NewAmsterdam Pharma Co N.V 20-F, filed Nov 28, 2022
NewAmsterdam Pharma Co N.V. (NAMS)
About this 20-F
NewAmsterdam Pharma Co N.V filed this 20-F on November 28, 2022, covering the fiscal year ended November 22, 2022.
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 20-F
(Mark One)
| ☐ | REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| ☐ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended
OR
| ☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| ☒ | SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Date of event requiring this shell company report: November 22, 2022
Commission File Number: 001-41562
NewAmsterdam Pharma Company N.V.
(Exact name of Registrant as specified in its charter
| Not applicable | The Netherlands | |
| (Translation of Registrant’s name into English) | (Jurisdiction of incorporation or organization) |
Gooimeer 2-35
1411 DC Naarden
The Netherlands
(Address of principal executive offices)
Michael Davidson
Tel: +31 (0) 35 206 2971
info@NewAmsterdampharma.com
Gooimeer 2-35
1411 DC Naarden
The Netherlands
(Name, Telephone, Email and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
| Ordinary shares, nominal value €0.12 per share | NAMS | The Nasdaq Stock Market LLC | ||
| Warrants to purchase ordinary shares | NAMSW | The Nasdaq Stock Market LLC |
Securities registered or to be registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the shell company report:
On November 22, 2022, the issuer had 81,559,780 ordinary shares, nominal value €0.12 per share, outstanding.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes ☐ No ☐
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☐ No ☒
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer, or an emerging growth company. See definition of “accelerated filer,” “large accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | ☐ | Accelerated filer | ☐ | Non-accelerated filer | ☐ | |||||
| 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 13(a) of the Exchange Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
| U.S. GAAP ☐ | International Financial Reporting Standards as issued | Other ☐ | ||||||
| by the International Accounting Standards Board | ☒ |
If “Other” has been checked in response to the previous question indicate by check mark which financial statement item the registrant has elected to follow. Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☐
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| ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS |
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| ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES |
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On November 22, 2022 (the “Closing Date”), NewAmsterdam Pharma Company N.V. (f/k/a NewAmsterdam Pharma Company B.V.), a public limited liability company (naamloze vennootschap) incorporated under the laws of the Netherlands (the “Company” or “Holdco”), consummated its previously announced business combination pursuant to the Business Combination Agreement, dated as of July 25, 2022, (the “Business Combination Agreement”), by and among the Company, Frazier Lifesciences Acquisition Corporation, a Cayman Islands exempted company (“FLAC”), NewAmsterdam Pharma Holding B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands (“NewAmsterdam Pharma”), and NewAmsterdam Pharma Investment Corporation, a Cayman Islands exempted company and wholly owned subsidiary of Holdco (“Merger Sub”).
Beginning on the day immediately prior to the Closing Date and finishing on the day immediately after the Closing Date, the following transactions occurred pursuant to the terms of the Business Combination Agreement (collectively, the “Business Combination”):
| • | The shareholders of NewAmsterdam Pharma (“Participating Shareholders”) contributed all outstanding shares in the capital of NewAmsterdam Pharma to Holdco in exchange for the issuance of ordinary shares in the share capital of Holdco (“Holdco Shares”) (the “Exchange”); |
| • | Immediately after giving effect to the Exchange, the legal form of Holdco was converted from a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) to a public limited liability company (naamloze vennootschap); |
| • | After giving effect to the Exchange, Merger Sub merged with and into FLAC (the “Merger”), with FLAC surviving the merger as a wholly owned subsidiary of Holdco (the “Surviving Company”); |
| • | In connection with the Merger, each issued and outstanding ordinary share of FLAC was canceled and extinguished in exchange for a claim for a Holdco Share, and such claim was then contributed into Holdco against the issuance of a corresponding Holdco Share; |
| • | Immediately following the Merger, each outstanding warrant to purchase a Class A ordinary share, par value $0.0001 per share, of FLAC became a warrant to purchase one Holdco Share, on the same contractual terms (“Holdco Warrants”); |
| • | Each NewAmsterdam Pharma option that was outstanding and unexercised (“NewAmsterdam Pharma Options”) remained outstanding, and to the extent unvested, such option will continue to vest in accordance with its applicable terms, and at the time of the Exchange, such NewAmsterdam Pharma Options became options to purchase, and will when exercised be settled in Holdco Shares; and |
| • | On the day following the Closing Date, the Surviving Company changed its jurisdiction of incorporation by deregistering as a Cayman Islands exempted company and domesticated as a corporation incorporated under the laws of the State of Delaware. |
Upon the achievement of a certain clinical development milestone, Holdco will issue to the Participating Shareholders (including Saga Investments Coöperatief U.A. and Mitsubishi Tanabe Pharma Corporation for this purpose) and holders of options to purchase shares of NewAmsterdam Pharma prior to the Closing, who were directors, officers, employees or consultants of NewAmsterdam Pharma as of the date of the Business Combination Agreement (the “Participating Optionholders”) and who are at the time of achievement of such milestone still providing services to Holdco or its subsidiaries, 1,886,137 additional Holdco Shares (the “Earnout Shares”), which in the case of the Participating Optionholders will take the form of awards of restricted stock units under Holdco’s long-term incentive plan. The development milestone consists of the achievement and public announcement of Positive Phase 3 Data (as defined in the Business Combination Agreement) for each of NewAmsterdam Pharma’s BROADWAY clinical trial and BROOKLYN clinical trial at any time during the period beginning on the Closing Commencement Date and ending on the date that is five years after the Final Closing Date. As a result, no Earnout Shares will be issuable if the applicable milestone is not achieved within five years of the Merger.
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Prior to the Business Combination, the Company did not conduct any material activities other than those incident to its formation and the matters contemplated by the Business Combination Agreement, such as the making of certain required securities law filings, and the establishment of Merger Sub. Upon the closing of the Business Combination, the Company became the direct parent of NewAmsterdam Pharma.
On July 25, 2022, in connection with the execution of the Business Combination Agreement, FLAC and Holdco also entered into subscription agreements (the “Subscription Agreements”) with certain investors (each, a “PIPE Investor”), pursuant to which the PIPE Investors agreed to subscribe for and purchase from Holdco, and Holdco agreed to issue and sell to such PIPE Investors, an aggregate of 23,460,000 Holdco Shares at $10.00 per share for gross proceeds of $234.6 million (the “PIPE Financing”).
The Holdco Shares and the warrants to purchase ordinary shares of Holdco received in exchange for the warrants issued in connection with FLAC’s initial public offering (the “Public Warrants”) are trading on The Nasdaq Stock Market LLC (“Nasdaq”) under the symbols “NAMS” and “NAMSW,” respectively.
Except as otherwise indicated or required by context, references in this Shell Company Report on Form 20-F (the “Report”) to “we,” “us,” “our,” “Holdco” or the “Company” refer to NewAmsterdam Pharma Company N.V., a public limited liability company (naamloze vennotschap) incorporated under the laws of the Netherlands, and its consolidated subsidiaries.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Report contains forward-looking statements. Forward-looking statements provide Holdco’s current expectations or forecasts of future events. Forward-looking statements include statements about Holdco’s expectations, beliefs, plans, objectives, intentions, assumptions and other statements that are not historical facts. Words or phrases such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “objective,” “ongoing,” “plan,” “potential,” “predict,” “project,” “should,” “will” and “would,” or similar words or phrases, or the negatives of those words or phrases, may identify forward-looking statements, but the absence of these words does not necessarily mean that a statement is not forward-looking. Examples of forward-looking statements in this Report include, but are not limited to, statements regarding Holdco’s disclosure concerning NewAmsterdam Pharma’s operations, cash flows, financial position and dividend policy.
Forward-looking statements appear in a number of places in this Report or the Proxy Statement/Prospectus (as defined below) incorporated by reference herein including, without limitation, in the sections titled “NewAmsterdam Pharma’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business of NewAmsterdam Pharma and Certain Information About NewAmsterdam Pharma.” Forward-looking statements in this Report and in any document incorporated by reference in this Report may include, for example, statements about:
| • | the estimated or anticipated future results and benefits of the Company following the Business Combination; |
| • | Holdco’s public securities’ potential liquidity and trading; |
| • | Holdco’s ability to raise financing in the future; |
| • | projected financial information, including assumptions about the efficacy of Holdco’s product candidate, reimbursement and anticipated market size and market opportunity; |
| • | Holdco’s dependence on the success of its product candidate, obicetrapib, including obtaining of regulatory approval to market obicetrapib; |
| • | Holdco’s ability to attract and retain senior management and key scientific personnel; |
| • | Holdco’s limited experience in marketing or distributing products; |
| • | managing the risks related to Holdco’s international operations; |
| • | Holdco’s ability to achieve the broad degree of physician adoption and use and market acceptance necessary for commercial success, if its product candidate obtains regulatory approval; |
| • | Holdco’s reliance on third parties for all aspects of the manufacturing of obicetrapib for clinical trials; and |
| • | Holdco’s efforts to obtain, protect or enforce its patents and other intellectual property rights related to Holdco’s product candidate. |
Forward-looking statements are subject to known and unknown risks and uncertainties and are based on potentially inaccurate assumptions that could cause actual results to differ materially from those expected or implied by the forward-looking statements. Actual results could differ materially from those anticipated in forward-looking statements for many reasons, including the factors described in the section titled “Item 3.B. Risk Factors” in this Report. Accordingly, you should not rely on these forward-looking statements, which speak only as of the date of this Report or the date they were made, if earlier. Holdco undertakes no obligation to publicly revise any forward-looking statement to reflect circumstances or events after the date of this Report or to reflect the occurrence of unanticipated events. You should, however, review the factors and risks that Holdco describes in the reports it will file from time to time with the SEC.
In addition, statements that “Holdco believes” and similar statements reflect Holdco’s beliefs and opinions on the relevant subject. These statements are based on information available to Holdco at the time Holdco made such
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statements. While Holdco believes that information provides a reasonable basis for these statements, that information may be limited or incomplete. Holdco’s statements should not be read to indicate that it has conducted an exhaustive inquiry into, or review of, all relevant information. These statements are inherently uncertain, and you are cautioned not to unduly rely on these statements.
Although Holdco believes the expectations reflected in the forward-looking statements were reasonable at the time made, it cannot guarantee future results, level of activity, performance or achievements. Moreover, neither Holdco nor any other person assumes responsibility for the accuracy or completeness of any of these forward-looking statements. You should carefully consider the cautionary statements contained or referred to in this section in connection with the forward-looking statements contained in this Report or any document incorporated by reference herein, and any subsequent written or oral forward-looking statements that may be issued by Holdco or persons acting on its behalf.
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| ITEM 1. | IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS |
A. Directors and Senior Management
Information regarding the directors and senior management of the Company after the closing of the Business Combination is included in the definitive proxy statement/prospectus (the “Proxy Statement/Prospectus”) filed pursuant to Rule 424(b)(3) with the Securities and Exchange Commission (the “SEC”) by Holdco on October 18, 2022 (File No. 333-266510), under the section titled “Management of Holdco Following the Business Combination” and is incorporated herein by reference.
Each of these directors and executive officers named in the Proxy Statement/Prospectus were appointed to such roles on November 21, 2022.
B. Advisers
Covington & Burling LLP, The New York Times Building, 620 Eighth Avenue, New York, NY 10018, has acted as U.S. counsel for Holdco and NewAmsterdam Pharma and will continue to act as U.S. counsel to Holdco following the closing of the Business Combination.
NautaDutilh N.V., Beethovenstraat 400 | 1082 PR Amsterdam, Netherlands, has acted as counsel for Holdco and NewAmsterdam Pharma with respect to Dutch law and will continue to act as counsel to Holdco with respect to Dutch law following the closing of the Business Combination.
C. Auditors
Deloitte Accountants B.V. has acted as (i) NewAmsterdam Pharma’s independent registered public accounting firm as at December 31, 2021 and 2020 and for each of the two years in the period ended December 31, 2021 and (ii) the Company’s independent registered public accounting firm as at June 30, 2022, and will continue to be the Company’s independent registered public accounting firm following the closing of the Business Combination.
Deloitte Accountants B.V.’s principal business address is Wilhelminakade 1, 3072 AP Rotterdam, The Netherlands.
| ITEM 2. | OFFER STATISTICS AND EXPECTED TIMETABLE |
Not applicable.
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| ITEM 3. | KEY INFORMATION |
A. [Reserved]
B. Capitalization and Indebtedness
The following table sets forth the capitalization of the Company on an unaudited pro forma combined basis as of June 30, 2022, after giving effect to the Business Combination and the PIPE Financing.
| As of June 30, 2022 |
Actual (€) in thousands |
Pro Forma Combined (€) in thousands | ||
| Cash and cash equivalents |
89,478 | €369,521 | ||
|
| ||||
| Total liabilities |
33,433 | €37,125 | ||
|
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| Share capital |
163,556 | €589,995 | ||
| Retained earnings |
19,837 | €(45,206) | ||
| Other reserves |
1,029 | €1,029 | ||
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| Total equity |
184,422 | €545,818 | ||
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| Total equity and liabilities |
217,855 | €582,943 | ||
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| * | The pro forma financial information was translated from USD to EUR using the historical closing exchange rate, as at June 30, 2022, of $1.0469 per EUR. Applying the exchange rate as of the Closing (1.0306 per EUR), the gross proceeds from the Business Combination would be approximately EUR 89.7 million in proceeds from the trust account and EUR 227.6 million from the PIPE Financing. |
C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
The risk factors related to the business and operations of Holdco and NewAmsterdam Pharma are described in the Proxy Statement/Prospectus under the sections titled “Risk Factors—Risks Related to NewAmsterdam Pharma” and “—Risks Related to Ownership of Holdco Securities,” which are incorporated herein by reference.
| ITEM 4. | INFORMATION ON THE COMPANY |
A. History and Development of the Company
The legal name of the Company is NewAmsterdam Pharma Company N.V. The Company was incorporated as a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands on June 10, 2022. As part of the Business Combination, the Company changed its legal form to a public limited liability company (naamloze vennootschap). Holdco is registered with the Dutch Trade Register under number 86649051. The address of the registered office of the Company is Gooimeer 2-35 1411 DC Naarden, the Netherlands and the telephone number of the Company is +31 (0) 35 206 2971.
To date, Holdco has not conducted any material activities other than those incident to its formation and the pending Business Combination and only has nominal assets consisting of cash and its interest in Merger Sub. See “Explanatory Note” in this Report for additional information regarding the Company and the Business Combination. Certain additional information about the Company is included in the Proxy Statement/Prospectus under the section titled “Business of Holdco before the Business Combination” and is incorporated herein by reference. The material terms of the Business Combination are described in the Proxy Statement/Prospectus under the section titled “The Business Combination,” which is incorporated herein by reference.
The Company is subject to certain of the informational filing requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Since the Company is a “foreign private issuer,” it is exempt from the rules and regulations under the Exchange Act prescribing the furnishing and content of proxy statements, and the officers, directors and principal shareholders of the Company are exempt from the reporting and “short-swing”
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profit recovery provisions contained in Section 16 of the Exchange Act with respect to their purchase and sale of Holdco Shares. In addition, the Company is not required to file reports and financial statements with the SEC as frequently or as promptly as U.S. public companies whose securities are registered under the Exchange Act. However, the Company is required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm. The SEC maintains a website at http://www.sec.gov that contains reports and other information that the Company files with or furnishes electronically to the SEC.
The website address of the Company is www.newamsterdampharma.com. The information contained on the website does not form a part of, and is not incorporated by reference into, this Report.
B. Business Overview
Prior to the Business Combination, the Company did not conduct any material activities other than those incidental to its formation and the matters contemplated by the Business Combination Agreement, such as the making of certain required securities law filings and the establishment of certain subsidiaries. Upon the closing of the Business Combination, the Company became the direct parent of, and conducts its business through, NewAmsterdam Pharma, a clinical-stage biopharmaceutical company developing oral, non-statin medicines for patients at high risk of cardiovascular disease.
Information regarding the business of NewAmsterdam Pharma is included in the Proxy Statement/Prospectus under the sections titled “Business of NewAmsterdam Pharma and Certain Information about NewAmsterdam Pharma” and “NewAmsterdam Pharma’s Management’s Discussion and Analysis of Financial Condition and Results of Operations,” which are incorporated herein by reference.
C. Organizational Structure
Upon the closing of the Business Combination, NewAmsterdam Pharma became a direct, wholly-owned subsidiary of the Company. The organizational chart of the Company following the Business Combination is included on page 36 of the Proxy Statement/Prospectus under the section entitled “Summary of this Proxy Statement/Prospectus—The Business Combination—Organizational Structure” and is incorporated herein by reference.
D. Property, Plants and Equipment
Neither Holdco nor NewAmsterdam Pharma owns any real property. Information regarding real property leased by NewAmsterdam Pharma is included in the Proxy Statement/Prospectus under the section titled “Business of NewAmsterdam Pharma and Certain Information about NewAmsterdam Pharma—Facilities” and is incorporated herein by reference.
| ITEM 4A. | UNRESOLVED STAFF COMMENTS |
None.
| ITEM 5. | OPERATING AND FINANCIAL REVIEW AND PROSPECTS |
Following and as a result of the Business Combination, the business of the Company is conducted through NewAmsterdam Pharma, its direct, wholly-owned subsidiary, as well as the direct, wholly owned subsidiaries of NewAmsterdam Pharma.
The discussion and analysis of the financial condition and results of operations of NewAmsterdam Pharma is included in the Proxy Statement/Prospectus under the section titled “NewAmsterdam Pharma’s Management’s Discussion and Analysis of Financial Condition and Results of Operations,” which is incorporated herein by reference.
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| ITEM 6. | DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES |
A. Directors and Senior Management
Information regarding the directors and executive officers of the Company after the closing of the Business Combination is included in the Proxy Statement/Prospectus under the section titled “Management of Holdco Following the Business Combination” and is incorporated herein by reference.
B. Compensation
Information regarding the compensation of the directors and executive officers of the Company after the closing of the Business Combination, including a summary of the Company’s Holdco Long-Term Incentive Plan and Holdco Rollover Option Plan, which were approved by the shareholders of the Company on November 21, 2022, is included in the Proxy Statement/Prospectus under the section titled “Management of Holdco Following the Business Combination” and is incorporated herein by reference.
On November 21, 2022, Holdco granted (i) options to purchase an aggregate of 3,412,264 Holdco Shares to certain of its directors and (ii) options to purchase an aggregate of 2,244,383 Holdco Shares to certain of its executive officers (excluding awards granted to executive officers who also serve as directors). Such options each have an expiration date of ten years from the date of grant and an exercise price of $10.00.
Upon the consummation of the Business Combination, the Company entered into indemnification agreements with its directors and executive officers and service agreements with its directors. Information regarding such indemnification and service agreements is included in the Proxy Statement/Prospectus under the section titled “Management of Holdco Following the Business Combination—Compensation—Holdco Director Indemnification Agreements” and “—Holdco Directors Service Agreements” and is incorporated herein by reference.
C. Board Practices
Information regarding the board of directors of the Company subsequent to the Business Combination is included in the Proxy Statement/Prospectus under the section titled “Management of Holdco Following the Business Combination” and is incorporated herein by reference.
D. Employees
Following and as a result of the Business Combination, the business of the Company is conducted through NewAmsterdam Pharma, its direct, wholly-owned subsidiary, as well as the direct, wholly owned subsidiaries of NewAmsterdam Pharma.
Information regarding the employees of Holdco and NewAmsterdam Pharma is included in the Proxy Statement/Prospectus under the section titled “Business of NewAmsterdam Pharma and Certain Information about NewAmsterdam Pharma—Employees and Human Capital Resources” and is incorporated herein by reference.
E. Share Ownership
Information regarding the ownership of Holdco Shares by the Company’s directors and executive officers is set forth in Item 7.A of this Report and the Proxy Statement/Prospectus under the section titled “Beneficial Ownership of Holdco Securities.”
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| ITEM 7. | MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS |
A. Major Shareholders
The following table sets forth information relating to the beneficial ownership of the Company’s Holdco Shares as of the Closing Date by:
| • | each person, or group of affiliated persons, known by Holdco to beneficially own more than 5% of outstanding Holdco Shares; |
| • | each executive officer or director of Holdco post-closing of the Business Combination; and |
| • | all executive officers and directors of Holdco post-closing of the Business Combination, as a group. |
The SEC has defined “beneficial ownership” of a security to mean the possession, directly or indirectly, of voting power and/or investment power over such security. A shareholder is also deemed to be, as of any date, the beneficial owner of all securities that such shareholder has the right to acquire within 60 days after that date through (i) the exercise of any option, warrant or right, (ii) the conversion of a security, (iii) the power to revoke a trust, discretionary account or similar arrangement, or (iv) the automatic termination of a trust, discretionary account or similar arrangement. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, ordinary shares subject to options or other rights (as set forth above) held by that person that are currently exercisable, or will become exercisable within 60 days thereafter, are deemed outstanding, while such shares are not deemed outstanding for purposes of computing percentage ownership of any other person. To Holdco’s knowledge, each person named in the table has sole voting and investment power with respect to all of the Holdco Ordinary Shares shown as beneficially owned by such person, except as otherwise indicated in the table or footnotes below.
The percentage of Holdco Shares beneficially owned is computed on the basis of 81,559,780 Holdco Shares outstanding on the Closing Date, after giving effect to the Business Combination and the PIPE Financing, and does not include 4,767,000 Holdco Shares issuable upon the exercise of the Holdco Warrants that remain outstanding following the Business Combination.
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To the Company’s knowledge, no Holdco Shares beneficially owned by any executive officer, director or director nominee have been pledged as security. Unless otherwise stated, the address for each beneficial owner is Gooimeer 2-35, 1411 DC Naarden, The Netherlands.
| Beneficial Owner | Number of Holdco Shares |
Percentage of All Ordinary Shares |
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| Executive Officers, Directors and Director Nominees |
||||||||
| Juliette Audet (1) |
6,635,391 | 8.14 | % | |||||
| Michael Davidson, M.D. (2) |
1,467,698 | 1.79 | % | |||||
| Nicholas Downing, M.D. (3) |
— | — | ||||||
| John Kastelein, M.D., Ph.D, FESC (4) |
1,487,904 | 1.80 | % | |||||
| Louis Lange, M.D., Ph.D. (5) |
37,487 | * | ||||||
| Sander Slootweg (6) |
19,421,688 | 23.81 | % | |||||
| James N. Topper, M.D., Ph.D. (7) |
9,801,333 | 11.94 | % | |||||
| Marc Ditmarsch, M.D. (8) |
248,665 | * | ||||||
| Lina Gugucheva (9) |
343,296 | * | ||||||
| Douglas Kling (10) |
281,416 | * | ||||||
| Louise Kooij (11) |
174,470 | * | ||||||
| All executive officers and directors as a group (11 persons) |
33,263,957 | 39.44 | % | |||||
| Other 5% Shareholders |
||||||||
| Morningside Venture Investments Limited (12) |
5,065,846 | 6.21 | % | |||||
| Entities affiliated with Forbion (13) |
19,421,688 | 23.81 | % | |||||
| Saga Investments Coöperatief U.A. (14) |
4,910,000 | 6.02 | % | |||||
| Stichting Administratiekantoor NewAmsterdam Pharma (15) |
5,326,818 | 6.53 | % | |||||
| Frazier Lifesciences Sponsor LLC and affiliates (16) |
9,301,000 | 11.40 | % | |||||
| Entities affiliated with Bain Capital Life Sciences Investors, LLC (17) |
8,400,000 | 10.30 | % | |||||
| * | Indicates beneficial ownership of less than 1% of total outstanding Holdco Shares. |
| (1) | Consists of (i) 6,635,391 Holdco Shares held by Forbion Capital Fund IV Coöperatief U.A. (“Forbion IV”) inclusive of 1,500,000 Holdco Shares subscribed for in connection with the PIPE Financing. The address for Forbion IV is Gooimeer 2-35, 1411 DC Naarden, the Netherlands. Forbion IV Management B.V. (“Forbion IV Management”), the director of Forbion IV, may be deemed to have voting and dispositive power over the Holdco Shares to be held by Forbion IV. Investment decisions with respect to the Holdco Shares to be held by Forbion IV can be made by its investment committee which may delegate such powers to the authorized representatives of Forbion IV Management. Mssrs. Slootweg, van Osch, Mulder, van Houten, van Deventer, Reithinger, Kersten and Boorsma are partners of Forbion IV Management, which acts as the investment advisor to the director of Forbion IV. Ms. Audet and Mr. Slootweg are members of the investment committee of Forbion IV. Forbion IV Management disclaims beneficial ownership of the shares, except to the extent of their pecuniary interest therein. |
| (2) | Consists of (i) 189,784 Holdco Shares, (ii) options to purchase 669,135 Holdco Shares, exercisable within 60 days of November 22, 2022 and (iii) 608,779 Holdco Shares subject to forfeiture underlying depositary receipts issued by Stichting Administratiekantoor EPNAP (“STAK EPNAP”). STAK EPNAP has sole voting and investment power over the securities described in (iii) while underlying the depositary receipts and are presented here because the depositary receipts can be cancelled by the board of directors of STAK EPNAP at any time as a consequence of which the shareholder will become the beneficial owner of the securities underlying the depositary receipts. |
| (3) | Does not include Holdco Shares held by the Bain Capital Life Sciences Entities (as defined below). Dr. Downing serves as a Principal of Bain Capital Life Sciences Investors, LLC. |
| (4) | Consists of (i) 268,472 Holdco Shares held by Futurum B.V. (“Futurum”) through NAP PoolCo B.V. (“PoolCo”), (ii) 228,881 Holdco Shares underlying depositary receipts issued by STAK NAP (as defined below) which are held by Futurum through PoolCo and (iii) options to purchase 970,307 Holdco Shares held by Futurum through PoolCo and options to purchase 20,244 Holdco Shares held by Dr. Kastelein directly, each exercisable within 60 days of November 22, 2022. STAK NAP has sole voting and investment power |
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| over the securities described in (ii) underlying the depositary receipts and are presented here because the depositary receipts can be cancelled by the board of directors of STAK NAP at any time as a consequence of which the shareholder will become the beneficial owner of the securities underlying such depositary receipts. |
| (5) | Consists of options to purchase 37,487 Holdco Shares, exercisable within 60 days of November 22, 2022. |
| (6) | Consists of the Holdco Shares described in Note 13. Mr. Slootweg disclaims beneficial ownership of the shares referenced in Note 13, except to the extent of his pecuniary interest therein, if any. |
| (7) | Consists of the shares described in Note 16. Dr. Topper disclaims beneficial ownership of the shares referenced in Note 16, except to the extent of his pecuniary interest therein, if any. |
| (8) | Consists of options to purchase 241,260 Holdco Shares held by Diomedea Medical B.V. through PoolCo and options to purchase 7,405 Holdco Shares held by Dr. Ditmarsch directly, each exercisable within 60 days of November 22, 2022. |
| (9) | Consists of options to purchase 343,296 Holdco Shares, exercisable within 60 days of November 22, 2022. |
| (10) | Consists of options to purchase 281,416 Holdco Shares, exercisable within 60 days of November 22, 2022. |
| (11) | Consists of options to purchase 165,512 Holdco Shares held by LouFré Management B.V. through PoolCo and options to purchase 8,958 Holdco Shares held by Ms. Kooij directly, each exercisable within 60 days of November 22, 2022. |
| (12) | Consists of 5,065,846 Holdco Shares directly and beneficially held by Morningside Venture Investments Limited (“Morningside”), inclusive of 500,000 Holdco Shares subscribed for in connection with the PIPE Financing. Frances Anne Elizabeth Richard, Jill Marie Franklin, Peter Stuart Allenby Edwards and Cheung Ka Ho are the directors of Morningside and share voting and dispositive power with respect to the securities held by Morningside. Each of Ms. Richard, Ms. Franklin, Mr. Edwards and Mr. Ho disclaim beneficial ownership of the Holdco Shares held by Morningside except to the extent of their pecuniary interest therein. The address of Morningside is c/o THC Management Services S.A.M., 2nd Floor, Le Prince de Galles, 3-5 Avenue des Citronniers, MC 98000, Monaco. |
| (13) | Consists of (i) 6,635,391 Holdco Shares held by Forbion IV, inclusive of 1,500,000 Holdco Shares subscribed for in connection with the PIPE Financing, (ii) 4,543,897 Holdco Shares held by Forbion Growth Opportunities Fund I Coöperatief U.A. (“Forbion Growth”), inclusive of 1,500,000 Holdco Shares subscribed for in connection with the PIPE Financing and (iii) 7,812,300 Holdco Shares held by Forbion Capital Fund II Coöperatief U.A. (“Forbion II”) through PoolCo, including 2,828,380 Holdco Shares underlying depositary receipts issued by STAK NAP. The address for the Forbion entities is Gooimeer 2-35, 1411 DC Naarden, the Netherlands. |
Forbion IV Management, the director of Forbion IV, may be deemed to have voting and dispositive power over the shares held by Forbion IV. Investment decisions with respect to the Holdco Shares to be held by Forbion IV can be made by its investment committee which may delegate such powers to the authorized representatives of Forbion IV Management. Mssrs. Slootweg, van Osch, Mulder, van Houten, van Deventer, Reithinger, Kersten and Boorsma are partners of Forbion IV Management, which acts as the investment advisor to the director of Forbion IV. Mr. Slootweg is a member of the board of directors and is a partner of Forbion IV Management and a member of the investment committee of Forbion IV. Forbion IV Management disclaims beneficial ownership of the shares, except to the extent of their pecuniary interest therein.
Forbion Growth Management B.V. (“Growth Management”), the director of Forbion Growth, may be deemed to have voting and dispositive power over the shares held by Forbion Growth. Investment decisions with respect to the Holdco Shares to be held by Forbion Growth can be made by its investment committee which may delegate such powers to the authorized representatives of Growth Management. Mssrs. Slootweg, van Osch, Mulder, van Houten, van Deventer, Reithinger, Kersten, Joustra and Boorsma are partners of Growth Management, which acts as the investment advisor to the director of Forbion Growth. Mr. Slootweg is a member of the board of directors and is a partner of Growth Management and a member of the investment committee of Forbion Growth. Growth Management disclaims beneficial ownership of the shares, except to the extent of their pecuniary interest therein.
Forbion II Management B.V. (“Forbion II Management”), the director of Forbion II, may be deemed to have voting and dispositive power over the shares held by Forbion II. Investment decisions with respect to the shares held by Forbion II can be made by its investment committee which may delegate such powers to the
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authorized representatives of Forbion II Management. Mssrs. Slootweg, van Osch, Mulder, van Deventer, Reithinger, and Bergstein are (ex)partners of Forbion II Management, which may act as the investment advisor to the director of Forbion II. Mr. Slootweg is a member of the board of directors and is a partner of Forbion II Management and a member of the investment committee of Forbion II. Forbion II Management and its partners disclaims beneficial ownership of the shares, except to the extent of their pecuniary interest therein. 4,983,920 Holdco Shares are held by Forbion II through PoolCo.
BioGeneration II Management B.V. (“BGM II”) is the director of (1) BioGeneration Ventures II B.V., which, through PoolCo, holds 415,873 Holdco Shares underlying depositary receipts issued by STAK NAP, (2) BGV II Coöperatief U.A. which, through PoolCo, holds 2,269 Holdco Shares underlying depositary receipts issued by STAK NAP, and (3) BioGeneration II Co-Invest B.V. which through PoolCo holds 11,958 Holdco Shares underlying depositary receipts issued by STAK NAP. BGM II is an indirect joint venture between the BGM investment team and the partners of Forbion II Management. Mr. Slootweg is a member of the board of directors and is a partner of Forbion II and a member of the investment committee of BGM II. BGM II disclaims beneficial ownership of the shares, except to the extent of their pecuniary interest therein.
| (14) | The address of the Saga Investments Coöperatief U.A. is Minervum 7061, 4817 ZK Breda, the Netherlands. |
| (15) | Stichting Administratiekantoor NewAmsterdam Pharma (“STAK NAP”) is a Dutch foundation which holds certain securities of NewAmsterdam Pharma on behalf of the holders of depositary receipts issued by STAK NAP, including certain shareholders of NewAmsterdam Pharma and after the Closing, will hold the Holdco Shares following the Exchange. STAK NAP has issued depositary receipts to the participants with each depositary receipt representing the relevant underlying security. Pursuant to STAK NAP’s governing documents, STAK NAP, through its board, has the power to exercise all rights associated with the NewAmsterdam Pharma securities underlying the depositary receipts and after the Closing, the Holdco Shares. As a result, STAK NAP may be deemed to have voting power over such securities. 2,828,380 Holdco Shares owned by Forbion II are underlying the depositary receipts held through STAK NAP. Forbion International Management B.V. (“FIM”) is the sole director of STAK NAP and may be deemed to have voting and dispositive power of the Holdco Shares held by STAK NAP. Mssrs. Slootweg, Van Osch, Reithinger, Mulder, Van Houten and Boorsma are the directors of FIM. FIM and its directors disclaim beneficial ownership of the shares. |
| (16) | Consists of 3,801,000 Holdco Shares held by Frazier Lifesciences Sponsor LLC (the “Sponsor”). The Sponsor is governed by a board of managers, consisting of James N. Topper, David Topper and Gordon Empey. The sole member of the Sponsor is Frazier Life Sciences X, L.P. FHMLS X, L.P. is the general partner of Frazier Life Sciences X, L.P. and FHMLS X, L.L.C. is the general partner of FHMLS X, L.P. Patrick J. Heron and James N. Topper are the members of FHMLS X, L.L.C. Each of Mr. Heron, Mr. James Topper, Mr. David Topper, and Mr. Empey disclaims beneficial ownership of the shares other than to the extent of any pecuniary interest they may have therein, directly or indirectly. |
Also included in the total number is (i) 1,000,000 Holdco Shares held by Frazier Life Sciences X, L.P., (ii) 2,000,000 Holdco Shares subscribed for by Frazier Life Sciences X, L.P. in connection with the PIPE Financing, (iii) 500,000 Holdco Shares subscribed for by Frazier Life Sciences XI, L.P. in connection with the PIPE Financing, (iv) 1,000,000 Holdco Shares subscribed for by Frazier Life Sciences Public Fund, L.P., in connection with the PIPE Financing and (v) 1,000,000 Holdco Shares subscribed for by Frazier Life Sciences Overage Fund, L.P. in connection with the PIPE Financing. In addition, also included in the total number is (i) 167,000 warrants to purchase Holdco Shares held by the Sponsor and (ii) 333,333 warrants to purchase Holdco Shares held by Frazier Life Sciences X, L.P., each exercisable for one Holdco Share at a price of $11.50 per share beginning on December 22, 2022. FHMLS XI, L.P. is the general partner of Frazier Life Sciences XI, L.P. and FHMLS XI, L.L.C. is the general partner of FHMLS XI, L.P. Patrick J. Heron, Dan Estes and James N. Topper are the members of FHMLS XI, L.L.C. FHMLSP, L.P. is the general partner of Frazier Life Sciences Public Fund, L.P. and FHMLSP, L.L.C. is the general partner of FHMLSP, L.P. Patrick J. Heron, James N. Topper, Albert Cha and James Brush are the members of FHMLSP, L.L.C. FHMLSP Overage, L.P., is the general partner of Frazier Life Sciences Overage Fund,
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L.P. and FHMLSP Overage, L.L.C. is the general partner of FHMLSP Overage, L.P. Patrick J. Heron, James N. Topper, Albert Cha and James Brush are the members of FHMLSP Overage, L.L.C. Each of FHMLS X, L.P., FHMLS X, L.L.C., FHMLS XI, L.P., FHMLS XI, L.L.C., FHMLSP, L.P., FHMLSP, L.L.C., FHMLSP Overage, L.P., FHMLSP Overage, L.L.C., Mr. Cha, Mr. Brush, Mr. Heron, Mr. Estes and Mr. James Topper disclaims beneficial ownership of the shares other than to the extent of any pecuniary interest they may have therein, directly or indirectly.
| (17) | Consists of (i) 4,000,000 Holdco Shares held by BCLS II Investco, LP (“BCLS II Investco”) subscribed for in connection with the PIPE Financing, (ii) 4,000,000 Holdco Shares held by BCLS Fund III Investments, LP (“BCLS Fund III”) subscribed for in connection with the PIPE Financing, (iii) 267,429 Holdco Shares held by Bain Capital Life Sciences Fund II, L.P. (“BCLS Fund II”) and (iv) 32,571 Holdco Shares held by BCIP Life Sciences Associates, LP (“BCIPLS” and, together with BCLS II Investco, BCLS Fund III and BCLS Fund II, the “Bain Capital Life Sciences Entities”). Bain Capital Life Sciences Investors, LLC (“BCLSI”) (a) is the manager of Bain Capital Life Sciences Investors II, LLC, which is the general partner of BCLS Fund II, which is the manager of BCLS II Investco (GP), LLC, which is the general partner of BCLS II Investco, (b) is the manager of Bain Capital Life Sciences III General Partner, LLC, which is the general partner of Bain Capital Life Sciences Fund III, L.P., which is the member of BCLS Fund III Investments GP, LLC, which is the general partner of BCLS Fund III, and (c) governs the investment strategy and decision-making process with respect to investments held by BCIPLS. As a result, BCLSI may be deemed to share voting and dispositive power with respect to the securities held by the Bain Capital Life Sciences Entities. In addition, also included in the total number is 100,000 warrants to purchase Holdco Shares held by certain Bain entities, each exercisable for one Holdco Share at a price of $11.50 per share beginning on December 22, 2022. The address of the Bain Capital Life Sciences entities is c/o Bain Capital Life Sciences, LP, 200 Clarendon Street, Boston, MA 02116. |
B. Related Party Transactions
Information regarding certain related party transactions is included in the Proxy Statement/Prospectus under the section titled “Certain Relationships and Related Person Transactions” and is incorporated herein by reference.
C. Interests of Experts and Counsel
Not applicable.
| ITEM 8. | FINANCIAL INFORMATION |
A. Consolidated Statements and Other Financial Information
See Item 18 of this Report for consolidated financial statements and other financial information.
B. Significant Changes
A discussion of significant changes since June 30, 2022, respectively, is provided under Item 4 of this Report and is incorporated herein by reference.
| ITEM 9. | THE OFFER AND LISTING |
A. Offer and Listing Details
Nasdaq Listing of Holdco Ordinary Shares and Holdco Public Warrants
The Holdco Shares and Public Warrants are listed on the Nasdaq Capital Market under the symbols “NAMS” and “NAMSW,” respectively. Holders of Holdco Shares and Public Warrants should obtain current market quotations for their securities. There can be no assurance that the Holdco Shares and/or Public Warrants will remain listed on Nasdaq. If the Company fails to comply with the Nasdaq listing requirements, the Holdco Shares and/or Public Warrants could be delisted from Nasdaq. A delisting of the Holdco Shares will likely affect the liquidity of the Holdco Shares and could inhibit or restrict the ability of the Company to raise additional financing.
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Lock-up Agreements
Information regarding the lock-up restrictions applicable to the Holdco Shares is included in the Proxy Statement/Prospectus under the section titled “The Business Combination Agreement and Ancillary Documents—Ancillary Documents—Lock-Up Agreement” and is incorporated herein by reference.
Investor Rights Agreement
Information regarding the transfer restrictions applicable to the Holdco Shares pursuant to the investor rights agreements is included in the Proxy Statement/Prospectus under the section titled “The Business Combination Agreement and Ancillary Documents—Ancillary Documents—Investor Rights Agreement” and is incorporated herein by reference.
Holdco Public Warrants
Upon the completion of the Business Combination, there were 4,600,000 Public Warrants outstanding. The Public Warrants, which entitle the holder to purchase one Holdco Share at an exercise price of $11.50 per share, will become exercisable 30 days after the completion of the Business Combination. The Public Warrants will expire five years after the completion of the Business Combination or earlier upon redemption or liquidation in accordance with their terms. Additional information regarding the Public Warrants is included in the Proxy Statement/Prospectus under the section titled “Description of Holdco Securities—Holdco Warrants.”
B. Plan of Distribution
Not applicable.
C. Markets
The Holdco Shares and Public Warrants are listed on the Nasdaq Capital Market under the symbols “NAMS” and ”NAMSW,” respectively. There can be no assurance that the Holdco Shares and/or Public Warrants will remain listed on Nasdaq. If the Company fails to comply with the Nasdaq listing requirements, the Holdco Shares and/or Public Warrants could be delisted from Nasdaq. A delisting of the Holdco Shares will likely affect the liquidity of the Holdco Shares and could inhibit or restrict the ability of the Company to raise additional financing.
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
| ITEM 10. | ADDITIONAL INFORMATION |
A. Share Capital
Holdco is authorized to issue 400,000,000 Holdco Ordinary Shares, each with a nominal value of €0.12.
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As of November 22, 2022, subsequent to the closing of the Business Combination, there were 81,559,780 Holdco Shares outstanding. Additionally, there were 4,767 Holdco Warrants outstanding, each of which entitle the holder to purchase one Holdco Share at an exercise price of $11.50 per share. As of November 22, 2022, Holdco held no Holdco Shares as treasury shares.
Information regarding the Company’s share capital is included in the Proxy Statement/Prospectus under the section titled “Description of Holdco Securities” and is incorporated herein by reference.
Information regarding events which have changes the amount of issued capital is included in the Proxy Statement/Prospectus under the section titled “Certain Relationships and Related Person Transactions—Holdco Relationships and Related Person Transactions.”
B. Memorandum and Articles of Association
Information regarding certain material provisions of the articles of association of the Company is included in the Proxy Statement/Prospectus under the sections titled “Description of Holdco Securities” and “Comparison of Corporate Governance and Shareholder Rights” and is incorporated herein by reference.
C. Material Contracts
Information regarding certain material contracts is included in the Proxy Statement/Prospectus under the sections titled “The Business Combination Agreement and Ancillary Documents,” “Certain Relationships and Related Person Transactions,” and “Business of NewAmsterdam Pharma and Certain Information About NewAmsterdam Pharma,” and is incorporated herein by reference.
D. Exchange Controls and Other Limitations Affecting Security Holders
Under Dutch law, there are no exchange controls applicable to the transfer to persons outside of the Netherlands of dividends or other distributions with respect to, or of the proceeds from the sale of, shares of a Dutch company, subject to applicable restrictions under sanctions and measures, including those concerning export control, pursuant to European Union regulations, the Sanctions Act 1977 (Sanctiewet 1977) or other legislation, applicable anti-boycott regulations, applicable anti-money-laundering regulations and similar rules and provided that, under certain circumstances, payments of such dividends or other distributions must be reported to the Dutch Central Bank at their request for statistical purposes. There are no special restrictions in Holdco’s articles of association or Dutch law that limit the right of shareholders who are not citizens or residents of the Netherlands to hold or vote shares.
E. Taxation
Information regarding certain U.S. tax consequences of owning and disposing of Holdco Shares and Public Warrants is included in the Proxy Statement/Prospectus under the section titled “Material Tax Considerations” and is incorporated herein by reference.
F. Dividends and Paying Agents
Holdco has never declared or paid any cash dividends on its shares. It currently intends to retain all available funds and any future earnings for use in the operation of its business and does not anticipate paying any dividends on the Holdco Shares in the foreseeable future.
Under Dutch law, Holdco may only pay dividends and other distributions from its reserves to the extent Holdco’s shareholders’ equity (eigen vermogen) exceeds the sum of Holdco’s paid-in and called-up share capital plus the
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reserves it must maintain under Dutch law or Holdco’s articles of association and (if it concerns a distribution of profits) after adoption of its statutory annual accounts by the general meeting of Holdco from which it appears that such dividend distribution is allowed. Subject to those restrictions, any future determination to pay dividends or other distributions from Holdco’s reserves will be at the discretion of the Company’s board of directors and will depend upon a number of factors, including its results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors the Company’s board of directors deems relevant.
Under Holdco’s articles of association, the Company’s board of directors may decide that all or part of the profits shown in the Company’s adopted statutory annual accounts will be added to Holdco’s reserves. After reservation of any such profits, any remaining profits will be at the disposal of the general meeting of Holdco at the proposal of the Company’s board of directors for distribution on Holdco Shares, subject to applicable restrictions of Dutch law. The Company’s board of directors is permitted, subject to certain requirements and applicable restrictions of Dutch law, to declare interim dividends without the approval of the general meeting of Holdco. Dividends and other distributions will be made payable no later than a date determined by Holdco. Claims to dividends and other distributions not made within five years from the date that such dividends or distributions became payable will lapse and any such amounts will be considered to have been forfeited to the Company (verjaring).
Since the Company is a holding company, its ability to pay dividends will be dependent upon the financial condition, liquidity and results of operations of, and the receipt of dividends, loans or other funds from, its subsidiaries. The subsidiaries are separate and distinct legal entities and have no obligation to make funds available to the Company. In addition, there are various statutory, regulatory and contractual limitations and business considerations on the extent, if any, to which the subsidiaries of the Company may pay dividends, make loans or otherwise provide funds to the Company.
G. Statement by Experts
The consolidated financial statements of FLAC as of December 31, 2021 and 2020, for the year ended December 31, 2021 and for the period from October 7, 2020 (inception) to December 31, 2020, appearing in this Report have been audited by WithumSmith+Brown, PC, an independent registered public accounting firm, as set forth in their report thereon, and are incorporated by reference herein in reliance upon such report given on the authority of such firm as experts in auditing and accounting. The address of WithumSmith+Brown, PC is 1411 Broadway 9th Floor, New York, NY 10018.
The financial statements of NewAmsterdam Pharma as at December 31, 2021 and 2020, and for each of the two years in the period ended December 31, 2021, incorporated by reference in this Form 20-F have been audited by Deloitte Accountants B.V., an independent registered public accounting firm, as stated in their report. Such financial statements are incorporated by reference in reliance upon the report of such firm given their authority as experts in accounting and auditing.
The financial statements of NewAmsterdam Pharma Company B.V. as at June 30, 2022, incorporated by reference in this Form 20-F have been audited by Deloitte Accountants B.V., an independent registered public accounting firm, as stated in their report. Such financial statements are incorporated by reference in reliance upon the report of such firm given their authority as experts in accounting and auditing.
H. Documents on Display
Documents concerning the Company referred to in this Report may be inspected at the principal executive offices of the Company at Gooimeer 2-35, 1411 DC Naarden, the Netherlands.
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The Company is subject to certain of the informational filing requirements of the Exchange Act. Since the Company is a “foreign private issuer,” it is exempt from the rules and regulations under the Exchange Act prescribing the furnishing and content of proxy statements, and the officers, directors and principal shareholders of the Company are exempt from the reporting and “short-swing” profit recovery provisions contained in Section 16 of the Exchange Act with respect to their purchase and sale of Holdco Shares. In addition, the Company is not required to file reports and financial statements with the SEC as frequently or as promptly as U.S. public companies whose securities are registered under the Exchange Act. However, the Company is required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm. The SEC also maintains a website at www.sec.gov that contains reports and other information that the Company files with or furnishes electronically to the SEC.
I. Subsidiary Information
Not applicable.
| ITEM 11. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS |
Information regarding quantitative and qualitative disclosure about market risk is included in the Proxy Statement/Prospectus under the section titled “NewAmsterdam Pharma’s Management’s Discussion and Analysis of Financial Condition and Results of Operations—Quantitative and Qualitative Disclosures about Market Risk” and is incorporated herein by reference.
| ITEM 12. | DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES |
Information pertaining to the Holdco Public Warrants is described under the heading “Holdco Public Warrants” in Item 9.A above and is included in the Proxy Statement/Prospectus under the section titled “Description of Holdco Securities—Holdco Warrants” and is incorporated herein by reference.
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Not applicable.
| ITEM 17. | FINANCIAL STATEMENTS |
See Item 18.
| ITEM 18. | FINANCIAL STATEMENTS |
The audited consolidated financial statements of NewAmsterdam Pharma Holding B.V. and Subsidiaries as at December 31, 2021 and 2020 and for each of the two years in the period ended December 31 , 2021 are incorporated by reference to pages F-45 through F-77 in the Proxy Statement/Prospectus.
The unaudited interim condensed consolidated financial statements of NewAmsterdam Pharma Holding B.V. and Subsidiaries as at June 30, 2022 and for the six months ended June 30, 2022 and 2021 are incorporated by reference to pages F-78 through F-93 in the Proxy Statement/Prospectus.
The audited consolidated financial statements of NewAmsterdam Pharma Company B.V. as at June 30, 2022 are incorporated by reference to pages F-95 through F-99 in the Proxy Statement/Prospectus.
The audited financial statements of FLAC are incorporated by reference to pages F-2 through F-22 in the Proxy Statement/Prospectus.
The unaudited condensed interim financial statements of FLAC for the three months ended September 30, 2022 included in the Quarterly Report on Form 10-Q filed by FLAC with the SEC on November 9, 2022 are incorporated by reference.
The unaudited pro forma condensed combined financial statements of NewAmsterdam Pharma and FLAC are attached as Exhibit 15.1 to this Report.
| ITEM 19. | EXHIBITS |
Exhibit
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| * | Filed herewith. |
| + | Indicates management contract or compensatory plan. |
| † | Certain information has been excluded from the exhibit because it both (i) is not material and (ii) would likely cause competitive harm to the Registrant if publicly disclosed. |
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SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this report on its behalf.
| NewAmsterdam Pharma Company N.V. | ||||||
| November 28, 2022 | By: | /s/ Michael Davidson | ||||
| Name: Michael Davidson Title: Chief Executive Officer | ||||||
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Exhibit 1.1
1
This is a translation into English of the official Dutch version of the deed of conversion and amendment to the articles of association of a private company with limited liability under Dutch law. Definitions included in Article 1 below appear in the English alphabetical order, but will appear in the Dutch alphabetical order in the official Dutch version. In the event of a conflict between the English and Dutch texts, the Dutch text shall prevail.
DEED OF CONVERSION AND AMENDMENT TO THE ARTICLES OF ASSOCIATION NEW AMSTERDAM PHARMA COMPANY B.V.
On this day, the twenty-first day of November two thousand and twenty-two, appeared before me, Paul Cornelis Simon van der Bijl, civil law notary in Amsterdam:
Maria Louise van der Laan, born in Jacobswoude, on the twelfth day of June nineteen hundred and ninety-four, employed at the offices of me, civil law notary, located at Beethovenstraat 400, 1082 PR Amsterdam.
The person appearing declared that the general meeting of New Amsterdam Pharma Company B.V., a private company with limited liability, having its corporate seat in Naarden (address: Gooimeer 2-35 1411 DC Naarden, trade register number: 86649051) (the “Company”), by written resolution dated the twenty-first day of November two thousand and twenty-two (the “Written Resolution”), decided to convert the Company into a public company with limited liability and to amend the Company’s articles of association in their entirety.
A copy of the Written Resolution shall be attached to this Deed as an annex.
The Company’s articles of association were initially adopted upon incorporation by a deed executed on the tenth day of June two thousand and twenty-two before a deputy of Paul Cornelis Simon van der Bijl, civil law notary in Amsterdam.
In order to carry out the abovementioned resolution, the person appearing declared to (i) convert the Company into a public company with limited liability and (ii) amend the Company’s articles of association in their entirety, as set out below:
ARTICLES OF ASSOCIATION
DEFINITIONS AND INTERPRETATION
Article 1
| 1.1 | In these articles of association the following definitions shall apply: |
| Article | An article of these articles of association. | |||
| Board | The Company’s board of directors. | |||
| Board Rules | The internal rules applicable to the Board, as drawn up by the Board. | |||
| CEO | The Company’s chief executive officer. | |||
| Chairperson | The chairperson of the Board. | |||
| Company | The company to which these articles of association pertain. | |||
| DCC | The Dutch Civil Code. | |||
| Director | A member of the Board. | |||
| Executive Director | An executive Director. | |||
2
| General Meeting | The Company’s general meeting. | |||
| Group Company | An entity or partnership which is organisationally connected with the Company in an economic unit within the meaning of Section 2:24b DCC. | |||
| Indemnified Officer | A current or former Director or such other current or former officer or employee of the Company or its Group Companies as designated by the Board. | |||
| Meeting Rights | With respect to the Company, the rights attributed by law to the holders of depository receipts issued for shares with a company’s cooperation, including the right to attend and address a General Meeting. | |||
| Non-Executive Director | A non-executive Director. | |||
| Person with Meeting Rights | A shareholder, a usufructuary or pledgee with voting rights or a holder of depository receipts for ordinary shares issued with the Company’s cooperation. | |||
| Record Date | The date of registration for a General Meeting as provided by law. | |||
| Simple Majority | More than half of the votes cast. | |||
| Subsidiary | A subsidiary of the Company within the meaning of Section 2:24a DCC. | |||
| Vice-Chairperson | The vice-chairperson of the Board. | |||
| 1.2 | Unless the context requires otherwise, references to “ordinary shares” or “shareholders” are to ordinary shares in the Company’s capital or to the holders thereof, respectively. |
| 1.3 | References to statutory provisions are to those provisions as they are in force from time to time. |
| 1.4 | Terms that are defined in the singular have a corresponding meaning in the plural. |
| 1.5 | Words denoting a gender include each other gender. |
| 1.6 | Except as otherwise required by law, the terms “written” and “in writing” include the use of electronic means of communication. |
NAME AND SEAT
Article 2
| 2.1 | The Company’s name is New Amsterdam Pharma Company N.V. |
| 2.2 | The Company has its corporate seat in Naarden. |
OBJECTS
Article 3
The Company’s objects are:
| a. | to develop, conduct research, produce, commercialize, market and sell medicines in general and innovative medicines for cardiovascular diseases in particular; |
| b. | to incorporate, to participate in, to finance, to hold any other interest in and to conduct the management or supervision of other entities, companies, partnerships and businesses; |
| c. | to provide administrative, technical, financial, economic or other services to other entities, companies, partnerships and businesses; |
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| d. | to acquire, to manage, to invest, to exploit, to encumber and to dispose of assets and liabilities; |
| e. | to furnish guarantees, to provide security, to warrant performance in any other way and to assume liability, whether jointly and severally or otherwise, in respect of obligations of group companies or other parties; and |
| f. | to do anything which, in the widest sense, is connected with or may be conducive to the objects described above. |
SHARES - AUTHORISED SHARE CAPITAL AND DEPOSITORY RECEIPTS
Article 4
| 4.1 | The Company’s authorised share capital amounts to twenty-one million euro (EUR 21,000,000). |
| 4.2 | The authorised share capital is divided into one hundred and seventy-five million (175,000,000) ordinary shares, each having a nominal value of twelve eurocents (EUR 0.12). |
| 4.3 | The Board may resolve that one or more ordinary shares are divided into such number of fractional ordinary shares as may be determined by the Board. Unless specified differently, the provisions of these articles of association concerning ordinary shares and shareholders apply mutatis mutandis to fractional ordinary shares and the holders thereof, respectively. |
| 4.4 | The Company may cooperate with the issue of depository receipts for ordinary shares in its capital. |
SHARES - FORM AND SHARE REGISTER
Article 5
| 5.1 | All ordinary shares are in registered form. The Company may issue share certificates for ordinary shares in registered form as may be approved by the Board. Each Director is authorised to sign any such share certificate on behalf of the Company. |
| 5.2 | Ordinary shares shall be numbered consecutively, starting from 1. |
| 5.3 | The Board shall keep a register setting out the names and addresses of all shareholders and all holders of a usufruct or pledge in respect of ordinary shares. The register shall also set out any other particulars that must be included in the register pursuant to applicable law. Part of the register may be kept outside the Netherlands to comply with applicable local law or pursuant to stock exchange rules. |
| 5.4 | Shareholders, usufructuaries and pledgees shall provide the Board with the necessary particulars in a timely fashion. Any consequences of not, or incorrectly, notifying such particulars shall be home by the party concerned. |
| 5.5 | All notifications may be sent to shareholders, usufructuaries and pledgees at their respective addresses as set out in the register. |
SHARES - ISSUE
Article 6
| 6.1 | The Company can only issue ordinary shares pursuant to a resolution of the General Meeting or of another body authorised by the General Meeting for this purpose for a specified period not exceeding five years. When granting such authorisation, the number |
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| of ordinary shares that may be issued must be specified. The authorisation may be extended, in each case for a period not exceeding five years. Unless stipulated differently when granting the authorisation, the authorisation cannot be revoked. For as long as and to the extent that another body has been authorised to resolve to issue ordinary shares, the General Meeting shall not have this authority. |
| 6.2 | Article 6.1 applies mutatis mutandis to the granting of rights to subscribe for ordinary shares, but does not apply in respect of issuing ordinary shares to a party exercising a previously acquired right to subscribe for ordinary shares. |
| 6.3 | The Company may not subscribe for ordinary shares in its own capital. |
SHARES - PRE-EMPTION RIGHTS
Article 7
| 7.1 | Upon an issue of ordinary shares, each shareholder shall have a pre-emption right in proportion to the aggregate nominal value of his ordinary shares. |
| 7.2 | In deviation of Article 7.1, shareholders do not have pre-emption rights in respect of: |
| a. | ordinary shares issued against non-cash contribution; or |
| b. | ordinary shares issued to employees of the Company or of a Group Company. |
| 7.3 | The Company shall announce an issue with pre-emption rights and the period during which those rights can be exercised in the State Gazette and in a daily newspaper with national distribution, unless the announcement is sent in writing to all shareholders at the addresses submitted by them. |
| 7.4 | Pre-emption rights may be exercised for a period of at least two weeks after the date of announcement in the State Gazette or after the announcement was sent to the shareholders. |
| 7.5 | Pre-emption rights may be limited or excluded by a resolution of the General Meeting or of the body authorised as referred to in Article 6.1, if that body was authorised by the General Meeting for this purpose for a specified period not exceeding five years. The authorisation may be extended, in each case for a period not exceeding five years. Unless stipulated differently when granting the authorisation, the authorisation cannot be revoked. For as long as and to the extent that another body has been authorised to resolve to limit or exclude pre-emption rights, the General Meeting shall not have this authority. |
| 7.6 | A resolution of the General Meeting to limit or exclude pre-emption rights, or to grant an authorisation as referred to in Article 7.5, shall require a majority of at least two thirds of the votes cast if less than half of the issued share capital is represented at the General Meeting. |
| 7.7 | The preceding provisions of this Article 7 apply mutatis mutandis to the granting of rights to subscribe for ordinary shares, but do not apply in respect of issuing ordinary shares to a party exercising a previously acquired right to subscribe for ordinary shares. |
SHARES - PAYMENT
Article 8
| 8.1 | Without prejudice to Section 2:80(2) DCC, the nominal value of an ordinary share and, if the ordinary share is subscribed for at a higher price, the difference between these amounts must be paid up upon subscription for that ordinary share. |
| 8.2 | Ordinary shares must be paid up in cash, except to the extent that payment by means of a contribution in another form has been agreed. |
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| 8.3 | Payment in a currency other than the euro can only be made with the Company’s consent. Where such a payment is made, the payment obligation is satisfied for the amount in euro for which the paid amount can be freely exchanged. Without prejudice to the last sentence of Section 2:80a(3) DCC, the date of the payment determines the exchange rate. |
SHARES - FINANCIAL ASSISTANCE
Article 9
| 9.1 | The Company may not provide security, give a price guarantee, warrant performance in any other way or commit itself jointly and severally or otherwise with or for others with a view to the subscription for or acquisition of ordinary shares or depository receipts for ordinary shares in its capital by others. This prohibition applies equally to Subsidiaries. |
| 9.2 | The Company and its Subsidiaries may not provide loans with a view to the subscription for or acquisition of ordinary shares or depository receipts for ordinary shares in the Company’s capital by others, unless the Board resolves to do so and Section 2:98c DCC is observed. |
| 9.3 | The preceding provisions of this Article 9 do not apply if ordinary shares or depository receipts for ordinary shares are subscribed for or acquired by or for employees of the Company or of a Group Company. |
SHARES - ACQUISITION OF OWN SHARES
Article 10
| 10.1 | The acquisition by the Company of ordinary shares in its own capital which have not been fully paid up shall be null and void. |
| 10.2 | The Company may only acquire fully paid up ordinary shares in its own capital for no consideration or if and to the extent that the General Meeting has authorised the Board for this purpose and all other relevant statutory requirements of Section 2:98 DCC are observed. |
| 10.3 | An authorisation as referred to in Article 10.2 remains valid for no longer than eighteen months. When granting such authorisation, the General Meeting shall determine the number of ordinary shares that may be acquired, how they may be acquired and within which range the acquisition price must be. An authorisation shall not be required for the Company to acquire ordinary shares in its own capital in order to transfer them to employees of the Company or of a Group Company pursuant to an arrangement applicable to them, provided that these ordinary shares are included on the price list of a stock exchange. |
| 10.4 | Without prejudice to Articles 10.1 through 10.3, the Company may acquire ordinary shares in its own capital for cash consideration or for consideration satisfied in the form of assets. In the case of a consideration being satisfied in the form of assets, the value thereof, as determined by the Board, must be within the range stipulated by the General Meeting as referred to in Article 10.3. |
| 10.5 | The previous provisions of this Article 10 do not apply to ordinary shares acquired by the Company under universal title of succession. |
| 10.6 | In this Article 10, references to ordinary shares include depository receipts for ordinary shares. |
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SHARES - REDUCTION OF ISSUED SHARE CAPITAL
Article 11
| 11.1 | The General Meeting can resolve to reduce the Company’s issued share capital by cancelling ordinary shares or by reducing the nominal value of ordinary shares by virtue of an amendment to these articles of association. The resolution must designate the ordinary shares to which the resolution relates and it must provide for the implementation of the resolution. |
| 11.2 | A resolution to cancel ordinary shares may only relate to ordinary shares held by the Company itself or in respect of which the Company holds the depository receipts. |
| 11.3 | A resolution of the General Meeting to reduce the Company’s issued share capital shall require a majority of at least two thirds of the votes cast if less than half of the issued share capital is represented at the General Meeting. |
SHARES - ISSUE AND TRANSFER REQUIREMENTS
Article 12
| 12.1 | Except as otherwise provided or allowed by Dutch law, the issue or transfer of an ordinary share shall require a deed to that effect and, in the case of a transfer and unless the Company itself is a party to the transaction, acknowledgement of the transfer by the Company. |
| 12.2 | The acknowledgement shall be set out in the deed or shall be made in such other manner as prescribed by law. |
| 12.3 | For as long as any ordinary shares are admitted to trading on the New York Stock Exchange, the NASDAQ Stock Market or on any other regulated stock exchange operating in the United States of America, the laws of the State of New York shall apply to the property law aspects of the ordinary shares (including the statutory provisions concerning the transfer and ownership of legal title to ordinary shares) reflected in the register administered by the relevant transfer agent, without prejudice to the applicable provisions of Chapters 4 and 5 of Title 10 of Book 10 DCC. |
SHARES - USUFRUCT AND PLEDGE
Article 13
| 13.1 | Ordinary shares can be encumbered with a usufruct or pledge. |
| 13.2 | The voting rights attached to an ordinary share which is subject to a usufruct or pledge vest in the shareholder concerned. |
| 13.3 | In deviation of Article 13.2, the holder of a usufruct or pledge on ordinary shares shall have the voting rights attached thereto if this was provided when the usufruct or pledge was created. |
| 13.4 | Usufructuaries and pledgees without voting rights shall not have Meeting Rights. |
BOARD - COMPOSITION
Article 14
| 14.1 | The Company has a Board consisting of: |
| a. | one or more Executive Directors, being primarily charged with the Company’s day-to-day operations; and |
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| b. | one or more Non-Executive Directors, being primarily charged with the supervision of the performance of the duties of the Directors. |
| The Board shall be composed of individuals. |
| 14.2 | The Board shall determine the number of Executive Directors and the number of Non-Executive Directors. |
| 14.3 | The Board shall elect an Executive Director to be the CEO. The Board may dismiss the CEO, provided that the CEO so dismissed shall subsequently continue his term of office as an Executive Director without having the title of CEO. |
| 14.4 | The Board shall elect a Non-Executive Director to be the Chairperson and another Non-Executive Director to be the Vice-Chairperson. The Board may dismiss the Chairperson or Vice-Chairperson, provided that the Chairperson or Vice-Chairperson so dismissed shall subsequently continue his term of office as a Non-Executive Director without having the title of Chairperson or Vice-Chairperson, respectively. |
| 14.5 | If a Director is absent or unable to act, he may be replaced temporarily by a person whom the Board has designated for that purpose and, until then, the other Director(s) shall be charged with the management of the Company. If all Directors are absent or unable to act, the management of the Company shall be attributed to the person who most recently ceased to hold office as the Chairperson. If such former Chairperson is unwilling or unable to accept that position, the management of the Company shall be attributed to the person who most recently ceased to hold office as the CEO. If such former CEO is also unwilling or unable to accept that position, the management of the Company shall be attributed to one or more persons whom the General Meeting has designated for that purpose. The person(s) charged with the management of the Company in this manner, may designate one or more persons to be charged with the management of the Company instead of, or together with, such person(s). |
| 14.6 | A Director shall be considered to be absent or unable to act, as applicable, within the meaning of Article 14.5: |
| a. | during the existence of a vacancy on the Board, including as a result of: |
| i. | his death; |
| ii. | his dismissal by the General Meeting, other than at the proposal of the Board; |
| iii. | his voluntary resignation before his term of office has expired; or |
| iv. | not being reappointed by the General Meeting, notwithstanding a (binding) nomination to that effect by the Board, |
| provided that the Board may always decide to decrease the number of Directors such that a vacancy no longer exists; |
| b. | during his suspension; or |
| c. | in a period during which the Company has not been able to contact him (including as a result of illness), provided that such period lasted longer than five consecutive days (or such other period as determined by the Board on the basis of the facts and circumstances at hand). |
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BOARD - APPOINTMENT, SUSPENSION AND DISMISSAL
Article 15
| 15.1 | The General Meeting shall appoint the Directors and may at any time suspend or dismiss any Director. In addition, the Board may at any time suspend an Executive Director. |
| 15.2 | The General Meeting can only appoint Directors upon a nomination by the Board. The General Meeting may at any time resolve to render such nomination to be non-binding by a majority of at least two thirds of the votes cast representing more than half of the issued share capital. If a nomination is rendered non-binding, a new nomination shall be made by the Board. If the nomination comprises one candidate for a vacancy, a resolution concerning the nomination shall result in the appointment of the candidate, unless the nomination is rendered non-binding. A second meeting as referred to in Section 2:120(3) DCC cannot be convened. |
| 15.3 | At a General Meeting, a resolution to appoint a Director can only be passed in respect of candidates whose names are stated for that purpose in the agenda of that General Meeting or the explanatory notes thereto. |
| 15.4 | Upon the appointment of a person as a Director, the General Meeting shall determine whether that person is appointed as Executive Director or as Non-Executive Director. |
| 15.5 | A resolution of the General Meeting to suspend or dismiss a Director shall require a majority of at least two thirds of the votes cast representing more than half of the issued share capital, unless the resolution is passed at the proposal of the Board. A second meeting as referred to in Section 2:120(3) DCC cannot be convened. |
| 15.6 | If a Director is suspended and the General Meeting does not resolve to dismiss him within three months from the date of such suspension, the suspension shall lapse. |
BOARD - DUTIES AND ORGANISATION
Article 16
| 16.1 | The Board is charged with the management of the Company, subject to the restrictions contained in these articles of association. This includes in any event setting the Company’s policy and strategy. In performing their duties, Directors shall be guided by the interests of the Company and of the business connected with it. |
| 16.2 | The Board shall draw up Board Rules concerning its organisation, decision-making and other internal matters, with due observance of these articles of association. In performing their duties, the Directors shall act in compliance with the Board Rules. |
| 16.3 | The Directors may allocate their duties amongst themselves in or pursuant to the Board Rules or otherwise pursuant to resolutions adopted by the Board, provided that: |
| a. | the Executive Directors shall be charged with the Company’s day-to-day operations; |
| b. | the task of supervising the performance of the duties of the Directors cannot be taken away from the Non-Executive Directors; |
| c. | the Chairperson must be a Non-Executive Director; and |
| d. | the making of proposals for the appointment of a Director and the determination of the compensation of the Executive Directors cannot be allocated to an Executive Director. |
| 16.4 | The Board may determine in writing, in or pursuant to the Board Rules or otherwise pursuant to resolutions adopted by the Board, that one or more Directors can validly pass resolutions in respect of matters which fall under his/their duties. |
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| 16.5 | The Board shall establish the committees which the Company is required to have and otherwise such committees as are deemed to be appropriate by the Board. The Board shall draw up (and/or include in the Board Rules) rules concerning the organisation, decision-making and other internal matters of its committees. |
| 16.6 | The Board may perform the legal acts referred to in Section 2:94(1) DCC without the prior approval of the General Meeting. |
BOARD - DECISION-MAKING
Article 17
| 17.1 | Without prejudice to Article 17.5, each Director may cast one vote in the decision-making of the Board. |
| 17.2 | A Director can be represented by another Director holding a written proxy for the purpose of the deliberations and the decision-making of the Board. |
| 17.3 | Resolutions of the Board shall be passed, irrespective of whether this occurs at a meeting or otherwise, by Simple Majority unless the Board Rules provide differently. |
| 17.4 | Invalid votes, blank votes and abstentions shall not be counted as votes cast. Directors who casted an invalid or blank vote or who abstained from voting shall be taken into account when determining the number of Directors who are present or represented at a meeting of the Board. |
| 17.5 | Where there is a tie in any vote of the Board, the Chairperson shall have a casting vote, provided that there are at least three Directors in office. Otherwise, the relevant resolution shall not have been passed. |
| 17.6 | The Executive Directors shall not participate in the decision-making concerning: |
| a. | the determination of the compensation of Executive Directors; and |
| b. | the instruction of an auditor to audit the annual accounts if the General Meeting has not granted such instruction. |
| 17.7 | A Director shall not participate in the deliberations and decision-making of the Board on a matter in relation to which he has a direct or indirect personal interest which conflicts with the interests of the Company and of the business connected with it. If, as a result thereof, no resolution can be passed by the Board, the resolution may nevertheless be passed by the Board as if none of the Directors has a conflict of interests as described in the previous sentence. |
| 17.8 | Meetings of the Board can be held through audio-communication facilities, unless a Director objects thereto. |
| 17.9 | Resolutions of the Board may, instead of at a meeting, be passed in writing, provided that all Directors are familiar with the resolution to be passed and none of them objects to this decision-making process. Articles 17.1 through 17.7 apply mutatis mutandis. |
| 17.10 | The approval of the General Meeting is required for resolutions of the Board concerning a material change to the identity or the character of the Company or the business, including in any event: |
| a. | transferring the business or materially all of the business to a third party; |
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| b. | entering into or terminating a long-lasting alliance of the Company or of a Subsidiary either with another entity or company, or as a fully liable partner of a limited partnership or general partnership, if this alliance or termination is of significant importance for the Company; and |
| c. | acquiring or disposing of an interest in the capital of a company by the Company or by a Subsidiary with a value of at least one third of the value of the assets, according to the balance sheet with explanatory notes or, if the Company prepares a consolidated balance sheet, according to the consolidated balance sheet with explanatory notes in the Company’s most recently adopted annual accounts. |
| 17.11 | The absence of the approval of the General Meeting of a resolution as referred to in Article 17.10 shall result in the relevant resolution being null and void pursuant to Section 2: 14(1) DCC but shall not affect the powers of representation of the Board or of the Detectors. |
BOARD - COMPENSATION
Article 18
| 18.1 | The General Meeting shall determine the Company’s policy concerning the compensation of the Board with due observance of the relevant statutory requirements. |
| 18.2 | The compensation of Directors shall be determined by the Board with due observance of the policy referred to in Article 18.1. |
| 18.3 | The Board shall submit proposals concerning compensation arrangements for the Board in the form of ordinary shares or rights to subscribe for ordinary shares to the General Meeting for approval. This proposal must at least include the number of ordinary shares or rights to subscribe for ordinary shares that may be awarded to the Board and which criteria apply for such awards or changes thereto. The absence of the approval of the General Meeting shall not affect the powers of representation. |
BOARD - REPRESENTATION
Article 19
| 19.1 | The Board is entitled to represent the Company. |
| 19.2 | The power to represent the Company also vests in the CEO individually, as well as in any other two Executive Directors acting jointly. |
| 19.3 | The Company may also be represented by the holder of a power of attorney to that effect. If the Company grants a power of attorney to an individual, the Board may grant an appropriate title to such person. |
INDEMNITY
Article 20
| 20.1 | The Company shall indemnify and hold harmless each of its Indemnified Officers against: |
| a. | any financial losses or damages incurred by such Indemnified Officer; and |
| b. | any expense reasonably paid or incurred by such Indemnified Officer in connection with any threatened, pending or completed suit, claim, action or legal proceedings of a civil, criminal, administrative or other nature, formal or informal, in which he becomes involved, |
| to the extent this relates to his current or former position with the Company and/or a Group Company and in each case to the extent permitted by applicable law. |
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| 20.2 | No indemnification shall be given to an Indemnified Officer: |
| a. | if a competent court or arbitral tribunal has established, without having (or no longer having) the possibility for appeal, that the acts or omissions of such Indemnified Officer that led to the financial losses, damages, expenses, suit, claim, action or legal proceedings as described in Article 20.1 are of an unlawful nature (including acts or omissions which are considered to constitute malice, gross negligence, intentional recklessness and/or serious culpability attributable to such Indemnified Officer); |
| b. | to the extent that his financial losses, damages and expenses are covered under insurance and the relevant insurer has settled, or has provided reimbursement for, these financial losses, damages and expenses (or has irrevocably undertaken to do so); |
| c. | in relation to proceedings brought by such Indemnified Officer against the Company, except for proceedings brought to enforce indemnification to which he is entitled pursuant to these articles of association, pursuant to an agreement between such Indemnified Officer and the Company which has been approved by the Board or pursuant to insurance taken out by the Company for the benefit of such Indemnified Officer; or |
| d. | for any financial losses, damages or expenses incurred in connection with a settlement of any proceedings effected without the Company’s prior consent. |
| 20.3 | The Board may stipulate additional terms, conditions and restrictions in relation to the indemnification referred to in Article 20.1. |
GENERAL MEETING - CONVENING AND HOLDING MEETINGS
Article 21
| 21.1 | Annually, at least one General Meeting shall be held. This annual General Meeting shall be held within six months after the end of the Company’s financial year. |
| 21.2 | A General Meeting shall also be held: |
| a. | within three months after the Board has considered it to be likely that the Company’s equity has decreased to an amount equal to or lower than half of its paid up and called up capital, in order to discuss the measures to be taken if so required; and |
| b. | whenever the Board so decides. |
| 21.3 | General Meetings must be held in the place where the Company has its corporate seat or in Amsterdam, Arnhem, Assen, The Hague, Haarlem, ‘s-Hertogenbosch, Groningen, Leeuwarden, Lelystad, Maastricht, Middelburg, Rotterdam, Schiphol (municipality of Haarlemmermeer), Utrecht or Zwolle. |
| 21.4 | If the Board has failed to ensure that a General Meeting as referred to in Articles 21.1 or 21.2 paragraph a. is held, each Person with Meeting Rights may be authorised by the court in preliminary relief proceedings to do so. |
| 21.5 | One or more Persons with Meeting Rights who collectively represent at least the part of the Company’s issued share capital prescribed by law for this purpose may request the |
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| Board in writing to convene a General Meeting, setting out in detail the matters to be discussed. If the Board has not taken the steps necessary to ensure that the General Meeting could be held within the relevant statutory period after the request, the requesting Person(s) with Meeting Rights may be authorised, at his/their request, by the court in preliminary relief proceedings to convene a General Meeting. |
| 21.6 | Any matter of which the discussion has been requested in writing by one or more Persons with Meeting Rights who, individually or collectively, represent at least the part of the Company’s issued share capital prescribed by law for this purpose shall be included in the convening notice or announced in the same manner, if the Company has received the substantiated request or a proposal for a resolution no later than on the sixtieth day prior to that of the General Meeting. |
| 21.7 | Persons with Meeting Rights who wish to exercise their rights as described in Articles 21.5 and 21.6 must first consult the Board. In that respect, the Board shall have, and Persons with Meeting Rights must observe, the right to invoke any cooling-off period and response period provided under applicable law and/or the Dutch Corporate Governance Code. |
| 21.8 | A General Meeting must be convened with due observance of the relevant statutory minimum convening period. |
| 21.9 | All Persons with Meeting Rights must be convened for the General Meeting in accordance with applicable law. The shareholders may be convened for the General Meeting by means of convening letters sent to the addresses of those shareholders in accordance with Article 5.5. The previous sentence does not prejudice the possibility of sending a convening notice by electronic means in accordance with Section 2:113(4) DCC. |
GENERAL MEETING - PROCEDURAL RULES
Article 22
| 22.1 | The General Meeting shall be chaired by one of the following individuals, taking into account the following order of priority: |
| a. | by the Chairperson, if there is a Chairperson and he is present at the General Meeting; |
| b. | by the Vice-Chairperson, if there is a Vice-Chairperson and he is present at the General Meeting; |
| c. | by another Non-Executive Director who is chosen by the Non-Executive Directors present at the General Meeting from their midst; |
| d. | by the CEO, if there is a CEO and he is present at the General Meeting; or |
| e. | by another person appointed by the General Meeting. |
The person who should chair the General Meeting pursuant to paragraphs a. through d. may appoint another person to chair the General Meeting instead of him.
| 22.2 | The chairperson of the General Meeting shall appoint another person present at the General Meeting to act as secretary and to minute the proceedings at the General Meeting. The minutes of a General Meeting shall be adopted by the chairperson of that General Meeting or by the Board. Where an official report of the proceedings is drawn up by a civil law notary, no minutes need to be prepared. Every Director may instruct a civil law notary to draw up such an official report at the Company’s expense. |
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| 22.3 | The chairperson of the General Meeting shall decide on the admittance to the General Meeting of persons other than: |
| a. | the persons who have Meeting Rights at that General Meeting, or their proxyholders; and |
| b. | those who have a statutory right to attend that General Meeting on other grounds. |
| 22.4 | The holder of a written proxy from a Person with Meeting Rights who is entitled to attend a General Meeting shall only be admitted to that General Meeting if the proxy is determined to be acceptable by the chairperson of that General Meeting. |
| 22.5 | The Company may direct that any person, before being admitted to a General Meeting, identify himself by means of a valid passport or driver’s license and/or should be submitted to such security arrangements as the Company may consider to be appropriate under the given circumstances. Persons who do not comply with these requirements may be refused entry to the General Meeting. |
| 22.6 | The chairperson of the General Meeting has the right to eject any person from the General Meeting if he considers that person to disrupt the orderly proceedings at the General Meeting. |
| 22.7 | The General Meeting may be conducted in a language other than the Dutch language, if so determined by the chairperson of the General Meeting. |
| 22.8 | The chairperson of the General Meeting may limit the amount of time that persons present at the General Meeting are allowed to take in addressing the General Meeting and the number of questions they are allowed to raise, with a view to safeguarding the orderly proceedings at the General Meeting. The chairperson of the General Meeting may also adjourn the meeting if he considers that this shall safeguard the orderly proceedings at the General Meeting. |
GENERAL MEETING - EXERCISE OF MEETING AND VOTING RIGHTS
Article 23
| 23.1 | Each Person with Meeting Rights has the right to attend, address and, if applicable, vote at General Meetings, whether in person or represented by the holder of a written proxy. Holders of fractional ordinary shares together constituting the nominal value of an ordinary share shall exercise these rights collectively, whether through one of them or through the holder of a written proxy. |
| 23.2 | The Board may decide that each Person with Meeting Rights is entitled, whether in person or represented by the holder of a written proxy, to participate in, address and, if applicable, vote at the General Meeting by electronic means of communication. For the purpose of applying the preceding sentence it must be possible, by electronic means of communication, for the Person with Meeting Rights to be identified, to observe in real time the proceedings at the General Meeting and, if applicable, to vote. The Board may impose conditions on the use of the electronic means of communication, provided that these conditions are reasonable and necessary for the identification of the Person with Meeting Rights and the reliability and security of the communication. Such conditions must be announced in the convening notice. |
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| 23.3 | The Board can also decide that votes cast through electronic means of communication or by means of a letter prior to the General Meeting are considered to be votes that are cast during the General Meeting. These votes shall not be cast prior to the Record Date. |
| 23.4 | For the purpose of Articles 23.1 through 23.3, those who have voting rights and/or Meeting Rights on the Record Date and are recorded as such in a register designated by the Board shall be considered to have those rights, irrepective of whoever is entitled to the ordinary shares or depository receipts at the time of the General Meeting. Unless Dutch law requires otherwise, the Board is free to determine, when convening a General Meeting, whether the previous sentence applies. |
| 23.5 | Each Person with Meeting Rights must notify the Company in writing of his identity and his intention to attend the General Meeting. This notice must be received by the Company ultimately on the seventh day prior to the General Meeting, unless indicated otherwise when such General Meeting is convened. Persons with Meeting Rights that have not complied with this requirement may be refused entry to the General Meeting. |
GENERAL MEETING - DECISION-MAKING
Article 24
| 24.1 | Each ordinary share shall give the right to cast one vote at the General Meeting. Fractional ordinary shares, if any, collectively constituting the nominal value of an ordinary share shall be considered to be equivalent to such ordinary share. |
| 24.2 | No vote can be cast at a General Meeting in respect of an ordinary share belonging to the Company or a Subsidiary or in respect of an ordinary share for which any of them holds the depository receipts. Usufructuaries and pledgees of ordinary shares belonging to the Company or its Subsidiaries are not, however, precluded from exercising their voting rights if the usufruct or pledge was created before the relevant ordinary share belonged to the Company or a Subsidiary. Neither the Company nor a Subsidiary can vote ordinary shares in respect of which it holds a usufruct or a pledge. |
| 24.3 | Unless a greater majority is required by law or by these articles of association, all resolutions of the General Meeting shall be passed by Simple Majority. If applicable law requires a greater majority for resolutions of the General Meeting and allows the articles of association to provide for a lower majority, those resolutions shall be passed with the lowest possible majority, except if these articles of association explicitly provide otherwise. |
| 24.4 | Subject to any provision of mandatory Dutch law and any higher quorum requirement stipulated by these articles of association, if the Company is subject to a requirement under applicable securities laws or listing rules that the General Meeting can only pass certain resolutions if a certain part of the Company’s issued share capital is represented at such General Meeting, then such resolutions shall be subject to such quorum as specified by such securities laws or listing rules and a second meeting as referred to in Section 2: 120(3) DCC cannot be convened. |
| 24.5 | Invalid votes, blank votes and abstentions shall not be counted as votes cast. Ordinary shares in respect of which an invalid or blank vote has been cast and ordinary shares in respect of which an abstention has been made shall be taken into account when determining the part of the issued share capital that is represented at a General Meeting. |
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| 24.6 | Where there is a tie in any vote of the General Meeting, the relevant resolution shall not have been passed. |
| 24.7 | The chairperson of the General Meeting shall decide on the method of voting and the voting procedure at the General Meeting. |
| 24.8 | The determination during the General Meeting made by the chairperson of that General Meeting with regard to the results of a vote shall be decisive. If the accuracy of the chairperson’s determination is contested immediately after it has been made, a new vote shall take place if the majority of the General Meeting so requires or, where the original vote did not take place by response to a roll call or in writing, if any patty with voting rights who is present so requires. The legal consequences of the original vote shall lapse as a result of the new vote. |
| 24.9 | The Board shall keep a record of the resolutions passed. The record shall be available at the Company’s office for inspection by Persons with Meeting Rights. Each of them shall, upon request, be provided with a copy of or extract from the record, at no more than the cost price. |
| 24.10 | Shareholders may pass resolutions outside a meeting, unless the Company has cooperated with the issuance of depository receipts for ordinary shares in its capital. Such resolutions can only be passed by a unanimous vote of all shareholders with voting rights. The votes shall be cast in writing and may be cast through electronic means. |
| 24.11 | The Directors shall, in that capacity, have an advisory vote at the General Meetings. |
GENERAL MEETING - SPECIAL RESOLUTIONS
Article 25
| 25.1 | The following resolutions can only be passed by the General Meeting at the proposal of the Board: |
| a. | the issue of ordinary shares or the granting of rights to subscribe for ordinary shares; |
| b. | the limitation or exclusion of pre-emption rights; |
| c. | the designation or granting of an authorisation as referred to in Articles 6.1, 7.5 and 10 .2, respectively; |
| d. | the disapplication or revocation of a designation or authorisation as referred to in Articles 6.1, 7.5 and 10.2, respectively; |
| e. | the reduction of the Company’s issued share capital; |
| f. | the making of a distribution from the Company’s profits or reserves; |
| g. | the making of a distribution in the form of ordinary shares in the Company’s capital or in the form of assets, instead of in cash; |
| h. | the amendment of these articles of association; |
| i. | the entering into of a merger or demerger; |
| j. | the instruction of the Board to apply for the Company’s bankruptcy; and |
| k. | the Company’s dissolution. |
| 25.2 | A matter which has been included in the convening notice or announced in the same manner by or at the request of one or more Persons with Meeting Rights pursuant to |
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| Articles 21.5 and/or 21.6 shall not be considered to have been proposed by the Board for purposes of Article 25.1, unless the Board has expressly indicated that it supports the discussion of such matter in the agenda of the General Meeting concerned or in the explanatory notes thereto. |
REPORTING - FINANCIAL YEAR, ANNUAL ACCOUNTS AND MANAGEMENT REPORT
Article 26
| 26.1 | The Company’s financial year shall coincide with the calendar year. |
| 26.2 | Annually, within the relevant statutory period, the Board shall prepare the annual accounts and the management repot and deposit them at the Company’s office for inspection by the shareholders. |
| 26.3 | The annual accounts shall be signed by the Directors. If any of their signatures is missing, this shall be mentioned, stating the reasons. |
| 26.4 | The Company shall ensure that the annual accounts, the management report and the particulars to be added pursuant to Section 2:392(1) DCC shall be available at its offices as from the convening of the General Meeting at which they are to be discussed. The Persons with Meeting Rights are entitled to inspect such documents at that location and to obtain a copy at no cost. |
| 26.5 | The annual accounts shall be adopted by the General Meeting. |
REPORTING - AUDIT
Article 27
| 27.1 | The General Meeting shall instruct an external auditor as referred to in Section 2:393 DCC to audit the annual accounts. Where the General Meeting fails to do so, the Board shall be authorised to do so. |
| 27.2 | The instruction may be revoked by the General Meeting and by the body that has granted the instruction. The instruction can only be revoked for well-founded reasons; a difference of opinion regarding the reporting or auditing methods shall not constitute such a reason. |
DISTRIBUTIONS - GENERAL
Article 28
| 28.1 | A distribution can only be made to the extent that the Company’s equity exceeds the amount of the paid up and called up part of its capital plus the reserves which must be maintained by law. |
| 28.2 | The Board may resolve to make interim distributions, provided that it appears from interim accounts to be prepared in accordance with Section 2:105( 4) DCC that the requirement referred to in Article 28.1 has been met. |
| 28.3 | Distributions shall be made in proportion to the aggregate nominal value of the ordinary shares. |
| 28.4 | The parties entitled to a distribution shall be the relevant shareholders, usufructuaries and pledgees, as the case may be, at a date to be determined by the Board for that purpose. This date shall not be earlier than the date on which the distribution was announced. |
| 28.5 | The General Meeting may resolve, subject to Article 25, that all or part of a distribution, instead of being made in cash, shall be, made in the form of ordinary shares in the Company’s capital or in the form of the Company’s assets. |
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| 28.6 | A distribution shall be payable on such date and, if it concerns a distribution in cash, in such currency or currencies as determined by the Board. If it concerns a distribution in the form of the Company’s assets, the Board shall determine the value attributed to such distribution for purposes of recording the distribution in the Company’s accounts with due observance of applicable law (including the applicable accounting principles). |
| 28.7 | A claim for payment of a distribution shall lapse after five years have expired after the distribution became payable. |
| 28.8 | For the purpose of calculating the amount or allocation of any distribution, ordinary shares held by the Company in its own capital shall not be taken into account. No distribution shall be made to the Company in respect of ordinary shares held by it in its own capital. |
DISTRIBUTIONS - RESERVES
Article 29
| 29.1 | Subject to Article 25, the General Meeting is authorised to resolve to make a distribution from the Company’s reserves. |
| 29.2 | The Board may resolve to charge amounts to be paid up on ordinary shares against the Company’s reserves, irrespective of whether those ordinary shares are issued to existing shareholders. |
DISTRIBUTIONS - PROFITS
Article 30
| 30.1 | Subject to Article 28.1, the profits shown in the Company’s annual accounts in respect of a financial year shall be appropriated as follows, and in the following order of priority: |
| a. | the Board shall determine which part of the profits shall be added to the Company’s reserves; and |
| b. | subject to Article 25, the remaining profits shall be at the disposal of the General Meeting for distribution on the ordinary shares. |
| 30.2 | Subject to Article 28.1, a distribution of profits shall be made after the adoption of the annual accounts that show that such distribution is allowed. |
DISSOLUTION AND LIQUIDATION
Article 31
| 31.1 | In the event of the Company being dissolved, the liquidation shall be effected by the Board, unless the General Meeting decides otherwise. |
| 31.2 | To the extent possible, these articles of association shall remain in effect during the liquidation. |
| 31.3 | Any assets remaining after payment of all of the Company’s debts shall be distributed to the shareholders. |
| 31.4 | After the Company has ceased to exist, its books, records and other information carriers shall be kept for the period prescribed by law by the person designated for that purpose in the resolution of the General Meeting to dissolve the Company. Where the General Meeting has not designated such a person, the liquidators shall do so. |
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FEDERAL FORUM PROVISION
Article 32
Unless the Company consents in writing to the selection of an alternative forum, the sole and exclusive forum for any complaint asserting a cause of action arising under the United States Securities Act of 1933, as amended, or the United States Securities Exchange Act of 1934, as amended, to the fullest extent permitted by applicable law, shall be the United States federal district courts.
TRANSITIONAL PROVISION
Article 33
| 33.1 | Upon the Company’s issued share capital increasing to an amount of at least nine million six hundred thousand euro (EUR 9,600,000): |
| a. | the Company’s authorised share capital described in Article 4.1 shall immediately and automatically increase to an amount of forty-eight million euro (EUR 48,000,000); and |
| b. | the composition of the authorised share capital described in Article 4.2 shall immediately and automatically be adjusted, such that the authorised share capital shall be divided into four hundred million (400,000,000) ordinary shares, each having a nominal value of twelve eurocents (EUR 0.12). |
This Article 33.1 shall lapse and shall no longer form part of these articles of association at the moment immediately after the increase of the Company’s issued share capital as described in the first sentence of this Article 33.1 shall have become effective.
FINAL STATEMENTS
Finally, the person appearing declared that:
| a. | as evidenced by the Written Resolution, the person appearing has been authorised to execute this Deed; |
| b. | immediately following the execution of this Deed, the Company’s issued share capital shall amount to four million three hundred and fifty thousand nine hundred and ninety-seven euro and fatty-four cent (EUR 4,350,997.44); and |
| c. | the auditor’s statement as referred to in Section 2:72(1) of the Dutch Civil Code shall be attached to this Deed as an annex. |
The person appearing is known to me, civil law notary.
This Deed was executed in Amsterdam on the date mentioned in its heading.
After I, civil law notary, had conveyed and explained the contents of the Deed in substance to the person appearing, the person appearing declared that to have taken note of the contents of the Deed, to be in agreement with the contents and not to wish them to be read out in full. Following a partial reading, the Deed was signed by the person appearing and by me, civil law notary.
(signatures follow)
Exhibit 4.2
The Companies Act (As Revised) of the Cayman Islands
Plan of Merger
This plan of merger (the “Plan of Merger”) is made on 22 November 2022 between Frazier Lifesciences Acquisition Corporation (the “Surviving Company”) and NewAmsterdam Pharma Investment Corporation (the “Merging Company”).
Whereas the Merging Company is a Cayman Islands exempted company and is entering into this Plan of Merger pursuant to the provisions of Part XVI of the Companies Act (As Revised) (the “Statute”).
Whereas the Surviving Company is a Cayman Islands exempted company and is entering into this Plan of Merger pursuant to the provisions of Part XVI of the Statute.
Whereas the sole director of the Merging Company and the directors of the Surviving Company deem it desirable and in the commercial interests of the Merging Company and the Surviving Company, respectively, that the Merging Company be merged with and into the Surviving Company and that the undertaking, property and liabilities of the Merging Company vest in the Surviving Company (the “Merger”).
Terms not otherwise defined in this Plan of Merger shall have the meanings given to them under the Business Combination Agreement dated 25 July 2022 and made between, amongst others, the Surviving Company and the Merging Company (the “Merger Agreement”) a copy of which is annexed at Annexure 1 hereto.
Now therefore this Plan of Merger provides as follows:
| 1 | The constituent companies (as defined in the Statute) to this Merger are the Surviving Company and the Merging Company. |
| 2 | The surviving company (as defined in the Statute) is the Surviving Company. |
| 3 | The registered office of the Surviving Company is c/o Campbells Corporate Services Limited of Floor 4, Willow House, Cricket Square, Grand Cayman KY1-9010, Cayman Islands. |
| 4 | The registered office of the Merging Company is c/o Maples Corporate Services Limited of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands. |
| 5 | Immediately prior to the Effective Date (as defined below), the share capital of the Surviving Company will be US$50,000 divided into 479,000,000 Class A Ordinary Shares of a par value of US$0.0001 each, 20,000,000 Class B Ordinary Shares a par value of US$0.0001 each and 1,000,000 Preference Shares with a par value of US$0.0001 each and the Surviving Company will have 9,234,138 Class A Ordinary Shares, 3,450,000 Class B Ordinary Shares and no Preference Shares in issue. |
| 6 | Immediately prior to the Effective Date (as defined below), the share capital of the Merging Company will be US$50,000 divided into 50,000 ordinary shares of a par value of US$1.00 each and the Merging Company will have 1 ordinary share in issue. |
| 7 | The date on which it is intended that the Merger is to take effect is the date that this Plan of Merger is registered by the Registrar in accordance with section 233(13) of the Statute (the “Effective Date”). |
| 8 | The terms and conditions of the Merger, including the manner and basis of converting shares in each constituent company into shares in the Surviving Company, are set out in the Merger Agreement in the form annexed at Annexure 1 hereto. |
| 9 | The rights and restrictions attaching to the shares in the Surviving Company are set out in the Amended and Restated Memorandum and Articles of Association of the Surviving Company in the form annexed at Annexure 2 hereto. |
| 10 | The Memorandum and Articles of Association of the Surviving Company shall be amended and restated by the deletion in their entirety and the substitution in their place of the Amended and Restated Memorandum and Articles of Association in the form annexed at Annexure 2 hereto on the Effective Date and the authorised share capital of the Surviving Company after the Merger shall be amended from US$50,000.00 divided into 479,000,000 Class A Ordinary Shares of a par value of US$0.0001 each, 20,000,000 Class B Ordinary Shares a par value of US$0.0001 each and 1,000,000 Preference Shares with a par value of US$0.0001 each to US$50,000 divided into 50,000 shares of a par value of US$1.00 each, by (i) the reclassification of all authorised shares of the Surviving Company of whatever class as shares; (ii) the consolidation of all authorised but unissued shares and all authorised and issued shares of par value of US$0.0001 each in the capital of the Company by a factor of 10,0000. |
| 11 | There are no amounts or benefits which are or shall be paid or payable to any director of either constituent company or the Surviving Company consequent upon the Merger. |
| 12 | The Merging Company has granted no fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
| 13 | The Surviving Company has granted no fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
| 14 | The name and address of the sole director of the surviving company (as defined in the Statute) after the Merger is: |
| 14.1 | LouFré Management B.V. of Frans Halslaan 9, 1272 HN, Huizen, Netherlands. |
| 15 | This Plan of Merger has been approved by the board of directors of each of the Surviving Company and the Merging Company pursuant to section 233(3) of the Statute. |
| 16 | This Plan of Merger has been authorised by the shareholders of the Merging Company pursuant to section 233(6) of the Statute. |
| 17 | This Plan of Merger has been authorised by the shareholders of the Surviving Company pursuant to section 233(6) of the Statute by way of resolutions passed at an extraordinary general meeting of the Surviving Company. |
| 18 | At any time prior to the Effective Date, this Plan of Merger may be: |
| 18.1 | terminated by the board of directors of either the Surviving Company or the Merging Company; |
| 18.2 | amended by the board of directors of both the Surviving Company and the Merging Company to: |
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DocuSign Envelope ID: C4901651-99D6-4EC3-BF27-4CB7D8DA0CD6
| (a) | change the Effective Date provided that such changed date shall not be a date later than the ninetieth day after the date of registration of this Plan of Merger with the Registrar of Companies; and |
| (b) | effect any other changes to this Plan of Merger which the directors of both the Surviving Company and the Merging Company deem advisable, provided that such changes do not materially adversely affect any rights of the shareholders of the Surviving Company or the Merging Company, as determined by the directors of both the Surviving Company and the Merging Company, respectively. |
| 19 | This Plan of Merger may be executed in counterparts. |
| 20 | This Plan of Merger shall be governed by and construed in accordance with the laws of the Cayman Islands. |
In witness whereof the parties hereto have caused this Plan of Merger to be executed on the day and year first above written.
| SIGNED by | James Topper |
) | ||||
| Duly authorised for | ) | /s/ James Topper | ||||
| and on behalf of | ) | Director | ||||
| Frazier Lifesciences Acquisition Corporation | ) | |||||
| SIGNED by |
|
) | ||||
| Duly authorised for | ) |
| ||||
| and on behalf of | ) | Director | ||||
| NewAmsterdam Pharma Investment | ) | |||||
| Corporation | ) | |||||
DocuSign Envelope ID: B898E38E-54A9-4984-A814-65D30F67B58B
| (a) | change the Effective Date provided that such changed date shall not be a date later than the ninetieth day after the date of registration of this Plan of Merger with the Registrar of Companies; and |
| (b) | effect any other changes to this Plan of Merger which the directors of both the Surviving Company and the Merging Company deem advisable, provided that such changes do not materially adversely affect any rights of the shareholders of the Surviving Company or the Merging Company, as determined by the directors of both the Surviving Company and the Merging Company, respectively. |
| 19 | This Plan of Merger may be executed in counterparts. |
| 20 | This Plan of Merger shall be governed by and construed in accordance with the laws of the Cayman Islands. |
In witness whereof the parties hereto have caused this Plan of Merger to be executed on the day and year first above written.
| SIGNED by |
|
) | ||||
| Duly authorised for | ) |
| ||||
| and on behalf of | ) | Director | ||||
| Frazier Lifesciences Acquisition Corporation | ) | |||||
| SIGNED by Louise Kooij | ) | |||||
| Duly authorised for | ) | /s/ Louise Kooij | ||||
| and on behalf of | ) | Director | ||||
| NewAmsterdam Pharma Investment | ) | |||||
| Corporation | ) | |||||
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Annexure 1
Merger Agreement
Annexure 2
Amended and Restated Memorandum and Articles of Association of the Surviving Company
Exhibit 4.16
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ROLLOVER OPTION PLAN
NEWAMSTERDAM PHARMA COMPANY N.V.
INTRODUCTION
Article 1
This document sets out rules relating to the Rollover Options.
DEFINITIONS AND INTERPRETATION
Article 2
| 2.1 | In this Plan the following definitions shall apply: |
| Article | An article of this Plan. | |||
| BCA | The Business Combination Agreement dated July 25, 2022 and entered into among the Company, Frazier Lifesciences Acquisition Corporation, NewAmsterdam Pharma Investment Corporation and NewAmsterdam Pharma Holding B.V. | |||
| Board | The Company’s board of directors. | |||
| Change of Control | The occurrence of any one or more of the following events (which, for the avoidance of doubt, do not include the Closing or any events occurring prior to the Closing):
a. the direct or indirect change in ownership or control of the Company effected through one transaction, or a series of related transactions within a twelve-month period, as a result of which any Person or group of Persons acting in concert, directly or indirectly acquires (i) beneficial ownership of more than half of the Company’s issued share capital and/or (ii) the ability to cast more than half of the voting rights in the General Meeting;
b. at any time during a period of twelve consecutive months, individuals who at the beginning of such period constituted the Board cease to constitute a majority of members of the Board, provided that any new Director who was nominated for appointment by the Board by a vote of at least a majority of the Directors who either were Directors at the beginning of such twelve-month period or whose nomination for appointment was so approved, shall be considered as though such individual were a Director at the beginning of such twelve-month period; | |||
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| c. the consummation of a merger, demerger or business combination of the Company or any Subsidiary with another Person, unless such transaction results in the shares in the Company’s capital outstanding immediately prior to the consummation of such transaction continuing to represent (either by remaining outstanding or by being converted into, or exchanged for, voting securities of the surviving or acquiring Person or a parent thereof) at least half of the voting rights in the General Meeting or in the shareholders’ meeting of such surviving or acquiring Person or parent outstanding immediately after the consummation of such transaction;
d. the consummation of any sale, lease, exchange or other transfer to any Person or group of Persons acting in concert, not being Subsidiaries, in one transaction or a series of related transactions within a twelve-month period, of all or substantially all of the business of the Company and its Subsidiaries; or
e. such other event which the Committee reasonably determines to constitute a change of control in respect of the Company. | ||||
| Closing | The consummation of the transactions contemplated by the BCA. | |||
| Closing Date | The date of the Closing. | |||
| Committee | The following body, as applicable:
a. the Board, to the extent the administration or operation of this Plan relates to Rollover Options held by Participants who are members of the compensation committee established by the Board; or | |||
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| b. the compensation committee established by the Board for all other matters relating to the administration or operation of the Plan. | ||||
| Company | NewAmsterdam Pharma Company N.V. | |||
| DCC | The Dutch Civil Code. | |||
| Director | A member of the Board. | |||
| DR | A depository receipt for a Share issued by Stichting Administratiekantoor EPNAP. | |||
| Exercise Date | The date on which a Rollover Option is duly exercised by or on behalf of the Participant concerned. | |||
| Exercise Price | The exercise price applicable to a Rollover Option. | |||
| FMV | The closing price of a Share on the relevant date (or, if there is no reported sale of Shares on such date, on the last preceding date on which any such reported sale occurred) on the principal stock exchange where Shares have been admitted for trading, unless determined otherwise by the Committee. | |||
| General Meeting | The Company’s general meeting of shareholders. | |||
| Grant Date | The date on which the relevant Rollover Options were originally granted by NewAmsterdam Pharma Holding B.V. as specified in Annex A. | |||
| Participant | The holder of a Rollover Option, including, as the context may require, the rightful heir(s) of a previous holder of such Rollover Option having acquired such Rollover Option as a result of the death of such previous holder. | |||
| Performance Criteria | The performance criteria applicable to a Rollover Option. | |||
| Person | A natural person, partnership, company, association, cooperative, mutual insurance society, foundation or any other entity or body which operates externally as an independent unit or organisation. | |||
| Plan | This Rollover Option plan. | |||
| Plan Share | A Share underlying a Rollover Option. | |||
| Rollover Options | The options to subscribe for or otherwise acquire Shares as listed in Annex A to this Plan, originally issued by NewAmsterdam Pharma Holding B.V. and assumed by the Company, all of which are “Rollover Company Options” as defined by the BCA. | |||
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| Rollover Option Agreements | The agreements governing the existence of the Rollover Options between the Company, NewAmsterdam Pharma Holding B.V. and the respective Participants, in each case dated on or about the Closing Date (as amended from time to time). | |||
| Share | An ordinary share in the Company’s capital. | |||
| Subsidiary | A subsidiary of the Company within the meaning of Section 2:24a DCC. | |||
| Transfer | The (i) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Securities and Exchange Act of 1934, as amended, and the rules and regulations of the United States Securities and Exchange Commission promulgated thereunder, with respect to, any security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii). | |||
| 2.2 | References to statutory provisions are to those provisions as they are in force from time and as amended to time. |
| 2.3 | Terms that are defined in the singular have a corresponding meaning in the plural. |
| 2.4 | Words denoting a gender include each other gender. |
| 2.5 | Except as otherwise required by law, the terms “written” and “in writing” include the use of electronic means of communication. |
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ADMINISTRATION
Article 3
| 3.1 | This Plan shall be administered by the Committee. The Committee’s powers and authorities under this Plan include the authority to perform the following matters, in each case consistent with and subject to the terms of this Plan: |
| a. | amending or waiving the terms applicable to outstanding Rollover Options (including Performance Criteria, if applicable), provided that no such amendment shall take effect without the consent of the affected Participant(s), if such amendment would materially and adversely affect the rights of the Participant(s) under such Rollover Options, except to the extent that any such amendment is made to cause this Plan or the Rollover Options concerned to comply with applicable law, stock exchange rules, accounting principles or tax rules and regulations; |
| b. | making any determination under, and interpreting the terms of, this Plan, any rules or regulations issued pursuant to this Plan and any Rollover Option Agreement; |
| c. | correcting any defect, supplying any omission or reconciling any inconsistency in the Plan or any Rollover Option Agreement; |
| d. | settling any dispute between the Company and any Participant (including any beneficiary of his Rollover Options) regarding the administration and operation of this Plan, any rules or regulations issued pursuant to this Plan, and any Rollover Option Agreement entered into with such Participant; and |
| e. | making any other determination or taking any other action which the Committee considers to be necessary, useful or desirable in connection with the administration or operation of this Plan. |
| 3.2 | The Committee may issue further rules and regulations for the administration and operation of this Plan, consistent with and subject to the terms of this Plan. |
| 3.3 | All decisions of the Committee shall be final, conclusive and binding upon the Company and the Participants (including beneficiaries of Rollover Options). |
ROLLOVER OPTIONS
Article 4
| 4.1 | The Rollover Options shall be governed by the terms and conditions, including vesting terms and applicable Performance Criteria (if any), that applied to such Rollover Options immediately before being assumed by the Company, provided that, in case of any inconsistency between those terms and conditions and this Plan, the provisions of this Plan shall prevail. |
| 4.2 | No Rollover Option is intended to confer any rights on the relevant Participant except as set forth in the applicable Rollover Option Agreement. In particular, no Rollover Option should be construed as giving any Participant the right to remain employed by or to continue to provide services for the Company or any Subsidiary. |
| 4.3 | The exercise period for the Rollover Options shall expire on the tenth anniversary of their respective Grant Dates, or on such earlier date as specified in the applicable Rollover Option Agreement. Unless determined otherwise by the Committee, if the exercise of a Rollover Option is prohibited by applicable law or the Company’s insider trading policy on the last business day of such exercise period, such exercise period shall be extended for a period of one month following the end of such prohibition. |
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| 4.4 | Unless determined otherwise by the Committee, Rollover Options cannot be transferred, pledged or otherwise encumbered, except by testament or hereditary law as a result of death of the Participant concerned. |
| 4.5 | If, as a result of changes in applicable law, accounting principles or tax rules and regulations, or due to a variation of the composition of the Company’s issued share capital (including a share split, reverse share split, redenomination of the nominal value, or as a result of a dividend or other distribution, reorganisation, acquisition, merger, demerger, business combination or other transaction involving the Company or a Subsidiary), an adjustment to this Plan, any Rollover Option Agreement and/or outstanding Rollover Options is necessary to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under this Plan, the Committee may adjust equitably any or all of: |
| a. | the number of Plan Shares available under this Plan; |
| b. | the number of Plan Shares underlying outstanding Rollover Options; and/or |
| c. | the Exercise Price or other terms applicable to outstanding Rollover Options. |
| 4.6 | Any rights, payments and benefits under any Rollover Option shall be subject to repayment and/or recoupment by the Company in accordance with applicable law, stock exchange rules and such policies and procedures as the Company may adopt from time to time. |
VESTING AND EXERCISE
Article 5
| 5.1 | Upon the exercise of vested Rollover Options, the Company shall be obliged to deliver to the Participant concerned (or the beneficiary of such Rollover Options, as applicable), the Plan Shares underlying such Rollover Options or, if such Participant elects to receive DRs instead of Plan Shares, the equivalent number of DRs. |
| 5.2 | Only vested Rollover Options may be exercised in accordance with their terms. A Rollover Option can only be exercised by or on behalf of the Participant holding such Rollover Option. Notwithstanding anything to the contrary in this Plan, the exercise of a vested Rollover Option shall always be and remain suspended until a registration statement registering the issuance of the Plan Shares issuable pursuant thereto has been filed with the United States Securities and Exchange Commission. |
| 5.3 | A Rollover Option can only be exercised through the use of an electronic system or platform to be designated by the Committee (if and when such system or platform has been set up by the Company), or otherwise by delivering written notice to the Company in a form approved by the Committee. |
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| 5.4 | Upon the exercise of a Rollover Option, the applicable Exercise Price must immediately be paid in cash, wire transfer of immediately available funds or by check payable to the order of the Company, provided that the Committee, subject to applicable law, may allow such Exercise Price to be satisfied on a cashless or net settlement basis, applying any of the following methods (or a combination thereof): |
| a. | by means of an immediate sale by or on behalf of the relevant Participant of part of the Plan Shares underlying the Rollover Option(s) being exercised, with sale proceeds equal to the Exercise Price being remitted to the Company and any remaining net sale proceeds (less applicable costs, if any) being paid to such Participant; |
| b. | by means of the relevant Participant forfeiting his entitlement to receive part of the Plan Shares underlying the Rollover Option(s) being exercised at FMV on the Exercise Date and charging the aggregate nominal value of the remaining Plan Shares underlying such Rollover Option(s) against the Company’s reserves which are recognized for Dutch dividend withholding tax purposes; |
| c. | by means of the relevant Participant surrendering his entitlement to receive part of the Plan Shares underlying the Rollover Option(s) being exercised at FMV on the Exercise Date, against the Company becoming due an equivalent amount to such Participant and setting off that obligation against the Company’s receivable with respect to payment of the applicable Exercise Price; or |
| d. | by means of the relevant Participant surrendering and transferring Shares to the Company (which may include Plan Shares underlying the Rollover Option(s) being exercised) at FMV on the Exercise Date. |
| 5.5 | When a Rollover Option is exercised, the Company shall, at the discretion of the Committee, subject to applicable law and the Company’s insider trading policy: |
| a. | issue new Plan Shares to the relevant Participant; or |
| b. | transfer existing Plan Shares held by the Company to the relevant Participant, |
provided, in each case, that (i) Plan Shares may be delivered in the form of book-entry securities representing those Plan Shares (or beneficial ownership of those Plan Shares entitling the holder to exercise or direct the exercise of voting rights attached thereto) credited to the securities account designated by the relevant Participant and (ii) if such Participant elects to receive DRs instead of Plan Shares, the Company shall cause such DRs to be issued to the Participant. Furthermore, Plan Shares (or DRs, as applicable) may be delivered as described in the previous sentence to a Person designated by the relevant Participant, with the prior approval of the Committee, as beneficiary of his Rollover Options. The Plan Shares (or DRs, as applicable) shall be delivered in such form(s) as may be determined by the Committee and shall be subject to such stop transfer orders and other restrictions as the Committee may deem required or advisable. Furthermore, the Committee may determine that certificates for such Shares (or DRs, as applicable) shall bear an appropriate legend referring to the terms, conditions and restrictions applicable thereto.
8
| 5.6 | If a Rollover Option is exercised and such Rollover Option does not relate to a whole number of Plan Shares, the number of Plan Shares underlying such Rollover Option shall be rounded down to the nearest integer. |
PLAN SHARES AVAILABLE FOR ROLLOVER OPTIONS Article 6
| 6.1 | Subject to Article 4.5, the Plan Shares underlying Rollover Options, irrespective of whether such Rollover Options have been exercised, may not represent more than 1,736,545 Shares. |
| 6.2 | Plan Shares underlying Rollover Options which expire, which are cancelled or otherwise terminated, shall no longer be available under this Plan. |
CHANGE OF CONTROL
Article 7
| 7.1 | If long-term incentive awards are granted in assumption of, or in substitution or exchange for, outstanding Rollover Options in connection with a Change of Control and the Committee has determined that such awards are sufficiently equivalent to the outstanding Rollover Options concerned, then such outstanding Rollover Options shall be cancelled and terminated upon the replacement awards being granted to the Participants concerned. |
| 7.2 | If, in connection with a Change of Control, outstanding Rollover Options are not replaced by long-term incentive awards as described in Article 7.1, or are replaced by long-term incentive awards which the Committee does not consider to be sufficiently equivalent to such outstanding Rollover Options, then such Rollover Options shall immediately vest in full, unless the Committee decides otherwise. |
| 7.3 | For purposes of this Article 7, awards shall not be considered to be “sufficiently equivalent” to outstanding Rollover Options, if the underlying securities are not widely held and publicly traded on a regulated national stock exchange. |
LOCK-UP
Article 8
| 8.1 | In connection with any registration of the Company’s securities under United States securities laws, to the extent requested by the Company or the underwriters managing any offering of the Company’s securities, and except as otherwise approved by the Committee or pursuant to any exceptions approved by such underwriters, a Participant may not Transfer any Shares acquired by a Participant pursuant to the issuance, vesting or exercise of any Rollover Option prior to such period following the effective date of such registration as designated by such underwriters, not to exceed 180 days following such registration. |
9
| 8.2 | The Company may impose stop-transfer instructions with respect to the Shares subject to the restriction stipulated by Article 8.1 until the end of the lock-up period referred to in that provision. |
TAX
Article 9
| 9.1 | Any and all tax liability (e.g., any wage tax or income tax) and employee social security premiums due in connection with or resulting from the granting, vesting, exercise of a Rollover Options (or the implementation of the Plan) or any payment or transfer under a Rollover Option (or under the Plan generally) shall be for the account of the relevant Participant. |
| 9.2 | The Company or any Subsidiary may, and each Participant shall permit the Company or any Subsidiary to, withhold from any Rollover Options granted or any payment due or transfer made under any Rollover Options (or under the Plan generally) or from any compensation or other amount owing to a Participant the amount (in cash, Shares, other Rollover Options, other property, net settlement or any combination thereof) of applicable income taxes or (wage) withholding taxes due in respect of a Rollover Option, the grant of a Rollover Option, its exercise (or the implementation of the Plan), or any payment or transfer under such Rollover Option (or under the Plan generally) and to take such other action, including providing for (elective) payment of such amounts in cash or Shares by the Participant, as may be necessary in the option of the Company to satisfy all obligations for the payment of such taxes. In addition, the Company may cause the sale by or on behalf of the relevant Participant of part of the Plan Shares underlying any Rollover Option being exercised, with sale proceeds equal to the applicable wage or withholding taxes being remitted to the Company and any remaining net sale proceeds (less applicable costs, if any) being paid to such Participant. |
| 9.3 | This Plan is governed by the tax laws and social security legislation and regulations prevailing at the date a certain taxable event occurs. If any tax and/or employee social security legislation or regulations are amended and any tax or employee social security levies become payable as a result of such legislative amendment, the costs and the risk related thereto shall be born solely by the relevant Participant. |
| 9.4 | Notwithstanding the provisions of Article 9.2, where, in relation to a Rollover Option granted under this Plan, the Company or any Subsidiary (as the case may be) is liable, or is in accordance with the current practice believed by the Committee to be liable, to account for any tax or social security authority for any sum in respect of any tax or social security liability of the Participant, the Rollover Option may not be exercised unless the relevant Participant has paid to the Company or the relevant Subsidiary (as the case may be) an amount sufficient to discharge the liability). |
10
| 9.5 | If, and to the extent, the Company or any Subsidiary (as the case may be) is not reimbursed, by means of the provisions of Article 9.2 or 9.4, for any wage tax or income tax, employee’s social security contributions liability or any other liabilities for which the Company or a Subsidiary (as the case may be) has an obligation to withhold and account, the Participant shall indemnify and hold harmless the Company or any Subsidiary (as the case may be) for any such taxes paid by the Company or any Subsidiary (as the case may be). |
| 9.6 | For the avoidance of doubt, the provisions of this Article 9 shall apply to a Participant’s liabilities that may arise on a taxable event in any jurisdiction. |
DATA PROTECTION
Article 10
| 10.1 | The Company may process personal data relating to the Participants in connection with the administration and operation of this Plan. The personal data of the Participants which may be processed in this respect may include a copy of an identification document, contact details and bank and securities account numbers. Each Participant’s personal data shall be stored by the Company for such time period as is necessary to administer such Participant’s participation in the Plan or as otherwise permitted under applicable law. |
| 10.2 | Each Participant’s personal data shall be handled by the Company in accordance with applicable law, including the General Data Protection Regulation (GDPR) and the rules and regulations promulgated pursuant thereto. Participants have the right to lodge complaints with an applicable supervisory authority regarding the Company’s processing of personal data pursuant to this Plan. |
| 10.3 | The Company shall implement technical, physical and organisational measures designed to protect personal data processed pursuant to Article 10.1. Personnel or third parties that have access to such personal data shall be bound by confidentiality obligations. |
| 10.4 | The Company shall abide by any statutory rights the Participants may have regarding their respective personal data processed pursuant to Article 10.1, which may include the right to access, rectification, erasure, restriction of processing, objection to processing and portability of such personal data. |
| 10.5 | In connection with the administration and operation of this Plan, the Company may transfer personal data processed pursuant to Article 10.1 to one or more third parties, provided that there is a legitimate interest in doing so. Where such third parties are located outside the European Economic Area in countries that are not considered to provide for an adequate level of data protection, the Company shall ensure that sufficient data protection safeguards are put in place, failing which explicit consent for such transfer shall be obtained from the Participant(s) concerned. |
| 10.6 | The Company may establish one or more privacy policies providing further information on data protection and applying to the processing of personal data of the Participants by the Company in connection with the administration and operation of this Plan. |
11
AMENDMENTS, TERM AND TERMINATION Article 11
| 11.1 | Except to the extent prohibited by applicable law and unless otherwise expressly provided in an Rollover Option Agreement, the Board may amend, supplement, suspend or terminate this Plan (or any portion thereof) pursuant to a resolution to that effect, provided that no such amendment, supplement, suspension or termination shall take effect without: |
| a. | approval of the General Meeting, if such approval is required by applicable law or stock exchange rules; and/or |
| b. | the consent of the affected Participant(s), if such action would materially and adversely affect the rights of such Participant(s) under any outstanding Rollover Option, except to the extent that any such amendment, supplement or termination is made to cause this Plan to comply with applicable law, stock exchange rules, accounting principles or tax rules and regulations. |
| 11.2 | Notwithstanding anything to the contrary in the Plan, the Committee may amend the Plan and/or any Rollover Option Agreement in such manner as may be necessary or desirable to enable the Plan and/or such Rollover Option Agreement to achieve its stated purposes in any jurisdiction in a tax-efficient manner and in compliance with local laws, rules and regulations to recognise differences in local law, tax policy or custom. The Committee also may impose conditions on the exercise or vesting of Rollover Option in order to minimise the Company’s obligation with respect to tax equalisation for Participants on assignments outside their home country and/or to enable the Company to meet its obligations with respect to the withholding of taxes and social security contributions. |
| 11.3 | The Plan shall become effective on the Closing Date and immediately prior to the Merger (as defined in the BCA). |
GOVERNING LAW AND JURISDICTION
Article 12
This Plan shall be governed by and shall be construed in accordance with the laws of the Netherlands. Subject to Article 3.1 paragraph d., any dispute arising in connection with these rules shall be submitted to the exclusive jurisdiction of the competent court in Amsterdam, the Netherlands.
Exhibit 8.1
Subsidiaries of NewAmsterdam Pharma Company N.V.
| Legal Name |
Jurisdiction of Incorporation | |
| Frazier Lifesciences Acquisition Corporation | Delaware | |
| NewAmsterdam Pharma Holding B.V. | Netherlands | |
| NewAmsterdam Pharma B.V. | Netherlands | |
| NewAmsterdam Pharma Corporation | Delaware |
Exhibit 15.1
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
Defined terms included below shall have the same meaning as terms defined and included elsewhere in the report on Form 20-F of which this exhibit forms a part (the “Report”).
Introduction
The following unaudited pro forma condensed combined financial information is provided to aid you in your analysis of the financial aspects of the Business Combination. The following unaudited pro forma condensed combined financial information presents the historical financial information of FLAC and NewAmsterdam Pharma adjusted to give effect to the Business Combination. The following unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X as amended by the final rule, Release No. 33-10786 “Amendments to Financial Disclosures about Acquired and Disposed Businesses.”
The unaudited pro forma condensed combined statement of financial position as at June 30, 2022, gives pro forma effect to the Business Combination as if it had been consummated as of that date. The unaudited pro forma condensed combined statements of profit or loss for the year ended December 31, 2021 and the six months ended June 30, 2022, give pro forma effect to the Business Combination as if it had occurred as of January 1, 2021.
The unaudited pro forma condensed combined financial information has been presented for illustrative purposes only and is not necessarily indicative of the financial position and results of operations that would have been achieved had the Business Combination and related transactions occurred on the dates indicated. Further, the unaudited pro forma condensed combined financial information may not be useful in predicting the future financial condition and results of operations of the post-combination company. The actual financial position and results of operations may differ significantly from the pro forma amounts reflected herein due to a variety of factors. The unaudited pro forma adjustments represent management’s estimates based on information available as of the date of the unaudited pro forma condensed combined financial information and is subject to change as additional information becomes available and analyses are performed. This pro forma financial information should be read in conjunction with the financial statements of FLAC and NewAmsterdam Pharma which are incorporated by reference within the Report and the Proxy Statement/Prospectus sections titled “NewAmsterdam Pharma’s Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “FLAC’s Management’s Discussion and Analysis of Financial Condition and Results of Operation,” “Selected Historical Financial Information of NewAmsterdam Pharma,” and “Selected Historical Financial Information of FLAC”.
The unaudited pro forma condensed combined statement of profit or loss for the year ended December 31, 2021 has been prepared using the following:
| • | the consolidated statement of operations for the year ended December 31, 2021 derived from the audited statement of operations for the year ended December 31, 2021 and for the period from October 7, 2020 (inception) through December 31, 2020 of FLAC and the related notes thereto incorporated by reference in the Report. The consolidated financial statements of FLAC have been prepared under U.S. GAAP with the U.S. dollar as its reporting currency; and |
| • | the consolidated statement of profit or loss and other comprehensive loss for the year ended December 31, 2021 derived from the audited consolidated financial statements as at December 31, 2021 and 2020 and for the two years in the period ending December 31, 2021 and the related notes thereto incorporated by reference in the Report. The consolidated financial statements of NewAmsterdam Pharma have been prepared in accordance with IFRS with Euros as its presentation currency. |
The unaudited pro forma condensed combined statement of financial position as at June 30, 2022 and the unaudited pro forma condensed combined statement of profit or loss for the six months ended June 30, 2022 have been prepared using the following:
| • | the unaudited condensed balance sheet as at June 30, 2022 and the unaudited condensed statement of operations for the six months ended June 30, 2022 derived from the condensed balance sheet as at June 30, 2022 and December 31, 2021 and the unaudited statement of operations for the six months ended June 30, 2022 and 2021 of FLAC and the related notes thereto included in the Quarterly Report on Form 10-Q filed by FLAC with the SEC on August 11, 2022. The consolidated financial statements of FLAC have been prepared under U.S. GAAP with the U.S. dollar as its reporting currency; and |
| • | the unaudited condensed consolidated statement of financial position of NewAmsterdam Pharma as at June 30, 2022 and the unaudited condensed consolidated statement of profit or loss and other comprehensive loss for the six months ended June 30, 2022 derived from the unaudited condensed consolidated financial statements as at and for the six months ended June 30, 2022 and 2021 and the related notes thereto incorporated by reference in the Report. The unaudited condensed consolidated financial statements of NewAmsterdam Pharma have been prepared in accordance with IAS 34 – Interim Financial Reporting with Euros as its presentation currency. |
The unaudited pro forma condensed combined financial information gives effect to adjustments required to convert FLAC historical financial information to IFRS and its reporting currency to Euros.
Description of the Transaction
As further described elsewhere in the Report, subject to the terms and conditions of the Business Combination Agreement, upon consummation of the Business Combination, among other things:
| • | The shareholders of NewAmsterdam Pharma contributed all outstanding shares in the capital of NewAmsterdam Pharma to Holdco in exchange for the issuance of ordinary shares in the share capital of Holdco; |
| • | Immediately after giving effect to the Exchange, the legal form of Holdco was converted from a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) to a public limited liability company (naamloze vennootschap); |
| • | After giving effect to the Exchange, Merger Sub was merged with and into FLAC, with FLAC surviving the merger as a wholly owned subsidiary of Holdco; |
| • | In connection with the Merger, each issued and outstanding ordinary share of FLAC was canceled and extinguished in exchange for a claim for a Holdco Share, and such claim was then contributed into Holdco against the issuance of a corresponding Holdco Share; |
| • | Immediately following the Merger, each outstanding warrant to purchase a Class A ordinary share, par value $0.0001 per share, of FLAC became a warrant to purchase one Holdco Share, on the same contractual terms which resulted in the issuance of 4,767,000 Holdco Warrants; |
| • | Each NewAmsterdam Pharma Option that was outstanding and unexercised remained outstanding, and to the extent unvested, such option will continue to vest in accordance with its applicable terms, and at the time of the Exchange, such NewAmsterdam Pharma Options became options to purchase, and will when exercised be settled in Holdco Shares; |
| • | Promptly following the Merger, the Surviving Company changed its jurisdiction of incorporation by deregistering as a Cayman Islands exempted company and continuing and domesticating as a corporation incorporated under the laws of the State of Delaware (the “Domestication”); |
| • | In addition to the transactions described above, 8,656,330 Holdco Shares were issued to Amgen and MTPC pursuant to their profit rights granted upon the acquisition of Dezima as described in the Proxy |
| Statement/Prospectus under the section titled “NewAmsterdam Pharma’s Management Discussion and Analysis of Financial Condition and Results of Operations—Contractual Obligations and Commitments—2020 SPA and Profit Right Agreement”; and |
| • | Following the Merger, upon the achievement of a certain clinical development milestone, Holdco will issue to the Participating Shareholders, Amgen, MTPC and the Participating Optionholders, the Earnout Shares, which in the case of the Participating Optionholders will take the form of awards of restricted stock units under the Holdco LTIP. The development milestone consists of achievement and public announcement of Positive Phase 3 Data (as defined in the Business Combination Agreement) for each of NewAmsterdam Pharma’s BROADWAY clinical trial and BROOKLYN clinical trial at any time during the Earnout Period. As a result, no Earnout Shares will be issuable if the applicable milestone is not achieved within the Earnout Period. |
On July 25, 2022, concurrently with the execution of the Business Combination Agreement, FLAC and Holdco also entered into subscription agreements with certain investors, pursuant to which the PIPE Investors agreed to subscribe for and purchase from Holdco, and Holdco agreed to issue and sell to such PIPE Investors, an aggregate of 23,460,000 Holdco Shares at $10.00 per share for gross proceeds of $234.6 million. Such Holdco Shares were issued in connection with the Closing of the Business Combination.
As of June 30, 2022, 14,301,000 Class A ordinary shares, par value $0.0001 per share, of FLAC (“FLAC Class A Ordinary Shares”) were outstanding. The FLAC Class A Ordinary Shares include (i) 13,800,00 FLAC Class A Ordinary Shares issued in FLAC’s initial public offering (the “FLAC Public Shares”) and (ii) 501,000 issued to the Sponsor as part of a private placement which closed concurrently with FLAC’s initial public offering (“FLAC Private Placement Shares”) which do not hold redemption rights. As of June 30, 2022, 3,450,000 FLAC Class B Ordinary Shares were outstanding and held by the FLAC Initial Shareholders. Redemption rights were provided to FLAC Public Shares shareholders in connection with the Business Combination. Holders of FLAC Public Shares exercised redemption rights with respect to a total of 4,565,862 shares. Based upon the balance of Investments held in Trust Account at June 30, 2022 such shares had a redemption value of €9.56 ($10.01, converted at a rate of $1.0469 per EUR) per share for a total redemption amount of €43.6 million ($45.7 million, converted at a rate of $1.0469 per EUR).
Anticipated Accounting for the Business Combination
The Business Combination will be accounted for as a capital reorganization in accordance with IFRS. Under this method of accounting, FLAC will be treated as the “acquired” company for accounting purposes. As FLAC does not meet the definition of a business under IFRS 3 – Business Combinations (“IFRS 3”), the net assets of FLAC will be stated at historical cost, with no goodwill or other intangible assets recorded. As a result of the Business Combination and related transactions, the existing shareholders of NewAmsterdam Pharma will continue to retain control through their majority ownership of Holdco.
NewAmsterdam Pharma has been determined to be the accounting acquirer based on an evaluation of the following facts and circumstances:
| • | Former NewAmsterdam Pharma’s shareholders have the largest voting interest in Holdco; |
| • | Former members of NewAmsterdam Pharma’s senior management makes up a majority of the senior management of Holdco; |
| • | The business of NewAmsterdam Pharma comprises the ongoing operations of Holdco; and |
| • | NewAmsterdam Pharma is the larger entity, in terms of substantive operations and employee base. |
As FLAC does not meet the definition of a business in accordance with IFRS 3, the Business Combination is accounted for within the scope of IFRS 2 – Share-based Payment (“IFRS 2”). Any excess of the fair value of Holdco Shares issued to FLAC Shareholders over the fair value of FLAC’s identifiable net assets acquired represents compensation for the service of a stock exchange listing for its shares provided by FLAC and is expensed as incurred.
Basis of Pro Forma Presentation
The adjustments presented on the pro forma condensed combined financial statements have been identified and presented to provide an understanding of NewAmsterdam Pharma upon consummation of the Business Combination for illustrative purposes.
The following unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X as amended by the final rule, Release No. 33-10786 “Amendments to Financial Disclosures about Acquired and Disposed Businesses.” Release No. 33-10786 replaces the existing pro forma adjustment criteria with simplified requirements to depict the accounting for the transaction (“Transaction Accounting Adjustments”) and present the reasonably estimable synergies and other transaction effects that have occurred or are reasonably expected to occur (“Management’s Adjustments”). We have elected not to present Management’s Adjustments and will only be presenting Transaction Accounting Adjustments in the following unaudited pro forma condensed combined financial information.
The unaudited pro forma condensed combined financial information is for illustrative purposes only. The financial results may have been different had the companies always been combined. You should not rely on the unaudited pro forma condensed combined financial information as being indicative of the historical results that would have been achieved had the companies always been combined or the future results that NewAmsterdam Pharma will experience. FLAC and NewAmsterdam Pharma have not had any historical relationship prior to the Business Combination. Accordingly, no pro forma adjustments were required to eliminate activities between the companies. The unaudited pro forma condensed combined financial information gives effect to those transactions contemplated in the Business Combination Agreement and those transactions which occur as a direct result of the consummation of the Business Combination. No effect has been given to events which occurred subsequent to the end of the period presented herein which do not occur as a direct result of the consummation of the Business Combination, including:
| • | Receipt of the non-refundable, non-creditable, upfront amount of €115 million from A. Menarini International Licensing S.A. |
| • | On November 21, 2022, Holdco granted (i) options to purchase an aggregate of 3,412,264 Holdco Shares to certain of its directors and (ii) options to purchase an aggregate of 2,244,383 Holdco Shares to certain of its executive officers (excluding awards granted to executive officers who also serve as directors). Such options each have an expiration date of ten years from the date of grant and an exercise price of $10.00. |
For more information regarding significant events which occurred following the end of the period presented refer to “Note 15—Events After the Reporting Period” in the NewAmsterdam Pharma unaudited condensed consolidated financial statements as at June 30, 2021 and for the six months ended June 30, 2022 and 2021 incorporated by reference in the Report and the section titled “Compensation” in the Report.
The following table summarizes the pro forma weighted average number of Holdco Shares outstanding for each of the year ended December 31, 2021 and the six months ended June 30, 2022 based upon the actual redemption of 4,565,862 FLAC Class A Ordinary Shares:
| Year ended December 31, 2021 | ||||||||
| (Shares) | Ownership % | |||||||
| Former NewAmsterdam Pharma Shareholders(1) |
44.914.642 | 55 | % | |||||
| Former FLAC Class A Ordinary Shares(2) |
9.735.138 | 12 | % | |||||
| Former FLAC Class B Ordinary Shares |
3.450.000 | 4 | % | |||||
| PIPE Investors(3) |
23.460.000 | 29 | % | |||||
|
|
|
|
|
|||||
| Basic and diluted(4) pro forma weighted average number of shares outstanding |
81.559.780 | 100 | % | |||||
|
|
|
|
|
|||||
| (1) | Includes an aggregate of 8,656,330 shares issued to Amgen and MTPC pursuant to 2020 Profit Rights as described in the Proxy Statement/Prospectus under the section titled “NewAmsterdam Pharma’s Management Discussion and Analysis of Financial Condition and Results of Operations—Contractual Obligations and Commitments—2020 SPA and Profit Right Agreement”. |
| (2) | As at December 31, 2022, FLAC had 14,301,000 FLAC Class A Ordinary Shares outstanding. The above includes 501,000 FLAC Private Placement Shares held by the Sponsor and 1,000,000 FLAC Class A Ordinary Shares held by affiliates of the Sponsor and is adjusted for the 4,565,862 FLAC Class A Ordinary Shares which were redeemed. |
| (3) | Includes 4,500,000 Holdco Shares subscribed for by affiliates of the Sponsor in the PIPE Financing. |
| (4) | Excludes 1,886,137 Earnout Shares, 4,185,358 Holdco Options and 4,600,000 and 167,000 Public Warrants and Private Warrants, respectively, as their impact is anti-dilutive. |
| Six months ended June 30, 2022 | ||||||||
| (Shares) | Ownership % | |||||||
| Former NewAmsterdam Pharma Shareholders(1) |
44.914.642 | 55 | % | |||||
| Former FLAC Class A Ordinary Shares(2) |
9.735.138 | 12 | % | |||||
| Former FLAC Class B Ordinary Shares |
3.450.000 | 4 | % | |||||
| PIPE Investors(3) |
23.460.000 | 29 | % | |||||
|
|
|
|
|
|||||
| Basic pro forma weighted average number of shares outstanding |
81.559.780 | 100 | % | |||||
| HoldCo Options(4) |
3.666.279 | |||||||
|
|
|
|||||||
| Diluted(5) pro forma weighted average number of shares outstanding |
85.226.059 | |||||||
|
|
|
|||||||
| (1) | Includes an aggregate of 8,656,330 shares issued to Amgen and MTPC pursuant to 2020 Profit Rights as described in the Proxy Statement/Prospectus under the section titled “NewAmsterdam Pharma’s Management Discussion and Analysis of Financial Condition and Results of Operations—Contractual Obligations and Commitments—2020 SPA and Profit Right Agreement”. |
| (2) | As at June 30, 2022, FLAC had 14,301,000 FLAC Class A Ordinary Shares outstanding. The above includes 501,000 FLAC Private Placement Shares held by the Sponsor and 1,000,000 FLAC Class A Ordinary Shares held by affiliates of the Sponsor and is adjusted for the 4,565,862 FLAC Class A Ordinary Shares which were redeemed. |
| (3) | Includes 4,500,000 Holdco Shares subscribed for by affiliates of the Sponsor in the PIPE Financing. |
| (4) | Calculated based upon the exercise of 4,185,358 Holdco Options at an exercise price of $1.22 and an average market closing price of $9.82 for the period from January 1, 2022 to June 30, 2022. |
| (5) | Excludes 1,886,137 Earnout Shares and 4,600,000 and 167,000 Public Warrants and Private Warrants, respectively. |
PRO FORMA CONDENSED COMBINED STATEMENT OF FINANCIAL POSITION AS AT
JUNE 30, 2022
(UNAUDITED)
(in EUR thousands unless otherwise denoted)
| NewAmsterdam Pharma Historical IFRS |
FLAC Historical U.S. GAAP |
IFRS Policy and Presentation Alignment |
Transaction Accounting Adjustments |
Pro Forma Combined |
||||||||||||||||||||||||||||
| EUR | USD | EUR(1) | FN | FN | ||||||||||||||||||||||||||||
| ASSETS |
||||||||||||||||||||||||||||||||
| Non-Current Assets |
||||||||||||||||||||||||||||||||
| Property, plant and equipment |
175 | — | — | — | — | 175 | ||||||||||||||||||||||||||
| Loan receivable |
728 | — | — | — | (728 | ) | (4) | — | ||||||||||||||||||||||||
| Investments held in Trust Account |
— | 138,133 | 131,945 | — | (131,945 | ) | (4) | — | ||||||||||||||||||||||||
| Intangible assets |
— | — | — | — | 81,611 | (8) | 81,611 | |||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Total non-current assets |
903 | 138,133 | 131,945 | — | (51,062 | ) | 81,786 | |||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Current Assets |
||||||||||||||||||||||||||||||||
| Trade receivables |
115,000 | — | — | — | — | 115,000 | ||||||||||||||||||||||||||
| Prepayments and other receivables |
12,474 | — | — | 143 | (2) | 4,019 | (10) | 16,636 | ||||||||||||||||||||||||
| Cash and cash equivalents |
89,478 | 615 | 588 | — | 279,455 | (4) | 369,521 | |||||||||||||||||||||||||
| Prepaid expenses |
— | 150 | 143 | (143 | ) | (2) | — | — | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Total current assets |
216,952 | 765 | 731 | — | 283,474 | 501,157 | ||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Total Assets |
217,855 | 138,898 | 132,676 | — | 232,412 | 582,943 | ||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| NewAmsterdam Pharma Historical IFRS |
FLAC Historical U.S. GAAP |
IFRS Policy and Presentation Alignment |
Transaction Accounting Adjustments |
Pro Forma Combined |
||||||||||||||||||||||||||||
| USD | EUR(1) | FN | FN | |||||||||||||||||||||||||||||
| EQUITY AND LIABILITIES |
||||||||||||||||||||||||||||||||
| Commitments and Contingencies |
||||||||||||||||||||||||||||||||
| Class A ordinary share subject to possible redemption, $0.0001 par value; 13,800,000 shares issued and outstanding at redemption value of $10.00 per share |
— | 138,033 | 131,849 | (131,849 | ) | (3) | — | — | ||||||||||||||||||||||||
| Equity |
||||||||||||||||||||||||||||||||
| Share capital |
163,556 | — | — | * | — | 426,439 | (5) | 589,995 | ||||||||||||||||||||||||
| Other Reserves |
1,029 | — | — | — | — | 1,029 | ||||||||||||||||||||||||||
| Preference shares, $0.0001 par value; 1,000,000 shares authorized; none issued or outstanding at December 31, 2021 and 2020 |
— | — | — | — | — | — | ||||||||||||||||||||||||||
| Class A ordinary shares, $0.0001 par value; 479,000,000 shares authorized; 501,000 shares issued and outstanding (excluding 13,800,000 shares subject to possible redemption |
— | — | * | — | — | — | — | |||||||||||||||||||||||||
| Class B ordinary shares, $0.0001 par value; 20,000,000 shares authorized; 3,450,000 shares issued and outstanding |
— | — | * | — | — | — | — | |||||||||||||||||||||||||
| Additional paid-in capital |
— | — | — | — | — | — | ||||||||||||||||||||||||||
| Retained earnings |
19,837 | (6,181 | ) | (5,904 | ) | — | (59,139 | ) | (6) | (45,206 | ) | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Total equity |
184,422 | (6,181 | ) | (5,904 | ) | — | 367,300 | 545,818 | ||||||||||||||||||||||||
| Non-current liabilities |
||||||||||||||||||||||||||||||||
| Deferred revenue |
7,440 | — | — | — | — | 7,440 | ||||||||||||||||||||||||||
| Lease liability |
90 | — | — | — | — | 90 | ||||||||||||||||||||||||||
| Deferred underwriting commissions |
— | 4,830 | 4,614 | — | (4,614 | ) | (4) | — | ||||||||||||||||||||||||
| Derivative warrant liabilities |
— | 381 | 365 | — | — | (11) | 365 | |||||||||||||||||||||||||
| Derivative earnout liability |
— | — | — | — | 6,506 | (9) | 6,506 | |||||||||||||||||||||||||
| Loans and borrowings |
— | — | — | 131,849 | (3) | (131,849 | ) | (7) | — | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Total non-current liabilities |
7,530 | 5,211 | 4,979 | 131,849 | (129,957 | ) | 14,401 | |||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Current liabilities |
||||||||||||||||||||||||||||||||
| Accounts payable |
— | 51 | 48 | (48 | ) | (2) | — | — | ||||||||||||||||||||||||
| Accrued expenses |
— | 1,784 | 1,704 | (1,704 | ) | (2) | (4,931 | ) | (4) | (4,931 | ) | |||||||||||||||||||||
| Loans and borrowings |
— | — | — | — | — | — | ||||||||||||||||||||||||||
| Lease liability |
61 | — | — | — | — | 61 | ||||||||||||||||||||||||||
| Trade and other payables |
11,782 | — | — | 1,752 | (2) | — | 13,534 | |||||||||||||||||||||||||
| Deferred revenue |
14,060 | — | — | — | — | 14,060 | ||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Total current liabilities |
25,903 | 1,835 | 1,752 | — | (4,931 | ) | 22,724 | |||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Total liabilities |
33,433 | 7,046 | 6,731 | 131,849 | (134,888 | ) | 37,125 | |||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Total equity and liabilities |
217,855 | 138,898 | 132,676 | — | 232,412 | 582,943 | ||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| * | The financial statements of FLAC are presented in whole dollars whereas the historical financial information of FLAC in the above unaudited condensed combined statement of financial position is presented initially in thousands of dollars. FLAC Class A Ordinary Shares and FLAC Class B Ordinary Shares at June 30, 2022 are $50 and $345, respectively, as seen in FLAC’s balance sheet as of June 30, 2022 which is found elsewhere within this Proxy Statement/Prospectus. As a result of rounding these amounts are shown as zero. These amounts would be reclassified into share capital as part of adjustment (2) below and eliminated in adjustment (5) below. |
Pro Forma Adjustments to the Unaudited Condensed Combined Statement of Financial Position
The adjustments included in the unaudited condensed combined statement of financial position as at June 30, 2022 are as follows:
IFRS Policy and Presentation Alignment
| (1) | The historical financial information of FLAC was prepared in accordance with U.S. GAAP and presented in USD. The historical financial information was translated from USD to EUR using the historical closing exchange rate, as of June 30, 2022, of $1.0469 per EUR. |
| (2) | Reflects adjustments to align FLAC historical financial statements with the presentation of NewAmsterdam Pharma financial statements. |
| (3) | Reflects the U.S. GAAP to IFRS conversion adjustment related to the reclassification of FLAC’s historical commitments and contingencies (FLAC Class A Ordinary Shares subject to possible redemption) into non-current liabilities (Loans and borrowings). Under U.S. GAAP shares of FLAC Class A Ordinary Shares are classified as temporary equity because they are redeemable at the sole discretion of the shareholder. As FLAC shareholders have the right to require FLAC to redeem the FLAC Class A Ordinary Shares and FLAC has an irrevocable obligation to deliver cash or another financial instrument for such redemption, this is reclassified from temporary equity under U.S. GAAP to other liabilities under IFRS. |
Transaction Accounting Adjustments
| (4) | Reflects adjustments to cash for the following items: |
| a. | Reflects proceeds of €88.3 million from the trust account which is calculated as €131.9 million ($138.1 million, converted at a rate of $1.0469 per EUR) of cash held in trust as at June 30, 2022, less redemption payments for 4,565,862 shares at a price of €9.56 ($10.01, converted at a rate of $1.0469 per EUR) per share, totaling €43.6 million ($45.7 million, converted at a rate of $1.0469 per EUR); |
| b. | The issuance of 23,460,000 Holdco Shares to PIPE Investors in exchange for €224.1 million ($234.6 million, converted at a rate of $1.0469 per EUR); |
| c. | Proceeds from the repayment of a loan made by NewAmsterdam Pharma to an executive which is classified on the NewAmsterdam Pharma balance sheet as a loan receivable. This loan was repaid on July 19, 2022; |
| d. | Payment of the deferred underwriting commission incurred in connection with the initial public offering of FLAC; |
| e. | Payment of estimated transaction costs incurred in connection with the Business Combination and PIPE Financing, of which €4.9 million was included in accrued expenses at June 30, 2022; and |
| f. | Payment of expected premium for directors’ and officers’ (“D&O”) insurance which must be obtained according to the terms of the Business Combination Agreement. The offsetting entry is seen in Prepaids and other receivables. |
| In EUR thousands | ||||
| Proceeds from cash held in trust account after payments to redeeming shareholders |
88,290 | |||
| Proceeds from PIPE |
224,090 | |||
| Proceeds from repayment of outstanding loan to NewAmsterdam Pharma executive |
728 | |||
| Payment of deferred underwriting commission |
(4,614 | ) | ||
| Payment of estimated transaction costs incurred in connection with the Business Combination and PIPE Financing |
(24,039 | ) | ||
| Payment of expected premium for D&O insurance |
(5,000 | ) | ||
|
|
|
|||
| Total Cash Adjustment |
279,455 | |||
|
|
|
|||
| (5) | Reflects adjustments to share capital for the following items: |
| a. | The issuance of 23,460,000 Holdco Shares to PIPE Investors in exchange for €224.1 million ($234.6 million, converted at a rate of $1.0469 per EUR); |
| b. | The fair value of 13.2 million Holdco Shares issued in exchange for 9.7 million shares of FLAC Class A Ordinary Shares and 3.5 million shares of FLAC Class B Ordinary Shares. The fair value of such shares is calculated in the table in adjustment 6b below; |
| c. | As described in “Note 11—Asset Acquisition of NewAmsterdam Pharma B.V.” in the audited consolidated financial statements of NewAmsterdam Pharma Holding B.V. incorporated by reference in the Report and the Proxy Statement/Prospectus under the section titled “NewAmsterdam Pharma’s Management Discussion and Analysis of Financial Condition and Results of Operations—Contractual Obligations and Commitments—2020 SPA and Profit Right Agreement.” NewAmsterdam Pharma entered into a share purchase agreement with Amgen to acquire the assets and liabilities of Dezima which was determined to be an asset acquisition under IFRS. As part of the asset acquisition, NewAmsterdam Pharma entered into a contingent earnout, or profit right, with Amgen and a similar arrangement with MTPC. Per the contingent earnout, in the event the company raises more than €100 million in an initial public offering, Amgen and MTPC are entitled to an aggregate number of shares equivalent to 17.6% of the pre-public offering valuation. In total 44.9 million Holdco shares were issued upon the closing of the transactions contemplated by the Business Combination Agreement in exchange for all of the outstanding equity of NewAmsterdam Pharma, of which 8.7 million were issued directly to Amgen and MTPC. The fair value is based upon a share price of €9.43 ($9.87, converted at a rate of $1.0469 per EUR), the closing share price on the date of the closing of the Business Combination; and |
| d. | The portion of expected transaction costs incurred in connection with the Business Combination which is capitalized within share capital related to the issuance of new shares. Estimated transaction costs related to the Business Combination total €24.0 million, of which €3.6 million qualifies for capitalization within share capital and the remainder is expensed. Through June 30, 2022 €4.9 million of transaction costs have been incurred, including €1.0 million which was capitalized within prepayments and other receivables and reclassified into share capital as described in Adjustment 10 below. Approximately €19.1 million of additional transaction costs are incurred through the Closing, of which €16.5 million are expensed. Costs which qualify for capitalization, which include legal and advisor fees directly related to the equity issuance, are allocated among all Holdco Shares issued with the portion related to those shares issued to FLAC shareholders and in connection with the PIPE being capitalized. |
The table below sets forth the amounts for each item described above and the total share capital adjustment amount:
| In EUR thousands | ||||
| Issuance of 23.5 million Holdco Shares to PIPE Investors |
224,090 | |||
| Issuance of 13.2 million Holdco Shares to FLAC shareholders |
124,307 | |||
| Issuance of 8.7 million Holdco Shares in connection with Amgen and MTPC profit rights |
81,610 | |||
| Portion of transaction costs incurred in connection with the Business Combination which is capitalized within share capital |
(3,568 | ) | ||
|
|
|
|||
| Total Share Capital Adjustment |
426,439 | |||
|
|
|
|||
In addition to the transactions listed above, the following transactions are considered:
| e. | 36.2 million shares of Holdco were issued in exchange for all of the outstanding shares in NewAmsterdam Pharma, excluding the 8.7 million which were issued directly to Amgen and MTPC pursuant to each of their respective profit rights. The entry to record the elimination of NewAmsterdam Pharma historical share capital and the establishment of Holdco share capital offset resulting in a net impact of zero. |
| f. | Each NewAmsterdam Pharma Option that is outstanding and unexercised remained outstanding, and to the extent unvested, such options continue to vest in accordance with its applicable terms, and at the time of the Exchange, such NewAmsterdam Pharma Options became options to purchase, and will when exercised be settled in Holdco Shares. The NewAmsterdam Pharma Options have equal terms and value before and after the Exchange and any entry to record the Exchange as it relates to the options has a net impact of zero. |
| (6) | Reflects adjustments to retained earnings for the following items: |
| a. | The elimination of historical FLAC retained earnings; |
| b. | The recording of an expense in accordance with IFRS 2 for the excess of the value of the Holdco Shares issued to FLAC stockholders over the fair value of FLAC’s identifiable net assets acquired, representing a listing cost. |
The share-based compensation related to the listing cost is calculated as:
| In EUR thousands, unless otherwise denoted |
||||
| Fair Value of shares issued to FLAC shareholders1 |
124,307 | |||
| Less: FLAC net assets2 |
82,290 | |||
|
|
|
|||
| Share-based compensation for listing cost |
42,017 | |||
|
|
|
|||
| 1 | Calculated as €9.43 ($9.87, converted at a rate of $1.0469 per EUR), the closing share price on the date of the closing of the Business Combination multiplied by the 13.2 million Holdco shares issued to FLAC shareholders. |
| 2 | Net assets of FLAC are calculated as assets minus liabilities based upon the audited financial statements of FLAC as at June 30, 2022 and adjusted to give effect to payments from the trust account to redeeming shareholders. The net asset value is converted from USD to EUR at a rate of $1.0469 per EUR. |
| c. | The portion of expected transaction costs incurred after June 30, 2022 in connection with the Business Combination which is expensed. Estimated transaction costs related to the Business Combination total €24.0 million, of which, €4.9 million has been incurred through June 30, 2022. Of the remaining estimated transaction costs €16.5 million are expensed. Costs which do not qualify for capitalization and are expensed as incurred include marketing fees and legal and advisor fees not directly related to the equity issuance. Costs which qualify for capitalization, are allocated among all Holdco Shares issued with the portion related to those shares issued to former NewAmsterdam Pharma shareholders being expensed. The remaining portion of qualifying costs are capitalized within share capital as seen in adjustment (5) above; and |
| d. | The recording of the fair value of the Earnout Shares which are allocated to Participating Shareholders (including Amgen and MTPC for this purpose) but excludes the Participating Optionholders. As per the terms of the Business Combination Agreement upon the achievement the certain clinical development milestone during the Earnout Period, Holdco will issue to the Participating Shareholders (including Amgen and MTPC for this purpose) and Participating Optionholders in total an additional 1,886,137 Holdco Shares. The Earnout Shares allocated to Participating Optionholders will take the form of restricted stock units under Holdco’s long-term incentive plan. The Participating Optionholders will vest in their restricted stock units so long as they provide continued service through the achievement of the clinical development milestone. For the avoidance of doubt, if the clinical development milestone is not achieved during the Earnout Period, but a Participating Optionholder has completed their service requirement, they will not be considered vested in the restricted stock units. There is no immediate financial impact with respect to the Participating Optionholders awards due to the uncertainty of achieving the clinical development milestone. No such service condition exists for the Shareholders awards. The Earnout Shares allocated to the Shareholders are accounted for under IAS 32 – Financial Instruments as a deemed dividend and recorded at fair value as a liability on the balance sheet as seen in adjustment (9) below. |
The table below sets forth the amounts for each item described and the total accumulated loss adjustment amount:
| In EUR thousands | ||||
| Elimination of historical FLAC accumulated loss |
5,904 | |||
| Expense arising under IFRS 2 for the excess of the fair value of shares issued to FLAC stockholders over and above the fair value of FLAC’s identifiable net assets |
(42,017 | ) | ||
| Portion of transaction costs incurred after June 30, 2022 which is expensed |
(16,520 | ) | ||
| Fair value of the earnout shares allocated to shareholders |
(6,506 | ) | ||
|
|
|
|||
| Total Retained Earnings Adjustment |
(59,139 | ) | ||
|
|
|
|||
| (7) | Reflects adjustment to loans and borrowings to give effect to the exchange or redemption of all 13.8 million FLAC Class A Ordinary Shares subject to possible redemption. The impact to share capital is included in entry 5b above. |
| (8) | Reflects the recognition of an intangible asset in connection with an aggregate of 8,656,330 Holdco Shares to be issued to Amgen and MTPC pursuant to each of their respective profit rights described in footnote 5c above. As described in “Note 11—Asset Acquisition of NewAmsterdam Pharma B.V.” in the NewAmsterdam Pharma Holding B.V. consolidated financial statements incorporated by reference in the Report, NewAmsterdam Pharma has made an accounting policy election to record asset acquisitions under the cost accumulation model. The value per Holdco Share is €9.43 ($9.87, converted at a rate of $1.0469 per EUR), the closing share price on the date of the closing of the Business Combination. |
| (9) | Upon the achievement a certain clinical development milestone during the Earnout Period, Holdco will issue 1,886,137 Earnout Shares to the Participating Shareholders (including Amgen and MTPC for this purpose) and Participating Optionholders. 1,725,358 Earnout Shares and 160,778 Earnout Shares are allocated to Participating Shareholders and Participating Optionholders, respectively. The Earnout Shares allocated to Participating Optionholders will take the form of restricted stock units under Holdco’s long-term incentive plan. The Participating Optionholders will vest in their restricted stock units so long as they provide continued service through the achievement of the clinical development milestone. For the avoidance of doubt, if the clinical development milestone is not achieved during the Earnout Period, but a Participating Optionholder has completed their service requirement, they will not be considered vested in the restricted stock units. There is no immediate financial impact with respect to the Participating Optionholders awards due to the uncertainty of achieving the clinical development milestone. No such service condition exists for the Participating Shareholders awards. The Earnout Shares allocated to the Participating Shareholders are accounted for under IAS 32 – Financial Instruments as a deemed dividend and recorded at fair value as a liability on the balance sheet as they fail the fixed-for-fixed criteria based on the terms and conditions of the Business Combination Agreement. |
| (10) | Reflects adjustments to prepayments and other receivables for the following items: |
| a. | Payment of expected premium for directors’ and officers’ (“D&O”) insurance which must be obtained according to the terms of the Business Combination Agreement. The offsetting entry is seen in Prepaids and other receivables. |
| b. | Reclassification of transaction costs incurred as of the balance sheet date which qualify for capitalization. Qualifying costs were capitalized within prepayments and other receivables and are reclassified into share capital at the closing of the transactions contemplated by the Business Combination Agreement. |
| In EUR thousands | ||||
| Payment of D&O insurance premium |
5,000 | |||
| Reclassification of previously capitalized transaction costs into equity |
(981 | ) | ||
|
|
|
|||
| Total Prepayments and other receivables Adjustment |
4,019 | |||
|
|
|
|||
| (11) | As a result of the closing of the transactions contemplated by the Business Combination Agreement all outstanding FLAC Warrants ceased to represent a right to acquire FLAC Class A Ordinary Shares and became a right to acquire Holdco Shares on the same contractual terms. The entry to record the deemed cancellation of FLAC Warrants and deemed issuance of Holdco Warrants results in a net impact of zero as the warrants were replaced with equal terms. The fair value of the warrants included in the pro forma condensed combined statement of financial position is derived from the fair value of the FLAC Warrants recorded in FLAC’s unaudited condensed balance sheet as at June 30, 2022. At transaction close, NewAmsterdam Pharma recorded the replacement warrants at fair value as of the closing date, with subsequent changes in fair value being recorded in the statement of profit or loss and other comprehensive loss. |
The unaudited pro forma condensed combined financial information does not reflect the income tax effects of the pro forma adjustments based on the statutory rate in effect for the historical periods presented given the combined entity has incurred significant losses since inception and does not expect to generate taxable income for the foreseeable future, including in fiscal year 2022.
PRO FORMA CONDENSED COMBINED STATEMENT OF PROFIT OR LOSS
FOR THE YEAR ENDED DECEMBER 31, 2021
(UNAUDITED)
(in EUR thousands unless otherwise denoted)
| NewAmsterdam Pharma Historical IFRS |
FLAC Historical (1) U.S. GAAP |
IFRS Policy and Presentation Alignment |
Transaction Accounting Adjustments |
Pro Forma Combined |
||||||||||||||||||||||||||||
| USD | EUR(2) | FN | FN | |||||||||||||||||||||||||||||
| Research and development expenses |
(25,032 | ) | — | — | — | — | (25,032 | ) | ||||||||||||||||||||||||
| General and administrative expenses |
(4,803 | ) | (1,366 | ) | (1,155 | ) | — | (67,488 | ) | (4 | ) | (73,446 | ) | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Total operating expenses |
(29,835 | ) | (1,366 | ) | (1,155 | ) | — | (67,488 | ) | (98,478 | ) | |||||||||||||||||||||
| Finance income |
9 | — | — | — | — | 9 | ||||||||||||||||||||||||||
| Finance expense |
(216 | ) | — | — | — | — | (216 | ) | ||||||||||||||||||||||||
| Interest income from investments held in Trust Account |
— | 16 | 14 | — | (14 | ) | (3 | ) | — | |||||||||||||||||||||||
| Change in fair value of derivative warrant liabilities |
— | 4,529 | 3,828 | — | — | 3,828 | ||||||||||||||||||||||||||
| Break-up fee from terminated agreement |
— | 1,000 | 845 | — | — | 845 | ||||||||||||||||||||||||||
| Net foreign exchange gain |
1,443 | — | — | — | — | 1,443 | ||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Loss before tax |
(28,599 | ) | 4,179 | 3,532 | — | (67,502 | ) | (92,569 | ) | |||||||||||||||||||||||
| Income tax expense |
— | — | — | — | — | — | ||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Loss for the period |
(28,599 | ) | 4,179 | 3,532 | — | (67,502 | ) | (92,569 | ) | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Attributable to: |
||||||||||||||||||||||||||||||||
| Equity holders of the Company |
(28,599 | ) | 4,179 | 3,532 | — | (67,502 | ) | (92,569 | ) | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
| Earnings / (loss) per share, basic and diluted: |
||||||||||||||||||||||||||||||||
| Class A ordinary shares |
0.24 | |||||||||||||||||||||||||||||||
| Class B ordinary shares |
0.24 | |||||||||||||||||||||||||||||||
| Ordinary shares |
(2.53 | ) | (1.13 | ) | ||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Pro Forma Adjustments to the Unaudited Condensed Combined Statement of Profit or Loss
The adjustments included in the unaudited condensed combined statement of profit or loss for the year ended December 31, 2021 are as follows:
IFRS Policy and Presentation Alignment
| (1) | Certain presentation differences exist in the line items included within the historical NewAmsterdam Pharma statement of profit or loss when compared to the historical FLAC statement of operations. The following presentation differences exist between the historical FLAC statement of operations and the FLAC historical information included within the pro forma condensed combined statement of profit or loss. |
| • | Administrative expenses – related party have been combined with general and administrative expenses to be presented as one figure; |
| • | Loss from operations is shown as total operating expenses; |
| • | Loss before tax is calculated above, but is not included within the historical FLAC statement of operations. The amount is equal to FLAC’s historical net income as there is no income tax presented within the historical FLAC statement of operations; and |
| • | Net income is shown as loss for the period. |
| (2) | The historical financial information of FLAC was prepared in accordance with U.S. GAAP and presented in USD. The historical financial information was translated from USD to EUR using the average exchange rate over the period from January 1, 2021 through December 31, 2021, of $1.1830 per EUR. |
Transaction Accounting Adjustments
| (3) | Reflects the removal of interest income from investments held in the Trust Account. |
| (4) | Reflects adjustments to general and administrative expenses for the following items: |
| a. | The portion of expected transaction costs incurred after December 31, 2021 in connection with the Business Combination which are expensed. Costs which qualify for capitalization are allocated among all Holdco Shares issued with the portion related to those shares issued to former NewAmsterdam Pharma shareholders being expensed. Under this allocation method 55% of qualifying costs are expensed, as seen in adjustment 5d and 13b, in the unaudited condensed combined statement of financial position included above. This expense is not expected to have a continuing impact on the combined results. |
| b. | Adjustment in accordance with IFRS 2 for the excess of the value of Holdco Shares issued in exchange for the outstanding equity of FLAC over the net identifiable assets acquired. See adjustment 6c to the pro forma condensed combined statement of financial position above for details regarding the calculation of the share-based compensation expense for the listing cost. This expense is not expected to have a continuing impact on the combined results. |
| c. | Expense related expected annual premium for additional D&O insurance which must be obtained according to the terms of the Business Combination Agreement. |
The table below set forth the amounts for each item described and the total general and administrative expense adjustment amount:
| In EUR thousands | ||||
| Portion of transaction costs incurred after December 31, 2021 which is expensed |
(20,471 | ) | ||
| Expense arising under IFRS 2 for the excess of the fair value of shares issued to FLAC stockholders over and above the fair value of FLAC’s identifiable net assets |
(42,017 | ) | ||
| Additional expense for expected D&O insurance costs |
(5,000 | ) | ||
|
|
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| Total General and Administrative Expense Adjustment |
(67,488 | ) | ||
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The unaudited pro forma condensed combined financial information does not reflect the income tax effects of the pro forma adjustments based on the statutory rate in effect for the historical periods presented given the combined entity has incurred significant losses since inception and does not expect to generate taxable income for the foreseeable future, including in fiscal year 2022.
PRO FORMA CONDENSED COMBINED STATEMENT OF PROFIT OR LOSS
FOR THE SIX MONTHS ENDED JUNE 30, 2022
(UNAUDITED)
(in EUR thousands unless otherwise denoted)
| NewAmsterdam Pharma Historical IFRS |
FLAC Historical (1) U.S. GAAP |
IFRS Policy and Presentation Alignment |
Transaction Accounting Adjustments |
Pro Forma Combined |
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| USD | EUR(2) | FN | FN | |||||||||||||||||||||||||||||
| Revenue |
93,500 | — | — | — | — | 93,500 | ||||||||||||||||||||||||||
| Research and development expenses |
(30,588 | ) | — | — | — | — | (30,588 | ) | ||||||||||||||||||||||||
| General and administrative expenses |
(9,294 | ) | (2,335 | ) | (2,137 | ) | — | 1,451 | (4 | ) | (9,980 | ) | ||||||||||||||||||||
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| Total operating expenses |
(39,882 | ) | (2,335 | ) | (2,137 | ) | — | 1,451 | (40,568 | ) | ||||||||||||||||||||||
| Finance income |
10 | — | — | — | — | 10 | ||||||||||||||||||||||||||
| Finance expense |
(185 | ) | — | — | — | — | (185 | ) | ||||||||||||||||||||||||
| Interest income from investments held in Trust Account |
— | 116 | 106 | — | (106 | ) | (3 | ) | — | |||||||||||||||||||||||
| Change in fair value of derivative warrant liabilities |
— | 2,431 | 2,225 | — | — | 2,225 | ||||||||||||||||||||||||||
| Break-up fee from terminated agreement |
— | — | — | — | — | — | ||||||||||||||||||||||||||
| Net foreign exchange gain |
1,070 | — | — | — | — | 1,070 | ||||||||||||||||||||||||||
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| Profit before tax |
54,513 | 212 | 194 | — | 1,345 | 56,052 | ||||||||||||||||||||||||||
| Income tax expense |
— | — | — | — | — | — | ||||||||||||||||||||||||||
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| Profit for the period |
54,513 | 212 | 194 | — | 1,345 | 56,052 | ||||||||||||||||||||||||||
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| Attributable to: |
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| Equity holders of the Company |
54,513 | 212 | 194 | — | 1,345 | 56,052 | ||||||||||||||||||||||||||
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| Earnings / (loss) per share: |
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| Class A ordinary shares – basic and diluted |
0.01 | |||||||||||||||||||||||||||||||
| Class B ordinary shares – basic and diluted |
0.01 | |||||||||||||||||||||||||||||||
| Ordinary shares – Basic |
3.20 | 0.69 | ||||||||||||||||||||||||||||||
| Ordinary shares - Diluted |
2.87 | 0.66 | ||||||||||||||||||||||||||||||
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The adjustments included in the unaudited condensed combined statement of profit or loss for the six months ended June 30, 2022 are as follows:
IFRS Policy and Presentation Alignment
| (1) | Certain presentation differences exist in the line items included within the historical NewAmsterdam Pharma statement of profit or loss when compared to the historical FLAC statement of operations. The following presentation differences exist between the historical FLAC statement of operations and the FLAC historical information included within the pro forma condensed combined statement of profit or loss. |
| • | Administrative expenses – related party have been combined with general and administrative expenses to be presented as one figure; |
| • | Loss from operations is shown as total operating expenses; |
| • | Loss before tax is calculated above, but is not included within the historical FLAC statement of operations. The amount is equal to FLAC’s historical net income as there is no income tax presented within the historical FLAC statement of operations; and |
| • | Net income is shown as loss for the period. |
| (2) | The historical financial information of FLAC was prepared in accordance with U.S. GAAP and presented in USD. The historical financial information was translated from USD to EUR using the average exchange rate over the period from January 1, 2022 through June 30, 2022, of $1.0929 per EUR. |
Transaction Accounting Adjustments
| (3) | Reflects the removal of interest income from investments held in the Trust Account. |
| (4) | Reflects adjustments to general and administrative expenses for the following items: |
| a. | Expense related expected annual premium for additional D&O insurance which must be obtained according to the terms of the Business Combination Agreement. |
| b. | Elimination of transaction costs expensed in the current period which are recognized in the transaction accounting adjustments within the pro forma income statement for the year ended December 31, 2021. |
The table below set forth the amounts for each item described and the total general and administrative expense adjustment amount:
| In EUR thousands | ||||
| Additional expense for expected D&O insurance costs |
(2,500 | ) | ||
| Elimination of transaction costs incurred in the current period |
3,951 | |||
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| Total General and Administrative Expense Adjustment |
1,451 | |||
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The unaudited pro forma condensed combined financial information does not reflect the income tax effects of the pro forma adjustments based on the statutory rate in effect for the historical periods presented given the combined entity has incurred significant losses since inception and does not expect to generate taxable income for the foreseeable future, including in fiscal year 2022.
Net Loss Per Share
Represents the net loss per share calculated using the historical weighted average shares outstanding, and the issuance of additional shares in connection with the Business Combination, assuming the shares were outstanding since January 1, 2021. As the Business Combination and related equity transactions are being reflected as if they had occurred at the beginning of the periods presented, the calculation of weighted average shares outstanding for basic and diluted net income (loss) per share assumes that the shares issued relating to the Business Combination have been outstanding for the entirety of the period presented.
| Year ended December 31, 2021 |
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| Net loss attributable to equity holders of the company (in EUR thousands) |
(92,569 | ) | ||
| Basic and diluted pro forma weighted average number of shares outstanding1 |
81,559,780 | |||
| Net loss per share attributable to equity holders of the company, basic and diluted |
(1.13 | ) | ||
| 1 | Excludes 1,886,137 Earnout Shares, 4,185,358 Holdco Options and 4,600,000 and 167,000 Public Warrants and Private Warrants, respectively. |
| Six months ended June 30, 2022 |
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| Earnings attributable to equity holders of the company (in EUR thousands) |
56,052 | |||
| Basic pro forma weighted average number of shares outstanding |
81,559,780 | |||
| Diluted pro forma weighted average number of shares outstanding1 |
85,226,059 | |||
| Earnings per share attributable to equity holders of the company, basic |
0.69 | |||
| Earnings per share attributable to equity holders of the company, diluted |
0.66 | |||
| 1 | Excludes 1,886,137 Earnout Shares and 4,600,000 and 167,000 Public Warrants and Private Warrants, respectively. |
Exhibit 15.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Shell Company Report on Form 20-F of our report dated March 25, 2022, relating to the financial statements of Frazier Lifesciences Acquisition Corporation, which is incorporated by reference in the Shell Company Report on Form 20-F.
/s/ WithumSmith+Brown, PC
New York, New York
November 28, 2022
Exhibit 15.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Shell Company Report on Form 20-F of our report dated August 3, 2022 relating to the financial statements of NewAmsterdam Pharma Holding B.V. appearing in the Registration Statement No. 333- 266510 on Form F-4. We also consent to the reference to us under the heading “Statement By Experts” in such Shell Company Report on Form 20-F.
/s/ Deloitte Accountants B.V.
Rotterdam, The Netherlands
November 28, 2022
Exhibit 15.4
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Shell Company Report on Form 20-F of our report dated September 13, 2022 relating to the financial statements of NewAmsterdam Pharma Company B.V. appearing in the Registration Statement No. 333- 266510 on Form F-4. We also consent to the reference to us under the heading “Statement By Experts” in such Shell Company Report on Form 20-F.
/s/ Deloitte Accountants B.V.
Rotterdam, The Netherlands
November 28, 2022