Notice Convening the Extraordinary General Meeting
October 22,
2021
Announcement no.
18
NOTICE CONVENING THE
EXTRAORDINARY GENERAL MEETING
With reference to company announcement no. 16, the Board of
Directors hereby convenes an Extraordinary General Meeting of
BioPorto A / S (the “Company”):
November 15,
2021, at
3.00 pm
(CET),
At the Company’s address
Tuborg Havnevej
15, st.,
DK-2900
Hellerup
(Parking
available in
nearby Waterfront Shopping
Center)
AGENDA AND COMPLETE
PROPOSALS:
1) ELECTION
OF A NEW MEMBER
TO THE BOARD OF DIRECTORS
With reference to company announcement no. 16,
the Board of Directors proposes election of Peter Mørch Eriksen as
new member of the Board of Directors. Assuming Peter Mørch Eriksen
is elected, Thomas Magnussen will resign from the Board of
Directors following the extraordinary general meeting, where the
Board of Directors also expects to appoint Christopher Lindop as
new chairman of the Board of Directors.
Further information about Peter Mørch
Eriksen:
Peter Mørch Eriksen (1960,
Denmark),
Peter Mørch Eriksen has served as CEO of
BioPorto since July 2013. He has spent more than 20 years in the
MedTech/life science industries, including CEO of Sense A/S and VP
of Medtronic. From these positions, Peter Mørch Eriksen brings
extensive experience in creating growth, restructuring and funding
in technology-intensive and complex companies. He is an experienced
leader with a record of business within the medical device
industry, and has broad experience selling and developing medical
devices for both small and large MedTech companies. Peter Mørch
Eriksen has an accounting background, supplemented with management
experience. Current directorships in other companies:
- Chairman of the Board of Directors
FluoGuide A/S
- Member of the Advisory Board at
Lund University Diabetes Centre
- Member of the Advisory Board at the
Medical Device and Diagnostics Advisory Committee of Cincinnati
Children’s Hospital Center in Cincinnati, Ohio (US)
- Director in PME Holding ApS
- Member of the Board of BioPorto
Diagnostics A/S, BioPorto Inc., BioPorto Diagnostic Inc. and
Veterinary Diagnostics A/S (will resign from these positions
following his election as board member of BioPorto A/S)
Due to his position as CEO of BioPorto A/S,
Peter Mørch Eriksen will be considered non-independent under the
criteria defined by the Danish Committee on Corporate
Governance.
2) PROPOSAL
TO RENEW AUTHORIZATION TO ISSUE
WARRANTS
Due to recent changes in key leadership
positions in the Company and the consequent issuance, exercise
and/or lapsing of warrants, the combined total of outstanding and
authorized warrants will in the near term be substantially reduced.
To secure the Company’s ability to continue to attract and retain
highly qualified employees and members of management, the Board of
Directors proposes that the authorization in articles 17a of the
Articles of Association be increased by 10,000,000 to 20,000,000
warrants, provided that the authorization remain subject to the
existing limitation that the aggregate number of outstanding
warrants shall not exceed the equivalent of 10% of the Company’s
share capital from time to time. The authorization will further
remain subject to other existing terms and conditions, including
the expiration date of 29 April 2023.
Article 17a of the Articles of Association will
consequently be deleted and replaced by the following:
“Until 29 April 2023, the board of directors is
authorized to issue warrants, on one or more occasions, entitling
the holder(s) to subscribe for up to nominally DKK 20.000.000 of
the share capital of the Company. In no event shall the aggregate
number of outstanding warrants issued by the Company allow for the
issuance of shares representing more than 10% of the Company’s
share capital from time to time. The new warrants may be issued to
employees and the executive management of the Company or its
subsidiaries and thus without pre-emptive rights for existing
shareholders.
Issued warrants, that lapse unused or are
returned to the Company, may be re-issued or re-used, subject
always to the above limitations and provided that the exercise
price shall equal the market price of the Company’s shares at the
time the warrants are re-issued or re-used. The board of directors
determines the detailed terms for warrants, including terms for the
exercise of warrants. Potential performance requirements for the
exercise of warrants (KPI’s) will be determined by the board of
directors at the time of grant. Performance requirements, including
the deadline for such requirements to be satisfied, can be amended
only with the unanimous approval of the board of directors.
The board of directors is authorized to decide
on the capital increases by cash payment pertaining to the
warrants. All new shares shall be negotiable securities, shall have
the same rights as the other shares and shall entitle the holder to
dividends and other rights in the Company from the time determined
by the board of directors when adopting the decision to increase
the share capital. The new shares shall be paid in full, registered
in the name of the holder and no restrictions shall apply to the
transferability of the new shares. The board of directors is
authorised to amend the Articles of Association as required
following exercise of this authorization.”
In case any warrants are issued after the
convening notice but prior to the general meeting, the proposed
authorization will be reduced accordingly.
The grant and subsequent issue of warrants is at
all times subject to the Company’s Remuneration Policy and the
terms and conditions set out in the Articles of Association, which
are available on the Company’s website, www.bioporto.com. A mark-up
of the Articles of Association is also attached as appendix 1 to
this notice.
3) AUTHORISATION
TO THE CHAIRMAN OF THE GENERAL MEETING
The Board of Directors proposes that the general meeting
authorizes the chairman of the general meeting, with a right of
substitution, to file the resolutions adopted with the Danish
Business Authority and to make such amendments as the Danish
Business Authority may require in order to register or approve the
resolutions adopted.
-O-
ADOPTION
REQUIREMENTS |
Adoption of agenda item 2 require the acceptance of at least 2/3 of
both the votes cast at the general meeting and of the share capital
represented at the general meeting. All other proposals may be
adopted by a simple majority. |
SHARE CAPITAL
AND VOTING |
At the time of convening, the share capital of the Company amounts
to DKK 267.754.404. The share capital is fully paid-up and divided
into shares of nominally DKK 1.00. Each share carries one vote
(corresponding to a total of 267.754.404 votes). |
SUBMISSION OF DOCUMENTS
AND QUESTIONS |
The convening notice, including the agenda, complete proposals,
information on voting rights and share capital on the convening
date, the form for proxy and voting by correspondence and the
amended Articles of Association are available on the Company’s
website, www.bioporto.com. Until and including the day before the
general meeting, shareholders may address questions regarding the
agenda or documents for the general meeting to the Company in
writing. |
RECORD
DATE |
The right of a shareholder to attend the general meeting and to
vote is determined relative to the shares held by the shareholder
on the record date. The record date is one week before the general
meeting. The shares held by each shareholder on the record date is
calculated based on registration of the shareholders' ownership in
the shareholders’ register and notifications about ownership
received by the Company for entry into the shareholders’ register,
but which have not yet been registered. The record date is November
8, 2021. |
ADMISSION CARD
|
Request for admission cards must
be no later than November
11, 2021 by one of the
following ways:
- Via the Company's shareholder portal, available on the
Company's website, www.bioporto.com under "Investor
Relations";
- By writing to the Company at investor@bioporto.com. The request
form can be located on www.bioporto.com under “Investor Relations”
and subsequently “Extraordinary General Meeting”.
Admission cards are only sent out electronically via email to
the email address provided in the shareholders’ portal upon
registration. Shareholders are therefore kindly requested to verify
that the correct e-mail address is specified in the shareholder
portal. The admission card must be presented at the general
meeting, either electronically on a smartphone / tablet or
printed. Shareholders who have ordered admission cards without
specifying their email address may collect the admission card at
the entrance of the general meeting upon presentation of
appropriate ID. Voting forms will be handed out at the
entrance of the general meeting. |
PROXY |
Shareholders may submit a proxy to the Board of Directors or to a
person designated by the shareholder participating in the general
meeting. The proxy must be received by the Company no
later than November 11,
2021 by one of the following ways:
- Via the Company's shareholder portal, available on the
Company's website, www.bioporto.com under "Investor
Relations".
- By writing to the Company at investor@bioporto.com. The proxy
can be located on www.bioporto.com under “Investor Relations” and
subsequently “Extraordinary General Meeting”.
Admission cards to shareholders’ advisers or administrators
must also be obtained within the deadline specified. |
VOTE BY
CORRESPONDENCE |
Shareholders may vote by correspondence prior to the general
meeting. Votes by correspondence must be received by the
Company no later than November
12, 2021 by one of the following ways:
- Via the Company's shareholder portal, available on the
Company's website, www.bioporto.com under "Investor
Relations".
- By writing to the Company at investor@bioporto.com. The form
for voting by correspondence can be found on www.bioporto.com under
“Investor Relations” and subsequently “Extraordinary General
Meeting”.
|
BIOPORTO
A/S |
Contact: Karen Stendal Telefon: + 45 29 00 00,
e-mail: investor@bioporto.com |
DATA PROTECTION
|
BioPorto A/S will as part of your
communication and interaction with you collect and process personal
data about you. You can read more about our privacy notice at
http://www.bioporto.com/Investor-Relations/Governance.aspx. |
APPENDIX 1
ARTICLES OF ASSOCIATION OF BIOPORTO
A/S
ARTICLES OF
ASSOCIATIONforBioPorto
A/S
Company reg. no.: 17 50 03
17
Company name and object
Article 1
The Company’s name is BioPorto A/S.
The object of the Company is to establish and
take part in industrial, commercial and/or leasing activities or
other business activities, including the purchase, sale and
operation of real estate and to operate an enterprise as a holding
company.
Capital and shares
Article 2
The share capital of the Company is nominally DKK
267,754,404.
The share capital has been paid in full and divided into shares
of nominally DKK 1.00 or multiples thereof.
No shareholder is obliged to have his shares redeemed in full or
in part.
The shares are freely negotiable.
Article 3
The Company’s shares are negotiable securities and shall be
registered in the name of the holder.
The right to dividend, that has not been withdrawn, becomes
statute-barred in accordance with applicable law.
Cancellation
Article 4
Lost shares, bearer scrips, subscription and
share certificates, coupons and talons may be cancelled without
obtaining judgment in accordance with applicable law in force from
time to time.
General meeting
Article 5
The general meeting is the Company’s highest
authority and is to be convened as determined by the board of
directors at a suitable location within Denmark.
The annual general meeting shall be
held each year in sufficient time
for the audited and approved annual report
to be received by the Danish Business Authority before the expiry
of the deadline stipulated in the Danish Financial Statements
Act.
Extraordinary general meetings shall be convened
by the board of directors:
- following a decision by the general
meeting;
- when this is deemed expedient by
the board of directors or an auditor; or
- following a request by shareholders
jointly holding one-twentieth (1/20) of the share capital.
A request of this nature shall be submitted in
writing to the board of directors and must be accompanied by a
written proposal.
An extraordinary general meeting must be
convened not later than fourteen (14) days after the request has
been submitted.
Article 6
General meetings shall be convened by the board
of directors by announcement on the Company’s website and by notice
to shareholders, who have so requested, giving at least three (3)
weeks’ and at most five (5) weeks’ notice.
The notice convening the general meeting shall
include the agenda of the general meeting and such other
information as the law prescribes.
For a period of three (3) weeks before each
general meeting and up to and including the day of the general
meeting a copy of the convening and the agenda, complete proposals,
documents presented at the meeting, information on voting and
capital structure at the time of the notice and forms for
submission of proxy and postal votes will be available from the
Company's website.
Shareholders are entitled to have particular
business transacted at the general meeting. Proposals for the
annual general meeting shall be submitted in writing to the board
of directors no later than six (6) weeks prior to the general
meeting. If the proposal is received after the deadline, the board
of directors decides whether the proposal is submitted in time for
the business to be included in the agenda.
Article 7
Each share amount of DKK 1.00 carries one (1)
vote.
The right of a shareholder to attend a general
meeting and to vote is determined relative to the shares held by
the shareholder at the record date. The record date is one (1) week
before the general meeting. The shares held by each shareholder and
voting rights at the record date are calculated on the basis of
registration of the shareholders' ownership in the register of
shareholders and notifications about ownership received by the
Company for entry into the register of shareholders.
Any shareholder entitled to attend the general
meeting as referred to above, and who wish to attend the general
meeting shall within three (3) days before the meeting notify the
Company of his/her attendance.
Shareholders may appear in person or by proxy,
and both the shareholder and the proxy holder can attend with an
advisor. Voting rights can be exercised by proxy. A proxy may be
revoked at any time. Revocation must be in writing and can be
effected by contacting the Company. Any shareholder
entitled to attend the general meeting as referred to above may
also vote by regular mail. Votes by regular mail must be made in
writing and be received by the Company no later than three (3) days
prior to the general meeting.
Article 8
The board of directors elects a chairman to
preside over the general meeting. The chairman shall decide on
matters relating to the business to be transacted.
The agenda of the annual general meeting shall
include:
- Report on the Company’s activities
during the preceding year.
- Presentation of the annual report
for adoption, including a resolution regarding the allocation of
profit or covering loss, and decision on discharge of the board of
directors and the management.
- Presentation of and advisory vote
on the Remuneration Report.
- Approval of remuneration for the
board of directors.
- Proposals from the board of
directors or shareholders, including proposals to authorise the
Company to repurchase own shares.
- Election of members of the board of
directors and any alternates.
- Election of auditor and any
alternates.
- Any other business.
Article 9
All business transacted at the general meeting
shall be determined by a simple majority of votes unless otherwise
provided for in legislation or these Articles of Association.
Communication
Article 10
All communication from the Company to the
shareholders in accordance with the Articles of Association, the
Danish Companies Act or legislation governing securities markets,
including the convening of general meetings, can be done
electronically by email, The Company may at any time choose to
communicate by regular mail as an alternative or in addition to
email. General notices are made available on the Company’s website
and in such other manner as may be prescribed by law. Communication
from shareholders to the Company can be done by email.
The Company must request from the registered
shareholders an email address to which notices, etc. can be sent.
It is the shareholder's responsibility to ensure that the Company
has the correct email address at all times.
Detailed information on the requirements for the
systems used and the procedures for electronic communications can
be found on the Company’s website.
The Company prepares and submits annual reports
and interim reports in English. Furthermore, the Company prepares
and publishes its company announcements in English.
Management and board of directors
Article 11
The board of directors shall consist of three
(3) to seven (7) members appointed by the general meeting and of
employee representatives in accordance with applicable law. The
general meeting may elect up to two (2) alternating directors.
The members of the board of directors shall be
elected for a period of one (1) year at a time. The employee
representatives shall be elected for a period of four (4) years at
a time.
The board of directors constitutes itself.
Article 12
The board of directors is responsible for the
overall management of the Company’s business.
The board of directors may appoint an executive
committee which attends to such tasks on behalf of the board of
directors as have been assigned to the committee by the board of
directors.
The board of directors shall appoint one or more
executive managers to be in charge of the day- to-day
operations.
Board members shall be remunerated with a fee
that is determined by the board of the directors and approved by
the general meeting.
Authorisation to bind the
Company
Article 13
The Company is bound by the signatures of a
majority of the board of directors, by the signatures of one (1)
executive manager and the chairman of the board of directors
jointly or by the signatures of two (2) executive managers.
Auditors
Article 14
Every year, the general meeting elects for one (1) year at a
time up to two (2) auditors, one (1) of whom shall be a state
authorised public accountant.
The fee to the auditor shall be approved by the board of
directors.
Financial statements
Article 15
The Company’s accounting year is the calendar year.
Capital increases, etc.
Article 16
Increase of the share capital
Article 16a
The board of directors is authorised until April
29, 2023, to increase the share capital of the Company on one or
more occasions, with pre-emptive subscription rights for existing
shareholders, by up to nominally DKK 100,000,000 in total.
Article 16b
The board of directors is authorised until April
29, 2023, to increase the Company’s share capital on one or more
occasions, without pre-emptive subscription rights for existing
shareholders, by up to nominally DKK 30,000,000 and further by an
additional DKK 70,000,000 for offerings where the new shares are
admitted to trading on a stock exchange, regulated market,
multilateral trading facility or similar other than Nasdaq
Copenhagen (whether as a separate listing or as a dual listing on
such exchange, etc. and Nasdaq Copenhagen), provided in each case
that any capital increase pursuant to this authorisation shall be
effected at market price.
Article 16c
A maximum of nominally DKK 120,000,000 shares
can be issued by exercise of the authorisations of the board of
directors pursuant to Articles 16a and 16b. For the capital
increases pursuant to Articles 16a and 16b, it also applies that
these increases may take place by means of cash payment, by debt
conversion or by the contribution of assets other than cash. The
new shares shall be negotiable securities, be registered in the
name of the holder and be paid in full. No restrictions shall apply
to the transferability of the new shares.
The board of directors is authorized to amend
the Articles of Association as required following exercise of this
authorization.
Article 17
Warrants
Article 17 a
Until 29 April 2023, the board of directors is
authorized to issue warrants, on one or more occasions, entitling
the holder(s) to subscribe for up to nominally DKK 20.000.0001 of
the share capital of the Company. In no event shall the aggregate
number of outstanding warrants issued by the Company allow for the
issuance of shares representing more than 10% of the Company’s
share capital from time to time. The new warrants may be issued to
employees and the executive management of the Company or its
subsidiaries and thus without pre-emptive rights for existing
shareholders.
Issued warrants, that lapse unused or are
returned to the Company, may be re-issued or re-used, subject
always to the above limitations and provided that the exercise
price shall equal the market price of the Company’s shares at the
time the warrants are re-issued or re-used. The board of directors
determines the detailed terms for warrants, including terms for the
exercise of warrants. Potential performance requirements for the
exercise of warrants (KPI’s) will be determined by the board of
directors at the time of grant. Performance requirements, including
the deadline for such requirements to be satisfied, can be amended
only with the unanimous approval of the board of directors.
The board of directors is authorized to decide on the capital
increases by cash payment pertaining to the warrants. All new
shares shall be negotiable securities, shall have the same rights
as the other shares and shall entitle the holder to dividends and
other rights in the Company from the time determined by the board
of directors when adopting the decision to increase the share
capital. The new shares shall be paid in full, registered in the
name of the holder and no restrictions shall apply to the
transferability of the new shares. The board of directors is
authorised to amend the Articles of Association as required
following exercise of this authorization.
Article 17 b
In accordance with authorisations previously approved by the
general meeting, the Company’s board of directors has by decisions
of April 8, 2016, April 3, 2017, June 15, 2018, August 20, 2018,
December 20, 2018, April 15, 2019, August 15, 2019, December 30,
2019, May 11, 2020 and February 10, 2021 issued warrants that
permit subscription of a total of 19,032,500 new shares for the
executive management and certain employees in the Company or its
subsidiaries. At the same time, the board of directors has passed a
resolution regarding the associated capital increases of a minimum
of nominally DKK 1.00 and maximum DKK 19,032,500. The terms and
conditions of the warrants and the associated capital increases are
specified in Appendix 1 and constitute an integrated part of these
Articles of Association.
As of 8 April 2021, a total of 1,172,500 of the abovementioned
warrants have been exercised, which has resulted in a total
increase of the Company’s share capital of nominally DKK
1,172,500.
---ooo0ooo---
Updated on the following dates: November 4,
2002; January 9, 2004; January 30, 2004; February 5, 2004; April 5,
2004; September 28, 2004; April 27, 2005; June 1, 2005; September
1, 2005; October 11, 2005; July 12, 2006; June 20, 2007, March 28,
2008; March 31, 2008; April 1, 2009; April 16, 2009; April 24 2009;
September 25, 2009 in accordance with the authority of the board of
directors from August 25, 2009, April 20, 2010 and September 9,
2010 in accordance with the authority of the board of directors
from August 26, 2010, April 7, 2011, April 8 in accordance with the
authority of the board of directors from March 31, 2008, April 8,
2011 in accordance with the authority of the board of directors
from August 26, 2010, September 14 2011 in accordance with the
authority of the board of directors from September 14 2011, at the
Company’s AGM of April 17, 2012, December 3, 2012 in accordance
with the authority of the board of directors from December 3, 2012,
on the Company’s AGM of April 16, 2013, on May 21, 2013 in
accordance with the decision of the annual general meeting on April
16, 2013, on September 12, 2013 in accordance with the authority of
the board of directors from August 16, 2013, on September 23, 2013
following redemption of convertible debt instruments, on the
Company’s AGM on April 10, 2014, April 10, 2015 in accordance with
the authority of the board of directors from April 10 2015; August
31, 2015 in accordance with the authority of the board of directors
from August 31 2015; April 8, 2016, on the Company’s AGM on April
14 2016, by decision of the board of directors on August 3, 2016,
by decision of the board of directors on November 11, 2016, by
decision of the board of directors on April 3, 2017, on the
Company’s AGM on April 21, 2017, by decision of the board of
directors on October 27, 2017, on the Company’s AGM on April 13,
2018 by decision of the board of directors on June 15, 2018, by
decision of the board of directors on August 20, 2018, by decision
of the board of directors on November 11, 2018, by decision of the
board of directors on December 20, 2018, on the Company’s AGM on
March 18, 2019, by decision of the board of directors on April 15,
2019, by decision of the board of directors on June 17, 2019, by
the decision of the board of directors on August 15, 2019, by the
decision of the board of directors on December 30, 2019, by the
decision of the board of directors on March 16, 2020, on the
Company’s AGM on April 14 2020, by the decision of the board of
directors on May 11, 2020, by the decision of the board of
directors on August 19, 2020, by the decision of the board of
directors on September 25, 2020, by decision of the board of
directors on 10 February 2021, by decision of the board of
directors on 8 April 2021, on the Company’s AGM on April 29, 2021
and on the Company’s EGM on November 15, 2021.
This is an unauthorised translation of the
Company’s Articles of Association from Danish to English. In the
event of any discrepancies, the Danish version of the Articles of
Association shall prevail.
Appendix 1
This Appendix 1 is prepared in accordance with
Articles 17a and 17b of the Articles of Association.
INCENTIVE WARRANTS – TERMS
AND CONDITIONS
1 BASIS FOR
ALLOTMENT OF
WARRANTS1.1 On
April 8, 2016 the board of directors of BioPorto A/S (the
“Company”) passed a resolution to establish this warrant program
(“Warrant Program”), according to which the board of directors may
allot warrants to certain members of management and employees in
the Company or its subsidiaries (the “Group”).
1.2 Warrants issued
under the Warrant Program are subject to the terms and conditions
set out in this appendix and the additional terms set out in the
warrant agreement that will be entered into with the individual
beneficiary upon allotment. Such beneficiary will in the following
be referred to as the “Beneficiary”.
1.3 Annex 1.3 contains
a list of warrants issued under the Warrant Program, including the
date of allotment, the subscription price, the exercise period and
any potential special terms.
2 Allotment of
warrants2.1 Warrants
are allotted at the discretion of the board of directors and are
allotted (subscribed for) by entering into a warrant agreement with
the individual Beneficiary.
2.2 Allotment is free
or against payment fixed by the board of directors.
2.3 Each warrant
carries the right to subscribe for one share in the Company on the
specific terms and conditions set out in this appendix.
2.4 Upon allocation of
warrants, the Company's board of directors decide that warrants
shall lapse if specified performance requirements are not met. Such
performance requirements and terms regarding annulment of warrants
are set out in appendix 1.3.
3 Exercise
price 3.1 The
exercise price is the price per share payable by the Beneficiary
upon exercising a warrant (the “Exercise Price”). The Exercise
Price is fixed by the board of directors upon allotment.
3.2 The Exercise Price
may in certain cases be adjusted as set out in clause 5 below.
4 Exercise4.1 Exercise
period
4.1.1 The exercise of
warrants can solely take place in the period fixed by the board of
directors upon allotment (the “Exercise Period”).
4.1.2 During the
Exercise Period, warrants may be exercised only within the ordinary
trade windows stipulated from time to time in the Company’s
internal rules governing the trading of the Company’s shares in
connection with the publication of the annual report or interim
reports.
4.1.3 Warrants that
have not been exercised on or before the last day in the Exercise
Period will lapse without notice and without compensation or other
consideration to the Beneficiary.
4.1.4 Regardless of the
provisions set out in clauses 4.1.1 – 4.1.3, warrants may be
exercised by extraordinary exercise of warrants as set out in
clause 5 below.
4.2 Procedure for
exercise of warrants
4.2.5 If the
Beneficiary wishes to exercise his or her warrants, the Beneficiary
must notify the Company hereof in writing. The notification must be
signed by the Beneficiary and must contain a statement including
the number of warrants, which the Beneficiary wishes to exercise
and information regarding the Beneficiary's VP deposit account.
4.2.6 The notification
must be received by the Company not later than at 12 noon (Danish
time) on the last day of the Exercise Period.
4.2.7 The Company will
subsequently instruct the Beneficiary of the practical arrangements
in respect of the exercise and will fix a time limit of at least
three (3) working days for the payment of the subscription price.
If the Beneficiary does not comply with the Company’s instructions,
the Company may deem the request for exercise as lapsed.
4.2.8 The new shares
will be issued as soon as practically possible, however, no later
than fifty (50) days after the Company received the request for
exercise.
4.2.9 Instead of
issuing shares to the Beneficiary, the Company may choose to settle
the balance between the Exercise Price and the official listing
price of the Company’s shares at Nasdaq Copenhagen on the date of
the Beneficiary’s exercise of the warrants, cf. clause 4.2.1. The
balance is paid in cash to an account designated by the Beneficiary
no later than fifty (50) days after the Company received the
request for exercise in compliance with clause 4.2.1.
4.2.10 The
Beneficiary’s exercise of warrants and the subsequent shareholding
is subject to the rules applicable from time to time for shares
admitted to trading in a regulated market, including the rules on
insider trading.
5 Extraordinary
exercise of warrants
5.1 Warrants may – outside
the periods set out in clause 4.1 – be exercised in the following
extraordinary situations:
(a) A third party’s submission of a
voluntary or mandatory take-over bid for the shares in the Company
pursuant to section 45 and 47 of the Danish Capital Markets Act (in
Danish: Lov om kapitalmarkeder);
(b) The general meeting’s resolution to
liquidate the Company;
(c) The general meeting’s resolution to
delist the Company;
(d) The Company’s sale of all its
activities or licensing of all material rights;
(e) Certain cases of merger or demerger
as set out in clause 6 and 7; and
(f) A third party’s compulsory redemption
of the shareholders in the Company.
Items (a) – (f) are in the following referred to as an “Exercise
Event”.
5.2 In case of an
Exercise Event, the Company must notify the Beneficiary in writing
of the possibility of extraordinary exercise of warrants. The
notification must to the widest extent possible be provided in
reasonable time within the completion of the Exercise Event. The
board of directors may decide that the exercise of warrants is
subject to or commences immediately prior to the completion of the
Exercise Event.
5.3 The notification
must state a time limit, which – if practically possible – must be
at least two (2) weeks, within which the Beneficiary must notify
the Company in writing as to whether the Beneficiary wishes to
exercise the warrants, fully or partially.
5.4 Warrants that are
not exercised within the stipulated time limit will lapse without
compensation or consideration for the Beneficiary, unless the board
of directors decide otherwise.
5.5 The provisions set
out in clause 4.2 shall apply correspondingly, including clause
4.2.5 concerning balance settlement, however, the balance will be
calculated on the basis of the value of the share upon the
completion of the Exercise Event.
6 Merger6.1 In
the event that the Company’s general meeting adopts a resolution to
merge with one or more companies, with the Company as the surviving
company, the warrants will remain unchanged.
6.2 In the event that
the Company’s general meeting adopts a resolution to merge with one
or more companies, with the Company as the non-surviving company,
the Company's board of directors is entitled (i) to pass a
resolution as to the merger constituting an Exercise Event, cf.
clause 5.1, in respect of some or all warrants, and/or (ii) to
establish a share-based program in the surviving company as
substitution for some or all of the warrants, provided that the
economic value for the Beneficiary of the new warrants and any
dividend received for existing warrants (except for any potential
tax) must to the widest extent possible correspond to the value of
the Beneficiary’s warrants under the applicable terms.
6.3 A contribution
in-kind of all the Company’s shares into another company against
shares in such company shall be considered a merger, with the
Company as the non-surviving company, and clause 6.2 shall apply
correspondingly.
7 Demerger7.1 In
the event that the Company’s general meeting adopts a resolution to
demerge the Company, regardless of whether the Company is
liquidated in connection with the demerger, the board of directors
of the Company is entitled (i) to pass a resolution as to the
demerger constituting an Exercise Event, cf. clause 5.1, in respect
of some or all warrants, and/or (ii) to carry through an adjustment
pursuant to clause 9 of some or all of the warrants, in respect of
the value that has been distributed to the shareholders and/or
(iii) establish a share-based program in the surviving
company/companies as substitution for some or all warrants,
provided that the economic value for the Beneficiary of any
continuing and/or new warrants and any dividend/any adjustment
received for existing warrants (except for any potential tax) to
the widest extent possible must correspond to the value of the
Beneficiary’s warrants under these terms and conditions.
8 Termination
of the Beneficiary’s employment with the
Company8.1 If the
Beneficiary is a Good Leaver (as defined below), the Beneficiary
will keep the warrants under unchanged terms and the right to
exercise the warrants on the terms and conditions applicable to the
warrants in question.
8.2 If the Beneficiary
is a Bad Leaver (as defined below), the Beneficiary’s warrants will
lapse without compensation and without notice upon termination of
the employment, unless the board of directors of the Company
specifically and no later than upon the termination of the
employment decides otherwise.
8.3 The Beneficiary is
considered a” Good Leaver”, if (i) the Company (or a subsidiary)
dismisses the Beneficiary from employment with the Company (or the
subsidiary) without just cause, or if the Beneficiary has been
summarily dismissed without justification, or (ii) the Beneficiary
gives notice of termination due to the Company’s (or the
subsidiary’s) fundamental breach of the employment. If a Good
Leaver becomes a Bad Leaver, the provisions in clause 8.2 will
apply.
8.4 The Beneficiary is
a” Bad Leaver” if (i) the Beneficiary gives notice of termination
not caused by the Company’s fundamental breach of the employment,
or (ii) the Company terminates the employment, summarily dismisses
the Beneficiary or otherwise terminates the employment, due to the
Beneficiary’s breach of the employment.
8.5 Upon the
Beneficiary’s death, the warrants will lapse without compensation
and without notice, unless the board of directors of the Company
decide that the estate can receive and exercise the warrants on the
terms and conditions applicable to the warrants in question, cf.
clause 10.1.
8.6 Upon age-related
retirement or upon termination of the employment due to permanent
disability, the Beneficiary will keep the warrants under unchanged
terms and will be able to keep and exercise the warrants under the
terms and conditions applicable to the warrants in question.
8.7 Upon allocation of
warrants, the Company's board of directors decide that section 8.1
to 8.6, cf. above, shall warrants shall be deviated in respect of
such allocation. A deviation shall appear in appendix 1.3 under
“Special terms”.
9 Adjustment of
the Exercise Price or the number of
shares9.1 If the
Company’s capital structure is modified in a way which implies a
reduction or an increase of the value of the allotted warrants, an
adjustment of the Exercise Price and/or the number of shares, which
may be subscribed for when exercising warrants (the “Number of
Shares”), must be made, so that the value of the warrants remains
unaffected by the modification, with the hereto mentioned
exceptions.
9.2 Adjustment of the
Exercise Price and/or the Number of Shares must take place, inter
alia, if the following events occur before the Beneficiary has
exercised the warrants with the exceptions and modifications set
out in clauses 9.3 and 9.4 below:
(a) the Company’s issue of bonus
shares;
(b) increase of the Company’s share
capital at a price, which is lower than the market price, except in
case of a rights issue;
(c) modification of the nominal amount of
the Company’s shares without modifying the Company’s share capital
respectively;
(d) payment of dividend after divestment
or licensing of a material part of the Company’s or the
subsidiary's assets, where the assets or the remuneration for the
assets constitute more than 20% of the Company’s book value;
(e) reduction of the Company’s share
capital by payment to the shareholders at a different price than
the market price or a reduction of the Company’s share capital for
the covering of losses,
(f) Other situations where the Company’s
capital structure is modified, including by issue of warrants,
convertible bonds etc., which will affect the value of the issued
warrants.
9.3 In the event of a
modification of the nominal value of the Company’s shares in
connection with a resolution to reduce the Company’s capital for
the appropriation to a special trust and/or to cover losses, an
adjustment of the Exercise Price or the Number of Shares must take
place, however, each warrant must entitle the Beneficiary to
subscribe for one (1) share at the new nominal value.
9.4 No adjustment of
the Exercise Price and/or the Number of Shares must take place as a
result of:
(g) an increase or reduction of the
Company’s share capital at market price;
(h) issue of shares, share options,
warrants, convertible bonds or the like as part of an incentive
scheme for members of the board of directors, the management and
employees in the Company or a group company, regardless of whether
such issue takes place at a discount price,
(i) a capital increase as a result of the
exercise of already issued warrants or conversion of already issued
convertible bonds;
(j) the Company participating in a merger
or demerger as the surviving company, unless a capital increase
takes place in connection to the merger or demerger, which implies
an adjustment as set out in clause 9.2, and
(k) changes to the value of the warrants
resulting from derived effects of changes to the Company’s capital
structure, including as a consequence of the operations of the
Company’s business.
9.5 The Exercise Price
cannot be reduced to a price below the par value (nominal value).
If an adjustment of warrants pursuant to clause 9 will result in an
Exercise Price reduced to a price below the par value, the warrants
will lapse, unless the Beneficiary consents to an increase of the
Exercise Price at par value without compensation for the
Beneficiary.
9.6 Adjustment of the
Exercise Price or the Number of Shares pursuant to clause 9 is made
by the Company’s board of directors based on generally accepted
principles and calculations made by the Company’s auditor elected
at the general meeting, unless the Beneficiary and the Company’s
shareholders agree otherwise.
10 Transferability10.1 The
warrants are personal and cannot be sold, given away, pledged or
otherwise transferred to a third party, voluntarily or by distress,
unless the Company’s board of directors gives their prior written
consent (except for transfer in case of the Beneficiary’s death, in
which case the board of directors must approve the transfer to the
heirs of the Beneficiary).
11 Terms of
newly subscribed shares and capital increase by exercise of
warrants11.1 For
the warrants and the new shares in the Company subscribed for by
the exercise of warrants, the following additional terms apply:
(a) existing shareholders have no
pre-emption right to subscribe for warrants or for shares
subscribed for by the exercise of warrants.
(b) the nominal value of the new shares
is DKK 1 or multiples hereof,
(c) the new shares are subscribed for and
paid up in accordance with the terms in respect of exercise as set
out in this appendix,
(d) the new shares will have the same
rights as the existing shares in the Company at the time of
exercise and shall be registered in the name of the holder.
(e) the new shares will carry the right
to receive any dividends payable and other rights as from the date
of the Company’s board of directors' resolution to increase the
share capital,
(f) the new shares will be negotiable
instruments and be freely transferable, and the shares are not
subject to redemption,
(g) the new shares are not subject to
restrictions in any pre-emption rights at future capital increases,
and
(h) the Company defrays the Company’s own
costs in connection with the issue of warrants and capital
increase(s) in connection with the exercise of warrants. The
Company’s costs in this respect are estimated at DKK 50,000 for
allotment and exercise respectively.
11.2 As long as the
Company is listed at Nasdaq Copenhagen, the Company will without
undue delay after the issue of the new shares apply for these
shares to be admitted to trading and official listing at Nasdaq
Copenhagen.
12 Modification
of general terms and conditions, claw-back
12.1 In the event of
extraordinary or unforeseen circumstances, which may have a
negative or positive effect on the value of a Beneficiary’s
warrants, which was not intended at the time of allotment, the
board of directors may at its discretion and by written
notification to the Beneficiary adjust the number of warrants, the
subscription price and the terms for vesting and exercise of
warrants.
12.2 The board of
directors is also entitled to change the terms of the warrants in
order to comply with applicable law, just as the board of directors
may decide to adjust the terms for vesting and exercising of
warrants, as long as it does not constitute a material disadvantage
for the Beneficiary.
12.3 If the Company can
document that the allotment or exercise of warrants has taken place
on the basis of information proving to be incorrect, including as a
result of incorrect accounting information, miscalculations or
fraud, the Company is entitled to resolve (a) that such warrants
will lapse (fully or partially) or (b) to demand a repayment from
the Beneficiary of funds, which the Beneficiary has obtained by
exercising such warrants.
12.4 Irrespective of
section 12.1. and 12.2., performance requirements, including the
deadline for such requirements to be satisfied, can be amended only
with the unanimous approval of the Board of Directors.
13 Financial
aspects of participating in the
scheme13.1 Warrants
or the value of the warrants are not included in the calculation of
holiday pay, pension contributions, severance pay, remuneration or
compensation stipulated by law or other remuneration-based benefits
from the Company.
14 Taxation14.1 Any
tax consequences for the Beneficiary arising out of the warrants
and the subsequent exercise thereof are of no concern to the
Company.
15 Other
Terms15.1 The
board of directors is authorised to redeploy and reissue
warrants.
15.2 In case of
discrepancies between the Danish version and the English version of
this appendix, the Danish version shall prevail.
---
Annex 1.3 to Appendix 1
Date of allotment |
Number of warrants |
Exercise price (DKK per share) |
Exercise period |
Special terms, performance requirements and terms regarding lapsing
of warrants |
June 15,2018 |
900,000 |
2.05 |
June 15, 2022 – June 14, 2023 |
Warrants of the Beneficiary shall lapse without compensation and
notice, if the Company does not achieve an American registration
approval of the NGAL Test (the “FDA Approval”) before commencement
of the Exercise Period. |
August 20, 2018 |
4,100,000 |
2.28 |
August 20, 2022 – August 19, 2023 |
Warrants of a Beneficiary shall lapse without compensation and
notice, if the Company does not achieve an American registration
approval of The NGAL Test (the “FDA Approval”) prior to the
commencement of the Exercise Period. The warrants of a
Beneficiary shall additionally lapse if the Company no later than
12 months after the FDA Approval has not achieved a minimum of 50
new hospital sites in the USA and a growth of at least 100 % (in
local currency) in NGAL revenue compared to the 12 months before
FDA Approval (in local currency).The board of directors decides if
the criteria above are met. Derogation from article 8.2 of the
Terms and Conditions (new wording of article 8.2): ”If a
Beneficiary is a Bad Leaver (as defined below) a Beneficiary’s
warrants will lapse without compensation and without notice upon
termination of the employment, unless the Company specifically, and
no later than upon the termination of the employment, decides
otherwise. If a Beneficiary is an employee, the decision may be
made by the chief executive officer, and if a Beneficiary is an
executive officer, such decision will be made jointly by the
chairman and deputy chairman of the board of directors.” |
December 20, 2018 |
2,500,000 |
2.47 |
December 20, 2022 – December 19, 2023 |
Warrants of a Beneficiary shall lapse without compensation and
notice, if the Company does not achieve an American registration
approval of The NGAL Test to adults or paediatric use (the “FDA
Approval”) prior to the commencement of the Exercise Period.The
warrants of a Beneficiary shall additionally lapse if the Company
no later than 12 months after the FDA Approval has not achieved a
minimum of 50 new hospital sites in the USA and a growth of at
least 100 % (in local currency) in NGAL revenue compared to the 12
months before FDA Approval (in local currency).The board of
directors decides if the criteria above are met. |
April 15, 2019 |
1,000,000 |
2.54 |
April 16 2021 – April 15, 2024 |
Warrants of a Beneficiary shall lapse without compensation and
notice, if the Beneficiary does to reach certain commercial and
developmental targets defined in connection with the
allotment.Derogation from article 8.2 of the Terms and Conditions
(new wording of article 8.2): ”If a Beneficiary is a Bad Leaver (as
defined below) a Beneficiary’s warrants will lapse without
compensation and without notice upon termination of the employment,
unless the Company specifically, and no later than upon the
termination of the employment, decides otherwise. If a Beneficiary
is an employee, the decision may be made by the chief executive
officer, and if a Beneficiary is an executive officer, such
decision will be made jointly by the chairman and deputy chairman
of the board of directors.” |
April 15, 2019 |
4,100,000 |
2.54 |
April 16, 2021 – April 15, 2024 |
Derogation from article 8.2 of the Terms and Conditions (new
wording of article 8.2): ”If a Beneficiary is a Bad Leaver (as
defined below) a Beneficiary’s warrants will lapse without
compensation and without notice upon termination of the employment,
unless the Company specifically, and no later than upon the
termination of the employment, decides otherwise. If a Beneficiary
is an employee, the decision may be made by the chief executive
officer, and if a Beneficiary is an executive officer, such
decision will be made jointly by the chairman and deputy chairman
of the board of directors.” |
15 August 2019 |
1,500,000(250.000 subsequently cancelled) |
1.70 |
16 August 2021 – 15 August 2024 |
Derogation from article 8.2 of the Terms and Conditions (new
wording of article 8.2): ”If a Beneficiary is a Bad Leaver (as
defined below) a Beneficiary’s warrants will lapse without
compensation and without notice upon termination of the employment,
unless the Company specifically, and no later than upon the
termination of the employment, decides otherwise. If a Beneficiary
is an employee, the decision may be made by the chief executive
officer, and if a Beneficiary is an executive officer, such
decision will be made jointly by the chairman and deputy chairman
of the board of directors.” |
30 December 2019 |
250,000 |
1.67 |
30 December 2021 – 29 December 2024 |
Derogation from article 8.2 of the Terms and Conditions (new
wording of article 8.2): ”If a Beneficiary is a Bad Leaver (as
defined below) a Beneficiary’s warrants will lapse without
compensation and without notice upon termination of the employment,
unless the Company specifically, and no later than upon the
termination of the employment, decides otherwise. If a Beneficiary
is an employee, the decision may be made by the chief executive
officer, and if a Beneficiary is an executive officer, such
decision will be made jointly by the chairman and deputy chairman
of the board of directors.” |
11 May 2020 |
2,150,000 |
1.48 |
11 May 2022 – 10 May 2025 |
Derogation from article 8.2 of the Terms and Conditions (new
wording of article 8.2): ”If a Beneficiary is a Bad Leaver (as
defined below) a Beneficiary’s warrants will lapse without
compensation and without notice upon termination of the employment,
unless the Company specifically, and no later than upon the
termination of the employment, decides otherwise. If a Beneficiary
is an employee, the decision may be made by the chief executive
officer, and if a Beneficiary is an executive officer, such
decision will be made jointly by the chairman and deputy chairman
of the board of directors.” |
10 February 2021 |
350,000 |
6.11 |
11 February 2023 – 10 February 2026 |
Derogation from article 8.2 of the Terms and Conditions (new
wording of article 8.2): ”If a Beneficiary is a Bad Leaver (as
defined below) a Beneficiary’s warrants will lapse without
compensation and without notice upon termination of the employment,
unless the Company specifically, and no later than upon the
termination of the employment, decides otherwise. If a Beneficiary
is an employee, the decision may be made by the chief executive
officer, and if a Beneficiary is an executive officer, such
decision will be made jointly by the chairman and deputy chairman
of the board of directors.” |
1 Note: In case any warrants are issued after
the convening notice but prior to the general meeting, the proposed
authorization will be reduced accordingly.
- 2021 10 22 - Announcement no. 18
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