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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 20-F
(Mark One)
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REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2023
OR
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to .
OR
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SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Date of event requiring this shell company report
Commission file number 001-34041
Evotec SE
(Exact name of Registrant as specified in its charter)
Not applicable
(Translation of Registrant’s name into English)
Federal Republic of Germany
(Jurisdiction of incorporation or organization)
Essener Bogen 7
22419 Hamburg
Germany
Tel: +49 40 560810
(Address of principal executive offices)
Dr. Christian Wojczewski
Essener Bogen 7
22419 Hamburg
Germany
Tel: +49 40 560810
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act.
Title of each class |
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Trading |
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Name of each exchange |
American Depositary Shares, each representing one-half of one ordinary share |
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EVO |
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The NASDAQ Global Select Market |
Ordinary shares, no par value per share* |
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— |
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The NASDAQ Global Select Market |
* Not for trading, but only in connection with the registration of the American Depositary Shares.
Securities registered or to be registered pursuant to Section 12(g) of the Act.
None.
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.
None.
(Title of Class)
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report.
The number of outstanding ordinary shares as of December 31, 2023 was 177,185,736.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.
☐Yes ☒ No
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
☐Yes ☒ No
Note – Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 from their obligations under those Sections.
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
☒Yes ☐ No
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
☒Yes ☐ No
Indicate by check mark whether the registrant is a large, accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large, accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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Emerging growth company |
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If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by checkmark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240. 10D-1(b). ☐
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
U.S. GAAP ☐ |
☒ International Financial Reporting Standards as issued by the International Accounting Standards Board |
☐ Other |
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.
☐ Item 17 ☐Item 18
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
☐ Yes ☒ No
Table of Contents
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Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds. |
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Item 16D. Exemptions from the Listing Standards for Audit Committees. |
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Item 16I. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections. |
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TRADEMARKS, SERVICE MARKS AND TRADE NAMES
Evotec, the Evotec SE logo, EVT , ScreenSeq, ScreenPep, PanHunter, Just, the Just logo, J.POD, J.HAL, J.HAL HUMANOID ANTIBODY LIBRARY, JP3, Aptuit, the Aptuit logo, Evotec INDiGO, Aptuit INDiGO, Cyprotex and other trademarks or service marks of Evotec appearing in this annual report are the property of the Company. Solely for convenience, some of the trademarks, service marks, logos and trade names referred to in this annual report are presented without the ®, ™ or SM symbols, but such references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights or the rights of the applicable licensors to these trademarks, service marks and trade names. This annual report contains additional trademarks, service marks and trade names of others. These trademarks, service marks and trade names may be the property of their respective owners. We do not intend our use or display of other companies’ trademarks, service marks, copyrights, or trade names to imply a relationship with, or endorsement or sponsorship of us by those companies.
PRESENTATION OF FINANCIAL INFORMATION
The consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”) and its interpretations as issued by the International Accounting Standards Board (“IASB”), as adopted by the European Union (“EU”) and additionally as issued by the IASB. Our financial information is presented in Euros. For the convenience of the reader, we have translated some of our financial information into U.S. dollars. Unless otherwise indicated, these translations for the financial information as of and for the years ended December 31, 2023, and 2022 were made at the rate of €1.00 to $1.1050 obtained from the European Central Bank on December 31, 2023. The exchange rate is based on a regular daily concentration procedure between central banks across Europe and worldwide, which normally takes place at 2:15 pm Central European Time. Such U.S. dollar amounts are not necessarily indicative of the amounts of U.S. dollars that could have been purchased upon exchange of Euros at the dates indicated. All references in this annual report to “$” mean U.S. dollars and all references to “€” mean Euros. Throughout this annual report, references to “ADSs” mean American Depositary Shares or ordinary shares represented by American Depositary Shares, as the case may be.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This annual report contains forward-looking statements concerning our business, operations and financial performance and condition, as well as our plans, objectives and expectations for our business operations and financial performance and condition. Many of the forward-looking statements contained in this annual report can be identified by the use of forward-looking words such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “potential,” “should,” “target,” “would” and other similar expressions that are predictions of or indicate future events and future trends, although not all forward-looking statements contain these identifying words.
Forward-looking statements are based on our management’s beliefs and assumptions and on information currently available to our management. Such statements are subject to risks and uncertainties, and actual results may differ materially from those expressed or implied in the forward-looking statements due to a variety of factors, including, but not limited to, those identified in the section titled “Risk Factors” in this annual report. The forward-looking statements in this annual report include, among others, statements regarding:
| ● | Our ability to innovate sufficiently and continually remain at the forefront of precision medicine, including with respect to our platform technologies and our investment into the discovery of new pipeline assets, such that we retain our existing customers, broaden, and deepen our customer relationships and gain new customers, |
| ● | Our ability to find suitable partners or agree on acceptable terms regarding our unpartnered pipeline assets, |
| ● | The ability and timing of our partners to develop successfully, conduct trials of, obtain regulatory approval for and commercialize our pipeline assets, |
| ● | Our ability to allocate resources properly, retain the business of our existing customers, and successfully manage the expansion of our company, including with respect to our investments through EVOequity, |
| ● | Whether we can obtain a positive return on our equity investments, |
1
| ● | The impact of any pandemic similar to the COVID-19 pandemic, epidemic or outbreak, on our business, financial condition, results of operations, cash flows and prospects, |
| ● | The Russia-Ukraine war and all its potential impacts such as significantly increasing energy prices and transport costs as well as supply bottlenecks and delays, growing risks of cyber-attacks, and risks of production interruptions at our sites, particularly because of restricted energy supplies. The impact on our results of operations and cash flows from period to period is affected by fluctuations in foreign exchange rates, |
| ● | Our ability to comply with the applicable laws and regulations, export and import controls, sanctions, embargoes, anti-corruption laws and anti-money-laundering laws and Sarbanes-Oxley Act (“SOX”), |
| ● | Our ability to secure our information technology systems and the data stored therein, and prevent and remediate cyber-security incidents, |
| ● | Our ability to obtain the substantial additional financing required to achieve our goals, |
| ● | Our ability to take advantage of R&D tax credits, grants, and tax loss carryforwards, and |
| ● | Our ability to obtain sufficiently and timely, maintain, protect, defend and/or enforce our intellectual property rights. |
The preceding list is not intended to be an exhaustive list of all our forward-looking statements. The forward-looking statements contained in this annual report speak only as of the date of this annual report, and unless otherwise required by law, we do not undertake any obligation to update them considering new information or future developments or to release publicly any revisions to these statements to reflect later events or circumstances or to reflect the occurrence of unanticipated events.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this annual report, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete. Our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of all potentially available relevant information. These statements are inherently uncertain, and investors are cautioned not to unduly rely upon these statements.
Summary of Risks Associated with our Business
Our business is subject to several risks which you should be aware of before making an investment decision. These risks are discussed more fully in the section of this annual report titled “Risk Factors”. These risks include, but are not limited to, the following:
| ● | Our business is subject to the significant and increasing challenges that face the pharmaceutical and biotechnology industries, |
| ● | Our business depends on our and our partners’ success in innovation and drug development, which is highly uncertain, |
| ● | Drug discovery and innovation are subject to significant risks and increasing challenges, |
| ● | Our operational business faces various performance-related risks, |
| ● | Our company intends to develop and expand, which may encounter difficulties in managing our development and expansion efforts, which could disrupt our operations, |
| ● | Our company may not realize a return on our equity investments, |
| ● | Our success depends on our ability to attract and retain senior management and key employees, including highly specialized scientific staff, |
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| ● | Our partners and we face intense competition in the biotechnology and pharmaceutical industries, |
| ● | The approval and sale of drug products are subject to extensive regulation, and accordingly our ability to generate revenue from our pipeline assets is uncertain, |
| ● | Even if any of our pipeline assets are commercialized, they may not be accepted by physicians, healthcare payors, patients, or the medical community in general, |
| ● | Our ability to comply with the applicable laws and regulations, export and import controls, sanctions, embargoes, anti-corruption laws, anti-money-laundering laws and SOX, |
| ● | Geopolitical uncertainties such as the Russia-Ukraine war, the Middle East conflict or an increasing escalation and expansion of the trade conflict between the USA and China with all its implications and effects - such as for example uncertainties in energy markets, supply bottlenecks, and increasing risks of cyber-attacks, |
| ● | Our ability to fulfill all national and international regulations related to sustainability and environmental, social and governance (ESG) expecting us to identify, prevent, mitigate and ideally eliminate the extent of potential negative impacts or violations throughout our business activities and value chain, |
| ● | Our efforts to obtain, maintain, protect, defend and/or enforce our intellectual property may be inadequate and our business could be adversely affected as a result, |
| ● | Our activities, and the activities of our customers, to comply with extensive government regulations to ensure patient health, and |
| ● | Our ability to accurately report our financial results or prevent fraud if we fail to maintain an effective system of internal control over financial reporting. |
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PART I
Item 1. Identity of Directors, Senior Management and Advisers
A. Directors and senior management.
Not applicable.
B. Advisers.
Not applicable.
C. Auditors.
Not applicable.
Item 2. Offer Statistics and Expected Timetable
A. Offer statistics.
Not applicable.
B. Method and expected timetable.
Not applicable.
Item 3. Key Information
A. [Reserved]
B. Capitalization and indebtedness.
Not applicable.
C. Reasons for the offer and use of proceeds.
Not applicable.
D. Risk factors.
Risk Management
Our business faces significant risks and uncertainties. You should carefully consider all of the information set forth in this annual report and in other documents we file with, or furnish to, the U.S. Securities and Exchange Commission (“SEC”), including the following risk factors, before deciding to invest in or to maintain an investment in our securities. Our business, as well as our reputation, financial condition, results of operations, and share price, could be materially adversely affected by any of these risks, as well as other risks and uncertainties not currently known to us or not currently considered material.
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Strategic risks
Failure to achieve strategic targets.
Currently, we have more than 5,000 employees and, in connection with the growth of business and advancement of our pipeline, we expect to increase the number of employees and the scale of our operations. To manage our anticipated development and expansion, we must continue to implement and improve our managerial, operational, legal, compliance and financial systems, and continue to recruit and train additional qualified personnel. We also routinely pursue new service offerings, such as our expansion into Contract Research Organization (“CRO”) services including, but not limited to, protocol preparation and review and regulatory preparation and submission. Our ability to sustain growth and secure new business is dependent on the biopharma industry’s willingness and ability to invest into R&D and continued outsourcing. Our business could be significantly impacted by any decline in R&D spending or outsourcing activities in the biopharma industry. We are actively developing pipeline assets in many therapeutic areas and across a wide range of diseases. Successfully developing candidates for, and fully understanding the regulatory and manufacturing pathways to, all these therapeutic areas and diseases requires a significant depth of talent and experience, resources, and corporate processes. In case of limited resources, we may not be able to effectively manage this execution and the expansion of our operations or recruit and train additional qualified personnel. This may result in weaknesses in our infrastructure, give rise to operational mistakes, legal or regulatory compliance failures, loss of business opportunities, loss of employees and reduced productivity among remaining employees. For example, by expanding Contract Development and Manufacturing Organization (“CDMO”) services, we may become liable for acts or omissions made. Additionally, we consistently invest in and develop new cutting-edge technology platforms and services or products to enhance the competitiveness of our business. However, the failure to create demand for these new offerings could significantly impact operations and cash flows, thereby having an adverse effect on our business strategy. As a specific example, J.POD2 development presumes matching demand and obtaining matching business opportunities. Should these not be realized or take up be delayed, we would need to absorb the fixed costs. In the same stream, delay of the completion of JPOD2 would impact the anticipated financials. Moreover, if our new service offerings or platforms fail to generate the anticipated market demand, we might not receive the desired return on investment, putting forecasted revenue and profitability at risk. The physical expansion of our operations may lead to significant costs and may divert financial resources from other projects. As a part of our routine business operations, we collect, analyze, and store considerable volumes of data related to the activities conducted for our customers. The security of these data systems is crucial, as unauthorized third parties might attempt to gain access to this data for the purpose of data theft, disruption of operation, or financial gain. We have encountered and expect to face various threats and breaches to our data and systems, as the frequency and complexity of these threats continue to grow. The contractual agreements we have in place with customers typically include clauses on confidentiality of customer information. The confidentiality of such information could be compromised during such attempts, exposing us to substantial risks. This could lead to significant consequences including termination of contracts, harm to customer relationships, damage to our reputation, and legal lawsuits. These events could not only have a material adverse effect on our operating and financial performance, but could also jeopardize the overall strategic objectives and the achievement of our business goals.
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Risks to success in drug discovery and development
We seek to serve as a source of innovative drug candidates to potential partners. We are advancing several active discovery and early-stage development assets that we intend to license to partners for clinical development and commercialization. Some of our assets are not partnered, and if we cannot find a suitable partner or agree on acceptable terms with a partner, we may not be able to generate a return on such assets. Furthermore, the amount of our return on the investments in our own pipeline assets depends on many factors, such as the degree of innovation and strength of our intellectual property position, as well as on external factors outside of our control. For example, our ability to generate a return on the investments in our pipeline assets depends, in significant part, on our partners’ R&D priorities and the market dynamics in each disease area. The market environment, demand and competitive landscape for our individual pipeline assets might change significantly over time as certain diseases become prevalent or other treatment options emerge, that have a better safety and efficacy profile or become more readily available, thereby reducing the market opportunities for our pipeline assets. As a result, the commercial objectives of our partners with respect to individual assets and the financial proceeds we may receive from partnering individual assets are highly uncertain, subject to factors outside of our control and could deviate significantly from our projections.Furthermore, a changing market environment could lead to strategic reprioritization and discontinuation of some projects or partnerships by our partners, transferring the risk of further development and re-partnering of these assets to us. Failure to successfully re-partner these assets could lead to additional costs and loss of potential revenue streams and profitability forecasted from these assets. Whether we are eligible to receive milestone and royalty payments is subject to our partners’ success in preclinical and clinical testing. The outcome of respective tests and trials is inherently uncertain, and we neither control nor drive the development process once our partners enter the clinical trial phase. Our partners also may experience unforeseen challenges during, or because of, any clinical trial that they conduct. This could significantly delay or even prevent successful product development and subsequent market approval. Furthermore, there is a risk that milestone and potential license payments on future drug sales by partners will be lower than anticipated in our strategic planning. This could thus lead to impairments of underlying individual intangible assets, affecting our liquidity and financial position and jeopardizing the corresponding strategic target in the medium to long term.
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Failure of mergers and acquisitions
We have strategic growth targets which we intend to achieve through a combination of organic growth and the acquisition of complementary service and research capacities. We might intend in the future, as part of our expansion efforts, to undertake additional strategic acquisitions; however, doing so may not realize the intended advantages of such acquisitions and investments, if we are unsuccessful in ascertaining or evaluating target businesses. For instance, our assumptions may prove to be incorrect, which could cause us to fail to realize the anticipated benefits of these transactions. If we fail to realize the expected benefits from acquisitions or investments, whether because of e.g., unidentified risks or liabilities or integration difficulties, our business, results of operations and financial condition could be adversely affected (e.g., impairments on goodwill or intangible assets). Moreover, we may not be able to locate suitable acquisition or partnership opportunities. Following an acquisition, we may not be able to successfully integrate the acquired business or operate the acquired business profitably. This is a risk that pertains to the existing setup of our company which included several acquisitions over the previous years. We continue to require investment and focus in order to continue to integrate them and obtain the lift through synergies. This can create a stress, especially on enabling functions. Not obtaining the synergies and optimal integration means that the full value anticipated upon purchase may not be realized. In addition, integration efforts often take a significant amount of time, place a significant strain on managerial, operational, and financial resources, might result in the loss of key personnel and can prove to be more difficult or expensive than predicted. The diversion of the management’s attention and any delay or difficulties encountered in connection with any future acquisitions could result in the disruption of our ongoing business or inconsistencies in standards and controls that could negatively affect our operations, including the ability to maintain third-party relationships. If we encounter difficulties integrating newly acquired assets or operations with our platform, our business, and results of operations as a group may be adversely impacted. Moreover, if we invest in new modalities and technologies, it may not be successful in integrating them into our platform offerings or generating customer or partner demand for them, which could result in failure to generate a return on our investment. Some of the businesses we may seek to acquire may be marginally profitable or unprofitable. For these businesses to achieve acceptable levels of profitability, we may need to improve our management, operations, products and/or market penetration. We may not be successful in this regard, and it may encounter other difficulties in integrating acquired businesses into our existing operations. Further, if we undertake acquisitions, it may utilize our cash, issue dilutive securities, assume or incur debt obligations, incur large one-time expenses, and acquire intangible assets that could result in significant future amortization expense. Further, as part of our EVOequity model, from time to time we invest in start-up companies and/or early-development-stage technology. In evaluating these opportunities, we follow an evaluation process that considers factors such as potential financial returns, new expertise in emerging drug discovery and business benefits. Despite our best efforts to calculate potential return and risk, some, or all the companies we invest in may be unprofitable at the time of, and subsequent to, our investment. We have incurred and may continue to incur losses from these investments, including the potential for future impairment charges on the investments, and the anticipated benefits of the technology and business relationships may be less than expected. We therefore strive to ensure the proper adjustment and smooth integration of the new companies’ technologies, cultures, systems and processes and act as ONE Evotec. Based on the experience of past acquisitions, we make use of all necessary resources and departments to ensure a smooth integration process.
Market risks
Political risks
Difficult political conditions are currently prevailing in various parts of the world. While the health risks posed by the coronavirus have been significantly reduced due to increasing population immunity, geopolitical risks are currently rising, particularly in connection with Russia’s war in Ukraine and the Middle East conflict, as well as various other swelling conflicts elsewhere. The direct influence of war and indirect influences due to significant sanctions could have a negative impact on our businesses. For example, an expansion of the conflict beyond the borders of Ukraine would have considerable global consequences. The effects of the war are unpredictable and have the potential to continue to have a significant impact on the markets and financial markets, for example by leading to high currency volatility, inflation and an economic slowdown or even recession. The war-related energy crisis in particular, with all its implications, will be strongly influenced by political decisions in the future.
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An increasing escalation and expansion of the trade conflict between the USA and China could have a significant direct and indirect negative impact on our business. For example, tariffs on our customers’ pharmaceutical products or active pharmaceutical ingredients could be increased or unstable conditions on the global markets could lead to delays in the market launch of our partners’ new medicines or make it more difficult for our partners and customers to supply patients globally. These effects mean that our customers and partners may be under increased cost, sales and margin pressure and may postpone, terminate or reduce the scope of strategic projects and new projects with us. We maintain a close partnership and exchange with all our customers and partners in order to also monitor the financial situation and liquidity of these third parties. Irrespective of this, there is a risk that some of them may no longer be able to pay their invoices on time in future or may even become insolvent.
Although we include geopolitical developments and forecasts in our planning for future orders, sales and costs, there is a risk that such forecasts or outlooks may prove to be incorrect. Unforeseeable effects in world trade and global economic policy can therefore adversely affect our financial position and jeopardize the corresponding strategic target in the medium to long term.
Commercial risk from out-licensing and licensed products
We depend in part on out-licensing arrangements for late-stage development, marketing, and commercialization of our pipeline assets. Dependence on out-licensing arrangements subjects us to several risks, including the risk that we have limited control over the amount and timing of resources that our licensees devote to pipeline assets, that our licensees may experience financial difficulties or that our licensees may fail to secure adequate commercial supplies of pipeline assets upon marketing approval. Moreover, we face the risk that our future revenues depend heavily on the efforts of our licensees and that business combinations or significant changes in a licensee’s business strategy may adversely affect the licensee’s willingness or ability to complete the development, marketing and/or commercialization of the relevant pipeline assets. Finally, a licensee could move forward with a competing product candidate developed either independently or in partnership with others, including our competitors.
If we or any of our licensees breach or terminate their agreements with us if any of our licensees otherwise fail to conduct their development and commercialization activities in a timely manner or if there is a dispute about their obligations, we may need to seek other licensees, or we may have to develop our own internal sales and marketing capability for our pipeline assets. Our dependence on our licensees’ experience and the rights of our licensees could limit our flexibility in considering alternative out-licensing arrangements for our pipeline assets. Any failure to successfully develop these arrangements or failure by our licensees to successfully develop or commercialize any of our pipeline assets in a competitive and timely manner will have a material adverse effect on the commercialization of our pipeline assets.
Competitors and disruptive market participants
The biotechnology and pharmaceutical industries have grown rapidly in recent year, are intensely competitive and subject to rapid and significant technological change. As a result, we are closely monitoring the competitive situation and the competitive environment. Our mission is to discover best and first-in-class medicines for a broad range of difficult-to-treat diseases in collaboration with our partners. To that end, we have built a comprehensive suite of fully integrated, next-generation technology platforms that we believe will transform the way new drugs are discovered. By leveraging the advanced capabilities of our integrated platforms, we can provide solutions to our partners that enable significant improvements in the quality of new drugs while accelerating the drug discovery process and reducing the high cost of attrition often associated with traditional drug discovery processes. The industry in which we operate is highly competitive, with many players pursuing similar scientific approaches. If we do not continually offer our partners innovative and cutting-edge solutions and remain at the forefront of precision medicine, our business may be materially and adversely affected. Moreover, our business operations are subject to challenges because of industry pressures. The downward pressure on healthcare costs, particularly on prescription drugs, has intensified and our partners are impacted accordingly. As our business is dependent on the continued health and growth of the pharmaceutical and biological industry, should the industry contract due to pricing pressure, our business may be materially and adversely affected.
8
In the event competitors introduce more superior offerings, it could adversely impact our effect positioning, thereby impact our revenues and financial conditions, and ultimately, our overall business strategy if Evotec´s current customers or customer targets decide to continue working with one of our competitors. The risk is all the higher as it would affect our top customers. 35% of our revenue in 2023 was generated with 3 customers and 102 customer alliances generated revenue in 2023 of more than € 1.0m. We face intensifying competition from Far East and Eastern European CROs, which present a compelling alternative for cost-conscious customers. This heightened competition poses a substantial challenge for us as this could impact our market share. The growing emphasis on quality and expanding geographic presence poses a significant threat to us as they eat into our market share with their cost-sensitive offering. The growing presence of pharmaceutical companies into the biotech services space also increases the outsourcing options for biotech companies, heightening the risk of losing customers to these established players. Additionally, the emergence of disruptive AI/ML offered by a new breed of competitors, poses a growing competitive threat in the drug discovery services space. These companies are increasingly competing with drug discovery service companies for deals and partnerships with big pharma companies. There is a risk that these companies could improve their wet lab capabilities, becoming more competitive in the drug discovery space, intensifying competition.
In addition, our drug discovery and development efforts may target diseases and conditions for which there are existing therapies or therapies that are being developed by market players, who may have e.g., greater resources or superior manufacturing capabilities than we do. Furthermore, any drug products resulting from our research and development (“R&D”) efforts might not be able to compete successfully with others’ existing or future products. These factors could increase competitive pressure on our pipeline products, increasing the uncertainty of future cash flows from these assets, ultimately impacting our financial position and overall business strategy.
Reasonable cost management, continued development of capacities and technologies, diversification of revenues as well as revenues from valuable, result-driven alliances are critical factors for us in maintaining a significant role in the world of drug discovery in the pharma and biotechnology sector.
Financial risks
Liquidity risk
Revenue fluctuations, expenditures, external events, and changes in the business environment might negatively impact our short-to-medium-term profitability and liquidity. Evotec participates in scientific projects with milestone character in order to benefit financially from high success or specific results. However, these are usually linked to the successful achievement of an important scientific result or regulatory event, so that the outcome is uncertain due to the nature of scientific research and development. Therefore, despite our best efforts, there is a risk that these milestones will not be reached or will be reached later than planned, which may have a negative effect on the planned liquidity and margin. Evotec may also be exposed to liquidity risks from long-term fixed-price contracts if the planned cash inflows in connection with these contracts are lower than expected and if cost increases (e.g. inflation) were not sufficiently factored in and negotiated when the contracts were concluded. As of December 31, 2023, we had €604.1 million in cash, cash equivalents and investments. However, our operating plan may change because of many factors currently unknown to us, and we may need to seek additional funds sooner than planned, through public or private equity or debt financings, government or other third-party funding, sales of assets, marketing and distribution arrangements, other partnerships and licensing arrangements, or a combination of these approaches. Even if we believe we have sufficient funds for our current or future operating plans, we may seek additional capital if market conditions are favorable or if we have specific strategic considerations. Our spending will vary based on new and ongoing development and corporate activities. At the end of 2022 we were able to secure € 150 million in additional financing from the EIB. In 2023, we drew €93.3 of this loan to finance its research. Overall, we believe, we have sufficient liquidity to meet liabilities when due, under both normal and stressed conditions, without incurring unacceptable losses or risking damage to our reputation. Our business and reported profitability are affected by fluctuations in foreign exchange rates mainly between the US dollar, Pound Sterling, and the Euro. In the course of 2023, we have reduced our currency exposure. On December 31, 2023, we hold 63% of our Liquidity in EUR reducing from 50% at the end of 2022.
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Currency risks
We manage currency risks via forwards, natural hedges, and other selective hedging instruments. Hedging transactions are entered into for future transactions that can be reliably anticipated based on our order book. Despite active currency management, exchange rate risk cannot be eliminated due to unpredictable volatility. As a result, our business may be affected by fluctuations in foreign exchange rates, which may have a significant impact on our results of operations and cash flows from period to period. Currency exchange movements also impact our reported liquidity in respect of translating liquid assets held in U.S. dollars (~30% of Evotec’s liquid assets) or pound sterling into Euros. Interest rate risks may arise from inevitable negative interest on investments of available cash after capital increases, financing, etc. The increase in interest rates affects the interest charges on our variable interest-bearing loans and leads to additional interest expenses. At the end of 2023, 15% of our loans have variable interest conditions. Additionally, we regularly maintain cash balances at third-party financial institutions in excess of applicable insurance limits and are therefore reliant on banks and other financial institutions to safeguard and allow ready access to the assets. If banks or financial institutions enter receivership or become insolvent in the future in response to financial conditions affecting the banking system and financial markets, our ability to access our existing cash, cash equivalents and investments may be threatened.
Legal/compliance risks
Litigation and contractual risks
We are exposed to risks from litigation and legislation. As a result, we are exposed to the potential risk that legal action, court rulings or out-of-court settlements may have adverse financial consequences. We are bound by numerous complex contracts with a low degree of standardization, in particular customer contracts. Contractual clauses that are flawed, contentious, or unfavorable for us may entail contractual risks like legal liability risks and financial risks. We have not recorded any judicial or material out-of-court settlements with customers in the past 10 years.
Regulatory risks
We and our pharmaceutical and biotechnology customers and partners are subject to extensive regulations by the European Medicines Agency (“EMA”), the FDA and similar regulatory authorities in other countries for the development, manufacturing, and commercializing of products for therapeutic or diagnostic use. Such regulations include but are not limited to, restrictions on testing on animals and humans, manufacturing, safety, efficacy, labeling, sale, advertising promotion and distribution of our or our partners’ products.
New laws and regulations to that we, our customers and partners are subject to may change in the future affecting the viability of market entry for new products developed by us or the ability to continue certain projects for our customers and partners that may consequently be terminated at an early stage.
Regulations related to sustainability and environmental, social and governance (“ESG”) issues have become increasingly important for companies in recent years and are subject to rapid and ongoing development. Due to the growing reporting requirements with the EU Taxonomy, Supply Chain Act and Corporate Sustainability Reporting Directive (“CSRD”), the scope of reporting is increasingly enormous. Combining the financial report and sustainability report from the financial year 2024 onwards increases the relevance of the information but is also associated with increased additional work due to more complex auditing requirements. This requires enhancing cooperation between internal functions and with that preparation and further provision of capacities within the company. The EU Taxonomy poses a challenge with the requirements for checking eligibility and alignment with the environmental objectives and disclosing financial KPIs. Specifically with the introduction of the CSRD, and with that the European Sustainability Reporting Standards (“ESRS”) that will be applicable for financial year 2024 ongoing and are replacing the currently applicable CSR-RUG demand in metrics and detailed information is rising. The information thus departs from a compilation of sustainability data to the fact that information requires more strategy and an impacts analysis as a base. The analysis of the impacts now forms the ground of the materiality and thus the material topics that must be reported for companies. This may lead to increased regulatory, social or other scrutiny on our part. We have to perform this impact assessment and materiality analysis in preparation for the introduction of the standards in 2024.
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We analyze our business activities, business relationships, products and services to determine whether they have a positive and/or negative impacts and the severity and irremediably of those impact on sustainability aspects like the environment, corporate governance, business ethics, respect for human rights or the development of human resources (inside-out perspective). Furthermore, the analysis of sustainability impacts on the course of business, the results or the situation of the company as opportunities and risks (outside-in perspective) must be included. Furthermore, national and international regulations expect us to identify, prevent, mitigate and ideally eliminate the extent of potential negative impacts or violations throughout our business activities and value chain. If we are not able to adequately meet our statutory reporting obligations and appropriately recognize and respond to the expectations of governments, society and investors with regard to sustainability aspects, we could potentially have to pay significant fines and suffer damage to our reputation. In particular, companies are increasingly being evaluated using their performance on sustainability issues by investors, customers, suppliers and financial institutions. In addition to our own disclosure obligations, compliance with sustainability aspects is assessed by a large number of organizations and published externally. In addition, sustainability compliance is an increasingly legal obligation for institutional and professional investors, so an inadequate ESG rating may negatively impact the investment decisions of these investors. If any of these events were to occur, it could have a material adverse effect on our business, financial condition, cash flows and results of operations, and the market value of our common stock could decline. Any failure on our part in this regard could also have a material adverse effect on our reputation and the achievement of our strategic objectives.
The German Supply Due Diligence Act was passed by the German Parliament in 2021 and is mandatory for us from 2024 onwards. This new law obliges us to respect human rights and the environment and requires us to implement legally defined due diligence obligations. One of the key elements of these due diligence obligations is the establishment of a risk management system. Such a risk management system is intended to identify, prevent or minimize risks of human rights violations and environmental damage. The due diligence obligations apply both to our own business activities and to the actions of our contractual partners and suppliers. If we fail to comply with the German Supply Chain Due Diligence Act or if supervisory authorities are of the opinion that we have not complied with our due diligence obligations in accordance with this law, this may lead to official enforcement measures or other administrative penalties and fines. This may interrupt, or delay our development activities and could have a material adverse effect on our business, financial condition, reputation and results of operations.
Product liability risks
It is possible that we will be responsible for potential product liability stemming from product research, development or manufacturing and may face an even greater risk if any drug candidate that we develop is commercialized. If we cannot successfully defend ourselves against claims that drug products we develop with our partners caused injuries, we could incur substantial liabilities. Regardless of the merit or eventual outcome of such claims, any liability claims may result in e.g., decreased demand for any drug product that we may develop with our partner, loss of revenues, significant time and costs to defend the related litigation, initiation of investigations by regulators and injury to our reputation and significant negative media attention. We are covered by liability insurance, but notwithstanding such coverage, our financial position or results could be negatively affected by product liability claims. On occasion, large judgments have been awarded in class action lawsuits based on drugs or medical treatments that had unanticipated adverse effects.
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Quality risks in manufacturing and R&D
Our business’ success hinges on fulfilling both our own and legal quality standards. Parts of our operations are subject to current Good Manufacturing Practice (“cGMP”), current Good Laboratory Practice (“cGLP”) and current Good Clinical Practice (“cGCP”) requirements. Regulatory authorities and our customers conduct scheduled periodic inspections or unscheduled (for cause) inspections of our facilities to monitor our Quality System and verify that we comply with regulatory requirements and with the terms of our quality agreements with our customers. Audit findings that can impact on patient’s safety, are classified as “critical” and may lead to a loss of certification with regulatory agencies or a loss of approved supplier status with our customers and a subsequent loss in revenues and in reputation. Our manufacturing facilities also require certification and validation activities to demonstrate that they operate as designed. In addition, our manufacturing and testing facilities are subject to regulatory inspections by the national competent authorities in EU member states (including Italian Medicines Agency (“AIFA”)), the Medicines and Healthcare products Regulatory Agency (“MHRA”) in the United Kingdom, the U.S. Food and Drug Administration (“FDA”), and other comparable regulatory authorities of other countries. If we are unable to reliably conduct the preclinical and clinical study and manufacture products in accordance with the regulatory requirements, we may not obtain or maintain the necessary authorizations. Further, our facilities may fail to pass regulatory inspections, which would cause significant delays and additional costs required to remediate any deficiencies identified by the regulatory authorities. In addition, any failure of quality in the product could cause significant delays and additional costs required to remediate any deficiencies. Any failure in quality which can cause damage to the patient may be subject to civil and criminal penalties. Any of these challenges could delay the completion of clinical trials, require bridging clinical trials or the repetition of one or more clinical trials, increase clinical trial costs, delay regulatory approval, impair commercialization efforts, increase our cost of goods, and have an adverse effect on our business, damage to reputation, financial condition, results of operations and growth prospects.
With reference to all activities performed in research or non-GMP development phases, a lack of quality can bring to generation of unreliable data, with consequent loss of time to repeat the experiments, increase of cost, loss of revenues and loss of reputation.
General Governance and compliance risks (fraud, corporate governance)
Evotec is mainly exposed to privacy breach and the potential risk of antitrust violations or fraud e.g., through price fixing, illicit gratuities and the acceptance of unauthorized invitations. Our employees are obliged to adhere to our Code of Conduct, which is applicable across the entire group. Compliance with internal company policies is paramount to our success and ensures a safe work environment for our employees and early detection of potential risks. It is essential for us to ensure that we in general and our employees individually conduct business in a legal, ethical and responsible manner. We are obliged to report any incidents we suspect of having breached the ethical guidelines laid out in our Code of Conduct to our supervisor or to our Compliance Officer. At the beginning of 2023, external investigations were initiated against the former Chief Executive Officer (“CEO”) personally due to his late reporting of directors’ dealings. We have established corresponding guidelines and processes and therefore assume that investigations will continue to be directed exclusively against the person concerned and not against us. We currently have no new information of the status of the external investigation. Our corporate Legal & Compliance department is in charge of compliance monitoring. Our routine activities include reporting to the Management Board and the Supervisory Board, and the development and implementation of certain compliance guidelines and trainings.
Risks of failing to maintain effective internal control over financial reporting as a U.S.-listed company.
We have identified material weaknesses in our internal control over financial reporting as of December 31, 2023. We are subject to requirements under the Sarbanes-Oxley Act of 2002, as amended (“Sarbanes-Oxley”), to perform system and process evaluation and testing of our internal control over financial reporting to allow management to assess the effectiveness of our internal controls. Management has identified certain material weaknesses in our internal control over financial reporting. As a result, management has concluded that, as of December 31, 2023, our internal control over financial reporting was not effective, as more fully described in Item 15.E of this annual report. Management has also accordingly concluded that our disclosure controls and procedures were not effective.
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Notwithstanding the material weaknesses, we confirm that our consolidated financial statements, as included in this annual report, fairly present, in all material respects, our consolidated financial condition as of December 31, 2023 and our consolidated results of operations and cash flows for the year ended December 31, 2023, in conformity with IFRS. Management has developed a remediation plan to address the material weaknesses, including enhancing the risk and control frameworks, which will build on the significant attention that management has devoted to controls to date. While we are taking steps to address these material weaknesses, which could require us to expend significant resources to correct the material weaknesses or deficiencies, any gaps or deficiencies in our internal control over financing reporting may result in us being unable to provide required financial information in a timely and reliable manner and/or incorrectly reporting financial information, which could reduce confidence in our published information, impact access to capital markets, impact the trading price of our securities or subject us to potential regulatory investigations and sanctions. On 24 April 2024, Evotec published and filed its fully audited Annual Report 2023 but was unable to file the 20-F for the year 2023 within the prescribed time period. The “Securities and Exchange Commission” was informed in time via Form 12b-25 on April 30, 2024 In addition, there can be no assurance that these measures will remediate the material weaknesses in our internal control over financial reporting or that additional material weaknesses in our internal control over financial reporting will not be identified in the future. Any of the foregoing could materially and adversely affect our business, results of operations and financial condition.
Risks of changes in tax laws and interpretations by authorities
We operate in many different countries and are therefore potentially taxable in several countries and subject to various national tax laws and regulations. Changes in tax laws, jurisdiction and interpretations by authorities or courts as well as findings based on audits by authorities in these countries can lead to additional tax expenses and payments, which can negatively impact our business, our financial position, and results. These unforeseen additional tax expenses can arise for several reasons. Due to the complexity of our business model, this could affect the tax treatment of individualized elements of customer contracts, the taxable presence of a group company in a tax jurisdiction, adjustments to transfer prices, the application of indirect taxes to certain transactions and the non-recognition of the benefits of double tax treaties. Furthermore, R&D tax credits in various countries contribute significantly to our financial performance. Changes can also arise from significant acquisitions, divestments, restructuring and other reorganizations. Global economic risks such as recessions or currency fluctuation can directly affect tax revenues. Governments may adjust tax policies or rates in response to economic downturn which may impact our business. Global technological risks, including the need of digitalization, impact tax compliance. We must adapt to digital tax reporting and address risks related to data security. The cyber-attack was a clear operational disruption which also impacted tax revenues and may give rise to tax implications. Hence improvement of processes, simplification of operating model and digitalization is a clear focus to manage tax risk.
Ownership and patent risks
If our business activities conflict with patents or other intellectual property rights of third parties, activities may be suspended or there may be a legal dispute. Also, if we believe that our patents or other intellectual property rights have been infringed upon by a third party, we might file lawsuits. These actions could have an influence on our financial position or results.
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Uncertain protection for Evotec´s intellectual property
Our success depends in part on our ability to develop, use and protect our proprietary methodologies, software, compositions, processes, procedures, systems, technologies, and other intellectual property. To protect our intellectual property position, we primarily rely upon trade secrets, confidentiality agreements and policies, invention assignments and other contractual arrangements, trademark registrations and copyrights. Although our patent portfolio is not material to certain of our business as a whole, we have filed patent applications in the United States, Europe and abroad related to our pipeline assets, processes, or other technologies (including methods of manufacture). Our collaboration partners also file patent applications on their development assets on which we may earn milestones and royalties. We may not be able to apply for patents on certain aspects of our current or future pipeline assets, processes or other technologies and their uses in a timely fashion or at a reasonable cost. Even issued patents may later be found invalid or unenforceable or may be modified or revoked in proceedings before various patent offices or in courts in the United States, Europe, or other jurisdictions. The degree of future protection for our intellectual property and other proprietary rights is uncertain. Only limited protection may be available and may not adequately protect our rights or permit us to gain or keep any competitive advantage. Additionally, our intellectual property may not provide us with sufficient rights to exclude others from copying our processes and technologies or commercializing pipeline assets. If we do not adequately obtain, maintain, protect, defend and/or enforce our intellectual property and proprietary technology, competitors may be able to use our proprietary technologies and erode or negate any competitive advantage we may have, which could have a material adverse effect on our financial condition and results of operations.
Risks in a patent prosecution process
The patent application process is subject to numerous risks and uncertainties, and there can be no assurance that we or any of our current or future licensors or partners will be successful in prosecuting, obtaining, protecting, maintaining, enforcing and/or defending patents and patent applications necessary or useful to protect our proprietary technologies (including pipeline assets and methods of manufacture) and their uses. Furthermore, the patent prosecution process is also expensive and time-consuming, and we may not be able to file, prosecute, maintain, protect, defend, enforce, or license all necessary or desirable patents or patent applications, as applicable, at a reasonable cost or in a timely manner or in all potentially relevant jurisdictions.
Risks in case of changing patent laws
The patent position of pharmaceutical and biotechnology companies is generally highly uncertain, involves complex legal and factual questions, and has been the subject of much litigation in recent years. Moreover, there are periodic changes in patent law, as well as discussions in the Congress of the United States and in international jurisdictions about modifying various aspects of patent law and such changes in patent laws or in interpretations of patent laws may diminish the value of our intellectual property. There is no uniform, worldwide policy regarding the subject matter and scope of claims granted or allowable in pharmaceutical or biotechnology patents. As a result, the issuance, scope, validity, enforceability, and commercial value of our patent rights are highly uncertain.
Risks in detecting infringement, misappropriation and other violation.
Our ability to enforce our owned (solely or jointly), and in-licensed patent and other intellectual property rights depends on our ability to detect infringement, misappropriation and other violation of such patents and other intellectual property. It may be difficult to detect infringers, misappropriators and other violators who do not advertise the components or methods that are used in connection with their products and services. Moreover, it may be difficult or impossible to obtain evidence of infringement, misappropriation or other violation in a competitor’s or potential competitor’s product or service, and in some cases, we may not be able to introduce obtained evidence into a proceeding or otherwise utilize it to successfully demonstrate infringement. We may not prevail in any lawsuits that we initiate, and the damages or other remedies awarded if we were to prevail may not be commercially meaningful. If any of our owned (solely or jointly) or in-licensed patents covering our pipeline assets, processes or other technologies are narrowed, invalidated, or found unenforceable, or if a court found that valid, enforceable patents held by third parties covered one or more of our pipeline assets, processes or other technologies, our competitive position could be harmed or we could be required to incur significant expenses to protect, enforce or defend our rights.
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Risks in securing licenses.
We currently have rights to certain intellectual property, through our owned (solely or jointly) and in-licensed patents and other intellectual property rights relating to the identification and development of our pipeline assets, processes, or other technologies. Our pipeline assets, processes or other technologies could require the use of intellectual property and other proprietary rights held by third parties and their success could depend in part on our ability to acquire, in-license or use such intellectual property and proprietary rights. In addition, our pipeline assets may require specific formulations to work effectively and efficiently, and these intellectual property and other proprietary rights may be held by others. We may be unable to secure such licenses or otherwise acquire or in-license from third parties any compositions, methods of use, processes, or other third-party intellectual property rights that we identify as necessary or consider attractive, on reasonable terms, or at all, for pipeline assets, processes, and other technologies that we may develop. The licensing and acquisition of third-party intellectual property rights is a competitive area, and several more established companies are also pursuing strategies to license or acquire third-party intellectual property rights that we, or our partners, may consider attractive or necessary. These established companies may have a competitive advantage over us due to their size, cash resources, and greater clinical development and commercialization capabilities. Any of the foregoing could have a material adverse effect on our competitive position, business, financial conditions, results of operations and prospects.
Third-party challenge to Evotec’s or Evotec’s licensors’ patents
Our owned (solely or jointly) and licensed patents and patent applications may be subject to validity, enforceability, and priority disputes. The issuance of a patent is not conclusive as to its inventorship, scope, validity, or enforceability. Some of our patents or patent applications (including licensed patents and patent applications) may be challenged at a future point in time in opposition, derivation, re-examination, inter partes review, post-grant review or interference or other similar proceedings. Any successful third-party challenge to our or our licensors’ patents in this or any other proceeding could result in the unenforceability or invalidity of such patents, which may lead to increased competition to our business, which could have a material adverse effect on our business, financial condition, results of operations and prospects.
Risks from unknowing all third-party intellectual property rights
We may not be aware of all third-party intellectual property rights potentially relating to our assets. Publications of discoveries in the scientific literature often lag behind the actual discoveries, and patent applications in the United States and other jurisdictions are typically not published until approximately 18 months after filing or, in some cases, not until such patent applications issue as patents. We might not have been the first to make the inventions covered by each of our pending patent applications and we might not have been the first to file patent applications for these inventions. To determine the priority of these inventions, we may have to participate in interference proceedings, derivation proceedings or other post-grant proceedings declared by the United States Patent and Trademark Office (“USPTO”), or other similar proceedings in non-U.S. jurisdictions (e.g., within the jurisdiction of the Deutsches Patent und Markenamt (“DPMA”) or European Patent Office (“EPO”)), that could result in substantial cost to us and the loss of valuable patent protection. The outcome of such proceedings is uncertain. No assurance can be given that other patent applications will not have priority over our patent applications. In addition, changes to the patent laws of the United States allow for various post-grant opposition proceedings that have not been extensively tested, and their outcome is therefore uncertain. Furthermore, if third parties bring these proceedings against our patents, regardless of the merit of such proceedings and regardless of whether we are successful, we could experience significant costs and our management may be distracted. Any of the foregoing events could have a material adverse effect on our business, financial condition, results of operations and prospects.
Future litigation by third parties
Our commercial success depends in part on our ability and the ability of future partners to develop, manufacture, market and sell our assets and use our assets and technologies without infringing, misappropriating, or otherwise violating the intellectual property rights of third parties. There is a substantial amount of litigation involving patents and other intellectual property rights in the biotechnology industry, as well as administrative proceedings for challenging patents, including interference, derivation, inter partes review, post-grant review, and re-examination proceedings before the USPTO, or oppositions and other comparable proceedings in foreign jurisdictions. We may be exposed to, or threatened with, future litigation by third parties having patent or other intellectual property rights alleging that our assets, manufacturing methods, software and/or technologies infringe, misappropriate, or otherwise violate their intellectual property rights.
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Limited lifespan of patents
Most international jurisdictions provide a 20-year nominal patent term, though many require payment of regular, often annual, annuities to maintain pendency of an application or viability of an issued patent. In some jurisdictions, one or more options for extension of a patent term may be available, but even with such extensions, the lifespan of a patent, and the protection it affords, is limited. Even if patents covering our or our partners’ assets, processes and other technologies and their uses are obtained, once the patent term has expired, we may be subject to competition from third parties that can then use the inventions included in such patents to create competing products and technologies. Any of the foregoing could have a material adverse effect on our competitive position, business, financial conditions, results of operations and prospects.
HR risks
Loss of highly qualified staff (key employees)
Losing highly qualified staff and facing challenges in recruiting adequate personnel for replacement or new roles poses significant risks for us across various dimensions. It results in a depletion of expertise essential for operations, especially in niche scientific areas, disrupting workflow and productivity as remaining employees’ shoulder additional responsibilities, potentially leading to burnout and decreased efficiency. Integrating new hires further impacts productivity. The departure of key team members affects team dynamics, morale, and institutional memory, making it challenging to maintain continuity and make informed decisions in the future. High turnover tarnishes our reputation, signaling instability and impacting the bottom line due to recruitment, training, and productivity losses. In today’s competitive landscape, we heavily rely on our human capital to maintain a competitive edge. Losing highly qualified staff can put us at a significant disadvantage compared to competitors with stable and skilled work forces. Despite operating in an attractive industry and market environment, we face strong competition in the recruitment market, where short-term hiring can be challenging. Furthermore, the departure of key staff members can result in the loss of clients and projects, as they often play crucial roles in maintaining relationships and delivering successful outcomes.
Information technology risks
Cyber risks, data integrity and protection and loss of data
We collect and maintain information in digital form that is necessary to conduct our business, and we are highly dependent on our information technology systems. In the ordinary course of our business, we collect, store, and transmit large amounts of confidential information, including intellectual property, proprietary business information, human samples, and personal information. We have also outsourced elements of our information technology infrastructure, including our internal computer system, and as a result, several third-party vendors may or could have access to confidential information.
Our information technology systems, including our internal computer systems, and data have been, and may continue to be, vulnerable. As previously disclosed, on April 6, 2023, we were the victim of a ransomware incident that has continued to impact our operations. Upon learning of the incident, we immediately retained a team of third-party forensic, incident response and security professionals and engaged external counsel to respond to and contain, as well as to investigate and determine the full scope of, the incident. We also notified law enforcement officials and confirmed that we have certain insurance coverage for such incidents. However, there is no guarantee that we will be fully reimbursed for all expenses incurred in connection with the incident. The incident has caused, and may continue to cause, delays in our operations and result in a deferral or loss of revenue and incremental costs that may adversely impact our results of operations, cash flows and financial condition and the trading price of our Common Stock.
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As a result of the ransomware incident and any future cyber security incidents, information stored on our networks may be manipulated, publicly disclosed, and permanently lost. Any such breach or other loss of information could result in legal claims or proceedings and liability under laws that protect the privacy of personal information, as well as regulatory penalties. We cannot guarantee that third parties will not be able to gain unauthorized access to or otherwise breach our systems in the future. Any such unauthorized access or breach could adversely affect our business, results of operations and financial condition and there can be no assurance that there will not be future cyber security incidents or vulnerabilities.
Furthermore, because the techniques used to obtain unauthorized access to, or to sabotage, systems change frequently and often are not recognized until launched against a target, we may be unable to anticipate these techniques completely or implement adequate preventative measures in the future as well. We may also experience security breaches that remain undetected for an extended period. If any such material system failure, accident or security breach were to occur and cause interruptions in our operations also in the future, it could result in a material disruption of our development programs and our business operations, whether due to a loss of our trade secrets or other proprietary information or other similar disruptions. Any such breach, loss or compromise of clinical trial participant personal data, including in connection with PanHunter, may also subject us to civil fines and penalties. To the extent that any disruption or security breach were to result in a loss of, or damage to, data or applications, or inappropriate disclosure of confidential or proprietary information, we could incur internal costs or liability, Our competitive position could be harmed and the further development and commercialization of our partners’ product candidates could be delayed.
To minimize the risk of losing data, we invest in the development of a new and more secure infrastructure based on international best practices in cyber & IT security. In addition to technical measures, structural and procedural changes are made in Information Security, IT and IT Security to continuously review and improve security. Awareness campaigns are conducted to inform employees about current threats. These measures reduce the effect of hazards such as natural disasters, power failures, system upgrade failures, theft and data corruption as much as reasonably possible. As a result of the ransomware attack on April 6, 2023, all security measures and precautions are being extensively reviewed and enhanced with outside consultants and security experts as part of the recovery from the external attack. Nevertheless, there is no assurance that there will not be any cyber security incidents or vulnerabilities that will have a material adverse effect on us in the future.
Compliance with corporate guidelines relating to data integrity and protection, which also regulate the assignment of access rights, is mandatory. We perform regular IT risk assessments to identify and rectify weaknesses. A Security Committee reviews and discusses threats and risks on a regular basis and decides on the implementation and handling of mitigation measures. High risks are communicated to the Management Board and the Supervisory Board.
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GDPR and other similar jurisdictions
Considering the significantly expanded regulations under General Data Protection Regulation (“GDPR”) and other similar jurisdictions, we are permanently reviewing the handling of relevant internal and external data and our respective flow, storage, and access. If we fail to comply with the GDPR and the applicable national data protection laws of the European Union member states, or if regulators assert, we have failed to comply with these laws, it may lead to regulatory enforcement actions or other administrative penalties. This may be onerous, may interrupt, or delay our development activities, and may adversely affect our business, financial condition, and results of operations. We must comply with the GDPR and the United Kingdom (“UK”) GDPR, which, together with the amended UK Data Protection Act 2018, retains GDPR in the United Kingdom’s national law. The European Commission (“EC”) has adopted an adequacy decision which will automatically expire on June 27, 2025, unless the European Commission re-assesses and renews/extends that decision. The relationship between the United Kingdom and the European Union in relation to certain aspects of data protection law therefore remains unclear, and it is unclear how the United Kingdom data protection laws and regulations will develop in the medium-to-longer term, and how data transfers to and from the United Kingdom will be regulated in the long term. These changes may lead to additional costs and increase our overall risk exposure. Other jurisdictions outside the European Union are similarly introducing new or enhancing existing privacy and data security laws, rules, and regulations, which could increase our compliance costs and the risks associated with non-compliance. Regarding the US the newly adopted adequacy decision by the EC (Data Privacy Framework (“DPF”) - 10.07.2023) for the transfers between EU-US, finds that the US has introduced new safeguards and mechanisms ensuring an adequate level of data protection ‘essentially equivalent to the level of protection within the EU’, for companies that commit themselves to a detailed list of privacy obligations similar to the GDPR, apply to join the DPF, and are then placed on the DPF list by the Department of the Commerce (“DoC”). Misleading or improper claims of being certified will be subject to enforcement action by US enforcement authorities. There is the possibility of another challenge to the DPF in the future. These changes may lead to additional costs in case of certification under the DPF. However a penalty risk due to the adequacy decision is improbable and the risk is rather low. Privacy and data security laws are rapidly evolving, and the future interpretation of those laws is somewhat uncertain. We cannot guarantee that it is, or will be, in compliance with all applicable international regulations as they are enforced now or as they evolve. There is significant uncertainty related to the way data protection authorities will seek to enforce compliance with privacy and data security laws, including the GDPR. Another influence to the GDPR compliance is the upcoming Artificial Intelligence (“AI”) Act. The Council of the European Union and the European Parliament have reached an agreement on the EU AI Act which is expected to be formally adopted in early 2024. The final version, to be expected in 2024 needs a close assessment and risk assessment in terms of data protection. Generally, enforcement uncertainty and the costs associated with ensuring compliance with privacy and data security laws, including the GDPR may be onerous and adversely affect our business, financial condition, results of operations and prospects. If any of these events were to occur, our business and financial results could be significantly disrupted and adversely affected. In this regard, we need to intensify our employee training efforts to increase awareness of the need to review and adjust internal data protection procedures and improve restricted access applications. In addition, we have defined routines and installed internal and external contact persons in the event of certain potential types of data breaches.
Operational risks
Procurement risks
Our business depends on a reliable supply of various materials for our laboratories and production. Due to our business model, short-term order inquiries are unavoidable, such that delivery bottlenecks can lead to delays in projects and production and thus have a negative impact on our capacity planning and earnings situation. Price increases for laboratory and production materials, but also for electricity and gas, represent a financial risk for us. We face this risk by working closely with our suppliers and using different sources of supply. Due to regulatory requirements, however, we are not always able to switch to other sources of supply, so it cannot fully mitigate the risk. We try to limit the risk by reviewing and monitoring our supplier relationships, a continuous exchange with the operational areas for the early identification of needs and constant market analyses for alternatives to our single source supplier. In the context of the Russia/Ukraine conflict and the Israel-Hamas conflict with impacts like disrupting the transit via the Strait of Hormuz, we are facing a procurement risk due to short-to-medium-term increasing energy prices since about one third of the gas and oil is transported via that route and would have to be re-routed with impact on increased transportation time, costs and availability of materials and goods. Nevertheless, the risk has decreased compared to 2022, mainly due to the inclusion of additional costs in the budget and a trend towards an easing of the situation on individual procurement markets, particularly the energy market. Despite a positive trend on the energy price market, it remains heavily influenced by political decisions and unpredictable geopolitical developments. Interruptions such as production stop at Evotec´s sites because of having no materials are therefore currently not predictable.
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Process risks
For the operation of our complex global business, we have opted for a best-of-breed approach, i.e. we use the best system solution for different business processes and connect the various systems using middleware. In this way, we achieve comprehensive coverage of the various business processes and a high degree of accuracy of fit. In the past, acquisitions and in-house developments have resulted in a heterogeneous system landscape that no longer does justice to this approach. As a result, a process landscape has developed in which many (financial) processes are associated with a high number of labor-intensive, manual work steps, which increases the risk of errors in our day-to-day business.We are therefore working on a sustainable improvement of the system landscape as part of the reconstruction after the cyber-attack in April last year in order to largely automate manual processes, digitize and standardize business processes and transfer them into a legally compliant process framework. The new system landscape is intended to simplify our work in all areas, ensure end-to-end data conformity and provide a clean basis for business decisions. The implementation and operation of new processes and IT projects are associated with certain risks. Failure to integrate properly with other systems we use, possible loss of data or information, cost overruns and delays could have a negative impact on our business activities and the effectiveness of our internal controls.
Major disasters on sites
In the event of a disruptive major disaster that results in stoppages of our activities on one or multiple sites, or in damages and/or interruptions to the operations of key suppliers, we may be forced to suspend or incur significant delays in parts or all our activities. In each case, there is a potential risk that our financial position and operating results may be substantially affected. In addition, the implementation of R&D plans may be impacted by damages to our research facilities as well as medical and other institutions at which testing is conducted. In case of major disasters such as extreme weather events, earthquakes (especially in risk areas like Seattle, United States), or plane crashes, we may suffer loss of business due to an inability to execute contracts and fulfill client deliverables. We have created business continuity plans as well as disaster recovery plans and have insurance for these rare events.
Environmental, health and occupational safety risks
We continuously enhance our operational risk management and optimize the accountability and performance assessment mechanism of all departments and functions. We actively gather data on operational risk to enable proactive risk prevention opportunities. The long-term objective is to monitor the level of operational risk across the Group monthly to gain insights preventively, thereby reducing our operational risks and saving costs in the long term. The nature of our operating activities exposes Evotec to a wide range of health, safety, and environmental risks. Our EHS teams and management systems help identify these risks and drive performance improvements by setting and advising on industry standards and compliance requirements by minimizing the complexity of such standards and requirements. Looking forward we are building governance and competence in the EHS function as we look to establish a deeper focus on proactive risk management, aligned with the global trends, and emphasize ongoing compliance developments and client expectations in this space.
Item 4. Information on the Company
| A. | History and development of the company. |
We were incorporated on December 8, 1993, as a company with limited liability (Gesellschaft mit beschränkter Haftung) under the laws of Germany under the name EVOTEC BioSystems GmbH, formerly registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Hamburg, Germany, under the number HRB 54731. On August 7, 1998, we were converted into a German stock corporation (Aktiengesellschaft) under the laws of Germany under the name EVOTEC BioSystems Aktiengesellschaft, formerly registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Hamburg, Germany, under the number HRB 68223. On February 28, 2002, we changed our name to Evotec OAI AG, and on June 8, 2005, we changed our name to Evotec AG. On March 29, 2019, we converted into a European stock corporation (Societas Europaea, or SE) under the laws of Germany and the European Union called Evotec SE, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Hamburg, Germany, under the number HRB 156381.
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Since November 10, 1999, we have been listed on the regulated market of the Frankfurt Stock Exchange under the trading symbol “EVT” and under the ISIN DE0005664809. Our shares are listed under the Segment Prime Standard. As a result of the cyber-attack, a delay in external reporting occurred, which led to a temporary exclusion from the indices of the Frankfurt Stock Exchange. With the publication of the annual report on May 12, 2023, Evotec satisfied the conditions to re-join the MDAX and the TecDAX and resumed its dual listing as of June 19, 2023.
On November 3, 2021, our registration statement on Form F-1 (File No. 333-260143), as amended, was declared effective by the SEC for our initial public offering of our ADSs, each representing one-half of one ordinary share, no par value per share, pursuant to which we offered and sold a total of 22,995,000 of our ADSs, at a public offering price of $21.75 per share.
Our principal executive offices are located at Essener Bogen 7, Hamburg, Germany. Our telephone number is +49 40 560 81-0. Our website address is http://www.evotec.com. The information contained on, or that can be accessed through, our website is not incorporated by reference into this annual report. We have included our website address as an inactive textual reference only.
Our agent for service of process in the United States is Evotec (US) Inc., 303B College Road East Princeton, NJ 08540 Tel: (732) 329-2355.
| B. | Business overview. |
We are an industry-leading drug discovery and development partner for the pharmaceutical and biotechnology industry. Our mission is to co-create pipelines based on discovery, development and manufacturing of medicines that matter for a broad range of difficult-to-treat diseases in collaborations with our partners. We focus on data-driven disease understanding, precision medicine and improving disease relevance during the early stages of drug discovery and development to increase probabilities of success up and to positively impact patients’ lives.
We built a “shared economy” business-to-business model in R&D, designed to discover, in collaboration with our partners, best and first-in-class medicines while participating in the success of drug candidates through the creation of a royalty pool. Our network includes more than 800 partners ranging from leading pharmaceutical companies, small and large biotechnology companies, academic institutions, patient advocacy groups and venture capitalists as well as mission-driven foundations and not-for-profit organizations. Together with our partners, we dedicate our work to a wide spectrum of diseases with unmet medical needs, including indications affecting many patients in large parts of the world with little to no access to sufficient care.
To that end, we have built a comprehensive suite of fully integrated technology platforms within four focus areas: PanOmics-driven drug discovery, iPSC cell therapy: “off-the-shelf” cell therapies based on induced pluripotent stem cells, Just – Evotec Biologics with AI and continuous manufacturing for a more cost-efficient access to antibodies and an integrated business-to-business platform for increased probabilities of success from target to the patient (End-to-End Shared R&D). By sharing access to these platforms, we provide solutions to our partners, which we believe will transform the way new drugs are discovered. The aim is to provide better access in many underserved areas while accelerating the drug discovery and development process and reducing the high failure rates that are still observable in the industry today.
Traditional drug discovery and development is a lengthy, costly, and complex process that is subject to a high degree of uncertainty and high failure rates. In addition, identifying novel compounds requires extensive screening and in vitro and in vivo testing, which can be both labor-intensive and time-consuming. In most R&D models today, for every successful medicine that is commercialized, 5,000 to 10,000 compounds fail in drug discovery. Moreover, it takes approximately 12 years of intense R&D, and approximately $ 2 billion for a new medicine to reach patients.
We collaborate with our partners in all early research phases from sourcing novel ideas to early clinical development. AI and Machine Learning (“ML”) expertise and capabilities such as deep learning and computational knowledge integration is put into use were needed along the entire value chain. Our platforms are specifically designed for precision drug discovery and to lead to differentiated results by integration into established R&D capabilities that are leveraged by our experienced scientists. Our drug discovery therapeutic area expertise and capabilities include diabetes and its complications, metabolic diseases, more broadly, fibrosis, infectious diseases, Central Nervous Systems (“CNS”) diseases, oncology, pain and inflammation, immunology, rare diseases, respiratory diseases, dermatology, and women’s health.
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For the near future, a substantial majority of revenues generated from the offerings to our partners will be based on “fee-for-service” agreements or Full-time equivalent (“FTE”) -based arrangements, recognized in one of our reporting segments, EVT Execute. Subject to the degree of integration of proprietary technologies, or if alliances are built based on in-house R&D projects as part of EVT Innovate, we may also benefit from milestone, license, and royalty payments in addition to the compensation via FTE rates. In the years ended December 31, 2022, and 2023, 2.7% and 0.7%, respectively, of our total group revenues from third parties were derived from milestone, license, and royalty payments.
In 2023, we expanded our network of manufacturing facilities to five. We have the capacity for continuous manufacturing of biologics in the United States, in Redmond (Washington). Our Active Pharmaceutical Ingredient (“API”) manufacturing capabilities are in Europe in Abingdon, United Kingdom, Verona, Italy, Halle/Westphalia, Germany. We also have GMP manufacturing for cell and gene therapy in Modena, Italy. In the first half of 2024 announcement of shift to profitable growth with size and footprint adjustments, through exit of gene therapy in Orth, Austria and Chemistry activities in Marcy / Lyon, France and decision to discontinue the operation of Halle / Westphalia, Germany.
With more than 5,000 employees, we leverage our technologies and platforms to develop medicines that matter across multiple modalities, with the aim of ultimately making the right drug available to the right patient. Our drug candidates can be created at as low as half the cost of current benchmarks for discovery through Investigational New Drug (“IND”) applications and those currently generated by industry players, and at a faster speed at up to 30% less time than existing benchmarks for discovery through IND application. Certain of our operations are carried out under GMP and GLP regulations that are certified and periodically audited by regulatory agencies such as the FDA, MHRA, AIFA and our customers.
As of December 31, 2023, Evotec’s work has resulted in over 140 pipeline assets; thereof 18 disclosed pipeline assets in clinical development, and over 120 pipeline assets in the discovery and preclinical phases.
We report the results of our work and collaborations through two operating segments:
| ● | EVT Execute: primarily includes fee-for-service and FTE-rate-based arrangements where our customers own the intellectual property. EVT Execute accounted for 66% of our revenues from third parties in the year ended December 31, 2023, and 73% and 76% for the years ended December 31, 2022, and 2021, respectively. |
| ● | EVT Innovate: includes our internal R&D activities as well as services and partnerships that originate from these R&D activities. In addition to FTE-based revenues, we generate revenues from milestones and royalties on our pipeline assets. EVT Innovate accounted for 34% of our revenues from third parties in the twelve months ended December 31, 2023, and 27% and 24% for the years ended December 31, 2022, and 2021, respectively. |
Starting from January 2024, new reporting segments are introduced: Shared R&D and Just-Evotec Biologics to replace EVT Execute and EVT Innovate.
We leverage our offerings described throughout this annual report across both EVT Execute and EVT Innovate. Revenue generated through our collaboration arrangements based on our four focus areas PanOmics, iPSC cell therapy, Just – Evotec Biologics and End-to-End Shared R&D. These areas may contribute to either the EVT Execute segment or the EVT Innovate segment, depending on the nature of the contract with our customer, the ownership of the intellectual property, the stage of the project and our right to generate revenue from development success. We believe our partnership model is unique and allows us to balance and diversify the risks associated with drug discovery.
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Focus areas: PanOmics, iPSC cell therapy, Just – Evotec Biologics and End-to-End Shared R&D
1 Sponsoring and execution of clinical trials as well as distribution and marketing are under the responsibility of our partners, still sharing upside in case of success.
| 1. | PanOmics- driven drug discovery for deep disease understanding, predictive efficacy and safety, more effective medicines. |
Recent scientific and technological advancements have significantly eased approaches towards the understanding of diseases at a molecular level, either by investigating the entire complement of a specific type of biomolecule or the totality of a molecular process or signaling cascades within an organism. Working toward the vision of deep human disease understanding and designing highly effective therapies, Evotec leverages several -omics fields and cross-omics insight generation, referred to as PanOmics.
Examples of well-established fields include genomics, transcriptomics, proteomics, and metabolomics. Evotec’s PanOmics platform generates genomics, transcriptomics, proteomics, and metabolomics data of the highest quality on an industrial scale to profile and selects promising new drug candidates derived from comprehensive cell biological profiles from molecular patient databases – Evotec’s Molecular Patient Databases (“E.MPD”).
The results often lead to the stratification of sub-populations within a broader group of patients and eventually may lead to the development of personalized therapies. This change in paradigm has increased the need for new AI/ML-based platforms, tools, and methods to better understand, interpret, and translate the vast amounts of information and data that is being generated to better understand the molecular biology, cell regulation and the pathogenesis of individual diseases. PanHunter, Evotec’s integrated data analytics platform, makes the Company’s -omics data available in a user-friendly manner at the enterprise level. Users can freely interact with and combine data in a modular, app-based system where results are available immediately and can be interpreted or used as input for subsequent steps. This rapid feedback is a crucial feature distinguishing PanHunter from other similar tools.
The improved understanding of sub-populations’ disease profiles has resulted in the need for better patient-derived disease models. Our AI/ML and precision medicine platforms are therefore complemented by our proprietary iPSC technology platform, which utilizes patient-derived cell-based assays for disease modeling. iPSC cell assays are crucial to accurately modeling diseases based on the use of human tissue and represent therefore an alternative to animal models to profile drug candidates in the pre-clinical stage.
Moreover, the analysis of disease signatures and individual patient signatures improves patient stratification, driven by biomarker identification (EVOgnostic) as well as human in vitro model-based safety prediction (E.SAFETY).
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Molecular disease understanding for higher Probability of Success (“PoS”) in the drug discovery process
| 2. | iPSC cell therapies |
Somatic cells from a healthy donor can be used to produce induced pluripotent stem cells (iPSCs). These cells can be amplified indefinitely and differentiated into many different human cell types. This platform is therefore well suited to manufacture such iPSC-derived cell therapeutics at large scale to treat and potentially address a whole plethora of different diseases.
Our cell therapy platform leverages our proprietary iPSC technology for this purpose. Here we focus on developing off-the-shelf cell therapies with long-lasting efficacy like immune cells in oncology (e.g., Natural killer (“NK”) cells, T cells and others), beta cells for diabetes, cardiomyocytes in heart repair, and retina cells in ophthalmology. Our lead cell therapy candidate is a cell replacement therapy for type 1 diabetes that is currently in preclinical development in partnership with Sernova. A first partnership in immuno-oncology was initiated in 2023, while the foundation was laid together with the University hospital in Hamburg (“UKE”) for the development of a next-generation regenerative therapy for patients recovering from a heart attack.
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| 1) | Inflammation and Immunoloy disease area. |
| 2) | Systemic Lupus Erythematosus. |
3. |
Just – Evotec Biologics: AI and continuous manufacturing for a more cost-efficient access to antibodies. |
In the field of biologics discovery, development, and manufacturing, we apply our machine learning and integrated technology platform J.DESIGN to bring further value to our partnerships by designing, developing, and manufacturing biologics in a cost-effective and efficient manner. Because we utilize J.DESIGN throughout the entire drug discovery and development process of a biologic, by the time it reaches the manufacturing stage in any given program, we have already predicted and reduced the risk of most scaling problems that may occur. As a result, we can deliver flexible, right-sized manufacturing with faster turnaround times and without sacrificing the quality of the products. This new paradigm broadens the scope of disease areas for biologic drug candidates driven by significantly higher yields and lower costs. It will also accelerate the growth of biosimilars given cost advantages and it makes orphan diseases more amenable to biologics despite small addressable populations. For the same reasons, smaller patient populations resulting from precision medicine-based patient stratification will also benefit.
To enhance our manufacturing capabilities, in August 2021, we opened our first J.POD, a late-stage clinical and commercial manufacturing facility that uses single-use technology located in Redmond, Washington, United States. Because our facility contains clinical and commercial processes, both can be operated at the same scale to facilitate seamless transfer and eliminate scale-up risk. The building is approximately 130,000 square feet in size and will house more than 200 employees at full capacity. The site, which will be able to produce on a large enough scale to meet most of our commercial needs in a single facility and will mainly supply markets in North America.
As global demand for flexible biologics capacity and for more affordable access to medicines increases, we have started construction of a second J.POD facility in Toulouse, France in September 2022. Europe is the second largest biologics market and lessons learned from the COVID-19 pandemic led to increasing demand for local capacity and security of supply to improve pandemic preparedness in case needed. The decision to set up this infrastructure at our own site in Toulouse, France was strategic, as the Toulouse footprint creates operational efficiency and co-location with oncology and immunology expertise, adding further synergy with our strategic needs. The second J.POD facility is expected to be fully operational in the first quarter of 2025.
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| 4. | End-to-End Shared R&D: an integrated business-to-business platform for increased probabilities of success from target to the patient. |
Our End-to-End Shared R&D platform leverages a comprehensive set of capabilities across all stages of discovering new medicines, from initial biological validation and target selection to clinical trial planning, safety assessment and manufacturing. We believe that we differentiate from our competition because we combine multi-modality expertise, disease expertise and interdisciplinary integration (e.g., molecular design, chemistry, biology, pharmacology, Absorption, Distribution, Metabolism, Excretion (“ADME”), toxicology, formulation development, API manufacturing, etc.) across the various stages of discovery and development. Furthermore, the application of AI/ML and model-building capabilities to predictive science aims at improving discovery projects in terms of probability of success, speed, cost, and quality.
1 Investigational New Drug Application In collaborations where ownership of IP resides with one of our partners, we provide stand-alone or fully-integrated drug discovery and development solutions to our partners.
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Our sources of revenue generation vary on the types of contracts we have with our partners. Although contracts vary, often times they are linked to intellectual property (“IP”):
Our solutions range across most modalities and from early target identification to the manufacturing of compounds and commercial products. Well-defined work packages are typically provided and compensated on a “fee-for-service”, basis and they are distinct in scope and nature. Typical examples of such services include, among others, high-throughput screening campaigns, ADME, safety assessment and API manufacturing. In addition, fully integrated drug discovery projects, in which partners work with Evotec to conduct interdisciplinary research in pursuit of novel therapeutics, usually under multi-year contracts, are typically compensated on an FTE-basis. These models apply if no intellectual property is involved, or none of our essential proprietary technology platforms are used. The partners’ intellectual property rights therefore protect the resulting therapeutics.
We leverage our proprietary technology platforms and related IP to develop new drug discovery projects, assets, and platforms, both internally and through collaborations with leading pharmaceutical and biotechnology companies and academic institutions. These collaborations are typically based on agreements with partners, which involve a combination of upfront payments, ongoing research payments (based on FTE-rates), and financial upside through milestones and royalties. These collaborations enable the sharing of cost and risk as our partners typically absorb the costs of clinical development and commercialization.
We also leverage ownership of IP, by making equity investments in products, technology platforms and companies through which we obtain early access to innovation. We facilitate the acceleration of innovation by providing capital as well as access to our technology platforms, expertise, and network. We see significant potential for value creation from these new partnerships. We expect to realize returns on investments both from successful exits from its portfolio companies (e.g., trade sale, M&A or IPO) and fee-for-service and FTE-rate-based revenues from our portfolio companies.
Value creation pillars of business-to-business model in Biotech
1 Reaching from out-licensing of own IP to joint creation of IP.
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We have experienced significant growth in the recent past, despite the disruption related to the cyber-attack. From 2022 to 2023, our revenues increased by €30.0 million, or 4%, from €751.4 million in 2022 to €781.4 million in 2023. Our growth is underpinned by a stable customer growth of 838 in 2023 compared to 819 in 2022. We have maintained a repeat business percentage of 93% (2022: 92%), which we believe affirms the quality of our services and evidence high customer satisfaction. Revenues with our top 10 customers contributed 47% of total revenues in 2023 as compared to 39% in 2022. To facilitate future growth, we intend to continue our investments into proprietary R&D, which drives the development of our pipeline. From 2022 to 2023 our expenses for proprietary R&D decreased by €8.1 million, or 10.6%, from €76.6 million to €68.5 million to balance between strong investments in Evotec’s capabilities to improve efficiency and precision medicine platforms and financial stewardship in the year impacted by the cyber-attack. Overall, our number of partnered pipeline assets increased to more than 140, while the pool of yet unpartnered programs exceeds 60 assets, Equity participation increased to 31 as of December 31, 2023.
Broad pipeline of development
The table below outlines our pipeline assets as of December 31, 2023. Of the pipeline assets, one obtained market approval in South Korea in 2022, one obtained market approval in China in 2023, six are in Phase II, and ten are in Phase I.
We initially developed most of the candidates for which we have the right to receive royalty or milestone payments. We subsequently licensed or assigned those candidates to partners for continued pre-clinical and clinical development. They also include candidates that have been initially developed by our partners and that have become the subject of a joint research project pursuant to which we are eligible for royalty or milestone payments. We also disclose candidates that are being developed by partners in whom we have solely an equity stake and no right to milestone or royalty payments with respect to their candidates in development but where we could benefit from value accretion related to the progress of these assets.
Beyond therapeutic areas, we have also successfully expanded our pipeline across multiple modalities. In 2015, our therapeutic assets were exclusively small molecules. In 2023, more than ten assets were derived from cell and gene therapy, more than 20 from biologics, more than 90 from small molecules and more than ten early-stage projects where several modalities are being investigated. We expect the relative share of pipeline-related revenues as a percentage of total revenue to increase as the Company’s pipeline matures and as the revenue mix within all focus areas increasingly includes success-based components.
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Our Competitive Strengths
Based on many technological advances and new biological insights, the opportunity to change the odds and improve the success rates in drug discovery has been made more achievable. In our view, our set-up as a fully integrated drug discovery and development innovation hub makes us well-positioned to achieve superior results. We believe we have built the most agile platform in the industry, and we distinguish ourselves from our competition through our competitive strengths, as described below:
| ● | Our fully integrated innovation platform has comprehensive breadth and depth: Our platform covers the full discovery, pre-clinical and early clinical development value chain, delivered in a highly integrated, cross-functional manner. This platform is comprehensive and in its breadth and depth provides unique offering that resonates strongly with our partners because we offer a unique combination of disease area expertise, full-suite technology, and predictive power across most modalities. Our competitors in the market for external drug discovery offer services or solutions with a limited scope focusing on discrete steps within the value chain. In contrast, our platform integrates disruptive, proprietary technologies within a holistic product suite to enable the development of potentially first and best-in-class therapeutics. Based on our industry knowledge and the public disclosure of other industry participants, we believe that we are the only company among our identified competitors that offers chemistry, biology, transcriptomics, proteomics and iPSC-based disease modeling with multi-modality expertise across small molecules, precision medicines, biologics, cell therapies and gene therapies, as well as manufacturing capabilities that span the drug development continuum, from discovery through commercialization. |
| ● | We offer greater precision and higher efficiency than industry standards: The integration of precision and efficiency is in our view the solution to the industry’s challenge of constantly declining returns on R&D investments. Over the last 25 years, we have built an agile platform, designed to help improve returns from R&D. Our proprietary discovery and development platforms leverage data, operational efficiencies, and technological capabilities to drive rapid progress and successful outcomes in the early stages of the R&D process. We also apply ML and AI to our novel molecular patient databases and disease models to generate and analyze data with the ambition to increase the likelihood of success in clinical trials and provide solutions to the challenge of constantly declining returns on R&D investments. |
| ● | Our patient-centric approach helps us benefit from the paradigm shift of precision medicine: We have built an advanced precision medicine platform that integrates molecular patient databases, our iPSC- based drug screening platform as well as our PanOmics and PanHunter platforms. We believe that the identification of disease-relevant molecular profiles in patients is fundamental for most precision medicine approaches, and we target the development of molecular patient databases in various disease areas. For example, our chronic kidney disease (“CKD”) database is derived from more than 12,000 CKD patient profiles and more than 5,000 in other disease areas. We have also developed one of the largest iPSC platforms in the industry, which enables iPSC-based disease modelling and drug screening at an industrialized scale. We believe that patient-derived disease models are the new gold standard in profiling drugs at the pre-clinical stage of development, eventually leading to lower attrition rates during clinical trials. This helps us drive the paradigm shift toward individualized drug discovery and allows us to address diseases in a more precise manner tailored to molecular patient profiles. |
| ● | Our modality-agnostic set of solutions maximizes the potential of our integrated technology platform: Our multi-modality platform ranges across small molecules, biologics, and cell therapy. Our platforms are applicable to all modalities and lead to a modality-agnostic pipeline spanning a broad range of disease areas. We leverage our industry-leading iPSC platform for the development of next-generation cell-based therapies as well as disease modeling and drug screening. |
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| ● | Our wide array of high-quality partnerships results in a deep, diversified pipeline: We are a partner of choice for leading pharmaceutical companies, small and large biotechnology companies, start-ups, academic institutions, patient advocacy groups, venture capitalists as well as foundations and mission driven not-for-profit organizations. Due to our value proposition for partners, we can retain significant commercial upside with all our assets that are partnered in the form of royalties, milestones, or equity stakes. Our pipeline benefits from our highly productive research collaborations and is designed to become one of the largest royalty portfolios in the industry. The value upside created by our pipeline comes at a low capital intensity and at an attractive risk-reward profile as our partners typically carry the clinical development costs of our assets. |
| ● | Our people and culture place scientific excellence at the heart of everything we do: We are led by a strong management team with extensive industry knowledge and experience. We foster a culture of scientific excellence and problem solving, demonstrated by the scientific expertise and passion of our more than 4,200 scientists who work for Evotec. A large share of our employees holds at least one academic qualification, including a significant number with a Ph.D. or equivalent. We stay close to groundbreaking research through our numerous research collaborations with academic institutions such as Oxford, Heidelberg, University of California, Los Angeles (“UCLA”), UKE, Toronto, Harvard, Yale, and National University of Singapore (“NUS”). Our personnel strategy focuses on attracting, growing, and retaining talent, developing our leaders to be great leaders, ensuring a competitive reward system, and supporting our ONE Evotec culture. Our three core values that form the basis of our corporate culture are innovation, collaboration, and entrepreneurship. These values are consistent across interactions among Evotec employees and with our partners (two of our critical stakeholder groups) and are essential to our business model. |
Our Growth Strategy
Our growth strategy aims to address the entirety of the R&D continuum by tackling a wide range of disease areas utilizing a modality-agnostic approach. We believe we have built one of the most efficient integrated drug discovery, development and manufacturing infrastructures that generates the highest quality results in the fastest and most cost-efficient way. In addition, by leveraging the value of our platforms and sharing intellectual property, we seek to de-risk our portfolio through the breadth and diversity of pipeline assets. We aim to have over 170 pipeline assets by the end of 2025. Royalties contribute a small fraction of revenues today, but we anticipate they will become more meaningful by 2025.
Our strategies include:
| ● | Establishing Evotec as the premier innovator to discover and develop new medicines with partners. |
| ● | Strengthening our position as a preferred R&D partner to the life sciences sector. |
| ● | Expanding the value of co-owned assets. |
| ● | Disrupting the biologics ecosystem through Just – Evotec Biologics toward access to medicines. |
| ● | Identifying risk-balanced, high-reward opportunities through equity investments. |
| ● | Leveraging the synergies between Evotec’s businesses. |
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Developments in the pharmaceutical and biotechnology markets
According to Grand View Research, the global biotechnology industry is driven by strong government support in the form of initiatives to modernize the regulatory framework, improvements in approval processes & reimbursement policies, as well as standardization of clinical trials. The increasing prevalence of personalized medicine and the growing number of orphan drug formulations are opening new opportunities for biotechnology applications and are encouraging the influx of emerging and innovative biotechnology companies, further boosting market sales.
Precedence Research estimates the global biotechnology market to grow with a Compounded Annual Growth Rate („CAGR“) of 11.8% from $ 1.38 tn in 2023 to $ 4.25 tn by 2033.
The global small molecule discovery market size is expected to increase with a CAGR of 8.0% from $ 82.3 bn in 2023 to $ 163.8 bn by 2032, while the cell and gene therapies continue to become more and more important: The global cell and gene therapy market is expected to grow from $ 18.1 bn in 2023 to $ 82.2 bn in 2032 according to Precedence Research. Rising demand for clinical solutions for the treatment of chronic diseases, such as cancer, diabetes, age-related macular degeneration, and almost all forms of arthritis are also expected to boost the market. The discovery and development of products for diabetes and neurological disorders such as Parkinson’s and Alzheimer’s, various cancers and cardiovascular diseases, together with its partners, is also a core competence of Evotec.
Fitch Ratings forecasts in its sector outlook a good growth in 2024 for the global pharma and biotech industry, supported by a moderating inflationary environment, despite still-high interest rates. Furthermore, Fitch anticipates that a narrower strategic focus and favorable demand and volume outlooks will increase the focus on drug pricing and patient value as payers manage tight post-pandemic healthcare budgets. These trends are likely to increase the challenge of deciding where and when to invest in R&D and managing regulatory risks.
Evotec’s solution – Providing what the Biopharma R&D industry needs
We believe the existing capital-inefficient R&D model with its fully integrated, pharma-like value chains is no longer sustainable and, most importantly, no longer competitive especially when it comes to the development of medicines for small patient populations, be it precision medicines for specific patient segments or medicines for rare diseases. We deliver critical solutions such as enhanced speed to the clinic, better prediction of clinical efficacy and reduced manufacturing costs. We can deliver these critical solutions through a combination of:
| ● | Biology-driven patient-specific disease understanding and -insights. |
| ● | Leadership in data generation, data analytics and AI/ML-supported efficacy and safety prediction. |
| ● | Modality agnostic expertise (e.g.,small molecule, biologics, cell therapy among others) that helps to make the drugs of our partners precise, affordable, and more accessible. |
We believe that the future of drug discovery and development requires the integration of different disciplines and approaches to generate treatments that are patient-relevant, disease-modifying and have curative potential. Our proprietary discovery and development platforms leverage data, operational efficiencies, and technological capabilities with the goal of driving rapid progress and successful outcomes in the early stages of the R&D process.
The key criterion for our decision-making is patient-relevant data, which facilitates a more stringent project prioritization cascade than typically observable in the industry. We can generate disease profiles at a large scale, providing a significant foundation of knowledge on which to base disease modeling and other drug discovery efforts. Our large suite of automated platforms ensures data integrity, prompt test responses and productivity. We create unique analytical packages for both our own programs and our partners’ programs, customized for each phase of development. Backed by a fully integrated drug discovery platform, all approaches are designed to contribute to the goal of improving productivity for our partners and increasing the number of our own assets, derived from our platforms, alliances as well as equity investments.
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PanOmics data generation—Industrialized high-throughput multi-omics platform.
Our approach to precision medicine is based on multi-omics. Generally, omics technologies are widely available and often used, however they are not routinely applied to drug discovery and development. For example, when it comes to genome sequencing, the industry has simply not sequenced enough genomes and effectively connected these to medical data to learn what the average genome tells us about expressed phenotypic characteristics. This means that genome sequences only provide a glimpse of a patient’s predispositions to disease and do not measure disease status or disease progression. For this, transcriptome and proteome data are needed.
Transcriptomics and proteomics allow us to measure directly how a genome interacts with the environment in the context of an organ, tissue, or cell. As transcriptomics and proteomics are unbiased and provide comprehensive readouts, they are crucial for a better understanding of disease processes and disease-relevant molecular mechanisms. These technologies have not been scaled to a similar extent as genome sequencing. We believe the development of higher throughput transcriptomics and proteomics will allow for the routine use of these technologies across the drug development value chain. The two key drivers are lower costs to generate data and the adoption of machine-learning tools that support the analysis of big omics data.
We have been particularly focused on industrializing our transcriptomics and proteomics platforms so that they can be fully integrated into our mainstream drug discovery processes. We believe our proprietary multi-omics data generation platform, PanOmics, is industry-leading in terms of throughput, robustness, and cost efficiency, in the fields of transcriptomic and proteomic analysis.
ScreenSeq—High-throughput transcriptomics
High-throughput transcriptomics is necessary to build large molecular patient and drug discovery databases effectively. We have built an industry-leading high-throughput transcriptomics platform called ScreenSeq, which is able to run single-cell sequencing analysis on tissues from thousands of patients.
ScreenSeq is run in a 384 well, high-throughput format, designed to run screens of up to 100,000 samples or compounds, which more than covers the requirements for any typical screen. The detection limit is around 15,000 genes, exceeding the requirements needed for most purposes. ScreenSeq works for most tissues from animals or humans, which allows us to effectively bridge the gap between pre-clinic and clinic. Finally, we have ensured that all of this can be done at reasonable costs for the vast amount of information a transcriptome analysis provides for every single compound.
ScreenPep—High-throughput proteomics
Like ScreenSeq for high throughput transcriptomics, our scientists have developed ScreenPep, providing what we believe is unparalleled throughput in proteomics, while maintaining the highest quality standards regarding proteome coverage and reproducibility. As the proteome provides particularly essential information on the status of a cell or tissue, we have worked to improve the throughput of our proteomics platform.
iPSC—A new paradigm in human disease modeling
To accelerate the paradigm shift toward precision medicine, since 2012 we have developed an industrialized platform that builds patient-derived assay systems and disease models through iPSC technology (E.iPSC). We have focused on industrializing iPSC-based drug screening so that we can increase the reproducibility and robustness of such screening. We have achieved industrialization by standardizing and scaling up the process of creating patient-derived iPSC for disease modeling and drug screening.
We initially developed E.iPSC as a platform to develop human disease models to overcome deficiencies associated with animal models for CNS indications but have since expanded its applicability to cover multiple therapeutic areas such as cardiovascular, metabolic, oncology, endocrinology, and ophthalmology, among others. We anticipate that iPSC-based disease models will have broad applicability in multiple diseases that have been untreatable due to the absence of robust disease models or due to prior disease models not leading to viable treatment approaches.
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Neurological diseases, such as Amyotrophic lateral sclerosis (“ALS”) and Huntington’s disease, remain a major challenge for therapeutic drug development due to poor understanding of disease pathophysiology and insufficient representation of these diseases in animal models. Furthermore, in several cases, positive efficacy results observed in pre-clinical animal models have not been reproduced in clinical trials. Based on our expertise in CNS diseases, we believe that existing disease models in this field are suboptimal because the use of immortalized or primary cells has limited disease relevance and is not scalable. For these reasons, we believe it is essential to develop better predictive, ideally human, disease models that generally reflect human disease and disease phenotypes more accurately. Accordingly, we attempt to achieve this objective through the application of our iPSC platform, which is focused on patient-derived iPSC models because they are more suitable for modeling neuronal diseases than other systems.
iPSCs can be reprogrammed from various patient cells (e.g., skin biopsies or blood) and can proliferate unlimitedly and differentiate into almost any cell type of the human body. Most importantly, they have been shown to replicate disease mechanisms that are found in humans. With our iPSC system, animal models are only used for pharmacokinetic and pharmacodynamics studies to determine whether a compound reaches the specific tissue and is effective there. Such compounds are then tested on various patient in vitro models before moving into clinical trial testing. This allows us to stratify patient populations and explore at the outset whether a drug is effective for all patients or only subpopulations. With this, we obtain highly valuable information for clinical trial design, so we can ensure that we not only select the relevant patients for clinical studies but also use this new drug with relevant patients in a commercial setting.
For accurate disease modeling, it is essential that all protocols we establish work across multiple iPSC lines to capture the highly diverse genetic causes for many diseases. Together with our partners, we have generated over 350 high-quality iPSC lines according to patient consents and standardized reprogramming methods. The over 350 patient-derived iPSC bank covers a broad range of diseases including Amyotrophic lateral sclerosis, Frontotemporal dementia, Parkinson’s disease, Huntington’s disease, retinopathies, lysosomal storage diseases and other neurodegenerative diseases. We are also advancing our stem cell research platform for disease modeling and screening to develop reliable, scalable, and automated manufacturing processes. All our protocols have been simplified, shortened wherever possible and optimized for high reproducibility and cellular yield. This is an essential requirement for large-scale manufacturing in a bioreactor format and the generation of large-scale batches of qualified cells for screening. All cells are seeded onto 384-well plates and handled in an automated fashion.
A first clinical trial with EVT8683, a small molecule drug candidate, originally identified in a phenotypic screen using an iPSC-based disease model commenced in end of 2021. The candidate molecule has a novel mechanism in neurodegeneration derived from our iPSC-based disease models. This program progressed to the clinic in less than five years as part of our broad and exclusive neurodegenerative disease collaboration with Bristol Myers Squibb (“BMS”). More broadly in iPSC, we have developed disease models across more than 15 disease areas, for which our main alliances include neurodegeneration and Huntington’s disease. To continue to build our capabilities, we intend to expand our iPSC capacity in Hamburg, Germany, by constructing a new building “The Lighthouse of iPSC” with an expected year of completion of 2024.
E.MPD – Evotec’s Molecular Patient Database
E.MPD Case study: Leading position in the field of CKD
An example of the capabilities of our PanOmics platform is our molecular patient-derived disease database in the field of CKD. CKD is far from uniform, so we believe that gaining a better insight into the molecular level is the only way to develop curative therapies. For example, the category of glomerular kidney diseases consists of many different diseases that are driven by vastly different disease mechanisms. Only if these mechanisms are better defined and understood will we be able to develop better medicines.
To develop a comprehensive patient derived database in the field of CKD, we entered a collaboration with the National Unified Renal Translational Research Enterprise (“NURTuRE”) consortium in the United Kingdom in 2017. NURTuRE brings together a consortium of leading kidney disease companies, academic institutions, and pharmaceutical companies to share and advance cutting-edge disease processes, platforms, and networks to advance research in nephrology. At the start of our collaboration, the consortium had assembled one of the largest CKD databases worldwide with about 4,000 patients comprised of complete clinical patient profiles including all standard diagnostics and test results as well as treatments. The NURTuRE consortium consists of United Kingdom-based academic institutions coordinated by Kidney Research UK and select industry partners. The aim of the consortium is to provide access to thousands of kidney patient-derived samples and data sets to characterize human pathology and to provide detailed histological and molecular analysis.
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Utilizing the PanOmics data generation platforms, we conducted molecular profiling of patient tissues and samples in the database and thereby generated crucial molecular patient data required to drive precision medicine approaches in CKD. We have continuously expanded this database, which is based on data from over 12,000 CKD patients. To our knowledge, this constitutes by far the largest CKD patient molecular database worldwide and now constitutes more than six hundred billion data points according to our internal calculations.
Based on the strength of our molecular CKD patient database, we have built four partnerships in kidney diseases in the last five years with prominent pharmaceutical companies such as Bayer, Novo Nordisk, Eli Lilly, and Chinook (now a Novartis company) . Our collaborations are structured as multi-target agreements pursuant to which an undefined number of targets may be pursued. Our agreements allow us to scale our business via entering multiple collaborations in the same disease area. We and our partners share responsibilities during discovery and pre-clinical development. If a candidate progresses to clinical development, our partner is fully responsible, financially, and operationally, for development, regulatory approval, and commercialization, and we have the right to receive R&D and sales milestones, as well as royalties on commercial sales. The research term is approximately five years. The agreements expire upon the expiry of the last patent of the asset developed under the agreement, unless terminated earlier by either party. The agreements permit our counterparties to terminate the agreement without cause by giving written notice, usually six months. Either party may terminate the agreements prematurely for cause after the other party’s uncured material breach or bankruptcy or insolvency. See “Risk Factors—our business depends on our and our partners’ success in innovation and drug development, which is highly uncertain.”
E.MPD - Expanding from CKD to other disease areas.
While our molecular patient database in CKD is the most comprehensive set of data at this stage, we aim to advance several additional proprietary molecular patient databases in other disease areas (e.g., Oncology, Cardiology) by adding samples from more patients. The opportunity to derive new targets and therapies in these disease areas is tremendous, and we aim to capitalize on these databases via additional strategic alliances.
Deep understanding of biology with molecular signatures - Molecular Patient Database (E.MPD)
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PanHunter — Advanced multi-omics data analysis and prediction platform
With industrialized systems for generating high-throughput data, the amount of genomics, transcriptomics, proteomics, and metabolomics data (hereafter omics data) generated is growing exponentially. More omics data have been generated in the last two years than in all previous years combined. To ensure disease relevance and patient centricity in the drug discovery process, such omics datasets must be correlated with preclinical and clinical metadata as early as possible. These datasets then contain an overwhelming amount of information about each patient’s condition, molecular biology context, and causes of disease. To gain insights from this vast number of high-dimensional datasets, sophisticated computational analysis is required.
PanHunter addresses these challenges as it is an enterprise-level multi-omics data analysis platform that enables scientists to work with large data sets in a very user-friendly way. The platform consolidates the analysis of various data sets, including clinical data (demographic information, medication, co-morbidities), metadata (gene/protein information, experimental parameters), chemical data (structures, compound information, drug databases), as well as knowledge from the public domain (datasets and literature information), biomolecular databases and other resources (e.g., Wikipathways).
Having developed and successfully deployed PanHunter internally and in industry-defining drug discovery partnerships over many years, Evotec made PanHunter available to its collaborators and partners as a software-as-a-service (“SaaS”) product in 2022, after investing significantly in the platform’s additional scalability, security, and performance.
Once data is uploaded to PanHunter, the platform allows users to freely interact and combine data in a web-based system. Results are presented immediately and can be interpreted or used as input for subsequent steps of data analysis. This rapid feedback is a key advantage of PanHunter that distinguishes it from other tools, particularly the classical pipelining approach in bioinformatics. Users, typically biologists, computational biologists, or bioinformaticians, can accelerate their research by having all the tools available in one system: from initial dimensionality reduction plots to differential gene expression analyses to very detailed molecular pathway analyses, signature generation, gene set enrichments, meta-analyses, and many options for creating plots to visualize and support results. For specific data, such as single-cell or single-nucleus transcriptomics, specialized applications are provided to facilitate the analysis of large datasets. Using machine learning, the PanHunter platform helps derive drug signatures or cell-type annotations that serve as references for future studies. In this way, PanHunter provides sophisticated data mining to a wide range of scientists who do not necessarily have a bioinformatics background. It also provides an entry point into more advanced machine learning or AI approaches.
An example of the versatility of PanHunter, here in combination with PanOmics, is our industry-leading position in the prediction of drug-induced liver injury (“DILI”) given the appropriate inputs. Liver toxicity accounts for about 18% of drug withdrawals from the market. By the time these failures occur, costs are already material. With better tox-prediction available at the discovery stage, these failure rates have the potential to be reduced dramatically. In our models, the use of multi-omic assays / transcriptomics with PanHunter has resulted in a superior prediction rate for DILI of 86%. This compares with the current gold standard relying on high-content imaging endpoints, which has a 70% prediction rate, and animal models, which has prediction rates as low as 50%.
Aside from toxicity prediction, we believe that better ways to evidence the efficacy of drug candidates are needed. In our view, this can only be achieved by linking patient-derived data generation with a suitable data analysis platform like PanHunter. Over 54% of drugs in Phase III, clinical trials fail. Of these, 57% fail due to inadequate efficacy, which means that many projects continue for many years pursuing the wrong target or developing compounds that are simply not good enough. Ultimately, only approximately 9% of Phase I biologics receive approval. For this reason, there should be more emphasis than ever on demonstrating the disease relevance of targets and compounds at a much earlier stage in the R&D process.
In addition, we believe it is necessary to measure disease relevance relative to the molecular patient profiles that we know are associated with the disease. As outlined above, we believe this can be achieved through a greater focus on unbiased and comprehensive measurements such as transcriptomics and proteomics, which are uniquely suited to measuring disease status and progression because they capture more complex molecular disease profiles. We believe that AI-based analytical tools can support the identification of mechanisms and targets that can be uniquely linked to patient subpopulations defined by molecular phenotypes to achieve relevant outcomes in a reasonable timeframe.
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iPSC-based “off-the-shelf” cell therapies based on induced-pluripotent stem cells
The iPSC platform is a central capability / platform to develop the next generation of allogeneic cell-based therapies. Our iPSC cell therapy portfolio spans metabolic diseases, immuno-oncology, immunological diseases and heart repair.
From a platform perspective, we have built an integrated platform that allows us to carry out projects from inception to clinical testing. This includes cGMP production capacities for cell therapeutics. Combined with the in-house pre-clinical safety and regulatory expertise in the cell therapy space, we have all process steps and required expertise in-house to deliver product candidates for iPSC-based cell therapies to the clinic.
Our most advanced candidate in the field of iPSC-based regenerative medicine is aimed to cure patients suffering from type I diabetes. In in vivo models, we have demonstrated a durable normalization of blood glucose levels with our iPSC-derived islet-like clusters that can also confer long-lasting normoglycemia at the human glucose set point. The first generation of iPSC-based regenerative medicines in diabetes was partnered in May 2022. On May 17, 2022, Evotec and Sernova announced an exclusive strategic partnership for iPSC-based beta cell replacement therapy. Our iPSC-based beta cells will be combined with Sernova’s proprietary Cell Pouch™, a medical device enabling vascularization of the cell implant and thus ensures long-term survival and optimal function in patients. The decision was made based on favorable results seen from the combination of primary donor islets and Cell Pouch, which has achieved long-lasting therapeutic results in patients enrolled in Sernova’s US-based Phase I/II clinical trial. Over the course of 2023, we have made continuous progress. Long-lasting efficacy of Evotec’s iPSC-derived islet-like clusters transplanted in Sernova’s Cell Pouch in a T1D pre-clinical model has been shown to be highly robust and reproducible. We are continuing to optimize and advance the project for use in additional IND enabling studies and clinical trials.
In immuno-oncology, we are building a portfolio of “off the shelf” iPSC-derived immune effector cell projects to overcome many of the hurdles of current autologous cell therapies such as long vein-to-vein times, limited manufacturing reliability, logistic challenges, and high prices. Our strategy focusses on developing one of the broadest pipelines of iPSC-derived immune cell types in the industry including iPSC derived NK Cells (EVOcells iNKs), Macrophages (EVOcells iM) as well as αßT-cells and γδT-cells. These cell types are combined with different tumor targeting moieties such as Chimeric Antigen Receptors (“CARs”), T cell receptors (“TCRs”) or bi-specific antibodies thus creating a wealth of high value projects with the potential to target different tumor indications, including solid tumor. We have signed a first strategic collaboration in this field with a leading pharma company jointly developing therapies based on iPSC-based T cells, which provides external validation of our technology platform and strategy.
Additionally iPSC-derived immune cells are also useful to treat multiple immunological disorders. We are thus also utilizing our iPS cell therapy technologies for portfolio building in this area by developing innovation projects to treat Lupus, fibrosis and related diseases.
Just – Evotec Biologics
Just – Evotec Biologics is our advanced approach to designing, discovering, developing, and manufacturing modern bio-therapeutics. We believe that Just – Evotec Biologics positions us well to establish further significant long-term, integrated partnerships with the expansion of our solutions into highly efficient and flexible biologics manufacturing. This differentiated offering is available to our partners on a fee-for-service and/or FTE-rates-based model as well as through arrangements that involve milestones and royalties.
Evotec acquired Just Biotherapeutics (subsequently renamed Just—Evotec Biologics) in 2019, which represented our entry into the large and growing market for commercial biologics and expanded our multi-modality capabilities. The founding and original concept of Just—Evotec Biologics was to create an agile, flexible, and cost-effective method of biologics discovery, development, and manufacture to enable affordable global access to modern biologics therapies. This powerful, horizontally integrated end-to-end system is called J.DESIGN.
J.DESIGN is our in-house integrated technology platform designed to accelerate development and provide superior manufacturing process control to produce higher-quality molecules at the lowest possible cost. J.DESIGN is directed particularly toward antibody and antibody-like biotherapeutics. One of the key strengths of the platform is the broad scope and integration from discovery through manufacturing and facility design. All operations are integrated under their individual elements, which are known as J.DISCOVERY, J.MD, JP3 and J.POD.
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The resulting efficiency of our fully integrated end-to-end platform offers partners the opportunity to capitalize on more agile and cost-effective manufacturing, scaled accordingly for the stage of development and size of the patient population. This flexibility is of critical importance as novel biologics increasingly enter highly complex disease indications with less certain outcomes. Additionally, we anticipate that increased speed and flexibility as well as reduced costs of the discovery and development processes will allow us to gain significant market share in rare disease and orphan indications as well as in the field of biosimilars where pricing can be competitive.
We are applying AI and ML to create and select high-quality molecules in discovery that in turn drive more productive manufacturing processes. Our technology enables continuous feedback, machine learning and model refinement to drive further improvements in speed, quality, and cost. This learning loop is best represented as a circular “flywheel,” which gets better and more efficient with each turn.
J.DISCOVERY—Antibody Discovery
To create antibody therapeutics, we utilize our J.DISCOVERY approach to build a large and diverse antibody library we call J.HAL (Just-Humanoid Antibody Library). The DNA sequences coding for the antibodies in J.HAL is computationally created using machine-based deep neural network learning through algorithms termed Generative Adversarial Networks (“GANs”). The GANs used to build J.HAL are trained on hundreds of thousands of natural human antibody sequences. Since we can train J.HAL with different sets of antibodies exhibiting a variety of biophysical properties, we can bias J.HAL to generate Deoxyribonucleic acid (“DNA”) sequences coding for antibodies that can be developed and manufactured efficiently and may have superior properties for addressing a specific disease target. We call the billions of antibody sequences in our J.HAL library “Humanoid” because they are indistinguishable from human antibodies, even though they are created computationally. The full power of disease knowledge and pharmacology expertise across Evotec ensures comprehensive pharmacological and safety understanding in tandem with developability and manufacturability. As we have control over the processes of discovery, development, and manufacturing, we can feed this information back and dramatically expand J.HAL based on experience and validation. The desired outcome is the creation of antibodies that are safe, developed quickly and cost-effectively and with the potential of greater efficacy.
J.MD—Molecule Design
J.MD is the molecule design aspect of J.DESIGN that reviews and improves native antibody sequences—derived from either J.HAL or any other source – to enhance their manufacturability and stability. Using Abacus, an in-house suite of proprietary computational tools, we create learning algorithms that enable scientists to predict the best molecules and conditions for development. Molecules are then evaluated using assays that indicate how well a molecule is expressed, purified, and formulated. Any information learned from evaluating the molecules is subsequently used to improve further the tool set for future molecules.
JP3—Process and Product Platform
JP3 is J.DESIGN’s processing and product design arm complete with proprietary cell lines, vectors, and media with process options for fed-batch, intensified fed-batch, and continuous culture. This technology also includes chromatography, filtration, and viral clearance capabilities for the removal of impurities. To optimize the storage stability of products, JP3 comes with biophysical and formulation development tools. The designing tools also feature high-resolution analytical capabilities including a mass spectrometry-based multi-attribute method (“MAM”).
J.POD—Manufacturing and Plant Design
The ultimate physical representation of the transformation of the biologics discovery and development continuum is the J.POD facility. To remain competitive, companies require flexible manufacturing solutions with the right capacity at the right time and smart, high-yielding processes to increase efficiency by cost-effective and faster manufacturing without any sacrifices to quality and safety. J.POD is the manufacturing and plant design aspect of J.DESIGN, which achieves these objectives.
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J.POD accelerates the development of highly productive processes that can be executed in relatively small unit operations and still make enough product to meet almost all commercial market needs in a single facility. These highly intensified processes reduce the size of unit operations to fit into relatively small, flexible “PODs” or cleanrooms, and become the core manufacturing space in a J.POD facility. Since the entire process train uses single-use technology, central and Capex intense utilities like “clean in place” or “sterilize in place” systems are eliminated, as well as the large amount of stainless-steel piping and large stainless-steel vessels that must be precisely built and validated. In addition, PODs, and the equipment they contain can be built and assembled while the plant is being constructed so that the time and complexity of validation are dramatically reduced. The modular, flexible, and less capital intense setup creates the opportunity for a global network of J.POD facilities, leading to better and cost-effective access to biologics in areas of the world that have not been served thus far.
Finally, instead of increasing the size of bioreactors and processing steps to expand capacity (as in traditional large-scale manufacturing facilities), additional bioreactors of the same size are essentially “cloned.” In essence, we “scale-out” rather than “scale-up” and effectively reduce scale-up risks by manufacturing at the same scale from early clinical development through commercial manufacturing. Our processes are highly “intensified,” using continuous perfusion and connected downstream processing to make large amounts of high-quality drug substance with a relatively small bioprocessing footprint.
We completed construction on our first J.POD manufacturing facility located in Redmond, Washington in August 2021. Ground-breaking of the second facility in Toulouse, France took place in September 2022, and we anticipate the European facility to be fully operational in the first quarter of 2025. Our vision is to create a global network of highly standardized manufacturing sites that can serve local demand.
In our view, the ultimate external proof of concept was achieved after the opening of the J.POD facility in 2022 with the signing of three contract extensions/expansions.
In August 2022, Just – Evotec Biologics, expanded its multi-year partnership with Alpine Immune Sciences for the development of a commercial process for ALPN-303, an engineered transmembrane activator and CAML (“Calcium modulating ligand”) interactor (“TACI”) domain with significantly improved potency against the B cell cytokines B cell activating factor (“BAFF”) and APRIL, being developed for the treatment of systemic lupus erythematosus and other B cell-mediated inflammatory and autoimmune diseases. The contract is a continuation of the first-in-human program initiated in 2020 in which Just – Evotec Biologics delivered drug substance materials using the J.DESIGN continuous manufacturing platform for Alpine’s ongoing Phase I study and anticipated Phase II studies of ALPN-303. Under the expanded contract, Just – Evotec Biologics will leverage its data-driven technology platform to develop a commercial manufacturing process for ALPN-303. The program includes upstream and downstream processes, analytical methods, and formulation development with a view to supporting commercial manufacturing of ALPN 303. Commercial process development activities will be performed at Just – Evotec Biologics’ J.POD biomanufacturing facility in Redmond, Washington.
In September 2022, the U.S. Department of Defense (“DOD”) has awarded Just – Evotec Biologics a contract valued up to $ 49.9 million for the rapid development of mAb-based drug product prototypes targeting plague. Plague, an infectious disease caused by the bacterium Yersinia pestis (“Y. pestis”), is one of the designated targets of interest under the DOD’s Accelerated Antibodies Program. Under the contract, Just – Evotec Biologics will develop mAb-based drug product prototype(s) from sequence discovery or evaluation of existing mAbs to completion of Phase I first-in-human (“FIH”) clinical trials. To enable rapid development, Just – Evotec Biologics will leverage its data-driven, highly automated end-to-end biologics technology platform, J.DESIGN, that includes antibody discovery (J.HAL), molecular optimization, cell line and process development, and continuous manufacturing at its J.POD Redmond, Washington (U.S.) facility. In addition, Evotec will provide pre-clinical and clinical capabilities for mAb prophylactic approvals.
In May 2023, Just - Evotec Biologics and Sandoz launched a multi-year, long-term tech partnership for the development and subsequent manufacturing of multiple biosimilars. Just - Evotec Biologics received a double-digit-million upfront payment and is entitled to benefit from future payments of up to $640 million dependent on successful development progress as well as additional payments dependent on progress into commercial manufacturing. In the second full year after opening the site in Redmond, the order book of Just – Evotec Biologics increased by a factor of more than 8 to more than $800 million as of December 31, 2023 compared to December 31, 2022 ($100 million). Just - Evotec Biologics started ahead of plan mainly based on closing of the tech partnership with Sandoz, signed in May 2023. On July 8 2024, the Group announced that it was expanding the technology partnership with Biosimilars potentially added to the development pipeline.
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End-to-End Shared R&D - Integrated business-to-business platform for increased probabilities of success from target to the patient
We believe that our End-to-End Shared R&D platform, differentiates us from competition as the organization is able to deliver fully integrated drug discovery and development programs to our partners. Our platform possesses capabilities across the early stages of discovery, including modern, AI-enabled molecule design, biomarker selection, human pharmacokinetics (“PK”) testing, clinical trial planning, safety assessment and manufacturability in the early stages of precision medicine discovery. This is achieved by seamlessly integrating firmly-established R&D capabilities, such as screening platforms, deep disease knowledge and translational models, with cutting-edge proprietary technologies that can—in combination with knowledge of our experienced scientists—result in significantly improved speed, quality, and cost of drug discovery. Our highly qualified and experienced team is what makes it unique. Our fully integrated, industrialized, high quality and comprehensive infrastructure is utilized across all our core collaboration routes.
Our expertise in deep learning and computational approaches and the integration of such knowledge across the full value chain of drug discovery and development are industry-leading. We possess computational capabilities in the essential aspects of drug discovery and early development, including, for example, molecular design, product optimization, extensive human pharmacokinetic parameters and dose predictions, toxicity prediction and design tools. Our biomarker strategy and resources provide tailor-made biomarker solutions using state-of-the-art technologies. From our position of strength in chemistry and small molecules, we have added capabilities for additional modalities, such as biologics, proteins, ribonucleic acid (“RNA”), and antibody-drug conjugates. Our drug discovery therapeutic area expertise and capabilities covers diabetes and its complications, fibrosis, infectious diseases, CNS diseases, oncology, pain and inflammation, immunology, rare diseases, respiratory diseases, and women’s health. Continuous training in technology and leadership for scientists at all levels is designed to meet or exceed industry standards.
At Evotec, we approach drug discovery and development as a continuum instead of disparate processes. We focus on problem solving and careful planning at the very earliest stage to design for the maximum potential success of subsequent clinical development. By focusing on the continuum, we allow for smooth transitioning from discovery and preclinical development into the clinic through our INDIGO solution. We believe INDIGO provides best-in-class governance structures and capabilities to supply fit-for-purpose resourcing, key expertise, decision-gated strategies, clear and timely communication and seamless interactions between our partners and our functional teams. Within the structure of a project or partnership, we focus on the success of the inventive step in every discipline through a combination of knowledge, experience, computational power, and process excellence.
Business models
Our business model is based on three value-creating pillars: A “Fee-for-service” and FTE-based funding model; Pipeline building and EVOequity.
“Fee-for-service” and FTE-based funding model
Revenues consist mainly of service fees and FTE-based research payments.
As an external innovation partner to the life science industry, we provide stand-alone or fully integrated drug discovery and development solutions to our partners using our industrialized, high quality and comprehensive infrastructure. Various capabilities can be grouped into an integrated service combining various steps along the drug discovery and development chain. The “fee-for-service model” usually applies where no intellectual property of Evotec is involved or no essential proprietary technology platforms (e.g., PanOmics, PanHunter, iPSC, proprietary molecular patient data) are used.
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Our solutions can provide unparalleled breadth and depth to clients. We can support our partners’ programs at all phases of the chemical value stream (hit creation, expansion, hit-to-lead, lead optimization and development readiness) and from early target identification through to the manufacturing of compounds for clinical and commercial purposes. We also possess capabilities across all modalities, target types, routes of administration and disease areas. Typical examples of fee-for-service work packages would include, without limitation, high-throughput screening campaigns, sample management, ADME-tox tests or certain chemistry development services, including API manufacturing.
In addition, to reflect the unpredictable nature of multi-year research efforts, many fully integrated projects with partners are structured around flexible FTE pools, compensated at blended FTE rates. Progress is monitored closely through active project management and joint steering committees with the partner, thus ensuring the most relevant science and capabilities are brought to bear against the needs of the project at the right time. We believe the quality and breadth of this real drug discovery engine is highly differentiated in the market.
In 2023, 66% of our third-party revenues were derived from EVT Execute, which mainly includes fee-for-service and FTE-rates-based revenues. Just – Evotec Biologics is also recognized within EVT Execute. Most revenues are still derived from FTE rates and FFS contracts. Gradually, revenues derived from manufacturing add to total segment revenues.
FTE-rates-based revenues are also a source for revenues within EVT Innovate, in addition to milestones and potential royalties. Driven by favorable market dynamics and robust demand for pharmaceutical outsourcing services, we expect the fee-for-service and FTE-rates-based business to grow by mid to high single digits in the near term. Fee-for-service and FTE-rates will continue to remain a value driver going forward but as drug discovery and development evolve, we foresee certain work packages transitioning away from fee-for-service into more integrated alliances.
With an increase in demand for Evotec’s proprietary and premium platforms, (e.g., PanOmics and PanHunter, molecular patient data and iPSC drug discovery), we have sought to enter contracts with customers for these services that expand beyond FTE rates to also include success-based components, such as milestones and potential royalties. As an example, target identification and validation services have historically been offered on an FTE-rate basis. However, with transcriptomic and proteomic profiling across cells and tissues followed by bioinformatics-driven data mining and hypothesis building capability of our platforms, we seek to structure integrated alliances in which we will generate FTE-based revenue from the delivery of services, as well as potential milestones and royalties. The most prominent example of such an evolution is our alliance with BMS targeting neurodegenerative diseases, which has so far resulted in a first clinical phase I trial with additional assets being progressed in the discovery and development stages.
Key Performance Metrics for our Fee-for-Service and FTE-based Business models
1) Share of Annual Repeat Business
We have demonstrated solid customer retention rates, as defined by the percentage of revenues from customers with whom we had a relationship within the prior year, above 90% in each of the last three years. We review our repeat business on a yearly basis. Repeat business was 93% in 2023 and 92% in 2022, respectively.
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2) Customer Evolution and Contribution
The number of our customer alliances has expanded significantly in recent years, providing further validation of our services provided. During 2023, we added 298 new customers compared to 325 in 2022. The number of customer alliances that generate revenues of more than €1.0 million per year has decreased to 102 in 2023 (2022: 118), or 12% (2022: 14%) of total customers in the last two years, in part caused by the interruption of the business in the second quarter after the cyber-attack.
3) Increased revenue share from top ten customers
Our customer and revenue bases have become more concentrated over the last three years. Our top ten customers’ contribution to total revenues amounted to 47% in 2023 versus 39% in 2022 and 42% in 2021. Evotec’s largest three customers by revenue collectively accounted for 35% of revenues in 2023. In 2022, Evotec’s three largest customers by revenue contributed 25% to revenues. Other than Bristol Meyers Squibb, no single customer contributed more than 10% of group revenues.
Pipeline co-creation—Co-owned and Shared assets
We leverage our proprietary technology platforms to develop new drug discovery projects, assets, and platforms, both internally and through collaborations. This approach allows us to create starting points for the later development of strategic partnerships with leading pharmaceutical and biotechnology companies. These collaborations generally involve a combination of upfront payments, ongoing research payments, and significant financial upside through milestones and royalties. They enable the sharing of cost and risk. The aim of these collaborations is to develop R&D projects faster and more efficiently and to generate faster returns on investments. With an increasing demand for our proprietary technology platforms, we expect to enter collaborations involving success-based milestone payments and royalties. Our goal is to increase the revenue contribution from these collaborations over time through the maturation of our pipeline significantly by 2025.
Benefits to us from our strategy to co-create pipelines include:
| ● | Milestones and royalties-based revenue to secure and accelerate profitability. |
| ● | A risk-reduced development pathway for drugs given the ability to combine Evotec and partner R&D capabilities and expertise. |
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| ● | Deepen our knowledge base of high-quality R&D capabilities; and |
| ● | Validation to build out a broad early-stage pipeline. |
| ● | Superior organic growth based on high-margin contracts |
| ● | Expansion of existing and conclusion of new integrated service alliances (e.g., approval of SKY Covione (COVID-19) with SK bioscience in South Korea, first royalties) |
Pipeline Projects - Number of projects is constantly growing
The table below outlines our pipeline assets by therapeutic area and stage of development. Our partnered pipeline includes those assets we have developed and licensed or assigned to partners for clinical development and commercialization as well as the assets of our partners for which we are entitled to receive potential royalty or milestone payments (dark purple boxes). Our unpartnered pipeline consists of assets we are developing internally but with whom we have not yet partnered. Our equity pipeline is comprised of the assets under development by companies in which we have made an equity contribution through EVOequity. We expect to realize returns on our equity pipeline primarily from successful exits but also from fee-for-service and FTE-rate-based revenues from these companies. Our BRIDGE’s (Biomedical Research, Innovation & Development Generation Efficiency) pipeline represents the assets under development through our collaborations with academic institutional partners as part of our project incubation program to promote the early development of academic research. Note that the assets shown here as part of our equity and BRIDGEs pipelines are not included in the number of our pipeline assets described elsewhere in this annual report.
Since 2015, the number of our assets has more than doubled to more than 140 with one approved asset and 18 disclosed assets in clinical development at the end of 2023. As of December 31, 2023, of the pipeline assets, one obtained market approval in South Korea in 2022, one obtained market approval in China in 2023, two are in Phase II, and 14 are in Phase I. We define our pipeline to include candidates that we wholly own and those for which we have the right to receive royalty or milestone payments. For candidates for which we have the right to receive royalty or milestone payments, we, in most cases, will have initially developed them and subsequently licensed or assigned to partners for continued pre-clinical and clinical development. They also include candidates that have been initially developed by our partners and that have become the subject of a joint research project pursuant to which we are eligible for royalty or milestone payments.
Beyond therapeutic areas, we have also successfully expanded our pipeline across multiple modalities. In 2015, our therapeutic assets were exclusively small molecules. In contrast, in 2023, more than ten assets were derived from cell and gene therapy, more than 20 from biologics, more than 90 from small molecules and more than ten early-stage projects where several modalities are being investigated. Given the breadth and depth of our pipeline across therapeutic areas, modalities, and stages of development, we believe that the risk-reward profile of our pipeline is unique in the industry.
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1) Also includes Women‘s Health, Respiratory projects.
EVOequity
We facilitate the acceleration of innovation as an operational venture capitalist by providing capital and access to our industrialized and integrated technology platforms, expertise, and network. We make equity investments in products, technology platforms and companies through which we obtain early access to innovation and derive upside through our role as an operational partner. We see significant potential for value creation from EVOequity over the coming years from new partnerships, clinical successes, and positive commercial developments because we expect to drive the valuation of individual portfolio companies. We expect to realize returns on investments both from successful exits from our portfolio companies and fee-for-service and FTE-rates-based revenues with our portfolio companies.
We recognize various starting points to fuel our EVOequity portfolio. One of the key sources is risk-shared venture creation involving spin-outs of our proprietary assets into separate legal entities or joint ventures with partners. We also invest in early-stage development companies that start out as our customers and engage us to conduct for them drug discovery work on our platforms. Investing in those companies helps us create long-term relationships and facilitates access to innovation in the treatment areas in which we specialize. These companies may originate from our Biomedical Research, Innovation & Development Generation Efficiency (BRIDGEs) program, where Evotec collaborates with academic institutions to facilitate the acceleration of academic innovation without compromising precision or safety. We also identify investment opportunities by evaluating external opportunities.
Evotec’s equity strategy started with the creation of Evotec’s spinout of Topas Therapeutics in 2016. Since then, our portfolio of equity holdings has grown steadily, and as of December 31, 2023, we have 31 equity engagements in our equity pipeline. Most projects are in oncology, immunology, inflammation and metabolic diseases. Assets from Carrick Therapeutics, Sernova, Topas Therapeutics and Exscientia plc. are the most advanced, with 9 active ongoing clinical trials (Phase I and II). Our ownership ranges from 0.1% to 43% in equity per company. Investments with a share greater than 20% or significant influence are recognized in our accounts “at equity”.
Many of our portfolio companies have started out as our customers or have become customers either in parallel or after making our initial equity investment.
Typically, we support the development of our equity investors’ in-house projects from early discovery up to IND-enabling studies and chemistry, manufacturing, and control.
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An important structural difference to conventional venture capital models is our operational relationship with the portfolio companies and that our investment decisions often benefit from robust datasets that we have generated in-house on our industrialized and scalable platforms. Because we believe that we can make better-informed decisions through this approach, we see realistic chances of investment returns that could exceed venture-capital-like returns. Our typical equity investment is structured in such a way that we aim to obtain control of material stakes between 20% and close to 50% in the first financing round. Subject to dilution in subsequent rounds, these holdings may vary. On a case-by-case basis, we may invest in subsequent financing rounds. In the case of spinouts, we contribute in kind to leverage our in-house capabilities and accelerate innovation.
BRIDGEs
We believe that academic settings serve as a major source and point of origination and discovery of new targets and drugs. For example, approximately 25% of drugs ultimately approved by the FDA originate from academia, according to a study published in Nature investigating the contribution of different types of organizations to drug innovation. Universities are a major source of current and future drug targets. We seek to address the lack of funding and access to expertise for translational projects from academia, which is one of the main hindrances to efficient innovation. While there is a lot of support to initiate basic research projects, funding options tend to narrow down as the development of translational projects progress and there is often a lack of commercial understanding on how to advance assets to the next stage. At the same time, there is a need for validation of academic findings on industry-grade platforms to increase data quality and reproducibility, which we address with our model.
We have positioned ourselves as a leading company for the accelerated translation of academic assets by initiating “BRIDGEs,” our project incubation program designed to accelerate and promote the early development of academic research. Through BRIDGEs, we utilize our technology platforms to facilitate the acceleration of academic innovation. The global rollout of BRIDGEs is currently underway with a geographic focus on North America, Europe, and Asia. BRIDGEs provide us with access to a broad portfolio of first-in-class therapeutics across academic institutions. We serve as the exclusive technology partner to advance projects to the next value inflection points, which enables the formation of spinout companies or collaboration with pharmaceutical companies. The entire process facilitates the decision-making process of investors trying to assess the quality of the respective projects. Through BRIDGEs, we have achieved a significant reduction in average project evaluation time an accelerated path from plan to first experiments and a speedy progress towards conclusion of experiments on industry-best-practice platforms.
Operationally, BRIDGEs fall into two categories: (i) Contractual partnerships with academic institution(s) and investors or pharma companies and (ii) equity investments into start-up studios which focus on accelerating academic projects. To date, we have created eight BRIDGE partnerships (LAB282, LAB150, beLAB2122, beLAB1407, Danube Labs, a BRIDGE with VC Amplitude Ventures and 65LAB in October 2023) and three investments into start-up studios (Autobahn Labs, Argobio and Extend). In September 2023, Evotec and Novo Nordisk announced LAB eN2,, aiming to nurture early research from academic institutions into novel therapeutics. In November 2023, Evotec expanded beLab1407 BRIDGE with BMS to include three new university partners. Under the expanded agreement, the Universities of Bristol and Glasgow as well as Queen Mary University of London (all UK) will benefit from access to funding, expertise and drug discovery and development platforms spanning multiple disease areas and modalities.
65LAB
In October 2023, we announced the launch of 65LAB, a company creation vehicle initiated by Lightstone Ventures (San Mateo, CA) and Evotec and established with Partners Clavystbio (Singapore), Leaps by Bayer (Germany), Polaris Partners, and the Polaris Innovation Fund (both Boston, MA). The first collaboration of its kind in Singapore, 65LAB was initiated to identify and accelerate the commercialization of promising research from academic and R&D institutions in Singapore, the Agency for Science, Technology and Research (“A*STAR”), the NUS and Duke-NUS Medical school (a collaboration between Duke University in North Carolina and NUS). 65LAB selects promising academic projects and invests up to US$ 1.5 million in each project over the course of 18-24 months. Upon completion, projects will be evaluated by 65LAB’s board of global investors for further investment and the creation of new companies.
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Summary of Equity Holdings, including start-up studios as of December 31, 2023
Company |
|
Focus |
|
Equity stake |
Aeovian Pharmaceuticals Inc. |
|
mTORC1 inhibitor |
% |
3.51 |
Ananke Therapeutics Inc. |
|
RNA binders’ oncology |
|
19.88 |
ArgoBio SAS |
|
Multiple |
|
10.01 |
Aurobac Therapeutics SAS |
|
Antimicrobial Resistance |
|
12.50 |
Autobahn Labs, LLC |
|
Multiple |
|
35.26 |
Blacksmith Medicines Inc. |
|
Human metalloenzymes |
|
17.94 |
Breakpoint Therapeutics GmbH |
|
DNA damage response (DDR) |
|
34.03 |
Cajal Neuroscience Inc. |
|
Neurodegenerative disease |
|
1.52 |
Carma Fund I |
|
Life Science VC |
|
10.00 |
Carrick Therapeutics Ltd. |
|
Molecular pathways in Oncology |
|
2.78 |
Celmatix Inc. |
|
reproductive medicine and fertility |
|
12.35 |
Centauri Therapeutics Ltd. |
|
Antimicrobial Resistance |
|
20.04 |
CureXsys GmbH |
|
Therapeutic exosomes |
|
43.44 |
Curie Bio LLC |
|
Life Science VC |
|
0.11 |
Curie Bio Seed Fund I LP |
|
Life Science VC |
|
2.83 |
Dark Blue Therapeutics Ltd. |
|
Oncology |
|
38.79 |
Eternygen GmbH |
|
NASH |
|
24.97 |
Exscientia Ltd. |
|
AI |
|
11.41 |
Extend S.r.l.. |
|
Multiple |
|
10.00 |
Fibrocor Therapeutics Inc. |
|
Fibrotic diseases |
|
8.38 |
Fibrocor LLP |
|
Fibrotic diseases |
|
16.26 |
IMIDomics Inc. |
|
Inflammatory diseases |
|
8.15 |
Immunitas Therapeutics Inc. |
|
Oncology |
|
5.58 |
Leon Nanodrugs GmbH |
|
Nanotechnology |
|
12.44 |
Mission BioCapital V LP |
|
Multiple |
|
3.64 |
OxVax Ltd. |
|
Immuno oncology |
|
15.33 |
Pluristyx Inc. (formerly panCella) |
|
iPSC platform |
|
5.69 |
QUANTRO Therapeutics GmbH |
|
Functional genetic and transcriptomic technologies |
|
38.79 |
Sernova Corp. |
|
Cell Therapy for Diabetes |
|
5.16 |
Topas Therapeutics GmbH |
|
Nanoparticle-based therapeutics |
|
23.61 |
Tubulis GmbH |
|
Antibody Drug Conjugates |
|
9.60 |
Intellectual Property
We seek to protect and enhance the value of our proprietary drug discovery programs as well as our technology platforms, including proprietary processes, technologies, inventions, and methods, and their application to the R&D of treatments for serious diseases and methods of manufacture through the filling of intellectual property. We pursue a multi-layered intellectual property strategy to protect our technology platforms and their application to the R&D of treatments for serious diseases. One focus of our intellectual property strategy is to provide protection for our platforms and pipeline assets currently in development. We also pursue intellectual property protection for assets that may be used in future development programs and/or that may be of interest to our partners, or otherwise may prove valuable in the field.
Patent filings protect various aspects of our technology platforms and our pipeline assets, while other aspects remain trade secrets. We also pursue other methods of protection, including seeking trademark registrations, as appropriate. Many of our intellectual property assets were developed and are owned solely by us, some have been acquired and are solely owned by us, some have been developed via collaboration and are jointly owned, and some have been licensed from third parties. We will continue to make additional patent application filings and pursue opportunities to acquire and license additional intellectual property assets, technologies, platforms, or pipeline assets, as developments arise or are identified.
As of December 31, 2023, our owned patent portfolio included more than 50 patent families, each of which includes at least one filing in the United States or Europe, and several of which are pending or granted in multiple jurisdictions.
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Below, we provide a summary of the contours of our current intellectual property portfolio as it relates to different aspects of our business.
Discovery Platform
Our discovery platform is comprised of multiple integrated components. These combined platforms allow us to deliver operational efficiencies and advanced technological capabilities to drive rapid progress and successful outcomes in the early stages of the R&D process where innovation steps are the largest and most important. In support of our discovery platform, we own a patent estate for molecular detection and other platform technologies. In addition, we have developed several patent-protected biological assays, specifically, methods to measure the chemical or biological activity of any combination of targets and compounds.
In support of our discovery platform, we own proprietary trade secrets and methods for analyzing samples. PanOmics is our proprietary approach to analyzing samples from human patients, rodents and in vitro cultures using genomics, transcriptomics, proteomics, and metabolomics. We have proprietary protocols, that we protect as trade secrets, which have been established and validated to allow for the preparation of fully intact RNA, metabolites, and proteins from several tissues from both rodent models and human patient material that are in many cases unique to Evotec. We have primary and other cell types, and proprietary immortalized cell lines that we processed in a way to allow us to perform single-cell and single-nuclei sequencing as well as so-called ScreenSeq and ScreenPep analysis. Our proprietary ScreenSeq and ScreenPep technologies are process-optimized and fully validated high-throughput transcriptomics and proteomics platforms, respectively. We have a growing proprietary database comprising diverse proprietary -omics data based on in vitro, in vivo, and human sample analysis.
We own and leverage proprietary software and datasets. PanHunter is our proprietary software solution that enables exploratory insight analysis for researchers in a convenient, web-based environment. Our software may integrate some open-source software and openly available published algorithms with our proprietary modules and data. Our proprietary modules include an infrastructure to map and interlink meta information for e.g., genes, proteins, or targets within omics data and across species barriers, a framework to store, manage, and access omics data, and an architecture for storing, cleaning, managing, and providing access to clinical data. The software includes several tools to enhance analysis, including tools for differential analysis (e.g., used to compare diseased vs. healthy samples), statistical analysis tools, and a machine learning computing tool. The PanHunter software leverages our proprietary datasets to create a prediction model for cell-type annotation.
Pipeline Assets
We have used our proprietary research platform to generate and identify patentable drug candidates with the potential for collaboration. Numerous patent applications have been generated and filed because of such activities. In some cases, we have elected to retain the pipeline asset intellectual property, and in other cases, we have out-licensed our intellectual property to third parties or transferred ownership of the intellectual property to third parties in exchange for milestone payments, royalties, or equity in their business.
As with other biotechnology and pharmaceutical companies, our ability to establish and maintain our proprietary and intellectual property position for our technology platforms and pipeline assets will depend on our success in obtaining effective patent claims and enforcing those claims if granted. There can be no assurance that any of our current or future patent applications will result in the issuance of patents or that our future issued patents (if any) will provide meaningful protection of our pipeline assets or technology. For more information regarding the risks related to our intellectual property, see the section entitled “Risk Factors—Risks Related to Our Intellectual Property.”
Government Regulation
Government authorities in the European Union, the United States and other countries and jurisdictions extensively regulate, among other things, the research, development, testing, manufacture, quality control, approval, packaging, storage, record-keeping, labeling, advertising, promotion, distribution, marketing, post- approval monitoring and reporting and import and export of pharmaceutical products. Compliance with applicable statutes and regulations and other requirements of regulatory authorities requires the expenditure of substantial time and financial resources.
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Regulation of Drugs and Biologics
In the European Union, pharmaceutical products are subject to a comprehensive scheme of regulatory requirements mainly set out at EU level, but country-specific regulations at EU member state level remain essential in many respects. These regulations exercise oversight over all aspects of our operations including, but not limited to, research, development, testing, manufacturing, and quality control. They also govern all aspects of the operations of our customers and the partners with whom we co-own pipeline assets, including assessing safety and efficacy for purposes of marketing approval, labeling, storage, record keeping, commercialization, distribution, post-approval monitoring, advertising, pricing, and more.
The process governing the approval of medicinal products in the United States generally mirrors the process in the European Union. In the United States, the FDA regulates pharmaceutical products. The Federal Food, Drug, and Cosmetic Act, the Public Health Service Act and other federal and state statutes and regulations apply to us, our customers, and our partners who develop our pipeline assets. Failure to comply with applicable U.S. requirements may subject a company to a variety of administrative or judicial sanctions, such as FDA refusal to approve pending new drug applications (“NDAs”) or biologics license applications (“BLAs”), warning or untitled letters, product recalls, product seizures, total or partial suspension of production or distribution, injunctions, fines, civil penalties, and criminal prosecution. Any agency or judicial enforcement action could have a material adverse effect on our partners or us. Before a new drug or biologic may be marketed, it must undergo extensive testing and regulatory review to determine that it is safe and effective and be approved by the FDA or other regulatory authority.
Preclinical Research
Before testing any product candidate or therapy in humans, it must undergo extensive preclinical testing. Preclinical research involves in vitro (test tube) and animal studies to evaluate the chemistry formulation and toxicity of the drug over a wide range of doses and to detect whether the product is likely to cause any of a variety of adverse conditions or diseases, including birth defects and cancer. Initial preclinical studies are conducted before any clinical testing occurs, while longer-term testing is conducted in parallel with clinical studies.
A robust package of preclinical data is required before clinical trials can begin. In the European Union, if preclinical results warrant continuing development of the product candidate, before a clinical trial may commence, applicants are required to submit a clinical trial application (“CTA”) to each country’s national health authority and an independent ethics committee. The CTA must include, among other things, a copy of the trial protocol and an investigational medicinal product dossier with supporting information, in particular preclinical data and information about the manufacture and quality of the medicinal product under investigation. In the United States, if preclinical results warrant continuing development of the product candidate the results of the studies are submitted to the FDA as part of an investigational new drug application, or IND. An IND includes, among other things, items such as preclinical data, manufacturing information, a proposed clinical protocol and an investigational plan and must be reviewed by the FDA and become effective before proposed clinical testing can begin.
Regulation of Testing Facilities
Our facilities are audited by regulatory agencies such as the FDA, MHRA, and similar foreign regulatory authorities as well as our customers to ensure compliance with requirements designed to ensure the quality and integrity of the testing process and data such as GLP and GMP and other requirements adopted by the EMA, the FDA, the Ministry of Health in the United Kingdom and by similar regulatory authorities in other countries, as applicable. GLPs and GMP require standardized procedures for all equipment, processes, and analytical tests, for recording and reporting data, and for retaining appropriate records.
Clinical Trials, MAA, NDA or BLA Preparation and Submission
In the European Union, all phases of clinical development are monitored and audited extensively by regulatory authorities of the relevant member states. Authorities scrutinize all clinical activities and data, and our partners must submit annual reports to the controlling authorities of the relevant member states detailing the progress of the trial. Our partners must also submit any information that suggests a significant risk to human patients or any clinically important increase in the rate of serious suspected adverse reactions to regulatory authorities as and when they discover such information. The United States has adopted a similar regulatory scheme to the European Union. Our partners typically carry out clinical development of our pipeline, including the conduct of human trials and interaction with regulatory authorities.
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Clinical trials are typically divided into three phases. Phase I clinical trials include basic safety and pharmacology testing in approximately 20 to 80 human subjects per trial, usually healthy volunteers or stable patients, and include trials to evaluate the metabolic and pharmacologic action of the product in humans, how the drug or biologic works, how it is affected by other drugs, how it is tolerated and absorbed, where it goes in the body, how long it remains active, and how it is broken down and eliminated from the body. Phase II clinical trials include basic efficacy (effectiveness) and dose-range testing in a limited patient population (usually 100 to 200 patients per trial) afflicted with a specific disease or condition for which the product is intended for use, further safety testing, evaluation of effectiveness, and determination of optimal dose levels, dose schedules and routes of administration. If Phase II trials yield satisfactory results, Phase III trials can commence. Phase III clinical trials include larger scale, multi-center, comparative clinical trials conducted with patients afflicted by a target disease, designed to permit a valid statistical test of safety and effectiveness required by the EMA, the FDA, and other regulatory authorities and to provide an adequate basis for product labeling. The FDA and similar foreign regulatory authorities receive reports on the progress of each phase of clinical testing and may require the modification, suspension, or termination of clinical trials if, among other things, an unreasonable risk is presented to patients or if the design of the trial is insufficient to meet its stated objective.
Upon completion of Phase III clinical trials, the drug sponsor will assemble the data from all phases of development, along with the chemistry and manufacturing and nonclinical data and the proposed labeling, among other things, into a single large document, the marketing authorization application (“MAA”), and/or the NDA or BLA. Under EU law, marketing authorizations can be obtained through the centralized marketing authorization procedure from the European Commission (based on the opinion of EMA’s Committee for Medicinal Products for Human Use) or through the national, mutual recognition or decentralized marketing authorization procedures from the competent authorities of the relevant member states. Centralized authorization is compulsory for certain drug types. The EMA (or the relevant authorities of the member states) and the FDA scrutinize data from all phases of development, as well as the facilities where the product is manufactured, to determine whether the manufacturer has complied with regulations and whether the drug or biologic is safe and effective for the specific use under study. The EMA (or the relevant authorities of the member states) or the FDA may refuse to accept the MAA, NDA or BLA for filing and substantive review if certain administrative and content criteria are not satisfied. Even after accepting the submission for review, the EMA (or the relevant authorities of the member states) or the FDA may require additional testing or information.
Regulations require a manufacturer to collect and periodically report to the EMA, FDA, and similar regulatory authorities in foreign countries additional safety data on the drug or biologic for as long as the manufacturer markets the product (post-marketing surveillance). These reports must include data from all countries in which the product is sold. Additional post-marketing trials (Phase IV) may be required as a condition of the product’s approval to assess safety or verify clinical benefit or may be undertaken voluntarily after initial approval to find new uses for the product, to test new dosage formulations or to confirm selected nonclinical benefits. Product approval may be withdrawn if compliance with regulatory standards is not maintained or if problems occur following initial marketing.
Data Privacy and Security Laws and Regulations
As a primarily business-to-business focused organization, we do not market, sell, or distribute products or services directly to patients or consumers. Accordingly, the personal information that we collect and process, including human tissues and patient samples, is generally limited to what is necessary to conduct business with other businesses within our industry.
Nevertheless, we hold confidential personal information relating to persons who have been and/or still are employed by the company. The possession, retention, use and disclosure of such information are highly regulated, particularly in the European Economic Area (“EEA”). The GDPR controls how personal data must be handled and places significant restrictions on the export of personal data from within the EEA to other third countries that have not been found to provide adequate protection for such personal data, including the United States, and the efficacy and longevity of current transfer mechanisms between the EEA and the United States remain uncertain. In the United States, numerous federal and state laws and regulations, including data breach notification laws, health information privacy and security laws, including Health Insurance Portability and Accountability Act (“HIPAA”), and federal and state consumer protection laws and regulations (e.g., Section 5 of the Federal Trade Commission Act), that govern the collection, use, disclosure, and protection of health-related and other personal information could apply to our operations or the operations of our partners. Failure to comply with these laws, where applicable, can result in the imposition of significant civil and/or criminal penalties and private litigation. Privacy and security laws, regulations, and other obligations are constantly evolving, may conflict with each other to complicate compliance efforts, and can result in investigations, proceedings, or actions that lead to significant civil and/or criminal penalties and restrictions on data processing.
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Other Environmental, Health and Safety Laws and Regulations
We may be subject to numerous environmental, health and safety laws and regulations, including those governing laboratory procedures and the handling, use, storage, treatment and disposal of hazardous materials and wastes. From time to time and in the future, our operations may involve the use of hazardous and flammable materials, including chemicals and biological materials, and may produce hazardous waste products. Even if we contract with third parties for the disposal of these materials and waste products, we cannot eliminate the risk of contamination or injury resulting from these materials. In the event of contamination or injury resulting from the use or disposal of our hazardous materials, we could be held liable for any resulting damages, and any liability could exceed our resources. We also could incur significant costs associated with civil or criminal fines and penalties for failure to comply with such laws and regulations.
We maintain liability insurance (including, where applicable, workers’ compensation) to cover us for costs and expenses we may incur due to injuries to our employees, but this insurance may not provide adequate coverage against potential liabilities. We also tailored several continuities plans for different locations to mitigate serious environmental issues.
In addition, we may incur substantial costs to comply with current or future environmental, health and safety laws and regulations.
Current or future environmental laws and regulations may impair our research, development, or production efforts. In addition, failure to comply with these laws and regulations may result in substantial fines, penalties, or other sanctions.
Competition
The market for biotech/pharmaceutical R&D partnering, and services is competitive, based on modality-by-modality or technology-by-technology comparison. However, we believe we are well-positioned to offer our partners an integrated solution that cannot be replicated by combining selected elements made available by other service providers. We believe our services are differentiated based on the degree of integration, the number of modalities, precision, relevance, agility, and capacity to generate new data and the ability to exploit it with advance computing.
We believe that Evotec is one of very few companies that has assembled such a seamlessly integrated precision medicine platform.
We compete in an industry characterized by rapidly advancing technologies, intense competition, and a complex intellectual property landscape. With respect to other players in specific fields in the industry, we consider our competition to be as described below:
| ● | External drug discovery and development: Several large CROs including Wuxi Apptec, Charles River Laboratories and Catalent. Large pharma’s incumbent R&D organizations. |
| ● | PanOmics and patient-relevant disease modeling: Recursion and Adaptive Biotechnologies, and, in the field of data-driven precision medicine in oncology, Schrödinger, Tempus. |
| ● | Tech enabled business models: Abcellera, Certara, Recursion and Schrödinger. |
| ● | iPSC-based regenerative therapy of Type I diabetes: Vertex Pharmaceuticals, Novo Nordisk, and Sana Biotechnology, all of whom are developing iPSC-based treatments for Type I diabetes. |
| ● | iPSC-based treatments of cancer and immune disorders: Fate Therapeutics and Century Therapeutics. |
| ● | Treatment of Parkinson’s disease and heart failure: BlueRock Therapeutics (acquired by Bayer in August 2019); |
| ● | iPSC-based assay developments: Fate Therapeutics, Allele Biotechnology, Takeda, and Fujifilm, along with Contract Manufacturing Organizations (“CMOs”) such as Lonza, SCM Lifescience, Reporcell and Charles River Laboratories. |
| ● | Biologics development and manufacturing: Contract Development and Manufacturing Organizations (“CDMOs”) such as Lonza, Samsung Biologics, Boehringer Ingelheim, Wuxi Biologics or Avid Bioservices. |
48
| ● | Pipeline assets: |
Manufacturing
In 2023 we operate five commercial manufacturing facilities, one of which is in the United States (Redmond, Washington, large molecules) and the others are in Europe including Abingdon, United Kingdom, Halle, Germany and Verona, Italy; small molecules. cGMP manufacturing capabilities were added via the acquisition of Rigenerand Srl. in Medolla, near Modena in 2022. Another manufacturing facility for large molecules is under construction in Toulouse, France.
Our J.POD late-stage clinical and commercial manufacturing facility for biologics has the potential to transform the cost and agility of biologics manufacture through continuous manufacturing with single-use technology. At full utilization, the facility will contain clinical and commercial processes, operated at the same scale to facilitate seamless transfer, and eliminate scale up risk. Located in Redmond, Washington, the building is expected to be approximately 130,000 square feet and will house approximately 200 employees at full capacity. The site, which will be able to produce on a large enough scale to meet most of our commercial needs in a single facility and will mainly supply markets in North America.
As global demand for flexible biologics capacity and for more affordable access to medicines increases, we are constructing a second J.POD facility in Toulouse, France. Europe is the second largest biologics market and a strong desire for local capacity and security of supply is evident in this market. The decision to set up this infrastructure at our own site in Toulouse was a strategic one, as the Toulouse footprint creates operational efficiency and co-location for oncology and immunology expertise and adds further synergy with our strategic needs. We expect the second J.POD facility to be operational in the first quarter of 2025.
Certain of our operations are carried out under GMP and GLP regulations that are certified and periodically audited by regulatory agencies such as the FDA, MHRA, AIFA and our customers. Further, we have established an internal quality assurance system that monitors our compliance with these regulations.
| C. | Organizational structure. |
Evotec SE is a publicly listed European stock corporation operating under German law. Our headquarters are in Hamburg, Germany. We have operating sites in Göttingen, Halle, Hamburg, Cologne, and Munich (Germany), Lyon and Toulouse (France), Abingdon and Nether Alderley (United Kingdom), Verona and Medolla (Italy), Orth an der Donau (Austria), as well as in Branford, Princeton, Redmond, Seattle, and Framingham (U.S.). The group has been successful in creating both operational and technological synergies between the sites and geographical regions by way of organic growth and strategic acquisitions. A listing of our significant subsidiaries and their jurisdiction of incorporation is included in Exhibit 8.1 to this 20-F filing.
| D. | Property, plants and equipment. |
Our headquarters are in Hamburg, Germany, where we occupy office and laboratory space. We manage further laboratories and office facilities in Göttingen, Munich and Cologne and Halle in Germany, Toulouse and Lyon in France, Abingdon and Manchester in the United Kingdom, Princeton, Framingham, Branford, Seattle, and Redmond in the United States, Verona, and Medolla in Italy. Manufacturing areas are available in Verona, Abingdon, Halle, Seattle, and Redmond sites. Some key steps to build this facilities setup were:
49
| ● | In July 2019, we acquired Just Biotherapeutics Ltd., located in Seattle, United Stated (Just), including 3,580 square meters of laboratory and office space. |
| ● | In July 2020, we acquired the Biopark by Sanofi SAS in Toulouse from Sanofi, including all land and buildings of the former Sanofi site. We also took over a second site of Sanofi in Lyon. |
| ● | In the second quarter of 2021 we acquired the Verona site from GlaxoSmithKline SpA (GSK), consisting of 41,057 square meters of laboratory, production and office space. |
| ● | The acquisition of a dedicated site for R&D of gene therapy-based projects in Orth/Donau, Austria as part of its plan for profitable growth. The decision to close the site was announced in May 2024. |
| ● | In 2022, we added Proteomics capacity enlarging our footprint in Munich (new campus) and we expanded our laboratories in Princeton (U.S.), in Abingdon (UK) and in Verona (Italy). |
| ● | In the second half of 2022, we acquired Rigenerand in Modena (now called Evotec (Modena) Srl.) and an API production site in Halle (now called Evotec DS). In the first half of 2024 the group decided to discontinue the operation of Halle/Westphalia, Germany. |
| ● | In 2022, we completed the preparation activities to transfer our operations from the previous U.S. Watertown site to a new site located in Framingham (2,392 sqm). We moved into the new site at the beginning of 2023. |
The following table summarizes information with respect to the principal facilities leased and owned1) by us at the end of 2023:
|
|
Area |
Location |
|
SQM total (brutto) |
Austria Total: |
|
1,668 |
Orth an der Donau |
|
1,668 |
France Total: |
|
67,717 |
Lyon |
|
2,276 |
Marcy l’Etoile |
|
1,188 |
Toulouse1) |
|
64,253 |
Germany Total: |
|
46,859 |
Cologne |
|
981 |
Göttingen |
|
13,560 |
Hamburg |
|
21,717 |
Munich |
|
2,416 |
Halle |
|
8,185 |
Italy Total: |
|
41,967 |
Verona1) |
|
41,057 |
Medolla1) |
|
910 |
UK Total: |
|
27,963 |
Abingdon |
|
24,049 |
Nether Alderley |
|
3,914 |
US Total: |
|
25,025 |
Branford |
|
2,223 |
Princeton |
|
3,945 |
Redmond |
|
12,887 |
Seattle |
|
3,578 |
Framingham |
|
2,392 |
Evotec total |
|
211,195 |
We lease an aggregate of approximately 105,000 square meters, in Europe and the United States. Our leases expire on various dates from 2024 to 2043 (indicatively).
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To facilitate the continued growth of our company, we regularly invest in upgrading and expanding our technology and infrastructure. For example, we have made major enhancements to our technology platform regarding the areas of translational biology, high-content imaging and proteomics. Additionally, we have made our scientific operations more efficient by adding additional state-of-the-art sample management technology. We continued our investments in the expansion and development of individual locations into 2023. We have ongoing expansion projects in Hamburg, Toulouse, Manchester.
We have completed construction of our first J.POD facility in North America, an integral part of the J.DESIGN platform of Just—Evotec Biologics. We expect this facility will fulfill our production requirements for the coming years and strengthen our position as a major partner in drug discovery and development with pioneering technologies in the field of biologics. This new facility became operational in August 2021. In 2022, we started the construction of our second J.POD facility in Toulouse. We also continue to further upgrade and digitize our administrative tools and systems. We will continue to make CapEx to secure the further growth and scalability of our company. We expect to require roughly € 80 million for our two J.POD facilities, one in Redmond, Washington and the other one in Toulouse, France. Planning of construction in France began in April 2021 and construction started in September 2022 (supported by related funding from French authorities). The second J.POD is expected to be operational in the first quarter of 2025 and will have the capacity for an output of up to 2,000 kg per annum. At other sites we expect to commit new CapEx of roughly € 90 million in 2024. This includes next to investments into lab equipment to maintain the highest technology and infrastructure also investments into facilities expansion like the new iPSC lighthouse building in Hamburg or the capacity expansion of our DMPK business in Macclesfield (UK).
We plan to fund additional CapEx through cash on hand and debt financing.
Environmental Issues
To the best of our knowledge, currently there are no foreign, federal, state or local environmental laws, rules or regulations that will materially affect our results of operations or our position with respect to our competitors. However, we can provide no assurance of the effect that any possible future environmental laws will have on our operating results.
Item 4A. Unresolved Staff Comments
No unresolved comments.
Item 5. Operating and Financial Review and Prospects
| A. | Operating results. |
You should read the following discussion and analysis of our financial condition and results of operations together with our audited financial statements and related notes included elsewhere in this annual report. The following discussion is based on our financial information prepared in accordance with the International Financial Reporting Standards, or IFRS, as issued by the International Accounting Standards Board, or IASB, which may differ in material respects from generally accepted accounting principles in other jurisdictions, including U.S. GAAP. The following discussion includes forward-looking statements that involve risks, uncertainties, and assumptions. Our actual results may differ materially from those anticipated in these forward-looking statements because of many factors, including but not limited to those described in “Risk Factors” and elsewhere in this prospectus. Please also see “Cautionary Note Regarding Forward-Looking Statements.”
For information regarding our consolidated results, segment results and liquidity and capital resources for the year ended December 31, 2022 as compared to the year ended December 31, 2021, refer to “Operating and Financial Review and Prospects” in our annual report for the year ended December 31, 2022, which information is incorporated by reference herein.
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Overview
We are an industry-leading drug discovery and development partner for the pharmaceutical and biotechnology industry. Our mission is to discover best and first-in-class medicines for a broad range of difficult-to-treat diseases in collaboration with our partners. To that end, we have built a comprehensive suite of fully integrated, next-generation technology platforms, which we believe, will transform the way new drugs are discovered. By leveraging the advanced capabilities of our integrated platforms, we can provide solutions to our partners that enable significant improvements in the quality of new drugs while accelerating the drug discovery process and reducing the high cost of attrition often associated with traditional drug discovery processes.
We generate revenue primarily through three core collaboration routes: (1) by providing our drug discovery capabilities on a fee-for-service and FTE-rate basis; (2) by receiving milestones and royalties on partnered assets; and (3) by creating value through equity ownership in emerging, highly innovative biotechnology companies and translational academic institutional projects. Contracts with our partners can include elements of one or more of our three core collaboration routes.
We report the results of our operations in two operating segments: EVT Execute and EVT Innovate. EVT Execute includes mainly fee-for-service and FTE-rate arrangements where our customers own the intellectual property, whereas EVT Innovate comprises of internal R&D activities as well as services and partnerships that originate from the R&D activities where we typically own or co-own intellectual property with our strategic partners or participate on the jointly developed intellectual property.
In the future, we expect EVT Innovate to generate more revenue from milestones and royalties as our co - owned pipeline assets and partnerships mature. Revenue generated through our collaboration arrangements may contribute to either the EVT Execute or EVT Innovate segment, depending on the nature of the contract with our customer, the ownership of the intellectual property and the stage of the project. Expenses, such as labor and material expenses, arising from the work on contracts for which the customer owns the intellectual property are recorded as cost of revenues whereas expenses arising from pursuing internal R&D activities are recorded as R&D expenses. Additionally, when entering into customer contracts and partnership agreements based on internal R&D activities, the related costs, such as labor, materials and reimbursable overhead expenses of the subsequent contract are also recorded within cost of revenues.
For the year ended December 31, 2023, we reported €781.4 million in revenue, representing growth of 4.0% from the year ended December 31, 2022, and €83.9 million in net losses, representing an increase of €91.7 million compared to the year ended December 31, 2022. We also reported Adjusted EBITDA of €66.4 million for the year ended December 31, 2023, representing a decrease of €35.3 million compared to the year ended December 31, 2022. Adjusted EBITDA is a measure that is not defined under IFRS. For further information about how we calculate Adjusted EBITDA, the limitations of its use and its reconciliations to comparable IFRS measures, see “–Key Performance Metrics and Non-IFRS Measures.”
Key Factors Affecting Our Results
Factors affecting our results of operations and financial condition include the factors described below.
Market Demand for External Innovation
Our financial results are impacted by our partners and customers’ needs for external innovation through collaborating or outsourcing their R&D initiatives and/or highly innovative manufacturing activities and our ability to meet those needs. We will sustain growth only if our existing partners and customers continue to rely on our expertise and capacity and if additional companies select us as their partner of choice for drug discovery and development.
For the past few decades, the global pharmaceutical industry has been struggling with declining R&D efficiency in introducing new products to the market. As a result, pharmaceutical companies of all sizes have been and continue to be under pressure to re-evaluate and adjust their business strategies, in particular by accessing innovative technologies, such as AI and ML, and pursuing innovative treatment modalities, such as personalized medicine, cell therapy and gene therapy. New companies have been formed to specifically develop these technologies and modalities. Moreover, there is an increased focus on early prediction parameters to determine the success or failure of new drugs. To access innovation in a capital-efficient manner, industry players increasingly rely on external sources, such as our innovation hub, for innovative R&D and manufacturing expertise and capacity.
52
We believe that market demand for external innovation will continue to drive demand for our assets and services, facilitate additional collaboration opportunities and potentially improve the volume and terms of partnerships that we are able to secure. We believe this trend will increase the likelihood of strategic, integrated, long-term collaborations and drive our continued growth.
Efficiency and Scientific Excellence of our own R&D Activities
Our performance is dependent not only on the market’s need for external innovation, but also on our own ability to provide innovative solutions. For this reason, investing in technologies and platforms is a core part of our strategy. In 2022 and 2023, we spent €76.6 million and €68.5 million in R&D, respectively, and we intend to continue to dedicate a significant amount of financial resources to ensuring that our offering continues to meet the industry’s needs.
For example, we are allocating a significant number of resources to improving our PanOmics and PanHunter platform, our capabilities for AI-driven development of biologics and our iPSC platform. Investments in maintaining and expanding our technological leadership increases our short-term expenses while opening possibilities for future revenue growth and sustainability.
Scientific Results and Third-Party Decisions
An important pillar of our growth strategy is the generation of milestones and royalties. Our pipeline currently includes more than 140 partnered assets. We define our pipeline to include candidates that we wholly own and those for which we have the right to receive royalty or milestone payments. Pipeline assets with respect to which we have the right to receive royalty or milestone payments include those that we will have initially developed and subsequently licensed or assigned to partners for continued pre-clinical and clinical development as well as those that have been initially developed by our partners and that have become the subject of a joint research project. We do not count in our pipeline candidates being developed by partners in whom we have solely an equity stake through EVOequity and no right to milestone or royalty payments with respect to their candidates in development.
Our financial results depend on the success of our partners’ clinical development of the co-owned pipeline assets, receipt of regulatory approval and commercialization. A partner may choose to end the development of a specific program for scientific or commercial reasons, and we typically have no ability to influence such decisions, which may be driven by factors such as pipeline prioritization and the ability to obtain additional required capital. Our future financial results therefore depend, in part, on the judgment and financial health of our partners. We mitigate this risk through diversification in our portfolio.
To the extent that our pipeline assets are recognized on our balance sheet in line with IFRS requirements, impairments directly affecting our results of operations may occur if our expectations for future cash flows change significantly. This may be due to our partners’ decision to discontinue a program for scientific or commercial reasons, or their inability to obtain adequate funding.
Revenue Mix and Gross Margin
We generate revenue either from fee-for-service and/or FTE-rates-based contracts, by receiving milestones and royalties on assets or partnerships, or any combination thereof. Revenues can be further differentiated based on our technologies and platforms. Changes in the allocation of revenues between contract types and technologies mainly affect our cost of sales, gross profit, and gross margin.
In each of the years ended December 31, 2022 and the year ended December 31, 2023, 72% and 65% of our third-party revenues were derived from EVT Execute, which mainly includes fee-for-service and FTE-rates-based revenues arrangements, where our partners own intellectual property.. In the mid-to-long-term, we are focused on generating an increasing share of our revenues from milestones and royalties on our assets. In some cases, especially in our EVT Innovate segment, we enter contracts with short-term lower FTE rates in exchange for higher financial upside through future milestone or royalty payments. Our strategy is to share the risk and reward and collaborate our assets as early as possible in the preclinical or development process to generate subsequently substantial medium-term revenues from FTE-based research payments and development milestone payments and long-term revenues from sales milestones and royalties. In the initial discovery and development stage, we do not earn any revenue from these arrangements. In the long term, however, we expect our gross margin to improve since no significant expenses will be incurred in relation to milestones and royalties because our partners typically absorb the costs of clinical development and commercialization.
Additionally, we have invested in our biologics manufacturing facilities (J.POD) which, once at full operational capacity, we expect to generate higher average gross margins than our existing business.
53
Acquisitions and Disposals
Strategic acquisitions are part of our strategy for growth and strengthening our competitive position. We continually evaluate the market for attractive opportunities that are accretive to our business. We typically acquire companies that expand our value chain through access to new technologies and/or additional capacity, extend our offering and value chain, provide access to new customers, or allow for the extension of our geographical reach.
On July 1, 2023 the Group acquired the remaining 50% in NephThera GmbH for a total consideration of € 1.65m. The contribution of the businesses acquired to the Group’s consolidated revenues, consolidated Net income and Adjusted EBITDA in 2023 was immaterial.
In addition, we have acquired, and may continue to acquire minority stakes in early-stage development companies through our EVOequity program, which is described in further detail under Item 4 of this annual report. These companies can either be entities with no prior relationship, or spin-offs from our other programs, such as our BRIDGEs program. The related transactions may result in significant influence over the acquired entity in line with the IFRS definition presented in IAS 28 (generally 20% or more of voting rights) and therefore require us to account for these investments using the equity method. In this case, in addition to the balance sheet impact, our share of the investee’s profit or loss will affect our results of operations under “share of the result of associates accounted for using the equity method,” but will have no effect on our Adjusted EBITDA. Fair value adjustments of our equity investments that are not accounted for using the equity method also affect our results of operations from time to time. For example, during the year ended December 31, 2023, we recognized € 11.3 million from a measurement gain, related to our investment in Exscientia plc. During the year ended December 31, 2022, we recognized € 174.7 million from a measurement loss from our investment in Exscientia plc. Fair value adjustments of a similar magnitude may or may not occur in the future.
Foreign Currency Exchange Rates
Due to our international business operations, we are subject to both foreign exchange transaction and translation risks. Our reporting currency is Euro; however, we also incur revenues and expenses in U.S. dollar and pound sterling. Other currencies are of less relevance.
Transactional risk arises when we and our subsidiaries execute transactions in a currency other than our respective functional currency. Our principal exposure to translation effects relates to the U.S. dollar and pound sterling. In 2022, 48% and 15% of our revenue and 24% and 18% of our cost of revenue was in U.S. dollars and pound sterling, respectively. In 2023, 65% and 11% of our revenue and 28% and 20% of our cost of revenue was in U.S. dollars and pound sterling, respectively.
Where we are unable to reconcile sales generated in a foreign currency with expenses incurred in the same currency, our operating results will be adversely affected by exchange rate fluctuations. We also use derivatives such as currency futures and swaps to minimize exchange risk.
R&D Tax Credits
We receive R&D tax credits for qualifying research related expenses in France, the United Kingdom, Italy, Germany and Austria. The credits are recognized under other operating income. These credits amounted to €44.0 million in 2023 as compared to €42.9 million in 2022.
In general, the R&D tax credit policies in the countries where we operate have been stable in recent years, with some countries expanding their R&D tax credit policies to our benefit. For example, due to changes to Italian tax laws, a new tax credit was granted in Italy for which we are eligible starting from June 2021. In Germany, a new scheme was introduced in 2020. We received confirmation from the public authorities (Bescheinigungsstelle Forschungszulage “BSFZ”) in 2022 that Evotec International qualified for a €1 million in tax credits in each of the years 2020, 2021 and 2022. The 2023 tax credits are solely based on projects, which were included in the 2020-2022 application and which passed the BSFZ review. Salary costs for these projects in 2023 exceeded €4 million and therefore the maximum amount of €1 million for the R&D tax credits were included in the balance sheet. Further changes or full or partial expirations of these programs may affect our future financial performance.
54
Cyber-attack
On April 7, 2023 we announced an ad hoc release, that on April 6, 2023 a cyber-attack occurred on our IT systems. As a result, the systems were shut down proactively and disconnected from the Internet to secure from data corruption.
As of the date of this report, the cyber-attack has had a significant adverse impact on our financial results. Overall, in 2023, we again exceeded previous year revenue, however productivity was affected throughout the entire second quarter 2023, which led to a revision of the guidance. We took immediate action to contain and remediate the attack by taking our external-facing systems offline. This was deemed necessary to protect all the Company’s partners and stakeholders and allowed us to ensure the integrity of our scientific data remained unaffected.
Key drivers of other operating expenses in the amount of €(44.2) million (2022: €(2.0) million) have been related to managing the impact of the cyber-attack since April 6, 2023. These costs are related to third Party involvement like consultants and legal advisors (€15.9 million) as well as work contributed by our staff (€26.5 million) and totaled to €43.5 million as of December 31, 2023. Internal costs reported under Other operating expenses related mainly to time spent in IT and other departments on recovering after the cyber-attack, primarily employees working to bring processes and systems back on-line.
Description of components of Results of Operations
Revenues
Revenues consist mainly of service fees and FTE-based research payments.
We maintain a large portfolio of partnered pipeline assets generating revenues from upfront and milestone payments as well as several unpartnered pipeline assets that we are progressing for future collaboration. We expect the relative share of revenues from milestones and royalties as a percentage of total revenue to increase as our pipeline matures.
Costs of Revenue
Costs of revenue include the cost of personnel directly associated with revenue-generating projects, facilities and overhead used to directly support those projects, and outsourced services used as well as materials consumed in the provision of the products or services as well as amortization and depreciation.
R&D Expenses
Our R&D expenses comprise expenses incurred in connection with our in-house discovery platforms and developing new unpartnered pipeline assets as well as overhead expenses for both our partnered and unpartnered R&D projects.
We expense our research activities as incurred. Due to the high uncertainty associated with early-stage development activities in the pharmaceutical sector, the precondition for the capitalization of development expenses as outlined in International Accounting Standards (“IAS”) 38 is generally not satisfied. Therefore, we have not capitalized internally generated development costs to date.
R&D projects that are acquired in a business combination are capitalized at fair value when those R&D projects are expected to generate probable future economic benefits to our business. R&D costs acquired in a business combination are not amortized until they are sustainably generating benefits.
We expect R&D expenses to increase continuously for the near future as our current pipeline progresses and we develop new pipeline assets.
55
Selling, General and Administrative Expenses
Our selling expenses mainly consist of personnel costs (including share-based compensation), social security, travel costs and consultancy expenses of our business development team. General and administrative expenses primarily consist of personnel-related costs (including share-based compensation) for procurement and logistics, finance, legal, human resources, information technology, investor relations, risk management and other administrative functions, professional fees, accounting and legal services, insurance and facility costs related to space used by the support functions. These costs relate to the day-to-day administrative operation of the business and are unrelated to the R&D of any individual asset.
Impairment of Intangible Assets and Goodwill
Impairment of intangible assets and impairment of goodwill consists of the losses resulting from the differences between the carrying amount of related assets and their recoverable amount, which is the higher of the asset’s fair value less cost to sell or value in use. An impairment of goodwill may occur in case the expected performance of the underlying cash-generating unit falls below the expectation at the time of the acquisition of the relevant business. Impairments of intangible assets typically occur when scientific programs do not meet expectations in terms of scientific results or timelines for partnering, thereby impacting expectations for future cash flows.
Other Operating Income
Other operating income mainly consists of tax credits received from tax incentive programs in the context of qualifying R&D expenses in different jurisdictions and refunds from third parties for cost charges.
Tax credits can regularly be offset partially or fully from tax payments to fiscal authorities. We account for income from such R&D tax credit programs as other operating income instead of offsetting them from income tax expenses.
In addition, we recharge current costs incurred at the ID Lyon sites to Sanofi in connection to our agreements signed in 2018. Sanofi agreed to license to us most of its infectious disease research and early-stage development portfolio and transfer its operational infectious disease research unit to us, in addition to providing significant mid-term funding to ensure support and progression of the portfolio for which it retained certain option rights on the development, manufacturing, and commercialization of anti-infective products. We recognize these amounts in other operating income when they are a direct reimbursement of costs. There is no underlying direct exchange of these services for this income and therefore a recognition as revenue is not suitable. The related expenses are recognized under R&D expenses.
Other Operating Expenses
Our current other operating expenses mainly consist of the expenses that we recharge to our partners for specific projects, such as the ID Lyon agreement. These expenses include facility costs, consultancy expenses, personnel costs, and incidental wage costs; outsourced services, materials consumed and depreciation. The related income is recognized under other operating income. For 2023, the largest contributor to other operating expenses were the internal and external costs associated with recovery from the cyber-attack in the second quarter.
Interest Income and Expenses
Interest income consists of interest accrued or paid on cash deposits and short-term investments as well as other financial instruments.
Interest expenses consist primarily of interest from our Euro denominated short-term and long-terms loans and promissory notes. A portion of our finance expenses are related to interest expense on our revolving credits, which we utilize at certain points in the year as needed. Interest expenses also arise from interest rate swaps, from our lease obligations according to IFRS 16 and for the unwind of discounts of our earn-out liabilities.
Measurement result from Investments
Our measurement result from investments includes fair value adjustments for investments measured in accordance with IFRS 9.
56
Share of the Result of Associates Accounted for Using the Equity Method
Share of the result of associates accounted for using the equity method consists of our participation in the profits or losses generated as well as fair value differences where applicable.
Foreign Currency Exchange Gain (Loss), Net
Our business and reported profitability are affected by fluctuations in foreign exchange rates mainly between the U.S. dollar, pound sterling and the Euro. A strengthening/weakening of these currencies as compared to each other and against other currencies, leads to foreign currency exchange gains or losses in our consolidated income statement.
Tax Income (Expense)
Tax income (expense) represents the tax charge or credit on our profit or loss for the year and includes both current and deferred taxation. Tax income (expense) is recognized in the income statement unless it relates to items recognized directly in equity when it is recognized through the statement of comprehensive income. Deferred tax income (expense) consists of the tax impact of tax loss carryforwards and temporary differences. In the future, we expect to continue to benefit from certain tax loss carryforwards as we have incurred negative income in certain group entities including Evotec SE in the past, which is discussed in more detail under “Result of Operations—Income and deferred taxes” below. We expect our income taxes to continue to increase on an absolute Euro basis as we continue to grow.
Result of Operations
For a discussion of our results of operations, including selected segment information, for the year ended December 31, 2022, including a year-over-year comparison between 2022 and 2021, and (ii) our liquidity and capital resources for the years ended December 31, 2022, please refer to “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our 2022 Annual Report.
The following table summarizes our consolidated statements of operations for each period presented:
|
|
Years Ended December 31, |
|||||||
|
|
2023 |
|
2022 |
|
2021 |
|||
(In € thousands) |
|
|
|
|
|
|
|
|
|
Revenues |
|
|
781,426 |
|
|
751,448 |
|
|
618,034 |
Costs of revenue |
|
|
(606,375) |
|
|
(577,383) |
|
|
(466,491) |
Gross profit |
|
|
175,051 |
|
|
174,065 |
|
|
151,543 |
R&D expenses |
|
|
(68,529) |
|
|
(76,642) |
|
|
(72,200) |
Selling, general and administrative expenses |
|
|
(169,610) |
|
|
(156,190) |
|
|
(105,445) |
Other operating income |
|
|
64,793 |
|
|
81,582 |
|
|
73,472 |
Other operating expenses |
|
|
(44,972) |
|
|
(1,965) |
|
|
(5,691) |
Impairments |
|
|
(5,016) |
|
|
— |
|
|
(683) |
Operating income (loss) |
|
|
(47,507) |
|
|
20,850 |
|
|
40,996 |
Gain (loss) on investment in equity instruments reevaluation |
|
|
(9,143) |
|
|
(172,159) |
|
|
211,754 |
Share of profit (loss) of associates and Joint ventures |
|
|
(20,752) |
|
|
(15,098) |
|
|
(16,570) |
Financial income |
|
|
9,263 |
|
|
8,336 |
|
|
2,272 |
Financial expense |
|
|
(11,739) |
|
|
(13,150) |
|
|
(9,254) |
Other non-operating income (expense) |
|
|
(714) |
|
|
12,357 |
|
|
7,782 |
Gain from bargain purchase |
|
|
— |
|
|
4,908 |
|
|
— |
Net Income (loss) before taxes |
|
|
(80,593) |
|
|
(153,956) |
|
|
236,980 |
Income taxes |
|
|
(3,320) |
|
|
(21,698) |
|
|
(21,470) |
Net income (loss) |
|
|
(83,913) |
|
|
(175,655) |
|
|
215,510 |
57
Revenues
Revenues increased by €30.0 million, or 4%, from €751.4 million in 2022 to €781.4 million in 2023. The growth was mainly driven by the contribution of BMS and a new deal with Sandoz in our Biologics area. Revenues from milestones decreased from €18.1 million in 2022 to €5.5 million in 2023.
Revenues from fee-for-service and FTE-rate-based research services increased by €53.5 million or 6.3%, from €684.0 million in 2022 to €726.9 million in 2023.
Total revenues in the EVT Execute segment increased by €3.1 million, or 0.4%, from €735.6 million in 2022 to €738.7 million in 2023. EVT Execute revenues from external customers decreased by €32.2 million due to the fee-for-service and FTE revenue business being most heavily affected by the cyberattack. The positive effect from Biologics by € 46.2m mainly due to the contribution from Sandoz was partly absorbed by the backlog in revenues in development of € 27.5m driven by lower general market demand in 2023. The increase in intersegment revenues amounted to €35.3 million (revenues for services performed by EVT Execute for projects accounted for within EVT Innovate) which totaled €224.2 million and €188.9 million in 2023 and 2022, respectively. The 19% increase in intersegment revenues resulted from the support of EVT Innovate’s growth in external collaborations, in particular in the BMS collaborations, as well as internal R&D projects. Milestone revenues amounted to €1.0 million and €6.1 million for 2023 and 2022, respectively.
Revenues in the EVT Innovate segment increased by €62.2 million, or 30%, from €204.7 million in 2022 to €266.9 million in 2023 primarily from the fee-for-service and FTE revenue business. Revenue from fee-for-service and FTE-rate-based research services increased by €69.5 million, or 37%, from €185.3 million in 2022 to €254.7 million in 2023. This growth was driven by higher base revenues and project-related revenues from BMS and other strategic pharma deals. Milestone revenues in the EVT Innovative segment decreased from €12.0 million in 2022 to €3.8 million in 2023.
Costs of Revenue
Costs of revenue increased by €29.0 million, or 5.0%, from €577.4 million in 2022 to €606.4 million in 2023. The increase in cost of revenues was mainly attributable to the accelerated expenses for Biologics, which increased by €19.1 million year over year primarily driven by an increase in headcount to fulfill the increased sales demand and continue building up the J.POD facility in the US. In the other business areas within the base business, we faced an increase of €8.6 million year over year in total. This was driven by higher labor costs due to the yearly merit increase and higher costs for facilities and depreciation due to continued expansion of our footprint. Gross margin decreased to 22.4% in 2023 from 23.2% in 2022.
Costs of revenue in the EVT Execute segment increased by €25.6 million, or 4%, from €605.8 million in 2022 to €631.4 million in 2023. Gross margin decreased from 17.7% for 2022 to 14.5% for 2023. Cost of revenue increased due to higher headcount and ramp-up cost for Just - Evotec Biologics. Higher energy costs, merit increases and inflation on materials and supplied services also contributed to the increase. The Execute segment bore the majority of the cyberattack costs.
Costs of revenue in the EVT Innovate segment increased by €39.1 million, or 27%, from €145.6 million in 2022 to €184.7 million in 2023, however, showed a smaller increase than our revenue growth within EVT Innovate at 30%. Gross profit in 2023 was impacted by significant contributions from the BMS collaborations which resulted in an increased Gross margin of 30.8% in 2023 compared to 28.9% in 2022 despite the reduction in milestone revenues of €8.3 million. Overall, our customer mix within EVT Innovate was more favorable towards our big strategic partners, which impacted our gross profit positively.
R&D Expenses
In 2023, Evotec continued to progress its projects e.g., in central nervous system disorders, diabetes, immunological diseases, infectious diseases, inflammation, kidney diseases, metabolic diseases, oncological diseases, rare diseases and women’s health. We are building a long-term pipeline of first-in-class or best-in-class assets and/or unique proprietary platforms; the ultimate goal of the EVT Innovate segment is to build a proprietary platforms and early-stage assets to enable upside-bearing strategic deals.
58
R&D expenses decreased by €8.1 million, or 10.6%, from €76.6 million in 2022 to €68.5 million in 2023, primarily because of the lower expenses in Q2. The main R&D expense contributors are expenses for proprietary EVT Innovative projects, including PanHunter, PanOmics and Cell Therapy. Proprietary innovative project expenses decreased from €62.1 million in 2022 to €56.5 million in 2023 and accounted for 81.0% and 82.5% of total R&D expenses in 2022 and for the years ended December 31, 2023, respectively. The decrease in R&D expenses represents a balance between strong investments in Evotec’s capabilities to improve efficiency and precision medicine platforms, and financial stewardship in the year impacted by the cyber-attack. Platform R&D expenses that can be attributed to EVT Execute decreased from €2.3 million in 2022 to €1.3 million in 2023. Indirect expenses (consisting of overhead expenses not specifically allocated to projects) decreased from €12.2 million in 2022 to €10.7 million in 2023. Indirect expenses represented 15.9% and 15.6% of the total R&D expenses in 2022 and for the years ended December 31, 2023, respectively.
The following table presents our R&D expenses by category for the periods shown:
|
|
Years Ended December 31, |
||||
(In € thousands) |
|
2023 |
|
2022 |
|
2021 |
Neuroscience & Pain |
|
(6,400) |
|
(10,009) |
|
(9,352) |
Oncology |
|
(11,701) |
|
(10,242) |
|
(9,352) |
Metabolic Diseases |
|
(10,966) |
|
(9,341) |
|
(9,309) |
Inflammation and Immunology |
|
— |
|
— |
|
— |
Virology |
|
(2,814) |
|
(3,685) |
|
(3,597) |
Anti-Bacterial |
|
(99) |
|
(2,336) |
|
(7,417) |
Global Health |
|
(246) |
|
(421) |
|
(849) |
Innovate Platform R&D |
|
(24,285) |
|
(26,065) |
|
(21,660) |
Total Proprietary innovative projects expenses |
|
(56,511) |
|
(62,100) |
|
(61,536) |
Biologics |
|
(48) |
|
(182) |
|
(572) |
Gene Therapy |
|
(48) |
|
(542) |
|
(941) |
Other |
|
(1,223) |
|
(1,620) |
|
(1,015) |
Platform R&D expenses |
|
(1,319) |
|
(2,345) |
|
(2,528) |
Overhead expenses |
|
(10,698) |
|
(12,198) |
|
(8,136) |
Total R&D expenses |
|
(68,529) |
|
(76,642) |
|
(72,200) |
thereof: |
|
|
|
|
|
|
Partnered R&D expenses |
|
(3,711) |
|
(6,438) |
|
(14,083) |
Unpartnered R&D expenses |
|
(64,818) |
|
(70,204) |
|
(58,117) |
Unpartnered R&D expenses decreased by €5.4 million, or 7.7%, from €70.2 million in 2022 to €64.8 million in 2023. The decrease is due to overall delayed commencement of projects.
R&D expenses for partnered assets declined from €6.4 million in 2022 to €3.7 million in 2023. Partnered R&D expenses are fully assigned to EVT Innovate and refunded by our research partner Sanofi in respect of such expenses are recorded under other operating income. The ID Lyon site was acquired in 2018 and has been funded by Sanofi until the end of November 2023. There were no further partnered R&D expenses in 2023 and Evotec does not expect that partnered R&D expenses will increase in 2024.
Selling, General and Administrative Expenses
Selling, general and administrative expenses (SG&A) increased by €14.4 million, or 9%, from €156.2 million in 2022 to €170.6 million in 2023, mainly driven by growth in employee headcount in most areas of the enabling functions. Personnel-related expenses increased by €13.3 million, from € 84.1 million in 2022 to €97.4 million in 2023. Consultancy costs decreased by €6.7 million, from €28.6 million in 2022 to €21.9 million in 2023, partially compensating an increase in headcount growth and partly driven by delayed commencement of internal projects due to cyber-attack. Insurance costs decreased by €2.6 million from €10.3 million to €7.7 million driven by lower D&O insurance expenses. Audit and tax related expenses increased by €3.0 million from €6.1 million from 2022 to €9.1 million. Furthermore, IT and license costs increased by €2.3 million from €11.5 million in 2022 to €13.8 million in 2023, due to continued expansion of IT capabilities.
59
Impairment of Intangible Assets and Goodwill
In 2023, we recognized an impairment of intangible assets of €5.0 million, (€0 million in 2022), which was linked to an impairment of an intangible asset within developed technologies. The impairment losses in 2023 were allocated to the EVT Execute segment.
There were no impairment losses from goodwill in either 2023 or 2022.
Other Operating Income
Other operating income, which included mainly Sanofi recharges for Evotec ID Lyon, R&D tax credits and changes in fair value of earn-out liabilities decreased by €16.8 million, or (20.6)%, from €81.6 million in 2022 to €64.8 million in 2023. R&D tax credits were mainly recognized in France for the Toulouse and Lyon sites, UK, and Italy, resulting in an a overall R&D related other operating income in 2023 in the amount of €44.0 million as compared to €42.9 million recorded in 2022. Other operating income, related to Sanofi decreased to €16.6 million in 2023 (2022: €34.2 million).
Other Operating Expenses
Other operating expenses increased by €42.2 million, from €2.0 million in 2022 to €44.2 million in 2023. The significant increase was driven by the cyber-attack and related costs of €43.5 million, which comprises of €26.5 million internal costs and €15.9 million of external costs. Internal costs represent employees active efforts to restore normal operations. External costs are additional costs incurred due to the cyber-attack, such as increased consulting and IT costs. The external costs are considered to be an item that in magnitude, nature or occurrence would distort the presentation of the financial performance of the Group, as these are not deemed to be recurring costs.
Interest Income
Interest income increased by €0.9 million, or 11.1%, from €8.3 million in 2022 to €9.3 million in 2023 due to increased interest rates for investments of Evotec’s liquidity on short term investments in particular in EUR and USD.
Interest Expense
Interest expense decreased by €1.4 million, or (10.7)%, from €13.1 million in 2022 to €11.7 million in 2023. This decrease was due to revaluation of interest rate swaps in 2022.
Measurement result from Investments
Measurement result from investments increased by €163.0 million, from €(172.2) million in 2022 to € (9.1) million in 2023 mainly due to the fair value increase of our investment in Exscientia plc. The fair value of Exscientia plc increased by €11.3 million due to a share price rise year on year from $5.33 to $6.41 as of December 31, 2023 after it had dropped from $19.76 to $5.33 in 2022 which led to €174.7 million reduction in the fair value of Exscientia plc. in the previous year. In addition, a measurement loss of € 15.8 million was recorded for several of our investments.
Share of the Result of Associates Accounted for using the Equity Method and Impairment of Financial Assets
Share of the loss and impairment in connection with associates accounted for using the equity method increased by €4.8 million, or 30%, from €(16.0) million in 2022 to €(20.8) million in 2023, reducing net income in both years. The impairment of investments in associates amounted to €7.9 m as per 31 December 2023 consisting of the impairment of investments in Centauri Therapeutics GmbH in the amount of €3.3 million, Curexsys GmbH in the amount of €3.0 million, Tucana Bioscienes Inc. in the amount of €0.6 million as well as of an impairment of the insiginficant investments in the amount of €1.0 million. During 2022 no impairment was recorded. During 2023 fair value adjustments of € (5.2) million (2022: € (183.9) million were recorded for other long-term investments of which € (3.7) million (2022: € (172.2) million) were recorded in profit or loss and € (1.5) million (2022: € (11.7) million) in other comprehensive income. The decrease in the fair value adjustment recorded in profit or loss is mainly related to an increase in the share price of Exscientia Ltd.
60
Foreign Currency Exchange Gain (Loss), net
Foreign currency exchange loss amounted to €(2.5) million in 2023 in comparison with €13.1 million in 2022 mostly due to the strengthened EUR vs USD from 1.067 as per December 31, 2022 to 1.105 as per December 31, 2023 which resulted in a devaluation in particular of the USD denominated cash and receivables after conversion in EUR.
Current tax expense and Deferred Taxes
Current tax expense and deferred tax expense decreased by €18.4 million or -84.7% to €3.3 million for the year ended December 31, 2023, compared to €21.7 million for the year ended December 31, 2022, Deferred tax expense decreased from €7.7 million in 2022 to €3.7 million in 2023 primarily relating to intangible assets. Current tax expense decreased from €14.0 million in 2022 to €7.0 million in 2023. The reduction in the current tax expense is generally a result of decreased taxable profits in Evotec International GmbH, Evotec ID (Lyon) SAS, Cyprotex Discovery Ltd and Aptuit (Verona) Srl.
The decrease in the effective tax rate between 2023 and 2022 is due mainly to the change in recognition of the deferred tax asset in 2023.
We recognize deferred tax assets to the extent that it is probable that future taxable income will be available against which the deductible temporary differences, unused carry forward tax losses and unused tax credits can be utilized. This judgment is made annually and based on budgets and business plans.
Operating Results by Segments
The following tables detail our segment Revenues and Operating income for the years ended December 31, 2023, 2022 and 2021 for each segment:
|
|
Year ended December 31, 2023 |
||||||
|
|
|
|
|
|
Intersegment |
|
|
(In € thousands) |
|
EVT Execute |
|
EVT Innovate |
|
elimination |
|
Evotec Group |
Revenues |
|
738,738 |
|
266,884 |
|
(224,196) |
|
781,426 |
Operating income (loss) |
|
(43,018) |
|
(4,489) |
|
— |
|
(47,507) |
|
|
Year ended December 31, 2022 |
||||||
|
|
|
|
|
|
Intersegment |
|
|
(In € thousands) |
|
EVT Execute |
|
EVT Innovate |
|
elimination |
|
Evotec Group |
Revenues |
|
735,635 |
|
204,730 |
|
(188,917) |
|
751,448 |
Operating income (loss) |
|
32,523 |
|
(11,673) |
|
— |
|
20,850 |
|
|
Year ended December 31, 2021 |
||||||
|
|
|
|
|
|
Intersegment |
|
|
(In € thousands) |
|
EVT Execute |
|
EVT Innovate |
|
elimination |
|
Evotec Group |
Revenues |
|
610,168 |
|
146,982 |
|
(139,116) |
|
618,034 |
Operating income (loss) |
|
63,109 |
|
(22,113) |
|
— |
|
40,996 |
For a segment revenue analysis see “—Revenues.”
Segment operating income/loss in the EVT Execute segment decreased by € 75.5 million or 232%, from € 32.5 million for the year ended December 31, 2022, to € (43.0) million for the year ended December 31, 2023. Gross profit amounted to € 107.4 million and decreased by 17% to previous year (€ 129.9 million). The business growth was impacted by the cyber-attack especially in Q2 and parts of Q3 2023 and the decrease in market demand for development as a main driver for backlog in revenues. This effect was partly absorbed by the contribution of Sandoz in Biologics. Selling, and general administrative expenses amounted to € 130.8 million and increased by € 5.5 million primarily due to higher personnel expenses, IT and Audit fee expenses. R&D expenses decreased from € 5.3 million in 2022 to € 4.4 million in 2023. In addition, other operating income decreased by € 3.9 million and other operating expenses increased by € 39.5 million, mainly driven by the expenses incurred as part of the recovery efforts from the cyber-attack.
61
Segment operating loss in the EVT Innovate segment decreased by €7.2 million, or 62%, from €(11.7) million for the year ended December 31, 2022, to €(4.5) million for the year ended December 31, 2023, primarily because of a €23.0 million increase in gross profit driven by higher revenues and margins from the BMS collaborations. Furthermore, R&D expenses decreased by €7.7 million primarily driven by lower expenses for proprietary projects and platform R&D (“unpartnered R&D costs”). Selling, general and administrative expenses increased by €7.9 million, mainly due to higher personnel-related expenses, IT expenses, insurance, and consultancy expenses. Other operating income and expenses (net) decreased by €15.6 million primarily driven by reduced reimbursements from Sanofi related to ID Lyon. No impairment losses of intangible assets were recorded in 2023.
The following table provides the reconciliation of segment Operating income (loss) to Segment Adjusted EBITDA for the periods presented below:
|
|
Year ended December 31, 2023 |
|
Year ended December 31, 2022 |
|
Year ended December 31, 2021 |
||||||
|
|
EVT |
|
EVT |
|
EVT |
|
EVT |
|
EVT |
|
EVT |
(In € thousands) |
|
Execute |
|
Innovate |
|
Execute |
|
Innovate |
|
Execute |
|
Innovate |
Operating income (loss) |
|
(43,018) |
|
(4,489) |
|
32,523 |
|
(11,673) |
|
63,109 |
|
(22,113) |
Depreciation of tangible assets |
|
80,656 |
|
5,377 |
|
67,698 |
|
4,979 |
|
51,687 |
|
3,909 |
Amortization of intangible assets |
|
6,876 |
|
70 |
|
8,874 |
|
108 |
|
11,930 |
|
82 |
EBITDA |
|
44,514 |
|
958 |
|
109,095 |
|
(6,586) |
|
126,726 |
|
(18,122) |
Impairment of intangible assets |
|
5,011 |
|
— |
|
— |
|
— |
|
— |
|
683 |
Impairment of goodwill |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Change in contingent consideration (earn-out) |
|
— |
|
— |
|
(839) |
|
(16) |
|
(1,934) |
|
(83) |
Cyber-related costs |
|
15,869 |
|
— |
|
— |
|
— |
|
— |
|
— |
Segment Adjusted EBITDA |
|
65,394 |
|
958 |
|
108,256 |
|
(6,602) |
|
124,972 |
|
(17,522) |
| (1) | 2020 restated for IAS 19. |
The following tables detail our Segment Adjusted EBITDA for the years ended December 31, 2023, 2022,and 2021 for each segment:
|
|
Year ended December 31, 2023 |
||||
(In € thousands) |
|
EVT Execute |
|
EVT Innovate |
|
Evotec Group |
Segment Adjusted EBITDA (1) |
|
65,394 |
|
958 |
|
66,352 |
|
|
Year ended December 31, 2022 |
||||
(In € thousands) |
|
EVT Execute |
|
EVT Innovate |
|
Evotec Group |
Segment Adjusted EBITDA (1) |
|
108,256 |
|
(6,602) |
|
101,654 |
|
|
Year ended December 31, 2021 |
||||
(In € thousands) |
|
EVT Execute |
|
EVT Innovate |
|
Evotec Group |
Segment Adjusted EBITDA (1) |
|
124,792 |
|
(17,522) |
|
107,270 |
| (1) | Segment Adjusted EBITDA is a non-GAAP measure and is defined as segment operating income adjusted for depreciation and amortization of intangibles, impairments on goodwill and other intangible and tangible assets and change in contingent consideration (earn-out), as well as other items that in magnitude, nature or occurrence would distort the presentation of the financial performance of Evotec. . For a reconciliation of Adjusted EBITDA to net income (loss) on a group level see “—Key Performance Metrics and Non-IFRS Measures—Adjusted EBITDA. Segment Adjusted EBITDA is reconciled to segment operating income because certain items, including taxes and interest, are only accounted for on a group-wide basis and cannot be tracked on a segment basis. Segment operating income/(loss) is the most directly comparable financial measure calculated and presented in accordance with IFRS-IASB. |
Segment Adjusted EBITDA in the EVT Execute segment decreased by € 42.9 million, or 40%, from €108.3 million in 2022 to €65.4 million in 2023, primarily driven by higher other operating expenses resulting from cyber-attack amounting to € 43.5 m which was fully allocated to Execute Segment, as EVT Execute is the owner of the associated IT infrastructure that was impacted by the attack.
62
Segment Adjusted EBITDA in the EVT Innovate segment increased by €7.6 million from a loss of €(6.6) million in 2022 to a profit of €1.0 million in 2023, primarily driven by a better top line performance in revenues due to the BMS contribution despite substantially lower revenues from milestones, upfronts and licenses in 2023 versus 2022.
Key Performance Metrics and Non-IFRS Measures
We review several key performance metrics and non-IFRS measures to assess the progress of our business, make decisions about where to allocate time and investments and assess the near-term and longer-term performance of our business. The measures set forth below should be considered in addition to, not as a substitute for or in isolation from, our financial results prepared in accordance with IFRS. The following table sets forth these metrics as of and for the periods presented:
|
|
Years Ended December 31, |
|
|||||||
|
|
2023 |
|
2022 |
|
2021 |
|
|||
|
|
(In thousands, except number of customers, number of customers > €1 million revenue, repeat business) |
|
|||||||
Revenues |
|
|
781,426 |
|
|
751,448 |
|
|
618,034 |
|
Unpartnered R&D expenses |
|
|
(64,818) |
|
|
(70,204) |
|
|
(58,117) |
|
Net income |
|
|
(83,913) |
|
|
(175,655) |
|
|
215,510 |
|
Adjusted EBITDA |
|
|
66,352 |
|
|
101,654 |
|
|
107,270 |
|
Number of customers |
|
|
838 |
|
|
819 |
|
|
842 |
|
Number of customers > €1 million revenue |
|
|
102 |
|
|
118 |
|
|
97 |
|
Annual repeat business |
|
|
93 |
% |
|
92 |
% |
|
91 |
% |
Revenues
Revenue is generated through each of Evotec’s collaboration arrangements dependable on the nature of contract with Evotec’s customers, the (co-)ownership of the intellectual property and the stage of the project. Revenues are recognized from partners owning the IP and includes mainly fee-for-service and FTE-rate based arrangements. In addition to FTE-based revenues other revenues are generated from milestones, royalties and IFRS15. Our revenues were € 781.4 m and € 751.4 m in 2023 and 2022, respectively. Thereof, € 9.4 m and € 10.6 m in 2023 and 2022 are related to private grants.
Unpartnered R&D Expenses
We distinguish between partnered and unpartnered R&D. Partnered R&D is where we bear the expenses and are refunded by our partners. Unpartnered R&D is conducted at our own expense. We intend to partner those programs and projects with pharmaceutical and biotechnology companies upon achievement of key early inflection points.
Our unpartnered R&D expenses were €64.8 million and €70.2 million in 2023 and 2022, respectively.
Net Income
Our net income increased by €91.7 million, or 52.2%, from €(175.7) million in 2022 to €(83.9) million in 2023 mainly driven by the change in share price of Exscientia and partly offset by higher operation expenses linked to the costs that occurred after the cyber-attack.
Adjusted EBITDA
Adjusted Group EBITDA is defined as net income (loss) adjusted for interest, taxes, depreciation and amortization of intangibles, impairments on goodwill and other intangible and tangible assets, total non-operating results, change in contingent consideration (earn-out) and items that in magnitude, nature or occurrence would distort the presentation of the financial performance of the Group.
63
Adjusted EBITDA is a non-IFRS measure presented as a supplemental measure of our performance. Adjusted EBITDA should not be considered as an alternative to net income as a measure of financial performance. Adjusted EBITDA is presented because it is a key metric used by our Management Board to assess our financial performance. Management believes Adjusted EBITDA is an appropriate measure of operating performance because it eliminates the impact of expenses that do not relate directly to the performance of the underlying business. Our definition of this non-IFRS financial measure may not be comparable to similarly titled measures of other companies, thereby, reducing the usefulness of our Adjusted EBITDA as a tool for comparison.
Adjusted EBITDA decreased by € 35.3m, or 35%, from € 101.7 m in 2022 to € 66.4 m in 2023. The overall slowdown in Q2 on revenues after the cyber-attack was compensated by the contribution of the Sandoz and BMS collaborations which led to a small increase of Gross profit by €1m. R&D expenses also positively affected adjusted EBITDA as a decrease was seen in 2023 compared to 2022 by € 8.1m. The increase in SG&A expenses by € 13.4 m, or 9%, from € 156.2 m in 2022 to € 169.6 m in 2023 was mainly driven by personal and consultancy expenses across all disciplines, impacted the overall result negatively. A strong driver for the lower adjusted EBITDA in 2023 compared to previous year were the one-off expenses for cyber related cost which increased the other operating expenses.
The following table provides the reconciliation of net income to Adjusted EBITDA for the periods presented below:
|
|
Years Ended December 31, |
||||
(In € thousands) |
|
2023 |
|
2022 |
|
2021 |
Net income |
|
(83,913) |
|
(175,655) |
|
215,520 |
Interest expense (net) |
|
2,475 |
|
4,814 |
|
6,982 |
Tax expense |
|
3,320 |
|
21,698 |
|
21,470 |
Depreciation of intangible assets |
|
86,040 |
|
72,677 |
|
55,596 |
Amortization of intangible assets |
|
6,946 |
|
8,982 |
|
12,012 |
EBITDA |
|
14,869 |
|
(67,484) |
|
311,570 |
Impairment of intangible assets |
|
5,011 |
|
— |
|
683 |
Impairment of goodwill |
|
— |
|
— |
|
— |
Measurement result from investment |
|
9,143 |
|
172,159 |
|
(223,791) |
Share of loss of associates accounted for using the equity method |
|
20,752 |
|
15,098 |
|
28,433 |
Other income from financial assets, net |
|
— |
|
— |
|
174 |
Gain from bargain purchase |
|
— |
|
(4,908) |
|
— |
Foreign currency exchange (loss) gain, net |
|
2,523 |
|
(13,083) |
|
(7,843) |
Other non-operating income, net |
|
(1,809) |
|
727 |
|
61 |
Change in contingent consideration (earn-out) |
|
— |
|
(855) |
|
(2,017) |
Cyber-related costs |
|
15,869 |
|
— |
|
— |
Adjusted EBITDA |
|
66,359 |
|
101,654 |
|
107,270 |
64
Number of Customers
Our number of customers slightly increased from 819 in 2022 to 838 in 2023. An entity with multiple subsidiaries, segments, or divisions is defined and counted as a single customer, even if we have separate agreements with multiple subsidiaries, segments, or divisions that are part of the same entity.
Number of Customers Who Contributed More Than €1 million to Our Revenue
The number of customers who contributed more than €1 million to our revenue was 102 and 118 in 2023 and 2022, respectively.
Evotec’s largest three customers by revenue collectively accounted for 35% of revenues from contracts with customers in 2023. In 2022, Evotec’s three largest customers by revenue contributed 25% to our revenues. The percentage of our revenues generated from our three largest customers has increased in 2023. Other than BMS, no single customer contributed more than 10% of group revenues.
Repeat Business
We define annual repeat business as the percentage of revenues with customers who have purchased products and services from us at least once in both the current year and the previous year. We review repeat business on a yearly basis. Repeat business was 93% and 92% in 2023 and 2022, respectively. We believe our significant amount of repeat business is primarily due to our ability to achieve success and high satisfaction of our partners and customers. The extent to which we generate repeat business from our customers will be an important factor in our continued revenue growth.
| B. | Liquidity and capital resources. |
We have historically funded our operations primarily through cash received in the ongoing operation of our business, from equity financing through private placements, and from the issuance of promissory notes or the incurrence of bank debt. As of December 31, 2023, the company had available, yet undrawn credit lines in the amount of € 141.1m. Cash and cash equivalents are invested in accordance with our investment policy, primarily with a view to maintaining principal flexibility, liquidity, and capital preservation, and consist primarily of cash in banks and on hand, fixed deposits, and short-term deposits with an original maturity of three months or less. As of December 31, 2023, we had cash and cash equivalents of €510.9 million and short-term investments (corporate bonds and time deposits with maturities of less than three months) of €93.2 million. As of December 31, 2023, 68% of our cash, cash equivalents and investments were held in Germany, of which 67%, 32% and 1% were in Euros, U.S. dollars and pound sterling, respectively. 32% of our cash, cash equivalents and investments were held outside of Germany, of which 56% was held in France and Italy, mainly in Euros and U.S. dollars, 21% was held in the United Kingdom mainly in pound sterling and U.S.dollars, 21% in the United States, mainly in U.S. dollars and 1%were held in Austria mainly in Euros.
In October 2021, we signed a finance loan with the Banque publique d’investissement (Bpifrance) with a line of credit amounting to €43.3 million to support the J.POD EU construction. The loan has a fixed interest rate of 0.55%. The total amount will be provided in various tranches from 2021 to 2025. Until December 31, 2023, €27.0 million was drawn. This loan is unsecured and we are not subject to any covenants. The repayment is settled quarterly beginning in 2025. EUR 33.2 million (77%) out of the total loan amount (EUR 43.3 million) can be converted into a forgivable loan. An amount of EUR 20.8 million has been subsequently reclassified from Non-Current Liability to Deferred Income in June 2024 as we determined that conditions were substantially met for forgiveness.
The promissory notes issued in June 2019 aggregated to a principal amount of €250.0 million. The promissory notes have fixed and variable interest rates and have three, five, seven, and 10-year maturities. The three-year maturity of €35.0 million was repaid as scheduled in June 2022 so the remaining amount of the promissory notes amounts to €215.0 million. The five-year tranches of €108.5 million have been repaid upon maturity in June 2024.
65
European Investment Bank Loans
In 2017, we signed a financing agreement with a line of credit amounting up to €75.0 million with the European Investment Bank (EIB). Under the agreement, the total amount was provided in various tranches from 2017 until 2020. The final tranche was drawn in September 2020. Each tranche carries a fixed interest rate of 1.6%. Such interest is due and payable semi-annual or where a tranche is canceled or prepaid. The maturity date for each tranche is seven years from the respective disbursement date of the relevant tranche. We are subject to two financial covenants, net debt leverage and equity ratio. As of December 31, 2023, we comply with the financial covenants. The financing agreement also includes a success share, which is paid as a percentage of future proceeds from the R&D projects for the years 2024 to 2030 and equity investments if these succeed for the period until 2030.
In December 2022, we signed a second financing agreement with the European Investment Bank. This line of credit amounts up to €150.0 million. Under this agreement, the total amount will be provided in various tranches from 2023 until 2025. Each tranche carries a fixed interest rate of0.8%. Such interest is due and payable semi-annual or where a tranche is canceled or prepaid. The maturity date for each tranche is seven years from the respective disbursement date of the relevant tranche. We are subject to one financial covenant, the net debt leverage ratio. As of December 31, 2023, we have drawn two tranches with a total value of € 93.3 tranche under this new loan facility. The financing agreement also includes a success share, which is paid as a percentage of future proceeds from the R&D projects for the years 2028 to 2037 and equity investments if these succeed until 2037.
R&D Innovation Financing
Our R&D innovation financing loans amounted to €5.6 million with a fixed interest rate of 1.2% as of December 31, 2023, and final maturity dates ranging from 2025 to 2029. The R&D innovation financing relates to three individual R&D projects that were financed by IKB Deutsche Industriebank AG through KfW Bank. As of December 31, 2023, we drew down all tranches in an aggregate principal amount of €8.6 million in line with project progress and repaid €3.0 million of the loan until December 31, 2023.
In March 2021, we entered and drew down on a new long-term innovation-financing loan provided by IKB Deutsche Industriebank AG through KfW Bank for €20.4 million with a fixed interest rate of 1.4%. With the loan, we received a grant from KfW Bank for €0.2 million. This loan is unsecured and not directly related to a specific R&D project. We started to repay in quarterly installments in 2023. Until the end of 2023 we have repaid € 1.9 m through KfW financed innovation financing loans for the additional IKB loan.
Evotec acquired three unsecured research loans with Rigenerand Srl in July 2022 totaling €0.8 m at the end of 2023. The first loan from Sanfelice 1893 Banco Popolare,matured in September 2023. The second loan is also from Sanfelice 1893 Banco Popolare and amounted to € 0.4 million with a variable interest rate of 4.5% and final maturity in May 2027. The third loan is from Banco BPM S.p.A., and amounted to € 0.3 million with a fixed interest rate of 1.3% and final maturity in November 2026.
Loan Maturities
|
|
Years Ended December 31, |
||||
(In € thousands) |
|
2023 |
|
2022 |
|
2021 |
Less than one year |
|
128,513 |
|
1,358 |
|
36,136 |
Between one and five years |
|
152,464 |
|
247,732 |
|
226,353 |
More than five years |
|
155,092 |
|
80,760 |
|
99,991 |
Total |
|
436,070 |
|
329,850 |
|
362,480 |
66
Other Contractual Obligations and Commitments
Our contractual obligations, other than the financing agreements and related interest rate swaps detailed in the “Liquidity and CapEx” section, consist mainly of lease obligations capitalized under IFRS 16. Lease obligations are our future minimum commitments under lease agreements within the scope of IFRS 16 and are reflected on the balance sheet in our audited consolidated financial statements included elsewhere in this annual report. Lease agreements, which were not recognized in accordance with the exemptions in IFRS 16, are not material and therefore not presented here. In addition, we regularly enter several smaller contractual obligations related to our operations or facilities, such as the supply of inventories, power supply and insurance. Our contractual obligations as of December 31, 2023, include lease obligations for lease liabilities of € 53,640 thousands, reflecting our future minimum lease commitments. As of December 31, 2023, € 1,192 thousands of the committed lease payments associated with lease liabilities and other lease obligations will occur in the next 12 months, € 14,304 thousands between January 1, 2024, and December 31, 2027. The remaining lease payments of € 38,144 thousands will occur after December 31, 2027.
We license or acquire certain third-party intellectual property to utilize in our business. Under these agreements, we are required to pay milestones, dependent on development progress and/or royalties and milestones dependent on present and future net income or on sublicensing fees received from third parties. However, it is not possible to predict the maximum potential number of future payments under these agreements due to the conditional nature of our obligations and the unique facts and circumstances involved in each agreement. There are no off-balance sheet obligations other than those disclosed above.
CapEx
To facilitate the continued growth of our company, we regularly invest in upgrading and expanding our technology and infrastructure. For example, we have made major enhancements to our technology platform regarding the areas of translational biology, high-content imaging and proteomics. Additionally, we have made our scientific operations more efficient by adding additional state-of-the-art sample management technology. We continued our investments in the expansion and development of individual locations into 2023. We have ongoing expansion projects in Hamburg, Toulouse and Manchester.
We have completed construction of our first J.POD facility in North America, an integral part of the J.DESIGN platform of Just—Evotec Biologics. In 2022, we started the construction of our second J.POD facility in Toulouse. We also continue to further upgrade and digitize our administrative tools and systems. In 2024, we expect to spend another €170 million to secure the further growth and scalability of our company. We expect to require roughly € 80 million for our two J.POD facilities, one in Redmond, Washington and in Toulouse, France. Planning of construction in France began in April, we expect to commit to 2021 and construction started in September 2022 (supported by related funding from French authorities). The second J.POD is expected to be operational in the first quarter of 2025. At other sites we expect to commit new CapEx of roughly € 90 million in 2024. This includes next to investments into lab equipment to maintain the highest technology and infrastructure also investments into facilities expansion like the new iPSC lighthouse building in Hamburg or the capacity expansion of our DMPK business in Macclesfield (UK).
We plan to fund additional CapEx through cash on hand and debt financing.
Comparative Cash Flows
The following table summarizes the primary sources and uses of cash for each period presented:
|
|
Year Ended December 31, |
||||
(In € thousands) |
|
2023 |
|
20221 |
|
20211 |
Net cash flows provided by (used in): |
|
|
|
|
|
|
Operating activities |
|
36,439 |
|
205,811 |
|
126,599 |
Investing activities |
|
(13,291) |
|
(412,797) |
|
(242,794) |
Financing activities |
|
71,963 |
|
(58,145) |
|
393,007 |
Total cash outflow |
|
95,111 |
|
(265,131) |
|
276,812 |
¹ Interest received and interest paid have been reallocated from the operating cash flow to the investing cash flow and the financing cash flow. The previous year numbers from 2022 and 2021 have been adjusted accordingly. The change was made to provide a clearer picture of the financial position.
67
Cash Flow from Operating Activities
Net cash flows from operating activities are primarily derived from partnered projects and the sale of products and services rendered. Our cash flows from operating activities are significantly influenced by our use of cash for operating expenses and working capital to support the business.
For the fiscal year ended December 31, 2023, operating activities generated € 36.4 million in cash and cash equivalents. The main components of cash flow from operating activities include the net loss of € 84 million, offset by non-cash charges of € 143.2 million, which included depreciation and amortization of € 93.0 million and share of profit from associates of € 20.8 million. Further, the changes net working capital amounted to € (9.9) million.
For the fiscal year ended December 31, 2022, operating activities generated € 205.8 million in cash and cash equivalents. The amount primarily resulted from a prepayment of $ 200 million from BMS for the expansion of our protein degradation collaboration. Net Loss amounted to € (175.7) million, after consideration of non-cash charges of €294.7 million, which included the fair value adjustment of our investment in Exscientia plc of €(174.7) million, and changes in operating assets and liabilities of € 104.5 million. The increase in operating assets and liabilities was mainly driven by the above-mentioned prepayment from BMS for the extension of the protein degradation collaboration, partially offset by an increase in receivables of €38.4 million due to the overall revenue growth and prepayments from BMS/Celgene and an increase in other assets of €80.3 million.
Cash Flow from Investing Activities
During the year ended December 31, 2023, cash used in investing activities amounted to € 13.3 million which consisted of purchases of in the amount of € 48.4 million, purchases of investments in associated companies and other long-term investments of € 16.5 million (including in respect of € 3.5 million invested in Centauri Therapeutics., € 3.4 million invested in Tubulis GmbH, € 2.4 million invested in Autobahn Labs LLC, € 2.0 million invested in Topas Therapeutics GmbH, as well as several ok, du wother invested with amounts below €2 million), divestment of investments in associated companies and minorities of € 1.4 million, purchases of property, plant and equipment in the amount of € 213.3 million (including in respect of € 110.2 million invested in the J.POD EU facility in Toulouse) and the issue of convertible loans to affiliated companies of € 7.1 million partially offset by € 260.4 million of proceeds from the sale of current investments, by proceeds in relation with the acquisition of NephTera of € 2.1 million as well as proceeds from the sale of property, plant and equipment and intangible assets of € 0.5 million .
During the year ended 31 December 2022 , cash used in investing activities amounted to € 413 million which consisted of purchases of current investments in the amount of € 355.8 million, purchases of investments in associated companies and other long-term investments of € 58.8 million (including in respect of € 20.3 million invested in Sernova Corp., €11.3million invested in Dark Therapeutics Ltd, €4.4 million invested in IMIDomics, €3.6 million invested in Autobahn Labs LLC, €3.4 million invested in Tubulis GmbH as well as several other invested with amounts below €3 million), purchases of property, plant and equipment in the amount of € 181 million (including in respect of €73.7 million invested in the J.POD U.S. facility in Redmond as well as in Just – Evotec Biologics in Seattle and J.POD EU facility in Toulouse) and the issue of convertible loans to affiliated companies of € 4.1 million partially offset by €205.2 million of proceeds from the sale of current investments.
Cash Flow from Financing Activities
Our primary financing activities consist of issuances of share capital, proceeds from/payments of bank loans and payments of finance lease liabilities.
Net cash provided in 2023 in financing activities for the year ended December 31, 2023, was € 72.0 million which consisted of R&D and investment financing of € 112.9 million and repayment of lease obligations amounting to € 22.4 million. The repayment of loans included mainly the repayment of revolving credit lines. Proceeds from option exercise amounted to € 0.2 million.
Net cash used in financing activities for the year ended December 31, 2022, was €58.1 million which consisted of the repayment of loans amounting to € 34.1 million and repayment of lease obligations amounting to € 19.0 million. The repayment of loans included the three-year tranche of the promissory note of €35.0 million. Proceeds from a capital increase and proceeds from option exercise amounted to € 0.4 million and € 0.3 million, respectively.
68
| C. | Research and development, patents and licenses, etc. |
See Item 4 “Business Overview” and “Operating and Financial Review and Prospects—A. Operating Results” in this Item 5.
| D. | Trend information. |
See the description of “Operating Results” in this Item 5 within this annual report.
| E. | Critical Accounting Estimates. |
The consolidated financial statements have been prepared in accordance with IFRS and its interpretations as issued by the IASB. For a discussion of our significant accounting policies and other estimates, please see “Summary of significant accounting policies” in note 2 in the notes to our consolidated financial statements included in this annual report.
Item 6. Directors, Senior Management and Employees
| A. | Directors and senior management |
Two-Tiered Board Structure
We are a European public company with limited liability (Societas Europaea or SE) (also referred to as European stock corporation, and in the official terminology of the European legislation referred to as European public limited-liability company), having its seat in Germany with a two-tiered governance structure. Hence, our corporate bodies are the Management Board (Vorstand), the Supervisory Board (Aufsichtsrat) and the shareholders’ meeting (Hauptversammlung). Our Management and Supervisory Boards are entirely separate, and, as a rule, no individual may simultaneously be a member of both boards.
Our Management Board is responsible for the day-to-day management of our business in accordance with applicable laws, our Articles of Association (Satzung) and the Management Board’s internal rules of procedure (Geschäftsordnung des Vorstands).
The principal function of our Supervisory Board is to supervise our Management Board. The Supervisory Board is also responsible for appointing and removing the members of our Management Board, representing us in connection with transactions between a current or former member of the Management Board and us, and reviewing and approving when appropriate certain significant matters.
Management Board (Vorstand)
The following table sets forth the names and functions of the current members of our Management Board, their ages:
Name |
|
Age |
|
Position |
Werner Lanthaler, Ph.D. |
|
55 |
|
CEO (until Jan 2024) |
Mario Polywka, D.Phil. |
|
60 |
|
CEO (from Jan to June 2024) |
Christian Wojczewski, Ph.D |
|
53 |
|
CEO (since July 2024) |
Aurélie Dalbiez |
|
47 |
|
CPO (since June 2024) |
Cord Dohrmann, Ph.D. |
|
59 |
|
Chief Scientific Officer |
Craig Johnstone, Ph.D. |
|
54 |
|
Chief Operating Officer |
Enno Spillner |
|
54 |
|
Chief Financial Officer(“CFO”) (until March 2023) |
Laetitia Rouxel |
|
50 |
|
CFO (since April 2023) |
Matthias Evers, Ph.D |
|
50 |
|
Chief Business Officer |
The business address of the members of our Management Board is the same as our business address: Essener Bogen 7, 22419 Hamburg, Germany.
69
The following is a summary of the business experience of the members of our Management Board (as of end 2022):
Dr. Werner Lanthaler served as CEO of Evotec since March 2009 until January 3, 2024. Prior to joining Evotec, from 2000 to 2009, Dr. Lanthaler served as CFO at Intercell AG, a biotechnology company focused on the development of prophylactic and therapeutic vaccines against infectious diseases. Dr. Lanthaler serves on the board of directors of AC Immune SA (since early 2018) and arGEN-X in Breda, the Netherlands. Dr. Lanthaler holds a doctorate degree in economics from Vienna University, a master’s degree from Harvard University, and a degree in psychology.
Dr. Mario Polywka was appointed as interim CEO as of January 15, 2024 until end of June 2024. In June 2019, he was appointed Member of the Supervisory Board. Dr. Polywka also served as a member of the Management Board of Evotec AG from November 2007 to December 2018, including as Chief Operating Officer. Dr. Polywka is also a Non-Executive member of the Board of Directors Exscientia PLC, Orbit Discovery Ltd and Blacksmith Medicines Inc., was a Non-Executive Director at C4X Discovery plc. until end of January 2024, and has accepted a position as Senior Advisor at MCF Corporate Finance. He holds a doctorate degree in mechanistic organometallic chemistry from the University of Oxford.
Dr. Christian Wojczewski joined Evotec as CEO on July 1, 2024. Dr. Wojczewski has over 20 years of experience in various management positions, most recently at Mediq and Linde Healthcare. In 2017, he joined Mediq in the Netherlands, a European leader in medical devices and related services, as group CEO. In 2005, he joined Linde, a global market leader for medical and industrial gases. Previously, he worked as a Manager at McKinsey for companies in the life science and chemical industries in Europe and the US. Dr. Wojczewski holds a Diploma and a doctorate in chemistry from the Johann Wolfgang Goethe-University in Frankfurt am Main.
Dr. Cord Dohrmann has served as Chief Scientific Officer of Evotec since September 2010. From 2000 to 2010, Dr. Dohrmann served in various management positions including as the Chief Scientific and CEO at DeveloGen AG, a drug discovery company focused on the development of novel therapies for diabetes and obesity. Evotec acquired DeveloGen in 2010. Dr. Dohrmann serves on the Supervisory Board of Eternygen GmbH and Breakpoint Therapeutics,. Dr. Dohrmann is a member of the German Council of Science and Humanities. He is also a Non-Executive member of the Board of FSHD (Facioscapulohumeral Muscular Dystrophy) Unlimited in Leiden, the Netherlands. Dr. Dohrmann holds an undergraduate degree in biology from Tübingen University, a master’s degree in molecular biology from the Max-Planck Institut and a doctorate in cellular and molecular biology from Harvard Medical School.
Dr. Craig Johnstone has served as Chief Operating Officer of Evotec since January 2019. Dr. Johnstone joined Evotec in 2012 as the Senior Vice President of Drug Discovery and Innovation Efficiency. In 2015, he was appointed Directeur General and Site Head of Evotec (France) SAS and, in January 2017, he became the Global Head of Integrated Drug Discovery. Dr. Johnstone does not hold any memberships in supervisory bodies. Dr. Johnstone holds a bachelor’s degree in pure and applied chemistry, as well as a doctorate degree in organic and organometallic synthesis from the University of Strathclyde.
Enno Spillner has served as CFO of Evotec from July 2016 until end of March, 2023, with oversight over various functions and departments, including finance, legal and compliance, internal audit and risk management. Prior to his tenure at Evotec from 2013 to 2016, Mr. Spillner served as chairperson of the Management Board, CEO, and CFO and, from September 2005 to March 2013, as CFO of 4SC AG, Munich-Martinsried, a publicly listed company on the Frankfurt Stock Exchange and a developer of innovative, small-molecule drugs to combat cancer. Since December 2020, Mr. Spillner also has served as a Non-Executive Member of the Board of Directors and chairperson of the Audit Committee at Nasdaq-listed Nanobiotix SA, Paris. Recently he served on the supervisory board of Leon-Nanodrugs GmbH, Munich. Mr. Spillner holds a Dipl.-Kaufmann degree (master’s degree in business) from the University of Bamberg.
Laetitia Rouxel was appointed as CFO from April 2023 with oversight over various functions and departments, including finance, legal and compliance, internal audit, and risk management. Before joining Evotec, she was Global CFO of Wavin Group, a solutions leader for the building and infrastructure industry. A graduate of the French Business school ISG, she started her career with finance and commercial roles in the Pharma industry at Pfizer Pharmaceuticals and Johnson & Johnson. She went on to work for the French food-products corporation Danone, and then joined the beauty company Coty in Switzerland as divisional CFO.
70
Dr. Matthias Evers was appointed as Chief Business Officer of Evotec on May 1, 2022. Matthias is responsible for business development / partnering, the Just-Evotec Biologics business, digital technology, and strategy across the entire company. Prior to joining Evotec, Matthias accumulated 20 years of experience as Senior Partner with the consulting firm McKinsey & Company, Inc. where he co-led R&D in Life Sciences globally and served on the Firm’s most senior Knowledge and People Committees, respectively. Matthias was a Postdoctoral Fellow at the Center for Molecular Neurobiology Hamburg (ZMNH) and holds a Ph.D. based on his work in molecular biology and bioinformatics from the University of Bochum (Germany) where he also earned his MSc in Biochemistry.
Aurélie Dalbiez was appointed as Chief People Officer of Evotec on June 15, 2024. Aurélie is responsible for the development and implementation of Evotec’s people strategy, focusing on fostering a culture of innovation, collaboration and belonging. Prior to joining Evotec, Aurélie served as the Chief Human Resources Officer (“CHRO”) at Corbion N.V., a global bio-based ingredients company headquartered in Amsterdam, Netherlands. Previously, she was Head of HR for the Capsules and Health Ingredients business at Lonza, based in Basel, Switzerland. Prior to that, she worked for 12 years in various HR roles at Novartis. She started her career in the banking industry, first at Deutsche Bank and later at Capital Group. She earned her university degree in International Business in Lyon, France.
Supervisory Board (Aufsichtsrat)
The following table sets forth the names and functions of the members of our Supervisory Board, their ages, their terms (which expire on the date of the relevant year’s general shareholders’ meeting) and their principal occupations outside of our Company:
Name |
|
Age |
|
Position |
Prof. Dr. Löw-Friedrich |
|
63 |
|
Chief Medical Officer and Executive Vice President of UCB S.A. |
Camilla Macapili Languille |
|
40 |
|
Head of Life Sciences, Mubadala Investment Company |
Dr. Elaine Sullivan (until June 2024) |
|
62 |
|
Independent consultant; CEO of KELTIC Pharma Therapeutics Ltd. (until May 2023) |
Dr. Constanze Ulmer-Eilfort |
|
61 |
|
Partner at PSP München |
Roland Sackers |
|
55 |
|
CFO and Managing Director at QIAGEN N.V. |
Dr. Mario Polywka (until June 2024)1 |
|
60 |
|
Independent consultant and former member of the Management Board of Evotec SE |
Dr. Duncan McHale (since June 2024) |
|
67 |
|
Founder and Company Director of Weatherden Ltd, London, UK |
Wesley Wheeler (since June 2024) |
|
57 |
|
Operating Advisor to KKR, Madison Dearborn Partners and Edgewater Capital |
1 |
Dr. Mario Polywka was a member of the Supervisory Board throughout Financial Year 2023. Between January 15, 2024, and June 30, 2024 his mandate at the Supervisory Board was paused due to his assignment as interim CEO of the Company |
The business address of the members of our Supervisory Board is the same as our business address: Essener Bogen 7, 22419 Hamburg, Germany.
The following is a summary of the prior business experience of the members of our Supervisory Board:
Prof. Dr. Iris Löw-Friedrich has served as a Member of the Supervisory Board at Evotec since June 2014, her appointment to Chairwoman of the Supervisory Board of Evotec SE took place in 2021. Since 2008, Prof. Dr. Löw-Friedrich has served as Chief Medical Officer and Executive Vice President of Development and Medical Practices at UCB S.A., Brussels (Belgium), a biopharma company focusing on neurology and immunology. Since April 2014, Prof. Dr. Löw-Friedrich has served as a Member of the Board of Directors at TransCelerate BioPharma Inc. and, since May 2016, as a Member of the Supervisory Board of Fresenius SE & Co. KGaA. She is also a member of the Board of Directors at PhRMA Foundation in Washington D.C., United States. Prof. Dr. Löw-Friedrich holds a doctorate degree in medicine from the University of Frankfurt.
71
Camilla Macapili Languille was appointed a Member of the Supervisory Board in June 2020. She leads the unit for Life Sciences investments at Mubadala Investment Company (“MIC”), a sovereign wealth fund based in Abu Dhabi. Before joining Mubadala, Camilla Macapili Languille worked in M&A for Daiwa Capital and Société Générale in Paris, France, where she specialised in cross-border transactions in various sectors. She began her career in healthcare M&A at JPMorgan in New York and London, where she focused on pharma and biotech. She also serves as a Member of the Board of Directors at PCI Pharma Services (KPCI Holdings Limited), Philadelphia/United States (not listed), at Norstella (Caerus PikCo S.A.R.L.), New York/US- listed) (until December 2023), at Envirotainer A/S, Stockholm/Sweden (not listed) and since December 2023 at va-Q-tec AG, Würzburg/Germany(listed on the Frankfurt Stock Exchange until August 30, 2023). Camilla Macapili Languille holds a Bachelor of Economics & Political Science degree from Columbia University.
Dr. Elaine Sullivan has served as a Member of the Supervisory Board between June 2015 and June 2024. Dr. Sullivan is a non-executive director at the IP Group plc, hVIVO plc, Active Biotech AB, and Nykode Therapeutics ASA and member of the Supervisory Board at Zealand Pharma A/S based in Denmark. She co-founded and was CEO of Carrick Therapeutics, a European oncology company. Dr. Sullivan was the CEO of Keltic Pharma Therapeutics, a company with a focus on severe asthma, neuropsychiatric disorders, and malaria. She holds a doctorate degree in molecular biology and virology from the University of Edinburgh and a bachelor’s degree in molecular biology from the University of Glasgow.
Roland Sackers has served as a Member of the Supervisory Board since June 2019 and is chairman of the audit committee. Since 2004, Mr. Sackers has been CFO of QIAGEN N.V. In 2006, Mr. Sackers became a member of the Managing Board. Between 1995 and 1999, he served as an auditor with Arthur Andersen Wirtschaftsprüfungsgesellschaft Steuerberatungsgesellschaft. He is a former member of the supervisory board and audit committee of IBS AG and a former member of the board of directors of Operon Biotechnologies, Inc. Mr. Sackers is as a board member of the industry association BIO Deutschland. He was previously a non-executive director and chair of the audit committee from 2011 to 2018 of Immunodiagnostic Systems Holding PLC (IDS), a leading producer of immunological tests for research and diagnostic applications publicly listed in the United Kingdom. Mr. Sackers earned his Diplom-Kaufmann from University of Münster, Germany.
Dr. Constanze Ulmer-Eilfort was appointed a Member of the Supervisory Board in June 2021. As a Partner with the law firm Peter, Schönberger & Partner (PSP München), she advises on a wide range of agreements, including cooperation and licensing agreements, R&D agreements and agreements with academic institutions. Previously, since 1994, Dr. Ulmer-Eilfort has worked at Baker McKenzie serving in several roles, including as Equity Partner since 2000, Member of the Global Executive Committee between 2017 and 2021, and as Managing Partner in the German and Austrian offices from 2012 to 2017. She serves as a Member of Supervisory Board at Affimed NV, Mannheim/Germany (listed on the NASDAQ) and as a Member of the Advisory Board at Proxygen GmbH, Vienna/Austria (not listed). Dr. Ulmer-Eilfort also serves as Chair of the Advisory Committee at S4DX GmbH, a biotechnology start-up based in Munich since May 2021. Dr. Ulmer-Eilfort holds a law degree from the University of Munich, a Master of Laws degree from the University of Pennsylvania Law School, and a doctorate degree in law from the University of Berlin.
Dr. Duncan McHale was appointed a Member of the Supervisory Board in June 2024. He is the Founder and Company Director of Weatherden Ltd, based in London, UK, a position he has held since 2017. Prior to this, Duncan served as the Chief Medical Officer at Evelo Biosciences from 2017 to 2023. From 2011 to 2017, he was the Vice President and Head of Global Exploratory Development at UCB. Between 2008 and 2011, he held various positions at AstraZeneca, culminating in the role of Vice President of Personalized Healthcare and Biomarkers. His career also includes several roles at Pfizer from 1999 to 2007, with his most recent position being Executive Director, European Head of Molecular Profiling and TA lead for Pain, Sex Health, and Urology at Pfizer Global Research and Development’s Sandwich Laboratories. Duncan holds a Doctor of Philosophy (“PhD”) in Human/Medical Genetics from the University of Leeds, and earned his Bachelor of Medicine, Bachelor of Surgery from the University of Newcastle-Upon-Tyne.
Wesley Wheeler was appointed a Member of the Supervisory Board in June 2024. In his final three years at UPS, Wesley was named President of UPS Healthcare, the first vertical business unit ever created at UPS, which is a global leader in the clinical trials services industry. Previously, Wesley accepted a role as CEO of Marken, a leading privately held clinical trials logistics company. Between 2007 and 2010, he became CEO of Patheon (now a ThermoFisher company), a public company traded on the Toronto Stock Exchange. Overall, Wesley Wheeler is a 43 year operations executive starting as a project engineer with Exxon Research & Engineering (now ExxonMobil), but for the past 34 years has held many diverse leadership positions in the pharmaceutical industry. Wesley holds a Bachelor’s Degree in Mechanical Engineering and a Masters of Business Administration.
72
Changes in the Management Board and Supervisory Board
The contract with Enno Spillner as CFO ended March 31, 2023. Ms Laetitia Rouxel was appointed as new CFO with effect from April 1, 2023 for three years until March 31, 2026.
No changes occurred in the Supervisory Board in 2023.
On January 15, 2024, Dr Mario Polywka has agreed to step in as interim CEO after Dr Werner Lanthaler stepped down as CEO. His Supervisory Board mandate is inactive while he works in his role as interim CEO for up to 12 months. Management Board transition completed on July 1, 2024, with Dr Christian Wojczewski taking over as Chief Executive Officer (“CEO”) from interim CEO Dr Mario Polywka; since 15 June 2024 Aurélie Dalbiez appointed new Chief People Officer (“CPO”)
Wesley Wheeler and Duncan McHale elected to the Supervisory Board on June 10, 2024 at our Annual General Meeting.
Family Relationships
No family relationships or other arrangements exist among any members of our Management Board or Supervisory Board.
| B. | Compensation. |
Remuneration report 2023 for Evotec SE
The following remuneration report presents and explains the remuneration awarded and owed to the individual present and former members of the Management Board and Supervisory Board of Evotec SE (hereafter also known as “Company”) in the financial year 2021. The remuneration report meets the requirements of Sec. 162 AktG. This remuneration report will be presented for approval at the ordinary Annual General Meeting on June 10, 2024.
Resolution approving a remuneration system for the Executive Board and the Supervisory Board members.
The structure of remuneration and the amounts paid to the Management Board members are defined and regularly reviewed by the Supervisory Board. The review follows the recommendations of the German Corporate Governance Code as amended on April 28, 2022 (“GCGC”) and meets the requirements of Section 87 AktG.
The Company’s Supervisory Board, with the support of the Remuneration and Nomination Committee, presented a remuneration system for the members of the Company’s Management Board (the “Remuneration system 2022”) to the Annual General Meeting on June 22, 2022, for approval. The Annual General Meeting 2022 approved the Remuneration system 2022 by a majority of 94.48% of votes cast. The Remuneration system 2022 can be viewed on the website of Evotec SE at https://www.evotec.com/en/investor-relations/governance.
The Remuneration system 2022 applies to all the members of the Company’s Management Board whose contract was signed or renewed after the Remuneration system 2022 came into effect at the Annual General Meeting 2022. As of December 31, 2023, this was Dr Cord Dohrmann and Laetitia Rouxel (see B. below). The contracts with Dr Craig Johnstone and Dr Matthias Evers were signed in January 2022 and May 2022, so before the new remuneration came into effect, and run until December 2026 (COO) and April 2025 (CBO). The contract with Dr Werner Lanthaler ran from March 2021 until its early termination in January 2024. Since the contracts signed before the new remuneration system 2022 took effect still included the award of discretionary restricted shares at the start of the contract, the Supervisory Board decided not to renew these contracts early, but rather to wait until they expire and then structure any follow-on contracts in accordance with the new remuneration system.
The Company’s Annual General Meeting on June 15, 2021, confirmed the remuneration of the Supervisory Board members last amended by resolution of the Annual General Meeting 2019 with a majority of 97.83% and adopted a corresponding remuneration system for the Supervisory Board members.
73
Changes in the Management Board and Supervisory Board
The contract with Enno Spillner as Chief Financial Officer expired with effect from March 31, 2023. Laetitia Rouxel was appointed as the new Chief Financial Officer for three years with effect from April 1, 2023.
There were no changes in the Supervisory Board in 2023.
Remuneration system for Management Board members of Evotec SE
Overview of the changes to the remuneration system in 2023
After in-depth discussions with shareholders the Supervisory Board decided to present a reviewed and revised remuneration system for approval at the Annual General Meeting 2022, which was approved by 94.48% of votes cast. No changes were made to this remuneration system in 2023.
The remuneration report for 2022 was approved by the Annual General Meeting 2023 with a good 72% of votes cast. This represents a significant increase in approval compared with the remuneration report for 2021, which was only approved by 53% of the votes cast at the Annual General Meeting 2022. In this context it should be remembered that the remuneration report for 2022 described a financial year in which the old remuneration system applied for half the time, and so still permitted and reported restricted share awards to be made to the COO and CBO in the first half of the year. Financial year 2023 was governed solely by the reviewed and revised remuneration system, which was approved by the Annual General Meeting 2022 with 94.48% of the votes cast. The changes made were presented in detail in the remuneration report 2022.
Overview of main remuneration components
The remuneration of Management Board members is made up of a fixed basic salary, a short-term annual bonus, and the long-term, multi-year remuneration. Other components of the remuneration system are ancillary benefits, including pension contributions, and the payment of travel expenses. Additional remuneration components may also be paid in individual cases in connection with the beginning and end of work as a Management Board member. Any expenses incurred are counted towards the maximum remuneration.
A strong focus on the growth targets for the Evotec Group – consisting of Evotec SE and its affiliated companies – in the short-term variable remuneration (bonus) and a clear alignment of long-term variable remuneration with the share performance (Share Performance Awards) are intended to encourage sustainable increases in enterprise value and avoid external and internal disincentives. In particular the aim is to prevent the Management Board from making decisions that do not promise any sustainable commercial success in order to optimize their remuneration in the short term.
The amount of Management Board remuneration depends in particular on the responsibilities of the respective Management Board members, their individual and collective performance and the economic, financial, strategic and sustainability performance of the Evotec Group. It is intended to incentivize sustainable, long-term corporate governance and align the interests of the Management Board members with those of Company shareholders.
The remuneration of the Management Board members meets the requirements of the German Stock Corporation Act and the German Corporate Governance Code in effect at the time the respective employment contracts were signed (unless any exception is mentioned). In January 2024 the Management Board and Supervisory Board of Evotec SE updated the Declaration of Compliance pursuant to Art. 9 (1) c) ii) SE Regulation in conjunction with Section 161 German Stock Corporation Act (AktG) on the recommendations of the German Corporate Governance Code and made the following additions:
74
“Notwithstanding the recommendations G.6 and G.10, Dr Mario Polywka receives no long-term, share-based variable remuneration under the remuneration system for the Management Board for his temporary work as interim CEO from January 2024. Since he is only a member and Chair of the Management Board on an interim basis for up to one year, the Supervisory Board of Evotec SE does not believe that it reflects his interests and those of the Company to award him long-term variable remuneration whose measurement period would go well beyond his term of office on the Management Board, and therefore beyond the time for which he is able to influence the achievement of the performance targets. The spirit of the German Stock Corporation Act and the German Corporate Governance Code is also intended to prevent the incentives set by long-term share-based remuneration for provisional work on the Management Board from remaining in effect once the person has returned to the Supervisory Board, possibly giving rise to doubts about the independent exercise of its control function as a result. It is already in Dr Mario Polywka’s interest to promote the Company’s long-term welfare and to ensure its sustainable long-term performance, because after completing his interim work on the Management Board he will return to the Supervisory Board, and so requires no further incentives to do so. Once Dr Mario Polywka has finished his provisional work on the Management Board, the remuneration of the Management Board will once again comply fully with the recommendations of the Code.”
The Supervisory Board, with the support of its Remuneration and Nomination Committee, regularly appoints an external expert, currently WillisTowersWatson (“WTW”), to assess whether the scope of Management Board remuneration is appropriate and in line with market standards. To determine if the Management Board’s remuneration is appropriate in a vertical comparison, i.e. within Evotec SE, the Supervisory Board looked particularly at changes in the remuneration of senior managers and the workforce overall, also over time. WTW examined the new remuneration and confirmed that it met market standards in terms of a horizontal and vertical comparison. The Supervisory Board monitors the level of Management Board remuneration at similar companies. The peer group2 used for the last comparison in 2021 comprised German and international biotech and pharmaceutical companies of a similar size and complexity in order to reflect Evotec’s global presence and potential markets for recruiting Management Board members. In future the benchmark used for the market comparison should be based on a peer group of German companies of a similar size and an additional peer group of international companies of similar size in a similar sector. The peer group from 2021 still applies to the financial year 2023. The current peer group is also disclosed prospectively in the respective remuneration report.
Non-performance-related fixed remuneration components
Basic salary
The Management Board members receive a contractually agreed fixed basic salary that is paid in twelve monthly installments at the end of each month with the statutory payroll deductions. Basic salary is paid pro rata temporis if the Management Board member joins or leaves in the course of the year.
The Evotec Group has achieved impressive growth in the past five years: the number of employees rose from around 2,200 at the start of 2018 to rather more than 5,000 at the end of 2023, and the market capitalization increased over the same period from nearly €2 billion to sometimes more than €5 billion as the end of 2023. The parent, Evotec SE, was included in the MDAX in September 2018 and has been listed on NASDAQ since November 2021. The resulting remuneration level is below the median for the peer group. The basic salary was not changed in 2023.
The following table shows the annual basic salary for the Executive Board members in financial year 2023:
|
|
|
|
Basic salary 2023 |
|
Basic salary 2022 |
Executive Board member |
|
Function |
|
(in € k) |
|
(in € k)3 |
Dr. Werner Lanthaler |
|
CEO |
|
600 |
|
600 |
Dr. Cord Dohrmann |
|
CSO |
|
450 |
|
417 |
Dr. Matthias Evers |
|
CBO |
|
400 |
|
267 |
Dr. Craig Johnstone |
|
COO |
|
400 |
|
400 |
Laetitia Rouxel |
|
CFO |
|
338 |
|
— |
Enno Spillner |
|
CFO |
|
80 |
|
320 |
2 |
Abcam, Bachem, Biotest, Carl Zeiss Meditec, Charles River, Clinigen, Galapagos, Genmab, Ligand, Morphosys, QIAGEN, Siegfried Pharma, Stallergenes, Sartorius, Tecan and MedPace. |
3 |
The basic annual salary for Dr. Cord Johnstone was increased by €50,000 to €450,000 with effect from September 1, 2022. This means his average fixed basic salary for financial year 2022 was € 417,000. |
75
Ancillary benefits
In addition to their fixed basic salary the Management Board members receive individual ancillary benefits, such as pension contributions and school fees for their own children, travel expenses, health and accident insurance, and the monetary value of their private use of a company car or a private car allowance. Furthermore, the Supervisory Board may at its professional discretion and having determined a significant additional need, refund the expenses for extraordinary ancillary benefits (e.g. security measures) on a temporary basis. Management Board members may also receive one-off benefits, when they join the Company, for example. The following table shows the ancillary benefits for each Executive Board member.
|
|
|
|
Retirement pension |
|
Car allowance |
|
Travel expense |
|
Other |
Executive Board member |
|
Function |
|
contributions in (€ k) |
|
(in € k) |
|
allowance (in € k) |
|
(in € k)45 |
Dr. Werner Lanthaler |
|
CEO |
|
60 |
|
15 |
|
60 |
|
6 |
Dr. Cord Dohrmann |
|
CSO |
|
35 |
|
15 |
|
— |
|
6 |
Dr. Matthias Evers |
|
CBO |
|
35 |
|
15 |
|
— |
|
4 |
Dr. Craig Johnstone |
|
COO |
|
27 |
|
15 |
|
— |
|
— |
Laetitia Rouxel |
|
CFO |
|
26 |
|
— |
|
45 |
|
300 |
Enno Spillner |
|
CFO |
|
6 |
|
4 |
|
6 |
|
6 |
Performance-related variable remuneration components
In line with the principles mentioned above, the Management Board remuneration is linked to Company performance and sustainable Company growth. Under the Remuneration system 2021 that applied until the Annual General Meeting 2022, the Management Board remuneration comprised both short-term, annual remuneration (“bonus”) and long-term remuneration components (Share Performance Plan 2017 and Restricted Share Plan 2020), which were approved by the Annual General Meetings in 2017 and 2020. Payments for these components depend on achieving defined financial targets. If the targets are not achieved the payment of performance-based components may be reduced to zero. If the targets are significantly outperformed, however, the amount of the payment is capped. When the new Remuneration system 2022 took effect, the link to Company performance and sustainable Company growth described above was maintained, but the Restricted Share Plan 2020 is no longer part of the long-term remuneration component. The Share Performance Plan 2017 was replaced by the Share Performance Plan 2022, under which Share Performance Awards were made for the first time in financial year 2023. The bonus policy was also modified This policy applies as of September 1, 2022 to the renewed contract with Dr Cord Dohrmann and to Laetitia Rouxel since her appointment as of April 1, 2023.
4 |
Other ancillary benefit comprise various insurance policies for Executive Board members based in Germany. |
5 |
€ 300,000 sign on bonus for Laetitia Rouxe |
76
Short-term, one-year remuneration (bonus)
The Management Board members receive a short-term, one-year remuneration (bonus) that rewards the operational implementation of the Evotec Group strategy in the financial year as the foundation for the Company’s positive long-term development. The bonus depends on the achievement of specific financial and non-financial targets set for each financial year by the Remuneration and Nomination Committee of the Supervisory Board and then approved by the Supervisory Board. The bonus is paid pro rata temporis if the Management Board member joins in the course of the year.
A target amount is set for each Management Board member, which defines the amount of the bonus payment if the target achievement is 100%. In the remuneration system 2021 that currently still applies to Dr Johnstone and Dr Evers, the target amount for the one-year variable remuneration for the CEO is set at 100% of annual basic salary (2022: 100%) and for all other Management Board members at 70% of the annual basic salary (2022: 70%). When Dr Lanthaler left as CEO in early January 2024 it was agreed that no bonus would be paid for 2023.
By eliminating the Restricted Share Plan 2020 and redistributing part of it to the bonus it was possible to change the target amount in the Remuneration system 2022 without increasing the total target remuneration. The target amount for the bonus that the CEO receives if he achieves exactly 100% of the annual bonus targets corresponds to around 70% of basic salary for the direct payment portion of the bonus and to around 105% for the deferred portion. The corresponding figures for the ordinary members of the Management Board are around 43% of basic salary for the direct payment portion of the bonus and around 65% for the deferred portion, which represents a ratio of 40:60 between the direct payment and the deferred portion of the bonus. The target amount of 107.5% applies to Dr Dohrmann and Laetitia Rouxel as of September 1, 2022. The deferred portion of the bonus is invested in Evotec shares, which the Management Board members buy via a service provider and have to hold for at least three years. Evotec provides the total applicable amount for all Management Board members and sets the timeframe within which the service provider must make the purchases on behalf of the Management Board members. The service provider then makes the purchases and transfers the shares purchased to the securities accounts of the Management Board members at a uniform average price with a corresponding lock-up period.
At the beginning of the following financial year the Supervisory Board measures the achievement of the targets and determines the amount of the annual bonus.
Bonuses are agreed with Management Board members in their individual employment contracts. When the Management Board remuneration system was revised a maximum bonus payment of up to 150% of the target amount was made possible for the bonus plan. This cap has applied to the bonuses of all Management Board members since 2023.
77
For financial year 2022 the Supervisory Board defined the following performance criteria and their weighting for all Management Board members:
2022 targets |
|
Weighting |
|
|
|
|
|
Expand basic business |
|
50.0 |
% |
|
|
|
|
● Total revenue growth >€710 million |
|
20.0 |
% |
|
|
|
|
● Exceed stable Adjusted EBITDA >€110 million |
|
20.0 |
% |
|
|
|
|
● Maintain operating cash flow > €35 million |
|
10.0 |
% |
|
|
|
|
Develop EVORoyalty, EVOEquity and accelerate technology pool for precision medicine |
|
25.0 |
% |
|
|
|
|
● Build new joint alliances using the components of Action Plan 2025 (e.g., iPSC, PanOmics & PanHunter, …) (>€300 million technical value and >€30 million upfronts)) |
|
10.0 |
% |
|
|
|
|
● Accelerate commercial strategy of Just-Evotec Biologics (update MPR, strategy beyond J.POD 2) |
|
10.0 |
% |
|
|
|
|
● Implement a long-term operational venturing strategy / spin-off strategy |
|
5.0 |
% |
|
|
|
|
ESG: Develop people, the Company and Best of Governance Sustainability, Leadership and Entrepreneurship |
|
25.0 |
% |
|
|
|
|
● Achieve the environmental target of 1.5C in line with Science Based Target initiative (“SBTi”) (i.e., prepare to reduce carbon emissions by 20% by 2025). |
|
5.0 |
% |
|
|
|
|
● Investment of >10% of scientific footprint in areas addressed by UN SDG 3. Investments of >€10 million in women’s health, infectious diseases, global health, and AMR. |
|
5.0 |
% |
|
|
|
|
• Build leadership qualities, learning opportunities and succession, while keeping the Company’s fluctuation rate lower than in 2021 |
|
15.0 |
% |
For financial year 2023 the Supervisory Board defined the following performance criteria and their weighting for all Management Board members:
78
2023 targets |
|
Weighting |
|
|
|
|
|
Expand basic business |
|
50.0 |
% |
|
|
|
|
• Total revenue growth >€850 million |
|
20.0 |
% |
|
|
|
|
• Exceed stable Adjusted EBITDA > € 120 million |
|
20.0 |
% |
|
|
|
|
• Maintain operating cash flow > €50 million |
|
10.0 |
% |
|
|
|
|
Develop EVORoyalty, EVOEquity and accelerate technology pool for precision medicine |
|
25.0 |
% |
|
|
|
|
• Build new joint alliances using the components of Action Plan 2025 (e.g., iPSC, PanOmics & PanHunter, …) (>€100 million technical value)) |
|
10.0 |
% |
|
|
|
|
• Just - Evotec Biologics path to profitability relative to AP 2025 (<€ 15 million loss in 2023) |
|
10.0 |
% |
|
|
|
|
• Clarification of the global qualitative leadership position within end-to-end R&D (customer loyalty and sales quality) |
|
5.0 |
% |
|
|
|
|
ESG: Develop people, the Company and Best of Governance Sustainability, Leadership and Entrepreneurship |
|
25.0 |
% |
|
|
|
|
• Implementation of the SBTi initiative at all sites and investment of 1% of turnover to achieve the SBTi targets |
|
5.0 |
% |
|
|
|
|
• Conduct an employee survey by mid-2023. Define and communicate the resulting targets for 2024 and following year |
|
5.0 |
% |
|
|
|
|
• Assignment of sustainability champions at all sites to establish structures that promote sustainability and social goals, as well as sustainable site-specific projects |
|
15.0 |
% |
The Supervisory Board defines a uniform percentage of target achievement for all the individual targets, which can be between 0% and 125%. The target achievement percentage is converted into a payment factor (“bonus payment factor”) of between 0% and 150%. The bonus payment factor is multiplied by the target bonus amount for each individual target in order to determine the amount of the bonus payment for each individual target. Ultimately, the bonus amount can vary between zero and 150% of the target bonus amount (capped at 100% in total for the CFO).
The bonus payment amounts for the individual targets are added to determine the total bonus payment amount.
79
Bonus target achievement for 2022 was as follows:
2022 targets |
|
Result |
|
Weighting |
|
Achievement |
|
|
|
|
|
|
|
|
|
Expand basic business |
|
|
|
50 |
% |
|
|
|
|
|
|
|
|
|
|
● Total revenue growth >€710 million |
|
● €748.3m vs. €710m |
|
20 |
% |
105 |
% |
|
|
|
|
|
|
|
|
● Exceed stable Adjusted EBITDA >€110 million |
|
● €104.1m vs. €110m |
|
20 |
% |
95 |
% |
|
|
|
|
|
|
|
|
● Maintain operating cash flow > €35 million |
|
● €203m vs. €35m |
|
10 |
% |
>125 |
% |
|
|
|
|
|
|
|
|
Develop EVORoyalty, EVOEquity and accelerate technology pool for precision medicine |
|
|
|
25 |
% |
|
|
● Build new joint alliances using the components of Action Plan 2025 (e.g., iPSC, PanOmics & PanHunter, …) (>€300 million technical value and >€30 million upfronts)) |
|
● Above €3bn (Targeted Protein Degradation “TPD” with BMS) vs. €300m |
|
10 |
% |
>125 |
% |
|
|
|
|
|
|
|
|
● Accelerate commercial strategy of Just-Evotec Biologics (update MPR, strategy beyond J.POD 2) |
|
● Commercial strategy and business performance behind initial plan, especially due to delays, also related to COVID; strategy behind J.POD 2 not established yet. |
|
10 |
% |
50 |
% |
|
|
|
|
|
|
|
|
● Implement a long-term operational venturing strategy / spin-off strategy |
|
● Strategy presented and aligned. Implementation due to market and leadership change altered. |
|
5 |
% |
90 |
% |
|
|
|
|
|
|
|
|
ESG: Develop people, the Company and Best of Governance Sustainability, Leadership and Entrepreneurship |
|
|
|
25 |
% |
|
|
|
|
|
|
|
|
|
|
● Achieve the environmental target of 1.5C in line with SBTi (i.e., prepare to reduce carbon emissions by 20% by 2025) |
|
● Approved by the Supervisory Board in December 2022. |
|
5 |
% |
100 |
% |
|
|
|
|
|
|
|
|
● Investment of >10% of scientific footprint in areas addressed by UN SDG 3 |
|
● Achieved on SDG3 and beyond, e.g. in Global Health (“GH”), infectious diseases (>15%). |
|
5 |
% |
100 |
% |
|
|
|
|
|
|
|
|
● Build leadership qualities, learning opportunities and succession, while keeping the Company’s fluctuation rate lower than in 2021 |
|
● 85% vs. 75% EVOlead |
|
15 |
% |
85 |
% |
81
Bonus target achievement for 2023 was as follows:
2023 targets |
|
Result |
|
Weighting |
|
Achievement |
|
|
|
|
|
|
|
|
|
Expand basic business |
|
|
|
50 |
% |
|
|
|
|
|
|
|
|
|
|
● Total revenue growth >€850 million |
|
● €781.4 million |
|
15 |
% |
132 |
% |
|
|
|
|
|
|
|
|
● Exceed stable Adjusted EBITDA >€120 million |
|
● €66.4 million |
|
30 |
% |
50 |
% |
|
|
|
|
|
|
|
|
● Maintain operating cash flow > €50 million |
|
● €36.4 million |
|
5 |
% |
60 |
% |
|
|
|
|
|
|
|
|
Develop EVORoyalty, EVOEquity and accelerate technology pool for precision medicine |
|
|
|
30 |
% |
|
|
● Build new joint alliances using the components of Action Plan 2025 (e.g., iPSC, PanOmics & PanHunter, …) (>€100 million technical value) |
|
● >€100 million upfront from BMS Neuro Partnership and Sandoz plus significant milestones and royalty prospects |
|
10 |
% |
100 |
% |
|
|
|
|
|
|
|
|
● Just - Evotec Biologics path to profitability relative to AP 2025 (<€ 15 million loss in 2023) |
|
● Q4 2023 close to profitability, enables a forecast / budget 2024 that achieve profitability as planned |
|
10 |
% |
100 |
% |
|
|
|
|
|
|
|
|
● Clarification of the global qualitative leadership position within end-to-end R&D (customer loyalty and sales quality) |
|
● 93% customer retention rate |
|
10 |
% |
100 |
% |
|
|
|
|
|
|
|
|
ESG: Develop people, the Company and Best of Governance Sustainability, Leadership and Entrepreneurship |
|
|
|
20 |
% |
|
|
|
|
|
|
|
|
|
|
● Implementation of the SBTi initiative at all sites and investment of 1% of turnover to achieve the SBTi targets |
|
● SBTi implemented at all sites, including investment of 1% of sales to achieve SBTi targets |
|
5 |
% |
100 |
% |
|
|
|
|
|
|
|
|
Conduct an employee survey by mid-2023. Define and communicate the resulting targets for 2024 and following year. |
|
Employee survey conducted and results communicated |
|
10 |
% |
100 |
% |
|
|
|
|
|
|
|
|
Assignment of sustainability champions at all sites to establish structures that promote sustainability and social goals, as well as sustainable site-specific projects |
|
Sustainability champions designated at each site |
|
5 |
% |
100 |
% |
82
Total target achievement for the 2022 bonus is as follows:
|
|
|
|
|
|
Target based on 100% target |
|
Cap based on maximum target |
|
(corresponds to |
|
Bonus payment |
|
||||||
|
|
Floor based on 0% target achievement |
|
achievement |
|
achievement6 |
|
total target achievement) |
|
amount 2022 |
|
||||||||
|
|
|
|
in % of basic |
|
|
|
in % of basic |
|
|
|
in % of basic |
|
|
|
|
|
in % of basic |
|
Executive Board member |
|
in k € |
|
salary |
|
in k € |
|
salary |
|
in k € |
|
salary |
|
in% |
|
in k € |
|
salary |
|
Dr. Werner Lanthaler |
|
— |
|
0.0 |
% |
600 |
|
100.0 |
% |
900 |
|
150.0 |
% |
96.4 |
% |
578 |
|
96.4 |
% |
Dr. Cord Dohrmann |
|
— |
|
0.0 |
% |
348 |
|
83.5 |
% |
429 |
|
102.9 |
% |
96.4 |
% |
335 |
|
80.5 |
% |
Dr. Matthias Evers |
|
— |
|
0.0 |
% |
187 |
|
70.0 |
% |
280 |
|
105.0 |
% |
96.4 |
% |
180 |
|
67.5 |
% |
Dr. Craig Johnstone |
|
— |
|
0.0 |
% |
280 |
|
70.0 |
% |
420 |
|
105.0 |
% |
96.4 |
% |
270 |
|
67.5 |
% |
Enno Spillner |
|
— |
|
0.0 |
% |
224 |
|
70.0 |
% |
224 |
|
70.0 |
% |
96.4 |
% |
216 |
|
67.5 |
% |
Total target achievement for the 2023 bonus is as follows: In view of the particular circumstances in the 2023 financial year, particularly the cyber-attack in April 2023, it was decided to set the total target achievement at just 50% for the whole company and so significantly below the actual target achievement.
|
|
Floor based on 0% target |
|
Target based on 100% target |
|
Cap based on maximum target |
|
|
|
Bonus payment |
|
||||||||
|
|
achievement |
|
achievement |
|
achievement7 |
|
(corresponds to total target |
|
amount 2023 |
|
||||||||
|
|
|
|
in % of basic |
|
|
|
in % of basic |
|
|
|
in % of basic |
|
achievement) |
|
|
|
in % of basic |
|
Executive Board member |
|
in k € |
|
salary |
|
in k € |
|
salary |
|
in k € |
|
salary |
|
in % |
|
in k € |
|
salary |
|
Dr. Werner Lanthaler |
|
— |
|
0.0 |
% |
600 |
|
100.0 |
% |
900 |
|
150.0 |
% |
— |
% |
— |
|
— |
% |
Dr. Cord Dohrmann |
|
— |
|
0.0 |
% |
484 |
|
107.5 |
% |
726 |
|
120.9 |
% |
50 |
% |
242 |
|
53.8 |
% |
Dr. Matthias Evers |
|
— |
|
0.0 |
% |
280 |
|
70.0 |
% |
420 |
|
105.0 |
% |
50 |
% |
140 |
|
35 |
% |
Dr. Craig Johnstone |
|
— |
|
0.0 |
% |
280 |
|
70.0 |
% |
420 |
|
105.0 |
% |
50 |
% |
140 |
|
35 |
% |
Laetitia Rouxel |
|
— |
|
0.0 |
% |
363 |
|
107.5 |
% |
544 |
|
161.3 |
% |
50 |
% |
181 |
|
53.8 |
% |
Enno Spillner |
|
— |
|
0.0 |
% |
56 |
|
17.5 |
% |
56 |
|
70.0 |
% |
50 |
% |
28 |
|
35 |
% |
Since the work for the annual bonus 2023 was completed in full in financial year 2023, it is attributed to the remuneration awarded and owed in 2023 within the meaning of Section 162 (1) sentence 2 no. 1 AktG, and so included in this remuneration report. To ensure the transparent, comprehensible presentation of remuneration awarded to Management Board members in a given financial year, the annual bonus for 2022 is also included in this remuneration report on a voluntary basis.
6 Based on the extension of the CSO’s contract as at September 1, 2022 the annual target bonus was adjusted pro rata from 70% to 107.5% of the annual basic salary and the maximum payout amount was adjusted pro rata from 100% to 150% of the respective target bonus.
7 Based on the remuneration system approved by the 2022 Annual General Meeting, 60% of the bonus paid to Cord Dohrmann will be invested in shares, which must be held for at least three years The Management Board members also receive long-term, multi-year remuneration in the form of their participation in various Company remuneration programs that extend over several years.
83
Long-term, multi-year variable remuneration
There are two different share-based programs, with payments after a waiting period of four years. This incentivizes the individual Management Board members to contribute to the Company’s long-term, sustainable development and aligns their interests with those of shareholders. When the new Remuneration system 2022 took effect, the link to Company performance and sustainable Company growth described above was maintained, but the Restricted Share Plan 2020 is no longer part of the long-term remuneration component.
Share Performance Plan 2022
In addition to their variable one-year remuneration, the Management Board members are entitled to an annual allocation of Share Performance Awards (SPA) in accordance with the Share Performance Plan 2022. The Share Performance Plan is a key step for supporting the interests of the Company shareholders and developing a modern, long-term remuneration model, which complies with the current German Corporate Governance Code at the time of its inception.
The number of SPA to be allocated is determined by dividing a fixed percentage of the Management Board member’s basic remuneration by the relevant market value of an SPA. By eliminating the Restricted Share Plan 2020 and redistributing part of it to the Share Performance Award, the Remuneration system 2022 adopted at the Annual General Meeting made it possible to change the target amount without increasing the total target remuneration. The target amount for the Share Performance Awards is around 225% of basic salary for the CEO and around 163% for the other members of the Management Board. This was only applied to Dr Cord Dohrmann for financial year 2023, however, whereas the following percentages from the remuneration system 2021 applied to the other Management Board members: The percentage for the CEO for financial year 2023 is 200% of basic salary (2022: 200%) and for all other Management Board members (apart from the Chief Scientific Officer) 91.5% of basic salary (2022: 91.5%).
The amount paid out for the Share Performance Awards may not exceed 350% of the target amount when they are exercised (cap).
The following table shows the number of SPA awarded in financial year 2023:
|
|
Target amount for |
|
Market value of one SPA at the |
|
awarded in FY |
||
|
|
performance shares (SPA) |
|
award date |
|
2023 |
||
|
|
|
|
% of basic |
|
|
|
|
Executive Board member |
|
in k € |
|
salary |
|
in € |
|
units |
Dr. Werner Lanthaler |
|
1,200 |
|
200.0 |
% |
15.87 |
|
75,615 |
Dr. Cord Dohrmann |
|
731 |
|
162.5 |
% |
15.87 |
|
46,078 |
Dr. Matthias Evers |
|
600 |
|
150.0 |
% |
15.87 |
|
37,808 |
Dr. Craig Johnstone |
|
600 |
|
150.0 |
% |
15.87 |
|
37,808 |
Laetitia Rouxel |
|
— |
|
150.0 |
% |
15.87 |
|
— |
Enno Spillner |
|
480 |
|
150.0 |
% |
15.87 |
|
30,246 |
The Share Performance Plan 2022 is based on a prospective, multi-year measurement period. For each allocation of SPA there is a period of four consecutive calendar years in which certain performance indicators are measured (performance measurement period). The Annual General Meeting 2022 set two equally weighted key performance indicators (KPI) for long-term value creation: the relative total shareholder returns and revenue growth. This is supplemented by performance against an additional ESG target (modifier).
The performance indicators are measured for each year of the performance measurement period. The performance in a given year is fixed for the remainder of the vesting period.
At the end of the vesting period there is a minimum target for each of the two KPI that has to be achieved before (some of) the Share Performance Awards can be exercised, and a maximum target after which all the Share Performance Awards for that KPI (100%) may be exercised. One Share Performance Award entitles the bearer to subscribe for a maximum of two whole shares in Evotec SE.
84
Relative total shareholder return is an indicator for the return on an investment in Company shares compared with an investment in the TecDAX. Relative total shareholder returns measure the return on an equity investment over time, including dividends and changes in the share price (positive and negative), adjusted for any share issues or splits. 100% of the key performance indicator “Total Shareholder Return” is achieved for a performance measurement period, i.e. four calendar years, when the Total Shareholder Return for the shares of the Company (average share price of the Company at the closing auction of Xetra trading (or a successor system) on the thirty (30) trading days at Frankfurt Stock exchange prior to the relevant date plus dividends, and adjusted for any equity issuance or share-splits, is at least 20 percentage points higher than the average Total Shareholder Return of the companies listed in the German TecDAX index (or a comparable stock index) during the same period. The minimum target for the performance target “Total Shareholder Return” is achieved when the Total Shareholder Return for the shares of the Company matches the average Total Shareholder Return of the companies listed in the TecDAX. The maximum target, at which all the Share Performance Awards for the performance indicator “Total Shareholder Return” can be exercised at a ratio of 1:2, is achieved when the annual average Total Shareholder Return for the shares of the Company is at least 60 percentage points above the average Total Shareholder Return of the companies listed in the TecDAX during the respective performance period.
Relevant values of the Total Shareholder Return of the Company and of the average Total Shareholder Return of the companies listed in the TecDAX will be calculated based on the average TecDAX (Total Return Index) during the thirty (30) trading days at Frankfurt Stock exchange prior to the relevant date.
100% of the key performance indicator “Group Revenue” is achieved (“Target Group Revenue”) when the cumulative growth in Group revenue of Evotec SE in the performance measurement period, i.e. four calendar years, corresponds to the cumulative growth in Group revenue of Evotec SE planned by the Management Board with the approval of the Supervisory Board on the basis of a mid-range plan. The Management Board, with the approval of the Supervisory Board, should generally prepare the mid-range plan for a five-year period every year, on the basis of a sustainable corporate development with demanding, relevant target parameters. The “performance measurement period” is the four-year period starting on January 1 of the year in which the individual tranche of the subscription rights is awarded. “Group Revenue” is the revenue in the consolidated income statement. Cumulative Group revenue, and so revenue growth, is calculated on the basis of the audited and approved consolidated financial statements (IFRS) of Evotec SE for the respective performance measurement period, less revenue from out licensed development programs. The minimum target for the performance indicator “Group Revenue” is achieved when the cumulative growth in Group revenue of Evotec SE in the performance measurement period is equal to or greater than 50% of the target Group revenue growth defined for the respective performance measurement period. The maximum target for the performance indicator “Group Revenue” is achieved when the cumulative growth in Group revenue of Evotec SE in the performance measurement period is equal to or greater than 150% of the target Group revenue growth defined for the respective performance measurement period.
The ESG modifier is a figure for measuring long-term research spending on socially relevant illnesses (e.g., infectious diseases or women’s health). The ESG modifier distinguishes between complete (modifier: 1.0) and incomplete target achievement (modifier: 0.9) and is multiplied by the sum of target achievement in the two performance indicators “Total Shareholder Return” and “Group revenue”. The Supervisory Board is authorized to determine the level of target achievement. The ESG target cannot be achieved by more than 100%.
If the minimum target for any performance indicator is not achieved, the corresponding number of SPA expires. If the target is exactly achieved (100% target achievement) the corresponding number of SPA are converted into the same number of subscription rights to shares in Evotec SE at the end of the performance period. If the maximum target is achieved (200% target achievement) the corresponding number of SPA are converted into twice the number of subscription rights to shares in Evotec SE at the end of the performance period. Between these figures the values are interpolated on a linear basis.
85
The Share Performance Plan 2022 works as follows:
The payment curves for the KPI absolute revenue growth (“Revenue Growth”) and relative total shareholder return (“TSR Outperformance”) are shown below:
The right to exercise the subscription rights resulting from converting the Share Performance Awards only vests at the end of the performance period. At the end of the four-year performance period for the Share Performance Awards the target achievement is measured for the two performance indicators, the corresponding number of subscription rights is calculated and fixed.
86
Share Performance Plan 2017
The Share Performance Plan 2017 is based on a prospective, multi-year measurement period. For each allocation of SPA there is a period of four consecutive calendar years in which certain performance indicators are measured (performance measurement period). The Annual General Meeting 2017 set two equally weighted key performance indicators (KPI) for long-term value creation: the share price and the relative total shareholder return. Relative total shareholder return is an indicator for the return on an investment in Company shares compared with an investment in the TecDAX. Relative total shareholder returns measure the return on an equity investment over time, including dividends and changes in the share price (positive and negative), adjusted for any share issues or splits. The performance indicators are measured for each year of the performance measurement period. The performance in a given year is fixed for the remainder of the vesting period.
At the end of the vesting period there is a minimum target for each of the two KPI that has to be achieved before (some of) the Share Performance Awards can be exercised, and a maximum target after which all the Share Performance Awards for that KPI (100%) may be exercised. One Share Performance Award entitles the bearer to subscribe for a maximum of two whole shares in Evotec SE.
The target for the share price increase in a calendar year is achieved exactly (100%) if the average price of the Evotec share in the closing auction of XETRA trading (or a successor system) on the last 30 trading days at the Frankfurt Stock Exchange in the relevant performance period, i.e. the calendar year (“closing price”) is more than 8% higher than the average price of the Evotec share in the closing auction of XETRA trading (or a successor system) on the last 30 trading days before the start of the relevant performance period (“opening price”). The minimum target is achieved if the closing price is the same as the opening price (0% target achievement). The maximum target is achieved in a calendar year if the closing price is 16% or more above the opening price (200% target achievement).
The KPI relative total shareholder return measures the return on a share investment over a period of time, including dividends as well as share price performance (positive and negative) and adjusted for any equity issues or share-splits. The target for total shareholder return is achieved exactly in a calendar year (100%) if the return on the Evotec share matches the average return on the shares of the companies listed in the TecDAX over the same period. The return on the Evotec share is determined on the basis of the closing price and the dividend per share paid in that year (adjusted for any equity issues and share-splits) in relation to the opening price:
The relevant values of the average relative total shareholder return of the companies listed in the TecDAX will be calculated and based on the average TecDAX -(Total Return Index) during the thirty (30) trading days at Frankfurt Stock Exchange prior to the relevant date. The return is therefore based on the relation between the average TecDAX value in the closing auction of XETRA trading (or a successor system) in the last 30 trading days of the relevant performance period, i.e. the calendar year (“final value”) and the average TecDAX value in the closing auction of XETRA trading (or a successor system) on the last 30 trading days before the start of the relevant performance period (“starting value”).
The minimum target is achieved (0% target achievement) if the return on the Evotec share is less than 10% below the average total shareholder return for the companies in the TecDAX in the relevant performance period (i.e. in each calendar year). The maximum target is achieved (200% target achievement) if the return on the Evotec share is at least 10% higher than the average total shareholder returns for the companies in the TecDAX in the relevant performance period.
If the minimum target for one performance indicator is not achieved in a calendar year, the corresponding number of SPA (12.5% of the SPA granted at the start of the performance period) are forfeit. If the target is exactly achieved (100% target achievement) the corresponding number of SPA are converted into the same number of subscription rights to shares in Evotec SE at the end of the performance period. If the maximum target is achieved (200% target achievement) the corresponding number of SPA are converted into twice the number of subscription rights to shares in Evotec SE at the end of the performance period. Between these figures the values are interpolated on a linear basis.
87
The Share Performance Plan 2017 works as follows:
The payment curves for the KPI absolute share price performance and relative total shareholder return are shown below:
88
The right to exercise the subscription rights resulting from converting the Share Performance Awards only vests at the end of the performance period. At the end of each of the four performance periods (i.e. each calendar year) for the Share Performance Awards the target achievement is measured for the two performance indicators in the relevant calendar year, the corresponding number of subscription rights are calculated and provisionally fixed. At the end of all four performance periods, i.e. the four calendar years of an award, the subscription rights calculated for each year are added to obtain the total number of subscription rights.
SPAs from the 2019 grant became exercisable in 2023. The following table shows the target achievement for the individual performance criteria per year and in aggregate:
|
|
Target achievement 2019 |
|
Target achievement 2020 |
|
Target achievement 2021 |
|
Target achievement 2022 |
|
Total target achievement |
|
|
|
(in %) |
|
(in %) |
|
(in %) |
|
(in %) |
|
(in %) |
|
Relative share price performance |
|
124 |
% |
200 |
% |
200 |
% |
— |
% |
131 |
% |
Relative TSR |
|
— |
% |
200 |
% |
200 |
% |
— |
% |
100 |
% |
The target achievement for 2023 was 200% for each of the performance indicators.
The final number of exercisable SPA from the 2019 grant is shown in the following table for each Executive Board member:
|
|
|
|
|
|
Target achievement rel. |
|
|
|
Number of SPA in 2019 |
|
Number of SPA from 2019 |
|
|
|
|
Number of SPA awarded |
|
share |
|
Target achievement |
|
tranche based on target |
|
tranche actually exercised |
Executive Board member |
|
Function |
|
from 2019 tranche |
|
price performance (in %) |
|
Relative TSR (in %) |
|
achievement |
|
(subject to remuneration cap)8 |
Dr. Werner Lanthaler |
|
CEO |
|
45,161 |
|
131 |
% |
100 |
% |
52,161 |
|
52,161 |
Dr. Cord Dohrmann |
|
CSO |
|
13,318 |
|
131 |
% |
100 |
% |
15,383 |
|
15,383 |
Dr. Craig Johnstone |
|
COO |
|
16,733 |
|
131 |
% |
100 |
% |
19,327 |
|
19,327 |
Enno Spillner |
|
CFO |
|
11,071 |
|
131 |
% |
100 |
% |
12,788 |
|
12,788 |
One SPA corresponds to one Evotec share and the share price at the exercise date in 2023 was around €18.
Restricted Share Plan 2020
In the event of unusual circumstances, relating above all to competition, the Supervisory Board could at its professional discretion and having determined that it is appropriate, grant additional Restricted Share Awards if this was expected to have a positive influence on the long-term performance of the Evotec Group. The Supervisory Board determines the target amount of Restricted Share Awards in the individual case. The amount of the Restricted Share Awards may not exceed 400% of the target amount (cap).
Active discussions with shareholders gave the Supervisory Board to understand that the Restricted Share Plan 2020 and the Supervisory Board discretion that this implies are viewed critically. It therefore decided no longer to issue this remuneration component when the new remuneration system takes effect after the Annual General Meeting 2022. No Restricted Share Awards were made as a result in 2023.
The Restricted Share Plan defines for each award a performance period of four consecutive calendar years in which the performance is measured. The Annual General Meeting 2020 defined Adjusted EBITDA as the performance indicator. The performance indicator is measured for each year in the performance period. The performance in a given year is fixed for the remainder of the lock-up period.
8 Dr. Craig Johnstone was appointed to the Executive Board in January 2019; he was therefore not granted any SPA from the 2018 tranche for his Executive Board work.
89
To measure performance, Adjusted EBITDA is calculated for each year of the performance period and compared with the Adjusted EBITDA forecast for the financial year in the first quarter of that year. The forecast and the actual financial ratio for the previous year are published in the annual report.
The key performance indicator for the respective year is achieved when Adjusted EBITDA corresponds to or exceeds forecast Adjusted EBITDA. The minimum target is achieved when Adjusted EBITDA corresponds to or exceeds 75% of forecast Adjusted EBITDA.
If the minimum target is not achieved in a financial year, 25% of the Restricted Share Awards are forfeit. If the target is achieved in a financial year, 25% of the Restricted Share Awards are converted into subscription rights, each for one share in Evotec SE. If the minimum target is achieved exactly in a financial year, 12.5% of the Restricted Share Awards are converted into subscription rights, each for one share in Evotec SE. If the minimum target is achieved in a financial year, but not the target, between 12.5% and 25% of the Restricted Share Awards, depending on the actual target achievement, are converted into subscription rights, each for one share in Evotec SE.
For the Management Board members who were granted Restricted Share Awards for the last time in 2022 the Supervisory Board defined other performance criteria, covering revenue growth by the Evotec Group, the number of partnered projects, the implementation of an ESG strategy and long-term organizational development. For competition reasons these are only published retrospectively after the performance period has come to an end.
The Restricted Share Plan 2020 works as follows:
90
The payment curve for the KPI adjusted EBITDA is as follows:
No Restricted Share Awards were granted to Management Board members in 2023 and none became exercisable.
Outlook for variable remuneration
Transparent and quantifiable ESG criteria were included in the variable remuneration components in the Remuneration system 2022. A substantial part of the short-term annual remuneration will have to be invested in Company shares and held for three years in future, in order to better align the interests of Management Board members with those of shareholders. The performance period for the Share Performance Plan 2022 adopted by the Annual General Meeting on June 22, 2022 was increased to four years and the pay-for-performance approach was strengthened. In addition, the Restricted Share Plan 2020 no longer forms part of the new remuneration system and is no longer issued to members of the Management Board now that the new system is in effect.
Other remuneration rules
Benefits promised or granted by third parties
No benefits were promised or granted to a Management Board member by any third party concerning their work as a Management Board member.
91
Penalty and claw back rules
If necessary, the Supervisory Board may withhold (penalty clause) or retract (claw back) variable remuneration components if a Management Board member is in serious breach of their obligations, particularly their compliance obligations. The current employment contracts of all Management Board members include such claw back provisions.
The Company did not make use of its right to withhold or retract variable remuneration in financial year 2023. When Dr Lanthaler left as CEO in early January 2024, however, it was agreed that he would not be paid a bonus for 2023.
Severance payments
Payments to a Management Board member if the service contract is terminated prematurely, without there being an important reason for the termination, are limited to two annual salaries and may not exceed the annual remuneration for the remainder of the service contract (cap on severance pay). No payments are made to the Management Board member if the employment contract is terminated for an important reason for which the Management Board member is responsible. The annual remuneration used to calculate the severance payment is the basic salary plus target bonus.
Change of control
To the extent that their tasks and responsibilities change as a result of the change of control, Management Board members have the exceptional right to terminate their employment contract if a shareholder or third party acquires at least 30% of the shares in Evotec SE. The termination right may be exercised, giving three months’ notice, at any time within twelve months of the change of control. At the end of the notice period the Company is no longer obliged to pay any remuneration benefits, with the exception of a one-off severance payment of 18 months’ salary for the Management Board member concerned, made up of basic pay and the monetary value of any ancillary benefits.
If a change of control takes place during the vesting period for the Share Performance Awards, the allocations to all participants made as part of the Share Performance Plan 2017 are irrevocably transferred and fully settled in cash up to certain limits. In the Share Performance Plan 2022 the threshold for a change of control that triggers the irrevocable transfer and payment of the Share Performance Awards was raised from 30% to >50%. It was also determined that this irrevocable transfer and settlement only takes place if the Management Board member concerned exercises their exceptional right to terminate their contract because their tasks and responsibilities have been significantly altered as a result of the change of control.
If a change of control takes place during the vesting period for the RSA, the allocations made as part of the Restricted Share Plan 2020 are settled immediately in cash when they fall due, subject to certain restrictions. The settlement amount is to be calculated based on the notional number of exercisable subscription rights and subject to the applicable cap. It should assume that the targets for the respective KPI have been achieved for those years for which no definitive assessment has been made at this time.
Non-competition clause
Non-competition clauses have been agreed with the Management Board members for the time after their departure. Evotec SE pays compensation for twelve months after the employment contract comes to an end. The compensation payments comprise 50% of direct remuneration paid (basic salary and variable remuneration) in the year before the employment contract ended and are paid in equal monthly installments.
92
Maximum remuneration
The maximum remuneration defined in the Remuneration system 2021 applies to all the members of the Management Board whose contract was signed or renewed before the Remuneration system 2022 came into effect at the AGM 2022 (Dr. Werner Lanthaler, Dr, Craig Johnstone, Dr. Matthias Evers). For the maximum remuneration defined in the Remuneration system 2021 the Supervisory Board worked from the current annual target remuneration of the Management Board members. Allowing for a possible (moderate) increase in the fixed salary and one grant of RSAo each Management Board member during the forecast four-year duration of the remuneration system gives the maximum annual remuneration as defined in Section 87a para. 1 sentence 2 no. 1 AktG:
|
|
Maximum remuneration for years in which no |
|
Maximum remuneration for years in which no |
Function |
|
RSA’s are granted (in € k) |
|
RSA’s are granted (in € k) |
CEO |
|
6,000 |
|
15,600 |
Member of the Executive Board |
|
3,500 |
|
7,100 |
The maximum remuneration defined in the Remuneration system 2022 applies to all the members of the Management Board whose contract was signed or renewed after the Remuneration system 2022 came into effect at the AGM 2022 (Dr. Cord Dohrmann and Laetitia Rouxel). The annual maximum remuneration within the meaning of Section 87a para. 1 sentence 2 no 1 AktG for contracts signed after the effective date of the Remuneration system 2022 is:
|
|
Maximum remuneration +for years in which no |
Function |
|
RSA’s are granted (in € k) |
CEO |
|
7,050 |
Member of the Executive Board |
|
3,400 |
The relevant cap was not exceeded in the reporting year.
Share Ownership Guideline
The remuneration system 2022 obliges the Management Board members to hold shares in Evotec SE for the duration of their appointment to the Management Board, whereby this obligation must first be met no later than five years after they were first appointed to the Management Board (“build-up phase”). The share ownership program is intended to incentivise Management Board members to increase enterprise value in the interests of shareholders. The amount to be invested depends on the gross basic salary of the respective Management Board member. The CEO undertakes to invest 300% of their gross basic salary in Evotec shares and the other ordinary Management Board members invest 100% of their respective gross basic salary.
The Management Board members reported the following shareholdings as of December 31, 2023.
|
|
|
|
Outstanding Shares |
|
Granted unvested |
|
Outstanding Sahres |
|
Granted unvested |
|
Restricted Shares |
|
|
Shares |
|
from vested SPA’s |
|
SPA’s total |
|
from vested RSA’s |
|
RSA’s (total) |
|
from STI payout |
Management Board |
|
|
|
|
|
|
|
|
|
|
|
|
Dr. Werner Lanthaler |
|
1,550,000 |
|
— |
|
170,812 |
|
— |
|
71,642 |
|
— |
Enno Spillner |
|
58,049 |
|
— |
|
61,663 |
|
— |
|
— |
|
— |
Dr. Cord Dohrmann |
|
195,079 |
|
— |
|
85,350 |
|
— |
|
29,851 |
|
2,951 |
Dr. Craig Johnstone |
|
20,161 |
|
— |
|
73,217 |
|
— |
|
34,980 |
|
— |
Dr. Matthias Evers |
|
— |
|
— |
|
37,808 |
|
— |
|
39,353 |
|
— |
Laetitita Rouxel |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
93
Target remuneration of current Management Board members for financial year 2023
The following table shows the target remuneration of Management Board members for financial year 2023, and on a voluntary basis for financial year 2023. This comprises the agreed target remuneration for the respective financial year, of which 100% is paid if the targets are achieved.
|
|
|
|
|
|
Dr. Werner Lanthaler |
|
Laetitia Rouxel |
|
||||||||||||
|
|
|
|
|
|
CEO |
|
CFO |
|
||||||||||||
|
|
|
|
|
|
2023 |
|
2022 |
|
2023 |
|
2022 |
|
||||||||
|
|
|
|
|
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
|
|
|
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
Non-performance-related remuneration |
|
|
|
Basic salary |
|
600 |
|
23.6 |
% |
600 |
|
23.6 |
% |
338 |
|
33.3 |
% |
— |
|
0.0 |
% |
|
|
+ |
|
Ancillary benefits |
|
141 |
|
5.5 |
% |
141 |
|
5.6 |
% |
371 |
|
36.7 |
% |
— |
|
0.0 |
% |
|
|
= |
|
Total |
|
741 |
|
29.2 |
% |
741 |
|
29.2 |
% |
709 |
|
70.0 |
% |
— |
|
0.0 |
% |
|
|
|
|
Short-term, one-year |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Performance-related |
|
+ |
|
remuneration (STI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Remuneration |
|
|
|
Bonus |
|
600 |
|
23.6 |
% |
600 |
|
23.6 |
% |
484 |
|
47.8 |
% |
— |
|
0.0 |
% |
|
|
|
|
Long-term, multi-year |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
+ |
|
remuneration (LTI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Share Plan 2020 |
|
— |
|
0.0 |
% |
— |
|
0.0 |
% |
— |
|
0.0 |
% |
— |
|
0.0 |
% |
|
|
|
|
Share Performance Plan 2017 |
|
1,200 |
|
47.2 |
% |
1,200 |
|
47.2 |
% |
— |
|
0.0 |
% |
— |
|
0.0 |
% |
|
|
= |
|
Total target remuneration |
|
2,541 |
|
100.0 |
% |
2,541 |
|
100.0 |
% |
1,193 |
|
117.8 |
% |
— |
|
0.0 |
% |
|
|
|
|
|
|
Dr. Cord Dohrmann |
|
Dr. Matthias Evers |
|
||||||||||||
|
|
|
|
|
|
CSO |
|
CBO |
|
||||||||||||
|
|
|
|
|
|
2023 |
|
2022 |
|
2023 |
|
2022 |
|
||||||||
|
|
|
|
|
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
|
|
|
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
Non-performance-related remuneration |
|
|
|
Basic salary |
|
450 |
|
26.1 |
% |
417 |
|
29.4 |
% |
400 |
|
30.0 |
% |
267 |
|
19.2 |
% |
|
|
+ |
|
Ancillary benefits |
|
56 |
|
3.3 |
% |
52 |
|
3.7 |
% |
54 |
|
4.0 |
% |
37 |
|
2.7 |
% |
|
|
= |
|
Total |
|
506 |
|
29.4 |
% |
469 |
|
33.1 |
% |
454 |
|
34.0 |
% |
304 |
|
21.9 |
% |
Performance-related Remuneration |
|
+ |
|
Short-term, one-year remuneration (STI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bonus |
|
484 |
|
28.1 |
% |
348 |
|
24.6 |
% |
280 |
|
21.0 |
% |
187 |
|
13.4 |
% |
|
|
+ |
|
Long-term, multi-year remuneration (LTI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Share Plan 2020 |
|
— |
|
0.0 |
% |
— |
|
0.0 |
% |
— |
|
0.0 |
% |
900 |
|
64.7 |
% |
|
|
|
|
Share Performance Plan 2017 |
|
731 |
|
42.5 |
% |
600 |
|
42.3 |
% |
600 |
|
45.0 |
% |
— |
|
0.0 |
% |
|
|
= |
|
Total target remuneration |
|
1,721 |
|
100.0 |
% |
1,417 |
|
100.0 |
% |
1,334 |
|
100.0 |
% |
1,391 |
|
100.0 |
% |
|
|
|
|
|
|
Dr. Craig Johnstone |
|
Enno Spillner |
|
||||||||||||
|
|
|
|
|
|
COO |
|
CFO |
|
||||||||||||
|
|
|
|
|
|
2023 |
|
2022 |
|
2023 |
|
2022 |
|
||||||||
|
|
|
|
|
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
|
|
|
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
Non-performance-related remuneration |
|
|
|
Basic salary |
|
400 |
|
30.3 |
% |
400 |
|
18.9 |
% |
80 |
|
7.9 |
% |
320 |
|
29.3 |
% |
|
|
+ |
|
Ancillary benefits |
|
42 |
|
3.2 |
% |
42 |
|
2.0 |
% |
22 |
|
2.2 |
% |
67 |
|
6.2 |
% |
|
|
= |
|
Total |
|
442 |
|
33.4 |
% |
442 |
|
20.8 |
% |
102 |
|
10.1 |
% |
387 |
|
35.5 |
% |
Performance-related Remuneration |
|
+ |
|
Short-term, one-year remuneration (STI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bonus |
|
280 |
|
21.2 |
% |
280 |
|
13.2 |
% |
430 |
|
42.5 |
% |
224 |
|
20.5 |
% |
|
|
+ |
|
Long-term, multi-year remuneration (LTI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Share Plan 2020 |
|
— |
|
0.0 |
% |
800 |
|
37.7 |
% |
— |
|
0.0 |
% |
— |
|
0.0 |
% |
|
|
|
|
Share Performance Plan 2017 |
|
600 |
|
45.4 |
% |
600 |
|
28.3 |
% |
480 |
|
47.4 |
% |
480 |
|
44.0 |
% |
|
|
= |
|
Total target remuneration |
|
1,322 |
|
100.0 |
% |
2,112 |
|
100.0 |
% |
1,012 |
|
100.0 |
% |
1,091 |
|
100.0 |
% |
94
Remuneration awarded and owed to current Management Board members in the financial year pursuant to Section 162 AktG
The following tables show the fixed and variable remuneration components awarded and owed to the Management Board members in 2022 and 2023 in accordance with Section 162 (1) sentence 2 no. 1 AktG. Since the work for the annual bonus 2023 was completed in full in financial year 2023, it is attributed to the remuneration awarded and owed in 2023 and so included in this remuneration report.
In addition to the amount of remuneration, the individual fixed and variable remuneration components are shown as a proportion of total remuneration in accordance with Section 162 (1) sentence 2 no. 1 AktG. The proportions are based on the remuneration components awarded and owed in the respective financial year, in accordance with Section 162 (1) sentence 1 AktG.
|
|
|
|
|
|
Dr. Werner Lanthaler |
|
Laetitia Rouxel |
|
||||||||||||
|
|
|
|
|
|
CEO |
|
CFO |
|
||||||||||||
|
|
|
|
|
|
2023 |
|
2022 |
|
2023 |
|
2022 |
|
||||||||
|
|
|
|
|
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
|
|
|
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
Non-performance-related remuneration |
|
|
|
Basic remuneration for the FY |
|
600 |
|
30.9 |
% |
600 |
|
23.8 |
% |
338 |
|
28.3 |
% |
— |
|
0.0 |
% |
|
|
+ |
|
Ancillary benefits for the FY |
|
141 |
|
7.3 |
% |
141 |
|
5.6 |
% |
371 |
|
31.1 |
% |
— |
|
0.0 |
% |
|
|
= |
|
Total |
|
741 |
|
38.2 |
% |
741 |
|
29.4 |
% |
709 |
|
59.3 |
% |
— |
|
0.0 |
% |
Performance-related remuneration |
|
+ |
|
Short-term, one-year remuneration (STI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bonus for the FY2 |
|
— |
|
0.0 |
% |
578 |
|
23.0 |
% |
181 |
|
15.2 |
% |
— |
|
0.0 |
% |
|
|
+ |
|
Long-term, multi-year remuneration (LTI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Share Plan 2020 |
|
— |
|
0.0 |
% |
— |
|
0.0 |
% |
— |
|
0.0 |
% |
— |
|
0.0 |
% |
|
|
|
|
Share Performance Plan 2017 |
|
1,200 |
|
61.8 |
% |
1,200 |
|
47.6 |
% |
— |
|
0.0 |
% |
— |
|
0.0 |
% |
|
|
= |
|
Total remuneration as defined in Sec. 162 AktG |
|
1,941 |
|
100.0 |
% |
2,519 |
|
100.0 |
% |
890 |
|
74.5 |
% |
— |
|
0.0 |
% |
|
|
|
|
|
|
Dr. Cord Dohrmann |
|
Dr. Matthias Evers |
|
||||||||||||
|
|
|
|
|
|
CSO |
|
CBO |
|
||||||||||||
|
|
|
|
|
|
2023 |
|
2022 |
|
2023 |
|
2022 |
|
||||||||
|
|
|
|
|
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
|
|
|
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
Non-performance-related remuneration |
|
|
|
Basic remuneration for the FY1 |
|
450 |
|
30.4 |
% |
417 |
|
29.7 |
% |
400 |
|
33.5 |
% |
267 |
|
19.3 |
% |
|
|
+ |
|
Ancillary benefits for the FY |
|
56 |
|
3.8 |
% |
52 |
|
3.7 |
% |
54 |
|
4.5 |
% |
37 |
|
2.7 |
% |
|
|
= |
|
Total |
|
506 |
|
34.2 |
% |
469 |
|
33.4 |
% |
454 |
|
38.0 |
% |
304 |
|
22.0 |
% |
Performance-related remuneration |
|
+ |
|
Short-term, one-year remuneration (STI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bonus for the FY2 |
|
242 |
|
16.4 |
% |
335 |
|
23.9 |
% |
140 |
|
11.7 |
% |
180 |
|
13.0 |
% |
|
|
+ |
|
Long-term, multi-year remuneration (LTI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Share Plan 2020 |
|
— |
|
0.0 |
% |
— |
|
0.0 |
% |
— |
|
0.0 |
% |
900 |
|
65.0 |
% |
|
|
|
|
Share Performance Plan 2017 |
|
731 |
|
49.4 |
% |
600 |
|
42.7 |
% |
600 |
|
50.3 |
% |
— |
|
0.0 |
% |
|
|
= |
|
Total remuneration as defined in Sec. 162 AktG |
|
1,479 |
|
100.0 |
% |
1,404 |
|
100.0 |
% |
1,194 |
|
100.0 |
% |
1,384 |
|
100.0 |
% |
|
|
|
|
|
|
Dr. Craig Johnstone |
|
Enno Spillner |
|
||||||||||||
|
|
|
|
|
|
COO |
|
CFO |
|
||||||||||||
|
|
|
|
|
|
2023 |
|
2022 |
|
2023 |
|
2022 |
|
||||||||
|
|
|
|
|
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
in % |
|
|
|
|
|
|
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
in k € |
|
Total |
|
Non-performance-related remuneration |
|
|
|
Basic remuneration for the FY |
|
400 |
|
33.8 |
% |
400 |
|
18.9 |
% |
80 |
|
13.1 |
% |
320 |
|
29.5 |
% |
|
|
+ |
|
Ancillary benefits for the FY |
|
42 |
|
3.6 |
% |
42 |
|
2.0 |
% |
22 |
|
3.6 |
% |
67 |
|
6.2 |
% |
|
|
= |
|
Total |
|
442 |
|
37.4 |
% |
442 |
|
20.9 |
% |
102 |
|
16.7 |
% |
387 |
|
35.7 |
% |
Performance-related remuneration |
|
+ |
|
Short-term, one-year remuneration (STI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bonus for the FY |
|
140 |
|
11.8 |
% |
270 |
|
12.8 |
% |
28 |
|
4.6 |
% |
216 |
|
19.9 |
% |
|
|
+ |
|
Long-term, multi-year remuneration (LTI) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Share Plan 2020 |
|
— |
|
0.0 |
% |
800 |
|
37.9 |
% |
— |
|
0.0 |
% |
— |
|
0.0 |
% |
|
|
|
|
Share Performance Plan 2017 |
|
600 |
|
50.8 |
% |
600 |
|
28.4 |
% |
480 |
|
78.7 |
% |
480 |
|
44.3 |
% |
|
|
= |
|
Total remuneration as defined in Sec. 162 AktG |
|
1,182 |
|
100.0 |
% |
2,112 |
|
100.0 |
% |
610 |
|
100.0 |
% |
1,083 |
|
100.0 |
% |
1 The basic annual salary for Dr. Cord Dohrmann was increased from € 400,000 to € 450,000 with effect from September 1, 2022. This means his fixed basic salary for financial year 2022 was € 417,000.
As in the past, Dr Craig Johnstone’s remuneration was paid by Evotec (France) SAS and covers his work on the Management Board of Evotec SE and his work as Site Head in Toulouse. As a rule, the cost of the Management Board members’ work is allocated appropriately to the Group companies.
No severance payments were made to departing Management Board members in 2023. Ms Laetitia Rouxel received a signing-on bonus of €300,000 that was paid in April 2023. Another tranche of the same amount is due in April 2024.
95
Remuneration awarded and owed to former Management Board members in the 2023 financial year pursuant to Section 162 AktG
Enno Spillner (CFO) left the Management Board in 2023. Benefits and benefit commitments for Enno Spillner are reported under items D and E.
Remuneration awarded and owed to current Supervisory Board members in the 2023 financial year pursuant to Section 162 AktG
The members of the Evotec Supervisory Board are entitled to a fixed salary and the reimbursement of out-of-pocket expenses in accordance with Article 13 para 1 of Evotec SE’s Articles of Association. In accordance with the recommendations of the GCGC, the positions of Chair and Vice-Chair of the Supervisory Board and the positions of Chair or member of a committee are taken into account when setting the remuneration of the individual members. Each Supervisory Board member receives a fixed salary of €50,000 as approved by the AGM 2019. The Chair receives €125,000 and the Vice-Chair €60,000. Members of Supervisory Board committees receive €10,000 per committee, and the committee Chair receives €25,000.
|
|
|
|
Basic salary |
|
Committee salary |
|
Total remuneration |
||||
|
|
|
|
|
|
in % |
|
|
|
in % |
|
|
|
|
|
|
in € |
|
Total |
|
in € |
|
Total |
|
in € |
Prof. Dr. Iris Löw-Friedrich |
|
2023 |
|
125,000 |
|
83.3 |
% |
25,000 |
|
16.7 |
% |
150,000 |
(since 06/2014) |
|
2022 |
|
125,000 |
|
83.3 |
% |
25,000 |
|
16.7 |
% |
150,000 |
Roland Sackers |
|
2023 |
|
60,000 |
|
63.2 |
% |
35,000 |
|
36.8 |
% |
95,000 |
(since 06/2019) |
|
2022 |
|
60,000 |
|
63.2 |
% |
35,000 |
|
36.8 |
% |
95,000 |
Dr. Mario Polywka |
|
2023 |
|
50,000 |
|
83.3 |
% |
10,000 |
|
16.7 |
% |
60,000 |
(since 06/2019) |
|
2022 |
|
50,000 |
|
83.3 |
% |
10,000 |
|
16.7 |
% |
60,000 |
Dr. Elaine Sullivan |
|
2023 |
|
50,000 |
|
71.4 |
% |
20,000 |
|
28.6 |
% |
70,000 |
(since 06/2015) |
|
2022 |
|
50,000 |
|
76.6 |
% |
15,275 |
|
23.4 |
% |
65,275 |
Kasim Kutay |
|
2023 |
|
— |
|
0.0 |
% |
— |
|
0.0 |
% |
— |
(until 06/2022) |
|
2022 |
|
23,626 |
|
100.0 |
% |
4,725 |
|
16.7 |
% |
28,351 |
Dr. Constanze Ulmer-Eilfort |
|
2023 |
|
50,000 |
|
58.8 |
% |
35,000 |
|
41.2 |
% |
85,000 |
(since 06/2021) |
|
2022 |
|
50,000 |
|
68.3 |
% |
23,187 |
|
31.7 |
% |
73,187 |
Camilla Macapili Languille |
|
2023 |
|
50,000 |
|
83.3 |
% |
10,000 |
|
16.7 |
% |
60,000 |
(since 06/2022) |
|
2022 |
|
26,374 |
|
83.3 |
|
5,275 |
|
16.7 |
|
31,649 |
Comparison of changes in remuneration and profitability
In accordance with Section 162 (1) sentence 2 no. 2 AktG the following table shows the relative change in the remuneration awarded and owed to members of the Management Board and Supervisory Board in the financial year, compared with the average remuneration of employees on a full-time equivalent basis, as well as selected earnings indicators for the Evotec Group.
To show the profitability of the Group the comparison includes the net income recognised in the Company’s separate financial statements, Adjusted EBITDA, and revenue of the Evotec Group, as well as the share price performance and the relative total shareholder return (TSR) for Evotec SE.
96
To show the average remuneration of employees the target remuneration for all employees is used (not including apprentices, students, and interns) on a full-time equivalent basis. This relates to the workforce of Evotec SE in Germany.
Financial year |
|
2023 |
|
Change in % |
|
2022 |
|
Change in % |
|
2021 |
|
Change in % |
|
2020 |
|
Change in % |
|
2019 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings performance |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income for Evotec SE (HGB) in €m |
|
(97.9) |
|
(475.9) |
% |
(17.0) |
* |
38.8 |
% |
(27.8) |
|
(14.9) |
% |
(24.2) |
|
(187.7) |
% |
27.6 |
Adjusted EBITDA Evotec Group in €m |
|
66.4 |
|
(34.7) |
% |
101.7 |
|
(5.2) |
% |
107.3 |
|
0.6 |
% |
106.7 |
|
(13.5) |
% |
123.3 |
Revenue Evotec Group in €m |
|
781.4 |
|
4.0 |
% |
751.4 |
|
21.6 |
% |
618.0 |
|
23.4 |
% |
500.9 |
|
12.2 |
% |
446.4 |
Share price Evotec SE in € |
|
19.4 |
|
20.2 |
% |
16.1 |
|
(61.2) |
% |
41.6 |
|
55.6 |
% |
26.7 |
|
29.7 |
% |
20.6 |
Relative TSR of Evotec SE vs. TecDAX in % points |
|
13.4 |
|
— |
|
(39.7) |
|
— |
|
31.8 |
|
— |
|
27.1 |
|
— |
|
(10.1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Average employee remuneration (in € k) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Average remuneration |
|
77.7 |
|
(0.6) |
% |
78.2 |
|
5.0 |
% |
74.5 |
|
5.2 |
% |
70.8 |
|
4.9 |
% |
67.5 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Management Board remuneration (in € k) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dr. Werner Lanthaler |
|
1,941 |
|
— |
% |
2,519 |
|
46.0 |
% |
4,661 |
|
130.6 |
% |
2,021 |
|
10.0 |
% |
1,837 |
Dr. Cord Dohrmann |
|
1,479 |
|
— |
% |
1,404 |
|
(32.9) |
% |
2,092 |
|
80.6 |
% |
1,158 |
|
34.4 |
% |
862 |
Dr. Matthias Evers |
|
1,194 |
|
— |
|
1,384 |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Dr. Craig Johnstone |
|
1,182 |
|
— |
|
2,112 |
|
127.9 |
% |
927 |
|
(0.2) |
% |
929 |
|
21.1 |
|
767 |
Laetitia Rouxel (since April 2023) |
|
890 |
|
— |
% |
— |
|
— |
% |
— |
|
— |
% |
— |
|
— |
% |
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Former Management Board remuneration (in € k) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Enno Spillner (until March 2023) |
|
610 |
|
— |
|
1,083 |
|
20.8 |
% |
897 |
|
(0.5) |
|
901 |
|
20.8 |
% |
746 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supervisory Board remuneration (in € k) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Prof. Dr. Iris Löw-Friedrich (since 06/2014) |
|
150 |
|
0.0 |
% |
150 |
|
31.6 |
% |
114 |
|
62.9 |
% |
70 |
|
7.7 |
% |
65 |
Roland Sackers (since 06/2019) |
|
95 |
|
(1.0) |
% |
96 |
|
6.7 |
% |
90 |
|
5.9 |
% |
85 |
|
84.8 |
% |
46 |
Dr. Mario Polywka (since 06/2019) |
|
60 |
|
0.0 |
% |
60 |
|
9.1 |
% |
55 |
|
10.0 |
% |
50 |
|
85.2 |
% |
27 |
Dr. Elaine Sullivan (since 06/2015) |
|
70 |
|
7.7 |
% |
65 |
|
8.3 |
% |
60 |
|
0.0 |
% |
60 |
|
0.0 |
% |
60 |
Dr. Constanze Ulmer-Eilfort (since 06/2021) |
|
85 |
|
16.4 |
% |
73 |
|
121.2 |
% |
33 |
|
— |
|
— |
|
— |
|
— |
Camilla Macapili Languille (since 06/2022) |
|
60 |
|
87.5 |
|
32 |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Former Supervisory Board remuneration (in € k) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bernd Hirsch (until 06/2019) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
(100.0) |
% |
44 |
Dr. Claus Braestrup (until 06/2019) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
(100.0) |
% |
28 |
Michael Shalmi (until 06/2020) |
|
— |
|
— |
|
— |
|
— |
% |
— |
|
(100.0) |
% |
27 |
|
(55.0) |
% |
60 |
Prof. Dr. Wolfgang Plischke (until 06/2021) |
|
— |
|
— |
% |
— |
|
(100.0) |
% |
68 |
|
(54.7) |
% |
150 |
|
0.0 |
% |
150 |
Kasim Kutay (until 06/2022) |
|
— |
|
— |
% |
28 |
|
(53.3) |
% |
60 |
|
81.8 |
|
33 |
|
— |
|
— |
*Result 2022 corrected from € (8.3) million to € (17.0) million compared to 2022 report.
Miscellaneous
Evotec has Directors and Officers (D&O) liability insurance for the Management Board members. This insurance policy covers the personal liability of Management Board members for any claims made against them for damages in the exercise of their duties. The insurance includes an excess or deductible for the Management Board members in accordance with the German Stock Corporation Act.
Additional remarks
This English report is a translation of the German original. In the event of any differences, the German version is authoritative.
97
| C. | Board practices. |
Supervisory Board Practices
Evotec SE has a two-tier board system consisting of Evotec’s Management Board and Evotec’s Supervisory Board. The Management Board is responsible for managing Evotec and representing the Company in its dealings with third parties, while the Supervisory Board appoints and dismisses the members of Evotec’s Management Board and oversees the management of the Company. German law prohibits the Supervisory Board from making operational management decisions. The two boards, however, work closely together to achieve long-term and sustainable growth for the Company and to grow shareholder value. They agree on the Company’s strategy and on business transactions that are significant.
Evotec’s Supervisory Board consists of six members – as provided in the current Articles of Association – all of whom are elected by the shareholders by a simple majority of the votes cast at an Annual General Meeting (“AGM”). The proposal to the AGM is carried out in accordance with the GCGC’s recommendations regardless of gender, nationality or age, appointed based on their qualifications, work experience, independence and diversity. Four of the current members of Evotec’s Supervisory Board were elected at the AGM 2019. Constanze Ulmer-Eilfort was elected at the AGM 2021. Following the resignation of Kasim Kutay with effect as of the AGM 2022, the AGM 2022 elected Camilla Macapili Languille as his successor to the Supervisory Board. Following the resignation of the CEO in January 2024, Dr Mario Polywka was assigned from Supervisory Board as interim CEO for up to 12 months. During this period his Supervisory Board mandate is paused. The Company provides a relevant set of on-boarding materials regarding statutory documents, policies, rules of procedures etc. for each new Supervisory Board member, which set is also accessible to each member in a virtual Board room that was set up.
The Supervisory Board appoints a Chairperson and one Vice Chairperson from among its members. Prof. Dr. Iris Löw-Friedrich is elected Chairperson of the Supervisory Board, and Roland Sackers became her Vice Chairman. The members of the Supervisory Board are elected for a term of five years and may be re-elected. The term of the new Supervisory Board ends with the close of the AGM 2024 that is charged with approving the actions of the members of the Supervisory Board in the 2023 fiscal year.
The Supervisory Board has determined concrete objectives regarding its composition and competencies and prepared a profile of skills and expertise reflecting the company-specific situation. These objectives and skills profiles stipulate that the activities of the Company shall be represented by having a majority of independent Supervisory Board members with national and international experience in the respective fields of (i) R&D, (ii) Finance, Capital markets, Legal, Corporate Governance, (iii) Marketing and Sales and Operations and (iv) Healthcare Economy/Public Health. In addition, the Supervisory Board shall ensure that the individual age of a candidate shall not exceed 72 years at the time of the proposal. Diversity regarding female representation shall be ensured by having a target quota of at least 30% female members of the Supervisory Board. Finally, the Supervisory Board has agreed on two full terms as the regular limit of length of membership to the Supervisory Board. Overall, the Supervisory Board shall be composed in such a way that the majority of its members are independent and that its members as a group possess the knowledge, ability and expert experience required to properly complete its tasks.
98
Currently, the composition of Evotec’s Supervisory Board fulfills all those objectives: All members have an extensive international professional background from working in numerous internationally operating companies. Three nationalities are represented and there are four female members. Evotec’s aspiration of a “diversity of thoughts” is ensured by composing an international experienced Board with broad based skill sets rather than focusing specifically on to ethnic, gender or age diversity.
The following chart provides additional diversity information about our Supervisory Board.
Board Diversity Matrix (As of December 31, 2023) | ||||
Country of Principal Executive Office |
Germany |
|||
Foreign Private Issuer |
Yes |
|||
Disclosure Prohibited Under Home Country Law |
No |
|||
Total Number of Members |
6 |
|||
Female |
Male |
Non-Binary |
Did Not Disclose Gender |
|
Part I: Gender Identity | ||||
Directors |
[4] |
[2] |
[0] |
[0] |
Part II: Demographic Background | ||||
Underrepresented Individual in Home Country Jurisdiction |
0 |
|||
LGBTQ+ |
0 |
|||
Did Not Disclose Demographic Background |
6 |
|||
Our Supervisory Board as a whole generally makes decisions, however decisions on certain matters may be delegated to committees of our Supervisory Board to the extent permitted by law. The chairperson, or if he or she is prevented from doing so, the vice chairperson, chairs the meetings of the Supervisory Board and determines the order in which the agenda items are discussed, the method and order of voting, as well as any adjournment of the discussion and passing of resolutions on individual agenda items after a due assessment of the circumstances. Our Supervisory Board may designate further types of actions as requiring its approval.
In addition, each member of the Supervisory Board is obliged to carry out his or her duties and responsibilities personally, and such duties and responsibilities cannot be delegated generally and permanently to third parties. However, the Supervisory Board and its committees have the right to appoint independent experts for the review and analysis of specific circumstances in accordance with its control and supervision duties under applicable European and German law. We would bear the costs for any such independent experts that are retained by the Supervisory Board or any of its committees.
Pursuant to German law, the Supervisory Board may form committees from among its members and charge them with the performance of specific tasks. The Supervisory Board determines the committees’ tasks, authorizations, and processes. Where permissible by law, important powers of the supervisory board may also be transferred to committees.
99
By resolution, the Supervisory Board has established an Audit and Compliance Committee, a Remuneration and Nomination Committee and an ESG Committee. Set forth in the table below are the current members of each committee. Each of the committees regularly report at the Supervisory Board meetings about recent meetings and discussions.
Name of Committee |
|
Current Members as December 31, 2023 |
|
Audit and Compliance Committee |
|
Roland Sackers, Dr. Constanze Ulmer-Eilfort, Dr. Mario Polywka |
|
Remuneration and Nomination Committee |
|
Prof. Dr. Iris Löw-Friedrich, Roland Sackers, Dr. Elaine Sullivan |
|
ESG Committee |
|
Dr, Constanze Ulmer-Eilfort, Camilla Macapili Languille, Dr. Elaine Sullivan |
|
Audit and Compliance Committee
Our Audit and Compliance Committee consists of Roland Sackers and Dr. Constanze Ulmer-Eilfort. Dr. Mario Polywka was a member of the Audit and Compliance Committee throughout 2023 until stepping in as interim CEO in January 2024 . Roland Sackers is the chairperson of the Audit and Compliance Committee. All members of our Audit and Compliance Committee are considered as independent pursuant to German law and pursuant to the GCGC. The Audit and Compliance Committee assists the Supervisory Board in fulfilling its independent oversight responsibilities regarding financial reporting and control. The Audit and Compliance Committee shall further oversee our compliance program to ensure that such program meets applicable legal and regulatory requirements and appropriate industry standards. The Audit and Compliance Committee has the responsibility, among others, to:
| ● | Oversee the accounting and the accounting process, the appropriateness and effectiveness of the internal control system, as it relates to financial reporting. |
| ● | Review the availability of an established and functioning risk management and reporting system and monitor our major financial risk exposure. |
| ● | Oversee the internal process for related party transactions, including approval of any related party transaction outside normal business scope and conditions. |
| ● | Monitor our compliance with legal provisions, regulations, and internal company guidelines, discuss our major compliance risks and remediation efforts, and review the compliance program and its adequacy and effectiveness; |
| ● | Monitor the internal audit activities, based on approved annual audit plans and respective reports being generated for the individual audits. |
To enable the Audit and Compliance Committee to carry out its responsibilities, it has the authority, among others, to:
| ● | Conduct a preliminary review of the annual consolidated financial statements as well as the annual statutory financial statements. |
| ● | Prepare the Supervisory Board decisions regarding whether to approve the annual consolidated financial statements as well as the annual statutory financial statements and the Supervisory Board proposal to the AGM on the election of the independent auditors for the annual consolidated financial statements as well as the annual statutory financial statements. |
| ● | After consultation with the CEO and the CFO, award the audit engagement to the independent auditors elected by the Shareholders’ Meeting. |
| ● | Discuss the quarterly statements and the half-year financial report with the Management Board and the independent auditors. |
| ● | Discuss any material changes to the auditing and accounting methods; and |
100
| ● | Approve contracts awarded to the independent auditors or to companies that relate to them on a legal, business, or personal basis. |
Roland Sackers and Dr. Constanze Ulmer-Eilfort qualify as “independent directors” as such term is defined in Rule 10A-3 under the Exchange Act and Nasdaq Rule 5605. Additionally, Roland Sackers qualifies as an “Audit and Compliance Committee financial expert” as that term is defined under the Exchange Act.
Remuneration and Nomination Committee
The Remuneration and Nomination Committee consists of Prof. Dr. Iris Löw-Friedrich, Roland Sackers and Dr. Elaine Sullivan. Prof. Dr. Iris Löw-Friedrich is the chairperson of the Remuneration and Nomination Committee. The Remuneration and Nomination Committee’s duties and responsibilities to carry out its purpose include, among others:
| ● | Reviewing corporate goals and objectives for the remuneration of the members of the Management Board, including evaluation of the performance of the members of the Management Board considering these goals and making recommendations to the Supervisory Board for remuneration based on such evaluations. |
| ● | Reviewing all equity-based compensation plans and arrangements for members of the Management Board and making recommendations to the Supervisory Board regarding such plans. |
| ● | Reviewing and making recommendations to the Supervisory Board regarding service agreements and any severance arrangements or plans for members of the Management Board. |
| ● | Assisting the Supervisory Board in its oversight of the Management Board’s human resource management, including but not limited to corporate culture, diversity, and inclusion; |
| ● | Making proposals for the appointment and dismissal of members of the Management Board; and |
| ● | Identifying and screening individuals qualified to become members of the Supervisory Board. |
ESG Committee
Considering the increased importance of Environmental, Social and Governance (ESG) aspects in a corporate and global environment, Evotec’s Supervisory Board formed an ESG Committee in 2022. The ESG Committee consists of Dr. Constanze Ulmer-Eilfort, Camilla Macapili and Dr. Elaine Sullivan. Dr. Constanze Ulmer-Eilfort is the chairperson of the ESG Committee which is supported by the Company’s CEO, the Global Head of HR and the Head of Global Investor Relations & ESG. Together with the Management Board, the ESG Committee defines the priorities of Evotec with respect to environment, people, and governance on a rolling basis, and is advising on and monitoring the implementation of such priorities.
Management Board and Senior Management
Our Management Board consists of five members. Our Supervisory Board determines the exact number of members of our Management Board. The Supervisory Board may also appoint a chairperson or spokesperson of the Management Board. Dr. Werner Lanthaler has been appointed chairperson of the Management Board.
101
Our Supervisory Board appoints the members of our Management Board for a term of up to five years. However, new members of the Management Board are appointed for a term of up to three years. They are eligible for re-appointment or extension after the completion of their term in office or at the earliest one year prior to expiration of their term in office, in each case again for up to an additional five years. Extensions of existing contracts have been agreed with Dr. Werner Lanthaler, Dr. Cord Dohrmann and Dr. Craig Johnstone. In 2022 Dr Matthias Evers has been appointed as Chief Business Officer. in 2023, Laetitia Rouxel was appointed as new CFO. On January 15, 2024, Dr Mario Polywka has agreed to step in as interim CEO after Dr Werner Lanthaler stepped down as CEO. His Supervisory Board mandate is inactive while he works in his role as interim CEO for up to 12 months. Under certain circumstances, such as a serious breach of duty or a vote of no confidence by the shareholders in a shareholders’ meeting, a member of the Management Board may be dismissed with good cause prior to the completion of his or her term. Members of the Management Board have accepted no more than three supervisory board positions with other companies.
The members of our Management Board conduct the daily business of our company in accordance with applicable laws, our Articles of Association, and the rules of procedure for the Management Board adopted by our Supervisory Board. They are generally responsible for the management of our company and for handling our daily business relations with third parties, the internal organization of our business and communications with our shareholders.
A member of the Management Board of an SE governed by German law may not deal with or vote on matters relating to proposals, arrangements or contractual agreements between himself or herself and our Company, and a member of our Management Board may be liable to us if he or she has a material interest in any contractual agreement between our company and a third party which is not disclosed to and approved by our Supervisory Board.
The rules of procedure for our Management Board provide that generally the Management Board shall pass its resolutions by simple majority of the votes cast, but certain matters require a resolution of the entire Management Board, in addition to transactions for which a resolution adopted by the entire Management Board is required by law or required by our Articles of Association. The Management Board shall constitute a quorum when all members have been invited to a meeting and at least three of the five of the members including the CEO attend. Should a Chairman of the Management Board be appointed, his vote shall be decisive in the event of a parity of votes provided, however, that more than two members of the Management Board participate in passing the resolution. In case the CEO is not attending the meeting, the remaining 80% of the Management Board members shall constitute a quorum. In particular, the entire Management Board shall decide on the following matters, among others:
| ● | The budget plan for the following year, which is to be presented by the Management Board to the Supervisory Board in December of each year. |
| ● | Establishing corporate strategy, realization of organizational synergies and group objectives. |
| ● | Reporting to the Supervisory Board. |
| ● | All measures and transactions that require the Supervisory Board’s approval. |
| ● | All measures and transactions relating to a business area that is of extraordinary importance to Evotec or involving an extraordinary economic risk, including contracts outside the ordinary course of business or if the risk structure of a particular deal deviates significantly from the normal course of business more than €1,000,000. |
| ● | Taking on new lines of business or discontinuing existing lines of business. |
| ● | All global personnel related initiatives, such as Short- and Long-Term Incentive Plans. |
| ● | Investments with a total value above €3,000,000. |
| ● | Acquisitions or sales of interests or holdings and |
| ● | Certain large transactions. |
102
| D. | Employees. |
As of December 31, 2023, we employed 5,160 individuals worldwide (December 31, 2022: 4,952; December 31, 2021: 4,198). Of these total employees in 2023, 3,761 engaged in our EVT Execute segment, 456 engaged in EVT Innovate and 943 engaged in sales and enabling functions. In 2023, temporary employees represented 3.5% of our workforce. At the end of the reporting year, we had employees representing 93 different nationalities compared to 91 in 2022.
Heads as of December 31, |
|
2023 |
|
2022 |
Austria |
|
44 |
|
43 |
France |
|
1,056 |
|
1,035 |
Germany |
|
1,319 |
|
1,292 |
Italy |
|
926 |
|
940 |
Singapore |
|
1 |
|
— |
United Kingdom |
|
1,049 |
|
1,087 |
United States of America |
|
666 |
|
555 |
Grand Total |
|
5,061 |
|
4,952 |
We are committed to various environmental, social and governance initiatives, including achieving certain climate-based targets, championing diversity and inclusion and building a group-wide learning platform in connection with EVOacademy. We have a workers’ council at our Göttingen, Halle, Hamburg, Lyon, Munich, Toulouse and Verona sites, and collective bargaining agreements in place in Italy and France. None of our employees has engaged in any labor strikes or material labor disputes. We consider the relationship with employees to be positive.
| E. | Share ownership. |
The members of the Management Board and the Supervisory Board hold less than 1% of the shares issued by the Company. All shares granted unvested SPA’s and granted unvested RSA’s are listed below.
Share Ownership of Managing and Supervisory Directors’
Shares, SPA’s, RSA’s as of December 31, 2023
|
|
|
|
Out - standing |
|
Granted |
|
Out - standing |
|
Granted |
|
|
|
|
Shares from |
|
unvested |
|
Shares from |
|
unvested |
|
|
Shares |
|
vested SPA‘s |
|
SPA’s (total) |
|
vested RSA‘s |
|
RSA’s (total) |
Management Board |
|
|
|
|
|
|
|
|
|
|
Dr. Werner Lanthaler |
|
1,550,000 |
|
— |
|
170,182 |
|
— |
|
71,642 |
Dr. Cord Dohrmann |
|
195,079 |
|
— |
|
85,350 |
|
— |
|
29,851 |
Dr. Craig Johnstone |
|
20,161 |
|
— |
|
73,217 |
|
— |
|
34,980 |
Enno Spillner |
|
58,049 |
|
— |
|
61,663 |
|
— |
|
— |
Matthias Evers |
|
— |
|
— |
|
37,808 |
|
— |
|
39,353 |
Laetitia Rouxel |
|
— |
|
— |
|
— |
|
— |
|
— |
Supervisory Board |
|
|
|
|
|
|
|
|
|
|
Prof. Dr. Iris Löw-Friedrich |
|
— |
|
— |
|
— |
|
— |
|
— |
Camilla Macapili Languille |
|
— |
|
— |
|
— |
|
— |
|
— |
Dr. Mario Polywka |
|
11,938 |
|
— |
|
— |
|
— |
|
— |
Roland Sackers |
|
— |
|
— |
|
— |
|
— |
|
— |
Kasim Kutay |
|
— |
|
— |
|
— |
|
— |
|
— |
Dr. Constanze Ulmer-Eilfort |
|
— |
|
— |
|
— |
|
— |
|
— |
Dr. Elaine Sullivan |
|
— |
|
— |
|
— |
|
— |
|
— |
A detailed description of the SPA and share option plans granted to members of our Management Board and Supervisory Board can be found in the Notes (sections 2 and 21). All shares outstanding have the same voting rights.
103
Performance-related variable remuneration components
In line with the principles mentioned above, the Management Board remuneration is linked to Company performance and sustainable Company growth. Under the Remuneration system 2021 that applied until the AGM 2022, the Management Board remuneration comprised both short-term, annual remuneration (“bonus”) and long-term remuneration components (Share Performance Plan 2017 and Restricted Share Plan 2020), which were approved by the AGMs in 2017 and 2022. Payments for these components depend on achieving defined financial targets. If the targets are not achieved the payment of performance-based components may be reduced to zero. If the targets are significantly outperformed, however, the amount of the payment is capped. When the new Remuneration system 2022 took effect, the link to Company performance and sustainable Company growth described above was maintained, but the Restricted Share Plan 2020 is no longer part of the long-term remuneration component. The bonus policy was also modified This policy applies as of September 1, 2022, and so to the renewed contract with Dr Cord Dohrmann.
F.Disclosure of a registrants’ action to recover erroneously awarded compensation.
Not Applicable
Item 7. Major Shareholders and Related Party Transactions
| A. | Major shareholders. |
The following table presents information, as of December 31, 2023, regarding the beneficial ownership of our ordinary shares:
| ● | Each person, or group of affiliated persons, known by us to own beneficially 5% or more of our outstanding ordinary shares, |
| ● | Each member of our Supervisory Board. |
| ● | Each member of our Management Board; and |
| ● | All members of our Supervisory Board and Management Board as a group. |
The number of ordinary shares beneficially owned by each entity, person, and member of our Supervisory Board and our Management Board is determined in accordance with the rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under such rules, beneficial ownership includes any ordinary shares over which the individual has sole or shared voting power or investment power as well as any ordinary shares that the individual has the right to acquire within 60 days of December 31, 2023, through the exercise of any option, warrant or other right. Except as otherwise indicated, and subject to applicable community property laws, the persons named in the table have sole voting and investment power with respect to all ordinary shares held by that person.
The percentage of outstanding ordinary shares is computed based on 177,185,736 ordinary shares outstanding as of December 31, 2023, and 249,915 shares were held in treasury.
104
Except as otherwise indicated in the table below, the address for each beneficial owner is Essener Bogen 7, 22419 Hamburg, Germany.
|
|
Shares Beneficially Owned |
|
||
Name of Beneficial Owner |
|
Number of Shares |
|
Percentage of Class |
|
5% Beneficial Owner: |
|
|
|
|
|
T. Rowe Price Group (1) |
|
17,888,267 |
|
10.11 |
% |
Novo Holdings A/S (2) |
|
14,931,858 |
|
8.4 |
% |
Mubadala Investment Company (3) |
|
11,481,502 |
|
6.6 |
% |
Management Board and Supervisory Board: |
|
|
|
|
|
Dr. Werner Lanthaler |
|
1,550,000 |
|
* |
|
Dr. Cord Dohrmann |
|
195,079 |
|
* |
|
Dr. Matthias Evers |
|
— |
|
|
|
Dr. Craig Johnstone |
|
20,161 |
|
* |
|
Laetitia Rouxel (since April 1, 2023) |
|
|
|
|
|
Enno Spillner (until March 31, 2023) |
|
58,049 |
|
* |
|
Prof. Dr. Iris Löw-Friedrich |
|
— |
|
— |
|
Camilla Macapili Languille |
|
— |
|
— |
|
Dr. Elaine Sullivan |
|
— |
|
— |
|
Dr. Mario Polywka |
|
11,938 |
|
— |
|
Roland Sackers |
|
— |
|
— |
|
Dr. Constanze Ulmer-Eilfort |
|
— |
|
— |
|
All Management Board and Supervisory Board members as a group (12 persons) |
|
1,835,227 |
|
* |
|
* 1.0 percent.
| (1) | These securities are owned by various individual and institutional investors which T. Rowe Price Associates, Inc. (Price Associates) serves as an investment adviser with power to direct investments and/or sole power to vote the securities. For the purposes of the reporting requirements of the Securities Exchange Act of 1934, Price Associates is deemed a beneficial owner of such securities; however, Price Associates expressly disclaims that it is, in fact, the beneficial owner of such securities. The business address of T. Rowe Price Associates, Inc., is 4515 Painters Mill Road, Owing Mills, MD 21117. |
| (2) | Consists of 14,931,858 ordinary shares held by Novo Holdings A/S, Denmark, as reported on the 13G filed with the SEC on February 14, 2024. The business address of Novo Holdings A/S is Tuborg Havnevej 19, 2900 Hellerup, Denmark. |
| (3) | Consists of 11,481,502.5 ordinary shares held by ATIC Second International Investment Company LLC, Abu Dhabi. Mubadala Investment Company PJSC (“MIC”) is wholly owned by the Government of Abu Dhabi. Investment decisions are taken independently of the Government of Abu Dhabi by the board of directors of MIC, as reported on the 13D filed with the SEC on November 16, 2021. The business address of MIC is Mamoura A Building, Muroor Street, P.O. Box 45005, Abu Dhabi, United Arab Emirates. |
Management is not aware of any restriction of the voting rights or the right to transfer. We are not aware of any arrangement that may, at a subsequent date, result in a change of control of our company.
Holdings by U.S. Shareholders
As of December 31, 2023, 19.25% of our outstanding ordinary shares (including shares in the form of ADSs) were held by 34 U.S. record holders.
Control of Registrant
To our knowledge, we are not directly or indirectly owned or controlled by another corporation, by any foreign government, or by any other natural or legal person.
105
| B. | Related party transactions. |
For information on related party transaction see Note 32 “Related Party Transactions” of the Notes to Consolidated Financial Statements.
| C. | Interests of experts and counsel. |
Not applicable.
Item 8. Financial Information
| A. | Consolidated Statements and Other Financial Information. |
Our consolidated financial statements are appended at the end of this annual report on Form 20-F, starting at page F-1, and incorporated herein by reference.
Legal Proceedings
From time to time, we may be involved in legal proceedings in the ordinary course of business. We are currently not a party to any material legal or administrative proceedings. With a letter dated December 21, 2023, we have received a request for information from German Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) to provide certain information about the Company’s insider policies, insider lists, blackout periods, and director’s dealings throughout 2023. The Company has provided the requested information and is not expecting any proceedings against the Company. Beyond that, we are not aware of any other material legal or administrative proceedings contemplated to be brought against us. Regardless of outcome, litigation may have an adverse impact on our operations because of defense and settlement costs, diversion of management resources and other factors.
Dividend Policy
We have never paid or declared any cash dividends on our ordinary shares, and we do not anticipate paying any cash dividends on our ordinary shares soon. We intend to retain all available funds and any future earnings and reinvest them in the company’s further growth strategy to better leverage long- term growth and sustainability. All the shares represented by the ADSs generally have the same dividend rights as all our other outstanding shares.
| B. | Significant Changes. |
A detailed description of the significant changes can be found in the Notes (section 2).
Item 9. The Offer and Listing.
A. |
Offer and listing details. |
Our ordinary shares are traded on the Prime Standard of the Frankfurt Stock Exchange under the symbol “EVT”. Our ADSs are listed on the Nasdaq Global Select Market under the symbol “EVO.”
B. |
Plan of distribution. |
Not applicable.
C. |
Markets. |
For a description of our publicly traded common shares, see “Item 9. The Offering and Listing - A. Offer and Listing Details.”
106
D. |
Selling shareholders. |
Not applicable.
E. |
Dilution. |
Not applicable.
F. |
Expenses of the issue. |
Not applicable.
Item 10. Additional Information.
| A. | Share capital. |
Not applicable.
| B. | Memorandum and articles of association. |
The information set forth in our Registration Statement on F-1 (File No. 333-260143), effective upon the closing of our initial public offering originally filed with the SEC on October 8, 2021, under the heading DESCRIPTION OF SHARE CAPITAL AND ARTICLES OF ASSOCIATION (SATZUNG) is incorporated herein by reference and updated as follows:
Share Capital
As of December 31, 2023, we have share capital, part of which is yet to be registered in the commercial register (Handelsregister), in the amount of €177,185,736.00, which is divided into 177,185,736 no-par value bearer shares (Inhaberaktien). All shares are shares with no par value (Stückaktien ohne Nennbetrag) with a notional amount attributable to each ordinary share of €1.00. Each issued ordinary share is fully paid.
Changes in Our Share Capital During the Last Fiscal Years
Since January 1, 2023, and until December 31, 2023, our share capital has changed as follows:
| ● | Due to the utilization of our conditional capital created by resolutions on June 14, 2017, our share capital as registered with the commercial register (Handelsregister) was increased in our fiscal year 2023 by issuing a total of 233,083 shares. |
| ● | By resolution of the AGM on June 22, 2022, the Company’s Management Board was authorized until June 21, 2025, subject to Supervisory Board consent, to increase the Company’s share capital by up to € 35,321,639.00 by issuing a total of up to 35,321,639 new no-par value ordinary bearer shares against cash capital contributions and/or non-cash capital contributions on one or more occasions (Authorized Capital 2022). |
| ● | With the cancellation of the existing authorization of the Management Board regarding the Authorized Capital 2022 the AGM 2024 authorized the Management Board, with the approval of the Supervisory Board, until June 9, 2029 to increase the Company’s share capital by up to € 35.437.147.00 by issuing a total of up to 35.437.147.00 new no-par-value ordinary bearer shares against cash capital contributions and/or non-cash capital contributions on one or more occasions. |
107
| ● | Accordingly, the Company’s share capital is increased contingently by up to € 35,437,147.00 by the issue of up to 35,437,147 new ordinary no par bearer shares, with each share representing € 1.00 of share capital. The contingent capital increase serves to grant bearer shares to holders or creditors of convertible bonds and/or warrant-linked bonds and/or profit-linked bonds (or combinations of these instruments) that are issued for subscription in cash by Evotec SE or its direct or indirect invested companies on the basis of the authorization passed by the AGM 2024 under agenda item 6, and include a conversion right, a warrant or a conversion obligation for new bearer Company shares. |
Future Changes to the Share Capital
Authorized Capital
Under the relevant law, the general meeting of a European stock corporation (Societas Europaea) governed by German law can authorize the Management Board, with the consent of the Supervisory Board, to issue shares in a specified aggregate nominal amount of up to 50% of the issued share capital of such company at the time the resolution becomes effective. The shareholders’ authorization becomes effective upon registration in the commercial register (Handelsregister) and may extend for a period of no more than five years thereafter. Under § 5(5) of our Articles of Association (Satzung), the Management Board is authorized to increase our share capital, on one or more occasions, by a total of up to €35,321,639 by issuing, on one or more occasions, up to 35,321,639 new bearer shares with no par value (Genehmigtes Kapital), in each case with consent of the Supervisory Board. This authorization expires on June 21, 2025.
Conditional Capital
Pursuant to § 5(6) of our Articles of Association (Satzung), our share capital is conditionally increased by up to €1,200,000.00 through the issuance of new, bearer shares with no par value. The conditional capital may only be used to the extent that holders of subscription rights in the form of RSA based on the Restricted Share Plan 2020 make use of their right to subscribe for new shares in the Company. In 2023, no conditional capital pursuant to § 5(6) of our Articles of Association (Satzung) was used.
Pursuant to § 5(7) of our Articles of Association (Satzung), our share capital is conditionally increased by up to €6,000,000.00 through the issuance of new, bearer shares with no par value. The conditional capital may only be used to the extent that holders of subscription rights in the form of SPAs based on the Share Performance Plan 2022 make use of their right to subscribe for new shares in the Company. In 2023, no conditional capital pursuant to § 5(7) of our Articles of Association (Satzung) was used.
Pursuant to § 5(10) of our Articles of Association (Satzung), our share capital is conditionally increased by up to € 35,390,530.00 through the issuance of new, bearer shares with no par value. The conditional capital may only be used to issue shares to the owners or creditors of convertible bonds and/or warrant-linked bonds, participation rights and/or income bonds (or a combination of such instruments) that grant a conversion or option right to new no par value shares or designate a conversion obligation against cash contribution, issued by us or our directly or indirectly associated companies. In 2023, no conditional capital pursuant to § 5(10) of our Articles of Association (Satzung) was used.
Pursuant to § 5(11) of our Articles of Association (Satzung), our share capital is conditionally increased by up to €378,224.00 through the issuance of new, bearer shares with no par value. The conditional capital may only be used to the extent holders of subscription rights in the form of SPA based on the Share Performance Plan 2015 make use of their right to subscribe for new shares in the Company. In 2023, no conditional capital pursuant to § 5(11) of our Articles of Association (Satzung) was used.
Pursuant to § 5(12) of our Articles of Association (Satzung) our share capital is conditionally increased by up to € 4,962,269.00 through issuance of new, bearer shares with no par value. The conditional capital may only be used to the extent holders of subscription rights in the form of SPA based on the Share Performance Plan 2017 make use of their right to subscribe for new shares in the Company.
108
Preemptive Rights
Accordingly, under our Articles of Association (Satzung), the Management Board may, with the consent of the Supervisory Board, exclude such preemptive rights in a capital increase from the authorized capital:
| ● | to the extent that the new shares are issued in return for cash contributions and the proportional share of the share capital that applies to the shares to be newly issued does not in the aggregate exceed the amount of a total of €17,660,819.00 or, should this amount be lower, of a total of 10% of the share capital existing at the time of effectiveness and at the time of the first exercise of this authorization for precluded subscriptions, and the issue price of the new shares is not significantly below the market price of the existing listed shares of the Company at the time of the final determination of the issue price; |
| C. | Material contracts. |
We have not entered into any material contracts other than in the ordinary course of business and other than those described in “Item 4. Business Overview” or “Item 5. Operating and Financial Review and Prospects” or elsewhere in this annual report (including the Exhibits).
| D. | Exchange controls. |
There are currently no legal restrictions in the Federal Republic of Germany on international capital movements and foreign exchange transactions, except in limited embargo circumstances and connection with economic sanctions restrictions relating to certain areas, entities or persons because of applicable resolutions adopted by the United Nations and regulations and other legal provisions adopted by the European Union.
For statistical purposes, there are, however, reporting duties regarding transactions involving cross- border monetary transfers. With some exceptions, every corporation or individual residing in the Federal Republic of Germany must report to the German Central Bank (Deutsche Bundesbank) within a certain period of time (i) any payment received from, or made to, a non-resident corporation or individual, or for the account of such person, that exceeds €12,500 (or the equivalent in a foreign currency) and (ii) in case the sum of claims against, or liabilities payable to, non-residents or corporations exceeds €5,000,000 (or the equivalent in a foreign currency) at the end of any calendar month. Payments include cash payments made by means of direct debit, checks, and bills, remittances denominated in euros and other currencies made through financial institutions, netting, and clearing arrangements, as well as bringing in property and rights into a corporation, branch office or production site. Not included are payments made for the import and export of goods as well as payments made for the processing of loans. Infringements of these reporting duties can be fined as an administrative offense.
| E. | Taxation. |
German Taxation of Holders of ADSs
The following discussion addresses certain German tax consequences of acquiring, owning, or disposing of the ADSs. Except for “—Taxation of Holders Tax Resident in Germany” below, which provides an overview of dividend taxation and of capital gains taxation with respect to holders that are residents of Germany, this discussion applies only to U.S. treaty beneficiaries (defined below) that hold our ADSs.
This discussion is based on domestic German tax laws, including, but not limited to, circulars issued by German tax authorities, which, for example, are not binding on the German courts, and the Treaty (defined below). It is based upon tax laws in effect at the time of filing of this annual report. These laws are subject to change, possibly with retroactive effect. For example, certain member states of the European Union are considering introducing a financial transaction tax (Finanztransaktionssteuer) which, when introduced, may also be applicable on sales and/or transfer of ADSs. There is no assurance that German tax authorities will not challenge one or more of the tax consequences described in this discussion.
In addition, this discussion is based upon the assumption that each obligation in the deposit agreement and any related agreement will be performed in accordance with its terms. It does not purport to be a comprehensive or exhaustive description of all German tax considerations that may be of relevance in the context of acquiring, owning, and disposing of ADSs.
109
The tax information presented in this annual report is not a substitute for tax advice. Prospective holders of ADSs should consult their own tax advisors regarding the German tax consequences of the purchase, ownership, disposition, donation, or inheritance of ADSs considering their circumstances, including the effect of any state, local, or other foreign or domestic laws or changes in tax law or interpretation. The same applies with respect to the rules governing the refund of any German dividend and capital gain withholding tax (Kapitalertragsteuer) withheld. Only an individual tax consultation can appropriately account for the tax situation of each investor.
General
Based on the circular issued by the German Federal Ministry of Finance (BMF-Schreiben), dated May 24, 2013, reference number IV C 1-S2204/12/10003, as amended by the circular dated December 18, 2018 (reference number IV C 1 – S 2204/12/10003), in respect of the taxation of American Depositary Receipts, or ADRs, on domestic shares, or the ADR Tax Circular, for German tax purposes, the ADSs should represent a beneficial ownership interest in the underlying shares of Evotec and qualify as ADRs for the purpose of the ADR Tax Circular. If the ADSs qualify as ADRs under the ADR Tax Circular, dividends will accordingly be attributable to holders of the ADSs for German tax purposes, and not to the legal owner of the ordinary shares (i.e., the financial institution on behalf of which the ordinary shares are deposited at a domestic depository for the ADS holders).
Furthermore, holders of the ADSs should, considering the ADR Tax Circular, be treated as beneficial owners of the capital of Evotec with respect to capital gains (see below in section “—German Taxation of Capital Gains of the U.S. Treaty Beneficiaries of the ADSs”). However, investors should note that circulars published by the German tax authorities (including the ADR Tax Circular) are not binding on German courts, including German tax courts, and it is unclear whether a German court would follow the ADR Tax Circular in determining the German tax treatment of the ADSs.
Taxation of Holders Not Tax Resident in Germany
The following discussion describes selected German tax consequences of acquiring the ADSs, owning the ADSs and disposing of the ADSs for a holder that is a U.S. treaty beneficiary (defined below). For purposes of this discussion, a “U.S. treaty beneficiary” is a resident of the United States for purposes of the Convention between the Federal Republic of Germany and United States of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital and Certain Other Taxes of 1989, as amended by the Protocol as of June 1, 2006 (Abkommen zwischen der Bundesrepublik Deutschland und den Vereinigten Staaten von Amerika zur Vermeidung der Doppelbesteuerung und zur Verhinderung der Steuerverkürzung auf dem Gebiet der Steuern vom Einkommen und vom Vermögen und einiger anderer Steuern in der Fassung vom 1. Juni 2006) hereinafter referred to as the “Treaty,” who is eligible for relevant benefits under the Treaty.
A holder will be a U.S. treaty beneficiary entitled to full Treaty benefits in respect of the ADSs if it is, inter alia:
| ● | The beneficial owner of the ADSs (and the dividends paid with respect thereto). |
| ● | A U.S. tax resident corporation or individual. |
| ● | Not also a resident of Germany for German tax purposes; and |
| ● | Not subject to the limitation on benefits (i.e., anti-treaty shopping) article of the Treaty that applies in limited circumstances. |
Special rules apply to pension funds and certain other tax-exempt investors.
This discussion does not address the treatment of ADSs that are (i) held in connection with a permanent establishment or fixed base through which a U.S. treaty beneficiary carries on business or performs personal services in Germany or (ii) part of business assets for which a permanent representative in Germany has been appointed.
110
General Rules for the Taxation of Holders Not Tax Resident in Germany
Non-German resident holders of ADSs are subject to German taxation with respect to German source income (beschränkte Steuerpflicht). Dividends distributed by stock corporations having their registered seat or place of management in Germany qualify as German source income.
According to the ADR Tax Circular, income from the shares should be attributed to the holder of the ADSs for German tax purposes. Consequently, income from the ADSs should be treated as German source income. This only applies in general to dividend income as capital gains in case of ownership below 1% are generally not German source income.
The capital gains from the disposition of the ADSs realized by a non-German resident holder which does not maintain a permanent establishment or other taxable presence in Germany would be treated as German source income and be subject to German tax if the ADSs qualify as a Qualifying Participation. A “Qualifying Participation” exists if a holder at any time during the five years preceding the disposition, directly or indirectly, owned at least 1% or more of Evotec’s share capital, irrespective of whether through the ADSs or shares of Evotec. If such holder had acquired the ADSs without consideration, the previous owner’s holding period and quota would generally be considered.
Dividend payments, to the extent funded from Evotec’s tax-recognized contribution account (steuerliches Einlagekonto), do not, subject to certain prerequisites, form part of the taxable dividend income but should lower the holder’s acquisition costs for the ADSs.
German Withholding Taxation of Dividends of the U.S. Treaty Beneficiaries of the ADSs
Generally, the full amount of a dividend distributed by Evotec to a non-German resident holder which does not maintain a permanent establishment or other taxable presence in Germany is subject to (final) German withholding tax at an aggregate rate of 26.375% (that amount consists of 25% on dividends distributed plus solidarity surcharge of 5.5% thereon). The basis for the withholding tax is generally the dividend approved for distribution by our general shareholders’ meeting. German withholding tax is withheld and remitted to the German tax authorities by (i) the disbursing agent (i.e., the German credit institution, financial services institution or securities institution) and in each case including a German branch of a foreign enterprise, but excluding a foreign branch of a German enterprise)) that holds or administers the underlying shares in custody and (a) disburses or credits the dividend income from the underlying shares, (b) disburses or credits the dividend income from the underlying shares on delivery of the dividend coupons or (c) disburses such dividend income to a foreign agent; (ii) the central securities depository (Wertpapiersammelbank) holding the underlying shares in collective safe custody, if such central securities depository disburses the dividend income from the underlying shares to a foreign agent, or (iii) the Company itself if and to the extent shares held in collective custody (Sammelverwahrung) by the central securities depository (Wertpapiersammelbank) are treated as so-called “abgesetzte Bestände” (stock being held separately), in each case regardless of whether a holder must report the dividend for tax purposes and regardless of whether or not a holder is a resident of Germany.
Pursuant to the Treaty, the German withholding tax may generally not exceed (i) 15% of the gross amount of the dividends received by a U.S. treaty beneficiary other than a company holding ADSs which represent 10% or more of the voting shares in Evotec, and (ii) 5% of the gross amount of the dividends received by a U.S. treaty beneficiary that is a company holding ADSs which represent 10% or more of the voting shares in Evotec. The excess of the total withholding tax, including the solidarity surcharge, over the maximum rate of withholding tax permitted by the Treaty is refunded to U.S. treaty beneficiaries upon application. For example, for a declared dividend of 100, a U.S. treaty beneficiary initially receives 73.625 (100 minus the 26.375% withholding tax including solidarity surcharge). A U.S. treaty beneficiary other than a company holding ADSs which represent 10% or more of the voting shares in Evotec is generally entitled to a partial refund from the German tax authorities in the amount of 11.375% of the gross dividend (of 100). As a result, the U.S. treaty beneficiary should generally ultimately receive 85 (85% of the declared dividend) following the refund of the excess withholding.
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However, it should be noted that there is uncertainty as to how the German tax authorities will apply the refund process to dividends on the ADSs with respect to non-German resident holders. There may be a more detailed scrutiny with respect to ADSs because some fraudulent cases involving ADSs came to the attention of the German tax authorities in fall 2018. In those cases, owners of ADSs requested tax refunds although there were no underlying shares with respect to these ADSs. Therefore, it also cannot be excluded that the tax authorities want to treat ADSs differently in the future. The German Federal Ministry of Finance issued a circular (BMF-Schreiben), dated December 18, 2018, reference number IV C 1 —S 2204/12/10003, to address such fraudulent tax refund requests. The circular mandates that the issuance of a tax certificate (Steuerbescheinigung), a prerequisite to claim German withholding tax relief, requires the depository agent (Hinterlegungsstelle) to confirm that only ADSs were issued for which underlying shares were deposited with the depository agent at the issuances of the ADSs. This circular may result in a double withholding on dividends paid in the case the ADSs are being held by a non-tax resident or by a German tax resident in an account with a German (custody) bank (because the circular prohibits the issuance of so called “collective tax certificates” (“Sammelsteuerbescheinigungen”) which are generally the requirement to refrain from the “second withholding”), i.e. in such case the ADS Holders would need to request two tax certificates (Steuerbescheinigungen) in order to be able to fully reclaim (or credit) the tax withheld on the “second withholding”. Further, such refund is subject to the German anti-treaty-shopping rule (as described below in “— Withholding Tax Refund for U.S. Treaty Beneficiaries”).
German Withholding Taxation of Capital Gains of the U.S. Treaty Beneficiaries of the ADSs
Pursuant to the Treaty, capital gains from the disposal of a Qualifying Participation realized by a U.S. treaty beneficiary are, however, generally exempt from German taxation. Pursuant to the Treaty, U.S. treaty beneficiaries are not subject to German tax in relation to capital gains from the disposal of a Qualifying Participation even under the circumstances described in the preceding paragraph and therefore should not be subject to German taxation on capital gains from the disposition of the ADSs.
German statutory law practically requires the disbursing agent to levy withholding tax on capital gains from the sale of ADSs or other securities held in a custodial account in Germany. With regard to the German taxation of capital gains, disbursing agent generally means a German credit institution, financial services institution, securities trading enterprise or securities trading bank (in each case including a German branch of a foreign enterprise, but excluding a foreign branch of a German enterprise) that holds the ADSs in custody or administers the ADSs for the holder or conducts sales or other dispositions and disburses or credits the income from the disposal of the ADSs to the holder of the ADSs. The German statutory law does not explicitly condition the obligation to withhold taxes on capital gains being subject to taxation in Germany under German statutory law or on an applicable income tax treaty permitting Germany to tax such capital gains.
However, a circular issued by the German Federal Ministry of Finance, dated May 19, 2022, reference number IV C 1 - S 2252/19/10003 :009, as most recently amended by a circular dated December 20, 2022, IV C 1 - S 2252/19/10003 :011, provides that taxes need not be withheld when the holder of the custody account is not a resident of Germany for tax purposes and the income is not subject to German taxation. The circular further states that there is no obligation to withhold such tax even if the non-resident holder owns at least 1% of the share capital of a German corporation. Pursuant to German statutory law, the entity responsible for levying withholding tax (such as the disbursing agent) must take circulars issued by the German tax authorities which are published in the German Federal Tax Gazette (Bundessteuerblatt) (such as the circular mentioned above) into account when imposing withholding tax, so that in practice, the disbursing agents typically comply with the guidance mentioned above.
Therefore, a disbursing agent would only withhold tax at 26.375% on capital gains derived by a U.S. treaty beneficiary from the sale of ADSs held in a custodial account in Germany if the disbursing agent did not follow the abovementioned guidance. In this case, the U.S. treaty beneficiary may be entitled to claim a refund of the withholding tax from the German tax authorities under the Treaty, as described below in “—Withholding Tax Refund for U.S. Treaty Beneficiaries.” Claim a refund of taxes withheld on capital gains from the disposition of the ADSs, which do not qualify as Qualifying Participations or for which a statutory withholding tax requirement does not exist, may also base on German statutory domestic law.
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Withholding Tax Refund for U.S. Treaty Beneficiaries
U.S. treaty beneficiaries are generally eligible for treaty benefits under the Treaty, as described above in “—Taxation of Holders Not Tax Resident in Germany.” Accordingly, U.S. treaty beneficiaries are in general entitled to claim a refund of (i) the portion of the otherwise applicable 26.375% German withholding tax (Kapitalertragsteuer) on dividends that exceeds the applicable Treaty rate and (ii) the full amount of German withholding tax (Kapitalertragsteuer) on capital gains from the disposition of ADSs. The application for such claim is generally to be filed with the Federal Central Office of Taxation (Bundeszentralamt für Steuern) within four years after the end of the calendar year in which the capital gains or dividends have been received (bezogen) and, among other things, requires that a withholding tax certificate documenting the imposed German withholding tax is provided by the U.S. treaty beneficiary. Under the Withholding Tax Relief Modernization Act (Abzugsteuerentlastungsmodernisierungsgesetz) which was passed into law on June 9, 2021, the withholding tax certificate will be replaced for dividend income (including under ADRs) accruing after December 31, 2024, by a notification to be submitted by the disbursing agent directly to the Federal Central Tax Office upon request of the holder. In particular regarding ADRs, the disbursing agent will be required to include substantial additional information in the notification and will have to obtain certain confirmations from the issuer of the ADRs and will only be allowed to submit the notification (which will be a pre-requisite for any refund) to the Federal Central Tax Office once it has collected all information and confirmations.
However, in respect of dividends, the refund described in the preceding paragraph is only possible if, due to special rules on the restriction of withholding tax credit, the following three cumulative requirements are met: (i) the holder must qualify as beneficial owner of the ADSs for an uninterrupted minimum holding period of 45 days within a period starting 45 days prior to and ending 45 days after the due date of the dividends, (ii) the holder has to bear at least 70% of the change in value risk related to the ADSs during the minimum holding period as described under (i) of this paragraph and has not entered into (acting by itself or through a related party) hedging transactions which lower the change in value risk by more than 30%, and (iii) the holder must not be obliged to fully or largely compensate directly or indirectly the dividends to third parties. If these requirements are not met, then for a holder not being tax-resident in Germany who applied for a full or partial refund of the withholding tax pursuant to a double taxation treaty, no refund is available. This restriction generally does only apply if (a) the tax underlying the refund application is below a tax rate of 15% based on the gross amount of the dividends and (b) the holder does not directly own 10% or more of the shares of Evotec and is subject to income taxes in its state of residence, without being tax-exempt. The restriction of the withholding tax credit does not apply if the holder has beneficially owned the ADSs for at least one uninterrupted year prior to receipt (Zufluss) of the dividends. In addition to the restrictions, in particular, pursuant to a circular issued by the German Federal Ministry of Finance, dated July 9, 2021, reference number IV C 1-S 2252/19/10035:014, the withholding tax credit may also be denied as an anti-abuse measure.
In general, investors should note that it is unclear how the German tax administration will apply the refund process to dividends on the ADSs. Further, such refund is subject to the German anti-treaty shopping rule which has been reformed by the Withholding Tax Relief Modernization Act (Abzugsteuerentlastungsmodernisierungsgesetz) dated June 2, 2021. Under the reformed German anti-treaty shopping rule, a foreign company has no right to a refund of German withholding tax with regard to income accruing after June 8, 2021 to the extent (i) persons holding ownership interests in the foreign company would not be entitled to the refund if they derived the income (i.e. the dividend distributed by Evotec) directly and (ii) the source of the income does not have a substantial connection to the business activities of the foreign company. The mere generation of the income by the foreign company, passing the income on to the persons holding ownership interests in the foreign company and any activity of the foreign company which is conducted by a business organization that is not appropriate for the business purpose, do not qualify as a business activity within the meaning of the preceding sentence. However, the German anti-treaty shopping rule shall not apply (i) to the extent the foreign company demonstrates that none of the main purposes of its interposition was to obtain a tax advantage or (ii) if the foreign company’s principal class of stock is regularly traded in substantial volume on a recognized stock exchange. Whether or not and to which extent the anti-treaty shopping rule applies to the ADSs must be analyzed on a case-by-case basis considering all relevant tests. In addition, the interpretation of these tests is disputed and to date no published decisions of the German Federal Tax Court exist in this regard.
Due to the legal structure of the ADSs, only limited guidance from the German tax authorities exists on the practical application of the refund process with respect to the ADSs and the respective limitations. According to the current ADR Tax Circular, for ADR programs (which are considered comparable to ADS programs) a collective tax certificate in connection with a withholding of tax amounts may no longer be issued by the domestic depositary of the shares upon request of the foreign depositary agents. Rather, individual tax certificates need to be issued which might delay a potential refund procedure. Moreover, the simplified refund procedure based on electronic data exchange (Datenträgerverfahren) for claims for reimbursement based on ADRs is currently not applied by the tax authorities.
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Taxation of Holders Tax Resident in Germany
This subsection provides an overview of dividend taxation and of capital gains taxation regarding the general principles applicable to ADS holders that are tax resident in Germany. A holder is a German tax resident if, in case of an individual, he or she maintains a domicile (Wohnsitz) or a usual residence (gewöhnlicher Aufenthalt) in Germany or if, in case of a corporation, and it has its place of management (Geschäftsleitung) or registered seat (Sitz) in Germany.
The German dividend and capital gains taxation rules applicable to German tax residents require a distinction between ADSs held as private assets (Privatvermögen) and ADSs held as business assets (Betriebsvermögen).
ADSs as Private Assets (Privatvermögen)
If the ADSs are held as private assets by a German tax resident, dividends and capital gains (other than capital gains from the disposition of a Qualifying Participation) are taxed as investment income and are principally subject to 25% German flat income tax on capital income (Abgeltungsteuer) (plus a 5.5% solidarity surcharge (Solidaritätszuschlag) thereon, resulting in an aggregate rate of 26.375%), which is levied in the form of withholding tax (Kapitalertragsteuer). In other words, once deducted, the holder’s income tax liability on the dividends will be settled. Dividend payments to the extent funded from Evotec’s tax-recognized contribution account (steuerliches Einlagekonto), do not, subject to certain prerequisites, form part of the taxable dividend income but should lower the holder’s acquisition costs for the ADSs.
Holders of ADSs may apply to have their capital investment income assessed in accordance with the general rules and with an individual’s personal income tax rate if this would result in a lower tax burden. The holder would be taxed on gross personal investment income (including dividends or gains with respect to ADSs), less the saver’s allowance of €1,000 for an individual or €2,000 for a married couple and a registered civil union (eingetragene Lebenspartnerschaft) filing taxes jointly. The deduction of expenses related to the investment income (including dividends or gains with respect to ADSs) is generally not possible for private investors.
Losses resulting from the disposal of ADSs can only be offset against capital gains from the sale of any shares (Aktien) and other ADSs. If, however, a holder holds a Qualifying Participation, 60% of any capital gains resulting from the sale and transfer are taxable at the holder’s personal income tax rate (plus solidarity surcharge of up to 5.5% thereon). Conversely, 60% of any capital losses are recognized for tax purposes.
Since 2021, the basis for the calculation of the solidarity surcharge (Solidaritätszuschlag) has been reduced for certain individuals being subject to tax assessments (other than withholding taxes), and in certain cases, the solidarity surcharge has been eliminated for individuals. However, the elimination or reduction of the solidarity surcharge will not affect withholding taxes. Solidarity surcharge will still be levied at 5.5% on the full withholding tax amount and withheld accordingly. There will also not be any separate refund of such withheld solidarity surcharge in case the withholding tax cannot be refunded.
If applicable, church tax (Kirchensteuer) generally must be withheld from income generated by ADSs held by individuals based on an automatic data access procedure, unless the holder of ADSs has filed a blocking notice (Sperrvermerk) with the Federal Central Tax Office. The application of church tax (Kirchensteuer) reduces the aggregate rate of German flat income tax on capital income and the solidarity surcharge (Solidaritätszuschlag) thereon from 26.375% to typically approximately 25.79% or approximately 25.86% (thus resulting in an overall tax rate of approximately 27.82% or approximately 28%). Where church tax is not levied by way of withholding, it is determined by means of income tax assessment.
ADSs as Business Assets (Betriebsvermögen)
In case the ADSs are held as business assets, the taxation depends on the legal form of the holder (i.e., whether the holder is a corporation or an individual).
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Irrespective of the legal form of the holder, dividends are in principle subject to the aggregate withholding tax rate of 26.375%. The withholding tax is generally creditable in an amount of 25% of the gross dividend against the respective holder’s corporate income tax or income tax liability and in an amount of 1.375% of the gross dividend against the respective holder’s solidarity surcharge (Solidaritätszuschlag) liability. Due to special rules on the restriction of withholding tax credits in respect of dividends, a full withholding tax credit requires that the following three cumulative requirements are met: (i) the holder must qualify as beneficial owner of the ADSs for an uninterrupted minimum holding period of 45 days occurring within a period starting 45 days prior to and ending 45 days after the due date of the dividends, (ii) the holder has to bear at least 70% of the change in value risk related to the ADSs during the minimum holding period as described under (i) of this paragraph and has not entered into (acting by itself or through a related party) hedging transactions which lower the change in value risk for more than 30%, and (iii) the holder must not be obliged to fully or largely compensate directly or indirectly the dividends to other persons. Technically these special rules on the restrictions of withholding tax credits may also be applied with respect to ADSs held as private assets by German tax residents, however practically these special rules should generally not be applied pursuant to a circular issued by the German Federal Ministry of Finance, dated April 3, 2017, reference number IV C 1 – S 2299/16/10002, m.no. 131. If these requirements are not met cumulatively, three-fifths of the withholding tax imposed on the dividends must not be credited against the holder’s corporate income tax or income tax liability, but may be deducted, upon application, from the holder’s tax base for the relevant tax assessment period. A holder that is generally subject to German income tax or corporate income tax and that has received gross dividends without any deduction of withholding tax due to a tax exemption without qualifying for a full tax credit under the aforementioned requirements has to notify the competent local tax office accordingly, has to file withholding tax returns for a withholding tax of 15% in accordance with statutory formal requirements and has to make a payment in the amount of the omitted withholding tax deduction. The special rules on the restriction of withholding tax credit (and the corresponding notification and payment obligations) do not apply to a holder whose overall dividend earnings within an assessment period do not exceed €20,000 or that has been the beneficial owner of the ADSs for at least one uninterrupted year until receipt (Zufluss) of the dividends. In addition to the restrictions, in particular, pursuant to a circular issued by the German Federal Ministry of Finance, dated July 9, 2021, reference number IV C 1-S 2252/19/10035:014, as amended, the withholding tax credit may also be denied as an anti-abuse measure.
To the extent, the amount withheld exceeds the income tax liability; the withholding tax will be refunded, if certain requirements are met (including the requirements).
Special rules apply to credit institutions (Kreditinstitute), financial services institutions (Finanzdienstleistungsinstitute), financial enterprises (Finanzunternehmen), life insurance and health insurance companies, and pension funds.
In principle, dividends that a corporation receives from German or foreign corporations are subject to corporate income tax (and solidarity surcharge thereon) at a rate of 15.825% and subject to trade tax of approximately 7.0% to 21.0% depending on the multiplier applied by the relevant municipality. However, regarding holders in the legal form of a corporation, capital gains are in general effectively 95% tax exempt from corporate income tax (including solidarity surcharge). Dividends are also generally 95% tax exempt from corporate income tax (including solidarity surcharge), inter alia, if the holder directly held at least 10% of the registered share capital (Grundkapital oder Stammkapital) of Evotec (or, arguably, ADSs representing at least 10% of the registered share capital (Grundkapital oder Stammkapital) of Evotec) at the beginning of the calendar year (“Qualifying Dividends”). Five percent of the capital gains and five percent of the Qualifying Dividends are treated as non-deductible business expenses, respectively, and, as such, are subject to corporate income tax (including solidarity surcharge); actual business expenses incurred to generate dividends may be deducted. The acquisition of a participation of at least 10% during a calendar year is deemed to have occurred at the beginning of such calendar year for the determination of whether a dividend is a Qualifying Dividend. Participations in the share capital of Evotec held through a partnership, including co-entrepreneurships (Mitunternehmerschaften), are attributable to the respective partner only on a pro rata basis at the ratio of its entitlement to the profits of the partnership. Moreover, actual business expenses allocable to the dividends are deductible.
Capital gains and dividend income of a German tax resident corporation are generally subject to German trade tax of approximately 7.0% to 21.0% depending on the multiplier applied by the relevant municipality. The 95% exemption for capital gains generally applies also for trade tax purposes.
However, the amount of any dividends after deducting business expenses related to the dividends is not subject to trade tax if the corporation directly or indirectly held at least 15% of Evotec’s registered share capital at the beginning of the relevant tax assessment period. In this case, the exemption of 95% of the dividend income also applies for trade tax purposes. Losses from the sale of ADSs are generally not tax deductible for corporate income tax and trade tax purposes.
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Regarding individuals holding ADSs as business assets, 60% of dividends and capital gains are taxed at the individual’s personal income tax rate (plus up to 5.5% solidarity surcharge (Solidaritätszuschlag) thereon). Correspondingly, only 60% of business expenses related to the dividends and capital gains as well as losses from the sale of ADSs are principally deductible for income tax purposes.
Since 2021, the basis for the calculation of the solidarity surcharge (Solidaritätszuschlag)) and, if applicable, church tax (Kirchensteuer) has been reduced for certain individuals subject to tax assessments (other than withholding taxes), and in certain cases, the solidarity surcharge has been eliminated for individuals. Church tax (Kirchensteuer) may affect the withholding tax rate as described above in “—ADSs as Private Assets (Privatvermögen).” The dividend income and 60% of the capital gains are generally subject to trade tax, which is fully or partly creditable against the individual’s personal income tax by a lump-sum method (and such credit also reduces the solidarity surcharge (Solidaritätszuschlag) and, if applicable, church tax (Kirchensteuer)). Dividends (after deduction of business expenses economically related thereto) are exempt from trade tax if the holder held at least 15% of Evotec’s registered share capital at the beginning of the relevant tax assessment period.
German Inheritance and Gift Tax (Erbschaft- und Schenkungsteuer)
The transfer of ADSs to another person by inheritance or gift should be generally subject to German inheritance and gift tax—applying the principles set forth in the ADR Tax Circular although the ADR Tax Circular does not explicitly refer to this tax—only if:
| (i) | The decedent or donor or heir, beneficiary or other transferee (a) maintained his or her domicile or a usual residence in Germany, (b) had its place of management or registered office in Germany at the time of the transfer, (c) is a German citizen who has spent no more than five consecutive years outside of Germany without maintaining a domicile in Germany or (d) is a German citizen who serves for a German entity established under public law and is remunerated for his or her service from German public funds (including family members who form part of such person’s household, if they are German citizens) and is only subject to estate or inheritance tax in his or her country of domicile or usual residence with respect to assets located in such country (special rules apply to certain former German citizens who neither maintain a domicile nor have their usual residence in Germany); or |
| (ii) | At the time of the transfer, the ADSs are held by the decedent or donor as business assets forming part of a permanent establishment in Germany or for which a permanent representative in Germany has been appointed; or |
| (iii) | The ADSs subject to such transfer form part of a portfolio that represents at the time of the transfer 10% or more of the registered share capital of Evotec and that the decedent or donor has held directly or indirectly, either alone or together with related persons. |
The Agreement between the Federal Republic of Germany and the United States of America for the avoidance of double Taxation with respect to taxes on inheritances and gifts as of December 21, 2000 (Abkommen zwischen der Bundesrepublik Deutschland und den Vereinigten Staaten von Amerika zur Vermeidung der Doppelbesteuerung auf dem Gebiet der Nachlass-, Erbschaft- und Schenkungssteuern in der Fassung vom 21. Dezember 2000), hereinafter referred to as the “United States-Germany Inheritance and Gifts Tax Treaty,” provides that the German inheritance tax or gift tax can, with certain restrictions, only be levied in the cases of
(i) and (ii) above. Special provisions apply to certain German citizens living outside of Germany and former German citizens.
Other Taxes
No German transfer tax, value-added tax, stamp duty or similar taxes are assessed on the purchase, sale, or other transfer of ADSs. If certain requirements are met, an entrepreneur may opt, however, for value-added tax on transactions that are otherwise tax-exempt. Net wealth tax (Vermögensteuer) is currently not imposed in Germany.
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Material U.S. Federal Income Tax Considerations
The following is a discussion of material U.S. federal income tax consequences to U.S. Holders, as defined below, of owning and disposing of our ADSs. It does not describe all tax considerations that may be relevant to a particular person’s decision to acquire the ADSs and the ownership and disposition thereof. This discussion applies only to a U.S. Holder that holds the ADSs as capital assets for U.S. federal income tax purposes, and this discussion applies only to such ADSs. This discussion assumes the ADS are denominated in U.S. dollars. This discussion is general in nature, and it does not describe all of the U.S. federal income tax consequences under provisions of the U.S. Internal Revenue Code of 1986 as amended (the “Code”) that may be relevant in light of the U.S. Holder’s particular circumstances, including but not limited to state and local tax consequences, alternative minimum tax consequences, the potential application of the Medicare contribution tax, estate or gift tax consequences, any tax consequences other than U.S. federal income tax consequences, and tax consequences applicable to U.S. Holders subject to special rules, such as:
| ● | Certain financial institutions including banks and insurance companies. |
| ● | Regulated investment companies, real estate investment trusts, certain former citizens, or residents of the United States, “controlled foreign corporations,” “passive foreign investment companies,” corporations that accumulate earnings to avoid U.S. federal income tax, or expatriated entities subject to Section 7874 of the Code. |
| ● | Dealers or traders in securities who use a mark-to-market method of tax accounting. |
| ● | Persons holding ADSs as part of a hedging transaction, straddle, wash sale, conversion transaction or other integrated transaction or persons entering a constructive sale with respect to the ADSs. |
| ● | Persons whose functional currency for U.S. federal income tax purposes is not the U.S. dollar. |
| ● | Entities or arrangements classified as partnerships for U.S. federal income tax purposes or other pass-through entities or investors in such entities, |
| ● | Tax-exempt entities, including an “individual retirement account” or “Roth IRA”. |
| ● | Any persons directly or indirectly acquiring our ADSs in connection with the performance of services. |
| ● | Persons who are required to accelerate the recognition of any item of gross income with respect to |
ADSs because of such income being recognized on an applicable financial statement.
| ● | Persons that own or are deemed to own directly or indirectly ten percent or more of our capital stock, including shares represented by ADSs, (by vote or value); or |
| ● | Persons holding ADSs in connection with a trade or business, permanent establishment, or fixed base conducted outside of the United States. |
If an entity or arrangement that is classified as a partnership for U.S. federal income tax purposes holds ADSs, the U.S. federal income tax treatment of a partner will generally depend on the status of the partner and the activities of the partner and the partnership. Partnerships holding ADSs and partners in such partnerships should consult their tax advisors as to the U.S. federal income tax consequences of owning and disposing of the ADSs.
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This discussion is based on the Code, administrative pronouncements, judicial decisions, final, temporary and proposed (to the extent to which taxpayers may rely thereon) Treasury Regulations, and the income tax treaty between Germany and the United States (the “Treaty”), all as of the date hereof, any of which is subject to change or differing interpretations, possibly with retroactive effect, so as to result in U.S. federal income tax consequences different from those discussed below. It is also based in part on representations by the depositary and assumes that each obligation under the deposit agreement and any related agreement will be performed in accordance with its terms. We have not sought, and do not expect to seek, any ruling from the U.S. Internal Revenue Service (the “IRS”) with respect to the statements made and the conclusions reached in the following summary, and there can be no assurance that the IRS or a court would agree with our statements and conclusions or that a court would not sustain any challenge by the IRS in the event of litigation.
A “U.S. Holder” is a holder who, for U.S. federal income tax purposes, is a beneficial owner of ADSs, who is eligible for the benefits of the Treaty and who is:
| (i) | an individual who is a citizen or individual resident of the United States. |
| (ii) | a corporation, or other entity taxable as a corporation, created or organized in or under the laws of the United States, any state therein, or the District of Columbia. |
| (iii) | an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or |
| (iv) | a trust if either (1) a court within the United States can exercise primary jurisdiction over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust, or (2) the trust has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person. |
In general, a U.S. Holder who owns ADSs will be treated as the owner of the underlying ordinary shares represented by those ADSs for U.S. federal income tax purposes. Accordingly, no gain or loss will be recognized if a U.S. Holder exchanges ADSs for the underlying ordinary shares represented by those ADSs. U.S. Holders are urged to consult their tax advisors concerning the U.S. federal, state, and local and non-U.S. tax consequences to them of the exchange of ADSs for the underlying ordinary shares represented by those ADSs, as well as the ownership and disposition of such ordinary shares in light of their particular circumstances.
The U.S. Treasury has expressed concern that parties to a pre-release of American depositary shares, or intermediaries in the chain of ownership between holders and the issuer of the security underlying the American depositary shares, may be taking actions that are inconsistent with the claiming of foreign tax credits by holders of American depositary shares. These actions would also be inconsistent with the claiming of the reduced rate of tax, described below, applicable to dividends received by certain non-corporate holders. Accordingly, the creditability of German taxes, and the availability of the reduced tax rate for dividends received by certain non-corporate U.S. Holders, each described below, could be affected by actions taken by such parties or intermediaries.
U.S. Holders are urged to consult their tax advisors concerning the U.S. federal, state, local, and non-U.S. tax consequences of owning and disposing of ADSs in their particular circumstances. In particular, because our group currently includes U.S. subsidiaries, (i.e., Evotec (US), Inc. and Just Evotec Biologics Inc.) and therefore under current law our foreign subsidiaries are treated as controlled foreign corporations (regardless of whether we are or are not treated as a controlled foreign corporation), any U.S. Holder that owns or is deemed to own ten percent or more of our capital stock, directly or through ADSs, (by vote or value) is urged to consult its tax advisor regarding the potential application of the “Subpart F income” and “global intangible low-taxed income” rules to an investment in our ADSs.
THIS SUMMARY IS FOR GENERAL INFORMATION PURPOSES ONLY, AND IS NOT INTENDED TO BE, AND SHOULD NOT BE CONSTRUED TO BE, LEGAL OR TAX ADVICE TO ANY PARTICULAR HOLDER. PROSPECTIVE INVESTORS ARE URGED TO CONSULT THEIR TAX ADVISORS WITH REGARD TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS, AS WELL AS THE APPLICATION OF U.S. NON- INCOME TAX LAWS AND THE LAWS OF ANY STATE, LOCAL, OR NON-U.S. JURISDICTION, IN LIGHT OF THEIR PARTICULAR SITUATION.
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Dividends
As discussed above under “Dividend Policy,” we do not expect to make distributions on our ADSs soon. If we do make distributions of cash or other property, subject to the PFIC rules described below, distributions paid on ADSs, other than certain pro rata distributions of ordinary shares, will generally be treated as dividends to the extent paid out of our current or accumulated earnings and profits (as determined under U.S. federal income tax principles). To the extent a distribution with respect to ADSs exceeds our current or accumulated earnings and profits, as determined under U.S. federal income tax principles, the distribution will be treated, first, as a tax-free return of the U.S. Holder’s investment, up to the holder’s adjusted tax basis in its ADSs, and, thereafter, as capital gain, which is subject to the tax treatment described below in “—Gain on Sale, Exchange or Other Taxable Disposition.” Because we do not, and do not intend to, maintain calculations of our earnings and profits under U.S. federal income tax principles, we expect that distributions generally will be reported to U.S. Holders as dividends, even if that distribution would otherwise be treated as a non-taxable return of capital or as capital gain under the rules described above. If and for so long as our ADSs are listed on the Nasdaq or another established securities market in the United States (in the case of ADSs) or if and for so long as we are eligible for benefits under the Treaty, dividends paid to certain non-corporate U.S. Holders may be eligible for taxation as “qualified dividend income” if we are not treated as a PFIC with respect to the U.S. Holder in the taxable year in which the dividend is paid and were not treated as a PFIC with respect to the U.S. Holder in the preceding taxable year, and if certain minimum holding period and other requirements are met, and therefore, subject to applicable limitations and the discussion above regarding concerns expressed by the U.S. Treasury, may be taxable at rates not in excess of the long-term capital gain rate then applicable to such U.S. Holders. U.S. Holders should consult their tax advisors regarding the availability of the reduced tax rate on dividends in their circumstances. The amount of a dividend will include any amounts withheld by us in respect of German income taxes. Subject to the PFIC rules described below, the amount of the dividend will be treated as foreign-source dividend income to U.S. Holders and will not be eligible for the dividends-received deduction generally available to U.S. corporations under the Code. For U.S. foreign tax credit purposes, the dividends will generally be treated as passive category income. Subject to the PFIC rules described below, dividends will be included in a U.S. Holder’s income on the date of the depositary’s receipt of the dividend. The amount of any dividend income paid in euros will be the U.S. dollar amount calculated by reference to the exchange rate in effect on the date of actual or constructive receipt, regardless of whether the payment is in fact converted into or exchanged for U.S. dollars at that time. If the dividend is converted into U.S. dollars on the date of receipt, a U.S. Holder should not be required to recognize foreign currency gain or loss in respect of the dividend income. A U.S. Holder may have foreign currency gain or loss if the dividend is converted into U.S. dollars after the date of receipt. Generally, any gain or loss resulting from currency exchange fluctuations during the period from the date the dividend payment is included in income to the date the payment is converted into U.S. dollars will be treated as ordinary income or loss and will not be eligible for the special tax rate applicable to qualified dividend income. This gain or loss will generally be U.S.-source gain or loss for foreign tax credit purposes.
Subject to applicable limitations, some of which vary depending upon the U.S. Holder’s particular circumstances, and subject to the discussion above regarding concerns expressed by the U.S. Treasury, the German tax withheld in accordance with the Treaty at a rate not exceeding the rate provided by the Treaty and paid over to the German taxing authority will be creditable or deductible against a U.S. Holder’s U.S. federal income tax liability. To the extent a refund of the tax withheld is available to a U.S. Holder under German law or under the Treaty, the amount of tax withheld that is refundable will not be eligible for credit against a U.S. Holder’s U.S. federal income tax liability (and will not be eligible for the deduction against U.S. federal taxable income described below) and German taxes withheld in excess of the rate applicable under the Treaty will not be eligible for credit against a U.S. Holder’s U.S. federal income tax liability. In lieu of claiming a foreign tax credit, U.S. Holders may, at their election, deduct foreign taxes, including any German income tax, in computing their taxable income, subject to generally applicable limitations under U.S. law. An election to deduct foreign taxes instead of claiming foreign tax credits applies to all foreign taxes paid or accrued in the taxable year. The rules governing foreign tax credits are complex, and U.S. Holders should consult their tax advisors regarding the creditability of foreign taxes in their circumstances.
Gain On Sale, Exchange, or Other Taxable Disposition
Subject to the PFIC rules described below, gain or loss realized on the sale or other taxable disposition of ADSs will be capital gain or loss, and will be long-term capital gain or loss if the U.S. Holder held the ADSs for more than one year. Long-term capital gains of non-corporate U.S. Holders are generally taxed at preferential rates. The amount of the gain or loss will equal the difference between the U.S. Holder’s tax basis in the ADSs disposed of (which, subject to the PFIC rules described below, generally will equal the cost of such ADSs to the U.S. Holder) and the amount realized on the disposition, in each case as determined in U.S. dollars. This gain or loss will generally be U.S.-source gain or loss for foreign tax credit purposes. The deductibility of capital losses is subject to various limitations.
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If the consideration received by a U.S. Holder is not paid in U.S. dollars, the amount realized will be the U.S. dollar value of the payment received determined by reference to the spot rate of exchange on the date of the sale or other disposition. However, if the ADSs are treated as traded on an “established securities market” and a U.S. Holder is either a cash basis taxpayer or an accrual basis taxpayer that has made a special election (which must be applied consistently from year to year and cannot be changed without the consent of the IRS), such U.S. Holder will determine the U.S. dollar value of the amount realized in a non-U.S. dollar currency by translating the amount received at the spot rate of exchange on the settlement date of the sale. If a U.S. Holder is an accrual basis taxpayer that is not eligible to or does not elect to determine the amount realized using the spot rate on the settlement date, such U.S. Holder will recognize foreign currency gain or loss to the extent of any difference between the U.S. dollar amount realized on the date of sale or disposition and the U.S. dollar value of the currency received at the spot rate on the settlement date.
Passive Foreign Investment Company (“PFIC”) Considerations
Under the Code, we will be a PFIC for any taxable year in which, after the application of certain “look- through” rules with respect to subsidiaries, either (i) 75% or more of our gross income consists of “passive income,” or (ii) 50% or more of the average quarterly value of our assets consist of assets that produce, or are held for the production of, “passive income.” For purposes of the above calculations, we will be treated as if we hold our proportionate share of the assets of and directly receive our proportionate share of the income of, any other corporation in which we directly or indirectly own at least 25%, by value, of the shares of such corporation. Passive income generally includes dividends, interest, rents, certain non-active royalties, and capital gains. Although we have not performed a definitive PFIC analysis using U.S. federal income tax principles, based on certain estimates as to the composition of our income and assets, including the implied value (based on our market capitalization) of our assets that produce non-passive income during 2023, we do not believe that we were a PFIC for our 2023 taxable year. However, there can be no assurance that the IRS will agree with our conclusion. In addition, whether we or any of our subsidiaries will be a PFIC in 2023 or any future year is a factual determination that must be made annually at the close of each taxable year, and, thus, is subject to significant uncertainty, because among other things (i) we currently own a substantial amount of passive assets, including cash and securities that may give rise to passive income, (ii) the valuation of our assets that may generate non-passive income for PFIC purposes, including our intangible assets, is uncertain and may vary substantially over time, (iii) the treatment of grants as income for U.S. federal income tax purposes is unclear, and (iv) the composition of our income, if any, may vary substantially over time. The average quarterly value of our assets for purposes of determining our PFIC status for any taxable year will generally be determined in part by reference to our market capitalization, which has fluctuated and may continue to fluctuate significantly over time. Accordingly, there can be no assurance that we will not be a PFIC in 2023 or any taxable year. If we are a PFIC for any year during which a U.S. Holder holds or is deemed to hold ADSs, we generally would continue to be treated as a PFIC with respect to that U.S. Holder for all succeeding years during which the U.S. Holder holds or is deemed to hold the ADSs, even if we ceased to meet the threshold requirements for PFIC status, unless under certain circumstances the U.S. Holder makes a valid deemed sale or deemed dividend election under the applicable Treasury Regulations with respect to its ADSs.
Under attribution rules, assuming we are a PFIC, U.S. Holders will be deemed to own their proportionate shares of any Lower-tier PFICs and will be subject to U.S. federal income tax according to the rules described in the following paragraphs on (i) certain distributions by a Lower-tier PFIC and (ii) a disposition of shares of a Lower-tier PFIC, in each case as if the U.S. Holder held such shares directly, even if the U.S. Holder has not received the proceeds of those distributions or dispositions.
If we were a PFIC for any taxable year during which a U.S. Holder held or is deemed to have held ADSs (assuming such U.S. Holder has not made a timely mark-to-market election, as described below), gain recognized by a U.S. Holder on a sale or other disposition (including certain pledges) of such ADSs, or an indirect disposition of shares of a Lower-tier PFIC, would be allocated ratably over the U.S. Holder’s holding period for such ADSs. The amounts allocated to the taxable year of the sale or other disposition and to any year before we became a PFIC would be taxed as ordinary income. The amount allocated to each other taxable year would be subject to tax at the highest rate in effect for individuals or corporations, as appropriate, for that taxable year, and an interest charge would be imposed on the amount allocated to that taxable year. Further, to the extent that any distribution received by a U.S. Holder with respect to its ADSs (or a distribution by a Lower-tier PFIC to its shareholder that is deemed to be received by a U.S. Holder) exceeds 125% of the average of the annual distributions on the ADSs received during the preceding three years or the U.S. Holder’s holding period, whichever is shorter, that distribution would be subject to taxation in the same manner as gain, described immediately above.
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A U.S. Holder can avoid certain of the adverse rules described by making a mark-to-market election with respect to its ADSs, if the ADSs are “marketable.” ADSs will be marketable if they are “regularly traded” on a “qualified exchange” or other market within the meaning of applicable Treasury Regulations. If the mark-to-market election is available and a U.S. Holder makes the mark-to-market election, it generally will recognize as ordinary income any excess of the fair market value of the ADSs at the end of each taxable year over their adjusted tax basis. Accordingly, such mark-to-market election may accelerate the recognition of income without a corresponding receipt of cash. An electing U.S. Holder will recognize an ordinary loss in respect of any excess of the adjusted tax basis of the ADSs over their fair market value at the end of the taxable year (but only to the extent of the net amount of income previously included because of the mark-to-market election). If a U.S. Holder makes the election, the U.S. Holder’s tax basis in the ADSs will be adjusted to reflect the income or loss amounts recognized. Any gain recognized on the sale or other disposition of the ADSs, as applicable, in a year when we are a PFIC will be treated as ordinary income and any loss will be treated as an ordinary loss (but only to the extent of the net amount of income previously included because of the mark-to-market election). U.S. Holders should consult their tax advisors regarding the availability and advisability of making a mark-to-market election in their particular circumstances. The mark-to-market election applies to the taxable year for which the election is made and all subsequent taxable years, unless the ADSs cease to be treated as “marketable” for purposes of the PFIC rules or the IRS consents to its revocation.
In addition, to avoid the application of the foregoing rules, a United States person that owns stock in a PFIC for U.S. federal income tax purposes may make a “qualified electing fund” election (a “QEF Election”) with respect to such PFIC, and each PFIC in which the PFIC holds equity interests, if the PFIC provides the information necessary for such election to be made. To make such an election, a United States person would be required to make the QEF Election for each PFIC by attaching a separate properly completed IRS Form 8621 for each PFIC to the United States person’s timely filed U.S. federal income tax return generally for the first taxable year that the entity is treated as a PFIC with respect to the United States person. A U.S. Holder generally may make a separate election to defer payment of taxes on the undistributed income inclusion under the QEF rules, but if deferred, any such taxes are subject to an interest charge. If a United States person makes a QEF Election with respect to a PFIC, the United States person will be currently taxed on its pro rata share of the PFIC’s ordinary earnings and net capital gain (at ordinary income and capital gain rates, respectively) for each taxable year that the entity is classified as a PFIC and will not be required to include such amounts in income when actually distributed by the PFIC. There is no assurance that we will provide information necessary for U.S. Holders to make QEF Elections. If a U.S. Holder makes a QEF Election with respect to us, any distributions paid by us out of our earnings and profits that were previously included in the U.S. Holder’s income under the QEF Election will not be taxable to the U.S. Holder. A U.S. Holder will increase its tax basis in its ADSs by an amount equal to any income included under the QEF Election and will decrease its tax basis by any amount distributed, if any, on the ADSs that is not included in its income. In addition, a U.S. Holder will recognize capital gain or loss on the disposition of ADSs in an amount equal to the difference between the amount realized and its adjusted tax basis in the ADSs. U.S. Holders should note that if they make QEF Elections with respect to Lower-tier PFICs, if any, and us they might be required to pay U.S. federal income tax with respect to their ADSs, for any taxable year significantly in excess of any cash distributions, if any, received on the ADSs, as applicable, for such taxable year. U.S. Holders should consult their tax advisors regarding making QEF Elections in their particular circumstances.
In addition, if we were a PFIC or, with respect to a particular U.S. Holder, were treated as a PFIC for the taxable year in which we paid a dividend or for the prior taxable year, the preferential dividend rates discussed above with respect to dividends paid to certain non-corporate U.S. Holders would not apply.
If a U.S. Holder owns ADSs during any year in which we are a PFIC, the U.S. Holder generally must file annual reports, containing such information as the U.S. Treasury may require on IRS Form 8621 (or any successor form) with respect to us, generally with the U.S. Holder’s federal income tax return for that year, unless otherwise specified in the instructions with respect to such form. The failure to file IRS Form 8621 could result in the imposition of penalties and the extension of the statute of limitations with respect to U.S. federal income tax return.
The IRS has finalized Treasury Regulations that address various issues related to determining whether a foreign corporation is a PFIC and whether a U.S. shareholder holds PFIC stock and has released proposed Treasury Regulations that address various issues related to determining whether a foreign corporation is a PFIC. These final Treasury Regulations and proposed Treasury Regulations (if finalized) may affect whether we are a PFIC in 2023 or any future year. You should consult your tax advisor regarding the effect, if any, these Treasury Regulations may have, or such proposed Treasury Regulations would have, on the determination of our PFIC status.
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U.S. Holders should consult their tax advisors concerning our potential PFIC status and the potential application of the PFIC rules. The U.S. federal income tax rules relating to PFICs are very complex. U.S. Holders are strongly urged to consult their tax advisors with respect to the impact of PFIC status on the purchase, ownership and disposition of our ADSs, as applicable, the consequences to them of an investment in a PFIC (and any Lower-tier PFICs), any elections available with respect to our ADSs and the IRS information reporting obligations with respect to the purchase, ownership and disposition of shares of a PFIC (including any ADSs representing such shares).
Information Reporting and Backup Withholding
Payments of dividends and sales proceeds that are made within the United States or through certain U.S.-related financial intermediaries generally are subject to information reporting, and may be subject to backup withholding, unless (i) the U.S. Holder is a corporation or other exempt recipient or (ii) in the case of backup withholding, the U.S. Holder provides a correct taxpayer identification number and certifies that it is not subject to backup withholding generally on an IRS Form W-9.
Backup withholding is not an additional tax. The amount of any backup withholding from a payment to a U.S. Holder will be allowed as a credit against the U.S. Holder’s U.S. federal income tax liability and may entitle it to a refund if the required information is timely furnished to the IRS.
Information Reporting with Respect to Foreign Financial Assets
Certain U.S. Holders who are individuals and certain entities may be required to report information relating to an interest in the ADSs, subject to certain exceptions (including an exception for ADSs held in accounts maintained by certain U.S. financial institutions). Such U.S. Holders who fail to timely furnish the required information may be subject to a penalty. U.S. Holders should consult their tax advisors regarding whether they are obligated to report information relating to their ownership and disposition of ADSs.
| A. | Dividends and paying agents. |
Not applicable.
| B. | Statements by experts. |
Not applicable.
| C. | Documents on display. |
We are subject to the information reporting requirements of the Exchange Act applicable to foreign private issuers. Accordingly, we are required to file reports and other information with the SEC, including annual reports on Form 20-F and reports on Form 6-K. The SEC maintains an internet website that contains reports and other information about issuers, like us, that file electronically with the SEC. The address of that website is www.sec.gov.
| D. | Subsidiary Information. |
Not applicable.
| E. | Annual Report to Security Holders |
Not applicable.
Item 11. Quantitative and Qualitative Disclosures about Market Risk.
We are exposed to several financial risks concerning specific areas including but not limited to foreign exchange risk, interest risk, liquidity risk and credit risk. Market risk is the risk that changes in market conditions will affect our results of operations or the value of the financial instruments held.
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Foreign Exchange Risk
We operate via our Euro zone companies, mainly in Germany, Italy, France, and Austria, but we also conduct business in the United Kingdom and the United States. Our consolidated financial statements are reported in Euros. Our exposure to the risk of changes in foreign exchange rates relates primarily to our operating activities and we carry both translational and transactional foreign exchange risk. We generate a significant portion of our revenue and incur a significant portion of our expenses in certain non-Euro currencies, principally U.S. dollars and pound sterling. We hold our deposits primarily in three major currencies (Euro, U.S. dollars and pound sterling) in which we do business. For the year ended December 31, 2023, 65% and 11% of our revenue and 28% and 20% our cost of revenue was in U.S. dollars and pound sterling, respectively.
We currently engage in hedging activities and use forward contracts and spot transactions to convert U.S. dollars to Euros and pound sterling by means of mitigating our exposure to exchange rate fluctuations.
Translational risk:
Exchange rate fluctuations between the applicable foreign currency and the Euro will affect the translation of foreign subsidiaries’ financial results into Euro for the purpose of reporting our consolidated statements of comprehensive income. The process by which we translate each foreign subsidiary’s financial results to Euro is as follows:
| ● | assets and liabilities including goodwill of foreign subsidiaries with functional currencies other than the Euro are translated into Euro using the respective exchange rates at the end of the reporting period. |
| ● | income statements of subsidiaries are translated using monthly average exchange rates during the respective period. |
Gains or losses resulting from translating foreign functional currency financial statements are recognized directly in other comprehensive income and realized on termination of the respective position.
Transactional risk:
We record all foreign currency transaction and remeasurement gains and losses as other finance income (expense), net on the consolidated income statement. We do not have significant operations in countries considered highly inflationary.
Interest Rate Risk
We are exposed to interest rate risk through variable interest-bearing loans as well as current investments, in Germany, but also at our foreign entities. The fair value of debt varies from the carrying amount if there is a difference between the underlying interest rate to the market interest rate.
We regularly assess using interest rate hedging instruments to protect against interest rate risks from our borrowings.. In June 2019, two interest rate swaps with a total notional of € 48.25 million were agreed against a fixed rate of 0.17% for the 5-year maturity and 0.24% for the 7 year maturity, respectively. In addition, two additional interest rate swaps with a notional of € 22.5 million each were concluded in 2021 and canceled in 2022 which resulted in an additional interest expense in 2022 of 4.68m from fair value movements. We conduct sensitivity analyses annually based on the exposure to interest rates at the applicable reporting date, which is discussed in our consolidated financial statements included in this report. Financial instruments with fixed interest rates or those covered by an interest rate swap are not subject to cash flow risks and therefore are not included in the sensitivity analysis.
Liquidity Risk
Liquidity risk is the risk that we will not be able to meet our financial obligations as they fall due. Our approach to managing liquidity is to ensure, as far as possible, that we will always have sufficient liquidity to meet liabilities when due, under both normal and stressed conditions, without incurring unacceptable losses or risking damage to our reputation.
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Credit Risk
Credit risk is the risk of financial loss if a customer or counterparty to a financial instrument fails to meet our contractual obligations. Our credit risk arises primarily from cash and cash equivalents and other financial assets, including deposits with banks and financial institutions, as well as credit exposures to customers, including outstanding receivables and contract assets. We attempt to limit our exposure to credit risk by maintaining our bank accounts and short-term deposits with well-established banks. For our credit exposure to customers, we perform ongoing credit evaluations of our customers’ financial condition and maintain an appropriate specific allowance for uncollectible accounts receivable based upon the expected collectability of all accounts receivable. Our accounts receivables are generally unsecured and are not backed by collateral from our customers. As of December 31, 2023, and December 31, 2022, one customer accounted for 6% and 22% of our trade receivables, respectively. Concentrations of credit risk with respect to trade accounts receivables are generally limited by geographically diverse customers as well as industry -group wise differentiated customers (pharma, biotech, foundations),and our monitoring procedures.
Item 12. Description of Securities Other than Equity Securities.
| A. | Debt Securities. |
Not applicable.
| B. | Warrants and Rights. |
Not applicable.
| C. | Other Securities. |
Not applicable.
| D. | American Depositary Shares. |
JPMorgan Chase Bank, N.A., as depositary, registers and delivers the American Depositary Shares, or the ADSs. Each ADS represents one-half of one share (or a right to receive one share) deposited with BNP Paribas (Deutschland) OHG as custodian for the depositary in Germany. Each ADS also represents any other securities, cash, or other property, which may be held by the depositary. The deposited shares together with any other securities, cash or other property held by the depositary are referred to as the deposited securities. The depositary’s office at which the ADSs will be administered, and its principal executive office are located at 383 Madison Avenue, Floor 11, New York, New York 10179.
For more complete information, you should read the entire amended and restated deposit agreement and the form of American Depositary Receipt. A copy of the amended and restated deposit agreement and the form of American Depositary Receipt are incorporated by reference as Exhibits 2.1 and 2.2 of this annual report, respectively.
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Fees and Expenses
Persons depositing or withdrawing shares or ADS holders must pay:
$5.00 (or less) per 100 ADSs (or portion of 100 ADSs) |
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Issuance of ADSs, including issuances resulting from a distribution of shares or rights or other property Cancellation of ADSs for the purpose of withdrawal, including if the deposit agreement terminates |
$0.05 (or less) per ADS |
|
Any cash distribution to ADS holders |
A fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited for issuance of ADSs |
|
Distribution of securities distributed to holders of deposited securities (including rights) that are distributed by the depositary to ADS holders |
an aggregate fee of U.S.$0.05 or less per ADS per calendar year (or portion thereof) |
|
For services performed by the Depositary in administering the ADSs |
Registration or transfer fees |
|
Depositary services Transfer and registration of shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares |
Charges of the depositary |
|
SWIFT, cable and facsimile transmission and delivery charges. including a cancellation transaction fee of $15.00 will be charged per cancellation request (when expressly provided in the deposit agreement or disclosed on adr.com) |
Fees of the depositary |
|
Converting foreign currency to U.S. dollars, as disclosed on adr.com |
Taxes and other governmental charges the depositary or the custodian has to pay on any ADSs or shares underlying ADSs, such as stock transfer taxes, stamp duty or withholding taxes |
|
As necessary |
Any charges incurred by the depositary or its agent for servicing the deposited securities |
|
As necessary |
The depositary collects its fees for delivery and surrender of ADSs directly from investors depositing shares or surrendering ADSs for the purpose of withdrawal or from intermediaries acting for them. The depositary collects fees for making distributions to investors by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services by deduction from cash distributions, by directly billing investors, or by charging the book-entry system accounts of participants acting for them. The depositary may collect any or all of its fees by deduction from any cash distribution payable (or by selling a portion of securities or other property distributable) to ADS holders that are obligated to pay those fees. The depositary may generally refuse to provide fee-attracting services until its fees for those services are paid.
From time to time, the depositary may make payments to us to reimburse us for costs and expenses generally arising out of establishment and maintenance of the ADS program, waive fees and expenses for services provided to us by the depositary or share revenue from the fees collected from ADS holders. In performing its duties under the deposit agreement, the depositary may use brokers, dealers, foreign currency dealers or other service providers that are owned by or affiliated with the depositary and that may earn or share fees, spreads, or commissions.
The depositary may convert currency itself or through any of its affiliates and, in those cases, acts as principal for its own account and not as agent, advisor, broker or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction spreads, that it will retain for its own account. The revenue is based on, among other things, the difference between the exchange rate assigned to the currency conversion made under the deposit agreement and the rate that the depositary or its affiliate receives when buying or selling foreign currency for its own account. The depositary makes no representation that the exchange rate used or obtained in any currency conversion under the deposit agreement will be the most favorable rate that could be obtained at the time or that the method by which that rate will be determined will be the most favorable to ADS holders, subject to the depositary’s obligations under the deposit agreement. The methodology used to determine exchange rates used in currency conversions is available at adr.com.
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PART II
Item 13. Defaults, Dividend Arrearages and Delinquencies.
None.
Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds.
| A. | Material modifications to instruments. |
Not applicable.
| B. | Material modification to rights. |
Not applicable.
| C. | Withdrawal or submission of assets. |
Not applicable.
| D. | Changes in trustees or paying agents. |
Not applicable.
| E. | Use of proceeds. |
On November 3, 2021, our registration statement on Form F-1 (File No. 333-260143), as amended, was declared effective by the SEC for our initial public offering of our ADSs, each representing one-half of one ordinary share, no par value per share, pursuant to which we offered and sold a total of 22,995,000 of our ADSs, at a public offering price of $21.75 per share. Morgan Stanley and BofA Securities acted as lead joint book-running managers for the offering. The offering began on November 3, 2021, and was completed on November 8, 2021.
There has been no significant change in the planned use of proceeds from our initial public offering as described in our prospectus dated November 3, 2021, and filed with the SEC on November 3, 2021. The proceeds were used as follows:
| ● | approximately $100.0 million to expand our biologics manufacturing capacity in the United States at the existing J.POD facility in Redmond, Washington by fully building out the facility to three production trains and six production bioreactors and to continue to advance our end-to-end continuous biologics manufacturing technologies. |
| ● | approximately $175.0 million for building additional J.POD capacity in Toulouse, France. |
| ● | approximately $35.0 million for expanding our precision medicine platform, which includes the expansion of our iPSC technology platform through building new capacities in Hamburg, Germany, expanding our Panomics / Panhunter platforms to broaden access to patient derived samples and disease relevant data as well as expanding our capabilities to analyze the growing amount of data that is core to our business model. |
| ● | approximately $115.0 million for unpartnered R&D to accelerate pipeline activities. We expect that the funds would support investments for the development of additional new programs, which could be further explored with partners in future; and |
| ● | approximately $80.0 million to expand our portfolio of EVOequity investments through investments in new companies and participation in future financing rounds of our existing portfolio companies. |
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Item 15. Controls and Procedures.
| A. | Disclosure Controls and Procedures. |
As required by Rule 13a-15 under the Exchange Act, our management, including our CEO and our CFO, has evaluated the effectiveness of our disclosure controls and procedures as of the end of the period covered by this report. Disclosure controls and procedures refer to controls and other procedures designed to ensure that information required to be disclosed in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC. Disclosure controls and procedures include, without limitations, controls and procedures designed to ensure that information required to be disclosed by us in our reports that we file or submit under the Exchange Act is accumulated and communicated to management, including our CEO and our CFO, or persons performing similar functions, as appropriate to allow timely decisions regarding our required disclosures.
In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management is required to apply its judgement in evaluating the cost-benefit relationship of possible controls and procedures.
Our management, with the participation of our CEO and CFO, carried out an evaluation of the effectiveness of our disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of December 31, 2023, the end of the period covered by this annual report. Based upon that evaluation, and because of the material weaknesses described below and our inability to provide required financial information in a timely manner, management concluded that, as of December 31, 2023, our disclosure controls and procedures were not effective at the reasonable assurance level.
Notwithstanding the material weaknesses described in Management’s Report on Internal Control over Financial Reporting, our management has concluded that our financial statements for the periods covered by and included in this annual report are prepared in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standard Board (“IASB”) and fairly present, in all material respects, our financial position, results of operations and cash flows for each of the periods presented herein.
B.Management’s annual report on internal control over financial reporting.
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as defined in Rules 13-15(f) and 15d-15(f) under the Exchange Act of 1934, as amended, for the Company. Internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of the financial statement in accordance with IFRS that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of a company’s assets, (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that a company’s receipts and expenditures are being made only in accordance with authorizations of a company’s management and directors, and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of a company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
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Under the supervision and with the participation of our CEO and CFO, management assessed the effectiveness of our internal control over financial reporting as of December 31, 2023, based on the framework set forth in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this assessment, our management concluded that our internal control over financial reporting was not effective as of December 31, 2023, because of the material weaknesses described below.
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of annual or interim financial statements will not be prevented or detected on a timely basis.
Material Weaknesses Identified
As of December 31, 2023, we did not maintain appropriately designed controls impacting the control environment, risk assessment procedures, and effective monitoring controls to prevent or detect material misstatements to the consolidated financial statements. These deficiencies were attributed to: (a) ineffective design and operation of controls pertaining to user access rights over systems that are critical to the Company’s system of financial reporting; and (b) a lack of consistent application of business processes and procedures. These deficiencies constituted material weaknesses in our internal controls over financial reporting in both design and operation. The material weaknesses identified related to (i) lack of design and maintenance of effective controls over revenue recognition; review of manual journal entries; appropriate foreign exchange rates used in the accounting system; triggering events and valuation of equity instruments and associated convertible notes receivables; completeness and existence of fixed assets and accuracy of disclosures and segment reporting (ii) lack of design, maintenance, and operation of effective controls over IT system access management leading to improper segregation of duties, improper security of the active directory and improper user access rights critical to the Company’s system of financial reporting. Therefore, it is possible that Evotec’s business process and controls that rely on the accuracy and completeness of data generated by the scoped systems could be adversely affected due to the considerations listed above.
Remediation Activities and Plans
Management is committed to remediating the material weaknesses in a timely fashion. As of the reporting date, we have already executed several measures and are actively progressing with additional enhancements over the control, process and tool implementations as outlined in our comprehensive remediation plan. These actions will address the material weaknesses in internal control over financial reporting. The remediation plan considers the following measures:
| ● | We have implemented in November 2023 an upgrade to our IFS ERP system that improves the design of IT General Controls for supporting the company’s internal control processes. The implementation of the adapted process in our ERP system enables us to create a control design that can eliminate the material weaknesses in the 2024 financial year. Notably: |
| o | With go live date mid-April 2024, implementation of a global rights and roles concept to streamline ERP access management across our organization. These includes adjusted approval rules, standardized roles and permissions aligned with job functions, reducing the likelihood of conflicting access rights. In parallel we started to enhance the process with an interface from our ERP systems to our HR system |
| o | With go live date mid-April 2024, implementation of a daily FX upload check to verify the accuracy and completeness of FX data recorded in our systems. This includes automated alerts for discrepancies or irregularities. We conduct a comprehensive review of default exchange rates used in our systems for FX transactions and implemented adjustments to default exchange rates if necessary. Our ERP system ensures restriction over the changes to authorized personnel with appropriate approvals. |
| o | With go live date mid-April 2024, incorporation of an automated process in our ERP system for document upload, four-eye principle, and automated mandatory approval process for all manual journal entries. |
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| ● | The identified weaknesses in our active directory process stem from the manual procedures for handling new users and deactivations. These manual processes were implemented after the cyberattack to restore business operations. However, the automated processes that were in place before the cyberattack have been reinstated since December 2023. The clean-up of the identified issues was completed on February 23, 2024. As an immediate preventive measure, we have increased the frequency of checks from annually to quarterly. Additionally, our IT and HR service department is currently exploring additional measures to enhance the security over the automated process and interface between the ERP and HR systems for the future; |
| ● | We have launched a project aimed at thoroughly harmonizing and automating the end-to-end order-to-cash process, encompassing the identification and remediation of challenges associated with revenue recognition; |
| ● | Key positions in Finance were filled in late 2023. In doing so, management created a center of excellence with technical accounting and internal control expertise on local level and at the headquarter; |
| ● | Enhancing existing policies and creating standardized processes. These processes commence is ongoing at a central level, through the design and maintenance of controls focused on the origination of contracts and associated accounting, including contract combinations and modifications, supported by tools and decision matrices that are being developed for revenue recognition and lease accounting. |
We believe we are making progress toward achieving the effectiveness of our internal control over financial reporting and disclosure controls and procedures. The actions we are taking are subject to ongoing senior management review, as well as Audit and Compliance Committee oversight. We are committed to establishing and maintaining a strong internal control environment and implementing measures designed to help ensure that control deficiencies contributing to the material weaknesses are remediated as soon as possible.
As we work to remediate our material weaknesses and continue to evaluate and work to improve our internal control over financial reporting, our management is likely to determine that additional steps or measures may be necessary to address and remediate the material weaknesses. Management may also determine that it is necessary to modify the above-mentioned remediation efforts depending on the circumstances and Company needs. We cannot assure you that these remediation efforts will be successful or that its internal control over financial reporting will be effective in accomplishing all control objectives all of the time. Management will continue to assess the effectiveness of these remediation efforts in connection with its evaluations of internal control over financial reporting.
In addition to the remediation steps discussed above, we continue with changes included implementation of new controls, identification of key controls, evaluation and, where necessary, improvement of the existing controls. This included an evaluation of business process controls, information technology general controls, key reports as well as entity level controls in all material subsidiaries of Evotec SE.
Remediation of Previously Identified Material Weaknesses
In connection with the preparation and audit of our consolidated financial statements for the financial year ended December 31, 2022, we previously identified a material weakness related to inventory valuation, lease accounting and the presentation of derivatives. During 2023 we improved the control design and control frequency for the presentation of derivatives in our financial statement. The inventory valuation process in 2022 for inventory valuation in the US was build up on a manual reconciliation of the former warehouse movement system with our former ERP system and was transferred as of Jan 1, 2023, into a fully automated process in our new ERP system. Finally, a new process and policy was build up and implemented in 2023 for lease accounting to ensure the identification and complete and timely recording of lease contracts. We concluded these material weaknesses were remediated as of December 31, 2023.
While we are implementing the measures required to fully remediate the material weaknesses, we cannot predict the success of such measures or the outcome of our assessment of these measures at this time, and we cannot assure you that we will be able to fully remediate our material weakness in the future. See “Item 3. Key Information — D. Risk factors — Risks Related to Our Business —“.
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C.Attestation report of the registered public accounting firm.
The effectiveness of our internal control over financial reporting as of December 31, 2023, has been audited by BDO AG Wirtschaftsprüfungsgesellschaft, an independent registered public accounting firm. Their report is included on page F-2. BDO AG Wirtschaftsprüfungsgesellschaft is a member of the Chamber of Public Accountants (Wirtschaftsprüferkammer), Berlin, Germany.
| D. | Changes in internal control over financial reporting |
Other than as described above in Item 15.B of this annual report, there were no changes to our internal control over financial reporting (as defined in Rule 13a-15(f) and 15d-15(f) under the Securities and Exchange Act of 1934) that occurred during the period covered by this Form 20-F that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 16. [Reserved]
Item 16A. Audit committee financial expert.
Our Board of directors has determined that Roland Sackers is an audit committee financial expert as defined by SEC rules and has the requisite financial sophistication under the applicable rules and regulations of the Nasdaq Stock Market. Roland Sackers is not only independent, and has the required specialist knowledge and experience in the application of accounting principles and internal control processes and the audit, including sustainability reporting and its audit and assurance. Roland Sackers’ expertise in the field of accounting includes special knowledge and experience in the application of accounting principles and internal control and risk management systems, and his expertise in the field of auditing includes special knowledge and experience in the auditing of financial statements. In addition, as former member of the Management Board of Evotec, Dr Mario Polywka has expertise in the field of accounting, internal control, and risk management systems. The Company has determined that Roland Sackers, Dr. Mario Polywka and Dr. Constanze Ulmer-Eilfort are independent as such term is defined in Rule 10A-3 under the Exchange Act and under the listing standards of the Nasdaq Stock Market. For more information see “Item 6. Directors, Senior Management and Employees — C. Board Practices — Committees — Audit Committee.” Detail about Dr. Mario Polywka’s qualifications and responsibilities are included here pursuant to his role during 2023; as mentioned Dr. Mario Polywka paused his Supervisory Board mandate to act as interim CEO as of January 4, 2024.
Item 16B. Code of Ethics.
We have adopted a Code of Conduct, which covers a broad range of matters including the handling of conflicts of interest, compliance issues and other corporate policies such as insider trading and equal opportunity and non-discrimination standards. The Code of Conduct applies to all our Supervisory Board members, Management Board members, directors of our subsidiaries and our affiliates and employees. The full text of the Code of Conduct is available on our website at www.evotec.com. The information and other content appearing on our website does not constitute a part of this annual report and is not incorporated by reference herein. Any amendments or waivers from the provisions of the Code of Conduct for members of our Supervisory or Management Boards will be disclosed on our website promptly following the date of such amendment or waiver.
Our Code of Conduct also includes our policy on conflicts of interest and sets forth guidelines for employee conduct which are intended to prevent actual or perceived conflicts of interest. Under our conflicts of interest policy, employees are directed to avoid situations in which they are directly or indirectly involved in, linked to, or draw personal gain from external business activities if those activities are in any way linked to the activities of Evotec. Additionally, employees may not make use of, disclose, or share any company information that is not in the public domain or do any transactions with stock of the Company based on insider knowledge. These prohibitions also apply to the family members and close friends of employees.
Our compliance policies and procedures are designed to ensure compliance with applicable legal requirements, while at the same time implementing high ethical standards that are mandatory for both management and each employee. For example, the company requires that all board members and other employees attend electronic or face-to-face trainings tailored to specific compliance issues and risks at the company. Our compliance program is overseen by the company’s compliance officer who functions as an independent and objective body that reviews and evaluates compliance issues and concerns within our organization. The overall responsibility for the compliance management system lies with the Management Board. The Audit and Compliance Committee receives regular reports on the operation of the compliance management system.
130
Item 16C. Principal Accountant Fees and Services.
BDO AG, Wirtschaftsprüfungsgesellschaft (BDO) has served as our independent registered public accounting firm for the year ended December 31, 2023 and December 31, 2022.
The following table sets out the aggregate fees for professional audit services and other services rendered exclusively by BDO and other firms in the BDO network in 2023 and 2022:
(in 000`€) |
|
2023 |
|
2022 |
Audit Fees1 |
|
4,088 |
|
2,460 |
Audit-Related Fees |
|
60 |
|
43 |
Audit fees related to prior year audit |
|
1,504 |
|
402 |
All Other Fees |
|
— |
|
77 |
Total |
|
5,651 |
|
2,982 |
1 Previous year figures have been adjusted to include fees of all BDO network firms.
Audit fees are the aggregate fees charged by BDO network firms for auditing our consolidated financial statements and statutory and other regulatory filings or engagements of Evotec SE and its subsidiaries.
Audit-Related fees of k€ 60 relate to the audit of the non-financial report including sustainability-related disclosures.
The Audit Committee has approved the audit fees and all the fees for other assurance services and other fees for other services for the years 2023 and 2022. The Audit Committee monitors compliance with the German and U.S. rules on non-audit services provided by an independent registered public accounting firm. On a yearly basis, the Audit Committee pre-approves non-audit services performed by the independent registered public accounting firm up to a limit in line with EU regulation.
Item 16D. Exemptions from the Listing Standards for Audit Committees.
None.
Item 16E. Purchases of Equity Securities by the Issuer and Affiliated Purchasers.
None.
Item 16F. Change in Registrant’s Certifying Accountant.
Not applicable.
Item 16G. Corporate Governance.
Evotec SE is incorporated under the laws of Germany, with securities publicly traded in the Frankfurt Stock Exchange and the United States Nasdaq. As a foreign private issuer, Nasdaq Stock Market Rule 5615(a) generally permits us to follow home country corporate governance practices instead of certain provisions of the Nasdaq Stock Market Rules. The following summarizes the principal ways in which our corporate governance practices differ from the Nasdaq corporate governance rules applicable to U.S. domestic issuers (the Nasdaq Stock Market Rules).
131
German Law overview
The primary sources of law relating to the corporate governance of a German company are the German Act on the Implementation of Council Regulation No. 2157/2001 of October 8, 2001, on the Statute for a European Company (Gesetz zur Ausführung der Verordnung (EG) Nr. 2157/2001 des Rates vom 8. Oktober 2001 über das Statut der Europäischen Gesellschaft (SE) – SE-Ausführungsgesetz; “SE-AG”) of December 22, 2004, and the AktG, the German Securities Trading Act (Wertpapierhandelsgesetz), the German Securities Purchase and Take Over Act (Wertpapiererwerbs- und Übernahmegesetz), the Stock Exchange Admission Regulation, and the German Commercial Code (Handelsgesetzbuch). In addition to these mandatory rules, the GCGC contains recommendations for generally accepted best practice standards for corporate governance. Pursuant to the German Stock Corporation Act, the management, and the supervisory boards of publicly listed companies like Evotec SE must publish and at all times make available to shareholders, an annual declaration that either states that company has complied with all of the recommendations of the Code or that lists the recommendations that the company has not complied with and the reasons for the deviation. Evotec has published its deviations from the Code in an official declaration on its website.
The significant differences between the corporate governance practices that we follow and those set forth in the Nasdaq Stock Market Rules applicable to domestic issuers are:
Board Structure
Nasdaq Listing Rule 5605 implies a unitary board of directors and requires mandatory independence for a majority of the members affirmatively determined via specific tests of independence. Our corporate governance structure consists of a two-tiered system consisting of a Management Board and a Supervisory Board with a clear separation of management and control and with no individuals being a member of both boards. The Management Board is responsible for managing and representing the company in its dealings with third parties, while the Supervisory Board appoints or dismisses and oversees the members of the Management Board. German law prohibits the Supervisory Board from making operational management decisions. Currently, all six of our Supervisory Board members are considered independent within the meaning of the Code. As permitted by the listing requirements of Nasdaq, we have opted out of complying with Nasdaq Listing Rule 5605(b)(2), which requires independent directors to hold regularly scheduled meetings at which only independent directors are present as this is not a requirement of our home country rules.
Audit Committee
Nasdaq Listing Rule 5605(c) requires companies to have an audit committee with a written charter covering certain specific requirements of the committee, consisting of at least three members, all members are to be independent unless specific circumstances are satisfied, members must have general financial literacy, and one member must have the special knowledge and experience of the application of accounting principles and internal control procedures demonstrable of a high level of financial sophistication. By contrast, German law does not require a separate charter for an audit committee, nor does it require that all members of the audit committee be independent or financially literate. Furthermore, German law requires only that one audit committee member has specialist knowledge in the areas of accounting and internal control processes and another member has specialist expertise in the field of auditing. Though not required by home country rules, we have adopted Nasdaq standards and currently maintain an audit committee of a majority independent members, as directed by a written charter, whom we believe all of which are financially literate and one of which is a financial expert pursuant to Item 407(d)(5) of Regulation S-K.
Compensation Committee
In lieu of a Compensation Committee required pursuant to Nasdaq Listing Rule 5605(d), we follow home country practices and rely on the Supervisory Board to collectively determine the compensation of the CEO and all other members of the Management Board based on recommendation from the Remuneration and Compensation Committee. Pursuant to German law and in accordance with the requirements of our Articles of Association, the Supervisory Board’s compensation and nominations are determined by a Remuneration and Nomination Committee.
132
Meeting of Shareholders (Proxy Solicitation and Quorum).
Proxy Solicitation
Nasdaq Listing Rule 5620(b) requires companies to solicit proxies and provide proxy statements for all meetings of shareholders and to furnish such proxy solicitation(s) to Nasdaq. We do not follow Nasdaq requirements regarding the provision of proxy statements for general meetings of shareholders and rely on home country practice. Under German law, shareholders have the right to exercise their voting rights in the shareholders’ meeting through proxies appointed by them in writing. The proxies appointed by the company are obligated to vote only in accordance with the instructions of the represented shareholder.
Shareholder Quorum
Nasdaq Listing Rule 5620(c) requires an issuer to provide in its bylaws for a generally applicable quorum, and that such quorum may not be less than one-third of the outstanding voting shares. We do not follow the Nasdaq quorum requirements applicable to meetings of shareholders and rely on home country practice. German law does not require a specific quorum for the general meeting and such requirement is not stipulated in our articles of association.
Shareholder Approval of Securities Issuances
Nasdaq Listing Rule 5635 requires companies to obtain shareholder approval before undertaking certain transactions (such as, acquisitions which results in the issuance of 20% or more of outstanding share capital or voting power, change of control transactions, establishing or materially amending an equity compensation arrangement, and entering into a transaction other than a public offering involving the sale, issuance or potential issuance of shares (or securities convertible into or exercisable for shares) equal to 20% or more of outstanding share capital or 20% or more of the voting power outstanding before the issuance for less than the greater of book or market value of the stock). Consistent with the AktG, approval by the shareholders’ meeting is generally required for the issuance of any shares as well as any securities granting the respective holder the right to acquire shares (including options and convertibles).
Code of Conduct
Nasdaq Listing Rule 5610 requires companies to adopt one or more codes of conduct applicable to all directors, officers, and employees. Although there is no requirement under German law for a company to have a code of conduct, we nevertheless have one in place applying to board members and employees alike.
Item 16H. Mine Safety Disclosure.
Not applicable.
Item 16I. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections.
Not applicable.
Item 16J. Insider trading policies.
Our insider trading policy, as contemplated by Item 16J. of Form 20-F, is included as and exhibit to this annual report.
133
Item 16K. Cybersecurity.
Risk management and strategy
The cyber risk management process is an essential process within the information security management system (ISMS) of Evotec. The ISMS is a framework of policies and controls that manage information security and risk systematically and across the Company and is aligned with the baselines of ISO 27001, an international framework for information security. Information security risk management is incorporated into Evotec’s enterprise risk management system alongside other Company risks, all of which are overseen by the Company’s Supervisory Board. Cybersecurity risks are identified and evaluated by the Infosec team, reviewed, and approved by the management board and reported on to the Supervisory Board as part of the annual management review of company risks.
As previously disclosed, on April 6, 2023, Evotec was the victim of a ransomware incident that impacted our operations. The incident resulted in loss of sales and increased operating expenses related to response and recovery. The incident materially affected the Company, including our business strategy, results of operations, and financial condition. We expect to continue to incur costs resulting from the incident as we set up a new IT environment and incur other recovery costs. There is no guarantee that the risks from that incident or any future cybersecurity incident will not materially adversely affect Evotec in the future. For additional information about Evotec’s cybersecurity risks and the incident experienced in 2023, see Item 3 and Item 5 of this report. The Company is currently in the process of implementing a new and more secure IT environment, which includes the engagement of third parties to consult on recommended security solutions and IT components. The restructuring process remains a constant and continuous priority for the company, and we currently expect the implementation to be finally completed by mid-2025. The cyber incident has ultimately led to cybersecurity being given an even higher strategic and operational importance and greater financial resources.
In addition to implementing a new and secure IT environment, Evotec has processes in place to identify, analyze, and evaluate risks from cybersecurity threats.
Risk assessments are performed at least annually, focusing on the probability and potential impact of cybersecurity risks. Interim risk assessments are performed on a continual basis as needed, including but not limited to:
· |
when new / emerging threats are identified; |
· |
when changes to existing IT systems are introduced; |
· |
within the specification of requirements for the acquisition, development, integration and deployment of new IT applications or appointment of new IT service suppliers (e.g., software as a service); |
· |
the occurrence of a cybersecurity incident; and |
· |
after the analysis of vulnerability assessment results, penetration test results and audits. |
The Company has established a cybersecurity incident response process for responding to cybersecurity incidents with defined roles and responsibilities that facilitate coordination between the Chief Information Security Officer (“CISO”) and the IT, compliance, and business departments. The incident response process describes how to prepare for, detect, respond to, and recover from cybersecurity incidents, including processes to identify, assess the severity of, mitigate, and remediate the incident, as well as to comply with applicable legal and reporting obligations.
External consultants are often engaged to assist with IT projects, conduct risk analyses on behalf of the Company, or otherwise support the information security team. The Company also engages third parties to audit Evotec’s risk assessment process, in addition to the internal audits that we conduct.
We outsource elements of our information technology including infrastructure, platform, and software services, and as a result, several third-party vendors may or could have access to confidential information. Risks arising from cooperation with service providers are considered an integral part of the supplier assessment process. If the third party is determined to be of high risk, the Company will decline engagement.
134
Governance
The Security Board, comprised of members of management, the SVP Head of Global Information Security acting as the CISO (an interim Head of Global Information Security was engaged till May 2024) and the EVP Global Head of Information Technology & Data, is the security committee which discusses, decides, and addresses risks as part of the IT environment reconstruction project. The Security Board was launched due to the cyberattack in 2023. In 2024 the Security Board’s scope will be further expanded to cover all cybersecurity risks and related projects.
The Company currently employs a CISO who runs the ISMS, and coordinates with internal and external stakeholders regarding the Company’s information security. (The position of the CISO was managed by an Interim CISO between May 2023 and May 2024). The CISO informs the members of the Management Board about cyber risks and current developments. Depending on the severity of a particular incident, it is the responsibility of the CISO to notify members of senior management. This includes status information about implementation of measures for prevention, detection, mitigation, and remediation of cyber security incidents. The Management Board reports on cybersecurity risks to the Supervisory Board on an annual basis or as necessary. Material matters, including material cybersecurity incidents, are communicated to the Supervisory Board by the Management Board.
Both the current CISO, employed since May 2024, and the interim CISO have more than 10 years of professional experience in cyber and information security, including information risk management.
135
PART III
Item 17. Financial Statements.
Not applicable.
Item 18. Financial Statements.
See pages F-1 through F-79 of this Annual Report on Form 20-F.
Item 19. Exhibits.
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2.1 |
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10.1* |
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15.1* |
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Consent of Independent Registered Public Accounting Firm BDO. |
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101* |
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Inline XBRL Instance Document-the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document. |
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Inline XBRL Calculation Linkbase Document. |
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101* |
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Inline XBRL Definition Linkbase Document. |
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101* |
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Inline XBRL Labels Linkbase Document. |
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101* |
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Inline XBRL Presentation Linkbase Document. |
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104* |
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The cover page for the Company’s Annual Report on Form 20-F for the year ended December 31, 2021, has been formatted in Inline XBRL |
*Filed herewith.
† |
Certain information has been excluded from the exhibit because it both (i) is not material and (ii) would likely cause competitive harm to the Company if publicly disclosed. |
137
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.
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Evotec SE |
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By: |
/s/ Christian Wojczewski |
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Christian Wojczweski, CEO |
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/s/ Laetitia Rouxel |
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Laetitia Rouxel, CFO |
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Date: |
August 14, 2024 |
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138
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Audited Consolidated Financial Statements |
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Page |
Report of Independent Registered Public Accounting Firm (BDO AG Wirtschaftsprüfungsgesellschaft; Frankfurt am Main, Germany; PCAOB ID: 1010). |
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F-2 |
Consolidated Income Statements for the Fiscal Years Ended December 31, 2023, 2022 and 2021 |
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F-7 |
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F-8 |
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Consolidated Statements of Financial Position as of December 31, 2023 and 2022 |
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F-9 |
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F-11 |
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Consolidated Statements of Cash Flows for the Fiscal Years Ended December 31, 2023, 2022 and 2021 |
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F-13 |
F-1
Report of Independent Registered Public Accounting Firm
Shareholders and Supervisory Board
Evotec SE
Hamburg, Germany
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated statements of financial position of Evotec SE (the “Company”) as of December 31, 2023 and 2022, the related consolidated income statements and statements of comprehensive income, changes in stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2023, and the related notes (collectively referred to as the consolidated financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company at December 31, 2023 and 2022, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2023, in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board (IFRS).
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the Company's internal control over financial reporting as of December 31, 2023, based on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”) and our report dated August 12, 2024 expressed an adverse opinion thereon.
Basis for Opinion
These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s consolidated financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud.
Our audits included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the consolidated financial statements that were communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the consolidated financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion on the consolidated financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical audit matters or on the accounts or disclosures to which they relate.
F-2
Recoverability of goodwill
As described in Note (9) to the consolidated financial statements, goodwill amounted to € 275.6 million (12.3 % of the consolidated total assets or 24.7 % of the consolidated equity) as at December 31, 2023. Cash-generating units with allocated goodwill are subjected to impairment testing by the Company at least once a year and additionally if there are indications of impairment. The valuation is carried out using a discounted cash flow method. If the carrying amount of a cash-generating unit is higher than its recoverable amount, an impairment loss is recognized in the amount of the difference. For the year ended December 31, 2023, no impairment of goodwill was recognized.
We identified the determination of the recoverability of goodwill as a critical audit matter. The impairment test for goodwill is complex and requires judgment as inherent uncertainty is involved in management’s valuation model. The primary estimates involving those judgments are future cash flows with main growth assumptions for revenues and gross margin and the discount rates used, including growth rates for the terminal value. Auditing these estimates and related assumptions involved especially challenging and subjective auditor judgment due to the nature and extent of audit evidence and effort required to address these matters, including the extent of specialized skill or knowledge needed.
The primary procedures we performed to address this critical audit matter included:
| ● | Evaluating the reasonableness of certain of management’s growth assumptions with respect to revenue and gross margin as well as discount rates used in the discounted cash flow model through: (i) comparing revenue and gross margin projections to prior period forecasts and historical periods as well as to current industry-specific market expectations, (ii) performing a sensitivity analysis on changes in discount rates and terminal value growth assumptions used in management’s valuation model, and (iii) evaluating whether the forecasts were consistent with evidence obtained in other areas of the audit. |
| ● | Utilizing personnel with specialized knowledge and skill of valuation techniques to assist in determining the appropriateness of the discounted cash flow model used and evaluating the reasonableness of the discount rates used. |
Revenue recognition from Complex contracts with customers
The Company’s revenues amounted to € 781.4 million in 2023. As described in Notes (2) and (4) to the consolidated financial statements, a significant portion of the Evotec Group's revenues is attributable to complex contracts with customers that contain multiple performance obligations, some of which require revenue recognition over time. Some contracts contain variable transaction prices, which are dependent on the achievement of a specific success in clinical development. In case of performance obligations recognized over time, revenue is mainly measured on the basis of progress towards complete fulfillment. The progress of completion is generally measured on an input basis. To determine the input-based progress, the Company primarily uses the ratio between the number of full-time equivalents (FTEs) deployed and the total planned FTEs per performance obligation.
We identified the revenue recognition from complex contracts with customers as a critical audit matter, because significant management judgement is involved. The audit procedures addressing the identification of separate performance obligations, the determination and allocation of the transaction price, and the assessment of whether the performance obligation is recognized over time or at a point in time as well as the estimation of progress require especially challenging and subjective auditor judgment.
The primary procedures we performed to address this critical audit matter included:
| ● | Evaluating the reasonableness of revenue recognized for a risk-oriented selection and a sample of recognized revenue, through: (i) assessing the identification of separate performance obligations, (ii) evaluating the determination and allocation of the transaction price, (iii) obtaining appropriate evidence for variable components of the transaction price that achievement of the milestones is highly probable, and (iv) evaluating the appropriateness of the over-time revenue recognition vs. point in time for complex contracts with customers. |
| ● | Assessing the reasonableness of over-time revenue recognized by the Company through: (i) assessing the progress of the respective contracts by evaluating the planned and actual inputs for a sample of revenue contracts and comparing the underlying inputs to the actual performance during the year, and (ii) assessing management’s budgeting process by performing a multi-year assessment of the budgets versus actual performance of selected projects during the period. |
F-3
Valuation of unlisted equity Investments
As described in Note (15) to the consolidated financial statements, unlisted equity investments amounted to € 46.7 million at December 31, 2023. The investments in early-stage companies are mainly of a strategic nature and are made for the purpose of promoting new business models and, in particular, the development of products and/or technology platforms in pharmaceutical research. These investments are accounted for as financial assets at fair value through profit or loss unless the Company makes use of the option to measure them at fair value through other comprehensive income upon acquisition. Since there are no observable stock market prices available, the fair value is derived from external financing rounds or capital transactions with new investors, or in the absence of these, the Company uses qualitative factors such as scientific progress and assesses the liquidity situation to assist in determining the valuation. If the development is promising, the acquisition costs are assumed to be the best possible estimate of the fair value. If the investment has a possible going concern risk and there are no other promising factors, the Company assumes the carrying amount of the entity's net asset value as the best estimate of the fair value.
We identified the determination of the fair value of unlisted equity investments as a critical audit matter due to significant management judgment as it is not based on observable market data. Auditing these estimates and related assumptions involved especially challenging and subjective auditor judgment due to the nature and extent of audit evidence which is mostly based on unobservable inputs and qualitative factors.
The primary procedures we performed to address this critical audit matter included:
| ● | Evaluating the reasonableness of the valuation of unlisted equity investments through: (i) assessing whether the valuation method applied by the executive directors is consistent with the requirements of IFRS 13 for determining fair value, (ii) assessing possible scientific indications for a change in the fair value and critically scrutinizing the assumptions made in this context, and (iii) reviewing information provided by the investments and publicly available information for possible indicators of a change in fair value. |
| ● | Utilizing personnel with specialized knowledge and skill of valuation techniques to assist in determining the appropriateness of the method used. |
/s/ BDO AG, Wirtschaftsprüfungsgesellschaft
We have served as the Company’s auditor since 2021.
Berlin, Germany
August 12, 2024
F-4
Report of Independent Registered Public Accounting Firm
Shareholders and Supervisory Board
Hamburg, Germany
Opinion on Internal Control over Financial Reporting
We have audited Evotec SE’s (the “Company’s”) internal control over financial reporting as of December 31, 2023, based on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (the “COSO criteria”). In our opinion, the Company did not maintain, in all material respects, effective internal control over financial reporting as of December 31, 2023, based on the COSO criteria.
We do not express an opinion or any other form of assurance on management’s statements referring to any corrective actions taken by the Company after the date of management’s assessment.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the consolidated statements of financial position of Evotec SE as of December 31, 2023 and 2022, the related consolidated income statements and statements of comprehensive income, changes in stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2023, and the related notes (collectively referred to as “the financial statements”) and our report dated August 12, 2024 expressed an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Item 15. Controls and Procedures. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit of internal control over financial reporting in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the company’s annual or interim financial statements will not be prevented or detected on a timely basis. As of December 31, 2023 Evotec SE did not maintain appropriately designed controls impacting the control environment, risk assessment procedures, and effective monitoring controls to prevent or detect material misstatements to the consolidated financial statements. These deficiencies were attributed to: (a) ineffective design and operation of controls pertaining to user access rights over systems that are critical to the Company’s system of financial reporting; and (b) a lack of consistent application of business processes and procedures. These deficiencies constituted material weaknesses in the Company’s internal controls over financial reporting in both design and operation. The material weaknesses identified related to (i) lack of design and maintenance of effective controls over revenue recognition; review of manual journal entries; appropriate foreign exchange rates used in the accounting system; triggering events and valuation of equity instruments and associated convertible notes receivables; completeness and existence of fixed assets, accuracy of disclosures and segment reporting (ii) lack of design, maintenance, and operation of effective controls over IT system access management leading to improper segregation of duties, improper security of the active directory and improper user access rights critical to the Company’s system of financial reporting. Therefore, it is possible that Evotec's business process and controls that rely on the accuracy and completeness of data generated by the scoped systems could be adversely affected due to the considerations listed above.
These material weaknesses were considered in determining the nature, timing, and extent of audit tests applied in our audit of the 2023 financial statements, and this report does not affect our report dated August 12, 2024 on those financial statements.
F-5
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
/s/ BDO AG, Wirtschaftsprüfungsgesellschaft
Berlin, Germany
August 12, 2024
F-6
Evotec Group -
Consolidated income statement for the years ended December 31, 2023, 2022, and 2021.
|
|
footnote |
|
|
|
|
|
|
in k€ except share and per share data |
|
reference |
|
Year ended December 31, 2023 |
|
Year ended December 31, 2022 |
|
Year ended December 31, 2021 |
Revenue |
|
4 |
|
781,426 |
|
751,448 |
|
618,034 |
Cost of Revenue |
|
|
|
(606,375) |
|
(577,383) |
|
(466,491) |
Gross profit |
|
|
|
175,051 |
|
174,065 |
|
151,543 |
|
|
|
|
|
|
|
|
|
Operating income (expenses) |
|
|
|
|
|
|
|
|
Research and development |
|
5 |
|
(68,529) |
|
(76,642) |
|
(72,200) |
Selling, general and administrative |
|
5 |
|
(169,610) |
|
(156,190) |
|
(105,445) |
Other operating income |
|
5 |
|
64,793 |
|
81,582 |
|
73,472 |
Other operating expenses |
|
5 |
|
(44,202) |
|
(1,965) |
|
(5,691) |
Impairments |
|
9 |
|
(5,011) |
|
— |
|
(683) |
Total operating income (expenses) |
|
|
|
(222,558) |
|
(153,215) |
|
(110,547) |
Operating income (loss) |
|
|
|
(47,507) |
|
20,850 |
|
40,996 |
|
|
|
|
|
|
|
|
|
Non-operating income (expense) |
|
|
|
|
|
|
|
|
Gain (loss) on investment in financial instruments reevaluation |
|
10 |
|
(9,143) |
|
(172,159) |
|
211,754 |
Share of profit (loss) and reevaluation of at-equity investments |
|
11 |
|
(20,752) |
|
(15,098) |
|
(16,570) |
Other financial income |
|
10 |
|
9,263 |
|
8,336 |
|
2,272 |
Other financial expense |
|
10 |
|
(11,739) |
|
(13,150) |
|
(9,254) |
Other non-operating income (expense) |
|
10 |
|
(714) |
|
12,357 |
|
7,782 |
Gain from Bargain Purchase |
|
|
|
— |
|
4,908 |
|
— |
Net Income (loss) before taxes |
|
|
|
(80,593) |
|
(153,957) |
|
236,980 |
Income taxes |
|
6 |
|
(3,320) |
|
(21,698) |
|
(21,470) |
Net income (loss) |
|
|
|
(83,913) |
|
(175,655) |
|
215,510 |
|
|
|
|
|
|
|
|
|
Weighted average shares outstanding |
|
|
|
176,916,663 |
|
176,674,341 |
|
166,405,926 |
Net income per share (basic) |
|
|
|
(0.47) |
|
(0.99) |
|
1.30 |
Net income per share (diluted) |
|
|
|
(0.47) |
|
(0.99) |
|
1.30 |
1 |
In the annual report 2023 the positions foreign currency exchange gain (loss), net, other non-operating income and other non-operating expense are aggregated in order to provide a clearer presentation of the underlying financial performance. The previous year figures have been adjusted accordingly. |
See accompanying notes to consolidated financial statements.
F-7
Evotec SE and Subsidiaries -
Consolidated statement of comprehensive income for the years ended December 31, 2023, 2022, and 2021.
|
|
footnote |
|
Year ended |
|
Year ended |
|
Year ended |
in k€ |
|
reference |
|
December 31, 2023 |
|
December 31, 2022 |
|
December 31, 2021 |
Net income (loss) |
|
|
|
(83,913) |
|
(175,655) |
|
215,510 |
|
|
|
|
|
|
|
|
|
Accumulated other comprehensive income |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Items which are not re-classified to the income statement |
|
|
|
|
|
|
|
|
Remeasurement of defined benefit obligation |
|
11 |
|
(51) |
|
1,420 |
|
664 |
Revaluation of equity investments |
|
10 |
|
(1,080) |
|
(11,729) |
|
— |
Taxes |
|
6 |
|
13 |
|
(357) |
|
7 |
|
|
|
|
|
|
|
|
|
Items which have to be re-classified to the income statement at a later date |
|
|
|
|
|
|
|
|
Foreign currency translation |
|
|
|
(1,760) |
|
(598) |
|
26,091 |
Revaluation and disposal of other short-term investments measured at fair value through other comprehensive income |
|
|
|
10,056 |
|
(13,500) |
|
(1,878) |
Taxes |
|
|
|
(419) |
|
— |
|
— |
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss) |
|
|
|
6,759 |
|
(24,764) |
|
24,884 |
Total comprehensive income (loss) |
|
|
|
(77,153) |
|
(200,419) |
|
240,394 |
See accompanying notes to consolidated financial statements.
F-8
Evotec SE and Subsidiaries -
Consolidated statement of financial position as of December 31, 2023 and December 31, 2022
|
|
|
|
|
|
|
in k€ |
|
footnote reference |
|
as of December 31, 2023 |
|
as of December 31, 2022 |
Assets |
|
|
|
|
|
|
Current assets: |
|
|
|
|
|
|
Cash and cash equivalents |
|
10 |
|
510,909 |
|
415,155 |
Investments |
|
10 |
|
93,203 |
|
303,334 |
Trade and other receivables1 |
|
7 |
|
98,396 |
|
171,798 |
Contract assets |
|
4 |
|
25,000 |
|
30,516 |
Inventories |
|
7 |
|
30,890 |
|
29,825 |
Current tax assets |
|
6 |
|
80,659 |
|
54,422 |
Other current financial assets including derivatives |
|
10 |
|
12,759 |
|
11,494 |
Prepaid expenses and other current assets |
|
7 |
|
51,345 |
|
57,126 |
Total current assets |
|
|
|
903,162 |
|
1,073,671 |
|
|
|
|
|
|
|
Non-current assets: |
|
|
|
|
|
|
Non-current investments and other non-current financial assets² |
|
10 |
|
139,023 |
|
134,289 |
Investments in associates and Joint ventures |
|
11 |
|
3,071 |
|
16,043 |
Property, plant and equipment |
|
8 |
|
806,563 |
|
650,201 |
Intangible assets and Goodwill |
|
9 |
|
291,089 |
|
298,638 |
Deferred tax assets |
|
6 |
|
14,330 |
|
10,327 |
Non-current tax assets |
|
6 |
|
94,393 |
|
70,293 |
Other non-current assets |
|
|
|
837 |
|
3,785 |
Total non-current assets |
|
|
|
1,349,306 |
|
1,183,576 |
Total assets |
|
|
|
2,252,468 |
|
2,257,247 |
¹ |
In annual report 2023, the positions trade accounts receivables and accounts receivables from associated companies and other long-term investments are aggregated to provide a clearer picture of the financial position. The previous year figures have been adjusted accordingly. |
2 |
In the annual report 2023 the positions long-term investments and other non-current financial assets are aggregated in order to provide a clearer picture of the financial position. The previous year figures have been adjusted accordingly. |
F-9
|
|
footnote |
|
|
|
|
in k€ |
|
reference |
|
as of December 31, 2023 |
|
as of December 31, 2022 |
LIABILITIES AND STOCKHOLDERS’ EQUITY |
|
|
|
|
|
|
Current liabilities: |
|
|
|
|
|
|
Current financial liabilities3 |
|
10, 14 |
|
149,096 |
|
23,468 |
Trade and other payables |
|
7 |
|
134,319 |
|
97,277 |
Contract liabilities |
|
4 |
|
97,587 |
|
122,922 |
Deferred income |
|
|
|
10,268 |
|
13,748 |
Provisions |
|
13 |
|
45,165 |
|
54,410 |
Current income tax liabilities |
|
|
|
5,565 |
|
8,987 |
Other current liabilities |
|
7 |
|
22,572 |
|
16,894 |
Total current liabilities |
|
|
|
464,573 |
|
337,706 |
|
|
|
|
|
|
|
Non-current liabilities: |
|
|
|
|
|
|
Non-current financial liabilities⁴ |
|
10, 14 |
|
477,112 |
|
490,292 |
Deferred tax liabilities |
|
6 |
|
18,137 |
|
18,524 |
Provisions |
|
13 |
|
16,063 |
|
16,427 |
Contract liabilities |
|
4 |
|
155,287 |
|
206,136 |
Other non-current liabilities |
|
|
|
1,387 |
|
977 |
Total non-current liabilities |
|
|
|
667,987 |
|
732,357 |
|
|
|
|
|
|
|
Stockholders’ equity: |
|
|
|
|
|
|
Share capital |
|
16 |
|
177,186 |
|
176,953 |
Additional paid in capital |
|
|
|
1,449,654 |
|
1,440,010 |
Retained Earnings |
|
|
|
(476,290) |
|
(392,377) |
Accumulated other comprehensive income |
|
|
|
(30,643) |
|
(37,402) |
Total stockholders’ equity |
|
|
|
1,119,908 |
|
1,187,184 |
Total liabilities and stockholders’ equity |
|
|
|
2,252,468 |
|
2,257,247 |
3 In the annual report 2023, the positions current loan liabilities, current portion of lease obligations and other current financial liabilities are aggregated in order to provide a clearer picture of the financial position. The previous year figures have been adjusted accordingly.
⁴ In the annual report 2023, the positions non-current loan liabilities and long-term lease obligations are aggregated in order to provide a clearer picture of the financial position. The previous year figures have been adjusted accordingly.
See accompanying notes to consolidated financial statements.
F-10
Evotec SE and Subsidiaries -
Consolidated statement of changes in stockholders’ equity for the years ended December 31, 2023, 2022, and 2021.
|
|
|
|
|
|
|
|
|
|
Income and expense |
|
|
|
|
||
|
|
|
|
|
|
|
|
|
|
recognized in other |
|
|
|
|
||
|
|
|
|
Share capital |
|
|
|
comprehensive income |
|
|
|
|
||||
|
|
|
|
|
|
|
|
Additional |
|
Foreign |
|
|
|
|
|
Total |
|
|
footnote |
|
|
|
|
|
paid-in |
|
currency |
|
Revaluation |
|
Retained |
|
stockholders’ |
in k€ except share data |
|
reference |
|
Shares |
|
Amount |
|
capital |
|
translation |
|
reserve |
|
Earnings |
|
equity |
Balance at January 1, 2021 |
|
|
|
163,914,741 |
|
163,915 |
|
1,030,702 |
|
(41,782) |
|
4,260 |
|
(432,639) |
|
724,456 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital increase |
|
|
|
11,497,500 |
|
11,497 |
|
391,629 |
|
— |
|
— |
|
— |
|
403,126 |
Exercised stock options |
|
12 |
|
1,195,954 |
|
1,196 |
|
|
|
— |
|
— |
|
— |
|
1,196 |
Stock option plan |
|
12 |
|
— |
|
— |
|
7,805 |
|
— |
|
— |
|
— |
|
7,805 |
Transaction costs |
|
|
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Deferred and current tax on future deductible expenses |
|
|
|
— |
|
— |
|
— |
|
— |
|
— |
|
708 |
|
708 |
Other comprehensive income |
|
|
|
— |
|
— |
|
— |
|
26,091 |
|
(1,207) |
|
— |
|
24,884 |
Net income (loss) for the period |
|
|
|
— |
|
— |
|
— |
|
— |
|
— |
|
215,510 |
|
215,510 |
Total comprehensive income (loss) |
|
|
|
— |
|
— |
|
— |
|
26,091 |
|
(1,207) |
|
215,510 |
|
240,394 |
Balance at December 31, 2021 |
|
|
|
176,608,195 |
|
176,608 |
|
1,430,136 |
|
(15,691) |
|
3,053 |
|
(216,421) |
|
1,377,685 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital increase |
|
|
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Exercised stock options |
|
12 |
|
344,458 |
|
345 |
|
— |
|
— |
|
— |
|
— |
|
345 |
Stock option plan |
|
12 |
|
— |
|
— |
|
9,919 |
|
— |
|
— |
|
— |
|
9,919 |
Transaction costs |
|
|
|
— |
|
— |
|
(45) |
|
— |
|
— |
|
— |
|
(45) |
Deferred and current tax on future deductible expenses |
|
|
|
— |
|
— |
|
— |
|
— |
|
— |
|
(301) |
|
(301) |
Other comprehensive income |
|
|
|
— |
|
— |
|
— |
|
(598) |
|
(24,166) |
|
— |
|
(24,764) |
Net income for the period |
|
|
|
— |
|
— |
|
— |
|
— |
|
— |
|
(175,655) |
|
(175,655) |
Total comprehensive income (loss) |
|
|
|
— |
|
— |
|
— |
|
(598) |
|
(24,166) |
|
(175,655) |
|
(200,419) |
Balance at December 31, 2022 |
|
|
|
176,952,653 |
|
176,953 |
|
1,440,010 |
|
(16,289) |
|
(21,113) |
|
(392,377) |
|
1,187,184 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital increase |
|
|
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Exercised stock options |
|
12 |
|
233,083 |
|
233 |
|
— |
|
— |
|
— |
|
— |
|
233 |
Stock option plan |
|
12 |
|
— |
|
— |
|
9,630 |
|
— |
|
— |
|
— |
|
9,630 |
Transaction costs |
|
|
|
— |
|
— |
|
14 |
|
— |
|
— |
|
— |
|
14 |
Deferred and current tax on future deductible expenses |
|
|
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Other comprehensive income |
|
|
|
— |
|
— |
|
— |
|
(1,760) |
|
8,519 |
|
— |
|
6,759 |
Net income (loss) for the period |
|
|
|
— |
|
— |
|
— |
|
— |
|
— |
|
(83,913) |
|
(83,913) |
Total comprehensive income |
|
|
|
— |
|
— |
|
— |
|
(1,760) |
|
8,519 |
|
(83,913) |
|
(77,153) |
Balance at December 31, 2023 |
|
|
|
177,185,736 |
|
177,186 |
|
1,449,654 |
|
(18,049) |
|
(12,594) |
|
(476,290) |
|
1,119,908 |
1) |
Includes the impacts of the IFRIC final agenda decisions of April 2021 of benefits to periods of service, as described in Note 2 “First time adoption of new accounting standards in the financial year 2021” |
See accompanying notes to consolidated financial statements.
F-11
Evotec SE and Subsidiaries -
Consolidated statement of cash flows for the years ended December 31, 2023, 2022, and 2021.
|
|
footnote |
|
|
|
|
|
|
in k€ |
|
reference |
|
2023 |
|
2022 |
|
2021 |
Cash flows from operating activities |
|
|
|
|
|
|
|
|
Net income (Loss) |
|
|
|
(83,913) |
|
(175,655) |
|
215,510 |
Income tax expense |
|
6 |
|
3,320 |
|
21,698 |
|
21,470 |
Depreciation and amortization |
|
8.9 |
|
92,979 |
|
83,196 |
|
70,399 |
Impairment of intangible assets |
|
9 |
|
5,011 |
|
— |
|
683 |
Equity settled share based payment transaction |
|
12 |
|
9,630 |
|
9,919 |
|
7,805 |
Financial income and expenses |
|
10 |
|
2,475 |
|
13,536 |
|
14,363 |
Share of loss (profit) and reevaluation of at-equity investments |
|
11 |
|
20,752 |
|
15,098 |
|
28,433 |
Gain (loss) on investment in financial instruments reevaluation |
|
10 |
|
9,143 |
|
172,159 |
|
(223,791) |
Transactions costs and income related to acquisitions |
|
|
|
— |
|
(4,908) |
|
— |
Other non-cash items |
|
|
|
(114) |
|
(16,017) |
|
4,384 |
Changes in net working capital |
|
7 |
|
(9,944) |
|
105,285 |
|
(18,686) |
Income taxes paid |
|
6 |
|
(12,902) |
|
(18,500) |
|
6,028 |
Net cash from operating activities |
|
|
|
36,439 |
|
205,811 |
|
126,599 |
|
|
|
|
|
|
|
|
|
Cash flows from investing activities |
|
|
|
|
|
|
|
|
Interest received¹ |
|
|
|
10,365 |
|
3,026 |
|
1,061 |
Acquisition of property, plant and equipment |
|
8 |
|
(213,321) |
|
(181,354) |
|
(118,943) |
Proceeds from sale of property, plant and equipment |
|
8 |
|
530 |
|
— |
|
— |
Acquisition and / or capitalization of intangible assets and development |
|
9 |
|
(2,677) |
|
— |
|
|
Acquisition of subsidiaries net of cash acquired |
|
|
|
2,088 |
|
(20,859) |
|
(410) |
Acquisition of investments in associated companies, other long-term investments and convertibles |
|
10, 11 |
|
(23,644) |
|
(62,959) |
|
(28,056) |
Proceeds from divestment/sale of investments in associated companies, other long-term investments and convertibles |
|
10, 11 |
|
1,396 |
|
— |
|
— |
Acquisition of short-term investments |
|
10 |
|
(48,391) |
|
(355,817) |
|
(123,696) |
Proceeds from sale of short-term investments |
|
10 |
|
260,363 |
|
205,166 |
|
27,250 |
Net cash used in investing activities |
|
|
|
(13,291) |
|
(412,797) |
|
(242,794) |
|
|
|
|
|
|
|
|
|
Cash flows from financing activities |
|
|
|
|
|
|
|
|
Interest paid¹ |
|
|
|
(12,853) |
|
(5,731) |
|
(5,423) |
Proceeds from capital increase |
|
|
|
— |
|
355 |
|
403,126 |
Proceeds from issue of loans and borrowings |
|
10 |
|
219,923 |
|
— |
|
30,791 |
Proceeds from issue of treasury shares |
|
|
|
219 |
|
344 |
|
1,196 |
Repayments of loans and borrowings |
|
10 |
|
(112,880) |
|
(34,067) |
|
(16,018) |
Payment of lease liabilities |
|
10 |
|
(22,446) |
|
(19,046) |
|
(20,665) |
Net cash from financing activities |
|
|
|
71,963 |
|
(58,145) |
|
393,007 |
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash equivalents |
|
|
|
95,110 |
|
(265,131) |
|
276,812 |
Cash and cash equivalents at January 1 |
|
|
|
415,155 |
|
699,326 |
|
422,580 |
Effect of movements in exchange rates on cash held |
|
|
|
644 |
|
(19,040) |
|
(66) |
Cash and cash equivalents at December 31* |
|
|
|
510,909 |
|
415,155 |
|
699,326 |
| 1 | Interest received and interest paid have been reallocated from the operating cash flow to the investing cash flow and the financing cash flow, respectively. Hence, the previous year figures deviate from the figures published in the annual report 2022. The change was made to provide a clearer picture of the financial position. |
*incl.
See accompanying notes to consolidated financial statements.
F-12
Evotec Group
Notes to consolidated financial statements for the financial year 2023
(1) Business description and basis of presentation
€ 11,819k of restricted cash Evotec SE (“Evotec” or the “Company”) is a drug discovery and development company, continuously driving innovative approaches to develop new pharmaceutical products through discovery alliances and development partnerships with leading pharma and biotechnology companies as well as academic institutions, patient advocacy groups and venture capital partners.
Evotec SE, located in Hamburg (Essener Bogen 7, 22419 Hamburg, Germany) is registered in the Commercial Registry of Hamburg with HRB 156381.
The Company was founded on December 8, 1993, and is listed on the Frankfurt Stock Exchange (XETRA) since November 10, 1999, Segment Prime Standard, under the ticker “EVT“ as well as on NASDAQ, New York, USA under the trading symbol “EVO“ since November 8, 2021.
Evotec SE, as the ultimate parent company, prepares its consolidated financial statements in its functional currency, the Euro. All amounts in the notes are stated in thousands of Euros (k€) unless otherwise noted. The Euro is the reporting currency of the Group. Due to rounding, amounts may not add up precisely to the totals provided.
The consolidated financial statements have been prepared in accordance with the IFRS general principles of fair presentation, going concern, accrual basis of accounting, consistency of presentation, materiality, and aggregation. The presentation of the consolidated income statement is based on the internal functions of the Group.
The Management Board prepared the consolidated financial statements for the financial year 2023 on April 22, 2024, and subsequently submitted them to the Supervisory Board for review and approval at the meeting on April 23, 2024. With reference to Section §264 (3) of the German Commercial Code, the subsidiary Evotec International GmbH does not prepare a management report (Section §289 of the German Commercial Code).
(2) Significant accounting policies
The significant accounting policies applied in the preparation of these Consolidated Financial Statements are set out below or in the respective note. These policies have been consistently applied to all the years presented, unless otherwise stated.
- Basis for preparation -
The consolidated financial statements cover the twelve-month periods ended December 31, 2023 and 2022.
In accordance with Regulation No. 1606/2002 of the European Parliament and Council of July 19, 2002 on the application of international accounting standards, Evotec has presented its consolidated financial statements in accordance with IFRS since 2005. The term “IFRS” refers collectively to international accounting and financial reporting standards (IASs and IFRSs) and to interpretations of the interpretations committees (SIC and IFRIC) with mandatory application as of January 1, 2023. The consolidated financial statements of Evotec as of December 31, 2023 have been prepared in compliance with IFRS as issued by the International Accounting Standards Board (IASB) and with IFRS as endorsed by the European Union as of December 31, 2023.
F-13
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Additional requirements of Section §315e (1) of the German Commercial Code (HGB) have been applied accordingly in accordance with the version endorsed at the end of the reporting period.
- Significant accounting judgements and estimates-
The preparation of the Consolidated Financial Statements in accordance with IFRS requires management to make judgements, estimates and assumptions that affect the application of accounting policies, the reported amounts of assets, liabilities, revenues and expenses, the accompanying disclosures, as well as the disclosure of contingent liabilities. These estimates inherently contain a degree of uncertainty. Actual results may differ from these estimates under different assumptions or conditions.
The Group evaluates these accounting judgements and estimates on an ongoing basis and bases the estimates on historical experience, current and expected future outcomes, third-party valuation and various other assumptions that the Group believes are reasonable under the circumstances. Existing circumstances and assumptions about future developments may change due to circumstances beyond the Group’s control and are reflected in the assumptions if and when they occur.
The Group revises significant estimates as relevant and applicable if changes occur in circumstances or if new information or historical data is available and would require Evotec to do so.
The areas where the most significant judgements and estimates are made relate to the following areas:
Judgement:
| ● | Revenue recognition, determination of performance obligation and allocation of consideration as well as determination of advancement for over time performance obligations; |
| ● | Determination of the lease term and more specifically the assessment whether a lease option to extend or cancel a lease in which the Group is a lessee is reasonably certain to be exercised or not; |
| ● | Likelihood of occurrence of provisions, uncertain tax positions and contingent liabilities; |
| ● | Impairment analyses in relation with goodwill and intangible assets are performed annually as well as the determination of whether the carrying value exceeds the recoverable amount whenever a triggering event occurs. These analyses are generally based on estimates of discounted future cash flows; |
| ● | Determination of the fair values of Level 3 financial assets where significant inputs of the fair value measurement are not based on observable market data. |
Estimates:
| ● | Assessment of the recoverable amount of goodwill and intangible assets; |
| ● | Measurement of the recoverability of deferred tax assets; |
| ● | Determination of fair values of acquired identifiable intangible assets as part of a business combination; |
| ● | Determination of budgeted FTE rates in the assessment of percentage of completion in relation with revenue recognition |
F-14
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The potential impact of climate related matters, including legislation which may affect the fair value of financial assets and liabilities in the Consolidated Financial statements has been considered, especially but not limited to deferred tax assets recoverability, useful life of tangibles and intangibles and provisions.
As of December 31, 2023, the Group does not believe that the impact of climate related matters would be material to the Consolidated Financial Statements.
For further discussion of these significant judgements and estimates, reference is made to the respective Accounting Policies and Notes within these Consolidated Financial Statements that relate to the above topics.
- Basis for consolidations -
The Consolidated Financial Statements comprise the financial statements of Evotec SE and all the subsidiaries that the Company controls, i.e. when it is exposed or has rights to variable returns from its involvement with the investee and has the ability to affect those returns through its power over the investee. Generally, there is a presumption that a majority of voting rights results in control. To support this presumption and in cases where the Group has less than a majority of the voting or similar rights of an investee, the Group considers all relevant facts and circumstances in assessing whether it has power over an investee, including the contractual arrangement(s) with the other vote holders of the investee, rights arising from other contractual arrangements and the Group’s voting rights and potential voting rights.
Subsidiaries
Subsidiaries are fully consolidated from the date that control commences until the date that control ceases. Transactions between consolidated companies are eliminated, as well as intragroup profits.
Associates
Associates are all entities over which the Group has significant influence but no control. Significant influence is presumed with a shareholding between 20% and 50% of the voting rights or when the Group has board representation through which it is able to exercise significant influence, such as, but not limited to participating in the financial and operating policy decisions of that entity but does not have the power to exercise control or joint control over those policies. Investments in associates are accounted for using the at-equity method and are initially recognized at cost. Unrealized gains and losses from transactions between the Group and its associates or joint ventures are recognized only to the extent of unrelated investors` interests in the associates.
Joint arrangements
The Group classifies its joint arrangements (i.e., arrangements in which the Group exercises joint control with one or more other parties) either as a joint operation (in which case, the Group recognizes the assets and liabilities of the operation in proportion to its rights and obligations relating to those assets and liabilities) or as a joint venture.
Loss of control
Upon loss of control, the Group derecognizes the assets and liabilities of the subsidiary, any non-controlling interests, and other components of equity (if any) related to the subsidiary. Any surplus or deficit arising from the loss of control is recognized in the Consolidated Income Statement. If the Group retains any interest in the previous subsidiary, such interest is measured at fair value at the date the control is lost. Subsequently, it is accounted for as either an equity accounted investee or as a financial asset depending on the level of influence retained.
F-15
Evotec Group
Notes to consolidated financial statements for the financial year 2023
All intercompany receivables, liabilities and all intercompany revenue, income, expenses and all intragroup profits or losses are eliminated in the consolidation.
The financial statements of all to be consolidated subsidiaries are prepared using the same reporting date as the consolidated financial statements (December 31).
- Foreign currencies -
Foreign currency transaction
The financial statements of all Evotec Group entities are measured using the currency of the primary economic environment in which the entity operates (“the functional currency”). The Euro (EUR) is the functional currency of the Group and the presentation currency of the Consolidated Financial Statements.
Foreign currency transactions are translated into the functional currency using the exchange rates prevailing at the dates of the transactions or the valuation in cases where items are remeasured. Foreign exchange gains and losses resulting from the settlement of such transactions and from the translation at year-end exchange rates of monetary assets and liabilities denominated in foreign currencies are recognized in the income statement.
Foreign operations
The assets and liabilities of foreign operations, including goodwill and fair value adjustments arising on acquisition, are translated to Euro at the exchange rates prevailing at the reporting date. The income and expenses of foreign operations are translated to Euros at the monthly average foreign exchange rate.
Foreign currency differences arising upon translation of foreign operations into Euros are recognized in Other Comprehensive Income and presented as part of currency translation reserves in Shareholders Equity. In the balance sheet these are recognized under retained earnings.
When a foreign operation is disposed of, leading to a loss of control, significant influence or joint control, the cumulative amount in the currency translation differences related to the foreign operation is reclassified to the Consolidated Income Statement as part of the gain or loss on disposal.
- Application of standards; amendments and interpretation-
The following amendments became effective as at January 1, 2023:
| ● | IFRS 17 Insurance Contracts (including Amendments to IFRS 17 issued in June 2020 and Amendment to IFRS 17 - Initial Application of IFRS 17 and IFRS 9—Comparative Information issued in December 2021) |
| ● | Amendments to IAS 8 – Definition of Accounting Estimates |
| ● | Amendments to IAS 1 and IFRS Practice Statement 2 - Disclosure of Accounting Policies |
| ● | Amendments to IAS 12 – Deferred Tax related to Assets and Liabilities arising from a Single Transaction |
| ● | Amendments to IAS 12 - International Tax Reform – Pillar Two Model Rules |
F-16
Evotec Group
Notes to consolidated financial statements for the financial year 2023
None of those amendments had a significant impact on the Company´s consolidated financial statements for the 12 months period ended December 31, 2023.
The following amendments will become effective after January 1, 2024 however may be early adopted:
| ● | Amendments to IFRS 16 - Lease Liability in a Sale and Leaseback Transaction (January 1, 2024) |
| ● | Amendments to IAS 1 - Classification of Liabilities as Current or Non-current (including the amendment to IAS 1 - Classification of Liabilities as Current or Non-current - Deferral of Effective Date issued in July 2020) (January 1, 2024) |
| ● | Amendments to IAS 1 - Non-current Liabilities with Covenants (January 1, 2024) |
| ● | Amendments to IAS 7 and IFRS 7 - Supplier Finance Arrangements (January 1, 2024) |
| ● | Amendments to IAS 21 - Lack of Exchangeability (January 1, 2025) |
| ● | IFRS 18 - Presentation and Disclosures in Financial Statements (issued by IASB on April 9, 2024, effective date January 1, 2027) |
Evotec has not early adopted any new standards, interpretations or amendments that have been issued but are not yet effective in these consolidated financial statements.
None of those amendments are expected to have a significant impact on the Group´s consolidated financial statements.
F-17
Evotec Group
Notes to consolidated financial statements for the financial year 2023
(3) Segment information
EVT Execute and EVT Innovate were identified by the Management Board as reporting segments. EVT Execute includes mainly fee-for-service and FTE-rate arrangements where our customers own the intellectual property, whereas EVT Innovate comprises of internal R&D activities as well as services and partnerships that originate from these R&D activities where we typically own or co-own intellectual property with our strategic partners.
Management does not allocate assets and liabilities to segments. The assessment of the individual operating segments is based on revenues and operating income (loss). Intersegment revenues are valued on an arms-length principle.
The segment information for the financial year 2023 is as follows:
|
|
EVT |
|
EVT |
|
Elimination between |
|
Evotec |
In k€ |
|
Execute |
|
Innovate |
|
the segments |
|
Group |
Revenues |
|
514,542 |
|
266,884 |
|
— |
|
781,426 |
Intersegment revenues |
|
224,196 |
|
— |
|
(224,196) |
|
— |
Cost of revenue |
|
(631,373) |
|
(184,700) |
|
209,698 |
|
(606,375) |
Gross profit |
|
107,365 |
|
82,184 |
|
(14,497) |
|
175,051 |
Operating income and (expenses) |
|
|
|
|
|
|
|
|
Research and development cost |
|
(4,391) |
|
(78,636) |
|
14,497 |
|
(68,529) |
Selling, general and administrative cost |
|
(130,810) |
|
(38,800) |
|
— |
|
(169,610) |
Impairment of intangible assets |
|
(5,011) |
|
— |
|
— |
|
(5,011) |
Other operating income |
|
31,337 |
|
33,456 |
|
— |
|
64,793 |
Other operating expenses |
|
(41,508) |
|
(2,694) |
|
— |
|
(44,202) |
Total operating income and (expenses) |
|
(150,383) |
|
(86,673) |
|
14,497 |
|
(222,558) |
Operating income (loss) |
|
(43,018) |
|
(4,489) |
|
|
|
(47,507) |
The segment information for the financial year 2022 is as follows:
|
|
EVT |
|
EVT |
|
Elimination between |
|
Evotec- |
In k€ |
|
Execute |
|
Innovate |
|
the segments |
|
Group |
Revenues |
|
546,718 |
|
204,730 |
|
— |
|
751,448 |
Intersegment revenues |
|
188,917 |
|
— |
|
(188,917) |
|
— |
Cost of revenue |
|
(605,751) |
|
(145,566) |
|
173,934 |
|
(577,383) |
Gross profit |
|
129,884 |
|
59,164 |
|
(14,983) |
|
174,065 |
Operating income and (expenses) |
|
|
|
|
|
|
|
|
Research and development cost |
|
(5,305) |
|
(86,320) |
|
14,983 |
|
(76,642) |
Selling, general and administrative cost |
|
(125,293) |
|
(30,897) |
|
— |
|
(156,190) |
Impairment of intangible assets |
|
— |
|
— |
|
— |
|
— |
Other operating income |
|
35,197 |
|
46,385 |
|
— |
|
81,582 |
Other operating expenses |
|
(1,960) |
|
(5) |
|
— |
|
(1,965) |
Total operating income and (expenses) |
|
(97,361) |
|
(70,837) |
|
14,983 |
|
(153,215) |
Operating income (loss) |
|
32,523 |
|
(11,673) |
|
— |
|
20,850 |
F-18
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The segment information for the financial year 2021 is as follows:
|
|
EVT |
|
EVT |
|
Elimination between |
|
Evotec- |
In k€ |
|
Execute |
|
Innovate |
|
the segments |
|
Group |
Revenues |
|
471,052 |
|
146,982 |
|
— |
|
618,034 |
Intersegment revenues |
|
139,116 |
|
|
|
(139,116) |
|
— |
Cost of revenue |
|
(482,588) |
|
(110,379) |
|
126,476 |
|
(466,491) |
Gross profit |
|
127,580 |
|
36,603 |
|
(12,640) |
|
151,543 |
Operating income and (expenses) |
|
|
|
|
|
|
|
|
Research and development cost |
|
(2,900) |
|
(81,940) |
|
12,640 |
|
(72,200) |
Selling, general and administrative cost |
|
(83,936) |
|
(21,509) |
|
— |
|
(105,445) |
Impairment of intangible assets |
|
— |
|
(683) |
|
— |
|
(683) |
Other operating income |
|
26,684 |
|
46,788 |
|
— |
|
73,472 |
Other operating expenses |
|
(4,319) |
|
(1,372) |
|
— |
|
(5,691) |
Total operating income and (expenses) |
|
(64,471) |
|
(58,716) |
|
12,640 |
|
(110,547) |
Operating income (loss) |
|
63,109 |
|
(22,113) |
|
— |
|
40,996 |
- Geographical Breakdown-
The geographical breakdown of revenues from customers for the business year 2023 is stated below:
in k€ |
|
EVT Execute |
|
EVT Innovate |
|
Evotec Group |
Revenues by region |
|
|
|
|
|
|
USA |
|
241,555 |
|
217,869 |
|
459,424 |
Germany |
|
15,385 |
|
18,749 |
|
34,134 |
France |
|
25,666 |
|
6,339 |
|
32,005 |
United Kingdom |
|
81,539 |
|
4,829 |
|
86,368 |
Switzerland |
|
64,876 |
|
48 |
|
64,924 |
Rest of the world |
|
76,105 |
|
19,049 |
|
95,154 |
Total revenue from contracts with customers |
|
505,125 |
|
266,884 |
|
772,009 |
Revenue from contributions |
|
9,417 |
|
— |
|
9,417 |
Total Revenue |
|
514,542 |
|
266,884 |
|
781,426 |
The geographical breakdown of revenues from customers for the business year 2022 is stated below:
in k€ |
|
EVT Execute |
|
EVT Innovate |
|
Evotec Group |
Revenues by region |
|
|
|
|
|
|
USA |
|
273,204 |
|
134,550 |
|
407,754 |
Germany |
|
32,765 |
|
26,130 |
|
58,895 |
France |
|
22,546 |
|
9,728 |
|
32,274 |
United Kingdom |
|
105,557 |
|
9,699 |
|
115,256 |
Switzerland |
|
22 |
|
— |
|
22 |
Rest of the world |
|
102,073 |
|
24,623 |
|
126,696 |
Total revenue from contracts with customers |
|
536,167 |
|
204,730 |
|
740,897 |
Revenue from contributions |
|
10,551 |
|
— |
|
10,551 |
Total Revenue |
|
546,718 |
|
204,730 |
|
751,448 |
F-19
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The geographical breakdown of revenues from customers for the business year 2021 is stated below:
in k€ |
|
EVT Execute |
|
EVT Innovate |
|
Evotec Group |
Revenues by region |
|
|
|
|
|
|
USA |
|
227,444 |
|
101,593 |
|
329,037 |
Germany |
|
24,279 |
|
22,573 |
|
46,852 |
France |
|
16,876 |
|
13,715 |
|
30,591 |
United Kingdom |
|
98,735 |
|
5,905 |
|
104,640 |
Switzerland |
|
24,398 |
|
80 |
|
24,478 |
Rest of the world |
|
70,755 |
|
3,116 |
|
73,871 |
Total revenue from contracts with customers |
|
462,487 |
|
146,982 |
|
609,469 |
Revenue from contributions |
|
8,565 |
|
— |
|
8,565 |
Total Revenue |
|
471,052 |
|
146,982 |
|
618,034 |
Revenue is allocated to regions according to the location of the head office of the external customer.
Non-current assets categorized by the location of the companies as of December 31, can be analyzed as follows:
In k€ |
|
2023 |
|
2022 |
USA |
|
221,195 |
|
231,439 |
UK |
|
221,177 |
|
211,115 |
Italy |
|
259,649 |
|
227,113 |
France |
|
337,960 |
|
205,749 |
Germany |
|
153,338 |
|
160,970 |
Austria |
|
2,634 |
|
3,914 |
Canada |
|
— |
|
1,906 |
|
|
1,195,954 |
|
1,042,206 |
Non-current assets shown in this table comprise of fixed assets, intangible assets, goodwill, non-current tax receivables, other non-current assets as well as investments for which the equity-method is applied.
(4) Revenue
-Accounting Principles-
Revenue from contracts with customers
Revenue is recognized when the control over separable services or research services is transferred to the customer, provided that a contract with enforceable rights and obligations exists and that collectability of consideration is probable. The Group assesses collectability based on a number of factors, including past transaction history with the customer and the customer’s creditworthiness.
Multi-element contracts
The Group regularly enters into arrangements for the R&D and subsequent manufacture of product candidates. Such arrangements may require the Group to deliver various rights, services and/or goods, including intellectual property rights, licenses, technology access fee, R&D services, and manufacturing services. The underlying terms of these arrangements generally provide for consideration to the Group in the form of non-refundable upfront fees, development and R&D or commercial performance milestone payments, royalty payments or profit sharing.
F-20
Evotec Group
Notes to consolidated financial statements for the financial year 2023
In arrangements involving more than one performance obligation, each required performance obligation is evaluated to determine whether it qualifies as a distinct performance obligation based on whether:
| ● | the customer can benefit from the good or service either on its own or together with other resources that are readily available and |
| ● | the good or service is separately identifiable from other promises in the contract. |
The consideration under the arrangement is then allocated to each separate distinct performance obligation based on its respective relative stand-alone selling price. The estimated selling price of each deliverable reflects the Group´s best estimate of what the selling price would be if the deliverable was regularly sold by the Group on a stand-alone basis or by using an adjusted market assessment approach if the selling price on a stand-alone basis is not available.
The consideration allocated to each distinct performance obligation is recognized as revenue when control of the related goods or services is transferred. For performance obligations satisfied over time, the Group usually uses an input-based method to determine the percentage of completion.
Consideration associated with at-risk substantive performance milestones is recognized as revenue when it is probable that a significant reversal of the cumulative revenue recognized will not occur.
Material payments for those services are generally made in advance by the customer and recorded as contract liabilities until the related performance obligations are satisfied.
Contract assets are recognized in case the Group´s progress of completion of its performance obligations exceeds the amount of the payments received.
Milestone payments
Milestone payments for research and development are contingent upon the occurrence of a future event and represent a variable consideration. The Group usually estimates at contract’s inception that the most likely amount for milestone payments is zero. The most likely amount method of estimation is considered the most predictive for the outcome since the outcome is binary; e.g. achieving a specific success in clinical development (or not).
The Group includes milestone payments in the total transaction price only to the extent that it is highly probable that a significant reversal of revenue will not occur when the uncertainty associated with the variable consideration is subsequently resolved.
Service Fees
Service fees for the assignment of personnel to research and development collaborations are recognized as revenues in the period the services were provided.
Technology access fees
Revenue from technology access fees is recognized over the related service period. Payments for technology access fees are generally paid in full or in parts in advance and recorded as contract liabilities until earned.
F-21
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Licenses of intellectual property
The Group distinguishes between the right to use IP and the right to access IP. Revenue for a right-to-use license is recognized by the Group when the licensee can use and benefit from the IP after the license term begins, e.g., the Group has no further obligations in the context of the out-licensing of a drug candidate or technology. In practice that means at the date of the sale or when the licensee gains effectively access.
Revenue from a right to access license of the intellectual property is recognized when the Group undertakes activities during the license term that significantly affect the IP, the customer is directly exposed to any positive or negative effects of these activities, and these activities do not result in the transfer of a good or service to the customer. Revenues from the right to access the IP are recognized on a straight-line basis over the license term.
Royalties
The Group receives royalties generated from successful development. Those royalties are generally sales based with additional milestones payments depending on the underlying market or product. The revenue generated from royalties is recognized as the underlying sales occur when it is highly probable that the consideration will be received.
Financing component and time value of money
The Group does not enter into arrangements where the period between the transfer of the promised goods or services to the customer and payment by the customer exceeds one year or the cash consideration and the stand alone selling price differs significantly. Additionally, the Group does not consider any prepayments provided by the customer as financing components. Consequently, the Group does not adjust any of the transaction prices for the time value of money.
Contract assets
Contract assets correspond to amounts accrued or due by customers for work in progress depending on the stage of completion of the analysis/work performed. The Group regularly assesses the state of its billing operations and the level of payer’s reimbursements based on specific facts and circumstances and historical recoverability data in order to identify issues which may impact the collection.
Contract liabilities
A contract liability is the obligation of the Group to transfer goods or services to a customer for which the Group has received a consideration (or an amount of consideration is due). If a customer pays the consideration before the Group transfers goods or services to the customer, a contract liability is recognized when the payment is made, or the payment is due (whichever is earlier). Contract liabilities are recognized as revenue when the Group fulfills its contractual obligation. The Group´s contracts do not include financing components as all up-front consideration received are prepayments on service obligations.
Revenue from contributions
Revenue Recognition from Contributions
The Group receives private contributions for which the existence of an adequate exchange transaction for research projects serving the public good is refuted. A realization of revenue from contracts with customers is not possible. A private contribution exists for which a contribution revenue item is recognized.
F-22
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The effect on profit or loss is immediate or occurs over the period in which the subsidized service is provided. A liability item must be recognized for a contribution that has already been received, but this is not a contractual obligation, but rather other liability. The reversal of the liability item is gross, i.e., as contribution revenue separately from the revenues.
-Revenue-
The following schedule entails detailed information about the Group’s revenues in the financial year 2023:
in k€ |
|
EVT Execute |
|
EVT Innovate |
|
Evotec Group |
Revenues from contracts with customers |
|
|
|
|
|
|
Fee for service and FTE-based research payments |
|
472,205 |
|
254,724 |
|
726,929 |
Recharges* |
|
30,496 |
|
7,065 |
|
37,561 |
Compound access fees |
|
1,283 |
|
776 |
|
2,059 |
Milestone fees |
|
1,026 |
|
3,759 |
|
4,785 |
Licenses |
|
116 |
|
559 |
|
675 |
Total revenue from contracts with customers |
|
505,125 |
|
266,884 |
|
772,009 |
Timing of revenue recognition |
|
|
|
|
|
|
At a point in time |
|
77,763 |
|
10,824 |
|
88,587 |
Over a period of time |
|
427,361 |
|
256,060 |
|
683,421 |
Total revenue from contracts with customers |
|
505,125 |
|
266,884 |
|
772,009 |
Revenue from contributions |
|
9,417 |
|
— |
|
9,417 |
Total Revenue |
|
514,542 |
|
266,884 |
|
781,426 |
*) Comprises of material re-charges to the customer
The following schedule entails detailed information about Evotec’s revenues in the financial year 2022:
in k€ |
|
EVT Execute |
|
EVT Innovate |
|
Evotec Group |
Revenues from contracts with customers |
|
|
|
|
|
|
Fee for service and FTE-based research payments |
|
488,168 |
|
185,268 |
|
673,436 |
Recharges* |
|
38,668 |
|
5,768 |
|
44,436 |
Compound access fees |
|
1,464 |
|
1,109 |
|
2,573 |
Milestone fees |
|
6,054 |
|
12,012 |
|
18,066 |
Licenses |
|
1,813 |
|
573 |
|
2,386 |
Total revenue from contracts with customers |
|
536,167 |
|
204,730 |
|
740,897 |
Timing of revenue recognition |
|
|
|
|
|
|
At a point in time |
|
44,722 |
|
17,780 |
|
62,502 |
Over a period of time |
|
491,445 |
|
186,950 |
|
678,395 |
Total revenue from contracts with customers |
|
536,167 |
|
204,730 |
|
740,897 |
Revenue from contributions |
|
10,551 |
|
— |
|
10,551 |
Total Revenue |
|
546,718 |
|
204,730 |
|
751,448 |
*) Comprises of material re-charges to the customer
F-23
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The following schedule shows the revenue in the financial year 2021:
in k€ |
|
EVT Execute |
|
EVT Innovate |
|
Evotec Group |
Revenues from contracts with customers |
|
|
|
|
|
|
Service fees and FTE-based research payments |
|
422,619 |
|
99,570 |
|
522,189 |
Material recharges* |
|
34,104 |
|
1,887 |
|
35,991 |
Compound access fees |
|
1,532 |
|
43 |
|
1,575 |
Milestone fees |
|
4,232 |
|
45,237 |
|
49,469 |
Licenses |
|
— |
|
245 |
|
245 |
Total revenue from contracts with customers |
|
462,487 |
|
146,982 |
|
609,469 |
Timing of revenue recognition |
|
|
|
|
|
|
At a certain time |
|
38,336 |
|
47,124 |
|
85,460 |
Over a period |
|
424,151 |
|
99,858 |
|
524,009 |
Total revenue from contracts with customers |
|
462,487 |
|
146,982 |
|
609,469 |
Revenue from contributions |
|
8,565 |
|
— |
|
8,565 |
Total Revenue |
|
471,052 |
|
146,982 |
|
618,034 |
*) Comprises of material re-charges to the customer
The transaction prices allocated to the remaining performance obligation (unsatisfied or partially unsatisfied) are as follows:
in k€ |
|
December 31, 2023 |
|
December 31, 2022 |
|
December 31, 2021 |
In the course of the year |
|
571,825 |
|
405,710 |
|
225,061 |
After one year |
|
335,427 |
|
158,068 |
|
67,619 |
During the year 2023 no material revenue was recognized from performance obligations that were already fully or partially fulfilled in prior reporting periods.
In 2023, 2022 and 2021, BMS contributed more than 10% to the consolidated revenues with € 195,386k (2022: € 138,737k, 2021: € 98,616 k).
-Contract Assets-
In the course of the reporting year, contract assets changed as follows:
In k€ |
|
2023 |
|
2022 |
Balance as of January 1 |
|
30,516 |
|
18,614 |
Additions |
|
180,305 |
|
116,215 |
Reclassifications to Trade Receivables due to Invoicing |
|
(185,754) |
|
(101,908) |
Translation differences and other |
|
(67) |
|
(2,405) |
Balance as of December 31 |
|
25,000 |
|
30,516 |
As of December 31, 2023 and 2022, no material risk provision was recorded.
F-24
Evotec Group
Notes to consolidated financial statements for the financial year 2023
-Contract Liabilities-
As of December 31, 2023 and 2022, current and non-current contract liabilities mainly originate from the upfront payments relating to the customer contracts with BMS in the amount of € 202,238k (December 31, 2022: € 235,652k) of which € 49,153k (December 31, 2022: € 42,506k) is classified as current contract liabilities.
|
|
Current |
|
Non-current |
||||
In k€ |
|
2023 |
|
2022 |
|
2023 |
|
2022 |
Balance as of January 1 |
|
122,922 |
|
112,061 |
|
206,136 |
|
33,476 |
Additions |
|
203,825 |
|
502,094 |
|
— |
|
184,660 |
Reduction due to Recognition of Revenue |
|
(279,691) |
|
(503,747) |
|
— |
|
— |
Reclassification from non-current to current |
|
50,849 |
|
12,000 |
|
(50,849) |
|
(12,000) |
Translation differences and other |
|
(318) |
|
514 |
|
— |
|
— |
Balance as of December 31 |
|
97,587 |
|
122,922 |
|
155,287 |
|
206,136 |
(5) Other operating income (Loss)
-Accounting Principles-
Operating income excludes in general items that are not directly related to the Group’s operating activities, except cyber-related costs which are also included in the operating income. Activities in relation with the Group´s operating activities primarily relate to gains or losses on the disposal of material property, plant and equipment, gains or losses on the sale of Group companies, associates and joint ventures, indemnification provisions as well as disputes with minority shareholders.
Other Operating Income
The Group may receive tax credits from tax development programs in the context of qualifying R&D expenses in different jurisdictions. Such tax refunds regularly result in amounts which can be offset against taxable income, to provide a partial or full relief from tax or other payments to fiscal authorities. The Group determined that under its significant tax development programs, the feature of the credit is provided in a way which allows either offsetting against taxable income or instead, when insufficient taxable profits are available, direct reimbursement and payment in cash. In addition, the tax development programs are provided for specific activities, often limited to specific R&D expenses. As such, the Group accounts for such tax development programs as other operating income and does not account for such income as tax income or offsets tax credits from income tax expense.
In certain cases, the Group recharges costs to third parties. The income from those recharges is recognized in other operating income when it is a direct reimbursement of costs. There is no underlying direct exchange of services for this income and therefore a recognition as revenues is not suitable. The relating expenses are recognized in other operating expenses as well as in R&D expenses.
Research and development
Research activities expenses undertaken with the prospect of gaining new scientific or technical knowledge and understanding are recognized in profit or loss when incurred. Refer to Note 9 for further details regarding the capitalization policy of IP R&D and other related expenses.
F-25
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Government Grants
Government grants are recognized when all the conditions associated to those grants have been substantially complied with, and all attached conditions have been complied with. When the grant relates to an expense item, it is recognized as a reduction of the related expense. When the grant relates to an asset, it is recognized as income evenly over the expected useful life of the related asset.
- Personnel expenses and cost of material-
The personnel expenses of the Group in 2023 amounted to € 377,587k of which € 256,259k relate to personnel expenses outside Germany, in the UK, Italy, Switzerland (only 2021), France, and the US (2022: € 388,050k and € 284,452k respectively, 2021: € 319,353k and € 240,947k, respectively). Thereof expenses for the statutory retirement insurance amounted to € 17,041k of which € 9,788k relate to expenses outside Germany in the United Kingdom, Italy, Switzerland (only 2021), France and the US (2022: € 15,106k and k€ € 9,066k respectively, 2021: € 12,407k and € 7,566k respectively.) In addition, an amount of € 58,276k (2022: € 55,894k, 2021: € 40,309k) of the Group´s personnel expenses relate to social security expenses.
- Cost of material-
Cost of materials in 2023 amounted to € 118,918k thereof € 88,192k were cost of materials outside Germany in the UK, Italy, Switzerland (only 2021), France, Austria and the US (2022: € 120,568k and € 90,901k respectively, 2021: € 107,837k and € 83,275k, respectively.)
- Research and Development-
In 2023, research expenses mainly relate to internal Innovate R&D projects in the amount of € 56,511k (December 31, 2022: € 62,100k; December 31, 2021: € 64,064k) research activities of Execute reporting segment in the amount of € 1,319k (December 31, 2022: € 2,345k; December 31, 2021: € 2,528k) and overhead costs in the amount of € 10,699k (December 31, 2022: € 12,198k; December 31, 2021: € 8,136k). Overhead costs mainly consist of personnel overhead costs. The decrease in research and development expenses compared to financial year 2022 is mainly due to altered commencement dates for some of the Group´s R&D projects. Research and Development costs include amortization of intangible assets and depreciation of property, plant, and equipment of € 464k (December, 31 2022: € 471k; December 31, 2021:€ 1,042k).
-Selling, general and administrative expenses-
Included in selling, general and administrative expenses in 2023 are expenses for sales and marketing in the amount of € 16,869k (2022: € 13,491k, 2021: € 9,422k). Other administrative expenses in 2023 amount to € 152,741k (2022: € 142,699k, 2021: € 96,023k). The increase in administrative costs from 2022 (and 2021) to 2023 is in particular due to increased expenses for maintaining compliance with the SOX regulations, increased personnel costs as a result of company growth and higher expenses for IT services. The increase in administrations costs in 2022 compared to 2021 is further due to the introduction of a new ERP which includes associated consulting services. Included in selling, general and administrative expenses are amortization for intangible assets and depreciation for property, plant and equipment of € 43,522k (2022: € 38,025k, 2021: € 24,957k).
-Other operating income-
In 2023 and 2022, and 2021, other operating income mainly relates to refunds from Sanofi relating to the development of portfolios in Lyon in the amount of € 16,600k (2022: € 34,174k, 2021: € 35,762k). In addition, other operating income includes tax refunds in France (2023: € 24,812k, 2022: € 25,068k, 2021: € 22,691k) and similar refunds in the UK from “Research and Development Expenditure Credit” (RDEC) ( 2023: € 11,010k, 2022: € 7,250k, 2021: € 6,502k), Italy (2023: € 6,352k, 2022: € 7,342k, 2021:€ 2,784k) and Germany (2023: € 1,000k, 2022: € 3,280k, 2021: € 0k).
F-26
Evotec Group
Notes to consolidated financial statements for the financial year 2023
-Other operating expense-
As of December 31, 2023 other operating expense amount to € 44,202k (December 31, 2022: € 1,965k, December 31, 2021: € 5,691k ). The increase in 2023 is mainly due to managing the impact of the cyber-attack. The costs are related to external costs such as third-party involvement from consultants or legal advisors, and internal costs in form of work contributed by Evotec staff.
(6) Income and deferred tax
-Accounting Principles-
Income taxes comprise current, non-current and deferred tax.
Income tax is recognized in the Consolidated Income Statement except to the extent that it relates to items recognized directly within equity or in Other Comprehensive Income.
Current tax is the expected taxes payable on the taxable income for the year, using tax rates enacted or substantively enacted at the reporting date, and any adjustment to tax payable in respect of previous years. The tax rates for domestic companies are between 27% and 32% and for foreign companies between 19% and 31%.
In cases where it is concluded it is not probable that tax authorities will accept a tax treatment, the effect of the uncertainty is reflected in the recognition and measurement of tax assets and liabilities or, alternatively, a provision is made for the amount that is expected to be settled, where this can be reasonably estimated. This assessment relies on estimates and assumptions and may involve a series of judgements about future events.
New information may become available that causes the Group to change its judgement regarding adequacy of existing tax assets and liabilities. Such changes to tax assets and liabilities will impact the income tax expense in the period during which such a determination is made.
Deferred tax assets and liabilities are recognized, using the consolidated Balance Sheet method, for the expected tax consequences of temporary differences between the carrying amounts of assets and liabilities according to IFRS and the amounts used for taxation purposes. Deferred taxes are measured at the tax rates that are expected to be applied to temporary differences when they reverse, based on the laws that have been enacted or substantively enacted by the reporting date.
Deferred taxes are recognized for all taxable temporary differences, except:
| ● | temporary differences arising on the initial recognition of goodwill, |
| ● | temporary differences on the initial recognition of an asset or liability in a transaction that is not a business combination and, at the time of the transaction, affects neither the accounting profit nor taxable profit or loss, and at the time of the transaction, does not give rise to equal taxable and deductible temporary differences, |
| ● | temporary differences relating to investments in subsidiaries, associates, and interests in joint ventures, when the timing of the reversal of the temporary differences can be controlled and it is probable that the temporary differences will not reverse in the foreseeable future. |
Deferred tax assets and liabilities are offset if there is a legally enforceable right to offset current tax liabilities and assets, and they relate to income taxes levied by the same tax authority on the same taxable entity or on different taxable entities, but the Group intends to settle current tax liabilities and assets on a net basis, or their tax assets and liabilities will be realized simultaneously.
F-27
Evotec Group
Notes to consolidated financial statements for the financial year 2023
A deferred tax asset is recognized for unused tax losses, tax credits and deductible temporary differences to the extent that it is probable that there will be future taxable profits against which they can be utilized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income in the countries where the deferred tax assets originated and during the periods when the deferred tax assets become deductible. The Group considers the scheduled reversal of deferred tax liabilities, projected future taxable income and tax planning strategies in making this assessment.
International Tax Reform - Pillar II Framework
The Group falls within the scope of application of the so-called Pillar II framework, that entered into force in the German legislation on December 28, 2023.
As the Minimum Tax Act applies for the first-time financial years beginning on or after December 30, 2023 (“MinStG”), there was no minimum tax exposure for the fiscal year 2023. The implementation of the global minimum tax rules into domestic legislation in other jurisdictions also did not result in any minimum tax being levied in 2023.
At the same time, Pillar II legislation has been enacted or substantially enacted in a number of other jurisdictions in which the Group operates, effective for the financial year beginning January 1, 2024.
As the Group is in scope of the Pillar II legislation the group may be liable to pay a top-up tax for each jurisdiction having an effective tax rate below 15%.
During the transitional period from 2024 to 2026, the top up tax can, upon request, be deemed zero for a jurisdiction where the requirements of the country by country reporting safe harbor rules are met. The Group will exercise this option, which based on the 2023 fiscal year, would lead to the Company being exempt from minimum taxation in most of the jurisdictions in which it operates.
The Group has performed a preliminary assessment of its potential exposure based on the information currently available, however, does not expect it to have a material impact on the Group’s effective tax rate and to be liable for material top up tax payments in the countries in which it operates.
The Group has applied the exception to recognizing and disclosing information about deferred taxes relating to Pillar II income taxes, as provided by the amendment to IAS 12 issued in May 2023 and endorsed in the EU in November 2023.
F-28
Evotec Group
Notes to consolidated financial statements for the financial year 2023
-Income tax expenses-
Income tax benefit and expense for the years 2023, 2022 and 2021 comprise the following.
|
|
2023 |
|
2022 |
|
2021 |
|
|
k€ |
|
k€ |
|
k€ |
Current taxes |
|
|
|
|
|
|
- Tax expense for the year |
|
(5,251) |
|
(14,132) |
|
(12,309) |
- Income (expense) relating to other periods |
|
(2,666) |
|
156 |
|
(4,095) |
Total current income taxes |
|
(7,917) |
|
(13,976) |
|
(16,404) |
Deferred taxes |
|
|
|
|
|
|
- Tax loss carry forwards |
|
1,606 |
|
(10,862) |
|
(5,140) |
- Temporary differences |
|
2,991 |
|
3,140 |
|
74 |
Total deferred income taxes |
|
4,597 |
|
(7,722) |
|
(5,066) |
Tax expense recognized in the income statement |
|
(3,320) |
|
(21,698) |
|
(21,470) |
- Reconciliation of effective tax rate-
The difference between the actual income tax expense and the result of the net income and the applicable Group tax rate in the reporting year and the previous year is made up as follows:
|
|
2023 |
|
2022 |
|
2021 |
|
|
|
k€ |
|
k€ |
|
k€ |
|
Income (loss) before taxes |
|
(80,593) |
|
(153,956) |
|
236,980 |
|
Expected German income tax rate |
|
32.28 |
% |
32.28 |
% |
32.28 |
% |
Expected income tax benefit (expense) |
|
26,015 |
|
49,697 |
|
(76,497) |
|
Non-deductible expenses |
|
(8,274) |
|
(59,543) |
|
(511) |
|
R&D tax credits |
|
8,558 |
|
13,454 |
|
6,742 |
|
Tax free income |
|
7,968 |
|
3,184 |
|
71,917 |
|
Permanent differences from GILTI |
|
(156) |
|
(3,724) |
|
(444) |
|
Tax effects from investments accounted for using the equity method |
|
(8,373) |
|
(5,152) |
|
(9,300) |
|
Deviation tax rates to expected tax rate |
|
(1,343) |
|
448 |
|
1,815 |
|
Change in tax rates |
|
(251) |
|
636 |
|
521 |
|
Change in recognition of deferred tax assets |
|
(25,568) |
|
(19,167) |
|
(10,247) |
|
Taxes related to prior years |
|
|
|
|
|
|
|
Current Taxes |
|
(2,666) |
|
156 |
|
(4,095) |
|
Deferred Taxes |
|
556 |
|
(1,348) |
|
(570) |
|
Other |
|
213 |
|
(341) |
|
(801) |
|
Effective income tax income (expense) |
|
(3,320) |
|
(21,698) |
|
(21,470) |
|
Effective income tax rate |
|
(4.12) |
% |
(14.09) |
% |
9.06 |
% |
The Group tax rate includes corporate income tax plus solidarity surcharge of 15.825% and trade tax, which ranges from 11.550% - 16.625% depending on the municipality.
The tax-free income in 2023 mainly results from the revaluation of the shares in Exscientia plc, which is not subject to tax in accordance with previous years (in 2022 there was non-deductible expense for tax purposes from the devaluation of the shares).
F-29
Evotec Group
Notes to consolidated financial statements for the financial year 2023
In 2021, the initial public offering of Exscientia plc in the United States resulted in a significant increase of the investment which impacts income and is tax free.
-Deferred Taxes-
Deferred income tax assets and liabilities calculated with the anticipated tax rates of each entity as of December 31, 2023 and 2022 relate to the following:
|
|
Jan 1, 2023 |
|
Recognized in |
|
|
|
|
|
Dec 31, 2023 |
||||||
|
|
|
|
Recognized |
|
other |
|
Foreign |
|
|
|
|
|
Deferred |
|
Deferred |
|
|
|
|
in |
|
comprehensive |
|
currency |
|
Business |
|
|
|
tax |
|
tax |
|
|
Net balance |
|
profit or loss |
|
income |
|
translation |
|
Combination |
|
Net |
|
assets |
|
liabilities |
|
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
Property, plant and equipment |
|
(9,457) |
|
(2,096) |
|
— |
|
20 |
|
— |
|
(11,533) |
|
1,807 |
|
(13,340) |
Intangible assets |
|
(19,646) |
|
6,285 |
|
— |
|
61 |
|
— |
|
(13,300) |
|
4,004 |
|
(17,304) |
Right of use assets |
|
(28,839) |
|
(770) |
|
— |
|
— |
|
— |
|
(29,609) |
|
— |
|
(29,609) |
Financial assets |
|
(1,446) |
|
(965) |
|
(419) |
|
— |
|
— |
|
(2,830) |
|
783 |
|
(3,613) |
Provisions and deferred income |
|
9,250 |
|
(1,142) |
|
13 |
|
— |
|
— |
|
8,121 |
|
8,347 |
|
(226) |
Lease obligations |
|
25,278 |
|
(577) |
|
— |
|
— |
|
— |
|
24,701 |
|
24,701 |
|
— |
Other |
|
4,244 |
|
2,068 |
|
— |
|
— |
|
— |
|
6,312 |
|
6,942 |
|
(630) |
Tax credits |
|
273 |
|
188 |
|
— |
|
— |
|
— |
|
461 |
|
461 |
|
— |
Loss carryforward |
|
12,146 |
|
1,606 |
|
— |
|
118 |
|
— |
|
13,870 |
|
13,870 |
|
— |
Total |
|
(8,197) |
|
4,597 |
|
(406) |
|
199 |
|
— |
|
(3,807) |
|
60,915 |
|
(64,722) |
Offsetting of tax |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
(46,585) |
|
46,585 |
Net |
|
(8,197) |
|
4,597 |
|
(406) |
|
199 |
|
— |
|
(3,807) |
|
14,330 |
|
(18,137) |
|
|
Jan 1, 2022 |
|
Recognized in |
|
|
|
|
|
Dec 31, 2022 |
||||||
|
|
|
|
Recognized |
|
other |
|
Foreign |
|
|
|
|
|
Deferred |
|
Deferred |
|
|
|
|
in |
|
comprehensive |
|
currency |
|
Business |
|
|
|
tax |
|
tax |
|
|
Net balance |
|
profit or loss |
|
income |
|
translation |
|
Combination |
|
Net |
|
assets |
|
liabilities |
|
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
Property, plant and equipment |
|
(4,855) |
|
(5,140) |
|
— |
|
508 |
|
30 |
|
(9,457) |
|
1,563 |
|
(11,020) |
Intangible assets |
|
(22,348) |
|
2,536 |
|
— |
|
(130) |
|
296 |
|
(19,646) |
|
965 |
|
(20,611) |
Right of use assets |
|
(21,979) |
|
(6,860) |
|
— |
|
— |
|
— |
|
(28,839) |
|
— |
|
(28,839) |
Financial assets |
|
(3,985) |
|
2,539 |
|
— |
|
— |
|
— |
|
(1,446) |
|
453 |
|
(1,899) |
Provisions and deferred income |
|
3,965 |
|
5,640 |
|
(357) |
|
2 |
|
— |
|
9,250 |
|
12,759 |
|
(3,509) |
Lease obligations |
|
19,927 |
|
5,351 |
|
— |
|
— |
|
— |
|
25,278 |
|
25,278 |
|
— |
Other |
|
4,949 |
|
(727) |
|
— |
|
22 |
|
— |
|
4,244 |
|
5,778 |
|
(1,534) |
Tax credits |
|
1,034 |
|
(199) |
|
(633) |
* |
71 |
|
— |
|
273 |
|
273 |
|
— |
Loss carryforward |
|
22,963 |
|
(10,862) |
|
— |
|
45 |
|
— |
|
12,146 |
|
12,146 |
|
— |
Total |
|
(329) |
|
(7,722) |
|
(990) |
|
518 |
|
326 |
|
(8,197) |
|
59,215 |
|
(67,412) |
Offsetting of tax |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
(48,888) |
|
48,888 |
Net |
|
(329) |
|
(7,722) |
|
(990) |
|
518 |
|
326 |
|
(8,197) |
|
10,327 |
|
(18,524) |
*Was recognized directly in equity and not through other comprehensive income.
F-30
Evotec Group
Notes to consolidated financial statements for the financial year 2023
-Unrecognized deferred tax liabilities-
Concerning undistributed foreign subsidiaries earnings, temporary differences in the amount of € 15,842k were not recognized according to IAS 12.39 (December 31, 2022: € 20,576k) as the Group controls the timing of such reversal and it is not planned to distribute the foreign subsidiaries earnings.
-Unrecognized deferred tax assets-
The Company’s deferred tax assets are recorded to the extent it is probable that such tax benefits would be realized in future years. As of December 31, 2023, no additional deferred tax assets on tax loss carryforwards exceeding the recognized deferred tax liabilities, were recognized for four German, one French, one Italian, the United States entities as well as the Austrian and the Indian entity. In the following schedule, tax loss carryforwards, interest carryforwards and tax credits for which no deferred tax assets were recorded are shown. Tax loss carryforwards on different types of income taxes were aggregated into one total amount.
|
|
2023 |
|
2022 |
|
2021 |
|
|
k€ |
|
k€ |
|
k€ |
Tax loss carryforwards (not expiring) |
|
572,204 |
|
474,989 |
|
307,682 |
Time-limited tax losses |
|
|
|
|
|
|
- expiring until 2028 (2022: 2027) |
|
24,768 |
|
13,297 |
|
21,409 |
- expiring 2029 to 2033 (2022: 2028 - 2032) |
|
32,179 |
|
45,696 |
|
38,207 |
- expiring after 2033 (2022: 2032) |
|
38,243 |
|
57,662 |
|
73,811 |
Interest carry forwards |
|
— |
|
— |
|
— |
Tax credits |
|
1,181 |
|
1,313 |
|
1,286 |
Total |
|
668,575 |
|
592,958 |
|
442,395 |
The table above does not include U.S. tax losses which are subject to s382 restrictions.
In addition to unrecognized deferred tax assets from tax loss carryforwards, a net asset position for temporary differences amounting to € 14,323k (December 31, 2022: € 11,354k; December 31, 2021: € 6,346k) was not recognized as of December 31, 2023, as there was no sufficient taxable income foreseen.
-Non-current and current tax assets-
Non-current tax receivables as of December 31, 2023 and 2022 mainly relate to tax refunds from tax development programs in the context of qualifying R&D expenses in France (crédit d’impôt recherche).
Current tax receivables as of December 31, 2023 and 2022 mainly comprise of tax refunds in relation with qualifying R&D projects in France and in the UK.
F-31
Evotec Group
Notes to consolidated financial statements for the financial year 2023
(7) Current assets and liabilities
-Accounting Principles-
Trade accounts receivable
Trade accounts receivable are initially recognized at their invoiced amounts less any deductions such as trade discounts. For trade accounts receivable, the Group applies the simplified approach with expected lifetime credit losses recognized from initial recognition of the receivables in the income statement. The provision for doubtful debts is established using an expected credit loss model (ECL) using the simplified approach in accordance with IFRS 9. The carrying amount of trade accounts receivable is reduced through the use of an allowance account. Impaired trade accounts receivables are derecognized when they are assessed as uncollectible.
Inventories
In accordance with IAS 2, inventories are stated at the lower of cost or net realizable value. The cost of inventories comprises all costs of purchase, manufacturing, as well as other costs incurred in bringing the inventories to their present location and condition.
The cost of inventories is predominantly determined by using the weighted average cost method. Depending on the nature of inventory, the Group also applies the first-in, first-out method in rare cases. The net realizable value represents the estimated sales price in the ordinary course of business less the estimated costs of completion and the estimated costs necessary to make the sale. Write-downs of inventories which are considered obsolete or slow moving are computed taking into account their expected future utilization and their net realizable value. The Group also considers other reasons that the cost of inventories may not be recoverable such as damage, obsolescence, expiration date or declines in selling price.
-Trade accounts receivables-
The Group has assessed the default risk of all trade accounts receivables. The resulting valuation allowance as of December 31, 2023 amounts to € 6,453k (December 31, 2022: € 3,223k) and includes a risk provision for specific default risks of trade receivables in the amount of € 6,121k (December 31, 2022: € 2,312k) as well as for expected credit risks according to IFRS 9 in the amount of € 331k (December 31, 2022: € 911k).
The maturities of trade receivables as at December 31, taking into account risk provisions, are as follows:
|
|
Dec 31 |
|
Dec 31 |
|
|
2023 |
|
2022 |
|
|
k€ |
|
k€ |
Not past due |
|
57,742 |
|
139,226 |
Risk provision not past due |
|
(367) |
|
— |
Past due 1-30 days |
|
25,837 |
|
24,704 |
Risk provision 1-30 days |
|
(170) |
|
(67) |
Past due 31-120 days |
|
12,688 |
|
6,559 |
Risk provision 31-120 days |
|
(280) |
|
(469) |
More than 120 days |
|
8,582 |
|
6,109 |
Risk provision more than 120 days |
|
(5,636) |
|
(4,264) |
Total trade accounts receivables |
|
98,396 |
|
171,798 |
1In the published annual report 2022 the trade accounts receivables were split into the two separate line items: Trade account receivables (€ 168,653k) and accounts receivables from associated companies and other long-term investments (€ 3,146k).
F-32
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The allowance for expected credit risks in accordance with IFRS 9 was recognized on the basis of estimates. The expected default rates range between 0.010% and 4.020% (December 31, 2022: 0.078% and 16.758%) and are taken into account in the allowance.
-Inventories-
Inventories consist of the following:
|
|
Dec 31 |
|
Dec 31 |
|
|
2023 |
|
2022 |
|
|
k€ |
|
k€ |
Raw materials |
|
25,901 |
|
27,917 |
Work-in-progress |
|
4,989 |
|
1,908 |
Total inventories |
|
30,890 |
|
29,825 |
Raw materials mainly consist of consumables, cell culture media and disposables.
The increase in work-in-progress is mainly due to new projects in Aptuit Oxford Ltd. for the manufacturing of excipients and active pharmaceutical ingredients. For these projects revenue is recognized at a point in time.
Allowances on inventories exist at the balance sheet date in the amount of € 2,573k (December 31, 2022: € 1,679k).
In 2023, € (54,987)k (2022: € (61,182)k) of inventories were recognized as an expense.
-Prepaid expenses and other current assets-
Prepaid expenses as of December 31, 2023 mainly relate to prepayments for subscriptions to IT licenses. The other current assets mainly comprise VAT-related receivables of € 17,844k (December 31, 2022: € 19,035k).
In k€ |
|
December 31, 2023 |
|
December 31, 2022 |
Prepaid expenses |
|
18,395 |
|
16,948 |
Other current assets |
|
32,950 |
|
40,178 |
Total prepaid expenses and other current assets |
|
51,345 |
|
57,126 |
-Trade payables-
As of December 31, 2023 the Group’s trade payables amount to € 134,319k (December 31, 2022: € 97,277k) and consist of payables in relation with the normal cause of business.
-Other current liabilities-
As of December 31, 2023 other current liabilities included wage taxes in the amount of € 2,793k (December 31, 2022: € 1,851k) and social security liabilities with an amount of € 4,429k (December 31, 2022: € 4,472k).
F-33
Evotec Group
Notes to consolidated financial statements for the financial year 2023
(8) Property, plant and equipment
-Accounting principles-
Owned Assets
Property, plant and equipment, including leasehold improvements are recorded in the Statement of Financial Position at their acquisition price, net of accumulated depreciation and impairment losses.
The costs of property, plant and equipment comprise all directly attributable costs.
After initial measurement, property, plant and equipment is carried at cost less accumulated depreciation and impairment, except for land which is carried at cost less impairment.
Depreciation is calculated using the straight-line method over the estimated useful life of the asset, which the Group reviews at each balance sheet date. Costs related to repair and maintenance activities are expensed in the period in which they are incurred unless leading to an extension of the original lifetime or capacity. Leasehold improvements are amortized using the straight-line method over the shorter of the lease term or the estimated useful life of the asset.
Subsequent costs are not recognized as assets unless it is probable that future economic benefits associated with those costs will flow to the Group and those costs can be measured reliably. Borrowing costs attributable to the financing of items of property, plant and equipment, and incurred during the construction period, are capitalized as part of the acquisition cost of the item. Government grants relating to property, plant and equipment are deducted from the acquisition cost of the asset to which they relate.
The straight-line depreciation is based on the following useful lives of the asset:
Buildings |
|
15 to 33 years |
Technical equipment and machinery |
|
3 to 15 years |
Office furniture and equipment |
|
3 to 10 years |
The costs included in property, plant and equipment related to assets under construction are not depreciated until the assets are placed into service by the Group. Upon sale or retirement, the costs and the related accumulated depreciation are removed from the respective accounts and any gain or loss is included in other operating income and expenses.
Leases
The Group leases various offices, laboratories equipment and cars. The Group determines whether an arrangement constitutes or contains a lease at inception, which is based on the substance of the arrangement. The arrangement constitutes or contains a lease if fulfillment is dependent on the use of a specific asset and the arrangement conveys a right to use the asset, even if that asset is not explicitly specified in the arrangement.
Leases are recognized as a right-of-use asset and a corresponding liability at the date at which the leased asset is available for use by the Group.
The right-of use asset is depreciated over the shorter of the asset’s useful life or the lease term on a straight-line basis.
F-34
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Assets and liabilities arising from a lease are initially measured on a present value basis. Lease liabilities include the net present value of the following lease payments:
| ● | fixed payments (including in-substance fixed payments) less any lease incentives receivable; |
| ● | variable lease payments that are based on an index or a rate; |
| ● | amounts expected to be payable by the lessee under residual value guarantees; |
| ● | the exercise price of a purchase option if the lessee is reasonably certain to exercise that option; |
| ● | payments of penalties for terminating the lease, if the lease term reflects the lessee exercising that option. |
Variable lease payments that do not depend on an index or a rate are recognized as expenses in the period in which the event or condition that triggers the payment occurs.
The lease payments are discounted using the interest rate implicit in the lease. If that rate cannot be determined, the Group´s incremental borrowing rate at the lease commencement date is used, which is based on an assessment of interest rates, the Group would have to pay to borrow funds in the relevant country, including the consideration of factors such as the nature of the asset, its location, as well as the duration of the lease.
After the commencement date, the amount of lease liabilities is increased to reflect the accretion of interest and reduced for the lease payments made.
In addition, the carrying amount of lease liabilities is remeasured if there is a modification, a change in the lease term, a change in the in-substance fixed lease payments or a change in the assessment to purchase the underlying asset.
Right-of-use assets are measured at cost comprising the following:
| ● | the amount of the initial measurement of lease liability; |
| ● | any lease payments made at or before the commencement date less any lease incentives received; |
| ● | any initial direct costs; |
| ● | restoration costs. |
The right-of-use assets are subsequently accounted for using principles for property, plant and equipment.
Payments associated with short-term leases and leases of low-value assets are recognized on a straight-line basis as an expense in the income statement. The Group defines short-term leases as leases with a lease term of 12 months or less. Low-value assets comprise IT-equipment and small items of office furniture considered to be of low value (i.e., less than € 5,000).
The Group determines the lease term as the non-cancellable term of the lease, together with any periods covered by an option to extend the lease if it is reasonably certain to be exercised, or any periods covered by an option to terminate the lease, if it is reasonably certain not to be exercised. The Group applies judgement in evaluating whether it is reasonably certain to exercise the option to renew. That is, it considers all relevant factors that create an economic incentive for it to exercise the renewal.
F-35
Evotec Group
Notes to consolidated financial statements for the financial year 2023
-Property Plant and Equipment-
The development of property, plant and equipment as well as the development of the right-of-use assets in 2023 and 2022 are shown in the following tables.
|
|
Buildings and leasehold |
|
Plant, machinery |
|
Furniture |
|
Assets under |
|
|
|
|
||||||
|
|
improvements |
|
and equipment |
|
and fixtures |
|
construction |
|
Total |
||||||||
in k€ |
|
Owned |
|
Right-of-Use |
|
Owned |
|
Right-of-Use |
|
Owned |
|
Right-of-Use |
|
Owned |
|
Owned |
|
Right-of-Use |
Cost |
|
240,328 |
|
222,734 |
|
285,248 |
|
4,688 |
|
50,114 |
|
1,317 |
|
116,381 |
|
692,071 |
|
228,739 |
Accumulated depreciation and impairment |
|
42,680 |
|
55,779 |
|
136,405 |
|
3,902 |
|
31,110 |
|
733 |
|
— |
|
210,195 |
|
60,414 |
Balance as of January 1, 2023 |
|
197,648 |
|
166,955 |
|
148,843 |
|
786 |
|
19,004 |
|
584 |
|
116,381 |
|
481,876 |
|
168,325 |
Recognition of right-of-use asset |
|
— |
|
32,663 |
|
— |
|
533 |
|
— |
|
706 |
|
— |
|
— |
|
33,902 |
Acquisition through business combination |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Capital expenditure/Additions |
|
17,905 |
|
— |
|
42,863 |
|
— |
|
12,087 |
|
— |
|
145,733 |
|
218,589 |
|
— |
Disposals |
|
521 |
|
3,963 |
|
99 |
|
100 |
|
92 |
|
11 |
|
— |
|
712 |
|
4,074 |
Depreciation |
|
17,509 |
|
19,998 |
|
36,478 |
|
684 |
|
10,972 |
|
393 |
|
— |
|
64,959 |
|
21,075 |
Impairment |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Reclassification |
|
20,018 |
|
(1,014) |
|
14,384 |
|
1,029 |
|
408 |
|
100 |
|
(34,925) |
|
(115) |
|
115 |
Translation differences and other |
|
(2,570) |
|
(180) |
|
(948) |
|
— |
|
(69) |
|
2 |
|
(1,544) |
|
(5,130) |
|
(178) |
Total |
|
214,971 |
|
174,463 |
|
168,565 |
|
1,565 |
|
20,365 |
|
989 |
|
225,645 |
|
629,546 |
|
177,017 |
Cost |
|
274,335 |
|
249,853 |
|
339,277 |
|
4,251 |
|
61,763 |
|
1,749 |
|
225,645 |
|
901,020 |
|
255,853 |
Accumulated depreciation and impairment |
|
59,365 |
|
75,390 |
|
170,713 |
|
2,686 |
|
41,397 |
|
760 |
|
— |
|
271,474 |
|
78,836 |
Balance as of December 31, 2023 |
|
214,971 |
|
174,463 |
|
168,565 |
|
1,565 |
|
20,365 |
|
989 |
|
225,645 |
|
629,546 |
|
177,017 |
F-36
Evotec Group
Notes to consolidated financial statements for the financial year 2023
|
|
Buildings and leasehold |
|
Plant, machinery and |
|
Furniture |
|
Assets under |
|
|
|
|
||||||
|
|
improvements |
|
equipment |
|
and fixtures |
|
construction |
|
Total |
||||||||
in k€ |
|
Owned |
|
Right-of-Use |
|
Owned |
|
Right-of-Use |
|
Owned |
|
Right-of-Use |
|
Owned |
|
Owned |
|
Right-of-Use |
Cost |
|
200,865 |
|
177,602 |
|
219,534 |
|
8,077 |
|
38,661 |
|
997 |
|
40,350 |
|
499,410 |
|
186,676 |
Accumulated depreciation and impairment |
|
27,657 |
|
35,722 |
|
108,517 |
|
5,384 |
|
23,677 |
|
532 |
|
— |
|
159,851 |
|
41,638 |
Balance as of January 1, 2022 |
|
173,208 |
|
141,880 |
|
111,017 |
|
2,693 |
|
14,984 |
|
465 |
|
40,350 |
|
339,559 |
|
145,038 |
Recognition of right-of-use asset |
|
— |
|
38,393 |
|
— |
|
306 |
|
— |
|
— |
|
— |
|
— |
|
38,699 |
Acquisition through business combination |
|
2,594 |
|
3,940 |
|
3,309 |
|
— |
|
(231) |
|
338 |
|
94 |
|
5,766 |
|
4,278 |
Capital expenditure/Additions |
|
23,280 |
|
— |
|
59,305 |
|
— |
|
11,663 |
|
— |
|
95,618 |
|
189,866 |
|
— |
Disposals |
|
3,529 |
|
— |
|
1,538 |
|
— |
|
12 |
|
— |
|
862 |
|
5,941 |
|
— |
Depreciation |
|
15,271 |
|
17,855 |
|
29,915 |
|
575 |
|
8,832 |
|
229 |
|
— |
|
54,018 |
|
18,659 |
Impairment |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Reclassification |
|
13,009 |
|
1,524 |
|
5,345 |
|
(1,512) |
|
1,326 |
|
10 |
|
(19,702) |
|
(22) |
|
22 |
Translation differences and other |
|
4,357 |
|
(927) |
|
1,320 |
|
(126) |
|
106 |
|
— |
|
883 |
|
6,666 |
|
(1,053) |
Total |
|
197,648 |
|
166,955 |
|
148,843 |
|
786 |
|
19,004 |
|
584 |
|
116,381 |
|
481,876 |
|
168,325 |
Cost |
|
240,328 |
|
222,734 |
|
285,248 |
|
4,688 |
|
50,114 |
|
1,317 |
|
116,381 |
|
692,071 |
|
228,739 |
Accumulated depreciation and impairment |
|
42,680 |
|
55,779 |
|
136,405 |
|
3,902 |
|
31,110 |
|
733 |
|
— |
|
210,195 |
|
60,414 |
Balance as of December 31, 2022 |
|
197,648 |
|
166,955 |
|
148,843 |
|
786 |
|
19,004 |
|
584 |
|
116,381 |
|
481,876 |
|
168,325 |
The net increase in the net book value of property, plant, and equipment of € 156,363k (December 31, 2022: € 165,604k) is mainly attributed to new buildings technical equipment, and construction in progress. This is due to the continued construction of the J.POD facility in Toulouse, France (increase of € 107,299k).
(9) Intangible assets and Goodwill
-Accounting principles-
Goodwill
The Group measures goodwill at the acquisition date as being the excess of:
If a preceding analysis of a purchase price allocation (PPA) results in the cost of acquisition being less than the fair value of the net assets of the subsidiary acquired, the difference is recognized directly in the Consolidated Income Statement (bargain purchase or negative goodwill).
Intangible Assets
Intangible assets with definite useful lives are recorded at cost and amortized using the straight-line method over the estimated useful lives of the assets.
F-37
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Intangible assets other than goodwill with finite useful lives are tested for impairment whenever there is an indication that the asset may be impaired. If the recoverable amount of the asset is less than the carrying amount, an impairment loss is recognized. If the reason for a previously recognized impairment loss no longer exists, the impairment loss is reversed and the carrying amount of the asset is increased to its amortized cost.
Amortization of other intangible assets is recognized in the income statement within the relevant classification of expense by function.
Impairment losses are recognized separately in the Group´s income statement. The useful lives are as follows:
Trademarks |
|
2 to 10 years |
Developed Technologies |
|
6 to 18 years |
Patents & licenses |
|
5 to 15 years |
Customer List |
|
5 to 8 years |
Internally generated Research and Development (IP R&D)
Internally generated development expenses are recognized as an intangible asset if and only if all the following criteria can be demonstrated:
| ● | technical feasibility of completing the project |
| ● | the Group´s intention to complete the project |
| ● | the Group´s ability to use the project |
| ● | the probability that the project will generate future economic benefits |
| ● | the availability of adequate technical, financial and other resources to complete the project |
| ● | the ability to measure the development expenditure reliably |
Due to the risks and uncertainties relating to regulatory approval and to the research and development process, the six criteria for capitalization are usually considered not to have been met until the product has obtained marketing approval from the regulatory authorities. Consequently, internally generated development expenses arising before marketing approval has been obtained, mainly the cost of clinical trials, are generally expensed as incurred within research and development expenses.
F-38
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Internally generated Development expenditures (other than IP R&D)
Capitalized development expenditures are stated at cost less accumulated amortization and impairment losses. Internally generated development expenses are recognized as an intangible asset if the criteria listed under “Internally generated Research and Development (IP R&D)” are met. They are amortized on a straight-line basis over the estimated useful lives of the intangible assets.
Separately acquired Research and Development (IP R&D)
Payments for separately acquired research and development are capitalized within other intangible assets provided that they meet the definition of an intangible asset:
| ● | expected to provide future economic benefits for the Evotec, |
| ● | a resource that is controlled by Evotec and, |
| ● | identifiable (i.e., it is either separable or arises from contractual or legal rights). |
The Group believes that the first condition for capitalization (the probability that the expected future economic benefits from the asset will flow to the entity) is considered to be satisfied for separately acquired research and development. Consequently, upfront and milestone payments to third parties related to pharmaceutical products for which marketing approval has not yet been obtained are recognized as intangible assets, and amortized on a straight-line basis over their useful lives beginning when marketing approval is obtained.
Payments under research and development arrangements relating to access to technology or to databases, and payments made to purchase generics dossiers, are also capitalized, and amortized over the useful life of the intangible asset. Subcontracting arrangements, payments for research and development services, and continuous payments under research and development collaborations which are unrelated to the outcome of that collaboration, are expensed over the service term.
Other intangible assets not acquired in a business combination
Licenses other than those related to pharmaceutical products and research projects, in particular software licenses, are capitalized at acquisition cost, including any directly attributable cost of preparing the software for its intended use. Software licenses are amortized on a straight-line basis over their useful lives.
Internally generated costs incurred to develop or upgrade software are capitalized if the recognition criteria are satisfied, and amortized on a straight-line basis over the useful life of the software from the date on which the software is ready for use.
Other intangible assets acquired in a business combination
Other intangible assets acquired in a business combination (R&D, technologies and technologies platforms, licenses and patents etc.) that are reliably measurable are identified separately from goodwill, measured at fair value, and capitalized within other intangible assets at the acquisition date and subsequently amortized over their useful lives.
F-39
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Impairment
Goodwill
Goodwill is not amortized but is tested for impairment annually and whenever impairment indicators are identified. Internal or external sources of information are considered indicators that an asset or a Cash Generating Unit (CGU) or groups of CGUs may be impaired. An impairment loss is recognized in the Consolidated Income Statement whenever and to the extent that the carrying amount of a cash generating unit exceeds the unit’s recoverable amount. The recoverable amount is the higher of an asset’s fair value less costs to sell and its value in use.
Intangible Assets
Intangible assets that are subject to amortization are reviewed for impairment whenever triggering events or changes in circumstances indicate that the carrying value may not be recoverable.
-Goodwill-
Balances and movement of Goodwill in 2023 and 2022 are shown below:
|
|
2023 |
||||||||||
|
|
|
|
|
|
|
|
|
|
Translation |
|
|
|
|
At January 1 |
|
Acquisition |
|
Disposals |
|
Impairment |
|
and other |
|
At 31 December |
|
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
OAI/Evotec International Execute |
|
82,223 |
|
— |
|
— |
|
— |
|
1,223 |
|
83,446 |
OAI/Evotec International Innovate |
|
9,164 |
|
41 |
|
— |
|
— |
|
55 |
|
9,219 |
Evotec (US) Execute |
|
4,457 |
|
— |
|
— |
|
— |
|
(155) |
|
4,302 |
Aptuit Execute |
|
146,224 |
|
— |
|
— |
|
— |
|
831 |
|
147,055 |
Just Execute |
|
32,751 |
|
— |
|
— |
|
— |
|
(1,138) |
|
31,613 |
Total |
|
274,819 |
|
41 |
|
— |
|
— |
|
816 |
|
275,635 |
The goodwill addition in financial year 2023 to the OAI/Evotec International Innovate cash-generating unit was a result of the acquisition of the remaining 50% of NephThera GmbH.
|
|
2022 |
||||||||||
|
|
|
|
|
|
|
|
|
|
Translation |
|
|
|
|
At January 1 |
|
Acquisition |
|
Disposals |
|
Impairment |
|
and other |
|
At 31 December |
|
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
OAI/Evotec International Execute |
|
84,480 |
|
— |
|
— |
|
— |
|
(2,257) |
|
82,223 |
OAI/Evotec International Innovate |
|
9,204 |
|
— |
|
— |
|
— |
|
(40) |
|
9,164 |
Evotec (US) Execute |
|
4,197 |
|
— |
|
— |
|
— |
|
260 |
|
4,457 |
Aptuit Execute |
|
128,845 |
|
19,622 |
|
— |
|
— |
|
(2,243) |
|
146,224 |
Just Execute |
|
30,843 |
|
— |
|
— |
|
— |
|
1,908 |
|
32,751 |
Total |
|
257,569 |
|
19,622 |
|
— |
|
— |
|
(2,372) |
|
274,819 |
The Group has tested the cash-generating units for impairment on the annual designated test date in the fourth quarter 2023 based on the net book values as of September 30, 2023. The impairment tests are performed by determining the recoverable amount based on discounted cash flows.
F-40
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The recoverable amount is based either on value in use or fair value less costs to sell in 2022. In 2023, the impairment tests for all cash generating units are based on the value in use methodology in line with achieved progress on expansion investments reflected in the underlying plan.
With the exceptions of Just Execute and OAI / Evotec International Innovate, the estimated future cash flows are based on a strategic plan of up to five years, extrapolated over a simplified transition period to a total forecast period of ten years and then extrapolated using a perpetual rate.
Due to the uncertainty inherent to the proprietary development of drugs in the Innovate business, the CGU OAI / Evotec International Innovate includes a detailed long-term forecast (exceeding 5 years) of success-based payments from the Group’s collaborations (e.g. Milestones, Royalties), including appropriate risk-adjustments.
As the J.POD is a new technology and the corresponding estimated cash flows are subject to a higher degree of uncertainty during the expected high growth in the start-up phase, the estimated future cash flows for the Just Execute cash-generating unit are based on an extended detailed planning period of nine years, after which the cash flows are extrapolated using a perpetual annuity.
Management has identified the cash flow schedule, the terminal value growth rate, and the discount rate as key assumptions to which the recoverable amount is most sensitive.
Management has determined the values for the key assumptions as follows:
Cash flow
The cash flow plan is based on past experience and management’s expectations for the future, taking into account specific expectations regarding revenue and cost allocation, growth rates, gross margins, EBITDA margins and investments.
Long term growth rate
The terminal value growth rate is based on the current estimates of long-term inflation in the regions relevant to the Group’s operations.
Discount rate
The discount rates of the cash-generating units correspond to their weighted average cost of capital before tax, based on capital market data of a peer group
The following tables show the relevant pre-tax discount rate as well as the growth rates used to determine the terminal value in the respective discounted cash flow models.
|
|
OAI / Evotec |
|
OAI / Evotec |
|
Evotec |
|
|
|
|
|
||||||||||
|
|
International |
|
International |
|
(US) |
|
Aptuit |
|
Just |
|
||||||||||
|
|
Execute |
|
Innovate |
|
Execute |
|
Execute |
|
Execute |
|
||||||||||
|
|
2023 |
|
2022 |
|
2023 |
|
2022 |
|
2023 |
|
2022 |
|
2023 |
|
2022 |
|
2023 |
|
2022 |
|
Denominated in |
|
GBP /EUR |
|
GBP /EUR |
|
USD |
|
GBP /EUR |
|
USD |
|
||||||||||
Pre-tax discount rate |
|
11.43 |
% |
10.15 |
% |
13.41 |
% |
11.93 |
% |
10.44 |
% |
9.32 |
% |
14.20 |
% |
13.12 |
% |
12.86 |
% |
11.71 |
% |
Sustainable growth rate |
|
2 |
% |
2 |
% |
2 |
% |
2 |
% |
2 |
% |
2 |
% |
2 |
% |
2 |
% |
2 |
% |
2 |
% |
F-41
Evotec Group
Notes to consolidated financial statements for the financial year 2023
A sensitivity analysis was performed for all cash-generating units with regard to reasonable changes in the key assumptions used for 2023. The analysis was based on a 10% decrease in future cash flows, a 1 percentage point increase in the discount rate or a decrease by one percentage point in the terminal sustainable growth rate. Management concluded that in the event of these changes in key assumptions, no impairment would be recorded for any of the cash- generating units, except Just Execute. For Just Execute, an additional scenario analysis was performed, and no impairment of goodwill was identified.
The following table shows which reasonably possible changes in the key assumptions for Just Execute (base case) would cause its recoverable amount to be equal to its carrying amount.
|
|
2023 |
||||||||||
|
|
Recoverable |
|
|
|
|
|
|
|
Decrease in |
|
Reduction |
|
|
amount exceeding |
|
Applied post-tax |
|
Increase in post-tax |
|
Applied sustainable |
|
sustainable |
|
in cash |
|
|
carrying amount |
|
discount rate |
|
discount rate |
|
growth rate |
|
growth rate |
|
flows |
|
|
in €m |
|
in %-points |
|
in %-points |
|
in %-points |
|
in %-points |
|
in %-points |
Just Execute |
|
5.5 |
|
11.1 |
|
0.1 |
|
2.0 |
|
0.3 |
|
1.3 |
In 2022 management concluded that in the event of possible changes in the key assumptions, no impairment would be recorded for any of the cash-generating units.
In 2023 and 2022, the Company did not recognize any impairment losses as a result of the annual impairment tests.
-Intangible Assets-
The development of intangible assets in 2023 and 2022 is shown in the following tables.
|
|
2023 |
||||||||
|
|
Patents and |
|
Developed |
|
Customer |
|
|
|
|
In k€ |
|
Licenses |
|
Technologies |
|
relationships |
|
Trademarks |
|
Total |
Acquisition and manufacturing cost |
|
|
|
|
|
|
|
|
|
|
Amount beginning of the year |
|
12,883 |
|
100,735 |
|
69,089 |
|
6,539 |
|
189,246 |
Foreign currency translation |
|
(46) |
|
(731) |
|
(327) |
|
|
|
(1,105) |
Additions |
|
— |
|
3,659 |
|
— |
|
— |
|
3,659 |
Business combination |
|
— |
|
— |
|
— |
|
— |
|
— |
Reclassification |
|
(1,672) |
|
1,672 |
|
— |
|
— |
|
— |
Amount end of the year |
|
11,166 |
|
105,334 |
|
68,762 |
|
6,539 |
|
191,800 |
Depreciation, amortization and impairments |
|
|
|
|
|
|
|
|
|
|
Amount beginning of the year |
|
11,349 |
|
94,160 |
|
54,405 |
|
5,513 |
|
165,427 |
Foreign currency translation |
|
10 |
|
(641) |
|
(404) |
|
— |
|
(1,035) |
Additions |
|
84 |
|
822 |
|
5,818 |
|
222 |
|
6,946 |
Impairment |
|
— |
|
5,011 |
|
— |
|
— |
|
5,011 |
Reclass |
|
(1,138) |
|
1,138 |
|
— |
|
— |
|
— |
Amount end of the year |
|
10,304 |
|
100,490 |
|
59,819 |
|
5,735 |
|
176,348 |
Net book value |
|
|
|
|
|
|
|
|
|
|
Amount beginning of the year |
|
1,534 |
|
6,575 |
|
14,684 |
|
1,026 |
|
23,819 |
Amount end of the year |
|
861 |
|
4,844 |
|
8,943 |
|
804 |
|
15,453 |
F-42
Evotec Group
Notes to consolidated financial statements for the financial year 2023
|
|
2022 |
||||||||
|
|
Patents |
|
|
|
|
|
|
|
|
|
|
and |
|
Developed |
|
Customer |
|
|
|
|
In k€ |
|
Licenses |
|
Technologies |
|
relationships |
|
Trademarks |
|
Total |
Acquisition and manufacturing cost |
|
|
|
|
|
|
|
|
|
|
Amount at the beginning of the year |
|
11,211 |
|
99,784 |
|
69,089 |
|
6,539 |
|
186,623 |
Foreign currency Translation |
|
— |
|
34 |
|
— |
|
— |
|
34 |
Additions |
|
— |
|
917 |
|
— |
|
— |
|
917 |
Business Combinations |
|
1,672 |
|
— |
|
— |
|
— |
|
1,672 |
Reclassification |
|
|
|
|
|
|
|
|
|
|
Amount end of the year |
|
12,883 |
|
100,735 |
|
69,089 |
|
6,539 |
|
189,246 |
Depreciation, amortization and impairments |
|
|
|
|
|
|
|
|
|
|
Amount at the beginning of the year |
|
10,182 |
|
92,983 |
|
47,391 |
|
5,216 |
|
155,772 |
Foreign currency translation |
|
— |
|
(438) |
|
45 |
|
— |
|
(393) |
Additions |
|
1,223 |
|
1,559 |
|
6,969 |
|
297 |
|
10,048 |
Impairment |
|
|
|
|
|
|
|
|
|
|
Reclass |
|
(56) |
|
56 |
|
— |
|
— |
|
— |
Amount end of the year |
|
11,349 |
|
94,160 |
|
54,405 |
|
5,513 |
|
165,427 |
|
|
|
|
|
|
|
|
|
|
|
Net Book value |
|
|
|
|
|
|
|
|
|
|
Amount beginning of the year |
|
1,029 |
|
6,801 |
|
21,698 |
|
1,323 |
|
30,851 |
Amount end of the year |
|
1,534 |
|
6,575 |
|
14,684 |
|
1,026 |
|
23,819 |
Intangible assets excluding goodwill decreased by € 8,365k from € 23,819k at December 31, 2022 to € 15,453k at December 31, 2023. This decrease is mainly due to an impairment of an intangible asset within developed technologies amounting to € 5,011k and which is in relation to research and development expenses, and due to the amortization of the Evotec´s customer relationships of € 5,818k, of which € 5,540k relates to Aptuit.
(10) Financial instruments
-Accounting principles-
Non-derivative financial assets
Non-derivative financial assets comprise cash and cash equivalents, receivables and other financial assets including derivatives.
Recognition and initial measurement:
Non-derivative financial assets are recognized when the Group becomes a party to the contractual provisions of the instrument.
Purchases and sales of non-derivative financial assets in the normal course of business are accounted for at the trade date.
Dividend and interest income are recognized when earned. Gains or losses, if any, are recorded in other financial income and other financial expense.
F-43
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Non-derivative financial assets are derecognized when the rights to receive cash flows from the asset have expired or the Group has transferred its rights to receive cash flows from the asset. At initial recognition, the Group measures non-derivative financial assets at their fair value, plus, in the case of a financial asset not measured at fair value through profit or loss (FVTPL), transaction costs that are directly attributable to the acquisition of the financial asset. Transaction costs of financial assets carried at FVTPL are expensed in the Consolidated Income Statement.
Classification and subsequent measurement:
The Group classifies its non-derivative financial assets in the following measurement categories:
| ● | those that are measured subsequently at fair value; |
| ● | those that are measured at amortized cost. |
In assessing the classification, the Group considers the business model for managing the financial assets and the contractual terms of the cash flows.
For assets measured at fair value, gains and losses will be recorded in either the Consolidated Income Statement (FYTPL) or in Other Comprehensive Income (FYTOCI).
For debt investments, assets are reclassified between FVTOCI, FVTPL and amortized cost only when its business model for managing those assets changes.
Offsetting of financial instruments
Financials assets and liabilities are only offset, and the net amount presented in the consolidated statement of financial position when, and only when, the Group has the legal right to offset the amounts and either to settle on a net basis or to realize the asset and settle the liability simultaneously.
Cash and cash equivalents
Cash and cash equivalents include cash balances, certain money market funds and short-term highly liquid investments with an original maturity of three months or less that are readily convertible into known amounts of cash.
Other financial assets
Other financial assets include convertible loans, derivatives and deposits.
Debt instruments
Debt instruments include those subsequently carried at amortized cost, those carried at FVTPL or those carried at FVTOCI.
Classification depends on the Group’s business model for managing the asset and the cash flow characteristics of the asset.
Debt instruments that are held for collection of contractual cash flows, where those cash flows represent solely payments of principal and interest, are measured at amortized cost and are subject to impairment. Interest income from these financial assets is included in Finance income using the effective interest rate method.
F-44
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Financial assets with embedded derivatives are considered in their entirety when determining whether their cash flows are solely payment of principal and interest.
When the Group determines that an embedded derivative meets the requirement, it is separated from the host contract and accounted for as a derivative.
Debt instruments that are held for collection of contractual cash flows and for selling the financial assets, where the assets’ cash flows represent solely payments of principal and interest, are measured at FVTOCI and subject to impairment.
Movements in the carrying amounts are taken through OCI, except for the recognition of impairment gains or losses, interest revenue and foreign exchange gains and losses, which are recognized in the Consolidated Income Statement.
When the financial asset is derecognized, the cumulative gain or loss previously recognized in OCI is reclassified from equity to the Consolidated Income Statement. Interest income from these financial assets is included in financial income using the effective interest rate method. Debt instruments that do not meet the criteria for amortized cost or FVTOCI are measured at FVTPL. A gain or loss on a debt investment that is subsequently measured at FVTPL is recognized in the Consolidated Income Statement in the period in which it arises.
Other Equity investments where the Group does not possess control or significant influence
For those equity investments over which the Group has neither control nor significant influence and which are therefore measured in accordance with IFRS 9, classification will depend on whether the Group has made an irrevocable election at the time of initial recognition to account for the equity investment at fair value through other comprehensive income (FVTOCI).
For those equity investments over which the Group has neither control nor significant influence and which are therefore measured in accordance with IFRS 9, both FVTOCI and FVTPL, the Group follows the following hierarchy determined by the unique nature of the investments. Observable market prices are the primary method when available. When these are not available but there has been an external financing round or a capital transaction with a new investor of the equity investment in which the Group did not participate, this would be taken into account.
In the absence of such an event, the Group assesses qualitative factors, such as scientific progress, as well as an analysis of the cash position of the investment. In case of promising scientific development, the acquisition costs are considered to be the best estimate of the fair value. Should the investment be a possible going concern risk with no further positive qualitative factors, the Group uses Net Asset Value as a proxy for the fair value of the investment.
The investments in early-stage companies are mainly of a strategic nature and are made for the purpose of promoting new business models and, in particular, the development of products and/or technology platforms in pharmaceutical research.
Where the Group has elected to present fair value gains and losses on equity investments in OCI, there is no subsequent reclassification of fair value gains and losses to the Consolidated Income Statement following the derecognition of the investment. Dividends (if any) from such investments continue to be recognized in the Consolidated Income Statement when the Group’s right to receive payments is established.
F-45
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Debt and other financial liabilities
Debt and other financial liabilities, excluding derivative financial liabilities and provisions, are initially measured at fair value and, in the case of debt and payables, net of directly attributable transaction costs. Debt and other financial liabilities are subsequently measured at amortized cost using the effective interest rate method. Amortized cost is calculated by taking into account any discount or premium on acquisition and fees or costs that are an integral part of the effective interest rate.
Debt and other financial liabilities are derecognized when the obligation under the liability is discharged, cancelled or has expired.
Derivative financial instruments
All derivative financial instruments are accounted for at the trade date and classified as current or non-current assets or liabilities based on the maturity date or the early termination date.
The Group measures all derivative financial instruments at fair value that is derived from the market prices of the instruments, calculated on the basis of the present value of the estimated future cash flows based on observable interest yield curves, basis spread, credit spreads and foreign exchange rates, or derived from option pricing models, as appropriate.
Gains or losses arising from changes in fair value of derivative financial instruments are recognized in the Consolidated Income Statement. The Group does not apply hedge accounting in accordance with IFRS 9.
Impairment of financial assets
The Group recognizes an allowance for expected credit losses (ECLs) for trade receivables, debt investments carried at fair value through other comprehensive income (FVTOCI) and amortized costs. ECLs are based on the difference between the contractual cash flows due in accordance with the contract and all the cash flows that the Group expects to receive.
For all trade receivables and contract assets, the Group applies the IFRS 9 simplified approach to measuring ECLs.
To measure the ECLs on trade receivables and contract assets, the Group takes into account credit-risk concentration, collective debt risk based on average historical losses as well as days past due.
The Group also may factor in specific circumstances such as serious adverse economic conditions in a specific country or region, and other forward-looking information.
The Group may also apply individual credit losses on identified trade account receivables or contract assets depending on individual circumstances.
Other financial income and expense
Financial income comprises interest income on funds invested (including financial assets), dividend income, net gains on the disposal of financial assets, net fair value gains on financial assets at FVTPL, net gains on the remeasurement to fair value of any pre-existing interest in an acquiree, and net gains on foreign exchange impacts that are recognized in the Consolidated Income Statement.
Other financial income is recognized on an accrual basis in the Consolidated Income Statement, using the effective interest method. Dividend income is recognized in the Consolidated Income Statement on the date that the Group’s right to receive payment is established, which in the case of quoted securities is normally the ex-dividend date.
F-46
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Other financial expenses comprise interest expenses on borrowings, unwinding of the discount on provisions and contingent consideration, losses on disposal of financial assets, net fair value losses on financial assets at FVTPL, impairment losses recognized on financial assets (other than trade receivables), net interest expenses related to defined-benefit plans, interest on lease liabilities and net losses on foreign exchange impacts that are recognized in the Consolidated Income Statement.
Evotec’s interest expenses relate primarily to financial liabilities measured at amortized cost.
-Cash and cash equivalents and short-term investments-
The balances of cash and cash equivalents as of 31 December are as follows:
In k€ |
|
2023 |
|
2022 |
Cash at banks and on hand |
|
237,562 |
|
231,614 |
Short term deposits |
|
35,000 |
|
— |
Money market funds |
|
238,346 |
|
183,540 |
Total |
|
510,909 |
|
415,155 |
As of December 31, 2023 the Group´s balance of cash and cash equivalents and investments is € 604,112k (December 31, 2022: € 718,489k), thereof short-term investments of € 93,203k (December 31, 2022: € 303,334k). Fixed-term investments are measured at amortized cost and bonds are measured at fair value through OCI (note 15). Money market funds that are classified under cash and cash equivalents are measured at FVOCI. While managing liquidity, the Group is investing in deposits with maturities beyond three months which are also included in investments. These deposits are measured at amortized costs.
As of December 31, 2023, the expected credit loss on cash and cash equivalents and short-term investments has remained unchanged compared to last year (December 31, 2022: € 225k).
As of December 31, 2023, € 11,819k of the cash balances with credit institutions were restricted (December 31, 2022: € 14,458k). This amount includes grants for specific projects and rent deposits.
-Other current financial assets-
Other current financial assets include mainly convertible loans, interest receivables and deposits. In addition, this position also comprises the positive fair values of forward exchange contracts which amount to € 6,137k as of December 31, 2023 (December 31, 2022: € 8,215k).
-Other long-term investments-
The development of investments measured at fair value in accordance with IFRS 9 is shown below:
In k€ |
|
2023 |
|
2022 |
Balance at January 1 |
|
131,042 |
|
268,793 |
Additions |
|
10,199 |
|
46,137 |
Additions due to discontinued use of equity method |
|
1,906 |
|
— |
Reduction due to change to accounting according to the equity method |
|
(2,369) |
|
— |
Fair value adjustments recognized in profit or loss |
|
(3,678) |
|
(172,159) |
Adjustments to fair value, recognized in OCI |
|
(1,506) |
|
(11,729) |
Net book value December 31 |
|
135,593 |
|
131,042 |
F-47
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The loss of € 1,506k due to fair value adjustments recognized in other comprehensive income includes a loss of € 1,080k from financial assets designated at fair value through other comprehensive income.
Investments are periodically reviewed for changes in their fair value. The fair value adjustments of € (3,678)k mainly relate to measurement losses of € 14,958k which were partially offset by a measurement gain of € 11,280k relating to Exscientia Ltd whose share price increased from USD 5.33 on December 31, 2022 to USD 6.41 on December 31, 2023.
-Loan liabilities-
Throughout the years 2023 and 2022, the Group met all covenants under the various loan agreements shown below. All loans are unsecured.
|
|
|
|
|
|
|
|
December 31, |
||||||
|
|
|
|
|
|
|
|
2023 |
|
2023 |
|
2022 |
|
2022 |
|
|
|
|
Nominal interest |
|
Maturity |
|
Fair |
|
Carrying |
|
Fair |
|
Carrying |
Country of lender |
|
Currency |
|
Rate |
|
until |
|
Value |
|
amount |
|
Value |
|
amount |
|
|
|
|
|
|
|
|
k€ |
|
k€ |
|
k€ |
|
k€ |
Germany |
|
EUR |
|
fixed interest rate of 0.8 % to 2 % |
|
2024-2029 |
|
202,727 |
|
243,583 |
|
137,278 |
|
150,171 |
Germany |
|
EUR |
|
variable interest rate of 4.8% to 5% |
|
2024-2026 |
|
64,088 |
|
64,500 |
|
61,003 |
|
64,500 |
Germany |
|
EUR |
|
1.60% |
|
2024-2027 |
|
67,631 |
|
75,000 |
|
71,846 |
|
75,000 |
Germany |
|
EUR |
|
1.20% |
|
2029 |
|
5,010 |
|
5,647 |
|
6,358 |
|
6,722 |
Germany |
|
EUR |
|
1.40% |
|
2031 |
|
15,814 |
|
18,458 |
|
19,099 |
|
20,367 |
Italy |
|
EUR |
|
fixed interest rate of 1.3 % to 4.5 % |
|
2026-2027 |
|
340 |
|
367 |
|
729 |
|
757 |
Italy |
|
EUR |
|
variable interest rate 4.5% |
|
2027 |
|
421 |
|
434 |
|
489 |
|
500 |
France |
|
EUR |
|
fixed interest rate of 0.00% to 0.55 % |
|
2025 |
|
23,216 |
|
27,876 |
|
10,038 |
|
10,742 |
|
|
|
|
|
|
|
|
379,247 |
|
435,865 |
|
306,840 |
|
328,759 |
Current loan liabilities as of December 31, 2023 include interest liabilities of € 1,193k (December 31, 2022: € 1,092k).
As of December 31, 2023, the Group maintained unutilized lines of credit totaling € 141,086k (December 31, 2022: € 245,509k). On December 29, 2022, the Group signed a facility agreement of € 150,000k with the European Investment Bank (EIB). As of December 31, 2023, the Group has drawn € 93,290k from this facility agreement.
-Leases-
The Group has lease contracts for various items of real estate, vehicles and other equipment used in its operations. The Group has multiple extension and termination options in a number of lease contracts. These are used to maximize operational flexibility in terms of managing the assets used in the Group’s operations. The options considered reasonably certain are part of lease liabilities. However, the options not considered reasonably certain are not part of lease liability, which exposes the Group to potential future cash outflows. Future cash outflows for leases that have not yet begun are set out in the explanation “(18) Commitments and contingencies”. In addition, the Group is not committed to leases not yet commenced. The Group’s lease contracts do not contain any financial covenants.
F-48
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Set out below are the carrying amounts of the lease liabilities and the movements during the period:
In k€ |
|
2023 |
|
2022 |
Amount beginning of the year |
|
176,823 |
|
150,437 |
Foreign currency Translation |
|
(958) |
|
(923) |
Additions |
|
33,975 |
|
38,784 |
Business combination |
|
— |
|
3,962 |
Disposals |
|
(4,086) |
|
(232) |
Accretion of interest |
|
5,831 |
|
3,841 |
Payments |
|
(22,446) |
|
(19,046) |
Amount end of the year |
|
189,140 |
|
176,823 |
The lease liabilities of the Company are due as follows:
|
|
|
|
|
In k€ |
|
2023 |
|
2022 |
Current portion of lease obligations |
|
19,115 |
|
14,825 |
Long-term lease obligations |
|
170,025 |
|
161,998 |
|
|
189,140 |
|
176,823 |
The Group’s cash outflows for leases amounted to € 22,446k in 2023 (2022: € 19,046k; 2021: € 20,665k).
The following amounts are recognized in profit or loss:
in k€ |
|
2023 |
|
2022 |
|
2021 |
Depreciation expense of right-of-use assets |
|
21,075 |
|
18,659 |
|
15,829 |
Interest expense on lease liability |
|
5,831 |
|
3,841 |
|
3,728 |
Expense relating to short-term leases |
|
236 |
|
476 |
|
839 |
Expense for leases on an asset of low value |
|
62 |
|
50 |
|
56 |
Total amount recognized in profit or loss |
|
27,205 |
|
23,026 |
|
20,452 |
F-49
Evotec Group
Notes to consolidated financial statements for the financial year 2023
-Reconciliation of cash flow from financing activities-
The following tables show the reconciliation of cash flow from financing activities to changes in financial liabilities in 2023 and 2022.
|
|
Loans |
|
Lease Obligations |
|
Bonds |
|
|
k€ |
|
k€ |
|
k€ |
Balance as of Jan 1, 2023 |
|
329,851 |
|
176,823 |
|
3 |
Proceeds from issuance of loans |
|
219,923 |
|
— |
|
— |
Repayments |
|
(112,880) |
|
(22,446) |
|
— |
Interest paid |
|
(12,853) |
|
— |
|
— |
Cashflow from financing activities |
|
94,189 |
|
(22,446) |
|
— |
Non-cash transactions: |
|
|
|
|
|
|
Disposal of finance lease obligation |
|
— |
|
(4,086) |
|
— |
Foreign currency translation |
|
— |
|
(958) |
|
— |
Interest expense |
|
11,739 |
|
— |
|
— |
Change in accrued interest and other |
|
1,279 |
|
5,831 |
|
— |
Issue of finance lease obligation |
|
— |
|
33,975 |
|
— |
Balance as of Dec 31, 2023 |
|
437,058 |
|
189,140 |
|
3 |
|
|
|
|
|
|
|
|
|
Loans |
|
Lease Obligations |
|
Bonds |
|
|
k€ |
|
k€ |
|
k€ |
Balance as of Jan 1, 2022 |
|
362,480 |
|
150,438 |
|
3 |
Proceeds from issuance of loans |
|
— |
|
— |
|
— |
Repayments |
|
(34,067) |
|
(19,046) |
|
— |
Interest paid |
|
(5,731) |
|
— |
|
— |
Cashflow from financing activities |
|
(39,798) |
|
(19,046) |
|
— |
Non-cash transactions: |
|
|
|
|
|
|
Disposal of finance lease obligation |
|
— |
|
(232) |
|
— |
Foreign currency translation |
|
— |
|
(1,120) |
|
— |
Interest expense |
|
9,083 |
|
— |
|
— |
Change in accrued interest and other |
|
(1,914) |
|
4,068 |
|
— |
Issue of finance lease obligation |
|
— |
|
42,716 |
|
— |
Balance as of Dec 31, 2022 |
|
329,851 |
|
176,823 |
|
3 |
-Current financial liabilities-
Current financial liabilities of € 149,096k in 2023 (2022: € 23,468k) consist of current loan liabilities of € 129,971k (2022: € 1,556k), current portion of lease obligations of € 19,115k (2022: € 14,825k) as well as other current financial liabilities of € 10k (2022: € 7,087k). Other current financial liabilities relate to negative fair values of forward exchange contracts.
(11) Investments accounted for using the equity method
-Accounting Principles-
The Group, in the course of its business, may enter into arrangements where it will exercise joint control over entities resulting in classifying these operations as joint ventures or joint operations depending on the rights and obligations arising from the contractual arrangement.
F-50
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Alternatively, it may enter into arrangements where it holds 20 to 50 percent of the voting rights and exercises significant influence resulting in these companies being classified as associate companies.
Investments in associates and joint ventures are accounted for using the equity method.
The Group’s share of profit of joint ventures is classified within non-operating profit as these operations do not form an integral part of the Group’s financial performance, reflecting its non-core business activities.
The Group’s share of profit (loss) of associates is classified below Operating profit.
Goodwill arising from an acquisition is included in the carrying amount of the investments in joint ventures and associated companies.
Equity accounting is discontinued when the carrying amount of the investment together with any long-term interest in a joint venture or in an associate reaches zero, unless the Group has either incurred or guaranteed additional obligations in respect of the joint venture or associate.
Impairment of Joint Ventures and Associates
The Group tests investments in joint ventures and associates for which it does not possess control but has significant influence for impairment on a regular basis and when there is objective evidence of impairment as a result of one or more events that occurred after the initial recognition of the net investment.
Objective evidence of impairment includes but is not limited to the net asset value being below carrying amount, absence of scientific progress, significant financial difficulties of the joint venture, associate or information about significant changes with an adverse effect that have taken place in the economic environment in which it operates and indicates that the carrying amount may not be recovered.
-Investment in associates-
Individually immaterial shares in companies accounted for using the equity method are presented in aggregate, provided that at the balance sheet date the equity book value did not exceed € 10,000k or Evotec’s share of earnings in the result (Share of profit in associate and Impairment combined) were less than € 1,000k in the company’s profit or loss. At the balance sheet date, six investments were classified as significant, and four investments were classified as insignificant.
The additions to the significant investments in 2023 are entirely related to financing rounds (capital contributions).
F-51
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The following table summarizes the development of the investments in associates during year 2023:
|
|
|
|
Centauri |
|
|
|
Dark Blue |
|
Topas |
|
Tucana |
|
|
|
|
|
|
Autobahn |
|
Therapeutics |
|
Curexsys |
|
Therapeutics |
|
Therapeutics |
|
Bioscienes |
|
Insignificant |
|
|
In k€ |
|
Labs LLC |
|
GmbH |
|
GmbH |
|
Ltd. |
|
GmbH |
|
Inc. |
|
investments |
|
Total |
Balance at January 1, 2023 |
|
1,371 |
|
— |
|
3,967 |
|
4,022 |
|
405 |
|
2,325 |
|
3,954 |
|
16,043 |
Investment |
|
2,360 |
|
3,455 |
|
— |
|
— |
|
2,023 |
|
— |
|
— |
|
7,838 |
Share of profit in associate |
|
(3,730) |
|
(309) |
|
(968) |
|
(4,022) |
|
(2,428) |
|
(775) |
|
(650) |
|
(12,881) |
Impairment |
|
— |
|
(3,336) |
|
(2,999) |
|
— |
|
— |
|
(579) |
|
(960) |
|
(7,875) |
Dividend earned |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
(424) |
|
(424) |
Divestment |
|
— |
|
— |
|
— |
|
— |
|
— |
|
(970) |
|
— |
|
(970) |
Reclassification due to change of control |
|
— |
|
2,369 |
|
— |
|
— |
|
— |
|
— |
|
(1,029) |
|
1,341 |
Balance at December 31, 2023 |
|
— |
|
2,179 |
|
— |
|
— |
|
— |
|
— |
|
892 |
|
3,071 |
The following table provides an overview of the development of the investments in 2022:
|
|
|
|
Breakpoint |
|
|
|
Dark Blue |
|
Quantro |
|
Topas |
|
|
|
|
|
|
Autobahn |
|
Therapeutics |
|
Curexsys |
|
Therapeutics |
|
Therapeutics |
|
Therapeutics |
|
Insignificant |
|
|
In k€ |
|
Labs LLC |
|
GmbH |
|
GmbH |
|
Ltd. |
|
GmbH |
|
GmbH |
|
investments |
|
Total |
Balance at January 1, 2022 |
|
— |
|
2,774 |
|
4,212 |
|
405 |
|
1,307 |
|
1,497 |
|
2,873 |
|
13,068 |
Investment |
|
3,634 |
|
— |
|
2,564 |
|
7,167 |
|
1,250 |
|
1,821 |
|
2,505 |
|
18,940 |
Share of profit in associate |
|
(2,263) |
|
(2,774) |
|
(2,809) |
|
(3,550) |
|
(510) |
|
(2,913) |
|
(1,147) |
|
(15,965) |
Impairment |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Dividend earned |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Divestment |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Reclassification due to change of control |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
Balance at December 31, 2022 |
|
1,371 |
|
— |
|
3,967 |
|
4,022 |
|
2,047 |
|
405 |
|
4,231 |
|
16,043 |
Further financial information on the significant investments accounted for using the equity method is presented below:
2023
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Centauri |
|
|
|
Dark Blue |
|
Quantro |
|
|
Autobahn |
|
Therapeutics |
|
Curexsys |
|
Therapeutics |
|
Therapeutics |
In k€ |
|
Labs LLC |
|
GmbH |
|
GmbH |
|
Ltd. |
|
GmbH |
Current assets |
|
1,272 |
|
9,451 |
|
1,071 |
|
4,321 |
|
613 |
Non-current assets |
|
727 |
|
— |
|
421 |
|
248 |
|
5,072 |
Current liabilities |
|
2,257 |
|
— |
|
148 |
|
1,087 |
|
2,902 |
Non-current liabilities |
|
— |
|
— |
|
— |
|
9,098 |
|
483 |
Revenues from Jan 1 to Dec 31 |
|
— |
|
597 |
|
— |
|
— |
|
2,353 |
Net income Jan 1 to Dec 31 |
|
(10,667) |
|
(3,448) |
|
(2,176) |
|
(9,210) |
|
(890) |
Share of profit in associate |
|
(3,730) |
|
(309) |
|
(968) |
|
(4,022) |
|
(194) |
F-52
Evotec Group
Notes to consolidated financial statements for the financial year 2023
2022
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Breakpoint |
|
|
|
Dark Blue |
|
Quantro |
|
Topas |
|
|
Autobahn |
|
Therapeutics |
|
Curexsys |
|
Therapeutics |
|
Therapeutics |
|
Therapeutics |
In k€ |
|
Labs LLC |
|
GmbH |
|
GmbH |
|
Ltd. |
|
GmbH |
|
GmbH |
Current assets |
|
4,029 |
|
7,204 |
|
3,409 |
|
14,244 |
|
4,392 |
|
6,795 |
Non-current assets |
|
6 |
|
2 |
|
484 |
|
32 |
|
445 |
|
— |
Current liabilities |
|
672 |
|
1,068 |
|
302 |
|
1,065 |
|
1,666 |
|
843 |
Non-current liabilities |
|
— |
|
143 |
|
85 |
|
8,208 |
|
— |
|
— |
Revenues from Jan 1 to Dec 31 |
|
— |
|
— |
|
15 |
|
— |
|
1,321 |
|
— |
Net income Jan 1 to Dec 31 |
|
(6,144) |
|
(11,789) |
|
(6,940) |
|
1,025 |
|
(797) |
|
(9,340) |
Share of profit in associate |
|
(2,263) |
|
(2,774) |
|
(2,809) |
|
(3,550) |
|
(510) |
|
(2,913) |
(12) Employment, Post-Employment Benefits and Share Compensation Plans
-Accounting Principles-
Short-term employee benefits
Short-term employment obligations are measured on an undiscounted basis and are expensed as the related service is provided. The Group recognizes a liability and an expense for bonuses and incentives based on a formula that takes into consideration the profit attributable to the Group´s shareholders after certain adjustments.
Defined contributions schemes
A defined-contribution plan is a post-employment benefit plan under which an entity pays fixed contributions into a separate entity and will have no legal or constructive obligation to pay further amounts. Obligations for contributions to defined-contribution pension plans are recognized as an employee benefit expense in the income statement in the periods during which services are rendered by employees. The Group´s contribution rate is employee-specific and depends on the amount of an employee’s contribution and the relevant legislation.
Defined benefits schemes and Jubilee provisions
A defined-benefit plan is a post-employment benefit plan other than a defined-contribution plan. Plans for which the Group has no legal or constructive obligation to pay further amounts, but to which it does pay non-fixed contributions, are also treated as a defined-benefit plan.
The net pension asset or liability recognized in the consolidated statement of financial position in respect of defined-benefit post-employment plans is the fair value of plan assets less the present value of the projected defined-benefit obligation at the balance sheet date.
The defined-benefit obligation is calculated annually by qualified actuaries using the projected unit credit method. Recognized assets are limited to the present value of any reductions in future contribution or any future refunds.
F-53
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The net pension liability (asset) is presented as a long-term provision; no distinction is made for the short-term portion. Pension costs in respect of defined-benefit post-employment plans primarily represent the increase of the actuarial present value of the obligation for post-employment benefits based on employee service during the year and the interest on the net recognized asset or liability in respect of employee service in previous years. Remeasurements of the net defined-benefit asset or liability comprise actuarial gains and losses, the return on plan assets (excluding interest) and the effect of the asset ceiling (excluding interest). The Group recognizes all remeasurements in other comprehensive income and reclassifies them later to the Group´s income statement.
The Group recognizes gains and losses on the settlement of a defined-benefit plan when the settlement occurs. The gain or loss on settlement is the difference between the present value of the defined-benefit obligation being settled, as determined on the date of settlement, and the settlement price, including any plan assets transferred and any payments made directly by the Group in connection with the settlement. Past service costs arising from the introduction of a change to the benefit payable under a plan or a significant reduction of the number of employees covered by a plan (curtailment) are recognized in full in the consolidated income statement.
The Group´s net obligation in respect of long-term employee benefits is the amount of future benefit that employees have earned in return for their service in the current and prior periods, such as jubilee entitlements. That benefit is discounted to determine its present value. Remeasurements are recognized in the consolidated income statement in the period in which they arise.
Other long term employment benefits
Other long-term employment benefits include long-service leave or sabbatical leave, medical aid, jubilee or other long-service benefits, long-term disability benefits and, if they are not expected to be settled wholly within twelve months after the year end, profit sharing, variable and deferred compensation. The measurement of these obligations differs from defined benefit plans in that all remeasurements are recognized immediately in the statement of income.
Stock Options and Share Performance Awards
The Group operates various equity-settled share-based compensation plans for which the Company applies the regulations of IFRS 2. The fair value of the employee services received in exchange for the grant of the options or shares is recognized as an expense. The total amount to be expensed is determined by reference to the fair value of the equity instruments granted. The amounts are charged to the income statement over the relevant vesting periods and adjusted to reflect actual and expected levels of vesting. The cost of equity-settled transactions is determined by the fair value at the date when the grant is made using an appropriate valuation model.
All plans are settled in shares. The grant-date fair value of equity-settled share-based payment awards granted to employees is recognized as personnel expense, with a corresponding increase in equity, over the vesting period of the award.
The cumulative expense recognized for equity-settled transactions at each reporting date until the vesting date reflects the extent to which the vesting period has expired and the Group’s best estimate of the number of equity instruments that will ultimately vest.
The expense or credit in the consolidated income statement for a period represents the movement in cumulative expense recognized at the beginning and end of that period. Service and non-market performance conditions are not taken into account when determining the grant-date fair value of awards, but the likelihood of the conditions being met is assessed as part of the Group´s best estimate of the number of equity instruments that will ultimately vest. Market performance conditions are reflected within the grant-date fair value.
F-54
Evotec Group
Notes to consolidated financial statements for the financial year 2023
No expense is recognized for awards that do not ultimately vest because non-market performance and/or service conditions have not been met.
When an award is cancelled by the entity or by the counterparty, any remaining element of the fair value of the award is expensed immediately through profit or loss. The dilutive effect of outstanding options and shares is reflected as additional share dilution in the computation of diluted earnings per share.
-Defined contribution schemes-
The Group operates a defined contribution plan in the United Kingdom and makes additional contributions to employees’ own schemes. The pension charge for the year represents contributions payable by the Group to the fund (and to the employees’ own pension schemes) and amounted to € 3,926k in 2023 (2022: € 3,346k).
The Group operates defined contribution (401(k)) plans in the US and made contribution of € 1,784k during 2023 (2022: € 575k).
-Defined benefit schemes and jubilee provision-
Germany
The Group has a defined benefit scheme for one former member of the Management Board of Evotec SE and for Evotec DS.
The provisions for both companies amounted to € 645k as of December 31, 2023 (2022: € 722k).
France
The Group runs a jubilee scheme where a lump sum payment is provided to all employees upon retirement. The amount is dependent on different factors such as years of service with the company, compensation at retirement age (between age of 63 and 65) and collective agreements. This is a legal requirement.
The Group also runs a work anniversary awards agreement. The lump sum amount is defined by the collective agreement and based on the number of years of service with the Group.
The Group operates a defined benefit plan for employees in France. Due to a pension reform in France the Group recorded a gain of € 830k in Past service costs. The mortality tables (issued by INSEE TD/TV 2017 ‐ 2019) were applied in the actuarial report that is used for measuring the French employee benefit obligations.
F-55
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The movement in employee benefit obligations of the French entities is broken down as follows:
|
|
2023 |
|
2022 |
|
|
Present |
|
Present |
|
|
value of |
|
value of |
In k€ |
|
obligation |
|
obligation |
As of January 1 |
|
(14,499) |
|
(15,310) |
Benefit payments from the employer |
|
617 |
|
749 |
Current service cost |
|
(1,266) |
|
(1,361) |
Past service costs |
|
830 |
|
— |
Operating costs, net |
|
(436) |
|
(1,361) |
Interest expense (income) |
|
(428) |
|
(116) |
Amount recognized in the Income Statement |
|
(864) |
|
(1,478) |
Remeasurements: |
|
|
|
|
(Gain)/loss from change in demographic assumptions |
|
(12) |
|
(11) |
(Gain)/loss from change in financial assumptions |
|
(105) |
|
2,033 |
(Gain)/loss from experience |
|
(8) |
|
(483) |
Amounts recognized in Other Comprehensive Income |
|
(125) |
|
1,539 |
As of December 31 |
|
(14,872) |
|
(14,499) |
¹ For the financial year 2023, this table includes retiring allowances as well as long service awards for France whereas the table on the employee benefit obligations in published annual report 2022 included only pensions but for France and Germany. The previous year figures have been adjusted accordingly.
The following table shows the significant assumptions which have been applied in the measurement of the employee benefit obligations:
|
|
Discount Rate |
|
Salary Increase |
|
||||
% |
|
2023 |
|
2022 |
|
2023 |
|
2022 |
|
France |
|
3.25 |
% |
3.35 |
% |
3.00 |
% |
3.00 |
% |
If the below parameters would increase/decrease by 0.5%, the benefit obligations would change as follows:
|
|
2023 |
|
2022 |
||||
|
|
Increase |
|
Decrease |
|
Increase |
|
Decrease |
+0.5/-0.5% |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
Discount rate |
|
648 |
|
(702) |
|
598 |
|
(645) |
Salary increase |
|
(701) |
|
652 |
|
— |
|
— |
The average duration of the pension plan is 9.1 years, and the average duration of the long service awards is 12.5 years as of December 31, 2023. (2022 respectively 9.1 years and 12.5 years). The expected service costs for 2024 amount to € 1,389k.
Expenses for the statutory retirement obligations are explained in Note (5).
F-56
Evotec Group
Notes to consolidated financial statements for the financial year 2023
-Share performance awards-
In order to continue to incentivize executives in the form of variable compensation components with long-term incentives, in June 2022, June 2020 and June 2017, the Annual General Meeting approved the respective conditional capital required for the so-called Restricted Share Plan 2020 (“RSP 2020”) as well as the so-called Share Performance Plan 2022 (“SPP 2022”) and Share Performance Plan 2017 (“SPP 2017”). Under these plans, Restricted Share Awards (“RSA”) for up to 1,200,000 shares (RSP 2020) and Share Performance Awards (“SPA”) for up to 6,000,000 shares (SPP 2022) and 6,000,000 shares (SPP 2017) of Evotec SE ordinary bearer shares without par value (no-par value shares) may be issued to members of the Management Board and other executives upon maturity. Each RSA grants one subscription right to Evotec SE shares, while each SPA grants up to two subscription rights to Evotec SE shares, each of which in turn entitles the holder to subscribe for one Evotec SE share.
SPAs from SPP 2022 and SPP 2017 will be automatically exercised within 10 trading days after the end of the four-year holding period, while RSAs from RSP 2020 can be exercised at the earliest after four years and up to five years after the respective issue date. The RSAs will also be automatically exercised at the end of the five-year period if no exercise has been made. The holder must contribute €1.00 per share at the time of exercise under all plans described above.
RSAs under RSP 2020 may only be exercised if and to the extent that the performance target is achieved within each of the four consecutive calendar years. This performance target relates to the Company’s adjusted EBITDA. The performance target for each individual tranche of RSAs is set by the Supervisory Board annually at the time of issue. The Restricted Share Plan 2020 is subject to some restrictions with regard to issuance periods and allocation of awards to members of the Executive Board or selected executives. The RSP 2020 is no longer part of the new 2022 compensation system for the Executive Board and no more restricted share awards have been issued for the Executive Board since its effective date on June 22, 2022. The grant value of the Restricted Share Plan 2020 for the Executive Board has been reallocated to the short-term and long-term (“Share Performance Plan 2022”) compensation components.
SPAs from SPP 2022 and SPP 2017 can only be exercised if and to the extent that two defined equally weighted performance targets (“Key Performance Indicators”) are achieved within each of the four consecutive calendar years. These performance indicators consist of Evotec’s share price (relevant here is the XETRA price) and the relative total shareholder return for the SPP 2017, which is derived by comparison with the return of the TecDax index. For the SPP 2022 the performance indicators consist of the relative total shareholder return and revenue growth weighted equally. Additionally, the achievement of the KPIs of the SPP 2022 is dependent on an ESG-performance target. The performance targets for each individual tranche of the SPAs are set by the Supervisory Board annually at the time of issue. The Share Performance Plan 2022 and the Share Performance Plan 2017 are subject to certain restrictions with regard to issuance periods and allocation of awards to members of the Executive Board or selected executives.
On February 14, 2023, Evotec’s Management Board approved the U.S. Restricted Share Unit Plan (“U.S. RSU Plan”). The U.S. RSU Plan became effective May 31, 2023. The U.S. RSU Plan provides for the grant of restricted share units, which payment may be granted in the form of shares, American depository shares, each representing one-half of one Evotec SE ordinary share (ADSs), or cash amounts as the Management Board determines to be consistent with best interests of the Company, Evotec and its shareholders and in accordance with the purpose of the U.S. RSU Plan. The Group accounts for the U.S RSU Plan as settled in shares. The number of restricted share units granted in the 12 months period ended December 31, 2023 totaled 603.161. The exercise of the share units under the RSU does not require the achievement of any Key Performance Indicators. Therefore, the fair value of these share units of 9.50 USD has been determined based on the share price on the grant date and an assumed fluctuation rate of 5%.
F-57
Evotec Group
Notes to consolidated financial statements for the financial year 2023
A summary of the status of the Share Performance Plans as of December 31, 2023 and 2022 and the changes during the year then ended is presented as follows:
|
|
December 31 |
||||||||||
|
|
2023 |
|
2023 |
|
2022 |
|
2022 |
|
2021 |
|
2021 |
|
|
Share |
|
Weighted |
|
Share |
|
Weighted |
|
Share |
|
Weighted |
|
|
Performance |
|
average |
|
Performance |
|
average |
|
Performance |
|
average |
in k€ |
|
(Awards SPAs) |
|
exercise price |
|
(Awards SPAs) |
|
exercise price |
|
(Awards SPAs) |
|
exercise price |
|
|
in thousands |
|
in € per share |
|
in thousands |
|
in € per share |
|
in thousands |
|
in € per share |
Granted SPAs at the beginning of the year |
|
1,505 |
|
1.00 |
|
1,325 |
|
1.00 |
|
1,570 |
|
1.00 |
SPAs granted |
|
1,489 |
|
1.00 |
|
469 |
|
1.00 |
|
609 |
|
1.00 |
Exercised SPAs |
|
(233) |
|
1.00 |
|
(209) |
|
1.00 |
|
(701) |
|
1.00 |
Expired SPAs |
|
— |
|
1.00 |
|
(80) |
|
1.00 |
|
(152) |
|
1.00 |
SPAs granted at the end of the year |
|
2,761 |
|
1.00 |
|
1,505 |
|
1.00 |
|
1,325 |
|
1.00 |
Thereof exercisable |
|
— |
|
1.00 |
|
— |
|
1.00 |
|
— |
|
1.00 |
The SPAs in this table includes the RSPs, SSPs and RSUs
Evotec’s average weighted share price at the exercise day of SPAs in financial year 2023 was € 19.38 (December 31, 2022: € 34.27; December 31, December 31, 2021: € 37.97). In the financial year 2023, 227,555 Awards (December 31, 2022: 139,229 Awards; December 31, 2021: 160,048 Awards) from the total granted 1,489,411 SPAs (December 31, 2022: 468,706 SPA’s; December 31, 2021: 608,710 SPA’s) were given to the members of the Management Board. The SPAs exercised in 2023 correspond to 233,083 shares (December 31, 2022: 344,458 shares; December 31, 2021: 1,195,954 shares).
F-58
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The fair value of the grant of SPA was estimated on the date of grant using a Monte-Carlo-Simulation model with the following assumptions:
|
|
RSP 2020 |
|
SPP 2022 |
|
RSP 2020 |
|
RSP 2020 |
|
|
granted |
|
granted |
|
granted |
|
granted |
|
|
October |
|
March |
|
October |
|
May |
|
|
2023 |
|
2023 |
|
2022 |
|
2022 |
Risk-free interest rate in % |
|
2.66 |
|
2.84 |
|
2.03 |
|
0.57 |
Volatility of the Evotec SE share in % |
|
45.00 |
|
50.00 |
|
51.00 |
|
45.00 |
Volatility of the TecDAX index in %. |
|
— |
|
24.00 |
|
— |
|
— |
Fluctuation in % |
|
5.00 |
|
5.00 |
|
5.00 |
|
0.0 - 5.0 |
Exercise price in € |
|
1.00 |
|
1.00 |
|
1.00 |
|
1.00 |
Share price on the day of issue in € |
|
16.79 |
|
16.67 |
|
19.47 |
|
25.26 |
TecDAX index price on the day of issue in points |
|
— |
|
3,202.25 |
|
— |
|
— |
Fair value in accordance with IFRS 2 on the date of issue per SPA of the Executive Board in € |
|
— |
|
12.36 |
|
— |
|
22.87 |
Fair value in accordance with IFRS 2 on the date of issue per SPA of the executives in € |
|
15.91 |
|
17.07 |
|
18.57 |
|
24.29 |
|
|
SPP 2017 |
|
RSP 2020 |
|
RSP 2020 |
|
SPP 2017 |
|
|
granted |
|
granted |
|
granted |
|
granted |
|
|
January |
|
October |
|
May |
|
February |
|
|
2022 |
|
2021 |
|
2021 |
|
2021 |
Risk-free interest rate in % |
|
(0.46) |
|
(0.43) |
|
(0.57) |
|
(0.78) |
Volatility of the Evotec SE share in % |
|
37.00 |
|
35.00 |
|
40.00 |
|
42.00 |
Volatility of the TecDAX index in %. |
|
17.00 |
|
— |
|
— |
|
29.00 |
Fluctuation in % |
|
0.0 - 5.0 |
|
5.00 |
|
0.0 - 5.0 |
|
0.0 - 5.0 |
Exercise price in € |
|
1.00 |
|
1.00 |
|
1.00 |
|
1.00 |
Share price on the day of issue in € |
|
34.90 |
|
44.98 |
|
35.49 |
|
32.25 |
TecDAX index price on the day of issue in points |
|
3,411.87 |
|
— |
|
— |
|
3,375.67 |
Fair value in accordance with IFRS 2 on the date of issue per SPA of the Executive Board in € |
|
31.30 |
|
— |
|
33.50 |
|
31.34 |
Fair value in accordance with IFRS 2 on the date of issue per SPA of the executives in € |
|
33.66 |
|
43.96 |
|
34.47 |
|
36.65 |
For all share performance awards and restricted share awards, a total of € 9,630k was recognized as current service cost in operating expenses in the consolidated statement of income in 2023 (2022: € 9,919k and 2021: € 7,805k). Of this amount, € 2,456k relate to share performance awards of the Management Board in 2023 (2022: € 2,791k; 2021: € 2,002k). In 2023, 2022 and 2021, no current service costs related to stock options were recognized. The expenses related to accelerated vesting are included in the current service cost.
The performance measurement period for all issues started on January 1 of the respective year. An expected dividend yield of zero applies to all models. Depending on the nature of the respective plan, the expected duration is either four or five years. The expected volatilities are based on the historical volatilities of the year prior to the grant date.
F-59
Evotec Group
Notes to consolidated financial statements for the financial year 2023
(13) Provisions
- Accounting principles -
Provisions are recognized as a result of past events, if the Group has:
| ● | a present legal or constructive obligation, |
| ● | the amount can be estimated reliably, and, |
| ● | it is more likely than not that an outflow of resources will be required to settle the obligation. |
Provisions are measured at the present value of the expenditures expected to be required to settle the obligation using a pre-tax discount rate that reflects current market assessments of the time value of money.
A provision for onerous contracts is recognized when the expected benefits to be derived by the Group from such a contract are lower than the unavoidable expenses of meeting its obligations under the contract. The provision is measured at the present value of the lower of the expected expenses of terminating the contract and the expected net expense of continuing with the contract. Before a provision is established, the Group recognizes any impairment expense on the assets associated with that contract.
- Provision -
The current provisions consist of the following:
|
|
December 31, |
|
December 31, |
in k€ |
|
2023 |
|
2022 |
Other personnel expenses |
|
41,490 |
|
47,490 |
Pensions |
|
2,184 |
|
1,730 |
Other provision |
|
1,491 |
|
5,190 |
Total current provisions |
|
45,165 |
|
54,410 |
The non-current provisions consist of the following:
|
|
December 31, |
|
December 31, |
in k€ |
|
2023 |
|
2022 |
Pensions |
|
11,985 |
|
12,531 |
Other personnel expenses |
|
2,164 |
|
1,209 |
Other provisions |
|
1,913 |
|
2,687 |
Total non-current provisions |
|
16,063 |
|
16,427 |
F-60
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The following table summarizes the development of total provisions recorded during 2023:
|
|
|
|
|
|
|
|
|
|
Foreign |
|
|
|
|
|
|
Jan 1, |
|
Business |
|
|
|
|
|
currency |
|
|
|
Dec 31, |
|
|
2023 |
|
combination |
|
Consumption |
|
Release |
|
exchange |
|
Additions |
|
2023 |
|
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
Other personnel expenses |
|
48,699 |
|
— |
|
37,851 |
|
10,858 |
|
91 |
|
43,573 |
|
43,654 |
Pensions |
|
14,261 |
|
— |
|
735 |
|
579 |
|
8 |
|
1,215 |
|
14,170 |
Other provisions |
|
7,877 |
|
— |
|
1,011 |
|
4,588 |
|
(179) |
|
1,303 |
|
3,404 |
Total |
|
70,837 |
|
— |
|
39,596 |
|
16,025 |
|
(80) |
|
46,091 |
|
61,228 |
The following table summarizes the development of total provisions recorded during 2022:
|
|
|
|
|
|
|
|
|
|
Foreign |
|
|
|
|
|
|
Jan 1, |
|
Business |
|
|
|
|
|
currency |
|
|
|
Dec 31, |
|
|
2022 |
|
combination |
|
Consumption |
|
Release |
|
exchange |
|
Additions |
|
2022 |
|
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
Other personnel expenses |
|
36,012 |
|
419 |
|
23,105 |
|
3,374 |
|
(2,525) |
|
41,272 |
|
48,699 |
Pensions |
|
14,428 |
|
553 |
|
1,629 |
|
1,404 |
|
(12) |
|
2,325 |
|
14,261 |
Other provisions |
|
6,841 |
|
287 |
|
1,103 |
|
3,182 |
|
(63) |
|
5,097 |
|
7,877 |
Total |
|
57,281 |
|
1,259 |
|
25,837 |
|
7,960 |
|
(2,600) |
|
48,694 |
|
70,837 |
The provision for personnel expenses mainly consists of bonus accruals (December 31, 2023: € 13,817k; December 31, 2022: € 26,704k) and accrued vacation (December 31, 2023: € 18,454k; December 31, 2022: € 16,637k). The provision for pensions mainly relates to pensions in France (see Note 12).
The other provisions mainly consist of earn-out provisions (December 31, 2023: € 311k; 31 December 2022: € 306k), audit fees (December 31, 2023: € 1,964k; December 31, 2022: € 2,111k) and maintenance fees (December 31, 2023: € 376k; December 31, 2022: € 1,483k).
(14) Financial Risk Management
The Group is exposed to several types of financial risks. The Group does not purchase or hold any derivative financial instruments for speculative purposes.
- Liquidity Risk-
Revenue fluctuations, external events and changes in the business environment might negatively impact the Group’s short- to mid-term profitability and cash reserves. To actively address any related risk, the Group’s management has defined minimum liquidity levels and prepared a scenario planning to safeguard its cash position. The Group believes that existing liquidity reserves are sufficient to cope with the cumulative impact of all identified risks. The Group currently has sufficient liquidity reserves, due to a public placement in the United States in 2021 and securing additional external debt financing in 2023, most significantly a 150m unsecured loan facility from the European Investment Bank. However, the option of increasing capital is always considered. This additional financing might be required if new opportunities arise in terms of M&A or in-licensing. The Group does not intend to engage in projects unless adequate funding is allocated or secured. Given the current business environment with economic and political uncertainties, the Group assesses the associated liquidity risks still to be low (previous year: low).
F-61
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The general risk of losing a significant amount of cash in cash investments is continuously mitigated by spreading the investments across several different banks in high-credit quality instruments in full compliance with the Group’s approved investment policy. The Group monitors its banks and investments on an ongoing basis. Therefore, the Group assesses the current default risks to be low, remaining unchanged in comparison to the previous year.
Currency exchange movements also impact the Group’s reported liquidity primarily through the translation of liquid assets held in U.S. Dollars or Pound Sterling into Euros. A portion of the funds is held in currencies other than Euro to meet local operating needs. This risk has increased due to extensive political uncertainty and a potentially strong market reaction in the forthcoming months but was already subject to increasing volatility in previous years.
The contractual maturities of the financial liabilities, including the estimated interest payments as of December 31, 2023 and 2022 are shown in the following tables:
|
|
December 31, 2023 |
||||||||
|
|
Carrying |
|
Contractual |
|
Due in |
|
Due in |
|
Due in more |
|
|
amount |
|
Cashflow |
|
1 year |
|
2 - 5 years |
|
than 5 years |
|
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
Non-derivative financial liabilities |
|
|
|
|
|
|
|
|
|
|
Loans |
|
(437,058) |
|
(448,999) |
|
(133,666) |
|
(159,790) |
|
(155,542) |
Lease obligations |
|
(189,140) |
|
(204,291) |
|
(23,476) |
|
(91,682) |
|
(89,132) |
Contingent consideration |
|
(311) |
|
(334) |
|
(334) |
|
— |
|
— |
Trade accounts payable |
|
(134,319) |
|
(134,319) |
|
(134,319) |
|
— |
|
— |
Other financial liabilities |
|
(23,960) |
|
(23,960) |
|
(22,572) |
|
(1,387) |
|
— |
Total non-derivative financial liabilities |
|
(784,787) |
|
(811,902) |
|
(314,368) |
|
(252,860) |
|
(244,674) |
Derivative financial liabilities |
|
|
|
|
|
|
|
|
|
|
Interest rate swaps/Foreign currency forwards |
|
(193) |
|
(193) |
|
(60) |
|
(133) |
|
— |
Total derivative financial liabilities |
|
(193) |
|
(193) |
|
(60) |
|
(133) |
|
— |
|
|
December 31, 2022 |
||||||||
|
|
Carrying |
|
Contractual |
|
Due in |
|
Due in |
|
Due in more |
|
|
amount |
|
Cashflow |
|
1 year |
|
2 - 5 years |
|
than 5 years |
|
|
k€ |
|
k€ |
|
k€ |
|
k€ |
|
k€ |
Non-derivative financial liabilities |
|
|
|
|
|
|
|
|
|
|
Loans |
|
(329,851) |
|
(345,522) |
|
(7,266) |
|
(272,749) |
|
(65,507) |
Lease obligations |
|
(176,823) |
|
(186,894) |
|
(19,422) |
|
(78,152) |
|
(89,320) |
Contingent consideration |
|
(306) |
|
(372) |
|
(76) |
|
(291) |
|
(5) |
Trade accounts payable |
|
(97,277) |
|
(97,277) |
|
(97,277) |
|
— |
|
— |
Other financial liabilities |
|
(17,871) |
|
(17,871) |
|
(16,894) |
|
(977) |
|
— |
Total non-derivative financial liabilities |
|
(622,128) |
|
(647,936) |
|
(140,935) |
|
(352,168) |
|
(154,832) |
Derivative financial liabilities |
|
|
|
|
|
|
|
|
|
|
Interest rate swaps/Foreign currency forwards |
|
(7,358) |
|
(7,358) |
|
(6,965) |
|
(393) |
|
— |
Total derivative financial liabilities |
|
(7,358) |
|
(7,358) |
|
(6,965) |
|
(393) |
|
— |
- Currency Risk-
The Group is exposed to foreign exchange risk as the Group entities enter into revenues, purchases, and other transactions in a currency other than the functional currency of the respective Group entity. The functional currencies of the Group entities are mainly Euro, US Dollar and British Pound. In the course of their ordinary business activities, the Group companies are exposed in particular to exchange rate fluctuations between US Dollar, British Pound and Euro.
F-62
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The table below shows the average exchange rates as well as the exchange rates as of December 31, 2023 and December 31, 2022, in each case against the Euro:
|
|
Annual average exchange rate |
|
Closing rate Dec 31 |
||||
|
|
2023 |
|
2022 |
|
Dec. 31 |
||
|
|
Jan 1 - Dec 31 |
|
Jan 1 - Dec 31 |
|
2023 |
|
2022 |
|
|
€ |
|
€ |
|
€ |
|
€ |
USD |
|
0.92484 |
|
0.9496 |
|
0.9050 |
|
0.9376 |
GBP |
|
1.149707 |
|
1.1727 |
|
1.1507 |
|
1.1275 |
A strengthening (weakening) of the Euro, the US Dollar and the British Pound among themselves and against other currencies, as shown below as at December 31, would lead to an increase (reduction) in equity and earnings with the amounts mentioned below. This analysis relates to financial instruments held for sale on condition that all other variables remain constant and ignore the impact of purchases and sales.
|
|
2023 |
||||||||||
|
|
USD |
|
GBP |
|
EUR |
||||||
k€ |
|
+10% |
|
(10)% |
|
+10% |
|
(10)% |
|
+10% |
|
(10)% |
Share |
|
16,699 |
|
(16,699) |
|
5,278 |
|
(5,278) |
|
21,977 |
|
(21,977) |
Result |
|
16,699 |
|
(16,699) |
|
5,278 |
|
(5,278) |
|
21,977 |
|
(21,977) |
|
|
2022 |
||||||||||
|
|
USD |
|
GBP |
|
EUR |
||||||
k€ |
|
+10% |
|
(10)% |
|
+10% |
|
(10)% |
|
+10% |
|
(10)% |
Share |
|
31,007 |
|
(31,007) |
|
3,967 |
|
(3,967) |
|
34,974 |
|
(34,974) |
Result |
|
31,007 |
|
(31,007) |
|
3,967 |
|
(3,967) |
|
34,974 |
|
(34,974) |
|
|
2021 |
||||||||||
|
|
USD |
|
GBP |
|
EUR |
||||||
k€ |
|
+10% |
|
(10)% |
|
+10% |
|
(10)% |
|
+10% |
|
(10)% |
Share |
|
42,053 |
|
(42,053) |
|
6,643 |
|
(6,643) |
|
48,699 |
|
(48,699) |
Result |
|
42,053 |
|
(42,053) |
|
6,643 |
|
(6,643) |
|
48,699 |
|
(48,699) |
The Group manages foreign exchange exposure by incurring certain expenses in the currency of the local operating business and through selected hedging transactions such as foreign currency forward contracts. The hedging instruments used do not expose the Group to any significant additional risk. The objective of these transactions is to reduce the exposure of exchange rate fluctuations of the Group’s foreign currency denominated cash flows. The Group does not enter into derivative transactions for trading or speculative purposes. Foreign currency contracts are accounted for at fair value. Foreign currency derivative accounting gains and losses are included in non-operating income and expense amounted to a net gain of € 8,360k in financial year 2023 (2022: net gain € 9,424k, 2021: net loss € 12,410k). The realized and unrealized FX gains in 2023 mainly result from favorable FX forwards from the second half of the year.
Derived regularly from the summarized quantitative data about the Group’s currency risks, based on the report to the Management Board, the expected future USD cash flows which should be hedged with USD/GBP forward contracts and USD/EUR forward contracts are determined. As of December 31, 2023, cash flows of USD 233,000 k (December 31, 2022: USD 394,039k, December 31, 2021: USD 344,830k), of which USD 173,000k was hedged against the Euro (December 31, 2022: USD 349,639k, December 31, 2021: USD 300,430k), and USD 60,000 k was hedged against the GBP (December 31, 2022: USD 44,400k, December 31, 2021: USD 44,400k), as well as cash outflows of € 3,900k against the GBP (December 31, 2022: € 8,400k, December 31, 2021: € 8,400k).The fair value of cash and cash equivalents, trade receivables and trade payables approximate their carrying amount due to their short-term nature. Financial assets are accounted for at the settlement date.
F-63
Evotec Group
Notes to consolidated financial statements for the financial year 2023
-Interest Rate Risk-
Due to securities and other cash investments as well as loans, the Group is exposed to interest rate risks in Germany, UK, and the USA. Financial instruments with fixed interest rates are not subject to interest rate risk and are accordingly not included in the sensitivity analysis.
The fair value of debt differs from the carrying amount if there is a difference between the underlying interest rate and the market interest rate. The fair value is then determined by discounting using the market interest rate.
The fair values of loans and securities and other investments with variable market interest rates would vary by the following amounts as of December 31, 2023, 2022 and 2021:
|
|
December 31, 2023 |
|
December 31, 2022 |
|
December 31, 2021 |
|
|
k€ |
|
k€ |
|
k€ |
Flexible interest rate +1%-Point |
|
3,794 |
|
3,014 |
|
2,570 |
Flexible interest rate (1)%-Point |
|
(2,495) |
|
(1,714) |
|
(827) |
The Group is exposed to interest rate risk through variable interest-bearing loans. These interest rate risks are considered immaterial.
Evotec regularly uses interest rate swaps to economically hedge the interest rate risks arising from its debt financing. In June 2019, two interest rate swaps with a total notional amount of € 48,250k were agreed against a fixed interest rate of 0.17% and 0.24%, respectively. These result in a current valuation of € (183)k
-Credit Risk-
Credit risk is the risk of financial loss to the Group if a customer fails or partly fails to meet any of its contractual obligations and arises primarily from the receivables from customers, contract assets and investment securities. The maximum exposure to credit risk for trade receivables at the reporting date by geographic region is as follows:
|
|
December 31, 2023 |
|
December 31, 2022 |
|
|
k€ |
|
k€ |
USA |
|
38,709 |
|
92,034 |
France |
|
7,107 |
|
24,429 |
UK |
|
15,600 |
|
20,451 |
Germany |
|
8,699 |
|
7,767 |
Rest of Europe |
|
12,990 |
|
13,622 |
Rest of the world |
|
13,129 |
|
10,350 |
|
|
96,233 |
|
168,653 |
The maximum credit risk of the contract assets corresponds to the carrying amounts and amounted to € 25,000k at year-end (December 31, 2022: € 30,516k).
The Group has exposure to credit risk primarily with respect to its third-party receivables. The Group continuously assesses the solvency of its customers and maintains an appropriate specific allowance for bad debts, which is derived from the expected collectability of all receivables from third parties. The Group’s receivables from third parties are unsecured and not secured by any liens from customers. On December 31, 2023, 6% of trade account receivables were due from one customer (December 31, 2022: 22%). Any default risks with regards to trade receivables are mainly limited by geographical diversification of customers and by the Group’s monitoring procedures.
F-64
Evotec Group
Notes to consolidated financial statements for the financial year 2023
-Country risk-
Country risk is the risk that political, legal, or economic developments in a single country could adversely impact the Group’s performance. The country risk is monitored on a regular basis (see Assets and Liabilities per currency above).
-Market Risk-
The market environment and competitive landscape for licensing and licensed projects or individual drug candidates, in general or for individual treatments might change while engaging in individual projects. Revenues generated under the collaboration agreements are allocated to either the EVT Execute or the EVT Innovate segment depending on the type of contract with the Group’s customers, the intellectual property right and the project stage. This partnership model, which the Group believes to be unique, allows the risks of drug discovery to be balanced and spread.
-Capital management risk-
The Group actively manages its funds to primarily ensure liquidity and principal preservation while seeking to maximize returns. The Group’s cash and short-term investments are held with several different banks. Financial investments are made in liquid, highly diversified investment instruments having at minimum a Standard & Poor’s rating (or equivalent) of at least BBB-.
The following table shows the total assets, equity as well as equity ratio and net cash (cash and cash equivalents minus current and non-current loan liabilities and current and non-current finance lease obligations):
|
|
December 31, 2023 |
|
December 31, 2022 |
|
|
|
k€ |
|
k€ |
|
Balance sheet total |
|
2,252,468 |
|
2,257,247 |
|
Equity attributable to Shareholders of Evotec SE |
|
1,119,908 |
|
1,187,184 |
|
Equity ratio in (%) |
|
49.7 |
% |
52.6 |
% |
Net cash |
|
(115,289) |
|
(91,518) |
|
The Group remains well financed with an equity ratio relating to equity attributable to the Group’s shareholders of 49.7% as of December 31, 2023 (December 31, 2022: 52.6%) and currently has no necessity to raise capital to maintain its operations in the near to mid-term. However, the option to increase capital must always be considered if new opportunities arise in terms of M&A or in-licensing which require additional financing. Furthermore, the acquisition of anchor investors can be of strategic importance for the company.
No minimum capital requirements are stipulated in Evotec’s statutes. The Company has obligations to issue shares out of the conditional capital relating to the exercise of stock options based on miscellaneous stock option plans as well as Share Performance Awards on the basis of Share Performance Plans (see Note (12)).
F-65
Evotec Group
Notes to consolidated financial statements for the financial year 2023
(15) Fair Value of financial assets and liabilities
-Accounting Principles-
For financial reporting purposes, financial instruments are categorized into Level 1, 2 or 3, based on the degree to which the inputs to the fair value measurements are observable and the significance of the inputs to the fair value measurement in its entirety, which are as follows:
| ● | Level 1 – inputs are quoted prices (unadjusted) for identical assets or liabilities in active markets that the company can access at the measurement date. |
| ● | Level 2 – all significant inputs (other than quoted prices included within Level 1) are observable for the asset or liability, either directly (as prices) or indirectly (derived from prices). |
| ● | Level 3 – one or more of the significant inputs are not based on observable market data, such as third-party pricing information without adjustments, for the asset or liability. |
Transfers between levels of the fair value hierarchy are recognized at the end of the reporting period during which the change has occurred.
Specific valuation techniques used to value financial instruments include:
Level 1
Instruments included in level 1 are comprised primarily of listed equity investments classified as financial assets carried at fair value through profit or loss or carried at fair value through other comprehensive income. The fair value of financial instruments traded in active markets is based on quoted market prices at the balance sheet date. A market is regarded as active if quoted prices are readily and regularly available from an exchange, dealer, broker, industry group, pricing service, or regulatory agency, and those prices represent actual and regularly occurring market transactions on an arm’s length basis.
Level 2
The fair value of financial instruments that are not traded in an active market (for example, over-the-counter derivatives or convertible bond instruments) is determined by using valuation techniques. These valuation techniques maximize the use of observable market data where it is available and rely as little as possible on entity-specific estimates. If all significant inputs required to fair value an instrument are based on observable market data, the instrument is included in level 2. The fair value of derivatives is calculated as the present value of the estimated future cash flows based on observable interest yield curves, basis spread and foreign exchange rates.
The fair value of debt is estimated on the basis of the quoted market prices for certain issuances, or on the basis of discounted cash flow analysis using market rates.
Level 3
If one or more of the significant inputs are not based on observable market data, such as third-party pricing information without adjustments, the instrument is included in level 3.
F-66
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The fair value of contingent consideration is dependent on the terms of the respective acquisition agreement that may require the Group to pay additional consideration to former shareholders if specified future events occur or conditions are met.
The fair value measurement is based on management’s estimates and assumptions and hence classified as Level 3 in the fair value hierarchy.
-Fair Values-
The following table shows the fair value of the financial assets and liabilities measured at fair value and financial liabilities measured at amortized cost together with the corresponding carrying amounts from the statement of financial position as of December 31, 2023 and December 31, 2022 and their respective fair value level. Financial assets measured at amortized cost approximate their carrying amounts in the statement of financial position.
|
|
December 31, 2023 |
||||||||
|
|
Carrying |
|
|
|
|
|
|
|
|
in k€ |
|
amount |
|
Fair value |
|
Level 1 |
|
Level 2 |
|
Level 3 |
Financial assets |
|
|
|
|
|
|
|
|
|
|
Equity instruments |
|
128,109 |
|
128,109 |
|
81,417 |
|
9,543 |
|
37,149 |
Other financial assets |
|
3,179 |
|
3,179 |
|
— |
|
— |
|
3,179 |
Financial assets carried at FVTPL |
|
131,288 |
|
131,288 |
|
81,417 |
|
9,543 |
|
40,328 |
Equity instruments |
|
7,484 |
|
7,484 |
|
7,484 |
|
— |
|
— |
Short - term investments1 |
|
321,550 |
|
321,550 |
|
321,550 |
|
— |
|
— |
Financial assets carried at FVTOCI |
|
329,034 |
|
329,034 |
|
329,034 |
|
— |
|
— |
Derivative financial instruments |
|
6,137 |
|
6,137 |
|
|
|
6,137 |
|
|
Financial assets carried at fair value |
|
466,459 |
|
466,459 |
|
410,451 |
|
15,680 |
|
40,328 |
|
|
|
|
|
|
|
|
|
|
|
Financial liabilities |
|
|
|
|
|
|
|
|
|
|
Contingent consideration |
|
(311) |
|
(311) |
|
— |
|
— |
|
(311) |
Financial Liabilities carried at FVTPL |
|
(311) |
|
(311) |
|
— |
|
— |
|
(311) |
Derivative financial instruments |
|
(193) |
|
(193) |
|
(193) |
|
— |
|
— |
Financial liabilities carried at fair value |
|
(504) |
|
(504) |
|
(193) |
|
— |
|
(311) |
Trade account payables |
|
(134,319) |
|
(134,319) |
|
— |
|
— |
|
— |
Loans and borrowings |
|
(437,058) |
|
(380,204) |
|
|
|
|
|
|
Other liabilities |
|
(190,527) |
|
(190,527) |
|
— |
|
— |
|
— |
Carried at (amortized) costs |
|
(761,904) |
|
(705,050) |
|
— |
|
— |
|
— |
Total financial liabilities |
|
(762,408) |
|
(705,554) |
|
(193) |
|
— |
|
(311) |
¹ Short-term investments include investments which are measured at FVTOCI in the amount of € 83,203k as well as money market funds that are included in cash and cash equivalents on the balance sheet in the amount of € 238,346k and are measured at FVTOCI.
F-67
Evotec Group
Notes to consolidated financial statements for the financial year 2023
|
|
December 31, 2022 |
||||||||
|
|
Carrying |
|
|
|
|
|
|
|
|
in k€ |
|
amount |
|
Fair value |
|
Level 1 |
|
Level 2 |
|
Level 3 |
Financial Asset |
|
|
|
|
|
|
|
|
|
|
Equity instruments |
|
122,477 |
|
122,477 |
|
70,133 |
|
— |
|
52,344 |
Other financial assets |
|
1,531 |
|
1,531 |
|
— |
|
— |
|
1,531 |
Financial assets carried at FVTPL |
|
124,008 |
|
124,008 |
|
70,133 |
|
— |
|
53,875 |
Equity instruments |
|
8,565 |
|
8,565 |
|
8,565 |
|
— |
|
— |
Short-term investments¹ |
|
288,874 |
|
288,874 |
|
288,874 |
|
— |
|
— |
Financial assets carried at FVTOCI |
|
297,439 |
|
297,439 |
|
297,439 |
|
— |
|
— |
Derivative financial instruments |
|
8,215 |
|
8,215 |
|
— |
|
8,215 |
|
|
Total financial assets carried at fair value |
|
429,662 |
|
429,662 |
|
367,572 |
|
8,215 |
|
53,875 |
|
|
|
|
|
|
|
|
|
|
|
Financial liabilities |
|
|
|
|
|
|
|
|
|
|
Contingent consideration |
|
(306) |
|
(306) |
|
— |
|
— |
|
(306) |
Financial Liabilities carried at FVTPL |
|
(306) |
|
(306) |
|
— |
|
— |
|
(306) |
Derivative financial instruments |
|
(7,358) |
|
(7,358) |
|
— |
|
(7,358) |
|
— |
Financial liabilities carried at fair value |
|
(7,358) |
|
(7,358) |
|
— |
|
(7,358) |
|
— |
Trade account payables |
|
(97,278) |
|
(97,278) |
|
— |
|
— |
|
— |
Loans and borrowings |
|
(329,851) |
|
(308,130) |
|
— |
|
— |
|
— |
Other liabilities |
|
(177,800) |
|
(177,800) |
|
— |
|
— |
|
— |
Carried at (amortized) costs |
|
(933,986) |
|
(912,265) |
|
— |
|
— |
|
— |
Total financial liabilities |
|
(941,650) |
|
(919,929) |
|
— |
|
(7,358) |
|
(306) |
1 Short-term investments include investments which are measured at FVTOCI in the amount of € 105,334k as well as money market funds that are included in cash and cash equivalents on the balance sheet in the amount of € 183,540k and are measured at FVTOCI.
F-68
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Other Financials Assets carried at Fair Value through Profit & Loss consists of convertible loans granted to long-term investments in accordance with IFRS 9 in the amount of € 3,179k (2022: € 1,531k). The following tables show the development in financial years 2023 and 2022 of the fair values of Level 3:
|
|
|
|
Equity Instruments |
|
|
|
|
|
|
and other |
|
|
|
|
|
|
financial assets |
|
Contingent |
in k€ |
|
Note |
|
Instruments |
|
consideration |
Balance as of Jan 1, 2023 |
|
|
|
53,875 |
|
(306) |
Additions |
|
10 |
|
14,028 |
|
— |
Disposal |
|
10 |
|
(3,523) |
|
— |
Transfer from Level 3 to Level 2 |
|
|
|
(10,909) |
|
— |
Fair Value Change |
|
|
|
(13,144) |
|
(5) |
Balance on December 31, 2023 |
|
|
|
40,328 |
|
(311) |
|
|
|
|
Equity Instruments |
|
|
|
|
|
|
and other |
|
|
|
|
|
|
financial assets |
|
Contingent |
in k€ |
|
Note |
|
Instruments1 |
|
consideration |
Balance as of Jan 1, 2022 |
|
|
|
25,458 |
|
(1,103) |
Additions |
|
10 |
|
25,846 |
|
(14) |
Disposal |
|
10 |
|
— |
|
— |
Transfer from Level 3 to Level 2 |
|
|
|
— |
|
— |
Fair Value Change |
|
|
|
2,571 |
|
811 |
Balance on December 31, 2022 |
|
|
|
53,875 |
|
(306) |
1 Previous year figures were adjusted to include convertible loans.
The effects recognized in the income statement above from the adjustment of the fair values at level 3 were included in the consolidated income statement under “Other operating income” and “interest expense”.
For the fair value of the level 3 hierarchy, possible alternative assumptions of significant unobservable inputs would have ceteris paribus the following effects as of December 31, 2023 and 2022:
|
|
2023 |
|
2022 |
||||
|
|
Net result |
|
Net result |
||||
|
|
Increase |
|
Decrease |
|
Increase |
|
Decrease |
|
|
k€ |
|
k€ |
|
k€ |
|
k€ |
Contingent consideration |
|
|
|
|
|
|
|
|
Discount rate (change of 1.5 %-points) |
|
(3) |
|
3 |
|
(7) |
|
7 |
F-69
Evotec Group
Notes to consolidated financial statements for the financial year 2023
(16) Shareholder´s Equity
As of December 31, 2023, 177,185,736 shares of Evotec SE with a nominal value of € 1.00 per share are issued and outstanding.
The stock options exercised in 2023 have an average exercise price of € 1.00 per share, the same as the average exercise price for stock options exercised in 2022.
The conditional capital of Evotec SE as of December 31, 2023 consists of 12,540,493 shares available for the Share Performance Plans and the Stock Option Plans and 35,390,530 shares available for the issuance of no-par value bearer shares to holders or creditors of convertible bonds and/or bonds with warrants, profit participation rights and/or income bonds (or a combination of these instruments). Evotec SE may grant these on the basis of the resolution of the Annual General Meeting on June 22, 2022. The remaining conditional capital of Evotec SE as of December 31, 2023, thus amounts to a total of 47,931,023 shares.
Pursuant to Section 5 (5) of the Company’s Articles of Association, the Management Board is authorized, with the approval of the Supervisory Board, to increase the Company’s share capital by up to € 35,321,639 by issuing new shares against cash or non-cash contributions on one or more occasions until June 21, 2025.
As of December 31, 2023, Evotec holds 249,915 treasury shares (December 31, 2022: 249,915), representing 0.1% (December 31, 2022: 0.1%) of Evotec’s total share capital as of December 31, 2023.
(17) Earnings per share
-Accounting Principles-
Basic EPS is calculated by dividing the Net income (loss) attributable to shareholders by the weighted average number of common shares outstanding during the period, adjusted for own shares held. Diluted EPS is determined by adjusting the Net income (loss) attributable to shareholders and the weighted average number of common shares outstanding during the period, adjusted for own shares held, for the effects of all dilutive potential common shares, which comprises forward purchase contracts, restricted shares, performance shares and share options granted to employees.
-Earnings per share-
The weighted average number of ordinary shares is calculated as follows:
Shares in thousands |
|
2023 |
|
2022 |
|
2021 |
Issued shares Jan. 1 |
|
176,953 |
|
176,608 |
|
163,915 |
Treasury shares Jan. 1 |
|
(250) |
|
(250) |
|
(250) |
Effect of weighted average share capital increase |
|
— |
|
— |
|
1,953 |
Effect of weighted average stock options exercised |
|
214 |
|
316 |
|
788 |
Weighted Average Number of Shares Outstanding Dec 31. |
|
176,917 |
|
176,674 |
|
166,406 |
F-70
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Diluted net income per share is computed by dividing the surplus attributable to shareholders of Evotec SE, by the weighted-average number of ordinary shares and share equivalents outstanding for the period determined using the treasury-stock method. For purposes of this calculation, stock options and Share Performance Awards are common stock equivalents and are only included in the calculation of diluted net income per share when their effect is dilutive. In 2023, the number of potentially dilutive shares to be issued from stock options and Share Performance Awards amounted to 1,000,455 (2022: 463,415). For calculating the diluted net result per share, the resulting dilutive shares are included from the beginning of the period.
(18) Commitments and contingencies
-Operating Lease obligations-
The future minimum lease payments under non-cancellable lease agreements but not yet commenced, are as follows:
|
|
Dec 31 |
|
Dec 31 |
|
|
2023 |
|
2022 |
|
|
k€ |
|
k€ |
Less than one year |
|
1,192 |
|
1,561 |
Between one and five years |
|
14,304 |
|
16,373 |
More than five years |
|
38,144 |
|
44,979 |
Total |
|
53,640 |
|
62,913 |
In addition, the Group maintains leases which were not recognized in accordance with the exemptions in IFRS 16. These amounts are not material and therefore not presented here.
-Other Commitments and Contingencies-
The future minimum payments associated with miscellaneous long-term commitments total approximately € 80,367k at December 31, 2023. The significant portion thereof is related to long-term commitments in connection with facility expenses as well as contracted, non-milestone-based capital calls in relation with the Group´s investments in associates and long-term investments.
In addition, as of December 31, 2023, contingent liabilities in relation with milestone-based commitments in connection with the Group´s long-term investments amounted to € 9,122k.
As of December 31, 2023, the Group has entered into purchase order commitments in the amount of € 80,519k.
The Group is not aware of any material actual or threatened litigation as of December 31, 2023.
(19) Related party transactions
The Group has not entered into any significant transactions with any key management personnel or member of the Supervisory Board. The remuneration paid to key management personnel is presented in Note 21 e). The remuneration paid to members of the Supervisory Board is shown in Note 21 e).
F-71
Evotec Group
Notes to consolidated financial statements for the financial year 2023
As part of the normal course of business, the Group may enter into transactions with associated companies. The terms and conditions of all transactions are made based on market terms and conditions and the arm’s length principle.
in k€ |
|
2023 |
|
2022 |
|
2021 |
Sales of goods and services |
|
16,661 |
|
36,677 |
|
28,868 |
Receivables from related parties |
|
2,164 |
|
4,071 |
|
2,643 |
(20) Auditor’s remuneration
BDO and other firms in the BDO network charged the following fees for audit other professional services:
in k€ |
|
2023 |
|
2022 |
Audit Fees1 |
|
4,088 |
|
2,460 |
Audit-Related Fees |
|
60 |
|
43 |
Audit fees related to prior year audit |
|
1,504 |
|
402 |
All Other Fees |
|
— |
|
77 |
Total |
|
5,651 |
|
2,982 |
1 Previous year figures have been adjusted to include fees of all BDO network firms.
Audit fees are the aggregate fees charged by BDO network firms for auditing our consolidated financial statements and statutory and other regulatory filings or engagements of Evotec SE and its subsidiaries.
Furthermore, audit-related fees of € 60k were provided for the audit of the non-financial report including sustainability-related disclosures.
(21) Other disclosures
German law in accordance with the European Directives on Accounting and the Corporate Governance Codex requires the following additional disclosures.
a) Number of Employees
The average number of people employed by the Company in 2023 was 5,069 employees (2022: 4,482). In 2023, 915 of these employees worked in sales and administration (2022: 694) and 4,154 of these employees worked in operations (2022: 3,788). The increase is mainly due to organic business growth.
b) Corporate Governance Code
According to Sec 161 AktG, the Management Board and Supervisory Board issued statement of compliance with regard to the German Corporate Governance Code. This statement has been made accessible to the Company’s shareholders in the ‘Invest’ section on Evotec’s website (https://www.evotec.com/en/sustainability/governance).
F-72
Evotec Group
Notes to consolidated financial statements for the financial year 2023
(c) Consolidated subsidiaries and equity investees
Information below shows Evotec’s direct and indirect voting rights in their subsidiaries and other investments. Evotec’s direct and indirect voting rights in dormant companies are not included.
|
|
2023 |
|
|
Company’s |
|
|
voting |
|
|
rights |
|
|
% |
Subsidiaries |
|
|
Aptuit Global LLC, Princeton, USA |
|
100 |
Aptuit (Verona) SRL, Verona, Italy |
|
100 |
Aptuit (Oxford) Ltd., Abingdon, UK |
|
100 |
Aptuit (Potters Bar) Ltd., Abingdon, UK |
|
100 |
Cyprotex Discovery Ltd., Manchester, UK |
|
100 |
Cyprotex Ltd., Manchester, UK |
|
100 |
Cyprotex US, LLC., Framingham, USA |
|
100 |
Evotec (France) SAS, Toulouse, France |
|
100 |
Evotec ID (Lyon) SAS, Marcy l’Étoile, France |
|
100 |
Evotec (Hamburg) GmbH, Hamburg, Germany |
|
100 |
Evotec GT GmbH, Orth an der Donau, Austria |
|
100 |
Evotec (India) Private Limited, Thane, India* |
|
100 |
Evotec International GmbH, Hamburg, Germany |
|
100 |
Evotec (München) GmbH, Martinsried, Germany |
|
100 |
Evotec (UK) Ltd., Abingdon, UK |
|
100 |
Evotec (US), Inc., Princeton, USA |
|
100 |
Just - Evotec Biologics, Inc., Seattle, USA |
|
100 |
Just - Evotec Biologics EU SAS, Toulouse, France |
|
100 |
Evotec Drug Substance (Germany) GmbH, Halle, Germany |
|
100 |
Evotec (Modena) Srl, Medolla, Italy |
|
100 |
NephThera GmbH, Hamburg, Germany |
|
100 |
Evotec Asia Pte. Ltd., Shenton, Singapore |
|
100 |
F-73
Evotec Group
Notes to consolidated financial statements for the financial year 2023
|
|
2023 |
|
|
Company’s |
|
|
voting |
|
|
rights |
|
|
% |
Associates |
|
|
Ananke Therapeutics Inc., Boston, USA |
|
19.88 |
Autobahn Labs LLC, Palo Alto, USA |
|
35.26 |
Breakpoint Therapeutics GmbH, Hamburg, Germany |
|
34.03 |
Curexsys GmbH, Göttingen, Germany |
|
43.44 |
Dark Blue Therapeutics Ltd., Oxford, UK |
|
38.97 |
Eternygen GmbH, Berlin, Germany |
|
24.97 |
Quantro Therapeutics GmbH, Wien, Austria |
|
38.79 |
Topas Therapeutics GmbH, Hamburg, Germany |
|
23.61 |
Centauri Therapeutics Ltd., Sandwich (Kent), UK |
|
20.04 |
|
|
|
Other Investments |
|
|
Aeovian Pharmaceuticals Inc., San Francisco, USA |
|
3.51 |
ArgoBio SAS, Paris, Frankreich |
|
10.01 |
Aurobac Therapeutics SAS, Lyon, Frankreich |
|
12.50 |
Blacksmith Medicines Inc., San Diego, USA |
|
17.94 |
Cajal Neuroscience Inc., Seattle, USA |
|
1.52 |
Carma Fund I, München, Germany |
|
10.00 |
Carrick Therapeutics Ltd., Dublin, Ireland |
|
2.78 |
Celmatix |
|
12.35 |
Curie Bio LLC, Boston, USA |
|
0.11 |
Curie Bio Seed Fund I L.P., Boston, USA |
|
2.83 |
Exscientia plc, Oxford, UK |
|
11.41 |
Extend Srl, Rome, Italy |
|
10.00 |
Fibrocor LLP, Toronto, Canada |
|
16.26 |
Fibrocor Therapeutics Inc., Toronto, Canada |
|
8.83 |
IMIDomics Inc., San Francisco, USA |
|
8.15 |
Immunitas, Therapeutics, Inc., Waltham, USA |
|
5.58 |
Leon Nanodrugs GmbH, München, Germany |
|
12.44 |
Mission BioCapital V LP, Cambridge, USA |
|
3.64 |
OxVax Ltd., Oxford, UK* |
|
15.33 |
Pancella/Pluristyx |
|
5.69 |
Sernova Corp., Ontario, Canada |
|
5.16 |
Tubulis GmbH, München, Germany |
|
9.60 |
* |
In voluntary liquidation |
On July 1, 2023 Evotec acquired the remaining 50% in NephThera GmbH. Therefore, NephThera is fully consolidated as of July 2023.
Associates and joint ventures are accounted for using the equity method.
As of July 2023, Evotec stepped down from its board seat of Pancella Inc. Consequently, Evotec does not have significant influence over this company since July 2023 and the corresponding investment is no longer accounted for using the equity method and measured at fair value according to IFRS 9.
F-74
Evotec Group
Notes to consolidated financial statements for the financial year 2023
In the second half of the year 2023, the Group´s share of Centauri Therapeutics Ltd. increased to more than 20%. Together with Evotec´s participation in all significant financial and operational decisions, the Group determined that it has significant influence over Centauri Therapeutics Ltd. Therefore, the investment is accounted for using the equity method.
The Group’s investments in subsidiaries, associates and joint ventures are not hedged as these currency positions are considered to be long-term in nature.
(d) Management Board
Dr. Werner Lanthaler, Business Executive, Hamburg, Germany (Chief Executive Officer, Chairman of the Board until January 3, 2024),
Dr. Mario Polywka, Oxfordshire, United Kingdom (Interim Chief Executive Officer, Chairman of the Board until June 2024)
Dr. Cord Dohrmann, Biologist, Göttingen, Germany (Chief Scientific Officer),
Dr. Craig Johnstone, Chemist, Castillon-Savès, France (Chief Operating Officer),
Enno Spillner, Business Executive, Hamburg, Germany (Chief Financial Officer, until March 31, 2023),
Laetitia Rouxel, Business Executive, Clarens, Switzerland (Chief Financial Officer, Germany from April 1, 2023) and
Dr. Matthias Evers, Neurobiologist, Hamburg, Germany (Chief Business Officer, from May 1, 2022).
The remuneration granted to the members of the Management Board for the financial years 2023 and 2022 are shown below:
in k€ |
|
2023 |
|
2022 |
Fixed remuneration |
|
2,954 |
|
2,343 |
Variable remuneration |
|
731 |
|
1,579 |
Share Performance Awards (in units) |
|
227,555 |
|
139,229 |
Fair value of SPAs granted |
|
3,611 |
|
4,580 |
Total Remuneration |
|
7,296 |
|
8,502 |
F-75
Evotec Group
Notes to consolidated financial statements for the financial year 2023
The Members of the Management Board who hold additional memberships in supervisory boards and memberships in comparable governing bodies of enterprises are listed below.
Dr. Werner Lanthaler | |
|
Non-Executive Member des Board of Directors & Chairman of the Audit Committee: |
|
arGEN-X, Breda/NL (Stock exchange listing on the NASDAQ and Euronext) |
|
|
|
Non-Executive Member des Board of Directors: |
|
AC Immune SA, Lausanne/CH (Stock exchange listing on the NASDAQ) |
|
|
|
|
Dr. Cord Dohrmann | |
|
Member of the Supervisory Board: |
|
Eternygen GmbH, Berlin/DE* (not listed) |
|
Breakpoint Therapeutics, Hamburg/DE* (not listed) |
|
|
|
Non-Executive Member des Board of Directors |
|
FSHD Unlimited, Leiden/NL* (not listed) |
|
|
Enno Spillner | |
|
Non-Executive Member des Board of Directors & Chairman of the Audit Committee: |
|
Nanobiotix SA, Paris/FR (Stock exchange listing on the NASDAQ und Euronext) |
|
|
|
Member of the Supervisory Board: |
|
Leon Nanodrugs GmbH, München/DE* (not listed) |
|
|
* Associated company of Evotec | |
(e) Supervisory Board
Prof. Dr. Iris Löw-Friedrich, Chairwoman of the Board (Chief Medical Officer) of the UCB S.A. (Stock exchange listing on the Euronext Brüssel/Belgien); Chairwoman of the Supervisory Board and of the Compensation and Nomination Committee
Roland Sackers, Chief Financial Officer, and Management Director of QIAGEN N.V. (Stock exchange listing on the Frankfurt Stock Exchange and New York Stock Exchange; Vice Chairman of the Supervisory Board and Chairman of the Audit and Compliance Committee
Camilla Macapili, Languille, Head of Life Sciences, Mubadala Investment Company (MIC) (not listed); Member of the Supervisory Board (since June 2022)
Dr. Mario Polywka, Oxfordshire, United Kingdom, Non-independent consultant; member of the Supervisory Board (until January 3, 2024); former member of the Management Board of Evotec SE
Dr. Elaine Sullivan. London, United Kingdom, independent consultant; CEO of KELTIC Pharma Therapeutics Ltd. (until May 2023) (not listed); Board Director at the University of Edinburgh (not listed); member of the Management Board
Dr. Constanze Ulmer-Eilfort, Munich, Germany, Partner in the law firm Peters, Schönberger & Partner PSP (Munich) (not listed); Member of the Supervisory Board and Chairwoman of the ESG Committee The remuneration accrued of the Supervisory Board in the financial year was as follows:
F-76
Evotec Group
Notes to consolidated financial statements for the financial year 2023
in k€ |
|
2023 |
|
2022 |
Total remuneration of the supervisory board |
|
520 |
|
504 |
In the financial years 2023 and 2022, the compensation per Supervisory Board member amounted to k€ 50 per year. The Chairman receives k€ 125 (2022: k€ 125) and his deputy k€ 60 (2022: k€ 60) in the financial year 2023. The members of Supervisory Board committees receive k€ 10 (2022: k€ 10) per committee; the chairman of a committee receives k€ 25 (2022: k€ 25).
In the financial years 2023 and 2022, there was no share-based remuneration
The Company has a Directors and Officers liability insurance for the members of the Management Board, the Supervisory Board, its senior management and the directors of the subsidiary companies. An appropriate deductible has been agreed for the members of the Supervisory Board.
The members of the Supervisory Board and their additional memberships in supervisory boards and members in comparable governing bodies of enterprises according to Sec 125 (1) sentence 5 AktG are listed in the following:
Prof. Dr. Iris Löw-Friedrich | |
|
Member of the Supervisory Board: |
|
Fresenius SE & Co. KGaA. Bad Homburg/GER (Listed on the Frankfurt, Düsseldorf and München Stock Exchange) |
|
TransCelerate BioPharma Inc. King of Prussia/USA (not listed) |
|
|
|
Member of the Board of Directors: |
|
PhRMA Foundation, Washington DC/USA (not listed) |
|
|
Roland Sackers | |
|
Member of the Board of Directors: |
|
BIO Deutschland e.V. Berlin/GER (not listed) |
|
|
Dr. Mario Polywka | |
|
Non-executive Director: |
|
Blacksmith Medicines Inc. San Diego/USA (not listed) |
|
Exscientia Plc. Oxford/UK (Listed on the NASDAQ) |
|
Orbit Discovery Limited. Oxford/UK (Listed on the NASDAQ) C4X Discovery Holdings PLC. Manchester/UK (Listed on the London Stock Exchange) |
|
|
Dr. Elaine Sullivan | |
|
Member of the Supervisory Board/Observer (since November 2023): |
|
Zealand Pharma A/S, Søborg/DK (listed on the NASDAQ Copenhagen) (since December 2023) |
|
|
|
Non-executive Director: |
|
Active Biotech AB, Lund/SE (Listed on the NASDAQ OMX Nordic Exchange Stockholm) (until May 2023) |
|
hVIVO plc (prior Open Orphan plc), London/UK (Listed on the London AIM and Euronext Growth Stock Exchange) |
|
IP Group plc, London/UK (Listed on the London Stock Exchange) |
|
Nykode Therapeutics ASA, Oslo/NO (Listed on the Oslo Stock Exchange) |
F-77
Evotec Group
Notes to consolidated financial statements for the financial year 2023
|
|
Dr. Constanze Ulmer-Eilfort | |
|
Member of the Supervisory Board: |
|
Affimed NV, Mannheim/Germany (listed on the NASDAQ) |
|
|
|
Chairmen of the Advisory Committee: |
|
S4DX GmbH, München/GER (not listed) |
|
|
|
Member of the Advisory Board: |
|
Proxygen GmbH, Vienna/AT (not listed) |
|
|
Camilla Macapili Languille | |
|
Member of the Board of Directors: |
|
PCI Pharma Services (KPCI Holdings Limited), Philadelphia/USA (not listed) |
(22) Subsequent events
On January 3, 2024 it was announced that CEO Dr. Werner Lanthaler has decided to step down as CEO effective immediately and will not continue to serve until the end of his current term. Dr. Mario Polywka, former COO and member of the Supervisory Board, stepped in as interim CEO until June 30, 2024.
On April 24, 2024 as part of the publication of the 2023 Annual Results, the Group announced that it was currently assessing its current footprint and activities. As of June 30, 2024, the Group has recognized a provision of k€ (64,527) to cover the expected and estimated costs associated with the reorganization.
The Supervisory Board of Evotec SE has appointed Aurélie Dalbiez as new Chief People Officer with effect from June 15, 2024.
The Supervisory Board of Evotec SE has appointed Dr. Christian Wojczewski as new Chief Executive Officer with effect from July 1, 2024.
On February 7, 2024, the Management Board approved the commencement of an internal performance review and priority reset which will focus on right sizing the organization and returning to a sustainable growth track.
On July 30, 2024, Evotec signed a syndicated loan facility in the amount of €250 million with a consortium of major international financial institutions to support ongoing operations and strategic initiatives for future growth.
On August 6, 2024, Evotec issued an updated guidance for FY2024. The Group expects revenue to be in the range of €790 million to €820 million (previously low to mid-single digit percentage growth of 2023 revenue (2023: €781.4 million)), an adjusted EBITDA in the range of €15 million to €35 million (previously mid-double digit percentage growth of 2023 adjusted EBITDA (2023: €66.4 million)) and unpartnered R&D expenditures in the range of €50 million to €60 million (previously mid-single to low double digit percentage reduction of 2023 unpartnered R&D expenditures (2023: €64.8 million)).
F-78
Evotec Group
Notes to consolidated financial statements for the financial year 2023
Some of the Group’s borrowing is subject to covenants based on Net Debt leverage. The Group has determined that it would not meet some of those covenants as of June 30, 2024 and September 30, 2024, and has subsequently obtained waivers before June 30, 2024. The Group expects to meet its financial covenants in the following periods going forward.
Hamburg, August 14, 2024
Dr. Christian Wojczewski |
|
Aurélie Dalbiez |
|
Dr. Cord Dohrmann |
|
|
|
|
|
Dr Matthias Evers |
|
Dr. Craig Johnstone |
|
Laetitia Rouxel |
F-79
Exhibit 1.1
Non-binding convenience translation
A r t i c l e s o f A s s o c i a t i o n
of Evotec SE
I.
General Provisions
§ 1
Company and Registered Office
(1) |
The name of the Company shall be: |
Evotec SE.
(2)The registered office of the Company shall be in Hamburg.
§ 2
Object of the Company
(1) |
The object of the Company shall be research activities in the field of biologically functional synthetic, semi-synthetic, and natural active agents with chemical and molecular biological processes including their link with other areas of activity, in particular also the information-technology, the development, the manufacture and the sales and distribution of biotechnological, chemical, pharmaceutical and diagnostic products and processes, software and technical equipment, including the granting of licences, the development of evolutionary processes of optimisation as well as the provision of services connected with this. |
(2) |
The Company may enter into all transactions suitable for directly or indirectly promoting the Company’s purpose. In particular, the Company may establish, take over, represent or acquire participations in other companies of the same or similar category. The Company may pursue its object in whole or in part through subsidiaries and associated companies. |
§ 3
Duration and Fiscal Year
(1) |
The Company is founded for an indefinite period of time. |
(2) |
The fiscal year shall be the calendar year. |
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§ 4
Public Announcements
(1) |
The public announcements of the Company shall be published in the Federal Gazette (“Bundesanzeiger”). |
(2) |
Information to the holders of securities of the Company, which are admitted to trading may, with their approval, also be provided to them via remote data transmission. |
II.
Share Capital and Shares
§ 5
Share Capital and Shares
(1) |
The share capital of the Company amounts to € 177,185,736.00. |
(2) |
The share capital is divided into 177,185,736 no-par value bearer shares. |
(3) |
In case of capital increase, the level of profit participation of the new shares may be determined in deviation from section 60 of the German Stock Corporation Act. |
(4) |
The shares are made out to the bearer. The form of the shares and the dividend and renewal coupons shall be determined by the Management Board with the approval of the Supervisory Board. Global certificates may be issued. Shareholders are not entitled to claim individual share certificates or to claim the issuance of dividend and renewal coupons where this is permitted by law and unless certification is necessary according to the rules of a stock exchange on which the shares are listed for trade. |
(5) |
The Management Board is authorised to increase the share capital of the Company by up to € 35,321,639.00 by 21 June 2025, with the consent of the Supervisory Board, by issuing at one time or multiple times up to a total of 35,321,639 new ordinary bearer shares without par value (no-par value shares) (Authorised Capital 2022). The shareholders are generally entitled to a subscription right. The new shares can also be taken over by one or several credit institutions subject to the obligation that the shares will be offered to shareholders for purchase. |
The Management Board, with the consent of the Supervisory Board, is authorised to exclude the subscription right of shareholders one time, or several times:
a) |
to the extent required, in order to exclude possible fractional amounts from the subscription right of shareholders; |
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b) |
to the extent required, in order to grant holders of options or conversion rights and/or obligations resulting from options or convertible bonds a subscription right for new shares at a level to which they would be entitled as a shareholder after exercising the option and/or conversion right or meeting the conversion obligation; |
c) |
to the extent that the new shares are issued in return for cash contributions and the proportional share of the share capital attributable to the shares to be newly issued does not in the aggregate exceed the amount of a total of 10% of the share capital existing at the time of effectiveness and at the time of the first exercise of this authorisation for the exclusion of the subscription right (the “Maximum Amount”), and the issue price of the new shares is not significantly below the market price of the existing listed shares of the Company at the time of the final determination of the issue price; |
d) |
in the event of a capital increase against cash contributions, insofar as the new shares are placed on a foreign stock exchange in the course of a stock exchange listing; |
e) |
to the extent the new shares are issued in return for contributions in kind, in particular in the form of companies, parts of companies, shareholdings in companies, licences or receivables. |
The shares issued under the above authorisations to exclude subscription rights are limited to an amount not exceeding 10% of the share capital, neither at the time this authorisation becomes effective either at the time this authorization takes effect or at the time of the first utilization of this authorisation. Also counted towards the aforementioned limit are treasury shares sold with the exclusion of subscription rights during the period of this authorisation until new shares without subscription rights are issued, and those shares that are issued or will be issued for the purpose of servicing financial instruments with conversion and/or option rights and/or conversion and/or option obligations, insofar as the financial instruments are issued with the exclusion of subscription rights during the period of this authorisation until new shares without subscription rights are issued. If and to the extent that the Annual General Meeting, after the exercise of an authorisation to exclude subscription rights which was counted towards the 10% limit referred to above, renews such authorisation to exclude subscription rights, such exercise is no longer counted.
Counted towards the Maximum Amount mentioned above is the share capital attributable to shares that are issued or will be issued for the purpose of servicing convertible and/or warrant-linked bonds that will be issued after 16 June 2021 in analogous application of section 186 para 3 sentence 4 AktG with the exclusion of subscription rights, or which will be sold after 16 June 2021 in analogous application of section 186 para 3 sentence 4 AktG.
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An exercise is no longer counted to the extent that authorisations to issue convertible and/or warrant-linked bonds according to section 221 para 4 sentence 2, section 186 para 3 sentence 4 AktG, or for the sale of treasury shares according to section 71 para 1 no. 8, section 186 para 3 sentence 4 AktG, after an exercise of such authorisations which was counted, are renewed by the Annual General Meeting.
The Management Board is authorised, with the consent of the Supervisory Board, to determine the further details of the increase in capital and the conditions of the issuance of shares. The Supervisory Board is authorised to amend § 5 of the Articles of Association after the complete or partial implementation of the increase in share capital in accordance with the respective use of the authorised capital, and after the elapse of the period of time for which authorisation was granted.
(6) |
The share capital of the company is increased by up to € 1,200,000.00 through the issue of up to 1,200,000 new bearer shares of the company with no nominal value (no-par-value shares). The contingent capital serves to fulfil subscription rights that were issued and exercised based on the authorisation decided by the General Meeting on 16 June 2020 under agenda item 6 a). The contingent capital increase will only take place to the extent that holders of subscription rights actually make use of their right to subscribe to company shares. The issue of shares takes place at the exercise price determined according to agenda item 6 a) sub-paragraph 8 of the General Meeting resolution of 16 June 2020 as the issue amount; Section 9, para. 1 AktG remains unaffected. The new shares are entitled to dividends for the first time for the financial year for which, at the time of their issue, no General Meeting resolution as to the appropriation of the net income has taken place. The management board of the company, or insofar as the members of the management affected, the Supervisory Board is authorised to determine further details of the contingent capital increase and its implementation. The Supervisory Board is further authorised to alter section 5 of the Articles of Association in line with the respective implementation of the capital increase, as well as after expiry of the authorisation or after expiry of the deadline set for exercising the option rights. |
(7) |
The share capital of the Company is increased by up to € 6,000,000.00 through the issue of up to 6,000,000 new ordinary bearer shares of the Company. The conditional capital serves to fulfil subscription rights under the Company's Share Performance Plan 2022 of the Company to members of the Management Board executives and employees, based on the authorisation resolved by the Annual General Meeting on June 22, 2022, under agenda item 7 a). The contingent capital increase will only take place to the extent that holders of subscription rights actually make use |
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of their right to subscribe to company shares. The issue of shares takes place at the exercise price determined according to agenda item 7 a) sub-paragraph 8 of the General Meeting resolution of 22 June 2022 as the issue amount; Section 9, para. 1 AktG remains unaffected. The new shares are entitled to dividends for the first time for the financial year for which, at the time of their issue, no General Meeting resolution as to the appropriation of the net income has taken place. The manage-ment board of the company, or insofar as the members of the manage-ment affected, the Supervisory Board is authorised to determine further details of the contingent capital increase and its implementation. The Supervisory Board is further authorised to alter section 5 of the Articles of Association in line with the respective implementation of the capital increase, as well as after expiry of the authorisation or after expiry of the deadline set for exercising the option rights.
(8) |
(omitted) |
(9) |
(omitted) |
(10) |
The Company’s share capital is conditionally increased by up to € 35,390,530.00 through the issue of up to 35,390,530 new common bearer shares without nominal value (no-par value shares) with a proportionate amount of € 1.00 of the share capital attributable to each no-par value share. The contingent capital increase serves to issue no-par value bearer shares to the owners or creditors of convertible bonds and/or warrant-linked bonds, participation rights and/or income bonds (or a combination of such instruments) that are issued by Evotec SE or its directly or indirectly associated companies against cash contribution on the basis of the authorisation resolved by the Annual General Meeting on 20 June 2023 under agenda item 5, and grant a conversion or option right to new no-par value shares of the Company or designate a conversion obligation. |
The new no-par value bearer shares from the contingent capital may only be issued at a conversion or option price that corresponds to the requirements in the authorisation resolved by the Annual General Meeting on 20 June 2023 under agenda item 5.
The contingent capital increase shall only be carried out to the extent that option or conversion rights are utilised, or the owners or creditors obligated to convert carry out their duty of conversion, and to the extent that no treasury shares or new shares from an exploitation of authorised capital are utilised for servicing. The new no-par value bearer shares shall participate in profit from the start of the fiscal year in which they are issued through the exercise of option or conversion rights or the performance of conversion obligations. The Management Board is authorised to define the further details of the contingent capital increase and its implementation.
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The Supervisory Board is authorised to adjust § 5 of the Articles of Association in accordance with the respective issue of the new no-par value bearer shares and to carry out all other related adjustments of the Articles of Association that concern only the form. This also applies analogously if the authority to issue option or conversion obligations is not exercised by the expiry of the authorisation period, or if the contingent capital is not exploited by the expiry of the deadlines for exercising option and conversion rights or for fulfilling conversion or option obligations.
(11) |
The share capital of the Company is conditionally increased by up to € 378,224.00 through the issue of up to 378,224 new ordinary bearer shares of the Company without par value (no-par value shares). The conditional capital serves the fulfilment of subscription rights that have been issued based on the authorisation resolved by the Annual General Meeting on 9 June 2015 under agenda item 6, letter a) and have been exercised. The conditional capital increase only occurs to the extent that holders of subscription rights make use of their subscription rights for the purchase of shares of the Company. The issue of shares occurs at the exercise price determined pursuant to agenda item 6, letter a), subparagraph 8 of the Annual General Meeting resolution of 09 June 2015 as issue price; section 9 para 1 AktG remains unaffected. The new shares are entitled to dividends for the first time for the fiscal year for which, at the time of their issue, no resolution of the Annual General Meeting for the appropriation of the distributable profit (Bilanzgewinn) has been adopted yet. The Supervisory Board is authorised to determine further details of the conditional capital increase and its implementation. The Supervisory Board is further authorised to amend § 5 of the Articles of Association in line with the respective implementation of the capital increase, as well as after expiry of the authorisation or after expiry of the deadline set for exercising the option rights. |
(12) |
The share capital of the Company is conditionally increased by up to € 4,962,269.00 through the issue of up to 4,962,269 new ordinary bearer shares of the Company without par value (no-par value shares). The conditional capital serves to fulfil subscription rights that have been issued based on the authorisation resolved by the Annual General Meeting on 14 June 2017 under agenda item 8 letter a) and have been exercised. The conditional capital increase only occurs to the extent that holders of subscription rights make use of their subscription rights for the purchase of shares of the Company. The issue of shares takes place at the exercise price determined according to agenda item 8 a) subparagraph (8) of the Annual General Meeting resolution of 14 June 2017 as the issue price; section 9 para 1 AktG remains unaffected. The new shares are entitled to dividends for the first time for the fiscal year for which, at the time of their issue, no resolution of the Annual General Meeting for the appropriation of the distributable profit (Bilanzgewinn) has been adopted yet. |
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The Supervisory Board is authorised to determine further details of the conditional capital increase and its implementation. The Supervisory Board is further authorised to amend § 5 of the Articles of Association in line with the respective implementation of the capital increase, as well as after expiry of the authorisation or after expiry of the deadline set for exercising the option rights.
III.
Corporate bodies at the Company
§ 6
Two-tier board system
(1) |
The Company shall have a two-tier management and supervisory board system, consisting of a management organ (Management Board) and a supervisory organ (Supervisory Board). |
(2) |
The Company shall have the following corporate bodies: |
a)The Management Board (management organ)
b)The Supervisory Board (supervisory organ)
c)The Annual General Meeting.
IV.
Management Board
§ 7
Composition
(1) |
The Management Board shall comprise one person or several persons. The Supervisory Board determines the number of Management Board members. The appointment of deputy Management Board members is possible. |
(2) |
The appointment of ordinary and deputy members to the Management Board shall be for a period of up to five years. |
(3) |
The Supervisory Board may appoint a member of the Management Board as Chairman of the Management Board as well as further members of the Management Board as Deputy Chairmen. |
(4) |
The resolutions of the Management Board shall be passed by simple majority if not otherwise stipulated by law or the rules of procedure of the |
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Management Board. Should a Chairman of the Management Board be appointed, his vote shall be decisive in the event of a parity of votes.
(5) |
The Management Board shall determine its own rules of procedure if the Supervisory Board does not decree rules of procedure for the Management Board. |
§ 8
Representation and Management
(1) |
If only one member of the Management Board is appointed, he shall represent the Company alone. If several Management Board members are appointed, the Company shall be legally represented by two members of the Management Board or by one member of the Management Board acting jointly with a together with a holder of general commercial power of attorney (Prokurist). |
(2) |
The Supervisory Board may grant Management Board members the right to solely represent the Company. It may also grant Management Board members the right of representing the Company also in such legal transactions as may be undertaken with or against such members of the Management Board in their capacity as representatives of a third party. Section 112 AktG shall remain unaffected. |
(3) |
The following types of transactions may only be engaged in with the approval of the Supervisory Board: |
a) |
Acquisition, disposal or liquidation of business entities, interests in business entities or parts of business entities, provided the value involved in an individual case (including liabilities taken on) exceeds a value to be specified by the Supervisory Board in the rules of procedure for the Management Board; |
b) |
Entering into intercompany agreements as defined under section 291 and section 292 AktG; |
c) |
Expanding into new business segments or changing or discontinuing existing business segments where the measure involved is of material importance for the Group; the Supervisory Board shall specify the criteria for what constitutes ‘material importance’ in the rules of procedure for the Management Board. |
(4) |
The Supervisory Board may stipulate in the rules of procedure for the Management Board that further specific types of transactions may only be undertaken with its approval. In addition, the Supervisory Board may also decide to make other specific types of transactions subject to its approval at any time. |
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V.
Supervisory Board
§ 9
Composition and Term of Office
(1) |
The Supervisory Board of the Company consists of 6 members. |
(2) |
If not otherwise specified in the resolution of the Annual General Meeting, members of the Supervisory Board shall be appointed for a period lasting until the end of the Annual General Meeting, which decides on the ratification of the acts of the Supervisory Board for the fourth fiscal year after the start of the term of office. The fiscal year in which the term of office begins is not counted. The Supervisory Board may be re-elected. |
(3) |
For all members of the Supervisory Board, one or more substitute members may be appointed by the Annual General Meeting who shall become members of the Supervisory Board in the order of their appointment as soon as a member of the Supervisory Board quits his position in the Supervisory Board before the expiration of his term of office. This shall not apply if the Annual General Meeting elects a successor prior to the departure of the member of the Supervisory Board. The substitute member shall assume the position of the departing member for the duration of the remaining term, however, for a maximum period lasting until the end of the Annual General Meeting in which a new election is held for the departing member. |
(4) |
If a member of the Supervisory Board is elected to replace a member departing before the expiry of the latter member’s term of office, the relevant term of office of the replacement member shall last for the remaining term of office of the departing member. |
(5) |
Every member of the Supervisory Board and every substitute member may resign from his position with a four-week notice period and without having to state specific reasons for doing so, through written declaration addressed to the Chairman of the Supervisory Board or – in the event that the Chairman of the Supervisory Board is himself resigning – to his deputy. If for good cause, the resignation may take effect immediately. |
§ 10
Chairman, Vice Chairman
(1) |
Immediately after the Annual General Meeting that newly elected all shareholder members of the Supervisory Board, the Supervisory Board shall elect a Chairman and one or more deputies amongst its members in |
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a meeting to be held without any special invitation. For the election of the Chairman, the oldest member of the Supervisory Board in terms of age shall have the chair. If the Chairman or the Vice Chairman resigns from office before expiration of his term of office, the Supervisory Board shall hold a new election to replace the resigning Chairman or Vice Chairman.
(2) |
Declarations of the Supervisory Board and its committees shall be made by the Chairman or the Vice Chairman on behalf of the Supervisory Board. The Chairman the Vice Chairman shall also have the right to receive specific declarations on behalf of the Supervisory Board. |
§ 11
Internal Order and Adoption of Resolutions
(1) |
The Chairman or the Vice Chairman in case of the incapacitation of the Chairman shall convene the meetings of the Supervisory Board by giving two weeks’ notice stating the place and time of the meeting. The notice shall be sent in writing, by telephone, telegraphically, fax or through other means of electronic communication to the address last disclosed in writing to the Management Board. The agenda shall be disclosed along with the notice. The individual items of the agenda shall be precisely specified in such a way that absentees are able to utilise their right of commenting in writing. The Chairman may shorten the notice period to up to three days in urgent cases if it is proven that the notice has been received by all members of the Supervisory Board. |
(2) |
The resolutions of the Supervisory Board shall be usually adopted in meetings. However, meetings and the adoption of resolutions are also permitted in writing, by telephone, telegraphically, by fax or through other means of electronic communication, if so determined by the Chairman of the Supervisory in individual cases. Combined resolutions, whereby a portion of the votes are submitted orally or by means of electronic communication, are also permitted. |
(3) |
The Supervisory Board shall be deemed to constitute a quorum if at least half of its members, as statutorily required, participate in the adoption of a resolution in person or in writing or by voting through other permissible means. Any member who abstains from voting on the resolution is deemed to have participated. |
(4) |
Resolutions of the Supervisory Board shall be adopted with a simple majority of the votes cast. In case of a parity of votes, the vote of the Chairman in the relevant meeting shall be decisive – also in elections. |
(5) |
Statements and declarations made and received by the Supervisory Board in order to implement the resolutions it has passed, and other Supervisory Board documents, notices and measures shall be submitted by |
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the Chairman, or if he is physically or legally prevented from doing so, by his deputy.
(6) |
A written record of the meetings and resolutions of the Supervisory Board and its committees shall be prepared and signed by the Chairman of the meeting. |
(7) |
The Supervisory Board may, within the scope of compelling legal regulations as well as provisions of these Articles of Association, issue its own rules of procedure. |
§ 12
Committees of the Supervisory Board
The Supervisory Board shall have the right to form committees amongst its members and delegate individual parts of its duties and responsibilities to such committees for independent execution within the scope of legal provisions.
§ 13
Compensation
(1) |
In addition to reimbursing their out-of-pocket-expenses and any VAT payable in connection with their compensation and expenses for each fiscal year, the members of the Supervisory Board get paid a fixed compensation in accordance with the following provisions starting with the 2019 fiscal year. |
(2) |
The fixed annual compensation payable upon expiration of the given fiscal year shall be € 50,000.00 per Supervisory Board member. The Chairman of the Supervisory Board shall be paid € 125,000.00 and the Vice Chairman shall be paid € 60,000.00. |
(3) |
Supervisory Board members serving on its committees shall be paid € 10,000.00 per committee membership in addition to the fixed compensation according to paragraph (1); the Chairman of a committee shall be paid € 25,000.00. The foregoing amounts for service on committees shall apply solely if the respective committee met during the given fiscal year. The additional committee compensation is payable at the same time as the Supervisory Board compensation mentioned in paragraph (2). |
(4) |
The compensation payable to Supervisory Board members shall be prorated if they do not serve on the Supervisory Board during the entire fiscal year. If a member of the Supervisory Board does not serve in a position that is linked to an additional/higher level of compensation during the |
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entire fiscal year, the foregoing sentence shall apply analogously to the compensation applicable to the respective position.
(5) |
The Company shall insure members of the Supervisory Board at its own cost against civil law and criminal law-related claims in connection with the exercise of their mandates at an appropriate level (D&O) and assume the costs of the legal defence in connection with such claims as well as taxes possibly incurred on such cost. |
(6) |
Insofar as members of the Supervisory Board take on the necessary training and further education measures required for their tasks in accordance with the provisions of the German Corporate Governance Code, all costs related to these measures will be reimbursed by the Company. |
§ 14
Confidentiality
The members of the Supervisory Board are required to maintain secrecy regarding confidential data and secrets of the Company of which they become aware in connection with the performance of their duties as members of the Supervisory Board. This duty of secrecy also applies following their departure from office.
VI.
Annual General Meeting
§ 15
Place, Convening and Right of Participation
| (1) | The Annual General Meeting shall be held in the town or city where the Company’s registered office is located or in any other German city with more than 100,000 inhabitants or in any other German city where a stock exchange is located. |
| (2) | The Annual General Meeting shall be convened by the Management Board if resolutions are to be adopted or if a convening is in the interest of the Company for other reasons. The Annual General Meeting which decides on the ratification of the acts of the Management Board and the Supervisory Board, the appropriation of profits, the election of the auditor and if necessary, the approval of the annual financial statements (Annual General Meeting) shall be held within the first six months of every fiscal year. |
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| (3) | The notice of the Annual General Meeting shall be published via a single publication in the Federal Gazette. The German statutory provisions do apply for the notice period. |
| (4) | Every shareholder who has registered with the Company in accordance with the following requirements prior to the Annual General Meeting and has provided evidence to the Company of their right to participate in the Annual General Meeting and to exercise their voting right shall be entitled to participate in the Annual General Meeting and to exercise the voting right. |
The registration shall be made in text form (section 126b BGB), in German or English, specifying the number of shares to which the registration refers. It must be received by the Company at the address specified to that end in the notice of the Annual General Meeting six days ahead of the Annual General Meeting. The notice of the Annual General Meeting may provide for a shorter deadline to be specified in days.
Proof of the shareholdings in text form (section 126b BGB) prepared by the depositary bank shall be sufficient and necessary for evidencing a shareholder’s right to participate in the Annual General Meeting and to exercise their voting right. Such proof is to relate to the beginning of the 21st day prior to the meeting and must be received by the Company at the address notified for that purpose in the notice six days prior to the meeting. The notice of the Annual General Meeting may provide for a shorter deadline to be specified in days. The proof shall be provided in German or English.
| (5) | The Management Board is authorised to make provisions such that shareholders may also participate in the Annual General Meeting without being physically present on site and without having to appoint a proxy, as well as to exercise all or some of their rights, in whole or in part, by means of electronic communications (online participation). The Management Board is further authorised to determine both the scope of and the procedure for participating online. These requirements shall be announced at the time the Annual General Meeting is convened. |
| (6) | The Management Board is entitled, but not obliged to disclose information on the Company’s homepage before the Annual General Meeting. The information disclosed has to be available over a period of at least seven days before the Annual General Meeting begins as the case may be. Furthermore, it has to be continuously accessible during the Annual General Meeting. |
| (7) | The Management Board is authorised to enable shareholders to exercise their voting right in writing or by electronic means of communication without being physically present at the Annual General Meeting (postal voting). It can determine the details of the postal voting process. Should the |
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Management Board make use of this authorisation, detailed information shall be provided in the notice of the Annual General Meeting.
| (8) | The Management Board is authorized to provide that the General Meetings of the Company to be held by the end of June 31, 2025, shall be held without the physical presence of the shareholders or their proxies at the location of the General Meeting (virtual General Meeting). |
| (9) | The members of the Supervisory Board, with the exception of the chairman of the meeting, may, in consultation with the Chairman of the Supervisory Board or the chairman of the meeting, participate in the Annual General Meeting by means of video and audio transmission if the relevant member of the Supervisory Board is prevented from physically attending the location of the Annual General Meeting for business reasons, the member of the Supervisory Board is domiciled abroad, attendance at the location of the Annual General Meeting would involve unreasonably long travel times, or the Annual General Meeting is held as a virtual Annual General Meeting. |
§ 16
Chair in the Annual General Meeting, Transmission
(1) |
The Annual General Meeting will be chaired by the Chairman of the Supervisory Board or by another member of the Supervisory Board designated by the Supervisory Board or by any other person designated to do so. |
(2) |
The Chairman of the meeting shall conduct the deliberations and determine the order of the items of the agenda as well as the nature and further details of voting. The Chairman of the meeting is authorised to restrict shareholders’ rights of asking questions or holding speeches to a suitable duration. |
(3) |
The Chairman of the Annual General Meeting is authorised to permit a partial or complete audiovisual broadcast of the Annual General Meeting using suitable electronic media. |
§ 17
Adoption of Resolutions in the Annual General Meeting
(1) |
When votes are taken, each share confers one vote. |
(2) |
The voting right may be exercised by proxies. Granting and revoking the power of attorney by which a proxy is appointed, as well as evidencing the authorisation to the Company, must be made in text form unless required otherwise by law (Section 126b BGB). The notice of the Annual |
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General Meeting may simplify the requirement as to the form. Section 135 AktG remains unaffected. The evidence of the authorisation may be sent to the Company by electronic communications to be further detailed in the notice of the Annual General Meeting.
(3) |
Resolutions of the Annual General Meeting shall be passed by a simple majority of the votes cast and, where a capital majority is required, by a simple majority of the share capital represented when the vote is taken, unless otherwise required by law or the Articles of Association. A deletion or amendment of § 17 para 3 sentence 1 and sentence 2 of the Articles of Association requires a majority of at least three-quarters of the share capital represented when the vote is taken. |
(4) |
A simple majority vote shall be necessary for all elections of Supervisory Board members. In cases of elections involving two or more candidates, where no candidate receives an absolute majority of votes in the first round of voting, a runoff election shall be held between the two candidates who received the highest number of votes in the first round. A relative majority of votes suffices to win the second round of voting. If both candidates receive the same number of votes in the second round, the Chairman of the meeting shall draw lots to determine the winner. |
(5) |
The Management Board is authorised to enable shareholders to exercise their voting right in writing or by electronic means of communication without being physically present at the Annual General Meeting (postal voting). It may determine the details of such postal voting. These details shall be announced in the notice of Annual General Meeting. |
VII.
Financial Statements and Appropriation of Distributable Profit
§ 18
Financial Statements and Appropriation of Distributable Profit
| (1) | The Management Board shall prepare the annual financial statements (statement of financial condition and income statement), the management report, the consolidated financial statements and the Group management report for the previous fiscal year within the statutory periods and shall submit them to the Supervisory Board and to the auditors as soon as they have been prepared. At the same time, the Management Board shall present to the Supervisory Board the proposal of the Management Board for the resolution to be adopted by the Annual General Meeting on the appropriation of the distributable profit. |
(2) |
The Supervisory Board shall examine the annual financial statements, the management report, the proposal for the resolution on the appropriation of the distributable profit and the consolidated financial statements and Group management report and report the results of its examination |
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in writing to the Annual General Meeting. The Supervisory Board shall submit the report within one month after the receipt of the proposals to the Management Board and declare at the end of the report whether or not it approves the annual financial statements and consolidated financial statements prepared by the Management Board. If the Supervisory Board approves the annual financial statements, the latter shall be deemed adopted.
(3) |
The Annual General Meeting shall decide on the appropriation of the distributable profit resulting from the adopted annual financial statements. |
VIII.
Final Provisions
§ 19
Amendments to the Wording of these Articles of Association
The Supervisory Board is empowered to amend the Articles of Association only in their wording.
§ 20
Formation Expenses
(1) |
The Company shall bear the expenses in connection with its formation, entry into the commercial register and publications in this respect, up to the amount of DM 50,000.00. The same applies to costs of the abovementioned type as well as consultancy expenses in connection with the transformation of the Company from the previous EVOTEC Biosystems GmbH. |
(2) |
The expense involved in forming Evotec SE by converting Evotec AG into a European public limited-liability company (SE) shall be borne by the Company up to an amount of € 200,000.00. |
***
Exhibit 2.3
DESCRIPTION OF SECURITIES
The following description sets forth certain material terms and provisions of ordinary shares and American Depositary Shares representing ordinary shares of Evotec SE (“us,” “our,” “we” or the “Company”) that are registered under Section 12 of the U.S. Securities Exchange Act of 1934, as amended. This description also summarizes certain provisions of our articles of association and German law as of the date of the filing of the Annual Report on Form 20-F of which this exhibit forms a part. This summary does not purport to be complete and is qualified in its entirety by the provisions of our articles of association filed as an exhibit to the Annual Report on Form 20-F of which this exhibit is a part, as well as to the applicable provisions of German legislation on stock corporations. We encourage you to read our articles of association and applicable German legislation on stock corporations carefully.
Ordinary Shares
We were incorporated as a company with limited liability (Gesellschaft mit beschränkter Haftung) under the laws of Germany with the name EVOTEC BioSystems GmbH, formerly registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Hamburg, Germany, under the number HRB 54731. On August 7, 1998, we were converted to a German stock corporation (Aktiengesellschaft) under the laws of Germany under the name EVOTEC BioSystems Aktiengesellschaft, formerly registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Hamburg, Germany, under the number HRB 68223. On February 28, 2002, we changed our name into Evotec OAI AG and on June 8, 2005, we changed our name to Evotec AG. On March 29, 2019, the date on which the change of legal form and company was registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Hamburg, Germany, we converted from Evotec AG to a Societas Europaea with the legal name Evotec SE. The principal legislation under which we operate and our shares are issued are the Council Regulation (EC) No 2157/2001 of October 8, 2001 on the Statute for a European company (SE), the German Law on the Implementation of Council Regulation (EC) No 2157/2001 of October 8, 2001 on the Statute for a European company (SE) (Gesetz zur Ausführung der Verordnung (EG) NR. 2157/2001 des Rates vom 8. Oktober 2001 über das Statut der Europäischen Gesellschaft (SE) (SE-Ausführungsgesetz—SEAG)) and the German Stock Corporation Act (Aktiengesetz), in each case as amended.
We are registered with the commercial register (Handelsregister) of the local court (Amtsgericht) in Hamburg, Germany, under the number HRB 156381.
Our statutory seat is in Hamburg, Germany, and our business address is Essener Bogen 7, 22419 Hamburg, Germany. Copies of our Articles of Association (Satzung) are publicly available from the commercial register (Handelsregister) at the local court of Hamburg, Germany, electronically at www.evotec.com or www.unternehmensregister.de and as an exhibit to this Annual Report.
As of December 3, 2023, our authorized share capital amounts to €212,507,375.00, which consists of 212,507,375 ordinary shares of no-par value bearer shares (Inhaberaktien), of which 177,185,736 are issued and outstanding, each with a notional amount per ordinary share of €1.00.
Form, Certification and Transferability of Shares
The form and contents of our share certificates are determined by our Management Board with the approval of the Supervisory Board. A shareholder’s right to certification of its shares is excluded, to the extent permitted by law and to the extent that certification is not required by the stock exchange on which the shares, rights, or certificates representing them are admitted to trading. We have issued global share certificates that represent multiple or all our shares.
Our shares are freely transferable under German law.
Anti-takeover Provisions of Our Charter Documents
Under German law, the management board of the target company of a takeover offer generally may not take any action that could prevent the success of the takeover offer, with specific exceptions. Our Articles of Association (Satzung) do not include any provisions that would have a direct effect of delaying, deferring, or preventing a change of control.
However, certain aspects, such as the existence of an authorized capital and a conditional capital, the existence of change of control provisions in the service agreements of the Management Board members, as well as the fact that the Company has two shareholders holding more than 10% of the voting rights, might have an impact on a party’s willingness or ability to carry out a hostile takeover.
Future Changes to the Share Capital
Conditional Capital
Pursuant to our Articles of Association (Satzung), our share capital is conditionally increased for the issuance of new, bearer shares with no par value. The conditional capital may only be used: (i) to the extent that holders of subscription rights under our incentive plans make use of their right to subscribe for new shares in the Company; or (ii) to issue shares to the owners or creditors of convertible bonds and/or warrant-linked bonds, participation rights and/or income bonds (or a combination of such instruments) that grant a conversion or option right to new no par value shares or designate a conversion obligation against cash contribution, issued by us or our directly or indirectly associated companies.
Preemptive Rights
German law generally provides shareholders with preemptive rights when new shares, convertible bonds, bonds with warrants, profit participation rights or participating bonds are issued. This requirement, however, may also be satisfied by way of a credit institution subscribing for the securities and then offering them to the shareholders for purchase (mittelbares Bezugsrecht).
Further, it is possible for a shareholder resolution approved by three-quarters of the share capital voting on the resolution to exclude preemptive rights both where the general meeting itself resolves that the new securities to be issued and in relation to the authorized capital, i.e., an authorization to the Management Board to, with the consent of the Supervisory Board, resolve on the issuance of new securities; provided, however, that in each case the exclusion or the authorization to so exclude preemptive rights, respectively, must be justified by specific facts, in accordance with established case law of the German Federal Court of Justice (BGH). The German Federal Court of Justice (BGH) considers the exclusion of subscription rights justified if it (i) serves a purpose in the company’s interests, (ii) is suitable for attaining such purpose, and (iii) is necessary and appropriate. Additionally, the management board must submit a written report to the shareholders’ meeting in which it presents the reasons for the exclusion of the subscription rights.
Accordingly, under our Articles of Association (Satzung), the Management Board may, with the consent of the Supervisory Board, exclude such preemptive rights in a capital increase from the authorized capital in the following circumstances:
| ● | to the extent required, in order to exclude possible fractional amounts from the subscription right of shareholders. |
| ● | to the extent required, in order to grant holders of options or conversion rights and/or obligations resulting from options or convertible bonds a subscription right for new shares at a level to which they would be entitled as a shareholder after exercising the option and/or conversion right or meeting the conversion obligation. |
| ● | to the extent that the new shares are issued in return for cash contributions and the proportional share of the share capital that applies to the shares to be newly issued does not in the aggregate exceed the amount of a total of €17,660,819 or, should this amount be lower, of a total of 10% of the share capital existing at the |
time of effectiveness and at the time of the first exercise of this authorization for precluded subscriptions, and the issue price of the new shares is not significantly below the market price of the existing listed shares of the Company at the time of the final determination of the issue price;
| ● | to the extent of a capital increase for subscription in cash, if the new shares are sold in the course of an initial public offering at a foreign exchange; and |
| ● | to the extent the new shares are issued in return for contributions in kind, in particular in the form of companies, parts of companies, shareholdings in companies, licenses or receivables. |
The total number of new shares issued from the authorized capital and under exclusion of subscription rights pursuant to aforementioned bullets above may not exceed 10% of the share capital, either at the time this authorization takes effect or at the time it is first exercised. Also counted towards the 10% limit are treasury shares sold during the period of this authorization until new shares without subscription rights are issued excluding subscription rights, and those shares that are issued or will be issued for the purpose of servicing convertible and/or warrant-linked bonds and/or option obligations, insofar as the financial instruments are issued during the period of this authorization until new shares without subscription rights are issued excluding the shareholders’ subscription rights. After authorization to exclude subscription rights has been exercised and counted towards the 10% limit, the shares are no longer counted if and insofar as the Annual General Meeting renews the authorization to exclude subscription rights.
Shareholders’ Meetings and Voting Rights
Pursuant to our Articles of Association (Satzung), shareholders’ meetings may be held at our seat or in any municipality in Germany with more than 100,000 inhabitants or in any other German city where a stock exchange is located. Generally, shareholders’ meetings are convened by our Management Board, or our Supervisory Board. Shareholders representing in the aggregate at least five percent of our shares may, subject to certain formal prerequisites, request that a shareholders’ meeting be convened. Shareholders representing in the aggregate at least five percent of our shares or owning shares with an aggregate nominal value of at least €500,000 may request the addition of one or several items to the agenda of any shareholders’ meeting. Invitations to shareholders’ meetings must be published in the German Federal Gazette (Bundesanzeiger) at least 36 days before the shareholders’ meeting.
Shareholders may participate in and vote in the shareholders’ meeting if they are registered as a shareholder with the Company’s share register. A shareholder who wishes to attend the shareholders’ meeting—either in person or by proxy, which may also be appointed by us (Stimmrechtsvertreter)—must register for the meeting, which registration must occur no later than six days before the meeting (or at a later date, if so determined by our Management Board).
Each share carries one vote at a shareholders’ meeting. Resolutions are, in accordance with our Articles of Association (Satzung), generally taken by simple majority of the votes cast. However, under applicable German and European law, a number of resolutions must be passed by either a three- quarter majority of the votes cast, or a three-quarter majority of the share capital represented at the meeting. The fact that in these cases the quorum is determined in relation to the share capital or shares present (as opposed to, for example, all shares eligible to vote) means that holders of a minority of our shares could potentially control the outcome of resolutions.
Claims against Directors and Shareholders’ Derivative Actions
Under German law, generally, the company, rather than its shareholders, is the proper claimant in an action with respect to a wrong committed against the company, or in cases where there is an irregularity in the company’s internal management or supervision. Therefore, such claims may only be raised by the company represented by its management board, or, in the case of a wrong committed by a member of the Management Board, by the Supervisory Board. This concerns, in particular, claims against members of the Management Board or the Supervisory Board.
However, pursuant to German case law, the Supervisory Board is obliged to pursue the company’s claims against the Management Board, unless the interest of the company keeps them from doing so. Further, the Management Board, or, if a claim is against a member of the Management Board, the Supervisory Board, is obliged to pursue the company’s claims against the designated individuals if so, resolved by a simple majority of votes cast during a shareholders’ meeting. With a simple majority of votes, shareholders can also request that a representative pursue the claim on behalf of the company. The court may appoint such a representative upon the request of shareholders holding at least 10% of the company’s share capital or a participation of at least €1,000,000 in the share capital.
If the company is unable to fulfill its third-party obligations, the company’s creditors may pursue the company’s damage claims against members of the Management Board for certain wrongdoings.
Under certain circumstances, shareholders can bring forward damage claims of the company against its management on their own behalf. In order to bring forward such a claim one shareholder alone or together with other shareholders needs to hold at least 1% of the company’s share capital or a participation of €100,000 in the share capital. Additionally, the claimant(s) must comply with special claim approval procedures conducted before a competent court which will allow the pertinent request only if there are circumstances justifying the assumption that damage has been afflicted on the company by improper conduct or a gross breach of the law or the articles of association.
Dividend Rights
Under German law, we may pay dividends only from the distributable profit (Bilanzgewinn) reflected in our unconsolidated financial statements (as opposed to the consolidated financial statements for us and our subsidiaries) prepared in accordance with the principles set forth in the German Commercial Code (Handelsgesetzbuch) and adopted by our Management Board (Vorstand) and the Supervisory Board (Aufsichtsrat), or, as the case may be, by our shareholders in a general shareholders’ meeting. In addition, under German law we may not pay dividends before annual profits exceed the losses carried forward.
The distribution of dividends on shares for a given fiscal year is then generally determined by a process in which the Management Board and Supervisory Board submit a proposal to the company’s annual general shareholders’ meeting held in the subsequent fiscal year and such annual general shareholders’ meeting adopts a resolution.
Shareholders generally participate in profit distributions in proportion to the number of shares they hold. Dividends on shares resolved by the general shareholders’ meeting are paid annually, shortly after the general shareholders’ meeting, in compliance with the rules of the respective clearing system. Dividend payment claims are subject to a three-year statute of limitation in the company’s favor.
Authorization to Purchase and Sell Our Own Shares
We may not purchase our own shares unless authorized by the shareholders’ meeting or in other very limited circumstances as set out in the German Stock Corporation Act.
Squeeze-Out of Minority Shareholders
Under German law, the shareholders’ meeting of a stock corporation may resolve, upon request of a shareholder that holds at least 95% of the share capital, that the shares held by any remaining minority shareholders be transferred to the majority shareholder against payment of “adequate cash compensation” (Ausschluss von Minderheitsaktionären). This amount must take into account the full value of the company at the time of the resolution, which is generally determined using the future earnings value method (Ertragswertmethode).
A squeeze-out following a (mandatory) takeover offer (übernahmerechtlicher Squeeze-Out) also requires a majority shareholder to hold at least 95% of the share capital. A squeeze-out in the context of a merger (umwandlungsrechtlicher Squeeze-Out), however, only requires a majority shareholder to hold at least 90% of the share capital.
Liquidation Rights
Apart from liquidation, e.g., as a result of insolvency proceedings, we may be liquidated with a vote of the holders of at least three-quarters of the share capital represented at the shareholders’ meeting at which such a vote is taken. If we are liquidated, any assets remaining after all of our liabilities have been paid off would be distributed among our shareholders in proportion to their holdings in accordance with German statutory law. The German Stock Corporation Act provides certain protections for creditors which must be observed in the event of liquidation.
Differences in Corporate Law
The applicable provisions of the SE Regulation in conjunction with the German Stock Corporation Act as applied to a European stock corporation that has its legal seat in Germany differ from laws applicable to U.S. corporations and their shareholders. Set forth below is a summary of certain differences between the provisions of the SE Regulation in conjunction with the German Stock Corporation Act applicable to us and the General Corporation Law of the State of Delaware relating to shareholders’ rights and protections. This summary is not intended to be a complete discussion of the respective rights and it is qualified in its entirety by reference to Delaware law and European and German law.
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European Union / Federal Republic of Germany |
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Delaware |
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Board System |
A European stock corporation may choose to have a two-tier board structure composed of the Management Board (Vorstand) and the Supervisory Board (Aufsichtsrat) or a one-tiered board structure composed of the Administrative Board (Verwaltungsrat) and the Managing Directors (geschäftsführende Direktoren). We have chosen the two-tiered board structure. The Management Board is responsible for running the company’s affairs and representing the company in dealings with third parties. The Supervisory Board of a European stock corporation under German law has a control and supervisory function. The Supervisory Board does not actively manage the company, but certain Management Board actions require the approval of the Supervisory Board. |
Under Delaware law, a corporation has a unitary board structure, and it is the responsibility of the board of directors to appoint and oversee the management of the corporation on behalf of and in the best interests of the stockholders of the corporation. Management is responsible for running the corporation and overseeing its day-to-day operations. |
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Appointment and Number of Directors |
Under applicable European and German law, a European stock |
Under Delaware law, a corporation must have at least |
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European Union / Federal Republic of Germany |
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Delaware |
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corporation governed by German law with a share capital of at least €3 million generally must have at least two members on its Management Board and the number of members shall be determined by or in the manner provided in the company’s articles of association. The Supervisory Board must consist of at least three but— depending on the share capital— no more than 21 Supervisory Board members, whereby the number of Supervisory Board members must be divisible by three if this is necessary for the fulfilment of co-determination requirements. The articles of association of the company must specify if the Supervisory Board has more than three members. Supervisory Board members are either appointed by the shareholders’ meeting or delegated by one or more individual shareholders if so provided for in the company’s articles of association. If the Supervisory Board consists of fewer members than is required to meet the quorum for resolutions (either statutory or pursuant to the company’s articles of association), a competent court may appoint additional members as needed to meet the quorum. The provisions of German law in relation to employees’ co-determination do not apply to the Company. |
one director and the number of directors shall be fixed by or in the manner provided in the bylaws. |
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Removal of Directors |
Members of the Management Board of a European stock corporation are appointed by the Supervisory Board for a maximum period of six years with an opportunity to be reelected. The articles of association may provide for a shorter term, which in our case is up to five years. The members of the Management |
Under Delaware law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except (i) unless the certificate of incorporation provides otherwise, in the case of a corporation whose board of |
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European Union / Federal Republic of Germany |
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Delaware |
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Board may be reelected, even repeatedly. The Supervisory Board may remove a member of the Management Board prior to the expiration of his or her term only for cause, such as gross breach of duties (grobe Pflichtverletzung), the inability to manage the business properly (Unfähigkeit zur ordnungsgemäßen Pflichtausübung) or a vote of no-confidence during the shareholders’ meeting (Vertrauensentzug). The shareholders themselves are not entitled to appoint or dismiss the members of the Management Board. Under European law, a member of the Supervisory Board of a company may be elected for a term of up to six years. The articles of association may provide for a shorter term. Our Supervisory Board members are, if the general meeting does not resolve on a shorter term, elected for a period up to the end of the general meeting deciding on the discharge for the fourth financial year after the election. Reelection, including repeated reelection, is permissible. Members of the Supervisory Board may be removed with or without cause by way of a general meeting resolution, with the applicable majority requirement depending on the relevant company’s articles of association. |
directors is classified, stockholders may effect such removal only for cause; or (ii) in the case of a corporation having cumulative voting, if less than the entire board of directors is to be removed, no director may be removed without cause if the votes cast against his removal would be sufficient to elect him if then cumulatively voted at an election of the entire board of directors, or, if there are classes of directors, at an election of the class of directors of which he is a part. |
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Vacancies on the Board of Directors |
Under the law, vacant positions on the Management Board are filled by the Supervisory Board in accordance with the general rules of appointment, which provide that vacancies are filled by the simple majority of votes of Supervisory Board members present or represented by proxy at the vote (with, under certain circumstances, the chairperson |
Under Delaware law, vacancies and newly created directorships may be filled by a majority of the directors then in office (even though less than a quorum) or by a sole remaining director unless (i) otherwise provided in the certificate of incorporation or by-laws of the corporation or (ii) the certificate of incorporation directs that a |
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European Union / Federal Republic of Germany |
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Delaware |
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having a casting vote), unless otherwise provided by the company’s articles of association. In case of emergencies, a vacant position on the Management Board may be filled by an individual appointed by the court. Vacant positions on the Supervisory Board are filled in accordance with the general rules of appointment. |
particular class of stock is to elect such director, in which case a majority of the other directors elected by such class, or a sole remaining director elected by such class, will fill such vacancy. |
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Annual General Meeting |
A European stock corporation which is governed by German law must hold an annual shareholders’ meeting within six months of the end of its fiscal year. The annual shareholders’ meeting must be held at a location determined by the articles of association. If the articles of association do not provide for a specific location, the shareholders’ meeting shall be held at the company’s seat or, if applicable, at the venue (in Germany) where its shares are listed. |
Under Delaware law, the annual meeting of stockholders shall be held at such place, on such date and at such time as may be designated from time to time by the board of directors or as provided in the certificate of incorporation or by the bylaws. |
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General Meeting |
Under the law, extraordinary shareholders’ meetings, in addition to the annual shareholders’ meetings, may be called by either the Management Board, or by the Supervisory Board. Shareholders holding at least 5% of the company’s share capital are entitled to request that an extraordinary shareholders’ meeting be convened. In the event that the meeting is not then so convened, a competent court may order that the meeting be convened or authorize the shareholders or their representative to convene the meeting themselves. |
Under Delaware law, special meetings of the stockholders may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws. |
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Notice of General Meetings |
Under applicable European and German law, unless a longer period is otherwise provided for in the articles of association or applies because of registration requirements stipulated in the |
Under Delaware law, unless otherwise provided in the certificate of incorporation or bylaws, written notice of any meeting of the stockholders must be given to each |
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European Union / Federal Republic of Germany |
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Delaware |
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articles of association, the shareholders must be given at least 30 days’ advance notice of the shareholders’ meeting. Such notices must at least specify the name of the company, the statutory seat of the company, and the location, date and time of the shareholders’ meeting. In addition, the invitation must contain the agenda items as well as the Management Board’s and the Supervisory Board’s voting proposal for each agenda item and, depending on the circumstances, certain further information. If all shareholders entitled to attend the shareholders’ meeting are present or represented and do not object to the meeting being held, the formalities of calling and holding of a shareholders’ meeting do not apply. |
stockholder entitled to vote at the meeting not less than ten nor more than 60 days before the date of the meeting and shall specify the place, date, hour, and purpose or purposes of the meeting. |
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Proxy |
A shareholder may designate another person to attend, speak and vote at a shareholders’ meeting of the company on such shareholder’s behalf by proxy. With respect to Management Board meetings, a Management Board member may transmit its (written or verbal) vote via another Management Board member. With respect to Supervisory Board meetings, a Supervisory Board member may participate in voting by issuing a written vote to another Supervisory Board member or any third party entitled to attend the Supervisory Board meeting. |
Under Delaware law, at any meeting of stockholders, a stockholder may designate another person to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A director of a Delaware corporation may not issue a proxy representing the director’s vote (written or verbal) via another Management Board member. |
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Preemptive Rights |
Under the law applicable to European stock corporations governed by German law, existing shareholders have a statutory subscription right for any |
Under Delaware law, stockholders have no preemptive rights to subscribe to additional issues of stock or to any security convertible into |
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European Union / Federal Republic of Germany |
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Delaware |
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additional issue of shares or any security convertible into shares pro rata to the nominal value of their respective holdings in the company, unless (i) shareholders representing three-quarters of the registered share capital present at the shareholders’ meeting have resolved upon the whole or partial exclusion of the subscription right and (ii) there exists good and objective cause for such exclusion. No separate resolution on the exclusion of subscription rights is required if all shareholders waive their statutory subscription rights. |
such stock unless, and except to the extent that, such rights are expressly provided for in the certificate of incorporation. |
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Authority to Allot |
Under applicable European and German law, the Management Board may not allot shares, grant rights to subscribe for or to convert any security into shares unless a shareholder resolution to that effect has been passed at the company’s shareholders’ meeting granting the Management Board with such authority—subject to the approval of the Supervisory Board—in each case in accordance with the provisions of the German Stock Corporation Act. |
Under Delaware law, if the corporation’s certificate of incorporation so provides, the board of directors has the power to authorize the issuance of stock. It may authorize capital stock to be issued for consideration consisting of cash, any tangible or intangible property or any benefit to the corporation or any combination thereof. It may determine the amount of such consideration by approving a formula. In the absence of actual fraud in the transaction, the judgment of the directors as to the value of such consideration is conclusive. |
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Liability of Directors and Officers |
Under German law, any provision, whether contained in the company’s articles of association or any contract or otherwise, that purports to exempt a Management or Supervisory Board member from any liability that would otherwise attach to such board member in connection with any negligence, default, breach of duty or breach of trust in relation to the company is void. Under German law, members of both the Management Board and members of the Supervisory Board are liable to the company, |
Under Delaware law, a corporation’s certificate of incorporation may include a provision eliminating or limiting the personal liability of a director to the corporation and its stockholders for damages arising from a breach of fiduciary duty as a director. However, no provision can limit the liability of a director for: ●
any breach of the director’s duty of loyalty to the corporation or its stockholders;
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European Union / Federal Republic of Germany |
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Delaware |
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and in certain cases, to third parties or shareholders, for any damage caused to them due to a breach of such member’s duty of care. Apart from insolvency or special circumstances, only the company has the right to claim damages from members of either board. The company may waive claims for damages against a negligent Management or Supervisory Board member only after the expiry of three years and only if the shareholders approve the waiver or settlement at a shareholders’ meeting with a simple majority of the votes cast, provided that no shareholders who in the aggregate hold one-tenth or more of our share capital oppose the waiver or settlement and have their opposition formally recorded in the meeting’s minutes maintained by a German civil law notary. |
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acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law.
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intentional or negligent payment of unlawful dividends or stock purchases or redemptions; or
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any transaction from which the director derives an improper personal benefit.
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Voting Rights |
Under the relevant European and German law, each share, except for statutory non-voting preferred shares (nicht stimmberechtigte Vorzugsaktien), entitles its holder to vote at the shareholders’ meeting with, in the case of no-par value shares, each share conferring one vote. While German law does not provide for a minimum attendance quorum for shareholders’ meetings, the company’s articles of association may so provide. In general, resolutions adopted at a shareholders’ meeting may be. passed by a simple majority of votes cast, unless a higher majority is required by law or under the company’s articles of association. |
Delaware law provides that, unless otherwise provided in the certificate of incorporation, each stockholder is entitled to one vote for each share of capital stock held by such stockholder. |
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Shareholder Vote on Certain Transactions |
Under applicable European and German law, certain shareholders’ resolutions of fundamental importance require the vote of at least three-quarters of the share |
Generally, under Delaware law, unless the certificate of incorporation provides for the vote of a larger portion of the stock, completion of a merger, |
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European Union / Federal Republic of Germany |
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Delaware |
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capital present or represented in the voting at the time of adoption of the resolution. Resolutions of fundamental importance include, in particular, capital increases with exclusion of subscription rights, capital decreases, the creation of authorized or conditional share capital, the dissolution of a company, a merger into or with another company, split-offs and split-ups, the conclusion of inter- company agreements (Unternehmensverträge), in particular domination agreements (Beherrschungsverträge) and profit and loss transfer agreements (Ergebnisabführungsverträge). |
consolidation, sale, lease or exchange of all or substantially all of a corporation’s assets or dissolution requires: ●
the approval of the board of directors; and
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approval by the vote of the holders of a majority of the outstanding stock or, if the certificate of incorporation provides for more or less than one vote per share, a majority of the votes of the outstanding stock of a corporation entitled to vote on the matter.
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Standard of Conduct for Directors |
Under applicable European and German law, both Management and Supervisory Board members must conduct their affairs with “the care and diligence of a prudent businessman” and act in the best interest of the company. The scope of the fiduciary duties of Management and Supervisory Board members is generally determined by European and German legislation and by the courts. Statutory and fiduciary duties of members of the Management Board to the company include, among others: ●
to act in accordance with the law, the company’s articles of association and the rules of procedure for the Management Board, if any.
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to report to the Supervisory Board on a regular basis as well as on certain important occasions.
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to exercise reasonable care, skill and diligence.
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to maintain a proper accounting system;
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Delaware law does not contain specific provisions setting forth the standard of conduct of a director. The scope of the fiduciary duties of directors is generally determined by the courts of the State of Delaware. In general, directors have a duty to act without self- interest, on a well-informed basis and in a manner, they reasonably believe to be in the best interest of the stockholders. Directors of a Delaware corporation owe fiduciary duties of care and loyalty to the corporation and to its stockholders. The duty of care generally requires that a director act in good faith, with the care that an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of all material information reasonably available regarding a significant transaction. The duty of loyalty requires that a director act in a manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate position for personal gain or advantage. In general, but |
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European Union / Federal Republic of Germany |
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Delaware |
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to not compete, directly or indirectly, with the company without permission by the supervisory board; and
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to secure that no further transactions are made in case of insolvency.
Statutory and fiduciary duties of members of the Supervisory Board to the company include, among others: ●
to effectively supervise the Management Board’s handling of the company’s affairs.
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to evaluate and issue a resolution on certain transactions which can only be conducted by the Management Board after approval of the Supervisory Board.
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to approve the company’s financial statements.
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to appoint the Management Board members and to represent the company in transactions between the company and members of the Management Board; and
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to approve service contracts between individual members of the Supervisory Board and the company.
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subject to certain exceptions, actions of a director are presumed to have been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation. However, this presumption may be rebutted by evidence of a breach of one of the fiduciary duties. Delaware courts have also imposed a heightened standard of conduct upon directors of a Delaware corporation who take any action designed to defeat a threatened change in control of the corporation. In addition, under Delaware law, when the board of directors of a Delaware corporation approves the sale or break-up of a corporation, the board of directors may, in certain circumstances, have a duty to obtain the highest value reasonably available to the stockholders. |
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Stockholder Actions |
Under German law, generally, the company, rather than its shareholders, is the proper claimant in an action with respect to a wrong committed against the company, or in cases where there is an irregularity in the company’s internal management or supervision. Therefore, such claims may only be raised by the company represented by its Management Board, or, in the case of a wrong committed by a |
Under Delaware law, a stockholder may initiate a derivative action to enforce a right of a corporation if the corporation fails to enforce the right itself. The complaint must: ●
state that the plaintiff was a stockholder at the time of the transaction of which the plaintiff complains or that the plaintiffs share thereafter devolved on the
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European Union / Federal Republic of Germany |
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Delaware |
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member of the Management Board, by the Supervisory Board. Additionally, pursuant to German case law, the Supervisory Board is obliged to pursue the company’s claims against the Management Board, unless the interest of the company keeps them from doing so. The Management Board, or, if a claim is against a member of the Management Board, the Supervisory Board, is obliged to pursue the company’s claims against the designated individuals if so, resolved by a simple majority of votes cast during a shareholders’ meeting. With a simple majority of votes, shareholders can request that a representative pursues the claim on behalf of the company. If the company is unable to fulfill its third-party obligations, the company’s creditors may pursue the company’s damage claims against members of the Management Board for certain wrongdoings. Under certain circumstances, shareholders can bring forward damage claims of the company against its management on their own behalf. In order to bring forward such a claim one shareholder alone or together with other shareholders needs to hold at least one percent of the company’s share capital or a participation of €100,000 in the share capital. Additionally, the claimant(s) need(s) to pass through special claim approval procedures. |
plaintiff by operation of law; and ●
either (i) allege with particularity the efforts made by the plaintiff to obtain the action the plaintiff desires from the directors and the reasons for the plaintiff’s failure to obtain the action, or (ii) or state the reasons for not making the effort.
Additionally, the plaintiff must remain a stockholder through the duration of the derivative suit. The action will not be dismissed or compromised without the approval of the Delaware Court of Chancery. |
American Depositary Shares
JPMorgan Chase Bank, N.A., as depositary, will register and deliver the American Depositary Shares, or the ADSs. Each ADS represents one-half of one share (or a right to receive one share) deposited with as custodian for the depositary in Germany. Each ADS represents any other securities, cash or other property which may be held by the depositary. The deposited shares together with any other securities, cash or other property held by the depositary are referred to as the deposited securities. The depositary’s office at which the ADSs will be administered, and its principal executive office are located at 383 Madison Avenue, Floor 11, New York, New York 10179.
You may hold ADSs either (i) directly (a) by having an American Depositary Receipt, or an ADR, which is a certificate evidencing a specific number of ADSs registered in your name, or (b) by having uncertificated ADSs registered in your name, or (ii) indirectly by holding a security entitlement in ADSs through your broker or other financial institution that is a direct or indirect participant in The Depository Trust Company (“DTC”). If you hold ADSs directly, you are a registered ADS holder, or an ADS holder.
This description assumes you are an ADS holder. If you hold the ADSs indirectly, you must rely on the procedures of your broker or other financial institution to assert the rights of ADS holders described in this section. You should consult with your broker or financial institution to find out what those procedures are.
Registered holders of uncertificated ADSs will receive statements from the depositary confirming their holdings.
As an ADS holder, we will not treat you as one of our shareholders and you will not have shareholder rights. European and German law governs shareholder rights. The depositary will be the holder of the shares underlying your ADSs. As a registered holder of ADSs, you will have ADS holder rights. A deposit agreement among us, the depositary, ADS holders and all other persons indirectly or beneficially holding ADSs sets out ADS holder rights as well as the rights and obligations of the depositary. New York law governs the deposit agreement and the ADSs.
The following is a summary of the material provisions of the deposit agreement. For more complete information, you should read the entire deposit agreement and the form of ADS. Those documents are filed as exhibits to the Annual Report which this forms a part.
Dividends and Other Distributions
How will ADS holders receive dividends and other distributions on the shares?
The depositary has agreed to pay or distribute to ADS holders the cash dividends or other distributions it or the custodian receives on shares or other deposited securities, upon payment or deduction of its fees and expenses. You will receive these distributions in proportion to the number of shares your ADSs represent.
Cash. The depositary will convert any cash dividend or other cash distribution we pay on the shares into U.S. dollars, if it can do so on a reasonable basis and can transfer the U.S. dollars to the United States. If that is not possible or if any government approval is needed and cannot be obtained, the deposit agreement allows the depositary to distribute the foreign currency only to those ADS holders to whom it is possible to do so. It will hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the foreign currency and it will not be liable for any interest.
Before making a distribution, any withholding taxes, or other governmental charges that must be paid will be deducted. The depositary will distribute only whole U.S. dollars and cents and will round fractional cents to the nearest whole cent. If the exchange rates fluctuate during a time when the depositary cannot convert the foreign currency, you may lose some of the value of the distribution.
Shares. The depositary may distribute additional ADSs representing any shares we distribute as a dividend or free distribution. The depositary will only distribute whole ADSs. It will sell shares which would require it to deliver a fraction of an ADS (or ADSs representing those shares) and distribute the net proceeds in the same way as it does with cash. If the depositary does not distribute additional ADSs, the outstanding ADSs will also represent the new shares. The depositary may sell a portion of the distributed shares (or ADSs representing those shares) sufficient to pay its fees and expenses in connection with that distribution.
Rights to purchase additional shares. If we offer holders of our securities any rights to subscribe for additional shares or any other rights, the depositary may (i) exercise those rights on behalf of ADS holders, (ii) distribute those rights to ADS holders or (iii) sell those rights and distribute the net proceeds to ADS holders, in each case after deduction or upon payment of its fees and expenses. To the extent the depositary does not do any of those things, it will allow the rights to lapse. In that case, you will receive no value for them. The depositary will exercise or distribute rights only if we ask it to and provide satisfactory assurances to the depositary that it is legal to do so. If the depositary exercises rights, it will purchase the securities to which the rights relate and distribute those securities or, in the case of shares, new ADSs representing the new shares, to subscribing ADS holders, but only if ADS holders have paid the exercise price to the depositary. U.S. securities laws may restrict the ability of the depositary to distribute rights or ADSs or other securities issued on exercise of rights to all or certain ADS holders, and the securities distributed may be subject to restrictions on transfer.
Other Distributions. The depositary will send to ADS holders anything else we distribute on deposited securities by any means it thinks is equitable and practicable. If it cannot make the distribution in that way, the depositary has a choice. It may decide to sell what we distributed and distribute the net proceeds, in the same way as it does with cash. Or it may decide to hold what we distributed, in which case ADSs will also represent the newly distributed property. However, the depositary is not required to distribute any securities (other than ADSs) to ADS holders unless it receives satisfactory evidence from us that it is legal to make that distribution. The depositary may sell a portion of the distributed securities or property sufficient to pay its fees and expenses in connection with that distribution. U.S. securities laws may restrict the ability of the depositary to distribute securities to all or certain ADS holders, and the securities distributed may be subject to restrictions on transfer.
The depositary is not responsible if it decides that it is unlawful or impractical to make a distribution available to any ADS holders. We have no obligation to register ADSs, shares, rights or other securities under the Securities Act. We also have no obligation to take any other action to permit the distribution of ADSs, shares, rights or anything else to ADS holders. This means that you may not receive the distributions we make on our shares or any value for them if it is illegal or impractical for us to make them available to you.
Deposit, Withdrawal and Cancellation
How are ADSs issued?
The depositary will deliver ADSs if you or your broker deposits shares or evidence of rights to receive shares with the custodian. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will register the appropriate number of ADSs in the names you request and will deliver the ADSs to or upon the order of the person or persons that made the deposit.
How can ADS holders withdraw the deposited securities?
You may surrender your ADSs to the depositary for the purpose of withdrawal. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will deliver the shares and any other deposited securities underlying the ADSs to the ADS holder or a person the ADS holder designates at the office of the custodian. Or, at your request, risk and expense, the depositary will deliver the deposited securities at its office, if feasible. However, the depositary is not required to accept surrender of ADSs to the extent it would require delivery of a fraction of a deposited share or other security. The depositary may charge you a fee and its expenses for instructing the custodian regarding delivery of deposited securities.
How do ADS holders interchange between certificated ADSs and uncertificated ADSs?
You may surrender your ADR to the depositary for the purpose of exchanging your ADR for uncertificated ADSs. The depositary will cancel that ADR and will send to the ADS holder a statement confirming that the ADS holder is the registered holder of uncertificated ADSs. Upon receipt by the depositary of a proper instruction from a registered holder of uncertificated ADSs requesting the exchange of uncertificated ADSs for certificated ADSs, the depositary will execute and deliver to the ADS holder an ADR evidencing those ADSs.
Voting Rights
How do ADS holders vote?
ADS holders may instruct the depositary how to vote the number of deposited shares their ADSs represent. If we request the depositary to solicit your voting instructions (and we are not required to do so), the depositary will notify you of a shareholders’ meeting and send or make voting materials available to you. Those materials will describe the matters to be voted on and explain how ADS holders may instruct the depositary how to vote. For instructions to be valid, they must reach the depositary by a date set by the depositary. The depositary will try, as far as practical, subject to the laws of the State of New York and the provisions of our articles of association or similar documents, to vote or to have its agents vote the shares or other deposited securities as instructed by ADS holders. If we do not request the depositary to solicit your voting instructions, you can still send voting instructions, and, in that case, the depositary may try to vote as you instruct, but it is not required to do so.
Except by instructing the depositary as described above, you will not be able to exercise voting rights unless you surrender your ADSs and withdraw the shares. However, you may not know about the meeting enough in advance to withdraw the shares. In any event, the depositary will not exercise any discretion in voting deposited securities and it will only vote or attempt to vote as instructed or as described in the following sentence. If (i) we asked the depositary to solicit your instructions at least 30 days before the meeting date, (ii) the depositary does not receive voting instructions from you by the specified date and (iii) we confirm to the depositary that:
| ● | we wish the depositary to vote uninstructed shares. |
| ● | we reasonably do not know of any substantial shareholder opposition to a particular question; and |
| ● | the particular question is not materially averse to the interests of shareholders, the depositary will consider you to have authorized and directed it to vote the number of deposited securities represented by your ADSs in favor of any resolution that we proposed in the invitation to the shareholders’ meeting. |
We cannot assure you that you will receive the voting materials in time to ensure that you can instruct the depositary to vote your shares. In addition, the depositary and its agents are not responsible for failing to carry out voting instructions or for the manner of carrying out voting instructions. This means that you may not be able to exercise voting rights and there may be nothing you can do if your shares are not voted as you requested.
In order to give you a reasonable opportunity to instruct the depositary as to the exercise of voting rights relating to deposited securities, if we request the depositary to act, we agree to give the depositary notice of any such meeting and details concerning the matters to be voted upon at least 30 days in advance of the meeting date.
Fees and Expenses
Persons depositing or withdrawing shares or ADS holders must pay: |
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For: |
$5.00 (or less) per 100 ADSs (or portion of 100 ADSs) |
Issuance of ADSs, including issuances resulting from a distribution of shares or rights or other property Cancellation of ADSs for the purpose of withdrawal, including if the deposit agreement terminates |
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$0.05 (or less) per ADS |
Any cash distribution to ADS holders |
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A fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited for issuance of ADSs |
Distribution of securities distributed to holders of deposited securities (including rights) that are distributed by the depositary to ADS holders |
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$0.05 (or less) per ADS per calendar year Registration or transfer fees |
Depositary services Transfer and registration of shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares |
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Expenses of the depositary |
Cable and facsimile transmissions (when expressly provided in the deposit agreement) Converting foreign currency to U.S. dollars |
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Taxes and other governmental charges the depositary or the custodian have to pay on any ADSs or shares underlying ADSs, such as stock transfer taxes, stamp duty or withholding taxes |
As necessary |
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Any charges incurred by the depositary or its agents for servicing the deposited securities |
As necessary |
The depositary collects its fees for delivery and surrender of ADSs directly from investors depositing shares or surrendering ADSs for the purpose of withdrawal or from intermediaries acting for them. The depositary collects fees for making distributions to investors by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services by deduction from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants acting for them. The depositary may collect any of its fees by deduction from any cash distribution payable (or by selling a portion of securities or other property distributable) to ADS holders that are obligated to pay those fees. The depositary may generally refuse to provide fee-attracting services until its fees for those services are paid.
From time to time, the depositary may make payments to us to reimburse us for costs and expenses generally arising out of establishment and maintenance of the ADS program, waive fees and expenses for services provided to us by the depositary or share revenue from the fees collected from ADS holders. In performing its duties under the deposit agreement, the depositary may use brokers, dealers, foreign currency dealers or other service providers that are owned by or affiliated with the depositary and that may earn or share fees, spreads or commissions.
The depositary may convert currency itself or through any of its affiliates and, in those cases, acts as principal for its own account and not as agent, advisor, broker or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction spreads, that it will retain for its own account. The revenue is based on, among other things, the difference between the exchange rate assigned to the currency conversion made under the deposit agreement and the rate that the depositary or its affiliate receives when buying or selling foreign currency for its own account. The depositary makes no representation that the exchange rate used or obtained in any currency conversion under the deposit agreement will be the most favorable rate that could be obtained at the time or that the method by which that rate will be determined will be the most favorable to ADS holders, subject to the depositary’s obligations under the deposit agreement. The methodology used to determine exchange rates used in currency conversions is available upon request.
Payment of Taxes
If any taxes or other governmental charges (including any penalties and/or interest) become payable by or on behalf of the custodian or the depositary with respect to any ADR, any deposited securities represented by the ADSs or any distribution with respect thereto, such tax or other governmental charges shall be paid by the holder thereof to the depositary. By holding or having held an ADS the holder and all prior holders thereof, jointly and severally, agree to indemnify, defend and hold harmless each of the depositary and its agents in respect of such taxes or other governmental charges. If an ADS holder owes any tax or other governmental charge, the depositary may (i) deduct the amount thereof from any cash distributions, or (ii) sell deposited securities by public or private sale (after attempting by reasonable means to notify the ADS holder thereof prior to such sale) and deduct the amount owning from the net proceeds of such sale. In either case, the ADS holder remains liable for any shortfall. If any tax or governmental charge is unpaid, the depositary may also refuse to affect any registration, registration of transfer, split-up or combination of deposited securities or withdrawal of deposited securities until such payment is made. If any tax or governmental charge is required to be withheld on any cash distribution, the depositary may deduct the amount required to be withheld from any cash distribution or, in the case of a noncash distribution, sell the distributed property or securities (by public or private sale) in such amounts and in such manner as the depositary deems necessary and practicable to pay such taxes or charges and distribute any remaining net proceeds or the balance of any such property after deduction of such taxes or charges to the ADS holders entitled thereto. You will remain liable for any deficiency. If the depositary sells deposited securities, it will, if appropriate, reduce the number of ADSs to reflect the sale and pay to ADS holders any proceeds, or send to ADS holders any property, remaining after it has paid the taxes.
By holding an ADS or an interest therein, you will be agreeing to indemnify us, the depositary, its custodian and any of our or their respective members of the Management Board and Supervisory Board, officers, directors, employees, agents and affiliates against, and hold each of them harmless from, any claims by any governmental authority with respect to taxes, additions to tax, penalties or interest arising out of any refund of taxes, reduced rate of withholding at source or other tax benefit obtained in respect of the ADSs.
Tender and Exchange Offers; Redemption, Replacement or Cancellation of Deposited Securities
The depositary will not tender deposited securities in any voluntary tender or exchange offer unless instructed to do by an ADS holder surrendering ADSs and subject to any conditions or procedures the depositary may establish.
If deposited securities are redeemed for cash in a transaction that is mandatory for the depositary as a holder of deposited securities, the depositary will call for surrender of a corresponding number of ADSs and distribute the net redemption money to the holders of called ADSs upon surrender of those ADSs.
If there is any change in the deposited securities such as a sub-division, combination or other reclassification, or any merger, consolidation, recapitalization or reorganization affecting the issuer of deposited securities in which the depositary receives new securities in exchange for or in lieu of the old deposited securities, the depositary will hold those replacement securities as deposited securities under the deposit agreement. However, if the depositary decides it would not be lawful and practical to hold the replacement securities because those securities could not be distributed to ADS holders or for any other reason, the depositary may instead sell the replacement securities and distribute the net proceeds upon surrender of the ADSs.
If there is a replacement of the deposited securities and the depositary will continue to hold the replacement securities, the depositary may distribute new ADSs representing the new deposited securities or ask you to surrender your outstanding ADRs in exchange for new ADRs identifying the new deposited securities.
If there are no deposited securities underlying ADSs, including if the deposited securities are cancelled, or if the deposited securities underlying ADSs have become apparently worthless, the depositary may call for surrender or of those ADSs or cancel those ADSs upon notice to the ADS holders.
Amendment and Termination
How may the deposit agreement be amended?
We may agree with the depositary to amend the deposit agreement and the ADRs without your consent for any reason. If an amendment adds or increases fees or charges, except for taxes and other governmental charges or expenses of the depositary for registration fees, facsimile costs, delivery charges or similar items, or prejudices a substantial right of ADS holders, it will not become effective for outstanding ADSs until 30 days after the depositary notifies ADS holders of the amendment. At the time an amendment becomes effective, you are considered, by continuing to hold your ADSs, to agree to the amendment and to be bound by the ADRs and the deposit agreement as amended.
How may the deposit agreement be terminated?
The depositary will initiate termination of the deposit agreement if we instruct it to do so. The depositary may initiate termination of the deposit agreement if:
| ● | 60 days have passed since the depositary told us it wants to resign but a successor depositary has not been appointed and accepted its appointment. |
| ● | we delist the ADSs from an exchange in the United States on which they were listed and do not list the ADSs on another exchange in the United States or make arrangements for trading of ADSs on the U.S. over the counter market. |
| ● | we delist our ordinary shares from an exchange outside the United States on which they were listed and do not list the shares on another exchange outside the United States. |
| ● | the depositary has reason to believe the ADSs have become, or will become, ineligible for registration on Form F-6 under the Securities Act of 1933. |
| ● | we appear to be insolvent or enter insolvency proceedings. |
| ● | all or substantially all the value of the deposited securities has been distributed either in cash or in the form of securities. |
| ● | there are no deposited securities underlying the ADSs or the underlying deposited securities have become apparently worthless; or |
| ● | there has been a replacement of deposited securities. |
If the deposit agreement terminates, the depositary will notify ADS holders at least 90 days before the termination date. At any time after the termination date, the depositary may sell the deposited securities. After that, the depositary will hold the money it received on the sale, as well as any other cash it is holding under the deposit agreement, unsegregated and without liability for interest, for the pro rata benefit of the ADS holders that have not surrendered their ADSs. Normally, the depositary will sell as soon as practicable after the termination date.
After the termination date and before the depositary sells, ADS holders can still surrender their ADSs and receive delivery of deposited securities, except that the depositary may refuse to accept a surrender for the purpose of withdrawing deposited securities or reverse previously accepted surrenders of that kind that have not settled if it would interfere with the selling process. The depositary may refuse to accept a surrender for the purpose of withdrawing sale proceeds until all the deposited securities have been sold. The depositary will continue to collect distributions on deposited securities, but, after the termination date, the depositary is not required to register any transfer of ADSs or distribute any dividends or other distributions on deposited securities to the ADSs holder (until they surrender their ADSs) or give any notices or perform any other duties under the deposit agreement except as described in this paragraph.
Limitations on Obligations and Liability
Limits on our Obligations and the Obligations of the Depositary; Limits on Liability to Holders of ADSs
The deposit agreement expressly limits our obligations and the obligations of the depositary. It also limits our liability and the liability of the depositary. We and the depositary:
| ● | are only obligated to take the actions specifically set forth in the deposit agreement without negligence or bad faith, and the depositary will not be a fiduciary or have any fiduciary duty to holders of ADSs. |
| ● | are not liable if we are or it is prevented or delayed by law or by events or circumstances beyond our or its control from performing our or its obligations under the deposit agreement. |
| ● | are not liable if we or it exercises discretion permitted under the deposit agreement. |
| ● | are not liable for the inability of any holder of ADSs to benefit from any distribution on deposited securities that is not made available to holders of ADSs under the terms of the deposit agreement, or for any special, consequential, or punitive damages for any breach of the terms of the deposit agreement. |
| ● | have no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the deposit agreement on your behalf or on behalf of any other person. |
| ● | may rely upon any documents we believe, or it believes in good faith to be genuine and to have been signed or presented by the proper person. |
| ● | are not liable for the acts or omissions of any securities depository, clearing agency or settlement system; and |
| ● | the depositary has no duty to make any determination or provide any information as to our tax status, or any liability for any tax consequences that may be incurred by ADS holders as a result of owning or |
holding ADSs or be liable for the inability or failure of an ADS holder to obtain the benefit of a foreign tax credit, reduced rate of withholding or refund of amounts withheld in respect of tax or any other tax benefit.
In the deposit agreement, we and the depositary agree to indemnify each other under certain circumstances.
Requirements for Depositary Actions
Before the depositary will deliver or register a transfer of ADSs, make a distribution on ADSs, or permit withdrawal of shares, the depositary may require:
| ● | payment of stock transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties for the transfer of any shares or other deposited securities. |
| ● | satisfactory proof of the identity and genuineness of any signature or other information it deems necessary; and |
| ● | compliance with regulations it may establish, from time to time, consistent with the deposit agreement, including presentation of transfer documents. |
The depositary may refuse to deliver ADSs or register transfers of ADSs when the transfer books of the depositary or our transfer books are closed or at any time if the depositary or we think it advisable to do so.
Your Right to Receive the Shares Underlying your ADSs.
ADS holders have the right to cancel their ADSs and withdraw the underlying shares at any time except:
| ● | when temporary delays arise because (i) the depositary has closed its transfer books or we have closed our transfer books, (ii) the transfer of shares is blocked to permit voting at a shareholders’ meeting or (iii) we are paying a dividend on our shares. |
| ● | when you owe money to pay fees, taxes, and similar charges; or |
| ● | when it is necessary to prohibit withdrawals to comply with any laws or governmental regulations that apply to ADSs or to the withdrawal of shares or other deposited securities. This right of withdrawal may not be limited by any other provision of the deposit agreement. |
Direct Registration System
In the deposit agreement, all parties to the deposit agreement acknowledge that the Direct Registration System (“DRS”) and Profile Modification System, or Profile, will apply to the ADSs. DRS is a system administered by DTC that facilitates interchange between registered holding of uncertificated ADSs and holding of security entitlements in ADSs through DTC and a DTC participant. Profile is a feature of DRS that allows a DTC participant, claiming to act on behalf of a registered holder of uncertificated ADSs, to direct the depositary to register a transfer of those ADSs to DTC or its nominee and to deliver those ADSs to the DTC account of that DTC participant without receipt by the depositary of prior authorization from the ADS holder to register that transfer.
In connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties to the deposit agreement understand that the depositary will not determine whether the DTC participant that is claiming to be acting on behalf of an ADS holder in requesting registration of transfer and delivery as described in the paragraph above has the actual authority to act on behalf of the ADS holder (notwithstanding any requirements under the Uniform Commercial Code). In the deposit agreement, the parties agree that the depositary’s reliance on and compliance with instructions received by the depositary through the DRS/Profile system and in accordance with the deposit agreement will not constitute negligence or bad faith on the part of the depositary.
Shareholder Communications; Inspection of Register of Holders of ADSs
The depositary will make available for your inspection at its office all communications that it receives from us as a holder of deposited securities that we make generally available to holders of deposited securities. The depositary will send you copies of those communications or otherwise make those communications available to you if we ask it to. You have a right to inspect the register of holders of ADSs, but not for the purpose of contacting those holders about a matter unrelated to our business or the ADSs.
Jury Trial Waiver
The deposit agreement provides that, to the extent permitted by law, ADS holders waive the right to a jury trial of any claim they may have against us or the depositary arising out of or relating to our shares, the ADSs or the deposit agreement, including any claim under the U.S. federal securities laws. If we or the depositary opposed a jury trial demand based on the waiver, the court would determine whether the waiver was enforceable in the facts and circumstances of that case in accordance with applicable case law.
You will not, by agreeing to the terms of the deposit agreement, be deemed to have waived our or the depositary’s compliance with U.S. federal securities laws and the rules and regulations promulgated thereunder.
Stock Exchange Listing
Our ordinary shares are listed on the Frankfurt Stock Exchange under the symbol “EVT.”
Our American Depositary Shares, or the ADSs, representing our ordinary shares are listed on the Nasdaq Global Select Market under the symbol “EVO.”
Exhibit 2.4
WKN: 566480
ISIN: DE0005664809
Reference number: [·]
[·] no-par stock
Evotec SE
Hamburg
Global certificate
for [·] bearer common stocks in the form of no-par stock
Stock numbers: [·] to [·]
The bearer of this global certificate is a shareholder of Evotec SE, Hamburg, in accordance with its Articles of Association and holds [·] no-par stocks.
The number of stocks issued and certificated by this global certificate is derived from the current electronic book entry documentation of Clearstream Banking AG, Frankfurt am Main.
This global certificate is solely to be held in custody by Clearstream Banking AG, Frankfurt am Main.
No global dividend coupon has been issued for this global certificate.
The stocks certificated in this global certificate are entitled to dividends from the beginning of the fiscal year for which a resolution on the appropriation of distributable profit has not yet been adopted by the General Meeting at the time the subscription right is exercised.
Hamburg, [·]
Evotec SE
represented by
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Dr Christian Wojczewski/ CEO |
Laetitia Rouxel / CFO |
Exhibit 4.9
Promissory Notes (Schuldscheindarlehen)
The five promissory note loan agreements (collectively, the “Promissory Notes”) each govern an unsecured promissory note loan among Evotec SE, as borrower (the “Borrower”), Deutsche Bank AG and Landesbank Baden-Württemberg (“LBBW,” and, together with the Borrower and Deutsche Bank AG, the “Parties”), as arrangers and LBBW as the original lender.
The following table provides an overview of the financial terms of the Promissory Notes:
Number |
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Borrower |
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Arranger |
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Original |
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Principal |
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Interest |
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Funding |
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Maturity |
617548102 |
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Evotec SE |
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Deutsche Bank AG, LBBW |
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LBBW |
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58.5 |
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0.9% p.a. |
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24 June 2019 |
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24 June 2024 |
617548129 |
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Evotec SE |
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Deutsche Bank AG, LBBW |
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LBBW |
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38.0 |
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1.122% p.a. |
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24 June 2019 |
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24 June 2026 |
617548145 |
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Evotec SE |
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Deutsche Bank AG, LBBW |
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LBBW |
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54.0 |
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2.00% p.a. |
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24 June 2019 |
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25 June 2029 |
617548110 |
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Evotec SE |
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Deutsche Bank AG, LBBW |
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LBBW |
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50.0 |
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EURIBOR + 0.9% p.a. |
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24 June 2019 |
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24 June 2024 |
617548137 |
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Evotec SE |
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Deutsche Bank AG, LBBW |
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LBBW |
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14.5 |
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EURIBOR + 1.1% p.a. |
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24 June 2019 |
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24 June 2026 |
The Promissory Notes are each materially similar to one-another with the exception of principal amount, maturity and interest rate. The following provides a summary of the material terms:
Interest on each Promissory Note is payable on June 24 annually until the Maturity Date, except for the floating rate Promissory Notes, for which interest is payable semi-annually on June 24 and December 24 of each year, until the Maturity Date.
The principal amount under each Promissory Note becomes due and payable on the applicable Maturity Date. However, the relevant lender may, in its capacity as original lender, accelerate repayment in the event of a change of control. The Borrower is obligated to reimburse the relevant lender for any loss, damage and cost arising from an early repayment.
The Borrower may terminate the promissory loan note in its entirety, upon thirty days’ notice, at the end of each calendar half-year if the relevant lender has not agreed to an amendment of such Promissory Note requested later than three years after the Promissory Note loan was granted. In the case of such early termination, the repayment amount (calculated as the higher of (i) the outstanding principle amount or (ii) the discounted market value of the promissory note loan) and any accrued and unpaid interest. The floating rate Promissory Notes do not contain such termination rights, but are, by operation of mandatory German law, repayable at the end of each interest period (subject to at least one months’ prior notice).
The Promissory Notes contain certain restrictive covenants preventing the the Borrower and its material subsidiaries from pledging current and future assets as security for other financial liabilities unless security of an equal ranking priority is granted to the relevant lender, subject to certain exemptions such as security granted in the ordinary course of business. The Borrower guarantees that the claims under the Promissory Notes rank at least equal in priority to all other unsecured and unsubordinated liabilities of the Borrower. Further restrictions apply to the entering into of financial liabilities and the transfer of assets to third parties (in each case, subject to certain exemptions).
At the end of each financial year, the Borrower must confirm that it is in compliance with the financial covenant (leverage covenant) provided for in each Promissory Note. A breach of this covenant may lead to an increase of interest, but does not itself constitute an event of default.
The relevant lender may accelerate each Promissory Note and demand immediate repayment of the principal amount outstanding plus accrued interest for good cause, including, but not limited to (i) non-payment of due interest or principal; (ii) breach of duties under the Promissory Notes; (iii) non-payment of a financial liability exceeding EUR 15 million; (iv) illiquidity or over-indebtedness, filing for insolvency or opening of insolvency proceedings with respect to the Borrower or any German material subsidiary; (v) enforcement procedures against substantial assets of the Borrower or any material subsidiary exceeding EUR 10 million; (vi) relocation of the registered office of the Borrower; and (vii) occurrence of a material adverse change.
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Contract number (FI No): 93512 Serapis No: 2021-0233 PROJECT JUSTICE Finance Contract originally dated 29 December 2022 between the European Investment Bank and Evotec SE as amended and restated on 10 February 2023 EIB Internal Classification Corporate Use |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 2 WHEREAS: ........................................................................................................................................... 6 ARTICLE 1 ............................................................................................................................................ 7 1.1 INTERPRETATION .................................................................................................................. 7 ARTICLE 2 .......................................................................................................................................... 18 2.1 AMOUNT OF CREDIT............................................................................................................ 18 2.2 DISBURSEMENT PROCEDURE........................................................................................... 18 2.2.1 TRANCHES ............................................................................................................................... 18 2.2.2 DISBURSEMENT OFFER ............................................................................................................. 18 2.2.3 DISBURSEMENT ACCEPTANCE ................................................................................................... 18 2.3 DISBURSEMENT ACCOUNT ................................................................................................ 19 2.4 CURRENCY OF DISBURSEMENT ....................................................................................... 19 2.5 CONDITIONS OF DISBURSEMENT ..................................................................................... 19 2.5.1 INITIAL DOCUMENTARY CONDITIONS PRECEDENT ....................................................................... 19 2.5.2 ALL TRANCHES - DOCUMENTARY CONDITIONS PRECEDENT ........................................................ 19 2.5.3 ALL TRANCHES – OTHER CONDITIONS ....................................................................................... 20 2.5.4 FACILITY B – ADDITIONAL CONDITIONS PRECEDENT ................................................................... 20 2.5.5 FACILITY C – ADDITIONAL CONDITIONS PRECEDENT ................................................................... 20 2.6 CANCELLATION .................................................................................................................... 21 2.7 FEE FOR CANCELLATION OF AN ACCEPTED TRANCHE................................................ 21 2.8 CANCELLATION AFTER EXPIRY OF THE CREDIT ............................................................ 22 2.9 COMMITMENT FEE............................................................................................................... 22 2.10 NON-UTILISATION FEE ........................................................................................................ 22 2.11 SUMS DUE UNDER ARTICLE 2 ........................................................................................... 22 ARTICLE 3 .......................................................................................................................................... 22 3.1 AMOUNT OF LOAN ............................................................................................................... 22 3.2 CURRENCY OF REPAYMENT, INTEREST AND OTHER CHARGES................................. 22 ARTICLE 4 .......................................................................................................................................... 22 4.1 FIXED RATE TRANCHES...................................................................................................... 22 4.2 VARIABLE REMUNERATION................................................................................................ 23 4.3 INTEREST ON OVERDUE SUMS......................................................................................... 24 ARTICLE 5 .......................................................................................................................................... 25 5.1 NORMAL REPAYMENT......................................................................................................... 25 5.1.1 SINGLE INSTALMENT.................................................................................................................. 25 5.2 VOLUNTARY PREPAYMENT................................................................................................ 25 5.2.1 PREPAYMENT OPTION ............................................................................................................... 25 5.2.2 PREPAYMENT FEE .................................................................................................................... 25 5.2.3 PREPAYMENT MECHANICS ......................................................................................................... 25 5.3 COMPULSORY PREPAYMENT AND CANCELLATION....................................................... 25 5.3.1 INVESTMENT COST REDUCTION EVENT ...................................................................................... 25 5.3.2 CHANGE EVENTS...................................................................................................................... 26 5.3.3 ILLEGALITY EVENT .................................................................................................................... 26 5.3.4 NON-EIB FINANCING................................................................................................................. 26 5.3.5 MANDATORY PREPAYMENT IN CASE OF RESOLUTION ON DIVIDENDS ............................................. 27 5.3.6 PREPAYMENT FEE .................................................................................................................... 27 5.3.7 PREPAYMENT MECHANICS ......................................................................................................... 27 |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 3 5.4 GENERAL............................................................................................................................... 27 ARTICLE 6 .......................................................................................................................................... 28 6.1 DAY COUNT CONVENTION ................................................................................................. 28 6.2 TIME AND PLACE OF PAYMENT ......................................................................................... 28 6.3 NO SET-OFF BY THE BORROWER ..................................................................................... 28 6.4 DISRUPTION TO PAYMENT SYSTEMS............................................................................... 28 6.5 APPLICATION OF SUMS RECEIVED................................................................................... 29 6.5.1 GENERAL ................................................................................................................................. 29 6.5.2 PARTIAL PAYMENTS................................................................................................................... 29 6.5.3 ALLOCATION OF SUMS RELATED TO TRANCHES........................................................................... 29 ARTICLE 7 .......................................................................................................................................... 29 ARTICLE 8 .......................................................................................................................................... 29 8.1 TAXES, DUTIES AND FEES ................................................................................................. 29 8.2 OTHER CHARGES ................................................................................................................ 30 8.3 INCREASED COSTS, INDEMNITY AND SET-OFF .............................................................. 30 ARTICLE 9 .......................................................................................................................................... 30 9.1 RIGHT TO DEMAND REPAYMENT ...................................................................................... 30 9.2 OTHER RIGHTS AT LAW ...................................................................................................... 32 9.3 PREPAYMENT FEE............................................................................................................... 32 9.4 NON-WAIVER ........................................................................................................................ 32 ARTICLE 10 ........................................................................................................................................ 32 10.1 GOVERNING LAW................................................................................................................. 32 10.2 JURISDICTION ...................................................................................................................... 32 10.3 PLACE OF PERFORMANCE................................................................................................. 32 10.4 EVIDENCE OF SUMS DUE ................................................................................................... 32 10.5 ENTIRE AGREEMENT........................................................................................................... 32 10.6 INVALIDITY............................................................................................................................ 33 10.7 AMENDMENTS...................................................................................................................... 33 10.8 COUNTERPARTS.................................................................................................................. 33 ARTICLE 11 ........................................................................................................................................ 33 11.1 NOTICES................................................................................................................................ 33 11.1.1 FORM OF NOTICE ...................................................................................................................... 33 11.1.2 ADDRESSES ............................................................................................................................. 34 11.1.3 CHANGE IN COMMUNICATION DETAILS ........................................................................................ 34 11.2 ENGLISH LANGUAGE........................................................................................................... 34 SCHEDULE A ..................................................................................................................................... 36 INVESTMENT SPECIFICATION AND REPORTING.......................................................................... 36 SCHEDULE B ..................................................................................................................................... 39 DEFINITION OF EURIBOR................................................................................................................. 39 SCHEDULE C ..................................................................................................................................... 41 FORM OF DISBURSEMENT OFFER/ACCEPTANCE ....................................................................... 41 |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 4 SCHEDULE D ..................................................................................................................................... 43 FORM OF DRAWDOWN CERTIFICATE............................................................................................ 43 SCHEDULE E...................................................................................................................................... 44 FORM OF COMPLIANCE CERTIFICATE .......................................................................................... 44 SCHEDULE F...................................................................................................................................... 45 INITIAL DOCUMENTARY CONDITIONS PRECEDENT .................................................................... 45 SCHEDULE G ..................................................................................................................................... 46 REPRESENTATIONS AND WARRANTIES ....................................................................................... 46 SCHEDULE H ..................................................................................................................................... 49 GENERAL UNDERTAKINGS.............................................................................................................. 49 SCHEDULE I....................................................................................................................................... 58 INFORMATION AND VISITS .............................................................................................................. 58 SCHEDULE J...................................................................................................................................... 62 RESEARCH AND DEVELOPMENT PROJECTS ............................................................................... 62 SCHEDULE K ..................................................................................................................................... 63 EXCLUDED PROJECTS..................................................................................................................... 63 |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 5 THIS CONTRACT WAS ORIGINALLY MADE ON 29 DECEMBER 2022 AND IS HEREBY AMENDED AND RESTATED ON __ FEBRUARY 2023 BETWEEN: The European Investment Bank having its seat at 100 blvd Konrad Adenauer, Luxembourg, L-2950 Luxembourg, represented by ____________________ and __________________ (the "Bank") and Evotec SE, a company incorporated in Germany, having its registered office at Manfred Eiger Campus Essener Bogen 7, D-22419 Hamburg, Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Hamburg, Germany, under commercial register number HRB 156381, represented by Enno Spillner and Dr. Christian Dargel. (the "Borrower") The Bank and the Borrower together are referred to as the “Parties” and any of them is a “Party”. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 6 WHEREAS: (A) The Borrower has stated that it is undertaking projects relating to (i) research and development investments on its proprietary drug discovery pipeline, as well as external investments in research and development of third party entities and (ii) the extension of the existing pharmaceutical R&D plant in France, with a new unit dedicated to biologic production, as more particularly described in the technical description (the "Technical Description") set out in Schedule A (Investment Specification and Reporting) (the "Investment"). The total cost of the Investment, as estimated by the Bank, is EUR 418,000,000 (four hundred eighteen million euros). (B) The Bank, considering that the financing of the Investment falls within the scope of its functions, agreed to provide the Borrower with a credit in an amount of EUR 150,000,000 (one-hundred fifty million euro) under this Finance Contract (the "Contract") to finance the Investment; provided that the amount of the loan hereunder shall not, in any case, exceed 50% (fifty per cent.) of the cost of the Investment. (C) The Parties to this Contract, being aware of the differences between a participation credit (partiarisches Darlehen) and a silent partnership (stille Gesellschaft), agree that the Bank will not participate in any loss of the Borrower and that this Contract provides for a participation credit (partiarisches Darlehen), and on that basis, after due and careful consideration, have decided to enter into this Contract. (D) The statute of the Bank provides that the Bank shall ensure that its funds are used as rationally as possible in the interests of the European Union; and, accordingly, the terms and conditions of the Bank's loan operations must be consistent with relevant policies of the European Union. (E) The Bank considers that access to information plays an essential role in the reduction of environmental and social risks, including human rights violations, linked to the projects it finances and has therefore established its transparency policy, the purpose of which is to enhance the accountability of the Bank’s group towards its stakeholders and the citizens of the European Union in general. (F) The processing of personal data shall be carried out by the Bank in accordance with applicable European Union legislation on the protection of individuals with regard to the processing of personal data by the European Union institutions and bodies and on the free movement of such data. For the purposes of the GDPR (as defined below) and Regulation (EU) 2018/1725, the Parties acknowledge their mutual understanding that each Party will act as an independent controller, and not a processor on behalf of or joint controller with the other Party, when processing personal data in connection with this Contract. (G) The Bank supports the implementation of international and European Union standards in the field of anti-money laundering and countering the financing of terrorism and promotes tax good governance standards. It has established policies and procedures to avoid the risk of misuse of its funds for purposes which are illegal or abusive in relation to applicable laws. The Bank’s group statement on tax fraud, tax evasion, tax avoidance, aggressive tax planning, money laundering and financing of terrorism is available on the Bank’s website and offers further guidance to the Bank’s contracting counterparties. (H) Under current law, the Bank is exempt from withholding under FATCA (as defined below) pursuant to the lntergovernmental Agreement entered into between Luxembourg and the United States signed on 28 March 2014, ratified in Luxembourg on 25 July 2015 and in full force and effect from 29 July 2015, implementing the Foreign Account Tax Compliance provisions of the U.S. Hiring lncentives to Restore Employment Act of 2010. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 7 It is hereby agreed as follows: ARTICLE 1 Interpretation and definitions 1.1 Interpretation In this Contract: (a) references to Articles, Recitals, Schedules and Paragraphs are, save if explicitly stipulated otherwise, references respectively to articles of, and recitals, schedules and paragraphs of schedules to, this Contract. All Recitals and Schedules form part of this Contract; (b) references to “law" or “laws” mean (i) any applicable law and any applicable treaty, constitution, statute, legislation, decree, normative act, rule, regulation, judgement, order, writ, injunction, determination, award or other legislative or administrative measure or judicial or arbitral decision in any jurisdiction which is binding or applicable case law, and (ii) EU Law; (c) references to applicable law, applicable laws or applicable jurisdiction means (i) a law or jurisdiction applicable to the Borrower, its rights and/or obligations (in each case arising out of or in connection with the Finance Documents), its capacity and/or assets and/or the Investment; and/or, as applicable, (ii) a law or jurisdiction (including in each case the Bank’s Statute) applicable to the Bank, its rights, obligations, capacity and/or assets; (d) references to a provision of law are references to that provision as amended or re-enacted; (e) references to any Finance Documents or any other agreement or instrument are references to that other Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated; (f) words and expressions in plural shall include singular and vice versa; (g) a Default (other than an Event of Default) is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived; (h) “promptly” means without undue delay (unverzüglich) as contemplated by Section 121 of the German Civil Code (Bürgerliches Gesetzbuch); (i) nothing shall be construed so as to exclude the liability of any person for its own wilful misconduct (Vorsatz); (j) terms defined in the GDPR (as defined below), including the terms “data subject”, “personal data”, and “processing”, have the same meanings when used in Recital (F) to, or Paragraph 24 (Data Protection) of Schedule G (General Undertakings) of, this Contract; (k) references to “month” mean a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that and subject to the definition of Interest Payment Date, Article 6.1 (Day count convention) and Schedule B (Definition of EURIBOR) and unless provided otherwise in this Contract: (i) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; and (ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 8 (l) This Contract is made in the English language. For the avoidance of doubt, the English language version of this Contract shall prevail over any translation of this Contract. However, where a German translation of a word or phrase appears in the text of this Contract, the German translation of such word or phrase shall prevail. Definitions In this Contract: "4th and 5th AML Directives" means Directive 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing (the "4 th AML Directive"), as amended by Directive 2018/843 of the European Parliament and of the Council of 30 May 2018, and as further amended, supplemented or restated. "Accepted Tranche" means a Tranche in respect of a Disbursement Offer which has been duly accepted by the Borrower in accordance with its terms on or before the Disbursement Acceptance Deadline. "acting in concert" means acting together pursuant to an agreement or understanding (whether formal or informal). “Adjusted EBITDA” means (according to the Annual Financial Statement and calculated as for the balance sheet date) the operating income (or loss, as the case may be) (a) plus depreciation of property, plant and equipment (excl. Right of Use assets acc. to IFRS16); (b) plus amortisation of intangible assets; (c) plus Impairment of goodwill and intangible assets; (d) minus extraordinary income (including income from bargain purchase acc. to IFRS); (e) plus extraordinary expenses (including changes in contingent considerations acc. to IFRS, restructuring and M&A transaction costs). in each case, to the extent added, deducted or taken into account, as the case may be, for the purposes of determining operating profits of the Group before taxation. "AML Criminal Law Directive" means Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating money laundering by criminal law, as amended, supplemented or restated. "AML Directives" means the 4th and the 5th AML Directives and the AML Criminal Law Directive. “Annual Financial Statement” means the audited annual report for the period starting the 1st of January and ending the 31 December of each year. "Authorisation" means an authorisation, permit, consent, approval, resolution, licence, exemption, filing, notarisation or registration. "Authorised Signatory" means a person authorised to sign individually or jointly (as the case may be) Disbursement Acceptances on behalf of the Borrower and named in the most recent List of Authorised Signatories and Accounts received by the Bank prior to the receipt of the relevant Disbursement Acceptance. "Business Day" means a day (other than a Saturday or Sunday) on which the Bank and commercial banks are open for general business in Luxembourg and in Hamburg. "Cash and Cash Equivalent Investments" means, for any financial year, the aggregate of: (a) cash in hand or on deposit with any bank, including, without limitation, any amounts standing to the credit of any current account and any overnight and time deposits; (b) any investment in money market funds according to the most recent Investment Policy of the Borrower as per the balance sheet position in the Annual Financial Statement of the Borrower, a copy of which to be provided to the Bank upon request; |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 9 (c) the market value of any securities which have a credit rating of either BBB- or higher by Standard and Poor's Rating Services or Fitch Ratings Ltd, or Baa3 or higher by Moody's Investors Service Limited; and (d) any other position as per balance sheet positions ‘Cash & Cash Equivalents and Investments’ of the Borrower. “Cancellation Fee” means the fee to be paid to the Bank in accordance with the provisions of the Finance Fee Letter. "Change in the Beneficial Ownership" means a change in the ultimate ownership or control of an entity according to the definition of "beneficial owner" set out in article 3(6) of the 4th AML Directive. "Change-of-Control Event" means any person or group of persons acting in concert gaining Control of the Borrower or of any entity directly or ultimately Controlling the Borrower. "Change-of-Law Event" means the enactment, promulgation, execution or ratification of or any change in or amendment to any law, rule or regulation (or in the application or official interpretation of any law, rule or regulation) that occurs after the date of this Contract and which, in the reasonable opinion of the Bank, would materially impair the Borrower's ability to perform its obligations under the Finance Documents. “Code” means the U.S. Internal Revenue Code of 1986, as amended. "Compliance Certificate" means a certificate substantially in the form set out in Schedule E (Form of Compliance Certificate). “Construction Costs” means the costs and expenses (including without limitation Capex) properly incurred by a Group Company with the expansion works of the existing Manufacturing Plant for the construction of a new unit dedicated to biologic production. "Contract Number" means the Bank generated number identifying this Contract and indicated on the cover page of this Contract after the letters "FI N°". "Control" means the power to direct the management and policies of an entity, whether through the ownership of voting capital, by contract or otherwise and, for the avoidance of doubt, owning more than 50% (fifty per cent.) of the shares of an entity would constitute Control, and "Controlling" has corresponding meaning. "Credit" has the meaning given to it in Article 2.1 (Amount of Credit). "Current Assets" means the aggregate (on a consolidated basis) of all inventory, work in progress, trade and other receivables of each Group Company including prepayments in relation to operating items and sundry debtors (but excluding Cash and Cash Equivalent Investments) expected to be realised within 12 (twelve) months from the date of computation but excluding amounts in respect of: (a) receivables in relation to Tax (excluding VAT); (b) Exceptional Items and other non-operating items; (c) insurance claims; and (d) any interest owing to any Group Company. "Current Liabilities" means the aggregate (on a consolidated basis) of all liabilities (including trade creditors, accruals and provisions) of each Group Company expected to be settled within 12 (twelve) months from the date of computation but excluding amounts in respect of: (a) liabilities for Indebtedness and Finance Charges; (b) liabilities for Tax (excluding VAT); (c) Exceptional Items and other non-operating items; (d) insurance claims; and (e) liabilities in relation to dividends declared but not paid by the Borrower or by a Group Company in favour of a person which is not a Group Company. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 10 "Default" means an Event of Default or any event or circumstance specified in Article 9 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under this Contract or any combination of any of the foregoing) be an Event of Default. "Disbursement Acceptance" means a copy of the Disbursement Offer duly countersigned by the Borrower in accordance with the List of Authorised Signatories and Accounts. "Disbursement Acceptance Deadline" means the date and time of expiry of a Disbursement Offer as specified therein. "Disbursement Account" means, in respect of each Tranche, the bank account to which disbursements may be made under this Contract, as set out in the most recent List of Authorised Signatories and Accounts. "Disbursement Date" means the date on which a Tranche is disbursed in accordance with Article 2.2.2 (Disbursement Offer). "Disbursement Offer" means a letter substantially in the form set out in Schedule C (Form of Disbursement Offer/Acceptance). "Dispute" has the meaning given to it in Article 10.2 (Jurisdiction). "Disruption Event" means either or both of: (a) a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with this Contract; or (b) the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of either the Bank or the Borrower, preventing that Party from: (i) performing its payment obligations under this Contract; or (ii) communicating with other Party in accordance with the terms of this Contract, and which disruption (in either such case as per (a) or (b) above) is not caused by, and is beyond the control of, the Party whose operations are disrupted. “Eligible Period” means the period commencing on (and including) 1 January 2022 and ending on (and including) 31 December 2024. "Environment" means the following, insofar as they affect human health or social well-being: (a) fauna and flora; (b) soil, water, air, climate and the landscape; and (c) cultural heritage and the built environment, and includes, without limitation, occupational and community health and safety. "Environmental Approval" means any Authorisation required by Environmental Law. "Environmental Claim" means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law. "Environmental Law" means EU Law including: (a) principles and standards; (b) national laws and regulations; (c) applicable international treaties, in each case of which a principal objective is the preservation, protection or improvement of the Environment. "Equity Investments" means each acquisition of newly issued shares or newly issued securities a business or entity (or, in each case, any interest in any of them, including, without limitation, participation rights granting a share in the profits, revenues and/or sale or liquidation proceeds of another business or entity or a certain project of another entity) by any Group |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 11 Company (excluding, however, (i) any acquisition of a business or entity by way of an asset deal and/or (ii) any acquisition of 100% (one hundred per cent.) of shares or securities of a business or entity where such Group Company already holds shares or securities and/or (iii) any equity investments made in the Excluded Projects pursuant to the Evotec Innovate programme: (a) where such acquisition or the agreement to so acquire occurred during the Eligible Period; or (b) where such acquisition occurred prior to 1 January 2022, provided that at least EUR 375,000 (three-hundred seventy-five thousand euro) are applied by a Group Company in such acquisition during the Eligible Period. "EU Directives" means the directives of the European Union. "EU Law" means the acquis communautaire of the European Union as expressed through the Treaties of the European Union, the regulations, the EU Directives, delegated acts, implementing acts, and the case law of the Court of Justice of the European Union. "EUR" or "euro" means the lawful currency of the Member States of the European Union which adopt or have adopted it as their currency in accordance with the relevant provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union or their succeeding treaties. "EURIBOR" has the meaning given to it in Schedule B (Definition of EURIBOR). "Event of Default" means any of the circumstances, events or occurrences specified in Article 9 (Events of Default). "Exceptional Items" means any material items of an unusual or non-recurring nature which represent gains or losses including those arising on: (a) the restructuring of the activities of an entity and reversals of any provisions for the cost of restructuring; (b) disposals, revaluations, write downs or impairment of non-current assets or any reversal of any write down or impairment; (c) changes in valuation of contingent consideration liabilities (being obligations on the Borrower to make payments in respect of earnout or similar provisions); (d) disposals of assets associated with discontinued operations; and (e) any other examples of "exceptional items" (as such term has the meaning attributed to it in IFRS). “Excluded Projects” means the projects listed in Schedule K (Excluded Projects). "Exclusion Policy" means the European Investment Bank Exclusion Policy as published on the Bank’s website. “Facilities” means, together, Facility A, Facility B and Facility C, and “Facility” means each of them. “Facility A” has the meaning given to it in paragraph (a) of Article 2.2.1 (Facilities). “Facility B” has the meaning given to it in paragraph (b) of Article 2.2.1 (Facilities). “Facility C” has the meaning given to it in paragraph (c) of Article 2.2.1 (Facilities). "FATCA" means: (a) sections 1471 lo 1474 of the Code or any associated regulations or other official guidance; (b) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 12 (c) any agreement pursuant to the implementation of paragraphs (a) or (b) above with the U.S. lnternal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction. "Fee Letter" means the letter from the Bank to the Borrower dated 25 November 2022. "Final Availability Date" means the day falling 36 (thirty-six) months after the date of this Contract. "Finance Charges" means, for any financial year, the aggregate amount of the accrued interest, commission, fees, discounts, prepayment fees, premiums or charges and other finance payments in respect of any Indebtedness of any Group Company (calculated on a consolidated basis) in cash in respect of that financial year: (a) excluding any upfront fees or costs; (b) including the interest (but not the capital) element of payments in respect of Finance Leases; (c) including any commission, fees, discounts and other finance payments payable by (and deducting any such amounts payable to) any Group Company under any interest rate hedging arrangement; (d) if a Joint Venture is accounted for on a proportionate consolidation basis, after adding the Group's share of the finance costs or interest receivable of the Joint Venture; (e) taking no account of any unrealised gains or losses on any financial instruments other than any derivative instruments which are accounted for on a hedge accounting basis; and (f) excluding any capitalised interest, together with the amount of any cash dividends or distributions paid or made by the Borrower in respect of that financial year and so that no amount shall be added (or deducted) more than once. "Finance Documents" means this Contract, the Fee Letter, the Finance Fee Letter and any other document designated a “Finance Document” by the Borrower and the Bank. “Finance Fee Letter” means the fee letter under Luxembourg law from the Bank to the Borrower dated on or about the date of this Contract. "Finance Lease" means any lease or hire purchase contract which would, in accordance with IFRS in force prior to 1 January 2019, be treated as a finance or capital lease. "Fixed Rate" means 0.8% (80 basis points) per annum. "Fixed Rate Tranche" means a Tranche which is specified as a Fixed Rate Tranche in the relevant Disbursement Offer. "GAAP" means generally accepted accounting principles in Germany, including IFRS. "GDPR" means General Data Protection Regulation (EU) 2016/679. "Group" means the Group Companies, taken together as a whole. "Group Company" means the Borrower and its Subsidiaries. "IFRS" means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements. "Illegal Activities" means any of the following illegal activities or activities carried out for illegal purposes according to applicable laws in any of the following areas: (i) fraud, corruption, coercion, collusion or obstruction, (ii) money laundering, financing of terrorism or tax crimes each as defined in the AML Directives, and (iii) fraud and other illegal activity against the financial interests of the European Union as defined in the PIF Directive. "Illegality Event" has the meaning given to it in Article 5.3.3 (Illegality Event). "Indebtedness" means any: (a) obligations for borrowed money; |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 13 (b) indebtedness under any acceptance credit; (c) indebtedness under any bond, debenture, note or similar instrument; (d) instrument under any bill of exchange; (e) indebtedness in respect of any interest rate or currency swap or forward currency sale or purchase or other form of interest or currency hedging transaction (including without limit caps, collars and floors); (f) indebtedness under any Finance Lease; (g) indebtedness (actual or contingent) under any guarantee, bond security, indemnity or other agreement; (h) indebtedness (actual or contingent) under any instrument entered into for the purpose of raising finance; (i) indebtedness in respect of a liability to reimburse a purchaser of any receivables sold or discounted in the event that any amount of those receivables is not paid; (j) indebtedness arising under a securitisation; or (k) other transaction which has the commercial effect of borrowing. "Intellectual Property Rights" means any discovery, invention, formulation, formulae, knowledge, know-how, experience, method, technological development, enhancement, modification, improvement, work of authorship, computer software (including, but not limited to, source code and executable code) and documentation thereof, data or collection of data, whether patentable or not, or susceptible to copyright or any other form of legal protection, and all patent, copyright, trade secret or other intellectual property or other proprietary rights in the foregoing in any tangible or intangible form, which may now or in the future subsist. “Interest Payment Date” means each 30 June and each Maturity Date of a Tranche as specified in the Disbursement Offer, save that: (a) in case any such date is not a Relevant Business Day, it means the following Relevant Business Day, without adjustment to the interest due under Article 4.1 (Fixed Rate Tranches); but (b) where a payment is made as a single instalment in accordance with Article 5.1 (Normal repayment), and to the final interest payment only, it shall mean the preceding Relevant Business Day, with adjustment to the interest due under Article 4.1 (Fixed Rate Tranches). "Investment" has the meaning given to that term in Recital (A). "Investment Cost Reduction Event" has the meaning given to it in Article 5.3.1 (Investment Cost Reduction Event). "Joint Venture" means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity. "Lead Organisation" means the European Union, the United Nations and international standard setting organisations including the International Monetary Fund, the Financial Stability Board, the Financial Action Task Force, the Organisation for Economic Cooperation and Development and the Global Forum on Transparency and Exchange of Information for Tax Purposes and any successor organisations. "List of Authorised Signatories and Accounts" means a list, in form and substance satisfactory to the Bank, setting out: (i) the Authorised Signatories, accompanied by evidence of signing authority of the persons named on the list and specifying if they have individual or joint signing authority, (ii) the specimen signatures of such persons, and (iii) the bank account(s) to which disbursements may be made under this Contract (specified by IBAN code if the country is included in the IBAN Registry published by SWIFT, or in the appropriate account format in line with the local banking practice), BIC/SWIFT code of the bank and the name of the bank account(s) beneficiary, together with evidence that such account(s) have been opened in the name of the beneficiary; and (iv) the bank account(s) from which payments under this Contract will be made by the Borrower (specified by IBAN code if the country is |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 14 included in the IBAN Registry published by SWIFT, or in the appropriate account format in line with the local banking practice), BIC/SWIFT code of the bank and the name of the bank account(s) beneficiary, together with evidence that such account(s) have been opened in the name of the beneficiary. "Loan" means the aggregate of the amounts disbursed from time to time by the Bank under this Contract. "Loan Outstanding" means the aggregate of the amounts disbursed from time to time by the Bank under this Contract that remains outstanding. “Manufacturing Plant” means the biotechnology manufacturing plant of the Borrower, located at the “Curie” Campus in Toulouse, France. "Material Adverse Change" means, any event or change of condition, which, in the reasonable opinion of the Bank, has a material adverse effect on: (a) the ability of the Borrower to perform its obligations under the Finance Documents; (b) the business, operations, property, or financial condition or prospects of the Borrower or the Group as a whole; or (c) the legality, validity or enforceability of, or the effectiveness or ranking of, or the value of any Security granted to the Bank, or the rights or remedies of the Bank under the Finance Documents. "Material Subsidiary" means any Subsidiary of the Borrower from time to time, whose gross revenues, Total Assets or Adjusted EBITDA represents not less than 10% of (i) the consolidated gross revenues of the Group or, (ii) the consolidated Total Assets of the Group or, (iii) as the case may be, the consolidated Adjusted EBITDA of the Group, as calculated based on the then latest consolidated annual audited accounts of the Group, which shall be prepared in accordance with GAAP as applied by the Borrower on the date of this Contract and as GAAP is amended from time to time and tested annually. "Maturity Date" means, for each Tranche, the sole repayment date of that Tranche as specified in the relevant Disbursement Offer, being 7 (seven) years from the Disbursement Date of the relevant Tranche. “Net Debt” means (according to the relevant Annual Financial Statement and calculated as for the balance sheet date), any Indebtedness (a) plus other interest carrying debt, (e.g. actuarial loans, financial lease obligations (excl. operating lease obligations), bonds, promissory notes, shareholder loans, subordinated loans, silent partnerships); (b) minus Cash and Cash Equivalent Investments. "Net Debt Leverage Ratio Test" means the test which will be met in respect of a financial year if the ratio of the aggregate Indebtedness of the Group (excluding intra-Group Indebtedness) net of Cash and Cash Equivalent Investments as at the end of such financial year to Adjusted EBITDA (for the immediately preceding 12-month period) in respect of such financial year is no higher than 3.5:1. "Non-EIB Financing" includes any loan (save for the Loan and any other direct loans from the Bank to the Borrower or any other Group Company), credit bond or other form of Indebtedness or any obligation for the payment or repayment of money originally granted to the Borrower or any other Group Company for a term of more than 3 (three) years. "Partnered Projects" means research and development projects which have been entered into by a Group Company prior to the signing of this Contract, where the Borrower has agreed with a third party that such party will provide the majority of the required funding in relation to such project or investment, and no amount drawn in respect of the Loan will be applied to such projects or investments. "Payment Account" means the bank account from which payments under this Contract will be made by the Borrower, as set out in the most recent List of Authorised Signatories and Accounts. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 15 "Payment Date" means each Interest Payment Date, each Maturity Date and each Variable Remuneration Payment Date. "Permitted Guarantees" means each and every guarantee permitted in accordance with Paragraph 16 (Guarantees) of Schedule H (General Undertakings). "Permitted Hedging" has the meaning given to such term in Paragraph 17 (Hedging) of Schedule H (General Undertakings). "Permitted Indebtedness" means Indebtedness of the Borrower and/or any Group Company which is permitted in accordance with Paragraph 15 (Indebtedness) of Schedule H (General Undertakings). "Permitted Security" means Security of the Borrower and/or any Group Company which is permitted in accordance with sub-paragraph (c) of Paragraph 22 (Negative pledge) of Schedule H (General Undertakings). "Phase II" means the second clinical phase of controlled studies during Research and Development Projects, where a human clinical trial of a specific product in any country is conducted to evaluate the efficacy of the drug for a particular indication or indications in patients with the disease or condition under study and to determine the side effect profile and risks associated with the drug, as well as to further determine the drug-dosage for phase III. "PIF Directive" means Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the European Union's financial interests by means of criminal law as amended, supplemented or restated. "Prepayment Amount" means the amount of a Tranche to be prepaid by the Borrower in accordance with Articles 5.2 (Voluntary prepayment), 5.3 (Compulsory prepayment) or 9.1 (Right to demand repayment). "Prepayment Date" means the date as requested by the Borrower and agreed by the Bank or indicated by the Bank, as applicable, on which the Borrower shall effect prepayment of a Prepayment Amount. "Prepayment Event" means any of the events described in Article 5.3 (Compulsory Prepayment). "Prepayment Fee" means the fee to be paid to the Bank in accordance with the Finance Fee Letter. "Prepayment Notice" means a written notice from the Bank to the Borrower in accordance with Article 5.2.3 (Prepayment mechanics). "Prepayment Request" means a written request from the Borrower to the Bank to prepay all or part of the Loan Outstanding, in accordance with Article 5.2.1 (Prepayment option). "Qualifying Investment" means: (a) each Research and Development Project and Equity Investment where any investment is made by a Group Company during the Eligible Period; and (b) each Research and Development Project and Equity Investment specified in any list provided in respect of the final Tranche in accordance with Article 2.5.2 (All Tranches – Documentary Conditions Precedent); and (c) the Construction Costs incurred during the Eligible Period, in each case not including any Excluded Projects or Partnered Projects, and provided also that if the Bank notifies the Borrower that it requires a limitation (in whole or in part) of an amount to be disbursed under a Tranche and applied to a particular Research and Development Project and/or Equity Investment, (i) where no amount is disbursed under this Contract in respect of that Research and Development Project and/or Equity Investment, such Research and Development Project or Equity Investment shall not be a Qualifying Investment; and (ii) where a limited amount is disbursed under this Contract in respect of that Research and Development Project and/or Equity Investment, a proportionate adjustment to Variable Remuneration in respect of such Qualifying Investment shall be agreed between the Bank and the Borrower prior to disbursement. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 16 "Relevant Business Day" means a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007 (TARGET2) is open for the settlement of payments in EUR. “Relevant Party” has the meaning given to it in Schedule I (Information and Visits). “Relevant Period” means each period of 12 (twelve) months ending on or about the last day of the financial year. “Relevant Person” means, with respect to the Borrower, any member of its management bodies; or any of its employees or any other person acting on its behalf or under its control. "Repeating Representations" means each of the representations set out in Schedule G (Representations and Warranties) other than those Paragraphs thereof which are identified with the words "(Non-repeating)" at the end of the Paragraphs. "Research and Development Project" means, other than Partnered Projects or Excluded Projects, each research and development project entered into by a Group Company: (a) during the Eligible Period; or (b) where such research and development project was entered into prior to 1 January 2022, provided that an amount of at least EUR 375,000 (three hundred seventy-five thousand euro) is applied by a Group Company in such research and development project during the Eligible Period. The Parties acknowledge and agree that such Research and Development Project is and will be managed by a department unit of a Group Company which is not and will not be solely responsible for such Research and Development Project but rather manages and will manage several research and development projects under this Contract and otherwise. A list of the projects entered into in 2022 prior to the signing of this Contract which form part of this definition is set out in Schedule J (Research and Development Projects). "Revenues" means any payment or other consideration (including equity) that the Borrower or any Group Company receives in connection with a Research and Development Project: (a) other than amounts that are committed or paid on arm's length terms and at fair market value to cover the costs of research and development activities related to actual or potential products which are developed in the relevant Research and Development Project; (b) including the proceeds of any disposal of assets relating to a Research and Development Project; and (c) net of transaction costs and licence fees committed or paid by the Borrower or any Group Company on arm's length terms and directly related to the relevant Research and Development Project. “Sanctioned Person” means any individual or entity (for the avoidance of doubt, the term entity includes, but is not limited to, any government, group or terrorist organisation) who is a designated target of, or who is otherwise a subject of, Sanctions (including, without limitation, as a result of being owned or otherwise controlled, directly or indirectly, by any individual or entity, who is a designated target of, or who is otherwise a subject of, Sanctions). “Sanctions” means the economic or financial sanctions laws, regulations, trade embargoes or other restrictive measures (including, in particular, but not limited to, measures in relation to the financing of terrorism) enacted, administered, implemented and/or enforced from time to time by any of the following: (a) the United Nations, and any agency or person which is duly appointed, empowered or authorised by the United Nations to enact, administer, implement and/or enforce such measures; (b) the European Union, and any agency or person which is duly appointed, empowered or authorised by the European Union to enact, administer, implement and/or enforce such measures; and |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 17 (c) the United States Government, and any department, division, agency, or office thereof, including the Office of Foreign Asset Control (OFAC) of the United States Department of the Treasury, the United States Department of State and/or the United States Department of Commerce. "Security" means any mortgage, pledge, lien, charge, assignment, hypothecation, or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect. "Subsidiary" means an entity of which the Borrower has direct or indirect control or owns directly or indirectly more than 50% (fifty per cent.) of the voting capital or similar right of ownership and "control" for this purpose means the power to direct the management and the policies of the entity, whether through the ownership of voting capital, by contract or otherwise; provided, however, that Panion Ltd. shall be deemed not to be a Subsidiary. "Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same). "Technical Description" has the meaning given to it in Recital (A). “Total Assets” means the total consolidated assets of the Group, as shown in the Borrower’s latest consolidated financial statements, as at the end of any Relevant Period. "Tranche" means each disbursement under Facility A, Facility B, or Facility C and made or to be made under this Contract. In the event that no Disbursement Acceptance has been received, Tranche shall mean a Tranche as offered under Article 2.2.2 (Disbursement Offer). "Upfront Payments" means an initial payment received by a Group Company from a third party as part of an intended ongoing arrangement in connection with a Research and Development Project, where such payment shall cover costs of the Research and Development Project already incurred and/or forecast to be incurred in the future by the relevant Group Company. “Valuation Event” means, for the purposes of Article 4.2(b)(ii)(1) (Variable Remuneration): (a) the most recent issuance of shares subscribed by any third party(ies) for an amount of at least EUR 1,000,000 (one million euro); or (b) the most recent sale of existing shares to any third party(ies) for an amount of at least EUR 1,000,000 (one million euro); or (c) in case of event likely to have a material impact on the price per share of the investee since the events described in (a) and (b) above, a valuation prepared by an independent expert. "Variable Remuneration" has the meaning given to it in Article 4.2 (Variable Remuneration). "Variable Remuneration Payment Date" means 30 June of each year to fall after the publication of the Borrower's audited consolidated financial statements for the preceding financial year, up to (and including) the first of those dates to fall after the publication of the Borrower's audited consolidated financial statements for the year ended 31 December 2037. "Voluntary Non EIB Prepayment" means a voluntary prepayment by any Group Company (for the avoidance of doubt, prepayment shall include a repurchase, redemption or cancellation where applicable) of a part or the whole of any Non-EIB Financing where: (a) such prepayment is not made within a revolving credit facility (save for the cancellation of the revolving credit facility); or (b) such prepayment is not made out of the proceeds of a loan or other indebtedness having a term at least equal to the unexpired term of the Non-EIB Financing prepaid. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 18 ARTICLE 2 Credit and Disbursements 2.1 Amount of Credit By this Contract, the Bank establishes in favour of the Borrower, and the Borrower accepts, a credit in an aggregate amount of up to EUR 150,000,000 (one-hundred fifty million euro) for the financing of the Investment (the "Credit"). 2.2 Disbursement procedure 2.2.1 Tranches The Bank shall disburse the Credit in up to 12 (twelve) Tranches as set out below: (a) Facility A, in an amount of EUR 75,000,000 (seventy-five million euro) (“Facility A”); (b) Facility B, in an amount of EUR 37,500,000 (thirty-seven million five hundred thousand euro) (“Facility B”); and (c) Facility C, in an amount of EUR 37,500,000 (thirty-seven million five hundred thousand euro) (“Facility C”). Each Facility may be disbursed in up to 4 (four) Tranches and maximum once in each quarter year. Each Tranche shall be in a minimum amount of EUR 10,000,000 (ten million euro) or (if less) the entire undrawn balance of the relevant Facility. 2.2.2 Disbursement Offer Upon request by the Borrower and subject to Article 2.5 (Conditions of Disbursement), provided that no event mentioned in sub-paragraph (b) of Article 2.6 (Cancellation) has occurred and is continuing, the Bank shall send to the Borrower within 6 (six) Business Days after the receipt of such request a Disbursement Offer for the disbursement of a Tranche. The latest time for receipt by the Bank of such Borrower’s request is 10 (ten) Business Days before the Final Availability Date. The Disbursement Offer shall specify: (a) the Facility and the amount of the Tranche; (b) the Disbursement Date, which shall be a Relevant Business Day, falling at least 6 (six) Business Days after the date of the Disbursement Acceptance and on or before the Final Availability Date; (c) the interest rate basis of the Tranche, namely: (i) that it is a Fixed Rate Tranche; (ii) the Fixed Rate; and (iii) the Interest Payment Dates and interest periods; (d) the Maturity Date; and (e) the Disbursement Acceptance Deadline. 2.2.3 Disbursement Acceptance (a) The Borrower may accept a Disbursement Offer by delivering a Disbursement Acceptance to the Bank no later than the Disbursement Acceptance Deadline. The Disbursement Acceptance shall be signed by an Authorised Signatory with individual representation rights or 2 (two) or more Authorised Signatories with joint representation right and shall specify the Disbursement Account to which disbursement of the Tranche should be made in accordance with Article 2.3 (Disbursement Account). |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 19 (b) If a Disbursement Offer is duly accepted by the Borrower in accordance with its terms on or before the Disbursement Acceptance Deadline, and provided the conditions in Article 2.5.3 (All Tranches – Other Conditions) are met, the Bank shall make the Accepted Tranche available to the Borrower in accordance with the relevant Disbursement Offer and subject to the terms and conditions of this Contract. (c) The Borrower shall be deemed to have refused any Disbursement Offer which has not been duly accepted in accordance with its terms on or before the Disbursement Acceptance Deadline, in which case the Tranche shall not be made available to the Borrower by the Bank, and the Credit shall not be affected. (d) The Bank may rely on the information set out in the most recent List of Authorised Signatories and Accounts provided to the Bank by the Borrower. If a Disbursement Acceptance is signed by a person defined as Authorised Signatory under the most recent List of Authorised Signatories and Accounts provided to the Bank by the Borrower, the Bank may assume that such person has the power to sign and deliver in the name and on behalf of the Borrower such Disbursement Acceptance, unless the Bank has better knowledge. 2.3 Disbursement Account (a) Disbursement shall be made to the Disbursement Account specified in the relevant Disbursement Acceptance, provided that such Disbursement Account is acceptable to the Bank. (b) Only one Disbursement Account may be specified for each Tranche. 2.4 Currency of disbursement The Bank shall disburse each Tranche in EUR. 2.5 Conditions of Disbursement 2.5.1 Initial Documentary Conditions Precedent No Disbursement Offer will be provided by the Bank under this Contract unless the Bank has confirmed that it has received in form and substance satisfactory to it and no later than the date falling 10 (ten) Business Days before the Disbursement Date, all of the documents and other evidence listed in Schedule F (Initial Documentary Conditions Precedent). 2.5.2 All Tranches - Documentary Conditions Precedent Each Disbursement Offer, including the first Disbursement Offer, will be provided by the Bank under this Contract only once the Bank has confirmed that it has received, in form and substance (but excluding, for the avoidance of doubt, on the quality of the relevant Qualifying Investments) satisfactory to it no later than the date falling 10 (ten) Business Days before the Disbursement Date: (a) a certificate from the Borrower in the form of Schedule D (Form of Drawdown Certificate), signed by an Authorised Signatory and dated no earlier than the date falling 14 (fourteen) days before the Disbursement Date; (b) a report, signed by two Authorised Signatories of the Borrower, providing a detailed overview of the relevant Qualifying Investments to which the Tranche will be applied (and the relevant amounts to be so applied), and including: (i) evidence confirming the amount the Group Companies have already invested (from the Group's own resources or a third-party lender) towards each Qualifying Investment to which the respective Tranche shall be allocated, which amount (1) to the extent that proceeds of the Tranche shall be further invested in such Qualifying Investment, shall be at least equal to the amount of the relevant Tranche which is intended to be further invested in such Qualifying Investment, and/or |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 20 (2) to the extent that the proceeds of the Tranche shall not be further invested in such Qualifying Investment, shall be at least two times the amount of the relevant Tranche which is intended to be allocated to (but not further invested in) such Qualifying Investment, provided that no such amount may be included in the report if and to the extent that such amounts have been included in previous reports as evidence for investments of the Group Companies (from the Group's own resources or those of a third party lender) in relation to any previous Disbursement Offer; and/or (ii) in relation only to the final Tranche being disbursed or a Tranche to be disbursed in the 6 (six) months prior to the Final Availability Date, to the extent that amounts as specified in paragraph (i) above have not yet been invested in Qualifying Investments at such time, a list of each Qualifying Investment which the Borrower commits to invest in and apply proceeds of the Tranche towards during the period of 12 (twelve) months from the Disbursement Date of the final Tranche, and evidence confirming that the Group Companies will invest (from the Group's own resources or a third party lender) an amount equal to or greater than the amount of the Tranche to be allocated to each relevant Qualifying Investment towards such Research and Development Projects or Equity Investments during such period. 2.5.3 All Tranches – Other Conditions The Bank will only be obliged to make any Accepted Tranche available to the Borrower if on the Disbursement Date for the proposed Tranche: (a) the Repeating Representations are materially correct in all respects; and (b) no event or circumstance has occurred and is continuing which constitutes or would with the expiry of a grace period and/or the giving of notice under this Contract constitute: (i) an Event of Default; or (ii) a Prepayment Event other than pursuant to Article 5.3.1 (Investment Cost Reduction Event), or would, in each case, result from the disbursement of the proposed Tranche. 2.5.4 Facility B – Additional Conditions Precedent Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of the first Tranche under Facility B unless Facility A has been disbursed and the Bank has confirmed that it has received in form and substance satisfactory to it no later than the date falling 10 (ten) Business Days before the Disbursement Date: (a) evidence of at least EUR 150,000,000 (one-hundred fifty million euro) in aggregate having been invested by the Group Companies in Qualifying Investments during the Eligible Period, of which no less than EUR 60,000,000 (sixty million euro) have been applied in Research and Development Projects and/or Equity investments; and (b) evidence of the advancement in the construction works of the extension of the Manufacturing Plant namely the shell & core structure being finalised or mostly finalised in accordance with non-confidential pictures from the Manufacturing Plant, certified as being complete, true and accurate by 2 (two) Authorised Signatories of the Borrower provided such certification is dated no earlier than the date falling 14 (fourteen) Business Days before the Disbursement Date. 2.5.5 Facility C – Additional Conditions Precedent Without prejudice to the generality of Articles 2.5.1 (Initial Documentary Conditions Precedent) to 2.5.3 (All Tranches – Other Conditions), no Disbursement Offer will be provided by the Bank under this Contract in respect of the first Tranche under Facility C unless Facility A and Facility B have been disbursed and the Bank has confirmed that it has received in form and substance |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 21 satisfactory to it no later than the date falling 10 (ten) Business Days before the Disbursement Date: (a) evidence of at least EUR 225,000,000 (two hundred twenty-five million euro) in aggregate having been invested by the Group Companies in Qualifying Investments during the Eligible Period, of which: (i) no less than EUR 75,000,000 (seventy-five million euro) have been applied in Research and Development Projects; and (ii) no less than EUR 15,000,000 (fifteen million euro) have been applied in Equity Investments; and (b) evidence of the advancement in the construction works of the extension of the Manufacturing Plant, namely that it is ready for bringing in the equipment in accordance with non-confidential pictures from the Manufacturing Plant, certified as being complete, true and accurate by 2 (two) Authorised Signatories of the Borrower provided such certification is dated no earlier than the date falling 14 (fourteen) Business Days before the Disbursement Date. 2.6 Cancellation (a) The Borrower may send a written notice to the Bank requesting a cancellation of the undisbursed Credit or a portion thereof. In its written notice the Borrower: (i) must specify whether the Credit shall be cancelled in whole or in part and, if in part, the amount of the Credit to be cancelled; and (ii) must not request any cancellation of an Accepted Tranche which has a Disbursement Date falling within 5 (five) Business Days of the date of such written notice. Upon receipt of such written notice, the Bank shall cancel the requested portion of the Credit with immediate effect. (b) At any time upon the occurrence of the following events, the Bank may notify the Borrower in writing that the undisbursed portion of the Credit shall be cancelled in whole or in part: (i) a Prepayment Event, where (for the avoidance of doubt) if case of an Investment Cost Reduction Event pursuant to Article 5.3.1 (Investment Cost Reduction Event), such cancellation shall be by the amount necessary so that such Investment Cost Reduction Event is no longer continuing; (ii) an Event of Default; or (iii) an event or circumstance which would with the passage of time or giving of notice under this Contract constitute a Prepayment Event (other than pursuant to Article 5.3.1 (Investment Cost Reduction Event) or an Event of Default). On the date of such written notification from the Bank the relevant undisbursed portion of the Credit shall be cancelled with immediate effect. 2.7 Fee for cancellation of an Accepted Tranche (a) If pursuant to sub-paragraph (a) of Article 2.6 Cancellation) the Borrower cancels an Accepted Tranche, the Borrower shall pay to the Bank the Cancellation Fee in accordance with the provisions of the Finance Fee Letter. (b) If pursuant to sub-paragraph (b) of Article 2.6 Cancellation) the Bank cancels all or part of an Accepted Tranche, the Borrower shall pay to the Bank the Cancellation Fee in accordance with the provisions of the Finance Fee Letter. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 22 (c) If an Accepted Tranche is not disbursed on the Disbursement Date because the conditions precedent set out in Article 2.5.3 (All Tranches – Other Conditions) are not satisfied on such date, such Tranche shall be cancelled and the Borrower shall pay to the Bank the Cancellation Fee in accordance with the provisions of the Finance Fee Letter. 2.8 Cancellation after expiry of the Credit On the day following the Final Availability Date, unless otherwise specifically agreed in writing by the Bank and the Borrower, any part of the Credit in respect of which no Disbursement Acceptance has been received in accordance with Article 2.2.3 (Disbursement Acceptance) shall be automatically cancelled, without any further notice from the Bank to the Borrower and without liability arising on the part of either Party. 2.9 Commitment Fee If no disbursement is made within 4 (four) months from the date of signature of this Contract, the Borrower shall pay to the Bank a one-off contractual commitment fee in accordance with the provisions of the Finance Fee Letter, unless the Borrower has cancelled the Credit in full within 1 (one) month from the date of signature of this Contract. 2.10 Non-utilisation fee On the Final Availability Date the Borrower shall pay to the Bank a one-off contractual non-utilisation fee calculated over the undisbursed portion of the Credit and in accordance with the provisions of the Finance Fee Letter. 2.11 Sums due under Article 2 Sums due under Article 2.6 (Cancellation), Article 2.7 (Fee for cancellation of an Accepted Tranche), Article 2.9 (Commitment Fee) and Article 2.10 (Non-utilisation fee) shall be payable in EUR. Sums due under Article 2.6 (Cancellation) shall be payable within 15 (fifteen) days of the Borrower's receipt of the Bank's demand or within any longer period specified in the Bank's demand, in accordance with the provisions of the Finance Fee Letter. ARTICLE 3 The Loan 3.1 Amount of Loan The Loan shall comprise the aggregate amount of Tranches disbursed by the Bank under the Credit. 3.2 Currency of repayment, interest and other charges (a) The Borrower shall pay interest, principal, the Variable Remuneration, and other charges payable in respect of each Tranche in EUR. (b) Any other payment shall be made in the currency specified by the Bank having regard to the currency of the expenditure to be reimbursed by means of that payment. ARTICLE 4 Interest 4.1 Fixed Rate Tranches The Borrower shall pay interest on the outstanding balance of each Fixed Rate Tranche at the Fixed Rate annually in arrear on the relevant Interest Payment Dates specified in the |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 23 Disbursement Offer, and calculated on the basis of Article 6.1 (Day count convention). If the period from the Disbursement Date to the first Interest Payment Date is 15 (fifteen) days or less then the payment of interest accrued during such period shall be postponed to the following Interest Payment Date. In addition to the interest payable pursuant to Article 4.1 (Fixed Rate Tranches) above, the Bank shall be entitled to receive the Variable Remuneration pursuant to Article 4.2 (Variable Remuneration). 4.2 Variable Remuneration (a) The Bank and the Borrower agree that in consideration of the Bank making the Credit available to the Borrower in accordance with this Contract, and in addition to amounts of interest payable under Article 4.1 (Fixed Rate Tranches) above, the Borrower shall pay to the Bank a variable remuneration based on performance indicators and for specific periods, as set out in paragraph (b) below (the "Variable Remuneration") provided that the aggregate Variable Remuneration payable under this Contract shall not exceed the lower of (i) the amount of the Loan actually disbursed; and (ii) EUR 112,500,000.00 (one-hundred twelve million five hundred thousand Euro).. (b) The Variable Remuneration payable by the Borrower to the Bank shall be equal to the aggregate of: (i) in respect of all Revenues received by a Group Company, net of VAT and other transaction taxes paid by a Group Company, other than Upfront Payments, during the period from (and including) 1 January 2028 up to (and including) 31 December 2037 and in relation to any Research and Development Project which is a Qualifying Investment: (1) 1.5% (one point five per cent.) of such amounts for so long as the relevant Research and Development Project has not yet reached Phase II; and (2) 8% (eight per cent.) of such amounts once the relevant Research and Development Project has reached Phase II (i.e., "first patient in"); (ii) in respect of Equity Investments: (1) an amount equal to 5% (five per cent.) of all net proceeds (net of VAT, other transaction taxes and transaction costs (for the avoidance of doubt excluding acquisition costs and investments made) as paid by a Group Company) received by a Group Company from any distributions (such as dividend payments) on the shares or other securities in an Equity Investment prior to the disposal of such shares or other securities, in each case during the period from (and including) the date of this Contract up to (and including) 31 December 2037; and (2) an amount equal to 5.25% (five point twenty-five per cent.) of all net proceeds (net of VAT, other transaction taxes and transaction costs (including acquisition costs and total investments made) as paid by a Group Company) received by a Group Company from any divestment of Equity Investments which are Qualifying Investments, or other return on the disposal of shares or other securities in such Equity Investments, in each case during the period from (and including) the date of this Contract up to (and including) 31 December 2037; and (3) on 31 December 2037, the royalty period lump sum payment for non-exited Equity Investment eligible for EIB financing corresponding to: (A) in relation to equity stakes in listed entities, 5.25% (five point twenty-five per cent.) of the value of the equity stake of the Borrower based on the average price per share over the last 3 (three) months (with the possibility of exit fee deferral by up to 6 (six) months in case of lock up period) net of transaction costs (including acquisition costs and total investments made); |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 24 (B) for equity stake in non-listed entities, 5.25% (five point twenty-five per cent.) of the value of the equity stake of the Borrower based on the price per share as defined by the latest available Valuation Event net of transaction costs (including acquisition costs and total investments made); (c) The Borrower shall pay to the Bank each year, on the Variable Remuneration Payment Date, the Variable Remuneration in respect of the financial year to which such financial statements relate, notwithstanding any prior repayment of the Loan. For the avoidance of doubt, Variable Remuneration shall be payable beyond the final Maturity Date and will remain payable in respect of the period up to (and including) 31 December 2037 or such longer period as may be required in the event of a deferral as set out in Article 4.2(b)(ii)(1) above. (d) The Borrower shall provide to the Bank, on 31 May of each year, a detailed statement setting out how the Variable Remuneration in respect of the relevant financial year has been calculated. The Bank shall be entitled to challenge or request further information in respect of such statement, and if the Bank does so the Borrower shall provide any information reasonably requested and enter into discussions with the Bank in good faith in order to agree the Variable Remuneration in respect of such financial year. (e) Following agreement on the Variable Remuneration, the Bank shall, by notice to the Borrower, request payment of the Variable Remuneration. 4.3 Interest on overdue sums Without prejudice to Article 9 (Events of default) and by way of exception to Article 4.1 (Fixed Rate Tranches), if the Borrower fails to pay any amount payable by it under the Contract on its due date other than any interest amount of Variable Remuneration, interest shall accrue on any such overdue amount (other than any interest amount or Variable Remuneration) from the due date to the date of actual payment at an annual rate equal to: (a) for overdue sums related to Fixed Rate Tranches, the higher of (a) the applicable Fixed Rate plus 2% (200 basis points) or (b) EURIBOR plus 2% (200 basis points); (b) for overdue sums other than under sub-paragraph (a) of Article 4.3 (Interest on overdue sums) above, EURIBOR plus 2% (200 basis points), and shall be payable in accordance with the demand of the Bank. If the Borrower fails to pay any interest amount or Variable Remuneration payable by it under this Contract on its due date, it shall make a liquidated damages payment (pauschalierter Schadensersatz) for all amounts of interest or Variable Remuneration overdue equal to the amount which is payable by applying the higher of (i) a rate which is 2% (200 basis points) higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Fixed Rate Tranche of the overdue amount and (ii) EURIBOR plus 2% (200 basis points), in each case for a period commencing on the due date and up to the date of actual payment, provided that in respect of the liquidated damages payment the Borrower shall be free to prove that no damage has arisen, or that damage has not arisen in the asserted amount and the Bank shall be entitled to prove that further damages have arisen. For the purpose of determining EURIBOR in relation to this Article 4.3 (Interest on overdue sums), the relevant periods within the meaning of Schedule B (Definition of EURIBOR) shall be successive periods of one month commencing on the due date. If the overdue sum is in a currency other than the currency of the Loan, the relevant interbank rate that is generally retained by the Bank for transactions in that currency plus 2% (200 basis points) shall apply, calculated in accordance with the market practice for such rate. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 25 ARTICLE 5 Repayment 5.1 Normal repayment 5.1.1 Single instalment The Borrower shall repay each Tranche in a single instalment on the Maturity Date of that Tranche. 5.2 Voluntary prepayment 5.2.1 Prepayment option (a) Subject to Articles 5.2.2 (Prepayment Fee) and 5.4 (General), the Borrower may prepay all or part of any Tranche, together with accrued interest (including, without limitation, any interest under Article 4.1 (Fixed Rate Tranches) and any Variable Remuneration), any Prepayment Fee and indemnities if any, and any amount due under any Finance Document in connection to such Tranche, upon giving a Prepayment Request with at least 30 (thirty) calendar days prior notice specifying: (i) the Prepayment Amount; (ii) the Prepayment Date, which shall be a Payment Date; and (iii) the Contract Number. (b) The Prepayment Request shall be irrevocable. 5.2.2 Prepayment Fee If the Borrower prepays a Tranche, the Borrower shall pay the relevant Prepayment Fee on the Prepayment Date in accordance with the provisions of the Finance Fee Letter. 5.2.3 Prepayment mechanics (a) Upon presentation by the Borrower to the Bank of a Prepayment Request, the Bank shall issue a Prepayment Notice to the Borrower, not later than 10 (ten) days prior to the Prepayment Date. The Prepayment Notice shall specify the Prepayment Amount, the accrued interest due thereon, and the Prepayment Fee. If the Prepayment Notice specifies the Prepayment Fee, it shall also specify the deadline by which the Borrower may accept the Prepayment Notice, and the Borrower must accept the Prepayment Notice no later than such deadline as a condition to prepayment. (b) The Borrower shall make a prepayment in accordance with the Prepayment Notice and shall accompany the prepayment by the payment of accrued interest (including, without limitation, any interest under Article 4.1 (Fixed Rate Tranches) and any Variable Remuneration) and Prepayment Fee or indemnity, if any, due on the Prepayment Amount, as specified in the Prepayment Notice, and shall identify the Contract Number in the prepayment transfer. 5.3 Compulsory prepayment and cancellation 5.3.1 Investment Cost Reduction Event (a) The Borrower shall in due course inform the Bank if an Investment Cost Reduction Event has occurred or is likely to occur. At any time after the occurrence of an Investment Cost Reduction Event the Bank may, by notice to the Borrower, cancel the undisbursed portion of the Credit and/or demand prepayment of the Loan Outstanding up to the amount by which the Credit exceeds the limit referred to in paragraph (b) below together with accrued interest and all other amounts accrued and outstanding under this Contract in relation to the proportion of the Loan Outstanding to be prepaid. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 26 (b) For the purpose of this Article, "Investment Cost Reduction Event" means that the total cost of the Investment at completion by the final date specified in the Technical Description falls below the figure stated in Recital (A) so that the amount of the Credit exceeds 50% (fifty per cent) of such total cost of the Investment. 5.3.2 Change Events The Borrower shall promptly inform the Bank if: (a) a Change-of-Control Event has occurred or is likely to occur; or (b) there is or is likely to be an enactment, promulgation, execution or ratification of or any change in or amendment to any law, rule or regulation (or in the application or official interpretation of any law, rule or regulation) that occurs or will occur, as applicable, after the date of this Contract and which, in the opinion of the Borrower, would impair the Borrower's ability to perform its obligations under any of the Finance Documents; In such case, or if the Bank has reasonable cause to believe that a Change-of-Control Event or a Change-of-Law Event has occurred or is reasonably likely to occur, the Borrower shall, on request of the Bank, consult with the Bank as to the impact of such event. If 30 (thirty) days have passed since the date of such request and the Bank is of the reasonable opinion that the effects of such event cannot be mitigated to its reasonable satisfaction, or in any event if a Change-of-Control Event or Change-of-Law Event has actually occurred and is continuing, the Bank may by notice to the Borrower, cancel the undisbursed portion of the Credit and/or demand prepayment of the Loan Outstanding, together with accrued interest and all other amounts accrued or outstanding under this Contract. In the event that the Borrower considers information to be provided to the Bank under this Article 5.3.2 (Change Events) to be "inside information" (as defined in the Market Abuse Regulation (Regulation 596/2014)), it shall notify the Bank thereof. 5.3.3 Illegality Event (a) Upon becoming aware of an Illegality Event: (i) the Bank shall promptly notify the Borrower, and (ii) the Bank may immediately (A) suspend or cancel the undisbursed portion of the Credit, and/or (B) demand prepayment of the Loan Outstanding, together with accrued interest and all other amounts accrued and outstanding under this Contract on the date indicated by the Bank in its notice to the Borrower. (b) For the purposes of this Article, "Illegality Event" means that it becomes unlawful in any applicable jurisdiction, or if it becomes contrary to any Sanctions, for the Bank to: (i) perform any of its obligations as contemplated in this Contract; or (ii) fund or maintain the Loan. 5.3.4 Non-EIB Financing If: (a) a Voluntary Non EIB Prepayment has occurred; or (b) (A) a Voluntary Non EIB Prepayment is likely to occur and (B) the Bank has requested a consultation in respect of such Voluntary Non EIB Prepayment, and at least 30 (thirty) days have passed since the date of such request; the Bank may, by notice to the Borrower, cancel the undisbursed portion of the Credit and demand prepayment of the Loan Outstanding (together with accrued interest in relation to the proportion of the Loan Outstanding to be prepaid). The proportion of the Loan Outstanding that the Bank may require to be prepaid shall be the same as the proportion that the prepaid amount of the Non EIB Financing bears to the aggregate outstanding amount of all Non EIB Financing. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 27 5.3.5 Mandatory prepayment in case of resolution on dividends Without prejudice to the provisions of Article 9 (Right to demand repayment) of this Contract, for so long as any amount (other than Variable Remuneration) is outstanding under this Contract or the Credit is available, if: (a) the general assembly (Hauptversammlung) of the Borrower adopts a resolution to distribute a dividend to the holders of the issued stock of the Borrower or to return or purchase shares in the Borrower; and (b) at the time of such resolution and/or at the time of the payment of such dividend or the return or purchase of shares in the Borrower a Default (other than a Default or resulting from a non-compliance by the Borrower with the information covenants as set out in Paragraph 2 (Information concerning the Borrower) of Schedule I (Information and Visits)), has occurred and is continuing; then: (i) in case of Articles 9.1(a) (Right to demand repayment) to 9.1(k) (Right to demand repayment), the Borrower shall on request of the Bank consult with the Bank as to the impact of such event, and if 30 (thirty) days have passed since the date of such request and the effects of such event cannot be mitigated to the Bank’s reasonable satisfaction; or (ii) in case of Article 9.1(l) (Right to demand repayment), the Borrower shall on request of the Bank consult with the Bank as to the impact of such event, and if 20 (twenty) Business Days have passed since the date of such request and such Default is continuing and has not been remedied or waived, then the Bank may by notice to the Borrower: (1) cancel the undisbursed portion of the Credit; and/or (2) demand the immediate prepayment of the Loan in full, together with accrued interest and all other amounts accrued or outstanding under this Contract. For the avoidance of doubt, the Variable Remuneration shall remain payable in respect of the period up to (and including) 31 December 2037, notwithstanding any prepayment under this Article 5.3.5 (Mandatory prepayment in case of resolution on dividends). 5.3.6 Prepayment Fee In the case of a Prepayment Event (other than pursuant to Article 5.3.2 (Change Events) or Article 5.3.3 (Illegality Event)) in relation to a Tranche, the Borrower shall pay the Prepayment Fee in accordance with the Finance Fee Letter. 5.3.7 Prepayment mechanics Any sum demanded by the Bank pursuant to Articles 5.3.1 (Investment Cost Reduction Event) to 5.3.5 (Mandatory prepayment in case of resolution on dividends) shall be paid on the date indicated by the Bank in its notice of demand, such date being a date falling not less than 30 (thirty) days from the date of the demand (or, if earlier, the last day of any applicable grace period permitted by law in respect of the event in Article 5.3.3 (Illegality Event)). 5.4 General (a) A repaid or prepaid amount may not be reborrowed. (b) If the Borrower prepays a Tranche on a date other than a relevant Payment Date, under Article 5.2 (Voluntary prepayment), or if the Bank exceptionally accepts, solely upon the Bank’s discretion, a Prepayment Request with prior notice of less than 30 (thirty) calendar days, the Borrower shall pay to the Bank an administrative fee in such an amount as the Bank shall notify to the Borrower. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 28 ARTICLE 6 Payments 6.1 Day count convention Any amount due under this Contract and calculated in respect of a fraction of a year shall be determined based on a year of 360 (three hundred and sixty) days and a month of 30 (thirty) days. 6.2 Time and place of payment (a) If neither this Contract nor the Bank's demand specifies a due date, all sums other than sums of interest, indemnity and principal are payable within 15 (fifteen) days of the Borrower's receipt of the Bank's demand. (b) Each sum payable by the Borrower under this Contract shall be paid to the following account: or such other account notified by the Bank to the Borrower. (c) The Borrower shall provide the Contract Number as a reference for each payment made under this Contract. (d) Any disbursements by and payments to the Bank under this Contract shall be made using the Disbursement Account (for disbursements by the Bank) and the Payment Account (for payments to the Bank). 6.3 No set-off by the Borrower All payments to be made by the Borrower under this Contract shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim, unless the counterclaim is undisputed (unbestritten) or has been confirmed by a final non-appealable judgement (rechtskräftig festgestellt). 6.4 Disruption to Payment Systems If either the Bank determines (in its discretion) that a Disruption Event has occurred or the Bank is notified by the Borrower that a Disruption Event has occurred: (a) the Bank may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Contract as the Bank may deem necessary in the circumstances; (b) the Bank shall not be obliged to consult with the Borrower in relation to any changes mentioned in sub-paragraph (a) of Article 6.4 (Disruption to Payment Systems) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes; and (c) the Bank shall not be liable for any damages, costs or losses whatsoever arising as a result of a Disruption Event or for taking or not taking any action pursuant to or in connection with this Article 6.4 (Disruption to Payment Systems). |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 29 6.5 Application of sums received 6.5.1 General Sums received from the Borrower shall only discharge its payment obligations if and when received in accordance with the terms of this Contract. 6.5.2 Partial payments If the Bank receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under this Contract, the Bank shall apply that payment in or towards payment of: (a) first, any unpaid fees, costs, indemnities and expenses due under this Contract; (b) secondly, any accrued interest due but unpaid under this Contract and the Variable Remuneration; (c) thirdly, any principal due but unpaid under this Contract; and (d) fourthly, any other sum due but unpaid under this Contract. 6.5.3 Allocation of sums related to Tranches In case of receipt of sums which cannot be identified as applicable to a specific Tranche, and on which there is no agreement between the Bank and the Borrower on their application, the Bank may apply these between Tranches at its discretion. ARTICLE 7 Borrower undertakings and representations (a) The Borrower makes the representations and warranties set out in Schedule G (Representations and Warranties) by way of an independent guarantee (selbständiges Garantieversprechen) pursuant to section 311 (1) German Civil Code (Bürgerliches Gesetzbuch) to the Bank on the date of this Contract. (b) The Repeating Representations are made or deemed to be made by the Borrower on the date of each Disbursement Acceptance, each Disbursement Date, each anniversary of a Disbursement Date and each Payment Date by reference to the facts and circumstances then existing. (c) The undertakings in Schedule H (General Undertakings) and Schedule I (Information and Visits) remain in force from the date of this Contract for so long as any amount is outstanding under this Contract or the Credit is available, save for the undertakings in Paragraphs 7 (Disposal of assets) (to the extent specified in that paragraph), 11 (Merger), 13 (Ownership), 14 (Acquisitions), 15 (Indebtedness), 16 (Guarantees), 17 (Hedging), 19 (Restrictions on loans), 22 (Negative pledge) and 26 (Clauses by inclusion) of Schedule H (General undertakings), which shall remain in force from the date of this Contract for so long as any amount (other than the Variable Remuneration) is outstanding under this Contract or the Credit is available. ARTICLE 8 Charges and expenses 8.1 Taxes, duties and fees The Borrower shall pay all Taxes, duties, fees and other impositions of whatsoever nature, including stamp duty and registration fees, arising out of the execution or implementation of each Finance Document or any related document and in the creation, perfection, registration or enforcement of any security for the Loan to the extent applicable. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 30 The Borrower shall pay all principal, interest, indemnities, Variable Remuneration, and other amounts due under this Contract gross without any withholding or deduction of any national or local impositions whatsoever, provided that if the Borrower is required by law or an agreement with a governmental authority or otherwise to make any such withholding or deduction, it will gross up the payment to the Bank so that after withholding or deduction, the net amount received by the Bank is equivalent to the sum due. If requested by the Borrower, the Bank shall provide the Borrower with a completed U.S. lnternal Revenue Service Form W-BBEN-E. 8.2 Other charges The Borrower shall bear all documented charges and expenses, including professional, banking or exchange charges incurred in connection with the preparation, execution, implementation, enforcement and termination of the Finance Documents or any related document, any amendment, supplement or waiver in respect of the Finance Documents or any related document, and in the amendment, creation, management, enforcement and realisation of any security for the Loan. 8.3 Increased costs, indemnity and set-off (a) The Borrower shall pay to the Bank any documented costs or expenses incurred or suffered by the Bank as a consequence of the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or compliance with any law or regulation which occurs after the date of this Contract, in accordance with or as a result of which (i) the Bank is obliged to incur additional costs in order to fund or perform its obligations under this Contract, or (ii) any amount owed to the Bank under this Contract or the financial income resulting from the granting of the Credit or the Loan by the Bank to the Borrower is reduced or eliminated. (b) Without prejudice to any other rights of the Bank under this Contract or under any applicable law, the Borrower shall indemnify and hold the Bank harmless from and against any loss incurred as a result of any full or partial discharge that takes place in a manner other than as expressly set out in this Contract. (c) The Bank may set off any matured obligation due from the Borrower under each Finance Document (to the extent beneficially owned by the Bank) against any satisfiable (erfüllbar) obligation (within the meaning of section 387 German Civil Code (Bürgerliches Gesetzbuch) owed by the Bank to the Borrower regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Bank may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. If either obligation is unliquidated or unascertained, the Bank may set off in an amount estimated by it in good faith to be the amount of that obligation. ARTICLE 9 Events of default 9.1 Right to demand repayment The Bank may demand (in writing) without prior notice or any judicial or extra judicial step immediate repayment by the Borrower of all or part of the Loan Outstanding (as requested by the Bank), together with accrued interest, any Prepayment Fee and all other accrued or outstanding amounts under this Contract and any other Finance Document, if: (a) any amount payable pursuant to any Finance Document is not paid on the due date at the place and in the currency in which it is expressed to be payable, unless (i) its failure to pay is caused by an administrative or technical error or a Disruption Event and (ii) payment is made within 5 (five) Business Days of its due date; |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 31 (b) any information or document given to the Bank or any representation, warranty or statement made or deemed to be made by the Borrower in, pursuant to or for the purpose of entering into any Finance Document or in connection with the negotiation or performance of any Finance Document is or proves to have been incorrect, incomplete or misleading in any material respect; (c) following any default of the Borrower in relation to any loan, or any obligation arising out of any financial transaction, other than the Loan: (i) the Borrower is required or is capable of being required will, following expiry of any applicable contractual grace period, be required or is capable of being required to prepay, discharge, close out or terminate ahead of maturity such other loan or obligation; or (ii) any financial commitment for such other loan or obligation is cancelled or suspended; and such other loans or obligations or commitments falling under sub-paragraphs (i) and/or (ii) above are in an aggregate principal amount in excess of EUR 1,000,000 (one million euro) or its equivalent in any other currency or currencies; (d) the Borrower is unable to pay its debts as they fall due (zahlungsunfähig) within the meaning of section 17 of the German Insolvency Code (Insolvenzordnung), or is over-indebted (überschuldet) within the meaning of section 19 of the German Insolvency Code (Insolvenzordnung), or suspends its debts, or makes or seeks to make a composition with its creditors including a moratorium, or commences negotiations with one or more of its creditors with a view to rescheduling any of its Indebtedness; (e) any corporate action, legal proceedings or other procedure is taken in relation to the suspension of payments, a moratorium of any indebtedness, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) or an order is made or an effective resolution is passed for the winding up of the Borrower, or if the Borrower takes steps towards a substantial reduction in its capital, is declared insolvent or ceases or resolves to cease to carry on the whole or any substantial part of its business or activities or any situation similar to any of the above occurs under any applicable law; (f) an encumbrancer takes possession of, or a receiver, liquidator, administrator, administrative receiver or similar officer is appointed, whether by a court of competent jurisdiction or by any competent administrative authority or by any person, of or over, any part of the business or assets of the Borrower or any property forming part of the Investment; (g) the Borrower defaults in the performance of any obligation in respect of any other loan granted by the Bank or financial instrument entered into with the Bank; (h) the Borrower defaults in the performance of any obligation in respect of any other loan made to it from the resources of the Bank or the European Union; (i) any distress, execution, sequestration or other process is levied or enforced upon the property of the Borrower or any property forming part of the Investment and is not discharged or stayed within 14 (fourteen) days; (j) a Material Adverse Change occurs, as compared with the position at the date of this Contract; (k) it is or becomes unlawful for the Borrower to perform any of its obligations under the Finance Documents, or the Finance Documents are not effective in accordance with its terms or is alleged by the Borrower to be ineffective in accordance with its terms; or (l) the Borrower fails to comply with any other provision under the Finance Documents (including, without limitation, each of the undertakings in Schedule H (General Undertakings) and Schedule I (Information and Visits)), unless the non-compliance or circumstance giving rise to the non-compliance is capable of remedy and is remedied within 20 (twenty) Business Days from the earlier of the Borrower becoming aware of the non-compliance and a notice served by the Bank on the Borrower. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 32 9.2 Other rights at law Article 9.1 (Right to demand repayment) shall not restrict any other right of the Bank at law to require prepayment of the Loan Outstanding. 9.3 Prepayment Fee In case of demand under Article 9.1 (Right to demand repayment), the Borrower shall pay the Bank the amount demanded together with the relevant Prepayment Fee in accordance with the provisions of the Finance Fee Letter. 9.4 Non-Waiver No failure or delay or single or partial exercise by the Bank in exercising any of its rights or remedies under this Contract shall be construed as a waiver of such right or remedy. The rights and remedies provided in this Contract are cumulative and not exclusive of any rights or remedies provided by law. ARTICLE 10 Law and jurisdiction, miscellaneous 10.1 Governing Law This Contract and any non-contractual obligations arising out of or in connection with it shall be governed by German law. 10.2 Jurisdiction (a) The Courts of Frankfurt am Main, Germany, have exclusive jurisdiction to settle any dispute (a "Dispute") arising out of or in connection with this Contract (including a dispute regarding the existence, validity or termination of this Contract or the consequences of its nullity) or any non-contractual obligation arising out of or in connection with this Contract. (b) The Parties agree that the Courts of Frankfurt am Main, Germany, are the most appropriate and convenient courts to settle Disputes between them and, accordingly, that they will not argue to the contrary. (c) This Article 10.2 (Jurisdiction) is for the benefit of the Bank only. As a result and notwithstanding sub-paragraph (a) above, it does not prevent the Bank from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Bank may take concurrent proceedings in any number of jurisdictions. 10.3 Place of performance Unless otherwise specifically agreed by the Bank in writing, the place of performance under this Contract, shall be the seat of the Bank. 10.4 Evidence of sums due In any legal action arising out of this Contract the certificate of the Bank as to any amount or rate due to the Bank under this Contract shall, in the absence of manifest error, be prima facie evidence of such amount or rate. 10.5 Entire Agreement This Contract (together with the other Finance Documents) constitutes the entire agreement between the Bank and the Borrower in relation to the provision of the Credit hereunder, and supersedes any previous agreement, whether express or implied, on the same matter. |
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Execution version originally dated 29 December 2022, as amended and restated on 10 February 2023 33 10.6 Invalidity (a) The Parties agree that should at any time, any provisions of this Contract be or become void (nichtig), invalid or due to any reason ineffective (unwirksam) this will indisputably (unwiderlegbar) not affect the validity or effectiveness of the remaining provisions and this Contract will remain valid and effective, save for the void, invalid or ineffective provisions, without any Party having to argue (darlegen) and prove (beweisen) the Parties' intent to uphold this Contract even without the void, invalid or ineffective provisions. (b) The void, invalid or ineffective provision shall be deemed replaced by such valid and effective provision that in legal and economic terms comes closest to what the Parties intended or would have intended in accordance with the purpose of this Contract if they had considered the point at the time of conclusion of this Contract. 10.7 Amendments Any amendment to this Contract, including to this Article 10.7 (Amendments), shall be made in writing and shall be signed by the Parties hereto. 10.8 Counterparts This Contract may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Each counterpart is an original, but all counterparts shall together constitute one and the same instrument. ARTICLE 11 Final Articles 11.1 Notices 11.1.1 Form of notice (a) Any notice or other communication given under this Contract must be in writing and, unless otherwise stated, may be made by letter or electronic mail. (b) Notices and other communications for which fixed periods are laid down in this Contract or which themselves fix periods binding on the addressee, may be made by hand delivery, registered letter or by electronic mail. Such notices and communications shall be deemed to have been received by the other Party: (i) on the date of delivery in relation to a hand-delivered or registered letter or (ii) in the case of any electronic mail, only when actually received in readable form and only if it is addressed in such a manner as the other Party shall specify for this purpose. (c) Any notice provided by the Borrower to the Bank by electronic mail shall: (i) mention the Contract Number in the subject line; and (ii) be in the form of a non-editable electronic image (pdf, tif or other common non-editable file format agreed between the Parties) of the notice signed by one or more Authorised Signatories of the Borrower as appropriate, attached to the electronic mail. (d) Notices issued by the Borrower pursuant to any provision of this Contract shall, where required by the Bank, be delivered to the Bank together with satisfactory evidence of the authority of the person or persons authorised to sign such notice on behalf of the Borrower and the authenticated specimen signature of such person or persons. |
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Exhibit 4.15
EVOTEC US RSU PLAN TERMS 2023
EVOTEC SE
U.S. RESTRICTED SHARE UNIT PLAN
1. Introduction and Purpose. This U.S. Restricted Share Unit Plan (this “Plan”) was adopted by the Management Board by resolution dated 14 February 2023. Terms capitalized but not defined shall have the definitions set forth in Section 2.
The purpose of this Plan is to set forth principles and rules, which govern the grant of Stock-based Awards to eligible employees of the Company and its Subsidiaries and Joint Ventures, in order to foster a strong performance culture, to reward the best performers, and to align management and shareholders’ interests in achieving the Company’s financial and other objectives. Evotec believes that this Plan will also assist in attracting and retaining individuals of outstanding training, experience and ability, and will also ultimately promote the long-term success of the Company.
2. Definitions. Unless the context clearly indicates otherwise, the following terms shall have the following meanings:
(a) “ADS” means an American depositary share representing Stock.
(b) “Award” means the grant of a right or potential right, as applicable, to a Participant to receive Restricted Share Units under this Plan. An Award shall be earned and vested only to the extent its terms and conditions are satisfied.
(c) “Award Agreement” means the written or electronic agreement between Evotec and the Participant that sets forth the applicable terms, conditions, and limitations with respect to a particular Award, together with any amendments thereto. Each Award Agreement shall be in such form and shall contain such terms and conditions as determined by the Management Board in its sole discretion.
(d) “Cause” shall mean, unless otherwise defined in the applicable Award Agreement or an employment agreement between the Participant and the Company (or any Subsidiary or Joint Venture, as applicable): (i) a Participant engaging (or about to engage) in willful misconduct that is injurious to the Company or its Subsidiaries or Joint Ventures, (ii) a Participant embezzling or misappropriating funds or property of the Company or its Subsidiaries or Joint Ventures, or a Participant’s conviction of a felony or the Participant’s entry of a plea of guilty or nolo contendere to a felony, (iii) a Participant’s willful failure or refusal to substantially perform his or her duties or responsibilities that continues after being brought to the attention of the Participant, or (iv) a Participant’s violation of any restrictive covenants entered into between the Participant and the Company (or any Subsidiary or Joint Venture, as applicable) or the Company’s (or any Subsidiary’s or Joint Venture’s) code of conduct or written policies or any crime involving a material element of fraud or dishonesty. Any determination of Cause shall be made by the Management Board in its sole discretion. Any such determination shall be final and binding on a Participant.
(e) “Change of Control” means an event described in Section 8 hereof.
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EVOTEC US RSU PLAN TERMS 2023
(f) “Code” means the United States Internal Revenue Code of 1986, as amended from time to time. Any reference in this Plan to a specific section of the Code shall include such section, any valid regulation and other applicable authorities promulgated thereunder, and any comparable provision of any future legislation amending, supplementing, or superseding such section of the Code.
(g) “Company” means Evotec (US), Inc., a wholly-owned subsidiary of Evotec, or any successor thereto.
(h) “Evotec” means Evotec SE, incorporated in and under the laws of Germany, or any successor thereto.
(i) “Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time. Any reference in this Plan to a specific section of the Exchange Act shall include such section, any valid regulation and other applicable authorities promulgated thereunder, and any comparable provision of any future legislation amending, supplementing, or superseding such section of the Exchange Act.
(j) “Federal Arbitration Act” means the United State Federal Arbitration Act, as amended from time to time.
(k) “Joint Venture” means a joint venture, corporation or partnership, or comparable entity, in which the Company or a Subsidiary has a material equity interest.
(l) “Management Board” means the Management Board of Evotec.
(m) “NASDAQ” means the NASDAQ Stock Market LLC, or any successor thereto.
(n) “Participant” means (i) an employee of the Company, its Subsidiaries or Joint Ventures or (ii) an individual providing services to the Company or its Subsidiaries or Joint Ventures, who, in each case (A) has been selected by the Management Board to receive an Award under this Plan and (B) to the extent required by the Management Board, has executed an Award Agreement.
(o) “Person” means any individual, entity or group, including any “person” within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act.
(p) “Plan” means this Evotec U.S. Restricted Share Unit Plan, as may be amended from time to time, including any and all component plans and programs established hereunder pursuant to which Awards are granted.
(q) “Restricted Share Unit” means an Award, designated as a unit, providing a Participant with the right to receive a designated number of shares of Stock or ADSs or cash in an amount determined as a function of a designated number of shares of Stock at a date on or after, and subject to, the satisfaction of vesting conditions and such other terms and conditions, as specified by the Management Board in the Award Agreement in accordance with Section 7 hereof; provided that with respect to any Award that represents the right to receive ADSs, references to Stock and shares herein shall instead be deemed to refer to ADSs, as applicable.
(r) “Resulting Entity” has the meaning set forth in Section 8(d)(II) hereof.
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EVOTEC US RSU PLAN TERMS 2023
(s) “Section 409A” means Section 409A of the Code and the United States Department of Treasury regulations and other interpretive guidance issued thereunder.
(t) “Securities Act of 1933” means the United States Securities Act of 1933, as amended from time to time.
(u) “Stock” means ordinary shares, no par value per share of Evotec.
(v) “Subsidiary” or “Subsidiaries” means any corporation or entity of which the Company owns directly or indirectly, at least 50% of the total voting power or in which it has at least a 50% economic interest, and which is authorized by the Management Board to participate in this Plan.
(w) “Termination Event” has the meaning set forth in Section 8 hereof.
(x) “Voting Stock” has the meaning set forth in Section 8(d)(I) hereof.
3. Administration. This Plan will be administered by the Management Board. The Management Board shall have the discretionary authority to select those individuals who are eligible to participate in this Plan, to determine the number, type, and amount of Awards to be granted to Participants, to construe and interpret this Plan and any Awards granted thereunder, to establish and amend rules for this Plan’s administration, to change the terms and conditions of Awards at or after grant (subject to the provisions of Section 14 hereof), to correct any defect or supply any omission or reconcile any inconsistency in this Plan or in any Award granted under this Plan, and to make all other determinations which it deems necessary or advisable for the administration of this Plan.
The Management Board may also authorize one or more employees of the Company to select individuals to participate in this Plan and to determine the number and amount of Awards to be granted to such Participants. Any reference in this Plan to the Management Board shall include such authorized officer or officers.
The determinations of the Management Board shall be made in accordance with its judgment as to the best interests of the Company and Evotec and its shareholders and in accordance with the purposes of this Plan. Any determination of the Management Board under this Plan may be made without notice or meeting, but must be in a writing signed by all the Management Board members, and shall be final and binding on all interested Persons to the maximum extent permitted under applicable law.
4. Participants. The Management Board shall consider all factors that it deems relevant in selecting Participants and in determining the type and amount of their respective Awards. Designation of a Participant in any year shall not require the Management Board to designate that individual to receive an Award in any other year, or to receive the same type or amount of Award as granted to the Participant in any other year, or as granted to any other Participant, in any year.
5. Shares Available under this Plan. The maximum aggregate number of shares of Stock available for grant pursuant to Awards under this Plan is up to 2,500,000. The following shares of Stock related to Awards under this Plan may again be available for issuance under this Plan: (a) any shares of Stock covered by an Award which are settled in cash and (b) any shares of Stock related to Awards that expire, lapse, are forfeited or cancelled or terminate for any other reason without issuance of shares of Stock.
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EVOTEC US RSU PLAN TERMS 2023
Any shares of Stock retained by Evotec to comply with applicable income tax or social tax withholding requirements shall be deemed delivered for purposes of this Plan and will not be deemed to be Stock available for Awards under this Plan.
All Stock issued under this Plan may be either authorized and unissued Stock (from a capital increase against contribution in kind) or issued Stock reacquired by Evotec (including treasury shares). If the Restricted Share Units are to be settled with newly issued Stock from a capital increase against contribution in kind, Participants may be required to participate in the capital increase in accordance with German law which may, inter alia, entail entering into a contribution agreement with Evotec and signing a subscription certificate.
The Stock reserved for issuance and the other limitations set forth above shall be subject to adjustment in accordance with Section 9(a) hereof.
6. Types of Awards, Payments, and Limitations. Awards shall consist of Restricted Share Units as described in Section 7. Payment of Awards may be in the form of cash, Stock, or combinations thereof as the Management Board shall determine, and with the expectation that any Award of Stock shall be styled to preserve such restrictions as it may impose. The Management Board may require the execution of any such agreement by a Participant. Acceptance of the Award by the applicable Participant shall constitute agreement by the Participant to the terms and conditions of the Award.
The Management Board may (but need not) provide that any Awards earn dividends or dividend equivalents and interest on such dividends or dividend equivalents. Such dividends or dividend equivalents may be paid currently or may be credited to a Participant’s Plan account and are subject to the same terms and conditions as the underlying Award. Any crediting of dividends or dividend equivalents may be subject to such terms and conditions as the Management Board may establish, including reinvestment in additional Stock or Stock equivalents.
Awards shall be evidenced by an Award Agreement that sets forth the terms, conditions and limitations of such Award. Such terms may include, but are not limited to, the term of the Award, the provisions applicable in the event the Participant’s employment terminates, and the Evotec’s authority (subject to the provisions of Section 14 hereof) to unilaterally or bilaterally amend, modify, suspend, cancel or rescind any Award, including, without limitation, the ability to amend such Awards to comply with changes in applicable law. An Award may also be subject to other provisions (whether or not applicable to similar Awards granted to other Participants) as the Management Board determines appropriate, including provisions intended to comply with applicable securities laws, stock exchange and other regulatory requirements, understandings or conditions as to the Participant’s employment, requirements or inducements for continued ownership of Stock after vesting of Awards, or forfeiture of Awards in the event of termination of employment shortly after vesting, or breach of confidentiality or other covenants following termination of employment.
7. Restricted Share Units. Restricted Share Units may be awarded to Participants under such terms and conditions as shall be established by the Management Board. Restricted Share Units shall be subject to vesting conditions and such other terms and conditions as the Management Board determines, including, without limitation, any of the following:
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EVOTEC US RSU PLAN TERMS 2023
(a) a prohibition against sale, assignment, transfer, pledge, hypothecation or other encumbrance for a specified period; and
(b) a requirement that the holder forfeit the Restricted Share Units in the event of termination of employment during the period of restriction.
All restrictions shall expire and the Award shall vest at such times as the Management Board shall specify in the Award Agreement.
8. Change of Control.
(a) Unless otherwise provided in the Award Agreement, or otherwise determined by the Management Board, unless Awards are not assumed, converted or replaced in connection with a transaction that constitutes a Change of Control (in which case such Awards shall vest immediately prior to the Change of Control), notwithstanding any other provision of this Plan to the contrary, in the event that the employment of the Participant is involuntarily terminated by the Company, or the applicable Subsidiary or Joint Venture, (or the applicable successor to such entity) other than for Cause within a twelve (12) month period following the effective date of a Change of Control (a “Termination Event”):
(i) all Restricted Share Units shall be considered to be earned and vested and payable in full, and such Awards shall be settled in cash or shares, or in any combination thereof, as determined by the Management Board in its discretion, as promptly as practicable (but in no event later than 60 days following the Termination Event); and
(ii) subject to the terms of this Plan, the Management Board may also make additional adjustments and/or settlements of outstanding Awards as it deems appropriate and consistent with this Plan’s purposes and applicable law.
(b) In the event of a Change of Control, the Management Board may in its discretion and upon at least ten (10) days’ advance notice to the affected Participants, cancel any outstanding Awards and pay to the holders thereof, in cash or shares, or any combination thereof, the value of such Awards based upon the price per share received or to be received by other shareholders of Evotec in the event.
(c) Notwithstanding the foregoing, if any Award is subject to Section 409A, this Section 8 shall be applicable only to the extent specifically provided in the Award Agreement and in accordance with Section 409A.
(d) To the extent the effect of a Change of Control on any Award granted under this Plan is not otherwise addressed in this Section 8 or the applicable Award Agreement, the Management Board may, in its sole discretion, as to any such Award, take any one or more of the following actions: (i) provide for the acceleration of any time periods relating to the vesting or realization of any such Award so that such Award may be realized in full on or before a date fixed by the Management Board; (ii) provide for the purchase of any such Award; (iii) make such adjustment to any such Award then outstanding as the Management Board deems appropriate to reflect such Change of Control; (iv) cause any such Award then outstanding to be assumed, or new rights substituted therefor, by the successor company (or a subsidiary or affiliate of such successor company, as applicable) after such Change of Control; or (v) take any other action with respect to such Award as the Management Board may determine is appropriate, in its sole discretion.
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EVOTEC US RSU PLAN TERMS 2023
For purposes of this Plan, the term “Change of Control” shall mean:
(I) the acquisition by any individual, entity or group, including any Person, of beneficial ownership (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the then outstanding capital stock of Evotec that by its terms may be voted on all matters submitted to shareholders of Evotec generally (“Voting Stock”); provided, however, that the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from Evotec (excluding any acquisition resulting from the exercise of a conversion or exchange privilege in respect of outstanding convertible or exchangeable securities unless such outstanding convertible or exchangeable securities were acquired directly from Evotec); (ii) any acquisition by Evotec; (iii) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by Evotec; or (iv) any acquisition by any entity pursuant to a reorganization, merger or consolidation involving Evotec, if, immediately after such reorganization, merger or consolidation, each of the conditions described in clauses (i) and (ii) of subsection (II) below shall be satisfied; and provided further that, for purposes of clause (ii) above, if (A) any Person (other than Evotec or any employee benefit plan (or related trust) sponsored or maintained by Evotec) shall become the beneficial owner of more than 50% of the Voting Stock by reason of an acquisition of Voting Stock by Evotec, and (B) such Person shall, after such acquisition by Evotec, become the beneficial owner of any additional shares of the Voting Stock and such beneficial ownership is publicly announced, then such additional beneficial ownership shall constitute a Change of Control; or
(II) the consummation of a reorganization, merger or consolidation of Evotec, or the sale, lease, exchange or other transfer of all or at least 50% of the total gross fair market value of all of the assets of Evotec (with the total gross fair market value of the total assets of Evotec and the assets of Evotec being sold, leased, exchanged, or transferred each determined without regard to any liabilities associated with such assets), excluding, however, any such reorganization, merger, consolidation, sale, lease, exchange or other transfer with respect to which, immediately after consummation of such transaction: (i) all or substantially all of the beneficial owners of the Voting Stock of Evotec outstanding immediately prior to such transaction continue to beneficially own, directly or indirectly (either by remaining outstanding or by being converted into voting securities of the entity resulting from such transaction), more than 50% of the combined voting power of the voting securities of the entity resulting from such transaction (including, without limitation, Evotec or an entity which as a result of such transaction owns Evotec or all or at least 50% of the total gross fair market value of all of the assets of Evotec (as described in herein), directly or indirectly) (the “Resulting Entity”) outstanding immediately after such transaction, in substantially the same proportions relative to each other as their ownership immediately prior to such transaction; and (ii) no Person (other than any Person that beneficially owned, immediately prior to such reorganization, merger, consolidation, sale or other disposition, directly or indirectly, Voting Stock representing more than 50% of the combined voting power of Evotec’s then outstanding Voting Stock) beneficially owns, directly or indirectly, more than 50% of the combined voting power of the then outstanding capital stock of the Resulting Entity; or
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EVOTEC US RSU PLAN TERMS 2023
(III) upon the approval of a plan of complete liquidation or dissolution of Evotec.
9. Adjustment Provisions.
(a) In the event of any change affecting the number, class, market price or terms of the Stock by reason of share dividend, share split, recapitalization, reorganization, merger, consolidation, spin-off, disaffiliation of a Subsidiary, combination of Stock, exchange of Stock, Stock rights offering, or other similar event, or any distribution to the holders of Stock other than a regular cash dividend, the Management Board shall equitably substitute or adjust the number or class of Stock which may be issued under this Plan in the aggregate or to any one Participant in any calendar year and the number, class, price or terms of shares of Stock subject to outstanding Awards.
(b) In the event of any merger, consolidation or reorganization of Evotec with or into another corporation which results in the outstanding Stock of Evotec being converted into or exchanged for different securities, cash or other property, or any combination thereof, there shall be substituted, on an equitable basis, for each share of Stock then subject to an Award, the number and kind of shares of stock, other securities, cash or other property to which holders of Stock will be entitled pursuant to the transaction.
10. Substitution and Assumption of Awards. The Management Board may authorize the issuance of Awards in connection with the assumption of, or substitution for, outstanding equity awards previously granted to individuals who become employees of the Company or any Subsidiary or Joint Venture as a result of any merger, consolidation, acquisition of property or stock, or reorganization, upon such terms and conditions as the Management Board may deem appropriate.
11. Non-transferability. Absent prior written consent of the Management Board, Awards, and any rights and privileges conferred thereby, shall not be sold, assigned, transferable, pledge or otherwise encumbered, whether voluntary or involuntarily, other than by will or the laws of descent and distribution. Upon any attempt to sell, assign, transfer, pledge, or otherwise encumber any Award or of any right or privilege conferred thereby, contrary to this provision, or upon the sale or levy or any attachment or similar process upon the Award or rights and privileges conferred thereby, such Award will terminate and become null and void. No right or benefit hereunder shall in any manner be liable for or subject to any debts, contracts, liabilities or torts of the person entitled to such benefits. In the event of the death of a Participant, payment with respect to any Award shall be made only to the executor or administrator of the estate of the deceased Participant or to the Person or Persons to whom the deceased Participant’s rights under the Award shall pass by will or the laws of descent and distribution.
12. Taxes, withholding & sale of shares. The Company, Subsidiary and/or Joint Venture shall be entitled to deduct and withhold from the wages, salary, bonus and other income paid by the Company, Subsidiary or Joint Venture any federal, state and cantonal, local and social or payroll tax, including social security contributions, attributable to any amounts payable or Stock deliverable under this Plan. The Company may defer making payment or delivery as to any Award, if any such tax is payable, until indemnified to its satisfaction, and the Company shall have no liability to any Participant for exercising the foregoing right.
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The Management Board may, in its sole discretion and subject to such rules as it may adopt, permit or require a Participant to pay all of or a portion of the federal, state and cantonal, local and social or payroll tax arising in connection with the grant, vesting, or settlement of any Award by having Evotec withhold shares of Stock.
13. Duration of this Plan. No Award shall be made under this Plan more than five (5) years after May 31, 2023; provided, however, that the terms and conditions applicable to any Award granted on or before such date may thereafter be amended or modified by mutual agreement between Evotec and the Participant, or such other Person as may then have an interest therein.
14. Amendment and Termination of Award. The Management Board may amend this Plan from time to time or terminate this Plan at any time. However, unless expressly provided in an Award Agreement or this Plan, no such action shall reduce the amount of any existing Award or change the terms and conditions thereof without the Participant’s consent; provided, however, that the Management Board may amend or terminate an Award to comply with changes in applicable law without a Participant’s consent.
15. Other Provisions.
(a) The Management Board may grant Awards to employees or other service providers of the Company, its Subsidiaries and Joint Ventures who reside or performs services outside the United States. Notwithstanding anything in this Plan to the contrary, the Management Board may, in its sole discretion: (a) amend or vary the terms of the Awards in order to conform such terms with the requirements of each jurisdiction where a Subsidiary or Joint Venture is located; (b) amend or vary the terms of this Plan in each jurisdiction where a Subsidiary or Joint Venture is located as it considers necessary or desirable to take into account or to mitigate or reduce the burden of taxation and social security contributions for Participants and/or the Subsidiary or Joint Venture; or (c) amend or vary the terms of this Plan in a jurisdiction where the Subsidiary or Joint Venture is located as it considers necessary or desirable to meet the goals and objectives of this Plan. The Management Board may where it deems appropriate in its sole discretion, establish one or more sub-plans for these purposes, and establish administrative rules and procedures to facilitate the operation of this Plan in such jurisdictions.
(b) Neither this Plan nor any Award shall confer upon a Participant any right with respect to continuing the Participant’s employment or service with the Company or any of its Subsidiaries or Joint Ventures; nor interfere in any way with the Participant’s right or the Company’s or a Subsidiary’s or Joint Venture’s right to terminate such relationship at any time, with or without cause, to the extent permitted by applicable laws and any enforceable agreement between the Participant and the Company or a Subsidiary or Joint Venture, as applicable.
(c) No fractional shares of Stock shall be issued or delivered pursuant to this Plan or any Award, and the Management Board, in its discretion, shall determine whether cash, other securities, or other property shall be paid or transferred in lieu of any fractional shares of Stock, or whether such fractional shares or any rights thereto shall be canceled, terminated, or otherwise eliminated.
8
EVOTEC US RSU PLAN TERMS 2023
(d) In the event any provision of this Plan shall be held to be illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining parts of this Plan, and this Plan shall be construed and enforced as if such illegal or invalid provisions had never been contained in this Plan.
(e) Notwithstanding any provision to the contrary, Evotec shall have no liability to deliver any Award or make any other distribution of benefits under this Plan unless such delivery or distribution would comply with all applicable laws (including, without limitation, the requirements of the Securities Act of 1933).
(f) Except as otherwise provided in any Award Agreement or as expressly set forth herein, a Participant shall have no rights as a shareholder (or American depository receipt holder) of Evotec until he or she becomes the holder of record of the shares of Stock.
(g) Payments and other benefits received by a Participant under an Award shall not be deemed a part of a Participant’s compensation for purposes of determining the Participant’s benefits under any other employee benefit plans or arrangements provided by the Company, a Subsidiary or a Joint Venture, unless the Management Board expressly provides otherwise in writing or unless expressly provided under such other plan or arrangement.
16. Governing Law. Subject to Section 15(a) hereof, this Plan and any actions taken in connection herewith shall be governed by and construed in accordance with applicable federal law of the United States of America and, to the extent not pre-empted thereby or inconsistent therewith, the laws of the State of Delaware, United States of America, without regard to any jurisdiction’s conflict of laws principles. BY ACCEPTING ANY AWARD UNDER THIS PLAN, THE PARTICIPANT EXPRESSLY AND IRREVOCABLY AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN WILMINGTON, DELAWARE, UNITED STATES OF AMERICA IN RESPECT OF ANY MATTER RELATING THIS PLAN THAT IS NOT OTHERWISE ARBITRATED OR RESOLVED IN ACCORDANCE WITH SECTION 21 HEREOF, INCLUDING, WITHOUT LIMITATION, ANY ACTION OR PROCEEDING TO COMPEL ARBITRATION OR TO ENFORCE AN ARBITRATION AWARD.
17. Arbitration. Any and every dispute or difference arising under, or in relation to this Plan, including any dispute or difference as to the validity, meaning or effect hereof, shall be finally settled by arbitration in Wilmington, Delaware, United States of America under the rules of the Federal Arbitration Act. The arbitration award shall be final and binding and shall deal with the question of the costs of arbitration and all matters relating thereto. The arbitrator is not empowered to award damages in excess of reasonable actual damages. The dispute shall be resolved by a single arbitrator appointed by the American Arbitration Association.
18. Unfunded Plan. Unless otherwise determined by the Management Board, this Plan shall be unfunded and shall not create (or be construed to create) a trust or a separate fund or funds. This Plan shall not establish a fiduciary relationship between Evotec and any Participant or other Person. To the extent any Person holds any rights by virtue of an Award under this Plan, such right (unless otherwise determined by the Management Board) shall be not greater than the right of an unsecured general creditor of Evotec.
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EVOTEC US RSU PLAN TERMS 2023
19. Section 409A. Awards generally are intended to be exempt from Section 409A; provided, however, notwithstanding any contrary provision of this Plan or any agreement or notice governing any Award, the following provisions shall apply if and to the extent any payment made pursuant to an Award is subject to (and not exempt from) Section 409A:
(a) Such payment shall comply with Section 409A and, accordingly, to the maximum extent permitted, this Plan shall be interpreted, and such payment shall be made under such other conditions determined by the Management Board that cause such payment, to be in compliance with Section 409A.
(b) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Plan or an Award providing for the payment of any amounts upon or following a Participant’s termination date unless such termination is also a “separation from service” within the meaning of Section 409A, applying the default rules thereof.
(c) With respect to any payment that is otherwise payable upon a Participant’s separation from service, in the event the Participant is a “specified employee” (as defined in Section 409A), any such payment that would otherwise have been payable in the first six (6) months following the Participant’s separation from service date will not be paid to the Participant until the date that is six (6) months and one day following the Participant’s separation from service date (or, if earlier, the Participant’s date of death), with any such deferred payments being paid in a lump sum; provided that, thereafter, the remainder of any such payments shall be payable in accordance with the terms of this Plan or the Award Agreement, as the case may be.
(d) Whenever a payment under this Plan or an Award Agreement specifies a period within which such payment may be made, the actual date of payment within the specified period shall be within the sole discretion of the Management Board.
(e) In no event shall any payment under this Plan that constitutes “deferred compensation” for purposes of Section 409A be offset by any other payment pursuant to this Plan or otherwise.
(f) To the extent required under Section 409A, (i) any reference herein to the term “Plan” shall mean this Plan and any other plan, agreement, method, program, or other arrangement, with which this Plan is required to be aggregated under Section 409A, and (ii) any reference herein to the term “Company” shall mean the Company and all Persons with whom the Company would be considered a single employer under Section 414(b) or 414(c) of the Code.
In such case, if this Plan or the terms of an Award Agreement fail to meet the requirements of Section 409A with respect to such Award, then such Award shall remain in effect and be subject to taxation in accordance with Section 409A and the Management Board may accelerate distribution or settlement of an Award in accordance with Section 409A. Evotec shall have no liability for any tax imposed on a Participant under Section 409A, and if any tax is imposed on a Participant, the Participant shall have no recourse against Evotec for payment of any such tax. Notwithstanding the foregoing, if any modification of an Award causes the Award to be deferred compensation under Section 409A, the Management Board may rescind such modification in accordance with Section 409A.
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EVOTEC US RSU PLAN TERMS 2023
Notwithstanding any provisions of this Plan, Evotec does not guarantee to any Participant or any other Person with an interest in an Award that any Award intended to be exempt from Section 409A shall be so exempt, nor that any Award intended to comply with Section 409A shall so comply.
20. Successors and Assigns. This Plan shall be binding on Evotec and all Participants and their respective heirs, executors, agents, trustees, administrators, successors and assigns.
21. Gender, Singular, Plural, Captions. Where the context of this Plan permits, words in the masculine gender shall include the feminine gender, the plural form of a word shall include the singular form, and the singular form of a word shall include the plural form. In addition, the captions of the Sections of this Plan are for convenience only and shall not control or affect the meaning or construction of any of its provisions.
22. Effective Date and Applicability. This Plan became effective as of May 31, 2023, as adopted by the Management Board by written resolution, and the provisions contained herein shall apply with respect to any and all Awards granted on or after such date.
23. Headings. The headings of sections herein are included solely for convenience and shall not affect the meaning of any of the provisions of this Plan.
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11
Exhibit 4.16
EVOTEC US RSU PLAN AWARD AGREEMENT
EVOTEC SE
U.S. RESTRICTED SHARE UNIT PLAN AWARD AGREEMENT
This U.S. Restricted Share Unit Award Agreement (this “Agreement”) is entered into, effective as of 15 June 2023 (the “Grant Date”), by and between Evotec (the “Company”) and you (the “Participant”) pursuant and subject to the Evotec SE U.S. Restricted Share Unit Plan, as it may be amended from time to time (the “Plan”), as approved by the Management Board of Evotec (the “Management Board”). The Participant and Evotec agree to take such further action as may reasonably be necessary to carry out the intent of this Agreement. All capitalized terms not defined in this Agreement shall have the meaning stated in the Plan. If there is any inconsistency or conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control and govern unless this Agreement expressly states that an exception to the Plan is being made.
This Agreement and the Award described herein are effective as of the Grant Date but shall be canceled if the Participant fails to accept the Award by signing the Agreement and returning the Agreement to their local HR department.
1. |
Grant of Restricted Share Units. Pursuant to the Plan and subject to the terms and conditions of this Agreement and the Plan (which is incorporated herein by reference), Evotec hereby grants to the Participant a number of Restricted Share Units (the “Units”) as set forth in Annex A of this Agreement. The vesting of the Units shall be pursuant to and in accordance with Annex A of this Agreement and is subject to the achievement or satisfaction of the following condition and Sections 2 and 3 of this Agreement: |
(a) |
the Participant’s continuous active employment with the Company |
A Unit constitutes a promise of Evotec to deliver (or cause to be delivered) to the Participant, subject to the terms, conditions and restrictions of this Agreement and the Plan, one ordinary share, no par value per share of Evotec on the Settlement Date (as defined in Section 2) as provided herein (individually, each a “Share” and collectively, the “Shares”) or, in the Management Board’s sole discretion, the cash equivalent of the Fair Market Value (as defined below) of one Share on the Settlement Date (the “Cash Amount”) or ADSs with equivalent Fair Market Value as the Fair Market Value of one Share on the Settlement Date (and in the case of Awards with respect ADSs, references herein to Shares or stock herein shall be deemed instead to refer to ADSs, as applicable). “Fair Market Value” means a price that is based on the opening selling price, closing selling price, actual high, low, or average of the actual high and low selling price, or average selling prices (weighted or unweighted based on the volume of trading) of a Shares or ADS reported on the NASDAQ, or such other established securities market on the applicable date, the trading day immediately preceding the applicable date, the trading day next succeeding the applicable date, or during a specified period before or after the applicable date, all as determined by the Management Board in its sole discretion, or such other price as required by applicable law or regulation.
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EVOTEC US RSU PLAN AWARD AGREEMENT
2. |
Date and Conditions of Vesting. The Units are subject to forfeiture until they vest unless the Management Board decides to define regulations that allow for accelerated vesting. Upon vesting, each Unit will be settled by issuance of one Share, free of any restrictions (other than the restrictions on transfer provided herein), or the Cash Amount. Issuance of the Shares or Cash Amount shall be made as soon as administratively feasible after the Management Board certifies the Participant’s satisfaction of the conditions to vesting set forth in Section 1, but in no event later than March 15th of the year following the applicable vesting date (the date of settlement, the “Settlement Date”), subject to any delay of the Settlement Date if the calculation of the amount of the payment is not administratively practicable due to events beyond the control of Evotec to the extent permitted by Section 409A (described in Section 13(a) below); provided that: |
(a) |
If one of the following events occurs prior to the applicable Settlement Date but after the applicable vesting date prescribed in Section 1 and Annex A: the Participant’s death, Total Disability (as defined in Section 2(b)), approved leave of absence, then the Participant shall be deemed to be an employee of the Company for purposes of Section 2 at the Settlement Date (and any portion of the Award that does not vest and settle on the Settlement Date will be forfeited). |
(b) |
“Total Disability” means, as determined in good faith by the Company, the permanent inability of the Participant, as a result of accident or sickness, to perform such Participant’s occupation or employment for which the Participant is suited by reason of the Participant’s previous training, education and experience and which results in the termination of the Participant’s employment. |
(c) |
In case of the (early) retirement of the Participant during the Vesting Period, all granted Awards shall vest according to the vesting schedule as defined in Annex A of this agreement. |
3. |
Forfeiture of Award. Unless otherwise determined by the Management Board in its sole discretion, all outstanding Units shall be forfeited upon the date: |
(a) |
The Management Board determines, in its sole discretion, that the vesting conditions set forth in Section 1 are not met; or |
(b) |
The Participant’s employment with the Company is terminated for any reason (other than as provided in Section 2(a)) prior to the Settlement Date; or |
(c) |
The Participant violates the confidentiality provision in Section 11 or, as a result of an action by the Participant, it is determined that any term of this Agreement is invalid. |
4. |
Adjustments. If any change is made to the outstanding Shares or the capital structure of Evotec, the Units will be adjusted as contemplated by Section 8 of the Plan. |
5. |
Change of Control. In the event of a Change of Control, awards will be treated in |
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EVOTEC US RSU PLAN AWARD AGREEMENT
accordance with Section 7 of the Plan.
6. |
Withholding for Taxes. Regardless of any action the Company or, if different, the Participant’s employer takes with respect to any or all income tax (including U.S. federal, state and local taxes or non-U.S. taxes), social insurance, payroll tax, fringe benefit, payment on account or other tax-related withholding, to the extent applicable to the Participant (“Tax-Related Items”), the Participant acknowledges that the ultimate liability for all Tax-Related Items legally due by the Participant is and remains the Participant’s responsibility and that the Company and the Participant’s employer (a) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Units, including the grant of the Units, the vesting of the Units, the subsequent issuance or sale of any Shares acquired pursuant to the Units and the receipt of any dividends or dividend equivalents, and (b) do not commit to structure the terms of the grant or any aspect of the Units to reduce or eliminate the Participant’s liability for Tax-Related Items. To the extent that the grant of the Units, the vesting of the Units, the receipt of any dividends or dividend equivalents, or the delivery of the Shares with respect to any Units earned hereunder results in a withholding obligation for Tax-Related Items prior to the delivery of Shares or the Cash Amount hereunder, the Company or the Participant’s employer, in its sole discretion, may withhold from the Shares or the Cash Amount or other form of remuneration payable to the Participant to satisfy its withholding obligations required by applicable law or regulations. In the event the withholding requirements are not satisfied through the withholding of Shares or the Cash Amount or other form of remuneration payable to the Participant, no Shares or Cash Amount will be issued to the Participant (or the Participant’s estate) upon vesting of the Units unless and until satisfactory arrangements have been made by the Participant with respect to the payment of any Tax-Related Items that the Company determines, in its sole discretion, must be withheld or collected with respect to such Units. If the Participant is subject to taxation in more than one jurisdiction, the Participant acknowledges that the Company or the Participant’s employer (or former employer, if applicable) may be required to withhold or account for Tax- Related Items in more than one jurisdiction. All other Tax-Related Items related to the Units or the Cash Amount and any Shares or Cash Amount delivered in payment thereof are the Participant’s sole responsibility. Evotec may refuse to issue or deliver Shares, the Cash Amount or proceeds from the sale of Shares until arrangements satisfactory to Evotec have been made in connection with the Tax-Related Items. |
7. |
Rights as Stockholder. The Participant shall have no rights as a stockholder with respect to the Shares underlying the Units granted under this Award unless and until the Units vest and are settled by the issuance of such Shares. |
8. |
Employment. Neither the granting of the Units nor any term or provision of this Agreement shall constitute or be evidence of any understanding, express or implied, on the part of the Company or any of its Subsidiaries to guarantee (a) the Participant’s continued employment with the Company or any of its Subsidiaries, or (b) the Participant’s continued participation in the Plan in future years, or (c) the Participant’s entitlement to any other Plan award or other type of incentive compensation. |
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EVOTEC US RSU PLAN AWARD AGREEMENT
9. |
Non-Transferability. |
(a) |
Absent prior written consent of the Management Board or except as otherwise provided in the Plan, the Award granted hereunder to the Participant may not be sold, assigned, transferred, pledged or otherwise encumbered, whether voluntarily or involuntarily, by operation of law or otherwise; provided, however, that the transfer of any Shares awarded and vested hereunder shall not be restricted by virtue of this Agreement. |
(b) |
Consistent with the foregoing, no right or benefit under this Agreement shall be subject to transfer, anticipation, alienation, sale, assignment, pledge, encumbrance or charge, whether voluntary or involuntary, by operation of law or otherwise, and any attempt to transfer, anticipate, alienate, sell, assign, pledge, encumber or charge the same shall be null and void. No right or benefit hereunder shall in any manner be liable for or subject to any debts, contracts, liabilities or torts of the person entitled to such benefits. |
10. |
Compliance with Securities Laws. Evotec will not be required to deliver any Shares or Cash Amount pursuant to this Agreement, if, in the opinion of counsel for Evotec, such issuance would violate applicable securities laws or stock exchange and other regulatory requirements. Prior to the issuance of any Shares or Cash Amount pursuant to this Agreement, Evotec may require that the Participant (or the Participant’s beneficiary or legal representative upon the Participants’ death or Total Disability, as applicable) enter into such written representations, warranties and agreements as Evotec may reasonably request in order to comply with applicable laws or with this Agreement. |
11. |
Confidentiality. The Participant will not, without the prior written consent of Evotec, use, divulge, disclose or make accessible to any other person, firm, partnership, corporation or other entity, any information regarding the terms or conditions of this Agreement or the Units, except to share such information with the Participant’s family members and financial and legal advisors, who will be under an obligation to keep the terms and conditions of this Agreement and the Units confidential. Notwithstanding anything to the contrary in this Agreement or otherwise, nothing shall limit the Participant’s rights under applicable law to provide truthful information to any governmental entity or to file a charge with or participate in an investigation conducted by any governmental entity. Notwithstanding the foregoing, the Participant agrees to waive the Participant’s right to recover monetary damages in connection with any charge, complaint or lawsuit filed by the Participant or anyone else on the Participant’s behalf (whether involving a governmental entity or not); provided that the Participant is not agreeing to waive, and this Agreement shall not be read as requiring the Participant to waive, any right the Participant may have to receive an award for information provided to any governmental entity. The Participant is hereby notified that the immunity provisions in Section 1833 of Title 18 of the United States Code provide that an individual cannot be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that is made (1) in confidence to federal, |
4
EVOTEC US RSU PLAN AWARD AGREEMENT
state or local government officials, either directly or indirectly, or to an attorney, and is solely for the purpose of reporting or investigating a suspected violation of the law, (2) under seal in a complaint or other document filed in a lawsuit or other proceeding, or (3) to the Participant’s attorney in connection with a lawsuit for retaliation for reporting a suspected violation of law (and the trade secret may be used in the court proceedings for such lawsuit) as long as any document containing the trade secret is filed under seal and the trade secret is not disclosed except pursuant to court order.
12. |
Amendment. This Agreement may be amended by the Management Board at any time, provided that, except as otherwise provided in the Plan, no such amendment, without the written consent of the Participant, shall adversely affect the rights of the Participant granted hereunder. |
13. |
Miscellaneous. |
(a) |
Compliance with Section 409A. This Agreement and the Award are intended to be exempt from Section 409A (unless duly deferred in accordance with Section 5 hereof), and this Agreement will be administered to give effect to such intent (and if the Award or Agreement is determined to be subject to Section 409A, it will be administered and maintained to comply with Section 409A). It is the intention of Evotec and the Participant that this Agreement not result in unfavorable tax consequences under Section 409A, and shall be interpreted and administered to give effect to that intent. Accordingly, the Participant consents to any amendment of this Agreement as Evotec may reasonably make in furtherance of such intention, and Evotec shall promptly provide, or make available to, the Participant a copy of such amendment. Any such amendment shall be made in a manner that preserves to the maximum extent possible the intended benefits to the Participant. This Section 16(a) does not create an obligation on the part of Evotec to modify this Agreement and does not guarantee that the amounts or benefits owed under the Agreement will not be subject to interest and penalties under Section 409A. |
(b) |
Headings. The headings in this Agreement are inserted for convenience only and shall have no significance in the interpretation of this Agreement. |
(c) |
Entire Agreement. This Agreement, Annex A, which is attached hereto and shall be deemed to be a part of this Agreement, the Plan, and any and all other attachments hereto, contain the entire agreement between the parties with respect to the transactions contemplated hereunder and supersede any prior arrangements or understandings with respect thereto, written or oral. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either party which are not set forth expressly in this Agreement, including the Plan, and any and all attachments hereto. |
(d) |
Successors and Assigns. Evotec may assign any of its rights under this Agreement. This Agreement will be binding upon and inure to the benefit of the |
5
EVOTEC US RSU PLAN AWARD AGREEMENT
successors and assigns of Evotec. Subject to the restrictions on transfer set forth herein, this Agreement will be binding upon the Participant and the Participant’s beneficiaries, executors, administrators and the person(s) to whom the Units may be transferred by will or the laws of descent and distribution.
(e) |
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, United States of America, without regard to the conflicts of law principles of any jurisdiction, except to the extent federal law may be applicable. |
(f) |
CONSENT TO JURISDICTION. BY ACCEPTING THIS AWARD, THE PARTICIPANT EXPRESSLY AND IRREVOCABLY AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN WILMINGTON, DELAWARE, UNITED STATES OF AMERICA IN RESPECT OF ANY MATTER HEREUNDER. This includes any action or proceeding to compel arbitration or to enforce an arbitration award. |
(g) |
Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by the Participant or Evotec to the Management Board for review. The resolution of such dispute by the Management Board shall be final and binding on the Participant and Evotec. |
(h) |
No Right to Future Grants. The grant of the Units is voluntary and does not create any contractual or other right to receive future grants of Units, or benefits in lieu of Units, even if Units have been granted repeatedly in the past. All decisions with respect to future grants, if any, will be at the sole discretion of the Management Board. The Units are not part of normal or expected compensation or salary for any purposes, including, but not limited to, calculating any severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments. The future value of the underlying Shares is unknown and cannot be predicted with certainty. No claim or entitlement to compensation or damages arises from forfeiture or termination of the Units or diminution in value of the Units or the underlying Shares or Cash Amount and the Participant irrevocably releases the Management Board, Evotec and/or its Subsidiaries (and their respective directors and officers) from any such claim that may arise. The Plan is established voluntarily by Evotec, it is discretionary in nature and it may be modified, suspended or terminated by Evotec at any time, as provided in the Plan. The Participant’s participation in the Plan is voluntary. Any amendment, modification, or termination of the Plan shall not constitute a change or impairment of the terms and conditions of the Participant’s employment with the Company and/or its Subsidiaries. |
(i) |
Insider Trading; Market Abuse Laws; Capital Markets Laws. By participating in the Plan, the Participant agrees to comply with Evotec’s policy on insider trading |
6
EVOTEC US RSU PLAN AWARD AGREEMENT
(to the extent that it is applicable to the Participant). The Participant further acknowledges that, depending on the Participant’s or his or her broker’s country of residence or where the Shares are listed, the Participant may be subject to insider trading restrictions and/or market abuse laws that may affect the Participant’s ability to accept, acquire, sell or otherwise dispose of Shares, rights to Shares (e.g., Units) or rights linked to the value of Shares, during such times the Participant is considered to have “inside information” regarding Evotec as defined by the laws or regulations in the Participant’s country. Local insider trading laws and regulations may prohibit the cancellation or amendment of orders the Participant places before he or she possessed inside information. Furthermore, the Participant could be prohibited from (i) disclosing the inside information to any third party (other than on a “need to know” basis) and (ii) “tipping” third parties or causing them otherwise to buy or sell securities. The Participant understands that third parties include fellow employees. The Participant further acknowledges that the Participant may be subject to insider trading restrictions and/or market abuse laws and further capital markets law restrictions and obligations applicable in the Federal Republic of Germany. Any restriction under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. The Participant acknowledges that it is the Participant’s responsibility to comply with any applicable restrictions, and that the Participant should therefore consult the Participant’s personal advisor on this matter.
(j) |
Severability. If any clause, or portion of a clause, in this Agreement is considered invalid under an applicable rule of law, it shall be regarded as stricken while the remainder of this Agreement shall continue to be in full effect. |
(k) |
Appendix. Notwithstanding any provision in this Agreement, the Units shall be subject to any special terms and conditions set forth in any appendix to this Agreement for the Participant’s country. Moreover, if the Participant relocates to one of the countries included in the appendix, the special terms and conditions for such country will apply to the Participant, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal and administrative reasons. Any appendix will constitute part of this Agreement. |
(l) |
Employee Data Privacy. Pursuant to applicable Personal Data (defined below) protection laws, the Company and, if different, the Participant’s employer hereby notify the Participant of the following in relation to Personal Data and the collection, processing and transfer in electronic or other form of such Personal Data in relation to the grant of Units and participation in the Plan. The collection, processing and transfer of Personal Data is necessary for the legitimate purpose of the Company’s and the Participant’s employer’s administration of the Plan and the Participant’s participation in the Plan, and the Participant’s denial and/or objection to the collection, processing and transfer of Personal Data may affect his or her participation in the Plan. The Participant voluntarily acknowledges the |
7
EVOTEC US RSU PLAN AWARD AGREEMENT
collection, use, processing and transfer of Personal Data as described herein.
The Company and the Participant’s employer hold certain personally identifiable information about the Participant, including specifically name, home address, e-mail address and telephone number, date of birth, social insurance number, passport number or other identification number, salary, nationality, job title, any Units or any other entitlement to shares awarded, vested, unvested or outstanding in the Participant’s favor, for the purpose of managing and administering the Plan (“Personal Data”). The Personal Data may be provided by the Participant or collected, where lawful, from third parties, and the Company and the Participant’s employer each act as controller of the Personal Data and will process the Personal Data in this context for the exclusive legitimate purpose of implementing, administering and managing participation in the Plan and meeting related legal obligations associated with these actions.
The Data processing will take place through electronic and non-electronic means according to logics and procedures correlated to the purposes for which the Personal Data was collected and with confidentiality and security provisions as set forth by applicable laws and regulations. Personal Data will be accessible within the Company’s organization only by those persons requiring access for purposes of the implementation, administration and operation of the Plan and other aspects of the employment relationship and for participation in the Plan.
The Company and the Participant’s employer will transfer Personal Data amongst themselves as necessary for the purpose of implementation, administration and management of participation in the Plan, and the Company and the employer may each further transfer Personal Data to any third parties assisting the Company or the employer in the implementation, administration and management of the Plan. These recipients may be located in the European Economic Area, or elsewhere throughout the world, such as the United States. By accepting this Award, the Participant understands that these recipients may receive, possess, use, retain and transfer the Personal Data, in electronic or other form, for purposes of implementing, administering and managing participation in the Plan, including any requisite transfer of such Personal Data as may be required for the administration of the Plan and/or the subsequent holding of shares on my behalf to a broker or other third party with whom the Participant may elect to deposit any shares acquired pursuant to the Plan. When transferring Personal Data to these potential recipients, the Company and the Participant’s employer provide appropriate safeguards in accordance with the European Union Standard Contractual Clauses, the EU-U.S. Privacy Shield Framework, or other legally binding and permissible arrangements. The Participant understands that he/she may, at any time, request a list with the names and addresses of any potential recipients of the Personal Data, view Personal Data, request additional information about the storage and processing of Personal Data, and require any necessary amendments to Personal Data, by using the means indicated in the general Company’s Employee privacy notice.
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EVOTEC US RSU PLAN AWARD AGREEMENT
To the extent provided by law, the Participant may, at any time, have the right to request: access to Personal Data, rectification of Personal Data, erasure of Personal Data, restriction of processing of Personal Data, and portability of Personal Data. The Participant may also have the right to object, on grounds related to a particular situation, to the processing of Personal Data, as well as opt-out of the Plan herein, in any case without cost, by contacting in writing the Company’s Human Resources Department. The provision of Personal Data is a contractual requirement. The Participant understands, however, that the only consequence of refusing to provide Personal Data is that the Company and the Participant’s employer may not be able to grant Units or other equity awards or administer or maintain such awards. For more information on the consequences of a refusal to provide Personal Data, the Participant understands that he or she may contact the Company’s Human Resources Department.
When the Company and the Participant’s employer no longer need to use Personal Data for the purposes above or do not need to retain it for compliance with any legal or regulatory purpose, each will take reasonable steps to remove Personal Data from its systems and/or records containing the Personal Data and/or take steps to properly anonymize it so that the Participant can no longer be identified from it.
14. |
Electronic Delivery. Evotec may, in its sole discretion, deliver any documents related to the Units awarded under this Agreement or the Plan by electronic means or request the Participant’s consent to participate in the administration of this Agreement and the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by Evotec or another third party designated by Evotec. |
15. |
Acknowledgments. By accepting this Agreement, the Participant hereby acknowledges that he/she has received and reviewed a copy of the following documents: |
a. |
The Annex A outlining the number of each Awards per grant and the then applicable design criteria |
b. |
The Plan terms |
The Participant acknowledges that there may be tax consequences upon the vesting or settlement of the Units or disposition of the underlying Shares or Cash Amount and that the Participant has been advised to consult a tax advisor prior to such vesting, settlement or disposition.
16. |
Electronic Signature. The Participant acknowledges and agrees that by signing this Agreement with an electronic or written signature this will constitute the Participant’s acceptance of and agreement with all of the terms and conditions of the Units, as set forth in the Agreement, Annex A and the Plan. |
(Signature page follows)
9
EVOTEC US RSU PLAN AWARD AGREEMENT
IN WITNESS WHEREOF, this Agreement has been executed by Evotec effective as of the date first above written. The Participant’s signature constitutes the Participant’s acceptance of this Agreement and its terms.
EVOTEC SE.
The Participant hereby confirms the Participant’s agreement with the Plan terms and this Agreement
, |
|
|
Name, Date |
|
Signature |
10
EVOTEC US RSU PLAN AWARD AGREEMENT
Annex A
VESTING OF RESTRICTED SHARE UNITS AWARD
Pursuant to the Plan and subject to the terms and conditions of the Agreement and the Plan, Evotec hereby grants to the Participant an Award of [ ] Units.
Except as otherwise provided in Section 3 of the Agreement, the following conditions must be achieved for vesting of the Award (or any portion thereof):
1. |
The Participant’s continuous active employment with the Company |
The Units granted pursuant to this Agreement will vest in six (6) equal installments on each of the following dates (each is a “Vesting Period”):
| ● | June 15, 2024 |
| ● | December 15, 2024 |
| ● | June 15, 2025 |
| ● | December 15, 2025 |
| ● | June 15, 2026 |
| ● | December 15, 2026 |
To the extent the foregoing continuous employment criteria conditions are not achieved, the Units shall not be earned, vested, or payable under this Agreement.
11
EVOTEC US RSU PLAN AWARD AGREEMENT
SCHEDULE 1
EVOTEC ENTITIES WORLDWIDE
Germany
Göttingen
Evotec International GmbH
Manfred Eigen Campus
Marie-Curie-Straße 7
37079 Göttingen
Germany
T +49.551.50558-0
Halle
Evotec DS Germany GmbH
Kantstraße 2
33790 Halle (Westfalen)
Germany
T +49.5201.6613-0
Hamburg
Evotec SE
Manfred Eigen Campus
Essener Bogen 7
22419 Hamburg
Germany
T +49.40.56081-0
Evotec International GmbH
Manfred Eigen Campus
Essener Bogen 7
22419 Hamburg
Germany
T +49.40.56081-0
Köln
Evotec International GmbH
Gebäude S20
Nattermannallee 1
50829 Köln
Germany
12
EVOTEC US RSU PLAN AWARD AGREEMENT
T +49.221.998818-0
München
Evotec (München) GmbH
Anna-Sigmund-Straße 5
82061 Neuried
Germany
T +49.89.4524465-0
Austria
Orth an der Donau
Evotec GT GmbH
Uferstrasse 15
2304 Orth an der Donau
Austria
T +43 221.23200
France
Lyon
Evotec ID (Lyon) SAS
40 Avenue Tony Garnier
69007 Lyon
France
T +33.437.668.400
Toulouse
Evotec (France) SAS
Campus Curie
195, route d‘Espagne
31036 Toulouse CEDEX
France
T +33.534.63 22-00
Just-Evotec Biologics EU SAS
Campus Curie
195, route d’Espagne
31036 Toulouse CEDEX
France
T +33.534.653739
13
EVOTEC US RSU PLAN AWARD AGREEMENT
Italy
Modena
Evotec (Modena) Srl
Via Maestri del Lavoro, n.4
41036 Medolla (MO)
Italy
T +39.0535.1876172
Verona
Aptuit (Verona) Srl
Via Alessandro Fleming 4
37135 Verona
Italy
T +39.045.8218111
Singapore
Evotec Asia Pte. Ltd.
70 Shenton Way
#1102
Eon Shenton
Singapore 079118
Singapore
United Kingdom
Abingdon
Evotec (UK) Ltd.
Dorothy Crowfoot Hodgkin Campus
114 Innovation Drive
Milton Park, Abingdon
Oxfordshire OX14 4RZ
United Kingdom
T +44.1235.861561
Aptuit (Oxford) Ltd.
Dorothy Crowfoot Hodgkin Campus
111 Innovation Drive
Milton Park, Abingdon
Oxfordshire OX14 4RZ
United Kingdom
14
EVOTEC US RSU PLAN AWARD AGREEMENT
T +44.1235.433600
Aptuit (Potters Bar) Ltd.
Dorothy Crowfoot Hodgkin Campus
111 Innovation Drive
Milton Park, Abingdon
Oxfordshire OX14 4RZ
United Kingdom
T +44.1235.433600
Nether Alderley
Evotec (UK) Ltd.
No. 23F Mereside
Alderley Park
Nether Alderley
Cheshire, SK10 4TG
United Kingdom
T +44.161.8203620
Cyprotex Discovery Ltd.
No. 24 Mereside
Alderley Park
Nether Alderley
Cheshire, SK10 4TG
United Kingdom
T +44.1625.5051-00
USA
Branford
Evotec (US) Inc.
33 Business Park Drive #6
Branford, CT 06405
USA
T +1.650.2281400
Princeton
Evotec (US) Inc.
303B College Road East
Princeton, NJ 08540
USA
T +1.732.3292355
15
EVOTEC US RSU PLAN AWARD AGREEMENT
Redmond
Just-Evotec Biologics, Inc.
22857 NE Marketplace Drive
Redmond, WA 98053
USA
T +1.206.6515094
Seattle
Just-Evotec Biologics, Inc.
401 Terry Avenue North
Seattle, WA 98109
USA
T +1.206.6515094
Framingham
Cyprotex US, LLC
200 Staples Drive
Framingham, MA 01702
USA
T +1.888.297-7683
16
Exhibit 4.17
EXECUTION VERSION
30 July 2024
EVOTEC SE
(as the Company)
EVOTEC SE
(as Original Borrower and as Original Guarantor)
COMMERZBANK AKTIENGESELLSCHAFT
GOLDMAN SACHS LENDING PARTNERS LLC
HSBC CONTINENTAL EUROPE S.A., GERMANY
MORGAN STANLEY BANK AG
UNICREDIT BANK GMBH
(as Coordinating Bookrunners and Mandated Lead Arrangers)
BNP PARIBAS S.A. NIEDERLASSUNG DEUTSCHLAND
LANDESBANK BADEN-WÜRTTEMBERG
(as Mandated Lead Arrangers)
HSBC CONTINENTAL EUROPE S.A., GERMANY
(as Agent)
COMMERZBANK AKTIENGESELLSCHAFT
(as Security Agent)
EUR 250,000,000 SENIOR REVOLVING FACILITY AGREEMENT
CONTENTS | |||
| |||
CLAUSE |
PAGE |
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||
SECTION 1 INTERPRETATION |
2 |
||
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1. |
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Definitions and Interpretation |
2 |
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SECTION 2 THE FACILITY |
44 |
||
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2. |
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The Facility |
44 |
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3. |
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Extension Option |
53 |
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4. |
|
Purpose |
58 |
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5. |
|
Conditions of Utilisation |
58 |
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SECTION 3 UTILISATION |
60 |
||
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6. |
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Utilisation |
60 |
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7. |
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Ancillary Facilities |
61 |
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|
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SECTION 4 REPAYMENT, PREPAYMENT AND CANCELLATION |
71 |
||
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8. |
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Repayment |
71 |
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9. |
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Prepayment and Cancellation |
72 |
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SECTION 5 COSTS OF UTILISATION |
79 |
||
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10. |
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Interest |
79 |
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11. |
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Interest Periods |
83 |
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12. |
|
Changes to the Calculation of Interest |
84 |
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13. |
|
Fees |
86 |
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SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS |
88 |
||
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14. |
|
Tax Gross Up and Indemnities |
88 |
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15. |
|
Increased Costs |
97 |
|
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16. |
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Other Indemnities |
100 |
|
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17. |
|
Mitigation by the Lenders |
101 |
|
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18. |
|
Costs and Expenses |
102 |
|
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|
SECTION 8 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT |
104 |
||
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19. |
|
Representations |
104 |
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20. |
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Information Undertakings |
110 |
|
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|
21. |
|
Financial Covenant |
117 |
|
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22. |
|
General Undertakings |
121 |
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23. |
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Events of Default |
135 |
|
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SECTION 9 CHANGES TO PARTIES |
143 |
||
-i-
24. |
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Changes to the Lenders |
143 |
|
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25. |
|
Changes to the Obligors |
151 |
|
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SECTION 10 THE FINANCE PARTIES |
154 |
||
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26. |
|
Role of the Agent and the Arrangers |
154 |
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27. |
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Conduct of Business by the Finance Parties |
166 |
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28. |
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Sharing among the Finance Parties |
167 |
|
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SECTION 11 ADMINISTRATION |
169 |
||
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29. |
|
Payment Mechanics |
169 |
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30. |
|
Set-Off |
173 |
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31. |
|
Notices |
174 |
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32. |
|
Calculations and Certificates |
177 |
|
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33. |
|
Partial Invalidity |
178 |
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34. |
|
Remedies and Waivers |
178 |
|
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35. |
|
Amendments and Waivers |
179 |
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36. |
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Confidential Information |
184 |
|
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37. |
|
Confidentiality of Funding Rates |
189 |
|
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38. |
|
Borrowing for own Benefit |
191 |
|
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SECTION 12 GOVERNING LAW AND ENFORCEMENT |
192 |
||
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39. |
|
Governing Law |
192 |
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40. |
|
Enforcement |
192 |
|
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41. |
|
Contractual recognition of bail-in |
193 |
|
|
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42. |
|
Acknowledgement Regarding Any Supported QFCs |
196 |
|
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43. |
|
Conclusion Of This Agreement (Vertragsschluss) |
197 |
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44. |
|
Italian Transparency Provisions |
198 |
|
|
|
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Schedule 1 The Original Lenders |
199 |
||
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Schedule 2 Conditions Precedent |
204 |
||
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Schedule 3 Requests |
211 |
||
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Schedule 4 Form of Transfer Certificate |
216 |
||
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Schedule 5 Form of Accession Letter |
219 |
||
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Schedule 6 Form of Resignation Letter |
220 |
||
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Schedule 7 Form of Compliance Certificate |
221 |
||
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Schedule 8 Form of Confidentiality Undertaking |
223 |
||
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Schedule 9 Timetables |
229 |
||
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Schedule 10 Form of Increase Confirmation |
230 |
||
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Schedule 11 Form of Accordion Increase Confirmation |
233 |
||
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||
Schedule 12 Form of Process Agent Appointment Letter |
236 |
||
|
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|
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Schedule 13 Form of Maximum Amount Guarantee |
237 |
||
-ii-
THIS AGREEMENT is dated 30 July 2024 and made
BETWEEN:
(1) |
EVOTEC SE, a European stock corporation (Societas Europaea), having its registered address at Essener Bogen 7, 22419 Hamburg, Germany, and registered with the commercial register (Handelsregister) kept with the local court (Amtsgericht) of Hamburg under number HRB 156381 as company (the Company), original borrower (the Original Borrower) and original guarantor (the Original Guarantor); |
(2) |
COMMERZBANK AKTIENGESELLSCHAFT, GOLDMAN SACHS LENDING PARTNERS LLC, HSBC CONTINENTAL EUROPE S.A., GERMANY, MORGAN STANLEY BANK AG and UNICREDIT BANK GMBH as coordinating bookrunners and mandated lead arrangers (the Coordinators); |
(3) |
BNP PARIBAS S.A. NIEDERLASSUNG DEUTSCHLAND and LANDESBANK BADEN-WÜRTTEMBERG as mandated lead arrangers (together with the Coordinators and whether acting individually or together the Arrangers); |
(4) |
THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders) as lenders (the Original Lenders); |
(5) |
HSBC CONTINENTAL EUROPE S.A., GERMANY as facility agent of the other Finance Parties (the Agent); and |
(6) |
COMMERZBANK AKTIENGESELLSCHAFT as security agent (the Security Agent). |
IT IS AGREED as follows:
1
SECTION 1
INTERPRETATION
1.DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
Accelerated Default means an Event of Default in relation to which the Agent has delivered a notice pursuant to paragraph (i)(A), (B) or (C) of Clause 23.17 (Acceleration);
Acceptable Bank means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of at least BBB, Baa2 or equivalent from at least two Rating Agencies;
Accession Letter means a document substantially in the form set out in Schedule 5 (Form of Accession Letter);
Accordion Increase Amount means the amount of any increase to the Commitment requested by the Company in an Accordion Increase Request;
Accordion Increase Confirmation means a document substantially in the form set out in Schedule 11 (Form of Accordion Increase Confirmation);
Accordion Increase Date has the meaning given to that term in Clause 2.3 (Increase – Accordion Option);
Accordion Increase Date 1 has the meaning given to that term in Clause 2.3 (Increase – Accordion Option);
Accordion Increase Date 2 has the meaning given to that term in Clause 2.3 (Increase – Accordion Option);
Accordion Increase Lender has the meaning given to that term in Clause 2.3 (Increase – Accordion Option);
Accordion Increase Request means a document substantially in the form set out in Part C (Accordion Increase Request) of Schedule 3 (Requests);
Accordion Initial Allocation has the meaning given to that term in Clause 2.3 (Increase – Accordion Option);
Accordion Initial Increase Amount has the meaning given to that term in Clause 2.3 (Increase – Accordion Option);
Additional Adjustments has the meaning given to it in Clause 7.8 (Allocation of Maximum Amount Guarantee).
2
Additional Borrower means a company which becomes an Additional Borrower in accordance with Clause 25 (Changes to the Obligors);
Additional Guarantor means a company which becomes an Additional Guarantor in accordance with Clause 25 (Changes to the Obligors) and the provisions of the Guarantee and Security Trust Agreement;
Additional Obligor means an Additional Borrower or an Additional Guarantor;
Adjusted EBITDA has the meaning given to that term in Clause 21.1 (Definitions and interpretation);
Advance means any cash or proceeds received by any member of the Group by any Lender.
Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company;
Agent’s Spot Rate of Exchange means:
(a) |
the Agent’s spot rate of exchange; or |
(b) |
(if the Agent does not have an available spot rate of exchange) any other publicly available spot rate of exchange selected by the Agent (acting reasonably), |
for the purchase of the relevant currency with the Base Currency in the European foreign exchange market at or about 11:00 a.m. (Frankfurt am Main time) on a particular day.
Agreed Security Principles has the meaning given to such term in the Guarantee and Security Trust Agreement;
Ancillary Commencement Date means, in relation to an Ancillary Facility, the date on which that Ancillary Facility is first made available, which date shall be a Business Day within the Availability Period for the Facility;
Ancillary Commitment means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount which that Ancillary Lender has agreed (whether or not subject to satisfaction of conditions precedent) to make available from time to time under an Ancillary Facility and which has been authorised as such under Clause 7 (Ancillary Facilities), to the extent that amount is not cancelled or reduced under this Agreement or the Ancillary Documents relating to that Ancillary Facility;
Ancillary Document means each document relating to or evidencing the terms of an Ancillary Facility; Ancillary Facility means any ancillary facility made available by an Ancillary Lender in accordance with Clause 7 (Ancillary Facilities);
3
Ancillary Lender means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 7 (Ancillary Facilities);
Ancillary Outstandings means, at any time, in relation to an Ancillary Lender and an Ancillary Facility then in force the aggregate of the equivalents (as calculated by that Ancillary Lender) in the Base Currency of the following amounts outstanding under that Ancillary Facility:
(a) |
the principal amount under each overdraft facility and on demand short term loan facility (net of any Available Credit Balances); |
(b) |
the face amount of each guarantee, bond and letter of credit under that Ancillary Facility including the face amount of any Maximum Amount Guarantee; and |
(c) |
the amount fairly representing the aggregate exposure (excluding interest and similar charges) of that Ancillary Lender under each other type of accommodation provided under that Ancillary Facility, |
in each case as determined by such Ancillary Lender, acting reasonably in accordance with its normal banking practice and in accordance with the relevant Ancillary Document.
Anti-Bribery and Corruption Laws means all anti-bribery and corruption laws and regulations including but not limited to the US Foreign and Corrupt Practices Act 1977 and the United Kingdom Bribery Act 2010, in each case if and to the extent applicable to an Obligor or Material Subsidiary;
Anti-Money Laundering Laws means the German Money Laundering Act (Geldwäschegesetz), the US Money Laundering Control Act of 1986 and all other anti-money laundering, related or similar laws, rules or regulations issued, administered or enforced by the US, the United Kingdom, the European Union or any of its member states, or any other country or governmental agency having jurisdiction over any Obligor or any Material Subsidiary, in each case if and to the extent applicable to an Obligor or a Material Subsidiary;
Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration;
Availability Period means the period from and including the date of this Agreement to and including the date falling one (1) month prior to the Termination Date; Available Commitment means a Lender’s Commitment minus (subject as set out below):
4
(a) |
the Base Currency Amount of its participation in any outstanding Loans and the Base Currency Amount of the aggregate of its (and its Affiliate’s) Ancillary Commitments; and |
(b) |
in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date and the Base Currency Amount of its (and its Affiliate’s) Ancillary Commitments in relation to any new Ancillary Facility that is due to be made available on or before the proposed Utilisation Date, |
provided that for the purposes of calculating a Lender’s Available Commitment in relation to any proposed Utilisation, the following amounts shall not be deducted from that Lender’s Commitment:
(i) |
that Lender’s participation in any Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date; and |
(ii) |
that Lender’s (and its Affiliate’s) Ancillary Commitments to the extent that they are due to be reduced or cancelled on or before the proposed Utilisation Date. |
Available Credit Balance means in relation to an Ancillary Facility, credit balances on any account of any Borrower of that Ancillary Facility with the Ancillary Lender making available that Ancillary Facility to the extent that those credit balances are freely available to be set off by that Ancillary Lender against liabilities owed to it by that Borrower under that Ancillary Facility;
Available Facility means the aggregate for the time being of each Lender’s Available Commitment;
Base Currency means EUR.
Base Currency Amount means:
(a) |
in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan; and |
(b) |
in relation to an Ancillary Commitment, the amount specified as such in the notice delivered to the Agent by the Company pursuant to Clause 7.2 (Availability) (or, if the amount specified is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three Business Days before the Ancillary Commencement Date for that Ancillary Facility or, if later, |
5
the date the Agent receives the notice of the Ancillary Commitment in accordance with the terms of this Agreement),
as adjusted to reflect any repayment, prepayment, consolidation or division of a Loan, or (as the case may be) cancellation or reduction of an Ancillary Facility.
Board means the Board of Governors of the Federal Reserve System of the US;
Borrower means the Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 25 (Changes to the Obligors) and, in respect of an Ancillary Facility only, any Affiliate of a Borrower that becomes a borrower of that Ancillary Facility with the approval of the relevant Lender pursuant to the provisions of Clause 7.11 (Affiliates of Borrowers);
Break Costs means, in respect of a Loan, the amount (if any) by which:
| (a) | the interest (excluding the Margin and utilisation fee pursuant to Clause 13.5 (Utilisation fee)) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period; |
exceeds:
(b) |
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period; |
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Frankfurt am Main, Hamburg, Duesseldorf, London, Munich and Stuttgart and (in relation to any date for payment or purchase of euro) which is a TARGET Day;
Charged Property means all of the assets of the Obligors which from time to time are, or are expressed to be, the subject of Transaction Security;
Code means the US Internal Revenue Code of 1986;
Commitment means:
(a) |
in relation to an Original Lender, the amount in the Base Currency set out opposite its name under the heading “Commitment (EUR)” in Schedule 1 (The Original Lenders) and the amount of any other Commitment transferred to it under this Agreement or assumed by it in |
6
accordance with Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion Option); and
(b) |
in relation to any other Lender, the amount in the Base Currency of any Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion Option), |
in each case, to the extent not cancelled, reduced or transferred by it under this Agreement;
Commitment Letter means the commitment letter dated 28 June 2024 between among others, the Arrangers and the Company;
Compliance Certificate means a certificate substantially in the form set out in Schedule 7 (Form of Compliance Certificate);
Confidential Information means all information relating to any Obligor, the Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:
(a) |
any member of the Group or any of its advisers; or |
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers, |
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:
(i) |
information that: |
(A) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 36 (Confidential Information); or |
(B) |
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or |
(C) |
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that |
7
Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
(ii) |
any Funding Rate; |
Confidentiality Undertaking means a confidentiality undertaking substantially in the form set out in Schedule 8 (Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Agent;
Default means an Event of Default or any event or circumstance specified in Clause 23 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default;
Defaulting Lender means any Lender:
(a) |
which has failed to make its participation in a Loan available (or has notified the Agent or the Company (which has notified the Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 6.4 (Lenders’ participation); |
(b) |
which has otherwise rescinded or repudiated a Finance Document; or |
(c) |
with respect to which an Insolvency Event has occurred and is continuing, |
unless, in the case of paragraph (a) above:
(i) |
its failure to pay is caused by: |
(A)administrative or technical error; or
(B)a Disruption Event; and
payment is made within five (5) Business Days of its due date; or
(ii) |
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question; |
Delegate means any delegate, agent, attorney or co-trustee appointed by the Security Agent.
Designated Gross Amount means the amount notified by the Company to the Agent upon the establishment of a Multi-account Overdraft as being the maximum amount of Gross Outstandings that will, at any time, be outstanding under that Multi-account Overdraft;
8
Designated Net Amount means the amount notified by the Company to the Agent upon the establishment of a Multi-account Overdraft as being the maximum amount of Net Outstandings that will, at any time, be outstanding under that Multi-account Overdraft;
Disruption Event means either or both of:
(a) |
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or |
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party: |
(i) |
from performing its payment obligations under the Finance Documents; or |
(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents, |
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted;
Eligible Institution means:
(a) |
at any time an Event of Default is continuing: a bank or any regulated financial institution that is licensed or otherwise legally entitled to conduct lending business in Germany under applicable German banking supervisory laws or an insurer or re-insurer; |
(b) |
at any time a Material Event of Default is continuing: a bank, any regulated financial institution, a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets or an insurer or re-insurer; |
9
(c) |
at any other time: |
(i) |
a bank or any regulated financial institution that: |
(A) |
has a long-term credit rating equal to or better than BBB- or Baa3 (as applicable) according to at least two Rating Agencies; and |
(B) |
is licensed or otherwise legally entitled to conduct lending business in Germany under applicable German banking supervisory laws; and |
(ii) |
in addition, in case of sub-participations only: an insurer or re-insurer; and |
(d) |
(except for the purposes of paragraph (e) of Clause 9.5) with the prior consent of the Company: any other person. |
ERISA means the US Employee Retirement Income Security Act of 1974, and any successor statute, and all regulations promulgated thereunder;
ERISA Affiliate means any trade or business (whether or not incorporated) that, together with any member of the Group, is treated as a single employer at any relevant time under Section 414(b) or (c) of the Code or Section 4001(b) of ERISA (or, solely for the purposes of any requirement of or provision under the Code, Section 414(m) and (o) of the Code);
ERISA Event means:
(a) |
any “reportable event”, as defined in Section 4043(c) of ERISA with respect to a Pension Plan (other than an event for which the 30 day notice period is waived); |
(b) |
the occurrence of a prohibited transaction with respect to a Pension Plan within the meaning of Section 406 of ERISA or Section 4975 of the Code for which an exemption is not available; |
(c) |
with respect to any Pension Plan, the failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether or not waived; |
(d) |
the filing of an application pursuant to Section 412(c) of the Code or Section 302 of ERISA for a waiver of the minimum funding standard with respect to any Pension Plan; |
(e) |
the withdrawal from a Pension Plan by a member of the Group or ERISA Affiliate that is a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) subject to Section 4063 of ERISA or a |
10
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA;
(f) |
the filing of a notice of intent to terminate a Pension Plan under Section 4041 of ERISA or the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; |
(g) |
the commencement of proceedings by the PBGC to terminate or appoint a trustee to administer a Pension Plan, or an event or condition which could reasonably be expected to constitute grounds for the termination of or the appointment of a trustee to administer a Pension Plan, under Section 4042 of ERISA; |
(h) |
a complete or partial withdrawal by any member of the Group or ERISA Affiliate under Sections 4203 or 4205 of ERISA from a Multiemployer Plan, or the failure to make any required contribution to a Multiemployer Plan; |
(i) |
a determination that a Multiemployer Plan is or is expected to be “insolvent” (within the meaning of Section 4245 of ERISA), or “at-risk” or in “endangered” or “critical” status (within the meaning of Sections 430, 431 or 432 of the Code or Sections 303, 304 or 305 of ERISA); |
(j) |
the receipt by any member of the Group or any of its ERISA Affiliate of any written notice of the imposition of withdrawal liability; |
(k) |
the imposition of a lien under Section 303(k)(1)(A) of ERISA with respect to any Pension Plan; or |
(l) |
the occurrence of any event or condition that results in or could reasonably be expected to result in the imposition of any liability under Title IV of ERISA upon any member of the Group or any of its ERISA Affiliates, other than PBGC premiums due but not delinquent under Section 4007 of Title IV of ERISA; |
EURIBOR means, in relation to any Loan in euro:
(a) |
the applicable Screen Rate as of the Specified Time for euro and for a period equal in length to the Interest Period of that Loan; or |
(b) |
as otherwise determined pursuant to Clause 12.1 (Unavailability of Screen Rate), |
and if, in either case, that rate is less than zero, EURIBOR shall be deemed to be zero; Event of Default means any event or circumstance specified as such in Clause 23 (Events of Default);
11
Excluded Jurisdiction means Peoples’ Republic of China, India and Russia.
Excluded Subsidiary means a member of the Group:
(a) |
for which becoming a Guarantor is not within the legal capacity of the relevant member of the Group, unlawful or contrary to a mandatory regulation requirement; |
(b) |
for which becoming a Guarantor, or that guarantee being enforced, would result in a reasonably likely risk of personal or criminal liability for or breach of fiduciary duties of that person’s directors or other management that cannot be mitigated by a market standard limitation language (other than risks regularly associated with the functions of a director or manager); or |
(c) |
which is incorporated in an Excluded Jurisdiction. |
Extension Request means a request for the extension of the Termination Date in respect of the Facility pursuant to Clause 3 (Extension Option), substantially in the form of Part B (Extension Request) of Schedule 3 (Requests);
Facility means the revolving credit facility made available under this Agreement as described in paragraph (a) of Clause 2.1 (The Facility);
Facility Office means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five (5) Business Days’ written notice) as the office or offices and/or entity/ies through which it will perform (all or certain of) its obligations under this Agreement;
FATCA means:
(a) |
sections 1471 to 1474 of the Code or any associated regulations; |
(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or |
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction; |
12
FATCA Application Date means:
(a) |
in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or |
(b) |
in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (a) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA; |
FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA;
FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction;
Fee Letter means:
(a) |
any letter or letters dated on or about the date of this Agreement between the Arrangers, the Original Lenders and/or the Company (or the Agent and the Company or the Security Agent and the Company) setting out any of the fees referred to in Clause 13 (Fees); and |
(b) |
any agreement setting out fees payable to a Finance Party referred to in paragraph (f) of Clause 2.2 (Increase) paragraph (n) of Clause 2.3 (Increase – Accordion Option) or Clause 13.4 (Interest, commission and fees on Ancillary Facilities) of this Agreement or under any other Finance Document; |
Finance Document means this Agreement, the Commitment Letter, the Guarantee and Security Trust Agreement, any Accession Letter, any Guarantor Accession Letter, any Ancillary Document, any Maximum Amount Guarantee, any Compliance Certificate, any Extension Request, any Accordion Increase Request, any Accordion Increase Confirmation, any Transaction Security Document, any Fee Letter, any Increase Confirmation, any Resignation Letter, any Utilisation Request, and any other document designated as such by the Agent and the Company;
Finance Lease means any lease or hire purchase contract which would, in accordance with IFRS in force prior to 1 January 2019, be treated as finance or capital lease.
Finance Party means the Agent, the Security Agent, the Arrangers, a Lender or an Ancillary Lender; Financial Indebtedness means any indebtedness for or in respect of:
13
(a) |
moneys borrowed and debit balances at banks or other financial institutions; |
(b) |
any amount raised by acceptance under any acceptance credit facility (including any dematerialised equivalent); |
(c) |
any amount raised pursuant to any note purchase facility or the issue of bonds (other than performance bonds), promissory notes (Schuldscheindarlehen), notes, commercial papers, debentures, loan stock or any similar instrument; |
(d) |
the amount of any liability of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability; |
(e) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); |
(f) |
any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close out of that derivative transaction, that amount) will be taken into account); |
(g) |
any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing and treated as a borrowing in accordance with applicable GAAP; |
(h) |
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of an underlying obligation which falls within one of the other paragraphs of this definition; and |
(i) |
the amount of any liability in respect of any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in paragraphs (a) to (h) above; |
First Anniversary means the first anniversary of the date of this Agreement;
First Anniversary Extending Lender has the meaning given to that term in Clause 3.1 (Extension Prior to the First Anniversary);
First Anniversary Extension Request has the meaning given to that term in Clause 3.1 (Extension Prior to the First Anniversary); First Anniversary Non-Extending Lender has the meaning given to that term in Clause 3.1 (Extension Prior to the First Anniversary);
14
First Extension Date means the date falling one year after the Initial Termination Date;
France means the Republic of France;
French Civil Code means the French Code civil;
French Commercial Code means the French Code de commerce;
French Guarantor means a Guarantor incorporated in France;
French Monetary Code means the French Code monétaire et financier.
French Non-Cooperative Jurisdiction means a non-cooperative State or territory (Etat ou territoire non coopératif) as set out in the list referred to in article 238-0 A of the French Tax Code, as the list may be amended from time to time;
French Tax Code means the French Code général des impôts;
Funding Rate means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 12.3 (Cost of funds);
GAAP means:
(a) |
in relation to the Company, the Original Borrower and any other Obligor incorporated or established in Germany, the generally accepted accounting principles in Germany (including IFRS); and |
(b) |
in relation to the financial statements of any other Obligor, the generally accepted accounting principles in its jurisdiction of incorporation; |
Gross Outstandings means, in relation to a Multi-account Overdraft, the Ancillary Outstandings of that Multi-account Overdraft but calculated on the basis that the words “(net of any Available Credit Balance)” in paragraph (a) of the definition of “Ancillary Outstandings” were deleted;
Group means the Company and its Subsidiaries from time to time;
Guarantee Amount Limit means an amount equal to 3 per cent. of the consolidated total assets of the Group (Bilanzsumme) (determined by reference to the most recent consolidated annual financial statements delivered);
Guarantee and Security Trust Agreement means the guarantee and security trust agreement dated on or about the date hereof between, amongst others, the Company as company, original borrower and original guarantor, the Arrangers as SFA arrangers, the Agent as facility agent, the Security Agent as security agent, the Original Lenders as current SFA lenders and IKB Deutsche Industriebank AG;
15
Guarantor means the Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 25 (Changes to the Obligors) and the provisions of the Guarantee and Security Trust Agreement;
Guarantor Accession Letter means a document substantially in the form set out in schedule 1 (Form of Guarantor Accession Letter) of the Guarantee and Security Trust Agreement;
Historic Screen Rate means, in relation to any Loan, the most recent applicable Screen Rate for the currency of that Loan and for a period equal in length to the Interest Period of that Loan and which is as of a day which is no more than 5 (five) days before the Quotation Day;
Holding Company means, in relation to a person, any other person in respect of which it is a Subsidiary;
IFRS means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements;
IKB Loan Agreements means:
(a) |
EUR 4,115,000 loan agreement dated 19/25 March 2019 (as amended and restated from time to time and most recently by an amendment agreement dated 19/30 April 2024) between, the Company as borrower and IKB Deutsche Industriebank AG as lender; |
(b) |
EUR 2,700,000 loan agreement dated 19/25 March 2019 (as amended and restated from time to time and most recently by an amendment agreement dated 19/30 April 2024) between, the Company as borrower and IKB Deutsche Industriebank AG as lender; |
(c) |
EUR 1,789,000 loan agreement dated 2/16 April 2019 (as amended and restated from time to time and most recently by an amendment agreement dated 19/30 April 2024) between, the Company as borrower and IKB Deutsche Industriebank AG as lender; and |
(d) |
EUR 20,367,000 loan agreement dated 1 March 2021 between, the Company as borrower and IKB Deutsche Industriebank AG as lender. |
16
Impaired Agent means the Agent at any time when:
(a) |
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment; |
(b) |
the Agent otherwise rescinds or repudiates a Finance Document; |
(c) |
(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of “Defaulting Lender”; or |
(d) |
an Insolvency Event has occurred and is continuing with respect to the Agent, |
unless, in the case of paragraph (a) above:
(i) |
its failure to pay is caused by: |
(A)administrative or technical error; or
(B)a Disruption Event; and
payment is made within five (5) Business Days of its due date; or
(ii) |
the Agent is disputing in good faith whether it is contractually obliged to make the payment in question; |
Increase Confirmation means a confirmation substantially in the form set out in Schedule 10 (Form of Increase Confirmation);
Increase Lender has the meaning given to that term in Clause 2.2 (Increase);
Industry Competitor means any person or entity (or any of its Affiliates) which is a competitor of a member of the Group or whose business is similar to the business of a member of the Group and any controlling shareholder of such persons, provided that, for the avoidance of doubt, this shall not include any person or entity (or any of its Affiliates) which is a bank, financial institution or trust, fund or other entity whose principal business or a material activity of whom is arranging, underwriting or investing in debt;
Initial Adjustments has the meaning given to it in Clause 7.8 (Allocation of Maximum Amount Guarantee);
Initial Termination Date means the date that is three (3) years from the date of this Agreement; Insolvency Event in relation to a Finance Party means that the Finance Party:
17
(a) |
is dissolved (other than pursuant to a consolidation, amalgamation or merger); |
(b) |
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; |
(c) |
makes a general assignment, arrangement or composition with or for the benefit of its creditors; |
(d) |
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official; |
(e) |
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and: |
(i) |
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or |
(ii) |
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof; |
(f) |
has instituted against it any order or measure according to Sections 45b(1) (other than section 45b(1) sentence 1 No. 1 and 2), 46 (other than section 46(1) sentence 2 No. 1 and 3), 46b or 46g of the German Banking Act (Kreditwesengesetz) or one or more resolution measures pursuant to Sections 62 et seq. of the German Recovery and Resolution Act (Sanierungs- und Abwicklungsgesetz), however, in each case only if the relevant Finance Party’s ability to comply with its obligations under this Agreement is affected thereby; |
(g) |
has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the United Kingdom Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of |
18
the United Kingdom Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the United Kingdom Banking Act 2009;
(h) |
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); |
(i) |
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above); |
(j) |
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case, within thirty (30) days thereafter; |
(k) |
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (j) above; or |
(l) |
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts; |
Intellectual Property means:
(a) |
any patents, trademarks, service marks, designs, business names, copyrights, database rights, design rights, domain names, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests (which may now or in the future subsist), whether registered or unregistered; and |
(b) |
the benefit of all applications and rights to use such assets of each member of the Group (which may now or in the future subsist). |
Interest Period means, in relation to a Loan, each period determined in accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.5 (Default interest and lump sum damages);
Interpolated Historic Screen Rate means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
19
(a) |
the most recent applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and |
(b) |
the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan, |
each for euro and each of which is as of a day which is no more than five (5) days before the Quotation Day.
Interpolated Screen Rate means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
(a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and |
(b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan, |
each as of the Specified Time for euro;
Italian Banking Law means the Italian Legislative Decree No. 385 of 1 September 1993, as subsequently amended and supplemented.
Italian Bankruptcy Law means the Italian Royal Decree No. 267 of 16 March 1942, as subsequently amended, supplemented and implemented from time to time (including by virtue of Decree Law No. 118 of 24 August 2021, as converted into law with amendments and supplemented from time to time).
Italian Borrower means a Borrower which is incorporated or established in Italy.
Italian Civil Code means the Italian civil code (codice civile), enacted by Royal Decree No. 262 of March 16, 1942, as subsequently amended and supplemented.
Italian Crisis and Insolvency Code means the Italian Legislative Decree No. 14 of 12 January 2019 (Codice della crisi d’impresa e dell’insolvenza in attuazione della legge 19 ottobre 2017, n. 155), as amended and supplemented from time to time (including by virtue of the Italian Legislative Decree No. 83 of 17 June 2022 implementing the EU Directive 2019/1023 of 20 June 2019, as supplemented from time to time).
Italian Guarantor means a Guarantor which is incorporated under the laws of the Republic of Italy.
20
Italian Obligor means an Obligor which is incorporated under the laws of the Republic of Italy.
Italian Usury Law means the Italian law of 7 March 1996 No. 108 (Disposizioni in materia di usura), as subsequently amended and supplemented, and any related implementing regulations.
Legal Reservations means:
(a) |
the limitation on enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors and similar principles, rights, defences and limitations under the laws of any applicable jurisdiction (including, for the avoidance of doubt, laws relating to the subordination of claims of direct and indirect shareholders, shareholder affiliates and/or group companies); |
(b) |
the time barring of claims under any applicable limitation laws, the possibility that a court may strike out provisions of a contract as being invalid for reasons of undue influence or similar reasons, defences of set-off or counterclaim and similar principles, rights, defences and limitations under the laws of any applicable jurisdiction; |
(c) |
the principle that an English court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant; and |
(d) |
any other general principles, reservations or qualifications, in each case as to matters of law, as set out in any legal opinion delivered to the Agent under any provision of or otherwise in connection with any Finance Document; |
Lender means:
(a) |
any Original Lender; and |
(b) |
any bank, financial institution, trust, fund or other entity which has become a Party as a “Lender” in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase – Accordion Option) or Clause 24 (Changes to the Lenders), |
which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement;
Leverage has the meaning given to that term in Clause 21.1 (Definitions and interpretation);
LMA means the Loan Market Association; Loan means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan;
21
Local Facility means a bilateral facility made available by any Ancillary Lender through any of its domestic or foreign branches or any of its Affiliates (a Local Lender) to a Subsidiary of the Company (a Local Borrower) under which (i) the Local Lender and/or the Local Borrower will not become a party to this Agreement and (ii) the Company has provided a Maximum Amount Guarantee (Höchstbetragsgarantie) in favour of the relevant Ancillary Lender and the Local Lender for the liabilities of the Local Borrower under or in connection with the Local Facility;
M&A Spike has the meaning given to that term in Clause 21.2 (Financial condition);
Majority Lenders means a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66⅔ per cent. of the Total Commitments immediately prior to the reduction);
Margin means the rate per annum determined in accordance with Clause 10.3 (Initial Margin and Margin adjustment);
Margin Stock means “margin stock” within the meaning of Regulation U of the Board;
Material Adverse Effect means a material adverse effect on:
(a) |
the business, assets or financial condition of the Company and/or the Group taken as a whole which is reasonably likely to materially adversely affect the ability of any Obligor to perform its payment obligations under any of the Finance Documents; or |
(b) |
subject to the Legal Reservations, the validity or enforceability of the Finance Documents or any of them or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to any of the Finance Documents, in each case in a way which is materially adverse to the interests of the Lenders under the Finance Documents taken as a whole and is, if capable of remedy, not remedied within twenty (20) Business Days of the earlier of (i) the Company becoming aware of the effect or (ii) the giving of notice of the effect by the Agent (for the avoidance of doubt, without double-counting any other applicable remedy period); |
Material Acquisition has the meaning given to that term in Clause 21.1 (Definitions and interpretation); Material Default means any Event of Default under Clause 23.1 (Non-payment), Clause 23.6 (Insolvency), Clause 23.7 (Insolvency proceedings), Clause 23.8 (Creditors’ process) or Clause 23.14 (Repudiation);
22
Material Event of Default means an Event of Default set out in Clause 23.1 (Non-payment), Clause 23.2 (Financial covenant) (provided that a breach of the financial covenant set out in Clause 21.2 (Financial condition) shall only constitute a Material Event of Default if it is not complied with on two successive Testing Dates), Clause 23.6 (Insolvency), Clause 23.7 (Insolvency proceedings) or Clause 23.8 (Creditors’ process);
Material Subsidiary means a Subsidiary of the Company whose unconsolidated revenues (Umsatzerlöse) (excluding all intra-Group items and investments in Subsidiaries of any member of the Group) or total assets (Aktivvermögen) represent at least 5 per cent. of consolidated revenues (Umsatzerlöse) or total assets (Aktivvermögen) determined on the basis of the most recent annual Compliance Certificate supplied by the Company and the latest audited financial statements of that Subsidiary (consolidated in the case of a Subsidiary which itself has Subsidiaries) and the latest audited consolidated financial statements of the Group;
Maximum Amount Guarantee means a maximum amount guarantee denominated in the Base Curency and governed by German law substantially in the form set out in Schedule 13 (Form of Maximum Amount Guarantee);
Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
(a) |
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; |
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and |
(c) |
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end. |
The above rules will only apply to the last Month of any period;
Multi-account Overdraft means an Ancillary Facility which is an overdraft facility comprising more than one account;
Multiemployer Plan means a Plan that is a multiemployer plan as defined in Sections 3(37) or 4001(a)(3) of ERISA; Net Outstandings means, in relation to a Multi-account Overdraft, the Ancillary Outstandings of that Multi-account Overdraft;
23
New Extending Lender has the meaning given to that term in Clause 3.3 (General Provisions);
New Lender has the meaning given to that term in Clause 24 (Changes to the Lenders);
Non-Consenting Lender has the meaning given to that term in Clause 35.7 (Non-Consenting Lender);
Non-Extending Lender has the meaning given to that term in Clause 3.3 (General Provisions);
Non-Obligor means a member of the Group which is not an Obligor;
Obligor means a Borrower or a Guarantor;
Obligors’ Agent means the Company, appointed to act on behalf of each Obligor in relation to the Finance Documents pursuant to Clause 2.5 (Obligors’ Agent);
Original Additional Guarantor has the meaning given to that term in paragraph (f) of Clause 22.14 (Guarantors);
Original Financial Statements means the most recent audited consolidated and unconsolidated annual financial statements of each of:
(a) |
the Company and the Original Additional Guarantors (other than Evotec International GmbH and Evotec (UK) Limited) for the financial year which ended on 31 December 2023; and |
(b) |
Evotec International GmbH and Evotec (UK) Limited for the financial year which ended on 31 December 2022). |
Original Guarantor means the Company, qualified as such also in the Guarantee and Security Trust Agreement;
Original Obligor means the Original Borrower or the Original Guarantor;
Participating Member State means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union;
Party means a party to this Agreement;
24
PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions; Pension Plan means a Plan (other than a Multiemployer Plan) that is subject to the provisions of Title IV or Section 302 of ERISA or Section 412 of the Code and that is sponsored or maintained by any member of the Group or ERISA Affiliate or to which any member of the Group or ERISA Affiliate contributes or has an obligation to contribute, or in the case of a plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding six plan years;
Plan means an employee benefit plan (as defined in Section 3(3) of ERISA) which any member of the Group or ERISA Affiliate sponsors, maintains or contributes to or with respect to which any member of the Group or ERISA Affiliate has any liability;
Qualifying Lender has the meaning given to it in Clause 14 (Tax gross-up and indemnities);
Quotation Day means, in relation to any period for which an interest rate is to be determined (if the currency is euro) two TARGET Days before the first day of that period (unless market practice differs in the Relevant Market, in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days));
Rating Agency means either of Moody’s Investors Service Limited, Standard and Poor’s Global Ratings or Fitch Ratings Ltd;
Receiver means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.
Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund;
Relevant Market means, in relation to euro, the European interbank market;
Relevant Nominating Body means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board;
Relevant Period has the meaning given to that term in Clause 21.1 (Definitions and interpretation);
Repeating Representations means each of the representations set out in Clauses 19.1 (Status) to 19.7 (Governing law and enforcement), Clause 19.10 (No default), Clause 19.13 (Pari passu ranking) and paragraph (b)
25
of Clause 19.16 (Sanctions, anti-corruption, anti-bribery and anti-money laundering);
Replacement Benchmark means a benchmark rate which is:
(a) |
formally designated, nominated or recommended as the replacement for a Screen Rate by: |
(i) |
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or |
(ii) |
any Relevant Nominating Body, |
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the “Replacement Benchmark” will be the replacement under paragraph (ii) above;
(b) |
in the opinion of the Majority Lenders and the Obligors, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or |
(c) |
in the opinion of the Majority Lenders and the Obligors, an appropriate successor to a Screen Rate; |
Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian;
Resignation Letter means a letter substantially in the form set out in Schedule 6 (Form of Resignation Letter);
Response Deadline has the meaning given to that term in paragraph (b) of Clause 2.3 (Increase – Accordion Option);
Rollover Loan means one or more Loans:
(a) |
made or to be made on the same day that a maturing Loan is due to be repaid; |
(b) |
the aggregate amount of which is equal to or less than the amount of the maturing Loan; |
(c) |
in the same currency as the maturing Loan; and |
(d) |
made or to be made to the same Borrower for the purpose of refinancing that maturing Loan; |
Sanctioned Territory means, at any time, a country or territory which is subject to general export, import, financial or investment embargo under any Sanctions, which, as of the date of this Agreement, include (but are not limited to) Cherson, Crimea, so-called “Donetsk People’s Republic”, so-called “Luhansk People’s Republic” and Zaporizhja (each as defined and construed in the applicable Sanctions by the relevant Sanctions Authority), Cuba, Iran, North Korea and Syria;
26
Sanctions means any trade, economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by any Sanctions Authority;
Sanctions Authority means any of:
(a) |
the government of the US; |
(b) |
the United Nations; |
(c) |
the European Union and each of its member states; |
(d) |
the United Kingdom; |
(e) |
the Federal Republic of Germany; |
(f) |
any jurisdiction of incorporation of any Obligor; or |
(g) |
the respective governmental institutions and agencies of any of the foregoing, including, without limitation, the Office of Foreign Assets Control of the US Department of Treasury (OFAC), the US Department of State and His Majesty’s Treasury or any other relevant sanctions authority; |
Sanctions List means the Specially Designated Nationals and Blocked Persons list maintained by OFAC, the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by His Majesty’s Treasury, or any similar list maintained by, or public announcement of a Sanctions designation made by, a Sanctions Authority, each as amended, supplemented or substituted from time to time;
Sanctions Restricted Person means a person:
(a) |
that is listed on any Sanctions List (whether designated by name or by reason of being included in a class of person); |
(b) |
that is, or is part of, a government of a Sanctioned Territory; |
(c) |
that is domiciled, resident, registered as located or having its place of business in, or is incorporated under the laws of, a Sanctioned Territory; or |
(d) |
that is directly or indirectly owned or controlled by, or acting on behalf of, one or more persons referred to in (a), (b) and/or (c) above. |
27
For the purpose of this definition ownership is given if an entity is owned by another person or entity by 50 per cent. or more of the proprietary rights;
Screen Rate means in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the LSEG screen (or any replacement LSEG page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of LSEG. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Company;
Screen Rate Replacement Event means, in relation to the Screen Rate:
(a) |
the methodology, formula or other means of determining the Screen Rate has, in the opinion of the Majority Lenders, and the Obligors’ Agent materially changed; |
(b)
(i)
(A) |
the administrator of the Screen Rate or its supervisor publicly announces that such administrator is insolvent; or |
(B) |
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of the Screen Rate is insolvent, |
provided that, in each case, at that time, there is no successor administrator to continue to provide the Screen Rate;
(ii) |
the administrator of the Screen Rate publicly announces that it has ceased or will cease, to provide the Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide the Screen Rate; |
(iii) |
the supervisor of the administrator of the Screen Rate publicly announces that the Screen Rate has been or will be permanently or indefinitely discontinued; or |
(iv) |
the administrator of the Screen Rate or its supervisor announces that the Screen Rate may no longer be used; or |
28
(c) |
the administrator of the Screen Rate determines that the Screen Rate should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and either: |
(i) |
the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Obligors’ Agent) temporary; or |
(ii) |
the Screen Rate is calculated in accordance with any such policy or arrangement for a period no less than ten (10) Business Days; or |
(d) |
in the opinion of the Majority Lenders and the Obligors’ Agent, the Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement; |
Second Anniversary means the second anniversary of the date of this Agreement;
Second Anniversary Extending Lender has the meaning given to that term in Clause 3.2 (Extension Prior to the Second Anniversary);
Second Anniversary Extension Request has the meaning given to that term in Clause 3.2 (Extension Prior to the Second Anniversary);
Second Anniversary Limited Extending Lender has the meaning given to that term in Clause 3.2 (Extension Prior to the Second Anniversary);
Second Anniversary Non-Extending Lender has the meaning given to that term in Clause 3.2 (Extension Prior to the Second Anniversary);
Second Extension Date has the meaning given to that term in Clause 3.2 (Extension Prior to the Second Anniversary);
Security means a mortgage, land charge, charge, pledge, lien, assignment or transfer for security purposes, retention of title arrangement or other security interest having a right in rem effect (dingliche Wirkung);
Shortfall Accordion Increase Lender has the meaning given to that term in paragraph (e) of Clause 2.3 (Increase – Accordion Option);
Shortfall Amount has the meaning given to that term in paragraph (d) of Clause 2.3 (Increase – Accordion Option);
Separate Loan has the meaning given to that term in Clause 8 (Repayment);
Specified Time means a day or time determined in accordance with Schedule 9 (Timetables); Subsidiary means a subsidiary within the meaning of sections 16 and 17 German Stock Corporation Act (Aktiengesetz);
29
T2 means the real time gross settlement system operated by the Eurosystem, or any successor system;
TARGET Day means any day on which T2 is open for the settlement of payments in euro;
Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same);
Tax Deduction has the meaning given to that term in Clause 14.1 (Definitions);
Termination Date means the Initial Termination Date, extended as applicable in accordance with Clause 3 (Extension Option);
Testing Date has the meaning given to that term in Clause 21.1 (Definitions and interpretation);
Total Commitments means the aggregate of the Commitments being EUR 250,000,000 at the date of this Agreement;
Total Consideration has the meaning given to that term in Clause 21.1 (Definitions and interpretation);
Transaction Security means the Security created or expressed to be created in favour of the Security Agent (or the Finance Parties, as applicable) pursuant to the Transaction Security Documents;
Transaction Security Documents means each of the documents set out as being a Transaction Security Document in Clause 22.14 (Guarantors) and any document required to be delivered to the Agent under paragraph 2(f) of Part B of Schedule 2 (Conditions Precedent) together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents;
Transfer Certificate means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Company;
Transfer Date means, in relation to an assignment and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 24.5 (Procedure for assignment and transfer by way of assumption of contract (Vertragsübernahme)), the later of:
(a) |
the proposed Transfer Date specified in the Transfer Certificate; and |
30
(b) |
the date on which the Agent executes the Transfer Certificate; |
Umbrella Facility is an Ancillary Facility which is made available to the Company as prerequisite for the provision of credit to its Subsidiaries, if and to the extent that the Company has provided a Maximum Amount Guarantee for the liabilities of any of its Subsidiaries under or in connection with a related Local Facility or related Local Facilities, as the case may be. For the purposes of this Agreement (unless expressly provided otherwise therein), the relevant Ancillary Documents will determine whether the Umbrella Facility will be deemed utilised (i) in the amount of the Maximum Amount Guarantee provided in connection with the relevant Local Facility or Local Facilities or (ii) in the total amount of Local Facility or Local Facilities provided under such Maximum Amount Guarantee, as the case may be. If the relevant Ancillary Documents do not contain a corresponding regulation, alternative (i) applies;
Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents;
US means the United States of America;
US Bankruptcy Code means the US Bankruptcy Code (Title 11 of the US Code);
US Bankruptcy Law means the US Bankruptcy Code and any other US Federal or State bankruptcy, insolvency or similar law;
US Obligor means an Obligor organised or formed under US federal law or the law of any State of the US;
Utilisation means a utilisation of the Facility;
Utilisation Date means the date of a Utilisation, being the date on which a Loan is to be made;
Utilisation Request means a notice substantially in the form set out in Part A of Schedule 3 (Requests);
VAT means:
(a) |
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and |
(b) |
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere; and |
(c) |
any value added tax imposed by the United Kingdom Value Added Tax Act 1994. |
31
1.2Construction
(a) |
Unless a contrary indication appears, any reference in this Agreement (and in relation to sub-paragraph (iv) below in relation to any Finance Document) to: |
(i) |
the Agent, the Arranger, any Finance Party, any Lender, any Ancillary Lender, any Obligor, any Party or the Security Agent shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents; |
(ii) |
assets includes present and future properties, revenues and rights of every description; |
(iii) |
director includes any statutory legal representative(s) (organschaftlicher Vertreter) of a person pursuant to the laws of its jurisdiction of incorporation, including but not limited to, in relation to a person incorporated or established in Germany, a managing director (Geschäftsführer) or member of the board of directors (Vorstand); |
(iv) |
a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated; |
(v) |
a group of Lenders includes all the Lenders; |
(vi) |
indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; |
(vii) |
a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality); |
(viii) |
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law, but if not having the force of law, which is generally complied with by those to whom it is addressed) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation; |
(ix) |
a provision of law is a reference to that provision as amended or re-enacted from time to time; and |
32
(x) |
a time of day is a reference to Düsseldorf time. |
(b) |
The determination of the extent to which a rate is for a period equal in length to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement. |
(c) |
Section, Clause and Schedule headings are for ease of reference only. |
(d) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement. |
(e) |
A Borrower providing cash cover for an Ancillary Facility means a Borrower paying an amount in the currency of the relevant Ancillary Facility to an account (which must not be an account bearing negative interest) in the name of that Borrower and the following conditions being met: |
(i) |
the account is with the Ancillary Lender for which that cash cover is to be provided; |
(ii) |
until no amount is or may be outstanding under that Ancillary Facility, withdrawals from the account may only be made to pay the relevant Finance Party amounts due and payable to it under this Agreement in respect of that Ancillary Facility; and |
(iii) |
that Borrower has executed a security document over that account, in form and substance satisfactory to the Finance Party with which that account is held, creating a first ranking security interest over that account. |
(f) |
A Borrower repaying or prepaying Ancillary Outstandings means: |
(i) |
that Borrower providing cash cover in respect of those Ancillary Outstandings; or |
(ii) |
the maximum amount payable under that Ancillary Facility being reduced or cancelled in accordance with its terms; or |
(iii) |
the Ancillary Lender has confirmed to the Agent that it shall no longer have any claims against the Lenders or any other Finance Party under this Agreement in respect to those Ancillary Outstandings; or |
(iv) |
the Ancillary Lender being satisfied that it has no further liability under that Ancillary Facility; or |
33
(v) |
the implementation of any other arrangement, including the delivery of a counter-guarantee or any agreement pursuant to which the Ancillary Outstandings shall be continued on a bilateral basis, in each case as agreed with the relevant Ancillary Lender, |
and the amount by which Ancillary Outstandings are repaid or prepaid under paragraphs (i) and (ii) above is the amount of the relevant cash cover, reduction or cancellation.
(g) |
An amount borrowed includes any amount utilised under an Ancillary Facility. |
(h) |
A Default, an Event of Default, a Material Default and a Material Event of Default is continuing if it has not been remedied or waived. |
(i) |
Subject to Clause 35.3 (Other exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time. |
(j) |
A reference in this Agreement to a page or screen of an information service displaying a rate shall include: |
(i) |
any replacement page of that information service which displays that rate; and |
(ii) |
the appropriate page of such other information service which displays that rate from time to time in place of that information service, |
and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Agent after consultation with the Company.
(k) |
Nothing in this Agreement shall be construed as to exclude the liability of any person for its own wilful misconduct (Vorsatz). |
1.3Currency symbols and definitions
€, EUR and euro denote the single currency of the Participating Member States.
1.4Basket testing
(a) |
Any amounts incurred or transactions undertaken on the basis of any basket, test or permission where an element is set by reference to a percentage of total consolidated assets or consolidated assets of the Group (Total Assets Based Basket) shall (provided that such amounts or transactions are, at the time of incurrence or undertaking, duly and properly incurred or undertaken in accordance with the relevant basket, |
34
test or permission) be treated as having been duly and properly incurred or undertaken without the occurrence of an Event of Default even in the event that such Total Assets Based Basket subsequently decreases by virtue of operation of that calculation.
(b) |
Notwithstanding any other provisions to the contrary in this Agreement or any other Finance Document, any financial definition or incurrence based permission, test or basket (including a Total Asset Based Basket or the calculation of the Leverage) shall be calculated against the latest (i) audited consolidated annual financial statements of the Company delivered pursuant to paragraph (a) of Clause 20.1 (Financial statements) or (ii) (except in the case of any Total Asset Based Basket) unaudited consolidated quarterly financial statements of the Company delivered pursuant to paragraph (b) of Clause 20.1 (Financial statements), whichever are most recently delivered to the Agent. |
1.5English language
This Agreement is made in the English language. For the avoidance of doubt, the English language version of this Agreement shall prevail over any translation of this Agreement. However, where a German translation of a word or phrase appears in the text of this Agreement, the German translation of such word or phrase shall prevail.
1.6French terms
(a) |
In this Agreement, where it relates to a French entity and unless expressly provided to the contrary, a reference to: |
(i) |
a director includes a reference to a member of the board of directors (conseil d’administration), a member of a supervisory board (comité de surveillance or conseil de surveillance), an administrateur, a gérant, a member of a management board (conseil de gérance) or a member of a directoire; |
(ii) |
acting in concert has the meaning given in article L.233-10 of the French Commercial Code; |
(iii) |
a composition, compromise, assignment, arrangement with any creditor or similar arrangement with any creditor includes a procédure de conciliation or a mandat ad hoc under “Livre VI” of the French Commercial Code; |
(iv) |
a company controlled has the meaning ascribed to such term by Article L. 233-3 I, 1° and 2° of the French Commercial Code; |
(v) |
constitutional documents means the most recent statuts of the relevant entity; |
35
(vi) |
financial assistance has the meaning given in article L. 225-216 of the French Commercial Code; |
(vii) |
a guarantee includes any cautionnement, aval and any guarantee which is independent from the debt to which it relates and any type of sûreté personnelle as defined in article 2287-1 of the French Civil Code; |
(viii) |
gross negligence includes a faute lourde; |
(ix) |
a lease includes an opération de crédit-bail; |
(x) |
a liquidator, receiver, administrative receiver, administrator, trustee, compulsory manager or other similar officer includes an administrateur judiciaire, mandataire ad hoc, conciliateur, mandataire liquidateur or any other person appointed as a result of any proceedings described in paragraphs (iii) above or (xix) below; |
(xi) |
a person being unable to pay its debts as they fall due includes that person being in a state of cessation des paiements (within the meaning of article L. 631-1 of the French Commercial Code); |
(xii) |
merger includes any fusion implemented in accordance with articles L. 236-1 to L. 236-17 and L. 236-31 to L.236-45 of the French Commercial Code; |
(xiii) |
a moratorium includes a moratorium under a conciliation procedure in accordance with articles L. 611-4 to L. 611-16 of the French Commercial Code; |
(xiv) |
a reconstruction includes, in relation to any company, any contribution of part of its business in consideration of shares (apport partiel d’actifs) and any merger (fusions) or demerger (scission) implemented in accordance with articles L. 236-1 to L. 236-53 of the French Commercial Code; |
(xv) |
a security or security interest includes any type of security (sûreté réelle), transfer or assignment by way of security and fiducie- sûreté; |
(xvi) |
a transfer includes any means of transfer of rights and/or obligations under French law; |
(xvii) |
trustee, fiduciary and fiduciary duty has in each case the meaning given to that term under any applicable law; |
(xviii) |
wilful misconduct includes dol; and |
36
(xix) |
a winding-up, dissolution, administration or reorganisation includes a redressement judiciaire, cession totale de l’entreprise, liquidation judiciaire or a procédure de sauvegarde (including the sauvegarde accélérée) under “Livre VI” of the French Commercial Code. |
(b) |
Notwithstanding any other term of this Agreement or any other Finance Document: |
(i) |
the representations made (or to be made) under Clause 19 (Representations) and the undertakings to be given under Clause 22 (General Undertakings) by each French Guarantor shall be made for itself and, where provided for, for each of its Subsidiaries only; and |
(ii) |
the obligations of any French Guarantor under this Agreement will not extend beyond a point where they would constitute a provision of financial assistance within the meaning of article L. 225-216 of the French Commercial Code and/or would constitute a misuse of corporate assets or corporate credit within the meaning of article L. 242-6, L. 241-3 or L. 244-1 of the French Commercial Code (or other applicable similar prohibitions). |
1.7Italian terms
In this Agreement, where it relates to a person: (i) incorporated; (ii) established; (iii) constituted; (iv) formed; (v) which carries on, or has carried on, business; or (vi) that has immovable property, in each case, in Italy, a reference to:
(a) |
a “liquidation”, “winding-up”, “administration”, or “dissolution”, includes any scioglimento, liquidazione, and any other proceedings or legal concepts similar to the foregoing; |
(b) |
“insolvency”, “solvency”, “insolvent” and “solvent” shall be interpreted within the meaning of article 2, letter b) of the Italian Crisis and Insolvency Code and/or article 3 of Legislative Decree No. 270 of 8 July 1999 (as amended from time to time) and/or any other analogous Italian Crisis and Insolvency Code provisions entering into force, to the extent relevant and applicable; |
(c) |
an insolvency proceeding includes: |
(i) |
any voluntary or involuntary liquidation, winding-up, administration, dissolution (other than on a solvent basis), judicial liquidation, bankruptcy (to the extent applicable after 15 July 2022), insolvency, reorganisation, moratorium, |
37
compromise, composition or other relief with respect to any person or that person’s debts;
(ii) |
any proceeding aimed at seeking the appointment of, or taking possession by a liquidator, commissioner, examiner, receiver, administrative receiver, administrator, insolvency administrator, trustee in bankruptcy, custodian, judicial custodian, conservator or other similar official for any person or for all or any substantial part of that person’s assets; |
(iii) |
any procedura concorsuale, including judicial liquidation (liquidazione giudiziale), composition with creditors (concordato preventivo) pursuant to articles 84 and ff. of the Italian Crisis and Insolvency Code, concordato nella liquidazione giudiziale pursuant to articles 240 and ff. of the Italian Crisis and Insolvency Code, forced administrative liquidation (liquidazione coatta amministrativa) pursuant to articles 293 and ff. of the Italian Crisis and Insolvency Code, amministrazione straordinaria under Italian Law No. 39 of 18 February 2004 or misure urgenti per la ristrutturazione industriale delle grandi imprese in stato di insolvenza, cessio bonorum, proposte di concordato, concordato in bianco, cessione dei beni ai creditori pursuant to article 1977 of the Italian Civil Code, restructuring plan (piano di risanamento) pursuant to article 56 of the Italian Crisis and Insolvency Code, entering into an accordo di ristrutturazione dei debiti pursuant to article 57 and ff. of the Italian Crisis and Insolvency Code, accordo di ristrutturazione agevolato pursuant to article 60 of the Italian Crisis and Insolvency Code, accordo di ristrutturazione ad efficacia estesa pursuant to article 61 of the Italian Crisis and Insolvency Code, an accordo di ristrutturazione con intermediari finanziari or a convenzione di moratoria pursuant to article 62 of the Italian Crisis and Insolvency Code, tax and contributions transaction (transazione su crediti tributari e contributivi) pursuant to article 63 of the Italian Crisis and Insolvency Code, a restructuring plan subject to homologation (piano di ristrutturazione soggetto ad omologazione) pursuant to article 64-bis of the Italian Crisis and Insolvency Code, domanda di accesso ad uno strumento di regolazione della crisi e dell’insolvenza con riserva di deposito di documentazione pursuant to article 44 of the Italian Crisis and Insolvency Code, filing a petition for a concordato preventivo or for a concordato semplificato pursuant to article 25-sexies of the Italian Crisis and Insolvency Code, simplified asset liquidation procedure (concordato semplificato per la liquidazione del |
38
patrimonio) pursuant to article 25-sexies and ff. of the Italian Crisis and Insolvency Code, minor composition with creditors (concordato minore) pursuant to article 74 and ff. of the Italian Crisis and Insolvency Code, amministrazione straordinaria delle grandi imprese in stato di insolvenza under Italian Law No. 270 of 8 July 1999, as amended, concordato, crisis settlement procedure (composizione negoziata della crisi) pursuant article 12 and ff. of the Italian Crisis and Insolvency Code, accordi di ristrutturazione e piano attestato di gruppo pursuant to article 284 and ff. of the Italian Crisis and Insolvency Code and any equivalent insolvency proceeding under any Italian law or regulation enacted or entered into force after the date of this Agreement, replacing, amending or integrating the Italian Crisis and Insolvency Code, as well as any other procedure set out as procedura di risanamento and/or procedura di liquidazione pursuant to Italian Legislative Decree no. 170 of 21 May 2004. It being understood that the provisions under the Italian Bankruptcy Law continue to apply with reference to any proceedings commenced before 15 July 2022 and therefore the relevant tools and proceedings are intended to be included herein to the extent applicable;
(iv) |
any proceedings or act in any other jurisdiction with the same purposes or effects pursued by the procedures or acts mentioned under sub-paragraph (iii) above, |
(d) |
a “liquidator”, “commissioner”, “examiner”, “receiver”, “administrative receiver”, “administrator”, “insolvency administrator”. “custodian”, “trustee in bankruptcy”, “judicial custodian”, “conservator” or similar terms includes, without limitation, a curatore, commissario giudiziale, esperto, commissario straordinario, commissario liquidatore, liquidatore or any other person (including, without limitation, those persons provided in the Italian Crisis and Insolvency Code provisions once in force) performing the same function of each of the foregoing; |
(e) |
a “step” or “procedure” taken in connection with insolvency proceedings in respect of any person includes, without limitation, that person formally making a proposal to assign its assets pursuant to Article 1977 of the Italian Civil Code (cessione dei beni ai creditori), approving the filing of a petition for the appointment of an expert (esperto) for the purposes of a composizione negoziata della crisi pursuant to article 17 and ff. of the Italian Crisis and Insolvency Code, or pursuant to article 40 and ff. of the Italian Crisis and Insolvency Code, or of a domanda di accesso ad uno strumento di regolazione della crisi e dell’insolvenza con riserva di deposito di documentazione pursuant to article 44 of the |
39
Italian Crisis and Insolvency Code, or of a simplified asset liquidation procedure (concordato semplificato per la liquidazione del patrimonio) pursuant to article 25-sexies and ff. of the Italian Crisis and Insolvency Code, or of minor composition with creditors (concordato minore) pursuant to article 74 and ff. of the Italian Crisis and Insolvency Code, or the appointment of an independent expert (professionista indipendente) for the certification (attestazione) of restructuring arrangements pursuant to article 57, 60 and/or 61 of the Italian Crisis and Insolvency Code, or of a moratorium agreement (convenzione di moratoria) pursuant to article 62 of the Italian Crisis and Insolvency Code, or of a tax and contributions transaction (transazione su crediti tributari e contributivi) pursuant to article 63 of the Italian Crisis and Insolvency Code, or of a restructuring plan, implementing a piano di risanamento pursuant to article 56 of the Italian Crisis and Insolvency Code, entering into an accordo di ristrutturazione dei debiti pursuant to article 57 of the Italian Crisis and Insolvency Code, an accordo di ristrutturazione con intermediari finanziari or a convenzione di moratoria pursuant to article 61 and 62 of the Italian Crisis and Insolvency Code, filing a petition for a concordato preventivo or entering into a similar arrangement for a substantial part of its creditors or of a plan subject to homologation (piano di ristrutturazione soggetto ad omologazione) pursuant to article 64-bis and ff. of the Italian Crisis and Insolvency Code. It being understood that the provisions under the Italian Bankruptcy Law continue to apply with reference to any proceedings commenced before 15 July 2022 and therefore any filing of documents, any executed agreement or other action adopted in order to activate the relevant tools and proceedings are intended to be included herein to the extent applicable;
(f) |
an “attachment” or “order” includes, without limitation, a pignoramento or a sequestro; |
(g) |
a “lease” includes a contratto di locazione or comodato; |
(h) |
a “matured obligation” and “an obligation being due” includes, without limitation, any credito liquido ed esigibile and credito scaduto; |
(i) |
a reference to financial assistance means unlawful financial assistance within the meaning of articles 2358 and/or 2474 of the Italian Civil Code as applicable; |
(j) |
“wilful misconduct” or “wilful breach” (or similar expression) shall be construed as the Italian expression dolo; |
(k) |
a “security” or a “lien” that relates to a security governed by Italian law includes, without limitation, any pegno (including, to the extent |
40
implemented under Italian law, the pegno mobiliare non possessorio pursuant to Italian Law Decree No. 59 of 3 May 2016 converted into law no. 119 dated 30 June 2016), ipoteca, privilegio (including the privilegio speciale pursuant to Article 46 of the Italian Banking Law), cessione del credito in garanzia, diritto reale di garanzia, finanziamento alle imprese garantito da trasferimento di bene immobile sospensivamente condizionato pursuant to Italian Law Decree No. 59 of 3 May 2016 converted into law no. 119 dated June 30, 2016 and any other garanzia reale or other transactions having the same effect as each of the foregoing;
(l) |
a “guarantee”, if referred to a guarantee governed by Italian law includes, without limitation, any fideiussione, garanzia a prima domanda or garanzia personale; |
(m) |
a “limited liability company” means società a responsabilità limitata; and |
(n) |
a “joint stock company” means società per azioni. |
1.8 Relevant Restructuring Event
(a) |
Notwithstanding anything to the contrary in this Agreement, the Finance Parties are not entitled to: |
(i) |
cancel any of their Commitments; |
(ii) |
terminate or cancel this Agreement or the Facility; |
(iii) |
refuse to make a Utilisation; |
(iv) |
cancel, accelerate, declare due and payable or cause repayment or prepayment of any amounts owing under this Agreement or any other Finance Document prior to its stated maturity; or |
(v) |
otherwise withhold performance or terminate, accelerate or, in any other way, modify this Agreement or any other Finance Document to the detriment of an Obligor, |
solely by reason of the occurrence of an applicable Relevant Restructuring Event in relation to any Obligor, in each case if and to the extent such rights, remedies and/or measures are restricted or excluded by any applicable Relevant Termination Restriction.
(b) |
Nothing in this Clause 1.8 shall limit or exclude: |
(i) |
any of the obligations of an Obligor under this Agreement or any other Finance Document; or |
41
(ii) |
any of the rights, remedies or entitlements of the Finance Parties: |
(A) |
against an Obligor arising on, or being available because of, any ground other than the occurrence of any applicable Relevant Restructuring Event; or |
(B) |
being available under any applicable law (including section 55 paragraph 3 of the StaRUG). |
(c) |
In this Clause 1.8: |
COMI means, in relation to a person, its centre of main interests (as that term is used in article 3(1) of the Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) (the Regulation) or any establishment (as that term is used in article 2(10) of the Regulation) of that person.
EU Restructuring Directive means the Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency).
Relevant Termination Restriction means:
(i) |
if the Company has its COMI in Germany, section 44 paragraph 1 of the StaRUG; and |
(ii) |
if the Company has its COMI in a member state of the European Union (other than Germany), Iceland, Liechtenstein or Norway, the law or regulation of that member state of the European Union, Iceland, Liechtenstein or Norway, as the case may be, which implements paragraph 5 of article 7 (Consequences of the stay of individual enforcement actions) of the EU Restructuring Directive. |
Relevant Restructuring Event means:
(i) |
if an Obligor has its COMI in Germany, any StaRUG Event; and |
(ii) |
if an Obligor has its COMI in a member state of the European Union (other than Germany), Iceland, Liechtenstein or Norway, any event in relation to which the law or regulation of that member state of the European Union, Iceland, Liechtenstein or Norway, as the case may be, which implements paragraph 5 of article 7 (Consequences of the stay of individual enforcement |
42
actions) of the EU Restructuring Directive restricts or excludes a creditor’s rights, remedies and/or measures vis-à-vis the relevant debtor(s) which are or become available or exercisable by reason of such event.
StaRUG means the German Act on the Stabilisation and Restructuring Framework for Companies (Unternehmensstabilisierungs- und- restrukturierungsgesetz).
StaRUG Event means, in relation to a person which has its COMI in Germany, a restructuring matter (Restrukturierungssache) being pending (rechtshängig) against that person or that person utilising any tools of the restructuring or stabilisation framework (Instrumente des Stabilisierungs- und Restrukturierungsrahmens) pursuant to the StaRUG.
43
SECTION 2
THE FACILITY
2. |
THE FACILITY |
2.1The Facility
(a) |
Subject to the terms of this Agreement the Lenders make available to the Borrowers a revolving credit facility in an aggregate amount equal to the Total Commitments. |
(b) |
Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make all or part of its Commitment available to any Borrower as an Ancillary Facility. |
2.2Increase
(a) |
The Company may by giving prior notice to the Agent after the effective date of a cancellation of: |
(i) |
the Available Commitment of a Defaulting Lender in accordance with paragraph (h) of Clause 9.5 (Right of replacement or repayment and cancellation in relation to a single Lender); or |
(ii) |
the Commitment of a Lender in accordance with: |
(A) |
Clause 9.1 (Illegality); or |
(B) |
paragraph (a) of Clause 9.5 (Right of replacement or repayment and cancellation in relation to a single Lender), |
request that the Commitments be increased (and the Commitments shall be so increased) in an aggregate amount in euro of up to the amount of the Available Commitment or Commitment so cancelled, as follows:
(1) |
the increased Commitments will be assumed by one or more Lenders or other banks or financial institutions (each an Increase Lender) selected by the Company (each of which is not a member of the Group) and each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender; |
44
(2) |
each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender; |
(3) |
each Increase Lender shall become a Party as a “Lender” and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender; |
(4) |
the Commitments of the other Lenders shall continue in full force and effect; and |
(5) |
any increase in the Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied. |
(b) |
An increase in the Commitments relating to the Facility will only be effective on: |
(i) |
the execution by the Agent of an Increase Confirmation from the relevant Increase Lender; and |
(ii) |
in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the Agent being satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender. The Agent shall promptly notify the Company and the Increase Lender upon being so satisfied. |
(c) |
Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound by that |
45
decision to the same extent as it would have been had it been an Original Lender.
(d) |
The Company shall, promptly on demand, pay the Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with any increase in Commitments under this Clause 2.2. |
(e) |
The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 24.3 (Assignment or assignment and transfer by assumption of contract (Vertragsübernahme) fee) if the increase was a transfer pursuant to Clause 24.5 (Procedure for assignment and transfer by assumption of contract (Vertragsübernahme)) and if the Increase Lender was a New Lender. |
(f) |
The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a letter between the Company and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph (f). |
(g) |
Neither the Agent nor any Lender shall have any obligation to find an Increase Lender and in no event shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents. |
(h) |
Clause 24.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to: |
(i) |
an Existing Lender were references to all the Lenders immediately prior to the relevant increase; |
(ii) |
the New Lender were references to that “Increase Lender”; |
(iii) |
a re-transfer and re-assignment were references to respectively a transfer and assignment; and |
(iv) |
a re-assignment and re-assignment and re-transfer by assumption of contract (Vertragsübernahme) were references to respectively an assignment and assignment and transfer by assumption of contract (Vertragsübernahme). |
46
2.3Increase – Accordion Option
(a) |
The Company may at any time, but not more than twice in total over the lifetime of the Facility, by delivery to the Agent of a duly completed Accordion Increase Request, request that the Total Commitments be increased, provided that: |
(i) |
each Accordion Increase Amount must be in a minimum amount of EUR 25,000,000 in respect of any proposed increase of the Total Commitments; |
(ii) |
after giving effect to the increases requested in all the Accordion Increase Requests, these would not result in the aggregate of all Accordion Increase Amounts to exceed EUR 100,000,000 during the lifetime of the Facility; |
(iii) |
the Company shall, at the same time as delivering the Accordion Increase Request, confirm to the Agent that: |
(A) |
all Repeating Representations are true and correct in all material respects by reference to the facts and circumstances then subsisting; and |
(B) |
no Event of Default has occurred which is continuing on the date of the Accordion Increase Request or would result from such increase in the Total Commitments; |
(iv) |
the Company must initially only request that the existing Lenders increase their Commitments on a pro rata basis (such a pro rata amount, the Accordion Initial Allocation); |
(v) |
the respective Accordion Increase Request is delivered during the Availability Period; and |
(vi) |
any decision whether to increase any Commitment under this Agreement pro rata or in an amount which is less than its pro rata share in the Total Commitments shall be made by each Lender at its sole discretion and no Commitment of a Lender shall be increased without the prior written consent of that Lender and each Lender is free (in its absolute discretion) to agree or not to agree to an Accordion Increase Request. |
(b) |
Each existing Lender that is willing to increase its Commitment (an Accordion Increase Lender) in an amount equal to its Accordion Initial Allocation or any lower amount shall, within 15 Business Days of the date of delivery of the Accordion Increase Request by the Company to the Agent (the last day of such 15 Business Days period, the Response Deadline) (which shall be delivered by the Agent to the existing Lenders |
47
promptly upon delivery to the Agent, together with the indication of the Accordion Initial Allocation for each existing Lender), deliver to the Agent and to the Company a duly completed and countersigned Accordion Increase Confirmation setting out its Accordion Initial Allocation or any lower amount (the aggregate of such committed Accordion Initial Allocations and such committed lower amounts notified by any existing Lenders being the Accordion Initial Increase Amount). Any Lender that fails to deliver to the Agent and Company an Accordion Increase Confirmation shall be deemed to have notified the Agent and Company that it is not willing to increase its Commitment.
(c) |
The Commitments of the existing Lenders which have committed to increase their respective Commitments by delivering a duly completed and countersigned Accordion Increase Confirmation until the Response Deadline pursuant to paragraph (b) above shall be increased with binding effect for all Parties in accordance with such Accordion Increase Confirmations with effect from the date which falls two (2) Business Days after the Response Deadline or any later date specified by the Company in the relevant Accordion Increase Request, subject to the execution by the Agent of such Accordion Increase Confirmations and satisfaction of the other conditions set out in this Clause 2.3 (such date being an Accordion Increase Date 1). |
(d) |
If any existing Lender does not deliver to the Agent and the Company a duly completed and countersigned Accordion Increase Confirmation or delivers a duly completed and countersigned Accordion Increase Confirmation committing only a lower amount than its respective Accordion Initial Allocation pursuant to paragraph (b) above (the resulting difference between the Accordion Increase Amount and the Accordion Initial Increase Amount being the Shortfall Amount), the Company may offer to any existing Lender and/or to one or more other banks or financial institutions selected by the Company (each of which shall not be a member of the Group) that may be willing to become an Accordion Increase Lender to commit the Shortfall Amount (in whole or in part) by delivery of a (further) duly completed Accordion Increase Request. |
(e) |
Each such existing Lender and/or other bank or financial institution selected by the Company (each of which shall not be a member of the Group) that is willing to become an Accordion Increase Lender with respect to the Shortfall amount (in whole or in part) (each a Shortfall Accordion Increase Lender) shall, within 15 Business Days of the date of delivery of the (further) Accordion Increase Request by the Company to the Agent in accordance with the preceeding paragraphs of this Clause 2.3, deliver to the Agent and the Company a duly completed and |
48
countersigned Accordion Increase Confirmation in respect of any such Commitment that it is willing to make available in respect of the Shortfall Amount.
(f) |
Each such other bank or financial institution selected by the Company (each of which shall not be a member of the Group) that is willing to become an Accordion Increase Lender by delivering a duly completed and countersigned Accordion Increase Confirmation pursuant to paragraphs (d) and (e) above shall be construed as an “Accordion Increase Lender” for the purposes of this Clause 2.3, subject to it becoming a Party as a “Lender” pursuant to paragraph (j)(iii) of this Clause 2.3. |
(g) |
The Commitments of the Shortfall Accordion Increase Lenders which have committed to increase their respective Commitments or assume new Commitments (as applicable) by delivering a duly completed and countersigned Accordion Increase Confirmation pursuant to paragraph (e) above shall be increased or assumed (as applicable) with binding effect for all Parties in accordance with such Accordion Increase Confirmations with effect from the date which falls two (2) Business Days after the relevant Response Deadline or any later date specified by the Company in the relevant Accordion Increase Request, subject to the execution by the Agent of such Accordion Increase Confirmations and satisfaction of the other conditions set out in this Clause 2.3 (such date being an Accordion Increase Date 2 and together with the relevant Accordion Increase Date 1, an Accordion Increase Date). |
(h) |
The Agent shall, subject to paragraph (i) below, as soon as reasonably practicable after receipt by it of a duly completed Accordion Increase Confirmation appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Accordion Increase Confirmation. |
(i) |
The Agent shall only be obliged to execute an Accordion Increase Confirmation delivered to it by an Accordion Increase Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Accordion Increase Lender. |
(j) |
On the relevant Accordion Increase Date: |
(i) |
each Accordion Increase Lender shall assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender in respect of those Commitments; |
49
(ii) |
each of the Obligors and any Accordion Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Accordion Increase Lender would have assumed and/or acquired had the Accordion Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume; |
(iii) |
each Accordion Increase Lender which is not a Lender immediately prior to the Accordion Increase Date shall become a Party as a “Lender” and each Accordion Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Accordion Increase Lender and those Finance Parties would have assumed and/or acquired had the Accordion Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume; and |
(iv) |
the Commitments of the other Lenders shall continue in full force and effect. |
(k) |
Each Accordion Increase Lender, by executing an Accordion Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender. |
(l) |
The Company shall, promptly on demand, pay the Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with any increase in Commitments under this Clause 2.3. |
(m) |
The Accordion Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 24.3 (Assignment or assignment and transfer by assumption of contract (Vertragsübernahme) fee) if the increase was a transfer pursuant to Clause 24.5 (Procedure for assignment and transfer by assumption of contract (Vertragsübernahme)) and if the Accordion Increase Lender was a New Lender. |
(n) |
The Company may pay to the Accordion Increase Lender a fee in the amount and at the times agreed between the Company and the Accordion |
50
Increase Lender in a letter between the Company and the Accordion Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph (n).
(o) |
Neither the Agent nor any Lender shall have any obligation to find an Accordion Increase Lender. No Lender shall be under any obligation to execute any Accordion Increase Confirmation. |
(p) |
Clause 24.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.3 in relation to an Accordion Increase Lender as if references in that Clause to: |
(i) |
an Existing Lender were references to all the Lenders immediately prior to the relevant increase; |
(ii) |
the New Lender were references to that “Accordion Increase Lender”; and |
(iii) |
a re-transfer and re-assignment were references to respectively a transfer and assignment; and |
(iv) |
a re-assignment and re-assignment and re-transfer by assumption of contract (Vertragsübernahme) were references to respectively an assignment and assignment and transfer by assumption of contract (Vertragsübernahme). |
2.4 Finance Parties’ rights and obligations
(a) |
The obligations of each Finance Party under the Finance Documents are several and do not constitute a joint obligation (Ausschluss der gesamtschuldnerischen Haftung). Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents. |
(b) |
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and do not constitute a joint creditorship (Ausschluss der Gesamtgläubigerschaft) and any debt arising under the Finance Documents to a Finance Party from an Obligor is, except as otherwise set out in this Agreement or any other Finance Document, a separate and independent debt (Ausschluss der gesamtschuldnerischen Haftung) in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which |
51
relates to a Finance Party’s participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.
(c) |
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents. |
2.5 Obligors’ Agent
(a) |
Each Obligor (other than the Company) by its execution of this Agreement or an Accession Letter irrevocably appoints the Company (acting through one or more authorised signatories) to act on its behalf as its agent (and, as to each Italian Obligor, as its “mandatario con rappresentanza” pursuant to Italian law, with express consent pursuant to articles 1394 and 1395 of the Italian Civil Code) in relation to the Finance Documents and irrevocably authorises: |
(i) |
the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to deliver any Accordion Increase Request, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and |
(ii) |
each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company, |
and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.
(b) |
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or |
52
other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.
(c) |
Each Obligor (other than the Company) hereby releases the Company from any restrictions on representing several persons and self-dealing under any applicable law, and in particular from the restrictions of section 181 of the German Civil Code (Bürgerliches Gesetzbuch). |
3. |
EXTENSION OPTION |
3.1 |
Extension Prior to the First Anniversary |
(a) |
The Company may request from all Lenders, by delivering to the Agent an Extension Request (the First Anniversary Extension Request) not earlier than 60 days nor later than 30 days before the First Anniversary, that the Initial Termination Date be extended to the First Extension Date. |
(b) |
The Agent will promptly notify the Lenders following receipt of a First Anniversary Extension Request. |
(c) |
Each Lender notified under paragraph (b) above must notify the Agent by no later than the date falling fifteen (15) Business Days thereafter whether or not it is willing to extend the Initial Termination Date in respect of its Commitment. If a Lender fails to notify the Agent that Lender will be deemed to have notified the Agent that it is not so willing. |
(d) |
If each Lender notifies the Agent pursuant to paragraph (c) above that it is willing to extend the Initial Termination Date in respect of its Commitment in accordance with the First Anniversary Extension Request, the Agent shall promptly notify the Company and the Lenders accordingly whereupon the Initial Termination Date for all the Lenders shall be extended with binding effect for all Parties to the First Extension Date. |
(e) |
If not all of the Lenders notify the Agent pursuant to paragraph (c) above that they are willing to extend the Initial Termination Date in respect of their Commitments in accordance with the First Anniversary Extension Request, then the Agent shall promptly notify the Company and the Lenders accordingly whereupon (subject to Clause 3.2 (Extension Prior to the Second Anniversary)): |
(i) |
the Initial Termination Date in respect of the Commitment of each Lender that is willing to extend the Initial Termination Date in respect of its Commitment (a First Anniversary Extending Lender) shall be extended in relation to such First Anniversary Extending Lender’s Commitment to the First Extension Date for all purposes hereof and with binding effect for all Parties; and |
53
(ii) |
the Initial Termination Date in respect of the Commitment of each Lender that, pursuant to paragraph (c) above, has notified, or is deemed to have notified, the Agent that it is not willing to extend the Initial Termination Date in respect of its Commitment (a First Anniversary Non-Extending Lender) shall not be extended pursuant to this Clause 3.1 (Extension Prior to the First Anniversary). |
(f) |
In respect of the making of any Loan for which the last day of the relevant Interest Period is to fall after the Initial Termination Date but prior to the First Extension Date, unless, at the relevant time, all Lenders are First Anniversary Extending Lenders, Second Anniversary Limited Extending Lenders or Second Anniversary Extending Lenders, a Borrower shall be deemed to have addressed the relevant Utilisation Request only to the First Anniversary Extending Lenders, Second Anniversary Limited Extending Lenders and Second Anniversary Extending Lenders. |
3.2Extension Prior to the Second Anniversary
(a) |
Irrespective of whether the Company has delivered a First Anniversary Extension Request and, if delivered, irrespective of whether such First Anniversary Extension Request has resulted in the Initial Termination Date being extended to the First Extension Date in respect of the Commitment of any Lender, the Company may, by delivering to the Agent an Extension Request (the Second Anniversary Extension Request), request each Lender to extend: |
(i) |
(if the Company has not delivered a First Anniversary Extension Request) the Initial Termination Date to the First Extension Date or Second Extension Date; |
(ii) |
in the case of a First Anniversary Extending Lender (if any) the First Extension Date by a further period of one year to the Second Extension Date; or |
(iii) |
in the case of a First Anniversary Non-Extending Lender (if any), the Initial Termination Date applicable to it by a period of one or two years to the First Extension Date or Second Extension Date, respectively, |
such Extension Request to be delivered to the Agent not earlier than 60 days nor later than 30 days before the Second Anniversary.
(b) |
The Agent will promptly notify the Lenders following receipt of a Second Anniversary Extension Request. |
54
(c) |
Each Lender notified under paragraph (b) above must notify the Agent by no later than the date falling fifteen (15) Business Days thereafter whether or not it is willing to extend the relevant Termination Date in respect of its Commitment. If a Lender fails to so notify the Agent such Lender shall be deemed to have notified the Agent that it is not so willing. |
(d) |
If the Company has not delivered a First Anniversary Extension Request and each Lender notifies the Agent pursuant to paragraph (c) above that it is willing to extend the Initial Termination Date in respect of its Commitment in accordance with the Second Anniversary Extension Request, the Agent shall promptly notify the Company and the Lenders accordingly whereupon the Initial Termination Date for all the Lenders shall be extended with binding effect for all Parties to the First Extension Date or Second Extension Date (as applicable). |
(e) |
If, following a Second Anniversary Extension Request given by the Company pursuant to paragraph (a)(ii) or (iii) above, all Lenders notify the Agent that they are willing to extend the relevant Termination Date pursuant to paragraph (c) above, the Agent shall promptly notify the Company and the Lenders accordingly, whereupon the Termination Date shall be extended with binding effect for all Parties: |
(i) |
in the case of each First Anniversary Extending Lender by a further year, to the date falling two years after the Initial Termination Date (the Second Extension Date); or |
(ii) |
in the case of each First Anniversary Non-Extending Lender: |
(A) |
where the Company has requested an extension of the Initial Termination Date by one year, to the First Extension Date (each such Lender a Second Anniversary Limited Extending Lender); and |
(B) |
where the Company has requested an extension of the Initial Termination Date by two years, to the Second Extension Date. |
(f) |
If, following any notice by the Agent pursuant to paragraph (b) above, not all of the Lenders are willing to extend the relevant Termination Date pursuant to paragraph (c) above, the Agent shall promptly notify the Company and the Lenders accordingly, whereupon (subject to the further operation of Clause 3.3 (General Provisions)): |
(i) |
the then applicable Termination Date in respect of the Commitment of each Lender willing to extend such Termination Date (the Second Anniversary Extending Lenders) shall be |
55
extended with binding effect for all Parties in accordance with paragraph (e) above for all purposes hereof; and
(ii) |
the then applicable Termination Date in respect of the Commitment of each Lender which has (or is deemed to have) notified the Agent pursuant to paragraph (c) above that it is not willing to extend such Termination Date (the Second Anniversary Non-Extending Lenders) shall not be extended. |
(g) |
In respect of the making of any Loan for which the last day of the relevant Interest Period is to fall after the First Extension Date but prior to the Second Extension Date, unless, at the relevant time, all Lenders are Second Anniversary Extending Lenders (and none of these are Second Anniversary Limited Extending Lender), a Borrower shall be deemed to have addressed the relevant Utilisation Request only to those Second Anniversary Extending Lenders which are not Second Anniversary Limited Extending Lenders. |
3.3General Provisions
(a) |
Nothing herein shall oblige any Lender to agree to any extension of any Termination Date applicable to it and nothing herein shall oblige any Lender to agree to any assumption by it of any rights and obligations of any First Anniversary Non-Extending Lender or Second Anniversary Non-Extending Lender (each a Non-Extending Lender). |
(b) |
Subject to paragraph (c) below, the Commitment of each Lender that is a Non-Extending Lender shall be cancelled and reduced to zero on the relevant Initial Termination Date or First Extension Date (as applicable) and its participation in any Loans (and any relevant Ancillary Outstandings) together with any sums owed to it shall be repaid in full (including any interest accrued thereon) on such date, at which point each such Non-Extending Lender shall cease to be a Lender for the purposes of the Finance Documents and the relevant Interest Period applicable to such Loans shall not extend beyond any such Initial Termination Date or First Extension Date (as applicable). |
(c) |
The Company may require each First Anniversary Non-Extending Lender and each Second Anniversary Non-Extending Lender at any time following the (actual or deemed) refusal of such Non-Extending Lender (as the case may be) prior to the Termination Date to assign and transfer at par by assumption of contract (Vertragsübernahme) its rights and obligations under this Agreement (or any part thereof) in accordance with Clause 24 (Changes to the Lenders), to: |
(i) |
in the case of a First Anniversary Non-Extending Lender, any First Anniversary Extending Lender (or any of its Affiliates); and |
56
(ii) |
in the case of a Second Anniversary Non-Extending Lender, any Second Anniversary Extending Lender (or any of its Affiliates); |
or, in each case, to any other bank or financial institution selected by the Company and which, in each case, is not a member of the Group (each a New Extending Lender) that is willing to accept such assignment and transfer by assumption of contract in accordance with Clause 24 (Changes to the Lenders), and upon such assignment and transfer by assumption of contract the relevant New Extending Lender shall to the extent of such assignment and transfer become a First Anniversary Extending Lender or, after a Second Anniversary Extension Request has been given, a Second Anniversary Limited Extending Lender or a Second Anniversary Extending Lender, as the New Extending Lender may have agreed with the Company. The Non-Extending Lender, as the case may be, shall only be obliged to make an assignment and transfer by assumption of contract to a New Extending Lender (i) if it has completed all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to such assignment and transfer by assumption of contract to such New Extending Lender and (ii) to the extent such assignment and transfer by assumption of contract does not and will not conflict with any law or regulation applicable to it.
(d) |
The Company shall, at the same time as delivering an Extension Request, confirm to the Agent that: |
(i) |
all Repeating Representations are true and correct in all material respects by reference to the facts and circumstances then subsisting; and |
(ii) |
no Event of Default has occurred which is continuing on the date of the Extension Request or would result from the proposed Extension Request and relevant extension of the Termination Date therunder. |
(e) |
Any transfer of rights and obligations of a Non-Extending Lender pursuant to this Clause 3.3 shall be subject to the following conditions: |
(i) |
neither the Agent nor any Non-Extending Lender shall have any obligation to the Company to find a New Extending Lender; and |
(ii) |
in no event shall any Non-Extending Lender be required to pay or surrender to the New Extending Lender any of the fees received by the Non-Extending Lender pursuant to the Finance Documents; and |
57
(iii) |
the Agent being satisfied that it has complied with all “know your customer” requirements in relation to the assumption of the relevant Commitments by that New Extending Lender. The Agent shall promptly notify the Company and the New Extending Lender upon being so satisfied. |
(f) |
The Company may pay to any Lender that agrees to any extension of any Termination Date in respect of its Commitment pursuant to this Clause 3 a fee in the amount and at the times agreed between the Company and the respective Lender in a letter between the Company and such Lender setting out that fee, provided that all Lenders agreeing to any extension of any Termination Date pursuant to the same Extension Request shall be treated equally (on a pro rata basis) in respect of the payment of any such fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph (f). |
4. |
PURPOSE |
4.1Purpose
Each Borrower shall apply all amounts borrowed by it under the Facility towards the general corporate purposes of the Group, including refinancing of existing indebtedness and financing of investments and acquisitions, together with related transaction costs and expenses, but excluding the financing of acquisitions of any shares of the Company (share buy-back transactions).
4.2Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
5. |
CONDITIONS OF UTILISATION |
5.1Initial conditions precedent
(a) |
No Borrower may deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Part A (Conditions Precedent to Initial Utilisation) of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent. The Agent shall notify the Company and the Lenders promptly upon being so satisfied. |
(b) |
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any |
58
damages, costs or losses whatsoever as a result of giving any such notification.
5.2Further conditions precedent
Subject to Clause 5.1 (Initial conditions precedent), the Lenders will only be obliged to comply with Clause 6.4 (Lenders’ participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:
(a) |
in the case of a Rollover Loan, no Accelerated Default and no Material Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and |
(b) |
(other than in relation to Rollover Loans) the Repeating Representations made by each Obligor are true and correct in all material respects. |
5.3Maximum number of Loans
(a) |
A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation 11 or more Loans would be outstanding. |
(b) |
Any Separate Loan shall not be taken into account in this Clause 5.3. |
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SECTION 3
UTILISATION
6. |
UTILISATION |
6.1 |
Delivery of a Utilisation Request |
A Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.
6.2Completion of a Utilisation Request
(a) |
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless: |
(i) |
the proposed Utilisation Date is a Business Day within the Availability Period; |
(ii) |
the currency and amount of the Utilisation comply with Clause 6.3 (Currency and amount); and |
(iii) |
the proposed Interest Period complies with Clause 11 (Interest Periods). |
(b) |
Only one (1) Loan may be requested in each Utilisation Request. |
6.3Currency and amount
(a) |
The currency specified in a Utilisation Request must be euro. |
(b) |
The amount of the proposed Loan must be a minimum of EUR 5,000,000 or, if less, the Available Facility and in any event such that its Base Currency Amount is less than or equal to the Available Facility. |
6.4Lenders’ participation
(a) |
If the conditions set out in this Agreement have been met, and subject to Clause 8 (Repayment), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office. |
(b) |
The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan, subject to the provisions of Clause 3 (Extension Option). |
(c) |
If a Loan is made to repay Ancillary Outstandings, each Lender’s participation in that Loan will be in an amount (as determined by the Agent and subject to the provisions of Clause 3 (Extension Option)) which will result as nearly as possible in the aggregate amount of its |
60
participation in the Loans then outstanding bearing the same proportion to the aggregate amount of the Loans then outstanding as its Commitment bears to the Total Commitments.
(d) |
The Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 29.1 (Payments to the Agent) by the Specified Time. |
6.5Cancellation of Commitment
The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.
7. |
ANCILLARY FACILITIES |
7.1 |
Type of Facility |
An Ancillary Facility may be made available by way of (including, for the avoidance of doubt, any combination of the following):
(a) |
an overdraft facility; |
(b) |
a guarantee, bonding, documentary or stand-by letter of credit facility; |
(c) |
a short term loan facility; |
(d) |
an Umbrella Facility; |
(e) |
a foreign exchange facility; or |
(f) |
any other facility or accommodation required in connection with the business of the Group and which is agreed by the Company with an Ancillary Lender, |
in each case other than any derivatives and credit collateralisation guarantees (Kreditbesicherungsavale) facilities.
For the purposes of this Agreement (unless expressly provided otherwise therein), the relevant Ancillary Documents will determine whether the Umbrella Facility will be deemed utilised (i) in the amount of the Maximum Amount Guarantee provided in connection with the relevant Local Facility or Local Facilities or (ii) in the total amount of Local Facility or Local Facilities provided under such Maximum Amount Guarantee, as the case may be. If the relevant Ancillary Documents do not contain a corresponding regulation, alternative (i) applies. For the avoidance of doubt, (other than in respect of any commitment fee in respect of an Umbrella Facility or Ancillary Facility or any other fee payable in lieu of such commitment fee) no remuneration will result from this deemed utilisation and any renumeration will only accrue if the relevant Local Facility is utilised in accordance with its terms.
61
7.2Availability
(a) |
If the Company and a Lender agree and except as otherwise provided in this Agreement, the Lender may provide all or part of its Commitment as an Ancillary Facility, provided that the aggregate amount of all Ancillary Commitments must not at any time exceed the Base Currency equivalent of EUR 100,000,000. No Lender shall have any obligation to provide all or part of its Commitment as an Ancillary Facility. |
(b) |
An Ancillary Facility shall not be made available unless, not later than five (5) Business Days (or, with respect to any Ancillary Facility to be made available as of the first Utilisation Date, not later than one (1) Business Day) prior to the Ancillary Commencement Date for an Ancillary Facility (or such other period as may be agreed between the Agent and the Company), the Agent has received from the Company: |
(i) |
a notice in writing of the establishment of an Ancillary Facility and specifying: |
(A) |
the proposed Borrower or an Affiliate thereof which may use the Ancillary Facility; |
(B) |
the proposed Ancillary Commencement Date and expiry date of the Ancillary Facility; |
(C) |
the proposed type of Ancillary Facility to be provided; |
(D) |
the proposed Ancillary Lender; |
(E) |
the proposed Ancillary Commitment, the maximum amount in the Base Currency of the Ancillary Facility and, in the case of a Multi-account Overdraft, its Designated Gross Amount and its Designated Net Amount; and |
(F) |
the proposed currency of the Ancillary Facility (if not denominated in the Base Currency); and |
(ii) |
any other information (other than the pricing unless required to facilitate an adjustment of Ancillary Facilities in accordance with Clause 7.7 (Adjustment for Ancillary Facilities upon acceleration)) which the Agent may reasonably request in connection with the Ancillary Facility. |
62
(c) |
The Agent shall promptly notify the Company, the Ancillary Lender and the other Lenders of the establishment of an Ancillary Facility. |
(d) |
Subject to compliance with paragraph (b) above: |
(i) |
the Lender or as the case may be Affiliate of a Lender concerned will become an Ancillary Lender; and |
(ii)the Ancillary Facility will be available,
with effect from the date agreed by the Company and the Ancillary Lender.
7.3Terms of Ancillary Facilities
(a) |
Except as provided below, the terms of any Ancillary Facility will be those agreed by the Ancillary Lender and the Company. |
(b) |
Those terms: |
(i) |
must be based upon normal commercial terms at that time (except as varied by this Agreement); |
(ii) |
may allow only Borrowers (and Affiliates of Borrowers pursuant to Clause 7.11 (Affiliates of Borrowers)) to use the Ancillary Facility; |
(iii) |
may not allow the Ancillary Outstandings to exceed the Ancillary Commitment; |
(iv) |
may not allow the Ancillary Commitment of a Lender to exceed that Lender’s Available Commitment relating to the Facility (before taking into account the effect of the Ancillary Facility on that Available Commitment); and |
(v) |
must require that the Ancillary Commitment is reduced to zero, and that all Ancillary Outstandings are repaid not later than the Termination Date applicable to the Facility (or such earlier date as the Commitments of the relevant Ancillary Lender (or its Affiliate) is reduced to zero). |
(c) |
If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for: |
(i) |
Clause 32.3 (Day count convention and interest calculation) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility; |
63
(ii) |
an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent required to permit the netting of balances on those accounts; and |
(iii) |
where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document in which case that term of this Agreement shall not prevail. |
(d) |
Interest, commission and fees on Ancillary Facilities are dealt with in Clause 13.4 (Interest, commission and fees on Ancillary Facilities). |
7.4Repayment of Ancillary Facility
(a) |
An Ancillary Facility shall cease to be available on the Termination Date applicable to the Facility or such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of this Agreement. |
(b) |
If an Ancillary Facility expires in accordance with its terms the Ancillary Commitment of the Ancillary Lender shall be reduced to zero (and its Available Commitment under the Facility shall be increased accordingly, provided that any outstanding amounts under the expired Ancillary Facility have been (re)paid in full at such time). |
(c) |
No Ancillary Lender may demand repayment or prepayment of any Ancillary Outstandings prior to the expiry date of the relevant Ancillary Facility unless: |
(i) |
required to reduce the Gross Outstandings of a Multi-account Overdraft to or towards an amount equal to its Net Outstandings; |
(ii) |
the Total Commitments have been cancelled in full, or all outstanding Utilisations under the Facility have become due and payable or the Agent has declared all outstanding Loans immediately due and payable, in each case in accordance with the terms of this Agreement; |
(iii) |
it becomes unlawful in any applicable jurisdiction for the Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in its Ancillary Facility (or it becomes unlawful for any Affiliate of the Ancillary Lender for the Ancillary Lender to do so); or |
(iv) |
both: |
64
would not prevent the relevant Borrower funding the repayment of those Ancillary Outstandings in full by way of a Utilisation under the Facility.
(d) |
If a Utilisation under the Facility is made to repay Ancillary Outstandings in full, the relevant Ancillary Commitment shall be reduced to zero. |
7.5Limitation on Ancillary Outstandings
Each Borrower shall procure that:
(a) |
the Ancillary Outstandings under any Ancillary Facility shall not exceed the Ancillary Commitment applicable to that Ancillary Facility; and |
(b) |
in relation to a Multi-account Overdraft: |
(i) |
the Ancillary Outstandings shall not exceed the Designated Net Amount applicable to that Multi-account Overdraft; and |
(ii) |
the Gross Outstandings shall not exceed the Designated Gross Amount applicable to that Multi-account Overdraft. |
7.6Local Facilities
(a) |
A Local Borrower may utilise a Local Facility in accordance with the requirements of this Agreement with the consent of the relevant Ancillary Lender. A Local Facility shall only be provided under an Umbrella Facility established as an Ancillary Facility under the Facility if it is collateralised by a Maximum Amount Guarantee and such Local Facility may be made available by way of: |
(i) |
a cash facility (in current account); |
(ii) |
a guarantee, bonding, documentary or stand-by letter of credit facility; |
(iii) |
a short term loan facility; |
(iv) |
a long term loan facility; |
(v) |
a foreign exchange facility; or |
(vi) |
any other facility or accommodation required in connection with the business of the Group and which is agreed by the Company with an Ancillary Lender, |
65
in each case other than any derivatives and credit collateralisation guarantees (Kreditbesicherungsavale) facilities). Except as set out in this Clause 7 (Ancillary Facilities), Local Facilities shall not be subject to the provisions of this Agreement, but shall exclusively be governed by the terms agreed between the relevant Local Lender and the relevant Local Borrower.
(b) |
The Ancillary Lender of an Umbrella Facility must ensure that the term of the corresponding Local Facility does not exceed the term of the Umbrella Facility. |
(c) |
Local Facilities must provide, amongst other things, for a termination right of the Local Lender in the event of a termination, cancellation or acceleration pursuant to Clause 23.17 (Acceleration), to the extent legally permitted. |
(d) |
A Local Facility which may be utilised by way of letters of guarantee or the opening of documentary letters of credit must provide that any letters of guarantee provided or any documentary letters of credit opened thereunder must, at their due date, be cash-collateralised or, subject to the consent of the relevant Local Lender and the Ancillary Lender of whom it is an Affiliate, be secured by third party guarantees securing the claim for cash-collateralisation. |
(e) |
No member of the Group that is not a Borrower shall derive any rights to utilise the Facility under this Agreement from the fact that it is a borrower under a Local Facility. |
(f) |
Interest, commission and fees on Local Facilities may be agreed between the Local Lender and the Local Borrower in their free discretion, provided that the terms of any Local Facility must be based upon normal commercial terms at that time. |
7.7Adjustment for Ancillary Facilities upon acceleration
(a)In this Clause 7.7:
(i) |
Facility Outstandings means, in relation to a Lender, the aggregate of the equivalent in the Base Currency of: |
(A) |
its participation in each Loan then outstanding (together with the aggregate amount of all accrued interest, fees and commission owed to it as a Lender under the Facility; and |
(B) |
if the Lender is also an Ancillary Lender, the Ancillary Outstandings in respect of Ancillary Facilities provided by that Ancillary Lender (or by its Affiliate) (together |
66
with the aggregate amount of all accrued interest, fees and commission owed to it (or to its Affiliate) as an Ancillary Lender in respect of the Ancillary Facility), including, for the avoidance of doubt, the face amount of any Maximum Amount Guarantee provided in connection with the relevant Local Facility or Local Facilities, as the case may be; and
(ii) |
Total Facility Outstandings means the aggregate of all Facility Outstandings. |
(b) |
If (i) the Agent exercises any of its rights under Clause 23.17 (Acceleration) (other than declaring Loans to be due on demand), (ii) any borrower under an Ancillary Facility does not pay on the due date any amount payable under the relevant Ancillary Facility, (iii) any Facility Outstandings are not repaid on the Termination Date or (iv) any of the events described under Clause 23.6 (Insolvency) occurs in relation to any borrower under an Ancillary Facility, each Lender and each Ancillary Lender shall (subject to paragraph (g) below) promptly adjust (by making or receiving (as the case may be) corresponding transfers of rights and obligations under the Finance Documents relating to Facility Outstandings their claims in respect of amounts outstanding to them under the Facility and each Ancillary Facility (including any relevant Maximum Amount Guarantees) to the extent necessary to ensure that after such transfers the Facility Outstandings of each Lender bear the same proportion to the Total Facility Outstandings as such Lender’s Commitment bears to the Total Commitments, each as at the date the Agent exercises the relevant right(s) under Clause 23.17 (Acceleration). To the extent a Maximum Amount Guarantee has been issued for the benefit of an Affiliate of an Ancillary Lender, such Ancillary Lender will procure that the transfers required under the preceding sentence are effected by its relevant Affiliate. |
(c) |
If an amount outstanding under an Ancillary Facility (and/or a Maximum Amount Guarantee) is a contingent liability and that contingent liability becomes an actual liability or is reduced to zero after the original adjustment is made under paragraph (b) above, then each Lender and each Ancillary Lender will make a further adjustment (by making or receiving (as the case may be) corresponding transfers of rights and obligations under the Finance Documents relating to Facility Outstandings to the extent necessary) to put themselves in the position they would have been in had the original adjustment been determined by reference to the actual liability or, as the case may be, zero liability and not the contingent liability. |
67
(d) |
Any transfer of rights and obligations relating to Facility Outstandings made pursuant to this Clause7.7 shall be made for a purchase price in cash, payable at the time of transfer, in an amount equal to those Facility Outstandings (less any accrued interest, fees and commission to which the transferor will remain entitled to receive notwithstanding that transfer pursuant to Clause 24.8 (Pro rata interest settlement)). |
(e) |
Prior to the application of the provisions of paragraph (b) above, an Ancillary Lender, that has provided a Multi-account Overdraft, shall set-off any Available Credit Balance on any account comprised in that Multi-account Overdraft. |
(f) |
All calculations to be made pursuant to this Clause 7.7 shall be made by the Agent based upon information provided to it by the Lenders and Ancillary Lenders and the Agent’s Spot Rate of Exchange. The settlement of balances under this Clause 7.7 will exclusively be made between the relevant Lenders under the Facility, and not between the Local Lenders. |
(g) |
This Clause 7.7 shall not oblige any Lender to accept the transfer of a claim relating to an amount outstanding under an Ancillary Facility which is not denominated (pursuant to the relevant Finance Document) in either the Base Currency or in another currency which is acceptable to that Lender. |
7.8Allocation of Maximum Amount Guarantee
If, in relation to an Umbrella Facility, a Maximum Amount Guarantee has been issued by the Company and payment has been demanded from the Company but the Company has not met its obligations under such a Maximum Amount Guarantee, any remaining claims under such a Maximum Amount Guarantee will be subject to the initial adjustments by corresponding transfers (to the extent necessary) for the purposes of the adjustment under Clause 7.7 (Adjustment for Ancillary Facilities upon acceleration) (the Initial Adjustments). If and to the extent the Company has met its obligations under such Maximum Amount Guarantee only after the Initial Adjustments have been completed because of such obligations only having become due after such Initial Adjustments, be it due to local law requirements in the jurisdiction of the borrower under the Local Facility or due to any other reason, additional adjustments by corresponding transfers will be completed, with any such additional adjustment now taking into account the fulfilled obligations under such Maximum Amount Guarantee (the Additional Adjustments). Any Additional Adjustment will only be completed within six (6) months after the Termination Date; afterwards, an Additional Adjustment will not take place anymore. If, following an Initial Adjustment or the last Additional Adjustment, payments in relation to the Maximum Amount Guarantee (or Local Facility) are made, the Ancillary Lender providing the relevant Umbrella Facility is required to reimburse all other relevant Lenders on a pro rata basis.
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7.9Information
Each Borrower and each Ancillary Lender shall, promptly upon request by the Agent, supply the Agent with any information relating to the operation of an Ancillary Facility (including the Ancillary Outstandings) as the Agent may reasonably request from time to time. Each Borrower consents to all such information being released to the Agent and the other Finance Parties.
7.10Affiliates of Lenders as Ancillary Lenders
(a) |
Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender. In such case, the Lender and its Affiliate shall be treated as a single Lender whose Commitment is the amount set out opposite the relevant Lender’s name in Schedule 1 (The Original Lenders) and/or the amount of any Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement. |
(b) |
The Company shall specify any relevant Affiliate of a Lender in any notice delivered by the Company to the Agent pursuant to paragraph (b)(i) of Clause 7.2 (Availability). |
(c) |
An Affiliate of a Lender which becomes an Ancillary Lender shall accede to this Agreement and the Guarantee and Security Trust Agreement as an Ancillary Lender and any person which so accedes to this Agreement and the Guarantee and Security Trust Agreement shall, at the same time, become a Party as an “Ancillary Lender” in accordance with clause 13.6 (Creditor Accession Undertaking) of the Guarantee and Security Trust Agreement. |
(d) |
If a Lender assigns all of its rights and benefits or assigns and transfers by assumption of contract (Vertragsübernahme) all of its rights and obligations to a New Lender, its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document. |
(e) |
Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Lender and the relevant Ancillary Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate. |
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7.11Affiliates of Borrowers
(a) |
Subject to the terms of this Agreement any member of the Group which is an Affiliate of a Borrower, may, with the approval of the relevant Lender, become a borrower with respect to an Ancillary Facility. |
(b) |
The Company shall specify any relevant Affiliate of a Borrower in any notice delivered by the Company to the Agent pursuant to paragraph (b)(i) of Clause 7.2 (Availability). |
(c) |
If: |
(i) |
a Borrower ceases to be a Borrower under this Agreement in accordance with Clause 25.3 (Resignation of a Borrower); or |
(ii) |
a member of the Group ceases to be (A) a member of the Group or (B) an Affiliate of a Borrower, |
such member of the Group (or former member of the Group, as applicable) shall in each case cease to have any rights under this Agreement or any Ancillary Document.
(d) |
Where this Agreement or any other Finance Document imposes an obligation on a “borrower” or “Borrower” under an Ancillary Facility and the relevant borrower or Borrower is a member of the Group which is not a party to that Finance Document, the Company shall ensure that the obligation is performed by the relevant borrower or Borrower. |
(e) |
Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Finance Document or Ancillary Document. |
7.12Facility Commitment amounts
Notwithstanding any other term of this Agreement each Lender shall ensure that at all times its Commitment is not less than:
(a) |
its Ancillary Commitment; or |
(b) |
the Ancillary Commitment of its Affiliate. |
7.13Amendments and waivers – Ancillary Facilities
No amendment or waiver of a term of any Ancillary Facility shall require the consent of any Finance Party other than the relevant Ancillary Lender unless such amendment or waiver itself relates to or gives rise to a matter which would require an amendment of or under this Agreement (including, for the avoidance of doubt, under this Clause 7) or the Guarantee and Security Trust Agreement. In such a case, the provisions of this Agreement with regard to amendments and waivers will apply.
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
8. |
REPAYMENT |
(a) |
Subject to paragraph (c) below, each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period. |
(b) |
Without prejudice to each Borrower’s obligation under paragraph (a) above, if: |
(i) |
one or more Loans are to be made available to a Borrower: |
(A) |
on the same day that a maturing Loan is due to be repaid by that Borrower; and |
(B) |
in whole or in part for the purpose of refinancing the maturing Loan; and |
(ii) |
the proportion borne by each Lender’s participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender’s participation in the new Loans to the aggregate amount of those new Loans, |
the aggregate amount of the new Loans shall, unless the Company notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Loan so that:
(C) |
if the amount of the maturing Loan exceeds the aggregate amount of the new Loans: |
(1) |
the relevant Borrower will only be required to make a payment under Clause 29.1 (Payments to the Agent) in an amount in the relevant currency equal to that excess; and |
(2) |
each Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Loan and that Lender will not be required to make a payment under Clause 29.1 (Payments to the Agent) in respect of its participation in the new Loans; and |
(D) |
if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans: |
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(1) |
the relevant Borrower will not be required to make a payment under Clause 29.1 (Payments to the Agent); and |
(2) |
each Lender will be required to make a payment under Clause 29.1 (Payments to the Agent) in respect of its participation in the new Loans only to the extent that its participation in the new Loans exceeds that Lender’s participation in the maturing Loan and the remainder of that Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Loan. |
(c) |
At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be automatically extended to the Termination Date and will be treated as separate Loans (the Separate Loans) denominated in the currency in which the relevant participations are outstanding. |
(d) |
A Borrower to whom a Separate Loan is outstanding may prepay that Loan by giving not less than five (5) Business Days’ prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt. |
(e) |
Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the relevant Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Agent (for the account of that Defaulting Lender) on the last day of each Interest Period of that Loan. |
(f) |
The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (c) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan. |
9. |
PREPAYMENT AND CANCELLATION |
9.1 |
Illegality |
If, in any applicable jurisdiction, it becomes unlawful for any Lender or Ancillary Lender to perform any of its obligations as contemplated by this Agreement, any Ancillary Document or any other Finance Document or to fund or maintain its participation in any Loan or it becomes unlawful for any Affiliate of a Lender or Ancillary Lender for that Lender or Ancillary Lender to do so:
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(a) |
that Lender or Ancillary Lender shall promptly notify the Agent upon becoming aware of that event; |
(b) |
upon the Agent notifying the Company, the Available Commitment of that Lender and the undrawn Ancillary Commitment of the Ancillary Lender will be immediately cancelled, provided that if it is only unlawful for the Ancillary Lender to perform its obligations as described above, then only the Ancillary Commitments of such Ancillary Lender will be immediately cancelled; and |
(c) |
to the extent that the Lender’s participation has not been transferred pursuant to paragraph (e) of Clause 9.5 (Right of replacement or repayment and cancellation in relation to a single Lender), each Borrower shall repay that Lender’s and Ancillary Lender’s participation in the Loans and Ancillary Outstandings made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender or Ancillary Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment(s) and Ancillary Lender’s Ancillary Commitments shall be immediately cancelled in the amount of the participations repaid, provided that if it is only unlawful for the Ancillary Lender to perform its obligations as described above and to the extent that such Ancillary Lender’s participation has not been transferred pursuant to paragraph (e) of Clause 9.5 (Right of replacement or repayment and cancellation in relation to a single Lender), each Borrower shall only repay that Ancillary Lender’s participation in the Ancillary Outstandings made to that Borrower on the date specified by the relevant Ancillary Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Ancillary Lender’s corresponding Ancillary Commitments shall be immediately cancelled in the amount of the participations repaid. |
9.2Change of control
(a) |
For the purposes of this Clause 9.2: |
acting in concert means “gemeinsam handelnd” within the meaning of section 2(5) of the German Securities Acquisition and Take Over Act (Wertpapiererwerbs- und Übernahmegesetz).
Change of Control means:
(1)any person or group of persons acting in concert gaining direct or indirect Control of the Company; or (2)the sale (in one transaction or a series of related transactions) of all or substantially all of the assets of the Group.
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Control means (A) the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to cast, or control the casting of, more than 50 per cent. of the maximum number of votes that might be cast at a general meeting of the Company, or (B) ownership of more than 50 per cent. of the issued share capital of the Company.
(b) |
If a Change of Control occurs: |
(i) |
the Company shall promptly notify the Agent upon becoming aware of that event; |
(ii) |
upon receipt of a notice from the Company pursuant to paragraph (i) above, the Agent shall promptly notify the Lenders thereof; |
(iii) |
the Lenders will negotiate in good faith for a period of not more than fifteen (15) Business Days of the Company notifying the Agent pursuant to paragraph (i) or the Agent notifying the Company of becoming aware of a Change of Control above, with a view to achieving the continuation of the Facility (the Negotiation Period); |
(iv) |
a Lender shall not be obliged to fund any Utilisation during the Negotiation Period and during the twenty (20) Business Days period following immediately after the end of the Negotiation Period (except for a Rollover Loan) and shall not be obliged to fund any Utilisation at any time after it has given notice to the Agent pursuant to paragraph (v) below (including any Rollover Loan); |
(v) |
if a Lender so requires after the expiry of the Negotiation Period and notifies the Agent within twenty (20) Business Days after the end of the Negotiation Period, the Agent shall, by not less than fifteen (15) Business Days’ notice to the Company (the Notice Period), cancel each Available Commitment of that Lender and declare the participation of that Lender in all Loans and Ancillary Outstandings, together with accrued interest, fees and all other amounts accrued or outstanding under the Finance Documents immediately due and payable, whereupon, and to the extent that that Lender has then not been replaced pursuant to paragraph (c) below at the end of the Notice Period, each such Available Commitment will be immediately cancelled, any Commitment and Ancillary Commitment of that Lender shall immediately cease to be available for further utilisation and all |
74
such participations in outstanding Loans, Ancillary Outstandings and amounts will become immediately due and payable.
(c) |
The Company may replace any Lender which has given notice to the Agent in accordance with paragraph (b)(v) above pursuant to paragraphs (e) to (g) of Clause 9.5 (Right of replacement or repayment and cancellation in relation to a single Lender) which shall apply mutatis mutandis, provided that the transfer must take place prior to the end of the Notice Period. |
9.3 |
Voluntary cancellation |
The Company may, if it gives the Agent not less than three (3) Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount and integral multiple of EUR 5,000,000) of the Available Facility. Any cancellation under this Clause 9.3 shall reduce the Commitments of the Lenders rateably.
9.4 |
Voluntary prepayment |
A Borrower to which a Loan has been made may, if it gives the Agent not less than three (3) Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice prepay the whole or any part of any Loan (but, if in part, being an amount that reduces the Base Currency Amount of the Loan by a minimum amount of EUR 5,000,000 and an integral multiple of EUR 5,000,000). Any prepayment of a Loan pursuant to this Clause 9.4 shall be applied pro rata to each Lender’s participation in that Loan.
9.5 |
Right of replacement or repayment and cancellation in relation to a single Lender |
(a)If:
(i) |
any sum payable to any Lender by an Obligor is required to be increased under paragraph (d) of Clause 14.2 (Tax gross-up); or |
(ii) |
any Lender claims indemnification from the Company under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased costs); or |
(iii) |
an amount payable by an Obligor under a Finance Document to a Lender (other than an Original Lender) may not be deducted as a business expense for German income tax purposes because the relevant Lender is a German Non-Cooperative Jurisdiction Finance Party; or |
(iv) |
any sum payable to any Lender (other than an Original Lender) by a French Guarantor is not or will not be treated as a deductible charge or expense for French tax purposes (at the time the |
75
relevant corporate income tax is calculated) for that French Guarantor by reasons of that amount being:
(A) |
paid or accured to a Lender (other than an Original Lender) incorporated, domiciled, established or acting through a Facility Office situated in a French Non-Cooperative Jurisdiction; or |
(B) |
paid to an account opened in the name of or for the benefit of that Lender (other than an Original Lender) in a financial institution situated in a French Non-Cooperative Jurisdiction, |
the Company may, whilst the circumstance giving rise to the non-deductibility or the requirement for that increase or indemnification continues, (i) give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender’s participation in the Loans or (ii) give the Agent notice of its intention to replace that Lender in accordance with paragraph (e) below.
(b) |
If a Lender becomes a Non-Consenting Lender the Company may, whilst the circumstance giving rise to that Lender being a Non-Consenting Lender continues, give the Agent notice of its intention to replace that Lender in accordance with paragraph (e) below, provided that any such replacement of a Non-Consenting Lender shall occur within three (3) months of the reply date of the relevant amendment or waiver request. |
(c) |
On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Commitment of that Lender shall be immediately reduced to zero. |
(d) |
On the last day of each Interest Period which ends after the Company has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Loan is outstanding shall repay that Lender’s participation in that Loan and that Lender’s corresponding Commitment shall be immediately cancelled in the amount of the participations repaid. |
(e) |
If: |
(i) |
any of the circumstances set out in paragraphs (a) or (b) above apply to a Lender; or |
(ii) |
an Obligor becomes obliged to pay any amount in accordance with Clause 9.1 (Illegality) to any Lender, |
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the Company may, on five (5) Business Days’ prior notice to the Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) assign and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to a Lender or an Eligible Institution selected by the Company (each of which shall not be a member of the Group) which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 24 (Changes to the Lenders) for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest (to the extent that the Agent has not given a notification under Clause 24.8 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents.
(f) |
The replacement of a Lender pursuant to paragraph (e) above shall be subject to the following conditions: |
(i) |
the Company shall have no right to replace the Agent; |
(ii) |
neither the Agent nor any Lender shall have any obligation to find a replacement Lender or to accept any such assignment or transfer to itself; |
(iii) |
in no event shall the Lender replaced under paragraph (e) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; |
(iv) |
the Lender shall only be obliged to assign and transfer its rights and obligations pursuant to paragraph (e) above once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer; and |
(v) |
in respect of a replacement of a Non-Consenting Lender, such replacement to have occurred within three (3) months from the reply date of the relevant amendment or waiver request. |
(g) |
A Lender shall perform the checks described in paragraph (f)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (e) above and shall notify the Agent and the Company when it is satisfied that it has complied with those checks. |
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(h) |
Right of cancellation in relation to a Defaulting Lender |
(i) |
If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent not less than three (3) Business Days’ notice of cancellation of the Available Commitment of that Lender. |
(ii) |
On the notice referred to in paragraph (i) above becoming effective, the Available Commitment of the Defaulting Lender shall immediately be reduced to zero. |
(iii) |
The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (i) above, notify all the Lenders. |
9.6Restrictions
(a) |
Any notice of cancellation or prepayment given by any Party under this Clause 9 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment. |
(b) |
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty. |
(c) |
Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement. |
(d) |
The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement. |
(e) |
Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated. |
(f) |
If the Agent receives a notice under this Clause 9 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate. |
(g) |
If all or part of any Lender’s participation in a Loan is repaid or prepaid and is not available for redrawing (other than by operation of Clause 5.2 (Further conditions precedent) or Clause 5.3 (Maximum number of Loans)), an amount of that Lender’s Commitment (equal to the Base Currency Amount of the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment. |
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SECTION 5
COSTS OF UTILISATION
10. |
INTEREST |
10.1 |
Calculation of interest |
The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:
(a)Margin; and
(b)EURIBOR.
10.2 |
Payment of interest |
The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six-monthly intervals after the first day of the Interest Period).
10.3 |
Initial Margin and Margin adjustment |
(a) |
The Margin as at the date of this Agreement applicable to a Loan is 2.65 per cent. per annum. |
(b) |
After the financial quarter ending on 31 December 2024, the Margin shall vary in accordance with the grid set out below by reference to the Leverage with no limits on the reduction or increase to be effected on any single reset date: |
Leverage |
Margin (per cent. per annum) |
Greater than 3.50:1 |
2.85 |
Greater than 3.00:1 but less than or equal to 3.50:1 |
2.65 |
Greater than 2.50:1 but less than or equal to 3.00:1 |
2.40 |
Greater than 2.00:1 but less than or equal to 2.50:1 |
2.15 |
Greater than 1.50:1 but less than or equal to 2.00:1 |
1.95 |
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Leverage |
Margin (per cent. per annum) |
Greater than 1.00:1 but less than or equal to 1.50:1 |
1.75 |
Less than or equal to 1.00:1 |
1.55 |
provided that:
(i) |
any adjustment of the Margin will take effect on the fifth (5th) Business Day after (and including) the date on which the Agent receives the Compliance Certificate pursuant to Clause 20.2 (Compliance Certificate and Material Subsidiaries list) with the relevant set of financial statements (the reset date) and for the first time on the reset date after delivery of the Compliance Certificate supplied with the Company’s financial statements delivered pursuant to paragraph (a)(i) of Clause 20.1 (Financial statements) for the financial year ending on 31 December 2024; |
(ii) |
the Margin in relation to any Unpaid Sum shall be the highest rate per annum specified in the grid above; |
(iii) |
if and for so long as an Event of Default has occurred and is continuing, the Margin shall revert to its highest level set out in the grid above for a Loan under the Facility. Once that Event of Default is remedied or waived, the Margin will be recalculated on the basis of the most recently delivered quarterly consolidated financial statements and this Clause 10.3 (on the assumption that as at the date such quarterly consolidated financial statements were delivered no Event of Default had occurred or was continuing) with effect from the date of that remedy or waiver; and |
(iv) |
if following receipt by the Agent of the annual audited consolidated financial statements of the Group and the related Compliance Certificate, those statements and Compliance Certificate do not confirm the basis for the Margin applied during the financial year to which those financial statements and Compliance Certificate relate (the relevant period), then: |
(A) |
if a higher rate of Margin should have applied for any part of the relevant period, the relevant Borrower shall pay to the Agent the amount necessary to put the Lenders |
80
in the position they would have been in had the appropriate rate of Margin applied for that part of the relevant period; or
(B) |
if a lower rate of Margin should have applied for any part of the relevant period, then the overpayment to a Lender shall be credited against future payments to be made by the Borrowers to that Lender but only to the extent that it has actually received a too high Margin (provided that any such reduction shall only apply to the extent the Lenders which received the overpayment of interest remain Lenders at the date of such reduction and each such remaining Lender will only bear the deduction of the overpayment it received itself). |
10.4ESG Margin adjustment
(a) |
The Company and the Lenders agree to negotiate in good faith and to implement by no later than the date falling twelve (12) months after the date of this Agreement, an ESG framework and related testing metrics to be included in this Agreement to adjust the Margin based on the Group achieving certain ESG-related metrics or target levels for ESG-related key performance indicators tested on an annual basis, provided that at no time will the Margin be increased or decreased by more than 5 basis points per annum as a result of the application of such ESG framework (the ESG-Framework) and further provided that such ESG-Framework shall not be implemented without the prior consent of all the Lenders. |
(b) |
The Parties agree that prior to the agreement pursuant to paragraph (a) above, the Facility shall not be considered to be a sustainability linked credit facility and will therefore not appear as such in any communication made by any Party in relation to the Facility. |
10.5Default interest and lump sum damages
(a) |
If an Obligor fails to pay any amount (other than interest) payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (d) below, is 1 per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). |
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(b) |
If an Obligor fails to pay interest payable by it under the Finance Documents on its due date, lump sum damages (pauschalierter Schadensersatz) shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (d) below, is 1 per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). In the case of lump sum damages, the relevant Obligor shall be free to prove that no damages have arisen or that damages have not arisen in the asserted amount and any Finance Party shall be entitled to prove that further damages have arisen. |
(c) |
Any interest or lump sum accruing under this Clause 10.5 shall be immediately payable by the Obligor on demand by the Agent. |
(d) |
If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan: |
(i) |
the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and |
(ii) |
the rate of interest applying to the overdue amount during that first Interest Period shall be 1 per cent. per annum higher than the rate which would have applied if the overdue amount had not become due. |
10.6Notifications
(a) |
The Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of interest relating to a Loan and shall provide to the Company: |
(i) |
a calculation of the interest which is projected to accrue on any such Loan during its Interest Period no later than five (5) Business Days after the first day of such Interest Period; and |
(ii) |
a reasonably detailed calculation of any accrued interest payable on any such Loan no later than two (2) Business Days prior to the due date for payment thereof. |
(b) |
The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan. |
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(c) |
This Clause 10.6 (Notifications) shall not require the Agent to make any notifications to any Party on a day which is not a Business Day. |
10.7Compounding of Interest Due by a French Guarantor
Any interest due by any French Guarantor and unpaid under the Finance Documents (including any default interest accrued pursuant to Clause 10.5 above) shall be compounded on an annual basis in accordance with the provisions of article 1343-2 of the French Civil Code.
10.8Italian Usury Law
(a) |
The rate of interest applicable to any Loan to any Italian Borrower under this Agreement (including the relevant component of any applicable fee and expense) determined as of the date of signing of this Agreement is considered in good faith by the Parties to be in compliance with the Italian Usury Law. |
(b) |
In any event, the Parties agree and accept that if, pursuant to a change in law or in the official interpretation of Italian Usury Law, the rate of interest (including default interest, fees, charges, expenses and other costs and any other form of compensation) applicable to any Loan made available to an Italian Borrower, at any time is deemed to exceed the maximum rate permitted by Italian Usury Law, then the relevant interest rate or default rate applicable to such Italian Borrower shall be automatically reduced to the maximum admissible interest rate pursuant to such legislation, for the period during which it is not possible to apply the interest rate as originally agreed in this Agreement. |
11. |
INTEREST PERIODS |
11.1 |
Selection of Interest Periods |
(a) |
A Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan. |
(b) |
Subject to this Clause 11, a Borrower (or the Company) may select an Interest Period of one (1), three (3) or six (6) Months or of any other period agreed between the Company, the Agent and all the Lenders, provided that the Company may chose a shortened interest period in respect of the first Utilisation so that such Interest Period ends on a Quarter Date. |
(c) |
An Interest Period for a Loan shall not extend beyond the Termination Date. |
(d) |
Each Interest Period for a Loan shall start on the Utilisation Date. |
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(e) |
A Loan has one Interest Period only. |
11.2 |
Non-Business Days |
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
12. |
CHANGES TO THE CALCULATION OF INTEREST |
12.1 |
Unavailability of Screen Rate |
(a) |
Interpolated Screen Rate: If no Screen Rate is available for EURIBOR for the Interest Period of a Loan, the applicable EURIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan. |
(b) |
Historic Screen Rate: If no Screen Rate is available for EURIBOR for: |
(i)the currency of a Loan; or
(ii)the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,
the applicable EURIBOR shall be the Historic Screen Rate for that Loan.
(c) |
Interpolated Historic Screen Rate: If paragraph (b) above applies but no Historic Screen Rate is available for the Interest Period of the Loan, the applicable EURIBOR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period of that Loan. |
(d) |
Cost of funds: If paragraph (c) above applies but it is not possible to calculate the Interpolated Historic Screen Rate there shall be no EURIBOR for that Loan and Clause 12.3 (Cost of funds) shall apply to that Loan for that Interest Period. |
12.2 |
Market disruption |
If before close of business in Düsseldorf on the Quotation Day for the relevant Interest Period the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of EURIBOR, then Clause 12.3 (Cost of funds) shall apply to that Loan for the relevant Interest Period.
12.3 |
Cost of funds |
(a) |
If this Clause 12.3 applies to a Loan for an Interest Period, Clause 10.1 (Calculation of interest ) shall not apply to that Loan for that Interest |
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Period and the rate of interest on each Lender’s share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:
(i) |
the Margin; and |
(ii) |
the rate notified to the Agent by that Lender as soon as practicable and in any event, within two (2) Business Days of the first day of that Interest Period (or, if earlier, on the date falling five (5) Business Days before the date on which interest is due to be paid in respect of that Interest Period) to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select, provided that if such rate is below zero, it shall be deemed to be zero. |
(b) |
If this Clause 12.3 applies and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than thirty (30) days) with a view to agreeing a substitute basis for determining the rate of interest. |
(c) |
Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties. |
(d) |
If this Clause 12.3 applies pursuant to Clause 12.2 (Market disruption) and: |
(i) |
a Lender’s Funding Rate is less than EURIBOR; or |
(ii) |
a Lender does not supply a quotation by the time specified in paragraph (a)(ii) above, |
the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be EURIBOR.
(e) |
If this Clause 12.3 applies but any Lender does not supply a quotation by the time specified in paragraph (a)(ii) above, the rate of interest shall be calculated on the basis of the quotations of the remaining Lenders. |
(f) |
If this Clause 12.3 applies the Agent shall, as soon as is practicable, notify the Company. |
12.4Break Costs
(a) |
Each Borrower shall, within three (3) Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to |
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all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
(b) |
Each Lender shall, as soon as reasonably practicable after a demand by the Company (through the Agent), provide a certificate confirming the amount of its Break Costs, setting out its calculation in reasonable detail, for any Interest Period in which they accrue (but without requiring any such Lender to disclose any confidential or proprietary information in relation to the organisation of its affairs or any business secrets). |
13. |
FEES |
13.1 |
Commitment fee |
(a) |
The Company shall pay to the Agent (for the account of each Lender) a commitment fee in the Base Currency computed at the rate of 35 per cent. of the Margin then applicable to Loans on that Lender’s Available Commitment for the period from and including the date of this Agreement until the end of the Availability Period. |
(b) |
The commitment fee accrued shall be calculated by the Agent for each period ending on the last day of each calendar quarter which ends during the relevant Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective. |
(c) |
The Agent shall notify the Company of the commitment fee accrued and calculated in respect of any period referred to in paragraph (b) above. The Company shall pay such commitment fee to the Agent (for the account of each Lender) not later than on the fifth (5th) Business Day following receipt by the Company of such notification. |
(d) |
No commitment fee is payable to the Agent (for the account of a Lender) on the Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender. |
13.2 |
Arrangement and participation fees |
The Company shall pay to the Agent (for the account of the Arrangers or Original Lenders) arrangement and participation fees in the amounts and at the times agreed in a Fee Letter.
13.3 |
Agency and Security Agent fee |
(a) |
The Company shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter. |
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(b) |
The Company shall pay to the Security Agent (for its own account) a security agent fee in the amount and at the times agreed in a Fee Letter. |
13.4 |
Interest, commission and fees on Ancillary Facilities |
The rate and time of payment of interest, commission, fees and any other remuneration in respect of each Ancillary Facility shall be determined by agreement between the relevant Ancillary Lender and the Borrower of that Ancillary Facility based upon normal market rates and terms.
13.5 |
Utilisation fee |
(a) |
The Company shall pay to the Agent (for the account of each Lender pro rata to its participation in any Loans) a utilisation fee in the Base Currency for the Utilisation of the Facility (but not for the utilisation of any Ancillary Facility) for each day on which the aggregate amount of the Loans outstanding: |
(i) |
is greater than 0 per cent. but less than 33 1/3 per cent. of the Total Commitments (less the Ancillary Commitments), computed at the rate of 0.10 per cent. per annum on the aggregate amount of Loans outstanding at such time; |
(ii) |
is greater than or equal to 33 1/3 per cent. but less than 66 2/3 per cent. of the Total Commitments (less the Ancillary Commitments), computed at the rate of 0.20 per cent. per annum on the aggregate amount of the Loans outstanding at such time; and |
(iii) |
is greater than or equal to 66 2/3 per cent. of the Total Commitments (less the Ancillary Commitments), computed at the rate of 0.30 per cent. per annum on the aggregate amount of the Loans outstanding at such time, |
in each case payable:
(A) |
each calendar quarter in arrear after the date of this Agreement during the lifetime of the Facility; |
(B) |
on the Termination Date; and |
(C) |
if cancelled in full, on the cancelled amount of the Facility at the time the cancellation is effective. |
(b) |
The Agent shall notify the Company of the utilisation fee accrued and calculated in respect of any period referred to in paragraph (a) above. The Company shall pay such utilisation fee to the Agent (for the account of each Lender) not later than on the fifth (5th) Business Day following the later of (i) receipt by the Company of such notification and (ii) the last day of the relevant period. |
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. |
TAX GROSS UP AND INDEMNITIES |
14.1 |
Definitions |
In this Agreement:
German Borrower means the Company and a Borrower incorporated in Germany;
German Non-Cooperative Jurisdiction means any non-cooperative state or territory (nicht kooperatives Steuerhoheitsgebiet) within the meaning of the German Defense Against Tax Haven Act dated 25 June 2021 (Steueroasen-Abwehrgesetz) (as amended or replaced from time to time);
German Non-Cooperative Jurisdiction Finance Party means a Finance Party other than an Original Lender (i) incorporated, domiciled, established, tax resident, acting through a Facility Office, permanent establishment or office (as the case may be) in a German Non-Cooperative Jurisdiction or (ii) acting for a beneficial owner tax resident in a German Non-Cooperative Jurisdiction;
Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document;
Qualifying Lender means:
(a) |
in respect of interest payable by a German Borrower, a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is: |
(i) |
lending through a Facility Office in Germany; or |
(ii) |
a Treaty Lender, |
(b) |
in respect of interest payable by any other Borrower, a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is: |
(i) |
lending through a Facility Office in the jurisdiction of incorporation of the relevant Borrower; or |
(ii) |
a Treaty Lender; |
Tax Credit means a credit against, relief or remission for, or repayment of any Tax; Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction;
88
Tax Payment means either the increase in a payment made by an Obligor to a Finance Party under Clause 14.2 (Tax gross-up) or a payment under Clause 14.3 (Tax indemnity);
Treaty Lender means a Lender which:
(a) |
is treated as a resident of a Treaty State for the purposes of the Treaty; |
(b) |
does not carry on a business in the jurisdiction of incorporation of the relevant Borrower through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and |
(c) |
fulfils, subject to the completion of any necessary procedural formalities, any other condition that must be fulfilled under the applicable Treaty by residents of that Treaty State for such residents to be entitled under the Treaty to a full exemption from Tax imposed by the jurisdiction of incorporation of the relevant Borrower on interest payments; and |
Treaty State means a jurisdiction having a double taxation agreement (a Treaty) with the jurisdiction of incorporation of the relevant Borrower which makes provision for full exemption for tax imposed by the jurisdiction of incorporation of the relevant Borrower on interest.
Unless a contrary indication appears, in this Clause 14 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.
14.2Tax gross-up
(a) |
Each Obligor shall make all payments to be made by it under each Finance Document without any Tax Deduction, unless a Tax Deduction is required by law. |
(b) |
The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Company and that Obligor. |
(c) |
If a Lender becomes aware that it is not, or has ceased to be, a Qualifying Lender, it shall promptly notify the Agent. If the Agent receives such notification from a Lender it shall promptly notify the Company. |
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(d) |
Subject to the limitations and exclusions below, if a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required. |
(e) |
A payment shall not be increased under paragraph (d) above by reason of a Tax Deduction on account of Tax imposed by the jurisdiction of incorporation of the relevant Borrower if on the date on which the payment falls due: |
(i) |
the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or published concession of any relevant taxing authority; |
(ii) |
the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (h) below; or |
(iii) |
such Tax Deduction is imposed solely because the payment is made to a German Non-Cooperative Jurisdiction Finance Party. |
(f) |
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law. |
(g) |
Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority. |
(h) |
A Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction. |
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(i) |
If: |
(i) |
a Tax Deduction is required by law in respect of a payment made by or on account of an Obligor (the Relevant Obligor) to a Lender under a Finance Document; |
(ii) |
the Relevant Obligor (or the Agent, if it is the applicable withholding agent) was unaware, and could not reasonably be expected to have been aware, that the Tax Deduction was required and as a result did not make the Tax Deduction either in reliance on the notifications and confirmations provided by the relevant Finance Party pursuant to Clause 14.5 (Lender Status Confirmation) or because the Finance Party has not complied with its obligations under paragraphs (b) or (c) of this Clause 14.2; and |
(iii) |
the Relevant Obligor would not have been required to make an increased payment under paragraph (d) above in respect of that Tax Deduction because based on circumstances existing at the time such payment would have been required to be made, one of the exclusions under paragraphs (e) or (f) of this Clause 14.2 would have applied, |
then the Lender that received the payment in respect of which the Tax Deduction should have been made undertakes to promptly, upon receipt of a written notice by that Relevant Obligor (or the Agent) and evidence that a Tax Deduction should have been made, reimburse that Relevant Obligor (or the Agent) for the amount of the Tax Deduction that should have been made (but, for the avoidance of doubt, not any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same and only to the extent the Tax Deduction has not already been accounted for to the tax authority by such Lender).
14.3Tax indemnity
(a) |
The Company shall (within three (3) Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document. |
(b) |
Paragraph (a) above shall not apply: |
(i)with respect to any Tax assessed on a Finance Party:
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or |
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jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
(B) |
under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction, |
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
(ii)to the extent a loss, liability or cost:
(A) |
is compensated for by an increased payment under Clause 14.2 (Tax gross-up); |
(B) |
would have been compensated for by an increased payment under Clause 14.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in Clause 14.2 (Tax gross-up) applied; |
(C) |
is compensated for by Clause 14.6 (Stamp taxes) or Clause 14.7 (VAT) (or would have been so compensated for under those Clauses but was not so compensated solely because any of the exceptions set out therein applied); |
(D) |
relates to a FATCA Deduction required to be made by any Party; or |
(E) |
relates to a Tax solely imposed because a Lender is a German Non-Cooperative Jurisdiction Finance Party. |
(c) |
A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Company. |
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 14.3, notify the Agent. |
14.4Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party determines that:
(a) |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and |
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(b) |
that Finance Party has obtained and utilised that Tax Credit, |
the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
14.5Lender status confirmation
(a) |
As at the date of this Agreement, each Original Lender confirms that it is not a German Non-Cooperative Jurisdiction Finance Party. |
(b) |
Each Original Lender represents upon entering into this Agreement that it is not incorporated, domiciled, established or acting through a Facility Office situated in a French Non-Cooperative Jurisdiction. |
(c) |
Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in the documentation which it executes on becoming a Party, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls into: |
(i)in respect of interest payable by each Borrower:
(A)not a Qualifying Lender;
(B)a Qualifying Lender (other than a Treaty Lender); or
(C) a Treaty Lender.
(d) |
If a New Lender or Increase Lender fails to indicate its status in accordance with this Clause 14.5 then such New Lender or Increase Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, a Transfer Certificate or Increase Confirmation shall not be invalidated by any failure of a Lender to comply with this Clause 14.5. |
(e) |
Each Lender, which is not an Original Lender, shall specify, in the documentation which it executes on becoming a Party as a Lender, whether it is a German Non-Cooperative Jurisdiction Finance Party. If such a Lender fails to indicate its status in accordance with this paragraph (e) then that Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is a German Non-Cooperative Jurisdiction Finance Party until such time as it notifies the Agent otherwise (and the Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, the documentation |
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which a Lender executes on becoming a Party as a Lender shall not be invalidated by any failure of a Lender to comply with this paragraph (e).
(f) |
A Finance Party shall notify the Agent promptly upon becoming aware that it has become a German Non-Cooperative Jurisdiction Finance Party. Upon reasonable request of the Company, each Finance Party shall as soon as is reasonably practical confirm its status as a Qualifying Lender and as not being a German Non-Cooperative Jurisdiction Finance Party. |
14.6 |
Stamp taxes |
The Company shall pay and, within three (3) Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document, provided that this Clause 14.6 shall not apply in respect of any stamp duty, registration or other similar Taxes payable in respect of an assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) or sub-participation or sub-contract by a Lender of any of its rights or obligations under a Finance Document unless such assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) or sub-participation or sub-contract is effected pursuant to Clause 17.1 (Mitigation) or Clause 9.5 (Right of replacement or repayment and cancellation in relation to a single Lender).
14.7 |
VAT |
(a) |
All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party). |
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Relevant Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather |
94
than being required to reimburse or indemnify the Recipient in respect of that consideration):
(i) |
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and |
(ii) |
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT. |
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority. |
(d) |
Any reference in this Clause 14.7 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in article 11 of Council Directive 2006/112/EC as amended (or as implemented by any relevant member state of the European Union) so that reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or representative or head) of that group or unity at the relevant time (as the case may be). |
(e) |
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably |
95
requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.
(f) |
The Borrower shall not be required to pay any amount of VAT if such VAT is solely due because the relevant Finance Party has opted to subject a supply to VAT, unless and to the extent the Borrower is able to claim such VAT as input VAT. |
14.8FATCA Information
(a) |
Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable request by another Party: |
(i)confirm to that other Party whether it is:
(A)a FATCA Exempt Party; or
(B)not a FATCA Exempt Party;
(ii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and |
(iii) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime. |
(b) |
If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly. |
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of: |
(i) |
any law or regulation; |
(ii) |
any fiduciary duty; or |
(iii) |
any duty of confidentiality. |
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party |
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shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
14.9FATCA Deduction
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. |
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Company and the Agent and the Agent shall notify the other Finance Parties. |
15. |
INCREASED COSTS |
15.1Increased costs
(a) |
Subject to Clause 15.3 (Exceptions) the Company shall, within three (3) Business Days of a demand by the Agent pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of: |
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation after the date of this Agreement; or |
(ii) |
compliance with any law or regulation made after the date of this Agreement, |
other than as addressed in sub-paragraph (iii) below; or
(iii) |
the implementation, application or compliance with Basel III or CRD IV (Basel III/CRD IV Increased Costs) provided that any Basel III/CRD IV Increased Costs may be claimed only if and to the extent that the regulatory information required to calculate the relevant Basel III/CRD IV Increased Costs with sufficient certainty was not available to banks in general on the date of this Agreement. |
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(b) |
In this Agreement: |
(i)Basel III means:
(A) |
the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; |
(B) |
the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and |
(C) |
any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”; |
(ii)CRD IV means:
(A) |
Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 648/2012, as published in the amended version |
(Corrigendum) in the Official Journal of the European Union L 321/6 on 30 November 2013; and
(B) |
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC; and |
(iii)Increased Costs means:
(A) |
a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital; |
98
(B) |
an additional or increased cost; or |
(C) |
a reduction of any amount due and payable under any Finance Document, |
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or an Ancillary Commitment or funding or performing its obligations under any Finance Document.
15.2Increased cost claims
(a) |
A Finance Party intending to make a claim pursuant to Clause 15.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Company. |
(b) |
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs, setting out in reasonable detail the background with a brief calculation (but without requiring any such Finance Party to disclose any confidential or proprietary information in relation to the organisation of its affairs or any business secrets). |
(c) |
A Finance Party may not claim any Increased Costs if such Finance Party has become of aware of the Increased Costs more than 180 days prior to the date on which the relevant notice is given by that Finance Party to the Agent pursuant to paragraph (a). |
15.3Exceptions
(a) |
Clause 15.1 (Increased costs) does not apply to the extent any Increased Cost is: |
(i) |
attributable to a Tax Deduction required by law to be made by an Obligor; |
(ii) |
attributable to a FATCA Deduction required to be made by a Party; |
(iii) |
compensated for by Clause 14.3 (Tax indemnity) (or would have been compensated for under Clause 14.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 14.3 (Tax indemnity) applied); |
(iv) |
attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” |
99
published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) (Basel II) or any other law or regulation which implements Basel II, whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates; or
(v) |
attributable to the wilful (vorsätzlich) breach by the relevant Finance Party or its Affiliates of any law or regulation. |
(b) |
In this Clause 15.3, a reference to a Tax Deduction has the same meaning given to that term in Clause 14.1 (Definitions). |
16. |
OTHER INDEMNITIES |
16.1 |
Currency indemnity |
(a) |
If any sum due from an Obligor under the Finance Documents (a Sum), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the First Currency) in which that Sum is payable into another currency (the Second Currency) for the purpose of: |
(i) |
making or filing a claim or proof against that Obligor; |
(ii) |
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, |
that Obligor shall as an independent obligation, within three (3) Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
(b) |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable. |
16.2 |
Other indemnities |
The Company shall (or shall procure that an Obligor will), within three (3) Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:
(a) |
the occurrence of any Event of Default; |
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(b) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 28 (Sharing among the Finance Parties); |
(c) |
funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or |
(d) |
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Company. |
16.3 |
Indemnity to the Agent |
The Company shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:
(a) |
investigating any event which it reasonably believes is a Default; |
(b) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or |
(c) |
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement. |
17. |
MITIGATION BY THE LENDERS |
17.1 |
Mitigation |
(a) |
Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 9.1 (Illegality), Clause 14 (Tax gross-up and indemnities), Clause 15 (Increased costs) or any amount payable to any Finance Party by the German Borrower under a Finance Document not being (or, at the time the relevant corporate income tax is calculated, not being) treated as a deductible charge or expense for German Tax purposes for the German Borrower by reason of that amount being paid, owed or accrued to a German Non-Cooperative Jurisdiction Finance Party including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office. |
(b) |
Each Finance Party shall, in consultation with the French Guarantors, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount payable under a Finance Document |
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by a French Guarantor becoming not deductible from that Guarantor’s taxable income for French Tax purposes by reason of that amount being (i) paid or accrued to a Finance Party incorporated, domiciled, established or acting through a Facility Office situated in a French Non-Cooperative Jurisdiction or (ii) paid to an account opened in the name of or for the benefit of that Finance Party on a financial institution situated in a French Non-Cooperative Jurisdiction, including (but not limited to) transferring its rights and/or obligations under the Finance Documents to another Affiliate or changing its Facility Office.
(c) |
Paragraph (a) and (b) above does not in any way limit the obligations of any Obligor under the Finance Documents. |
17.2Limitation of liability
(a) |
The Company shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 17.1 (Mitigation). |
(b) |
A Finance Party is not obliged to take any steps under Clause 17.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it. |
18. |
COSTS AND EXPENSES |
18.1Transaction expenses
The Company shall promptly on demand pay the Agent and the Arranger the amount of all costs and expenses (including external legal fees subject to any pre-agreed maximum amounts) reasonably incurred by any of them in connection with the negotiation, preparation, printing, execution, syndication and perfection of:
(a) |
this Agreement and any other documents referred to in this Agreement, including, but not limited to, the Guarantee and Security Trust Agreement and the Transaction Security Documents; and |
(b) |
any other Finance Documents (other than Ancillary Documents in respect of which costs and expenses shall be agreed bilaterally between the Company and/or the relevant borrower and the relevant Ancillary Lender) executed after the date of this Agreement. |
18.2Amendment costs
If:
(a) |
an Obligor requests an amendment, waiver or consent; or |
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(b) |
an amendment is required pursuant to Clause 29.10 (Change of currency), |
the Company shall, promptly on demand, reimburse the Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement (subject to pre-agreed maximum amounts, if any).
18.3Enforcement and preservation costs
The Company shall, promptly on demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19.REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this Clause 19 to each Finance Party on the date of this Agreement.
19.1Status
(a) |
It is a corporation, limited liability company, a stock corporation (including societas Europaea) or partnership with limited liability, duly incorporated or, in the case of a partnership, established and validly existing and in good standing under the law of its jurisdiction of incorporation. |
(b) |
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted. |
19.2 |
Binding obligations |
The obligations expressed to be assumed by it in each Finance Document to which it is a party are, subject to the Legal Reservations, legal, valid, binding and enforceable obligations.
19.3 |
Non-conflict with other obligations |
The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not conflict with:
(a) |
any law or regulation applicable to it; |
(b) |
its or any of its Subsidiaries’ constitutional documents; or |
(c) |
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets to an extent or in a manner which would have a Material Adverse Effect. |
19.4 |
Power and authority |
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.
104
19.5 |
Validity and admissibility in evidence |
Subject to the Legal Reservations, all Authorisations required by it:
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in and the validity and enforceability of, and the transactions contemplated by, the Finance Documents to which it is a party; and |
(b) |
to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation, |
have been obtained or effected (as applicable) and are in full force and effect (or, in each case, will be as and when required).
19.6Insolvency
(a) |
No: |
(i) |
corporate action, legal proceeding or other procedure or step described in Clause 23.7 (Insolvency proceedings); or |
(ii) |
creditors’ process described in Clause 23.8 (Creditors’ process), |
has been taken or, to the knowledge of the Company, threatened in relation to an Obligor or Material Subsidiary.
(b) |
None of the circumstances set out in either (i) Articles 2446 and 2447, or (ii) Articles 2482-bis and 2482-ter of the Italian Civil Code have arisen in respect to any Italian Obligor. |
19.7Governing law and enforcement
(a) |
Subject to the Legal Reservations, the choice of governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation or establishment. |
(b) |
Any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its jurisdiction of incorporation or establishment. |
19.8 |
Deduction of Tax |
It is not required to make any Tax Deduction (as defined in Clause 14.1. (Definitions)) from any payment (other than a FATCA Deduction) it may make under any Finance Document to a Lender which is a Qualifying Lender, unless such payment is made to a German Non-Cooperative Jurisdiction Finance Party.
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19.9 |
No filing or stamp taxes |
Under the law of its jurisdiction of incorporation or establishment it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar Tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.
19.10 |
No default |
(a) |
No Event of Default is continuing or would result from the making of any Utilisation. |
(b) |
No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries’) assets are subject which has or is reasonably likely to have a Material Adverse Effect. |
19.11No misleading information
(a) |
Any written factual information provided by any member of the Group to the Lenders prior to the date of this Agreement for the purposes of this Agreement (the Information Package) was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated. |
(b) |
Nothing has occurred or been omitted from the Information Package and no information has been given or withheld that results in the information referred to in paragraph (a) of this Clause 19.11 being untrue or misleading in any material respect. |
19.12Financial statements
(a) |
The Original Financial Statements of the Company and the audited (if available or required by law) financial statements of any other Obligor most recently delivered to the Agent have been prepared in accordance with GAAP consistently applied and fairly present its respective financial condition at the end of the relevant financial year and its results of operations during the relevant financial year (consolidated in the case of the Company’s audited consolidated financial statements). |
(b) |
There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Group, in the case of the Company) since 31 December 2023. |
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19.13 |
Pari passu ranking |
Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
19.14 |
No proceedings pending or threatened |
No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency (to its knowledge) has or have been started or credibly threatened in writing against it or any of its Subsidiaries which is reasonably likely to be adversely determined and, if so determined, would have a Material Adverse Effect.
19.15 |
Intellectual property |
It and each of its Subsidiaries:
(a) |
is the sole legal and beneficial owner of or has licensed to it all the Intellectual Property which is material in the context of its business and which is required by it in order to carry on its business as it is being currently conducted; |
(b) |
to its best knowledge and belief (after having made reasonable enquiries) does not, in carrying on its businesses, infringe any Intellectual Property of any third party in any respect; and |
(c) |
has taken all formal or procedural actions (including payment of fees) required to maintain any material Intellectual Property owned by it, to the extent that, in each case, any such statement being false has or would be reasonably likely to have a Material Adverse Effect. |
19.16 |
Sanctions, anti-corruption, anti-bribery and anti-money laundering |
(a) |
Each Obligor has implemented and maintains policies and procedures to ensure compliance with applicable Sanctions, Anti-Bribery and Corruption Laws and Anti-Money Laundering Laws and, it and its Subsidiaries, and to its best knowledge, its respective directors and officers are in compliance with such laws. |
(b) |
Each Obligor and each Subsidiary of the Company is not a Sanctions Restricted Person. |
(c) |
To the best of its knowledge, the respective directors and officers of each Obligor is not a Sanctions Restricted Person. |
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(d) |
Each Obligor and to its best knowledge its respective directors and officers: |
(i) |
has not or have not received notice of, or is otherwise aware of, any claim, action, suit, proceedings or investigation involving it with respect to any Sanctions; and |
(ii) |
to its best knowledge has not or have not engaged in any activity or conduct which would violate any applicable Anti-Bribery and Corruption Laws. |
(e) |
With respect to any Obligor, nothing in this Clause 19.16 shall create or establish an obligation or right for any such member of the Group to the extent that, by agreeing to it, compliance with it, exercising it, having such obligation or right, or otherwise, it would be placed in violation of any law applicable to it, in particular, in relation to any member of the Group incorporated in Germany, any laws relating to foreign trades (Außenwirtschaft) (including without limitation section 7 of the German Foreign Trade and Payments Ordinance (AWV) (Außenwirtschaftsverordnung) in connection with sections 4, 19 (3) no. 1 (a) of the German Foreign Trade and Payments Act (Außenwirtschaftsgesetz) and section 81 (1) no. 1 of the German Foreign Trade and Payments Ordinance or the provisions of EU Regulation (EC) 2271/96 or any other anti-boycott rule (as amended) and this Clause 19.16 shall be so limited and shall not apply to that extent. |
(f) |
This Clause 19.16 shall only apply for the benefit of a Finance Party if and to the extent that the receipt and acceptance by that Finance Party of representations and warranties (including by exercising any rights on the grounds of a breach of or with respect to any request thereunder) in this Clause 19.16 would not result in any violation of, conflict with or liability under (i) the provisions of EU Regulation (EC) 2271/96 or (ii) section 7 of the German Foreign Trade and Payments Ordinance (AWV) (Außenwirtschaftsverordnung) in connection with sections 4, 19 (3) no. 1 (a) of the German Foreign Trade and Payments Act (Außenwirtschaftsgesetz) and section 81 (1) no. 1 of the German Foreign Trade and Payments Ordinance or (iii) any other anti-boycott rule, (each as amended). In connection with any amendment, waiver, determination or direction relating to any part of this Clause 19.16 of which a Finance Party does not have the benefit, the Commitments of that Finance Party will be excluded for the purpose of determining whether the consent of the Majority Lenders has been obtained or whether the determination or direction by the Majority Lenders has been made. |
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19.17Margin Stock
(a) |
No Obligor is engaged or will engage, principally or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock. |
(b) |
No part of the proceeds of any Advance or other extension of credit hereunder will be used to purchase or carry any Margin Stock. |
(c) |
Following the application of the proceeds of any Advance or other extension of credit hereunder, not more than 25% of the value (as determined by any reasonable method) of the assets (either of any Obligor only or of the Group on a consolidated basis) will be Margin Stock. |
19.18Certain US Laws
No Obligor is an “investment company” as defined in the US Investment Company Act of 1940 that is required to register as such thereunder.
19.19ERISA
(a) |
Each Plan (other than a Multiemployer Plan) is in compliance with its terms and with all applicable provisions and requirements of the Code, ERISA and other applicable laws except where any failure to comply would not reasonably be expected to, individually or taken together with any other such failures, result in a Material Adverse Effect. |
(b) |
No ERISA Event has occurred during the six (6) years immediately preceding the date of this Agreement, is continuing or is reasonably expected to occur, except to the extent that any liability associated therewith, individually or taken together with any other ERISA Event, would not reasonably be expected to have a Material Adverse Effect. |
19.20Repetition
(a) |
The Repeating Representations shall be made by the Company on its own behalf and on behalf of the other Obligors (under a power of attorney (Vollmacht) granted to it by the Obligors pursuant to paragraph (b) below) by reference to the facts and circumstances then existing: |
(i) |
on the date of each Utilisation Request (other than for a Rollover Loan); |
109
(ii) |
in relation to each Accordion Increase Request made pursuant to Clause 2.3 (Increase - Accordion Option), on the date of such Accordion Increase Request; |
(iii) |
in relation to any First Anniversary Extension Request and Second Anniversary Extension Request on the date of such First Anniversary Extension Request and Second Anniversary Extension Request, respectively; and |
(iv) |
by an Additional Obligor on the day on which the company becomes (or it is proposed that the company becomes) an Additional Obligor. |
In addition the Repeating Representations shall be deemed to be made by each Obligor by reference to the facts and circumstances then existing on the Utilisation Date and the first day of each Interest Period.
(b)Each Obligor (other than the Company) hereby empowers (bevollmächtigt) the Company to make the Repeating Representations on its behalf as its attorney (Stellvertreter). Each Obligor (other than the Company) hereby exempts the Company from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) for the purpose of making the Repeating Representations on its behalf as attorney (Stellvertreter).
20. |
INFORMATION UNDERTAKINGS |
The undertakings in this Clause 20 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents, or any Commitment is in force.
20.1 |
Financial statements |
The Company shall supply to the Agent in sufficient copies for all the Lenders (unless made available on the Company’s corporate website or any other website and, in each case, notified to the Agent) as soon as the same become available, but in any event:
(a)
(i) |
within 150 days after the end of each of its financial years, its audited unconsolidated financial statements and its audited consolidated financial statements for that financial year; |
(ii) |
within 150 days after the end of each of its financial years, IFRS unaudited group reporting of each other Obligor (other than the Company) for that financial year; and |
110
(iii) |
within 240 days after the end of each Obligor’s (other than the Company) financial years (to the extent either prepared or required by law to be prepared) each such Obligor’s audited (if available or required by law) unconsolidated financial statements; |
(b) |
within 60 days after the end of each first, second and third financial quarter of each of its financial years, its unaudited consolidated quarterly financial statements for that financial quarter. |
20.2Compliance Certificate and Material Subsidiaries list
(a) |
The Company shall supply to the Agent, with each set of financial statements delivered pursuant to Clause 20.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 21 (Financial covenant) as at the date as at which those financial statements were drawn up. |
(b) |
Each Compliance Certificate shall be signed by one authorised signatory of the Company who has sole power of representation (Einzelvertretungsmacht) or by two authorised signatories of the Company who have joint power of representation (Gesamtvertretungsmacht) and, if required to be delivered with the annual financial statements of the Company delivered pursuant to paragraph (a)(i) of Clause 20.1 (Financial Statements), shall be reported on by the Company’s auditor with customary scope and form, in each case setting out computations in reasonable detail as to compliance with the financial covenant. |
(c) |
The Company shall supply to the Agent, with each set of annual financial statements delivered pursuant to paragraph (a) of Clause 20.1 (Financial statements), a list of its Material Subsidiaries as at the date as at which those financial statements were drawn up. |
20.3Requirements as to financial statements
(a) |
The Company must ensure that each set of financial statements delivered under this Agreement gives (if audited) a true and fair view of, or (if unaudited) fairly presents, the financial condition (consolidated or otherwise) of the relevant person as at the date as at which those financial statements were drawn up, and is, in each case, certified by a director of the relevant company to this effect. |
(b) |
The Company shall procure that each set of its consolidated financial statements delivered pursuant to Clause 20.1 (Financial statements) is prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the |
111
Company’s audited consolidated Original Financial Statements, unless, in relation to any set of its consolidated financial statements delivered pursuant to Clause 20.1 (Financial statements) either:
(A) |
the relevant change in GAAP, accounting practices or reference periods has no impact on the calculation of the ratio referred to in Clause 21.2 (Financial condition); or |
(B) |
the Company notifies the Agent that there has been a change in GAAP, the accounting practices or reference periods and its auditors deliver to the Agent a statement (a Reconciliation Statement) containing: |
(1) |
a full description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which the Company’s Original Financial Statements were prepared; and |
(2) |
sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 21 (Financial Covenant) has been complied with and make an accurate comparison between the financial position shown by the set of financial statements prepared on the changed basis and the Company’s Original Financial Statements. |
(c) |
If the Company notifies the Agent of a change in accordance with paragraph (b)(B) above, then the Company and the Agent (acting on the instructions of the Majority Lenders) shall enter into negotiations in good faith with a view to agreeing: |
(i) |
whether or not that change might result in any alteration in the commercial effect of any of the terms of this Agreement; and |
(ii) |
where the Company and the Agent consider that such change may result in any alteration in the commercial effect of any of the terms of this Agreement, any amendments to this Agreement which may be necessary to ensure that such change does not result in either the Finance Parties or the Obligors being in a worse position in relation to the determination of their respective rights and obligations under Clause 21.2 (Financial covenant) than if that change had not been made, |
112
and if any amendments are agreed, they shall take effect and be binding on each of the Parties in accordance with their terms.
(d) |
If no agreement is reached on the required amendments to this Agreement within 30 days of a notice being delivered in accordance with paragraph (b)(B) above (or such later date as the Agent (acting on the instructions of the Majority Lenders) and the Company may agree), the Company shall ensure that each set of its consolidated financial statements delivered pursuant to Clause 20.1 (Financial statements) is accompanied by a Reconciliation Statement. |
(e) |
Unless amendments to this Agreement have been agreed in accordance with paragraph (c) above, any reference in this Agreement to consolidated financial statements in respect of which the Company has notified a change in accordance with paragraph (b)(B) above will be construed as a reference to those financial statements as adjusted to reflect the basis on which the Company’s Original Financial Statements were prepared. |
20.4 |
Consolidated plans |
The Company shall supply to the Agent in sufficient copies for all the Lenders within 60 days after the end of each financial year, its consolidated plan for the current financial year and the then following two financial years (comprising of on a consolidated basis (i) the profit and loss statement, (ii) balance sheet and (iii) cash flow statement of the Company).
20.5 |
Information: miscellaneous |
The Company shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent (acting reasonably) so requests):
(a) |
all documents dispatched by the Company to its creditors generally substantially at the same time as they are dispatched; |
(b) |
promptly upon becoming aware of them (in each case subject to any confidentiality, regulatory or other restrictions in respect of the supply of such information), the details of any litigation, arbitration or administrative proceedings which are current, or, to the Company’s knowledge, credibly threatened in writing or pending against any member of the Group and which are reasonably likely to be adversely determined and, if adversely determined, are reasonably likely to have a Material Adverse Effect, and the details of any judgement or order of court, arbitral body or agency which is made against any member of the Group and which is reasonably likely to have a Material Adverse Effect; |
113
(c) |
promptly such further information as may be required by applicable banking supervisory laws and regulations; and |
(d) |
promptly, such further information regarding the financial condition, business and operations of any member of the Group as any Finance Party (through the Agent) may reasonably request (subject to any confidentiality, regulatory or other restrictions in respect of the supply of such information). |
20.6Notification of default
(a) |
Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor) |
(b) |
Promptly upon a request by the Agent, the Company shall supply to the Agent a certificate signed by a director with sole power of representation (Einzelvertretungsmacht) or by two directors who have joint power of representation (Gesamtvertretungsmacht) or two senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it). |
20.7Use of websites
(a) |
The Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the Website Lenders) who accept this method of communication by posting this information onto an electronic website designated by the Company and the Agent (the Designated Website) if: |
(i) |
the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method; |
(ii) |
both the Company and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and |
(iii) |
the information is in a format previously agreed between the Company and the Agent. |
If any Lender (a Paper Form Lender) does not agree to the delivery of information electronically then the Agent shall notify the Company accordingly and the Company shall supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form. Upon the Agent’s request, the Company shall supply the Agent with at least one copy in paper form of any information required to be provided by it.
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(b) |
The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Company and the Agent. |
(c) |
The Company shall promptly upon becoming aware of its occurrence notify the Agent if: |
(i)the Designated Website cannot be accessed due to technical failure;
(ii) |
the password specifications for the Designated Website change; |
(iii) |
any new information which is required to be provided under this Agreement is posted onto the Designated Website; |
(iv) |
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or |
(v) |
the Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software. |
If the Company notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Company under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.
(d) |
Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Company shall comply with any such request within ten (10) Business Days. |
20.8“Know your customer” checks
(a) |
If: |
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement; |
(ii) |
any change in the status of an Obligor (or of a Holding Company of an Obligor) after the date of this Agreement, including for the avoidance of doubt any change of the legal form of the Company; or |
115
(iii) |
a proposed assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme), |
obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
(b) |
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents. |
(c) |
The Company shall, by not less than ten (10) Business Days’ prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Borrower or Additional Guarantor pursuant to Clause 25 (Changes to the Obligors). |
(d) |
Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Borrower or Additional Guarantor obliges the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” |
116
or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Borrower or Additional Guarantor.
(e) |
Each Lender notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56), and its implementing regulations, it is, or may be, required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the provisions of that act. |
21. |
FINANCIAL COVENANT |
21.1 |
Definitions and interpretation |
(a)In this Agreement:
Adjusted EBITDA means (according to the annual financial statements delivered pursuant to paragraph (a)(i) of Clause 20.1 (Financial Statements) and calculated as for the balance sheet date) the operating income (or loss, as the case may be)
(i) |
plus depreciation of property, plant and equipment; |
(ii) |
plus amortisation of intangible assets; |
(iii) |
plus impairment of goodwill and intangible assets; |
(iv) |
minus extraordinary income (including any exceptional, one-off or non-recurring income (including changes in contingent considerations according to IFRS and income from bargain purchase according to IFRS)); |
(v) |
plus extraordinary expenses (including any exceptional, one-off or non-recurring expenses (including changes in contingent considerations according to IFRS, restructuring and M&A transaction costs)), |
in each case, to the extent added, deducted or taken into account, as the case may be, for the purposes of determining operating profits of the Group before taxation and
(A) |
as may be adjusted by the Company by including the operating income (or loss, as the case may be) of any member of the Group or attributable to any business or asset acquired during that Relevant Period by any member of the Group; and |
117
(B) |
excluding the operating income (or loss, as the case may be) of any member of the Group or attributable to any business or asset disposed of during that Relevant Period by any member of the Group. |
Borrowings means at the last day of any Relevant Period the aggregate amount of all Financial Indebtedness, save for any indebtedness in respect of:
(i) |
paragraphs (f), (h) and (i) of the definition of “Financial Indebtedness”, as shown in the Company’s consolidated financial statements for such Relevant Period; and |
(ii) |
paragraph (c) of the definition of “Financial Indebtedness”, if and to the extent such indebtedness is (i) for or in respect of any amount raised pursuant to the issue of convertible bonds and (ii) shown as equity in the latest audited consolidated annual financial statements of the Company delivered pursuant to paragraph (a) of Clause 20.1 (Financial statements), it being understood that if only part of such indebtedness is shown as equity in the relevant audited consolidated annual financial statements, only such portion of indebtedness shall not be treated as Borrowings for the purposes of this definition. |
Cash and Cash Equivalent Investments means at any time:
(i) |
cash in hand or on deposit with any bank, including, without limitation, any amounts standing to the credit of any current account and any overnight and time deposits; |
(ii) |
any investment in money market funds according to the most recent investment policy of the Company as per the balance sheet position in the relevant annual financial statements of the Company delivered pursuant to paragraph (a)(i) of Clause 20.1 (Financial Statements); |
(iii) |
the market value of any securities which have a credit rating equal to or better than BBB- or Baa3 (as applicable) according to at least two Rating Agencies; and |
(iv) |
any other position as per balance sheet positions ‘Cash & Cash Equivalents and Investments’ of the Company. |
Leverage means, in respect of any Relevant Period, the ratio of Total Net Debt on the last day of that Relevant Period to Adjusted EBITDA in respect of that Relevant Period.
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Material Acquisition means any acquisition where the Total Consideration for a single acquisition or for a series of related acquisitions exceeds EUR 50,000,000 (or its equivalent).
Quarter Date means each of 31 March, 30 June, 30 September and 31 December.
Relevant Period means each period of four consecutive financial quarters ending on a Quarter Date.
Testing Date means each Quarter Date set out in column 1 of the grid set out in Clause 21.2 (Financial condition) when the Leverage is tested.
Total Consideration means the aggregate consideration amount for an acquisition (including any acquired Financial Indebtedness remaining in the acquired company, business or undertaking with respect to such individual acquisition).
Total Net Debt means, at any time, the aggregate amount of all obligations of members of the Group on a consolidated basis in respect of Borrowings less Cash and Cash Equivalent Investments at that time.
(b) |
Except as provided to the contrary in this Agreement, an accounting term used in this Clause 21 is to be construed in accordance with the principles applied in connection with the Company’s Original Financial Statements. |
(c) |
Any amount in a currency other than EUR is to be taken into account at its EUR equivalent calculated on the basis of the relevant rates of exchange used by the Company in, or in connection with, its financial statements or management accounts for that period. |
(d) |
No item may be credited or deducted more than once in any calculation under this Clause 21. |
(e) |
Any reference to Leverage in this Agreement shall be Leverage calculated on the basis of the most recent Compliance Certificate, pro forma for the incurrence of any relevant Financial Indebtedness, making of any relevant acquisition or any other relevant action or measure. |
21.2 |
Financial condition |
Starting with the Quarter Date within the testing period set forth in column 1 below, the Company shall ensure that the Leverage in respect of any Relevant Period shall not exceed the relevant ratio set forth in column 2 below opposite that testing period:
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Column 1 |
Column 2 |
31 December 2024 |
3.75:1.00 |
31 March 2025 |
3.75:1.00 |
30 June 2025 |
3.75:1.00 |
30 September 2025 |
3.50:1.00 |
31 December 2025 |
3.50:1.00 |
31 March 2026 |
3.50:1.00 |
30 June 2026 |
3.50:1.00 |
30 September 2026 and each Quarter Date thereafter |
3.25:1.00 |
provided that, on not more than one occasion from the date of this Agreement, Leverage shall be permitted to increase to a level of up to 4.00:1.00 (in relation to any testing period ending on or prior to 30 June 2026) or, as the case may be, 3.75:1.00 (in relation to any testing period ending after 30 June 2026) for a period, in each case, not exceeding three consecutive full financial quarters after and as a consequence of the completion of one or more Material Acquisitions (the M&A Spike), and further provided that (i) in case the Company has exercised its extension option pursuant to Clause 3 (Extension Option), one additional M&A Spike shall be available after the third anniversary of the date of this Agreement and (ii) the applicable Leverage set out in the grid above shall be restored on the Testing Date immediately following the last Testing Date to which the M&A Spike applies, i.e., the applicable Leverage set out in the grid above shall be restored for at least one Testing Date between two M&A Spikes.
21.3 |
Financial testing |
The financial covenant set out in Clause 21.2 (Financial condition) shall be tested by reference to the financial statements delivered pursuant to Clause 20.1 (Financial statements) and each Compliance Certificate delivered pursuant to paragraph (a) of Clause 20.2 (Compliance Certificate and Material Subsidiaries list) pro forma for the incurrence of any relevant Financial Indebtedness, making of any relevant acquisition or any other relevant action or measure.
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22. |
GENERAL UNDERTAKINGS |
The undertakings in this Clause 22 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
22.1 |
Authorisations |
Each Obligor shall promptly obtain, comply with and do all that is necessary to maintain in full force and effect any Authorisation required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document.
22.2 |
Compliance with laws |
Each Obligor shall comply in all respects with all laws to which it may be subject, if failure so to comply would have a Material Adverse Effect.
22.3 |
Negative pledge |
(a) |
No Obligor shall (and the Company shall ensure that no other member of the Group will) create or permit to subsist any Security for or in respect of Financial Indebtedness over any of its assets. |
(b) |
Paragraph (a) above does not apply to any Security listed below: |
(i) |
any Security existing on the date of this Agreement securing Financial Indebtedness (including any later refinancing of that Financial Indebtedness and any renewal or retaking of such Security in connection with such refinancing), provided that the aggregate amount of Financial Indebtedness (including commitments) secured by such Security is not increased; |
(ii) |
any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances and any Security over bank accounts entered into in connection with the provision of customary clearing bank facilities, overdraft facilities or cash pooling arrangements comprising more than one account; |
(iii) |
any Security arising by operation of law (or by an agreement evidencing the same) or by order of any court or authority; |
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(iv) |
any Security arising under customary general terms and conditions (Allgemeine Geschäftsbedingungen) of banks or financial institutions; |
(v) |
any Security arising in the ordinary course of business and on the basis of customary general business conditions and any Security arising in connection with a retention of title arrangement (including extended retention of title arrangements (verlängerter Eigentumsvorbehalt)) in the ordinary course of business; |
(vi) |
any Security provided to banks or financial institutions in the ordinary course of business pursuant to or in connection with any framework or master agreement relating to any derivative transaction (excluding any derivative transaction entered into for speculative purposes); |
(vii) |
any Security over cash paid into an escrow account by any third party or any member of the Group pursuant to any customary deposit or retention of purchase price arrangements entered into pursuant to any acquisition or disposal made by any member of the Group; |
(viii) |
any Security over or affecting any asset acquired by a member of the Group after the date of this Agreement if: |
(A) |
the Security was not created in contemplation of, or since, the acquisition of that asset by a member of the Group; |
(B) |
the principal amount secured has not been increased in contemplation of, or since, the acquisition of that asset by a member of the Group; and |
(C) |
the Security is removed or discharged within six (6) Months of the date of acquisition of such asset; |
(ix) |
any Security over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security is created prior to the date on which that company becomes a member of the Group, if: |
(A) |
the Security was not created in contemplation of the acquisition of that company; |
(B) |
the principal amount secured has not increased in contemplation of, or since, the acquisition of that company; and |
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(C) |
the Security is removed or discharged within six (6) Months of that company becoming a member of the Group; |
(x) |
any Security entered into pursuant to any Finance Document; |
(xi) |
any Security arising under any leases, hire purchase or conditional sale arrangement or arrangements having similar effect over the asset which is the subject matter of the relevant agreement, provided that the aggregate principal amount of Financial Indebtedness secured by all Security permitted under this paragraph (xi) shall not at any time exceed EUR 25,000,000 (or its equivalent in another currency or currencies); |
(xii) |
any Security created or subsisting to secure any obligations incurred in order to comply with the requirements of section 8a of the German Altersteilzeitgesetz and/or section 7e of the German Sozialgesetzbuch IV and/or any Security in favour of a pension fund, a pension trustee or similar arrangements; |
(xiii) |
the Transaction Security; |
(xiv) |
any Security created with the prior consent of the Majority Lenders; and |
(xv) |
any other Security securing Financial Indebtedness the principal amount of which does not when aggregated with the principal amount of any other Financial Indebtedness which has the benefit of Security given by any member of the Group (other than any permitted under paragraphs (i) to (xiv) above), exceed at any time one point five (1.5) per cent. of the total consolidated assets of the Group. |
22.4Disposals
(a) |
No Obligor shall (and the Company shall ensure that no other member of the Group will) enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset (or part thereof). |
(b) |
Paragraph (a) above does not apply to any sale, lease, transfer or other disposal: |
(i) |
made in the ordinary course of trading of the disposing entity; |
(ii) |
made by one member of the Group (the Disposing Company) to any other member of the Group (the Acquiring Company), but |
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if the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor;
(iii) |
of any asset from an Obligor to a Non-Obligor provided that the aggregate amount transferred (net of the value of any assets transferred from a member of the Group which is not an Obligor to an Obligor) does not exceed one (1) per cent. of the total consolidated assets of the Group in any financial year; |
(iv) |
of receivables under non-recourse factoring of such receivables the aggregate outstanding value of which does not at any time exceed EUR 50,000,000 (or its equivalent in another currency or currencies); |
(v) |
required by any anti-trust law or legally binding anti-trust decree, regulation or order by any governmental authority or agency or by any other laws or orders issued by public authorities; |
(vi) |
of assets in exchange for other assets comparable or superior as to type, value and quality (excluding the exchange of non-cash assets for cash); |
(vii) |
on arm’s length terms of obsolete, surplus or redundant plant, machinery or equipment not required for the operation of the business of the relevant member of the Group; |
(viii) |
the net proceeds of which are (i) committed to be reinvested within twelve (12) months and (ii) actually reinvested within eighteen (18) months of receipt in other assets used for the business of the Group or applied towards the refinancing or repayment and cancellation of any Financial Indebtedness of any member of the Group if and to the extent such Financial Indebtedness is not subordinated to the claims of the Finance Parties under this Agreement; |
(ix) |
of any assets of a type accounted for as “financial assets” (including, for the avoidance of doubt, any assets of a type accounted for as Cash and Cash Equivalent Investments) in the Company’s consolidated Original Financial Statements or in relation to any treasury transaction; |
(x) |
of tax credits on arm’s length terms pursuant to an arrangement under which there is no recourse to any member of the Group; |
(xi) |
constituted by a licence or sub-licence of Intellectual Property; |
(xii) |
made with the prior written consent of the Majority Lenders; or |
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(xiii) |
not permitted under paragraphs (i) to (xii) above, where the higher of the market value or consideration receivable (when aggregated with any other disposal made in reliance on this paragraph) does not exceed seven point five (7.5) per cent. of the total consolidated assets of the Group in any financial year and fifteen (15) per cent. of the total consolidated assets of the Group over the lifetime of the Facility. |
22.5Subsidiary Financial Indebtedness
(a) |
No Obligor (other than the Company) shall, and the Company shall ensure that no member of the Group (other than the Company) incurs or allows to remain outstanding any Financial Indebtedness. |
(b) |
Paragraph (a) above does not apply to: |
(i) |
any Financial Indebtedness incurred under the Finance Documents or supported by a letter of credit or similar accommodation under an Ancillary Facility (including Maximum Amount Guarantees); |
(ii) |
any Financial Indebtedness existing at the date of this Agreement (including the Financial Indebtedness arising from the IKB Loan Agreements) or incurred under facilities existing at the date of this Agreement, including any refinancing and replacement thereof, provided that the aggregate amount of the relevant Financial Indebtedness or facility is not increased any further; |
(iii) |
any Financial Indebtedness arising under a Permitted Loan or a Permitted Guarantee; |
(iv) |
any Financial Indebtedness incurred under or in connection with the operation of cash management arrangements established for the ordinary course of business and for the benefit of any Subsidiary; |
(v) |
any Financial Indebtedness of any person acquired by a member of the Group which is incurred under arrangements in existence at the date of the acquisition and not incurred, increased or having the maturity extended in contemplation thereof provided that such Financial Indebtedness is repaid within six (6) months of the date of acquisition of such person; |
(vi) |
any derivative transaction protecting against or benefiting from fluctuations in any rate or price entered into in the ordinary course of business (other than for speculative purposes); |
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(vii) |
Financial Indebtedness arising under any Finance Lease provided that the aggregate principal amount does not exceed EUR 25,000,000 (or its equivalent in another currency or currencies) at any time; |
(viii) |
Financial Indebtedness arising under any lease agreement which does not constitute a Finance Lease; |
(ix) |
Financial Indebtedness incurred with the prior written consent of the Majority Lenders; and |
(x) |
other Financial Indebtedness the principal amount of which does not when aggregated with (but without double counting, including with respect to Financial Indebtedness incurred by one member of the Group which is the subject of a guarantee given by another member of the Group) the principal amount of any other Financial Indebtedness incurred in reliance on this paragraph (x), exceed at any time five (5) per cent. of the total consolidated assets of the Group, |
(each a Permitted Financial Indebtedness).
22.6 |
Loans out |
(a) |
No Obligor shall (and the Company shall ensure that no other member of the Group will) be a creditor in respect of Financial Indebtedness extended to any person. |
(b) |
Paragraph (a) above does not apply to: |
(i) |
any trade credit or advance payment extended to customers or suppliers or other business parties on normal commercial terms and in the ordinary course of its trading activities; |
(ii) |
any Financial Indebtedness or loan made by an Obligor to another Obligor or made by a Non-Obligor to another member of the Group; |
(iii) |
any Financial Indebtedness or loan made by an Obligor to a Non-Obligor so long as the aggregate amount of the Financial Indebtedness under any such loans when aggregated with the amount of any guarantee outstanding under paragraph (b)(iii) of Clause 22.7 (Guarantees) does not exceed at any time two (2) per cent. of the consolidated assets of the Group; |
(iv) |
any deferred consideration for disposals permitted under the Agreement on normal commercial terms up to a maximum |
126
amount not exceeding twenty-five (25) per cent. of the consideration received in respect of such permitted disposal;
(v) |
any investments made in the ordinary course of treasury transactions in instruments which have an investment grade credit rating (including for the avoidance of doubt, any investment in bonds, notes, money market instruments, promissory notes (Schuldscheindarlehen), term deposits and similar instruments, excluding for speculative purposes); |
(vi) |
any derivative transaction (excluding any derivative transaction entered into for speculative purposes); |
(vii) |
loans made by an entity prior to such entity becoming a member of the Group provided that such loan (A) was not created in contemplation of the acquisition of that entity and the principal amount of such loan has not been increased in contemplation of or since the acquisition of that entity and (B) is discharged within six (6) months after the date on which the relevant person becomes a member of the Group; |
(viii) |
loans made by a member of the Group in the ordinary course of business to an employee or director of any member of the Group provided that such loans do not exceed at any one time an aggregate amount of EUR 1,000,000 (or its equivalent in any other currency or currencies); |
(ix) |
any loan or credit extended prior to the date of this Agreement, provided that the principal amount of such loan or credit has not been increased thereafter; |
(x) |
Financial Indebtedness which is referred to in the definition of, or otherwise constitutes, Permitted Financial Indebtedness (except under paragraph (iii) of that definition) (without double counting); |
(xi) |
any loan or similar instrument entered into with the prior written consent of the Majority Lenders; and |
(xii) |
any loan not permitted under paragraphs (i) to (xi) above the aggregate principal amount of which does not when aggregated with: |
(A) |
the aggregate principal amount of any other loan extended in reliance on this paragraph (xii); and |
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(B) |
the aggregate liability (whether actual or contingent) of any guarantee or indemnity provided in reliance on paragraph (b)(xi) of Clause 22.7 (Guarantees), |
exceed at any time three (3) per cent. of the consolidated assets of the Group,
(each a Permitted Loan).
22.7Guarantees
(a) |
No Obligor shall (and the Company shall ensure that no other member of the Group will) incur or allow to remain outstanding any guarantee or indemnity in respect of Financial Indebtedness of any person. |
(b) |
Paragraph (a) above does not apply to: |
(i) |
any guarantee or indemnity arising under any Finance Document; |
(ii) |
a guarantee by an Obligor of the obligations of another Obligor or by a Non-Obligor of the obligations of another member of the Group; |
(iii) |
a guarantee by an Obligor of obligations of a Non-Obligor provided that the aggregate amount guaranteed, when aggregated with the amount of any loan outstanding under (b)(iii) of Clause 22.6 (Loans out) does not exceed at any time two (2) per cent. of the consolidated assets of the Group; |
(iv) |
any endorsement of negotiable instruments in the ordinary course of business; |
(v) |
any guarantee extended to customers or suppliers or other business parties on normal commercial terms; |
(vi) |
any guarantee given in respect of netting or set-off agreements referred to under paragraph (b)(ii) of Clause 22.3 (Negative pledge); |
(vii) |
any amount which, if extended by way of a loan, would be permitted under paragraphs (b)(i) to (x) of Clause 22.6 (Loans out); |
(viii) |
any guarantee or indemnity existing as of the date of this Agreement and any replacement or rollover of such guarantees or indemnities in case of any refinancing or extension of the Financial Indebtedness secured thereby, provided that the |
128
aggregate amount of the relevant Financial Indebtedness secured is not increased;
(ix) |
guarantees granted by an entity prior to such entity becoming a member of the Group provided that such guarantee (A) was not extended in contemplation of such entity becoming a member of the Group and the aggregate amount secured has not been increased in contemplation of or since such entity becoming a member of the Group and (B) is discharged within six (6) months after the date on which the relevant person becomes a member of the Group; |
(x) |
guarantees or indemnities given with the prior written consent of the Majority Lenders; and |
(xi) |
any guarantee or indemnity not permitted under paragraphs (i) to (x) above the aggregate liability (whether actual or contingent) of which does not when aggregated with: |
(A) |
the aggregate liability (whether actual or contingent) of any other guarantee or indemnity provided in reliance on this paragraph (xi); and |
(B) |
the aggregate principal amount of any loan extended in reliance on paragraph (b)(xii) of Clause 22.6 (Loans out), |
exceed at any time three (3) per cent. of the consolidated assets of the Group,
(each a Permitted Guarantee)
22.8Merger
(a) |
No Obligor shall complete any amalgamation, merger (Verschmelzung) or de-merger (Ab- und Aufspaltung), within the meaning of the German Transformation Act (Umwandlungsgesetz) (each such measure, a Transformation). |
(b) |
Paragraph (a) above does not apply to a Transformation: |
(i)between Obligors, provided that:
(A) |
if such Transformation involves any Borrower, the Borrower must be the surviving entity; and |
(B) |
if such Transformation involves the Company, the Company must be the surviving entity; |
129
(ii) |
between an Obligor and any other member of the Group which is not an Obligor, provided that the relevant Obligor must be the surviving entity; and |
(iii) |
made with the prior consent of the Majority Lenders. |
22.9 |
Change of business |
The Company shall procure that no material change is made to the general nature of the business of the Company or the Group taken as a whole from that carried on at the date of this Agreement.
22.10 |
Sanctions |
(a) |
Each Obligor shall ensure that no proceeds of any Loan shall be used, lent, contributed or otherwise made available directly or, to its knowledge indirectly, to, or for the benefit of, a Sanctions Restricted Person nor shall they otherwise be applied in a manner or for a purpose prohibited by Sanctions. |
(b) |
Each Obligor shall ensure compliance with applicable Sanctions (including in connection with discharging any obligation due or owing to the Finance Parties). |
(c) |
Each Obligor shall, and shall procure that each Material Subsidiary shall, to the extent permitted by law, promptly upon becoming aware of them supply to the Agent details of any claim, action, suit, proceeding or investigation against it (except any subpoena or information request relating to any proceeding against a third party) with respect to Sanctions by any Sanctions Authority. |
(d) |
With respect to any Obligor and any Material Subsidiary, nothing in this Clause 22.10 shall create or establish an obligation or right for any such member of the Group to the extent that, by agreeing to it, compliance with it, exercising it, having such obligation or right, or otherwise, it would be placed in violation of any law applicable to it, in particular, in relation to any member of the Group incorporated in Germany, any laws relating to foreign trades (Außenwirtschaft) (including without limitation section 7 of the German Foreign Trade and Payments Ordinance (AWV) (Außenwirtschaftsverordnung) in connection with sections 4, 19 (3) no. 1 (a) of the German Foreign Trade and Payments Act (Außenwirtschaftsgesetz) and section 81 (1) no. 1 of the German Foreign Trade and Payments Ordinance or the provisions of EU Regulation (EC) 2271/96 or any other anti-boycott rule (as amended) and this Clause 22.10 shall be so limited and shall not apply to that extent. |
130
(e) |
This Clause 22.10 shall only apply for the benefit of a Finance Party if and to the extent that the receipt and acceptance by that Finance Party of benefits of the undertakings in this Clause 22.10 (including by exercising any rights on the grounds of a breach of or with respect to any request thereunder) would not result in any violation of, conflict with or liability under (i) the provisions of EU Regulation (EC) 2271/96 or (ii) section 7 of the German Foreign Trade and Payments Ordinance (AWV) (Außenwirtschaftsverordnung) in connection with sections 4, 19 (3) no. 1 (a) of the German Foreign Trade and Payments Act (Außenwirtschaftsgesetz) and section 81 (1) no. 1 of the German Foreign Trade and Payments Ordinance or (iii) any other anti-boycott rule, (each as amended). In connection with any amendment, waiver, determination or direction relating to any part of this Clause 22.10 of which a Finance Party does not have the benefit, the Commitments of that Finance Party will be excluded for the purpose of determining whether the consent of the Majority Lenders has been obtained or whether the determination or direction by the Majority Lenders has been made. |
22.11 |
Anti-corruption, anti-bribery and anti-money laundering |
Each Obligor shall (and the Company shall ensure that each Material Subsidiary shall) ensure compliance with applicable Anti-Bribery and Corruption Laws and Anti-Money Laundering Laws, including by maintaining policies and procedures designed to promote and achieve compliance with such laws, in each case, if failure to do so has or is reasonably likely to have a material negative effect on the interests of the Lenders.
22.12 |
Acquisitions |
(a) |
No Obligor shall (and the Company shall ensure that no other member of the Group will) acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest in any of them). |
(b) |
Paragraph (a) above does not apply: |
(i) |
in respect of the acquisition of shares or participation interests (Gesellschaftsanteile) or any group of assets in each case disposed of by another member of the Group pursuant to a disposal permitted pursuant to paragraph (b)(ii) of Clause 22.4 (Disposals) above or of shares or participation interests (Gesellschaftsanteile) in any member of the Group from its minority shareholder(s); and |
131
(ii) |
to any acquisition of shares or participation interests (Gesellschaftsanteile) or any group of assets if: |
(A) |
no default is continuing on the date that the relevant purchaser legally commits to the acquisition (the SPA Signing Date) or would occur as a result of the acquisition; |
(B) |
the acquired company, business or undertaking is engaged in a business which is similar, ancillary, complementary or related to the business as carried on by the Group and is not subject to any Sanctions (subject to any anti-boycott carve-out in accordance with paragraphs (d) and (e) of Clause 22.10 applied mutatis mutandis); and |
(C)
(1) |
the aggregate consideration amount (including acquired Financial Indebtedness) for a single acquisition or for a series of related acquisitions does not exceed EUR 30,000,000; or |
(2) |
where the aggregate consideration amount (including acquired Financial Indebtedness) for a single acquisition or for a series of related acquisitions exceeds |
(aa) |
EUR 50,000,000, the Company delivers to the Agent, at least 5 (five) Business Days prior to the SPA Signing Date a certificate that: |
(x)the Leverage (calculated on a pro forma basis for such acquisition) on the assumption that the relevant acquisition occurred on the first day of the Relevant Period expiring on the most recent Quarter Date, does not exceed the covenanted Leverage for such Quarter Date; and
(y)based on the internal projections and reasonable assumptions of the Company the target undertaking has positive or would have positive EBITDA (on a pro forma basis);
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(bb) |
EUR 30,000,000, the Company delivers to the Agent, at least 5 (five) Business Days prior to the SPA Signing Date, only if available and subject to execution of any required non-reliance or release letters, the final form legal, tax and accounting due diligence reports and any other reports. |
22.13 |
Insurance |
Each Obligor shall (and the Company shall ensure that each member of the Group will) maintain insurances on and in relation to its business and assets against those material risks and to the extent as is usual for companies carrying on the same or substantially similar business.
22.14 |
Guarantors |
(a)The Company shall ensure that:
(i) |
within 30 Business Days after the date of this Agreement (the Initial Test Date): |
(A) |
each Material Subsidiary; and |
(B) |
each member of the Group as is necessary to ensure that the aggregate contributions to revenues (Umsatzerlöse) and total assets (Aktivvermögen) of all Guarantors (determined on the basis of the relevant Guarantor’s most recent annual IFRS unaudited group reporting used in the compilation of the annual audited consolidated financial statements of the Company and in each case excluding all intra-Group items and investments in Subsidiaries of any member of the Group) represent not less than 80 per cent. of consolidated revenues (Umsatzerlöse) and total assets (Aktivvermögen) of the Group (calculated on the basis of the most recent annual audited consolidated financial statements of the Company, but for this purpose disregarding from the denominator and numerator the revenues (Umsatzerlöse) and total assets (Aktivvermögen) of any Excluded Subsidiary) (the Guarantor Coverage Test), provided that such members of the Group shall include the Original Additional Guarantors, |
accedes to this Agreement and to the Guarantee and Security Trust Agreement as an Additional Guarantor; and of the delivery of the annual audited consolidated financial statements of the Company for the relevant financial year, evidencing that it has become a Material Subsidiary, accede to this Agreement and to the Guarantee and Security Trust Agreement as an Additional Guarantor.
133
(C) |
Transaction Security is granted over 100% of the share capital of each of the Original Additional Guarantors and rights ancillary thereto on a first-ranking basis; and |
(ii) |
each member of the Group which is or becomes a Material Subsidiary (by reference to the most recent annual audited consolidated financial statements of the Company delivered to the Agent under this Agreement (to be tested for the first time on the basis of such annual financial statements delivered for the financial year ending 31 December 2024)) and which is not already an Guarantor shall, |
(A) |
in relation to any Material Subsidiary incorporated or established in Germany within 30 Business Days; and |
(B) |
in relation to any Material Subsidiary incorporated or established in a jurisdiction other than Germany within 60 Business Days, |
(b) |
Following the Initial Test Date, satisfaction of the Guarantor Coverage Test shall be determined on an annual basis by reference to the latest annual audited consolidated financial statements of the Company delivered to the Agent under this Agreement (to be tested for the first time on the basis of such annual financial statements delivered for the financial year ending 31 December 2024). The Company shall ensure that any member of the Group required to become an Additional Guarantor in order to satisfy the Guarantor Coverage Test by reference to such annual financial statements, but otherwise calculated in accordance with paragraph (a) above, |
(i) |
in relation to any member of the Group incorporated or established in Germany within 30 Business Days; and |
(ii) |
in relation to any member of the Group incorporated or established in a jurisdiction other than Germany within 60 Business Days, |
of the delivery of the relevant annual financial statements accedes to this Agreement and to the Guarantee and Security Trust Agreement as an Additional Guarantor.
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(c) |
Transaction Security shall be granted over 100% of the share capital (and rights ancillary thereto) of any Additional Guarantor on a first-ranking basis by any relevant member of the Group entering into respective Transaction Security Documents. |
(d) |
No member of the Group which is an Excluded Subsidiary shall be required to accede to this Agreement or to the Guarantee and Security Trust Agreement as an Additional Guarantor. |
(e) |
The amount guaranteed by any Guarantor shall be limited to the Guarantee Amount Limit. |
(f) |
Original Additional Guarantor means each of the following entities: |
(i) |
Evotec International GmbH, Hamburg, Germany |
(ii) |
Evotec (Hamburg) GmbH, Hamburg, Germany |
(iii) |
Evotec (France) SAS, Toulouse, France |
(iv) |
Just-Evotec Biologics EU SAS, Toulouse, France |
(v) |
Aptuit (Verona) S.r.l., Verona, Italy |
(vi) |
Evotec (UK) Limited, Abingdon, United Kingdom |
(vii) |
Aptuit Global LLC, Princeton, USA |
(viii) |
Evotec (US), Inc., Princeton, USA |
(ix) |
Just - Evotec Biologics, Inc, Seattle, USA |
23. |
EVENTS OF DEFAULT |
Each of the events or circumstances set out in Clause 23 is an Event of Default (save for Clause 23.17 (Acceleration)).
23.1Non-payment
An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless:
(a) |
its failure to pay is caused by administrative or technical error; and |
(b) |
payment is made within 5 (five) Business Days following its due date. |
23.2 |
Financial covenant |
Any requirement of Clause 21.2 (Financial condition) is not satisfied.
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23.3 |
Other obligations |
(a) |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 23.1 (Non-payment) and Clause 23.2 (Financial covenant)). |
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within fifteen (15) Business Days of the earlier of (i) the Agent giving written notice to the Company and (ii) any Obligor becoming aware of the failure to comply. |
23.4Misrepresentation
(a) |
Any representation or statement made or deemed to be made by or on behalf of an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made. |
(b) |
No Event of Default under paragraph (a) above will occur if the relevant underlying circumstances are capable of remedy and are remedied within twenty (20) Business Days of the earlier of (i) the Agent giving notice to the Company and (ii) any Obligor becoming aware of the misrepresentation. |
23.5Cross default
(a) |
Any Financial Indebtedness of any Obligor or any Material Subsidiary which is not owed to another member of the Group is not paid when due nor within any originally applicable grace period. |
(b) |
Any Financial Indebtedness of any Obligor or any Material Subsidiary which is not owed to another member of the Group is declared (such declaration not being disputed in good faith) to be or otherwise becomes, due and payable prior to its specified maturity as a result of an event of default (however described). |
(c) |
Any creditor of any Obligor or any Material Subsidiary becomes entitled to declare any Financial Indebtedness of any Obligor or any Material Subsidiary due and payable prior to its specified maturity as a result of an event of default (howsoever described). |
(d) |
No Event of Default will occur under this Clause 23.5 if the aggregate amount of Financial Indebtedness falling within paragraphs (a) to (c) above is less than or equal to EUR 20,000,000 (or its equivalent in any other currency or currencies). |
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(e) |
Paragraph (d) of this Clause 23.5 does not apply to any Financial Indebtedness of any Obligor or any Material Subsidiary under any IKB Loan Agreement. |
(f) |
In respect of any Financial Indebtedness owed to the European Investment Bank (the EIB) the following shall apply: in case the EIB becomes entitled to declare any Financial Indebtedness of any Obligor or any Material Subsidiary due and payable prior to its specified maturity solely as a result of an event of default under the respective clause 9.1 (c) of the relevant EIB financing contract (in its form as at the date of this Agreement (as has been made available by the Company to the Finance Parties prior to the date of this Agreement)) and such event of default under the EIB financing contract results from a default under any financing agreement which is not an event of default, then paragraph (c) of this Clause 23.5 shall only apply from the date such default becomes an event of default. |
23.6Insolvency
(a) |
An Obligor or a Material Subsidiary: |
(i) |
is unable or admits inability to pay its debts as they fall due; |
(ii) |
suspends making payments on any of its debts; or |
(iii) |
by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness. |
(b) |
An Obligor or a Material Subsidiary incorporated in Germany is unable to pay its debts as they fall due (zahlungsunfähig) within the meaning of section 17 of the Insolvency Code (Insolvenzordnung) or is overindebted within the meaning of section 19 of the Insolvency Code (Insolvenzordnung) or, with respect to any other Obligor or Material Subsidiary, the value of the assets of any Obligor or Material Subsidiary is less than its liabilities (taking into account contingent and prospective liabilities), and this constitutes an event under the relevant applicable jurisdiction of incorporation of such Obligor or Material Subsidiary entitling or obliging any person to file for the opening of insolvency or similar proceedings. |
(c) |
Any of the circumstances set out in either (i) Articles 2446 and 2447, or (ii) Articles 2482-bis and 2482-ter of the Italian Civil Code occurs in respect to any Italian Obligor. |
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(d) |
A moratorium is declared in respect of any indebtedness of any Obligor or Material Subsidiary. |
23.7Insolvency proceedings
(a) |
Other than as set forth in clause (c) below, any corporate action, legal proceedings or other procedure or step is taken in relation to: |
(i) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor or any Material Subsidiary other than a solvent liquidation or reorganisation of any member of the Group which is not an Obligor; |
(ii) |
a composition, compromise, assignment or arrangement with the creditors or any class of creditors of any Obligor or any Material Subsidiary by reason of actual or anticipated financial difficulties; |
(iii) |
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any member of any Obligor or any Material Subsidiary or any of its assets; or |
(iv) |
enforcement of any Security over any assets of any Obligor or any Material Subsidiary having an aggregate value of EUR 10,000,000 or more (or its equivalent in any other currency or currencies), |
or any analogous procedure or step is taken in any jurisdiction.
(b) |
An involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction in the US seeking: |
(i) |
relief in respect of any Obligor or a Material Subsidiary, or of a substantial part of the property or assets of any Obligor, under US Bankruptcy Law; |
(ii) |
the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Obligor or a Material Subsidiary or for any substantial part of the business or substantial assets of any Obligor; or |
(iii) |
the winding-up or liquidation of any Obligor, |
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and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered.
(c) |
Any Obligor shall: |
(i) |
voluntarily commence any proceeding or file any petition seeking relief under US Bankruptcy Law; |
(ii) |
consent to the institution of, or fail to consent in a timely and appropriate manner, any proceeding or the filing of any petition described in paragraph (a) above; |
(iii) |
consent to the entry of an order for relief against it in an involuntary case under US Bankruptcy Law; |
(iv) |
make a general assignment for the benefit of its creditors; |
(v) |
apply for or consent to the appointment, pursuant to the laws of the US or any state thereof, of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Obligor or for any substantial part of the business or substantial assets of any Obligor; or |
(vi) |
with respect to any US Obligor, take any comparable action to that described in sub-paragraphs (i) to (v) (inclusive) of this paragraph (c) under any foreign laws relating to insolvency. |
(d) |
This Clause 23.7 shall not apply to any action, proceeding or other procedure or step which is frivolous or vexatious and is discharged, stayed or dismissed within twenty (20) days of commencement. |
23.8 |
Creditors’ process |
Any expropriation, attachment, sequestration, distress or execution affects any asset or assets of an Obligor or a Material Subsidiary having an aggregate value of EUR 10,000,000 or more (or its equivalent in any other currency or currencies) and is not discharged within twenty (20) days.
23.9 |
Ownership of the Obligors |
An Obligor (other than the Company) is not or ceases to be a wholly-owned Subsidiary of the Company except (in each case) as a result of a disposal permitted pursuant to paragraph (b) of Clause 22.4 Disposals) or paragraph (b) of Clause 22.8 (Merger).
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23.10 |
Unlawfulness |
(a) |
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents. |
(b) |
Any obligation or obligations of any Obligor under any Finance Documents are not (subject to the Legal Reservations) or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively is adverse in any material respect to the Lenders. |
(c) |
Any Finance Document is not effective. |
23.11Dividends
(a) |
The management board (Vorstand) of the Company proposes a dividend payment at a time an Event of Default is continuing or would result (pro forma taking into account such dividend) in an Event of Default. |
(b) |
The general meeting (Hauptversammlung) of the Company decides to distribute a dividend at a time an Event of Default is continuing or would result (pro forma taking into account such dividend) in an Event of Default. |
23.12 |
Cessation of business |
The Group (as a whole) ceases to carry on the business it carries on at the date of this Agreement.
23.13 |
Audit qualification |
The auditors of the Company qualify the annual audited consolidated financial statements of the Company and such qualification:
(a) |
concerns an inability to continue the business as a going concern (other than through a breach of the financial covenant or upcoming maturity of the Facility); or |
(b) |
is a result of inadequate provision of information, in each case in a manner which is materially adverse to the interests of the Lenders as a whole and in their capacity as such. |
23.14 |
Repudiation |
An Obligor repudiates a Finance Document or evidences an intention to repudiate a Finance Document.
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23.15 |
ERISA Events |
One or more ERISA Events occur that, individually or taken together with any other ERISA Event, result in liability of any Obligor in an aggregate amount that would reasonably be expected to have a Material Adverse Effect.
23.16 |
Material adverse change |
Any event or series of events occurs which has a Material Adverse Effect.
23.17 |
Acceleration |
(a) |
On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority Lenders: |
(i)by notice to the Company:
(A) |
cancel each Available Commitment of each Lender and/or each Ancillary Commitment of each Ancillary Lender whereupon each such Available Commitment and Ancillary Commitment shall immediately be cancelled and each Facility shall immediately cease to be available for further utilisation; |
(B) |
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; |
(C) |
declare all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities to be immediately due and payable, whereupon they shall become immediately due and payable; |
(D) |
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders; and/or |
(E) |
declare that all or any part of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders. |
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(ii) |
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents. |
(b) |
If any Borrower becomes subject to a proceeding under the US Bankruptcy Code: |
(i) |
the Total Commitments in relation to such Borrower shall immediately and automatically be cancelled; and |
(ii) |
all of the Loans made to such Borrower, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents, and all of the amounts (or cash cover in relation to those amounts) outstanding under the Ancillary Facilities with respect to such Borrower and any other sum then outstanding under this Agreement and any of the other Finance Documents owing by such Borrower shall be immediately and automatically due and payable, |
in each case automatically and without any direction, notice, declaration or other act.
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SECTION 9
CHANGES TO PARTIES
24. |
CHANGES TO THE LENDERS |
24.1Assignments and transfers by the Lenders
Subject to this Clause 24, a Lender (the Existing Lender) may:
(a)assign any of its rights; or
(b) |
assign and transfer by assumption of contract (Vertragsübernahme) any of its rights and obligations, |
to an Eligible Institution (the New Lender).
24.2 |
Conditions of assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) |
(a) |
Each assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) by an Existing Lender requires the prior consent of the Company (not to be unreasonably withheld or delayed), unless the assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) is: |
(i) |
to another Lender or an Affiliate of a Lender; or |
(ii) |
made at a time when an Event of Default is continuing. |
(b) |
In any case, no assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) may be made by an Existing Lender to an Industry Competitor of the Group without the prior consent of the Company (in its sole discretion). |
(c) |
The Company will be deemed to have given its consent ten (10) Business Days after the Existing Lender has requested it unless consent is expressly refused by the Company within that time. |
(d) |
An assignment will only be effective on: |
(i) |
receipt by the Agent of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it had been an Original Lender; and |
(ii) |
performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the |
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completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.
(e) |
An assignment and transfer by way of assumption of contract (Vertragsübernahme) will only be effective if the procedure set out in Clause 24.5 (Procedure for assignment and transfer by way of assumption of contract (Vertragsübernahme)) is complied with. |
(f) |
Any assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) by a Lender of part of a Commitment or rights and obligations under the Finance Documents shall be for a minimum aggregate amount of EUR 10,000,000 (or its equivalent in another currency or currencies), or if less, all of its Commitment, provided that such minimum amount does not apply at a time when an Event of Default is continuing. Any assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) shall not result in the aggregate amount of the Commitments of any of the Existing Lender and the New Lender (in each case taking into account any Commitments of their respective Affiliates), falling below EUR 10,000,000 (or its equivalent in another currency or currencies), unless in each case the Existing Lender ceases to be a Lender upon completion of such assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme). |
(g) |
If: |
(i) |
a Lender assigns or assigns and transfers by way of assumption of contract (Vertragsübernahme) any of its rights or obligations under the Finance Documents or changes its Facility Office; and |
(ii) |
as a result of circumstances existing at the date the assignment, assignment and transfer by way of assumption of contract (Vertragsübernahme) or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 14 (Tax gross-up and indemnities) or Clause 15 (Increased Costs), |
then the New Lender or the Lender acting through its new Facility Office is entitled to receive payment under those Clauses but only to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, assignment and transfer by way of assumption of contract (Vertragsübernahme) or change had not occurred.
(h) |
Each New Lender, by executing the relevant Transfer Certificate confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved |
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by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the assignment and transfer by way of assumption of contract (Vertragsübernahme) or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
(i) |
For the purposes of and pursuant to Article 1263 of the Italian Civil Code, it is hereby expressly agreed that, in the event of any assignment of rights or obligations made by a Lender under Clause 24 (Changes to the Lenders), the guarantee granted by each Italian Guarantor shall be preserved, without novation (novazione), for the benefit of the New Lender and each other Lender in accordance with the terms of the Finance Documents. |
(j) |
For the purposes of article 1407, paragraph 1, of the Italian Civil Code, each of the Parties provides its consent to the transfer (cessione), in whole or in part, by any Existing Lender of its contractual position (i.e. its rights and obligations) under this Agreement and the other Finance Documents in favour of any New Lender in accordance with the provisions of this Clause 24.2 and agrees that upon transfer, in accordance with a Transfer Certificate and this Clause 24.2, the guarantees and security interests created under the Finance Documents shall be preserved, without novation (novazione), for the benefit of any New Lender. |
24.3 |
Assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) fee |
The New Lender shall, on the date upon which an assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) takes effect, pay to the Agent (for its own account) a fee of EUR 4,000.
24.4 |
Limitation of responsibility of Existing Lenders |
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for: |
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents; |
(ii) |
the financial condition of any Obligor; |
(iii) |
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or |
145
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document, |
and any representations or warranties implied by law are excluded.
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties that it: |
(i) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender or any other Finance Party in connection with any Finance Document; and |
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force. |
(c) |
Nothing in any Finance Document obliges an Existing Lender to: |
(i) |
accept a re-assignment or a re-assignment and re-transfer by way of assumption of contract (Vertragsübernahme) from a New Lender of any of the rights and obligations assigned or assigned and transferred by way of assumption of contract (Vertragsübernahme) under this Clause 24; or |
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise. |
24.5 |
Procedure for assignment and transfer by way of assumption of contract (Vertragsübernahme) |
(a) |
Subject to the conditions set out in Clause 24.2 (Conditions of assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme)) an assignment and transfer by way of assumption of contract (Vertragsübernahme) is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of |
146
this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
(b) |
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assignment and transfer by way of assumption of contract (Vertragsübernahme) to such New Lender. |
(c) |
Subject to Clause 24.8 (Pro rata interest settlement), on the Transfer Date: |
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to assign and transfer by way of assumption of contract (Vertragsübernahme) its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the Terminated Rights and Obligations); |
(ii) |
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Terminated Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender; |
(iii) |
the Agent, the Arranger, the Security Agent, the New Lender, the relevant Ancillary Lender and the other Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Transaction Security as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the assignment and transfer by way of assumption of contract (Vertragsübernahme) and to that extent the Agent, the Arranger, the Security Agent, the relevant Ancillary Lender and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and |
(iv) |
the New Lender shall become a Party as a “Lender”. |
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24.6 |
Copy of Transfer Certificate, Increase Confirmation or Accordion Increase Confirmation to Company |
The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate, an Increase Confirmation or an Accordion Increase Confirmation, send to the Company a copy of that Transfer Certificate, Increase Confirmation or an Accordion Increase Confirmation.
24.7 |
Security over Lenders’ rights |
(a) |
In addition to the other rights provided to Lenders under this Clause 24, each Lender may without consulting with or obtaining consent from any Obligor, at any time assign, charge, pledge or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation: |
(i) |
any assignment, charge, pledge or other Security to secure obligations to a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) including, without limitation, any assignment of rights to a special purpose vehicle where Security over securities issued by such special purpose vehicle is to be created in favour of a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank); and |
(ii) |
any assignment, charge, pledge or other Security granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities, |
except that no such assignment, charge, pledge or Security shall:
(A) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant assignment, charge, pledge or Security for the Lender as a party to any of the Finance Documents; or |
(B) |
require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents. |
(b) |
The limitations on assignments or transfers by a Lender set out in any Finance Document, in particular in Clause 24.1 (Assignments and transfers by the Lenders), Clause 24.2(Conditions of assignment or |
148
assignment and transfer by assumption of contract (Vertragsübernahme)) and Clause 24.3 (Assignment or assignment and transfer by assumption of contract (Vertragsübernahme) fee), and the provisions set out in Clause 36 (Confidential Information) shall not apply to the creation of Security pursuant to paragraph (a)(i) above.
(c) |
The limitations and provisions referred to in paragraph (b) above shall further not apply to any assignment or transfer of rights under the Finance Documents made by a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) to a third party in connection with the enforcement (Verwertung) of Security created pursuant to paragraph (a)(i) above. |
(d) |
Any Lender may disclose such Confidential Information as that Lender is required to disclose to a federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) to (or through) whom it creates Security pursuant to paragraph (a)(i) above, and any federal reserve or central bank (including, for the avoidance of doubt, the European Central Bank) may disclose such Confidential Information to a third party to whom it assigns or assigns and transfers by assumption of contract (Vertragsübernahme) (or may potentially assign or assigns and transfers by assumption of contract (Vertragsübernahme)) rights under the Finance Documents in connection with the enforcement of such Security. |
24.8Pro rata interest settlement
(a) |
If the Agent has notified the Lenders that it is able to distribute interest payments on a “pro rata basis” to Existing Lenders and New Lenders then (in respect of any assignment or assignment and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 24.5 (Procedure for assignment and transfer by assumption of contract (Vertragsübernahme)) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period): |
(i) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (Accrued Amounts) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, with respect to Loans, if the Interest Period is longer than six Months, on the next of the dates which falls at six Monthly intervals after the first day of that Interest Period); and |
149
(ii) |
the rights assigned or assigned and transferred by assumption of contract (Vertragsübernahme) by the Existing Lender will not include the right to the Accrued Amounts so that, for the avoidance of doubt: |
(A) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and |
(B) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 24.8, have been payable to it on that date, but after deduction of the Accrued Amounts. |
(b) |
In this Clause 24.8 references to “Interest Period” shall be construed to include a reference to any other period for accrual of fees. |
(c) |
An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 24.8 but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents. |
24.9 |
Sub-participation |
Sub-participations shall be subject to the same restrictions (as set out in this Clause 24 (Changes to the Lenders)) as assignments or assignments and transfers by assumption of contract (Vertragsübernahme), unless the Lender has retained its voting rights in relation to the Facility against the sub-participant (including in relation to synthetic securitizations).
24.10 |
French law provisions |
To the extent that any transfer by way of novation under this Agreement is deemed to be a novation (novation) within the meaning of articles 1329 et seq. of the French Civil Code, any Existing Lender expressly reserves and maintains its rights under the Finance Documents for the benefit of the relevant New Lender in accordance with the provisions of article 1334 of the French Civil Code so that any Security created under any Transaction Security Documents governed by French law and the obligations of each French Guarantor under this Agreement will continue in full force for the benefit of the then Lenders following any such transfer by way of novation.
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25. |
CHANGES TO THE OBLIGORS |
25.1 |
Assignments and transfers by Obligors |
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
25.2 |
Additional Borrowers |
(a) |
Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 20.8 (“Know your customer” checks), the Company may request that any of its wholly-owned Subsidiaries becomes an Additional Borrower (Vertragsbeitritt). That Subsidiary shall become an Additional Borrower if: |
(i)either:
(A) |
it is incorporated in the same jurisdiction as an existing Borrower; or |
(B) |
the Agent (acting on the instructions of all the Lenders) approves the addition of that Subsidiary; |
(ii) |
the Company and that Subsidiary delivers to the Agent a duly completed and executed Accession Letter; |
(iii) |
that Subsidiary is (or becomes) a Guarantor prior to (or simultaneously with) becoming an Additional Borrower; |
(iv) |
the Company confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and |
(v) |
the Agent has received all of the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent) in relation to that Additional Borrower, each in form and substance satisfactory to the Agent. |
(b) |
The Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent). |
(c) |
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (b) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. |
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25.3Resignation of a Borrower
(a) |
The Company may request that a Borrower (other than the Company) ceases to be a Borrower by delivering to the Agent a Resignation Letter. |
(b) |
The Agent shall accept a Resignation Letter and notify the Company and the Lenders of its acceptance if: |
(i) |
no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case); and |
(ii) |
the Borrower is under no actual or contingent obligation as a Borrower under any Finance Documents, |
whereupon that company shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents.
25.4Additional Guarantors
(a) |
Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 20.8 (“Know your customer” checks), the Company may request that any of its wholly-owned Subsidiaries become an Additional Guarantor. That Subsidiary shall become an Additional Guarantor if: |
(i) |
it is not incorporated in an Excluded Jurisdiction; |
(ii) |
the Company delivers to the Agent a duly completed and executed Accession Letter; and |
(iii) |
the Agent has received all of the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent. |
(b) |
The Agent shall notify the Company and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part B of Schedule 2 (Conditions Precedent). |
(c) |
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (b) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. |
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25.5 |
Repetition of Representations |
Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the Repeating Representations are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.
25.6 |
Resignation of a Guarantor |
(a) |
The Company may request that a Guarantor (other than the Company) ceases to be a Guarantor by delivering to the Agent a Resignation Letter. |
(b) |
The Agent shall accept a Resignation Letter and notify the Company and the Lenders of its acceptance if: |
(i) |
no Default is continuing or would result from the acceptance of the Resignation Letter (and the Company has confirmed this is the case); and |
(ii) |
all the Lenders have consented to the Company’s request. |
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SECTION 10
THE FINANCE PARTIES
26. |
ROLE OF THE AGENT AND THE ARRANGERS |
26.1Appointment of the Agent
(a) |
Each of the Arrangers and the Lenders appoints the Agent to act as its agent with representative powers (con potere di rappresentanza for the purposes of Italian law) and attorney (Stellvertreter) under and in connection with the Finance Documents (with the express consent pursuant to articles 1394 and 1395 of the Italian Civil Code, for the purposes of Italian law). |
(b) |
Each of the Arrangers and the Lenders authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions. |
(c) |
Each of the Arrangers and the Lenders hereby exempts the Agent from the restrictions pursuant to section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law, in each case, to the extent legally possible to such Finance Party. A Finance Party which cannot grant such exemption shall notify the Agent accordingly. |
26.2Instructions
(a) |
The Agent shall: |
(i) |
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by: |
(A) |
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and |
(B) |
in all other cases, the Majority Lenders; and |
(ii) |
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above. |
(b) |
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, |
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and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
(c) |
Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties save for the Security Agent. |
(d) |
The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions. |
(e) |
In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders. |
(f) |
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (f) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Transaction Security Documents or enforcement of the Transaction Security or Transaction Security Documents |
26.3Duties of the Agent
(a) |
The Agent’s duties under the Finance Documents are solely mechanical and administrative in nature. |
(b) |
Subject to paragraph (c) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party. |
(c) |
Without prejudice to Clause 24.6 (Copy of Transfer Certificate, Increase Confirmation or an Accordion Increase Confirmation to Company), paragraph (b) above shall not apply to any Transfer Certificate, any Increase Confirmation or an Accordion Increase Confirmation. |
(d) |
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. |
155
(e) |
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties. |
(f) |
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent, the Arranger or the Security Agent) under this Agreement, it shall promptly notify the other Finance Parties. |
(g) |
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied). |
26.4 |
Role of the Arranger |
Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document.
26.5 |
No fiduciary duties |
(a) |
Nothing in any Finance Document constitutes the Agent or the Arranger as a trustee (Treuhänder) of any other person. Neither the Agent nor the Arranger has any financial or commercial duty of care (Vermögensfürsorgepflicht) for any person. |
(b) |
None of the Agent, the Arranger or any Ancillary Lender shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account. |
26.6 |
Business with the Group |
The Agent, the Arranger and each Ancillary Lender may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group.
26.7 |
Rights and discretions |
(a)The Agent may:
(i) |
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; |
(ii) |
assume that: |
(A) |
any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly |
156
given in accordance with the terms of the Finance Documents; and
(B) |
unless it has received notice of revocation, that those instructions have not been revoked; and |
(iii)rely on a certificate from any person:
(A) |
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or |
(B) |
to the effect that such person approves of any particular dealing, transaction, step, action or thing, |
as sufficient evidence that that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.
(b) |
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that: |
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 23.1 (Non-payment)); |
(ii) |
any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and |
(iii) |
any notice or request made by the Company (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors. |
(c) |
The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts. |
(d) |
Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary. |
(e) |
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying. |
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(f) |
The Agent may act in relation to the Finance Documents through its officers, employees and agents. |
(g) |
Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement. |
(h) |
Without prejudice to the generality of paragraph (g) above, the Agent: |
(i) |
may disclose; and |
(ii) |
on the written request of the Company or the Majority Lenders shall, as soon as reasonably practicable, disclose, |
the identity of a Defaulting Lender to the Company and to the other Finance Parties.
(i) |
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. In particular, and for the avoidance of doubt, nothing in any Finance Document shall be construed so as to constitute an obligation of the Agent or the Arranger to perform any services which it would not be entitled to render pursuant to the provisions of the German Act on Rendering Legal Services (Rechtsdienstleistungsgesetz) or pursuant to the provisions of the German Tax Advisory Act (Steuerberatungsgesetz) or any other services that require an express official approval, licence or registration, unless the Agent or Arranger (as the case may be) holds the required approval, licence or registration. |
(j) |
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it. |
26.8Responsibility for documentation
None of the Agent, the Arranger or any Ancillary Lender is responsible or liable for:
(a) |
the adequacy, accuracy or completeness of any information (whether oral or written) supplied by the Agent, the Arranger, an Ancillary Lender, an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance |
158
Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security; or |
(c) |
any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise. |
26.9No duty to monitor
The Agent shall not be bound to enquire:
(a) |
whether or not any Default has occurred; |
(b) |
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or |
(c) |
whether any other event specified in any Finance Document has occurred. |
26.10Exclusion of liability
(a) |
Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent or any Ancillary Lender), none of the Agent or any Ancillary Lender will be liable for: |
(i) |
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Transaction Security, unless directly caused by its gross negligence or wilful misconduct; |
(ii) |
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or the Transaction Security or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Transaction Security, other than by reason of its gross negligence or wilful misconduct; or |
159
(iii) |
without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (but not including any claim based on the fraud of the Agent) arising as a result of: |
(A) |
any act, event or circumstance not reasonably within its control; or |
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction, |
including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets; breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.
(b) |
No Party (other than the Agent or an Ancillary Lender (as applicable)) may take any proceedings against any officer, employee or agent of the Agent or any Ancillary Lender in respect of any claim it might have against the Agent or an Ancillary Lender or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent or any Ancillary Lender may rely on this paragraph (b) pursuant to section 328 para. 1 of the German Civil Code (Bürgerliches Gesetzbuch) (echter berechtigender Vertrag zugunsten Dritter). |
(c) |
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for that purpose. |
(d) |
Nothing in this Agreement shall oblige the Agent or the Arranger to carry out: |
(i) |
any “know your customer” or other checks in relation to any person; or |
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(ii) |
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender or for any Affiliate of any Lender, |
on behalf of any Lender and each Lender confirms to the Agent and the Arranger that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent or the Arranger.
(e) |
Without prejudice to any provision of any Finance Document excluding or limiting the Agent’s liability, any liability of the Agent arising under or in connection with any Finance Document or the Transaction Security shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages. |
26.11 |
Lenders’ indemnity to the Agent |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent, within three (3) Business Days of demand, against any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent’s gross negligence or wilful misconduct) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).
26.12 |
Resignation of the Agent |
(a) |
The Agent may resign and appoint one of its Affiliates (acting through an office in France, Luxembourg, Germany or the United Kingdom) as successor by giving notice to the Lenders and the Company. |
(b) |
Alternatively the Agent may resign by giving thirty (30) days’ notice to the Lenders and the Company, in which case the Majority Lenders (with the consent of the Company) may appoint a successor Agent (acting through an office in France, Luxembourg, Germany or the United Kingdom), provided that the consent of the Company shall not be required (but a consultation with the Company) in case of an appointment of a Lender as Agent. |
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(c) |
If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within twenty (20) days after notice of resignation was given, the retiring Agent (after consultation with the Company) may appoint a successor Agent (acting through an office in France, Luxembourg, Germany or the United Kingdom), provided that the successor Agent is not a German Non-Cooperative Jurisdiction Finance Party. |
(d) |
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents. |
(e) |
The Agent’s resignation notice shall only take effect upon the appointment of a successor. |
(f) |
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (d) above) but shall remain entitled to the benefit of Clause 16.3 (Indemnity to the Agent) and this Clause 26 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party. |
(g) |
The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three (3) months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either: |
(i) |
the Agent fails to respond to a request under Clause 14.8 (FATCA Information) and the Company or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
(ii) |
the information supplied by the Agent pursuant to Clause 14.8 (FATCA Information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or |
(iii) |
the Agent notifies the Company and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
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and (in each case) the Company or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and the Company or that Lender, by notice to the Agent, requires it to resign.
26.13Replacement of Agent
(a) |
With the consent of the Company, the Majority Lenders may, by giving thirty (30) days’ notice to the Agent (or, at any time the Agent is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders) replace the Agent by appointing a successor Agent (acting through an office in France, Luxembourg, Germany or the United Kingdom), provided that the consent of the Company shall not be required (but a consultation with the Company) in case of an appointment of a Lender as Agent. |
(b) |
The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents. |
(c) |
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of Clause 16.3 (Indemnity to the Agent) and this Clause 26 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). |
(d) |
Any successor Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party. |
26.14Confidentiality
(a) |
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments. |
(b) |
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it. |
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26.15Relationship with the Lenders
(a) |
Subject to Clause 24.8 (Pro rata interest settlement), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent’s principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office: |
(i) |
entitled to or liable for any payment due under any Finance Document on that day; and |
(ii) |
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day, |
unless it has received not less than five (5) Business Days’ prior notice from that Lender to the contrary in accordance with the terms of this Agreement.
(b) |
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address and (where communication by electronic mail or other electronic means is permitted under Clause 31.6 (Electronic communication)) electronic mail address and/or any other information required to enable the transmission of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, electronic mail address (or such other information), department and officer by that Lender for the purposes of Clause 31.2 (Addresses) and paragraph (a)(ii) of Clause 31.6 (Electronic communication) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender. |
26.16 |
Agent’s management time |
On and at any time after the occurrence of an Event of Default which is continuing any amount payable to the Agent under Clause 16.3 (Indemnity to the Agent), Clause 18 (Costs and expenses) and Clause 26.11 (Lenders’ indemnity to the Agent) shall include the cost of utilising the Agent’s management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates agreed between the Agent and the Company, and is in addition to any fee paid or payable to the Agent under Clause 13 (Fees).
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26.17 |
Credit appraisal by the Lenders and Ancillary Lenders |
Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender and Ancillary Lender confirms to the Agent, the Arranger and each Ancillary Lender that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:
(a) |
the financial condition, status and nature of each member of the Group; |
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the Transaction Security and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security; |
(c) |
whether that Lender or Ancillary Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the Transaction Security, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Transaction Security; |
(d) |
the adequacy, accuracy or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and |
(e) |
the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any of the Transaction Security or the existence of any Security affecting the Charged Property. |
26.18 |
Deduction from amounts payable by the Agent |
If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.
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26.19 |
Amounts paid in error |
(a) |
If the Agent pays an amount to another Party and within five (5) Business Days of the date of payment the Agent notifies that Party that such payment was an Erroneous Payment then the Party to whom that amount was paid by the Agent shall on demand refund the same to the Agent if and to the extent the Agent has provided to such other Party a confirmation in relation to the relevant amount, accompanied by a reasonably detailed calculation of such amount. |
(b) |
Neither: |
(i) |
the obligations of any Party to the Agent; nor |
(ii) |
the remedies of the Agent, |
(whether arising under this Clause 26.19 or otherwise) which relate to an Erroneous Payment will be affected by any act, omission, matter or thing which, but for this paragraph (b), would reduce, release or prejudice any such obligation or remedy (whether or not known by the Agent or any other Party).
(c) |
All payments to be made by a Party to the Agent (whether made pursuant to this Clause 26.19 or otherwise) which relate to an Erroneous Payment shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim. |
(d) |
In this Agreement, Erroneous Payment means a payment of an amount by the Agent to another Party which the Agent specifically determines (in its sole discretion) was made in error. |
27. |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES |
No provision of this Agreement will:
(a) |
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; |
(b) |
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or |
(c) |
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax. |
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28. |
SHARING AMONG THE FINANCE PARTIES |
28.1Payments to Finance Parties
(a) |
If a Finance Party (a Recovering Finance Party) receives or recovers any amount from an Obligor other than in accordance with Clause 29 (Payment mechanics) and applies that amount to a payment due under the Finance Documents then: |
(i) |
the Recovering Finance Party shall, within three (3) Business Days, notify details of the receipt or recovery to the Agent; |
(ii) |
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 29 (Payment mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and |
(iii) |
the Recovering Finance Party shall, within three (3) Business Days of demand by the Agent, pay to the Agent an amount (the Sharing Payment) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 29.6 (Partial payments). |
(b) |
Paragraph (a) above shall not apply to any amount received or recovered by an Ancillary Lender in respect of any cash cover provided for the benefit of that Ancillary Lender. |
28.2 |
Redistribution of payments |
The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) in accordance with Clause 29.5 (Partial payments).
28.3 |
Recovering Finance Party’s rights |
(a) |
On a distribution by the Agent under Clause 28.2 (Redistribution of payments), the Recovering Finance Party shall be entitled to receive by way of assignment the rights of the Finance Parties to the extent they have shared in the redistribution. |
(b) |
If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the relevant Obligor shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable. |
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28.4Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:
(a) |
each Finance Party which has received a share of the relevant Sharing Payment pursuant to Clause 28.2 (Redistribution of payments) shall, upon request of the Agent, pay to the Agent for account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay); and |
(b) |
that Recovering Finance Party’s rights of assignment in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount so reimbursed and the Recovering Finance Party shall re-assign any claims assigned to it pursuant to paragraph (a) of Clause 28.3 (Recovering Finance Party’s rights). |
28.5Exceptions
(a) |
This Clause 28 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor. |
(b) |
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if: |
(i) |
it notified that other Finance Party of the legal or arbitration proceedings; and |
(ii) |
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings. |
28.6Ancillary Lenders
(a) |
This Clause 28 shall not apply to any receipt or recovery by a Lender in its capacity as an Ancillary Lender at any time prior to service of notice under Clause 23.17 (Acceleration). |
(b) |
Following service of notice under Clause 23.17 (Acceleration), this Clause 28 shall apply to all receipts or recoveries by Ancillary Lenders (where the Ancillary Facility is provided on a net limit basis except to the extent that the receipt or recovery represents a reduction of any gross outstandings down to the net limit). |
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SECTION 11
ADMINISTRATION
29. |
PAYMENT MECHANICS |
29.1Payments to the Agent
(a) |
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, excluding a payment under the terms of an Ancillary Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment. |
(b) |
Payment shall be made to such account in the principal financial centre of the country of that currency (or, in relation to euro, in a principal financial centre in such Participating Member State or London, as specified by the Agent) and with such bank as the Agent, in each case, specifies, other than a French Non-Cooperative Jurisdiction as far as payments from French Guarantors are concerned. |
29.2 |
Distributions by the Agent |
Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 29.3 (Distributions to an Obligor) and Clause 29.4 (Clawback and pre-funding) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account and with such bank in the US, any Participating Member State or the United Kingdom as that Party may notify to the Agent by not less than five (5) Business Days’ notice.
29.3 |
Distributions to an Obligor |
The Agent may (with the consent of the Obligor or in accordance with Clause 30 (Set-off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.
29.4 |
Clawback and pre-funding |
(a) |
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it |
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has been able to establish to its satisfaction that it has actually received that sum.
(b) |
Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds. |
(c) |
If the Agent is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower: |
(i) |
the Agent shall notify the Company of that Lender’s identity and the Borrower to whom that sum was made available shall on demand refund it to the Agent; and |
(ii) |
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender. |
29.5Impaired Agent
(a) |
If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 29.1 (Payments to the Agent) may instead either: |
(i) |
pay that amount direct to the required recipient(s); or |
(ii) |
if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or the relevant part of that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment (the Paying Party) and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the Recipient Party or Recipient Parties). |
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In each case such payments must be made on the due date for payment under the Finance Documents.
(b) |
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro rata to their respective entitlements. |
(c) |
A Party which has made a payment in accordance with this Clause 29.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account. |
(d) |
Promptly upon the appointment of a successor Agent in accordance with Clause 26.13 (Replacement of Agent), each Paying Party shall (other than to the extent that that Party has given an instruction pursuant to paragraph (e) below) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to the relevant Recipient Party or Recipient Parties in accordance with Clause 29.2 (Distributions by the Agent). |
(e) |
A Paying Party shall, promptly upon request by a Recipient Party and to the extent: |
(i) |
that it has not given an instruction pursuant to paragraph (d) above; and |
(ii) |
that it has been provided with the necessary information by that Recipient Party, |
give all requisite instructions to the bank with whom the trust account is held to transfer the relevant amount (together with any accrued interest) to that Recipient Party.
29.6Partial payments
(a) |
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order: |
(i) |
first, in or towards payment pro rata of any unpaid amount owing to the Agent under the Finance Documents; |
(ii) |
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement; |
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(iii) |
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and |
(iv) |
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents. |
(b) |
The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (iv) above. |
(c) |
Paragraphs (a) and (b) above will override any appropriation made by an Obligor. |
29.7 |
No set-off by Obligors |
All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim, unless the counterclaim is undisputed or has been confirmed in a final non-appealable judgement. Any New Lender and any recipient of security over Lenders’ rights according to Clause 24.7 (Security over Lenders’ rights) may rely on this Clause 29.7, in the case of any New Lender to whom rights have been assigned according to Clause 24.2 (Conditions of assignment or assignment and transfer by assumption of contract (Vertragsübernahme)) and any recipient of security over Lenders’ rights, pursuant to section 328 para. 1 of the German Civil Code (Bürgerliches Gesetzbuch) (echter berechtigender Vertrag zugunsten Dritter).
29.8 |
Business Days |
(a) |
Any payment under the Finance Documents which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). |
(b) |
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date. |
29.9Currency of account
(a) |
Subject to paragraphs (b) to (e) below, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document. |
(b) |
A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated, pursuant to this Agreement, on its due date. |
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(c) |
Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated, pursuant to this Agreement, when that interest accrued. |
(d) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred. |
(e) |
Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency. |
29.10Change of currency
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then: |
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (acting reasonably and after consultation with the Company); and |
(ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably and after consultation with the Company). |
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Company) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Market and otherwise to reflect the change in currency. |
30. |
SET-OFF |
(a) |
A Finance Party may set off any matured obligation due from an Obligor under the Finance Documents against any satisfiable (erfüllbar) obligation (within the meaning of section 387 of the German Civil Code (Bürgerliches Gesetzbuch)) owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. |
(b) |
Any credit balances taken into account by an Ancillary Lender when operating a net limit in respect of any overdraft under an Ancillary Facility shall on enforcement of the Finance Documents be applied first |
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in reduction of the overdraft provided under that Ancillary Facility in accordance with its terms.
31. |
NOTICES |
31.1Communications in writing
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by e-mail or letter.
31.2Addresses
The address and e-mail address (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is:
| (a) |
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and
(d) |
in the case of each Arranger, each Lender, each Ancillary Lender or any other Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party, |
or any substitute address or e-mail address or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five (5) Business Days’ notice.
31.3Delivery
(a) |
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective when received (zugegangen), in particular: |
(i) |
if by way of email, when received in legible form; or |
(ii) |
if by way of letter, when it has been left at the relevant address, |
and, if a particular department or officer is specified as part of its address details provided under Clause 31.2 (Addresses), if addressed to that department or officer.
(b) |
Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent’s signature below (or any substitute department or officer as the Agent shall specify for this purpose). |
(c) |
All notices from or to an Obligor shall be sent through the Agent. |
(d) |
Any communication or document by the Finance Parties to the Obligors may be made or delivered to the Company for its own account and for the account of the Obligors. For that purpose each Obligor appoints the Company as its agent of receipt (Empfangsvertreter). |
(e) |
Any communication or document which becomes effective, in accordance with paragraphs (a) to (d) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day. |
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31.4 |
Notification of address and e-mail address |
Promptly upon changing its address or e-mail address, the Agent shall notify the other Parties.
31.5 |
Communication when Agent is Impaired Agent |
If the Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Agent has been appointed.
31.6 |
Electronic communication |
(a) |
Any communication or document to be made or delivered by one Party to another under or in connection with the Finance Documents may be made or delivered by electronic mail (including unencrypted electronic mail) or other electronic means (including, without limitation, by way of posting to a secure website) if those two Parties: |
(i) |
notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and |
(ii) |
notify each other of any change to their address or any other such information supplied by them by not less than five (5) Business Days’ notice. |
(b) |
Any such electronic communication or delivery as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication or delivery. |
(c) |
Any such electronic communication or document as specified in paragraph (a) above made or delivered by one Party to another will be effective only when actually received (or made available) in readable form and in the case of any electronic communication or document made or delivered by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose. |
(d) |
Any electronic communication or document which becomes effective, in accordance with paragraph (c) above, after 5:00 p.m. in the place in which the Party to whom the relevant communication or document is |
176
sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.
(e) |
Any reference in a Finance Document to a communication being sent or received or a document being delivered shall be construed to include that communication or document being made available in accordance with this Clause 31.6. |
31.7 English language
(a) |
Any notice given under or in connection with any Finance Document must be in English. |
(b) |
All other documents (other than the corporate documents referred to in Schedule 2 (Conditions Precedent) which may be in German or any other language being the original language of such document) provided under or in connection with any Finance Document must be: |
(i) |
in English; or |
(ii) |
if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. |
32. |
CALCULATIONS AND CERTIFICATES |
32.1 |
Accounts |
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.
32.2 |
Certificates and Determinations |
(a) |
The Finance Parties make the certifications or determinations of a rate or amount under any Finance Document in the exercise of their unilateral right to specify performance (einseitiges Leistungsbestimmungsrecht) which they will exercise with reasonable discretion (billiges Ermessen). |
(b) |
The Parties agree not to dispute in any legal proceeding the correctness of the determinations and certifications of a rate or amount made by a Finance Party under any Finance Document unless the determinations or certifications are inaccurate on their face or fraud can be shown. |
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32.3Day count convention and interest calculation
(a) |
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and the amount of any such interest, commission or fee is calculated: |
(i) |
on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Market differs, in accordance with that market practice; and |
(ii) |
subject to paragraph (b) below, without rounding. |
(b) |
The aggregate amount of any accrued interest, commission or fee which is or becomes, payable by an Obligor under a Finance Document shall be rounded to two decimal places. |
33. |
PARTIAL INVALIDITY |
The Parties agree that should at any time, any provisions of this Agreement be or become void (nichtig), invalid or due to any reason ineffective (unwirksam) this will indisputably (unwiderlegbar) not affect the validity or effectiveness of the remaining provisions and this Agreement will remain valid and effective, save for the void, invalid or ineffective provisions, without any Party having to argue (darlegen) and prove (beweisen) the Parties’ intent to uphold this Agreement even without the void, invalid or ineffective provisions.
The void, invalid or ineffective provision shall be deemed replaced by such valid and effective provision that in legal and economic terms comes closest to what the Parties intended or would have intended in accordance with the purpose of this Agreement if they had considered the point at the time of conclusion of this Agreement.
34. |
REMEDIES AND WAIVERS |
No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under a Finance Document shall operate as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any Finance Document on the part of any Finance Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document are cumulative and not exclusive of any rights or remedies provided by law.
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35. |
AMENDMENTS AND WAIVERS |
35.1Required consents
(a) |
Subject to Clause 35.2 (All Lender matters) and Clause 35.3 (Other exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Company and any such amendment or waiver will be binding on all Parties. |
(b) |
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 35. |
35.2All Lender matters
Subject to Clause 35.4 (Replacement of Screen Rate) an amendment or waiver of or in relation to, any term of any Finance Document that has the effect of changing or which relates to:
(a) |
the definition of “Majority Lenders” in Clause 1.1 (Definitions); |
(b) |
an extension to the date of payment of any amount under the Finance Documents; |
(c) |
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable; |
(d) |
a change in currency of payment of any amount under the Finance Documents; |
(e) |
an increase in any Commitment, an extension of the Availability Period or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility; |
(f) |
a change to the Borrowers or the Guarantors other than in accordance with Clause 25 (Changes to the Obligors); |
(g) |
a release of the Transaction Security or amendment to the Transaction Security Documents unless permitted under this Agreement or any other Finance Document; |
(h) |
any provision which expressly requires the consent of all the Lenders; |
(i) |
Clause 2.3 (Increase – Accordion Option), Clause 2.4 (Finance Parties’ rights and obligations), Clause 6.1 (Delivery of a Utilisation Request), Clause 9.1 (Illegality), Clause 9.2 (Change of control), Clause 10.4 (ESG Margin adjustment), Clause 19.16 (Sanctions, anti-corruption, anti-bribery and anti-money laundering) (including related definitions), Clause 22.10 (Sanctions) (including related definitions), Clause 22.11 (Anti-corruption, anti-bribery and anti-money laundering) |
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(including related definitions), Clause 24 (Changes to the Lenders), Clause 25 (Changes to the Obligors), Clause 28 (Sharing among the Finance Parties), this Clause 35, Clause 39 (Governing law) or Clause 40 (Jurisdiction); and
(j) |
the nature or scope or release of the guarantee and indemnity granted under Clause 2 (Guarantee and indemnity) of the Guarantee and Security Trust Agreement, shall not be made without the prior consent of all the Lenders. |
35.3 |
Other exceptions |
An amendment or waiver which relates to the rights or obligations of the Agent, the Arranger, the Security Agent or any Ancillary Lender (each in their capacity as such) may not be effected without the consent of the Agent, the Arranger, the Security Agent or that Ancillary Lender, as the case may be.
35.4 |
Replacement of Screen Rate |
(a) |
Subject to Clause 35.3 (Other exceptions), if a Screen Rate Replacement Event has occurred in relation to the Screen Rate, any amendment or waiver which relates to: |
(i) |
providing for the use of a Replacement Benchmark in place of the Screen Rate; and |
(A) |
aligning any provision of any Finance Document to the use of that Replacement Benchmark; |
(B) |
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement); |
(C) |
implementing market conventions applicable to that Replacement Benchmark; |
(D) |
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or |
(E) |
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally |
180
designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
may be made with the consent of the Agent (acting on the instructions of the Majority Lenders) and the Obligors.
(b) |
If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within ten (10) Business Days (or such longer time period in relation to any request which the Company and the Agent may agree) of that request being made: |
(i) |
its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and |
(ii) |
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request. |
35.5Disenfranchisement of Defaulting Lenders
(a) |
For so long as a Defaulting Lender has an Available Commitment, in ascertaining: |
(i) |
the Majority Lenders; or |
(ii) |
whether: |
(A) |
any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments; or |
(B) |
the agreement of any specified group of Lenders, |
has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents,
that Defaulting Lender’s Commitments will be reduced by the amount of its Available Commitment and, to the extent that that reduction results in that Defaulting Lender’s Total Commitments being zero, that Defaulting Lender shall be deemed not to be a Lender for the purposes of paragraphs (i) and (ii) above.
(b) |
For the purposes of this Clause 35.5, the Agent may assume that the following Lenders are Defaulting Lenders: |
181
(i) |
any Lender which has notified the Agent that it has become a Defaulting Lender; |
(ii) |
any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of “Defaulting Lender” has occurred, |
unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.
35.6Excluded Commitments
If any Lender or Defaulting Lender fails to respond to a request for a consent, waiver or amendment of or in relation to any term of any Finance Document or any other vote of Lenders under the terms of this Agreement within ten (10) Business Days (unless the Company and the Agent agree to a longer time period (but, for the avoidance of doubt, not to a shorter time period) in relation to any request) of that request being made:
(a) |
its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments has been obtained to approve that request; and |
(b) |
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request. |
35.7Non-Consenting Lender
In the event that:
(a) |
the Company or the Agent (at the request of the Company) has requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents; |
(b) |
the consent, waiver or amendment in question requires the approval of all the Lenders; and |
(c) |
Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66⅔ per cent. of the Total Commitments prior to that reduction) have consented or agreed to such waiver or amendment, |
182
then any Lender who does not and continues not to consent or agree to such waiver or amendment shall be deemed a Non-Consenting Lender.
35.8Replacement of a Defaulting Lender
(a) |
The Company may, at any time a Lender has become and continues to be a Defaulting Lender, by giving five (5) Business Days’ prior written notice to the Agent and such Lender: |
(i) |
replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) assign and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement; |
(ii) |
require such Lender to (and, to the extent permitted by law, such Lender shall) assign and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of the Available Commitment of the Lender; or |
(iii) |
require such Lender to (and, to the extent permitted by law, such Lender shall) assign and transfer by way of assumption of contract (Vertragsübernahme) pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of its rights and obligations in respect of the Facility, |
to a Lender or other bank or financial institution (a Replacement Lender) selected by the Company, which confirms its willingness to assume and does assume all the obligations or all the relevant obligations of the transferring Lender in accordance with Clause 24 (Changes to the Lenders) for a purchase price in cash payable at the time of transfer in an amount equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest (to the extent that the Agent has not given a notification under Clause 24.8 (Pro-rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents.
(b) |
Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause 35.8 shall be subject to the following conditions: |
(i) |
the Company shall have no right to replace the Agent; |
(ii) |
neither the Agent nor the Defaulting Lender shall have any obligation to the Company to find a Replacement Lender; |
183
(iii) |
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents; and |
(iv) |
the Defaulting Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) above once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer to the Replacement Lender. |
(c) |
The Defaulting Lender shall perform the checks described in paragraph (b)(iv) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (a) above and shall notify the Agent and the Company when it is satisfied that it has complied with those checks. |
36. |
CONFIDENTIAL INFORMATION |
36.1 |
Confidentiality |
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 24.7 (Security over Lenders’ rights) and Clause 36.2 (Disclosure of Confidential Information), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.
36.2 |
Disclosure of Confidential Information |
Any Finance Party may, subject (where applicable) to the provisions of article L. 511-33 of the French Monetary and Financial Code, disclose:
(a) |
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information; |
184
(b) |
to any person: |
(i)
(A) |
to (or through) whom it assigns or assigns and transfers by way of assumption of contract (Vertragsübernahme) (or may potentially assign or assign and transfer by way of assumption of contract (Vertragsübernahme)) all or any of its rights and/or obligations under one or more Finance Documents and, in each case, to any of that person’s Affiliates, Related Funds, Representatives and professional advisers; |
(B) |
appointed by a person to whom paragraph (b)(i)(A) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (b) of Clause 26.15 (Relationship with the Lenders)); |
(C) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i)(A) above; |
in each case, such Confidential Information as that Finance Party shall consider appropriate if:
(1) |
in relation to paragraphs (b)(i)(A) and (B) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information; and |
(2) |
in relation to paragraph (b)(i)(C) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; and |
185
(ii) |
appointed by a person to whom paragraph (b)(i)(A) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (ii) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party, |
provided that the Company’s prior consent is not required if such disclosure is to another Lender, an Affiliate of a Lender or a Representative or professional advisor of a Lender or made at a time when an Event of Default is continuing.
(c) |
to any person: |
(i) |
which succeeds (or which may potentially succeed) it as Agent and, in each case, to any of that person’s Affiliates, Related Funds, Representatives, auditors and professional advisers; |
(ii) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person’s Affiliates, Related Funds, Representatives and professional advisers; |
(iii) |
appointed by any Finance Party or by a person to whom paragraph (c)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (b) of Clause 26.15 (Relationship with the Lenders)); |
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (c)(ii) above; |
(v) |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, |
186
banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
(vi) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes; |
(vii) |
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 24.7 (Security over Lenders’ rights); |
(viii) |
who is a Party; |
(ix) |
insurers, re-insurers, insurance brokers and re-insurance brokers; or |
(x) |
with the consent of the Company; |
in each case, such Confidential Information as that Finance Party shall consider appropriate if:
(A) |
in relation to paragraph (c)(i), (c)(ii) and (c)(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information; |
(B) |
in relation to paragraph (c)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; |
(C) |
in relation to paragraphs (c)(v), (c)(vi) and (c)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances; and |
187
(d)to any person appointed by that Finance Party or by a person to whom paragraph (c)(i) or (c)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this paragraph (d) if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Company and the relevant Finance Party; and
(e) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information. |
36.3 |
Entire agreement |
This Clause 36 and Clause 24.7 (Security over Lenders’ rights) constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
36.4 |
Inside information |
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
36.5 |
Notification of disclosure |
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Company:
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (c)(v) of Clause 36.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons |
188
referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 36. |
36.6Continuing obligations
The obligations in this Clause 36 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of eighteen (18) months from the earlier of:
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and |
(b) |
the date on which such Finance Party otherwise ceases to be a Finance Party. |
37. |
CONFIDENTIALITY OF FUNDING RATES |
37.1Confidentiality and disclosure
(a) |
The Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c) below. |
(b) |
The Agent may disclose: |
(i) |
any Funding Rate to the relevant Borrower pursuant to Clause 10.6 (Notifications); and |
(ii) |
any Funding Rate to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender. |
(c) |
The Agent and each Obligor may disclose any Funding Rate, to: |
(i) |
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate is to |
189
be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or is otherwise bound by requirements of confidentiality in relation to it;
(ii) |
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; |
(iii) |
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and |
(iv) |
any person with the consent of the relevant Lender. |
37.2Related obligations
(a) |
The Agent and each Obligor acknowledge that each Funding Rate is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose. |
(b) |
The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender: |
(i) |
of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 37.1 (Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and |
190
(ii) |
upon becoming aware that any information has been disclosed in breach of this Clause 37. |
37.3No Event of Default
No Event of Default will occur under Clause 23.3 (Other obligations) by reason only of an Obligor’s failure to comply with this Clause 37.
38. |
BORROWING FOR OWN BENEFIT |
Each Borrower confirms that it is acting for its own account (für eigene Rechnung) and not for the account of an economic beneficiary (wirtschaftlich Berechtigter) within the meaning of Section 3 of the German Money Laundering Act (Gesetz über das Aufspüren von Gewinnen aus schweren Straftaten (Geldwäschegesetz (GwG)) or any other person. Each Borrower undertakes to notify the Agent without delay in writing, if after the date of this Agreement a situation arises in which contrary to the foregoing such Borrower acts, in respect of any Utilisation, for the account of another beneficial owner or any other person.
191
SECTION 12
GOVERNING LAW AND ENFORCEMENT
39. |
GOVERNING LAW |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by German law.
40. |
ENFORCEMENT |
40.1 |
Jurisdiction |
(a) |
The courts of Frankfurt am Main, Germany have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a Dispute). |
(b) |
The Parties agree that the courts of Frankfurt am Main, Germany are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary. |
(c) |
Notwithstanding paragraphs (a) and (b) above, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions. |
(d) |
Notwithstanding the foregoing, paragraph (c) above shall not apply in relation to any proceedings commenced by any Finance Party against any French Guarantor (including where the French Guarantor is a joint defendant with the Obligors) and any such proceedings shall be commenced in the German courts pursuant to paragraph (b) above. |
(e) |
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER FINANCE DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE |
192
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
40.2 |
Service of process |
(a) |
Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in Germany): |
(i) |
irrevocably appoints the Company (the Process Agent) as its agent for service of process in relation to any proceedings before the German courts in connection with any Finance Document; |
(ii) |
agrees that failure by a Process Agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned; and |
(iii) |
undertakes to deliver to the Process Agent without undue delay upon execution of this Agreement a process agent appointment letter (the Process Agent Appointment Letter) substantially in the form of Schedule 12 (Form of Process Agent Appointment Letter) and to send a copy of the executed Process Agent Appointment Letter to the Agent. |
(b) |
The Process Agent hereby acknowledges the appointment. The Process Agent shall ensure that documents to be served to an Obligor may validly be served by delivery to the Process Agent. In particular, the Process Agent shall notify the Agent of any change of address, accept any documents delivered to it on behalf of an Obligor and fulfil any requirements of section 171 of the German Code of Civil Procedure (Zivilprozessordnung), in particular present the original Process Agent Appointment Letter to any person effecting the service of process as required pursuant to section 171 sentence 2 of the German Code of Civil Procedure (Zivilprozessordnung). |
41. |
CONTRACTUAL RECOGNITION OF BAIL-IN |
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
193
(a) |
any Bail-In Action in relation to any such liability, including (without limitation): |
(i) |
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability; |
(ii) |
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and |
(iii) |
a cancellation of any such liability; and |
(b) |
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability. |
(c) |
In this Clause 41: |
Article 55 BRRD means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
Bail-In Action means the exercise of any Write-down and Conversion Powers.
Bail-In Legislation means:
(i) |
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; |
(ii) |
in relation to the United Kingdom, the UK Bail-In Legislation; and |
(iii) |
in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation. |
EEA Member Country means any member state of the European Union, Iceland, Liechtenstein and Norway.
EU Bail-In Legislation Schedule means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
194
Resolution Authority means any body which has authority to exercise any Write-down and Conversion Powers.
UK Bail-In Legislation means Part I of the United Kingdom Banking
Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
(d) |
Write-down and Conversion Powers means: |
(i) |
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; |
(ii) |
in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and |
(iii) |
in relation to any other applicable Bail-In Legislation: |
(A) |
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers |
195
under that Bail-In Legislation that are related to or ancillary to any of those powers; and
(B) |
any similar or analogous powers under that Bail-In Legislation. |
42. |
ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCS |
To the extent that the Finance Documents provide support, through a guarantee or otherwise, for any swap contract or any other agreement or instrument that is a QFC (such support, QFC Credit Support, and each such QFC, a Supported QFC), the Parties acknowledge and agree (subject and without prejudice to any mandatory principles of German law) as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the U.S. Special Resolution Regimes) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Finance Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) |
In the event a Covered Entity that is party to a Supported QFC (each, a Covered Party) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Finance Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Finance Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the Parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. |
196
(b) |
As used in this Clause 42, the following terms have the following meanings: |
BHC Act Affiliate of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
Covered Entity means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
Default Right has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
QFC has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
43. |
CONCLUSION OF THIS AGREEMENT (VERTRAGSSCHLUSS) |
(a) |
The Parties to this Agreement may choose to conclude this Agreement by an exchange of signed signature page(s), transmitted by any means of telecommunication (telekommunikative Übermittlung) such as by way of fax or electronic photocopy. |
(b) |
If the Parties to this Agreement choose to conclude this Agreement pursuant to Clause 43(a) above, they will transmit the signed signature page(s) of this Agreement to The Agreement will be considered concluded once one Recipient has actually received the signed signature page(s) (Zugang der Unterschriftsseite(n)) from all Parties to this Agreement (whether by way of fax, electronic photocopy or other means of telecommunication) and at the time of the receipt of the last outstanding signature page(s) by such one Recipient. |
(c) |
For the purposes of this Clause 43 only, the Parties to this Agreement appoint each Recipient as their attorney (Empfangsvertreter) and expressly allow (gestatten) each Recipient to collect the signed signature page(s) from all and for all Parties to this Agreement. For the avoidance of doubt, each Recipient will have no further duties connected with its position as Recipient. In particular, each Recipient may assume the conformity to the authentic original(s) of the signature page(s) |
197
transmitted to it by means of telecommunication, the genuineness of all signatures on the original signature page(s) and the signing authority of the signatories.
44. |
ITALIAN TRANSPARENCY PROVISIONS |
For the purposes of the transparency provisions set forth in the CICR Resolution of 4 March 2003, as amended from time to time, and in the “Disposizioni sulla trasparenza delle operazioni e dei servizi bancari e finanziari. Correttezza delle relazioni tra intermediari e clienti” issued by the Bank of Italy and as amended from time to time (the “Italian Transparency Rules”), each Party hereby acknowledges and confirms that:
(a) |
it has appointed and has been assisted by its respective legal counsel in connection with the negotiation, preparation and execution of this Agreement; and |
(b) |
this Agreement, and all of its terms and conditions, including the Recitals and Schedules thereto, have been specifically negotiated on an individual basis and, as a result, this Agreement falls into the category of the agreements “che costituiscono oggetto di trattativa individuale” between the Parties and are exempted from the application of Section II of the Italian Transparency Rules. |
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.
198
SCHEDULE 1
THE ORIGINAL LENDERS
Name of |
|
Commitment (EUR) |
|
|
|
COMMERZBANK |
|
40,000,000 |
AKTIENGESELLSCHAFT |
|
|
|
|
|
GOLDMAN SACHS LENDING PARTNERS LLC |
|
40,000,000 |
|
|
|
HSBC CONTINENTAL EUROPE S.A., GERMANY |
|
40,000,000 |
|
|
|
MORGAN STANLEY BANK AG |
|
40,000,000 |
|
|
|
UNICREDIT BANK GMBH |
|
40,000,000 |
|
|
|
BNP PARIBAS S.A. NIEDERLASSUNG DEUTSCHLAND |
|
25,000,000 |
|
|
|
LANDESBANK BADEN-WÜRTTEMBERG |
|
25,000,000 |
|
|
|
Total |
|
250,000,000 |
199
SIGNATURES
EVOTEC SE
as Company, Original Borrower and Original Guarantor
|
[Evotec SE RCF 2024 – Facility Agreement – Signature Page 1]
COMMERZBANK AKTIENGESELLSCHAFT
as Coordinating Bookrunner and Mandated Lead Arranger
|
[Evotec SE RCF 2024 – Facility Agreement – Signature Page 2]
GOLDMAN SACHS LENDING PARTNERS LLC
as Coordinating Bookrunner, Mandated Lead Arranger and Original Lender
|
[Evotec SE RCF 2024 – Facility Agreement – Signature Page 3]
HSBC CONTINENTAL EUROPE S.A., GERMANY
as Coordinating Bookrunner, Mandated Lead Arranger and Original Lender
|
[Evotec SE RCF 2024 – Facility Agreement – Signature Page 4]
MORGAN STANLEY BANK AG
as Coordinating Bookrunner, Mandated Lead Arranger and Original Lender
|
[Evotec SE RCF 2024 – Facility Agreement – Signature Page 5]
UNICREDIT BANK GMBH
as Coordinating Bookrunner, Mandated Lead Arranger and Original Lender
|
[Evotec SE RCF 2024 – Facility Agreement – Signature Page 6]
BNP PARIBAS S.A. NIEDERLASSUNG DEUTSCHLAND
as Mandated Lead Arranger and Original Lender
|
[Evotec SE RCF 2024 – Facility Agreement – Signature Page 7]
LANDESBANK BADEN-WURTTEMBERG
as Mandated Lead Arranger and Original Lender
|
[Evotec SE RCF 2024 – Facility Agreement – Signature Page 8]
HSBC CONTINENTAL EUROPE S.A., GERMANY
as Agent
|
[Evotec SE RCF 2024 – Facility Agreement – Signature Page 9]
COMMERZBANK AKTIENGESELLSCHAFT
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[Evotec SE RCF 2024 – Facility Agreement – Signature Page 10]
Exhibit 8.1
Subsidiaries of the Registrant | ||||
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Jurisdiction of |
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2023 Company |
Subsidiaries of Registrant |
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Incorporation |
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voting rights |
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(%) |
Aptuit Global LLC, Princeton, US |
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Delaware |
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100.00 |
Aptuit (Verona) SRL, Verona, Italy |
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Italy |
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100.00 |
Aptuit (Oxford) Ltd., Abingdon, UK |
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England |
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100.00 |
Aptuit (Potters Bar) Ltd., Abingdon, UK |
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England |
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100.00 |
Cyprotex Discovery Ltd., Manchester, UK |
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England |
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100.00 |
Cyprotex Ltd., Manchester, UK |
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England |
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100.00 |
Cyprotex US, LLC., Framingham, US |
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Delaware |
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100.00 |
Evotec Asia Pte. Ltd., Singapore |
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Singapore |
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100.00 |
Evotec (France) SAS, Toulouse, France |
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France |
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100.00 |
Evotec ID (Lyon) SAS, Lyon, France |
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France |
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100.00 |
Evotec DS Germany GmbH, Halle, Germany |
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Germany |
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100.00 |
Evotec (Hamburg) GmbH, Hamburg, Germany |
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Germany |
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100.00 |
Evotec GT GmbH, Orth, Austria |
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Austria |
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100.00 |
Evotec (India) Private Ltd., Thane, India* |
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India |
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100.00 |
Evotec International GmbH, Hamburg, Germany |
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Germany |
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100.00 |
Evotec (Modena) Srl, Medolla, Italy |
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Italy |
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100.00 |
Evotec (München) GmbH, München, Germany |
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Germany |
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100.00 |
Evotec (UK) Ltd., Abingdon, UK |
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England |
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100.00 |
Evotec (US) Inc., Princeton, NJ, US |
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Delaware |
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100.00 |
Just-Evotec Biologics, Inc., Seattle, US |
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Delaware |
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100.00 |
Just-Evotec Biologics EU, Toulouse, France |
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France |
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100.00 |
NephThera GmbH, Hamburg, Germany |
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Germany |
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100.00 |
* |
In voluntary liquidation. |
Exhibit 10.1
Evotec Group |
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Evotec Compensation Clawback Policy |
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Evotec Compensation Clawback Policy |
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Document: |
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Version No.2 |
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Table of Contents |
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Effective Date: |
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1. |
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December 1, 2023 |
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2. |
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3. |
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4. |
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Author: |
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Global Legal & Compliance |
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4.2 Recovery Amount |
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4.3 No Recovery Required for De Minimis Amounts or Impracticability |
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Reviewed By: |
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4.4 Subsequent Changes in a Covered Executive’s Employment Status |
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Human Resources, Finance, and |
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Governance |
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4.6 Notice |
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4.7 Inclusion |
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Approved/Owned By: |
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5. |
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Evotec SE Supervisory Board |
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6. |
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7. |
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Evotec SE (the “Company”) believes that it is in the best interests of the Company and its shareholders to create and maintain a culture that emphasizes integrity and accountability and that reinforces the Company’s pay-for-performance compensation philosophy. The Company’s Supervisory Board (the “Supervisory Board”) has therefore adopted this Evotec Compensation Clawback Policy (the “Policy”) which requires the recovery of certain forms of executive compensation in the case of accounting restatements resulting from a material error in the Company’s financial statements. This Policy is designed to comply with Section 10D of the U.S. Securities Exchange Act of 1934, as amended, the rules promulgated thereunder, and the listing standards of Nasdaq, the national securities exchange on which the Company’s securities are listed.
This Policy shall be administered by the Supervisory Board or, if so designated by the Supervisory Board, the Remuneration and Nomination Committee. The Management Board shall administer this Policy for the limited purpose of identifying other executive officers who may from time to time be deemed subject to this Policy.
This Policy applies to Incentive-Based Compensation that is approved, awarded, or granted to Covered Executives on or after October 2, 2023.
Covered Executives. Include (i) current and former members of the Management Board, (ii) the Head of Global Accounting, (iii) Head of Global Tax, (iv) Head of Global Controlling, (v) Head of Global Compensation & Benefits, (vi) General Counsel(, and such other executive officers who may from time
to time be deemed subject to this Policy by the Supervisory Board or the Management Board (each, a “Covered Executive”).1
Financial Reporting Measures. is: (i) any measure that is determined and presented in accordance with the accounting principles used in preparing financial statements, or any measure derived wholly or in part from such measure, such as revenues, EBITDA, or net income and (ii) stock price and total shareholder return. Financial Reporting Measures2 include, but are not limited to: revenues; net income; operating income; profitability of one or more reportable segments; financial ratios (e.g., accounts receivable turnover and inventory turnover rates); net assets or net asset value per share; earnings before interest, taxes, depreciation and amortization; funds from operations and adjusted funds from operations; liquidity measures (e.g., working capital, operating cash flow); return measures (e.g., return on invested capital, return on assets); earnings measures (e.g., earnings per share); revenue per user, or average revenue per user, where revenue is subject to an accounting restatement; cost per employee, where cost is subject to an accounting restatement; and tax basis income.
Incentive-Based Compensation. For purposes of this Policy, the term “Incentive-Based Compensation” means any compensation that is granted, earned, or vested based wholly or in part upon the attainment of a Financial Reporting Measure including, but not limited to: (i) non-equity incentive plan awards that are earned solely or in part by satisfying a Financial Reporting Measure performance goal; (ii) bonuses paid from a bonus pool, where the size of the pool is determined solely or in part by satisfying a Financial Reporting Measure performance goal; (iii) other cash awards based on satisfaction of a Financial Reporting Measure performance goal; (iv) restricted stock, restricted stock units, stock options, stock appreciation rights, and performance share units that are granted or vest solely or in part based on satisfaction of a Financial Reporting Measure performance goal; and (v) proceeds from the sale of shares acquired through an incentive plan that were granted or vested solely or in part based on satisfaction of a Financial Reporting Measure performance goal. For the avoidance of doubt, Incentive-Based Compensation does not include annual (i) salaries; (ii) bonuses paid solely based on satisfaction of subjective standards, such as demonstrating leadership, and/or completion of a specified employment period; (iii) non-equity incentive plan awards earned solely based on satisfaction of strategic or operational measures; and (iv) discretionary bonuses or other compensation that is not paid from a bonus pool that is determined by satisfying a Financial Reporting Measure performance goal.
This Policy applies to any Incentive-Based Compensation received by a Covered Executive serving as such during the performance period for such Incentive-Based Compensation.3
1 The definition of “executive officer” in Rule 10D-1 provides that: An executive officer is the issuer’s president, principal financial officer, principal accounting officer (or if there is no such accounting officer, the controller), any vice-president of the issuer in charge of a principal business unit, division, or function (such as sales, administration, or finance), any other officer who performs a policy-making function, or any other person who performs similar policy-making functions for the issuer. Executive officers of the issuer’s parent(s) or subsidiaries are deemed executive officers of the issuer if they perform such policy making functions for the issuer. Policy-making function is not intended to include policy-making functions that are not significant.
2 A financial reporting measure need not be presented within the financial statements or included in a filing with the SEC.
3 Recovery of compensation is not required (1) with respect to any compensation received while an individual was serving in a non-executive capacity prior to becoming an Executive Officer or (2) from any individual who is an Executive Officer on the date on which the Company is required to prepare an Accounting Restatement but who was not an Executive Officer at any time during the performance period for which the Incentive-Based Compensation is received.
EVOTEC – Compensation Clawback Policy |
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4.1Recovery Triggered by Accounting Restatement
In the event the Company is required to prepare an accounting restatement of its financial statements due to material noncompliance with any financial reporting requirement under the applicable U.S. securities law, including (i) any required accounting restatement to correct an error in previously issued financial statements that is material to the previously issued financial statements, or (ii) that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period (a “Restatement”), the Company shall, as promptly as it reasonably can, recover any Incentive-Based Compensation received by any Covered Executive that exceeds the amount of Incentive-Based Compensation that would have been received by the Covered Executive had it been determined based on the restated amounts.
The amount to be recovered will be the excess of the Incentive-Based Compensation paid to the Covered Executive (during three full fiscal years preceding the Restatement Date) based on the erroneous data in the original financial statements over the Incentive-Based Compensation that would have been paid to the Covered Executive had it been based on the restated results, without respect to any taxes paid.
The Restatement Date shall be the earlier of:
(i) |
the date the Company‘s Supervisory Board, or Management Board, or officer(s) authorized to take such action if Supervisory Board action is not required, concludes, or reasonably should have concluded, that the Company is required to prepare an accounting restatement due to the material noncompliance of the Company with any financial reporting requirement under applicable securities laws or, |
(ii) |
the date a court, regulator or other legally authorized body directs the Company to prepare an accounting restatement. |
For Incentive-Based Compensation based on stock price or total shareholder return, where the amount of erroneously awarded compensation is not subject to mathematical recalculation directly from the information in an accounting restatement the amount must be based on a reasonable estimate of the effect of the accounting restatement on the stock price or total shareholder return upon which the Incentive-Based Compensation was received. The Company must maintain documentation of the determination of that reasonable estimate and provide such documentation to the exchange or association.
4.3No Recovery Required for De Minimis Amounts or Impracticability
No recovery shall be required: (i) in the case of a Supervisory Board determination that the direct expense paid to a third party to assist in enforcing this Policy would exceed the amount to be recovered, (ii) recovery would violate home country law of the Company where that law was adopted prior to November 28, 20224, or (iii) recovery would likely cause an otherwise tax-qualified
4 Before concluding that it would be impracticable to recover any amount of erroneously awarded compensation based on violation of home country law, the Company must obtain an opinion of home country counsel acceptable to the applicable national securities exchange or association, that recovery would result in such a violation, and must provide such opinion to the exchange or association.
EVOTEC – Compensation Clawback Policy |
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retirement plan, under which benefits are broadly available to employees of the Company, to fail to meet the requirements of 26 U.S.C. 401(a)(13) or 26 U.S.C. 411(a) and regulations thereunder. Such determination shall be made after a reasonable and documented attempt to recover the Incentive-Based Compensation, which documentation shall be provided to Nasdaq.
4.4Subsequent Changes in a Covered Executive’s Employment Status
Subsequent changes in a Covered Executive’s employment status, including retirement or termination of employment, do not affect the Company’s rights to recover Incentive-Based Compensation pursuant to this Policy. For purposes of this Policy, Incentive-Based Compensation shall be deemed to have been received during the fiscal period in which the Financial Reporting Measure specified in the award is attained, even if such Incentive-Based Compensation is paid or granted after the end of such fiscal period.
4.5Authority and Method of Recoupment
The Supervisory Board shall determine the method of recouping any Incentive-Based
Compensation pursuant to this Policy. The method or methods for recouping5 any amount of the Incentive-Based Compensation in excess of what would have been awarded or vested after giving effect to the Restatement hereunder may include, without limitation:
| ● | requiring reimbursement of cash Incentive-Based Compensation previously paid; |
| ● | seeking recovery of any gain realized on the vesting, exercise, settlement, sale, transfer, or other disposition of any equity-based awards granted as Incentive-Based Compensation; |
| ● | offsetting any or all of the amount of the Incentive-Based Compensation in excess of what would have been awarded or vested after giving effect to the Restatement from any compensation otherwise owed by the Company to the Covered Executive6; |
| ● | cancelling outstanding vested or unvested equity awards; and/or |
| ● | taking any other remedial and recovery action permitted by law, as determined by the Compensation Committee. |
Before the Supervisory Board or Management Board determines to seek recovery pursuant to this Policy, it shall provide the Covered Executive with written notice and the opportunity to be heard at a meeting of the Supervisory Board or Management Board as the case may be (either in person or virtual/telephonic).
Before this Policy becomes effective upon executive officers other than those who are members of the Management Board, such as the Head of Global Accounting, Regional Heads of Finance, Directors of Company affiliates within the Evotec group and such other executive officers who may from time to time be deemed subject to this Policy by the Board, such executive officers must be notified in writing that they are deemed subject to this Policy as a Covered Executive.
5 The SEC rules permit companies to exercise discretion regarding the appropriate means of recovery as long as the excess incentive-based compensation is recovered reasonably promptly. Section 409A creates a complex and comprehensive set of rules governing the payment of nonqualified deferred compensation and imposes strict penalties on employees if a violation occurs (26 U.S.C. § 409A).
6 A company must consider Section 409A’s offset rules if it intends to offset recouped amounts against future payments of deferred compensation.
EVOTEC – Compensation Clawback Policy |
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The Company shall not indemnify any current or former Covered Executive against the loss of erroneously awarded compensation, and shall not pay, or reimburse any Covered Executives for premiums, for any insurance policy to fund such executive’s potential recovery obligations.
The Supervisory Board may amend this Policy from time to time in its discretion and shall amend this Policy as it deems necessary to reflect the regulations adopted by the SEC and to comply with any rules or standards adopted by Nasdaq or any other securities exchange on which the Company’s securities are
then listed. It is intended that this Policy be interpreted in a manner that is consistent with the requirements of Section 10D of the Exchange Act and any applicable rules or standards adopted by the SEC and any national securities exchange on which the Company’s securities are then listed.
The Supervisory Board intends that this Policy will be applied to the fullest extent of the law. The Compensation Committee may require that any employment or service agreement, cash-based bonus plan or program, equity award agreement, or similar agreement entered into on or after the adoption of this Policy shall, as a condition to the grant of any benefit thereunder, require a Covered Executive to agree to abide by the terms of this Policy. Any right of recoupment under this Policy is in addition to, and not in lieu of, any other remedies or rights of recoupment that may be available to the Company pursuant to the terms of any similar policy in any employment agreement, equity award agreement, cash-based bonus plan or program, or similar agreement and any other legal remedies available to the Company.
EVOTEC – Compensation Clawback Policy |
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Exhibit 12.1
CERTIFICATION OF THE PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO EXCHANGE ACT RULE 13A-14(A) OR 15D-14(A) AS ADOPTED
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Dr. Christian Wojczewski, certify that:
| 1. | I have reviewed this annual report on Form 20-F of Evotec SE; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report; |
| 4. | The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have: |
| (a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| (b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| (c) | Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| (d) | Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; |
| 5. | The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions): |
| (a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and |
| (b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting. |
Date: August 12, 2024
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/s/ Dr. Christian Wojczewski |
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Name: |
Dr. Christian Wojczewski |
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Title: |
Chief Executive Officer |
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Exhibit 12.2
CERTIFICATION OF THE PRINCIPAL FINANCIAL OFFICER
PURSUANT TO EXCHANGE ACT RULE 13A-14(A) OR 15D-14(A) AS ADOPTED
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Laetitia Rouxel, certify that:
| 1. | I have reviewed this annual report on Form 20-F of Evotec SE; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report; |
| 4. | The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have: |
| (a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| (b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| (c) | Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| (d) | Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; |
| 5. | The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions): |
| (a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and |
| (b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting. |
Date: August 12, 2024
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/s/ Laetitia Rouxel |
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Name: |
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Laetitia Rouxel |
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Title: |
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Chief Financial Officer |
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Exhibit 13.1
Certification by the Principal Executive Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Annual Report of Evotec SE (the “Company”) on Form 20-F for the fiscal year ended December 31, 2023 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Dr. Christian Wojczewski, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
| (1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
| (2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
Date: August 12, 2024
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/s/ Dr. Christian Wojczewski |
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Name: |
Dr. Christian Wojczewski |
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Title: |
Chief Executive Officer |
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Exhibit 13.2
Certification by the Principal Financial Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Annual Report of Evotec SE (the “Company”) on Form 20-F for the fiscal year ended December 31, 2023 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Laetitia Rouxel, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
| (1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
| (2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
Date: August 12, 2024
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/s/ Laetitia Rouxel |
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Name: |
Laetitia Rouxel |
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Title: |
Chief Financial Officer |
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Exhibit 15.1
Consent of Independent Registered Public Accounting Firm
Evotec SE
Hamburg, Germany
We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (No. 333-260920 and No. 333-272285) of Evotec SE of our reports dated August 12, 2024, relating to the consolidated financial statements, and the effectiveness of Evotec SE’s internal control over financial reporting, which appear in this Annual Report on Form 20-F. Our report on the effectiveness of internal control over financial reporting expresses an adverse opinion on the effectiveness of the Company’s internal control over financial reporting as of December 31, 2023.
/s/ BDO AG Wirtschaftsprüfungsgesellschaft
Berlin, Germany
August 12, 2024
