As filed with the U.S. Securities and Exchange Commission on June 3, 2016
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GALAPAGOS NV
(Exact name of registrant as specified in its charter)
| Belgium | Not applicable | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
Generaal De Wittelaan L11 A3
2800 Mechelen, Belgium
+32 1 534 29 00
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Warrant Plan 2016
(Full title of the plan)
C T Corporation System
111 Eighth Avenue
New York, New York 10011
(212) 590-9070
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Mitchell S. Bloom, Esq.
Michael H. Bison, Esq.
Goodwin Procter LLP
Exchange Place
53 State Street
Boston, MA 02109
(617) 570-1000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | x (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
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| Title of Securities to be Registered(1) |
Amount to be Registered (2) |
Proposed Maximum Offering Price per Share (3) |
Proposed Maximum Aggregate Offering Price (3) |
Amount of Registration Fee | ||||
| Ordinary Shares, no par value per share |
745,000 | $51.36 | $38,263,200 | $3,854 | ||||
|
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| (1) | These shares may be represented by the Registrant’s American Depositary Shares, or ADSs. Each ADS represents one Ordinary Share. ADSs issuable upon deposit of the Ordinary Shares registered hereby were registered pursuant to a separate Registration Statement on Form F-6 (File No. 333-203584). |
| (2) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional Ordinary Shares that become issuable under the Registrant’s Warrant Plan 2016 by reason of any stock dividend, stock split or other similar transaction. |
| (3) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) promulgated under the Securities Act. The offering price per share and the aggregate offering price are based upon $51.36, which is the weighted-average exercise price for warrants to be granted under the Warrant Plan 2016 of €46.10, converted from euros to U.S. dollars at an exchange rate of $1.114 per euro, the Federal Reserve Bank of New York noon buying rate for the euro on May 27, 2016. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of this Registration Statement. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Galapagos NV (the “Registrant”) with the U.S. Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement:
(a) The Registrant’s Annual Report on Form 20-F for the year ended December 31, 2015, filed with the Commission on March 25, 2016 (File No. 001-37384), which contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed;
(b) Our reports on Form 6-K furnished to the Commission on April 22, 2016; May 2, 2016; May 11, 2016; May 25, 2016; and June 1, 2016; and
(c) The description of the Registrant’s Ordinary Shares and American Depositary Shares contained in the Registrant’s Registration Statement on Form 8-A filed with the Commission under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on May 8, 2015 (File No. 001-37384), including any amendment or report filed for the purpose of updating such description.
All other reports and documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. Any report on Form 6-K furnished by the Registrant to the Commission after the date of this Registration Statement (or a portion thereof) is incorporated by reference in this Registration Statement only to the extent that the report expressly states that the Registrant incorporates it (or such portions) by reference in this Registration Statement and it is not subsequently superseded. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Belgian law, the directors of a company may be liable for damages to the company in case of improper performance of their duties. The Registrant’s directors may be liable to the Registrant and to third parties for infringement of the Registrant’s articles of association or Belgian company law. Under certain circumstances, directors may be criminally liable.
The Registrant maintains liability insurance for the Registrant’s directors and officers, including insurance against liability under the Securities Act.
To the extent permitted by law, the Registrant will be permitted to indemnify its directors, employees and representatives for all damages they may be due, as the case may be, to third parties as a result of breach of their obligations towards the Registrant, managerial mistakes and violations of the Belgian Companies Code, with the exclusion of damages that are due as a result of gross or intentional misconduct.
Certain of the Registrant’s non-executive directors may, through their relationships with their employers or partnerships, be insured and/or indemnified against certain liabilities in their capacity as members of the Registrant’s board of directors.
In the underwriting agreement the Registrant entered into in connection with its May 2015 global offering, the underwriters agreed to indemnify, under certain conditions, the Registrant, the members of the Registrant’s board of directors and persons who control the Registrant’s company within the meaning of the Securities Act against certain liabilities, but only to the extent that such liabilities are caused by information relating to the underwriters furnished to the Registrant in writing expressly for use in the Registrant’s registration statement and certain other disclosure documents.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this Registration Statement, which Exhibit Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS
| 1. | The undersigned Registrant hereby undertakes: |
(a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
| 2. | The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| 3. | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Mechelen, Belgium on June 3, 2016.
| GALAPAGOS NV | ||
| By: | /s/ Onno van de Stolpe | |
| Name: | Onno van de Stolpe | |
| Title: | Chief Executive Officer | |
POWER OF ATTORNEY
We, the undersigned directors, officers and/or authorized representative in the United States of Galapagos NV, hereby severally constitute and appoint Onno van de Stolpe and Bart Filius, and each of them singly, our true and lawful attorneys-in-fact and agents, with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the registration statement on Form S-8 filed herewith, and any and all pre-effective and post-effective amendments to said registration statement, under the Securities Act of 1933, as amended, in connection with the registration under the Securities Act of 1933, as amended, of equity securities of Galapagos NV, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the U.S. Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that said attorneys-in-fact and agents, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 3, 2016.
| Signature |
Title | |
| /s/ Onno van de Stolpe |
Chief Executive Officer and Director | |
| Onno van de Stolpe | (Principal Executive Officer) | |
| /s/ Bart Filius |
Chief Financial Officer | |
| Bart Filius, MBA | (Principal Financial and Accounting Officer) | |
| /s/ Rajesh Parekh |
Chairman of the Board | |
| Rajesh Parekh, MA, DPhil | ||
| /s/ Harrold van Barlingen |
Director | |
| Harrold van Barlingen, Ph.D. | ||
| /s/ Werner Cautreels |
Director | |
| Werner Cautreels, Ph.D. | ||
| /s/ Howard Rowe |
Director | |
| Howard Rowe, JD | ||
| Signature |
Title | |
| /s/ Katrine Bosley |
Director | |
| Katrine Bosley | ||
| /s/ Christine Mummery |
Director | |
| Christine Mummery, Ph.D. | ||
| Puglisi & Associates | ||
| By: /s/ Donald J. Puglisi |
Authorized Representative in the United States | |
| Name: Donald J. Puglisi | ||
| Title: Managing Director | ||
EXHIBIT INDEX
| Exhibit Number |
Description | |
| 4.1(1) | Articles of Association, as amended (English translation) | |
| 4.2(2) | Form of Deposit Agreement and Form of American Depositary Receipt | |
| 5.1 | Opinion of Argo BV o.v.v.e. CVBA | |
| 23.1 | Consent of Deloitte Bedrijfsrevisoren BV o.v.v.e. CVBA | |
| 23.2 | Consent of Argo BV o.v.v.e. CVBA (included in Exhibit 5.1) | |
| 24.1 | Power of Attorney (included on the signature page) | |
| 99.1 | Warrant Plan 2016 (English translation) | |
| (1) | Filed as Exhibit 4.1 to Registrant’s Registration Statement on Form F-3 (File No. 333-211765), filed with the U.S. Securities and Exchange Commission on June 1, 2016, and incorporated herein by reference. |
| (2) | Filed as Exhibits 4.1 and 4.2 to Registrant’s Registration Statement on Form F-1 (File No. 333-203435), filed with the U.S. Securities and Exchange Commission on April 30, 2015, and incorporated herein by reference. |
Exhibit 5.1
|
ADVOCATEN | AVOCATS | |||
| BUSINESS LAW GROUP | ||||
| Galapagos NV Generaal De Wittelaan L11 A3 2800 Mechelen Belgium |
June 3, 2016
Ladies and Gentlemen,
Re: GALAPAGOS NV
We have acted as Belgian counsel to Galapagos NV (the “Company”), a company incorporated under the laws of the Kingdom of Belgium, in connection with the Company’s registration statement on Form S-8 (the “Registration Statement”) as filed publicly with the U.S. Securities and Exchange Commission (the “Commission”) on the date hereof under the Securities Act of 1933, as amended (the “Securities Act”) in respect of up to 745,000 ordinary shares without nominal value of the Company (the “Shares”) to be issued upon the exercise of outstanding warrants under the warrant plan 2016 of the Company (the “Plan”).
We have examined originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration Statement (ii) a copy of the general rules of the Plan incorporated as an exhibit to the Registration Statement (iii) a letter from the Financial Services and Markets Authority dated May 31, 2016 (iv) a copy of the coordinated articles of association of the Company as at May 19, 2016 and (iv) such corporate documents and records of the Company and such other instruments, notarial deeds, certificates and documents as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In such examinations, we have assumed the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies or drafts of documents to be executed, the genuineness of all signatures and the legal competence or capacity of persons or entities to complete the execution of documents. As to various questions of fact which are material to the opinions hereinafter expressed, we have relied upon statements or certificates of public officials, directors of the Company and others.
We have further assumed for the purposes of this opinion, without investigation, that (i) the Company’s board of directors has duly authorized the Plan (ii) all documents to be executed under the Plan have been duly authorized, executed and delivered by each of the parties thereto other than the Company and (iii) the Plan has been, and will at all times be operated in accordance with its terms.
Based upon and subject to the foregoing, and having regard to such other legal considerations which we deem relevant, we are of the opinion that under the laws of the Kingdom of Belgium, the Shares to be issued upon exercise of the Warrants granted under the Plan, when (i) the Company has taken all necessary action to issue
the Shares in compliance with the then applicable provisions of the Company’s articles of association, the laws of Belgium and the terms of the Plan, and (ii) the Company will have received in full all amounts payable by the participants under the Plan in respect of the Shares, will be validly issued, fully paid for and non-assessable.
This opinion is limited to the laws of the Kingdom of Belgium as in effect on the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, without admitting we are “experts” within the meaning of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder with respect to any part of the Registration Statement.
Very truly yours,
/s/ Nico Goossens
Nico Goossens
For and on behalf of Argo Law bcvba
2
Exhibit 23.1
|
Deloitte Bedrijfsrevisoren / Reviseurs d’Entreprises Berkenlaan 8b 1831 Diegem Belgium Tel. + 32 2 800 20 00 Fax + 32 2 800 20 01 www.deloitte.be |
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Galapagos NV (the “Company”) of our report dated March 23, 2016 relating to the consolidated financial statements of the Company and its subsidiaries, appearing in the Annual Report on Form 20-F of the Company for the year ended December 31, 2015.
Diegem, June 3, 2016
/s/ Gert Vanhees
DELOITTE Bedrijfsrevisoren/Reviseurs d’Entreprises
BV o.v.v.e. CVBA/SC s.f.d. SCRL
Represented by Gert Vanhees
Deloitte Bedrijfsrevisoren / Reviseurs d’Entreprises
Burgerlijke vennootschap onder de vorm van een coöperatieve vennootschap met beperkte aansprakelijkheid /
Société civile sous forme d’une société coopérative à responsabilité limitée
Registered Office: Berkenlaan 8b, B-1831 Diegem
VAT BE 0429.053.863 - RPR Brussel/RPM Bruxelles - IBAN BE 17 2300 0465 6121 - BIC GEBABEBB
Member of Deloitte Touche Tohmatsu Limited
Exhibit 99.1
WARRANT PLAN 2016
ON SHARES
GALAPAGOS NV
GENERAL RULES
Table of Contents
| 1 | Basis and Purpose | 3 | ||||
| 2 | Definitions | 3 | ||||
| 3 | Warrants | 4 | ||||
| 3.1 | General | 4 | ||||
| 3.2 | Number per Beneficiary | 4 | ||||
| 3.3 | Transfer restrictions | 5 | ||||
| 3.4 | Exercise Price | 5 | ||||
| 3.5 | Administration of the Warrant Plan | 5 | ||||
| 4 | Beneficiaries of the Plan | 6 | ||||
| 5 | Acceptance or Refusal of the Offer | 6 | ||||
| 6 | Exercise and Payment Conditions | 6 | ||||
| 6.1 | Exercise Term | 6 | ||||
| 6.2 | Vesting of Warrants | 6 | ||||
| 6.3 | Exercise Period | 6 | ||||
| 6.4 | Conditions of Exercise | 7 | ||||
| 6.5 | Exercise of the Warrants in accordance with the Belgian Companies Code | 7 | ||||
| 6.6 | Change in Control of the Company | 7 | ||||
| 7 | Issuance of New Shares | 7 | ||||
| 8 | Cessation of the Employment or Service Relationship or of the Director’s Mandate | 8 | ||||
| 8.1 | Good Leaver Situation | 8 | ||||
| 8.2 | Bad Leaver Situation | 8 | ||||
| 8.2.1 | After the end of the third calendar year | 8 | ||||
| 8.2.2 | Before the end of the third calendar year | 8 | ||||
| 8.3 | Change of employment | 8 | ||||
| 8.4 | Deviations | 9 | ||||
| 9 | Amendments and Modifications | 9 | ||||
| 10 | Dispute Resolution | 9 | ||||
| 11 | Final Provisions | 9 | ||||
| 11.1 | Additional Information | 9 | ||||
| 11.2 | Taxes and Social Security Treatment | 9 | ||||
| 11.3 | Costs | 10 | ||||
| 11.4 | Relation to employment, consultancy or management agreement or director’s mandate | 10 | ||||
| 11.5 | Shareholders’ Meetings | 10 | ||||
| 11.6 | Communication with Warrant Holders | 10 | ||||
| 11.7 | Address Change | 10 | ||||
| 11.8 | Reoffer or Resale of Shares Received under the Plan | 11 | ||||
| 11.9 | Liens | 11 | ||||
| 11.10 | U.S. Federal Tax Consequences for Participating in the Plan | 11 | ||||
Page 2 of 11
| 1 | Basis and Purpose |
The Board of Directors of Galapagos NV (hereinafter referred to as the “Company”) has approved the present Warrant Plan 2016 by resolution of 1 June 2016 (and by notarial deed of 1 June 2016).
With the Plan set forth hereafter the Company wants to inform all Beneficiaries (see infra sub 2 (“Definitions: Beneficiary”) and sub 4 (“Beneficiaries of the Plan”)) of the conditions under which the Company is willing to offer Warrants. The Company thus wants to acknowledge the efforts made by the Beneficiaries to help to develop the Company to a successful enterprise.
| 2 | Definitions |
In this Plan the words and terms mentioned hereunder have the meanings given below:
Bad Leaver Situation: the effective date on which one of the following situations occurs:
| (i) | the unilateral termination by the Warrant Holder of his employment agreement, consultancy agreement or director’s mandate with the Company or a Subsidiary, or |
| (ii) | the termination by the relevant Company or Subsidiary of the employment agreement, consultancy agreement or director’s mandate of a Warrant Holder for breach by the Warrant Holder in the performance of the relevant agreement or the exercise of the relevant mandate; |
Beneficiary: the Employees, Consultants and Directors of the Company and its Subsidiaries whose name is mentioned in Annex A to this Warrant Plan 2016;
Board of Directors: the board of directors of the Company;
Company: the limited liability company Galapagos, having its registered office at Generaal De Wittelaan L11 A3, 2800 Mechelen, Belgium;
Consultant: a natural person who provides services to the Company or a Subsidiary on a contractual basis, but who is not an Employee (irrespective of whether the contract was entered into directly with the relevant natural person or with a legal entity who has entrusted the performance of the services to such natural person);
Control: the power, de jure or de facto, to have a decisive influence on the appointment of the majority of the Directors or on the orientation of the management, as set forth in article 5 et seq. of the Belgian Companies Code. The terms “to Control” and “Controlled by” shall be construed accordingly;
Deed of Issuance: the notarial deed enacting (i) the acceptance or refusal of the Warrants and (ii) the unconditional issuance of the Warrants;
Director: a natural person or legal entity who at any moment during the existence of the Company exercises a director’s mandate in the Company to which they were appointed by either the Shareholders’ Meeting or the Board of Directors by way of cooptation;
Employee: each employee of the Company or a Subsidiary;
Exercise Period: a period of two weeks within the Exercise Term, to be determined by the Board of Directors, during which Warrants can be Exercised;
Exercise Price: the pre-determined price at which a New Share can be acquired when Exercising a Warrant, during one of the Exercise Periods within the Exercise Term;
Exercise Term: the term during which the Warrant Holder can exercise his Warrants to acquire Shares of the Company, taking into account the specific Exercise Periods and the specific exercise conditions as set forth in chapter 6 of this Plan;
Exercise: to make use of the right attached to the Warrants that were acquired by accepting the Offer, to acquire New Shares at the Exercise Price;
Page 3 of 11
Good Leaver Situation: the effective date of the cessation, in other circumstances than those listed in the definition of Bad Leaver Situation, of the employment agreement or consultancy agreement of the relevant Warrant Holder with, or the director’s mandate of the relevant Warrant Holder in, either the Company or a Subsidiary (including the relevant employing entity ceasing to be a Subsidiary of the Company), with the exception of a cessation accompanied by a simultaneous (other) employment or appointment of the relevant Warrant Holder (or a company Controlled by the Warrant Holder) as a Consultant, Employee or Director of the Company or a Subsidiary;
Grant: the moment on which the Beneficiary accepts the Warrants offered. For the purposes of this Plan (including for Belgian fiscal reasons), the Grant shall be deemed to take place on the sixtieth day following the date of the Offer if the Offer is accepted within sixty days after the date of the Offer;
New Shares: the Shares to be issued pursuant to the exercise of the Warrants under this Plan;
Notice of Acceptance: the form that the Beneficiary receives at the moment of the Offer and that the Beneficiary needs to return, duly executed, to the Company for the acceptance of the Offer;
Offer: the written and dated notification to the Beneficiaries of the Plan as to the opportunity for them to acquire Warrants in accordance with the provisions of this Plan;
Personal Representative(s): the heir(s) of a deceased Warrant Holder;
Plan: the present Warrant Plan 2016 approved by the Board of Directors, as amended from time to time by the Board of Directors in accordance with the provisions of this Plan;
Shares: the shares of the Company;
Subsidiary: a company under the Control of the Company, as further set forth in article 6 of the Belgian Companies Code;
Warrant Agreement: the agreement that may be entered into between the Warrant Holder and the Company;
Warrant: the right to subscribe, within the framework of this Plan, to one New Share within the Exercise Term and the Exercise Period and at the Exercise Price;
Warrant Holder: each Beneficiary who has accepted the Offer and who owns one or more Warrants in accordance with this Plan.
Words and terms denoting the plural shall include the singular and vice versa.
| 3 | Warrants |
| 3.1 | General |
The number of Warrants issued in the framework of this Plan is maximum 745,000. These Warrants will be designated as “Warrants 2016”. The detail of the number of Warrants per Beneficiary, offered under this Plan, is set forth in Annex A to this Plan.
The Warrants are granted by the Company to the Beneficiaries for free.
Each Warrant entitles the Beneficiary to subscribe to one New Share in accordance with the terms and conditions of the Plan.
Offers under this Plan do not need to be the same for every Beneficiary.
| 3.2 | Number per Beneficiary |
The number of Warrants to be offered to the Beneficiaries is determined by the Board of Directors and, as regards the Directors of the Company, by the Shareholders’ Meeting of the Company. This number is set forth in Annex A.
Page 4 of 11
| 3.3 | Transfer restrictions |
The Warrants received are registered in the name of the Warrant Holder and cannot be transferred inter vivos once granted to a Beneficiary.
The Warrants cannot be encumbered by any pledge or in any other manner.
Warrants that, in contravention with the foregoing, are transferred or encumbered shall automatically become null and void.
| 3.4 | Exercise Price |
The Board of Directors shall determine the Exercise Price per Warrant at the moment of the Offer.
As the Shares of the Company are listed or traded on a regulated market at the date of the Offer, the Exercise Price of the Warrants for an Offer to an Employee will, at the election of the Board of Directors, at least be equal to (a) the closing price of the Share of the Company on Euronext Amsterdam and Brussels on the last trading day preceding the date of the Offer, or (b) the average of the closing price of the Share of the Company on Euronext Amsterdam and Brussels during the last thirty (30) days preceding the date of the Offer. For an Offer to a Consultant or a Director, the Exercise Price will, in accordance with article 598 of the Belgian Companies Code, at least amount to the average of the closing price of the Share of the Company on Euronext Amsterdam and Brussels during the last thirty (30) days preceding the date of the Offer. In no event will the Exercise Price be lower than the accounting par value (rounded up to the higher eurocent) of the Shares at the date of the issuance of the Warrants.
Upon Exercise and subsequent capital increase the Exercise Price must be booked as capital for an amount equal to the accounting par value of the Shares at the moment of the establishment of the capital increase resulting from the Exercise. The part of the Exercise Price that exceeds the accounting par value must be booked as an issuance premium.
In deviation of article 501 of the Belgian Companies Code and without prejudice to the exceptions provided by law, the Company, represented by the Board of Directors, expressly reserves the right to take any possible decisions and to carry out any possible transactions which may have an impact on its capital, on the distribution of the profit or on the liquidation surpluses or that may otherwise affect the rights of the Warrant Holders (with the exception of those causing an increase of the accounting par value of the existing Shares (in order not to conflict with article 582 of the Belgian Companies Code)), even in the event that these decisions might cause a reduction of the benefits offered to the Warrant Holders, unless the only purpose of these decisions and transactions would be such reduction of benefits.
Should the rights of the Warrant Holder be affected by such a decision or transaction, the Warrant Holder shall not be entitled to a modification of the Exercise Price, a modification of the exercise conditions or any other form of (financial or other) compensation. The Company, represented by the Board of Directors, may, in its sole discretion, make modifications to (i) the number of Shares that relates to one Warrant and/or (ii) the Exercise Price. As soon as reasonably practicable, the Board of Directors shall give notice in writing of such modification to the relevant Warrant Holder.
In case of a merger, demerger or stock-split of the Company, the rights of the outstanding Warrants and/or the Exercise Price of the Warrants shall be adjusted in accordance with the conversion ratio applicable at the occasion of the merger, demerger or the stock-split to the other shareholders.
| 3.5 | Administration of the Warrant Plan |
The Company is responsible for the management and the administration of the Plan and ensures that all questions of Beneficiaries or Warrant Holders are answered accurately and rapidly.
Page 5 of 11
| 4 | Beneficiaries of the Plan |
Beneficiaries are the individuals as indicated in section 2 (“Definitions—Beneficiary”).
The Warrants under this Plan are in majority reserved for and granted to Employees. The number of Beneficiaries consists in minority of Directors and Consultants and in majority of Employees.
| 5 | Acceptance or Refusal of the Offer |
The Beneficiaries have the possibility to accept the individual Offer in whole, in part or not at all. Each Beneficiary shall receive a Notice of Acceptance form wherein the Beneficiary mentions his/her decision regarding the Offer: (full or partial) Acceptance or Refusal. Acceptance of the Offer has to be formally established by ticking the relevant paragraph in the Notice of Acceptance.
The Notice of Acceptance needs to be returned prior to the ultimate date of response as set forth in the Notice of Acceptance, duly completed and signed, to the address mentioned in the Notice of Acceptance. Such ultimate date of response cannot be later than 75 calendar days after the date of the Offer.
In case the Beneficiary has not accepted the Offer in writing prior to the date mentioned in the Notice of Acceptance, he shall be deemed to have refused the Offer.
For the purposes of this Plan (including for Belgian fiscal reasons), the grant of the Warrants shall be deemed to take place on the sixtieth day following the date of the Offer if the Offer is accepted within sixty days after the date of the Offer.
The Warrants are registered in the name of the Beneficiary. In case of acceptance, the Beneficiary will be recorded as a Warrant Holder in the register of warrant holders of the Company. This register is kept at the registered office of the Company, mentioning the identity of the Warrant Holders and previous warrant holders and the number of Warrants held by them. The Warrant Holder will receive a confirmation of the number of Warrants he has accepted.
The Nomination and Remuneration Committee may decide to replace or complete the Notice of Acceptance by or with a written Warrant Agreement to be signed by the Warrant Holder and the Company and which shall contain the conditions determined by the Nomination and Remuneration Committee, in accordance with this Plan.
The Beneficiary who has accepted the Offer will receive the Warrants as soon as these have been issued by the Deed of Issuance.
| 6 | Exercise and Payment Conditions |
| 6.1 | Exercise Term |
The Exercise Term is eight (8) years, starting from the date of the Offer.
| 6.2 | Vesting of Warrants |
Except to the extent expressly stated otherwise in this Plan or decided otherwise by the Board of Directors in accordance with section 8.4, the Warrants will vest as follows:
| - | for Warrant Holders who are Employees or Consultants: all granted Warrants will fully vest on the first day of the fourth calendar year following the calendar year in which the Grant was made; and |
| - | for Warrant Holders who are Directors: 1/36th of the granted Warrants will vest per started month following the Deed of Issuance. |
| 6.3 | Exercise Period |
Warrants may not be exercised until the end of the third calendar year following the calendar year in which the Grant was made.
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As of the commencement of the fourth calendar year following the calendar year in which the Grant was made, all vested Warrants may be exercised, during an Exercise Period.
The Board of Directors will establish at least one Exercise Period of two weeks per semester. It is the responsibility of the Beneficiary to timely seek information from the Company relating to the establishment of Exercise Periods.
The Board of Directors may decide, in accordance with the applicable rules relating to abuse of insider information, to establish closed periods during which the Warrants cannot be exercised.
| 6.4 | Conditions of Exercise |
Individual Warrants can only be exercised as a whole.
In order to exercise a Warrant, the Warrant Holder needs to submit an appropriate declaration to that effect (the exercise form) to the Board of Directors or to an authorized person designated by the Board of Directors, and to pay the Exercise Price into a bank account designated by the Company and opened in the name of the Company.
On the exercise form, the Warrant Holder needs to mention the number of Warrants he desires to exercise.
In case the bank account is not or not sufficiently credited prior to the end of the Exercise Period, the Warrants will be deemed not to be exercised. The Company will inform the Warrant Holder thereof and will reimburse the amount that was deposited too late or was insufficient as soon as possible within the limits set by law. The Warrants will consequently not be lost and remain exercisable at a later stage insofar as the Exercise Term has not expired.
| 6.5 | Exercise of the Warrants in accordance with the Belgian Companies Code |
In case a Warrant, that is not exercisable or cannot be exercised in accordance with the issuance conditions (as specified in the Plan), becomes prematurely exercisable pursuant to article 501 of the Belgian Companies Code and is thus also prematurely exercised pursuant to article 501 of the Belgian Companies Code, the New Shares that the Warrant Holders receives as a result of such Exercise will not be transferable, except with the explicit prior consent of the Board of Directors, until such time as the Warrant would have become exercisable in accordance with the Plan.
| 6.6 | Change in Control of the Company |
Notwithstanding anything to the contrary in this Plan, in the event of a change in Control of the Company, all Warrants that are still outstanding under this Plan at such time shall, in principle, immediately vest (to the extent they had not all vested yet) and become immediately exercisable during an Exercise Period determined by the Board of Directors, provided, however, that in compliance with applicable (tax) laws the Board of Directors is authorized to establish certain conditions for such vesting and/or exercising that will be applicable to some or all of the Warrant Holders involved, and provided further that, in the event a public takeover bid is made on the securities of the Company, the Warrants shall immediately become fully vested and exercisable as from the date of the announcement of such public takeover bid by the FSMA. In such case, the Board of Directors shall establish an Exercise Period as soon as practicable following the announcement of such public takeover bid.
| 7 | Issuance of New Shares |
The Company shall only be obliged to issue New Shares pursuant to the Exercise of Warrants if all exercise conditions set forth in chapter 6 have been complied with.
As soon as these exercise conditions are complied with, the New Shares will be issued, taking into account the time needed to fulfill the required administrative formalities. The Board of Directors shall to this effect timely, at a date to be determined by the Board of Directors and at least once per semester, have the capital increase established by notary deed.
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New Shares participate in the profit of the financial year of the Company that started on the first of January of the year in which the relevant New Shares have been issued.
In view of a rapid delivery of the Shares resulting from the exercise of Warrants, the Company may propose to the Warrant Holders who have complied with the exercise conditions to receive existing Shares awaiting the issuance of New Shares by notary deed. In such case the Warrant Holders will receive an advance of existing Shares subject to the condition that they sign an authorization by which the New Shares will, upon issuance, immediately and directly be delivered to the Company or to any other party who advanced them the existing Shares.
The Board of Directors has granted power of attorney to any two (2) members of the Board of Directors acting jointly, as well as to the managing Director acting individually, with possibility of sub-delegation and the power of subrogation, to take care of the establishment by notary deed of the acceptance of the Warrants offered, the exercise of the Warrants, the issuance of the corresponding number of New Shares, the payment of the exercise price in cash, the corresponding realization of the capital increase, the allocation to the unavailable account “issuance premiums” of the difference between the subscription price for the Shares and the accounting par value, to bring the Articles of Association in accordance with the new situation of the registered capital, to sign and deliver the relevant Euroclear and bank documentation, and to sign and deliver all necessary documents in connection with the delivery of the Shares (acquired as a result of the exercise of the Warrants) to the Beneficiaries.
The Company will take the necessary actions to have the New Shares listed for trading on a regulated market as soon as they have been issued. The Company has not issued VVPR strips and has no intention to do so in the future.
| 8 | Cessation of the Employment or Service Relationship or of the Director’s Mandate |
| 8.1 | Good Leaver Situation |
If a Good Leaver Situation arises with respect to a Warrant Holder, the Warrants of said Warrant Holder shall continue to vest (if unvested) and, if and when vested, the Exercise Term of the non-exercised Warrants shall remain unchanged and the Warrant Holder will have the time to exercise his non-exercised Warrants during each Exercise Period within the Exercise Term.
If the Good Leaver Situation is caused by the decease of the relevant Warrant Holder, all Warrants held by such Warrant Holder shall pass to his Personal Representative(s) and, upon vesting of the Warrants, the Personal Representative(s) will be able to exercise the non-exercised Warrants during each Exercise Period within the Exercise Term.
| 8.2 | Bad Leaver Situation |
| 8.2.1 | After the end of the third calendar year |
In case a Bad Leaver Situation occurs after the end of the third calendar year following the calendar year in which the Grant was made, the relevant Warrant Holder will have time to exercise, during an Exercise Period, his non-exercised Warrants until six months after the date of the Bad Leaver Situation. All his remaining non-exercised Warrants shall become null and void upon the expiry of such six-month period.
| 8.2.2 | Before the end of the third calendar year |
In case the Bad Leaver Situation occurs before the end of the third calendar year following the calendar year in which the Grant was made, all granted Warrants shall automatically become null and void.
| 8.3 | Change of employment |
| 8.3.1 | In case of a cessation of the employment agreement or consultancy agreement of the relevant Warrant Holder accompanied by a simultaneous (other) employment or appointment of the relevant Warrant Holder (or a company Controlled by the Warrant Holder) as a Consultant, |
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| Employee or Director of the Company or a Subsidiary, the Warrants of said Warrant Holder shall continue to vest as set forth in Section 6.2 (if unvested) and, if and when vested, the Exercise Term of the non-exercised Warrants shall remain unchanged and the Warrant Holder will have the time to exercise his non-exercised Warrants during each Exercise Period within the Exercise Term. |
| 8.3.2 | If, however, at any time following such change as described in section 8.3.1, a Bad Leaver Situation occurs with respect to such Warrant Holder, then the rules set forth in section 8.2 shall apply. |
| 8.4 | Deviations |
The Board of Directors may at its discretion decide to deviate at any time from the provisions set forth in this chapter 8.
| 9 | Amendments and Modifications |
The Board of Directors is authorized to take appropriate measures to safeguard the interests of the Warrant Holders in case:
| - | a fundamental change in the Control of the Company occurs; |
| - | a fundamental change in the applicable laws or regulations occurs; or |
| - | a serious and exceptional circumstance jeopardizing the rights of the Beneficiaries occurs. |
In addition, the Board of Directors may amend the provisions of this Plan to the benefit of the Warrant Holders, to the extent that the contemplated amendments comply with all applicable laws.
This Plan may, if required by the circumstances, be amended by the Company. The Beneficiary shall be informed of such amendments and will be bound by them. The amendments may in no event affect the essential provisions of the Plan. The amendments may not harm the rights of the under this Plan existing Warrant Holders. In the event the rights of the under this Plan existing Warrant Holders would be harmed, the amendments may not be made without their agreement.
| 10 | Dispute Resolution |
All disputes relating to this Plan will be brought to the attention of the Board of Directors, who may propose an amicable settlement for a dispute, as the case may be. If required the dispute will be submitted to Courts and Tribunals competent for the judicial area of Antwerp, department of Mechelen (Belgium) whereby all parties involved shall make election of domicile at the seat of the Company. This Plan is governed by Belgian law.
The Plan is not subject to the provisions of the U.S. Employee Retirement Income Security Act of 1974, as amended, and is not a qualified plan under Section 401(a) of the U.S. Internal Revenue Code.
| 11 | Final Provisions |
| 11.1 | Additional Information |
The Company will provide the Beneficiary at his request with a copy of the articles of association of the Company and any amendments thereto.
| 11.2 | Taxes and Social Security Treatment |
The Company or a Subsidiary shall be entitled, in accordance with the applicable law or customs, to apply a withholding on the cash salary or the compensation for the month in which the taxable moment occurs or on the cash salary or the compensation of any other following month, and/or the Beneficiary shall be obliged to pay to the Company or a Subsidiary (if so required by the Company or by a Subsidiary) the amount of any tax and/or social security contributions due or payable because of the
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fact of the grant, the acceptance, the fact that Warrants become susceptible of being exercised or of the exercise of the Warrants, or due or payable in respect of the delivery of the New Shares.
The Company or a Subsidiary shall be entitled, in accordance with the applicable law or customs, to prepare the required reports, necessary as a result of grant of the Warrants, the fact that Warrants become susceptible of being exercised, or the delivery of the Shares.
| 11.3 | Costs |
Stamp duties, stock exchange taxes and similar charges and taxes levied at the occasion of the exercise of the Warrants and/or the delivery of the New Shares or existing Shares shall be borne by the Warrant Holder.
Costs relating to the issue of the Warrants or to the issue of New Shares shall be borne by the Company.
No fees or commissions will be charged by the Company in connection with the issuance of New Shares. All funds received or held by the Company under this Plan may be combined with other corporate funds and may be used for any corporate purpose.
| 11.4 | Relation to employment, consultancy or management agreement or director’s mandate |
No person has a right to participate in this Plan and a participation in this Plan does not give the Beneficiaries a right to future grants of additional Warrants. The grant of Warrants under this Plan does not contain a promise of a continuous employment by the Company or its Subsidiaries.
Notwithstanding any provision of the Plan, the rights and obligations of any individual or entity as determined in the provisions of his/her director’s mandate, employment agreement or consultancy or management agreement concluded with the Company or a Subsidiary shall not be affected by his/her participation in the Plan or by any right that he/she may have to participate therein.
An individual to whom Warrants are granted in accordance with the Plan shall not be entitled to any damages or compensation as a result of the cessation of his mandate, employment agreement or consultancy or management agreement with the Company or a Subsidiary, based on any reason whatsoever, to the extent that these rights would arise or might arise based on the cessation of the rights he/she might have or the claims he/she could make concerning the exercise of Warrants pursuant to the Plan because of the cessation of such agreement or by reason of the loss or decrease in value of the rights or benefits.
| 11.5 | Shareholders’ Meetings |
Warrant Holders have the right to participate in the Shareholders’ Meetings of the Company, but without voting right and only with an advisory voice, subject to complying with the formalities set forth in the convocation for the Shareholders’ Meeting.
| 11.6 | Communication with Warrant Holders |
By accepting Warrants, the Warrant Holder agrees that documentation can be validly communicated by the Company by e-mail, including convocations for Shareholders’ Meetings and documentation pertaining to the exercise of Warrants.
| 11.7 | Address Change |
Warrant Holders are obliged to keep the Company informed of changes to their address and changes to their e-mail address. Communications sent by the Company to the last known address or e-mail address of the Warrant Holder are validly made.
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| 11.8 | Reoffer or Resale of Shares Received under the Plan |
The Beneficiary may sell the Shares subscribed for pursuant to the Exercise of Warrants in any manner permitted under Belgian law and applicable U.S. securities law, so long as the conditions associated with the holding of privileged information have been met.
The “insider information” provisions of the applicable securities laws and the Company’s insider trading policy impose further restrictions on resales by all individuals who know of material non-public information regarding the Company, whether or not the individual is a staff member, an officer or a director of the Company or any of its Subsidiaries.
| 11.9 | Liens |
No one can place a lien on any Warrant granted to the Beneficiaries under the Plan.
| 11.10 | U.S. Federal Tax Consequences for Participating in the Plan |
The following discussion summarizes the current principal U.S. federal income tax consequences of certain transactions under the Plan if the Beneficiary is subject to U.S. taxes. It does not describe all U.S. federal tax consequences under the Plan, nor does it describe state or local tax consequences that may vary from jurisdiction to jurisdiction. The Beneficiary is advised to consult with a competent tax advisor for additional information about the Beneficiary’s particular circumstances.
The Beneficiary will not have taxable income in the U.S. when the Beneficiary is granted a Warrant. When the Beneficiary Exercises a Warrant, the Beneficiary will have taxable ordinary income in the U.S. equal to the excess of the fair market value of the Shares received on the Exercise date over the price the Beneficiary paid for the Warrant. The Beneficiary’s tax basis for the Shares that the Beneficiary acquires when the Beneficiary Exercises a Warrant will be increased by the amount of such taxable income. The Company will be entitled to a federal income tax deduction in an amount equal to the ordinary income that the Beneficiary recognizes. When the Beneficiary sells the Shares that the Beneficiary acquired by Exercising Warrants, the Beneficiary will realize long-term or short-term capital gain or loss, depending upon the Beneficiary’s holding period for such Shares.
If the Beneficiary surrenders Shares in payment of the Exercise Price of a Warrant, the Beneficiary will not recognize gain or loss on the Beneficiary’s surrender of such Shares. However, the Beneficiary will recognize ordinary income on the Exercise of the Warrants as described above. The number of Shares the Beneficiary receives in such an exchange that is equal to the number of Shares the Beneficiary surrendered will have the same tax basis and capital gains holding period as the Shares surrendered. The balance of the Shares received will have a tax basis equal to the fair market value of the Shares on the date of Exercise, and the capital gains holding period for those Shares will begin on the date of Exercise.
If the Beneficiary chooses to Exercise his Warrant by means of a cashless exercise facility, the Beneficiary will receive cash in an amount equal the difference between the net proceeds of the sale of the underlying Share of the Exercised Warrant and the Exercise Price of the Exercised Warrant. This same amount will be taxable at ordinary income rates in the U.S.
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