UNITED STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 14A
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Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
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Filed by the Registrant x
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Filed by a Party other than the Registrant ¨
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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x
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material under §240.14a-12
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Bionik
Laboratories Corp.
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(Name of Registrant as Specified In Its Charter)
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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Payment of Filing Fee (Check the appropriate box):
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x
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title of each class of securities to which transaction applies:
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Aggregate number of securities to which transaction applies:
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
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(4)
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Proposed maximum aggregate value of transaction:
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(5)
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Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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(1)
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Amount Previously Paid:
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(2)
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Form, Schedule or Registration Statement No.:
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(3)
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Filing Party:
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Date Filed:
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BIONIK LABORATORIES CORP.
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON DECEMBER 17, 2021
The annual meeting of the stockholders (“Annual Meeting”)
of Bionik Laboratories Corp. (“we,” “our,” “us,” “Bionik” or the “Company”)
will be held at the offices of the Company at 80 Coolidge Hill Road, Watertown, Massachusetts 02472, on Friday, December 17, 2021 at 9:00
a.m., Eastern Time. The Annual Meeting will be held for the following purposes:
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(1)
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To elect seven directors to serve until the next annual meeting of stockholders and until their successors
are elected and qualified;
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(2)
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To consider and vote on an advisory (non-binding) resolution to approve the compensation of our named
executive officers;
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(3)
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To consider and vote on an advisory (non-binding) proposal to determine the frequency with which shareholders
of our company shall be entitled to vote on the compensation of our named executive officers;
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(4)
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To ratify the appointment of MNP LLP as our independent registered public accounting firm for the fiscal
year ending March 31, 2022; and
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(5)
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To transact such other business as may properly come before the Annual Meeting or any adjournment or postponement
thereof.
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These items of business are more fully described in the proxy statement
accompanying this notice. The Board of Directors fixed the close of business on November 12, 2021 as the record date for the determination
of the holders of our common stock and Exchangeable Shares entitled to notice of, and to vote at, the Annual Meeting. Accordingly, only
stockholders of record on our books at the close of business on that date will be entitled to notice of and to vote at the Annual Meeting
and any adjournment and postponement thereof.
Stockholders are cordially
invited to attend the Annual Meeting. If you wish to vote shares held in your name at the Annual Meeting, please bring your proxy card
or voting instruction form (for holders of Exchangeable Shares), and picture identification to the Annual Meeting. Please note that Bionik
shares may only be voted by the record owner of the shares, so the holders of Bionik shares held in the name of an intermediary and who
wish to vote those shares in person at the Annual Meeting must obtain a valid proxy from the intermediary in order to vote the shares
in person at the Annual Meeting. We strongly encourage all stockholders, for their own well-being and to reduce the risk of aiding the
spread of the current coronavirus (“COVID-19”), to vote their shares prior to the Annual Meeting. Further details on
how to vote by internet or by mail are set out in the proxy statement.
We intend to hold the Annual
Meeting in person at our United States corporate headquarters. However, we are actively monitoring the COVID-19 global pandemic and are
sensitive to the public health and travel concerns our stockholders and employees may have and the protocols that governments may impose.
If you elect to attend the Annual Meeting in person, we ask that you follow recommended guidance, mandates and applicable executive orders
from federal and state authorities, particularly as they relate to social distancing and attendance at public gatherings. If you are not
feeling well, have had close contact with someone who has tested positive for, or think you may have been exposed to, COVID-19, we ask
that you vote by proxy for the meeting. We will require all attendees to comply with the Company’s policies in place at the time
of the meeting, which may include but not be limited to temperature check, wearing a mask and maintaining six-foot social distance. In
the event it is not possible or advisable to hold the Annual Meeting in person, we will publicly announce alternative arrangements for
the Annual Meeting as promptly as practicable, which may include holding the Annual Meeting solely by means of remote communication. If
we take this step, we will announce the decision to do so in advance by, among other actions, issuing a press release and posting such
information on our website.
Your vote is extremely important.
We appreciate you taking the time to vote promptly. After reading the proxy statement, please vote, at your earliest convenience, by completing,
signing and returning your proxy card or voting instruction form (for holders of Exchangeable Shares) as described more fully in the accompanying
proxy statement. If you decide to attend the Annual Meeting and would prefer to vote by ballot, your proxy or voting instructions, as
the case may be, will be revoked automatically and only your vote at the Annual Meeting will be counted.
YOUR SHARES CANNOT BE VOTED
UNLESS YOU VOTE BY: (i) A PAPER PROXY CARD, COMPLETED, SIGNED AND RETURNED BY MAIL, OR BY INTERNET, IF YOU ARE A HOLDER OF OUR
COMMON STOCK, (ii) A PAPER VOTING INSTRUCTION FORM PROVIDED TO THE TRUSTEE OF OUR SPECIAL VOTING PREFERRED STOCK, COMPLETED,
SIGNED AND RETURNED BY MAIL TO THE TRUSTEE, IF YOU ARE A HOLDER OF OUR EXCHANGEABLE SHARES, OR (iii) ATTENDING THE ANNUAL MEETING
AND VOTING IN PERSON.
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By Order of the Board of Directors
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/s/ Rich Russo, Jr.
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Chief Financial Officer and Interim Chief Executive Officer
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Watertown, Massachusetts
November 17, 2021
BIONIK LABORATORIES CORP.
PROXY STATEMENT FOR THE
ANNUAL MEETING OF STOCKHOLDERS
December 17, 2021
This proxy statement is furnished in connection with the solicitation
of proxies by the Board of Directors (the “Board”) of Bionik Laboratories Corp. (“we,” “our,” “us,”
“Bionik” or the “Company”), to be voted at the annual meeting of stockholders (the “Annual Meeting”)
to be held at the offices of the Company at 80 Coolidge Hill Road, Watertown, Massachusetts 02472 on December 17, 2021 at 9:00 a.m., Eastern
Time, or at any adjournment or postponement of the Annual Meeting.
This proxy statement and form of proxy will first be sent to stockholders on or about November 17, 2021.
The cost of the Annual Meeting,
including the cost of preparing and delivering this proxy statement and proxy, will be borne by us. We may use the services of our directors,
officers, employees and contractors to solicit proxies, personally or by telephone, but at no additional salary or compensation. We will
also request banks, brokers and others who hold our voting securities in nominee names to distribute proxy soliciting materials to beneficial
owners and will reimburse such nominees for reasonable out-of-pocket expenses which they may incur in so doing.
We intend to hold the Annual
Meeting in person at our United States corporate headquarters. However, we are actively monitoring the current coronavirus (“COVID-19”)
global pandemic and are sensitive to the public health and travel concerns our stockholders and employees may have and the protocols that
governments may impose. If you elect to attend the Annual Meeting in person, we ask that you follow recommended guidance, mandates and
applicable executive orders from federal and state authorities, particularly as they relate to social distancing and attendance at public
gatherings. If you are not feeling well, have had close contact with someone who has tested positive for, or think you may have been exposed
to, COVID-19, we ask that you vote by proxy for the meeting. We will require all attendees to comply with the Company’s policies
in place at the time of the meeting, which may include but not be limited to temperature check, wearing a mask and maintaining six-foot
social distance.
In the event it is not possible
or advisable to hold the Annual Meeting in person, we will publicly announce alternative arrangements for the Annual Meeting as promptly
as practicable, which may include holding the Annual Meeting solely by means of remote communication. If we take this step, we will announce
the decision to do so in advance by, among other actions, issuing a press release and posting such information on our website.
Stockholders Entitled to Vote
The holders of record of our common stock, $0.001 par value per share
(“Common Stock”), and the holder of the sole share of the Special Voting Preferred Stock, $0.001 par value per share (the
“Special Voting Preferred Stock”), as of November 12, 2021 (the “Record Date”) are entitled to notice of and to
vote at the Annual Meeting. The holder of the Special Voting Preferred Stock holds the share as trustee for the holders of exchangeable
shares (“Exchangeable Shares”) of our indirect subsidiary Bionik Laboratories Inc. (“Bionik Canada”) as set forth
in the Voting and Exchange Trust Agreement among the Company, Bionik Canada and Computershare Trust Company of Canada (the “Trustee”),
dated February 26, 2015 (the “Trust Agreement”). The Exchangeable Shares were issued in connection with the acquisition by
us of Bionik Canada on February 26, 2015. The Exchangeable Shares have substantially the same economic and voting rights as our Common
Stock, and holders are entitled to instruct the Trustee as to how to vote their Exchangeable Shares or they may attend the Annual Meeting
and exercise their vote personally.
Each share of Common Stock
is entitled to one vote. The one share of Special Voting Preferred Stock is entitled to an aggregate number of votes equal to the number
of Exchangeable Shares issued and outstanding as of the Record Date. However, the Trustee will exercise each vote attached to the Special
Voting Preferred Stock only on the basis of instructions received from the holders of record of the Exchangeable Shares. In the absence
of instructions from a holder as to voting, the Trustee will not exercise any voting rights with respect to the Exchangeable Shares held
by such holder. The holders of the Common Stock and the holder of the Special Voting Preferred Stock vote together as a single class.
Voting Your Shares
Common Stock
Holders of our Common Stock
may elect to vote in one of three methods:
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By Mail – You may vote your shares by signing and returning the enclosed proxy card.
If you vote by proxy card, your “proxy” (each or any of the individuals named on the proxy card) will vote your shares as
you instruct on the proxy card. If you sign and return the proxy card, but do not give instructions on how to vote your shares, your shares
will be voted as recommended by the Board, as described below.
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By Internet – You may vote your shares by Internet by going to www.vstocktransfer.com/proxy.
Follow the instructions included in the proxy card to vote by internet.
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In Person – You may attend the Annual Meeting and vote in person. We will give you a
ballot when you arrive. If your stock is held in the name of your broker, bank or another nominee (a “Nominee”), you must
present a proxy from that Nominee in order to verify that the Nominee has not voted your shares on your behalf.
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If your shares are held in
“street name” (held in the name of a bank, broker or other holder of record), you will receive instructions from the holder
of record. You must follow the instructions of the holder of record in order for your shares to be voted. Internet voting also will be
offered to stockholders owning shares through certain banks and brokers. If your shares are not registered in your own name and you plan
to vote your shares in person at the Annual Meeting, you should contact your broker or agent to obtain a legal proxy or broker’s
proxy card and bring it to the Annual Meeting in order to vote.
Exchangeable Shares
Holders of Exchangeable Shares
are receiving these proxy materials in accordance with the provisions of the Exchangeable Shares and the Trust Agreement. If you are a
holder of record of Exchangeable Shares, there are two ways to vote your Exchangeable Shares:
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By Mail – You may vote by signing and returning the enclosed voting instruction
form to the Trustee. This form permits you to instruct the Trustee to vote at the Annual Meeting through its share of the Special Voting
Preferred Stock. The Trustee must receive your voting instruction by 5:00 p.m. (Toronto Time) on December 16, 2021, at the address indicated
on the voting instruction form or for an adjourned meeting not less than 48 hours before the time set for the holding of the adjourned
meeting. This will give the Trustee time to tabulate the voting instructions and vote on your behalf.
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In Person – If you wish to attend the Annual Meeting and vote in person rather than
have the Trustee exercise voting rights on your behalf, you may instruct the Trustee (by following the procedures set forth in the enclosed
voting instruction form) to give you or your designee a proxy to exercise the voting rights personally at the Annual Meeting. You may
also instruct the Trustee to give a proxy to a designated representative of Bionik to exercise such voting rights.
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Only holders of Exchangeable
Shares whose names appear on the records of Bionik as the registered holders of Exchangeable Shares on the Record Date are entitled to
instruct the Trustee as to how to exercise voting rights in respect of their Exchangeable Shares at the Annual Meeting. If on the Record
Date your Exchangeable Shares were held, not in your name, but rather in the name of a Nominee, then you are the beneficial owner of shares
held in “street name” and these proxy materials, if you have received them, are being forwarded to you by that Nominee. The
Nominee holding your account is considered to be the stockholder of record for purposes of instructing the Trustee as to how to vote your
Exchangeable Shares. As a beneficial owner, you have the right to direct your Nominee on how to instruct the Trustee to vote your Exchangeable
Shares.
Quorum and Votes Required to Approve Proposals
On the Record Date, there
were a total of 5,790,920 shares of Common Stock and 112,440 Exchangeable Shares outstanding. The presence in person or by proxy of a
majority of the outstanding shares of Common Stock and Exchangeable Shares entitled to vote at the Annual Meeting will constitute a quorum
for the transaction of business at the Annual Meeting.
Executed proxies that contain
no instructions will be voted:
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FOR each of the individuals nominated to be a director;
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FOR the resolution approving the compensation of our named executive officers as disclosed in
this proxy statement;
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To hold the advisory vote on the compensation of our named executive officers every THREE YEARS;
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FOR the ratification of appointment of MNP LLP as our independent registered public accounting firm for the fiscal year
ending March 31, 2022; and
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In accordance with the judgment of the persons named as proxies in the form of proxy on such other
business or matters which may properly come before the Annual Meeting.
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Other than the matters set forth in the Notice
of Annual Meeting accompanying this proxy statement, we know of no matters to be brought before the Annual Meeting.
Brokers and other nominees
who hold Common Stock in “street name” and do not receive instructions from their clients on how to vote on a particular proposal
are permitted to vote on routine proposals but not on non-routine proposals. The absence of votes from brokers on non-routine proposals
are referred to as broker non-votes. Proposals such as the ratification of the independent registered public accounting firm are considered
routine. The election of directors is non-routine. Thus, if stockholders do not give their broker or nominee specific instructions, their
shares may not be voted for the election of directors. Abstentions and broker non-votes will be counted as present for purposes of establishing
a quorum.
There are different voting
requirements for the various proposals:
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Directors are elected by a plurality of votes cast at the Annual Meeting (assuming a quorum is present).
Consequently, any shares not voted at the Annual Meeting, whether due to abstentions, broker non-votes or otherwise, will have no impact
on the election of directors.
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The advisory vote on the compensation of our named executive officers as described in this proxy statement
(“Say-on-Pay”) will be approved if it receives the affirmative vote of a majority of the votes cast on the proposal at the
annual meeting. With regard to this resolution, abstentions and broker non-votes will have no impact on the approval of our executive
compensation.
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The frequency of Say-on-Pay receiving the highest number of votes (i.e., one year, two years or three
years) will be approved. Abstentions and broker non-votes will have no effect on this resolution.
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The ratification of the appointment of our independent registered public accountant will be approved if
it receives the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at the Annual
Meeting and entitled to vote. An abstention will count as a vote “against” this proposal. The ratification of the appointment
of our independent registered public accountant is a routine proposal on which a broker or other nominee is generally empowered to vote
in the absence of voting instructions from the beneficial owner, so broker non-votes are unlikely to result from this proposal.
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Revocation of Proxy or Voting Instruction Form
If you are a holder of Common
Stock, you may revoke your proxy at any time before the proxy is voted at the Annual Meeting. This can be done by either submitting another
properly completed proxy (either card or through the internet) with a later date, sending a written notice of revocation to the Company
with a later date or by attending the Annual Meeting and voting in person. You should be aware that simply attending the Annual Meeting
will not automatically revoke your previously submitted proxy; rather you must notify a Company representative at the Annual Meeting of
your desire to revoke your proxy and vote in person. Written notice revoking a proxy should be sent to the tabulation agent or to Rich
Russo Jr., Chief Financial Officer and Interim Chief Executive Officer, at 80 Coolidge Hill Road, Watertown, Massachusetts 02472.
If you are a holder of Exchangeable Shares, you have the right to revoke
any instructions previously given to the Trustee by giving written notice of revocation of such instructions to the Trustee or by executing
and delivering to the Trustee a later-dated voting instruction by 5:00 p.m., Eastern time on December 16, 2021, at the address indicated
on the voting instruction form or for an adjourned meeting not less than 48 hours before the time set for the holding of the adjourned
meeting.
YOUR VOTE IS IMPORTANT. PLEASE RETURN YOUR
PROXY OR VOTING INSTRUCTION FORM BY MAIL PROMPTLY SO YOUR SHARES CAN BE REPRESENTED, EVEN IF YOU PLAN TO ATTEND THE MEETING IN PERSON.
ELECTION OF DIRECTORS
(Proposal 1 on Proxy Card and Voting Instruction
Form)
The Board currently consists
of seven members. All of such members have been nominated to serve until the next annual meeting of stockholders and until their successors
are duly elected and qualified. The seven nominees listed below have indicated that they are willing and able to serve as directors. If
any of the nominees becomes unable or unwilling to serve, the accompanying proxy may be voted for the election of such other person as
shall be designated by the Board.
Directors
The following table reflects
our directors nominated for election to the Board as of the date of this proxy statement:
Name
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Age
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Position
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Andre Auberton-Herve
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59
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Chairman of the Board
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Remi Gaston -Dreyfus
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65
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Director
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P. Gerald Malone
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70
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Director
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Joseph Martin
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73
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Director
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Charles Matine
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62
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Director
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Audrey Thevenon
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43
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Director
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Michal Prywata
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29
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Director
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The following information
summarizes the business experience of our directors:
Andre
Auberton-Herve: Chairman of the Board. Mr. Auberton-Herve has been the Chairman of the Company’s Board of Directors
since January 24, 2018. Mr. Auberton-Herve brings substantial leadership experience within strategic, operational, and financial
activities from past roles. Mr. Auberton-Herve is the founder of 4A Consulting & Engineering,
which provides strategic advice and consulting services with respect to renewable energy and digital innovation and has served as its
President and CEO since its founding in July 2015. 4A Consulting provided consulting services to the Company from February 2017
until Mr. Auberton-Herve’s appointment as Chairman. Mr. Auberton-Herve co-founded Soitec SA, a publicly traded company
on the Euronext Paris stock exchange which designs and manufactures innovative semiconductor materials which are used in many smartphone
platforms and computing activities, where he was President and CEO from July 1992 until January 2015, then Chairman and
Chairman Emeritus since September 2015. While at Soitec SA, Mr. Auberton-Herve was responsible for overseeing the strategic,
operational and financial activities of the company. He built an international high-tech group in ten countries and five manufacturing
facilities in Europe, Asia and the U.S. Mr. Auberton-Herve also led the company through its listing on Euronext in 1999, raising
significant amounts of capital since then with some of the world’s largest investment banks. He has been nominated Knight of the
Legion of Honor and Knight of the Order of Merit in France. Mr. Auberton-Herve holds a Doctorate degree in Semiconductor Physics
and a Master’s degree in Materials Science from Ecole Centrale de Lyon in France. The Company believes that Mr. Auberton-Herve
is qualified as a board member of the Company because of his substantial strategic, operational and leadership experience.
Remi
Gaston-Dreyfus: Director. Mr. Gaston-Dreyfus has been a director of the Company since September 1, 2017. Since
2007, Mr. Gaston-Dreyfus has been the CEO and Founder of RGD Investissements S.A.S. in Paris, a developer of and investor in real
estate assets in Paris. Prior to 2007, Mr. Gaston-Dreyfus was a shareholder, Chairman and CEO of the Photo-Journalism group A.G.I.
(including Gamma Press Agency). Mr. Gaston-Dreyfus was a co-founder of a Parisian law firm in 1984 and was a French lawyer until
1992. We believe that Mr. Gaston-Dreyfus is qualified to serve as a member of the Board of Directors due to his experience as an
entrepreneur and his legal training.
Gerald
Malone: Director. Mr. Malone has been a director of the Company since March 19, 2018. Since 1997, Mr. Malone
has held a number of directorships and chairmanships in private and AIM listed companies in the healthcare, IT and energy sectors
in the UK and the USA. He has extensive experience within the financial services sector, serving since 2001 as a board member and ultimately
Chairman of Aberdeen Asia-Pacific Income Fund (FAX), a U.S. closed-end mutual fund. He also serves as a director of a number of other
U.S. and Canadian closed- and open-end mutual funds, and of the Washington, D.C.-based Mutual Fund Directors Forum, a body representing
independent fund directors. A Scottish lawyer by profession, Mr. Malone was previously a Member of Parliament in the U.K. from 1983
to 1997 and served as Minister of State for Health in John Major’s government from 1994 to 1997. Mr. Malone is qualified as
a board member of the Company because of his substantial commercial, strategic, government and leadership experience.
Joseph
Martin: Director. Mr. Martin currently serves as Chairman of Brooks Automation, a publicly traded life sciences company,
providing services and products to help drive innovation, discovery, development and delivery of critical new therapies. Additionally,
Mr. Martin currently serves on the board of Allegro MicroSystems, Inc., a publicly traded manufacturer of high performance power
and semiconductors, where he is the Chairman of the Audit Committee. Previously, Mr. Martin served as Co-Chairman of Fairchild Semiconductor
Corporation, and the Vice-Chairman of Fairchild’s board of directors. Mr. Martin also previously served on the boards of SynQor, Inc.,
a manufacturer of power converters, Soitec Inc., a publicly traded French semiconductor wafer processing company, ChicPac, Inc.,
a publicly traded semiconductor manufacturing company and Collectors Universe Inc., a publicly traded authentication and graded company
of high value collectibles. Mr. Martin is also a Trustee at Embry-Riddle Aeronautical University. Mr. Martin holds an Executive
Masters certification from The American College of Corporate Directors and is a member of the National Association of Corporate Directors.
We believe Mr. Martin is qualified to serve as a member of the Board of Directors due to his extensive board and financial expertise.
Charles
Matine: Director. Mr. Matine serves as an Advisory Board Member of Enlaps, a start-up company providing a time-lapse
solution to photographers, since February 2018. Since July 2015, Mr. Matine has served as a strategic advisor to C4 Ventures,
a London-based venture fund supporting media, e-commerce and hardware startups. In April 2014, Mr. Matine founded B &
Associates, a marketing and digital transformation consultancy firm, and has served as its CEO since April 2014. Prior to that, Mr. Matine
served as a Business Unit Director of Apple France from July 2010 to April 2014, where he led the Education and Research business
unit, and as a Senior Marketing Manager of Apple Europe from April 2006 to June 2010, where he was responsible for promoting
Apple products and defining marketing, PR and branding strategies within central Europe, the Middle East and Africa. Prior to Apple, Mr. Matine
worked extensively in marketing and advertising, promoting technology products and brands throughout Europe. Mr. Matine studied at
Sciences Po (the Paris Institute for Political Studies, Section Public Service) and holds the IFA-Sciences Po non-executive director
certificate. We believe that Mr. Matine is qualified as to serve as a member of the Board of
Directors because of his experience with product marketing and go-to-market strategies.
Audrey
Thevenon, Ph.D.: Director. Dr. Thevenon serves as a Program Officer on the Board of Life Sciences at the National
Academies of Sciences, Engineering and Medicine (“NASEM”), a private, nonprofit institution that provides high-quality, objective
advice on science, engineering, and health matters, since October 2016, and previously served as the Associate Program Officer of
NASEM from August 2014 to October 2016. Dr. Thevenon also serves as the Managing Editor of the journal Institute for Laboratory
Animal Research at NASEM. From February 2012 to July 2014, Dr. Thevenon was a Postdoctoral Fellow at the Uniformed Services
University of the Health Sciences in Bethesda, MA. Dr. Thevenon has also completed a Postdoctoral Fellowship at the University of
Hawaii in placental pharmacology. Dr. Thevenon has a Ph.D. and an MS both in Biology from Georgetown University, as well as an MS
in Cell Biology & Physiology and a BS in Life Sciences and Environment from the University of Rennes 1 in France. We believe
that Dr. Thevenon is qualified as to serve as a member of the Board of Directors because of her experience in medicine and scientific
innovation.
Michal
Prywata: Director. Mr. Prywata is the co-founder of Bionik Canada and served as Bionik’s Chief Technology Officer
from June 2017 to April 2021, Chief Operating Officer from April 2013 to June 2017, as a director from March 2011
to September 2018, and again since March 2019. Mr. Prywata previously served as our Chief Executive Officer from March 2011
to April 2013. Mr. Prywata studied biomedical engineering at Ryerson University until the end of his second year, with a focus
on electronics and software development for medical products. He has a track record of winning technology showcases and inventing technologies
that address significant unmet needs and untapped markets. He had spent the past five years with Bionik Canada, managing technological
advancements, managing day-to-day operations, and developing concepts into products. In addition, Mr. Prywata, together with the
Company’s other co-founder and its former CEO, was responsible for raising and securing initial seed capital and subsequent capital
raises. Mr. Prywata is the co-inventor of the Company’s ARKE technology platform. Mr. Prywata serves as a member of the
Board of Directors due to his being a founder of the Company. We also believe that Mr. Prywata is qualified due to his experience
in the medical device industry.
There are no family relationships
among any of our current or proposed officers and directors.
Our officers serve at the
pleasure of the Board.
Vote Necessary to Approve Proposal 1
If a quorum is present at
the Annual Meeting, directors are elected by a plurality of votes cast at the Annual Meeting.
Stockholders do not have cumulative
voting rights in the election of directors. You may vote for all of the nominees as directors or withhold your vote from any or all of
the nominees as directors. The Board of Directors recommends a vote FOR all the director nominees listed above.
INFORMATION CONCERNING EXECUTIVE OFFICERS
The names of our executive officers, their ages as of November 15,
2021 and certain other information about them are set forth below:
Name
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Age
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Position
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Rich Russo, Jr.
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41
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Chief Financial Officer and Interim Chief Executive Officer
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Loren Wass
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59
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Chief Commercial Officer
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Rich
Russo Jr: Chief Financial Officer and Interim Chief Executive Officer. Mr. Russo Jr.
has served as the Company’s Chief Financial Officer since November 2020 and as Interim Chief Executive Officer since July 2021.
He has over 15 years of finance and accounting leadership experience and holds a CPA. From 2017-2020, Mr. Russo, Jr. served
as Vice President of Finance and U.S. Chief Financial Officer of ICarbonX, where he was responsible for the merger of 3 companies, fundraising,
and the ultimate dissolution of the U.S. companies. From 2007-2016, Mr. Russo, Jr. held various key leadership roles for NASDAQ
listed companies in life sciences, pharmaceutical and medical device industries. Mr. Russo Jr. served as Corporate Controller for
Pieris Pharmaceuticals, Inc., a clinical stage biotechnology company, Juniper Pharmaceuticals, a woman’s health company focused
on developing therapeutics and Cynosure, a medical device company focused on aesthetic treatment systems. In each of these roles, Mr. Russo, Jr.
was responsible for all finance activities and SEC reporting along including partnering closely with the business leaders to ensure effective
and efficient financial procedures throughout the organization. Mr. Russo, Jr. started his career in 2005, where he served as
an auditor at Pricewaterhouse Coopers in the assurance group.
Loren
Wass: Chief Commercial Officer. Mr. Wass has served as our Chief Commercial Officer since September 2019. From
January 2014 through August 2019, Mr. Wass was the Vice President of Sales, Business Development and Reimbursement at ReWalk
Robotics Ltd. (Nasdaq: RWLK), a medical device company focusing on rehabilitation, and was also a member of its Executive Committee. While
at ReWalk, Mr. Wass was responsible for U.S. sales and business development, reimbursement activities and payer policy strategies
and submissions. Mr. Wass holds a B.S. from Springfield College.
CORPORATE GOVERNANCE
Communications to the Board of Directors
Our Board maintains a policy
of reviewing and considering communications from our stockholders and other interested parties. Any interested party who desires to contact
the Board may do so by fax, telephone, or regular mail addressed to the Board of Directors, c/o Rich Russo Jr., Chief Financial Officer
and Interim Chief Executive Officer, 80 Coolidge Hill Road, Watertown, Massachusetts 02472; telephone: (617) 926-4800, email: rrusso@bioniklabs.com.
Such communications can be sent to the Board by mail in a sealed envelope addressed to an individual director, the non-management directors
or the full Board. The Corporate Secretary will deliver the envelope unopened (1) if addressed to a director, to the director, (2) if
addressed to the Board, to the Chairman of the Board who will report thereon to the Board, or (3) if addressed to the non-management
directors, to the non-management directors. Stockholders can also send electronic communications to the Board via e-mail to Rich Russo
Jr., our Chief Financial Officer and Interim Chief Executive Officer, who will forward the communication to the intended recipient.
Our directors periodically
review communications from stockholders and other interested parties and determine, in their discretion, whether the communication addresses
a matter that is appropriate for consideration by the Board. While we do not have a formal policy regarding attendance of annual meetings,
directors are encouraged to attend the annual meeting of stockholders and receive communications directly from stockholders at that time.
At our last annual meeting, all of our directors who were directors at that time attended in person or by teleconference.
Board Leadership Structure, Committees and
Risk Oversight
The business and affairs of the Company are managed under the direction
of our Board of Directors which as of November 15, 2021 is comprised of Messrs. Auberton-Herve, Gaston-Dreyfus, Martin, Malone, Matine,
Prywata, and Dr. Thevenon.
There have been no changes
in any state law or other procedures by which security holders may recommend nominees to our board of directors.
Committees of the Board of Directors
Presently,
the Board has two standing committees — the Audit Committee and the Compensation Committee. All members of the Audit Committee and
the Compensation Committee are required by the charters of the respective committees to be independent.
Audit Committee
Our Audit Committee consists of Messrs. Martin (Chairman), Malone and
Matine. Each member of the Audit Committee is independent, and the Board has determined that Messrs. Martin, Malone and Matine are all
independent and Mr. Martin is an “audit committee financial expert,” as defined in Securities and Exchange Commission (“SEC”)
rules. The Audit Committee acts pursuant to a written charter which is available through our website at www.bioniklabs.com.
The primary functions of the
Audit Committee are to assist the Board in overseeing (i) the effectiveness of the Company’s accounting and financial reporting
processes and internal controls and the audits of the Company’s financial statements, (ii) the qualifications, independence,
appointment, retention, compensation and performance of the Company’s registered public accounting firm and (iii) the performance
of the Company’s internal audit department or department or person(s) having the equivalent responsibility and functions.
Compensation Committee
Our Compensation Committee
consists of Mr. Malone (Chairman), Mr. Martin, and Dr. Thevenon. Each of the members of the Compensation Committee is independent.
The Compensation Committee acts pursuant to a written charter which is available through our website at www.bioniklabs.com.
The primary functions of the
Compensation Committee are to (i) review and approve corporate goals and objectives relevant to executive compensation, (ii) determine
and review the CEO’s and other executive officers’ compensation, and (iii) make recommendations to the Board concerning
(a) compensation and (b) adoption of equity incentive plans.
Risk Oversight
Companies face a variety of
risks, including financial reporting, legal, credit, liquidity, and operational risk. The Board believes an effective risk management
system will (1) timely identify the material risks that the Company faces, (2) communicate necessary information with respect
to material risks to senior executives and, as appropriate, to the Board or relevant Board Committee (if any), (3) implement appropriate
and responsive risk management strategies consistent with Company’s risk profile, and (4) integrate risk management into Company
decision-making.
The Board as a whole oversees
risk management after receiving briefings provided by management and advisors as well as its own analysis and conclusions regarding the
adequacy of the Company’s risk management processes.
Board Meetings
During the fiscal year ended
March 31, 2021, our full Board met nine times and acted by unanimous written consent four times. No director who served as such in
the fiscal year ended March 31, 2021 attended less than approximately 89% of the board meetings held during such period, except for
one director who attended approximately 77% of the board meetings during that period.
Director Nominations and Qualifications
Our Board has no nominating
committee. The Board has determined that director nominees could be selected, or recommended for our Board’s selection, by the independent
members of the Board. The Board does not currently have a charter or written policy with regard to the nomination process. The nominations
of the directors standing for election at the Annual Meeting for the fiscal year ending March 31, 2022 were recommended and approved
by our independent directors.
At this time, we do not have
a formal policy with regard to the consideration of any director nominees recommended by our stockholders because historically we have
not received recommendations from our stockholders and the costs of establishing and maintaining procedures for the consideration of stockholder
nominations would be unduly burdensome. However, any recommendations received from stockholders will be evaluated in the same manner that
potential nominees recommended by Board members, management or other parties are evaluated. Any stockholder nominations proposed for consideration
should include the nominee’s name and qualifications for Board membership and should be addressed to: Rich Russo Jr., Chief Financial
Officer and Interim Chief Executive Officer, Bionik Laboratories Corp., 80 Coolidge Hill Road, Watertown, Massachusetts 02472;. We do
not intend to treat stockholder recommendations in any manner different from other recommendations.
Qualifications for consideration
as a director nominee may vary according to the particular areas of expertise being sought as a complement to the existing Board composition.
However, in making its nominations, our Board as a whole considers, among other things, an individual’s business experience, industry
experience, financial background, breadth of knowledge about issues affecting our company, time available for meetings and consultation
regarding company matters and other particular skills and experience possessed by the individual.
We do not currently employ
an executive search firm, or pay a fee to any other third party, to locate qualified candidates for director positions; however, we have
engaged an executive search firm for customary fees to locate and evaluate candidates for a permanent chief executive officer position.
Any such permanent chief executive officer may request or require board membership as a condition to employment.
Code of Business Conduct and Ethics Policy
We adopted a Code of Business
Conduct and Ethics that applies to, among other persons, our principal executive officers, principal financial officer, principal accounting
officer or controller, and persons performing similar functions. Our Code of Business Conduct and Ethics is available on our website www.bioniklabs.com.
Director Independence
We use the definition of “independence”
of The NASDAQ Stock Market to make this determination. NASDAQ Listing Rule 5605(a)(2) provides that an “independent director”
is a person other than an officer or employee of the company or any other individual having a relationship, which, in the opinion of the
Company’s Board, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. The
NASDAQ listing rules provide that a director cannot be considered independent if:
|
·
|
The director is, or at any time during the past three years was, an employee of the company;
|
|
·
|
The director or a family member of the director accepted any compensation from the company in excess of
$120,000 during any period of twelve consecutive months within the three years preceding the independence determination (subject to certain
exclusions, including, among other things, compensation for board or board committee service);
|
|
·
|
The director or a family member of the director is, or at any time during the past three years was, an
executive officer of the company;
|
|
·
|
The director or a family member of the director is a partner in, controlling stockholder of, or an executive
officer of an entity to which the company made, or from which the company received, payments in the current or any of the past three fiscal
years that exceed 5% of the recipient’s consolidated gross revenue for that year or $200,000, whichever is greater (subject to certain
exclusions);
|
|
·
|
The director or a family member of the director is employed as an executive officer of an entity where,
at any time during the past three years, any of the executive officers of the company served on the compensation committee of such other
entity; or
|
|
·
|
The director or a family member of the director is a current partner of the company’s outside auditor,
or at any time during the past three years was a partner or employee of the company’s outside auditor, and who worked on the company’s
audit.
|
Under such definitions, Messrs. Martin,
Malone, Matine, Gaston-Dreyfus and Dr. Thevenon are considered independent directors.
Report of the Audit Committee
The Audit Committee oversees
our accounting and financial reporting processes and the audits of our financial statements on behalf of the Board and selects an independent
public accounting firm to perform these audits. Management has the primary responsibility for establishing and maintaining adequate internal
control over financial reporting, preparing the financial statements, and establishing and maintaining adequate controls over public reporting.
Our independent registered public accounting firm for fiscal 2021, MNP LLP, had responsibility for conducting an audit of our annual financial
statements in accordance with the standards of the Public Company Accounting Oversight Board (United States) and expressing an opinion
on the conformity of those audited financial statements with generally accepted accounting principles.
The Audit Committee oversaw
the independent public accounting firm’s qualifications and independence, as well as its performance. The Audit Committee assisted
the Board in overseeing the preparation of the Company’s financial statements, the Company’s compliance with legal and regulatory
requirements, and the performance of the Company’s internal audit function. The Audit Committee met with personnel of the Company
and MNP LLP to review the scope and the results of the annual audit, the amount of audit fees, the Company’s internal accounting
controls, the Company’s financial statements contained in the Company’s Annual Report to Shareholders and other related matters.
The Audit Committee has reviewed
and discussed with management the financial statements for fiscal year 2021 audited by MNP LLP, as well as management’s report on
internal control over financial reporting, using the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission
(COSO) in Internal Control — Integrated Framework. The Audit Committee has discussed with MNP LLP various matters related to the
financial statements, including those matters required to be discussed by SAS 114 (The Auditor’s Communication with Those Charged
with Governance). The Audit Committee has also discussed with MNP LLP its report on internal control over financial reporting, has received
the written disclosures and the letter from MNP LLP required by Public Company Accounting Oversight Board (PCAOB) Ethics and Independence
Rule 3526, Communication with Audit Committees Concerning Independence (Rule 3526), and has discussed with MNP LLP its independence.
Based upon such review and
discussions, the Audit Committee recommended to the Board of Directors, and the Board approved the recommendation, that the audited financial
statements be included in the Company’s Annual Report on Form 10-K for the fiscal year ending March 31, 2021 for filing
with the SEC.
AUDIT COMMITTEE
P. Gerald Malone
Joseph Martin
Charles Matine
The foregoing Audit Committee Report shall
not be deemed incorporated by reference into any filing under the Securities Act of 1933 or the Securities Exchange Act of 1934, and shall
not otherwise be deemed filed under these acts, except to the extent we specifically incorporate by reference into such filings.
Pre-Approval Policies and Procedures
Our board of directors has
not adopting a policy on pre-approval of audit and permissible non-audit services.
PRINCIPAL ACCOUNTING FEES AND SERVICES
We have reviewed the various
fees that we paid or accrued to MNP LLP during the year ended March 31, 2021 and 2020 for services they rendered in connection with
our annual audits and quarterly reviews, as well as for any other non-audit services they rendered.
The following table shows
the fees for professional services rendered by MNP LLP for the audit of our financial statements for the years ended March 31, 2021
and 2020 and fees billed for other services rendered by MNP LLP during those periods:
Fee Category
|
|
2021
|
|
|
2020
|
|
Audit Fees
|
|
$
|
126,291
|
|
|
$
|
100,138
|
|
Audited related fees
|
|
|
98,930
|
|
|
|
69,171
|
|
Tax Fees
|
|
|
19,301
|
|
|
|
26,703
|
|
All Other Fees
|
|
|
17,094
|
|
|
|
13,915
|
|
Total Fees
|
|
$
|
261,616
|
|
|
$
|
209,927
|
|
Audit fees consist of fees
billed for professional services rendered for the audit of our financial statements that are normally provided by the above auditors in
connection with statutory and regulatory filings or engagements. Audit-related fees consist of fees billed for professional services rendered
for the review of SEC filings or review in quarterly reports and services that are normally provided by the above auditors in connection
with statutory and regulatory filings. Tax fees consist of fees to prepare the Company’s federal and state income tax returns. Other
fees relate to advisory services related research on accounting or other regulatory matters.
COMPENSATION OF DIRECTORS AND EXECUTIVE OFFICERS
The Compensation Committee
of our Board is responsible for reviewing and approving the compensation of our executive officers and directors and our general compensation,
benefits and perquisites policies and practices, including, without limitation, our incentive-compensation plans and equity-based compensation
plans (in circumstances in which equity-based compensation plans are not subject to stockholder approval, such plans shall be subject
to Board approval). The Compensation Committee is also responsible for reviewing and approving the goals and objectives relevant to the
compensation of our chief executive officer and reviewing and making recommendations to the Board with regard to the compensation of our
directors. The Compensation Committee may delegate to our chief executive officer the responsibility for reviewing the compensation of
our named executive officers other than the chief executive officer. However, any recommendations by the chief executive officer shall
be submitted to, reviewed and approved by, the Board as a whole.
Summary Compensation Table
The following table sets forth
information regarding each element of compensation that was paid or awarded to the named executive officers of the Company for the periods
indicated.
Name and Principal
|
|
Salary
|
|
|
Bonus
|
|
|
Stock
Awards
|
|
|
Option
Awards (3)
|
|
|
Non-Equity
Incentive Plan
Compensation
|
|
|
All Other
Compensation
|
|
|
Total
|
|
Position
|
|
Year (1)
|
|
|
($)
|
|
|
($)(2)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
Eric Dusseux (4)
|
|
|
2021
|
|
|
|
379,203
|
(5)
|
|
|
147,016
|
(5)
|
|
|
–
|
|
|
|
--
|
|
|
|
–
|
|
|
|
7,640
|
|
|
|
533,859
|
|
Former Chief Executive Officer
|
|
|
2020
|
|
|
|
375,850
|
|
|
|
225,510
|
|
|
|
–
|
|
|
|
671,140
|
|
|
|
–
|
|
|
|
37,940
|
|
|
|
1,310,440
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rich Russo Jr. (6)
|
|
|
2021
|
|
|
|
89,353
|
|
|
|
--
|
|
|
|
–
|
|
|
|
80,747
|
|
|
|
–
|
|
|
|
--
|
|
|
|
170,100
|
|
Chief Financial Officer & Interim CEO
|
|
|
2020
|
|
|
|
--
|
|
|
|
--
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
--
|
|
|
|
--
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loren Wass (7)
|
|
|
2021
|
|
|
|
246,875
|
(8)
|
|
|
11,667
|
(8)
|
|
|
–
|
|
|
|
--
|
|
|
|
–
|
|
|
|
1,000
|
|
|
|
259,542
|
|
Chief Commercial Officer
|
|
|
2020
|
|
|
|
144,071
|
|
|
|
--
|
|
|
|
--
|
|
|
|
14,010
|
|
|
|
--
|
|
|
|
1,000
|
|
|
|
159,071
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michal Prywata (9)
|
|
|
2021
|
|
|
|
159,448
|
|
|
|
--
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
10,525
|
|
|
|
169,973
|
|
Former Chief Technology Officer
|
|
|
2020
|
|
|
|
210,000
|
|
|
|
12,597
|
|
|
|
–
|
|
|
|
–
|
|
|
|
–
|
|
|
|
13,264
|
|
|
|
235,861
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leslie Markow (10)
|
|
|
2021
|
|
|
|
180,847
|
|
|
|
44,174
|
|
|
|
–
|
|
|
|
--
|
|
|
|
–
|
|
|
|
55,941
|
|
|
|
280,962
|
|
Former Chief Financial Officer
|
|
|
2020
|
|
|
|
210,000
|
|
|
|
31,492
|
|
|
|
–
|
|
|
|
20,476
|
|
|
|
–
|
|
|
|
13,343
|
|
|
|
275,311
|
|
|
(1)
|
“2021” represents the fiscal year ended March 31, 2021 and “2020” represents
the fiscal year ended March 31, 2020.
|
|
(2)
|
Reflects bonus amounts paid in the fiscal years ended March 31, 2021 and March 31, 2020 for
bonuses earned in the fiscal years ended March 31, 2020 and March 31, 2019, respectively.
|
|
(3)
|
For assumptions made in such valuation, see Note 10 to the Company’s
audited consolidated financial statements included in our Annual Report on Form 10-K for the fiscal year ended March 31, 2021.
|
|
(4)
|
Dr. Dusseux resigned as Chief Executive Officer and from all other employment and officer positions
as of July 14, 2021.
|
|
(5)
|
Includes $130,221 which represents deferred salary amounts and $147,016 of deferred bonuses. The obligations
of which have been forgiven and satisfied and personally assumed by Remi Gaston-Dreyfus, a director.
|
|
(6)
|
On November 30, 2020, Rich Russo Jr. was hired as our Chief Financial Officer with a base salary
of $265,000 and was appointed as Interim CEO as of July 14, 2021.
|
|
(7)
|
On September 3, 2019 Loren Wass was hired as our Chief Commercial Officer with a base salary of $250,000.
|
|
(8)
|
Includes $50,000 which represents deferred salary amounts and $11,667 of deferred bonuses. The obligations
of which have been forgiven and satisfied and personally assumed by Remi Gaston-Dreyfus, a director.
|
|
(9)
|
Mr. Prywata resigned as an executive officer as of April 13, 2021.
|
|
(10)
|
Ms. Markow resigned effective January 29, 2021 from her Chief Financial Officer role.
|
Outstanding Equity Awards at Fiscal Year-End
The following table presents
the outstanding equity awards held by each of the named executive officers as of the end of the fiscal year ended March 31, 2021.
Option Awards
Name
|
|
Option Grant Date
|
|
Number of Securities
Underlying
Unexercised Options
Exercisable
|
|
|
Number of Securities
Underlying
Unexercised Options
Un-Exercisable
|
|
|
Option
Exercise
Price
|
|
|
Option
Expiration
Date
|
Eric Dusseux (1)
|
|
September 1, 2017
|
|
|
27,145
|
(2)
|
|
|
13,573
|
(2)
|
|
$
|
24.15
|
|
|
September 1, 2027
|
|
|
January 24, 2018
|
|
|
3,333
|
|
|
|
-
|
|
|
$
|
23.25
|
|
|
January 24, 2025
|
|
|
April 19, 2018
|
|
|
40,000
|
|
|
|
-
|
|
|
$
|
9.735
|
|
|
April 19, 2028
|
|
|
May 31, 2019
|
|
|
110,855
|
|
|
|
-
|
|
|
$
|
3.16
|
|
|
May 31, 2026
|
|
|
July 26, 2019
|
|
|
19,293
|
|
|
|
-
|
|
|
$
|
3.595
|
|
|
July 26, 2026
|
|
|
July 26, 2019
|
|
|
57,880
|
(3)
|
|
|
38,586
|
(3)
|
|
$
|
3.595
|
|
|
July 26, 2026
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michal Prywata
|
|
July 1, 2014
|
|
|
6,606
|
(4)
|
|
|
-
|
|
|
$
|
34.50
|
|
|
July 1, 2021
|
|
|
December 14, 2015
|
|
|
2,667
|
(4)
|
|
|
-
|
|
|
$
|
150.00
|
|
|
December 14, 2022
|
|
|
January 24, 2018
|
|
|
3,333
|
(4)
|
|
|
-
|
|
|
$
|
23.25
|
|
|
January 24, 2025
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rich Russo Jr.
|
|
November 30, 2020
|
|
|
-
|
|
|
|
76,902
|
(5)
|
|
$
|
1.21
|
|
|
November 30, 2027
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Leslie N. Markow
|
|
February 17, 2015
|
|
|
944
|
(6)
|
|
|
-
|
|
|
$
|
34.50
|
|
|
February 17, 2022
|
|
|
November 24, 2015
|
|
|
2,667
|
(6)
|
|
|
-
|
|
|
$
|
183.00
|
|
|
November 24, 2022
|
|
|
January 24, 2018
|
|
|
2,000
|
(6)
|
|
|
-
|
|
|
$
|
23.25
|
|
|
January 24, 2025
|
|
|
May 31, 2019
|
|
|
7,400
|
(6)
|
|
|
-
|
|
|
$
|
3.16
|
|
|
May 31, 2026
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loren Wass
|
|
September 3, 2019
|
|
|
1,667
|
(7)
|
|
|
3,333
|
(7)
|
|
$
|
3.20
|
|
|
September 3, 2025
|
|
(1)
|
Pursuant to a Separation Agreement, dated as of July 14, 2021, with Dr. Dusseux, pursuant to
which, among other things, the Company and Dr. Dusseux agreed to end their employer-employee relationship, the Company’s May 31,
2019 option grant to Dr. Dusseux is exercisable through, and the termination date is extended through, July 26, 2026. In addition,
all other options granted to Dr. Dusseux shall continue in accordance with their terms, except that all unvested options as of such
separation date have lapsed and shall not be exercisable.
|
|
(2)
|
On September 1, 2017, we issued 40,718 options to Dr. Dusseux. 27,145 options have vested and
50% of the remaining options vest based on performance and 50% vest annually over 5 years.
|
|
(3)
|
On July 26, 2019, Dr. Dusseux was granted 96,466 which vests over time and based on performance,
between September 1, 2019 and September 1, 2022.
|
|
(4)
|
Upon Mr. Prywata’s resignation in April 2021, these options previously granted remain
exercisable as Mr. Prywata still serves on our Board of Directors.
|
|
(5)
|
The remaining shares will vest 100% at November 30, 2021.
|
|
(6)
|
Pursuant to the terms of the 2014 Equity Incentive Plan, upon her resignation from the Company, which
was effective January 29, 2021, Ms. Markow forfeited all shares underlying these options that were exercisable as of April 29,
2021.
|
|
(7)
|
The remaining shares vest as follows: 1,667 on September 3, 2021 and 1,666 on September 3,
2022.
|
On February 25, 2015,
1,752 common shares were issued to two former lenders connected with a $0.2 million loan received and repaid in fiscal 2013. As part of
the consideration for the initial loan, Mr. Prywata and Mr. Caires, a former executive of the Company, collectively transferred
2,098 common shares to the lenders. For contributing the common shares to the lenders, the Company intends to reimburse them 2,134 common
shares; however, these shares have not yet been issued.
Long-Term Incentive Plans and Awards
Since our incorporation on
January 8, 2010 through March 31, 2021, we did not have any long-term incentive plans that provided compensation intended to
serve as incentive for performance. No individual grants or agreements regarding future payouts under non-stock price-based plans have
been made to any executive officer or any director or any employee or consultant since our inception through March 31, 2021.
Director Compensation
The following table sets forth
a summary of the compensation we paid or accrued to our non-employee directors during the fiscal year ended March 31, 2021.
Name
|
|
Fees
Earned
or Paid in
Cash(1)
|
|
|
Stock
Awards(1)
|
|
|
Option
Awards
|
|
|
Non-Equity
Incentive
Plan
Compensation
|
|
|
Nonqualified
Deferred
Compensation
Earnings
|
|
|
All Other
Compensation
|
|
|
Total
|
|
Andre Auberton-Herve
|
|
$
|
180,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
180,000
|
|
Remi Gaston Dreyfus
|
|
$
|
50,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
50,000
|
|
P. Gerald Malone
|
|
$
|
50,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
50,000
|
|
Joseph Martin
|
|
$
|
50,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
50,000
|
|
Charles Matine
|
|
$
|
50,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
50,000
|
|
Audrey Thevenon
|
|
$
|
50,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
50,000
|
|
|
(1)
|
The director fees payable in cash were deferred and each director was subsequently paid the amounts stated
above in common stock based on the closing price of our common stock as of March 25, 2021.
|
Other than Mr. Auberton-Herve’s
annual fee as Chairman of $0.2 million, our non-employee directors are entitled to receive an annual cash payment of up to $0.1 million,
as well as reimbursement for expenses incurred by them in connection with attending board meetings. Our directors also are eligible for
stock option grants.
Employment Agreements
Eric Dusseux
The Company entered into an
employment agreement with Dr. Dusseux on September 1, 2017, as amended on November 18, 2019, pursuant to which he served
as our Chief Executive Officer (the “Dusseux Employment Agreement”). Under the Dusseux Employment Agreement, Dr. Dusseux
received an initial annual base salary of CDN$500,000. In April 2020, Dr. Dusseux agreed to a salary deferral of 50% because
of our response to the COVID-19 pandemic. This deferral ended on December 1, 2020. The deferred salary amount and the bonus, totaling
$0.3 million, that Dr. Dusseux was eligible for the year ended March 31, 2020 was assigned to Mr. Gaston-Dreyfus in March 2021
in exchange for 110,894 shares.
The Company also entered into
an Equity Compensation Agreement, dated September 1, 2017 (the “Dusseux Equity Compensation Agreement”), pursuant to
which the Company is required to grant Dr. Dusseux a stock option representing a right to acquire 6% of the aggregate amount of the
Company’s outstanding common stock and exchangeable shares as of the date of grant. The exercise price of the option is $24.15,
and the expiration date will be the tenth anniversary of the date of grant. One-sixth of the option will be vested and exercisable as
of its date of grant, and the unvested portion of the option will become vested and exercisable as follows:
|
·
|
50% in 5 equal annual installments on each of the five anniversaries of the date of the issuance of the
option; and
|
|
·
|
50% in 5 equal separate tranches annually based on Dr. Dusseux’s achievement of annual performance
goals to be established by the Board in consultation with Dr. Dusseux. The extent to which each separate tranche becomes vested shall
be determined by reference to Dr. Dusseux’s annual performance as measured by reference to the performance targets set for
that performance period. In the event a specific tranche is not fully vested, that tranche shall not be forfeited, but shall remain outstanding,
and may become vested as a result of Dr. Dusseux’s future performance at an above target level or as a result of accelerated
vesting on the occurrence of any other event that triggers accelerated vesting.
|
The option, including any
portion that is subject to vesting based on the period of Dr. Dusseux’s service and any portion that is subject to vesting
on the basis of performance, shall be fully vested on the occurrence of any of the following conditions: (a) A Change of Control
(as defined in the Company’s 2014 Equity Incentive Plan) or (b) Termination of Dr. Dusseux’s employment that constitutes
a “separation from service” (as the phrase is used for purpose of Section 409A of the Internal Revenue Code of 1986,
as amended), other than where such termination is for Cause (as defined in the Company’s 2014 Equity Incentive Plan) or if Dr. Dusseux
resigns other than for Good Reason (as defined in the Company’s 2014 Equity Incentive Plan).
The agreement contains customary
non-competition and non-solicitation provisions pursuant to which Dr. Dusseux agrees not to compete and solicit with the Company.
Dr. Dusseux also agreed to customary terms regarding confidentiality and ownership of intellectual property.
The Company entered into a
Separation Agreement, dated as of July 14, 2021, with Dr. Dusseux, pursuant to which, among other things, the Company and Dr. Dusseux
agreed to end their employer-employee relationship. Pursuant to the agreement, Dr. Dusseux resigned from all employment and officer
positions with the Company and its subsidiaries, including as a director of the Company. The Company’s May 31, 2019 option
grant to Dr. Dusseux is exercisable through, and the termination date is extended through, July 26, 2026. In addition, all other
options granted to Dr. Dusseux shall continue in accordance with their terms, except that all unvested options as of the separation
date have lapsed and shall not be exercisable. The agreement provides for customary mutual general releases and confidentiality and non-disparagement
provisions. In addition, the restrictive covenants in the Dusseux Employment Agreement shall continue in accordance with their respective
terms. Except as specifically set forth in and pursuant to such Separation Agreement, the Company has no obligation to pay any other salary,
wages, bonuses, commissions, incentive compensation, vacation or severance to Dr. Dusseux. Additionally, the Company shall retain
certain indemnity obligations in favor of Dr. Dusseux, as specified in such Separation Agreement.
Rich Russo Jr.
The
Company entered into an employment agreement with Mr. Russo Jr. dated November 30, 2020 as amended as of October 15, 2021,
and it provides him with a base compensation of $265,000 and an annual bonus of up to 40% of the base salary, payable based on performance
in the previous fiscal year. The bonus is determined based on the achievement of the Employee’s objectives that are agreed to with
the CEO for each fiscal year. Mr. Russo Jr.’s employment agreement also allowed for an option to purchase an aggregate of 76,902
shares of the Company’s common stock pursuant to the Company’s 2014 Equity Incentive Plan.
In
the event of termination of employment caused by his death, his resignation without good reason, by the Company with or without cause,
by Mr. Russo Jr.’s resignation with good reason, or by the Company without cause or by his resignation with good reason within
six months after a change in control, Mr. Russo Jr. will be entitled to the following:
Severance Payment:
|
Six months of final base salary following execution by him of a release of the Company (only in the case of (i) his termination without cause, (ii) his resignation for good reason, or (iii) his termination without cause or his resignation for good reason within six months after a change in control).
|
|
|
Benefits:
|
In the case of a termination by the Company without cause, Mr. Russo Jr’s resignation for good reason, or a termination by the Company without cause or Mr. Russo Jr’s resignation with good reason within six months after a change in control, Mr. Russo Jr. will be entitled to receive an amount equivalent to six months of the Company’s portion of medical and dental benefits if these benefits were elected.
|
|
|
Salary:
|
Base salary through the date of termination.
|
|
|
Accrued Bonus:
|
Payable only in the case of a termination by the Company without cause or Mr. Russo’s resignation with good reason within six months after a change in control.
|
|
|
Vacation Pay:
|
Accrued but unused vacation pay.
|
Loren W. Wass
The
Company entered into an employment agreement with Mr. Wass on September 3, 2019 (the “Wass Employment Agreement”),
pursuant to which he serves as the Company’s Chief Commercial Officer. Pursuant to the terms of the Wass Employment Agreement, Mr. Wass
shall receive an annual base salary of $250,000 per annum. The annual base salary shall be reviewed on an annual basis. Mr. Wass
may be entitled to receive an annual bonus of up to 40% of annualized actual base salary, based on performance in the previous fiscal
year. He is also entitled to participate in the Company’s equity incentive plan, and was granted options to purchase an aggregate
of 5,000 shares of the Company’s common stock, at an exercise price per share of $3.20, which is equal to the fair market value
of the Company’s common stock on September 3, 2019, the date of grant, and which shall vest equally over a 3 year period commencing
one year from the date of grant and in the two subsequent years on the anniversary of the grant date. In April 2020, Mr. Wass
agreed to a salary deferral of 30% as a result of our response to the COVID-19 pandemic.
Michal Prywata
Mr. Prywata resigned
from his position of Chief Technology Officer of the Company on April 13, 2021. Mr. Prywata remains as a board member of the
Company.
Leslie Markow
Pursuant
to the Separation Agreement and Release, dated November 23, 2020, entered into by and between the Company and Ms. Markow in
connection with Ms. Markow’s resignation from the Company, Ms. Markow received a separation payment in the amount of $0.2
million as salary continuance, which was equal to nine months of her then current base salary. Ms. Markow also received $23,625,
representing her pro-rata bonus based on the average of the past 3 years of actual achievement, which was equal to nine months of the
pro-rata portion.
Ms. Markow
also received her deferred salary amount of $42,000 on January 29, 2021 and her fiscal year ending March 31, 2020 annual bonus
that had been previously deferred of $37,800 on January 29, 2021.
Limits on Liability and Indemnification
We provide directors and officers
insurance for our current directors and officers.
Our certificate of incorporation
eliminate the personal liability of our directors to the fullest extent permitted by law. The certificate of incorporation further provide
that the Company will indemnify its officers and directors to the fullest extent permitted by law. We believe that this indemnification
covers at least negligence on the part of the indemnified parties. Insofar as indemnification for liabilities under the Securities Act
may be permitted to our directors, officers, and controlling persons under the foregoing provisions or otherwise, we have been advised
that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act of 1933 and is therefore unenforceable.
Equity Compensation Plan Information
We adopted, and a majority
of our stockholders approved, the 2014 Equity Incentive Plan (the “2014 Plan”). Under such plan, we may grant equity-based
incentive awards, including options, restricted stock, and other stock-based awards, to any directors, employees, advisers, and consultants
that provide services to us or any of our subsidiaries on terms and conditions that are from time to time determined by us. An aggregate
of up to 15% of our common stock and common stock reserved for issuance from the Exchangeable Shares are reserved for issuance under the
2014 Plan, and options for the purchase of 331,550 shares of our common stock have been granted and are outstanding as of March 31,
2021. The purpose of the 2014 Plan is to provide financial incentives for selected directors, employees, advisers, and consultants of
the Company and/or its subsidiaries, thereby promoting the long-term growth and financial success of the Company.
The table below sets forth
information as of March 31, 2021 with respect to compensation plans under which our common stock or Exchangeable Shares are authorized
for issuance.
|
|
(a)
Number of securities
to be Issued
upon
exercise of
outstanding options,
warrants and rights
|
|
|
(b)
Weighted-
average
exercise price of
outstanding
options,
warrants and
rights
|
|
|
(c)
Number of securities
remaining available for
future issuance under
equity compensation
plans
(excluding
securities reflected in
column (a))
|
|
Equity compensation plans approved by security holders
|
|
|
331,550
|
|
|
$
|
10.54
|
|
|
|
437,475
|
|
Equity compensation plans not approved by security holders:
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive stock options
|
|
|
486,592
|
|
|
$
|
7.04
|
|
|
|
-
|
|
Total
|
|
|
818,142
|
|
|
|
|
|
|
|
437,475
|
|
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Procedures and Policies
We consider “related
party transactions” to be transactions between our Company and (i) a director, officer, director nominee or beneficial owner
of greater than five percent of our stock; (ii) the spouse, parents, children, siblings or in-laws of any person named in (i); or
(iii) an entity in which one of our directors or officers is also a director or officer or has a material financial interest.
Our Board of Directors is
vested with the responsibility of evaluating and approving any potential related party transaction, unless a special committee consisting
solely of independent directors is appointed by the Board of Directors. We do not have any formal policies or procedures for related party
transactions.
Transactions with Related Parties
Since April 1, 2019 through
March 31, 2021, entities controlled by Mr. Gaston-Dreyfus have made the following loans to the Company:
On June 11, 2019, the
Company borrowed $0.5 million from an affiliate of Mr. Gaston-Dreyfus evidenced by a convertible promissory note pursuant to an up
to $9 million convertible note offering, and such note and interest was converted into common shares of the Company pursuant to the terms
of such note and 76,225 common shares were issued on September 30, 2019.
On February 24, 2021,
the Company borrowed $0.3 million from an affiliate of Mr. Gaston-Dreyfus evidenced by an up to $3 million loan agreement, and such
note and interest will need to be paid back by February 12, 2023 or the date of receipt by the Company of a minimum of $3 million
in equity.
On March 18, 2021, the
Company borrowed $0.3 million from an affiliate of Mr. Gaston-Dreyfus evidenced by an up to $3 million loan agreement, and such note
and interest will need to be paid back by February 12, 2023 or the date of receipt by the Company of a minimum of $3 million in equity.
In connection with a CDN$250,000
loan obtained by Bionik Canada (which loan has been repaid), Bionik agreed to transfer pre-transaction 83,574 common shares to the lenders.
In addition, Messrs. Caires and Prywata also transferred 100,000 pre- transaction common shares to the loan holder and this will
be reimbursed by the issuance of 2,134 exchangeable shares (exchangeable to common shares) to Messrs. Caires and Prywata. These shares
have not yet been issued.
On May 8, 2019, the Company
borrowed $0.5 million from an entity controlled by Mr. Auberton-Herve evidenced by a promissory note. Such note was transferred and
assigned to an unaffiliated entity in September 2019.
On March 26, 2021, we
entered into a Stock Purchase Agreement with RGD Investissements S.A.S., an affiliate of Mr. Gaston-Dreyfus. Pursuant to the purchase
agreement, RGD purchased 135,560 shares of our common stock, for consideration consisting of the forgiveness and satisfaction of an aggregate
of $0.3 million of deferred salary and bonus liabilities of our subsidiaries originally owed to Dr. Eric Dusseux, the Company’s
CEO, and Mr. Loren Wass, the Company’s CCO. The rights to the payments by us with respect to such liabilities were assigned
by Dr. Dusseux and Mr. Wass to RGD on March 26, 2021. Upon the issuance of the shares to RGD, all of the liabilities were
forgiven and satisfied and no longer a liability on our balance sheet.
On July 15, 2021, we
commenced a refinancing of our existing indebtedness and launched a new secured convertible promissory note offering (the “Offering”)
of up to $10,000,000. Pursuant to the refinancing, among other things, a $642,153.61 portion of the outstanding principal and accrued
and unpaid interest under the Company’s then-existing Term Loan and Security Agreement dated as of February 12, 2021 which
were held by (a) RGD Investissements S.A.S., an affiliate of Mr. Gaston-Dreyfus, and (b) an affiliate of Mr. Auberton-Hervé,
was applied towards the purchase price to exercise outstanding options beneficially owned by Messrs. Gaston-Dreyfus and Auberton-Hervé.
Other than the above transactions,
there have been no related party transactions, or any other transactions or relationships required to be disclosed pursuant to Item 404
Regulation S-K. The Company
Other than the above transactions,
there have been no related party transactions, or any other transactions or relationships required to be disclosed pursuant to Item 404
Regulation S-K. The Company is currently not a subsidiary of any company.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT
The following table shows the beneficial ownership of our Common Stock
as of November 15, 2021 held by (i) each person known to us to be the beneficial owner of more than five percent (5%) of our Common Stock;
(ii) each director; (iii) each executive officer; and (iv) all directors and executive officers as a group, as adjusted to reflect the
one-for-one hundred fifty reverse stock split.
Beneficial ownership is determined in accordance with the rules of
the SEC, and generally includes voting power and/or investment power with respect to the securities held. Shares of Common Stock subject
to options and warrants currently exercisable or which may become exercisable within 60 days of November 15, 2021 are deemed outstanding
and beneficially owned by the person holding such options or warrants for purposes of computing the number of shares and percentage beneficially
owned by such person, but are not deemed outstanding for purposes of computing the percentage beneficially owned by any other person.
Except as indicated in the footnotes to this table, the persons or entities named have sole voting and investment power with respect to
all shares of our Common Stock shown as beneficially owned by them.
The following table provides for percentage ownership assuming 5,903,360
shares are issued and outstanding as of November 15, 2021, consisting of 5,790,920 shares of Common Stock and 112,440 Common Stock equivalents
through the Exchangeable Shares. The percentages below also assume the exchange by all of the holders of Exchangeable Shares for an equal
number of shares of our Common Stock in accordance with the terms of the Exchangeable Shares. Unless otherwise indicated, the address
of each beneficial holder of our Common Stock is our corporate address.
Name of Beneficial Owner
|
|
Shares of Common Stock
Beneficially Owned
|
|
|
% of Shares of Common Stock
Beneficially Owned
|
|
Remi Gaston-Dreyfus (1)(2)
|
|
|
1,680,817
|
|
|
|
28.17
|
%
|
Andre Auberton–Herve (3)
|
|
|
495,939
|
|
|
|
8.24
|
%
|
Olivier Dassault
|
|
|
693,963
|
|
|
|
11.76
|
%
|
Celeste Management SA
|
|
|
664,920
|
|
|
|
11.26
|
%
|
SFP Capital
|
|
|
478,017
|
|
|
|
8.10
|
%
|
Michal Prywata (4)
|
|
|
55,976
|
|
|
|
*
|
|
P. Gerald Malone (5)
|
|
|
50,723
|
|
|
|
*
|
|
Audrey Thevenon (5)
|
|
|
50,723
|
|
|
|
*
|
|
Charles Matine (5)
|
|
|
50,723
|
|
|
|
*
|
|
Joseph Martin (5)
|
|
|
50,723
|
|
|
|
*
|
|
Rich Russo Jr. (6)
|
|
|
86,902
|
|
|
|
1.45
|
%
|
Loren Wass (6)
|
|
|
17,083
|
|
|
|
*
|
|
All directors and executive officers as a group (9 persons)
|
|
|
2,539,609
|
|
|
|
40.37
|
%
|
|
(1)
|
Such shares include Exchangeable Shares for tax purposes. The Exchangeable Shares have the following attributes,
among others:
|
|
·
|
Be, as nearly as practicable, the economic equivalent of the Common Stock as of the consummation of the
Company’s going public transaction;
|
|
·
|
Have dividend entitlements and other attributes corresponding to the Common Stock;
|
|
·
|
Be exchangeable, at each holder’s option, for Common Stock; and
|
|
·
|
Upon the direction of our Board of Directors, be exchanged for Common Stock on the 10-year anniversary
of the first closing of the Company’s 2015 offering, subject to applicable law, unless exchanged earlier upon the occurrence of
certain events.
|
The holders of the Exchangeable Shares,
through The Special Voting Preferred Stock, will have voting rights and other attributes corresponding to the Common Stock.
|
(2)
|
Includes (i) options to acquire 1,667 shares of Common Stock which
have vested or which will vest within 60 days of November 15, 2021, (ii) an aggregate of 17,476 Exchangeable Shares held through Lombard
International Assurance SA, (iii) warrants to purchase an aggregate of 61,465 shares of Common Stock held through Lombard International
Assurance SA and RGD Investissements, (iv) 81,775 shares of our Common Stock owned by Lombard International Assurance SA, and (v) 1,336,419
shares of our Common Stock owned by RGD Investissements. Mr. Gaston-Dreyfus may be deemed to share voting and investment power over the
shares beneficially owned by Lombard International Assurance SA and RGD Investissements.
|
|
(3)
|
Includes (i) warrants to purchase 10,671 shares of Common Stock held
through Star SCI, (ii) an aggregate of 42,385 options to acquire Common Stock held through 4A Consulting and Engineering, (iii) 63,881
options to acquire Common Stock which have vested or which will vest within 60 days of November 15, 2021, (iv) 213,782 shares of our Common
Stock owned by Star SCI, and (v) 10,693 shares of our Common Stock owned by 4A Consulting and Engineering. Mr. Auberton-Herve may be deemed
to share voting and investment power over the shares beneficially owned by Star SCI and 4A Consulting and Engineering.
|
|
(4)
|
Includes 6,000 options to acquire shares of our Common Stock which
have vested or which will vest within 60 days of November 15, 2021.
|
|
(5)
|
Includes 24,293 options to acquire shares of our Common Stock which have vested or will vest within 60 days of
November 15, 2021.
|
|
(6)
|
Represents options to acquire shares of our Common Stock which have vested or which will vest within 60 days
of November 15, 2021.
|
PROPOSAL FOR APPROVAL OF
EXECUTIVE COMPENSATION
(Proposal 2 on Proxy Card and Voting Instruction
Form)
The Dodd-Frank Wall Street
Reform and Consumer Protection Act of 2010, or the Dodd-Frank Act, enables our stockholders to vote to approve, on an advisory (non-binding)
basis, the compensation of our named executive officers as disclosed in this proxy statement in accordance with the rules of the
SEC and commonly referred to as “Say-on-Pay.” The Board has decided that it is a matter of good corporate governance to hold
the advisory vote on compensation once every three years until the next advisory vote on frequency occurs. An advisory vote on the frequency
of stockholder votes to approve executive compensation is required to be held at least once every six years. Accordingly, unless the Board
modifies its policy on the frequency of future votes, we expect to have our next advisory vote on compensation at our 2021 meeting.
As described more fully under
the heading “Compensation of Directors and Executive Officers” in this proxy statement, our executive compensation programs
are designed to attract, motivate and retain our named executive officers who are critical to our success. The programs are designed to
align the interest of our named executive officers with our stockholders and to fairly reward them for creating stockholder value and
achieving our business objectives. We believe that the various elements of our executive compensation program work together to promote
our goal of ensuring that total compensation should be related to our company performance and individual performance.
Stockholders are urged to
read the section of this proxy statement entitled “Compensation of Directors and Executive Officers”, which discusses and
discloses our executive compensation policies, including the Summary Compensation Table which includes tabular and narrative information
about the compensation of our named executive officers. This discussion includes information about the compensation of our named executive
officers and our executive compensation programs for the years ended March 31, 2021 and 2020. Our Board believes that these programs
are effective in implementing our compensation philosophy and in achieving our goals.
We are asking our stockholders
to indicate their support for our executive compensation program as described in this proxy statement. This Say-on-Pay proposal gives
our stockholders the opportunity to express their views on our fiscal year ended March 31, 2021 executive compensation. The vote
is not intended to address any specific item of compensation, but rather the overall compensation of our named executive officers and
the philosophy, policies and procedures described in this proxy statement. Accordingly, we ask our stockholders, on an advisory basis,
to approve the following resolution:
RESOLVED, that the stockholders of Bionik Laboratories Corp. approve, on an advisory basis, the compensation of its named executive officers, as disclosed in the proxy statement for the annual meeting of stockholders for the fiscal year ended March 31, 2022, pursuant to the compensation disclosure rules of the SEC, including the Summary Compensation Table and any related narrative discussion.
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The Say-on-Pay vote is advisory,
and therefore not binding on our Company or our Board. However, our Board values the opinion of our stockholders and to the extent that
there is any significant vote against the compensation of the named executive officers as disclosed in this proxy statement, we will consider
our stockholders’ concerns and our Board will evaluate whether any actions are necessary to address those concerns.
Vote Necessary to Approve Proposal 2
The affirmative vote of a
majority of the voting power of the shares present in person or represented by proxy at the Annual Meeting and entitled to vote is required
to approve our executive compensation program. The Board of Directors unanimously recommends a vote FOR the approval of our executive
compensation program, as described in the “Compensation of Directors and Executive Officers” section of this proxy statement
and proxies received by the Board of Directors will be so voted in the absence of instructions to the contrary.
PROPOSAL FOR
APPROVAL OF FREQUENCY OF SHAREHOLDER VOTE
ON EXECUTIVE COMPENSATION
(Proposal 3 on Proxy Card and Voting Instruction
Form)
The Dodd-Frank Act also requires
that we include in our proxy statement a separate advisory (non-binding) shareholder vote to advise on how frequently we should seek a
Say-On-Pay vote. By voting on this Proposal 3, shareholders may indicate whether they would prefer an advisory vote on the compensation
of our named executive officers once every one, two or three years. We are required under the Dodd-Frank Act to solicit a shareholder
preference regarding the frequency of future advisory votes on executive compensation at least once every six years.
Our Board of Directors believes
that the shareholders should consider our executive compensation once every three years. We believe this will provide shareholders with
a long-term view of our results as they relate to the compensation of our executives, and will promote stability in our compensation policies
and practices. A vote once every three years would also provide our Board of Directors and our Compensation Committee sufficient time
to thoroughly evaluate and respond to shareholders’ input and, if appropriate, effectively implement any changes to our executive
compensation program. We also believe that a three-year vote cycle would reduce the burden on shareholders having to consider this proposal
on an annual basis.
We also understand that arguments
exist in favor of having an annual or bi-annual Say-On-Pay vote. These arguments include the fact that Say-On-Pay votes are a communication
vehicle and communication can be most useful when it is received frequently; that annual or bi-annual Say-On-Pay advisory votes may provide
a higher level of accountability and direct communication between shareholders and our Board of Directors; and the fact that having a
Say-On-Pay vote every year would make it easier to understand whether the shareholder vote pertains to the compensation year immediately
preceding the vote or pay practices from the previous two or three years.
You may cast your vote on
your preferred voting frequency by choosing the option of one year, two years, three years or abstaining from voting.
Vote Necessary to Approve Proposal 3
If a quorum is present at
the meeting, the frequency of vote option (one, two or three years) receiving the highest number of votes will be approved. However, because
this vote is advisory and not binding on our Board of Directors in any way, the Board of Directors may decide that it is in the best interests
of our shareholders to hold an advisory vote on executive compensation with more or less frequency than the option approved by our shareholders.
The Board of Directors unanimously recommends a vote FOR the proposal of “every three years” as the frequency of future shareholder
advisory votes on executive compensation, and proxies solicited by the Board of Directors shall be so voted in the absence of instructions
to the contrary.
PROPOSAL FOR
RATIFICATION OF AUDITORS
(Proposal 4 on Proxy Card and Voting Instruction
Form)
On October 14, 2021,
the Board approved the appointment of MNP LLP as the independent registered public accounting firm to conduct our financial audit for
the fiscal year ending March 31, 2022, and solicits the ratification of this appointment by the stockholders.
Neither MNP LLP, any of its
members nor any of its associates, to the best of our knowledge, has any financial interest in our business or affairs, direct or indirect,
or any relationship with us other than in connection with its duties as independent accountants. Representatives of MNP LLP are expected
to be present at the Annual Meeting, where such representatives will have the opportunity to make a statement if they desire to do so
and are expected to be able to respond to appropriate questions.
Vote Necessary to Ratify Proposal 4
The affirmative vote of a
majority of the voting power of the shares present in person or represented by proxy at the Annual Meeting and entitled to vote is required
for the ratification of the appointment of the independent registered public accounting firm. The Board of Directors recommends
a vote FOR the ratification of appointment of the independent registered public accounting firm as described in this
Proposal Number 4.
LEGAL PROCEEDINGS
From time to time, we may
become involved in various lawsuits and legal proceedings, which arise in the ordinary course of business. However, litigation is subject
to inherent uncertainties, and an adverse result in these or other matters may arise from time to time that may harm business.
We are not currently a party
in any legal proceeding or governmental regulatory proceeding nor are we currently aware of any pending legal proceeding or governmental
regulatory proceeding proposed to be initiated against us that would have a material adverse effect on us or our business.
SECTION 16(a) BENEFICIAL OWNERSHIP
REPORTING COMPLIANCE
Section 16(a) of
the Securities Exchange Act requires the Company’s officers and directors, and persons who beneficially own more than ten (10%)
percent of a class of equity securities registered pursuant to Section 12 of the Exchange Act, to file reports of ownership and changes
in ownership with the Securities and Exchange Commission and the principal exchange upon which such securities are traded or quoted. Reporting
Persons are also required to furnish copies of such reports filed pursuant to Section 16(a) of the Exchange Act with the Company.
Based on our review of the
copies of such forms received by us, and to the best of our knowledge, all executive officers, directors and greater than 10% stockholders
filed the required reports in a timely manner in the fiscal year ended March 31, 2021, except for Mr. Auberton-Herve, who failed
to timely file a Form 4 showing 1 transaction, and Mr. Gaston-Dreyfus, who failed to timely file three Form 4’s showing
a like number of transactions.
PROPOSALS OF STOCKHOLDERS FOR PRESENTATION
AT THE NEXT ANNUAL MEETING OF STOCKHOLDERS
We anticipate that the next annual meeting of stockholders will be
held by December 2022. Any stockholder who desires to submit a proper proposal for inclusion in the proxy materials related to the next
annual meeting of stockholders must do so in writing in accordance with our Amended and Restated Bylaws and Rule 14a-8 of the Exchange
Act, and it must be received at our principal executive offices no later than July 19, 2022 in order to be considered for inclusion in
the proxy statement for the next annual meeting of stockholders. For proposals sought to be included in our proxy statement, the proponent
must be a record or beneficial owner entitled to vote on such proposal at the next annual meeting and must continue to own such security
entitling such right to vote through the date on which the meeting is held.
In order for any proposal
that is not submitted for inclusion in next year’s proxy statement (as described in the preceding paragraph) to be presented directly
at next year’s annual meeting, we must receive written notice of the proposal in a timely manner. If such notice is received, proxies
may be voted at the discretion of management if we advise stockholders in next year’s proxy statement about the nature of the matter
and how management intends to vote on such matter.
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
As a reporting company, we
are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and accordingly file annual reports
on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statements and other information with
the SEC. The public may read and copy any materials filed with the SEC at their Public Reference Room at 100 F Street, N.E., Washington,
DC 20549. Please call the SEC at (800) SEC-0330 for further information on the Public Reference Room. As an electronic filer, our
public filings are maintained on the SEC’s Internet site that contains reports, proxy statements, and other information regarding
issuers that file electronically with the SEC. The address of that website is http://www.sec.gov.
Our common stock is quoted on the OTCQB market
under the symbol “BNKL.”
“HOUSEHOLDING” OF PROXY MATERIALS
When multiple stockholders
have the same address, the SEC permits companies and intermediaries, such as brokers, to deliver a single copy of certain proxy materials
and the Notice of Internet Availability of Proxy Materials (the “Notice”) to them. This process is commonly referred to as
“householding.” The Company does not participate in householding, but some brokers may for stockholders who do not take electronic
delivery of proxy materials. If your shares are held in a brokerage account and you have received notice from your broker that it will
send one copy of the Notice or proxy materials to your address, householding will continue until you are notified otherwise or instruct
your broker otherwise. If, at any time, you would prefer to receive a separate copy of the Notice or proxy materials, or if you share
an address with another stockholder and receive multiple copies but would prefer to receive a single copy, please notify your broker.
The Company promptly will deliver to a stockholder who received one copy of the Notice or proxy materials as a result of householding
a separate copy upon the stockholder’s written or oral request directed to Bionik Laboratories Corp., 80 Coolidge Hill Road, Watertown,
Massachusetts 02472; Telephone: (617) 926-4800; Email: rrusso@bioniklabs.com.
ANNUAL REPORT ON FORM 10-K
A
copy of our Annual Report to the SEC on Form 10-K for the fiscal year ended March 31, 2021, including financial
statements, is available to stockholders without charge upon written request to Rich Russo Jr., Chief Financial Officer and Interim
Chief Executive Officer, at 80 Coolidge Hill Road, Watertown, Massachusetts 02472. A copy of this report is also available through
our website at www.bioniklabs.com or, alternatively, at www.sec.gov.
OTHER MATTERS
The Board knows of no other
business to be presented at the Annual Meeting of stockholders. If other matters properly come before the Annual Meeting, the persons
named in the accompanying form of proxy intend to vote on such other matters in accordance with their best judgment.
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By Order of the Board of Directors
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/s/ Rich Russo Jr.
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DATE: November 17, 2021
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Chief Financial Officer and Interim Chief Executive Officer
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BIONIK LABORATORIES
CORP.
Annual Meeting of
Stockholders
December 17,
2021
Important Notice Regarding the Availability
of Proxy Materials for the Annual Meeting of Stockholders
To Be Held on December 17, 2021
BIONIK LABORATORIES CORP.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD
OF DIRECTORS
The undersigned, revoking all prior proxies, hereby appoints Rich Russo
Jr. and Michal Prywata, and each of them, with full power of substitution, as proxy to represent and vote all shares of Common Stock,
par value $0.001 per share, of Bionik Laboratories Corp. (the “Company”), which the undersigned will be entitled to vote if
personally present at the Annual Meeting of the Stockholders of the Company for the fiscal year ending March 31, 2022 to be held on December
17, 2021, at 9:00 a.m., Eastern time, or any adjournment or postponement thereof, at 80 Coolidge Hill Road, Watertown, Massachusetts 02472,
upon matters set forth in the Notice of Annual Meeting and Proxy Statement for the Annual Meeting of Stockholders dated November 17, 2021,
a copy of which has been received by the undersigned. Each share of Common Stock is entitled to one vote. The proxies are further authorized
to vote, in their discretion, upon such other business as may properly come before the meeting.
When properly executed, this
proxy will be voted in the manner directed herein by the undersigned stockholder.
IF NO DIRECTION IS GIVEN, THIS PROXY WILL BE
VOTED “FOR” EACH OF THE INDIVIDUALS NOMINATED TO BE A DIRECTOR, “FOR” PROPOSAL 2, FOR “THREE YEARS”
WITH RESPECT TO PROPOSAL 3, “FOR” PROPOSAL 4, AND IN ACCORDANCE WITH THE JUDGEMENT OF THE PERSONS NAMED AS PROXIES IN THE
FORM OF PROXY ON SUCH OTHER BUSINESS OR MATTERS WHICH MAY PROPERLY COME BEFORE THE ANNUAL MEETING.
Please check here if you plan to attend the Annual Meeting of Stockholders
on December 17, 2021 at 9:00 a.m. (ET).
PLEASE INDICATE YOUR VOTE ON THE REVERSE SIDE
(Continued and to be signed on Reverse Side)
NOTICE TO HOLDERS OF EXCHANGEABLE SHARES
Annual Meeting of Stockholders of Bionik Laboratories Corp. to be held
on December 17, 2021
Our records show that you hold Exchangeable Shares of Bionik Laboratories
Inc., a Canadian company and an indirect subsidiary of Bionik Laboratories Corp. The Exchangeable Shares provide you with economic and
voting rights that are, as nearly as practicable, equivalent to those of holders of shares of common stock of Bionik Laboratories Corp.,
including the right to attend and vote at meetings of the common stockholders of Bionik Laboratories Corp. Bionik Laboratories Corp. will
be holding an annual meeting (the “Annual Meeting”) of its common stockholders on December 17, 2021:
(1) To
elect seven directors to serve until the next annual meeting of stockholders and until their successors are elected and qualified;
(2) To
consider and vote on an advisory (non-binding) resolution to approve the compensation of our named executive officers;
(3) To
consider and vote on an advisory (non-binding) proposal to determine the frequency with which shareholders of our company shall be entitled
to vote on the compensation of our named executive officers;
(4) To
ratify the appointment of MNP LLP as independent registered public accounting firm for the fiscal year ending March 31, 2021; and
(5) To
transact such other business as may properly come before the Annual Meeting or any adjournment or postponement thereof.
At the Annual Meeting you will have voting rights, based on the number
of Exchangeable Shares you hold. You are permitted to instruct Computershare Trust Company of Canada, the Trustee under a Voting and Exchange
Trust Agreement as to how the Trustee is to vote your Exchangeable Shares at the Annual Meeting. If you do not give voting instructions,
the Trustee will not be entitled to exercise the voting rights attached to your Exchangeable Shares. Alternatively, you may instruct the
Trustee to give you or a person designated by you a proxy to exercise personally the voting rights attached to your Exchangeable Shares.
To instruct the Trustee as to how you wish to exercise your voting rights, you must complete, sign, date and return the enclosed Voting
Instruction Form to the Trustee by 5:00 p.m., Eastern time, on December 16, 2021. The Trustee will not be obligated to act on any instructions
received after that time.
You have the right to revoke any instructions to the Trustee by giving
written notice of revocation to the Trustee or by executing and delivering to the Trustee a later-dated Voting Instruction Form. No notice
of revocation or later-dated Voting Instruction Form, however, will be effective unless received by the Trustee prior to 5:00 p.m., Eastern
time, on December 16, 2021.
Whether or not you plan to
attend the Annual Meeting, please sign, date and return the Voting Instruction Form in the envelope provided in order to ensure that
your Exchangeable Shares will be represented at the Annual Meeting.
Only registered holders of
Exchangeable Shares are permitted to instruct the Trustee as to how to vote their Exchangeable Shares at the Annual Meeting or to attend
and vote at the Annual Meeting in person or by proxy as described above. You may be a beneficial owner of Exchangeable Shares (a “Non-Registered
Holder”) if your Exchangeable Shares are registered either:
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(i)
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in the name of an intermediary (an “Intermediary”) with whom you deal in respect of the Exchangeable Shares, such as, among others, banks, trust companies, securities dealers or brokers and trustees or administrators of trusts; or
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(ii)
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in the name of a clearing agency of which the Intermediary is a participant.
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Bionik Laboratories Corp.
has distributed copies of the Notice of Meeting, the Proxy Statement and this Notice to Exchangeable Shareholders (collectively, the “meeting
materials”) to Intermediaries who are required to forward these meeting materials to Non-Registered Holders unless a Non-Registered
Holder has waived the right to receive them. If you are a Non-Registered Holder who has not waived the right to receive meeting materials
you will be given either:
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(i)
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a voting instruction form, which has already been signed by the Intermediary
(typically by a facsimile, stamped signature) which specifies the number of Exchangeable Shares beneficially owned by you but which is
otherwise uncompleted. This voting instruction form need not be signed by you. In this case, if you wish to direct the voting of the Exchangeable
Shares held by you or attend and vote at the Annual Meeting (or have another person attend and vote on your behalf) you should properly
complete the voting instruction form and deposit it with the Trustee prior to 5:00 p.m., Eastern time, on December 16, 2021; or
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(ii)
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a voting instruction form, which must be completed and signed by you in accordance with the directions on the voting instruction form.
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The purpose of these procedures
is to permit you, as a Non-Registered Holder, to direct the voting of the Exchangeable Shares you beneficially own or to attend and vote
at the Annual Meeting, in person or by proxy. A Non-Registered Holder generally may revoke a voting instruction form given to an Intermediary
by providing written notice to the Intermediary in a reasonable time period prior to the Annual Meeting. Non-Registered Holders should
carefully follow the instructions of their Intermediaries and their service companies and contact their Intermediaries promptly if they
need assistance.
VOTING INSTRUCTION FORM
Annual Meeting of Stockholders of Bionik Laboratories Corp. to be held
on December 17, 2021
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1.
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We are sending you the enclosed proxy related materials that relate to the Annual Meeting of Stockholders of Bionik Laboratories Corp. for the fiscal year ending March 31, 2022. You are receiving these materials because you are a holder, or the intermediary identified above is a holder on your behalf, of Exchangeable Shares of Bionik Laboratories Inc., an indirect subsidiary of Bionik Laboratories Corp., and you are entitled to vote the Exchangeable Shares at the meeting. In order to vote, you must instruct Computershare Trust Company of Canada (the “Trustee”) to vote on your behalf by completing this Voting Instruction Form (“VIF”) or attend the meeting in person.
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2.
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We are prohibited from voting these securities on any of the matters to be acted upon at the meeting without your specific voting instructions. In order for these securities to be voted at the meeting, it will be necessary for us to have your specific voting instructions. Please complete and return the information requested in this VIF to provide your voting instruction to us promptly.
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3.
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If you wish to attend the meeting in person or appoint some other person or company, who need not be a shareholder, to attend and act on your behalf at the meeting or any adjournment or postponement thereof, please insert your name(s) or the name of your chosen appointee in the space provided (please see reverse). You may also appoint a designated agent or representative of Bionik Laboratories Corp. to act on your behalf at the meeting.
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4.
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This VIF should be signed by you in the exact manner as your name appears on the VIF. If these voting instructions are given on behalf of a body corporate set out the full legal name of the body corporate, the name and position of the person giving voting instructions on behalf of the body corporate and the address for service of the body corporate.
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5.
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If this VIF is not dated, it will be deemed to bear the date on which it is mailed by the Trustee to you.
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6.
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When properly signed and delivered, securities represented by this VIF will be voted as directed by you; however, if such a direction is not made in respect of any matter, the exchangeable shares you hold, or that are held on your behalf, will not be voted.
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7.
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This VIF confers discretionary authority on the appointee to vote as the appointee sees fit in respect of amendments or variations to matters identified in the Notice of Meeting or other matters as may properly come before the meeting or any adjournment or postponement thereof.
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8.
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Your voting instructions will be recorded on receipt of the VIF and a legal form of proxy will be submitted on your behalf.
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9.
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By providing voting instructions as requested, you are acknowledging that you are the beneficial owner of, and are entitled to instruct use with respect to the voting of, the Exchangeable Shares.
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10.
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If you have any questions regarding the enclosed documents, please contact the representative who services your account.
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11.
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This VIF should be read in conjunction with the accompanying documentation provided by management of Bionik Laboratories Corp.
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VIF’s submitted must be received by 5:00
p.m. Toronto Time
On December 16, 2021
You must return this VIF by mail in the envelope provided to you to
the following address:
Computershare Trust Company of Canada
Attention: Lisa M. Kudo and Raji Sivalingam
11th Floor, 100 University Avenue
Toronto, Ontario M5J 2Y1
Voting by internet or telephone are not available,
and unless your VIF is received by the Trustee by the time and date stated above, the Exchangeable Shares you hold, or that are held on
your behalf, will not be voted.
Appointment of Proxyholder
I/We,
being holder(s) of exchangeable shares (“Exchangeable Shares”) of Bionik Laboratories Corp. hereby appoint:
Computershare Trust Company of Canada (the “Trustee”)
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OR
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If you wish to attend in person or appoint someone else to attend on your behalf, print your name or the name of your appointee in this space (see Note #3 on reverse).
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As my/our appointee to attend, act and to vote in accordance with the
following direction and on all other matters that may properly come before the Annual Meeting of Stockholders of Bionik Laboratories Corp.
to be held at 80 Coolidge Hill Road, Watertown, Massachusetts 02472 on December 17, 2021 at 9:00 a.m., Eastern Time, and at any adjournment
or postponement thereof. Management and directors of Bionik Laboratories Corp. are not currently aware of any other matters to be presented
at the meeting.
Executed proxies that contain no instructions
will be voted FOR each of the individuals nominated to be a director, FOR the resolution approving the compensation of our
named executive officers as disclosed in the proxy statement, to hold the advisory vote on the compensation of our named executive officers
every THREE YEARS, FOR the ratification of the appointment of MNP LLP as our independent registered public accounting firm
for the fiscal year ending March 31, 2022, and in accordance with the judgment of the persons named as proxies in the form of proxy
on such other business or matters which may properly come before the annual meeting. Other than the matters set forth in the Notice of
Annual Meeting accompanying this proxy statement, we know of no matters to be brought before the Annual Meeting.
IMPORTANT
NOTE: IF NO DIRECTION IS MADE, FOR, OR AGAINST, OR ABSTAIN, THE HOLDER’S EXCHANGEABLE SHARES WILL NOT BE VOTED.
x
Please mark your votes as in this example using dark ink only.
1. The
election of the following nominees to the Company’s Board of Directors to serve until the next Annual Meeting of Stockholders: Andre
Auberton-Herve, Remi Gaston-Dreyfus, P. Gerald Malone, Joseph Martin, Charles Matine, Audrey Thevenon, and Michal Prywata.
¨
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FOR ALL NOMINEES
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¨
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WITHHOLD AUTHORITY to vote for all nominees
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WITHHOLD AUTHORITY FOR:
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Andre Auberton-Herve
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Remi Gaston-Dreyfus
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P. Gerald Malone
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¨
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Joseph Martin
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¨
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Charles Matine
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¨
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Audrey Thevenon
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¨
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Michal Prywata
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¨
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INSTRUCTION: To withhold authority to vote
for any individual nominee(s), mark “WITHHOLD AUTHORITY” and check the box next to each nominee you wish to withhold authority.
2. The
approval of an advisory (non-binding) resolution to approve the compensation of named executive officers a non-binding advisory proposal
approving a resolution supporting the compensation of named executive officers.
¨ FOR
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¨ AGAINST
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¨ ABSTAIN
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3. To
recommend, on an advisory (non-binding) basis, the frequency with which shareholders shall be entitled to vote on the compensation of
named executive officers’
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¨ ONE YEAR
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¨ TWO YEARS
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¨ THREE YEARS
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¨ ABSTAIN
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4. The
ratification of MNP, LLP as the Company’s independent public accountants for the fiscal year ending March 31, 2021.
¨ FOR
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¨ AGAINST
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¨ ABSTAIN
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Authorized
Signature(s) – This section must be completed for your instructions to be executed.
If you are voting on behalf of a corporation or
another individual you may be required to provide documentation evidencing your power to sign this VIF with signing capacity stated.
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___/___/___
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