Notice of Extraordinary General Meeting in Aerocrine

Transcription

1 Notice of Extraordinary General Meeting in Aerocrine An extraordinary general meeting ( EGM ) in Aerocrine AB will be held on Wednesday January 7, 2015, 9.00 a.m. CET at Mannheimer Swartling Advokatbyrå, Norrlandsgatan 21, Stockholm, Sweden. Right to attend and notice of attendance Shareholders who wish to attend the EGM must be recorded in the share register maintained by Euroclear Sweden AB on Tuesday December 30, 2014 and notify the company of their intention to attend by no later than Friday January 2, 2015, preferably before 3.00 p.m. CET. Notice of attendance is made in writing to Aerocrine AB, P.O. Box 1024, Solna, Sweden, or by phone , or by info@aerocrine.com. The notice of attendance shall include the name, personal or corporate ID number, address and phone number. The same dates, addresses, etc. apply for notifying the company of the number of any accompanying advisors. Powers of attorneys, certificates of incorporation and other documents of authorization must be presented at the EGM, but should preferably be sent to the company in connection with the notice of attendance. Power of attorneys must be presented in original and shall not be older than one year, provided that the power of attorney does not state a longer period of validity (maximum 5 years). A proxy form is available on the company s website, and may also be ordered from the company at the above address. Shareholders whose shares are registered in the name of a nominee must, in order to be entitled to attend the EGM, request that the nominee re-register their shares in the name of the shareholder, so that the shareholder is recorded in the share register on Tuesday December 30, Such registration may be temporary. Proposed agenda LEGAL# v12 1. Opening of the meeting 2. Election of the chairman of the meeting 3. Preparation and approval of the voting list 4. Approval of the agenda 5. Election of one or two persons approving the minutes 6. Determination of whether the meeting has been duly convened 7. Resolution on an amendment of the articles of association 8. Approval of the board s resolution on a rights issue 9. Closing of the meeting

2 2(6) Item 7 Resolution on an amendment of the articles of association With reference to the resolution by the board on a rights issue subject to approval by the general meeting, the board proposes that the EGM resolves on an amendment of the articles of association as regards the limits of the company s share capital and number of shares ( 4 and 5), in accordance with the following: Current wording 4 The share capital shall be not less than SEK 50,000,000 and not more than SEK 200,000, The number of shares shall be not less than 100,000,000 and not more than 400,000,000. Proposed wording 4 The share capital shall be not less than SEK 100,000,000 and not more than SEK 400,000, The number of shares shall be not less than 200,000,000 and not more than 800,000,000. The proposal is conditional upon the implementation of the rights issue in accordance with item 8 below. The resolution by the EGM pursuant to the proposal above must be supported by shareholders representing at least two-thirds of both the votes cast and the shares represented at the EGM in order to be valid. Item 8 Approval of the board s resolution on a rights issue The board proposes that the EGM approves the resolution by the board on November 27, 2014 on a rights issue of approximately MSEK 445 in total on the following terms: 1. The company s share capital shall be increased by not more than SEK 271,360, A maximum number of 542,721,067 shares shall be issued. 3. The subscription price shall be SEK 0.82 for each new share. 4. The company s shareholders shall have pre-emptive rights to subscribe for the new shares in proportion to the shares previously owned. Each existing share entitles to seven (7) subscription rights. Two (2) subscription rights entitle to subscription for one (1) new share. 5. The record date for entitlement to participate in the rights issue with preemptive right shall be January 12, If not all of the shares are subscribed for by exercise of subscription rights, the board shall resolve on allotment of shares subscribed for without the exercise of subscription rights up to the maximum amount of the share issue. In such case, priority will be given in the following order:

3 3(6) (i) (ii) Arbejdsmarkedets Tillægspension ( ATP ) up to an amount corresponding to MUSD 15 (approx. MSEK 110) (out of ATP s total undertaking amounting to MUSD 20 (approx. MSEK 150), however so that the shareholding of ATP following completion of the rights issue shall be less than 19.9 per cent of the total number of shares). Novo A/S ( Novo ) up to a total shareholding of 29.9 per cent of the total number of shares after the rights issue, however subject to a maximum total commitment of MUSD 25 (approx. MSEK 185) (including payment for shares subscribed for with subscription rights). (iii) The Third Swedish National Pension Fund up to a total shareholding of 4.9 per cent of the total number of shares after the rights issue, however subject to a maximum total commitment of MUSD 3 (approx. MSEK 20) (including payment for shares subscribed for with subscription rights). (iv) Others (v) (A) (B) (C) those who have subscribed for shares by the exercise of subscription rights, irrespective of whether they were shareholders on the record date or not, pro rata in relation to the number of subscription rights exercised, those who have applied for subscription of shares without the exercise of subscription rights, pro rata in relation to such declared interest, other underwriters on a pro rata basis in relation to their undertakings. ATP up to a total shareholding of 19.9 per cent of the total number of shares after the rights issue, however subject to a maximum total commitment of MUSD 20 (approx. MSEK 150). (vi) Novo up to a total shareholding of 39.9 per cent of the total number of shares after the rights issue, however subject to a maximum total commitment of MUSD 25 (approx. MSEK 185) (including payment for shares subscribed for with subscription rights). 7. New shares may be subscribed for during the period as from, and including, January 14, 2015 until, and including, January 28, 2015, or, as regards the underwriters of the rights issue, until, and including, January 30, Subscription by the exercise of subscription rights shall be made through simultaneous cash payment or, if the board deems that this may not be done for practical or administrative reasons, through subscription on a separate subscription list. Subscription without subscription rights shall be made on a separate subscription list and be paid in cash within three (3) banking days of the dispatch of information on allotment to the subscriber. 9. The new shares shall entitle to dividend as from the first record date for dividend to occur after the registration of the new share issue with the Swedish Companies Registration Office.

4 4(6) The board, or whomever the board may appoint, shall be authorized to make such minor adjustments to the above resolution as may prove necessary in connection with the registration with the Swedish Companies Registration Office and Euroclear Sweden AB. The rights issue requires an amendment of the articles of association. In order to secure the rights issue, the company has entered into a so-called underwriting agreement (the Agreement ) with, among others, Novo. Under the Agreement, Novo undertakes (i) to subscribe for new shares in relation to the number of shares previously held by Novo (its pro rata portion) (i.e., a subscription undertaking), and (ii) to subscribe for additional new shares (i.e., a guarantee undertaking) (the Guarantee ). The Agreement is conditional, among other things, upon Novo being granted an exemption from a potential mandatory bid obligation that may arise under the rules of the Swedish Takeover Act (2006:451) (both in respect of the subscription undertaking and the Guarantee), and that any conditions attached to such exemption are met. Novo s total commitment to subscribe for new shares in the rights issue under the Agreement corresponds to an amount equivalent of USD 25 million (approx. MSEK 185). However, Novo subscribing for shares under the Agreement may not result in Novo holding more than at the most 39.9 per cent of the total number of shares and votes in the company after the rights issue. ATP has acceded the Agreement and undertaken to subscribe and pay for shares not subscribed for by exercise of subscription rights, in an amount that corresponds to the equivalent of USD 20 million (approx. MSEK 150), however, not more than the number of shares that corresponds to a holding of 19.9 per cent of the total number of shares and votes in the company after the rights issue. If the conditions of the Agreement are not met, Novo s and ATP s respective obligations under the Agreement to subscribe for new shares in the rights issue will lapse. On December 2, 2014, the Swedish Securities Council (the SSC ) granted Novo an exemption from any mandatory bid obligation that may arise from the fulfilment of Novo s subscription undertaking without specific conditions. The SSC also granted Novo an exemption from any mandatory bid obligation that may arise from Novo s fulfilment of the Guarantee, however, subject to certain conditions that are customary for this type of exemption. In order for the latter exemption to be valid and the mandatory bid obligation not to be triggered if allotment of shares to Novo pursuant to the Agreement would result in Novo s holding of shares amounting to at least 30 per cent of the total number of votes in the company, the resolution must be supported by shareholders representing at least two thirds of both the number of votes cast and the shares represented at the EGM, disregarding the shares held by and represented by Novo at the EGM in the count. Shares held and represented by Novo at the EGM are only to be disregarded in the matter of fulfilling the conditions for the exemption as regards the Guarantee (and accordingly the allotment of shares pursuant to said Guarantee). In other aspects, shares held by Novo shall be taken into account when calculating whether the resolution under this item 8 has been supported by the requisite majority. Should the EGM not support the conditions laid down by the SSC with the

5 5(6) requisite majority, Novo s and ATP s obligations under the Agreement to subscribe for new shares will lapse (irrespective of whether the obligation follows from the subscription undertaking or the Guarantee). The same applies for an underwriting agreement entered into with the Third Swedish National Pension Fund. Neither Novo, ATP nor the Third Swedish National Pension Fund have requested or will receive any compensation under the agreements. Documents, etc. The board of directors proposal and resolution as well as the documents prepared in accordance with Chapter 13, Section 6, of the Swedish Companies Act will be held available at the company s premises and on the company s website ( no later than three weeks prior to the EGM. The documents will be sent by post to those shareholders who so request and state their postal address and will also be available at the EGM. Upon request by a shareholder and where the board of directors believes that it can be done without significant harm to the company, the board of directors and the CEO will at the EGM provide information on circumstances which may affect the assessment of a matter on the agenda and on the company s relation to other group companies. There are 155,063,162 shares and votes in the company as at the issuance of this notice. Solna in December 2014 Aerocrine AB (publ) The board of directors For more information please contact any of the following individuals: Scott Myers, Chief Executive Officer, Aerocrine AB, , Marshall Woodworth, Chief Financial Officer, Aerocrine AB, , About Aerocrine Aerocrine AB is a medical technology company focused on the improved management and care of patients with inflammatory airway diseases. As the pioneer and leader in technology to monitor and manage airway inflammation, Aerocrine markets NIOX

6 6(6) MINO and NIOX VERO (EU). Both products enable fast and reliable management of airway inflammation and may therefore play a critical role in more effective diagnosis, treatment and follow-up of patients with inflammatory airway diseases such as asthma. Aerocrine is based in Sweden with subsidiaries in the U.S., Germany, Switzerland and the U.K. Aerocrine shares were listed on the Stockholm Stock Exchange in For more information, please visit and Aerocrine is required to disclose the information provided herein pursuant to the Securities Markets Act and/or the Financial Instruments Trading Act. The information was submitted for publication at 10:30 p.m. on December 2, 2014 This is an unofficial translation from the Swedish original. In case of any discrepancies between the Swedish and English language versions, the Swedish version shall prevail.