UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment
No. )
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the Registrant
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material under §240.14a-12
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Bionik
Laboratories Corp.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
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Proposed maximum aggregate value of transaction:
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Amount Previously Paid:
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Form, Schedule or Registration Statement No.:
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Date Filed:
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BIONIK LABORATORIES CORP.
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
February 11, 2019
The annual meeting
of the stockholders (“Annual Meeting”) of Bionik Laboratories Corp. (“we,” “our,” “us,”
“Bionik” or the “Company”) will be held at the offices of the Company at 483 Bay Street, N105, Toronto,
Ontario, Canada M5G 2C9 on March 18, 2019 at 10:00 a.m., Eastern Time. The meeting will be held for the following purposes:
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(1)
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To elect eight directors to serve until the next annual meeting of stockholders and until their
successors are elected and qualified;
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(2)
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To consider and vote on an advisory (non-binding) resolution to approve the compensation of our
named executive officers;
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(3)
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To ratify the appointment of MNP LLP as our independent registered public accounting firm for the
fiscal year ending March 31, 2019; and
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(4)
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To transact such other business as may properly come before the meeting or any adjournment or postponement
thereof.
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These items of business
are more fully described in the proxy statement accompanying this notice. The Board of Directors fixed the close of business on
January 28, 2019 as the record date for the determination of the holders of our common stock and Exchangeable Shares entitled to
notice of, and to vote at, the meeting. Accordingly, only stockholders of record on our books at the close of business on that
date will be entitled to notice of and to vote at the meeting and any adjournment and postponement thereof.
Stockholders are cordially
invited to attend the Annual Meeting. If you wish to vote shares held in your name at the Annual Meeting, please bring your proxy
card or voting instruction form (for holders of Exchangeable Shares), and picture identification to the meeting. Please note that
Bionik shares may only be voted by the record owner of the shares, so the holders of Bionik shares held in the name of an intermediary
and who wish to vote those shares in person at the meeting must obtain a valid proxy from the intermediary in order to vote the
shares in person at the meeting.
Your vote is extremely
important. We appreciate you taking the time to vote promptly. After reading the proxy statement, please vote, at your earliest
convenience, by completing, signing and returning your proxy card or voting instruction form (for holders of Exchangeable Shares)
by mail. If you decide to attend the Annual Meeting and would prefer to vote by ballot, your proxy or voting instructions, as the
case may be, will be revoked automatically and only your vote at the Annual Meeting will be counted.
YOUR SHARES CANNOT
BE VOTED UNLESS YOU VOTE BY: (i) A PAPER PROXY CARD, COMPLETED, SIGNED AND RETURNED BY MAIL, OR BY INTERNET, IF YOU ARE A
HOLDER OF OUR COMMON STOCK, (ii) A PAPER VOTING INSTRUCTION FORM PROVIDED TO THE TRUSTEE OF OUR SPECIAL VOTING PREFERRED STOCK,
COMPLETED, SIGNED AND RETURNED BY MAIL TO THE TRUSTEE, IF YOU ARE A HOLDER OF OUR EXCHANGEABLE SHARES, OR (iii) ATTENDING
THE ANNUAL MEETING AND VOTING IN PERSON.
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By Order of the Board of Directors
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/s/
Eric Dusseux
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Chief Executive Officer and Director
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Toronto, Ontario, Canada
February 11, 2019
BIONIK LABORATORIES CORP.
PROXY STATEMENT FOR THE
ANNUAL MEETING OF STOCKHOLDERS
March 18, 2019
This proxy statement
is furnished in connection with the solicitation of proxies by the Board of Directors (the “Board”) of Bionik Laboratories
Corp. (“we,” “our,” “us,” “Bionik” or the “Company”), to be voted at
the annual meeting of stockholders (the “Annual Meeting”) to be held at the offices of the Company at 483 Bay Street,
N105, Toronto, Ontario, Canada M5G 2C9 on March 18, 2019 at 10:00 a.m., Eastern Time, or at any adjournment or postponement of
the meeting.
This proxy statement
and form of proxy will first be sent to stockholders on or about February 13, 2019.
The cost of the Annual
Meeting, including the cost of preparing and delivering this proxy statement and proxy, will be borne by us. We may use the services
of our directors, officers, employees and contractors to solicit proxies, personally or by telephone, but at no additional salary
or compensation. We will also request banks, brokers and others who hold our voting securities in nominee names to distribute proxy
soliciting materials to beneficial owners and will reimburse such nominees for reasonable out-of-pocket expenses which they may
incur in so doing.
Stockholders Entitled to Vote
The holders of record
of our common stock, $0.001 par value per share (“Common Stock”), and the holder of the sole share of the Special Voting
Preferred Stock, $0.001 par value per share (the “Special Voting Preferred Stock”), as of January 28, 2019 are entitled
to notice of and to vote at the Annual Meeting. The holder of the Special Voting Preferred Stock holds the share as trustee for
the holders of exchangeable shares (“Exchangeable Shares”) of our indirect subsidiary Bionik Laboratories Inc. (“Bionik
Canada”) as set forth in the Voting and Exchange Trust Agreement among the Company, Bionik Canada and Computershare Trust
Company of Canada (the “Trustee”), dated February 26, 2015 (the “Trust Agreement”). The Exchangeable Shares
were issued in connection with the acquisition by us of Bionik Canada on February 26, 2015. The Exchangeable Shares have substantially
the same economic and voting rights as our Common Stock, and holders are entitled to instruct the Trustee as to how to vote their
Exchangeable Shares or they may attend the Annual Meeting and exercise their vote personally.
Each share of Common
Stock is entitled to one vote. The one share of Special Voting Preferred Stock is entitled to an aggregate number of votes equal
to the number of Exchangeable Shares issued and outstanding as of the record date. However, the Trustee will exercise each vote
attached to the Special Voting Preferred Stock only on the basis of instructions received from the holders of record of the Exchangeable
Shares. In the absence of instructions from a holder as to voting, the Trustee will not exercise any voting rights with respect
to the Exchangeable Shares held by such holder. The holders of the Common Stock and the holder of the Special Voting Preferred
Stock vote together as a single class.
Voting Your Shares
Common Stock
Holders of our Common
Stock may elect to vote in one of three methods:
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By Mail
– You may vote your shares by signing and returning the enclosed proxy card.
If you vote by proxy card, your “proxy” (each or any of the individuals named on the proxy card) will vote your shares
as you instruct on the proxy card. If you sign and return the proxy card, but do not give instructions on how to vote your shares,
your shares will be voted as recommended by the Board, as described below.
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By
Internet
– You may vote your shares by Internet by going to
www.vstocktransfer.com/proxy
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Follow the instructions included in the proxy card to vote by internet.
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In Person
– You may attend the Annual Meeting and vote in person. We will give you
a ballot when you arrive. If your stock is held in the name of your broker, bank or another nominee (a “Nominee”),
you must present a proxy from that Nominee in order to verify that the Nominee has not voted your shares on your behalf.
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If your shares are
held in “street name” (held in the name of a bank, broker or other holder of record), you will receive instructions
from the holder of record. You must follow the instructions of the holder of record in order for your shares to be voted. Internet
voting also will be offered to stockholders owning shares through certain banks and brokers. If your shares are not registered
in your own name and you plan to vote your shares in person at the Annual Meeting, you should contact your broker or agent to obtain
a legal proxy or broker’s proxy card and bring it to the Annual Meeting in order to vote.
Exchangeable Shares
Holders of Exchangeable
Shares are receiving these proxy materials in accordance with the provisions of the Exchangeable Shares and the Trust Agreement.
If you are a holder of record of Exchangeable Shares, there are two ways to vote your Exchangeable Shares:
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By Mail
– You may vote by signing and returning the enclosed voting instruction form
to the Trustee. This form permits you to instruct the Trustee to vote at the Annual Meeting through its share of the Special Voting
Preferred Stock. The Trustee must receive your voting instruction by 5:00 p.m. (Toronto Time) on March 17, 2019, at the address
indicated on the voting instruction form or for an adjourned meeting not less than 48 hours before the time set for the holding
of the adjourned meeting. This will give the Trustee time to tabulate the voting instructions and vote on your behalf.
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In Person
– If you wish to attend the meeting and vote in person rather than have
the Trustee exercise voting rights on your behalf, you may instruct the Trustee (by following the procedures set forth in the enclosed
voting instruction form) to give you or your designee a proxy to exercise the voting rights personally at the Annual Meeting. You
may also instruct the Trustee to give a proxy to a designated representative of Bionik to exercise such voting rights.
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Only holders of Exchangeable
Shares whose names appear on the records of Bionik as the registered holders of Exchangeable Shares on the Record Date are entitled
to instruct the Trustee as to how to exercise voting rights in respect of their Exchangeable Shares at the Annual Meeting. If on
the Record Date your Exchangeable Shares were held, not in your name, but rather in the name of a Nominee, then you are the beneficial
owner of shares held in “street name” and these proxy materials, if you have received them, are being forwarded to
you by that Nominee. The Nominee holding your account is considered to be the stockholder of record for purposes of instructing
the Trustee as to how to vote your Exchangeable Shares. As a beneficial owner, you have the right to direct your Nominee on how
to instruct the Trustee to vote your Exchangeable Shares.
Quorum and Votes Required to Approve
Proposals
On January 28, 2019,
there were a total of 2,337,964 shares of Common Stock and 273,574 Exchangeable Shares outstanding. The presence in person or by
proxy of a majority of the outstanding shares of Common Stock and Exchangeable Shares entitled to vote at the meeting will constitute
a quorum for the transaction of business at the Annual Meeting.
Executed proxies
that contain no instructions will be voted:
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FOR
each of the individuals nominated to be a director;
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FOR
the resolution approving the compensation of our named executive officers;
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FOR
the ratification of appointment of MNP LLP as our independent registered public accounting
firm for the fiscal year ending March 31, 2019; and
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In accordance with the judgment of the persons named as proxies in the form of proxy on such
other business or matters which may properly come before the Annual Meeting.
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Other than the matters set forth in the
Notice of Annual Meeting accompanying this proxy statement, we know of no matters to be brought before the Annual Meeting.
Brokers and other nominees
who hold Common Stock in “street name” and do not receive instructions from their clients on how to vote on a particular
proposal are permitted to vote on routine proposals but not on non-routine proposals. The absence of votes from brokers on non-routine
proposals are referred to as broker non-votes. Proposals such as the ratification of the independent registered public accounting
firm are considered routine. The election of directors and the proposal regarding the compensation of our named executive officers
are non-routine. Thus, if stockholders do not give their broker or nominee specific instructions, their shares may not be voted
for the election of directors or the proposal regarding compensation. Abstentions and broker non-votes will be counted as present
for purposes of establishing a quorum.
There are different
voting requirements for the various proposals:
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Directors are elected by a plurality of votes cast at the Annual Meeting (assuming a quorum is
present). Consequently, any shares not voted at the Annual Meeting, whether due to abstentions, broker non-votes or otherwise,
will have no impact on the election of directors.
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The advisory vote on the compensation of our named executive officers as described in this proxy statement (“Say-on-Pay”)
will be approved if it receives the affirmative vote of a majority of the voting power of the shares present in person or represented
by proxy at the Annual Meeting and entitled to vote. An abstention will count as a vote “against” this proposal. Broker
non-votes will have no effect on this proposal as brokers are not entitled to vote on such proposals in the absence of voting instructions
from the beneficial owner.
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The ratification of the appointment of our independent registered public accountant will be approved if it receives the affirmative
vote of a majority of the voting power of the shares present in person or represented by proxy at the Annual Meeting and entitled
to vote. An abstention will count as votes “against” this proposal. The ratification of the appointment of our independent
registered public accountant is a routine proposal on which a broker or other nominee is generally empowered to vote in the absence
of voting instructions from the beneficial owner, so broker non-votes are unlikely to result from this proposal.
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Revocation of Proxy or Voting Instruction
Form
If you are a holder
of Common Stock, you may revoke your proxy at any time before the proxy is voted at the Annual Meeting. This can be done by either
submitting another properly completed proxy (either card or through the internet) with a later date, sending a written notice of
revocation to the Company with a later date or by attending the Annual Meeting and voting in person. You should be aware that simply
attending the Annual Meeting will not automatically revoke your previously submitted proxy; rather you must notify a Company representative
at the Annual Meeting of your desire to revoke your proxy and vote in person. Written notice revoking a proxy should be sent to
the tabulation agent or to Leslie Markow, Chief Financial Officer, at 483 Bay Street, N105, Toronto, Ontario Canada M5G 2C9.
If you are a holder
of Exchangeable Shares, you have the right to revoke any instructions previously given to the Trustee by giving written notice
of revocation of such instructions to the Trustee or by executing and delivering to the Trustee a later-dated voting instruction
by 5:00 p.m., Eastern time on March 17, 2019, at the address indicated on the voting instruction form or for an adjourned meeting
not less than 48 hours before the time set for the holding of the adjourned meeting.
YOUR VOTE IS IMPORTANT. PLEASE RETURN
THE PROXY BY MAIL PROMPTLY SO YOUR SHARES CAN BE REPRESENTED, EVEN IF YOU PLAN TO ATTEND THE MEETING IN PERSON.
ELECTION OF DIRECTORS
(Proposal 1 on Proxy Card and Voting
Instruction Form)
The Board currently
consists of seven members, with one vacancy on the Board. All of such members have been nominated to serve until the next annual
meeting of stockholders and until their successors are duly elected and qualified. The eight nominees listed below have indicated
that they are willing and able to serve as directors. If any of the nominees becomes unable or unwilling to serve, the accompanying
proxy may be voted for the election of such other person as shall be designated by the Board.
Directors
The following table
reflects our directors nominated for election to the Board as of the date of this proxy statement:
Name
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Age
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Position
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Andre Auberton-Herve
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57
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Chairman of the Board
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Eric Dusseux
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51
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Chief Executive Officer and Director
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Remi Gaston-Dreyfus
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63
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Director
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P. Gerald Malone
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68
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Director
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Joseph Martin
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70
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Director
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Charles Matine
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60
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Director
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Audrey Thevenon
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40
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Director
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Michal Prywata
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27
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Chief Technology Officer
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The following information summarizes the
business experience of our directors:
Andre Auberton-Herve:
Chairman of the Board
. Mr. Auberton-Herve has been the Chairman of the Company’s Board of Directors since January
24, 2018. Mr. Auberton-Herve brings substantial leadership experience within strategic, operational, and financial activities from
past roles.
Mr. Auberton-Herve is the founder of 4A Consulting & Engineering, which
provides strategic advice and consulting services with respect to renewable energy and digital innovation, and has served as its
President and CEO since its founding in July 2015. 4A Consulting provided consulting services to the Company from February 2017
until Mr. Auberton-Herve’s appointment as Chairman. Mr. Auberton-Herve co-founded Soitec SA, a publicly traded company on
the Euronext Paris stock exchange which designs and manufactures innovative semiconductor materials which are used in many smartphone
platforms and computing activities, where he was President and CEO from July 1992 until January 2015, then Chairman and Chairman
Emeritus since September 2015.
While at Soitec SA, Mr. Auberton-Herve was responsible for overseeing the strategic,
operational and financial activities of the company. He built an international high-tech group in ten countries and five manufacturing
facilities in Europe, Asia and the U.S. Mr. Auberton-Herve also led the company through its listing on Euronext in 1999, raising
significant amounts of capital since then with some of the world’s largest investment banks. He has been nominated Knight
of the Legion of Honor and Knight of the Order of Merit in France. Mr. Auberton-Herve holds a Doctorate degree in Semiconductor
Physics and a Master’s degree in Materials Science from Ecole Centrale de Lyon in France.
The
Company believes that Mr. Auberton-Herve is qualified as a Board member of the Company because of his substantial strategic, operational
and leadership experience.
Dr. Eric Dusseux:
Chief Executive Officer and Director
. Dr. Dusseux has served as the Company’s Chief Executive Officer since September
1, 2017 and has served as a director since July 22, 2017. He was previously the President Europe at Auregen BioTherapeutics SA
and was a director at Auregen BioTherapeutics Inc., which is translating 3D bioprinting technology for innovative treatments for
patients with rare disorders, since February 2017. Prior to that, from November 2016 through January 2017, Dr. Dusseux was President
Europe at Bemido SA, a family office. From September 2012 to October 2016, Dr. Dusseux was an Executive Committee Member in the
Corporate Strategy Department of Sanofi Pasteur SA, the vaccines division of Sanofi, a global healthcare leader, where he led corporate
strategy, business intelligence, and international business development. He has also served in key roles at GlaxoSmithKline Biologicals
from January 2008 to June 2012, leading product development and business growth strategy. Dr. Dusseux also gained significant experience
providing strategic advice for numerous pharmaceutical, medical device, payer and biotechnology clients, while working for the
Boston Consulting Group from 2002 to 2007. Dr. Dusseux is a Medical Doctor, specializing in Public Health. Dr. Dusseux also holds
a Master of Science in Physical Chemistry and is a graduate of the French Business School H.E.C. in Paris (MBA, Isa). We believe
that Dr. Dusseux is qualified as a Board member of the Company because of his substantial strategic and leadership experience within
the healthcare industry.
Remi Gaston-Dreyfus:
Director
. Mr. Gaston-Dreyfus has been a director of the Company since September 1, 2017. Since 2007, Mr. Gaston-Dreyfus
has been the CEO and Founder of RGD Investissements S.A.S. in Paris, a developer of and investor in real estate assets in Paris.
Prior to 2007, Mr. Gaston-Dreyfus was a shareholder, Chairman and CEO of the Photo-Journalism group A.G.I. (including Gamma Press
Agency). Mr. Gaston-Dreyfus was a co-founder of a Parisian law firm in 1984, and was a French lawyer until 1992. We believe that
Mr. Gaston-Dreyfus is qualified to serve as a member of the Board of Directors due to his experience as an entrepreneur and his
legal training
P. Gerald Malone:
Director
. Mr. Malone has been a director of the Company since March 19, 2018. Since 1997, Mr. Malone has held a number
of directorships and chairmanships in private and AIM listed companies in the healthcare, IT and energy sectors in the UK and the
USA. He has extensive experience within the financial services sector, serving since 2001 as a board member and ultimately Chairman
of Aberdeen Asia-Pacific Income Fund (FAX), a U.S. closed-end mutual fund. He also serves as a director of a number of other U.S.
and Canadian closed- and open-end mutual funds, and of the Washington, D.C.-based Mutual Fund Directors Forum, a body representing
independent fund directors. A Scottish lawyer by profession, Mr. Malone was previously a Member of Parliament in the U.K. from
1983 to 1997, and served as Minister of State for Health in John Major’s government from 1994 to 1997. Mr. Malone is qualified
as a Board member of the Company because of his substantial commercial strategic, government and leadership experience.
Joseph Martin:
Director
. Mr. Martin currently serves as Chairman of Brooks Automation, a global provider of automation, vacuum and instrumentation
solutions. He also serves as a director of Collectors Universe, Inc., a third party grading and authentication service for high-value
collectibles, of Allegro Microsystems, a manufacturer of high-performance semiconductors for the automotive market, Fairchild Semiconductor,
ChipPAC Inc. and Soitec Inc. In 2000
CFO Magazine
awarded Mr. Martin the CFO of the Year award for turnaround
operations. Mr. Martin holds an Executive Masters certification from The American College of Corporate Directors. We believe Mr.
Martin is qualified to serve as a member of the Board of Directors due to his extensive board and financial expertise.
Charles Matine:
Director.
Mr. Matine serves as an Advisory Board Member of Enlaps, a start-up company providing a time-lapse solution
to photographers, since February 2018. Since July 2015, Mr. Matine has served as a strategic advisor to C4 Ventures, a London-based
venture fund supporting media, e-commerce and hardware startups. In April 2014, Mr. Matine founded B & Associates, a marketing
and digital transformation consultancy firm, and has served as its CEO since April 2014. Prior to that, Mr. Matine served as a
Business Unit Director of Apple France from July 2010 to April 2014, where he led the Education and Research business unit, and
as a Senior Marketing Manager of Apple Europe from April 2006 to June 2010, where he was responsible for promoting Apple products
and defining marketing, PR and branding strategies within central Europe, the Middle East and Africa. Prior to Apple, Mr. Matine
worked extensively in marketing and advertising, promoting technology products and brands throughout Europe. Mr. Matine studied
at Sciences Po (the Paris Institute for Political Studies, Section Public Service) and holds the IFA-Sciences Po non-executive
director certificate.
We believe that Mr. Matine is qualified as to serve as a member
of the Board of Directors because of his experience with product marketing and go-to-market strategies.
Audrey Thevenon,
Ph.D.: Director.
Dr. Thevenon serves as a Program Officer on the Board of Life Sciences at the National Academies
of Sciences, Engineering and Medicine (“NASEM”), a private, nonprofit institution that provides high-quality, objective
advice on science, engineering, and health matters, since October 2016, and previously served as the Associate Program Officer
of NASEM from August 2014 to October 2016. Dr. Thevenon also serves as the Managing Editor of the journal Institute for Laboratory
Animal Research at NASEM. From February 2012 to July 2014, Dr. Thevenon was a Postdoctoral Fellow at the Uniformed Services University
of the Health Sciences in Bethesda, MA. Dr. Thevenon has also completed a Postdoctoral Fellowship at the University of Hawaii in
placental pharmacology. Dr. Thevenon has a Ph.D. and an MS both in Biology from Georgetown University, as well as an MS in Cell
Biology & Physiology and a BS in Life Sciences and Environment from the University of Rennes 1 in France. We believe that
Dr. Thevenon is qualified as to serve as a member of the Board of Directors because of her experience in medicine and scientific
innovation.
Michal Prywata:
Chief Technology Officer
. Mr. Prywata is the co-founder of Bionik Canada and has served as our Chief Technology Officer
since June 2017, and Chief Operating Officer from April 2013 to June 2017. Mr. Prywata previously served as a director from March
2011 until September 2018. Mr. Prywata previously served as our Chief Executive Officer from March 2011 to April 2013. Mr. Prywata
studied biomedical engineering at Ryerson University until the end of his second year, with a focus on electronics and software
development for medical products. He has a track record of winning technology showcases and inventing technologies that address
significant unmet needs and untapped markets. He has spent the past 6 years with Bionik Canada, managing technological advancements,
managing day-to-day operations, and developing concepts into products. In addition, Mr. Prywata, together with his co-founder,
was responsible for raising and securing initial seed capital and subsequent capital raises. Mr. Prywata is the co-inventor of
the Company’s ARKE technology platform. We believe Mr. Prywata is qualified to serve as a member of the Board of Directors
due to his being a founder of the Company and his current executive position with the Company. We also believe that Mr. Prywata
is qualified due to his experience in the medical device industry.
There are no family
relationships among any of our current or proposed officers and directors.
Our officers serve
at the pleasure of the Board.
Vote Necessary to Approve Proposal 1
If a quorum is present
at the meeting, directors are elected by a plurality of votes cast at the Annual Meeting.
Stockholders do not
have cumulative voting rights in the election of directors. You may vote for all of the nominees as directors or withhold your
vote from any or all of the nominees as directors.
The Board of Directors recommends a vote
FOR
all the director nominees
listed above.
INFORMATION CONCERNING EXECUTIVE OFFICERS
The names of our executive
officers, their ages as of February 11, 2019 and certain other information about them are set forth below:
Name
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Age
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Position
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Eric Dusseux
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50
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Chief Executive Officer and Director
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Michal Prywata
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27
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Chief Technology Officer
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Leslie Markow
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58
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Chief Financial Officer
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Renaud Maloberti
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50
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Chief Commercial Officer
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Eric Dusseux:
Chief Executive Officer and Director
.
Biographical information regarding Mr. Dusseux
is set forth under “Election of Directors.”
Michal Prywata:
Chief Technology Officer
.
Biographical information regarding Mr. Prywata is
set forth under “Election of Directors.”
Leslie Markow:
Chief Financial Officer
. Ms. Markow has served as the Company’s Chief Financial Officer since September 2014. She
is a CPA CA in Canada, a US CPA (Illinois) and Chartered Director. From 2002 to 2004 and since 2010, Ms. Markow has provided outsourced
CFO, controller and financial services on a part-time basis to numerous public and private companies. In addition, in 2012-2013,
Ms. Markow was the Chief Financial Officer of Stewardship Ontario, a supply chain operator of Blue Box and Orange Drop Programs
for industry in the Province of Ontario. In 2010-2012, Ms. Markow was the Chief Financial Officer of Blue Ocean NutraSciences Inc.
(formerly Solutions4CO2 Inc.), a public CO2 solution industrial company. From 2004 to 2010, Ms. Markow was the Director of Client
Service for Resources Global Professionals, a NASDAQ-listed global consulting firm. From 1991-2002, she held various positions
at SunOpta Inc. a TSX-NASDAQ listed company, which at that time was named Stake Technology Ltd. and was an industrial technology
manufacturer, including as Chief Administrative Officer, Vice-President Regulatory Reporting & Compliance, Chief Financial
Officer and Vice-President–Finance and Controller. Ms. Markow started her career in 1983 with predecessors of PricewaterhouseCoopers,
ultimately holding a position as Senior Audit Manager and in 1991, she moved to SunOpta Inc. Ms. Markow is a member of the Board
of Directors and Chairperson of the Audit Committee of Jemtec Inc., a Canadian public company that sells monitoring hardware and
software. She also is a member of Financial Executives Canada, where she is a past National Board Director, Toronto Board Director,
Toronto Chapter President and the winner of the Toronto Leadership Award, and is a faculty member of The Directors College, which
is a joint venture of McMaster University and The Conference Board of Canada.
Renaud Maloberti:
Chief Commercial Officer
. Mr. Maloberti has served as the Company’s Chief Commercial Officer since June 11, 2018.
From April 2012 through May 2018, Mr. Maloberti held various positions at FujiFilm SonoSite Inc., which develops cutting-edge,
portable and point-of-care ultrasound solutions, most recently as Vice President and General Manager of the SonoSite High Frequency
Division, where as he led the development and launch of the world’s first and only ultra-high frequency ultrasound and led
the division through double-digit revenue growth for six years. Mr. Maloberti previously served as General Manager, Americas for
BK Medical Systems, a subsidiary of Analogic Corporation (Nasdaq:ALOG), a leader for advanced imaging technologies and real-time
guidance systems in disease diagnosis and treatment, from November 2006 through March 2012. Prior to that, from October 2004 through
October 2006, he was the Director of Marketing and Product Management at Draeger Medical Systems for its patient monitoring and
healthcare IT business. From July 1994 through October 2004, Mr. Maloberti held various positions with GE Healthcare and GE Medical
Systems, most recently as Manager, Global Radiography Business. Mr. Maloberti holds an MBA in global marketing from the F.W. Olin
Graduate School of Business at Babson College, and a Bachelor’s Degree in International Finance from ESLSCA Business School
in Paris, France.
CORPORATE GOVERNANCE
Communications to the Board of Directors
Our Board maintains
a policy of reviewing and considering communications from our stockholders and other interested parties. Any interested party who
desires to contact the Board may do so by fax, telephone, or regular mail addressed to the Board of Directors, c/o Leslie Markow,
Chief Financial Officer, 483 Bay Street, N105, Toronto, Ontario, Canada M5G 2C9; telephone: (416) 640-7887 x108, email:
lm@bioniklabs.com
.
Such communications can be sent to the Board by mail in a sealed envelope addressed to an individual director, the non-management
directors or the full Board. The Corporate Secretary will deliver the envelope unopened (1) if addressed to a director, to
the director, (2) if addressed to the Board, to the Chairman of the Board who will report thereon to the Board, or (3) if
addressed to the non-management directors, to the non-management directors. Stockholders can also send electronic communications
to the Board via e-mail to Leslie Markow, our Chief Financial Officer, who will forward the communication to the intended recipient.
Our directors periodically
review communications from stockholders and other interested parties and determine, in their discretion, whether the communication
addresses a matter that is appropriate for consideration by the Board. While we do not have a formal policy regarding attendance
of annual meetings, directors are encouraged to attend the annual meeting of stockholders and receive communications directly from
stockholders at that time. At our last annual meeting, all of our directors who were directors at that time attended in person
or by teleconference.
Board Leadership Structure, Committees
and Risk Oversight
The business and affairs
of the Company are managed under the direction of our Board which as of February 11, 2019 is comprised of Messrs.
Auberton-Herve
,
Dusseux, Gaston-Dreyfus, Martin, Malone, Matine and Dr. Thevenon.
There have been no
changes in any state law or other procedures by which security holders may recommend nominees to our Board.
Committees of the Board of Directors
Presently,
the Board has two standing committees — the Audit Committee and the Compensation Committee. All members of the Audit Committee
and the Compensation Committee are, and are required by the charters of the respective committees to be, independent as determined
under Nasdaq Listing rules.
Audit Committee
On
May 30, 2018, our Board formed an Audit Committee, of whom Messrs. Martin (Chairman), Malone and Matine are the members. Each
of the members of the Audit Committee is independent, and the Board has determined that Messrs. Martin and Malone are each an
“audit committee financial expert,” as defined in SEC rules. The Audit Committee acts pursuant to a written charter
which is available through our website at
www.bioniklabs.com.
The
primary functions of the Audit Committee are to assist the Board in overseeing (i) the effectiveness of the Company’s accounting
and financial reporting processes and internal controls and the audits of the Company’s financial statements, (ii) the qualifications,
independence, appointment, retention, compensation and performance of the Company’s registered public accounting firm and
(iii) the performance of the Company’s internal audit department or department or person(s) having the equivalent responsibility
and functions.
Compensation Committee
On
May 30, 2018, our Board formed a Compensation Committee, of whom Messrs. Malone (Chairman) and Martin and Dr. Thevenon are the
members. Each of the members of the Compensation Committee is independent. The Compensation Committee acts pursuant to a written
charter which is available through our website at
www.bioniklabs.com.
The
primary functions of the Compensation Committee are to (i) review and approve corporate goals and objectives relevant to executive
compensation, (ii) determine and review the CEO’s and other executive officers’ compensation, and (iii) make recommendations
to the Board concerning (a) compensation and (b) adoption of equity incentive plans.
Risk
Oversight
Companies face a variety
of risks, including financial reporting, legal, credit, liquidity, and operational risk. The Board believes an effective risk management
system will (1) timely identify the material risks that the Company faces, (2) communicate necessary information with
respect to material risks to senior executives and, as appropriate, to the Board or relevant Board Committee (if any), (3) implement
appropriate and responsive risk management strategies consistent with Company’s risk profile, and (4) integrate risk
management into Company decision-making.
The Board as a whole
oversees risk management after receiving briefings provided by management and advisors as well as its own analysis and conclusions
regarding the adequacy of the Company’s risk management processes.
Board Meetings
During the fiscal year
ended March 31, 2018, our Board met 11 times. No director who served as such in the fiscal year ended March 31, 2018 attended less
than 75% of the meetings held during such period.
Director Nominations and Qualifications
Our Board has no nominating
committee. The Board has determined that director nominees could be selected, or recommended for our Board's selection, by the independent members
of the Board. The Board does not currently have a charter or written policy with regard to the nomination process. The nominations
of the directors standing for election at the Annual Meeting for the fiscal year ended March 31, 2019 were recommended and approved
by our independent directors.
At this time, we do
not have a formal policy with regard to the consideration of any director nominees recommended by our stockholders because historically
we have not received recommendations from our stockholders and the costs of establishing and maintaining procedures for the consideration
of stockholder nominations would be unduly burdensome. However, any recommendations received from stockholders will be evaluated
in the same manner that potential nominees recommended by Board members, management or other parties are evaluated. Any stockholder
nominations proposed for consideration should include the nominee's name and qualifications for Board membership and should be
addressed to: Leslie Markow, Chief Financial Officer, Bionik Laboratories Corp., 483 Bay Street, N105, Toronto, Ontario, Canada
M5G 2C9. We do not intend to treat stockholder recommendations in any manner different from other recommendations.
Qualifications for
consideration as a director nominee may vary according to the particular areas of expertise being sought as a complement to the
existing Board composition. However, in making its nominations, our Board as a whole considers, among other things, an individual's
business experience, industry experience, financial background, breadth of knowledge about issues affecting our company, time available
for meetings and consultation regarding company matters and other particular skills and experience possessed by the individual.
We do not currently
employ an executive search firm, or pay a fee to any other third party, to locate qualified candidates for director positions.
Code of Business Conduct and Ethics Policy
We adopted a Code
of Business Conduct and Ethics that applies to, among other persons, our principal executive officers, principal financial officer,
principal accounting officer or controller, and persons performing similar functions. Our Code of Business Conduct and Ethics
is available on our website
www.bioniklabs.com
.
Director Independence
We use the definition
of “independence” of The NASDAQ Stock Market to make this determination. NASDAQ Listing Rule 5605(a)(2) provides that
an “independent director” is a person other than an officer or employee of the company or any other individual having
a relationship, which, in the opinion of the Company’s Board, would interfere with the exercise of independent judgment in
carrying out the responsibilities of a director. The NASDAQ listing rules provide that a director cannot be considered independent
if:
|
·
|
The director is, or at any time during the past three years was, an employee of the company;
|
|
|
|
|
·
|
The director or a family member of the director accepted any compensation from the company in excess of $120,000 during any period of 12 consecutive months within the three years preceding the independence determination (subject to certain exclusions, including, among other things, compensation for board or board committee service);
|
|
|
|
|
·
|
A family member of the director is, or at any time during the past three years was, an executive officer of the company;
|
|
|
|
|
·
|
The director or a family member of the director is a partner in, controlling stockholder of, or an executive officer of an entity to which the company made, or from which the company received, payments in the current or any of the past three fiscal years that exceed 5% of the recipient’s consolidated gross revenue for that year or $200,000, whichever is greater (subject to certain exclusions);
|
|
·
|
The director or a family member of the director is employed as an executive officer of an entity where, at any time during the past three years, any of the executive officers of the company served on the compensation committee of such other entity; or
|
|
|
|
|
·
|
The director or a family member of the director is a current partner of the company’s outside auditor, or at any time during the past three years was a partner or employee of the company’s outside auditor, and who worked on the company’s audit.
|
Under such definitions,
Messrs. Martin, Malone, Matine, Gaston-Dreyfus and Dr. Thevenon are considered independent directors.
Audit Report of the Board of Directors
The Board has reviewed
and discussed the audited consolidated financial statements of Bionik Laboratories Corp. for the fiscal year ended March 31, 2018,
with management and have reviewed related written disclosures of MNP LLP, our independent accountants of the matters required to
be discussed by SAS 114 (Codification of Statements on Auditing Standards, AU Section 380), as amended, with respect to those statements.
We have reviewed the written disclosures and the letter from MNP LLP required by regulatory and professional standards and have
discussed with MNP LLP its independence in connection with its audit of our most recent financial statements. Based on this review
and these discussions, the Board recommended that the financial statements be included in the Form 10-K for the fiscal year ended
March 31, 2018.
We have also reviewed
the various fees that we paid or accrued to MNP LLP during the fiscal years ended March 31, 2018 and 2017 for services they rendered
in connection with our annual audits and quarterly reviews, as well as for any other non-audit services they rendered.
The following table
shows the fees for professional services rendered by MNP LLP for the audit of our financial statements for the fiscal years ended
March 31, 2018 and 2017, and fees billed for other services rendered by MNP LLP during those periods:
|
|
Fiscal
Year
Ended
|
|
|
Fiscal
Year
Ended
|
|
Fee Category
|
|
2018
|
|
|
2017
|
|
Audit Fees
|
|
$
|
122,162
|
|
|
$
|
70,738
|
|
Audit Related Fees
|
|
|
-
|
|
|
$
|
27,525
|
|
Tax Fees
|
|
$
|
33,804
|
|
|
$
|
13,980
|
|
All Other Fees
|
|
$
|
26,606
|
|
|
$
|
7,837
|
|
Total Fees
|
|
$
|
182,572
|
|
|
$
|
119,710
|
|
Audit fees consist
of fees billed for professional services rendered for the audit of our financial statements and review of the interim financial
statements included in quarterly reports and services that are normally provided by the above auditors in connection with statutory
and regulatory fillings or engagements. Audit-related fees consist of fees billed for professional services rendered for the review
of SEC filings or other reports containing the audited financial statements. Tax fees consist of fees to prepare the Company’s
federal and state income tax returns. Other fees relate to advisory services related research on accounting or other regulatory
matters.
Pre-Approval Policies and Procedures
Our Board is in the
process of adopting a policy on pre-approval of audit and permissible non-audit services.
The Board of Directors:
Andre Auberton-Herve, Chairman
Eric Dusseux
Remi Gaston-Dreyfus
P. Gerald Malone
Joseph Martin
Charles Matine
Audrey Thevenon
COMPENSATION OF DIRECTORS AND EXECUTIVE
OFFICERS
The Compensation Committee
of our Board is responsible for reviewing and approving the compensation of our executive officers and directors and our general
compensation, benefits and perquisites policies and practices, including, without limitation, our incentive-compensation plans
and equity-based compensation plans (in circumstances in which equity-based compensation plans are not subject to stockholder approval,
such plans shall be subject to Board approval). The Compensation Committee is also responsible for reviewing and approving the
goals and objectives relevant to the compensation of our Chief Executive Officer and reviewing and making recommendations to the
Board with regard to the compensation of our directors. The Compensation Committee may delegate to our Chief Executive Officer
the responsibility for reviewing the compensation of our named executive officers other than the Chief Executive Officer. However,
any recommendations by the Chief Executive Officer shall be submitted to, reviewed and approved by, the Board as a whole.
Summary Compensation Table
The following table
sets forth information regarding each element of compensation that was paid or awarded to the named executive officers of the Company
for the periods indicated.
Name and
Principal Position
|
|
Year(1)
|
|
|
Salary
($)
|
|
|
Bonus
($)
|
|
|
Stock
Awards
($)
|
|
|
Option
Awards (2)
($)
|
|
|
Non-Equity
Incentive Plan
Compensation
($)
|
|
|
All Other
Compensation
($)
|
|
|
Total
($)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eric Dusseux (3)
|
|
|
2018
|
|
|
|
229,987
|
|
|
|
136,719
|
|
|
|
–
|
|
|
|
983,602
|
|
|
|
–
|
|
|
|
12,547
|
|
|
|
1,362,855
|
|
Chief Executive Officer
|
|
|
2017
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peter Bloch (4)
|
|
|
2018
|
|
|
|
114,583
|
|
|
|
233,750
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
644,327
|
|
|
|
992,660
|
|
Former CEO
|
|
|
2017
|
|
|
|
275,000
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
13,750
|
|
|
|
288,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michal Prywata
|
|
|
2018
|
|
|
|
210,000
|
|
|
|
103,950
|
|
|
|
–
|
|
|
|
67,450
|
|
|
|
–
|
|
|
|
11,247
|
|
|
|
392,647
|
|
Chief Technology Officer
|
|
|
2017
|
|
|
|
210,000
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
10,500
|
|
|
|
220,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leslie Markow
|
|
|
2018
|
|
|
|
210,000
|
|
|
|
116,550
|
|
|
|
–
|
|
|
|
40,470
|
|
|
|
–
|
|
|
|
11,068
|
|
|
|
378,088
|
|
Chief Financial Officer
|
|
|
2017
|
|
|
|
210,000
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
10,500
|
|
|
|
220,500
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Timothy McCarthy (5)
|
|
|
2018
|
|
|
|
260,000
|
|
|
|
97,500
|
|
|
|
–
|
|
|
|
691,106
|
|
|
|
–
|
|
|
|
-
|
|
|
|
1,048,606
|
|
Former Chief Commercialization Officer
|
|
|
2017
|
|
|
|
166,684
|
|
|
|
–
|
|
|
|
–
|
|
|
|
652,068
|
|
|
|
–
|
|
|
|
1,000
|
|
|
|
819,752
|
|
(1)
|
“2018” represents the fiscal year ended March 31, 2018 and “2017” represents the fiscal year ended March 31, 2017.
|
(2)
|
For assumptions made in such valuation, see Note 10 to the Company’s audited consolidated financial statements included in this prospectus, commencing on page F-19.
|
(3)
|
On September 1, 2017, Mr. Dusseux was hired as our Chief Executive Officer at an annual base salary of CDN $500,000.
|
(4)
|
Mr. Bloch served as the Company’s Chief Executive Officer from April 2013 until September 1, 2017, and acted as a consultant until November 2017. His consulting income and severance in 2018 is reflected under All Other Compensation.
|
(5)
|
On August 8, 2016, Mr. McCarthy was hired as our Chief Commercialization Officer with a base salary of $260,000. Mr. McCarthy left the Company on April 27, 2018.
|
Employment Agreements
Eric Dusseux
The Company entered
into an employment agreement with Dr. Dusseux on September 1, 2017, pursuant to which he serves as our Chief Executive Officer
(the “Dusseux Employment Agreement”). Under the Dusseux Employment Agreement, Dr. Dusseux will receive an initial annual
base salary of CDN$500,000. In addition, Dr. Dusseux may receive up to 50% of his base salary as a target bonus based on measurable
performance goals to be mutually agreed upon once employment starts on a pro-rata basis in the first fiscal year.
The Company also entered
into an Equity Compensation Agreement, dated September 1, 2017 (the “Dusseux Equity Compensation Agreement”), pursuant
to which the Company is required to grant Dr. Dusseux a stock option representing a right to acquire 6% of the aggregate amount
of the Company’s outstanding common stock and exchangeable shares as of the date of grant, which grant is required to be
made as soon as practicable following September 1, 2017. The exercise price of the option is $24.15, and the expiration date will
be the tenth anniversary of the date of grant. One-sixth of the option will be vested and exercisable as of its date of grant,
and the unvested portion of the option will become vested and exercisable as follows:
|
·
|
50% in 5 equal annual installments on each of the five anniversaries of the date of the issuance of the option; and
|
|
·
|
50% in 5 equal separate tranches annually based on Dr. Dusseux’s achievement of annual performance goals to be established by the Board in consultation with Dr. Dusseux. The extent to which each separate tranche becomes vested shall be determined by reference to Dr. Dusseux’s annual performance as measured by reference to the performance targets set for that performance period. In the event a specific tranche is not fully vested, that tranche shall not be forfeited, but shall remain outstanding, and may become vested as a result of Dr. Dusseux’s future performance at an above target level or as a result of accelerated vesting on the occurrence of any other event that triggers accelerated vesting.
|
|
·
|
The most recent performance goals met by Dr. Dusseux are as follows:
|
|
·
|
Work with investors to ensure conversion of convertible loans and raise an additional minimum $7 million from July 2017;
|
|
·
|
Establish a plan to uplist to a U.S. stock exchange and associated IR plan;
|
|
·
|
Release new version of InMotion Arm before end of 2017;
|
|
·
|
Secure production capacity and quality by outsourcing production of InMotion arm to an established partner before March 2018; and
|
|
·
|
Engage Curexo into an exclusive distribution agreement before June 2018.
|
The option, including
any portion that is subject to vesting based on the period of Dr. Dusseux’s service and any portion that is subject to vesting
on the basis of performance, shall be fully vested on the occurrence of any of the following conditions: (a) A Change of Control
(as defined in the Company’s 2014 Equity Incentive Plan) or (b) Termination of Dr. Dusseux’s employment that constitutes
a “separation from service” (as the phrase is used for purpose of Section 409A of the Internal Revenue Code of 1986,
as amended), other than where such termination is for Cause (as defined in the Company’s 2014 Equity Incentive Plan) or if
Dr. Dusseux resigns other than for Good Reason (as defined in the Company’s 2014 Equity Incentive Plan).
Dr. Dusseux is also
entitled to receive a target annual cash bonus of up to 50% of base salary.
Dr. Dusseux is entitled
to reimbursement of housing costs of up to $4,000 per month for 24 months and the costs of immigration and annual tax compliance
and an annual executive medical provided by Medcan or similar supplier over the time he is employed.
In the event that Dr.
Dusseux employment is terminated as a result of death, Dr. Dusseux’s estate would be entitled to receive the annual salary
and a portion of the annual bonus earned up to the date of death. In addition, all vested options as of the date of death would
continue in full force and effect, subject to their terms and conditions of the Equity Incentive Plan.
In the event that Dr.
Dusseux’s employment is terminated as a result of disability, Dr. Dusseux would be entitled to receive the annual salary,
benefits, a portion of the annual bonus earned up to the date of disability and expenses incurred up to the date of termination.
In addition, all vested options as of the date of death would continue in full force and effect, subject to their terms and conditions
of the Equity Incentive Plan
In the event that Dr.
Dusseux’s employment is terminated by the Company for cause Dr. Dusseux would be entitled to receive his annual salary, benefits
and expenses incurred up to the date of termination.
In the event that Dr.
Dusseux’s employment is terminated by the Company without cause he would be entitled to receive 12 months’ pay and
benefit coverage plus one month for each year of service. Payment of pro-rata bonus for the fiscal year up to the date of termination
will also be paid.
The agreement contains
customary non-competition and non-solicitation provisions pursuant to which Dr. Dusseux agrees not to compete and solicit with
the Company. Dr. Dusseux also agreed to customary terms regarding confidentiality and ownership of intellectual property.
Michal Prywata
Bionik Canada entered
into an employment agreement with Michal Prywata on July 7, 2014, pursuant to which he serves as our Chief Operating Officer on
an indefinite basis, subject to the termination provisions described in the agreement. Pursuant to the terms of the agreement,
Mr. Prywata has received an annual base salary of $210,000 since February 26, 2015. The salary is reviewed on an annual basis to
determine potential increases based on Mr. Prywata’s performance and that of the Company. On June 29, 2017, the Company changed
his title to Chief Technology Officer.
Mr. Prywata is also
entitled to receive a target annual cash bonus of up to 30% of base salary. Mr. Prywata is further entitled to a cash and option
bonus based on a per patent creation basis, as determined by the Board.
In the event Mr. Prywata’s
employment is terminated as a result of death, Mr. Prywata’s estate would be entitled to receive the annual salary and a
portion of the annual bonus earned up to the date of death. In addition, all vested options and warrants as of the date of death
would continue in full force and effect, subject to their terms and conditions.
In the event Mr. Prywata’s
employment is terminated as a result of disability, Mr. Prywata would be entitled to receive the annual salary, benefits, a portion
of the annual bonus earned up to the date of disability and expenses incurred up to the date of termination.
In the event Mr. Prywata’s
employment is terminated by the Company for cause, Mr. Prywata would be entitled to receive his annual salary, benefits and expenses
incurred up to the date of termination.
In the event Mr. Prywata’s
employment is terminated by the Company without cause, he would be entitled to receive 12 months’ pay and full benefits,
plus one month for each year of service. Furthermore, Mr. Prywata will have six months after termination to exercise all vested
options in accordance with the terms of the 2014 Incentive Plan. All unvested options would immediately forfeit upon such notice
of termination.
The agreement contains
customary non-competition and non-solicitation provisions pursuant to which Mr. Prywata agrees not to compete and solicit with
the Company. Mr. Prywata also agreed to customary terms regarding confidentiality and ownership of intellectual property.
Leslie Markow
Bionik Canada entered
into an employment agreement with Leslie Markow on September 3, 2014, pursuant to which she serves as our Chief Financial Officer
on a part-time, indefinite basis, subject to the termination provisions described in the agreement. On September 16, 2015, Ms.
Markow was promoted to full time. Pursuant to the terms of the agreement, as amended, Ms. Markow receives an annual base salary
of $210,000 per annum. The salary is reviewed on an annual basis to determine potential increases based on
Ms. Markow’s performance and that of the Company. Ms. Markow is also entitled to receive a target annual cash bonus of up
to 30% of base salary, and a grant of options in an amount to be determined at the price of the Company’s going public transaction,
upon the closing of the Company’s going public transaction, to vest over three years in equal annual installments.
In the event Ms. Markow’s
employment is terminated as a result of death, Ms. Markow’s estate would be entitled to receive the annual salary and a portion
of the annual bonus earned up to the date of death. In addition, all vested options and warrants as of the date of death would
continue in full force and effect, subject to the terms and conditions of the plan.
In the event Ms. Markow’s
employment is terminated as a result of disability, Ms. Markow would be entitled to receive the annual salary, benefits, a portion
of the annual bonus earned up to the date of disability and expenses incurred up to the date of termination.
In the event Ms. Markow’s
employment is terminated by the Company for cause, Ms. Markow would be entitled to receive her annual salary, benefits and expenses
incurred up to the date of termination.
In the event Ms. Markow’s
employment is terminated by us without cause, she would be entitled to receive six months but no more than nine months’ pay
and full benefits. Furthermore Ms. Markow will have six months after termination to exercise all vested options in accordance with
the terms of the plan. All unvested options would immediately forfeit upon such notice of termination.
The agreement contains
customary non-competition and non-solicitation provisions pursuant to which Ms. Markow agrees not to compete and solicit with the
Company. Ms. Markow also agreed to customary terms regarding confidentiality and ownership of intellectual property.
Renaud Maloberti
The Company entered
into an Employment Agreement with Mr. Maloberti, effective as of June 11, 2018, his first day of employment (the “Maloberti
Employment Agreement”).
Mr. Maloberti shall
be employed by the Company until terminated pursuant to the termination provisions described in the Maloberti Employment Agreement.
Pursuant to the terms of the Maloberti Employment Agreement, Mr. Maloberti shall receive an annual base salary of $295,000 per
annum. The annual base salary shall be reviewed on an annual basis. Mr. Maloberti may be entitled to receive an annual bonus of
up to 40% of annualized actual base salary, based on performance in the previous fiscal year. He is also entitled to participate
in the Company’s equity incentive plan, and shall be granted options to purchase an aggregate of 5,000 shares of the Company’s
common stock, at an exercise price per share equal to the fair market value of the Company’s common stock on June 11, 2018,
the date of grant, and which shall vest equally over a 3 year period commencing one year from the date of grant and in the two
subsequent years on the anniversary of the grant date.
In the event Mr. Maloberti’s
employment is terminated as a result of death, Mr. Maloberti’s estate would be entitled to receive any earned base salary
and accrued vacation earned up to the date of death.
In the event Mr. Maloberti’s
employment is terminated as a result of disability (as defined in the Maloberti Employment Agreement), Mr. Maloberti would be entitled
to receive the annual salary, accrued vacation, and benefits through the date of termination.
In the event Mr. Maloberti’s
employment is terminated by the Company for cause, as defined in the Maloberti Employment Agreement, Mr. Maloberti would be entitled
to receive his unpaid base salary earned up to the date of termination.
In the event Mr. Maloberti’s
employment is terminated by the Company without cause, he would be entitled to receive 6 months’ salary and benefits, plus
accrued vacation.
Mr. Maloberti may terminate
the Maloberti Employment Agreement and his employment at any time, for any reason, provided that he provides the Company with 30
days’ prior written notice. In case of “good reason (as defined in the Maloberti Employment Agreement), the Company
shall pay to Mr. Maloberti: (i) 6 months’ salary and benefits; (ii) accrued vacation time if any; provided that the Company
shall not be required to pay the 6 months’ salary and benefits in the event the Company elects to enforce the non-competition
provisions of the Maloberti Employment Agreement and pays to Mr. Maloberti as a result of such enforcement, no less than that amount
in base salary.
The Maloberti Employment
Agreement contains customary non-competition, non-solicitation and non-disparagement provisions in favor of the Company. Mr. Maloberti
also agreed to customary terms regarding confidentiality and ownership of intellectual property.
Outstanding Equity Awards at Fiscal
Year-End
The following table
presents the outstanding equity awards held by each of the named executive officers as of the end of the fiscal year ended March
31, 2018, as adjusted to reflect the Company’s one-for-one hundred fifty reverse stock split.
Name
|
|
Number of Securities
Underlying
Unexercised
Options Exercisable
|
|
Number of Securities
Underlying
Unexercised
Options Unexercisable
|
|
Option
Exercise
Price
|
|
Option Expiration Date
|
|
|
|
|
|
|
|
|
|
|
|
|
Eric Dusseux
|
|
|
6,787
|
(1)
|
|
|
33,932
|
(1)
|
|
$
|
24.00
|
|
|
September 1, 2027
|
|
|
|
|
|
|
|
3,334
|
(2)
|
|
$
|
23.25
|
|
|
January 24, 2025
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Peter Bloch
|
|
|
6,606
|
(3)(4)
|
|
|
–
|
|
|
$
|
34.50
|
|
|
September 1, 2020
|
|
|
|
6,667
|
(5)
|
|
|
–
|
|
|
$
|
150.00
|
|
|
September 1, 2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michal Prywata
|
|
|
6,606
|
(3)
|
|
|
–
|
|
|
$
|
34.50
|
|
|
July 1, 2021
|
|
|
|
1,778
|
(5)
|
|
|
–
|
|
|
$
|
150.00
|
|
|
December 14, 2022
|
|
|
|
–
|
|
|
|
889
|
(5)
|
|
$
|
150.00
|
|
|
December 14, 2022
|
|
|
|
–
|
|
|
|
3,334
|
(2)
|
|
$
|
23.25
|
|
|
January 24, 2025
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leslie Markow
|
|
|
944
|
(6)
|
|
|
–
|
|
|
$
|
34.50
|
|
|
February 16, 2022
|
|
|
|
1,778
|
(7)
|
|
|
–
|
|
|
$
|
183.00
|
|
|
November 24, 2022
|
|
|
|
–
|
|
|
|
889
|
(7)
|
|
$
|
183.00
|
|
|
November 24, 2022
|
|
|
|
–
|
|
|
|
2,000
|
(2)
|
|
$
|
23.25
|
|
|
January 24, 2025
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Timothy McCarthy
|
|
|
1,667
|
(8)
|
|
|
–
|
|
|
$
|
150.00
|
|
|
October 27, 2018
|
|
|
|
–
|
|
|
|
3,334
|
(8)
|
|
$
|
150.00
|
|
|
April 27, 2018
|
|
|
|
–
|
|
|
|
13,334
|
(9)
|
|
$
|
31.50
|
|
|
April 27, 2018
|
|
|
|
–
|
|
|
|
667
|
(2)
|
|
$
|
23.25
|
|
|
April 27, 2018
|
|
(1)
|
On September 1, 2017, we issued 40,718 options to Mr. Dusseux at an exercise price of $24.15, 6,787 options have vested and 50% of the remaining options vest on performance being met and 50% vest annually over 5 years.
|
|
(2)
|
On January 24, 2018, the Company granted 3,334 options to Mr. Dusseux, 3,334 options to Mr. Prywata, 2,000 options to Ms. Markow and 667 options to Mr. McCarthy at $23.25 that vest equally on January 24, 2019, 2020 and 2021. As Mr. McCarthy left April 27, 2018, his options expired immediately on that date.
|
|
(3)
|
On July 1, 2014, Bionik Canada issued an aggregate of 13,212 options equally split between Messrs. Bloch and Prywata at an exercise price of $34.50 with a term of 7 years, which vested May 27, 2015. All of such options were issued subject to and contingent on the successful consummation of the Offering and the going public transaction, which took place on February 26, 2015. Accordingly, such options are deemed issued as of February 26, 2015.
|
|
(4)
|
Pursuant to Mr. Bloch’s Separation Agreement dated September 1, 2017, all of such options vested and expire two years from the date Mr. Bloch left the Company as a consultant or an employee.
|
|
(5)
|
On December 14, 2015, we issued 6,667 options to Mr. Bloch and 2,667 options to Mr. Prywata at an exercise price of $150.00 that vest equally over three years on the anniversary date starting December 14, 2016. On September 1, 2017, all of Mr. Bloch’s stock options automatically vested pursuant to the terms of his Separation Agreement and expire September 1, 2020.
|
|
(6)
|
On February 17, 2015, we issued 944 options to Ms. Markow at an exercise price of $34.50, that vested one-third immediately and two-thirds over the next two anniversary dates with an expiry date of seven years.
|
|
(7)
|
On November 24, 2015, we issued 2,667 options to Ms. Markow at an exercise price of $183.00 that vest equally over three years on the anniversary date starting November 24, 2016.
|
|
(8)
|
In August 8, 2016, we issued 5,000 options to Mr. McCarthy at an exercise price of $150.00, that vest equally over three years on the anniversary date of August 8, 2016. Mr. McCarthy left the Company in April 2018, 3,334 options have expired as of his resignation date and 1,667 will expire 6 months after his resignation date.
|
|
(9)
|
On August 3, 2017, the Company issued 10,000 options at $31.50 to Mr. McCarthy, which vest equally over three future years. In addition, he was also granted up to 3,334 additional performance options based on meeting sales targets for the years ending March 31, 2018 and 2019. Mr. McCarthy left the Company in April 2018 and all 13,334 options have expired as of his resignation date.
|
On February 25, 2015,
1,753 post-Acquisition Transaction common shares were issued to two former lenders connected with a $241,185 loan received and
repaid in fiscal 2013. As part of the consideration for the initial loan, Mr. Prywata and Mr. Caires, a former executive of the
Company, collectively transferred 2,098 common shares to the lenders. For contributing the common shares to the lenders, the Company
intends to reimburse them 2,134 common shares; however these shares have not yet been issued.
Long-Term Incentive Plans and Awards
Since our incorporation
on January 8, 2010 through March 31, 2018 we did not have any long-term incentive plans that provided compensation intended to
serve as incentive for performance. No individual grants or agreements regarding future payouts under non-stock price-based plans
have been made to any executive officer or any director or any employee or consultant since our inception through March 31, 2018.
Securities Authorized for Issuance Under Equity Compensation
Plans
We adopted, and a majority
of our stockholders approved, the 2014 Equity Incentive Plan (the “2014 Plan”). Under such plan, we may grant equity
based incentive awards, including options, restricted stock, and other stock-based awards, to any directors, employees, advisers,
and consultants that provide services to us or any of our subsidiaries on terms and conditions that are from time to time determined
by us. An aggregate of up to 15% of our common stock and common stock reserved for issuance from the Exchangeable Shares are reserved
for issuance under the 2014 Plan, and options for the purchase of 170,675 shares of our common stock have been granted and are
outstanding as of March 31, 2018. The purpose of the 2014 Plan is to provide financial incentives for selected directors, employees,
advisers, and consultants of the Company and/or its subsidiaries, thereby promoting the long-term growth and financial success
of the Company.
The table below sets
forth information as of March 31, 2018 with respect to compensation plans under which our common stock or Exchangeable Shares are
authorized for issuance, as adjusted to reflect the Company’s one-for-one hundred fifty reverse stock split.
|
(a)
|
|
(b)
|
|
(c)
|
|
Number of securities
to be Issued upon
exercise of
outstanding options,
warrants and rights
|
|
Weighted-
average
exercise price of
outstanding
options,
warrants and
rights
|
|
Number of securities
remaining available for
future issuance under
equity compensation
plans (excluding
securities reflected in
column (a))
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity compensation plans approved by security holders
|
|
|
89,239
|
|
|
|
$
|
75.00
|
|
|
|
|
78,935
|
|
Equity compensation plans not approved by security holders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive Stock Options
|
|
|
81,436
|
|
|
|
$
|
24.15
|
|
|
|
|
-
|
|
Total
|
|
|
170,675
|
|
|
|
|
|
|
|
|
|
78,935
|
|
Director Compensation
The following table sets forth a summary
of the compensation we paid to our non-employee directors during the fiscal year ended March 31, 2018.
Name
|
|
Fees Earned
or Paid in
Cash
|
|
|
Stock
Awards
|
|
|
Option
Awards
|
|
|
Non-Equity
Incentive Plan
Compensation
|
|
|
Nonqualified
Deferred
Compensation
Earnings
|
|
|
All Other
Compensation
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andre Auberton-Herve
|
|
$
|
225,000
|
|
|
|
-
|
|
|
$
|
916,152
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
1,141,152
|
|
Marc Mathieu
1
|
|
$
|
22,500
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
22,500
|
|
Remi Gaston- Dreyfus
|
|
$
|
14,167
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
14,167
|
|
P. Gerald Malone
|
|
$
|
1,747
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
1,747
|
|
Joseph Martin
|
|
$
|
1,747
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
1,747
|
|
|
(1)
|
Mr. Mathieu resigned from
the Board on August 1, 2018.
|
Other than Mr. Auberton-Herve’s
annual fee as Chairman of $180,000, our non-employee directors are entitled to receive an annual cash payment of up to $20,000
(until February 2018) and thereafter $50,000 per annum, as well as reimbursement for expenses incurred by them in connection with
attending Board meetings. The Company has accrued for these fees but has not paid any amounts other then $210,000 to Mr. Auberton-Herve
during the year ended March 31, 2018, part of which related to consulting fees prior to him becoming Chairman. Our directors also
are eligible for stock option grants. Mr. Matine and Dr. Thevenon were appointed to the Board subsequent to March 31, 2018.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Procedures and Policies
We consider “related
party transactions” to be transactions between our Company and (i) a director, officer, director nominee or beneficial owner
of greater than five percent of our stock; (ii) the spouse, parents, children, siblings or in-laws of any person named in (i);
or (iii) an entity in which one of our directors or officers is also a director or officer or has a material financial interest.
Our Board is vested
with the responsibility of evaluating and approving any potential related party transaction, unless a special committee consisting
solely of independent directors is appointed by the Board. We do not have any formal policies or procedures for related party transactions.
Transactions with Related Parties
Since January 1, 2016
through July, 2018, entities controlled by Mr. Gaston-Dreyfus have made the following loans to the Company:
|
·
|
Effective as of December 23, 2016, the Company entered into a Subscription Agreement dated as of December 20, 2016, with existing investors of the Company, including entities controlled by Mr. Gaston-Dreyfus, for the issuance of convertible notes. The Company borrowed an aggregate of $550,000 in this financing from entities controlled by Mr. Dreyfus. Mr. Dreyfus also received warrants as part of this financing.
|
|
·
|
On March 28, 2016, the Company borrowed an aggregate of $500,000 from entities controlled by Mr. Gaston-Dreyfus. Mr. Gaston-Dreyfus also received warrants as part of this financing.
|
|
·
|
Between August through December 2017, entities controlled by Mr. Gaston-Dreyfus loaned the company an aggregate of $2,580,000 evidenced by convertible promissory notes. Mr. Dreyfus also received warrants as part of this financing.
|
|
·
|
On December 19, 2017, an entity controlled by Mr. Gaston-Dreyfus loaned the Company $400,000 evidenced by a promissory note which was paid back January 4, 2018.
|
|
·
|
From January 2018 through March 31, 2018, the Company borrowed an aggregate of $1,250,000 from an entity controlled by Mr. Gaston-Dreyfus, evidenced by convertible promissory notes.
|
All convertible loans
were exchanged for common shares on March 31, 2018 and Mr. Gaston-Dreyfus and his affiliates received an aggregate of 608,028 shares
of common stock. As part of such transaction, 61,465 warrants were issued to affiliates of Mr. Gaston-Dreyfus.
|
·
|
From April 2018 through June 25, 2018, the Company borrowed an aggregate of $1,991,673 from an entity controlled by Mr. Gaston-Dreyfus, evidenced by convertible promissory notes. Effective as of July 20, 2018, such convertible notes converted in accordance with their terms into 289,791 shares of common stock.
|
|
|
|
|
·
|
On January 22, 2019, the Company borrowed an aggregate of $750,000 from an affiliate of Mr. Gaston-Dreyfus evidenced by a convertible promissory note, and such note is convertible into equity of the Company pursuant to the terms of such notes.
|
In December 2015, Mr.
Gaston-Dreyfus received 250,000 options for certain consulting services rendered to the Company.
Since December 2016,
the Company borrowed an aggregate of $700,000 from an entity controlled by Mr. Andre Auberton–Herve, evidenced by convertible
promissory notes. All such convertible loans were exchanged for common shares on March 31, 2018 and affiliates of Mr. Auberton–Herve
received an aggregate of 98,392 common shares. As part of such transaction, 1,600,640 warrants were issued to affiliates of Mr.
Auberton–Herve.
In June 2018, the Company
borrowed an aggregate of $306,255 from an entity controlled by Mr. Andre Auberton–Herve, evidenced by a convertible promissory
note. Effective as of July 20, 2018, such convertible note converted in accordance with its terms into 44,590 shares of common
stock. On October 10, 2018, the Company borrowed an aggregate of $300,000 from an affiliate of Mr. Andre Auberton-Herve evidenced
by a convertible promissory note, and such note is convertible into equity of the Company pursuant to the terms of such notes.
As of September 30,
2018, we had aggregate advances repayable by Mr. Prywata of $18,913. The loan to Mr. Prywata bears interest at a prescribed rate
of 1% until March 31, 2018 and 2% thereafter and is repayable on demand in Canadian dollars.
At March 31, 2018,
there was $208,567 owing to Eric Dusseux, $135,039 owing to Michal Prywata and $116,624 owing to Leslie Markow and $600 to Tim
McCarthy for sums paid by them on behalf of Bionik for business expense and bonus payments that were paid subsequent to March 31,
2018. In addition, at March 31, 2018 the Company owed $587,019 as severance to its former CEO Peter Bloch, which is being paid
over time ending February 2019.
In connection with
a CDN$250,000 loan obtained by Bionik Canada (which loan has been repaid), Bionik Canada agreed to transfer pre-transaction 83,574
common shares to the lenders. In addition, Messrs. Caires and Prywata also transferred 100,000 pre-transaction common shares to
the loan holder and this will be reimbursed by the issuance of 2,134 exchangeable shares to Messrs. Caires and Prywata. These shares
have not yet been issued.
Other
than the above transactions, there have been no related party transactions, or any other transactions or relationships required
to be disclosed pursuant to Item 404 Regulation S-K. The Company is currently not a subsidiary of any company.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table
shows the beneficial ownership of our Common Stock as of February 11, 2019 held by (i) each person known to us to be the beneficial
owner of more than five percent (5%) of our Common Stock; (ii) each director; (iii) each executive officer; and (iv) all directors
and executive officers as a group, as adjusted to reflect the Company’s one-for-one hundred fifty reverse stock split.
Beneficial ownership
is determined in accordance with the rules of the SEC, and generally includes voting power and/or investment power with respect
to the securities held. Shares of Common Stock subject to options and warrants currently exercisable or which may become exercisable
within 60 days of February 11, 2019 are deemed outstanding and beneficially owned by the person holding such options or warrants
for purposes of computing the number of shares and percentage beneficially owned by such person, but are not deemed outstanding
for purposes of computing the percentage beneficially owned by any other person. Except as indicated in the footnotes to this table,
the persons or entities named have sole voting and investment power with respect to all shares of our Common Stock shown as beneficially
owned by them.
The following table
provides for percentage ownership assuming 2,611,538 shares are issued outstanding as of February 11, 2019, consisting of 2,341,460
shares of Common Stock and 270,078 Common Stock equivalents through the Exchangeable Shares. The percentages below also assume
the exchange by all of the holders of Exchangeable Shares for an equal number of shares of our Common Stock in accordance with
the terms of the Exchangeable Shares. Unless otherwise indicated, the address of each beneficial holder of our Common Stock is
our corporate address.
Name
|
|
Shares of
Common
Stock
Beneficially
Owned
|
|
|
% of Shares
of
Common
Stock
Beneficially
Owned
|
|
|
|
|
|
|
|
|
Remi Gaston-Dreyfus (1)(2)
|
|
|
982,870
|
|
|
|
36.76
|
%
|
E.C.I SA (1)(3)
|
|
|
188,617
|
|
|
|
7.19
|
%
|
Solomar SA (1)(4)
|
|
|
153,211
|
|
|
|
5.84
|
%
|
Andre Auberton–Herve (5)
|
|
|
168,894
|
|
|
|
6.40
|
%
|
Eric Dusseux (6)
|
|
|
54,685
|
|
|
|
2.05
|
%
|
Michal Prywata(1)(7)
|
|
|
59,472
|
|
|
|
2.27
|
%
|
Leslie Markow (8)
|
|
|
3,389
|
|
|
|
*
|
|
P. Gerald Malone
|
|
|
-
|
|
|
|
-
|
|
Joseph Martin
|
|
|
-
|
|
|
|
-
|
|
Charles Matine
|
|
|
-
|
|
|
|
-
|
|
Audrey Thevenon
|
|
|
-
|
|
|
|
-
|
|
Renaud Maloberti
|
|
|
-
|
|
|
|
-
|
|
SFP Capital
|
|
|
169,350
|
|
|
|
6.49
|
%
|
All directors and executive officers as a group (10 persons)
|
|
|
1,269,310
|
|
|
|
45.86
|
%
|
* Less than 1%
(1)
|
Such shares include Exchangeable Shares originally issued for tax purposes. The Exchangeable Shares have the following attributes, among others:
|
|
·
|
Be, as nearly as practicable, the economic equivalent of the Common Stock as of the consummation of the Company’s going public transaction;
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·
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Have dividend entitlements and other attributes corresponding to the Common Stock;
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·
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Be exchangeable, at each holder’s option, for Common Stock; and
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·
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Upon the direction of our Board of Directors, be exchanged for Common Stock on the 10-year anniversary of the first closing of the Company’s 2015 offering, subject to applicable law, unless exchanged earlier upon the occurrence of certain events.
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The holders of the Exchangeable Shares, through The Special Voting Preferred Stock, will have
voting rights and other attributes corresponding to the Common Stock.
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(2)
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Includes options to acquire 1,112 shares of Common Stock, (ii) an aggregate of 22,473 Exchangeable Shares held through Lombard International Assurance SA and RGD Investissements and (iii) warrants to purchase an aggregate of 61,465 shares of Common Stock held through Lombard International Assurance SA and RGD Investissements. The address of RGD Investissements is 46 rue Pierre Charron, F-75008 Paris, France. The address of Lombard is 4 Rue Lou Hemmer, L-1748, Luxembourg.
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(3)
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Includes 9,321 Exchangeable Shares. Also includes warrants to purchase an aggregate of 11,524 shares of Common Stock. The address of E.C.I. SA is 125 rue Saint Martin, F-75004, Paris, France.
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(4)
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Includes 16,312 Exchangeable Shares. Also includes warrants to purchase an aggregate of 10,671 shares of Common Stock. The address of Solomar SA is Le Point du Jour, 44600, Saint Nazaire, France.
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(5)
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Includes (i) warrants to purchase 10,671 shares of Common Stock held through Star SCI, (ii) an aggregate of 13,573 options to acquire Common Stock held through 4A Consulting and Engineering, and (iii) 1,667 options to acquire Common Stock held through 4A Consulting and Engineering that are exercisable within 60 days of the date hereof. The address of Star SCI and 4A Consulting and Engineering is 18 Chemin de la Vierge Noire, La Tronche, France 38700. Does not include any shares of common stock underlying outstanding convertible notes held by an affiliate of Mr. Auberton-Herve.
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(6)
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Represents options to acquire shares of our Common Stock that are currently exercisable or will be exercisable in the next 60 days. Does not include options to acquire shares of our Common Stock which have not yet vested.
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(7)
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Represents 49,976 Exchangeable Shares and options to acquire
9,496 shares of Common Stock that are currently exercisable or will be exercisable in the
next 60 days.
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(8)
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Represents options to acquire shares of our Common Stock that are currently exercisable or will be exercisable in the next 60 days.
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PROPOSAL FOR
APPROVAL OF EXECUTIVE COMPENSATION
(Proposal 2 on Proxy Card and Voting
Instruction Form)
The Dodd-Frank Wall
Street Reform and Consumer Protection Act of 2010, or the Dodd-Frank Act, enables our stockholders to vote to approve, on an advisory
(non-binding) basis, the compensation of our named executive officers as disclosed in this proxy statement in accordance with the
rules of the SEC and commonly referred to as “Say-on-Pay.” The Board has decided that it is a matter of good corporate
governance to hold the advisory vote on compensation once every three years until the next advisory vote on frequency occurs. An
advisory vote on the frequency of stockholder votes to approve executive compensation is required to be held at least once every
six years. Accordingly, unless the Board modifies its policy on the frequency of future votes, we expect to have our next advisory
vote on compensation at our 2021 meeting.
As described more fully
under the heading “
Compensation of Directors and Executive Officers
” in this proxy statement, our executive
compensation programs are designed to attract, motivate and retain our named executive officers who are critical to our success.
The programs are designed to align the interest of our named executive officers with our stockholders and to fairly reward them
for creating stockholder value and achieving our business objectives. We believe that the various elements of our executive compensation
program work together to promote our goal of ensuring that total compensation should be related to our company performance and
individual performance.
Stockholders are urged
to read the section of this proxy statement entitled “
Compensation of Directors and Executive Officers
”, which
discusses and discloses our executive compensation policies, including the Summary Compensation Table which includes tabular and
narrative information about the compensation of our named executive officers. This discussion includes information about the compensation
of our named executive officers and our executive compensation programs for the years ended March 31, 2018 and 2017. Our Board
believes that these programs are effective in implementing our compensation philosophy and in achieving our goals.
We are asking our stockholders
to indicate their support for our executive compensation program as described in this proxy statement. This Say-on-Pay proposal
gives our stockholders the opportunity to express their views on our fiscal year ended March 31, 2018 executive compensation. The
vote is not intended to address any specific item of compensation, but rather the overall compensation of our named executive officers
and the philosophy, policies and procedures described in this proxy statement. Accordingly, we ask our stockholders, on an advisory
basis, to approve the following resolution:
RESOLVED
, that the stockholders
of Bionik Laboratories Corp. approve, on an advisory basis, the compensation of its named executive officers, as disclosed in the
proxy statement for the annual meeting of stockholders for the fiscal year ended March 31, 2019, pursuant to the compensation disclosure
rules of the SEC, including the Summary Compensation Table and any related narrative discussion.
The Say-on-Pay vote
is advisory, and therefore not binding on our Company or our Board. However, our Board values the opinion of our stockholders and
to the extent that there is any significant vote against the compensation of the named executive officers as disclosed in this
proxy statement, we will consider our stockholders’ concerns and our Board will evaluate whether any actions are necessary
to address those concerns.
Vote Necessary to Approve Proposal 2
The
affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at the Annual
Meeting and entitled to vote is required to approve our executive compensation program.
The Board of Directors
unanimously recommends a vote
FOR
the approval of our executive compensation program, as described in the
“Compensation of Directors and Executive Officers” section of this proxy statement and proxies received by the
Board of Directors will be so voted in the absence of instructions to the contrary.
PROPOSAL FOR
RATIFICATION OF AUDITORS
(Proposal 3 on Proxy Card and Voting
Instruction Form)
On February 6, 2019,
the Board approved the appointment of MNP LLP as the independent registered public accounting firm to conduct our financial audit
for the fiscal year ending March 31, 2019, and solicits the ratification of this appointment by the stockholders.
Neither MNP LLP, any
of its members nor any of its associates, to the best of our knowledge, has any financial interest in our business or affairs,
direct or indirect, or any relationship with us other than in connection with its duties as independent accountants. Representatives
of MNP LLP are expected to be present at the Annual Meeting, where such representatives will have the opportunity to make a statement
if they desire to do so and are expected to be able to respond to appropriate questions.
Vote Necessary to Ratify Proposal 3
The affirmative
vote of a majority of the voting power of the shares present in person or represented by proxy at the Annual
Meeting and entitled to vote is required for
the ratification of the appointment of the independent registered public accounting firm.
The Board of Directors
recommends a vote
FOR
the ratification of appointment of the independent registered public accounting firm as
described in this Proposal Number 3.
LEGAL PROCEEDINGS
From time to time,
we may become involved in various lawsuits and legal proceedings, which arise in the ordinary course of business. However, litigation
is subject to inherent uncertainties, and an adverse result in these or other matters may arise from time to time that may harm
business.
We are not currently
a party in any legal proceeding or governmental regulatory proceeding nor are we currently aware of any pending or potential legal
proceeding or governmental regulatory proceeding proposed to be initiated against us that would have a material adverse effect
on us or our business.
SECTION 16(a) BENEFICIAL OWNERSHIP
REPORTING COMPLIANCE
Section 16(a) of the
Securities Exchange Act requires the Company’s officers and directors, and persons who beneficially own more than ten (10%)
percent of a class of equity securities registered pursuant to Section 12 of the Exchange Act, to file reports of ownership and
changes in ownership with the Securities and Exchange Commission and the principal exchange upon which such securities are traded
or quoted. Reporting Persons are also required to furnish copies of such reports filed pursuant to Section 16(a) of the Exchange
Act with the Company.
Based on our review
of the copies of such forms received by us, and to the best of our knowledge, all executive officers, directors and greater than
10% stockholders filed the required reports in a timely manner in the fiscal year ended March 31, 2018, except for
Mr.
Auberton-Herve, who failed to timely file his Form 3
, Mr. Dusseux, who failed to timely file a Form 4 showing 1 transaction,
Mr. Martin, who failed to timely file his Form 3, and Mr. Malone, who failed to timely file his Form 3.
PROPOSALS OF STOCKHOLDERS FOR
PRESENTATION
AT THE NEXT ANNUAL MEETING OF STOCKHOLDERS
We anticipate that
the next annual meeting of stockholders will be held in November, 2019. Any stockholder who desires to submit a proper proposal
for inclusion in the proxy materials related to the next annual meeting of stockholders must do so in writing in accordance with
our Amended and Restated Bylaws and Rule 14a-8 of the Exchange Act, and it must be received at our principal executive offices
no later than July 18, 2019 in order to be considered for inclusion in the proxy statement for the 2019 annual meeting of stockholders.
For proposals sought to be included in our proxy statement, the proponent must be a record or beneficial owner entitled to vote
on such proposal at the next annual meeting and must continue to own such security entitling such right to vote through the date
on which the meeting is held.
In order for any proposal
that is not submitted for inclusion in next year’s proxy statement (as described in the preceding paragraph) to be presented
directly at next year’s annual meeting, we must receive written notice of the proposal in a timely manner. If such notice
is received, proxies may be voted at the discretion of management if we advise stockholders in next year’s proxy statement
about the nature of the matter and how management intends to vote on such matter.
WHERE YOU CAN FIND MORE INFORMATION ABOUT
US
As a reporting company,
we are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and accordingly file annual
reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statements and other information
with the SEC. The public may read and copy any materials filed with the SEC at their Public Reference Room at 100 F Street,
N.E., Washington, DC 20549. Please call the SEC at (800) SEC-0330 for further information on the Public Reference Room. As an electronic
filer, our public filings are maintained on the SEC’s Internet site that contains reports, proxy statements, and other information
regarding issuers that file electronically with the SEC. The address of that website is http://www.sec.gov.
Our common stock is quoted on the OTCQB
market under the symbol “BNKL.”
“HOUSEHOLDING” OF PROXY MATERIALS
When multiple stockholders
have the same address, the SEC permits companies and intermediaries, such as brokers, to deliver a single copy of certain proxy
materials and the Notice of Internet Availability of Proxy Materials (the “Notice”) to them. This process is commonly
referred to as “householding.” The Company does not participate in householding, but some brokers may for stockholders
who do not take electronic delivery of proxy materials. If your shares are held in a brokerage account and you have received notice
from your broker that it will send one copy of the Notice or proxy materials to your address, householding will continue until
you are notified otherwise or instruct your broker otherwise. If, at any time, you would prefer to receive a separate copy of the
Notice or proxy materials, or if you share an address with another stockholder and receive multiple copies but would prefer to
receive a single copy, please notify your broker. The Company promptly will deliver to a stockholder who received one copy of the
Notice or proxy materials as a result of householding a separate copy upon the stockholder’s written or oral request directed
to Bionik Laboratories Corp., 483 Bay Street, N105, Toronto, Ontario Canada M5G 2C9; Telephone: (416) 640-7887 x108; Email: lmarkow@bioniklabs.com.
ANNUAL REPORT ON FORM 10-K
A copy of our Annual
Report to the SEC on Form 10-K for the fiscal year ended March 31, 2018, including financial statements, is being mailed to
stockholders together with this proxy statement. No part of such Annual Report shall be regarded as proxy-soliciting material or
as a communication by means of which any solicitation is being or is to be made. Additional copies are available to stockholders
without charge upon written request to Leslie Markow, Chief Financial Officer, at 483 Bay Street, N105, Toronto, Ontario Canada
M5G 2C9.
OTHER MATTERS
The Board knows of
no other business to be presented at the Annual Meeting of stockholders. If other matters properly come before the meeting, the
persons named in the accompanying form of proxy intend to vote on such other matters in accordance with their best judgment.
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By Order of the Board of Directors
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/
s
/ Eric Dusseux
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DATE: February 11, 2019
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Chief Executive Officer and Director
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NOTICE TO HOLDERS OF EXCHANGEABLE SHARES
Annual Meeting of Stockholders of Bionik
Laboratories Corp. to be held on March 18, 2019
Our records show that
you hold Exchangeable Shares of Bionik Laboratories Inc., a Canadian company and an indirect subsidiary of Bionik Laboratories
Corp. The Exchangeable Shares provide you with economic and voting rights that are, as nearly as practicable, equivalent to those
of holders of shares of common stock of Bionik Laboratories Corp., including the right to attend and vote at meetings of the common
stockholders of Bionik Laboratories Corp. Bionik Laboratories Corp. will be holding an annual meeting (the “Annual Meeting”)
of its common stockholders on March 18, 2019:
(1) To
elect eight directors to serve until the next annual meeting of stockholders and until their successors are elected and qualified;
(2) To
consider and vote on an advisory (non-binding) resolution to approve the compensation of our named executive officers.
(3) To
ratify the appointment of MNP LLP as independent registered public accounting firm for the fiscal year ending March 31, 2019; and
(4) To
transact such other business as may properly come before the Annual Meeting or any adjournment or postponement thereof.
At the Annual Meeting
you will have voting rights, based on the number of Exchangeable Shares you hold. You are permitted to instruct Computershare Trust
Company of Canada, the Trustee under a Voting and Exchange Trust Agreement as to how the Trustee is to vote your Exchangeable Shares
at the Annual Meeting. If you do not give voting instructions, the Trustee will not be entitled to exercise the voting rights attached
to your Exchangeable Shares. Alternatively, you may instruct the Trustee to give you or a person designated by you a proxy to exercise
personally the voting rights attached to your Exchangeable Shares. To instruct the Trustee as to how you wish to exercise your
voting rights, you must complete, sign, date and return the enclosed Voting Instruction Form to the Trustee by 5:00 p.m., Eastern
time, on March 17, 2019. The Trustee will not be obligated to act on any instructions received after that time.
You have the right
to revoke any instructions to the Trustee by giving written notice of revocation to the Trustee or by executing and delivering
to the Trustee a later-dated Voting Instruction Form. No notice of revocation or later-dated Voting Instruction Form, however,
will be effective unless received by the Trustee prior to 5:00 p.m., Eastern time, on March 17, 2019.
Whether or not you
plan to attend the Annual Meeting, please sign, date and return the Voting Instruction Form in the envelope provided in order to
ensure that your Exchangeable Shares will be represented at the Annual Meeting.
Only registered holders
of Exchangeable Shares are permitted to instruct the Trustee as to how to vote their Exchangeable Shares at the Annual Meeting
or to attend and vote at the Annual Meeting in person or by proxy as described above. You may be a beneficial owner of Exchangeable
Shares (a “Non-Registered Holder”) if your Exchangeable Shares are registered either:
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(i)
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in the name of an intermediary (an “Intermediary”) with whom you deal in respect of
the Exchangeable Shares, such as, among others, banks, trust companies, securities dealers or brokers and trustees or administrators
of trusts; or
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(ii)
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in the name of a clearing agency of which the Intermediary is a participant.
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Bionik Laboratories
Corp. has distributed copies of the Notice of Meeting, the Proxy Statement and this Notice to Exchangeable Shareholders (collectively,
the “meeting materials”) to Intermediaries who are required to forward these meeting materials to Non-Registered Holders
unless a Non-Registered Holder has waived the right to receive them. If you are a Non-Registered Holder who has not waived the
right to receive meeting materials you will be given either:
(i) a
voting instruction form, which has already been signed by the Intermediary (typically by a facsimile, stamped signature) which
specifies the number of Exchangeable Shares beneficially owned by you but which is otherwise uncompleted. This voting instruction
form need not be signed by you. In this case, if you wish to direct the voting of the Exchangeable Shares held by you or attend
and vote at the Annual Meeting (or have another person attend and vote on your behalf) you should properly complete the voting
instruction form and deposit it with the Trustee prior to 5:00 p.m., Eastern time, on March 17, 2019; or
(ii) a
voting instruction form, which must be completed and signed by you in accordance with the directions on the voting instruction
form.
The purpose of these
procedures is to permit you, as a Non-Registered Holder, to direct the voting of the Exchangeable Shares you beneficially own or
to attend and vote at the Annual Meeting, in person or by proxy. A Non-Registered Holder generally may revoke a voting instruction
form given to an Intermediary by providing written notice to the Intermediary in a reasonable time period prior to the Annual Meeting.
Non-Registered Holders should carefully follow the instructions of their Intermediaries and their service companies and contact
their Intermediaries promptly if they need assistance.
VOTING INSTRUCTION FORM
Annual Meeting of Stockholders of Bionik
Laboratories Corp. to be held on March 18, 2019
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1.
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We are sending you the enclosed proxy related materials that relate to the Annual Meeting of Stockholders
of Bionik Laboratories Corp. for the fiscal year ended March 31, 2019. You are receiving these materials because you are a holder,
or the intermediary identified above is a holder on your behalf, of Exchangeable Shares of Bionik Laboratories Inc., an indirect
subsidiary of Bionik Laboratories Corp., and you are entitled to vote the Exchangeable Shares at the meeting. In order to vote,
you must instruct Computershare Trust Company of Canada (the “Trustee”) to vote on your behalf by completing this Voting
Instruction Form (“VIF”) or attend the meeting in person.
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2.
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We are prohibited from voting these securities on any of the matters to be acted upon at the meeting
without your specific voting instructions. In order for these securities to be voted at the meeting, it will be necessary for us
to have your specific voting instructions. Please complete and return the information requested in this VIF to provide your voting
instruction to us promptly.
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3.
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If you wish to attend the meeting in person or appoint some other person or company, who need not
be a shareholder, to attend and act on your behalf at the meeting or any adjournment or postponement thereof, please insert your
name(s) or the name of your chosen appointee in the space provided (please see reverse). You may also appoint a designated agent
or representative of Bionik Laboratories Corp. to act on your behalf at the meeting.
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4.
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This VIF should be signed by you in the exact manner as your name appears on the VIF. If these
voting instructions are given on behalf of a body corporate set out the full legal name of the body corporate, the name and position
of the person giving voting instructions on behalf of the body corporate and the address for service of the body corporate.
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5.
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If this VIF is not dated, it will be deemed to bear the date on which it is mailed by the Trustee
to you.
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6.
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When properly signed and delivered, securities represented by this VIF will be voted as directed
by you; however, if such a direction is not made in respect of any matter, the exchangeable shares you hold, or that are held on
your behalf, will not be voted.
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7.
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This VIF confers discretionary authority on the appointee to vote as the appointee sees fit in
respect of amendments or variations to matters identified in the Notice of Meeting or other matters as may properly come before
the meeting or any adjournment or postponement thereof.
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8.
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Your voting instructions will be recorded on receipt of the VIF and a legal form of proxy will
be submitted on your behalf.
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9.
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By providing voting instructions as requested, you are acknowledging that you are the beneficial
owner of, and are entitled to instruct use with respect to the voting of, the Exchangeable Shares.
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10.
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If you have any questions regarding the enclosed documents, please contact the representative who
services your account.
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11.
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This VIF should be read in conjunction with the accompanying documentation provided by management
of Bionik Laboratories Corp.
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VIF’s submitted must be received
by 5:00 p.m. Toronto Time
On March 17, 2019
You must return this VIF by mail in the envelope provided to
you to the following address:
Computershare Trust Company of Canada
Attention: Lisa M. Kudo and Raji Sivalingam
11
th
Floor, 100 University Avenue
Toronto, Ontario M5J 2Y1
Voting by internet or telephone are not available, and unless
your VIF is received by the Trustee by the time and date stated above, the Exchangeable Shares you hold, or that are held on your
behalf, will not be voted.
Appointment of Proxyholder
I/We, being holder(s) of exchangeable shares (“Exchangeable Shares”) of Bionik Laboratories Corp. hereby appoint: Computershare Trust Company of Canada (the “Trustee”)
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OR
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If you wish to attend in person or appoint someone else to attend on your behalf, print your name or the name of your appointee in this space (see Note #3 on reverse).
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As my/our appointee to attend, act and
to vote in accordance with the following direction and on all other matters that may properly come before the Annual Meeting of
Stockholders of Bionik Laboratories Corp. to be held at 483 Bay Street, N105, Toronto, Ontario, Canada M5G 2C9 on March 18, 2019
at 10:00 a.m., Eastern Time, and at any adjournment or postponement thereof. Management and directors of Bionik Laboratories Corp.
are not currently aware of any other matters to be presented at the meeting.
Executed proxies
that contain no instructions will be voted
FOR
each of the individuals nominated to be a director,
FOR
the resolution
approving the compensation of our named executive officers,
FOR
the ratification of the appointment of MNP LLP as our independent
registered public accounting firm for the fiscal year ending March 31, 2019, and in accordance with the judgment of the persons
named as proxies in the form of proxy on such other business or matters which may properly come before the annual meeting.
Other than the matters set forth in the Notice of Annual Meeting accompanying this proxy statement, we know of no matters to be
brought before the Annual Meeting.
IMPORTANT NOTE
: IF NO DIRECTION
IS MADE, FOR, OR AGAINST, OR ABSTAIN, THE HOLDER’S EXCHANGEABLE SHARES WILL NOT BE VOTED.
¨
Please mark your votes as in this example using dark ink only.
1. The
election of the following nominees to the Company’s Board of Directors to serve until the 2019 Annual Meeting of Stockholders:
Eric Dusseux, Andre Auberton-Herve, Remi Gaston-Dreyfus, P. Gerald Malone, Joseph Martin, Charles Matine, Audrey Thevenon, and
Michal Prywata.
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¨
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WITHHOLD AUTHORITY
to vote for all nominees
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¨
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WITHHOLD AUTHORITY FOR:
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Eric Dusseux
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¨
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Andre Auberton-Herve
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¨
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Remi Gaston-Dreyfus
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¨
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P. Gerald Malone
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¨
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Joseph Martin
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¨
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Charles Matine
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¨
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Audrey Thevenon
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¨
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Michal Prywata
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¨
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INSTRUCTION: To withhold authority to
vote for any individual nominee(s), mark “WITHHOLD AUTHORITY” and check the box next to each nominee you wish to withhold
authority.
2. The
approval of an advisory (non-binding) resolution to approve the compensation of named executive officers a non-binding advisory
proposal approving a resolution supporting the compensation of named executive officers.
¨
FOR
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¨
AGAINST
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¨
ABSTAIN
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3. The
ratification of MNP, LLP as the Company’s independent public accountants for the fiscal year ending March 31, 2019.
¨
FOR
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¨
AGAINST
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¨
ABSTAIN
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Signature(s):
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Date:
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Authorized Signature(s) – This
section must be completed for your instructions to be executed
.
If you are voting on behalf of a corporation
or another individual you may be required to provide documentation evidencing your power to sign this VIF with signing capacity
stated.
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___/___/___
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BIONIK LABORATORIES CORP.
Annual Meeting of Stockholders
March 18, 2019
Important Notice Regarding the Availability
of Proxy Materials for the Annual Meeting of Stockholders
To Be Held on March 18, 2019
BIONIK LABORATORIES CORP.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned, revoking all prior proxies,
hereby appoints Eric Dusseux and Leslie Markow, and each of them, with full power of substitution, as proxy to represent and vote
all shares of Common Stock, par value $0.001 per share, of Bionik Laboratories Corp. (the “Company”), which the undersigned
will be entitled to vote if personally present at the Annual Meeting of the Stockholders of the Company for the fiscal year ended
March 31, 2019 to be held on March 18, 2019, at 10:00 a.m., Eastern time, or any adjournment or postponement thereof, at 483 Bay
Street, N105, Toronto, Ontario, Canada M5G 2C9, upon matters set forth in the Notice of Annual Meeting and Proxy Statement for
the Annual Meeting of Stockholders dated February 11, 2019, a copy of which has been received by the undersigned. Each share of
Common Stock is entitled to one vote. The proxies are further authorized to vote, in their discretion, upon such other business
as may properly come before the meeting.
When properly executed, this proxy will
be voted in the manner directed herein by the undersigned stockholder.
IF NO DIRECTION IS GIVEN, THIS PROXY WILL BE VOTED “FOR”
EACH OF THE INDIVIDUALS NOMINATED TO BE A DIRECTOR, “FOR” PROPOSALS 2 AND 3, AND IN ACCORDANCE WITH THE JUDGEMENT OF
THE PERSONS NAMED AS PROXIES IN THE FORM OF PROXY ON SUCH OTHER BUSINESS OR MATTERS WHICH MAY PROPERLY COME BEFORE THE ANNUAL MEETING.
Please
check here if you plan to attend the Annual Meeting of Stockholders on March 18, 2019 at 10:00 a.m. (ET).
¨
PLEASE INDICATE YOUR VOTE ON THE REVERSE
SIDE
(Continued and to be signed on Reverse
Side)
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