NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN THE UNITED STATES, CANADA,
AUSTRALIA OR JAPAN
Announcement no. 8/2007
To the Copenhagen Stock Exchange and the press.
Copenhagen, 1 June 2007
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| Articles of Association |
| of |
| EXIQON A/S |
| CVR no. 18 98 44 31 |
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NAME, REGISTERED OFFICE AND OBJECTS
Article 1
The name of the Company is Exiqon A/S.
The registered office of the Company is situated in the municipality of
Rudersdal.
Article 2
The objects of the Company are to carry out research, development, production
and trade.
SHARE CAPITAL
Article 3
The Company's share capital is DKK 24,274,490.00 divided into shares of DKK 1
each or multiples thereof.
The share capital has been fully paid up.
Article 3 a
At a meeting held by the Company's Supervisory Board on 18 April 2007, the
Supervisory Board approved finally the issuance of 654,620 warrants (adjusted to
1,309,240) with the right to subscribe for shares of DKK 654,620 nominal value
(adjusted to 1,309,240) at a price of DKK 19.00 (adjusted to 9.50) per share of
DKK 1 nominal value and adopted the resulting capital increase. The terms
governing such issued warrants are included in Appendix 1, which constitutes an
integral part of these Articles of Association
Article 3 b
In the period until 11 May 2012, the Company's Supervisory Board is authorised
through one or more issues to increase the Company's share capital by up to a
nominal value of DKK 10,000,000 shares with a nominal value of DKK 1 each, see
s. 37 of the Danish Public Companies Act. The capital increases may be effected
through cash contributions or through non-cash contributions with or without
pre-emption rights for the Company's existing shareholders and on the terms laid
down by the Supervisory Board. Where the capital increase is effected through
cash contribution at a subscription price which is lower than the market price,
the current shareholders shall enjoy a pre-emption right in proportion to their
shareholdings.
Through its decision on 11 May 2007, the Supervisory Board has exercised the
authorisation to increase the Company's share capital by up to a nominal value
of DKK 9,993,500 of which a nominal value of DKK 9,993,500 have been subscribed
for.
Article 3 c
In the period until 2 May 2012, the Company's Supervisory Board is authorised
through one or more issues to issue warrants in accordance with s. 40(b) of the
Danish Public Companies Act to members of the Company's Supervisory Board,
Executive Board, employees and external consultants and advisors entitling the
holders to subscribe to an amount of shares in the Company up to a total nominal
value of DKK 3,500,000 shares with a nominal value of DKK 1 each without
pre-emption rights for the Company's existing shareholders at a price to be
determined by the Supervisory Board. However, the total number of warrants
issued in accordance with this provision as well as Article 3a cannot amount to
more than 12% of the Company's nominal share capital. The Supervisory Board is
also authorised to effect the related capital increase, to lay down the terms
applicable to the allocation and issue as well as to determine the subscription
period during which the warrants can be exercised.
Article 3c1
At a meeting held by the Company's Supervisory Board on 11 May 2007, the
Supervisory Board decided in accordance with the authorization given in Article
3c to issue 1,062,566 warrants corresponding to shares of DKK 1,062,566 nominal
value and adopted the resulting capital increase. The terms and conditions for
the warrants are set out in appendix 2 which constitutes an integral part of
these Articles of Association. Hereinafter, the authorization in Article 3c
exists for the remaining 2,437,434 warrants.
Article 3 d
The new shares which are issued in accordance with the above authorisations
shall be negotiable instruments made out in the name of the holder. There shall
be no restrictions in the transferability of the shares and no shareholder shall
be under an obligation to have his shares redeemed in part or in whole. The
shares shall carry the same rights as the existing shares. The shares shall
entitle the holder to dividend and other rights in the Company as from the time
of registration of the capital increase with the Danish Commerce and Companies
Agency.
Article 3 e
The Supervisory Board is authorised to amend the Articles of Association in case
of full or partial exercise of the granted authorisations.
Article 4
The shares shall be made out in the name of the holder and registered in the
Company's Register of Shareholders.
The Register of Shareholders shall be kept and maintained by VP Investor
Services A/S (VP Services A/S), Helgeshøj Allé 61, P.O. Box 20, DK-2630
Taastrup. Dividend payments etc. are subject to the rules laid down by the VP
Securities Services.
The shares shall be negotiable instruments and there shall be no restrictions in
the transferability of the shares.
No share shall confer any special rights. No shareholder shall be under an
obligation to have his shares redeemed in whole or in part by the Company or a
third party.
The shares are issued through the VP Securities Services.
GENERAL MEETINGS
Article 5
General Meetings shall be held at the registered office of the Company or in the
Capital Region of Denmark.
The Annual General Meeting shall be held once a year before the end of April.
An Extraordinary General Meeting shall be held when deemed appropriate by the
Supervisory Board, an auditor or a General Meeting. An Extraordinary General
Meeting shall be convened within two weeks when required in writing, for the
consideration of a specific issue, by shareholders owning in total at least 1/10
of the share capital.
General Meetings shall be convened by the Supervisory Board by email to each
registered shareholder who has so requested, by advertisement in at least one
national newspaper and through the Copenhagen Stock Exchange giving not more
than four weeks' and not less than eight days' notice. The notice convening the
General Meeting shall state the issues to be considered at the General Meeting.
If a resolution to amend the Articles of Association is to be considered at the
General Meeting, the essential contents of such proposed resolution shall be
stated in the notice convening the General Meeting. A notice convening a General
Meeting at which a resolution pursuant to s. 79(1) or s. 79(2) of the Danish
Public Companies Act is to be considered shall contain the full wording of the
proposed resolution to amend the Articles of Association.
Not later than eight days before the General Meeting, the agenda and the
complete proposals and, in respect of the Annual General Meeting, also the
approved annual report shall be available for inspection by the shareholders at
the offices of the Company.
Any shareholder is entitled to have a particular issue considered at the General
Meeting if such shareholder makes a written request to this effect to the
Supervisory Board not later than one week after the Company's publication of the
preliminary announcement of financial statements.
Article 6
At the Annual General Meeting, the following business shall be transacted:
1. The Supervisory Board's report on the Company's activities in the past year.
2. Presentation of the audited annual report for approval.
3. Resolution on the appropriation of profits or settlement of loss in
accordance with the adopted annual report.
4. Election of members to the Supervisory Board.
5. Appointment of auditor(s).
6. Any proposals from the Supervisory Board or the shareholders.
CHAIRMAN OF THE GENERAL MEETING
Article 7
A chairman appointed by the Supervisory Board shall preside over the General
Meeting and resolve any issues relating to the consideration of issues, the
voting and its result.
REPRESENTATION AND VOTING RIGHTS
Article 8
All shareholders shall be entitled to attend General Meetings in person or by
proxy and to take the floor, provided that they within five days before the
General Meeting have notified the Company of their attendance and have obtained
an admission card. Admission cards will be issued to all shareholders recorded
in the Company's Register of Shareholders or against presentation of a deposit
transcript from the VP Securities Services or the custodian bank, which
transcript shall not be more than five days old, as documentation for the
shareholding, and if so required by the Company, a written statement from the
shareholder that the shares have not been and will not be transferred to any
third party before the General Meeting.
A shareholder is entitled to be represented at the General Meeting by a proxy
who shall present a written and dated power of attorney. The term of such power
of attorney may not exceed one year.
Every share of DKK 1 shall confer one vote.
A shareholder who has acquired shares by transfer may not exercise his or her
voting right on the said shares at General Meetings convened unless the shares
have been registered in the Company's Register of Shareholders, or the
shareholder has given the Company notice of and substantiated his or her
acquisition.
Only proposed resolutions which have been included on the agenda may be adopted
at the General Meeting.
Issues considered at the General Meeting shall be decided by a simple majority
of votes unless the Danish Public Companies Act or the Articles of Association
stipulate any special rules on representation and majority.
A summary of proceedings at the General Meeting shall be recorded in the
Company's Minute Book which shall be signed by the Chairman of the General
Meeting.
NOTIFICATION
Article 9
The Company uses electronic exchange of documents and electronic mail in its
communication with its shareholders.
The Company shall send all notifications to its shareholders using electronic
mail, including notices convening Annual and Extraordinary General Meetings as
well as agenda and annual report. Documents and notifications will also be
available at the Company's website www.exiqon.com.
All shareholders must notify the Company of their e-mail addresses and must keep
such information updated.
Information as to system requirements and the use of electronic communication
shall be provided by the Executive Board of the Company directly to the
shareholders or at the Company's website www.exiqon.com.
SUPERVISORY BOARD AND EXECUTIVE BOARD
Article 10
The Supervisory Board shall be composed of five to seven members elected by the
General Meeting. The Supervisory Board shall elect its own Chairman and possibly
also a Vice-Chairman.
The members shall retire every year at the Annual General Meeting. Retiring
members may be re-elected.
No one who have attained the age of 70 shall be eligible for election to the
Supervisory Board. A member of the Supervisory Board shall, on attaining the age
of 70, retire at the end of the next Annual General Meeting.
The Supervisory Board shall receive an annual fee, the total of which shall
appear from the annual report for the relevant year.
The Supervisory Board may grant powers of procuration to individuals to sign
either singly or collectively.
Article 11
The Supervisory Board shall be in charge of the general management of all the
Company's affairs.
The Supervisory Board shall form a quorum when more than half of its members,
including the Chairman, or in his absence the Vice-Chairman, are present. In the
event of equality of votes, the Chairman, or in his absence the Vice-Chairman,
shall have the casting vote.
The Chairman, or in his absence the Vice-Chairman, shall convene a Supervisory
Board meeting when necessary or when a Supervisory Board member or an executive
officer makes a request to this effect.
Article 12
To handle the daily operation of the Company, the Supervisory Board shall
appoint an Executive Board consisting of one to three members, of which the
Company's chief executive officer is reported as such to the Danish Commerce and
Companies Agency.
POWERS TO BIND THE COMPANY
Article 13
The Company shall be bound by the joint signatures of three Supervisory Board
members or the joint signatures of the Chairman of the Supervisory Board and the
chief executive officer.
FINANCIAL STATEMENTS AND AUDIT
Article 14
The Company's annual report shall be audited by a state-authorised public
accountant.
The auditor shall be appointed by the General Meeting for terms of one year.
Article 15
The Company's financial year shall be the calendar year.
*****
As adopted by the Supervisory Board on 11, 24 and 31 May 2007.
Appendix 1 to the Articles of Association of Exiqon A/S (formerly Article 3 d).
Pursuant to the authorization in the Company's Articles of Association, the
Supervisory Board has in May and December 2006 issued 654,620 warrants to
employees and the Chairman of the Company's Supervisory Board. As a result of
the bonus share issue adopted at the Company's Annual General Meeting on 2 May
2007, the amount of warrants has been adjusted to a total of 1,309,240 warrants
entitling the holders to subscribe to a nominal amount of 1,309,240 shares with
a nominal value of DKK 1 each at a price of 9.50, corresponding to DKK 9.50 per
share of DKK 1 nominal value each.
In this connection, the Supervisory Board has laid down the following terms
governing subscription and exercise of the warrants as well as the related cash
capital increase:
As regards 939,212 of the warrants issued in 2006, half of these are vested for
exercise now, an additional quarter is vested for exercise as from the first day
of trading after listing of the Company's shares on the Copenhagen Stock
Exchange and the remaining quarter is vested for exercise as from 31 December
2007.
As regards 139,812 of the warrants issued in 2006 these are vested for exercise
as from the first day of trading after listing of the Company's shares on the
Copenhagen Stock Exchange.
As regards the remaining 230,216 of warrants issued in 2006 these are vested for
exercise from the issuance hereof.
The issued warrants are exercisable during the following periods: (i) for a
period of 28 days as from the Company's publication of its quarterly and half
year reports starting with the publication of the half year report for 2007; and
(ii) for a period of 28 days as from the Company's publication of the
preliminary announcement of financial statements.
In the event of a resolution (1) to liquidate the Company, (2) to sell not less
than 2/3 of the Company's share capital, (3) to demerge the Company, (4) to
merge with the Company as the discontinuing company, or (5) to exchange shares
with the Company as the investing company, the holders of warrants may,
irrespective of any fixed exercise periods, cf. above, exercise their warrants
to subscribe for new shares in the Company immediately after the resolution on
the liquidation of the Company, a collective sale of not less than 2/3 of the
share capital, an exchange of shares, or the signing of the demerger or merger
plan.
The Company shall notify any warrant holders in writing if a resolution of the
above nature is adopted. In case a warrant holder wishes to exercise his or her
warrants, notice thereof shall be given to the Company in writing within three
weeks of the date of the posting of the notification by the Company.
After the expiry of this period, any warrants in respect of which no notice of
exercise has been given shall lapse automatically and without notice or
compensation.
In the event that (1) the Company's share capital is increased to a price below
the market price, (2) the Company issues warrants, convertible instruments of
debt or the like, whereby the shares in the Company may be subscribed to at a
price below the market price, (3) the Company issues bonus shares to the
existing shareholders, or (4) the Company's share capital is reduced by payment
to the shareholders at a price above market price, then the subscription price
shall be reduced and the number of shares which may be subscribed for shall be
increased to such an extent that the subscriber is compensated for the relevant
circumstance according to the below calculation.
In the event that (1) the Company's share capital is increased to a price above
the market price, or (2) the Company's capital is reduced by payment to the
shareholders at a price below the market price, then the subscription price
shall be increased and the number of shares which may be subscribed for shall be
reduced to such an extent as to adjust for the advantage gained by the
subscriber, cf. the below calculation.
In the event that the Company distributes more than 10% of the equity, then the
number of shares which may be subscribed for and the price at which the
subscription may be made shall be adjusted according to the below provisions.
If one of the above circumstances occurs, the Company's auditor shall make an
adjustment according to the below formula. If a distribution of more than 10 %
of the equity is made, the Company's auditor shall make an adjustment, cf.
below.
The exercise price shall be multiplied by the factor , where
= (A x p) + (B x q)
(A + B) x p
where "A" is the Company's nominal share capital prior to the capital increase,
"B" is the nominal capital increase/decrease amount, "p" is the market price of
the shares prior to the capital increase, and "q" is the (favorable)
subscription price for the new shares.
Further, the number of shares which may be subscribed for according to the
warrants shall be multiplied by the following fraction: 1
If an adjustment of the subscription price and/or the number of shares which may
be subscribed for according to the above formula results in the value of the
warrants in the Company being increased or reduced by more than 10 % in relation
to the value of the warrants prior to the adjustment, the above formula shall
not be used. Instead, the number and price of the shares shall be determined
according to the below provisions.
In all other cases, the Company's auditor shall adjust the price and/or the
number of shares which may be subscribed for in such a way that the position of
the subscriber is neutral, if possible, in relation to the changes in the
Company's capital position. Accordingly, efforts shall be made to ensure that
the subscriber may subscribe for shares in such a way that the subscriber
obtains the same ownership share of the Company for the same payment, both
before and after the changes in the Company.
In the event of any price-relevant changes in the Company of a similar nature
and with a similar effect in respect of the subscriber as set out above, an
equivalent adjustment of the subscription price shall be made, but see below.
In the event that the Company's share capital is reduced to cover a loss, the
number of shares which the holders of warrants may subscribe for by exercising
the warrants shall be reduced (rounded down) so that the position of the warrant
holders in relation to units of capital in the Company is the same as if the
warrants had been exercised immediately before the resolution to reduce the
capital. The subscription price shall not be reduced.
In the event that (1) the Company's share capital is increased or reduced to the
market price, (2) the Company resolves to merge with the Company as the
continuing company, (3) the Company resolves to issue shares to the Company's
employees as part of a general employee share scheme, perhaps at a price below
the market price, (4) the Company makes a distribution of less than 10 % of the
equity, or (5) the Company exchanges shares with the Company as the receiving
company, no adjustment shall be made to the subscription price or the number of
shares which may be subscribed for.
If one of the circumstances resulting in an adjustment is available prior to the
exercise period, the Company's Supervisory Board shall request the Company's
auditor to calculate the adjustment to be made, so that notice in writing of the
result of the calculation can be forwarded to all the warrant holders not later
than one week before the said exercise period begins. If a resolution to wind up
etc. the Company is adopted, and circumstances requiring an adjustment of the
subscription price and/or the number of shares exist, the auditor's basis of
calculation shall be annexed to the notice sent by the Company to the warrant
holders.
The auditor's adjustment shall be made in accordance with accepted principles.
If the calculation implies the determination of the Company's market price, such
determination shall be made on the basis of generally accepted principles in
respect thereof. The auditor's calculation shall be final and binding on the
Company and any warrant holders.
If an adjustment implies that the subscription price is below par, the warrants
shall, as a general rule, not be exercisable, always provided that a warrant
holder may exercise his or her warrants if he or she accepts that the price is
increased to par without compensation.
With reference to ss. 32(1)(4) to 32(1)(6) and s. 32(1)(9) of the Danish Public
Companies Act, cf. s. 40b(3) of the Danish Public Companies Act, the Supervisory
Board has resolved that the following terms shall apply in connection with the
issue of warrants and any later subscription for new shares by exercise of the
warrants:
THAT the existing shareholders shall have no pre-emption rights to the warrants
as the warrants are offered for the benefit of a specific circle of employees
and Supervisory Board members in the Company;
THAT unless the Supervisory Board consents thereto, the warrants granted may not
be levied in execution, assigned or in any other way transferred, whether in
ownership or as security, always provided that the warrants may be left by will
or on intestacy or be included in the case of division of matrimonial property
so that the rights according to the warrants may pass to the estate or the
beneficiaries of a deceased warrant holder or to his or her spouse;
THAT the existing shareholders shall have no pre-emption rights to any new
shares issued on the basis of the warrants;
THAT any new shares issued on the basis of the warrants shall be paid up in cash
on subscription;
THAT any new shares issued by exercise of the warrants shall be negotiable
instruments;
THAT any new shares issued by exercise of the warrants shall be made out in the
name of the holder and registered in the Company's Register of Shareholders;
THAT in respect of any new shares issued by exercise of the warrants, no
restrictions shall apply to future capital increases;
THAT any new shares issued by exercise of the warrants shall confer the right to
dividend and other rights in the Company from the financial year in which the
shares are subscribed for, but not in respect of the previous financial year;
THAT in the event that prior to the exercise of the warrants changes have been
made in the rights attached to the shares in the Company in general, any new
shares issued by exercise of the warrants shall carry the same rights as the
other shares in the Company at the time of the exercise; and
THAT the Company shall be responsible for paying the costs and expenses incurred
in connection with the issue of the warrants and any subsequent increases of
capital in relation thereto. The Company's costs and expenses in connection with
the issue of warrants are estimated at DKK 25,000 per issue, and the expenses
per issue in respect of the ensuing capital increase are estimated at DKK
25,000.
Appendix 2 to the Articles of Association of Exiqon A/S.
Pursuant to the authorization in the Company's Articles of Association, the
Supervisory Board has on 11 May 2007 issued 1,062,566 Warrants, entitling the
holders to subscribe for up to nominally 1,062,566 shares with a nominal value
of DKK 1 each.
In this connection, the Supervisory Board has laid down the terms in clause 1
“Terms of 759,063 warrants” governing subscription and exercise of 759,063 of
the Warrants issued as well as the related cash capital increase and the terms
in clause 2 “Terms of 303,503 Warrants” governing subscription and exercise of
the remaining 303,503 of the Warrants issued as well as the related cash capital
increase.
Terms of 759,063 Warrants
Warrant
Each Warrant entitles (but does not obligate) the Holder to subscribe for one
share with a nominal value of DKK 1.00 each.
Consideration
The Holder shall not pay any consideration for the issued Warrants.
Conditions for Exercise
The issued Warrants may only be exercised if the Company's shares are accepted
for listing on the Copenhagen Stock Exchange.
Exercise Price
The Exercise Price of the issued Warrants shall be fixed by the Company's
Supervisory Board at the subscription price for the Company's shares fixed in
connection with the contemplated IPO of the Company's shares in 2007 on the
Copenhagen Stock Exchange, which is DKK 40.00 per share of DKK 1, plus 5% per
year. This additional payment shall be calculated per calendar day from the time
of grant of the Warrants and until the time at which the Holder's Exercise
Notice is received at the Company's address for the attention of the Chairman of
the Supervisory Board, cf. clause 1.7.
Exercise Date
One thirty-sixth (1/36) of the Warrants issued is vested for exercise from the
first day of the calendar month following the date of issuance of the relevant
Warrants. Another one thirty-sixth (1/36) of the Warrants issued is vested for
exercise from the first day of each new calendar month until all of the Warrants
issued have become exercisable.
Exercise windows
The vested Warrants are exercisable during the following periods (the "Exercise
Period"): (i) for a period of 28 days as from the Company's publication of its
quarterly and half year reports starting with the publication of the Company's
half year report for 2007; and (ii) for a period of 28 days as from the
Company's publication of the preliminary announcement of financial statements.
Exercise Notice
If a Holder wishes to exercise his/her Warrants, the Holder shall inform the
Chairman of the Supervisory Board of the Company in writing thereof (the
"Exercise Notice") so that such Exercise Notice has arrived at the Company's
address (for the attention of the Chairman of the Supervisory Board) within an
Exercise Period.
The Holder shall specify in the Exercise Notice how many Warrants the Holder
intends to exercise.
Where the Holder does not pay the full subscription amount in accordance with
clause 1.18.1 (ii) below of the shares to be subscribed for pursuant to the
Exercise Notice, the Exercise Notice shall lapse automatically and shall be
unenforceable. The Exercise Notice shall, however, not lapse and shall be
considered received in due time irrespective of the fact that the Holder only
pays in the part of the subscription amount which is not made up of the
additional payment laid down in clause 1.4, where the Holder in the Exercise
Notice requests the Supervisory Board for a calculation and statement of the
remaining part of the subscription amount. Subsequently, the Supervisory Board
shall as quickly as possible notify the Holder of such amount and the
calculation hereof, and, consequently, the Holder shall pay in this amount
within five (5) days from receipt of such notification.
Assuming timely submission of the Exercise Notice and timely payment of the full
subscription amount to the Company in accordance with the above, the Company is
required to apply for registration with the Danish Commerce and Companies Agency
of the capital increase made in connection with the Holder's exercise of his/her
Warrants, see section 36(3) of the Danish Public Companies Act.
Adjustment
The Exercise Price and/or the number of shares that can be subscribed for
pursuant to the issued Warrants shall not be adjusted unless otherwise
stipulated in this clause 1.8.
The number of shares that can be subscribed for upon the exercise of a Warrant
shall be revised up or down (to the extent permitted by legislation) to the
effect that the relevant Warrant (individually or together with other Warrants
held by the Holder) entitles the Holder to subscribe for a pro rata unchanged
ownership interest in the Company against the contribution of an unchanged
subscription amount in the following cases:
issue of bonus shares; or
reduction of the Company's share capital to cover loss.
The Exercise Price and/or the number of shares that can be subscribed for
through exercise of a Warrant shall be revised up or down (to the extent
permitted by legislation) to the effect that the Holder is compensated for the
dilution, if any, of the value of the relevant Warrant if the Company resolves
to:
increase the Company's share capital at a price below the market price of the
Company's shares at the time of the resolution hereof;
issue convertible debt instruments at a conversion price below the market price
of the Company's shares at the time of the resolution hereof;
issue new Warrants (other than the Warrants issued pursuant to article 3a of the
Company's Articles of Association) at an exercise price below the market price
of the Company's shares at the time of resolution;
acquire shares in the Company at a price exceeding the market price of the
Company's shares at the time of the acquisition; or
reduce the Company's share capital through payments to the Company's
shareholders, distribution of dividend or payments from a special fund pursuant
to section 44a (1)(3) of the Danish Companies Act where such payments exceed 10%
of the Company's equity immediately prior to the payment.
Merger and solvent liquidation
Where, during the time until the exercise of the issued Warrants, the Company
resolves to dissolve the Company by merger or solvent liquidation, the Company
is entitled and required, regardless of whether clauses 1.5 and 1.6 state
otherwise, to move forward the vesting and exercise date of such Warrants by
notifying the Holder in writing giving him/her a period of two (2) weeks to
exercise the relevant Warrants before the resolution to dissolve the Company
takes legal effect. The Holder's Exercise Notice shall be submitted in
accordance with the procedure set out in clause 1.7. Any Warrant not exercised
by the Holder before expiry of the period of two (2) weeks for giving notice
shall lapse automatically without further notice, consideration and/or
compensation to the Holder at the time when the resolution to dissolve the
Company takes legal effect.
Demerger
Where, during the time until the exercise of the issued Warrants, the Company
resolves to demerge the Company, the Company may, regardless of whether clauses
1.5 and 1.6 state otherwise, decide to
move forward the vesting and exercise date of the relevant Warrants by
submitting a written notice to the Holder giving him/her a period of two (2)
weeks to exercise the relevant Warrants before the resolution to demerge takes
legal effect. The Holder's Exercise Notice shall be submitted in accordance with
the procedure set out in clause 1.7. Any Warrant not exercised by the Holder
before expiry of the period of two (2) weeks for giving notice shall lapse
automatically without further notice, consideration and/or compensation to the
Holder at the time when the resolution to demerge takes legal effect; or
The Holder shall be entitled to conclude a new agreement on receiving Warrants
of a corresponding value in the legal unit in which the Holder is employed after
the demerger.
Asset sale
Where, during the time until the exercise of the issued Warrants, the Company or
a significant part of the Company's business and assets (not including the sale
of individual portfolio companies, regardless of size) are sold to a third party
("Asset Sale") the Company is entitled and required, regardless of whether
clauses 1.5 and 1.6 state otherwise, to move forward the vesting and exercise
date of such Warrants by notifying the Holder in writing that he/she should
exercise the relevant Warrants within two (2) weeks. The notice shall be
submitted to the Holder within three (3) months of completion of the Asset Sale.
The Holder's Exercise Notice shall be submitted in accordance with the procedure
set out in clause 1.7. Any Warrant not exercised by the Holder before expiry of
the period of two (2) weeks for giving notice shall lapse automatically without
further notice and/or compensation to the Holder.
Controlling influence
Where, during the time until the exercise of the issued Warrants, a shareholder
in the Company obtains a controlling influence in the Company as defined in
section 31(1) of the Danish Securities Trading Act (individually or together
with one or more entities controlling, controlled by or jointly controlled with
such shareholder) (“Change of Ownership”), the Company is entitled and required,
regardless of whether clauses 1.5 and 1.6 state otherwise, to move forward the
vesting and exercise date of such Warrants by notifying the Holder in writing
that he/she should exercise the relevant Warrant within two (2) weeks. The
notice shall be submitted to the Holder within three (3) months of completion of
the Change of Ownership. The Holder's Exercise Notice shall be submitted in
accordance with the procedure set out in clause 1.7. Any Warrant not exercised
by the Holder before expiry of the period of two (2) weeks for giving notice
shall lapse automatically without further notice, consideration and/or
compensation to the Holder.
Delisting
Where the Company's shares are listed on a stock exchange, a subsequent
delisting of the Company during the time until the exercise of the issued
Warrants, regardless of whether clauses 1.5 and 1.6 state otherwise, shall give
the Company a right and an obligation, to move forward the vesting and exercise
date of the Warrants by notifying the Holder in writing that he/she should
exercise the relevant Warrants within two (2) weeks. The notice shall be
submitted to the Holder within three (3) months of completion of the delisting.
The Holder's Exercise Notice shall be submitted in accordance with the procedure
set out in clause 1.7. Any Warrant not exercised by the Holder before expiry of
the period of two (2) weeks for giving notice shall lapse automatically without
further notice, consideration and/or compensation to the Holder.
Expiry of employment
Where the Holder terminates his/her employment or where the Company dismisses
the Holder, all the Holder's non-exercised Warrants not vested for exercise in
accordance with clause 1.5, shall lapse auomatically.
However, this does not apply in the following cases:
the employment is terminated because the Holder (a) reaches the age of
retirement fixed by the Company from time to time or (b) becomes entitled to old
age pension (in Danish “Folkepension”), or
the employment expires due to the death of the Holder, or
the Holder terminates the employment as a consequence of the Company's serious
breach of the contractual obligations, or
as a result of the Company's dismissal of the Holder, without such dismissal
being due to the Holder's breach of his or her contractual obligations
Vested but not yet exercised Warrants shall not lapse in case of the expiry of
the Holder's employment.
Auditor's report on adjustment
Where the Company resolves to implement any of the changes set out in clauses
1.8.1, 1.8.2 and 1.10, respectively, the Company's Supervisory Board shall
request a report from the Company's auditor of (a) whether an adjustment of the
Exercise Price and/or the number of shares that can be subscribed for pursuant
to the issued Warrants is required pursuant to such provisions, and (b) if such
provision prescribes adjustment, the nature and extent of such adjustment.
Immediately upon receipt of the auditor's report the Company shall deliver a
copy thereof to the Holder. The conclusion of the auditor's report shall be
binding on the Company and the Holder and may not be the subject of objections
or dispute, including without limitation, according to any agreed arbitration.
Negotiability
The issued Warrants shall be non-negotiable instruments.
The issued Warrants are personal and cannot be transferred or provided as
security or otherwise be made the subject of execution. However, the issued
Warrants may be left by inheritance.
Lapse
An issued Warrant shall lapse automatically immediately after the expiry of the
first Exercise Period after 36 months from the first day of the calendar month
following the date of issuance of the relevant Warrant, without further notice,
consideration or compensation to the Holder.
Terms of the shares
The following terms shall apply to subscription for shares in connection with
the exercise of the issued Warrants:
The Company's shareholders shall have no pre-emption rights to shares subscribed
for by the exercise of Warrants.
The subscription amount must be paid in cash by the Holder of the issued
Warrants within five (5) days of notification to the Company of exercise. The
subscription amount may either be paid in cash, by cheque made out to the
Company or by electronic transfer. In the event of the Holder's default in
paying the subscription amount, the Exercise Notice shall lapse and shall be
deemed not to have been submitted by the Holder.
The following terms shall apply to shares issued in connection with the exercise
of issued Warrants:
The shares shall be issued in denominations of DKK 1.00 each or multiples
thereof;
The shares shall not belong to a particular class of shares;
The shares shall be issued to named holders and shall be registered by name in
the Company's Register of Shareholders;
The shares shall be negotiable instruments;
The shares shall carry the right to receive dividends and other rights in the
Company as from the date of the registration of the capital increase with the
Danish Commerce and Companies Agency; and
The same other rights and obligations shall apply to the Shares as are
determined in the Company's Articles of Association
In case of an adjustment of the Exercise price and/or the number of shares that
can be subscribed for pursuant to the relevant Warrants, cf. clause 1.8 and/or a
change of the Company's Articles of Association prior to the exercise of a
Warrant, any such changed rights and obligations shall apply to the relevant
Warrant and for all shares subscribed for in connection with the exercise of
such a Warrant.
Lockup
Shares issued in connection with the exercise of issued Warrants can not be
sold, offered to or in any other way be assigned directly or indirectly without
the prior written consent of the Company's financial advisors for a period of
twelve (12) months calculated from the first day of trading in connection with
listing on the Copenhagen Stock Exchange (lockup).
Terms of 303,503 Warrants
The provisions of clause 1 above shall apply correspondingly, besides the
provisions in clause 1.14, which shall be replaced by the following:
1.14 Removal as chairman of the Supervisory Board
Where the Holder voluntarily retires as chairman of the Company's Supervisory
Board or the Holder is removed as chairman of the Company's Supervisory Board,
regardless of the reason hereof, all the Holder's non-exercised Warrants not
vested for exercise in accordance with clause 1.5, shall lapse automatically.
Vested but not yet exercised Warrants shall not lapse in case of the Holder
ceasing as chairman of the Company's Supervisory Board.
*****
For additional information please contact
Lars Kongsbak, CEO, tel +45 4566 0888 or +45 4090 2101
Hans Henrik Chrois Christensen, CFO +45 4565 0953 or +45 4090 2131
Exiqon is a biotechnology company engaged in the development, manufacture and
marketing of products for genetic analysis.
Exiqon is witnessing strong growth and is one of the innovative leaders in the
segments we have selected. We sell our products to a rapidly growing number of
scientists in the pharmaceutical industry and in research laboratories around
the world. These products include reagents and kits which in a precise and
sensitive manner translate the information in the genes into the answers sought
by the scientists and the industry.
Exiqon's products build on the company's patented Locked Nucleic Acid (LNA™)
technology. We expect to further develop our existing products and technologies
so that we can deliver future solutions to important challenges in the field of
molecular diagnostics.
Exiqon's products are marketed through its own sales organisation and trough
license and distribution agreements with recognised partners, including Roche
Diagnostics and Luminex