TiGenix
Naamloze vennootschap
die een openbaar beroep doet of heeft gedaan op het spaarwezen
Romeinse straat 12 box 2
3001 Leuven
VAT BE 0471.340.123
RLE Leuven
CONVENING NOTICE TO the annual shareholders' meeting AND THE EXTRAORDINARY SHAREHOLDERS' MEETING to be held on 20 April 2012
The board of directors of TiGenix NV is pleased to invite you to:
- the annual shareholders' meeting of TiGenix NV that will be held at the registered office of TiGenix NV (Romeinse straat 12 box 2, 3001 Leuven) on 20 April 2012 as from 10:00 a.m., with the agenda and proposed resolutions set out below, and
- the extraordinary shareholders' meeting of TiGenix NV that will be held at the registered office of TiGenix NV (Romeinse straat 12 box 2, 3001 Leuven) on 20 April 2012 as from 11:30 a.m., in the presence of a notary, with the agenda and proposed resolutions set out below. In the event that this extraordinary shareholders' meeting cannot take place on 20 April 2012 because the legally required quorum to discuss and resolve has not been reached and a second convening notice is required, this extraordinary shareholders' meeting will take place after such second convening notice, with an identical agenda, on 11 May 2012 as from 14:00 p.m. at the same place and in the presence of a notary.
Agenda and proposed resolutions of the annual shareholders' meeting
1. Acknowledgement and discussion of the annual report of the board of directors and the report of the auditor on the annual accounts for the financial year ending 31 December 2011
2. Acknowledgement and approval of the annual accounts for the financial year ending 31 December 2011
Proposed resolution: The shareholders' meeting approves the annual accounts for the financial year ending 31 December 2011.
3. Allocation of results for the financial year ending 31 December 2011
Proposed resolution: The shareholders' meeting approves the allocation of results for the financial year ending 31 December 2011 as proposed by the board of directors.
4. Acknowledgment and discussion of the annual report of the board of directors and the report of the auditor on the consolidated annual accounts for the financial year ending 31 December 2011
5. Acknowledgment and approval of the consolidated annual accounts for the financial year ending 31 December 2011
Proposed resolution: The shareholders' meeting approves the consolidated annual accounts for the financial year ending 31 December 2011.
6. Release from liability to be granted to the directors and the auditor for the performance of their duties in the course of the financial year ending 31 December 2011
Proposed resolution: The shareholders' meeting releases the directors (as well as the respective permanent representatives of the legal entities which are director) and the auditor of the company from any liability arising from the performance of their duties during the financial year ending 31 December 2011. It is clarified that this release from liability also applies to ING België NV (as well as to its permanent representative) who resigned as director effective as of 16 February 2011, as well as to Mr. Frank Luyten and Galenos SPRL (as well as to its permanent representative) who resigned as directors effective as of 3 May 2011.
7. Confirmation of the appointment of Ysios Capital Partners SGECR SA (with Mr. Joël Jean-Mairet as permanent representative) as director made on a provisional basis by the board of directors
Proposed resolution: The shareholders' meeting resolves to confirm the appointment of Ysios Capital Partners SGECR SA (with Mr. Joël Jean-Mairet as permanent representative) as a director. On 4 May 2011, Ysios Capital Partners SGECR SA (with Mr. Joël Jean-Mairet as permanent representative) was appointed on a provisional basis by the board of directors for the purposes of replacing Mr. Joël Jean-Mairet who resigned as a director. The term of office of Ysios Capital Partners SGECR SA (with Mr. Joël Jean-Mairet as permanent representative) will expire immediately after the annual shareholders' meeting which will be asked to approve the annual accounts for the financial year ending 31 December 2014.
8. Confirmation of the appointment of Ms. Mounia Chaoui-Roulleau as director made on a provisional basis by the board of directors
Proposed resolution: The shareholders' meeting resolves to confirm the appointment of Ms. Mounia Chaoui-Roulleau as a director. On 18 January 2012, Ms. Mounia Chaoui-Roulleau was appointed on a provisional basis by the board of directors for the purposes of replacing Ventech S.A. (with Ms. Mounia Chaoui-Roulleau as permanent representative) which resigned as a director. It is clarified that Ventech S.A. (with Ms. Mounia Chaoui-Roulleau as permanent representative) was appointed itself on a provisional basis by a resolution of the board of directors on 4 May 2011 for the purposes of replacing Ms. Mounia Chaoui-Roulleau who resigned as a director. The term of office of Ms. Mounia Chaoui-Roulleau will expire immediately after the annual shareholders' meeting which will be asked to approve the annual accounts for the financial year ending 31 December 2014.
9. Remuneration policy of the company: continuation of the policy whereby warrants can be granted to the members of the executive management
Proposed resolution: The shareholders' meeting approves the continuation of the possibility to, as part of the remuneration policy of the company, grant warrants to the members of the executive management, including executive directors, provided that the board of directors will apply the conflict of interests procedure, if applicable, at the time of granting the warrants.
To the extent warrants would be granted to members of the executive management, including executive directors, that will happen in the framework of a new, still to be approved warrants plan, the most important terms and conditions of which can be summarized as follows: The warrants are granted free of charge. Each warrant entitles its holder to subscribe to one share in the company at a fixed exercise price determined by the board of directors. More specifically, the exercise price of a warrant will be equal to the lowest of the following prices: (i) the last closing price of the TiGenix share on the stock exchange prior to the date on which the warrant is offered, and (ii) the average closing price of the TiGenix share on the stock exchange over the 30 day period preceding the date on which the warrant is offered, it being understood that, for beneficiaries of the warrants plan that are not employees of the company or its subsidiaries, the exercise price cannot be lower than the average closing price of the TiGenix share on the stock exchange over the 30 day period preceding the date of issuance of the warrants. The warrants have a duration of ten (10) years as from the date of their issuance. Unless the board of directors decides otherwise when granting the warrants, and subject to the end of the cooperation and certain situations in which warrants can become null and void, 25% of the warrants granted to a warrant holder will be deemed definitively vested for the latter on the first anniversary of the granting of the warrants, after which 1/36th of the remaining 75% of the warrants granted to such warrant holder will definitively vest on the last day of each of the 36 months following the first anniversary of the granting of the warrants. Warrants can only be exercised by the warrant holder if they have definitively vested.
The other terms and conditions of the warrants plan will to a large extent be similar to the terms and conditions of the warrants plan approved by the board of directors of the company on 12 March 2010.
Agenda and proposed resolutions of the extraordinary shareholders' meeting
1. Decrease of the registered capital of the company by maximum EUR 80,451,538.50 through the absorption of losses carried forward as shown in the annual accounts as per 31 December 2011, without cancellation of shares, and corresponding modification of Article 5 of the articles of association
Reasons for the proposal: (i) to reduce the losses carried forward, and (ii) to decrease the par value of the shares in order to give the board of directors also in practice the possibility to use the authorized capital which was granted to the board by the shareholders' meeting on 26 April 2011. Since the authorized capital cannot be used to issue shares below par value, the use of the authorized capital is currently limited in practice due to the current par value (EUR 0.978) being above the stock price at the date of the convening notice for this shareholders' meeting.
Explanatory note: Prior to the date of the extraordinary shareholders' meeting which will be asked to decide on the proposed capital decrease, an increase of the registered capital of the company is scheduled to take place (by the board of directors acting in the framework of the authorized capital) with a view to satisfying the company's final obligations in connection with the acquisition by the company on 13 November 2009 of all the shares of Orthomimetics Limited (currently TiGenix Limited). The registered capital of the company should be increased with EUR 525,803.32 through a contribution in kind of a receivable on the company in the same amount against the issuance of 536,534 new shares. Therefore, on the date of the extraordinary shareholders' meeting deciding on the capital decrease proposed by this agenda item, the registered capital will amount to EUR 89,617,458.60 and the number of shares will be 91,659,201 provided that the aforementioned capital increase has been effected.
Proposed resolution in case the capital increase is effected prior to the extraordinary shareholders' meeting deciding on the proposed capital decrease:The shareholders' meeting decides to decrease the registered capital of the company by EUR 80,451,538.50, to bring it from EUR 89,617,458.60 to EUR 9,165,920.10 to set off EUR 80,451,538.50 of losses carried forward, without cancellation of shares. The meeting decides that the capital decrease will be allocated to the fiscal paid-up capital to the largest extent possible. Consequently, Article 5 of the articles of association will be restated as follows: "The registered capital amounts to nine million one hundred sixty-five thousand nine hundred twenty euros and ten eurocents (EUR 9,165,920.10), represented by ninety-one million six hundred fifty-nine thousand two hundred and one (91,659,201) shares without nominal value, each representing 1/91,659,201 of the capital.
The capital has been fully and unconditionally subscribed to and has been fully paid-up.".
Proposed resolution in case the capital increase is not effected prior to the extraordinary shareholders' meeting deciding on the proposed capital decrease: The shareholders' meeting decides to decrease the registered capital of the company by EUR 79,979,388.58, to bring it from EUR 89,091,655.28 to EUR 9,112,266.70, to set off EUR 79,979,388.58 of losses carried forward, without cancellation of shares. The meeting decides that the capital decrease will be allocated to the fiscal paid-up capital to the largest extent possible. Consequently, Article 5 of the articles of association will be restated as follows: "The registered capital amounts to nine million one hundred twelve thousand two hundred sixty-six euros and seventy eurocents (EUR 9,112,266.70), represented by ninety-one million one hundred twenty-two thousand six hundred sixty-seven (91,122,667) shares without nominal value, each representing 1/91,122,667 of the capital.
The capital has been fully and unconditionally subscribed to and has been fully paid-up.".
2. Modification of Article 6 ("Authorized Capital") of the articles of association, it being understood that the below proposed resolution will not be submitted to the vote of the shareholders' meeting in the event that the shareholders' meeting has not approved the aforementioned proposed capital decrease
Proposed resolution: The shareholders' meeting resolves to add the following text as a third subsection at the end of Article 6 of the articles of association:
"6.3. In view of the capital decrease which has been decided after 26 April 2011, the board of directors' aforementioned authorization to increase the registered capital is as of the date of such capital decrease limited to capital increases in one or more transactions with a (cumulated) amount equal to the registered capital set out in Article 5 of the articles of association.".
3. Modification of Article 25 ("Remuneration") of the articles of association
Proposed resolution: The shareholders' meeting resolves to add the following text as a second paragraph to Article 25 of the articles of association:
"The restrictions provided for in Article 520ter, first and second paragraph of the Companies Code do not apply to the company and such in respect of all persons who either directly or by reference fall within the scope of that Article.".
4. Delegation of powers regarding modifications to the articles of association
Proposed resolution: The shareholders' meeting resolves to grant to each director of the company, acting alone, with power to substitute, the power to draw up the coordinated text of the articles of association to reflect the modifications in accordance with the preceding resolutions.
Admission conditions
In order to be admitted to the shareholders' meeting, the holders of securities issued by the company must comply with Article 536 of the Companies Code and Article 30 of the articles of association, and fulfill the formalities and make the notifications described below.
In accordance with Article 537 of the Companies Code, the holders of warrants issued by the company can only attend the shareholders' meeting with a consultative vote.
1. Holders of registered shares and warrants
The holders of registered shares and warrants are entitled to participate in and, in the case of shares, to vote at the shareholders' meeting, provided that:
· their shares or warrants are recorded in their name in the register of registered shares or warrants at midnight (24:00) (CET) on 6 April 2012 (the "record date") and this irrespective of the number of shares or warrants that they own on the date of the shareholders' meeting; and
· they notify the company in writing of (i) their intention to participate in the shareholders' meeting, and (ii) the number of securities for which they wish to participate in the shareholders' meeting, by means of a signed form that must be received by the company at the company's registered office at the latest on 14 April 2012; a model of this form is available at the company's registered office and on the company's website under the tab "Investors / Shareholder meeting" (www.tigenix.com).
2. Holders of dematerialized shares
The holders of dematerialized shares are entitled to participate in and to vote at the shareholders' meeting, provided that:
- their shares are recorded in their name in the accounts of a recognized account holder or a settlement institution at midnight (24:00) (CET) on 6 April 2012 (the "record date") and this irrespective of the number of shares that they own on the date of the shareholders' meeting; and
- at the latest on 14 April 2012, they provide the company (at the company's registered office) with, or arrange for the company (at the company's registered office) to be provided with, a certificate issued by the recognized account holder or the settlement institution certifying the number of dematerialized shares recorded in the shareholder's accounts on the record date in respect of which the shareholder has indicated his intention to participate in the shareholders' meeting.
Only persons who are a shareholder of the company on the record date (6 April 2012) and who have indicated their intention to participate in the shareholders' meeting as set out above will be admitted to the shareholders' meeting.
The shares are not blocked as a result of the above-mentioned process. As a result, the shareholders are free to dispose of their shares after the record date.
Right to add agenda items and to submit proposed resolutions
In accordance with Article 533ter of the Companies Code and Article 35 of the articles of association, one or more shareholders holding together at least three percent (3%) of the registered capital of the company may request for items to be added to the agenda of the shareholders' meeting and submit proposed resolutions in relation to existing agenda items or new items to be added to the agenda, provided that:
- they prove ownership of such shareholding as at the date of their request and record their shares representing such shareholding on the record date (i.e., on 6 April 212); the shareholding must be proven either by a certificate evidencing the registration of the relevant shares in the register of registered shares of the company or by a certificate issued by a recognized account holder or a settlement institution certifying the book-entry of the relevant number of dematerialized shares in the name of the relevant shareholder(s).
- the additional agenda items and/or proposed resolutions have been submitted in writing by these shareholder(s) to the board of directors at the latest on 29 March 2012.
These additional agenda items and/or proposed resolutions may be sent to the company by mail to the company's registered office for the attention of Ms. An Moonen or by e-mail to an.moonen@tigenix.com.
As the case may be, the company shall publish the modified agenda of the shareholders' meeting at the latest on 5 April 2012.
Right to ask questions
In accordance with Article 540 of the Companies Code and Article 35 of the articles of association, all shareholders are entitled, whether during the meeting or in writing before the meeting, to ask questions to the directors with respect to their report or the agenda items and to the auditor with respect to its report.
Questions asked in writing will only be answered if the relevant shareholder has fulfilled the formalities set out above to be admitted to the shareholders' meeting and if the written question has been received by the company at the latest on 14 April 2012.
Written questions may be sent to the company by mail to the company's registered office for the attention of Ms. An Moonen or by e-mail to an.moonen@tigenix.com.
Proxy
In accordance with Article 31 of the articles of association, each shareholder may be represented at the shareholders' meeting by a proxy holder, who does not need to be a shareholder. Except in cases provided for in the law, a shareholder may only appoint one person as proxy holder for a particular shareholders' meeting.
Shareholders who so wish to be represented by proxy, are requested to use the model of proxy form (with voting instructions) that is available at the company's registered office and on the company's website under the tab "Investor / Shareholder meeting" (www.tigenix.com).
The signed proxy form must be received by the company at the company's registered office at the latest on 14 April 2012.
Availability of documents
In accordance with Article 535 of the Companies Code, the shareholders and warrant holders of the company can, upon presentation of their security or of a certificate issued by a recognized account holder or a settlement institution certifying the number of dematerialized shares recorded in the name of the shareholder, obtain at the company's registered office, free of charge, a copy of the documents and reports that relate to this meeting or that must be made available to them pursuant to law.
These documents and reports, as well as the total number of shares and voting rights at the date of the convening notice, are also available on the company's website (www.tigenix.com).
Miscellaneous
In order to facilitate an expedient registration, the participants are requested to be present at least half an hour prior to the start of the shareholders' meeting.
In order to be admitted to the shareholders' meeting, the shareholders, warrant holders and proxy holders must be able to prove their identity (ID card / passport).
Please contact Ms. An Moonen at the following telephone number +32 (0)16 39 79 37 or e-mail address an.moonen@tigenix.com for more information. Correspondence may be sent to TiGenix NV, for the attention of Ms. An Moonen, Romeinse straat 12 box 2, 3001 Leuven.
The board of directors.