UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO
RULE 13a-16 OR 15d-16 UNDER THE
SECURITIES EXCHANGE ACT OF 1934
For the month of September 2024
Commission File Number 001-40996
MDXHEALTH SA
(Translation of registrant’s name into English)
CAP Business Center
Zone Industrielle des Hauts-Sarts
4040 Herstal, Belgium
+32 4 257 70 21
(Address of principal executive office)
Indicate by check mark whether the registrant
files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
MDXHEALTH SA
INCORPORATION BY REFERENCE
Exhibits 1.1, 3.1, 5.1, 23.1 and 99.1 of this report on Form 6-K shall be deemed
to be incorporated by reference into the registration statement on Form F-3 (Registration Statement No. 333-268885) of MDxHealth
SA (the “Company,” “we,” “us” and “our”) (including any prospectuses forming a part of
such registration statement) and to be a part thereof from the date on which this report is filed, to the extent not superseded by documents
or reports subsequently filed or furnished.
On September 25, 2024, the Company entered into (i) an Underwriting
Agreement (the “Underwriting Agreement”) with TD Securities (USA) LLC and William Blair & Company, L.L.C. (the
“Underwriters”), as representatives of the several underwriters named therein, relating to the issuance and sale of 18,500,000
ordinary shares (“ordinary shares”) with no nominal value per share and (ii) a Securities Purchase Agreement (the “Securities
Purchase Agreement”) with Genomic Health, Inc., relating to the issuance and sale of 1,500,000 ordinary shares to Genomic Health,
Inc. by the Company (collectively, the “Offering”). In addition, under the terms of the Underwriting Agreement, the
Company granted the Underwriters an option, exercisable for 30 days, to purchase up to an additional 2,775,000 ordinary shares.
The net proceeds from the Offering are expected to be approximately $37.3 million, or $42.5 million if the Underwriters exercise their
option to purchase additional ordinary shares in full, after deducting underwriting commissions and other estimated offering expenses.
No investor in this Offering benefited from any guaranteed allocation or other similar undertaking from the Company and/or the Underwriters.
The Offering closed on September 27, 2024.
The Offering is being made pursuant to our effective registration statement
on Form F-3 (Registration Statement No. 333-268885) previously filed with the Securities and Exchange Commission and a prospectus
supplement thereunder. The Underwriting Agreement is filed as Exhibit 1.1 to this report, and the description of the terms of the
Underwriting Agreement is qualified in its entirety by reference to such exhibit. The Securities Purchase Agreement is filed as Exhibit 99.1
to this report, and the description of the terms of the Securities Purchase Agreement is qualified in its entirety by reference to such
exhibit. A copy of the opinion of Baker McKenzie BV/SRL relating to the legality of the issuance and sale of the ordinary shares in the
Offering is filed as Exhibit 5.1 to this report.
On September 27, 2024, the Company amended its
Articles of Association to account for a capital increase of 20,000,000 new shares in connection with the Offering. A copy of the English
translation of the amended Articles of Association as of September 27, 2024 is attached as Exhibit 3.1 hereto and is incorporated
by reference herein.
On September 25, 2024, the Company issued two press releases,
copies of which are attached hereto as Exhibits 99.2 and 99.3, respectively.
The information
in the attached Exhibits 99.2 and 99.3 is being furnished and shall not be deemed “filed” for the purposes of Section 18
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section,
nor shall it be deemed incorporated by reference in any filing made by the Company under the Securities Act of 1933, as amended, or the
Exchange Act, except as otherwise set forth herein or as shall be expressly set forth by specific reference in such a filing.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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MDXHEALTH SA |
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| Date: September 30, 2024 |
By: |
/s/ Michael McGarrity |
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Name: |
Michael McGarrity |
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Title: |
Chief Executive Officer |
Exhibit 1.1
18,500,000 Ordinary Shares
MDxHEALTH SA
ORDINARY SHARES
UNDERWRITING AGREEMENT
September 25, 2024
TD Securities
(USA) LLC
William
Blair & Company, L.L.C.
As Representatives of the several Underwriters
c/o TD Securities (USA) LLC
1 Vanderbilt Avenue
New York, New York 10017
William Blair & Company, L.L.C.
150 N. Riverside Plaza
Chicago, Illinois 60606
Ladies and Gentlemen:
| 1. | Introductory. MDxHealth SA, a limited liability company
(naamloze vennootschap/société anonyme) organized under the laws of Belgium (the “Company”),
proposes to issue and sell, pursuant to the terms of this Underwriting Agreement (the “Agreement”), to the several
underwriters named in Schedule A hereto (the “Underwriters,” or, each, an “Underwriter”),
an aggregate of 18,500,000 ordinary shares of the Company, with no nominal value per share (the “Ordinary Shares”).
The aggregate of 18,500,000 Ordinary Shares so proposed to be sold is hereinafter referred to as the “Firm Stock”.
The Company also proposes to sell to the Underwriters, upon the terms and conditions set forth in Section 3(b) hereof, up to an additional
2,775,000 Ordinary Shares (the “Optional Stock”). The Firm Stock and the Optional Stock are hereinafter collectively
referred to as the “Securities”. TD Securities (USA) LLC and William Blair & Company, L.L.C. are acting
as representatives of the several Underwriters (the “Representatives” or “you” or
“your”). |
| 2. | Representations and Warranties of the Company. The
Company represents and warrants to the several Underwriters, as of the date hereof and as of the Closing Date (as defined below), and
agrees with the several Underwriters, that: |
(a) Shelf
Registration Statement. A registration statement of the Company on Form F-3 (File No. 333-268885) (including all amendments thereto,
the “Registration Statement”) in respect of the Securities has been filed with the U.S. Securities and Exchange
Commission (the “Commission”) pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities
Act”). The Company meets the requirements for use of Form F-3 under the Securities Act and the rules and regulations of
the Commission thereunder (the “Rules and Regulations”). The Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto, to you for each of the other Underwriters, have
been declared effective by the Commission in such form and meet the requirements of the Securities Act, and the Rules and Regulations.
The proposed offering of the Securities may be made pursuant to General Instruction I.B.1 of Form F-3. Other than (i) the Registration
Statement, (ii) the Preliminary Prospectus and the Prospectus (each as defined below) contemplated by this Agreement to be filed
pursuant to Rule 424(b) of the Rules and Regulations in accordance with Section 4(a) hereof and (iii) any Issuer Free Writing
Prospectus (as defined below), no other document with respect to the offer and sale of the Securities has heretofore been filed with the
Commission. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto, if any,
has been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act has been initiated or threatened by
the Commission (any preliminary prospectus included in the Registration Statement or filed with the Commission pursuant to Rule 424 of
the Rules and Regulations is hereinafter called a “Preliminary Prospectus”). The Registration Statement including
all exhibits thereto and including the information contained in the Prospectus filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations and deemed by virtue of Rule 430B under the Securities Act to be part of the Registration Statement at the time
it became effective is hereinafter collectively called the “Registration Statement.” If the Company has filed
an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “462(b) Registration Statement”),
then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement.
The final prospectus supplement, in the form filed pursuant to and within the time limits described in Rule 424(b) under the Rules and
Regulations, together with the Base Prospectus, including any document incorporated by reference therein, is hereinafter called the “Prospectus.”
Any reference herein
to the Registration Statement, Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein. Any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary Prospectus or the Prospectus under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be. Any reference to any amendment to the Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the date of this Agreement that is incorporated
by reference in the Registration Statement.
(b) General
Disclosure Package. As of the Applicable Time (as defined below) and as of the Closing Date or the Option Closing Date (as defined
below), as the case may be, neither (i) the General Use Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable
Time, the Pricing Prospectus (as defined below) and the information included on Schedule C hereto, all considered together (collectively,
the “General Disclosure Package”), (ii) any individual Limited Use Free Writing Prospectus (as defined below),
(iii) the bona fide electronic roadshow (as defined in Rule 433(h)(5) of the Rules and Regulations); nor (iv) any individual Written Testing-the-Waters
Communication, when considered together with the General Disclosure Package, included or will include any untrue statement of a material
fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to information
contained in or omitted from the Pricing Prospectus or any Issuer Free Writing Prospectus (as defined below), in reliance upon, and in
conformity with, written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically
for inclusion therein, which information the parties hereto agree is limited to the Underwriter’s Information (as defined in Section
18). As used in this paragraph (b) and elsewhere in this Agreement:
“Applicable Time”
means 6:00 P.M., New York time, on the date of this Agreement or such other time as agreed
to by the Company and the Representatives.
“Pricing Prospectus”
means the Preliminary Prospectus, as amended and supplemented immediately prior to the Applicable Time, including any document incorporated
by reference therein and any prospectus supplement deemed to be a part thereof.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the Rules and Regulations
relating to the Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g) of the Rules and Regulations.
“General Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus that is identified on Schedule B to this Agreement.
“Limited Use Free
Writing Prospectuses” means any Issuer Free Writing Prospectus that is not a General Use Free Writing Prospectus.
“Written Testing-the-Waters
Communication” means any Testing-the-Waters Communication (as defined below) that is a written communication within the
meaning of Rule 405 of the Rules and Regulations.
(c) No
Stop Orders; No Material Misstatements. No order preventing or suspending the use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus relating to the proposed offering of the Securities has been issued by the Commission, and no proceeding
for that purpose or pursuant to Section 8A of the Securities Act has been instituted or threatened by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the Rules
and Regulations, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to information contained in or omitted from any Preliminary Prospectus,
in reliance upon, and in conformity with, written information furnished to the Company through the Representatives by or on behalf of
any Underwriter specifically for inclusion therein, which information the parties hereto agree is limited to the Underwriter’s Information.
(d) Registration
Statement and Prospectus Contents. At the respective times, the Registration Statement and any amendments thereto became or become
effective as to the Underwriters and at each Closing Date, the Registration Statement and any amendments thereto conformed and will conform
in all material respects to the requirements of the Securities Act and the Rules and Regulations and did not and will not contain any
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement
thereto was issued and at each Closing Date, conformed and will conform in all material respects to the requirements of the Securities
Act and the Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided,
however, that the foregoing representations and warranties in this paragraph (d) shall not apply to information contained in or
omitted from the Registration Statement or the Prospectus, or any amendment or supplement thereto, in reliance upon, and in conformity
with, written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion
therein, which information the parties hereto agree is limited to the Underwriter’s Information (as defined below).
(e) Issuer
Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion
of the public offer and sale of the Securities or until any earlier date that the Company notified or notifies the Representatives as
described in Section 4(d)(B), did not, does not and will not include any information that conflicted, conflicts or will conflict with
the information contained in the Registration Statement, Pricing Prospectus or the Prospectus, including any document incorporated by
reference therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified, or included or would
include an untrue statement of a material fact or omitted or would omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided,
however, that the foregoing representations and warranties in this paragraph (e) shall not apply to information contained in or
omitted from the Registration Statement or the Prospectus, or any amendment or supplement thereto, in reliance upon, and in conformity
with, written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion
therein, which information the parties hereto agree is limited to the Underwriter’s Information (as defined below).
(f) Documents
Incorporated by Reference. The documents incorporated by reference in the Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder and none of such documents contained any untrue statement of
a material fact or omitted to state any material fact required to be stated therein, or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference
in the Prospectus, when such documents are filed with the Commission will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(g) Foreign
Private Issuer. The Company is a “foreign private issuer” within the meaning of Rule 405 of the Rules and Regulations.
(h) Emerging
Growth Company. From the first date on which the Company engaged directly or through any person authorized to act on its behalf in
any communication in reliance on Section 5(d) of the Securities Act) through the date hereof, the Company has been and is an “emerging
growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”).
(i) Not
an Ineligible Issuer. At the time of filing the Registration Statement, any Rule 462(b) Registration Statement and any post-effective
amendments thereto, and at the date hereof, the Company was not, and the Company currently is not, an “ineligible issuer,”
as defined in Rule 405 of the Rules and Regulations.
(j) Testing
the Waters Communications. The Company (a) has not engaged in any Testing-the-Waters Communication and (b) has not
authorized anyone to engage in Testing-the-Waters Communications, in each case in respect of the offering of the Securities. The Company
has not distributed any Written Testing-the-Waters Communications in connection with the offering of the Securities. “Testing-the-Waters
Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of
the Securities Act.
(k) No
Other Offering Materials. The Company has not distributed and will not distribute any prospectus or other offering material in connection
with the offering and sale of the Securities other than any Preliminary Prospectus, the General Disclosure Package or the Prospectus or
other materials permitted by the Securities Act to be distributed by the Company; provided, however, that, except as set forth on Schedule
B, the Company has not made and will not make any offer relating to the Securities that would constitute a free writing prospectus,
except in accordance with the provisions of Section 4(l) of this Agreement and, except as set forth on Schedule B, the Company
has not made and will not make any communication relating to the Securities that would constitute a Testing-the-Waters Communication,
except in accordance with the provisions of Section 2(a)(j) of this Agreement.
(l) Absence
of Certain Events. Except as contemplated or reflected in the General Disclosure Package and in the Prospectus, subsequent to the
respective dates as of which information is given in the General Disclosure Package, neither the Company nor any of its subsidiaries has
incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid
any dividends or made any distribution of any kind with respect to its share capital; and there has not been any change in the share capital
(other than a change in the number of outstanding Ordinary Shares due to the issuance of shares upon the exercise of outstanding options
or warrants or conversion of convertible securities), or any material change in the short term or long term debt (other than as a result
of the conversion of convertible securities), or any issuance of options, warrants, convertible securities or other rights to purchase
or subscribe the share capital, of the Company or any of its subsidiaries, or any Material Adverse Effect. “Material Adverse Effect”
shall mean any material adverse change or effect, or any development involving a prospective material adverse change or effect, in or
affecting (i) the business, earnings, assets, liabilities, prospects, properties, condition (financial or otherwise), operations, general
affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, taken
as a whole, or (ii) the ability of the Company to perform its obligations under this Agreement, including the issuance and sale of the
Securities, or to consummate the transactions contemplated in the General Disclosure Package and the Prospectus.
(m) Organization
and Good Standing. Each of the Company and its subsidiaries has been duly organized and is validly existing as a corporation in Good
Standing under the laws of its jurisdiction of incorporation. Each of the Company and its subsidiaries has full corporate power and authority
to own its properties and conduct its business as currently being carried on and as described in the Registration Statement, the General
Disclosure Package and Prospectus, and is duly qualified to do business as a foreign corporation in Good Standing in each jurisdiction
in which it owns or leases real property or in which the conduct of its business makes such qualification necessary and in which the failure
to so qualify would have a Material Adverse Effect. For the purposes of this paragraph, “Good Standing” means
that a company has filed all documents required under applicable law in the relevant jurisdiction.
(n) Absence
of Proceedings. Except as set forth in the General Disclosure Package and in the Prospectus, there is not pending or, to the knowledge
of the Company, threatened or contemplated, any action, suit or proceeding (a) to which the Company or any of its subsidiaries is a party
or (b) which has as the subject thereof any officer or director of the Company or any subsidiary, any employee benefit plan sponsored
by the Company or any subsidiary or any property or assets owned or leased by the Company or any subsidiary before or by any court or
Governmental Authority (as defined below), or any arbitrator, which, would individually or in the aggregate, result in any Material Adverse
Effect or which are otherwise material in the context of the sale of the Securities. There are no current or, to the knowledge of the
Company, pending, legal, governmental or regulatory actions, suits or proceedings (x) to which the Company or any of its subsidiaries
is subject or (y) which has as the subject thereof any officer or director of the Company or any subsidiary, any employee plan sponsored
by the Company or any subsidiary or any property or assets owned or leased by the Company or any subsidiary, that are required to be described
in the Registration Statement, General Disclosure Package and Prospectus by the Securities Act or by the Rules and Regulations and that
have not been so described.
(o) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding
obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by applicable
laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally and subject to general principles of equity.
(p) Capitalization;
the Securities; Registration Rights. All of the issued and outstanding shares of the Company (including the outstanding Ordinary Shares),
are duly authorized and validly issued, fully paid and non-assessable, have been issued in compliance with all federal and state and foreign
securities laws, including Belgian securities laws and were not issued in violation of or subject to any preemptive rights or other rights
to subscribe for or purchase securities that have not been cancelled (a copy of which has been delivered to counsel to the Representatives),
and the holders thereof are not subject to personal liability by reason of being such holders; the Securities have been duly authorized
and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully
paid and non-assessable, and the holders thereof will not be subject to personal liability by reason of being such holders; and the share
capital of the Company, including the Ordinary Shares, conforms to the description thereof in the Registration Statement, in the General
Disclosure Package and in the Prospectus. Except as otherwise stated in the Registration Statement, in the General Disclosure Package
and in the Prospectus, and except for such statutory preferential subscription rights of the existing shareholders of the Company as shall
be dis-applied (A) there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting
or transfer of, any Ordinary Shares pursuant to the Company’s articles of association or any agreement or other instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or under Belgian company
law, and (B) neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement
gives rise to any rights for or relating to the registration of any Ordinary Shares or other securities of the Company (collectively “Registration
Rights”). All of the issued and outstanding shares of each of the Company’s subsidiaries have been duly and validly
authorized and issued and are fully paid and non-assessable, and, except as otherwise described in the Registration Statement, in the
General Disclosure Package and in the Prospectus, the Company owns of record and beneficially, free and clear of any security interests,
claims, liens, proxies, equities or other encumbrances, all of the issued and outstanding shares. The Company has an authorized and outstanding
capitalization as set forth in the Registration Statement, in the General Disclosure Package and in the Prospectus under the caption “Capitalization.”
The Ordinary Shares (including the Securities) conform in all material respects to the description thereof contained in the General Disclosure
Package and the Prospectus. For the purposes of this paragraph “non-assessable” means that a holder of the relevant securities
will not by reason of merely being such a holder, be subject to assessment or calls by the Company or its creditors for further payment
on such securities upon voting or transfer or any other claim of any third party.
(q) Share
Options. Except as described in the Registration Statement, in the General Disclosure Package and in the Prospectus, there are no
options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company or any subsidiary of the
Company any shares of the Company or any subsidiary of the Company. The description of the Company’s share option, warrants, share
bonus and other share plans or arrangements (the “Company Share Plans”), and the options and warrants (together,
the “Options”) or other rights granted thereunder, set forth in the General Disclosure Package and the Prospectus
accurately and fairly presents the information required to be shown with respect to such plans, arrangements, options, warrants and rights.
Each grant of an Option (A) was duly authorized no later than the date on which the grant of such Option was by its terms to be effective
by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted
and authorized committee or representative thereof) and any required shareholder approval by the necessary number of votes or written
consents, and the award agreement governing such grant (if any) was duly executed and delivered and (B) was made in accordance with the
terms of the applicable Company Share Plan, and all applicable laws and regulatory rules or requirements, including all applicable United
States federal and Belgian securities laws.
(r) No
Conflicts; Authority. The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated
will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries
pursuant to any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, (B) result in any violation of the provisions of the Company’s articles of association or
(C) result in the violation of any law or statute or any judgment, order, rule, regulation or decree of any court or arbitrator or federal,
state, local or foreign (including Belgian), governmental agency or regulatory authority having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets (each, a “Governmental Authority”), except in the case
of clause (A) as would not result in a Material Adverse Effect. No consent, approval, authorization or order of, or registration or filing
with any Governmental Authority is required for the execution, delivery and performance of this Agreement or for the consummation of the
transactions contemplated hereby, including the issuance or sale of the Securities by the Company, except (1) such as may be required
under the Securities Act, the rules of the Financial Industry Regulatory Authority (“FINRA”) or state securities
or blue sky laws and (2) for the listing of the Securities on The Nasdaq Capital Market (the “Exchange”); and
the Company has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including
the authorization, issuance and sale of the Securities as contemplated by this Agreement.
(s) Financial
Statements. The financial statements of the Company, together with the related notes, set forth in the Registration Statement, the
General Disclosure Package and Prospectus comply in all material respects with the requirements of the Securities Act and fairly present
the financial condition of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations and changes
in cash flows for the periods therein specified in conformity with international financial reporting standards (“IFRS”)
consistently applied throughout the periods involved; the supporting schedules included in the Registration Statement present fairly the
information required to be stated therein; all non-IFRS financial information included in the Registration Statement, the General Disclosure
Package and the Prospectus complies with the requirements of Regulation G and Item 10 of Regulation S-K under the Securities Act; and,
except as disclosed in the General Disclosure Package and the Prospectus, there are no material off-balance sheet arrangements (as defined
in Regulation S-K under the Securities Act, Item 303(a)(4)(ii)) or any other relationships with unconsolidated entities or other persons,
that may have a material current or, to the Company’s knowledge, material future effect on the Company’s financial condition,
results of operations, liquidity, capital expenditures, capital resources or significant components of revenue or expenses. The pro forma
and pro forma as adjusted financial information and the related notes included or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus have been properly compiled and prepared in accordance with the applicable requirements
of Rule 11-02 of Regulation S-X under the Securities Act and present fairly the information shown therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances
referred to therein. No other financial statements or schedules are required to be included in the Registration Statement, the General
Disclosure Package or the Prospectus. BDO Réviseurs d’Entreprises SRL, which has expressed its opinion with respect to the
financial statements and schedules filed as a part of the Registration Statement and included in the Registration Statement, the General
Disclosure Package and the Prospectus, is (x) an independent public accounting firm within the meaning of the Securities Act and the Rules
and Regulations, (y) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”)) and (z) not in violation of the auditor independence requirements of the Sarbanes-Oxley Act.
(t) Compliance
with Laws. The Company and each of its subsidiaries holds, and is operating in compliance in all material respects with, all franchises,
grants, authorizations, licenses, permits, easements, consents, certificates and orders of any Governmental Authority or self-regulatory
body required for the conduct of its business and all such franchises, grants, authorizations, licenses, permits, easements, consents,
certifications and orders are valid and in full force and effect; and neither the Company nor any of its subsidiaries has received notice
of any revocation or modification of any such franchise, grant, authorization, license, permit, easement, consent, certification or order
or has reason to believe that any such franchise, grant, authorization, license, permit, easement, consent, certification or order will
not be renewed in the ordinary course; and the Company and each of its subsidiaries is in compliance in all material respects with all
applicable federal, state, local, Belgian and foreign laws, regulations, orders and decrees.
(u) Ownership
of Assets. The Company and its subsidiaries have good and marketable title to all property (whether real or personal) described in
the Registration Statement, in the General Disclosure Package and in the Prospectus as being owned by them, in each case free and clear
of all liens, claims, security interests, other encumbrances or defects except such as are described in the Registration Statement, in
the General Disclosure Package and in the Prospectus. The property held under lease by the Company and its subsidiaries is held by them
under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any
material respect with the conduct of the business of the Company or its subsidiaries.
(v) Intellectual
Property. The Company and each of its subsidiaries owns, possesses, licenses, have rights to use on reasonable terms or can acquire
on reasonable terms, all Intellectual Property necessary for the conduct of the Company’s and its subsidiaries’ business as
now conducted or as proposed to be conducted, as described in the Registration Statement, the General Disclosure Package and the Prospectus.
The Company and its subsidiaries have complied in all material respects with the terms of each agreement pursuant to which Intellectual
Property is licensed to the Company or any subsidiary, and all such agreements are in full force and effect. Furthermore, (A) to the knowledge
of the Company, there is no infringement, misappropriation or violation by third parties of any Intellectual Property purported to be
owned by the Company and its subsidiaries (“Company Owned Intellectual Property”); (B) there is no pending or,
to the knowledge of the Company, threatened, action, suit, proceeding or claim by others challenging the Company’s or any of its
subsidiaries’ rights in or to any such Intellectual Property, neither the Company nor any of its subsidiaries has received any notice
of any such claim, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (C) except as contemplated
or provided for by the OrbiMed Credit Documents (defined below) as described in the Registration Statement, there are no third parties
who have rights to any Company Owned Intellectual Property, including liens, security interest, or other encumbrances, except for (i)
customary reversionary rights of third-party licensors with respect to Intellectual Property that is disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus as licensed to the Company or one or more of its subsidiaries or (ii) rights or Intellectual
Property that are not material to the Company; (D) the Company Owned Intellectual Property, and to the knowledge of the Company, the Intellectual
Property licensed to the Company and its subsidiaries, has not been adjudged invalid or unenforceable, in whole or in part, and there
is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the validity or
scope of any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim;
(E) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others that the Company or
any of its subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property or other proprietary rights of others,
neither the Company or any of its subsidiaries has received any written notice of such claim and the Company is unaware of any other fact
which would form a reasonable basis for any such claim; (F) the conduct of the Company’s and its subsidiaries’ business as
now conducted or as proposed to be conducted does not and will not infringe or otherwise violate any Intellectual Property or other proprietary
right of any third party; (G) to the Company’s knowledge, no employee of the Company or any of its subsidiaries is in or has ever
been in violation of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition
agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis
of such violation relates to such employee’s employment with the Company or any of its subsidiaries or actions undertaken by the
employee while employed with the Company or any of its subsidiaries; (H) there is no prior art or public or commercial activity of which
the Company is aware that may render any patent included in the Company Owned Intellectual Property invalid or that would preclude the
issuance of any patent on any patent application included in such Intellectual Property, which has not been disclosed to the U.S. Patent
and Trademark Office or the relevant foreign patent authority, as the case may be; (I) to the Company’s knowledge, the issued patents
included in the Intellectual Property of the Company are valid and enforceable and the Company is unaware of any facts that would preclude
the issuance of a valid and enforceable patent on any pending patent application included in such Intellectual Property; (J) the Company
has taken reasonable steps necessary to secure the interests of the Company in the Company Owned Intellectual Property from all employees,
consultants, agents or contractors that developed (in whole or in part) such Intellectual Property; (K) except as disclosed in the General
Disclosure Package and the Prospectus, no government funding, facilities or resources of a university, college, other educational institution
or research center was used in the development of any Intellectual Property that is owned or purported to be owned by the Company that
would confer upon any governmental agency or body, university, college, other educational institution or research center any claim or
right in or to any such Intellectual Property; (L) to the Company’s knowledge, none of the technology employed by the Company has
been obtained or is being used by the Company in violation of the rights of any entity; (M) the Company and its subsidiaries have taken
commercially reasonable actions to protect the secrecy any trade secrets and other confidential information owned by or otherwise in the
possession of the Company or one of its subsidiaries; and (N) all patents and patent applications owned by or licensed to the Company
or any of its subsidiaries have been duly and properly filed, prosecuted and maintained in all material respects, have been assigned to
the Company or the licensor to the Company, and the patents are subsisting and have not lapsed and the patent applications in the Intellectual
Property are subsisting and have not been abandoned. “Intellectual Property” shall mean all patents, patent applications,
trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, domain names,
technology, know-how and other intellectual property in the United States and foreign jurisdictions. For the purposes of this Agreement,
“OrbiMed Credit Documents” means the OrbiMed Credit Agreement and Pledge and Security Agreement, each dated
May 1, 2024, and included as Exhibit 4.1 and Exhibit 4.2, respectively, to the Report on Form 6-K filed by the Company with the Commission
on May 1, 2024, as amended.
(w) Regulatory
and Health Care Authorizations. The Company has submitted and possesses, or qualifies for applicable exemptions to, such valid and
current registrations, listings, approvals, clearances, licenses, classifications, exemptions, certificates, authorizations or permits
and supplements or amendments thereto issued or required by the appropriate Governmental Authority or designated organization necessary
to conduct its business (“Permits”), including, without limitation, all such Permits required by the U.S. Department
of Health and Human Services (“HHS”) (including the U.S. Food and Drug Administration (the “FDA”)
and the U.S. Centers for Medicare & Medicaid Services (“CMS”)), state Medicaid agencies, Canadian Governmental
Authorities (including for example, “Health Canada”), European Medicines Agency (“EMA”),
European Union member state national competent authorities (“NCAs”) or any other comparable local, state, federal
or foreign agencies or bodies to which it is subject, and the Company has not received any notice of proceedings relating to the revocation
or modification of, or material non-compliance with, any such Permit, except for such Permits, the lack of which would not, individually
or in the aggregate, result in a Material Adverse Effect.
(x) Legal
Proceedings. Except as set forth in the General Disclosure Package, there is no legal or governmental proceeding to which the Company
or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject, including
any proceeding before the FDA or comparable federal, state, local or foreign governmental bodies (it being understood that the interaction
between the Company and the FDA and such comparable governmental bodies relating to the clinical development and product approval process
shall not be deemed proceedings for purposes of this representation), which is required to be described in the Registration Statement,
the General Disclosure Package or the Prospectus or a document incorporated by reference therein and is not described therein, or which,
singularly or in the aggregate, if determined adversely to the Company or any of its subsidiaries, could reasonably be expected to have
a Material Adverse Effect; and no such proceedings are threatened or, to the Company’s knowledge after reasonable investigation
and due diligence inquiry (“Knowledge”), contemplated by governmental or regulatory authorities or threatened
by others. The Company is in compliance with all applicable federal, state, local and foreign laws, regulations, orders and decrees governing
its business as prescribed by the FDA, or any other federal, state or foreign agencies or bodies engaged in the regulation of pharmaceuticals
or biohazardous substances or materials, except where noncompliance would not, singly or in the aggregate, have a Material Adverse Effect.
All preclinical and clinical studies conducted by or on behalf of the Company to support approval for commercialization of the Company’s
products have been conducted by the Company, or to the Company’s Knowledge by third parties, in compliance with all applicable federal,
state or foreign laws, rules, orders and regulations, except for such failure or failures to be in compliance as could not reasonably
be expected to have, singly or in the aggregate, a Material Adverse Effect. Neither the Company nor any of its subsidiaries is a party
to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed
by any governmental or regulatory authority. Additionally, neither the Company, any of its subsidiaries nor any of their respective employees,
officers, directors, or agents has been excluded, suspended or debarred from participation in any U.S. federal health care program or
human clinical research or, to the knowledge of the Company, is subject to a governmental inquiry, investigation, proceeding, or other
similar action that could reasonably be expected to result in debarment, suspension, or exclusion.
(y) Clinical
Validation Studies and Other Studies and Clinical Trials. To the extent applicable, the analytical and clinical validation studies
and other tests and studies, and any preclinical and clinical trials conducted by or on behalf of, or sponsored by, the Company, or in
which the Company has participated, that are described in the Registration Statement, the General Disclosure Package or the Prospectus,
or the results of which are referred to in the Registration Statement, the General Disclosure Package or the Prospectus, were and, if
still pending, are being conducted in all material respects in accordance with all applicable Health Care Laws, standard medical and scientific
research procedures and any applicable rules, regulations and policies of the jurisdiction in which such trials, studies and investigations
are being conducted; the descriptions of the results of such studies, tests and trials contained in the Registration Statement, the General
Disclosure Package or the Prospectus do not contain any misstatement of a material fact or omit a material fact necessary to make such
statements not misleading; the Company has no knowledge of any studies, tests or trials not described in the Disclosure Package and the
Prospectus the results of which reasonably call into question in any material respect the results of the studies, tests and trials described
in the Registration Statement, the General Disclosure Package or Prospectus; and the Company has not received any notices or other correspondence
from the FDA, Health Canada, EMA, the European Union NCAs, or any other foreign, state or local governmental body exercising comparable
authority or any Institutional Review Board or comparable authority or designated organization requiring or threatening the termination,
suspension or material modification of any studies, tests or preclinical or clinical trials conducted by or on behalf of, or sponsored
by, the Company or in which the Company has participated, and, to the Company’s knowledge, there are no reasonable grounds for the
same. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there has not been any violation
of law or regulation by the Company in its respective product development efforts, submissions or reports to any regulatory authority
that could reasonably be expected to require investigation, corrective action or enforcement action.
(z) Compliance
with Health Care Laws. The Company, its directors, employees and, to the Company’s knowledge, its agents are and at all times
have been in material compliance with, all health care laws applicable to the Company, its products or services and activities, including,
without limitation, (i) the Clinical Laboratory Improvement Amendments of 1988 as amended (42 U.S.C. § 263a), and all similar additionally
applicable state laws, including state laws governing the qualification and licensure, accreditation, certification and operation of clinical
laboratories and related personnel, (ii) all foreign, federal, state, and local health care fraud and abuse laws, including but not limited
to, the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), the
civil False Claims Act (31 U.S.C. § 3729 et seq.), the criminal False Claims Law (42 U.S.C. § 1320a-7b(a)), the Medicare and
Medicaid exclusion laws (42 U.S.C. § 1320a-7), the Medicare physician self-referral law (“Stark Law”) (42
U.S.C. § 1395nn), to the extent applicable the Physician Payments Sunshine Act (42 U.S.C. § 1320a-7h) and other transparency
laws, all criminal laws relating to health care fraud and abuse, including, but not limited to, 18 U.S.C. §§ 286, 287, 1001
and 1347, and the health care fraud criminal provisions under the U.S. Health Insurance Portability and Accountability Act of 1996 (42
U.S.C. § 1320d et seq.) (“HIPAA”), (iii) HIPAA, as amended by the Health Information Technology for Economic
and Clinical Health Act (“HITECH”), (42 U.S.C. § 17921 et seq.), (iv) the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. § 301 et seq.) its implementing regulations, related guidance and policies, (v) the federal Medicare statute (Title
XVIII of the Social Security Act), (vi) the federal Medicaid statute (Title XIX of the Social Security Act), (vii) the Federal Trade Commission
Act, (viii) in the case of each of the foregoing clauses, as amended and together with the regulations promulgated pursuant to such laws,
and (ix) any other local, state, federal or foreign law, or regulation, or legally binding accreditation standard, memorandum, opinion
letter, or other issuance which imposes legal requirements on manufacturing, developing, testing, labeling, advertising, marketing, promoting,
distributing, reporting, offering or receiving kickbacks, patient or program charges, recordkeeping, claims processes, documentation requirements,
medical necessity, referrals, the hiring of employees, contracting of independent contractors or acquisition of services or supplies from
those who have been excluded from government health care programs, quality, safety, privacy, security, licensure, accreditation or any
other aspect of the research, design, testing, development, sale, marketing, promotion, advertising, ownership, manufacture, packaging,
processing, use, distribution, storage, or disposal of medical devices and health care items and services (collectively, “Health
Care Laws”). The Company has not received any notification, correspondence or any other written or oral communication concerning
any materially adverse action by any applicable Governmental Authority, including notification of any pending or threatened claim, suit,
proceeding, hearing, enforcement, investigation, arbitration or other action from any Governmental Authority, including, without limitation,
the FDA, the European Union NCAs, the U.S. Federal Trade Commission, CMS, stated Medicaid agencies, HHS’s Office of Inspector General,
the U.S. Department of Justice and state Attorneys General or similar agencies or Governmental Authorities, of potential or actual material
violation or non-compliance by, or liability of, the Company under any Health Care Laws. To the Company’s knowledge, there are no
facts or circumstances that would reasonably be expected to give rise to material liability of the Company under any Health Care Laws.
The Company is not a party to, and has no ongoing reporting obligations pursuant to, any corporate integrity agreements, deferred prosecution
agreements, monitoring agreements, consent decrees, settlement orders, plans of correction or similar agreements with or imposed by any
Governmental Authority. Additionally, neither the Company nor any of its employees, officers, directors, or, to the knowledge of the Company,
agents, has been excluded, suspended or debarred from participation in any government health care program or human research study, clinical
trial or investigation or, to the knowledge of the Company, is subject to an inquiry, investigation, proceeding, or other similar action
by any Government Authority that would reasonably be expected to result in debarment, suspension, or exclusion.
(aa) Post-Commercialization
Reporting Obligations. The Company is complying in all material respects with all applicable regulatory post-commercialization reporting
obligations, including, without limitation, adverse event reporting requirements set forth by the EU Medical Devices Directives, as applicable,
and, to the extent applicable, their national implementing laws in the European Union member states.
(bb) No Shutdowns
or Prohibitions. The Company has not had any product or services, clinical laboratory or facility or manufacturing or service-provider
site (whether Company-owned or that of a third party in relation to the Company’s laboratory test offerings) subject to a Governmental
Authority (including CMS, state laboratory authorities, or FDA) shutdown or import or export prohibition, nor received any Governmental
Authority or designated organization notice of inspectional observations, warning letters, untitled letters, requests to make changes
to any Company products, services, processes or operations (including for example, any changes impacting the regulatory status and compliance
oversight of any Company products or services, processes or operations), or similar correspondence or notice from the FDA or other governmental
authority or designated organization alleging or asserting material noncompliance with any applicable Health Care Laws. To the Company’s
knowledge, neither the FDA nor any other Governmental Authority or designated organization is considering such action.
(cc) No Safety
Notices. (i) Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there have been
no recalls, warnings, safety alerts or other notifications or notice of action required or made to regulatory authorities, healthcare
professionals, laboratories, or patients, relating to any alleged or potential performance or accuracy failure(s) of testing services
offered, or lack of safety, or regulatory compliance of Company products or services or any items used in connection therewith (“Safety
Notices”) and (ii) to the Company’s knowledge, there are no facts that would be reasonably likely to result in (x)
a Safety Notice with respect to the Company’s products or services, (y) a change in labeling of any the Company’s respective
products or services, or (z) a termination or suspension of marketing or testing of any the Company’s products or services.
(dd) No Violations
or Defaults. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company
nor any of its subsidiaries (i) is in violation of its articles of association, charter or by-laws (or similar organizational documents),
(ii) is in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant, condition or other obligation contained in any indenture, mortgage, deed of trust, loan
agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or
assets is subject, or (iii) is in violation of any statute or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over it or its property or assets or has failed to obtain any license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to the conduct of its business, except in the case of clauses (ii)
and (iii), to the extent any such conflict, breach, violation or default would not, individually or in the aggregate, result in a Material
Adverse Effect.
(ee) Taxes.
The Company and its subsidiaries have timely filed all federal, state, local and foreign income and franchise and any other tax returns
required to be filed and are not in default in the payment of any taxes which were payable pursuant to said returns or any assessments
with respect thereto, other than any which the Company or any of its subsidiaries is contesting in good faith. There is no pending dispute
with any taxing authority relating to any of such returns, and the Company has no knowledge of any proposed liability for any tax to be
imposed upon the properties or assets of the Company or any of its subsidiaries for which there is not an adequate reserve reflected in
the Company’s financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus. The
statements set forth in the Registration Statement under the caption “Taxation”, insofar as it purports to describe the provisions
of the laws and documents referred to therein, are accurate, complete and fair in all material respects.
(ff) Stamp Taxes.
No stamp, registration, sales, documentary, capital, issuance, transfer or other similar taxes or duties (“Stamp Taxes”)
are payable by or on behalf of the Underwriters in any Relevant Taxing Jurisdiction on or in connection with (i) the creation, issuance
or delivery by the Company of the Securities, (ii) the purchase by the Underwriters of the Securities in the manner contemplated by this
Agreement, (iii) the resale and delivery by the Underwriters of the Securities in the manner contemplated by this Agreement, (iv) the
execution and delivery of this Agreement, or (vii) the consummation or completion of the transactions contemplated by this Agreement,
except for (i) a Belgian stock exchange tax, if the Underwriters act, for purposes of the Belgian stock exchange tax, as a professional
intermediary on behalf of purchasers of Securities with habitual residence, seat, or establishment in Belgium in relation to the purchase
of Securities (secondary market transaction) or if the relevant Underwriter is resident in Belgium for tax purposes or carries on business
through an establishment in Belgium (in both cases unless an exemption applies), (ii) a Belgian annual securities account tax, if the
Underwriters hold the Securities on a securities account with a Belgian financial intermediary or if the relevant Underwriter is a resident
in Belgium for tax purposes or carries on business through an establishment in Belgium (in both cases unless an exemption applies), (iii)
documentary duties that could become due on deeds and certificates issued by Belgian officials (notaries, bailiffs and clerks) and banking
institutions, ranging from EUR 0.15 to EUR 100, provided that such deeds and certificates are drawn up or executed in Belgium and (iv)
a general, fixed registration tax of EUR 50 due on the voluntary registration in Belgium of any document.
(gg) Passive
Foreign Investment Company. The Company does not believe that it was a “passive foreign investment company” (“PFIC”)
for U.S. federal income tax purposes for the taxable year ended December 31, 2023 and it does not expect to be treated as a PFIC for the
current taxable year.
(hh) Exchange
Listing and Exchange Act Registration. The Securities have been approved for listing on the Exchange upon official notice of issuance
and are included or approved for listing on the Exchange, and the Company has taken no action designed to, or likely to have the effect
of, terminating the registration of the Ordinary Shares under the Exchange Act or delisting the Ordinary Shares from the Exchange nor
has the Company received any written notification that the Commission or the Exchange is contemplating terminating such registration or
listing. Except as previously disclosed to counsel for the Underwriters or as set forth in the General Disclosure Package and the Prospectus,
there are no affiliations with members of FINRA among the Company’s officers or directors or, to the knowledge of the Company, any
five percent or greater stockholders of the Company or any beneficial owner of the Company’s unregistered equity securities that
were acquired during the 180-day period immediately preceding the initial filing date of the Registration Statement.
(ii) Ownership
of Other Entities. Other than the subsidiaries of the Company listed in Exhibit 8.1 to the Form 20-F incorporated by reference into
the Registration Statement, the Company, directly or indirectly, owns no capital stock or other equity or ownership or proprietary interest
in any corporation, partnership, association, trust or other entity.
(jj) Internal
Controls. The Company and its subsidiaries maintain a system of “internal controls over financial reporting” (as defined
in Rule 13a-15(f) of the Exchange Act) sufficient to provide reasonable assurances that (i) transactions are executed in accordance with
management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements
in conformity with international financial reporting standards as issued by the International Accounting Standards Board and to maintain
accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
(iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with
respect to any differences and (v) any interactive data in eXtensible Business Reporting Language included or incorporated by reference
in the Registration Statement, the Prospectus and the General Disclosure Package fairly presents the information called for in all material
respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as disclosed in the
Registration Statement, in the General Disclosure Package and in the Prospectus, the Company’s internal control over financial reporting
is effective and none of the Company, its board of directors and audit committee is aware of any “significant deficiencies”
or “material weaknesses” (each as defined by the Public Company Accounting Oversight Board) in its internal control over financial
reporting, or any fraud, whether or not material, that involves management or other employees of the Company and its subsidiaries who
have a significant role in the Company’s internal controls; and since the end of the latest audited fiscal year, there has been
no change in the Company’s internal control over financial reporting (whether or not remediated) that has materially affected, or
is reasonably likely to materially affect, the Company’s internal control over financial reporting. The Company’s board of
directors has, subject to the exceptions, cure periods and the phase in periods specified in the applicable stock exchange rules (“Exchange
Rules”), validly appointed an audit committee to oversee internal accounting controls whose composition satisfies the applicable
requirements of the Exchange Rules and the Company’s board of directors and/or the audit committee has adopted a charter that satisfies
the requirements of the Exchange Rules.
(kk) No Brokers
or Finders. Other than as contemplated by this Agreement, the Company has not incurred and will not incur any liability for any finder’s
or broker’s fee or agent’s commission in connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
(ll) Insurance.
The Company and each of its subsidiaries carries, or is covered by, insurance from reputable insurers in such amounts and covering such
risks as is adequate for the conduct of its business and the value of its properties and the properties of its subsidiaries and as is
customary for companies engaged in similar businesses in similar industries; all policies of insurance and any fidelity or surety bonds
insuring the Company or any of its subsidiaries or its business, assets, employees, officers and directors are in full force and effect;
the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; there are
no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability
or defending under a reservation of rights clause; neither the Company nor any of its subsidiaries has been refused any insurance coverage
sought or applied for; and neither the Company nor any of its subsidiaries has reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not result in a Material Adverse Effect.
(mm) Investment
Company Act. The Company is not, and after giving effect to the sale of the Securities in accordance with this Agreement and the application
of proceeds as described in the Prospectus under the caption “Use of Proceeds,” will not be, required to be registered as
an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(nn) Sarbanes-Oxley
Act. The Company is in compliance with all applicable provisions of the Sarbanes-Oxley Act and the rules and regulations of the Commission
thereunder.
(oo) Disclosure
Controls. The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined
in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed to ensure that
information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures
designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure
controls and procedures as required by Rule 13a-15 of the Exchange Act.
(pp) Anti-Bribery
and Anti-Money Laundering Laws. Each of the Company and its subsidiaries and, to the knowledge of the Company, any of its affiliates
and its and its subsidiaries’ respective officers, directors, supervisors, managers, agents, or employees, has not violated, its
participation in the offering will not violate, and the Company and each of its subsidiaries has instituted and maintains policies and
procedures designed to ensure continued compliance with, each of the following laws: (A) anti-bribery laws, including but not limited
to, any applicable law, rule, or regulation of any locality, including but not limited to any law, rule, or regulation promulgated to
implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December
17, 1997, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act 2010, or any other law, rule or regulation
of similar purposes and scope or (B) anti-money laundering laws, including but not limited to, applicable federal, state, international,
foreign or other laws, regulations or government guidance regarding anti-money laundering, including, without limitation, Title 18 U.S.
Code section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money laundering principles or procedures by
an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is
a member and with which designation the United States representative to the group or organization continues to concur, all as amended,
and any Executive order, directive, or regulation pursuant to the authority of any of the foregoing, or any orders or licenses issued
thereunder.
(qq) Compliance
with OFAC.
(A) Neither
the Company nor any of its subsidiaries, nor any director, officer or employee thereof, nor, to the Company’s knowledge, any agent,
affiliate, representative or other person acting on behalf of the Company or any of its subsidiaries, is an individual or entity (“Person”)
that is, or is owned or controlled by a Person that is: (i) the subject of any sanctions administered or enforced by the U.S. Department
of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council, the European
Union (“EU”), His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”),
nor (ii) located, organized or resident in a country or territory that is the subject of a U.S. government embargo (including, without
limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of Ukraine,
Cuba, Iran, North Korea and Syria).
(B) The
Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other Person: (i) to fund or facilitate any activities or business of or with any Person that,
at the time of such funding or facilitation, is the subject of Sanctions, or in any country or territory that, at the time of such funding
or facilitation, is the subject of a U.S. government embargo; or (ii) in any other manner that will result in a violation of Sanctions
by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(C) Since
April 24, 2019, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage
in, any direct or indirect dealings or transactions with any Person that at the time of the dealing or transaction is or was the subject
of Sanctions or any country or territory that, at the time of the dealing or transaction is or was the subject of a U.S. government embargo.
(rr) Compliance
with Environmental Laws. Neither the Company nor any of its subsidiaries is in violation of any statute, any rule, regulation, decision
or order of any Governmental Authority or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively,
“Environmental Laws”), owns or operates any real property contaminated with any substance that is subject to
any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any
claim relating to any Environmental Laws, which violation, contamination, liability or claim would individually or in the aggregate, result
in a Material Adverse Effect; and the Company is not aware of any pending investigation which would lead to such a claim. Neither the
Company nor any of its subsidiaries anticipates incurring any material capital expenditures relating to compliance with Environmental
Laws.
(ss) Compliance
with Occupational Laws. The Company and each of its subsidiaries (A) is in compliance, in all material respects, with any and all
applicable foreign, federal, state and local laws, rules, regulations, treaties, statutes and codes promulgated by any and all Governmental
Authorities (including pursuant to the Occupational Health and Safety Act) relating to the protection of human health and safety in the
workplace (“Occupational Laws”); (B) has received all material permits, licenses or other approvals required
of it under applicable Occupational Laws to conduct its business as currently conducted; and (C) is in compliance, in all material respects,
with all terms and conditions of such permit, license or approval. No action, proceeding, revocation proceeding, writ, injunction or claim
is pending or, to the Company’s knowledge, threatened against the Company or any of its subsidiaries relating to Occupational Laws,
and the Company does not have knowledge of any facts, circumstances or developments relating to its operations or cost accounting practices
that could reasonably be expected to form the basis for or give rise to such actions, suits, investigations or proceedings.
(tt) ERISA
and Employee Benefits Matters. (A) To the knowledge of the Company, no “prohibited transaction” as defined under Section
406 of ERISA or Section 4975 of the Code and not exempt under ERISA Section 408 and the regulations and published interpretations thereunder
has occurred with respect to any Employee Benefit Plan. At no time has the Company or any ERISA Affiliate maintained, sponsored, participated
in, contributed to or has or had any liability or obligation in respect of any Employee Benefit Plan subject to Part 3 of Subtitle B of
Title I of ERISA, Title IV of ERISA, or Section 412 of the Code or any “multiemployer plan” as defined in Section 3(37) of
ERISA or any multiple employer plan for which the Company or any ERISA Affiliate has incurred or could incur liability under Section 4063
or 4064 of ERISA. No Employee Benefit Plan provides or promises, or at any time provided or promised, retiree health, life insurance,
or other retiree welfare benefits except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended,
or similar state law. Each Employee Benefit Plan is and has been operated in material compliance with its terms and all applicable laws,
including but not limited to ERISA and the Code and, to the knowledge of the Company, no event has occurred (including a “reportable
event” as such term is defined in Section 4043 of ERISA) and no condition exists that would subject the Company or any ERISA Affiliate
to any material tax, fine, lien, penalty or liability imposed by ERISA, the Code or other applicable law. Each Employee Benefit Plan intended
to be qualified under Code Section 401(a) is so qualified and has a favorable determination or opinion letter from the IRS upon which
it can rely, and any such determination or opinion letter remains in effect and has not been revoked; to the knowledge of the Company,
nothing has occurred since the date of any such determination or opinion letter that is reasonably likely to adversely affect such qualification;
(B) with respect to each Foreign Benefit Plan, such Foreign Benefit Plan (1) if intended to qualify for special tax treatment, meets,
in all material respects, the requirements for such treatment, and (2) if required to be funded, is funded to the extent required by applicable
law, and with respect to all other Foreign Benefit Plans, adequate reserves therefor have been established on the accounting statements
of the applicable Company or subsidiary; (C) the Company does not have any obligations under any collective bargaining agreement with
any union and no organization efforts are underway with respect to Company employees. As used in this Agreement, “Code”
means the Internal Revenue Code of 1986, as amended; “Employee Benefit Plan” means any “employee benefit
plan” within the meaning of Section 3(3) of ERISA, including, without limitation, all stock purchase, stock option, stock-based
severance, employment, change-in-control, medical, disability, fringe benefit, bonus, incentive, deferred compensation, employee loan
and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, under which
(x) any current or former employee, director or independent contractor of the Company or its subsidiaries has any present or future right
to benefits and which are contributed to, sponsored by or maintained by the Company or any of its respective subsidiaries or (y) the Company
or any of its subsidiaries has had or has any present or future obligation or liability; “ERISA” means the Employee
Retirement Income Security Act of 1974, as amended; “ERISA Affiliate” means any member of the company’s
controlled group as defined in Code Section 414(b), (c), (m) or (o); and “Foreign Benefit Plan” means any Employee
Benefit Plan established, maintained or contributed to outside of the United States or which covers any employee working or residing outside
of the United States.
(uu) Business
Arrangements. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, other than ordinary
course manufacturing arrangements, non-exclusive U.S. distribution agreements and distribution agreements outside the U.S., neither the
Company nor any of its subsidiaries has granted rights to develop, manufacture, produce, assemble, distribute, license, market or sell
its products to any other person and is not bound by any agreement that affects the exclusive right of the Company or such subsidiary
to develop, manufacture, produce, assemble, distribute, license, market or sell its products.
(vv) Labor
Matters. No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or is threatened or imminent,
and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal
suppliers, contractors or customers, that could result in a Material Adverse Effect.
(ww) Restrictions
on Subsidiary Payments to the Company. No subsidiary of the Company is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any
loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company
or any other subsidiary of the Company, except as described in or contemplated by the General Disclosure Package and the Prospectus.
(xx) Disclosure
of Legal Matters. There are no statutes, regulations, legal or governmental proceedings or contracts or other documents required to
be described in the General Disclosure Package or in the Prospectus or included as exhibits to the Registration Statement that are not
described or included as required.
(yy) Statistical
Information. Any third-party statistical and market-related data included in the Registration Statement, the General Disclosure Package
and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate in all material respects.
(zz) Forward-looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in the Registration Statement, the General Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(aaa) FinCEN
Matters. All of the beneficial ownership information provided to the Underwriters or to counsel for the Underwriters by the Company
or its counsel in compliance with the control and beneficial ownership certification requirements of the Financial Crimes Enforcement
Network within the U.S. Department of the Treasury (“FinCEN”) is true, complete, correct and compliant with
the rules, regulations and requirements of FinCEN.
(bbb) Cybersecurity.
The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently
conducted, and to the Company’s knowledge are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware
and other corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable physical, technical and
administrative controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the
integrity, continuous operation, redundancy and security of all IT Systems and data, including “Personal Data,” used in connection
with their businesses. “Personal Data” means (i) a natural person’s name, street address, telephone number,
e-mail address, facial photograph, social security number or tax identification number, driver’s license number, passport number,
credit card number, bank information, or customer or account number; (ii) any information which would qualify as “personally identifying
information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by GDPR (as defined
below); (iv) any information which would qualify as “protected health information” under HIPAA; and (v) any other piece of
information that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any
data related to an identified person’s health or medical condition. To the knowledge of the Company, there have been no breaches,
material violations, outages or unauthorized uses of or accesses to same, nor any incidents under internal review or investigations relating
to the same, except for those that are unlikely to have a Material Adverse Effect. The Company and its subsidiaries at all prior times
have been and are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations
of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access,
misappropriation or modification. The Company and its subsidiaries have at all times made all disclosures to users or customers required
by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in any policies and procedures
relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal Data have been
inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material respect.
(ccc) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable
state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company and its subsidiaries
have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently are in compliance
with, the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy
Laws”). To ensure compliance with the Privacy Laws, the Company and its subsidiaries have in place, comply with, and take
appropriate steps reasonably designed to ensure compliance in all material respects with their policies and procedures relating to data
privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”).
The Company and its subsidiaries have at all times made all disclosures to users or customers required by applicable laws and regulatory
rules or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate
or in violation of any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies that
neither it nor any subsidiary: (i) has received notice of any actual or potential liability under or relating to, or actual or potential
violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any
such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action
pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any
Privacy Law.
(ddd) Immunity.
Neither the Company nor any of its properties or assets has any immunity from the jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of the Kingdom
of Belgium.
(eee) Valid
Choice of Law; Enforceability. The choice of laws of the State of New York as the governing law of this Agreement is a valid choice
of law under the laws of Belgium and will be honored by the courts of Belgium, subject to the restrictions described under the caption
“Enforceability of Civil Liabilities” in the Registration Statement, the General Disclosure Package, and the Prospectus. The
Company has the power to submit, and pursuant to Section 18 of this Agreement, has legally, validly, effectively and irrevocably submitted,
to the personal jurisdiction of each of New York state and the United States federal court sitting in the City of New York and has validly
and irrevocably waived any objection to the laying of venue of any suit, action or proceeding brought in such court. Any final judgment
for a fixed or readily calculable sum of money rendered by a New York Court having jurisdiction under its own domestic laws and recognized
by the Belgian courts as having jurisdiction to give such final judgment in respect of any suit, action or proceeding against the Company
based upon this Agreement and any instruments or agreements entered into for the consummation of the transactions contemplated herein
would be declared enforceable against the Company. The Company is not aware of any reason why the enforcement in Belgium of such a New
York Court judgment would be, as of the date hereof, contrary to the public policy of Belgium.
(fff) No Public
Offering in European Economic Area. The Company has not made and will not make an offer to the public of the Securities in any member
state of the European Economic Area.
(ggg) Absence
of Market Abuse. The Company has not taken, directly or indirectly, in relation to the offering of the Securities or otherwise, any
action or engaged in any course of conduct in breach of, and has taken adequate measures and has adequate procedures in place in order
to ensure compliance with, and none of the issue of the Securities, the sale of the Securities and the consummation of the transactions
contemplated by this Agreement will constitute a violation by the Company of, any applicable European Union, Belgian, U.S. or any other
relevant jurisdiction “insider dealing,” “insider trading” or similar legislation and, so far as the Company is
aware, no person acting on its behalf has breached or is in breach of any relevant market abuse or insider trading law or regulation,
including any reporting obligations to the Commission, the Belgian Financial Services and Markets Authority or any other authority. The
Company has not taken, nor will the Company take, directly or indirectly, any action which is designed, or would be reasonably expected,
to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities or to result in a violation of applicable laws, including Regulation M under the Exchange Act and
Regulation (EU) No 596/2014 of the European Parliament and of the Council of April 16, 2014 on market abuse (as amended from time to time)
and its implementing rules.
(hhh) Effect
of Certificates. Any certificate signed by any officer of the Company and delivered to you or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
| 3. | Purchase, Sale and Delivery of Offered Securities.
On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth,
the Company agrees to issue and sell to the Underwriters, and the Underwriters agree, severally and not jointly, to purchase from the
Company the respective numbers of shares of Firm Stock set forth opposite the names of the Underwriters in Schedule A hereto, against
payment to the Company of the relevant Purchase Price (as defined below) therefor, for delivery thereof to the ultimate subscriber therefor.
The purchase price to be paid by the Underwriters to the Company for the Firm Stock will be $2.00 per Ordinary Share (the “Purchase
Price”). (As used herein, “business day” means a day on which the New York Stock Exchange is open
for trading and on which banks in Brussels, Belgium and New York, New York are open for business and are not permitted by law or executive
order to be closed). |
(a)
Payment and Delivery. Payment for the Firm Stock to be sold by the Company hereunder (and any Optional Stock to be so sold by
the Company) is to be made in United States dollars and in immediately available funds to a blocked account designated by the Company
(the “Blocked Account”). Such payment shall be initiated by urgent / “same-day” “SWIFT”
wire not later than 4:00 p.m., New York City time, on the Business Day immediately preceding the First Closing Date. On the First Closing
Date, subject to the reception of the full payment for the Firm Stock to be sold by the Company hereunder and subject to the reception
of the Subscription Form, the Company will issue the Firm Stock by 12:00 p.m. Brussels time. The effective realization of the Company’s
capital increase and the issuance of the Firm Stock to be issued by the Company, will be acknowledged and recorded in a notarial deed
by an authorized representative of the Company in accordance with article 7:186 of the Belgian Companies and Associations Code of 23
March 2019, as amended from time to time (the “Belgian Companies and Associations Code”) (the “Deed”),
pursuant to the provisions of the resolutions of the meeting of the Company’s board of directors held on September 21, 2024 and
the Underwriters shall subscribe for such Firm Stock with a view to distribute the Firm Stock on and/or after the First Closing Date
to the investors to whom such Firm Stock have been sold. In order to proceed with the issuance by the Company of, and subscription by
the Underwriters for, the Firm Stock, no later than one Business Day prior to the First Closing Date, the Representatives will deliver
to the Company a fully completed and duly executed subscription form, substantially in the form attached hereto as Exhibit F (such completed
and executed subscription form, the “Subscription Form”).The Company will, or will cause its transfer agent to, electronically
transfer the Firm Stock being sold by crediting the account of TD Securities (USA) LLC, or the account of TD Securities (USA) LLC’s
designee (provided TD Securities (USA) LLC shall have given the Company written notice of such designee at least one Business Day prior
to the First Closing Date) at the Depositary Trust Company (“DTC”). As compensation for the Underwriters’
commitments, the Company will pay to the Representative for the Underwriters’ proportionate accounts the sum of $0.12 per Ordinary
Share times the total number of Ordinary Shares purchased by the Underwriters from the Company on the First Closing Date (and any Second
Closing Date, as appropriate). Such payment will be made on the First Closing Date (or any Second Closing Date) with respect to the Ordinary
Shares purchased on such date by wire transfer or credit of immediately available funds, after completion of the issuance of the relevant
Ordinary Shares underlying the relevant Firm Stock (or Optional Stock), from the Blocked Account to an account designated by the Representative.
As used herein, “First Closing Date” means the second business day after the date of this Agreement or such other
time and date for the delivery of the Firm Stock not later than five business days thereafter as the Representatives and the Company
shall agree upon. Each time and date for delivery of the Optional Stock, if not on the First Closing Date, is herein called a “Second
Closing Date”, and each time and date for delivery of Securities is herein called a “Closing Date”.
(b) Optional
Stock. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein
set forth, the Company hereby grants to the several Underwriters an option to purchase all or any portion of the Optional Stock at the
same purchase price as the Firm Stock, for use solely in covering any over-allotments made by the Underwriters in the sale and distribution
of the Firm Stock. The option granted hereunder may be exercised in whole or in part at any time (but not more than once) within 30 days
after the effective date of this Agreement upon notice (which notice must be confirmed in writing and may be made by electronic mail to
the Company) by the Representative to the Company setting forth the aggregate number of Optional Stock as to which the several Underwriters
are exercising the option and the date and time, as determined by you and the Company, when the Optional Stock are to be issued and the
Optional Stock are to be delivered, but in no event earlier than the First Closing Date (as defined above) nor earlier than the second
business day or later than the tenth business day after the date on which the option shall have been exercised. The number of Optional
Stock to be purchased by each Underwriter shall be the same percentage of the total number of Optional Stock to be purchased by the several
Underwriters as the number of Firm Stock to be purchased by such Underwriter is of the total number of Firm Stock to be purchased by the
several Underwriters, as adjusted by the Representative in such manner as the Representative deems advisable to avoid fractional shares.
No Optional Stock shall be sold and delivered unless the Firm Stock previously have been, or simultaneously are, sold and delivered.
The documents to be delivered at each
Closing by or on behalf of the parties hereto, including the cross receipt for the Securities and any additional documents requested by
the Underwriters, will be delivered at the offices of DLA Piper LLP (US), 1251 Avenue of the Americas, New York New York 10020 (the “Closing
Location”), and the Securities will be delivered to the Underwriters, through the facilities of DTC, for the accounts of
each Underwriter, all at such Closing. A meeting will be held at the Closing Location at 10:00 a.m., New York City time, on the New York
Business Day next preceding such Closing, at which meeting the final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the purposes of this Section 3, “New York Business Day”
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City are
generally authorized or obligated by law or executive order to close.
The several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus. The Company acknowledges and agrees
that the Underwriters may offer and sell the Securities to or through any affiliate of an Underwriter.
| 4. | Further Agreements Of The Company. The Company agrees
with the several Underwriters: |
(a) Required
Filings. To prepare the Prospectus in a form approved by the Representatives containing information previously omitted at
the time of effectiveness of the Registration Statement in reliance on Rule 430B of the Rules and Regulations and to file
such Prospectus pursuant to Rule 424(b) of the Rules and Regulations not later than the second business day following
the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430B of the
Rules and Regulations; to notify the Representatives immediately of the Company’s intention to file or prepare any
supplement or amendment to any Registration Statement or to the Prospectus and to make no amendment or supplement to the
Registration Statement, the General Disclosure Package or to the Prospectus to which the Representatives shall reasonably object by
notice to the Company after a reasonable period to review; to advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the General
Disclosure Package or the Prospectus or any amended Prospectus or any Issuer Free Writing Prospectus has been filed and to furnish
the Underwriters with copies thereof; to file promptly all material required to be filed by the Company with the Commission pursuant
to Rules 433(d) or 163(b)(2) of the Rules and Regulations, as the case may be; to file promptly all reports and
any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) of the Rules and Regulations) is
required in connection with the offering or sale of Securities; to advise the Representatives, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus, of the suspension of the qualification of the Ordinary Shares for
offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration Statement, the General Disclosure Package or the Prospectus or
for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus or suspending any such qualification, and promptly
to use its best efforts to obtain the withdrawal of such order.
(b) Notification
of Certain Commission Actions. The Company will advise you, promptly after it shall receive notice or obtain knowledge thereof, of
the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment
thereto or preventing or suspending the use of any Preliminary Prospectus, the General Disclosure Package, the Prospectus or any issuer
free writing prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceeding for any such purpose; and the Company will promptly use its best efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order should be issued.
(c) Continued
Compliance with Securities Laws.
(A) Within
the time during which a prospectus (assuming the absence of Rule 172) relating to the Securities is required to be delivered under the
Securities Act by any Underwriter or dealer (the “Prospectus Delivery Period”), the Company will comply with
all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to
time in force, so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions
hereof, the General Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Prospectus
(or if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) would include an untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing,
not misleading, or if during such period it is necessary to amend the Registration Statement or supplement the Prospectus (or if the Prospectus
is not yet available to prospective investors, the General Disclosure Package) to comply with the Securities Act, the Company promptly
will (x) notify you of such untrue statement or omission, (y) amend the Registration Statement or supplement the Prospectus (or,
if the Prospectus is not yet available to prospective purchasers, the General Disclosure Package) (at the expense of the Company) so as
to correct such statement or omission or effect such compliance and (z) notify you when any amendment to the Registration Statement is
filed or becomes effective or when any supplement to the Prospectus (or, if the Prospectus is not yet available to prospective purchasers,
the General Disclosure Package) is filed.
(B) If
the General Disclosure Package is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available
to prospective purchasers and any event shall occur as a result of which, in the judgment of the Company or in the reasonable opinion
of the Underwriters, it becomes necessary to amend or supplement the General Disclosure Package in order to make the statements therein,
in the light of the circumstances then prevailing, not misleading, or to make the statements therein not conflict with the information
contained or incorporated by reference in the Registration Statement then on file and not superseded or modified, or if it is necessary
at any time to amend or supplement the General Disclosure Package to comply with any law, the Company promptly will either (i) prepare,
file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the General
Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated
by reference in the General Disclosure Package so that the General Disclosure Package as so amended or supplemented will not, in the light
of the circumstances then prevailing, be misleading or conflict with the Registration Statement then on file, or so that the General Disclosure
Package will comply with law.
(C) If
at any time following issuance of an issuer free writing prospectus or Written Testing-the-Waters Communication there occurred or occurs
an event or development as a result of which such issuer free writing prospectus or Written Testing-the-Waters Communication conflicted
or would conflict with the information contained in the Registration Statement, any Preliminary Prospectus or the Prospectus relating
to the Securities or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading,
the Company (x) has promptly notified or promptly will notify the Representative of such conflict, untrue statement or omission, (y) has
promptly amended or will promptly amend or supplement, at its own expense, such issuer free writing prospectus or Written Testing-the-Waters
Communication to eliminate or correct such conflict, untrue statement or omission and (z) has notified or promptly will notify you
when such amendment or supplement was or is filed with the Commission to the extent required to be filed by the Rules and Regulations.
(d) Blue
Sky Qualifications. The Company shall take or cause to be taken all necessary action to qualify the Securities for sale under the
securities laws of such domestic United States or foreign jurisdictions as you reasonably designate and to continue such qualifications
in effect so long as required for the distribution of the Securities, except that the Company shall not be required in connection therewith
to qualify as a foreign corporation (where not otherwise required) or to execute a general consent to service of process in any jurisdiction
(where not otherwise required).
(e) Provision
of Documents. The Company will furnish, at its own expense, to the Underwriters and counsel for the Underwriters copies of the Registration
Statement (three of which will be signed and will include all consents and exhibits filed therewith), and to the Underwriters and any
dealer each Preliminary Prospectus, the General Disclosure Package, the Prospectus, any issuer free writing prospectus and all amendments
and supplements to such documents, in each case as soon as reasonably available and in such quantities as you may from time to time reasonably
request.
(f) Value
Added Tax. The Company shall make all payments under this Agreement exclusive of any value added tax, goods and services tax, or any
other tax of a similar nature (“VAT”) which is chargeable thereon and if any VAT is or becomes chargeable in
respect of any such payment, the Company shall, subject to receipt of an appropriate VAT invoice (where required under applicable law),
pay in addition the amount of such VAT (at the same time and in the same manner as the payment to which such VAT relates). Where a sum
(a “Relevant Sum”) is paid or reimbursed to the Underwriters pursuant to this Agreement in respect of any cost,
expense or other amount and the Underwriters have incurred irrecoverable VAT levied on that cost, expense or other amount (the “VAT
Element”), then the Relevant Sum, to the extent applicable, shall, include the VAT Element. For the purposes of this Agreement
“VAT” means (i) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system
of value added tax (EC Directive 2006/112) and (ii) any other tax of a similar nature, whether imposed in a member state of the European
Union in substitution for or levied in addition to such tax referred to in (i) above or imposed elsewhere.
(g) Withholding.
The Company shall make all payments under this Agreement and under the Securities in U.S. dollars and such payments shall be free and
clear of, and without any deduction or withholding for or on account of, any current or future taxes, levies, imposts, duties, charges
or other deductions or withholdings levied in any jurisdiction unless such deduction or withholding is required by applicable law. In
that event, and except for any net income, capital gains, franchise taxes or other similar taxes imposed on the Underwriters by Belgium
or other applicable jurisdiction or by any political subdivision or taxing authority thereof or therein as a result of any present or
former connection (other than any connection resulting from the transactions contemplated by this Agreement) between the Underwriters
and such jurisdiction, the Company will pay additional amounts as may be necessary in order to ensure that the net amounts received by
the Underwriters for their benefit shall, after such withholding or deduction, equal the amounts that would have been received if no withholding
or deduction had been made.
(h) Stamp
Taxes. The Company shall pay, and jointly and severally indemnify and hold the Underwriters harmless against, any Stamp Taxes, including
any interest and penalties with respect thereto, imposed under the laws of Belgium or any other jurisdiction that are payable in connection
with (i) the creation, issuance or delivery by the Company of the Securities, (ii) the purchase by the Underwriters of the Securities
in the manner contemplated by this Agreement, (iii) the resale and delivery by the Underwriters of the Securities in the manner contemplated
by this Agreement, (iv) the execution and delivery of this Agreement, or (v) the consummation or completion of the transactions contemplated
by this Agreement.
(i) Rule
158. The Company will make generally available to its security holders as soon as practicable, but in no event later than 15 months
after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period
beginning after the effective date of the Registration Statement (which, for purposes of this paragraph, will be deemed to be the effective
date of the Rule 462(b) Registration Statement, if applicable) that shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Rules and Regulations.
(j) Lock
Up. During the period commencing on and including the date hereof and ending on and including the ninetieth (90th) day following the
date of this Agreement (as the same may be extended as described below, the “Lock-Up Period”), the Company will
not, without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives),
directly or indirectly offer, sell (including, without limitation, any short sale), assign, transfer, pledge, contract to sell, establish
an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose
of, or announce the offering of, or file any registration statement under the Securities Act in respect of, any Ordinary Shares, options,
rights or warrants to acquire Ordinary Shares or securities exchangeable or exercisable for or convertible into Ordinary Shares or publicly
announce any intention to do any of the foregoing; provided, however, that the Company may: (i) sell the
Securities pursuant to this Agreement and pursuant to the securities purchase agreement between the Company and strategic partner described
in the Prospectus; (ii) issue Ordinary Shares and options to purchase Ordinary Shares pursuant to any director or employee incentive
plan, stock ownership plan or dividend reinvestment plan of the Company in effect on the date hereof and described in the General Disclosure
Package; (iii) issue Ordinary Shares pursuant to the conversion of securities, the exercise of (contractual) conversion rights (though
contribution in kind or otherwise) or the exercise of warrants, which securities, (contractual) conversion rights or warrants are outstanding
on the date hereof and described in the General Disclosure Package; (iv) adopt a new equity incentive plan, file a registration statement
on Form S-8 under the Securities Act to register the offer and sale of securities on such new equity incentive plan or on equity
incentive plans described in the General Disclosure Package, and issue securities pursuant to such equity incentive plans (including,
without limitation, the issuance of shares of Ordinary Shares upon the exercise of options or other securities issued pursuant to such
equity incentive plans); provided that (1) such equity incentive plans satisfy the transaction requirements of General
Instruction A.1 of Form S-8 under the Securities Act and (2) this clause (iii) shall not be available unless each recipient
of shares of Ordinary Shares, or securities exchangeable or exercisable for or convertible into Ordinary Shares, pursuant to such equity
incentive plans shall be contractually prohibited from selling, offering, disposing of or otherwise transferring any such shares or securities
during the remainder of the Lock-Up Period; and (v) issue Ordinary Shares or securities convertible or exchangeable for shares
of Ordinary Shares in connection with any acquisition, collaboration, licensing or other strategic transaction (but excluding transactions
principally of a financing nature); provided, that the aggregate number of shares of Ordinary Shares or securities convertible
into or exercisable for Ordinary Shares (on an as-converted or as-exercised basis, as the case may be) that the Company may sell or issue
or agree to sell or issue pursuant to this clause (v) shall not exceed five percent (5%) of the total number of shares of the Company’s
Ordinary Shares issued and outstanding immediately following the completion of the transactions contemplated by this Agreement.
In addition, the Company will cause each person and entity listed on Schedule D to furnish to the Representatives, prior
to the Closing Date an agreement in the form of Exhibit E hereto.
(k) No
Market Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed to
or which might reasonably be expected to cause or result in, or which has constituted, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Securities, and has not affected any sales of Ordinary Shares which
are required to be disclosed in response to Item 701 of Regulation S-K under the Securities Act which have not been so disclosed
in the Registration Statement.
(l) SEC
Reports. During the Prospectus Delivery Period, the Company will file on a timely basis with the Commission such periodic and special
reports as required by the Rules and Regulations.
(m) Free
Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior written consent of the Representatives,
and each Underwriter represents and agrees that, unless it obtains the prior written consent of the Company and the Representatives, it
has not made and will not, make any offer relating to the Securities that would constitute a “free writing prospectus” as
defined in Rule 405 of the Rules and Regulations (each, a “Permitted Free Writing Prospectus”); provided, however,
that the prior written consent of the Company and the Representatives hereto shall be deemed to have been given in respect of the Issuer
Free Writing Prospectuses included in Schedule B hereto. The Company represents that it has treated and agrees
that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, comply with the requirements of Rules 164
and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely
filing with the Commission, legending and record keeping, and will not take any action that would result in an Underwriter or the Company
being required to file with the Commission pursuant to Rule 433(d) of the Rules and Regulations a free writing prospectus
prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder. The
Company will satisfy the condition in Rule 433 of the Rules and Regulations to avoid a requirement to file with the Commission
any electronic road show.
(n) Emerging
Growth Company. The Company will as soon as reasonably practicable promptly notify the Representatives if the Company ceases to be
an Emerging Growth Company at any time prior to the later of (A) completion of the distribution of Securities within the meaning
of the Securities Act and (B) completion of the Lock-Up Period.
(o) Delivery
of SEC Correspondence. To supply the Underwriters with copies of all correspondence to and from, and all documents issued to and by,
the Commission in connection with the registration of the Securities under the Securities Act or any of the Registration Statement, any
Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto or document incorporated by reference therein.
(p) Press
Releases. Prior to the Closing Date, not to issue any press release or other communication directly or indirectly or hold any press
conference with respect to the Company, its condition, financial or otherwise, or earnings, business affairs or business prospects (except
for routine oral marketing communications in the ordinary course of business and consistent with the past practices of the Company and
of which the Representatives are notified), without the prior consent of the Representatives, unless in the judgment of the Company and
its counsel, and after notification to the Representatives, such press release or communication is required by law.
(q) Compliance
with Regulation M. Until the Underwriters shall have notified the Company of the completion of the resale of the Securities, that
the Company will not, and will use its reasonable best efforts to cause its “affiliated purchasers” (as defined in Regulation
M under the Exchange Act) not to, either alone or with one or more other persons, bid for or purchase, for any account in which it or
any of its affiliated purchasers has a beneficial interest, any Securities, or attempt to induce any person to purchase any Securities;
and not to, and to use its reasonable best efforts to cause its affiliated purchasers not to, make bids or purchase for the purpose of
creating actual, or apparent, active trading in or of raising the price of the Securities.
(r) Registrar
and Transfer Agent. To maintain, at its expense, a registrar and transfer agent for the Securities.
(s) Use
of Proceeds. To apply the net proceeds from the sale of the Securities as set forth in the Registration Statement, the General Disclosure
Package and the Prospectus under the heading “Use of Proceeds,” and except as disclosed in the General Disclosure Package,
the Company does not intend to use any of the proceeds from the sale of the Securities hereunder to repay any outstanding debt owed to
any affiliate of any Underwriter. The Company will file such reports with the Commission with respect to the sale of the Securities and
the application of the proceeds therefrom as may be required in accordance with Rule 463 of the Rules and Regulations.
(t) No
Integration. Neither the Company nor any of its affiliates has, prior to the date hereof, made any offer or sale of any securities
that are required to be “integrated” pursuant to the Securities Act with the offer and sale of the Securities pursuant to
the Registration Statement.
(a) The
Company agrees to pay, or reimburse if paid by any Underwriter, whether or not the transactions contemplated hereby are consummated or
this Agreement is terminated: (a) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities
and any taxes payable in that connection (except, for the avoidance of doubt, any net income, capital gains, franchise taxes or other
similar taxes imposed on the Underwriters by Belgium or other applicable jurisdictions or by any political subdivision or taxing authority
thereof or therein as a result of any present or former connection (other than any connection resulting from the transactions contemplated
by this Agreement) between the Underwriters and such jurisdiction; (b) the costs incident to the registration of the Securities under
the Securities Act; (c) the costs incident to the preparation, printing and distribution of the Registration Statement any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package, the Prospectus, any amendments, supplements and exhibits
thereto or any document incorporated by reference therein and the costs of printing, reproducing and distributing this Agreement and any
closing documents by mail, telex or other means of communications; (d) the fees and expenses (including related fees and expenses of counsel
for the Underwriters) incurred in connection with securing any required review by FINRA of the terms of the sale of the Securities and
any filings made with FINRA; (e) any applicable listing or other fees; (f) the fees and expenses (including related fees and expenses
of counsel to the Underwriters) of qualifying the Securities under the securities laws of the several jurisdictions as provided in Section
4(e)) and of preparing, printing and distributing wrappers, blue sky memoranda and legal investment surveys; (g) the cost of preparing
and printing stock certificates; (h) all fees and expenses of the registrar, transfer agent, agent for service of process and/or depositary
of the Securities; (i) the costs and expenses (including, without limitation, any damages or other amounts payable in connection with
the legal or contractual liability) associated with the reforming of any contracts for sale of the Securities made by the Underwriters
caused by a breach of the representation contained in Section 2(b); and (j) the costs and expenses of the Company relating to investor
presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including,
without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the
production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations
with the prior approval of the Company, travel and lodging expenses of the officers of the Company and such consultants, including the
cost of any aircraft chartered in connection with the road show and (k) all other costs and expenses of the Company incident to the
offering of the Securities or the performance of the obligations of the Company under this Agreement (including, without limitation, the
fees and expenses of the Company’s counsel and the Company’s independent accountants); and provided that, except to the extent
otherwise provided in this Section 5 and in Sections 9 and 10, the Underwriters shall pay their own costs and expenses, including the
fees and expenses of their counsel not contemplated herein, any transfer taxes on the resale of any Securities by them and the expenses
of advertising any offering of the Securities made by the Underwriters.
(b) The
Company will indemnify and hold harmless the Underwriters against any documentary, stamp, issue, registration, transfer or other similar
tax or duty, including any interest and penalties, on or in connection with (i) the creation and issuance and delivery of the Ordinary
Shares by the Company, and the sale of the Securities by the Underwriters, in the manner contemplated by this Agreement and the Prospectus
and (ii) the execution, delivery and performance by the Company or the Underwriters of this Agreement, except if such tax or duty
is due as a result of or in connection with an Underwriter (a) being resident in the Belgium for tax purposes or (b) carrying
on business through a permanent establishment in Belgium for tax purposes or (c) having a fixed establishment in Belgium for VAT
purposes or (d), for purposes of the Belgian stock exchange tax, acting as a professional intermediary on behalf of purchasers of Securities
with habitual residence in Belgium in relation to the purchase of Securities. All payments to be made by the Company under this Agreement
shall be made without withholding or deduction for or on account of any present or future taxes, levies, imposts, duties, fees, assessments
or other charges whatsoever, and all interest, penalties or similar liabilities with respect thereto (“Taxes”)
unless the Company is compelled by law to deduct or withhold such Taxes. In that event, and except for any net income, capital gains,
franchise taxes or other similar taxes imposed on the Underwriters by Belgium or other applicable jurisdiction or by any political subdivision
or taxing authority thereof or therein as a result of any present or former connection (other than any connection resulting from the transactions
contemplated by this Agreement) between the Underwriters and such jurisdiction, the Company shall pay such additional amounts as may be
necessary in order to ensure that the net amounts received after such withholding or deduction shall equal the amounts that would have
been received if no withholding or deduction had been made.
(c) If
the performance by the Underwriters of any of their obligations under this Agreement shall represent for VAT purposes under any applicable
law the making by the Underwriters of any supply of goods or services to the Company (to the extent applicable) and the Underwriters are
required to account for the VAT chargeable on any such supply of goods or services, the Company shall pay to the Underwriters, in addition
to the amounts otherwise payable by the Company pursuant to this Agreement, an amount equal to the VAT chargeable on any such supply of
goods and services and the Underwriters shall issue the Company (to the extent applicable) with an appropriate VAT invoice in respect
of the supply to which the payment relates. Where a Relevant Sum is paid or reimbursed to the Underwriters pursuant to this Agreement
in respect of any cost, expense or other amount and that cost, expense or other amount includes the VAT Element, then the Company, to
the extent applicable, shall, in addition, pay an amount to the Underwriters by reference to the VAT Element.
| 6. | Conditions of Underwriters’ Obligations. The
respective obligations of the several Underwriters hereunder are subject to the accuracy, when made and as of the Applicable Time and
on each Closing Date, of the representations and warranties of the Company contained herein, to the accuracy of the statements of the
Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and
to each of the following additional terms and conditions: |
(a) Registration
Compliance; No Stop Orders. The Registration Statement is effective under the Securities Act, and no stop order suspending the effectiveness
of the Registration Statement or any part thereof, preventing or suspending the use of any Preliminary Prospectus, the Prospectus or any
Permitted Free Writing Prospectus or any part thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A
under the Securities Act shall have been initiated or threatened by the Commission, and all requests for additional information on the
part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to
the reasonable satisfaction of the Representatives; each Issuer Free Writing Prospectus and the Prospectus shall have been filed with,
the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations
and in accordance with Section 4(a) of this Agreement and FINRA shall have raised no unresolved objection to the fairness and
reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) Corporate
Proceedings. All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement,
the Securities, the Registration Statement, the General Disclosure Package, each Issuer Free Writing Prospectus and the Prospectus and
all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material
respects to counsel to the Representatives, and the Company shall have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(c) Continued
Compliance with Securities Laws. No Underwriter shall have advised the Company that (i) the Registration Statement or any amendment
thereof or supplement thereto contains an untrue statement of a material fact which, in your opinion, is material or omits to state a
material fact which, in your opinion, is required to be stated therein or necessary to make the statements therein not misleading, or
(ii) the General Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any issuer free writing prospectus
contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material
and is required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they are
made, not misleading.
(d) Absence
of Certain Events. Except as contemplated in the General Disclosure Package and in the Prospectus, subsequent to the respective dates
as of which information is given in the General Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries
shall have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared
or paid any dividends or made any distribution of any kind with respect to its share capital; and there shall not have been any change
in the share capital (other than a change in the number of Ordinary Shares due to the issuance of shares upon the exercise of outstanding
options or warrants or conversion of convertible securities or pursuant to the OrbiMed Credit Documents), or any material change in the
short-term or long-term debt of the Company (other than as a result of the conversion of convertible securities or the exercise of (contractual)
conversion rights (through contribution in kind or otherwise)), or any issuance of options, warrants, convertible securities or other
rights to purchase shares of the Company or any of its subsidiaries, or any Material Adverse Effect or any development involving a prospective
Material Adverse Effect (whether or not arising in the ordinary course of business), that, in your judgment, makes it impractical or inadvisable
to offer or deliver the Securities on the terms and in the manner contemplated in the General Disclosure Package and in the Prospectus.
(e) Opinion
of Company Counsel. On each Closing Date, there shall have been furnished to you, as Representative of the several Underwriters, (i)
the opinion and negative assurance letter of K&L Gates LLP counsel for the Company, dated such Closing Date and addressed to you in
form and substance satisfactory to you, with respect to such matters as you may reasonably request and such counsel shall have received
such documents and information as they may reasonably request to enable them to pass upon such matters, and (ii) the opinion of Baker
McKenzie BV/SRL, counsel for the Company, dated such Closing Date and addressed to you in form and substance satisfactory to you, with
respect to such matters as you may reasonably request and such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(f) Opinion
of Intellectual Property Counsel. On each Closing Date, there shall have been furnished to you, as Representative of the several Underwriters,
the opinion of Quarles and Brady LLP, intellectual property counsel for the Company, dated such Closing Date and addressed to you in form
and substance satisfactory to you.
(g) Opinion
of the Company’s General Counsel. On each Closing Date, there shall have been furnished to you, as Representative of the several
Underwriters, the opinion of the General Counsel for the Company with respect to certain regulatory matters, dated such Closing Date and
addressed to you in form and substance satisfactory to you.
(h) Opinion
of Underwriters’ Counsel. On each Closing Date, there shall have been furnished to you, as Representative of the several Underwriters,
such opinion or opinions from DLA Piper LLP (US), counsel for the several Underwriters, dated such Closing Date and addressed to you,
with respect to the Registration Statement, the General Disclosure Package or the Prospectus and other related matters as you reasonably
may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.
(i) Comfort
Letters. On the date hereof, on the effective date of any post-effective amendment to the Registration Statement filed after the date
hereof and on each Closing Date you, as the Representative of the several Underwriters, shall have received a letter from BDO Réviseurs
d’Entreprises SRL, dated such date and addressed to you, in form and substance satisfactory to you.
(j) Officers’
Certificate. On each Closing Date, there shall have been furnished to you, as the Representative of the Underwriters, a certificate,
dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company,
to the effect that:
(i) The
representations and warranties of the Company in this Agreement are true and correct as if made at and as of such Closing Date, and the
Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to
such Closing Date; and
(ii) No
stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the
qualification of the Securities for offering or sale, nor suspending or preventing the use of the General Disclosure Package, the Prospectus
or any issuer free writing prospectus, has been issued, and no proceeding for that purpose has been instituted or, to the best of their
knowledge, is contemplated by the Commission or any state or regulatory body.
(k) FINRA
No Objections. FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(l) CFO
Certificate. On the date of this Agreement and on each Closing Date, as the case may be, the Company shall have furnished to the
Representative a certificate, dated the respective dates of delivery thereof and addressed to the Underwriters, of its chief financial
officer with respect to certain financial data contained in the General Disclosure Package and the Prospectus, providing “management
comfort” with respect to such information, in form and substance reasonably satisfactory to the Representative.
(m) No
Legal Impediment to Issuance. No action shall have been taken and no law, statute, rule, regulation or order shall have been enacted,
adopted or issued by any governmental or regulatory agency or body which would prevent the issuance or sale of the Securities; and no
injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued
which would prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely
affect the business or operations of the Company.
(n) No
Downgrade. Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the Company’s
corporate credit rating or the rating accorded the Company’s debt securities by any “nationally recognized statistical rating
organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no
such organization shall have publicly announced that it has under surveillance or review (other than an announcement with positive implications
of a possible upgrading), the Company’s corporate credit rating or the rating of any of the Company’s debt securities.
(o) Market
Conditions. Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading
in any of the Company’s securities shall have been suspended or materially limited by the Commission or the Exchange, or trading
in securities generally on the New York Stock Exchange, Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital Market or the
NYSE MKT LLC or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established
on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption has occurred
in commercial banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged
in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving
the United States, or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions
on the financial markets in the United States shall be such) as to make it, in any such case, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated in the
General Disclosure Package and the Prospectus.
(p) Lock
Up Agreements. The Representatives shall have received the written agreements, substantially in the form of Exhibit E
hereto, of the officers, directors, stockholders, option holders and warrant holders of the Company listed in Schedule D to this
Agreement.
(q) Additional
Document. On or prior to each Closing Date, the Company shall have furnished to the Representatives such further certificates and
documents as the Representatives may reasonably request.
All opinions, letters, evidence
and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if
they are in form and substance reasonably satisfactory to counsel for the Underwriters.
| 7. | Indemnification and Contribution. |
(a) Indemnification
of Underwriters by the Company. The Company shall indemnify and hold harmless each Underwriter and its affiliates, directors,
officers, managers, members, employees, representatives and agents and each person, if any, who controls any Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively the “Underwriter Indemnified
Parties,” and each, an “Underwriter Indemnified Party”) against any loss, claim, damage, expense
or liability whatsoever (or any action, investigation or proceeding in respect thereof), joint or several, to which such Underwriter Indemnified
Party may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation
or proceeding arises out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any Issuer Free Writing Prospectus, any Registration Statement, the Prospectus or in any amendment or supplement
thereto or document incorporated by reference therein or in any materials or information provided to investors by, or with the approval
of, the Company in connection with the marketing of the offering of the Securities, including any road show or investor presentations
made to investors by the Company (whether in person or electronically) (“Marketing Materials”) or (ii) the
omission or alleged omission to state in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any Registration Statement, the
Prospectus or in any amendment or supplement thereto or document incorporated by reference therein or in any Marketing Materials, a material
fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made,
not misleading (as it applies to the Prospectus and not to the Registration Statement), and shall reimburse each Underwriter Indemnified
Party promptly upon demand for any legal fees or other expenses reasonably incurred by that Underwriter Indemnified Party in connection
with investigating, or preparing to defend, or defending against, or appearing as a third party witness in respect of, or otherwise incurred
in connection with, any such loss, claim, damage, expense, liability, action, investigation or proceeding, as such fees and expenses are
incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, expense or liability arises out of or is based upon an untrue statement or alleged untrue statement in, or omission
or alleged omission from any Preliminary Prospectus, any Registration Statement, the Prospectus or any such amendment or supplement
thereto, any Issuer Free Writing Prospectus or any Marketing Materials made in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for use therein, which information
the parties hereto agree is limited to the Underwriter’s Information. Each indemnity agreement in this Section 7(a) is
not exclusive and is in addition to each other indemnity agreement in this Section 7(a) and each other liability which the Company
might have under this Agreement or otherwise, and shall not limit any rights or remedies which may otherwise be available under this Agreement,
at law or in equity to any Underwriter Indemnified Party.
(b) Indemnification
of Company by the Underwriters. Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company and its
directors, its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Company Indemnified Parties,”
and each, a “Company Indemnified Party”) against any loss, claim, damage, expense or liability whatsoever (or
any action, investigation or proceeding in respect thereof), joint or several, to which such Company Indemnified Party may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage, expense, liability, action, investigation or proceeding arises
out of or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus,
any Issuer Free Writing Prospectus, any Registration Statement, the Prospectus or in any amendment or supplement thereto, or (ii) the
omission or alleged omission to state in any Preliminary Prospectus, any Issuer Free Writing Prospectus, any Registration Statement, the
Prospectus or in any amendment or supplement thereto, a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading (as it applies to Prospectus and not to the Registration
Statement), but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf
of that Underwriter specifically for use therein, which information the parties hereto agree is limited to the Underwriters’ Information,
and shall reimburse the Company Indemnified Parties for any legal or other expenses reasonably incurred by such party in connection with
investigating or preparing to defend or defending against or appearing as a third-party witness in connection with any such loss, claim,
damage, liability, action, investigation or proceeding, as such fees and expenses are incurred. This indemnity agreement is not
exclusive and will be in addition to any liability which the Underwriters might otherwise have and shall not limit any rights or remedies
which may otherwise be available under this Agreement, at law or in equity to the Company Indemnified Parties.
(c) Promptly
after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, the indemnified party shall,
if a claim in respect thereof is to be made against an indemnifying party under this Section 7, notify such indemnifying party in
writing of the commencement of that action; provided, however, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have under this Section 7 except to the extent it has been materially prejudiced
by such failure; provided, further, that the failure to notify an indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than under this Section 7. If any such action shall be brought
against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense of such
action with counsel reasonably satisfactory to the indemnified party (which counsel shall not, except with the written consent of the
indemnified party, be counsel to the indemnifying party). After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such action, except as provided herein, the indemnifying party shall not be liable to the indemnified
party under Section 7 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense
of such action other than reasonable costs of investigation; provided, however, that any indemnified party shall
have the right to employ separate counsel in any such action and to participate in the defense of such action but the fees and expenses
of such counsel (other than reasonable costs of investigation) shall be at the expense of such indemnified party unless (i) the employment
thereof has been specifically authorized in writing by the Company in the case of a claim for indemnification under Section 7(a) or
the Representatives in the case of a claim for indemnification under Section 7(b), (ii) such indemnified party shall have been
advised by its counsel that there may be one or more legal defenses available to it which are different from or additional to those available
to the indemnifying party, or (iii) the indemnifying party has failed to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party within a reasonable period of time after notice of the commencement of the action or the indemnifying
party does not diligently defend the action after assumption of the defense, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not
have the right to assume the defense of (or, in the case of a failure to diligently defend the action after assumption of the defense,
to continue to defend) such action on behalf of such indemnified party and the indemnifying party shall be responsible for legal or other
expenses subsequently incurred by such indemnified party in connection with the defense of such action; provided, however,
that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions
in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys at any time for all such indemnified parties (in addition to any local counsel), which firm
shall be designated in writing by the Representatives if the indemnified parties under this Section 7 consist of any Underwriter
Indemnified Party or by the Company if the indemnified parties under this Section 7 consist of any Company Indemnified Parties.
Subject to this Section 7(c), the amount payable by an indemnifying party under Section 7 shall include, but not be limited
to, (x) reasonable, documented legal fees and expenses of counsel to the indemnified party and any other expenses in investigating,
or preparing to defend or defending against, or appearing as a third-party witness in respect of, or otherwise incurred in connection
with, any action, investigation, proceeding or claim, and (y) all amounts paid in settlement of any of the foregoing. No indemnifying
party shall, without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld or delayed),
settle or compromise or consent to the entry of judgment with respect to any pending or threatened action or any claim whatsoever, in
respect of which indemnification or contribution could be sought under this Section 7 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or consent (A) includes an unconditional release of each
indemnified party in form and substance reasonably satisfactory to such indemnified party from all liability arising out of such action
or claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party. Subject to the provisions of the following sentence, no indemnifying party shall be liable for settlement
of any pending or threatened action or any claim whatsoever that is effected without its written consent (which consent shall not be unreasonably
withheld or delayed), but if settled with its written consent, if its consent has been unreasonably withheld or delayed or if there be
a judgment for the plaintiff in any such matter, the indemnifying party agrees to indemnify and hold harmless any indemnified party from
and against any loss or liability by reason of such settlement or judgment. In addition, if at any time an indemnified party shall
have requested that an indemnifying party reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by Section 7(a) effected without its written consent if
(i) such settlement is entered into more than forty-five (45) days after receipt by such indemnifying party of the request for reimbursement,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least thirty (30) days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
(d) If
the indemnification provided for in this Section 7 is unavailable or insufficient to hold harmless an indemnified party under Section 7(a) or
7(b), then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid, payable or otherwise
incurred by such indemnified party as a result of such loss, claim, damage, expense or liability (or any action, investigation or proceeding
in respect thereof), as incurred, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offering of the Securities, or (ii) if the allocation provided
by clause (i) of this Section 7(d) is not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) of this Section 7(d), but also the relative fault of the Company on
the one hand and the Underwriters on the other with respect to the statements, omissions, acts or failures to act which resulted in such
loss, claim, damage, expense or liability (or any action, investigation or proceeding in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other with respect
to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities purchased
under this Agreement (before deducting expenses) received by the Company bear to the total underwriting commissions received by the Underwriters
with respect to the Securities purchased under this Agreement, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement, omission, act or failure
to act; provided, however, that the parties hereto agree that the written information furnished to the Company
through the Representatives by or on behalf of the Underwriters for use in the Preliminary Prospectus, any Registration Statement, the
Prospectus or in any amendment or supplement thereto, consists solely of the Underwriters’ Information.
(e) The
Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to Section 7(d) above were
to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations
referred to Section 7(d) above. The amount paid or payable by an indemnified party as a result of the loss, claim, damage,
expense, liability, action, investigation or proceeding referred to in Section 7(d) above shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating,
preparing to defend or defending against or appearing as a third party witness in respect of, or otherwise incurred in connection with,
any such loss, claim, damage, expense, liability, action, investigation or proceeding. Notwithstanding the provisions of this Section 7,
no Underwriter shall be required to contribute any amount in excess of the amount by which the total underwriting commissions received
by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages which the Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement, omission or alleged omission, act or alleged act or
failure to act or alleged failure to act. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute as provided in this Section 7 are several in proportion to their respective underwriting
obligations and not joint.
| 8. | Termination. The obligations of the Underwriters
hereunder may be terminated by the Representatives, in their absolute discretion, by notice given to the Company prior to delivery of
and payment for the Securities if, prior to that time, any of the events described
in Sections 6(a), 6(e) or 6(o) have occurred or if the Underwriters shall decline to purchase the Securities for any reason
permitted under this Agreement. |
| 9. | Reimbursement of Underwriters’ Expenses. Notwithstanding
anything to the contrary in this Agreement, if (a) this Agreement shall have been terminated pursuant to Section 8 or 10, (b) the
Company shall fail to tender the Securities for delivery to the Underwriters for any reason not permitted under this Agreement, (c) the
Underwriters shall decline to purchase the Securities for any reason permitted under this Agreement or (d) the sale of the Securities
is not consummated because any condition to the obligations of the Underwriters set forth herein is not satisfied or because of the refusal,
inability or failure on the part of the Company to perform any agreement herein or to satisfy any condition or to comply with the provisions
hereof, then, in addition to the payment of amounts in accordance with Section 5, the Company shall reimburse the Underwriters in
accordance with this Section 9 for the fees and expenses of Underwriters’ counsel and for such other documented out-of-pocket
expenses as shall have been reasonably incurred by them in connection with this Agreement and the proposed purchase of the Securities,
including, without limitation, travel and lodging expenses of the Underwriters, and upon demand the Company shall pay the full amount
thereof to the Representatives; provided, however, that if this Agreement is terminated pursuant to Section 10
by reason of the default of one or more Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account
of expenses to the extent incurred by such defaulting Underwriter; provided, further, that the foregoing shall
not limit any reimbursement obligation of the Company to any non-defaulting Underwriter under this Section 9. |
| 10. | Substitution of Underwriters. If any Underwriter
or Underwriters shall default in its or their obligations to purchase the Securities hereunder on any Closing Date, and the aggregate
number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of
the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed
but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares
with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all
Underwriters on such Closing Date, and arrangements satisfactory to the Representatives and the Company for the purchase of such shares
by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. |
If the remaining Underwriters
or substituted Underwriters are required hereby or agree to take up all or part of the Securities of a defaulting Underwriter or Underwriters
on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Dates for
a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective
numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability
to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations,
warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses
to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7, Section 11 and Sections 13 through 22,
inclusive, shall not terminate and shall remain in full force and effect.
| 11. | Absence of Fiduciary Relationship. The Company acknowledges
and agrees that: |
(a) each
Underwriter’s responsibility to the Company is solely contractual in nature, the Representatives have been retained solely to act
as underwriters in connection with the sale of the Securities and no fiduciary, advisory or agency relationship between the Company and
the Representatives have been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether any
of the Representatives has advised or is advising the Company on other matters;
(b) the
price of the Securities set forth in this Agreement was established by the Company following discussions and arm’s-length negotiations
with the Representatives, and the Company is capable of evaluating and understanding, and understands and accepts, the terms, risks and
conditions of the transactions contemplated by this Agreement;
(c) it
has been advised that the Representatives and their affiliates are engaged in a broad range of transactions which may involve interests
that differ from those of the Company and that the Representatives have no obligation to disclose such interests and transactions to the
Company by virtue of any fiduciary, advisory or agency relationship; and
(d) it
waives, to the fullest extent permitted by law, any claims it may have against the Representatives for breach of fiduciary duty or alleged
breach of fiduciary duty and agrees that the Representatives shall have no liability (whether direct or indirect) to the Company in respect
of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including shareholders,
employees or creditors of the Company.
| 12. | Successors; Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon the several Underwriters, the Company and their respective successors
and assigns. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, other than the
persons mentioned in the preceding sentence, any legal or equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained, this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that the representations, warranties, covenants, agreements and
indemnities of the Company contained in this Agreement shall also be for the benefit of the Underwriter Indemnified Parties, and the indemnities
of the several Underwriters shall be for the benefit of the Company Indemnified Parties. It is understood that each Underwriter’s
responsibility to the Company is solely contractual in nature and the Underwriters do not owe the Company, or any other party, any fiduciary
duty as a result of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed to be a successor
or assign by reason merely of such purchase. |
| 13. | Survival of Indemnities, Representations, Warranties, etc.
The respective indemnities, covenants, agreements, representations, warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by them respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter, the Company or any person controlling any of them and
shall survive delivery of and payment for the Securities. Notwithstanding any termination of this Agreement, including without limitation
any termination pursuant to Section 8 or Section 10, the indemnities, covenants, agreements, representations, warranties and
other statements forth in Sections 2, 5, 7 and 9 and Sections 11 through 22, inclusive, of this Agreement shall not terminate and shall
remain in full force and effect at all times. |
| 14. | Recognition of the U.S. Special Resolution Regimes |
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
| 15. | Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and: |
(a) if
to the Underwriters, shall be delivered or sent by mail, telex, facsimile transmission or email to (i) TD Securities (USA) LLC, Attention:
Head of Equity Capital Markets, Fax: 646-562-1249 with a copy to the General Counsel, Fax: 646-562-1130; and (ii) William
Blair & Company, L.L.C., 150 North Riverside Plaza, Chicago, IL 60606, Attention: General Counsel, Facsimile: (312) 551-4646;
(b) if
to the Company, shall be mailed or delivered to it at 15279 Alton Parkway, Suite 100 Irvine, CA 92618 Attention: General Counsel.
provided, however, that any notice to an
Underwriter pursuant to Section 7 shall be delivered or sent by mail, or facsimile transmission to such Underwriter at its address set
forth in its acceptance telex to the Representatives, which address will be supplied to any other party hereto by the Representatives
upon request. Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof.
| 16. | Definition of Certain Terms. For purposes of this
Agreement, (a) “affiliate” has the meaning set forth in Rule 405 under the Securities Act, (b) “subsidiary”
has the meaning set forth in Rule 405 of the Rules and Regulations; (c) “BHC Act Affiliate” has the meaning
assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k), (d) “Covered
Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with,
12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 382.2(b), (e) “Default Right” has the meaning assigned to that term in, and shall be interpreted
in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable, and (f) “U.S. Special Resolution Regime”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall
Street Reform and Consumer Protection Act and the regulations promulgated thereunder. |
| 17. | Judgment
Currency. The obligations of the Company pursuant to this Agreement in
respect of any sum due to any Underwriter shall, notwithstanding any judgment in a currency
other than United States dollars, not be discharged until the first business day, following
receipt by such Underwriter of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) such Underwriter may in accordance with normal banking procedures
purchase United States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder, the Company
agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss. |
| 18. | Governing Law, Jurisdiction, Waiver of Jury Trial, Agent For
Service. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, including
without limitation Section 5-1401 of the New York General Obligations. The Company irrevocably (i) submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York for the purpose of any suit, action or
other proceeding arising out of this Agreement or the transactions contemplated by this Agreement, the Registration Statement, and any
Preliminary Prospectus or the Prospectus, (ii) agrees that all claims in respect of any such suit, action or proceeding may be heard
and determined by any such court, (iii) waives to the fullest extent permitted by applicable law, any immunity from the jurisdiction
of any such court or from any legal process, (iv) agrees not to commence any such suit, action or proceeding other than in such courts,
and (v) waives, to the fullest extent permitted by applicable law, any claim that any such suit, action or proceeding is brought
in an inconvenient forum. Each of the parties to this Agreement hereby waives any right to trial by jury in any suit or proceeding
arising out of or relating to this Agreement. The Company appoints Cogency Global Inc. located at 122 East 42nd Street, 18th Floor, New
York, NY 10168 as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding that
may be instituted in any state or federal court in the City and County of New York (which appointment shall not be revoked by the Company). |
| 19. | Underwriters’ Information. The parties
hereto acknowledge and agree that, for all purposes of this Agreement, the “Underwriters’ Information”
consists solely of the following information in the Prospectus: (i) the third paragraph of text under the caption “Underwriters”
in the Prospectus concerning the terms of offering by the Underwriters; (ii) the twelfth paragraph of the text under the caption
“Underwriters” in the Prospectus concerning stabilization and overallotments by the Underwriters; and (iii) the seventeenth
paragraph of text under the caption “Underwriters” in the Prospectus concerning the availability of the Prospectus in electronic
format, the allocation of Ordinary Shares to online brokerage account holders and Internet distributions. |
| 20. | Authority of the Representatives. In connection
with this Agreement, the Representatives will act for and on behalf of the several Underwriters, and any action taken under this Agreement
by the Representatives, will be binding on all of the Underwriters. |
| 21. | Partial Unenforceability. The invalidity or unenforceability
of any section, paragraph, clause or provision of this Agreement shall not affect the validity or enforceability of any other section,
paragraph, clause or provision hereof. If any section, paragraph, clause or provision of this Agreement is for any reason determined to
be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make
it valid and enforceable. |
| 22. | General. This Agreement constitutes the entire agreement
of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof. In this Agreement, the masculine, feminine and neuter genders and the singular
and the plural include one another. The section headings in this Agreement are for the convenience of the parties only and will not affect
the construction or interpretation of this Agreement. This Agreement may be amended or modified, and the observance of any term of this
Agreement may be waived, only by a writing signed by the Company and the Representatives. |
| 23. | Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement may be delivered via facsimilie, electronic mail (including pdf or any electronic signature complying
with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
If the foregoing is in accordance
with your understanding please indicate your acceptance of this Agreement by signing in the space provided for that purpose below.
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Very truly yours, |
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MDXHEALTH SA |
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By: |
/s/ Michael K. McGarrity |
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Name: Michael K. McGarrity |
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Title: CEO & Director |
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| Accepted as of |
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| the date first above written: |
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| TD Securities (USA), LLC |
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| William Blair & Company, L.L.C. |
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| Acting on their own behalf |
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| and as Representatives of several |
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| Underwriters listed on Schedule A to this Agreement. |
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| By: |
TD Securities (USA), LLC |
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| By: |
/s/ Michael Campbell |
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Name: Michael Campbell |
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Title: Managing Director |
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| By: |
William Blair & Company, L.L.C. |
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| By: |
/s/ Rakhee Bhagat |
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Name: Rakhee Bhagat |
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Title: Managing Director, Partner |
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SCHEDULE A
| Name | |
Firm Stock to
be Purchased | | |
Optional Stock
to be Purchased | |
| TD Securities (USA), LLC | |
| 8,880,000 | | |
| 1,332,000 | |
| William Blair & Company, L.L.C. | |
| 7,030,000 | | |
| 1,054,500 | |
| BTIG, LLC | |
| 1,295,000 | | |
| 194,250 | |
| Lake Street Capital Markets, LLC | |
| 1,295,000 | | |
| 194,250 | |
| Total | |
| 18,500,000 | | |
| 2,775,000 | |
SCHEDULE B
General Use Free Writing Prospectuses
None
SCHEDULE C
Pricing Information
Firm Stock Being Offered: 18,500,000
Optional Stock Being Offered: 2,775,000
Offering Price Per Ordinary Share: $2.00
Underwriting Commission Per Ordinary Share: $0.12
SCHEDULE D
Lock-up Parties
Officers
Michael K. McGarrity
John Bellano
Ron Kalfus
Joe Sollee
Non-Employee Directors
Koen Hoffman
Dr. Jay Sanford Siegel
Hilde Windels
Dr. Regine Slagmulder
Dr. Eric Bednarski
Donnie M. Hardison
Significant Shareholders
MVM V LP
MVM GP (No.5) LP
Exhibit 3.1
Free English translation – for information
purposes only
MDxHealth
Abbreviated: MDxH
Public limited liability company (société
anonyme)
Registered office: 4040 Herstal, rue d’Abhooz
31, CAP Business Center, Zone Industrielle des Hauts-Sarts
Company number: VAT BE 0479.292.440
COORDINATED ARTICLES OF ASSOCIATION AS AT SEPTEMBER 27, 2024
Company incorporated by deed given before notary
public Jean-Philippe Lagae at Brussels on January 10, 2003, as published in the Annexes of the Belgian Official Gazette on January 23
thereafter under number 03010994.
The articles of association were amended on February
7, 2003, by minutes produced by notary public Jean-Philippe Lagae at Brussels, as published in the Annexes of the Belgian Official Gazette
on March 6 thereafter under number 03028086.
The articles of association were amended on June
30, 2003, by minutes produced by notary public Jean-Philippe Lagae at Brussels, as published in the Annexes of the Belgian Official Gazette
on August 5 thereafter under number 03084014.
The articles of association were amended on September
30, 2003, by minutes produced by notary public Jean-Philippe Lagae at Brussels, as published in the Annexes of the Belgian Official Gazette
on October 31 thereafter under number 030114608.
The articles of association were amended on May
12, 2004, by minutes produced by notary public Jean-Philippe Lagae at Brussels, as published in the Annexes of the Belgian Official Gazette
on June 4 thereafter under number 04082179.
The articles of association were amended on June
30, 2004, by minutes produced by notary public Jean-Philippe Lagae at Brussels, as published in the Annexes of the Belgian Official Gazette
on July 24 thereafter under number 04109754.
The articles of association were amended on October
28, 2005, by minutes produced by notary public Jean-Philippe Lagae at Brussels, as published in the Annexes of the Belgian Official Gazette
on November 17 thereafter under number 05164784.
The articles of association were amended on March
22, 2006, by minutes produced by notary public Jean-Philippe Lagae at Brussels, as published in the Annexes of the Belgian Official Gazette
on April 10 thereafter under number 06064934.
The articles of association were amended on March
31, 2006, by minutes produced by notary public Jean-Philippe Lagae at Brussels, as published in the Annexes of the Belgian Official Gazette
on May 2 thereafter under number 06075354.
The articles of association were amended on May
23, 2006, by minutes produced by notary public Jean-Philippe Lagae at Brussels, as published in the Annexes of the Belgian Official Gazette
on June 19 thereafter under number 06098642.
Free English translation – for information purposes only
The articles of association were amended on June
30, 2006, by deed given before notary public Jean-Philippe Lagae at Brussels, as published in the Annexes of the Belgian Official Gazette
on July 19 thereafter under number 06117924.
The articles of association were amended on April
18, 2007, by minutes produced by notary public Jean-Philippe Lagae at Brussels, published in the Annexes of the Belgian Official Gazette
on May 24, 2007 under number 07073858.
The articles of association were amended on October
19, 2007, by deed given before notary public Jean-Philippe Lagae at Brussels, published in the Annexes of the Belgian Official Gazette
on November 6, 2007 under number 07160150.
The articles of association were amended on October
25, 2007, by deed given before notary public Jean-Philippe Lagae at Brussels, published in the Annexes of the Belgian Official Gazette
on November 9, 2007 under number 07162369.
The articles of association were amended on April
24, 2008, by deed given before notary public Jean-Philippe Lagae at Brussels, published in the Annexes of the Belgian Official Gazette
on May 13 following under number 08069822.
The articles of association
were amended on May 30, 2008, by deed given before notary public Paul-Arthur Coëme, at Liège, deputizing for notary public
Jean-Philippe Lagae, at Brussels, published in the Annexes of the Belgian Official Gazette on June 25, 2008 under number 08093577.
The articles of association were amended on November
5, 2008, by deed given before notary public Jean-Philippe Lagae, at Brussels, published in the Annexes of the Belgian Official Gazette
on November 25, 2008, under number 08183262.
The articles of association were amended by minutes
produced by notary public Jean-Philippe Lagae, at Brussels, on December 15, 2008 and deed given before notary public Jean-Philippe Lagae,
at Brussels, on December 18, 2008 published in the Annexes of the Belgian Official Gazette on January 12, 2009, under number 09006273.
The articles of association were amended on April
17, 2009, by minutes produced by notary public Jean-Philippe Lagae, at Brussels, published in the Annexes of the Belgian Official Gazette
on May 5, 2009 under number 09063303.
The articles of association were amended by minutes
produced by notary public Paul-Arthur Cöeme, at Liège, deputizing for notary public Jean-Philippe Lagae, at Brussels, on June
21, 2010, published in the Annexes of the Belgian Official Gazette on July 13, 2010, under number 10103164.
The articles of association were amended by minutes
produced by notary public Anne Michel, associated notary public of the civil company under the form of a private limited liability company
“Michel COËME & Anne MICHEL, Notaires Associés”, whose registered office is at 4420 Liège (Tilleur),
deputizing for notary public Jean-Philippe Lagae, at Brussels, on October 5, 2010, published in the Annexes of the Belgian Official Gazette
on October 26, 2010, under number 10157274.
Free English translation – for information purposes only
The articles of association were amended by minutes
produced by notary public Anne Michel, associated notary public of the civil company under the form of a private limited liability company
“Michel COËME & Anne MICHEL, Notaires Associés”, whose registered office is at 4420 Liège (Tilleur),
deputizing for notary public Jean-Philippe Lagae, at Brussels, on February 18, 2011, published in the Annexes of the Belgian Official
Gazette on March 8, 2011, under number 11301665, respectively on March 18, 2011 under number 11301876.
The articles of association were amended by minutes
produced by notary public Jean-Philippe Lagae, at Brussels, on April 4, 2011 and by deed received by notary public Jean-Philippe Lagae,
at Brussels, on April 8, 2011, published in the Annexes of the Belgian Official Gazette on April 29, 2011 under number 11065384.
The articles of association were amended by minutes
produced by notary public Anne Michel, associated notary public of the civil company under the form of a private limited liability company
“Michel COËME & Anne MICHEL, Notaires Associés”, whose registered office is at 4420 Liège (Tilleur),
deputizing for notary public Jean-Philippe Lagae, at Brussels, on June 21, 2011, published in the Annexes of the Belgian Official Gazette
on July 29, 2011 under number 11117127.
The articles of association were amended by minutes
produced by notary public Jean-Philippe Lagae, at Brussels, on June 15, 2012, published in the Annexes of the Belgian Official Gazette
on June 27, 2012 under number 12113155.
The articles of association were amended by minutes
produced by notary public Jean-Philippe Lagae, at Brussels, on June 28, 2012, and by deed received by notary public Jean-Philippe Lagae,
at Brussels, on July 4, 2012, published in the Annexes of the Belgian Official Gazette on July 23, 2012 under number 12129274.
The articles of association were amended by minutes
produced by notary public Jean-Philippe Lagae, at Brussels, on June 25, 2013, published in the Annexes of the Belgian Official Gazette
on July 15, 2013 under number 13108665.
The articles of association were amended by minutes
produced by notary public Jean-Philippe Lagae, at Brussels, on May 31, 2013, and by deed received by notary public Jean-Philippe Lagae,
at Brussels, on June 27, 2013, published in the Annexes of the Belgian Official Gazette on July 22, 2013 under number 13113354.
The articles of association were rectified by
deed given before notary public Jean-Philippe Lagae, at Brussels, on July 19, 2013, published in the Annexes of the Belgian Official Gazette
on August 2, 2013 under number 13121263.
The articles of association were amended by deed
given before Notary Jean-Philippe Lagae at Brussels on October 14, 2013, published in the Annexes of the Belgian Official Gazette on November
7, 2013 under number 13168649.
The articles of association were amended by minutes
produced by notary public Jean-Philippe Lagae, at Brussels, on November 4, 2014, and by deed received by notary public Jean-Philippe Lagae,
at Brussels, on November 7, 2014, published in the Annexes of the Belgian Official Gazette on December 2, 2014 under number 14216009.
The articles of association were amended by deed
received by notary public Kim Lagae, at Brussels, on April 30, 2015, published in the Annexes of the Belgian Official Gazette on May 29,
2015 under number 15075852.
The articles of association were amended by minutes
produced by notary public Kim Lagae, at Brussels, on June 23, 2015 and deed received by notary public Kim Lagae, at Brussels, on June
26, 2015, published in the Annexes of the Belgian Official Gazette on July 22, 2015 under number 15105340.
Free English translation – for information purposes only
The articles of association were amended by minutes
produced by notary public Kim Lagae, at Brussels, on September 18, 2015, under number 15147487.
The articles of association were amended by deed
received by notary public Kim Lagae, at Brussels, on November 27, 2015, published in the Annexes of the Belgian Official Gazette on December
24, 2015 under number 15179835.
The articles of association were amended by deed
received by notary public Kim Lagae, at Brussels, on May 19, 2016, published in the Annexes of the Belgian Official Gazette on June 16,
2016 under number 1682608.
The articles of association were amended by deed
received by notary public Kim Lagae, at Brussels, on June 20, 2016, published in the Annexes of the Belgian Official Gazette on July 22,
2016 under number 16103134.
The articles of association were amended by minutes
produced by notary public Kim Lagae, at Brussels, on November 2, 2016, and by deed received by notary public Kim Lagae, at Brussels, on
November 7, 2016, under publication.
The articles of association were amended by deed
received by notary public Kim Lagae, at Brussels, on November 10, 2016, published in the Annexes of the Belgian Official Gazette on November
30, 2016 under number 16164007.
The articles of association were amended by deed
received by notary public Kim Lagae, at Brussels, on May 5, 2017, published in the Annexes of the Belgian Official Gazette on May 30,2017
under number 1707858.
The articles of association were amended by minutes
produced by notary public Kim Lagae, at Brussels, on June19, 2017, published in the Annexes of the Belgian Official Gazette on July 10,
2017 under number 17098472.
The articles of association were amended by minutes
produced by notary public Kim Lagae, at Brussels, on March 26, 2018, published in the Annexes of the Belgian Official Gazette on April
13, 2018 under number 18061173.
The articles of association were amended by minutes
produced by notary public Dirk Delbaere, at Brussels, on September 25, 2019, published in the Annexes of the Belgian Official Gazette
on October 22, 2019 under number 19340113.
The articles of association were amended by minutes
produced by notary public Stijn Raes, at Brussels, on May 15, 2020, published in the Annexes of the Belgian Official Gazette on May 20,
2019 under number 20322625.
The articles of association were amended by minutes
produced by notary public Stijn Raes, at Ghent, substituting his colleague the notary Kim Lagae, in Brussels, prevented, on July 30, 2020,
an extract of which was published in the Annexes of the Belgian Official Gazette of the following August 3, under the number 20335998.
The articles of association were amended by minutes
produced by notary public Stijn Raes, at Ghent, on January 26, 2021, an extract of which was published in the Annexes of the Belgian Official
Gazette of the following February 24, under the number 21312254.
Free English translation – for information purposes only
The articles of association were amended by minutes
produced by notary public Stijn Raes, at Ghent, on May 27, 2021, an extract of which was published in the Annexes of the Belgian Official
Gazette of the following June 1, under the number 21333389.
The articles of association were amended by deed
received by notary public Stijn Raes, at Ghent, on November 8, 2021, an extract of which was published in the Annexes of the Belgian Official
Gazette of the following November 18, under the number 21367651.
The articles of association were amended by minutes
produced by notary public Stijn Raes, at Ghent, on May 25, 2022, an extract of which was published in the Annexes of the Belgian Official
Gazette of the following June 13, under the number 22337597.
The articles of association were amended by minutes
produced by notary public Stijn Raes, at Ghent, on August 11, 2022, an extract of which was published in the Annexes of the Belgian Official
Gazette of the following August 22, under the number 22352794.
The articles of association were amended by deed
received by notary public Stijn Raes, at Ghent, on February 7, 2023, an extract of which was published in the Annexes of the Belgian Official
Gazette of the following March 3, under the number 23319331.
The articles of association were amended by deed
received by notary public Stijn Raes, at Ghent, on March 8, 2023, an extract of which was published in the Annexes of the Belgian Official
Gazette of the following March 15, under the number 23322594.
The articles of association were amended by deed
received by notary public Stijn Raes, at Ghent, on June 30, 2023, an extract of which was published in the Annexes of the Belgian Official
Gazette of the following July 7, under the number 23368447.
The articles of association were amended by deed
received by notary public Stijn Raes, at Ghent, on October 20, 2023, an extract of which was published in the Annexes of the Belgian Official
Gazette of the following October 26, under the number 23415497.
The articles of association were amended by deed
received by notary public Emmanuelle Van Hamme, at Ghent, on November 3, 2023, an extract of which was published in the Annexes of the
Belgian Official Gazette of the following November 10, under the number 23424357.
The
articles of association were amended by deed received by notary public Stijn Raes, at Ghent, on November 13, 2023, an extract of which
was published in the Annexes of the Belgian Official Gazette of the following November 30, under the number 23441677.
The
articles of association were amended by deed received by notary public Stijn Raes, at Ghent, on December 15, 2023, an extract of which
was published in the Annexes of the Belgian Official Gazette of January 12, 2024, under the number 24324788.
The
articles of association were amended by deed received by notary public Stijn Raes, at Ghent, on September 27, 2024, an extract of which
was filed for publication in the Annexes of the Belgian Official Gazette.
Free English translation – for information purposes only
TITLE I: FORM - NAME - REGISTERED OFFICE
–
CORPORATE PURPOSE - DURATION
Article 1: Name
The company takes the form of a public limited
liability company under Belgian law (société anonyme).
It has the name “MDxHealth”, abbreviated
“MDxH”.
Article 2: Registered office
The registered office of the company is located
in the Walloon Region.
The board of directors may transfer the registered
office to elsewhere in Belgium in accordance with applicable law.
The company may also, by simple decision of the
board of directors, establish additional administrative offices and business offices, as well as offices and branches in Belgium and abroad.
Article 3: Corporate purpose
The company’s corporate purpose is to engage in
Belgium and abroad, in its own name and on behalf of third parties, alone or in collaboration with third parties, in the following activities:
| ● | All forms of research and development into or involving biological cells and organisms (including gene
methylation) and chemical compounds, as well as the industrialization and commercialization of the results thereof; |
| ● | Research and development into biotechnological or derivative products that could have a market value in
applications related to human and animal healthcare, diagnostics, pharmacogenomics and therapeutics, based amongst other things on the
technology of genetics, genetic engineering and detection, chemistry and cell biology; |
| ● | Commercialization of the aforementioned products and application domains; |
| ● | Acquisition, disposal, exploitation, commercialization and management of intellectual property, property
and usage rights, trade marks, patents, drawings, licenses and any other form of know how. |
The company is also authorised to engage in all
commercial, industrial, financial and real estate transactions which are directly or indirectly related to or which may be beneficial
to the achievement of its corporate purpose.
It may , by means of subscription, contribution,
merger, collaboration, financial participation or otherwise, take interests or participate in any company, existing or to be incorporated,
undertakings, businesses and associations in Belgium or abroad.
The company may manage, re-organize or sell these
interests and can also, directly or indirectly, participate in the board of directors, management, control and winding-up of companies,
undertakings, business and associations in which it has an interest or a participation.
The company may provide guarantees and security
interests for the benefit of these companies, undertakings, businesses and associations, act as their agent or representative, and grant
advances, credit, mortgages or other securities.
Article 4: Duration
The company is incorporated indefinitely.
Except in the event of winding-up by court order
the company can only be dissolved by the extraordinary general shareholders’ meeting with due observance of the applicable legal provisions
relating to the winding-up of companies.
Free English translation – for information purposes only
TITLE II: CAPITAL
Article 5: Share capital
| 5.1. | Share capital and shares |
The share capital
of the company is two hundred million one hundred sixty-one thousand one hundred twelve euros and thirty-seven cents (200,161,112.37).
It is divided into
forty-seven million two hundred eighty-eight thousand ninety-three (47,288,093) shares of no nominal value, each representing the same
fraction of the share capital.
The share capital
is entirely and unconditionally subscribed and fully paid up.
| 5.2. | History of share capital |
At
incorporation, the share capital amounted to sixty-one thousand, five hundred euros (€61,500), represented by two hundred and two
thousand, nine hundred and seventy-five (202,975) shares, fully paid up in cash.
By resolution of the extraordinary general
shareholders’ meeting of February 7, 2003, the share capital was increased by three million, nine hundred and forty thousand, five hundred
euros (€3,940,500), taking it from sixty-one thousand, five hundred euros (€61,500) to four million, two thousand euros (€4,002,000),
by issuing one hundred and ninety-seven thousand and twenty-five (197,025) shares, fully paid up in cash.
By resolution of the extraordinary general
shareholders’ meeting of June 30, 2003, the share capital was increased by six hundred and sixty-six thousand, six hundred and sixty euros
(€666,660), taking from four million, two thousand euros (€4,002,000) to four million, six hundred and sixty-eight thousand,
six hundred and sixty euros (€4,668,660) by issuing thirty-three thousand, three hundred and thirty-three (33,333) preferred “A”
shares, fully paid up in cash.
By resolution of the extraordinary general
shareholders’ meeting of September 30, 2003, the share capital was increased by four million, eight hundred and sixty-six thousand, six
hundred and eighty-one euros and nine cents (€4,866,681.09) taking it from four million, six hundred and sixty-eight million, six
hundred and sixty euros (€4,668,660) to nine million, five hundred and thirty-five thousand, three hundred and forty-one euros and
nine cents (€9,535,341.09) by issuing two hundred and eighteen thousand, one hundred and thirty-nine (218,139) preferred “A”
shares, fully paid up in cash.
By resolution of the extraordinary general
shareholders’ meeting of June 30, 2004, the share capital was plus by four million, six hundred and sixty-six thousand, six hundred and
eighty euros and forty-eight cents (€4,666,680.48), taking it from nine million, five hundred and thirty-five thousand, three hundred
and forty-one euros and nine cents (€9,535,341.09) to fourteen million, two hundred and two thousand, and twenty-one euros and fifty-seven
cents (€14,202,021.57) by issuing one hundred and ninety-five thousand, five hundred and four (195,504) preferred “A” shares,
fully paid up in cash.
By resolution of the extraordinary general
shareholders’ meeting of October 28, 2005, the share capital was increased by nine million euros (€9,000,000), taking it from fourteen
million, two hundred and two thousand, and twenty-one euros and fifty-seven cents (€14,202,021.57) to twenty-three million, two hundred
and two thousand and twenty-one euros and fifty-seven cents (€23,202,021.57) by issuing three hundred and seventy-five thousand (375,000)
preferred “B” shares, fully paid up in cash.
By
resolution of the extraordinary general shareholders’ meeting of March 31, 2006, the share capital was increased by five million, nine
hundred and ninety-nine thousand, nine hundred and eighty-eight euros (€5,999,988), taking it from twenty-three million, two hundred
and two thousand and twenty-one euros and fifty-seven cents (€23,202,021.57) to twenty-nine million, two hundred and two thousand,
and nine euros and fifty-seven cents (€29,202,009.57) by issuing one hundred and ninety-three thousand, five hundred and forty-eight
(193,548) preferred “B” shares, fully paid up in cash.
Following
the resolutions of the extraordinary general shareholders’ meeting of May 23, 2006, of which the realization was established by the notarized
deed of June 30, 2006, and following the exercise of the “Overallotment Warrant” issued by the extraordinary general shareholders’
meeting of May 23, 2006, of which the exercise was established by the aforementioned deed of June 30, 2006, the share capital was increased
by twenty-three million, eight hundred and seventeen thousand, two hundred and five euros (€23,817,205.00) by issuing three million,
three hundred and seventy-three thousand, three hundred and thirty-four (3,373,334) new ordinary shares, fully paid-up in cash, and the
share capital was reduced by ten million, two hundred and seventeen thousand, eight hundred and nine euros (€10,217,809.00) by absorbing
losses without calling in any shares. Following these transactions, the share capital amounted to forty-two million, eight hundred and
one thousand, four hundred and five euros and fifty-seven cents (€42,801,405.57).
Free English translation – for information purposes only
The deed of April
18, 2007 given before notary Jean-Philippe Lagae, Brussels, records that the share capital was increased by seven hundred and forty-seven
thousand, six hundred and sixty-six euros and sixteen cents (€747,666.16) and issuing one hundred and two thousand, five hundred
and sixty (182,560) additional shares, fully paid up through contributions in cash, as a result of the exercise of thirty-six thousand,
five hundred and twelve (36,512) subscription rights, including nine thousand, nine hundred and thirty-seven (9,937) subscription rights
issued by the extraordinary general shareholders’ meeting of May 12, 2004, six thousand, nine hundred (6,900) subscription rights issued
by the board of directors on July 12, 2005 and nineteen thousand, six hundred and seventy-five (19,675) subscription rights issued by
the extraordinary general shareholders’ meeting of March 22, 2006. Following this transaction, the share capital amounted to forty-three
million, five hundred and forty-nine and seventy-one euros and seventy-three cents (€43,549,071.73).
The deed of October
19, 2007 given before notary Jean-Philippe Lagae, Brussels, records that the share capital was increased within the framework of the authorised
capital, resolved upon by the board of directors on October 15, 2006, to the value of four million, three hundred and fifty-four thousand,
nine hundred and fifty-four euros and two cents (€4,354,954.02) by issuing one million, sixty-three thousand, three hundred and fifty-one
(1,063,351) new shares, fully paid up through contribution in cash for a price equal to €10 per share comprising the par value of
the existing shares, i.e. €4.0955 per share, plus an issue premium for the balance .
The deed of October
25, 2007 given before notary Jean-Philippe Lagae, Brussels, records that the share capital was increased by two hundred and eight thousand,
two hundred and two euros and ninety-three cents (€208,202.93) and issuing fifty thousand, eight hundred and thirty-seven (50,837)
shares, fully paid up through contribution in cash as a result of the exercise of ten thousand, four hundred and seventeen (10,417) subscription
rights, including two thousand, six hundred and eighty (2,680) subscription rights issued by the extraordinary general shareholders’ meeting
of May 12, 2004, three thousand (3,000) subscription rights issued by the board of directors’ meeting of July 12, 2005 and four thousand,
four hundred and twenty-five (4,425) subscription rights issued at the extraordinary general shareholders’ meeting of March 22, 2006,
one hundred and eighty-seven (187) subscription rights issued by the board of directors on November 8, 2006 and one hundred and twenty-five
(125) subscription rights issued by the board of directors on April 18, 2007.
Following this
transaction, the share capital amounted to forty-eight million, one hundred and twelve thousand, two hundred and twenty-eight euros and
sixty-eight cents (€48,112,228.68).
The notarized
deed of April 24, 2008 given before notary Jean-Philippe Lagae, Brussels, records that the share capital was increased by two hundred
and fifty-thousand, three hundred and six euros and ninety-six cents (€250,316.96) and issuing sixty-one thousand, one hundred and
twenty (61,120) shares, fully paid up through contribution in cash as a result of the exercise of twelve thousand, two hundred and twenty-four
(12,224) subscription rights, including seven thousand, five hundred (7,500) subscription rights issued by the extraordinary general shareholders’
meeting of May 12, 2004 and four thousand, seven hundred and twenty-four (4,724) subscription rights issued at the extraordinary general
shareholders’ meeting of March 22, 2006.
Following this
transaction, the share capital amounted to forty-eight million, three hundred and sixty-two thousand, five hundred and forty-five euros
and sixty-four cents (€48,362,545.64).
Free English translation – for information purposes only
The notarized
deed of November 5, 2008 drawn up by notary Jean-Philippe Lagae, Brussels, recorded that the share capital was increased by €79,350.31
and the issuance of 19,375 shares, fully paid up through contribution in cash as a result of the exercise of three thousand, eight hundred
and seventy-five (3,875) subscription rights, of which 625 subscription rights issued by the extraordinary general shareholders’ meeting
of May 12, 2004, 2,500 subscription rights issued by the board of directors on July 12, 2005 and 750 subscription rights issued by the
extraordinary general shareholders’ meeting of March 22, 2006.
Following this
transaction, the share capital amounted to forty-eight million, four hundred and forty-one thousand, eight hundred and ninety-five euros
and ninety-five cents (€48,441,895.95_.
The notarized
deed of December 18, 2008, drawn up by notary Jean-Philippe Lagae, Brussels, recorded the increase in the share capital, resolved upon
by the board of directors under the powers pertaining to the authorised capital on December 15, 2008, in the amount of €5,458,797.75
through the issuance of 1,332,877 shares, fully paid up through contribution in cash for a price equal to €6.29 per share comprising
the par value of the existing shares, i.e. €4.0955 per share, plus an issue premium for the balance .
The notarized
deed of April 17, 2009, drawn up by notary Jean-Philippe Lagae, Brussels, recorded the increase of the share capital in the amount of
€ 100,503.37 by issuing 24,540 shares, fully paid up through contribution in cash as a result of the exercise of 4,908 subscription
rights, of which 4,508 subscription rights issued by the extraordinary general shareholders’ meeting of May 12, 2004, and 400 subscription
rights issued by the extraordinary general shareholders’ meeting of March 22, 2006.
Following this
transaction, the share capital amounted to €54,001,197.27.
The extraordinary
general shareholders’ meeting of June 21, 2010, resolved to formally reduce the share capital by incorporating (and expunging) the (accumulated)
losses, without reducing the total number of issued and outstanding shares, by €43,483,535.37 to reduce the share capital to €10,517,661.90.
Pursuant to the
notarized deed of April 8, 2011, drawn up by notary Jean-Philippe Lagae, Brussels, it was recorded that the share capital was increased
as resolved upon by the board of directors under the powers pertaining to the authorised capital on April 4, 2011, to the value of four
million, three hundred and thirty-six thousand, eight hundred and sixty-five euros and ninety-six cents (€4,336,865.96) by issuing
5,436,713 new shares, fully paid up through contribution in cash, for a price of €1.50 per share comprising the par value of the
existing shares, i.e. €0.7977 per share, plus an issue premium for the balance.
Pursuant to the
notarized deed of July 4, 2012, given before notary Jean-Philippe Lagae, Brussels, the share capital increase, resolved upon by the board
of directors under the powers pertaining to the authorised capital on June 28, 2012, was made to the value of five million, four hundred
and ninety-seven thousand and forty euros and eighty-four cents (€5,497,040.84) by issuing 6,891,113 new shares, fully paid up through
contribution in cash, amongst which 1,996,008 shares were issued for a price of €1.503 per share, and 4,895,105 shares were issued
for a price of €1.430 per share, comprising the par value of the existing shares, i.e. €0.7977 per share, plus an issue premium
for the balance.
Pursuant to the
notarized deed of June 25, 2013, drawn up by notary Jean-Philippe Lagae, Brussels, the board of directors increased the share capital
in the framework of the authorised capital to the value of six million, nine hundred and seventy thousand, one hundred and ninety-three
euros and thirteen cents (€6,970,193.32) by issuing eight million, seven hundred and thirty-seven thousand, eight hundred and sixty-three
(8,737,863) new shares, fully paid up through contribution in cash, issued for a price of €2.06 per share, comprising the par value
of the existing shares, i.e. €0.7977 per share, plus an issue premium for the balance.
Free English translation – for information purposes only
Pursuant to the
notarized deed drawn up by notary Jean-Philippe Lagae, in Brussels, on November 7, 2014, it was acknowledged that the share capital increase,
in the framework of the authorised capital, resolved by the board of directors on November 4, 2014, was realised up to two million, seven
hundred and thirty-two thousand, hundred and twenty-two euros and fifty cents (€2,732,122.50), by issuing three million, four hundred
and twenty-five thousand (3,425,000) new shares, fully paid up through contribution in cash, issued for a price of €3.60 per share,
comprising the par value of the existing shares, i.e. €0.7977 per share, plus an issue premium for the balance.
Pursuant to the
notarized deed of April 30, 2015, drawn up by notary Kim Lagae, Brussels, a share capital increase was recorded in the amount of hundred
thirty seven thousand three hundred and fifty three euros and fifty-seven cents (EUR 137,353.57) by the issuance of hundred seventy-two
thousand and hundred eighty seven (172,187) shares, fully paid-up, through contribution in cash, further to the exercise of 172,187 subscription
rights, amongst which 140,000 had been issued in the framework of the May 2010 Sotck Option Plan, 30,000 had been issued in the framework
of the April 2011 Stock Option Plan and 2,187 had been issued in the framework of the May 2012 Stock Option Plan. As a result of this
transaction, the share capital amounts to thirty million hundred ninety one thousand and two hundred thirty eight euros and nine cents
(EUR 30,191,238.09).
Pursuant to the
deed received by notary Kim Lagae, at Brussels, on 26 June 2015, it was acknowledged that the capital increase, in the framework of the
authorised capital, resolved by the board of directors on 23 June 2015, was realised in the amount of four million nine hundred and five
thousand and eight hundred fifty-five euros (€4,905,855), through the issuance of six million hundred fifty thousand new shares,
entirely paid-up, through a contribution in cash, issued at the price of four euros and fifty cents (€ 4.50) per share, including
the fractional value of existing shares, i.e. 0,7977 euro per share, increased with an issuance premium for the balance.
Pursuant to the
notarized deed received by the notary Kim Lagae, at Brussels, on 18 September 2015, the board of directors increased the share capital,
in the framework of authorised capital, up to eight hundred sixty-seven thousand, sixty-four euros and eighty cents (€ 867,064.80)
by issuing one million, eighty-six thousand, nine hundred and fifty-six (1,086,956) fully paid up new shares by a contribution in kind,
issued at a price of 4.14 euros per share, including the fractional value of the existing shares, i.e., 0.7977 euro per share, increased
by an issue premium for the balance.
Pursuant to the
notarized deed of November 27, 2015, drawn up by notary Kim Lagae, Brussels, a share capital increase was recorded in the amount of fifty
four thousand three hundred and ninety-two euros and seventy-seven cents (EUR 54,392.77) by the issuance of sixty eight thousand and hundred
eighty seven (68,187) shares, fully paid-up, through contribution in cash, further to the exercise of 68,187 subscription rights, amongst
which 20,000 had been issued in the framework of the April 2011 Stock Option Plan, 42,187 had been issued in the framework of the March
2012 Stock Option Plan and 6,000 had been issued in the framework of the June 2012 Stock Option Plan. As a result of this transaction,
the share capital amounts to thirty six million eighteen thousand five hundred fifty-five euros and sixty-six cents (EUR 36,018,550.66).
Pursuant to the
notarized deed of May 19, 2016, drawn up by notary Kim Lagae, Brussels, a share capital increase was recorded in the amount of ninety-two
thousand five hundred and thirty-three euros and twenty cents (EUR 92,533.20) by the issuance of one hundred and sixteen thousand (116,000)
shares, fully paid-up, through contribution in cash, further to the exercise of 116,000 subscription rights, amongst which 105,000 had
been issued in the framework of the April 2011 Stock Option Plan, 11,000 had been issued in the framework of the May 2012 Stock Option
Plan. As a result of this transaction, the share capital amounts to thirty-six million, one hundred and eleven thousand, eighty-three
euros and eighty-six cents (EUR 36,111,083.86).
Pursuant to the
notarized deed received by the notary Kim Lagae, at Brussels, on 7 November 2016, following the decision of the board of directors from
November 2, 2016, to increase the share capital, in the framework of authorised capital, up to three million six hundred, eleven thousand,
one hundred fifty-seven euro and fifty-nine cents (€ 3,611,157.59) by issuing four million five hundred twenty-six thousand, nine
hundred and sixty-two shares (4,526,962) fully paid up new shares by a contribution in cash, issued at a price of 4.50 euros per share,
including the fractional value of the existing shares, i.e., 0.7977 euro per share, increased by an issue premium for the balance.
Free English translation – for information purposes only
Pursuant to the
notarized deed of November 10, 2016, drawn up by notary Kim Lagae, Brussels, a share capital increase was recorded in the amount of thirty-nine
thousand eighty-seven euros and thirty cents (EUR 39,087.30) by the issuance of forty-nine thousand (49,000) shares, fully paid-up, through
contribution in cash, further to the exercise of 49,000 subscription rights, amongst which 25,000 had been issued in the framework of
the March 2012 Stock Option Plan, 24,000 had been issued in the framework of the May 2012 Stock Option Plan. As a result of this transaction,
the share capital amounts to thirty-nine million, seven hundred sixty-one thousand, three hundred twenty-eight euro and seventy-five cents
(€ 39,761,328.75). Free English translation – for information purposes only 10 Pursuant to the notarized deed of May 5, 2017,
drawn up by notary Kim Lagae, Brussels, a share capital increase was recorded in the amount of eighty-two thousand eight hundred eleven
euros and sixty-three cents (EUR 82,811.63) by the issuance of a hundred three thousand, eight hundred thirteen (103,813) shares, fully
paid-up, through contribution in cash, further to the exercise of 103,813 subscription rights, amongst which 77,813 had been issued in
the framework of the March 2012 Stock Option Plan, 26,000 had been issued in the framework of the May 2012 Stock Option Plan. As a result
of this transaction, the share capital amounts to thirty-nine million, eight hundred forty-four thousand, one hundred forty euro and thirty-eight
cents (€ 39,844,140.38).
Pursuant to the
notarized deed received by the notary Kim Lagae, at Brussels, on 26 March 2018, following the decision of the board of directors from
March 21, 2018, to increase the share capital, in the framework of authorised capital, up to seven million nine hundred sixty-eight thousand
nine hundred twenty-eight euro and seven cents (€ 7,968,928.07) by issuing nine million nine hundred eighty-nine thousand eight hundred
eighty-one shares (9,989,881) fully paid up new shares by a contribution in cash, issued at a price of 3.60 euros per share, including
the fractional value of the existing shares, i.e., 0.7977 euro per share, increased by an issue premium for the balance.
Pursuant to the
notarized deed received by the notary Dirk Delbaere, at Ghent, substituting his colleague, the notary Kim Lagae, unable to attend at Brussels,
on October 1, 2019, following the decision of the board of directors from September 25, 2019, to increase the share capital, in the framework
of authorised capital, up to nine million eight hundred fifty euros and sixty cents (€ 9,000,850.60) by issuing ten million five
hundred eighty-nine thousand two hundred thirty-six shares (10,589,236) fully paid up new shares by a contribution in cash, issued at
a price of eighty-five cents (€ 0.85) per share, including the fractional value of the existing shares, i.e., 0.7977 euro per share,
increased by an issue premium for the balance.
Pursuant to the
notarized deed received by the notary Stijn Raes, at Ghent, substituting his colleague, the notary Kim Lagae, unable to attend at Brussels,
on May 15, 2020, the board of directors increased the share capital of an amount of twelve million seven hundred thirty-eight thousand
and six hundred thirty-two euros and ninety-four cents (€ 12,738,632.94) by issuing twenty million one hundred sixty-two thousand
nine hundred twenty-four shares (20,162,924) new shares at a subscription price of (rounded) € 0.632 per share (or € 12,738,632.94
in aggregate), fully paid up in cash
Free English translation – for information purposes only
Pursuant to the notarized deed received
by the notary Stijn Raes, at Ghent, on January 26, 2021, it has been noted that the capital increase, within the framework of the authorised
capital, decided by the board of directors on January 21, 2021, has been realised in the amount of twenty-four million nine hundred and
ninety-nine thousand nine hundred and thirty cents (EUR 24,999,999.30) (issue premium included) through the issue of twenty-seven million
seven hundred and seventy-seven thousand seven hundred and seventy-seven (27,777,777) new shares, fully paid up by means of a cash contribution,
issued at a price of ninety cents (EUR 0.90) per share, comprising the accounting par value of the existing shares, i.e. EUR 0.7608 (rounded)
per share, increased by an issue premium for the balance.
Pursuant to the notarized deed received
by the notary Stijn Raes, at Ghent, on November 8, 2021, it has been noted that the capital increase, within the framework of the authorised
capital, decided by the board of directors on October 27, 2021, has been realised in the amount of thirty-nine million sixty-five thousand
eight hundred ninety-one euros and thirteen cents (EUR 39,065,891.13) (issue premium included) through the issue of thirty-seven million
five hundred thousand (37,500,000) new shares, fully paid up by means of a contribution in kind of an mount in USD, issued at a price
of one euro and four cents (EUR 1.04) (rounded) per share, comprising the accounting par value of the existing shares, i.e. EUR 0.7608
(rounded) per share, increased by an issue premium for the balance.
Pursuant to the notarized deed received
by the notary Stijn Raes, at Ghent, on August 11, 2022, the board of directors increased the share capital of the Company by an amount
of four million eight hundred seventy-seven thousand ninety-seven euros and fifty cents (EUR 4.877,097.50) through the issue of six million
nine hundred eleven thousand seven hundred ten (6,911,710) new shares, fully paid up by a contribution in kind, issued at a price of seven
thousand fifty-six cents (EUR 0.7056) per share.
Pursuant to the notarized deed received
by the notary Stijn Raes, resident notary in Ghent, on February 7, 2023, it has been established that the capital increase, within the
framework of the authorized capital, decided by the board of directors on January 27, 2023 has been carried out up to an amount of thirty-seven
million one hundred and nineteen thousand five hundred and twenty-four euros and eighty-seven centimes (EUR 37,119,524.87) by the issue
of one hundred million (100,000,000) new shares, fully paid up, issued at a price of thirty-seven cents (EUR 0.37) (rounded) per new share.
Pursuant to the
notarized deed received by the notary Stijn Raes, resident notary in Ghent, on March 8, 2023, it has been established that the capital
increase, within the framework of the authorized capital, decided by the board of directors on January 27, 2023 has been carried out up
to an amount of two million eight hundred twelve thousand nine hundred thirty-nine euros and fifty-two cents (EUR 2,812,939.52) by
the issue of seven million five hundred thousand (7,500,000) new shares, fully paid up, issued at a price of thirty-seven cents (EUR 0,37)
(rounded) per new share.
Pursuant to the
notarized deed received by the notary Stijn Raes, at Ghent, on October 20, 2023, the board of directors increased the share capital of
the Company by an amount of eight hundred thirty-one thousand one hundred twenty-three euros and thirty-one cents (EUR 831,123.31) through
the issue of two million five hundred thousand (2,500,000) new shares, fully paid up by a contribution in kind, issued at a price of three
thousand three hundred twenty-four cents (EUR 0.3324) per share.
Pursuant to the
notarized deed received by the notary Stijn Raes, at Ghent, on November 13, 2023, it has been established that the share consolidation,
decided by the extraordinary general shareholders’ meeting of November 3, 2023, has been carried out on the basis of a ratio of one (1)
new share for ten (10) old shares, as a consequence of which the new decreased number of shares, after the share consolidation, is twenty-seven
million two hundred eighty-eight thousand ninety-three (27,288,093).
Pursuant to the
notarized deed received by the notary Stijn Raes, at Ghent, on September 27, 2024, it has been established that the capital increase,
within the framework of the authorized capital, decided by the board of directors on September 24, 2024 has been carried out up to
an amount of thirty-five million eight hundred fifty-eight thousand three hundred fifty-nine euros and forty-eight cents (EUR 35,858,359.48)
by the issue of twenty million (20,000,000) new shares, fully paid up, issued at a price of one euro and seventy-nine cents (EUR 1.79)
(rounded) per new share.
Free English translation – for information purposes only
Article 6: Authorised
capital
The board of directors is authorised to increase
the share capital of the company on one or several occasions by a maximum aggregate amount of [EUR 163,471,629.58].
The board of directors may increase the share
capital by contributions in cash or in kind, by capitalisation of reserves, whether available or unavailable for distribution, and capitalisation
of issue premiums, with or without the issuance of new shares, with or without voting rights, that will have the rights as will be determined
by the board of directors. The board of directors is also authorised to use this authorisation for the issuance of convertible bonds or
subscription rights, bonds with subscription rights or other securities.
This authorisation is valid for a period of five
years as from the date of publication in the Annexes to the Belgian Official Gazette of an extract of the minutes of the extraordinary
general shareholders’ meeting of the company held on [June 30, 2023].
In the event of a capital increase decided by
the board of directors within the framework of the authorised capital, all issue premiums booked, if any, will be accounted for in accordance
with the provisions of these articles of association.
The board of directors is authorised, when exercising
its powers within the framework of the authorised capital, to restrict or cancel, in the interest of the company, the preferential subscription
rights of the shareholders. This restriction or cancellation of the preferential subscription rights can also be done in favour of members
of the personnel of the company or of its subsidiaries, or in favour of one or more persons other than members of the personnel of the
company or of its subsidiaries.
The board of directors is authorised, with the
right of substitution, to amend the articles of association, after each capital increase that has occurred within the framework of the
authorised capital, in order to bring them in conformity with the new situation of the share capital and the shares.
Article 7: New rights issue - Preferential
subscription right - New rights issue to the benefit of the personnel
The decision to increase the
share capital is taken by the general shareholders’ meeting or, as the case may be, the board of directors, within the framework of the
authorised capital, subject to observance of the provisions of the Belgian Companies and Associations Code and of these articles of association.
The general shareholders’ meeting
or, as the case may be, the board of directors, within the framework of the authorised capital, determines the issuance price and issuance
conditions for the new shares upon proposal of the board of directors.
In the event the new shares are issued with an
issue premium, the issue premium must be immediately paid-up in full upon subscription to the shares.
All issue premiums booked will be accounted for
in one or more separate accounts as net equity on the liabilities side of the company’s balance sheet and will be subscribed by contributions
actually paid up in cash or in kind, other than in industry, on the occasion of the issue of shares or profit shares. These issue premiums
may only be reduced in execution of a regular decision of the company in accordance with the Code of Companies and Associations.
Upon every increase of the share
capital, the shares subscribed to in cash must first be offered to the shareholders in accordance with the applicable legal provisions.
The preferential subscription right can be limited
or cancelled in the interest of the company by the general shareholders’ meeting or, as the case may be, the board of directors, within
the framework of the authorised capital, in accordance with the relevant legal provisions.
The general shareholders’ meeting, or as the case
may be, the board of directors within the framework of the authorised capital, may decide to increase the share capital to the benefit
of the personnel of the company or its subsidiaries, subject to observance of the provisions of the Belgian Companies and Associations
Code.
Article 8: Decrease of share capital
The company may decrease the share capital in
accordance with the relevant legal provisions.
Free English translation – for information purposes only
TITLE III: SHARES – OTHER SECURITIES
Article 9: Nature of the securities
Shares that are not fully paid-up are in registered
form.
Fully paid-up shares and other securities are
in registered form, in dematerialised form or, to the extent allowed by law and the relevant issuance conditions of the relevant securities,
in another form, at the discretion of the relevant holder of such shares or such securities. Any holder of securities may request at any
time and at his/her/its expense that his/her/its fully paid-up securities be converted into another form, to the extent allowed by the
law and the relevant issuance conditions of such securities.
Dematerialised securities are represented by an
entry on an account, in the name of the owner or the holder, with a certified account holder or with a settlement institution. The transfer
of dematerialised securities is registered from one account to another.
A share register is kept at the registered office
of the company and may be split by decision of the board of directors in accordance with the provisions of the applicable law. The board
of directors can appoint a third party of its choice to keep any part of the split share register. Subject to applicable provisions of
companies, financial and securities laws, and unless decided otherwise by the board directors in accordance with article 43 of the articles
of association, dividends and other distributions (as the case may be) by the company on shares can be made in euro (EUR) or United States
dollars (USD) depending on the component of the (split) share register on which the shares are reflected.
The (split) register of registered shares and
the registers of other registered securities, as the case may be, can be kept electronically. Each holder of securities can consult the
(split) register with respect to his/her/its securities. The board of directors can appoint a third party of its choice to keep this (split)
electronic register.
All recordings in the (split) share register and
the registers of other registered securities, including transfers and conversions, can be validly made on the basis of documents or instructions
submitted electronically or via any other means by the transferor, the transferee and/or the holder of the securities, as applicable.
Article 10: Shares
not paid up in full - Requirement to pay up shares
The undertaking to pay-up a share in full is unconditional
and indivisible.
If shares which have not been paid-up in full
belong to several persons undividedly, each of them is liable for the payment of the entire amount of the called payments due.
Additional payment or payment in full is called
by the board of directors at the time it determines. Notice thereof is given to the shareholders by registered letter or, for shareholders
who have communicated their e-mail address to the company in accordance with the provisions of the Belgian Companies and Associations
Code, by e-mail, indicating the bank account to which the payment should be made, to the exclusion of all other methods of payment, by
means of wire transfer or cash deposit. The shareholder is in default by the mere lapse of the term determined in the notice and owes
interest to the company at the legal interest rate effective at that time, plus two percent.
As long as the calls for payments on a share that
are due have not been made in accordance with this provision, the exercise of the rights attached to the share concerned are suspended.
Earlier payments on shares cannot be made without
the prior permission of the board of directors.
Article 11: Indivisibility of the securities
Securities are indivisible vis-à-vis the
company.
In case securities belong to multiple holders
of rights in rem, are pledged, or in case the rights attached to the securities are subject to an undivided ownership, usufruct or any
other manner of division of the rights attached to such securities, the board of directors can suspend all rights attached to such securities
until one person has been identified towards the company as the holder of those securities.
All notices, writs and other notifications by
the company will occur validly and exclusively, as the case may be, to the person appointed as owner vis-à-vis the company, or
to the common representative so appointed.
Free English translation – for information purposes only
Notwithstanding the foregoing, and unless a will
or an agreement provides otherwise, the usufructuary of securities shall exercise all the rights attached to those securities.
Article 12: Distraint
Heirs, creditors, or other rightful claimants
of a shareholder may in no circumstances intervene in the management of the company, nor cause any distraint to be imposed on the goods
and securities of the company, nor pursue the liquidation of the company and the distribution of its assets.
In exercising their rights, they must abide by
the balance sheets and inventories of the company and comply with the decisions of the general shareholders’ meeting.
Article 13: Issue of bonds, subscription rights
and other securities giving right to shares
The company may issue mortgage bonds or other
bonds by resolution of the board of directors and on such conditions as it shall determine.
The general shareholders’ meeting or the board
of directors, acting within the framework of the authorised capital, may issue convertible bonds, bonds repayable into shares, subscription
rights, or any other financial instrument giving an entitlement to shares.
The general shareholders’ meeting or the board
of directors, acting within the framework of the authorised capital, may, in the interest of the company, restrict or cancel the preferential
subscription rights of the shareholders in accordance with the relevant legal provisions, including in favour of one or more specified
persons other than members of the personnel of the company or of its subsidiaries.
In accordance with applicable law, holders of
shares without voting rights, profit certificates without voting rights, convertible bonds, subscription rights or certificates which
were issued with cooperation of the company have the right to attend shareholders’ meetings, but only in a consultative capacity.
Title
IV: transparency OBLIGATIONS
Article
14: Transparency obligation
Each natural or legal person acquiring or transferring
voting securities of the company, whether or not representing the share capital of the company, must comply with the relevant notification
and information obligations that are imposed by applicable law.
Article
15: Voting rights
Non-compliance with the relevant notification
and information obligations that are imposed by applicable law in relation to the acquisition or transfer of voting securities of the
company, whether or not representing the share capital of the company, may result, in accordance with applicable law, a suspension of
the voting rights attached to the relevant voting securities or such other consequence as provided for by applicable law.
TITLE V: ACQUISITION AND DISPOSAL OF TREASURY
SHARES
Article 16: Acquisition and disposal of treasury
shares
The company may acquire, dispose of or pledge
its own shares, profit certificates or any certificates relating thereto subject to the compliance with the relevant legal provisions.
TITLE
VI: GOVERNANCE AND REPRESENTATION
Article
17: Powers of the board of directors
The company has opted for a one-tier management
model whereby the board of directors has the authority to carry out all actions that are useful or serve to achieve the corporate purpose
of the company, with the exception of those that according to law are reserved to the general shareholders’ meeting.
Article
18: Composition of the board of directors
The company is governed by a board of directors,
acting as collective body and consisting of at least three (3) directors.
If a legal entity is appointed director it must
appoint a permanent representative charged with the performance of the mandate in the name of and for the account of the legal entity
director.
The directors are appointed by the general shareholders’
meeting.
The term of their mandate shall in any event not
exceed four (4) years.
Free English translation – for information purposes only
Unless the relevant appointment resolution provides
otherwise, the term of their mandate shall run from the general shareholders’ meeting at which they are appointed to the ordinary general
meeting in the financial year in which the term of their mandate expires in accordance with the appointment resolution.
The directors can be dismissed by the general
shareholders’ meeting in accordance with the applicable legal provisions.
A director whose mandate has ended may be re-appointed.
Should the mandate of a director become vacant,
for any reason whatsoever, the remaining directors shall have the right to temporarily fill such vacancy (co-optation). The next general
shareholders’ meeting must confirm the mandate of the co-opted director; if confirmed, the co-opted director completes the mandate of
his/her/its predecessor, unless the general shareholders’ meeting decides otherwise. In the absence of confirmation, the mandate of the
co-opted director ends at the end of the general shareholders’ meeting, without prejudice to the regularity of the composition of the
board of directors up to that moment in time.
In case of more than one vacancy, the remaining
directors shall have the right to fill all such vacancies simultaneously. As long as the general shareholders’ meeting or the board of
directors, for any reason whatsoever, does not fill the vacancy, the directors of whom the mandate has ended will remain in function if
this is needed for the board of directors to maintain the minimum number of directors as required by applicable law and the articles of
association.
Article 19: Remuneration
The general shareholders’ meeting decides whether
the mandate of a director will be remunerated or not, by granting a fixed and/or variable remuneration.
The amount will be determined by the general shareholders’
meeting and will be accounted for as a general expense of the company.
Article 20: Chairman
The board of directors will appoint a chairman
amongst its members.
The chairman, or if the chairman is absent, a
director appointed by the other directors present, shall chair the meetings of the board of directors.
Article 21: Conflicts of interest
If a director has a direct or indirect financial
interest in accordance with Article 7:96 of the Belgian Companies and Associations Code, which is contrary to a decision or transaction
that falls within the powers of the board of directors, the provisions of Article 7:96 of the Belgian Companies and Associations Code
must be complied with by the director concerned, as well as by the board of directors in its deliberations and resolutions.
If more than one director finds himself in this
position, and applicable law prohibits them from participating in the discussions or voting in connection therewith, the resolutions can
be validly passed by the remaining directors, even if in these circumstances more than half of the directors are no longer present or
validly represented.
Article 22: Convening of meetings of the board
of directors
The board of directors meets whenever the interest
of the company so requires, as well as any time two directors so request.
The board of directors shall be convened by the
chairman. If the chairman has not convened the board of directors within 14 days as from such request of the directors, the directors
who requested a meeting may validly convene the meeting.
The notice of meeting will mention the place,
date, hour and agenda for the meeting and be sent out at least one week prior to the meeting by letter, telefax or any other written (possibly
electronic) means.
When all the directors are present or validly
represented, the valid convening of the meeting cannot be challenged.
Article 23: Meetings of the board of directors
The meetings of the board of directors are chaired
by the chairman.
In the absence of the chairman, the meeting is
chaired by another director.
The board of directors can only validly deliberate
and resolve on matters appearing on the agenda and only provided that at least half of its members are present or represented at the meeting.
If this quorum requirement is not met at a first meeting, a second meeting of the board of directors may be convened which will validly
deliberate and decide regardless of the number of directors present or represented, on the understanding that at least two (2) directors
must be present, either physically at the meeting or by telecommunication means.
Free English translation – for information purposes only
The requirement to be present shall not apply
to resolutions in which the majority of the members of the board of directors would not participate in accordance with Article 7:96 of
the Belgian Companies and Associations Code with regard to conflicts of interest, but provided that the majority of the other directors
are present or represented at this meeting.
The board of directors can only validly deliberate
and resolve on matters not appearing on the agenda if all members of the board of directors are present at the meeting and have consented
thereto.
This consent is assumed to have been given if
no objection is recorded in the minutes.
Any director who cannot be present in person at
a meeting may participate in the deliberation and voting with the aid of telecommunication means such as telephone or videoconference,
subject to the condition that all participants to the meeting can communicate directly with all other participants.
Any director may instruct one of his colleagues
merely by letter, telegram, telex, telefax, or any other written communication means to represent him at a specified meeting of the board
of directors and to vote for him and in his place. A director giving such instructions is regarded as being present at the meeting. A
director can represent several of his fellow members of the board of directors.
Resolutions of the board of directors are passed
by majority vote, unless otherwise required by the articles of association or applicable law.
The resolutions of the board of directors may
be taken by unanimous written resolution of all directors, with the exception of those resolutions for which the articles of association
exclude this possibility (as the case may be).
Article 24: Minutes of the board of directors
Minutes are kept of the resolutions of the board
of directors, which shall be kept at the registered office of the company and are signed by the chairman and in his absence by the director
chairing the meeting and by at least the majority of the board members present.
Copies and excerpts of minutes to be submitted
in court or elsewhere shall be validly signed by two directors acting jointly, or by the director to whom powers of the day-to-day management
have been delegated.
Article 25: Special committees
The board of directors shall have the power and,
to the extent required by applicable law, the obligation to establish, in its midst and under its responsibility, one or more advisory
committees, such as (but not limited to) an audit committee, a nomination committee and a remuneration committee (which can be combined
with the nomination committee). The board of directors determines the composition and duties of these committees.
Title
VII: Delegation of powers
Article 26: Day-to-day management – Delegation
of powers
The board of directors may appoint one or more
managing director(s) and grant them the most extensive powers for the day-to-day management of the company, the representation with regard
to this day-to-day management and the implementation of the decisions of the board of directors.
The board of directors and the managing director(s)
may grant special and certain powers of attorney to one or more persons of their choice.
Title
VIII: Representation of the company
Article 27: Representation of the company
Without prejudice to the general representative
powers of the board of directors as a collective body, the company shall be validly represented in and out of court by two directors,
acting jointly.
Free English translation – for information purposes only
As to the day-to-day management, the company is
also validly represented in and out of court by one or more persons charged with the day-to-day management, acting alone or jointly in
accordance with the delegation resolution of the board of directors;
In addition, the company is validly represented
by special attorneys-in-fact acting within the limits of the powers granted to them.
When the company is appointed director, manager
or liquidator of another company, it appoints amongst its shareholders, directors or members of the personnel a permanent representative
who shall be charged with the performance of the mandate in the name of and for account of the company.
Title
IX: AUDITS
Article 28: Statutory auditors
The audit of the financial situation, the financial
statements and the validity of the transactions to be reported in the financial statements, must be entrusted to one or more statutory
auditors.
The statutory auditors are appointed and remunerated
in accordance to the rules set forth in the Belgian Companies and Associations Code.
Title
X: GENERAL SHAREHOLDERS’ MEETINGS
Article 29: Annual, special and extraordinary
general shareholders’ meeting
The annual general shareholders’ meeting must
each year be convened on the last Thursday of May at 3 p.m. (Belgian time).
If this day would be a Belgian public holiday,
the annual general shareholders’ meeting shall be held on the previous business day. In these articles of association, “business
day” shall mean any calendar day, with the exception of Saturdays, Sundays and Belgian public holidays.
At any time a special or extraordinary general
shareholders’ meeting can be convened to discuss any matter falling within its powers.
Each general shareholders’ meeting is held at
the registered office of the company or at any other location indicated in the notice convening the meeting.
Article 30: Meeting - powers - obligation
The board of directors and any statutory auditor
of the company may, acting alone, convene a general shareholders’ meeting. They must convene the annual general shareholders’ meeting
on the day determined by these articles of association.
The board of directors and statutory auditor are
obliged to convene the general shareholders’ meeting within three (3) weeks when shareholders representing at least one tenth of the share
capital so request, with at least the items on the agenda proposed by the shareholders concerned.
In the notice convening the general shareholders’
meeting, other items may be added on the agenda than those included therein by the shareholders.
Article 31: Notices convening shareholders’
meetings
The notices convening general shareholders’ meetings
must be issued in accordance with the applicable legal provisions.
Convening notices drawn up by the board of directors
may be validly signed in its name by a person to whom the day-to-day management of the company has been delegated.
Article 32: Admission – Prior formalities
In order to be admitted to and participate to
a general shareholders’ meeting, shareholders must comply with the relevant registration, notice, filing and other formalities as required
by applicable law or as shall be set out (subject to applicable law) in the notice convening the meeting.
The board of directors shall have the ability
to determine that the right to attend the general shareholders’ meetings and to exercise the voting right at such meetings (as the case
may be) is determined by the registration of the ownership of the securities concerned in the name of the holder of such securities on
the third (3rd) business day prior to the date of the relevant general shareholders’ meeting (or such other date as shall be set out in
the notice convening the general shareholders’ meeting, but which cannot be earlier than the 15th calendar date before the relevant general
shareholders’ meeting), at midnight at the end of such day (Brussels time) (such date and hour being the relevant registration date),
by means of the registration of such securities in the relevant (portion of the split) register book for such securities, or in the accounts
of a certified account holder or relevant settlement institution for the securities concerned.
Free English translation – for information purposes only
The board of directors may make participation
to the general shareholders’ meetings dependent on a requirement of notification by the securities holders concerned to the company, or
to the person appointed for this purpose by the company, on a date to be determined by the board of directors before the date of the scheduled
meeting, that such securities holder intends to attend the meeting, stating the number of securities with which such securities holder
wishes to participate. The manner in which such notification must be made (as the case may be) must be set out in the notice convening
the general shareholders’ meeting.
The representatives of legal entities have to
provide documents showing their capacity as corporate body or special proxy holder.
Natural persons, corporate bodies or proxy holders
who participate in the general shareholders’ meeting must be able to provide proof of their identity.
Holders of profit-sharing certificates, shares
without voting rights, convertible bonds, subscription rights or other securities issued by the company, as the case may be, as well as
holders of certificates issued with cooperation of the company representing securities issued by the company, if any, can participate
in the general shareholders’ meeting insofar as the law or the articles of association allow this and, if applicable, give them the right
to participate in the vote. If they wish to participate, they will be subject to the same formalities of prior deposit and notice, of
the form and the deposit of a proxy, and of admission, as those to which the shareholders are subject.
Prior to participating to the meeting, the shareholders
or their proxies must sign the attendance list, stating :
| a. | the identity of the shareholder, |
| b. | the name of the proxy, and |
c. the
number of shares they represent.
Article 33: Representation of shareholders
Notwithstanding the legal provisions with respect
to legal representation, each security holder who can participate in the general shareholders’ meeting, can be represented at a general
shareholders’ meeting by a proxy holder who has been granted a handwritten proxy or a proxy on another durable medium recognized by law.
Such proxies must be granted and submitted to
the company in accordance with the applicable law and/or as set out (in accordance with the applicable law) in the convening notice, as
the case may be.
The holders of a proxy must comply with the relevant
legal provisions concerning proxies for general shareholders’ meetings, as relevant.
The board of directors can establish a form for
the proxies. The proxy forms will be made available to the security holders.
Article 34: Bureau
The chairman of the board of directors, or in
his absence, a director appointed by the other directors, shall chair the general shareholders’ meeting.
The chairman shall appoint a secretary, who may
be or may not be a shareholder; the meeting elects one or two tellers.
The persons mentioned in this article constitute
the bureau of the meeting.
Article 35: Adjournment of the meeting
The board of directors has the right, during the
annual general shareholders’ meeting, to adjourn the resolution relating to the approval of the annual accounts for three (3) weeks. This
adjournment does not affect the other decisions already taken, unless the general shareholders’ meeting decides otherwise in this respect.
The next general shareholders’ meeting has the right to definitively adopt the annual accounts.
The board of directors also has the right, during
the general shareholders’ meeting, to adjourn any other general shareholders’ meeting once by three (3) weeks. This adjournment does not
affect the resolutions already passed by this meeting, unless the general shareholders’ meeting decides otherwise in this respect.
Free English translation – for information purposes only
At the next general shareholders’ meeting, the
items on the agenda on which no final decision was taken at the previous general shareholders’ meeting will be dealt with further.
Subject to applicable law, additional items on
the agenda may be added to the agenda of the next general shareholders’ meeting.
Subject to applicable law, the formalities completed
in order to attend the first general shareholders’ meeting, including registration for the general shareholders’ meeting, and, as the
case may be, the deposit of proxies, shall remain valid for the second general shareholders’ meeting.
Shareholders who were not present or represented
at the previous (adjourned) general shareholders’ meeting will be admitted to the next general shareholders’ meeting, provided that they
have complied with the formalities set out in the applicable legal provisions and these articles of association.
Article 36: Decisions on matters not on the
agenda - Amendments
The general shareholders’ meeting cannot validly
deliberate or decide on the items that are not included or implicitly contained in the agenda, unless all shareholders are present or
represented at the meeting and unanimously agree and if, in the case of a vote by mail, the form authorises a proxy to make such a decision.
The required consent is assumed to exist, if no objection is recorded in the minutes of the meeting.
Article 37: Voting rights
Each share gives the right to one vote.
If a share is subject to a right of usufruct,
the exercise of the voting right attached to this share is exercised by the common representative appointed in accordance with article
11, and, failing a common representative, the voting right is suspended.
The voting rights attached to shares that have
been pledged, are exercised by the owner-pledgor.
Article 38: Decision-making at the general
shareholders’ meeting
The general shareholders’ meeting may validly
deliberate and pass resolutions regardless of the number of shares present or represented, except in cases where the applicable law requires
a certain attendance quorum.
The resolutions of the general shareholders’ meeting
are validly passed by a simple majority of the votes validly cast at the meeting, except in the cases where applicable law or these articles
of association provide for another majority.
In the event votes are tied, the proposal is rejected.
Voting shall occur orally or by calling the names
or by show of hands unless the chairman of the meeting thinks it preferable to vote by another method, such as voting slips or electronic
means.
Shareholders’ meetings may be transmitted or broadcast
live by telephone conferencing or video conferencing, or any other means of transmission and/or telecommunication.
Article 39: Remote voting or participation
If the convening notice so provides, a shareholder
may, prior to the general shareholders’ meeting, vote by mail or via electronic means using forms, the contents of which shall be specified
in the convening notice and which will be made available to the shareholders.
The form for remote voting shall contain at least
the following information: (i) the identity of the shareholder, (ii) the domicile or registered office of the shareholder, (iii) the number
of shares or votes with which the shareholder is participating in the vote, (iv) the form of the shares held by the shareholder, (v) the
agenda of the general shareholders’ meeting and the proposed resolutions, (vi) the term within which the company must receive the form
for remote voting, and (vii) the positive or negative vote or the abstention relating to each proposed resolution. Forms that do not indicate
a positive or negative vote, or an abstention, are void. The form must bear the shareholder’s signature (which may be a digital signature
to the extent permitted as evidence by applicable law).
In accordance with applicable law, the dated and
signed form for votes by distance must be sent by letter, fax, email or any other means mentioned to the extent permitted as written evidence
by applicable law to the company’s registered office or to the place indicated in the notice and must reach the company at the latest
on the third business day prior to the general shareholders’ meeting concerned. In accordance with applicable law, the board of directors
may opt that votes can be cast electronically on, or until the day of, the relevant general shareholders’ meeting.
Free English translation – for information purposes only
The board of directors may arrange for remote
voting to take place electronically via one or more websites. It shall establish the practical procedures for such electronic voting,
ensuring that the system used allows for the inclusion of the information referred to in the second paragraph of this article and control
of compliance with the prescribed time limits
Article 40: Minutes
The minutes of the general shareholders’ meetings
are signed by the members of the bureau and by the shareholders who so request.
Copies and excerpts of the minutes of the general
shareholders’ meeting are signed by two directors acting jointly, by the chairman of the board of directors or by any person to whom powers
of the day-to-day management have been delegated.
TITLE XI: CLOSING OF THE FISCAL YEAR –
FINANCIAL STATEMENTS – APPLICATION OF PROFITS - DIVIDENDS
Article 41: Fiscal year – Financial statements
The company’s fiscal year starts on January 1
and ends on December 31 of each year.
At the end of each fiscal year the books and documents
are closed and the board of directors draws up the inventory, as well as the financial statements, in accordance with the applicable legal
provisions.
Article 42: Application of the profits
The positive balance on the profit and loss account
represents the profit of the company to be allocated.
At least five percent of these profits are deducted
to constitute the legal reserve fund until this represents one/tenth of the share capital.
The general shareholders’ meeting decides on the
allocation of the balance by simple majority vote upon the proposal by the board of directors.
Article 43: Payment of dividends - Payment
of interim dividends
The board of directors determines the time and
the manner in which dividends will be paid.
The payment of the dividend must occur before
the end of the fiscal year in which the dividend has been declared.
The board of directors is granted the power to
pay an interim dividend on the result of the current fiscal year.
TITLE XII: WINDING-UP - LIQUIDATION
Article 44: Winding-up
The voluntary winding-up of the company may only
be decided by an extraordinary general shareholders’ meeting and with due observance of the applicable legal provisions.
After being wound up, the company will continue
to exist in law as an entity in law for the purpose of its liquidation until the liquidation is completed.
Article 45: Appointment of liquidators
In accordance with applicable law, the liquidators
are appointed by the general shareholders’’ meeting.
If no liquidators are appointed, the directors
in office at the time of the winding-up shall, with respect to third parties, be considered as liquidators as of right without, however,
having the powers that the law and these articles of association grant with respect to liquidation transactions to the liquidators appointed
in these articles of association, by the general meeting or by the court.
If an entity in law is appointed liquidator, the
natural person representing the liquidator in the liquidation must be appointed in the resolution appointing the liquidator. Any amendment
to this appointment is to be made public in the annexes to the Belgian Official Gazette.
Article 46: Powers of the liquidators
The liquidators are authorised to carry out all
transactions as permitted by applicable law, without the requirement of a prior authorisation by the general shareholders’ meeting, unless
the general shareholders’ meeting decides otherwise by a simple majority vote.
Article 47: Method of liquidation
In accordance with applicable law, after the payment
of all debts, charges and expenses of the liquidation or after the consignment of the sums necessary for that purpose, the liquidators
distribute the net assets in cash or in securities to the shareholders in proportion of the shares that they own.
Free English translation – for information purposes only
Article 48: Special provisions s for companies
in liquidation
Any change of the name of a company in liquidation
is prohibited.
All documents issued by a dissolved company must
mention the fact that it is in liquidation.
A resolution to move the registered office of
a company in liquidation cannot be carried out without being approved by the enterprise court in the jurisdiction of which the company
has its registered office. The approval is requested by the liquidator by means of a writ of request. A transcript of the decision regarding
the approval by the court needs to be attached to the deed that is filed in connection with the move of the registered office.
TITLE XIII: GENERAL PROVISIONS
Article 49: Election of domicile
Any director and any person delegated to the day-to-day
management may elect domicile at the company’s registered office, for all matters affecting the performance of his or her duties. The
directors and liquidators who are domiciled abroad, are deemed to elect domicile for the entire duration of their mandate at the registered
office of the company, where all summons and notifications concerning the business of the company and the responsibility for their management
may be served on them.
Article 50: Governing law
All matters not expressly determined in these
articles of association, or to the legal provisions from which is not validly derogated in these articles of association are subject to,
the provisions of the Belgian Companies and Associations Code and other provisions of Belgian law.
Article 51: Certain defined terms
Unless the context requires otherwise or unless
otherwise defined in these articles of association, for the purposes of these articles of association, (a) “personnel” shall
have the meaning defined in Article 1:27 of the Belgian Companies and Associations Code, and (b) “business day” shall have the
meaning defined in Article 1:32 of the Belgian Companies and Associations Code.
22
Exhibit 5.1
 |
Baker McKenzie BV/SL
Bolwerklaan 21 Avenue du Boulevard - box 1
1210 Brussels
Belgium
Tel: +32 2 639 36 11
Fax: +32 2 639 36 99
www.bakermckenzie.com |
| Asia Pacific |
September 27, 2024
MDxHealth SA
CAP Business Center
Zone Industrielle des Hauts-Sarts
Rue d’Abhooz 31
4040 Herstal
Belgium
Dear all,
RE: MDXHEALTH SA – OFFERING OF SHARES
1. Introduction
(a) We have acted as external Belgian law counsel to MDxHealth SA of CAP Business Center, Zone Industrielle des Hauts-Sarts, Rue d’Abhooz 31, 4040 Herstal, Belgium, registered under company number 0479.292.440 RLP Liège (division Liège) (the “Company”), on certain Belgian law aspects relating to the Registration Statement (as defined below) filed with the United States Securities and Exchange Commission (the “SEC”) under the United States Securities Act of 1933, as amended (the “Securities Act”), in respect of the Company’s offering of new ordinary shares without nominal value of the Company (the “New Shares”), with admission to trading and listing of the New Shares on the Nasdaq Capital Market, covered by the Registration Statement (as defined below) to which this opinion is an exhibit (the “Offering”).
(b) For
the purposes of this opinion letter (the “Opinion Letter”):
(i) we have reviewed only the documents referred to in paragraph 3 (Documents Reviewed); and
(ii) we have completed only the searches and enquiries referred
to in paragraph 4 (Searches and Enquiries);
and we have not examined any other
documents relating to or affecting, and have not made any other searches or enquiries concerning, any party to the Agreements (as defined
below).
|
| Bangkok |
| Beijing |
| Brisbane |
| Hanoi |
| Ho Chi Minh City |
| Hong Kong |
| Jakarta |
| Kuala Lumpur* |
| Manila* |
| Melbourne |
| Seoul |
| Shanghai |
| Singapore |
| Sydney |
| Taipei |
| Tokyo |
| Yangon |
| |
| Europe, Middle East |
| & Africa |
| Abu Dhabi |
| Almaty |
| Amsterdam |
| Antwerp |
| Bahrain |
| Barcelona |
| Berlin |
| Brussels |
| Budapest |
| Cairo |
| Casablanca |
| Doha |
| Dubai |
| Dusseldorf |
| Frankfurt/Main |
| Geneva |
| Istanbul |
| Jeddah* |
| Johannesburg |
| Kyiv |
| London |
| Luxembourg |
| Madrid |
| Milan |
| Munich |
| Paris |
| Prague |
| Riyadh* |
| Rome |
| Stockholm |
| Vienna |
| Warsaw |
| Zurich |
| |
| The Americas |
| Bogota |
| Brasilia** |
| Buenos Aires |
| Caracas |
| Chicago |
| Dallas |
| Guadalajara |
| Houston |
| Juarez |
| Lima |
| Los Angeles |
| Mexico City |
| Miami |
| Monterrey |
| New York |
| Palo Alto |
| Porto Alegre** |
| Rio de Janeiro** |
| San Francisco |
| Santiago |
| Sao Paulo** |
Tijuana
Toronto
Washington,
DC
*
Associated Firm
**
In cooperation with Trench, Rossi e Watanabe Advogados |
Partners
Alain
HUYGHE1,15*
Koen
VANHAERENTS 1*
Jean-François
VANDENBERGHE1,15*
Roel
MEERS1,15*
Luc
MEEUS, 1,5,15*
Fiona
CARLIN1,3,15 *
Kurt
HAEGEMAN1,15*
Dominique
MAES1,15*
Michael
VAN ACKER1,15*
Géry
BOMBEKE1,15*
Elisabeth
DEHARENG, 1,15*
Geert
BOVY1,15*
Gavin
BUSHELL1,4,15*
Gregory
LEBRUN1,15
|
Arnoud
WILLEMS1,15
Davinia
MARTENS1,15
Paul
JOHNSON1,4,15
Julie
PERMEKE1
Joren
JANSSEUNE1,15
Senior
Counsels & Counsels
Jozef
SLOOTMANS1,15
Pascal
MALLIEN2,15
Philippe
LION1,15
Annick
VAN HOOREBEKE1
Olivier
VAN BAELEN1, 15
Robby
HOUBEN2
Els
JANSSENS1, 15 |
Kim
STAS1
Bram
HOORELBEKE 1
Veerle
LERUT1
Bregt
NATENS1,15
Benjamin
PIRLET1,15
Sebastian
TYTGAT1,15
Nastassja
WALSCHOT1,15
Joost
VYNCKIER1,15
William-James
KETTLEWELL1,15
Associates
Mario
DEKETELAERE2
Arne
NAERT1,15
Olivier
VAN DEN BROEKE2,15
Kristoff
COX1
Michel
TANS1,15
|
Julie
VAN THIENEN1,15
Pieter-Jan
DENYS1,15
Harold
VANDEN BERGHE1
Lien
WILLEMS1,15
Ellen
DEVLOO1,15
Amaranta
RUTZ1
Younes
SEBBARH1,15
Eva
CLAEYS1
Stéphanie
DE POTTER1
Anne-Sophie
CORNE1,15
Inès
SILVESTRINI1,15
Arnaud
FLAMAND1,15
Marie
KRUG1,15
Clémence
ROUMA1
Werner
VANDENBRUWAENE1
Eline
KEGELS1
|
Associated
with the Brussels Bar
E-List
Nina
NIEJAHR7
Chiara
CONTE13
Lisa
WEINERT7,15
Victor
SAINT-CAST11
Sara
DERHAB 8
Marcela
Junqueira C. PIROLA 12, 15
Konstantinos
SKALTSAS10
B-List
Tom
JENKINS 4,14, 15
Roma
MCCOOL 4
|
| |
1 – Advocaat
/ Avocat, Member of the Brussels Bar | 2 – Advocaat, Member of the Antwerp Bar | 3 – Barrister, Inn
of Court, Northern Ireland | 4 – Solicitor (England and Wales) | 5 – Attorney, Member of the New York Bar
| 6 – Rechtsanwalt, Member of the Frankfurt/Main Bar | 7 – Rechtsanwalt, Member of the Düsseldorf
Bar | 8 – Avocat, Member of the Paris Bar | 9 – Rechtsanwalt, Member of the Cologne Bar | 10 – Δικηγόρος
(Dikigoros), Member of the Athens Bar | 11 – Avocat, Member of the Lille Bar | 12 – Advogado, Member
of the Portuguese Bar | 13 – Avvocato, Member of the Milan Bar | 14 – Solicitor of the High Court of Hong
Kong | 15 – BV/SRL | * – Shareholder/Director of Baker McKenzie BV/SRL |
| |
Baker
McKenzie BV/SRL. Vennootschap van advocaten/Société d’avocats. BTW/TVA: BE 0426.100.511
RPR Brussel/RPM Bruxelles. |
| (c) | Nothing in this Opinion Letter should be construed as implying that we are familiar with, or have made
independent review or investigation of factual matters such as, the affairs of any of the parties to the Agreements, and this Opinion
Letter is based solely on the investigations and subject to the limits stated in this Opinion Letter. We do not assume any responsibility
for advising you of the subsequent discovery of information not previously known to us with respect to any matters described in this Opinion
Letter. |
| (d) | The opinion in this Opinion Letter is limited to the matters stated herein and does not extend to, and
is not to be read as extending by implication to, any other matter in connection with the Offering, the Agreements, the transactions to
which the Agreements relate or otherwise. |
| (a) | This Opinion Letter is limited to matters of Belgian law as in force, and as construed in published Belgian
case law, as at the date of this Opinion Letter. Consequently: |
| (i) | we have made no investigation of foreign law, and do not express or imply any opinion on foreign law (including,
but not limited to, the laws of the United States of America) or on European Union law as it affects any jurisdiction other than Belgium; |
| (ii) | we do not assume any responsibility for advising you of any changes in law or otherwise after the date
of this Opinion Letter with respect to any matters described in this Opinion Letter; and |
| (iii) | we express no opinion on matters of taxation, matters of antitrust and competition, matters of fact or
matters of accounting. |
| (b) | As Belgian law counsel we are not qualified or able to assess the true meaning and purport of the terms
or any agreements, documents and legal acts (rechtshandelingen / actes juridiques) subject or expressed to be subject to any applicable
law other than Belgian law, including, but not limited to, the Registration Statement, the Prospectus Supplement (as defined below) and
the Agreements (and the obligations of the parties thereto), and we have made no investigation of such meaning and purport. Our review
of agreements, documents or legal acts (rechtshandelingen / actes juridiques) subject or expressed to be subject to any law other
than Belgian law, including, but not limited to, the Registration Statement, the Prospectus Supplement and the Agreements, has therefore
been limited to the terms of such documents as they appear to us on their face. |
| (c) | We do not admit we are “experts” within the meaning of the Securities Act, or the rules
and regulations of the SEC promulgated thereunder, with respect to any part of the Registration Statement or the Prospectus Supplement. |
For the purposes of this Opinion Letter
we have examined the following documents:
| (a) | an electronic version of a signed copy of the underwriting agreement (the “Underwriting Agreement”)
relating to the Offering, entered into on September 25, 2024, between the Company, as issuer, and TD Securities (USA) LLC and William
Blair & Company, L.L.C., for themselves and as representatives of the underwriters named in the Underwriting Agreement (together,
the “Underwriters”); |
| (b) | an electronic version of a signed copy of the securities purchase agreement (the “Securities Purchase
Agreement”, and together with the Underwriting Agreement, the “Agreements”) relating to the Offering, entered
into on September 25, 2024, between the Company and Genomic Health, Inc.; |
| (c) | an electronic copy of the Company’s registration statement on Form F-3 (File No. 333-268885), as filed
with the SEC on December 19, 2022 (the registration statement at the time it became effective, including all information deemed to be
a part thereof, including the amendments, exhibits and schedules thereto, at the time such registration statement became effective, is
herein referred to as the “Registration Statement”); |
| (d) | an electronic copy of the Company’s prospectus supplement reflecting the final terms of the Offering,
as filed by the Company with the SEC, pursuant to Rule 424(b) under the U.S. Securities Act of 1933, as amended from time to time, and
supplementing the base prospectus included in the Registration Statement (the “Prospectus Supplement”); |
| (e) | a copy of the amended and restated articles of association of the Company as filed in the legal entity
file (dossier van de rechtspersoon/dossier de la personne morale) on July 9, 2024, electronically certified by the Royal Federation
of Belgian Notaries (Koninklijke Federatie van het Belgisch Notariaat/Fédération Royale du Notariat Belge) on September
26, 2024; |
| (f) | an electronic version of a signed copy of: |
| (i) | the unanimous written resolutions of the directors of the Company adopted in accordance with article 7:95
of the Belgian Companies and Associations Code and dated September 22, 2024, authorising, approving and ratifying, as relevant, amongst
other things, (A) the then current draft of the Prospectus Supplement and certain other materials in relation to the Offering, (B) the
then current draft of the report of the board of directors in accordance with article 7:198 juncto articles 7:179, 7:191, 7:193
and, insofar as needed and applicable, 7:197 of the Belgian Companies and Associations Code, dated March 23, 2019, as amended from time
to time (the “Belgian Companies and Associations Code”), (C) the then current draft of the Agreements, the transactions
contemplated therein, and certain other arrangements to which the Company is to be a party in relation to the Offering, and (D) the
granting of special powers; and |
| (ii) | the minutes of the meeting of the board of directors of the Company held before notary public on September
24, 2024, authorising, and approving, as relevant, amongst other things, the issue of New Shares within the framework of the Offering,
and the dis-application of the statutory preferential subscription right of the existing shareholders and, as far as needed, existing
holders of subscription rights of the Company (including to the benefit of the Underwriters) and, insofar as needed and applicable, the
contribution in kind within the framework of the Company’s authorised capital in accordance with article 7:198 juncto articles
7:179, 7:191, 7:193 and, insofar as needed and applicable, 7:197 of the Belgian Companies and Associations Code; |
| (g) | an electronic version of a signed copy of the report of the board of directors of the Company in accordance
with article 7:198 juncto articles 7:179, 7:191, 7:193 and, insofar as needed and applicable, 7:197 of the Belgian Companies and
Associations Code, approved by the meeting of the board of directors referred to in paragraph 3(f)(ii); |
| (h) | an electronic version of a signed copy of the report of the statutory auditor of the Company prepared,
insofar as needed and applicable, in accordance with article 7:198 juncto articles 7:179 and 7:197 of the Belgian Companies and
Associations Code, attached to the report of the board of directors referred to in paragraph 3(g); |
| (i) | an electronic version of a signed copy of the report of the statutory auditor of the Company prepared
in accordance with article 7:198 juncto articles 7:179, 7:191 and 7:193 of the Belgian Companies and Associations Code in relation
to the report of the board of directors referred to in paragraph 3(g); |
| (j) | an electronic version of a signed copy of the decisions by the “Placement Committee”, which
was appointed by the board of directors of the Company on September 22, 2024 and September 24, 2024, effective as per September 25, 2024; |
| (k) | an electronic version of a signed copy of the certificate issued by KBC Bank SA/NV on September 27, 2024
in accordance with article 7:198 juncto article 7:195 of the Belgian Companies and Associations Code certifying that USD 40,000,000.00
was available on a blocked account in the name of the Company; and |
| (l) | an electronic version of a signed copy of the notarial deed, dated September 27, 2024, confirming
the effective realisation of the issuance of the New Shares. |
We have carried out the following
searches and enquiries using the registration number of the Company with the Crossroads Bank for Enterprises as it appears in this Opinion
Letter:
| (a) | we obtained a “full extract of the details of a registered entity (legal person)” issued
by the Crossroads Bank of Enterprises in relation to the Company and referring to the circumstances in existence on September 26, 2024
(the “CBE Excerpt”); |
| (b) | on September 26, 2024 we carried out an on-line search in the Central Insolvency Register available on
www.regsol.be (the “Regsol Search”); |
| (c) | on September 26, 2024 we carried out an on-line search and review of the Annexes to the Belgian Official
Gazette relating to the Company which shows any notices published up to September 25, 2024 (the “Publications”); and |
| (d) | on September 26, 2024, we conducted an online search in the database of articles of association maintained
by the Royal Federation of Belgian Notaries (Koninklijke Federatie van het Belgisch Notariaat/Fédération Royale du Notariat
Belge) available on https://statuten.notaris.be/costa_v1/enterprises/search (the “Fednot Database”) in relation to
the Company. |
For the purposes of this Opinion Letter,
we have assumed (without making any investigation) that:
| (a) | all copy documents reviewed by us conform to the originals, all originals are genuine, complete and up-to-date; |
| (b) | all signatures, stamps and seals on any documents submitted to us are genuine; |
| (c) | the executed documents submitted to us have been signed by the persons whose names are indicated thereon
as being the names of the signatories and we have assumed the legal capacity (bekwaamheid/capacité) of the natural persons
executing such documents; |
| (d) | in the case of draft versions or (or draft updates to) any of the documents reviewed by us, the final
and executed versions of such documents are identical in all aspects to such drafts and are duly executed; |
| (e) | the Registration Statement and Prospectus Supplement have or will become effective in the form referred
to in this Opinion Letter; |
| (f) | the Publications give a true, complete and not misleading summary of the matters reflected in the documents
on which such excerpts are based and such matters have not been revoked or amended by subsequent decisions by the Company (or its board
of directors, general shareholders’ meeting, or any of its other competent bodies or representatives) which were not published in the
Annexes to the Belgian Official Gazette; |
| (g) | there have been, and there will be, no amendments or supplements to the documents referred to under paragraph
3 (Documents Reviewed) in the form as examined by us, such documents (or the matters documented therein and thereby) have not been or
will not be terminated, rescinded, declared null and void, or revoked, and there are no and will not be dealings, agreements or arrangements,
actions or events between, by or involving any of the parties to such documents which supersede any of such documents (or the matters
documented therein and thereby), or which otherwise affect the opinion given in this Opinion Letter; |
| (h) | the seat (zetel/siège) of the Company is located in Belgium since its incorporation (oprichting/constitution),
and the Company’s sole operational headquarters (exploitatiezetel/siège d’exploitation) are located at the place of its
registered office; |
| (i) | the articles of association of the Company have not been amended since the restatement referred to in
paragraph 3(e), and accurately restate the original articles of association and the subsequent amendments thereto; |
| (j) | each of the minutes and unanimous written resolutions referred to in paragraph 3(f) accurately record
resolutions that were duly passed, as the case may be, at a properly convened and quorate meeting of duly appointed directors of the Company,
conducted in accordance with its articles of association and Belgian law, (ii) do not reflect any untruthful statements, and (iii) have
not been amended, revoked, varied or declared null and void, and remain in full force and effect; |
| (k) | the directors of the Company who attended and voted at the board meeting and signed the unanimous written
resolutions referred to in paragraph 3(f) have complied with the applicable provisions of article 7:96 of the Belgian Companies and Associations
Code and article 1.8, §6 of the Belgian Civil Code, dealing with conflicts of interest of directors (as the case may be); |
| (l) | each of the resolutions of the general shareholders’ meetings of the Company referred to, set out or implied
in the documents referred to under paragraph 3 above (i) accurately record resolutions that were duly passed at a properly convened and
quorate meeting of genuine shareholders of the Company, conducted in accordance with its articles of association and Belgian law and on
the basis of reports of the board of directors (as applicable) duly approved by duly appointed directors, (ii) do not reflect any untruthful
statements, and (iii) have not been amended, revoked, varied or declared null and void, and remain in full force and effect; |
| (m) | the directors of the Company have satisfied themselves that the Offering and Agreements were entered into
for the purpose of carrying out the business of the Company as set out in its articles of association and that entering into the Offering
and the Agreements is of benefit to the Company, and their conclusions in this respect are not unreasonable; |
| (n) | with respect to each party to the respective Agreements (other than the Company): |
| (i) | it has been duly incorporated and is validly existing as a legal entity under all laws applicable to that
party; |
| (ii) | it has all requisite power and capacity (corporate and otherwise) and, to the extent relevant, has all
requisite corporate benefit, to enter into the Agreement(s) to which it is a party, and to perform its obligations thereunder; |
| (iii) | no other action by, and no notice to or filing with, any governmental, administrative or other authority
or court on behalf of or by such party is required in order to enable it to validly enter into and, as relevant, sign and perform under
the Agreements to which it is a party; |
| (iv) | it has duly authorised and signed the Agreement(s) to which it is a party; |
| (v) | each of the Agreements constitutes a valid and binding agreement of said party, enforceable against it
in accordance with the terms of such Agreements; and |
| (vi) | if it at any relevant time is carrying on, or purporting to carry on, banking services, investment services
or other regulated activity in Belgium, it is at all relevant times an authorised person or an exempt person under the relevant laws of
Belgium, and in compliance with all applicable rules and regulations made thereunder; |
| (o) | none of the parties to the Agreements is or will be subject to any contractual restrictions, restrictions
imposed by any court, arbitral panel or governmental, administrative or other authority that do not have general (erga omnes) application
or similar restrictions binding upon it which would (i) restrict its ability to enter into or perform its obligations under the Offering
or the Agreements (except, in relation to the Company, as may be set out in its articles of association), or (ii) have any implication
on the opinion given in this Opinion Letter; |
| (p) | each party to the Agreements has complied, and will continue to comply, with the requirements of good
faith (goede trouw/bonne foi) and public policy (openbare orde/ordre public), and there has been no mistake of fact (dwaling/erreur),
fraud (bedrog/dol) or duress (geweld/violence) or abuse of circumstances (misbruik van omstandigheden/abus de circonstances)
in relation to the Agreements; |
| (q) | none of the parties to the Agreements is or will be seeking to achieve any purpose not apparent from the
respective Agreements which might render any of the respective Agreements illegal or void, and the Agreements have been entered into for
bona fide commercial reasons and on arms’ length terms by each of the parties thereto; |
| (r) | the obligations of all parties under the respective Agreements are binding and enforceable upon them under
any applicable law (other than Belgian law), and the exercise and performance by any party to the respective Agreements of its rights
and obligations thereunder is lawful in any place of exercise or performance (other than Belgium); |
| (s) | any factual circumstances, statements and matters set out in or implied by any of the documents referred
to in paragraph 3 (Documents Reviewed) are true, accurate and complete; |
| (t) | there are no provisions of the laws of any jurisdiction outside Belgium which would have any implication
for the opinion given in this Opinion Letter and, insofar as the laws of any jurisdiction outside Belgium may be relevant, such laws have
been or will be complied with; |
| (u) | for the purpose of the opinion referred to in paragraph 6 in so far as it relates to the actual issue
of the New Shares, (i) the subscription price for the New Shares has been duly paid up and contributed in full, (ii) the New Shares have
been duly subscribed for, (iii) the issue of the New Shares and the corresponding capital increase have been duly recorded in the notarial
deed referred to in paragraph 3(l), (iv) such notarial deed and an excerpt therefrom were or will be duly filed and registered as required
by Belgian law; and (v) in relation to the New Shares to be issued to cover over-allotments, if any, these New Shares will be delivered
by the Underwriters in order to cover short positions following over-allotments made upon allocation of New Shares under the Offering; |
| (v) | (i) the New Shares have been offered and placed, and will be allocated, and will be traded and listed
in each case in the manner and form as described in the Registration Statement, Prospectus Supplement and the Agreements, (ii) without
prejudice to the confirmation of any allocations upon pricing and closing of the books, in the manner as described in the Agreements,
to the investors that subscribed for the New Shares in the Offering, no party was guaranteed by or on behalf of the Company any allocation
of New Shares, with the potential exception of the Underwriters, and (iii) no public offering or placement in respect of the New Shares
has taken and/or will take place, and no admission to listing and/or trading on a regulated market, multilateral trading facility or other
securities market will take place, in Belgium, or elsewhere outside of the United States, in accordance with or as contemplated by Regulation
(EU) 2017/1129 of the European Parliament and of the Council of June 14, 2017 on the prospectus to be published when securities are offered
to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC, as amended from time to time (the “Prospectus
Regulation”), the Belgian act of July 11, 2018 on the offering of investment instruments to the public and the admission of investment
instruments to the trading on a regulated market, as amended from time to time, or any other relevant rules or regulations, or otherwise; |
| (w) | the undertakings and agreements contained in the Agreements are and will be duly performed and complied
with by all parties thereto; |
| (x) | each of the Underwriters is duly authorised to provide all of the intermediation, brokerage, investment
and other services as contemplated by the Underwriting Agreement, and has complied and will comply with the relevant rules and regulations
in relation to such intermediation, brokerage, investment and other services; and |
| (y) | the transactions contemplated by the Agreements do not or will not require the publication of a prospectus
in accordance with the Prospectus Regulation. |
Based upon and subject to the assumptions,
qualifications and limitations set out in this Opinion Letter, and subject to any matters, documents or events not disclosed to us, we
express the following opinion insofar as Belgian law is concerned:
The New Shares, when duly authorized
and sold, issued and fully paid as contemplated in the Prospectus Supplement, the Agreements, the board resolutions recorded in the board
minutes and unanimous written resolutions referred to in paragraph 3(f) and the notarial deed referred to in paragraph 3(l), will be validly
issued, fully paid up and non-assessable (meaning that a holder of the relevant New Shares will not by reason of merely being such a holder,
be subject to assessment or calls by the Company or its creditors for further payment on such securities).
The opinion expressed in this Opinion
Letter is subject to the following qualifications:
| 7.1 | Reliance on searches and enquiries |
The searches and enquiries referred
to in paragraph 4 (Searches and Enquiries) may not be up-to-date and do not constitute conclusive evidence of the matters stated therein.
| 7.2 | Construction of certain terms |
| (a) | In this Opinion Letter Belgian legal concepts which are expressed in English are to be construed in accordance
with the Belgian legal concepts to which they refer. |
| (b) | When used in paragraph 6 (Opinion), the term “validly” is a reference to the legal character
of the relevant obligation. It is not to be construed as a prediction of the outcome of litigation. |
We do not express an opinion regarding:
| (a) | (i) any laws of any jurisdiction (including, but not limited to, Belgium and the European Union) imposing
economic or trade sanctions or similar restrictive measures or regarding anti-terrorism, anti-money laundering, anti-bribery or anti-tax
evasion measures, (ii) any regulations enacted, administered, imposed or enforced by any relevant sanctions authority or (iii) the extent,
scope, legality or enforceability of any person’s obligation to comply with any of such laws or regulations; |
| (b) | the admission to trading and listing of the New Shares on any regulated market or other trading facility
for securities; and |
| (c) | the accuracy or completeness of any statements or warranties of fact set out in the documents referred
to in paragraph 3 (Documents Reviewed) (except for the representations and warranties as to which we are expressing an opinion), which
statements and warranties we have not independently verified. |
| 8. | Disclosure, Reliance and Liability |
| (a) | This Opinion Letter is issued by Baker McKenzie, a Belgian limited liability company (BV/SRL),
and not by or on behalf of Baker & McKenzie International (a Swiss Verein) or any other member firm or any associated firm
thereof. In this Opinion Letter the expressions “we”, “us”, “our” and like expressions should be construed
accordingly. |
| (b) | This Opinion Letter may only be relied upon by the Company in connection with the Registration Statement,
and by the subscribers to which the New Shares have been allocated as part of the Offering. This Opinion Letter is strictly limited to
the matters stated in it and may not be read as extending by implication to any matters not specifically referred to in it. Nothing in
this Opinion Letter should be taken as expressing an opinion in respect of any representations or warranties, or other information, contained
in any document. |
| (c) | We consent to the filing of this Opinion Letter as an exhibit to the Registration Statement and to the
reference to us under the heading “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not concede
that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations
of the SEC thereunder. |
| (d) | This Opinion Letter may only be relied upon, and be disclosed, on condition that it is construed in accordance
with Belgian law and that any dispute arising out of or in connection with it is brought before a Belgian court. |
* * *
| |
Yours faithfully, |
| |
|
| |
Baker
McKenzie BV/SRL |
| |
|
| |
/s/ Michael Van Acker |
|
/s/ Roel Meers |
| |
Michael Van Acker
Partner
Michael.VanAcker@bakermckenzie.com |
|
Roel Meers
Partner
Roel.Meers@bakermckenzie.com |
11
Exhibit 99.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”)
is dated as of September 25, 2024, between MDxHealth SA, a limited liability company (naamloze vennootschap/société anonyme)
organized under the laws of Belgium (the “Company”), and Genomic Health, Inc., a Delaware corporation (the “Purchaser”).
WHEREAS, reference is made to the capital increase
within the framework of the authorized capital with issuance of new Ordinary Shares by the Company that was approved by the meeting of
the board of directors of the Company held on September 24, 2024 in front of a notary public. The new Ordinary Shares were offered by
means of a public offering to retail and institutional investors in the United States (the “Offering”). The Offering
was launched on September 25, 2024. On September 25, 2024, the Company raised through the Offering an amount of $40,000,000 in gross proceeds
through the issuance of 20,000,000 new Ordinary Shares to be issued at an issue price of $2.00 per new Ordinary Share. In the context
of the Offering, the Purchaser placed a subscription order with the Underwriters and was allocated with 1,500,000 new Ordinary Shares
to be subscribed for by the Purchaser on the Closing Date at the Per Share Purchase Price for the Subscription Amount (such 1,500,000
new Ordinary shares, the “Shares”). For the sake of completeness, the final allocation of new Ordinary Shares to be issued
in the context of the Offering was made by the Company’s board of directors (upon the joint allocation proposal of the Underwriters)
on the basis of customary objective and pre-identified criteria. The Purchaser did not benefit from any guaranteed allocation or other
similar undertaking from the Company or the Underwriters.
NOW, THEREFORE, IN CONSIDERATION of the mutual
covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged,
the Company and the Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms
defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section
1.1:
“Affiliate” means any Person
that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person
as such terms are used in and construed under Rule 405 under the Securities Act.
“Business Day” means any day
except any Saturday, any Sunday, any day which is a legal holiday in Belgium and/or the United States or any day on which banking institutions
in Brussels (Belgium) or the State of New York are authorized or required by law or other governmental action to remain closed.
“Closing Date” means the same
date as the First Closing Date.
“Commission” means the United
States Securities and Exchange Commission.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“First Closing Date” has the
meaning given to such term in the Underwriting Agreement.
“Material Adverse Effect” means
any material adverse change or effect, or any development involving a prospective material adverse change or effect, in or affecting (i)
the business, properties, general affairs, management, financial position, prospects, stockholders’ equity or results of operations
of the Company, except as set forth or contemplated in the Pricing Prospectus, or (ii) the ability of the Company to perform its obligations
under this Agreement or the Underwriting Agreement, including the issuance and sale of the Shares, or to consummate the transactions contemplated
in the Pricing Prospectus and the Prospectus.
“Ordinary Shares” mean the
ordinary shares of the Company, with no nominal value per share.
“Per Share Purchase Price”
equals $2.00.
“Person” means an individual
or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock
company, government (or an agency or subdivision thereof) or other entity of any kind.
“Prospectus” has the meaning
given to such term in the Underwriting Agreement.
“Pricing Prospectus” has the
meaning given to such term in the Underwriting Agreement.
“Registration Statement” has
the meaning given to such term in the Underwriting Agreement.
“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securities Act” means the
Securities Act of 1933, as amended.
“Subscription Amount” means,
as to the Purchaser, the aggregate amount to be paid for Shares purchased hereunder as specified on the signature page of this Agreement
and next to the heading “Subscription Amount,” in United States dollars and in immediately available funds.
“Trading Day” means (i) a day
on which the principal Trading Market is open for trading or (ii) if the Ordinary Shares are not quoted on any Trading Market, a day on
which the Ordinary Shares are quoted in the over-the-counter market as reported in the “pink sheets” by OTC Markets Group
Inc. (or any similar organization or agency succeeding to its functions of reporting prices); provided, that in the event that the Ordinary
Shares are not listed or quoted as set forth in (i) or (ii) hereof, then Trading Day shall mean a Business Day.
“Trading Market” means the
Nasdaq Capital Market.
“Transfer Agent” means Computershare
Trust Company, N.A., the Company’s transfer agent for the Ordinary Shares.
“Underwriter” means each of
TD Securities (USA) LLC and William Blair & Company, L.L.C.
“Underwriting Agreement” means
that certain underwriting agreement by and between the Company and the Underwriters, being executed concurrently herewith.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
(a) Upon the satisfaction or waiver of the conditions
set forth in Sections 2.1, 2.2, and 2.3, the closing of the purchase and sale of the Shares (the “Closing”) shall take
place on the Closing Date.
(b) The Purchaser shall pay the Subscription Amount,
as set forth on the Purchaser’s signature page hereto, in immediately available funds to a blocked account designated by the Company
(the “Blocked Account”). Such payment shall be initiated by the Purchaser by urgent / “same-day” “SWIFT”
wire not later than 4:00 p.m., New York City time, on the Business Day immediately preceding the Closing Date. Subject to reception of
the Subscription Amount on the Blocked Account, the effective realization of the Company’s capital increase and the issuance of
the Shares will be acknowledged and recorded in a notarial deed in accordance with the Belgian Companies and Associations Code on the
Closing Date, and the Purchaser shall subscribe on the Closing Date for the number of Shares set forth on the Purchaser’s signature
page hereto. In order to proceed with the issuance by the Company of, and subscription by the Purchaser for, the numbers of Shares set
forth on the Purchaser’s signature page hereto, no later than one Business Day prior to the Closing Date, the Purchaser will deliver
to the Company a fully completed and duly executed subscription form, substantially in the form attached hereto as Schedule A (such
completed and executed subscription form, the “Subscription Form”).
(c) On the Closing Date, subject to the issuance
of the Shares and the payment of the Subscription Amount thereof, and subject to the deliverables in Section 2.2(b), the Company will
deliver the duly executed irrevocable transfer instructions referred to in Section 2.2(a)(ii) to the Transfer Agent. instructions). In
the event that the conditions set forth in Section 2.1, 2.2 and 2.3 are not met or waived or this Agreement is terminated pursuant to
Section 4.1, the Company shall refund all proceeds wired to the Blocked Account as soon as reasonably possible.
2.2 Deliveries.
(a) The Company shall deliver or cause to be delivered
to the Purchaser the following:
(i) no later than one Business Day prior to the
Closing Date, the Company’s wire instructions to the Blocked Account for payment of the Subscription Amount;
(ii) on or prior to the Closing Date, a copy of
the irrevocable transfer instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository
Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) Shares equal to the Purchaser’s Subscription
Amount divided by the Per Share Purchase Price, registered in the name of the Purchaser; and
(iii) on or prior to the Closing Date, the Prospectus
and Pricing Prospectus (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) The Purchaser shall deliver or cause to be
delivered to the Company the following:
(i) no later than one Business Day prior to the
Closing Date, the Purchaser’s DWAC delivery instructions;
(ii) no later than 4:00 p.m., New York City time,
on the Business Day immediately preceding the Closing Date, the Subscription Amount as set forth on the Purchaser’s signature page
hereto, in United States dollars and in immediately available funds, by urgent / “same-day” “SWIFT” wire transfer
to the Blocked Account; and
(iii) no later than one Business Day prior to
the Closing Date, the fully completed and duly executed Subscription Form.
(c) Notwithstanding, Section 2.2(a)(ii) and Section
2.2(b)(i) above, the Purchaser may elect to have the Shares issued and delivered directly in registered form in the name of the Purchaser
by delivering to the Company no later than one Business Day prior to the Closing Date (i) written notice of such request and (ii) such
other information and documentation as requested by the Transfer Agent to process the issuance of the Shares to Purchaser. As promptly
as practicable following the Closing Date, the Company shall deliver to the Purchaser a book-entry statement from the Transfer Agent evidencing
the Shares, which shall be free of any restrictive legends.
2.3 Closing Conditions.
(a) The obligations of the Company hereunder in
connection with the Closing are subject to the following conditions being met:
(i) all obligations, covenants and agreements
of the Purchaser required to be performed at or prior to the Closing Date shall have been performed;
(ii) the delivery by the Purchaser of the items
set forth in Section 2.2(b) of this Agreement; and
(iii) the closing of the transactions contemplated
by the Underwriting Agreement, as contemplated by Section 3 thereunder.
(b) The obligations of the Purchaser hereunder
in connection with the Closing are subject to the following conditions being met:
(i) all obligations, covenants and agreements
of the Company required to be performed at or prior to the Closing Date shall have been performed;
(ii) the delivery by the Company of the items
set forth in Section 2.2(a) of this Agreement;
(iii) the closing of the transactions contemplated
by the Underwriting Agreement, as contemplated by Section 3 thereunder;
(iv) no judgment, writ, order, injunction, award
or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental
authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or
preventing the consummation of the transactions contemplated hereby;
(v) except for the consents, approvals, resolutions,
registrations and waivers necessary for the issuance of the Shares to the Purchaser, the Company shall have obtained any and all consents,
permits, approvals, registrations and waivers necessary for the consummation of the other transactions contemplated by this Agreement,
all of which shall be in full force and effect;
(vi) there shall have been no Material Adverse
Effect with respect to the Company since the date hereof; and
(vii) no stop order or suspension of trading shall
have been imposed by Nasdaq, the SEC or any other governmental or regulatory body with respect to public trading in the Ordinary Shares.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company.
The Company hereby makes the following representations and warranties the Purchaser:
(a) Organization and Qualification. The
Company is an entity duly incorporated or otherwise organized, validly existing and in Good Standing under the laws of the jurisdiction
of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on
its business as currently conducted. The Company is not in violation or default of any of the provisions of its articles of association
or other organizational or charter documents. The Company is duly qualified to conduct business and is in Good Standing as a foreign corporation
or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in Good Standing, as the case may be, would not have or reasonably be expected to result
in a Material Adverse Effect. For the purposes of this paragraph, “Good Standing” means that the Company has filed
all documents required under applicable law in its jurisdiction of incorporation.
(b) Agreement. This Agreement has been
duly authorized and executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding
obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application relating to or affecting enforcement
of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief
or other equitable remedies.
(c) Issuance of the Shares; Registration.
The Shares are duly authorized and, when issued, delivered and paid for in accordance with this Agreement, will have been duly and validly
issued, fully paid and nonassessable (meaning that a holder of the Shares will not by reason of merely being such a holder, be subject
to assessment or calls by the Company or its creditors for further payment on such Shares upon voting or transfer or any other claim of
any third party), free and clear of all liens imposed by the Company. The Company has prepared and filed the Registration Statement in
conformity with the requirements of the Securities Act, including the Prospectus, and such amendments and supplements thereto as may have
been required to the date of this Agreement. The Company was at the time of the filing of the Registration Statement eligible to use Form
F-3. The Company is eligible to use Form F-3 under the Securities Act and it meets the transaction requirements as set forth in General
Instruction I.B.1 of Form F-3. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending
the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been issued by the Commission
and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission.
3.2 Representations and Warranties of the Purchaser.
The Purchaser hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of
a specific date therein, in which case they shall be accurate as of such date):
(a) Organization; Authority. The Purchaser
is an entity duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation with full
corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out
its obligations hereunder and thereunder. The execution and delivery of this Agreement and performance by the Purchaser of the transactions
contemplated hereby have been duly authorized by all necessary corporate action on the part of the Purchaser. This Agreement has been
duly executed by the Purchaser, and when delivered by the Purchaser in accordance with the terms hereof, will constitute the valid and
legally binding obligation of the Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement
of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief
or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(b) Understandings or Arrangements. The
Purchaser is acquiring the Shares as principal for its own account. The Purchaser represents that it is making this investment based on
the results of its own due diligence investigation of the Company, and has not relied on any information or advice furnished by or on
behalf of the Underwriters in connection with the transactions contemplated hereby. The Purchaser acknowledges that the Underwriters has
not made, and will not make, any representations and warranties with respect to the Company or the transactions contemplated hereby, and
the Purchaser will not rely on any statements made by or on behalf of the Underwriters, orally or in writing, to the contrary.
The Company acknowledges and agrees that the representations
contained in this Section 3.2 shall not modify, amend or affect the Purchaser’s right to rely on the Company’s representations
and warranties contained in this Agreement.
ARTICLE IV.
MISCELLANEOUS
4.1 Termination. This Agreement may be
terminated by the Purchaser by written notice to the Company, if the Closing has not been consummated on or before October 2, 2024; provided,
however, that the delay in Closing is not due to the Purchaser’s failure to satisfy its closing conditions and no such termination
will affect the right of either party to sue for any breach by the other party.
4.2 Fees and Expenses. Except as expressly
set forth herein, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all
other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction
letter delivered by the Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection
with the delivery of any Shares to the Purchaser.
4.3 Entire Agreement. This Agreement and
the Underwriting Agreement, together with the Prospectus and the Pricing Prospectus, contain the entire understanding of the parties with
respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
4.4 Notices. Any and all notices or other
communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of: (a) the date of transmission, if such notice or communication is delivered via facsimile or email attachment at the
facsimile number or email address as set forth on the signature pages attached hereto at or prior to 4:00 p.m. (New York City time) on
a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile or
email attachment at the facsimile number or email address as set forth on the signature pages attached hereto on a day that is not a Trading
Day or later than 4:00 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to
be given. The address for such notices and communications are on file with the Company.
4.5 Amendments; Waivers. No provision of
this Agreement may be waived, modified, supplemented or amended except in a written instrument signed by the Company and the Purchaser,
in the case of a waiver, by the party against whom enforcement of any such waived provision is sought.
4.6 Headings. The headings herein are for
convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
4.7 Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Purchaser may not assign
this Agreement or any rights or obligations hereunder without the prior written consent of the Company. The Company may not assign this
Agreement without the prior written consent of the Purchaser.
4.8 No Third-Party Beneficiaries. This
Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit
of, nor may any provision hereof be enforced by, any other Person.
4.9 Governing Law. All questions concerning
the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.
4.10 Survival. The representations and
warranties contained herein shall survive the Closing and the delivery of the Shares.
4.11 Execution. This Agreement may be executed
in counterparts, all of which are considered one and the same agreement and will become effective when counterparts have been signed by
each party and delivered to the other parties. This Agreement may also be executed and delivered by facsimile signature, PDF or any electronic
signature complying with the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com).
4.12 Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ
an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction.
It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
4.13 Remedies. In addition to being entitled
to exercise all rights provided herein or granted by law, including recovery of damages, the Purchaser and the Company will be entitled
to specific performance hereunder. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason
of any breach of obligations contained herein and hereby agree to waive and not to assert in any action for specific performance of any
such obligation the defense that a remedy at law would be adequate.
4.14 Exculpation of the Underwriters. Each
party hereto agrees for the express benefit of the Underwriters and their representatives that:
(a) Each Underwriter and its affiliates and representatives
(i) has no duties or obligations other than those specifically set forth herein or in the Underwriting Agreement; (ii) shall not be liable
for any improper payment made in accordance with the information provided by the Company; (iii) makes no representation or warranty, and
has no responsibilities as to the validity, accuracy, value or genuineness of any information, certificates or documentation delivered
by or on behalf of the Company pursuant to this Agreement or in connection with any of the transactions contemplated hereby; and (iv)
shall not be liable (A) for any action taken, suffered or omitted by any of them in good faith and reasonably believed to be authorized
or within the discretion or rights or powers conferred upon them by this Agreement, (B) for anything which any of them may do or refrain
from doing in connection with this Agreement, except in each case for such person’s own gross negligence, willful misconduct or
bad faith or (C) for any action heretofore or hereafter taken or omitted to be taken by the Purchaser in connection with the Purchaser’s
purchase of the Shares.
(b) Each Underwriter and its affiliates and representatives
shall be entitled to (i) rely on, and shall be protected in acting upon, any certificate, instrument, notice, letter or any other document
or security delivered to any of them by or on behalf of the Company, and (ii) be indemnified by the Company pursuant to the indemnification
provisions set forth in the Underwriting Agreement. For the avoidance of doubt, the Underwriters are not acting as placement agents
pursuant to this Agreement.
4.15 Saturdays, Sundays, Holidays, etc.
If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business
Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
4.16 Construction. The parties agree that
each of them and/or their respective counsel have reviewed and had an opportunity to revise this Agreement and, therefore, the normal
rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation
of this Agreement or any amendments hereto.
(Signature Pages Follow)
IN WITNESS WHEREOF, the undersigned has caused
this Agreement to be duly executed by its respective authorized signatory(ies) as of the date first indicated above.
|
MDXHEALTH SA |
|
| |
|
|
| By: |
/s/ Michael McGarrity |
|
| |
Name:
| Michael McGarrity |
|
| |
Title:
| Director, Chief Executive Officer and
authorized representative |
|
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
IN WITNESS WHEREOF, the undersigned has caused
this Agreement to be duly executed by its respective authorized signatory(ies) as of the date first indicated above.
| GENOMIC HEALTH, INC. |
|
| |
|
|
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| By: |
/s/ Kevin T. Conroy |
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Name: |
Kevin T. Conroy |
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Title: |
CEO |
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Subscription Amount: $3,000,000 |
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Shares: 1,500,000 |
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[Signature Page to Securities
Purchase Agreement]
Exhibit 99.2
MDxHealth Announces
Launch of Offering of Ordinary Shares
IRVINE, CA, and HERSTAL, BELGIUM –September
25, 2024 (GlobeNewswire) – MDxHealth SA (NASDAQ: MDXH) (“mdxhealth” or the “Company”), a commercial-stage
precision diagnostics company, announced the launch of a proposed offering of $40.0 million of ordinary shares of the Company without
nominal value (“Ordinary Shares”) in a registered public offering (the “Offering”). The Company also
expects to grant the underwriters a 30-day option to purchase up to 15% of the Ordinary Shares being offered, excluding any Ordinary Shares
purchased directly from the Company in the Offering pursuant to any separate Securities Purchase Agreement. TD Cowen and William Blair
are acting as joint book-running managers for the Offering. The Offering is subject to market and other conditions, and there can be no
assurance as to whether or when the Offering may be completed, or as to the actual size or terms of the Offering, including the price
per Ordinary Share and number of Ordinary Shares sold in the Offering.
The Ordinary Shares described above are being
offered by mdxhealth pursuant to a registration statement previously filed with and subsequently declared effective by the Securities
and Exchange Commission (“SEC”). A preliminary prospectus supplement relating to the Offering has been filed with the SEC and
is available on the SEC’s website at http://www.sec.gov. This press release does not constitute an offer to sell or a solicitation
of an offer to buy securities of the Company nor shall there be any offer, solicitation or sale of these securities in any state or other
jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification or publication of an offering
prospectus under the securities laws of any such state or jurisdiction. Any offers, solicitations or offers to buy, or any sales of securities,
if at all, will be made in accordance with the registration requirements of the United States Securities Act of 1933.
Copies of the preliminary prospectus supplement,
and accompanying base prospectus relating to this offering, may be obtained from TD Securities (USA) LLC, 1 Vanderbilt Avenue, New York,
NY 10017, by email at TD.ECM_Prospectus@tdsecurities.com or by telephone at (855) 495-9846 and William Blair & Company, L.L.C., Attention:
Prospectus Department, 150 North Riverside Plaza, Chicago, IL 60606, or by telephone at (800) 621-0687, or by email at prospectus@williamblair.com.
For more information:
mdxhealth
info@mdxhealth.com
LifeSci Advisors (IR & PR)
US: +1 949 271 9223
ir@mdxhealth.com
IMPORTANT INFORMATION
This press release contains forward-looking
statements regarding the proposed offering and the intended use of proceeds from the offering. The offering is subject to market and other
conditions and there can be no assurance as to whether or when the offering may be completed or as to the actual size or terms of the
offering. Forward-looking statements involve known and unknown risks, uncertainties and other factors that could cause actual results
to differ materially, including those risks disclosed in the section “Risk Factors” included in the preliminary prospectus
supplement for the offering and in greater detail in our filings with the SEC. The Company cautions readers not to place undue reliance
on any forward-looking statements. The Company expressly disclaims any obligation to update any such forward-looking statements in this
release to reflect any change in its expectations with regard thereto or any change in events, conditions or circumstances on which any
such statement is based unless required by law or regulation. This press release does not constitute an offer or invitation for the sale
or purchase of securities or assets of mdxhealth in any jurisdiction. No securities of mdxhealth may be offered or sold within the United
States without registration under the U.S. Securities Act of 1933, as amended, or in compliance with an exemption therefrom, and in accordance
with any applicable U.S. securities laws.
No public offering will be made and
no one has taken any action that would, or is intended to, permit a public offering in any country or jurisdiction, other than the United
States, where any such action is required, including in Belgium. Belgian investors, other than qualified investors within the meaning
of Regulation (EU) 2017/1129 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated
market (the “Prospectus Regulation”), will not be eligible to participate in the Offering (whether in Belgium or elsewhere).
The transaction to which this press release relates will only be available to, and will be engaged in only with, in member states of the
European Economic Area, persons falling within the meaning of Article 2(e) of the Prospectus Regulation, and in the United Kingdom, investment
professionals falling within article 19 (5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”),
persons falling within article 49 (2), (a) to (d) of the Order and other persons to whom it may lawfully be communicated.
Exhibit 99.3
MDxHealth Announces
Pricing of Offering of Ordinary Shares
IRVINE, CA, and HERSTAL, BELGIUM –
September 25, 2024 (GlobeNewswire) – MDxHealth SA (NASDAQ: MDXH) (“mdxhealth” or the “Company”),
a commercial-stage precision diagnostics company, today announced that it has priced a registered public offering of 20,000,000 ordinary
shares of the Company without nominal value (“Ordinary Shares”) in a registered public offering (the “Offering”)
at a price to the public of $2.00 per Ordinary Share for total gross proceeds of $40.0 million before deducting commissions
and estimated offering expenses. A strategic partner is purchasing 1,500,000 Ordinary Shares in this Offering directly from the Company
rather than through the underwriters. In connection with the Offering, mdxhealth has granted the underwriters an option to purchase up
to an additional 2,775,000 Ordinary Shares, on the same terms and conditions.
The closing of the Offering is expected to
occur on September 27, 2024, subject to the satisfaction of customary closing conditions. The new Ordinary Shares will have the same rights
and benefits as, and rank pari passu in all respects, including as to entitlement to dividends and distributions, with, the Company’s
existing and outstanding Ordinary Shares and will be entitled to distributions in respect of which the relevant record date or due date
falls on or after the date of issue of the new shares.
Mdxhealth intends to use the net proceeds
from the Offering for general corporate and working capital purposes, including to fund product development efforts and commercial activities.
TD Cowen and William Blair are acting as joint
book-running managers and BTIG, LLC and Lake Street Capital Markets are acting as passive bookrunners for the Offering.
The Ordinary Shares described above are being
offered by mdxhealth pursuant to a registration statement previously filed with and subsequently declared effective by the Securities
and Exchange Commission (“SEC”). A preliminary prospectus supplement relating to the Offering has been filed with the SEC and
is available on the SEC’s website at http://www.sec.gov. This press release does not constitute an offer to sell or a solicitation
of an offer to buy securities of the Company nor shall there be any offer, solicitation or sale of these securities in any state or other
jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification or publication of an offering
prospectus under the securities laws of any such state or jurisdiction. Any offers, solicitations or offers to buy, or any sales of securities,
if at all, has been or will be made in accordance with the registration requirements of the United States Securities Act of 1933 and the
European Prospectus Regulation (Regulation (EU) 2017/1129), as relevant.
Copies of the preliminary prospectus supplement,
and accompanying base prospectus relating to this offering, may be obtained from TD Securities (USA) LLC, 1 Vanderbilt Avenue, New York,
NY 10017, by email at TD.ECM_Prospectus@tdsecurities.com or by telephone at (855) 495-9846; William Blair & Company, L.L.C., Attention:
Prospectus Department, 150 North Riverside Plaza, Chicago, IL 60606, or by telephone at (800) 621-0687, or by email at prospectus@williamblair.com;
BTIG, LLC, 350 Bush Street, 9th FL, San Francisco, CA 94104, Attention: Syndicate Department (415-248-2200) or by email at prospectusdelivery@btig.com;
and Lake Street Capital Markets, LLC, Attention: Syndicate Department, 920 Second Avenue South, Suite 700 Minneapolis, MN 55402, by telephone
at (612) 326-1305, or by email at syndicate@lakestreetcm.com.
For more information:
mdxhealth
info@mdxhealth.com
LifeSci Advisors (IR & PR)
US: +1 949 271 9223
ir@mdxhealth.com
IMPORTANT INFORMATION
This press release contains forward-looking
statements regarding the expected closing of the Offering and the intended use of proceeds from the Offering. The Offering is subject
to market and other conditions and there can be no assurance as to whether or when the offering may be completed. Forward-looking statements
involve known and unknown risks, uncertainties and other factors that could cause actual results to differ materially, including those
risks disclosed in the section “Risk Factors” included in the preliminary prospectus supplement for the offering and in greater
detail in our filings with the SEC. The Company cautions readers not to place undue reliance on any forward-looking statements. The Company
expressly disclaims any obligation to update any such forward-looking statements in this release to reflect any change in its expectations
with regard thereto or any change in events, conditions or circumstances on which any such statement is based unless required by law or
regulation. This press release does not constitute an offer or invitation for the sale or purchase of securities or assets of mdxhealth
in any jurisdiction. No securities of mdxhealth may be offered or sold within the United States without registration under the U.S. Securities
Act of 1933, as amended, or in compliance with an exemption therefrom, and in accordance with any applicable U.S. securities laws.
No public offering will be made and
no one has taken any action that would, or is intended to, permit a public offering in any country or jurisdiction, other than the United
States, where any such action is required, including in Belgium. Belgian investors, other than qualified investors within the meaning
of Regulation (EU) 2017/1129 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated
market (the “Prospectus Regulation”), will not be eligible to participate in the Offering (whether in Belgium or elsewhere).
The transaction to which this press release relates will only be available to, and will be engaged in only with, in member states of the
European Economic Area, persons falling within the meaning of Article 2(e) of the Prospectus Regulation, and in the United Kingdom, investment
professionals falling within article 19 (5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (the “Order”),
persons falling within article 49 (2), (a) to (d) of the Order and other persons to whom it may lawfully be communicated.
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