The following table sets out the name of each person other than a member of our Management Board or the Supervisory Board1 who, as at the date of this Prospectus and as far as we are aware of, has a direct or indirect interest in our share capital, which interest is to be disclosed under Dutch law . The information derives from the register of the Financial Supervision Act maintained by the AFM as per the date of this Prospectus .
Shares
name % of share
capital
Capital and voting interest
manner of disposal number of voting rights and Shares Johnson & Johnson 18% Real Indirectly through JHC
Nederland B .V .
14,626,984 A . van Herk 8 .6% Real Indirectly through
Onroerend Goed Beheer en Beleggings maat- schappij A . van Herk B .V .
6,986,185
Aviva plc (1) 5 .92% Real Indirectly though Delta Lloyd Levensverzekering N .V ., Delta Lloyd
Schadeverzekering N .V . and Delta Lloyd Nederland Fonds N .V .
3,514,130
(1) According to latest filing on 1 November 2006.
Except as disclosed above, we are not aware of any person who, as of the date of this Prospectus, directly or indirectly, has a beneficial interest in 5% or more of our Shares. Our major shareholders have the same voting rights as the other holders of the Shares .
To the best of our knowledge, we are not directly or indirectly owned or controlled by any other corporation, foreign government or other person or entity .
Equity Purchase Agreement, Shareholder Agreement and Collaboration Agreements
On 28 September 2009, we and Investor entered into an equity purchase agreement (the Equity Purchase agreement), a registration rights agreement (the registration rights agreement), the Shareholder Agreement and the Collaboration Agreements .
Pursuant to the Equity Purchase Agreement Investor acquired the New Shares against the Issue Price . The Issuance has resulted in a dilution to our Shareholders’ (other than Investor) proportionate ownership and voting interest in the Company of approximately 18% . The Equity Purchase Agreement contains customary representations and warranties . Pursuant to the registration rights agreement Investor was granted certain customary rights regarding the registration of the New Shares under the US Securities Exchange Act 1934, as amended .
For further details on the Collaboration Agreements, see Chapter 10 “Business Overview” .
1 Some members of our Management Board and Supervisory Board own Shares and options to acquire Shares . We describe their Share and option holdings in more detail in Chapter 11 “Management Board, Supervisory Board and Employees” .
The following is a summary of certain important elements of the Shareholder Agreement . • Lock-Up
For a period of three months following the Issue Date, the Investor shall not be permitted to, directly or indirectly, dispose of all or part of the New Shares (or ADSs acquired in exchange for New Shares) . Customary exceptions apply to the lock-up .
The lock-up period will terminate immediately in the event that a third party publicly announces a public offer or acquires 18% or more of the Shares (including Shares represented by ADSs), in each case, without the consent or recommendation of the Management Board or Supervisory Board, the Company intends to enter into or announces publicly that it is considering a transaction involving the acquisition by a third party of more than 30% of our shares or assets, or the Collaboration Agreements are terminated (other than as a result of a material breach by Investor) .
• Standstill
For a period of three years from the Issue Date, the Investor and its affiliates may not, without our prior approval, purchase or acquire any Shares or securities convertible into, or exercisable or exchangeable for, or otherwise giving the holder thereof any rights in respect of, Shares (including Shares represented by ADSs) or commence a public offer for our Shares, if, in either case, the consummation of such purchase or acquisition or public offer would result in the Investor and its affiliates in the aggregate beneficially owning (assuming the exercise, exchange or conversion of all our securities held by them), directly or indirectly, more than 18% of the issued and outstanding Shares (including Shares represented by ADSs) . Customary exceptions apply to the standstill .
• Anti-Dilution
If, within nine months from the Issue Date, we experience the consummation of a negotiated transaction for a change of control of Crucell at a price per share below the Issue Price Investor shall be entitled to receive a cash payment equal to the difference between the Issue Price and such lower price multiplied by the number of Shares acquired upon consummation of such transaction (not to exceed the number of 14,626,984 New Shares as acquired by Investor on the Issue Date) .
This amount must be paid to Investor within 5 business days after the consummation of the relevant transaction by the counterparty to the change of control transaction or where it concerns a public offer or sale of all or substantially all of our assets by us .
• Drag Along Right
If we receive a bona fide public offer from a third party and (i) our Management Board and Supervisory Board have endorsed, approved, recommended or otherwise supported such public offer, (ii) the holders of at least 70% of the issued and outstanding Shares (including Shares represented by ADSs) (including those held by Investor and/or its Affiliates) have tendered their shares to the third party in connection with such public offer and (iii) the Investor and/or any of its Affiliates do not have a bona fide matching (x) counter public offer to our Shareholders or (y) other proposal to us involving the acquisition by a third party of more than 30% of our shares or assets pending, the Investor and its affiliates shall agree to tender and sell all their Shares in such public offer . Investor shall in such event, if applicable, also have the right to receive payment of the amount as described under “Anti-Dilution Right Investor” in the preceding paragraph .
• Pre-Emptive Right
If we at any time propose to issue any Shares or any securities convertible into, or exercisable or exchangeable for, or otherwise giving the holder thereof any rights in respect of, Shares (including Shares represented by ADSs), Investor has the right to purchase in such offer such number of shares to maintain its proportionate ownership interest in the Company on a fully diluted basis (disregarding equity based awards under the ESOP) (subject to customary exceptions) . The Investor’s pre-emptive right shall expire and no longer be available upon the Investor (together with its affiliates) ceasing to beneficially own at least 12% of our issued and outstanding Shares (including Shares represented by ADSs) .
• Approval Rights
We may not without the approval of the Investor: (i) commence a tender offer or repurchase of Shares if the consummation of such tender offer or repurchase would result in the Investor holding more than 18% of the issued and outstanding Shares (including Shares represented by ADSs), (ii) grant options or other equity awards in excess of the amounts authorized under the ESOP, or (iii) amend the Articles of Association in a manner that would create a new class of securities, or make the current rights of the General Meeting subject to proposals of the Management Board and/or Supervisory Board or subject to other limitations . The Investor’s approval right shall expire and no longer be available upon the Investor (together with its affiliates) ceasing to beneficially own at least 10% of our issued and outstanding Shares (including Shares represented by ADSs) .
rELaTED ParTy TranSaCTIOnS
13
rel
13.1 ated party transactions within the Group
We have related party transactions and balances with joint venture partners, Investor, associates and directors and executive officers. We conduct related party transactions at arm’s length and subject to terms comparable to market conditions . There are no related party transactions outside the normal course of business .
The following table provides the total value of transactions which have been entered into with related parties, excluding directors and executive officers, for the relevant financial year.
In thousands of euro Income and expenses for the year ended 31 December
Balance outstanding as at 31 December
Related party 2008 2007 2006 2008 2007
Sales of goods and services
Pevion Biotech AG - 364 251 - - Kenta Biotech AG 130 223 168 - - ADImmune Corp . 3,262 2,271 - 4,495 6,724 Expenses Percivia (4,081) (4,247) (1,227) (1,023) (332) Avv Falaguerra (34) (17) (12) (43) (6) Kenta Biotech AG - - (60) - -
Mr . Falaguerra, the chairman of the executive board of our Italian subsidiary Berna Biotech Italia Srl, is related to Avv. Falaguerra, an Italian firm that provided taxation services to the Italian subsidiary. This arrangement has been discontinued .
In addition to the information contained in the table above we have entered into transactions with (affiliates of) Investor in the ordinary course of business.
Terms and conditions of transactions with related parties 13.2
The sales to and purchases from related parties are made at normal market prices . Outstanding balances at the year-end are unsecured, interest-free and settlement occurs in cash . There have been no guarantees provided by the Group or received in respect of any related party receivables or payables . For the period ended on 30 June 2009, the Group did not make any provision for doubtful debts relating to amounts owed by related parties (31 December 2008: nil). This assessment is undertaken each financial year through examining the financial position of the related party and the market in which the related party operates .
Transactions with members of the m
13.3 anagement Board, Supervisory Board and employees
We have no knowledge of any transactions with our Management Board members, Supervisory Board members and senior management, with the exception of the arrangements made regarding their remuneration (reference is made to Chapter 11 .4 “Management Board, Supervisory Board and Employees – Remuneration”) and with the exception of the loans to the members of the Management Board and senior management as set out hereunder .
to the persons listed below in connection with options granted to them on our Shares . These loans become payable at the time Shares received on exercise of the related options are sold or immediately if the employee ceases to work for us before this time . We fund payments due under loans granted prior to 30 July 2002, the date legislation was passed in the US prohibiting the granting of additional loans to company officers.
amounts in thousand euro Largest amount of loan outstanding since 1 January 2001 amount of loan outstanding at 31 December 2008 2008 interest rate in % name R .H .P . Brus 132 87 3 .5% J . Goudsmit 25 - 3 .5% Other Personnel 61 47 3 .5% 134 Transaction with Investor
13.4
We entered into the Equity Purchase Agreement, the Shareholder Agreement, the Registration Rights Agreement and the Collaboration Agreements with Investor (or its affiliates). See for further details on the Shareholder Agreement Chapter 12 “Major Shareholders” and for further details on the Collaboration Agreements Chapter 10 “Business Overview” .