Indicate by check mark whether the registrant files or will
file annual reports under cover of Form 20-F or Form 40-F.
Indicate by check mark if the registrant is submitting the Form
6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ____
Indicate by check mark if the registrant is submitting the Form
6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ____
SIGNATURES
Pursuant to the requirements of the Securities Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: June 12, 2019
EDAP TMS S.A.
/s/ FRANCOIS DIETSCH
FRANCOIS DIETSCH
CHIEF FINANCIAL OFFICER
Dear EDAP Shareholders,
Our
fiscal 2018 was an exciting and very significant year in the evolution of our company, highlighted by FDA approval of our Focal
One HIFU (High Intensity Focused Ultrasound) device in the U.S. in June. Notwithstanding a lengthy sales cycle for hospital capital
equipment, we quickly established significant sales momentum in the U.S. six months after approval, which is being confirmed in
early 2019. This trend clearly shows the high level of interest and motivation that reference centers managing prostate disease
have in our latest HIFU technology. At the same time, we continued to prospect and work on our network to build and increase our
pipeline with the goal of placing more machines around the country but also to expand our international presence in key markets.
Our
UDS division, which includes both our Lithotripsy and Distribution business, also grew in 2018 and more specifically in markets
where we combine our proprietary technologies with complementing devices such as lasers and urodynamic equipment. We see many synergies
with this approach and it shows the strength of our direct sales network in key markets in Europe and Asia.
Overall,
we recorded a solid global revenue growth of almost 10% in 2018, bringing our total revenues to a record 39.2 million Euros. This
is the fifth consecutive year of growth for EDAP.
Based
on the FDA clearing HIFU as a tool to ablate prostate tissue, and based on the vision of more and more surgeons that energy-based
technologies represent the future of surgical tool, we remain focused on continued development of this exciting technology. HIFU
is the most advanced ablation technology available. Based on our unique and vast experience and expertise in treating more than
50,000 prostate cancer patients with HIFU, we are working to expand HIFU beyond prostate with our long-term vision of developing
a HIFU platform to serve multiple soft tissue ablation indications. To that end, the two main milestones that we are pursuing in
2019 are the initiation of our phase 2 multi-center clinical study for the treatment of rectal endometriosis using our Focal One
device and the possible initiation of our phase 2 study for the treatment of liver metastasis using our per-operative HIFU prototype
probe.
We
are in a very exciting time in the life cycle of our technology. HIFU has now proven via its prostate tissue ablation capability
that it has potential in a number of development programs aimed at expanding the utility of HIFU to many different indications
and uses. Our team here at EDAP is dedicated and focused on making this happen in the near future and we believe we are well positioned
to deliver long-term value to our shareholders while offering superior outcomes to patients.
In this context, we
are pleased to convene our shareholders in an General Meeting on June 28, 2019 and would like to take this opportunity to request
your support for the attached resolutions, as detailed in the enclosed Board report. You will be requested to vote for resolutions
submitted to (i) the Ordinary General Meeting of Shareholders and to the (ii) Extraordinary General Meeting of Shareholders.
Resolutions submitted
to the (i)
Ordinary General Meeting
-
Resolutions 1 to 4,
include approval of the Company’s 2018
fiscal year accounts, related corporate activity approvals. We invite you to read the Company’s Form 20-F Report relating
to the 2018 fiscal year available on the Company’s website www.edap-tms.com, Investor Relations section.
Resolutions submitted
to the (ii)
Extraordinary General Meeting
-
Resolutions 5 to 11
, allow us to propose resolutions that
would provide the Company with the necessary legal frame to address potential strategic moves and strengthen its long-term growth,
in accordance with French and international standards and in the interest of the Company. In addition, in view of motivating EDAP’s
teams to perform and deliver in our strategic expansions in the U.S. and internationally.
Resolution 12 to 15
of
the Extraordinary General Meeting allow the Board to create an incentive stock option program for some selected high performance
employees of EDAP.
As always, the use
of these delegations, if at all, will be done in light of the ultimate interest of the Company and its Shareholders.
We would like to thank
our shareholders and investors for your continued support, commitment and confidence you have demonstrated in EDAP’s long-term
success.
Sincerely,
/s/ Philippe Chauveau
Chairman of the Board
EDAP TMS S.A.
June 3
rd
, 2019
This letter may contain forward-looking
statements. Such statements are based on management's current expectations and are subject to a number of risks and uncertainties,
including matters not yet known to not currently considered material or us by us, and there can be no assurance that anticipated
events will occur or that the objectives set out will actually be achieved. Important factors that could cause actual results to
differ materially from the results anticipated in the forward-looking statements include, among others, the clinical status and
market acceptance of our HIFU devices and the continued market potential for our lithotripsy device. Factors that may cause such
a difference also may include, but are not limited to, those described in the Company's filings with the Securities and Exchange
Commission and in particular, in the sections "Cautionary Statement on Forward-Looking Information" and "Risk Factors"
in the Company's Annual Report on Form 20-F.
This
is a free translation from the French language and is supplied solely for information purposes. Only the original version in French
language has legal force.
EDAP
TMS S.A.
A corporation
with a share capital of 3,817,891.22 euros
Registered
office: Parc d’activité La Poudrette Lamartine
4, rue
du Dauphiné - 69120 Vaulx en Velin, France
Lyon Registry
of Commerce 316 488 204
Vaulx-en-Velin,
June 3, 2019
NOTICE
On Friday June 28, 2019, the shareholders
are convened to attend an Ordinary and Extraordinary General Meeting of the shareholders of EDAP TMS S.A., to be held:
at 10:30
am,
at EDAP
TMS’s headquarters
4, rue
du Dauphiné,
69120
Vaulx-en-Velin, France
to consider the following
agenda:
AGENDA OF THE ORDINARY ANNUAL SHAREHOLDERS MEETING:
|
1.
|
Reading of the special report of the Statutory Auditor on the
agreements referred to in article L.225-38 of the French Commercial Code; approval of the agreements as mentioned in the report;
|
|
2.
|
Reading of the Board of Directors' management report of the Company
relating to the fiscal year ended December 31, 2018; reading of the report on Corporate Governance; reading of the Board of Directors'
special report pursuant to Article L.225-184, paragraph 1 of the French Commercial Code; reading of the Statutory Auditor's reports
relating to the annual accounts for the fiscal year ended December 31, 2018 and the consolidated financial statements (US GAAP)
in accordance with US accounting standards; approval of the statutory accounts and of the consolidated financial statements for
the fiscal year ended December 31, 2018 and granting of a discharge to the members of the Board of Directors for their management;
|
|
3.
|
Allocation of the result for the fiscal year ended December 31,
2018;
|
|
4.
|
Determination of attendance fees to the Board of Directors.
|
AGENDA
OF THE EXTRAORDINARY SHAREHOLDERS MEETING:
|
5.
|
Determination of the total maximum amount applicable to the financial
delegations of authority granted to the Board of Directors to increase the share capital;
|
|
6.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital or
giving rights to debt securities issued by the Company, with preferential subscription rights for shareholders;
|
|
7.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital or
giving rights to debt securities issued by the Company, with cancellation of shareholders’ preferential subscription rights,
by means of a public offering;
|
|
8.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights, in favor of a first category of persons who meet certain
specified characteristics;
|
|
9.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights, in favor of a second category of persons who meet certain
specified characteristics;
|
|
10.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights, in favor of the following category : directors and officers
of the company held at the office the date of issue of the shares or the securities and individuals tied to the Company by an employment
contract the date of the issue of the shares or the securities;
|
|
11.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights as part of an offer in favor of qualified investors (
investisseurs
qualifiés
) or a limited circle of investors (
cercle restreint d’investisseurs
) as mentioned in II of article
L.411-2 of the French Monetary and Financial Code;
|
|
12.
|
Authorization to be granted to the Board of Directors to grant
options to subscribe for shares of the Company pursuant to the provisions of articles L.225-177 et seq of the French commercial
code;
|
|
13.
|
Authorization to be granted to the Board of Directors to grant
options to purchase shares of the Company pursuant to the provisions of articles L.225-177 et seq of the French commercial code;
|
|
14.
|
Delegation of authority to allow the Board of Directors to increase
the share capital by issuance of shares or other securities giving access to the Company’s share capital, with cancellation
of shareholders’ preferential subscription rights in favor of participants in the Company’s employee savings plan;
|
|
15.
|
Determination of the total maximum amount applicable to the delegations
of authority granted to the Board of Directors to increase the share capital as mentioned at the resolutions 12 and 14.
|
Note:
As
per Depositary Agreement dated July 31, 1997 and amendment dated April 7, 2008, signed between Bank of New York Mellon (the “Depositary”)
and the Company, if no voting Instruction is received by the Depositary from a Holder with respect to any of the Securities represented
by American Depositary Shares (“ADSs”) on or before the Receipt Date (Record Date), or if the voting Instruction is
improperly completed or blank, or if the voting instructions are illegible or unclear, such Holder of ADSs shall be deemed to have
instructed the Depositary to vote such ADSs and the Depositary shall vote such ADSs in favor of any resolution proposed or approved
by the Board of Directors of the Company and against any resolution not so proposed or approved.
This
is a free translation from the French language and is supplied solely for information purposes. Only the original version in French
language has legal force.
EDAP
TMS S.A.
A corporation
with a share capital of 3,817,891.22 euros
Registered
office: Parc d’activité La Poudrette Lamartine
4, rue
du Dauphiné - 69120 Vaulx en Velin, France
Lyon Registry
of Commerce 316 488 204
Report
of the Board of Directors to the Ordinary and Extraordinary
General
Meeting of June 28, 2019
Ladies
and Gentlemen,
We have
called this ordinary and extraordinary shareholders’ meeting to vote on the following agenda:
AGENDA
OF THE ORDINARY ANNUAL SHAREHOLDERS MEETING:
|
1.
|
Reading of the special report of the statutory auditor on the
agreements referred to in article L.225-38 of the French Commercial Code; approval of the agreements as mentioned in the report;
|
|
2.
|
Reading of the Board of Directors' management report of the Company
relating to the fiscal year ended December 31, 2018; reading of the report on corporate governance; reading of the Board of Directors'
special report pursuant to Article L.225-184, paragraph 1 of the French Commercial Code; reading of the statutory auditor’s
reports relating to the annual accounts for the fiscal year ended December 31, 2018 and the consolidated financial statements (US
GAAP) in accordance with US accounting standards; approval of the statutory accounts and of the consolidated financial statements
for the fiscal year ended December 31, 2018 and granting of a discharge to the members of the Board of Directors for their management;
|
|
3.
|
Allocation of the result for the fiscal year ended December 31,
2018;
|
|
4.
|
Determination of attendance fees to the Board of Directors.
|
AGENDA
OF THE EXTRAORDINARY SHAREHOLDERS MEETING:
|
5.
|
Determination of the total maximum amount applicable to the financial
delegations of authority granted to the Board of Directors to increase the share capital;
|
|
6.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital or
giving rights to debt securities issued by the Company, with preferential subscription rights for shareholders;
|
|
7.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital or
giving rights to debt securities issued by the Company, with cancellation of shareholders’ preferential subscription rights,
by means of a public offering;
|
|
8.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights, in favor of a first category of persons who meet certain
specified characteristics;
|
|
9.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights, in favor of a second category of persons who meet certain
specified characteristics;
|
|
10.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights, in favor of the following category : directors and officers
of the Company held at the office the date of issue of the shares or the securities and individuals tied to the Company by an employment
contract the date of the issue of the shares or the securities;
|
|
11.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights as part of an offer in favor of qualified investors (
investisseurs
qualifiés
) or a limited circle of investors (
cercle restreint d’investisseurs
) as mentioned in II of article
L.411-2 of the French Monetary and Financial Code;
|
|
12.
|
Authorization to be granted to the Board of Directors to grant
options to subscribe for shares of the Company pursuant to the provisions of articles L.225-177 et seq of the French commercial
code;
|
|
13.
|
Authorization to be granted to the Board of Directors to grant
options to purchase shares of the Company pursuant to the provisions of articles L.225-177 et seq of the French commercial code;
|
|
14.
|
Delegation of authority to allow the Board of Directors to increase
the share capital by issuance of shares or other securities giving access to the Company’s share capital, with cancellation
of shareholders’ preferential subscription rights in favor of participants in the Company’s employee savings plan;
|
|
15.
|
Determination of the total maximum amount applicable to the delegations
of authority granted to the Board of Directors to increase the share capital as mentioned at the resolutions 12 and 14.
|
|
A.
|
DECISIONS RELATING TO THE ORDINARY GENERAL SHAREHOLDERS’ MEETING
|
Management
report on the Company’s activity for the fiscal year ended December 31, 2018:
We invite you to read the Board of Directors’
management report available pursuant to French laws and regulations and the Company’s 2018 Annual Report on the 2018 consolidated
accounts, which is available on the Company’s website www.edap-tms.com, in the “Investor Relations” section.
With respect to the Company’s activities
since the beginning of the current fiscal year, we also invite you to read the Board of Directors’ management report which
also provides information relating to significant events that occurred since the beginning of the current financial year (
resolutions
1 to 4
).
|
B.
|
DECISIONS RELATING TO THE EXTRAORDINARY SHAREHOLDERS’ MEETING
|
Prior
to examining the various resolutions submitted to your approval, please find below a summary of the reasons that have led us to
call the extraordinary shareholders’ meeting.
In
accordance with French and international standards and in the interest of the Company, in the view of its development, it seems
appropriate to us to suggest financial delegations to your Board of Directors (
resolutions 6 to 11
)
to implement share capital increases, immediately or in the future, with or without preferential subscription rights, in order
to meet any fundraising opportunities that may be necessary to finance the Company’s development.
In
order to motivate and reward the efforts of the teams working to ensure a successful development of our worldwide activities and
particularly in the United States, we propose that you grant the Board of Directors the necessary delegations of authority and
authorizations to grant options to subscribe and to purchase shares of the Company (
resolutions 12 and 13
).
Finally,
as part of the Company's employee profit-sharing policies, we submit to your Board of Directors a delegation of authority to carry
out a capital increase for the benefit of members of a company savings plan (
resolution 14
).
This Resolution is required under Article L.225-129-6 of the French Commercial Code. However, your Board of Directors reminds you
that, given the Company's structure, this proposal is not consistent with the Company’s profit sharing policies and therefore
the Board of Directors recommends
not
approving this Resolution.
The maximum
aggregate nominal amount of share capital increases that may be carried out pursuant to the delegations we propose you to grant
to your Board of Directors would be:
|
-
|
1,300,000 euros, i.e., a maximum number of shares of 10,000,000
with a nominal value of €0.13 each (
resolution 5
) in order to give
the Company all the flexibility it needs to finance its development plan (
financial delegations of resolutions 6 to
11
),
|
|
-
|
130,000 euros, i.e. a maximum number of shares of 1,000,000 shares
with a par value of 0.13 euros (
resolution 15
), in order to grant options
to subscribe shares of the Company.
|
To these
amounts must be added, if need be, the additional amount of the shares or securities to be further issued to preserve, as provided
by law and by any applicable contractual provision providing for other cases of adjustments, the rights of the holders of securities
giving access to share capital or other rights giving access to share capital.
The delegations
submitted for your approval will allow the Board of Directors, in accordance with the law and the articles of association, to have
full powers to implement these delegations for the purpose, without this list being exhaustive, of setting the dates, amounts,
conditions and terms of any issuance as well as the form and characteristics of the shares or securities giving access to the capital
or securities to be issued, with or without premium.
In the
event that the Board of Directors uses the delegations of authority granted to it pursuant to these resolutions, it shall report
to the next ordinary shareholders’ meeting on the use made by it of such delegations, in accordance with applicable laws
and regulations.
For each
of the delegations submitted to your approval, the reports established by the Company’s statutory auditor will be read to
you.
We propose
to hereinafter review each of the resolutions submitted to your approval in the extraordinary shareholders’ meeting:
B-1.
Financial delegations to be granted to the board of directors
Resolution 5
sets
the maximum aggregate nominal amount of the share capital increases that may be carried out and the debt securities that may be
issued pursuant to the financial delegations submitted to your vote at 1,300,000 euros, i.e., a maximum of 10,000,000 shares to
be issued with a nominal value of 0.13 euro each.
For the
purposes hereof, the Board of Directors asks you to approve the resolutions mentioned below, using the legal mechanism of delegation
of authority, and to delegate your authority to it in order to:
|
-
|
increase the share capital by issuance of shares or any securities giving access to the share
capital of the Company or giving a right to allocation of debt securities, with preservation of the Company’s shareholders'
preferential subscription rights (
resolution 6
)
|
|
-
|
increase the share capital by issuance of shares or any securities
giving access to the share capital of the Company or giving a right to debt securities, with cancellation of the Company’s
shareholders' preferential subscription rights, by means of a public offering (
resolution 7
)
|
|
-
|
increase the share capital by issuance of shares or any securities
giving access to the share capital, with cancellation of the shareholders' preferential subscription rights in favor of one category
of persons who meet certain specified characteristics (as described below in A. and B.), being specified that the issue price will
be at least equal to the average of the prices weighted by the volumes of the last 3 trading days on the NASDAQ market, preceding
the setting of the issue price, possibly reduced by a maximum discount of 30% (
resolution 8
).
|
Pursuant
to this
resolution 8,
you are asked to reserve subscription of such shares
to the new or existing investors who meet all of the criteria specified in A. or B. below, for a minimum individual subscription
amount of 250,000 euros (issuance premium included):
A.
|
(i)
|
institutional investors or individuals that are qualified institutional
buyers or accredited investors under U.S. law or qualified investors
(investisseurs qualifiés
) under French law (e.g.,
investment funds, investment companies, pension funds, banks and other financial institutions, insurance companies, etc.) ; and
|
|
(ii)
|
specialized in the health care or biotechnologies sectors or
specialized in investing in companies with high growth potential; and
|
|
(iii)
|
which are prepared to make an investment decision in respect
of the Company solely based on available public information, provided, however, that each prospective investor will be required
to enter into a confidentiality agreement regarding the proposed investment prior to any disclosure to it of the name of the Company;
or
|
|
B.
|
any placement agent or underwriter in connection with the offering
or the placement of shares or securities giving access to the Company’s share capital to investors meeting the criteria set
forth in A. above as part of the remuneration of said placement agents or underwrites institutions for their services.
|
|
-
|
increase the share capital by issuance of shares or any securities
giving access to the share capital, with cancellation of the shareholders' preferential subscription rights in favor of practitioners
using the Company’s technologies who meet certain specified characteristics, or commercial partners, or patients who have
benefited from treatments using technologies developed by the Company, with a maximum of 150 subscribers, with a minimum individual
subscription amount of 10,000 euros, being specified that the issue price will be at least equal to the average of the prices weighted
by the volumes of the last 3 trading days on the NASDAQ market, preceding the setting of the issue price, possibly reduced by a
maximum discount of 30% (
resolution 9
).
|
|
-
|
increase the share capital, by issuance of shares or other securities
giving access to the Company’s share capital, with cancellation of shareholders’ preferential subscription rights,
in favor of the following category : (i) directors and officers of the Company held at the office the date of issue of the shares
or the securities, or (ii) individuals tied to the Company by an employment contract the date of the issue of the shares or the
securities, being specified that issue price shall be set by the Board of Directors, by reference to :
|
|
·
|
the price of the last transaction on the Company’s share
capital carried out during the previous 6 months with an overpricing or discount of plus or minus 10 % compared to this price,
or
|
|
·
|
in the absence of any transaction on the share capital during
the previous 6 months, at the average of the prices weighted by the volumes of the last 3 trading days on the NASDAQ market, preceding
the fixing of the issue price, possibly reduced by a 30% discount.
|
In
any event, the price determined by the Board of Directors may represent a discount compared to the price of the American Depositary
Shares of the Company listed on the NASDAQ stock market (
resolution 10
)
|
-
|
increase the share capital, by issuance of shares or other securities
giving access to the Company’s share capital, with cancellation of shareholders’ preferential subscription rights as
part of an offer in favor of qualified investors (
investisseurs qualifiés
) or a limited circle of investors (
cercle
restreint d’investisseurs
) as mentioned in II of article L.411-2 of the French Monetary and Financial Code, being specified
that the issue price will be at least equal to the average of the prices weighted by the volumes of the last 3 trading days on
the NASDAQ market, preceding the setting of the issue price, possibly reduced by a maximum discount of 5%, taking into account
if applicable, their dividend date, being specified that the issue price of any securities giving access to the share capital issued
pursuant to this delegation shall be such that the amount immediately received by the Company, plus any amount that may be received
by the Company during the option or the exercise of the said securities, i.e., for each share issued as a result of the issue of
such securities, at least equal to the aforementioned minimum amount (
resolution 11
).
|
B-2
Delegations
to be granted as per the company’s salary motivation policy for employees and management
The Board
of Directors proposes to hereinafter review each of the resolutions submitted to your approval in the extraordinary shareholders’
meeting and to:
|
1.
|
Authorize the Board of Directors
to grant options to subscribe to a maximum of 1,000,000 new shares
with a nominal value of 0.13
euro each
(
resolution 12
). The exercise
price of each option for the subscription of shares shall be set by the Board of Directors on the day of grant of such options,
|
|
(i)
|
For the options that will be granted to non U.S. tax residents,
the exercise price would be set by reference to the closing price of the American Depositary Shares of the Company listed on the
NASDAQ the day preceding the Board of Directors’ decision to grant the options and may not be lower than 95% of the average
trading price of the American Depositary Shares of the Company listed on the NASDAQ stock market calculated on the basis of the
last twenty (20) trading sessions before the grant of the said options, being specified that the capital increases that would be
carried out upon exercice of these options would be deducted from the overall limit set out in the
resolution 15
.
|
|
(ii)
|
For the options granted to U.S. tax residents, to be qualified
as Incentive Stock Options “ISOs”, they will need to meet certain criteria in the resolution submitted to your vote,
and in particular:
|
|
·
|
All employees are eligible for grants under this option plan.
The beneficiaries of the plan will be determined by the Board of Directors, subject to the approval of this resolution by the shareholders;
|
|
·
|
The exercise price of the ISOs may not be less than the fair
market value of the shares on the date of grant, i.e., the price of the American Depositary Shares of the Company listed on the
NASDAQ stock market at the end of the trading day just prior to the decision of the Board of Directors to grant the options;
|
|
·
|
The options to subscribe shares are exercisable for up to ten
years from the date of grant, which term is decreased to 5 years if the employee, on the date of grant, holds more than 10% of
the share capital of the Company.
|
|
2.
|
Authorize the Board of Directors to grant options to purchase
a maximum of 358,528 existing shares with a nominal value of 0.13 euro each (
resolution 13
),
being specified that in order to satisfy the exercise of such options, the Board of Directors would be authorized to use the existing
shares that the Company already holds from a previous acquisition which aimed to allocate them to employees and corporate officers
and for which the said options can no longer be exercised,
|
(i)
These options are only available to non U.S. tax residents,
(ii)
For the options that would be granted to non U.S. tax residents : the exercise price would be set by reference to the price
of the American Depositary Shares of the Company listed on the NASDAQ stock market on the day preceding the Board of Directors’
decision to grant these options, without being less than :
|
·
|
95% of the average price of the American Depositary Shares of
the Company listed on the NASDAQ stock market on the basis of the last twenty (20) trading sessions before the grant of the said
options; and
|
|
·
|
95% of the average purchase price of the shares purchased by
the Company for allocation to employees or corporate officers.
|
|
3.
|
Delegate to the Board of Directors all necessary powers to increase
the share capital, it being specified that the maximum nominal value of the capital increases that may be carried out pursuant
to delegations given by the resolutions 12 and 14 is set at €130,000, representing a maximum of 1,000,000 new shares of the
Company each with a par value of €0.13 (
resolution 15
).
|
|
4.
|
Give to the Board of Directors all necessary powers to increase
the share capital by a maximum nominal amount of €50,000 (fifty thousand), through the issuance of shares or other securities
giving access to the Company’s share capital, with cancellation of shareholders’ preferential subscription rights,
for members of the Company’s employee savings plan (
resolution 14
).
|
This
resolution is required under Article L.225-129-6 of the French Commercial Code (
Code de commerce)
.
This
resolution, which is required to be proposed to the shareholders under French law, is not consistent with the Company’s profit
sharing policies and therefore the
Board of Directors recommends NOT approving resolution 14.
We
ask you, after reading the reports presented by the Company's statutory auditor, to adopt the resolutions submitted by the Board
of Directors, with the exception of resolution 14.
In
this context, we ask you to vote on the aforementioned resolutions submitted to you by your Board of Directors.
The
Board of Directors
We
draw your attention to the fact that this report, and the draft resolutions referred to therein, which will be submitted for your
approval, do not constitute an offer to purchase or a solicitation to purchase shares or any other securities of the Company.
EDAP
TMS S.A.
A corporation with a share
capital of 3,817,891.22 euros
Registered
office: Parc d’activité La Poudrette Lamartine
4, rue
du Dauphiné - 69120 Vaulx en Velin, France
Lyon Registry
of Commerce 316 488 204
DRAFT
RESOLUTIONS TO BE SUBMITTED
TO THE
ORDINARY AND EXTRAORDINARY SHAREHOLDERS MEETING'S HELD
ON JUNE
28, 2019
Shareholders
are invited to attend the ordinary and extraordinary general meeting of EDAP-TMS S.A. (the “
Company
”)
on June 28, 2019, at 10.30 am., at the Company’s offices, 4 Rue du Dauphiné, 69120, Vaulx-en-Velin, France. The shareholders
will deliberate on the following agenda:
AGENDA OF THE ORDINARY ANNUAL SHAREHOLDERS
MEETING:
|
1.
|
Reading of the special report of the statutory auditor on the
agreements referred to in article L.225-38 of the French Commercial Code; approval of the agreements as mentioned in the report;
|
|
2.
|
Reading of the Board of Directors' management report of the Company
relating to the fiscal year ended December 31, 2018; reading of the report on corporate governance; reading of the Board of Directors'
special report pursuant to Article L.225-184, paragraph 1 of the French Commercial Code; reading of the statutory auditor's reports
relating to the annual accounts for the fiscal year ended December 31, 2018 and the consolidated financial statements (US GAAP)
in accordance with US accounting standards; approval of the statutory accounts and of the consolidated financial statements for
the fiscal year ended December 31, 2018 and granting of a discharge to the members of the Board of Directors for their management;
|
|
3.
|
Allocation of the result for the fiscal year ended December 31,
2018;
|
|
4.
|
Determination of attendance fees to the Board of Directors.
|
AGENDA OF THE EXTRAORDINARY SHAREHOLDERS
MEETING:
|
5.
|
Determination of the total maximum amount applicable to the financial
delegations of authority granted to the Board of Directors to increase the share capital;
|
|
6.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital or
giving rights to debt securities issued by the Company, with preferential subscription rights for shareholders;
|
|
7.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital or
giving rights to debt securities issued by the Company, with cancellation of shareholders’ preferential subscription rights,
by means of a public offering;
|
|
8.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights, in favor of a first category of persons who meet certain
specified characteristics;
|
|
9.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights, in favor of a second category of persons who meet certain
specified characteristics;
|
|
10.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights, in favor of the following category : directors and officers
of the Company held at the office the date of issue of the shares or the securities and individuals tied to the Company by an employment
contract the date of the issue of the shares or the securities;
|
|
11.
|
Delegation of authority to be granted to the Board of Directors
to increase the share capital, by issuance of shares or other securities giving access to the Company’s share capital, with
cancellation of shareholders’ preferential subscription rights as part of an offer in favor of qualified investors (
investisseurs
qualifiés
) or a limited circle of investors (
cercle restreint d’investisseurs
) as mentioned in II of article
L.411-2 of the French Monetary and Financial Code;
|
|
12.
|
Authorization to be granted to the Board of Directors to grant
options to subscribe for shares of the Company pursuant to the provisions of articles L.225-177 et seq of the French commercial
code;
|
|
13.
|
Authorization to be granted to the Board of Directors to grant
options to purchase shares of the Company pursuant to the provisions of articles L.225-177 et seq of the French commercial code;
|
|
14.
|
Delegation of authority to allow the Board of Directors to increase
the share capital by issuance of shares or other securities giving access to the Company’s share capital, with cancellation
of shareholders’ preferential subscription rights in favor of participants in the Company’s employee savings plan;
|
|
15.
|
Determination of the total maximum amount applicable to the delegations
of authority granted to the Board of Directors to increase the share capital as mentioned at the resolutions 12 and 14.
|
*****
FIRST RESOLUTION
(Reading
of the special report of the statutory auditor on the agreements referred to in article L.225-38 of the French Commercial Code;
approval of the agreements as mentioned in the report)
After
hearing the statutory auditor's special report relating to the agreements referred to in article L.225-38 et seq of the French
Commercial Code (related party transactions), the general meeting approves the terms of this report, which states that there is
no related party transactions.
SECOND RESOLUTION
(Reading
of the Board of Directors' management report of the Company relating to the fiscal year ended December 31, 2018; reading of the
report on corporate governance; reading of the Board of Directors' special report pursuant to Article L.225-184, paragraph 1 of
the French Commercial Code; reading of the statutory auditor's reports relating to the annual accounts for the fiscal year ended
December 31, 2018 and the consolidated financial statements (US GAAP) in accordance with US accounting standards; approval of the
statutory accounts and of the consolidated financial statements for the fiscal year ended December 31, 2018 and granting of a discharge
to the members of the Board of Directors for their management)
The general
meeting, acting in accordance with the quorum and majority criteria required for ordinary shareholders meetings, and after having
been read:
|
-
|
the Board of Directors' report on the activity, the situation
and the financial statements of the Company relating to the fiscal year ended December 31, 2018,
|
|
-
|
the Board of Directors’ report on corporate governance
pursuant to Articles L.225-37 paragraph 6 and L.225-68 paragraph 6 of the French Commercial Code,
|
|
-
|
the Board of Directors' special report on stock-options pursuant
to Article L.225-184 paragraph 1 of the French Commercial Code,
|
|
-
|
the statutory auditor's general report relating to the annual
accounts relating to the fiscal year ended December 31, 2018,
|
|
-
|
the statutory auditor's report relating to the consolidated accounts
prepared in accordance with U.S. generally accepted accounting principles (US GAAP) applying to companies listed on the Nasdaq
market.
|
Approves
the annual accounts, i.e., the balance sheet, income statement and the related note as of and for the period ended December 31,
2018 as they have been presented, together with the transactions transcribed in the aforesaid financial statements and summarized
in such reports.
Approves
the consolidated accounts relating to the fiscal year ended December 31, 2018 established in accordance with U.S. GAAP as applied
to companies listed on the Nasdaq market, as they have been presented in the annual report on our consolidated financial statements
(Form 20-F) submitted to the Securities and Exchange Commission (“
SEC
”) on
April 12, 2019; it also approves the transactions reflected in these financial statements and summarized in this report.
The general
meeting therefore grants a release to all members of the Board of Directors for their management during the fiscal year 2018.
THIRD RESOLUTION
(Allocation of the result for
the fiscal year ended December 31, 2018)
The general
meeting, in accordance with the quorum and majority criteria required for ordinary shareholders meetings, acknowledges that the
Company has recorded a net loss of € 487,379 during fiscal year ended December 31, 2018.
The general
meeting, after reading the Board of Directors report, decides to clear the loss amounting to €487,379 by allocating the entire
€487,379 amount to the cumulated losses account, increasing from €14,590,778 to €15,078,154.
Pursuant
to article 243 bis of the French Tax Code, the general meeting takes note that no dividend has been distributed during the last
three fiscal years.
The
general meeting, pursuant to the Board of Directors' report, in accordance with article 223 quarter of the French Tax Code, notes
that there are no non-deductible expenses and charges concerned by article 39-4 of this Code
.
FOURTH RESOLUTION
(Determination
of attendance fees to the Board of Directors
)
The general
meeting, after reading the Board of Directors report, decides to allocate the sum of 108,000 euros to the Board of Directors. It
is up to the Board of Directors to distribute this sum among its members.
AGENDA OF THE EXTRAORDINARY SHAREHOLDERS
MEETING:
FIFTH
RESOLUTION
(
Determination of the total maximum amount applicable to the financial delegations of authority granted to the
Board of Directors to increase the share capital
)
The shareholders’
meeting, having satisfied the conditions of quorum and majority required for extraordinary general meetings,
having
considered the report of the Board of Directors,
decides
that:
|
(i)
|
the maximum aggregate nominal amount of share capital increases
that may be carried out pursuant to the delegations in the sixth to tenth resolutions, is set at 1,300,000 euros (one million three
hundred thousand euros) ) i.e., a maximum number of shares of 10,000,000 with a nominal value of 0.13 euro each., to which amount
must be added, if need be, the additional amount of the shares or securities to be issued to preserve, as provided by law and by
any applicable contractual provision providing for any other cases of adjustments, the rights of the holders of securities giving
access to share capital or other rights giving access to share capital,
|
|
(ii)
|
the maximum aggregate nominal amount of debt securities which
may be issued pursuant to the delegations granted in the sixth to eleventh resolutions is set at 1,300,000 euros or the equivalent
of this amount in foreign currencies on the issuance date, provided that:
|
|
-
|
this maximum aggregate nominal amount may be increased by any
reimbursement premium exceeding par value, and
|
|
-
|
this maximum aggregate nominal amount does not apply to debt
securities which issuance would be decided or authorized by the Board of Directors pursuant to Article L.228-40 of the French Commercial
Code.
|
SIXTH RESOLUTION
(
Delegation
of authority to be granted to the Board of Directors to increase the share capital, by issuance of shares or other securities giving
access to the Company’s share capital or giving rights to debt securities issued by the Company, with preferential subscription
rights for shareholders)
The shareholders’
meeting, having satisfied the conditions of quorum and majority required for extraordinary general meetings and noting that the
share capital is fully paid-up,
having
considered the report of the Board of Directors and the Auditors’ Special Report,
pursuant
to the provisions of articles L.225-129-2, L.225-134, L.228-92 and L.228-93 of the French Commercial code,
1. delegates
its authority to the Board of Directors to decide, under any such proportion and at any such periods it may deem appropriate, one
or several capital increases by issuance, in France or abroad, of ordinary shares of the Company or any securities giving access
by any means, whether immediately and/or in the future, to the share capital of the Company or to the share capital of any company
which may directly or indirectly hold more than half of its share capital or of which it may directly or indirectly hold more than
half of the share capital, or any securities giving a right to the allocation of debt securities. Said securities may be issued
in euros, in foreign currencies or in any monetary units whatsoever established by reference to several currencies, at the option
of the Board of Directors and which subscription may be made either in cash or by set off,
2. decides
that the aggregate maximum nominal amount of the capital increases which may be carried out, immediately or in the future, pursuant
to this resolution is set at 1,300,000 euros (or its equivalent in foreign currencies as at the date of subscription), to which
amount must be added, if need be, the nominal amount of the additional shares or securities to be issued to preserve, as provided
by law and by any applicable contractual provision providing for any other cases of adjustments, the rights of the holders of securities
giving access to the share capital and other rights giving access to the share capital,
3. decides
that this amount shall be applied against the aggregate maximum provided for in the fifth resolution above, provided that:
|
-
|
this amount will be increased, if applicable, by any redemption
premium above par,
|
|
-
|
this aggregate maximum does not apply to debt securities referred
to in articles L.228-40, L.228-36-A and L.228-92 paragraph 3 of the French Commercial Code which the issuance would be decided
or authorized by the Board of Directors under the conditions provided for in Article L.228-40 of the French Commercial Code, or
in other cases, under the conditions determined by the Company in accordance with Article L.228-36-A of the French Commercial Code,
|
4. decides
to set the maximum nominal amount of debt securities which may be issued pursuant to this delegation at 1,300,000 euros (or its
equivalent in foreign currencies as at the date of subscription), to be applied against the aggregate maximum provided for in the
fifth resolution above,
5. decides
that the shareholders may exercise, in accordance with the law and regulations in force, their preferential subscription rights
to the ordinary shares and the securities issued pursuant to the present delegation,
6. decides
that the Board of Directors may grant shareholders the right to subscribe to securities in excess of those they may subscribe to
as of right (
droit de souscription à titre réductible
), which shall be exercised in proportion to their rights
and within the limits of their requests,
7. decides
that if the subscriptions as of right (
souscription à titre irréductible
), or as the case may be, excess subscriptions
(
souscription à titre réductible
) have not absorbed the entire issuance of shares or of securities or debt
securities, the Board of Directors may choose, in the order that seems relevant to it, one or several of the options below:
|
-
|
limit the issuance to the amount of the subscriptions received,
provided that such subscription is equivalent to at least three-fourths of the initial amount of the relevant issuance as decided
by the Board of Directors,
|
|
-
|
distribute freely all or some of the unsubscribed shares, which
have not been subscribed as of right, or as the case may be, excess subscriptions,
|
|
-
|
offer to the public all or part of the unsubscribed securities,
|
8. specifies
that transactions contemplated by this delegation may be carried out at any moment, including during a tender offer and/or a standing
market offer for the securities of the Company,
9. decides
that the Board of Directors shall have all powers to implement this delegation, in accordance with the law and the Company’s
by-laws, in order, in particular, to decide the dates, terms and conditions of issuances, the form and characteristics of shares
or securities giving access to the share capital or debt securities to be issued, with or without a premium. The Board of Directors
shall in particular determine the amount to be issued, set the date of dividend rights, including a retroactive date, for the securities
to be issued, determine the method of paying-up of the shares or securities giving access to the share capital to be issued immediately
or in the future; if need be, the strike price and exercise period of the securities or the terms of the exercise of the rights
for exchange, conversion, repayment, or attribution by other manner of shares or securities giving access to the share capital
pursuant to this delegation,
10. decides
that the Board of Directors shall have all powers to implement this delegation, on one or more occasions, and in such proportions
and at any such times it may deem appropriate, and to issue the corresponding securities or to postpone such issuances, enter into
all agreements to ensure the success of the contemplated issuances, acknowledge the completion of such issuances and amend accordingly
the by-laws and more generally, to do the following:
|
-
|
determine, in accordance with applicable laws, the possible adjustments
of the terms under which the securities may in the future give access to the share capital,
|
|
-
|
suspend, if need be, the exercise of rights attached to such
securities as permitted by laws and regulations, for a maximum period of three (3) months,
|
|
-
|
deduct any amounts from the share premiums, in particular, the
cost of any capital increases,
|
|
-
|
ensure in the future the protection of the rights of holders
of securities giving access to the share capital of the Company in accordance with applicable laws and regulations,
|
|
-
|
take all measures and perform all formalities required in light
of the issuance, listing and financial services for the securities issued pursuant to this resolution and the exercise of rights
attached thereto,
|
11. acknowledges
that, in the event that the Board of Directors uses the delegation of authority granted to it under this resolution, it shall report
to the next shareholders’ general meeting on the use made by it of such delegation, in accordance with applicable laws and
regulations,
12. decides
the present delegation is granted for a period of twenty-six (26) months from the date of this meeting.
SEVENTH RESOLUTION
(Delegation
of authority to be granted to the Board of Directors to increase the share capital, by issuance of shares or other securities giving
access to the Company’s share capital or giving rights to debt securities issued by the Company, with cancellation of shareholders’
preferential subscription rights, by means of a public offering)
The shareholders’
meeting, having satisfied the conditions of quorum and majority required for extraordinary general meetings and noting that the
share capital is fully paid-up,
having
considered the report of the Board of Directors and the auditors’ special report,
pursuant
to the provisions of Articles L.225-129, L.225-129-2, L.225-135, L.225-136 and L.228-91
et seq.
of the French Commercial
code,
1. delegates
its authority to the Board of Directors to decide, under any such proportion and at any such periods it may deem appropriate, one
or several capital increases by issuance of, in France or abroad, ordinary shares of the Company or any securities giving access
by any means, whether immediately and/or in the future, to the share capital of the Company or to the share capital of any company
which may directly or indirectly hold more than half of its share capital or of which it may directly or indirectly hold more than
half of the share capital, or any securities giving a right to the allocation of debt securities. Said securities may be issued
in euros, in foreign currencies or in any monetary units whatsoever established by reference to several currencies, at the option
of the Board of Directors and which subscription may be made either in cash or by set off,
2. decides
the issuances which may be carried out pursuant to this delegation may be realized through a public offering, being specified that
the Company may proceed by way of the filing of a registration statement with the SEC in the United States,
3. decides
that the maximum nominal amount of the capital increased which may be carried out, immediately or in the future, pursuant to this
resolution, is set at 1,300,000 euros (or its equivalent in foreign currencies as at the date of subscription), to which amount
must be added, if need be, the nominal amount of the additional shares or securities to be issued to preserve, as provided by law
and by any applicable contractual provision providing for other cases of adjustments, the rights of the holders of securities giving
access to the share capital and other rights giving access to the share capital, which amount shall be applied against the aggregate
maximum provided for in the fifth resolution above. In any case, such share capital increases may not represent, subject to the
aforementioned limit, more than 20% of the Company’s share capital at the date of issuance,
4. decides
to set at 1,300,000 euros (or its equivalent in foreign currencies as at the date of subscription), the maximum nominal amount
of debt securities which may be issued pursuant to this delegation, provided that :
|
-
|
this amount will be increased, if applicable, by any redemption
premium above par,
|
|
-
|
this amount shall be applied against the aggregate maximum provided
for in the fifth resolution above,
|
|
-
|
this aggregate maximum does not apply to debt securities referred
to in Articles L.228-40, L.228-36-A and L.228-92 paragraph 3 of the French Commercial Code which the issuance would be decided
or authorized by the Board of Directors under the conditions provided for in Article L.228-40 of the French Commercial Code, or
in other cases, under the conditions determined by the Company in accordance with Article L.228-36- A of the French Commercial
Code;
|
5. decides
to cancel the shareholders' preferential subscription rights to the shares and/or any securities and/or any debt securities to
be issued, in accordance with applicable law,
6. decides
that the price of shares or securities issued pursuant to this delegation shall be determined by the Board of Directors as such
price would result from the mechanism of supply and demand as per the so-called book-building method developed by professional
customs (specifying, however, that if the shares of the Company are admitted for trading on a regulated market when this delegation
is used, the price shall be set in accordance with the provisions of article L.225-136-1° of French Commercial code). In any
case, the price so determined by the Board of Directors may represent a discount compared to the trading price of the Company’s
share on the NASDAQ,
7. acknowledges
and decides that this delegation shall automatically result in the waiver by the shareholders of their preferential subscription
rights to the shares to which the issued securities entitle them, in favor of holders of securities to be issued by the Board of
Directors,
8. specifies
that transactions contemplated in this resolution may be carried out at any moment, including during a tender offer and/or a standing
market offer for the securities of the Company,
9. decides
that the Board of Directors shall have all powers to implement this delegation, in accordance with law and the Company’s
by-laws, in order, in particular, to decide the dates, terms and conditions of issuances, the form and characteristics of shares
or securities giving access to the share capital or debt securities to be issued, with or without a premium. The Board of Directors
shall in particular determine the amount to be issued, set the date of dividend rights, including retroactive, for the securities
to be issued, determine the method of paying-up of the shares or securities giving access to the share capital to be issued immediately
or in the future; if need be, the strike price and exercise period of the securities or the terms of the exercise of the rights
for exchange, conversion, repayment, or attribution by other manner of shares or securities giving access to the share capital
pursuant to this delegation,
10. decides
that the Board of Directors shall have all powers to implement this delegation, on one or more occasions, and in such proportions
and at any such times it may deem appropriate, and to issue the corresponding securities or to postpone such issuances, enter into
all agreements to ensure the success of the contemplated issuances, acknowledge the completion of such issuances and amend accordingly
the by-laws and more generally, to do the following:
|
-
|
determine, in accordance with applicable laws, the possible adjustments
of the terms under which the securities may in the future give access to the share capital,
|
|
-
|
suspend, if need be, the exercise of rights attached to such
securities as permitted by laws and regulations, for a maximum period of three (3) months,
|
|
-
|
deduct any amounts from the share premiums, in particular, the
cost of any capital increases,
|
|
-
|
ensure in the future the protection of the rights of holders
of securities giving access to the share capital of the Company in accordance with applicable laws and regulations,
|
|
-
|
take all measures and perform all formalities required in light
of the issuance, listing and financial services for the securities issued pursuant to this resolution and the exercise of rights
attached thereto,
|
11. acknowledges
that, in the event that the Board of Directors uses the delegation of authority granted to it under this resolution, it shall report
to the next shareholders’ general meeting on the use made by it of such delegation, in accordance with applicable laws and
regulations,
12. decides
the present delegation is granted for a period of twenty-six (26) months from the date of this meeting.
EIGHTH RESOLUTION
(Delegation
of authority to be granted to the Board of Directors to increase the share capital, by issuance of shares or other securities giving
access to the Company’s share capital, with cancellation of shareholders’ preferential subscription rights, in favor
of a first category of persons who meet certain specified characteristics)
In line
with the Company's development and growth strategy, the Shareholders’ Meeting, having satisfied the conditions of quorum
and majority required for extraordinary general meetings,
having
considered the report of the Board of Directors and the auditors’ special report,
pursuant
to the provisions of Articles L.225-129, L.225-129-2, L.225-138 and L.228-91
et seq.
of the French Commercial code,
1. delegates
its authority to the Board of Directors to decide, under any such proportion and at any such periods it may deem appropriate, one
or several capital increases by issuance of, in France or abroad, ordinary shares of the Company or any securities giving access
by any means, whether immediately and/or in the future, to the share capital of the Company (including, in particular, bonds redeemable
or convertible into shares and all share warrants, attached or not to shares or other securities). Such securities may be issued
in euros, in foreign currencies or in any monetary units whatsoever established by reference to several currencies, at the option
of the Board of Directors and which subscription may be made either in cash or by set off,
2. decides
that the issuance of preferred shares is expressly excluded from this delegation,
3. decides
that the maximum nominal amount of the capital increases which can be carried out, immediately or in the future, pursuant to the
authority delegated by the shareholders meeting to the Board of Directors by this resolution, is set at 1,300,000 euros (or its
equivalent in foreign currencies as at the date of subscription) to which amount must be added, if need be, the nominal amount
of the additional shares or securities to be issued to preserve, as provided by law and by any applicable contractual provision
providing for other adjustments, the rights of the holders of securities giving access to the share capital and other rights giving
access to the share capital,; this amount shall be applied against the aggregate maximum provided for in the fifth resolution above.
In any case, such share capital increases may not represent, subject to the aforementioned limit, more than 20% of the Company’s
share capital at the date of issuance,
4. decides
to set at 1,300,000 euros (or its equivalent in foreign currencies as at the date of subscription), the maximum nominal amount
of debt securities which may be issued pursuant to this delegation, provided that :
|
-
|
this amount will be increased, if applicable, by any redemption
premium above par,
|
|
-
|
this amount shall be applied against the aggregate maximum provided
for in the fifth resolution above,
|
|
-
|
this aggregate maximum does not apply to debt securities referred
to in Articles L.228-40, L.228-36-A and L.228-92 paragraph 3 of the French Commercial Code which the issuance would be decided
or authorized by the Board of Directors under the conditions provided for in Article L.228-40 of the French Commercial Code, or
in other cases, under the conditions determined by the Company in accordance with Article L.228-36- A of the French Commercial
Code,
|
5. decides
to cancel the shareholders’ preferential subscription rights for the shares and securities which would be issued hereto and
to reserve subscription of such shares and securities which are the subject of this resolution to the new or existing investors
which meet all of the criteria specified in A. or B. below, for a minimum individual subscription amount of 250,000 euros or its
equivalent in foreign currencies as at the date of subscription (issuance premium included):
A.
|
(i)
|
institutional investors or individuals being, as the case may
be, qualified institutional buyers or institutional accredited investors under U.S. law or qualified investors
(investisseurs
qualifiés
) under French law (e.g., investment funds, investment companies, pension funds, banks and other financial
institutions, insurance companies, etc.); and
|
|
(ii)
|
specialized or skilled in the health care or biotechnologies
secteurs or specialized in investing in companies with high growth potential; and
|
|
(iii)
|
which are prepared to make an investment decision in respect
of the Company solely based on available public information, provided, however, that each prospective investor will be required
to enter into a confidentiality agreement regarding the proposed investment prior to any disclosure to it of the name of the Company;
or
|
B. any
placement agent or underwriter in connection with the offering or the placement of shares or securities giving access to the Company’s
share capital to investors meeting the criteria set forth in A. above, as part of such agent’s or underwriter’s compensation
for their services.
6. specifies
that, pursuant to Article L.225-132 of the French Commercial code, this delegation shall automatically result in the cancellation
by the shareholders of their preferential subscription rights to the shares to which the issued securities entitle them,
7. decides
that the issue price (or the amount of the consideration to be subsequently paid to the Company for each share to be issued, in
the event of an issue of securities giving access to the Company's share capital) shall be at least equal to the average of the
prices weighted by the volumes of the last 3 trading days, on the NASDAQ market, preceding the setting of the price of the issuance,
possibly reduced by a maximum discount of 30%, taking into account, if applicable, their dividend entitlement date and it being
specified that the issue price of any securities giving access to the share capital issued pursuant to this delegation shall be
such that the amount received immediately by the Company, increased by the amount that may be received by it upon the exercise
or conversion of such securities, is, for each share issued as a result of the issue of such securities, at least equal to the
above-mentioned minimum amount,
8. decides
that the Board of Directors shall have all powers to implement this delegation, in accordance with applicable laws, including but
not limited to the following purposes:
|
-
|
determine, the amount of the share capital increase, the issuance
price (being specified that the latter will be set in accordance with the modalities defined above) as well as any issuance premium,
that may be requested,
|
|
-
|
set the dates, the terms and conditions of any issuance as well
as the form and characteristics of shares or securities giving access to the share capital to be issued,
|
|
-
|
set the date of dividend rights, including retroactive, for the
shares and securities giving access to the share capital to be issued, and determine the method of paying-up,
|
|
-
|
set the list of beneficiaries for each of the aforementioned
categories and the number of shares to be allocated to each of them,
|
|
-
|
allocate the costs of capital increases to the amount of premiums
related thereto and deduct from such amount the sums necessary to raise the level of the legal reserve to one-tenth of the new
capital after each capital increase,
|
|
-
|
perform formalities following each capital
increase and subsequent modification of the by-laws,
|
|
-
|
more generally, enter into any agreement, in particular if necessary
to ensure completion of the contemplated issuances, take all measures and perform all formalities required in light of the issuance,
listing and financial services for the securities issued pursuant to this resolution and the exercise of rights attached thereto,
|
9. decides
that this delegation is granted for a period of eighteen (18) months from the date of this meeting and replaces the prior authorization
having the same,
10. acknowledges
that, in the event that the Board of Directors uses the delegation of authority granted to it under this resolution, it shall report
to the next shareholders’ general meeting on the use made by it of such delegation, in accordance with applicable laws and
regulations.
NINTH RESOLUTION
(Delegation
of authority to be granted to the Board of Directors to increase the share capital, by issuance of shares or other securities giving
access to the Company’s share capital, with cancellation of shareholders’ preferential subscription rights, in favor
of a second category of persons who meet certain specified characteristics)
In line
with the Company's development and growth strategy, the shareholders’ meeting, having satisfied the conditions of quorum
and majority required for extraordinary general meetings,
having
considered the report of the Board of Directors and the auditors’ special report,
pursuant
to the provisions of Articles L.225-129, L.225-129-2, L.225-138 and L.228-91
et seq.
of the French Commercial code,
1. delegates
its authority to the Board of Directors to decide, under any such proportion and at any such periods it may deem appropriate, one
or several capital increases by issuance of, in France or abroad, ordinary shares of the Company or any securities giving access
by any means, whether immediately and/or in the future, to the share capital of the Company (including, in particular, bonds redeemable
or convertible into shares and all share warrants, attached or not to shares or other securities). Such securities may be issued
in euros, in foreign currencies or in any monetary units whatsoever established by reference to several currencies, at the option
of the Board of Directors and which subscription may be made either in cash or by set off,
2. decides
that the issuance of preferred shares is expressly excluded from this delegation,
3. decides
that the maximum nominal amount of the capital increases which can be carried out, immediately or in the future, pursuant to the
authority delegated by the shareholders meeting to the Board of Directors by this resolution, is set at 1,300,000 euros (or its
equivalent in foreign currencies at the date of subscription) to which amount must be added, if need be, the nominal amount of
the additional shares or securities to be issued to preserve, as provided by law and by any applicable contractual provision providing
for other cases of adjustments, the rights of the holders of securities giving access to the share capital and other rights giving
access to the share capital, this amount shall be applied against the aggregate maximum provided for in the fifth resolution above.
In any case, such share capital increases may not represent, subject to the aforementioned limit, more than 20% of the Company’s
share capital at the date of issuance,
4. decides
to set at 1,300,000 euros (or its equivalent in foreign currencies as at the date of subscription), the maximum nominal amount
of debt securities which may be issued pursuant to this delegation, provided that :
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-
|
this amount will be increased, if applicable, by any redemption
premium above par;
|
|
-
|
this amount shall be applied against the aggregate maximum provided
for in the fifth resolution above
|
|
-
|
this aggregate maximum does not apply to debt securities referred
to in Articles L.228-40, L.228-36-A and L.228-92 paragraph 3 of the French Commercial Code which the issuance would be decided
or authorized by the Board of Directors under the conditions provided for in Article L.228-40 of the French Commercial Code, or
in other cases, under the conditions determined by the Company in accordance with Article L.228-36- A of the French Commercial
Code;
|
5. decides
to cancel the shareholders’ preferential subscription rights for the shares and securities which would be issued hereto and
to reserve subscription of such shares and securities which are the subject of this resolution in favor of the following new or
existing investors, with a maximum of 150 subscribers, with a minimum individual subscription amount of 10,000 euros or its equivalent
in foreign currencies as at the date of subscription (issuance premium included):
|
(i)
|
practitioners who have used the Company’s technologies
over the course of the last 24 months preceding the issuance of the securities, subject to compliance with the applicable laws
and professional ethics; and/or
|
|
(ii)
|
commercial partners of the Company who have entered into a business
agreement with the Company over the last 24 months preceding the issuance of the securities; and/or
|
|
(iii)
|
patients who have benefited from treatments using technologies
developed by the Company over the last 10 years,
|
6. specifies
that, pursuant to Article L.225-132 of the French Commercial code, this delegation shall automatically result in the cancellation
by the shareholders of their preferential subscription rights to the shares to which the issued securities entitle them,
7. decides
that the issue price (or the amount of the consideration to be subsequently paid to the Company for each share to be issued, in
the event of an issue of securities giving access to the Company's share capital) shall be at least equal to the average of the
prices weighted by the volumes of the last 3 trading days, on the NASDAQ market, preceding the setting of the price of the issue,
possibly reduced by a maximum discount of 30%, taking into account, if applicable, their dividend entitlement date and it being
specified that the issue price of any securities giving access to the share capital issued pursuant to this delegation shall be
such that the amount received immediately by the Company, increased by the amount that may be received by it upon the exercise
or conversion of such securities, is, for each share issued as a result of the issue of such securities, at least equal to the
above-mentioned minimum amount,
8. decides
that the Board of Directors shall have all powers to implement this delegation, in compliance with applicable laws, including but
not limited to the following purposes:
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-
|
determine, the amount of the share capital increase, the issuance
price (being specified that the latter will be set in accordance with the conditions defined above) as well as any issuance premium,
that may be requested,
|
|
-
|
set the dates, the terms and conditions of any issuance as well
as the form and characteristics of shares or securities giving access to the share capital to be issued,
|
|
-
|
set the date of dividend rights, including a retroactive date,
for the shares and securities giving access to the share capital to be issued, and determine the method of paying-up,
|
|
-
|
set the list of beneficiaries for the aforementioned category
and the number of shares to be allocated to each of them,
|
|
-
|
allocate the costs of capital increases to the amount of premiums
related thereto and deduct from such amount the sums necessary to raise the level of the legal reserve to one-tenth of the new
capital after each capital increase,
|
|
-
|
perform formalities following each capital increase and subsequent
modification of the by-laws,
|
|
-
|
more generally, enter into any agreement, in particular if necessary
to ensure completion of the contemplated issuances, take all measures and perform all formalities required in light of the issuance,
listing and financial services for the securities issued pursuant to this resolution and the exercise of rights attached thereto,
|
9. decides
that this delegation is granted for a period of eighteen (18) months from the date of this meeting and replaces the prior authorization
having a similar purpose,
10. acknowledges
that, in the event that the Board of Directors uses the delegation of authority granted to it under this resolution, it shall report
to the next shareholders’ general meeting on the use made by it of such delegation, in accordance with applicable laws and
regulations.
TENTH RESOLUTION
(Delegation
of authority to be granted to the Board of Directors to increase the share capital, by issuance of shares or other securities giving
access to the Company’s share capital, with cancellation of shareholders’ preferential subscription rights, in favor
of the following category: directors and officers of the Company held at the office the date of issue of the shares or the securities
and individuals tied to the Company by an employment contract the date of the issue of the shares or the securities)
In line
with the Company's development and growth strategy, the shareholders’ meeting, having satisfied the conditions of quorum
and majority required for extraordinary general meetings,
having
considered the report of the Board of Directors and the auditors’ special report,
pursuant
to the provisions of Articles L.225-129, L.225-129-2, L.225-138 and L.228-91
et seq.
of the French Commercial code,
1. delegates
its authority to the Board of Directors to decide, under any such proportion and at any such periods it may deem appropriate, one
or several capital increases by issuance of, in France or abroad, ordinary shares of the Company or any securities giving access
by any means, whether immediately and/or in the future, to the share capital of the Company (including, in particular, bonds redeemable
or convertible into shares and all share warrants, attached or not to shares or other securities). Such securities may be issued
in euros, in foreign currencies or in any monetary units whatsoever established by reference to several currencies, at the option
of the Board of Directors and which subscription may be made either in cash or by set off,
2. decides
that the issuance of preferred shares is expressly excluded from this delegation,
3. decides
that the maximum nominal amount of the capital increases which can be carried out, immediately or in the future, pursuant to the
authority delegated by the shareholders meeting to the Board of Directors by this resolution, is set at 1,300,000 euros (or its
equivalent in foreign currencies at the date of subscription) to which amount must be added, if need be, the nominal amount of
the additional shares or securities to be issued to preserve, as provided by law and by any applicable contractual provision providing
for other cases of adjustments, the rights of the holders of securities giving access to the share capital and other rights giving
access to the share capital, this amount shall be applied against the aggregate maximum provided for in the fifth resolution above.
In any case, such share capital increases may not represent, subject to the aforementioned limit, more than 20% of the Company’s
share capital at the date of issuance,
4. decides
to cancel the shareholders’ preferential subscription rights for the shares and securities which would be issued hereto and
to reserve subscription of such shares and securities which are the subject of this resolution in favor of the following category
: (i) directors and officers of the Company held at the office the date of issue of the shares or the securities or (ii) individuals
tied to the Company by an employment contract the date of the issue of the shares or the securities,
5. specifies
that, pursuant to Article L.225-132 of the French Commercial code, this delegation shall automatically result in the cancellation
by the shareholders of their preferential subscription rights to the shares to which the issued securities entitle them,
6. decides
that the issue price will be set by the Board of Directors by reference, alternately, (i) either to the price of the last transaction
on the Company's share capital carried out during the previous 6 months, with an additional price or a discount of plus or minus
10% respectively compared to this price, (ii) or, in the absence of a transaction on the share capital during the previous 6 months,
to the average of the prices weighted by the volumes of the last 3 trading days on the NASDAQ market, preceding the determination
of the issue price, possibly reduced by a discount of 30%, taking into account, if applicable, their dividend entitlement date
and it being specified that the issue price of any securities giving access to the share capital issued pursuant to this delegation
will be such that the amount received immediately by the Company, increased by the amount likely to be received by it upon exercise
or conversion of said securities, is, for each share issued as a result of the issue of said securities, at least equal to the
minimum amount referred to above. In any event, the price thus determined by the Board of Directors may be discounted from the
Company's share price on the NASDAQ market,
7. decides
that the Board of Directors shall have all powers to implement this delegation, in compliance with applicable laws, including but
not limited to the following purposes:
|
-
|
determine, the amount of the share capital increase, the issuance
price (being specified that the latter will be set in accordance with the conditions defined above) as well as any issuance premium,
that may be requested,
|
|
-
|
set the dates, the terms and conditions of any issuance as well
as the form and characteristics of shares or securities giving access to the share capital to be issued,
|
|
-
|
set the date of dividend rights, including a retroactive date,
for the shares and securities giving access to the share capital to be issued, and determine the method of paying-up,
|
|
-
|
set the list of beneficiaries for the aforementioned category
and the number of shares to be allocated to each of them,
|
|
-
|
allocate the costs of capital increases to the amount of premiums
related thereto and deduct from such amount the sums necessary to raise the level of the legal reserve to one-tenth of the new
capital after each capital increase,
|
|
-
|
perform formalities following each capital increase and subsequent
modification of the by-laws,
|
|
-
|
more generally, enter into any agreement, in particular if necessary
to ensure completion of the contemplated issuances, take all measures and perform all formalities required in light of the issuance,
listing and financial services for the securities issued pursuant to this resolution and the exercise of rights attached thereto,
|
8. decides
that this delegation is granted for a period of eighteen (18) months from the date of this meeting and replaces the prior authorization
having a similar purpose,
9. acknowledges
that, in the event that the Board of Directors uses the delegation of authority granted to it under this resolution, it shall report
to the next shareholders’ general meeting on the use made by it of such delegation, in accordance with applicable laws and
regulations.
ELEVENTH RESOLUTION (
Delegation
of authority to be granted to the Board of Directors to increase the share capital, by issuance of shares or other securities giving
access to the Company’s share capital, with cancellation of shareholders’ preferential subscription rights as part
of an offer in favor of qualified investors (
investisseurs qualifiés
) or a limited circle of investors (
cercle
restreint d’investisseurs
) as mentioned in II of article L.411-2 of the French Monetary and Financial Code)
In line
with the Company's development and growth strategy, the shareholders’ meeting, having satisfied the conditions of quorum
and majority required for extraordinary general meetings,
having
considered the report of the Board of Directors and the auditors’ special report,
pursuant
to the provisions of articles L.225-129, L.225-129-2, L.225-136 and L.228-91
et seq.
of the French Commercial code,
1. delegates
its authority to the Board of Directors to decide, under any such proportion and at any such periods it may deem appropriate, one
or several capital increases by issuance of, in France or abroad, ordinary shares of the Company or any securities giving access
by any means, whether immediately and/or in the future, to the share capital of the Company (including, in particular, bonds redeemable
or convertible into shares and all share warrants, attached or not to shares or other securities). Such securities may be issued
in euros, in foreign currencies or in any monetary units whatsoever established by reference to several currencies, at the option
of the Board of Directors and which subscription may be made either in cash or by set off, as part of an offer in favor of qualified
investors (
investisseurs qualifiés
) or a limited circle of investors (
cercle restreint d’investisseurs
)
as mentioned in II of Article L.411-2 of the French Monetary and Financial Code, the said shares shall confer the same rights as
the old shares, subject to their dividend entitlement date,
2. decides
that the issue of preference shares is expressly excluded from this delegation,
3. decides
that the maximum nominal amount of the capital increases which can be carried out, immediately or in the future, pursuant to the
authority delegated by the shareholders meeting to the Board of Directors by this resolution, is set at 1,300,000 euros (or its
equivalent in foreign currencies at the date of subscription) to which amount must be added, if need be, the nominal amount of
the additional shares or securities to be issued to preserve, as provided by law and by any applicable contractual provision providing
for other cases of adjustments, the rights of the holders of securities giving access to the share capital and other rights giving
access to the share capital, this amount shall be applied against the aggregate maximum provided for in the fifth resolution above.
In any case, such share capital increases may not represent, subject to the aforementioned limit, more than 20% of the Company’s
share capital at the date of issuance,
4. decides
to set at 1,300,000 euros (or its equivalent in foreign currencies as at the date of subscription), the maximum nominal amount
of debt securities which may be issued pursuant to this delegation, provided that :
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-
|
this amount will be increased, if applicable, by any redemption
premium above par;
|
|
-
|
this amount shall be applied against the aggregate maximum provided
for in the fifth resolution above
|
|
-
|
this aggregate maximum does not apply to debt securities referred
to in Articles L.228-40, L.228-36-A and L.228-92 paragraph 3 of the French Commercial Code which the issuance would be decided
or authorized by the Board of Directors under the conditions provided for in Article L.228-40 of the French Commercial Code, or
in other cases, under the conditions determined by the Company in accordance with Article L.228-36- A of the French Commercial
Code;
|
5. decides
to cancel to the shareholders their preferential subscription rights on the shares and securities to be issued,
6. specifies
that, pursuant to article L.225-132 of the French Commercial code, this delegation shall automatically result in the cancellation
by the shareholders of their preferential subscription rights to the shares to which the issued securities entitle them,
7. decides
that the issue price (or the amount of the consideration to be paid subsequently to the Company for each share to be issued, in
the event of an issue of securities giving access to the Company's share capital) shall be at least equal to the average of the
prices weighted by the volumes of the last 3 trading days, on the NASDAQ market, preceding the determination of the price of the
issue, possibly reduced by a maximum discount of 5%, taking into account, if applicable, their dividend entitlement date and it
being specified that the issue price of any securities giving access to the share capital issued pursuant to this delegation shall
be such that the amount received immediately by the Company, increased by the amount that may be received by it upon the exercise
or conversion of such securities, is, for each share issued as a result of the issue of such securities, at least equal to the
above-mentioned minimum amount,
8. decides
that the Board of Directors shall have all powers to implement this delegation, in compliance with applicable laws, including but
not limited to the following purposes:
|
-
|
determine, the amount of the share capital increase, the issuance
price (being specified that the latter will be set in accordance with the conditions defined above) as well as any issuance premium,
that may be requested,
|
|
-
|
set the dates, the terms and conditions of any issuance as well
as the form and characteristics of shares or securities giving access to the share capital to be issued,
|
|
-
|
set the date of dividend rights, including a retroactive date,
for the shares and securities giving access to the share capital to be issued, and determine the method of paying-up,
|
|
-
|
set the list of beneficiaries for the aforementioned category
and the number of shares to be allocated to each of them,
|
|
-
|
allocate the costs of capital increases to the amount of premiums
related thereto and deduct from such amount the sums necessary to raise the level of the legal reserve to one-tenth of the new
capital after each capital increase,
|
|
-
|
perform formalities following each capital increase and subsequent
modification of the by-laws,
|
|
-
|
more generally, enter into any agreement, in particular if necessary
to ensure completion of the contemplated issuances, take all measures and perform all formalities required in light of the issuance,
listing and financial services for the securities issued pursuant to this resolution and the exercise of rights attached thereto,
|
9. decides
that this delegation is granted for a period of twenty-six (26) months from the date of this meeting and replaces the prior authorization
having a similar purpose,
10. acknowledges
that, in the event that the Board of Directors uses the delegation of authority granted to it under this resolution, it shall report
to the next shareholders’ general meeting on the use made by it of such delegation, in accordance with applicable laws and
regulations.
TWELFTH RESOLUTION
(Authorization
to be granted to the Board of Directors to grant options to subscribe for shares of the Company pursuant to the provisions of articles
L.225-177 et seq of the French commercial code)
The general
meeting, voting under the quorum and majority criteria required for extraordinary shareholders meetings,
having
considered of the Board of Directors’ report and the statutory auditor’s special report:
1. authorizes
the Board of Directors, in accordance with Articles L.225-177 et seq. of the French Commercial Code, to grant, on one or more occasions,
to employees and/or employee officers of the Company, as well as those of the companies mentioned in article L.225-180 of the French
Commercial Code,
options
entitling the holder to subscribe new shares of the Company, under the following conditions:
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(a)
|
the options to subscribe for shares that the Board of Directors
is authorized to grant, shall represent a maximum of 1,000,000 shares of the Company each with a face value of €0.13; representing
a capital increase of a maximum nominal amount of 130,000 euros, which will be deducted from the aggregate amount of 130,000 euros
referred to in the fifteenth resolution of this meeting,
|
|
(b)
|
to the extent that the shares of the Company, each represented
by an "American Depositary Share" (hereinafter referred to as an "ADS"), are admitted to trading on the NASDAQ
Global Market in the United States of America, the exercise price of each of these options shall be determined by the Board of
Directors, on the day the option is granted, by reference to the closing share price on the NASDAQ on the day preceding that of
the Board of Directors' decision to grant the options. The exercise price shall not be lower than 95% of the average quoted price
of the ADS of the Company listed on the NASDAQ stock market calculated on the basis of the last twenty (20) trading sessions preceding
the date of the decision of the Board of Directors to grant such options,
|
|
(c)
|
no option for the subscription of shares may be granted less
than twenty trading sessions after the dividend date or after a share capital increase,
|
|
(d)
|
the options to subscribe for shares shall be exercised by their
beneficiaries within a maximum of ten (10) years from the day on which they are granted; this timeframe may however be reduced
by the Board of Directors for the beneficiaries who are residents in a given country, to the extent this may be necessary to comply
with the applicable laws of such country,
|
|
(e)
|
the total number of shares that can be subscribed upon exercise
of options granted and not yet exercised may not be greater than one third of the share capital,;
|
|
(f)
|
options to subscribe for shares may not be granted to any employee
holding more than 10% of the share capital on the date of the decision of the Board of Directors to grant such options,
|
|
(g)
|
the options to subscribe for shares granted by the Board of Directors
to employees subject to tax in the United States will be intended to be Incentive Stock Options ("ISOs"), for U.S. tax
purposes, and must meet certain criteria listed below. The options to subscribe for shares can also be non-qualified stock options
(for U.S. tax purposes) in the discretion of the Board of Directors at the time of grant or when the ISO limits are exceeded. The
following additional terms will apply to grants of options to subscribe for shares designated as ISOs:
|
(i)
Eligible employees
: All employees of the Company and its subsidiaries in which the Company directly or indirectly owns or
controls more than 50% of the total voting rights of the outstanding securities giving the right to the election of members of
the Board of Directors represented by all classes of shares issued by this company may be beneficiaries of the ISO allocation plan
provided they meet the legal conditions required to be granted share subscription options. The beneficiaries will be appointed
by the Board of Directors. Consultants and directors who are not employees are not eligible for these awards.
(ii)
Maximum number of shares
: The ISOs that the Board of Directors is authorized to grant will cover a maximum of 1,000,000
shares of the Company. Any beneficiary could be granted up to ISO 1,000,000, up to the maximum amount of shares to be issued and
to the extent that this beneficiary is eligible to receive these options under current French regulations.
(iii)
Exercise price
: The exercise price is determined by the Board of Directors in accordance with the procedures referred to
above, it being specified, however, that in the case of ISO beneficiaries (and NQSO beneficiaries who are US tax residents), the
exercise price of the stock options may not be less than 100% of the market value of the share on the day the option is granted,
which is determined by reference to the closing share price on the NASDAQ on the day preceding the date of the Board of Directors'
decision to grant the options.
(iv)
Option term
: The ISOs may be exercisable for up to ten years from the date of grant. However, when an employee, at the date
of grant, holds greater than 10% of the share capital of the Company, and to the extent that it is eligible for grants under the
plan pursuant to applicable regulations, the options are exercisable for up to five years from the date of grant. The terms of
10 and five years, respectively, may not be exceeded, including in the case of early exercise in the event of death or disability
of the beneficiary.
2. decides
that the exercise price of the options to subscribe for shares may not be changed during the duration of the option. If the Company
carries out one of the transactions mentioned in article L.225-181 of the French Commercial Code, the Board of Directors shall
take the necessary steps to protect the interests of the beneficiaries of the options to subscribe for shares as provided in Article
L.228-99 of the French Commercial Code. In case of issuance of new securities giving access to the Company share capital, as well
as in the case of merger or split-up, the Board of Directors could suspend the exercise of the options,
3. takes
note that, pursuant to Article L.225-178 of the French Commercial Code, the present authorization shall automatically give rise,
in favor of the beneficiaries of stock options, to waiver by the shareholders of their preferential subscription rights to the
shares issuable upon exercise of the option;
4. gives
to the Board of Directors all necessary powers to determine the terms of the option plan, the conditions under which the options
to subscribe for shares will be granted, including in particular :
|
-
|
to determine the list of beneficiaries of the options to subscribe
for shares as well as the number of options to grant to each of such beneficiaries;
|
|
-
|
to suspend temporarily and for the maximum duration provided
by law, which is, on this day, three (3) months, the exercise of the options in case transactions mentioned in article L.225-149-1
of the French Commercial Code are carried out;
|
|
-
|
to prohibit the immediate resale of all or part of the shares
without the time limit imposed for the retention of the shares exceeds three (3) years from the exercise of the option.
|
5. decides
that the Board of Directors shall have at its disposal all the necessary powers to take note of the share capital increases and
fulfill the related formalities.
6. determines
that the present authorization may be used by the Board of Directors during thirty-eight (38) months as from this day;
7. takes
note that the Board of Directors shall inform the shareholders every year at the ordinary shareholders meeting of the transactions
implemented pursuant to this authorization.
THIRTEENTH RESOLUTION
(Authorization
to be granted to the Board of Directors to grant options to purchase shares of the Company pursuant to the provisions of articles
L.225-177 et seq of the French commercial code
.
)
The general
meeting, voting under the quorum and majority criteria required for extraordinary shareholders meetings,
having
considered of the Board of Directors’ report and the statutory auditor’s special report:
1. authorizes
the Board of Directors, in accordance with Articles L.225-177 et seq. of the French Commercial Code, to grant, on one or more occasions,
to employees and/or employee officers of the Company, as well as those of the companies mentioned in article L.225-180 of the French
Commercial Code,
Options
to purchase shares of the Company, under the following conditions:
|
a)
|
the options to purchase shares that the Board of Directors is
authorized to grant, shall represent a maximum of 358,528 shares of the Company each with a face value of €0.13;
|
|
b)
|
in order to satisfy the exercise of this options, the Board of
Directors is authorized to use shares (i) that Company already holds for having duly acquired them for allocation to employees
and corporate officers pursuant to Article L.225-177 of the French Commercial Code, and (ii) for which the options, duly granted
within one year of their acquisition, may no longer be exercised;
|
|
c)
|
the exercise price of each option to purchase shares shall be
set by the Board of Directors on the day of issue of the options, by reference to the closing share price on the NASDAQ on the
day preceding the day of the Board of Directors' decision to grant the options, which may not be less than:
|
|
·
|
95% of the average price of the ADS of the Company listed on
the NASDAQ stock market over the twenty trading days preceding the grant of the said options, and
|
|
·
|
95% of the average purchase price of shares purchased by the
Company for allocation to employees or corporate officers.
|
|
d)
|
no option to purchase shares may be granted less than twenty
trading sessions after the dividend date or after a share capital increase;
|
|
e)
|
the option to purchase shares shall be exercised by their beneficiaries
within a maximum of ten (10) years from the day on which they are granted; this timeframe may however be reduced by the Board of
Directors for the beneficiaries who are residents in a given country, to the extent this may be necessary to comply with the applicable
laws of such country;
|
|
f)
|
the total number of shares that can be granted may not give entitlement
to more than 10% of the total number of shares issued by the Company, taking into account the treasury shares already held by the
Company;
|
|
g)
|
option to purchase shares may not be granted to any employee
holding more than 10% of the share capital.
|
2. decides
that the exercise price of the option to purchase shares may not be changed during the duration of the option. If the Company carries
out one of the transactions mentioned in Article L.225-181 of the French Commercial Code, the Board of Directors shall take the
necessary steps to protect the interests of the beneficiaries of the options to subscribe for shares as provided in article L.228-99
of the French Commercial Code. In case of issuance of new securities giving access to the Company share capital, as well as in
the case of merger or split-up, the Board of Directors could suspend the exercise of the options,
3. gives
to the Board of Directors all necessary powers to determine the terms of the option plan, the conditions under which the option
to purchase shares will be granted, including in particular :
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to determine the list of beneficiaries of the option to purchase
shares as well as the number of options to grant to each of such beneficiaries;
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to suspend temporarily and for the maximum duration provided
by law, which is, on this day, three (3) months, the exercise of the options in case transactions mentioned in article L.225-149-1
of the French Commercial Code are carried out;
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to prohibit the immediate resale of all or part of the shares
without the time limit imposed for the retention of the shares exceeds three (3) years from the exercise of the option.
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4. gives
the Board of Directors all necessary powers to decide on any additional terms and conditions relating to the granting of the said
options, provided that such terms and conditions do not contradict those set out in this resolution,
5. decides
that the Board of Directors shall have all the powers necessary to carry out this resolution and carry out all related formalities,
6. determines
that the present authorization may be used by the Board of Directors during thirty-eight (38) months as from this day,
7. takes
note that the Board of Directors shall inform the shareholders every year at the ordinary shareholders meeting of the transactions
implemented pursuant to this authorization.
FOURTEENTH RESOLUTION
(Delegation
of authority to allow the Board of Directors to increase the share capital by issuance of shares or other securities giving access
to the Company’s share capital, with cancellation of shareholders’ preferential subscription rights in favor of participants
in the Company’s employee savings plan)
The shareholders’
meeting, having satisfied the conditions of quorum and majority required for extraordinary general meetings,
having
considered the report of the Board of Directors and the auditors’ special report, pursuant to the provisions of Articles
L.225-129-6 of the French Commercial code and Articles L.3332-18
et seq
. of the French Labor code,
1. delegates
its authority to the Board of Directors to decide, pursuant to its own deliberations, one or several capital increases by issuance
of ordinary shares of the Company, directly or through an employee mutual fund, reserved for participants in the Company’s
employee savings plan as permitted under Articles L.332-1
et seq.
of the French Labor code which would be open to the Company’s
employees and affiliated entities, as defined by Article L.225-180 of the French Commercial code, and who further meet, as the
case may be, the conditions that may be set by the Board of Directors (hereinafter the “
Group Employees
”),
2. decides
therefore to cancel the shareholders’ preferential subscription rights under Article L.225-132 of the French Commercial code
for the ordinary shares which would be issued hereto and to reserve subscription of such ordinary shares to the Group Employees,
3. sets
at 50,000 (fifty thousand) euros (or its equivalent in foreign currencies on the date of subscription) the maximum nominal amount
of the shares that may be issued,
4. decides
that this amount shall be applied against the aggregate maximum of 130,000 euros for share capital increase which may be carried
out pursuant to the delegations granted to the delegations granted to the Board of Directors, as provided in the fifteenth resolution,
5. decides
that the issuance price per share will be set by the Board of Directors in accordance with Article L.3332-20 of the French Labor
code,
6. decides
that this authorization is granted for a period of eighteen (18) months from the date of this meeting,
FIFTEENTH
RESOLUTION
(
Determination of the total maximum amount applicable to the delegations of authority granted to the Board of
Directors to increase the share capital as mentioned at the resolutions 12 and 14
)
The shareholders’
meeting, having satisfied the conditions of quorum and majority required for extraordinary general meetings,
having
considered the report of the Board of Directors,
decides
the maximum aggregate nominal amount of share capital increases that may be carried out pursuant to the delegations in the twelfth
and fourteenth resolutions, is set at 130,000 euros (one hundred and thirty thousand euros ) i.e., a maximum number of shares of
1,000,000 with a nominal value of 0.13 euro each., to which amount must be added, if need be, the additional amount of the shares
or securities to be issued to preserve, as provided by law and by any applicable contractual provision providing for any other
cases of adjustments, the rights of the holders of securities giving access to share capital or other rights giving access to share
capital.