Regulatory Filings • Dec 8, 2020
Regulatory Filings
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MITHRA PHARMACEUTICALS Limited Liability Company
Rue Saint-Georges 5 4000 Liège Belgium
Registered with the Register of Legal Persons VAT BE 0466.526.646 (RLP Liège, division Liège)
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This report has been prepared by the board of directors of Mithra Pharmaceuticals SA (the "Company") in accordance with Article 7:198 juncto Articles 7:180 and 7:191 of the Belgian Companies and Associations Code (as amended from time to time) (the "Companies and Associations Code"). It refers to the proposal of the board of directors to issue, in the framework of the authorised capital of the Company, senior unsecured convertible bonds due 2025 for an aggregate principal amount of maximum EUR 150 million (the "Convertible Bonds"), and to disapply, in the interest of the Company, the statutory preferential subscription right of the Company's existing shareholders and, in so far as required, the Company's existing holders of subscription rights (share options), in connection with the contemplated issuance of the Convertible Bonds, which are to be offered via a private placement, through an accelerated bookbuilding procedure, to a broad group of currently unidentified institutional, qualified, professional and/or other investors (including, subject to applicable securities law rules and regulations, natural persons), in and outside of Belgium, but outside of the United States, on the basis of applicable private placement exemptions, and it being understood that the Convertible Bonds are not intended to be offered, sold or otherwise made available to, and should not be offered, sold or otherwise made available to, any consumer within the meaning of the Belgian code of economic law, as amended (the "Transaction"). The minimum amount to be invested per investor will be at least EUR 100,000 and the Convertible Bonds may only be held in "X" accounts in the "X/N" system of the National Bank of Belgium.
In accordance with Article 7:198 juncto Article 7:180 of the Belgian Companies and Associations Code, the board of directors provides in this report a justification of the proposed Transaction, as well as a justification of the proposed conversion price and a description of the consequences of the proposed Transaction for the financial and shareholder rights of the shareholders of the Company.
In accordance with Article 7:198 juncto Article 7:191 of the Belgian Companies and Associations Code, the board of directors also provides in this report a justification of the proposed disapplication of the statutory preferential subscription right of the existing shareholders and, in so far as required, of the Company's existing holders of subscription rights (share options), in connection with the contemplated issuance of the Convertible Bonds, and a description of the consequences of the Transaction for the financial and shareholder rights of the shareholders. The board of directors notes in particular that the statutory preferential subscription right is not disapplied in favour of one or more specified persons within the meaning of Article 7:193 of the Belgian Companies and Associations Code.
This report must be read together with the report prepared in accordance with Article 7:198 juncto Articles 7:180 and 7:191 of the Belgian Companies and Associations Code by the Company's statutory auditor, BDO Réviseurs d'Entreprises SCRL, a cooperative company with limited liability organised and existing under the laws of Belgium, with registered office at Rue Waucomont 51, 4651 Battice, Belgium, represented by Mr. Cédric Antonelli.
By virtue of the resolution of the extraordinary general shareholders' meeting of the Company held on 29 November 2019, as published by excerpt in the Annexes to the Belgian Official Gazette of 30 December 2019 under number 19168869, the board of directors of the Company has been granted certain powers to increase the Company's share capital in the framework of the authorised capital. The powers under the authorised capital have been set out in Article 7 of the Company's Articles of Association.
In the framework of this authorisation granted by the extraordinary general shareholders' meeting, the board of directors has been authorised to increase, in one or more transactions, the share capital of the Company within the limits provided by law, in particular by issuing convertible bonds and subscription rights, with a maximum amount of EUR 17,597,657.00 (excluding issue premium, as the case may be). The board of directors is specifically authorised to use this authorisation for the following transactions:
The capital increases that can be effected according to the aforementioned authorisation may take any form whatsoever, in particular contributions in cash or in kind, with or without issue premium, and also by incorporation of reserves and/or issue premiums and/or profits carried forward, to the extent permitted by law.
The aforementioned authorisation is valid for a period of three (3) years as of the date of the publication of the relevant resolution of the extraordinary general shareholders' meeting in the Annexes to the Belgian Official Gazette, i.e., starting on 30 December 2019 and until 30 December 2022.
So far, the board of directors has used its powers under the (renewed) authorised capital:
on 20 December 2019 by the issuing 1,444,250 new shares for an aggregate amount of EUR 1,057,331.07 (excluding issue premium);
As a result, the board of directors still has the authority under the authorised capital to increase the share capital of the Company with an aggregate amount of EUR 13,918,784.18.
In accordance with the Company's Articles of Association, the board of directors contemplates launching an offering of Convertible Bonds for an aggregate principal amount of maximum EUR 150 million. The Convertible Bonds are intended to be convertible into new and/or existing shares of the Company, and will be issued in the framework of the authorised capital of the Company in accordance with Article 7 of the Company's Articles of Association. Each Convertible Bond will have a principal amount of EUR 100,000.
The Convertible Bonds will be offered by means of a private placement through an accelerated bookbuilding procedure, as further elaborated on below in section 4. If not all of the Convertible Bonds are fully subscribed for, the Transaction can nevertheless be completed for up to all or part of the subscriptions that the Company will have received and accepted, at the applicable final terms and issuance price as determined as set forth below, and provided that the board of directors, or the placement committee that shall be established by the board of directors (the "Placement Committee"), so decides. The board of directors or Placement Committee will also have the power to offer initially only a portion of the Convertible Bonds for an aggregate principal amount that is less than the aforementioned maximum amount.
Even if all Convertible Bonds are fully subscribed for, the Transaction may eventually be completed by issuing less Convertible Bonds than the number of subscriptions received by the Company at the applicable issuance price as determined as set forth below and provided that the board of directors or the Placement Committee so decides. The board of directors or Placement Committee may, for the avoidance of doubt, also decide not to complete the contemplated Transaction, even if all or part of the Convertible Bonds are subscribed for.
The subscription period shall start at the earliest on the day of the board meeting approving the contemplated Transaction and shall end at the latest on 26 February 2021. The board of directors or the Placement Committee is, however, authorised to issue Convertible Bonds at any time during the subscription period up to the number of subscriptions that the Company will already have received at that time. The board of directors or the Placement Committee is also authorised to lengthen or shorten the subscription period and/or to prematurely end the subscription period, at its sole discretion, even if the Convertible Bonds have not or only partially been subscribed for.
The proposed terms and conditions of the Convertible Bonds (the "Conditions") are set out in Annex A to this report. The proposed main features can be summarised, for information purposes, as follows:
As set out in paragraph (h) above, it should be noted that certain provisions of the Conditions shall be submitted to the special general shareholders' meeting of the Company for approval in accordance with the provisions of Article 7:151 of the Belgian Companies and Associations Code. For further information on this requirement, reference can be made to the Conditions.
For the purposes of the placement of the Convertible Bonds and the determination of their terms, the Company has engaged and shall instruct Joh. Berenberg, Gossler & Co. KG ("Berenberg") as Sole Global Coordinator and Berenberg and Belfius Bank NV/SA, acting together with its subcontractor Kepler Cheuvreux S.A. ("Belfius", and together with Berenberg, the "Joint Bookrunners") as Joint Bookrunners to proceed with a so-called accelerated bookbuilding procedure with a broad group of currently unidentified institutional, qualified, professional and/or other investors (including, subject to applicable securities law rules and regulations, natural persons), in and outside of Belgium, but outside of the United States, on the basis of applicable private placement exemptions, and it being understood that the Convertible Bonds are not intended to be offered, sold or otherwise made available to, and should not be offered, sold or otherwise made available to, any consumer within the meaning of the Belgian code of economic law, as amended, that are to be contacted by the Joint Bookrunners during the subscription period in order to solicit their interest to subscribe for the Convertible Bonds to be issued by the Company in the framework of the Transaction. Within this procedure, the aforementioned investors will be able to indicate to the Joint Bookrunners their interest to subscribe for the Convertible Bonds, as well as the main terms (including notably the interest and conversion price) for such subscription. On the basis of this process and taking into account the demand and interest of the aforementioned investors, the final terms of the Convertible Bonds, including the interest and conversion price, will be determined.
In order to allow the Joint Bookrunners to proceed with the placement of the Convertible Bonds as aforementioned, the board of directors proposes to disapply the preferential subscription right of the Company's existing shareholders and, in so far as required, the Company's existing holders of subscription rights (share options) in accordance with Article 7:198 juncto Article 7:191 of the Belgian Companies and Associations Code.
No investors have received, nor will receive, any commitment or undertaking from the Company or the Joint Bookrunners as regards allocation of the Convertible Bonds before the closing of the bookbuilding.
The board of directors believes that the Transaction is in the interest of the Company because the Transaction, if completed, will allow the Company to raise additional funds which will strengthen the Company's balance sheet, diversify its sources of financing and pro-actively optimize its capital structure. Notably, the Company intends to use the net proceeds of the issuance of the Convertibles Bonds primarily (i) to support the ramp-up of expenses related to the Phase III study of the new generation hormone treatment Donesta® and the postauthorization safety study (PASS) of the Estelle® contraceptive treatment, (ii) to fund working capital needs, such as purchases of active pharmaceutical ingredients (API) and excipients for the safety stock of the Myring™ hormonal contraceptive ring and Estelle® oral contraceptive pill, (iii) to finance (post-M&A) earnout obligations in 2021 to former shareholders of Uteron Pharma due to the Company reaching a certain level of cash, and (iv) for the further funding of the R&D pipeline, such as hypoxic ischemic encephalopathy (HIE), wound healing and COVID-19 research, as well as for other general corporate purposes.
As further reflected below, the proposed Transaction may also allow the Company to further strengthen its image with investors and attract a new type of investors interested in equity linked debt instruments, both on a national and an international level, which may be in the interest of the future development of the Company's activities and any future capital markets transactions.
It should also be noted that if and to the extent the Convertible Bonds are ultimately converted into new shares of the Company, the Company will be able to convert the debt represented by the Convertible Bonds into share capital and issue premium (as the case may be), and thus reinforce its net equity position, both from a financial and accounting perspective. This, in turn, will then also improve the liquidity of the Company's shares as traded on Euronext Brussels at that time.
The Transaction would be in addition to other measures that the Company has put in place in order to improve the net equity position and working capital of the Company, and, hence, to support its going concern, and notably (i) the conclusion of a capital commitment agreement for an aggregate amount of up to EUR 50,000,000 for a maximum of three years that the Company obtained from LDA Capital (as defined below) pursuant to the Put Option Agreement (as defined below) with LDA Capital that was announced on 24 April 2020, (ii) the conclusion of an additional18-month loan for an amount up to EUR 20,000,000, and iii) the completion of a private placement of new shares on 23 June 2020 for a total amount of EUR 65 million (including issue premium).
The initial conversion price of the Convertible Bonds shall be determined by the board of directors of the Company or the Placement Committee, following the accelerated bookbuilding procedure that will be carried out by the Joint Bookrunners (see section 4 above). This should allow the Company to determine an initial conversion through a competitive and at arm's length process with relevant investors.
It is currently expected that the conversion price of the Convertible Bonds will include a premium, usually ranging from 10% to 30% (but exceptions exist) to the volume-weighted average price of the shares of the Company trading on Euronext Brussels calculated over the period of time beginning from the start of trading on the day of the launch of the Transaction and ending at market closing on the same date. Depending on the accelerated bookbuilding procedure, the conversion price of the Convertible Bonds may, however, include a lower or higher premium. In addition, it is also possible that the volume-weighted average price of the shares of the Company trading on Euronext Brussels calculated over the period of time beginning from the start of trading on the day of the launch of the Transaction and ending at market closing on the same date, may be lower or higher than the closing price of the Company's shares used as reference for this report.
It should also be noted that the Company reserves the right to effect certain transactions with respect to the share capital or similar transactions. In that event, however, the conversion price may need to be adjusted and reduced based on specific formulas included in antidilution protection mechanisms customary in the euromarket and set forth in the Conditions. These formulas are described in detail in the Conditions. For example, a distribution of dividends or a capital increase with issuance of new shares can result in a downward adjustment of the conversion price as further described in the Conditions. These adjustment mechanisms are customary for securities of the type of the Convertible Bonds. They are also consistent with the principle set forth in Article 7:66 of the Belgian Companies and Associations Code.
Therefore, in view of all the foregoing, the board of directors believes that the mechanism for determining and adjusting the conversion price can be sufficiently justified.
The board of directors proposes to proceed with the contemplated issuance of Convertible Bonds of the Company in the framework of the authorised capital. The board of directors hence proposes to disapply the preferential subscription right of the existing shareholders and, in so far as required, the existing holders of subscription rights (share options) in connection with the contemplated Transaction.
This disapplication of the preferential subscription right of the existing shareholders and, in so far as required, the existing holders of subscription rights (share options), allows the Joint Bookrunners to offer the newly issued Convertible Bonds directly to a broad group of
currently unidentified institutional, qualified, professional and/or other investors (including, subject to applicable securities law rules and regulations, natural persons), in and outside of Belgium, but outside of the United States, on the basis of applicable private placement exemptions, and it being understood that the Convertible Bonds are not intended to be offered, sold or otherwise made available to, and should not be offered, sold or otherwise made available to, any consumer within the meaning of the Belgian code of economic law, as amended, that are to be contacted by the Joint Bookrunners during the subscription period in order to solicit their interest to subscribe for the Convertible Bonds.
Firstly, this allows the Company to raise a significant amount of funds through an accelerated process in order to further finance its activities, as aforementioned. If the Transaction is successful, the Company would be able to use the net proceeds of the contemplated Transaction for these activities.
Secondly, this may allow the Company to further strengthen its image with investors and attract a new type of investors, both on a national and an international level. This may be in the interest of the further development of the Company's activities and future fund raisings via the capital markets.
Thirdly, the conversion, as the case may be, of the Convertible Bonds will allow the Company to reinforce its net equity position, both from a financial and accounting perspective, which in turn may also improve the liquidity of the Company's shares as traded on the regulated market of Euronext Brussels. This is in the interest of both the existing shareholders and the Company for the purposes of future capital markets transactions.
Fourthly, taking into account the Company's experience at the occasion of the initial public offering completed in 2015 and the private placements realised in 2017, 2018 and 2020, the board of directors is not in favour of proceeding with fund raising by means of a public offering at this stage, but rather through a private placement. A public offering is not only very costly for the Company, it also requires a considerably longer preparation, as a result of which the Company could miss a potential window of opportunity which according to the Company's financial advisors currently exists to attract additional funds on the capital markets. It is indeed uncertain that such a window of opportunity would still exist in the near future. The private placement, hence, allows the Company to raise new funds in a fast and cost efficient manner.
Finally, the Convertible Bonds are a finance instrument mainly intended for institutional or professional investors, and are less appropriate for retail investors. For example, the Convertible Bonds require a minimum investment of EUR 100,000 per investor. In addition, while the Convertible Bonds will be accepted by the National Bank of Belgium for clearing through the NBB-SSS, the securities settlement system operated by the National Bank of Belgium, their circulation is limited to X-Accounts only in the NBB-SSS. Also, as abovementioned, the Convertible Bonds are not intended to be offered, sold or otherwise made available to, and should not be offered, sold or otherwise made available to, any consumer within the meaning of the Belgian code of economic law, as amended.
For all of the above reasons, the board of directors is of the opinion that the contemplated issuance of Convertible Bonds, even with disapplication of the preferential subscription right, is in the interest of both the Company and the existing shareholders and holders of subscription rights (share options), as this will allow the Company to swiftly and costefficiently attract the new funds that are necessary to further implement its strategy.
The following paragraphs provide an overview of certain financial consequences of the proposed Transaction. For further information with regard to the financial consequences of the proposed Transaction, reference is also made to the report prepared in accordance with Article 7:198 juncto Articles 7:180 7:191 of the Belgian Companies and Associations Code by the statutory auditor of the Company, BDO Réviseurs d'Entreprises SCRL.
The actual financial consequences resulting from the proposed Transaction cannot yet be precisely determined, given that the key financial parameters of the offering such as the actual number of Convertible Bonds to be issued, the applicable interest rate and the conversion price are unknown as at the date of this report, and will not be known until after the completion of the offering of the new Convertible Bonds and the bookbuilding procedure. Furthermore, once started, and depending on the circumstances, the offering could still be postponed or cancelled.
Accordingly, the discussion herein of the financial consequences of the contemplated Transaction for existing shareholders is purely illustrative and hypothetical, and is based on purely indicative financial parameters (where relevant). The number of Convertible Bonds to be issued in connection with the Transaction and their conversion price may vary significantly from the hypothetical values used in this report.
Subject to the foregoing, for the purposes of the illustration of some of the financial consequences of the Transaction and notably the dilution for the shareholders, the following parameters and assumptions were used:
In this report, when reference is made to any "outstanding" Share Options, this refers to, respectively, Share Options that have not yet been granted but can still be granted and (depending on the terms and conditions of such Share Options and, as the case may be, the decisions taken by the board of directors and/or the general shareholders' meeting of the Company) have not yet expired, and Share Options that have already been granted and (depending on the terms and conditions of such Share Options) have not yet expired. With respect to the 2018 Share Options, the number of outstanding Share Options mentioned above takes into account the decision taken by the board of directors of the Company on 20 November 2020 to no longer grant 390,717 2018 Share Options.
For the purpose of the full-dilution scenario calculations below, it is assumed that all of the outstanding Share Options have become exercisable and exercised. On that basis, if all Share Options were exercised, 2,808,617 new shares would need to be issued by the Company.
(f) On 23 April 2020, the Company, LDA Capital Limited ("LDA Capital"), LDA Capital, LLC, and three existing shareholders of the Company (i.e., François Fornieri, Alychlo NV and Noshaq SA) (the "Share Lending Shareholders") entered into a Put Option Agreement (the "Put Option Agreement").
Pursuant to the Put Option Agreement, LDA Capital agreed to commit an amount of up to EUR 50,000,000 (the "Commitment Amount") in cash within a maximum of three years in exchange for new ordinary shares in the Company. This amount will be released, based on drawdowns by the Company in the form of put options that the Company has the right to exercise at its sole discretion (via so-called "put option notices"). The Company is entitled to issue a put option notice to LDA Capital on any trading day during a time period commencing on 23 April 2020 and expiring on the earlier of (i) 23 April 2023 and (ii) the date on which LDA Capital has subscribed and paid the subscription price for shares of the Company for an aggregate amount of EUR 50,000,000 pursuant to the Put Option Agreement (the "Commitment Period").
Each time when the Company issues a put option notice to LDA Capital requiring LDA Capital to subscribe for new shares, the number of new shares to be issued to, and to be subscribed for by, LDA Capital will be indicated in the put option notice (which number may be different in each put option notice). In accordance with the terms of the Put Option Agreement, the number of new shares indicated in each put option notice will be determined (amongst other things) in function of the average daily trading volume during the 15 trading days immediately preceding the date of the relevant put option notice.
Each time when the Company issues a put option notice, the new shares will be issued at a subscription price that will be equal to 90% of the average of the volume weighted average trading price of the Company's shares on the principal trading market for such shares (being on the date of this report the regulated market of Euronext Brussels) during a period of 30 trading days following the notice date of the relevant Put Option Notice (the so-called "pricing period") (it being understood that the Put Option Agreement provides that the relevant pricing period for the first put option exercise will be 45 trading days), subject to the adjustments provided for in Put Option Agreement. The minimum subscription price of the new shares shall not be lower than EUR 19.50, unless otherwise agreed by LDA Capital and the Company (subject to the adjustment mechanism set out in the Put Option Agreement).
On 29 May 2020, the Company issued its first put option notice to LDA Capital pursuant to which LDA Capital subscribed for a total of 159,800 shares at a subscription price of EUR 19.43 per share, for a total subscription price of EUR 3,104,869 (including issue premium). The shares were issued on 5 August 2020. As a result, the remaining Commitment Amount is EUR 46,895,131.
For the purpose of illustrating the dilutive effects below, it is assumed that the remaining Commitment Amount (i.e. EUR 46,895,131) is invested in full by LDA Capital at the same subscription price per share as the conversion price of the Convertible Bonds (as set out above).
(g) As part of the Put Option Agreement, on 22 July 2020, the Company issued subscription rights to LDA Capital for up to 690,000 new ordinary shares of the Company at an exercise price of EUR 27.00 per ordinary share (subject to customary adjustments) (the "LDA Warrants"). For the purpose of illustrating the dilutive effects below, it is assumed that all of the LDA Warrants have become fully exercisable, and have been validly exercised by LDA Capital at an exercise price of EUR 27.00 per new share. On that basis, if all 690,000 LDA Warrants were exercised, 690,000 new shares would need to be issued by the Company.
It should be noted that the conditions of the LDA Warrants contain anti-dilutive mechanisms under which the exercise price of the LDA Warrants will be adjusted and reduced on the basis of specific formulas in the context of certain capital-related or similar transactions. Depending on its final terms and conditions, the Transaction may constitute one of those transactions that may result in a downward adjustment to the exercise price of the LDA Warrants. However, if the Convertible Bonds are issued with an initial conversion price higher than the Company's share price, which will theoretically probably be the case, the anti-dilution mechanisms included in the conditions of the LDA Warrants will not be triggered. If the exercise price of the LDA Warrants is adjusted, the number of shares that may be issued upon exercise of the LDA Warrants will be increased proportionately, so that after the adjustment, the total exercise price payable for the increased number of shares will be the same as before the adjustment. These adjustment mechanisms are similar to those included in the Conditions of the Convertible Bonds. For the purposes of the simulations below, it is assumed that such adjustments will not be triggered by the issuance of the Convertible Bonds. However, if the anti-dilutive mechanisms are triggered, the dilutive effects for existing shareholders and holders of Share Options will be greater.
(h) Pursuant to the Put Option Agreement, the respective Share Lending Shareholders agreed to provide to LDA Capital a share lending facility (the "Share Lending Facility"). The Share Lending Facility allows LDA Capital to hedge its risks against the amount that it has to pay-up pursuant to the exercise of put options. In consideration of the willingness of the respective Share Lending Shareholders to
provide the Share Lending Facility, on 7 September 2020, the Company has issued to the Share Lending Shareholders a number of subscription rights, exercisable for a maximum number of 300,000 new shares of the Company, at an exercise price of EUR 27.00 per ordinary share (the "Share Lending Warrants"). For the purpose of illustrating the dilutive effects below, it is assumed that all of the Share Lending Warrants, have become fully exercisable, and have been validly exercised by the respective Share Lending Shareholders at an exercise price of EUR 27.00 per new share. It to be noted that only a maximum number of 300,000 Share Lending Warrants can be exercised. On that basis, if all 300,000 Share Lending Warrants were exercised, 300,000 new shares would need to be issued by the Company.
The conditions of the Share Lending Warrants contain the same anti-dilution mechanisms as those included in the conditions of the LDA Warrants (see paragraph (g) above). For the purposes of the simulations below, it is assumed that such adjustments will not be triggered by the issuance of the Convertible Bonds. However, if the anti-dilutive mechanisms are triggered, the dilutive effects for existing shareholders and holders of Share Options will be greater.
(i) Upon issuance of new shares pursuant to the Put Option Agreement, the amount of the subscription price of the relevant new shares will be allocated to the accounting net equity (in the form of share capital, and issue premium). Likewise, upon issuance of new shares pursuant to the exercise of the LDA Warrants, the Share Lending Warrants, and the Share Options, the relevant exercise price will be allocated to the accounting net equity (in the form of share capital, and issue premium). The amount that will be booked as share capital shall, per share, be equal to the amount of the fractional value of the Company's shares (currently amounting to rounded EUR 0.7321 per share). The balance will be booked as issue premium.
In this report, when reference is made to "outstanding dilutive instruments", it refers to, respectively, the issuance of new shares to LDA pursuant to the Put Option Agreement, the exercise of the LDA Warrants, the exercise of the Share Lending Warrants and the exercise of outstanding Share Options.
The question whether new shares will be issued pursuant to the Put Option Agreement will ultimately depend on a decision still to be taken by the Company to exercise the put option mechanism. Whether the Company may exercise the put option mechanism will depend on several factors including the financing needs of the Company at that time, and whether there are other financial means available to the Company.
The question whether the Share Options, the LDA Warrants and Share Lending Warrants will be effectively exercised will ultimately depend on the decision of the respective holders of the warrants. Such decision will likely be in function of the market price of the shares of the Company at the moment of exercise compared to the exercise price of the warrants. The holder of a warrant could amongst other things realise a capital gain at the time of exercise of the warrants if the market price of the shares of the Company at that moment is higher than the exercise price of the warrants, and if the shares can be sold at such price on the market. As a result LDA Capital and the holders of the Share Lending Warrants will likely not exercise the respective LDA Warrants and Share Lending Warrants if the market price of the shares of the Company is less than EUR 27.00 per share. The same consideration applies, mutatis mutandis, to the exercise of the outstanding Share Options. In view of the foregoing, it is not yet certain whether ultimately the Convertible Bonds will be converted. On the other hand, if the Convertible Bonds are converted into new shares, this will entail a financial dilution of the existing shareholders, as the basis assumption is that a holder of Convertible Bonds will only convert if the conversion price is lower than the prevailing market price of the shares at the time of conversion.
Upon conversion of the Convertible Bonds into new shares, the Company will have to issue new shares, and the share capital of the Company will be increased. Per Convertible Bond, a number of shares will need to be issued that shall be equal to the fraction, the numerator of which is equal to the principal amount of the Convertible Bond (i.e., EUR 100,000) and the denominator of which is equal to the then applicable conversion price (see also section 3.2(f) of this report). The aggregate amount of the conversion price of the Convertible Bonds consisting of the aggregate number of shares to be issued upon conversion of a Convertible Bond, multiplied by the then applicable conversion price of the Convertible Bonds, will be allocated to the net equity of the Company. To the extent that the amount of the conversion price of the Convertible Bonds, per share to be issued upon conversion of the Convertible Bonds, would exceed the fractional value of the shares of the Company existing immediately prior to the issue of the new shares concerned, a part of the conversion price per share to be issued upon conversion of the Convertible Bonds equal to such fractional value shall be booked as share capital, whereby the balance shall be booked as issue premium (as the case may be). The issue premiums, as the case may be, shall be accounted for on the liabilities side of the Company's balance sheet as net equity. The account on which the issue premium, as the case may be, shall be booked shall, like the share capital, serve as the guarantee for third parties and can only be reduced 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 above mechanism is further illustrated in section 8.3 below. It should be noted that upon conversion of Convertible Bonds, the Company can also deliver to the relevant holders of Convertible Bonds existing shares (to the extent available at that time), instead of issuing new shares. In the summary and illustration set out below in this section 8, it is assumed that only new shares are issued upon conversion of the Convertible Bonds. If existing shares would be delivered, the effects would be different.
The Conditions contain specific provisions to deal with rounding if a portion of the principal amount of a Convertible Bond cannot be converted into a whole share.
Each share in the Company currently represents an equal part of the share capital of the Company and provides for one vote in function of the part of the capital it represents. The issuance of new shares upon conversion of the Convertible Bonds will lead to a dilution of the existing shareholders of the Company and of the relative voting power of each share in the Company, and this dilution will be lower the higher the conversion price (or, higher the lower the conversion price, respectively).
The dilution relating to the voting right, also applies, mutatis mutandis, to the participation of each share in the profit and liquidation proceeds and other rights attached to the shares of the Company, such as the statutory preferential subscription right in case of a capital increase in cash through the issuance of new shares or in case of the issuance of new subscription rights or convertible bonds.
Specifically, prior to the conversion of the Convertible Bonds (and prior to the issue of new shares under other outstanding dilutive instruments), each share of the Company participates equally in the profit and liquidation proceeds of the Company and each shareholder has a statutory preferential subscription right in case of a capital increase in cash or in case of the issuance of new subscription rights or convertible bonds. Upon the issuance of new shares in the framework of a conversion of the Convertible Bonds, the new shares to be issued will have the same rights and benefits as, and rank pari passu in all respects with, the existing and outstanding shares of the Company at the moment of their issuance and delivery 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 and delivery of the shares. As a result (and to the extent the new shares will be issued), the participation by the existing shares in the profit and liquidation proceeds of the Company and their holder's statutory preferential subscription right in case of a capital increase in cash, shall be diluted accordingly.
A similar dilution occurs upon the exercise of other outstanding dilutive instruments.
Without prejudice to the methodological reservations set out in section 8.1, the evolution of the share capital and the number of shares, with voting rights attached thereto, of the Company as a result of the conversion of the full principal amount of EUR 150 million of the Convertible Bonds is simulated below in a scenario before dilution due to the outstanding dilutive instruments, as well as in a scenario after dilution due to the outstanding dilutive instruments.
| Conversion price | |||
|---|---|---|---|
| Conversion price of EUR 25.85 |
Conversion price of EUR 28.20 |
Conversion price of EUR 30.55 |
|
| After conversion of the Convertible Bonds but prior to the dilution due to |
|||
| outstanding dilutive instruments (A) Outstanding shares |
|||
| (B) New shares to be issued upon |
42,714,097 | 42,714,097 | 42,714,097 |
| conversion of the Convertible Bonds (C) Total number of outstanding shares |
5,802,707 |
5,319,148 | 4,909,983 |
| after (B) |
48,516,804 | 48,033,245 | 47,624,080 |
| (D) Dilution upon conversion of |
|||
| Convertible Bonds | 1196% | 11.07% | 10.31% |
| After the dilution due to outstanding dilutive instruments but prior to conversion of the Convertible Bonds |
|||
| (A) Outstanding shares | 42,714,097 | 42,714,097 | 42,714,097 |
| (B) New shares to be issued upon |
|||
| exercice of outstanding Share Options | 2,808,617 | 2,808,617 | 2,808,617 |
| (C) New shares to be issued under the Put | |||
| Option Agreement |
1,814,124 | 1,662,947 | 1,535,028 |
| (D) New shares to be issued upon |
|||
| exercise of the LDA Warrants(1) (E) New shares to be issued upon |
690,000 |
690,000 | 690,000 |
| Warrants(2) exercise of the Share Lending |
300,000 |
300,000 | 300,000 |
| (F) Total number of new shares to be | |||
| issued under (B), (C), (D) and (E) | 5,612,741 | 5,461,564 | 5,333,645 |
| (G) Total number of outstanding shares | |||
| after (B), (C), (D) and (E) | 48,326,838 | 48,175,661 | 48,047,742 |
| (H) Dilution due to the outstanding |
|||
| dilutive instruments | 1161% | 11.34% | 11.10% |
| Conversion price | |||
|---|---|---|---|
| Conversion price of EUR 25.85 |
Conversion price of EUR 28.20 |
Conversion price of EUR 30.55 |
|
| After conversion of the Convertible Bonds and after the dilution due to outstanding dilutive instruments (A) Outstanding shares after the dilution due to the outstanding dilutive |
|||
| instruments (B) New shares to be issued upon |
48,326,838 | 48,175,661 | 48,047,742 |
| conversion of the Convertible Bonds (C) Number of total outstanding shares |
5,802,707 |
5,319,148 | 4,909,983 |
| after (B) (D) Dilution upon the conversion of the |
54,129,545 | 53,494,809 | 52,957,725 |
| Convertible Bonds _____ |
1072% | 9.94% | 9.27% |
Notes:
(1) It is unlikely that the LDA Warrants are exercised if the market price of the shares of the Company at the time of exercise is less then EUR 27.00 per share.
(2) It is unlikely that the Share Lending Warrants are exercised if the market price of the shares of the Company at the time of exercise is less then EUR 27.00 per share.
Without prejudice to the methodological reservations set out in section 8.1, the table below reflects the evolution of the share capital, assuming the conversion of all Convertible Bonds at conversion prices of, respectively, EUR 25.85, EUR 28.20, and EUR 30.55, and the exercise of the outstanding dilutive instruments. For more information on the conversion of the Convertible Bonds, the outstanding dilutive instruments and the number of new shares to be issued, see Section 8.1. The maximum amount of share capital increase is computed by multiplying the number of new shares to be issued with the fractional value of the Company, i.e. currently rounded up to EUR 0.7321 per share.
| Conversion price |
|||
|---|---|---|---|
| Conversion price of EUR 25.85 |
Conversion price of EUR 28.20 |
Conversion price of EUR 30.55 |
|
| Share capital prior to conversion of the Convertible Bonds and exercice of the |
|||
| other outstanding dilutive instruments |
|||
| (A) Share capital (in EUR) | 31,270,872.40 | 31,270,872.40 | 31,270,872.40 |
| (B) Outstanding shares | 42,714,097 | 42,714,097 | 42,714,097 |
| (C) Par value (in EUR) | 07321 | 0.7321 | 0.7321 |
| Conversion of Convertible Bonds and exercice of the other outstanding |
|||
| dilutive instruments | |||
| (A) Exercice of the Share Options (in |
|||
| EUR) |
2,056,188.51 | 2,056,188.51 | 2,056,188.51 |
| Conversion price |
|||
|---|---|---|---|
| Conversion price of EUR 25.85 |
Conversion price of EUR 28.20 |
Conversion price of EUR 30.55 |
|
| (B) Issuance of the new shares pursuant |
|||
| to the Put Option Agreement (in EUR) |
1,328,120.18 | 1,217,443.50 | 1,123,794.00 |
| (in EUR)(1) (C) Exercice of LDA warrants |
505,149.00 |
505,149.00 | 505,149.00 |
| (D) Exercice of the Share Lending |
|||
| (2) Warrants (in EUR) |
219,630.00 | 219,630.00 | 219,630.00 |
| (E) Conversion of the Convertible Bonds |
|||
| (in EUR)4,248,161.79 | 3,894,148.25 | 3,594,598.55 | |
| (F) Total new shares issued pursuant to | |||
| (A), (B), (C), (D) and (E) |
11,415,448 | 10,780,712 | 10,243,628 |
| Share capital after conversion of the Convertible Bonds and exercice of the other outstanding dilutive instruments |
|||
| (A) Share capital (in EUR) | 39,628,121.89 | 39,163,431.66 | 38,770,232.46 |
| (B) Outstanding shares | 54,129,545 | 53,494,809 | 52,957,725 |
| (C) Par value (in EUR) (rounded) | 07321 | 0.7321 | 0.7321 |
| _____ |
Notes:
The evolution of the consolidated accounting net equity of the Company upon conversion of all Convertible Bonds at conversion prices of, respectively, EUR 25.85, EUR 28.20 and EUR 30.55 is simulated hereafter.
The simulation is based on the following.
Therefore, for the purpose of the simulation below, the adjusted consolidated net book equity of the Company at 30 June 2020 amounts to EUR 190,629,869.00 or EUR 4.46 per share (based on 42,714,097 outstanding shares).
(c) Upon the issuance of new shares following the Conversion of the Convertible Bonds, the amount of the conversion price of the Convertible Bonds will be allocated to the accounting net equity (in the form of share capital, and issue premium). The amount that will be booked as share capital shall, per share, be equal to the amount of the fractional value of the Company's shares (currently amounting to rounded EUR 0.7321 per share). The balance will be booked as issue premium.
Based on the assumptions set out above, as a result of the conversion of the Convertible Bonds at the price of conversion of, respectively, EUR 25.85, EUR 28.20 and EUR 30.55, not taking into account of the other outstanding dilutive instruments, that the Company's accounting net equity on a consolidated basis, would be increased as indicated below:
| Conversion price | |||
|---|---|---|---|
| Conversion price of EUR 25.85 |
Conversion price of EUR 28.20 |
Conversion price of EUR 30.55 |
|
| Consolidated net equity for H1 20 (1) (adjusted) |
|||
| (A) Net equity (in EUR) (rounded) | 190,629,869 00 |
190,629,869.00 | 190,629,869.00 |
| (B) Outstanding shares | 42,714,097 | 42,714,097 | 42,714,097 |
| (C) Net equity per share (in EUR) (rounded) |
4.46 | 4.46 | 4.46 |
| (4) Transaction |
|||
| (2) (A) Increase of net equity (in EUR) (B) Total number of new shares to be |
149,999,975.95 |
149,999,973.60 | 149,999,980.65 |
| issued pursuant to (A) |
5,802,707 | 5,319,148 | 4,909,983 |
| Consolidated net equity for H1 20 (adjusted) after conversion of the Convertible Bonds(3) |
|||
| (A) Net equity (in EUR) (rounded) | 340,629,844.95 | 340,629,842.60 | 340,629,849.65 |
| (B) Outstanding shares (C) Net equity per share (in EUR) |
48,516,804 | 48,033,245 | 47,624,080 |
| (rounded) _____ |
7.02 | 7.09 | 7.15 |
Notes:
(4) Following the issuance of the Convertible Bonds, a portion of the issue price of the Convertible Bonds may already be recorded as net equity. If that is the case, this would be reflected in the consolidated (IFRS) and/or the non-consolidated (Belgian GAAP) financial statements of the Company for the financial year ended on 31 December 2020. On the date of this report the accounting treatment of the Convertible Bonds is still under review by the Company's management and not yet validated by the Company's auditor. The actual application of the reporting standard, the initial recognition moment and valuation of the Convertible Bonds is still being determined and assessed.
The table above demonstrates that the Transaction would, from a pure accounting point of view, result in an increase of the amount represented by each share in the consolidated accounting net equity of the Company.
The evolution of the market capitalisation as a result of the conversion of the Convertible Bonds is simulated below.
Without prejudice to the methodological reservations set out in section 8.1, the table below reflects the impact of the proposed Transaction (at conversion prices of, respectively, EUR 25.85, EUR 28.20 and EUR 30.55), without taking into account other outstanding dilutive instruments, on market capitalisation and the resulting financial dilution.
On 7 December 2020, i.e. the date preceding the date of this report, the Company's market capitalisation was EUR 1,003,781,279.50, on the basis of a closing price of EUR 23.50 per share. Assuming that, after the conversion of the Convertible Bonds, not taking into account the other outstanding dilutive instruments, the market capitalisation increases exclusively with the funds raised on the basis of the parameters set out above, the new market capitalisation would then be, respectively, EUR 23.78, EUR 24.02 and EUR 24.23 per share (rounded). This would represent a (theoretical) increase in value of, respectively, 1.20%, 2.21% and 3.09% per share. In any event, in a scenario where the conversion price of the Convertible Bonds is higher than the market price of the Company's shares at that time, it is unlikely that a holder of Convertible Bonds will exercise its Convertible Bonds.
| Conversion price |
|||
|---|---|---|---|
| Conversion price of EUR 25.85 |
Conversion price of EUR 28.20 |
Conversion price of EUR 30.55 |
|
| Market capitalisation prior to conversion of the Convertible Bonds(1) (2) |
|||
| (A) Market capitalisation (in |
EUR) 1,003,781,279.50 |
1,003,781,279.50 | 1,003,781,279.50 |
| (B) Outstanding shares (C) Market capitalisation per share |
42,714,097 | 42,714,097 | 42,714,097 |
| (in EUR) (rounded) |
23.50 | 23.50 | 23.50 |
| Transaction(3) | |||
| (A) Funds raised (in EUR) (B) Total number of new shares |
149,999,975.95 |
149,999,973.60 | 149,999,980.65 |
| issued | 5,802,707 | 5,319,148 | 4,909,983 |
| Conversion price |
|||
|---|---|---|---|
| Conversion price of EUR 25.85 |
Conversion price of EUR 28.20 |
Conversion price of EUR 30.55 |
|
| Market capitalisation after conversion of the Convertible Bonds(2) |
|||
| (A) Market capitalisation (in |
EUR) 1,153,781,255.45 |
1,153,781,253.10 | 1,153,781,260.15 |
| (B) Outstanding shares | 48,516,804 | 48,033,245 | 47,624,080 |
| (C) Market capitalisation per share (in EUR) (rounded) |
23.78 | 24.02 | 24.23 |
| (D) (Theoretical) impact on the |
|||
| valuation per share |
1.20% | 2.21% | 3.09% |
Notes:
___________
For a further discussion on the financial consequence of the proposed Transaction, the board of directors refers to the report prepared in connection therewith by the statutory auditor of the Company.
* * *
Done on 8 December 2020.
[the signature page follows]
On behalf of the board of directors,
_______________________
By: [Signed] By: [Signed]
_______________________
Director
Director
Note: The Conditions in English below reflect the proposed terms and conditions of the Convertible Bonds, of which several items, which are indicated between square brackets, will be finalised upon completion of the placement of the Convertible Bonds through the accelerated bookbuilding process, including notably the aggregate amount of the Convertible Bonds, the interest rate, the conversion price, the issue date and the maturity date of the Convertible Bonds. The Conditions have been prepared in English with a French translation. In case of discrepancies between the English and the French version, the French version of the Conditions must be construed in accordance with the English version of the Conditions.
SOLELY FOR THE PURPOSES OF THE PRODUCT GOVERNANCE REQUIREMENTS CONTAINED WITHIN: (A) EU DIRECTIVE 2014/65/EU ON MARKETS IN FINANCIAL INSTRUMENTS, AS AMENDED ("MIFID II"); (B) ARTICLES 9 AND 10 OF COMMISSION DELEGATED DIRECTIVE (EU) 2017/593 SUPPLEMENTING MIFID II; AND (C) LOCAL IMPLEMENTING MEASURES (TOGETHER, THE "MIFID II PRODUCT GOVERNANCE REQUIREMENTS"), AND DISCLAIMING ALL AND ANY LIABILITY, WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE, WHICH ANY "MANUFACTURER" (FOR THE PURPOSES OF THE MIFID II PRODUCT GOVERNANCE REQUIREMENTS) MAY OTHERWISE HAVE WITH RESPECT THERETO, THE BONDS HAVE BEEN SUBJECT TO A PRODUCT APPROVAL PROCESS, WHICH HAS DETERMINED THAT: (I) THE TARGET MARKET FOR THE BONDS IS ELIGIBLE COUNTERPARTIES AND PROFESSIONAL CLIENTS ONLY, EACH AS DEFINED IN MIFID II; AND (II) ALL CHANNELS FOR DISTRIBUTION OF THE BONDS TO ELIGIBLE COUNTERPARTIES AND PROFESSIONAL CLIENTS ARE APPROPRIATE. ANY PERSON SUBSEQUENTLY OFFERING, SELLING OR RECOMMENDING THE BONDS (A "DISTRIBUTOR") SHOULD TAKE INTO CONSIDERATION EACH MANUFACTURER'S TARGET MARKET ASSESSMENT; HOWEVER, A DISTRIBUTOR SUBJECT TO MIFID II IS RESPONSIBLE FOR UNDERTAKING ITS OWN TARGET MARKET ASSESSMENT IN RESPECT OF THE BONDS (BY EITHER ADOPTING OR REFINING EACH MANUFACTURER'S TARGET MARKET ASSESSMENT) AND DETERMINING APPROPRIATE DISTRIBUTION CHANNELS.
THE TARGET MARKET ASSESSMENT IS WITHOUT PREJUDICE TO THE REQUIREMENTS OF ANY CONTRACTUAL OR LEGAL SELLING RESTRICTIONS IN RELATION TO THE BONDS.
FOR THE AVOIDANCE OF DOUBT, THE TARGET MARKET ASSESSMENT DOES NOT CONSTITUTE: (A) AN ASSESSMENT OF SUITABILITY OR APPROPRIATENESS FOR THE PURPOSES OF MIFID II; OR (B) A RECOMMENDATION TO ANY INVESTOR OR GROUP OF INVESTORS TO INVEST IN, OR PURCHASE, OR TAKE ANY OTHER ACTION WHATSOEVER WITH RESPECT TO THE BONDS.
THE BONDS ARE NOT INTENDED TO BE OFFERED, SOLD OR OTHERWISE MADE AVAILABLE TO, AND SHOULD NOT BE OFFERED, SOLD OR OTHERWISE MADE AVAILABLE TO, ANY RETAIL INVESTOR IN THE EUROPEAN ECONOMIC AREA ("EEA") OR THE UNITED KINGDOM. FOR THESE PURPOSES, A RETAIL INVESTOR MEANS A PERSON WHO IS ONE (OR MORE) OF: (I) A RETAIL CLIENT AS DEFINED IN POINT (11) OF ARTICLE 4(1) OF MIFID II; OR (II) A CUSTOMER WITHIN THE MEANING OF DIRECTIVE (EU) 2016/97, AS AMENDED, WHERE THAT CUSTOMER WOULD NOT QUALIFY AS A PROFESSIONAL CLIENT AS DEFINED IN POINT (10) OF ARTICLE 4(1) OF MIFID II. CONSEQUENTLY, NO KEY INFORMATION DOCUMENT REQUIRED BY REGULATION (EU) NO 1286/2014, AS AMENDED (THE "PRIIPS REGULATION") FOR OFFERING OR SELLING THE BONDS OR OTHERWISE MAKING THEM AVAILABLE TO RETAIL INVESTORS IN THE EEA OR THE UNITED KINGDOM HAS BEEN PREPARED AND THEREFORE OFFERING OR SELLING THE BONDS OR OTHERWISE MAKING THEM AVAILABLE TO ANY RETAIL INVESTOR IN THE EEA OR THE UNITED KINGDOM MAY BE UNLAWFUL UNDER THE PRIIPS REGULATION.
The issue of the €[●] [●] per cent. Convertible Bonds due 2025 (the "Bonds", which expression shall, unless otherwise indicated, include any Further Bonds) was (save in respect of any Further Bonds) authorised by a resolution of the Board of Directors of Mithra Pharmaceuticals SA (the "Issuer") with LEI number 5493002FDD273HTEKK14, passed on [•] December 2020. The Bonds are issued subject to (i) the Paying and Conversion Agency Agreement (the "Agency Agreement") dated on or about the Closing Date (as defined below) relating to the Bonds between the Issuer and Belfius Bank SA/NV as paying and conversion agent (the "Paying and Conversion Agent", which expression shall include any successor as Paying and Conversion Agent under the Agency Agreement) and (ii) the service contract for the issuance of fixed income securities (the "Clearing Services Agreement") dated on or about the Closing Date between the Issuer, Belfius Bank SA/NV as paying agent and the National Bank of Belgium (the "NBB"). The Issuer has also entered into a calculation agency agreement (the "Calculation Agency Agreement") dated on or about the Closing Date with Conv-Ex Advisors Limited as calculation agent (the "Calculation Agent", which expression shall include any successor as calculation agent under the Calculation Agency Agreement) whereby the Calculation Agent has been appointed to make certain calculations in relation to the Bonds. The statements in these Conditions include summaries of, and are subject to, the detailed provisions of the Agency Agreement and the Clearing Services Agreement.
Copies of the Agency Agreement, the Calculation Agency Agreement and the Clearing Services Agreement are available for inspection during normal business hours by the Bondholders at the specified office of the Paying and Conversion Agent.
Capitalised terms used but not defined in these Terms and Conditions (the "Conditions") shall have the meanings attributed to them in the Agency Agreement unless the context otherwise requires or unless otherwise stated.
The Bonds are in dematerialised form in accordance with the Belgian Companies and Associations Code (Wetboek van vennootschappen en verenigingen/Code des sociétés et des associations), as amended (the "Belgian Companies and Associations Code"). The Bonds will be represented by book-entry in the records of the securities settlement system operated by the NBB or any successor thereto (the "NBB-SSS"). The Bonds can be held by their holders through participants in the NBB-SSS, including Euroclear, Euroclear France, Clearstream, SIX SIS, Monte Titoli, Interbolsa, LuxCSD and through financial intermediaries which in turn hold the Bonds through Euroclear, Euroclear France, Clearstream, SIX SIS, Monte Titoli, Interbolsa or LuxCSD, or other participants in the NBB-SSS. The Bonds are accepted for settlement through the NBB-SSS and are accordingly subject to the applicable Belgian settlement regulations, including the Belgian Law of 6 August 1993 on transactions in certain securities, its implementing Belgian Royal Decrees of 26 May 1994 and 14 June 1994 and the rules of the NBB-SSS and its annexes, as issued or modified by the NBB from time to time (the laws, decrees and rules mentioned in these Conditions being referred to herein as the "NBB-SSS Regulations"). Title to the Bonds passes by account transfer. The holder of a Bond will not be entitled to exchange the Bonds in bearer form.
Bonds may be held only by, and transferred only to, eligible investors referred to in Article 4 of the Belgian Royal Decree of 26 May 1994 on the deduction and compensation of withholding tax in accordance with chapter I of the Belgian Law of 6 August 1993 in relation to transactions with certain securities, holding their securities in an exempt securities account that has been opened with a financial institution that is a direct or indirect participant in the NBB-SSS.
Payments of principal, interest and other sums due under the Bonds will be made in accordance with the NBB-SSS Regulations through the NBB. Bondholders are entitled to claim directly against the Issuer any payment which the Issuer has failed to make and to exercise the rights they have, including exercising Conversion Rights (as defined below), voting rights, making requests, giving consents and other associative rights (as defined in the Belgian Companies and Associations Code) against the Issuer upon submission of an affidavit drawn up by the NBB, Euroclear, Euroclear France, Clearstream, SIX SIS, Monte Titoli, Interbolsa, LuxCSD or any other participant duly licensed in Belgium to keep dematerialised securities accounts showing such holder's position in the Bonds (or the position held by the financial institution through which such holder's Bonds are held with the NBB, Euroclear, Euroclear France, Clearstream, SIX SIS, Monte Titoli, Interbolsa, LuxCSD or such other participant, in which case an affidavit drawn up by that financial institution will also be required).
If at any time the Bonds are transferred to another clearing system not operated or not exclusively operated by the NBB, these provisions shall apply mutatis mutandis to such successor clearing system and successor.
The Bonds are in principal amounts of €100,000 each and may only be settled in principal amounts equal to that denomination and integral multiples in excess thereof.
(ii) Status
The Bonds constitute senior, direct, unconditional, unsubordinated and (subject to Condition 2 (Negative Pledge)) unsecured obligations of the Issuer ranking pari passu and rateably, without any preference among themselves, and equally with all other existing and future unsecured and unsubordinated obligations of the Issuer (other than in respect of statutorily preferred creditors).
So long as any Bond remains outstanding (as defined in the Agency Agreement), the Issuer shall not, and will ensure that none of its Material Subsidiaries (as defined below) will, create, or permit to subsist, or have outstanding, any mortgage, charge, lien, pledge or other security interest, upon the whole or any part of its present or future undertakings, assets or revenues (including any uncalled capital) to secure any Relevant Indebtedness or to secure any guarantee or indemnity in respect of any Relevant Indebtedness, without at the same time or prior thereto securing the Issuer's obligations under the Bonds equally and rateably.
In this Condition:
"Relevant Indebtedness" means any present or future indebtedness (whether being principal, interest or other amounts) which is in the form of, or represented by, bonds, notes, debentures, loan stock or other similar debt instruments or securities which are, or are capable of being, quoted, listed or dealt in on any stock exchange, over-the-counter or other securities market.
In these Conditions, unless otherwise provided:
"Additional Ordinary Shares" has the meaning provided in Condition 5(c).
"Additional Ordinary Shares Delivery Date" means, in relation to the Additional Ordinary Shares to be delivered to a Bondholder following a Retroactive Adjustment, the date from which such holder is entitled to all rights and entitlements to such Additional Ordinary Shares, as provided in Condition 5(h).
"Bondholder" means the holder of any Bond.
"business day" means, in relation to any place, a day (other than a Saturday or Sunday) (i) on which the NBB-SSS is operating, (ii) on which commercial banks and foreign exchange markets are open for business in that place, and (iii) (if payment in euro is to be made on that day), which is a TARGET Business Day.
a "Change of Control" shall occur if an offer is made by any person to all (or substantially all) Shareholders other than the offeror and/or any parties acting in concert (as defined in Article 3, paragraph 1, 5° of the Belgian Law of 1 April 2007 on public takeover bids, as amended) with the offeror, to acquire all or a majority of the issued ordinary share capital of the Issuer and (the period for such offer being closed, the definitive results of such offer having been announced and such offer having become unconditional in all respects) the offeror has acquired, or, following the publication of the results of such offer by the offeror, is entitled (such entitlement being unconditional and not being subject to any discretion of the offeror as to whether to exercise it or not) to acquire as a result of such offer, post-completion thereof, Ordinary Shares or other voting rights of the Issuer so that it has the right to cast more than 50 per cent. of the votes which may ordinarily be cast on a poll at a general meeting of the Shareholders of the Issuer, whereby the date on which the Change of Control shall be deemed to have occurred shall be the date of the publication by the offeror of the results of the relevant offer (and for the avoidance of doubt prior to any reopening of the offer in accordance with Article 42 of the Belgian Royal Decree of 27 April 2007 (as amended) on takeover bids).
"Change of Control Period" means the period commencing on the occurrence of a Change of Control and ending 60 calendar days following the Change of Control or, if later, ending 60 calendar days following the date on which a Change of Control Put Event Notice is given to Bondholders as required by Condition 5(g).
"Change of Control Put Date" has the meaning provided in Condition 6(d).
"Change of Control Put Event Notice" has the meaning provided in Condition 5(g).
"Change of Control Put Exercise Notice" has the meaning provided in Condition 6(d).
"Change of Control Resolutions" means one or more resolutions duly adopted at a general meeting of the Shareholders of the Issuer approving and confirming the provisions of Condition 5(b)(x) and Condition 6(d) in accordance with Article 7:151 of the Belgian Companies and Associations Code.
"Clearstream" means Clearstream Banking Frankfurt.
"Closing Date" means [●] 2020.
"Closing Price" means, in respect of an Ordinary Share, Security or, as the case may be, a Spin-Off Security, option, warrant or other right or asset, on any dealing day in respect thereof, the closing price on the Relevant Stock Exchange on such dealing day of such Ordinary Share, Security or, as the case may be, such Spin-Off Security, option, warrant, or other right or asset as published by or derived from Bloomberg page HP (or any successor ticker page) (setting 'Last Price', or any other successor setting and using values not adjusted for any event occurring after such dealing day; and for the avoidance of doubt, all values will be determined with all adjustment settings on the DPDF page, or any successor or similar setting, switched off) in respect of such Ordinary Share, Security, Spin-Off Security, option, warrant or other right or asset in respect of the Relevant Stock Exchange therefor (all as determined by the Calculation Agent) (and for the avoidance of doubt such Bloomberg page for the Ordinary Shares as at the Closing Date is MITRA BB Equity HP), if available or, in any other case, such other source as shall be determined in good faith to be appropriate by an Independent Adviser on such dealing day, provided that:
"control" means "control" within the meaning of the Belgian Companies and Associations Code.
"Conversion Date" has the meaning provided in Condition 5(h).
"Conversion Notice" has the meaning provided in Condition 5(h).
"Conversion Period" has the meaning provided in Condition 5(a).
"Conversion Price" has the meaning provided in Condition 5(a).
"Conversion Right" has the meaning provided in Condition 5(a).
"Current Market Price" means, in respect of an Ordinary Share at a particular date, the arithmetic mean of the daily Volume Weighted Average Price of an Ordinary Share on each of the five consecutive dealing days ending on the dealing day immediately preceding such date, as determined by the Calculation Agent; provided that:
Calculation Agent on a gross basis and disregarding any withholding or deduction required to be made for or on account of tax, and disregarding any associated tax credit; or
"dealing day" means a day on which the Relevant Stock Exchange is open for business and on which Ordinary Shares, Securities, Spin-Off Securities, options, warrants or other rights or assets (as the case may be) may be dealt in (other than a day on which the Relevant Stock Exchange is scheduled to or does close prior to its regular weekday closing time), provided that, unless otherwise specified or the context otherwise requires, references to "dealing day" shall be a dealing day in respect of the Ordinary Shares.
"Delivery Date" means, in relation to the Ordinary Shares to be delivered to a Bondholder following the exercise of Conversion Rights, the date from which such holder is entitled to all rights and entitlements to such Ordinary Shares, as provided in Condition 5(h).
"Dividend" means any dividend or distribution to Shareholders (including a Spin-Off) whether of cash, assets or other property, and however described and whether payable out of share premium account, profits, retained earnings or any other capital or revenue reserve or account, and including a distribution or payment to Shareholders upon or in connection with a reduction of capital (and for these purposes a distribution of assets includes without limitation an issue of Ordinary Shares or other Securities credited as fully or partly paid up by way of capitalisation of profits or reserves), provided that:
the payment of cash, then the Dividend or capitalisation in question shall be treated as a cash Dividend of an amount equal to the greater of (i) the Fair Market Value of such cash amount and (ii) the Current Market Price of such Ordinary Shares or, as the case may be, the Fair Market Value of such other property or assets, in any such case as at the Ex-Date in respect of the relevant Dividend or capitalisation on the Relevant Stock Exchange (or, if later, the Dividend Determination Date), save that where a Dividend in cash is announced which may at the election of a Shareholder or Shareholders be satisfied by the issue or delivery of Ordinary Shares or an issue of Ordinary Shares to Shareholders by way of capitalisation of profits or reserves is announced which may at the election of a Shareholder or Shareholders be satisfied by the payment of cash where the number of Ordinary Shares which may be issued or delivered is to be determined at a date or during a period following such announcement and is to be determined by reference to a publicly available formula based on the closing price or volume weighted average price or any like or similar pricing benchmark of the Ordinary Shares, without factoring in any discount or premium to such price or benchmark, then such Dividend shall be treated as a cash Dividend in an amount equal to the Fair Market Value of such cash amount on such date as such cash amount is determined as aforesaid; or
(2) there shall (other than in circumstances subject to proviso (1) above) (x) be any issue of Ordinary Shares or other property or assets to Shareholders by way of capitalisation of profits or reserves (including any share premium account or capital redemption reserve) where such issue is or is expressed to be in lieu of a Dividend (whether or not a cash Dividend equivalent or amount is announced) or a Dividend in cash is announced that is to be satisfied by the issue or delivery of Ordinary Shares or other property or assets, or (y) any issue or delivery of Ordinary Shares or other property or assets by way of capitalisation of profits or reserves (including any share premium account or capital redemption reserve) that is to be satisfied by the payment of cash, then, in the case of (x) the capitalisation or Dividend in question shall be treated as a cash Dividend of an amount equal to the Current Market Price of such Ordinary Shares or, as the case may be, the Fair Market Value of such other property or assets as at the Ex-Date in respect of the relevant capitalisation on the Relevant Stock Exchange or, if later, the Dividend Determination Date, and, in the case of (y), the capitalisation in question shall be treated as a cash Dividend of an amount equal to the Fair Market Value of such cash amount as at the Ex-Date in respect of the relevant capitalisation (or, if later, the Dividend Determination Date), save that where an issue of Ordinary Shares by way of capitalisation of profits or reserves is announced where such issue is or is expected to be in lieu of a Dividend in cash (in circumstances where the cash amount thereof is announced) or an issue of Ordinary Shares by way of capitalisation of profits or reserves is announced that is to be satisfied by the payment of cash where the number of Ordinary Shares to be issued or delivered or the amount of such payment of cash is to be determined at a date or during a period following such announcement and is to be determined by reference to a publicly available formula based on the closing price or volume weighted average price or any like or similar pricing benchmark of the Ordinary Shares, without factoring in any discount or premium to such price or benchmark, then such capitalisation shall be treated as a cash Dividend in an amount equal to the Fair Market Value of such cash amount on such date as such cash amount is announced or determined as aforesaid;
(b) any issue of Ordinary Shares falling within Condition 5(b)(i) or 5(b)(ii) shall be disregarded;
in which case such purchase, redemption or buy back shall be deemed to constitute a Dividend in the Relevant Currency in an amount equal to the amount by which the aggregate price paid (before expenses) in respect of such Ordinary Shares purchased, redeemed or bought back by or on behalf of the Issuer or, as the case may be, any of its Subsidiaries (translated where appropriate into the Relevant Currency as provided above) exceeds the product of (i) 105 per cent. of such Current Market Price and (ii) the number of Ordinary Shares so purchased, redeemed or bought back;
and any such determination shall be made in good faith by the Calculation Agent or, where specifically provided, by an Independent Adviser, and, in either case, on a gross basis and disregarding any withholding or deduction required to be made for or on account of tax, and disregarding any associated tax credit.
"Dividend Determination Date" means for the purposes of the definition of "Dividend" the date on which the number of Ordinary Shares or, as the case may be, amount of other property or assets, which may be issued or delivered is, or is capable of being, determined, and where determined by reference to prices or values or the
like on or during a particular day or during a particular period, the Dividend Determination Date shall be deemed to be such day or the last day of such period, as the case may be.
"EEA Regulated Market" means a market as defined by Article 4.1(21) of Directive 2014/65/EU of the European Parliament and of the Council on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU.
"Early Redemption Calculation Period" has the meaning set out in Condition 6(e) (Redemption if the Change of Control Resolutions are not passed).
"equity share capital" means, in relation to any entity, its issued share capital excluding any part of that capital which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specific amount in a distribution.
"Euroclear" means Euroclear Bank SA/NV.
"Euroclear France" means Euroclear France S.A.
"Euronext Brussels" means the EEA Regulated Market of Euronext Brussels.
"Event of Default" means an event of default set out in Condition 9 (Events of Default).
"Ex-Date" means, in relation to any Dividend (including without limitation any Spin-Off), capitalisation, redesignation, reclassification, sub-division, consolidation, issue, grant, offer or other entitlement, unless otherwise defined herein, the first dealing day on which the Ordinary Shares are traded ex- the relevant Dividend, capitalisation, redesignation, reclassification, sub-division, consolidation, issue, grant, offer or other entitlement on the Relevant Stock Exchange (or, in the case of a Dividend which is a purchase, redemption or buy back of Ordinary Shares (or, as the case may be, any depositary or other receipts or certificates representing Ordinary Shares) pursuant to paragraph (c) (or, as the case may be, paragraph (d)) of the definition of "Dividend", the date on which such purchase, redemption or buy back is made).
"Extraordinary Resolution" has the meaning set out in Condition 12(a) (Meetings of Bondholders).
"Fair Bond Value" has the meaning set out in Condition 6(e) (Redemption if the Change of Control Resolutions are not passed).
"Fair Market Value" means, on any date (the "FMV Date"):
in the case of both (a) and (b) during the period of five consecutive dealing days on the Relevant Stock Exchange for such Securities, Spin-Off Securities, options, warrants or other rights or assets commencing on such FMV Date (or, if later, the date (the "Adjusted FMV Date") which falls on the first such dealing day on which such Securities, Spin-Off Securities, options, warrants or other rights or assets are publicly traded, provided that where such Adjusted FMV Date falls after the fifth day following the FMV Date, the Fair Market Value of such Securities, Spin-Off Securities, options, warrants or other rights or assets shall instead be determined pursuant to paragraph (iv) below, and no such Adjusted FMV Date shall be deemed to apply) or such shorter period as such Securities, Spin-Off Securities, options, warrants or other rights or assets are publicly traded, all as determined in good faith by the Calculation Agent;
(iv) in the case of Securities, Spin-Off Securities, options, warrants or other rights or assets that are not publicly traded on a Relevant Stock Exchange of adequate liquidity (as aforesaid) or where otherwise provided in paragraph (iii) above to be determined pursuant to this paragraph (iv), an amount equal to the fair market value of such Securities, Spin-Off Securities, options, warrants or other rights or assets as determined in good faith by an Independent Adviser, on the basis of a commonly accepted market valuation method and taking account of such factors as it considers appropriate, including the market price per Ordinary Share, the dividend yield of an Ordinary Share, the volatility of such market price, prevailing interest rates and the terms of such Securities, Spin-Off Securities, options, warrants or other rights or assets, and including the expiry date and exercise price or the like (if any) thereof.
Such amounts shall (if not expressed in the Relevant Currency on the FMV Date (or, as the case may be, the Adjusted FMV Date)) be translated into the Relevant Currency at the Prevailing Rate on the FMV Date (or, as the case may be, the Adjusted FMV Date), all as determined in good faith by the Calculation Agent.
"Final Maturity Date" means [●] 2025.
"Further Bonds" means any further Bonds issued pursuant to Condition 14 (Further Issues) and consolidated and forming a single series with the then outstanding Bonds.
"Group" means the Issuer and its Subsidiaries.
"Independent Adviser" means an independent financial institution of international repute or an independent financial adviser with appropriate expertise, which may be (without limitation) the Calculation Agent, appointed by the Issuer at its own expense or, if the Issuer fails to make such appointment and such failure continues for a reasonable period (as determined by a resolution of the Bondholders in their sole discretion) appointed by a resolution of Bondholders, in each case at the expense of the Issuer.
"Interbolsa" means Interbolsa S.A.
"Interest Payment Date" has the meaning provided in Condition 4(a).
"Interest Period" has the meaning provided in Condition 4(a).
"Long Stop Date" means [●] 2021.
"LuxCSD" means LuxCSD S.A.
a "Material Subsidiary" means any Subsidiary of the Issuer:
(i) whose (a) total assets or (b) turnover or (c) EBITDA (consolidated in the case of a Subsidiary which itself has subsidiaries) represent 5 per cent. or more of the consolidated total assets of the Issuer and its Subsidiaries or consolidated turnover of the Issuer and its Subsidiaries or, as the case may be, consolidated EBITDA of the Issuer and its Subsidiaries, in each case as calculated by reference to the then latest audited financial statements of such Subsidiary (consolidated or, as the case may be, unconsolidated) and the then latest audited consolidated financial statements of the Issuer provided that:
"Monte Titoli" means Monte Titoli S.p.A.
"Optional Redemption Date" has the meaning provided in Condition 6(b).
"Optional Redemption Notice" has the meaning provided in Condition 6(b).
"Ordinary Shares" means fully paid ordinary shares in the capital of the Issuer.
"Parity Value" means, in respect of any dealing day, the amount determined in good faith by the Calculation Agent and calculated as follows:
PV = N x VWAP
where
PV = the Parity Value
$$\textbf{A43103129}$$
N = €100,000 divided by the Conversion Price in effect on such dealing day (which shall be the Change of Control Conversion Price if such Change of Control Conversion Price would apply in respect of any exercise of Conversion Rights in respect of which the Conversion Date would fall on such dealing day), provided that if (A) such dealing day falls on or after (i) the Ex-Date in relation to any entitlement in respect of which an adjustment is required to be made to the Conversion Price pursuant to Conditions 5(b)(i), 5(b)(ii), 5(b)(iii), 5(b)(iv), 5(b)(v) or 5(b)(ix) or (ii) the relevant date of first public announcement (as applicable pursuant to Conditions 5(b)(vi), 5(b)(vii) or 5(b) (viii)) in respect of which an adjustment is required to be made to the Conversion Price pursuant to Conditions 5(b)(vi), 5(b)(vii) or 5(b)(viii), and (B) such adjustment is not yet in effect on such dealing day, the Conversion Price in effect on such dealing day shall for the purpose of this definition only be multiplied by the adjustment factor subsequently determined by the Calculation Agent to be applicable in respect of the relevant Conversion Price adjustment.
VWAP = the Volume Weighted Average Price of an Ordinary Share on such dealing day translated, if not in euro, into euro at the Prevailing Rate on such dealing day.
a "person" includes any individual, company, corporation, firm, partnership, joint venture, undertaking, association, organisation, trust, state or agency of a state (in each case whether or not being a separate legal entity).
"Prevailing Rate" means in respect of any pair of currencies on any calendar day, the spot mid-rate of exchange between the relevant currencies prevailing as at 12 noon (Brussels time) on that date as appearing on or derived from Bloomberg page BFIX (or any successor thereto) in respect of such pair of currencies, or, if such a rate cannot be so determined, such rate prevailing as at 12 noon (Brussels time) on the immediately preceding day on which such rate can be so determined all as determined by the Calculation Agent, or if such rate cannot be so determined, the rate determined in such other manner as an Independent Adviser shall consider in good faith appropriate.
"Relevant Currency" means, at any time, the currency in which the Ordinary Shares are quoted or dealt in at such time on the Relevant Stock Exchange.
"Relevant Date" means, in respect of any Bond, whichever is the later of:
"Relevant Stock Exchange" means (i) in the case of Ordinary Shares, Euronext Brussels or, if the Ordinary Shares cease to be listed and admitted to trading on Euronext Brussels, the principal stock exchange or securities market on which the Ordinary Shares are, at the relevant time, listed, admitted to trading or quoted or dealt in and (ii) in the case of Securities (other than Ordinary Shares), Spin-Off Securities, options, warrants or other rights or assets, the principal stock exchange or securities market on which such Securities (other than Ordinary Shares), Spin-Off Securities, options, warrants or other rights or assets are then listed, admitted to trading or quoted or dealt in, where "principal stock exchange or securities market" shall mean the stock exchange or securities market on which such Ordinary Shares, Securities, Spin-Off Securities, options, warrants or other rights or assets are listed, admitted to trading or quoted or dealt in, provided that if such Ordinary Shares, Securities, Spin-Off Securities, options, warrants or other rights or assets are listed, admitted to trading or quoted or dealt in (as the case may be) on more than one stock exchange or securities market at such time, then "principal stock exchange or securities market" shall mean that stock exchange or securities market on which such Ordinary Shares, Securities, Spin-Off Securities, options, warrants or other rights or assets are traded at such time as determined by the Calculation Agent (if the Calculation Agent determines that it is able to make such determination) or (in any other case) by an Independent Adviser by reference to the stock exchange or securities market with the highest average daily trading volume in respect of such Ordinary Shares, Securities, Spin-Off Securities, options, warrants or other rights or assets.
"Retroactive Adjustment" has the meaning provided in Condition 5(c).
"Securities" means any securities including, without limitation, Ordinary Shares and any other shares in the capital of the Issuer, or options, warrants or other rights to subscribe for or purchase or acquire Ordinary Shares or any other shares in the capital of the Issuer.
"Shareholders" means the holders of Ordinary Shares.
"SIX SIS" means SIX SIS AG.
"Specified Date" has the meaning provided in Conditions 5(b)(vi), (vii) and (viii).
"Spin-Off Securities" means equity share capital of an entity other than the Issuer or options, warrants or other rights to subscribe for or purchase equity share capital of an entity other than the Issuer.
"Subsidiary" means, in respect of any entity, a company over which such entity has control.
"TARGET Business Day" means a day (other than a Saturday or Sunday) on which the TARGET 2 System is operating for the settlement of payments in euro.
"TARGET 2 System" means the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET 2) system which utilises a single shared platform and which was launched on 19 November 2007, or any successor thereto.
"Volume Weighted Average Price" means, in respect of an Ordinary Share, Security or, as the case may be, a Spin-Off Security, option, warrant or other right or asset on any dealing day in respect thereof, the volumeweighted average price on such dealing day on the Relevant Stock Exchange of such Ordinary Share, Security or, as the case may be, Spin-Off Security, option, warrant, or other right as published by or derived from Bloomberg page HP (or any successor page) (setting 'Weighted Average Line', or any other successor setting and using values not adjusted for any event occurring after such dealing day; and for the avoidance of doubt, all values will be determined with all adjustment settings on the DPDF Page, or any successor or similar setting, switched off) in respect of such Ordinary Share, Security, Spin-Off Security, option, warrant or other right or asset in respect of the Relevant Stock Exchange therefor (and for the avoidance of doubt such Bloomberg page for the Ordinary Shares as at the Closing Date is MITRA BB Equity HP), if any or, in any such case, such other source as shall be determined in good faith to be appropriate by an Independent Adviser on such dealing day, provided that:
(i) if on any such dealing day (the "Affected VWAP Dealing Day") such price is not available or cannot otherwise be determined as provided above, the Volume Weighted Average Price of such Ordinary Share, Security, a Spin-Off Security option, warrant or other right, as the case may be, in respect of such dealing day shall be the Volume Weighted Average Price, determined as provided above, on the immediately preceding such dealing day on which the same can be so determined, provided however that if such immediately preceding dealing day falls prior to the fifth day before the Affected VWAP Dealing Day, the Volume Weighted Average Price in respect of such dealing day shall be considered to be not capable of being determined pursuant to this proviso (i); and
(ii) if the Volume Weighted Average Price cannot be determined as aforesaid, the Volume Weighted Average Price of such Ordinary Share, Security or Spin-Off Security, as the case may be, shall be determined as at the Affected VWAP Dealing Day by an Independent Adviser in such manner as it shall determine in good faith to be appropriate,
and the Volume Weighted Average Price determined as aforesaid on or as at any dealing day shall, if not in the Relevant Currency, be translated into the Relevant Currency at the Prevailing Rate on such dealing day.
"€" and "euro" and "EUR" means the currency introduced at the start of the third stage of the European Economic and Monetary Union pursuant to the Treaty establishing the European Community, as amended.
References to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment.
References to any issue or offer or grant to Shareholders or existing Shareholders "as a class" or "by way of rights" shall be taken to be references to an issue or offer or grant to all or substantially all Shareholders or existing Shareholders, as the case may be, other than Shareholders or existing Shareholders, as the case may be, to whom, by reason of the laws of any territory or requirements of any recognised regulatory body or any other stock exchange or securities market in any territory or in connection with fractional entitlements, it is determined not to make such issue or offer or grant.
In making any calculation or determination of Closing Price, Current Market Price or Volume Weighted Average Price, such adjustments (if any) shall be made as the Calculation Agent or an Independent Adviser considers in good faith appropriate to reflect any consolidation or sub-division of the Ordinary Shares or any issue of Ordinary Shares by way of capitalisation of profits or reserves, or any like or similar event.
For the purposes of Conditions 5(a), (b), (c), (h) and (i) only, (i) references to the "issue" of Ordinary Shares or Ordinary Shares being "issued" shall include the transfer and/or delivery of Ordinary Shares, whether newly issued and allotted or previously existing or held by (in treasury) or on behalf of the Issuer or any of its Subsidiaries and (ii) Ordinary Shares held by or on behalf of the Issuer or any of its Subsidiaries (and which, in the case of Condition 5(b)(iv) and 5(b)(vi), do not rank for the relevant right or other entitlement) shall not be considered as or treated as "in issue" or "issued" or entitled to receive the relevant Dividend, right or other entitlement.
Headings and sub-headings are for ease of reference only and shall not affect the construction of these Conditions.
References in these Conditions to listing on Euronext Brussels (or like or similar references) shall be construed as including an admission to trading on Euronext Brussels, and vice versa.
The Bonds bear interest from (and including) the Closing Date at the rate of [●] per cent. per annum calculated by reference to the principal amount thereof and payable semi-annually in arrear in equal instalments on [●] and [●] in each year (each an "Interest Payment Date"), with the first payment of interest being made on [●] 2021.
The amount of interest payable in respect of any period which is shorter than an Interest Period shall be calculated on the basis of the actual number of days in the relevant period from (and including) the first day of such period to (but excluding) the last day of such period divided by the product of the actual number of days from (and including) the immediately preceding Interest Payment Date (or, if none, the Closing Date) to (but excluding) the next Interest Payment Date and the number of Interest Periods normally ending in any year.
"Interest Period" means the period beginning on (and including) the Closing Date and ending on (but excluding) the first Interest Payment Date and each successive period beginning on (and including) an Interest Payment Date and ending on (but excluding) the next succeeding Interest Payment Date.
Each Bond will cease to bear interest (i) where the Conversion Right shall have been exercised by a Bondholder, from the Interest Payment Date immediately preceding the relevant Conversion Date or, if none, the Closing Date (subject in any such case as provided in Condition 5(j)) and (ii) where such Bond is redeemed or repaid pursuant to Condition 6 (Redemption and Purchase) or Condition 9 (Events of Default), from the due date for redemption or repayment thereof unless payment of principal is improperly withheld or refused, in which event interest will continue to accrue at the rate specified in Condition 4(a) (both before and after judgment) up to, but excluding, the Relevant Date.
Subject to and as provided in these Conditions, each Bond shall entitle the holder to convert such Bond into new and/or existing Ordinary Shares as determined by the Issuer, credited as fully paid (a "Conversion Right").
The number of Ordinary Shares to be issued or transferred and delivered on exercise of a Conversion Right shall be determined by the Calculation Agent by dividing the principal amount of the Bonds to be converted by the conversion price (the "Conversion Price") in effect on the relevant Conversion Date.
The initial Conversion Price is €[●] per Ordinary Share. The Conversion Price is subject to adjustment in the circumstances described in Condition 5(b).
A Bondholder may exercise the Conversion Right in respect of a Bond by delivering a duly completed Conversion Notice, to the specified office of any Paying and Conversion Agent and transferring the Bond to be redeemed to a securities account specified by the Paying and Conversion Agent in accordance with Condition 5(h) whereupon the Issuer shall (subject as provided in these Conditions) procure the delivery, to or as directed by the relevant Bondholder, of Ordinary Shares credited as paid up in full as provided in this Condition 5 (Conversion of Bonds).
Subject to and as provided in these Conditions, the Conversion Right in respect of a Bond may be exercised, at the option of the holder thereof, at any time (subject to any applicable fiscal or other laws or regulations and as hereinafter provided) from the Closing Date to the date falling ten calendar days prior to the Final Maturity Date (both days inclusive) or, if such Bond is to be redeemed pursuant to Condition 6(b) prior to the Final Maturity Date, then up to (and including) the date falling ten calendar days before the date fixed for redemption thereof pursuant to Condition 6(b), unless there shall be a default in making payment in respect of such Bond on any such date fixed for redemption, in which event the Conversion Right shall extend up to (and including) the Brussels business day on which the full amount of such payment becomes available for payment and notice of such availability has been duly given in accordance with Condition 13 (Notices) or, if earlier, the Final Maturity Date or, if the Final Maturity Date is not a Brussels business day and a TARGET Business Day, the immediately preceding day which is a Brussels business day and a TARGET Business Day, provided that, in each case, if such final date for the exercise of Conversion Rights is not a business day in Brussels, then the period for exercise for Conversion Rights by Bondholders shall end on the immediately preceding business day in Brussels.
Conversion Rights may not be exercised in respect of a Bond in respect of which the relevant Bondholder has exercised its right to require the Issuer to redeem that Bond pursuant to Condition 6(d).
The period during which Conversion Rights may (subject as provided below) be exercised by a Bondholder is referred to as the "Conversion Period".
Conversion Rights may only be exercised in respect of the whole of the principal amount of a Bond.
Fractions of Ordinary Shares will not be issued or transferred and delivered on conversion or pursuant to Condition 5(c) and no cash payment or other adjustment will be made in lieu thereof. However, if the Conversion Right in respect of more than one Bond is exercised at any one time such that Ordinary Shares are to be issued or transferred and delivered to the same person, the number of such Ordinary Shares to be issued in respect thereof, and any fraction of an Ordinary Share, shall be calculated by the Calculation Agent on the basis of the aggregate principal amount of such Bonds being so converted.
The Issuer will procure that Ordinary Shares to be issued or transferred and delivered on exercise of Conversion Rights will be issued or transferred and delivered to the holder of the Bonds completing the relevant Conversion Notice or its nominee. Such Ordinary Shares will be issued or transferred and delivered on or before the relevant Delivery Date. Any Additional Ordinary Shares to be issued or transferred and delivered pursuant to Condition 5(c) will be deemed to be issued or transferred and delivered as of the relevant Additional Ordinary Shares Delivery Date.
(b) Adjustment of Conversion Price
Upon the happening of any of the events described below, the Conversion Price shall be adjusted by the Calculation Agent as follows:
(i) If and whenever there shall be a consolidation, reclassification, redesignation or subdivision in relation to the Ordinary Shares which alters the number of Ordinary Shares in issue, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to such consolidation, reclassification, redesignation or subdivision by the following fraction:
B where:
Such adjustment shall become effective on the date the consolidation, reclassification, redesignation or subdivision, as the case may be, takes effect.
(ii) If and whenever the Issuer shall issue any Ordinary Shares to Shareholders credited as fully paid by way of capitalisation of profits or reserves (including any amount of any share premium account or capital redemption reserve) other than where any such issue of Ordinary Shares is determined to constitute a cash Dividend pursuant to paragraph (a) of the definition of "Dividend", the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to such issue by the following fraction:
$$\underline{\mathbf{A}}$$
$$\mathbf{B}$$
where:
Such adjustment shall become effective on the date of issue of such Ordinary Shares.
(iii)
A where:
Such adjustment shall become effective on the Effective Date.
For the purposes of this sub-paragraph 5(b)(iii)(A), "Effective Date" means the later of (i) the Ex-Date in respect of the relevant Dividend and (ii) the first date upon which the Fair Market Value of the relevant Dividend is capable of being determined as provided herein.
(B) For the purposes of the above, Fair Market Value shall (subject as provided in paragraph (a) of the definition of "Dividend" and in the definition of "Fair Market Value") be determined as at the Ex-Date relating to the relevant Dividend.
(iv) If and whenever the Issuer or any Subsidiary of the Issuer or (at the direction or request or pursuant to any arrangements with the Issuer or any Subsidiary of the Issuer) any other company, person or entity shall issue to Shareholders as a class by way of rights, or shall issue or grant to Shareholders as a class by way of rights, any options, warrants or other rights to subscribe for or purchase or otherwise acquire any Ordinary Shares, or any Securities which by their terms of issue carry (directly or indirectly) rights of conversion into, or exchange or subscription for, or the right to otherwise acquire, any Ordinary Shares (or shall grant any such rights in respect of existing Securities so issued), in each case at a consideration receivable per Ordinary Share (based, where appropriate, on such number of Ordinary Shares as is determined pursuant to the definition of "C" and the proviso below) which is less than 95 per cent. of the Current Market Price per Ordinary Share on the Ex-Date in respect of the relevant issue or grant, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to the Effective Date by the following fraction:
$$\frac{\mathbf{A} + \mathbf{B}}{\cdot}$$
A C
where:
A is the number of Ordinary Shares in issue on such Ex-Date;
provided that if on such Ex-Date such number of Ordinary Shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time, then for the purposes of this sub-paragraph (b)(iv), "C" shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at such Ex-Date and as if such conversion, exchange, subscription, purchase or acquisition had taken place on such Ex-Date.
Such adjustment shall become effective on the Effective Date.
For the purposes of this sub-paragraph 5(b)(iv), the "Effective Date" means the later of (i) the Ex-Date in respect of the relevant issue or grant and (ii) the first date upon which the adjusted Conversion Price is capable of being determined in accordance with this subparagraph (b)(iv).
(v) If and whenever the Issuer or any Subsidiary of the Issuer or (at the direction or request or pursuant to any arrangements with the Issuer or any Subsidiary of the Issuer) any other company, person or entity shall (other than where such issue is determined to constitute a cash Dividend pursuant to paragraph (a) of the definition "Dividend") issue any Securities (other than Ordinary Shares or options, warrants or other rights to subscribe for or purchase or otherwise acquire Ordinary Shares or Securities which by their terms carry (directly or indirectly) rights of conversion into, or exchange or subscription for, or the right to otherwise acquire, Ordinary Shares) to Shareholders as a class by way of rights or grant to Shareholders as a class by way of rights any options, warrants or other rights to subscribe for or purchase or otherwise acquire any Securities (other than Ordinary Shares or options, warrants or other rights to subscribe for or purchase or otherwise acquire any Ordinary Shares or any Securities which by their terms carry (directly or indirectly) rights of conversion into, or exchange or subscription for, or the right to otherwise acquire, Ordinary Shares), the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to the Effective Date by the following fraction:
A A B
where:
Such adjustment shall become effective on the Effective Date.
For the purposes of this sub-paragraph 5(b)(v), "Effective Date" means the later of (i) the Ex-Date in respect of the relevant issue or grant and (ii) the first date upon which the adjusted Conversion Price is capable of being determined in accordance with this sub-paragraph (b)(v).
(vi) If and whenever the Issuer shall issue (otherwise than as mentioned in sub-paragraph (b)(iv) above) wholly for cash or for no consideration any Ordinary Shares (other than Ordinary Shares issued on conversion of the Bonds (which term shall for this purpose include any Further Bonds) or on the exercise of any rights of conversion into, or exchange or subscription for or purchase of, or rights to otherwise acquire, Ordinary Shares and other than where it is determined to constitute a cash Dividend pursuant to paragraph (a) of the definition of "Dividend") or if and whenever the Issuer or any Subsidiary of the Issuer or (at the direction or request or pursuant to any arrangements with the Issuer or any Subsidiary of the Issuer) any other company, person or entity shall issue or grant (otherwise than as mentioned in subparagraph (b)(iv) above) wholly for cash or for no consideration any options, warrants or other rights to subscribe for or purchase or otherwise acquire any Ordinary Shares (other than the Bonds, which term shall for this purpose include any Further Bonds), in each case at a price per Ordinary Share (based, where appropriate, on such number of Ordinary Shares as is determined pursuant to the definitions of "C" and the proviso below) which is less than 95 per cent. of the Current Market Price per Ordinary Share on the date of the first public announcement of the terms of such issue or grant, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to the Effective Date by the following fraction:
A C A B
where:
provided that if on the date of first public announcement of the terms of such issue or grant (as used in this sub-paragraph (b)(vi), the "Specified Date") such number of Ordinary Shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time, then for the purposes of this subparagraph (b)(vi), "C" shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at the Specified Date and as if such conversion, exchange, subscription, purchase or acquisition had taken place on the Specified Date.
Such adjustment shall become effective on the Effective Date.
For the purposes of this sub-paragraph 5(b)(vi), "Effective Date" means the later of (i) the date of issue of such Ordinary Shares or, as the case may be, the issue or grant of such options, warrants or rights and (ii) the first date upon which the adjusted Conversion Price is capable of being determined in accordance with this sub-paragraph (b)(vi).
(vii) If and whenever the Issuer or any Subsidiary of the Issuer or (at the direction or request of or pursuant to any arrangements with the Issuer or any Subsidiary of the Issuer) any other company, person or entity shall (otherwise than as mentioned in sub-paragraphs (b)(iv), (b)(v) or (b)(vi) above) issue wholly for cash or for no consideration any Securities (other than the Bonds which term shall for this purpose exclude any Further Bonds and other than where such issue of Securities is determined to constitute a cash Dividend pursuant to paragraph (a) of the definition of "Dividend") which by their terms of issue carry (directly or indirectly) rights of conversion into, or exchange or subscription for, purchase of, or rights to otherwise acquire, Ordinary Shares (or shall grant wholly for cash or for no consideration any such rights in respect of existing Securities so issued) or Securities which by their terms might be reclassified or redesignated as Ordinary Shares, and the consideration per Ordinary Share (based, where appropriate, on such number of Ordinary Shares as is determined pursuant to the definition of "C" and the proviso below) receivable upon conversion, exchange, subscription, purchase, acquisition, reclassification or redesignation is less than 95 per cent. of the Current Market Price per Ordinary Share on the date of the first public announcement of the terms of the issue of such Securities (or the terms of such grant), the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to the Effective Date by the following fraction:
A C A B
where:
provided that if on the date of first public announcement of the terms of the issue of such Securities (or the terms of such grant)) (as used in this sub-paragraph (b)(vii), the "Specified Date") such number of Ordinary Shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time (which may be when such Securities are converted or exchanged or rights of subscription, purchase or acquisition are exercised or, as the case may be, such Securities are reclassified or redesignated or at such other time as may be provided), then for the purposes of this subparagraph (b)(vii), "C" shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at the Specified Date and as if such conversion, exchange, subscription, purchase, acquisition, reclassification or, as the case may be, redesignation had taken place on the Specified Date.
Such adjustment shall become effective on the Effective Date.
For the purposes of this sub-paragraph (b)(vii), "Effective Date" means the date which is later of (i) the date of issue of such Securities or, as the case may be, the grant of such rights and (ii) the first date upon which the adjusted Conversion Price is capable of being determined in accordance with this sub-paragraph (b)(vii).
(viii) If and whenever there shall be any modification of the rights of conversion, exchange, subscription, purchase or acquisition attaching to any Securities (other than the Bonds, which term shall for this purpose include any Further Bonds) which by their terms of issue carry (directly or indirectly) rights of conversion into, or exchange or subscription for, or the right to purchase or otherwise acquire, any Ordinary Shares (other than in accordance with the terms (including terms as to adjustment) applicable to such Securities upon issue) so that following such modification the consideration per Ordinary Share (based, where appropriate, on such number of Ordinary Shares as is determined pursuant to the definition of "C" and the proviso below) receivable upon conversion, exchange, subscription, purchase or acquisition has been reduced and is less than 95 per cent. of the Current Market Price per Ordinary Share on the date of the first public announcement of the terms for such modification, the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately prior to the Effective Date by the following fraction:
$$\underline{\mathbf{A} + \mathbf{B}}$$
A C
where:
provided that if on the date of first public announcement of the terms of such modification (as used in this sub-paragraph (b)(viii), the "Specified Date") such number of Ordinary Shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time (which may be when such Securities are converted or exchanged or rights of subscription, purchase or acquisition are exercised or at such other time as may be provided), then for the purposes of this sub-paragraph (b)(viii), "C" shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at the Specified Date and as if such conversion, exchange, subscription, purchase or acquisition had taken place on the Specified Date.
Such adjustment shall become effective on the Effective Date.
For the purposes of this sub-paragraph (b)(viii), "Effective Date" means the later of (i) the date of modification of the rights of conversion, exchange, subscription, purchase or acquisition attaching to such Securities and (ii) the first date upon which the adjusted Conversion Price is capable of being determined in accordance with this sub-paragraph (b)(viii).
(ix) If and whenever the Issuer or any Subsidiary of the Issuer or (at the direction or request of or pursuant to any arrangements with the Issuer or any Subsidiary of the Issuer) any other company, person or entity shall offer any Ordinary Shares or Securities in connection with which Shareholders as a class are entitled to participate in arrangements whereby such Ordinary Shares or Securities may be acquired by them (except where the Conversion Price falls to be adjusted under sub-paragraphs (b)(ii), (b)(iii), (b)(iv), (b)(v), (b)(vi) or (b)(vii) above or (b)(x) below (or, where applicable, would fall to be so adjusted if the relevant issue or grant was at less than 95 per cent. of the Current Market Price per Ordinary Share on the relevant day)), the Conversion Price shall be adjusted by multiplying the Conversion Price in force immediately before the Effective Date by the following fraction:
$$\underline{\mathbf{A} - \mathbf{B}}$$
$$\mathbf{A}$$
where:
Such adjustment shall become effective on the Effective Date.
For the purposes of this sub-paragraph 5(b)(ix), "Effective Date" means the later of (i) the Ex-Date in respect of the relevant offer and (ii) the first date upon which the adjusted Conversion Price is capable of being determined in accordance with this sub-paragraph (b)(ix).
(x) If a Change of Control shall occur, then upon any exercise of Conversion Rights where the Conversion Date falls (a) during the Change of Control Period or (b) (where the Issuer gives an Optional Redemption Notice in respect of the Bonds within 45 dealing days following the end of the Change of Control Period) on or after the date such Optional Redemption Notice is given and prior to the date which on such date is scheduled to be the 10th dealing day prior to the Optional Redemption Date the Conversion Price for the purpose of such exercise (the "Change of Control Conversion Price"), shall be determined as set out below:
COCCP = CP/(1+ (Pr x c/t))
where:
| COCCP | = | means the Change of Control Conversion Price |
|---|---|---|
| CP | = | means the Conversion Price in effect on the relevant Conversion Date |
| Pr | = | means [●] per cent. |
| c | = | means the number of days from and including the date the Change of Control occurs to but excluding the Final Maturity Date |
| t | = | means the number of days from and including the Closing Date to but excluding the Final Maturity Date |
This Condition 5(b)(x) will only become effective if and when the Change of Control Resolutions are approved and filed with the clerk's office of the competent Enterprise Court in accordance with the provisions of the Belgian Companies and Associations Code.
(xi) If the Issuer (following consultation with the Calculation Agent) determines that an adjustment should be made to the Conversion Price (or that a determination should be made as to whether an adjustment should be made) as a result of one or more circumstances not referred to above in this Condition 5(b) (even if the relevant circumstance is specifically excluded from the operation of sub-paragraphs (b)(i) to (x) above), the Issuer shall, at its own expense and acting reasonably, request an Independent Adviser to determine, in consultation with the Calculation Agent, if different as soon as practicable what adjustment (if any) to the Conversion Price is fair and reasonable to take account thereof and the date on which such adjustment (if any) should take effect and upon such determination such adjustment (if any) shall be made and shall take effect in accordance with such determination, provided that an adjustment shall only be made pursuant to this sub-paragraph (b)(xi) if such Independent Adviser is so requested to make such a determination not more than 21 days after the date on which the relevant circumstance arises and if the adjustment would result in a reduction of the Conversion Price.
Notwithstanding the foregoing provisions:
For the purpose of any calculation of the consideration receivable or price pursuant to sub-paragraphs (b)(iv), (b)(vi), (b)(vii) and (b)(viii), the following provisions shall apply:
the whole) of the consideration or price received or receivable for such Securities or, as the case may be, for such options, warrants or rights which are attributed by the Issuer to such rights of subscription or, as the case may be, such options, warrants or rights or, if no part of such consideration or price is so attributed, the Fair Market Value of such rights of subscription or, as the case may be, such options, warrants or rights as at the relevant Ex-Date referred to in sub-paragraph (b)(iv) or the relevant date of first public announcement referred to in sub-paragraph (b)(vi), (b)(vii) or (b)(viii), as the case may be, plus in the case of each of (x) and (y) above, the additional minimum consideration receivable or price (if any) upon the conversion or exchange of such Securities, or upon the exercise of such rights of subscription attached thereto or, as the case may be, upon exercise of such options, warrants or rights and (z) the consideration receivable or price per Ordinary Share upon the conversion or exchange of, or upon the exercise of such rights of subscription attached to, such Securities or, as the case may be, upon the exercise of such options, warrants or rights shall be the aggregate consideration or price referred to in (x) or (y) above (as the case may be) divided by the number of Ordinary Shares to be issued upon such conversion or exchange or exercise at the initial conversion, exchange or subscription price or rate, all as determined by the Calculation Agent;
If the Delivery Date in relation to the conversion of any Bond shall be after the record date in respect of any consolidation, reclassification, redesignation or sub-division as is mentioned in Condition 5(b)(i), or after the record date or other due date for the establishment of entitlement for any such issue, distribution, grant or offer (as the case may be) as is mentioned in Condition 5(b)(ii), (iii), (iv), (v) and (ix), or after the date of the first public announcement of the terms of any such issue or grant as is mentioned in Condition 5(b)(vi) and (vii) or of the terms of any such modification as is
mentioned in Condition 5(b)(viii), in any case in circumstances where the relevant Conversion Date falls before the relevant adjustment to the Conversion Price becomes effective under Condition 5(b) (such adjustment, a "Retroactive Adjustment") as determined by the Calculation Agent, then the Issuer shall procure that there shall be issued or transferred and delivered to the converting Bondholder, in accordance with the instructions contained in the Conversion Notice, such additional number of Ordinary Shares (if any) as determined by the Calculation Agent or an Independent Adviser (the "Additional Ordinary Shares") as, together with the Ordinary Shares issued or to be transferred and delivered on conversion of the relevant Bond, is equal to the number of Ordinary Shares which would have been required to be issued or transferred and delivered on conversion of such Bond as if the relevant adjustment to the Conversion Price had been made and become effective immediately prior to the relevant Conversion Date, all as determined by the Calculation Agent or an Independent Adviser, provided that if in the case of sub-paragraph 5(b)(ii), (iii), (iv), (v) or (ix) the relevant Bondholder shall be entitled to receive the relevant Ordinary Shares, Dividends or Securities in respect of the Ordinary Shares to be issued or delivered to it, then no such Retroactive Adjustment shall be made in relation to the relevant event and the relevant Bondholder shall not be entitled to receive Additional Ordinary Shares in relation thereto.
Adjustments to the Conversion Price shall be calculated by the Calculation Agent upon request from the Issuer, and/or, to the extent so specified in these Conditions, in good faith by an Independent Adviser. Adjustments to the Conversion Price calculated by the Calculation Agent or, where applicable, an Independent Adviser and any other determinations made by the Calculation Agent or, where applicable, an Independent Adviser, or an opinion of an Independent Adviser, pursuant to these Conditions shall in each case be made in good faith and shall be final and binding (in the absence of manifest error) on the Issuer, the Bondholders, the Calculation Agent (if any) and the Paying and Conversion Agents. The Calculation Agent may consult, at the expense of the Issuer, on any matter (including, but not limited to, any legal matter), any legal or other professional adviser and it shall be able to rely upon, and it shall not be liable and shall incur no liability as against the Bondholders or the Paying and Conversion Agents in respect of anything done, or omitted to be done, relating to that matter in good faith in accordance with that adviser's opinion.
The Calculation Agent shall act solely upon the request from, and exclusively as agent of, the Issuer and in accordance with these Conditions. Neither the Calculation Agent (acting in such capacity) nor any Independent Adviser appointed in connection with the Bonds (acting in such capacity) will thereby assume any obligations towards or relationship of agency or trust with, and shall not be liable and shall incur no liability in respect of anything done, or omitted to be done in good faith, in its capacity as Calculation Agent as against the Bondholders or the Paying and Conversion Agents.
If following consultation with the Calculation Agent any doubt shall arise as to whether an adjustment falls to be made to the Conversion Price or as to the appropriate adjustment to the Conversion Price, and following consultation between the Issuer and an Independent Adviser, a written opinion of such Independent Adviser in respect thereof shall be conclusive and binding on the Issuer, the Paying and Conversion Agents and the Bondholders, save in the case of manifest error.
No adjustment will be made to the Conversion Price (i) where Ordinary Shares are issued or granted pursuant to (A) the exercise of any of the subscription rights, named "LDA Warrants" (Droits de Souscription de LDA), that were issued by decision of the Issuer's extraordinary general shareholders' meeting held on 22 July 2020, or (B) the exercise of any of the subscription rights, named "Class A Share Lending Warrants" (Droits de Souscription pour Prêt d'Action de Catégorie A), "Class B Share Lending Warrants" (Droits de Souscription pour Prêt d'Action de Catégorie B) and "Class C Share Lending Warrants" (Droits de Souscription pour Prêt d'Action de Catégorie C) that were issued by decision of the Issuer's extraordinary general shareholders' meeting held on 7 September 2020, or (ii) where Ordinary Shares or other Securities (including rights, warrants and options) are issued, offered, exercised, allotted, purchased, appropriated, modified or granted to, or for the benefit of, employees, former employees, independent service providers providing services on a more than halftime basis, or former independent service providers providing services on a more than halftime basis (including, in each case, directors holding or formerly holding a mandate or executive office or the personal service company of any such person) or their spouses or relatives, in each case, of the Issuer or any of its Subsidiaries or any associated company or to a trustee or trustees to be held for the benefit of any such person, in any such case pursuant to any share or option scheme or pursuant to any dividend reinvestment plan or similar plan or scheme.
On any adjustment, the resultant Conversion Price, if not an integral multiple of €0.0001, shall be rounded down to the nearest whole multiple of €0.0001. No adjustment shall be made to the Conversion Price where such adjustment (rounded down if applicable) would be less than one per cent. of the Conversion Price then in effect. Any adjustment not required to be made and/or any amount by which the Conversion Price has been rounded down, shall be carried forward and taken into account in any subsequent adjustment, and such subsequent adjustment shall be made on the basis that the adjustment not required to be made had been made at the relevant time and/or, as the case may be, that the relevant rounding down had not been made.
Notice of any adjustments to the Conversion Price shall be given by the Issuer to Bondholders in accordance with Condition 13 (Notices).
The Issuer undertakes that it shall not take any action, and shall procure that no action is taken, that would otherwise result in an adjustment to the Conversion Price to below the nominal value or fractional value of an Ordinary Share or any minimum level permitted by applicable laws or regulations.
(g) Change of Control
Within ten calendar days following the occurrence of a Change of Control, the Issuer shall give notice thereof to the Bondholders in accordance with Condition 13 (Notices) (a "Change of Control Put Event Notice") and shall, at the same time, provide a copy of the Change of Control Put Event Notice to the Paying and Conversion Agent. The Change of Control Put Event Notice shall contain a statement informing Bondholders of their entitlement to exercise their Conversion Rights as provided in these Conditions and their entitlement to exercise their rights to require redemption of their Bonds pursuant to Condition 6(d) (in each case, provided that the Change of Control Resolutions have been approved and filed in accordance with Article 7:151 of the Belgian Companies and Associations Code).
The Change of Control Put Event Notice shall also specify:
Conversion Rights may be exercised by a Bondholder during the Conversion Period by delivering to the specified office of any Paying and Conversion Agent, during its usual business hours, a duly completed and signed notice of conversion (a "Conversion Notice") in the form (for the time being current) obtainable from any Paying and Conversion Agent, and by transferring to the Paying and Conversion Agent the Bonds to be converted to such securities account specified by such Paying and Conversion Agent. Conversion Rights shall be exercised subject in each case to any applicable fiscal or other laws or regulations applicable in Belgium.
If such delivery is made after the end of normal business hours or on a day which is not a Brussels business day, such delivery shall be deemed for all purposes of these Conditions to have been made on the next following such Brussels business day.
Any determination as to whether a Conversion Notice has been duly completed and properly delivered shall be made by the relevant Paying and Conversion Agent and shall, save in the case of manifest error, be conclusive and binding on the Issuer, the Paying and Conversion Agents and the relevant Bondholder.
A Conversion Notice, once delivered, shall be irrevocable. A Conversion Notice can be deemed received by the Paying, Transfer and Conversion Agent if sent by electronic means.
The conversion date in respect of a Bond (the "Conversion Date") shall be the business day in Brussels immediately following the date of the delivery of the relevant Bond and the Conversion Notice as provided in this Condition 5(h) and, if applicable, the making of any payment to be made as provided in the next following paragraph.
A Bondholder exercising Conversion Rights must pay directly to the relevant authorities any capital, stamp, issue and registration and transfer taxes and duties arising on the exercise of Conversion Rights (other than any capital, stamp, issue, registration and transfer taxes and duties payable in Belgium, or in any other jurisdiction in which the Issuer may be domiciled or resident or to whose taxing jurisdiction it may be generally subject, in respect of the issue or transfer and delivery of any Ordinary Shares in respect of such exercise (including any Additional Ordinary Shares), which shall be paid by the Issuer). If the Issuer shall fail to pay any taxes and capital, stamp, issue and registration and transfer taxes and duties payable for which it is responsible as provided above, the relevant holder shall be entitled to tender and pay the same and the Issuer, as a separate and independent stipulation, covenants to reimburse and indemnify each Bondholder in respect of any payment thereof and any penalties payable in respect thereof.
Such Bondholder must also pay all, if any, taxes imposed on it and arising by reference to any disposal or deemed disposal of a Bond or interest therein in connection with the exercise of Conversion Rights by it.
Following delivery of a duly completed and signed Conversion Notice, the Issuer shall on the Delivery Date procure that all such Ordinary Shares to be delivered in satisfaction of the relevant Conversion Right be credited to such securities account of the relevant Bondholder(s) as is specified in the relevant Conversion Notice.
The Delivery Date in respect of a Bond shall be (i) the last dealing day of the calendar month in which the relevant Conversion Notice was delivered to the Paying and Conversion Agent, if the relevant Conversion Notice is delivered on or before the 15th calendar day of the calendar month, or (ii) the last dealing day of the calendar month immediately following the calendar month in which the relevant Conversion Notice was delivered, if the Conversion Notice is delivered to the Paying and Conversion Agent from the 16th day up to and including the last calendar day of any calendar month.
The Additional Ordinary Shares Delivery Date in respect of the Additional Ordinary Shares shall be (i) the last dealing day of the calendar month in which the relevant Retroactive Adjustment occurs, if such Retroactive Adjustment occurs on or before the 15th calendar day of the calendar month, (ii) the last dealing day of the calendar month immediately following the calendar month in which the relevant Retroactive Adjustment occurs, if such Retroactive Adjustment occurs from the 16st calendar day up to and including the last calendar day of any calendar month, or (iii) the date of issue of Ordinary Shares, if the Retroactive Adjustment results from the issue of Ordinary Shares.
Notwithstanding the foregoing, the Issuer may procure the delivery of Ordinary Shares and/or Additional Ordinary Shares before the relevant Delivery Date and/or the relevant Additional Ordinary Shares Delivery Date, as the case may be, provided that all Bondholders who have validly served Conversion Notices within the applicable time periods specified herein are treated equally.
If any notice requiring the redemption of Bonds is given pursuant to Condition 6(b) on or after the fifteenth Brussels business day prior to a record date which has occurred since the last Interest Payment Date (or in the case of the first Interest Period, since the Closing Date) in respect of any Dividend or distribution payable in respect of the Ordinary Shares where such notice specifies a date for redemption falling on or prior to the date which is 14 days after the Interest Payment Date next following such record date, interest shall accrue at the rate provided in Condition 4(a) on Bonds in respect of which Conversion Rights shall have been exercised and in respect of which the Conversion Date falls after such record date and on or prior to the Interest Payment Date next following such record date in respect of such Dividend or distribution, in each case from and including the preceding Interest Payment Date (or, if such Conversion Date falls before the first Interest Payment Date, from the Closing Date) to but excluding such Conversion Date. The Issuer shall pay any such interest by not later than 14 days after the relevant Conversion Date by transfer to a euro account with a bank with access to the TARGET 2 System in accordance with instructions given by the relevant Bondholder in the relevant Conversion Notice.
The Issuer or any Subsidiary of the Issuer may exercise such rights as it may from time to time enjoy to purchase or redeem or buy back any shares of the Issuer (including Ordinary Shares) or any depositary or other receipts or certificates representing the same without the consent of the Bondholders.
Neither the Paying and Conversion Agent nor the Calculation Agent shall be under any duty to monitor whether any event or circumstance has happened or exists or may happen or exist and which requires or may require an adjustment to be made to the Conversion Price and will not be responsible or liable to any person for any loss arising from any failure by it to do so, nor shall the Paying and Conversion Agent or the Calculation Agent be responsible or liable to any person (other than in the case of the Calculation Agent, to the Issuer strictly in accordance with the relevant provisions of the Calculation Agency Agreement) for any determination of whether or not an adjustment to the Conversion Price is required or should be made nor as to the determination or calculation of any such adjustment.
Without prejudice to Condition 5(b)(x), in the case of any consolidation, amalgamation or merger of the Issuer with any other corporation (other than a consolidation, amalgamation or merger in which the Issuer is the continuing corporation), or in the case of any sale or transfer of all, or substantially all, of the assets of the Issuer, the Issuer will forthwith give notice thereof to the Bondholders in accordance with Condition 13 (Notices) of such event and take such steps as shall be required to ensure that each Bond then outstanding will (during the period in which Conversion Rights may be exercised) be convertible into the class and amount of shares and other Securities and property receivable upon such consolidation, amalgamation, merger, sale or transfer by a holder of the number of Ordinary Shares which would have become liable to be issued or transferred and delivered upon exercise of Conversion Rights immediately prior to such consolidation, amalgamation, merger, sale or transfer. The above provisions of this Condition 5(m) will apply, mutatis mutandis to any subsequent consolidations, amalgamations, mergers, sales of transfers.
Unless previously purchased and cancelled, redeemed or converted as herein provided, the Bonds will be redeemed at their principal amount on the Final Maturity Date. The Bonds may only be redeemed at the option of the Issuer prior to the Final Maturity Date in accordance with Condition 6(b), and may only be redeemed by Bondholders prior to the Final Maturity Date in accordance with Condition 6(d).
(b) Redemption at the Option of the Issuer
Subject as provided in Condition 6(c), on giving not less than 30 nor more than 60 days' notice (an "Optional Redemption Notice") to the Paying and Conversion Agent and to the Bondholders in accordance with Condition 13 (Notices), the Issuer may redeem all but not some only of the Bonds on the date (the "Optional Redemption Date") specified in the Optional Redemption Notice at their principal amount, together with accrued but unpaid interest to such date:
(i) at any time on or after [●] 2024 (the "First Call Date"), if the Parity Value on each of at least 20 dealing days in any period of 30 consecutive dealing days ending not earlier than five dealing days prior to the giving of the relevant Optional Redemption Notice, shall have exceeded €130,000, as verified by the Calculation Agent upon request by the Issuer; and
The Issuer shall not give an Optional Redemption Notice at any time during a Change of Control Period or an Offer Period or which specifies a date for redemption falling in a Change of Control Period or an Offer Period or the period of 21 days following the end of a Change of Control Period or an Offer Period (whether or not the relevant notice was given prior to or during such Offer Period), and any such notice shall be invalid and of no effect (whether or not given prior to the relevant Change of Control Period or Offer Period) and the relevant redemption shall not be made.
Any Optional Redemption Notice shall be irrevocable. Any such notice shall specify (i) the Optional Redemption Date which shall be a day which is a Brussels business day and a TARGET Business Day, (ii) the Conversion Price, the aggregate principal amount of the Bonds outstanding and the Closing Price of the Ordinary Shares, in each case as at the latest practicable date prior to the publication of the Optional Redemption Notice and (iii) the last day on which Conversion Rights may be exercised by Bondholders
"Offer Period" means any period commencing on the date of the first public announcement of an offer or tender (howsoever described) by any person or persons in respect of all or a majority of the issued and outstanding Ordinary Shares and ending on the date that offer ceases to be open for acceptance or, if earlier, on which that offer lapses or terminates.
(d) Redemption at the Option of Bondholders
Following the occurrence of a Change of Control, the holder of each Bond will have the right to require the Issuer to redeem that Bond on the Change of Control Put Date at its principal amount, together with accrued and unpaid interest to such date. To exercise such right, the holder of the relevant Bond must deliver to the specified office of the Paying and Conversion Agent a duly completed and signed notice of exercise in the form for the time being current obtainable from the specified office of any Paying and Conversion Agent (a "Change of Control Put Exercise Notice"), at any time during the relevant Change of Control Period, and shall transfer the Bond to be redeemed to the securities account specified by the Paying and Conversion Agent.
The "Change of Control Put Date" shall be the fourteenth Brussels business day after the expiry of the Change of Control Period.
Payment in respect of any such Bond shall be made by transfer to a euro account with a bank with access to the TARGET 2 System as specified by the relevant Bondholder in the relevant Change of Control Put Exercise Notice.
A Change of Control Put Exercise Notice, once delivered, shall be irrevocable and the Issuer shall redeem all Bonds that are the subject of Change of Control Put Exercise Notices delivered as aforesaid on the Change of Control Put Date.
This Condition 6(d) will only become effective if and when the Change of Control Resolutions are approved and filed with the clerk's office of the competent Enterprise Court in accordance with the provisions of the Belgian Companies and Associations Code.
(e) Redemption if the Change of Control Resolutions are not passed
If the Change of Control Resolutions are not, on or before the Long Stop Date (i) adopted at a general meeting of the Shareholders of the Issuer and (ii) filed with the clerk's office of the competent Enterprise Court in accordance with the provisions of the Belgian Companies and Associations Code, each Bond will become due and payable, and the Issuer shall redeem each Bond, on the date falling 45 days after the Long Stop Date at 102 per cent. of the higher of (i) its principal amount and (ii) the Fair Bond Value, together in each case with accrued but unpaid interest to (but excluding) such date. If the Bonds become due and payable in accordance with this Condition 6(e), the Issuer shall give notice thereof to the Paying and Conversion Agent and to the Bondholders in accordance with Condition 13 (Notices) not later than two Brussels business days after the Long Stop Date.
"Early Redemption Calculation Period" means the period of five consecutive dealing days commencing on the third dealing day following the Long Stop Date.
"Fair Bond Value" means, in respect of each €100,000 principal amount of a Bond, as determined by an Independent Adviser, the arithmetic average (rounded to the nearest whole multiple of €0.01, with €0.005 being rounded upwards) of the fair market values (as determined by such Independent Adviser in good faith to be appropriate on the basis of a commonly accepted market valuation method and taking account of such factors as it considers appropriate, including without limitation the market price per Ordinary Share, the dividend yield of an Ordinary Share, the volatility of such market price, prevailing interest rates, the credit spread on other relevant bonds of the Issuer (if any) and the terms of the Bonds, and assuming for this purpose that the Change of Control Resolutions had been adopted and filed as aforesaid prior to the start of the Early Redemption Calculation Period) at the close of business on each dealing day during the Early Redemption Calculation Period.
(f) Purchase
Subject to the requirements (if any) of any stock exchange on which the Bonds may be admitted to listing and trading at the relevant time and subject to compliance with applicable laws and regulations, the Issuer or any Subsidiary of the Issuer may at any time purchase any Bonds in the open market or otherwise at any price.
(g) Cancellation
All Bonds which are redeemed or in respect of which Conversion Rights are exercised will be cancelled and may not be reissued or resold. Bonds purchased by the Issuer or any of its Subsidiaries may not be reissued or re-sold.
(h) Multiple Notices
If more than one notice of redemption is given pursuant to this Condition 6, the first of such notices to be given shall prevail, save that a notice given pursuant to Condition 6(e) shall prevail over a notice given pursuant to Condition 6(b) or 6(d) in circumstances where the Optional Redemption Date or the Change of Control Put Date (as the case may be) falls after the Long Stop Date.
Without prejudice to the Belgian Companies and Associations Code, payment of principal in respect of the Bonds, payment of accrued interest payable on a redemption of the Bonds and payment of any interest due on an Interest Payment Date in respect of the Bonds will be made through the NBB-SSS in accordance with the NBB-SSS Regulations.
Unless instructed otherwise by the Paying and Conversion Agent, the NBB will debit the account of the Paying and Conversion Agent with the NBB for payments due by the Issuer to the Bondholders in accordance with the NBB-SSS Regulations and will be responsible for ensuring that payments are credited to the accounts of the relevant participants with the NBB-SSS.
The payment obligations of the Issuer under the Bonds will be discharged by payment to the NBB in respect of each amount so paid.
All payments in respect of the Bonds are subject in all cases to (i) any applicable fiscal or other laws and regulations applicable thereto in the place of payment and (ii) any withholding or deduction required pursuant to an agreement described in Section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the "Code"), or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations or agreements thereunder or official interpretations thereof ("FATCA") or any law implementing an intergovernmental approach to FATCA.
(c) Paying and Conversion Agents, etc.
The initial Paying and Conversion Agent and its initial specified office is listed below. The Issuer reserves the right under the Agency Agreement at any time to vary or terminate the appointment of any Paying and Conversion Agent and appoint additional or other Paying and Conversion Agents, provided that it will maintain a Paying and Conversion Agent which will at all times be a participant in the NBB-SSS. Notice of any change in the Paying and Conversion Agents or their specified offices will promptly be given by the Issuer to the Bondholders in accordance with Condition 13 (Notices). The Issuer also reserves the right under the Calculation Agency Agreement at any time to vary or terminate the appointment of the Calculation Agent, provided that it will maintain a Calculation Agent which shall be a financial institution of international repute or a financial adviser with appropriate expertise. Notice of any change in the Calculation Agent will promptly be given by the Issuer to the Bondholders in accordance with Condition 13 (Notices).
(d) No Charges
None of the Paying and Conversion Agents shall make or impose on a Bondholder any charge or commission in relation to any payment or conversion in respect of the Bonds.
(e) Fractions
When making payments to Bondholders, if the relevant payment is not of an amount which is a whole multiple of the smallest unit of the relevant currency in which such payment is to be made, such payment will be rounded down to the nearest unit.
All payments made by or on behalf of the Issuer in respect of the Bonds will be made free from any restriction or condition and be made without deduction or withholding for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of Belgium or any political subdivision or any authority thereof or therein having power to tax, unless deduction or withholding of such tax, duties, assessments or governmental charges is required to be made by law. The Issuer will not be required to pay any additional or further amounts in respect of such withholding or deduction.
If any of the following events (each an "Event of Default") occurs and is continuing, any Bondholder at its discretion may, give notice to the Issuer at its registered office that its Bonds are, and they shall accordingly immediately become, due and repayable at their principal amount together with accrued interest (if any) to the date of payment:
(g) Illegality: if it becomes unlawful for the Issuer to perform its obligations under the Bonds.
Whilst any Conversion Right remains exercisable, the Issuer will, save with the approval of an Extraordinary Resolution:
unless, in any such case, the same constitutes a Dividend or otherwise falls to be taken into account for a determination as to whether an adjustment is to be made to the Conversion Price pursuant to Condition 5(b), regardless of whether in fact an adjustment falls to be made in respect of the relevant capitalisation or gives rise (or would, but for the provisions of Condition 5(f) relating to roundings and minimum adjustments or the carry forward of adjustments, give rise) to an adjustment to the Conversion Price;
provided that, without prejudice to the other provisions of these Conditions, the Issuer may exercise such rights as it may from time to time be entitled pursuant to applicable law to purchase, redeem or buy back its Ordinary Shares and any depositary or other receipts or certificates representing Ordinary Shares without the consent of Bondholders;
Claims against the Issuer for payment in respect of the Bonds shall be prescribed and become void unless made within ten years (in the case of principal) or five years (in the case of interest) from the appropriate Relevant Date in respect of such payment.
Claims in respect of any other obligation in respect of the Bonds, including the delivery of Shares, shall be prescribed and become void unless made within ten years following the due date for performance thereof.
All meetings of Bondholders will be held in accordance with the provisions on meetings of Bondholders set out in Schedule 1 (Provisions on meetings of Bondholders) to these Conditions (the "Meeting Provisions"). Meetings of Bondholders may be convened to consider matters in relation to the Bonds, including the modification or waiver of the Conditions applicable to the Bonds. For the avoidance of doubt, any modification or waiver of the Conditions applicable to the Bonds shall always be subject to the consent of the Issuer.
A meeting of Bondholders may be convened by the Issuer and shall be convened by the Issuer upon the request in writing of Bondholders holding not less than one tenth of the aggregate nominal amount of the outstanding Bonds.
Any modification or waiver of the Conditions of the Bonds proposed by the Issuer may be made if sanctioned by an Extraordinary Resolution. An "Extraordinary Resolution" means a resolution passed at a meeting of Bondholders duly convened and held in accordance with these Conditions and the Meeting Provisions by a majority of at least 75 per cent. of the votes cast, provided, however, that any such proposal (i) to amend the dates of maturity or redemption of the Bonds or date for payment of interest or interest amounts or to reduce the amount of principal or interest payable on any date in respect of the Bonds, (ii) to assent to an extension of an interest period, a reduction of the applicable interest rate or a modification of the conditions applicable to the payment of interest, (iii) to effect the exchange, conversion or substitution of the Bonds for, or the conversion of the Bonds into, shares, bonds or other obligations or securities of the Issuer or any other person or body corporate formed or to be formed, (iv) to assent to a reduction or cancellation of the nominal amount of the Bonds or a modification of the conditions under which any redemption, substitution or variation may be made, (v) to alter the method of calculating the amount of any payment in respect of the Bonds or the date for any such payment in circumstances not provided for in the Conditions, (vi) to change the currency of any amounts payable in respect of the Bonds, (vii) to modify the provisions concerning the quorum required at any meeting of Bondholders or the majority required to pass an Extraordinary Resolution, (viii) to change any aspect of the Conversion Right or (ix) to amend this proviso, may only be sanctioned by an Extraordinary Resolution passed at a meeting of Bondholders at which one or more persons holding or representing not less than 75 per cent. or, at an adjourned meeting, 25 per cent. of the aggregate principal amount of the outstanding Bonds form a quorum.
Resolutions duly passed by a meeting of Bondholders in accordance with these provisions shall be binding on all Bondholders, whether or not they are present at the meeting and whether or not they vote in favour of such a resolution.
The Meeting Provisions furthermore provide that, for so long as the Bonds are in dematerialised form and settled through the NBB-SSS, in respect of any matters proposed by the Issuer, the Issuer shall be entitled, where the terms of the resolution proposed by the Issuer have been notified to the Bondholders through the relevant clearing systems as provided in the Meeting Provisions, to rely upon approval of such resolution given by way of electronic consents communicated through the electronic communications systems of the relevant clearing system(s) by or on behalf of the holders of not less than 75 per cent. in principal amount of the Bonds outstanding. To the extent such electronic consent is not being sought, the Meeting Provisions provide that, if authorised by the Issuer and to the extent permitted by Belgian law, a resolution in writing signed by or on behalf of holders of Bonds of not less than 75 per cent. of the aggregate nominal amount of the outstanding Bonds shall for all purposes be as valid and effective as an Extraordinary Resolution passed at a meeting of Bondholders duly convened and held, provided that the terms of the proposed resolution shall have been notified in advance to the Bondholders through the relevant clearing system(s). Such a resolution in writing may be contained in one document or several documents in the same form, each signed by or on behalf of one or more Bondholders.
The provisions of these Conditions, the Agency Agreement, the Calculation Agency Agreement and any agreement supplemental to the Agency Agreement and the Calculation Agency Agreement may be amended without the consent of the Bondholders for the purpose of (i) making a modification of a formal, minor or technical nature, (ii) correcting a manifest error, (iii) complying with mandatory provisions of law or (iv) making another modification provided that such modification is consistent with these Conditions and not materially prejudicial to the interests of the Bondholders.
(a) All notices regarding the Bonds will be valid if published through the electronic communication system of Bloomberg. For so long as the Bonds are held by or on behalf of the NBB-SSS, notices to Bondholders may also be delivered to the participants in the NBB-SSS for onward communication to Bondholders in substitution for such publication. Any such notice shall be deemed to have been given to Bondholders on the calendar day after the date on which the said notice was given to the NBB-SSS. The Issuer shall send a copy of all notices given to it to the Bondholders pursuant to these Conditions simultaneously to the Paying and Conversion Agent and the Calculation Agent.
(b) The Issuer shall also ensure that all notices are duly published in a manner which complies with the rules and regulations of any other stock exchange or other relevant authority on which the Bonds are for the time being listed and, in the case of a convening notice for a meeting of Bondholders, in accordance with the Meeting Provisions. Any such notice shall be deemed to have been given on the date of such publication or, if required to be published in more than one newspaper or in more than one manner, on the date of the first such publication in all the required newspapers or in each required manner. If publication as provided above is not practicable, notice will be given in such other manner, and shall be deemed to have been given on such date, as the Issuer may, acting reasonably, decide.
The Issuer may from time to time without the consent of the Bondholders create and issue further notes, bonds or debentures either having the same terms and conditions in all respects as the outstanding notes, bonds or debentures of any series (including the Bonds) or in all respects except for the first payment of interest on them and the first date on which Conversion Rights may be exercised and so that such further issue shall be consolidated and form a single series with the outstanding notes, bonds or debentures of any series (including the Bonds) or upon such terms as to interest, conversion, premium, redemption and otherwise as the Issuer may determine at the time of their issue, so that, for the avoidance of doubt, references in these Conditions to "Closing Date" shall be to the first issue date of the Bonds and references in these Conditions to "Bonds" shall be construed accordingly.
(a) Governing law
These Conditions, the Agency Agreement, the Calculation Agency Agreement, the Clearing Services Agreement and the Bonds and any non-contractual obligations arising out of or in connection with them are governed by, and shall be construed in accordance with, Belgian law.
(b) Jurisdiction
The courts of Brussels, Belgium (French language division) are to have jurisdiction to settle any disputes that may arise out of or in connection with these Conditions, the Agency Agreement, the Calculation Agency Agreement and the Bonds and accordingly any legal action or proceedings arising out of or in connection with any Bonds ("Proceedings") may be brought in such courts. The Issuer irrevocably submits to the jurisdiction of the courts of Brussels, Belgium (French language division). This submission is made for the benefit of each of the holders of the Bonds and shall not affect the right of any of them to take Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not).
Notwithstanding the foregoing, the courts of Brussels, Belgium (French language division) have exclusive jurisdiction over matters concerning the validity of decisions of the Board of Directors of the Issuer, or the general meeting of the shareholders of the Issuer, or the general meeting of Bondholders.
3 A meeting shall, subject to the Conditions and (except in the case of sub-paragraph 3.5) only with the consent of the Issuer and without prejudice to any powers conferred on other persons by this Schedule, have power by Extraordinary Resolution:
provided that the special quorum provisions in paragraph 18 shall apply to any Extraordinary Resolution (a "special quorum resolution") for the purpose of sub-paragraph 3.6 or for the purpose of making a modification to the Conditions, the Bonds or this Schedule which would have the effect (other than in accordance with the Conditions or pursuant to applicable law):
Any modification or waiver of any of the Conditions shall always be subject to the consent of the Issuer.
in each case, if it is not in English, a translation into English), authorize any person to act as its representative (a "representative") in connection with that meeting.
15 The chairman of a meeting shall be such person as the Issuer may nominate in writing, but if no such nomination is made or if the person nominated is not present within 15 minutes after the time fixed for the meeting the Bondholders or agents present shall choose one of their number to be chairman, failing which the Issuer may appoint a chairman. The chairman need not be a Bondholder or agent. The chairman of an adjourned meeting need not be the same person as the chairman of the original meeting.
No one else may attend or speak.
| Purpose of meeting | Any meeting except for a meeting previously adjourned through want of a quorum |
Meeting previously adjourned through want of a quorum |
|---|---|---|
| Required proportion | Required proportion | |
| To pass a special quorum resolution | 75 per cent. | 25 per cent. |
| To pass any Extraordinary Resolution | A clear majority. | No minimum proportion |
| To pass an Ordinary Resolution | 10 per cent. | No minimum proportion |
19 The chairman may with the consent of (and shall if directed by) a meeting adjourn the meeting from time to time and from place to place. Only business which could have been transacted at the original meeting may be transacted at a meeting adjourned in accordance with this paragraph or paragraph 17.
20 At least ten days' notice of a meeting adjourned due to the quorum not being present shall be given in the same manner as for an original meeting and that notice shall state the quorum required at the adjourned meeting. Subject as aforesaid, it shall not be necessary to give any other notice of an adjourned general meeting.
27 An Extraordinary Resolution and an Ordinary Resolution shall be binding on all the Bonds, whether or not present at the meeting, and each of them shall be bound to give effect to it accordingly. The passing of such a resolution shall be conclusive evidence that the circumstances justify its being passed. The Issuer shall give notice of the passing of an Ordinary Resolution or an Extraordinary Resolution to Bondholders within fourteen days but failure to do so shall not invalidate the resolution.
or on behalf of the holders of not less than 75 per cent. in nominal amount of the Bonds outstanding (the "Required Proportion") by the end of normal business hours on the Relevant Date ("Electronic Consent"). Any resolution passed in such manner shall be binding on all Bondholders, even if the relevant consent or instruction proves to be defective. The Issuer shall not be liable or responsible to anyone for such reliance.
For the avoidance of doubt, an Electronic Consent may only be used in relation to a resolution proposed by the Issuer which is not then the subject of a meeting that has been validly convened in accordance with paragraph 6 above, unless that meeting is or shall be cancelled or dissolved.
30.2 To the extent Electronic Consent is not being sought in accordance with paragraph 30.1, a resolution in writing signed by or on behalf of the holders of not less than 75 per cent. in nominal amount of the Bonds outstanding shall for all purposes be as valid and effective as an Extraordinary Resolution or an Ordinary Resolution passed at a meeting of Bondholders duly convened and held, provided that the terms of the proposed resolution have been notified in advance to the Bondholders through the relevant clearing system(s). Such a resolution in writing may be contained in one document or several documents in the same form, each signed by or on behalf of one or more Bondholders. For the purpose of determining whether a resolution in writing has been validly passed, the Issuer shall be entitled to rely on consent or instructions given in writing directly to the Issuer (a) by accountholders in the clearing system(s) with entitlements to the Bonds or (b) where the accountholders hold any such entitlement on behalf of another person, on written consent from or written instruction by the person identified by that accountholder for whom such entitlement is held. For the purpose of establishing the entitlement to give any such consent or instruction, the Issuer shall be entitled to rely on any certificate or other document issued by, in the case of (a) above, the NBB-SSS, Euroclear, Clearstream or any other relevant alternative clearing system (the "relevant clearing system") and, in the case of (b) above, the relevant clearing system and the accountholder identified by the relevant clearing system for the purposes of (b) above. Any resolution passed in such manner shall be binding on all Bondholders, even if the relevant consent or instruction proves to be defective. Any such certificate or other document may comprise any form of statement or print out of electronic records provided by the relevant clearing system (including Euroclear's EUCLID or Clearstream's CreationOnline system) in accordance with its usual procedures and in which the accountholder of a particular principal or nominal amount of Bonds is clearly identified together with
the amount of such holding. The Issuer shall not be liable to any person by reason of having accepted as valid or not having rejected any certificate or other document to such effect purporting to be issued by any such person and subsequently found to be forged or not authentic.
31 A Written Resolution or Electronic Consent shall take effect as an Extraordinary Resolution. A Written Resolution and/or Electronic Consent will be binding on all Bondholders whether or not they participated in such Written Resolution and/or Electronic Consent.
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