtausgabebetrag von CHF _______________________).
_______________________ registered ordinary shares of the Company with a nominal value of CHF 0.05 each at an issue price of CHF 0.05 per share (aggregate issue price of CHF _______________________).
Der Zeichner verpflichtet sich hiermit bedingungslos, eine dem Gesamtausgabebetrag entsprechende Einlage zu leisten. Die Einlage erfolgt durch:
The Subscriber herewith undertakes unconditionally to make a contribution corresponding to the aggregate issue price. The contribution is paid by:
Geldeinlage in der Höhe von CHF _______________________ durch Einzahlung auf das von der Gesellschaft bezeichnete Konto.
deposit of funds by cash payment of CHF _______________________ into the account designated by the Company.
Dieser Zeichnungsschein und die darin übernommenen Verpflichtungen sind gültig bis zum [ l ].
This subscription form and the obligations assumed herein are valid until [ l ].
Dieser Zeichnungsschein untersteht materiellem Schweizer Recht ohne Berücksichtigung der kollisionsrechtlichen Bestimmungen des internationalen Privatrechts und unter Ausschluss des Übereinkommens der Vereinten Nationen über Verträge über den internationalen Warenkauf. Ausschliesslicher Gerichtsstand für sämtliche Streitigkeiten aus oder im Zusammenhang mit diesem Zeichnungsschein ist die Stadt Basel, Schweiz.
This subscription form shall be governed by the substantive laws of Switzerland, without regard to the conflicts of law provisions of international private law and excluding the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for any dispute, claim or controversy arising under, out of or in connection with or related to this subscription form shall be the city of Basel, Switzerland.
Wenn dieser Zeichnungsschein bei Durchführung der Kapitalerhöhung nur als handschriftlich oder elektronisch unterschriebene pdf- oder Faxkopie (aber nicht als Original) vorliegt, bevollmächtigt der Zeichner hiermit jedes Mitglied des Verwaltungsrates der Gesellschaft,
diesen Zeichnungsschein im Namen des Zeichners auf der Grundlage dieser handschriftlich oder elektronisch unterschriebenen pdf- oder Faxkopie zu unterzeichnen.
If this subscription form is available at completion of the capital increase only as a wet ink or electronically signed pdf or fax copy (but not as an original), the Subscriber hereby authorizes any member of the board of directors of the Company to sign this subscription form on behalf of the Subscriber on the basis of such wet ink or electronically signed pdf or fax copy.
Im Fall von Differenzen zwischen der deutschen und der englischen Fassung dieses Zeichnungsscheins geht die deutsche Fassung vor.
In case of discrepancies between the German and the English version of this subscription form, the German version shall prevail.
[Unterschriftenseite folgt]
[Signature page follows]
[ l ]
Exhibit 10.1
Execution Version
SUBSCRIPTION AND SHARE PURCHASE AGREEMENT
Subscription And Share Purchase Agreement (the “Agreement”), dated as of June 14, 2022, by and between VectivBio Holding AG, a stock corporation (Aktiengesellschaft) organized under the laws of Switzerland (the “Company”), and Forbion Growth Opportunities Fund II Coöperatief U.A., represented by Forbion Growth II Management B.V. (the “Buyer”).
Whereas:
A. The Company and the Buyer are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”).
B. The Company is registered with the Commercial Register of the Canton of Basel-Stadt under the company identification number CHE-289.024.902. The Company's current share capital registered with the Commercial Register of the Canton of Basel-Stadt amounts to CHF 1,984,436.05, divided into 39,688,721 ordinary shares with a nominal value of CHF 0.05 each (the “Ordinary Shares”). The Ordinary Shares are listed on the Nasdaq Global Market (the “Principal Market”).
C. Upon the terms and conditions of this Agreement, the Buyer wishes to purchase, and the Company wishes to sell, 3,478,260 ordinary shares with a nominal value of CHF 0.05 each (the “Shares”) for an aggregate purchase price of $19,999,995.00. The Company wishes to (i) sell 3,053,008 Ordinary Shares held in treasury (the “Treasury Shares”) and (ii) issue and sell 425,252 newly issued Ordinary Shares out of its authorized share capital (the “New Shares”).
Now, Therefore, in consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Buyer hereby agree as follows:
1. SUBSCRIPTION, PURCHASE AND SALE OF SHARES
(a) Subscription for New Shares.
Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Buyer hereby agrees to subscribe for such number of New Shares as set forth in Schedule 1 at an issue price (Ausgabebetrag) of USD 5.75 per New Share, corresponding to an aggregate issue price as set forth in Schedule 1 (the “Issue Price”).
(i) Subscription. The Buyer hereby agrees to (i) deliver the corresponding executed subscription form (Zeichnungsschein) to the Company in the form of Schedule 1(a) hereto in original form (wet-ink signed) by no later than 6:00 a.m. (New York City time) one Business Day (as defined below) prior to the Closing Date (as defined below) or such other time and date as agreed between the Company and the Buyer, and (ii) deposit, not later than 6:00 a.m. (New York City time) one Business Day prior to the Closing Date (as defined below), or such other date and time as agreed between the Company and the Buyer, same-day funds for value in the amount of the Issue Price with Credit Suisse (Schweiz) AG (the “Bank”), in a blocked account for the capital increase (Kapitaleinzahlungskonto), made out to the Company’s name.
(ii) Capital Increase. The Company undertakes, upon receipt of the documents referred to in Section 1(a) and before 3:00 a.m. (New York City time) on the Closing Date (as defined below), or such other time and date as agreed between the Company and the Buyer, to resolve on a capital increase for the issuance of the New Shares out of the Company's authorized capital (the “Capital Increase”) and to register the Capital Increase with the Commercial Register of the Canton of Basel-Stadt.
(iii) Closing. Immediately after the registration of the Capital Increase in the Commercial Register of the Canton of Basel-Stadt, but in no event later than 9:30 a.m. (New York City time) on the Closing Date, the Company will:
(1) deliver to the Buyer pdf-copies of (A) the certified extract from the Commercial Register of the Canton of Basel-Stadt confirming that the Capital Increase has been registered in the Commercial Register (Tagesregister), and (B) a certificate of entry in the Company’s uncertificated securities book (Wertrechtebuch) duly signed by the Company’s share registrar and evidencing the Buyer as first holder of the New Shares, and
(2) take all steps necessary to ensure that the New Shares will be (A) issued to the Buyer and (B) duly recorded in the Company's share register in the name of the Buyer on the applicable balance account in book-entry form at the Transfer Agent on the Closing Date.
(b) Purchase of Shares.
Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the (i) Buyer undertakes to purchase from the Company on the Closing Date (as defined below), such number of Treasury Shares as set forth in Schedule 1 at a purchase price of USD 5.75 per Treasury Share, corresponding to an aggregate purchase price as set forth in Schedule 1 (the “Purchase Price”) and (ii) Buyer shall pay the Purchase Price relating to such Treasury Shares on the Closing Date by wire transfer of immediately available funds in accordance with the Company’s written wire instructions, and (iii) Company undertakes to transfer such number of Treasury Shares as set forth in Schedule 1 to the Buyer on the Closing Date (as defined below), to be duly recorded in the Company's share register in the name of the Buyer on the applicable balance account in book-entry form at the Transfer Agent.
(i) Closing. The date and time of the Closing (the “Closing Date”) shall be on such date and time as is mutually agreed to by the Company and the Buyer, but in no event shall the Closing occur later than June 24, 2022, after notification of satisfaction (or waiver) of the conditions to the Closing set forth in Sections 6 and 7 below at the offices of Cooley LLP, 55 Hudson Yards, New York, NY 10001-2157 or such other location (including remotely by electronic transmission) as the parties shall mutually agree.
2. BUYER’S REPRESENTATIONS AND WARRANTIES
The Buyer represents and warrants to the Company as of the date of this Agreement and as of the Closing Date that (provided that nothing in this Section 2 shall modify, amend or affect the Buyer’s right to rely on the truth, accuracy and completeness of the Company’s representations and warranties contained in this Agreement):
(a) Organization and Good Standing. If the Buyer is an entity, the Buyer is a corporation, partnership or limited liability company duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization.
(b) Authorization and Power. The Buyer has the requisite power and authority to enter into and perform this Agreement, to subscribe for the New Shares and to purchase the Shares being sold to it hereunder. If Buyer is an entity, the execution, delivery and performance of this Agreement and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary corporate, limited liability company or partnership action, and no further consent or authorization of the Buyer or its board of directors, stockholders, partners or similar body, as the case may be, is required. This Agreement has been duly authorized, executed and delivered by the Buyer and constitute, or shall constitute when executed and delivered, valid and binding obligations of the Buyer enforceable against the Buyer in accordance with the terms thereof, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(c) No Public Sale or Distribution. The Buyer is acquiring the Shares for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the Securities Act; provided, however, that by making the representations herein, the Buyer does not agree to hold any of the Shares for any minimum or other specific term and reserves the right to dispose of all or any part of the Shares at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act and pursuant to the applicable terms of this Agreement. The Buyer is acquiring the Shares hereunder in the ordinary course of its business. The Buyer does not presently have any agreement or understanding, directly or indirectly, with any Person (as defined below) to distribute any of the Shares. As used in this Agreement, “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.
(d) Buyer Status. At the time the Buyer was offered the Shares, it was, and as of the date hereof it is an “accredited investor” as defined in Rule 501 under the Securities Act. The Buyer is not required to be registered as a broker-dealer under Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the Buyer is not a broker-dealer, nor an affiliate of a broker-dealer.
(e) Reliance on Exemptions. The Buyer understands that the Shares are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and the Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Buyer set forth in this Agreement in order to determine the availability of such exemptions and the eligibility of the Buyer to acquire the Shares. The Buyer understands that the Shares therefore cannot be resold unless they are registered under the Securities Act or disposed of pursuant to a valid exemption from the registration requirements of the Securities Act. In this connection, the Buyer represents that it is familiar with Rule 144 or Rule 144A promulgated under the Securities Act (or a successor rule thereto) (collectively, “Rule 144”), and understands the resale limitations imposed thereby and by the Securities Act.
(f) Purchase Entirely for Own Account. This Agreement is made with the Buyer in reliance upon the Buyer’s representation to the Company, which by the Buyer’s execution of this Agreement the Buyer hereby confirms, that the Shares to be received by the Buyer will be acquired in the ordinary course of its business and for investment for the Buyer’s own account, not as a nominee or agent, and not with a view to the distribution of any part thereof, and that the Buyer has no present intention of selling, granting any participation in, or otherwise distributing the same. By executing this Agreement, the Buyer further represents that the Buyer does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person, with respect to any of the Shares. By executing this Agreement, the Buyer further represents that the Buyer will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the Securities Act and applicable state securities laws and the respective rules and regulations promulgated thereunder.
(g) Information. The Buyer acknowledges that it and its advisors, if any, had adequate time to review the information and disclosures publicly available or made available to the Buyer prior to making its decision to purchase the Shares. The Buyer further acknowledges that any such information consisting of financial estimates, projected financial information and other forward-looking information provided by the Company or its affiliates or representatives is based on a number of assumptions and estimates that are inherently subject to significant business, economic and competitive risks, uncertainties and contingencies which are beyond the control of the Company, and that it is understood that such projections, as to future events, are not to be viewed as facts, that actual results during the period or periods covered by any such projections may differ significantly from the projected results and that such difference may be material and that such projections are not a guarantee of financial performance. The Buyer has sufficient knowledge and experience in investing in companies similar to the Company so as to be able to evaluate the risks and merits of its investment in the Company. The Buyer and its advisors, if any, have been afforded a full opportunity to ask questions of and receive answers from the Company or any person or persons acting on behalf of the Company regarding the terms and conditions
of the offering of the Shares and the merits and risks of investing in the Shares. Neither such inquiries nor any other due diligence investigations conducted by the Buyer or its advisors, if any, or its representatives shall modify, amend or affect the Buyer’s right to rely on the Company’s representations and warranties contained herein and the truth, accuracy, and completeness thereof. The Buyer understands that its investment in the Shares involves a high degree of risk and warrants that it is able to bear the economic risk and complete loss of such investment. The Buyer acknowledges that there may be certain consequences under U.S. federal, state and local income tax laws, foreign tax laws and other tax laws resulting from an investment in the Shares and has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Shares. If other than an individual, the Buyer also represents it has not been organized for the purpose of acquiring the Shares.
(h) No Governmental Review. The Buyer understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Shares or the fairness or suitability of the investment in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Shares.
(i) Transfer or Resale. The Buyer understands that: (i) the Shares have not been and are not being registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) the Buyer shall have delivered to the Company an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such Shares to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) the Buyer provides the Company with reasonable assurance that such Shares can be sold, assigned or transferred pursuant to Rule 144, (ii) any sale of the Shares made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Shares under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”) thereunder, and (iii) neither the Company nor any other Person is under any obligation to register the Shares under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.
(j) Legends. The Buyer understands that the book-entry notation with the Transfer Agent or other instruments representing the Shares, if any, except as set forth below, shall bear any legend as required by the applicable “blue sky” Shares laws, rules and regulations of any state and a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of such share certificates):
THE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL, IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SHARES.
The Company acknowledges and agrees that the Buyer may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities
Act and, if required under the terms of such arrangement, the Buyer may transfer pledged or secured Shares to the pledgees or secured parties, subject to such transferee’s acknowledgement that the Shares are unregistered and subject to the transfer restrictions set forth therein and herein. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge.
(k) Legend Removal. The legend set forth above shall be removed and the Company shall deliver or cause to be delivered Shares to such holder by electronic delivery at the applicable balance account at The Depository Trust Company (“DTC”) or Computershare Trust Company, N.A., the current transfer agent of the Company and any successor transfer agent of the Company (the “Transfer Agent”), as applicable, and at the Buyer’s election so long as the Buyer is not an affiliate of the Company, if, unless otherwise required by state securities laws, (i) such Shares are registered for resale under the Securities Act, (ii) in connection with a sale, assignment or other transfer, such holder provides the Company with an opinion of a law firm reasonably acceptable to the Company, in a form reasonably acceptable to the Company, to the effect that such sale, assignment or transfer of the Shares may be made without registration under the applicable requirements of the Securities Act, or (iii) such holder provides the Company with reasonable assurance that the Shares can be sold, assigned or transferred pursuant to Rule 144. The Company shall cause its counsel to issue a legal opinion to the Transfer Agent promptly after the date on which the legend is to be removed pursuant to this Section 2(k) if required by the Transfer Agent or requested by the Buyer to effect the removal of the legend hereunder pursuant to the immediately preceding sentence.
(l) Validity; Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Buyer and shall constitute the legal, valid and binding obligations of the Buyer enforceable against the Buyer in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(m) No Conflicts. The execution, delivery and performance by the Buyer of this Agreement and the consummation by the Buyer of the transactions contemplated hereby will not (i) result in a violation of the organizational documents of the Buyer, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Buyer is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Buyer, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Buyer to perform its obligations hereunder.
(n) No General Solicitation and Advertising. The Buyer represents and acknowledges that it has not been solicited to offer to purchase or to purchase any Shares by means of any advertisement, article, notice or other communication regarding the Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or advertising. The Buyer confirms that it has a substantive relationship with the Company predating commencement of the offering of the Shares pursuant to this Agreement.
(o) Residency. The Buyer’s principal place of business is in the Netherlands.
(p) Brokers. There is no broker, investment banker, financial advisor, finder or other Person which has been retained by or is authorized to act on behalf of the Buyer who might be entitled to any fee or commission for which the Company will be liable in connection with the execution of this Agreement and the consummation of the transactions contemplated hereby.
(q) Financial Advisors. In connection with the issue and purchase of the Shares, SVB Securities LLC, Piper Sandler & Co. and LifeSci Capital LLC (each an “Advisor” and, collectively, the “Advisors”) have not acted as the Buyer’s financial advisor or fiduciary. The Buyer acknowledges that the Advisors assume no responsibility for independent verification of, or the accuracy or completeness of, the information supplied by the Company to the Buyer. The Buyer hereby further acknowledges and agrees that (i) each of the Advisors is acting solely as advisor to the Company in connection with the transactions contemplated hereby and is not acting as an underwriter, initial purchaser, dealer or in any other such capacity for the Buyer, the Company or any other person or entity in connection with the transactions contemplated hereby, (ii) the Advisors have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the transactions contemplated hereby, and (iii) the Advisors will have no responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the transactions contemplated hereby or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) of any thereof, or (B) the financial condition, business, or any other matter concerning the Company or the transactions contemplated hereby. To the extent permitted by applicable law, the Buyer agrees that it shall not seek redress from the Advisors or any of their or their respective affiliates’ control persons, officers, directors or employees for all or part of any loss or losses the Buyer may suffer in respect of this Agreement or its investment, and neither the Advisors nor any of their or their respective affiliates’ control persons, officers, directors or employees shall have any liability to Buyer for, anything which any of them may do or refrain from doing in connection with this Agreement.
(r) Short Sales and Confidentiality Prior to the Date Hereof. Other than consummating the transactions contemplated hereunder, the Buyer has not, nor has any person acting on behalf of or pursuant to any understanding with the Buyer, directly or indirectly executed any purchases or sales, including “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable Ordinary Shares) (“Short Sales”), of the Shares of the Company during the period commencing as of the time that the Buyer was first contacted by the Company or any other person regarding the transactions contemplated hereby and ending immediately prior to the date hereof. Notwithstanding the foregoing, if the Buyer is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of the Buyer’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of the Buyer’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by this Agreement. Other than to other persons party to this Agreement, the Buyer has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect Short Sales or similar transactions in the future.
(s) No Intent to Effect a Change of Control. The Buyer has no present intent to effect a “change of control” of the Company as such term is understood under the rules promulgated pursuant to Section 13(d) of the Exchange Act.
(t) Independent Evaluation. The Buyer confirms and agrees that it has not relied on the advice of the Company or any representations by any affiliate thereof in making any decision to enter into this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the SEC Documents (defined below) or the Disclosure Schedules (as attached to this Agreement), which SEC Documents and Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or warranty otherwise made herein to the extent of the disclosure contained in the SEC Documents, the Company represents and warrants to the Buyer as of the date of this Agreement and as of the Closing Date:
(a) Emerging Growth Company Status. The Company is, and since the date of its initial public offering has been, an “emerging growth company,” as defined in Section 2(a) of the Securities Act.
(b) Nasdaq Listing. The Company is subject to and in compliance in all material respects with the reporting requirements of Section 13 or Section 15(d) of the Exchange Act. The Company is in compliance with the current listing standards of the Principal Market. The Company has filed a Notification of Listing of Additional Shares with Nasdaq with respect to the Shares.
(c) Organization and Qualification. The Company has been duly incorporated and is validly existing as a corporation in good standing (to the extent this concept applies) under the laws of Switzerland and has requisite corporate power and authority to own, lease and operate its properties and conduct its business as now conducted and to enter into and perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing (to the extent this concept applies) or other equivalent local law status (if any), as applicable, in each jurisdiction where the ownership or leasing of its properties or the conduct of business requires such qualification, except where the failure to be so qualified or in good standing or other equivalent local law status (if any), as applicable, would not result in a Material Adverse Effect (as defined below).
(d) Subsidiaries. Each subsidiary of the Company (each, a “Subsidiary” and, collectively, the “Subsidiaries”), represents all of the direct and indirect subsidiaries of the Company, has been duly incorporated or organized, as applicable, and is validly existing and in good standing (to the extent this concept applies) or other equivalent local law status (if any), as applicable, under the laws of the jurisdiction of its incorporation or organization, has requisite corporate or similar power and authority to own, lease and operate its properties and conduct its business as now conducted as described in the SEC Documents (as defined below) and is duly qualified to transact business and is in good standing (to the extent this concept applies) or other equivalent local law status (if any), as applicable, in each jurisdiction where the ownership or leasing of its properties or the conduct of business requires such qualification, except where the failure to be so qualified or in good standing, or other equivalent local law status (if any), as applicable, would not result in a Material Adverse Effect. Except as otherwise disclosed in the SEC Documents (as defined below), (i) all of the issued and outstanding shares of each Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through Subsidiaries, and (ii) except as otherwise disclosed in the SEC Documents, are free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of any Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary. Except as otherwise disclosed in the SEC Documents, the Company does not own or control, directly or indirectly, any corporation, association or other entity.
(e) Issuance of Shares. Schedule 3(e) sets forth (i) the stated share capital of the Company as of the date hereof, (ii) the number of shares issued and outstanding as of March 31, 2022, (iii) the number of shares issuable pursuant to the Company’s equity incentive plans as of the date hereof, and (iv) the number of shares issuable and reserved for issuance pursuant to securities exercisable for, or convertible into or exchangeable for any Ordinary Shares of the Company as of March 31, 2022. The New Shares will have been duly authorized for issuance and, upon issuance in accordance with the terms hereof, will be validly issued in compliance with Swiss law, fully paid and non-assessable, and the statutory preemptive rights of the existing shareholders of the Company with respect to the issuance of the New Shares will have been validly set aside. Assuming the accuracy of each of the representations and warranties set forth in Section 2 of this Agreement, the offer and delivery by the Company of the Shares is exempt from registration under the Securities Act. All of the issued and outstanding Ordinary Shares have been duly authorized and validly issued in compliance with Swiss law and are fully paid and non-assessable. None of the issued Ordinary Shares were issued in violation of the preemptive or other similar rights of any holder of the Company’s Ordinary Shares. As of the date hereof, except as described on Schedule 3(e), there are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which the Company is or may be obligated to issue any equity securities of any kind. Except as described on Schedule 3(e), there are no voting agreements, buy-sell agreements, option or right of first purchase agreements or other agreements of any kind among the
Company and any of the holders of the Company’s Ordinary Shares relating to the Ordinary Shares held by them.
(f) Authorization; Enforcement; Validity. This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforceability, including rights of indemnification, may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general application (including, but not limited to, the abuse of rights (Rechtsmissbrauch) and the principle of good faith (Grundsatz von Treu und Glauben)).
(g) Investment Company Act Status. The Company is not required and, after giving effect to the offering and sale of the Shares, will not be required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended.
(h) Consents. No consent, approval, authorization, filing with or order of any court, governmental agency or body, or other Person is required in connection with the transactions contemplated herein, except (i) such as may be required under the blue-sky laws of any jurisdiction in connection with the purchase of the Shares, (ii) such as have been obtained under the securities laws and regulations of jurisdictions outside of the United States in which the Shares are sold, (iii) the resolution of the Company's Board (as defined below) in the form of a duly notarized deed on the Capital Increase as set forth in article 652g Swiss Code of Obligations (Feststellungs- und Statutenänderungsbeschluss); and (iv) the filing and registration of the Capital Increase in the Commercial Register of the Canton of Basel-Stadt. The Company is not in violation of the listing requirements of the Principal Market and has not been informed as of the date hereof by the Principal Market of any future delisting or suspension of the Shares.
(i) No Conflicts. Neither the Company nor any of its Subsidiaries is (A) in violation of its articles of association (or similar organizational document), in force as at the date hereof or as expected to be in force immediately following the offering (B) in breach, default or violation of any of the terms or provisions of any agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument, as applicable, to which the Company or any of its Subsidiaries is a party, or to which any of their respective properties or assets are subject (collectively, “Agreements and Instruments”), or (C) in violation of any applicable 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, in the case of (B) and (C), for any such violation which would not, individually 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 compliance by the Company with its 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 of its Subsidiaries pursuant to, the Agreements and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, individually or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the articles of association or similar organizational document of the Company or any of its Subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. 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.
(j) Financial Condition. Except as otherwise disclosed in the SEC Documents, subsequent to the respective dates as of which information is given in this Agreement: (i) (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 (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) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its shares; (ii) neither the Company nor its Subsidiaries, considered as one enterprise, has (A) incurred any material liability or obligation, indirect, direct or contingent, including without limitation any losses or interference with its business from fire, explosion, flood, earthquakes, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute or court or governmental action, order or decree, that are material, individually or in the aggregate, to the Company and its Subsidiaries, considered as one entity or (B) issued or granted any of the Company’s ordinary shares or other securities convertible into or exchangeable or exercisable for or that represent the right to receive shares of the Company other than under the Company's equity incentive plans; and (iii) there has not been any material decrease in the share capital or any material increase in any short-term or long-term indebtedness of the Company or any of its Subsidiaries.
(k) Regulatory. Except as disclosed in the SEC Documents, there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity (including, without limitation, the U.S. Food and Drug Administration (the “FDA”), the Department of Justice (“DOJ”) or the European Medicines Agency (“EMA”)) now pending or, to the knowledge of the Company, threatened, against or affecting the Company or any of its Subsidiaries, which might result in a Material Adverse Effect, or which might 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 of its obligations hereunder; and the aggregate of all pending legal or governmental proceedings to which the Company or any such Subsidiary is a party, as applicable, or of which any of their respective properties or assets is the subject which are not described in the SEC Documents, could not result in a Material Adverse Effect.
(l) Auditors. Ernst & Young AG, whose report on the consolidated financial statements of the Company has been filed as part of the Company’s most recent annual report on Form 20-F filed with the SEC, is (i) an independent registered public accounting firm as required by the Securities Act, the Exchange Act and the rules of the PCAOB, (ii) in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under the Securities Act and (iii) a registered public accounting firm as defined by the PCAOB whose registration has not been suspended or revoked and who has not requested such registration to be withdrawn. Ernst & Young AG has not been engaged by the Company to perform any “prohibited activities” or provided to the Company any “non-audit services” (as defined in Section 10A of the Exchange Act).
(m) Stamp Taxes. On the Closing Date, all stamp duties or other transfer taxes (other than income or similar taxes) which are required to be paid in Switzerland in connection with the issuance, sale and transfer of the Shares to be sold to the Buyer hereunder will be, or will have been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with.
(n) No Supplier Disputes. To the knowledge of the Company, there is no strike, labor dispute, slowdown or work stoppage by the employees of any of its or any Subsidiary’s principal suppliers, manufacturers or contractors that is existing or imminent, which, in either case, would result in a Material Adverse Effect.
(o) Insurance. The Company and its Subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance 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 would not result in a Material Adverse Effect. Neither of the Company nor any of its Subsidiaries has been denied any insurance coverage which it has sought or for which it has applied.
(p) Property. Each of the Company and its Subsidiaries has good and marketable title to all real property owned by them and good title to all other properties owned by them, as applicable, 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 SEC Documents or (B) do not, individually 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, as applicable, 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 SEC Documents, are in full force and effect, and to the knowledge of the Company or any of its Subsidiaries, neither the Company nor any such Subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any such Subsidiary under any of the material leases or subleases mentioned above, or 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.
(q) Government Licenses. Each of the Company and its Subsidiaries possess such licenses, permits, exemptions, clearances, registrations, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities (including, without limitation, the FDA or the EMA) necessary to conduct the business now operated by them, except where the failure so to possess would not, individually or in the aggregate, result in a Material Adverse Effect. To the knowledge of the Company and its Subsidiaries, each of the Company and its Subsidiaries are and have been in compliance with the terms and conditions of all Governmental Licenses, except where the failure so to comply would not, individually 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, individually or in the aggregate, result in a Material Adverse Effect. The Company and its Subsidiaries have fulfilled and performed all of their material obligations with respect to such Governmental Licenses, and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Governmental Licenses. 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, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(r) Internal Controls. The Company and its Subsidiaries, on a consolidated basis, maintain effective internal control over financial reporting (as defined under Rule 13-a15 and 15d-15 under the Exchange Act) and a system of internal accounting controls sufficient 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 consolidated 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 SEC Documents, since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(s) Disclosure Controls. The Company and its Subsidiaries, on a consolidated basis, have established and maintain disclosure controls and procedures (as defined in Rules 13a-15 and 15d-15 under the Exchange Act), which (i) are designed to ensure that information relating to the Company, including its consolidated Subsidiaries, is made known to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared; (ii) have been evaluated by management of the Company for effectiveness as of the end of the Company’s most recent fiscal quarter; and (iii) are effective in all material respects to perform the functions for which they were established.
(t) Regulation M. Neither the Company nor, to the knowledge of the Company, any affiliate of the Company has taken, nor will the Company or any affiliate take, directly or indirectly, any action which is designed, or would 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 Ordinary Shares or to result in a violation of Regulation M under the Exchange Act.
(u) Violation of Laws. Except as described in the SEC Documents or would not, individually or in the aggregate, result in a Material Adverse Effect, (A) to the knowledge of the Company, neither the Company nor any of its Subsidiaries is in violation of any applicable federal, state, local or foreign statute, law, rule, regulation, ordinance, code, 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 human health, 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 (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 knowledge of the Company, 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 or affecting the Company or any of its Subsidiaries relating to Hazardous Materials or any Environmental Laws.
(v) ERISA. (i) Any “Employee Benefit Plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “ERISA”)) for which the Company or its ERISA Affiliates (as defined below) would have any liability (each, a “Plan”) has complied in all material respects with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to, ERISA and the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the “Code”), (ii) no Plan is subject to Section 412 of the Code or Section 302 or Title IV of ERISA, (iii) neither the Company nor any of its ERISA Affiliates has incurred or reasonably expects to incur any obligation or liability under (A) Title IV of ERISA with respect to termination of, or withdrawal from, any Plan, (B) Sections 412 and 430, 4971, 4975 or 4980B of the Code or (C) Sections 302 and 303, 406, 4063 and 4064 of ERISA, (iv) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan, excluding transactions effected pursuant to a statutory or administrative exemption, (v) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification, (vi) there is no pending audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other governmental agency or any foreign regulatory agency with respect to any Plan that could reasonably be expected to result in liability to the Company, (vii) there has not occurred, nor is there reasonably likely to occur, a material increase in the aggregate amount of contributions required to be made to all Plans by the Company or any of its Subsidiaries in the current fiscal year of the Company and its Subsidiaries compared to the amount of such contributions made in the Company’s and its Subsidiaries’ most recently completed fiscal year, and (viii) the Company does not have any “accumulated postretirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106). “ERISA Affiliate” means, with respect to the Company, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Code of which the Company is a member.
(w) Sarbanes-Oxley. The Company is in compliance with, and there is and has been no failure on the part of the Company and, to the Company’s knowledge, any of the Company’s directors or officers, in their capacities as such, to comply with, any provision of the Sarbanes-Oxley Act of 2002 and
all rules and regulations promulgated thereunder or implementing the provisions thereof that apply to the Company (the “Sarbanes-Oxley Act”).
(x) 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.
(y) Money Laundering. 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 applicable money laundering statutes of the jurisdictions where the Company or any of its Subsidiaries conduct business, 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 best knowledge of the Company, threatened.
(z) 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 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 State Secretariat of Economic Affairs (“SECO”), the Swiss Directorate of International Law (“DIL”), the Crimea Region of Ukraine, the so-called Donetsk People's Republic, the so-called Luhansk People's Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065 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 Shares, 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 prohibiting such funding 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.
(aa) Intellectual Property. The Company and its Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, trademarks, service marks, trade names, copyrights, (including all applications and registrations relating to any of the foregoing), inventions, licenses, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), or other intellectual property described in the SEC Documents as being owned or licensed by the Company or its Subsidiaries or which are necessary for the conduct of the Company’s business as currently conducted or as currently proposed to be conducted as described in the SEC Documents (collectively, “Intellectual Property Rights”). To the Company’s knowledge and except as disclosed in the SEC Documents (i) there are no unreleased liens or security interests which have been filed against any of the Intellectual Property owned by the Company; (ii) there are no third parties who have rights to any Intellectual Property, except for customary reversionary rights of third-party licensors with respect to Intellectual Property that is disclosed in the SEC Documents as licensed to the Company, and
the Company has taken all reasonable steps necessary to secure its interests in the Intellectual Property from its employees and contractors; (iii) there is no infringement, misappropriation or violation by third parties of any Intellectual Property; (iv) the Company is not infringing, misappropriating or violating the intellectual property rights of third parties; (v) the Company is the sole owner of the Intellectual Property owned by it and has the valid right to use such Intellectual Property; and (vi) no employee of the Company is in or has been in violation of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment with the Company. There is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others: (A) challenging the Company’s rights in or to any Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; (B) challenging the validity, enforceability or scope of any Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim; or (C) asserting that either the Company infringes or otherwise violates, or would, upon the commercialization of any product described in the SEC Documents as under development, infringe, misappropriate or violate, any patent, trademark, trade name, service name, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any facts which would form a reasonable basis for any such action, suit, proceeding or claim. To the knowledge of the Company, the Company has complied with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company, and all such agreements are in full force and effect.
(bb) Health Regulatory. Except as disclosed in the SEC Documents, 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 FDA, the Department of Health and Human Services (“HHS”) and any comparable foreign or other regulatory authority or Governmental Entity to which they are subject, in Europe or elsewhere (collectively, the “Applicable Regulatory Authorities”); (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) 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 or non-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.; and 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 in Europe or elsewhere.
(cc) Clinical Trials. None of the Company’s product candidates have received marketing approval or licensure from any Applicable Regulatory Authority. Except as described in the SEC Documents, all clinical and pre-clinical studies and trials sponsored or conducted by or on behalf of the Company or its Subsidiaries, or in which the Company or its Subsidiaries has participated with respect to the Company’s product candidates, including without limitation, any such studies and trials that are described in the SEC Documents, or the results of which are referred to in the SEC Documents, 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 in keeping 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 SEC Documents of the structure and 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 SEC Documents, the results of which are inconsistent with or call into question the results described or referred to in the SEC Documents; 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 SEC Documents or the results of which are referred to in the SEC Documents, 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 and any similar foreign laws and regulations in Europe or elsewhere. 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 or any other Applicable Regulatory Authority to have engaged in scientific misconduct.
(dd) Broker-Dealer. The Company is not required to register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act and does not, directly or indirectly through one or more intermediaries, control or have any other association with (within the meaning of Article I of the By-laws of FINRA) any member firm of FINRA. No relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors, officers or shareholders of the Company, on the other hand, which is required by the rules of FINRA to be described in the SEC Documents, which is not so described. All of the information (including, but not limited to, information regarding affiliations, security ownership and trading activity) provided to the Buyer or its counsel by the Company, its officers and directors and the holders of any securities (debt or equity) or warrants, options or rights to acquire any securities of the Company in connection with the filing to be made and other supplemental information to be provided to FINRA pursuant to FINRA Rule 5110 in connection with the transactions contemplated by this Agreement is true, complete and correct.
(ee) Health Care Laws. To the Company’s knowledge, the manufacturing facilities and operations of its suppliers are operated in compliance 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.
(ff) Cybersecurity. (A) To the knowledge of the Company, there has been no material security breach or incident, including any unauthorized access to or disclosure, or other compromise of the confidentiality, integrity or availability of the Company’s or its Subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective employees, suppliers, vendors and any third party 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 of, and each of them have no knowledge of any event or condition that would reasonably be expected to result in any security breach or incident described in the preceding clause (A); and (C) the Company and its Subsidiaries have implemented commercially reasonable controls, policies, procedures, and technological safeguards designed to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data, including as required by applicable regulatory standards. The Company and its Subsidiaries are presently in compliance with all (i) applicable laws or statutes, (ii) judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, (iii) internal policies of the Company or its Subsidiaries and (iv) contractual obligations of the Company or its Subsidiaries relating to the privacy and security of IT Systems and Data, except, in each case, where the failure to be in compliance would not reasonably be expected to have a Material Adverse Effect.
(gg) Foreign Private Issuer. The Company is a “foreign private issuer” as defined in Rule 405 of the Securities Act.
(hh) PFIC. Based on the nature of the Company’s income and the estimated value and composition of the Company’s assets, the Company does not believe that it was a “passive foreign investment company” for U.S. federal income tax purposes for its taxable year ended December 31, 2021.
(ii) Dividends. Except as disclosed in the SEC Documents, (i) all dividends and other distributions declared and payable on the Ordinary Shares may under current laws and regulations of Switzerland be paid by the Company to the holder thereof in Swiss franc that may be converted into foreign currency and, except for certain restrictions with respect to national and international sanctions relating to certain countries, freely transferred out of Switzerland, and (ii) all such payments made to holders thereof or therein who are non-residents of Switzerland will not be subject to income or withholding taxes under laws and regulations of Switzerland or any political subdivision or taxing authority thereof or therein and will otherwise be free and clear of any other tax, duty, withholding or deduction in Switzerland or any political subdivision or taxing authority thereof or therein and without the necessity of obtaining any governmental authorization in Switzerland or any political subdivision or taxing authority thereof or therein.
(jj) Swiss Law. This Agreement is in proper form under the laws of Switzerland for the enforcement thereof against the Company, and to ensure the legality, validity, enforceability or admissibility into evidence in Switzerland of this Agreement.
(kk) Acknowledgment Regarding Buyer’s Purchase of Shares. The Company acknowledges and agrees that the Buyer is acting solely in its capacity of an arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby and that the Buyer is not (i) an officer or director of the Company, (ii) an “affiliate” of the Company or any of its Subsidiaries, or (iii) a “beneficial owner” of more than 10% of the Ordinary Shares (as defined for purposes of Rule 13d-3 of the Exchange Act and the rules and regulations of the SEC promulgated thereunder). The Company further acknowledges that the Buyer is not acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby, and any advice given by the Buyer or any of its representatives or agents in connection with this Agreement and the
transactions contemplated hereby is merely incidental to the Buyer’s purchase of the Shares. The Company further represents to the Buyer that the Company’s decision to enter into this Agreement has been based solely on the independent evaluation by the Company and its representatives.
(ll) No General Solicitation; Agents’ Fees. Neither the Company, nor any of its Subsidiaries, affiliates (as defined in Rule 405 under the Securities Act), nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (each within the meaning of Rule 502(c) under the Securities Act) in connection with the offer or sale of the Shares. The Company shall be responsible for the payment of any fees and financial advisory fees (other than for persons engaged by any Buyer or its investment advisor) relating to or arising out of the transactions contemplated hereby. The Company has engaged the Advisors to act as its financial advisors in connection with the sale of the Shares.
(mm) No Integrated Offering. None of the Company, its Subsidiaries, any of their affiliates, and any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration of the issuance of any of the Shares under the Securities Act, whether through integration with prior offerings or otherwise, or cause this offering of the Shares to require approval of shareholders of the Company for purposes of any applicable shareholder approval provisions, including, without limitation, under the rules and regulations of any exchange or automated quotation system on which any of the Shares of the Company are listed or designated. None of the Company, its Subsidiaries, their affiliates and any Person acting on their behalf will take any action or steps referred to in the preceding sentence that would require registration of the issuance of any of the Shares under the Securities Act or cause the offering of the Shares to be integrated with other offerings for purposes of any such applicable shareholder approval provisions.
(nn) SEC Documents; Financial Statements. Since April 8, 2021, the Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it through the Closing Date with the SEC pursuant to the reporting requirements of the Exchange Act (all of the foregoing filed prior to the Closing Date and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein, including the prospectus filed by the Company with the SEC pursuant to Rule 424(b) on April 9, 2021, being hereinafter referred to as the “SEC Documents”). As of their respective filing dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC and as of the date hereof, contained or contain any untrue statement of a material fact or omitted or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective filing dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (the “IASB”) applied on a consistent basis throughout the periods covered thereby (except (i) as may be otherwise indicated in such financial statements or the notes thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the consolidated financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf of the Company to the Buyer which is not included in the SEC Documents contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act.
(oo) Absence of Certain Changes. Since the date of the Company’s last filing with the SEC pursuant to the reporting requirements of the Exchange Act, except as described on Schedule 3(oo), there has not been:
(i) any change in the consolidated assets, liabilities, financial condition or operating results of the Company or its Subsidiaries from that reflected in the financial statements included in the Company’s Annual Report on Form 20-F, filed on April 7, 2022, except for changes in the ordinary course of business which have not had and could not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate;
(ii) any declaration or payment of any dividend, or any authorization or payment of any distribution, on any of the shares of the Company, or any redemption or repurchase of any Shares of the Company;
(iii) any material damage, destruction or loss, whether or not covered by insurance to any assets or properties of the Company or its Subsidiaries;
(iv) any waiver, not in the ordinary course of business, by the Company or any Subsidiary of a material right or of a material debt owed to it;
(v) any satisfaction or discharge of any lien, claim or encumbrance or payment of any obligation by the Company or a Subsidiary, except in the ordinary course of business and which is not material to the assets, properties, financial condition, operating results or business of the Company and its Subsidiaries taken as a whole (as such business is presently conducted and as it is proposed to be conducted);
(vi) any change or amendment to the Company’s articles of association or organizational regulations, or material change to, or waiver of any material right under, any Material Contract (as defined below) or arrangement by which the Company or any Subsidiary is bound or to which any of their respective assets or properties is subject;
(vii) any material labor difficulties or labor union organizing activities with respect to employees of the Company or any Subsidiary;
(viii) any material transaction entered into by the Company or a Subsidiary other than in the ordinary course of business;
(ix) the loss of the services of any key employee, or material change in the composition or duties of the senior management of the Company or any Subsidiary; or
(x) any other event or condition of any character that has had or could reasonably be expected to have a Material Adverse Effect.
“Material Contract” means any contract, instrument or other agreement to which the Company or any Subsidiary is a party or by which it is bound which is material to the business of the Company and its Subsidiaries, taken as a whole, including those that have been filed or were required to have been filed as an exhibit to the SEC Filings pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K.
(pp) No Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred or exists, or is contemplated to occur, with respect to the Company or its Subsidiaries or their respective business, properties, prospects, operations or financial condition, that would be required to be disclosed by the Company under applicable Shares laws in its reports under Section 13(a) or 15(d) of the Exchange Act and which has not been publicly announced.
(qq) Acknowledgement Regarding Buyer’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding, but subject to compliance by the Buyer with applicable law, it is understood and acknowledged by the Company (i) that the Buyer has not been asked by the Company or its Subsidiaries to agree, nor has the Buyer agreed with the Company or its Subsidiaries, to desist from purchasing or selling, long and/or short, Shares of the Company, or “derivative” Shares based on Shares issued by the Company or to hold the Shares for any specified term, (ii) that past or future open market or other transactions by the Buyer, including, without limitation, short sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded ordinary shares, (iii) that the Buyer, and counter parties in “derivative” transactions to which any the Buyer is a party, directly or indirectly, presently may have a “short” position in the Ordinary Shares, and (iv) that the Buyer shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction. The Company further understands and acknowledges that, subject to compliance by the Buyer with applicable law, (A) one or more Buyers may engage in hedging and/or trading activities at various times during the period that the Shares are outstanding and (B) such hedging and/or trading activities (if any) could reduce the value of the existing shareholders’ equity interests in the Company at and after the time that the hedging and/or trading activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of this Agreement.
(rr) No Overindebtedness. Neither the Company nor its Swiss subsidiaries are overindebted, or suffering from capital loss within the meaning of article 725 of the Swiss Code of Obligations.
4. COVENANTS
(a) Blue Sky. The Company, on or before the Closing Date, shall take such action as the Company shall reasonably determine is necessary, if any, in order to obtain an exemption for or to qualify the Shares for sale to the Buyer at the Closing pursuant to this Agreement under applicable securities or “blue sky” laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken to the Buyer on or prior to the Closing Date. The Company shall make all filings and reports relating to the offer and sale of the Shares required under applicable securities or “blue sky” laws of the states of the United States following the Closing Date.
(b) Reporting Status; Public Information. Until the Buyer no longer owns any Shares, the Company shall timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed with the SEC pursuant to the Exchange Act, and the Company shall use commercially reasonable efforts not to terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act would otherwise permit such termination.
(c) Use of Proceeds. The Company will use the net proceeds from the issuance and sale of the Shares for general corporate purposes, including the development of its clinical and pre-clinical candidates and preparation for the commercialization of its lead clinical candidate, and not for (i) the repayment of any outstanding Indebtedness of the Company or any of its Subsidiaries or (ii) redemption or repurchase of any of its or its Subsidiaries’ equity securities. The Buyer acknowledges that the Company has agreed under a letter agreement with the Advisors to pay these financial advisors certain fees in respect of the issuance and sale of the Shares to the Buyer.
(d) Listing. The Company will use commercially reasonable efforts to continue the listing and trading of the Ordinary Shares on the Principal Market and, in accordance therewith, will use reasonable best efforts to comply in all material respects with the Company’s reporting, filing and other obligations under the rules and regulations of the Principal Market.
(e) Fees. Each party hereto shall bear its own expenses in connection with the sale of the Shares to the Buyer.
(f) Disclosure of Transactions and Other Material Information. The Company may, at its discretion, issue a press release on or after the date of this Agreement. By 5:30 p.m., New York City time, on the Closing Date, the Company shall make commercially reasonable efforts to file a Report of Foreign Private Issuer on Form 6-K describing the terms of the transactions contemplated by this Agreement in the form required by the Exchange Act (the “Filing”). From and after the filing of the Filing with the SEC, the Buyer shall not be in possession of any material, nonpublic information received from the Company, any of its Subsidiaries or any of their respective officers, directors, employees or agents, that is not disclosed in the Filing, unless prior thereto the Buyer has consented to the receipt of such information and agreed with the Company to keep such information confidential. In addition, effective upon the issuance of the Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors or employees, on the one hand, and the Buyer, on the other hand, shall terminate. The Company shall not, and shall cause each of its Subsidiaries and its and each of their respective officers, directors, employees and agents, not to, provide the Buyer with any material, nonpublic information regarding the Company or any of its Subsidiaries from and after the filing of the Filing with the SEC without the express written consent of the Buyer. If the Buyer has, or believes it has, received any such material, nonpublic information regarding the Company or any of its Subsidiaries to which it has not consented to in writing, it shall provide the Company with written notice thereof. Neither the Company, its Subsidiaries nor the Buyer shall issue any press releases or any other public statements with respect to the transactions contemplated hereby, other than a subsequent Report of Foreign Private Issuer on Form 6-K filed on the date of this Agreement that includes this Agreement as an exhibit to such Filing with the SEC; provided, however, that the Company shall be entitled, without the prior approval of the Buyer, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the Filing and contemporaneously therewith and (ii) as is required by applicable law and regulations. Without the prior written consent of the Buyer, neither the Company nor any of its Subsidiaries or affiliates shall disclose the name of the Buyer in any filing, announcement, release or otherwise, unless such disclosure is required by law, regulation or the Principal Market. To the extent that the Company delivers any material, non-public information regarding the Company to the Buyer (i) without the Buyer’s consent, absent an agreement as to confidentiality with respect to such information, or (ii) directly or indirectly, to the Buyer in relation to its Board Designee and Board Observer (each as defined below) rights, the Company hereby covenants and agrees that the Buyer shall not have any duty of confidentiality to Company, any of its Subsidiaries, or any of their respective officers, directors, agents or employees, or a duty to the Company, and of its Subsidiaries or any of their respective officers, directors, agents or employees not to trade on the basis of, such material, non-public information, provided that the Buyer shall remain subject to applicable law. The Company understands and confirms that the Buyer shall be relying on the foregoing covenant in effecting transactions in Shares of the Company.
(g) Conduct of Business. The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance or regulation of any governmental entity, except where such violations would not result, either individually or in the aggregate, in a Material Adverse Effect.
(h) Board Appointment.
(i) As of the Closing Date, the Buyer shall have the right (but not the obligation) to nominate one (1) person (the “Board Designee”) to the board of directors of the Company (the “Board”), to be proposed by the Board for election at a shareholders’ meeting of the Company to be held prior to the end of 2022.
(ii) As of the Closing Date, for the interim period between the Closing Date and the potential election of the proposed Board Designee by the shareholders’ meeting of the Company and in case the shareholders’ meeting of the Company does not vote in favor of electing the Board Designee, the Buyer shall have the right (but not the obligation) to designate one (1) individual as a Board observer (the “Board Observer”). The Board Observer shall have the same rights as a Board member except for the Board voting rights and committee roles. Subject to executing a customary confidentiality agreement as reasonably required by the Company, the Board Observer shall be allowed to attend all Board meetings as an equal insider, including the executive session, and will be reimbursed for costs
related to hotels, flights etc., subject to typical carveouts required to protect the Company’s attorney-client privilege and other fiduciary obligations.
5. REGISTER; TRANSFER AGENT INSTRUCTIONS
(a) Transfer Agent Instructions. The Company represents and warrants that no instruction, other than stop transfer instructions to give effect to Section 2(i) hereof, will be given by the Company to the Transfer Agent with respect to the Shares, and that the Shares shall otherwise be freely transferable on the books and records of the Company as and to the extent provided in this Agreement and the Company’s articles of association and under applicable law. If the Buyer effects a sale, assignment or transfer of the Shares in accordance with Section 2(i), the Company shall permit the transfer and shall promptly instruct its Transfer Agent to credit shares to the applicable balance accounts of such Transfer Agent in such name and in such denominations as specified by the Buyer to effect such sale, transfer or assignment. In the event that such sale, assignment or transfer involves Shares sold, assigned or transferred pursuant to an effective registration statement or pursuant to Rule 144, the Transfer Agent shall issue such Shares to the Buyer, assignee or transferee, as the case may be, without any restrictive legend.
(b) Breach. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5 will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section 5, that the Buyer shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required.
6. CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL
The obligation of the Company hereunder to issue and sell the Shares to the Buyer at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing the Buyer with prior written notice thereof:
(a) The Buyer shall have executed this Agreement and delivered the same to the Company.
(b) The Buyer shall have delivered to the Company the executed subscription form (Zeichnungsschein) in the form of Schedule 1(a) hereto in original form (wet-ink signed) by no later than 6:00 a.m. (New York City time) one Business Day prior to the Closing Date or such other time and date as agreed between the Company and the Buyer.
(c) The Buyer shall have deposited, not later than 6:00 a.m. (New York City time) one Business Day prior to the Closing Date, or such other date and time as agreed between the Company and the Buyer, same-day funds for value in the amount of the Issue Price with the Bank, in a blocked account for the capital increase (Kapitaleinzahlungskonto), made out to the Company’s name, and the Bank shall have issued and delivered to the Company a written confirmation of payment (Kapitaleinzahlungsbestätigung) of the Issue Price by no later than 10:00 a.m. (New York City time) one Business Day prior to the Closing Date or such other date and time as agreed between the Company and the Buyer.
(d) The Buyer shall have paid the Purchase Price for the Treasury Shares being purchased by the Buyer at the Closing, if any, by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company.
(e) The representations and warranties of the Buyer shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or
Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date), and the Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Buyer at or prior to the Closing Date.
(f) The Company shall have obtained all governmental, regulatory or third-party consents and approvals, if any, necessary for the issuance and sale of the Shares.
(g) The Buyer shall have delivered such documents as may be reasonably requested by the Transfer Agent in connection with the registration of the Shares in the share register of the Company maintained by the Transfer Agent.
7. CONDITIONS TO THE BUYER’S OBLIGATION TO PURCHASE
The obligation of the Buyer hereunder to purchase the Shares is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have duly executed and delivered to the buyer this Agreement.
(b) The Shares (i) shall be listed on the Principal Market and (ii) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market.
(c) The Company shall have delivered to the Buyer (i) a copy of the resolution adopted by the Company’s Board in connection with the issuance of the New Shares as part of the Capital Increase (Erhöhungsbeschluss) and (ii) a certificate, executed by an executive officer of the Company and dated as of the Closing Date certifying the matters set forth in Sections 7(d) and 7(e).
(d) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date.
(e) Subject to the registration of the New Shares to be issued under this Agreement having been validly registered in the Commercial Register of the Canton of Basel-Stadt, the Company shall have obtained all governmental, regulatory or third-party consents and approvals, if any, necessary for the issuance and sale of the Shares. No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby.
8. TERMINATION
In the event that (i) the Closing shall not have occurred with respect to the Buyer on or before ten (10) Business Days from the date hereof due to the Company’s or the Buyer’s failure to satisfy the conditions set forth in Sections 6 and 7 above or (ii) the Company has not delivered the number of New Shares subscribed for and purchased by the Buyer within twenty (20) Business Days of the Closing Date as a result of a failure of the Commercial Register of the Canton of Basel-Stadt to register such New Shares within that period, the nonbreaching party or, under the circumstances contemplated under (ii), any party shall have the option to terminate this Agreement at the close of business on such date without liability of any party to any other party. “Business Day” means any day on which the Principal Market is open for trading other than Saturday, Sunday or other day or half-day on which commercial banks in The City of New York or in the city of Zurich, Canton of Zurich (Switzerland), are authorized or required by law or other governmental action to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York or in the city of Zurich, Canton of Zurich (Switzerland) generally are open for use by customers on such day.
If this Agreement is terminated pursuant to this Section 8 after the Closing Date, the Company and the Buyer shall take all such actions which are required in order to unwind the transactions contemplated by this Agreement and to revert as soon as possible all Closing actions which have already been taken or effected by the Company and/or the Buyer.
9. MISCELLANEOUS
(a) Governing Law; Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Agreement (and any subsequent amendments thereof) shall be governed by and construed in accordance with the substantive laws of Switzerland, without regard to its conflict of law provisions. Any dispute arising out of or in connection with this Agreement (and any subsequent amendments thereof) shall be subject to the exclusive jurisdiction of the competent courts of Basel-Stadt, Switzerland, without giving effect to any choice of law or conflict of law provision or rule (whether of Switzerland or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than Switzerland.
(b) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile or electronic transmission. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
(c) Headings. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.
(d) Severability. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other jurisdiction.
(e) Entire Agreement; Amendments. This Agreement shall supersede all other prior oral or written agreements between the Buyer and the Company and this Agreement and the instruments referenced herein and therein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor
the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company and the Buyer, except as specifically set forth herein. Sections 2, 3, and 9(h) of this Agreement may not be modified, waived or terminated in a manner that is material and adverse to the Advisors without the prior written consent of the Advisors. No provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement. The Company has not, directly or indirectly, made any binding agreements with the Buyer relating to the terms or conditions of the transactions contemplated by this Agreement except as set forth in this Agreement. Without limiting the foregoing, the Company confirms that, except as set forth in this Agreement, the Buyer has made no commitment or promise or has any other obligation to provide any financing to the Company or otherwise.
(f) Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally, (ii) when sent, if sent by email (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the sending party does not receive an automatically generated message from the recipient’s email server that such email could not be delivered to such recipient, or (iii) one Business Day after deposit with an overnight courier service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications shall be:
If to the Company:
VectivBio Holding AG
Aeschenvorstadt 36, 4051
Basel, Switzerland
E-mail: claudia.daugusta@vectivbio.com
Attention: Claudia D’Augusta
with a copy (for informational purposes only) to:
Cooley LLP
500 Boylston Street
Boston, Massachusetts 02116
Email: rsansom@cooley.com
Attention: Ryan Samson
and
Homburger AG
Prime Tower
Hardstrasse 201
Switzerland
Email: andreas.mueller@homburger.ch
Attention: Andreas Müller
If to the Transfer Agent:
Computershare Trust Company, N.A.
480 Washington Boulevard, 26th Floor
Jersey City, NJ 07310
Email: Donna.Bent@computershare.com
Attn: Donna Bent
If to the Buyer:
Forbion Growth II Management B.V.
Gooimeer 2-35
1411DC
Naarden, The Netherlands
Email: Wouter.Joustra@forbion.com
Attn: Wouter Joustra
or to such other physical or electronic address or to the attention of such other Person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s email containing the time, date and recipient email address of such transmission, or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by email or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively. To the extent that any notice provided pursuant to this Agreement constitutes, or contains material nonpublic information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the SEC pursuant to a Report of Foreign Private Issuer on Form 6-K.
(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Neither the Company nor the Buyer shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party, provided that the Buyer may assign some or all of its rights hereunder without the consent of the Company to one of its affiliates, in which event such affiliate shall be deemed to be the Buyer hereunder with respect to such assigned rights; further provided that such affiliate agrees in writing to be bound, with respect to the transferred Shares, by the provisions of this Agreement that apply to the “Buyer.”
(h) No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except that (1) each Indemnitee shall have the right to enforce the obligations of the Company with respect to Section 9(k) below and (2) the Advisors are entitled to rely on, and shall be third party beneficiaries of, the representations and warranties of the Buyer contained in Section 2 of this Agreement and the representations and warranties of the Company as if such representations and warranties were made directly to the Advisors.
(i) Survival. Unless this Agreement is terminated under Section 8, the representations and warranties of the Company and the Buyer contained in Sections 2 and 3, and the agreements and covenants set forth in Sections 4, 8 and 9 shall survive the Closing. The Buyer shall be responsible only for its own representations, warranties, agreements and covenants hereunder.
(j) Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(k) Indemnification. In consideration of the Buyer’s execution and delivery of this Agreement and acquiring the Shares thereunder and in addition to all of the Company’s other obligations under this Agreement, the Company shall defend, protect, indemnify and hold harmless the Buyer and all of its stockholders, partners, members, officers, directors, employees and direct or indirect investors (collectively, the “Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and
including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising out of, or relating to (a) any material misrepresentation or breach of any representation or warranty made by the Company in this Agreement or any certificate delivered by the Company hereunder, (b) any breach of any covenant, agreement or obligation of the Company contained in this Agreement or any certificate delivered by the Company hereunder or (c) any cause of action, suit or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company) and arising out of or resulting from the execution, delivery, performance or enforcement of this Agreement or any certificate delivered by the Company hereunder, except, in each case, with respect to any Indemnified Liabilities that resulted from any Indemnitee’s gross negligence, willful misconduct or fraud or to the extent that a loss, claim, damage or liability is attributable to any Buyer’s breach of any of the representations, warranties, covenants or agreements made by the Buyer in this Agreement and provided, that the Indemnified Liability shall in any event not exceed in the aggregate amount of distributable reserves of the Company within the meaning of article 675 of the Swiss Code of Obligations.
(l) No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.
(m) Remedies. The Buyer shall have all rights and remedies set forth in this Agreement. Any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in this Agreement and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would be adequate. Each party hereto agrees that it shall not have a remedy of punitive or consequential damages against the other and hereby waives any right or claim to punitive or consequential damages it may now have or may arise in the future.
(n) Payment Set Aside. To the extent that the Company makes a payment or payments to the Buyer hereunder or the Buyer enforces or exercises its rights hereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, foreign, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
(o) Attorneys’ Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
(p) Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Buyer and the Company have caused its respective signature page to this Subscription and Share Purchase Agreement to be duly executed as of the date first written above.
| | | | | | | | | | | | | | | | | |
| COMPANY |
| | | | | |
| VECTIVBIO HOLDING AG |
| | | | | |
| By: | /s/ Luca Santarelli |
| Name: | Luca Santarelli |
| Title: | Chief Executive Officer |
| | | | | |
| By: | /s/ Claudia D’Augusta |
| Name: | Claudia D’Augusta |
| Title: | Chief Financial Officer |
| | | | | | | | | | | | | | | | | |
| BUYER: |
| | | | | |
| FORBION GROWTH II MANAGEMENT B.V. |
| | | | | |
ON BEHALF OF FORBION GROWTH OPPORTUNITIES FUND II COOPERATIEF U.A. |
| | | | | |
| By: | /s/ Wouter Joustra |
| Name: | Wouter Joustra |
| Title: | Signing as authorized proxy |
| | | | | | | | | | | | | | | | | |
| FORBION GROWTH II MANAGEMENT B.V. |
| | | | | |
ON BEHALF OF FORBION GROWTH OPPORTUNITIES FUND II COOPERATIEF U.A. |
| | | | | |
| By: | /s/ Nanna Lüneborg |
| Name: | Nanna Lüneborg |
| Title: | Signing as authorized proxy |
SIGNATURE PAGE TO SUBSCRIPTION AND SHARE PURCHASE AGREEMENT
SCHEDULE 1
The Buyer shall subscribe for the New Shares and, respectively, purchase the Treasury Shares as follows:
| | | | | | | | | | | |
| Source of Shares | Number of Shares | Issue Price | Purchase Price |
| New Shares | 425,252 | USD 2,445,199.00 | n/a |
| Treasury Shares | 3,053,008 | n/a | USD 17,554,796.00 |
SCHEDULE 1(a)
Zeichnungsschein
Subscription Form
[ l ], [Address] (Zeichner / Subscriber),
zeichnet in voller Kenntnis der Statuten der VectivBio Holding AG, Basel, CHE-289.024.902 (die Gesellschaft), und unter Bezugnahme auf (i) die Ermächtigung des Verwaltungsrates der Gesellschaft gemäss Generalversammlungsbeschluss vom 1. April 2021 im Rahmen des genehmigten Aktienkapitals das Aktienkapital der Gesellschaft gemäss Art. 3a der Statuten der Gesellschaft um maximal CHF 641'049.60 zu erhöhen und (ii) den Kapitalerhöhungsbeschluss des Verwaltungsrates der Gesellschaft vom [ l ]:
subscribes in full knowledge of the articles of association of VectivBio Holding AG, Basel, CHE-289.024.902 (the Company), and with reference to (i) the authorization of the board of directors of the Company pursuant to the resolution of the general meeting of shareholders held on April 1, 2021 to increase the share capital of the Company by an amount of up to CHF 641,049.60 out of the authorized share capital pursuant to art. 3a of the articles of association of the Company and (ii) the resolution of the board of directors of the Company to increase the share capital dated [ l ]:
_______________________ ordentliche Namenaktien der Gesellschaft mit einem Nennwert von je CHF 0.05 zum Ausgabebetrag von USD 5.75 pro Aktie (Gesamtausgabebetrag von USD _______________________).
_______________________ registered ordinary shares of the Company with a nominal value of CHF 0.05 each at an issue price of USD 5.75 per share (aggregate issue price of USD _______________________).
Der Zeichner verpflichtet sich hiermit bedingungslos, eine dem Gesamtausgabebetrag entsprechende Einlage zu leisten. Die Einlage erfolgt durch:
The Subscriber herewith undertakes unconditionally to make a contribution corresponding to the aggregate issue price. The contribution is paid by:
Geldeinlage in der Höhe von USD _______________________ durch Einzahlung auf das von der Gesellschaft bezeichnete Konto.
deposit of funds by cash payment of USD _______________________ into the account designated by the Company.
Dieser Zeichnungsschein und die darin übernommenen Verpflichtungen sind gültig bis zum 30. Juni 2022.
This subscription form and the obligations assumed herein are valid until June 30, 2022.
Dieser Zeichnungsschein untersteht materiellem Schweizer Recht ohne Berücksichtigung der kollisionsrechtlichen Bestimmungen des internationalen Privatrechts und unter Ausschluss des Übereinkommens der Vereinten Nationen über Verträge über den internationalen Warenkauf. Ausschliesslicher Gerichtsstand für sämtliche Streitigkeiten aus oder im Zusammenhang mit diesem Zeichnungsschein ist die Stadt Basel, Schweiz.
This subscription form shall be governed by the substantive laws of Switzerland, without regard to the conflicts of law provisions of international private law and excluding the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for any dispute, claim or controversy arising under, out of or in connection with or related to this subscription form shall be the city of Basel, Switzerland.
Wenn dieser Zeichnungsschein bei Durchführung der Kapitalerhöhung nur als handschriftlich oder elektronisch unterschriebene pdf- oder Faxkopie (aber nicht als Original) vorliegt, bevollmächtigt der
Zeichner hiermit jedes Mitglied des Verwaltungsrates der Gesellschaft, diesen Zeichnungsschein im Namen des Zeichners auf der Grundlage dieser handschriftlich oder elektronisch unterschriebenen pdf- oder Faxkopie zu unterzeichnen.
If this subscription form is available at completion of the capital increase only as a wet ink or electronically signed pdf or fax copy (but not as an original), the Subscriber hereby authorizes any member of the board of directors of the Company to sign this subscription form on behalf of the Subscriber on the basis of such wet ink or electronically signed pdf or fax copy.
Im Fall von Differenzen zwischen der deutschen und der englischen Fassung dieses Zeichnungsscheins geht die deutsche Fassung vor.
In case of discrepancies between the German and the English version of this subscription form, the German version shall prevail.
[Unterschriftenseite folgt]
[Signature page follows]
Datum / date: _________________________
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Name: Title: | | Name: Title: |
SCHEDULE 3(E)
(i) Share Capital of the Company as of the date hereof:
l CHF 1,984,436.05, divided into 39,688,721 Ordinary Shares
(ii) The number of Ordinary Shares issued and outstanding as of March 31, 2022:
l 35,973,339 Ordinary Shares issued and outstanding (excluding 662,374 Ordinary Shares the Company held in treasury)
(iii) The number of Ordinary Shares of the Company issuable pursuant to the Company’s equity incentive plans as of the date hereof:
l 3,841,800 Ordinary Shares issuable upon the exercise of options outstanding under the Company's equity incentive plans as of December 31, 2021;
l 580,453 Ordinary Shares issuable upon vesting of RSUs issued under the Company's equity incentive plans as of December 31, 2021, of which 103,319 RSUs have been settled in treasury shares as of the date hereof; and
l 1,875,171 Ordinary Shares issuable upon the exercise of options issued after December 31, 2021 under the Company's equity incentive plans.
(iv) The number of Ordinary Shares issuable and reserved for issuance pursuant to securities exercisable for, or convertible into or exchangeable for any Ordinary Shares of the Company as of March 31, 2022:
l 324,190 Ordinary Shares issuable upon exercise of outstanding warrants issued to Kreos Capital VI (Expert Fund) LP after December 31, 2021 at an exercise price of USD 5.5243 per Ordinary Share and 356,961 Ordinary Shares initially issuable upon conversion of the minimum convertible note of the convertible loans that may be issued to Kreos Capital VI (UK) Limited at a conversion price of USD 7.0036 per Ordinary Share.
Outstanding warrants, options, convertible securities or other rights, agreements or arrangements under which the Company is or may be obligated to issue equity securities:
l Convertible loan agreement by and among VectivBio Holding AG, VectivBio US, Inc., GlyPHarma Therapeutic Inc./GlyPharma Thérapeutique Inc., VectivBio Comet AG, Comet Therapeutics, Inc. and Kreos Capital VI (UK) Limited, dated as of March 26, 2022; and
l Warrant agreement by and between VectivBio Holding AG and Kreos Capital VI (Expert Fund) LP, dated as of March 26, 2022.
SCHEDULE 3(OO)
None
