REGULATED INFORMATIONMay 12,
2023, 7:00am CET / 1:00am ET
NYXOAH SA(Euronext Brussels:
NYXH)Rue Edouard Belin 12, 1435 Mont-Saint-Guibert,
Belgium(hereinafter the “Company”)
Invitation to Attend the
Annual Shareholders’ Meeting
of the Company to be Held
on June
14, 2023
The board of directors of the Company is pleased
to invite its securities holders to attend the annual shareholders'
meeting of the Company, to be held on Wednesday,
June 14,
2023 at
2:00 p.m.
CET at the Company's seat, or at such other place
as will be indicated prior to such time.
The Company will also set up a video conference
to allow holders of securities of the Company who have duly
registered for the annual shareholders’ meeting to follow the
meeting remotely and ask questions, as the case may be in writing,
during the meeting. The modalities to attend the meeting via video
conference will be communicated to the relevant securities holders
in due time. The video conference will not qualify as an electronic
communication tool to attend and vote at the shareholders' meeting
as referred to in Article 7:137 of the Belgian Code of Companies
and Associations, but will be an extra facility for securities
holders to follow the shareholders' meeting. Holders of securities
wishing to attend the meeting via video conference and also validly
vote on the items on the agenda, are invited to exercise their
voting rights prior to the shareholders’ meeting by following the
rules set out in this convening notice, either by voting remotely
by mail, or by giving a proxy to a representative of the
Company.
In order to facilitate the keeping of the
attendance list on the day of the annual shareholders' meeting, the
holders of securities issued by the Company and their
representatives are invited to register as from 1:30 p.m. CET.
AGENDA OF THE ANNUAL
SHAREHOLDERS’ MEETING
- Acknowledgement and discussion
of:
- the statutory annual accounts for
the financial year ended on December 31, 2022;
- the consolidated financial
statements for the financial year ended on December 31,
2022;
- the annual report of the board of
directors on the statutory annual accounts for the financial year
ended on December 31, 2022;
- the annual report of the board of
directors on the consolidated financial statements for the
financial year ended on December 31, 2022;
- the statutory auditor's report on
the statutory annual accounts for the financial year ended on
December 31, 2022; and
- the statutory auditor's report on
the consolidated financial statements for the financial year ended
on December 31, 2022.
1. Approval
of the statutory annual accounts for the financial year ended on
December 31, 2022 and the proposed allocation of the resultProposed
decision: The shareholders’ meeting decides to approve the annual
accounts for the financial year ended on December 31, 2022 and the
allocation of the result as proposed by the board of directors.
2. Discharge
of directorsProposed decision: The shareholders’ meeting decides to
grant discharge to each of the directors who was in office during
the financial year ended on December 31, 2022 (including Mr. Donald
Deyo, Mr. Jan Janssen and Mr. Raymond Cohen who resigned as
directors in 2022) for the performance of their mandate during that
financial year.
3. Discharge
of the statutory auditorProposed decision: The shareholders’
meeting decides to grant discharge to the statutory auditor who was
in office during the financial year ended on December 31, 2022 for
the performance of his mandate during that financial year.
4. Acknowledgement and approval
of the remuneration reportProposed decision: The shareholders’
meeting decides to approve the remuneration report.
5. Acknowledgement and approval
of the amended remuneration policy
Upon the recommendation of the remuneration
committee, the board of directors proposes to amend the
remuneration policy of the Company to include in the remuneration
policy the justification for deviating from provision 7.12 of the
2020 Belgian Code on Corporate Governance (the “2020
Code”) which requires the board to include, in the
contracts with the CEO and other members of executive management,
provisions that would enable the Company to recover variable
remuneration paid, or withhold the payment of variable
remuneration, and specify the circumstances in which it would be
appropriate to do so, insofar as enforceable by law.
The board of directors believes that this
provision of the 2020 Code is not appropriate and adapted to take
into account the realities of companies in the life sciences
industry that are still in a development phase nor considers that
it is necessary to apply claw-back provisions as (i) the
pay-out of the short-term variable remuneration, based on the
achievement of one or more individual objectives and one or more
Company objectives as set by the board of directors, is paid only
upon achievement of those objectives, and (ii) the Company does not
apply any other performance-based remuneration or variable
compensation.
Furthermore, the ESOP warrant plans set up by
the Company contain bad leaver provisions that can result in the
unexercised share options, whether vested or not, automatically and
immediately becoming null and void if the agreement or other
relationship between the holder and the (relevant subsidiary of
the) Company is terminated for “cause”. Notwithstanding the
Company’s position that warrants are not to be qualified as
variable remuneration (when not depending on performance criteria),
the board of directors is of the opinion that such bad leaver
provisions sufficiently protect the Company’s interests and that it
is therefore currently not necessary to provide for additional
contractual provisions that give the Company a contractual right to
reclaim any (variable) remuneration from the members of the
executive management.
For those reasons, there are no contractual
provisions in place between the Company and the members of the
executive management that give the Company a contractual right to
reclaim from said executives any variable remuneration that would
be awarded.
Proposed decision: The shareholders’ meeting
decides to approve the amended remuneration policy.
6. Appointment of directorOn
January 8, 2023, the board of directors decided to appoint Wildman
Ventures LLC (permanently represented by Mr. Daniel Wildman) on a
provisional basis (“cooptation”) as a director in order to replace
Mr. Raymond Cohen in accordance with Article 7:88 of the CCA and
article 13 of the Company's articles of association. Based on the
information made available by Mr. Daniel Wildman, it was determined
that both Wildman Ventures LLC and Mr. Daniel Wildman satisfy
the applicable requirements for Wildman Ventures LLC (permanently
represented by Mr. Daniel Wildman) to be appointed as an
independent director in accordance with Article 7:87 of the
CCA and provision 3.5 of the 2020 Belgian Corporate Governance
Code. Mr. Daniel Wildman also explicitly declared that neither
he nor Wildman Ventures LLC has any connections with the Company or
an important shareholder, which would interfere with their
independence. The board of directors recommends that the
appointment of Wildman Ventures LLC (permanently represented by Mr.
Daniel Wildman) as independent director be confirmed and that
Wildman Ventures LLC (permanently represented by Mr. Daniel
Wildman) completes Mr. Raymond Cohen’s term of office ending at the
annual shareholders' meeting to be held in 2024.
Proposed decision: The shareholders' meeting
decides to confirm the appointment of Wildman Ventures LLC,
with address at 12520 Sunnydale Drive, Wellington, FL 33414, USA,
and permanently represented by Mr. Daniel Wildman, as an
independent director of the Company within the meaning of Article
7:87 of the CCA and provision 3.5 of the 2020 Belgian Corporate
Governance Code, completing Mr. Raymond Cohen’s term of office
ending at the annual shareholders' meeting to be held in 2024. The
mandate of Wildman Ventures LLC (permanently represented by Mr.
Daniel Wildman) is remunerated as provided for the non-executive
(independent) members of the board of directors in the Company’s
remuneration policy as adopted by the shareholders’ meeting and as
decided by the annual shareholders’ meeting of June 8,
2022.
ADMISSION FORMALITIES AND PARTICIPATION IN THE
SHAREHOLDERS’ MEETING
In order to attend the shareholders’ meeting on
June 14, 2023, the holders of shares and subscription rights are
requested to comply with articles 26 and 27 of the Company’s
articles of association and the following formalities.
The holders of subscription rights issued by the
Company can, in accordance with Article 7:135 of the Belgian Code
of Companies and Associations, only attend the shareholders’
meeting with a consultative vote.
In order to be able to participate in the annual
shareholders' meeting, a holder of securities issued by the Company
must satisfy two conditions: (a) be registered as holder of such
securities on the registration date and (b) notify the Company, as
described below.
Registration
date
The registration date is May 31, 2023 at
midnight (Belgian time). Only persons registered as securities
holders on that date and time will be entitled to attend and (if
they are shareholders) vote at the meeting. The number of
securities held by the securities holder on the day of the meeting
will not be taken into account.
- Holders of registered shares or
subscription rights must be registered in the Company's share
register or subscription rights register, as the case may be, by
midnight (Belgian time) on May 31, 2023.
- Holders of dematerialised shares
must deliver, or have delivered, to the Company, at the latest on
June 8, 2023 at midnight (Belgian time), a certificate issued
by the authorised account holder or by the settlement institution
certifying the number of dematerialised shares registered in the
name of the shareholder in its accounts on the registration date,
for which the shareholder has declared his intention to participate
in the meeting. This certificate must be sent to the Company by
e-mail to shareholders@nyxoah.com.
Intention to participate in the
meeting
The securities holders must inform the board of
directors of the Company by e-mail to shareholders@nyxoah.com,
no later than
June 8,
2023, of their
intention to participate in the meeting, indicate the number of
securities for which they intend to vote, and, for holders of
dematerialized shares, present proof of their registration as a
shareholder on the registration date.
In order to attend the meeting, securities
holders and proxy holders must prove their identity and
representatives of legal entities must submit documents
establishing their identity and their power of representation, at
the latest immediately before the start of the meeting.
Voting by proxy or by mail
Shareholders can exercise their voting rights
prior to the meeting either (i) by voting by mail or (ii) by
giving a proxy to a representative of the Company.
If shareholders vote by proxy, the proxy holder
will be a representative of the Company. This proxy holder may only
exercise the voting right in accordance with the voting
instructions contained in the proxy.
The proxy voting form and the form for voting by
mail approved by the Company must be used for this purpose. These
forms can be downloaded from the Company’s website
(https://investors.nyxoah.com/shareholder-information >
Shareholders' Meetings).
If shareholders vote by proxy or by mail, they
must, in addition to the above formalities, send by e-mail to
shareholders@nyxoah.com a duly completed and signed proxy voting
form or form for voting by mail. These documents must reach the
Company no later than June 8, 2023.
Note that the proxy voting forms and the forms
for voting by mail may be signed by using an electronic signature
as provided for in Article 7:143 § 2 of the Belgian Code of
Companies and Associations.
Participation in the virtual
shareholders’ meeting
Securities holders wishing to participate
remotely, virtually and in real time, to the Company's annual
shareholders’ meeting are required to confirm their participation
and communicate their e-mail address to the Company by June 8, 2023
at the latest by e-mail to shareholders@nyxoah.com.
A few days before the shareholders’ meeting,
securities holders who have completed this formality will receive
by e-mail (at the address they will have communicated to the
Company) a link, and as the case may be a user name and a password,
enabling them to follow and participate in the shareholders’
meeting via their computer, tablet or smartphone.
Just before the start of the shareholders’
meeting, the securities holders will have to click on the link that
will have been previously communicated to them by e-mail, and as
the case may be enter their user name and password, in order to
join the virtual shareholders’ meeting.
Securities holders attending the virtual
shareholders’ meeting will have the opportunity to view the live
broadcast of the meeting in real time and to ask questions to the
directors, as the case may be in writing, during the meeting
regarding the items on the agenda.
New agenda items, proposed decisions and right to ask
questions
Shareholders holding at least 3% of the capital
who wish to request the inclusion of new items on the agenda or to
submit proposals for decision must, in addition to the above
formalities, establish on the date of their request proof of
ownership of the required participation in the capital and send the
text of the agenda items and the proposed decisions by e-mail to
shareholders@nyxoah.com, no later than May 23, 2023. The request
must also mention the e-mail address to which the Company will send
the confirmation of receipt of the request.
The case being, the revised agenda will be
published no later than May 30, 2023.
Shareholders who wish to do so may send any
questions they may have to the Company, relating solely to the
agenda of the annual shareholders’ meeting, by e-mail to
shareholders@nyxoah.com, no later than June 8, 2023. The answers to
these questions will be provided during the annual shareholders’
meeting in accordance with applicable law.
Documentation
All documents concerning the annual
shareholders’ meeting that are required by law to be made
available, as well as the total number of shares and voting rights
outstanding, are available on the Company's website on:
https://investors.nyxoah.com/shareholder-information. The documents
are also available at the seat of the Company and can only be
consulted by appointment made by e-mail (shareholders@nyxoah.com).
Shareholders may also obtain a hard copy of these documents free of
charge by sending an e-mail to shareholders@nyxoah.com.
The aforementioned formalities, as well as the
instructions on the Company's website and on the proxy voting forms
and forms for voting by mail must be strictly observed.
Various
Quorum: There is no particular quorum
requirement for the deliberation and voting of the decisions
proposed in the agenda of the annual shareholders' meeting.
Voting: Each share entitles the holder to one
vote.
Majority: In accordance with applicable law, the
decisions proposed in the agenda of the annual shareholders’
meeting will be adopted if they are approved by a simple majority
of the votes validly cast by the shareholders present or
represented at the shareholders’ meeting.
Personal data: The Company is responsible for
the processing of personal data that it receives or collects from
holders of securities issued by the Company and agents in
connection with the Company’s shareholders’ meeting.
The processing of such data will be carried out
for the purpose of organizing and holding the shareholders'
meeting, including convening, registration, attendance and voting,
as well as maintaining lists or registers of securities holders and
for purposes of analysis of the Company’s securities holders’
base.
The data includes, but is not limited to, the
following: identification data, the number and nature of a holder's
securities issued by the Company, proxies and voting instructions.
This information may also be transferred to third parties for the
purpose of assisting or servicing the Company in connection with
the foregoing.
The processing of such data will be carried out,
mutatis mutandis, in accordance with the Company's privacy notice
available on the Company's website:
https://www.nyxoah.com/privacy-notice-nyxoah.
The Company draws the attention of holders of
securities issued by the Company and agents to the description of
the rights they may have as data subjects, such as, inter alia, the
right of inspection, the right to rectify and the right to object
to processing, which are set out in the section entitled “What
rights can you exercise?” of the aforementioned privacy notice.
All this is without prejudice to the applicable
rules on registration, use of information and participation in
shareholders’ meeting in order to exercise your rights as a data
subject. For any other information relating to the processing of
personal data by or on behalf of the Company, the Company can be
contacted by e-mail at privacy@nyxoah.com.
The board of directors
- ENGLISH - ASM 2023 convening notice - PR - ENG
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