Invitation to attend the special shareholders’ meeting of the
Company to be held on December 19, 2024
REGULATED INFORMATION
November 19, 2024, 7:00am CET / 1:00am ET
NYXOAH SA
(Euronext Brussels/Nasdaq: NYXH)
Rue Edouard Belin 12, 1435 Mont-Saint-Guibert, Belgium
(hereinafter the “Company”)
Invitation to attend the special
shareholders’ meeting of the Company
to be held on December 19, 2024
The board of directors of the Company is pleased
to invite its securities holders to attend the special
shareholders' meeting of the Company, to be held on
Thursday, December 19, 2024 at 3:00 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 special 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 videoconference will not qualify as an electronic
communication tool to attend and vote at the special 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 special shareholders’ meeting.
Holders of securities wishing to attend the special shareholders’
meeting via video conference and also validly vote on the items on
the agenda, are invited to exercise their voting rights prior to
the special 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 special shareholders' meeting,
the holders of securities issued by the Company and their
representatives are invited to register as from 2:45 p.m. CET.
AGENDA OF THE SPECIAL SHAREHOLDERS’ MEETING
- Approval of all relevant clauses in
the EIB Agreements in accordance with Article 7:151 of the Belgian
Code of Companies and Associations
As announced on 3 July 2024, the Company has
entered into a loan facility agreement (the “Loan
Agreement”) and a synthetic warrant agreement (the
“Warrant Agreement”) with the European Investment
Bank (the “EIB”) (the Loan Agreement and Warrant
Agreement, together the “EIB
Agreements”).
In summary, article 4.7.2 of the Loan Agreement
provides among others that the Company shall promptly inform the
EIB if a Change-of-Control Event has occurred or is likely to
occur. In such case, the Company shall, on request of the EIB,
consult with the EIB as to the impact of such event. If 30 days
have passed since the date of such request and the EIB is of the
opinion that the effects of such event cannot be mitigated to its
satisfaction, or in any event if a Change-of-Control Event has
actually occurred, the EIB may by notice to the Company, cancel the
undisbursed portion of the credit and/or demand prepayment of the
amounts disbursed from time to time by the EIB under the Loan
Agreement that remain outstanding, together with accrued interest
and all other amounts accrued or outstanding. In this context, a
“Change-of-Control Event” means (a) any person or group of persons
acting in concert gaining Control of the Company or of any entity
directly or ultimately Controlling the Company; or (b) the Company
being delisted from both Euronext Brussels and Nasdaq, and
“Control” or “Controlling” means the power to direct the management
and policies of an entity, whether through the ownership of voting
capital, by contract or otherwise and, for the avoidance of doubt,
owning more than 50% (fifty per cent.) of the shares of an entity
would constitute Control.
In summary, article 5 of the Warrant Agreement
provides among others that upon the occurrence of a Trigger Event,
the EIB shall be entitled to exercise its warrant rights relating
to the relevant tranche as from the moment of immediate
notification by the Company in writing about the occurrence of a
Trigger Event. In this context, a “Trigger Event” means, among
others, a Prepayment Event, whereby in accordance with Article
4.7.2 of the Loan Agreement a Change-of-Control Event (as defined
in the Loan Agreement and as further described above) shall be
considered a Prepayment Event.
Proposed decision: The shareholders' meeting
takes note of, approves and ratifies, insofar as required and
applicable, in accordance with Article 7:151 of the Belgian Code of
Companies and Associations, Article 4.7.2 of the Loan Agreement and
Article 5 of the Warrant Agreement and any other provisions in the
EIB Agreements which fall or could be considered to fall within the
scope of Article 7:151 of the Belgian Code of Companies and
Associations (relating to the granting of rights to third parties
which significantly affect the Company's assets or give rise to a
substantial debt or commitment on its behalf, when the exercise of
these rights is subject to the launch of a public takeover bid on
the shares of the Company or to a change in the control exercised
over it). The shareholders' meeting also grants a special power of
attorney to each director of the Company and the General Counsel of
the Company (each a "Proxy
Holder" for the purposes of this resolution),
each Proxy Holder acting individually and with the right of
substitution, to complete the formalities required by Article 7:151
of the Belgian Code of Companies and Associations with regard to
this resolution, including, but not limited to, the execution of
all documents and forms required for the publication of this
resolution in the Annexes to the Belgian Official Gazette.
ADMISSION FORMALITIES AND PARTICIPATION IN THE SPECIAL
SHAREHOLDERS’ MEETING
In order to attend the special shareholders’
meeting on December 19, 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.
The holders of subscription rights issued by the
Company can, in accordance with Article 7:135 of the Belgian Code
of Companies and Associations, attend the special shareholders’
meeting with a consultative vote.
In order to be able to participate in the
special 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 December 5, 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 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 December 5, 2024.
- Holders of dematerialized shares
must deliver, or have delivered, to the Company, at the latest on
December 13, 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 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 December 13, 2024, 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 December 13, 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’
meeting
Securities holders wishing to participate
remotely, virtually and in real time, to the Company's special
shareholders’ meeting are required to confirm their participation
and communicate their e-mail address to the Company by December 13,
2024 at the latest by e-mail to shareholders@nyxoah.com.
A few days before the special 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 special
shareholders’ meeting via their computer, tablet or smartphone.
Just before the start of the special
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 special shareholders’ meeting.
Securities holders attending the virtual special
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 November 27, 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 December 4, 2024.
Shareholders who wish to do so may send any
questions they may have to the Company, relating solely to the
agenda of the special shareholders’ meeting, by e-mail to
shareholders@nyxoah.com, no later than December 13, 2024. The
answers to these questions will be provided during the special
shareholders’ meeting in accordance with applicable law.
Documentation
All documents concerning the special
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 special 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 special 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 special 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 special shareholders’ meeting.
The processing of such data will be carried out
for the purpose of organizing and holding the special 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
- Nyxoah - SGM 2024 convening notice - PR (ENG)
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