Full Press Release Details
| Article 1 | ||
| DEFINITIONS | ||
| Section 1.01 | Definitions | 2 |
| Section 1.02 | Other Definitional and Interpretative Provisions | 22 |
| Article 2 | ||
| THE OFFER | ||
| Section 2.01 | The Offer | 22 |
| Section 2.02 | Company Action | 27 |
| Section 2.03 | Equity Awards | 28 |
| Section 2.04 | Extraordinary General Meeting | 29 |
| Section 2.05 | Directors | 32 |
| Section 2.06 | Further Actions | 34 |
| Section 2.07 | Post-Offer Reorganization | 34 |
| Section 2.08 | Exchange of Company Shares. | 36 |
| Section 2.09 | Adjustments | 39 |
| Section 2.10 | Withholding | 39 |
| Section 2.11 | Transfer Taxes | 40 |
| Article 3 | ||
| REPRESENTATIONS AND WARRANTIES OF THE COMPANY | ||
| Section 3.01 | Corporate Existence and Power | 40 |
| Section 3.02 | Corporate Authorization | 40 |
| Section 3.03 | Governmental Authorization | 41 |
| Section 3.04 | Non-contravention | 41 |
| Section 3.05 | Capitalization | 42 |
| Section 3.06 | Subsidiaries | 44 |
| Section 3.07 | SEC Filings | 45 |
| Section 3.08 | Financial Statements | 46 |
| Section 3.09 | Internal Controls | 46 |
| Section 3.10 | Disclosure Documents | 47 |
| Section 3.11 | Absence of Certain Changes | 48 |
| Section 3.12 | No Undisclosed Liabilities | 48 |
| Section 3.13 | Compliance with Laws; Regulatory Matters; Healthcare Laws; Subsidies | 49 |
| Section 3.14 | Litigation | 51 |
| Section 3.15 | Properties | 52 |
| Section 3.16 | Intellectual Property; Privacy and Data Protection | 53 |
| Section 3.17 | Taxes | 59 |
| Section 3.18 | Tax Free Reorganization Matters | 61 |
| Section 3.19 | Employee Benefit Plans | 61 |
| Section 3.20 | Employee and Labor Matters | 63 |
| Section 3.21 | Environmental Matters | 66 |
| Section 3.22 | Material Contracts | 67 |
| Section 3.23 | Financial Advisor Fees | 70 |
| Section 3.24 | Opinion of Company Financial Advisor | 70 |
| Section 3.25 | Insurance | 70 |
| Section 3.26 | Anti-Takeover Measures | 71 |
| Section 3.27 | Information Supplied | 71 |
| Section 3.28 | Related Party Transactions | 71 |
| Section 3.29 | Rule 14d-10 Matters | 71 |
| Section 3.30 | No Other Representations and Warranties | 72 |
| Article 4 | ||
| REPRESENTATIONS AND WARRANTIES OF BUYER | ||
| Section 4.01 | Corporate Existence and Power | 73 |
| Section 4.02 | Corporate Authorization | 73 |
| Section 4.03 | Governmental Authorization | 73 |
| Section 4.04 | Non-Contravention | 73 |
| Section 4.05 | Capitalization | 74 |
| Section 4.06 | SEC Filings | 74 |
| Section 4.07 | Financial Statements | 75 |
| Section 4.08 | Internal Controls | 76 |
| Section 4.09 | Disclosure Documents | 76 |
| Section 4.10 | Absence of Certain Changes | 77 |
| Section 4.11 | No Undisclosed Liabilities | 77 |
| Section 4.12 | Litigation | 78 |
| Section 4.13 | Ownership of Company Shares; Investment | 78 |
| Section 4.14 | Tax-Free Reorganization Matters. | 78 |
| Section 4.15 | Absence of Certain Agreements | 78 |
| Section 4.16 | No Other Representations and Warranties | 79 |
| Article 5 | ||
| COVENANTS OF THE COMPANY | ||
| Section 5.01 | Conduct of the Company | 79 |
| Section 5.02 | Access to Information | 84 |
| Section 5.03 | No Solicitation; Adverse Recommendation Change | 85 |
| Section 5.04 | Compensation Arrangements | 89 |
| Section 5.05 | Delisting; Deregistration | 90 |
| Section 5.06 | Anti-Takeover Measures | 90 |
| Section 5.07 | Internal Controls Remediation Actions | 90 |
| Section 5.08 | Tax Matters | 90 |
| Article 6 | ||
| COVENANTS OF BUYER | ||
| Section 6.01 | Director and Officer Liability | 91 |
| Section 6.02 | Employee Matters | 92 |
| Section 6.03 | Stock Exchange Listing | 94 |
| Section 6.04 | Conduct of Buyer | 94 |
| Section 6.05 | Tax Matters | 95 |
| Article 7 | ||
| COVENANTS OF THE PARTIES | ||
| Section 7.01 | Regulatory Approvals; Efforts | 95 |
| Section 7.02 | Certain Filings | 98 |
| Section 7.03 | Further Assurances | 98 |
| Section 7.04 | Public Announcements | 98 |
| Section 7.05 | Notices of Certain Events | 99 |
| Section 7.06 | Litigation | 100 |
| Section 7.07 | Business Continuity | 100 |
| Section 7.08 | Tax Free Reorganization Matters | 100 |
| Article 8 | ||
| TERMINATION | ||
| Section 8.01 | Termination | 101 |
| Section 8.02 | Effect of Termination | 103 |
| Section 8.03 | Expenses; Termination Compensation | 104 |
| Section 8.04 | Buyer Termination Compensation | 104 |
| Article 9 | ||
| MISCELLANEOUS | ||
| Section 9.01 | Notices | 106 |
| Section 9.02 | Non-Survival of Representations and Warranties; Survival of Certain Covenants and Agreements | 108 |
| Section 9.03 | Amendments and Waivers | 108 |
| Section 9.04 | Rules of Construction | 108 |
| Section 9.05 | Assignment | 108 |
| Section 9.06 | Governing Law | 109 |
| Section 9.07 | Dispute Resolution | 109 |
| Section 9.08 | Counterparts; Electronic Delivery; Effectiveness | 110 |
| Section 9.09 | Entire Agreement; No Third-Party Beneficiaries | 111 |
| Section 9.10 | Severability | 111 |
| Section 9.11 | Specific Performance | 111 |
- Form of Legal Downstream Merger Deed
B-1 and B-2 - Form of Legal Downstream Merger Proposal and Notes
- Form of Post-Downstream Merger Share Sale Agreement
PURCHASE AGREEMENT (this "Agreement") dated as of June 12, 2025, by and between BioNTech SE, a European
stock corporation (Societas Europaea) organized under the Laws of Germany and the European Union registered with the commercial
register at the district court of Mainz under HRB 48720 ("Buyer"), and CureVac N.V., a public limited liability
company (naamloze vennootschap) organized under the Laws of The Netherlands, having its registered office (statutaire zetel)
in Amsterdam, The Netherlands, registered with the Dutch trade registered under number 77798031 (the "Company").
W I T N E S S E T H:
WHEREAS, Buyer desires to acquire the Company on
the terms and subject to the conditions set forth in this Agreement;
the management board of the Company (the "Management Board") and the supervisory board of the Company (the "Supervisory
Board" and together with the Management Board, the "Company Boards") have (i) determined that, on the
terms and subject to the conditions set forth in this Agreement, this Agreement and the Signing Transactions, are in the best interest
of the Company and the sustainable success of its business, having considered the interest of its shareholders, employees and other relevant
stakeholders, (ii) approved the terms and conditions of this Agreement and the Signing Transactions and the execution, delivery and
performance of the Company's obligations under this Agreement and (iii) unanimously resolved, on the terms and subject to the
conditions set forth in this Agreement, to support the Offer, to recommend acceptance of the Offer by the shareholders of the Company
and to recommend approval and adoption of the resolutions set forth in Section 2.04(a);
WHEREAS, the management board and the supervisory
board of Buyer have each unanimously determined that, on the terms and subject to the conditions set forth in this Agreement, this Agreement
and the Transactions are in the best interests of Buyer and all of its stakeholders and have approved the execution, delivery and performance
of this Agreement and the consummation of the Transactions;
Buyer shall commence an exchange offer (as it may be amended from time to time as permitted by this Agreement, the "Offer")
to purchase any (subject to the Minimum Condition) and all of the ordinary shares, par value 0.12 per share, of the Company (collectively,
the "Company Shares") for the consideration and upon the terms and subject to the conditions set forth herein;
concurrently with the execution and delivery of this Agreement, and as a condition of and inducement to Buyer's willingness to enter
into this Agreement, certain shareholders of the Company are executing and delivering tender and support agreements to the Buyer pursuant
to which those shareholders, among other things, agree with the Buyer to tender all Company Shares beneficially owned by them or their
controlled Affiliates to Buyer in response to the Offer (together with any similar agreements that may be signed after the date of this
Agreement, the "Tender and Support Agreements");
WHEREAS, each of the parties intends that, for
U.S. federal income tax purposes, the Offer, taken together with the Legal Downstream Merger, the Post-Downstream Merger Share Sale, the
Cancellation, and the New Topco U.S. Tax Election, will qualify as one or more "reorganizations" within the meaning of Section 368(a) of
the Code and the Treasury Regulations, and this Agreement is intended to constitute a "plan of reorganization" within the
meaning of Section 368 of the Code and the Treasury Regulations; and
WHEREAS, Buyer and the Company desire to make certain
representations, warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the foregoing
and the representations, warranties, covenants and agreements contained in this Agreement, the Parties agree as follows:
Section 1.01 Definitions.
As used in this Agreement, the following terms have the following meanings:
"1933 Act" means the United
States Securities Act of 1933, as amended.
"1934 Act" means the United
States Securities Exchange Act of 1934, as amended.
"Acceptable Confidentiality Agreement"
shall have the meaning set forth in Section 5.03(b)(i).
"Acceptance Time" shall have
the meaning set forth in Section 2.01(b).
"Action" means any litigation,
action, claim, complaint, investigation, suit, hearing, arbitration, mediation, interference, cancellation, opposition, reexamination
or other proceeding (public or private) by or before, or otherwise involving, any Governmental Authority.
"Adverse Recommendation Change"
shall have the meaning set forth in Section 5.03(d)(i).
"Affiliate" means, with respect
to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person. For purposes
of this definition, the term "control" (including the correlative terms "controlling," "controlled by"
and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
"Affiliate Agreement" shall
have the meaning set forth in Section 3.28.
"Aggregate Withholding Amount"
shall have the meaning set forth in Section 2.08(i).
"Agreement" shall have the meaning
set forth in the Preamble.
"Alternative Acquisition Agreement"
shall have the meaning set forth in Section 5.03(d).
Acquisition Proposal" means any inquiry, proposal, indication of interest or offer from any Person or group of Persons (or the
shareholders of any Person) other than Buyer and its Subsidiaries and Affiliates (such Person or group (or such shareholders), a "Company
Third Party") relating to, or that would reasonably be expected to lead to: (i) a transaction or series of transactions
pursuant to which any Company Third Party acquires or would acquire, directly or indirectly, beneficial ownership (as defined in Rule 13d-3
under the 1934 Act) of more than twenty percent (20%) of the outstanding Company Shares or other equity securities of the Company (or
options, rights or warrants to purchase, or securities convertible into or exchangeable for, such securities) representing more than twenty
percent (20%) of the voting power of the Company, including pursuant to a stock purchase, merger, consolidation, tender offer, share exchange
or other transaction involving the Company or any of its Subsidiaries; (ii) any transaction or series of transactions pursuant to
which any Company Third Party acquires or would acquire, directly or indirectly, control of assets (including for this purpose the outstanding
equity securities of Subsidiaries of the Company and any entity surviving any merger or combination including any of them) of the Company
or its Subsidiaries representing more than twenty percent (20%) of the revenues, net income or assets (in each case, on a consolidated
basis) of the Company and its Subsidiaries, taken as a whole; or (iii) any disposition of assets representing more than twenty percent
(20%) of the revenues, net income or assets (in each case, on a consolidated basis) of the Company and its Subsidiaries, taken as a whole.
"Anti-Corruption Laws" means
any applicable Law relating to corruption, bribery, ethical business conduct, fraud, money laundering, political contributions, gifts
and gratuities, or improper payments, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977, as amended, U.K. Bribery
Act 2010, and Laws implementing the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
"Anti-Takeover Measure" shall
have the meaning set forth in Section 3.26.
"Antitrust Investigation" shall
have the meaning set forth in Section 7.01(d).
"Antitrust Laws" means the HSR
Act, the Sherman Act, the Clayton Act, the Federal Trade Commission Act and any other applicable Laws relating to antitrust or competition
regulation that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint
of trade or lessening competition through merger or acquisition.
"BaFin" means the German Federal
Financial Supervisory Authority (Bundesanstalt f r. Finanzdienstleistungsaufsicht).
"Business Day" means a day,