UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
CUREVAC N.V.
(Name of Issuer)
Common Shares €0.12 par value
(Title of Class of Securities)
N2451R105
(CUSIP Number)
Scott Sonnenblick
Linklaters LLP
1290 Avenue of the Americas
New York, NY 10104
+1 212 903 9292
(Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications)
January 13, 2022
(Date of Event Which Requires Filing of This Statement)
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The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page
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The information required on this cover page shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Act"), or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
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CUSIP No.
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N2451R105
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13D
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Page
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2
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of
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6
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Pages
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1
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NAMES OF REPORTING PERSONS
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KfW
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
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(b)
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (SEE INSTRUCTIONS)
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OO
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
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☐
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
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29,871,441*
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SHARED VOTING POWER
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115,601,965**
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SOLE DISPOSITIVE POWER
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29,871,441*
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10
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SHARED DISPOSITIVE POWER
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115,601,965**
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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115,601,965**
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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61.8%***
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
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OO
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* See Item 5 of the Statement of Beneficial Ownership on Schedule 13D (No. 005-91630) filed by KfW with the Securities and Exchange Commission (the “SEC”) on August 24, 2020 (the “Schedule 13D”).
** Based on the 29,871,441 common shares (the “Common Shares”) of CureVac N.V. (the “Issuer”) held by KfW and 85,730,524 Common Shares beneficially owned by dievini
Hopp BioTech holding GmbH & Co. KG (“dievini”) and DH-LT-Investments GmbH (“DH-LT”), pursuant to the Shareholders’
Agreement dated as of June 16, 2020, as entered into by and among KfW, dievini and Hopp and as amended by Supplement to the Shareholders’ Agreement dated as of August 14, 2020 and by Second Supplement to
the Shareholders’ Agreement dated as of January 13, 2022 (the “Shareholders’ Agreement”), and as set forth in the Statement of Beneficial Ownership on Schedule 13D/A (No.
005-91630) filed by dievini, DH-LT-Investments GmbH, DH-Capital GmbH & Co. KG, OH Beteiligungen GmbH & Co. KG, Hopp, Oliver Hopp, Daniel Hopp, Prof. Dr. Friedrich von Bohlen und Halbach, Prof. Dr. Christof Hettich, Dr. Mathias Hothum with
the SEC on October 15, 2021.
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CUSIP No.
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N2451R105
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13D
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Page
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3 |
of
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6
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Pages
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***Based on 186,952,406 Common Shares outstanding as of December 31, 2021.
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CUSIP No.
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N2451R105
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13D
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Page
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4 |
of
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6
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Pages
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This Amendment No. 3 to the Schedule 13D (the “Amendment No. 3”) amends and supplements the Schedule 13D, as amended by Amendment No. 1, dated as of
January 29, 2021 (the “Amendment No. 1”), and further amended by Amendment No. 2, dated as of October 15, 2021 (the “Amendment No. 2”), to account for the amendment
of the Shareholders’ Agreement. Except as amended and supplemented by the Amendment No. 1, the Amendment No. 2 and this Amendment No. 3, the Schedule 13D remains unchanged. In particular, Item 6 of the Schedule 13D is hereby amended to account
for the amendment of the Shareholders’ Agreement dated January 13, 2022 by replacing the section entitled “Shareholders’ Agreement” in its entirety with the following section. The remainder of Item 6 of the Schedule 13D remains unchanged.
| Item 6. |
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
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Shareholders’ Agreement
In connection with the Investment, the Reporting Person, dievini and Hopp entered into the Shareholders’ Agreement, agreeing to certain transfer restrictions and rights of first refusal
relating to their interests in the Issuer, certain nomination rights, and a voting agreement relating to certain specified actions. In particular, dievini and Hopp agreed to vote a specified number of their shares as directed by the Reporting
Person on certain specified actions, subject to certain exceptions. These specified actions include, inter alia: (i) transferring the tax domicile of the Issuer and/or the approval of the transfer of the corporate or administrative seat of
CureVac AG; (ii) relocating or ceasing activities in specified areas to a state outside the European Union to the extent (in particular in the area of the development of vaccines) material for the protection of the health of the population of the
European Union; (iii) entering into material mergers and acquisitions; and (iv) amendments to the articles of association of CureVac AG which would affect the foregoing matters. Under the terms of the Shareholders’ Agreement, Hopp had agreed to
purchase an aggregate of EUR 100 million of the Common Shares in a concurrent private placement at a price per share equal to the initial public offering price. Hopp has effected this purchase through DH-LT-Investments GmbH. In connection with
such concurrent private placement, DH-LT-Investments GmbH acceded to the Shareholders’ Agreement on August 14, 2020. The Shareholders’ Agreement has an initial fixed term that expires on December 31, 2023, subject to a right to extend for one
year for the benefit of each of the Reporting Person and dievini, and may be terminated after the initial fixed term, or the extended term, if applicable, by either party subject to six months’ notice prior the end of the applicable calendar
year.
On January 13, 2022, the parties to the Shareholders’ Agreement entered into that certain Second Supplement to the Shareholders’ Agreement (the “Second
Supplement”), whereby certain transfer restrictions and rights of first refusal relating to the parties’ interests in the Issuer, among others, were amended. Among other things, the Second Supplement:
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Provides that, out of the Shares held of record by dievini and DH-LT Investments GmbH at the time of the entry into the Shareholders’ Agreement, 49,897,938 Shares are Restricted Shares (the “Restricted Shares”) and 29,877,279 Shares are Non-restricted dievini Shares (the “Unrestricted
dievini Shares”);
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Increases the number of Unrestricted dievini Shares that dievini and DH-LT Investments GmbH may dispose of during the period starting from August 15, 2021 and ending on August 14, 2022 (the “Extended Lock-Up Period”) from shares having a total selling price of up to EUR 250,000,000.00 to shares having an aggregate consideration value
(defined as the higher of the purchase price or the stock market value (less a market standard discount on the stock market value)) of up to EUR 450,000,000.00 (the “Cap”) and clarifies that such disposals are not subject to the right of first refusal in favor of KfW and without the acquirer being obliged to accede to the Shareholder Agreement;
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Provides that any disposals by dievini after the Extended Lock-Up Period (but in case of Unrestricted dievini Shares only in excess of the Cap) are subject to a right of first refusal in favor of KfW;
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Allows dievini and the dievini Shareholders to transfer Common Shares to a wider group of people and entities which is now defined as (1) dievini’s affiliates, (2) the ultimate beneficial owners of
dievini and their relatives, (3) Dietmar Hopp, Daniel Hopp, Oliver Hopp, Prof Dr Christof Hettich, Dr Friedrich von Bohlen und Halbach, Dr Mathias Hothum and their respective relatives, and (4) partnerships and/or companies solely or
jointly controlled by the persons referred to in the foregoing clauses (2) and (3) (collectively, the “dievini Shareholders”) and
clarifies that such transfers are not subject to the right of first refusal in favor of KfW provided that such dievini Shareholders receiving Common Shares agree to be bound by the Shareholders’ Agreement and that certain other
conditions are satisfied;
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Eliminates dievini’s right of first refusal with respect to any transfer of Common Shares by KfW; and
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Provides that the Shareholders’ Agreement shall automatically terminate if the Reporting Person disposes of a number of Common Shares exceeding the aggregate consideration value (defined as the higher of
the purchase price or the stock market value (less a market standard discount on the stock market value)) of EUR 300,000,000 to a third party.
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CUSIP No.
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N2451R105
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13D
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Page
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5 |
of
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6
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Pages
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| Item 7. |
Materials to be Filed as Exhibits.
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| Exhibit No. | Description | |
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1
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Shareholders’ Agreement dated as of June 16, 2020 by and among KfW, dievini Hopp BioTech holding GmbH & Co. KG and Dietmar Hopp. (Incorporated herein by reference from Exhibit 5 of the Statement of
Beneficial Ownership on Schedule 13D (No. 005-91630) filed by KfW on August 24, 2020.)
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2
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Investment and Shareholders’ Agreement dated as of July 17, 2020, by and among CureVac AG and several shareholders. (Incorporated herein by reference from Exhibit 3.5 of CureVac N.V.’s prospectus on
Form F-1 of CureVac N.V. (No. 333-240076) filed with the SEC on August 10, 2020.)
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3
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Relationship Agreement dated as of July 17, 2020, by and among KfW, dievini Hopp BioTech holding GmbH & Co. KG and Dietmar Hopp, dated July 17, 2020. (Incorporated herein by reference from Exhibit
3.7 of CureVac N.V.’s prospectus on Form F-1 of CureVac N.V. (No. 333-240076) filed with the SEC on August 10, 2020.)
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4
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Form of Registration Rights Agreement dated as of August 14, 2020, by and among KfW, dievini and DH-LT-Investments GmbH. (Incorporated herein by reference from Exhibit 4.1 of CureVac N.V.’s prospectus
on Form F-1 of CureVac N.V. (No. 333-240076) filed with the SEC on August 10, 2020.)
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5
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Supplement to the Shareholders’ Agreement (Exhibit No. 1) dated as of August 14, 2020, by and among KfW, dievini Hopp BioTech holding GmbH & Co. KG, Dietmar Hopp and DH-LT Investments GmbH.
(Incorporated herein by reference from Exhibit 5 of the Statement of Beneficial Ownership on Schedule 13D (No. 005-91630) filed by KfW on August 24, 2020.)
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6
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Second Supplement to the Shareholders’ Agreement (Exhibit No. 2) dated as of January 13, 2022 by and among KfW, dievini Hopp BioTech holding GmbH & Co. KG, Dietmar Hopp and DH-LT Investments GmbH.
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CUSIP No.
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N2451R105
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13D
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Page
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6 |
of
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6
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Pages
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.
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Dated: January 13, 2022
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KfW
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By:
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/s/ Klasen
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Name: Jan Klasen
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Title: First Vice President
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By:
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/s/ Pradkhan
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Name: Elina Pradkhan
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Title: Senior Manage
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ANNEX A
The following sets forth the name, position, principal occupation and citizenship of each member of the executive board of KfW as set forth on the website of KfW as of January 13, 2022.
EXECUTIVE BOARD
| Name | Principal Occupation or Employment | Business Address | Citizenship | |||
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Stefan Wintels
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CEO of KfW
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(1)
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Germany
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Christiane Laibach
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Member of the Executive Board of KfW
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(1)
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Germany
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Melanie Kehr
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CIO of KfW
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(1)
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Germany
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Bernd Loewen
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CFO of KfW
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(1)
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Germany
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Dr Stefan Peiß
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CRO of KfW
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(1)
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Germany
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| (1) |
Palmengartenstrasse 5-9, 60325 Frankfurt am Main, Germany
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Exhibit Index
| Exhibit No. | Description | |
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1
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Shareholders’ Agreement dated as of June 16, 2020 by and among KfW, dievini Hopp BioTech holding GmbH & Co. KG and Dietmar Hopp. (Incorporated herein by reference from Exhibit 5 of the Statement of
Beneficial Ownership on Schedule 13D (No. 005-91630) filed by KfW on August 24, 2020.)
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2
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Investment and Shareholders’ Agreement dated as of July 17, 2020, by and among CureVac AG and several shareholders. (Incorporated herein by reference from Exhibit 3.5 of CureVac N.V.’s prospectus on
Form F-1 of CureVac N.V. (No. 333-240076) filed with the SEC on August 10, 2020.)
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3
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Relationship Agreement dated as of July 17, 2020, by and among KfW, dievini Hopp BioTech holding GmbH & Co. KG and Dietmar Hopp, dated July 17, 2020. (Incorporated herein by reference from Exhibit
3.7 of CureVac N.V.’s prospectus on Form F-1 of CureVac N.V. (No. 333-240076) filed with the SEC on August 10, 2020.)
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4
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Form of Registration Rights Agreement dated as of August 14, 2020, by and among KfW, dievini Hopp BioTech holding GmbH & Co. KG and DH-LT-Investments GmbH. (Incorporated herein by reference from
Exhibit 4.1 of CureVac N.V.’s prospectus on Form F-1 of CureVac N.V. (No. 333-240076) filed with the SEC on August 10, 2020.)
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5
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Supplement to the Shareholders’ Agreement (Exhibit No. 1) dated as of August 14, 2020, by and among KfW, dievini Hopp BioTech holding GmbH & Co. KG, Dietmar Hopp and DH-LT Investments GmbH.
(Incorporated herein by reference from Exhibit 5 of the Statement of Beneficial Ownership on Schedule 13D (No. 005-91630) filed by KfW on August 24, 2020.)
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Second Supplement to the Shareholders’ Agreement (Exhibit No. 2) dated as of January 13, 2022 by and among KfW, dievini Hopp BioTech holding GmbH & Co. KG, Dietmar Hopp and DH-LT Investments GmbH.
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Exhibit 6
Non-binding convenience translation from German into English
Execution Version
Shareholders’ Agreement
in relation to the Parties’ share
portfolios
in CureVac N.V. (NL-Amsterdam)
dated 16 June 2020
as amended by the 1st Supplement dated 14 August 2020
between
KfW
Palmengartenstr. 5-9
60325 Frankfurt am Main
– hereinafter referred to as “Federal Investor” –
on the one hand
and
dievini Hopp BioTech holding GmbH & Co. KG
represented by its general partner dievini Verwaltungs GmbH
Johann-Jakob-Astor-Str. 57
69190 Walldorf
– hereinafter referred to as “dievini” –
Mr Dietmar Hopp
Johann-Jakob-Astor-Str. 57
69190 Walldorf
– hereinafter referred to as “DH” –
and
DH-LT Investments GmbH
Opelstraße 28
68789 St. Leon-Rot
– hereinafter referred to as “DH-LT” –
- Federal Investor, dievini, DH and DH-LT hereinafter jointly referred to as
the “Parties” or individually as a “Party” –
Page 1 of 23
Non-binding convenience translation from German into English
2nd Supplement to the Shareholders’ Agreement
between Federal Investor, dievini, DH and DH-LT
Execution Version
between Federal Investor, dievini, DH and DH-LT
Execution Version
Preamble
| A |
On 16 June 2020, the Parties (except for DH-LT) entered into a shareholders’ agreement in relation to the Parties’ share portfolios in CureVac N.V. (NL-Amsterdam). DH-LT acceded to such shareholders’ agreement under a supplement to the shareholders’ agreement dated 14 August 2020 (“1st Supplement”) (the shareholders’ agreement as amended by the 1st Supplement is referred to as the “Shareholders’ Agreement”).
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| B |
With this 2nd Supplement, the Parties intend to amend the Shareholders’ Agreement and
clarify some aspects of it.
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Now therefore, the Parties agree as follows:
| 1 |
Amendment to recital I
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Recital I to the Shareholders’ Agreement is supplemented as follows:
| I |
[…] The number of Restricted Shares held by dievini and the Federal
Investor directly after the IPO of CureVac N.V. and of Non-Restricted dievini Shares are
as follows:
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Restricted Shares held by dievini: 49,897,938 shares;
Restricted Shares held by the Federal Investor: 29,871,441 shares;
Unrestricted dievini Shares held by dievini:
29,877,2791 shares.
| 1 |
In the course of the realization of a first execution event as set forth in the VESOP (employee stock option plan of CureVac AG) triggered by the IPO of CureVac N.V. pursuant to section 23 of
the Investment and Shareholders Agreement dated 17 July 2020, DH-LT has granted to dievini an amount of 704,027 shares in CureVac N.V. so required
by way of a share loan as per 15 March 2021; such 704,027 shares have been transferred to CureVac AG directly in accordance with the applicable terms and conditions. In September 2021, dievini has returned such share loan to DH-LT by transfer of 404,027 Unrestricted dievini Shares and has terminated the share loan relationship. Since
a second tranche of 709,166 Unrestricted dievini Shares was transferred on 13 October 2021 by dievini to CureVac AG
as a result of dievini’s obligations under the VESOP, the number of Unrestricted dievini Shares in
the Investment dievini has been reduced to 28,464,086 altogether, considering both aforementioned transfers.
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Page 2 of 23
Non-binding convenience translation from German into English
2nd Supplement to the Shareholders’ Agreement
between Federal Investor, dievini, DH and DH-LT
Execution Version
between Federal Investor, dievini, DH and DH-LT
Execution Version
| 2 |
Amendment to Section 5
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Section 5 of the Shareholders’ Agreement is restated as follows:
| 5 |
Disposal of Restricted Shares
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| 5.1 |
During the term of this Agreement, dievini and the dievini Shareholders shall not dispose of, transfer, encumber or
lend any of the Restricted Shares held by them or take any other measures which will result or could result in a loss and/or transfer of voting rights (each of the legal transactions referred to
above a “Disposal”; the term “dispose of” is to be construed accordingly), except to the extent expressly
permitted under this Agreement. The defined terms “Disposal” or “dispose of” shall apply pursuant to the terms of this Agreement also to the Restricted Shares held by the Federal Investor and the Unrestricted dievini Shares. “Disponor” shall be anyone making a Disposal.
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| 5.2 |
During the term of this Agreement, the Federal Investor shall not dispose of any of the Restricted Shares held by it, except to the extent expressly permitted under this Agreement.
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| 5.3 |
Any Disposal of Restricted Shares by dievini for the benefit of
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| 5.3.1 |
dievini’s affiliates (verbundene Unternehmen) within the meaning of Sections 15 et seq. AktG,
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| 5.3.2 |
individuals being ultimate beneficiaries of dievini and their relatives (Angehörige) within the meaning of Section 15 AO,
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| 5.3.3 |
Mr Dietmar Hopp, Mr Daniel Hopp, Mr Oliver Hopp, Prof Dr Christof Hettich, Dr Friedrich von Bohlen und Halbach, Dr Mathias Hothum and their respective relatives within the meaning of Section 15 AO and
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| 5.3.4 |
partnerships and/or companies solely or jointly controlled by the persons referred to in Sections 5.3.2 and 5.3.3 above
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Page 3 of 23
Non-binding convenience translation from German into English
2nd Supplement to the Shareholders’ Agreement
between Federal Investor, dievini, DH and DH-LT
Execution Version
between Federal Investor, dievini, DH and DH-LT
Execution Version
(each of the individuals or legal entities referred to in Sections 5.3.1 to 5.3.4 a “dievini Shareholder”)
does not contradict the principle in Section 5.1 and is expressly permitted without observing the right of first refusal mechanism set out in Sections 6.4 et seq. for the benefit
of the Federal Investor, provided that (i) the relevant acquirer(s) fully accede(s) to this Agreement with effect as of the acquisition and fully submit(s) to the obligations existing hereunder with
respect to the special binding characteristics and obligations existing with respect to the Restricted Shares disposed of to it/them and fully assume(s)
the rights existing hereunder (cf. Section 13.2), (ii) the acquirer’s capacity as a dievini Shareholder is confirmed, no later than at the time of delivering the accession agreement pursuant to Section
13.2, by any of the documents listed in Annex 1 that are suitable as proof of such capacity and (iii) in the event that the aforementioned relationship ends, it is ensured that the Restricted Shares shall (again) be (re)-disposed of to dievini or dievini Shareholders,
provided that the relevant acquirer(s) (if such acquirer(s) is/are not fully bound by this Agreement yet with respect to the Restricted Shares) fully accede(s) to this Agreement with effect as of the
acquisition and fully submit(s) to the obligations existing hereunder with respect to the special binding characteristics and obligations existing with respect to the Restricted Shares (re)-disposed of to it/them and fully assume(s) the rights existing hereunder.
| 5.4. |
Any Disposal of Restricted Shares by the Federal Investor to the Bund or for the benefit of the Bund’s affiliates within the meaning of Sections 15 et seq. AktG or legal entities controlled by it, in particular to any public law
institutions, bodies or corporations (Körperschaften oder Anstalten) sponsored by the Bund
(any of the aforementioned and the Bund itself a “Bund Related
Party”), does not contradict the principle in Section 5.1 and is expressly permitted, provided that the relevant acquirer(s) fully accede(s) to this Agreement with effect as of the acquisition and
fully submit(s) to the obligations existing hereunder with respect to the special binding characteristics and obligations existing with respect to the Restricted Shares disposed of to it/them and fully assume(s) the rights existing hereunder (cf. Section 13.2) and
provided that, in the event that the aforementioned relationship ends, it is ensured that the Restricted Shares shall (again) be
(re)-disposed of to the Bund or any Bund Related Party, provided that the relevant acquirer(s) (if such acquirer(s) is/are not fully bound by this
Agreement yet with respect to the Restricted Shares) fully accede(s) to this Agreement with effect as of the acquisition and fully
submit(s) to the obligations existing hereunder with respect to the special binding characteristics and obligations existing with respect to the Restricted Shares (re)-disposed of to it/them and fully assume(s) the rights existing hereunder.
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Page 4 of 23
Non-binding convenience translation from German into English
2nd Supplement to the Shareholders’ Agreement
between Federal Investor, dievini, DH and DH-LT
Execution Version
between Federal Investor, dievini, DH and DH-LT
Execution Version
| 3 |
Amendment to Sections 6.1, 6.2 and 6.3
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Section 6.1 is deleted without replacement; to continue the existing numbering of the subsequent sub-sections of Section 6, Section 6.1 is intentionally left blank. Sections 6.2 and 6.3 of the Shareholders’ Agreement are restated as follows:
| 6.1 |
[left blank]
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| 6.2.1 |
dievini and/or dievini Shareholders shall be permitted at any time to dispose
of (i) Restricted Shares pursuant to Section 5.3 and (ii) Unrestricted dievini Shares to
dievini Shareholders in each case in an unlimited amount and without observing the right of first refusal mechanism set out in Sections 6.4 et seq. in favour of the Federal Investor.
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Page 5 of 23
Non-binding convenience translation from German into English
2nd Supplement to the Shareholders’ Agreement
between Federal Investor, dievini, DH and DH-LT
Execution Version
between Federal Investor, dievini, DH and DH-LT
Execution Version
dievini Shareholders to which Unrestricted dievini Shares are disposed of undertake to observe the special binding characteristics and obligations arising out of this Agreement with respect to the Unrestricted dievini Shares which have been disposed of to them (including, without limitation, such under Section 4.5) in such a manner as if the Disposal by dievini had not occurred. Section 5.3 shall apply mutatis mutandis if dievini Shareholders accede to this Agreement in the event of a Disposal of Unrestricted dievini Shares and in such event the dievini Shareholders concerned shall also submit documents suitable as proof of such
capacity in accordance with Annex 1 and fully accede to this Agreement with effect as of the acquisition and fully submit to the obligations
existing hereunder with respect to the special binding characteristics and obligations existing with respect to the Unrestricted dievini Shares disposed of to them and fully assume the rights existing hereunder (cf. Section 13.2).
Provided that the above provisions under Section 6.2.1 are observed, Disposals and/or (re)-Disposals of Restricted Shares or Unrestricted dievini Shares shall
be permitted at any time as between dievini Shareholders inter se and/or between dievini Shareholders and dievini,
and each such Disposal and/or (re)-Disposal of Restricted Shares or Unrestricted dievini Shares shall not trigger he right of first refusal mechanism pursuant to Sections 6.4 et seq. in favour of the Federal
Investor.
| 6.2.2 |
A Disposal of Restricted Shares and/or, after the end of the Initial
Lock-up Period, a Disposal of Unrestricted dievini Shares by dievini and/or dievini Shareholders to individuals or legal entities other than (i) dievini, (ii) dievini Shareholders, (iii) the Federal Investor or (iv) Bund-Related Parties (each such other
individual or legal entity a “Third-Party Acquirer”) is only permitted if expressly provided for in the following provisions:
|
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Execution Version
| 6.2.2.2 |
The right of first refusal mechanism set out in Sections 6.4 et seq. in favour of the Federal Investor shall not be triggered with respect to any Disposals of Unrestricted dievini Shares to Third-Party
Acquirers by dievini and/or dievini Shareholders up to the Cap. In such event, Third-Party Acquirers shall not be obliged to accede to this Agreement with respect to the Unrestricted dievini Shares disposed of to them; accordingly, none of dievini and/or the dievini Shareholder(s), each in its/their capacity as Disponor(s), are under any obligation to procure that such Third-Party Acquirer accedes to this Agreement. dievini
and/or the dievini Shareholders shall, however, inform the Federal Investor of such Disposal five
(5) banking days before entering into a binding agreement on the Disposal.
|
| 6.2.2.3 |
After the expiry of the Extended Lock-up Period, dievini and/or the dievini
Shareholders shall be permitted to dispose of all Unrestricted dievini Shares to Third-Party Acquirers without limitation. For the avoidance of doubt, the right of first refusal mechanism under Sections 6.4 et seq. in favour of the Federal
Investor shall be triggered if and to the extent the Cap is exceeded by one or multiple Disposals of Unrestricted dievini Shares (including Disposals under Section 6.2.2.1).
|
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Execution Version
A Disposal of Restricted Shares held by
dievini and/or dievini Shareholders to any Third-Party Acquirer shall be permitted only upon expiry of the Extended Lock-up Period and only if such Third-Party Acquirer fully accedes to this Agreement with effect as of the acquisition and fully submits to the obligations existing
hereunder with respect to the special binding characteristics and obligations existing with respect to the Restricted Shares disposed of to it and fully
assumes the rights existing hereunder and also obliges any successors in title (individual or general) to accede to this Agreement as well. The right of first refusal mechanism set out in Sections 6.4 et seq. in favour of the Federal Investor shall be triggered in such event. Section 13.2 applies.
| 6.2.3 |
In any Disposal of Restricted Shares held by dievini or dievini Shareholders (including under Section 5.3) and/or Unrestricted dievini Shares, dievini or the
relevant dievini Shareholder, as the case may be, each in their capacity as Disponor, shall classify the shares to be disposed of as Restricted Shares and/or Unrestricted dievini Shares and
notify the Federal Investor of such classification together with the accession agreement at the latest – or, in case of Disposals under Section
6.2.2.2, together with the information to be provided in accordance with the final sentence of Section 6.2.2.2; pursuant to Annex 1, the number of Restricted
Shares and/or Unrestricted dievini Shares to be disposed of as well as the number Restricted Shares and Unrestricted dievini Shares remaining with dievini and/or the dievini Shareholders must each be specified in such cases. Shares may only be classified as Unrestricted
dievini Shares as long as a Disposal of such shares is permitted in accordance with the provisions hereof.
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Execution Version
If and to the extent that the Federal Investor (and/or any Bund
Related Party to whom Restricted Shares were disposed of pursuant to Section 5.4) disposes of Restricted Shares exceeding an aggregate consideration value (the higher of the purchase price and the stock market value (less a market standard discount on the stock
market value) at the time the Disposal is closed) of EUR 300,000,000.00 (in words: three hundred million Euro) (the “Bund Cap”) to a Third-Party Acquirer under one or more of such Disposals, this Agreement shall end pursuant to Section 9.3. Any Disposal pursuant to Section 5.4 shall not be taken into account when calculating the Bund Cap, provided that the Restricted
Shares disposed of pursuant to Section 5.4 are not disposed of to a Third-Party Acquirer.
If and to the extent that Restricted Shares are disposed of in accordance with the
provisions of Section 6.3 sentence 1, the Investment Bund to be contributed by the Federal Investor for the purpose of the De Facto GM-Majority per IPO shall be reduced accordingly by the number of Restricted Shares so disposed of.
For the avoidance of doubt, reducing the Investment Bund itself shall not have any impact on the Investment dievini to be contributed by dievini for the purpose of the De Facto GM-Majority per IPO or the number of Unrestricted dievini Shares, which shall remain unchanged in each case.
For the avoidance of doubt, the right of first refusal mechanism pursuant to Sections 6.4 et seq. in favour of dievini and/or a dievini Shareholder shall not apply to any Disposal made by the Federal Investor pursuant to this Section
6.3.
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[…]
| 4 |
Amendment to Section 6.6
|
Section 6.6 of the Shareholders’ Agreement is deleted and replaced by the following restatement:
| 6.6 |
Notwithstanding any other provisions of this Section 6, dievini and the dievini Shareholders shall be permitted at
any time after the expiry of 14 August 2021 to dispose of up to 7,421,2172 Unrestricted dievini Shares (the “Prior VESOP Shares”) for the purpose of fulfilling
dievini’s obligations arising from and in connection with an employee stock option plan introduced by CureVac AG in 2009 (the “Prior VESOP”) – inter alia under Section 31.4 in conjunction with Sections 23.3 and 23.4 of the Investment and Shareholders’
Agreement regarding CureVac AG dated 17 July 2020 – to CureVac AG, CureVac N.V. or to any direct beneficiary under the Prior VESOP without triggering the right of first refusal mechanism in Sections 6.4 et seq. in favour of the Federal Investor as
a result of such and any subsequent Disposal of the Prior VESOP Shares. Subject to the same terms and conditions, dievini and the dievini Shareholders shall be alternatively permitted to dispose of such number of Prior VESOP Shares to third parties which corresponds to the number of shares of CureVac N.V. that these third parties made available to dievini for the purposes of fulfilling its obligations arising from and in connection with the Prior VESOP. Disposals
permissible under the first and second sentences of this Section 6.6 may also be combined in any manner until the maximum number of Prior VESOP Shares is reached.
|
| 2 |
In the course of the realization of a first execution event as set forth in the VESOP (employee stock option plan of CureVac AG) triggered by the IPO of CureVac N.V. pursuant to section 23 of
the Investment and Shareholders Agreement dated 17 July 2020, DH-LT has granted to dievini an amount of 704,027 shares in CureVac N.V. so required
by way of a share loan as per 15 March 2021; such 704,027 shares have been transferred to CureVac AG directly in accordance with the applicable terms and conditions. In September 2021, dievini has returned such share loan to DH-LT by transfer of 404,027 Unrestricted dievini Shares and has terminated the share loan relationship. Since
a tranche of 709,166 Unrestricted dievini Shares was transferred on 13 October 2021 by dievini to CureVac AG as a result of dievini’s obligations under the VESOP, the number of Unrestricted dievini Shares which dievini is entitled to dispose
of to CureVac AG, CureVac N.V. or a direct beneficiary under the Prior VESOP pursuant to
this Section 6.6 has been reduced to 6,008,024 at the date of this 2nd Supplement to the Shareholders’ Agreement, considering both aforementioned transfers.
|
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Execution Version
| 5 |
Amendment to Section 9.3
|
Section 9.3 of the Shareholders’ Agreement is restated as follows:
| 9.3 |
The Agreement further ends without need of a termination notice if and when the Bund Cap is exceeded as a result of
a Disposal of Restricted Shares of the Investment Bund to a Third-Party Acquirer after the expiry of the Initial Lock-up Period.
|
| 6 |
Amendment to Section 11
|
The wording “[…]; Joint Representative of dievini/dievini Shareholders; consents and co-operation” is added to the heading “Notices” of Section 11 of the Shareholders’
Agreement; furthermore, Section 11.1 sentence 3 is restated and the new Sections 11.3 and 11.4 are added:
| 11 |
Notices; Joint Representative of dievini/dievini Shareholders;
consents and co-operation
|
| 11.1 |
[…] Declarations and other notices shall be sent by the Parties to the persons listed below under the respective contact details, who will act as authorised
service agents until such authorisation is revoked:
|
Kreditanstalt für Wiederaufbau:
Ms Elina Pradkhan
Palmengartenstr. 5-9
60325 Frankfurt am Main
Fax: +49 (0)69 7431-665703
E-mail: elina.pradkhan@kfw.de
with copy to (for information purposes only):
Linklaters LLP
Mr Ulrich H. Wolff
Taunusanlage 8
60329 Frankfurt am Main
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Fax: +49 (0)69 71003-333
E-mail: ulrich.wolff@linklaters.com
dievini Verwaltungs GmbH
for the attention of the managing directors
Johann-Jakob-Astor-Straße 57
69190 Walldorf
Fax: +49 (0)6227 8608 470
E-mail: contact@dievini.com
(the “Joint Representative
of dievini/dievini Shareholders”), with the Joint Representative of dievini/dievini Shareholders acting as the sole authorised service agent for any and all of the persons listed above,
each with copy to (for information purposes only):
Prof Dr Christof Hettich
c/o RITTERSHAUS Rechtsanwälte Partnerschaftsgesellschaft mbB
Harrlachweg 4
68163 Mannheim
Fax: +49 (0)621 4256 250
E-mail: christof.hettich@rittershaus.net
[…]
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The Parties shall at any time use their best efforts to seek to implement and achieve the objectives of this
Agreement, shall support each other in doing so and shall keep each other adequately informed.
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| 7 |
Amendment to Section 13.2
|
Section 13.2 of the Shareholders’ Agreement is supplemented as follows:
| 13.2 |
[…] If and to the extent it is provided under this Agreement that the acquirer shall accede to this Agreement or is intended to submit to the obligations of Dievini or a Dievini Shareholder with respect to the Restricted Shares and/or Unrestricted dievini Shares disposed of and to assume the rights existing hereunder, in particular in the cases set out in Sections 5.3 and 6.2
of this Agreement, the Parties and in particular the Disponor shall procure that the acquirer shall validly enter into an accession agreement in the form of Annex 1 to
this Agreement. From the date of accession, the acquirer shall be included in the term “Party”. Each Party undertakes to make and receive any declaration and take any measure to validly bring about such accession. If the requirements have been
met, each Party shall give its consent, by signing the accession agreement, without undue delay (unverzüglich) – but not later than within fifteen (15) banking days – after receipt (by (i) the persons named from time to time in Section 11.1 and (ii) in any case by Ms Elina Pradkhan (Elina.Pradkhan@kfw.de), Ms Julia
Klingen (Julia.Klingen@kfw.de) and Mr Ulrich Wolff (ulrich.wolff@linklaters.com)) of the complete accession agreement validly signed by the acquirer including any documents required as proof referred to therein. If the accession agreement is not signed by all Parties within the aforementioned period, the accession
of the relevant acquirer to this Agreement shall be deemed to have been validly taken effect as between all Parties.
|
The first paragraph of this Section 13.2 shall apply mutatis mutandis to Disposals by the Federal Investor pursuant to Section 5.4, in which case the accession agreement shall be amended in such a way that the acquirer assumes and submits to the Federal Investor’s rights and obligations rather than the
rights and obligations of dievini or the dievini Shareholders with respect to the Restricted
Shares disposed of by the Federal Investor.
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| 8 |
Final provisions
|
The other provisions of the Shareholders’ Agreement remain unchanged and continue to apply, but they are to be construed as amended by this 2nd
Supplement. The definitions and final provisions set out in the Shareholders’ Agreement apply to this 2nd Supplement mutatis mutandis.
Walldorf, ……………..….……
|
/s/ Dietmar Hopp
|
|
|
Dietmar Hopp
|
|
Frankfurt, ……………………
KfW
|
/s/ Jan Klasen
|
|
/s/ Elina Pradkhan
|
|
Dr. Jan Klasen
|
Dr Elina Pradkhan
|
Walldorf, ……………………….
dievini Hopp BioTech holding GmbH & Co. KG represented by
dievini Verwaltungs GmbH, the latter represented by:
|
/s/ Dietmar Hopp
|
/s/ Christof Hettich
|
|
|
Dietmar Hopp
|
Prof Dr Christof Hettich
|
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St. Leon-Rot, ……………………….
DH-LT Investments GmbH
|
/s/ Dietmar Hopp
|
|
|
Dietmar Hopp
|
|
Annex 1 Form of accession agreement
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Annex 1
Accession agreement to the Shareholders’ Agreement
regarding CureVac N.V.
This accession agreement (the “Agreement”) is entered into on [●] between:
| (1) |
KfW, Palmengartenstr. 5-9, 60325 Frankfurt am Main (the “Existing Party 1”);
|
| (2) |
dievini Hopp BioTech holding GmbH & Co. KG, represented by its general partner (Komplementärin) dievini Verwaltungs GmbH, Johann-Jakob-Astor-Str. 57,
69190 Walldorf (the “Existing Party 2”);
|
| (3) |
Mr Dietmar Hopp, Johann-Jakob-Astor-Str. 57, 69190 Walldorf (the “Existing Party 3”);
|
| (4) |
DH-LT Investments GmbH, Opelstraße 28, 68789 St. Leon-Rot (the “Existing Party 4”);
|
| (5) |
[...] [Other existing Parties to the Shareholders’ Agreement]
|
(the Parties referred to in (1) to ([●]), together the “Existing Parties”)
and
| (6) |
[New Shareholder] (the “New Shareholder”, and together with the Existing Parties, the “Parties”).
|
Preamble
| (A) |
The Existing Parties are Parties to a Shareholders’ Agreement in relation to their portfolio of shares in CureVac N.V. (the “Company”) dated 16 June 2020, as amended from time to time and most
recently on [●] (the “Shareholders’ Agreement”), which stipulates, in particular, the exercise of voting rights and restrictions on the Disposal of Shares in the Company.
|
| (B) |
The New Shareholder is interested in acquiring [[●] Restricted Shares/[●] Unrestricted dievini Shares ]) in the Company (the “Shares”) from [●] (the “Disponor”) on [●] (the “Acquisition Date”). Following completion of the Disposal, [a total of [●] Restricted Shares/[●] Unrestricted dievini Shares] will remain with
[dievini/the dievini Shareholders] / [a total of [●] Restricted Shares] will remain with KfW [and pursuant to Section 5.4 of the Shareholders’ Agreement with the Bund or the Bund’s affiliates (verbundene
Unternehmen) within the meaning of Sections 15 et seq. AktG or any legal entities controlled by it, in particular any public-law corporations sponsored by the Bund].
|
| (C) |
Prior to acquiring the Shares, the New Shareholder must accede as a Party to the Shareholders’ Agreement pursuant to Section [13.2] of the Shareholders’ Agreement.
|
Now therefore, the Parties agree as follows:
| 1 |
DEFINITIONS AND INTERPRETATION
|
| 1.1 |
Definitions
|
Unless otherwise defined herein and unless the context requires otherwise, terms defined in the Shareholders’ Agreement will have the same meanings in this Agreement.
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| 1.2 |
Headings
|
Headings will not be used for interpreting this Agreement.
| 2 |
Only in the case of dievini Shareholders: CONFIRMATION OF CAPACITY AS DIEVINI SHAREHOLDER
|
The Disponor and the New Shareholder hereby expressly confirm that the New Shareholder is a dievini Shareholder within the meaning of the Shareholders’ Agreement, being [insert one of the options and capacities specified in Section 5.3] pursuant to Section [insert corresponding Section out of Sections 5.3.1 to 5.3.4] of the Shareholders’ Agreement. As proof
of his/her capacity as dievini Shareholder pursuant to Section 5.3 of the Shareholders’ Agreement, the following documents are annexed to this accession agreement:
| (i) |
In case of an accession pursuant to Section 5.3.1 or 5.3.4 of the Shareholders’ Agreement: (i) extract from the register and/or other documents which demonstrate the New Shareholder’s status (under corporate law) and (ii) lists or
registers of partners, shareholders or members (Gesellschafterlisten oder Aktionärs- oder Mitgliederregister) or other equivalent lists or registers in other relevant jurisdictions and, to the extent
relevant, further (register) documents which conclusively show the capacity as affiliate, the individuals being ultimate beneficiaries or the relevant level of control exerted by the persons authorised to do so pursuant to the Shareholders’
Agreement.
|
| (ii) |
In case of an accession pursuant to Section 5.3.2 or 5.3.3 of the Shareholders’ Agreement, a copy of the New Shareholder’s identity card or passport and, if the New Shareholder’s capacity as dievini Shareholders cannot be conclusively
determined from such copy of the identity card or passport, further documents which conclusively show such New Shareholder’s capacity as relative (Angehörigeneigenschaft) within the meaning of Section
15 AO.
|
| 3 |
OBLIGATIONS AND RIGHTS OF THE NEW SHAREHOLDER
|
| 3.1 |
Accession to the Shareholders’ Agreement
|
The New Shareholder hereby fully accedes as a Party to the Shareholders’ Agreement as per the Acquisition Date and undertakes to be bound, in the same way as the Disponor, by the Shareholders’
Agreement with respect to the special binding characteristics and obligations existing with respect to the Shares disposed of to it (or him). In this respect, the New Shareholder will be subject, to the same extent as the Disponor, to any rights and
obligations to which the Disponor is subject under the Shareholders’ Agreement.
| 3.2 |
Assumption of obligations
|
Pursuant to Section [6.2.3] of the Shareholders’ Agreement the Disponor has determined the Shares to be [Restricted Shares/Unrestricted dievini Shares]. The New Shareholder undertakes to comply with
all restrictions and obligations of the Disponor in relation to the [Restricted Shares/Unrestricted dievini Shares ] which are provided for in the Shareholders’ Agreement in such a way as if the transfer had not taken place and as if the Disponor
continued to hold these Shares.
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The New Shareholder will perform these obligations in full and without undue delay (unverzüglich), as if it (or he) had been a Party to the Shareholders’
Agreement, on the Disponor’s side and in the same way as the Disponor, right from the outset. Insofar as there are obligations that can only be performed in full jointly with the Disponor, the New Shareholder and the Disponor, in deviation from
Section 13.5 of the Shareholders’ Agreement, will be jointly and severally liable (gesamtschuldnerisch haften) for performance and success.
| 3.3 |
Transfer restrictions
|
In particular, the New Shareholder will only dispose of the Shares to third parties subject to the condition that the acquirer(s) has (or have) in each case undertaken to be bound by the
Shareholders’ Agreement, with respect to the special binding characteristics and obligations existing with respect to the Shares disposed of to such acquirer(s), by entering into an agreement equivalent to this Agreement prior to, and with effect
from, the acquisition.
| 3.4 |
Rights of the New Shareholder
|
The Existing Parties and the New Shareholder are in agreement that, as from the Acquisition Date, the New Shareholder will have all rights under or in connection with the Shareholders’ Agreement
which the Disponor had in relation to the Shares under the Shareholders’ Agreement, as if the New Shareholder had been a Party to the Shareholders’ Agreement right from the outset.
| 4 |
Only in the case of dievini Shareholders: POWER OF ATTORNEY
|
The New Shareholder hereby authorizes dievini Verwaltungs GmbH having its seat in Walldorf, registered in the commercial register (Handelsregister) of the
Local Court (Amtsgericht) of Mannheim under HRB 701940, under a power of attorney for the benefit the Federal Investor as a third party beneficiary, to make and receive any declarations required to be made and
received, and to take any measures required to be taken, under the Shareholders’ Agreement on the New Shareholder’s behalf.
| 5 |
NOTICES
|
All declarations and other notices under or in connection with this Agreement must be made in writing. This requirement will generally be met if documents are sent by post or courier, fax or e-mail
(text form, Section 126b BGB), unless otherwise stipulated herein in individual cases. Declarations and other notices for the New Shareholder are to be sent by the Parties [for dievini Shareholders as New
Shareholders: to dievini Verwaltungs GmbH under the contact details set out in the Shareholders’ Agreement, which will act as authorised service agent until such authorisation is revoked.] [for any other New
Shareholders: to the persons listed below under the respective contact details, who will act as authorised service agents until such authorisation is revoked:
Address: [●]
E-mail: [●]
With copy to: [●]]
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| 6 |
ASSIGNMENT AND TRANSFER
|
Except in the cases expressly permitted under the Shareholders’ Agreement, it will only be possible and permitted to assign or transfer – either in whole or in part – any right, beneficial interest
or obligation subject to having previously obtained the written consent of all Parties to this Agreement in each case.
| 7 |
THIRD-PARTY RIGHT OWNERS
|
This Agreement will not establish any rights of third parties, or rights for the benefit of, or with protective effect for the benefit of, third parties.
| 8 |
MISCELLANEOUS
|
Subject to any provisions to the contrary in this Agreement, the provisions of Section 13 of the Shareholders’ Agreement will apply mutatis mutandis to this
Agreement.
[execution pages will follow]
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KfW
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
Place, date:
|
Place, date:
|
dievini Hopp BioTech holding GmbH & Co. KG, represented by dievini Verwaltungs GmbH, which, in turn, is represented by:
|
Name: Dietmar Hopp
|
Name: Prof Dr Christof Hettich
|
|
Title:
|
Title:
|
|
Place, date:
|
Place, date:
|
Dietmar Hopp
|
Name: Dietmar Hopp
|
|
Title:
|
|
Place, date:
|
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Execution Version
DH-LT Investments GmbH
|
Name: Dietmar Hopp
|
|
Title:
|
|
Place, date:
|
[Other Existing Party]
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
Date:
|
Date:
|
[New Shareholder]
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
Date:
|
Date:
|
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Execution Version
Annex
Documents to be submitted pursuant to Section 2 –
Confirmation of capacity as dievini Shareholders
Page 23 of 23