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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 13D
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Under the Securities Exchange Act of 1934
(Amendment No. 1)*
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Celyad Oncology SA
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(Name of Issuer)
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Ordinary shares, no nominal value per share
(Title of Class of Securities)
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151205200**
(CUSIP Number)
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David N. Brooks
Fortress Investment Group LLC
1345 Avenue of the Americas, 46th Floor
New York, NY 10105
(212) 798-6100
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
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August 21, 2023
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(Date of Event which Requires Filing of this Statement)
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If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e),
240.13d-1(f) or 240.13d-1(g), check the following box: □
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Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
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| * |
The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover page.
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| ** |
This CUSIP number applies to the Issuer’s American Depositary Shares, evidenced by American Depositary Receipts, each representing one ordinary share of the Issuer.
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The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the
liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
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1
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NAMES OF REPORTING PERSONS
CFIP CLYD LLC
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) □
(b) □
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
AF
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
□
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
0
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8
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SHARED VOTING POWER
6,500,000
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9
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SOLE DISPOSITIVE POWER
0
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10
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SHARED DISPOSITIVE POWER
6,500,000
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,500,000
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
□
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.8%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO
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1
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NAMES OF REPORTING PERSONS
FIP II UB Investments LP
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) □
(b) □
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
AF
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
□
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
0
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8
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SHARED VOTING POWER
6,500,000
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9
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SOLE DISPOSITIVE POWER
0
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10
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SHARED DISPOSITIVE POWER
6,500,000
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,500,000
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
□
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.8%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
PN
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1
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NAMES OF REPORTING PERSONS
FIP Fund II GP LLC
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) □
(b) □
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
AF
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
□
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
0
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8
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SHARED VOTING POWER
6,500,000
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9
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SOLE DISPOSITIVE POWER
0
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10
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SHARED DISPOSITIVE POWER
6,500,000
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,500,000
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
□
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.8%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO
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1
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NAMES OF REPORTING PERSONS
Hybrid GP Holdings LLC
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) □
(b) □
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
AF
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
□
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
0
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8
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SHARED VOTING POWER
6,500,000
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9
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SOLE DISPOSITIVE POWER
0
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10
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SHARED DISPOSITIVE POWER
6,500,000
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,500,000
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
□
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.8%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO
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1
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NAMES OF REPORTING PERSONS
FIG LLC
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) □
(b) □
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
AF
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
□
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
0
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8
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SHARED VOTING POWER
6,500,000
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9
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SOLE DISPOSITIVE POWER
0
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10
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SHARED DISPOSITIVE POWER
6,500,000
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,500,000
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
□
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.8%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO
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1
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NAMES OF REPORTING PERSONS
Fortress Operating Entity I LP
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b) □
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
AF
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
□
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
0
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8
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SHARED VOTING POWER
6,500,000
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9
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SOLE DISPOSITIVE POWER
0
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10
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SHARED DISPOSITIVE POWER
6,500,000
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,500,000
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
□
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.8%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
PN
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1
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NAMES OF REPORTING PERSONS
FIG Corp.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) □
(b) □
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
AF
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
□
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
0
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8
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SHARED VOTING POWER
6,500,000
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9
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SOLE DISPOSITIVE POWER
0
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10
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SHARED DISPOSITIVE POWER
6,500,000
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,500,000
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
□
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.8%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
CO
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1
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NAMES OF REPORTING PERSONS
Fortress Investment Group LLC
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) □
(b) □
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS
AF
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5
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
□
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
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7
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SOLE VOTING POWER
0
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8
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SHARED VOTING POWER
6,500,000
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9
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SOLE DISPOSITIVE POWER
0
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10
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SHARED DISPOSITIVE POWER
6,500,000
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,500,000
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12
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
□
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.8%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
OO
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Item 1. Security and Issuer.
This Amendment No. 1 (this “Amendment”) amends and supplements the Statement on Schedule 13D (the “Original Schedule 13D”) filed by Fortress Investment Group
LLC, a Delaware limited liability company (“Fortress”), and the other reporting persons named therein on December 17, 2021 relating to ordinary shares, no nominal value per share (“Ordinary Shares”), of Celyad Oncology S.A., a limited
liability company incorporated and existing in the form of a naamloze vennootschap / société anonyme under Belgian law (the “Issuer”). Except as specifically provided herein, this Amendment does not
modify any of the information previously reported on the Original Schedule 13D. Capitalized terms not otherwise defined in this Amendment shall have the same meanings ascribed thereto in the Original Schedule 13D. The principal executive offices of
the Issuer are located at Rue Edouard Belin 2, 1435 Mont-Saint-Guibert, Belgium.
Item 2. Identity and Background.
Annex A attached to this Amendment amends and restates Annex A attached to the Original Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration.
This Amendment supplements the disclosure in Item 3 of the Original Schedule 13D by adding the following:
On August 21, 2023, the Reporting Persons submitted an offer to the Issuer to acquire up to €8,506,500 in Ordinary Shares. On August 24,
2023, CFIP CLYD (UK) Limited (“CFIP UK”), a United Kingdom limited liability company and a wholly-owned subsidiary of CFIP, entered into a Subscription Agreement (the “CFIP UK Subscription Agreement”) with the Issuer, pursuant to
which the Issuer agreed to sell to CFIP UK, in an unregistered offering, an aggregate of 1,454,808 Ordinary Shares at a purchase price of €0.52 per share, for total gross proceeds of €756,500 (the “First Private Placement”), and an
additional 14,903,846 Ordinary Shares, at the same price per share, for total gross proceeds of €7,750,000 (the “Second Private Placement”). The First Private Placement is expected to close on or about September 4, 2023 (the “First
Closing Date”) subject to the satisfaction of customary closing conditions, and the Second Private Placement is expected to close before year end subject to the satisfaction of additional closing conditions including the approval by an
extraordinary shareholders meeting of the Issuer, as described below. The funds to be used by CFIP UK to purchase the Ordinary Shares are expected to be funded from capital contributions from investment funds and managed accounts which are
controlled affiliates of Fortress.
In accordance with the terms of the CFIP UK Subscription Agreement, the Issuer will convene an extraordinary general meeting of the shareholders of the Issuer, to
be held as soon as possible, at which the shareholders of the Issuer will be asked to approve, among other things, (i) all items necessary to consummate the Second Private Placement, (ii) the definitive appointment to the Board of certain designees
of CFIP UK, each for an initial mandate of four (4) years, and (iii) an amendment to the Issuer’s articles of association to memorialize in the Issuer’s articles of association the matters described in the first two paragraphs under “Amended and
Restated Shareholders’ Rights Agreement” in Item 6 below.
Item 4. Purpose of Transaction.
This Amendment supplements the disclosure in Item 4 of the Original Schedule 13D by adding the following:
The information set forth in Items 3 and 6 of this Amendment is incorporated by reference in its entirety into this Item 4.
The Reporting Persons may communicate with the board of directors of the Issuer (the “Board”), members of management or other shareholders of the Issuer, or other
third parties from time to time, with respect to, among other things, potential changes in the Issuer's operations, management, organizational documents, Board composition, ownership, capital or corporate structure, strategy and plans, strategic
alternatives, financing sources, additional capital investments by the Reporting Persons and/or effecting one or more of CFIP’s or CFIP UK’s rights pursuant to the Amended Shareholders’ Rights Agreement. Such
discussions and actions may be preliminary and exploratory in nature, and not rise to the level of a plan or proposal.
Additionally, depending upon market conditions and other factors that they may deem material and subject to the terms of the Amended Shareholders’
Rights Agreement described in Item 6 below, the Reporting Persons or their affiliates may seek to acquire securities of the Issuer or other financial instruments related to the Issuer or its securities (which may include rights or securities
exercisable or convertible into securities of the Issuer) and/or sell or otherwise dispose of some or all of such Issuer securities or financial instruments from time to time, in each case, in open market or private transactions, block sales or
otherwise.
Other than as described in Items 3, 4 and 6, none of the Reporting Persons nor, to the best of their knowledge, any of the Covered Persons listed in Annex A currently has any plans or proposals that relate to, or would result in, any of the matters listed in Item 4 of Schedule 13D, although the
Reporting Persons may, at any time and from time to time, review or reconsider their position and/or change their purpose and/or formulate plans or proposals with respect thereto.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
This Amendment supplements the disclosure in Item 6 of the Original Schedule 13D by adding the following:
The information set forth in Item 3 of this Amendment is incorporated by reference in its entirety into this Item 6.
Amended and Restated Shareholders’ Rights Agreement
In connection with the CFIP UK Subscription Agreement, the Issuer will enter into an Amended and Restated Shareholders’ Rights Agreement (the “Amended
Shareholders’ Rights Agreement”) with CFIP and CFIP UK. Pursuant to the Amended Shareholders’ Rights Agreement, Fortress Credit Advisors LLC or its designee shall have the right to select a number of members of the Issuer’s Board of Directors
(the “Board”) depending on the percentage of the Issuer’s outstanding Ordinary Shares held by CFIP, CFIP UK and their permitted transferees (“Fortress Entities”), as follows: (i) a majority of the Board, as long as the Fortress
Entities hold a majority of the Issuer’s outstanding Ordinary Shares; (ii) the greater of (a) four directors and (b) a percentage of the total number of Board members equal to the Fortress Entities’ ownership percentage rounded up to the nearest
whole number (but not a majority), as long as the Fortress Entities hold at least 30% of the Issuer’s outstanding Ordinary Shares; and (iii) three directors, as long as the Fortress Entities hold at least 10% of the Issuer’s outstanding Ordinary
Shares. In addition, Fortress Credit Advisors LLC or its designee shall have the further right to select one individual to be a non-voting observer of the Board. On the First Closing Date, the Board will co-opt CFIP UK (represented by Michel
Lussier) to replace Mel Management (represented by Michel Lussier) as a member of the Board.
Pursuant to the Amended Shareholders’ Rights Agreement, as long as the Fortress Entities hold at least 10% of the Issuer’s outstanding Ordinary Shares, certain intellectual
property transactions and certain amendments to the Issuer’s articles of association or other transactions affecting the rights of CFIP and CFIP UK will be subject to its approval.
Additionally, pursuant to the Amended Shareholders’ Rights Agreement, CFIP will benefit from a right of first offer on any new indebtedness to be
incurred by the Issuer and, as long as the Fortress Entities hold at least 10% of the Issuer's outstanding Ordinary Shares, each of CFIP and CFIP UK will have a right to purchase its pro rata portion of any new equity securities to be issued by the
Issuer, as well as customary registration rights that they may exercise any time after the expiration of the Lockup Period (as defined below).
Pursuant to the Amended Shareholders’ Rights Agreement, CFIP and CFIP UK have agreed to a lock-up on sales of Ordinary Shares, which shall expire upon
the 45th day following the First Closing Date (the “Lockup Period”).
The foregoing summary does not purport to be complete and is qualified in its entirety by reference to the CFIP UK Subscription Agreement and the Form of
Amended Shareholders’ Rights Agreement, included as Exhibit 4 and Exhibit 5, respectively, to this Amendment.
Other than as described herein or in Item 6 of the Original Schedule 13D, none of the Reporting Persons is a party to any contracts, arrangements or
understandings or has any relationships with respect to any securities of the Issuer.
Item 7. Material to be filed as Exhibits.
| 4 |
Subscription Agreement dated August 24, 2023, by and among CFIP CLYD (UK) Limited and Celyad Oncology SA.
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| 5 |
Form of Amended and Restated Shareholders’ Rights Agreement by and among CFIP CLYD LLC, CFIP CLYD (UK) Limited and Celyad Oncology SA.
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SIGNATURES
After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, each of the undersigned, severally and not jointly, certifies that the
information set forth in this statement is true, complete and correct.
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Dated: August 24, 2023
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CFIP CLYD LLC
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By:
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/s/ David N. Brooks
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Name:
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David N. Brooks
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Title:
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Secretary
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Dated: August 24, 2023
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FIP II UB INVESTMENTS LP
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By: FIP Fund II GP LLC, its general partner
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By:
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/s/ David N. Brooks
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Name:
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David N. Brooks
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Title:
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Secretary
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Dated: August 24, 2023
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FIP FUND II GP LLC
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By:
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/s/ David N. Brooks
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Name:
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David N. Brooks
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Title:
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Secretary
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Dated: August 24, 2023
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HYBRID GP HOLDINGS LLC
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By:
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/s/ David N. Brooks
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Name:
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David N. Brooks
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Title:
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Secretary
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Dated: August 24, 2023
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FIG LLC
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By:
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/s/ David N. Brooks
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Name:
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David N. Brooks
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Title:
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Secretary
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Dated: August 24, 2023
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FORTRESS OPERATING ENTITY I LP
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By: FIG Corp. its General Partner
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By:
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/s/ David N. Brooks
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Name:
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David N. Brooks
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Title:
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Secretary
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Dated: August 24, 2023
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FIG CORP.
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By:
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/s/ David N. Brooks
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Name:
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David N. Brooks
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Title:
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Secretary
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Dated: August 24, 2023
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FORTRESS INVESTMENT GROUP LLC
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By:
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/s/ David N. Brooks
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Name:
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David N. Brooks
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Title:
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Secretary
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Annex A
Directors and Officers of CFIP CLYD LLC:
Business Address: c/o Fortress Investment Group LLC, 1345 Avenue of the Americas, New York, NY 10105.
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Name:
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Position/Title:
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Constantine M. Dakolias
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Managing Partner
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Joshua Pack
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Managing Partner
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Andrew McKnight
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Managing Partner
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Marc K. Furstein
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President
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Jason Meyer
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Chief Operating Officer
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Paul Lyons
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Chief Financial Officer
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Timothy Bailey
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Treasurer
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David N. Brooks
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Secretary
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Alexander Gillette
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Assistant Secretary
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Directors and Officers of FIP II UB Investments LP:
Business Address: c/o Fortress Investment Group LLC, 1345 Avenue of the Americas, New York, NY 10105.
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Name:
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FIP Fund II GP LLC
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General Partner of FIP II UB Investments LP
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Directors and Officers of FIP Fund II GP LLC:
Business Address: c/o Fortress Investment Group LLC, 1345 Avenue of the Americas, New York, NY 10105.
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Name:
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Position/Title:
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Constantine M. Dakolias
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Managing Partner
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|
Joshua Pack
|
|
Managing Partner
|
|
Andrew McKnight
|
|
Managing Partner
|
|
Marc K. Furstein
|
|
President
|
|
Jason Meyer
|
|
Chief Operating Officer
|
|
Paul Lyons
|
|
Chief Financial Officer
|
|
Timothy Bailey
|
|
Treasurer
|
|
David N. Brooks
|
|
Secretary
|
|
Alexander Gillette
|
|
Assistant Secretary
|
Directors and Officers of Hybrid GP Holdings LLC:
Business Address: c/o Fortress Investment Group LLC, 1345 Avenue of the Americas, New York, NY 10105.
|
Name:
|
|
Position/Title:
|
|
Peter L. Briger Jr.
|
|
Director and Chairman
|
|
Constantine M. Dakolias
|
|
Director and President
|
|
Marc K. Furstein
|
|
Director and Chief Operating Officer
|
|
Daniel N. Bass
|
|
Director and Treasurer
|
|
David N. Brooks
|
|
Director and Secretary
|
Directors and Officers of FIG LLC:
Business Address: c/o Fortress Investment Group LLC, 1345 Avenue of the Americas, New York, NY 10105.
|
Name:
|
|
Position/Title:
|
|
Joshua Pack
|
|
Co-Chief Executive Officer
|
|
Andrew McKnight
|
|
Co-Chief Executive Officer
|
|
Wesley R. Edens
|
|
Principal, Co-Founder and Director
|
|
Peter L. Briger Jr.
|
|
Chairman and Principal
|
|
Randal A. Nardone
|
|
Principal, Co-Founder and Director
|
|
David N. Brooks
|
|
Secretary, Vice President and General Counsel
|
|
Daniel N. Bass
|
|
Chief Financial Officer and Treasurer
|
Directors and Officers of Fortress Operating Entity I LP:
Business Address: c/o Fortress Investment Group LLC, 1345 Avenue of the Americas, New York, NY 10105.
|
Name:
|
|
|
|
FIG Corp.
|
|
General Partner of Fortress Operating Entity I LP
|
Directors and Officers of FIG Corp.:
Business Address: c/o Fortress Investment Group LLC, 1345 Avenue of the Americas, New York, NY 10105.
|
Name:
|
|
Position/Title:
|
|
Joshua Pack
|
|
Co-Chief Executive Officer
|
|
Andrew McKnight
|
|
Co-Chief Executive Officer
|
|
Wesley R. Edens
|
|
Principal, Co-Founder and Director
|
|
Peter L. Briger Jr.
|
|
Chairman and Principal
|
|
Randal A. Nardone
|
|
Principal, Co-Founder and Director
|
|
David N. Brooks
|
|
Secretary, Vice President and General Counsel
|
|
Daniel N. Bass
|
|
Chief Financial Officer and Treasurer
|
Directors and Officers of Fortress Investment Group LLC:
Business Address: c/o Fortress Investment Group LLC, 1345 Avenue of the Americas, New York, NY 10105.
|
Name:
|
|
Position/Title:
|
|
Joshua Pack
|
|
Co-Chief Executive Officer
|
|
Andrew McKnight
|
|
Co-Chief Executive Officer
|
|
Wesley R. Edens
|
|
Director, Co-Founder and Principal
|
|
Peter L. Briger Jr.
|
|
Director, Chairman and Principal
|
|
Randal A. Nardone
|
|
Director, Co-Founder and Principal
|
|
David N. Brooks
|
|
Secretary, Vice President and General Counsel
|
|
Daniel N. Bass
|
|
Chief Financial Officer and Treasurer
|
|
George Wellde
|
|
Director
|
|
Michael Rantz
|
|
Director
|
|
Yoshimitsu Goto (citizen of Japan)
|
|
Director
|
|
Rajeev Misra (citizen of the United Kingdom)
|
|
Director
|
|
Jane Dietze
|
|
Director
|
|
Hani Barhoush
|
|
Director
|
|
Michael Morell
|
|
Director and Security Director
|
|
Alex Clavel
|
|
Director
|
2
Exhibit 4
SPECIFIC TERMS IN THIS EXHIBIT HAVE BEEN REDACTED. THESE REDACTED TERMS HAVE BEEN MARKED IN THIS EXHIBIT WITH THREE ASTERISKS [***]
SUBSCRIPTION AGREEMENT
Between
CFIP CLYD (UK) LIMITED
AND
CELYAD ONCOLOGY SA
Dated as of August 24, 2023
TABLE OF CONTENTS
Page
|
1.
|
Definitions
|
1
|
| |
1.1
|
Defined Terms
|
1
|
| |
1.2
|
Additional Defined Terms
|
3
|
|
2.
|
Subscription and Issuance of Ordinary Shares
|
5
|
|
3.
|
Closing Date; Deliveries and Closing Conditions
|
6
|
| |
3.1
|
Closing Date
|
6
|
| |
3.2
|
Payment
|
6
|
| |
3.3
|
Deliveries and Closing Conditions
|
7
|
|
4.
|
Representations and Warranties of the Company
|
8
|
| |
4.1
|
Organization and Qualification
|
8
|
| |
4.2
|
Capitalization
|
9
|
| |
4.3
|
Subsidiaries
|
9
|
| |
4.4
|
Authorization
|
10
|
| |
4.5
|
No Defaults
|
10
|
| |
4.6
|
No Conflicts
|
11
|
| |
4.7
|
No Governmental Authority or Third Party Consents
|
11
|
| |
4.8
|
Validity of the Securities and Absence of Breach
|
11
|
| |
4.9
|
Registration and Voting Rights
|
11
|
| |
4.10
|
Litigation
|
12
|
| |
4.11
|
Licenses and Other Rights; Compliance with Laws
|
12
|
| |
4.12
|
Compliance with Healthcare Laws and Regulations
|
12
|
| |
4.13
|
Company SEC Documents; Financial Statements
|
13
|
| |
4.14
|
Absence of Certain Changes
|
14
|
| |
4.15
|
No Inside Information; Absence of Market Abuse
|
14
|
| |
4.16
|
Offering
|
15
|
| |
4.17
|
Brokers’ or Finders’ Fees
|
15
|
| |
4.18
|
No Integration
|
15
|
| |
4.19
|
Internal Controls; Disclosure Controls and Procedures
|
15
|
| |
4.20
|
Compliance with the Sarbanes-Oxley Act
|
15
|
| |
4.21
|
Investment Company
|
15
|
| |
4.22
|
Foreign Corrupt Practices Act
|
16
|
| |
4.23
|
Economic Sanctions
|
16
|
| |
4.24
|
Money Laundering
|
17
|
| |
4.25
|
Critical Technologies
|
17
|
| |
4.26
|
Title
|
17
|
| |
4.27
|
Intellectual Property Rights
|
17
|
| |
4.28
|
Cybersecurity
|
19
|
| |
4.29
|
Compliance with Data Privacy Laws
|
19
|
| |
4.30
|
Employee Agreements
|
20
|
| |
4.31
|
Environmental Laws
|
20
|
| |
4.32
|
Insurance
|
20
|
| |
4.33
|
Tax Status
|
20
|
| |
4.34
|
Absence of Labor Disputes
|
21
|
| |
4.35
|
Choice of Law
|
21
|
| |
4.36
|
Personal Jurisdiction
|
21
|
| |
4.37
|
Judgment and Enforceability
|
21
|
| |
4.38
|
No Immunity
|
22
|
|
5.
|
Representations and Warranties of the Investor
|
22
|
| |
5.1
|
Organization; Good Standing
|
22
|
| |
5.2
|
Authorization
|
22
|
| |
5.3
|
No Conflicts
|
22
|
| |
5.4
|
No Governmental Authority Consents
|
22
|
| |
5.5
|
Purchase Entirely for Own Account
|
23
|
| |
5.6
|
Disclosure of Information
|
23
|
| |
5.7
|
Investment Experience and Accredited Investor Status
|
23
|
| |
5.8
|
Restricted Securities
|
23
|
| |
5.9
|
Financial Assurances
|
23
|
| |
6.
|
Additional Covenants and Agreements
|
23
|
| |
6.1
|
Market Listing
|
23
|
| |
6.2
|
Interim Operations
|
24
|
| |
6.3
|
Assistance and Cooperation Generally
|
24
|
| |
6.4
|
Investor Co-optation
|
24
|
| |
6.5
|
EGM Convocation; Agenda Items
|
24
|
| |
6.6
|
Certificate
|
26
|
|
7.
|
Miscellaneous
|
26
|
| |
7.1
|
Governing Law
|
26
|
| |
7.2
|
Submission to Jurisdiction
|
26
|
| |
7.3
|
Waiver
|
26
|
| |
7.4
|
Notices
|
26
|
| |
7.5
|
Entire Agreement
|
27
|
| |
7.6
|
Amendments; Termination
|
27
|
| |
7.7
|
Headings
|
27
|
| |
7.8
|
Construction
|
27
|
| |
7.9
|
Translation
|
28
|
| |
7.10
|
Severability
|
28
|
| |
7.11
|
Assignment
|
28
|
| |
7.12
|
Successors and Assigns
|
28
|
| |
7.13
|
Counterparts
|
28
|
| |
7.14
|
Third Party Beneficiaries
|
28
|
| |
7.15
|
No Strict Construction
|
28
|
| |
7.16
|
Survival of Warranties
|
28
|
| |
7.17
|
Injunctive Relief
|
29
|
| |
7.18
|
Remedies
|
29
|
| |
7.19
|
Expenses
|
29
|
Exhibit A – Form of Cross Receipt
Exhibit B – Notices
Annex I – Form of Amended Articles of Association
Annex II – Form of Corporate Governance Charter
Annex III –Form of Amended and Restated Shareholders’ Rights Agreement
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of August 24, 2023 (the “Effective Date”), is entered into between CFIP CLYD (UK) Limited (“UKF”), a U.K. private limited company (the “Investor”), and Celyad Oncology SA, a limited liability company incorporated and existing in the form of a naamloze vennootschap / société anonyme under Belgian law, having its registered office at Rue Edouard Belin 2, 1435 Mont-Saint-Guibert (Belgium) and registered with the Crossroads Bank for Enterprises under number 0891.118.115 (RLE Brabant Wallon) (the “Company”).
WHEREAS, pursuant to the terms and subject to the conditions set forth in this Agreement, the Company desires to issue and
sell to the Investor, and the Investor desires to subscribe for and purchase from the Company, certain ordinary shares of the Company without nominal value (the “Ordinary
Shares”).
NOW, THEREFORE, in consideration of the following mutual promises and obligations, and for good and valuable consideration,
the adequacy and sufficiency of which are hereby acknowledged, the Investor and the Company agree as follows:
1. Definitions.
1.1 Defined Terms. When used in this Agreement, the following terms shall have the respective meanings specified therefor below:
“Affiliate” shall have the meaning set forth in the Shareholders’ Rights Agreement.
“Agreement” shall have the meaning set forth in the Preamble, including all Exhibits
and Annexes attached hereto.
“Amended Articles” shall mean the Amended Articles of Association of the Company in
the form attached hereto as Annex I.
“American Depositary Shares” shall mean American Depositary Shares of the Company,
each representing one Ordinary Share.
“Belgian Code on Companies and Associations” shall mean the Belgian Code on
Companies and Associations of 23 March 2019, as amended from time to time, and the rules and regulations promulgated thereunder.
“Belgian Takeover Decree” shall mean the Belgian Royal Decree of 27 April 2007 on
takeover bids.
“Board of Directors” shall have the meaning set forth in the Shareholders’ Rights
Agreement.
“Business Day” shall have the meaning set forth in the Shareholders’ Rights
Agreement.
“Company Licensed Patents” means all Patents owned by other Persons and licensed to
or otherwise used by the Company or its Subsidiaries. The Company License Patents include all Patents licensed to the Company and/or its Subsidiaries from the Trustees of Dartmouth College.
“Company Owned Patents” means all Patents owned, or purported to be owned, by the
Company or its Subsidiaries.
“Company Patents” means all Company Owned Patents and Company Licensed Patents.
“Corporate Governance Charter” shall mean the Corporate Governance Charter in the
form attached hereto as Annex II.
“Cross Receipt” shall mean an executed document signed by each of the Company and
the Investor, in substantially the form of Exhibit A attached hereto.
“Encumbrance” means any charge, claim, limitation, condition, covenant, license,
estoppel event, equitable interest, mortgage, lien, option, pledge, security interest, easement, encroachment, right of first refusal, confirmatory license, adverse claim or restriction of any kind, including any restriction on or transfer or other
assignment, as security or otherwise, of or relating to use, quiet enjoyment, voting, transfer, receipt of income or exercise of any other attribute of ownership.
“Environmental Law” means any U.S. or Belgian federal, state, local or foreign law,
statute, ordinance, rule, regulation, order, decree, judgment, injunction, permit, license, authorization or other binding requirement, or common law, relating to health, safety or the protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution, processing, generation, treatment, storage, disposal, transportation, other handling or release or threatened release of Hazardous Materials.
“Filings” shall mean any documents filed or furnished by the Company or any
Subsidiary of the Company with the Securities and Exchange Commission under the Securities and Exchange Act of 1934, as amended; annual reports to shareholders, annual and quarterly statutory statements of the Company or any Subsidiary of the Company;
and any registration statements, prospectuses documents filed or furnished by the Company or any of its Subsidiaries with the Commission under the Securities Act.
“Governmental Authority” shall mean any court, agency, authority, department or
other instrumentality of any government or country or of any national, federal, state, provincial, regional, county, city or other political subdivision of any such government or country or any supranational organization of which any such country is a
member.
“Hazardous Materials” means any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that is regulated by or may give rise to liability under any Environmental Law.
“Law” or “Laws” shall mean all laws,
statutes, rules, regulations, orders, judgments, injunctions and/or ordinances of any Governmental Authority.
“Market Abuse Regulation” shall mean Regulation (EU) No 596/2014 of the European
Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, as amended from
time to time, and the rules and regulations promulgated thereunder.
“Patents” means any and all patents, patent applications (including both provisional
and non-provisional), industrial designs (including utility model rights, design rights and industrial property rights), industrial design applications and statutory invention registrations, together with all reissues, continuations,
continuations-in-part, revisions, divisionals, extensions, and reexaminations in connection therewith in any jurisdiction throughout the world.
“Patent Agreements” means all agreements to which the Company or any of its
Subsidiaries is a party and that relate to Company Patents, including, but not limited to, license agreements, releases of claims or damages, settlement agreements, judgments, covenants not to sue or assert, pledges, development agreements, as well as
all licenses, authorizations, non-governmental licenses, agreements and other intellectual property rights of the Company and its Subsidiaries (other than those primarily related to software) and all agreements of the Company and its Subsidiaries that
contain any earn-out or similar obligation to provide a third party with payments on the basis of licensing or sub-licensing income or other intellectual property monetization activities.
“Person” shall have the meaning set forth in the Shareholders’ Rights Agreement.
“Shareholders’ Rights Agreement” shall mean the Amended and Restated Shareholders’
Rights Agreement in the form attached hereto as Annex III.
“Subsidiary” shall have the meaning set forth in the Shareholders’ Rights Agreement.
“Third Party” shall mean any Person (other than a Governmental Authority) other than
the Investor, the Company or any Affiliate of the Investor or the Company.
“Transaction” means the issuance of the Securities by the Company, and the
subscription for the Securities by the Investor, in accordance with the terms hereof.
“Transaction Documents” means this Agreement and the Shareholders’ Rights Agreement.
1.2 Additional Defined Terms. In addition to the terms defined in Section 1.1, the following terms shall have the respective meanings assigned thereto in the sections indicated below:
|
Defined Term
|
Section
|
|
Aggregate Subscription Price
|
Section 2
|
|
Anti-Corruption Laws
|
Section 4.22
|
|
Defined Term
|
Section
|
|
Closing
|
Section 3.1
|
|
Closing Date
|
Section 3.1
|
|
Company
|
Preamble
|
|
Company EGM
|
Section 6.5
|
|
Company EGM Proposals
|
Section 6.5
|
|
Company SEC Documents
|
Section 4.13(a)
|
|
Company Subsidiaries
|
Section 4.3
|
|
Convening Notice
|
Section 3.3(b)
|
|
Convening Notice Publication
|
Section 6.5
|
|
Effective Date
|
Preamble
|
|
English Bribery Laws
|
Section 4.22
|
|
Exchange Act
|
Section 4.13(a)
|
|
FCPA
|
Section 4.22
|
|
First Aggregate Subscription Price
|
Section 2
|
|
First Closing
|
Section 3.1
|
|
First Closing Date
|
Section 3.1
|
|
First Securities
|
Section 2
|
|
Governmental Entity
|
Section 4.5
|
|
Governmental Licenses
|
Section 4.11
|
|
Healthcare Authorities
|
Section 4.12
|
|
IFRS
|
Section 4.13(b)
|
|
Investor
|
Preamble
|
|
Investor Designee Proposal
|
Section 6.5
|
|
Investor Designee Proposal Designees
|
Section 6.5
|
|
Defined Term
|
Section
|
|
Investor Designee Proposal Notice
|
Section 6.5
|
|
IT Systems and Data
|
Section 4.28
|
|
Material Adverse Effect
|
Section 4.1(b)
|
|
Money Laundering Laws
|
Section 4.24
|
|
OECD Convention
|
Section 4.22
|
|
Ordinary Shares
Other IP Agreements
|
Recitals
Section 4.27(c)
|
|
Other Licenses
|
Section 4.11
|
|
Permitted Encumbrances
|
Section 4.27(d)
|
|
Policies
|
Section 4.29
|
|
Price Per Share
|
Section 2
|
|
Privacy Laws
|
Section 4.29
|
|
Rule 144
|
Section 5.8
|
|
Sanctions
|
Section 4.23
|
|
SEC
|
Section 4.7
|
|
Second Aggregate Subscription Price
|
Section 2
|
|
Second Closing
|
Section 3.1
|
|
Second Closing Date
|
Section 3.1
|
|
Second Closing Proposal
|
Section 6.5
|
|
Second Securities
|
Section 2
|
|
Securities
|
Section 2
|
|
Securities Act
|
Section 4.13(a)
|
2. Subscription and Issuance of Ordinary Shares. Subject to the terms and conditions of this Agreement, at the First Closing, the Company shall issue and sell to the Investor, free and clear of all liens, other than any
liens arising as a result of any action by the Investor, and the
Investor shall subscribe for and purchase from the Company, 1,454,808 Ordinary Shares (the “First Securities”)
for €0.52 per share (the “Price Per Share”), or €756,500.16 in the aggregate (the “First Aggregate Subscription Price”). Subject to
the terms and conditions of this Agreement, at the Second Closing, the Company shall issue and sell to the Investor, free and clear of all liens, other than any liens arising as a result of any action by the Investor, and the Investor shall subscribe
for and purchase from the Company, 14,903,846 Ordinary Shares (the “Second Securities” and, together with the First Securities, the “Securities”) for the Price per Share,
or €7,749,999.92 in the aggregate (the “Second Aggregate Subscription Price” and, together with the First Aggregate Subscription Price, the “Aggregate Subscription Price”).
The Company shall, on the First Closing Date, increase its share capital and non-distributable issue premium with an amount equal to the First Aggregate Subscription Price by means of a capital increase duly approved by the Board of Directors (in
accordance with among others the rules set out in article 7:97 of the Belgian Code on Companies and Associations) within the framework of the authorized capital, with cancellation of the preferential subscription rights of the shareholders to the
benefit of the Investor. The Company shall, on the Second Closing Date, increase its share capital and non-distributable issue premium with an amount equal to the Second Aggregate Subscription Price by means of a capital increase approved by the
Company’s extraordinary general meeting of shareholders, with cancellation of the preferential subscription rights of the shareholders to the benefit of the Investor in accordance with article 7:191 of the Belgian Code on Companies and Associations.
The Securities shall be issued in registered form (subject to Section 6.1) and shall be identical in all respects (including the right to share in the dividends and any profits (including profits carried forward and reserves) to the Ordinary
Shares.
3. Closing Date; Deliveries and Closing Conditions.
3.1 Closing Date. The parties hereto intend that (a) the subscription and issuance and purchase and sale of the First Securities hereunder (the “First Closing”) shall close remotely via the exchange of documents and the subscription and issuance of the First Securities before a
Belgian notary on [***], or at such other time and location as the parties hereto may agree, and (b) the subscription and issuance and purchase and sale of the Second Securities hereunder (the “Second Closing”) shall close remotely via the exchange of documents and the subscription and issuance of the
Second Securities before a Belgian notary during the extraordinary general meeting of shareholders approving the increase of the capital of the Company, or at such time and location as the parties hereto may agree. The date the First Closing
occurs is hereinafter referred to as the “First Closing Date” and the date the Second Closing occurs is hereinafter referred to as the “Second Closing Date” (each, a “Closing Date”).
3.2 Payment. Payment of the First Aggregate Subscription Price and the Second Aggregate Subscription Price, as applicable, shall be made to the Company via wire transfer of immediately available funds in euro and
received on or prior to 5:00 p.m., Central European Time, on the Business Day before the applicable Closing Date to the blocked bank account [***] in respect of the First Securities and [***] in respect of the Second Securities, both opened in the
Company’s name with ING Belgium SA/NV established in accordance with article 7:195 of the Belgian Code on Companies and Associations. The funds deposited in that blocked bank account shall remain so deposited until the issuance and delivery of the
First Securities or the Second Securities to the Investor on the First Closing Date or Second Closing Date, respectively.
The Company shall notify the Investor in writing of the wiring instructions for such account not less than [***] Business Days before the
applicable Closing Date.
3.3 Deliveries and Closing Conditions.
(a) Deliveries by the Company. At the First Closing, the Company shall record the First Securities in its shareholders’ register in the name of the Investor and deliver (i) the items set forth in Section 3.3(b)(iii),
(ii) a counterpart signature page to the Shareholders’ Rights Agreement, (iii) duly executed subscription agreements between the Company and concerned shareholders of the Company for a total of 2,475,962 Ordinary Shares at a price per share not
less than the Price Per Share (the “Concurrent Subscriptions”) and (iv) a duly executed Cross Receipt. At the Second Closing, the Company shall record the
Second Securities in its shareholders’ register in the name of the Investor and deliver (x) the items set forth in Section 3.3(b)(iii) and (y) a duly executed Cross Receipt.
(b) Conditions to the Investor’s Obligations. The obligation of the Investor to purchase the First Securities at the First Closing and the Second Securities at the Second Closing are subject to the fulfillment, on or
before such Closing, of each of the following conditions, unless otherwise waived by the Investor: (i) the representations and warranties of the Company contained in Section 4 shall be true and correct in all respects as of the applicable
Closing, (ii) the Company shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before the applicable
Closing, (iii) the Investor shall have received (w) a legal opinion of the Company Belgian counsel in form and substance reasonably satisfactory to the Investor, (x) a legal opinion of the Company U.S. counsel in form and substance reasonably
satisfactory to the Investor, (y) a certificate of a duly authorized director of the Company dated as of the applicable Closing Date certifying (A) that attached thereto are true and complete copies of the Articles of Association of the Company in
effect on the applicable Closing Date, (B) that attached thereto is a true and complete copy of all resolutions adopted by the Board of Directors of the Company authorizing the execution and delivery of this Agreement and the Shareholders’ Rights
Agreement and the consummation of the transactions contemplated hereby and thereby and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby as
of the applicable Closing Date and (C) that attached thereto are all documents prepared for the Board of Directors of the Company (including, but not limited to, any special reports, such as board reports and auditor reports) in connection with the
Transaction and the Concurrent Subscriptions, each pursuant to articles 7:198, 7:191 and 7:193 of the Belgian Code on Companies and Associations, and (z) a certificate of the Chief Executive Officer of the Company, dated as of the applicable
Closing Date, to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the applicable Closing Date and that the Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on or before the applicable Closing Date, (iv) in the case of the First Closing, the Company and the Investor shall have finalized (in a form that is satisfactory to Investor in its
sole discretion) a form of notice to the Company’s shareholders to convene an extraordinary general meeting of shareholders containing all items to be proposed for approval by the extraordinary general meeting of shareholders, including the Company
EGM Proposals (the “Convening Notice”), (v) the Corporate
Governance Charter shall have been approved by the Board of Directors and shall be in full force and effect, (vi) the Shareholders’ Rights
Agreement shall be in full force and effect, (vii) the Concurrent Subscriptions shall have been consummated concurrently with the First Closing, (viii) the acquisition by Investor of the Securities to be acquired at such Closing shall not result in any
obligation by the Investor or any of its affiliates within the meaning of the Belgian Takeover Decree to launch a public takeover bid on securities of the Company, (ix) the acquisition by Investor of the Securities to be acquired at such Closing shall
fall outside the scope of the Regulation 2019/452 of the European Parliament and of the Council of 19 March 2019 (the EU FDI Regulation), (x) in the case of the Second Closing, the Second Closing Proposal shall have been approved by the Company’s
shareholders at the extraordinary general meeting of shareholders required to be called by the Company pursuant to Section 6.5 and (xi) in the case of the First Closing, Michel Lussier shall have resigned from the Board effective as of the
First Closing Date.
(c) Deliveries by the Investor. At the First Closing, the Investor shall deliver to the Company (i) a counterpart signature page to the Shareholders’ Rights Agreement, (ii) the First Aggregate Subscription Price in
accordance with Section 3.2 and (iii) a duly executed Cross Receipt. On the Second Closing Date, the Investor shall deliver to the Company (x) the Second Aggregate Subscription Price in accordance with Section 3.2 and (y) a duly
executed Cross Receipt.
(d) Conditions to the Company’s Obligations. The obligation of the Company to sell to the Investor the First Securities at the First Closing and the Second Securities at the Second Closing are subject to the fulfillment,
on or before such Closing, of each of the following conditions, unless otherwise waived by the Company: (i) the representations and warranties of the Investor contained in Section 5 shall be true and correct in all respects as of the
applicable Closing, (ii) the Investor shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by Investor on or before the
applicable Closing and (iii) in the case of the Second Closing, the Second Closing Proposal shall have been approved by the Company’s shareholders at the extraordinary general meeting of shareholders required to be called by the Company pursuant to
Section 6.5.
4. Representations and Warranties of the Company. The Company hereby represents and warrants the following as of the date hereof and as of each Closing Date (except for the representations and warranties that speak as
of a specific date, which shall be made as of such date):
4.1 Organization and Qualification.
(a) The Company has been duly incorporated for an unlimited duration and is validly existing as a limited liability company société anonyme in good standing (or such equivalent concept to the extent it exists) under the laws of Belgium and no steps have been taken or contemplated by the Company or, to the knowledge of the Company, taken or threatened by a third party for its
nullity, bankruptcy, liquidation, receivership or reorganization or any other similar proceeding, nor has any petition been filed or other proceedings commenced for an administration order, nor has any bankruptcy custodian been appointed in any
jurisdiction in
respect of any part of the business or assets of the Company or any of its Subsidiaries. The Company has full corporate power and authority to
own, lease and operate its properties and conduct its business as described in the Filings and to execute and deliver this Agreement and the Shareholders’ Rights Agreement and to perform its obligations hereunder and thereunder, including to issue and
deliver the Securities as contemplated herein.
(b) The Company has been duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, (i) have a material adverse effect on the business, properties, financial conditions, results of operations or prospects of
the Company and its Subsidiaries taken as a whole, (ii) prevent or materially interfere with the consummation of the transactions contemplated hereby or by the Shareholders’ Rights Agreement or (iii) prevent the Securities from being accepted for
listing on or result in the delisting of the Securities from Euronext (the occurrence of any such effect or any such prevention or interference or any such result described in the foregoing clauses (i), (ii) and (iii) being herein referred to as a
“Material Adverse Effect”).
4.2 Capitalization.
(a) As of the day immediately prior to the Effective Date, (i) [***] Ordinary Shares (including Ordinary Shares represented by American Depositary Shares) are issued and outstanding and (ii) securities exercisable for or convertible
into an additional [***] Ordinary Shares are issued and outstanding. All of the issued and outstanding Ordinary Shares have been duly authorized and validly issued and are fully paid, non-assessable and free of preemptive rights.
(b) All of the authorized Ordinary Shares are entitled to one vote per share, except, as of the Effective Date, for [***] shares registered on the Company’s registry which are entitled to two (2) votes per share.
(c) Except as described or referred to in Section 4.2(a) above or the Filings, and except for the Concurrent Subscriptions, as of the Effective Date, there are not: (i) any outstanding equity securities, options,
warrants, debt securities, rights (including conversion or preemptive rights (other than those granted under applicable Laws)) or other agreements pursuant to which the Company is or may become obligated to issue or repurchase any shares of its
share capital or any other securities of the Company or (ii) any restrictions on the transfer of share capital of the Company other than pursuant to applicable Laws.
4.3 Subsidiaries. The Company has no Subsidiaries other than Biological Manufacturing Services SA, Celyad Inc. and CorQuest Medical Inc. (collectively, the “Company
Subsidiaries”) and none of the Company Subsidiaries are a “significant subsidiary” (as defined in Rule 1-02 of Regulation S-X under the Exchange Act); the Company owns all of the issued and outstanding share
capital or capital stock, as applicable, of each of the Company Subsidiaries; other than the share capital or capital stock, as applicable, of the Company Subsidiaries, the Company does not own, directly or indirectly, any shares of stock or any
other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other
entity; each Company Subsidiary has been duly incorporated or formed, as applicable, and is validly existing as a corporation or limited
liability company, as applicable, in good standing (or such equivalent concept to the extent it exists) under the laws of the jurisdiction of its incorporation, with full corporate or organizational power and authority to own, lease and operate its
properties and to conduct its business as described in the Filings, except where the failure to be in good standing would not have a Material Adverse Effect; each Company Subsidiary is duly qualified to do business as a foreign corporation or limited
liability company, as applicable, and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing
would not, individually or in the aggregate, have a Material Adverse Effect; all of the outstanding share capital or shares of capital stock of each of the Company Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable, have been issued in compliance with all applicable securities laws, were not issued in violation of any preemptive right, resale right, right of first refusal or similar right and, except as would not have a Material Adverse Effect, are
owned by the Company subject to no security interest, other encumbrance or adverse claims; and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligation into share capital or
shares of capital stock or ownership interests in the Company Subsidiaries are outstanding.
4.4 Authorization.
(a) All requisite action on the part of the Company, its directors and shareholders required by applicable Law for the authorization, execution and delivery by the Company of this Agreement and the Shareholders’ Rights Agreement and the
performance of all obligations of the Company hereunder and thereunder, including the authorization, issuance and delivery of the Securities, has been taken or will be taken prior to the applicable Closing. No further corporate action, and no
additional approval or ratification of the Board of Directors or general meeting of shareholders (other than (i) the approval by the Board of Directors before the Belgian notary to make use of the authorized capital in respect of the First Closing,
(ii) the approval by the extraordinary general meeting of shareholders before a Belgian notary to increase the capital and cancel the preferential subscription rights in respect of the Second Closing and (iii) the preparation of the relevant special
reports in connection herewith as required by applicable Law) is required by the Company.
(b) This Agreement has been duly executed and delivered by the Company and, upon the due execution and delivery by the Investor, will constitute valid and legally binding obligations of the Company, enforceable against the Company in
accordance with its terms (except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other Laws of general application relating to or affecting enforcement of creditors’ rights and (ii) rules
of Law governing specific performance, injunctive relief or other equitable remedies and limitations of public policy).
4.5 No Defaults. Neither the Company nor any of its Subsidiaries is (A) in violation of its organizational documents, (B) in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which it or any of them may be
bound or to which any of the properties or assets of the Company or any of its Subsidiaries is subject, or (C) in material violation of any
law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or any of its Subsidiaries or
any of their respective properties, assets or operations (each, a “Governmental Entity”).
4.6 No Conflicts. The execution, delivery and performance of this Agreement, and compliance with the provisions hereof by the Company do not and shall not: (a) violate any stock exchange rule or provision of applicable
Law or any ruling, writ, injunction, order, permit, judgment or decree of any Governmental Authority, (b) constitute a breach of, or default under (or an event which, with notice or lapse of time or both, would become a default under) or conflict
with, or give rise to any right of termination, cancellation or acceleration of, any agreement, arrangement or instrument, whether written or oral, by which the Company, any of its Subsidiaries or any assets of the Company or any of its
Subsidiaries are bound (except the accelerated vesting and exercise right as per section 8.8 of the warrant plans of the Company), (c) result in any encumbrance upon any of the Securities, other than restrictions on resale pursuant to applicable
securities Laws or restrictions contained in this Agreement, or (d) violate or conflict with any of the provisions of the organizational documents of the Company or any of its Subsidiaries, except, in the case of subsections (a) and (b), as would
be reasonably likely to have a Material Adverse Effect.
4.7 No Governmental Authority or Third Party Consents. No consent, approval, authorization or other order of, or filing with, or notice to, any Governmental Authority or Third Party is required to be obtained or made by
the Company or any of its Subsidiaries in connection with the authorization, execution and delivery by the Company of this Agreement, or with the authorization and issuance by the Company of the Securities, except such filings as may be required to
be made with the Belgian Financial Services and Markets Authority (the “FSMA”), the United States Securities and Exchange Commission (the “SEC”) and any state blue sky or securities regulatory authority, which filings shall be made in a timely manner in accordance with all applicable Laws.
4.8 Validity of the Securities and Absence of Breach. When issued and paid for at the applicable Closing in accordance with the terms hereof, the Securities shall be validly and duly issued and fully paid Ordinary Shares
of the only class of shares of the Company in accordance with the applicable provisions of the organizational documents of the Company and Belgian law, free and clear of all liens, pledges, encumbrances, mortgages, security interests, or easement
or transfer restrictions of any nature whatsoever, including preemptive rights, rights of first refusal or other similar rights, except restrictions imposed by this Agreement and under applicable securities Laws.
4.9 Registration and Voting Rights. Except as provided in the Shareholders’ Rights Agreement, no person has the right, contractual or otherwise, to cause the Company to register under the Securities Act any American Depositary Shares
or Ordinary Shares or shares of any other capital stock of or other equity interests in the Company. To the Company’s knowledge, no shareholder of the Company has entered into any agreements with respect to the voting of capital shares of the
Company.
4.10 Litigation. Except as set forth in the Filings filed prior to the Effective Date, there is no action, suit, proceeding or investigation pending (of which the Company or any of its Subsidiaries have received notice or
otherwise have knowledge) or, to the Company’s knowledge, threatened, against or affecting the Company or any of its Subsidiaries or which the Company or any of its Subsidiaries intend to initiate which has had or would be reasonably likely to have
a Material Adverse Effect. The aggregate of all pending legal or governmental proceedings to which the Company and its Subsidiaries are a party or of which any of their respective properties or assets is the subject which are not described in the
Filings, including ordinary routine litigation incidental to the business, could not result in a Material Adverse Effect.
4.11 Licenses and Other Rights; Compliance with Laws. The Company and its Subsidiaries possess such permits, certificates, registrations, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities and has obtained all necessary permits, certificates, licenses, authorizations, consents and
approvals from other persons (collectively, “Other Licenses”) necessary to conduct the business now operated by them, except where the failure so to
possess would not, singly or in the aggregate, result in a Material Adverse Effect. The Company and its Subsidiaries are and at all times have been in compliance with the terms and conditions of all Governmental Licenses and Other Licenses, except
where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses and Other Licenses are valid and in full force and effect, except, in the case of Governmental Licenses,
when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its Subsidiaries
has received any notice relating to the suspension, revocation or modification of any Governmental Licenses or Other Licenses, nor, to the knowledge of the Company, has any such suspension, revocation or modification been threatened.
4.12 Compliance with Healthcare Laws and Regulations. Except as described in the Filings, the preclinical and clinical studies conducted by or on behalf of or sponsored by the Company or its Subsidiaries, or in which the
Company or its Subsidiaries have participated, were (and, if still pending, are being) conducted in all material respects in accordance with standard medical and scientific research standards and procedures for products or product candidates
comparable to those being developed by the Company and all applicable statutes and all applicable rules and regulations of the U.S. Food and Drug Administration and comparable regulatory agencies outside of the United States to which they are
subject, including the European Medicines Agency (collectively, the “Healthcare Authorities”) and Good Clinical Practice and Good Laboratory Practice
requirements. The descriptions of the protocols for, and data and other results of, such studies in the Filings or otherwise provided to the Investor are accurate and complete descriptions in all material respects and fairly present the data
derived therefrom. The Company has no knowledge of any studies not described in Filings, the results of which are inconsistent with or call into question the results described or referred to in the Filings. The Company and its Subsidiaries have
operated at all times and are currently in compliance with all statutes, rules and regulations applicable to the ownership, testing, development, marketing, promotion, manufacture, packaging, processing, use, distribution, storage, import, export
or disposal of any product manufactured or distributed by the Company or any of its Subsidiaries (including, without limitation, all statutes, rules and regulations of the Healthcare Authorities) except where such non-compliance would not,
individually or in the aggregate, have a Material Adverse Effect. Neither
the Company nor any of its Subsidiaries have received any written notices, correspondence or other communications from the Healthcare
Authorities or any other governmental agency requiring or threatening the termination, material modification or suspension of any preclinical or clinical studies, tests or trials that are described in the Filings or the results of which are referred to
in the Filings, other than ordinary course communications with respect to modifications in connection with the design and implementation of such studies, and, to the Company’s knowledge, there are no reasonable grounds for the same. The Company has
not failed to file with the Healthcare Authorities any required filing, declaration, listing, registration, report or submission with respect to the Company’s product candidates that are described or referred to in the Filings, except where such
failure would not, individually or in the aggregate, have a Material Adverse Effect; all such filings, declarations, listings, registrations, reports or submissions were in material compliance with applicable laws when filed; and no material
deficiencies regarding compliance with applicable law have been asserted by any Healthcare Authority with respect to any such filings, declarations, listings, registrations, reports or submissions.
4.13 Company SEC Documents; Financial Statements.
(a) Since December 31, 2022, the Company has timely filed all required reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated therein), and any required amendments to
any of the foregoing, with the SEC (the “Company SEC Documents”). As of their respective filing dates, each of the Company SEC Documents complied in all
material respects with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and the rules and regulations of the SEC promulgated thereunder applicable to such Company SEC Documents. No Company SEC
Documents when filed, declared effective or mailed, as applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(b) The financial statements of the Company included in its Form 20-F for the fiscal year ended December 31, 2022 comply as to form in all material respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, have been prepared in conformity with International Financial Reporting Standards (“IFRS”) as issued by the
International Accounting Standards Board applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto) and fairly present in all material respects the financial position of the Company as of the
dates thereof and the results of its operations and cash flows for the periods then ended. Except for liabilities incurred in the ordinary course of business and consistent with past practice, subsequent to the date of the most recent balance
sheet contained in the Company SEC Documents, the Company has no liabilities, whether absolute or accrued, contingent or otherwise, other than those that would not, individually or in the aggregate, have or would be reasonably likely to have a
Material Adverse Effect.
(c) There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed in any Filing and is not so
disclosed.
4.14 Absence of Certain Changes. Except as disclosed in the Filings filed prior to the Effective Date, since December 31, 2022, there has not occurred (i) any change in the assets, liabilities, financial condition or
operating results of the Company, except changes in the ordinary course of business that have not caused and would not reasonably be expected to cause, in the aggregate, a Material Adverse Effect, (ii) any damage, destruction or loss, whether or
not covered by insurance, that would have a Material Adverse Effect, (iii) any waiver or compromise by the Company of a valuable right or of a material obligation owed to it, (iv) any satisfaction or discharge of any lien, claim, or encumbrance or
payment of any obligation by the Company, except in the ordinary course of business and the satisfaction or discharge of which would not have a Material Adverse Effect, (v) any material change to a material contract or agreement by which the
Company or any of its assets is bound or subject, (vi) any material change in any compensation arrangement or agreement with any employee, officer, director or shareholder of the Company or any of its Subsidiaries (except for the compensation
arrangement entered into with Georges Rawadi, who became CEO effective as of April 17, 2023), (vii) any resignation or termination of employment of any officer of the Company, (viii) any mortgage, pledge, transfer of a security interest in, or
lien, created by the Company with respect to any intellectual property of the Company or any of its Subsidiaries or any other material properties or assets of the Company or any of its Subsidiaries, (ix) any loans or guarantees made by the Company
to or for the benefit of its employees, officers or directors, or any members of their immediate families, (x) any declaration, setting aside or payment or other distribution in respect of any of the Company’s capital stock, or any direct or
indirect redemption, purchase, or other acquisition of any of such capital stock by the Company, (xi) any other event or condition of any character, other than events affecting the economy or the Company’s industry generally, that could reasonably
be expected to result in a Material Adverse Effect or (xii) any arrangement or commitment by the Company to do any of the things described in this Section 4.14.
4.15 No Inside Information; Absence of Market Abuse. The Company is not aware of any “inside information” (within the meaning of the Market Abuse Regulation) relating, directly or indirectly, to itself or any of its
financial instruments which has not been made public (regardless of any possibility to postpone the disclosure of such inside information), other than in respect of this Agreement and the Shareholders’ Rights Agreement and the Concurrent
Subscriptions. The Company has not taken, directly or indirectly, in relation to the offering of the Securities or otherwise, any action or engaged in any course of conduct in breach of, and has taken adequate measures and has adequate procedures
in place in order to ensure compliance with, and none of the issue of the Securities, the sale of the Securities and the consummation of the transactions contemplated by this Agreement will constitute a violation by the Company of, any applicable
European Union, Belgian, United States or any other relevant jurisdiction “insider dealing,” “insider trading” or similar legislation and, so far as the Company is aware, no person acting on its behalf has breached or is in breach of any relevant
market abuse or insider trading law or regulation, including any reporting obligations to the SEC, the FSMA or any other authority. The Company has not taken, nor will the Company take, directly or indirectly, any action which is designed, or
would be reasonably expected, to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in a violation of applicable
laws, including Regulation M under the Exchange Act, the Market Abuse Regulation and its implementing rules.
4.16 Offering. Subject to the accuracy of the Investor’s representations set forth in Sections 5.5, 5.6, 5.7 and 5.8, the offer, sale and issuance of the Securities to be issued in conformity with the terms of this
Agreement constitute transactions which are exempt from the registration requirements of the Securities Act. None of the Company, its Subsidiaries or any Person acting on behalf of the Company or its Subsidiaries will take any action that would
cause the loss of such exemption.
4.17 Brokers’ or Finders’ Fees. No broker, finder, investment banker or other Person is entitled to any brokerage, finder’s or other fee or commission from the Company in connection with the transactions contemplated by
this Agreement.
4.18 No Integration. The Company has not, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which is or
will be integrated with the Securities sold pursuant to this Agreement in a manner that would require the registration of the Securities under the Securities Act.
4.19 Internal Controls; Disclosure Controls and Procedures. The Company and each of its Subsidiaries maintain effective internal control over financial reporting (as defined under Rule 13-a15 and 15d-15 under the Exchange
Act) and a system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with IFRS and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Filings, since the end of the Company’s most recent audited fiscal year, there has been
(1) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting. The Company and each of its Subsidiaries maintain an effective system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Exchange
Act) that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the
Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding
disclosure.
4.20 Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with
any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
4.21 Investment Company. The Company is not, and after giving effect to the transactions contemplated by this Agreement and the Shareholders’ Rights Agreement will not be,
an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as
amended.
4.22 Foreign Corrupt Practices Act. None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or
any of its Subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Anti-Corruption Laws (as defined below), including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is defined in the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”)) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company and, to the knowledge of the Company, its affiliates have conducted their businesses in
compliance with the Anti-Corruption Laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. For purposes of this Agreement, “Anti-Corruption Laws” means (i) the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997 (the “OECD Convention”); (ii) the FCPA; (iii) the English common law offence of bribery and the Bribery Act 2010 of the United Kingdom (the “English Bribery Laws”); and (iv) any other applicable law in any applicable jurisdiction (including any (a) statute, ordinance, rule or regulation; (b) order of any court, tribunal or any
other judicial body; and (c) rule, regulation, guideline or order of any public body, or any other administrative requirement) which: (x) prohibits the conferring of any gift, payment or other benefit on any person or any officer, employee, agent
or adviser of such person; and/or (y) is broadly equivalent to the FCPA the English Bribery Laws or was intended to enact the provisions of the OECD Convention or which has as its objective the prevention of corruption.
4.23 Economic Sanctions. None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or representative of the Company or any of its Subsidiaries is a
Person currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security
Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company located,
organized or resident in a country or territory that is the subject of Sanctions. The Company will not directly or indirectly use the proceeds of the issuance of the Securities, or lend, contribute or otherwise make available such proceeds to any
subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a
violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five years, the Company and its Subsidiaries have not knowingly engaged in and are
not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any sanctioned country.
4.24 Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity
involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
4.25 Critical Technologies. The Company does not produce, design, test, manufacture, fabricate, or develop any “critical technology” as defined at 31 C.F.R. Part 800.215.
4.26 Title. The Company and each of its Subsidiaries have good and marketable title to all property (real and personal, excluding for the purposes of this Section 4.26, intellectual property) described in the
Filings as being owned by any of them, free and clear of all liens, claims, security interests or other encumbrances, except for such liens, claims, security interests or other encumbrances as would not have, individually or in the aggregate, a
Material Adverse Effect. All the property described in the Filings as being held under lease by the Company or its Subsidiaries is held thereby under valid, subsisting and enforceable leases, except where such failure to own or hold would not
have, individually or in the aggregate, a Material Adverse Effect and except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws relating
to creditor’s rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
4.27 Intellectual Property Rights.
(a) Schedule 4.27(a) contains a true, correct and complete list of all Company Patents.
(b) The Company or its Subsidiaries solely and exclusively own and possess, free and clear of all liens and any defects in title, all right, title and interest in and to all Company Owned Patents. The Company or its Subsidiaries have
the right to use pursuant to a valid and enforceable written license set forth on Schedule 4.27(b), all Company Licensed Patents.
(c) Schedule 4.27(c) sets forth a true, correct and complete list of all Patent Agreements not otherwise listed on Schedule 4.27(b) or Schedule 4.27(d). Each Patent Agreement is legal, valid, binding and enforceable as to the
Company and its Subsidiaries and, to the knowledge of the Company, the other parties thereto, in accordance with their respective terms. The Company has made available to the Investor a true, correct and complete copy of each Patent Agreement,
together with all exhibits, amendments, waivers or other changes thereto. Each Patent Agreement is currently in full force and effect in the form made available to the Investor. Except as set forth in the Filings, the Company and its
Subsidiaries, and to the knowledge of the Company, each other party to any Patent Agreement, has performed all obligations required to be performed by it and is not in default under or in breach of, or in receipt of any claim of default or breach
under, any Patent Agreement. Except as set forth in the Filings, there has not occurred any event
that, with the lapse of time or the giving of notice or both, would constitute a default or breach under a Patent Agreement by the Company or
its Subsidiaries or, to the knowledge of the Company, any of the other parties to such Patent Agreement. Neither the Company nor any of its Subsidiaries has received notice to the effect that any other party to any Patent Agreement intends to cancel,
terminate, breach, or attempt to alter the terms of any such Patent Agreement or to exercise or not to exercise any option to renew thereunder.
(d) The Company Patents are free and clear of all Encumbrances, except as expressly set forth on Schedule 4.27(d) (the “Permitted Encumbrances”). The Company, its Subsidiaries and the Company Patents are not subject to any license, obligation to license, covenant not to sue, or similar restrictions on enforcement or enjoyment of the Company Patents, except as specifically set
forth in Schedule 4.27(d).
(e) All of the Company Patents are subsisting and in full force and effect, and, to the knowledge of the Company, valid and enforceable. To the knowledge of the Company, there has been no conduct, misrepresentation, or omission, the
result of which could invalidate, render unenforceable, or materially affect the ability to license any of the Company Patents. No loss or expiration of any of the Company Patents is threatened, pending or otherwise reasonably foreseeable, except
for patents expiring at the end of their statutory term (and not as a result of any act or omission by the Company or any of its Subsidiaries, including, without limitation, a failure to pay any required filing, examination, maintenance, renewal or
other fees or a failure to make any filings including any renewals, statements of use, affidavits of continued use or affidavits of incontestability), and the Company and its Subsidiaries have not abandoned, whether expressly or constructively, any
Company Patents (except as a result of intentional, commercially reasonable decisions to abandon applications during examination proceedings before an applicable Governmental Authority). The Company and its Subsidiaries have used commercially
reasonable efforts to maintain, protect and enforce the Company Patents.
(f) There are no claims that were either previously made or are presently pending or, to the knowledge of the Company, threatened, contesting the validity, use, ownership, enforceability, or patentability of any Company Patents,
including any interference, opposition, inter partes review, reissue or reexamination proceeding with respect to any Company Patents, and, to the
knowledge of the Company, there is no reasonable basis for any such claim. To the knowledge of the Company, the Company and its Subsidiaries have not infringed, misappropriated or otherwise violated, and the operation of the businesses of the
Company and its Subsidiaries, as currently conducted or proposed to be conducted, does not and would not infringe, misappropriate or otherwise violate, any Patents or other intellectual property rights of any third party. The Company and its
Subsidiaries have not received any notices (i) challenging the validity, use, ownership, enforceability, or patentability of any Company Patents, except as specifically set forth on Schedule 4.27(f), or (ii) alleging that the Company, its
Subsidiaries, or the operation of their businesses infringes, misappropriates or otherwise violates any Patents or other intellectual property rights of any third party (including any demands or offers to license any Patents from any third party).
(g) With respect to each Company Patent, (i) to the knowledge of the Company, there is no prior art, not cited to or by a Governmental Authority, that could prevent (or could have prevented) a Patent from issuing or that might render
such Company Patent
invalid or unenforceable, (ii) to the knowledge of the Company, there are no facts or circumstances that could reasonably be expected to render
such Company Patent invalid or unenforceable, (iii) such Company Patent names the proper inventor(s); (iv) each inventor of such Company Patent has assigned to the Company, its Subsidiaries or, in the case of Company Licensed Patents, the applicable
licensor all of such inventor’s right, title and interest in and to the Company Patent, including each application therefore, letters patent issue therefrom, and the invention(s) claimed thereby, together with an agreement from each such inventor to
sign such further documents and cooperate in such further manner as is reasonable in order for the owner and any subsequent assignee of such rights to enforce its rights and to apply for Patents in any country, and each such inventor was properly
compensated for such assignment, if required by applicable Laws; and (v) except as expressly set forth on Schedule 4.27(b), there are no future royalties, honoraria, fees or other payments or consideration owed to any inventor or other third party by
reason of the ownership, use, possession, enforcement, license, sale, or disposition of any such Company Patents.
(h) No funding, sponsorship, facilities or other resources or assistance provided by any Governmental Authority or any other third party could adversely affect the Company’s exclusive ownership of or license rights in any Company Patent
or create an Encumbrance (including march-in rights), other than the Permitted Encumbrances, on any Company Patent.
4.28 Cybersecurity. There has been no security breach or incident, unauthorized access or disclosure, or other compromise of or relating to the Company’s or its Subsidiaries’ information technology and computer systems,
networks, hardware, software, data and databases (including, without limitation, the data and information of their respective customers, employees, suppliers and vendors and any third party data maintained, processed or stored by the Company and
its Subsidiaries, and any such data processed or stored by third parties on behalf of the Company and its Subsidiaries), equipment or technology (collectively, “IT Systems and Data”). Neither the Company nor any of its Subsidiaries have been notified of, or have knowledge of any event or condition that would result in, any security breach or incident, unauthorized access or disclosure or other
compromise to their IT Systems and Data. The Company and its Subsidiaries have implemented appropriate controls, policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and
security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards. The Company and its Subsidiaries are presently in material compliance with all applicable laws or
statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the
protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
4.29 Compliance with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable state and federal data privacy and security laws and regulations, and
the Company and its Subsidiaries have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently are in compliance with, the European Union General Data Protection Regulation (EU 2016/679)
(collectively, the “Privacy Laws”). To ensure compliance with the Privacy Laws, the Company and its Subsidiaries have in place, comply with, and take
appropriate steps
reasonably designed to ensure compliance in all material respects with their policies and procedures relating to data privacy and security and
the collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”). The Company and its Subsidiaries have at all times made all disclosures to users or customers required by
applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any
material respect. The Company further certifies that neither it nor any of its Subsidiaries (i) has received notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no
knowledge of any event or condition that would reasonably be expected to result in any such notice, (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law
or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.
4.30 Employee Agreements. Each current and former employee, consultant and officer of the Company has executed an agreement with the Company regarding confidentiality and proprietary information and the Company is not
aware that any such person is in violation of any such agreement.
4.31 Environmental Laws. The Company and its Subsidiaries and their respective properties, assets and operations are in compliance with, and the Company and each of its Subsidiaries hold all permits, authorizations and
approvals required under, Environmental Laws, except to the extent that failure to so comply or to hold such permits, authorizations or approvals would not, individually or in the aggregate, have a Material Adverse Effect. There are no past or
present events, conditions, circumstances, activities, practices, actions or omissions that could reasonably be expected to give rise to any material costs or liabilities to the Company or its Subsidiaries under, or to interfere with or prevent
compliance by the Company or any of its Subsidiaries with, Environmental Laws, except as would not, individually or in the aggregate, have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries (i) is the subject of any
investigation, (ii) has received any notice or claim, (iii) is a party to or affected by any pending or, to the Company’s knowledge, threatened action, suit or proceeding, (iv) is bound by any judgment, decree or order known to the Company or (v)
has entered into any agreement, in each case relating to any alleged violation of any Environmental Law or any actual or alleged release or threatened release or cleanup at any location of any Hazardous Materials.
4.32 Insurance. The Company and its Subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as the Company reasonably deems
adequate and such insurance insured against such losses and risks in accordance with customary industry practice, and all such insurance is in full force and effect. The Company has no reason to believe that it or any of its Subsidiaries will not
be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that
would not result in a Material Adverse Effect.
4.33 Tax Status. All material tax returns of the Company and its Subsidiaries required by law to be filed have been filed (within any applicable time limit extensions permitted
by the relevant taxing authority) and all material taxes and other assessments shown by such returns or otherwise assessed, which are due and
payable (whether imposed directly or through withholding) including any interest, additions to tax or penalties applicable thereto due or claimed to be due from such entities have been paid, except assessments against which appeals have been or will be
promptly taken and as to which adequate reserves have been provided.
4.34 Absence of Labor Disputes. Neither the Company nor any of its Subsidiaries is engaged in any unfair labor practice. Except for matters which would not, individually or in the aggregate, have a Material Adverse
Effect, (i) there is (A) no unfair labor practice complaint pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries before the National Labor Relations Board or any other court in the United States, Belgium
or elsewhere, and no grievance or arbitration proceeding arising out of or under collective bargaining agreements is pending or, to the Company’s knowledge, threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the Company’s
knowledge, threatened against the Company or any of its Subsidiaries and (C) no union representation dispute currently existing concerning the employees of the Company or any of its Subsidiaries, (ii) to the Company’s knowledge, no union organizing
activities are currently taking place concerning the employees of the Company or any of its Subsidiaries and (iii) there has been no violation of any U.S. or Belgian federal, state, local or foreign law relating to discrimination in the hiring,
promotion or pay of employees, any applicable wage or hour laws or any provision of the Employee Retirement Income Security Act of 1974, as amended, or any similar legislation from elsewhere in the world or the rules and regulations promulgated
thereunder, to the extent applicable to the employees of the Company or any of its Subsidiaries.
4.35 Choice of Law. The choice of the law of the State of New York as the governing law of this Agreement and the Shareholders’ Rights Agreement is a valid choice of law under the laws of Belgium and will be honored by
courts in Belgium.
4.36 Personal Jurisdiction. The Company has the power to submit and, pursuant to Section 7.2 of this Agreement and Section 9.14 of the Shareholders’ Rights Agreement, has legally, validly, effectively and
irrevocably submitted, to the personal jurisdiction of each New York State and United States Federal court sitting in the City of New York and has validly and irrevocably waived any objection to the laying of venue of any suit, action or proceeding
brought in any such court.
4.37 Judgment and Enforceability. Subject to compliance with the laws of Belgium on recognition and enforcement of judgments, any final judgment for a fixed sum of money rendered by a New York court having jurisdiction
under its own domestic laws in respect of any suit, action or proceeding against the Company based upon this Agreement or the Shareholders’ Rights Agreement would be recognized and enforced by courts in Belgium, without re-examining the merits of
the case. Upon execution and delivery, this Agreement and the Shareholders’ Rights Agreement will be in proper legal form under the laws of Belgium for the enforcement hereof and thereof against the Company, except to the extent enforcement may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and general equity principles and, with respect to any indemnification or
contribution provision, limited by the federal and state securities laws. To ensure the legality, validity, enforceability, priority or admissibility in evidence
of this Agreement and the Shareholders’ Rights Agreement it is not necessary that this Agreement, the Shareholders’ Rights Agreement or any
other document related hereto be filed, registered or recorded with or executed or notarized before, any governmental or regulatory authority or agency of Belgium.
4.38 No Immunity. Neither the Company nor any of its Subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Belgium.
5. Representations and Warranties of the Investor. The Investor hereby represents and warrants the following as of the date hereof and as of each Closing Date (except for the representations and warranties that speak as
of a specific date, which shall be made as of such date):
5.1 Organization; Good Standing. The Investor is duly organized, validly existing and in good standing under the laws of the United Kingdom. The Investor has or will have all requisite power and authority to enter into
this Agreement, to subscribe for the Securities and to perform its obligations under and to carry out the other transactions contemplated by this Agreement.
5.2 Authorization. All requisite action on the part of the Investor and its directors and stockholders, required by applicable Law for the authorization, execution and delivery by the Investor of this Agreement and the
performance of all of its obligations hereunder, including the subscription for the Securities, has been taken. This Agreement has been duly executed and delivered by the Investor and upon the due execution and delivery thereof by the Company,
will constitute valid and legally binding obligations of the Investor, enforceable against the Investor in accordance with its terms (except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium
or other Laws of general application relating to or affecting enforcement of creditors’ rights and (b) rules of Law governing specific performance, injunctive relief or other equitable remedies and limitations of public policy).
5.3 No Conflicts. The execution, delivery and performance of this Agreement and compliance with the provisions hereof by the Investor do not and shall not: (a) violate any provision of applicable Law or any ruling, writ,
injunction, order, permit, judgment or decree of any Governmental Authority, (b) constitute a breach of, or default under (or an event which, with notice or lapse of time or both, would become a default under) or conflict with, or give rise to any
right of termination, cancellation or acceleration of, any agreement, arrangement or instrument, whether written or oral, by which the Investor or any of its assets, are bound, or (c) violate or conflict with any of the provisions of the Investor’s
organizational documents (including any articles or memoranda of organization or association, charter, bylaws or similar documents), except, in the case of subsections (a) or (b), as would not materially and adversely affect the ability of the
Investor to consummate the Transaction and perform its obligations under this Agreement.
5.4 No Governmental Authority Consents. No consent, approval, authorization or other order of any Governmental Authority is required to be obtained by the Investor in
connection with the authorization, execution and delivery of any of this Agreement or with the subscription for the Securities.
5.5 Purchase Entirely for Own Account. The Securities are being acquired for investment for the Investor’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof,
and the Investor has no present intention of selling, granting any participation or otherwise distributing the Securities, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other
applicable securities Laws. The Investor does not have and will not have as of each Closing any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participation to a Person any of the Securities.
5.6 Disclosure of Information. The Investor has had the opportunity to review the Filings and has received all the information from the Company and its management that the Investor considers necessary or appropriate for
deciding whether to purchase the Securities hereunder. The Investor further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the Company, its financial condition, results of operations and
prospects and the terms and conditions of the offering of the Securities sufficient to enable it to evaluate its investment. Based on the information the Investor has deemed appropriate, it has independently made its own analysis and decision to
enter into the Transaction Documents.
5.7 Investment Experience and Accredited Investor Status. The Investor is an “accredited investor” (as defined in Regulation D under the Securities Act) and an institutional investor defined under FINRA Rule 4512(c).
The Investor has such knowledge and experience in financial or business matters that it is capable of independently evaluating the merits and risks of the investment in the Securities to be subscribed for hereunder.
5.8 Restricted Securities. The Investor understands that the Securities, when issued, shall be “restricted securities” under the federal securities Laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such Laws the Securities may be resold without registration under the Securities Act only in certain limited circumstances. The Investor represents that it is familiar with Rule 144 of the
Securities Act, as presently in effect (“Rule 144”).
5.9 Financial Assurances. The Investor has and will have access to cash in an amount sufficient to pay to the Company the Aggregate Subscription Price.
6. Additional Covenants and Agreements.
6.1 Market Listing. As soon as practicable following each Closing Date, the Company shall prepare a listing prospectus, to the extent required by law. The Company shall use its best efforts to obtain the admission to
trading of the applicable Securities on the Euronext Brussels and Euronext Paris markets within [***] of the respective Closing Date. The Company shall pay all costs associated with the listing of the Securities in accordance with this Section
6.1.
6.2 Interim Operations. From the Effective Date until the Second Closing Date, the Company shall, and shall cause its Subsidiaries to, conduct their respective businesses only in
the ordinary course consistent with past practice and preserve substantially intact their business organizations and to preserve substantially
intact the rights, goodwill and relationships of their employees, customers, regulators and others having business relationships with the Company and its Subsidiaries. Without limiting the generality of the foregoing, except for actions explicitly
required by this Agreement or approved by the Investor in writing, from the Effective Date until the Second Closing Date, the Company and its Subsidiaries shall not (a) amend their organizational documents, (b) issue any share capital or capital stock
or grant any options or other rights to acquire any capital stock, other than the Concurrent Subscriptions, (c) split, combine, subdivide or reclassify any shares of capital stock, (d) declare, set aside or pay any dividend or other distribution on
shares of capital stock, (e) redeem, purchase or otherwise acquire any shares of capital stock, (f) incur or issue any indebtedness, (g) enter into any Dartmouth IP Transaction (as defined in the Shareholders’ Rights Agreement), (h) sell, exchange,
license or otherwise dispose of any assets or rights material to their business or (i) agree or otherwise commit to take any of the actions set forth in the foregoing subsections (a) through (h).
6.3 Assistance and Cooperation Generally. Each of the parties agrees to use reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other party
in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including using reasonable efforts to accomplish the following: (a)
obtaining all necessary shareholder approvals in connection with the issuance of the Second Securities; (b) obtaining all necessary actions or non-actions, waivers, consents, approvals, orders and authorizations from Governmental Authorities and
the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Authorities, if any) and taking all reasonable steps as may be necessary to avoid any suit, claim, action,
investigation or proceeding by any Governmental Authority; and (c) taking all reasonable steps to obtain all necessary consents, approvals or waivers from Third Parties.
6.4 Investor Co-optation. On the First Closing Date, the Board of Directors shall co-opt the Investor as a member of the Board of Directors in replacement of Michel Lussier until the Company EGM. The parties agree that
the Board of Directors shall consist of (a) seven (7) members with one (1) vacancy as of the resignation of Michel Lussier immediately prior to the First Closing and (b) eight (8) members with no vacancies as of immediately following the
co-optation of the Investor pursuant to the foregoing sentence.
6.5 EGM Convocation; Agenda Items. On or after the Effective Date, the Investor shall provide to the Company written notice (the “Investor Designee Proposal Notice”) containing the names of four (4) Persons (the “Investor Designee Proposal Designees”) to be appointed to the Board of Directors
at the Company EGM. The Company shall, as soon as practicable after receipt of the Investor Designee Proposal Notice, publish the Convening Notice in accordance with, among others, article 7:128 of the Belgian Code on Companies and Associations
(the “Convening Notice Publication”), and shall, by means of the Convening Notice, convene an extraordinary general meeting of the shareholders of the
Company to be held as soon as possible, and in any event within [***] following the Convening Notice Publication (the “Company EGM”; provided that, if the
attendance quorum for any Company EGM Proposal (if any) is not achieved at such extraordinary general meeting of the shareholders, the Board of Directors shall convene a second extraordinary general meeting of the shareholders to be held as
soon as practicable and in any event no later than [***] following the first extraordinary general meeting, the agenda of which shall include
the relevant Company EGM Proposals, at which no attendance quorum will apply for the relevant Company EGM Proposals, and which shall constitute the “Company EGM” with respect to the relevant Company EGM Proposals), at which the shareholders of the
Company will be asked to approve (i) all items necessary to give effect to the Second Closing (the “Second Closing Proposal”) if not already approved by an extraordinary general meeting organized earlier, (ii)
the definitive appointment (or confirmation of the co-optation, in the case of the Investor, if applicable) to the Board of Directors of the Investor Designee Proposal Designees (the “Investor Designee Proposal”),
each for an initial mandate of four (4) years, such that the Board of Directors shall consist of eleven (11) members, including six (6) Fortress Designees (as defined in the Shareholders’ Rights Agreement), and (iii) an amendment to the Company’s
articles of association memorializing Section 6.1 of the Shareholders’ Rights Agreement in the Company’s articles of association (together with the Second Closing Proposal and the Investor Designee Proposal, the “Company
EGM Proposals”). Following (but not prior to) the adoption of the Company EGM Proposals, the Board of Directors may also recommend to the shareholders to approve a resolution to fully restore or increase the authorized capital of the Company
or such other matters as may be determined by the Board of Directors. The Board of Directors shall use best efforts, including to support and defend the Company EGM Proposals and to recommend that the Company’s shareholders approve the Company EGM
Proposals, to cause the Company EGM Proposals to be approved. In the event that any Company EGM Proposal fails to receive shareholder approval at the Company EGM (or a subsequent general shareholders’ meeting of the Company), other than as a result of
the failure by the Investor or any of its Affiliates to vote all their voting securities in favor of such Company EGM Proposal, then, to the extent permitted by applicable law, without limiting any other remedies that may be available, the following
rules shall apply:
(a) The Board of Directors shall take all actions necessary to include any such unapproved Company EGM Proposal on the agenda of an extraordinary general meeting to be held as soon as possible following the date of the Company
EGM. If the attendance quorum for any such unapproved Company EGM Proposal (if any) is not achieved at such extraordinary general meeting of the shareholders, the Board of Directors shall convene a second extraordinary general meeting of the
shareholders, to be held as soon as practicable and in any event no later than [***] following the first extraordinary general meeting, the agenda of which shall include the relevant Company EGM Proposal, at which no attendance quorum will apply
for the relevant Company EGM Proposal. The Board of Directors shall support and defend such unapproved Company EGM Proposal, recommend that the Company’s shareholders approve such unapproved Company EGM Proposal, and otherwise use best efforts to
cause such unapproved Company EGM Proposal to be approved.
(b) The Board of Directors shall continue to re-submit proposals pursuant to Section 6.5(a) to subsequent annual general meetings of the shareholders of the Company or extraordinary general meetings of the shareholders
held at the same time, until such proposals are approved by the Company’s shareholders. If the attendance quorum for any such proposal (if any) is not achieved at such extraordinary general meeting of the shareholders, the Board of Directors shall
convene a second extraordinary general meeting of the shareholders, to be held as soon as practicable and in any event no later than [***] following the first
extraordinary general meeting, the agenda of which shall include the relevant proposals, at which no attendance quorum will apply for the relevant
proposals.
6.6 Certificate. Promptly after each Closing, the Company hereby agrees to deliver or cause to be delivered to the Investor a certificate representing the Securities subscribed for by the Investor hereunder and
registered in the name of the Investor.
7. Miscellaneous.
7.1 Governing Law. The substantive laws of the State of New York shall govern the interpretation, validity and performance of the terms of this Agreement, without regard to conflicts of law doctrines.
7.2 Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
LOCATED IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND THE APPELLATE COURTS THEREOF. EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT THE ADDRESS FOR NOTICES SET FORTH HEREIN. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY TRIAL WITH RESPECT TO DISPUTES HEREUNDER.
7.3 Waiver. Waiver by a party of a breach hereunder by the other party shall not be construed as a waiver of any subsequent breach of the same or any other provision. No delay or omission by a party in exercising or
availing itself of any right, power or privilege hereunder shall preclude the later exercise of any such right, power or privilege by such party. No waiver shall be effective unless made in writing with specific reference to the relevant
provision(s) of this Agreement and signed by a duly authorized representative of the party granting the waiver.
7.4 Notices. All notices, instructions and other communications hereunder or in connection herewith shall be in writing, shall be sent to the address of the relevant party set forth on Exhibit B attached hereto
and shall be (a) delivered personally, (b) sent by registered or certified mail, return receipt requested, postage prepaid, (c) sent via a reputable nationwide overnight
courier service or (d) sent by email. Any such notice, instruction or communication shall be deemed to have been delivered upon receipt if
delivered by hand, [***] Business Days after it is sent by registered or certified mail, return receipt requested, postage prepaid, [***] Business Day after it is sent via a reputable nationwide overnight courier service, or upon confirmation of
receipt if sent by email. Either party may change its address by giving notice to the other party in the manner provided above.
7.5 Entire Agreement. This Agreement and the Shareholders’ Rights Agreement constitute the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein and supersede all
prior agreements and understandings between the parties hereto with respect to the subject matter hereof, and there are no restrictions, promises, representations, warranties, covenants, conditions or undertakings with respect to the subject matter
hereof, other than those expressly set forth or referred to herein or therein.
7.6 Amendments; Termination. This Agreement may not be amended, modified or supplemented unless such amendment, modification or supplement is in writing and signed by each of the Investor and the Company. This Agreement
may be terminated at any time (a) by mutual consent of the Investor and the Company; (b) by the Investor if the Second Closing shall not have occurred within [***] following the Convening Notice Publication; provided that the right to
terminate this Agreement under this Section 7.6(b) shall not be available if the Investor’s failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Second Closing to
occur prior to such date; or (c) by either the Investor or the Company in the event that any Governmental Authority shall have issued an order, decree or ruling or taken any other action restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order, decree, ruling or other action shall have become final and nonappealable.
7.7 Headings. The headings in this Agreement are for convenience of reference only and shall not control or effect the meaning or construction of any provisions hereof.
7.8 Construction. Headings in this Agreement are for convenience of reference only and shall not control or effect the meaning or construction of any provisions hereof. For the purposes of this Agreement (i) words
(including capitalized terms defined herein) in the singular shall be held to include the plural and vice-versa and words (including capitalized terms defined herein) of one gender shall be held to include the other gender as the context requires,
(ii) the terms “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, (iii) Section references are to
Sections of this Agreement, unless otherwise specified, (iv) the word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,” (v) all references to any period of days shall be deemed to be to
the relevant number of calendar days unless otherwise specified, (vi) all references herein to “$” or dollars shall refer to United States dollars, unless otherwise specified and (vii) references to any statute, regulation or statutory provision
shall be deemed to include reference to any statute, regulation or statutory instrument which amends, extends, consolidates or replaces the same (or shall have done so) and to any other regulation, statutory instrument or other subordinate
legislation made thereunder or pursuant thereto, provided that no such reference shall include any amendment, extension or replacement of the same with retrospective effect.
7.9 Translation. The original version of this Agreement has been made in English. Should this Agreement be translated in whole or in part into another language (if at all), the original English version shall prevail
between the parties hereto to the fullest extent possible and permitted by Belgian law. Notwithstanding the foregoing, Belgian legal concepts which are expressed in English language terms, are to be interpreted in accordance with the Belgian legal
terms to which they refer, and the use herein of French or Dutch words in this Agreement as translation for certain words or concepts shall be conclusive in the determination of the relevant legal concept under Belgian law of the words or concepts
that are so translated herein.
7.10 Severability. The provisions of this Agreement are independent of and separable from each other. The invalidity, illegality or unenforceability of one or more of the provisions of this Agreement in any jurisdiction
shall not affect the validity, legality or enforceability of the remainder of this Agreement, including any such provisions, in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable
to the fullest extent permitted by law. The parties hereto shall endeavor in good faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provision, as applicable.
7.11 Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either the Investor or the Company without (a) the prior written consent of the Company in the case of any
assignment by the Investor; provided that the prior written consent of the Company shall not be required in the case of any assignment by the Investor to an Affiliate of the Investor, or (b) the prior written consent of the Investor in the case of
an assignment by the Company.
7.12 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
7.13 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument.
7.14 Third Party Beneficiaries. None of the provisions of this Agreement shall be for the benefit of or enforceable by any Third Party, including any creditor of any party hereto. No Third Party shall obtain any right
under any provision of this Agreement or shall by reason of any such provision make any claim in respect of any debt, liability or obligation (or otherwise) against any party hereto.
7.15 No Strict Construction. This Agreement has been prepared jointly and will not be construed against either party.
7.16 Survival of Warranties. The representations and warranties of the Company and the Investor contained in this Agreement shall survive the execution and delivery of this Agreement and the Closing for a period of [***]
and shall in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of the Investor or the Company.
7.17 Injunctive Relief. Each party hereto acknowledges and agrees that a violation of any of the terms of this Agreement will cause the other parties irreparable injury for which an adequate remedy at law is not
available. Therefore, the parties agree that each party shall be entitled to an injunction, restraining order, specific performance or other equitable relief from any court of competent jurisdiction to enforce the provisions of this Agreement or
to restrain any party from committing any violations of the provisions of this Agreement, without the need to post a bond or prove the inadequacy of monetary damages.
7.18 Remedies. The rights, powers and remedies of the parties under this Agreement are cumulative and not exclusive of any other right, power or remedy which such parties may have under any other agreement or Law. No
single or partial assertion or exercise of any right, power or remedy of a party hereunder shall preclude any other or further assertion or exercise thereof.
7.19 Expenses. Each party shall pay its own fees and expenses in connection with the preparation, negotiation, execution and delivery of this Agreement.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first above written.
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CFIP CLYD (UK) LIMITED
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By:
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/s/ Nick Fegan
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Name:
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Nick Fegan
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Title:
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Director
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CELYAD ONCOLOGY SA
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By:
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/s/ Georges Rawadi
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Name:
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Georges Rawadi
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Title:
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Chief Executive Officer
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Signature Page to Subscription Agreement
EXHIBIT A
FORM OF CROSS RECEIPT
CROSS RECEIPT
Celyad Oncology SA hereby acknowledges receipt from CFIP CLYD (UK) Limited (“UKF”)
on _________________, 2023 of €_________________, representing the purchase price for _________________ new ordinary shares, without nominal value, of Celyad Oncology SA, pursuant to that certain Subscription
Agreement, dated as of August 24, 2023, by and between UKF and Celyad Oncology SA.
UKF hereby acknowledges receipt from Celyad Oncology SA on _________________, 2023 of _________________ ordinary shares, without nominal value, of Celyad Oncology SA, delivered pursuant to that certain Subscription Agreement, dated as of August 24, 2023, by and between UKF and Celyad Oncology SA.
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CELYAD ONCOLOGY SA
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By:
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Name:
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Georges Rawadi
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Title:
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Chief Executive Officer
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CFIP CLYD (UK) LIMITED
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By:
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Name:
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Title:
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Signature Page to Cross Receipt
EXHIBIT B
NOTICES
(a) If to the Investor:
CFIP CLYD (UK) Limited
c/o Fortress Investment Group
1345 Avenue of the Americas
Attn: General Counsel – Credit Funds
[***]
Email: [***]
[***]
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, New York 10001
Attention: Michael Schwartz, Esq.
Email: michael.schwartz@skadden.com
(b) If to the Company:
Celyad Oncology SA
Rue Edouard Belin 2
1435 Mont-Saint-Guibert
Belgium
Attention: Head of Legal
Email: [***]
Attention: Chief Executive Officer
Email: [***]
With copy to:
Allen & Overy (Belgium) LPP
Avenue de Tervueren 268A
B-1150 Bruxelles
Belgium
Attention: [***]
Email: [***]
B-1
ANNEX I
FORM OF AMENDED ARTICLES OF ASSOCIATION
[***]
ANNEX II
FORM OF CORPORATE GOVERNANCE CHARTER
[***]
ANNEX III
FORM OF AMENDED AND RESTATED SHAREHOLDERS’ RIGHTS AGREEMENT
[***]
SCHEDULE 4.27(a)
[***]
SCHEDULE 4.27(b)
[***]
SCHEDULE 4.27(c)
[***]
SCHEDULE 4.27(d)
[***]
SCHEDULE 4.27(f)
[***]
Exhibit 5
SPECIFIC TERMS IN THIS EXHIBIT HAVE BEEN REDACTED. THESE REDACTED TERMS HAVE BEEN MARKED IN THIS EXHIBIT WITH THREE ASTERISKS [***].
FORM OF
AMENDED AND RESTATED
SHAREHOLDERS’ RIGHTS AGREEMENT
BY AND AMONG
CFIP CLYD LLC,
CFIP CLYD (UK) LIMITED
AND
CELYAD ONCOLOGY SA
Dated as of , 2023
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
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Section 1.1
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Certain Defined Terms
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1
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Section 1.2
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Construction
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8
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Section 1.3
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Translation
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9
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ARTICLE II
TRANSFER
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Section 2.1
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Binding Effect on Transferees
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9
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Section 2.2
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Additional Purchases
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9
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Section 2.3
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Legends
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9
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Section 2.4
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Legend Removal
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10
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Section 2.5
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Lock-Up Agreement
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10
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ARTICLE III
BOARD OF DIRECTORS
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Section 3.1
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Fortress Designees
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10
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Section 3.2
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Replacement
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11
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Section 3.3
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Board Composition Restrictions
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12
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Section 3.4
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Exclusion of Board Observer
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12
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Section 3.5
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Directors’ and Officers’ Insurance
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12
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Section 3.6
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Corporate Opportunity
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12
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ARTICLE IV
REGISTRATION RIGHTS
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Section 4.1
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Demand Registration
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13
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Section 4.2
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Piggyback Registrations
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15
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Section 4.3
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Shelf Registration
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17
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Section 4.4
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Withdrawal Rights
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18
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Section 4.5
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Registration Procedures
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19
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Section 4.6
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Registration Expenses
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24
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ARTICLE V
RIGHT OF FIRST OFFER; ANTI-DILUTION
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Section 5.1
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Indebtedness
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25
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Section 5.2
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Anti-Dilution
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27
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ARTICLE VI
OTHER COMPANY OBLIGATIONS
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Section 6.1
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Protective Provisions
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28
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Section 6.2
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Replacement Confirmation Proposals
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28
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Section 6.3
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Regulatory Limitation
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29
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Section 6.4
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Foreign Private Issuer Status
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29
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Section 6.5
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Use of Proceeds
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29
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ARTICLE VII
TAX MATTERS
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Section 7.1
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U.S. Federal Income Tax Reporting
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29
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Section 7.2
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Cooperation
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30
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ARTICLE VIII
INDEMNIFICATION
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Section 8.1
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General Indemnification
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30
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Section 8.2
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Registration Statement Indemnification
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31
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Section 8.3
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Contribution
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32
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Section 8.4
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Procedure
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33
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Section 8.5
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Other Matters
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33
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ARTICLE IX
MISCELLANEOUS
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Section 9.1
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Headings
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34
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Section 9.2
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Entire Agreement
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34
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Section 9.3
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Further Actions; Cooperation
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35
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Section 9.4
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Notices
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35
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Section 9.5
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Applicable Law
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36
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Section 9.6
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Severability
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36
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Section 9.7
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Successors and Assigns
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36
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Section 9.8
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Amendments
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37
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Section 9.9
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Waiver
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37
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Section 9.10
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Counterparts
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37
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Section 9.11
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Confidentiality
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37
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Section 9.12
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Dispute Resolution
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38
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Section 9.13
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Injunctive Relief
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38
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Section 9.14
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Submission to Jurisdiction
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39
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Section 9.15
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Recapitalizations, Exchanges, Etc.; New Issuance
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39
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Section 9.16
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Termination
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39
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Section 9.17
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No Third Party Beneficiaries
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40
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Section 9.18
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Rule 144
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40
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Section 9.19
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Information
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40
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Schedules
Schedule A – Dartmouth IP
AMENDED AND RESTATED SHAREHOLDERS’ RIGHTS AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS’ RIGHTS AGREEMENT (this “Agreement”) is made as of , 2023, by
and among CFIP CLYD LLC, a Delaware limited liability company (“CFIP”), CFIP CLYD (UK) Limited, a U.K. private limited company (“UKF”), and Celyad Oncology SA, a limited liability company incorporated and existing in the form of a naamloze vennootschap / société anonyme under Belgian law, having its registered office at Rue Edouard Belin 2, 1435 Mont-Saint-Guibert (Belgium) and registered with the Crossroads Bank for Enterprises under
number 0891.118.115 (RLE Brabant Wallon) (the “Company”).
WHEREAS, CFIP previously subscribed for and purchased Ordinary Shares (as hereinafter defined) pursuant to that certain
Subscription Agreement, dated as of December 2, 2021, between CFIP and the Company (the “2021 Investment”);
WHEREAS, in connection with the 2021 Investment, CFIP entered into that certain Shareholders’ Rights Agreement, dated as of
December 2, 2021 (the “Original Agreement”);
WHEREAS, UKF is subscribing for and purchasing an aggregate of 16,358,654 Ordinary Shares pursuant to that certain
Subscription Agreement, dated as of August 24, 2023, between UKF and the Company (the “Subscription Agreement”); and
WHEREAS, the Company and CFIP desire to amend and restate the Original Agreement by entering into this Agreement with UKF in
order to provide the rights set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein and for good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain
Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:
(a) “Acquisition Transaction” shall mean (i) any sale, license, lease, exchange, transfer or other disposition of the assets of the Company or any Subsidiary of the Company constituting more than 50% of the consolidated assets of the
Company or accounting for more than 50% of the consolidated revenues of the Company in any one transaction or in a series of related transactions; or (ii) any merger, consolidation, business combination, share exchange, reorganization or similar
transaction or series of related transactions involving the Company or any Subsidiary of the Company whereby the holders of voting rights of the Company immediately prior to any such transaction hold less than 50% of the voting rights of the
Company or the surviving corporation (or its parent company) immediately after the consummation of any such transaction.
(b) “Acting in Concert” shall mean, when used in relation to a Person, acting in concert (in onderling overleg handelende personen / personnes agissant de concert) in the sense of Article 3, §1,
5° of the Belgian Act of 1 April 2007 regarding public takeover bids, or Article 1, §2, 5° of the Belgian Royal Decree of 27 April 2007 regarding public takeover bids.
(c) “Actions” shall have the meaning assigned to it in Section 8.1.
(d) “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated under the Exchange Act; provided that (i) no Shareholder shall be deemed an Affiliate of any other
Shareholder solely by reason of any investment in the Company, (ii) in no event shall CFIP, UKF or any of their respective Affiliates be deemed Affiliates of the Company or any of its Affiliates, nor shall the Company or any of its Affiliates be
deemed Affiliates of CFIP, UKF or any of their respective Affiliates, and (iii) in the case of CFIP and UKF, the term “Affiliate” shall not include any Portfolio Companies, Mubadala, the Mubadala Group, SoftBank and/or the SoftBank Group.
(e) “Agreement” shall have the meaning assigned to it in the preamble.
(f) “Alternate Proposal Acceptance Notice” shall have the meaning assigned to it in Section 5.1(d).
(g) “Alternate Proposal Notice” shall have the meaning assigned to it in Section 5.1(c).
(h) “American Depositary Shares” shall mean American Depositary Shares of the Company, each representing one Ordinary Share.
(i) “Anti-Dilution Notice” shall have the meaning set forth in Section 5.2(b).
(j) “Belgian Takeover Decree” shall mean the Belgian Royal Decree of 27 April 2007 on takeover bids.
(k) A Person shall be deemed to “Beneficially Own” securities if such Person is deemed to be a “beneficial owner” within the meaning of Rules 13d-3 and 13d-5 under the
Exchange Act as in effect on the date of this Agreement.
(l) “Block Trade Offering” shall mean an Underwritten Offering demanded by one or more Requesting Shareholders that is a no-roadshow “block trade” take-down off of a Shelf
Registration Statement where pricing is expected to occur no later than the fifth Business Day after such demand is made. For the avoidance of doubt, management’s participation in one or more conference calls with potential investors shall not
constitute a roadshow.
(m) “Board of Directors” shall mean the Company’s board of directors (raad van bestuur / conseil d’administration).
(n) “Business Day” shall mean a day other than (a) a Saturday or a Sunday, (b) a bank or other public holiday in New York City, or (c) a bank or other public holiday in Brussels, Belgium.
(o) “CFC” shall mean a “controlled foreign corporation” as defined in section 957 of the Code.
(p) “Code” shall mean the United States Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder.
(q) “Commission” shall mean the United States Securities and Exchange Commission or any successor agency.
(r) “Company” shall have the meaning assigned to it in preamble.
(s) “Confidential Information” shall have the meaning given to it in Section 9.11.
(t) “Control” shall mean the power, through the ownership of securities, contract or otherwise, to direct the policies of the applicable person or entity.
(u) “Covered Persons” shall have the meaning assigned to it in Section 3.6.
(v) “Dartmouth IP” shall mean any intellectual property licensed to the Company or any of its Subsidiaries from the Trustees of Dartmouth College relating to TCR deficiency, including, but not limited to, the patents listed on Schedule
A. For the avoidance of doubt, “Dartmouth IP” does not include the Company’s cardiological medical devices.
(w) “Dartmouth IP Transaction” shall mean any IP Transaction with any of the following characteristics: (i) a transfer of litigation or prosecution rights to licensees and sublicensees associated with any Dartmouth IP, (ii) the
granting of an exclusive or non-exclusive license to any Dartmouth IP or (iii) the termination of the rights of the Company or any of its Subsidiaries to any Dartmouth IP.
(x) “Debt ROFO Notice” shall have the meaning assigned to it in Section 5.1(a).
(y) “Demand” shall have the meaning assigned to it in Section 4.1(a).
(z) “Demand Registration” shall have the meaning assigned to it in Section 4.1(a).
(aa) “Depositary” shall mean Citibank, N.A.
(bb) “Dispute” shall have the meaning assigned to it in Section 9.12.
(cc) “Dispute Notice” shall have the meaning assigned to it in Section 9.12.
(dd) “Equity Security” shall mean, with respect to any entity, (i) any share of the entity, and (ii) any other security, financial instrument, certificate and other right (including options, futures, swaps and other derivatives)
issued or contracted by the entity and representing, being exercisable, convertible or exchangeable into or for, or otherwise providing a right to acquire, directly or indirectly, any of the Equity Securities referred to in (i), or (iii) any other
security or financial instrument the value of which is based on any of the foregoing.
(ee) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(ff) “Filings” shall mean any documents filed or furnished by the Company or any Subsidiary of the Company with the Commission under the Exchange Act; annual reports to shareholders,
annual and quarterly statutory statements of the Company or any Subsidiary of the Company; and any registration statements, prospectuses documents filed or furnished by the Company or any of its Subsidiaries with the Commission under the
Securities Act.
(gg) “FINRA” shall mean the Financial Industry Regulatory Authority.
(hh) “Foreign Private Issuer” means a “foreign private issuer” within the meaning of Rule 405 of the Securities Act.
(ii) “Form F-3” shall mean (i) a Registration Statement on Form F-3 under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the Commission for use by a
Foreign Private Issuer that permits incorporation of substantial information by reference to other documents filed by the Company with the Commission or (ii) at such time that the Company is no longer a Foreign Private Issuer, a Registration
Statement on Form S-3 under the Securities Act that may be filed by the Company or any registration form under the Securities Act subsequently adopted by the Commission for use by a domestic issuer that permits incorporation of substantial
information by reference to other documents filed by the Company with the Commission.
(jj) “Fortress Advisor” shall mean Fortress Credit Advisors LLC. For purposes of Article III, “Fortress Advisor” shall also mean any Person or Persons designated in writing
as Fortress Advisor by Fortress Advisor.
(kk) “Fortress Designees” shall mean the Persons identified by Fortress Advisor or its designee from time to time in accordance with the provisions of this Agreement and reasonably acceptable to the Company; provided that CFIP,
UKF, Michel Lussier and any individual that is a director (or an equivalent or senior position) of CFIP, UKF or any of their respective Affiliates shall be deemed to be reasonably acceptable to the Company. For the avoidance of doubt, any of the
Fortress Designees may be employees of CFIP, UKF or any of their respective Affiliates.
(ll) “Fortress Shareholder” shall mean CFIP, UKF and any of their respective Permitted Transferees that is a Shareholder and (1) an Affiliate of CFIP or UKF, (2) a Shareholder Affiliate of CFIP or UKF or (3) a Shareholder Fund of
CFIP or UKF.
(mm) “Governmental Authority” shall have the meaning assigned to it in the Subscription Agreement.
(nn) “Indebtedness” shall mean indebtedness for borrowed money (but excluding, for the avoidance of doubt, recoverable cash advances granted from time to time to the Company by the Walloon Region of Belgium).
(oo) “Initial Dispute Resolution Meeting” shall have the meaning assigned to it in Section 9.12.
(pp) “Inspectors” shall have the meaning assigned to it in Section 4.5(a)(viii).
(qq) “Interested Notice” shall have the meaning assigned to it in Section 5.1(a).
(rr) “IP Transaction” shall have the meaning assigned to it in Section 6.1(a).
(ss) “Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433 under the Securities Act.
(tt) “Lock-Up Securities” shall have the meaning assigned to it in Section 2.5(a).
(uu) “Lockup Period” shall mean the period from the date hereof until the date that is the forty-five (45) day anniversary of the date of issuance of the First Securities (as defined
in the Subscription Agreement).
(vv) “Losses” shall have the meaning assigned to it in Section 8.1.
(ww) “Mubadala” shall mean Mubadala Investment Company PJSC.
(xx) “Mubadala Group” shall mean any Person Controlling, Controlled by or under common Control with Mubadala and its successors and assigns and its and their affiliates that are not also Controlled by Fortress Investment Group
LLC.
(yy) “Ordinary Shares” shall mean ordinary shares of the Company, without nominal value.
(zz) “Other Demanding Sellers” shall have the meaning assigned to it in Section 4.2(b).
(aaa) “Other Proposed Sellers” shall have the meaning assigned to it in Section 4.2(b).
(bbb) “Ownership Percentage” shall mean, with respect to any Person, such Person’s aggregate percentage ownership of the Company.
(ccc) “Permitted Transferee” shall mean, with respect to each Shareholder, (i) any other Shareholder, (ii) such Shareholder’s Affiliates, (iii) in the case of any Shareholder, (A)
any member or general or limited partner of such Shareholder, (B) any corporation, partnership, limited liability
company or other entity that is an Affiliate of such Shareholder or any member, general or limited partner of such Shareholder (collectively, “Shareholder Affiliates”), (C) any investment funds managed
directly or indirectly by such Shareholder or any Shareholder Affiliate (a “Shareholder Fund”), (D) any general or limited partner of any Shareholder Fund or (E) any trust, the beneficiaries of which, or
any corporation, limited liability company or partnership, the stockholders, members or general or limited partners of which, consist solely of any one or more of such Shareholder, any general or limited partner of such Shareholder, any Shareholder
Affiliates, any Shareholder Fund and (iv) any other Person that acquires Equity Securities of the Company from such Shareholder other than pursuant to a Public Offering and that agrees to become party to or be bound by this Agreement.
(ddd) “Person” shall mean any individual, firm, corporation, partnership, limited liability company, trust, unincorporated organization, government or any department or agency thereof
or other entity, as well as any syndicate or group that would be deemed to be a Person under Section 13(d)(3) of the Exchange Act, and shall include any successor (by merger or otherwise) of such entity.
(eee) “PFIC” shall mean a “passive foreign investment company” as defined in section 1297(a) of the Code.
(fff) “Piggyback Notice” shall have the meaning assigned to it in Section 4.2(a).
(ggg) “Piggyback Registration” shall have the meaning assigned to it in Section 4.2(a).
(hhh) “Piggyback Seller” shall have the meaning assigned to it in Section 4.2(a).
(iii) “Portfolio Company” shall mean any portfolio company (as such term is commonly understood in the private equity industry) Controlled by CFIP, UKF or any of their respective Affiliates.
(jjj) “Public Offering” shall mean an offering of Equity Securities of the Company to the public, including an offering in which Shareholders are entitled to sell Equity Securities of
the Company pursuant to the terms of this Agreement.
(kkk) “QEF” shall mean a “qualified electing fund” as defined in section 1295 of the Code.
(lll) “Records” shall have the meaning assigned to it in Section 4.5(a)(viii).
(mmm) “Registrable Amount” shall mean a number of Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) equal to or greater than [***] of the
Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) then issued and outstanding.
(nnn) “Registrable Securities” shall mean any Ordinary Shares or American Depositary Shares currently owned or hereafter acquired by any Shareholder. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when (x) a registration statement registering such securities under the Securities Act has been declared effective and such securities have been sold or otherwise transferred by
the holder thereof pursuant to such effective registration statement or (y) such securities are sold in accordance with Rule 144 (or any successor provision) promulgated under the Securities Act.
(ooo) “Registration Expenses” shall have the meaning assigned to it in Section 4.6(a).
(ppp) “Requested Information” shall have the meaning assigned to it in Section 8.5(d).
(qqq) “Requesting Shareholder” shall have the meaning assigned to it in Section 4.1(a).
(rrr) “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(sss) “Selling Holders” shall have the meaning assigned to it in Section 4.5(a)(i).
(ttt) “Shareholders” shall mean (i) CFIP, (ii) UKF and (iii) each Permitted Transferee who becomes a party to or bound by the provisions of this Agreement in accordance with the terms
hereof or a Permitted Transferee thereof who is entitled to enforce the provisions of this Agreement in accordance with the terms hereof.
(uuu) “Shelf Notice” shall have the meaning assigned to it in Section 4.3(a).
(vvv) “Shelf Registration Effectiveness Period” shall have the meaning assigned to it in Section 4.3(d).
(www) “Shelf Registration Statement” shall have the meaning assigned to it in Section 4.3(a).
(xxx) “Shelf Underwritten Offering” shall have the meaning assigned to it in Section 4.3(f).
(yyy) “SoftBank” shall mean SoftBank Group Corp.
(zzz) “SoftBank Group” shall mean any Person Controlling, Controlled by or under common Control with SoftBank that is not also Controlled by Fortress Investment Group LLC.
(aaaa) “Subscription Agreement” shall have the meaning assigned to it in the preamble.
(bbbb) “Subsequent Dispute Resolution Meeting” shall have the meaning assigned to it in Section 9.12.
(cccc) “Subsidiary” shall mean with respect to any Person (i) a corporation, fifty percent (50%) or more of the voting or capital stock of which is, as of the time in question, directly
or indirectly owned by such Person or (ii) any other partnership, joint venture, association, joint stock company, trust, unincorporated organization or other entity in which such Person, directly or indirectly, owns fifty percent (50%) or more
of the equity economic interest thereof or has the power to elect or direct the election of fifty percent (50%) or more of the members of the governing body of such entity or otherwise has Control over such entity (e.g., as the managing partner
of a partnership).
(dddd) “Suspension Period” shall have the meaning assigned to it in Section 4.3(e).
(eeee) “Third-Party Tender” shall mean a bona fide tender offer or exchange offer by a Person other than CFIP, UKF or any of their respective Affiliates, as a result of which any Person or group of Persons, other than the Company,
would become the beneficial owner of more than [***] of the total voting power of the voting securities of the Company; provided that either (i) the Company has recommended to accept such offer or (ii) the Company has not filed a recommendation to
reject such offer with the Commission within ten (10) Business Days.
(ffff) “Underwritten Offering” shall mean a sale of securities of the Company to an underwriter or underwriters for reoffering to the public, including any bought deal, Block Trade
Offering or other block sale to a financial institution conducted as an underwritten offering to the public.
(gggg) “U.S. Shareholder” shall have the meaning assigned to it in Section 7.1(a).
(hhhh) “WKSI” shall mean a well-known seasoned issuer, as defined in Rule 405 under the Securities Act.
(iiii) “WKSI Shelf Registration Statement” shall mean an automatic shelf registration statement, as defined in Rule 405 under the Securities Act.
Section 1.2 Construction.
For the purposes of this Agreement (i) words (including capitalized terms defined herein) in the singular shall be held to include the plural and vice versa and words (including capitalized terms defined herein) of one gender shall be held to
include the other gender as the context requires, (ii) the terms “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of
this Agreement, (iii) Article and Section references are to Articles and Sections of this Agreement, unless otherwise specified, (iv) the word “including” and words of similar import when used in this Agreement shall mean “including, without
limitation,” (v) all references to any period of days shall be deemed to be to the relevant number of calendar days unless otherwise specified, (vi) all references herein to “$” or dollars
shall refer to United States dollars, unless otherwise specified and (vii) references to any statute, regulation or statutory provision shall be deemed to include
reference to any statute, regulation or statutory instrument which amends, extends, consolidates or replaces the same (or shall have done so) and to any other regulation, statutory instrument or other subordinate legislation made thereunder or
pursuant thereto, provided that no such reference shall include any amendment, extension or replacement of the same with retrospective effect.
Section 1.3 Translation.
The original version of this Agreement has been made in English. Should this Agreement be translated in whole or in part into another language (if at all), the original English version shall prevail between the parties hereto to the fullest extent
possible and permitted by Belgian law. Notwithstanding the foregoing, Belgian legal concepts which are expressed in English language terms, are to be interpreted in accordance with the Belgian legal terms to which they refer, and the use herein of
French or Dutch words in this Agreement as translation for certain words or concepts shall be conclusive in the determination of the relevant legal concept under Belgian law of the words or concepts that are so translated herein.
ARTICLE II
TRANSFER
Section 2.1 Binding
Effect on Transferees. A Permitted Transferee shall become a Shareholder hereunder, without any further action by the Company, following a transfer by a Shareholder of Equity Securities of the Company to such Permitted Transferee upon the
execution by such Permitted Transferee of a joinder providing that such Person shall be bound by and shall fully comply with the terms of this Agreement (including the provisions of Article IV with respect to the Equity Securities of the
Company being transferred to such transferee).
Section 2.2 Additional
Purchases. Any Equity Securities of the Company owned by a Shareholder on or after the date of this Agreement shall have the benefit of and be subject to the terms and conditions of this Agreement.
Section 2.3 Legends.
Any certificate representing Equity Securities of the Company issued to a Shareholder shall be stamped or otherwise imprinted with legends in substantially the following form:
“The securities represented by this certificate have not been registered under the Securities Act, and
may not be sold, offered for sale, pledged or hypothecated in the absence of a registration statement in effect with respect to such securities under the Securities Act, or an opinion of counsel (which counsel shall be reasonably satisfactory to the
Company) that registration is not required, or unless sold pursuant to Rule 144 of the Securities Act.”
“The securities represented by this certificate are subject to the provisions contained in a
Shareholders’ Rights Agreement by and among the Company and certain shareholders of the Company described therein, a copy of which is on file with the Secretary of the Company.”
The Company shall make customary arrangements to cause any Equity Securities of the Company issued in uncertificated form to
be identified on the books of the Company in a substantially similar manner.
Section 2.4 Legend
Removal. After the expiration of the Lockup Period, the Company shall update its shareholders’ register to remove the legends set forth in Section 2.3 from any Equity Securities of the Company as soon as practicable following from
the applicable Shareholder of a written request together with customary representations and other documentation reasonably requested by the Company and/or its registrar or depositary in connection therewith, if such Equity Securities of the Company
(a) may be sold pursuant to Rule 144 or (b) may be transferred without the requirement that the Company be in compliance with the public information requirements and without volume or manner-of-sale restrictions under Rule 144.
Section 2.5 Lock-Up
Agreement.
(a) During the Lockup Period, each Shareholder shall not, without the express written consent of the Company, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise dispose of or transfer any Equity Securities of the Company (together with (a) any Equity Securities of the Company issued in respect thereof as a result of any share split, share dividend,
share exchange, merger, consolidation or similar recapitalization and (b) any Equity Securities of the Company issued as (or issuable upon the exercise of any warrant, right or other security that is issued as) a dividend or other distribution with
respect to, or in exchange or in replacement of, the Equity Securities, the “Lock-Up Securities”), including, without limitation, any “short sale” or similar arrangement, or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of securities, in cash or otherwise; provided, however,
that the foregoing shall not prohibit any Shareholder from transferring Lock-Up Securities to an Affiliate of such Shareholder in accordance with Section 2.1 (whereby such transferee will be bound by the restrictions set forth in this Section
2.5).
(b) Notwithstanding any other provision herein, this Section 2.5 shall not prohibit or restrict any disposition of Lock-Up Securities by any Shareholder in connection with (i) a Third-Party Tender (including entering into a tender
commitment with respect to such Third-Party Tender), (ii) a tender offer by the Company or (iii) the Company’s public announcement of a definitive agreement to consummate an Acquisition Transaction.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 Fortress
Designees. Until such time as the Shareholders own in the aggregate less than the percentage of the then outstanding Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) set forth under the heading “Ownership
Percentage” in the table below for a period of more than [***], (a) Fortress Advisor shall have
the right to select (i) up to the number of Fortress Designees set forth under the heading “Directors” in the table below to be members of the Board of Directors
and (ii) up to the number of Fortress Designees set forth under the heading “Observers” in the table below to be non-voting observers of the Board of Directors and (b) the Board of Directors shall (i) recommend the confirmation or (re)appointment of
at least such number of Fortress Designees as members of the Board of Directors at any applicable general meeting of shareholders of the Company and (ii) appoint at least such number of Fortress Designees as non-voting observers of the Board of
Directors. From and after the date hereof, the Board of Directors shall use its best efforts to cause the definitive appointment to the Board of Directors of at least the number of Fortress Designees set forth in this Section 3.1, which
efforts shall include, without limitation, (I) supporting and defending the appointment to the Board of Directors of at least the number of Fortress Designees set forth in this Section 3.1 and (II) recommending that the Company’s shareholders
approve the appointment to the Board of Directors of at least such number of Fortress Designees.
|
Ownership Percentage
|
Directors
|
Observers
|
|
50%
|
51% of the members of the Board of Directors, rounded up to the nearest whole number
|
one
|
|
30%
|
greater of (i) four and (ii) a percentage of the members of the Board of Directors equal to the aggregate Ownership Percentage of the Shareholders, rounded
up to the nearest whole number
|
one
|
|
10%
|
three
|
one
|
Notwithstanding the foregoing, if at any time the Shareholders own in the aggregate less than 50% of the then outstanding Ordinary Shares
(including Ordinary Shares underlying American Depositary Shares) for a period of more than [***] and Fortress Advisor has the right to select a number of Fortress Designees in accordance with the table above that exceeds 50% of the members of the
Board of Directors, then the number of Fortress Designees so selected shall be reduced such that the Fortress Advisor shall have the right to select a number of Fortress Designees to be members of the Board of Directors that does not exceed 50% of
the members of the Board of Directors. In case of inconsistency between this paragraph and the table above, this paragraph will prevail over the table.
Section 3.2 Replacement.
Upon the termination of the board mandate of any Fortress Designee (for whatever cause, including, but not limited to, the co-optation to the Board of Directors of a different Fortress Designee in replacement of such Fortress Designee), and until
such time as the Shareholders own in the aggregate less than 10% of the then outstanding Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) for a period of more than [***], the Company shall, as soon as practicably
possible, co-opt to the Board of Directors a replacement Fortress Designee and use its best efforts to cause the confirmation of the co-optation and the definitive appointment to the Board of Directors of such
replacement Fortress Designee at the next general meeting of shareholders of the Company, which efforts shall include, without limitation, (I) supporting and
defending the appointment to the Board of Directors of such Fortress Designee and (II) recommending that the Company’s shareholders approve the appointment to the Board of Directors of such Fortress Designee. So long as Fortress Advisor has the
right to replace a Fortress Designee pursuant to this Section 3.2, the Company may not replace the Fortress Designee other than with a replacement Fortress Designee; provided that the Company may replace the Fortress Designee if (i)
in the opinion of outside counsel, the Company is required to appoint a replacement director by applicable law and (ii) Fortress Advisor has failed to select a replacement Fortress Designee prior to the later of (A) the first general meeting of
shareholders occurring following the resignation and (B) 121st day after the Fortress Designee is no longer a member of the Board of Directors. Upon the termination of
the service of any Fortress Designee as a non-voting observer of the Board of Directors (for whatever cause), the Company shall as soon as practicably possible approve the appointment of a new Fortress Designee as a non-voting observer of the Board
of Directors.
Section 3.3 Board
Composition Restrictions. The Shareholders and the Company agree that the composition of the Board of Directors will need to comply with the relevant rules, regulations and corporate governance requirements in relation to gender diversity.
Section 3.4 Exclusion
of Board Observer. If the Board of Directors reasonably determines on the advice of counsel that exclusion of any Fortress Designee that is a non-voting observer of the Board of Directors is necessary (a) to preserve the attorney-client
privilege of the Company (such determination to be based on the advice of legal counsel to the Company), (b) to maintain the confidentiality of executive sessions of the Board or (c) for other similar reasons, then the Company shall have the right
to exclude any Fortress Designee that is a non-voting observer of the Board of Directors, in each case to the extent reasonably deemed necessary by the Board.
Section 3.5 Directors’
and Officers’ Insurance. The Company shall maintain directors’ and officers’ liability insurance (including Side A coverage) covering the Company’s and its Subsidiaries’ directors and officers and issued by reputable insurers, with
appropriate policy limits, terms and conditions (including “tail” insurance if necessary or appropriate). The provisions of this Section 3.5 are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or
her heirs and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
Section 3.6 Corporate
Opportunity. To the fullest extent permitted by applicable law, the Company hereby agrees that CFIP, UKF and their respective Affiliates and their respective members, directors, officers, employees, designees, agents or advisors
(collectively, “Covered Persons” and, each a “Covered Person”) shall not have any obligation to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Company or any of its
Subsidiaries. To the fullest extent permitted by applicable law, the Company, on behalf of itself and its Subsidiaries, renounces any interest or expectancy of the Company and its Subsidiaries in, or in being offered an opportunity to participate
in, business opportunities that are from time to time available to the Covered Persons, even if the opportunity is one that the Company or its Subsidiaries might reasonably be deemed to have pursued or had
the ability or desire to pursue if granted the opportunity to do so. The Company hereby further agrees that each Covered Person shall have no duty to communicate
or offer such business opportunity to the Company (and, to the fullest extent permitted by applicable law, that there shall be no restriction on the Covered Persons using the general knowledge and understanding of the Company and the industry in
which the Company operates that it has gained as a Covered Person in considering and pursuing such opportunities or in making investment, voting, monitoring, governance or other decisions relating to other entities or securities) and, to the fullest
extent permitted by applicable law, shall not be liable to the Company or any of its Subsidiaries or stockholders for breach of any fiduciary or other duty, as a director or officer or otherwise, solely by reason of the fact that such Covered Person
pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Company or its Subsidiaries, or uses such
knowledge and understanding in the manner described herein. The parties specifically agree that each Covered Person is an intended third-party beneficiary of this Section 3.6 and is entitled to rely upon and enforce the rights and obligations
granted herein. In addition to and notwithstanding the foregoing, a corporate opportunity shall not be deemed to belong to the Company if it is a business opportunity that the Company is not financially able or contractually permitted or legally able
to undertake.
ARTICLE IV
REGISTRATION RIGHTS
Section 4.1 Demand
Registration.
(a) At any time after the expiration of the Lockup Period (or such earlier date as would permit the Company to cause any filings required hereunder to be filed on such date), any Person that is a Shareholder (a “Requesting
Shareholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number of Registrable Securities
that, when taken together with the number of Registrable Securities requested to be registered under the Securities Act by such Requesting Shareholder’s Affiliates, equals or is greater than the Registrable Amount and thereupon the Company will,
subject to the terms of this Agreement, use its commercially reasonable efforts to effect the registration (a “Demand Registration”) as promptly as practicable under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested to register by the Requesting Shareholders for disposition in accordance with the intended method of disposition stated in such Demand, which may
be an Underwritten Offering;
(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 4.1(b); and
(iii) any additional securities which the Company may elect to register in connection with any offering of Registrable Securities pursuant to this Section 4.1, but subject to Section 4.1(f);
all to the extent necessary to permit the disposition (in accordance with the intended methods
thereof) of the Registrable Securities and the additional securities, if any, to be so registered.
(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then
known, and (iii) the identity of the Requesting Shareholder (or Requesting Shareholders). Within [***] after receipt of a Demand, the Company shall give written notice of such Demand to any other Person that is a Shareholder on the date a Demand is
delivered to the Company. Subject to Section 4.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion
therein. Such written request shall comply with the requirements of a Demand as set forth in this Section 4.1(b).
(c) Each Shareholder shall be entitled to no more than two Demand Registrations in a calendar year until such time as the Shareholders, collectively, Beneficially Own less than a Registrable Amount.
(d) Demand Registrations shall be on such registration form of the Commission for which the Company is eligible as shall be selected by the Requesting Shareholders whose shares represent a majority of the Registrable Securities that the
Company has been requested to register, including, to the extent permissible, a WKSI Shelf Registration Statement, and shall be reasonably acceptable to the Company.
(e) The Company shall not be obligated to effect any Demand Registration (A) within [***] of a “firm commitment” Underwritten Offering in which (x) all Shareholders were given “piggyback” rights pursuant to Section 4.2 (subject to Section 4.1(f))
and (y) at least [***] of the number of Registrable Securities requested by such Shareholders to be included in such Demand Registration were included) or (B) within [***] of any other Underwritten Offering pursuant to Section 4.3(f). In
addition, the Company shall be entitled to postpone (upon written notice to all Shareholders), for a reasonable period of time not to exceed [***] in succession (but no more than twice, or for more than [***] in the aggregate, in any period of
[***]), the filing or the effectiveness of a registration statement for any Demand Registration if the Board of Directors determines in good faith and in its reasonable judgment that it is required to disclose in the registration statement relating
to such Demand Registration any material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration
statement for a Demand Registration, (i) the holders of a majority of Registrable Securities held by the Requesting Shareholder(s) shall have the right to withdraw such Demand in accordance with Section 4.4 and (ii) the Company shall not
file or cause the effectiveness of any other registration statement for its own account or on behalf of any other Shareholders.
(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Shareholders participating in such Demand Registration that hold a majority of the Registrable
Securities included in such Demand Registration. If, in connection with a Demand Registration that is an
Underwritten Offering, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized
investment bank engaged in connection with such Demand Registration) advises the Company, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be registered
in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company
is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by
the Shareholders, which, in the opinion of the underwriter, can be sold without adversely affecting the marketability of the offering, pro rata among such Shareholders requesting such Demand Registration on the basis of the number of such securities
held by such Shareholders; (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other
securities requested to be included or such other method determined by the Company.
(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith shall be selected by
the Shareholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration; provided that such underwriter shall be reasonably acceptable to the Company.
Section 4.2 Piggyback
Registrations.
(a) Subject to the terms and conditions hereof, whenever the Company (i) proposes to register any Equity Securities of the Company under the Securities Act (other than a registration by the Company (x) on a registration
statement on Form F-4 or S-4, as applicable, (y) on a registration statement on Form S-8 (or, in any of the cases of (x) or (y), on any successor forms thereto), or (z) pursuant to Section 4.1) or (ii) proposes to effect an Underwritten
Offering of its own securities pursuant to an effective Shelf Registration Statement (other than an Underwritten Offering pursuant to Section 4.1 or Section 4.3) (each, a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give the Shareholders prompt written notice thereof (but not less than [***] Business Days prior to the filing by the Company with the Commission of any
registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify, at a minimum, the number and type of Equity Securities of the Company proposed to be registered, the
proposed date of filing of such registration statement with the Commission, the proposed means of distribution and the proposed managing underwriter or underwriters (if any and if known). Upon the written request of any Person that on the date of
such Piggyback Notice is a Shareholder, given within (A) [***] Business Days, in the case of any Block Trade Offering, or (B) [***] Business Days, in the case of any other offering, after such Piggyback Notice is received by such Person (any such
Person, a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then intended to be disposed of by such Piggyback Seller), the Company, subject to the terms and
conditions of this Agreement, shall use its commercially reasonable efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has
received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Equity
Securities of the Company being sold in such Piggyback Registration.
(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration is not an Underwritten Offering, a nationally recognized investment bank selected by Shareholders holding a
majority of the Registrable Securities included in such Piggyback Registration, reasonably acceptable to the Company, and whose fees and expenses shall be borne solely by the Company) advises the Company in writing that, in its opinion, the
inclusion of all the Equity Securities of the Company sought to be included in such Piggyback Registration by (i) the Company, (ii) others who have sought to have Equity Securities of the Company registered in such Piggyback Registration pursuant
to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the
Piggyback Sellers and (iv) any other proposed sellers of Equity Securities of the Company (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the marketability of
the Equity Securities of the Company sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such Equity Securities of the Company as the Company is so
advised by such underwriter or investment bank can be sold without such an effect, as follows and in the following order of priority:
(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of Equity Securities of the Company to be sold by the Company as the Company, in its reasonable
judgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers and securities sought to be registered by Other Demanding Sellers (if any), pro rata
on the basis of the number of Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) held by such Piggyback Sellers and Other Demanding Sellers and (C) third, other Equity Securities of the Company held by any Other
Proposed Sellers; or
(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of Equity Securities of the Company sought to be registered by each Other Demanding Seller
and the Piggyback Sellers (if any), pro rata in proportion to the number of Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) held by all such Other Demanding Sellers and Piggyback Sellers and (B) second, other
Equity Securities of the Company held by any Other Proposed Sellers or to be sold by the Company as determined by the Company and with such priorities among them as may from time to time be determined or agreed to by the Company.
(c) In connection with any Underwritten Offering under this Section 4.2 for the Company’s account, the Company shall not be required to include a holder’s Registrable Securities in the Underwritten Offering unless such holder accepts
the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company; provided, that any applicable underwriting agreement includes only customary terms and conditions.
(d) If, at any time after giving written notice of its intention to register any of its Equity Securities of the Company as set forth in this Section 4.2 and prior to the time the registration statement filed in connection with such
Piggyback Registration is declared effective, the Company shall determine for any reason not to register such Equity Securities of the Company, the Company may, at its election, give written notice of such determination to each Shareholder and
thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration (but not from its obligation to pay the Registration Expenses in connection
therewith as provided herein); provided, that Shareholders may continue the registration as a Demand Registration pursuant to the terms of Section 4.1 or a Shelf Underwritten Offering pursuant to the terms of Section 4.3.
Section 4.3 Shelf
Registration.
(a) At any time after the expiration of the Lockup Period (or such earlier date as would permit the Company to cause any filings required hereunder to be filed on such date), subject to Section 4.3(e) and subject to
the Company’s eligibility to use a Form F-3, any Shareholder may, by written notice delivered to the Company (the “Shelf Notice”), require the Company to file as promptly as practicable (but no later
than [***] after the date the Shelf Notice is delivered), and to use commercially reasonable efforts to cause to be declared effective by the Commission at the earliest possible date permitted under the rules and regulations of the Commission
(but no later than [***] after such filing date), a Form F-3 (which shall be a WKSI Shelf Registration Statement at any time the Company is eligible), providing for an offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act (a “Shelf Registration Statement”) relating to the offer and sale, from time to time, of the number of Registrable Securities designated by such Shareholder in the Shelf Notice (which, if
the Company is a WKSI at the time of the Shelf Notice, may be an unspecified number of Registrable Securities) owned by such Shareholder, as the case may be, and any other Person that at the time of the Shelf Notice meets the definition of a
Shareholder who elects to participate therein as provided in Section 4.3(c).
(b) Each Shareholder shall be entitled to require the Company to file no more than three Shelf Registration Statements until such time as the Shareholders, collectively, Beneficially Own less than a Registrable Amount.
(c) Within [***] Business Days after receipt of a Shelf Notice pursuant to Section 4.3(a), the Company will deliver written notice thereof to each Shareholder. Each Shareholder may elect to participate in the Shelf Registration
Statement by delivering to the Company a written request to so participate within [***] Business Days after receipt of such written notice.
(d) Subject to Section 4.3(e), following the date that the Shelf Registration Statement is declared effective by the Commission, the Company will use commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective until the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold thereunder in accordance with the plan and method of distribution disclosed in the prospectus
included in the Shelf Registration Statement, or otherwise (the “Shelf Registration Effectiveness Period”).
(e) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled to postpone (by providing written notice to the Shareholders who elected to participate in the Shelf Registration
Statement), for a reasonable period of time not to exceed [***] in succession (but no more than twice, or for more than [***] in the aggregate in any [***] period) (a “Suspension Period”), the use of
the prospectus for sales of Registrable Securities under the Shelf Registration Statement if the Board of Directors determines in good faith and in its reasonable judgment that it is required to disclose in the Shelf Registration Statement any
material, non-public information that the Company has a bona fide business purpose for preserving as confidential. Immediately upon receipt of such notice, the Shareholders covered by the Shelf Registration Statement shall suspend the use of the
prospectus until the requisite changes to the prospectus have been made as required below. Any Suspension Period shall terminate at such time as the public disclosure of such information is made. After the expiration of any Suspension Period and
without any further request from a Shareholder, the Company shall as promptly as practicable prepare a post-effective amendment or supplement to the Shelf Registration Statement or the prospectus, or any document incorporated therein by
reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the prospectus will not include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) At any time, and from time-to-time, during the Shelf Registration Effectiveness Period (except during a Suspension Period), any Shareholder may notify the Company of their intent to sell Registrable Securities covered by
the Shelf Registration Statement (in whole or in part) in an Underwritten Offering (a “Shelf Underwritten Offering”); provided that the Company shall not be obligated to participate in more than four
underwritten offerings during any [***] period. Such notice shall specify (x) the aggregate number of Registrable Securities requested to be registered in such Shelf Underwritten Offering and (y) the identity of the Shareholder(s) requesting such
Shelf Underwritten Offering. Upon receipt by the Company of such notice, the Company shall promptly comply with the applicable provisions of this Agreement, including those provisions of Section 4.5 relating to the Company’s obligation to
make filings with the Commission, assist in the preparation and filing with the Commission of prospectus supplements and amendments to the Shelf Registration Statement, participate in “road shows,” agree to customary “lock-up” agreements with
respect to the Company’s securities and obtain “comfort” letters, and the Company shall take such other actions as necessary or appropriate to permit the consummation of such Shelf Underwritten Offering as promptly as practicable. Each Shelf
Underwritten Offering shall be for the sale of a number of Registrable Securities equal to or greater than the Registrable Amount. In any Shelf Underwritten Offering, the Shareholders participating in such Shelf Underwritten Offering that hold a
majority of the Registrable Securities included in such Shelf Underwritten Offering shall select the investment bank(s) and managers that will serve as lead or co-managing underwriters with respect to the offering of such Registrable Securities,
which shall be reasonably acceptable to the Company.
Section 4.4 Withdrawal
Rights. Any Shareholder having notified or directed the Company to include any or all of its Registrable Securities in a registration statement under the
Securities Act shall have the right to withdraw any such notice or direction with respect to any or all of the Registrable Securities designated by it for
registration by giving written notice to such effect to the Company prior to the effective date of such registration statement. In the event of any such withdrawal, the Company shall not include such Registrable Securities in the applicable
registration and such Registrable Securities shall continue to be Registrable Securities for all purposes of this Agreement. No such withdrawal shall affect the obligations of the Company with respect to the Registrable Securities not so withdrawn;
provided, however, that in the case of a Demand Registration, if such withdrawal shall reduce the number of Registrable Securities sought to be included in such registration below the Registrable Amount, then the Company shall as promptly as
practicable give each holder of Registrable Securities sought to be registered notice to such effect and, within [***] following the mailing of such notice, such holder(s) of Registrable Securities still seeking registration shall, by written notice
to the Company, either (a) elect to register additional Registrable Securities which, when taken together with elections to register Registrable Securities by such Shareholder(s) and their Permitted Transferees, satisfy the Registrable Amount or (b)
elect that such registration statement not be filed (or, if theretofore filed, be withdrawn). During such [***] period, the Company shall not file such registration statement if not theretofore filed or, if such registration statement has been
theretofore filed, the Company shall not seek, and shall use commercially reasonable efforts to prevent, the effectiveness thereof.
Section 4.5 Registration
Procedures.
(a) If and whenever the Company is required to use commercially reasonable efforts to effect the registration of any Registrable Securities under the Securities Act or an Underwritten Offering as provided in Section 4.1, Section 4.2
and Section 4.3, the Company shall as promptly as practicable (in each case, to the extent applicable):
(i) prepare and file with the Commission a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules
and regulations of the Commission, and thereafter use commercially reasonable efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any
registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments
thereto, the Company will (A) furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents
proposed to be filed, (B) provide each such Selling Holder and their counsel the opportunity to object to any information pertaining to such Selling Holder or its plan of distribution that is contained in the registration statement (it being
understood that each Selling Holder and counsel to such Selling Holder will conduct their review and provide any comments promptly) and (C) make any changes reasonably requested by such Selling Holder or their counsel with respect to such
information;
(ii) prepare and file with the Commission such amendments (including post-effective amendments) and supplements and “stickers” to such registration statement and the prospectus used in connection therewith and any
Filings incorporated by
reference therein as may be necessary to keep such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of (x) such time as all of such securities have been disposed of in accordance with the intended methods of
disposition by the Selling Holder(s) set forth in such registration statement or (y) (i) in the case of a Demand Registration pursuant to Section 4.1, the expiration of [***] after such registration statement becomes effective or (ii) in the
case of a Piggyback Registration pursuant to Section 4.2, the expiration of [***] after such registration statement becomes effective or (iii) in the case of a Shelf Registration Statement pursuant to Section 4.3, the last day of the
Shelf Registration Effectiveness Period;
(iii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement
thereto (in each case including all exhibits or documents incorporated by reference therein), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, may
reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Holder;
(iv) use commercially reasonable efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling
Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or to file a general consent to service of process in any such jurisdiction;
(v) use best efforts to cause such Registrable Securities to be listed on each securities exchange, interdealer quotation system or other market on which similar securities issued by the Company are then listed and, if
no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on The Nasdaq Stock Market or the New York Stock Exchange;
(vi) use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be
necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;
(vii) in connection with an Underwritten Offering, obtain for each Selling Holder and underwriter:
(1) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Selling Holder or
underwriters, and
(2) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon
procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any
Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);
(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or
representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company
(collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors
and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or
omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii)
if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) either (A) the Company has requested and
been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are
confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to
enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:
(1) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect
to the registration statement or any post-effective amendment thereto, when the same has become effective;
(2) any request by the Commission or any other Governmental Authority for amendments or supplements to the registration statement or the prospectus or for additional information;
(3) the issuance by the Commission or any other Governmental Authority of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;
(4) the existence of any conflict between the information contained in any Issuer Free Writing Prospectus and the information contained in the registration statement; and
(5) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation
or threat of any proceeding for such purpose;
(x) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the
prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
and, at the request of any Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(xi) use every reasonable best effort to obtain the withdrawal of any order suspending the effectiveness of such registration statement;
(xii) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to Selling Holders, as promptly as practicable, an earnings statement covering
the period of at least [***], but not more than [***], beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder;
(xiii) use its reasonable best efforts to assist Shareholders who made a request to the Company to provide for a third party “market maker” for the Ordinary
Shares or American Depositary Shares; provided, however, that the Company shall not be required to serve as
such “market maker”;
(xiv) cooperate with any Selling Holder and any underwriter and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required
under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling
Holder may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates as necessary or appropriate;
(xv) cause appropriate officers of the Company to prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, and at other meetings organized by the underwriters, take
other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use their reasonable best efforts to cooperate (as reasonably requested by the Selling Holders and the underwriters) in the offering,
marketing or selling of the Registrable Securities;
(xvi) cause appropriate officers of the Company and representatives of the Company’s independent registered public accountants to participate in any due diligence discussions reasonably requested by any Selling Holder or
any underwriter;
(xvii) if requested by any underwriter, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Equity
Securities of the Company;
(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as
such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;
(xix) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and
regulations of the FINRA;
(xx) otherwise use reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;
(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and all reporting requirements under the rules and regulations of the Exchange Act; and
(xxii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxi) above to
prepare for and facilitate any “over-night deal,” Block Trade Offering or other proposed sale of Registrable
Securities over a limited timeframe.
The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each
Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.
(b) Without limiting any of the foregoing, in the event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters
containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to
offerings of common stock for the account of, or on behalf of, such issuers. No Selling Holder shall be required to make any representations, warranties, indemnities or agreements with the Company or the underwriters other than the representations,
warranties, indemnities and agreements regarding such Selling Holder, its ownership of the Registrable Securities being registered on its behalf, its intended method of distribution and any other representations, warranties, indemnities and
agreements required by law.
(c) In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), to the extent permitted under applicable
law and subject to any requirements of the Depositary, unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated
form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.
(d) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4.5(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s
disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 4.5(a)(ix)
and, if so directed by the Company, deliver to the Company, at the Company’s expense, all copies, other than permanent file copies, of the prospectus relating to such Registrable Securities in such Selling Holder’s possession at the time of receipt
of such notice. In the event the Company shall give such notice, any applicable period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from the date
of giving of a notice regarding the happening of an event of the kind described in Section 4.5(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been
filed with the Commission.
Section 4.6 Registration
Expenses.
(a) All expenses incident to the Company’s performance of, or compliance with, its obligations under this Agreement including (i)(A) all registration and filing fees, all fees and expenses of compliance with securities and
“blue sky” laws, (B) all fees and expenses associated with filings required to be made with FINRA (including, if applicable, the fees and expenses of any “qualified independent underwriter” as such term is defined in FINRA Rule 5121(f)(12)), (C)
all fees and expenses of compliance with securities and “blue sky” laws, (D) all printing (including expenses of printing certificates, if any, for the Registrable Securities in a form eligible for deposit with The Depository Trust Company and of
printing prospectuses and Issuer Free Writing Prospectuses if the printing of such prospectuses is requested by a holder of Registrable Securities) and copying expenses, (E) all messenger and delivery expenses, (F) all fees and expenses of the
Company’s independent certified public accountants and counsel (including with respect to “comfort” letters, “agreed-upon procedures” letters and opinions), (G) fees and expenses of one firm of counsel to the Shareholders selling in such
registration (which firm shall be selected by the Shareholders selling in such registration that hold a majority of the Registrable Securities included in such registration), which fees and expenses shall not exceed [***], (H) except as provided
in clause (ii) below, the fees and expenses (including underwriting discounts and commissions and transfer taxes) of every nationally recognized investment bank engaged in connection with a Demand Registration or a Piggyback Registration that is
not an Underwritten Offering (collectively, the “Registration Expenses”) and (ii) any expenses described in clauses (i)(A) through (H) above incurred in connection with the marketing and sale of
Registrable Securities shall be borne by the Company, regardless of whether a registration is effected, marketing is commenced or sale is made. The Company will pay its internal expenses (including all salaries and expenses of its officers and
employees performing legal or accounting duties, the expense of any annual audit and the expense of any liability insurance) and the expenses and fees for listing the securities to be registered on each securities exchange and included in each
established over-the-counter market on which similar securities issued by the Company are then listed or traded.
(b) Each Selling Holder shall pay its portion of all underwriting discounts and commissions and transfer taxes, if any, relating to the sale of such Selling Holder’s Registrable Securities pursuant to any registration.
ARTICLE V
RIGHT OF FIRST OFFER; ANTI-DILUTION
Section 5.1 Indebtedness.
(a) Prior to the incurrence of any Indebtedness by the Company or any of its Subsidiaries, the Company shall deliver to CFIP a written notice (a “Debt ROFO Notice”) of its intention, describing in reasonable detail the transaction that
such Indebtedness is intended to finance. CFIP shall have a period of [***] after delivery of the Debt ROFO Notice in which to deliver either (i) a written proposal (an “Interested Notice”) to the Company, stating that CFIP or any of its
Affiliates would like to have the Company or its Subsidiary consider obtaining such Indebtedness from CFIP or any of its Affiliates and setting forth the proposed terms of such Indebtedness in reasonable detail, or (ii) a written notice of its
rejection of the opportunity to provide such Indebtedness. Neither CFIP nor any of its Affiliates shall be under any obligation to
provide any such Indebtedness or deliver any Interested Notice, and if no Interested Notice has been provided within such [***] period, then
CFIP will be deemed to have rejected the opportunity for CFIP or its Affiliates to provide such Indebtedness.
(b) If the Company accepts the offer set forth in the Interested Notice, the Company will negotiate in good faith with CFIP and its Affiliates the definitive documentation for such Indebtedness during the [***] following the date of the
Interested Notice (which [***] period may be extended for an additional [***] by either the Company or CFIP if the parties are actively negotiating such definitive documentation).
(c) If (x) CFIP rejects or is deemed to have rejected the opportunity to provide such Indebtedness, (y) the Company declines to accept the offer set forth in the Interested Notice or (z) the [***] period (or [***] period to the extent the
initial [***] period is extended pursuant to Section 5.1(b)) to finalize the definitive documentation for such Indebtedness has expired, then the Company or its Subsidiary shall have the right to seek a proposal from any other Person to
provide such Indebtedness and may consummate such Indebtedness transaction without any further notice to or consent from CFIP; provided, however, that in the case of (y) or (z), if the proposed terms of such Indebtedness from such other Person,
taken as a whole, are not materially more advantageous to the Company or its Subsidiary (as evidenced by a written term sheet or similar instrument (an “Alternate Proposal Notice”)) than the terms set forth in the Interested Notice, taken as
a whole (as reasonably determined by the Company), then if the Company or its Subsidiary plans to consummate such transaction, the Company shall deliver a copy of the Alternate Proposal Notice to CFIP, and CFIP shall have a period of [***] after
receipt of such Alternate Proposal Notice to accept or reject the opportunity to provide such Indebtedness on the terms set forth in the Alternate Proposal Notice.
(d) If, prior to the end of such [***] period, CFIP delivers written notice (the “Alternate Proposal Acceptance Notice”) to the Company accepting the opportunity to provide such Indebtedness on the terms set forth in the Alternate
Proposal Notice, then the Company will negotiate in good faith with CFIP and its Affiliates the definitive documentation for such Indebtedness during the [***] following the date of the Alternate Proposal Acceptance Notice (which [***] period may
be extended for an additional [***] by either the Company or CFIP if the parties are actively negotiating such definitive documentation).
(e) If (x) CFIP rejects the opportunity to provide such Indebtedness on such terms, (y) CFIP fails to respond to such Alternate Proposal Notice in writing prior to the end of such [***] period or (z) the [***] period (or [***] period to the
extent the initial [***] period is extended pursuant to Section 5.1(c) or Section 5.1(d)) to finalize the definitive documentation for such Indebtedness has expired, then the Company or its Subsidiary shall have the right to obtain
such Indebtedness from such other Person on the terms set forth in the Alternate Proposal Notice without any further notice to or consent from CFIP.
(f) CFIP acknowledges and agrees that (a) prior to finalizing the definitive documentation between the Company or any of its Subsidiaries, on the one hand, and CFIP or any of its Affiliates, on the other hand, or obtaining any Indebtedness
thereunder, the Company shall offer Tolefi SA (“Tolefi”) the opportunity to provide a portion (calculated by reference to the Ownership Percentage of Tolefi) of such Indebtedness and (b) to the extent that Tolefi
accepts the opportunity to provide such Indebtedness, the ability of the Company and its Subsidiaries to obtain Indebtedness from CFIP and its
Affiliates pursuant to this Section 5.1 may be limited accordingly.
Section 5.2 Anti-Dilution.
(a) Until such time as the Fortress Shareholders own in the aggregate less than 10% of the then outstanding Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) for a period of more than [***], if the Company or
any of its Subsidiaries proposes to issue or sell any new or existing Equity Securities to any Person other than the Fortress Shareholders (other than on a pro rata basis to all shareholders of the Company), then it shall first offer such Equity
Securities to the Fortress Shareholders.
(b) The Company shall use its best efforts to deliver to each Fortress Shareholder, at least [***] Business Days prior to the consummation of any such offer of Equity Securities, a written notice (an “Anti-Dilution Notice”) of such
intention to offer such Equity Securities, describing in reasonable detail the type of Equity Securities to be offered and the price and terms, if any, upon which the Company or its Subsidiary proposes to offer such Equity Securities.
(c) Each Fortress Shareholder shall have the right, by written notice delivered to the Company as soon as practicable (in particular taking into account the structure of such offering), and in any event within a period of [***] Business Days,
after delivery of such Anti-Dilution Notice, to invest in such offering (or, at the option of the Company, a concurrent offering) on substantially the same terms as the other investors in such offering and at a price per share or security equal to
the price per share or security paid by the other investors in such offering (provided, that, in the event any of such consideration is non-cash consideration, at the election of such Fortress Shareholder,
such Fortress Shareholder may pay cash equal to the value of such non-cash consideration), for an aggregate amount of up to (x) the Ownership Percentage of such Fortress Shareholder prior to such offering multiplied (and rounded up afterwards) by
(y) the aggregate gross consideration to be received by the Company or its Subsidiary in such offering.
(d) Notwithstanding the foregoing, no Fortress Shareholder shall have any right to invest in any offering by the Company of Equity Securities issued (i) to another entity or its owners in connection with a business acquisition or combination
or asset acquisition transaction, (ii) to current or future employees, consultants, directors and/or officers of the Company or its Affiliates pursuant to an equity-based incentive plan or employee share purchase plan approved by the Board of
Directors, (iii) as a dividend or distribution on any outstanding Equity Securities of the Company (so long as each Shareholder receives its pro rata portion of such distribution) or (iv) upon exercise, vesting or conversion of outstanding Equity
Securities of the Company in accordance with their terms.
(e) The Fortress Shareholders will be entitled to reduce their participation in the relevant offering so as to avoid that the exercise of anti-dilution protection results in any of the Fortress Shareholders or any of their affiliates within
the meaning of the Belgian Takeover
Decree being obliged to make a mandatory takeover bid on the voting securities and the securities granting access to voting rights issued by the
Company.
(f) This Section 5.2 shall expire on the [***] of the date hereof.
ARTICLE VI
OTHER COMPANY OBLIGATIONS
Section 6.1 Protective
Provisions.
(a) The parties hereto agree that the Company and its Subsidiaries shall have the right to terminate their intellectual property and license, sub-license or contribute their intellectual property to third parties other than the Fortress
Shareholders (any such transaction, an “IP Transaction”) in the ordinary course of business pursuant to any research and development, collaboration, consortium, joint development, distribution, service, joint marketing, co-branding or
co-distribution agreement or other similar agreements or arrangements entered into in the ordinary course of business and in a manner consistent with market practice for the industry of the Company; provided that, until such time as the Fortress
Shareholders own in the aggregate less than 10% of the then outstanding Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) for more than [***], any Dartmouth IP Transaction shall be subject to approval by the Board of
Directors, including the vote of at least one Fortress Designee.
(b) Until such time as the Fortress Shareholders own in the aggregate less than 10% of the then outstanding Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) for a period of more than [***], the Company and its
Subsidiaries shall not, directly or indirectly, without the consent of each Shareholder, (i) incur or issue any indebtedness that would encumber any intellectual property of the Company or any of its Subsidiaries, (ii) issue any Equity Securities
of the Company that are senior to the Ordinary Shares with respect to the right to receive (x) dividends or other distributions to shareholders or (y) proceeds in the event of the liquidation, dissolution or winding-up of the Company (including for
such purposes in connection with any change of control transaction), (iii) alter, amend or change the rights, preference or privileges of the Ordinary Shares, including in connection with any reclassification, recapitalization, reorganization or
restructuring, (iv) recommend, directly or indirectly, or take any other action to (A) increase or decrease the size of the Board of Directors or (B) co-opt or appoint to the Board of Directors in place of a Fortress Designee any Person other than
a Fortress Designee, (v) make any proposal to amend, repeal or otherwise modify any provision of the Company’s articles of association that would be reasonably expected to adversely affect the interests of any Fortress Shareholder or (vi) make any
proposal to modify the rights of any Equity Securities of the Company in a manner adverse to any Shareholder.
Section 6.2 Replacement
Confirmation Proposals. In the event that any proposal pursuant to Section 3.2 fails to receive shareholder approval at a general shareholders’ meeting of the Company), other than as a result of the failure by CFIP, UKF or any of
their respective Affiliates to vote all their voting securities in favor of such proposal pursuant to Section 3.2,
then, to the extent permitted by applicable law, without limiting any other remedies that may be available, the following rules shall apply:
(a) The Board of Directors shall take all actions necessary to include any such unapproved proposal pursuant to Section 3.2 on the agenda of an extraordinary general meeting to be held as soon as possible following the date of the
general shareholders’ meeting at which such proposal failed to receive shareholder approval. If the attendance quorum for any such unapproved proposal pursuant to Section 3.2 (if any) is not achieved at such extraordinary general meeting of
the shareholders, the Board of Directors shall convene a second extraordinary general meeting of the shareholders, to be held as soon as practicable and in any event no later than [***] following such extraordinary general shareholders’ meeting,
the agenda of which shall include the relevant proposal pursuant to Section 3.2, at which no attendance quorum will apply for the relevant proposal pursuant to Section 3.2. The Board of Directors shall support and defend such
unapproved proposal pursuant to Section 3.2, recommend that the Company’s shareholders approve such unapproved proposal pursuant to Section 3.2, and otherwise use best efforts to cause such unapproved proposal pursuant to Section
3.2 to be approved.
(b) The Board of Directors shall continue to re-submit proposals pursuant to Section 6.2(a) to subsequent annual general meetings of the shareholders of the Company or extraordinary general meetings of the shareholders held at the
same time, until such proposals are approved by the Company’s shareholders. If the attendance quorum for any such proposal (if any) is not achieved at such extraordinary general meeting of the shareholders, the Board of Directors shall convene a
second extraordinary general meeting of the shareholders, to be held as soon as practicable and in any event no later than [***] following such extraordinary general shareholders’ meeting, the agenda of which shall include the relevant proposals,
at which no attendance quorum will apply for the relevant proposals.
Section 6.3 Regulatory
Limitation.
(a) The Company shall not, without the express written consent of each Fortress Shareholder, directly or indirectly (including through affiliates or intermediaries within the meaning of the Belgian Takeover Decree or parties Acting in Concert
with the Company or such affiliates or intermediaries) acquire any voting securities of the Company (for clarity, including any Ordinary Shares or American Depositary Shares), or take any other action if, after giving effect to such acquisition or
the taking of such other action, any Fortress Shareholder or any of their respective affiliates within the meaning of the Belgian Takeover Decree would be obligated to launch a public takeover bid on securities of the Company.
(b) The Company shall, within [***] Business Days of any request from any Shareholder, provide such Shareholder with notice of (i) the number of issued and outstanding voting securities of the Company on a non-diluted basis and (ii) the
number of voting securities of the Company that may be issued upon exercise of any options, warrants, convertible securities or other rights to acquire, directly or indirectly, any new voting securities of the Company by any Person (other than such
Shareholder or any of their respective affiliates within the meaning of the Belgian Takeover Decree).
Section 6.4 Foreign
Private Issuer Status. The Company shall notify each Shareholder promptly following the date that the Company ceases to be a Foreign Private Issuer.
Section 6.5 Use
of Proceeds. The Company shall use the proceeds from the issuance of the Securities (as defined in the Subscription Agreement) for working capital and general corporate purposes; provided, that (a) the Company shall use (i) at least [***] of
the proceeds to pursue strategic patent prosecution activities, as agreed between UKF and the Company within [***] following the date hereof and (ii) at least [***] for payment of expenses (including legal expenses) incurred by the Company in
connection with patent activities prior to the date hereof and (b) the proceeds shall not be used for any declaration or payment of dividends or distributions to the Company’s shareholders.
ARTICLE VII
TAX MATTERS
Section 7.1 U.S.
Federal Income Tax Reporting.
(a) For each taxable year of the Company in which any Shareholder (or, to the extent any Shareholder is a partnership or disregarded entity for U.S. federal income tax purposes, any direct or indirect owner of such Shareholder) that is a
“United States person” (as defined in section 7701(a)(30) of the Code) (a “U.S. Shareholder”) holds Equity Securities of the Company, the Company shall determine whether the Company or any of its Subsidiaries was a PFIC for such taxable
year. If the Company determines that it or any of its Subsidiaries was a PFIC for such taxable year, the Company shall (a) no later than [***] following the date of the closing of the Company’s taxable year, notify each U.S. Shareholder of such
determination and (b) provide such U.S. Shareholder with adequate information in order for such U.S. Shareholder, in consultation with the Company, to complete its U.S. Internal Revenue Service Form 8621 with respect to the Company or such
Subsidiary; provided that if such U.S. Shareholder intends to elect to treat the Company and/or any Subsidiary as a QEF, such U.S. Shareholder shall notify the Company of such intent, and the Company shall provide such U.S. Shareholder (at such
U.S. Shareholder’s expense) with “PFIC Annual Information Statements” (within the meaning of Treasury Regulations Section 1.1295-1(g)(1). The Company shall also provide any Shareholder with any information reasonably requested by the
Shareholder regarding the Company’s income, gain, loss, deductions or credits.
(b) Until such time as the Fortress Shareholders own in the aggregate (after applying section 958 of the Code) less than 10% of the then outstanding Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) for more
than [***], the Company shall reasonably cooperate with the U.S. Shareholders to determine whether the Company or any of its Subsidiaries is a CFC for such taxable year with respect to any U.S. Shareholder and, if any U.S. Shareholder determines
that the Company or any of its Subsidiaries was a CFC for such taxable year with respect to such U.S. Shareholder, (a) such U.S. Shareholder shall, no later than [***] following the date of the closing of the Company’s taxable year, notify the
Company of such determination and (b) the Company shall provide such U.S. Shareholder with adequate information in order for such U.S. Shareholder, in consultation with the Company, to reasonably determine any amounts required to be included
pursuant to sections
951(a) and 951A of the Code in the gross income of such U.S. Shareholder as defined in section 951(b) of the Code and to comply with such U.S.
Shareholder’s filing obligations under the Code (including, but not limited to, completing the U.S. Internal Revenue Service Form 5471 with respect to the Company or any such Subsidiaries), all of such information to be issued in an annual statement.
Section 7.2 Cooperation.
(a) Each Shareholder shall be entitled to make any deductions, withholding or similar required by law in respect of payments made by such Shareholder to the Company under this Agreement. Notwithstanding the foregoing, the Company and each
Shareholder agree to reasonably cooperate with one another and use reasonable efforts to mitigate or reduce tax withholding or similar obligations in respect of payments made by such Shareholder to the Company under this Agreement where an
exemption or reduction of such withholding or similar obligation is available under the applicable legislation, including double tax treaties. Without limiting the generality of the foregoing, the Company shall provide each Shareholder any tax
forms and other information that may be reasonably requested by such Shareholder in order for it to prepare its tax filings or comply with any applicable law or requirement in respect of tax (including the disclosure of information or reporting to
a tax authority). The Company shall provide each Shareholder with reasonable assistance to enable the recovery, as permitted by applicable law, of withholding taxes, value added taxes, or similar obligations resulting from payments made under this
Agreement, such recovery to be for the benefit of the Shareholder bearing such withholding tax or value added tax.
(b) Except as would have an adverse effect on the Company and subject to the sole consent of the Company, such consent not to be unreasonably withheld, the Company agrees to reasonably cooperate with each U.S. Shareholder and use reasonable
efforts to avoid or reduce any amounts required to be included pursuant to sections 951(a) and 951A of the Code in the gross income of any “United States shareholder” (as defined in section 951(b) of the Code) (including, without limitation, by
filing any elections reasonably requested by such Shareholder under U.S. Treasury Regulations section 301.7701-3 with respect to any Subsidiary).
ARTICLE VIII
INDEMNIFICATION
Section 8.1 General Indemnification. The Company agrees to indemnify and hold harmless each Shareholder and its Affiliates, and their respective officers, directors, employees, members, managers, partners, designees and agents
(each, an “Indemnified Person”), against any and all losses, claims, damages, liabilities and expenses (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses) (collectively, “Losses”), in each case, based on, arising out of, resulting from or in connection with any claim, action, cause of action, suit, proceeding or investigation, whether civil, criminal, administrative, investigative or other
(collectively, “Actions”), based on, arising out of, pertaining to or in connection with such Indemnified Person’s participation in the operation or conduct of the business of, including contracts
entered into by, the Company or any of its Subsidiaries, on or after the date hereof
(except, in the case of any Indemnified Person that is a director of the Company, to the extent prohibited under Belgian law); provided that for purposes of this
Section 8.1, “Losses” shall not include losses arising from a decrease in the trading price of the Company’s Ordinary Shares (including Ordinary Shares in the form of American Depositary Shares). The indemnity agreement contained in this Section 8.1
shall be applicable whether or not any Action or the facts or transactions giving rise to such Action arose prior to, on or subsequent to the date of this Agreement.
Section 8.2 Registration
Statement Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each Selling Holder, its Affiliates and their respective officers, directors, employees, managers, members, partners, designees and agents from and
against all Losses caused by, resulting from or relating to any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, any Issuer Free Writing Prospectus, any prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or any omission (or alleged omission) of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading, except insofar as the same are caused by any information furnished in writing to the Company by such Selling Holder expressly for use therein. In connection with an Underwritten Offering and without limiting any of the Company’s other
obligations under this Agreement, the Company shall also indemnify such underwriters, their officers, directors, employees and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act) such underwriters or such other indemnified Person to the same extent as provided above with respect to the indemnification (and exceptions thereto) of the holders of Registrable Securities being sold. Reimbursements payable pursuant
to the indemnification contemplated by this Section 8.2(a) will be made by periodic payments during the course of any investigation or defense, as and when bills are received or expenses incurred.
(b) In connection with any registration statement in which a holder of Registrable Securities is participating, each Selling Holder will furnish to the Company in writing information regarding such Selling Holder’s ownership of Registrable
Securities and its intended method of distribution thereof and, to the extent permitted by law, shall, severally and not jointly, indemnify the Company, its directors, officers, employees and agents and each Person who controls (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act) the Company or such other indemnified Person against all Losses caused by any untrue statement of material fact contained in the registration statement, any Issuer Free Writing
Prospectus, any prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, but only to the extent that such untrue statement or omission is caused by and contained in such information so furnished in writing by such Selling Holder expressly for use therein; provided, however, that
each Selling Holder’s obligation to indemnify the Company hereunder shall, to the extent more than one Selling Holder is subject to the same indemnification obligation, be apportioned between each Selling Holder based upon the net amount received
by each Selling Holder from the sale of Registrable Securities, as compared to the total net amount received by all of the Selling Holders of Registrable Securities sold pursuant
to such registration statement. Notwithstanding the foregoing, no Selling Holder shall be liable to the Company for amounts in excess of the
lesser of (i) such apportionment and (ii) the net amount received by such holder in the offering giving rise to such liability.
Section 8.3 Contribution.
(a) If recovery is not available under the foregoing indemnification provisions for any reason or reasons other than as specified therein, any Person who would otherwise be entitled to indemnification by the terms thereof shall nevertheless
be entitled to contribution with respect to any Losses with respect to which such Person would be entitled to such indemnification but for such reason or reasons. In determining the amount of contribution to which the respective Persons are
entitled, there shall be considered the Persons’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and other equitable
considerations appropriate under the circumstances. It is hereby agreed that it would not necessarily be equitable if the amount of such contribution were determined by pro rata or per capita allocation. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not found guilty of such fraudulent misrepresentation. Notwithstanding the foregoing, no Selling Holder or
transferee thereof shall be required to make a contribution in excess of the net amount received by such holder from its sale of Registrable Securities in connection with the offering that gave rise to the contribution obligation.
Section 8.4 Procedure.
(a) Any Person entitled to indemnification hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided, however, the failure to give such notice shall not release
the indemnifying party from its obligation, except to the extent that the indemnifying party has been materially prejudiced by such failure to provide such notice on a timely basis.
(b) In any case in which any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and, to the extent that it
may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not (so long as it shall continue to have the right to defend, contest, litigate and settle the matter in question in accordance with this paragraph) be liable to such
indemnified party hereunder for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, supervision and monitoring; provided that if (i) such
indemnified party reasonably objects to such assumption on the grounds that there may be defenses available to it which are different from or in addition to the defenses available to such indemnifying party or (ii) the indemnifying party shall have
failed within a reasonable period of time to assume such defense and the indemnified party is or is reasonably likely to be prejudiced by such delay, the indemnified party shall be promptly reimbursed by the indemnifying party for the expenses
incurred in connection with retaining
separate legal counsel. The indemnifying party shall lose its right to defend, contest, litigate and settle a matter if it shall fail to
diligently contest such matter (except to the extent settled in accordance with Section 8.5(a)).
Section 8.5 Other
Matters.
(a) An indemnifying party shall not be liable for any settlement of an Action effected without its consent. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or
threatened Action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such Action.
(b) Any Losses for which an indemnified party is entitled to indemnification or contribution under this Article VIII shall be paid by the indemnifying party to the indemnified party as such Losses are incurred. The indemnity and
contribution agreements contained in this Article VIII shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any indemnified Person, the Company, its directors or officers, or any
person Controlling the Company, and (ii) any termination of this Agreement.
(c) The parties hereto shall, and shall cause their respective Subsidiaries to, cooperate with each other in a reasonable manner with respect to access to unprivileged information and similar matters in connection with any Action. The
provisions of this Article VIII are for the benefit of, and are intended to create third party beneficiary rights in favor of, each of the indemnified parties referred to herein.
(d) Not less than [***] Business Days before the expected filing date of each registration statement pursuant to this Agreement, the Company shall notify each Shareholder who has timely provided the requisite notice hereunder
entitling the Shareholder to register Registrable Securities in such registration statement of the information, documents and instruments from such Shareholder that the Company or any underwriter reasonably requests in connection with such
registration statement, including, but not limited to a questionnaire, custody agreement, power of attorney, lock-up letter and underwriting agreement (the “Requested Information”). If the Company has
not received, on or before the day before the expected filing date, the Requested Information from such Shareholder, the Company may file the Registration Statement without including Registrable Securities of such Shareholder. The failure to so
include in any registration statement the Registrable Securities of a Shareholder (with regard to that registration statement) shall not in and of itself result in any liability on the part of the Company to such Shareholder.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Headings.
The headings in this Agreement are for convenience of reference only and shall not control or effect the meaning or construction of any provisions hereof.
Section 9.2 Entire
Agreement. This Agreement and the Subscription Agreement constitute the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and there are no restrictions, promises, representations,
warranties, covenants, conditions or undertakings with respect to the subject matter hereof, other than those expressly set forth or referred to herein. This Agreement and the Subscription Agreement supersede all prior agreements and understandings
between the parties hereto with respect to the subject matter hereof, including the Original Agreement.
Section 9.3 Further
Actions; Cooperation. Each of the Shareholders agrees to use its reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary,
proper or advisable to give effect to the transactions contemplated by this Agreement.
Section 9.4 Notices.
All notices, requests, consents and other communications hereunder to any party shall be deemed to be sufficient if contained in a written instrument delivered in person or sent by electronic mail, facsimile, nationally recognized overnight courier
or first class registered or certified mail, return receipt requested, postage prepaid, addressed to such party at the address set forth below or such other address as may hereafter be designated on the signature pages of this Agreement or in
writing by such party to the other parties:
If to CFIP, to:
CFIP CLYD LLC
c/o Fortress Investment Group
1345 Avenue of the Americas
Attn: General Counsel – Credit Funds
[***]
Email: [***]
[***]
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, NY 10001
Attn: Michael Schwartz
Email: michael.schwartz@skadden.com
If to UKF, to:
UKF
c/o Fortress Investment Group
1345 Avenue of the Americas
Attn: General Counsel – Credit Funds
[***]
Email: [***]
[***]
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, NY 10001
Attn: Michael Schwartz
Email: michael.schwartz@skadden.com
If to the Company, to:
Celyad Oncology SA
Rue Edouard Belin 2
1435 Mont-Saint-Guibert
Belgium
Attn: Chief Legal Officer
Chief Executive Officer
Email: [***]
[***]
with a copy (which shall not constitute notice) to:
Allen & Overy (Belgium) LLP
Avenue de Tervueren 268
B-1150 Bruxelles
Belgium
Attn: [***]
Email: [***]
If to a Shareholder that is not CFIP or UKF, then to the address set forth in the joinder of such Shareholder provided for in
Section 2.1 hereof.
All such notices, requests, consents and other communications shall be deemed to have been given or made if and when received
(including by overnight courier) by the parties at the above addresses or sent by email, facsimile, with confirmation received, to the email addresses or facsimile numbers specified above (or at such other address or facsimile number for a party as
shall be specified by like notice). Any notice delivered by any party hereto to any other party
hereto shall also be delivered to each other party hereto simultaneously with delivery to the first party receiving such notice.
Section 9.5 Applicable
Law. The substantive laws of the State of New York shall govern the interpretation, validity and performance of the terms of this Agreement, without regard to conflicts of law doctrines.
Section 9.6 Severability.
The provisions of this Agreement are independent of and separable from each other. The invalidity, illegality or unenforceability of one or more of the provisions of this Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement, including any such provisions, in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law. The
parties hereto shall endeavor in good faith negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable
provision, as applicable.
Section 9.7 Successors
and Assigns. Except as otherwise provided herein, all the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective successors and permitted assigns of the parties
hereto. A Shareholder may not assign any of its rights hereunder to any Person other than a Permitted Transferee. Each Permitted Transferee of any Shareholder shall be subject to all of the terms of this Agreement, and by taking and holding such
shares such Person shall be entitled to receive the benefits of and be conclusively deemed to have agreed to be bound by and to comply with all of the terms and provisions of this Agreement; provided, however, no transfer of rights permitted
hereunder shall be binding upon or obligate the Company unless and until (i) if required under Section 2.1 hereof, the Company shall have received written notice of such transfer and the joinder of the transferee provided for in Section 2.1
hereof, and (ii) such transferee can establish Beneficial Ownership or ownership of record of a Registrable Amount (whether individually or together with its Affiliates that are Shareholders or transferees of Shareholders and, if applicable, its
other Permitted Transferees that are Shareholders or transferees of Shareholders). The Company may not assign any of its rights or obligations hereunder without the prior written consent of each of the Shareholders, and any assignment attempted or
effected without obtaining such required consent shall be null and void. Notwithstanding the foregoing, no successor or assignee of the Company shall have any rights granted under this Agreement until such Person shall acknowledge its rights and
obligations hereunder by a signed written statement of such Person’s acceptance of such rights and obligations.
Section 9.8 Amendments.
This Agreement may not be amended, modified or supplemented unless such amendment, modification or supplement is in writing and signed by each of the Shareholders and the Company.
Section 9.9 Waiver.
The failure of a party hereto at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by a party of any condition or of any breach of any term, covenant,
representation or warranty contained in this Agreement shall be effective unless in a writing signed by the party against whom the waiver is to be effective, and no waiver in any one or more
instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of
any other term, covenant, representation or warranty.
Section 9.10 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same Agreement. Counterparts may be exchanged by email or in pdf or other
electronic means without affecting the validity thereof.
Section 9.11 Confidentiality. Except to the extent expressly authorized by this Agreement or otherwise agreed in writing, each party agrees that it will keep confidential and will not publish or otherwise disclose (except as requested or
required pursuant to applicable law, rule (including rules of a securities exchange), regulation or other legal, administrative or governmental process) any information or materials related to the activities contemplated hereunder that is furnished
to such receiving party by or on behalf of a disclosing party pursuant to this Agreement and is identified by the disclosing party as confidential, proprietary or the like or that the receiving party has reason to believe is confidential based upon
its own similar information (collectively, “Confidential Information”); provided that the parties may disclose Confidential Information to their respective affiliates, and to their and their affiliates’ respective directors, officers,
employee, investors, potential investors, financial advisors, attorneys, accountants and consultants. Notwithstanding the foregoing, Confidential Information will not include any information to the extent that it can be established by written
documentation by the receiving party that such information (a) was obtained or was already known by the receiving party or its Affiliates without obligation of confidentiality as a result of disclosure from a third party that the receiving party
did not know was under an obligation of confidentiality to the disclosing party with respect to such information, (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving party
through no act or omission of the receiving party or its Affiliates in breach of this Agreement, (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of
the receiving party or its Affiliates in breach of this Agreement or (d) was independently discovered or developed by the receiving party or its Affiliates (without reference to or use of Confidential Information of the disclosing party).
Section 9.12 Dispute Resolution. The parties recognize that disputes as to the matters set forth in Section 6.1(a) may from time to time arise which relate to a party’s rights and obligations thereunder. It is the objective of the
parties to comply with the procedures set forth in this Section 9.12 to use all reasonable efforts to facilitate the resolution of such disputes in an expedient manner by mutual agreement. The parties agree that they shall use all
reasonable efforts to resolve any dispute, controversy, or claim arising out of or relating to Section 6.1(a), or the breach, termination or validity thereof (each a “Dispute”) by good faith negotiation and discussion. Any party
claiming that a Dispute exists shall deliver a written notice (a “Dispute Notice”) to the other parties, setting forth the nature of the Dispute. Within [***] of receipt of a Dispute Notice, an executive officer of the Company and a
director (or an equivalent or senior position) from Fortress Advisor involved in oversight of the Fortress Shareholders’ investment in the Company shall meet in person or by teleconference (the “Initial Dispute Resolution Meeting”) and use
their reasonable endeavors to resolve the Dispute. If such individuals are unable to resolve the Dispute during the Initial Dispute Resolution Meeting, the Chairman of the
Audit Committee of the Company and a senior member of the investment committee of Fortress Advisor shall meet in person or by teleconference (the “Subsequent
Dispute Resolution Meeting”) promptly after the Initial Dispute Resolution Meeting and use their reasonable endeavors to resolve the Dispute. At any Initial Dispute Resolution Meeting or Subsequent Dispute Resolution Meeting, any party may
submit to the other parties one or more non-binding opinions from third parties on the subject matter of the Dispute, and each party hereby agrees that it shall keep any such opinions confidential. If such individuals are unable to resolve the
Dispute during the Subsequent Dispute Resolution Meeting or if for any reason the Initial Dispute Resolution Meeting or Subsequent Dispute Resolution Meeting does not take place within the period specified, then the parties shall be free to pursue
any rights and remedies available at law, in equity or otherwise. Notwithstanding any provision of this Agreement to the contrary, any party may immediately initiate litigation in any court of competent jurisdiction seeking any remedy at law or in
equity, including the issuance of a preliminary, temporary or permanent injunction, to preserve or enforce its rights under this Agreement.
Section 9.13 Injunctive Relief. Each party hereto acknowledges and agrees that a violation of any of the terms of this Agreement will cause the other parties irreparable injury for which an adequate remedy at law is not available. Therefore,
the parties agree that each party shall be entitled to an injunction, restraining order, specific performance or other equitable relief from any court of competent jurisdiction to enforce the provisions of this Agreement or to restrain any party
from committing any violations of the provisions of this Agreement, without the need to post a bond or prove the inadequacy of monetary damages.
Section 9.14 Submission to Jurisdiction. SUBJECT TO COMPLIANCE WITH SECTION 9.12, ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK LOCATED IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND THE APPELLATE COURTS THEREOF. EACH PARTY HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT THE ADDRESS FOR NOTICES SET FORTH HEREIN. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM
IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY TRIAL WITH RESPECT TO DISPUTES HEREUNDER.
Section 9.15 Recapitalizations, Exchanges, Etc.; New Issuance. The provisions of this Agreement shall apply, to the full extent set forth herein, with respect to Equity Securities of the Company and to any and all Equity Securities of the
Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets, or otherwise) which may be issued in respect of, in exchange for, or in substitution of, such Equity Securities of the Company and shall be
appropriately adjusted for any share dividends, splits, reverse splits, combinations, reclassifications, recapitalizations, reorganizations and the like occurring after the date hereof.
Section 9.16 Termination. Upon the mutual consent of all of the parties hereto or, with respect to each Shareholder, at such earlier time as such Shareholder and its Affiliates and Permitted Transferees ceases to Beneficially Own a Registrable
Amount, the terms of this Agreement shall terminate, and be of no further force and effect; provided, however, that the following shall survive the termination of this Agreement: (i) the provisions of Section 4.2 (which shall terminate, and
be of no further force and effect, with respect to each Shareholder, at such time as such Shareholder and its Affiliates and Permitted Transferees ceases to Beneficially Own a Registrable Amount), Section 4.6, Article VIII, Section 9.5,
Section 9.12, this Section 9.16 and Section 9.17; (ii) the rights with respect to the breach of any provision hereof by the Company and (iii) any registration rights vested or obligations accrued as of the date of any such
termination to the extent, in the case of registration rights so vested, if such Shareholder ceases to meet the definition of a Shareholder under this Agreement subsequent to the vesting of such registration rights as a result of action taken by
the Company.
Section 9.17 No Third Party Beneficiaries. Nothing in this Agreement, whether express or implied, shall be construed to give any Person, other than the parties hereto or their respective successors and permitted assigns, any legal or equitable
right, remedy, claim or benefit under or in respect of this Agreement.
Section 9.18 Rule 144. The Company covenants and agrees that it will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder (or, if it is not
required to file such reports, it will, upon the request of any holder of Registrable Securities, make publicly available other information so long as necessary to permit sales in compliance with Rule 144 under the Securities Act), and it will take
such further reasonable action, to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rule 144 may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission. Upon the reasonable request of any holder of Registrable Securities, the Company will deliver to such holder a
written statement as to whether it has complied with such information and filing requirements.
Section 9.19 Information. The Company covenants and agrees that for so long as the Shareholders, together, have Beneficial Ownership of at least a Registrable Amount, it will provide or cause to be provided to each Shareholder any and all
information about the Company and its operations requested by such Shareholder.
[Remainder of page left blank intentionally]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by their respective officers
thereunto duly as of the date first above written.
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CFIP CLYD (UK) LIMITED
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By:
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CELYAD ONCOLOGY SA
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[Signature Page to Amended and Restated Shareholders’ Rights Agreement]
Schedule A
[***]
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