**Exhibit 4.9**

**Transaction Agreement**

 

dated as of December 1, 2005

 

by and between

 

Crucell N.V.Archimedesweg 4P.O. Box 2048NL - 2301 CA LeidenThe Netherlands

(hereinafter **Crucell**)

and

Berna Biotech AGRehhagstrasse 79CH - 3018 BerneSwitzerland

(hereinafter **Berna**)

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** **

**Table ofContents**
| 1.     | Definitions                                                     | 5      |
|--------|-----------------------------------------------------------------|--------|
|   |                                                            |   |
| 2.     | Public Offer                                                    | 5      |
|   |                                                            |   |
| 3.     | Support of the Public Offer by Berna                            | 7      |
|   |                                                            |   |
| 4.     | Extraordinary Meetings of Berna Shareholders                    | 10     |
|   |                                                            |   |
| 5.     | Certain Representations and Obligations of the  Parties         | 12     |
|   |                                                            |   |
| 6.     | ESOP Options and ESPP Shares                                    | 17     |
|   |                                                            |   |
| 7.     | Press Releases and Other Public Announcements;  Confidentiality | 18     |
|   |                                                            |   |
| 8.     | Costs and Expenses                                              | 19     |
|   |                                                            |   |
| 9.     | Termination                                                     | 19     |
|   |                                                            |   |
| 10.    | Governing Law and Arbitration                                   | 21     |

 

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** **

**Table of Annexes**
| A      | ESOP Options and ESPP Shares                      |
|--------|---------------------------------------------------|
|   |                                              |
| B      | Crucell’s Employee Stock Options             |
|   |                                              |
| C      | Minutes of Meeting of Berna Board                 |
|   |                                              |
| 1      | Definitions                                       |
|   |                                              |
| 2.3    | Draft Pre-Announcement of Public Offer            |
|   |                                              |
| 3.1    | Press Release                                     |
|   |                                              |
| 3.2    | Berna Board Report                                |
|   |                                              |
| 3.11   | Undertakings of Berna Board Members               |
|   |                                              |
| 4.1    | Invitation to Berna Shareholders’ Meeting    |
|   |                                              |
| 4.6    | Resignation Declarations of certain Board Members |
|   |                                              |
| 5.1.7  | Chart of Berna Group                              |
|   |                                              |
| 5.1.9  | Fairness Opinion                                  |

 

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This TransactionAgreement (including all of its annexes the **Agreement**)is made with effect as of December 1, 2005, by and between Berna BiotechAG, Berne, Switzerland (**Berna**) and CrucellN.V., Leiden, The Netherlands (**Crucell**).

**Whereas:**

A.                         Bernais a Swiss corporation (*Aktiengesellschaft*)limited by shares registered in Berne, Switzerland, with an issued sharecapital of CHF 15,041,495.20 divided into 37,603,738 registered shareswith a par value of CHF 0.40 each (the **BernaShares**), which are listed on the SWX Swiss Exchange. In addition,Berna has a conditional share capital allowing for the issuance of 1,146,262additional shares in connection with its employee stock option plan (*Mitarbeiter-Optionsplan*;**last version March 31,2004) (**ESOP**) and its employee shareparticipation plan (*Mitarbeiter-Aktienplan*;last version April 30, 2003) (**ESPP**). 31,301of the issued Berna Shares are locked-up under Berna’s ESPP as further setforth in Annex A. Berna has a total of 1,421,325 options for BernaShares outstanding under its employee stock option plan, as further set forthin Annex A, that, upon exercise, would result in the issuance of anadditional 1,146,262 Berna Shares and the purchase of 275,063 Berna Shares onthe market. Berna has no other shares, options or conversion rights issued oroutstanding or promised or owed now or for the future to employees or otherwise.

B.                           Crucellis a Dutch corporation, having its corporate seat in Leiden, The Netherlands,with an authorized share capital of EUR 40,800,000 divided into 85,000,000ordinary shares (the **Crucell Shares**)and 85,000,000 preference shares of EUR 0.24 each; the issued sharecapital amounts to EUR 9,940,947.12 divided into 41,420,613 CrucellShares. The Crucell Shares are listed on Euronext Amsterdam N.V.’s Eurolist byEuronext and quoted on NASDAQ in the form of American Depository Shares (ADSs),both under the symbol “CRXL”. Crucell maintains an employee stock option plan.Crucell has a total of options for Crucell Shares outstanding under itsemployee stock option plan as further set forth in Annex B, that,upon exercise, would result in the issuance of additional Crucell Shares.Crucell has no other shares, options or conversion rights issued or outstanding.

C.                           Themanagement board of Crucell with the approval of the Crucell Supervisory Boardhas resolved to pre-announce and, subject to the terms and conditions of thisAgreement, to submit a public tender offer to all shareholders of Berna, andBerna desires to support such public tender offer and

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to publish in connection with such offer a Berna Boardreport recommending to the Berna shareholders to accept such offer; and theBerna Board has, as set out in Annex C, at its meeting of November 30,2005, unanimously, with one abstention, resolved to recommend and support thePublic Offer as defined in this Agreement and to publish such board report togetherwith the Public Offer.

**Now, therefore,** the partieshereto agree as follows:

# **1.             Definitions**

Capitalized termsused in this Agreement shall have the meaning assigned to them in Annex 1.

# **2.             Public Offer**

## 2.1                                 Subjectto the terms and conditions of this Agreement, Crucell shall launch a publictender offer to Berna’s shareholders for all Berna Shares consistent with Swisstakeover laws and regulations (the **PublicOffer**). Subject to prior consultation with Berna, Crucell mayexclude any Berna shareholders and|or Berna Shares that are located injurisdictions, where such offer or its acceptance would (i) be illegal or (ii) requirethe observance of takeover and other securities laws and regulations other thanSwiss takeover and securities laws and regulations or (iii) requirefilings with or approvals by takeover authorities other than the Swiss takeoverauthorities. In particular, Crucell contemplates to exclude any persons in theUnited States and retail shareholders in the U.K. from the Public Offer. ThePublic Offer shall be subject to conditions agreed upon by the parties as setout in Annex 2.3.

## 2.2                                 Inthe Public Offer, Crucell shall offer 0.447 Crucell Shares (the **Crucell Exchange Shares**) with par value ofEUR 0.24 each to be newly issued to the holders of Berna Shares (**Crucell Exchange Share Offering**) for eachBerna Share (**Exchange Ratio**).Crucell shall be entitled, in its own discretion, to adjust the Exchange Ratiofor the gross amount of any dilutive effects, including but not limited todividend payments, demergers, capital increases with an issuance price pershare below the stock market price, issuance of options with a strike price pershare below the stock market price, and repayments of capital. The ExchangeRatio will not be adjusted for the dilutive effect occurring as a result of theissue of up to 893,000 Berna Shares upon exercise of the option rights granted tomembers of the Berna management and employees under the ESOP, which are in themoney as per their current terms and conditions.

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## 2.3                                 Crucellshall pre-announce the Public Offer on December 1, 2005, in electronicmedia by means of a pre-announcement in German and French, substantially withthe content of the English draft attached hereto as Annex 2.3 (**Pre-Announcement**), which shall be followedby a publication in newspapers in due course in accordance with Swiss takeoverlaw. Save with respect to matters that are immaterial, Crucell shall consultwith Berna and|or its advisors with respect to any changes that it may intendto make to the content of the draft Pre-Announcement attached hereto as Annex 2.3.

The parties currently contemplate that Crucell publish, on or about December 15,2005, after receiving acceptable ruling of the Swiss takeover board on the compliancewith Swiss takeover laws, reasonably acceptable to Crucell, the Public Offerprospectus in German and in Frenchin accordance with Swiss takeover law. The Public Offer will remain open for atleast twenty trading days.

## 2.4                                 Crucellshall make all notifications and filings and take all other actions ascommercially reasonable to procure the fulfilment of the conditions to thePublic Offer set out in Section (b) (*mergercontrol and other approvals*), (j) (*approval of the Crucell shareholders’ meeting*), and (k) (*admission to listing*) of Annex 2.3as expeditiously as commercially reasonably possible.

In particular, with regard to Section (j) of Annex 2.3(*approval of the Crucell shareholders’ meeting*),concurrent with the publication of the Public Offer prospectus, Crucell shall inviteits shareholders to an extraordinary meeting and re­commend the approval of thePublic Offer. Such extraordinary meeting of the Crucell shareholders isexpected to take place on or about 18 days after the launch of the PublicOffer, taking, however, into account the holiday season (currently contemplatedon January 10, 2006). Members of the Berna Board and management as well asBerna’s advisers will be invited to attend the extraordinary meeting(s) ofthe Crucell shareholders. Crucell shall procure that Berna and its advisors aregiven due opportunity to review, and comment on, the invitation to the meetingof the Crucell shareholders and the resolutions submitted for shareholders’approval, and consult with Berna on all other relevant matters in connectionwith the meeting of the Crucell shareholders.

## 2.5                                 Itis the parties’ intention that,following the settlement of the Public Offer, the Crucell Supervisory Board shall be composed of a maximum of9 directors, including the 3 directors designated by Berna. Therefore, Crucell shall schedule and recommend inthe invitation to the extraordinary meeting of the shareholders the election ofthe following three persons to the Crucell Supervisory Board sub-

 

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## ject to the Public Offer being settled. Currently, it iscontemplated that these are: Claude Thomann, Dominik Koechlin and Jürg Witmer.

## 2.6                                 Theparties confirm that subject to the Public Offer being settled, new employmentagreements shall be offered to Kuno Sommer, Rolf Gasser, Simon Rothen, Jörg vonManger-König and Patrik Richard if they so desire, the terms and conditions ofwhich shall be equivalent to the current terms and conditions (or better ifagreed by Berna and Crucell).

## 2.7                                 Crucellshall in accordance with the relevant laws and regulations apply for thelisting of the Crucell Exchange Shares on Eurolist by Euronext Amsterdam for afirst trading date by or shortly after the settlement of the Public Offer. Inaddition, Crucell shall apply for a secondary listing of the Crucell ExchangeShares and of all existing Crucell Shares of the same share category on the SWXSwiss Exchange for a first trading date as soon as commercially reasonablypossible after the settlement of the Public Offer. Following the settlement,upon request by Crucell, Berna shall apply for the de-listing of the BernaShares.

## 2.8                                 Crucellcurrently contemplates that, following the settlement of the Public Offer,depending on the acceptance rate, any remaining minority shareholders of Bernashall be excluded and indemnified by any legal means available, including asqueeze-out to be effected in accordance with Swiss takeover laws or Swissmerger laws (as the case may be) or by way of a follow-up private or publicoffer.

## 2.9                                 Regardlesssection “Conditions” para 3 of the Pre-Announcement (Annex 2.3),Crucell hereby agrees that without Berna’s written approval it shall under nocircumstances waive condition (a) of section “Conditions” para 1of the Pre-Announcement set out in Annex 2.3 (*at least 67% of the total number of shares tendered*),unless the number of shares tendered represent (together with shares thatCrucell may otherwise hold) at least 50.1% of the total number of Berna Sharesissued.

# **3.             Support of the Public Offer by Berna**

## 3.1                                 Onthe date of the electronic publication of the Pre-Announcement, Berna andCrucell shall publish a joint press release announcing the endorsement of thePublic Offer by Berna and that Berna will recommend that the shareholders acceptthe Public Offer, substantially as set forth in Annex 3.1.

## 3.2                                 TheBerna Board shall issue a report to all shareholders of Berna in accordancewith Article 29(1) SESTA substantially in the form of the draftattached hereto as 

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## Annex 3.2,welcoming and endorsing the Public Offer and recommending that the Bernashareholders accept the Public Offer. Bernashall issue the final report as early as reasonably necessary for Crucell toinclude such report in its filings to the Swiss takeover board and to publishsuch report together with the prospectus of the Public Offer.

## 3.3                                 Bernaand the Berna Board shall actively and publicly support the Public Offer,including, without limitation, at the extraordinary meeting of the Bernasharehol­ders, and refrain from any acts, filings or public statements thatcould adversely affect the Public Offer or its success. Berna shall include theprospectus of the Public Offer and any other reasonable information on thePublic Offer prepared by Crucell in its mailings to the Berna shareholders.

## 3.4                                 Savewhere the communication is immaterial, Berna agrees to consult Crucellsufficiently in advance of any communication (whether written or oral, andwhether consultants or advisors), which it proposes to make or submit to theSwiss takeover board in connection with the Public Offer. Berna undertakes totake any reasonable comments, which Crucell or its consultants and advisors maymake in relation to any communication in good faith into account prior tomaking such communication. Crucell shall endeavour to consult with Berna or itslegal advisors prior to any material written filing to the Swiss takeover boardand take any reasonable comments in good faith into account prior to suchfiling. The parties will inform each other on any material development in theproceedings with the Swiss takeover board and provide each other with copies oftheir written filings. The parties shall endeavour to resolve any disagreementson the propo­sals submitted to the takeover board among themselves in order toavoid conflicting communication with the takeover board.

## 3.5                                 Bernaand the Berna Board shall not, directly or indirectly:

### 3.5.1                        supportany offer submitted by another party for Berna Shares or securities;

### 3.5.2                        enter intoany letter of intent, agreement in principle, acquisition agreement or othersimilar acquisition agreement relating to any acquisition proposal nor solicit,initiate or encourage any inquiries or proposals from or discuss with, ornegotiate any offer or proposal from any third party relating to a potentialacquisition in whole or in part of the Berna Group, its shares, assets orbusiness, whether directly or indirectly, through a public offer, purchase ofshares or assets, merger, consolidation, or otherwise.

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## 3.6                                 Inthe event that Berna becomes aware that a third party has the firm intention ofpreparing or pursuing an action or transaction that may conflict or competewith or adversely affect the Public Offer or Crucell’s interest therein, itshall promptly inform Crucell of the fact of the approach as well as any priceand conditions indicated.

## 3.7                                 NotwithstandingArticle 3.5.2, the Berna Board will be allowed to receive and to reviewany unsolicited indication of firm interest of a third party (including to cla­rifyuncertain issues), be it orally or in writing. The Berna Board will be allowedto provide to a third party that expressed in writing an unsolicited firmintention to announce a Superior Offer specifying the main terms and conditionsof such Superior Offer due diligence information if and after, cumulatively,

### 3.7.1                        Crucellhas been informed on the main terms and conditions of such contemplatedSuperior Offer and has had the chance to reasonably present its view to Bernaon such terms and conditions; and

### 3.7.2                        the BernaBoard believes in good faith, after having consulted with its advisors andafter having given Crucell the opportunity to present its view, that (a) theBerna Board has an obligation to grant such due diligence access underArt. 717 Swiss Code of Obligations or under Swiss takeover laws and that (b) suchthird party has the capability and the intention of making and consummating aSuperior Offer.

### Berna shall inform Crucell if it shoulddecide to provide such due diligence access.

## 3.8                                 Bernashall make all notifications and filings and take all actions which may benecessary to procure or support the fulfilment of the conditions to the PublicOffer set out in Sections (b) (*mergercontrol and other approvals*), (d) (*changes ofBerna’s articles of incorporation**removing theprovisions restricting the transfe­rability of the Berna Shares*), (e) (*theamendments of the articles of incorporation have been entered into thecommercial register*), (f) (*registration with votingrights*), (i) (*election of board members*)of Annex 2.3 as expeditiously as practicable and to use itscommercially reasonable endeavours to procure and support the fulfilment ofthese conditions. Berna shall keep Crucell informed on the progress of thefulfilment of these conditions and promptly upon fulfilment deliver to Crucellappropriate evidence, such as amended articles of incorporation, excerpts ofthe commercial register, and minutes of the extraordinary meeting(s) ofthe Berna shareholders.

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## 3.9                                 Onor by the day on which the conditions set out in Section (d) of Annex 2.3(*changes of Berna’s articles ofincorporation removing the provisions restricting the transferability of theBerna Shares*) are satisfied, the Berna Board shall resolve toregister Crucell as a shareholder with voting rights with respect to all BernaShares that Crucell or any of its Subsidiaries may acquire as a result of thePublic Offer or otherwise. Upon settlement of the Public Offer, the Berna Boardshall promptly register Crucell and its Subsidiaries in Berna’s shareholderregister as shareholders with voting rights with respect to all Berna Sharesthat Crucell or its Subsidiaries have acquired as a result of the Public Offeror otherwise.

## 3.10                           On thefirst trading day following the end of the Offer Period, the chairman and theCEO of Berna shall deliver to Crucell a certificate dated that day confirmingin writing, to the best of their knowledge, the satisfaction of the conditionsto the Public Offer set out in Sections (b) (*merger control and other approvals*), (c) (*no court or other decision*) and (g) (*no material adverse effect*) of Annex 2.3.

## 3.11                           Bernashall use commercially reasonable efforts to procure the tender of the BernaShares by the Berna shareholders. In particular, without limitation, it shall

### 3.11.1                  support andassist in the preparation and procure the participation of the relevant membersof its board of directors and management in road shows, marketing events andmarketing materials;

### 3.11.2                  directly liaisewith OrbiMed Advisors in order to convince them to tender the Berna Sharesrepresented by them (or to privately sell their share if held in the US or byUS persons);

### 3.11.3                  encourage theretail shareholder base in Switzerland as well as its employees to tender theirBerna Shares.

Attached as Annex 3.11 are the undertakings of members ofBerna’s board of directors that - except in case of a Superior Offer - theywill tender the Berna Shares directly owned or controlled by them in the PublicOffer. For the indirectly owned or controlled Berna Shares, Berna’s boardmembers will undertake their best efforts to have them tendered.

# **4.             Extraordinary Meetings of Berna Shareholders**

## 4.1                                 Bernashall invite its shareholders no later than on the date of the launch of thePublic Offer to an extraordinary meeting of the Berna shareholders and schedule

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## and recommendas set forth below and in the invitation of the Berna Board to theextraordinary meeting of the shareholder attached hereto as Annex 4.1the following items (or any other items or proposals as may be reasonablyrequested by Crucell in order to promote and support a successful Public Offer):

### —                                   anamendment of the articles of incorporation so as to remove the provisionsrestricting the transferability with voting rights of the Berna Shares, whichamendment shall not have to be entered into the commercial register, unlessCrucell shall, after the lapse of the Offer Period have declared the PublicOffer successful except for conditions that are or become conditionssubsequent, and

### —                                   theelection of three board members designated by Crucell, subject only to thecondition that the Public Offer shall become unconditional. Currently, it iscontemplated that these are: Ronald Brus, Leonard Kruimer and Jaap Goudsmit.

## Theextraordinary meeting of the Berna shareholders shall take place on or about January 11,2005 and in any case not later than five trading days prior to the end of theOffer Period. Members of the Crucell Supervisory Board and ma­nagement as wellas Crucell’s advisers shall be entitled to attend the extraordinary meeting(s) ofthe Berna shareholders.

## 4.2                                 Ifadopted by the extraordinary meeting of the Berna shareholders convened as setforth in Article 4.1, Berna shall, if Crucell has, after the lapse of theOffer Period, declared the Public Offer successful except for conditions thatare or become conditions subsequent, registerthe changes of Berna’s articles of incorporation removing the provisionsrestricting the transferability of the Berna Shares to 5% of the issued votingrights, i.e., to abolish the 2nd sentenceof Article 5(2) and the Articles 5(3) and 5(4) in theirentirety, with the competent commercial register not later than until the end of the mandatory additional acceptanceperiod, and use all commercially reasonable endeavours to procure the fulfilmentof the condition to the Public Offer set out in Section (e) of Annex 2.3(*the amendments of the articles of incorporationhave been entered into the commercial re­gister*) as soon aspossible.

## 4.3                                 Ifthe extraordinary meeting of the Berna shareholders convened as set forth in Article 4.1does not approve the proposed changes to Berna’s articles of incorporation removingthe provisions restricting the transferability of the Berna Shares to 5% of theissued voting rights, i.e., to abolish the 2nd sentence of Article 5(2) andthe Articles 5(3) and 5(4) in their entirety, the Berna Board shall,after the 

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## lapse of theOffer Period, upon request by Crucell unless Crucell has declared the PublicOffer as failed, as promptly as possible convene a second extraordinaryshareholders’ meeting in order to procure the satisfaction of the conditions tothe Public Offer set out in Section (d) of Annex 2.3 (*changes of Berna’s articles of incorporation**removing the provisions restricting the transferability of the BernaShares*) and in Section (e) of Annex 2.3 (*the amendments of the articles of incorporation have been entered intothe commercial register*).

## 4.4                                 Bernashall procure that the board representatives designated by Crucell shall beproposed by the Berna Board to the extraordinary meeting of the shareholdersconvened as set forth in Article 4.1 for election to the Berna Board,subject to the Public Offer becoming unconditional. If the representativesdesignated by Crucell are not validly elected to the Berna Board on or by thesettlement date of the Public Offer, the representatives designated by Crucellshall be entitled to receive, as of such date, all information provided tomembers of the Berna Board and to attend all meetings of the Berna Board with aconsulting vote. In addition, at the request of Crucell, the Berna Board shallconvene an extraordinary mee­ting of the shareholders with the agenda itemsthat Crucell may reasonably propose, including the election of new members ofthe Berna Board.

## 4.5                                 Bernashall procure that Crucell and its advisors are given due opportunity toreview, and comment on, the invitations to the meetings of the Berna sharehol­dersand the resolutions submitted for its approval, and consult with Crucell on allother relevant matters in connection with the meetings of the Berna sharehol­ders.

## 4.6                                 Itis the parties’ understanding that,following the settlement of the Public Offer, the Berna Board will be composed of 7 directors, including the3 directors designated by Crucell. The chairman shall be Peter Giger and the vice-chairmanRonald Brus. In order to achieve this result, Ulrich Ammann, Peter Grogg, JürgLegler and Urs Schaad have resigned as members of the Berna Board subject tothe Public Offer becoming unconditional; copies of the duly signed resignationdeclarations, received by Berna, are attached to this Agreement as Annex 4.6.

## **5.****                                      CertainRepresentations and Obligations of the Parties**

## 5.1                                 Bernahereby represents and warrants as of the date hereof that

### 5.1.1                        theinformation set forth in Recital A is true and correct,

 

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### 5.1.2                        it has nottaken, proposed or approved, since June 15, 2005, any actions that haveany dilutive effect on the Berna Shares, except for the issuance of shares andoptions under the ESOP and the ESPP respectively, as set forth in Annex A,

### 5.1.3                        except asset forth in Annex A, none of the options granted under the ESOPhave been exercised,

### 5.1.4                        after dueinquiry it is not aware of any Berna Material Adverse Event with respect toBerna Group,

### 5.1.5                        it is - in its reasonable judgement and after due inquiry -not aware of any facts or circumstances (other than as contemplatedherein), including any issues related to patent litigation that have not beenadequately disclosed to or disseminated in the public and that could have, ifdisclosed or disseminated, a material effect on the price of the Berna Shares,

### 5.1.6                        it is notaware of any particular facts or circumstances, which could impair or preventthe success of the Public Offer, Crucell’s interest in such Public Offer, orthe satisfaction of its conditions,

### 5.1.7                        theshareholdings of Berna in its subsidiaries correspond to the group chart in Annex 5.1.7,

### 5.1.8                        other thanoptions, which are not exercisable until their lapse on December 31, 2005,no options have been issued under the employee stock option plan of Green CrossVaccine Corporation and that there is no obligation of Green Cross VaccineCorporation for the issuance of such options,

### 5.1.9                        thatPricewaterhouseCoopers has issued a fairness opinion to Berna as set forth in Annex 5.1.9.

Immediately prior to each of (a) the publication of thePre-Announcement, (b) the publication of the prospectus of the PublicOffer and the documentation relating to the Crucell Exchange Share Offering and(c) any subsequent publication of an amendment of the Public Offer, thechairman and the CEO of Berna shall deliver to Crucell a certificate dated thatday confirming in writing, to the best of their knowledge, that the representationsset forth in this Article 5.1 are still true and correct as of such date(or specifying in what respect they are no longer true and correct).

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### 5.2                                 Crucellhereby represents and warrants to Berna as of the date hereof that

### 5.2.1                        theinformation set forth in Recital B is true and correct,

### 5.2.2                        it has nottaken, proposed or approved, since June 15, 2005, any actions that haveany dilutive effect on the Crucell Shares, except for the issuance of sharesand options under its employee stock options plan, as set forth in Annex B,

### 5.2.3                        after dueinquiry it is not aware of any Crucell Material Adverse Event with respect toCrucell Group,

### 5.2.4                        it is — inits reasonable judgement and after due inquiry - not aware of any facts orcircumstances (other than as contemplated herein) that have not been adequatelydisclosed to or disseminated in the public and that could have, if disclosed ordisseminated, a material effect on the price of the Berna Shares,

### 5.2.5                        it is notaware of any particular facts or circumstances, which could impair or preventthe success of the Public Offer, Berna’s interest in such Public Offer, or thesatisfaction of its conditions.

Immediately priorto each of (a) the publication of the Pre-Announcement, (b) thepublication of the prospectus of the Public Offer and the documentationrelating to the Crucell Exchange Share Offering and (c) any subsequentpublication of an amendment of the Public Offer, the chairman and the CEO ofCrucell shall deliver to Berna a certificate dated that day confirming inwriting, to the best of their knowledge, that the representations set forth inthis Article 5.2 are still true and correct as of such date (or specifyingin what respect they are no longer true and correct).

### 5.3                                 Theparties shall disclose to each other anything, which will or may impair thePublic Offer or prevent any of the conditions to the Public Offer set out in Annex 2.3from being satisfied, promptly upon such matter coming to their notice.

### 5.4                                 Subjectto any constraints under applicable law, the parties shall cooperate with eachother and give the other party, and its legal and financial advisors and auditors,reasonable access to the management, legal and financial advisors, documentsand information to the extent this is reasonably requested by a party or itsadvisors to conduct the actions reasonably requested or required (a) toprocure or verify the satisfaction of the conditions to the Public Offer, (b) toprepare or 

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## support anyfilings to the Swiss takeover board or otherwise, (c) to prepare thedocumentation and to support any filings in connection with the Crucell ExchangeShare Offering, (d) to perform any follow-up due diligence, and (e) toenable a smooth transition.

### 5.5                                 Unless(a) otherwise provided herein, or (b) resolved by a shareholders’meeting of Berna (i) convened at the specific request of third partyshareholders holding 10% or more of the voting rights or (ii) if theinclusion of the relevant item was added, at the request of shareholders holdingBerna Shares with a nominal value of CHF 1,000,000 or more, to the agendaof a shareholders’ meeting convened by the Berna Board, and in both cases (i) or(ii) the Berna Board recommended the rejection of the proposals made bysuch shareholder, the Berna Board shall procure that the Berna Group continuesto operate its business as a going concern, in the ordinary course of businessand consistent with prior practice and the currently existing business plan atall times from the date of this Agreement. Unless specifically provided in thisAgreement, the Berna Board shall procure that the Berna Group or any of itsmembers shall not, without prior consent of Crucell, which shall not beunreasonably withheld or delayed (or, if applicable merger control laws do notso permit, prior consultation of Crucell) do or agree to do any of thefollowing from the date of this Agreement:

### 5.5.1                        executeany contracts that would inhibit or impair the consummation of the Public Offerand the transactions contemplated und this Agreement;

### 5.5.2                        anythingwhich would constitute a Material Adverse Event;

### 5.5.3                        make anymaterial change in the terms of employment of any director, officer or employeeof the Berna Group other than in accordance with exis­ting agreements;

### 5.5.4                        alter oramend in any manner the articles of incorporation of the Berna Group, safe asrequired to procure satisfaction of the conditions to the Public Offer;

### 5.5.5                        issue orcreate any obligation to issue any shares, options, conversion rights or othersecurities in any member of the Berna Group, increase or reduce or otherwisechange the share capital or capital structure, or engage in any share splitswith respect to any member of the Berna Group;

### 5.5.6                        transferany assets or shares of any member of the Berna Group to a third party, otherthan in the ordinary course of business;

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### 5.5.7                        enterinto, or increase or extend any liability under any guarantee or indemnity inexcess of CHF 500,000 per item other than in the ordinary course ofbusiness but in any event not in excess of CHF 5,000,000 in the aggregate;

### 5.5.8                        increaseor extend any loan or advance or grant any credit to any third person in excessof CHF 500,000 per item other than in the ordinary course of business butin any event not in excess of CHF 5,000,000 in the aggregate;

### 5.5.9                        grant,create or allow to be created any lien over any of the Berna Group’s assetsother than liens arising by operation of law or in the ordinary course ofbusiness;

### 5.5.10                  borrow any moneyor incur any indebtedness or other liability as against a third party in excessof CHF 500,000 per item but in any event not in excess ofCHF 5,000,000 in the aggregate;

### 5.5.11                  declare, make orpay any dividend or other distribution, payable in cash, stock, property orotherwise;

### 5.5.12                  enter into,amend, modify or terminate or consent to the termination of any shareholders’agreement, joint venture, license, distribution and supply agreements, oramend, waive, modify, terminate or consent to the ter­mination of any member ofthe Berna Group’s rights thereunder, other than in the ordinary course ofbusiness (it being understood that entering, amending, modifying or terminatingof any agreements of strategic importance shall not be deemed to be in theordinary of course of business);

### 5.5.13                  take any actionwhich is inconsistent with the obligations of a target company pursuant to Article 29(2) SESTAor Articles 34 to 36 of the TOB Ordinance.

## 5.6                                 Bernais aware and acknowledges that, as of the date of this Agreement, it and allmembers of the Berna Group are considered as acting in concert with Crucellwith respect to the Public Offer in accordance with Article 11 TOB Ordinance.As a result of such acting in concert, Berna shall, at all times from the dateof this Agreement until the day falling six months after the end of theadditional acceptance period of the Public Offer, comply with all theobligations set out in Article 12(1) TOB Ordinance. Withoutlimitation to the generality of the foregoing Berna shall not, and shallprocure that neither the members of the Berna Group

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## nor any person on their behalf shall:

### 5.6.1                        acquire,or agree to acquire, any Berna Shares, or enter into any derivative transactionin relation to Berna Shares; or

### 5.6.2                        change oramend the terms and conditions of the existing ESOP and ESPP and the optionsgranted thereunder, or establish any new share option or participation plans,with respect to Berna Shares.

## 5.7                                 Followingthe settlement of the Public Offer, Berna shall support any commerciallyreasonable actions proposed by Crucell in order to de-list the Berna Shares, toachieve control over 100% of the Berna Shares or to prepare and facilitate thecombination and integration of the Berna Group with the Crucell Group,including those contemplated in Articles 2.8 and 2.9.

## 5.8                                 Theparties agree that the initial management committee of Crucell post transactionshall be as follows:

- CEO: Ronald Brus

- CFO: LeonKruimer

- CBO: Kuno Sommer

- CSO: JaapGoudsmit

- COO: SimonRothen

- Strategy &Integration: John Lambert

- General Counseland Corporate Secretary: René Beukema

Ronald Brus, LeonKruimer, and Jaap Goudsmit are members of the management board of Crucell.

## **6.****                                      ESOPOptions and ESPP Shares**

## 6.1                                 Subject to thesettlement of the Public Offer, Crucell shall offer to the holders of ESOPoptions not exercised on the date of the settlement of the Public Offer (providedthat, for avoidance of doubt, all options in-the-money may be exercised afterthe Offer having been declared successful by Crucell until the end of themandatory additional offer period irrespective of their initial vesting period,which shall be waived for such purpose by Berna) the exchange of such ESOP optionsinto substantially equivalent options for such number of Crucell shares cor­respondingto the Exchange Ratio or, if Crucell so chooses, the termination against anadequate indemnification (at Crucell’s choice) in cash or in Crucell shares.Such options for Crucell shares shall, if currently applicable, provide for 

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## essentially the same vesting periods,forfeiture clauses and other elements as the ESOP options. The strike priceshall be set at a level that will fairly reflect the value of the ESOP optionscorresponding to the Exchange Ratio using a gene­rally accepted optionvaluation formula. The holders of ESOP options shall in no event be entitled toa consideration that could lead to an increase of the consi­deration to be paidto the holders of Berna shares pursuant to the best price rule.

## 6.2                                 Tenderingholders of Berna Shares locked-in under the ESPP shall receive thecorresponding number of Crucell Shares corresponding to the Exchange Ratio, tobe delivered into the account of the holders free of any restriction under theESPP.

## 6.3                                 Concurrentwith the launch of the Public Offer, Berna shall waive vis-à-vis the relevantholders of options under the ESOP and of Berna Shares under the ESPP the transfer restrictions if and to theextent that such options or Berna Shares shall be transferred to Crucell inconnection with the Public Offer or as contemplated in this Article 6.

## **7.****                                      PressReleases and Other Public Announcements; Confidentiality**

## Following thedate of this Agreement, all public announcements or press releases issued inconnection with the Public Offer shall only be published after Crucell andBerna shall have consulted and agreed on the contents of such publicannouncements or press releases. Nothing in this Agreement shall restrict orprohibit:

## 7.1                                 anyannouncement or disclosure required by statutory law or by any competentjudicial or regulatory authority or by any competent securities exchange (inwhich case the parties shall cooperate in good faith in order to agree on thecontent of any such announcement prior to it being made);

## 7.2                                 Crucellor Berna from making any disclosure to any of its directors, officers,employees, agents or advisors who are required to receive such information tocarry out their duties (conditional upon any such person agreeing to keep suchinformation confidential for so long as the disclosing party is obligated to doso in accordance with Article 7 or applicable law); or

## 7.3                                 Crucellfrom publishing any filings, prospectuses, public announcements, statements orpress releases in connection with the Public Offer and the issuance of theCrucell Exchange Shares as it considers appropriate.

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Sections 1, 2, 8 and 9 of the non-disclosure agreement concluded amongthe parties on August 17, 2005 as amended on August 30, 2005, on October 31,2005 and on November 29, 2005, shall continue to be valid and enforceable,with all other obligations being terminated hereby. The surviving sectionsshall, however, terminate, if the Public Offer is settled.

# **8.****                                      Costsand Expenses**

# 8.1                                 Exceptas expressly provided otherwise herein, each party shall bear its own costs andexpenses (including advisory fees) incurred in the negotiation, preparation andcompletion of this Agreement.

# 8.2                                 Bernaagrees to pay to Crucell an amount of CHF 3.5 million as a liquidatedcompensation of parts of the costs that Crucell and its advisors have incurredor will incur for making and|or preparing the Public Offer if the Public Offerdoes not become unconditional or is otherwise not successful because acompeting offer to the Public Offer is a Superior Offer (which shall *inter alia* be deemed the case for thepurposes of this clause if the competing bidder declares its offer successfulafter the regular offer period).

The compensation payment shall become due and payable within 20 tradingdays after any of the above events has occurred and Crucell has publicly declaredthat the Public Offer has failed.

# **9.****                                      Termination**

# 9.1                                 ThisAgreement may be terminated with immediate effect either by mutual writtenconsent of the parties or by giving notice in writing to the other party:

### 9.1.1                        by eachparty if Crucell publicly declares that the Public Offer will not be furtherpursued or has failed or if Crucell otherwise withdraws from launching,continuing or settling the Public Offer (where permitted by the law and thisAgreement);

### 9.1.2                        by eachparty if the other party materially breaches any representations or materiallyviolates its obligations under this Agreement, unless immediately and fullyremedied by the breaching party;

### 9.1.3                        by eachparty if the Public Offer is not pre-announced on or before December 15,2005 or is not launched within the periods provided by takeover law (or withinany extension granted by the Swiss takeover board);

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### 9.1.4                        by eachparty upon the pre-announcement (in accordance with takeover law) or launch ofa Superior Offer unless Crucell (a) agrees in writing, within *three* trading days of such announcement or pre-announcementto improve the terms and conditions of the Public Offer in a manner that thecompeting offer no longer constitutes a Superior Offer, and (b) publiclyannounces, by way of a press release or otherwise, such improvement of thePublic Offer on the fourth trading day following such pre-announcement orlaunch of the Superior Offer (provided that, for the avoi­dance of doubt, theformal publication of such change to the Public Offer may occur thereafter butin any event on or by the latest date on which the publication of an amendmentto the Public Offer is permitted under Swiss takeover laws and regulations);

### 9.1.5                        by eachparty if a competing offer to the Public Offer has an acceptance rate of 50% ormore of all voting rights and is declared successful by the competing bidder;

### 9.1.6                        by Bernain case of a Crucell Material Adverse Event and by Crucell in case of a BernaMaterial Adverse Event; or

### 9.1.7                        by Crucellin case that the satisfaction of any of the conditions contemplated in Annex 2.3have turned out to be impossible.

# 9.2                                 Ifthis Agreement is terminated according to Article 9.1, such terminationshall be without liability of any party to the other party (save as set out in Article 8.2,which shall prevail); provided that if such termination shall result from thebreach by any party of its obligations under this Agreement, such party shallbe fully liable for all damages suffered by the other party and for costsincurred that become futile as a result of such breach. For the avoidance ofdoubt, except as set forth in this Agreement and unless this Agreement shouldbe terminated as provided in this Agreement, the parties shall be bound topursue and support the Public Offer, except if such obligation would be voiddue to a violation of mandatory laws or for other reasons.

## 9.3                                 Ifthis Agreement is terminated as provided herein, all provisions of this Agreementshall cease to be effective except as set forth in Article 7, lastparagraph (*Confidentiality and Non-Solicitation*)and for Article 8 (*Costs and Expenses*),Article 9 (*Termination*) and Article 10(*Governing Law and Arbitration*).

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# **10.****                               GoverningLaw and Arbitration**

# 10.1                           ThisAgreement shall be governed by and construed in accordance with the sub­stantivelaws of Switzerland.

# 10.2                           Alldisputes arising out of or in connection with this Agreement, including disputeson its conclusion, binding effect, amendment and termination shall be resolved,to the exclusion of the ordinary courts, by arbitration in accordance with theSwiss Rules of International Arbitration of the Swiss Chambers of Commercein force on the date when the Notice of Arbitration is submitted in accordancewith these Rules. The number of arbitrators shall be three. Each party shall appointone arbitrator and the arbitrators so appointed shall appoint the chairman. Theseat of the arbitration shall be in Berne. The arbitral proceedings shall beconducted in English. In addition, interim relief can be sought with anycompetent court or authority.

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**So agreed**with effect as per the date firstabove mentioned:
| Crucell N.V. |   |         |   | Berna Biotech AG |   |         |
|--------------|--------|--------------|--------|------------------|--------|--------------|
|         |   |         |   |             |   |         |
|         |   |         |   |             |   |         |
|         |   |         |   |             |   |         |
| Ronald Brus  |   | Leon Kruimer |   | Peter Giger      |   | Juerg Witmer |

 

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