Galapagos NV’s share capital and shares
Share capital increases and issue of shares by Galapagos NV in 2017
On 1 January 2017, the share capital of Galapagos NV amounted to €250,187,166.48 represented by 46,256,078 shares. In the course of 2017 there were four capital increases resulting from the exercise of warrants, resulting in the issuance of 368,200 new shares, an increase of the share capital by €1,991,962.00 and an increase of the issuance premium account by €3,296,108.20. In addition, on 21 April 2017, Galapagos NV completed the offering in the U.S. of 4,312,500 new shares in the form of American Depositary Shares at a price of $90.00 per share. This resulted in a share capital increase of €23,330,625.00 and an increase of the issuance premium account by €340,593,425.64.
At the end of 2017, the share capital of Galapagos NV amounted to €275,509,753.48 represented by 50,936,778 shares.
On 20 January 2017, the board of directors issued 150,000 warrants (after acceptance by the beneficiary) within the framework of the authorized capital, for the benefit of Dr. Walid Abi-Saab in the context of his appointment as Chief Medical Officer (“Warrant Plan 2016 (B)”). The warrants issued under Warrant Plan 2016 (B) have a term of eight years and an exercise price of €62.50.
Schemes under which executive managers are remunerated in warrants should be subject to prior shareholder approval by way of a resolution at the general shareholders’ meeting pursuant to Principle 7.13 of the Belgian Corporate Governance Code 2009. In view of (i) the fact that this Warrant Plan 2016 (B) fell within the scope of the authorization granted by the extraordinary shareholders’ meeting to the board of directors on 26 April 2016 to use the authorized capital for the issue of warrants in the framework of the remuneration policy for Galapagos’ employees, directors and independent consultants and (ii) our interest in having Dr. Abi-Saab join Galapagos as soon as possible, we are of the opinion that it would not have been desirable to convene a special shareholders’ meeting to grant its express prior approval for this Warrant Plan 2016 (B).
On 17 May 2017, the board of directors issued 723,000 warrants (after acceptance by the beneficiaries) within the framework of the authorized capital, for the benefit of the directors and an independent consultant of Galapagos NV, and of employees of the group under new warrant plans (“Warrant Plan 2017” and “Warrant Plan 2017 RMV”). The offer of warrants to the directors and to the members of the executive committee under Warrant Plan 2017 was approved by the annual shareholders’ meeting of 25 April 2017. The warrants issued under Warrant Plan 2017 and Warrant Plan 2017 RMV have a term of eight years and an exercise price of €80.57.
Number and form of Galapagos shares
Of the 50,936,778 shares of Galapagos NV outstanding at the end of 2017, 6,786,054 were registered shares and 44,150,724 shares were dematerialized shares. All shares are issued and fully paid up and are of the same class.
Rights attached to Galapagos shares
Each share (i) entitles its holder to one vote at the shareholders’ meetings; (ii) represents an identical fraction of the share capital and has the same rights and obligations and shares equally in the profit of Galapagos NV; and (iii) gives its holder a preferential subscription right to subscribe to new shares, convertible bonds or warrants in proportion to the part of the share capital represented by the shares already held. The preferential subscription right can be restricted or cancelled by a resolution approved by the shareholders’ meeting, or by the board of directors subject to an authorization of the shareholders’ meeting, in accordance with the provisions of the Belgian Companies Code and Galapagos NV’s articles of association.
Galapagos NV’s authorized capital
In accordance with the articles of association, the extraordinary shareholders’ meeting of Galapagos NV authorized the board of directors to increase the share capital of Galapagos NV, in one or several times, and under certain conditions set forth in extenso in the articles of association of Galapagos NV. This authorization was renewed and is valid for a period of five years from the date of publication of this renewal in the Annexes to the Belgian State Gazette, i.e. 31 May 2017. The board of directors may increase the share capital of Galapagos NV within the framework of the authorized capital for an amount of up to €82,561,764.93. In 2017, Galapagos NV’s board of directors made use of the right to increase the capital in the framework of the authorized capital on three occasions (the first two of which took place under the previous authorized capital): (1) on 20 January 2017, in connection with the issuance of Warrant Plan 2016 (B), under which a maximum of 150,000 new shares can be issued for a total maximum capital increase of €811,500.00 (plus issuance premium); (2) on 21 April 2017, in connection with the public offering in the U.S. of 4,312,500 new shares in the form of American Depositary Shares, resulting in an increase of the share capital by €23,330,625.00 (plus issuance premium); and (3) on 17 May 2017, in connection with the issuance of Warrant Plan 2017 and Warrant Plan 2017 RMV, under which an aggregate maximum of 723,000 new shares can be issued for a total maximum capital increase of €3,911,430.00 (plus issuance premium). On 31 December 2017, an amount of €78,650,334.93 still remained available under the authorized capital.
When increasing the share capital within the limits of the authorized capital, the board of directors may, in Galapagos NV’s interest, restrict or cancel the shareholders’ preferential subscription rights, even if such restriction or cancellation is made for the benefit of one or more specific persons other than the employees of the group.
Procedure for changes in Galapagos NV’s share capital
In accordance with the Belgian Companies Code, Galapagos NV may increase or decrease its share capital by decision of the extraordinary shareholders’ meeting approved by a majority of 75% of the votes cast, at a meeting where at least 50% of the share capital of Galapagos NV is present or represented. If the attendance quorum of 50% is not met, a new extraordinary shareholders’ meeting must be convened at which the shareholders may decide on the agenda items, irrespective of the percentage of share capital present or represented at such meeting. In this respect, there are no conditions imposed by Galapagos NV’s articles of association that are more stringent than those required by law.
Within the framework of the powers granted to it under the authorized capital, the board of directors may also increase Galapagos NV’s capital as specified in its articles of association.
Purchase and sale of Galapagos treasury shares
In accordance with the Belgian Companies Code, Galapagos NV may purchase, subject to the provisions of the Belgian Companies Code, Galapagos NV’s own shares and dispose thereof by decision of the extraordinary shareholders’ meeting approved by a majority of 80% of the votes cast, at a meeting where at least 50% of the share capital of Galapagos NV is present or represented. If the attendance quorum of 50% is not met, a new extraordinary shareholders’ meeting must be convened at which the shareholders may decide on the agenda items, irrespective of the percentage of share capital present or represented at such meeting. The aforementioned rules are also applicable to the acquisition of shares of Galapagos NV by its subsidiaries.
The board of directors has currently not been authorized by an extraordinary shareholders’ meeting to purchase or sell its own shares.
On 31 December 2017, neither Galapagos NV nor any subsidiary of Galapagos NV held any shares in Galapagos NV, nor did any third party hold any shares in Galapagos NV on behalf of Galapagos NV or any of its subsidiaries either.
Anti-takeover provisions in Galapagos NV’s articles of association
Galapagos NV’s articles of association currently do not contain any anti-takeover provisions.
Anti-takeover provisions under Belgian law
Under Belgian law, public takeover bids for all outstanding voting securities of the issuer are subject to the supervision of the FSMA. If the latter determines that a takeover violates Belgian law, it may lead to suspension of the exercise of the rights attached to any shares that were acquired in connection with the envisaged takeover. Pursuant to the Belgian Law of 1 April 2007 on public takeovers, a mandatory takeover bid must be made when, as a result of its own acquisition or the acquisition by persons acting in concert with it, a person owns, directly or indirectly, more than 30% of the securities with voting rights in a company with registered office in Belgium whose securities are admitted to trading on a regulated or recognized market. The acquirer must offer to all other shareholders the opportunity to sell their shares at the higher of (i) the highest price offered by the acquirer for shares of the issuer during the 12 months preceding the announcement of the bid or (ii) the weighted average price of the shares on the most liquid market of the last 30 calendar days prior to the date on which it became mandatory for the acquirer to launch a mandatory takeover bid for the shares of all other shareholders.
Material contracts containing change of control clauses
The license and collaboration agreement between the company and Gilead Biopharmaceutics Ireland Unlimited Company dated 16 December 2015 contains provisions granting certain rights to Gilead upon the occurrence of a public takeover bid on our shares or a change of control in respect of Galapagos NV, including clause 15.6 (Assignment; Industry Transaction; Acquired Programs), entitling Gilead (i) in the event of an industry transaction involving Galapagos, as a result of which a drug company of a certain minimum size acquires control over Galapagos, to terminate our co-promotion rights, to disband all joint committees and undertake exclusive control of their activities; and (ii) in the event of a change of control as a result of which we acquire rights to an alternative product that would violate certain of our exclusivity obligations under the agreement, to require us to either divest or terminate this acquired program. Gilead Biopharmaceutics Ireland Unlimited Company’s rights and obligations under the license and collaboration agreement were assigned to another affiliate of Gilead on 7 December 2017.
The amended and restated global collaboration agreement between the company and AbbVie S.à r.l. dated 28 April 2016 contains provisions granting certain rights to AbbVie upon the occurrence of a public takeover bid on our shares or a change of control in respect of Galapagos NV, including clause 13.2 (Change in Control of Galapagos), entitling AbbVie, in the event of a change in control over the company, to disband the joint committees and assume their tasks, oblige us to take appropriate measures to avoid the disclosure of confidential information, terminate our co-promotion rights or, depending on the stage in which the change of control occurs, to terminate the agreement.
Procedure for amendments to Galapagos NV’s articles of association
Pursuant to the Belgian Companies Code, any amendment to the articles of association, such as an increase or decrease in the share capital of Galapagos NV, and certain other matters, such as the approval of the dissolution, merger or de-merger of Galapagos NV may only be authorized with the approval of at least 75% of the votes validly cast at an extraordinary shareholders’ meeting where at least 50% of Galapagos NV’s share capital is present or represented. If the attendance quorum of 50% is not met, a new extraordinary shareholders’ meeting must be convened at which the shareholders may decide on the agenda items, irrespective of the percentage of share capital present or represented at such meeting.