Exhibit
4.14


 




	
  Confidential

  	
   

  	
  Execution Copy

  






 


	
  Crucell N.V.

  	
   

  
	
  Confidential Materials Omitted and
  Filed Separately with the

  	
   

  
	
  Securities and Exchange Commission.

  	
   

  
	
  Confidential
  Portions denoted by ***

  	
   

  



 


 


SHAREHOLDER AGREEMENT


 


 


SEPTEMBER 28, 2009


 


 


between


 


JHC NEDERLAND B.V.


 


and


 


CRUCELL N.V.


 


 





 


Allen & Overy LLP


 

















 


CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
  1.

  	
  Interpretation

  	
   

  	
  1

  
	
  2.

  	
  Effect

  	
   

  	
  1

  
	
  3.

  	
  Standstill

  	
   

  	
  1

  
	
  4.

  	
  Restrictions on Transfer

  	
   

  	
  3

  
	
  5.

  	
  Pre-emptive Rights

  	
   

  	
  3

  
	
  6.

  	
  Investor Approval Rights

  	
   

  	
  5

  
	
  7.

  	
  Anti-Dilution Protection

  	
   

  	
  5

  
	
  8.

  	
  Drag Along Right

  	
   

  	
  7

  
	
  9.

  	
  Tax and Accounting Matters

  	
   

  	
  8

  
	
  10.

  	
  Fees and Costs

  	
   

  	
  10

  
	
  11.

  	
  Confidentiality and Announcements

  	
   

  	
  10

  
	
  12.

  	
  Notices

  	
   

  	
  10

  
	
  13.

  	
  Assignments

  	
   

  	
  12

  
	
  14.

  	
  General

  	
   

  	
  12

  
	
  15.

  	
  Whole Agreement

  	
   

  	
  13

  
	
  16.

  	
  No Rescission

  	
   

  	
  13

  
	
  17.

  	
  Governing Law and Jurisdiction

  	
   

  	
  13

  
	
  18.

  	
  Language

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Interpretation

  	
   

  	
  18

  



 

















 


THIS AGREEMENT (the Agreement) is made on September 28, 2009,


 


BETWEEN:


 


(1)                                 JHC NEDERLAND
B.V., a private company with limited liability incorporated
under the laws of the Netherlands, with its corporate seat in Amersfoort and
its principal offices located at Dr Paul Janssenweg 150, 5026 RH Tilburg, the
Netherlands, registered with the trade register under number 18039770 (Investor); and


 


(2)                                 CRUCELL N.V., a public limited
liability company incorporated under the laws of the Netherlands, with its
corporate seat in Leiden and its principal offices located at Archimedesweg 4,
2333CN Leiden, the Netherlands, registered with the trade register under number
28087740 (the Company).


 


Each of the parties mentioned under
(1) and (2) hereinafter referred to as a Party,
and collectively as the Parties.


 


BACKGROUND:


 


(A)                               Concurrently
with the entering into of this Agreement the Parties are entering into an
equity purchase agreement (the Equity Purchase Agreement)
pursuant to which Investor is acquiring upon Closing 14,626,984 new Ordinary
Shares (the Shares).


 


(B)                               It is a
condition to the Equity Purchase Agreement that the Parties enter into this
Agreement.


 


(C)                               In this
Agreement, the Company and Investor wish to set forth certain arrangements in
respect of Investor’s shareholding in the Company.


 


IT IS AGREED as follows:


 


1.                                     INTERPRETATION


 


In addition to terms defined elsewhere
in this Agreement, the definitions and other provisions in Schedule 1
(Interpretation) apply throughout this Agreement.


 


2.                                     EFFECT


 


2.1                              This Agreement
will become effective as of Closing.


 


3.                                     STANDSTILL


 


3.1                              For a period
of three (3) years from the Closing Date (the Standstill
Period), Investor will not, and will cause its Affiliates not to,
without the prior written approval of the Company or as otherwise provided in
this Section 3, directly or indirectly, (x) purchase or acquire
Qualified Securities, or (y) commence a Public Offer if, in either case,
the consummation of such purchase or acquisition or Public Offer would result
in Investor and its Affiliates in the aggregate Beneficially Owning (assuming
the exercise, exchange or conversion of all securities exercisable or
exchangeable for or convertible into or otherwise giving the holder thereof any
rights in respect of Company Voting Securities held by them), directly or
indirectly, greater than 18% of the issued and outstanding Company Voting
Securities (assuming the exercise, 


 


1




 










 


exchange or conversion of all
securities exercisable or exchangeable for or convertible into or otherwise
giving the holder thereof any rights in respect of Company Voting Securities
held by Investor and its Affiliates) (the Ownership Limit);
provided that no purchase or acquisition of Qualified Securities shall
be deemed to occur solely due to (a) an exchange of Ordinary Shares for
ADS or ADS for Ordinary Shares, a stock split, reverse stock split,
reclassification, reorganization or other transaction by the Company affecting
the Company Voting Securities generally, (b) a stock dividend or other pro
rata distribution by the Company to holders of the outstanding Company
Voting Securities or (c) any other change in the outstanding number of
Company Voting Securities;  and provided
further that nothing in clause (y) above shall prevent Investor or
any Affiliate of Investor from communicating with the Company to request
permission to make a Public Offer or negotiate the terms of a Public Offer so
long as neither the fact that such communication or request has been made or
any of the terms thereof or facts with respect thereto are publicly disclosed,
directly or indirectly, by Investor or any of its Affiliates prior to the time
any such Public Offer is publicly announced by the Company and Investor for the
first time (eerste aankondiging) in accordance with
the Dutch public offer rules.


 


3.2                              For the
avoidance of doubt and notwithstanding anything in Section 3.1 to the
contrary, nothing in this Section 3 shall prohibit, limit or restrict
Investor and its Affiliates from exercising their respective rights, performing
their respective obligations or otherwise consummating the transactions
contemplated by this Agreement or the other Transaction Documents, in each case
in accordance with the terms thereof.


 


3.3                              Notwithstanding
anything in Section 3.1 to the contrary, nothing in this Section 3
shall prohibit Investor or any of its Affiliates from acquiring any Qualified
Securities or the securities of any successor to or person in control of the
Company by or through (i) a diversified mutual or pension fund managed by
an independent investment adviser or pension plan established for the benefit
of Investor’s or any of its Affiliates’ employees or (ii) any
401(k) or similar bona fide benefit plan maintained for the benefit of
employees of Investor or any of its Affiliates (and, in the case of subsections
(i) and (ii) of this sentence, any such Qualified Securities shall
not be considered Beneficially Owned by Investor for purposes of determining
whether the Ownership Limit has been or would be exceeded for any and all
purposes of this Agreement); provided that, in each case, neither
Investor nor any of its Affiliates shall in any way request or direct that the
trustee or other administrator of such plan purchase or acquire any Qualified
Securities. Further, nothing herein shall prevent Investor or any of its
Affiliates from acquiring securities of, or from entering into any merger or
other business combination with, another person that Beneficially Owns any
Qualified Securities or the securities of any successor to or person in control
of the Company; provided, however, that (x) such person
shall have acquired such Qualified Securities or other securities other than in
contemplation of Investor or any of its Affiliates acquiring the securities of,
or entering into any such merger or other business combination with, such
person and (y) the Beneficial Ownership of such Qualified Securities or
other securities by such person shall not be a primary reason for Investor or
any of its Affiliates acquiring the securities of, or entering into any such
merger or other business combination with, such person.


 


3.4                              The Standstill
Period will terminate and the provisions of this Section 3 will no longer
be in force and effect in the event that (i) a third party publicly
announces (eerste aankondiging) or makes (uitbrengen) a Public Offer, (ii) a third party, or a
group of third parties acting in concert, acquires 18% or more of the issued
and outstanding Qualified Securities, in each case without the consent or
recommendation of the management board or supervisory board of the Company,
(iii) the Company intends to enter into or publicly announces that it is
considering a Business Combination Transaction or a Business Combination
Proposal, (iv) the Company enters into a definitive agreement providing
for a Business 


 


2




 










 


Combination Transaction or (v) the
Flu-Mab Agreement and the Innovation Agreement are terminated (other than as a
result of a material breach by Investor).


 


4.                                     RESTRICTIONS ON TRANSFER


 


4.1                              For a period
of three (3) months following the Closing Date (the Lock-Up
Period), Investor shall not be permitted to, directly or indirectly,
sell and/or transfer or otherwise dispose of all or part of the Shares (or ADS
acquired in exchange for all or a portion of the Shares) other than as provided
in this Agreement (the Lock-Up).


 


4.2                              The
restrictions set forth in Section 4.1 above will not apply (i) to
transfers to Investor’s Affiliates, subject to such Affiliates adhering to the
obligations of Investor under this Agreement including the Lock-Up,
(ii) to exchanges of Shares for ADS, and (iii) in the event that the number of issued and outstanding Ordinary
Shares (including Ordinary Shares represented by ADS) would be reduced by reason of a tender offer or other repurchase thereof
made by the Company or any of its Subsidiaries and in respect of which Investor
is not solicited on a pro rata basis,
to the extent necessary to prevent the Shares Beneficially Owned by Investor
from constituting in excess of the Ownership Limit, but only after
all material conditions with respect to such tender offer or other repurchase
transaction (other than any such condition that can be satisfied only at the
closing thereof) have been satisfied or irrevocably waived by the Company; provided,
however, that this subsection (iii) shall cease to apply in the
event that Investor acquires (in accordance with the terms of this Agreement)
additional Ordinary Shares (including Ordinary Shares represented by ADS),
which acquisition results in the shareholding of Investor exceeding the
Ownership Limit.


 


4.3                              The Lock-Up
Period will terminate and the provisions of this Section 4 will no longer
be in force and effect in the event that (i) a third party publicly
announces (eerste aankondiging) a Public Offer or
acquires 18% or more of the issued and outstanding Company Voting Securities,
in each case, without the consent or recommendation of the management board or
supervisory board of the Company, (ii) the Company intends to enter into
or announces publicly that it is considering a Business Combination Transaction
or a Business Combination Proposal or (iii) the Flu-Mab Agreement and the
Innovation Agreement are terminated (other than as a result of a material
breach by Investor).


 


5.                                     PRE-EMPTIVE RIGHTS


 


5.1                              Subject to
Section 5.5, if the Company at any time or from time to time proposes to
issue any Qualified Securities (including any issuance of Qualified Securities
that results, through a series of one or more related transactions, in the
Company receiving, directly or indirectly, cash for such issuance), the Company
shall, no later than fifteen (15) Business Days prior to the proposed
consummation of such issuance give written notice thereof to Investor (the Pre-emptive Rights Notice). Such Pre-emptive Rights Notice
shall contain the amount and class of Qualified Securities to be issued, the
purchase price in respect thereof, the prospective purchasers thereof, if
known, and any other terms the Company determines are pertinent regarding the
proposed issuance and shall also contain an offer to issue to Investor, at the
same purchase price per Qualified Security at which the Company issues such
Qualified Securities to the other proposed purchasers thereof, that number of
Qualified Securities (the Pre-emptive Securities)
equal to the product of Investor’s Proportionate Interest multiplied by the
total number of Qualified Securities being offered (the Pre-emptive
Rights); provided, however, that the number of
Pre-emptive Securities to be offered to Investor pursuant to this
Section 5.1 shall be reduced by the number of Qualified Securities that
Investor would otherwise have the right to purchase in 


 


3




 










 


connection with such issuance pursuant
to applicable statutory pre-emptive rights (after giving effect to any waiver,
in whole or in part, of such statutory pre-emptive rights by the Company’s
shareholders, to the extent that such waiver is binding on Investor) or any
other contractual pre-emptive rights that Investor may enforce against the
Company. At any time within fifteen (15) Business Days after receipt of the
Pre-emptive Rights Notice (the Pre-emptive Rights Period)
Investor may accept the offer made to it in the Pre-emptive Rights Notice, by
furnishing notice of acceptance thereof to the Company (the Pre-emptive Rights Acceptance Notice). Failure by Investor
to provide a Pre-emptive Rights Acceptance Notice within the Pre-emptive Rights
Period shall be deemed to constitute an election by Investor not to exercise
its Pre-emptive Rights.


 


5.2                              If at the end
of the Pre-emptive Rights Period less than all of the Pre-emptive Securities
are accepted for purchase by Investor pursuant to Section 5.1, the Company
shall be entitled to proceed with the issuance of the Pre-emptive Securities
that Investor did not accept for purchase pursuant to Section 5.1, on
terms not more favourable than (including as to form of consideration), and for
a purchase price equal to or higher than, that set forth in Pre-emptive Rights
Notice.


 


5.3                              The closing of
the purchase of Pre-emptive Securities accepted for purchase pursuant to
Section 5.1 shall take place together with the closing of the
issuance to the other proposed buyer(s) and such purchase shall be at the
purchase price specified in the Pre-emptive Rights Notice paid by wire
transfer of immediately available funds or pursuant to the same terms and
conditions offered to the proposed buyer(s) of Qualified Securities set
forth in the Pre-emptive Rights Notice, in either case in the appropriate
amount or other consideration (or a reasonable monetary equivalent of such
other consideration) as indicated in such notice against delivery of
certificates or other instruments representing the Pre-emptive Securities so
purchased.


 


5.4                              Investor may
at its discretion by written notice to the Company waive its Pre-emptive Rights
under this Section 5.1 in whole or in part at any time.


 


5.5                              Notwithstanding
anything to the contrary in this Agreement, Investor shall not be granted
Pre-emptive Rights with respect to (i) issuances of options to employees
of the Company pursuant to the ESOP, (ii) issuances of Ordinary Shares
pursuant to the exercise of options issued under the ESOP; or
(iii) issuances of Qualified Securities in connection with the acquisition
(whether by merger or otherwise) of all or part of the outstanding capital
stock or assets of a third party; provided such acquisition is on an arm’s
length basis, at market conditions and within the boundaries authorized in the
Company’s shareholder meetings; and provided further that no Competitor would
acquire 18% or more of the issued and outstanding Company Voting Securities
(assuming the exercise, exchange or conversion of all securities exercisable or
exchangeable for or convertible into or otherwise giving the holder thereof any
rights in respect of Company Voting Securities held by such Competitor or its Affiliates)
immediately after such issuance as a result thereof.


 


5.6                              Investor’s
Pre-emptive Rights shall expire and no longer be available upon Investor
(together with its Affiliates) ceasing to have Beneficial Ownership of at least
12% of the issued and outstanding Ordinary Shares (including Ordinary Shares
represented by ADS); provided that Ordinary Shares issued pursuant to
Section 5.5 above shall be disregarded for the purposes of determining
whether Investor’s Beneficial Ownership falls below 12% of the issued and
outstanding Ordinary Shares (including Ordinary Shares represented by ADS).


 


4




 










 


6.                                     INVESTOR APPROVAL RIGHTS


 


6.1                              The Company
shall not, without the prior written approval of Investor: (i) commence a
tender offer or repurchase of Company Voting Securities if the consummation of
such tender offer or repurchase would result in Investor holding more than 18%
of the issued and outstanding Company Voting Securities, (ii) grant
options or other equity awards in excess of the amounts authorized under the
ESOP, or (iii) amend the Articles of Association in a manner that would
create a new class of securities or make the current rights of the shareholders
meeting subject to proposals of the management board and/or supervisory board
of the Company or subject to other limitations.


 


6.2                              The approval
rights set forth in Section 6.1 shall expire and no longer be available
upon Investor (together with its Affiliates) ceasing to have Beneficial
Ownership of at least 10% of the issued and outstanding Ordinary Shares
(including Ordinary Shares represented by ADS); provided that Ordinary
Shares issued pursuant to Section 5.5 above shall be disregarded for the
purposes of determining whether Investor’s Beneficial Ownership falls below 10%
of the issued and outstanding Ordinary Shares (including Ordinary Shares
represented by ADS).


 


7.                                     ANTI-DILUTION PROTECTION


 


7.1                              If at any time
within nine (9) months following the Closing Date (the Anti-Dilution Period) the Company experiences the
consummation of an Anti-Dilution Acquisition Event or the Company enters into
definitive documentation with respect to any Business Combination Transaction
that would (or could reasonably be expected to) lead to an Anti-Dilution
Acquisition Event, Investor shall receive a cash payment of the Anti-Dilution
Amount pursuant to this Section 7 upon consummation of such Anti-Dilution
Event.


 


7.2                              During the
Anti-Dilution Period, the Company shall not (i) enter into definitive
documentation with respect to any Business Combination Transaction that would
(or could reasonably be expected to) lead to an Anti-Dilution Acquisition Event
unless the counterparty to such Business Combination Transaction (the Acquirer) agrees to be bound by the provisions of this Section 7
or (ii) consummate a Business Combination Transaction which would result
in an Anti-Dilution Acquisition Event unless the Anti-Dilution Amount is paid
to Investor in connection with such Business Combination Transaction.


 


7.3                              Within five
(5) Business Days of the execution of the definitive documentation with
respect to a Business Combination Transaction which will (or could reasonably
be expected to) lead to an Anti-Dilution Acquisition Event, the Company shall
provide written notice (the Anti-Dilution Notice)
to Investor of such potential Anti-Dilution Acquisition Event, including
(i) the Acquisition Price, (ii) the Anti-Dilution Amount, along with
a calculation of such Anti-Dilution Amount, (iii) the current market
prices of any securities which may be offered as consideration for the Company
Voting Securities (including ADS) in the Business Combination Transaction,
(iv) the proposed closing date for Business Combination Transaction, and
(v) informing Investor that it is entitled to exercise its rights under
this Section 7.


 


7.4                              In the event
that the Acquisition Price in such Business Combination Transaction is not
payable in cash, marketable securities, or other consideration to which a cash
value can be readily determined, the Acquirer and Investor shall, for a period
of fifteen (15) Business Days following delivery of the Anti-Dilution Notice,
negotiate a mutually acceptable Anti-Dilution Amount to apply to the Shares. If
the Acquirer and Investor cannot agree on an acceptable Anti-Dilution Amount
prior to the expiration of 


 


5




 










 


such fifteen (15) Business Day-period,
the Acquirer and Investor shall each appoint, within ten (10) Business
Days after the expiration of such fifteen (15) Business Day-period an
independent investment bank of international standing (any banks so appointed,
the Investor  Expert and Acquirer Expert, respectively, and collectively, the Experts) to determine the Fair Value (as
defined below) of the Anti-Dilution Amount.


 


7.5                              For purposes
of Section 7.4 above, the Fair Value
of the Anti-Dilution Amount shall be the average of the values that the Experts
determine, in their respective opinions, to be the appropriate dollar amount of
the Anti-Dilution Amount (expressed in Euros); provided, however,
if the difference between fair market values determined by the Experts (each
such appraisal, a Valuation) is
equal to or more than 10% of the higher Valuation, (i) the Experts shall
jointly select and engage, within thirty Business Days of the date when the
previous Valuations were submitted, a third independent investment bank of
international standing (the Third Bank),
(ii) such Third Bank shall prepare a Valuation within thirty Business Days
of the date of its engagement, and (iii) the Fair Value of the
Anti-Dilution Amount shall be the average of the Valuation determined by the
Third Bank and the Valuation of the Expert which is closest in value to the
Valuation of the Third Bank.


 


7.6                              Within five
(5) Business Days of the time of the consummation of an Anti-Dilution
Acquisition Event as meant under Section 7.1 through 7.3, the Acquirer (or
the Company under the circumstances set forth in Sections 7.7 or 7.8 below)
shall make a cash payment of the Anti-Dilution Amount to Investor, which for
the avoidance of doubt shall be in addition to any amounts Investor may receive
as consideration for the Shares pursuant to the Business Combination
Transaction resulting in the Anti-Dilution Acquisition Event.


 


7.7                              In the event
that a Public Offer results in an Anti-Dilution Acquisition Event, the Company
will be responsible for paying the Anti-Dilution Amount to Investor in
connection with such Anti-Dilution Acquisition Event in accordance with this
Clause 7 and will be bound by the same obligations as the Acquirer set forth in
this Section 7.


 


7.8                              In the event
that a Business Combination Transaction referred to in sub-clause (iii) of
the definition of Change of Control results in an Anti-Dilution Acquisition
Event, the Company will be responsible for paying the Anti-Dilution Amount to
Investor in connection with any liquidation or the Company or any distributions
or dividends of the proceeds of such Business Combination Transaction made to
the shareholders of the Company on a pro-rata basis and will be bound by the
same obligation as the Acquirer set forth in this Section 7.


 


7.9                              The Company
will ensure that Investor is allowed to participate in any Business Combination
Transaction which would lead to a Anti-Dilution Acquisition Event and sell all
of its Shares in such Business Combination Transaction (or, in the case of an
Anti-Dilution Acquisition Event arising by virtue of a transaction described in
clause (iii) of the definition of Change of Control, receive dividends or
distributions of the net proceeds of such transaction).


 


7.10                       The Company
agrees that it will not consummate any Anti-Dilution Acquisition Event if as a
result of such Anti-Dilution Acquisition Event (i) the Company and the
Acquirer would not be capable of complying with its respective obligations
under this Section 7, or (ii) Investor would not be allowed to
participate in such Anti-Dilution Event and sell all of its Shares in such
Anti-Dilution Acquisition Event.


 


6




 










 


7.11                       Investor may
at its discretion by written notice to the Company waive its entitlement under
this Section 7 in whole or in part at any time.


 


7.12                       The Company
agrees that to the extent that (i) its entry into definitive documentation
with respect to, or consummation of, a proposed Business Combination
Transaction that would lead to an Anti-Dilution Acquisition Event,
(ii) the payment of the Anti-Dilution Amount to Investor or
(iii) Investor’s participation in a proposed Business Combination
Transaction that would lead to an Anti-Dilution Acquisition Event, is (with
respect to (i), (ii) or (iii) or any other provisions of this
Section 7) not possible without violating Rule 4e-10 of the Exchange
Act (the Best Price Rule) or any other
rules or regulations under the Exchange Act and the Dutch Financial
Supervision Act (Wet op het financieel toezicht)
and the Public Takeover Decree (Besluit openbare biedingen)
relating to tender offers, the Company shall not pursue or consummate such
transaction until Investor’s rights under this Section 7 have expired or
unless the terms of such transaction are revised such that the proposed
Business Combination Transaction can be consummated in compliance with this
Section 7 without violating the Best Price Rule or any such related
provisions of the Exchange Act or the Dutch Financial Supervision Act (Wet op het financieel toezicht) and the Public Takeover
Decree (Besluit openbare biedingen). The Company
agrees that nothing in this Section 7 shall be interpreted as requiring
the Company or any counterparty to a Business Combination Transaction to
violate or breach the Best Price Rule or any such related provisions of
the Exchange Act, the Dutch Financial Supervision Act (Wet op het
financieel toezicht) and the Public Takeover Decree (Besluit openbare biedingen).


 


8.                                     DRAG ALONG RIGHT


 


8.1                              If the Company
or the Company’s stockholders receive a bona fide Public Offer from a third
party (which will not include any Offer by an Affiliate of the Company or any
Group Company) and (i) the management board and supervisory boards of the
Company have endorsed, approved, recommended or otherwise supported such Public
Offer, (ii) the holders of at least 70% of all issued and outstanding
Company Voting Securities (including those held by Investor and/or its Affiliates)
have tendered their shares to the third party in connection with such Public
Offer (a Public Offer meeting the requirements of clauses (i) and
(ii) being an Approved Public Offer)
and (iii) Investor and/or any of its Affiliates do not have a bona fide
matching (x) counter Public Offer to the Company’s shareholders or
(y) other Business Combination Proposal with the Company pending, Investor
and its Affiliates shall agree to tender and sell all of their Ordinary Shares
and/or ADS in such Public Offer pursuant to this Section 8 to the extent
permitted by applicable law and the terms of the Approved Public Offer.


 


8.2                              The Company
shall provide Investor a reasonable detailed description of the Approved Public
Offer, including (i) the proposed time and place of closing, (ii) the
consideration to be received by the stockholders, (iii) the name and
address of the person making the Approved Public Offer, (iv) any other
material terms of the Approved Public Offer (to the extent not sufficiently set
out in the offer document related to the approved Public Offer) and
(v) confirmation that the Public Offer is an Approved Public Offer (the Public Offer Notice).


 


8.3                              Within two
(2) Business Days of receipt of such Public Offer Notice, if the offeror
declares the Approved Public Offer unconditional in accordance with the Dutch
offer rules, Investor shall agree, subject to Section 8.1 above, to tender
all of its Ordinary Shares and/or ADS on the terms and conditions of the
Approved Public Offer to the extent permitted by applicable law and the terms
of the Approved Offer; provided that the payment and other terms
applicable to Investor in the Approved Public
Offer may not be less favourable to Investor than the terms offered to the
other holders of Ordinary Shares 


 


7




 










 


and/or ADS; and provided  further
that Investor shall still be entitled to receive the Anti-Dilution Amount in
the event that the Approved Public Offer would result in a Anti-Dilution
Acquisition Event in accordance with Section 7.


 


8.4                              Investor shall
take all reasonably necessary actions to consummate the sale of its Ordinary
Shares and/or ADS on the terms and conditions set forth in Section 8.3.


 


8.5                              For the
avoidance of doubt, except as specifically set forth in this Section 8,
Investor and its Affiliates will retain their rights to vote the Shares and
make all decisions with respect to the divestiture of such Shares.


 


9.                                     TAX AND ACCOUNTING MATTERS


 


9.1                              The Company
will provide and cause each Group Company to provide, upon reasonable prior
notice, such information as may be reasonably required to enable Parent and any
of its subsidiaries to accurately and timely comply with such person’s U.S. tax
reporting obligations under the Internal Revenue Code of 1986, as amended,
arising in connection with its ownership of the Company’s securities,
including, but not limited to, each Group Company’s audited financial
statements and the financial statements of any legal entity in which a Group
Company owns an equity interest. Notwithstanding
the foregoing, the Company shall not be required to provide information that it
cannot reasonably obtain with respect to any legal entity that is not a Group
Company.


 


9.2                              The Company
will, if necessary and upon reasonable prior notice, permit Parent (or its
authorized representative) reasonable access to examine and copy the books of
account, records and other documentation of each Group Company, in each case as
may be reasonably required to verify the information provided pursuant to Section 9.1
above.


 


9.3                              The Company
will retain and cause each Group Company to retain all records reasonably
required to calculate the earnings and profits of and taxes paid for U.S.
federal income tax purposes by each Group Company for so long as Parent owns,
directly, indirectly or constructively, at least 10% of the issued and
outstanding Company Voting Securities and, upon reasonable prior notice, to
permit Parent (or its authorized representative) reasonable access to copy such
records.


 


9.4                              The Company
will notify Parent of any change to the entity classification under U.S.
Treasury Regulation Sections 301.7701-2 and -3 of any Group Company.  The
Company will use reasonable efforts to request the entity classification under
such U.S. Treasury Regulations of any legal entity in which a Group Company
holds a minority equity interest and notification of any changes to such
classification.


 


9.5                              In the event
that Parent is required to account for its investment in the Company under the
equity method of accounting (determined in accordance with US GAAP) as
applicable to Parent and subject to applicable law, the Company shall use its
commercially reasonable efforts to:


 


(a)                                 prepare and
deliver to Parent, within 120 calendar days after the end of each fiscal year of
the Company, the following audited financial statements with respect to the
Company and its Subsidiaries: (i) a consolidated balance sheet of the
Company and its Subsidiaries as of the end of such fiscal year; (ii) a
consolidated income (loss) statement of the Company and its Subsidiaries for
such fiscal year; (iii) a consolidated statement of cash flows of the
Company 


 


8
















 


and its Subsidiaries for such fiscal year, and (iv) a
consolidated statement of changes in shareholders’ equity of the Company and
its Subsidiaries for such fiscal year;


 


(b)                                 prepare and
deliver to Parent, within the earlier of (i) sixty (60) calendar days
after the end of each of the first three fiscal quarters in any fiscal year of
the Company or (ii) five (5) days after publication and within the
earlier of (x) seventy-five (75) calendar days after the end of the fourth
fiscal quarter of the Company in any fiscal year of the Company or
(y) five days after publication, the unaudited financial information for
such period in form and substance substantially consistent with the financial
information historically furnished to the SEC by the Company on Form 20-F
or, if not furnished to the SEC, in form and substance substantially consistent
with the financial information historically furnished via press release, for
each of the last four fiscal quarters of the Company immediately prior to the
date of this Agreement (as applicable);


 


(c)                                 maintain and
cause its Affiliates (including each Group Company) to maintain appropriate
books and records, in accordance with the requirements of all applicable laws,
and provide and cause its Affiliates (including each Group Company) to provide
Parent, at Parent’s expense, with such access as is reasonably requested by
Parent to such books of account, records, and other documents (including to
examine, audit, and take excerpts therefrom, and make photocopies thereof),
information, and personnel, and use its commercially reasonable efforts to
provide access to its independent certified public accountant, in each case to
allow Parent and its employees and accountants to perform any procedures with
respect to information and documents delivered to Parent pursuant to this
Agreement as may be reasonably requested by Parent;


 


(d)                                 at Parent’s
expense, provide all support reasonably requested by Parent to conduct all
activities related to determining the purchase price accounting in accordance
with the equity method of accounting determined in accordance with US GAAP as
applicable to Parent;


 


(e)                                 ensure that
all the consolidated financial statements of the Company are prepared in
accordance with the same system of generally accepted accounting principles
used in the Company’s SEC filings, or, if the Company has ceased making filings
with the SEC, in the same system of generally accepted accounting principles
used to meet the Company’s filing obligations in its country of domicile; and


 


(f)                                     at Parent’s
expense, (i) cooperate, and use its commercially reasonable efforts to
cause the Company’s independent certified public accountants to cooperate, with
Parent, to the extent reasonably requested by Parent, in the preparation of
Parent’s public earnings releases or other press releases, Current Reports on
Form 8-K, Annual Reports to shareholders, Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q and any other proxy,
information and registration statements, reports, notices, prospectuses and any
other filings made by Parent with the SEC, or any other governmental authority
or otherwise made publicly available (collectively, the Parent Public Filings), (ii) provide
to Parent all information that Parent reasonably requests in connection with
any Parent Public Filings or that, in the reasonable judgment of Parent or its
legal counsel, is required to be disclosed or incorporated by reference therein
under any applicable law, (iii) provide such information to enable Parent
to prepare, print and release all Parent Public Filings on a timely basis and
(iv) use its commercially 


 


9




 










 


reasonable efforts to cause the Company’s independent
certified public accountants to consent to any reference to them as experts in
any Parent Public Filings required under applicable law.


 


10.                              FEES AND COSTS


 


10.1                       Save as
explicitly provided otherwise in this Agreement or the other Transaction
Documents, or as otherwise specifically agreed in writing by the Parties after the date of this Agreement, each Party
shall pay the costs and expenses incurred by it (and, in the case of Investor,
each member of Investor’s Group and, in the case of the Company, each member of
the Company’s Group) in connection with the preparation, entering into and
completion of this Agreement.


 


11.                              CONFIDENTIALITY AND ANNOUNCEMENTS


 


11.1                       Neither Party
shall originate any publicity, news release or public statement or
announcement, written or oral, whether to the public or press, stockholders or
otherwise, relating to this Agreement, including its existence, the subject
matter to which it relates, performance under it, or any of its terms, or to
any amendment hereto, (each a Public Announcement)
without the prior written consent of the other Party, save only such Public
Announcements that are required by applicable laws or regulations (including
under the rules of any relevant stock exchange or government agency
regulating trading in securities of a Party or its parent affiliate) to be
made, which Public Announcements shall be brief and factual to the extent
permitted by applicable law.


 


11.2                       If a Party
wishes to make a Public Announcement, including as required by law or
regulation (including under the rules of any relevant stock exchange or
government agency regulating trading in securities of a Party or its parent
Affiliate), such Party shall give the other Party advance notice of at least
five (5) Business Days (or such other time as is reasonably practicable in
the circumstances) and a copy of the proposed Public Announcement, so that the
other Party may review such proposed Public Announcement and comment thereon,
including to request the removal of or protective treatment for any of its
confidential information or to correct the use of its name or trademarks. To
the extent that the other Party requests that any of its confidential
information in a proposed Public Announcement be deleted, the Party seeking to
make such announcement shall delete such confidential information, unless legal
counsel to the Party seeking to make the filing reasonably determines that such
information is required by law to be included in a required filing, in which
case such Party shall request protective treatment of such Confidential
Information to the extent such treatment would be legally permissible.


 


11.3                       Each Party
shall keep confidential all information provided to it by or on behalf of the
other Party, or otherwise obtained by or in connection with this Agreement,
which relates to the other Party’s Group or business in accordance with the
Confidentiality Agreement, dated as of March 9, 2009, between
Johnson & Johnson Pharmaceutical Services, LLC, an Affiliate of
Investor, and the Company, (the CDA) which
shall remain in effect in accordance with its terms.


 


12.                              NOTICES


 


12.1                       Any notice or
other communication to be given under this Agreement must be in writing and
must be delivered (either by courier or otherwise) or sent by post or facsimile
to the Party to whom it is to be given at its address as follows:


 


(a)                                 to Investor at:


10




 










 


***


 


with a copy
to


 


Johnson &
Johnson


One
Johnson & Johnson Plaza


New
Brunswick, NJ 08933


***


 


and


 


Johnson &
Johnson


One
Johnson & Johnson Plaza


New
Brunswick, NJ 08933


***


 


(b)                                 to the Company
at:


 


Postbus
2048, 2301CA Leiden, the Netherlands


***


 


with a copy
to


 


***


 


or
at any such other address of which it shall have given notice for this purpose
to the other parties under this Section. Any notice or other communication sent
by post shall be sent by prepaid first class post or registered mail (if the
country of destination is the same as the country of origin) or by pre-paid
airmail (if the country of destination is not the same as the country of
origin).


 


12.2                       Any notice or
other communication shall be deemed to have been given:


 


(a)                                 if delivered,
on the date of delivery; or


 


(b)                                 if sent by
facsimile, on the date of delivery, or, if that date is not a Business Day, on
the next Business Day; or


 


(c)                                 if sent by
post, on the second Business Day after it was put into the post in case of
inland post and on the fifth Business Day in the case of airmail.


 


12.3                       In proving the
giving of a notice or other communication, it shall be sufficient to prove that
delivery was made, that confirmation of facsimile transmission was received, or
that the envelope containing the communication was properly addressed and
posted by prepaid first class post or registered mail or by prepaid airmail, as
the case may be.


 


11




 










 


12.4                       This
Section shall not apply in relation to the service of any claim form,
notice, order, judgment or other document relating to or in connection with any
proceedings, suit or action arising out of or in connection with this
Agreement.


 


13.                              ASSIGNMENTS


 


13.1                       Neither Party may assign, or transfer any of its rights and/or
obligations under this Agreement without the prior written consent of the other
Party, provided that the such consent shall not be unreasonably withheld in the
event Investor and its Affiliates wish to  assign, or transfer
any of their rights and/or obligations under this Agreement to a less than 100%
Affiliate and provided the Investor and its 100% Affiliates may assign
and/or transfer all or part of their rights and obligations hereunder to any of
their respective 100% Affiliates without the consent of the Company.


 


14.                              GENERAL


 


14.1                       This Agreement
may be executed in any number of counterparts (including facsimile copies).
This has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.


 


14.2                       The rights of
each Party under this Agreement:


 


(a)                                 may be exercised as often as necessary;


 


(b)                                 are cumulative and not exclusive of rights and remedies provided by law;
and


 


(c)                                 may be waived only in writing and specifically.


 


Delay in the
exercise or non-exercise of any such right is not a waiver of that right.


 


14.3                       Except as
expressly stated in this Agreement, the terms of this Agreement may be enforced
only by a Party to this Agreement or a Party’s permitted assigns or successors.
In the event any third party stipulation (derdenbeding)
contained in this Agreement is accepted by any third party, such third party
will not become a party to this Agreement.


 


14.4                       If at any time
any provision of this Agreement is or becomes illegal, invalid or unenforceable
in any respect under the law of any jurisdiction, this shall not affect or
impair:


 


(a)                                 the legality, validity or enforceability in that jurisdiction of any
other provision of this Agreement; or


 


(b)                                 the legality, validity or enforceability under the law of any other
jurisdiction of that or any other provision of this Agreement.


 


Parties
shall use reasonable efforts to agree a replacement provision that is legal,
valid and enforceable to achieve so far as possible the intended effect of the
illegal, invalid or unenforceable provision.


 


14.5                       Nothing in
this Agreement limits or excludes any liability for fraud.


 


12




 










 


15.                              WHOLE AGREEMENT


 


15.1                       Notwithstanding
Section 11.3, this Agreement and the other Transaction Documents to which
the Company and Investor are or will be party, contain the whole agreement
between the Parties relating to the Transactions and supersede all previous
agreements, whether oral or in writing, between the Parties relating to the
Transactions. Except as required by statute, no terms shall be implied (whether
by custom, usage or otherwise) into this Agreement.


 


15.2                       Each Party
acknowledges that in agreeing to enter into this Agreement it has not relied on
any express or implied representation, warranty, collateral contract or other
assurance (except those set out in any of the Transaction Documents) made by or
on behalf of any other Party before the entering into of this Agreement. Each
Party waives all rights and remedies which, but for this Section 15.2,
might otherwise be available to it in respect of any such representation,
warranty, collateral contract or other assurance.


 


15.3                       This Agreement
may only be amended in writing and where such amendment is signed by all the
Parties.


 


16.                              NO RESCISSION


 


16.1                       The Parties
waive their rights, if any, to in whole or in part annul, rescind or dissolve
(e.g. gehele dan wel partiële ontbinding en vernietiging)
this Agreement. In the event of a breach of this Agreement by any of the
Parties, the other Party shall be entitled to claim for damages (schadevergoeding) and/or specific performance (nakoming).


 


17.                              GOVERNING LAW AND JURISDICTION


 


17.1                       This Agreement is governed by, and shall be construed
in accordance with, the laws of the Netherlands, without application of any
principle of conflict of laws that would result in reference to a different law.


 


17.2                       Unless otherwise set forth therein, any power of
attorney or other document executed in connection with this Agreement will be
governed by and construed in accordance with the laws of the Netherlands.


 


17.3                       Any controversy, dispute or
claim arising out of this Agreement, including the Schedules attached hereto,
or the interpretation, enforceability, performance, breach, termination or
validity thereof, including disputes relating to alleged breach or termination
of the foregoing (each a Dispute) shall be resolved pursuant
to this Section 17.


 


17.4                       Any Dispute shall be finally
resolved by binding arbitration in accordance with this Section 17 and the
International Institute for Conflict Prevention and Resolution Rules for
Non-Administered Arbitration of International Disputes then in effect (CPR Rules) by either a sole arbitrator in accordance with Section 17.7
below or a panel of three (3) arbitrators to be appointed in accordance
with Section 17.6 below (in each case, the Tribunal). The Netherlands Arbitration Institute (NAI) is designated as the Neutral Organization for all purposes for which
a Neutral Organization is required under the CPR Rules. For purposes of this
Section 17, International Rule 7.6 shall be deemed to be amended by
deleting in the second and third lines the words “the Tribunal and”, so that in
the event of a challenge of any arbitrator the members of the Tribunal shall as
long as is practicable remain unaware of the identity of the challenging Party.


 


13




 










 


17.5                       The arbitration shall be
conducted in the English language. The seat of the arbitration shall be
Amsterdam, the Netherlands. Except as otherwise specified in this
Section 17, the arbitrators shall decide the Dispute in accordance with
the procedural laws of the Netherlands.


 


17.6                       Subject to Section 17.8
below, the panel of three arbitrators shall be constituted as follows: One
arbitrator shall be appointed by each Party, and the third, who shall act as
chair, shall be appointed by agreement of the Parties. If the Parties are
unable to reach agreement on the third arbitrator within 60 days of the
selection of the first arbitrator, the third arbitrator will be appointed in
accordance with International Rule 6 of the CPR Rules.


 


17.7                       If after exchange of the
notice of arbitration and the notice of defense it appears that no Party has
demanded damages greater than $2 million, and that no Party has demanded
equitable relief, there shall be a sole arbitrator. Such arbitrator shall be
appointed by agreement of the Parties or, if the Parties are unable to reach
agreement on the arbitrator within 60 days of the notice of arbitration, the
arbitrator will be appointed in accordance with International Rule 6 of
the CPR Rules.


 


17.8                       All persons appointed to act
as arbitrator under this Section 17 shall be lawyers with at least fifteen
years of professional experience and shall be independent of the Parties and
impartial. Candidates for the position of chair of a three-arbitrator panel and
candidates for the position of sole arbitrator may be interviewed by
representatives of the parties in advance of their selection, provided that all
Parties are represented at each interview. A Party may privately interview
candidates for the position of arbitrator to be appointed by that Party prior
to making an appointment to that position, but shall not discuss the merits of
the Dispute with such candidate beyond providing a sufficient description of
the nature of the Dispute to permit the candidate to discuss his or her
qualifications to sit as an arbitrator. The candidates and appointed
arbitrators shall follow the IBA Guidelines on Conflicts of Interest in
International Arbitration.


 


17.9                       The arbitral tribunal shall
confer with the Parties at the outset of the arbitration to establish a
timetable for the arbitration. Absent agreement of the Parties to a longer period
of time, such timetable shall provide for hearings to commence within nine
(9) months of the date on which the Tribunal has accepted its appointment.
In addition to the CPR rules, the Parties agree that the arbitration shall be
conducted according to the IBA Rules on Taking of Evidence in
International Commercial Arbitration. At the request of any Party, the Tribunal
shall direct that a transcript be made of any hearing, and may make provision
for how the cost of such transcript shall be borne pending allocation of such
cost in the award.


 


17.10                Each party expressly waives any right it may have to a trial by jury of
any Dispute, and also expressly waives any right it may have to seek or to be
awarded punitive damages on account of any matter that is the subject of a
Dispute.


 


17.11                The Tribunal shall endeavor to prepare and submit to the parties its
award within ninety (90) days of the conclusion of the hearings and completion
of any post-hearing submissions. The award of the Tribunal may grant any relief
appropriate under the applicable law, including declaratory relief, injunctive
relief, and specific performance, but may not include any penalty or element of
punitive or exemplary damages, provided however, that the Tribunal may add to
the actual damages awarded any additional amount(s) specifically permitted
to be added by an applicable statute. Any award of money shall bear interest
from 30 days after the date mentioned in the award  at the lesser of 10% or the maximum rate
allowed under applicable law. The Tribunal may award the costs and expenses of the arbitration as
provided in the CPR Rules, but each Party shall bear its own attorneys fees.
The award of the Tribunal 


 


14




 










 


may be entered and enforced in any court of competent jurisdiction. A
court called upon to enforce such an award may require the losing Party to pay
the reasonable attorney fees and costs of the other Party.


 


17.12                Any party may seek emergency, interim or provisional relief prior to date
on which the entire Tribunal has accepted its appointment from any court of
competent jurisdiction in the Netherlands, without prejudice to the agreement
to arbitrate contained in this Section. After the date on which the entire
Tribunal has accepted its appointment, any request for such relief shall be
addressed to the arbitral Tribunal, which shall have the power to enter an
interim award granting any non-monetary emergency, interim or provisional
relief to which a Party may be entitled under applicable law.


 


17.13                The arbitration proceedings contemplated by this provision shall be as
confidential and private as is permitted by law. In furtherance thereof, the
Parties shall not disclose the existence, content or results of the Dispute or
any proceedings conducted in accordance with this Section 17 except as
herein provided. Any settlement agreement or arbitral award, and any materials
specifically prepared in connection with the arbitration or any proceedings
leading to settlement, shall not be admissible in any other proceeding.
Notwithstanding the foregoing, this confidentiality provision shall not prevent
a petition to vacate or enforce a settlement agreement or arbitral award, and
shall not bar disclosures necessary or desirable in connection therewith, nor
any disclosures required by law. Any award resulting from the proceedings
conducted pursuant to this Section 17 shall have no preclusive effect on
any matter involving third parties.


 


18.                              LANGUAGE


 


18.1                       The language
of this Agreement is English and all notices to be given in connection with
this Agreement must be in English. All demands, requests, statements,
certificates or other documents or communications to be provided in connection
with this Agreement must be in English or accompanied by a certified English
translation; in this case the English translation prevails unless the document
or communication is a statutory or other official document or communication.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


15




 










 


AS WITNESS this Agreement has
been signed by the Parties (or their duly authorised representatives) on the
date stated at the beginning of this Agreement.


 


 


	
  JHC
  NEDERLAND B.V.

  	
   

  	
  CRUCELL N.V.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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  Title:

  	
   

  	
   

  	
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  Date:

  	
   

  	
   

  	
  Date:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  JHC
  NEDERLAND B.V.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
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16




 










 


Signature Page to Shareholder
Agreement


 


17
















 


SCHEDULE 1


 


INTERPRETATION


 


1.            Terms Defined:


 


Acquirer has the meaning set forth in
Section 7.2;


 


Acquirer Expert has the
meaning set forth in Section 7.4;


 


Acquisition Price has the
meaning set forth in the definition of Anti-Dilution Acquisition Event;


 


ADS means the American Depositary
Shares of the Company;


 


Affiliate means with respect to a specified Party, any corporation, partnership, or other business or legal
entity that, directly or indirectly, controls, is controlled by, or is under
common control with such Party. The term “control” means, for purposes of this
definition, the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of an entity, whether through the
ownership of voting securities or by contract. Control will be presumed if one
entity owns, either of record or beneficially, fifty percent (50%) or more of
the capital stock or share capital entitled to vote for the election of
directors of the entity or fifty percent (50%) or more of equity or voting
interest of the entity;


 


Agreed Form means,
in relation to any document, the form of that document which has been
initialled for the purpose of identification by the Company and Investor;


 


Agreement has the meaning set forth in
the introduction of this Agreement;


 


Anti-Dilution Acquisition Event means a Change of Control under circumstances in which the Company Voting Securities
are converted into or are otherwise entitled to receive cash or other
consideration with a per share value, determined as of the date of consummation
of the Change of Control, (the amount per share so determined, the Acquisition Price), that is less than the
Issue Price (as adjusted to take into account any exchange of Ordinary Shares
for ADS or ADS for Ordinary Shares, stock
split, reverse stock split, reclassification, reorganization or other
transaction by the Company affecting the Company Voting Securities generally). In the event the Acquisition Price is denominated in a
currency other than Euros, for purposes of determining the Acquisition Price
hereunder, the applicable cash amount shall be converted into Euros at the then
prevailing exchange rate as quoted in the Financial Times on the day on which
the related Business Combination is consummated, or if such day is not a
Business Day, as quoted in the Financial Times on the immediately preceding
Business Day;


 


Antidilution Amount: means, with
respect to any Anti-Dilution
Acquisition Event, an amount equal to the product of (x) the
aggregate number of Company Voting Securities acquired upon consummation of
such Anti-Dilution Acquisition Event
(not to exceed the number of Company Voting Securities (as adjusted as adjusted to take into account any exchange of Ordinary Shares for ADS
or ADS for Ordinary Shares, stock
split, reverse stock split, reclassification, reorganization or other
transaction by the 


 


18




 










 


Company affecting the Company Voting
Securities generally)
acquired by Investor on Closing pursuant to the Equity Purchase Agreement) and (y) the amount equal to (1) the Issue Price (as adjusted to take into account any exchange of Ordinary Shares for ADS
or ADS for Ordinary Shares, stock
split, reverse stock split, reclassification, reorganization or other transaction
by the Company affecting the Company Voting Securities generally minus
(2) the applicable Acquisition Price;


 


Articles of Association means
the latest version of the Company’s articles of association;


 


Beneficially Owned or Beneficial Ownership with respect to any security means
having “beneficial ownership” of such subject security, as determined in
accordance with Rule 13d-3 under the Exchange Act, as in effect on the
date of this Agreement, including pursuant to any contract, arrangement or understanding
(whether or not in writing), any relationship or otherwise. Without duplicative
counting of the same securities by the same person, securities Beneficially
Owned by a person shall include all securities Beneficially Owned, directly or
indirectly, by such person, any of such person’s Affiliates and any other
person with which or whom such person or such person’s Affiliates would
constitute a “group” within the meaning of Rule 13d-5(b)(1) under the
Exchange Act. A Beneficial Owner of a security is a
person who has Beneficial Ownership of such security;


 


Best Price Rule has the meaning set out in
Section 7.12;


 


Business Combination Proposal means an announcement of and/or a written expression of
interest in relation to (i) a tender offer, exchange offer or other bona
fide offer to acquire, by a person or a group of persons acting in concert,
directly or indirectly, 30% or more of the issued and outstanding Company
Voting Securities (a Public Offer),
(ii) a proposal or offer for a merger or other business combination
directly or indirectly involving the Company that would result in the
acquisition, directly or indirectly, of 30% or more of the total voting power
of the Company by a person or a group of persons acting in concert or
(iii) a proposal or offer to acquire, by a person or a group of persons
acting in concert, directly or indirectly, a significant portion of the assets
of the Company (assets representing in value 30% or more of the Company’s total
assets or assets that generate 30% or more of the Company’s total revenues)
(and each of the transactions referred to in this definition will be referred
to herein as a Business Combination Transaction);


 


Business Combination Transaction has the meaning set out in the definition of Business
Combination Proposal;


 


Business Day means a day (other than a
Saturday or Sunday) on which banks are generally open in the Netherlands and
the USA for normal business;


 


CDA has the meaning set out in
Section 11.3;


 


Change of Control means
the acquisition by a person or a group of persons acting in concert, directly
or indirectly, of (i) 50% or more of the issued and outstanding Company
Voting Securities through a share purchase, tender offer, exchange offer or
other bona fide offer to acquire, (ii) 50% or more of the total voting
power of the Company by merger, business combination or otherwise or
(iii) all or substantially all of the assets of the Company, in each case
in a Business Combination Transaction fully endorsed, approved, recommended or
otherwise supported by the Company (i.e. not in a hostile bid scenario);


 


19




 










 


Closing means the issue of the Shares to
Investor in accordance with the terms of the Equity Purchase Agreement;


 


Closing Date means the date on which Closing
is effected;


 


Company has the meaning set out in the
introduction of this Agreement;


 


Company Voting Securities means,
collectively, (i) the Ordinary Shares (including Ordinary Shares
represented by ADS) and (ii) any other securities entitled to vote in the
general meeting of shareholders of the Company outstanding at the date of
determination (excluding preference shares issued to the Stichting Preferente
Aandelen Crucell);


 


Competitor means ***


 


Deed of Issue means
the deed of issue pursuant to which the Shares will be issued to Investor at
the Closing. An Agreed Form of the Deed of Issue is attached as Schedule
to the Equity Purchase Agreement;


 


ESOP means the remuneration policies
regarding employee and management options as prepared by the remuneration
committee of the Company, as adopted and amended by the relevant constituencies
from time to time, including any long term and short term incentives plans
adopted or implemented in accordance therewith;


 


Experts has the meaning set forth in
Section 7.4;


 


Equity Purchase Agreement has the
meaning set out in recital (A);


 


Exchange Act means
the U.S. Securities Exchange Act of 1934, as amended;


 


Fair Value has the meaning set forth in
Section 7.5;


 


Flu-MAb Agreement means
the Collaboration and Commercialization Agreement for Flu-MAb Product between
the Parties of the same date as this Agreement;


 


Group means in relation to any entity
or person, such entity or person and its Affiliates;


 


Group Companies means
the Company and its Subsidiaries, and Group Company means any of them;


 


Innovation Agreement means
the agreement regarding the Innovation, Development and Commercialization of
Novel Drug Products between the Parties of the same date as this Agreement;


 


Issue Price has the meaning set out in
Section 3.1 of the Equity Purchase Agreement;


 


Investor has the meaning set out in the
introduction of this Agreement;


 


Investor Expert has the
meaning set forth in Section 7.4;


 


Lock-Up has the meaning set out in
Section 4.1;


 


20




 










 


Lock-Up Period has the
meaning set out in Section 4.1;


 


Ordinary Shares means
the ordinary shares of the Company, nominal value of EUR 0.24 each. Ordinary
Shares shall also include, where the context so requires, ADS representing
Ordinary Shares;


 


Parent means Johnson &
Johnson, a New Jersey corporation;


 


Parent Public Filings has the
meaning set forth in Section 9.5(f);


 


Parties has the meaning set out in the
introduction of this Agreement;


 


Pre-emptive Right has the
meaning set out in Section 5.1;


 


Pre-emptive Rights Acceptance  Notice has the meaning set out in Section 5.1;


 


Pre-emptive Rights Notice has the
meaning set out in Section 5.1;


 


Pre-emptive Rights Period has the
meaning set out in Section 5.1;


 


Proportionate
Interest means, with respect to any shareholder, the ratio of
(a) the number of Company Voting Securities (including Company Voting
Securities represented by ADS) then Beneficially Owned by such shareholder
(after giving effect to the exercise, exchange, or conversion of all Company
securities exercisable or exchangeable for, or convertible into, Company Voting
Securities or ADS then Beneficially Owned by such shareholder) to (b) the
total number of issued and outstanding Company Voting Securities (including
Company Voting Securities represented by ADS) then owned by all shareholders
(after giving effect to the exercise, exchange, or conversion of all Company
securities exercisable or exchangeable for, or convertible into, Company Voting
Securities or ADS then Beneficially Owned by such shareholders), and excluding
for purposes of such ratio equity-based awards granted pursuant to the ESOP;


 


Public Offer has the meaning set out in the
definition of Business Combination Proposal;


 


Qualified Securities means
any Company Voting
Securities or any securities convertible into, or exercisable or exchangeable
for, or otherwise giving the holder thereof any rights in respect of, Company
Voting Securities (whether or not the right to convert, exchange, or exercise
is subject to the passage of time, contingencies, or contractual restrictions,
or any combination thereof);


 


Registration Rights Agreement has
the meaning ascribed thereto in the Equity Purchase Agreement;


 


SEC means the U.S.
Securities and Exchange Commission;


 


Shares has the meaning set out in
recital (A);


 


Standstill Period has the
meaning set out in Section 3.1;


 


Subsidiary has the meaning as set out in
article 2:24a of the Dutch Civil Code;


 


Third Bank has the meaning set forth in
Section 7.5;


 


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Transactions means
the transactions contemplated by the Transaction Documents;


 


Transaction Documents means:


 


(a)                                 this Agreement;


 


(b)                                 the Equity Purchase Agreement;


 


(c)                                 the Flu-MAb Agreement;


 


(d)                                 the Registration Rights Agreement;


 


(e)                                 the Innovation Agreement; and


 


(f)                                     the CDA;


 


Tribunal has the meaning set forth in
Section 17;


 


US GAAP means generally accepted accounting
principles and practices in the United States of America, as in effect from
time to time; and


 


Valuation has the meaning set forth in
Section 7.5.


 


2.            In this
Agreement, unless the contrary intention appears, a reference to a Section,
sub-section, paragraph, subparagraph, or Schedule is a reference to a Section,
sub-section, paragraph, subparagraph, or Schedule of or to this Agreement. The
Schedules form part of this Agreement.


 


3.            The headings
in this Agreement do not affect its interpretation.


 


4.            Any express or
implied reference to an enactment (which includes any legislation in any
jurisdiction) includes references to:


 


(a)           that
enactment as amended, extended or applied by or under any other enactment
before Closing;


 


(b)           any
enactment which that enactment re-enacts (with or without modification); and


 


(c)           any
subordinate legislation (including regulations) made (before Closing) under
that enactment, as re-enacted, amended, extended or applied as described in
paragraph (a) above, or under any enactment referred to in paragraph
(b) above.


 


5.            References to
a person shall be construed so as to include any individual, firm, company,
corporation, limited liability company, trust, unincorporated organization,
entity or division, government, governmental authority, tax authority, state or
agency of a state or any joint venture, association, partnership (whether or
not having separate legal personality).


 


6.            A claim,
proceeding, dispute, action, or other matter will only be deemed to have been
threatened if any written demand or statement has been made or any written
notice has been given.


 


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7.            An action
taken by a person will be deemed to have been taken in the ordinary course of
business only if such action is consistent with the past practices of such
person and is taken in the ordinary course of the normal day-to-day operations
of such person.


 


8.            Where any
obligation is qualified or phrased by reference to use reasonable endeavours,
best efforts or wording of a similar nature, it means the efforts that a person
desirous of achieving a result would use in similar circumstances to ensure
that such result is achieved as expeditious as possible and, regard shall be
had, among other factors, to (i) the price, financial interest and other
terms of the obligation; (ii) the degree of risk normally involved in
achieving the expected result; (iii) the ability of an unrelated person to
influence the performance of the obligation.


 


9.            The singular
shall include the plural and vice versa and references to words importing one
gender will include both genders.


 


10.          Except as
otherwise specifically set forth in this agreement to the contrary, the word
“including” will be construed as meaning as “including without limitation”.


 


11.          Notwithstanding
the Section headed “Language”, where in this Agreement a Dutch term is
given in italics or in italics and in brackets after an English term and there
is any inconsistency between the Dutch and the English, the meaning of the
Dutch term shall prevail.


 


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