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Share Name | Share Symbol | Market | Type |
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Axon Enterprise Inc | NASDAQ:AXON | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
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1.80 | 0.57% | 318.55 | 310.80 | 329.00 | 321.00 | 316.64 | 319.24 | 279,176 | 01:00:00 |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy
Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
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Soliciting Material under §240.14a-12 |
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Suite 1, 3rd Floor
11-12 St. James's Square
London
SW1Y 4LB
United Kingdom
NOTICE OF SPECIAL GENERAL MEETING OF SHAREHOLDERS
To Be Held On December 21, 2017
Dear Shareholder:
You are cordially invited to attend an Axovant Sciences Ltd., or Axovant, Special General Meeting of Shareholders, or the Special Meeting, which will be held at [ · ] on Thursday, December 21, 2017 at 10:00 a.m. local time. Axovant has called the Special Meeting to allow its shareholders to vote on proposals to amend its Amended and Restated Bye-laws, or the Existing Bye-laws, to:
These items of business are more fully described in the proxy statement accompanying this Notice.
The Board is submitting these proposals after extensive engagement by the Board with investors. The Board believes these proposals demonstrate Axovant's commitment to good corporate governance and reflect the best interests of Axovant's shareholders. We describe the proposals and the Board's reasons for supporting them in more detail in the proxy statement accompanying this Notice.
Accordingly, the Board unanimously recommends that shareholders vote "FOR" each proposal on the enclosed proxy card.
The record date for the Special Meeting is Tuesday, November 28, 2017. Only shareholders of record at the close of business on that date are entitled to notice of and may vote at the Special Meeting or any adjournment thereof.
Important Notice Regarding the Availability of Proxy Materials for the Shareholders' Meeting to Be
Held on
Thursday, December 21, 2017 at 10:00 a.m. Local Time
at
[
·
]
.
The
Proxy Statement
is available at www.axovant.com/investors/proxy-materials.
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By Order of the Board of Directors | |
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David Hung, M.D.
|
London,
United Kingdom
[
·
], 2017
You are cordially invited to attend the Special Meeting in person. Whether or not you expect to attend the Special Meeting, please ensure your representation at the Special Meeting by completing, signing and dating the enclosed proxy card and returning it in the accompanying postage-paid envelope. Even if you have voted by proxy, you may still vote in person if you attend the Special Meeting. Please note, however, that if your shares are held of record by a broker, bank or other nominee and you wish to vote at the Special Meeting, you must obtain a proxy issued in your name from that record holder.
Suite 1, 3rd Floor
11-12 St. James's Square
London
SW1Y 4LB
United Kingdom
PROXY STATEMENT
FOR THE SPECIAL GENERAL MEETING OF SHAREHOLDERS
To Be Held On December 21, 2017
QUESTIONS AND ANSWERS ABOUT THESE PROXY MATERIALS AND VOTING
Why am I receiving these materials?
We have sent you these proxy materials because the Board of Directors, or the Board, of Axovant Sciences Ltd., or Axovant, is soliciting your proxy to vote at a Special General Meeting of Shareholders, or the Special Meeting, including at any adjournments or postponements of the Special Meeting. You are invited to attend the Special Meeting to vote on the proposals described in this proxy statement. However, you do not need to attend the Special Meeting to vote your shares. Instead, you may simply complete, sign and return the enclosed proxy card.
We intend to mail these proxy materials on or about December 1, 2017 to all shareholders of record entitled to vote at the Special Meeting.
Where and when will the Special Meeting be held?
The Special Meeting will be held on Thursday, December 21, 2017 at 10:00 a.m. local time at [ · ]. Information on how to vote in person at the Special Meeting is discussed below.
Who can vote at the Special Meeting?
Only shareholders of record at the close of business on Tuesday, November 28, 2017 will be entitled to vote at the Special Meeting. On this record date, there were [ · ] common shares outstanding and entitled to vote.
Shareholder of Record: Common Shares Registered in Your Name
If, as of the close of business on Tuesday, November 28, 2017, your common shares were registered directly in your name with our transfer agent, American Stock Transfer & Trust Company, LLC, then you are a shareholder of record. As a shareholder of record, you may vote in person at the Special Meeting or vote by proxy. Whether or not you plan to attend the Special Meeting, we urge you to fill out and return the enclosed proxy card to ensure your vote is counted.
Beneficial Owner: Common Shares Registered in the Name of a Broker or Bank
If, as of the close of business on Tuesday, November 28, 2017, your common shares were held, not in your name, but rather in an account at a brokerage firm, bank, dealer or other similar organization, then you are the beneficial owner of shares held in "street name" and these proxy materials are being forwarded to you by that organization. The organization holding your account is considered to be the shareholder of record for purposes of voting at the Special Meeting. As a beneficial owner, you have
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the right to direct your broker or other agent regarding how to vote the shares in your account. You are also invited to attend the Special Meeting. However, since you were not the shareholder of record, you may not vote your shares in person at the meeting unless you request and obtain a valid proxy from your broker or other agent.
What am I voting on?
There are six matters scheduled for a vote:
What if another matter is properly brought before the Special Meeting?
The Board knows of no other matters that will be presented for consideration at the Special Meeting. If any other matters are properly brought before the meeting, it is the intention of the persons named in the accompanying proxy to vote on those matters in accordance with their best judgment.
How do I vote?
For all matters to be voted on, you may vote "For" or "Against" or abstain from voting.
The procedures for voting are described below.
Shareholder of Record: Common Shares Registered in Your Name
If you are a shareholder of record, you may vote in person at the Special Meeting, or you may vote by proxy using the enclosed proxy card. Whether or not you plan to attend the Special Meeting, we urge you to vote by proxy to ensure your vote is counted. You may still attend the Special Meeting and vote in person, even if you have already voted by proxy.
Beneficial Owner: Common Shares Registered in the Name of Broker or Bank
If you are a beneficial owner of shares registered in the name of your broker, bank, or other agent, you should have received a voting instruction form with these proxy materials from that
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organization rather than from Axovant. Simply complete and mail the voting instruction form to ensure that your vote is counted. Alternatively, you may vote by telephone or online as instructed by your broker, bank, or other agent. To vote in person at the Special Meeting, you must obtain a valid proxy from your broker, bank or other agent. Follow the instructions from your broker or bank included with these proxy materials, or contact your broker, bank, or other agent to request a proxy form.
Internet proxy voting may be provided to allow you to vote your shares online, with procedures designed to ensure the authenticity and correctness of your proxy vote instructions. However, please be aware that you must bear any costs associated with your internet access, such as usage charges from internet access providers and telephone companies.
Will I be entitled to vote all of my shares at the Special Meeting?
If your shares are treated as "Controlled Shares" (as described below) of any "United States Person" (as defined under section 957(c) of the Internal Revenue Code of 1986, as amended, or the Code) and such United States Person is treated as owning 9.5% or more of the voting power of all issued shares of Axovant (in the absence of the adjustments to voting rights provided in the Existing Bye-laws and as described below) or otherwise treated as a "United States Shareholder" (as defined under section 951 of the Code) (such United States Person, other than a "9.5% Excluded U.S. Member" as defined in the Existing Bye-laws, is referred to as a 9.5% U.S. Member), then the voting rights of your shares that are treated as Controlled Shares of such 9.5% U.S. Member will be reduced, in the aggregate with other Controlled Shares of such 9.5% U.S. Member, to the extent necessary for Controlled Shares of such 9.5% U.S. Member to constitute less than 9.5% of the voting power of all issued and outstanding shares, under a formula specified in the Existing Bye-laws. The formula is applied repeatedly until there is no 9.5% U.S. Member.
In addition, the Board may limit a shareholder's voting rights when it deems it appropriate to do so to (1) avoid the existence of any 9.5% U.S. Member; or (2) avoid adverse tax, legal or regulatory consequences to us, any of our subsidiaries or any direct or indirect shareholder or its affiliates. As provided in the Existing Bye-laws, "Controlled Shares" of a United States Person refer to all shares that such United States Person is treated as owning directly, indirectly or constructively (within the meaning of section 958 of the Code). The amount of any reduction of votes that occurs by operation of the above limitations will generally be reallocated proportionately among our other shareholders whose shares are not Controlled Shares of a 9.5% U.S. Member so long as such reallocation does not cause any person to become a 9.5% U.S. Member. The applicability of the voting power reduction provisions to any particular shareholder depends on facts and circumstances that may be known only to the shareholder or related persons. Accordingly, we request that any holder of shares with reason to believe that it may be a 9.5% U.S. Member in the absence of the adjustments to voting rights provided in the Existing Bye-laws, contact us promptly so that we may determine whether the voting power of such holder's shares have been or should be reduced.
By submitting a proxy, a holder of shares will be deemed to have confirmed that, to its knowledge, it is not, and is not acting on behalf of, a 9.5% U.S. Member. The Board is empowered to require any shareholder to provide information as to that shareholder's beneficial ownership of shares, the names of persons having beneficial ownership of the shareholder's shares, relationships with other shareholders or any other facts the Board may consider relevant to the determination of the number of shares attributable to any person. The Board may disregard the votes attached to shares of any holder who fails to respond to such a request or who, in its judgment, submits incomplete or inaccurate information. The Board retains certain discretion to make such final adjustments that it considers fair and reasonable in all the circumstances as to the aggregate number of votes attaching to the shares of any shareholder to ensure that no person will be a 9.5% U.S. Member at any time.
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How many votes do I have?
Except as described in the question and answer immediately above, on each matter to be voted upon, you have one vote for each common share you owned as of the close of business on Tuesday, November 28, 2017.
What happens if I do not vote?
Shareholder of Record: Shares Registered in Your Name
If you are a shareholder of record and do not vote in person at the Special Meeting or do not complete and deliver your proxy card, your shares will not be voted.
Beneficial Owner: Shares Registered in the Name of Broker or Bank
If you are a beneficial owner and do not instruct your broker, bank, or other agent how to vote your shares, your broker or nominee will not be able to vote your shares. Brokers and nominees cannot use their discretion to vote "uninstructed" shares with respect to matters that are considered to be "non-routine." "Non-routine" matters, generally, are matters that may substantially affect the rights or privileges of shareholders, such as mergers, shareholder proposals, elections of directors (even if not contested) and certain corporate governance proposals (even if management-supported), including those proposals scheduled for a vote at the Special Meeting. Accordingly, your broker or nominee may not vote your shares on any proposal at the Special Meeting in the absence of your instruction.
What if I return a proxy card or otherwise vote but do not make specific choices?
If you return a signed and dated proxy card or otherwise vote without marking voting selections, your shares will be voted, as applicable:
If any other matter is properly presented at the meeting, your proxyholder (one of the individuals named on your proxy card) will vote your shares using his or her best judgment.
Who is paying for this proxy solicitation?
We will pay for the entire cost of soliciting proxies. In addition to these proxy materials, our directors and employees may also solicit proxies in person, by telephone or by other means of communication. Directors and employees will not be paid any additional compensation for soliciting proxies. We may also reimburse brokerage firms, banks and other agents for the cost of forwarding proxy materials to beneficial owners.
What does it mean if I receive more than one set of proxy materials?
If you receive more than one set of proxy materials, your shares may be registered in more than one name or in different accounts. Please follow the voting instructions on the proxy card in each set of proxy materials to ensure that all of your shares are voted.
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Can I change my vote after submitting my proxy?
Shareholder of Record: Shares Registered in Your Name
Yes. You can revoke your proxy at any time before the final vote at the Special Meeting. If you are the record holder of your shares, you may revoke your proxy in any one of the following ways:
Your most current proxy card is the one that is counted.
Beneficial Owner: Shares Registered in the Name of Broker or Bank
If your shares are held by your broker or bank as a nominee or agent, you should follow the instructions provided by your broker or bank.
When are shareholder proposals and director nominations due for next year's annual general meeting of Shareholders?
To be considered for inclusion in next year's proxy materials, your proposal must be submitted in writing by Friday, March 23, 2018 to Axovant Sciences Ltd., Attn: Corporate Secretary, at Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda. If you wish to nominate an individual for election at, or bring business other than through a shareholder proposal before, the 2018 annual general meeting of Shareholders, you must deliver your notice to Axovant's Corporate Secretary no earlier than April 20, 2018 and no later than May 20, 2018. Your notice to the Corporate Secretary must set forth the information specified in our Existing Bye-laws.
For more information, and for the detailed requirements, please refer to the Existing Bye-laws filed as Exhibit 3.4 to our Registration Statement on Form S-1/A (File No. 333-204073) filed with the U.S. Securities and Exchange Commission, or the SEC, on June 1, 2015 if Proposal 2 is not approved by the shareholders or the Restated Bye-laws (as defined below) filed as Appendix A hereto if Proposal 2 is approved by the shareholders.
How are votes counted?
Votes will be counted in the first instance on a show of hands. If a poll is demanded, however, in accordance with the Existing Bye-laws, every person present at the Special Meeting will have one vote for each common share of which such person is the holder or for which such person holds a proxy. A poll vote will be taken by ballot if so demanded in accordance with our Existing Bye-laws. With respect to each of the proposals expected to be voted upon at the Special Meeting, votes "For" and "Against" and abstentions and broker non-votes will be separately counted.
What are "broker non-votes"?
As discussed above, when a beneficial owner of shares held in "street name" does not give instructions to the broker or nominee holding the shares as to how to vote on non-routine matters, the broker or nominee cannot vote the shares. These unvoted shares are counted as "broker non-votes." Each proposal expected to be voted upon at the Special Meeting is "non-routine."
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How many votes are needed to approve each proposal?
Proposals 1 and 5 will require the approval of 66 2 / 3 % of the votes attaching to all shares in issue. Abstentions and broker non-votes will have the same effect as a vote "Against" such proposal.
Proposals 2, 4 and 6 will be decided by the affirmative votes of a majority of the votes cast in accordance with our Bye-laws. For purposes of such proposals, only votes "For" or "Against" will affect the outcome. Abstentions and broker non-votes are not considered to be votes cast and therefore will have no effect.
Proposal 3 will require (i) the approval of 66 2 / 3 % of the votes attaching to all shares in issue for purposes of amending Section 84 of the Existing Bye-laws and (ii) the affirmative votes of a majority of the votes cast for purposes of amending Section 83 of the Existing Bye-laws. For purposes of (i), abstentions and broker non-votes will have the same effect as a vote "Against" such proposal, and (ii) only votes "For" or "Against" will affect the outcome, since abstentions and broker non-votes are not considered to be votes cast.
What is the quorum requirement?
A quorum of shareholders is necessary to hold a valid meeting. A quorum will be present if two or more persons are present at the start of the Special Meeting and represent in person or by proxy in excess of 50% of our total issued voting shares. On the record date, there were [ · ] common shares outstanding and entitled to vote. Therefore, the holders of [ · ] common shares must be present in person or represented by proxy at the Special Meeting to have a quorum.
Your shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker, bank or other nominee) or if you vote in person at the Special Meeting. Abstentions and broker non-votes will be counted towards the quorum requirement. If, within half an hour from the time appointed for the Special Meeting, a quorum is not present, then the meeting will stand adjourned to the same day one week later, at the same time and place or to such other day, time or place as the Corporate Secretary may determine. Unless the meeting is adjourned to a specific date, place and time announced at the Special Meeting being adjourned, fresh notice of the date, place and time for the resumption of the adjourned meeting will be given to each shareholder entitled to attend and vote thereat in accordance with our Existing Bye-laws.
How can I find out the results of the voting at the Special Meeting?
Preliminary voting results will be announced at the Special Meeting. In addition, final voting results will be published in a Current Report on Form 8-K that we expect to file within four business days after the Special Meeting. If final voting results are not available to us in time to file a Current Report on Form 8-K within four business days after the Special Meeting, we intend to file a Current Report on Form 8-K to publish preliminary results and, within four business days after the final results are known to us, file an additional Current Report on Form 8-K to publish the final results.
What proxy materials are available on the internet?
The proxy statement is available at www.axovant.com/investors/proxy-materials.
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PROPOSAL 1
AMENDMENTS TO THE EXISTING BYE-LAWS TO DECLASSIFY THE BOARD
Summary of the Declassification Amendment Proposal
We are asking our shareholders to approve amendments to the Existing Bye-laws to reorganize the Board into a single class with each director subject to election at each annual general meeting.
Background
Many institutional investors believe that the election of directors is the primary means for shareholders to influence corporate governance policies and to hold management accountable for implementing those policies. Similarly, many institutional investors believe that a classified structure may reduce directors' accountability to shareholders because such a structure does not enable shareholders to express their approval or other views on each director's performance on an annual basis.
Upon consideration, the Board determined that declassifying the Board is in the best interests of Axovant's shareholders and it has unanimously adopted a resolution approving and declaring advisable the amendments to the Existing Bye-laws described below in order to effect such change.
Proposed Amendments
Sections 44 and 45 of the Existing Bye-laws require that the Board be divided into three classes, with the directors in each class serving three-year terms and only one class facing election each year. Thus, each year, our shareholders elect only one class of directors, constituting approximately one-third of the Board.
Under the proposed amendments to the Existing Bye-laws in this Proposal 1, Sections 44 and 45 of the Existing Bye-laws would be amended to eliminate the classified board structure. If this Proposal 1 is approved by our shareholders, the directors elected at or after Axovant's 2018 annual general meeting of shareholders would be elected to one-year terms expiring at the next annual general meeting of shareholders following their election. In all cases, each director would hold office until his or her successor is duly elected and qualified, until his or her earlier resignation or removal, or, if sooner, at the next special general meeting called for the purpose of electing a new slate of directors. Any director appointed to the Board to fill a vacancy following the 2018 annual general meeting of shareholders would hold office for a term expiring at the annual general meeting of shareholders immediately following such appointment. Directors elected before Axovant's 2018 annual general meeting of shareholders would close out their terms at that meeting and declassification would be complete thereafter.
Effectiveness
The amendments described in this Proposal 1 will not become effective unless approved by the affirmative vote of at least 66 2 / 3 % of the votes attaching to all Axovant shares in issue.
If this Proposal 1 is not approved, the Board will remain classified and the directors will continue to be elected to serve three-year terms as currently set forth in the Existing Bye-laws.
The description of the proposed amendments to the Existing Bye-laws set forth in this Proposal 1 is only a summary and is qualified in its entirety by reference to the full text of such proposed amendments to the Existing Bye-laws, a copy of which is provided in Appendix A to this Proxy Statement, with additions of text indicated by underlining and deletions of text indicated by strike-outs, and such revised draft is hereafter referred to as the Restated Bye-laws. The text of Appendix A is incorporated into this discussion by reference. Shareholders are encouraged to read the full text of the Restated Bye-laws in Appendix A .
THE BOARD UNANIMOUSLY RECOMMENDS
THAT YOU VOTE "FOR" PROPOSAL 1
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PROPOSAL 2
AMENDMENTS TO THE EXISTING BYE-LAWS TO MODIFY SHAREHOLDER PROPOSAL AND NOMINATION PROCEDURES
Summary of the Shareholder Proposal and Nomination Amendment Proposal
We are asking our shareholders to approve amendments to the Existing Bye-Laws that would limit the right of a shareholder to (i) nominate a person for election to the Board at an annual general meeting or special general meeting or (ii) propose other business to be transacted at an annual general meeting, in each case to any shareholder who has held 5% or more of the voting power of Axovant's issued shares for at least two years, such shareholder is hereafter referred to as an Eligible Member.
Background
The Board believes that it has an open line of communication with Axovant's shareholders and is highly engaged and responsive to such shareholders. Additionally, the Board believes that Axovant's shareholders have several opportunities and vehicles available to them to ensure that the Board is responsive and accountable to shareholders. Shareholders can confidently rely upon Axovant's strong corporate governance practices, including those being proposed for approval by shareholders at the Special Meeting, Bermuda laws and SEC regulations, and stock market rules to hold our Board accountable and ensure that director elections are meaningful and that shareholders have an appropriate influence over the operations of the business.
The Board believes that permitting all shareholders to make proposals or to nominate directors for consideration at Axovant's annual general meetings and special general meetings, as applicable, has the potential to distract the Board and management to the extent many such nominations or proposals are submitted. Such provisions could also enable a shareholder without a significant interest in the business to submit proposals or nominations representing a personal or special interest agenda without considering the impact on those shareholders who possess significantly greater interests in Axovant.
As a result, the Board determined that limiting the shareholders eligible to make such nominations and proposals to Eligible Members is in the best interests of Axovant's shareholders and it has unanimously adopted a resolution approving and declaring advisable the amendments to the Existing Bye-laws described below in order to effect such change. These amendments would not purport to limit shareholders' ability to submit proposals for consideration at shareholder meetings in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended.
Proposed Amendments
The proposed amendments to Sections 24.1 and 24.2 of the Existing Bye-laws, together with the addition of the definition of Eligible Member to Section 1.1 of the Existing Bye-laws, would permit any Eligible Member to submit proposals of business to be transacted or nominations for director to be considered at the annual general meeting, as applicable, or nominations for director at a special general meeting. Any such proposals or nominations submitted in accordance with notice provisions set forth in the Existing Bye-Laws would be included in a proxy statement prepared by Axovant to solicit proxies for the applicable meeting. These amendments would not purport to limit shareholders' ability to submit proposals for consideration at shareholder meetings in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended.
A proposed amendment to Section 24.2 of the Existing Bye-laws would also provide that if an Eligible Member submits a director nomination pursuant to a requisition of a special general meeting in accordance with the requirements to requisition a special general meeting in accordance with Section 21 of the Existing Bye-laws, notice shall be deemed timely for purposes of Section 24.2.
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Finally, we propose to strike Section 24.5 from the Existing Bye-laws. Section 24.5 is an extraneous provision that references director nominations made pursuant to the Shareholder's Agreement. This reference was initially included in Axovant's Bye-laws in error.
Effectiveness
The amendments described in this Proposal 2 will not become effective unless approved by the affirmative vote of a majority of the votes cast at the Special Meeting.
If this Proposal 2 is approved, the proposed Bye-law amendments will be effective immediately following the Special Meeting and the new shareholder nomination procedures will be available for use at the 2018 annual general meeting or at the next special general meeting, whichever is sooner. If this Proposal 2 is not approved, Sections 1.1, 24.1, 24.2 and 24.5 of the Existing Bye-laws will not be amended.
The description of the proposed amendments to the Existing Bye-laws set forth in this Proposal 2 is only a summary and is qualified in its entirety by reference to the full text of the Restated Bye-laws, a copy of which is provided in Appendix A to this Proxy Statement, with additions of text indicated by underlining and deletions of text indicated by strike-outs. The text of Appendix A is incorporated into this discussion by reference. Shareholders are encouraged to read the full text of the Restated Bye-laws in Appendix A .
THE BOARD UNANIMOUSLY RECOMMENDS
THAT YOU VOTE "FOR" PROPOSAL 2
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PROPOSAL 3
AMENDMENTS TO THE EXISTING BYE-LAWS TO MODIFY CERTAIN SUPERMAJORITY VOTING REQUIREMENTS
Summary of the Supermajority Amendments Proposal
We are asking our shareholders to approve certain amendments to the Existing Bye-laws that would replace provisions requiring approval of 66 2 / 3 % of the directors and holders of all shares in issue to alter or rescind certain sections of the Existing Bye-laws with a simple majority standard. In particular, these amendments would allow amendments to the Restated Bye-laws, as well as Axovant's Memorandum of Association, or the Memorandum, with approval of a majority of the directors and votes cast by shareholders at a general meeting of Axovant's shareholders.
Background
The Board recognizes that our shareholders would benefit from a reduction of the current 66 2 / 3 % supermajority voting thresholds, since they pose a challenging threshold to effect certain changes to the Existing Bye-laws and the Memorandum. If such a reduction is approved by shareholders, it will give Axovant's shareholders greater influence over Axovant's corporate governance and further align our policies with corporate governance best practices.
For this reason, the Board determined that reducing the current supermajority voting thresholds from 66 2 / 3 % to a simple majority voting threshold is in the best interests of Axovant's shareholders and it has unanimously adopted a resolution approving and declaring advisable the amendments described in this Proposal 3.
Proposed Amendments
Section 83 of the Existing Bye-laws requires approval of not less than 66 2 / 3 % of the directors then in office and the votes attaching to all shares in issue to amend Sections 30 (Power to Demand Vote on Poll), 43 (Election of Directors), 44 (Classes of Directors), 47 (Removal of Directors), 59 (Indemnification and Exculpation of Directors and Officers) and 82 (Winding Up) of the Existing Bye-laws and Section 84 of the Existing Bye-laws (Changes to the Memorandum of Association) of the Existing Bye-laws requires approval of not less than 66 2 / 3 % of the votes attaching to all shares in issue to make any alterations or amendments to the Memorandum. If Proposal 3 is approved, Sections 83 and 84 of the Existing Bye-laws would be amended so that amendments to any section of the Restated Bye-laws or any alterations or amendments to the Memorandum could be effected with approval of a simple majority resolution by the Board and votes cast by shareholders at a general meeting of Axovant's shareholders.
Effectiveness
The amendments described in this Proposal 3 that would eliminate the need for a supermajority to amend certain sections of the Existing Bye-laws will not become effective unless approved by the affirmative vote of a majority of the votes cast at the Special Meeting. The amendments described in this Proposal 3 to eliminate the need for a supermajority to make any alterations or amendments to the Memorandum of Association will not become effective unless approved by the affirmative vote of at least 66 2 / 3 % of the votes attaching to all shares in issue.
If this Proposal 3 is adopted, the proposed Bye-law amendments will be effective immediately following the Special Meeting and the new voting procedures will be available for use immediately. If this Proposal 3 is not approved, Sections 83 and 84 of the Existing Bye-laws will not be amended.
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The description of the proposed amendments to the Existing Bye-laws set forth in this Proposal 3 is only a summary and is qualified in its entirety by reference to the full text of the Restated Bye-laws, a copy of which is provided in Appendix A to this Proxy Statement, with additions of text indicated by underlining and deletions of text indicated by strike-outs. The text of Appendix A is incorporated into this discussion by reference. Shareholders are encouraged to read the full text of the Restated Bye-laws in Appendix A.
THE BOARD UNANIMOUSLY RECOMMENDS
THAT YOU VOTE "FOR" PROPOSAL 3
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PROPOSAL 4
AMENDMENT TO THE EXISTING BYE-LAWS TO PERMIT OUR PRINCIPAL EXECUTIVE OFFICER TO SUMMON MEETINGS OF THE BOARD
Summary of Notice of Board Meetings Amendment Proposal
We are asking our shareholders to approve an amendment to the Existing Bye-laws that would allow our Principal Executive Officer to summon a Board meeting at any time.
Background
The Existing Bye-Laws permit the Chairman, a majority of directors then in office, or the Secretary of Axovant upon the requisition of a director, to summon a meeting of the Board. The Board believes that the Principal Executive Officer should also be permitted to summon a meeting of the Board given his or her familiarity with the operations of the business and the potential that he or she may identify an issue that requires prompt attention from the Board. As a result, the Board determined that permitting the Principal Executive Officer to summon a meeting of the Board at any time is in the best interests of Axovant and its shareholders and the Board has unanimously adopted a resolution approving and declaring advisable the amendments described in this Proposal 4.
Proposed Amendments
Section 61 of the Existing Bye-laws would be amended to allow the Principal Executive Officer to summon a meeting of the Board at any time.
Effectiveness
This amendment described in this Proposal 4 will not become effective unless approved by the affirmative vote of a majority of the votes cast at the Special Meeting.
If this Proposal 4 is adopted, the proposed Bye-law amendment will be effective immediately following the Special Meeting. If this Proposal 4 is not approved, Section 61 of the Existing Bye-laws will not be amended.
The description of the proposed amendments to the Existing Bye-laws set forth in this Proposal 4 is only a summary and is qualified in its entirety by reference to the full text of the Restated Bye-laws, a copy of which is provided in Appendix A to this Proxy Statement, with additions of text indicated by underlining and deletions of text indicated by strike-outs. The text of Appendix A is incorporated into this discussion by reference. Shareholders are encouraged to read the full text of the Restated Bye-laws in Appendix A.
THE BOARD UNANIMOUSLY RECOMMENDS
THAT YOU VOTE "FOR" PROPOSAL 4
12
PROPOSAL 5
AMENDMENT TO THE EXISTING BYE-LAWS TO MODIFY CERTAIN DIRECTOR REMOVAL AND VACANCY REQUIREMENTS
Summary of Director Removal and Vacancy Proposal
We are asking our shareholders to approve amendments to the Existing Bye-laws intended to (i) clarify that the right of shareholders to remove directors with cause is in addition to their right to requisition the Board to convene a special general meeting for purposes of ending the term of the then-current directors and electing a new slate of directors, (ii) provide that a director shall immediately vacate his or her position if they are not re-elected at an annual general meeting or at a special general meeting called for the purpose of electing a new slate of directors, and (iii) permit a director's resignation to become effective on a date after they submit notice to Axovant, so long as such future date is agreed by the Board.
Background
The Board believes that it is not clear in Section 47 of the Existing Bye-Laws that shareholders have both the right to remove directors for cause and to requisition the Board to convene a special general meeting for purposes of ending the term of the then-current directors and electing a new slate of directors. The Board believes that as a matter of good governance and to support shareholder democracy, it is critical that the Restated Bye-laws are clear that shareholders possess both rights.
Additionally, the Board believes that Section 48 of the Existing Bye-laws should be amended to provide that (i) directors must vacate their position immediately if they are removed, become bankrupt, become of unsound mind or die or if they are not re-elected at a general meeting of shareholders and (ii) the Board has flexibility to agree to delay the effectiveness of a resignation following notice by a director. These revisions will ensure that without the Board's approval, directors may not remain in their position and potentially disrupt the Board process once they have vacated their position and that the Board can effect a smooth transition if a director delivers their resignation notice prior to the date on which the Board and such director agree the director should leave office.
As a result, the Board determined that such amendments are in the best interests of Axovant and its shareholders and the Board has unanimously adopted a resolution approving and declaring advisable the amendments described in this Proposal 5.
Proposed Amendments
Section 47 of the Existing Bye-laws would be amended to clarify that the right of shareholders to remove directors with cause is in addition to their rights to requisition the Board to convene a special general meeting for purposes of ending the term of the then-current directors and electing a new slate of directors. Section 48 of the Existing Bye-laws would be amended to provide that (i) a director shall immediately vacate his or her position if they are not re-elected at an annual general meeting or at a special general meeting called for the purpose of electing a new slate of directors and (ii) a director's resignation may be effective on a date after they submit notice to Axovant, so long as such future date is agreed by the Board.
Effectiveness
The amendments described in this Proposal 5 will not become effective unless approved by the affirmative vote of at least 66 2 / 3 % of the votes attaching to all Axovant shares in issue .
13
If this Proposal 5 is adopted, the proposed Bye-law amendments will be effective immediately following the Special Meeting. If this Proposal 5 is not approved, Sections 47 and 48 of the Existing Bye-laws will not be amended.
The description of the proposed amendments to the Existing Bye-laws set forth in this Proposal 5 is only a summary and is qualified in its entirety by reference to the full text of the Restated Bye-laws, a copy of which is provided in Appendix A to this Proxy Statement, with additions of text indicated by underlining and deletions of text indicated by strike-outs. The text of Appendix A is incorporated into this discussion by reference. Shareholders are encouraged to read the full text of the Restated Bye-laws in Appendix A.
THE BOARD UNANIMOUSLY RECOMMENDS
THAT YOU VOTE "FOR" PROPOSAL 5
14
PROPOSAL 6
AMENDMENT TO THE EXISTING BYE-LAWS TO REVISE CERTAIN PROVISIONS
Summary of Revisions to Certain Provisions Proposal
Section 83 of the Existing Bye-laws requires a resolution of the Board and shareholders to rescind, alter or amend any section of the Existing Bye-laws, including for immaterial revisions. As a result, we are asking our shareholders to approve amendment to the Existing Bye-laws to address the following immaterial changes to the Existing Bye-laws:
The Board has unanimously adopted a resolution approving and declaring advisable the amendments to the Existing Bye-laws described above.
Effectiveness
The amendments described in this Proposal 6 will not become effective unless approved by the affirmative vote of a majority of the votes cast at the Special Meeting.
If this Proposal 6 is approved, the proposed Bye-law amendments described above will be effective immediately following the Special Meeting. If this Proposal 6 is not approved, the Existing Bye-laws will not be amended to reflect such proposed revisions.
This description of the proposed amendments to the Existing Bye-laws set forth in this Proposal 6 is only a summary and is qualified in its entirety by reference to the full text of the Restated Bye-laws, a copy of which is provided in Appendix A to this Proxy Statement, with additions of text indicated by underlining and deletions of text indicated by strike-outs. The text of Appendix A is incorporated into this discussion by reference. Shareholders are encouraged to read the full text of the Restated Bye-laws in Appendix A.
THE BOARD UNANIMOUSLY RECOMMENDS
THAT YOU VOTE "FOR" PROPOSAL 6
15
Security Ownership of
Certain Beneficial Owners and Management
The following table sets forth certain information regarding the ownership of our common shares as of October 31, 2017 by:
This table is based upon information supplied by officers, directors and principal shareholders and filings with the SEC. Unless otherwise indicated in the footnotes to this table and subject to community property laws where applicable, we believe that each of the shareholders named in this table has sole voting and dispositive power with respect to the shares indicated as beneficially owned. Applicable percentages are based on 107,710,160 shares outstanding on October 31, 2017, adjusted as required by rules promulgated by the SEC. Except as set forth below, the principal business address of each such person or entity is c/o Axovant Sciences Ltd., Suite 1, 3rd Floor, 11-12 St. James's Square, London, SW1Y 4LB, United Kingdom.
Beneficial Owner
|
Number of Shares
Beneficially Owned |
Percent of Shares
Beneficially Owned |
|||||
---|---|---|---|---|---|---|---|
5% Shareholders: |
|||||||
Roivant Sciences Ltd. (1) |
75,000,000 | 69.6 | % | ||||
Named Executive Officers and Directors: |
|||||||
Vivek Ramaswamy (2) |
357,000 | * | |||||
Gregory M. Weinhoff, M.D. (2) |
829,096 | * | |||||
Lawrence T. Friedhoff, M.D., Ph.D. (2)(3) |
600,000 | * | |||||
David T. Hung, M.D. (4) |
4,539,375 | 4.1 | |||||
Kathryn E. Falberg (5) |
123,937 | * | |||||
Patrick Machado (1)(6) |
75,070,000 | 69.7 | |||||
Berndt Modig (2) |
159,000 | * | |||||
Ilan Oren |
| | |||||
Atul Pande, M.D. (2) |
149,000 | * | |||||
W. Anthony Vernon (5) |
123,937 | * | |||||
All executive officers and directors as a group (13 persons) (7) |
83,906,045 | 72.4 | % |
16
Dexxon Holdings Limited ("Dexxon"), Viking Global Investors LP, Viking Global Performance LLC, Viking Global Equities LP, Viking Global Equities II LP, VGE III Portfolio Ltd., Viking Long Fund GP LLC, Viking Long Fund Master Ltd., Viking Global Opportunities GP LLC, Viking Global Opportunities Portfolio GP LLC, Viking Global Opportunities Illiquid Investments Sub-Master LP, O. Andreas Halvorsen, Rose S. Shabet and David C. Ott (collectively, "Viking"), QVT Financial LP, QVT Financial GP LLC, QVT Associates GP LLC and QVT Fund V LP (collectively, "QVT") and SVF Investments (UK) Limited, SVF Holdings (UK) LLP, SoftBank Vision Fund L.P. and SVF GP (Jersey) Limited (collectively, "SVF") may each be deemed to have shared dispositive power, and therefore, beneficial ownership, over our common shares owned directly by RSL. The principal business address of RSL is Suite 1, 3rd Floor, 11-12 St. James's Square, London, SW1Y 4LB, United Kingdom.
17
Householding of Proxy Materials
The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for Special Meeting materials with respect to two or more shareholders sharing the same address by delivering a single set of Special Meeting materials addressed to those shareholders. This process, which is commonly referred to as "householding," potentially means extra convenience for shareholders and cost savings for companies.
For this Special Meeting, a number of brokers with account holders who are Axovant shareholders will be "householding" our proxy materials. A single set of Special Meeting materials will be delivered to multiple shareholders sharing an address unless contrary instructions have been received from the affected shareholders. Once you have received notice from your broker that they will be "householding" communications to your address, "householding" will continue until you are notified otherwise or until you revoke your consent. If, at any time, you no longer wish to participate in "householding" and would prefer to receive a separate set of Special Meeting materials, please notify your broker or Axovant. Direct your written request to Axovant Sciences, Ltd., Attn: Corporate Secretary, at Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda. Shareholders who currently receive multiple copies of the Special Meeting materials at their addresses and would like to request "householding" of their communications should contact their brokers.
Other Matters
The Board knows of no other matters that will be presented for consideration at the Special Meeting. If any other matters are properly brought before the meeting, it is the intention of the persons named in the accompanying proxy to vote on such matters in accordance with their best judgment.
By Order of the Board of Directors | ||
|
|
David Hung, M.D. Principal Executive Officer |
[ · ], 2017
18
APPENDIX A
SECOND AMENDED AND RESTATED BYE-LAWS OF
AXOVANT SCIENCES LTD.
TABLE OF CONTENTS
|
|
|
|||||
---|---|---|---|---|---|---|---|
Interpretation |
|||||||
1. |
Definitions |
1 | |||||
Shares |
|||||||
2. |
Power to Issue Shares |
3 | |||||
3. |
Power of the Company to Purchase its Shares |
3 | |||||
4. |
Rights Attaching to Shares |
3 | |||||
5. |
Calls on Shares |
5 | |||||
6. |
Forfeiture of Shares |
5 | |||||
7. |
Share Certificates |
6 | |||||
8. |
Fractional Shares |
6 | |||||
Registration of Shares |
|||||||
9. |
Register of Members |
7 | |||||
10. |
Registered Holder Absolute Owner |
7 | |||||
11. |
Transfer of Registered Shares |
7 | |||||
12. |
Transmission of Registered Shares |
8 | |||||
Alteration of Share Capital |
|||||||
13. |
Power to Alter Capital |
9 | |||||
14. |
Variation of Rights Attaching to Shares |
9 | |||||
Dividends and Capitalisation |
|||||||
15. |
Dividends |
9 | |||||
16. |
Power to Set Aside Profits |
10 | |||||
17. |
Method of Payment |
10 | |||||
18. |
Capitalisation |
10 | |||||
Meetings of Members |
|||||||
19. |
Annual General Meetings |
11 | |||||
20. |
Special General Meetings |
11 | |||||
21. |
Requisitioned General Meetings |
11 | |||||
22. |
Notice |
11 | |||||
23. |
Giving Notice and Access |
11 | |||||
24. |
Notice of Nominations and Member Business |
12 | |||||
25. |
Postponement or Cancellation of General Meeting |
15 | |||||
26. |
Electronic Participation and Security at General Meetings |
15 | |||||
27. |
Quorum at General Meetings |
16 | |||||
28. |
Chairman to Preside at General Meetings |
16 | |||||
29. |
Voting on Resolutions |
16 | |||||
30. |
Power to Demand Vote on Poll |
17 | |||||
31. |
Voting by Joint Holders of Shares |
17 | |||||
32. |
Votes of MembersGeneral |
18 | |||||
33. |
Adjustment of Voting Power |
18 | |||||
34. |
Other Adjustments of Voting Power |
19 | |||||
35. |
Notice |
19 | |||||
36. |
Board Determination Binding |
19 | |||||
37. |
Requirement to Provide Information and Notice |
19 | |||||
38. |
Instrument of Proxy |
20 | |||||
39. |
Representation of Corporate Member |
21 | |||||
40. |
Adjournment of General Meeting |
21 | |||||
41. |
Written Resolutions |
21 | |||||
42. |
Directors Attendance at General Meetings |
22 | |||||
Directors and Officers |
|||||||
43. |
Election of Directors |
22 | |||||
44. |
Classes of Directors |
22 |
|
|
|
|||||
---|---|---|---|---|---|---|---|
45. |
Term of Office of Directors |
23 | |||||
46. |
Alternate Directors |
23 | |||||
47. |
Removal of Directors |
23 | |||||
48. |
Vacancy in the Office of Director |
24 | |||||
49. |
Remuneration of Directors |
24 | |||||
50. |
Defect in Appointment |
24 | |||||
51. |
Directors to Manage Business |
24 | |||||
52. |
Powers of the Board of Directors |
24 | |||||
53. |
Register of Directors and Officers |
25 | |||||
54. |
Appointment of Officers |
25 | |||||
55. |
Appointment of Secretary |
26 | |||||
56. |
Duties of Officers |
26 | |||||
57. |
Remuneration of Officers |
26 | |||||
58. |
Conflicts of Interest |
26 | |||||
59. |
Indemnification and Exculpation of Directors and Officers |
26 | |||||
Meetings of the Board of Directors |
|||||||
60. |
Board Meetings |
27 | |||||
61. |
Notice of Board Meetings |
27 | |||||
62. |
Electronic Participation in Meetings |
27 | |||||
63. |
Quorum at Board Meetings |
28 | |||||
64. |
Board to Continue in Event of Vacancy |
28 | |||||
65. |
Chairman to Preside |
28 | |||||
66. |
Written Resolutions |
28 | |||||
67. |
Validity of Prior Acts of the Board |
28 | |||||
Corporate Records |
|||||||
68. |
Minutes |
28 | |||||
69. |
Place Where Corporate Records Kept |
28 | |||||
70. |
Form and Use of Seal |
29 | |||||
Accounts |
|||||||
71. |
Books of Account |
29 | |||||
72. |
Financial Year End |
29 | |||||
Audits |
|||||||
73. |
Annual Audit |
29 | |||||
74. |
Appointment of Auditor |
29 | |||||
75. |
Remuneration of Auditor |
29 | |||||
76. |
Duties of Auditor |
30 | |||||
77. |
Access to Records |
30 | |||||
78. |
Financial Statements |
30 | |||||
79. |
Distribution of Auditor's Report |
30 | |||||
80. |
Vacancy in the Office of Auditor |
30 | |||||
Business Combinations |
|||||||
81. |
Business Combinations |
30 | |||||
Voluntary Winding-Up and Dissolution |
|||||||
82. |
Winding-Up |
34 | |||||
Changes to Constitution |
|||||||
83. |
Changes to Bye-laws |
34 | |||||
84. |
Changes to the Memorandum of Association |
34 | |||||
85. |
Discontinuance |
34 | |||||
86. |
Amalgamation or Merger |
34 |
Act |
the Companies Act 1981 as amended from time to time; | |
Alternate Director |
an alternate director appointed in accordance with these Bye-laws; |
|
Attribution Percentage |
with respect to a Member, the percentage of the Member's shares that are treated as Controlled Shares of a Tentative 9.5% U.S. Member; |
|
Auditor |
includes an individual , company or partnership; |
|
Board |
the board of directors appointed or elected pursuant to these Bye-laws and acting by resolution in accordance with the Act and these Bye-laws or the directors present at a meeting of directors at which there is a quorum; |
|
Code |
the United States Internal Revenue Code of 1986, as amended; |
|
Company |
the company for which these Bye-laws are approved and confirmed; |
|
Controlled Shares |
all shares of the Company directly, indirectly or constructively owned by a person as determined pursuant to sections 957 and 958 of the Code and the Treasury Regulations promulgated thereunder; |
|
Director |
a director of the Company and shall include an Alternate Director; |
|
Eligible Member |
a Member whose Controlled Shares constitute five percent (5%) or more of the voting power of all issued shares of the Company and who has held such shares for at least two years; |
|
indirect |
when referring to a holder or owner of shares, ownership of shares within the meaning of section 958(a)(2) of the Code; |
|
Member |
the person registered in the Register of Members as the holder of shares in the Company and, when two or more persons are so registered as joint holders of shares, means the person whose name stands first in the Register of Members as one of such joint holders or all of such persons, as the context so requires; |
|
9.5% U.S. Member |
a U.S. Person whose Controlled Shares constitute nine and one-half percent (9.5%) or more of the voting power of all issued shares of the Company or who would otherwise be treated as a "United States Shareholder" as defined by section 951(b) of the Code, if the Company were a controlled foreign corporation as defined in section 957 of the Code and if the ownership threshold under section 951(b) of the Code were nine and one-half percent (9.5%), other than a 9.5% Excluded U.S. Member; |
|
9.5% Excluded U.S. Member |
(i) a person who would, as of the time these Bye-laws become effective, be a 9.5% U.S. Member pursuant to the definition of 9.5% U.S. Member and (ii) a person that is not a U.S. Person, but who would, as of the time these Bye-laws become effective, be a 9.5% U.S. Member pursuant to the definition of 9.5% U.S. Member if such person was a U.S. Person; provided, however, that when determining if a person would be a 9.5% U.S. Member for purposes of this definition, the exclusion from the definition of a 9.5% U.S. Member for 9.5% Excluded U.S. Members shall be disregarded; |
1
notice |
written notice as further provided in these Bye-laws unless otherwise specifically stated; |
|
Officer |
any person appointed by the Board to hold an office in the Company; |
|
Register of Directors and Officers |
the register of directors and officers referred to in these Bye-laws; |
|
Register of Members |
the register of members referred to in these Bye-laws; |
|
Resident Representative |
any person appointed to act as resident representative and includes any deputy or assistant resident representative; |
|
Secretary |
the person appointed to perform any or all of the duties of secretary of the Company and includes any deputy or assistant secretary and any person appointed by the Board to perform any of the duties of the Secretary; |
|
Tentative 9.5% U.S. Member |
a U.S. Person that, but for adjustments or restrictions on exercise of the voting power of shares pursuant to Bye-law 33, would be a 9.5% U.S. Member (other than a 9.5% Excluded U.S. Member); |
|
Treasury Share |
a share of the Company that was or is treated as having been acquired and held by the Company and has been held continuously by the Company since it was so acquired and has not been cancelled; and |
|
U.S. Person |
a "United States person" as defined in Section 957(c) of the Code. |
2
3. Power of the Company to Purchase its Shares
3
4
Notice
of Liability to Forfeiture for Non-Payment of Call
Axovant Sciences Ltd. (the "Company")
You have failed to pay the call of [amount of call] made on the [ ] day of [ ], 20[ ], in respect of the [number] share(s) [number in figures] standing in your name in the Register of Members of the Company, on the [ ] day of [ ], 20[ ], the day appointed for payment of such call. You are hereby notified that unless you pay such call together with interest thereon at the rate of [ ] per annum computed from the said [ ] day of [ ], 20[ ] at the registered office of the Company the share(s) will be liable to be forfeited.
Dated this [ ] day of [ ], 20[ ]
|
|
|
[Signature of Secretary] By Order of the Board |
5
The Company may issue its shares in fractional denominations and deal with such fractions to the same extent as its whole shares and shares in fractional denominations shall have in proportion to the respective fractions represented thereby all of the rights of whole shares including (but without limiting the generality of the foregoing) the right to vote, to receive dividends and distributions and to participate in a winding-up.
6
10. Registered Holder Absolute Owner
The Company shall be entitled to treat the registered holder of any share as the absolute owner thereof and accordingly shall not be bound to recognise any equitable claim or other claim to, or interest in, such share on the part of any other person.
11. Transfer of Registered Shares
Transfer
of a Share or Shares
Axovant Sciences Ltd. (the "Company")
FOR VALUE RECEIVED [amount], I, [name of transferor] hereby sell, assign and transfer unto [transferee] of [address], [number] shares of the Company.
DATED this [ ] day of [ ], 20[ ]
Signed by: | In the presence of: | |
|
|
|
Transferor | Witness | |
|
|
|
Transferee | Witness |
7
12. Transmission of Registered Shares
Transfer
by a Person Becoming Entitled on Death/Bankruptcy of a Member
Axovant Sciences Ltd. (the "Company")
I/We, having become entitled in consequence of the [death/bankruptcy] of [name and address of deceased/bankrupt Member] to [number] share(s) standing in the Register of Members of the Company in the name of the said [name of deceased/bankrupt Member] instead of being registered myself/ourselves, elect to have [name of transferee] (the "Transferee") registered as a transferee of such share(s) and I/we do hereby accordingly transfer the said share(s) to the Transferee to hold the same unto the Transferee, his or her executors, administrators and assigns, subject to the conditions on which the same were held at the time of the execution hereof; and the Transferee does hereby agree to take the said share(s) subject to the same conditions.
DATED this [ ] day of [ ], 20[ ]
Signed by: | In the presence of: | |
|
|
|
Transferor | Witness | |
|
|
|
Transferee | Witness |
8
14. Variation of Rights Attaching to Shares
9
16. Power to Set Aside Profits
The Board may, before declaring a dividend, set aside out of the surplus or profits of the Company, such amount as it thinks proper as a reserve to be used to meet contingencies or for equalising dividends or for any other purpose.
10
The annual general meeting of the Company shall be held in each year (other than the year of incorporation) at such time and place as the Principal Executive Officer or the Chairman (if any) or any two Directors or any Director and the Secretary or the Board shall appoint.
The Principal Executive Officer or the Chairman (if any) or any two Directors or any Director and the Secretary or the Board may convene a special general meeting whenever in their judgment such a meeting is necessary.
21. Requisitioned General Meetings
The Board shall, on the requisition of Members holding at the date of the deposit of the requisition not less than one-tenth of such of the paid-up share capital of the Company as at the date of the deposit carries the right to vote at general meetings, forthwith proceed to convene a special general meeting and the provisions of the Act shall apply.
11
24. Notice of Nominations and Member Business
12
called for a date that is not less than 30 days before or after such anniversary then to be timely such notice must be received at the registered office of the Company not later than ten days following the earlier of the date on which notice of the annual general meeting was posted to shareholders or the date on which public disclosure of the date of the annual general meeting was made. In no event shall the public announcement of an adjournment or postponement of an annual general meeting commence a new time period (or extend any time period) for the giving of a Member's notice as described above. For purposes of Bye-laws 24.1(b) and 24.2, "public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, the Associated Press, PR Newswire, Businesswire, Bloomberg or any comparable news service in the United States or in a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934;
13
14
25. Postponement or Cancellation of General Meeting
The Secretary may, and on instruction from the Chairman or the Principal Executive Officer shall, postpone or cancel any general meeting called in accordance with these Bye-laws (other than a meeting requisitioned under these Bye-laws) provided that notice of postponement or cancellation is given to each Member before the time for such meeting. Fresh notice of the date, time and place for the postponed or cancelled meeting shall be given to the Members in accordance with these Bye-laws.
26. Electronic Participation and Security at General Meetings
15
27. Quorum at General Meetings
28. Chairman to Preside at General Meetings
Unless otherwise agreed by a majority of those attending and entitled to vote thereat, the Chairman, if there be one, and if not the Principal Executive Officer, if there be one, shall act as chairman at all general meetings at which such person is present. In their absence, a chairman shall be appointed or elected by those present at the meeting and entitled to vote.
16
majority, or lost, and an entry to that effect in a book containing the minutes of the proceedings of the Company shall, subject to these Bye-laws, be conclusive evidence of that fact.
30. Power to Demand a Vote on a Poll
31. Voting by Joint Holders of Shares
In the case of joint holders, the vote of the senior who tenders a vote (whether in person or by proxy) shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members.
17
Subject to the provisions of Bye-laws 33 and 34 below, and subject to any rights and restrictions for the time being attached to any class or classes or series of shares, every Member shall have one vote for each share carrying the right to vote on the matter in question of which he is the holder. Notwithstanding any other provisions of these Bye-laws, all determinations in these Bye-laws that are made by or subject to a vote or approval of Members shall be based upon the voting power of such Members' shares as determined pursuant to Bye-laws 33 and 34.
33. Adjustment of Voting Power
18
34. Other Adjustments of Voting Power
In addition to the provisions of Bye-law 33, any shares shall not carry any right to vote to the extent that the Board determines that it is necessary that such shares should not carry the right to vote in order to avoid adverse tax, legal or regulatory consequences to the Company, any subsidiary of the Company, or any other direct or indirect holder of shares or its affiliates, provided that no adjustment pursuant to this sentence shall cause any person to become a 9.5% U.S. Member; and provided, further, that the Board will use reasonable efforts to afford equal treatment to similarly situated Members to the extent possible under the circumstances.
Prior to the meeting at which Members shall vote on any matter (or prior to any vote in the case of notification to Members specified in item (3) of this Bye-law 35), the Board may, in its sole discretion, (1) retain the services of an internationally recognized accounting firm or organization with comparable professional capabilities in order to assist the Company in applying the principles of Bye-laws 33 and 34, (2) obtain from such firm or organization a statement describing the information obtained and procedures followed and setting forth the determinations made with respect to Bye-laws 33 and 34, and (3) notify in writing or orally each Member of the voting power conferred by its shares determined in accordance with Bye-laws 33 and 34. For the avoidance of doubt, any failure by the Board to take any of the actions described in this Bye-law 35 shall not invalidate any votes cast or the proceedings at the meeting.
36. Board Determination Binding
Any determination by the Board as to any adjustments or eliminations of voting power of any shares made pursuant to Bye-laws 33 and 34 shall be final and binding and any vote taken based on such determination shall not be capable of being challenged solely on the basis of such determination.
37. Requirement to Provide Information and Notice
19
Proxy
Axovant Sciences Ltd. (the "Company")
I/We, [insert names here], being a Member of the Company with [number] shares, HEREBY APPOINT [name] of [address] or failing him, [name] of [address] to be my/our proxy to vote for me/us at the meeting of the Members to be held on the [ ] day of [ ], 20[ ] and at any adjournment thereof. (Any restrictions on voting to be inserted here.)
Signed this [ ] day of [ ], 20[ ] | ||
Member(s) |
|
|
or (b) such telephonic, electronic or other means as may be approved by the Board from time to time.
20
39. Representation of Corporate Member
40. Adjournment of General Meeting
21
may be (provided that (i) any such resolution shall be valid only if the signature of the last Member to sign is affixed outside the United States (unless the Board dispenses with this requirement), and (ii) the Board may declare such resolution to be invalid if the Board determines that the use of a resolution in writing would result in a non-de minimis adverse tax, regulatory or legal consequence to the Company, any subsidiary of the Company, or any direct or indirect holder of shares or its affiliates), and any reference in any Bye-law to a meeting at which a resolution is passed or to Members voting in favour of a resolution shall be construed accordingly.
42. Directors Attendance at General Meetings
The Directors shall be entitled to receive notice of, attend and be heard at any general meeting.
The Directors shall be divided into three classes designated Class I, Class II, and Class III. Each class of Directors
shall consist, as nearly as possible, of one third of the total number of Directors constituting the entire Board.
There is only one class of Directors of the Company.
22
45. Term of Office of Directors
The Class I Directors
Each
Director
shall
initially
hold office for a one year term
, the Class II Directors shall initially hold office for a two
year term and the Class III Directors shall initially hold office for a three year term. At each succeeding annual general meeting, successors to the class of Directors whose term expires at
that annual general meeting shall be elected for a three year term. If the number of Directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number
of Directors in each class as nearly equal as possible, and any Director of any class elected to fill a vacancy shall hold office for a term that shall coincide with the remaining term of the other
Directors of that class, but in no case shall a decrease in the number of Directors shorten the term of any Director then in office. A Director shall hold office
until the
next
annual general meeting
for the year in which his term
expires
, or if, sooner, the next special general meeting called for the purpose of removing such director and
electing a new slate of Directors
, subject to his office being vacated
sooner
pursuant to Bye-law 48.
23
48. Vacancy in the Office of Director
(a) |
is removed from office pursuant to these Bye-laws or is prohibited from being a Director by law; | |
(b) |
is or becomes bankrupt, or makes any arrangement or composition with his creditors generally; |
|
(c) |
is or becomes of unsound mind or dies;
|
|
(d) |
|
|
(e) |
is not re-elected at an annual general meeting or at a special general meeting called for the purpose of electing a new slate of Directors . |
The remuneration (if any) of the Directors shall be determined by the Board or a committee thereof and shall be deemed to accrue from day to day. The Directors may also be paid all travel, hotel and other expenses properly incurred by them in attending and returning from the meetings of the Board, any committee appointed by the Board, general meetings, or in connection with the business of the Company or their duties as Directors generally.
All acts done in good faith by the Board, any Director, a member of a committee appointed by the Board, any person to whom the Board may have delegated any of its powers shall, or any person acting as a Director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any Director or person acting as aforesaid, or that he was, or any of them were, disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director or act in the relevant capacity.
51. Directors to Manage Business
The business of the Company shall be managed and conducted by the Board. In managing the business of the Company, the Board may exercise all such powers of the Company as are not, by the Act or by these Bye-laws, required to be exercised by the Company in general meeting.
52. Powers of the Board of Directors
The Board may:
24
53. Register of Directors and Officers
The Board shall cause to be kept in one or more books at the registered office of the Company a Register of Directors and Officers and shall enter therein the particulars required by the Act.
The Board may appoint such officers (who may or may not be Directors) as the Board may determine for such terms as the Board deems fit.
25
The Secretary shall be appointed by the Board from time to time for such terms as the Board deems fit.
The Officers shall have such powers and perform such duties in the management, business and affairs of the Company as may be delegated to them by the Board from time to time.
The Officers shall receive such remuneration as the Board may determine.
59. Indemnification and Exculpation of Directors and Officers
26
their respective offices or trusts, and no indemnified party shall be answerable for the acts, receipts, neglects or defaults of the others of them or for joining in any receipts for the sake of conformity, or for any bankers or other persons with whom any moneys or effects belonging to the Company shall or may be lodged or deposited for safe custody, or for insufficiency or deficiency of any security upon which any moneys of or belonging to the Company shall be placed out on or invested, or for any other loss, misfortune or damage which may happen in the execution of their respective offices or trusts, or in relation thereto, PROVIDED THAT this indemnity shall not extend to any matter in respect of any fraud or dishonesty to the extent prohibited by the Act in relation to the Company which may attach to any of the indemnified parties. Each Member agrees to waive any claim or right of action such Member might have, whether individually or by or in the right of the Company, against any Director or Officer on account of any action taken by such Director or Officer, or the failure of such Director or Officer to take any action in the performance of his duties with or for the Company or any subsidiary thereof, PROVIDED THAT such waiver shall not extend to any matter in respect of any fraud or dishonesty in relation to the Company which may attach to such Director or Officer.
MEETINGS OF THE BOARD OF DIRECTORS
The Board may meet for the transaction of business, adjourn, and otherwise regulate its meetings as it sees fit. A resolution put to the vote at a meeting of the Board shall be carried by the affirmative votes of a majority of the votes cast and in the case of an equality of votes the resolution shall fail.
The Chairman or the Principal Executive Officer or a majority of the Directors then in office may, and the Secretary on the requisition of a Director shall, at any time summon a meeting of the Board. Notice of a meeting of the Board shall be deemed to be duly given to a Director if it is given to such Director verbally (including in person or by telephone) or otherwise communicated or sent to such Director by post, electronic means or other mode of representing words in a visible form at such Director's last known address or in accordance with any other instructions given by such Director to the Company for this purpose at least 48 hours prior to such Board meeting, unless each Director attends or gives his prior written consent to the meeting being held on such shorter notice.
62. Electronic Participation in Meetings
Directors may participate in any meeting by such telephonic, electronic, or other communications facilities or means as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting.
27
The quorum necessary for the transaction of business at a meeting of the Board shall be a majority of the Directors then in office.
64. Board to Continue in the Event of Vacancy
The Board may act notwithstanding any vacancy in its number but, if and so long as its number is reduced below the number fixed by these Bye-laws as the quorum necessary for the transaction of business at meetings of the Board, the continuing Directors or Director may act for the purpose of (i) summoning a general meeting; or (ii) preserving the assets of the Company.
Unless otherwise agreed by a majority of the Directors attending , the Chairman, if there be one, shall act as chairman at all meetings of the Board at which such person is present. In his absence a chairman shall be appointed or elected by the Directors present at the meeting.
A resolution signed by all the Directors, which may be in counterparts, shall be as valid as if it had been passed at a meeting of the Board duly called and constituted, such resolution to be effective on the date on which the last Director signs the resolution, provided, that (i) any such resolution shall be valid only if the signature of the last Director to sign is affixed outside the United States (unless the Board dispenses with this requirement), and (ii) the Board may declare such resolution to be invalid if the Board determines that the use of a resolution in writing would result in a non-de minimis adverse tax, regulatory or legal consequence to the Company, any subsidiary of the Company, or any direct or indirect holder of shares or its affiliates. For the purposes of this Bye-law only, "the Directors" shall not include an Alternate Director.
67. Validity of Prior Acts of the Board
No regulation or alteration to these Bye-laws made by the Company in general meeting shall invalidate any prior act of the Board which would have been valid if that regulation or alteration had not been made.
The Board shall cause minutes to be duly entered in books provided for the purpose:
69. Place Where Corporate Records Kept
Minutes prepared in accordance with the Act and these Bye-laws shall be kept by the Secretary at the registered office of the Company.
28
The financial year end of the Company may be determined by resolution of the Board and failing such resolution shall be 31 st March in each year.
Subject to any rights to waive laying of accounts or appointment of an Auditor pursuant to the Act, the accounts of the Company shall be audited at least once in every year.
The remuneration of the Auditor shall be fixed by the Company in general meeting or in such manner as the Members may determine. In the case of an Auditor appointed pursuant to Bye-law 80, the remuneration of the Auditor shall be fixed by the Board.
29
The Auditor shall at all reasonable times have access to all books kept by the Company and to all accounts and vouchers relating thereto, and the Auditor may call on the Directors or Officers of the Company for any information in their possession relating to the books or affairs of the Company.
Subject to any rights to waive laying of accounts pursuant to the Act, financial statements as required by the Act shall be laid before the Members in general meeting. A resolution in writing made in accordance with Bye-law 41 receiving, accepting, adopting, approving or otherwise acknowledging financial statements shall be deemed to be the laying of such statements before the Members in general meeting.
79. Distribution of Auditor's report
The report of the Auditor shall be submitted to the Members in general meeting.
80. Vacancy in the Office of Auditor
If the office of Auditor becomes vacant by the resignation or death or the Auditor, or by the Auditor becoming incapable of acting by reason of illness or other disability at a time when the Auditor's services are required, the vacancy thereby created shall be filled in accordance with the Act.
30
The Company shall give not less than 20 days notice to all Interested Shareholders prior to the consummation of any of the transactions described in subparagraphs (a) or (b) of the second sentence of this paragraph (ii).
31
32
the issued and outstanding voting shares of any company, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary; provided that notwithstanding the foregoing, such presumption of control shall not apply where such person holds voting shares, in good faith and not for the purpose of circumventing this provision, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity;
33
VOLUNTARY WINDING-UP AND DISSOLUTION
If the Company shall be wound up the liquidator may, with the sanction of a resolution of the Members, divide amongst the Members in specie or in kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may, for such purpose, set such value as he deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like sanction, vest the whole or any part of such assets in the trustees upon such trusts for the benefit of the Members as the liquidator shall think fit, but so that no Member shall be compelled to accept any shares or other securities or assets whereon there is any liability.
84. Changes to the Memorandum of Association
No alteration or amendment to the Memorandum of Association may be made save in accordance with the Act and until same has been approved by a resolution of the
Board and by a resolution of the Members
including the affirmative vote of not less than 66
2
/
3
% of the votes attaching to all shares in issue
.
The Board may exercise all the powers of the Company to discontinue the Company to a jurisdiction outside Bermuda pursuant to the Act.
Any resolution proposed for consideration at any general meeting to approve the amalgamation or merger of the Company with any other company, wherever incorporated, shall (other than in respect of any amalgamation or merger constituting a Business Combination to which the restrictions in Bye-law 81 shall apply) require the approval of a simple majority of votes cast at such meeting and the quorum for such meeting shall be that required in Bye-law 27 and a poll may be demanded in respect of such resolution in accordance with the provisions of Bye-law 30.
34
SPECIAL GENERAL MEETING OF SHAREHOLDERS OF AXOVANT SCIENCES LTD. December 21, 2017 GO GREEN e-Consent makes it easy to go paperless. With e-Consent, you can quickly access your proxy material, statements and other eligible documents online, while reducing costs, clutter and paper waste. Enroll today via www.astfinancial.com to enjoy online access. Important Notice Regarding the Availability of Proxy Materials for the Shareholders Meeting to Be Held on December 21, 2017 at 10:00 a.m. local time at . The Proxy Statement is available at www.axovant.com/investors/proxy-materials Please sign, date and mail your proxy card in the envelope provided as soon as possible. Please detach along perforated line and mail in the envelope provided. 00033330330000000000 3 122117 changes to the registered name(s) on the account may not be submitted via Note: Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should sign. When signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person. THE BOARD OF DIRECTORS RECOMENDS A VOTE FOR EACH OF THE PROPOSALS. PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE x FOR AGAINST ABSTAIN 1. To approve an amendment to our Amended and Restated Bye-laws to declassify the Board of Directors. 2. To approve an amendment to our Amended and Restated Bye-laws to modify shareholder proposal and nomination procedures. 3. To approve an amendment to our Amended and Restated Bye-laws to modify certain supermajority voting requirements. 4. To approve an amendment to our Amended and Restated Bye-laws to permit Axovants Principal Executive Officer to summon meetings of the Board of Directors. 5. To approve an amendment to our Amended and Restated Bye-laws to modify certain director removal and vacancy requirements. 6. To approve an amendment to our Amended and Restated Bye-laws to revise certain other provisions in our Amended and Restated Bye-laws. 7. To conduct any other business properly brought before the meeting. In their discretion, the proxies are authorized to vote upon such other business as may properly come before the meeting. This proxy when properly executed will be voted as directed herein by the undersigned shareholder. If no direction is made, this proxy will be voted FOR each proposal and as the proxyholders deem advisable on such other matters as may properly come before the meeting and any postponements and adjournments thereof. To change the address on your account, please check the box at right and indicate your new address in the address space above. Please note that this method. Signature of Shareholder Date: Signature of ShareholderDate:
- 0 AXOVANT SCIENCES LTD. Clarendon House 2 Church Street Hamilton HM 11 Bermuda Proxy for Special General Meeting of Shareholders To Be Held On December 21, 2017 Solicited on Behalf of the Board of Directors The undersigned hereby appoints Stephen Mohr and Sheba Raza, and each of them, with full power of substitution and power to act alone, as proxies to vote all the Common Shares which the undersigned would be entitled to vote if personally present and acting at the Special General Meeting of Shareholders of Axovant Sciences Ltd., to be held at _________________________________________ on December 21, 2017 at 10:00 a.m. local time, and at any adjournments or postponements thereof, as follows: (Continued and to be signed on the reverse side.) 14475 1.1
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