Share Issue/Capital Change • Jul 31, 2024
Share Issue/Capital Change
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Rue Edouard Belin 12 B-1435 Mont-Saint-Guibert VAT: BE 0817.149.675 Register of legal entities of Walloon Brabant
(hereinafter the "Company")
Dear shareholders,
This special report is drawn up by the board of directors (the "Board") in accordance with Articles 7:180 juncto 7:179 §1, and 7:191 of the Code of Companies and Associations (the "CCA") with respect to the proposed issuance of warrants (droits de souscription), in the context of a new sharebased incentive plan.
The Board intends to decide, within the framework of the authorised capital and with dis-application of the preferential subscription rights, to issue one million (1,000,000) subscription rights (droits de souscription) (the "Warrants") that can be offered to employees, officers, directors, consultants and advisors of the Company and its subsidiaries from time to time (together the "Group Companies" and each a "Group Company") and any persons who have accepted an offer for employment or to provide professional services to a Group Company.
Each Warrant shall entitle the holder of such Warrant to subscribe for one share in the Company upon exercise of the Warrant. This means that, if the Board indeed decides to issue one million (1,000,000) Warrants, the total number of shares that can be issued by the Company as a result of the exercise of the Warrants shall amount to one million (1,000,000).
The Board proposes to cancel the preferential subscription rights of each existing shareholder, and as far as needed and applicable - of each holder of existing subscription rights (droits de souscription) issued by the Company, in relation to the issuance of the Warrants.
As set out in article 7 of the articles of association of the Company, the extraordinary shareholders' meeting of 12 June 2024 has explicitly authorised the Board to increase the share capital in one or more times with an (aggregate) amount of EUR 3,436,000 in the framework of the authorised capital. Article 7 of the articles of association of the Company provides, inter alia, the following:
"Every capital increase decided upon by the board of directors in the context of authorised capital shall be effected in accordance with the modalities to be determined by the board of director, and may amongst others be achieved (i) by contributions in cash or in kind, or a combination of both, (ii) by capitalisation of reserves, whether available or unavailable for distribution, and capitalisation of issue premiums, (iii) with or without the issuance of new shares (at, above or below the par value and with or without issue premium), with or without voting rights, that will have the rights as will be determined by the board of directors, or (iv) with issuance of convertible bonds or warrants, bonds with warrants or other securities.
The board of directors is authorised, when exercising its powers within the framework of the authorised capital, to restrict or cancel, in the interest of the company, the preferential subscription rights of each shareholder, and - as far as needed and applicable - of each holder of subscription rights issued by the Company. This restriction or cancellation of the preferential subscription rights can also be done in favour of members of the personnel of the company or of its subsidiaries, or in favour of one or more persons other than members of the personnel of the company or of its subsidiaries."
Since the authorization by the extraordinary shareholders' meeting on 12 June 2024, the Board has not yet used the authorised capital.
On the date of this report, the available authorised capital therefore amounts to EUR 3,436,000 (excluding issue premium), which is more than sufficient for the issuance of the Warrants.
Article 7:179 §1 CCA provides that in the event of a capital increase a special report on the transaction must be drawn up by the Board and the statutory auditor of the Company. Article 7:180 CCA provides that, in the event of the issuance of warrants, a special report on the transaction must be drawn up by the Board and the statutory auditor of the Company. Article 7:191 CCA provides that certain additional information needs to be provided in said report in case of issuance of warrants with cancellation of the preferential subscription rights of each existing shareholder, and - as far as needed and applicable - of each holder of existing subscription rights issued by the Company.
In accordance with Article 7:180 juncto 7:179 §1, and 7:191 CCA, the special report of the Board must justify the issue price and describe the consequences of the transaction for the patrimonial and membership rights of the existing shareholders.
The Warrants can be granted by the Board to employees, officers, directors (after approval by the shareholders' meeting for grants of Warrants to directors of the Company as remuneration for their mandate as director), consultants and advisors of any Group Company and any persons who have accepted an offer for employment or to provide professional services to a Group Company.
Apart from members of the personnel (as defined in article 1:27 CCA) of the Group Companies (as the case may be), there are currently no pre-determined beneficiaries of the Warrants.
The 2024 Warrant Plan (as defined below) is organised in accordance with Articles 41 and following of the Law of 26 March 1999 relating to the 1998 Belgian employment action plan setting out various arrangements.
The Warrants will be granted to the beneficiaries free of charge.
Each Warrant entitles its holder to subscribe to one share in the Company at the exercise price determined in accordance with the terms and conditions of the 2024 Warrants Plan.
Unless the Board (or the shareholders' meeting in relation to grants of warrants to directors as remuneration for their mandate as directors) (x) at the time of the grant of the Warrant determines a lower or higher exercise price or (y) after the time of grant lowers or increases the exercise price as previously set (subject to approval by the relevant holder), the exercise price of a Warrant shall be equal to the lowest of the following prices:
In any case, the exercise price may never be below the par value of the existing shares at the date on which the Warrants were issued (being, rounded, EUR 0.1718).
The Board is of the opinion that the aforementioned method to determine the exercise price of the Warrants is justified as it is customary for this type of share-based incentive plan organized in the context of the aforementioned Law of 26 March 1999.
Upon exercise, the portion of the exercise price up to EUR 0.1718 (being the current, rounded, par value of the existing shares) shall be recorded as capital. The portion of the exercise price exceeding the current par value shall be recorded as issue premium on a separate unavailable account on the passive side of the balance sheet called "issue premiums".
The other terms and conditions of the Warrants are set out in the "2024 Warrants Plan" attached to this report as Annex 1.
On the date of this report, the registered capital of the Company amounts to EUR 5,904,962.41 and is represented by 34,373,015 shares, without nominal value.
In addition, on 30 June 2024 there were 2,155,975 subscription rights (droits de souscription) outstanding (the "Existing Warrants") that have been issued by the Company under existing sharebased incentive plans1 , entitling the warrant holders to subscribe to in aggregate 2,205,875 new
1 The warrants of the Company issued on 12 December 2018 under the 2018 Warrants Plan, on 21 February 2020 under the 2020 Warrants Plan, on 8 September 2021 under the 2021 Warrants Plan and on 28 December 2022 under the 2022 Warrants Plan.
shares in the Company upon exercise, in accordance with the conditions applicable to the relevant subscription rights. Of such Existing Warrants, (i) 1,897,081 warrants have been granted and accepted, entitling the warrant holders to subscribe to in aggregate 1,946,981 new shares in the Company upon exercise (the "Granted Existing Warrants") and (ii) 258,894 warrants are still available for grant, entitling the warrant holders (if granted and accepted) to subscribe to in aggregate 258,894 new shares in the Company upon exercise (the "Available Existing Warrants").
The exercise of the Warrants will result in the issuance of new shares in the Company. Those new shares will rank pari passu with all other shares in the Company and will be fully entitled to dividend over the entire financial year during which they are issued and over the subsequent financial years.
The issuance of the new shares pursuant to the exercise of the Warrants will result in a dilution of the participations of the (then) existing shareholders in the Company. As is also the case for their voting power and their part in the capital and net equity, the pro rata right of the existing shareholders to share in the profits and, if applicable, the liquidation bonus of the Company will dilute.
The impact of the exercise of the Warrants on the patrimonial and membership rights of the existing shareholders will depend on the exercise price of the Warrants and the number of Warrants that are actually exercised in accordance with the terms and conditions of the 2024 Warrants Plan. However, it is impossible at this time to accurately calculate the dilution that the exercise of the Warrants will entail as no exact data is currently available in respect of the exercise price and the number of Warrants that will be exercised.
Therefore, the Board has made a number of simulations based on purely hypothetical assumptions in relation to the exercise price of the Warrants. The results of these simulations are attached as Annex 2 to this report. It should be noted that in these simulations the Available Existing Warrants are disregarded and that it is assumed that (i) the maximum number of Warrants is granted, (ii) all Warrants are exercised, (iii) all Warrants have the same exercise price, and (iv) all Granted Existing Warrants are exercised.
Upon acceptance of the Warrants that are offered, the Company will determine a market value ("fair value") for the Warrants on the basis of the commonly used actuarial methods to this effect and this market value will be accounted for spread over the period of service that is expected from the warrant holders ("vesting period") in accordance with the 2024 Warrants Plan. This market value can only be determined on the date of the acceptance of the Warrants. It will be determined in function of the following parameters: (i) stock price of the share in the Company on the date of the offer, (ii) the exercise price of the Warrants, (iii) the expected volatility of the share of the Company, (iv) the exercise period of the Warrants and (v) the applicable interest rate.
The Warrants are to be issued in addition to the Existing Warrants under existing share-based incentive plans, which were also granted to employees, officers, directors, consultants or advisors of Group Companies.
The Board intends to cancel the preferential subscription rights in relation to the issue of the Warrants. The cancellation of the subscription rights allows the Company to exclusively grant the warrants to personnel of the Group Companies and to the other beneficiaries of the 2024 Warrants Plan.
The purpose of the issuance of the Warrants under the new 2024 Warrants Plan is to further advance (in addition to the Existing Warrants under the existing share-based incentive plans) the interest of the Company and its shareholders by enhancing the Company's ability to attract, retain and motivate persons who make (or are expected to make) important contributions to the Company by providing such persons with equity ownership opportunities and performance-based incentives and thereby better aligning the interests of such persons with those of the Company and its shareholders.
By offering equity ownership opportunities, the Company can provide the holders of the Warrants the ability to share in the Company's success from a financial perspective. Such opportunities, which can be substantial due to growth possibilities, will offset the risks inherent in both joining and continuing an association with companies at a development stage like the Group Companies.
Based on the foregoing, the Board is of the opinion that the issuance of the Warrants with cancellation of the preferential subscription rights serves the interests of the Company and its shareholders.
The Board shall instruct the statutory auditor of the Company, Ernst & Young Réviseurs d'Entreprises (RLE 0446.334.711), represented by Mr. Carlo-Sébastien D'Addario, to draw up an auditor's report in accordance with Articles 7:180 juncto 7:179 §1, and 7:191 of the CCA.
This special report and the above-mentioned statutory auditor's report in accordance with Articles 7:180 juncto 7:179 §1, and 7:191 of the CCA shall be filed with the clerk's office of the Business Court of Brabant wallon in accordance with the CCA.
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Approved by the Board on 31 July 2024.
On behalf of the Board
Olivier Taelman
Director
Rue Edouard Belin 12 B-1435 Mont-Saint-Guibert VAT: BE 0817.149.675 Register of legal entities of Walloon Brabant
(hereinafter the "Company")
For the purposes of this Plan, the following terms shall have the following meaning:
"Articles of Association" means the articles of association of the Company.
"Beneficiary" means a person duly designated by a Holder who is a physical person, be it his/her spouse or his/her legal heirs, to exercise the rights of the Holder under this Plan after the decease of the Holder. Designation, revocation and re-designation of a Beneficiary shall be done in writing. In the absence of any valid designation, the heirs of the Holder will, in accordance with the applicable laws of inheritance, be deemed to be the Beneficiary. In case there are several heirs, all heirs acting jointly, or a person designated by all heirs acting jointly, will be deemed to be the Beneficiary.
"Board of Directors" means the board of directors of the Company.
"Change of Control" means any change of Control of the Person concerned, including (i) the loss of the exclusive Control, (ii) the loss of one or more of the (three) criteria used in the definition of Control, (iii) in case of common Control, the loss of common Control or the modification of the shareholders of the common Control, including the replacement of any Person holding the common Control, (iv) in case of succession of a Person being a physical person, the change of Control from such Person to the heirs thereof, (v) in case of nomination of a guardian, provisional administrator or similar act on a Person, being a physical person, the change of Control from such Person to the guardian or administrator thereof; provided, however, that a Change of Control does not include a change of Control resulting from a person acquiring securities which are quoted on an internationally recognised stock exchange.
"Company" means Nyxoah SA, a company limited by shares subject to Belgian law ("société anonyme"), with registered office at Rue Edouard Belin 12, 1435 Mont-Saint-Guibert, Belgium and registered with the Register of Legal Entities (Brabant wallon) under number 0817.149.675.
"Company Secretary" means the person who has been designated as company secretary by the Board of Directors from time to time.
"Control" and any derivation thereof, means with respect to any Person, the holding by any other Person, directly or indirectly, of (i) the majority of the outstanding voting interests in the Person concerned, (ii) the power, by contract or otherwise, to exercise, legally or factually, a determining influence on the appointment or dismissal of the majority of the directors, trustees, general partners or other governing body as applicable, in the Person, or (iii) the power, by contract or otherwise, to exercise, legally or factually, a determining influence on the orientation of the Person's management.
"Controller" has the meaning as set out in Clause 8.1.
"Controlling Shareholder" has the meaning as set out in Clause 7.
"Deemed Liquidation Event" means (i) sale, lease transfer, exclusive license or other disposition of all or substantially all of the Company's assets (including for the avoidance of doubt the material intellectual property rights of the Company and its Subsidiaries (if any)) or Shares, in a single transaction or series of related transactions, (ii) transaction or series of transactions resulting in a Change of Control over the shareholding of the Company (meaning a transaction as a result of which a third party acquires the exclusive Control over the Company), or (iii) merger, reverse merger or consolidation (with or into another entity) in which outstanding Shares of the Company or another Group Company are exchanged for securities or other consideration issued, or caused to be issued, by the acquiring company or a Subsidiary of the acquiring company and in which the shareholders of the Company immediately prior to the transaction do not own a majority of the shares of the surviving entity.
"Eligible Warrants" has the meaning as set out in Clause 7.
"End of Mandate" means the effective date of the termination, for whatsoever reason, of (i) the employment contract between the concerned Holder and any Group Company, (ii) the director's mandate exercised by the concerned Holder in any Group Company, or (iii) the services or other collaboration agreement between the concerned Holder and any Group Company. Such termination will not imply the "End of Mandate", however, if the termination of the relationship with the concerned Group Company is accompanied by the simultaneous entering into of an employment agreement with another Group Company, by the simultaneous appointment as a director of another Group Company, or by the simultaneous entering into of a services or other collaboration agreement with another Group Company.
"Exercise Period" means any of the periods during which, in accordance with Clause 6.2 of this Plan, the Holder can exercise Warrants granted to him/her so as to obtain Shares.
"Final Exercise Date" means the last day of the last Exercise Period of the relevant Warrants.
"Grant" means the grant of Warrants decided by the Board of Directors (or by the shareholders' meeting of the Company for grants of Warrants to directors of the Company as remuneration for their mandate as director).
"Group Companies" means the Company and its Subsidiaries from time to time and "Group Company" means any of them.
"Holder" means a physical person or a legal entity to whom the Company has offered Warrants and who/that has completely or partially accepted these Warrants.
"Israeli Participant" has the meaning as set out in Clause 7.
"ITA" has the meaning as set out in Clause 7.
"Liquidation Event" means a liquidation, dissolution, winding up or bankruptcy of the Company.
"Offer" has the meaning as set out in Clause 3.
"Ordinance" has the meaning as set out in Clause 7.
"Person" means any physical person, corporation, general partnership, limited partnership, limited liability company, proprietorship, investment fund, other business organisation, trust, union or association.
"Personal Data" has the meaning as set out in Clause 8.2.
"Plan" means this 2024 Warrants Plan regarding warrants issued by the Company.
"Processor" has the meaning as set out in Clause 8.4.
"Rules" has the meaning as set out in Clause 7.
"Share" means any common share in the Company.
"Subsidiary" has the meaning as set out in Article 1:15 of the Code of Companies and Associations.
"Trustee" has the meaning as set out in Clause 7.
"Warrant" means a subscription right regarding a newly to be issued Share, issued and granted on the basis of this Plan.
Each Warrant shall entitle its Holder to subscribe for one (1) Share upon exercise of the Warrant, under the terms and conditions set out in this Plan.
In the framework of this Plan no more than one million (1,000,000) Warrants can be issued. Consequently, the Company can issue up to one million (1,000,000) Shares as a result of the exercise of the Warrants.
The purpose of this Plan is to advance the interests of the Company and its shareholders by enhancing the Group Companies' ability to attract, retain and motivate persons who make (or are expected to make) important contributions to the Company or any other Group Company by providing such persons with equity ownership opportunities and performancebased incentives and thereby better aligning the interests of such persons with those of the Company and its shareholders.
The Warrants can be granted to any Persons who are employees, officers, directors, consultants and advisors of any Group Company and any Persons who have accepted an offer for employment or to provide professional services to a Group Company. The Warrants are granted by the Board of Directors, except for grants of Warrants to directors of the Company as remuneration for their mandate as director which must be approved by the shareholders' meeting.
The total number of Holders shall, in any event, be lower than one hundred fifty (150).
Each individual offer of Warrants shall be dated and notified in writing to the potential Holder (the "Offer"). Each physical person or legal entity to whom the Company has made an Offer has the possibility to accept or to refuse the Offer. The acceptance of Warrants needs to be done in writing by checking the option acceptance, and mentioning the number of accepted Warrants, on the answer form prepared for these purposes. Unless the Offer mentions otherwise, the answer form must be completed and signed by the potential Holder and be delivered to the Company within sixty (60) days after the date of the Offer, or prior to any earlier date stated therein. If the potential Holder does not accept in writing the Offer of Warrants prior to the ultimate date stated in the answer form, he/she is deemed to have refused the Offer.
Notwithstanding the foregoing, the offering and acceptance of Warrants may also be included in a specific warrant agreement, or inserted in another agreement signed by the Company and the Holder.
Warrants that have been granted but that are refused by the potential Holder or that are not timely accepted in writing, shall not be null and void and can be offered again.
The Warrants shall be granted by the Company free of charge.
4.3.1 Unless the Board of Directors (or the shareholders' meeting of the Company for grants of Warrants to directors of the Company as remuneration for their mandate as director) (x) at the time of the Grant of the Warrant determines a lower or higher exercise price or (y) after the time of the Grant lowers or increases the exercise price as previously set (subject to approval by the relevant Holder), the exercise price of a Warrant will be equal to the lowest of the following prices:
The Warrants are and will remain registered. They will be recorded in the register of warrant holders, which will be kept by the Company at the registered office, mentioning the identity of each Holder and the number of Warrants held by such Holder.
4.6.1 Modification of the Company's capital structure
Contrary to Article 7:71 of the Code of Companies and Associations and without prejudice to the exceptions provided for by law, the Company shall retain the right to take decisions and close transactions that could have an influence on its capital, the distribution of profit or the liquidation bonuses, or that could possibly have another influence on the Holders' rights, except if such decisions or transactions only are aimed at diminishing the Holders' benefits.
In case the rights of the Holder are affected by such decision or transaction, the Holder will not be entitled to a modification of the exercise price or the exercise conditions, nor to any other form of financial or other compensation. The Board of Directors may, however, at its own discretion, make amendments to the number of Shares to which one Warrant relates and/or to the exercise price to compensate any such adverse effect for the Holder in full or in part. As soon as reasonably possible, the Company will inform the Holder of any such amendment by way of a written notification.
In the event that the Company shall (i) sub-divide its Shares into a larger number of Shares, (ii) combine its Shares into a smaller number of Shares, (iii) increase or decrease the number of Shares by a reclassification of Shares (without an increase or decrease of the Company's share capital), then the number of Shares to be issued upon exercise of the Warrant after the occurrence of one of such events shall be adjusted (if and to the extent required) so that, after giving effect to such adjustment, the Holder of the Warrant shall be entitled to receive the number of Shares upon exercise of the Warrant that such Holder would have owned or have been entitled to receive had this Warrant been exercised immediately prior to the occurrence of the event concerned. An adjustment made pursuant to this Clause 4.6.2 shall become effective immediately after the effective date of the event concerned. The Company shall inform the Holders of such adjustment by means of a notice as soon as practicable after the effective date of the event concerned.
In the event that there shall be (i) a merger ("fusion") of the Company with or into another person or entity whereby the Company is not the surviving entity, or (ii) a demerger ("scission") of the Company, whereby in both (i) and (ii) the Shares of the Company are exchanged into shares, other securities, cash or other property of one or more other persons, then the Shares to be issued upon exercise of the Warrant after the occurrence of one of such events shall be adjusted (if and to the extent required) so that, after giving effect to such adjustment, the Holder of the Warrant shall upon exercise of the Warrant be entitled to receive the number of shares, other securities, cash or other property of the successor or acquiring persons that such Holder would have owned or have been entitled to receive had this Warrant been exercised immediately prior to the occurrence of the event concerned. An adjustment made pursuant to this Clause 4.6.3 shall become effective immediately after the effective date of the event concerned. The Company shall inform the Holders of such adjustment by means of a notice as soon as practicable after the effective date of the event concerned.
5.1.1 Unless the Board of Directors (or the shareholders' meeting of the Company for grants of Warrants to directors of the Company as remuneration for their mandate as director) decides otherwise at the time of the Grant, at the End of Mandate of a Holder:
Unless the Board of Directors decides otherwise, all Warrants that have not yet vested in accordance with Clause 4.2 of this Plan shall become automatically null and void in case the company (other than the Company) of which the Holder is an employee, officer, director, consultant or advisor, is no longer Controlled by the Company.
5.3.1 If a Holder becomes fully disabled prior to the Final Exercise Date, all Warrants of the disabled Holder that have vested already in accordance with Clause 4.2 of this Plan prior to the date on which he/she became fully disabled shall immediately become exercisable until the first anniversary of the date on which the relevant Holder became fully disabled, unless the Board of Directors decides that such restriction shall not apply or decides a longer period (subject to the approval by the shareholders' meeting of the Company regarding any Warrants granted to directors of the Company as remuneration for their mandate as director). Unless the Board of Directors has decided to lift such restriction, all such Warrants that have not been exercised (or could not yet be exercised) in accordance with the modalities defined in this Plan prior to the first anniversary of the date on which the relevant Holder became fully disabled (or such later date as the Board of Directors has decided, as the case may be) shall become automatically null and void.
5.3.2 Unless the Board of Directors decides otherwise (subject to the approval by the shareholders' meeting of the Company regarding any Warrants granted to directors of the Company as remuneration for their mandate as director), all Warrants that have not yet vested in accordance with Clause 4.2 of this Plan prior to the date on which the relevant Holder became fully disabled shall become automatically null and void.
6.1.1 The Warrants can only be exercised by the Holder if they have effectively vested pursuant to Clause 4.2 of this Plan and in accordance with any additional exercise restrictions (e.g., making the exercisability of the Warrants subject to specific conditions or limiting the duration during which the Warrants can be exercised) decided by the Board of Directors (or the shareholders' meeting of the Company for grants of Warrants to directors of the Company as remuneration for their mandate as director) at the time of the Grant. The Warrants that have become exercisable can only be exercised in accordance with the exercise modalities provided for in this Plan.
of each year during which, and for as long as, they are valid and exercisable; and
(ii) in the event of the End of Mandate of a Holder, such Holder can exercise his/her Warrants during a period of 3 months immediately following the End of Mandate, unless agreed otherwise between the Company and the relevant Holder pursuant to Clause 5.1.1(ii).
Within the legal boundaries, the Board of Directors can decide, at its discretion, to amend the Exercise Periods, however, without being able to shorten them. For example, in order to avoid insider trading, the Board of Directors can decide to introduce closed periods, during which the Warrants cannot be exercised. If such closed periods would fall within the aforementioned Exercise Periods, the Board of Directors can determine one or more additional Exercise Periods as compensation and communicate the new Exercise Periods in writing to the Holders.
Warrants cannot be exercised and/or the Shares cannot be traded in the event that the Holder has inside information. In accordance with article 7, paragraph 1, a) of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse, "inside information" means information of a precise nature, which has not been made public, relating, directly or indirectly, to the Company or to one or more financial instruments issued by the Company, and which, if it were made public, would be likely to have a significant effect on the prices of those financial instruments or on the price of related derivative financial instruments.
Holders whose exercise rights are limited as a consequence of the conditions of this Plan or of any "Dealing Code" of the Company, are never entitled to any indemnification or compensation from the Company.
The exercise of the Warrants at the exercise price is unconditional.
6.2.2 Liquidation Event or Deemed Liquidation Event
Notwithstanding Clauses 4.2, 6.1.1 and 6.2.1 of this Plan, and unless the Board of Directors (or the shareholders' meeting of the Company for grants of Warrants to directors of the Company as remuneration for their mandate as director) decides otherwise at the time of the Grant of the Warrants, the Warrants will immediately vest and be exercisable during at least ten (10) business days (i) prior to the effective date of a Liquidation Event other than bankruptcy, and (ii) prior to the completion of a Deemed Liquidation Event, it being understood that such vesting and exercise of the Warrants shall be conditional upon the effectiveness of such Liquidation Event or Deemed Liquidation Event. As the case may be, the provisions in the Articles of Association regarding pre-emption, tag-along and drag along rights shall apply.
The Board of Directors (or the shareholders' meeting of the Company for grants of Warrants to directors of the Company as remuneration for their mandate as director) may impose additional restrictions and conditions to the exercisability of the Warrants at the time or (subject to approval of the relevant Holder) after the time of the Grant of the Warrants.
In order to exercise a Warrant, at the latest on the Final Exercise Date, the Company needs to receive a written notice of exercise of the Warrants from the Holder (or, if applicable, his/her Beneficiaries). The notification shall take place by registered mail, against receipt confirmation, or by personal delivery or by email to the Board of Directors or the Company Secretary at the registered office of the Company. The notice must explicitly state the number of Warrants being exercised and the number of Shares consequently being subscribed to. If the Warrants are exercised by one or more Beneficiaries, the notice of exercise needs to be accompanied by an appropriate proof of the right of this person or these persons to exercise the Warrants.
The full amount of the exercise price of the exercised Warrants needs to be paid in cash and deposited by wire transfer on a blocked account of the Company of which the bank account number is communicated by the Board of Directors, the Company Secretary, or a delegate. Unless agreed otherwise by the Company, this payment shall take place within ten (10) business days after having received the aforementioned communication of the bank account number, or within ten (10) business days after the date of the notice of exercise in the event that the bank account number concerned has already previously been communicated by the Board of Directors.
concerned Warrant was validly exercised or sooner if so decided by the Company. To this effect, the Board of Directors or one of the directors will acknowledge before a notary public that the capital was increased in accordance with Article 7:187 of the Code of Companies and Associations.
The Holder or, as the case may be, the Holder's Beneficiary does not have any rights and privileges of a shareholder regarding the Shares, object of this Plan, until the date these Shares are effectively issued by the Company to the Holder or, as the case may be, the Holder's Beneficiary. Once the Shares have been issued by the Company to the Holder, the latter enjoys, in his capacity as shareholder, the same rights as the other shareholders in the Company, and such Shares shall be subject to the provisions of the Articles of Association (including but not limited to the share transfer restrictions).
To enable the proper set-up and management of the Plan and the (electronic) register of warrant holders and the (electronic) share register of the Company, information about each Holder will need to be collected and used. For Holders who are physical persons, this Clause 8 sets out the obligations of the Company and the rights of each of the Holders regarding this collection and use, and provides the legally required information in this respect.
The Company is the so-called "Controller", i.e. the person responsible for the collection and use of Personal Data as is necessary for the setting-up, implementation, administration and management of the Plan, the (electronic) register of warrant holders and the (electronic) share register of the Company.
The following items of information relating to each of the Holders will be collected and used:
together the "Personal Data".
The Personal Data collected by way of the Company's HR systems, any Warrant agreement or acceptance form will be used exclusively for the purposes of the setting-up, implementation, administration and management of the Plan and the maintenance of the (electronic) register of warrant holders and (electronic) share register of the Company.
The Controller can transfer the Personal Data to the following categories of recipients:
Such recipients may be located in jurisdictions outside the European Economic Area that offer an adequate level of personal data protection, in particular Israel. For the avoidance of doubt, Israel has been recognised by the European Commission as a country located outside the European Economic Area that does offer an adequate level of personal data protection.
With respect to the setting-up, implementation, administration and management of the Plan and the (electronic) register of warrant holders and (electronic) share register of the Company, the collection, processing and use of the Personal Data is necessary to perform the Company's contractual obligations towards the Holders. If the Personal Data of a Holder cannot be collected, processed or used, this Holder cannot participate in the Plan.
The Holders can exercise their right to request access to and rectification or erasure of their Personal Data or restriction of processing concerning the Holders or to object to processing as well as the right to data portability by sending a written and signed request to the Company's registered office at Rue Edouard Belin 12, 1453 Mont-Saint-Guibert, Belgium, for the attention of the Company's Data Protection Officer or by email to [email protected].
Finally, if Holders are not satisfied with how the Company processes their Personal Data, they can contact the Company's Data Protection Officer at Rue Edouard Belin 12, 1453 Mont-Saint-Guibert, Belgium, by email to [email protected].
Holders also always have the right to make a complaint to the competent data protection authority in the EU Member State of their habitual residence, their place of work or of an alleged infringement of the applicable data protection rules.
Personal Data will be stored for a period of ten (10) years following the later of (i) the termination of the Plan or (ii) the end of a Holder's participation in the Plan.
The terms and conditions set out in this Plan may entirely or partially be amended, modified, suspended or terminated by the Board of Directors at any time. The amendment, suspension or termination of this Plan may not modify or limit the rights and obligations under a granted Warrant without the consent of the concerned Holder. No Warrant can be granted when this Plan is suspended or after the termination of this Plan.
Notwithstanding any provision of the Plan, the Board of Directors may modify or extend the provisions of the Plan and the conditions of the Warrants to the extent that it considers this to be necessary or preferable to take into account, to limit the disadvantageous consequences of, or to be in compliance with foreign legislation, including, but not limited to, tax and financial legislation applicable to the Holder, to the extent that the terms and conditions of the Warrants granted to such Holder are not more advantageous than the terms and conditions of the Warrants granted to the other Holders.
The costs regarding the issuance of the Warrants and the capital increase relating to the issuance and exercise of the Warrants are borne by the Company.
Holders (or, if applicable, his/her Beneficiaries) will have to bear any taxes (including but not limited to stamp duties, registration duties and other indirect taxes, income taxes, capital gains taxes and stock exchange taxes) and employee or self-employed social security contributions due in connection with (a) the acceptance, exercise, and/or transfer of the Warrants and (b) the delivery, ownership and/or transfer of the new Shares, in accordance with applicable tax and social security legislation.
The Company or a Subsidiary shall levy any and all withholding taxes and social security contributions in relation to the Grant of the Warrants as provided for in the relevant applicable tax and/or social security laws.
An investment in Warrants or Shares involves substantial risks.
Before making an investment decision with respect to the acceptance and/or exercise of the Warrants, the Beneficiary / Holder should consider the risks and uncertainties with which the Company is or might be confronted (including but not limited to those mentioned in the annual reports of the Company) and read the annual accounts and annual reports of the Company. Past performances of the Company give no guarantees for the future.
It cannot be excluded that the market value of a Share during the entire duration of the Warrants will be lower than the applicable exercise price of a Warrant. The taxes and social security contributions that may be due in connection with the acceptance of the Warrants cannot be recovered, even if the Warrants expire without having been exercised. It can also not be excluded that the value of the Shares after exercise of Warrants will decrease and that the Holder loses all or part of his investment in Shares.
No provision of this Plan can be construed as creating an obligation of employment (either by way of an employment agreement, an appointment as director or a services agreement) between a Group Company and a Holder or an obligation for the Board of Directors to offer Warrants. Upon termination of the employment, the Holder shall in no event be entitled to demand damages within the framework of this Plan. The foregoing also applies, but is not limited to, the application of the tax legislation.
The nullity or unenforceability of any provision of this Plan does not in any way affect the validity or enforceability of the remaining provisions of this Plan. In this case, the invalid or unenforceable provision will be replaced by an equivalent valid and enforceable provision having a similar economic effect for the parties concerned.
This Plan and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with Belgian law.
The courts of Brussels (Belgium) have exclusive jurisdiction to settle any dispute arising out of or in connection with this Plan (including a dispute relating to non-contractual obligations arising out of or in connection with this Plan).
Any notice to the Holders (and, if applicable, his/her Beneficiaries) shall be validly made to the address mentioned in the register of warrant holders.
Any notice to the Company, shall be validly made to the attention of the Board of Directors or the Company Secretary at the address of the registered office of the Company.
Address modifications must be notified immediately by the Holders (and, if applicable, his/her Beneficiaries) to the Company in accordance with this provision.
* *
*
Adopted by the Board of Directors on 31 July 2024.
On behalf of the Board of Directors
Olivier Taelman Director
| Total number of shares, on a fully diluted basis2 , immediately before the issuance of the Warrants under the 2024 Warrants Plan |
Total shares, on a fully diluted basis3 , immediately after the issuance of the Warrants under the 2024 Warrants Plan |
|||
|---|---|---|---|---|
| Number | % | Number | % | |
| Existing shares | 34,373,015 | 94.64% | 34,373,015 | 92.10% |
| Shares to be issued upon exercise of the Granted Existing Warrants |
1,946,981 | 5.36% | 1,946,981 | 5.22% |
| Shares to be issued upon exercise of the Warrants |
- | - | 1,000,000 | 2.68% |
| TOTAL | 36,319,996 | 100% | 37,319,996 | 100% |
| Dilution of the existing shareholders (on a fully diluted basis)4 compared to prior to the issuance of the Warrants under the 2024 Warrants Plan |
2.68% |
Annex 2 - Simulations of the effect of the proposed issuance of the Warrants on the patrimonial and membership rights of the existing shareholders
2 I.e., assuming exercise of all Granted Existing Warrants and issuance of the corresponding shares but disregarding the Available Existing Warrants.
3 I.e., assuming exercise of all Granted Existing Warrants and of all Warrants and issuance of the corresponding shares but disregarding the Available Existing Warrants.
4 I.e., assuming exercise of all Granted Existing Warrants and of all Warrants and issuance of the corresponding shares but disregarding the Available Existing Warrants.
| Capital5 (EUR) |
Net Equity6 (EUR) |
|||||
|---|---|---|---|---|---|---|
| A. | on an undiluted7 Prior to the issuance of the Warrants under the 2024 Warrants Plan – basis |
|||||
| share | Amount represented by each | 0.1718 | 3.8108 | |||
| Total | 5,904,962.41 | 130,989,020.62 | ||||
| B. | on a fully-diluted8 Prior to the issuance of the Warrants under the 2024 Warrants Plan – basis |
|||||
| share | Amount represented by each | 0.1718 | 4.0791 | |||
| Total | 6,239,453.75 | 148,153,024.48 | ||||
| C. | Immediately after the issuance of all Warrants under the 2024 Warants Plan, assuming that all Warrants are immediately granted and accepted – on a fully-diluted9 basis |
|||||
| Exercise price of EUR 5.00 per Warrant |
||||||
| share | Amount represented by each | 0.1718 | 4.1038 | |||
| Total | 6,411,253.75 | 153,153,024.48 | ||||
| D. | Immediately after the issuance of all Warrants under the 2024 Warants Plan, assuming that all Warrants are immediately granted and accepted – on a fully-diluted10 basis |
|||||
| Exercise price of EUR 8.00 per Warrant |
||||||
| share | Amount represented by each | 0.1718 | 4.1842 | |||
| Total | 6,411,253.75 | 156,153,024.48 | ||||
| E. | Immediately after the issuance of all Warrants under the 2024 Warants Plan, assuming that all Warrants are immediately granted and accepted – on a fully-diluted11 basis |
|||||
| Exercise price of EUR 15.00 per Warrant | ||||||
| Amount represented by each share |
0.1718 | 4.3717 | ||||
| Total | 6,411,253.75 | 163,153,024.48 |
5Calculated on the basis of the capital of Nyxoah SA as at the date of this report, being EUR 5,904,962.41.
6 Calculated on the basis of the net equity ("capitaux propres") of Nyxoah SA as at 30 June 2024, being EUR 130,989,020.62 (Belgian GAAP; non-consolidated).
7 Disregarding the Existing Warrants and Warrants and the potential issuance of the corresponding shares upon exercise of such warrants.
8 I.e., assuming exercise of all Granted Existing Warrants and issuance of the corresponding shares but disregarding the Available Existing Warrants.
9 I.e., assuming exercise of all Granted Existing Warrants and of all Warrants and issuance of the corresponding shares but disregarding the Available Existing Warrants.
10 I.e., assuming exercise of all Granted Existing Warrants and of all Warrants and issuance of the corresponding shares but disregarding the Available Existing Warrants.
11 I.e., assuming exercise of all Granted Existing Warrants and of all Warrants and issuance of the corresponding shares but disregarding the Available Existing Warrants.
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