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