Exhibit 10.1

 

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[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

______________________________________________________________

 

CAF®09b Supply, Patent, Know How & Trademark Licence Agreement

 

______________________________________________________________ 

 

DATED 30 NOVEMBER 2020

 

between

 

(1)    Statens Serum Institut

 

- and -

 

(2)    Evaxion Biotech A/S

 

 

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TABLE OF CONTENTS

 

1.   DEFINITIONS	4
2.   GRANT OF LICENCE	12
3.   SUBLICENSING & SUB-CONTRACTING	13
4.   PROVISION OF KNOW HOW	15
5.   TECHNOLOGY TRANSFER	15
6.   PROVISION OF LICENSED ADJUVANT	16
7.   PAYMENTS	17
8.   PAYMENT TERMS	21
9.   RECORDS AND INSPECTIONS	22
10. REGULATORY	24
11. NO IMPLIED LICENCES	25
12. MANAGEMENT OF PATENT RIGHTS	25
13. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS	25
14. CONFIDENTIALITY	26
15. WARRANTIES & REPRESENTATIONS	28
16. LIMITATION OF LIABILITY	30
17. TERM AND TERMINATION	31
18. CONSEQUENCES OF EXPIRY OR TERMINATION	32
19. GENERAL	34
SCHEDULE 1: LICENSED PATENTS	40
SCHEDULE 2: LICENSED ADJUVANT & LICENSED KNOW HOW	41
SCHEDULE 3: PROGRESS REPORT	42
SCHEDULE 4: SUMMARY TEMPLATE	42
SCHEDULE 5: EXTENDED LICENSE TRIPARTITE CDA	43
SCHEDULE 6: CLINICAL TRIAL SUPPLY AGREEMENT	44

 

 

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THIS “CAF®09b SUPPLY, PATENT, KNOW HOW & TRADEMARK LICENSE AGREEMENT” (this “Agreement”) is made on the 30^th of November, 2020 (the “Effective Date”)

 

BETWEEN:

 

(1)

Statens Serum Institut, CVR No. DK 4683 7428, a public institute under the Danish Ministry for Health, whose registered office is at Artillerivej 5, DK-2300 Copenhagen S, Denmark (“SSI”); and

 

(2)

Evaxion Biotech A/S, CVR No. DK 3176 2863, a company incorporated under the laws of Denmark with its registered office at Bredgade 34E, DK-1260 Copenhagen K, Denmark (“Evaxion”).

 

Each of SSI and Evaxion is sometimes referred to individually herein as a “Party” and collectively as the “Parties”.

 

RECITALS

 

(A)

SSI, being an independent institute under the auspices of the Ministry of Health concerned with strengthening human health through disease control and research, has developed a number of proprietary liposomal adjuvant formulations, including the Licensed Adjuvant, as defined below;

 

(B)

Evaxion is a privately owned biotechnology company that has developed a proprietary technology platform, PIONEER, for the identification of antigens and neo-epitopes for vaccines using artificial intelligence, including the identification of DNA sequences encoding mutant tumor neo-antigens, which sequences may be selected on a patient-by-patient basis (personalized medicine);

 

(C)

SSI and Evaxion are, together with Third Parties, as defined below, collaborating on developing an anti-cancer vaccination strategy comprising design of a Vaccine, as defined below, by application of Evaxion’s proprietary PIONEER platform, which strategy has been developed with the support of Innovations Fund Denmark under the NeoPepVac project, File# 7051-00010A, (the “Project”);

 

(D)

Based on the Parties’ background and Project developed foreground technology, SSI is now desirous to accommodate Evaxion’s request for a license enabling further development and commercialization by Evaxion and/or Third Parties to be contracted by Evaxion, of one or more anti-cancer Vaccines;

 

(E)

SSI is currently having Licensed Adjuvant manufactured for development purposes by the Interim Supplier, as defined below, which SSI intends to cause to carry out, acting for and on behalf of and with SSI, a technology transfer of the Licensed Adjuvant manufacturing processes to a Commercial Supplier, as defined below;

 

(F)

SSI is desirous to contract the Commercial Supplier to scale up and transform the Interim Supplier’s current small scale Licensed Adjuvant manufacturing processes into a commercial scale manufacturing process enabling manufacturing of Licensed Adjuvant in commercial quantities on basis of Know How Controlled by SSI, enabling a single source Licensed Adjuvant supply for commercial use directly to Third Parties whereby SSI will be removed from the Licensed Adjuvant supply chain (the “Preferred Model”), although remain being Know How, as defined below, licensor vis-à-vis the Commercial Supplier and Application Know How, as defined below, licensor vis-à-vis Evaxion;

 

 

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(G)

The Parties acknowledge that SSI’s contracting of a Commercial Supplier, including the associated Licensed Adjuvant manufacturing technology transfer from SSI to the Commercial Supplier, may be time consuming, implying that the Parties have agreed for SSI to supply to Evaxion a certain stock of Licensed Adjuvant manufactured or to be manufactured by the Interim Supplier for Evaxion Vaccine development use; and,

 

(H)

Were SSI to fail implementing the Preferred Model, i.e. to fail closing an agreement with a Commercial Supplier as per Recital F above, and only in case of such failure, SSI shall, to protect Evaxion’s and its Sub-licensees’ interest in receiving the required amounts of Licensed Adjuvant also beyond the development phase, irrespectively of such failure, grant a license, including Licensed Adjuvant technology transfer assistance, to Evaxion and its Sub-licensees, (the “Default Model”), enabling Evaxion to appoint a Licensed Adjuvant manufacturing CMO in lieu of the Commercial Supplier never appointed by SSI, which replacement CMO may then cover Evaxion’s and its Sub-licensees Licensed Adjuvant needs by carrying out manufacturing activities on basis of Know How vested in and Controlled by SSI and in turn licensed to Evaxion on a non-exclusive basis.

 

THE PARTIES AGREE AS FOLLOWS:

 

1.

DEFINITIONS

 

In this Agreement the following words and expressions have the following meanings:

 

1.1

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, for so long as such Control exists;

 

1.2

“Application Know How” means non-patented information vested in or Controlled by SSI on the application of Licensed Adjuvant and medicinal products to be administrated together or in combination with Licensed Adjuvant, as such Application Know How has been set out in Schedule 2, Part B, hereto or as amended by SSI during the Term hereof;

 

1.3

"Business Day" means any day other than a Saturday or Sunday on which banking institutions in the Kingdom of Denmark are open for business;

 

1.4

“Calendar Year” means a period of four consecutive Quarters ending on 31 December;

 

1.5

“Combination Product” shall mean a Vaccine sold or co-formulated with one or more other active pharmaceutical ingredients for prophylactic and/or therapeutic use in the Licensed Field, which other active pharmaceutical ingredients do not comprise a Vaccine;

 

 

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1.6

“Commercial Supplier” means a single SSI contracted Third Party Licensed Adjuvant manufacturer taking over the manufacturing of Licensed Adjuvant from the Interim Supplier;

 

1.7

“Control” means:

 

(i)

in respect of Affiliates: (a) in the case of companies and corporations “Control” and “Controlled” means beneficial ownership of more than fifty percent of the voting stock, shares, interest, or equity in an entity; or (b) in the case of any other legal entity, “Control” and “Controlled” shall exist through the ability to directly or indirectly control the management and/or business of the legal entity; and

 

(ii)

in respect of intellectual property and Know How whether owned by or licensed to an entity, the possession of the legal right and ability to grant the respective licences or sub-licences as provided herein without violating the terms of any agreement or other arrangement with any Third Party. For clarity, no Party (or Affiliate of a Party, as applicable) shall be deemed to Control any Know How or intellectual property by virtue of the license grants to that Party from or by the other Party as set forth in this Agreement;

 

1.8

“Confidential Information” has the meaning set forth in Clause 14.1;

 

1.9

“Default Model” means extension of the License as per Clause 2.2 below, whereby Evaxion – in addition to the License - is being granted the right to manufacture or, via a sub-contractor, have manufactured Licensed Adjuvant;

 

1.10

“Disclosing Party” has the meaning set forth in Clause 14.1;

 

1.11

“Exclusive” means, with respect to exploitation of the License in the Territory, that only Evaxion, its Affiliates and its Sub-licensees, to the exclusion of SSI and its Affiliates, have the right to exploit and commercialize Vaccines for prophylactic and/or therapeutic use in the Licensed Field;

 

1.12

“Extended License” means the License, as defined below, when extended to include the right for Evaxion or its sub-contractor to manufacture or have manufactured Licensed Adjuvant as per Clause 2.2, were the Default Model to be implemented;

 

1.13

“First Commercial Sale” means the first sale, transfer or disposition for value of a Vaccine in the EU or the USA of a Vaccine having received Product Approval in and for such jurisdiction, provided, that, the following shall not constitute a First Commercial Sale:

 

a)

any sale by Evaxion to an Evaxion Affiliate;

 

b)

any use of a Vaccine in clinical trials, pre-clinical studies or other research or development activities, or;

 

c)

the disposal or transfer of Vaccine for a bona fide charitable purpose, including compassionate use and/or “named patient sales”;

 

 

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1.14

“Interim Supplier” means a limited number of specialized work-for-hire SSI engaged sub-contractors currently manufacturing Licensed Adjuvant in such quantities as SSI may require for development purposes, each of which sub-contractors are contributing to the Licensed Adjuvant manufacturing process by carrying out individual manufacturing steps for an on behalf of SSI, which steps SSI intends to transfer to and consolidate in the Commercial Supplier, as defined above;

 

1.15

“Know How” means 1) Application Know How, and 2) Manufacturing Know How;

 

1.16

“Licence” means the licence granted under Clause 2.1;

 

1.17

“Licensed Adjuvant” means SSI’s proprietary cationic adjuvant formulation referred to as CAF®09b and as described in Schedule 2, Part A;

 

1.18

“Licensed Field” means the prophylactic and/or therapeutic treatment of any cancer in humans;

 

1.19

“Manufacturing Know How” means non-patented information vested in or Controlled by SSI and relating to the manufacturing of Licensed Adjuvant. In case of implementation of the Default Model, the Manufacturing Know How required for implementation of the Default Model shall be set out in Schedule 2, Part C;

 

1.20

“Net Sales” means, with respect to a Vaccine for any period, the total amount billed or invoiced on sales of such Vaccine or received (only to be included in the calculation once, if both invoiced and received, irrespective of whether invoiced and received within the same period or in two (2) separate periods) during such period by Evaxion or its Affiliates to Third Parties in the Territory, less (without duplication) the following normal and customary deductions to the extent they are effectively paid or incurred or allowed and included on the invoice price:

 

	(i)	trade, cash, and quantity discounts applied within the ordinary course of business which are actually granted or accrued (and subsequently booked);
	(ii)	price reductions or rebates, retroactive or otherwise, imposed by, negotiated with, or otherwise paid to governmental authorities;
	(iii)	taxes on sales (such as sales, value added, or use taxes) to the extent added to the sale price and set forth separately as such in the total amount invoiced;
	(iv)	credits, allowances or refunds granted for billing errors, damaged, outdated, returned, rejected or recalled Vaccine;
	(v)	insurance, customs charges, freight, shipping and other transportation costs incurred in shipping Vaccine, to the extent not reimbursed by a Third Party;

 

 

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Net Sales shall not include the value of Vaccine transferred or disposed for charitable, pre-clinical, clinical, regulatory, or governmental purposes (other than sales that are paid or reimbursed by government payors), unless Evaxion or its Affiliates receive a consideration for such transfer or disposition, in which case such consideration shall be included subject to the principles set out in this definiton. Net Sales shall not include sales between Evaxion and its Affiliates.

 

For the purpose of calculating Net Sales of Vaccines forming part of any Combination Products, where the Vaccine is sold separately in the same country as the Combination Product, the amount billed, invoiced or received for such Vaccine forming part of a Combination Product shall be calculated by multiplying the amount billed or invoiced for the Combination Product with the fraction A/(A+B), where A is the selling price in such country of a Vaccine, when sold separately for the same dosage as contained in the Combination Product, and B is the selling price in such country of any other active pharmaceutical ingredients in the Combination Product, when sold separately for the same dosage (or form) as contained in the Combination Product. All selling prices of the elements of such Combination Product shall be calculated as the average selling price of the said elements during the applicable accounting period for which the Net Sales are being calculated. In the event that, in any country, no separate sale of either such above-designated Vaccine (sold separately) or any one or more of the active pharmaceutical ingredients included in such Combination Product are made during the accounting period in which the sale was made, or if the net selling price for an active ingredient cannot be determined for an accounting period, Net Sales allocable to the Vaccine in a Combination Product in each such country shall be determined by mutual agreement reached in good faith by the Parties prior to the end of the accounting period in question based on an equitable method of determining same that takes into account, on a country-by-country basis, all relevant factors (including variations in potency, the relative contribution of each active ingredient in the combination, and relative value to the end user of each active ingredient).

 

If non-monetary consideration is received by Evaxion or its Affiliates for any Vaccine in a given country, Net Sales will be calculated based on the average price charged for such Vaccine in such country, as applicable, during the preceding royalty period, or in the absence of such sales, transfers or other distributions, the fair market value of the Vaccine in such country, as applicable, as determined by the Parties in good faith. If the Parties are unable to reach such an agreement, the Parties shall refer such matter to a jointly selected Third Party with expertise in the pricing of pharmaceutical products that is not, and has not in the past five (5) years been, an employee, consultant, legal advisor, officer, director or stockholder of, and does not have any conflict of interest with respect to, either Party for resolution.

 

Subject to the above, Net Sales shall be calculated in accordance with GAAP or IFRS accounting standards applied by such party;

 

 

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1.21

“Non-Project Vaccine” means a Vaccine targeting patients with other cancers than melanoma, non-small-cell lung carcinoma, and bladder cancer.

 

1.22

“Option to License Agreement” means an agreement between Evaxion and a Third Party pursuant to which the Third Party is granted an option to acquire a Sublicense Agreement upon the fulfilment of one or more specified conditions, such as, but not limited to, the issue of an option exercise notice.

 

1.23

“Out-of-Pocket Costs” means expenditures actually defrayed by a Party by payment to a Third Party (including authorities) for supply of products, rendering of services, filing, prosecution, and maintenance of the Patent Rights in the Territory, or grant of authorisations by such Third Party, less any subsequent reimbursements received by the payor;

 

1.24

“Patent Rights” means the Licensed Adjuvant related patents listed in Schedule 1 as well as derived applications, and patents issued on the basis thereof, and any foreign counterparts thereof Controlled by SSI or its Affiliates, including all provisional applications, divisions, renewals, continuations, continuations-in-part, extensions, reissues, re-examinations, substitutions, confirmations, registrations, revalidations, and additions of or to them, as well as any patent term extension, or like form of protection, whether on file with the appropriate governmental agencies as of the Effective Date or at any time during the term of this Agreement, all provided that such positions stipulate Licensed Adjuvant related claim(s) not going beyond the claims made in the Patent Rights listed in Schedule 1;

 

1.25

“Personnel” means officers, employees, consultants, agents, representatives, contractors and advisers acting for and on behalf a Party;

 

1.26

“Phase 1 Clinical Trial” means a clinical trial of a Vaccine candidate in man that provides for the first use in man of such product with the primary purpose of determining safety and/or clinical pharmacology of such Vaccine candidate, to the extent such trial is / trials are being executed as per a protocol classifying the trial as a Phase 1 trial;

 

1.27

“Phase 2 Clinical Trial” means a study of Vaccine candidate properties in patients in a particular indication designed to:

 

(i)

demonstrate clinical efficacy and validity of the therapeutic concept of a Vaccine; and/or,

 

(ii)

identify the safe and effective dose range of the product for the particular indication; and/or,

 

(iii)

support further investigation of the safety and efficacy of the product in the particular indication in a Phase 3 Clinical Trial;

 

to the extent such trial is/trials are being executed as per a protocol classifying the trial as a Phase 2 trial, incl. 2A and 2B trials;

 

 

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1.28

“Phase 3 Clinical Trial” means a study of Vaccine candidate properties in patients in a particular indication designed to:

 

(i)

establish that the License Vaccine candidate is safe and efficacious for its intended use; and/or,

 

(ii)

define warnings, precautions, and adverse reactions that are associated with the use of the Vaccine candidate in the dosage range to be prescribed; and

 

(iii)

support Product Approvals for such Vaccine;

 

to the extent such trial is trials are being executed as per a protocol classifying the trial as a Phase 3 trial;

 

1.29

”Preferred Model” shall mean a contract complex closed among the Parties and a Commercial Supplier, and comprising the following elements:

 

(i)

a license agreement between SSI and a Commercial Supplier being granted the right to manufacture the Licensed Adjuvant on basis of the Patent Rights and Manufacturing Know How;

 

(ii)

a license agreement between SSI and a Commercial Supplier being granted a Trademark license authorising - to the exclusion of SSI and its Affiliates - the Commercial Supplier to exploit and commercialize the Licensed Adjuvant under the Trademark within a field which at least comprises the Licensed Field;

 

(iii)

this Agreement as entered into between SSI and Evaxion, with Evaxion being granted the License;

 

(iv)

a supply agreement between the Commercial Supplier acting as SSI’s sub-contractor for licensee supply purposes only and Evaxion, as per which contract the Commercial Supplier, in exchange for a payment to be made by Evaxion or its Sub-licensees, undertakes to supply Licensed Adjuvant to Evaxion or Sub-licensees designated by Evaxion;

 

1.30

“Product Approval” means, in relation to any particular jurisdiction, any and all approvals (excluding price and reimbursement approvals), licences, registrations, or authorisations of any country, federal, supranational, state, or local regulatory agency, department, bureau, or other government entity that are necessary for the manufacture, use, storage, import, transport, or sale of a Vaccine in such jurisdiction; provided however that Product Approval shall also mean approval by the competent authority in a given jurisdiction for a Vaccine to be sold without first being approved, e.g. for emergency stocking, defence or bio terror preparedness purposes, and similar, and irrespective of the clinical development stage reached for such Vaccine;

 

1.31

“Project Vaccine” means a Vaccine, the development of which is initiated under the Project, targeting patients with melanoma, non-small-cell lung carcinoma, or bladder cancer;

 

1.32

“Quarter” means the respective periods of three consecutive calendar months ending on March 31, June 30, September 30 and December 31, except that the first Quarter of the Term shall commence on the Effective Date and end on the day immediately prior to the first to occur of March 31, June 30, September 30 or December 31 after the Effective Date and the last Quarter shall end on the last day of the Term;

 

  

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1.33

“Receiving Party” has the meaning set forth in Clause 14.1;

 

1.34

“Remaining Payment” has the meaning set forth in Clause 7.5(e);

 

1.35

“SSI Licensee” has the meaning set forth in Clause 7.5(d);

 

1.36

“Sub-licence Agreement” means an agreement between Evaxion and a Third Party that grants to such Third Party the right to develop and/or commercialise a Vaccine within the scope of the License and this Agreement as further specified in Clause 3. For the avoidance of doubt, an Option to License Agreement is not to be considered a Sub-license Agreement, whereas a right to develop and/or commercialise a Vaccine within the scope of the License and this Agreement granted by Evaxion to a Third Party upon the Third Party’s exercise of the option for such right under an Option to License Agreement shall be regarded a Sub-License Agreement, but only from the date of the granting of such right pursuant to the exercise of the option, i.e. not the date of the Option to License Agreement;

 

1.37

“Sub-licence Income” means any and all gross income received by Evaxion or its Affiliates in consideration for (i) the grant of a Sub-licence Agreement, (ii) the grant of an Option to License Agreement, (iii) the exploitation by a Third Party of a Sub-license Agreement, or (iv) the grant of letters of intent and any other non-binding document or arrangement that has as its main object the prospect of the entering into of a Sub-license Agreement or an Option to License Agreement. Irrespective of the foregoing, and the below, funding granted by non-profit or governmental organisations, including foundations such as Innovation Fund Denmark, Vaekstfonden, etc., and which do not request any Vaccine, other than for non-commercial use, or a Sub-license Agreement as a condition for the grant of funding, shall not be considered Sub-license Income. Sub-licence Income includes, but is not limited to, income received from a Sub-licensee under a Sub-license Agreement or a Third Party under an Option to License Agreement in the form of upfront payments, milestone payments and royalty payments, and also includes equity, or other forms of payment received in lieu of cash. Non-cash assets shall be included in the calculation of Sub-license Income at their market price on the date of receipt and if such market price is not verifiable on the basis of available market information (e.g. the price of shares in a listed company), the Parties shall in good faith discuss and agree to the applicable market price. Notwithstanding the former, payments covering Evaxion’s direct costs incurred for research and development activities carried out by Evaxion on behalf of Sub-licensee in respect of a Vaccine, shall be excluded from the calculation of Sub-license Income as shall payments effectively made by Evaxion and covering Evaxion’s direct non-reimbursable costs incurred for Patent Right prosecution and/or enforcement proceedings undertaken by Evaxion on behalf of Sub-licensee in respect of Patent Righs comprised by the Sub-license Agreement, provided that such costs are solely attributable to maintenance of the Sub-license Income;

 

 

 

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1.38

“Sub-licensee” means any Third Party to whom Evaxion has granted a sub-licence under the Licence to develop and/or commercialize a Vaccine;

 

1.39

“Technology Transfer” means transfer by SSI, its Affiliates or designates to Evaxion of Manufacturing Know How, including such analytical methods and reference standards for Licensed Adjuvant intermediates, Licensed Adjuvant and impurities, and the most recent Licensed Adjuvant batch records accessible from the Interim Supplier, all to the extent that SSI deems such documentation to be reasonably necessary for Evaxion to exploit or have exploited the Manufacturing Know How. Technology Transfer shall further mean transfer by Evaxion or its designated CMO of the aforementioned technology from an Evaxion CMO to a replacement CMO as per Clause 4.2 below;

 

1.40

“Term” means the period from the Effective Date to the termination or expiry of this Agreement;

 

1.41

“Territory” means worldwide;

 

1.42

“Third Party” means a legal or natural person, including governmental authorities, that is not a Party or an Affiliate of a Party to this Agreement;

 

1.43

“Third Party License” has the meaning set forth in Clause 7.5;

 

1.44

“Trademark” means CAF®: European Community Trademark Registration No. 1468370, US Trademark Registration No. 5870687 and CTPO (China) Trademark Registration No. 1468370;

 

1.45

“Vaccine” means a medicinal product for prophylactic and/or therapeutic use in the Licensed Field comprising at least one peptide with an amino acid sequence derived from a tumor neoantigen identified by use of Evaxion’s proprietary neo-antigen identification technology, PIONEER, and administrated together or in combination with Licensed Adjuvant. A Vaccine may comprise either a Project Vaccine or a Non-Project Vaccine;

 

1.46

“Vaccine-by-Vaccine” means that calculation of the Term as per Clause 17.1, ii), expiry, below shall be calculated for each indication that is identified in [****] a obtained. If, for instance, the [****] issued in the authorises prevention and/or treatment of [****] shall be deemed approved, whereas a [****] authorising prevention and/or treatment of [****]. This means that, in principle [****], being granted over time. If a [****] is eventually granted on a [****] designating a given indication, AND rendering a [****], i.e. that the [****] in a manner, which [****], then [****] shall be deemed developed [****] to achieve[****].

 

1.47

“Value Added Tax” has the meaning set forth in Clause 6.3.1;

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

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1.48

In this Agreement:

 

1.48.1        unless the context otherwise requires all references to a particular Clause, paragraph, or Schedule shall be a reference to that Clause,

paragraph, or Schedule, in or to this Agreement as it may be amended from time to time pursuant to this Agreement;

 

1.48.2

the table of contents and headings are inserted for convenience only and shall not affect the interpretation of any provision of this Agreement;

 

1.48.3

unless the contrary intention appears, words importing the masculine gender shall include the feminine and vice versa and words in the singular include the plural and vice versa;

 

1.48.4

unless the contrary intention appears, words denoting persons shall include any individual, partnership, company, corporation, joint venture, trust, association, organisation, or other entity, in each case whether or not having separate legal personality;

 

1.48.5

reference to the words “include” or “including” are to be construed without the limitation to the generality of the preceding words; and

 

1.48.6

reference to any statute or regulation includes any modification or re-enactment of that statute or regulation.

 

2.

GRANT OF LICENCE

 

2.1

Subject to the provisions of this Agreement, SSI hereby grants to Evaxion a royalty-bearing license under the Patent Rights and the Application Know How (the “License”). As per the License, Evaxion and its Affiliates may import, have imported, export, have exported, formulate or have formulated, commercialise, market, use, offer for sale, sell, have sold, supply, or have supplied Vaccines, but not, on a stand alone basis, the Licensed Adjuvant. The License specifically excludes any manufacturing rights to and Trademark rights for the Licensed Adjuvant, unless the License is extended as per Clause 2.2 below, (in which case it is referred to as the “Extended License”), and further excludes any research and development in relation to Licensed Adjuvant other than where such research and development is in connection with and for the purpose of research and development in respect of Vaccine. Evaxion may exploit the License itself and/or by entering into Sub-license Agreements as per Clause 3 below.

 

 

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2.2

Default Model: If SSI fails to close the Preferred Model prior to [****], the License shall be extended to include a right for Evaxion to manufacture or have manufactured the Licensed Adjuvant under the Manufacturing Know How and the Patent Rights, and to import, have imported, export, have exported, formulate or have formulated, commercialise, market, use, offer for sale, sell, have sold, supply, or have supplied Vaccines, but not, on a stand alone basis, the Licensed Adjuvant, under the Trademark (the “Extended License”), reflecting implementation by the Parties of the Default Model. Schedule 2, Part C shall be updated by the Parties without undue delay with any new Manufacturing Know How used to manufacture Licensed Adjuvant and becoming vested in or Controlled by the updating Party during the Term. Without limitation to the rights granted in respect of the License, including the right to sub-license the License in accordance with Clause 3, Evaxion may exploit the Extended License itself, including by sub-contracting the manufacturing of the Licensed Adjuvant to a Contract Manufacturing Organisation (“CMO”).

 

2.3

Exclusivity: The License granted as per Clause 2.1 and, if extended as per Clause 2.2 above, the Extended License, shall – within the scope of the License or the Extended License as the case may be - be Exclusive, provided however that SSI reserves the right to, on behalf of itself and/or any other non-profit research institution, including all Danish public hospitals and clinics, to practice the Patent Rights, the Know How and the Trademark in the Licensed Field for any non-commercial educational and non-commercial research purposes, including sponsored research and collaborations. This reservation of rights includes the right to allow public hospitals and clinics to practice the Patent Rights, the Know How and the Trademark for such purposes. Evaxion, its Affiliates, Sub-licensees and any Third Party deriving rights from Evaxion directly or indirectly will have no right to enforce the Patent Rights, the Know How or the Trademark against any such institution. However, SSI reserves no righs, and is granted no rights, in respect of the PIONEER platform under this Agreement. Any use by SSI of the PIONEER platform will require a separate agreement with Evaxion.

 

2.4

Third Party Beneficiaries / Estoppel: For the avoidance of doubt and except for the rights and licenses expressly granted by SSI under this Clause 2, this Agreement does not grant to Evaxion or any other person any right, title or interest by implication, estoppel or otherwise.

 

3.

SUBLICENSING & SUB-CONTRACTING

 

3.1

Evaxion shall, by means of entering into Sub-License Agreements with Third Parties, be entitled to sub-license its rights under the License granted as per Clause 2.1 above, provided that Evaxion, subject to the Preferred Model being implemented, must obligate the Third Party Sub-licensee(s) to procure all requirements for the Licensed Adjuvant from the SSI designated Commercial Supplier manufacturing the Licensed Adjuvant. In addition, any Sub-License Agreement shall implement the following provisions:

 

(a)

Evaxion shall secure all appropriate covenants, obligations and rights from any Sub-licensee, to ensure that any Sub-licence Agreement is consistent with the terms of this Agreement;

 

 

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(b)

the Sub-License Agreement, and any further sub-license agreement granted, shall automatically terminate upon termination of this Agreement for any reason;

 

(c)

Evaxion shall provide SSI with summary of each Sub-licence Agreement, and cause any Sub-licensee to provide SSI with a summary of further sub-license agreements entered into by any Sub-licensee or sub-sub-licensees as per Clause 3.1 (d) below, which summaries shall be updated to the extent that Sub-license Agreements and/or further sub-license agreements are subsequently amended or supplemented. The summary shall be provided by Evaxion completing and submitting to SSI the Summary Template attached hereto as Schedule 4, Sub-license Agreement & sub-license agreement Summary Template. SSI shall not be obligated to verify that Evaxion as per the summaries has met its obligations as per this Clause 3.1, until the Parties may have a dispute questioning compliance. Were the Parties to commence dispute resolution as per Clause 19.3 below, Evaxion shall, for the purpose of the hearings and subject to confidentiality as per this Agreement, be obligated to disclose any Sub-license Agreement and sub-license agreement entered into; and,

 

(d)

Sub-licensees shall have the right to provide further sub-licences to sub-sub-licensees, who shall in turn have the right to provide further sub-licences through any number of multiple tiers, all subject to each and every sub-license being made subject to this Clause 3.1 a) through d), and to any Sub-licensee being obligated vis-à-vis SSI as Evaxion is as per this Agreement, were this Agreement to be terminated and the sub-license upheld by a competent authority or court irrespectively of 3.1 b) above.

 

3.2

If the Extended License is granted as per Clause 2.2 above, Evaxion may exploit same by entering into a single sub-contracting agreement with a single CMO on the following basis:

 

3.2.1

The CMO must be based in the EEA, the UK, Switzerland or in the USA;

 

3.2.2

The CMO must be EMA or FDA approved and on a regular basis be subject to inspections by such authorities for the purpose of confirming that the CMO is capable of applying cGMP standards to its manufacturing operations and that the Licensed Adjuvant is manufactured to such standard;

 

3.2.3

The CMO must accept to render the manufacturing services on a work-for-hire basis vesting all Licensed Adjuvant manufacturing related foreground technology in Evaxion;

 

 

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3.2.4          Foreground technology, whether patented and/or comprising non-patented know how, relating to the manufacturing of the Licensed Adjuvant shall be deemed licensed back (grant back) to SSI on a non-exclusive, fully paid-up, irrevocable and ever-green basis for use by SSI or its designates for the purpose of developing and commercialising liposomal adjuvant formulations. For the sake of clarity, NO SUB-LICENSING of rights granted to Evaxion pursuant to Clause 2.2 with regard to the manufacturing of Licensed Adjuvant shall be deemed authorised, i.e. that manufacturing of Licensed Adjuvant by a Third Party contracted by Evaxion must take place for and on behalf of Evaxion on terms and conditions securing that no Know How or Licensed Adjuvant related or presumably related know how is vested in the contractor; and,

 

3.2.5         Evaxion shall not, unless agreed to by SSI at SSI’s subjective discretion, be entitled to acquire[****]. This limitation does not prevent[****]. However, if the [****] for manufacture of[****].

 

4.

PROVISION OF KNOW HOW

 

4.1

Application Know How: Promptly after the Effective Date, SSI shall transfer to Evaxion all Application Know How. SSI shall confirm in writing to Evaxion that such transfer is complete after it has delivered to Evaxion all of such Application Know How. SSI shall reasonably assist Evaxion, at Evaxion’s request, in the use and understanding of the Application Know How and Licensed Adjuvant, including providing responses to follow-up or ad-hoc queries via email or telephone, provided, however, that Personnel designated by Evaxion to receive such advice must be fully trained and experienced in the formulation of adjuvants for vaccine use in humans.

 

4.2

Manufacturing Know How: Only if the Default Model becomes applicable as per Clause 2.2 above, SSI shall, [****] the Manufacturing Know How to [****] as per Clause 3.2 above, by means of SSI executing a Technology Transfer as per Clause 5 below. [****] shall mean that were a further Technology Transfer[****], then Evaxion is authorised to contractually obligate [****] to carry out such Technology Transfer on Evaxion’s behalf without involving SSI, whether resource wise or financially, it being noted that SSI by then may no longer possess the required competencies to participate in a Technology Transfer.

 

5.

TECHNOLOGY TRANSFER

 

5.1

Execution of the Technology Transfer shall be initiated upon Evaxion, the[****], which shall incorporate the [****]which 1) Evaxion [****] undertake to keep the Manufacturing Know How in confidence [****], and 2) Evaxion undertakes [****] with such confidentiality undertaking[****]. SSI confirms advance [****] to this Agreement.

 

5.2

Upon SSI having received a [****], SSI will, at Evaxion’s request and authorization:

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

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5.2.1

Grant Evaxion [****], provided however that SSI shall only be obligated to execute a [****] access to Manufacturing Know how on [****]; and,

 

5.2.2          Carry out the[****]; and,

 

5.2.3          Provide a reasonable amount of technical support [****].

 

5.3

Provision of technical support as per Clause 5.2.3 above[****], but will specifically [****] required for the manufacturing of the Licensed Adjuvant in order to obtain similar yields and quality results as achieved by the [****] to be supplied as per[****]. Unless otherwise agreed, SSI[****], if applicable, to execute the[****], provided however that the [****] seeking to meet the objective of the[****].

 

5.4

[****] (if required), as well as any[****], entrusted to carry out the[****].

 

5.5

On SSI’s request Evaxion [****], provided however that Evaxion may use [****] and provided that SSI [****], SSI shall be deemed relieved from [****].

 

5.6

If a Technology Transfer request [****] as per this Agreement.

 

6.

PROVISION OF LICENSED ADJUVANT

 

6.1

Supply of Licensed Adjuvant for Phase 2 Clinical Trials

 

6.1.1

SSI undertakes to supply or have supplied up to [****] (the “Maximum”) of the [****] to Evaxion to cover Evaxion’s need for [****] to be used for Evaxion’s [****].

 

6.1.2

Evaxion must place a binding order for delivery of the [****] (the “Order”) must be placed, i.e. that[****].

 

6.1.3

Delivery of the [****]. The Order will be accommodated by SSI delivering the [****]. The first delivery shall take place [****] of Evaxion having placed the Order and the second delivery [****] as per the Order shall be made within [****] from the first delivery.

 

6.1.4

For delivery of the Order Evaxion shall compensate SSI for such [****] which may have been or will be incurred by SSI for the manufacturing and supply of the[****].

 

6.1.5

Additional aspects of the delivery of the [****] covering e.g. labelling and logistics, shall be governed by the Clinical Trial Supply Agreement attached hereto as Schedule 6.

 

6.2

Supply of Licensed Adjuvant for [****]

 

6.2.1            Subject to the Preferred Model having been implemented, Evaxion and the SSI designated Commercial Supplier shall

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

negotiate terms and conditions for the supply by the Commercial Supplier of Licensed Adjuvant as required by Evaxion [****] of the Vaccine. In the event that Evaxion and the Commercial Supplier are not able to agree to terms and conditions of such supply agreement acceptable to both parties before[****], Evaxion shall be entitled to terminate this Agreement by a [****] written notice to SSI.

 

 

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6.2.2          In the event that the Preferred Model has been implemented, but the agreement between SSI and the Commercial Supplier and manufacturer of the Licensed Adjuvant is subsequently terminated, SSI will inform Evaxion hereof without unreasonable delay and in good faith work with Evaxion to try to identify a new manufacturer and supplier of the Licensed Adjuvant to meet the needs of Evaxion.

 

	7.	PAYMENTS

7.1

Up-front Fee

 

Evaxion shall pay to SSI a non-refundable up-front fee comprising Euros fifty-thousand (€50,000) within [****]from the Eff ective Date.

 

7.2

Royalties

 

On Net Sales earned by Evaxion and its Affiliates, Evaxion shall pay to SSI a royalty amounting to [****].

 

7.3

Sub-license Income Sharing

 

7.3.1

On any Sub-license Income earned by Evaxion, and its Affiliates, whether under a Sub-license Agreement or otherwise, Evaxion shall pay to SSI a share, whether the Vaccine comprises a Project Vaccine or a Non-Project Vaccine. The size of the Sub-license Income share due to SSI shall be determined and reflect to which extent Evaxion has invested in carrying out the Phase 2 and Phase 3 Clinical Trials in respect of Vaccines prior to entering into the Sub-license Income generating agreement as follows:

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

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Tier	Date of Sub-licence Agreement with regard to a Vaccine	Sub-licence Income rate
1	The first Sub-license Agreement is entered into by Evaxion at any time prior to initiation (first patient-first visit) of a Phase 2 Clinical Trial.	[****]
2	The first Sub-license Agreement is entered into by Evaxion at any time i) after the initiation (first patient-first visit) of a Phase 2 Clinical Trial , but ii) prior to the initiation (first patient-first visit) of any Phase 3 Clinical Trial.	[****]
3	The first Sub-license Agreement is entered into by Evaxion at any time after the initiation (first patient-first visit) of a Phase 3 Clinical Trial.	To be negotiated in good faith by the Parties, but in no event less than [****] or more than[****].   The Parties will, within this range, negotiate the percentage rate, if Evaxion choses to take the Vaccine into Phase 3. The percentage rate will reflect the Evaxion investment and risk of financing the Phase 3 Clinical Trial.

 

 

7.3.2

Project Vaccine

 

7.3.2.1 The Sub-license Income rate applicable to Sub-license Income received by Evaxion or its Affiliates in consideration for the grant of a Sub-licence Agreement with regard to a Project Vaccine and the exploitation by a Third Party of a Sub-license Agreement with regard to a Project Vaccine shall be determined as per the Clause 7.3.1 table above, when the first Sub-licence Agreement is executed by Evaxion and its Sub-licensee.

 

7.3.2.2 The Sub-license Income rate applicable to Sub-license Income received by Evaxion or its Affiliates in consideration for

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

the grant of an Option to License Agreement with regard to a Project Vaccine or the grant of letters of intent and any other non-binding document or arrangement that has as its main object the prospect of the entering into of a Sub-license Agreement or an Option to License Agreement with regard to a Project Vaccine, (“Project Vaccine Reservation Payments”), shall be[****].

 

 

 

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7.3.2.3 The Sub-license Income rate that is fixed on the basis of the above principles in respect of the Sub-license Income generated in respect of the first Sub-license Agreement entered into after the Effective Date with regard to a Project Vaccine shall apply for any subsequent Sub-license Income generated in respect of any subsequent Sub-license Agreement entered into with regard to Project Vaccine(s) and any subsequent Project Vaccine Reservation Payments, irrespective of whether such subsequent sublicensing (or entering into of Option to License Agreement or letter of intent, etc.) occurs at a later or earlier stage of development (re the above tiers) than the stage where the sublicensing under the first Sub-license Agreement occurs. As an example, if the first Sub-licence Agreement with regard to a given Project Vacccine is entered into at the [****], the Sub-license Income generated in respect of a subsequent Sub-license Agreement with regard to another Project Vaccine, entered into at Tier 1 stage of development, will also be fixed at [****], as will any Project Vaccine Reservation Payments (after the granting of such first Sub-license Agreement).

 

7.3.3           Non-Project Vaccines.

 

7.3.3.1 For Non-Project Vaccines, the Sub-license Income rate shall be fixed on the basis of the above principles in respect of the Sub-license Income generated in respect of the first Sub-license Agreement entered into after the Effective Date with regard to a Non-Project Vaccine and shall apply for any subsequent Sub-license Income generated in respect of any subsequent Sub-license Agreement entered into with regard to Non-Project Vaccine(s), irrespective of whether such subsequent sublicensing occurs at a later or earlier stage of development (re the above tiers) than the stage where the sublicensing under the first Sub-license Agreement occurs. As an example, if the first Sub-licence Agreement with regard to a given Non-Project Vacccine is entered into at the [****], fixing the Sub-license Income

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

rate at [****], the Sub-license Income generated in respect of a subsequent Sub-license Agreement with regard to another Non-Project Vaccine, entered into at Tier 1 stage of development, will also be fixed at [****].

 

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7.3.3.2 The Sub-license Income rate applicable to Sub-license Income received by Evaxion or its Affiliates in consideration for the grant of an Option to License Agreement with regard to a Non-Project Vaccine or the grant of letters of intent and any other non-binding document or arrangement that has as its main object the prospect of the entering into of a Sub-license Agreement or an Option to License Agreement with regard to a Non-Project Vaccine shall be determined on the basis of the principles set out in Clause 7.3.2.1 and 7.3.2.3 above with regard to determining the Sub-license Income rate applicable to Project Vaccine Reservation Payments combined with the principles set out in Clause 7.3.3.1.

 

7.4

Development Cost Deduction

 

7.4.1            In acknowledgement of Evaxion’s contribution to the Vaccine developmentwith regard to Project Vaccines, Evaxion shall be entitled, as per the principles set out in this Clause 7.4, to deduct [****] that are incurred before closing of the first Sub-license Agreement with regard to a Project Vaccine, triggering a reduction of SSI’s share of the Sub-license Income as per Clause 7.3 above.

 

7.4.2

When calculating [****] Income as per Clause 7.3 above, Evaxion may[****], provided that such payments are [****] prior to the closing of the first Sub-license Agreement. Other payments, i.e. payments received by Evaxion [****].

 

[****].

 

The amount that Evaxion is entitled to [****] by Evaxion over a period of from grant of a the first Project Vaccine Sub-license Agreement, provided, however, that the applicable Sub-licence Income rate set forth in Clause 7.3 [****], depending on the Tier applicable, and as calculated on a [****].

 

For clarity, the foregoing proviso is a[****].

 

7.4.3

Respecting the [****], Evaxion may in each year of the [****] period [****] by Evaxion sponsoring[****], however such [****] not to exceed in aggregate the agreed [****] over the [****] period.

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

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7.4.4

Irrespectively of the above, if the remaining[****], then Evaxion can[****].

 

7.4.5

The amount to be [****] shall be declared at the time the [****] is issued.

 

7.5

Anti-Stacking, Prejudicing Third Party Patent Position Deductions

 

If necessary for Evaxion to obtain a license to any Third Party’s patent rights in order for Evaxion, including via Sub-licensees, to exploit any Patent Rights and/or Know-How (to the extent Licensed), Evaxion shall inform SSI accordingly and SSI shall, using reasonable commercial efforts, take out the necessary license or amend the Licensed Know-How as required to eliminate the infringement and to the benefit of Evaxion, with a right for Evaxion to sub-license in accordance with Clause 3 above, (“Third Party License”), in accordance with the following principles:

 

a)

The negotiations with the Third Party shall be[****].

 

b)

SSI shall at [****] of any Third Party License.

 

c)

Subject to the [****], SSI shall at [****], including any[****]

 

d)

SSI’s [****] by SSI and its Affiliates in respect of the [****] in question under all license agreements with licensees obtaining rights from SSI under the Third Party License(each a “SSI Licensee”). If there are no other SSI Licensees than Evaxion, SSI’s [****].

 

e)

The [****] to be made to the Third Party under the Third Party License, [****].

 

f)

Where SSI or its Affiliates [****] to any additional Third Party in respect of the rights under the Third Party License, SSI shall [****] under such sub-license agreement with such additional SSI Sub-Licensee(s) shall be included in the [****]. Further, Evaxion’s [****].

 

g)

Any and all. SSI can only request [****].

 

h)

SSI shall on a [****] provide documentation to Evaxion of the [****] under the Third Party License, including [****]. Evaxion shall have the right to [****].

 

8.

PAYMENT TERMS

 

8.1

Following the First Commercial Sale of each Vaccine in each country and

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.during the Term of this Agreement, within [****], Evaxion shall, on a Vaccine-by-Vaccine and country-by-country basis, provide SSI with a statement for that [****] setting out: (a) the amount of gross sales, deductions applied, and Net Sales realized during the applicable [****]; (b) a calculation of the amount of royalty payment due in Euros on such Net Sales for such [****], including the exchange rates used as per Clause 8.4 below; and (c) the amount of withholding taxes, if any, deducted with respect to such royalties.

 

 

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8.2

Following the grant of a Sub-licence as per Clause 3.1 above, within [****] after the end of each [****] in which Evaxion receives any Sub-licence Income, Evaxion shall provide SSI with a statement for that preceding [****] setting out the Sub-licence Income payment due in Euros for such[****].

 

8.3

Where any sum due to be paid to SSI hereunder is subject to any withholding or similar tax, the Parties shall use reasonable efforts to do such acts and things and to sign such documents as will enable them to take advantage of any applicable double taxation agreement or treaty. In the event there is no applicable double taxation agreement or treaty, or if an applicable double taxation agreement or treaty reduces but does not eliminate such withholding or similar tax, Evaxion shall pay such withholding or similar tax to the appropriate government authority, deduct the amount paid from the amount due SSI and secure and send to SSI the best available evidence of such payment sufficient to enable SSI to obtain a deduction for such withheld taxes or obtain a refund thereof.

 

8.4

If Vaccine is sold or supplied in a currency other than Euros, the amounts payable to SSI in respect of such sales under this Agreement shall be first determined in the currency of the country in which such sales took place and then converted into Euros using the average ECB Euro foreign exchange reference rate in effect on the day that effective payment is made to SSI.

 

9.

RECORDS AND INSPECTIONS

 

9.1

Maintenance of Records

 

Evaxion shall keep at its normal place of business accurate and up to date records and books of account showing the quantity and description of all Vaccine sold by Evaxion in each country of the Territory, the corresponding Net Sales, and any and all Sub-license Income earned by Evaxion or its Affiliates for a period comprising [****] after the end of the [****] in which the Net Sales or the Sub-license Income are booked. Evaxion shall also keep at its normal place of business accurate and up to

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. date records and books of account showing all external development costs incurred and deducted in accordance with Clause 7.4. Evaxion shall ensure that such records and books of accounts are sufficient to ascertain any payments due to SSI as per this Agreement.

 

 

Execution Copy

 

 

9.2

Inspections

 

Evaxion shall, subject to appropriate confidentiality obligations being in place, make its records and books available for inspection during normal business hours at Evaxion’s normal place of business by an independent professional accountant appointed by SSI and reasonably acceptable to Evaxion for the purpose of verifying the amounts due to SSI under this Agreement and the accuracy of any statement provided by Evaxion to SSI in relation to Sub-licence Income. Any state authorized public accountant employed by an audit firm, which has not audited neither SSI nor Evaxion during the preceding ten (10) years or more shall be deemed to be acceptable to Evaxion, subject to such State Authorized Public Accountant and Audit Firm representing that they are not legally incapacitated in relation to carrying out the inspection.

 

9.2.1

SSI shall be entitled to have inspections carried out pursuant to Clause 9.2 [****] (and [****] following the termination or expiry of this Agreement) and not more than once with respect to any[****], unless irregularities are observed or suspected, on giving Evaxion at least [****] written notice prior to each inspection, unless irregularities are observed or suspected in which case inspection may be carried out without undue delay. No inspection may take place more than [****] later than the end of the [****] to which the inspection relates.

 

9.2.2

[****] shall bear the cost of carrying out the inspections referred to in Clause 9.2 unless there is an error of more than [****] in any [****] statement provided by Evaxion or if irregularities comprising breaches of the applicable book keeping standards in which case Evaxion shall reimburse SSI for the amounts charged by the independent professional accountant in respect of making the relevant inspection. If SSI’s inspection shows that Evaxion has paid more than the amounts properly due under this Agreement then Evaxion shall be entitled to deduct such excess from any sums payable to SSI under this Agreement, except in respect of any inspection made after the expiry of the payment obligations under this Agreement, or where the repayment exceeds the amounts payable in the next [****], in which case

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

Execution Copy

 

SSI shall repay such excess payments to Evaxion. If SSI’s inspection reveals a deficit then Evaxion shall promptly make good the deficit. Overpayments or deficits shall be made good irrespective of whether the [****] threshold is reached or not.

 

Evaxion will cause an independent inspection of [****] Income reported to be conducted at least every [****] as from the first year in which the annual sales (top line turn over) of Vaccines exceed [****]. The inspections will address, at a minimum, the amounts due to SSI under this Agreement and the accuracy of any statement provided by Evaxion to SSI in relation to Net Sales and Sub-licence Income, and whether the amount owed has been paid to SSI and is reflected in the records of Evaxion. Evaxion will submit the independent professional accountant's report promptly to SSI upon completion. Evaxion will pay for the entire cost of the inspection.

 

9.3

Diligence

 

9.3.1          Evaxion, directly or through its Affiliates or Sub-licensees, will use diligent efforts to develop, manufacture, and sell Vaccines, provided however that manufacturing of the Licensed Adjuvant shall be subject to the Extended License having been granted.

 

9.3.2          Evaxion shall provide annually updates during the Term on the progress of developing, manufacturing, and commercializing Vaccines. Within [****] after the end of each [****], Evaxion shall provide SSI with a written report following the format specified in Schedule 3 attached hereto.

 

10.

REGULATORY

 

10.1

Evaxion shall have the exclusive right, at its own cost, to file and maintain, in Evaxion’s name, any regulatory filings and regulatory applications necessary to obtain and maintain Product Approval for the Vaccine in the Territory. Evaxion may grant the rights set out in this Clause 10.1 to one or more of its Affiliates or Sub-licensees.

 

10.2

SSI will assist Evaxion or its designates in obtaining Vaccine INDs and, eventually, Product Approval for Vaccines, by [****] to and as required by regulatory authorities, as restricted files, i.e. non-accessible by [****] , subject to Clause 14 above. Services rendered by SSI as per this Clause 10.2 shall be rendered to and paid for by Evaxion as per Clauses 5.3 and 5.4 above, as did the regulatory assistance comprise a Technology Transfer.

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

Execution Copy

 

11.

NO IMPLIED LICENCES

 

11.1

Except for those rights expressly granted under this Agreement, nothing herein shall be construed as creating, granting, or conveying to either Party any licence, right, title, or other interest in or to any intellectual property rights Controlled by the other Party or its Affiliates, whether by implication or otherwise.

 

12.

MANAGEMENT OF PATENT RIGHTS

 

12.1

Patent Rights

 

SSI shall be responsible for, and undertake or cause to be undertaken, the filing, prosecution, and maintenance of the Patent Rights. SSI shall [****] after the Effective Date. SSI shall provide to Evaxion (or its designated counsel) copies of [****] and SSI shall keep Evaxion (or its designated counsel) [****] of the Patent Rights.

 

13.

INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS

 

13.1

Maintenance

 

[****] is responsible for preparing, filing, prosecuting, and maintaining the Patent Rights at [****] discretion.

 

13.2

Infringement Procedure

 

If Evaxion or SSI learns of any infringement or suspected infringement of Patent Rights, or if a Third Party files a declaratory judgment action with respect to any Patent Rights, the Party who learns of the infringement will notify the other Party in writing and will provide the other Party with any evidence of the infringement available to such Party. [****] will use reasonable efforts to handle the infringement without litigation. If [****] is not successful in stopping the infringement within [****] after the alleged infringer has been formally notified of the infringement, SSI and Evaxion will discuss and agree on possible courses of action with the view of protecting the Vaccine market position in the Territory. In this respect the Parties may also consider data protection and other regulatory mechanisms potentially protecting Evaxion’s Vaccine Product market position and, hence, rendering the enforcement of the Patent Rights superfluous.

 

13.3

Litigation & Costs

 

[****] is not obligated to bring an infringement action, but may at its discretion institute and prosecute a suit or defend any declaratory judgment action. [****] will bear the entire cost of the litigation and will retain the entire amount of any recovery or settlement. [****] may, for standing purposes, name [****] as a party to any proceedings relating to [****]and

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. will, if [****] decides to institute suit, notify [****] in writing. [****] shall, to the extent [****] is so named, obtain [****] prior written consent before executing procedural steps implyling risks or costs to[****].

 

 

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13.4

Out-of-Pocket Costs incurred by [****] assisting [****] in any enforcement proceedings, shall be reimbursed [****]. For the sake of clarity, [****] shall not be obligated to assist [****] in enforcement proceedings.

 

14.

CONFIDENTIALITY

 

In this Agreement, “Confidential Information” shall mean any and all data, results, Know How, show-how, software, algorithms, inventions, designs, trade secrets, plans, forecasts, analyses, evaluations, research, technical information, manufacturing processes, business information, financial information, business plans, strategies, customer lists, marketing plans, including the existence and the terms of this Agreement, and any other information whether oral, in writing, in electronic form, or in any other form; and any physical items, compounds, components, samples, or other materials disclosed by one Party or any of its Affiliates (the “Disclosing Party”) to the other or any of its Affiliates (the “Receiving Party”) before, on, or after the Effective Date.

 

14.1

The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party and any information of any kind whatsoever which may be made available to such Receiving Party by the Disclosing Party during pre-contractual negotiations or in connection with the execution of this Agreement. No Receiving Party will publish or disclose any Confidential Information to any Third Party without the prior written agreement of the Disclosing Party, except that either Party may disclose such information to its staff and natural and legal persons in its service as per Clause 14.3, as well as to its Affiliates, Sub-licensees (this right is only applicable to Evaxion), subcontractors, and advisors and any staff or natural or legal persons in the service of the former, provided that such persons are bound by obligations of confidentiality no less onerous than those set out in this Agreement. Either Party may further disclose Confidential Information as set out in Clause 14.6.

 

14.2

Each Party agrees to ensure that its Personnel observe the provisions of this Clause 14, as well as any natural or legal person in its service in any capacity whatsoever.

 

14.3

The confidentiality obligations imposed pursuant to Clause 14.2 will not apply to information in respect of which the Receiving Party can prove:

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

Execution Copy

 

a)

that it disclosed it after having obtained the prior written permission of the Disclosing Party or that it had already been made public by the Disclosing Party;

 

b)

that it was in the public domain at the time of communication to the Receiving Party, or that it came into the public domain after receipt by the Receiving Party of such information at no fault on the part of the Receiving Party;

 

c)

that it was received from a Third Party lawfully;

 

d)

that, on the date of its communication by the Disclosing Party, the Receiving Party was already in possession thereof;

 

e)

that it is independently discovered after the date of communication by the Receiving Party or one of its Affiliates without the application or use of such information; or

 

f)

that the Parties agree in writing is not confidential or may be disclosed.

 

14.4

Either Party may disclose Confidential Information that would otherwise be subject to the provisions of this Clause 14 to the extent that it is required to be disclosed by the application of a mandatory legal or regulatory provision or by the listing rules of an applicable stock exchange or by the application of a final judgment or an arbitral decision, provided that to the extent it is legally permitted to do so, the Receiving Party shall:

 

a)

immediately notify the Disclosing Party in writing that such disclosure is required and provide the reasons on which this is based in order to enable the Disclosing Party, if it so wishes, to seek a protective order or other appropriate remedy; if however the Receiving Party is unable to provide adequate written notice prior to disclosure, the Receiving Party shall inform the Disclosing Party immediately after the disclosure of the full circumstances of the disclosure and the information which has been disclosed; and

 

b)

only disclose such Confidential Information to the extent that is legally required.

 

14.5

Without limitation to disclosure of Confidential Information pursuant to Clause 14.2 or use of Confidential Information for the purpose of exploiting its rights under or pursuant to this Agreement, Either Party, its Affiliates and Sub-licensees may use and disclose Confidential Information for the purposes of:

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

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a)

prosecuting or defending litigation or filing or prosecuting Patent Rights;

 

b)

regulatory filings and other filings with governmental authorities necessary for the development or commercialization of a Vaccine, including as required in connection with any filing, application, or request for Regulatory Approval; and

 

c)

financial discussions with any actual or bona fide potential investor, stockholder, investment banker, acquirer, merger partner, licensee or sub-licensee, or other potential or actual partner or their agents; provided that each disclosee must be bound by obligations of confidentiality and non-use at least as equivalent in scope as and no less restrictive than those set forth in this Clause 14 prior to any such disclosure.

 

14.6

The provisions of this Clause 14 shall commence on the Effective Date and shall continue during the Term of this Agreement and for ten (10) years after expiry or termination.

 

15.

WARRANTIES & REPRESENTATIONS

 

15.1

Warranties given by both Parties

 

Each Party warrants to the other Party that:

 

15.1.1

it is duly organised, validly existing, and in good standing as a corporation or other entity or body as represented herein under the laws and regulations of its jurisdiction of incorporation, organisation, or chartering;

 

15.1.2

it has, and throughout the term of this Agreement shall retain, the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;

 

15.1.3

the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorised by all necessary organisational action of the Party;

 

15.1.4

when executed and delivered by such Party, this Agreement shall constitute the legal, valid, and binding obligation of that Party, enforceable against that Party in accordance with its terms; and

 

15.1.5

there exists no commitment or agreement with any Third Party which would interfere with or preclude the diligent and complete fulfilment of its obligation under this Agreement.

 

 

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15.2

Warranties given by SSI

 

SSI warrants to Evaxion that:

 

15.2.1

SSI has, as of the Effective Date, full ownership, or is in Control, of the entire right, title, and interest in and to the Patent Rights;

 

15.2.2

SSI has, to the best of its knowledge and as of the Effective Date has full ownership, or is in Control, of the entire right, title, and interest in and to the Licensed Know How;

 

15.2.3

SSI has, as of the Effective Date, the full right, power, and authority to grant the Licence;

 

15.2.4

to the best of its knowledge and as of the Effective Date, the Patent Rights are all of the Patent Rights that are necessary for Evaxion's exploitation of the rights granted pursuant to Clause 2.2;

 

15.2.5

none of the Patent Rights have been found to be invalid and SSI is not aware of any information that would result in their being rendered invalid in any jurisdiction;

 

15.2.6

SSI is not aware of any Third Party infringing the Patent Rights; and,

 

15.2.7

no written notice has been received by SSI which alleges that the exercise of the Licensed Rights or use of the Licensed Adjuvant as contemplated by this Agreement infringe the rights of any Third Party and SSI is not aware of any Third Party’s intellectual property rights that would be infringed by Evaxion’s exercise of the rights granted in this Agreement.

 

15.3

For clarity, SSI has not made any freedom to operate investigations with respect to use the Patent Rights.

 

15.4

Representations given by Evaxion

 

Evaxion represents to SSI that:

 

15.4.1

Evaxion, as of the Effective Date, to the best of its knowledge and belief is in Control of PIONEER, a unique proprietary artificial intelligence platform utilizing and integrating the power of neural networks, big data, and supercomputing enabling identification of targets for immunotherapies targeting cancer and used for the purpose of the Project;

 

15.4.2

No part of any intellectual property rights sustaining operation of the PIONEER platform has, to the best of Evaxion’s knowledge and belief and as of the Effective Date, been found to be invalid and Evaxion is not aware of any information that would result in Evaxion being deprived its right and ability to exploit the PIONEER platform; and,

 

15.4.3

Evaxion is, as of the Effective Date, not aware of any Third Party infringing intellectual property rights sustaining Evaxion’s operation of the PIONEER platform.

 

 

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15.5

Exclusion of Implied Warranties

 

Without prejudice to the warranties given in this Clause 15, all statements and representations (other than fraudulent misrepresentations) warranties, terms, and conditions (except for those set out in this Agreement) implied by statute, common law, or otherwise are hereby excluded to the maximum extent permissible by law.

 

16.

LIMITATION OF LIABILITY

 

16.1

Subject to the provisions of Clauses 16.3 and 16.6, and the warranties given in Clause 15, SSI and its Affiliates shall have no liability to Evaxion, its Affiliates or any Sub-licensees, whether in contract, tort, negligence, or otherwise for any loss or damage arising out of or in connection with:

 

a)

any research, development, manufacture, use, distribution, or supply of the Vaccine by or on behalf of Evaxion or its Sub-licensees; or

 

b)

any possession or use by a Third Party of the Vaccine manufactured or supplied by or on behalf of Evaxion or its Sub-licensees; or

 

c)

product liability related claims or losses for defects in the Licensed Adjuvant, which have been manufactured by the Commercial Supplier appointed in connection with implementation of the Preferred Model or a Third Party Evaxion designated CMO following implementation of the Default Model, unless the Manufacturing Know How applied by the Commercial Supplier or the Third Party Evaxion designated CMO is proven to have caused the Loss, as defined below, and is proven defective.

 

16.2

Each Party shall indemnify, defend and hold harmless the other Party against (and shall reimburse the other Party) all liabilities, damages, losses and expenses (including reasonable attorneys’ fees and expenses of litigation) (“Losses”) incurred by or imposed upon the Party having incurred a Loss, if such Loss is a result of claims, suits, actions or demands asserted by Third Parties, or Affiliates seeking recourse, or judgments obtained by Third Parties or Affiliates seeking recourse, with regard to or as consequence of (a) the indemnifying Party’s breach of this Agreement, including any warranties hereunder, or the acts or omissions of any of the indemnifying Party’s Affiliates or Sub-licensees, or (b) the exploitation of rights granted pursuant to this Agreement, including, without limitation, intellectual property rights infringement, personal injury and product liability claims, except in each case to the extent that such Losses have arisen due to the indemnified Party’s gross negligence or willful acts or omissions. For the avoidance of doubt, Evaxion shall not be liable to SSI under this Clause 16.2 with regard to claims that the Patent Rights or Know How, infringe the rights of any Third Party. For the avoidance of doubt, SSI shall not be liable to Evaxion under this Clause 16.2 with regard to claims that Foreground Technology granted back as per Clause 3.2.4 infringe the rights of any Third Party.

 

16.3

Subject to Clause 16.2, neither Party shall be liable for any loss of profits or any indirect, incidental, special, exemplary, punitive, or consequential damages, however caused and on any theory of liability, whether in contract, tort, negligence, breach of statutory duty, or otherwise, in connection with or arising out of this Agreement, even if advised of the possibility of such damages.

 

 

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16.4

The total liability of either Party under this Agreement will be capped at [****].

 

16.5

SSI cannot [****] Evaxion [****] with [****] obligations, see Clause 9.3, if Evaxion [****] that are required in order for Evaxion to be able [****] obligations and [****] therewith, without such[****], would [****] of the [****] rights.

 

16.6

No provision of this Agreement shall operate to:

 

16.6.1

exclude any provision implied into this Agreement by Danish law and which may not be excluded by Danish law;

 

16.6.2

limit or exclude the liability of either Party:

 

(i)

for its breach of the confidentiality obligations set out in Clause 14; or

 

(ii)

for any payments properly owing to SSI pursuant to Clause 7; or

 

16.6.3

limit or exclude any liability, right, or remedy to a greater extent than is permissible under Danish law in relation to (1) death or personal injury caused by the negligence of a Party to this Agreement or (2) fraudulent misrepresentation or deceit.

 

16.7

Evaxion shall effect and maintain at its own expense human clinical trial insurance programs taken out with investment grade insurers covering Phase 1, 2 and/or 3 Clinical Trials as required, and, no later than when accomplishing the First Commercial Sale, a general commercial liability insurance, including product liability insurance, deemed adequate to cover Evaxion’s obligations hereunder and which are consistent with normal business practices of prudent companies similarly situated during the term of this Agreement and three (3) years thereafter. Evaxion shall provide SSI with written evidence of such insurance upon request

 

17.

TERM AND TERMINATION

 

17.1

This Agreement is in effect for the duration of the Term comprising the period running from the Effective Date until the earlier of i) the effective date of termination as per Clauses 17.2, 17.3, 17.4 or 17.5, and ii) expiry after a fixed period of ten (10) years commencing on the first calendar day of the calendar month following the First Commercial Sale of a Vaccine, calculated on a Vaccine-by-Vaccine basis.

 

17.2

Termination

 

Either Party may terminate this Agreement with immediate effect by giving the other Party written notice of termination if:

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

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17.2.1

the other Party commits a material breach of this Agreement, including breach of warranties, which is not capable of remedy; or,

 

17.2.2

the other Party commits a material breach of this Agreement which is capable of remedy and, having been notified of such breach, fails to remedy it within [****] after notification.

 

17.3

This Agreement may be terminated by either Party with immediate effect by written notice to the other Party if an order is made or a resolution passed for the winding up of the other Party (other than for the purpose of a solvent scheme of reconstruction or amalgamation).

 

17.4

Apart from termination pursuant to Clauses 6.2.1, 17.2 and 17.3, Evaxion may only terminate this Agreement for the following reasons:

 

(i)

on the grounds of lack of efficacy of a Vaccine, as a result of which Evaxion determines not to progress with the development and commercialisation of such Vaccine, and

 

due to safety concerns, market and/or competitive situation that would prevent commercialisation of a Vaccine. If Evaxion terminates the Agreement pursuant to this Clause 17.4, it shall do so by providing SSI a [****] written notice of termination.

 

17.5

SSI may not terminate this Agreement, but in accordance with Clauses 17.2 or 17.3.

 

18.

CONSEQUENCES OF EXPIRY OR TERMINATION

 

18.1

On termination (but not expiry) of this Agreement for any reason:

 

18.1.1

the Licence or, if applicable, the Extended License, shall terminate automatically and rights granted by SSI pursuant to this Agreement shall terminate as of the effective date of termination;

 

18.1.2

Evaxion shall pay any outstanding amounts due to SSI as of the effective date of termination, including, although subject to mitigation, any pre-order committed amounts for supply of the Phase 2 Stock. Where the termination is due to SSI’s material breach of the Agreement, see Clause 17.2, Evaxion shall be entitled to set-off any loss in such outstanding amounts due to SSI;

 

18.1.3

except where the termination is due to SSI’s material breach of the Agreement or the winding-up of SSI, see Clauses 17.2 and 17.3, Evaxion, its Affiliates and any Sub-licensees shall either, at SSI’s discretion, i) immediately cease developing, manufacturing and commercializing any Vaccine, which includes ceasing sublicensing Evaxion’s proprietary PIONEER platform to the extent such sublicensing allow commercialising the

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

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Vaccine (for the avoidance of doubt, other vaccines based on the PIONEER platform - that are not administrated together or in combination with Licensed Adjuvant - can still be developed, manufactured and commercialised and Evaxion shall not be limited from sublicensing its rights to the PIONEER platform for such purpose) or, ii) continue paying SSI as per Clause 7 until expiry as per Clause 17.1, ii) as had the Agreement not been terminated as per Clause 17.1, it being agreed by the Parties that the back-loaded royalty and Sub-license Income payments called for as per Clause 7 above, comprise the lifetime value of the rights granted by this Agreement. Where the termination of this Agreement is due to SSI’s material breach of the Agreement or the winding-up of SSI, see Clauses 17.2 and 17.3, Evaxion shall cease having the rights granted under the License or, if applicable, the Extended License, as in case of any other termination, but SSI shall in such event not be entitled to request any continued payments as per Clause 7 above, provided however that payments having fallen due prior to the effective date of termination must still be settled;

 

18.1.4        if requested by Evaxion, SSI will loyally consider procuring, as soon as reasonably practicable, that any Sub-licensee becomes a direct licensee of SSI or its designate subject to financial terms similar to the financial terms set forth in this Agreement, provided however that SSI reserves the right at its subjective discretion not to accept such novation;

 

18.1.5        each Party shall return to the other all Confidential Information, including any Know How, belonging to the other Party and any copies thereof, provided that SSI and, if Evaxion immediately ceases developing, manufacturing and commercializing any Vaccine, Evaxion shall have the right to retain one (1) copy of the Confidential Information in a secure location solely for purposes of identifying its confidentiality obligations under Clause 14. Such retention may last for the duration of the confidentiality period set out in Clause 14.7, whereafter it must be returned. Each Party shall provide a signed statement from its duly authorised officer that the Party’s obligations under this Clause 18.1.5 have been complied with.

 

18.2

On expiry of this Agreement as per Clause 17.1 with respect to a Vaccine, the Licence or, if applicable, the Extended License, shall be deemed fully paid up, royalty-free, irrevocable, and perpetual with respect to such a Vaccine in the Territory, provided, however, that [****] any Patent Rights or Know How or the Trademark and provided that the, if applicable, Extended License [****], and nothing in this Clause 18.2 shall [****],

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. when made subject to (i.e. respecting) the rights granted to Evaxion pursuant to the Extended License, as per this Clause 18.2. For clarity, [****] as per this Clause 18.2.

 

 

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18.3

Termination or expiration of this Agreement for any reason shall be without prejudice to (a) the survival of rights specifically stated in this Agreement to survive; (b) the rights and obligations of the Parties provided in Clause 3.2.4 (Grant Back), 9 (Records and Inspections), 11 (No Implied Licenses), 14 (Confidentiality), 16 (Limitation of Liability), 18 (Consequences of Expiry or Termination), 19.12 (Law and Venue); and (c) any other rights or remedies provided at law or equity which either Party may otherwise have.

 

19.

GENERAL

 

19.1

Notices

 

Any notice to be given pursuant to this Agreement shall be in writing in English and shall be delivered as a PDF document attached to an electronic mail confirmed by registered mail sent to the address of the recipient Party set out below or such other address as a Party may from time to time designate by written notice to the other Party.

 

Address of SSI   Artillerivej 5 DK-2300 Kobenhavn S Denmark   For the attention of: Direktionsekretariatet, Virksomhedsjurist, e-mail: serum@ssi.dk, with a required copy to Head of Business Development business@ssi.dk

Address of Evaxion   Bredgade 34 E DK-1260 Copenhagen K Denmark   For the attention of: Chief Executive Officer e-mail: lsw@evaxion-biotech.com

  

19.2

Any notice given pursuant to Clause 19.1 above shall be deemed to have been received on the earlier of the day of receipt provided receipt occurs on a Business Day of the recipient Party or otherwise on the next following Business Day of the recipient Party.

 

19.3

Any notice that is required in this Agreement to be given in writing shall not be effective if sent only by e-mail.

 

19.4

Severability

 

If the whole or any part of this Agreement is or becomes or is declared illegal, invalid, or unenforceable in any jurisdiction for any reason

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. (including both by reason of the provisions of any legislation and also by reason of any court or competent authority which either has jurisdiction over this Agreement or has jurisdiction over either of the Parties):

 

 

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19.4.1       in the case of the illegality, invalidity, or un-enforceability of the whole of this Agreement it shall terminate only in relation to the jurisdiction in question; or

 

19.4.2       in the case of the illegality, invalidity, or un-enforceability of part of this Agreement, that part shall be severed from this Agreement in the jurisdiction in question and that illegality, invalidity, or un-enforceability shall not, subject to Clause 19.5 below, prejudice or affect the remaining parts of this Agreement which shall continue in full force and effect.

 

If, in the reasonable opinion of a Party, any severance under Clause 19.5 materially affects the commercial basis of this Agreement, then the Parties shall enter into revised arrangements to eliminate the material effect and result in the same commercial effects as originally agreed upon.

 

19.5

Waiver

 

Neither Party shall be deemed to have waived any of its rights or remedies under this Agreement unless the waiver is expressly made in writing and signed and delivered by a duly authorised representative of the waiving Party. In particular, no delay or failure of a Party in exercising or enforcing any of its rights or remedies under this Agreement shall operate as a waiver of those rights or remedies or preclude or impair the exercise or enforcement of those rights or remedies nor shall any partial exercise or enforcement of any right or remedy by a Party preclude or impair such Party’s exercise or enforcement of any other right or remedy.

 

19.6

Entire Agreement and Amendments

 

This Agreement, including by reference the Recitals hereto, which shall be deemed to have contractual status as were the provisions included in the Agreement as such, constitutes the entire agreement and understanding of the Parties relating to the subject matter of this Agreement and supersedes any prior agreement or understanding between the Parties relating to the subject matter of this Agreement.

 

The Parties acknowledge that in entering into this Agreement they do not rely on any statement, representation (including any negligent misrepresentation but excluding any fraudulent misrepresentation), warranty, course of dealing, custom, or understanding except for the warranties expressly set out in this Agreement.

 

No change shall be made to this Agreement except in writing signed by a duly authorised representative of each Party.

 

 

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19.7

Relationship of the Parties

 

Nothing in this Agreement shall create or imply an agency, partnership, or joint venture between the Parties. Neither Party shall act or describe itself as the agent of the other Party nor shall either Party have or represent that it has any authority to make commitments on behalf of the other.

 

19.8

Assignment

 

19.8.1       Evaxion may assign this Agreement in connection with a transaction involving all or substantially all of Evaxion’s PIONEER and Vaccine related assets, provided that Evaxion’s assignee’s financial standing and technical and scientific capabilities are not materially inferior to the financial standing, technical, scientific and commercialization capabilities (the latter in terms of ability and willingness to exploit the License or, if applicable, the Extended License) of Evaxion at the time of the transaction.

 

19.8.2       Evaxion may perform any obligations and exercise any right under the License, through any of its Affiliates, subject to Evaxion standing surety on a no fault basis (strict liability for breach of, inter alia, confidentiality provisions) for the compliance with this Agreement and performance of this Agreement by such Affiliates. Nothing in this Clause 19.9.2 shall limit SSI’s right or ability to execute injunction or other legal procedings against such Affiliates. For the avoidance of doubt, Evaxion may not perform any obligations or exercise any right with regard to the manufacturing of Licensed Adjuvant through any of its Affiliates, were the Extended License to be granted.

 

19.8.3       SSI may assign its rights and obligations under this Agreement for the purpose of changing its legal status to accommodate instructions received from the Danish State regarding SSI’s structure or modus operandi, including an instruction for SSI to transform into e.g. a limited company in accordance with the Danish Company’s Act.

 

19.8.4        SSI may perform any obligations and exercise any rights under this Agreement through any of its Affiliates, subject to SSI standing surety on a no fault basis (strict liability for breach of, inter alia, confidentiality provisions) for the compliance with this Agreement and performance of this Agreement by such Affiliates. Nothing in this Clause 19.9.4 shall limit Evaxion’s right or ability to execute injunction or other legal procedings against such Affiliates.

 

19.8.5

If a Party delegates all or any of its obligations under the License to an Affiliate, the delegating Party shall:

 

(i)

remain fully responsible to the other Party for the proper performance of those obligations by the Affiliate; and

 

(ii)

be liable to the other Party for any negligent act or omission made by the Affiliate or its Personnel in relation thereto.

 

19.8.6

The Parties shall procure that their respective Affiliates comply with the provisions of this Agreement as if they were Parties to this Agreement, and shall vis-à-vis each other stand surety for any Affiliate performance and compliance.

 

 

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19.9

Publicity & Non-disclosure

 

19.9.1        Neither of the Parties shall use the name, seal, logo, trade mark, or service mark of the other Party or any of their Affiliates, or any adaptation thereof (including in any advertising, publicity, or other public statements) without prior written consent obtained from the other Party, or its Affiliates, as the case may be, except where required by applicable law or regulation. Notwithstanding the former, i) SSI may require Vaccines to be sold under a legible legend comprising the wording “CAF®09b based Vaccine Manufactured under license from SSI” or similar to be determined by SSI acting in good faith, and ii) the Parties may identify each other and the nature of the cooperation in financial reports prepared for the sole purpose of complying with stock exchange or regulatory requirements, provided that the wording is approved in advance by the Party not issuing the report.

 

19.9.2        A Party may only release a press release or other public disclosure related to this Agreement if the form and manner of the press release or other public disclosure has been approved by the other Party prior to such release or disclosure, such approval not to be unreasonably withheld, conditioned, or delayed. The issuing Party shall be solely responsible for any breaches of pharmaceutical advertising rules following from publications comprising descriptions or statements regarding the Licensed Adjuvant or Vaccines, without recourse to the other Party.

 

19.10

Third Party Rights

 

Nothing in this Agreement shall confer on any Third Party any rights under, or the right to enforce any provision of, this Agreement.

 

19.11

Law and Venue

 

The validity, construction, and performance of this Agreement shall be governed by the laws of Denmark. Any claim, dispute, or controversy arising out of or related to this Agreement shall be adjudicated pursuant to the laws of Denmark. The Parties agree to the provisions of Clause 19.12.2 below, providing for the exclusive mechanism for resolution of disputes arising hereunder, except that nothing in this Agreement shall be deemed as preventing either Party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the Parties and the subject matter of the dispute as necessary to protect either Party’s rights under this Agreement or Confidential Information. Judgment upon the award may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award and/or an order of enforcement as the case may be.

 

19.11.1

In the event of any controversy or claim arising out of or relating to this Agreement, or the rights or obligations of the Parties hereunder, the Parties shall first try to settle their differences amicably between themselves. Either Party may initiate such informal dispute resolution by sending written notice of the dispute to the other Party, and within [****] after such notice, appropriate representatives of the Parties shall meet for attempted resolution by good faith negotiations. If such representatives are unable to promptly resolve such disputed matter within said [****], either Party may refer the matter by written notice to the other Party’s Chief Executive Officer, or his/her designee for discussion and resolution. If such individuals or their designees are unable to resolve such dispute within [****] after such notice, either Party may initiate proceedings in accordance with the provisions of Clause 19.12.2.

 

The Parties agree to submit to the exclusive jurisdiction of the Maritime and Commercial High Courts in Copenhagen in relation to any dispute arising out of, under, or in connection with this Agreement, or - if said court is not competent in relation to the dispute arisen - the Lyngby City Court as court of first instance.

 

 

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19.12

Counterparts

 

19.12.1

This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement.

 

19.12.2

Transmission of an executed counterpart of this Agreement (but for the avoidance of doubt not just a signature page) by email in PDF format shall take effect as delivery of an executed counterpart of this Agreement. If such method of delivery is adopted, without prejudice to the validity of the Agreement thus made, each Party shall provide the other with the original of such counterpart as soon as reasonably possible thereafter.

 

19.12.3

If this Agreement is executed in counterparts, it shall not be effective unless and until each Party has executed and delivered a counterpart to each of the other Party.

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

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AGREED by the Parties through their duly authorised representatives on the date written at the start of this Agreement.

 

For and on behalf of   Statens Serum Institut:	For and on behalf of   Evaxion Biotech A/S:
Date   ...........................……………….	Date   ...............................…………
Signed   ...........................……………….	Signed   ...............................…………
Full Name   ...........................……………….	Full Name   ...............................…………
Title   ............................………………	Title   ...............................…………
Date   ...........................……………….	Date   ...............................…………
Signed   ...........................……………….	Signed   ...............................…………
Full Name   ...........................……………….	Full Name   ...............................…………
Title   ............................………………	Title   ..............................…………

 

 

 

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SCHEDULE 1: LICENSED PATENTS

 

WO2006/002642 “Compositions and methods for stabilizing lipid-based adjuvant formulations using glycolipids”

 

Filing date: 05.07.2005

 

Country	Application / Patent No.		Status
AU	2005259685 (B2)		Granted
BR	BRP10512757 (A)		Pending
CA	2572985 (C)		Granted
CN	200580022926.X	CN1980638 (B)	Granted
EP*	EP2005756461	EP1765289 (B1)	Granted
*Validated in:	AT/BE/CH/CZ/DE/DK/EE/ES/FI/FR/GB/HU/IE/IT/LI/LT/ NL/PL/PT/RO/SE/SI/SK/TR
IN	2/DELNP/2007		Granted
JP	2007519615	JP4987704 (B2)	Granted
KR	1020077002648	KR101275837 (B1)	Granted
US		US7,749,520 (+ PTE: 1119 days)	Granted
US		US8,277,823 (expires 24.09.2025)	Granted
ZA		ZA200701043 (B)	Granted

 

WO2009/003474 “The use of monomycolyl glycerol (MMG) as an adjuvant”

 

Filing date: 26.06.2008

 

Country	Application / Patent No.		Status
AU	AU2008271756		Granted
BR	PI0811796-9		Pending
CA	CA2691840		Granted
CN	CN101790384	200880104594.3	Granted
EP*	EP2167124		Granted
	*Validated in: AT/BE/CH/CZ/DE/DK/EE/ES/FI/FR/GB/GR/HR/HU/IE/IT/LT/ LV/NL/PL/PT/RO/SE/SK/SL/TR
HK	HK1143086		Granted
IL	IL203016		Granted
IN	567/DELNP/2010		Granted
JP	JP5689314		Granted
KR	KR20100045449		Granted
RU	RU2479317		Granted
US	US8,563,009		Granted

 

 

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SCHEDULE 2: Licensed ADJUVANT & Licensed Know How

 

Part A – Licensed Adjuvant

 

Cationic Adjuvant Formulation 09b (Licensed Adjuvant) consisting of [****].

 

Part B - Application Know How

 

Formulation Vaccines

 

SSI has extensive knowledge and formulation expertise for vaccines with the Licensed Adjuvant, as well as clinical and preclinical experience with Licensed Adjuvant based vaccines. [****]

 

Use of Licensed Adjuvant and vaccines with Licensed Adjuvant

 

[****]

 

Part C –Manufacturing Know How

 

Manufacturing of Licensed Adjuvant

 

SSI has extensive knowledge and production expertise for the Licensed Adjuvant.

 

[****]

 

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

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SCHEDULE 3: PROGRESS REPORT

 

[****]

 

SCHEDULE 4: SUMMARY TEMPLATE

 

[****]

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

 

 

Execution Copy

 

 

SCHEDULE 5: EXTENDED LICENSE TRIPARTITE CDA

 

 

 

TRIPARTITE CONFIDENTIALITY AGREEMENT

 

[****]

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

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SCHEDULE 6: CLINICAL TRIAL SUPPLY AGREEMENT

 

This Clinical Trial Supply Agreement (the “CTSA”) is made and entered into as of the date of last signature of this Agreement (the “Effective Date”) between

 

(1)

Statens Serum Institut, CVR No. DK 4683 7428, a public institute under the Danish Ministry for Health, whose registered office is at Artillerivej 5, DK-2300 Copenhagen S, Denmark (“SSI”); and

(2)

Evaxion Biotech A/S, CVR No. DK 3176 2863, a company incorporated under the laws of Denmark with its registered office at Bredgade 34E, DK-1260 Copenhagen K, Denmark (“Evaxion”).

 

SSI and Evaxion may in the following be referred to individually as a “Party” and collectively as the “Parties”.

 

RECITALS

 

(A)

On the 30th of Novmber, 2020 the Parties have entered into a “CAF®09b Supply, Patent, Know How & Trademark License Agreement” (the “Agreement”);

 

(B)

Capitalized words used in this CTSA, but headers, shall have the meaning ascribed to them in the Agreement, including ascribed by defined term;

 

(C)

As per the Agreement SSI has undertaken to supply to Evaxion a certain stock of Licensed Adjuvant manufactured or to be manufactured by an Interim Supplier for Evaxion Vaccine development use; and,

 

(D)

Evaxion wishes to receive, and SSI undertakes to supply or have supplied, up to an agreed maximum amount of Licensed Adjuvant to cover Evaxion’s [****] program, which supply shall take place on the terms and conditions set out in this CTSA.

 

NOW THEREFORE, The Parties for good and valuable consideration in the form of the exchange of binding covenants below, do now in good faith agree as follows:

 

1.

Ordering of Licensed Adjuvant

 

1.1.

For the purpose of Evaxion carrying out a [****] Program GCP-sponsored by Evaxion or its designate in the Territory, SSI will supply to Evaxion up to [****] of the Licensed Adjuvant [****] to Evaxion under this CTSA.

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

Execution Copy

 

 

1.2.

The Licensed Adjuvant shall be GMP produced, tested and released in accordance with Annex 1 and 13 of Ph Eur GMP guidelines by SSI QA, as a manufacturing intermediate, in sterile capped vials. SSI shall provide Evaxion with a Certificate of Analysis, a Certificate of Compliance and a TSE/BSE statement for the Licensed Adjuvant delivered.

 

1.3.

Evaxion must place a binding order for delivery of the [****] prior to[****] . No more than [****] order (the “Order”) must be placed, i.e. that [****] of Licensed Adjuvant in excess of the initial Order placed, even if such initial Order[****].

 

1.4.

The Order will be accommodated by SSI delivering the stock of the Licensed Adjuvant in[****], the first delivery not to exceed [****] of the [****].

 

1.5.

The first delivery shall take place within [****] of Evaxion having placed the Order and the second delivery comprising the remaining supply to be made to complete the delivery of [****] as per the Order shall be delivered within [****] from the first delivery.

 

1.6.

Delivery of the [****] shall take place Ex Works SSI, Artillerivej 5, DK-2300 Copenhagen S (Incoterms 2010) in capped vials, each vial containing an Evaxion specified amount of Licensed Adjuvant.

 

1.7.

For delivery of the Order Evaxion shall compensate SSI for [****].

 

1.8.

Apart from the compensation of SSI [****] as specified in Clause 1.7 above, Evaxion shall [****] delivered pursuant to this CTSA.

 

1.9.

Labelling: The vials shall be supplied in sealed boxes labelled with ID, batch number and ‘Use-by Date’ to be updated according to ongoing stability studies at SSI which will continue until the batch is exhausted, but no more than five (5) years post the date of manufacture.

 

1.10.

The shelf life of the Licensed Adjuvant delivered under this CTSA will be min. 24 months upon delivery. SSI shall provide stability data from the ongoing stability study on the Licensed Adjuvant. If stability data justify extension of the shelf-life, SSI shall provide a QA signed document with extended shelf-life if requested by Evaxion

 

1.11.

If SSI fails to deliver the full [****] as per this CTSA or the delivered [****] is defective, Evaxion [****].

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

 

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2.

Evaxion Undertakings

 

2.1

Upon SSI’s delivery of the Licensed Adjuvant to Evaxion, the responsibility for handling of the Licensed Adjuvant shall pass to and be fully and finally

vested in Evaxion. Evaxions represents and warrants that the Licensed Adjuvant will only be released and administered to humans in accordance with all applicable and required clinical trial authorizations having been obtained by Evaxion or its designate.

 

2.2

Evaxion shall use the Licensed Adjuvant only for the purpose of its Vaccine development program and undertakes to use or destroy the Licensed Adjuvant before expiry of the Licensed Adjuvant shelf life date. Evaxion shall store the Licensed Adjuvant in a controlled environment as described by SSI.

 

2.3

Evaxion warrants that all Vaccine development activities involving the Licensed Adjuvant, including without limitation any Licensed Adjuvant use and any actions of staff handling Licensed Adjuvant, shall take place in accordance with a trial protocol approved by the competent authorities, all laws, regulations, rules, guidelines and procedures ensuring the rights of trial subjects and all other Third Parties involved in the trials, standards of safety, quality assurance, health care, protection, ethical and professional conduct, hygiene, rights to privacy and informed consent requirements, and other relevant standards, including generally accepted international standards for Good Clinical Practices (GCP).

 

2.4

With the exclusion of such liability as vested in SSI pursuant to Clause 4.2 below, Evaxion shall bear all liability arising from or related to Vaccine development activities, including without limitation any lack of protocol GCP compliance. Likewise, and with the exclusion of such liability as vested in SSI pursuant to Clause 4.2 below, Evaxion shall bear any and all liability for any use of the Licensed Adjuvant after delivery by SSI as per this CTSA.

 

2.5

With the exclusion of such liability as vested in SSI pursuant to Clause 4.2 below, SSI shall have no liability or responsibility for losses, damages or claims, including without limitation those arising from or related to the performance of the Vaccine development activities, protocol compliance and use of the Licensed Adjuvant and Evaxion shall hold SSI harmless against all such losses, damages, claims, costs and fees.

 

2.6

With the exception of the undertaking of SSI pursuant to Clause 1.1, Evaxion acknowledges that the Licensed Adjuvant is provided "as is" and without any representation or warranty, express or implied, of merchantability or fitness for administration together with or by incorporation in a Vaccine. With the exclusion of such liability as vested in SSI pursuant to Clause 4.2 below, Evaxion accepts responsibility for any damages or injuries resulting from its possession, use and administration of Licensed Adjuvant and undertakes to take out all required human clinical trial insurance cover programs required for the conduct to the development activity involving testing of a Vaccine.

 

 

 

 

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2.7

Prior to initiating Vaccine development activities, Evaxion shall confirm to SSI that an appropriate liability insurance program covering the trial subjects has been obtained under conditions and for a duration that are ordinary and reasonable for similar clinical trials or for the hospital to carry out self-insurance program in accordance with the Rules for the Hospital and the said national/local (Danish) legislation and / or covered by the rules for the hospital patient insurance cover in accordance with said national / local (Danish) legislation.

 

2.8

Evaxion shall maintain control of Licensed Adjuvant supplied by SSI and shall not, without SSI’s prior written consent, transfer any amount of the Licensed Adjuvant, or any part, portion or derivative thereof, to any Third Party other than to (a) its employees or any Affiliate directly involved in the Vaccine development program, or (c) clinical research organization undertaking through a binding, written contract with Evaxion to perform services for Evaxion within the framework of the Vaccine development program, all of which shall be bound by the confidentiality and restrictions of this CTSA and the Agreement.

 

2.9

Evaxion shall not reverse engineer or recreate the Licensed Adjuvant. All rights and title to the Licensed Adjuvant shall belong to SSI, which, without limitation to any rights that Evaxion is entitled to pursuant to the Agreement, includes the associated Patent Rights, Know-How and Trademark.

 

2.10

Nothing in this CTSA shall be interpreted as granting any rights to the Licensed Adjuvant that are not granted as per the Agreement.

 

2.11

Evaxion will permit SSI to audit compliance with this CTSA. Both Parties will promptly notify each other of any Regulatory Authority inspection, investigation or inquiry concerning the Vaccine development program, if involving the Licensed Adjuvant.

 

3.

Safety Reporting

 

3.1

Evaxion assumes, to the exclusion of SSI, all regulatory responsibilities relating to the Vaccine development, including without limitation the handling and processing of i) any serious adverse event reports, ii) expedited reporting of suspected unexpected serious adverse reactions (SUSARs), and iii) recording of Licensed Adjuvant abnormalities identified via laboratory analyses. Evaxion undertakes to send a copy of any Licensed Adjuvant related reports submitted to Regulatory Authorities, incl. Ethics Committees, to SSI by facsimile or e-mail addressed as follows:

 

 

 

Execution Copy

 

 

Statens Serum Institut

Clinical and Non-Clinical Development, Vaccine Development

Artillerivej 5

DK-2300 Copenhagen S

Denmark

e-mail: clin.pv@ssi.dk

Fax: +45 3268 8247

 

3.2

Evaxion agrees to send SAE line-listings on a yearly basis to SSI, until all Licensed Adjuvant supplied under this CTSA has been administered or destroyed and all development activities involving administration of the Licensed Adjuvant closed out. The first yearly SAE listing is expected one year after the first subject’s first visit.

 

3.3

Evaxion agrees to send an annual safety report to the Regulatory Authorities and Ethics Committees in agreement with national legislation with a contemporaneous copy to SSI throughout the clinical trial, and to send to SSI a copy of the final clinical trial report without undue delay after close-out. The report may only be used by SSI to validate use of the Licensed Adjuvant as an adjuvant and shall be considered Confidential Information vested in Evaxion.

 

3.4

Evaxion agrees to notify SSI of any safety concerns and safety information affecting the use of Licensed Adjuvant no later than two (2) business days after it has come to the awareness of Evaxion. Evaxion agrees to share all Vaccine safety data that may related to the Licensed Adjuvant with SSI comprising such information which otherwise will be included in an Investigator’s Brochure, provided however that Evaxion may provide a redacted copy without including proprietary information relating to the Pioneer Platform. The purpose of this Clause 3 is to ascertain that SSI can comply with its global safety reporting obligations related to the use of Licensed Adjuvant, including, without limitation, to ascertain whether a given reaction may be caused by the antigene interacting with the Licensed Adjuvant.

 

4.

Indemnification and Insurance

 

4.1

Evaxion shall, vis-à-vis SSI, retain all GCP-sponsor indemnification and insurance obligations related to the development of the Vaccine.

 

4.2

SSI shall have no liability or responsibility for any losses, damages, claims, costs and fees (collectively “Losses”) arising from or related to the performance of Vaccine development activities, and Evaxion shall hold SSI harmless against all such Losses, except to the extent that a Loss (i) comprises personal injury (including death) resulting from SSI’s negligent acts or omissions or breach of statutory duties or (ii), without limitation to (i), is suffered because the Licensed Adjuvant supplied under this CTSA is defective/non-compliant (e.g. not manufactured in compliance with applicable law or not complying to the specifications applicable for the manufacture). SSI shall be liable for Losses suffered as per (i) and/or (ii), and shall hold Evaxion harmless against all such Losses. For the avoidance of doubt, this CTSA shall not limit SSI’s liability as set out in Clause 16 of the Agreement.

 

 

 

 

 

Execution Copy

 

4.3

The limitation of liability set out in Clause 16 of the Agreement shall also apply to and limit any liability of any Party under this CTSA.

 

 

5.

Assignment & Dispute Resolution

 

5.1

This CTSA may only be assigned to the extent authorized by the Agreement.

 

5.2

The dispute resolution provisions of the Agreement shall apply equally to this CTSA.

 

 

6.

Term & Termination

 

6.1

This CTSA shall become effective as of the date of the last signature below and shall terminate upon SSI having delivered the ]*] as per this CTSA and the Agreement.

 

 

 

 

 

Execution Copy

 

IN WITNESS WHEREOF, The Parties have caused this Agreement to be accepted and executed by their duly authorized representatives as of the date first written above.

 

For and on behalf of   Statens Serum Institut:	For and on behalf of   Evaxion Biotech A/S:
Date   ...........................……………….	Date   ...............................…………
Signed   ...........................……………….	Signed   ...............................…………
Full Name   ...........................……………….	Full Name   ...............................…………
Title   ............................………………	Title   ...............................…………
Date   ...........................……………….	Date   ...............................…………
Signed   ...........................……………….	Signed   ...............................…………
Full Name   ...........................……………….	Full Name   ...............................…………
Title   ............................………………	Title   ..............................…………

 

 

 

 

 

 

Exhibit 10.2

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

Contract number (FI No): [****]

 

Serapis No: [****]

 

EVAXION BIOTECH (IDFF)

 

Finance Contract

 

between the

 

European Investment Bank

 

and

 

Evaxion Biotech A/S

 

Luxembourg/Copenhagen 6 August 2020

 

EXECUTION VERSION

 

 

Article 1	8
1.1      Interpretation	8
Article 2	16
2.1      Amount of Credit	16
2.2      Disbursement procedure	16
2.2.1   Tranches	16
2.2.2   Disbursement Offer	16
2.2.3   Disbursement Acceptance	17
2.3      Disbursement Account	17
2.4      Currency of disbursement	17
2.5      Conditions of Disbursement	17
2.5.1   Initial Documentary Conditions Precedent	17
2.5.2   All Tranches – Documentary Conditions Precedent	17
2.5.3   All Tranches – Other Conditions	18
2.5.4   Tranche A – Additional Conditions Precedent	18
2.5.5   Tranche B – Additional Conditions Precedent	18
2.5.6   Tranche C – Additional Conditions Precedent	18
2.6      Cancellation	19
2.7      Fee for cancellation of an Accepted Tranche	19
2.8      Cancellation after expiry of the Credit	19
2.9      Drop Dead Fee	20
2.10    Sums due under Article 2	20
Article 3	20
3.1      Amount of Loan	20
3.2      Currency of repayment, interest and other charges	20
3.3      Confirmation by the Bank	20
Article 4	20
4.1      Fixed Rate Tranches	20
4.2      Payment in Kind (PIK) Interest	20
4.3      Warrants	21
4.4      Interest on overdue sums	21
Article 5	21
5.1      Normal repayment	21
5.1.1   Single instalment – Tranche A and Tranche B	21
5.1.2   Repayment by instalments – Tranche C	21
5.2      Voluntary prepayment	22
5.2.1   Prepayment option	22
5.2.2   Prepayment Fee	22
5.2.3   Prepayment mechanics	22
5.3      Compulsory prepayment	22
5.3.1   Cost Reduction	22
5.3.2   Change Events	22
5.3.3   Illegality	23
5.3.4   Disposals	23
5.3.5   Pari Passu to Non-EIB Financing	23
5.3.6   Prepayment Fee	23
5.3.7   Prepayment mechanics	23
5.4      General	23

 

 

Article 6	24
6.1        Day count convention	24
6.2        Time and place of payment	24
6.3        No set-off by the Borrower	24
6.4        Disruption to Payment Systems	24
6.5        Application of sums received	25
6.5.1     General	25
6.5.2     Partial payments	25
6.5.3     Allocation of sums related to Tranches	25
Article 7	25
Article 8	26
8.1        Taxes, duties and fees	26
8.2        Other charges	26
8.3        Increased costs, indemnity and set-off	26
Article 9	27
9.1        Right to demand repayment	27
9.2        Other rights at law	28
9.3        Prepayment Fee	28
9.4        Non-Waiver	28
Article 10	28
10.1      Governing Law	28
10.2      Jurisdiction	29
10.3      Place of performance	29
10.4      Evidence of sums due	29
10.5      Entire Agreement	29
10.6      Invalidity	29
10.7      Amendments	29
10.8      Counterparts	29
10.9      Assignment and transfer by the Bank	29
Article 11	30
11.1      Notices	30
11.1.1   Form of notice	30
11.1.2   Addresses	31
11.1.3   Demand after notice to remedy	31
11.2      English language	31
Schedule A	33
Investment Specification and Reporting	33

 

 

A.1       Technical Description	33
A.2       Information Duties	33
3.          Information on the end of works and first year of operation	33
Schedule B	35
Definitions of EURIBOR	35
Schedule C	36
Form of Disbursement Offer/Acceptance	36
Schedule D	38
Form of Drawdown Certificate	38
Schedule E	39
Form of Compliance Certificate	39
Schedule F	40
Part A – Initial Documentary Conditions Precedent	40
Part B – Guarantor Conditions Precedent	41
Schedule G	43
Representations and Warranties	43
1.          Authorisations and Binding Obligations	43
2.          No default or other adverse event	43
3.          No proceedings	43
4.          Security	43
5.          Ranking	44
6.          Anti-Corruption	44
7.          Accounting and Tax	44
8.          Information provided	44
9.          Exclusion criteria	45
10.        No indebtedness	45
11.        No Immunity	45
12.        Pensions	46
13.        Good title to assets	46
14.        Governing law and enforcement	46
Schedule H	47
General Undertakings	47
1.          Use of Loan	47
2.          Completion of Investment	47
3.          Procurement procedure	47
4.          Compliance with laws	47
5.          Sanctions	47
6.          Data Protection	47
7.          Environment	47
8.          Integrity	48

 

 

9.         Disposal of assets	48
10.       Maintenance of assets	49
11.       Insurances	49
12.       Change in business	49
13.       Merger	49
14.       Books and records	49
15.       Ownership	49
16.       Acquisitions	50
17.       Indebtedness	51
18.       Guarantees	51
19.       Hedging	52
20.       Restrictions on distributions	52
21.       Restrictions on loans	52
22.       Restrictions on intercompany loans	52
23.       Intellectual Property Rights	53
24.       Maintenance of Status	53
25.       Negative pledge	53
26.       Other Undertakings	54
27.       Clauses by inclusion (most favoured nation)	54
28.       Succession plan	54
29.       Pari passu ranking	54
Schedule I	55
Information and Visits	55
1.         Information concerning the Investment	55
2.         Information concerning the Borrower	56
3.         Visits by the Bank	56
4.         Disclosure and publication	57
5.         Confidential information	57

 

 

THIS CONTRACT IS MADE ON 6 AUGUST 2020 BETWEEN:

 

The European Investment Bank having its seat at 100 blvd Konrad Adenauer, Luxembourg, L-2950 Luxembourg, represented by _______________________		(the "Bank")
and
Evaxion Biotech A/S (company registration number (CVR) 31762863), a public limited liability company incorporated in Denmark, having its registered office at Bredgade 34 E, DK-1260 Copenhagen, Denmark., represented by Lars Staal Wegner and Niels Iversen Møller		(the "Borrower")

 

 

WHEREAS:

 

(A)

The Borrower has stated that it is undertaking a research and development project relating to the development of the AI technology platform for drug discovery and to the development activities carried out by the Borrower for assets targeting infectious diseases in Denmark as more particularly described in the technical description (the "Technical Description") set out in Schedule A (Investment Specification and Reporting) (the "Investment"). The total cost of the Investment, as estimated by the Bank, is EUR [****].

 

(B)

The Bank, considering that the financing of the Investment falls within the scope of its functions, agreed to provide the Borrower with a credit in an amount of EUR 20,000,000 (twenty million euro) under this Finance Contract (the "Contract") to finance the Investment; provided that the amount of the loan hereunder shall not, in any case, exceed 50% (fifty per cent.) of the cost of the Investment.

 

(C)

The Credit falls under a joint initiative between the Bank and the European Commission, which is intended as a new Bank financing instrument, to finance inter alia research projects and research infrastructure under the Horizon 2020 framework programme of the European Union for Research and Technological Development (2014-2020).

 

(D)

The statute of the Bank provides that the Bank shall ensure that its funds are used as rationally as possible in the interests of the European Union; and, accordingly, the terms and conditions of the Bank's loan operations must be consistent with relevant policies of the European Union.

 

(E)

The Bank considers that access to information plays an essential role in the reduction of environmental and social risks, including human rights violations, linked to the projects it finances and has therefore established its transparency policy, the purpose of which is to enhance the accountability of the Bank’s group towards its stakeholders and the citizens of the European Union in general.

 

(F)

The processing of personal data shall be carried out by the Bank in accordance with applicable EU Law on the protection of individuals with regard to the processing of personal data by the European Union institutions and bodies and on the free movement of such data.

 

(G)

The Bank supports the implementation of international and EU standards in the field of anti-money laundering and countering the financing of terrorism and promotes tax good governance standards. It has established policies and procedures to avoid the risk of misuse of its funds for purposes which are illegal or abusive in relation to applicable laws. The EIB Group statement on tax fraud, tax evasion, tax avoidance, aggressive tax planning, money laundering and financing of terrorism is available on the Bank’s website and offers further guidance to EIB contracting counterparties.

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

It is hereby agreed as follows:

 

ARTICLE 1

 

Interpretation and definitions

 

1.1

Interpretation

 

In this Contract:

 

(a)

references to Articles, Recitals, Schedules and Paragraphs are, save if explicitly stipulated otherwise, references respectively to articles of, and recitals, schedules and paragraphs of schedules to, this Contract. All Recitals and Schedules form part of this Contract. Articles, Schedules and Paragraphs headings are for ease of reference only;

 

(b)

references to “law" or “laws” mean (a) any applicable law and any applicable treaty, constitution, statute, legislation, decree, normative act, rule, regulation, judgement, order, writ, injunction, determination, award or other legislative or administrative measure or judicial or arbitral decision in any jurisdiction which is binding or applicable case law, and (b) EU Law;

 

(c)

references to "applicable law", "applicable laws" or "applicable jurisdiction" means (a) a law or jurisdiction applicable to the Borrower or any other Obligor (as the context requires), its rights and/or obligations (in each case arising out of or in connection with the Finance Documents), its capacity and/or assets and/or the Investment; and/or, as applicable, (b) a law or jurisdiction (including in each case the Bank’s Statute) applicable to the Bank, its rights, obligations, capacity and/or assets;

 

(d)

references to a provision of law are references to that provision as amended or re-enacted;

 

(e)

references to any Finance Document or any other agreement or instrument are references to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

 

(f)

references to "acting in concert" means acting together pursuant to an agreement or understanding (whether formal or informal);

 

(g)

references to "assets" include present and future properties, revenues and rights of every description;

 

(h)

references to "guarantee" mean (other than in a Guarantee Agreement) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

 

(i)

references to "indebtedness" include any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

(j)

references to a "person" include any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

 

(k)

references to a document in "agreed form" is a document which is previously agreed in writing by or on behalf of the Borrower and the Bank or, if not so agreed, is in the form specified by the Bank;

 

 

(l)

where it relates to an Obligor which is incorporated in Denmark, a reference to:

 

(i)

a "winding up", "administration" or "dissolution" includes konkurs and rekonstruktion;

 

(ii)

a "receiver" or "administrator" includes a kurator and a rekonstruktør;

 

(iii)

"negligently" means simpel uagtsomhed or any other category of liability whatsoever;

 

(i)

"merger" includes fusion; and

 

(ii)

"demerger" includes spaltning.

 

(m)

words and expressions in plural shall include singular and vice versa;

 

(n)

a Default (other than an Event of Default) is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived;

 

(o)

a time of day is a reference to Luxembourg time, unless otherwise specified; and

 

(p)

terms defined in the GDPR (as defined below), including the terms “controller”, “data subject”, “personal data”, “processing”, and “processor”, have the same meanings when used in Recital (F) or Schedule H6 of this Contract.

 

Definitions

 

In this Contract:

 

"Accepted Tranche" means a Tranche in respect of a Disbursement Offer which has been duly accepted by the Borrower in accordance with its terms on or before the Disbursement Acceptance Deadline.

 

"Authorisation" means an authorisation, permit, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

 

"Authorised Signatory" means a person authorised to sign individually or jointly (as the case may be) Disbursement Acceptances on behalf of the Borrower and named in the most recent List of Authorised Signatories and Accounts received by the Bank prior to the receipt of the relevant Disbursement Acceptance.

 

"Business Day" means a day (other than a Saturday or Sunday) on which the Bank and commercial banks are open for general business in Luxembourg and Copenhagen (Denmark).

 

“Cancellation Fee” means, in relation to the cancellation of an Accepted Tranche by the Borrower, under sub-paragraph (a) of Article 2.7 (Fee for cancellation of an Accepted Tranche), or in relation to an amount cancelled by the Bank under sub-paragraphs (b) or (c) of Article 2.7 (Fee for cancellation of an Accepted Tranche), a fee of 6% (six hundred basis points) of the cancelled amount.

 

"Change in the Beneficial Ownership" means a change in the ultimate ownership or control of the Borrower according to the definition of "beneficial owner" set out in article 3(6) of Directive 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, as amended, supplemented or restated.

 

"Change-of-Control Event" means:

 

(a)

any person or group of persons acting in concert (other than Andreas Holm Mattsson and Niels Iversen Møller) gains Control of the Borrower or of any entity directly or ultimately Controlling the Borrower; or

 

(b)

Andreas Holm Mattsson and Niels Iversen Møller together cease to own and control directly or indirectly more than [****] of the voting rights or economic interest of the Borrower or be the beneficial owners directly or indirectly through wholly owned subsidiaries of more than [****] of the issued share capital of the Borrower.

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

"Change-of-Law Event" means the enactment, promulgation, execution or ratification of or any change in or amendment to any law, rule or regulation (or in the application or official interpretation of any law, rule or regulation) that occurs after the date of this Contract and which, in the reasonable opinion of the Bank, would materially impair an Obligor's ability to perform its obligations under the Finance Documents.

 

"Compliance Certificate" means a certificate substantially in the form set out in Schedule E (Form of Compliance Certificate).

 

"Contract Number" shall mean the Bank generated number identifying this Contract and indicated on the cover page of this Contract after the letters "FI N°".

 

"Control" means with respect to a given entity, (i) owning, directly or indirectly, more than 50% (fifty per cent.) of the shares of that entity; (ii) the power to cast, or control the casting of, votes corresponding to more than 50% (fifty per cent.) of the issued voting share capital of that entity; (iii) the power to appoint or remove all, or the majority, of the directors or other equivalent officers of that entity; or (iv) the power to give directions with respect to the operating and financial policies of that entity with which the directors or other equivalent officers of such entity are obliged to comply, whether through the ownership of voting capital, by contract or otherwise, and “Controlling” and “Controlled” have corresponding meanings.

 

"Credit" has the meaning given to it in Article 2.1 (Amount of Credit).

 

"Criminal Offence" means any of the following criminal offences as applicable: tax crimes (as referred to in the directive (EU) 2015/849 of 20 May 2015), fraud, corruption, coercion, collusion, obstruction, money laundering, financing of terrorism or any illegal activity that may affect the financial interests of the EU, according to applicable laws.

 

"Default" means an Event of Default or any event or circumstance specified in Article 9 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under this Contract or any combination of any of the foregoing) be an Event of Default.

 

"Disbursement Acceptance" means a copy of the Disbursement Offer duly countersigned by the Borrower.

 

"Disbursement Acceptance Deadline" means the date and time of expiry of a Disbursement Offer as specified therein.

 

"Disbursement Account" means, in respect of each Tranche, the bank account set out in the most recent List of Authorised Signatories and Accounts.

 

"Disbursement Date" means the date on which disbursement of a Tranche is made by the Bank.

 

"Disbursement Offer" means a letter substantially in the form set out in Schedule C (Form of Disbursement Offer/Acceptance).

 

"Dispute" has the meaning given to it in Article 10.2 (Jurisdiction).

 

"Disruption Event" means either or both of:

 

(a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Finance Documents; or

 

(b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of either the Bank or the Borrower, preventing that party from:

 

(i)

performing its payment obligations under the Finance Documents; or

 

(ii)

communicating with other parties in accordance with the terms of the Finance Documents,

 

and which disruption (in either such case as per Paragraph (a) or (b) above) is not caused by, and is beyond the control of, the party whose operations are disrupted.

 

 

 

"Drop Dead Fee" has the meaning given to it in Article 2.9 (Drop Dead Fee).

 

"EBITDA" means, in respect of any Relevant Period, the consolidated operating profit of the Group before taxation (excluding the results from discontinued operations):

 

(a)

before deducting any interest, commission, fees, discounts, prepayment fees, premiums or charges and other finance payments whether paid, payable or capitalised by any Group Company (calculated on a consolidated basis) in respect of that Relevant Period;

 

(b)

not including any accrued interest owing to any Group Company;

 

(c)

after adding back any amount attributable to the amortisation or depreciation of assets of members of the Group;

 

(d)

before taking into account any Exceptional Items;

 

(e)

after deducting the amount of any profit (or adding back the amount of any loss) of any Group Company which is attributable to minority interests;

 

(f)

plus or minus the Group's share of the profits or losses (after finance costs and tax) of entities which are not Group Companies;

 

(g)

before taking into account any unrealised gains or losses on any financial instrument (other than any derivative instrument which is accounted for on a hedge accounting basis);

 

(h)

before taking into account any pension items; and

 

(i)

before taking into account any gain arising from an upward revaluation of any asset,

 

in each case, to the extent added, deducted or taken into account, as the case may be, for the purposes of determining operating profits of the Group before taxation.

 

"Environment" means the following, insofar as they affect human health or social well-being:

 

(a)

fauna and flora;

 

(b)

soil, water, air, climate and the landscape; and

 

(c)

cultural heritage and the built environment,

 

and includes, without limitation, occupational and community health and safety.

 

"Environmental Approval" means any Authorisation required by Environmental Law.

 

"Environmental Claim" means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.

 

"Environmental Law" means EU Law including principles and standards, and national laws and regulations, of which a principal objective is the preservation, protection or improvement of the Environment.

 

"EU Directives" means the directives of the European Union.

 

"EU Law" means the acquis communautaire of the European Union as expressed through the Treaties of the European Union, the regulations, the EU Directives, delegated acts, implementing acts, and the case law of the Court of Justice of the European Union.

 

"EUR" or "euro" means the lawful currency of the Member States of the European Union which adopt or have adopted it as their currency in accordance with the relevant provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union or their succeeding treaties.

 

"EURIBOR" has the meaning given to it in Schedule B (Definition of EURIBOR).

 

"Event of Default" means any of the circumstances, events or occurrences specified in Article 9 (Events of Default).

 

"Exceptional Items" means any material items of an unusual or non-recurring nature which represent gains or losses including those arising on:

 

 

(a)

the restructuring of the activities of an entity and reversals of any provisions for the cost of restructuring;

 

(b)

disposals, revaluations, write downs or impairment of non-current assets or any reversal of any write down or impairment;

 

(c)

disposals of assets associated with discontinued operations; and

 

(d)

any other examples of “exceptional items” (as such term has the meaning attributed to it in IFRS).

 

"Fee Letter" means the letter from the Bank to the Borrower dated 8 May 2020.

 

"Final Availability Date" means the day falling 36 months after the date of this Contract.

 

"Finance Documents" means this Contract, any Guarantee Agreement, the Warrant Agreement, the Fee Letter and any other document designated as a “Finance Document” by the Borrower and the Bank.

 

"Finance Lease" means any lease or hire purchase contract which would, in accordance with IFRS in force prior to 1 January 2019, be treated as a finance or capital lease.

 

"Fixed Rate" means:

 

(a)

for Tranche A, 3% (three hundred basis points) per annum;

 

(b)

for Tranche B, 3% (three hundred basis points) per annum; and

 

(c)

for Tranche C, 5% (five hundred basis points) per annum.

 

"Fixed Rate Tranche" means each of Tranche A, Tranche B and Tranche C.

 

"GAAP" means generally accepted accounting principles in Denmark, including IFRS.

 

"GDPR" means General Data Protection Regulation (EU) 2016/679.

 

"Group" means the Group Companies, taken together as a whole.

 

"Group Company" means the Borrower and its Subsidiaries.

 

"Guarantee Agreement" means a guarantee and indemnity agreement in form and substance satisfactory to the Bank entered into or to be entered into by a Guarantor as guarantor and the Bank as beneficiary.

 

"Guarantor" means each Material Subsidiary which enters into a Guarantee Agreement in accordance with sub-paragraph (b) of Paragraph 18 (Guarantees) of Schedule H (General Undertakings).

 

"Horizon 2020 Legal Basis" means the Regulation 1291/2013 of the European Parliament and of the Council of 11 December 2013 establishing Horizon 2020 and Council Decision of 3 December 2013 establishing the specific programme implementing Horizon 2020.

 

"IFRS" means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

 

"Indebtedness" means any:

 

(a)

obligations for borrowed money and debit balances at banks or other financial institutions;

 

(b)

indebtedness under any acceptance credit;

 

(c)

indebtedness under any bond, debenture, note or similar instrument;

 

(d)

instrument under any bill of exchange;

 

(e)

indebtedness in respect of any interest rate or currency swap or forward currency sale or purchase or other form of interest or currency hedging transaction (including without limit caps, collars and floors);

 

(f)

indebtedness under any Finance Lease;

 

(g)

indebtedness (actual or contingent) under any guarantee, bond security, indemnity or other agreement;

 

 

(h)

indebtedness (actual or contingent) under any instrument entered into for the purpose of raising finance;

 

(i)

indebtedness in respect of a liability to reimburse a purchaser of any receivables sold or discounted in the event that any amount of those receivables is not paid;

 

(j)

indebtedness arising under a securitisation; or

 

(k)

other transaction which has the commercial effect of borrowing.

 

"Intellectual Property Rights" means intellectual property of every designation (including, without limitation, patents, utility patents, copyrights, design rights, trademarks, service marks, business names, inventions and know how) (which may now or in the future subsist) whether capable of registration or not, and the benefit of all applications and rights to use such assets of each Group Company (which may now or in the future subsist).

 

"Investment" has the meaning given to that term in Recital (A).

 

"Lead Organisation" means the European Union, the United Nations and international standard setting organisations including the International Monetary Fund, the Financial Stability Board, the Financial Action Task Force, the Organisation for Economic Cooperation and Development and the Global Forum on Transparency and Exchange of Information for Tax Purposes and any successor organisations.

 

"List of Authorised Signatories and Accounts" means a list, in form and substance satisfactory to the Bank, signed by an authorised signatory of the Borrower setting out: (i) the Authorised Signatories, accompanied by evidence of signing authority of the persons named on the list (by way of board resolutions; or the articles of association and an online up-to-date transcript from the Danish Business Authority in respect of the Borrower; or a power of attorney) and specifying if they have individual or joint signing authority, (ii) the specimen signatures of the Authorised Signatories, and (iii) the bank account(s) to which disbursements may be made under this Contract (specified by IBAN code if the country is included in the IBAN Registry published by SWIFT, or in the appropriate account format in line with the local banking practice), BIC/SWIFT code of the bank and the name of the bank account(s) beneficiary.

 

"Loan" means the aggregate of the amounts disbursed from time to time by the Bank under this Contract.

 

"Loan Outstanding" means the aggregate of the amounts disbursed from time to time by the Bank under this Contract that remains outstanding.

 

"Material Adverse Change" means, any event or change of condition, which, in the reasonable opinion of the Bank, has a material adverse effect on:

 

(a)

the ability of any Obligor to perform its respective obligations under the Finance Documents;

 

(b)

the business, operations, assets, property, condition (financial or otherwise) or prospects of any Obligor or the Group as a whole; or

 

(c)

the legality, validity or enforceability of, or the effectiveness or ranking of, or the value of any Security granted to the Bank, or the rights or remedies of the Bank under the Finance Documents.

 

"Material Subsidiary" means any Subsidiary from time to time, whose gross revenues, total assets or EBITDA represents not less than 5 % of (i) the consolidated gross revenues of the Group or, (ii) the Total Assets, or, (iii) as the case may be, the consolidated EBITDA of the Group, as calculated based on the then latest consolidated audited accounts of the Group, provided that if a Subsidiary is acquired after the end of the financial period to which the latest consolidated audited accounts relate, those accounts shall be adjusted as if that Subsidiary had been shown in them by reference to its then latest consolidated audited accounts.

 

"Maturity Date" means, for each Tranche, the last or sole Repayment Date of that Tranche as specified in the relevant Disbursement Offer, being 6 (six) years from the Disbursement Date of the relevant Tranche.

 

 

"Non-EIB Financing" includes any loan (save for the Loan and any other direct loans from the Bank to the Borrower (or any other Group Company) or the Guarantor), credit bond or other form of financial indebtedness or any obligation for the payment or repayment of money originally granted to the Borrower (or any other Group Company) or the Guarantor) for a term of more than 3 (three) years.

 

"Obligor" means the Borrower and any Guarantor.

 

"Payment Date" means the annual dates specified in the Disbursement Offer until and including the Maturity Date, save that, in case any such date is not a Relevant Business Day, it means the following Relevant Business Day, without adjustment to the interest due under Article 4.1 (Fixed Rate Tranches) except for those cases where a payment is made as a single instalment in accordance with Article 5.1.1 (Single instalment – Tranche A and Tranche B), and to the final interest payment only, when it shall mean the preceding Relevant Business Day, with adjustment to the interest due under Article 4.1 (Fixed Rate Tranches).

 

"Permitted Guarantees" means each and every guarantee permitted in accordance with Paragraph 18 (Guarantees) of Schedule H (General Undertakings).

 

"Permitted Hedging" has the meaning given to such term in Paragraph 19 (Hedging) of Schedule H (General Undertakings).

 

"Permitted Indebtedness" means Indebtedness of the Borrower and/or any Group Company which is permitted in accordance with Paragraph 17 (Indebtedness) of Schedule H (General Undertakings).

 

"Permitted Security" means Security of the Borrower and/or any Group Company which is permitted in accordance with sub-paragraph (c) of Paragraph 25 (Negative pledge) of Schedule H (General Undertakings).

 

"PIK Interest Rate" means:

 

(a)

for Tranche A, 4% (four hundred basis points);

 

(b)

for Tranche B, 3% (three hundred basis points); and

 

(c)

for Tranche C, 0% (no basis points).

 

"Prepayment Amount" means the amount of a Tranche to be prepaid by the Borrower in accordance with Articles 5.2 (Voluntary prepayment), 5.3 (Compulsory prepayment) or 9.1 (Right to demand repayment).

 

"Prepayment Date" means the date on which the Borrower proposes or is requested by the Bank, as applicable, to effect prepayment of a Prepayment Amount.

 

"Prepayment Event" means any of the events described in Article 5.3 (Compulsory Prepayment).

 

"Prepayment Fee" means, in relation to a Prepayment Amount in respect of a Tranche, a fee as follows:

 

(a)

a fee o f[****] of the Prepayment Amount if the Prepayment Date is after the relevant Disbursement Date but before or on the 1st anniversary of such Disbursement Date;

 

(b)

a fee of [****] of the Prepayment Amount if the Prepayment Date is after the 1st anniversary of such Disbursement Date but before or on the 2nd anniversary of such Disbursement Date;

 

(c)

a fee of [****] of the Prepayment Amount if the Prepayment Date is after the 2nd anniversary of such Disbursement Date but before the Maturity Date,

 

with such fee being payable on the applicable Prepayment Date.

 

"Prepayment Notice" means a written notice from the Bank to the Borrower in accordance with Article 5.2.3 (Prepayment mechanics).

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

"Prepayment Request" means a written request from the Borrower to the Bank to prepay all or part of the Loan Outstanding, in accordance with Article 5.2.1 (Prepayment option).

 

"Relevant Business Day" means a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007 (TARGET2) is open for the settlement of payments in EUR.

 

"Relevant Period" means each period of 12 (twelve) months ending on or about the last day of each financial year and each period of 12 (twelve) months ending on or about the last day of each financial quarter.

 

"Repayment Date" shall mean each Payment Date specified in the Disbursement Offer for the repayment of a Tranche in accordance with Article 5.1 (Normal repayment).

 

"Repeating Representations" means each of the representations set out in Schedule G (Representations and Warranties) other than those Paragraphs thereof which are identified with the words "(Non-repeating)" at the end of the Paragraphs.

 

"Security" means any mortgage, pledge, lien, charge, assignment, hypothecation, or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

 

"Senior Management Change" means that any Senior Management Personnel has ceased to be actively involved in the management of the Borrower without the Bank having given its prior written consent to such a change.

 

"Senior Management Personnel" means each of Lars Staal, CEO; Thomas Bogenrieder, CMO; and Tom Wylonis, Chairman of the Board.

 

"Subsidiary" means an entity of which the Borrower has direct or indirect control or owns directly or indirectly more than 50% (fifty per cent) of the voting capital or similar right of ownership and 'control' for this purpose means the power to direct the management and the policies of the entity, whether through the ownership of voting capital, by contract or otherwise.

 

"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

 

"Technical Description" has the meaning given to it in Recital (A).

 

"Total Assets" means the total consolidated assets of the Group, as shown in the Borrower’s latest consolidated financial statements, as at the end of any Relevant Period.

 

"Tranche" means each disbursement made or to be made under this Contract consisting of Tranche A, Tranche B and Tranche C. In the event that no Disbursement Acceptance has been received, Tranche shall mean a Tranche as offered under Article 2.2.2 (Disbursement Offer).

 

"Tranche A" means the first Tranche in the amount set out in paragraph (a) of Article 2.2.1 (Tranches), in relation to which a pro rata share of the Warrants are granted to the bank in accordance with the Warrant Agreement, a Fixed Rate shall be paid in accordance with Article 4.1 (Fixed Rate Tranches) and a PIK Interest Rate shall be paid in accordance with Article 4.2 (Payment in Kind (PIK) Interest).

 

"Tranche B" means the second Tranche in the amount set out in paragraph (b) of Article 2.2.1 (Tranches), in relation to which a pro rata share of the Warrants are granted to the bank in accordance with the Warrant Agreement and a Fixed Rate shall be paid in accordance with Article 4.1 (Fixed Rate Tranches) and a PIK Interest Rate shall be paid in accordance with Article 4.2 (Payment in Kind (PIK) Interest).

 

"Tranche C" means the third Tranche in the amount set out in paragraph (c) of Article 2.2.1 (Tranches), in relation to which a pro rata share of the Warrants are granted to the bank in accordance with the Warrant Agreement and a Fixed Rate shall be paid in accordance with Article 4.1 (Fixed Rate Tranches).

 

 

"Voluntary Non-EIB Prepayment" means a voluntary prepayment by any Group Company or the Guarantor (for the avoidance of doubt, prepayment shall include a repurchase, redemption or cancellation where applicable) of a part or the whole of any Non-EIB Financing where:

 

(a)

such prepayment is not made within a revolving credit facility (save for the cancellation of the revolving credit facility); or

 

(b)

such prepayment is not made out of the proceeds of a loan or other indebtedness having a term at least equal to the unexpired term of the Non-EIB Financing prepaid.

 

"Warrant Agreement" means a warrant agreement on terms satisfactory to the Bank to be entered into between the Borrower, certain shareholders of the Borrower and the Bank, pursuant to which warrants over shares in the Borrower corresponding to 6% (six per cent.) of the fully diluted share capital of the Borrower (at the time of signing this Contract) are to be granted free of charge and fully vested to the Bank pro rata with the disbursement of each Tranche in accordance with Clause 1.3 therein, whereby the Bank at any time is entitled to subscribe for shares in the Borrower by cash contribution on terms satisfactory to the Bank to be set out in the warrant terms attached as schedule 1.1 thereto.

 

"Warrants" has the meaning giving to it in the Warrant Agreement.

 

 

Article 2 

 

Credit and Disbursements

 

2.1

Amount of Credit

 

By this Contract, the Bank establishes in favour of the Borrower, and the Borrower accepts, a credit in an amount of EUR 20,000,000 (twenty million euro) for the financing of the Investment to be divided into Tranche A, Tranche B and Tranche C (the "Credit").

 

2.2

Disbursement procedure

 

2.2.1

Tranches

 

The Bank shall disburse the Credit in Euros in 3 (three) Tranches, as set out below:

 

(a)

Tranche A, in an amount of EUR 7,000,000 (seven million euro);

 

(b)

Tranche B, in an amount of EUR 6,000,000 (six million euro); and

 

(c)

Tranche C, in an amount of EUR 7,000,000 (seven million euro).

 

Each Tranche can only be drawn in full.

 

2.2.2

Disbursement Offer

 

Upon request by the Borrower and subject to Article 2.5 (Conditions of Disbursement), provided that no event mentioned in sub-paragraph (b) of Article 2.6 (Cancellation) has occurred and is continuing, the Bank shall send to the Borrower a Disbursement Offer for the disbursement of a Tranche. The latest time for receipt by the Borrower of a Disbursement Offer is 10 (ten) days before the Final Availability Date. The Disbursement Offer shall specify:

 

(a)

the Tranche to be disbursed;

 

(b)

the amount of the Tranche;

 

(c)

the Disbursement Date, which shall be a Relevant Business Day, falling at least 10 (ten) days after the date of the Disbursement Offer and on or before the Final Availability Date;

 

(d)

the interest rate basis of the Tranche, namely:

 

(i)

the Fixed Rate applicable to such Tranche;

 

(ii)

the PIK Interest Rate applicable to such Tranche (in respect of Tranche A and Tranche B); and

 

 

(iii)

the Payment Dates and interest periods;

 

(e)

the terms and frequency for repayment of principal (bullet in respect of Tranche A and Tranche B and annual instalments in respect of Tranche C);

 

(f)

first Repayment Date and the Maturity Date;

 

(g)

the Disbursement Acceptance Deadline; and

 

(h)

the relevant number of Warrants to be granted in relation to the Tranche.

 

2.2.3

Disbursement Acceptance

 

(a)

The Borrower may accept a Disbursement Offer by delivering a Disbursement Acceptance to the Bank no later than the Disbursement Acceptance Deadline. The Disbursement Acceptance shall be signed by an Authorised Signatory with individual representation rights or 2 (two) or more Authorised Signatories with joint representation right and shall specify the Disbursement Account to which disbursement of the Tranche should be made in accordance with Article 2.3 (Disbursement Account) and as set out in the most recent List of Authorised Signatories and Accounts.

 

(b)

If a Disbursement Offer is duly accepted by the Borrower in accordance with its terms on or before the Disbursement Acceptance Deadline, and provided the conditions in Article 2.5.3 (All Tranches – Other Conditions) are met, the Bank shall make the Accepted Tranche available to the Borrower in accordance with the relevant Disbursement Offer and subject to the terms and conditions of this Contract.

 

(c)

The Borrower shall be deemed to have refused any Disbursement Offer which has not been duly accepted in accordance with its terms on or before the Disbursement Acceptance Deadline, in which case the Tranche shall not be made available to the Borrower by the Bank, and the Credit shall not be affected.

 

2.3

Disbursement Account

 

(a)

Disbursement shall be made to the Disbursement Account specified in the relevant Disbursement Acceptance, provided that such Disbursement Account is acceptable to the Bank in accordance with Paragraph (d) of Article 6.2 (Time and place of payment).

 

(b)

Only one Disbursement Account may be specified for each Tranche.

 

2.4

Currency of disbursement

 

The Bank shall disburse each Tranche in EUR.

 

2.5

Conditions of Disbursement

 

2.5.1

Initial Documentary Conditions Precedent

 

Subject to Article 2.5.2 (All Tranches – Documentary Conditions Precedent) below, no Disbursement Offer will be provided by the Bank under this Contract unless the Bank has confirmed that it has received all of the documents and other evidence listed in Part A of Schedule F (Initial Documentary Conditions Precedent) in form and substance satisfactory to it.

 

2.5.2

All Tranches – Documentary Conditions Precedent

 

Subject to Article 2.5.1 (Initial Documentary Conditions Precedent) above, no Disbursement Offer, including the first Disbursement Offer, will be provided by the Bank under this Contract unless the Bank has confirmed that it has received, in form and substance satisfactory to it:

 

(a)

a certificate from the Borrower in the form of Schedule D (Form of Drawdown Certificate), signed by an authorised signatory of the Borrower and dated no earlier than the date falling 14 (fourteen) days before the Disbursement Date;

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(b)

[****]

 

(c)

A certificate of the Borrower signed by two of its directors (one of whom shall be the chief financial officer) which confirms that the Borrower has sufficient resources to pay its debts as they fall due for a period of at least [****] months from the Disbursement Date not taking into account the disbursement of the proposed Tranche, together with an up-to-date transcript from the Danish Business Authority in respect of the Borrower showing the status of the Borrower registered as "normal" with no adverse registrations against it.

 

2.5.3

All Tranches – Other Conditions

 

The Bank will only be obliged to make any Accepted Tranche available to the Borrower if on the Disbursement Date for the proposed Tranche:

 

(a)

the Repeating Representations are correct in all respects;

 

(b)

no Default is continuing; and

 

(c)

no event or circumstance has occurred and is continuing which constitutes or would with the expiry of a grace period and/or the giving of notice under this Contract constitute a Prepayment Event other than pursuant to Article 5.3.1 (Cost Reduction),

 

or would, in each case, result from the disbursement of the proposed Tranche.

 

2.5.4

Tranche A – Additional Conditions Precedent

 

Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of Tranche A unless the Bank has confirmed that it has received in form and substance satisfactory to it:

 

(a)

evidence that the Borrower has received, by way of equity capital increase, gross proceeds in the aggregate amount of at least EUR 5,000,000 (or its equivalent), paid-in in full and duly registered with the Danish Business Authority.

 

2.5.5

Tranche B – Additional Conditions Precedent

 

Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of Tranche B unless the Bank has confirmed that it has received in form and substance satisfactory to it or is satisfied with (as applicable):

 

(a)

Tranche A has been disbursed;

 

(b)

evidence that the Borrower has received, by way of equity capital increase, grants or non-dilutive financing, gross proceeds in the aggregate amount of at least EUR 10,000,000 (or its equivalent), subject to the condition that grants and non-dilutive financing will not exceed EUR 8,000,000 (or its equivalent);

 

(c)

evidence that EVX01 has started Phase II or EVX02 has started Phase I/II; and

 

(d)

evidence that an infectious disease program (EVXB1or EVXB2) has started Phase I.

 

2.5.6

Tranche C – Additional Conditions Precedent

 

Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of Tranche C unless the Bank has confirmed that it has received in form and substance satisfactory to it or is satisfied with (as applicable):

 

(a)

each of Tranche A and Tranche B has been disbursed;

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(b)

evidence that the Borrower has received, by way of equity capital increase, grants, non-dilutive financing or licensing agreement, gross proceeds in the aggregate amount of at least EUR 25,000,000 (or its equivalent), subject to the condition that grants and non-dilutive financing under sub-paragraph (b) of Article 2.5.5 (Tranche B – Additional Conditions Precedent) above and this sub-paragraph (b) will not exceed in aggregate EUR 8,000,000 (or its equivalent);

 

(c)

evidence that at least two of EVXB1, EVXB2 or other infectious disease related program have started Phase I; and

 

(d)

evidence that the Borrower has spent EUR 20,000,000 on infectious disease programs.

 

2.6

Cancellation

 

(a)

The Borrower may send a written notice to the Bank requesting the cancellation of the undisbursed portion of the Credit. The written notice:

 

(i)

must specify whether the Borrower would like to cancel the undisbursed portion of the Credit in whole or in part and, if in part, the amount of the Credit the Borrower would like to cancel; and

 

(ii)

must not relate to an Accepted Tranche which has a Disbursement Date falling within 5 (five) Business Days of the date of the written notice.

 

Upon receipt of such written notice, the Bank shall cancel the requested undisbursed portion of the Credit with immediate effect.

 

(b)

At any time upon the occurrence of the following events, the Bank may notify the Borrower in writing that the undisbursed portion of the Credit shall be cancelled in whole or in part:

 

(i)

a Prepayment Event, which for the avoidance of doubt and only in case of event pursuant to Article 5.3.1 (Cost reduction), by an amount equal to the amount by which it is entitled to cancel the Credit;

 

(ii)

an Event of Default; or

 

(iii)

an event or circumstance which would with the passage of time or giving of notice under this Contract constitute a Prepayment Event other than pursuant to Article 5.3.1 (Cost reduction) or an Event of Default.

 

On the date of such written notification the relevant undisbursed portion of the Credit shall be cancelled with immediate effect.

 

2.7

Fee for cancellation of an Accepted Tranche

 

(a)

If pursuant to sub-paragraph (a) of Article 2.6 (Cancellation) the Borrower cancels an Accepted Tranche, the Borrower shall pay to the Bank the Cancellation Fee.

 

(b)

If pursuant to sub-paragraph (b) of Article 2.6 (Cancellation) the Bank cancels all or part of an Accepted Tranche, the Borrower shall pay to the Bank the Cancellation Fee.

 

(c)

If an Accepted Tranche is not disbursed on the Disbursement Date because the conditions precedent set out in Article 2.5.3 (All Tranches – Other Conditions) are not satisfied on such date, such Tranche shall be cancelled and the Borrower shall pay to the Bank the relevant Cancellation Fee.

 

2.8

Cancellation after expiry of the Credit

 

On the day following the Final Availability Date, and unless otherwise specifically agreed to in writing by the Bank, any part of the Credit in respect of which no Disbursement Acceptance has been received in accordance with Article 2.2.3 (Disbursement Acceptance) shall be automatically cancelled, without any notice being served by the Bank to the Borrower.

 

 

2.9

Drop Dead Fee

 

If no Disbursement is made within 12 (twelve) months of the date of this Contract, a drop dead fee of 1% (100 basis points) of the Credit (the "Drop Dead Fee") shall be payable by the Borrower to the Bank within 15 (fifteen) days of the Borrower's receipt of the Bank's demand or within any longer period specified in the Bank's demand.

 

2.10

Sums due under Article 2

 

Sums due under Article 2.6 (Cancellation) shall be payable in EUR. Sums due under Article 2.6 (Cancellation) shall be payable within [****] days of the Borrower's receipt of the Bank's demand or within any longer period specified in the Bank's demand.

 

Article 3 

 

The Loan

 

3.1

Amount of Loan

 

The Loan shall comprise the aggregate amount of Tranches disbursed by the Bank under the Credit.

 

3.2

Currency of repayment, interest and other charges

 

(a)

Interest, repayments and other charges payable in respect of each Tranche shall be made by the Borrower in EUR.

 

(b)

Any other payment shall be made in the currency specified by the Bank having regard to the currency of the expenditure to be reimbursed by means of that payment.

 

3.3

Confirmation by the Bank

 

The Bank shall deliver to the Borrower the amortisation table referred to in Article 5.1.2, if any, showing in accordance with the provisions of this Contract the Disbursement Date, the currency, the amount disbursed, the repayment terms and the interest rate for the Tranche C, not later than 10 (ten) calendar days after the Disbursement Date for such Tranche.

 

Article 4 

 

Interest

 

4.1

Fixed Rate Tranches

 

The Borrower shall pay interest on the outstanding balance of each Tranche A, Tranche B and Tranche C at the respective Fixed Rate annually in arrears on the relevant Payment Dates specified in the Disbursement Offer, and calculated on the basis of Article 6.1 (Day count convention). If the period from the Disbursement Date to the first Payment Date is 15 (fifteen) days or less then the payment of interest accrued during such period shall be postponed to the following Payment Date.

 

4.2

Payment in Kind (PIK) Interest

 

In addition to interest payable pursuant to Article 4.1 (Fixed Rate Tranches) above, interest shall accrue on the outstanding balance of each of Tranche A and Tranche B at the respective PIK Interest Rate, and be calculated on the basis of Article 6.1 (Day count convention). Such interest shall be capitalised annually and added to the outstanding principal amount of the Loan. Any such accrued interest shall, after being so capitalised, be treated as part of the

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

principal amount of that Loan, shall bear all interest in accordance with this Article 4 (Interest) and shall be payable on the Maturity Date of such Tranche or, where a Tranche is prepaid, on the Prepayment Date.

 

4.3

[****]

 

4.4	Interest on overdue sums

 

Without prejudice to Article 9 (Events of default) and by way of exception to Article 4.1 (Fixed Rate Tranches), if the Borrower fails to pay any amount payable by it under the Finance Documents on its due date, interest shall accrue on any such overdue amount from the due date to the date of actual payment at an annual rate equal to:

 

(a)

for overdue sums related to a Tranche, the higher of (a) the applicable Fixed Rate and PIK Interest Rate plus 2% (200 basis points) or (b) EURIBOR plus 2% (200 basis points);

 

(b)

for overdue sums other than under sub-paragraph (a) of this Article 4.4 (Interest on overdue sums) above, EURIBOR plus 2% (200 basis points),

 

and shall be payable in accordance with the demand of the Bank. For the purpose of determining EURIBOR in relation to this Article 4.4 (Interest on overdue sums), the relevant periods within the meaning of Schedule B (Definition of EURIBOR) shall be successive periods of one month commencing on the due date.

 

If the overdue sum is in a currency other than the currency of the Loan, the relevant interbank rate that is generally retained by the Bank for transactions in that currency plus 2% (200 basis points) shall apply, calculated in accordance with the market practice for such rate.

 

Article 5 

 

Repayment

 

5.1	Normal repayment

 

5.1.1

Single instalment – Tranche A and Tranche B

 

The Borrower shall repay each of Tranche A and Tranche B, together with all other amounts outstanding under this Contract in relation to that Tranche, in a single instalment on the Maturity Date of that Tranche.

 

5.1.2

Repayment by instalments – Tranche C

 

(a)

The Borrower shall repay Tranche C by annual equal instalments of principal together with all other amounts outstanding under this Contract in relation to Tranche C on the Repayment Dates specified in the relevant Disbursement Offer in accordance with the terms of the amortisation table delivered pursuant to Article 3.3 (Confirmation by the Bank).

 

(b)

The amortisation table shall be drawn up on the basis that:

 

(i)

repayment shall be made annually by equal instalments of principal;

 

(ii)

the first Repayment Date of the Tranche C shall fall not earlier than 30 (thirty) days from the Disbursement Date and not later than 2 (two) years from the Disbursement Date of the Tranche C; and

 

(iii)

the last Repayment Date of the Tranche C shall fall not earlier than 4 (four) years and not later than 6 (six) years from the Disbursement Date.

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

5.2	Voluntary prepayment

 

5.2.1

Prepayment option

 

(a)

Subject to Articles 5.2.2 (Prepayment Fee) and 5.4 (General), the Borrower may prepay all or part of any Tranche, together with accrued interest (including any interest under Article 4.2 (Payment in Kind (PIK) Interest)), any Prepayment Fee and indemnities if any, upon giving a Prepayment Request with at least [****] prior notice specifying:

 

(i)

the Prepayment Amount;

 

(ii)

the Prepayment Date;

 

(iii)

if applicable, the choice of application method of the Prepayment Amount in line with sub-paragraph (a)(i) of Article 6.5.3 (Allocation of sums related to Tranches); and

 

(iv)

the Contract Number.

 

(b)

The Prepayment Request shall be irrevocable.

 

5.2.2

Prepayment Fee

 

If the Borrower prepays a Tranche, the Borrower shall pay the relevant Prepayment Fee on the Prepayment Date.

 

5.2.3

Prepayment mechanics

 

Upon presentation by the Borrower to the Bank of a Prepayment Request, the Bank shall issue a Prepayment Notice to the Borrower, not later than [****] days prior to the Prepayment Date. The Prepayment Notice shall specify the Prepayment Amount, the accrued interest due thereon, the Prepayment Fee and the method of application of the Prepayment Amount. If the Prepayment Notice specifies Prepayment Fee, it shall also specify the deadline by which the Borrower may accept the Prepayment Notice, and the Borrower must accept the Prepayment Notice no later than such deadline as a condition to prepayment.

 

The Borrower shall make a prepayment in accordance with the Prepayment Notice and shall accompany the prepayment by the payment of accrued interest (including any interest under Article 4.2 (Payment in Kind (PIK) Interest)) and Prepayment Fee or indemnity, if any, due on the Prepayment Amount, as specified in the Prepayment Notice, and shall identify the Contract Number in the prepayment transfer.

 

5.3	Compulsory prepayment

 

5.3.1

Cost Reduction

 

If the total cost of the Investment at completion by the final date specified in the Technical Description falls below the figure stated in Recital (A) so that the amount of the Credit exceeds 50% (fifty per cent.) of such total cost, the Bank may forthwith, by notice to the Borrower, cancel the undisbursed portion of the Credit and/or demand prepayment of the Loan Outstanding up to the amount by which the Credit exceeds 50% (fifty per cent.) of the total cost of the Investment.

 

5.3.2

Change Events

 

The Borrower shall promptly inform the Bank if:

 

(a)

a Change-of-Control Event has occurred or is likely to occur in respect of itself or a Guarantor;

 

(b)

there is or is likely to be an enactment, promulgation, execution or ratification of or any change in or amendment to any law, rule or regulation (or in the application or official interpretation of any law, rule or regulation) that occurs or is likely to occur after the date of this Contract and which, in the opinion of the Borrower, would impair an Obligor's ability to perform its obligations under the Finance Documents; or

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(c)

a Senior Management Change has occurred or is likely to occur.

 

In such case, or if the Bank has reasonable cause to believe that a Change-of-Control Event, a Change-of-Law Event or a Senior Management Change has occurred or is likely to occur, the Borrower shall, on request of the Bank, consult with the Bank as to the impact of such event. If 30 (thirty) days have passed since the date of such request and the Bank is of the reasonable opinion that the effects of such event cannot be mitigated to its satisfaction, or in any event if a Change-of-Control Event, Change-of-Law Event or Senior Management Change has actually occurred, the Bank may by notice to the Borrower, cancel the undisbursed portion of the Credit and/or demand prepayment of the Loan Outstanding, together with accrued interest and all other amounts accrued or outstanding under this Contract.

 

5.3.3

Illegality

 

If it becomes unlawful in any applicable jurisdiction for the Bank to perform any of its obligations as contemplated in this Contract or to fund or maintain the Loan, the Bank shall promptly notify the Borrower and may immediately cancel the undisbursed portion of the Credit and/or demand prepayment of the Loan Outstanding, together with accrued interest and all other amounts accrued or outstanding under this Contract.

 

5.3.4

Disposals

 

If the Borrower disposes of assets forming part of the Investment or shares in subsidiaries holding assets forming part of the Investment, without the approval of the Bank, the Borrower shall apply all proceeds of such disposal to prepay the Loan Outstanding (in part or in whole), together with accrued interest, promptly following receipt of such proceeds in accordance with sub-paragraph (b) of Paragraph 9 (Disposal of assets) of Schedule H (General Undertakings).

 

5.3.5

Pari Passu to Non-EIB Financing

 

If:

 

(a)

a Voluntary Non-EIB Prepayment has occurred; or

 

(b)

(i) a Voluntary Non-EIB Prepayment is likely to occur and (ii) the Bank has requested a consultation in respect of such Voluntary Non-EIB Prepayment and at least 30 (thirty) days have passed since the date of such request,

 

the Bank may, by notice to the Borrower, cancel the undisbursed portion of the Credit and demand prepayment of the Loan Outstanding, together with accrued interest and all other amounts accrued or outstanding under this Contract, provided that proportion of the Loan that the Bank may require to be prepaid shall be the same as the proportion that the prepaid amount of the Non-EIB Financing bears to the aggregate amount of all Non-EIB Financing.

 

5.3.6

Prepayment Fee

 

In the case of a Prepayment Event in relation to a Tranche, the Borrower shall pay the relevant Prepayment Fee.

 

5.3.7

Prepayment mechanics

 

Any sum demanded by the Bank pursuant to Articles 5.3.1 (Cost Reduction) to 5.3.3 (Illegality) shall be paid on the date indicated by the Bank in its notice of demand, such date being a date falling not less than 30 (thirty) days from the date of the demand (or, if earlier, the last day of any applicable grace period permitted by law in respect of the event in Article 5.3.3 (Illegality)).

 

5.4

General

 

(a)

A repaid or prepaid amount may not be reborrowed.

 

 

(b)

If the Borrower prepays a Tranche on a date other than a relevant Payment Date, or if the Bank exceptionally accepts, solely upon the Bank’s discretion, a Prepayment Request with prior notice of less than 30 (thirty) calendar days, the Borrower shall pay to the Bank an administrative fee in such an amount as the Bank shall notify to the Borrower.

 

Article 6 

 

Payments

 

6.1	Day count convention

 

Any amount due under this Contract and calculated in respect of a fraction of a year shall be determined based on a year of 360 (three hundred and sixty) days and a month of 30 (thirty) days.

 

6.2	Time and place of payment

 

(a)

If neither this Contract nor the Bank's demand specifies a due date, all sums other than sums of interest, indemnity and principal are payable within 15 (fifteen) days of the Borrower's receipt of the Bank's demand.

 

(b)

Each sum payable by the Borrower under this Contract shall be paid to the following account:

 

		Bank:                                      [****]
		City:
		Account number:
		SWIFT Code/BIC:
		Remark:

 

or such other account notified by the Bank to the Borrower from time to time.

 

(c)

The Borrower shall provide the Contract Number as a reference for each payment made under this Contract.

 

(d)

Any disbursements by and payments to the Bank under this Contract shall be made using account(s) acceptable to the Bank. Any account in the name of the Borrower held with a duly authorised financial institution in the jurisdiction where the Borrower is incorporated or where the Investment is undertaken is deemed acceptable to the Bank.

 

6.3	No set-off by the Borrower

 

All payments to be made by the Borrower under this Contract shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.

 

6.4	Disruption to Payment Systems

 

If either the Bank determines (in its discretion) that a Disruption Event has occurred or the Bank is notified by the Borrower that a Disruption Event has occurred:

 

(a)

the Bank may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Finance Documents as the Bank may deem necessary in the circumstances;

 

(b)

the Bank shall not be obliged to consult with the Borrower in relation to any changes mentioned in sub-paragraph (a) of this Article 6.4 (Disruption to Payment Systems)

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes; and

 

(c)

the Bank shall not be liable for any damages, costs or losses whatsoever arising as a result of a Disruption Event or for taking or not taking any action pursuant to or in connection with this Article 6.4 (Disruption to Payment Systems).

 

6.5	Application of sums received

 

6.5.1

General

 

Sums received by the Bank from the Borrower shall only discharge its payment obligations under the Finance Documents if and when received in accordance with the terms of the Finance Documents.

 

6.5.2

Partial payments

 

If the Bank receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under the Finance Documents, the Bank shall apply that payment in or towards payment of:

 

(a)

first, any unpaid fees, costs, indemnities and expenses due under the Finance Documents;

 

(b)

secondly, any accrued interest due but unpaid under this Contract;

 

(c)

thirdly, any principal due but unpaid under this Contract; and

 

(d)

fourthly, any other sum due but unpaid under the Finance Documents.

 

6.5.3

Allocation of sums related to Tranches

 

(a)

In case of:

 

(i)

a partial voluntary prepayment of a Tranche that is subject to a repayment in several instalments, the Prepayment Amount shall be applied pro rata to each outstanding instalment, or, at the request of the Borrower, in inverse order of maturity; and

 

(ii)

a partial compulsory prepayment of a Tranche that is subject to a repayment in several instalments, the amount prepaid shall be applied in reduction of the outstanding instalments in inverse order of maturity.

 

(b)

Sums received by the Bank following a demand under Article 9.1 (Right to demand repayment) and applied to a Tranche, shall reduce the outstanding instalments in inverse order of maturity. The Bank may apply sums received between Tranches at its discretion.

 

(c)

In case of receipt of sums which cannot be identified as applicable to a specific Tranche, and on which there is no agreement between the Bank and the Borrower on their application, the Bank may apply these between Tranches at its discretion.

 

Article 7 

 

Borrower undertakings and representations

 

(a)

The Borrower makes the representations and warranties set out in Schedule G (Representations and Warranties) to the Bank on the date of this Contract in respect of itself and, where applicable, the other Obligors.

 

(b)

The Repeating Representations are deemed to be made by the Borrower (in respect of itself and, where applicable, the other Obligors) on the date of each Disbursement Acceptance, each Disbursement Date and each Payment Date by reference to the facts and circumstances then existing.

 

 

(c)

The undertakings in Schedule H (General Undertakings) and Schedule I (Information and Visits) remain in force from the date of this Contract for so long as any amount is outstanding under the Finance Documents or the Credit is available.

 

Article 8 

 

Charges and expenses

 

8.1

Taxes, duties and fees

 

(a)

The Borrower shall pay all Taxes, duties, fees (including legal fees) and other impositions of whatsoever nature, including stamp duty and registration fees, arising out of the execution or implementation of each Finance Document or any related document and in the creation, perfection, registration or enforcement of any security for the Loan to the extent applicable.

 

(b)

The Borrower shall pay all principal, interest, indemnities and other amounts due under the Finance Documents gross without any withholding or deduction of any national or local impositions whatsoever, provided that if the Borrower is required by law or an agreement with a governmental authority or otherwise to make any such withholding or deduction, it will gross up the payment to the Bank so that after withholding or deduction, the net amount received by the Bank is equivalent to the sum due.

 

8.2

Other charges

 

The Borrower shall bear all charges and expenses, including professional, banking or exchange charges incurred by the Bank in connection with the preparation, execution, implementation, enforcement, preservation of any rights under and termination of the Finance Documents (including, but not limited to, any Guarantee Agreement entered into pursuant to Paragraph 18 (Guarantees) of Schedule H (General Undertakings)) or any related document, any amendment, supplement, consent or waiver in respect of the Finance Documents or any related document, and in the amendment, creation, management, enforcement and realisation of any security for the Loan.

 

8.3

Increased costs, indemnity and set-off

 

(a)

The Borrower shall pay to the Bank any costs or expenses incurred or suffered by the Bank as a consequence of the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or compliance with any law or regulation which occurs after the date of this Contract, in accordance with or as a result of which (i) the Bank is obliged to incur additional costs in order to fund or perform its obligations under this Contract, or (ii) any amount owed to the Bank under this Contract or the financial income resulting from the granting of the Credit or the Loan by the Bank to the Borrower is reduced or eliminated, except to the extent any such costs or expense are attributable to the wilful breach by the Bank of any law or regulation.

 

(b)

Without prejudice to any other rights of the Bank under this Contract or under any applicable law, the Borrower shall indemnify and hold the Bank harmless from and against any loss incurred as a result of any full or partial discharge that takes place in a manner other than as expressly set out in this Contract.

 

(c)

The Bank may set off any matured obligation due from the Borrower under each Finance Document (to the extent beneficially owned by the Bank) against any obligation (whether or not matured) owed by the Bank to the Borrower regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Bank may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. If either obligation is unliquidated or unascertained, the Bank may set off in an amount estimated by it in good faith to be the amount of that obligation.

 

 

Article 9

  

Events of default

 

9.1

Right to demand repayment

 

The Bank may demand (in writing) without prior notice or any judicial or extra judicial step immediate repayment by the Borrower of all or part of the Loan Outstanding (as requested by the Bank), together with accrued interest, any Prepayment Fee and all other accrued or outstanding amounts under this Contract, if:

 

(a)

any amount payable pursuant to any Finance Document is not paid on the due date at the place and in the currency in which it is expressed to be payable, unless (i) its failure to pay is caused by an administrative or technical error or a Disruption Event and (ii) payment is made within [****] Business Days of its due date;

 

(b)

any information or document given to the Bank by or on behalf of any Obligor or any representation, warranty or statement made or deemed to be made by the Borrower in any Finance Document, pursuant to any Finance Document or for the purposes of entering into any Finance Document is or proves to have been incorrect, incomplete or misleading in any material respect;

 

(c)

following any default of any Obligor in relation to any loan, or any obligation arising out of any financial transaction, other than the Loan,

 

(i)

such Obligor is required or is capable of being required or will, following expiry of any applicable contractual grace period, be required or be capable of being required to prepay, discharge, close out or terminate ahead of maturity such other loan or obligation; or

 

(ii)

any financial commitment for such other loan or obligation is cancelled or suspended; and

 

(iii)

such other loans or obligations or commitments falling under sub-paragraphs (i) and/or (ii) above are in an aggregate principal amount in excess of EUR 100,000 euro or its equivalent in any other currency or currencies;

 

(d)

any Obligor is unable to pay its debts as they fall due, or suspends its debts, or makes or seeks to make a composition with its creditors including a moratorium, or commences negotiations with one or more of its creditors with a view to rescheduling any of its financial indebtedness;

 

(e)

any corporate action, legal proceedings or other procedure or step is taken in relation to the suspension of payments, a moratorium of any indebtedness, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) or an order is made or an effective resolution is passed for the winding up of any Obligor, or if any Obligor takes steps towards a substantial reduction in its capital, is declared insolvent or ceases or resolves to cease to carry on the whole or any substantial part of its business or activities or any situation similar to any of the above occurs under any applicable law;

 

(f)

an encumbrancer takes possession of, or a receiver, liquidator, administrator, administrative receiver or similar officer is appointed, whether by a court of competent jurisdiction or by any competent administrative authority or by any person, of or over, any part of the business or assets of any Obligor or any property forming part of the Investment;

 

(g)

any Obligor defaults in the performance of any obligation in respect of any other loan granted by the Bank or financial instrument entered into with the Bank;

 

(h)

any Obligor defaults in the performance of any obligation in respect of any other loan made to it from the resources of the Bank or the European Union;

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(i)

any distress, execution, sequestration or other process is levied or enforced upon the assets or property of any Obligor or any property forming part of the Investment and is not discharged or stayed within [****] days;

 

(j)

a Material Adverse Change occurs, as compared with the position at the date of this Contract;

 

(k)

it is or becomes unlawful for any Obligor to perform any of its obligations under the Finance Documents, any obligation or obligations of any Obligor under any Finance Document are not or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively adversely affects the interest of the Bank under the Finance Documents, or any Finance Document is not or cease to be effective in accordance with its terms or is alleged by any Obligor to be ineffective in accordance with its terms;

 

(l)

the auditor of the Borrower qualifies the audited annual financial statements of the Borrower on grounds of the Group being unable to continue its business as going concern or in a manner which would result in a Material Adverse Change or would reasonably be expected to result in a Material Adverse Change;

 

(m)

any material change occur to any aspect of the Investment which, in the reasonable opinion of the Bank, adversely affects the interest of the Bank under the Finance Documents, or the Borrower fails to comply with any of its obligation in respect of the Investment set out in this Contract; or

 

(n)

any Obligor fails to comply with any other provision under the Finance Documents (including, without limitation, each of the undertakings in Schedule H (General Undertakings) and Schedule I (Information and Visits)), unless the non-compliance or circumstance giving rise to the non-compliance is capable of remedy and is remedied within 20 (twenty) Business Days from the earlier of the Borrower becoming aware of the non-compliance and a notice served by the Bank on the Borrower.

 

9.2

Other rights at law

 

Article 9.1 (Right to demand repayment) shall not restrict any other right of the Bank at law to require prepayment of the Loan Outstanding.

 

9.3

Prepayment Fee

 

In case of demand under Article 9.1 (Right to demand repayment), the Borrower shall pay the Bank the amount demanded together with the relevant Prepayment Fee.

 

9.4

Non-Waiver

 

No failure or delay or single or partial exercise by the Bank in exercising any of its rights or remedies under this Contract shall be construed as a waiver of such right or remedy. The rights and remedies provided in this Contract are cumulative and not exclusive of any rights or remedies provided by law.

 

Article 10 

 

Law and jurisdiction, miscellaneous

 

10.1

Governing Law

 

This Contract and any non-contractual obligations arising out of or in connection with it shall be governed by Danish law, without regard to its choice of law provisions.

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

Jurisdiction

 

(a)

The Courts of Denmark have exclusive jurisdiction to settle any dispute (a "Dispute") arising out of or in connection with this Contract (including a dispute regarding the existence, validity or termination of this Contract or the consequences of its nullity) or any non-contractual obligation arising out of or in connection with this Contract.

 

(b)

The parties agree that the Courts of Denmark are the most appropriate and convenient courts to settle Disputes between them and, accordingly, that they will not argue to the contrary.

 

(c)

This Article 10.2 (Jurisdiction) is for the benefit of the Bank only. As a result and notwithstanding sub-paragraph (a) above, it does not prevent the Bank from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Bank may take concurrent proceedings in any number of jurisdictions.

 

10.2

Place of performance

 

Unless otherwise specifically agreed by the Bank in writing, the place of performance under this Contract shall be the seat of the Bank.

 

10.3

Evidence of sums due

 

In any legal action arising out of this Contract the certificate of the Bank as to any amount or rate due to the Bank under this Contract shall, in the absence of manifest error, be prima facie evidence of such amount or rate.

 

10.4

Entire Agreement

 

This Contract constitutes the entire agreement between the Bank and the Borrower in relation to the provision of the Credit hereunder, and supersedes any previous agreement, whether express or implied, on the same matter.

 

10.5

Invalidity

 

If at any time any term of this Contract is or becomes illegal, invalid or unenforceable in any respect, or this Contract is or becomes ineffective in any respect, under the laws of any jurisdiction, such illegality, invalidity, unenforceability or ineffectiveness shall not affect:

 

(a)

the legality, validity or enforceability in that jurisdiction of any other term of this Contract or the effectiveness in any other respect of this Contract in that jurisdiction; or

 

(b)

the legality, validity or enforceability in other jurisdictions of that or any other term of this Contract or the effectiveness of this Contract under the laws of such other jurisdictions.

 

10.6

Amendments

 

Any amendment to this Contract shall be made in writing and shall be signed by the parties hereto.

 

10.7

Counterparts

 

This Contract may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument.

 

10.8

Assignment and transfer by the Bank

 

(a)

Subject to sub-paragraph (b) of this Article 10.9 (Assignment and transfer by the Bank), the consent of the Borrower is required for an assignment or transfer (by way of novation, sub-participation or otherwise) by the Bank of all or part of its rights, benefits or obligations under the Finance Documents, unless the assignment or transfer:

 

 

(i)

is to a Bank Affiliate; or

(ii)

is made at a time when an Event of Default has occurred and is continuing; or

(iii)

is made in respect of a sub-participation or securitisation (or similar transaction of broadly equivalent economic effect) where the Bank remains the lender of record of the Loan.

 

(b)

The consent of the Borrower to an assignment or transfer must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent (5) five Business Days after the Bank has requested it unless consent is expressly refused by the Borrower within that time.

 

(c)

The Borrower undertakes that it shall, and the Borrower shall ensure that each Group Company will, execute such documents, and carry out any other measures, reasonably required to effect an assignment or transfer.

 

(d)

The Bank shall have the right to disclose all information relating to or concerning the Borrower, the Group, the Finance Documents and the Loan in connection with or in contemplation of any such assignment or transfer.

  

For the purpose of this Article 10.9 (Assignment and transfer by the Bank):

 

“Affiliate” means any entity directly or indirectly Controlling, Controlled by or under common Control with the Bank.

 

“Bank Affiliate” means an Affiliate of the Bank.

 

Article 11 

 

Final Articles

 

11.1

Notices

 

11.1.1

Form of notice

 

(a)

Any notice or other communication given under this Contract must be in writing and, unless otherwise stated, may be made by letter and electronic mail.

 

(b)

Notices and other communications for which fixed periods are laid down in this Contract or which themselves fix periods binding on the addressee, may be made by hand delivery, registered letter or by electronic mail. Such notices and communications shall be deemed to have been received by the other party:

 

(i)

on the date of delivery in relation to a hand-delivered or registered letter;

 

(ii)

in the case of any electronic mail, when received in legible form;

 

and, if sent by the Borrower to Bank, only if it is addressed in such a manner as the Bank shall specify for this purpose.

 

(c)

Any notice provided by the Borrower to the Bank by electronic mail shall:

 

(i)

mention the Contract Number in the subject line; and

 

(ii)

be in the form of a non-editable electronic image (pdf, tif or other common non-editable file format agreed between the parties) of the notice signed by one or more authorised signatories of the Borrower as appropriate, attached to the electronic mail.

 

(d)

Notices issued by the Borrower pursuant to any provision of this Contract shall, where required by the Bank, be delivered to the Bank together with satisfactory evidence of the authority of the person or persons authorised to sign such notice on behalf of the Borrower and the authenticated specimen signature of such person or persons, unless covered by the then current List of Authorised Signatories and Accounts.

 

 

 

(e)

Without affecting the validity of electronic mail or communication made in accordance with this Article 11.1 (Notices), the following notices, communications and documents shall also be sent by registered letter to the relevant party at the latest on the immediately following Business Day:

 

(i)

Disbursement Acceptance;

 

(ii)

any notices and communication in respect of the cancellation of a disbursement of any Tranche, Prepayment Request, Prepayment Notice, Event of Default, any demand for prepayment, and

 

(iii)

any other notice, communication or document required by the Bank.

 

(f)

The parties agree that any above communication (including via electronic mail) is an accepted form of communication, shall constitute admissible evidence in court and shall have the same evidential value as an agreement under hand.

 

11.1.2

Addresses

 

The address and electronic mail address (and the department or officer, if any, for whose attention the communication is to be made) of each party for any communication to be made or document to be delivered under or in connection with this Contract is:

 

For the Bank	Attention[****] 100 boulevard Konrad Adenauer L-2950 Luxembourg Email address: [****]
For the Borrower	Attention: Chief Business Officer Evaxion Bredgade 34E 3. sal 1260 Copenhagen K Denmark Email address [****]

11.1.3

Demand after notice to remedy

 

The Bank and the Borrower shall promptly notify the other party in writing of any change in their respective communication details.

 

11.2

English language

 

(a)

Any notice or communication given under or in connection with this Contract must be in English.

 

(b)

All other documents provided under or in connection with this Contract must be:

 

(i)

in English; or

 

(ii)

if not in English, and if so required by the Bank, accompanied by a certified English translation and, in this case, the English translation will prevail.

 

 

IN WITNESS WHEREOF the parties hereto have caused this Contract to be executed in 2 (two) originals in the English language.

 

At Luxembourg/Copenhagen, this 6 August 2020

 

Signed for and on behalf of   EUROPEAN INVESTMENT BANK		Signed for and on behalf of   EVAXION BIOTECH A/S
Name:		Name:
Capacity:		Capacity:
Name:		Name:
Capacity:		Capacity:

 

 

Schedule A 

 

Investment Specification and Reporting

 

A.1 Technical Description

 

[****].

 

A.2 Information Duties

 

1.

Dispatch of information: designation of the person responsible

 

The information below has to be sent to the Bank under the responsibility of:

 

	Financial and Technical Contact
Company	Evaxion Biotech A/S
Contact person	Niels Iversen Moeller
Function / Department	Chief Business Officer
Address	Bredgade 34E, 1260 Copenhagen K Denmark
Phone	+45 27116227
Email	nim@evaxion-biotech.com

 

The above-mentioned contact person(s) is (are) the responsible contact(s) for the time being. The Borrower shall inform the Bank immediately in case of any change.

 

2.

Information on the project’s implementation

 

The Borrower shall deliver to the Bank the following information on project progress during implementation at the latest within 30 (thirty) days after the end of each financial half-year (as indicated below).

 

[****]

 

 

3.

Information on the end of works and first year of operation

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

The Borrower shall deliver to the Bank the following information on project completion and initial operation at the latest by the deadline indicated below.

 

[****]

 

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

Schedule B

 

Definitions of EURIBOR

 

"EURIBOR" means:

 

[****]

 

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

Schedule C 

 

Form of Disbursement Offer/Acceptance

 

To:       Evaxion Biotech A/S

 

From:   European Investment Bank

 

Date:    [*** insert date ***]

 

Subject:

Disbursement Offer/Acceptance for the Finance Contract between European Investment Bank and Evaxion Biotech A/S dated [*** insert date of signature ***] 2020 (the "Finance Contract")

 

Contract Number [****]

 

Serapis Number [****]

 

 

Dear Sirs,

 

We refer to the Finance Contract. Terms defined in the Finance Contract have the same meaning when used in this letter.

 

Following your request for a Disbursement Offer from the Bank, in accordance with Article 2.2.2 (Disbursement Offer) of the Finance Contract, we hereby offer to make available to you the following Tranche:

 

(a)

Tranche [A/B/C]

 

(b)

Amount to be disbursed:

 

(c)

Disbursement Date:

 

(d)

The Fixed Rate applicable to such Tranche:

 

(e)

PIK Interest Rate (in respect of Tranche A and Tranche B):

 

(f)

Payment Dates and interest periods:

 

(g)

Terms and frequency for repayment of principal (bullet in respect of Tranche A and Tranche B and annual amortising in respect of Tranche C):

 

(h)

First Repayment Date and Maturity Date:

 

(i)

Number of Warrants to be granted in relation to the Tranche:

 

To make the Tranche available subject to the terms and conditions of the Finance Contract, the Bank must receive a Disbursement Acceptance in the form of a copy of this Disbursement Offer duly signed on your behalf, to the following electronic mail [l] no later than the Disbursement Acceptance Deadline of [time], Luxembourg time, on [date].

 

The Disbursement Acceptance below must be signed by an Authorised Signatory and must be fully completed as indicated, to include the details of the Disbursement Account.

 

If not duly accepted by the above stated time, the offer contained in this document shall be deemed to have been refused and shall automatically lapse.

 

If you do accept the Tranche as described in this Disbursement Offer, all the related terms and conditions of the Finance Contract shall apply, in particular, the provisions of Article 2.5 (Conditions of Disbursement).

 

Yours faithfully,

 

EUROPEAN INVESTMENT BANK

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

We hereby accept the above Disbursement Offer for and on behalf of the Borrower:

 

__________________________________________

 

Date:

 

	Account to be credited:
	Account N°:
	Account Holder/Beneficiary:
	(please, provide IBAN format if the country is included in IBAN Registry published by SWIFT, otherwise an appropriate format in line with the local banking practice should be provided)
	Bank name, identification code (BIC) and address:
	Payment details to be provided:
	Please transmit information relevant to:
	Name(s) of the Borrower's Authorised Signatory(ies):
	Signature(s) of the Borrower’s Authorised Signatory(ies):

 

 

 

Schedule D 

 

Form of Drawdown Certificate

 

To:       European Investment Bank

 

From:   Evaxion Biotech A/S

 

Date:

 

Subject:

Finance Contract between European Investment Bank and Evaxion Biotech A/S dated [*** insert date of signature ***] 2020 (the "Finance Contract")

 

Contract Number [****]

 

Serapis Number [****]

 

Dear Sirs,

 

Terms defined in the Finance Contract have the same meaning when used in this letter.

 

For the purposes of Article 2.5 (Conditions of Disbursement) of the Finance Contract we hereby certify to you as follows:

 

(a)

no Prepayment Event has occurred and is continuing;

 

(b)

no security of the type prohibited under Paragraph 25 (Negative pledge) of Schedule H (General Undertakings) has been created or is in existence;

 

(c)

there has been no material change to any aspect of the Investment or in respect of which we are obliged to report under the Finance Contract, save as previously communicated by us;

 

(d)

no Default, Event of Default or a Prepayment Event other than pursuant to Article 5.3.1 (Cost Reduction) of the Finance Contract has occurred or is continuing, or would, in each case, result from the disbursement of the proposed Tranche;

 

(e)

no litigation, arbitration administrative proceedings or investigation is current or to our knowledge and belief (having made due and careful enquiry) is threatened or pending before any court, arbitral body or agency which has resulted or if adversely determined is reasonably likely to result in a Material Adverse Change, nor is there subsisting against us or any of our subsidiaries any unsatisfied judgement or award;

 

(f)

the Repeating Representations are correct in all respects;

 

(g)

no Material Adverse Change has occurred, as compared with the situation at the date of the Finance Contract; and

 

(h)

the borrowing of the Credit, or any part thereof, by the Borrower is within the corporate powers of the Borrower.

 

Yours faithfully,

 

For and on behalf of Evaxion Biotech A/S

 

Date:

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

Schedule E 

 

Form of Compliance Certificate

 

To:       European Investment Bank

 

From:   Evaxion Biotech A/S

 

Date:

 

Subject:

Finance Contract between European Investment Bank and Evaxion Biotech A/S dated [*** insert date of signature ***] 2020 (the "Finance Contract")

 

Contract Number [****]

 

Serapis Number [****]

 

Dear Sirs,

 

We refer to the Finance Contract. This is a Compliance Certificate. Terms defined in the Finance Contract have the same meaning when used in this Compliance Certificate.

 

We hereby confirm:

 

(a)

[insert information regarding asset disposal];

 

(b)

[no security of the type prohibited under Paragraph 25 (Negative pledge) of Schedule H (General Undertakings) has been created or is in existence;]

 

(c)

[no Default, Event of Default or a Prepayment Event other than pursuant to Article 5.3.1 (Cost Reduction) of the Finance Contract has occurred or is continuing.] [If this statement cannot be made, this certificate should identify any potential event of default that is continuing and the steps, if any, being taken to remedy it].

 

Yours faithfully,

 

For and on behalf of Evaxion Biotech A/S

 

[director]

[director]

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

 

Schedule F 

 

Part A – Initial Documentary Conditions Precedent

 

(a)

The following duly executed Finance Documents:

 

(i)

this Contract; and

 

(ii)

the Warrant Agreement.

 

(b)

A copy of the constitutional documents (being the articles of association of any Obligor incorporated in Denmark) of each Obligor.

 

(c)

A copy of a complete and up-to-date transcript from the Danish Business Authority of each Obligor incorporated in Denmark dated no earlier than the date falling 14 (fourteen) days before the first Disbursement Date.

 

(d)

A copy of the resolution of the competent body (board of directors (in relation to the Borrower or another Obligor incorporated in Denmark) or general meeting of shareholders) of each Obligor duly:

 

(i)

approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute, deliver and perform the Finance Documents to which it is a party;

 

(ii)

authorising the relevant signatories to execute the Finance Documents to which it is a party; and

 

(iii)

authorising the relevant signatories, on its behalf, to sign and/or dispatch all documents and notices (including, if relevant, any Disbursement Acceptance) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.

 

(e)

The List of Authorised Signatories and Accounts.

 

(f)

A structure chart showing the Group certified as being complete and correct by an authorised signatory of the Borrower dated no earlier than the date falling 14 (fourteen) days before the first Disbursement Date.

 

(g)

A certificate of an authorised signatory of each Obligor certifying that each copy document relating to it specified in this Part A of Schedule F (Initial Documentary Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than the date falling [****] days before the Disbursement Date.

 

(h)

A legal opinion in a form acceptable to the Bank of Accura Advokatpartnerselskab, legal adviser to the Bank, addressed to the Bank as to Danish law on the legality, validity and enforceability of this Contract.

 

(i)

A legal opinion in a form acceptable to the Bank of Mazanti-Andersen Korsø Jensen Advokatpartnerselskab, the legal adviser to the Borrower (or any other reputable Danish law firm representing the Borrower from time to time), addressed to the Bank, and dated no earlier than the date falling [****] days before the Disbursement Date relating to (i) the authority and capacity of the Borrower; (ii) the authority and capacity of the shareholders of the Borrower incorporated in Denmark and which enters into the Warrant Agreement; and (iii) legality, validity and enforceability of the Warrant Agreement:

 

(i)

which includes a search on bankruptcy and restructuring proceedings, including a no bankruptcy certificate (in Danish: konkursfrihedsbevis) from the relevant Probate Court, on the Borrower conducted on the date of such legal opinion; and

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(ii)

on the due incorporation and valid existence of each Obligor, the authority and capacity of each Obligor to enter into the Finance Documents and perform its obligations thereunder, the due execution of each Obligor of the Finance Documents, non-conflict with constitutional documents and on laws applicable to companies generally in Denmark, pari passu ranking, no consents, registrations or filings are required and no stamp duty is to be paid in respect of the Finance Documents (other than registrations made with the Danish Business Authority under the Warrant Agreement), all corporate and other action required to be taken has indeed been taken, no tax deduction or withholding, the due execution of the Finance Documents, choice of law and enforceability of judgments and that the Obligor is not entitled to claim immunity.

 

(j)

In respect of each shareholder of the Borrower incorporated in a jurisdiction other than Denmark and which enters into the Warrant Agreement, a legal opinion addressed to the Bank as to the law of the jurisdiction of such shareholder's incorporation relating to the authorisation and capacity of such shareholder and in a form acceptable to the Bank.

 

(k)

The latest audited financial statements of the Obligors.

 

(l)

Evidence of payment of all the fees and expenses as required under the Finance Documents.

 

(m)

All necessary consents of shareholders with respect to the entering into of the Warrant Agreement and the due registration of the Warrant Agreement with the Danish Business Authority.

 

(n)

Any such information and evidence requested by the Bank concerning the compliance with the due diligence requirements of the Bank including but not limited to “Know your customer” (KYC) or similar identification procedures.

 

(o)

A copy of any other document, authorisation, opinion or assurance which the Bank has notified the Borrower is necessary or desirable in connection with the entry into and performance of, and the transactions contemplated by, the Finance Documents or the validity and enforceability of the same.

 

Part B – Guarantor Conditions Precedent

 

(a)

A duly executed Guarantee Agreement.

 

(b)

A copy of the constitutional documents (being the articles of association of a Guarantor incorporated in Denmark) of the Guarantor.

 

(c)

A copy of a complete and up-to-date transcript from the Danish Business Authority of the Guarantor incorporated in Denmark dated the date of execution of the Guarantee Agreement.

 

(d)

A copy of the resolution of the competent body (board of directors (in relation to a Guarantor incorporated in Denmark) or general meeting of shareholders) of the Guarantor duly:

 

(i)

approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute, deliver and perform the Finance Documents to which it is a party;

 

(ii)

authorising the relevant signatories to execute the Finance Documents to which it is a party; and

 

(iii)

authorising the relevant signatories, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.

 

(e)

A structure chart showing the Group certified as being complete and correct by an authorised signatory of the Borrower dated no earlier than the date falling 14 (fourteen) days before the execution of the Guarantee Agreement.

 

 

(f)

A certificate of an authorised signatory of the Guarantor certifying that each copy document relating to it specified in this Part B of Schedule F (Initial Documentary Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than the date of execution of the Guarantee Agreement.

 

(g)

Evidence that the Guarantor has obtained all necessary Authorisations required in connection with such Guarantee Agreement.

 

(h)

A legal opinion, in form and substance satisfactory to the Bank, of a reputable law firm in the jurisdiction of incorporation of such Guarantor, addressed to the Bank on the valid existence of such Guarantor, the authority and capacity of such Guarantor to enter into the Guarantee Agreement and on the due execution and choice of law of the Guarantee Agreement.

 

(i)

Any such information and evidence requested by the Bank concerning the compliance with the due diligence requirements of the Bank including but not limited to “Know your customer” (KYC) or similar identification procedures.

 

(j)

A copy of any other document, authorisation, opinion or assurance which the Bank has notified the Borrower is necessary or desirable in connection with the entry into and performance of, and the transactions contemplated by, the Finance Documents or the validity and enforceability of the same.

 

 

Schedule G 

 

Representations and Warranties

 

1.

Authorisations and Binding Obligations

 

(a)

Each Obligor is duly incorporated and validly existing as a company with limited liability under the laws of its jurisdiction of incorporation.

 

(b)

Each Obligor has the power to carry on its business as it is now being conducted and to own its property and other assets, and to execute, deliver and perform its obligations under the Finance Documents.

 

(c)

Each Obligor has obtained all necessary Authorisations in connection with the execution, delivery and performance of the Finance Documents and in order to lawfully comply with its obligations thereunder, and in respect of the Investment, and all such Authorisations are in full force and effect and admissible in evidence.

 

(d)

The execution and delivery of, the performance of each Obligor’s obligations under and compliance with the provisions of the Finance Documents do not and will not contravene or conflict with:

 

(i)

any applicable law, statute, rule or regulation, or any judgement, decree or permit to which it is subject;

 

(ii)

any agreement or other instrument binding upon it which might reasonably be expected to have a material adverse effect on its ability to perform its obligations under the Finance Documents; or

 

(iii)

any provision of its constitutional documents.

 

(e)

The obligations expressed to be assumed by each Obligor in each Finance Document to which it is a party are legal, valid, binding and enforceable obligations.

 

2.

No default or other adverse event

 

(a)

There has been no Material Adverse Change since 30 June 2020. (Non-repeating)

 

(b)

No event or circumstance which constitutes an Event of Default has occurred and is continuing unremedied or unwaived.

 

3.

No proceedings

 

(a)

No litigation, arbitration, administrative proceedings or investigation is current or to its knowledge and belief (having made due and careful enquiry) is threatened or pending before any court, arbitral body or agency which has resulted or if adversely determined is reasonably likely to result in a Material Adverse Change, nor is there subsisting against it or any of its Subsidiaries any unsatisfied judgement or award.

 

(b)

To the best of its knowledge and belief (having made due and careful enquiry) no material Environmental Claim has been commenced or is threatened against any Obligor.

 

(c)

As at the date of this Contract, no Obligor has taken any action to commence proceedings for, nor have any other steps been taken or legal proceedings commenced or, so far as the Borrower is aware, threatened against any Obligor for its insolvency, winding up or dissolution, or for any Obligor to enter into any arrangement or compositions for the benefit of creditors, or for the appointment of an administrator, receiver, administrative receiver, examiner, trustee or similar officer.

 

4.

Security

 

At the date of this Contract, no Security exists over the assets of any Group Company and is not subject to any prior ranking other than Permitted Security.

 

 

5.

Ranking

 

(a)

Its payment obligations under this Contract rank not less than pari passu in right of payment with all other present and future unsecured and unsubordinated obligations under any of its debt instruments except for obligations mandatorily preferred by law applying to companies generally.

 

(b)

No financial covenants have been concluded with any other creditor of any Obligor.

 

(c)

No Voluntary Non-EIB Prepayment has occurred.

 

6.

Anti-Corruption

 

(a)

Each Obligor is in compliance with all applicable European Union and national legislation, including any applicable anti-corruption legislation.

 

(b)

To the best of its knowledge, no funds invested in the Investment by any Obligor or by its controlling entities or any other Group Company are of illicit origin, including products of money laundering or linked to the financing of terrorism.

 

(c)

No Obligor is engaged in any Criminal Activities and to the best of the Borrower’s knowledge and belief no Criminal Activities have occurred in connection with the Investment. (Non-repeating)

 

7.

Accounting and Tax

 

(a)

The latest available consolidated and unconsolidated audited accounts of the Borrower and the other Obligors have been prepared on a basis consistent with previous years and have been approved by its auditors as representing a true and fair view of the results of its operations for that year and accurately disclose or reserve against all the liabilities (actual or contingent) of the Borrower and the other Obligors, as relevant.

 

(b)

The accounting reference date of the Borrower is 31 December.

 

(c)

No Obligor is required to make any deduction for or on account of any Tax from any payment it may make under the Finance Documents. (Non-repeating)

 

(d)

All Tax returns required to have been filed by each Obligor or on its behalf under any applicable law have been filed when due and contain the information required by applicable law to be contained in them.

 

(e)

Each Obligor has paid when due all Taxes payable by it under applicable law except to the extent that it is contesting payment in good faith and by appropriate means.

 

(f)

Each Obligor is resident for Tax purposes only in the jurisdiction of incorporation.

 

(g)

With respect to Taxes which have not fallen due or which it is contesting, each Obligor is maintaining reserves adequate for their payment and in accordance, where applicable, with GAAP.

 

(h)

Except for the Warrant Agreement under which certain registrations are required with the Danish Business Authority which will be made promptly at the times set out in the Warrant Agreement, under the laws of the jurisdiction of incorporation of each Obligor, it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority or that any stamp, registration or similar tax or fee be paid on or in relation to the Finance Documents, or the transactions contemplated by the Finance Documents. (Non-repeating)

 

8.

Information provided

 

(a)

Any factual information provided by any Group Company for the purposes of entering into this Contract and any related documentation was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated and continues to be true and accurate in all material respect as at the date of this Contract.

 

 

(b)

The Group structure chart is true, complete and accurate in all material respects and represents the complete corporate structure of the Group as at the date of this Contract, and other than as set out therein the Borrower owns no other equity and/or shares in any other business entity. (Non-repeating)

 

9.

Exclusion criteria

 

At the date of this Contract,

 

(a)

the Borrower is not bankrupt, is not subject to insolvency, is not being wound up, is not having its affairs administered by a liquidator or by the courts, is not in an arrangement with creditors, is not having its business activities suspended, or is not in any analogous situation arising from a similar procedure provided for in national legislation or regulations;

 

(b)

in the past five years, the Borrower has not been the subject of a final judgment or final administrative decision for being in breach of its obligations relating to the payment of taxes or social security contributions in accordance with the applicable law and where such obligations remain unpaid unless a binding arrangement has been established for payment thereof;

 

(c)

in the past five years, the Borrower or persons having powers of representation, decision-making or control over it have not been convicted of an offence concerning their professional conduct by a final judgment, which would affect their ability to implement a Financial Instrument and which is for one of the following reasons:

 

(i)

negligently providing misleading information that may have a material influence or fraudulently misrepresenting information required for the verification of the absence of grounds for exclusion or the fulfilment of selection criteria or in the performance of a contract or an agreement;

 

(ii)

entering into agreements with other persons aimed at distorting competition;

 

(iii)

attempting to unduly influence the decision-making process of the contracting authority during the award procedure;

 

(iv)

attempting to obtain confidential information that may confer upon it undue advantages in the award procedure;

 

(d)

in the past five years, the Borrower or persons having powers of representation, decision-making or control over it have not been the subject of a final judgment for:

 

(i)

fraud;

 

(ii)

corruption;

 

(iii)

participation in a criminal organisation;

 

(iv)

money laundering or terrorist financing;

 

(v)

terrorist offences or offences linked to terrorist activities, or inciting, aiding, abetting or attempting to commit such offences;

 

(vi)

child labour and other forms of trafficking in human beings;

 

(e)

as of the date of this declaration, the Borrower is not subject to a decision on exclusion contained in the published early detection and exclusion system database set up and operated by the European Commission.

 

10.

No indebtedness

 

No Obligor has Indebtedness outstanding other than Permitted Indebtedness. (Non-repeating).

 

11.

No Immunity

 

No Obligor, nor any of its assets, is entitled to immunity from suit, execution, attachment or other legal process.

 

 

12.

Pensions

 

The pension schemes for the time being operated by the Obligors (if any) are funded in accordance with their rules and to the extent required by law or otherwise comply with the requirements of any law applicable in the jurisdiction in which the relevant pension scheme is maintained.

 

13.

Good title to assets

 

Each Obligor and each of its Subsidiaries has, in all material respect, a good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its business as presently conducted.

 

14.

Governing law and enforcement

 

(a)

The choice of governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation or establishment.

 

(b)

Any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its jurisdiction of incorporation or establishment.

 

 

Schedule H 

 

General Undertakings

 

1.

Use of Loan

 

The Borrower shall use all amounts borrowed by it under the Loan to carry out the Investment.

 

2.

Completion of Investment

 

The Borrower shall or shall procure that the Investment is carried out in accordance with the Technical Description as may be modified from time to time with the approval of the Bank, and complete it by the final date specified therein.

 

3.

Procurement procedure

 

The Borrower shall secure goods and services for the Investment (a) in so far as they apply to it or to the Investment, in accordance with EU Law in general and in particular with the relevant EU Directives, and (b) in so far as EU Directives do not apply, by procurement procedures which, to the satisfaction of the Bank, respect the criteria of economy and efficiency and, in case of public contracts, the principles of transparency, equal treatment and non-discrimination on the basis of nationality.

 

4.

Compliance with laws

 

Each Obligor shall comply in all respects with all laws and regulations to which it or the Investment is subject.

 

5.

Sanctions

 

The Borrower shall ensure that all amounts borrowed by it under this Contract are not made available to, or for the benefit of, persons or entities designated by restrictive measures adopted pursuant to Article 215 of the Treaty on the Functioning of the European Union.

 

6.

Data Protection

 

(a)

Before disclosing any personal data (other than mere contact information relating to the Borrower’s personnel involved in the management of this Contract (“Contact Data”)) to the Bank in connection with this Contract, the Borrower shall ensure that each data subject of such personal data:

 

(i)

has been informed of the disclosure to the Bank (including the categories of personal data to be disclosed); and

 

(ii)

has been advised on the information contained in (or has been provided with an appropriate link to) the Bank’s privacy statement in relation to its lending and investment activities set out from time to time at https://www.eib.org/en/privacy/lending (or such other address as the Bank may notify to the Borrower in writing from time to time).

 

(b)

When disclosing information (other than Contact Data) to the Bank in connection with this Contract, the Borrower shall redact or otherwise amend that information (as necessary) so that it does not contain any personal data, except where this Contract specifically requires, or the Bank specifically requests in writing, to disclose such information in the form of personal data.

 

7.

Environment

 

The Borrower shall:

 

(i)

implement and operate the Investment in compliance with Environmental Law;

 

 

(ii)

obtain, maintain and comply with requisite Environmental Approvals for the Investment,

 

and upon becoming aware of any breach of this Paragraph 7 (Environment):

 

(i)

the Borrower shall promptly notify the Bank;

 

(ii)

the Borrower and the Bank will consult for up to 15 (fifteen) Business Days from the date of notification with a view to agreeing the manner in which the breach should be rectified; and

 

(iii)

the Borrower shall remedy the breach within 30 (thirty) Business Days of the end of the consultation period.

 

8.

Integrity

 

The Borrower shall take, within a reasonable timeframe, appropriate measures in respect of any member of its management bodies who has been convicted by a final and irrevocable court ruling of a Criminal Offence perpetrated in the course of the exercise of his/her professional duties, in order to ensure that such member is excluded from any Borrower's activity in relation to the Loan or the Investment.

 

9.

Disposal of assets

 

(a)

Except as provided below, the Borrower shall not, and shall procure that no Group Company shall, either in a single transaction or in a series of transactions whether related or not and whether voluntarily or involuntarily dispose of all or any part of any Group Company's business, undertaking or assets (including any shares or security of any entity or a business or undertaking, or any interest in any of them).

 

(b)

Sub-paragraph (a) above does not apply to any such disposal:

 

(i)

made with the prior written consent of the Bank;

 

(ii)

made on arm's length terms in the ordinary course of business of a Group Company;

 

(iii)

made on arm's length terms and at fair market value for cash, which is reinvested in assets of comparable or superior type, value and quality;

 

(iv)

made on arm's length terms in exchange for other assets comparable or superior as to type, value and quality;

 

(v)

by one Obligor to another Obligor;

 

(vi)

by a Group Company which is not an Obligor to an Obligor;

 

(vii)

constituted by a licence of Intellectual Property Rights on arm's length terms in the ordinary course of business;

 

(viii)

made in relation to non-material assets which have depreciated to less than [****] of their initial value or which are obsolete;

 

(ix)

excluding any disposal otherwise permitted under (ii) to (viii) above, disposals where the higher of the market value or consideration receivable for such disposals does not exceed (x) [****] of Total Assets during any financial year, and (y) [****] of Total Assets during the term of the Credit; or

 

(x)

arising as a result of Permitted Security,

 

provided, in each case, that the disposal is not of assets forming part of the Investment or shares in subsidiaries holding assets forming part of the Investment, which may not be disposed of unless either (a) the Borrower consults the Bank in relation to such disposal, and the Bank approves the disposal, or (b) the proceeds of the disposal are applied to prepay the Bank in accordance with Article 5.3.4 (Disposals).

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

For the purposes of this Paragraph 9 (Disposal of assets), "dispose" and "disposal" includes any act effecting sale, transfer, lease or other disposal.

 

10.

Maintenance of assets

 

The Borrower shall maintain, repair, overhaul and renew all assets required in relation to the Investment as required to keep such assets in good working order.

 

11.

Insurances

 

The Borrower shall, and shall procure that each Group Company shall, maintain insurances on and in relation to its business and assets with reputable underwriters or insurance companies against those risks and to the extent as is usual for companies carrying on the same or substantially similar business.

 

12.

Change in business

 

The Borrower shall procure that no substantial change is made to the general nature of the business of the Borrower or the Group as a whole from that carried on at the date of this Contract.

 

13.

Merger

 

The Borrower shall not, and shall procure that no Group Company shall, enter into any amalgamation, demerger, merger or corporate reconstruction unless:

 

(a)

with the prior written consent of the Bank; or

 

(b)

such amalgamation, demerger, merger or corporate reconstruction does not result in a Material Adverse Change and is on a solvent basis, and provided that:

 

(i)

only Group Companies are involved;

 

(ii)

the resulting entity will not be incorporated or located in a country which is in a jurisdiction that is blacklisted by any Lead Organisation in connection with activities such as money laundering, financing of terrorism, tax fraud and tax evasion or harmful tax practices as such blacklist may be amended from time to time; and

 

(iii)

if the Borrower is involved, (i) the rights and obligations of the Borrower under this Contract will remain with the Borrower, (ii) the surviving entity will be the Borrower and the statutory seat of the Borrower would not as a result of such merger be transferred to a different jurisdiction, (iii) the merger will not have an effect on the validity, legality or enforceability of the Borrower's obligations under this Contract; and (iv) all of the business and assets of the Borrower are retained by it.

 

14.

Books and records

 

Each Obligor shall ensure that it has kept and will continue to keep proper books and records of account, in which full and correct entries shall be made of all financial transactions and its assets and business, including expenditures in connection with the Investment, in accordance with GAAP as in effect from time to time for a period of five (5) years following the last repayment of the Credit under this Contract.

 

15.

Ownership

 

(a)

The Borrower shall maintain not less than 51% (fifty one per cent.) of the share capital, directly or indirectly, of each of its Material Subsidiaries, unless a prior written consent of the Bank is received by the Borrower.

 

(b)

The Borrower shall in aggregate maintain not less than 100% (one hundred per cent.) of the share capital, directly or indirectly, of each Guarantor, unless:

 

 

 

(i)

the percentage of the share capital of the relevant Guarantor or Material Subsidiary at the date of this Contract or at the date it becomes Guarantor is lower than 100% (one hundred per cent.), in which case the Borrower shall maintain at least the same percentage of share capital; or

 

(ii)

prior written consent of the Bank is received by the Borrower.

 

(c)

The Borrower shall immediately notify the Bank in the event of a new entity becoming a Subsidiary of the Borrower through any means, including but not limited to acquisition, creation and spin-off.

 

(d)

The undertakings in sub-paragraphs (a), (b) and (c) above shall be calculated in accordance with GAAP as applied by the Borrower on the date of this Contract and as GAAP is amended from time to time and tested annually.

 

16.

Acquisitions

 

The Borrower shall not, and shall procure that no Group Company shall, invest in or acquire any entity or a business going concern or an undertaking (whether whole or substantially the whole of the assets or business), or any division or operating unit thereof, or any shares or securities of any entity or a business or undertaking (or in each case, any interest in any of them) (or agree to any of the foregoing), save for an acquisition or investment:

 

(a)

with the prior written consent of the Bank;

 

(b)

by one Obligor of an asset sold, leased, transferred or otherwise disposed of by another Obligor;

 

(c)

by a Group Company of all the shares or other ownership interests in any limited liability company or corporation, limited liability partnership or any equivalent company, provided that:

 

(i)

such entity has not yet commenced commercial operations;

 

(ii)

such entity is incorporated in a country that is a member of either or both of the European Union or the Organisation of Economic Co-Operation and Development; and

 

(iii)

no Event of Default is continuing on the date the relevant acquisition agreement is entered into or would occur as a result of the acquisition; or

 

(d)

of shares or other ownership interests in any limited liability company or corporation, limited liability partnership or any equivalent company, the consideration for which does not exceed an aggregate amount of (x) EUR [****] ([****] euro) during any financial year, and (y) EUR [****] ([****] euro) during the term of the Credit, provided that:

 

(i)

no Event of Default is continuing on the date the relevant acquisition agreement is entered into or would occur as a result of the acquisition;

 

(ii)

the acquired entity is engaged in a business similar or complementary to the business carried on by the Group as at the date of this Contract;

 

(iii)

the acquired entity is not incorporated or located in a jurisdiction that is blacklisted by any Lead Organisation in connection with activities such as money laundering, financing of terrorism, tax fraud and tax evasion or harmful tax practices as such blacklist may be amended from time to time;

 

(iv)

in respect of any acquisition where the consideration exceeds EUR [****] ([****] euro), legal and financial due diligence reports (including customary reliance letters in favour of the Bank) and a business plan (in the form of the most recent budget adjusted for the expected effects of the acquisition) in respect of the [****] next following financial years and any other due diligence reports received in connection with the acquisition (if any) are provided to the Bank; and

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(v)

the Borrower provides a Compliance Certificate for the [****] month financial periods immediately following the acquisition, updated on a pro forma basis as if the acquisition has occurred.

 

17.

Indebtedness

 

The Borrower shall not, and shall procure that no other Group Company shall, incur any Indebtedness, save for Indebtedness incurred:

 

(a)

with the prior written consent of the Bank;

 

(b)

under this Contract;

 

(c)

under any Finance Lease if the aggregate liability in respect of the equipment leased does not at any time exceed EUR [****] ([****] euro) (or its equivalent) in aggregate for the Group at any time;

 

(d)

owing by an Obligor to another Obligor;

 

(e)

under Permitted Hedging;

 

(f)

in respect of a Permitted Guarantee; or

 

(g)

not permitted by the preceding sub-paragraphs and the outstanding amount of which does not exceed EUR [****] ([****] euro) (or its equivalent) in aggregate for the Group at any time.

 

18.

Guarantees

 

(a)

The Borrower shall not, and shall procure that no other Group Company shall, issue or allow to remain outstanding any guarantees in respect of any liability or obligation of any person save for:

 

(i)

with the prior written consent of the Bank;

 

(ii)

any guarantee under any Finance Document; or

 

(iii)

guarantees issued in the ordinary course of trade by any Group Company under or in connection with:

 

(1)

any negotiable instruments;

 

(2)

in connection with any performance bond;

 

(3)

in connection with any Permitted Indebtedness; or

 

(4)

issued by one Obligor to another Obligor.

 

(b)

The Borrower shall procure that, as soon as any Group Company becomes a Material Subsidiary (as identified in any accounts delivered to the Bank from time to time pursuant to Paragraph 2 (Information concerning the Borrower) of Schedule I (Information and Visits), that Group Company shall promptly notify the Bank and on the Bank’s request enter into a Guarantee Agreement and provide the Bank with all of the documents and other evidence listed in Part B of Schedule F (Guarantor Conditions Precedent) in form and substance satisfactory to the Bank as soon as possible and no later than [****] days after the Bank's request.

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

19.

Hedging

 

The Borrower shall not, and shall procure that no other Group Company shall, enter into any derivative transaction other than Permitted Hedging, where "Permitted Hedging" means:

 

(a)

any derivative transaction entered into by a Group Company with the prior written consent of the Bank;

 

(b)

any derivative transaction by a Group Company to hedge actual or projected exposure arising in the ordinary course of trading and not for speculative purposes; and

 

(c)

any derivative instrument of a Group Company which is accounted for on a hedge accounting basis but is not entered into for speculative purposes.

 

20.

Restrictions on distributions

 

The Borrower shall not, and shall procure that no other Group Company shall, declare or distribute dividends (whether in cash or in kind), or return or purchase shares, save for:

 

(a)

with the prior written consent of the Bank;

 

(b)

payments to a Group Company as a result of a solvent liquidation or reorganisation of a Group Company which is not an Obligor;

 

(c)

any dividend payments made to Borrower by any subsidiary of the Borrower;

 

21.

Restrictions on loans

 

The Borrower shall not, and shall ensure that no other member of the Group will, be a creditor in respect of any Indebtedness, save for:

 

(a)

any trade credit extended by any member of the Group to its customers on normal commercial terms and in the ordinary course of its trading activities with a maximum duration of [****] days;

 

(b)

any loan made by one member of the Group (other than an Obligor) to another member of the Group, which to the extent made to an Obligor is fully subordinated to any indebtedness owed by the Obligors to the Bank in respect of ranking, payment and enforcement pursuant to a subordination letter to the satisfaction of the Bank;

 

(c)

any loan made by one Obligor to another Obligor;

 

(d)

any loan made by one Obligor to a member of the Group which is not an Obligor so long as the aggregate amount of Indebtedness under such loans does not exceed EUR [****] (or its equivalent) at any time;

 

(e)

any pension liabilities incurred in the ordinary course of business;

 

(f)

any loan made by a shareholder of the Borrower directly or indirectly to the Borrower, which is fully subordinated to any indebtedness owed by the Obligors to the Bank in respect of ranking, payment and enforcement pursuant to a subordination letter to the satisfaction of the Bank; or

 

(g)

any other Indebtedness or loan advanced to or made available by any member of the Group with the prior written consent of the Bank.

 

22.

Restrictions on intercompany loans

 

The Borrower shall not, and shall procure that no other Group Company shall, make any payment in respect of any intercompany loan, save for:

 

(a)

with the prior written consent of the Bank;

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(b)

where the lender of the intercompany loan is the Borrower or an Obligor; or

 

(c)

the payments to a Group Company as a result of a solvent liquidation or reorganisation of a Group Company which is not an Obligor.

 

23.

Intellectual Property Rights

 

The Borrower shall, and shall procure that each other Group Company shall, (i) obtain, safeguard and maintain its rights with respect to the Intellectual Property Rights required for the implementation of the Investment in accordance with this Contract, including complying with all material contractual provisions and that the implementation of the Investment in accordance with this Contract will not result in the infringement of the rights of any person with regard to the Intellectual Property Rights and (ii) ensure that any Intellectual Property Rights required for the implementation of the Investment will be owned by or licensed to the Borrower, and where such Intellectual Property Rights which are owned by a Group Company are capable of registration, are registered to such party.

 

24.

Maintenance of Status

 

The Borrower shall, and shall procure that each other Group Company shall, remain duly incorporated and validly existing as a corporate entity with limited liability under the jurisdiction in which it is incorporated and that it will have no centre of main interests, permanent establishment or place of business outside the jurisdiction in which it is incorporated, and that it will continue to have the power to carry on its business as it is now being conducted and continue to own its property and other assets.

 

25.

Negative pledge

 

(a)

The Borrower shall not, and shall procure that no other Group Company shall, create or permit to subsist any Security over any of its assets.

 

(b)

For the purposes of this Paragraph 25 (Negative pledge), the term Security shall also include any arrangement or transaction on assets or receivables or money (such as the sale, transfer or other disposal of assets on terms whereby they are or may be leased to or re-acquired by any Group Company, the sale, transfer or other disposal of any receivables on recourse terms or any arrangement under which money or the benefit of a bank account or other account may be applied or set off or any preferential arrangement having a similar effect) in circumstances where the arrangement or transaction is entered into primarily as a method of raising credit or of financing the acquisition of an asset.

 

(c)

Sub-paragraph (a) above does not apply to any Security, listed below:

 

(i)

any netting or set-off arrangement entered into by any Group Company in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;

 

(ii)

any payment or close out netting or set-off arrangement pursuant to any Permitted Hedging, but excluding any Security under a credit support arrangement in relation to a hedging transaction;

 

(iii)

any lien arising by operation of law and in the ordinary course of trading;

 

(iv)

any Security over or affecting any asset acquired by Group Company after the date of this Contract if:

 

(1)

the Security was not created in contemplation of the acquisition of that asset by a Group Company;

 

(2)

the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a Group Company; and

 

 

(3)

the Security is removed or discharged within [****] months of the date of acquisition of such asset;

 

(v)

any Security over or affecting any asset of any company which becomes a Group Company after the date of this Contract, where the Security is created prior to the date on which that company becomes a Group Company, if:

 

(1)

the Security was not created in contemplation of the acquisition of that company;

 

(2)

the principal amount secured has not increased in contemplation of or since the acquisition of that company; and

 

(3)

the Security is removed or discharged within [****] months of that company becoming a Group Company;

 

(vi)

any Security entered into pursuant to this Contract;

 

(vii)

any Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a Group Company in the ordinary course of trading and on the supplier's standard or usual terms and not arising as a result of any default or omission by any Group Company; or

 

(viii)

any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by a Group Company other than any permitted under sub-paragraphs (i) to (vii) above) does not exceed EUR [****] (or its equivalent at any time).

 

26.

Other Undertakings

 

The Borrower shall take note of the Bank’s group statement on tax fraud, tax evasion, tax avoidance, aggressive tax planning, money laundering and financing of terrorism (as published on the Bank’s website and as may be amended from time to time).

 

27.

Clauses by inclusion (most favoured nation)

 

If the Borrower or any other member of the Group concludes with any other financial creditor a financing agreement that includes a loss-of-rating clause or a covenant or other provision regarding its financial ratios, if applicable, that is not provided for in this Contract or is more favourable to the relevant financial creditor than any equivalent provision of this Contract is to the Bank, the Borrower shall promptly inform the Bank and shall provide a copy of the more favourable provision to the Bank. The Bank may request that the Borrower promptly executes an agreement to amend this Contract so as to provide for an equivalent provision in favour of the Bank.

 

28.

[****]

 

29.

Pari passu ranking

 

Each Obligor shall ensure that its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

Schedule I 

 

Information and Visits

 

1.

Information concerning the Investment

 

(a)

The Borrower shall deliver to the Bank:

 

(i)

the information in content and in form, and at the times, specified in Part A.2 (Information Duties) of Schedule A (Investment Specification and Reporting) or otherwise as agreed from time to time by the parties to this Contract;

 

(ii)

any such information or further document concerning the Investment as the Bank may reasonably require to comply with its obligations under the H2020 Legal Basis; and

 

(iii)

any such information or further document concerning the financing, procurement, implementation, operation and environmental matters of or for the Investment as the Bank may reasonably require within a reasonable time;

 

provided always that if such information or document is not delivered to the Bank on time, and the Borrower does not rectify the omission within a reasonable time set by the Bank in writing, the Bank may remedy the deficiency, to the extent feasible, by employing its own staff or a consultant or any other third party, at the Borrower's expense and the Borrower shall provide such persons with all assistance necessary for the purpose.

 

(b)

The Borrower shall submit for the approval of the Bank without delay any material changes to the Investment, also taking into account the disclosures made to the Bank in connection with the Investment prior to the signing of this Contract, in respect of, inter alia, the total cost, plans, timetable or to the expenditure programme or financing plan for the Investment.

 

(c)

The Borrower shall promptly inform the Bank of:

 

(i)

any action initiated or any objection raised by any third party or any genuine complaint received by the Borrower or any material Environmental Claim that is to its knowledge commenced, pending or threatened against it with regard to environmental or other matters affecting the Investment;

 

(ii)

any fact or event known to the Borrower, which may substantially prejudice or affect the Borrower's ability to execute the Investment;

 

(iii)

a genuine allegation, complaint or information with regard to Criminal Offences related to the Loan and/or the Investment;

 

(iv)

any non-compliance by it with any applicable Environmental Law; and

 

(v)

any suspension, revocation or modification of any Environmental Approval,

 

and set out the action to be taken with respect to such matters;

 

(d)

If the total cost of the Investment exceeds the estimated figure set out in Recital (A), the Borrower shall notify the Bank without delay and shall inform the Bank of its plans to fund the increased costs.

 

(e)

The Borrower shall, and shall procure that each other Group Company shall, promptly inform the Bank if at any time it becomes aware of the illicit origin (including products of money laundering or linked to the financing of terrorism) of any funds invested in the Investment by the Borrower or another Group Company.

 

(f)

The Borrower shall provide to the Bank, if so requested:

 

(i)

a certificate of its insurers showing that all assets required in order to carry out the Investment are insured with reputable underwriters or insurance companies against those risks and to the extent as is usual for companies carrying on the same or substantially similar business; and

 

 

(ii)

annually, a list of policies in force covering any aspect of the Investment, together with confirmation of payment of the current premiums.

 

2.

Information concerning the Borrower

 

(a)

The Borrower shall deliver to the Bank:

 

(i)

as soon as they become available but in any event within [****] days after the end of each of its financial years its audited consolidated and unconsolidated annual report, balance sheet, cash flow statement, profit and loss account and auditors report for that financial year together with a Compliance Certificate signed by one or more authorised signatories of the Borrower as appropriate and the unconsolidated financial statements (audited, if available) of each Obligor for such financial year;

 

(ii)

as soon as they become available but in any event within [****] days after the end of each of the relevant accounting periods its interim consolidated and unconsolidated semi-annual report, balance sheet, profit and loss account and cash flow statement for the first half-year of each of its financial years together with a Compliance Certificate signed by [****] authorised signatories of the Borrower as appropriate;

 

(iii)

such further information, evidence or document concerning its general financial situation or such certificates of compliance with the undertakings of Article 7 (Borrower undertakings and representations), when requested and within a reasonable time; and

 

(iv)

any such information or further document concerning the compliance with the due diligence requirements of the Bank including but not limited to “Know your customer” (KYC) or similar identification procedures, when requested and within a reasonable time;

 

(v)

from time to time, such further information, evidence or document concerning the factual information or documents provided to the Bank for the purposes of entering into this Contract, when requested and within a reasonable time;

 

(b)

The Borrower shall inform the Bank immediately of:

 

(i)

any Default or Event of Default having occurred or being threatened or anticipated;

 

(ii)

to the extent permitted by law, any material litigation, arbitration, administrative proceedings or investigation carried out by a court, administration or similar public authority, which, to the best of its knowledge and belief is current, threatened or pending:

 

(1)

against the Borrower or its controlling entities or members of the Borrower's management bodies in connection with Criminal Offences related to the Loan or the Investment; or

 

(2)

which might if adversely determined result in a Material Adverse Change;

 

(iii)

any measure taken by the Borrower pursuant to Paragraph 8 (Integrity) of Schedule H (General Undertakings);

 

(iv)

any Change in the Beneficial Ownership of the Borrower; and

 

(v)

any Voluntary Non-EIB Prepayment that has occurred or is likely to occur.

 

3.

Visits by the Bank

 

(a)

Each Obligor shall allow the Bank and, when either required by the relevant mandatory provisions of EU law or pursuant to the H2020 Legal Basis, as applicable, the European Court of Auditors, the Commission, the European Anti-Fraud Office, and the European Public Prosecutor’s Office, as well as persons designated by the foregoing:

 

[****] This symbol identifies certain confidential information contained in this document that has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.

 

 

(i)

to visit the sites, installations and works comprising the Investment;

 

(ii)

to interview representatives of each Obligor, and not obstruct contacts with any other person involved in or affected by the Investment; and

 

(iii)

to conduct such investigations, inspections, on the spot audits and checks as they may wish and review the Obligors’ books and records in relation to the execution of the Investment and to be able to take copies of related documents to the extent not prohibited by the law.

 

(b)

Each Obligor shall provide the Bank, or ensure that the Bank is provided, with all necessary assistance for the purposes described in this Paragraph 3 (Visits by the Bank).

 

(c)

In the case of a genuine allegation, complaint or information with regard to a Criminal Offence related to the Loan and/or the Investment, the Borrower shall consult with the Bank in good faith regarding appropriate actions. In particular, if it is proven that a third party committed a Criminal Offence in connection with the Loan and/or the Investment with the result that the Loan was misapplied, the Bank may, without prejudice to the other provisions of this Contract, inform the Borrower if, in its reasonable view, the Borrower should take appropriate recovery measures against such third party. In any such case, the Borrower shall in good faith consider the Bank’s views and keep the Bank informed.

 

4.

Disclosure and publication

 

(a)

The Borrower acknowledges and agrees that:

 

(i)

the Bank may be obliged to disclose and communicate information relating to the Borrower and the Investment to any competent institution or body of the European Union in accordance with the relevant mandatory provisions of European Union law or pursuant to the Horizon 2020 Legal Basis; and

 

(ii)

the Bank may publish in its website or produce press releases containing information related to the financing provided pursuant to this Contract, including the name, address and country of establishment of the Borrower, and the type of financial support received under this Contract.

 

(b)

If requested by the Bank, the Borrower undertakes to refer to this financing and other Bank financings in its public communications, if appropriate, during the availability period, and in connection with any drawdowns, and communications on major corporate events.

 

5.

Confidential information

 

To the extent the Borrower becomes listed on a regulated market and only on and from such time, where the Borrower provides information to the Bank in connection with this Contract, it shall clearly indicate whether or not such information is already public, and if it is confidential the Borrower shall ensure the public publication of such information at the same time, or immediately after, it is shared with the Bank. The Borrower will not share any inside information with the Bank before it is published to the market and shall notify the Bank as to whether such information constitutes inside information (for the purposes of the EU Market Abuse Regulation) at the time it is shared.

 

 

 

Exhibit 10.3

 

 

 

Business lease

 

between

 

EVAXION BIOTECH A/S

Bredgade 34 E

1260 Copenhagen K

Denmark

Company reg. (CVR) no. 31762863 (the “Tenant”)

 

and

 

DTU Science Park a/s

Venlighedsvej 10

2970 Hørsholm

Denmark

Company reg. (CVR) no.: 27546439 (the “Landlord”)

 

 

CONTENTS
1	Premises		4
2	Use of the premises		7
3	Changes to the premises		8
4	Commencement		9
5	Termination		9
6	Rent and rent adjustment		10
7	Deposit		11
8	Adjustment to market rent		11
9	Amendment of lease terms		12
10	Søhuset Konferencecenter		12
11	Operating accounts		12
	11.1	Taxes and charges	13
	11.2	Refuse collection	13
	11.3	Insurance	13
	11.4	Operating and service technicians	14
	11.5	Reception and communal facilities
	11.6	IT connections, etc.	14
	11.7	Electricity consumption	14
	11.8	Water consumption	14
	11.9	Video monitoring	15
	11.10	Outdoor areas	15
	11.11	Indoor communal areas (cleaning)
	11.12	Communal areas (maintenance and renewal)	16
	11.13	Technical installations and systems	16
	11.14	Building components and other installations	16
	11.15	Depreciation	16
	11.16	Administration	16
	11.17	Other expenses	17
12	Regulatory requirements		17
13	Insurance		17
14	Disposal of waste, etc.		18

 

 

15	Heating accounts		18
	15.1	Heat consumption	18
	15.2	Operating and service technicians	18
	15.3	Energy rating	18
	15.4	Repairs and maintenance	18
	15.5	Service contracts	19
	15.6	Reserves	19
	15.7	Administration	19
16	Tenant’s duty of maintenance		20
17	Landlord’s duty of maintenance		22
18	Surrender		23
19	Subletting and assignment		25
20	Signage		26
21	Danish Business Lease Act		26
22	Registration		26
23	VAT		27
24	Reservations		27
25	Special agreements		27
26	Disputes		27
27	Signatures		28
28	List of appendices		28

 

 

1 Premises

 

The premises are located at Dr Neergaards Vej 5 E-F, 2970 Hørsholm, Denmark and represent the entire property (BBR 78, 79, 80) and technical building located at BBR 78 (not erected on conclusion of this Lease Agreement).

 

The premises measure an estimated gross area of 1,356.37 sqm, it being noted that the technical building has still not been erected. The areas of the premises are allocated as follows:

 

BBR		Address		Gross area
BBR 78:		Dr Neergaards Vej 5 E		447.82 sqm
BBR 79:		Dr Neergaards Vej 5 E		416.29 sqm
BBR 80:		Dr Neergaards Vej 5 E		422.26 sqm
*BBRxxx:		Dr. Neergaards Vej 5 F, technical		70.00 sqm
		building:
Total:				1,356.37 sqm

 

* The building has not been erected. The final area will be calculated in accordance with the final drawing. The final area will have no effect on the agreed rent if the discrepancy is insignificant.

 

The postal address of the premises is Dr Neergaards Vej 5 F, 2970 Hørsholm, Denmark.

 

The calculation of the areas was made by the Landlord with binding effect. Executive Order no. 311 of 27 June 1983 on the calculation of residential and commercial space does not apply to the premises.

 

Both parties accept that a discrepancy, if any, cannot result in a change of the rent agreed in clause 6.

 

The Tenant does not have access to heat plants and other plantrooms without prior permission from the Landlord and may not use common areas for storage or placing of objects.

 

The premises comprise fittings and special furnishings belonging to the Landlord. This is described in the attached Appendix 5. Fittings, appliances, instruments, etc. not referred to in Appendix 5, and which are installed by the Tenant, belong to the Tenant. Equipment belonging to the Landlord will be supplied and installed by the Landlord. The equipment will be made available to the Tenant on commencement of this Lease Agreement, fully serviced and functional.

 

 

Any costs incurred in this connection will be paid by the Landlord. The parties agree that a final Appendix 5 will be drawn up once the project has been initiated and a final overview of the installations can be provided.

 

The location of the premises is specified on the attached drawing (Appendices 1A-C).

 

The premises are taken over in newly refurbished and newly fitted-up condition, and before the Tenant takes possession of the premises, the parties have agreed that the following works are to be carried out in the premises:

 

Office areas:

 

Taken over with a fresh coat of paint on all wall surfaces. Colour schemes for walls are agreed with the Tenant. Flooring consists of existing carpets and wooden floors, which are cleaned and treated to appear without any damage or defects of any kind. The Tenant is given access to inspect office premises at least three months prior to takeover, allowing for minor adjustments such as changes to conference room structures, silent rooms, etc. to be carried out prior to occupation. All changes will be agreed with the Landlord.

 

Storage premises:

 

Taken over with a fresh coat of paint and otherwise ‘as is’ and approved by the Tenant.

 

Laboratory premises:

 

Taken over fully refurbished and newly fitted up with new surfaces all around.

 

Fitting up and establishing of technical installations, systems, fittings, etc. are specified in the attached Appendix 8. See Basic Design Report to Appendix 8 of this Lease Agreement and Detailed Design Report. These include time schedules for project completion and a detailed budget for the estimated building costs. The budget has been specified by external advisers in Appendix 8 to the Lease Agreement. The Landlord is in charge of the project management of the refurbishment in collaboration with external advisers. The Tenant must participate to such an extent as to ensure that the Tenant’s needs are identified and met in the project. At meetings attended by the Tenant, the adviser will draw up minutes specifying all changes agreed. The minutes will be distributed to all participants. The parties have agreed to set up a steering committee consisting of the Tenant, the Landlord, the adviser and the contractor.

 

 

The parties have agreed that the Landlord will pay up to DKK 17,200,000.00 excluding VAT for the fitting out of the premises, including the establishment of laboratory facilities, technical building, etc., as specified in Appendix 8.

  

 

The Tenant will pay additional rent/“investment rent” to the Landlord with a monthly payment as set in clause 6. The payment has been agreed on the basis of an eight-year period with interest accrual of 6% p.a. as exemplified in Appendix 7. The additional rent is based on an investment amount of DKK 8,005,000.00. The remaining investment amount of DKK 9,195,000.00 is included in the rent set out in clause 6. The total final investment amount will not be known until the building project has been completed and when all building process costs have been estimated. An updated Appendix 7 is being drawn up with a calculation of the final investment rent.

 

In case of budget overruns or missed deadline, the parties have agreed as follows:

 

•              If the Tenant, after signing of the Lease Agreement, should have any requests for changing the agreed project, the Tenant bears the risk of such changes affecting the project’s expected completion and costs. Any expenses in excess of the preliminary budgeted investment cost will be paid by the Tenant unless otherwise agreed between the parties. This includes expenses for installations, machinery, appliances, instruments, etc. which are not included in the agreed project description. See Appendix 8.

 

•              In case of budget overruns stemming from unintentional or unsettled defects that prevent the Tenant from using laboratory premises, the parties have agreed that such costs will be evenly split (50% Evaxion, 50% DTUSP).

 

A meeting will be held on the date of taking possession with a representative of both the Landlord and the Tenant. On the basis of this meeting, the parties prepare a report of the condition of the premises at the date of taking possession. The report will be sent to the Tenant after occupancy. Before the meeting, the Landlord, the adviser and the contractor have held the handover meeting described in AB18 and remedied any outstanding defects. Additional errors or defects identified by the Tenant must be reported to the Landlord not later than two weeks after the Tenant has taken possession of the premises. In this context, the parties agree that there may be installations, technical facilities or other aspects of the project, the correct functioning of which it will take longer time for the Tenant to ascertain. Such aspects include adjustment of ventilation and heating control systems. Together with the supplier of the relevant systems, the parties will seek to resolve any adjustments without undue delay but not later than within four weeks of the Tenant having reported the matter. The Landlord undertakes to reduce any nuisance in connection with remedying, including trying to prevent the Tenant from suffering business interruption loss, damage to equipment, etc.

 

 

The Tenant and the Landlord have agreed that the Tenant accepts to relocate to other premises in the Landlord’s property portfolio in the area, if an extension of other tenancies in the property or general placement of existing or new tenants makes such relocation necessary. The Landlord and the Tenant agree that any relocation must be made to premises of the same size, standard and potential use, including a laboratory with animal housing facilities, by giving at least 12 months’ notice and generally on unchanged lease terms and conditions. The Landlord will pay all costs of moving the Tenant’s fittings, signage, etc., including equipment/machinery of any kind as well as any required calibration and re-installation.

 

The Tenant and the Landlord have agreed to communicate electronically. The Landlord may in full discharge send communication regarding the tenancy to the e-mail address, e-Boks or similar specified by the Tenant. The Tenant must inform the Landlord of any changes to the Tenant’s e-mail address, etc. Communications should be sent to info@dtusciencepark.dk.

 

2. Use of the premises

 

The premises may only be used for research and development purposes or the communicating of results thereof and limited production output in that connection. The premises may not be used for de-facto production activities.

 

The Tenant states that the premises will be used for laboratory and administrative functions in connection with the identification and development of drug candidates and may not without the Landlord’s permission be used for any other purposes.

 

The Tenant and the Landlord agree that the Premises are not business-protected under section 62 of the Danish Business Lease Act.

 

Upon takeover to the Tenant, the premises are legal under applicable planning and construction law. The Landlord will ensure that the supply and outlet capacity is sufficient for the use and application agreed on conclusion of this Lease Agreement.

 

After takeover, the Tenant is responsible for ensuring that the use and operation of the premises comply with regulatory requirements, rules, enforcement orders, legislation and the like in force from time to time, including private encumbrances and easements registered on the property. The Landlord is exempt from liability resulting from any non-compliance.

 

The Landlord is responsible for making any structural changes to the premises required on account of new planning and construction law requirements.

 

 

In that connection, the Landlord is under an obligation to coordinate such changes with the Tenant in order to avoid, to the widest extent possible, any nuisance, business interruption loss, disruption, etc. Costs incurred in that connection may be added to the rent collection, see clause 12.

 

After the takeover (see clause 1), the Landlord is not liable to the Tenant for the sufficient supply and outlet capacity of the premises for the intended use and application, provided the capacity agreed on conclusion of this Lease Agreement is in place. Any additional required supply and outlet lines resulting from extensions or new supplies relative to the original project will be installed by the Landlord at the Tenant’s expense, after the Tenant has approved the expenses and the project.

 

Any fire precautions, conversion, repair and fitting up required by the building authorities, working environment authorities or other authorities as conditions for the use of the premises contemplated by the Tenant, and which may become relevant or be imposed after the date of commencement of this Lease Agreement, will be arranged by the Tenant at the Tenant’s own account, see clause 12. Fire precautions, refurbishment, etc. in connection with the refurbishment described in clause 1 will be included in the project costs, with the Landlord documenting that approvals have been obtained for the requirements and applications of the premises described in the project material not later than four months after occupation.

 

The Tenant must, on an objective basis, indemnify the Landlord for any claim against the Landlord or for any damage to the premises which can be attributed to the Tenant’s use of the premises, including damage to buildings and land and groundwater due to pollution.

 

3. Changes to the premises_

 

The Tenant must not make structural changes or other significant alterations to the premises without the prior written consent of the Landlord.

 

Where such consent is given, the work must be carried on the basis of a drawn-up project plan and must be carried out by certified craftsmen. Also, the Tenant must ensure that applicable building regulations, regulatory requirements, etc. are complied with.

 

As a condition for granting consent, the Landlord is entitled to claim payment for administrative work such as updating drawings, supervision, etc.

 

 

The Tenant must ensure that the Tenant’s suppliers and craftsmen deliver operating and maintenance materials in accordance with the Landlord’s guidelines. Guidelines are available upon request.

 

Information on the right and duty to re-establish structural changes on vacating the premises is set out in clause 18 below.

 

4 Commencement

 

The Lease Agreement enters into force based on successive takeover of the areas according to the following model:

 

Dr Neergaards Vej 5 F (BBR 79+80) taken over at: 1 February 2021

 

Dr Neergaards Vej 5 E (BBR 78 + technical building) taken over at: 1 July 2021

 

By mutual agreement, the above dates may be adjusted by +/- 3 months, see the final project time schedule and completion. The parties agree that the time schedule should be observed to the extent the parties can influence the process, as described in clause 1.

 

5 Termination

 

This Lease Agreement is non-terminable by the Tenant for a period of ten years from the date of commencement of the Lease Agreement, see clause 4, after which date the lease may be terminated by the Tenant at 12 months’ notice for vacation on the last day of a month. This Lease Agreement is non-terminable by the Landlord for a period of ten years from the date of commencement of the Lease Agreement, see clause 4, and may only be terminated for the reasons and at the notices stipulated in the rules of the Danish Business Lease Act in force from time to time.

 

Termination of this Lease Agreement must be communicated in writing by letter to the address of the Landlord or by e-mail to info@dtusciencepark.dk.

 

Regardless of any non-terminability, the Tenant may always announce a wish to increase the area, and the Landlord undertakes to actively seek potential solutions, e.g. in adjacent buildings, in other relevant buildings or by an extension suited to meet the Tenant’s requirements.

 

If the Tenant announces a wish to reduce the area, the Landlord will also undertake to seek potential solutions. If no satisfactory solution can be found for the parties, the Tenant is entitled to sublet all or part of the premises, see clause 19.

 

 

6 Rent and rent adjustment

 

The annual rent on the date of taking possession of BBR 79+80 has been agreed at DKK 872,175.00 with expected takeover as set out in clause 4. The amount is calculated as follows:

 

Sqm		Description			Amount
416.29		Gross sqm office of DKK 1,055.65 (BBR 79)		DKK		439,455.00
422.26		Gross sqm office of DKK 1,024.77 (BBR 80)		DKK		432,720.00
Total				DKK		872,175.00

 

The annual rent when taking possession of BBR 78 has been agreed at DKK 2,096,547.00 with expected takeover as set out in clause 4. The amount is calculated as follows:

 

Sqm		Description			Amount
416.29		Gross sqm office of DKK 1,055.65 (BBR 79)		DKK		439,455.00
422.26		Gross sqm office of DKK 1,024.77 (BBR 80)		DKK		432,720.00
447.82		Gross sqm laboratory of DKK 2,609.02 (BBR 78)		DKK		1,168,372.00
*70.00		Gross sqm technical building of DKK 800.00		DKK		56,000.00
Total				DKK		2,096,547.00

 

*Estimated area. The price is fixed unless a significant square metre discrepancy is identified in connection with the final measurement.

 

The Tenant will make an additional annual payment of DKK 1,262,365.80, see Appendix 7, for a period of eight years from the date of taking possession of BBR 78. The Tenant is entitled to repay the outstanding debt, see Appendix 7, at any time by giving one month’s notice, which would end the annual payment.

 

In addition to the rent and the payment, see Appendix 7, the Tenant will pay expenses for the operating and heating accounts, see clauses 11 and 15, specified in Appendix 3, and a contribution to the “Søhuset” conference centre, see clause 10, Appendix 4.

 

If the Landlord fails to complete and hand over the building project within the deadlines described in Appendix 8, the Landlord will pay all expenses to ensure that project time schedules are accelerated to meet the time of delivery. In the event of continued delays, the Landlord will not be able to collect rent and payments, see the Lease Agreement, until the Tenant takes possession of the premises without any material errors or defects.

 

The rent and other payments under the Lease Agreement fall due for payment monthly in advance on the first day of the month, the first such payments to be made at the date of commencement of the Lease Agreement as set out in clause 4.

 

 

The Tenant must register payments for Betalingsservice (direct debit). If rent payments are not registered with Betalingsservice, a fee of DKK 50 per invoice will be charged. The amount is subject to annual indexation.

 

The rent is adjusted once a year without specific notice according to developments in Statistics Denmark’s net price index (2015=100), but by not less than 2% and not more than 4%. The adjustment is made each year on 1 January on the basis of the percentage change in the net price index at 1 October of the previous year. The first adjustment will be made at 1 January 2022 on the basis of the change in the net price index from 1 October 2020 to 1 October 2021.

 

The annual rent adjustments may be calculated using the following formula:

 

Current rent x new index		=  new annual rent
old index

 

If Statistics Denmark ceases to calculate the net price index, the parties will agree on a new and similar annual adjustment reflecting market developments. If the parties cannot reach an agreement, the Lease Agreement may be terminated by either party at the agreed notice, see clause 5.

 

7 Deposit

 

As security for all of the Tenant’s obligations under this Lease Agreement, including the payment of rent, operating and heating expenses, obligations on vacation, etc., the Tenant will pay DKK 1,048,273.50 corresponding to six months’ rent exclusive of VAT. Payment of the deposit must be effected not later than 28 days from the date of signing of this Lease Agreement.

 

The size of the deposit will be adjusted each year on 1 January such that it corresponds to six months’ rent at the present rent level.

 

The security deposit does not carry interest.

 

8 Adjustment to market rent

 

The Tenant and the Landlord agree that demands for rent adjustment to market rent may be made at any time, but not earlier than four years after the date of commencement of this Lease Agreement and not earlier than four years after the latest market rent adjustment according to section 13 of the Danish Business Lease Act if the current rent is significantly lower or significantly higher than the market rent.

 

 

The Tenant and the Landlord agree that adjustment to market rent can be made at six months’ notice.

 

Adjustment to market rent is carried out in accordance with the provisions of section 13(4) of the Danish Business Lease Act.

 

However, the rent and the payments agreed in this Lease Agreement can never be reduced to an amount which is below the agreed rent on the date of commencement date of this Lease Agreement with the addition of any subsequently agreed addenda to the Lease Agreement and the start rent agreed in such addenda.

 

9 Amendment of lease terms

 

The parties have agreed that section 14 of the Danish Business Lease Act does not apply to this Lease Agreement.

 

10 Søhuset Konferencecenter

 

At the time of signing of this Lease Agreement, the parties sign an agreement on membership of Søhuset Konferencecenter (conference centre) (Appendix 4). The agreement forms part of this Lease Agreement.

 

The Landlord will charge the related expenses to the Tenant in addition to the rent, see Appendix 4.

 

11 Operating accounts

 

In addition to the agreed rent, the Tenant pays the premises’ share of all taxes, charges, operating expenses and other relevant expenses regarding the property.

 

Unless otherwise agreed, the Landlord is responsible for all measures resulting in the above expenses.

 

For all expenses in clause 11, the Landlord undertakes to prepare accounts (operating accounts).

 

Operating expenses are apportioned among the tenants in the property proportionately on the basis of the gross floor areas leased and in respect of the areas to which the expenses relate. With respect to any changes to apportionment figures, reference is made to clause 1 of the Lease Agreement.

 

The Landlord may present expenses as the property’s proportionate share of the total expenses for two or more properties.

 

The accounting period is the calendar year, 1 January to 31 December. The Landlord may change the accounting period by giving two weeks’ notice in writing, and the transition period may include a period of more or less than twelve months.

 

 

However, the transition may not result in a settlement period of less than nine months or more than 15 months.

 

The expenses are specified and estimated in the attached Appendix as terms and conditions of this Lease Agreement and include, but are not limited to, the following:

 

11.1 Taxes and charges

 

Land tax, municipal charge allocated to the premises to which the tax relates, domestic refuse collection, environmental taxes, sewerage charges, refuse collection charges, road charges, rat extermination charges, etc.

 

Property taxes are determined by the Municipality of Rudersdal.

 

Land tax is apportioned per property based on the property’s share of the total land value for DTU Science Park Hørsholm, calculated according to built-up area relative to total building right.

 

Municipal charge levied on commercial property and refuse collection charges are apportioned per property based on the property’s share of the total property assessment for DTU Science Park Hørsholm.

 

This calculation method has been applied because the individual buildings in the science park have not been parcelled out into separate title numbers.

 

11.2 Refuse collection

 

Skip collection, including rental and emptying of skips. The Landlord makes normal refuse collection capacity available to office leases. The responsibility for removal of waste in addition to normal refuse collection capacity rests with the Tenant which, depending on the type of waste, is always required to comply with the relevant regulatory provisions.

 

Refuse skips may only be placed in the outside common areas with the Landlord’s permission, and the Landlord designates a place for them. Only closed skips may be used, and any recycling and sorting requirements must be met.

 

11.3 Insurance

 

Insurance premiums and insurance policy excess relating to the property, including building insurance (including insurance broker fees) and insurance of fittings and special installations pertaining to the property, as well as other insurance that may seem necessary and reasonable.

 

 

 

 

 

11.4 Operating and service technicians

 

Payroll costs for operating and service technicians incl. staff-related costs. In addition, other costs for staff associated with the property and expenses for external operating and service technicians.

 

11.5 Reception and communal facilities

 

Deleted.

 

11.6 IT connections, etc.

 

Item deleted. The Tenant will on its own initiative establish required IT connections etc. using an external supplier.

 

11.7 Electricity consumption

 

The premises’ and the property’s electricity consumption, including joint electricity consumption, e.g. for interior and exterior lighting, lighting in corridor areas, common areas, technical facilities, etc.

 

The Tenant’s consumption of electricity in areas and installations exclusively for the Tenant’s use is not comprised by the Landlord’s services and will be paid by the Tenant directly to the utility company according to meters installed and paid by the Landlord.

 

If the Landlord estimates that the Tenant’s electricity consumption is particularly high, the Landlord may, at the Tenant’s expense, install electricity meters on all power supply connections or on those on which a high electricity consumption is expected. In that case, the Tenant is obliged to pay for the consumption as per meter readings as well as any taxes and charges related thereto.

 

The Landlord accepts no responsibility for any temporary interruptions in the supply of electricity, but must ensure that such interruptions are remedied without delay.

 

11.8 Water consumption

 

The premises’ and the property’s consumption of water, including water charges and share of joint water charges where such costs are not covered by the heating accounts, see clause 15.

 

If the Landlord estimates that the Tenant’s water consumption is particularly high (relative to other tenants), the Landlord may, at the Tenant’s expense, install water meters on all water supply connections or on those on which a high water consumption is expected. In that case, the Tenant is obliged to pay for the consumption as per meter readings as well as any taxes and charges related thereto, including water drainage charge, green taxes, etc.

 

 

Tenant’s consumption of water in BBR 78 (lab building) is settled according to a meter installed and paid by the Landlord.

 

The Landlord accepts no responsibility for any temporary interruptions in the supply of water, but must ensure that such interruptions are remedied without delay.

 

11.9 CCTV system

 

Expenses for operating CCTV system in the area, including subscriptions, anti-burglar protection, operation of server rooms (operation of fire protection and cooling systems and expenses for repairs, maintenance and renewal).

 

11.10 Outdoor areas

 

Comprises expenses for cleaning, repairing and maintaining outdoor areas.

 

Expenses for gardener and tending, operation and renewal of grass areas, plants and vegetation of any kind. Operating and maintenance expenses for operating equipment, including vehicle excise duty, insurance, repairs and fuel. Salaries, including staff-related costs, contractors, cleaning of road drains, game management, etc.

 

Expenses for operation, maintenance and repairs of roads, parking spaces, terraces, pathways, other access areas, courtyards and the like. De-icing, including snow clearing, gritting and salting where necessary.

 

In addition, expenses for statutory anti-fall protection on roofs, maintenance and repairs of signs, lighting of areas, technical administration and supervision, weather station, etc.

 

11.11 Indoor communal areas (cleaning)

 

Upon signing of the Lease Agreement, the Tenant does not share indoor areas with other tenants. The Tenant has the duty of maintenance, and the item is deleted from the operating accounts. In case of subsequent extension with areas covered by the duty of shared cleaning, a new Appendix 3 will be prepared to take this into account.

 

 

11.12 Communal areas (maintenance and renewal)

 

Upon signing of the Lease Agreement, the Tenant does not share areas with other tenants for this item. The Tenant has the duty of maintenance, and the item is deleted from the operating accounts. In case of subsequent extension or change of this situation, a new Appendix 3 will be prepared to take this into account.

 

11.13 Technical installations and systems

 

Service contracts for the operation and maintenance of technical systems and installations on the property, including but not limited to, lifts, cooling systems, automatic fire alarm systems, other fire alarm systems, anti-burglar protection, emergency generators, emergency lights, compressed air units, vacuum, Inergen fire suppression system, voice alarm systems, smoke ventilation systems, grease traps and oil separators, BMS systems, CTS system, sprinkler systems, ACSs, automatic window control systems, gates, sliding doors, carbon dioxide meters, gas warning systems, etc. if such are installed in the building. Costs are also included for pest control subscriptions and operation and maintenance of HVAC systems, white goods, etc. Where the Landlord under the Lease Agreement has taken out subscriptions, for instance FM contracts for technical facilities in the lease, etc., the Landlord is entitled to charge the related expenses to the Tenant.

 

11.14 Building components and other installations

 

Repairs and maintenance of windows, skylights, solar screening as well as operating equipment intended for use on the property to the extent this is not covered by the Landlord’s maintenance obligation under clause 17 below or the matter falls within the separate maintenance obligation of a single tenant. Expenses also include any statutory and regulatory changes to the fitting-out of the property as well as installations for common use.

 

11.15 Depreciation

 

Item deleted.

 

11.16 Administration

 

Including fees for the preparation of operating accounts, costs of management and administration. Including budget management, invoice management, supplier and tenant enquiries, documentation, etc.

 

 

11.17 Other expenses

 

The specification concerns only types of expenses known at the time of conclusion of the Lease Agreement. If new or changed operating expenses should arise later on due to installations etc. which the Tenant and the Landlord have jointly agreed to establish, the Landlord will also be entitled to include expenses for operating such installations in the operating accounts. The Landlord complies with the rules of section 51 of the Danish Business Lease Act with respect to other expenses.

 

To cover the Tenant’s share of the above-mentioned expenses, the Tenant must pay a monthly on-account amount together with the rent calculated at DKK 12,200.00, see Appendix 3A, on taking possession of BBR 79+80. On taking possession of BBR 78 + the technical building, the expenses will rise by DKK 7,800.00 per month, see Appendix 3A. The first payment must be made at the date of commencement of the Lease Agreement.

 

The Landlord is entitled to adjust the on-account amount to match the anticipated expenses.

 

Operating accounts will be prepared per building, as defined by the Landlord. BBR 79+80 represent one building, and BBR 78 + the technical building represent one building.

 

12 Regulatory requirements

 

If, after the date of commencement of the Lease Agreement, the Landlord incurs expenses in respect of the property due to regulatory requirements regarding the Tenant’s use of the premises, the Landlord is entitled to pass on such expenses to the Tenant. In that case, any expenses must be paid from the time when the Landlord incurs the expense.

 

13 Insurance

 

The Landlord takes out insurance against building fire and other building damage, see clause 11.3. Insurance costs are paid by the Tenant as part of the operating expenses. The costs are shown in Appendix 3. The insurance does not cover the Tenant’s consequential loss or any other indirect losses.

 

If the Tenant’s use of the premises calls for special insurance or a higher premium, the Tenant will pay any related costs.

 

The insurance of the Tenant’s contents, fittings, etc. is of no concern to the Landlord.

 

 

14 Disposal of waste, etc.

 

The Tenant must at any time follow the Landlord’s instructions for the disposal of waste and refuse collection. The Landlord will charge the related expenses to the Tenant, see Appendix 3.

 

The Tenant must handle commercial refuse pursuant to the regulations on commercial refuse issued by the Municipality of Rudersdal. The directions in force from time to time can be obtained from the Landlord upon request. The use of skips must be agreed with the Landlord.

 

15 Heating accounts

 

The Landlord is responsible for the supply of heating and hot water to the property.

 

The Tenant is required to take its entire consumption of heating in accordance with the Landlord’s instructions. The Tenant may not establish any alternative heating supply without the written consent of the Landlord.

 

The expenses are determined by the Landlord’s preparation of accounts of such expenses.

 

A specification of expenses is provided as Appendix 3 to this Lease Agreement, including expenses for:

 

15.1 Heat consumption

 

All expenses for district heating supply.

 

15.2 Operating and service technicians

 

Payroll costs for operating and service technicians incl. staff-related costs. In addition, other costs for staff associated with the property and expenses for external operating and service technicians.

 

15.3 Energy rating

 

All expenses for the “Energy Label Scheme” and the “Energy Management Scheme” or any other similar requirements imposed on the property by public authorities.

 

15.4 Repairs and maintenance

 

All expenses associated with the operation of systems and installations to supply the property with heating and hot water as well as ventilation, including spare parts and statutory control schemes, etc.

 

 

 

15.5 Service contracts

 

Service contracts for the operation and maintenance of heating and ventilation systems, including electrolysis and other expenses for servicing of systems and installations.

 

15.6 Reserves

 

Reserves for renewal of the property’s installations to supply heating and hot water. The reserves are made on the basis of the expected lifetime of the installations and the replacement cost applicable from time to time. The reserves will be projected annually according to the adjustment agreed in clause 6 if the replacement cost is not recalculated on the basis of new quotations.

 

15.7 Administration

 

Administration and fee for meter reading, apportioning and preparing accounts.

 

The Landlord accepts no responsibility for any temporary interruptions in the heating supply, but must ensure that such interruptions are remedied without undue delay. The Landlord will commence remedying within 24 hours from being notified of the interruption.

 

The Landlord is entitled to the extent necessary to shut down the heating supply in the summer period for the purpose of carrying out system maintenance, etc. when agreed with the Tenant and provided this does not cause interruptions in the Tenant’s ongoing activities.

 

The Tenant undertakes to keep the leased premises frost-free provided that heating is supplied to the premises.

 

Overall heating accounts are prepared for premises in the property or for units participating in a shared supply with the property.

 

The Landlord may restrict or expand the units sharing utility supply with the property and may change the apportionment among the units participating in the shared utility supply.

 

The utility charges are distributed between the tenants, partly on the basis of meters, if any, installed in the individual premises and partly according to apportionment figures, see Appendix 3.

 

 

The Landlord may present expenses as the property’s proportionate share of the total expenses for two or more properties.

 

The accounting period commences on 1 January and ends on 31 December. The Landlord may change the accounting period by giving two weeks’ notice in writing, and the transition period may include a period of more or less than twelve months. However, the transition may not result in a settlement period of less than nine months or more than 15 months.

 

Part 9 of the Danish Business Lease Act on presentation of heating accounts applies.

 

On conclusion of the Lease Agreement, the monthly on-account payment for heating supply amounts to DKK 9,500.00, see Appendix 3A, on taking possession of BBR 79+80. On taking possession of BBR 78 + the technical building, the expenses will rise by DKK 5,400.00 per month, see Appendix 3A. The first payment must be made at the date of commencement of the Lease Agreement.

 

For the purpose of complying with section 5(2) and (3) of the Danish Business Lease Act, the type and estimated size of the expenses are set out in Appendix 3. The first payment must be made at the date of the commencement of the Lease Agreement, as set out in clause 4.

 

16 Tenant’s duty of maintenance

 

The Tenant is responsible for all interior maintenance of the premises, including installations and systems etc. not comprised by the Landlord’s duty of maintenance, see clause 17, to the extent that such work is necessary for the premises to be kept in a good state of repair and condition, corresponding to the state in which the Tenant took possession of the premises.

 

Maintenance means both repairs and renewal. The Tenant’s duty of maintenance comprises the following:

 

·

Internal surfaces and finishes of ceilings, walls, floors, doors, gates, windows, woodwork and pipes, whether painted, oiled or similarly treated surfaces, as well as flag, tile, linoleum, carpet or other surfaces.

 

·

Internal doors, walls, window glazing (except for failed double-glazed units) and skylights.

 

·

Door handles, hinges and fittings, locks, keys and key code.

 

·

Gas pipes from and including branch-off from through-going pipes.

 

 

·

Power installations from main electricity meter, such as ground fault circuit interrupters, fuses, overload circuit breakers, cables, wires, sockets, joints and splices, fittings, light sources, coils, interrupters, power points and other installations not mentioned in Appendix 5.

 

·

Low-voltage systems of any kind, including systems related to telephones, IT, alarms, control and instrument panels, sockets, wires, cable boxes, hubs, racks and others.

 

·

Signal control systems, including network installations, etc. – both separate systems in their entirety and multi-user systems from and including the branch-off from through-going pipes and installations. The Landlord will ensure that the systems have been tested and are functional before the Tenant takes possession.

 

·

Cat6 installations will be carried out and their functioning tested before the Tenant takes possession. The Tenant has the duty of maintenance after having taken possession of the leased premises.

 

·

Fittings, valves and control handles of any kind for heating, water, outlets, drains and the like.

 

·

Sanitation, including but not limited to toilets, sinks, shower cabins, etc.

 

·

Laboratory fittings, see description in Appendix 5.

 

·

Wardrobe, restroom, bathroom and kitchen equipment.

 

·

White goods, canteen equipment and machinery, including for freezing, refrigerating, cooking, dishwashing, washing and drying of the same quality as on commencement of the lease.

 

·

Fire applications and safety equipment of any type installed or set up by the Tenant.

 

·

Other similar items belonging to the Leased Premises.

 

Maintenance works for which the Tenant is responsible must be carried out without delay when defects have been identified. If such works are not carried out following reasonable notice, the Landlord is entitled to have the works in question performed at the Tenant’s expense. Reimbursement of such expenses constitutes a mandatory payment under this Lease Agreement.

 

If the Tenant causes damage to the Landlord’s property, whether to building parts, installations, systems or fittings, etc., the Landlord is entitled to repair such damage at the Tenant’s expense. In the event that any damage which the Tenant must remedy cannot be attributed to a single unit, the repair or maintenance will be carried out by the Landlord at the tenants’ expense.

 

 

Special installations established for use by the Tenant concerning these premises will be operated and maintained by the Tenant unless otherwise provided in Appendix 5. A revised/final Appendix 5 will be drawn up once the project phase has been commenced and prices, installations, etc. have been finalised.

 

The Tenant undertakes to maintain special installations pursuant to the directions of the supplier/manufacturer applicable from time to time, or directions issued by the Landlord.

 

The Tenant must be able to document that special installations have been maintained and serviced in accordance with such directions.

 

The Landlord is entitled, at least once a year, together with the Tenant to review the premises and agree the extent to which necessary repairs and maintenance work must be carried out.

 

17 Landlord’s duty of maintenance

 

The Landlord undertakes to perform and pay for the maintenance and renewal of common building components and installations to the extent that such maintenance does not fall within the Tenant’s maintenance obligation or other provisions of this Lease Agreement, including the following:

 

·

Load-bearing structures, including foundations, suspended floors, load-bearing walls and partitions delimiting separate leased premises.

 

·

Building envelope, including but not limited to roof and façades.

 

·

External surfaces and claddings, including but not limited to surfaces of external doors, windows including reveals, seams and seals.

 

·

Drainage installations in the form of stack pipes until branches.

 

·

Power installations until and including the main electricity meter.

 

·

Power and HVAC installations concealed in construction or walls, etc.

 

·

Ventilation and air conditioning systems for air change, air cleaning and air cooling – including through-going pipes and common installations in multi-user systems until branch-offs.

 

·

Signal control systems, including network installations, etc. – both through-going cables and common installations in multi-user systems until branch-offs.

 

·

Special systems installed in laboratory facilities are specified in Appendix 5, including which of the parties is responsible for and has a duty of maintenance, service, renewal, etc.

 

 

The Landlord must maintain the systems and installations for supplying heating and hot water, including heating system/heat exchanger, pumps, heating pipes and radiators (except for radiator valves), systems for heating, storing and distributing hot domestic water, hot-water pipe system and systems for regulating and managing heating and hot water. The Landlord’s costs of maintaining the above-mentioned utility installations are included in the costs recognised in the operating and heating accounts.

 

The Landlord is entitled to initiate works both within and outside the Leased Premises in accordance with the provisions of Part 5 of the Danish Business Lease Act.

 

Subject to prior notice, the Landlord and its engineers and experts are entitled to gain access to the premises as per the Tenant’s directions, e.g. with respect to BLS2, confidential areas, etc. during normal working hours in order to prepare or carry out maintenance works. The works must be carried out so as to cause as little inconvenience to the Tenant as possible. The Landlord and its engineers and experts are also entitled to gain access to the premises without notice if necessary for purposes of urgent intervention or repairs.

 

18 Surrender

 

On termination of the Lease Agreement, the Tenant must ensure that the premises undergo refurbishment, including of flooring, painting of walls and, where relevant, other painted surfaces to the effect that all surfaces are in the same condition as at the date of taking possession. The premises are otherwise surrendered in a clean and well-maintained condition without damage or defects of any kind.

 

The Tenant has a duty, but not a right, to re-establish structural changes on vacating the premises. This also applies where the Landlord has granted his consent to the changes. In case of changes to the premises, the parties agree whether or not the change must be restored on termination of the Lease Agreement. Agreed structural changes prior to taking possession should not be restored on termination of the Lease Agreement.

 

If the leased premises are vacated by the Tenant before the agreed period of non-terminability expires, see clause 5, the Tenant will pay to the Landlord the residual depreciation on the Landlord’s investment, see Appendix 10 and the residual investment rent, see Appendix 7.

 

 

If the Tenant vacates the premises at the Landlord’s request (see clause 1), the Landlord’s claim for the above-mentioned repayment of residual depreciation and investment rent will lapse. (a new appendix regarding depreciation will be prepared).

 

If the Tenant vacates the premises at the Landlord’s request (see clause 1), the Tenant’s duty of refurbishment on vacation of the areas in question will lapse.

 

The Tenant must surrender all keys, tags, codes and access cards and the like to the premises on termination of the Lease Agreement. This includes keys, tags, codes and access cards and the like to alarm systems and access points installed by the Tenant. Any refurbishment obligations ascertained in connection with the moving-out inspection as described below will be carried out by the Landlord for the account of the Tenant.

 

If the remedial work has not been completed before termination of the Lease Agreement, the Landlord may demand payment for services under clauses 6, 11 and 15 until the premises have been brought into contractual condition. The parties agree that the Landlord is entitled to demand that the value of the cost of the identified works and improvement according to the moving-out report be capitalised and that the calculated costs with addition of any relevant engineering fee be paid in cash by the Tenant to the Landlord not later than seven days after receipt of the statement.

 

On or before the termination of the Lease Agreement, a moving-out inspection will be held with a representative attending for both the Landlord and the Tenant. On the basis of this moving-out inspection, the parties will prepare a report of the condition of the premises. Together with the moving-in report prepared on occupation, this report forms the basis of any claims for repair work of the Landlord. Immediately after the moving-out inspection, the Landlord must invite a quotation for the execution of the repair works specified in the moving-out report. If the Tenant disagrees with the specified amount, the Tenant is at liberty, on the basis of the moving-out report, to invite an independent quotation for the works and improvements identified by the Landlord. Within seven business days of its receipt of the moving-out report, the Tenant must notify the Landlord in writing that the Tenant wants to invite an independent quotation. The quotation obtained by the Tenant must be fully comparable with the requirements specification prepared by the Landlord. If, against the background of the quotation obtained by the Tenant, the parties disagree over the size of the expense, the parties must mutually appoint an independent expert valuer for determining the final size of the amount. The final value established by the expert valuer cannot be challenged by any of the parties, and the amount is payable in cash by the Tenant in full and final settlement of the claim (after offsetting the deposit amount) within seven business days of the receipt of the valuer’s written notification establishing the size of the amount.

 

 

 

The costs of the expert valuer’s assessment will be shared equally between the parties.

 

In connection with the moving-out inspection, the moving-out report will be based on all painted surfaces being surrendered with a fresh coat of paint, and flooring, doors, ceiling sheets and window sills and installations comprised by the Tenant’s duty of maintenance must be in a functional condition, clean and maintained and otherwise in the same state of repair and condition as on the date of taking possession.

 

The Landlord must forward the moving-out report to the last known address of the Tenant. The time limit of four weeks set out in section 74(2) of the Danish Business Lease Act has been extended to eight weeks.

 

If, on the date of termination, the leased premises comprise laboratories or animal buildings classified according to Danish working environment legislation, environmental laws, radiation legislation or the like, these premises must be downgraded and cleaned by the Tenant prior to vacating the premises. On surrender, the Tenant must provide documentation of having carried out the downgrade and deregistration with the relevant authorities, including the Danish Working Environment Authority. Failure to provide documentation will entitle the Landlord to collect rent and other mandatory payments until the documentation is available.

 

The Landlord has prepared inspirational materials which may be used in connection with the downgrading and cleaning of laboratories. The inspirational materials are available upon request.

 

19 Subletting and assignment

 

The Tenant is not entitled to assign the premises.

 

The Tenant has a right of subletting parts or all of the premises. Subletting must take place subject to the provisions of clause 2 hereof and applicable provisions issued by the public authorities from time to time, including the local development plan for the area.

 

The Tenant has a duty, by giving one month’s notice, to inform the Landlord of any subtenancy established, including to disclose the name and activities of the business and the date of commencement of the subletting agreement.

 

 

20 Signage

 

The Landlord has drawn up an overall signage plan for DTU Science Park in Hørsholm to ensure consistent signage, and the Landlord is therefore in charge of all signage, visibility and clarity, ensuring that signage is not covered by vegetation, temporary stocks, etc. On occupation, the Tenant pays DKK 8,500.00 for signage, covering costs of production and installation of signs. If the Tenant wishes to have additional signage, this requires the Landlord’s written consent. If signage is established contrary to this, the Landlord is entitled to remove the signage at the Tenant’s expense.

 

If the Tenant moves from one property to another, existing signage will be reused to the widest extent possible. Relocation costs and costs of any new signs will be paid by the Tenant on a time spent basis, and the Tenant will pay the production costs of an external supplier.

 

If the Tenant extends its premises in an existing building, the Tenant will pay the costs of any new signs on a time spent basis, and the Tenant will pay the production costs of an external supplier.

 

If the Tenant changes its name, the Tenant will pay the costs of any new signs on a time spent basis, and the Tenant will pay the production costs of an external supplier.

 

The Landlord has stated that the local development plan for the area does not allow for signage on the facade of the building, roof, etc. The Tenant declares to accept this.

 

21 Danish Business Lease Act

 

The general provisions of the Danish Business Lease Act apply to this Lease Agreement unless derogated from in the above provisions. The Tenant has been informed that the provisions of this Lease Agreement derogate from the provisions of the Danish Business Lease Act to the effect that the Lease Agreement imposes more extensive obligations on the Tenant and fewer rights than provided by the Danish Business Lease Act. Appendices 1-10 comprise a part of the contractual basis between the Landlord and the Tenant.

 

22 Registration

 

The Tenant may have this Lease Agreement registered on the property. The Lease Agreement must rank after any existing and future charges and encumbrances registered prior to the filing of the Lease Agreement for registration.

 

 

On termination of this Lease Agreement, the Tenant is required to cancel the registration of the Lease Agreement. The deposit will not be repaid, in whole or in part, until the registration of the Lease Agreement has been cancelled. If cancellation has not been effected within 14 days of the effective date of termination, the Landlord is entitled but not obliged to arrange for such cancellation for the Tenant’s account as the Tenant’s written notice of termination or the bailiff’s note on the court document in case of eviction proceedings may form the basis of cancellation.

 

23 VAT

 

Rent, deposit and all other payments under the Lease Agreement are subject to VAT.

 

24 Reservations

 

On the part of both parties, this Lease Agreement is conditional on:

 

	•	an agreement on planning and establishment costs and time schedule satisfactory for both parties being reached, see clause 1
	•	an agreement on vacation with existing tenants satisfactory for both parties being reached, under which refurbishment of the leased premises may commence according to the time schedule, and the effective dates set out in clause 4 can be observed.

 

25 Special agreements

 

The parties have agreed that expenses for planning, including external advisers, should be distributed as set out in Appendix 9 (TIC estimation, Proposal reference: 060042002) from NNE, with the following distribution:

 

•

Expenses for item 1.2.1 are covered 100% by the Landlord

•

Expenses for item 1.2.2 are covered 50% by the Landlord and 50% by the Tenant

•

Expenses for item 1.2.3 are covered 67% by the Landlord and 33% by the Tenant

 

If, contrary to expectations, the project is not completed, the planning costs will be divided evenly between the parties. The project material will belong to the Tenant.

 

26 Disputes

 

Any dispute that may arise in connection with this Lease Agreement must be resolved by the Danish Institute of Arbitration.

 

 

Each party appoints one arbitrator, and the Institute appoints the chairman of the arbitration tribunal. If a party has not appointed an arbitrator within 30 days of having requested or received notice of the arbitration, such arbitrator will also be appointed by the Institute in accordance with the above rules.

 

27 Signatures

 

This Lease Agreement is signed by the persons authorised to sign, using digital signatures via NemID and Penneo.

 

As Landlord		As Tenant
DTU Science Park a/s		EVAXION BIOTECH A/S
Company reg. (CVR) no. 27546439		Company reg. (CVR) no. 31762863
Steen Donner, CEO		The company is bound by the joint
Niels Korsholm, Chairman of the Board		signatures of two members of the executive board or by the joint signatures of one member of the executive board and one member of the board of directors.

 

28 List of appendices

 

Appendix 1A: Drawing of location of the premises, BBR 78

 

Appendix 1B: Drawing of location of the premises, BBR 79

 

Appendix 1C: Drawing of location of the premises, BBR 80

 

Appendix 2: Video monitoring guidelines

 

Appendix 3A: Operating and heating budget – DNV5E

 

Appendix 3B: Operating and heating budget – DNV5F

 

Appendix 4: Agreement on membership of Søhuset

 

Appendix 5: List of special installations (updated version will be attached after signing of the Lease Agreement)

 

Appendix 6: Vacation of classified laboratories

 

Appendix 7:

 

Additional rent – Calculation of payment

 

Appendix 8: Project description

 

Annex 8A: Basic Design Report Ver4.0

 

EVAX-2-BD-99-01000-01-002

 

EVAX-2-BD-90-00020-01-002

 

EVAX-2-BD-99-00020-01-002

 

EVAX-2-BD-99-00020-02-00A

 

Annex 8B: Detailed Design Report (attached after signing of the Lease Agreement)

 

Appendix 9: TIC Estimation

 

Appendix 10: Residual value on termination of Lease Agreement

 

 

 

 

The signatures in this document are legally binding. The document was signed via Penneo ^TM secure digital signature.

The identities of the signatories have been registered and the information is listed below.

 

“By signing this document, I confirm the contents and all dates in this document.” 

 

Niels Iversen Møller			Lars Aage Staal Wegner
Tenant			Tenant
On behalf of: Evaxion Biotech A/S			On behalf of: Evaxion Biotech A/S
Serial number: PID:9208-2002-2-738148644802			Serial number: PID:9208-2002-2-876279585700
IP: 62.243.xxx.xxx			IP: 130.185.xxx.xxx
01/10/2020 07:37:42Z			2020-10-01 12:02:54Z

 

Steen Donner			Niels Jørgen Korsholm
Landlord			Landlord
On behalf of: DTU Science Park a/s			On behalf of: DTU Science Park A/S
Serial number: CVR:27546439-RID:71095247			Serial number: PID:9208-2002-2-354907681656
IP: 80.62.xxx.xxx 2020-10-01 18:13:29Z			IP: 2.109.xxx.xxx 2020-10-02 05:32:49Z

 

This document was digitally signed via Penneo.com. The signature certificates in this document have been secured and validated using the mathematical hash value of the original document. The document is locked and cannot be modified, and it contains a time stamp with a certificate from a trusted third party. All cryptographic signature certificates are embedded in this PDF in case they are needed for future validation.

 

This is your guarantee that the contents of the document have not been modified.

 

You can verify the cryptographic signature certificates embedded in the document by using Penneo’s validator at this website: https://penneo.com/validate

 

How to ensure that this document is original

 

This document is protected with an Adobe CDS certificate. When you open the document in Adobe Reader, you can see that the document is certified by Penneo e-signature service<penneo@penneo.com>.

 

 

Exhibit 21.1

 

List of Subsidiaries of the Registrant

 

1.	Evaxion Biotech Australia PTY LTD

 

 

Exhibit 23.1 

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the reference to our firm under the caption "Experts" and to the use of our report dated October 22, 2020 (except for the stock split and the bonus share issuance of the Company’s ordinary shares as described in Note 21, as to which the date is January 4, 2021), with respect to the financial statements of Evaxion Biotech A/S for the years ended December 31, 2019 and 2018 and as of January 1, 2018, in the Registration Statement (Form F-1) and related Prospectus of Evaxion Biotech A/S for the registration of its ordinary shares.

 

/s/ EY Godkendt Revisionpartnerselskab

 

Copenhagen, Denmark

 

January 8, 2021

 

 

 

Exhibit 99.1

 

NEW YORK LONDON SINGAPORE PHILADELPHIA CHICAGO WASHINGTON, DC SAN FRANCISCO SILICON VALLEY SAN DIEGO LOS ANGELES TAIWAN BOSTON HOUSTON AUSTIN HANOI HO CHI MINH CITY

FIRM and AFFILIATE OFFICES     Dwight A. Kinsey DIRECT DIAL: +1 212 404 8727 PERSONAL FAX: +1 212 818 9606 E-MAIL: DAKinsey@duanemorris.com   www.duanemorris.com

SHANGHAI ATLANTA BALTIMORE WILMINGTON MIAMI BOCA RATON PITTSBURGH NEWARK LAS VEGAS CHERRY HILL LAKE TAHOE MYANMAR ALLIANCES IN MEXICO AND SRI LANKA

 

January 8, 2021

 

VIA EDGAR

 

United States Securities and Exchange Commission Division of Corporation Finance Office of the Chief Accountant 100 F Street, N.E. Washington, D.C.  20549-6010

Re:

Evaxion Biotech A/S Registration Statement on Form F-1 Filed on January 8, 2021 Application for Waiver of Requirements of Form 20-F, Item 8.A.4 CIK No. 0001828253

 

Ladies and Gentleman:

 

On behalf of Evaxion Biotech A/S (the “Company”), which has, on the date hereof, filed with the Securities and Exchange Commission (the “Commission”) its Registration Statement on Form F-1 (the “Registration Statement”) relating to a proposed initial public offering (“IPO”) of the Company’s ordinary shares, we respectfully request from the staff of the Commission (the “Staff”) a waiver of the requirements of Item 8.A.4 of Form 20-F. This letter is filed as Exhibit 99.1 to the Registration Statement.

 

The Registration Statement contains audited financial statements for each of the two years ended December 31, 2019 and December 31, 2018, and unaudited interim consolidated financial statements for the nine months ended September 30, 2019 and 2020, in each case prepared in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board. Item 8.A.4 of Form 20-F, which is applicable to the Registration Statement pursuant to Item 4(a) of Form F-1, states that because this is the Company’s IPO, the Registration Statement must include audited financial statements of a date not older than 12 months unless a waiver is obtained. See also Division of Corporation Finance, Financial Reporting Manual, Section 6220.3.

 

 

United States Securities and Exchange Commission January 8, 2021 Page 2

 

Instruction 2 to Item 8.A.4 of Form 20-F provides that the Commission will waive the 12-month age of financial statements requirement “in cases where the company is able to represent adequately to us that it is not required to comply with this requirement in any other jurisdiction outside the United States and that complying with this requirement is impracticable or involves undue hardship.” See also the Staff’s 2004 release entitled International Reporting and Disclosure Issues in the Division of Corporation Finance (available on the Commission’s website at http://www.sec.gov/divisions/corpfin/internatl/cfirdissues1104.htm), Section III.B.c, in which the Staff notes:

 

“…the instruction indicates that the staff will waive the 12-month requirement where it is not applicable in the registrant’s other filing jurisdictions and is impracticable or involves undue hardship. As a result, we expect that the vast majority of IPOs will be subject only to the 15-month rule. The only times that we anticipate audited financial statements will be filed under the 12-month rule are when the registrant must comply with the rule in another jurisdiction, or when those audited financial statements are otherwise readily available.” (emphasis added)

 

We hereby respectfully request that the Staff waive the requirement of Item 8.A.4 of Form 20-F applicable to the Registration Statement. In connection with this request, the Company represents to the Staff that:

 

	1.	The Company is not currently a public company in any other jurisdiction.
	2.	The Company is not required by any jurisdiction outside the United States, including the Kingdom of Denmark (its jurisdiction of incorporation), to have audited financial statements as of a date not older than 12 months from the date of filing a Registration Statement.
	3.	Compliance with Item 8.A.4 is impracticable and involves undue hardship for the Company.
	4.	The Company does not anticipate that its audited consolidated financial statements for the year ended December 31, 2020, will be available until March 2021.
	5.	In no event will the Company seek effectiveness of the Registration Statement if its audited financial statements are older than 15 months at the time of the offering.

 

 

United States Securities and Exchange Commission January 8, 2021 Page 3

 

Please do not hesitate to contact me by telephone at 212-404-8727 or by email at dakinsey@duanemorris.com with any questions or comments regarding this correspondence.

 

	Very truly yours,
	/s/ Dwight A. Kinsey
	Dwight A. Kinsey

 

cc:	Lars Staal Wegner, Evaxion Biotech A/S Glenn S. Vraniak, Evaxion Biotech A/S Rina R. Patel, Duane Morris LLP