The Netherlands
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N/A
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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Large accelerated filer ☐
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Accelerated filer ☐
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Smaller reporting company ☐
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Title of Securities to be Registered
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Amount to be Registered(1)
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Proposed Maximum Offering Price Per Share
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Proposed Maximum Aggregate Offering Price
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Amount of Registration Fee(4)
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Common Shares, par value €0.12 each
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6,800,000(2)
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$4.73(3)
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$32,164,000
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$4,174.89
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(1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 (this “Registration Statement”) shall also cover any additional Common Shares that become issuable under
the InflaRx N.V. Long-Term Incentive Plan, as amended (the “Plan”) by reason of any share dividend, share split or other similar transaction.
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(2) |
Represents annual automatic increases to the number of Common Shares available for issuance under the Plan effective January 1, 2021, and a number of Common Shares that may become available for reissuance under the Plan in accordance
with the share counting and recycling provisions and other terms and conditions of the Plan. Common Shares available for issuance under the Plan were previously registered on a registration statement on Form S-8 filed with the Commission on
November 17, 2017 (Registration No. 333-221656).
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(3) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act on the basis of the average of the high and low prices reported for a Common Share on the NASDAQ Global Select Market
on July 24, 2020.
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(4) |
Pursuant to General Instruction E of Form S-8, a filing fee is being paid only with respect to the registration of an additional 6,800,000 Common Shares under the Plan.
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Item 3.
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Incorporation of Documents by Reference.
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Item 8.
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Exhibits.
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Exhibit Number
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InflaRx N.V. Articles of Association, dated November 7, 2017 (incorporated herein by reference to Exhibit 3.2 to Post-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form F-1, filed on November 9, 2017
(Registration No. 333-220962))
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Registration Rights Agreement (incorporated herein by reference to Exhibit 4.2 to Post-Effective Amendment No. 1 to the Registrant’s Registration Statement on Form F-1, filed on November 9, 2017 (Registration No. 333-220962))
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Opinion of NautaDutilh N.V., Dutch counsel of the Registrant, as to the validity of the common shares (filed herewith)
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Consent of NautaDutilh N.V., counsel of the Registrant (included in Exhibit 5.1)
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Consent of KPMG AG Wirtschaftsprüfungsgesellschaft (filed herewith)
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Powers of Attorney (included in the signature pages hereto)
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InflaRx N.V. Long-Term Incentive Plan (incorporated herein by reference to Exhibit 99 to the Registrant’s Registration Statement on Form S-8, filed on November 17, 2017 (Registration No. 333-221656)
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Amendment to InflaRx N.V. Long-Term Incentive Plan (filed herewith)
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InflaRx N.V.
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By:
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/s/ Niels Riedemann
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Name:
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Niels Riedemann
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Title:
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Chief Executive Officer
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Signature
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Title
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Date
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/s/ Niels Riedemann
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Chief Executive Officer and Director
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July 30, 2020
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Niels Riedemann
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(Principal Executive Officer)
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/s/ Arnd Christ
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Chief Financial Officer
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July 30, 2020
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Arnd Christ
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(Principal Financial and Accounting Officer)
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/s/ Nicolas Fulpius
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Chairman and Director
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July 30, 2020
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Nicolas Fulpius
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/s/ Renfeng Guo
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Director and Authorized Representative in the United States
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July 30, 2020
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Renfeng Guo
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/s/ Katrin Uschmann
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Director
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July 30, 2020
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Katrin Uschmann
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/s/ Lina Ma
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Director
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July 30, 2020
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Lina Ma
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/s/ Mark Kuebler
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Director
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July 30, 2020
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Mark Kuebler
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/s/ Richard Brudnick
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Director
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July 30, 2020
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Richard Brudnick
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ATTORNEYS • CIVIL LAW NOTARIES • TAX ADVISERS
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P.O. Box 7113
1007 JC Amsterdam
Beethovenstraat 400
1082 PR Amsterdam
T +31 20 71 71 000
F +31 20 71 71 111
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Amsterdam, July 30, 2020
To the Company
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2 |
a. |
drafts of documents reviewed by us will be signed in the form of those drafts, each copy of a document conforms to the original, each original is authentic, and each signature is the genuine signature of the
individual purported to have placed that signature;
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b. |
the Registration Statement has been declared effective by the SEC in the form reviewed by us;
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c. |
(i) no internal regulations (reglementen) have been adopted by any corporate body of the Company which would
affect the validity of the resolutions recorded in the Resolutions other than the Board Rules and (ii) the Current Articles are the Articles of Association currently in force and as they will be in force at each Relevant Moment;
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d. |
at each Relevant Moment, the resolutions recorded in the Resolutions are in full force and effect, the factual statements made and the confirmations given in the Resolutions are complete and correct and the
Resolutions of the General Meeting correctly reflect the resolutions recorded therein;
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e. |
at each Relevant Moment, the Company will not (i) have been dissolved (ontbonden), (ii) have ceased to exist
pursuant to a merger (fusie) or a division (splitsing), (iii) have been converted (omgezet) into another legal form, either national or foreign (except pursuant to the Deed of
Conversion and Amendment), (iv) have had its assets placed under administration (onder bewind gesteld), (v) have
been declared bankrupt (failliet verklaard), (vi) have been granted a suspension of payments (surseance van betaling verleend), or (vii) have been made subject to similar proceedings in any jurisdiction or otherwise been limited in its power to dispose of its assets;
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3 |
f. |
any offering of Awards, to the extent made in the Netherlands, has been, is and will be made in conformity with the Prospectus Regulation, the DFSA and the rules promulgated thereunder;
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g. |
at each Relevant Moment, (i) the relevant Award(s) shall have been validly granted as a right to subscribe for Ordinary Shares (recht tot het nemen van aandelen), (ii) shall be in full force and effect upon being exercised or settled, as applicable, (iii) shall have been validly exercised or settled, as
applicable, in accordance with the terms and conditions applicable to such Award(s) and (iv) any pre-emption rights in respect of such Award(s) shall have been validly excluded by the corporate body authorized to do so;
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h. |
at each Relevant Moment, each holder of the relevant Award(s) shall be an individual who has not (i) deceased, (ii) had his/her assets placed under administration (onder bewind
gesteld), (iii) been declared bankrupt (failliet verklaard), (iv) been granted a suspension of payments (surseance van betaling verleend), or (v)
been made subject to similar proceedings in any jurisdiction or otherwise been limited in the power to dispose of his/her assets; and
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i. |
at each Relevant Moment, the authorised share capital (maatschappelijk kapitaal) of the Company shall allow for the grant of Awards and the issuance of Plan Shares pursuant
to the exercise and settlement thereof.
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1. |
The Company has been duly incorporated as a besloten vennootschap met beperkte aansprakelijkheid and is validly existing as a naamloze
vennootschap.
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2. |
Subject to receipt by the Company of payment in full for, or other satisfaction of the issue price of, the Plan Shares in accordance with the Plan, and when issued and accepted in accordance with the Plan, the
Plan Shares shall be validly issued, fully paid and non-assessable.
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4 |
A. |
Opinion 1 must not be read to imply that the Company cannot be dissolved (ontbonden). A company such as the Company may be dissolved, inter alia by the competent court at
the request of the company's board of directors, any interested party (belanghebbende) or the public prosecution office in certain circumstances, such as when there are certain defects in the
incorporation of the company. Any such dissolution will not have retro-active effect.
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B. |
Pursuant to Section 2:7 DCC, any transaction entered into by a legal entity may be nullified by the legal entity itself or its liquidator in bankruptcy proceedings (curator)
if the objects of that entity were transgressed by the transaction and the other party to the transaction knew or should have known this without independent investigation (wist of zonder eigen onderzoek
moest weten). The Dutch Supreme Court (Hoge Raad der Nederlanden) has ruled that in determining whether the objects of a legal entity are transgressed, not only the description of the
objects in that legal entity's articles of association (statuten) is decisive, but all (relevant) circumstances must be taken into account, in particular whether the interests of the legal entity
were served by the transaction. Based on the objects clause contained in the Current Articles, we have no reason to believe that, by making Awards under the Plan, the Company would transgress the description of the objects contained in the
Current Articles. However, we cannot assess whether there are other relevant circumstances that must be taken into account, in particular whether the interests of the Company are served by making Awards under the Plan since this is a matter
of fact.
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C. |
Pursuant to Section 2:98c DCC, a naamloze vennootschap may grant loans (leningen verstrekken) only in accordance with the restrictions set out in Section 2:98c DCC, and may not provide security (zekerheid
stellen), give a price guarantee (koersgarantie geven) or otherwise bind itself, whether jointly and
severally or otherwise with or for third parties (zich op andere wijze sterk maken of zich hoofdelijk of anderszins naast of voor anderen verbinden) with a view to (met het oog op) the subscription or acquisition by third parties of shares in its share capital or depository
receipts. This prohibition also applies to its subsidiaries (dochtervennootschappen). It is generally assumed that a transaction entered into in
violation of Section 2:98c DCC is null and void (nietig). Based on the content of the Plan, we
have no reason to believe that the Company or its subsidiaries will violate Section 2:98c DCC in connection with the issue of Plan Shares. However, we cannot confirm this definitively, since the determination of whether a company (or a
subsidiary) has provided security, has given a price guarantee or has otherwise bound itself, with a view to the subscription or acquisition by third parties of shares in its share capital or depository receipts, as described above, is a matter of fact.
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5 |
D. |
The opinions expressed in this opinion letter may be limited or affected by:
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a. |
any applicable bankruptcy, insolvency, reorganisation, moratorium or other similar laws or procedures now or hereafter in effect, relating to or affecting the enforcement or protection of creditors' rights generally;
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b. |
the provisions of fraudulent preference and fraudulent conveyance (Actio Pauliana) and similar rights available in other jurisdictions to insolvency practitioners and insolvency office holders in
bankruptcy proceedings or creditors;
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c. |
claims based on tort (onrechtmatige daad);
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d. |
sanctions and measures, including but not limited to those concerning export control, pursuant to European Union regulations, under the Sanctions Act 1977 (Sanctiewet 1977) or other legislation;
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e. |
the Anti-Boycott Regulation, Anti Money Laundering Laws and related legislation; and
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f. |
the rules of force majeure (niet toerekenbare tekortkoming), reasonableness and fairness (redelijkheid en billijkheid), suspension
(opschorting), dissolution (ontbinding), unforeseen circumstances (onvoorziene omstandigheden) and vitiated consent
(i.e., duress (bedreiging), fraud (bedrog), abuse of circumstances (misbruik van omstandigheden) and error (dwaling)) or a difference of intention (wil) and declaration (verklaring).
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6 |
F. |
This opinion letter does not purport to express any opinion or view on the operational rules and procedures of any clearing or settlement system or agency.
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7 |
"Anti Money Laundering Laws"
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The European Anti-Money Laundering Directives, as implemented in the Netherlands in the Money Laundering and Terrorist Financing Prevention Act (Wet ter voorkoming van witwassen en financieren van terrorisme) and the Dutch Criminal Code (Wetboek van Strafrecht).
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"Anti-Boycott Regulation"
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The Council Regulation (EC) No 2271/96 of 22 November 1996 on protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based
thereon or resulting therefrom.
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"Articles of Association"
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The Company's articles of association (statuten) as they read from time to time.
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"Awards"
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Rights to subscribe for Ordinary Shares pursuant to the terms and conditions of the Plan and, to the extent relevant, the Resolutions.
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"Board"
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The Company's board of directors (bestuur).
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"Commercial Register"
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The Dutch Commercial Register (handelsregister).
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"Company"
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InflaRx N.V., a public company with limited liability (naamloze vennootschap),
registered with the Commercial Register under number 68904312.
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"Corporate Documents"
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The Deed of Incorporation, the Deed of Conversion and Amendment, the Current Articles, the Resolutions, the Extract and the Registration Statement.
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"Current Articles"
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The Articles of Association as they read after the execution of the Deed of Conversion and Amendment, following which, according to the Extract, no amendment to the Articles of Association was
effected.
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8 |
"DCC"
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The Dutch Civil Code (Burgerlijk Wetboek).
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"Deed of Conversion and Amendment"
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The deed of conversion and amendment to the Articles of Association (akte van omzetting en statutenwijziging) dated November 8,
2017.
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"Deed of Incorporation"
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The Company's deed of incorporation (akte van oprichting) dated June 6, 2017.
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"DFSA"
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The Dutch Financial Supervision Act (Wet op het financieel toezicht).
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"Extract"
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An extract from the Commercial Register relating to the Company, dated the date of this opinion letter.
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"General Meeting"
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The Company's general meeting (algemene vergadering).
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"NautaDutilh"
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NautaDutilh N.V.
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"the Netherlands"
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The European territory of the Kingdom of the Netherlands.
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"Ordinary Shares"
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Ordinary shares in the Company's capital, with a nominal value of EUR 0.12 each.
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"Plan"
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The Company's long-term incentive plan as filed as an exhibit to the Company's registration statement on Form S-8, filed on November 17, 2017 and amended pursuant to an amendment filed or to be filed as an exhibit to the Registration Statement.
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"Plan Shares"
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6,800,000 additional Ordinary Shares available for issuance under the Plan.
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"Prospectus Regulation"
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Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a
regulated market, and repealing Directive 2003/71/EC.
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9 |
"Registration Statement"
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The Company's registration statement on Form S-8 filed or to be filed on the date of this opinion letter with the SEC in the form reviewed by us.
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"Relevant Moment"
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Each time when one or more Awards are granted or one or more Plan Shares are issued pursuant to the exercise or settlement of the relevant Award(s).
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"Resolutions"
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Each of the following:
a. the written resolutions of the Board, dated July 29, 2020 and any other resolution passed by the relevant corporate
body or corporate bodies of the Company in connection with the granting of Awards and/or the issuance of Plan Shares (in each case including the exclusion of any pre-emption rights in connection therewith);
b. the signed minutes of the Company's general meeting held on July 16, 2020, together with the convening notice for
such general meeting with the explanatory notes thereto as available on the Company's website;
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"SEC"
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The United States Securities and Exchange Commission.
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