REGULATED INFORMATIONMay 10,
2024, 7:00am CET / 1:00am ET
NYXOAH SA(Euronext Brussels:
NYXH) Rue Edouard Belin 12, 1435 Mont-Saint-Guibert,
Belgium(hereinafter the “Company”)
Invitation to attend the annual and the
extraordinary shareholders’ meetings of the Company
to be held on June 12, 2024
The board of directors of the Company is pleased
to invite its securities holders to attend the annual shareholders'
meeting of the Company, to be held on Wednesday, June 12,
2024 at 2:00 p.m. CET at the Company's seat, or at such
other place as will be indicated prior to such time. The annual
shareholders’ meeting will be followed immediately by an
extraordinary shareholders’ meeting.
The Company will also set up a video conference
to allow holders of securities of the Company who have duly
registered for the annual and the extraordinary shareholders’
meetings to follow the meetings remotely and ask questions, as the
case may be in writing, during the meetings. The modalities to
attend the meetings via video conference will be communicated to
the relevant securities holders in due time. The videoconference
will not qualify as an electronic communication tool to attend and
vote at the shareholders’ meetings as referred to in Article 7:137
of the Belgian Code of Companies and Associations, but will be an
extra facility for securities holders to follow the shareholders’
meetings. Holders of securities wishing to attend the meetings via
video conference and also validly vote on the items on the agendas,
are invited to exercise their voting rights prior to the
shareholders’ meetings by following the rules set out in this
convening notice, either by voting remotely by mail, or by giving a
proxy to a representative of the Company.
In order to facilitate the keeping of the
attendance list on the day of the annual and the extraordinary
shareholders' meetings, the holders of securities issued by the
Company and their representatives are invited to register as from
1:30 p.m. CET.
AGENDA OF THE ANNUAL SHAREHOLDERS’ MEETING
- Acknowledgement and discussion
of:
- the statutory annual accounts for
the financial year ended on December 31, 2023;
- the consolidated financial
statements for the financial year ended on December 31,
2023;
- the annual report of the board of
directors on the statutory annual accounts for the financial year
ended on December 31, 2023;
- the annual report of the board of
directors on the consolidated financial statements for the
financial year ended on December 31, 2023;
- the statutory auditor's report on
the statutory annual accounts for the financial year ended on
December 31, 2023; and
- the statutory auditor's report on
the consolidated financial statements for the financial year ended
on December 31, 2023.
1. Approval
of the statutory annual accounts for the financial year ended on
December 31, 2023 and the proposed allocation of the resultProposed
decision: The shareholders’ meeting decides to approve the annual
accounts for the financial year ended on December 31, 2023 and the
allocation of the result as proposed by the board of directors.
2. Discharge
of directorsProposed decision: The shareholders’ meeting decides to
grant discharge to each of the directors who was in office during
the financial year ended on December 31, 2023 for the performance
of their mandate during that financial year.
3. Discharge
of the statutory auditorProposed decision: The shareholders’
meeting decides to grant discharge to the statutory auditor who was
in office during the financial year ended on December 31, 2023 for
the performance of his mandate during that financial year.
4. Acknowledgement and approval
of the remuneration reportProposed decision: The shareholders’
meeting decides to approve the remuneration report.
- Acknowledgement and approval of the
amended remuneration policy to allow for a share-based remuneration
for the non-executive directors
Upon the recommendation of the remuneration
committee, the board of directors proposes to amend the
remuneration policy of the Company to allow for the granting of
so-called “restricted share units” or “RSUs” to non-executive
directors. This RSU remuneration component replaces the existing
share-based remuneration in the form of a grant of warrants to
non-executive directors as approved by the annual shareholders’
meeting of June 8, 2022. The proposed features of the RSUs are
summarized in the proposed amended remuneration policy.
Proposed decision: The shareholders’ meeting
decides to approve (a) the amended remuneration policy, (b) the
granting to non-executive directors of “restricted share units” or
“RSUs” as further described in the amended remuneration policy,
whereby the RSUs shall be awarded for the first time as of the date
of this shareholders’ meeting, and (c) the cancellation as of the
date of this shareholders’ meeting of the current warrant component
of the non-executive directors’ remuneration as approved by the
annual shareholders’ meeting of June 8, 2022.
- Appointment of Robelga SRL (permanently represented by Robert
Taub) as director
Proposed decision: The shareholders’ meeting
decides to appoint Robelga SRL, permanently represented by Robert
Taub, as director of the Company until the annual shareholders’
meeting to be held in 2025. The mandate of Robelga SRL will be
remunerated as provided for the non-executive members of the board
of directors in the Company’s remuneration policy as adopted by the
shareholders’ meeting and, as concerns the cash remuneration, as
decided by the annual shareholders’ meeting of June 8, 2022.
1. Reappointment of Jürgen
Hambrecht as independent directorProposed decision: The
shareholders’ meeting decides to reappoint Jürgen Hambrecht as an
independent director of the Company within the meaning of Article
7:87 of the CCA and provision 3.5 of the 2020 Belgian Corporate
Governance Code, until the annual shareholders’ meeting to be held
in 2025. The mandate of Jürgen Hambrecht will be remunerated as
provided for the non-executive members of the board of directors in
the Company’s remuneration policy as adopted by the shareholders’
meeting and, as concerns the cash remuneration, as decided by the
annual shareholders’ meeting of June 8, 2022.
2. Reappointment of Kevin Rakin
as independent directorProposed decision: The shareholders’ meeting
decides to reappoint Kevin Rakin as an independent director of the
Company within the meaning of Article 7:87 of the CCA and provision
3.5 of the 2020 Belgian Corporate Governance Code, until the annual
shareholders’ meeting to be held in 2025. The mandate of Kevin
Rakin will be remunerated as provided for the non-executive members
of the board of directors in the Company’s remuneration policy as
adopted by the shareholders’ meeting and, as concerns the cash
remuneration, as decided by the annual shareholders’ meeting of
June 8, 2022.
3. Reappointment of Rita
Johnson-Mills as independent directorProposed decision: The
shareholders’ meeting decides to reappoint Rita Johnson-Mills as an
independent director of the Company within the meaning of Article
7:87 of the CCA and provision 3.5 of the 2020 Belgian Corporate
Governance Code, until the annual shareholders’ meeting to be held
in 2025. The mandate of Rita Johnson-Mills will be remunerated as
provided for the non-executive members of the board of directors in
the Company’s remuneration policy as adopted by the shareholders’
meeting and, as concerns the cash remuneration, as decided by the
annual shareholders’ meeting of June 8, 2022.
4. Reappointment of Virginia
Kirby as independent directorProposed decision: The shareholders’
meeting decides to reappoint Virginia Kirby as an independent
director of the Company within the meaning of Article 7:87 of the
CCA and provision 3.5 of the 2020 Belgian Corporate Governance
Code, until the annual shareholders’ meeting to be held in 2025.
The mandate of Virginia Kirby will be remunerated as provided for
the non-executive members of the board of directors in the
Company’s remuneration policy as adopted by the shareholders’
meeting and, as concerns the cash remuneration, as decided by the
annual shareholders’ meeting of June 8, 2022.
5. Reappointment of Wildman
Ventures LLC (permanently represented by Daniel Wildman) as
independent directorProposed decision: The shareholders’ meeting
decides to reappoint Wildman Ventures LLC, permanently
represented by Daniel Wildman, as an independent director of the
Company within the meaning of Article 7:87 of the CCA and provision
3.5 of the 2020 Belgian Corporate Governance Code, until the annual
shareholders’ meeting to be held in 2025. The mandate of Wildman
Ventures LLC will be remunerated as provided for the non-executive
members of the board of directors in the Company’s remuneration
policy as adopted by the shareholders’ meeting and, as concerns the
cash remuneration, as decided by the annual shareholders’ meeting
of June 8, 2022.
6. Reappointment of Pierre
Gianello as director
Proposed decision: The shareholders’ meeting
decides to reappoint Pierre Gianello as director of the Company
until the annual shareholders’ meeting to be held in 2025. The
mandate of Pierre Gianello will be remunerated as provided for the
non-executive members of the board of directors in the Company’s
remuneration policy as adopted by the shareholders’ meeting and, as
concerns the cash remuneration, as decided by the annual
shareholders’ meeting of June 8, 2022.
7. Reappointment of Olivier
Taelman as director
Proposed decision: The shareholders’ meeting
decides to reappoint Olivier Taelman as director of the Company
until the annual shareholders’ meeting to be held in 2025. The
mandate of Olivier Taelman will not be remunerated.
AGENDA OF THE EXTRAORDINARY SHAREHOLDERS’
MEETING
- Acknowledgment and discussion of
the special report by the board of directors drawn up in accordance
with article 7:199 of the Belgian Code of Companies and
Associations relating to the proposal to renew the authorized
capital
8. Renewal of
the authorization to the board of directors to increase the share
capital within the framework of the authorized capital
Proposed decision: The shareholders’ meeting
resolves to renew the authorization to the board of directors to
increase the share capital in one or several times, during a period
of five (5) years as from the publication in the Annexes to the
Belgian Official Gazette of this authorization, with an aggregate
amount equal to EUR 3,436,000, and this in accordance with the
terms and conditions set forth in the special report of the board
of directors prepared in accordance with Article 7:199 of the
Belgian Code of Companies and Associations, as referred to in
agenda item 1 of this extraordinary shareholders’ meeting.
Consequently, the shareholders’ meeting resolves
to delete the first and second paragraph of Article 7 (“Authorized
capital”) of the articles of association of the Company entirely
and to replace such first and second paragraph of Article 7
respectively with the following text (whereby (i) the date referred
to between brackets in the second paragraph shall be the date of
the shareholders’ meeting approving the renewed authorized capital,
and (ii) the other provisions of Article 7 remain in place and are
re-approved):
A) text of the
first paragraph: “The board of directors is authorized to increase
the capital of the company on one or several occasions in
accordance with the Code of Companies and Associations by a maximum
aggregate amount of EUR 3,436,000.”
B) text of the
second paragraph: “This authorization is valid for a period of five
years as from the date of publication in the Annexes to the Belgian
State Gazette of an extract of the minutes of the extraordinary
shareholders’ meeting of the company of [date of the shareholders’
meeting approving the renewed authorized capital].”
5. Power of
attorney to the notaryProposed decision: The shareholders’ meeting
decides to grant the acting notary, and any other notary of
“Berquin Notarissen”, all powers to draw up and sign a restated
version of the articles of association of the Company and to file
them in the appropriate data base in accordance with applicable
law.
ADMISSION FORMALITIES AND PARTICIPATION IN THE
SHAREHOLDERS’ MEETINGS
In order to attend the shareholders’ meetings on
June 12, 2024, the holders of shares and subscription rights are
requested to comply with articles 26 and 27 of the Company’s
articles of association and the following formalities.
If the attendance quorum required pursuant to
Article 7:153 of the Belgian Code of Companies and Associations is
not met at the extraordinary shareholders’ meeting of June 12,
2024, a second extraordinary shareholders’ meeting will be convened
on Monday, July 1, 2024 at 2:00 p.m. CET, to deliberate and resolve
on the agenda items of the extraordinary shareholders’ meeting
regardless of the share capital present or represented by the
shareholders.
The holders of subscription rights issued by the
Company can, in accordance with Article 7:135 of the Belgian Code
of Companies and Associations only attend the shareholders’
meetings with a consultative vote.
In order to be able to participate in the annual
and the extraordinary shareholders' meetings, a holder of
securities issued by the Company must satisfy two conditions: (a)
be registered as holder of such securities on the registration date
and (b) notify the Company, as described below.
Registration date
The registration date is May 29, 2024 at
midnight (Belgian time). Only persons registered as securities
holders on that date and time will be entitled to attend and (if
they are shareholders) vote at the meetings. The number of
securities held by the securities holder on the day of the meetings
will not be taken into account.
- Holders of registered shares or
subscription rights must be registered in the Company's share
register or subscription rights register, as the case may be, by
midnight (Belgian time) on May 29, 2024.
- Holders of dematerialized shares
must deliver, or have delivered, to the Company, at the latest on
June 6, 2024 at midnight (Belgian time), a certificate issued
by the authorized account holder or by the settlement institution
certifying the number of dematerialized shares registered in the
name of the shareholder in its accounts on the registration date,
for which the shareholder has declared his intention to participate
in the meetings. This certificate must be sent to the Company by
e-mail to shareholders@nyxoah.com.
Intention to participate in the meetings
The securities holders must inform the board of
directors of the Company by e-mail to shareholders@nyxoah.com
no later than June 6, 2024, of their intention to
participate in the meetings, indicate the number of securities for
which they intend to vote, and, for holders of dematerialized
shares, present proof of their registration as a shareholder on the
registration date.
In order to attend the meetings, securities
holders and proxy holders must prove their identity and
representatives of legal entities must submit documents
establishing their identity and their power of representation, at
the latest immediately before the start of the meetings.
Voting by proxy or by mail
Shareholders can exercise their voting rights
prior to the meetings either (i) by voting by mail or (ii) by
giving a proxy to a representative of the Company.
If shareholders vote by proxy, the proxy holder
will be a representative of the Company. This proxy holder may only
exercise the voting right in accordance with the voting
instructions contained in the proxy.
The proxy voting form and the form for voting by
mail approved by the Company must be used for this purpose. These
forms can be downloaded from the Company’s website
(https://investors.nyxoah.com/shareholder-information >
Shareholders' Meetings).
If shareholders vote by proxy or by mail, they
must, in addition to the above formalities, send by e-mail to
shareholders@nyxoah.com a duly completed and signed proxy voting
form or form for voting by mail. These documents must reach the
Company no later than June 6, 2024.
Note that the proxy voting forms and the forms
for voting by mail may be signed by using an electronic signature
as provided for in Article 7:143 § 2 of the Belgian Code of
Companies and Associations.
Participation in the virtual shareholders’
meetings
Securities holders wishing to participate
remotely, virtually and in real time, to the Company's annual and
extraordinary shareholders’ meetings are required to confirm their
participation and communicate their e-mail address to the Company
by June 6, 2024 at the latest by e-mail to
shareholders@nyxoah.com.
A few days before the shareholders’ meetings,
securities holders who have completed this formality will receive
by e-mail (at the address they will have communicated to the
Company) a link, and as the case may be a user name and a password,
enabling them to follow and participate in the shareholders’
meetings via their computer, tablet or smartphone.
Just before the start of the shareholders’
meetings, the securities holders will have to click on the link
that will have been previously communicated to them by e-mail, and
as the case may be enter their user name and password, in order to
join the virtual shareholders’ meetings.
Securities holders attending the virtual
shareholders’ meetings will have the opportunity to view the live
broadcast of the meetings in real time and to ask questions to the
directors, as the case may be in writing, during the meetings
regarding the items on the agenda.
New agenda items, proposed decisions and right to ask
questions
Shareholders holding at least 3% of the capital
who wish to request the inclusion of new items on the agenda or to
submit proposals for decision must, in addition to the above
formalities, establish on the date of their request proof of
ownership of the required participation in the capital and send the
text of the agenda items and the proposed decisions by e-mail to
shareholders@nyxoah.com no later than May 21, 2024. The request
must also mention the e-mail address to which the Company will send
the confirmation of receipt of the request.
The case being, the revised agenda will be
published no later than May 28, 2024.
Shareholders who wish to do so may send any
questions they may have to the Company, relating solely to the
agendas of the annual and the extraordinary shareholders’ meetings,
by e-mail to shareholders@nyxoah.com, no later than June 6, 2024.
The answers to these questions will be provided during the annual
and the extraordinary shareholders’ meetings in accordance with
applicable law.
Documentation
All documents concerning the annual and the
extraordinary shareholders’ meetings that are required by law to be
made available, as well as the total number of shares and voting
rights outstanding, are available on the Company's website on:
https://investors.nyxoah.com/shareholder-information. The documents
are also available at the seat of the Company and can only be
consulted by appointment made by e-mail (shareholders@nyxoah.com).
Shareholders may also obtain a hard copy of these documents free of
charge by sending an e-mail to shareholders@nyxoah.com.
The aforementioned formalities, as well as the
instructions on the Company's website and on the proxy voting forms
and forms for voting by mail must be strictly observed.
Various
Quorum: There is no particular quorum
requirement for the deliberation and voting of the decisions
proposed in the agenda of the annual shareholders' meeting.
In accordance with Article 7:153 of the Belgian
Code of Companies and Associations, at least 50% of the share
capital must be present or represented for the deliberation and
voting on the decisions proposed in item 2 of the agenda of
the extraordinary shareholders’ meeting.
Voting: Each share entitles the holder to one
vote.
Majority: In accordance with applicable law, the
decisions proposed in the agenda of the annual shareholders’
meeting and the decisions proposed in the agenda of the
extraordinary shareholders’ meeting, other than agenda item 2, will
be adopted if they are approved by a simple majority of the votes
validly cast by the shareholders present or represented at the
relevant shareholders’ meeting. In accordance with Article 7:153 of
the Belgian Code of Companies and Associations, the decisions
proposed in item 2 of the agenda of the extraordinary shareholders’
meeting will be adopted if they are approved by 75% of the votes
validly cast by the shareholders present or represented. Blank
votes and abstentions are not taken into account.
Personal data: The Company is responsible for
the processing of personal data that it receives or collects from
holders of securities issued by the Company and agents in
connection with the Company’s shareholders’ meetings.
The processing of such data will be carried out
for the purpose of organizing and holding the relevant
shareholders' meeting, including convening, registration,
attendance and voting, as well as maintaining lists or registers of
securities holders and for purposes of analysis of the Company’s
securities holders’ base.
The data includes, but is not limited to, the
following: identification data, the number and nature of a holder's
securities issued by the Company, proxies and voting instructions.
This information may also be transferred to third parties for the
purpose of assisting or servicing the Company in connection with
the foregoing.
The processing of such data will be carried out,
mutatis mutandis, in accordance with the Company's privacy notice
available on the Company's website:
https://www.nyxoah.com/privacy-notice-nyxoah.
The Company draws the attention of holders of
securities issued by the Company and agents to the description of
the rights they may have as data subjects, such as, inter alia, the
right of inspection, the right to rectify and the right to object
to processing, which are set out in the section entitled “What
rights can you exercise?” of the aforementioned privacy notice.
All this is without prejudice to the applicable
rules on registration, use of information and participation in
shareholders’ meetings in order to exercise your rights as a data
subject. For any other information relating to the processing of
personal data by or on behalf of the Company, the Company can be
contacted by e-mail at privacy@nyxoah.com.
The board of directors
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