Use these links to rapidly review the document
TABLE OF CONTENTS
As filed with the Securities and Exchange Commission on October 21, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NABRIVA THERAPEUTICS AG
(Exact name of registrant as specified in its charter)
Republic of Austria (State or other jurisdiction of incorporation or organization) |
Not applicable (I.R.S. Employer Identification Number) |
Leberstrasse 20
1110 Vienna, Austria
Tel: +43 (0)1 740 930
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices)
C T Corporation System
111 Eighth Avenue
New York, NY 10011
(212) 894-8440
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to: | ||
Brian A. Johnson Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich Street New York, NY 10007 Telephone: (212) 230-8800 Fax: (212) 526-5000 |
Peter Wolf General Counsel Nabriva Therapeutics AG 1000 Continental Drive, Suite 600 King of Prussia, PA 19406 Telephone: (610) 816-6640 Fax: (610) 816-6639 |
Approximate date of commencement of proposed sale to the public:
From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ý
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
CALCULATION OF REGISTRATION FEE
|
||||||||
Title of Each Class of Securities to be Registered(1) |
Amount to be Registered(1) |
Proposed Maximum Offering Price Per Unit(1) |
Maximum Aggregate Offering Price(1) |
Amount of Registration Fee(1) |
||||
---|---|---|---|---|---|---|---|---|
Common shares, nominal value €1.00 per share(2) |
||||||||
Rights to subscribe for common shares (including rights to subscribe for American Depositary Shares)(2) |
||||||||
Total |
$75,000,000 | $75,000,000 | $8,693 | |||||
|
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to completion, dated October 21, 2016
$75,000,000
PROSPECTUS
NABRIVA THERAPEUTICS AG
Common Shares
American Depositary Shares representing Common Shares
Rights to Subscribe for Common Shares
We may issue securities from time to time in one or more offerings of up to $75,000,000 in aggregate offering price. This prospectus describes the general terms of these securities and the general manner in which these securities will be offered. We will provide the specific terms of these securities in supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus and any applicable prospectus supplement carefully before you invest.
We may offer these securities in amounts, at prices and on terms determined at the time of offering. The securities may be sold directly to you, through agents, or through underwriters and dealers. If agents, underwriters or dealers are used to sell the securities, we will name them and describe their compensation in a prospectus supplement.
Our ADSs are listed on The NASDAQ Global Market under the symbol "NBRV."
Investing in these securities involves significant risks. See "Risk Factors" included in any accompanying prospectus supplement and in the documents incorporated by reference in this prospectus for a discussion of the factors you should carefully consider before deciding to purchase these securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2016.
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, which we refer to as the SEC, utilizing a "shelf" registration process. Under this shelf registration process, we may from time to time sell any combination of the securities described in this prospectus in one or more offerings for an aggregate initial offering price of up to $75,000,000.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide one or more prospectus supplements that will contain specific information about the terms of the offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and the accompanying prospectus supplement together with the additional information described under the heading "Where You Can Find More Information" beginning on page 3 of this prospectus.
We have not authorized anyone to provide you with information different from that contained in or incorporated by reference in this prospectus, any accompanying prospectus supplement or in any related free writing prospectus filed by us with the SEC. We do not take any responsibility for, and cannot provide any assurance as to the reliability of, any information other than the information in this prospectus, any accompanying prospectus supplement or in any related free writing prospectus filed by us with the SEC. This prospectus and the accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in the accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should assume that the information appearing in this prospectus, any prospectus supplement, the documents incorporated by reference and any related free writing prospectus is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed materially since those dates.
Unless the context specifically indicates otherwise, references in this prospectus to "Nabriva Therapeutics AG," "Nabriva," "we," "our," "ours," "us," "our company," "our group" or similar terms refer to Nabriva Therapeutics AG and its consolidated subsidiary, Nabriva Therapeutics US, Inc., a Delaware corporation.
1
Investing in our securities involves significant risks. You should carefully consider the risks and uncertainties described in this prospectus and any accompanying prospectus supplement, including the risk factors set forth in our filings with the SEC that are incorporated by reference herein, including the risk factors in our Annual Report on Form 20-F for the fiscal year ended December 31, 2015, before making an investment decision pursuant to this prospectus and any accompanying prospectus supplement relating to a specific offering.
Our business, financial condition and results of operations could be materially and adversely affected by any or all of these risks or by additional risks and uncertainties not presently known to us or that we currently deem immaterial that may adversely affect us in the future.
2
WHERE YOU CAN FIND MORE INFORMATION
As of the date of this prospectus, we are subject to the periodic reporting and other informational requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act, applicable to foreign private issuers. Accordingly, we are required to file reports, including annual reports on Form 20-F, and other information with the SEC. As a foreign private issuer, we are exempt from the rules of the Exchange Act prescribing the furnishing and content of proxy statements to shareholders under the federal proxy rules contained in Sections 14(a), (b) and (c) of the Exchange Act, and our "insiders" are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. However, we have determined that, as of June 30, 2016, we no longer qualified as a "foreign private issuer" under the rules and regulations of the SEC. As a result, beginning January 1, 2017, we anticipate that our future annual filings with the SEC will be made on Form 10-K rather than on Form 20-F. In addition, commencing on January 1, 2017, we plan to expand our reporting consistent with that of a domestic U.S. filer, including filing quarterly reports on Form 10-Q, current reports on Form 8-K and proxy statements under Section 14 of the Exchange Act. We will also prepare our financial statements in accordance with generally accepted accounting principles in the United States rather than the International Financial Reporting Standards. In addition, after January 1, 2017, our "insiders" will also be subject to the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act.
Our SEC filings are available to the public over the Internet at the SEC's website at http://www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at http://www.nabriva.com. Our website is not a part of this prospectus and is not incorporated by reference in this prospectus. You may also read and copy any document we file at the SEC's Public Reference Room, 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference Room.
This prospectus is part of a registration statement we filed with the SEC. This prospectus omits some information contained in the registration statement in accordance with SEC rules and regulations. You should review the information and exhibits in the registration statement for further information on us and our consolidated subsidiary and the securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document to evaluate these statements. You can obtain a copy of the registration statement from the SEC at the address listed above or from the SEC's website.
The SEC allows us to incorporate by reference in this prospectus much of the information we file with the SEC, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below (File No 001-37558) and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act (other than those documents or the portions of those documents not deemed to be filed) and, to the extent designated therein, reports on Form 6-K that we furnish to the SEC, in each case, between the date of the initial registration statement and the
3
effectiveness of the registration statement and following the effectiveness of the registration statement until the offering of the securities under the registration statement is terminated or completed:
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address or phone number:
Nabriva
Therapeutics AG
1000 Continental Drive, Suite 600
King of Prussia, PA 19406
(610) 816-6640
4
This prospectus and the information incorporated by reference in this prospectus include "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act. All statements contained or incorporated by reference herein, including statements regarding our strategy, future operations, future financial position, future revenue, projected costs, prospects, plans, objectives of management and expected market growth, other than statements of historical facts, are forward-looking statements. The words "anticipate," "believe," "estimate," "expect," "intend," "may," "plan," "predict," "project," "potential," "will," "would," "could," "should," "continue," and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words.
We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking statements we make. You are cautioned that these forward-looking statements are only predictions and are subject to risks, uncertainties and assumptions that are referenced in the section of any accompanying prospectus supplement entitled "Risk Factors." You should also carefully review the risk factors and cautionary statements described in the other documents we file from time to time with the SEC, specifically our most recent Annual Report on Form 20-F and our Reports on Form 6-K. We undertake no obligation to revise or update any forward-looking statements, except to the extent required by law.
5
We are a clinical stage biopharmaceutical company engaged in the research and development of novel anti-infective agents to treat serious infections, with a focus on the pleuromutilin class of antibiotics. We are developing our lead product candidate, lefamulin, to be the first pleuromutilin antibiotic available for systemic administration in humans.
Our principal executive offices are located at Leberstrasse 20, 1110 Vienna, Austria, and our telephone number is +43 (0)1 740 930.
6
We intend to use the net proceeds from the sale of any securities offered under this prospectus for general corporate purposes unless otherwise indicated in the applicable prospectus supplement. General corporate purposes may include research and development costs, the acquisition or licensing of other products, businesses or technologies, working capital and capital expenditures. We may temporarily invest the net proceeds from the sale of any securities offered under this prospectus in a variety of capital preservation instruments, including term deposits and short-term, investment-grade, interest-bearing instruments and U.S. and certain European government securities, until they are used for their stated purpose. We have not determined the amount of net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation of net proceeds.
7
The following describes our issued share capital, summarizes the material provisions of our articles of association and highlights certain differences in corporate law in Austria and the United States. The description of our articles of association is based upon, and is qualified by reference to, our articles of association. This summary is not complete. You should read our articles of association, which are filed as an exhibit to the registration statement of which this prospectus forms a part, for the provisions that are important to you.
General
We were incorporated in October 2005 in Austria under the name Nabriva Therapeutics Forschungs GmbH, a limited liability company organized under Austrian law, as a spin-off from Sandoz GmbH and commenced operations in February 2006. In 2007, we subsequently transformed into a stock corporation under the name Nabriva Therapeutics AG. We are incorporated under the laws of the Republic of Austria and registered at the Commercial Register of the Commercial Court of Vienna. Our executive offices are located at Leberstrasse 20, 1110 Vienna, Austria.
Issued Share Capital
Under our articles of association, our share capital consists solely of common shares. As of October 1, 2016, there were 2,128,006 common shares outstanding, nominal value €1.00 per share.
Authorized and Conditional Capital
On August 25, 2016, our shareholders authorized (1) our management board, subject to the approval of the supervisory board, to increase our share capital by issuing up to 918,033 new common shares against contribution in cash or in-kind with or without subscription rights, within five years following the registration of such authorized increase (authorized capital 2016), (2) our management board to increase our registered share capital within a period of five years, with the approval of the supervisory board, by issuing up to 146,129 common shares against contribution in cash or in-kind in full or in part by exclusion of subscription rights for the purposes of fulfilling the subscription rights under our Stock Option Plan 2015 (authorized capital 2016SOP); (3) to effect a conditional capital increase of up to a nominal value of €197,770 for stock options granted under our Stock Option Plan 2015 (conditional capital 2016SOP); and (4) to effect a conditional capital increase of up to a nominal value of €704,162 to grant conversion or subscription rights to holders of convertible bonds, participation rights or profit participating bonds (conditional capital 2016convertible bonds). The authorizations described above became effective upon their registration with the commercial register.
The issuance of common shares based on the authorizations described above will only become effective upon payment of the issue price of such common shares and, in the case of common shares issued out of authorized capital, registration with the commercial register. The authorized common shares issued out of conditional capital may become effective after payment of the issue price but without registration with the commercial register.
As of October 1, 2016, there were 359,280 common shares reserved for future issuance under our Stock Option Plan 2007 and our Stock Option Plan 2015, including the common shares described above that were authorized for issuance by our shareholders in August 2016.
Common Shares
Our shareholders are entitled to one vote per share at each general meeting of shareholders. Our shareholders are entitled to receive dividends, if any, in proportion to their respective ownership out of our distributable profits if such a resolution is passed by the general meeting of shareholders. See
8
"General Regulations on Earnings Appropriation and Dividend Payments." Our articles of association provide that any dividends that remain unclaimed after three years from the date of the general meeting of shareholders at which they were approved will revert to our unrestricted capital reserves.
In the event the company is liquidated, dissolved or wound up, our shareholders will be entitled to share pro rata in all assets remaining after payment of liabilities. Our shares have no preemptive, subscription or conversion rights, and there are no redemption provisions applicable to our shares, except for the mandatory subscription rights provided for under the Austrian Stock Corporation Act. The rights, preferences and privileges of holders of our shares will be subject to, and may be adversely affected by, the rights of holders of shares of any series of preferred shares that we may designate and issue in the future.
Legal title to the shares represented by one or more global share certificates is transferred by agreement (Titel), endorsement of the share certificates (Indossament) and physical handover of the share certificates (tatsächliche Übergabe) in accordance with Austrian law. Neither Austrian law nor our articles of association restrict the transferability of our shares. Each shareholder is entitled to receive physical share certificates evidencing its individual ownership of its shares in the company.
Options
As of October 1, 2016, options to purchase an aggregate of 197,604 common shares, at a weighted average exercise price of €66.00 per share, were outstanding.
Articles of Association
Our articles of association, which were most recently amended on August 25, 2016, contain provisions relating to shareholders' meetings, management and financial accounting that are customary for Austrian stock corporations and do not deviate from the rules provided for by statutory law.
Pursuant to the articles of association our business objective is:
We are further entitled to engage in all business activities and to carry out all measures that are deemed necessary or useful for the company's business objective.
Pursuant to the articles of association (and as provided for by statutory Austrian law), the following matters must be approved by the general meeting of shareholders: (i) the distribution of profits, (ii) the release from liability of the members of the management and supervisory boards, (iii) the election of members of the supervisory board, (iv) the appointment of auditors, (v) the amendment of the company's articles of association, and (vi) the increase of the company's share capital (and the corresponding exclusion of subscription rights, if applicable). The shareholders may adopt the respective resolutions at a general meeting by a simple majority of the votes cast, unless a higher majority is mandatorily required by law.
General meetings take place at either (i) our registered offices in Vienna, (ii) at the seat of any domestic branch establishment or domestic subsidiary, or (iii) at an Austrian provincial capital. We must give at least 28 days' (with respect to the convocation of the annual general meeting) and at least 21 days' (with respect to any extraordinary general meeting) prior notice to our shareholders for a
9
general meeting. Our annual general meeting must take place within the first eight months of our financial year and typically includes the following resolutions:
Pursuant to the articles of association, the supervisory board consists of a minimum of three and a maximum of ten members to be elected by the general meeting for a maximum period of five years. The members of the supervisory board must elect a chairman and one deputy chairman from among its members. The supervisory board must appoint at least one and a maximum of five members of the management board for a maximum term of five years. If the management board consists of more than a single member, the supervisory board has competence to decide whether each member of the management board is permitted to act singly on behalf of the company or jointly with other members of the management board.
Other Austrian Law Considerations
Austrian Stock Corporation Act
The following summary provides information on certain relevant provisions of the Austrian Stock Corporation Act. The summary of relevant provisions under Austrian law set forth hereunder is for general information only. It does not purport to be a comprehensive and complete description of all the topics discussed below.
General Regulations on Earnings Appropriation and Dividend Payments
During the first five months of each financial year, the management board must prepare annual financial statements for the previous financial year, including the notes thereto and the management report. After the financial statements have been audited, the management board must present them, along with a proposal for the distribution of any net profit, to the supervisory board. The supervisory board must provide the management board with a statement on the annual financial statements within two months of their presentation. The supervisory board must also file a report to the general meeting. Pursuant to the Austrian Commercial Code and the Austrian Stock Corporation Act, we may only pay dividends out of distributable profits. Distributable profits are based on accumulated profits, as shown in our unconsolidated financial statements in accordance with the Austrian Commercial Code, after allocations have been made to reserves, including retained earnings. On the basis of the management board's proposal and the supervisory board's report, the general meeting resolves whether dividends will be paid for any financial year and the amount and timing of any such dividend payment. The general meeting, in its resolution, is bound to the annual financial statements as prepared by the management board and approved by the supervisory board. In case the supervisory board does not approve the annual financial statements as prepared by the management board or if the management board and the supervisory board so decide, the general meeting is competent for approving the annual financial statements. It is, however, not bound to the management board's proposal for the distribution of the net profit. Pursuant to the articles of association, the general meeting may also resolve not to distribute all or parts of the net profit among the shareholders. Dividends that have not been collected by the shareholder within three years after becoming due are deemed forfeited and accrue to our free reserve.
10
Liquidation Rights
In the case of our liquidation, any assets remaining after discharge of liabilities and repayment of supplementary capital will be distributed to the shareholders on a pro rata basis. Pursuant to statutory law, a vote of at least 75% of the share capital present or represented at the general meeting is required to pass a resolution regarding the liquidation of the company.
General Provisions Concerning Changes in Share Capital
Pursuant to the provisions of the Austrian Stock Corporation Act, an increase of our share capital is permitted in particular by way of a resolution of the general meeting:
Resolutions of the general meeting regarding an ordinary increase of our share capital or regarding authorized or conditional capital or authorized conditional capital as well as the exclusion of subscription rights of existing shareholders require a vote of at least 75% of the share capital represented in the respective general meeting.
Except in the case of certain capital reductions effected by a repurchase of shares by the company, a resolution to decrease the share capital requires a majority of at least 75% of the share capital represented in the respective general meeting (Section 175 paragraph 1 of the Austrian Stock Corporation Act).
Following any of the resolutions described above, a judge in Austria must approve the creation of the new common shares, including the new common shares that will underlie any ADSs offered by us. A delay in approval by the judge could result in a delay in the settlement of such an offering.
11
General Provisions Concerning Subscription Rights
Pursuant to Section 153 paragraph 1 of the Austrian Stock Corporation Act, our existing shareholders are entitled to subscribe for and to be allocated such number of new shares to allow them to maintain their existing participation in our share capital. The subscription rights (Bezugsrechte) of existing shareholders are therefore proportionate to the number of shares held by them prior to the offering of new shares. Similarly, Section 174 paragraph 4 of the Austrian Stock Corporation Act provides for subscription rights of our existing shareholders in relation to securities convertible into shares, securities with warrants to purchase shares, securities with profit participation or participation certificates to allow them to maintain their existing participation in our share capital. Shareholders may waive or choose not to exercise their subscription rights. Furthermore, subscription rights may fully or partially be excluded by resolution of the general meeting (Section 153 paragraph 3 of the Austrian Stock Corporation Act). If subscription rights are to be excluded, a majority of at least 75% of the share capital present or represented at the general meeting must approve the respective resolution. In addition, the proposal to exclude subscription rights must be announced prior to the respective general meeting and must be based on a written report by the management board justifying such exclusion. A shareholders' resolution in respect of authorized capital may either directly exclude subscription rights or authorize the management board to exclude subscription rights with a majority of 75% of the share capital present or represented at the respective general meeting. If the management board is authorized to exclude subscription rights, the management board's resolution to exclude subscription rights requires approval by the supervisory board, as well as an additional reasoned statement justifying the exclusion. If shares are issued out of conditional capital, existing shareholders are not entitled to subscription rights.
Existing shareholders are entitled to exercise their rights within a specified subscription period (Bezugsfrist), which must last for at least two weeks. When issuing new shares, the management board must publish a notice in the official gazette (Amtsblatt zur Wiener Zeitung) specifying the beginning and the duration of the subscription period, as well as the subscription price. Shareholders may transfer their subscription rights during the subscription period. If subscription rights are not exercised during the subscription period, they will be deemed forfeited. Subscription rights are not considered excluded if new shares are initially subscribed for by a credit institution which undertakes to offer the new shares to existing shareholders in proportion to their subscription rights (intermediate subscription right, mittelbares Bezugsrecht).
Authorization to Purchase and Sell Treasury Shares
Pursuant to the Austrian Stock Corporation Act, a stock corporation may generally only purchase and sell its treasury shares in the following limited circumstances:
12
Shareholder Rights
Voting Rights and Majority Requirements
Each share entitles its holder to one vote at the shareholders' meeting. There is no minimum attendance quorum at the shareholders' meeting under Austrian corporation law. Resolutions of the shareholders' meeting are passed by a simple majority of the votes cast or, in matters which require a majority of the share capital, by a simple majority of the share capital present, unless the stock corporation law requires a higher majority.
Under the Austrian stock corporation law, the following measures require the affirmative vote of at least 75% of the share capital present or represented at a shareholders' meeting:
Under Austrian law, approval by shareholders holding at least 90% of the share capital is required for an upstream merger, with certain exceptions, for a spin-off disproportionate to shareholdings or for a squeeze-out of minority shareholders.
A shareholder or a group of shareholders holding at least one-third of the share capital present or represented at the shareholders' meeting can elect a person to the supervisory board provided that the same shareholders' meeting has to elect at least three members of the supervisory board.
A shareholder or a group of shareholders holding at least 20% of the share capital may object to settlements or waivers of liability claims of the company against its founders or members of the management board or the supervisory board.
13
A shareholder or a group of shareholders holding at least 10% of the share capital may in particular:
A shareholder or a group of shareholders holding at least 5% of the share capital may in particular:
A shareholder or a group of shareholders holding at least 1% of the share capital in a listed company may communicate to the company propositions for resolutions with respect to each topic on the agenda of the shareholders' meeting and request for these propositions to be made public on the internet site of the company. Under our articles of association, such proposals must be made in the German language.
Change or Impairment of Shareholders' Rights
The Austrian Stock Corporation Act contains provisions that protect the rights of individual shareholders. As a general rule, shareholders must be treated equally under equal circumstances, unless the concerned shareholders agree otherwise. Furthermore, measures affecting shareholders' rights, such as capital increases and the exclusion of subscription rights, generally require a shareholders' resolution.
The articles of association do not provide for more stringent conditions for the exercise of shareholders' rights than those provided by the Austrian Stock Corporation Act. In addition, the articles of association do not allow changes to, or restriction on shareholders' rights under less stringent conditions than those provided by the Austrian Stock Corporation Act.
Neither Austrian law nor the articles of association restrict the right of non-resident or foreign holders of the shares to hold or vote their shares.
14
Shareholders' Meeting
The shareholders' meeting is convened by the management board or the supervisory board. The shareholders' meeting may take place at the corporate seat of the company in Vienna, Austria, at the seat of any branch office or subsidiary in Austria or in a capital of an Austrian province.
A company must publish an invitation notice of the shareholders' meeting; the minimum period between the publication of the invitation notice and the day of the general shareholders' meeting must be 28 days, or 21 days in case of an extraordinary shareholders' meeting. Shareholders may appoint proxies to represent them at shareholders' meetings.
The general shareholders' meeting must take place within the first eight months of each financial year.
Redemption or Conversion of Shares
A redemption of shares is possible in the course of a decrease of the stated share capital resolved by the shareholders' meeting, or by the company's purchase of its own shares. A capital decrease requires a shareholders' resolution with a majority of at least 75% of the share capital present or represented at the shareholders' meeting.
Pursuant to the Austrian Stock Corporation Act, a company may acquire its own shares only under specific circumstances. See "Authorization to Purchase and Sell Treasury Shares." The shares may be converted into a different class of shares, such as non-voting preferred shares, but only with the consent of the respective holder or, in case of a conversion negatively affecting other shareholders whose shares are not converted, the consent of such shareholders.
Neither our articles of association nor the Austrian Stock Corporation Act contain an obligation of the shareholders to make further commitments, such as equity contributions, to the company.
Austrian Insolvency Act
The following summary provides information on certain relevant provisions of the Austrian Insolvency Act (Insolvenzordnung), or the AIA. The summary of relevant provisions under Austrian law set forth hereunder is for general information only. It does not purport to be a comprehensive and complete description of all the topics discussed below.
As we are incorporated under the laws of Austria, a rebuttable presumption exists that we also have our "center of main interests" in Austria. In the event of an insolvency of a company having its "center of main interests" in Austria, insolvency proceedings may be initiated in Austria. Such proceedings will be governed by Austrian law. Under certain circumstances, insolvency proceedings may also be opened in Austria in accordance with Austrian law with respect to the assets of companies that are not organized under Austrian law.
The following is a brief description of certain aspects of Austrian insolvency law. The law relating to insolvency is regulated by the AIA which entered into force on July 1, 2010.
Insolvency proceedings (Insolvenzverfahren) are opened by a court in the event that the debtor is insolvent (zahlungsunfähig) (i.e., unable to pay its debts as and when they fall due) or over-indebted within the meaning of the AIA (überschuldet) (i.e., its liabilities exceed the liquidation value of its assets in combination with a negative prognosis on its ability to continue as a going concern (negative Fortbestehensprognose)). Under Austrian law, insolvency proceedings may be initiated either by the debtor or a creditor by filing an application to that effect with a court of competent jurisdiction. If insolvency proceedings are initiated upon a creditor's request, such creditor will have to show that the debtor is insolvent or over-indebted. In the event that the debtor is at imminent risk of being unable to
15
pay its debts as and when they fall due (drohende Zahlungsunfähigkeit), insolvency proceedings may be initiated only upon the debtor's request.
If the debtor has submitted, together with its application requesting the opening of insolvency proceedings, an application for the commencement of restructuring proceedings (Sanierungsverfahren), the court may order the opening of either insolvency proceedings or restructuring proceedings. The legal provisions regulating restructuring proceedings do not apply to insolvency proceedings.
Depending on whether the debtor submits a restructuring plan (Sanierungsplan) together with the application for the opening of insolvency proceedings, the initiated proceedings may be in the form of restructuring proceedings (Sanierungsverfahren) or insolvency proceedings. If it is the debtor that has applied for the initiation of insolvency proceedings and has submitted to the court a restructuring plan (Sanierungsplan) that offers a recovery rate of at least 20% payable to the unsecured creditors over a maximum period of two years, any proceedings so initiated by the court will be in the form of restructuring proceedings. A debtor may also submit a restructuring plan in the course of insolvency proceedings that are already in progress whereupon such proceedings will continue as restructuring proceedings. For the debtor's restructuring plan to be approved by the court it should meet certain criteria specified by law.
The purpose of a restructuring plan is to enable a debtor to be released from a portion of its debts (not to exceed 80% of the aggregate amount thereof) and to continue its business operations. A restructuring plan has to be approved by a "qualified majority" of the debtor's unsecured creditors. A "qualified majority" refers to a majority of the debtor's unsecured creditors present at the respective court hearing, provided that such majority represents more than 50% of the aggregate amount of all claims of the unsecured creditors being present at such hearing. Once the debtor has complied with the terms of a restructuring plan that was duly approved by the creditors and confirmed by the court, it will be released from its remaining outstanding unsecured debts. Unsecured creditors whose claims under the restructuring plan have not been satisfied in accordance with the plan's terms may enforce their individual claims against the debtor, in which case the restructuring proceedings will be continued as insolvency proceedings.
If the restructuring proceedings have been initiated and the debtor has submitted a restructuring plan that offers a recovery rate of at least 30% to the unsecured creditors over a maximum two-year period after the approval of such restructuring plan, the debtor qualifies for self-administration (Sanierungsverfahren mit Eigenverwaltung).
Unless the debtor qualifies for self-administration, it is not allowed as of the date of the opening of the insolvency or the restructuring proceedings, as the case may be, to dispose of the assets belonging to the insolvency estate (Insolvenzmasse). The opening of insolvency proceedings takes effect on the day following the publication of the court's order opening such proceedings in the official online database of Austrian insolvencies. After the opening of insolvency proceedings, transactions of the debtor with respect to assets belonging to the insolvency estate have no effect against the creditors of the insolvency estate.
With its decision to open the insolvency proceedings, the court will appoint an insolvency administrator (Insolvenzverwalter) and may, depending on the nature and the size of the debtor's business (either ex officio or upon the request of the creditors' meeting (Gläubigerversammlung)), appoint a creditors' committee (Gläubigerausschuss) charged with monitoring and assisting the insolvency administrator in the discharge of its duties. After the opening of insolvency proceedings (and unless the debtor qualifies for self-administration) only the insolvency administrator is entitled to act on behalf of the insolvency estate.
16
Under Austrian law, an insolvency administrator's role is to continue the debtor's business with a view to enabling a potential reorganization of the debtor's business either by implementing the debtor's restructuring plan or by a sale of the debtor's business. If neither a restructuring plan nor a sale of the debtor's business is possible, the insolvency administrator will discontinue the debtor's business operations. As a result of the ensuing insolvency proceedings, the debtor's assets will be liquidated and the proceeds realized thereby will be distributed to the debtor's creditors, with the debtor remaining liable for any portion of its debts not satisfied by such proceeds.
If the debtor qualifies for self-administration, the court will proceed with the appointment of a restructuring administrator (Sanierungsverwalter) to monitor the activities of the debtor. In such case, certain transactions are either subject to the restructuring administrator's approval or may be performed only by the restructuring administrator.
Unsecured creditors (Insolvenzgläubiger) wishing to assert their claims against the debtor need to participate in the insolvency proceedings and must file their claim with the competent court within the time period set out in the court order opening the insolvency proceedings. At the respective hearing (examination hearing (Prüfungstagsatzung)), the insolvency administrator has to declare whether it acknowledges or contests each of the claims filed with the court. If the insolvency administrator acknowledges a creditor's claim, such creditor will be entitled to participate in the insolvency proceedings and the pro rata distribution to unsecured creditors that will follow. If a creditor's claim is contested by the insolvency administrator, the creditor will have to seek enforcement of its claim in civil proceedings and only then participate in the insolvency proceedings.
Claims of unsecured creditors which were created before the opening of the insolvency proceedings rank pari passu with each other. Certain claims which lawfully arose against the insolvency estate after the opening of the insolvency proceedings (privileged claims (Masseforderungen)) enjoy priority in insolvency proceedings. Claims which are secured by collateral, such as a mortgage, a pledge over bank accounts or shares, an assignment of receivables for security purposes or a security transfer of moveable assets (preferential claims (Absonderungsrechte)), are entitled to preferential payment in the distribution of the proceeds resulting from the realization of the charged asset. Creditors who have a right to preferential treatment may participate in the pro rata distribution to the unsecured creditors only to the extent that the proceeds from the realization of the assets charged to them did not cover their claims or if they have waived their right to preferential treatment. Secured creditors do not have a voting right with respect to the approval of the restructuring plan to the extent their claim is covered by security. Claims relating to the payment of taxes, social security contributions and employee compensation are not, as such, privileged or preferential claims under Austrian law.
The costs of the insolvency proceedings and certain liabilities accrued during such proceedings constitute privileged claims (Masseforderungen) and rank senior to all other unsecured claims (Insolvenzforderungen). Claims of creditors with a right of segregation of assets (Aussonderungsberechtigte), such as creditors with a retention of title or trustors, remain unaffected by the opening of insolvency proceedings.
Once insolvency proceedings have been opened, it is no longer possible to obtain an execution lien with respect to assets belonging to the insolvency estate. All execution proceedings against the debtor are subject to an automatic stay (Vollstreckungssperre). Execution liens obtained within the last 60 days prior to the opening of insolvency proceedings expire upon the opening of such insolvency proceedings unless the insolvency proceedings are terminated due to lack of funds to cover the cost of such proceedings.
Under the voidance rules of the AIA, an insolvency administrator may, by action of voidance or by defense of voidance, under certain circumstances as set forth in the AIA, challenge any transaction, which includes, without limitation, the granting of security and the guaranteeing, assuming and/or paying of debt.
17
Exchange Controls
There are currently no legal restrictions in Austria on international capital movements and foreign-exchange transactions, except in limited embargo circumstances (Teilembargo) relating to certain areas, entities or persons as a result of applicable resolutions adopted by the United Nations and the European Union. Restrictions currently exist with respect to, among others, Afghanistan, Belarus, Burma/Myanmar, Central African Republic, Congo, Egypt, Eritrea, Guinea, Guinea-Bissau, Iran, Iraq, Ivory Coast, Lebanon, Liberia, Libya, North Korea, Somalia, South Sudan, Sudan, Syria, Tunisia, Ukraine and Zimbabwe.
For statistical purposes, there are, however, limited notification requirements regarding transactions involving cross-border monetary transfers. With some exceptions, every corporation or individual residing in Austria must report to the Austrian National Bank (Österreichische Nationalbank) any active or passive cross-border direct investment transaction exceeding €500,000 (or the equivalent in a foreign currency), provided that special rules apply for securities held in custody by or through Austrian custodians.
Differences in Corporate Law
The applicable provisions of the Austrian Stock Corporation Act differ from laws applicable to U.S. corporations and their shareholders. Set forth below is a summary of certain differences between the provisions of the Austrian Stock Corporation Act applicable to us and the Delaware General Corporation Law relating to shareholders' rights and protections. This summary is not intended to be a complete discussion of the respective rights and it is qualified in its entirety by reference to Delaware law and Austrian law.
|
Austria | Delaware | ||
---|---|---|---|---|
Board System |
Under Austrian law, a stock corporation has a two-tiered board structure composed of the management board (Vorstand) and the supervisory board (Aufsichtsrat). The management board is responsible for running the company's affairs and representing the company in dealings with third parties. The members of the management board are appointed by the company's supervisory board for a definite term, and their appointment can only be revoked under certain circumstances. The supervisory board is elected by the company's shareholders and has a strategic and monitoring role. The supervisory board does not actively manage the company but grants prior approval before the management board takes certain actions |
Under Delaware law, a corporation has a unitary board structure and it is the responsibility of the board of directors to appoint and oversee the management of the corporation on behalf of and in the best interests of the shareholders of the corporation. |
18
|
Austria | Delaware | ||
---|---|---|---|---|
Number of Directors |
Under Austrian law, a stock corporation must have at least one member on its management board and the number of member shall be fixed by or in the manner provided in the company's articles of association. A stock corporation must have at least three but no more than 20 supervisory board members, who are elected or delegated by the company's shareholders. The articles of association of the company must specify if the supervisory board will have more than three members. If the company has a works council, a body which represents the company's employees, then the company's works council is entitled to nominate one member to the supervisory board for every two supervisory board members elected or delegated by the company's shareholders. Consequently, supervisory boards are often split such that two-thirds of supervisory board members are representatives of the shareholders, while one-third are representatives of the works council. |
Under Delaware law, a corporation must have at least one director and the number of directors shall be fixed by or in the manner provided in the bylaws. |
||
Removal of Directors |
The management board of an Austrian stock corporation is appointed by the supervisory board for a maximum period of five years with an opportunity to be re-elected. The supervisory board may remove a member of the management board prior to the expiration of his or her term only for a significant cause, such as gross negligence (grobe Fahrlässigkeit) in carrying out their duties, the inability to manage the business properly or a vote of no-confidence during the shareholders' meeting (Vertrauensentzug). The shareholders themselves are not entitled to appoint or dismiss the members of the management board. Supervisory board members may be removed by a resolution of three-quarters of the shareholders unless otherwise provided by the company's articles of association. The company's first supervisory board, however, may be removed by a simple majority of votes cast. Supervisory board members who are delegated by a shareholder or the works council by a special right of such shareholder or works council may be revoked and the resulting vacancy filled only at the sole discretion of such shareholder or works council. |
Under Delaware law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except (a) unless the certificate of incorporation provides otherwise, in the case of a corporation whose board of directors is classified, shareholders may effect such removal only for cause, or (b) in the case of a corporation having cumulative voting, if less than the entire board of directors is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there are classes of directors, at an election of the class of directors of which he is a part. |
19
|
Austria | Delaware | ||
---|---|---|---|---|
Vacancies on the Board of Directors |
Under Austrian law, vacant positions on the management board are filled by the supervisory board in accordance with the general rules of appointment, which provide that vacancies are filled by (i) the simple majority of supervisory board votes cast and (ii) in any case also the majority of votes of members who represent the shareholders (in order to protect shareholders against excessive influence of employee representatives on the supervisory board). In case of emergencies, a vacant position on the management board may be temporarily filled by a supervisory board member or by an individual appointed by the court. If the number of supervisory board members representing the shareholders falls below three, the statutory minimum required, the company's management board is required to convene an extraordinary general meeting, during which the vacant positions of the supervisory board will be filled. If the vacancy persists for longer than three months, the court shall appoint the necessary number of supervisory board members. Supervisory board members, who are delegated by a shareholder (special right of such stockholder) may be revoked and the resulting vacancy filled again at the sole discretion of such shareholder. The same appliesmutatis mutandisto supervisory board members, who are delegated by the works council. |
Under Delaware law, vacancies and newly created directorships may be filled by a majority of the directors then in office (even though less than a quorum) or by a sole remaining director unless (a) otherwise provided in the certificate of incorporation or by-laws of the corporation or (b) the certificate of incorporation directs that a particular class of stock is to elect such director, in which case a majority of the other directors elected by such class, or a sole remaining director elected by such class, will fill such vacancy. |
||
Annual General Meeting |
Under Austrian law, a stock corporation must hold an annual general meeting within eight months of the end of its fiscal year. The annual general meeting must be held in Austria at a location determined by the articles of association. If the articles of association do not provide for a specific location, the general meeting shall be held at the company's seat or, if applicable, at the venue where its shares are listed. |
Under Delaware law, the annual meeting of stockholders shall be held at such place, on such date and at such time as may be designated from time to time by the board of directors or as provided in the certificate of incorporation or by the bylaws. |
||
General Meeting |
Under Austrian law, extraordinary general meetings, in addition to the annual general meeting, may be convened by either the management board or the supervisory board if it is in the best interest of the company. Shareholders holding at least 5% of the company's share capital are entitled to request that the management board convene an extraordinary general meeting, and may also address their request to the court, which then may authorize the requesting minority shareholders to convene a special meeting by themselves. |
Under Delaware law, special meetings of the stockholders may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws. |
20
|
Austria | Delaware | ||
---|---|---|---|---|
Notice of General Meetings |
Under Austrian law, unless a longer period is otherwise provided for in the articles of association, the shareholders must be given advance notice of at least 28 days, with respect to the annual general meeting, and 21 days with respect to extraordinary general meetings. Such notices must specify the location, date, hour, and purpose or purposes of the meeting, including the respective items on the agenda. The management board and the supervisory board are furthermore required to prepare proposals for each item on the agenda. Such proposals must be provided to the shareholders at least 21 days before the general meeting. The shareholders of a non-listed company may in all cases consent to a shorter notice period or waive all formality requirements with respect to the convention of a general meeting, if all shareholders entitled to attend so consent. |
Under Delaware law, unless otherwise provided in the certificate of incorporation or bylaws, written notice of any meeting of the stockholders must be given to each stockholder entitled to vote at the meeting not less than ten nor more than 60 days before the date of the meeting and shall specify the place, date, hour, and purpose or purposes of the meeting. |
||
Proxy |
Under Austrian law, a shareholder may designate another person to attend, speak and vote at a general meeting of the company on their behalf by proxy. A management board member may issue a proxy to another management board member representing the member's voting rights as a management board member. Except for the chairman of the supervisory board, who may not issue a proxy, a supervisory board member may only issue a proxy to another supervisory board member representing the member's voting rights as a supervisory board member only if so allowed by the company's articles of association. |
Under Delaware law, at any meeting of stockholders, a stockholder may designate another person to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A director of a Delaware corporation may not issue a proxy representing the director's voting rights as a director. |
||
Pre-emptive Rights |
Under Austrian law, existing shareholders have a statutory pre-emptive subscription right for any additional issue of shares or any security convertible into shares pro rata to the nominal value of their respective holdings in the company, unless (i) shareholders representing three-quarters of the registered share capital present at the general meeting have resolved upon the whole or partial exclusion of the pre-emptive subscription right and (ii) there exists good and objective cause for such exclusion. No separate resolution on the exclusion of subscription rights is required if all shareholders waive their statutory pre-emptive subscription right. |
Under Delaware law, stockholders have no pre-emptive rights to subscribe to additional issues of stock or to any security convertible into such stock unless, and except to the extent that, such rights are expressly provided for in the certificate of incorporation. |
21
|
Austria | Delaware | ||
---|---|---|---|---|
Authority to Allot |
Under Austrian law, the management board may not allot shares, grant rights to subscribe for or to convert any security into shares unless a shareholder resolution to that effect has been passed at the company's general meeting, in each case in accordance with the provisions of the Austrian Stock Corporation Act. |
Under Delaware law, if the corporation's charter or certificate of incorporation so provides, the board of directors has the power to authorize the issuance of stock. It may authorize capital stock to be issued for consideration consisting of cash, any tangible or intangible property or any benefit to the corporation or any combination thereof. It may determine the amount of such consideration by approving a formula. In the absence of actual fraud in the transaction, the judgment of the directors as to the value of such consideration is conclusive. |
||
Liability of Directors and Officers |
Under Austrian law, any provision, whether contained in the company's articles of association or any contract or otherwise, that purports to exempt a management or supervisory board member from any liability that would otherwise attach to such board member in connection with any negligence, default, breach of duty or breach of trust in relation to the company is void. |
Under Delaware law, a corporation's certificate of incorporation may include a provision eliminating or limiting the personal liability of a director to the corporation and its stockholders for damages arising from a breach of fiduciary duty as a
director. However, no provision can limit the liability of a director for: any breach of the director's duty of loyalty to the corporation or its stockholders;
acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
intentional or negligent payment of unlawful dividends or stock purchases or redemptions; or
any transaction from which the director derives an improper personal benefit. |
||
Voting Rights |
Under Austrian law, each company share, except statutory preferred shares, entitles its holder to one vote at the general meeting. While Austrian law does not provide for a minimum attendance quorum for general meetings, the company's articles of association may so provide. In general, resolutions adopted at a general meeting of shareholders may be passed by a simple majority of votes cast, unless a higher majority is required by law. |
Delaware law provides that, unless otherwise provided in the certificate of incorporation, each stockholder is entitled to one vote for each share of capital stock held by such stockholder. |
22
|
Austria | Delaware | ||
---|---|---|---|---|
Shareholder Vote on Certain Transactions |
Majority approval by holders of at least 90% of the share capital is required for certain types of reorganizations, in particular: dissolution without liquidation and transfer of assets and liabilities by way of universal legal succession to the 90%shareholder (verschmelzende Umwandlung);
demerger whereby the distribution of new shares to shareholders of the demerging company is disproportional (nicht-verhältniswahrende Spaltung); and
squeeze-out of minority shareholders by a shareholders' resolution (Gesellschafterausschluss). |
Generally, under Delaware law, unless the certificate of incorporation provides for the vote of a larger portion of the stock, completion of a merger, consolidation, sale, lease or exchange of all or substantially all of a corporation's assets or dissolution requires: the approval of the board of directors; and
approval by the vote of the holders of a majority of the outstanding stock or, if the certificate of incorporation provides for more or less than one vote per share, a majority of the votes of the outstanding stock of a corporation entitled to vote on the matter. |
||
|
Unless otherwise provided for in the company's articles of association, an affirmative vote of holders of at least three-quarters of the share capital is required for: |
|||
|
an amendment to the company's articles of association; |
|||
|
the issuance of convertible bonds and similar hybrid instruments; |
|||
|
an ordinary increase in the stated share capital; and |
|||
|
the removal of members of the supervisory board. |
|||
|
Unless higher voting requirements are provided for in the company's articles of association, an affirmative vote of holders of at least three-quarters of the votes cast is required for: |
|||
|
amendment of the object of the business of the company; |
|||
|
post-formation acquisition (Nachgründung); |
|||
|
transfer of substantially all assets of the company or similar situations; |
|||
|
certain capital reorganizations, such as conditional capital increases, authorization of additional capital, and reduction in the capital stock; |
|||
|
dissolution of the company and continuation of the dissolved company; |
|||
|
transformation into a limited liability company; |
|||
|
certain types of reorganizations such as mergers and demergers; and |
23
|
Austria | Delaware | ||
---|---|---|---|---|
|
exclusion of shareholders' subscription rights in case of the issuance of new shares. |
|||
Standard of Conduct for Directors |
Under Austrian law, both management and supervisory board members must conduct their affairs with "the care and diligence of a prudent manager" and act in the best interests of the company, which includes the interests of the employees and shareholders. The scope of the fiduciary duties of management and supervisory board members is generally determined by the Austrian courts.
to act in accordance with the law and the company's articles of association and to exercise their powers only for the purposes for which they are conferred;
to report to the supervisory board on a regular basis as well as on certain important occasions;
to exercise reasonable care, skill and diligence;
to maintain a proper accounting system;
to not compete, directly or indirectly, with the company without permission by the supervisory board; and
to not effect transactions for the purpose of deriving an improper personal benefit. Members of the supervisory board owe substantially the same statutory and fiduciary duties to the company as members of the management board, including:
to effectively supervise the company's affairs and the management board;
to evaluate and issue a resolution on certain transactions which can only be conducted by the management board after approval of the supervisory board;
to approve the company's financial statements; and
to represent the company in transactions between the company and members of the management board. |
Delaware law does not contain specific provisions setting forth the standard of conduct of a director. The scope of the fiduciary duties of directors is generally determined by the courts of the State of Delaware. In general, directors have a duty to act without self-interest, on a well-informed basis and in a manner they reasonably believe to be in the best interest of the stockholders. In addition, under Delaware law, when the board of directors of a Delaware corporation approves the sale or break-up of a corporation, the board of directors may, in certain circumstances, have a duty to obtain the highest value reasonably available to the shareholders. |
24
|
Austria | Delaware | ||
---|---|---|---|---|
Stockholder Suits |
Under Austrian law, generally, the company, rather than its shareholders, is the proper claimant in an action with respect to a wrong committed against the company or in cases where there is an irregularity in the company's internal management or supervision. Therefore, such claims may only be raised by the company represented by its management board, or, in the case of a wrong committed by a member of the management board, by the supervisory board. The management board, or, if a claim is against a member of the management board, the supervisory board, is obliged to pursue the company's claims against the designated individuals if so resolved by a simple majority of votes cast during a shareholders meeting. A vote by holders of 10% of the share capital of the company may request the court to appoint a representative to pursue the claim on behalf of the company. If the company is unable to fulfil its third party obligations, the company's creditors may pursue the company's damage claims against members of the management board for certain wrongdoings. For certain wrongdoings of members of the management board and subject to the company not being able to fulfil its obligations vis-a-vis third parties, the company's creditors may pursue the company's damage claims against members of the management board themselves. In general, shareholders cannot bring forward damage claims against the company or its management or supervisory board since under Austrian law, they only suffer an indirect damage, as the decrease of their share value is merely a reflection of the decrease of the value of the company (which is the primarily damaged party) as a result of wrongdoings to the company. Only if the damage of a shareholder is the result of a breach of certain laws, which specifically aim at the protection of shareholders (Schutzgesetz), such claims may be pursued by the shareholder himself (e.g. wilful misrepresentation of financial numbers in reports or to the auditor by a member of the management board). |
Under Delaware law, a stockholder may initiate a derivative action to enforce a right of a corporation if the corporation fails to enforce the right itself. The complaint must: state that the plaintiff was a stockholder at the time of the transaction of which the plaintiff complains or that the plaintiffs shares thereafter devolved on the plaintiff by operation of law; and
allege with particularity the efforts made by the plaintiff to obtain the action the plaintiff desires from the directors and the reasons for the plaintiff's failure to obtain the action; or
state the reasons for not making the effort. Additionally, the plaintiff must remain a stockholder through the duration of the derivative suit. The action will not be dismissed or compromised without the approval of the Delaware Court of Chancery. |
25
DESCRIPTION OF AMERICAN DEPOSITARY SHARES
General
The Bank of New York Mellon, as depositary, will register and deliver American Depositary Shares, also referred to as ADSs. Each ADS will represent one tenth (1/10) of a common share (or a right to receive one tenth (1/10) of a common share) deposited with UniCredit Bank Austria AG, as custodian for the depositary in Vienna, Austria. Each ADS will also represent any other securities, cash or other property that may be held by the depositary. The depositary's office at which the ADSs will be administered is located at 101 Barclay Street, New York, New York 10286. The Bank of New York Mellon's principal executive office is located at 225 Liberty Street, New York, New York 10286.
You may hold ADSs either (A) directly (i) by having an American Depositary Receipt, also referred to as an ADR, which is a certificate evidencing a specific number of ADSs, registered in your name, or (ii) by having uncertificated ADSs registered in your name, or (B) indirectly by holding a security entitlement in ADSs through your broker or other financial institution that is a direct or indirect participant in The Depository Trust Company, also called DTC. If you hold ADSs directly, you are a registered ADS holder, also referred to as an ADS holder. This description assumes you are an ADS holder. If you hold the ADSs indirectly, you must rely on the procedures of your broker or other financial institution to assert the rights of ADS holders described in this section. You should consult with your broker or financial institution to find out what those procedures are.
Registered holders of uncertificated ADSs will receive statements from the depositary confirming their holdings.
As an ADS holder, you will not be treated as one of our shareholders and you will not have shareholder rights. Austrian law governs shareholder rights. The depositary will be the holder of the shares underlying your ADSs. As a registered holder of ADSs, you will have ADS holder rights. A deposit agreement among us, the depositary, ADS holders and all other persons indirectly or beneficially holding ADSs sets out ADS holder rights as well as the rights and obligations of the depositary. New York law governs the deposit agreement and the ADSs.
The following is a summary of the material provisions of the deposit agreement. For more complete information, you should read the entire deposit agreement and the form of ADR. Directions on how to obtain copies of those documents are provided in "Where You Can Find More Information" in this prospectus.
Dividends and Other Distributions
How will you receive dividends and other distributions on the shares?
The depositary has agreed to pay or distribute to ADS holders the cash dividends or other distributions it or the custodian receives on shares or other deposited securities, upon payment or deduction of its fees and expenses. You will receive these distributions in proportion to the number of shares your ADSs represent.
Cash. The depositary will convert any cash dividend or other cash distribution we pay on the shares into U.S. dollars, if it can do so on a reasonable basis and can transfer the U.S. dollars to the United States. If that is not possible or if any government approval is needed and cannot be obtained, the deposit agreement allows the depositary to distribute the foreign currency only to those ADS holders to whom it is possible to do so. It will hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the foreign currency and it will not be liable for any interest.
Before making a distribution, any withholding taxes, or other governmental charges that must be paid will be deducted. See "Taxation" in the applicable accompanying prospectus supplement. It will
26
distribute only whole U.S. dollars and cents and will round fractional cents to the nearest whole cent. If the exchange rates fluctuate during a time when the depositary cannot convert the foreign currency, you may lose some of the value of the distribution.
Shares. The depositary may distribute additional ADSs representing any shares we distribute as a dividend or free distribution. The depositary will only distribute whole ADSs. It will sell shares which would require it to deliver a fraction of an ADS (or ADSs representing those shares) and distribute the net proceeds in the same way as it does with cash. If the depositary does not distribute additional ADSs, the outstanding ADSs will also represent the new shares. The depositary may sell a portion of the distributed shares (or ADSs representing those shares) sufficient to pay its fees and expenses in connection with that distribution.
Rights to purchase additional shares. If we offer holders of our securities any rights to subscribe for additional shares or any other rights, the depositary may (i) exercise those rights on behalf of ADS holders, (ii) distribute those rights to ADS holders or (iii) sell those rights and distribute the net proceeds to ADS holders, in each case after deduction or upon payment of its fees and expenses. To the extent the depositary does not do any of those things, it will allow the rights to lapse. In that case, you will receive no value for them. The depositary will exercise or distribute rights only if we ask it to and provide satisfactory assurances to the depositary that it is legal to do so. If the depositary will exercise rights, it will purchase the securities to which the rights relate and distribute those securities or, in the case of shares, new ADSs representing the new shares, to subscribing ADS holders, but only if ADS holders have paid the exercise price to the depositary. U.S. securities laws may restrict the ability of the depositary to distribute rights or ADSs or other securities issued on exercise of rights to all or certain ADS holders, and the securities distributed may be subject to restrictions on transfer.
Other Distributions. The depositary will send to ADS holders anything else we distribute on deposited securities by any means it thinks is legal, fair and practical. If it cannot make the distribution in that way, the depositary has a choice. It may decide to sell what we distributed and distribute the net proceeds, in the same way as it does with cash. Or, it may decide to hold what we distributed, in which case ADSs will also represent the newly distributed property. However, the depositary is not required to distribute any securities (other than ADSs) to ADS holders unless it receives satisfactory evidence from us that it is legal to make that distribution. The depositary may sell a portion of the distributed securities or property sufficient to pay its fees and expenses in connection with that distribution. U.S. securities laws may restrict the ability of the depositary to distribute securities to all or certain ADS holders, and the securities distributed may be subject to restrictions on transfer.
The depositary is not responsible if it decides that it is unlawful or impractical to make a distribution available to any ADS holders. We have no obligation to register ADSs, shares, rights or other securities under the Securities Act. We also have no obligation to take any other action to permit the distribution of ADSs, shares, rights or anything else to ADS holders. This means that you may not receive the distributions we make on our shares or any value for them if it is illegal or impractical for us to make them available to you.
Deposit, Withdrawal and Cancellation
How are ADSs issued?
The depositary will deliver ADSs if you or your broker deposits shares or evidence of rights to receive shares with the custodian. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will register the appropriate number of ADSs in the names you request and will deliver the ADSs to or upon the order of the person or persons that made the deposit.
27
How can ADS holders withdraw the deposited securities?
You may surrender your ADSs for the purpose of withdrawal at the depositary's office. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will deliver the shares and any other deposited securities underlying the ADSs to the ADS holder or a person the ADS holder designates at the office of the custodian. Or, at your request, risk and expense, the depositary will deliver the deposited securities at its office, if feasible. The depositary may charge you a fee and its expenses for instructing the custodian regarding delivery of deposited securities.
How do ADS holders interchange between certificated ADSs and uncertificated ADSs?
You may surrender your ADR to the depositary for the purpose of exchanging your ADR for uncertificated ADSs. The depositary will cancel that ADR and will send to the ADS holder a statement confirming that the ADS holder is the registered holder of uncertificated ADSs. Alternatively, upon receipt by the depositary of a proper instruction from a registered holder of uncertificated ADSs requesting the exchange of uncertificated ADSs for certificated ADSs, the depositary will execute and deliver to the ADS holder an ADR evidencing those ADSs.
Voting Rights
How do you vote?
ADS holders may instruct the depositary how to vote the number of deposited shares their ADSs represent. If we request the depositary to solicit your voting instructions (and we are not required to do so), the depositary will notify you of a shareholders' meeting and send or make voting materials available to you. Those materials will describe the matters to be voted on and explain how ADS holders may instruct the depositary how to vote. For instructions to be valid, they much reach the depositary by a date set by the depositary. The depositary will try, as far as practical, subject to the laws of Austria and the provisions of our articles of association or similar documents, to vote or to have its agents vote the shares or other deposited securities as instructed by ADS holders. If we do not tell the depositary to solicit your voting instructions, you can still send voting instructions, and, in that case, the depositary may try to vote as you instruct, but it is not required to do so.
Except by instructing the depositary as described above, you will not be able to exercise voting rights unless you surrender your ADSs and withdraw the shares. However, you may not know about the meeting far enough in advance to withdraw the shares. In any event, the depositary will not exercise any discretion in voting deposited securities and it will only vote or attempt to vote as instructed.
We cannot assure you that you will receive the voting materials in time to ensure that you can instruct the depositary to vote your shares. In addition, the depositary and its agents are not responsible for failing to carry out voting instructions or for the manner of carrying out voting instructions. This means that you may not be able to exercise voting rights and there may be nothing you can do if your shares are not voted as you requested.
28
Fees and Expenses
Persons depositing or withdrawing shares or ADS holders must pay: |
For: | |
---|---|---|
$5.00 (or less) per 100 ADSs (or portion of 100 ADSs) |
Issuance of ADSs, including issuances resulting from a distribution of shares or rights or other property | |
|
Cancellation of ADSs for the purpose of withdrawal, including if the deposit agreement terminates |
|
$.05 (or less) per ADS |
Any cash distribution to ADS holders |
|
A fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited for issuance of ADSs |
Distribution of securities distributed to holders of deposited securities (including rights) that are distributed by the depositary to ADS holders |
|
$.05 (or less) per ADS per calendar year |
Depositary services |
|
Registration or transfer fees |
Transfer and registration of shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares |
|
Expenses of the depositary |
Cable, telex and facsimile transmissions (when expressly provided in the deposit agreement) |
|
|
Converting foreign currency to U.S. dollars |
|
Taxes and other governmental charges the depositary or the custodian has to pay on any ADSs or shares underlying ADSs, such as stock transfer taxes, stamp duty or withholding taxes |
As necessary |
|
Any charges incurred by the depositary or its agents for servicing the deposited securities |
As necessary |
The depositary collects its fees for delivery and surrender of ADSs directly from investors depositing shares or surrendering ADSs for the purpose of withdrawal or from intermediaries acting for them. The depositary collects fees for making distributions to investors by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services by deduction from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants acting for them. The depositary may collect any of its fees by deduction from any cash distribution payable (or by selling a portion of securities or other property distributable) to ADS holders that are obligated to pay those fees. The depositary may generally refuse to provide fee-attracting services until its fees for those services are paid.
From time to time, the depositary may make payments to us to reimburse us for costs and expenses generally arising out of establishment and maintenance of the ADS program, waive fees and expenses for services provided to us by the depositary or share revenue from the fees collected from ADS holders. In performing its duties under the deposit agreement, the depositary may use brokers,
29
dealers or other service providers that are affiliates of the depositary and that may earn or share fees or commissions.
Payment of Taxes
You will be responsible for any taxes or other governmental charges payable on your ADSs or on the deposited securities represented by any of your ADSs. The depositary may refuse to register any transfer of your ADSs or allow you to withdraw the deposited securities represented by your ADSs until those taxes or other charges are paid. It may apply payments owed to you or sell deposited securities represented by your ADSs to pay any taxes owed and you will remain liable for any deficiency. If the depositary sells deposited securities, it will, if appropriate, reduce the number of ADSs to reflect the sale and pay to ADS holders any proceeds, or send to ADS holders any property, remaining after it has paid the taxes.
Tender and Exchange Offers; Redemption, Replacement or Cancellation of Deposited Securities
The depositary will not tender deposited securities in any voluntary tender or exchange offer unless instructed to do so by an ADS holder surrendering ADSs and subject to any conditions or procedures the depositary may establish.
If deposited securities are redeemed for cash in a transaction that is mandatory for the depositary as a holder of deposited securities, the depositary will call for surrender of a corresponding number of ADSs and distribute the net redemption money to the holders of called ADSs upon surrender of those ADSs.
If there is any change in the deposited securities such as a sub-division, combination or other reclassification, or any merger, consolidation, recapitalization or reorganization affecting the issuer of deposited securities in which the depositary receives new securities in exchange for or in lieu of the old deposited securities, the depositary will hold those replacement securities as deposited securities under the deposit agreement. However, if the depositary decides it would not be lawful to hold the replacement securities because those securities could not be distributed to ADS holders or for any other reason, the depositary may instead sell the replacement securities and distribute the net proceeds upon surrender of the ADSs.
If there is a replacement of the deposited securities and the depositary will continue to hold the replacement securities, the depositary may distribute new ADSs representing the new deposited securities or ask you to surrender your outstanding ADRs in exchange for new ADRs identifying the new deposited securities.
If there are no deposited securities underlying ADSs, including if the deposited securities are cancelled, or if the deposited securities underlying ADSs have become apparently worthless, the depositary may call for surrender or of those ADSs or cancel those ADSs upon notice to the ADS holders.
Amendment and Termination
How may the deposit agreement be amended?
We may agree with the depositary to amend the deposit agreement and the ADRs without your consent for any reason. If an amendment adds or increases fees or charges, except for taxes and other governmental charges or expenses of the depositary for registration fees, facsimile costs, delivery charges or similar items, or prejudices a substantial right of ADS holders, it will not become effective for outstanding ADSs until 30 days after the depositary notifies ADS holders of the amendment. At the time an amendment becomes effective, you are considered, by continuing to hold your ADSs, to agree to the amendment and to be bound by the ADRs and the deposit agreement as amended.
30
How may the deposit agreement be terminated?
The depositary will terminate the deposit agreement if we instruct it to do so. The depositary may terminate the deposit agreement if:
If the deposit agreement will terminate, the depositary will notify ADS holders at least 90 days before the termination date. At any time after the termination date, the depositary may sell the deposited securities. After that, the depositary will hold the money it received on the sale, as well as any other cash it is holding under the deposit agreement, unsegregated and without liability for interest, for the pro rata benefit of the ADS holders that have not surrendered their ADSs. Normally, the depositary will sell as soon as practicable after the termination date.
After the termination date and before the depositary sells, ADS holders can still surrender their ADSs and receive delivery of deposited securities, except that the depositary may refuse to accept a surrender for the purpose of withdrawing deposited securities if it would interfere with the selling process. The depositary may refuse to accept a surrender for the purpose of withdrawing sale proceeds until all the deposited securities have been sold. The depositary will continue to collect distributions on deposited securities, but, after the termination date, the depositary is not required to register any transfer of ADSs or distribute any dividends or other distributions on deposited securities to the ADSs holder (until they surrender their ADSs) or give any notices or perform any other duties under the deposit agreement except as described in this paragraph.
Limitations on Obligations and Liability
Limits on our Obligations and the Obligations of the Depositary; Limits on Liability to Holders of ADSs
The deposit agreement expressly limits our obligations and the obligations of the depositary. It also limits our liability and the liability of the depositary. We and the depositary:
31
In the deposit agreement, we and the depositary agree to indemnify each other under certain circumstances.
Requirements for Depositary Actions
Before the depositary will deliver or register a transfer of ADSs, make a distribution on ADSs, or permit withdrawal of shares, the depositary may require:
The depositary may refuse to deliver ADSs or register transfers of ADSs when the transfer books of the depositary or our transfer books are closed or at any time if the depositary or we think it advisable to do so.
Your Right to Receive the Shares Underlying your ADSs
ADS holders have the right to cancel their ADSs and withdraw the underlying shares at any time except:
This right of withdrawal may not be limited by any other provision of the deposit agreement.
Pre-release of ADSs
The deposit agreement permits the depositary to deliver ADSs before deposit of the underlying shares. This is called a pre-release of the ADSs. The depositary may also deliver shares upon cancellation of pre-released ADSs (even if the ADSs are canceled before the pre-release transaction has been closed out). A pre-release is closed out as soon as the underlying shares are delivered to the depositary. The depositary may receive ADSs instead of shares to close out a pre-release. The depositary may pre-release ADSs only under the following conditions: (1) before or at the time of the pre-release, the person to whom the pre-release is being made represents to the depositary in writing that it or its customer owns the shares or ADSs to be deposited; (2) the pre-release is fully collateralized with cash or other collateral that the depositary considers appropriate; and (3) the
32
depositary must be able to close out the pre-release on not more than five business days' notice. The depositary will normally limit the number of ADSs that may be outstanding at any time as a result of pre-release to no more than 30% of the total ADSs outstanding. However, the depositary may disregard that limit from time to time as it deems appropriate. For example, a large cancellation of ADSs at a time when pre-releases are outstanding could cause the percentage of pre-released ADSs to temporarily exceed 30%. Although it is possible that this 30% limit may be exceeded from time to time, it is neither typical nor the intention of the ADS program for such limit to be significantly exceeded for an extended period of time.
Direct Registration System
In the deposit agreement, all parties to the deposit agreement acknowledge that the Direct Registration System, also referred to as DRS, and Profile Modification System, also referred to as Profile, will apply to the ADSs. DRS is a system administered by DTC that facilitates interchange between registered holding of uncertificated ADSs and holding of security entitlements in ADSs through DTC and a DTC participant. Profile is a feature of DRSs that allows a DTC participant, claiming to act on behalf of a registered holder of uncertificated ADSs, to direct the depositary to register a transfer of those ADSs to DTC or its nominee and to deliver those ADSs to the DTC account of that DTC participant without receipt by the depositary of prior authorization from the ADS holder to register that transfer.
In connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties to the deposit agreement understand that the depositary will not determine whether the DTC participant that is claiming to be acting on behalf of an ADS holder in requesting registration of transfer and delivery as described in the paragraph above has the actual authority to act on behalf of the ADS holder (notwithstanding any requirements under the Uniform Commercial Code). In the deposit agreement, the parties agree that the depositary's reliance on and compliance with instructions received by the depositary through the DRS/Profile system and in accordance with the deposit agreement will not constitute negligence or bad faith on the part of the depositary.
Shareholder Communications; Inspection of Register of Holders of ADSs
The depositary will make available for your inspection at its office all communications that it receives from us as a holder of deposited securities that we make generally available to holders of deposited securities. The depositary will send you copies of those communications or otherwise make those communications available to you if we ask it to. You have a right to inspect the register of holders of ADSs, but not for the purpose of contacting those holders about a matter unrelated to our business or the ADSs.
33
DESCRIPTION OF RIGHTS TO SUBSCRIBE FOR COMMON SHARES OR ADSs
We may issue rights to subscribe for our common shares or our ADSs. These rights may or may not be transferable. In connection with any offering of rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed after such offering.
The terms of the rights to subscribe for shares of our common shares or ADSs will be set forth in a prospectus supplement which, will describe, among other things:
34
Taxation in Austria
A general summary of certain Austrian tax considerations relating to the purchase, ownership and disposition of any of the securities offered by this prospectus will be set forth in a prospectus supplement relating to the offering of those securities.
Taxation in the United States
A general summary of the material U.S. federal income tax consequences relating to the purchase, ownership and disposition of any of the securities offered by this prospectus will be set forth in a prospectus supplement relating to the offering of those securities.
35
We may sell securities:
In addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing security holders, which may or may not be transferable. In any distribution of subscription rights to our shareholders, if all of the underlying securities are not subscribed for, we may then sell the unsubscribed securities directly to third parties or may engage the services of one or more underwriters, dealers or agents, including standby underwriters, to sell the unsubscribed securities to third parties.
We may directly solicit offers to purchase securities, or agents may be designated to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that could be viewed as an underwriter under the Securities Act, and describe any commissions that we must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis. This prospectus may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable prospectus supplement.
The distribution of the securities may be effected from time to time in one or more transactions:
Each prospectus supplement will describe the method of distribution of the securities and any applicable restrictions.
The prospectus supplement with respect to the securities of a particular series will describe the terms of the offering of the securities, including the following:
36
If any underwriters or agents are utilized in the sale of the securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement relating to such offering the names of the underwriters or agents and the terms of the related agreement with them.
If a dealer is utilized in the sale of the securities in respect of which the prospectus is delivered, we will sell such securities to the dealer, as principal. The dealer may then resell such securities to the public at varying prices to be determined by such dealer at the time of resale.
If we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.
Remarketing firms, agents, underwriters, dealers and other persons may be entitled under agreements which they may enter into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
If so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as our agents to solicit offers by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will not be subject to any conditions except that:
Certain agents, underwriters and dealers, and their associates and affiliates may be customers of, have borrowing relationships with, engage in other transactions with, or perform services, including investment banking services, for us or one or more of our respective affiliates in the ordinary course of business.
In order to facilitate the offering of the securities, any underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on such securities. Specifically, any underwriters may overallot in connection with the offering, creating a short position for their own accounts. In addition, to cover overallotments or to stabilize the price of the securities or of any such other securities, the underwriters may bid for, and purchase, the securities or any such other securities in the open market. Finally, in any offering of the securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize
37
or maintain the market price of the securities above independent market levels. Any such underwriters are not required to engage in these activities and may end any of these activities at any time.
Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in three business days, unless the parties to any such trade expressly agree otherwise. The applicable prospectus supplement may provide that the original issue date for your securities may be more than three scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any date prior to the third business day before the original issue date for your securities, you will be required, by virtue of the fact that your securities initially are expected to settle in more than three scheduled business days after the trade date for your securities, to make alternative settlement arrangements to prevent a failed settlement.
To comply with the securities laws of some states, if applicable, the securities may be sold in such jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the securities may not be sold unless they have been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.
The securities may be new issues of securities and may have no established trading market. The securities may or may not be listed on a national securities exchange. We can make no assurance as to the liquidity of or the existence of trading markets for any of the securities.
In compliance with the guidelines of the Financial Industry Regulatory Authority, or FINRA, the aggregate maximum discount, commission or agency fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will not exceed 8% of the proceeds from any offering pursuant to this prospectus and any applicable prospectus supplement.
38
Unless the applicable prospectus supplement indicates otherwise, certain legal matters of U.S. federal law and New York State law will be passed upon for us by Wilmer Cutler Pickering Hale and Dorr LLP. Unless the applicable prospectus supplement indicates otherwise, the validity of the securities in respect of which this prospectus is being delivered and certain legal matters with respect to Austrian law will be passed upon by Freshfields Bruckhaus Deringer LLP.
The financial statements incorporated in this prospectus by reference to the Annual Report on Form 20-F for the year ended December 31, 2015 have been so incorporated in reliance on the report of PwC Wirtschaftsprüfung GmbH, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The following table sets forth the expenses (other than underwriting discounts and commissions) expected to be incurred by us in connection with a possible offering of $75,000,000 of the securities registered under this registration statement. All amounts other than the SEC registration fee are estimates.
SEC registration fee |
$ | 8,693 | ||
FINRA filing fee |
* | |||
Printing and engraving |
* | |||
Accounting services |
* | |||
NASDAQ fees |
* | |||
Legal fees of registrant's counsel |
* | |||
Transfer agent's, trustee's and depository's fees and expenses |
* | |||
Miscellaneous |
* | |||
| | | | |
Total |
$ | * | ||
| | | | |
| | | | |
| | | | |
39
SERVICE OF PROCESS AND ENFORCEMENT OF JUDGMENTS
We are incorporated under the laws of Austria, and our registered offices and a significant portion of our assets are located outside of the United States. In addition, a member of our supervisory board is a residents of a jurisdiction other than the United States. As a result, it may be difficult for you to effect service of process upon such supervisory board member or upon us or to enforce judgments obtained in U.S. courts based on the civil liability provisions of the U.S. securities laws against us in the United States.
We have appointed C T Corporation System as our authorized agent upon whom process may be served in any action instituted in any U.S. federal or state court having subject matter jurisdiction arising out of or based upon the securities offered by this prospectus.
Litigation in Austria is also subject to rules of procedure that differ from the U.S. rules, including with respect to the taking and admissibility of evidence, the conduct of the proceedings and the allocation of costs. According to the Austrian Enforcement Act (ExekutionsordnungEO), foreign judgments are only enforceable if reciprocity is warranted by a bilateral or multilateral treaty between the countries involved or by an ordinance (Verordnung) of the Austrian government (in which ordinance the Austrian government confirms reciprocity). As the United States and Austria do not currently have a treaty providing for reciprocal recognition and enforcement of judgments in civil and commercial matters (except for arbitration awards in such matters), a final judgment for payment of money rendered by a federal or state court in the United States based on civil liability, whether or not predicated solely upon U.S. federal securities laws, will not be enforceable, either in whole or in part, in Austria. However, if the party in whose favor such final judgment is rendered brings a new suit in a competent court in Austria, such party may submit to the Austrian court the final judgment rendered in the United States. Under such circumstances, a judgment by a federal or state court of the United States against us or our managing directors will be regarded by an Austrian court only as evidence of the outcome of the dispute to which such judgment relates, and an Austrian court may choose to re-hear the dispute. In addition, awards of punitive damages in actions brought in the United States or elsewhere are generally not enforceable in Austria. Furthermore, actions brought in an Austrian court against us or any non-U.S. members of our management board, supervisory board or senior management to enforce liabilities based on U.S. federal securities laws may be subject to certain restrictions. For example, proceedings in Austria would have to be conducted in the German language, and all documents submitted to the court would, in principle, have to be translated into the German language. For these reasons, it may be difficult for a U.S. investor to bring an original action in an Austrian court predicated upon the civil liability provisions of the U.S. federal securities laws against us, the members of our management board and supervisory board and senior management. In addition, even if a judgment against our company or any non-U.S. members of our management board, supervisory board or senior management based on the civil liability provisions of the U.S. federal securities laws is obtained in the United States, a U.S. investor may not be able to enforce it in Austrian courts.
40
NABRIVA THERAPEUTICS AG
$75,000,000
Common Shares
American Depositary Shares representing Common Shares
Rights to Subscribe for Common Shares
PROSPECTUS
, 2016
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers.
We have provided directors' and officers' liability insurance for our supervisory board members, management board members and other members of senior management against civil liabilities, which they may incur in connection with their activities on behalf of our company, including insurance coverage against liabilities under the Securities Act of 1933, or Securities Act.
The exhibits to this Registration Statement are listed in the exhibit index, which appears elsewhere herein and is incorporated herein by reference.
The undersigned Registrant hereby undertakes:
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
II-1
II-2
II-3
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Vienna, Austria, on this 21st day of October, 2016.
NABRIVA THERAPEUTICS AG | ||||
By: |
/s/ COLIN BROOM Colin Broom Chief Executive Officer |
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned, hereby severally constitute and appoint Colin Broom, Gary Sender and Peter Wolf, and each of them singly, our true and lawful attorneys with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the Registration Statement on Form F-3 filed herewith and any and all amendments (including post-effective amendments) to said Registration Statement, and any registration statement filed pursuant to Rule 462 under the Securities Act of 1933, as amended, in connection with said Registration Statement, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all such things in our name and on our behalf in our capacities as supervisory board members and senior managers to enable Nabriva Therapeutics AG to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature
|
Title
|
Date
|
||||||
---|---|---|---|---|---|---|---|---|
/s/ COLIN BROOM Colin Broom |
Chief Executive Officer (Principal Executive Officer) | October 21, 2016 | ||||||
/s/ GARY SENDER Gary Sender |
Chief Financial Officer (Principal Financial and Accounting Officer) |
October 21, 2016 |
||||||
/s/ DANIEL BURGESS Daniel Burgess |
Chairman of the Supervisory Board |
October 21, 2016 |
||||||
/s/ AXEL BOLTE Axel Bolte |
Deputy Chairman of the Supervisory Board |
October 21, 2016 |
II-4
Signature
|
Title
|
Date
|
||||||
---|---|---|---|---|---|---|---|---|
/s/ CHAU KHUONG Chau Khuong |
Supervisory Board Member |
October 21, 2016 |
||||||
/s/ GEORGE TALBOT George Talbot |
Supervisory Board Member |
October 21, 2016 |
||||||
/s/ CHARLES ROWLAND Charles Rowland |
Supervisory Board Member |
October 21, 2016 |
||||||
/s/ STEPHEN WEBSTER Stephen Webster |
Supervisory Board Member |
October 21, 2016 |
||||||
/s/ MARK CORRIGAN Mark Corrigan |
Supervisory Board Member |
October 21, 2016 |
||||||
|
||||||||
By: |
/s/ COLIN BROOM |
|||||||
Name: | Colin Broom | |||||||
Title: | Chief Executive Officer |
II-5
Exhibit No. | Description | ||
---|---|---|---|
1.1 | * | Form of Underwriting Agreement | |
3.1 | Articles of Association of the Registrant (incorporated by reference to Exhibit 99.1 of the Registrant's Report on Form 6-K (File No. 001-37558), filed with the Securities and Exchange Commission on October 17, 2016) | ||
3.2 | By-Laws of the Supervisory Board of the Registrant (incorporated by reference to Exhibit 1.2 of the Registrant's Annual Report on Form 20-F (File No. 001-37558), filed with the Securities and Exchange Commission on April 28, 2016) | ||
3.3 | By-Laws of the Management Board of the Registrant (incorporated by reference to Exhibit 1.3 of the Registrant's Annual Report on Form 20-F (File No. 001-37558), filed with the Securities and Exchange Commission on April 28, 2016) | ||
4.1 | Deposit Agreement, dated September 17, 2015, among the Registrant, The Bank of New York Mellon, as depositary, and all owners and holders of ADSs issued thereunder (incorporated by reference to Exhibit 99.3 of the Registrant's Report on Form 6-K (File No. 001-37558), filed with the Securities and Exchange Commission on September 30, 2015) | ||
4.2 | Form of American Depositary Receipt (included in Exhibit 4.1) | ||
4.3 | Registration Rights Agreement, dated September 4, 2015, among the Registrant and the parties listed therein (incorporated by reference to Exhibit 4.4 of the Registrant's Registration Statement on Form F-1 (File No. 333-205073), as amended, filed with the Securities and Exchange Commission on September 8, 2015) | ||
4.4 | * | Form Subscription Rights Agreement and/or Certificate | |
5.1 | Opinion of Freshfields Bruckhaus Deringer LLP | ||
23.1 | Consent of PwC Wirtschaftsprüfung GmbH, independent registered public accounting firm for the Registrant | ||
23.2 | Consent of Freshfields Bruckhaus Deringer LLP (included in Exhibit 5.1) | ||
24.1 | Powers of Attorney (included on the signature pages to the Registration Statement) |
II-6
Exhibit 5.1
|
Freshfields Bruckhaus Deringer LLP | ||
|
Attorneys at Law |
| |
Nabriva Therapeutics AG
|
em. Dr Heinz H Löber, MCJ |
Dr Eva Katharina Hickl, LL M | |
|
|
| |
October 21, 2016 |
Doc ID |
Vienna | |
NABRIVA THERAPEUTICS AG Form F-3 Registration Statement under the Securities Act of 1933 |
|
E thomas.zottl@freshfields.com www.freshfields.com | |
Dear Sir / Madam,
Introduction
1. We are acting as legal advisers to Nabriva Therapeutics AG, a stock corporation (Aktiengesellschaft) incorporated under the laws of the Republic of Austria, registered under number FN 269261 y with the commercial register (Firmenbuch) of the Vienna Commercial Court (the Company) in connection with its filing of a Registration Statement on Form F-3 (the Registration Statement) with the U.S. Securities and Exchange Commission (the SEC) under the Securities Act of 1933, as amended (the Securities Act) for the registration of no par value common shares (the New Shares), and rights to subscribe for the New Shares of existing shareholders (the Rights), of the Company, at an aggregate initial offering price not to exceed $75,000,000, with each New Share having a notional par value of EUR 1.00 per share. The New Shares may be offered to investors indirectly via the issuance of American Depository receipts (ADS).
Capitalized terms used and not otherwise defined herein have the meaning assigned to such terms in
Freshfields Bruckhaus Deringer LLP is a limited liability partnership with its registered office at 65 Fleet Street, London EC4Y 1HS, England. It is registered with the Registrar of Companies for England and Wales at Companies House under company number OC334789 and is authorised and regulated by the Solicitors Regulation Authority. Freshfields Bruckhaus Deringer LLP, Zweigniederlassung Wien is registered with the commercial register of the Commercial Court of Vienna under no FN 311246 s.
A list of the members (and of the non-members who are designated as partners) of Freshfields Bruckhaus Deringer LLP is available for inspection at its registered office. Any reference to a partner means a member, or a consultant or employee with equivalent standing and qualifications, of Freshfields Bruckhaus Deringer LLP or any of its affiliated firms or entities. Please refer to www.freshfields.com/support/legalnotice for further information.
the Registration Statement. In this opinion, Austria means the Republic of Austria.
Scope of Opinion
2. The undersigned is admitted to the bar in Vienna, Austria and licensed as an attorney-at-law in Austria. This opinion is, therefore, limited to matters of Austrian law as presently in effect. Our opinions expressed herein are given on the basis that they represent a fair view of the legal position (vertretbare Rechtsansicht) under Austrian law but do not purport to reflect all positions taken by the courts and academic literature in the past with respect to a particular legal issue. We assume no obligation to update the opinions expressed herein if laws, facts or circumstances change after the date hereof. We have not investigated and do not express or imply an opinion with respect to the laws of any jurisdiction other than Austria. In particular, this opinion does not address itself to matters arising out of or in connection with the issuance or the listing of the ADS on The NASDAQ Global Market. We have not been instructed to review any tax or regulatory matters (other than those expressly mentioned in this opinion) and (except as stated otherwise in this opinion) any reference to Austrian law herein shall exclude the law relating to such matters. Except as necessary or appropriate for the purposes of this opinion, we have not independently verified factual matters for the purposes of this opinion, and our opinion does not purport to express or imply any opinion with regard to such matters, including the adequacy of any of the economic terms of the transactions contemplated in the Documents (as defined below). Nothing herein should be taken as expressing an opinion with respect to the representations and warranties or other factual statements (other than any facts that are the subject of this opinion), contained in the Documents (as defined below). Where this opinion letter refers to facts or documents known to us or statements are made based upon our knowledge, and in all other similar circumstances, such knowledge shall only be relevant with regard to the conscious awareness of those lawyers of our firm having worked specifically on the transaction being the subject matter of this opinion.
Language, Governing Law and Jurisdiction
3. In this opinion, Austrian legal terms have been translated into English. These translations may not always reflect the exact meaning of the terms in German. This opinion, therefore, may only be relied upon under the express condition that any issues arising hereunder (including, without limitation, issues of interpretation) will be governed by and construed in accordance with Austrian law as at the date of this opinion. The courts of Vienna, Austria shall have exclusive jurisdiction with respect to any matters of liability arising hereunder.
Documents Reviewed
4. In rendering this opinion, we have examined the following documents:
(a) a copy of the Companys articles of association (Satzung), as amended in the shareholders
meeting dated August 25, 2016 (the Articles);
(b) a copy of the resolution of the management board (Vorstand) of the Company and the supervisory board (Aufsichtsrat) of the Company authorizing and approving the filing of the Registration Statement; and
(c) a copy of the Registration Statement originally filed by the Company with the Commission on October 21, 2016 pursuant to the Securities Act and the rules and regulations promulgated thereunder (the Rules)
In addition, we have reviewed such certificates, corporate records and other documents, and such matters of law, as we have deemed necessary or appropriate for the purposes of this opinion. The documents referred to in paragraphs (a) to (c) are hereinafter collectively referred to as the Documents. We have not reviewed any other documents for the purposes of this opinion.
Searches and Enquiries
5. We have not made any searches or enquiries for the purposes of giving this opinion other than:
(a) an extract from the main book (Hauptbuch) of the commercial register (Firmenbuch) reflecting the entries in the commercial register regarding the Company, made on-line from the commercial register database on the date of this opinion (the Commercial Register Extract);
(b) on-line searches on the date of this opinion of the insolvency database (Insolvenzdatei) accessible via the relevant website (http://www.edikte1.justiz.gv.at) regarding any entries in the insolvency database concerning the Company; and
(c) an online search on the date of this opinion with the insolvency registers interconnection search interface of the European e-Justice Portal accessible via the relevant website (https://e-justice.europa.eu) regarding any entries in the insolvency databases of participating member states concerning the Company,
(the Searches).
Assumptions
6. In considering the above documents and in rendering this opinion we have with your consent and without any further enquiry assumed:
(a) the genuineness of all signatures on, and the authenticity and completeness of all documents submitted to us (whether as originals or copies);
(b) the conformity to originals of all Documents supplied to us as photocopies, portable document format (PDF) copies, facsimile copies or e-mail conformed copies (or any other means);
(c) that where a document has been examined by us in draft or specimen form, it will be or has been executed in the form of that draft or specimen;
(d) that nothing in this opinion is affected by any document other than the Documents;
(e) that the information revealed by the Searches is accurate and complete in all respects as of the date of the Searches and that no changes to the facts related therein have occurred between the date the Searches were made and the date hereof;
(f) that the Companys shareholder meeting at which the resolutions to authorize the management board, subject to the supervisory board, to increase the share capital by issuing the New Shares (authorized capital) was passed, was duly called, convened and held in full compliance with all applicable laws;
(g) that prior to the issuance of the New Shares the shareholders of the Company will not have taken any action for the winding up or dissolution of the Company and no proceedings will have been instituted for the winding up, liquidation or appointment of a receiver, trustee or similar officer in respect of all or any part of the undertaking, property, revenues or assets of the Company and nothing similar will have occurred under the laws of any applicable jurisdiction;
(h) that all individuals who will actually sign or who have signed the Documents (i) have sufficient legal competency and capacity to act (i.e. are of sufficient legal age without mental disability or incapacity) and (ii) are in fact the persons whose names appear on the signature pages of the relevant Documents;
(i) that neither the New Shares nor the Rights will be publicly offered in Austria within the meaning of the Austrian Capital Markets Act;
(j) that the Company will, at the time of issuance of the New Shares or the Rights, be effectively administered in the jurisdiction of its incorporation and have its centre of main interests within the meaning of Article 3 of the Council Regulation (EC) No 1346/2000 of 29 May 2000 on Insolvency Proceedings (the EU Insolvency Regulation) in such jurisdiction;
(k) that the authorizations of the management board and the supervisory board of the Company to issue New Shares will be validly adopted, duly registered with the commercial register and that the subscription rights of existing holders of common shares will not be excluded in connection with the issuance of New Shares;
(l) that the invitation to exercise the Rights, including the subscription price and the subscription ratio, will be duly published in accordance with Austrian law and that the Rights will be validly exercised within the statutory exercise period, which period may not be shorter than two weeks; and
(m) that the Registration Statement has been or will have been filed with the U.S. Securities and Exchange Commission in the form referred to in this opinion.
Opinion
7. Based on the foregoing and subject to the qualifications and limitations stated herein and to any factual matters or documents not disclosed to us and having regard to such considerations of Austrian law in force as at the date of this opinion, as we consider relevant, we are of the opinion that:
(a) upon timely resolution of the management and supervisory board of the Company to issue the New Shares out of authorized capital, credit of the issue price for the New Shares to the special capital increase account of the Company, registration of the capital increase with respect to the New Shares by the commercial register and delivery to the underwriters or purchasers of the New Shares in accordance with the applicable underwriting agreement or other purchase agreement, the New Shares will be duly and validly authorized, issued and, subject to payment of the difference between the nominal amount and the final offer price, fully paid and non-assessable (which term, as used herein, means that no further sums, in addition to the amount required for the New Shares to be fully paid, are required to be paid to the Company by the holders of such New Shares solely as a result of such holders ownership of such New Shares);
(b) the Rights are legally valid rights of the existing holders of common shares of the Company to subscribe for the New Shares at the subscription ratio as determined by the management board and the supervisory board of the Company; and
(c) upon timely resolution of the management and supervisory board of the Company to issue New Shares out of authorized capital without excluding subscription rights, exercise of the Rights, subsequent resolutions of the management and supervisory board of the Company following such exercise, credit of the issue price for the New Shares to the special capital increase account of the Company, registration of the capital increase with respect to the New Shares by the commercial register and delivery to the underwriters or purchasers of the New Shares in accordance with the applicable underwriting agreement or other purchase agreement, the New Shares following the exercise of the Rights will be duly and validly authorized, issued and, subject to payment of the difference between the nominal amount and the final offer price, fully paid and non-assessable (which term, as used herein, means that no
further sums, in addition to the amount required for the New Shares to be fully paid, are required to be paid to the Company by the holders of such New Shares solely as a result of such holders ownership of such New Shares).
Qualifications and Limitations
8. This opinion is subject to the following qualifications and limitations:
(a) for the purposes of this opinion we have relied upon the accuracy and completeness of the Commercial Register Extract. Entries in the commercial register are made by qualified court clerks upon review of the relevant documents. As long as a fact to be entered in the commercial register has not been registered and made public, it cannot be invoked against a third party by the person in respect of whose affairs it ought to have been entered, unless the first had knowledge of such fact. If the fact has been entered and made public, it can be held against a third party; this does not apply to legal acts undertaken within 15 days after publication, if the third party proves that he neither knew nor should have known of the fact entered in the commercial register. If someone causes an inaccurate entry being made in the commercial register or if he has recognized or could have recognized that an entry in the commercial register is inaccurate (even if he did not cause the inaccurate entry) and does not have it deleted, the inaccurate entry may be held against him by a third party in business dealings, unless he proves that the third party did not act in reliance on such entry or that the third party knew or gross negligently failed to know of the incorrectness of the entry.
However, the Commercial Register Extract is, in particular, not capable of revealing conclusively whether or not an application has been filed for:
(i) a winding up order has been made or a resolution has been passed for the winding up of the Company; or
(ii) a receiver or liquidator has been appointed; or
(iii) amendments to the Articles have been made,
as notice of these matters may not be filed with the commercial court immediately and, when filed, may not be entered in the commercial register database immediately. In addition, such searches are not capable of revealing, before a relevant order is made, whether or not a winding up petition has been presented, because such a petition would not be published in the commercial register;
(b) the Search made of the insolvency database in relation to the Company is only capable of revealing whether or not insolvency or business supervision proceedings (and any details
relating thereto) have been published online at the insolvency database with respect to the Company. It is not capable of revealing whether or not such petition with respect to such insolvency or business supervision proceedings has been presented, since such petitions will not be published in the insolvency database and, under Austrian law, insolvency or business supervision proceedings are not regarded as having commenced until the day following the publication of a decree to such effect (Insolvenzedikt) online with the insolvency database;
(c) the insolvency registers interconnection search interface of the European e-Justice Portal is a service provided by the European Commission. However, there is no legal basis yet for this search interface, in particular, there are no legal provisions regarding the reliance on the search results and data provided. Only some EU Member States are participating. We made a simple search using the name of the Company as search criteria. Participating registers may have specific national rules on the search criteria necessary, how long data is retained (details of insolvency proceedings might no longer be searchable), etc;
(d) we have, not searched the collection of documents (Urkundensammlung) containing physical and electronic documents which were filed for entries (or deletions of entries) in the main book of the commercial register regarding the Company or in compliance with certain other legal requirements. Therefore, we have relied on the extract of the main book of the commercial register as set out in clause 5(a) but have not verified those findings by examining whether there are any discrepancies or other deficiencies apparent from the documents otherwise contained in the collection of documents (Urkundensammlung);
(e) Pursuant to section 153(1) Stock Corporation Act (Aktiengesetz), shareholders generally are entitled to subscription rights (Bezugsrechte) allowing them to subscribe for any new shares (including securities convertible into shares, securities with warrants to purchase shares, securities with profit participation or participation certificates) to maintain their existing share in a companys share capital. Such subscription rights are in proportion to the number of shares held by the shareholder. Shareholders may waive or transfer their subscription rights. According to section 65(5) of the Stock Corporation Act, treasury shares held by a company are not entitled to subscription rights. Also, the management board of a company may be entitled under the articles of association of such company to exclude subscription rights in accordance with section 153(3) Stock Corporation Act.
Benefit of Opinion
9. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the references to this firm under the caption Legal Matters contained in the prospectus. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the Rules.
Very truly yours, |
|
|
|
|
|
/s/ Freshfields Bruckhaus Deringer LLP |
|
|
|
Freshfields Bruckhaus Deringer LLP |
|
Attorneys at Law, Vienna |
|
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of our report dated April 28, 2016 relating to the financial statements, which appears in Nabriva Therapeutics AGs Annual Report on Form 20-F for the year ended December 31, 2015. We also consent to the reference to us under the heading Experts in such Registration Statement.
/s/ Alexandra Rester |
|
Austrian Certified Public Accountant |
|
PwC Wirtschaftsprüfung GmbH
Vienna, Austria
October 21, 2016
?LR%?1_-
MA8@Q"L@57E6J4JV1%NV9!(K+F%M'M0=),DV=;'QSQT9&OU(S
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end