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Other Dividends. Liquidation Preference. Liquidation Event. Partial Liquidation. Voluntary Conversion Right. Automatic Conversion. Anti-Dilution Adjustment. Fractional Shares. Anti-dilution Provision. Conversion Rate. Anti-Dilution Event. Registration Rights.
Registration Rights Agreement. Registration Expenses; Indemnification. Transfer of Registration Rights. Market Standoff Agreement. Mandatory Redemption. Preferred A Shares. Preferred B-1 Shares. Statutory Subscription Rights Bezugsrecht.
Transfer of Preference Rights. Board of Directors Vorstand. Shareholder Rights. This Shareholders Agreement the Shareholders Agreement or the Agreement is entered into on the date set out on the title page hereof by and among:. In this Agreement, the following words and expressions shall have the meanings set opposite them below, being understood that each defined term used in this Agreement shall have a comparable meaning when used in its plural or singular form except where otherwise explicitly stated:.
The Company is, and the Parties shall procure that the Company shall remain, for the time being and unless otherwise agreed upon in accordance with this Agreement, a stock company established and existing under the laws of Austria. The Company is the sole shareholder of Company US subsidiary, and does not hold shares or other interests in any other legal entity.
The rights and obligations of the Parties with respect to the Company as set out herein shall be reflected as appropriate in the articles of association of the Company. Furthermore, , one hundred thirty five thousand four hundred fifty additional shares could be issued out of conditional capital bedingtes Kapital to lenders under the existing convertible loan agreements between the Company and certain of its shareholders or their Affiliates in the event of a conversion of the claims for repayment of the loans granted to the Company pursuant to the terms and conditions of such convertible loan agreements.
All Shares shall carry equal rights, except as provided for in this Shareholders Agreement For the purposes of this Shareholders Agreement , the Shares held by the Initial Investors initially before the implementation of the Subscription Agreement 2 and the Sandoz Preferred A Shares, subject to the terms and conditions of this Shareholders. The Shares issued in the course of the First Tranche pursuant to the Subscription Agreement 3 shall be referred to as Preferred B-1 Shares ; and the Shares issued in the course of the Second Tranche, if any, pursuant to the Subscription Agreement 3 shall be referred as Preferred B-2 Shares.
To the extent permitted by Austrian corporate law, the holders of Common Shares in such case shall waive the respective part of their voting right in order to provide the holders of Preferred Shares with the amount of additional votes required pursuant to this provision. If a Preferred Dividend Event takes place during a business year, the Preferred Dividend for the respective business year shall be calculated pro rata based on the actual days elapsed in such business year until the date of the Preferred Dividend Event.
All Shareholders hereby covenant to vote in favor of, consent to or otherwise approve the payment of any and all declared but unpaid Preferred Dividends, if any, upon any Preferred Dividend Event, as may be required under Austrian or other applicable law.
The subscription for that number of additional Shares calculated by dividing the value of all declared but unpaid Preferred Dividends, if any, by the Fair Market Value per Preferred B Share at the time of any Preferred Dividend Event, which such additional Shares shall be distributed pro rata among the holders of Preferred B Shares on an as-converted to Common Shares basis.
Such additional Shares shall be furnished with all rights of the Preferred B. Shares, if any at the time of such Preferred Dividend Event. For the avoidance of doubt, the amount of declared but unpaid Preferred Dividends shall be reduced by an amount corresponding to the value of the new Preferred B Shares issued. The Parties agree to vote in favor of any such share capital increase, whether pursuant to the Austrian Act of Capital Adjustment or by way of an ordinary share capital increase, and to waive their subscription right, to the extent they are not permitted or entitled pursuant to this Agreement to subscribe to such new Preferred B Shares.
For the avoidance of doubt, the preferred dividend rights of the Preferred A Shareholders provided for in any of the Existing Agreements are herewith cancelled and terminated and, hence, any entitlement of the Preferred A Shareholders to any dividend accrued is permanently extinguished effective immediately. Upon occurrence of a Liquidation Event, the proceeds of such Liquidation Event available for distribution shall be distributed as follows the Liquidation Preference Rights :.
After such payment of the Liquidation Preference Amount has been made pursuant to section 4. Common Shares. Notwithstanding the foregoing, with respect to the aggregate portion of proceeds or assets of the Company distributable to the holders of Preferred A Shares and the holders of Common Shares, such proceeds or assets of the Company shall be distributed as follows:. Each holder of Preferred Shares shall be entitled at any time to waive its preferential rights set out in this Agreement the Preference Rights so that such holder of Preferred Shares shall thereafter be furnished with the same shareholder rights as the holders of Common Shares a Voluntary Conversion.
A Voluntary Conversion may be triggered with respect to all Preferred Shares held by such Investor or any part thereof, provided, however, that a Voluntary Conversion may only be triggered with respect to whole shares of Preferred Shares. After a Voluntary Conversion the respective Preferred Shares for which the Voluntary Conversion has been triggered shall henceforth be deemed Common Shares and the parts of the respective Preferred Shares for which the Voluntary Conversion has not been triggered, if any, shall continue to be deemed Preferred Shares for the purposes of this Agreement.
Any such additional shareholding to which the holders of Preferred Shares are entitled shall be satisfied, to the extent possible and permitted by law, by issuing new Common Shares according to the Austrian Act of Capital Adjustment or otherwise by issuing new Common Shares by way of an ordinary. All Common Shares including fractions thereof issuable upon conversion of the Preferred Shares of a holder shall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional share.
If, after such aggregation, a Conversion would result in the issuance of any fractional Common Share, the Company shall, in lieu of issuing any fractional share, round down the number of Shares issued to such holder to the next full single digit, without paying any compensation. Such conversion eliminates any and all Preference Rights provided for in this Shareholders Agreement and attributed to the Preferred B-1 Shares so converted.
Furthermore, each B-2 Non-Funding Investor shall also lose its right to designate a member of the Supervisory Board pursuant to section 5. Automatic Conversions taking place simultaneously or after such Anti-Dilution Event shall be reduced, concurrently with such issue of New Securities, to the New Security Consideration; and.
CSO means the nominal capital amount in Euro represented by Shares, warrants, share equivalents or convertible securities of whatever nature or rights to purchase Shares, warrants, share equivalents or convertible securities of whatever nature outstanding immediately prior to such Anti-Dilution Event;.
NS means the nominal capital amount in Euro represented by the New Securities that were actually issued in the course of the Anti-Dilution Event. If at any time or from time to time on or after the date that the first Preferred B Share is issued, the Company effects a subdivision or combination of its registered share capital, the then-applicable conversion prices for the Preferred Shares will be proportionately decreased or increased, respectively.
Any adjustment to the applicable conversion price for the Preferred Shares will also be subject to proportional adjustments for share dividends, recapitalizations or similar corporate events, if any. Notwithstanding the foregoing, issuance of the following securities by the Company will not be considered an Anti-Dilution Event:.
The Company will use its best efforts to effect such registration as soon as reasonably possible following receipt of such demand. All Investors and Sandoz will be entitled to demand registration, piggyback registration and short form registration, both in the. The Registration Rights Agreement shall provide that the Company will pay any fees and expenses related to the deposit of Common Shares for the issuance of American depositary receipts representing Common Shares in connection with any sale or distribution of such Common Shares not involving a registration.
Each Investor hereby agrees that such Investor will not sell, dispose of, transfer, make any short sale of, grant any option for the purchase of, or enter into any hedging or similar transaction with the same economic effect as a sale, any Shares or other securities of the Company held by such Investor other than those included in.
Redemption of the Preferred B Shares shall take place in preference to the holders of Preferred A Shares and in accordance with Austrian law and in particular the Act. If the cash amount that the Company would be allowed to pay under the Act upon such redemption in respect of all Preferred B Shares and Preferred A Shares falls short of the cash amount required to pay the full redemption price according to the above provisions for:. Except as otherwise provided for in this Agreement, the holders of Preferred Shares shall have the right to maintain their percentage ownership in the Company calculated on an as-converted to Common Shares basis by subscribing to a pro rata portion of any issuance of New Securities by the Company.
Furthermore, such right of first refusal will not apply to, and will terminate upon a Qualified Public Offering. The shareholders may waive or exclude their subscription rights for the issuance of any New Securities. Any New Securities not subscribed for by an eligible Investor shall be reallocated among the other eligible Investors. In case of a Permitted Transfer of Preferred Shares to any person, such person shall receive such Preferred Shares with the same rights and obligations as set out herein.
To the extent required under Austrian law, any changes to the articles of association of the Company shall be agreed by the Parties as shareholders of the Company in order to furnish such person with the respective rights set out herein for holders of Preferred Shares. The members of the Board of Directors Vorstand shall be appointed and dismissed by the Supervisory Board Aufsichtsrat in accordance with the applicable provisions of the Austrian Stock Corporation Act.
The quorum for a meeting of the Supervisory Board Aufsichtsrat shall be a majority of the Supervisory Board members. One of the members elected by the holders of the Preferred B Shares shall be appointed chairman of the Supervisory Board Aufsichtsrat. To the extent there are subcommittees of the Supervisory Board, Vivo shall have the right to designate one of the members of any compensation subcommittee and any corporate governance committee.
Vivo shall be entitled to appoint one person as an observer or equivalent attendant on the Supervisory Board meetings. Such observer shall be entitled to receive notice of, attend and participate in discussions at all meetings of the Supervisory Board Aufsichtsrat but shall not be allowed to vote or count in the quorum at meetings of the Supervisory Board Aufsichtsrat. Such observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided.
The Company reserves the right to withhold any information and to exclude such observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel. In the event a majority of the Supervisory Board agrees that any member of the Supervisory Board the Conflicted Supervisory Board Member has a conflict of interest the Conflict Issue relating to the business of the Company such Conflicted Supervisory Board Member shall be excluded from voting on the Conflict Issue.
Except for Permitted Transfers, the Shareholders shall not. No transfer, including but not limited to the Permitted Transfers, shall be permitted if such Admission Agreement is not timely delivered to the Company. If, at any time prior to a Qualified Public Offering, a holder of Shares wishes to sell or otherwise transfer such Shareholder for the purposes of such transaction hereinafter being referred to as Seller its Shares to another Shareholder or a third party a Proposed Purchaser , such transfer Sale shall be made pursuant to the following procedures:.
Refusal of a holder of Preferred Shares to exercise his Right of First Refusal for such additional portion of the Shares To Be Sold results also in a refusal of the entire Right of First Refusal with respect to such Sale, including with respect to the portion of the Shares To Be Sold in the first offer round.
The time limitation set forth. Irrespective of whether the Right of First Refusal expands also to the holders of Common Shares, the Company shall simultaneously with sending such document to the holders of Preferred Shares forward the Offer Notice also to all holders of Common Shares for information purposes.
If a Sale of Shares occurs in full or in part for other consideration than cash, the Parties agree that the price for the respective Shares To Be Sold shall be the market value of such other consideration plus the consideration in cash, if any.
The valuation of such independent auditor shall be binding for the Seller and the holders of Preferred Shares. The costs of such independent auditor shall be borne by the Seller and the holders of Preferred Shares equally, whereby the holders of Preferred Shares amongst themselves bear such costs on a pro rata basis.
The Company shall immediately thereafter forward such notice to all other Shareholders. Within 14 fourteen days of the receipt of such notice or any later date set forth in such notice, all Shareholders shall sell all their Shares to the respective proposed purchaser according to the terms of the respective offer.
Pro rata. The following provisions shall apply to each Tag-Along Sale:. As long as a Qualified Public Offering has not been effected, the Company as well as any of its subsidiaries shall deliver to each Shareholder the following information:.
Each Party hereto undertakes for itself and shall cause its Affiliates, if any, to keep confidential the following information regarding the business operations of the Company or any of its subsidiaries and to prevent the passing on of this confidential information to third parties:.
The Parties shall endeavor to give access to said confidential information only to such persons who are either bound by professional duty of confidentiality or who. The Party shall also require such persons to undertake to keep the confidential information secret. The obligations under this Section shall continue in force even after a Party shall have ceased to be a party to this Agreement or a Shareholder of the Company.
For the purpose of this Section the following information shall not be considered to be confidential. Nothing herein shall be construed as preventing a Party from disclosing confidential information where it is under a duty, under applicable law, regulation, court or administrative decision to make such disclosure.
The Company hereby waives for itself and any of its subsidiaries any right to confidentiality with respect to matters which are disclosed by members of the Board of Directors Vorstand or of the Supervisory Board Aufsichtsrat of the respective company to the Party having nominated them.
Accession Agreement. The Parties agree that, following execution of such Accession Agreement between the new shareholder s and the Company represented by the managing director s , to be approved by the Supervisory Board [ Aufsichtsrat ] , the Parties to this Agreement and the new shareholder s shall equally be bound by the provisions of this Agreement and the new shareholder s shall become Parties to this Agreement. Upon request by a majority of the Supervisory Board [ Aufsichtsrat ] and to the extent permissible under Austrian law, the Company agrees to implement a management plan or equivalent program to incentivize management in connection with a potential sale of the Company.
The Company will make due inquiry with its U. Holder of such status or risk, as the case may be. The Company will, as soon as reasonably. Holder without first providing notice of such withholding and a reasonable opportunity for such U. Holder to obtain reduced rates of withholding or other available exemptions, if any, to the extent such notice and reasonable opportunity for the U. Holder sells or otherwise disposes of all of its Shares.
For the avoidance of doubt, the Company shall be required to make the payments set forth in sections The Company shall, and shall ensure that any subsidiaries controlled by it, if any, and each of their officers, directors, employees and agents, comply with the U. The Company shall establish and maintain an anti-corruption program that is satisfactory to the Supervisory Board [ Aufsichtsrat ], including the Preferred B Members, pursuant to which the Company will implement and maintain appropriate systems, safeguards, policies, procedures and training sufficient to provide reasonable assurances that the Company, its directors, officers, employees and agents act in compliance with Anti-Corruption Laws.
Upon the consummation of a Qualified Public Offering first day of listing , this Agreement shall automatically terminate except for those terms that survive as specifically set forth herein. This Agreement shall be governed by, and interpreted in accordance with, Austrian law, excluding its conflict of laws rules. All disputes arising out of this Agreement or related to its violation, termination or nullity, shall be finally settled under the ICC Rules of Arbitration of the International Chamber of Commerce in London the Rules by three arbitrators appointed in accordance with these Rules.
The place of arbitration shall be London. The language of arbitration shall be English. The Parties are nevertheless entitled to submit documents in the German language with a translation if it is the original language of the document. For the purpose of the nomination of arbitrators, there is deemed to be only one claimant party and one defendant party, regardless of whether multiple parties appear.
In the event of conflicting legal acts by joint parties, the provisions of the Austrian Code of Civil Procedure concerning the joinder of parties shall be applicable. This arbitration section shall also be applicable for disputes between Parties hereto and the legal successors of other Parties or between the legal successors of all Parties hereto. This arbitration section shall furthermore be applicable for disputes regarding amendments or additional agreements to this contract.
All notices or other communications given by one Party to any other Party under, or in connection with, this Agreement shall be in writing. It shall be served by sending it by fax to the respective number set out below, or by delivering it by hand, or by sending it by registered mail to the respective address set out below and in each case marked for the attention of the relevant Party.
If to Sandoz, to:. Biochemiestrasse Chris Mader, LL. If to Ascher, to:. If to Novak, to:. If to Phase4, to:. W1J 8LQ. United Kingdom. If to Wellcome Trust, to:. London NW1 2BE. If to HBM Healthcare, by courier service or facsimile only, to:.
CH Zug. Ulrich Geilinger. If to Global 1, to:. Royal Avenue. Peter Port. Guernsey GY1 2HL. If to Global 2, to:. Tal D- Munich. If to Novartis Bioventures, to:. Novartis Bioventures Ltd. Hamilton HM A Vienna. If to Vivo, to:. Suite Palo Alto, CA United States. With a copy which shall not constitute notice to Vivo to:. Cooley LLP. Attn: Gordon Empey. Seattle, WA If to OrbiMed, to:. New York, NY If to Omega, to:. Boston MA If to EcoR1, to:.
San Francisco, CA If to Boxer, to:. Solana Beach, CA If to Guernsey Trust, to. Cloudwood Trust. PO Box Martello Court. Admiral Park. Guernsey GY1 3HB. If to Kreos, to:. London, W1S 3AN. If to the Company, to:. Leberstrasse In all cases, with a copy to:. Freshfields Bruckhaus Deringer. Seilergasse The headings and sub-headings of the sections contained herein are for convenience and reference purposes only and shall not affect the meaning or construction of any of the provisions hereof.
Should any provision of this Agreement be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provision shall, to the extent permitted by law, be deemed replaced by such valid, effective and enforceable provision as comes closest to the economic intent and purpose of such invalid, ineffective or unenforceable provision.
Except as set forth in the Subscription Agreement 3, each Party shall bear its own costs and expenses in connection with the preparation, execution and consummation of this Agreement, including, without limitation, any and all professional fees and charges of its advisors. Notwithstanding the foregoing, Phase4 may assign, in whole or in part, its rights and delegate its obligations including, without limitation, the rights to purchase any or.
The management of the Company herewith declares that the Company matches such criteria as of the correct and valid registration of the Capital Increase. KfW is entitled, by way of an agreement in favor of third parties echter Vertrag zugunsten Dritter to audit the utilization of said financial means pursuant to their purpose.
To this end, KfW may inspect the business accounts and books of the Company and to review the assets of the Company. KfW is also entitled to have an auditor perform such audit. The Company shall, in addition, and for the purpose of forwarding such information to KfW, immediately inform the KfW-refinanced Preferred Shareholders of all material events and circumstances regarding the Company, in particular:. Each of the other Parties acknowledges and agrees that The Wellcome Trust Limited is entering into this Agreement solely in its capacity as the trustee for the time being of the Wellcome Trust and it is hereby agreed and declared that notwithstanding anything to the contrary contained or implied in this Agreement:.
Obligations and liabilities expressed to be assumed together by more than one shareholder under this Agreement shall be assumed on a several and not joint basis. The failure of one shareholder to perform any obligation hereunder shall in no circumstances increase the liability or obligations of any of the other shareholders. Nothing in this Agreement shall constitute a representation or warranty, on the part of one shareholder, that any other shareholder will comply with its obligations under this Agreement or that any such shareholder will take any steps to procure such compliance by any other shareholder.
Phase 4 Partners Limited as Manager for. Carl Gordon. Richard Lim. Schedule 3 a i. The Wellcome Trust Ltd. Arax Arax eins. Nabriva treasury shares. Schedule 3 a ii. Schedule 3 b. The company shall be established for an unlimited period of time. The financial year of the company shall be the calendar year. The conditional capital increase is used to service the stock options granted to the employees, executive employees or members of the management board and supervisory board of the company or external advisors of the company.
The conditional capital increase shall be effected only to the extent that the beneficiaries exercise their stock options. Page 2. The supervisory board is authorized to resolve on amendments of the articles of association which result from the issuance of shares out of conditional capital.
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