As filed with the Securities and Exchange Commission
on December 13, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Forward Pharma A/S
(Exact name of registrant as specified in its
charter)
Denmark
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2834
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Not Applicable
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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Østergade 24A, 1
1100 Copenhagen K, Denmark
+45 33 44 42 42
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
CT Corporation System
1015 15th Street, NW
Suite 1000
Washington, DC 20005
(202) 572-3100
(Name, Address, including zip code, and telephone
number, including area code, of agent for service)
Copies of all correspondence to:
Ryan A. Murr
Gibson, Dunn & Crutcher LLP
555 Mission St. Suite 3000
San Francisco, CA 94105
Tel: (415) 393-8373
Approximate date of commencement of proposed
sale to the public: From time to time after this registration statement becomes effective.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.
x
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant
to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ¨
If an emerging growth company that prepares its
financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition
period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities
Act. ¨
CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
(1)
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Amount
to be
Registered
(2)
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Proposed
Maximum
Offering
Price per
Security
(3)
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Proposed
Maximum
Aggregate
Offering
Price
(3)
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Amount of
Registration
Fee
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Ordinary shares, nominal value DKK 0.01 per share
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70,356,900
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$
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0.45
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$
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31,660,605
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$
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2,935
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(1)
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American Depositary Shares, or ADSs, issuable upon deposit of the ordinary shares registered hereby have been registered pursuant to a separate registration statement on Form F-6 (File No. 333-199230). Each ADS represents the right to receive fourteen ordinary shares.
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(2)
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This registration statement also includes an indeterminate number of shares underlying the ADSs that may become offered, issuable or sold to prevent dilution resulting from stock splits, stock dividends and similar transactions, which are included pursuant to Rule 416 under the Securities Act of 1933, as amended.
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) promulgated under the Securities Act of 1933, as amended, based on the average of the equivalent high and low sales prices of the ADSs on the Nasdaq Capital Market on December 10, 2021, which date is within five business days prior to filing, divided by 14 (to give effect to the 1:14 ratio of ADSs to ordinary shares).
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The Registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933, as amended, or until the registration statement shall become effective on such date as the SEC, acting pursuant to said Section
8(a), may determine.
The information
in this prospectus is not complete and may be changed. The selling shareholders may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and
we are not soliciting an offer to buy these securities in any state or jurisdiction where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS
Subject to completion, dated December
13, 2021
70,356,900 Ordinary Shares in the form of American
Depositary Shares
This prospectus relates to
the resale, by the selling shareholders identified in this prospectus, of up to an aggregate of 70,356,900 ordinary shares, nominal value
DKK 0.01 per share of Forward Pharma A/S, represented by American Depository Shares, or ADSs.
The selling shareholders are
identified in the table commencing on page 9. Each ADS represents 14 ordinary shares. No ADSs are being registered hereunder for
sale by us. We will not receive any proceeds from the sale of the ADSs by the selling shareholders. All net proceeds from the sale of
the ordinary shares represented by ADSs covered by this prospectus will go to the selling shareholders.
The selling shareholders may
sell all or a portion of the ordinary shares represented by ADSs from time to time in market transactions through any market on which
our ADSs are then traded, in negotiated transactions or otherwise, and at prices and on terms that will be determined by the then prevailing
market price or at negotiated prices directly or through a broker or brokers, who may act as agent or as principal or by a combination
of such methods of sale. See “Plan of Distribution”.
Our ADSs are listed on The
Nasdaq Capital Market under the symbol “FWP”. On December 10, 2021, the closing price of our ADSs on The Nasdaq Capital Market
was $6.22 per ADS.
Investing in these securities
involves a high degree of risk. Please carefully consider the risks discussed in this prospectus under “Risk Factors” beginning
on page 5 and in our reports filed with the Securities and Exchange Commission, which are incorporated by reference herein for a discussion
of information that should be considered in connection with an investment in our securities.
Neither the U.S. Securities
and Exchange Commission nor any state or other foreign securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2021.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission, or SEC. As permitted by the rules and regulations of the SEC, the registration
statement filed by us includes additional information not contained in this prospectus. You may read the registration statement and the
other reports we file with the SEC at the SEC’s website or its offices described below under the heading “Where You Can Find
More Information”.
You should rely only on the information that is
contained in this prospectus or that is incorporated by reference into this prospectus. We have not authorized anyone to provide you with
information that is in addition to or different from that contained in, or incorporated by reference into, this prospectus. If anyone
provides you with different or inconsistent information, you should not rely on it.
This prospectus is not an offer to sell, nor is
it seeking an offer to buy, the ADSs in any state where the offer or sale is not permitted. The information in this prospectus speaks
only as of the date of this prospectus unless the information specifically indicates that another date applies, regardless of the time
of delivery of this prospectus or of any sale of the ADSs offered hereby. Our business, financial condition, results of operations, and
prospects may have changed since that date. We do not take any responsibility for, nor do we provide any assurance as to the reliability
of, any information other than the information in this prospectus. Neither the delivery of this prospectus nor the sale of the ADSs means
that information contained in this prospectus is correct after the date of this prospectus.
Unless otherwise indicated or the context otherwise
requires, all references in this prospectus to “Forward Pharma A/S” or the “Parent” refer to Forward Pharma A/S
and all references in this report to the “Group” refer to Forward Pharma A/S, together with its subsidiaries. All references
in this report to “Forward Pharma,” the “Company,” “we,” “our,” “ours,” “us”
or similar terms refer to Forward Pharma A/S or Forward Pharma A/S together with its subsidiaries, as required by the context.
We have not taken any action to permit a public
offering of the ADSs outside the United States or to permit the possession or distribution of this prospectus outside the United States.
Persons outside the United States who come into possession of this prospectus must inform themselves about and observe any restrictions
relating to the offering of the ADSs and the distribution of this prospectus outside of the United States.
PROSPECTUS SUMMARY
This summary highlights selected information
contained elsewhere in or incorporated by reference into this prospectus that we consider important. This summary does not contain all
of the information you should consider before investing in our securities. You should read this summary together with the entire prospectus,
including the risks related to our business, our industry and investing in our ordinary shares, that we describe under “Risk Factors”
and our consolidated financial statements and the related notes incorporated by reference into this prospectus and the other documents
incorporated by reference into this prospectus, which are described under “Incorporation by Reference” before making an investment
in our ADSs.
Overview
We are a Danish biopharmaceutical company whose
operations previously consisted of developing FP187®, a proprietary formulation of dimethyl fumarate, or DMF, for the treatment of
multiple sclerosis, or MS, for and other inflammatory and neurological indications. DMF is an immunomodulator that can be used as a therapeutic
to improve the health of patients with MS and immune disorders.
As a result of entering into a Settlement and License
Agreement, or the License Agreement, with two wholly owned subsidiaries of Biogen Inc., which we collectively refer to as Biogen, effective
as of February 1, 2017, combined with the unsuccessful outcome in the Interference Proceeding and Biogen's purchase of the intellectual
property in the United States associated with the Company, we have permanently discontinued our development of a DMF formulation, except
for maintaining our files and records for previously completed research and development work. We completed an organizational realignment
in 2017 to focus on the deliverables under the License Agreement and reduce operating expenses.
On September 6, 2021, the Technical Board of
Appeal, or the TBA, of the European Patent Office, or the EPO, dismissed our appeal of the previous decision of the EPO Opposition
Division to revoke the EP2801355 patent, or the ’355 patent, following the oral hearing. The TBA made its decision after
considering Forward’s appeal against the decision of the Opposition Division and third-party submissions from several
opponents. On November 18, 2021, the TBA issued its argued reasons for the decision in written form. Following management's review
of the written decision, we expect to announce future plans for the Company. Such plan may involve a petition for review at the
Enlarged Board of Appeal of the EPO in an effort to overturn the unfavorable outcome, but the likelihood of a petition for review
being successful is low. The denial of a petition for review would end the Opposition Proceeding in favor of the opponents. For all
practical purposes, such denial or the absence of a petition for review would represent an unsuccessful outcome of the Opposition
Proceeding, resulting in no royalties being due to the Company from Biogen based on Biogen’s future net sales outside the
United States, as defined in the License Agreement.
Corporate Information
We are a Danish public limited liability company
founded in 2005. Our principal executive offices are located at Østergade 24A, 1st Floor, 1100 Copenhagen K, Denmark. Our telephone
number at this address is +45 33 44 42 42. We are currently composed of Forward Pharma A/S, its two wholly-owned subsidiaries, Forward
Pharma USA, LLC incorporated in the state of Delaware, and Forward Pharma Operations ApS, incorporated in Denmark, and two wholly-owned
subsidiaries of Forward Pharma Operations ApS, Forward Pharma GmbH, incorporated in Germany, and Forward Pharma FA ApS, incorporated in
Denmark. Our website address is www.forward-pharma.com. The information contained on, or that can be accessed through, our website is
neither a part of nor incorporated into this prospectus. We have included our website address in this prospectus solely as an inactive
textual reference.
Our ADSs are listed on The Nasdaq Capital Market
under the symbol “FWP”. Effective December 6, 2019, we changed the ADS ratio from one ADS per two ordinary shares to one ADS
per fourteen ordinary shares.
Implications of being a Foreign Private Issuer
As a foreign private issuer, we are not subject
to the same requirements that are imposed upon U.S. domestic issuers by the SEC. Under the Exchange Act, we are subject to reporting obligations
that, in certain respects, are less detailed and less frequent than those of U.S. domestic reporting companies. For example, we will not
be required to issue proxy statements that comply with the requirements applicable to U.S. domestic reporting companies. We will also
have four months after the end of each fiscal year to file our annual reports with the SEC and will not be required to file current reports
as frequently or promptly as U.S. domestic reporting companies.
Furthermore, our officers, directors, and principal shareholders will
be exempt from the requirements to report transactions in our equity securities and from the short-swing profit liability provisions contained
in Section 16 of the Exchange Act. These exemptions and leniencies, along with other corporate governance exemptions resulting from our
ability to rely on home country rules, will reduce the frequency and scope of information and protections to which you may otherwise have
been eligible in relation to a U.S. domestic reporting company. If we were to lose our foreign private issuer status, the regulatory and
compliance costs to us under U.S. securities laws as a U.S. domestic issuer will be significantly more than costs we incur as a foreign
private issuer.
THE OFFERING
ADSs Offered
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Up to an aggregate of 70,356,900 ordinary shares, nominal value DKK 0.01 per share of Forward Pharma A/S, represented by ADSs. The selling shareholders are identified in the table commencing on page 9. Each ADS represents 14 ordinary shares.
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Ordinary Shares
Outstanding as of
June 30, 2021
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98,264,429 ordinary shares.
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Use of proceeds
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We will not receive any proceeds from the sale of the ordinary shares represented by ADSs by the selling shareholders. All net proceeds from the sale of the ordinary shares represented by ADSs covered by this prospectus will go to the selling shareholders. See the section of this prospectus titled “Use of Proceeds.”
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Nasdaq Capital
Market Symbol
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FWP
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Risk factors
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Before investing in our securities, you should carefully read and consider the “Risk Factors” beginning on page 5 of this prospectus.
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Depositary
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Bank of New York Mellon.
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Unless otherwise indicated, the number of ordinary
shares outstanding prior to and after this offering is based on 98,264,429 ordinary shares outstanding as of June 30, 2021, and excludes:
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·
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486,882 ordinary shares (equivalent to approximately 34,777 ADSs) issuable upon the exercise of warrants outstanding under our 2014 Omnibus Equity Incentive Compensation Plan, or the 2014 Plan, as of June 30, 2021 at a weighted-average exercise price of DKK 0.01 per ordinary share (equivalent to approximately $0.002 per ADS);
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2,523,933 ordinary shares (equivalent to approximately 180,277 ADSs) issuable upon the exercise of warrants outstanding outside of but on substantially the same terms as the 2014 Plan as of June 30, 2021 at a weighted-average exercise price of $0.17 per ordinary share (equivalent to $2.38 per ADS);
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·
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405,518 ordinary shares (equivalent to approximately 28,965 ADSs) issuable upon the exercise of deferred shares under the 2014 Plan, as of June 30, 2021, at a weighted-average exercise price of DKK 0.01 per ordinary share (equivalent to approximately $0.002 per ADS);
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·
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8,469,896 additional ordinary shares (equivalent to approximately 604,992 ADSs) available for future issuance as of June 30, 2021 under the 2014 Plan.
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Unless otherwise indicated, all information in
this prospectus assumes no exercise of the outstanding warrants or deferred shares described above.
RISK FACTORS
An investment in our securities involves a high
degree of risk, you should carefully consider the risk factors set forth in our most recent Annual Report on Form 20-F on file with the
SEC, which is incorporated by reference into this prospectus, as well as the following risk factors, which supplement or augment the risk
factors set forth in our Annual Report on Form 20-F. Before making an investment decision, you should carefully consider these risks as
well as other information we include or incorporate by reference in this prospectus. The risks and uncertainties not presently known to
us or that we currently deem immaterial may also materially harm our business, operating results and financial condition and could result
in a complete loss of your investment.
A substantial number of ADSs may be sold in this offering,
which could cause the price of our ADSs to decline.
We are registering for resale 70,356,900 ordinary
shares represented ADSs. This sale and any future sales of a substantial number of ADSs in the public market, or the perception that such
sales may occur, could adversely affect the price of the ADSs on The Nasdaq Capital Market. We cannot predict the effect, if any, that
market sales of those ADSs or the availability of those ADSs for sale will have on the market price of the ADSs.
If we fail to maintain the listing of our ADSs with a U.S.
national securities exchange, the liquidity and price of our ADSs could be adversely affected.
Our ADSs are currently listed for trading on The
Nasdaq Capital Market. In order to maintain our listing on The Nasdaq Capital Market, we must comply with certain Nasdaq listing rules.
In June 2019, we received written notices from Nasdaq indicating that we were not in compliance with two of the requirements for continued
listing on The Nasdaq Global Select Market, which was our listing venue at the time. In order to regain compliance and maintain our listing,
we subsequently transferred our listing venue from The Nasdaq Global Select Market to The Nasdaq Capital Market and changed the ADS ratio
from one ADS per two ordinary shares to one ADS per fourteen ordinary shares through a reduction of the number of outstanding ADSs.
While the trading price of our ADSs has been above
$1.00, as required by the Nasdaq listing rules, since the ADS ratio change was effected, there is no assurance that the trading price
will stay above $1.00. We actively monitor the price of our ADSs and will consider available options, including, but not limited to, changing
the ADS ratio, to maintain compliance with the continued listing standards of Nasdaq. We cannot assure that we will stay in compliance
with Nasdaq's continued listing standards. Following the decision by the EPO in September 2021, we have been in contact with Nasdaq regarding
our compliance with the continued listing standards. If we fail to comply with the continued listing standards of Nasdaq, we will not
be able to remain listed on that stock exchange, which could have a material adverse effect on the liquidity and price of our ADSs. We
may also choose to delist our ADSs from The Nasdaq Capital Market.
If our ADSs are delisted, either by Nasdaq or
voluntarily by the Company, our ADSs may be eligible to trade on the OTC Bulletin Board or another over-the-counter market, however, such
delisting could have an adverse impact on the liquidity and price of our ADSs. Any such alternative would likely result in it being more
difficult for us to raise additional capital through the public or private sale of equity securities and for investors to dispose of,
or obtain accurate quotations as to the market value of, our ADSs. In addition, there can be no assurance that our ADSs would be eligible
for trading on any such alternative exchange or markets.
NOTE REGARDING FORWARD LOOKING STATEMENTS
This prospectus contains or incorporates by reference
forward-looking statements and readers are cautioned that our actual results, performance and achievements may differ materially from
those discussed in the forward-looking statements. All statements other than statements of historical facts contained in this prospectus,
including statements regarding our strategy, future operations, future financial position, future revenue, projected costs, prospects,
plans, objectives of management and expected market growth are forward-looking statements. These statements involve known and unknown
risks, uncertainties and other important factors that may cause our actual results, performance or achievements to be materially different
from any future results, performance or achievements expressed or implied by the forward-looking statements. Words such as “may,”
“anticipate,” “estimate,” “expects,” “projects,” “intends,” “plans,”
“believes” and words and terms of similar substance used in connection with any discussion of future operating or financial
performance, identify forward-looking statements. Forward-looking statements represent management’s present judgment regarding future
events and are subject to a number of risks and uncertainties that could cause actual results, performance and achievements to differ
materially from those described in the forward-looking statements.
Such risks and uncertainties include, but are not
limited to:
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whether and when we will receive any additional payments under our Settlement and License Agreement with two subsidiaries of Biogen;
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our future plans for the Company, following review of the detailed reasons for the decision of the TBA in the ‘355 patent appeal
hearing, and whether we will petition for review at the Enlarged Board of Appeal of the EPO in an effort to overturn the unfavorable outcome;
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·
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our ability to defend our tax filing position in any ongoing tax audits;
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our ability to successfully protect, defend and enforce the intellectual property associated with the Company;
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our ability to maintain our listing on The Nasdaq Capital Market;
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the impact of coronavirus 2019, or COVID-19, on our business and stock price;
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our estimates regarding expenses, future revenues, capital requirements and the need for additional financing;
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·
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our ability to hire and retain qualified personnel;
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our ability to continue as a going concern; and
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·
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other risk factors identified under "Risk Factors" in this prospectus and our most recent Annual Report on Form 20-F.
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In light of these assumptions, risks and uncertainties,
the results and events discussed in the forward-looking statements contained in this prospectus might not occur. We are not under any
obligation, and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a result of new information,
future events or otherwise. All subsequent forward-looking statements attributable to us or to any person acting on our behalf are expressly
qualified in their entirety by the cautionary statements contained or referred to in this section.
You should read this prospectus and the documents
that we have filed as exhibits with the understanding that our actual future results may be materially different from what we expect.
We do not assume any obligation to update any forward-looking statements whether as a result of new information, future events or otherwise,
except as required by applicable law.
USE OF PROCEEDS
We will not receive any proceeds from the sale
of the ordinary shares represented by ADSs by the selling shareholders. All net proceeds from the sale of the ordinary shares represented
by ADSs covered by this prospectus will go to the selling shareholders. We expect that the selling shareholders will sell their ordinary
shares represented by ADSs as described under “Plan of Distribution”.
CAPITALIZATION
Our capitalization as of December 31, 2020 and
June 30, 2021 (unaudited) is set forth in the table below. The following information should be read in conjunction with the consolidated
financial statements and related notes incorporated by reference in this prospectus. For more details on how you can obtain the documents
incorporated by reference in this prospectus, see “Where You Can Find More Information” and “Incorporation of Certain
Information by Reference”.
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December 31,
2020
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June 30,
2021
(Unaudited)
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USD `000
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USD `000
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Share capital
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154
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157
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Other components of equity:
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Foreign currency translation reserve
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93,315
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90,808
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Accumulated deficit
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(14,825
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)
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(15,856
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)
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Total equity attributable to shareholders of the Company
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78,644
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75,109
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Total capitalization
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78,644
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75,109
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SELLING SHAREHOLDERS
We are registering ordinary shares represented
by ADSs in order to permit the selling shareholders to offer the ordinary shares represented by ADSs for resale from time to time. These
ordinary shares were issued in private placements prior to our initial public offering. Certain of the selling shareholders beneficially
own 5% or more of our ordinary shares prior to the offering. In addition, Mr. Florian Schönharting, our Chairman, may be deemed to
beneficially own the ordinary shares owned by Nordic Biotech K/S, Nordic Biotech Opportunity Fund K/S, NB FP Investment K/S and NB FP
Investment II K/S. Dr. Torsten Goesch, a member of our Board of Directors, may be deemed to beneficially own the shares owned by Rosetta
Capital I, LP.
The table below lists the selling shareholders
and other information regarding the beneficial ownership of the ordinary shares represented by ADSs by each of the selling shareholders.
The second column lists the number of ordinary shares represented by ADSs beneficially owned by each selling stockholder, based on its
ownership of ADSs, as of June 30, 2021. The third column lists the maximum number of ordinary shares represented by ADSs being offered
in this prospectus by the selling shareholders. The fourth and fifth columns list the amount of ordinary shares represented by ADSs owned
after the offering, by number of ordinary shares represented by ADSs and percentage of outstanding ordinary shares, assuming in both cases
the sale of all of the ordinary shares represented by ADSs offered by the selling shareholders pursuant to this prospectus. The selling
shareholders may sell all, some, or none of their ordinary shares represented by ADSs in this offering. See “Plan of Distribution.”
Selling Shareholder
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Number of
Ordinary
Shares
Owned
Prior to
Offering
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Maximum
Number of
Ordinary
Shares to
be Sold
Pursuant
to this
Prospectus
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Number of
Ordinary
Shares
Owned
After the
Offering
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Percentage
of
Ordinary
Shares
Owned
After the
Offering
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Nordic Biotech K/S(1)
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24,250,680
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24,250,680
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-
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*
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Nordic Biotech Opportunity Fund K/S(1)
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21,177,980
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21,177,980
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-
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*
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NB FP Investment K/S(2)
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5,014,720
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5,014,720
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-
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*
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NB FP Investment II K/S(2)
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1,204,520
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1,204,520
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-
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*
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Rosetta Capital I, LP(3)
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17,576,400
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17,576,400
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-
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*
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BVF Partners L.P. and its affiliates(4)
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10,194,786
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1,132,600
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9,062,186
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9.2
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*
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* Denotes less than 1%
(1)
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Nordic Biotech General Partner ApS is the general partner of Nordic Biotech K/S and Nordic Biotech Opportunity Fund K/S and has voting and dispositive power with respect to, and may be deemed to be the beneficial owner of, the shares held by Nordic Biotech K/S and Nordic Biotech Opportunity Fund K/S. Florian Schönharting controls 45% of the ownership interests in Nordic Biotech General Partner ApS and therefore may be deemed to share beneficial ownership of the securities beneficially owned by Nordic Biotech General Partners ApS, including the shares held by Nordic Biotech K/S and Nordic Biotech Opportunity Fund K/S.
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(2)
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Mr. Schönharting is the sole member of the Investment Committee of NB FP Investment K/S and NB FP Investment II K/S, and as such has voting and dispositive power with respect to, and may be deemed to be the beneficial owner of, shares held by NB FP Investment K/S and NB FP Investment II K/S.
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(3)
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Dr. Goesch has full investment and voting power over all of the shares held by Rosetta Capital I, LP (an affiliate of BioScience Managers Limited), and so may be deemed to share beneficial ownership of the securities owned by the fund. Dr. Goesch disclaims beneficial ownership of such securities except to the extent of his pecuniary interest therein.
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(4)
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Based on a Schedule 13G/A filed jointly by BVF Partners L.P. ("Partners"), BVF Inc., Mark N. Lampert, Biotechnology Value Fund, L.P. ("BVF"), BVF I GP LLC ("BVF GP"), Biotechnology Value Fund II, L.P. ("BVF2"), BVF II GP LLC ("BVF2 GP"), Biotechnology Value Trading Fund OS LP ("Trading Fund OS"), BVF Partners OS Ltd. ("Partners OS") and BVF GP Holdings LLC ("BVF GPH" and together with Partners, BVF, BVF GP, BVF2, BVF2 GP, Trading Fund OS and Partners OS, the "BVF Entities") with the SEC on February 11, 2021. Consists of (i) 5,052,310 shares beneficially owned by BVF, (ii) 3,698,691 shares beneficially owned by BVF2, and (iii) 616,756 shares beneficially owned by Trading Fund OS. BVF GP, as the general partner of BVF, may be deemed to beneficially own the shares beneficially owned by BVF. BVF2 GP, as the general partner of BVF2, may be deemed to beneficially own the shares beneficially owned by BVF2. Partners OS, as the general partner of Trading Fund OS, may be deemed to beneficially own the shares beneficially owned by Trading Fund OS. BVF GPH, as the sole member of each of BVF GP and BVF2 GP, may be deemed to beneficially own the 8,751,001 shares beneficially owned in the aggregate by BVF and BVF2. Partners, as the investment manager of BVF, BVF2 and Trading Fund OS, and the sole member of Partners OS, may be deemed to beneficially own the 10,194,786 shares beneficially owned in the aggregate by BVF, BVF2, Trading Fund OS, and certain Partners managed accounts (the "Partners Managed Accounts"), including 827,029 shares held in the Partners Managed Accounts. BVF Inc., as the general partner of Partners, may be deemed to beneficially own the shares beneficially owned by Partners. Mr. Lampert, as a director and officer of BVF Inc., may be deemed to beneficially own the shares beneficially owned by BVF Inc. BVF GP disclaims beneficial ownership of the shares beneficially owned by BVF. BVF2 GP disclaims beneficial ownership of the shares beneficially owned by BVF2. Partners OS disclaims beneficial ownership of the shares beneficially owned by Trading Fund OS. BVF GPH disclaims beneficial ownership of the shares beneficially owned by BVF and BVF2. Each of Partners, BVF Inc. and Mr. Lampert disclaims beneficial ownership of the shares beneficially owned by BVF, BVF2, Trading Fund OS, and the Partners Managed Accounts. The ordinary shares underlying the ADSs are held by The Bank of New York Mellon as depositary and are also included within this table as shares held by The Bank of New York Mellon. The business address of each of BVF, BVF GP, BVF2, BVF2 GP, BVF GPH, Partners, BVF Inc. and Mark N. Lampert is 44 Montgomery St., 40th Floor, San Francisco, California 94104. The business address of each of Trading Fund OS and Partners OS is PO Box 309 Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
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DESCRIPTION OF SHARE CAPITAL AND ARTICLES
OF ASSOCIATION
Set forth below is a summary of certain information
concerning our share capital as well as a description of certain provisions of our Articles of Association and relevant provisions of
the Danish Companies Act, or DCA. Because the following is only a summary, it does not contain all of the information that may be important
to you. The summary includes certain references to and descriptions of material provisions of our Articles of Association and Danish law
in effect as of the date of this prospectus. The summary below does not purport to be complete and is qualified in its entirety by reference
to applicable Danish law and our Articles of Association, a copy of which is incorporated by reference into this prospectus. Further,
please note that ADS holders are not treated as our shareholders and do not have rights as a shareholder. For more information regarding
the rights of ADS holders, see “Description of American Depositary Shares.”
General
Forward Pharma A/S was incorporated on July 1,
2005 as a limited liability company under Danish law. We are registered with the Danish Business Authority under company registration
number 28865880. Our corporate seat is in Copenhagen, Denmark, and our registered office is Østergade 24A, 1, 1100 Copenhagen K,
Denmark.
Our authorized share capital is nominally DKK 982,644.29,
divided into shares of DKK 0.01 each.
Our ADSs are listed on the Nasdaq Capital Market
under the symbol “FWP.” The transfer agent and registrar for the ADSs is The Bank of New York Mellon.
Articles of Association
Below is a summary of relevant information concerning
material provisions of our Articles of Association and applicable Danish law. This summary does not constitute legal advice regarding
those matters and should not be regarded as such.
See the section entitled “Comparison of Danish
Corporate Law and Our Articles of Association and U.S. Corporate Law—Shareholder Rights—Voting Rights” for a description
of the voting requirements for a resolution to amend the Articles of Association.
Since October 14, 2014, our Articles of Association
were amended as follows:
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on November 14, 2014, the Company’s nominal share capital was increased from 4,581,376 DKK to 4,651,374 DKK;
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on March 24, 2015, to add the terms applicable to warrants previously granted to certain of our directors and employees;
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on April 13, 2015, to increase the share capital in connection with the issuance of 142,150 shares to Joel Sendek;
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on April 20, 2015, to extend the exercise period for warrants that allow for the subscription of 333,720 shares and to increase the
board of directors’ authorization to issue warrants to employees and consultants by 1.7 million warrants and underlying shares;
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on June 23, 2015, to implement the terms applicable to warrants granted to a number of persons engaged or employed with the Company
or a subsidiary of the Company, issue of shares to two warrant holders that had exercised their warrants and amendments due to lapse of
certain warrants;
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on November 24, 2015, to implement the terms applicable to warrants granted to a number of persons engaged or employed with the Company
or a subsidiary of the Company;
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on May 6, 2016, to increase the allowable maximum number of board members, to increase and amend the board of directors’ authorization
to issue warrants and to reduce the board of directors’ authorization to increase the company’s share capital;
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on June 1, 2016, to implement the terms applicable to warrants granted to a number of persons engaged or employed with the Company
or a subsidiary of the Company, to issue shares to a warrant holder that had exercised its warrants and amendments due to lapse of certain
warrants;
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on July 29, 2016, to increase the share capital in connection with the issuance of 142,155 shares to Joel Sendek;
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on August 30, 2016, to implement the terms applicable to warrants granted to a person employed with the Company;
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on March 29, 2017, to implement the terms applicable to warrants granted to Claus Bo Svendsen and to issue shares to a warrant holder
that had exercised its warrants;
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on May 3, 2017, to reflect that the Company’s statutory Danish annual report is prepared and presented in English;
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on August 2, 2017, to make a share split in the ratio 1/10;
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on September 1, 2017, to decrease the share capital at a premium rate and pay the proceeds to the shareholders at a rate of EUR 19.45
per share of nominally 0.10 DKK (corresponding to EUR 2.43125 per share of nominally 0.01 DKK that was annulled);
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on November 21, 2017, to adopt principles for the adjustment of certain award terms and compensation of certain award holders due
to the changes in the Company’s capital structure etc. resolved on the Company’s extraordinary general meeting on August 2,
2017;
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on November 28, 2017, to implement the terms applicable to warrants granted to employees, board members and a consultant of the Company;
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on April 4, 2018, to implement the terms applicable to warrants granted to Claus Bo Svendsen;
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on June 12, 2018, to issue shares to two warrant holders that had exercised their warrants, include Jan van de Winkel, a former director
of the Company;
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on September 18, 2018, to implement the terms applicable to warrants granted to an employee of the Company and to issue shares to
a warrant holder that had exercised its warrants;
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on May 8, 2019, to extend until May 1, 2024 the authorizations of the board of directors pursuant to articles 3.2, 3.4, 3.6 and 4.2
in our Articles of Association to (a) issue warrants and corresponding shares to employees, members of the executive management, members
of the board of directors and consultants, (b) issue shares to employees, members of the executive management, members of the board of
directors and consultants, (c) issue shares without pre-emption rights of the existing shareholders, and (d) have the Company acquire
its own shares;
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on November 26, 2019, to implement the terms applicable to warrants granted two employees of the Company, including Claus Bo Svendsen;
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on April 24, 2020, to implement the terms applicable to warrants granted to Claus Bo Svendsen;
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on May 7, 2020, to issue shares to five warrant holders that had exercised their warrants, including Joel Sendek, the former CFO of
the Company, and to one holder of deferred shares; and
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on April 13, 2021, to issue shares to five warrant holders that had exercised their warrants, including Peder Møller Andersen,
the former CEO of the Company.
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Company’s shareholders’ register
Our shareholders’ register is maintained
by Computershare A/S who has been elected to act as our local share registrar.
Corporate Objective
Our corporate objectives are, directly or indirectly
through subsidiaries, to conduct business within development, manufacturing, distribution and sale of drugs and medicaments, as well as
any other related activities at the discretion of the board of directors. Furthermore, we may, within our line of business, participate
in partnerships or co-operate with other businesses, including by licensing out rights within our line of business.
Limitation on Liability and Indemnification Matters
Under Danish law, members of the board of
directors and executive officers may be held liable for damages in the event of improper or negligent conduct in breach of their
fiduciary duties. They may be held jointly and severally liable for losses incurred by the Company and third parties due to their
improper or negligent conduct. In certain circumstances, they may also incur additional criminal liabilities. The members of our
board of directors and executive officers are insured under an insurance policy protecting them against liability resulting from the
conduct of our directors and such certain officers when acting in their capacities as such. Each year at the annual general meeting
of shareholders, the discharge of the board of directors and the executive officers of certain responsibilities is an item on the
agenda. We have entered into indemnification agreements with members of our board of directors and our executive officers.
General Meetings
See below “Comparison of Danish Corporate
Law and Our Articles of Association and U.S. Corporate Law—Shareholder Rights—Shareholder Proposals” for a description
of the rules on time and venue of general meetings under Danish law. See below “Description of American Depositary Receipts—Voting
Rights” for a description of the rules and procedures for ADS holders in connection with general meetings.
Under our Articles of Association, general meetings
shall be convened by our board of directors with at least two weeks’ and not more than four weeks’ notice. Notice of general
meetings must be published on our website and in form and substance in accordance with the requirements of any stock exchange on which
our shares are listed. Further, written notice of the general meeting must be mailed to all of our shareholders who have requested such
notice be sent. The notice shall specify the time and place of the general meeting and the agenda containing the business to be transacted
at the general meeting. If a proposal to amend our Articles of Association is to be considered at the general meeting, a summary of such
proposal must be set out in the notice. For certain material amendments, the specific wording must be set out in the notice. The right
of a shareholder to attend a general meeting is determined by shares held by such shareholder at the record date, which is the day one
week prior to the date of the general meeting.
Quorum and Voting Requirements
Each ordinary share carries one vote at the general
meeting of shareholders. Shareholders may vote by proxy. The voting rights of any shares we hold in treasury are suspended as long as
they are so held. Shares held in treasury will not be taken into account for the purpose of determining the number of shareholders that
vote and that are present or represented, or the number of shares that are represented at our general meetings.
In accordance with Danish law and generally common
business practices, the Articles of Association do not provide for a quorum generally applicable to general meetings of shareholders.
See below “Comparison of Danish Corporate Law and Our Articles of Association and U.S. Corporate Law—Shareholder Rights—Voting
Rights” for a description of the rules on voting requirements under Danish law.
Members of the Board of Directors and Executive Officers
Under our Articles of Association, members of the
board of directors are elected at the general meeting of shareholders. Candidates are usually nominated by our existing board of directors
or shareholders, but any shareholders are entitled to nominate other candidates. The members of the board of directors are elected for
one year terms. Directors are not subject to term limits. Only persons who are younger than 70 years at the time of election may be elected
to the board of directors. The board of directors appoints our executive officers.
See below “Comparison of Danish Corporate
Law and Our Articles of Association and U.S. Corporate Law—Corporate Governance—Duties of Directors” for a description
of the general rules on duties and liabilities of the members of the board of directors under Danish law.
Obligation to Disclose Significant Shareholdings and Transactions
Pursuant to the DCA, shareholders must notify a
Danish company once they hold in excess of 5% of the company’s share capital or voting rights, and must also provide notice to the
company upon exceeding or falling below 5%, 10%, 15%, 20%, 25%, 33 1/3%, 50%, 66 2/3%, 90% and 100% of the company’s share capital
or voting rights. Such information must be registered with the Danish Business Authority by the company and is published by the Danish
Business Authority. This obligation does not apply to ADS holders.
Additionally, the beneficial owners (in
Danish: reelle ejere) of a company must be registered with the Danish Business Authority by the company. A beneficial owner is a
natural person whom ultimately owns or controls a sufficient amount (construed by the Danish Business Authority usually as in excess
of 25 percent) of the shares or voting rights or exercises control through other means of a Danish company. The identity of the
beneficial owners is published by the Danish Business Authority. Anyone who directly or indirectly owns or controls a Danish company
is upon request of the company obliged to provide the company with the information necessary for identification of the
company’s beneficial owners. If a company does not have beneficial owners or no beneficial owners can be identified, the
executive management will be registered as beneficial owners. A Danish company must at least once a year investigate whether there
are any changes to the registered beneficial owners of the company.
Comparison of Danish Corporate Law and Our Articles of Association
and U.S. Corporate Law
The following summary provides a comparison between
Danish corporation law and our Articles of Association, which applies to us, and Delaware corporation law, the law under which many publicly
listed corporations in the United States are incorporated. Although we believe this summary is materially accurate, the summary is subject
to Danish law, including the DCA, and Delaware corporation law, including the Delaware General Corporation Law, or DGCL. This summary
does not constitute legal advice regarding those matters and should not be regarded as such. Further, please note that an ADS holder will
not be treated as one of our shareholders and will not have any shareholder rights.
Corporate Governance
Duties of Directors
Denmark. The board of directors is responsible
for overall and strategic management. In addition to performing overall management duties and strategic management duties and ensuring
proper organization of the company’s business, the board must ensure that:
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the bookkeeping and financial reporting procedures are satisfactory, having regard to the circumstances of the limited liability company;
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adequate risk management and internal control procedures have been established;
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the board of directors receives ongoing information as necessary about the limited liability company’s financial position;
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the executive board performs its duties properly and as directed by the board of directors; and that
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the financial resources of the limited liability company are adequate at all times, and that the company has sufficient liquidity
to meet its current and future liabilities as they fall due. The limited liability company is therefore required to continuously assess
its financial position and ensure that the existing capital resources are adequate.
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The board of directors must appoint an executive
board to be responsible for the day-to-day management of the company. The executive board must either consist of one or more persons who
are also members of the board of directors, or consist of persons who are not members of the board of directors. In both cases, persons
in charge of day-to-day management will be designated as executive officers, and together they form the executive board of the limited
liability company. The majority of the members of the board of directors of public limited companies must be non-executive directors.
No executive officer in a public limited company may be chairman or vice-chairman of the board of directors of that company.
Delaware. The board of directors bears the
ultimate responsibility for managing the business and affairs of a corporation. In discharging this function, directors of a Delaware
corporation owe fiduciary duties of care and loyalty to the corporation and to its shareholders. Delaware courts have decided that the
directors of a Delaware corporation are required to exercise informed business judgment in the performance of their duties. Informed business
judgment means that the directors have informed themselves of all material information reasonably available to them. Delaware courts have
also imposed a heightened standard of conduct upon directors of a Delaware corporation who take any action in connection with a change
in control of the corporation. In addition, under Delaware law, when the board of directors of a Delaware corporation approves the sale
or break-up of a corporation, the board of directors may, in certain circumstances, have a duty to obtain the highest value reasonably
available to the shareholders. There is no prohibition on executive officers of Delaware companies serving as chairman or vice-chairman
of their board of directors.
Director Terms
Denmark. Under Danish law, directors are
elected by the general meeting for the terms set out in the company’s articles of association, provided however that the term shall
expire with the closing of an annual general meeting held no later than four years after their election. Directors are usually elected
for one-year terms. There is no limit in the number of terms a director may serve.
Delaware. The DGCL generally provides
for a one-year term for directors, but permits directorships to be divided into up to three classes with up to three-year terms,
with the years for each class expiring in different years, if permitted by the certificate of incorporation, an initial bylaw or a
bylaw adopted by the shareholders. A director elected to serve a term on a “classified” board may not be removed by
shareholders without cause. There is no limit in the number of terms a director may serve.
Director Vacancies
Denmark. Under Danish law, if there is no
alternate member to replace a resigning member, the other members of the board of directors must arrange for the election of a new member
to replace the resigning member during the remainder of his or her term of office. However, if the election is to be held at the general
meeting, it may be postponed until the next annual general meeting for the election of members of the board of directors, provided that
the number of remaining members and alternate members of the board of directors corresponds to the interval set out in the articles of
association and amounts to at least three members.
Delaware. The DGCL provides that vacancies
and newly created directorships may be filled by a majority of the directors then in office (even though less than a quorum) unless (i)
otherwise provided in the certificate of incorporation or bylaws of the corporation or (ii) the certificate of incorporation directs that
a particular class of shares is to elect such director, in which case any other directors elected by such class, or a sole remaining director
elected by such class, will fill such vacancy.
Conflict-of-Interest Transactions
Denmark. Under the DCA, no member of management
may participate in the transaction of business that involves any agreement between the limited liability company and that member, or legal
proceedings against that member, or the transaction of business that involves any agreement between the limited liability company and
a third-party, or legal proceedings against a third-party, if the member has a material interest in such business and that material interest
could conflict with the interests of the limited liability company.
Delaware. The DGCL generally permits transactions
involving a Delaware corporation and an interested director of that corporation if:
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the material facts as to the director’s relationship or interest are disclosed and a majority of disinterested directors consent;
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the material facts are disclosed as to the director’s relationship or interest and a majority of shares entitled to vote thereon
consent; or
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the transaction is fair to the corporation at the time it is authorized by the board of directors, a committee of the board of directors
or the shareholders.
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Proxy Voting by Directors
Denmark. A director of a Danish corporation
may issue only to another director a proxy representing the director’s voting rights at board meetings as a director.
Delaware. A director of a Delaware corporation
may not issue a proxy representing the director’s voting rights as a director.
Shareholder Rights
Voting Rights
Denmark. Under Danish law each share is
entitled to one vote unless otherwise provided for by the articles of association. Our Articles of Association provide for one class of
shares, ordinary shares, and each ordinary share shall be entitled to one vote.
A nominee shareholder is entitled to receive dividends
and to exercise all subscription and other financial rights attached to the shares held in its name. The administrative rights attached
to the shares (e.g., voting rights), however, cannot be exercised by the nominee unless (i) the beneficial owner of the shares discloses
its identity and is registered by name in our register of shareholders and/or (ii) the nominee can present a valid power of attorney from
the beneficial owner of the shares relating to the administrative rights.
The relationship between the nominee shareholder
and the beneficial owner is governed solely by an agreement between the parties, and the beneficial owner must disclose its identity,
if any of the aforementioned administrative rights are to be exercised directly by the beneficial owner.
The right to appoint a nominee does not eliminate
a shareholder’s obligation to notify us of a major shareholding.
All business transacted by the general meeting
shall be decided by a simple majority of votes, unless otherwise provided by the DCA or by the Articles of Association.
A resolution to amend the Articles of Association
requires the resolution be adopted by at least two-thirds of the votes cast as well as the share capital represented at the general meeting,
unless the DCA or the Articles of Association requires a larger majority.
Delaware. Under the DGCL, each shareholder
is entitled to one vote per share, unless the certificate of incorporation provides otherwise. In addition, the certificate of incorporation
may provide for cumulative voting at all elections of directors of the corporation, or at elections held under specified circumstances.
Either the certificate of incorporation or the bylaws may specify the number of shares and/or the amount of other securities that must
be represented at a meeting in order to constitute a quorum, but in no event will a quorum consist of less than one third of the shares
entitled to vote at a meeting.
Shareholders as of the record date for the meeting
are entitled to vote at the meeting, and the board of directors may fix a record date that is no more than 60 nor less than 10 days before
the date of the meeting, and if no record date is set then the record date is the close of business on the day next preceding the day
on which notice is given, or if notice is waived then the record date is the close of business on the day next preceding the day on which
the meeting is held. The determination of the shareholders of record entitled to notice or to vote at a meeting of shareholders shall
apply to any adjournment of the meeting, but the board of directors may fix a new record date for the adjourned meeting.
Shareholder Proposals
Denmark. The shareholders’ rights
to pass resolutions are exercised at the general meetings of the limited liability company. All shareholders, irrespective of voting rights,
are entitled to attend and speak at general meetings.
General meetings must be held at the registered
office of the limited liability company, unless the articles of association specify another place at which the meetings must or can be
held. If special circumstances require it, a general meeting may, in isolated cases, be held elsewhere.
The annual general meeting must be held in time
for the annual report adopted by the board of directors and the general meeting to reach the Danish Business Authority within five months
from the end of the financial year, the time limit specified in the Financial Statements Act. The annual report must be submitted to the
general meeting.
Extraordinary general meetings must be held upon
request from the board of directors or the auditor elected by the general meeting. Shareholders that hold 5% of the share capital can
request an extraordinary general meeting in writing. Extraordinary general meetings to consider specific issues must be convened within
two weeks of receipt of a request to such effect.
Delaware. Delaware law does not specifically
grant shareholders the right to bring business before an annual or special meeting. However, if a Delaware corporation is subject to the
SEC’s proxy rules, a shareholder who owns at least $2,000 in market value, or 1% of the corporation’s securities entitled
to vote, may include a shareholder proposal in the corporation’s proxy materials relating to an annual or special meeting in accordance
with those rules.
Action by Written Consent
Denmark. Under Danish law, shareholders
can, subject to certain exemptions, pass resolutions at a general meeting without complying with the requirements as to form and notice
in the DCA and the company’s articles of association, provided that all shareholders agree to do so. Further, unless otherwise provided
by the company’s articles of association, the board of directors may determine that in addition to a right to physically attend
general meetings, shareholders may be given the right to attend electronically, including using electronic voting that does not require
physical attendance at the meeting, so that the general meeting will be partly electronic. Moreover, the general meeting may resolve to
hold general meetings electronically without any opportunity for parties to physically attend, so that the meeting is held by electronic
means alone. A resolution to that effect must be recorded in the company’s articles of association.
Delaware. Although permitted by Delaware
law, publicly listed companies do not typically permit shareholders of a corporation to take action by written consent.
Appraisal Rights
Denmark. The DCA provides for certain shareholder
appraisal rights in connection with certain mergers and demergers, and in relation to certain cross-border mergers and demergers also
the right to demand redemption of the shareholder’s shares.
Delaware. The DGCL provides for shareholder
appraisal rights, or the right to demand payment in cash of the judicially determined fair value of the shareholder’s shares, in
connection with certain mergers and consolidations.
Shareholder Suits
Denmark. Under Danish law, any resolution
that the company should take legal action against its promoters, members of management, valuation experts, auditors, scrutinizers, keepers
of the register of shareholders or shareholders must be passed by the general meeting. Proceedings may be commenced notwithstanding any
previous resolutions passed at a general meeting granting exemption from liability or waiving the right to take legal action if the information
concerning the resolution or the subject matter of the proceedings provided to the general meeting before the resolution was passed was
not essentially correct or complete. If shareholders that represent no less than one-tenth of the share capital oppose any resolution
to grant exemption from liability or waive the right to take legal action, any shareholder can commence legal proceedings to recover damages
for the company from the person(s) liable for the loss suffered. Shareholders who commence such proceedings must pay the legal costs involved,
but may have such costs reimbursed by the company to the extent that they do not exceed the amount recovered by the company as a result
of the proceedings. If the company is declared bankrupt, and the date of presentation of the bankruptcy petition is no later than 24 months
after the date on which the general meeting resolved to grant exemption from liability or waive the right to take legal action, the bankrupt
estate may, however, bring an action for damages without regard to the resolution passed at the general meeting. If a shareholder has
suffered a loss, which is not an indirect loss due to a loss suffered by the company, such shareholder can commence legal proceedings
to recover such loss independently and regardless of the above.
Delaware. Under the DGCL, a shareholder
may bring a derivative action on behalf of the corporation to enforce the rights of the corporation. An individual also may commence a
class action suit on behalf of himself and other similarly situated shareholders where the requirements for maintaining a class action
under Delaware law have been met. A person may institute and maintain such a suit only if that person was a shareholder at the time of
the transaction which is the subject of the suit. In addition, under Delaware case law, the plaintiff normally must be a shareholder at
the time of the transaction that is the subject of the suit and throughout the duration of the derivative suit. Delaware law also requires
that the derivative plaintiff make a demand on the directors of the corporation to assert the corporate claim before the suit may be prosecuted
by the derivative plaintiff in court, unless such a demand would be futile.
Repurchase of Shares
Denmark. Under Danish law, a limited liability
companies may acquire their own shares if they are fully paid up. The shares may be acquired both in ownership and by way of security.
If a limited liability company acquires its own shares for consideration, such consideration may only consist of the funds that may be
distributed as ordinary dividends under the provisions of the DCA and the company’s holding of its own shares must be disregarded
when assessing whether the company satisfies the mandatory minimum capital requirements. An acquisition of a company’s own shares
for consideration cannot take place without the board of directors’ obtaining authority from the general meeting, and such authority
may only be given for a specified time, which may not exceed five years. The authority must specify (i) the maximum permitted value of
the company’s own shares; and (ii) the minimum and maximum amount that may be paid by the company as consideration for the shares.
Delaware. Under the DGCL, a corporation
may purchase or redeem its own shares unless the capital of the corporation is impaired or the purchase or redemption would cause an impairment
of the capital of the corporation. A Delaware corporation may, however, purchase or redeem out of capital any of its preferred shares
or, if no preferred shares are outstanding, any of its own shares if such shares will be retired upon acquisition and the capital of the
corporation will be reduced in accordance with specified limitations.
Anti-Takeover Provisions
Denmark. Danish company law does not contain
specific anti-takeover provisions for unlisted companies but a company’s articles of association may include poison pills to this
effect, e.g., share classes with higher voting rights than other share classes or provisions to the effect that the board of directors
shall approve share transfers.
Delaware. In addition to other aspects of
Delaware law governing fiduciary duties of directors during a potential takeover, the DGCL also contains a business combination statute
that protects Delaware companies from hostile takeovers and from actions following the takeover by prohibiting some transactions once
an acquirer has gained a significant holding in the corporation.
Section 203 of the DGCL prohibits “business
combinations,” including mergers, sales and leases of assets, issuances of securities and similar transactions by a corporation
or a subsidiary with an interested shareholder that beneficially owns 15% or more of a corporation’s voting shares, within three
years after the person becomes an interested shareholder, unless:
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the transaction that will cause the person to become an interested shareholder is approved by the board of directors of the target
prior to the transactions;
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after the completion of the transaction in which the person becomes an interested shareholder, the interested shareholder holds at
least 85% of the voting shares of the corporation not including shares owned by persons who are directors and officers of interested shareholders
and shares owned by specified employee benefit plans; or
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after the person becomes an interested shareholder, the business combination is approved by the board of directors of the corporation
and holders of at least 66.67% of the outstanding voting shares, excluding shares held by the interested shareholder.
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A Delaware corporation may elect not to be governed
by Section 203 by a provision contained in the original certificate of incorporation of the corporation or an amendment to the original
certificate of incorporation or to the bylaws of the company, which amendment must be approved by a majority of the shares entitled to
vote and may not be further amended by the board of directors of the corporation. Such an amendment is not effective until twelve months
following its adoption.
Inspection of Books and Records
Denmark. Under Danish law, the company’s
annual report is public and shareholders have no access to inspect the company’s books and records. They are instead referred to
exercise their right to ask questions to the board or management at a general meeting or to submit a proposal for scrutiny of the company’s
formation, of any specific matter relating to the administration of the company, or of certain financial statements. If such a proposal
is adopted by a simple majority of votes, the general meeting must elect one or more scrutinizers. The scrutinizer may demand from the
company’s management any information deemed to be of importance to the assessment of the company and shall submit a written report
to the general meeting.
Delaware. Under the DGCL, any shareholder
may inspect for any proper purpose certain of the corporation’s books and records during the corporation’s usual hours of
business.
Removal of Directors
Denmark. Under Danish law, members of the
board of directors may be removed at any time by the electing or appointing party. Consequently, directors elected at a general meeting
may be removed at another general meeting by a simple majority of votes.
Delaware. Under the DGCL, any director or
the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote
at an election of directors, except (i) unless the certificate of incorporation provides otherwise, in the case of a corporation whose
board is classified, shareholders may effect such removal only for cause, or (ii) in the case of a corporation having cumulative voting,
if less than the entire board is to be removed, no director may be removed without cause if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there are classes of directors,
at an election of the class of directors of which he is a part.
Preemptive Rights
Denmark. Under Danish law, existing
shareholders will have preemptive rights to participate on the basis of their existing share ownership in the issuance of any new
shares for cash consideration, unless those rights are waived by a resolution of the shareholders at a general meeting or the shares
are issued on the basis of an authorization by the board of directors under which the board is granted the authority to waive the
preemptive rights. Furthermore, the preemptive rights of the shareholders may be derogated from by a majority comprising at least
two-thirds of the votes cast and of the share capital represented at the general meeting if the share capital increase is made at
least at market price.
Delaware. Under the DGCL, shareholders have
no preemptive rights to subscribe for additional issues of shares or to any security convertible into such shares unless, and to the extent
that, such rights are expressly provided for in the certificate of incorporation.
Dividends
Denmark. Under Danish law, the company’s
assets may only be distributed to its shareholders (i) as dividends, based on the latest adopted financial statements; (ii) as interim
dividends; (iii) in connection with capital reductions; or (iv) in connection with the solvent dissolution of the company.
Dividends, if any, are declared with respect to
a financial year at the annual general meeting of shareholders in the following year, where the statutory annual report (which includes
the audited financial statements) for that financial year is approved. Further, shareholders may resolve at a general meeting to distribute
interim dividends, and the board of directors may, pursuant to an authorization that may be granted to it by its shareholders, resolve
to distribute interim dividends. Any resolution to distribute interim dividends within six months after the balance date as set out in
our latest adopted annual report must be accompanied by the balance sheet from our latest annual report or an interim balance sheet which
must be reviewed by an auditor. If the decision to distribute interim dividends is passed more than six months after the balance date
as set out in our latest adopted annual report, an interim balance sheet must be prepared and reviewed by an auditor. The balance sheet
or the interim balance sheet, as applicable, must show that sufficient funds are available for distribution. Dividends may not exceed
the amount recommended by the board of directors for approval by the general meeting of shareholders. Moreover, dividends and interim
dividends may only be made out of distributable reserves and may not exceed what is considered sound with regard to our financial condition
or be to the detriment of our creditors and such other factors as the board of directors may deem relevant.
Delaware. Under the DGCL, a Delaware corporation
may pay dividends out of its surplus (the excess of net assets over capital), or in case there is no surplus, out of its net profits for
the fiscal year in which the dividend is declared and/or the preceding fiscal year (provided that the amount of the capital of the corporation
is not less than the aggregate amount of the capital represented by the issued and outstanding shares of all classes having a preference
upon the distribution of assets). In determining the amount of surplus of a Delaware corporation, the assets of the corporation, including
shares of subsidiaries owned by the corporation, must be valued at their fair market value as determined by the board of directors, without
regard to their historical book value. Dividends may be paid in the form of common stock, property or cash.
Shareholder Vote on Certain Reorganizations
Denmark. Shareholders’ approval rights
may be (and often are) prescribed in the company’s articles of association or in a shareholders’ agreement, or both.
Mergers must be approved by the shareholders of
the discontinuing company and by the board of directors of the continuing company, provided that the merger does not require a capital
increase or other amendments to the articles of association of the continuing company, in which case the merger must also be approved
by the continuing company’s shareholders.
Voluntary public tender offers are usually conditional
upon the situation where a certain percentage of nominal share capital or voting rights (or both) of the target company accepts the offer,
the percentage of which depends on the aim the bidder is seeking to achieve. Ordinary amendments of the articles of association require
two-thirds of both votes and capital represented at the general meeting, while squeeze-outs require more than nine-tenths of all votes
and capital in the target company.
The DCA provides that a minority shareholder may
demand that a single majority shareholder holding more than nine-tenths of all votes and capital in a company buy all of the shares of
that minority shareholder.
Delaware. Under the DGCL, the vote of
a majority of the outstanding shares capital entitled to vote thereon generally is necessary to approve a merger or consolidation or
the sale of all or substantially all of the assets of a corporation. The DGCL permits a corporation to include in its certificate of
incorporation a provision requiring for any corporate action the vote of a larger portion of the shares or of any class or series of
shares than would otherwise be required.
Under the DGCL, no vote of the shareholders of
a surviving corporation to a merger is needed, however, unless required by the certificate of incorporation, if (i) the agreement of merger
does not amend in any respect the certificate of incorporation of the surviving corporation, (ii) the shares of the surviving corporation
are not changed in the merger and (iii) the number of shares of common stock of the surviving corporation into which any other shares,
securities or obligations to be issued in the merger may be converted does not exceed 20% of the surviving corporation’s common
stock outstanding immediately prior to the effective date of the merger. In addition, shareholders may not be entitled to vote in certain
mergers with other corporations that own 90% or more of the outstanding shares of each class of stock of such corporation, but the shareholders
will be entitled to appraisal rights.
Remuneration of Directors
Denmark. Under Danish law, the board of
directors may receive fixed or variable remuneration. The amount of remuneration may not exceed what is considered usual, taking into
account the nature and extent of the work, and what is considered reasonable with regard to the limited liability company’s financial
position and, in the case of parent companies, the group’s financial position. Since the board of directors is disqualified to resolve
remuneration on its own, the remuneration is fixed by the shareholders, typically at the ordinary general meeting in connection with the
adoption of the company’s annual report.
Delaware. Under the DGCL, the shareholders
do not generally have the right to approve the compensation policy for directors or the senior management of the corporation, although
certain aspects of executive compensation may be subject to shareholder vote due to the provisions of U.S. federal securities and tax
law, as well as exchange requirements.
DESCRIPTION OF AMERICAN DEPOSITARY SHARES
Our American Depositary Receipts, or ADR, program
is administered by The Bank of New York Mellon, or the depositary, located at 240 Greenwich Street, 22nd Floor, New York, New
York 10286. Each ADS represents 14 ordinary shares (or a right to receive 14 ordinary shares) deposited with The Bank of New York Mellon,
London Branch, or any successor, as custodian for the depositary. Each ADS also represents any other securities, cash or other property
which may be held by the depositary in respect of the depositary facility.
ADSs may be held either directly or indirectly
through a broker or other financial institution. If an ADS holder holds their ADSs directly, they will be a registered ADS holder. If
an ADS is held indirectly, the relevant holder must rely on the procedures of their broker or other financial institution to assert the
rights of ADS holders described below. Such holders should consult with their broker or financial institution to find out what those procedures
are.
The Direct Registration System, or DRS, is a system
administered by The Depository Trust Company, or DTC, pursuant to which the depositary may register the ownership of uncertificated ADSs,
which ownership is confirmed by periodic statements sent by the depositary to the registered holders of uncertificated ADSs.
An ADS holder will not be treated as one of our
shareholders and will not have shareholder rights. Danish law governs shareholder rights. The depositary will be the holder of the ordinary
shares underlying ADSs. ADS Holders will have ADS holder rights. A deposit agreement among us, the depositary and an ADS holder, and all
other persons directly and indirectly holding ADSs, sets out ADS holder rights as well as the rights and obligations of the depositary.
New York law governs the deposit agreement and the ADSs.
Dividends and Other Distributions
How will ADS holders receive dividends and
other distributions on the ordinary shares?
The depositary has agreed to pay the ADS holder
the cash dividends or other distributions it or the custodian receives on ordinary shares or other deposited securities, after deducting
its fees and expenses. An ADS holder will receive these distributions in proportion to the number of ordinary shares their ADSs represent.
Cash. In the event
we declare or pay any cash dividends or cash distributions on our ordinary shares, the depositary will convert any cash dividend or other
cash distribution we pay on the ordinary shares or any net proceeds from the sale of any ordinary shares, rights, securities or other
entitlements into U.S. dollars if it can do so on a reasonable basis and at the then prevailing market rate, and can transfer the U.S.
dollars to the United States. If that is not possible and lawful or if any government approval is needed and cannot be obtained, the deposit
agreement allows the depositary to distribute the foreign currency only to those ADS holders to whom it is possible to do so. It will
hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the foreign
currency and it will not be liable for any interest. Before making a distribution, any taxes or other governmental charges, together with
fees and expenses of the depositary that must be paid, will be deducted. See the section of our Annual Report on Form 20-F titled “Taxation”
for more information. It will distribute only whole U.S. dollars and cents and will round fractional cents to the nearest whole cent.
If the exchange rates fluctuate during a time when the depositary cannot convert the foreign currency, the ADS holder may lose some or
all of the value of the distribution.
Ordinary Shares. The
depositary may distribute additional ADSs representing any ordinary shares we distribute as a dividend or bonus shares to the extent reasonably
practicable and permissible under law. The depositary will only distribute whole ADSs. If the depositary does not distribute additional
ADSs, the outstanding ADSs will also represent the new ordinary shares. The depositary may sell a portion of the distributed ordinary
shares sufficient to pay its fees and expenses in connection with that distribution.
Elective Distributions in Cash or Shares. If
we offer holders of our ordinary shares the option to receive dividends in either cash or shares, the depositary, after consultation with
us, may make such elective distribution available to ADS holders. We must first instruct the depositary to make such elective distribution
available to ADS holders. As a condition of making a distribution election available to ADS holders, the depositary may require satisfactory
assurances from us that doing so would not require registration of any securities under the Securities Act. There can be no assurance
that ADS holders will be given the opportunity to receive elective distributions on the same terms and conditions as the holders of ordinary
shares, or at all.
Rights to Purchase Additional Ordinary Shares. If
we offer holders of our securities any rights to subscribe for additional ordinary shares or any other rights, the depositary may make
these rights available to ADS holders. If the depositary decides it is not legal and practical to make the rights available but that it
is practical to sell the rights, the depositary will use reasonable efforts to sell the rights and distribute the proceeds in the same
way as it does with cash distributions. The depositary will allow rights that are not distributed or sold to lapse. In that case, ADS
holders will receive no value for them.
If the depositary makes rights available to ADS
holders, it will exercise the rights and purchase the ordinary shares on an ADS holder’s behalf and in accordance with the ADS holder’s
instructions. The depositary will then deposit the ordinary shares and deliver ADSs to the ADS holder. It will only exercise rights if
the ADS holder pays it the exercise price and any other charges the rights require the ADS holder to pay and comply with other applicable
instructions.
U.S. securities laws may restrict transfers and
cancellation of the ADSs representing ordinary shares purchased upon exercise of rights. For example, ADS holders may not be able to trade
these ADSs freely in the United States. In this case, the depositary may deliver restricted depositary shares that have the same terms
as the ADSs described in this section except for changes needed to put the necessary restrictions in place.
Other Distributions. The
depositary will send to ADS holders anything else we distribute to holders of deposited securities by any means it determines is equitable
and practicable. If it cannot make the distribution proportionally among the owners, the depositary may adopt another equitable and practical
method. It may decide to sell what we distributed and distribute the net proceeds, in the same way as it does with cash. Or, it may decide
to hold what we distributed, in which case ADSs will also represent the newly distributed property. However, the depositary is not required
to distribute any securities (other than ADSs) to ADS holders unless it receives satisfactory evidence from us that it is legal to make
that distribution. In addition, the depositary may sell a portion of the distributed securities or property sufficient to pay its fees
and expenses in connection with that distribution.
Neither we nor the depositary are responsible for
any failure to determine that it may be lawful or feasible to make a distribution available to any ADS holders. We have no obligation
to register ADSs, ordinary shares, rights or other securities under the Securities Act. This means that ADS holders may not receive the
distributions we make on our ordinary shares or any value for them if it is illegal or impractical for us to make them available to ADS
holders.
Deposit, Withdrawal and Cancellation
How are ADSs issued?
The depositary will deliver ADSs if an ADS holder
or its broker deposits ordinary shares or evidence of rights to receive ordinary shares with the custodian and we instruct the depositary
to make such delivery. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or share transfer taxes
or fees, and delivery of any required endorsements, certifications or other instruments of transfer required by the depositary, the depositary
will register the appropriate number of ADSs in the names an ADS holder requests and will deliver the ADSs to or upon the order of the
person or persons that made the deposit.
How can ADS holders withdraw the deposited
securities?
ADS holders may surrender their ADSs at the depositary’s
corporate trust office. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or share transfer taxes
or fees, the depositary will transfer and deliver the ordinary shares and any other deposited securities underlying the ADSs to the ADS
holder or a person designated by the ADS holder at the office of the custodian or through a book-entry delivery. Alternatively, at the
ADS holder’s request, risk and expense, the depositary will transfer and deliver the deposited securities at its corporate trust
office, if feasible.
How can ADS holders interchange between certificated
ADSs and uncertificated ADSs?
ADS holders may surrender their ADRs to the depositary
for the purpose of exchanging their ADRs for uncertificated ADSs. The depositary will cancel the ADRs and will send the ADS holder a statement
confirming that it is the owner of uncertificated ADSs. Alternatively, upon receipt by the depositary of a proper instruction from a registered
holder of uncertificated ADSs requesting the exchange of uncertificated ADSs for certificated ADSs, the depositary will execute and deliver
to the ADS holder an ADR evidencing those ADSs.
Voting Rights
How do ADS holders vote?
ADS holders may instruct the depositary to vote
the number of whole deposited ordinary shares the ADSs represent. The depositary will notify ADS holders of shareholders’ meetings
or other solicitations of consents and arrange to deliver our voting materials to ADS holders if we ask it to. Those materials will describe
the matters to be voted on and explain how ADS holders may instruct the depositary how to vote. For instructions to be valid, they must
reach the depositary by a date set by the depositary.
The
depositary will try, as far as practical, and subject to the laws of Denmark and our Articles of Association, to vote or to have its agents
vote on the ordinary shares or other deposited securities as instructed by ADS holders.
The
depositary will only vote or attempt to vote as ADS holders instruct or as described above.
We
cannot assure ADS holders that they will receive the voting materials in time to ensure that ADS holders can instruct the depositary to
vote their ordinary shares. In addition, the depositary and its agents are not responsible for failing to carry out voting instructions
or for the manner of carrying out voting instructions provided that any such failure is in good faith. This means that ADS holders may
not be able to exercise their right to vote and there may be nothing ADS holders can do if their ordinary shares are not voted as requested.
In
order to give ADS holders a reasonable opportunity to instruct the depositary as to the exercise of voting rights relating to deposited
securities, if we request the depositary to act, we will give the depositary notice of any such meeting and details concerning the matters
to be voted upon at least 45 days in advance of the meeting date.
Except as described above, ADS holders will not
be able to exercise their right to vote unless they withdraw the ordinary shares. However, ADS holders may not know about the shareholder
meeting far enough in advance to withdraw the ordinary shares.
Fees and Expenses
What fees and expenses will ADS holders be
responsible for paying?
Pursuant to the terms of the deposit agreement,
the holders of ADSs will be required to pay the following fees:
Persons depositing or withdrawing ordinary shares or ADSs must pay:
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For:
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$5.00 (or less) per 100 ADSs (or portion of 100 ADSs)
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Issue of ADSs, including issues resulting from a distribution of ordinary shares or rights or other property
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Cancellation of ADSs for the purpose of withdrawal, including if the deposit agreement terminates
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$0.05 (or less) per ADS
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Any cash distribution to an ADS holder
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A fee equivalent to the fee that would be payable if securities distributed to ADS holders had been ordinary shares and the shares had been deposited for issue of ADSs
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Distribution of securities distributed to holders of deposited securities which are distributed by the depositary to ADS holders
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$0.05 (or less) per ADS per calendar year
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Depositary services
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Registration or transfer fees
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Transfer and registration of ordinary shares on our share register to or from the name of the depositary or its agent when ADS holders deposit or withdraw shares
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Expenses of the depositary
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Cable, telex and facsimile transmissions (when expressly provided in the deposit agreement)
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Converting foreign currency to U.S. dollars
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Taxes and other governmental charges the depositary or the custodian have to pay on any ADS or share underlying an ADS, for example, share transfer taxes, stamp duty or withholding taxes
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As necessary
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Any charges incurred by the depositary or its agents for servicing the deposited securities
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As necessary
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The depositary collects its fees for delivery and
surrender of ADSs directly from investors depositing ordinary shares or surrendering ADSs for the purpose of withdrawal or from intermediaries
acting for them. The depositary collects fees for making distributions to investors by deducting those fees from the amounts distributed
or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services by
deduction from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants acting
for them. The depositary may collect any of its fees by deduction from any cash distribution payable to ADS holders that are obligated
to pay those fees. The depositary may generally refuse to provide for-fee services until its fees for those services are paid.
From time to time, the depositary may make payments
to us to reimburse or share revenue from the fees collected from ADS holders, or waive fees and expenses for services provided, generally
relating to costs and expenses arising out of establishment and maintenance of the ADS program. In performing its duties under the deposit
agreement, the depositary may use brokers, dealers or other service providers that are affiliates of the depositary and that may earn
or share fees or commissions.
Payment of Taxes
ADS holders will be responsible for any taxes or
other governmental charges payable on their ADSs or on the deposited securities represented by any of their ADSs. The depositary may refuse
to register any transfer of ADSs or allow ADS holders to withdraw the deposited securities represented by their ADSs until such taxes
or other charges are paid. It may apply payments owed to ADS holders or sell deposited securities represented by their ADSs to pay any
taxes owed and ADS holders will remain liable for any deficiency. If the depositary sells deposited securities, it will, if appropriate,
reduce the number of ADSs registered in the ADS holder’s name to reflect the sale and pay the ADS holder any net proceeds, or send
the ADS holder any property, remaining after it has paid the taxes.
Reclassifications, Recapitalizations and Mergers
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Change the nominal or par value of our ordinary shares
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The cash, ordinary shares or other securities received by the depositary will become deposited securities.
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Reclassify, split up or consolidate any of the deposited securities
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Each ADS will automatically represent its equal share of the new deposited securities.
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Distribute securities on the ordinary shares that are not distributed to ADS holders
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The depositary may also deliver new ADSs or ask ADS holders to surrender their outstanding ADRs in exchange for new ADRs identifying the new deposited securities. The depositary may also sell the new deposited securities and distribute the net proceeds if we are unable to assure the depositary that the distribution (a) does not require registration under the Securities Act or (b) is exempt from registration under the Securities Act.
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Recapitalize, reorganize, merge, liquidate, sell all or substantially all of our assets, or take any similar action
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Any replacement securities received by the depositary shall be treated as newly deposited securities and either the existing ADSs or, if necessary, replacement ADSs distributed by the depositary will represent the replacement securities. The depositary may also sell the replacement securities and distribute the net proceeds if the replacement securities may not be lawfully distributed to all ADS holders.
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Amendment and Termination
How may the deposit agreement be amended?
We may agree with the depositary to amend the deposit
agreement and the ADRs without ADS holders’ consent for any reason. If an amendment adds or increases fees or charges, except for
taxes and other governmental charges or expenses of the depositary for registration fees, facsimile costs, delivery charges or similar
items, or prejudices a substantial right of ADS holders, it will not become effective for outstanding ADSs until 30 days after the
depositary notifies ADS holders of the amendment. At the time an amendment becomes effective, ADS holders are considered, by continuing
to hold their ADSs, to agree to the amendment and to be bound by the ADRs and the deposit agreement as amended.
How may the deposit agreement be terminated?
The depositary will terminate the deposit agreement
at our direction by mailing notice of termination to the ADS holders then outstanding at least 30 days prior to the date fixed in
such notice for such termination. The depositary may also terminate the deposit agreement by mailing a notice of termination to us and
the ADS holders if 60 days have passed since the depositary told us it wants to resign but a successor depositary has not been appointed
and accepted its appointment.
After termination, the depositary and its agents
will do the following under the deposit agreement but nothing else: collect distributions on the deposited securities, sell rights and
other property, and deliver ordinary shares and other deposited securities upon cancellation of ADSs. Four months after termination, the
depositary may sell any remaining deposited securities by public or private sale. After that, the depositary will hold the money it received
on the sale, as well as any other cash it is holding under the deposit agreement for the pro rata benefit of the ADS holders that have
not surrendered their ADSs. It will not invest the money and has no liability for interest. The depositary’s only obligations will
be to account for the money and other cash. After termination our only obligations under the deposit agreement will be to indemnify the
depositary and to pay fees and expenses of the depositary that we agreed to pay and we will not have any obligations thereunder to current
or former ADS holders.
Limitations on Obligations and Liability
Limits on our Obligations and the Obligations
of the Depositary; Limits on Liability to Holders of ADSs
The deposit agreement expressly limits our obligations
and the obligations of the depositary. It also limits our liability and the liability of the depositary. We and the depositary:
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are only obligated to take the actions specifically set forth in the deposit agreement without negligence or bad faith;
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are not liable if either of us is prevented or delayed by law or circumstances beyond our control from performing our obligations
under the deposit agreement;
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are not liable if either of us exercises, or fails to exercise, discretion permitted under the deposit agreement;
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are not liable for the inability of any holder of ADSs to benefit from any distribution on deposited securities that is not made available
to holders of ADSs under the terms of the deposit agreement, or for any special, consequential or punitive damages for any breach of the
terms of the deposit agreement;
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are not liable for any tax consequences to any holders of ADSs on account of their ownership of ADSs;
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have no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the deposit agreement on the ADS holders’
behalf or on behalf of any other person; and
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may rely upon any documents we believe in good faith to be genuine and to have been signed or presented by the proper person.
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In the deposit agreement, we and the depositary
agree to indemnify each other under certain circumstances.
Additionally, we, the depositary and each owner
and holder, to the fullest extent permitted by applicable law, waives the right to a jury trial in an action against us or the depositary
arising out of or relating to the deposit agreement.
Requirements for Depositary Actions
Before the depositary will deliver or register
a transfer of an ADS, make a distribution on an ADS, or permit withdrawal of ordinary shares, the depositary may require:
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payment of share transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties
for the transfer of any ordinary shares or other deposited securities;
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satisfactory proof of the identity and genuineness of any signature or other information it deems necessary; and
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compliance with regulations it may establish, from time to time, consistent with the deposit agreement, including presentation of
transfer documents.
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The depositary may refuse to deliver ADSs or register
transfers of ADSs generally when the transfer books of the depositary or our transfer books are closed or at any time if the depositary
or we think it advisable to do so.
ADS Holders’ Right to Receive the Ordinary Shares
Underlying Their ADSs
ADS holders have the right to cancel their ADSs
and withdraw the underlying ordinary shares at any time except:
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when temporary delays arise because: (1) the depositary has closed its transfer books or we have closed our transfer books; (2) the
transfer of ordinary shares is blocked to permit voting at a shareholders’ meeting; or (3) we are paying a dividend on our
ordinary shares;
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when ADS holders owe money to pay fees, taxes and similar charges; and
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when it is necessary to prohibit withdrawals in order to comply with any laws or governmental regulations that apply to ADSs or to
the withdrawal of ordinary shares or other deposited securities.
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This right of withdrawal is not limited by any
other provision of the deposit agreement.
Pre-Release of ADSs
The deposit agreement permits the depositary to
deliver ADSs before deposit of the underlying ordinary shares. This is called a pre-release of the ADSs. The depositary may also deliver
ordinary shares upon cancellation of pre-released ADSs (even if the ADSs are canceled before the pre-release transaction has been closed
out). A pre-release is closed out as soon as the underlying ordinary shares are delivered to the depositary. The depositary may receive
ADSs instead of ordinary shares to close out a pre-release. The depositary may pre-release ADSs only under the following conditions: (1) before
or at the time of the pre-release, the person to whom the pre-release is being made represents to the depositary in writing that it or
its customer owns the ordinary shares or ADSs to be deposited; (2) the pre-release is fully collateralized with cash or other collateral
that the depositary considers appropriate; and (3) the depositary must be able to close out the pre-release on not more than five
business days’ notice. In addition, the depositary will limit the number of ADSs that may be outstanding at any time as a result
of prerelease, although the depositary may disregard the limit from time to time, if it thinks it is appropriate to do so.
Direct Registration System
In the deposit agreement, all parties to the
deposit agreement acknowledge that the DRS and Profile Modification System, or Profile, will apply to uncertificated ADSs upon
acceptance thereof to DRS by DTC. DRS is the system administered by DTC under which the depositary may register the ownership of
uncertificated ADSs and such ownership will be evidenced by periodic statements sent by the depositary to the registered holders of
uncertificated ADSs. Profile is a required feature of DRS that allows a DTC participant, claiming to act on behalf of a registered
holder of ADSs, to direct the depositary to register a transfer of those ADSs to DTC or its nominee and to deliver those ADSs to the
DTC account of that DTC participant without receipt by the depositary of prior authorization from the ADS holder to register that
transfer.
In connection with and in accordance with the arrangements
and procedures relating to DRS/Profile, the parties to the deposit agreement understand that the depositary will not determine whether
the DTC participant that is claiming to be acting on behalf of an ADS holder in requesting registration of transfer and delivery described
in the paragraph above has the actual authority to act on behalf of the ADS holder (notwithstanding any requirements under the Uniform
Commercial Code). In the deposit agreement, the parties agree that the depositary’s reliance on and compliance with instructions
received by the depositary through the DRS/Profile System and in accordance with the deposit agreement will not constitute negligence
or bad faith on the part of the depositary.
Shareholder Communications; Inspection of Register of Holders
of ADSs; ADS Holder Information
The depositary will make available for ADS holders’
inspection at its office all communications that it receives from us as a holder of deposited securities that we make generally available
to holders of deposited securities. The depositary will send ADS holders copies of those communications if we ask it to. ADS holders have
a right to inspect the register of holders of ADSs, but not for the purpose of contacting those holders about a matter unrelated to our
business or the ADSs.
PLAN OF DISTRIBUTION
We are registering the ordinary shares represented
by ADSs to permit the resale of these ordinary shares represented by ADSs by the holders of these ADSs from time to time after the date
of this prospectus. We will not receive any of the proceeds from the sale by the selling shareholders of the ordinary shares represented
by ADSs. We will bear all fees and expenses incident to our obligation to register the ordinary shares represented by ADSs.
The selling shareholders may sell all or a portion
of the ordinary shares represented by ADSs beneficially owned by them and offered hereby from time to time directly or through one or
more underwriters, broker-dealers or agents. If the ordinary shares represented by ADSs are sold through underwriters or broker-dealers,
the selling shareholders will be responsible for underwriting discounts or commissions or agent’s commissions. The ordinary shares
represented by ADSs may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying
prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses
or block transactions,
|
·
|
on any national securities exchange or quotation service on which the ADSs may be listed or quoted at the time of sale;
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|
·
|
in the over-the-counter market;
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|
·
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in transactions otherwise than on these exchanges or systems or in the over-the-counter market;
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|
·
|
through the writing of options, whether such options are listed on an options exchange or otherwise;
|
|
·
|
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
·
|
block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
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|
·
|
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
·
|
an exchange distribution in accordance with the rules of the applicable exchange;
|
|
·
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privately negotiated transactions;
|
|
·
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sales pursuant to Rule 144;
|
|
·
|
broker-dealers may agree with the selling security holders to sell a specified number of such shares at a stipulated price per share;
|
|
·
|
a combination of any such methods of sale; and
|
|
·
|
any other method permitted pursuant to applicable law.
|
If the selling shareholders effect such
transactions by selling ordinary shares represented by ADSs to or through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling shareholders
or commissions from purchasers of the ordinary shares represented by ADSs for whom they may act as agent or to whom they may sell as
principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of
those customary in the types of transactions involved). In connection with sales of ordinary shares represented by ADSs or
otherwise, the selling shareholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales
of the ordinary shares represented by ADSs in the course of hedging in positions they assume. The selling shareholders may also sell
ordinary shares represented by ADSs short and deliver ordinary shares represented by ADSs covered by this prospectus to close out
short positions and to return borrowed shares in connection with such short sales. The selling shareholders may also loan or pledge
ordinary shares represented by ADSs to broker-dealers that in turn may sell such shares.
The selling shareholders may pledge or grant a
security interest in some or all of the ADSs owned by them and, if they default in the performance of their secured obligations, the pledgees
or secured parties may offer and sell the ordinary shares represented by ADSs from time to time pursuant to this prospectus or any amendment
to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act of 1933, as amended, amending, if necessary,
the list of selling shareholders to include the pledgee, transferee or other successors in interest as selling shareholders under this
prospectus. The selling shareholders also may transfer and donate the ordinary shares represented by ADSs in other circumstances in which
case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The selling shareholders and any broker-dealer
participating in the distribution of the ordinary shares represented by ADSs may be deemed to be “underwriters” within the
meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed
to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the ordinary shares represented
by ADSs is made, a prospectus supplement, if required, will be distributed which will set forth the aggregate amount of ordinary shares
represented by ADSs being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling shareholders and any discounts, commissions or concessions allowed
or reallowed or paid to broker-dealers.
Under the securities laws of some states ordinary
shares represented by ADSs may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states
ordinary shares represented by ADSs may not be sold unless such ordinary shares have been registered or qualified for sale in such state
or an exemption from registration or qualification is available and is complied with.
There can be no assurance that any selling shareholder
will sell any or all of the ordinary shares represented by ADSs registered pursuant to the registration statement, of which this prospectus
forms a part.
The selling shareholders and any other person participating
in such distribution will be subject to applicable provisions of the Exchange Act, and the rules and regulations thereunder, including,
without limitation, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the ordinary shares
represented by ADSs by the selling shareholders and any other participating person. Regulation M may also restrict the ability of any
person engaged in the distribution of the ordinary shares represented by ADSs to engage in market-making activities with respect to the
ordinary shares represented by ADSs. All of the foregoing may affect the marketability of the ordinary shares represented by ADSs and
the ability of any person or entity to engage in market-making activities with respect to the ordinary shares represented by ADSs.
We will pay all expenses of the registration of
the ordinary shares represented by ADSs, estimated to be $166,000 in total, including, without limitation, Securities and Exchange Commission
filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, that a selling shareholder
will pay all underwriting discounts and selling commissions, if any.
Once sold under the registration statement, of
which this prospectus forms a part, the ordinary shares represented by ADSs will be freely tradable in the hands of persons other than
our affiliates.
LEGAL MATTERS
The validity of our ordinary shares and certain
other matters of Danish law will be passed upon for us by Mazanti-Andersen Advokatpartnerselskab LLP, Copenhagen, Denmark. Certain matters
of U.S. federal and New York State law will be passed upon for us by Gibson, Dunn & Crutcher LLP, San Francisco, California. If the
securities are distributed in an underwritten offering, certain legal matters will be passed upon for the underwriters by counsel identified
in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Forward
Pharma A/S appearing in Forward Pharma A/S’s Annual Report (Form 20-F) for the year ended December 31, 2020, have been audited by
EY Godkendt Revisionspartnerselskab, independent registered public accounting firm, as set forth in their report thereon, included therein,
and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such
report given on the authority of such firm as experts in accounting and auditing.
The registered business address of EY Godkendt
Revisionspartnerselskab is Dirch Passers Alle 36, DK-2000 Frederiksberg, Denmark.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement
on Form F-3, including amendments and relevant exhibits and schedules, under the Securities Act covering the ordinary shares represented
by ADSs to be sold in this offering. This prospectus, which constitutes a part of the registration statement, summarizes material provisions
of contracts and other documents that we refer to in the prospectus. Since this prospectus does not contain all of the information contained
in the registration statement, you should read the registration statement and its exhibits and schedules for further information with
respect to us and our ordinary shares and the ADSs. Our SEC filings, including the registration statement, are also available to you on
the SEC’s Web site at http://www.sec.gov.
We are subject to the information reporting requirements
of the Exchange Act that are applicable to foreign private issuers, and under those requirements we file reports with the SEC. Those other
reports or other information may be inspected without charge at the locations described above. As a foreign private issuer, we are exempt
from the rules under the Exchange Act related to the furnishing and content of proxy statements, and our officers, directors and principal
shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In
addition, we are not required under the Exchange Act to file annual, quarterly and current reports and financial statements with the SEC
as frequently or as promptly as United States companies whose securities are registered under the Exchange Act. However, we file with
the SEC, within four months after the end of each fiscal year, or such applicable time as required by the SEC, an annual report on Form
20-F containing financial statements audited by an independent registered public accounting firm.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
We are allowed to incorporate by reference the
information we file with the SEC, which means that we can disclose important information to you by referring to those documents. The information
incorporated by reference is considered to be part of this prospectus. Information in this prospectus supersedes information incorporated
by reference that we filed with the SEC prior to the date of this prospectus.
We incorporate by reference into this prospectus
and the registration statement of which this prospectus is a part the information or documents listed below that we have filed with the
SEC:
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(2)
|
Our Forms 6-K filed with the SEC on January
12, 2021 (relating to Item 1 thereof and related Exhibit 99.1), April 15, 2021 (two filings), May
4, 2021, May
27, 2021, May
28, 2021, June
8, 2021, September
7, 2021, and October
12, 2021; and
|
In addition, all documents that are filed by us
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial registration statement of
which this prospectus is a part and prior to the effectiveness of such registration statement and all documents subsequently filed by
us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering (excluding any information
furnished rather than filed) shall be deemed to be incorporated by reference into this prospectus.
Notwithstanding the statements in the preceding
paragraphs, no document, report or exhibit (or portion of any of the foregoing) or any other information that we have “furnished”
to the SEC pursuant to the Exchange Act shall be incorporated by reference into this prospectus.
The information relating to us contained in this
prospectus does not purport to be comprehensive and should be read together with the information contained in the documents incorporated
or deemed to be incorporated by reference in this prospectus. As you read the above documents, you may find inconsistencies in information
from one document to another. If you find inconsistencies between the documents and this prospectus, you should rely on the statements
made in the most recent document. All information appearing in this prospectus is qualified in its entirety by the information and financial
statements, including the notes thereto, contained in the documents incorporated by reference herein.
We will provide to each person, including any beneficial
owner, to whom this prospectus is delivered, a copy of these filings, at no cost, upon written or oral request to us at the following
address:
Forward Pharma A/S
Østergade 24A, 1st floor
1100 Copenhagen K
Denmark
Tel: +45 3344 4242
E-mail: investors@forward-pharma.com
You also may access the incorporated reports and
other documents referenced above on our website at www.forward-pharma.com. The information contained on, or that can be accessed through,
our website is not part of this prospectus.
You should rely only on the information contained
or incorporated by reference in this prospectus or a prospectus supplement. We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making
an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information
appearing in this prospectus is accurate only as of the date on the front cover of this prospectus, or such earlier date, that is indicated
in this prospectus. Our business, financial condition, results of operations and prospects may have changed since that date.
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or
otherwise, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable.
ENFORCEMENT OF FOREIGN JUDGMENTS
Forward Pharma A/S is incorporated under the laws
of Denmark, and three of its subsidiaries, Forward Pharma Operations ApS, Forward Pharma GmbH and Forward Pharma FA ApS, are incorporated
under the laws of Denmark, Germany and Denmark, respectively. Substantially all of our assets are located outside the United States. On
a combined basis, the majority of our directors and officers reside outside the United States. As a result, it may not be possible for
investors to effect service of process within the United States upon such persons or to enforce judgments against them or us in U.S. courts,
including judgments predicated upon the civil liability provisions of the federal securities laws of the United States.
The United States does not have a treaty with Denmark
or Germany providing for reciprocal recognition and enforcement of judgments, other than arbitration awards, in civil and commercial matters.
Accordingly, a final judgment for the payment of money rendered by a U.S. court based on civil liability will not be directly enforceable
in Denmark or Germany. However, if the party in whose favor such final judgment is rendered brings a new lawsuit in a competent court
in Denmark, that party may submit to the Danish court the final judgment that has been rendered in the United States. A judgment by a
federal or state court in the United States will neither be recognized nor enforced by a Danish court, but such judgment may serve as
evidence in a similar action in such court. In addition, the final judgment of a U.S. court may be recognized and enforced in Germany
in compliance with certain requirements including petitioning a German court to recognize and declare such judgment enforceable. Also,
general reciprocity in respect of the mutual recognition of judgments between Germany and the U.S. court that rendered the concerned judgment
must be guaranteed, and the judgment must not violate German (international) public policy.
EXPENSES
The following is a statement of expenses in connection
with the distribution of the securities registered. All amounts shown are estimates except SEC registration fee.
Securities and Exchange Commission registration fee
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|
|
|
$
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2,935
|
|
Legal fees and expenses
|
|
|
|
$
|
69,000
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|
Accounting fees and expenses
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|
|
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$
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85,000
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|
Printing expenses
|
|
|
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$
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8,000
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|
Miscellaneous
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|
|
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$
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1,065
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Total
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|
|
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$
|
166,000
|
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The expenses listed above do not include expenses
of preparing prospectus supplements and other expenses relating to offerings of particular securities.
, 2021
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors, Officers and Employees
Our Articles of Association does not currently
provide for indemnification of our officers or directors.
We are party to indemnification agreements with
each of our officers and directors.
Item 9. Exhibits
The following exhibits are attached hereto:
Exhibit No.
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Description
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1.1(10)
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English translation of Amended and Restated Articles of Association, dated April 13, 2021.
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2.1(2)
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Registration Rights Agreement, dated September 11, 2014, between Forward Pharma A/S and each of the investors listed on Schedule A thereto.
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2.2(3)
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Deposit Agreement between the Registrant and The Bank of New York Mellon, as depositary, dated October 14, 2014.
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2.3(4)
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Letter Agreement between the Registrant and The Bank of New York Mellon, as depositary, dated May 29, 2019.
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2.4(3)
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Form of American Depositary Receipt (included in Exhibit 2.2).
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2.5(2)
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Shareholders' Agreement, dated September 8, 2014, between Nordic Biotech K/S, Nordic Biotech Opportunity Fund K/S, NB FP Investment K/S and NB FP Investment II K/S.
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4.1(1)
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Patent Transfer Agreement, dated May 4, 2010, between Forward Pharma A/S and Aditech Pharma AG.
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4.2(7)
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Addendum to Patent Transfer Agreement, dated January 17, 2017, between Forward Pharma A/S and Aditech Pharma AG.
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4.3(1)
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Form of Director and Officer Indemnification Agreement.
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4.4(5)
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Forward Pharma A/S 2014 Omnibus Equity Incentive Compensation Plan.
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4.5(6)
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Settlement and License Agreement, dated January 17, 2017, between Forward Pharma A/S, Biogen Swiss Manufacturing GmbH, Biogen International Holding Ltd. and certain other parties named therein.
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4.6(9)
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Call Option Agreement, dated as of November 22, 2017, by and among Forward Pharma A/S, FWP HoldCo ApS and Biogen Swiss Manufacturing GmbH.
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4.7(9)
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Pledge Agreement, dated as of November 22, 2017, by and among Forward Pharma A/S, FWP HoldCo ApS and Biogen Swiss Manufacturing GmbH.
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4.8(9)
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Share Purchase Agreement, dated as of November 22, 2017, by and between Forward Pharma Operations ApS and FWP HoldCo ApS.
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4.9(8)
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Asset Contribution Agreement, dated as of June 30, 2017, by and between Forward Pharma A/S and Forward Pharma Operations ApS.
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4.10(8)
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IPR Services, Administration, Funding and Novation Agreement, dated as of June 30, 2017, by and among Forward Pharma A/S, Forward Pharma Operations ApS, FWP IP ApS, Biogen Swiss Manufacturing GmbH and Biogen International Holding Limited.
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5.1
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Opinion of Mazanti-Andersen Advokatpartnerselskab LLP, counsel of Forward Pharma A/S, as to the validity of the ordinary shares.*
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23.1
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Consent of EY Godkendt Revisionspartnerselskab, Independent Registered Public Accounting Firm.*
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23.2
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Consent of of Mazanti-Andersen Advokatpartnerselskab LLP, counsel of Forward Pharma A/S (included in Exhibit 5.1).*
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24.1
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Power of Attorney (included in signature page).*
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*
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Filed Herewith.
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(1)
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Incorporated by reference from the Registrant's Registration Statement on Form F-1 filed with the SEC on August 11, 2014.
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(2)
|
Incorporated by reference from the Registrant's Amendment No. 1 to Registration Statement on Form F-1 filed with the SEC on September 12, 2014.
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(3)
|
Incorporated by reference from the Registrant's Annual Report on Form 20-F filed with the SEC on March 25, 2015.
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(4)
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Incorporated by reference from the Registrant’s Annual Report on Form 20-F filed with the SEC on April 24, 2020.
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(5)
|
Incorporated by reference from the Registrant's Registration Statement on Form S-8 filed with the SEC on April 9, 2015.
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(6)
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Incorporated by reference from the Registrant's Annual Report on Form 20-F filed with the SEC on April 18, 2017.
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(7)
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Incorporated by reference from the Registrant's Current Report on Form 6-K filed with the SEC on January 17, 2017.
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(8)
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Incorporated by reference from the Registrant's Current Report on Form 6-K filed with the SEC on September 26, 2017.
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(9)
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Incorporated by reference from the Registrant's Current Report on Form 6-K filed with the SEC on November 22, 2017.
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(10)
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Incorporated by reference from the Registrant’s Annual Report on 20-F filed with the SEC on April 14, 2021.
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The agreements included as exhibits to this registration
statement contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties
were made solely for the benefit of the other parties to the applicable agreement and (i) were not intended to be treated as categorical
statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; (ii)
may have been qualified in such agreement by disclosures that were made to the other party in connection with the negotiation of the applicable
agreement; (iii) may apply contract standards of “materiality” that are different from “materiality” under the
applicable securities laws; and (iv) were made only as of the date of the applicable agreement or such other date or dates as may be specified
in the agreement.
The Registrant acknowledges that, notwithstanding
the inclusion of the foregoing cautionary statements, the registrant is responsible for considering whether additional specific disclosures
of material information regarding material contractual provisions are required to make the statements in this registration statement not
misleading.
Item 10. Undertakings
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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i.
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To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
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ii.
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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iii.
|
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
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provided, however, that
paragraphs (a)(1)(i), (a)(1)(ii) and a(l)(iii) do not apply if the registration statement is on Form S-3 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by
the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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(2)
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That for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and this offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4)
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To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
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(5)
|
That, for the purpose of determining liability under the Securities Act to any purchaser:
|
|
i.
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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ii.
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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|
(6)
|
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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|
(7)
|
That for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
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(8)
|
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 hereof, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Copenhagen,
Denmark on this 13th day of December, 2021.
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FORWARD PHARMA A/S
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|
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By:
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/s/ Claus Bo Svendsen
|
|
|
Claus Bo Svendsen, MD, PhD
|
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTED, that each director
and officer of FORWARD PHARMA A/S whose signature appears below hereby appoints Florian Schönharting and Claus Bo Svendsen, and each
of them severally, acting alone and without the other, his/her true and lawful attorney-in-fact with full power of substitution or re-substitution,
for such person and in such person’s name, place and stead, in any and all capacities, to sign on such person’s behalf, individually
and in each capacity stated below, any and all amendments, including post-effective -amendments to this Registration Statement, and to
sign any and all additional registration statements relating to the same offering of securities of the Registration Statement that are
filed pursuant to Rule 462(b) of the Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated:
Name
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Title
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Date
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/s/ Claus Bo Svendsen
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Chief Executive Officer
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December 13, 2021
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Claus Bo Svendsen, MD, PhD
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(principal executive and financial officer)
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/s/ Florian Schönharting
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Chairman
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December 13, 2021
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Florian Schönharting, M.Sc. (Econ)
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/s/ Torsten Goesch
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Director
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December 13, 2021
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Torsten Goesch, MD, PhD, MBA
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/s/ Grant Hellier Lawrence
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Director
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December 13, 2021
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Grant Hellier Lawrence
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/s/ Jakob Mosegaard Larsen
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Director
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December 13, 2021
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Jakob Mosegaard Larsen
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/s/ Duncan Moore
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Director
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December 13, 2021
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Duncan Moore, PhD
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SIGNATURE OF AUTHORIZED REPRESENTATIVE IN
THE UNITED STATES
Pursuant to the Securities Act of 1933, as amended,
the undersigned, the duly authorized representative in the United States of Forward Pharma A/S has signed this registration statement
on December 13, 2021.
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Forward Pharma USA, LLC
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By:
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/s/ Thomas Carbone
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Name: Thomas Carbone
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Title: Vice President, Finance and Controller
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