AGM Information • Dec 18, 2017
AGM Information
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V010361-20171022 Registration Duty: € 50.00 Documentary Duty: € 95.00 Encl: 35 Rep. no. 13620
Limited Liability Company that makes or has made a public appeal on savings and whose shares are traded on a regulated market within the meaning of Article 4 of the Belgian Companies Code at 2800 Mechelen, Generaal de Wittelaan 11 B Register of Legal Entities Antwerp, division Mechelen, company number 0505.640.808 Registered for VAT
========================================================== Appointment of director - Issuance of "Warrants 2017" –
The year two thousand seventeen on the eleventh of September.
At the registered office of the company at Generaal de Wittelaan 11 B, 2800 Mechelen, at ten a.m.
Before me, Johan KIEBOOMS, associated notary public in Antwerp
WAS HELD:
The extraordinary shareholders' meeting of the limited liability company "BIOCARTIS GROUP", whose shares are traded on a regulated market within the meaning of Article 4 of the Belgian Companies Code, with its registered office at Generaal de Wittelaan 11 B, 2800 Mechelen, Register of Legal Entities Antwerp, division Mechelen, company number 0505.640.808, Registered for VAT.
--------------------------------------------------------------------------------------------------- Company incorporated on 24 November 2014, by deed passed before associated notary public Johan KIEBOOMS, in Antwerp, an extract of which was published in the Annexes to the Belgian Official Gazette of 26 November 2014 under number 14311262.
The articles of association were amended multiple times, and for the last time pursuant to the deed containing the acknowledgement of the realization of the capital increase within the framework of the authorized capital, as resolved by the meeting of the board of directors on 17 November 2016, passed before associated notary public Frederick VLAMINCK in Antwerp on 21 November 2016. An extract of the minutes of this meeting was published in the Annexes to the Belgian Official Gazette of 8 December 2016 under number 16168393.
The meeting is called to order under the chairmanship of the private company with limited liability "Be@dvised", with its registered office at Berchemboslaan 16, 2600 Berchem (Antwerp), Register of Legal Entities Antwerp, division Antwerp, with company number 0543.479.716, permanently represented by Mr. BERCKMOES Renaat, Gregoire Florentine, residing at Berchemboslaan 16, 2600 Berchem (Antwerp).
The chairman designates as secretary: Mr. VANDORPE Tim, Wouter, residing at Coupure 652, 9000 Ghent.
The meeting designates the following persons as tellers:
The shareholders' meeting is composed of the holders of shares and warrants issued by the limited liability company "Biocartis Group", insofar as such holders are present, as indicated on the enclosed attendance list, register and list of shareholders who have voted by mail.
An attendance list was prepared, indicating
(i) the identity of the shareholders and warrant holders who participate in the meeting,
(ii) the domicile or registered office of such shareholders and warrant holders,
(iii) if applicable, the identity of the proxy-holders of such shareholders and warrant holders and
(iv) the number of shares with which the shareholders are participating in the voting.
The attendance list also indicates which directors are present at the meeting and whether or not the statutory auditor is present. The attendance list was signed by the shareholders and warrant holders, the directors and the statutory auditor, or their proxy-holders.
In addition, a register has been prepared which includes the following information for each shareholder who has given notice of his/her/its intention to participate in the shareholders' meeting:
(i) his/her/its name and address or registered office,
(ii) the number of shares he/she/it owned on the registration date, and
(iii) a description of the documents which indicate that he/she/it owned the shares on the registration date.
The submitted records are kept in the files of the company.
A separate list has been prepared for the shareholders who have validly submitted their votes by mail in accordance with the Belgian Companies Code and the articles of association of the company, and as set out in the notice convening the shareholders' meeting.
The attendance list, the register and the list of the shareholders who have voted by mail are submitted to the bureau and are subsequently closed, initialed and signed by me, associated notary public.
The submitted proxies and votes by mail, as well as the closed attendance list, the closed register and the closed list of shareholders who voted by mail are subsequently initialed by me, associated notary public, and added as an exhibit to the minutes of the meeting.
Apart from the holders of securities issued by the company who are admitted to the meeting, a number of other persons attend the meeting, such as certain members of the staff of the company.
The aforementioned persons have signed an attendance list regarding persons who are not a holder of securities or who are a holder of securities but have not complied with the formalities to be admitted to the meeting.
The chairman opens the meeting and gives the following explanation:
I. The holders of securities issued by the company, the directors and the statutory auditor were convened to this meeting with the following agenda and proposed resolutions:
Taking into account the advice of the Remuneration and Nomination Committee, the Board of Directors recommends that Herman Verrelst, Chief Executive Officer of the Company, be appointed as director of the Company for a term up to and including the closing of the annual shareholders' meeting to be held in 2021 which will have decided upon the financial statements for the financial year ended on 31 December 2020. Herman Verrelst was appointed as Chief Executive Officer of the Company effective as of August 2017. Herman Verrelst is a seasoned executive and serial entrepreneur with a proven international commercial track-record in molecular diagnostics. Prior to joining Biocartis, Herman Verrelst held the position of vice president and general manager of the genomics and clinical applications division of Agilent Technologies, a global leader in life sciences, diagnostics and applied chemical markets. Herman Verrelst joined Agilent following Agilent's acquisition of Cartagenia, a spin-off of Katholieke Universiteit Leuven (Belgium) focused on software solutions for clinical genetics and molecular oncology, of which Herman Verrelst was CEO and founder. Prior to that, Herman Verrelst was CEO of Medicim as well as founder and CEO of DATA4s.
Herman Verrelst is appointed as director of the Company for a term up to and including the closing of the annual shareholders' meeting to be held in 2021 which will have decided upon the financial statements for the financial year ended on 31 December 2020. While Herman Verrelst's mandate as Chief Executive Officer shall be remunerated, his mandate as director shall not be remunerated.
Submission of, and discussion on:
(a) the special report of the Board of Directors prepared in accordance with Articles 583, 596 and 598 of the Belgian Companies Code in connection with the proposed issuance of 1,340,000 warrants in the framework of a warrant plan, called the "Warrant Plan 2017", and the proposal to disapply, in the interest of the Company, the preferential subscription right of the Company's shareholders for the benefit of the beneficiary under the Warrant Plan 2017, i.e. the Chief Executive Officer of the Company, Herman Verrelst; and
(b) the special report of the statutory auditor prepared in accordance with Articles 596 and 598 of the Belgian Companies Code in connection with the proposed issuance of 1,340,000 warrants in the framework of the Warrant Plan 2017 and the proposal to disapply, in the interest of the Company, the preferential subscription right of the Company's shareholders for the benefit of the beneficiary under the Warrant Plan 2017, i.e. the Chief Executive Officer of the Company, Herman Verrelst.
The extraordinary shareholders' meeting resolves to approve the issuance of 1,340,000 warrants in the framework of the Warrant Plan 2017 for the benefit of the Chief Executive Officer of the Company, Herman Verrelst, as further described and referred to in the special report of the Board of Directors referred to above. In view thereof, the extraordinary shareholders' meeting resolves as follows:
(a) Terms and conditions of the warrants:
The terms and conditions of the warrants (each a "Warrant") (including but not limited to the exercise price of the Warrants) shall be as set out in the Warrant Plan 2017 annexed to the special report of the Board of Directors referred to above, a copy of which shall remain attached to the minutes reflecting the present resolution. The Warrants shall have a term of 5 years as from the date of this resolution.
(b) Underlying shares:
Each Warrant shall entitle the holder thereof to subscribe for one new share to be issued by the Company. The new shares to be issued at the occasion of the exercise of the Warrants shall have the same rights and benefits as, and shall rank pari passu in all respects, including as to entitlement to dividends, with, the existing and outstanding shares of the Company at the moment of their issuance and will be entitled to distributions in respect of which the relevant record date or due date falls on or after the date of issuance of the new shares.
(c) Disapplication of the preferential subscription right of the existing shareholders:
The extraordinary shareholders' meeting resolves to approve the disapplication of the preferential subscription right of the existing shareholders of the Company for the benefit of the intended beneficiary of the Warrant Plan 2017, i.e. the Chief Executive Officer of the Company, Herman Verrelst, in accordance with the special report of the Board of Directors prepared in accordance with Articles 583, 596 and 598 of the Belgian Companies Code.
The extraordinary shareholders' meeting resolves, subject to, and to the extent of the exercise of Warrants, to increase the Company's share capital and to issue the relevant number of new shares issuable upon the exercise of the Warrants as provided for in the special report of the Board of Directors in connection with the Warrant Plan 2017. Subject to, and in accordance with, the provisions of the Warrant Plan 2017, upon exercise of the Warrants and issue of new shares, the aggregate amount of the exercise price of the Warrants will be allocated to the share capital of the Company. To the extent that the amount of the exercise price of the Warrants, per share to be issued upon exercise of the Warrants, would exceed the fractional value of the then existing shares of the Company existing immediately prior to the issue of the new shares concerned, a part of the exercise price, per share to be issued upon exercise of the Warrants, equal to such fractional value shall be booked as share capital, whereby the balance shall be booked as issue premium. Following the capital increase and issuance of new shares, each new and existing share shall represent the same fraction of the share capital of the Company.
(f) Issue premium:
Any issue premium that will be booked in connection with the Warrant Plan 2017 shall be accounted for on the liabilities side of the Company's balance sheet as net equity. The account on which the issue premium will be booked shall serve, like the share capital, as the guarantee for third parties and can only be reduced, save for the possibility of conversion into share capital, on the basis of a lawful resolution of the general shareholders' meeting passed in the manner required for an amendment to the Company's articles of association.
(g) Powers of attorney:
The Board of Directors is authorised to implement and execute the resolutions passed by the extraordinary shareholders' meeting in connection with the Warrants, and to take all steps and carry out all formalities that shall be required by virtue of the terms and conditions of the Warrants, the Company's articles of association and applicable law in order to issue or transfer the shares upon exercise of the Warrants. Furthermore, each of the Company's directors, acting individually, shall have the power, upon exercise of the Warrants, to proceed with the recording of (i) the capital increase and issue of new shares resulting from such exercise, (ii) the allocation of the share capital and (as applicable) the issue premium, and (iii) the amendment of the Company's articles of association in order to reflect the new share capital and number of outstanding shares following the exercise of the Warrants.
(h) Waivers:
As far as needed and applicable, the extraordinary shareholders' meeting resolves that the Warrants under the Warrant Plan 2017 as well as the other outstanding warrants granted under the currently outstanding plans shall not be considered as "variable remuneration", nor as "fixed remuneration" or "annual remuneration", pursuant to Articles 520ter, 524bis, 525 and 554 (as applicable) of the Belgian Companies Code (and equivalent or similar provisions of the Belgian Corporate Governance Code of 12 March 2009) and Provision 7.7 of the Belgian Corporate Governance Code of 12 March 2009.
(i) Approval pursuant to Article 556 of the Belgian Companies Code: The extraordinary shareholders' meeting resolves to take note, approve and ratify, as far as necessary in accordance with Article 556 of the Belgian Companies Code, all clauses included in the Warrant Plan 2017 which entail rights to third parties that have an impact on the Company's equity, or that give rise to a liability or an obligation of the Company whereby the exercise of such rights is dependent upon a public takeover bid over Company's shares or a change of control over the Company, including without limitation, the accelerated vesting mechanism in the event a public takeover bid is made on the Company's securities.
The extraordinary shareholders' meeting further grants a special power of attorney to each director of the Company, acting individually and with the power of substitution, to perform the formalities required by Article 556 of the Belgian Companies Code with respect to this resolution.
De Standaard on 9 August 2017
the Belgian Official Gazette on 9 August 2017
The convening notice was also made available on 9 August 2017 on the company's website (https://investors.biocartis.com).
The holders of registered securities, the directors and the statutory auditor were also invited in writing, thirty (30) days before the meeting. However, proof of this formality does not need to be submitted.
The copies of the pages are initialed by the members of the bureau.
With regard to compliance with the requirements of Article 533bis et seq. of the Belgian Companies Code concerning
reference is made to the aforementioned convening notices.
--------------------------------------------------------------------------------------------------- III. All holders of securities who are present or represented at this meeting have complied with the formalities for admittance to the shareholders' meeting in accordance with the company's articles of association and the Belgian Companies Code and as set out in the convening notice for the shareholders' meeting.
For this extraordinary shareholders' meeting, no requests for additional items on the agenda nor proposed resolutions with regard to the items listed on the agenda were received.
--------------------------------------------------------------------------------------------------- IV. The chairman notes that no holders of warrants issued by the
company are participating in the meeting. ---------------------------------------------------------------------------------------------------
V. The company's share capital amounts to four hundred forty-six thousand four hundred eighty-one euros and five cents (€ 446,481.05).
It is represented by forty-four million six hundred forty-eight thousand hundred and five (44,648,105) shares without nominal value, each representing the same fraction of the share capital.
The share capital has been fully and unconditionally subscribed for and is fully paid-up.
VI. Based on the attendance list it appears that: 26,813,771 shares, i.e. 60.06 % of the total number of securities with voting rights, were present or duly represented at the meeting, which is more than half of the total number of shares with voting rights.
Since at least half of the share capital is represented at this meeting, the quorum requirements of Article 558 of the Belgian Companies Code to validly deliberate and resolve have been met.
--------------------------------------------------------------------------------------------------- VII. In accordance with Articles 514, 515 and 545 of the Belgian Companies Code and the company's articles of association, no shareholder can participate in the voting at the shareholders' meeting for more voting rights than those attached to the securities with respect to which he/she/it has filed a notification at least twenty (20) days prior to the date of the shareholders' meeting in accordance with the applicable statutory provisions.
The relevant thresholds for voting rights that require notification in accordance with the aforementioned provisions are three percent (3%), five percent (5%), and multiples of five percent (5%).
For all of the shareholders present or represented and all shareholders voting by mail, it is determined that they can participate with all of the shares that they have submitted.
--------------------------------------------------------------------------------------------------- VIII. The chairman reminds the meeting that each share entitles the holder to one vote and that only the shareholders and their proxy-holders can participate in the voting.
The chairman also reminds the meeting that in order for the proposed resolution regarding item 1 of the agenda to be validly adopted, the resolution must be approved by a simple majority of the votes, and that in order for the proposed resolution regarding items 2 and 3 of the agenda to be validly adopted, the resolution must be approved by a majority of 75% of the votes.
The explanation by the chairman is acknowledged as correct by all the members present at the meeting.
In accordance with Article 540 of the Belgian Companies Code, the chairman invites the participants to ask any questions they may have about the items of the agenda.
Before giving the floor to the public present at the meeting, the chairman informs the meeting that none of the shareholders have taken advantage of the opportunity provided by Article 540 of the Belgian Companies Code to submit written questions in advance.
The chairman asks whether there are any oral questions.
The chairman then closes the debates.
The meeting then discusses the items on the agenda and, after deliberations, passes the following resolutions:
==========================================================
==========================================================
Taking into account the advice of the Remuneration and Nomination Committee, the Board of Directors recommends that Herman Verrelst, Chief Executive Officer of the Company, be appointed as director of the Company for a term up to and including the closing of the annual shareholders' meeting to be held in 2021 which will have decided upon the financial statements for the financial year ended on 31 December 2020. Herman Verrelst was appointed as Chief Executive Officer of the Company effective as of August 2017. Herman Verrelst is a seasoned executive and serial entrepreneur with a proven international commercial trackrecord in molecular diagnostics.
Prior to joining Biocartis, Herman Verrelst held the position of vice president and general manager of the genomics and clinical applications division of Agilent Technologies, a global leader in life sciences, diagnostics and applied chemical markets. Herman Verrelst joined Agilent following Agilent's acquisition of Cartagenia, a spin-off of Katholieke Universiteit Leuven (Belgium) focused on software solutions for clinical genetics and molecular oncology, of which Herman Verrelst was CEO and founder. Prior to that, Herman Verrelst was CEO of Medicim as well as founder and CEO of DATA4s.
Herman Verrelst is appointed as director of the Company for a term up to and including the closing of the annual shareholders' meeting to be held in 2021 which will have decided upon the financial statements for the financial year ended on 31 December 2020. While Herman Verrelst's mandate as Chief Executive Officer shall be remunerated, his mandate as director shall not be remunerated.
A total of 26,813,771 shares participated in the voting, being 60.06 percent of the total number of securities entitled to vote, and they are cast as follows:
Abstentions: 102,421 Votes disapproving: 4,798,092
Votes approving: 21,913,258 (82.04%)
This resolution is therefore adopted.
The following reports are presented and discussed:
(a) the special report of the Board of Directors prepared in accordance with Articles 583, 596 and 598 of the Belgian Companies Code in connection with the proposed issuance of 1,340,000 warrants in the framework of a warrant plan, called the "Warrant Plan 2017", and the proposal to disapply, in the interest of the Company, the preferential subscription right of the Company's shareholders for the benefit of the beneficiary under the Warrant Plan 2017, i.e. the Chief Executive Officer of the Company, Herman Verrelst; and
==========================================================
(b) the special report of the statutory auditor prepared in accordance with Articles 596 and 598 of the Belgian Companies Code in connection with the proposed issuance of 1,340,000 warrants in the framework of the Warrant Plan 2017 and the proposal to disapply, in the interest of the Company, the preferential subscription right of the Company's shareholders for the benefit of the beneficiary under the Warrant Plan 2017, i.e. the Chief Executive Officer of the Company, Herman Verrelst.
Since a copy of these reports was made available to all holders of shares or warrants in accordance with the requirements of Article 535 of the Belgian Companies Code, and all shareholders present or represented at the meeting acknowledge that they have received a copy and taken note of it, the chairman is released from the requirement to read it to the meeting.
==========================================================
The extraordinary shareholders' meeting resolves to approve the issuance of 1,340,000 warrants in the framework of the Warrant Plan 2017 for the benefit of the Chief Executive Officer of the Company, Herman Verrelst, as further described and referred to in the special report of the Board of Directors referred to above. In view thereof, the extraordinary shareholders' meeting resolves as follows:
A copy of the Warrant Plan 2017 is included in the document entitled "ENCLOSURE – Warrant Plan 2017" which, after having been signed and dated by the members of the bureau and those shareholders who wish to do so, was signed by the acting notary public for "Ne Varietur" and attached to these minutes to become an integral part of them.
In view thereof, the extraordinary shareholders' meeting resolves as follows:
The terms and conditions of the warrants (each a "Warrant") (including but not limited to the exercise price of the Warrants) shall be as set out in the Warrant Plan 2017 annexed to the special report of the Board of Directors referred to above, a copy of which shall remain attached to the minutes reflecting the present resolution.
The Warrants shall have a term of 5 years as from the date of this resolution.
Each Warrant shall entitle the holder thereof to subscribe for one new share to be issued by the Company. The new shares to be issued at the occasion of the exercise of the Warrants shall have the same rights and benefits as, and shall rank pari passu in all respects, including as to entitlement to dividends, with, the existing and outstanding shares of the Company at the moment of their issuance and will be entitled to distributions in respect of which the relevant record date or due date falls on or after the date of issuance of the new shares.
The extraordinary shareholders' meeting resolves to approve the disapplication of the preferential subscription right of the existing shareholders of the Company for the benefit of the intended beneficiary of the Warrant Plan 2017, i.e. the Chief Executive Officer of the Company, Herman Verrelst, in accordance with the special report of the Board of Directors prepared in accordance with Articles 583, 596 and 598 of the Belgian Companies Code.
The Warrants can only be offered and granted to, and subscribed for by, Herman Verrelst.
The extraordinary shareholders' meeting resolves, subject to, and to the extent of the exercise of Warrants, to increase the Company's share capital and to issue the relevant number of new shares issuable upon the exercise of the Warrants as provided for in the special report of the Board of Directors in connection with the Warrant Plan 2017. Subject to, and in accordance with, the provisions of the Warrant Plan 2017, upon exercise of the Warrants and issue of new shares, the aggregate amount of the exercise price of the Warrants will be allocated to the share capital of the Company. To the extent that the amount of the exercise price of the Warrants, per share to be issued upon exercise of the Warrants, would exceed the fractional value of the then existing shares of the Company existing immediately prior to the issue of the new shares concerned, a part of the exercise price, per share to be issued upon exercise of the Warrants, equal to such fractional value shall be booked as share capital, whereby the balance shall be booked as issue premium. Following the capital increase and issuance of new shares, each new and existing share shall represent the same fraction of the share capital of the Company.
Any issue premium that will be booked in connection with the Warrant Plan 2017 shall be accounted for on the liabilities side of the Company's balance sheet as net equity. The account on which the issue premium will be booked shall serve, like the share capital, as the guarantee for third parties and can only be reduced, save for the possibility of conversion into share capital, on the basis of a lawful resolution of the general shareholders' meeting passed in the manner required for an amendment to the Company's articles of association.
The Board of Directors is authorised to implement and execute the resolutions passed by the extraordinary shareholders' meeting in connection with the Warrants, and to take all steps and carry out all formalities that shall be required by virtue of the terms and conditions of the Warrants, the Company's articles of association and applicable law in order to issue or transfer the shares upon exercise of the Warrants. Furthermore, each of the Company's directors, acting individually, shall have the power, upon exercise of the Warrants, to proceed with the recording of (i) the capital increase and issue of new shares resulting from such exercise, (ii) the allocation of the share capital and (as applicable) the issue premium, and (iii) the amendment of the Company's articles of association in order to reflect the new share capital and number of outstanding shares following the exercise of the Warrants.
As far as needed and applicable, the extraordinary shareholders' meeting resolves that the Warrants under the Warrant Plan 2017 as well as the other outstanding warrants granted under the currently outstanding plans shall not be considered as "variable remuneration", nor as "fixed remuneration" or "annual remuneration", pursuant to Articles 520ter, 524bis, 525 and 554 (as applicable) of the Belgian Companies Code (and equivalent or similar provisions of the Belgian Corporate Governance Code of 12 March 2009) and Provision 7.7 of the Belgian Corporate Governance Code of 12 March 2009.
The extraordinary shareholders' meeting resolves to take note, approve and ratify, as far as necessary in accordance with Article 556 of the Belgian Companies Code, all clauses included in the Warrant Plan 2017 which entail rights to third parties that have an impact on the Company's equity, or that give rise to a liability or an obligation of the Company whereby the exercise of such rights is dependent upon a public takeover bid over Company's shares or a change of control over the Company, including without limitation, the accelerated vesting mechanism in the event a public takeover bid is made on the Company's securities.
The extraordinary shareholders' meeting further grants a special power of attorney to each director of the Company, acting individually and with the power of substitution, to perform the formalities required by Article 556 of the Belgian Companies Code with respect to this resolution.
A total of 26,813,771 shares participated in the voting, being 60.06 percent of the total number of securities entitled to vote, and they are cast as follows:
Abstentions: 0
Votes disapproving: 1,395,108
Votes approving: 25,418,663 (94.80%)
This resolution is therefore adopted. ==========================================================
========================================================== To the extent necessary, special power of attorney with the power of substitution is granted to Ms. Marie VAN DEN BRANDE and Mr. Kristoff COX, choosing as their address for service the professional partnership with the legal form of a cooperative company with limited liability "Baker & McKenzie", with its registered office at Louizalaan 149, 1050 Brussels, Brussels Register of Legal Entities, company number 0426.100.511, registered for VAT, who are authorized to act individually in order to perform all the formalities required to request changes in the record in the register of legal entities and, to the extent necessary, from the competent VAT authorities.
The persons appearing acknowledge that they have been informed by the undersigned associated notary public, custodian of the original instrument, that each party is free to appoint another notary public or to be assisted by counsel, in particular in the event of conflicting interests or unbalanced terms.
The undersigned associate notary public confirms that he has verified, on the basis of the documents required by the Act Establishing the Notarial Profession, the identities of the members of the bureau and of the shareholders or their representatives who requested to sign this record.
The documentary duty amounts to ninety-five euros (€ 95.00).
As the agenda has been dealt with in full, the chairman adjourns the meeting at eleven a.m.
Prepared and executed in Mechelen on the aforementioned date. After this document had been read out in full and explained, the members of the bureau and the shareholders, or their representatives, who wished to do so signed it together with me, associated notary.
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