UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
SCHEDULE 14A
 
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No.     )
 
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Bionik Laboratories Corp.
(Name of Registrant as Specified In Its Charter)
 
 
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
 
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BIONIK LABORATORIES CORP.

 

NOTICE OF ANNUAL MEETING OF STOCKHOLDERS

TO BE HELD ON OCTOBER 5, 2020DECEMBER 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 483 Bay Street, N105, Toronto, Ontario, Canada M5G 2C980 Coolidge Hill Road, Watertown, Massachusetts 02472, on October 5, 2020Friday, December 17, 2021 at 9:00 a.m., Eastern Time. The Annual Meeting will be held for the following purposes:

 

(1)To elect eightseven 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 our independent registered public accounting firm for the fiscal year ending March 31, 2021;

(3)To approve an amendment to the Company’s Amended and Restated Certificate of Incorporation to decrease the authorized number of shares of (i) common stock of the Company from 500,000,000 to 13,000,000, and (ii) preferred stock of the Company from 10,000,000 to 5,000,000;2022; and

 

(4)(5)To transact such other business as may properly come before the Annual Meeting or any adjournment or postponement thereof.

 

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 September 4, 2020November 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"(“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 (defined as being within six feet for 15 minutes or more without facial covering) 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, includingwhich 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) by mail.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.

 

 By Order of the Board of Directors
  
 /s/ Eric DusseuxRich Russo, Jr.
 Chief ExecutiveFinancial Officer and DirectorInterim Chief Executive Officer

Toronto, Ontario

September [__], 2020Watertown, Massachusetts

November 17, 2021

 

 

 

BIONIK LABORATORIES CORP.

 

PROXY STATEMENT FOR THE

ANNUAL MEETING OF STOCKHOLDERS

October 5, 2020December 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 483 Bay Street, N105, Toronto, Ontario, Canada M5G 2C980 Coolidge Hill Road, Watertown, Massachusetts 02472 on October 5, 2020December 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 September [__], 2020.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"(“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 (defined as being within six feet for 15 minutes or more without facial covering) 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, includingwhich 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 September 4, 2020November 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.

 

1

 

 

Voting Your Shares

 

Common Stock

 

Holders of our Common Stock may elect to vote in one of three methods:

 

·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.

 

·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.

 

·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.

 

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:

 

·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 October 4, 2020,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.

 

·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.

 

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.

 

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Quorum and Votes Required to Approve Proposals

 

On the Record Date, there were a total of 5,009,1515,790,920 shares of Common Stock and 117,683112,440 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:

 

·FOR each of the individuals nominated to be a director;

 

·FOR the resolution approving the compensation of our named executive officers as disclosed in this proxy statement;

·To hold the advisory vote on the compensation of our named executive officers every THREE YEARS;

·FOR the ratification of appointment of MNP LLP as our independent registered public accounting firm for the fiscal year ending March 31, 2021;2022; and

 

·FOR the resolution approving the amendment of our Amended and Restated Certificate of Incorporation to decrease the authorized number of shares of (i) common stock of the Company from 500,000,000 to 13,000,000, and (ii) preferred stock of the Company from 10,000,000 to 5,000,000; 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.

 

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:

 

·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.

 

·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.

·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.

·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.

 

·The vote on the amendment of our Amended and Restated Certificate of Incorporation to decrease the authorized number of shares of (i) common stock of the Company from 500,000,000 to 13,000,000, and (ii) preferred stock of the Company from 10,000,000 to 5,000,000 will be approved if it receives the affirmative vote of the holders of a majority of the shares of Common Stock and Exchangeable Shares, voting together as a single class, outstanding and entitled to vote on the matter, either in person or by proxy, at the Annual Meeting. With regard to this resolution, an abstention, a “broker non-vote,” or a failure to submit a proxy card or vote at the Annual Meeting will have the same effect as voting “AGAINST” this proposal.

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 Leslie Markow,Rich Russo Jr., Chief Financial Officer and Interim Chief Executive Officer, at 483 Bay Street, N105, Toronto, Ontario Canada M5G 2C9.80 Coolidge Hill Road, Watertown, Massachusetts 02472.

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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 October 4, 2020,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.

 

4

ELECTION OF DIRECTORS

 

(Proposal 1 on Proxy Card and Voting Instruction Form)

 

The Board currently consists of eightseven 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 eightseven 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 Age Position
Andre Auberton-Herve 5859 Chairman of the Board
Eric Dusseux52Chief Executive Officer and Director
Remi Gaston-DreyfusGaston -Dreyfus 65 Director
P. Gerald Malone 70 Director
Joseph Martin 7273 Director
Charles Matine 62 Director
Audrey Thevenon 4243 Director
Michal Prywata 29 Chief Technology Officer and Director

 

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.

Dr. Eric Dusseux: Chief Executive Officer and Director. Dr. Dusseux has served as the Company’s Chief Executive Officer since September 1, 2017 and has served as a director since July 22, 2017. He was previously the President Europe at Auregen BioTherapeutics SA and was a director at Auregen BioTherapeutics Inc., which is translating 3D bioprinting technology for innovative treatments for patients with rare disorders, since February 2017. Prior to that, from November 2016 through January 2017, Dr. Dusseux was President Europe at Bemido SA, a family office. From September 2012 to October 2016, Dr. Dusseux was an Executive Committee Member in the Corporate Strategy Department of Sanofi Pasteur SA, the vaccines division of Sanofi, a global healthcare leader, where he led corporate strategy, business intelligence, and international business development. He has also served in key roles at GlaxoSmithKline Biologicals from January 2008 to June 2012, leading product development and business growth strategy. Dr. Dusseux also gained significant experience providing strategic advice for numerous pharmaceutical, medical device, payer and biotechnology clients, while working for the Boston Consulting Group from 2002 to 2007. Dr. Dusseux is a Medical Doctor, specializing in Public Health. Dr. Dusseux also holds a Master of Science in Physical Chemistry and is a graduate of the French Business School H.E.C. in Paris (MBA, Isa). We believe that Dr. Dusseux is qualified as a board member of the Company because of his substantial strategic and leadership experience within the healthcare industry.

5

 

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 global providerpublicly traded life sciences company, providing services and products to help drive innovation, discovery, development and delivery of automation, vacuum and instrumentation solutions. He alsocritical new therapies. Additionally, Mr. Martin currently serves as a directoron the board of Collectors Universe,Allegro MicroSystems, Inc., a third-party grading and authentication service for high-value collectibles, of Allegro Microsystems, apublicly traded manufacturer of high-performancehigh performance power and semiconductors, forwhere he is the automotive market, ChipPAC Inc.Chairman of the Audit Committee. Previously, Mr. Martin served as Co-Chairman of Fairchild Semiconductor Corporation, and Soitec Inc., andthe Vice-Chairman of Fairchild’s board of directors. Mr. Martin also previously served on the boards of Fairchild Semiconductor. In 2000 CFO Magazine awardedSynQor, 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 the CFO of the Year award for turnaround operations.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.

 

6

Michal Prywata: Chief Technology Officer and Director. Mr. Prywata is the co-founder of Bionik Canada and has served as ourBionik’s Chief Technology Officer sincefrom 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 hashad 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 and his current executive position with 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 September [__], 2020November 15, 2021 and certain other information about them are set forth below:

 

Name Age Position
Rich Russo, Jr. 
Eric Dusseux52Chief Executive Officer and Director
Michal Prywata29Chief Technology Officer and Director
Leslie Markow5941 Chief Financial Officer and Interim Chief Executive Officer
Loren Wass 5859 Chief Commercial Officer

 

Eric Dusseux:Rich Russo Jr: Chief Financial Officer and Interim Chief Executive Officer and Director.Officer. Biographical information regarding Mr. Dusseux is set forth under “Election of Directors.”

Michal Prywata: Chief Technology Officer and Director. Biographical information regarding Mr. Prywata is set forth under “Election of Directors.”

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Leslie Markow: Chief Financial Officer. Ms. MarkowRusso Jr. has served as the Company’s Chief Financial Officer since September 2014. She isNovember 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 CA in Canada, a US CPA (Illinois)CPA. From 2017-2020, Mr. Russo, Jr. served as Vice President of Finance and Chartered Director. From 2002 to 2004 and since 2010, Ms. Markow has provided outsourced CFO, Controller and financial services on a part-time basis to numerous public and private companies. In addition, in 2012-2013, Ms. Markow was theU.S. Chief Financial Officer of Stewardship Ontario,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 supply chain operatorclinical 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 Blue Boxthese roles, Mr. Russo, Jr. was responsible for all finance activities and Orange Drop Programs for industrySEC 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 Province of Ontario. In 2010-2012, Ms. Markow was the Chief Financial Officer of Blue Ocean NutraSciences Inc. (formerly Solutions4CO2 Inc.), a public CO2 solution industrial company. From 2004 to 2010, Ms. Markow was the Director of Client Service for Resources Global Professionals, a NASDAQ-listed global consulting firm. From 1991-2002, she held various positions at SunOpta Inc. a TSX-NASDAQ listed company, which at that time was named Stake Technology Ltd. and was an industrial technology manufacturer, including as Chief Administrative Officer, Vice-President Regulatory Reporting & Compliance, Chief Financial Officer and Vice-President–Finance and Controller. Ms. Markow started her career in 1983 with predecessors of PricewaterhouseCoopers, ultimately holding a position as Senior Audit Manager and in 1991, she moved to SunOpta Inc. Ms. Markow is a member of the Board of Directors and Chairperson of the Audit Committee of Jemtec Inc., a Canadian public company that sells monitoring hardware and software. She also is a member of Financial Executives Canada, where she is a past National Board Director, Toronto Board Director, Toronto Chapter President and the winner of the Toronto Leadership Award, and is a faculty member of The Directors College, which is connected with McMaster University.assurance group.

Loren Wass: Chief Commercial Officer. Mr. Wass has served as our Chief Commercial Officer since September 3, 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 Leslie Markow,Rich Russo Jr., Chief Financial Officer 483 Bay Street, N105, Toronto, Ontario, Canada M5G 2C9;and Interim Chief Executive Officer, 80 Coolidge Hill Road, Watertown, Massachusetts 02472; telephone: (416) 640-7887 x 508,(617) 926-4800, email: lm@bioniklabs.comrrusso@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 Leslie Markow,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 September [__], 2020November 15, 2021 is comprised of Messrs. Auberton-Herve, Dusseux, 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.board of directors.

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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 SECSecurities 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, 2020,2021, our full Board met 7nine times and acted by unanimous written consent 4four times. No director who served as such in the fiscal year ended March 31, 20202021 attended less than 85%approximately 89% of the full board meetings held during such period, except for one director who attended approximately 71%77% of the full 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'sBoard’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, 20212022 were recommended and approved by our independent directors.

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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'snominee’s name and qualifications for Board membership and should be addressed to: Leslie Markow,Rich Russo Jr., Chief Financial Officer and Interim Chief Executive Officer, Bionik Laboratories Corp., 483 Bay Street, N105, Toronto, Ontario, Canada M5G 2C9.80 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'sindividual’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.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.

 

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Under such definitions, Messrs. Martin, Malone, Matine, Gaston-Dreyfus and Dr. Thevenon are considered independent directors.

 

Audit Report of the Board of DirectorsAudit 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 audited consolidated financial statements of Bionik Laboratories Corp. for the fiscal year ended March 31, 2020, with management and have reviewed related written disclosures of2021 audited by MNP LLP, our independent accountantsas 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 (Codification of Statements(The Auditor’s Communication with Those Charged with Governance). The Audit Committee has also discussed with MNP LLP its report on Auditing Standards, AU Section 380), as amended, with respect to those statements. We have reviewedinternal control over financial reporting, has received the written disclosures and the letter from MNP LLP required by regulatoryPublic Company Accounting Oversight Board (PCAOB) Ethics and professional standardsIndependence Rule 3526, Communication with Audit Committees Concerning Independence (Rule 3526), and havehas discussed with MNP LLP its independence in connection with its audit of our most recent financial statements. independence.

Based on thisupon such review and these discussions, the Audit Committee recommended to the Board of Directors, recommendedand the Board approved the recommendation, that the audited financial statements be included in thisthe Company’s Annual Report on Form 10-K for the fiscal year endedending March 31, 2020.2021 for filing with the SEC.

 

We have also reviewed the various fees that we paid or accrued to MNP LLP during the fiscal years ended March 31, 2020 and 2019 for services they rendered in connection with our annual audits and quarterly reviews, as well as for any other non-audit services they rendered.

AUDIT COMMITTEE

P. Gerald Malone
Joseph Martin
Charles Matine

 

The following table showsforegoing Audit Committee Report shall not be deemed incorporated by reference into any filing under the fees for professional services renderedSecurities 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 MNP LLP for the audit of our financial statements for the years ended March 31, 2020 and 2019 and fees billed for other services rendered by MNP LLP during those periods:reference into such filings.

 

Fee Category 2020  2019 
Audit Fees $100,138  $73,542 
Audited related fees  69,171   - 
Tax Fees  26,703   21,580 
All Other Fees  13,915   211,900 
Total Fees $209,927  $307,022 

Audit fees consist of fees billed for professional services rendered for the audit of our financial statements and review of the financial statements included in quarterly reports and services that are normally provided by the above auditors in connection with statutory and regulatory fillings or engagements. Audit-related fees consist of fees billed for professional services rendered for the review of SEC filings or other reports containing the audited financial statements. 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.

Pre-Approval Policies and Procedures

 

Our Board is in the processboard of directors has not adopting a policy on pre-approval of audit and permissible non-audit services.

 

The Board of Directors:PRINCIPAL ACCOUNTING FEES AND SERVICES

 

Andre Auberton-Herve, Chairman
Eric Dusseux
Remi Gaston-Dreyfus
P. Gerald Malone
Joseph Martin
Charles Matine
Audrey Thevenon
Michal PrywataWe 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:

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 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 Officerchief 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 Officerchief executive officer the responsibility for reviewing the compensation of our named executive officers other than the Chief Executive Officer.chief executive officer. However, any recommendations by the Chief Executive Officerchief 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		 Non-Equity
Incentive Plan
Compensation		 All Other
Compensation		 Total  Salary  Bonus  Stock
Awards		  Option
Awards (3)		  

Non-Equity
Incentive Plan

Compensation

  All Other
Compensation		  Total 
Position Year (1) ($) ($)(2) ($) (3)($) ($) ($) ($)  Year (1)  ($)  ($)(2)  ($)  ($)  ($)  ($)  ($) 
Eric Dusseux(4)  2020 375,850 225,510 –  671,140 – 37,940 1,310,440   2021   379,203(5)  147,016(5)  –   --   –   7,640   533,859 
Chief Executive Officer (CEO)  2019 381,158 225,564 –  363,714 – 61,133 1,031,769 
Michal Prywata  2020 210,000 12,597 –  – – 13,264 235,861 
Chief Technology Officer  2019 210,000 12,600 –  – – 10,836 233,436 
Leslie Markow  2020 210,000 31,492 –  20,476 – 13,343 275,311 
Chief Financial Officer  2019 210,000 31,500 –  – – 10,968 252,468 
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)  2020 144,071 – –  14,010 – 1,000 159,071   2021   246,875(8)  11,667(8)  –   --   –   1,000   259,542 
Chief Commercial Officer (4)                     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)“2020”2021” represents the fiscal year ended March 31, 20202021 and “2019”“2020” represents the fiscal year ended March 31, 2019.2020.
(2)Reflects bonus amounts paid in the fiscal years ended March 31, 20202021 and March 31, 20192020 for bonuses earned in the fiscal years ended March 31, 20192020 and March 31, 2018,2019, respectively.
(3)For assumptions made in such valuation, see Note 10 to the Company’s audited consolidated financial statements included in the Company’sour Annual Report on Form 10-K for the fiscal year ended March 31, 2020, commencing on page F-19.2021.
(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.


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 serves as our Chief Executive Officer (the “Dusseux Employment Agreement”). Under the Dusseux Employment Agreement, Dr. Dusseux will receive 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.

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, which grant is required to be made as soon as practicable following September 1, 2017. The exercise price of the option is $0.161, 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:

12(8)

·50% in 5 equal annual installments on eachIncludes $50,000 which represents deferred salary amounts and $11,667 of the five anniversariesdeferred bonuses. The obligations of the date of the issuance of the option;which have been forgiven and satisfied and personally assumed by Remi Gaston-Dreyfus, a director.
·(9)50% in 5 equal separate tranches annually based on Dr. Dusseux’s achievementMr. Prywata resigned as an executive officer as 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.April 13, 2021.
(10)Ms. Markow resigned effective January 29, 2021 from her Chief Financial Officer role.

 

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).

Dr. Dusseux is also entitled to receive a target annual cash bonus of up to 50% of base salary, based on measurable performance goals to be mutually agreed upon between Dr. Dusseux and the Compensation Committee of the Board each year. Dr. Dusseux earned 80% of his maximum bonus for the fiscal year ended March 31, 2020, which is expected to be paid at a later date yet to be determined. The Compensation Committee and the Board of Directors approved performance goals for purposes of Dr. Dusseux’s potential bonus for the fiscal year ending March 31, 2021, relating to revenue targets, the Company’s business continuity plans, gross margin targets, launching the InMotion ConnectTM and obtaining at least one sale, addressing the Company’s China venture and next steps, and new territory sales.

Dr. Dusseux is entitled to reimbursement for all reasonable expenses actually and properly incurred by him in connection with the performance of his duties, including reimbursement for hotel and meal related expenses in the Toronto and Boston area, and other locations globally as required for business needs. Dr. Dusseux is also entitled to reimbursement of the costs of immigration and annual tax compliance and an annual executive medical provided by Medcan or similar supplier over the time he is employed. Dr. Dusseux was also entitled to reimbursement of housing costs of up to $5,000 per month for 24 months, which ended on September 30, 2019.

In the event that Dr. Dusseux employment is terminated as a result of death, Dr. Dusseux’s estate would be entitled to receive the annual salary and a pro-rata annual bonus earned up to the date of death. In addition, all vested options as of the date of death would continue in full force and effect, subject to the terms and conditions of the Equity Incentive Plan.

In the event that Dr. Dusseux’s employment is terminated as a result of disability, Dr. Dusseux would be entitled to receive the annual salary, a portion of the annual bonus earned up to the date of disability and expenses incurred up to the date of termination. In addition, all vested options as of the date of termination due to disability would continue in full force and effect, subject to the terms and conditions of the Equity Incentive Plan. Dr. Dusseux would also be entitled to receive reasonable expenses incurred by Dr. Dusseux in relocating to France.

In the event that Dr. Dusseux’s employment is terminated by the Company for cause Dr. Dusseux would be entitled to receive his annual salary, benefits and expenses incurred up to the date of termination.

In the event that Dr. Dusseux’s employment is terminated by the Company without cause, he would be entitled to receive 12 months’ pay plus one month for each year of service. Payment of pro-rata bonus for the fiscal year up to the date of termination will also be paid , as well as payment of a lump sum amount in lieu of bonus for the twelve (12) month period following the date of termination, plus an additional month for every completed year of service. Dr. Dusseux would also be entitled to receive reasonable expenses incurred by Dr. Dusseux in relocating to France.

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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.

Michal Prywata

Bionik Canada entered into an employment agreement with Michal Prywata on July 7, 2014, pursuant to which he serves as Bionik Canada’s Chief Operating Officer on an indefinite basis, subject to the termination provisions described in the agreement. Pursuant to the terms of the agreement, Mr. Prywata has received an annual base salary of $210,000 since February 26, 2015. The salary is reviewed on an annual basis to determine potential increases based on Mr. Prywata’s performance and that of the Company. On June 29, 2017, the Company changed his title to Chief Technology Officer. In April 2020, Mr. Prywata agreed to a salary deferral of 30% because of our response to the COVID-19 pandemic.

Mr. Prywata is also entitled to receive a target annual cash bonus of up to 30% of base salary. Mr. Prywata is further entitled to a cash and option bonus based on a per patent creation basis, as determined by the Board of Directors. Mr. Prywata earned 50% of his maximum bonus for the fiscal year ended March 31, 2020, which is expected to be paid at a later date yet to be determined.

In the event Mr. Prywata’s employment is terminated as a result of death, Mr. Prywata’s estate would be entitled to receive the annual salary and a portion of the annual bonus earned up to the date of death. In addition, all vested options and warrants as of the date of death would continue in full force and effect, subject to their terms and conditions.

In the event Mr. Prywata’s employment is terminated as a result of disability, Mr. Prywata would be entitled to receive the annual salary, benefits, a portion of the annual bonus earned up to the date of disability and expenses incurred up to the date of termination.

In the event Mr. Prywata’s employment is terminated by the Company for cause, Mr. Prywata would be entitled to receive his annual salary, benefits and expenses incurred up to the date of termination.

In the event Mr. Prywata’s employment is terminated by the Company without cause, he would be entitled to receive 12 months’ pay and full benefits, plus one month for each year of service. Furthermore, Mr. Prywata will have six months after termination to exercise all vested options in accordance with the terms of the 2014 Incentive Plan. All unvested options would immediately forfeit upon such notice of termination.

The agreement contains customary non-competition and non-solicitation provisions pursuant to which Mr. Prywata agrees not to compete and solicit with the Company. Mr. Prywata also agreed to customary terms regarding confidentiality and ownership of intellectual property.

Leslie N. Markow

Bionik Canada entered into an employment agreement with Leslie Markow on September 3, 2014, pursuant to which she serves as our Chief Financial Officer on a part-time, indefinite basis, subject to the termination provisions described in the agreement. On September 16, 2015, Ms. Markow was promoted to full time. Pursuant to the terms of the agreement, as amended, Ms. Markow receives an annual base salary of $210,000 payable semi-monthly in arrears. The salary is reviewed on an annual basis to determine potential increases based on Ms. Markow’s performance and that of the Company. Ms. Markow is also entitled to receive a target annual cash bonus of up to 30% of base salary, and a grant of options in an amount to be determined at the price of the Company’s going public transaction, upon the closing of the Company’s going public transaction, to vest over three years in equal annual installments. In April 2020, Ms. Markow agreed to a salary deferral of 30% as a result of our response to the COVID-19 pandemic. Ms. Markow earned 60% of her maximum bonus for the fiscal year ended March 31, 2020, which is expected to be paid at a later date yet to be determined.

14

In the event Ms. Markow’s employment is terminated as a result of death, Ms. Markow’s estate would be entitled to receive the annual salary and a portion of the annual bonus earned up to the date of death. In addition, all vested options and warrants as of the date of death would continue in full force and effect, subject to the terms and conditions of the plan.

In the event Ms. Markow’s employment is terminated as a result of disability, Ms. Markow would be entitled to receive the annual salary, benefits, a portion of the annual bonus earned up to the date of disability and expenses incurred up to the date of termination.

In the event Ms. Markow’s employment is terminated by the Company for cause, Ms. Markow would be entitled to receive her annual salary, benefits and expenses incurred up to the date of termination.

In the event Ms. Markow’s employment is terminated by us without cause, or she decides to leave the Company, she would be entitled to receive six months, but no more than nine months’ pay and full benefits. Furthermore Ms. Markow will have six months after termination to exercise all vested options in accordance with the terms of the plan. All unvested options would immediately forfeit upon such notice of termination.

The agreement contains customary non-competition and non-solicitation provisions pursuant to which Ms. Markow agrees not to compete and solicit with the Company. Ms. Markow also agreed to customary terms regarding confidentiality and ownership of intellectual property.

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. Mr. Wass earned 20% of his maximum bonus for the fiscal year ended March 31, 2020, which is expected to be paid at a later date yet to be determined.

In the event Mr. Wass’ employment is terminated as a result of death, Mr. Wass’ estate would be entitled to receive any earned base salary and accrued vacation earned up to the date of death.

In the event Mr. Wass’ employment is terminated as a result of disability (as defined in the Wass Employment Agreement), Mr. Wass would be entitled to receive the annual salary, accrued vacation, and benefits through the date of termination.

In the event Mr. Wass’ employment is terminated by the Company for cause, as defined in the Wass Employment Agreement, Mr. Wass would be entitled to receive his unpaid base salary earned up to the date of termination.

In the event Mr. Wass’ employment is terminated by the Company without cause, he would be entitled to receive 2 months’ salary, plus accrued vacation.

Mr. Wass may terminate the Wass Employment Agreement and his employment at any time, for any reason, provided that he provides the Company with 30 days’ prior written notice. In case of “good reason” (as defined in the Wass Employment Agreement), the Company shall pay to Mr. Wass: (i) 2 months’ salary; and (ii) accrued vacation time if any; provided that the Company shall not be required to pay the 2 months’ salary in the event the Company elects to enforce the non-competition provisions of the Wass Employment Agreement and pays to Mr. Wass as a result of such enforcement, no less than that amount in base salary.

15

The Wass Employment Agreement contains customary non-competition, non-solicitation, and non-disparagement provisions in favor of the Company. Mr. Wass also agreed to customary terms regarding confidentiality and ownership of intellectual property.

 

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, 2020.


Option Awards2021.

 

Name 

Number of
Securities
Underlying
Unexercised
Options

Exercisable

  

Number of
Securities
Underlying
Unexercised
Options

Un-Exercisable

  Option
Exercise
Price		  

Option

Expiration

Date

Eric Michel Dusseux  20,361(3)  20,357(3) $24.15  September 1, 2027
   2,222(4)  1,111(4) $23.25  January 24, 2025
   40,000(5)     $9.735  April 19, 2028
   73,904(1)  39,951(1) $3.16  May 31, 2026
   19,293(2)     $3.595  July 26, 2026
   19,293(2)  77,173(2) $3.595  July 26, 2026
               
Michal Prywata  6,606(6)  -  $34.50  July 1, 2021
   2,667(7)  -  $150.00  December 14, 2022
   2,222(4)  1,111(4) $23.25  January 24, 2025
               
Leslie N. Markow  944(8)  -  $34.50  February 17, 2022
   2,667(9)  -  $183.00  November 24, 2022
   1,333(4)  667(4) $23.25  January 24, 2025
   4,934(1)  2,466(1) $3.16  May 31, 2026
               
Loren Wass      5,000(10) $3.20  September 3, 2025

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.(1)On May 26, 2019,Pursuant to a Separation Agreement, dated as of July 14, 2021, with Dr. Dusseux, waspursuant 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 113,855to Dr. Dusseux shall continue in accordance with their terms, except that all unvested options as of such separation date have lapsed and Ms. Markow was granted 7,400 options which vest one third immediately, one third 6 months after grant and one third 12 months after grant.shall not be exercisable.
2.On July 26, 2019, Dr. Dusseux was granted 19,293 options which immediately vested and 96,466 which vests over time and based on performance, between September 1, 2019 and September 1, 2021.
3.(2)On September 1, 2017, we issued 40,718 options to Dr. Dusseux. 20,36127,145 options have vested and 50% of the remaining options vest based on performance and 50% vest annually over 5 years.
4.On January 24, 2018, the Company granted 3,334 options to Dr. Dusseux, 3,334 options to Mr. Prywata, and 2,000 options to Ms. Markow that vest equally on January 24, 2019, 2020 and 2021.
5.On April 19, 2018 we issued 40,000 options to Dr. Dusseux. The options vested on the grant date and expire in 10 years.
6.(3)On July 26, 2019, Dr. Dusseux was granted 96,466 which vests over time and based on performance, between September 1, 2014, Bionik Canada issued 6,6062019 and September 1, 2022.
(4)Upon Mr. Prywata’s resignation in April 2021, these options (adjusted for post-going public transaction) topreviously granted remain exercisable as Mr. Prywata with a termstill serves on our Board of 7 years, which vested May 27, 2015. All options were issued subjectDirectors.
(5)The remaining shares will vest 100% at November 30, 2021.
(6)Pursuant to and contingent on the successful consummationterms of the Company’s going public transaction and related financing,2014 Equity Incentive Plan, upon her resignation from the Company, which took place on February 26, 2015. Accordingly, suchwas effective January 29, 2021, Ms. Markow forfeited all shares underlying these options are deemed issuedthat were exercisable as of February 26, 2015.April 29, 2021.
7.(7)On December 14, 2015, we issued 2,667 options to Mr. Prywata thatThe remaining shares vest equally over three yearsas follows: 1,667 on the anniversary date starting December 14, 2016. As of March 31, 2020, all options are fully vestedSeptember 3, 2021 and expire December 14,1,666 on September 3, 2022.
8.On February 17, 2015, we issued 944 options to Ms. Markow, that vested one-third immediately and two-thirds over the next two anniversary dates with an expiry date of seven years.

 

16

 

9.On November 24, 2015, we issued 2,667 options to Ms. Markow, that vest equally over three years on the anniversary date starting November 24, 2016. As of March 31, 2020, all options are fully vested.
10.On September 3, 2019, we issued 5,000 options to Mr. Wass that will vest equally over three years on the anniversary date starting September 3, 2021.

 

On February 25, 2015, 1,752 common shares were issued to two former lenders connected with a $241,185$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, 20202021, 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, 2020.2021.

 

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, 2020.2021.

 

Name Fees
Earned
or Paid in
Cash		 Stock
Awards		 Option
Awards		 

 

Non-Equity
Incentive
Plan
Compensation

 

Nonqualified
Deferred
Compensation
Earnings

 

All Other
Compensation

 Total  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 - 385,157 -  -  - 565,157  $180,000   -   -   -   -   -   180,000 
Remi Gaston Dreyfus $50,000 - 378,236 -  -  - 428,236  $50,000   -   -   -   -   -   50,000 
P. Gerald Malone $50,000 - 74,568 -  -  - 124,568  $50,000   -   -   -   -   -   50,000 
Joseph Martin $50,000 - 74,568 -  -  - 124,568  $50,000   -   -   -   -   -   50,000 
Charles Matine $50,000 - 74,568 -  -  - 124,568  $50,000   -   -   -   -   -   50,000 
Audrey Thevenon $50,000 - 74,568 -  -  - 124,568  $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 $180,000,$0.2 million, our non-employee directors are entitled to receive an annual cash payment of up to $50,000,$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 basedequity-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 331,587331,550 shares of our common stock have been granted and are outstanding as of March 31, 2020.2021. 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, 20202021 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 

17

 

  (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  331,587  $15.87   419,550 
Equity compensation plans not approved by security holders:            
Executive Stock Options  486,592  $7.04   - 
Total  818,179       419,550 

 

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 August 2017April 1, 2019 through June 27, 2019,March 31, 2021, entities controlled by Mr. Gaston-Dreyfus have made the following loans to the Company:

 

·Between August and December 2017, entities controlled by Mr. Gaston-Dreyfus loaned the Company an aggregate of $2,580,000 evidenced by convertible promissory notes. Mr. Gaston-Dreyfus received warrants as part of this financing.

·On December 19, 2017, an entity controlled by Mr. Gaston-Dreyfus loaned the Company $400,000 evidenced by a promissory note which was paid back January 4, 2018.

·From January 2018 through March 31, 2018, the Company borrowed an aggregate of $1,250,000 from an entity controlled by Mr. Gaston-Dreyfus, evidenced by convertible promissory notes. All convertible loans were exchanged for common shares on March 31, 2018 and Mr. Gaston-Dreyfus and his affiliates received an aggregate of 608,028 shares of common stock. As part of such transaction, 61,645 warrants were issued to affiliates of Mr. Gaston-Dreyfus.

·From April 2018 through June 25, 2018, the Company borrowed an aggregate of $1,991,673 from an entity controlled by Mr. Gaston-Dreyfus, evidenced by convertible promissory notes. Effective as of July 20, 2018, such convertible notes converted in accordance with their terms into 289,791 shares of common stock.

·On January 22, 2019, the Company borrowed an aggregate of $750,000 from an affiliate of Mr. Gaston-Dreyfus evidenced by a convertible promissory note, and such note and interest was converted into common shares of the Company pursuant to the terms of such notes and 197,234 common shares were issued on March 28, 2019.

18

·On June 11, 2019, the Company borrowed $500,000On 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.

In June 2018, the Company borrowed an aggregate of $306,255 from an entity controlled by Mr. Andre Auberton–Herve, evidenced by a convertible promissory note. Effective as of July 20, 2018, such convertible note converted in accordance with its terms into 44,590 shares of common stock.

On October 10, 2018, the Company borrowed an aggregate of $300,000 from an affiliate of Mr. Andre Auberton-Herve evidenced by a convertible promissory note, and such note and interest was converted into common shares of the Company pursuant to the terms of such notesnote and 81,49276,225 common shares were issued on March 28,September 30, 2019.

 

AsOn February 24, 2021, the Company borrowed $0.3 million from an affiliate of November 30, 2019, we had aggregate advances repayableMr. 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. PrywataGaston-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 $18,926. The loan to Mr. Prywata bears interest atreceipt by the Company of a prescribed rateminimum of 1% until March 31, 2018 and 2% thereafter and is repayable on demand$3 million in Canadian dollars.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 $500,000$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 September [__], 2020November 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 September [__], 2020November 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 5,126,8345,903,360 shares are issued and outstanding as of September [__], 2020,November 15, 2021, consisting of 5,009,1515,790,920 shares of Common Stock and 117,683112,440 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.

 

19

Name of Beneficial Owner Shares of
Common
Stock
Beneficially
,Owned		  

% of
Shares of
Common
Stock

Beneficially
Owned

 
Remi Gaston-Dreyfus (1)(2)  1,484,001   28.95%
Andre Auberton–Herve (3)  388,577   7.51%
Olivier Dassault  693,963   13.54%
Celeste Management SA  656,667   12.81%
SFP Capital  478,017   9.32%
Eric Michel Dusseux (4)  239,461   4.56%
Michal Prywata (1)(5)  61,471   1.2%
Leslie N. Markow (4)  12,344   * 
P. Gerald Malone (4)  24,293   * 
Audrey Thevenon (4)  24,293   * 
Charles Matine (4)  24,293   * 
Joseph Martin (4)  24,293   * 
Loren Wass (4)  1,666   * 
All directors and executive officers as a group (10 persons)  2,284,692   39.14%
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%

 

 

*Less than 1%

(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 CommonExchangeable Shares, through The Special Voting Preferred Stock, as of the consummation of the Company’s going public transaction;

·    Have dividend entitlementswill have voting rights and other attributes corresponding to the Common Stock;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 122,4261,667 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) 1,200,8591,336,419 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 30,17242,385 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 September [__], 2020, (iii) 123,259 options to acquire Common Stock,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 September [__], 2020.
(5)Includes 11,495 options to acquire shares of our Common Stock which have vested or which will vest within 60 days of September [__], 2020.November 15, 2021.

 

20

 

 

PROPOSAL FOR APPROVAL OF

RATIFICATION OF AUDITORSEXECUTIVE 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.

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 August 27, 2020,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, 2021,2022, 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 24

 

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 2.4.

 

PROPOSAL FOR APPROVAL OF

AN AMENDMENT TO OUR

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

TO DECREASE THE AUTHORIZED NUMBER OF SHARES OF (I) COMMON STOCK OF THE

COMPANY FROM 500,000,000 TO 13,000,000, AND (II) PREFERRED STOCK OF THE COMPANY

FROM 10,000,000 TO 5,000,000

(Proposal 3 on Proxy Card and Voting Instruction Form)

Our Board of Directors proposes that our stockholders consider and approve an amendment (the “Amendment”) to our Amended and Restated Certificate of Incorporation, as amended, to decrease the authorized number of shares of (i) common stock of the company from 500,000,000 to 13,000,000, and (ii) preferred stock of the company from 10,000,000 to 5,000,000 (collectively, the “Authorized Share Decrease”).

As further detailed below, the Company is presently authorized to issue 510,000,000 shares of capital stock, which consists of 500,000,000 shares of Common Stock, par value $0.001 per share and 10,000,000 shares of undesignated preferred stock, par value $0.001 per share (“Preferred Stock”). As of September [__], 2020, the Company had 5,126,834 shares of capital stock issued and outstanding, consisting of 5,009,151 shares of Common Stock and 117,683 Common Stock equivalents through the Exchangeable Shares. As of September [__], 2020, the Company also had 1 share of Preferred Stock issued and outstanding, designated as Special Voting Preferred Stock. The holder of the Special Voting Preferred Stock holds the share as trustee for the holders of Exchangeable Shares. The holders of the Exchangeable Shares, through the Special Voting Preferred Stock, have voting rights and other attributes corresponding to the Common Stock. As proposed, the Authorized Share Decrease would reduce the authorized capital of the Company from 510,000,000 to 18,000,000, including a reduction in the authorized number of shares of (i) Common Stock from 500,000,000 to 13,000,000 and (ii) Preferred Stock from 10,000,000 to 5,000,000. The proposed Authorized Share Decrease will not affect any stockholder’s proportionate equity interest in the Company. Neither the par value of the Common Stock or Preferred Stock nor any rights presently accruing to holders of Common Stock or Preferred Stock would be affected by the Amendment.

The following table illustrates the effect of the Amendment on the Company’s Common Stock based on shares authorized, issued, outstanding and available for future issuance as of September [__], 2020.

21

  Authorized
Common
Stock		  Issued and
Outstanding
Common
Stock (1)		  Common
Stock
Reserved for
Issuance		  Available
Common
Stock for
Issuance		 
Before Authorized Share Decrease  500,000,000   5,126,834   1,121,435 (2)   493,751,731 
                 
After Authorized Share Decrease  13,000,000   5,126,834   1,121,435 (2)   6,751,731 

(1)Includes Exchangeable Shares, which vote with the Common Stock as a single class and convert into Common Stock at the option of the holder on a 1:1 basis.
(2)Includes (i) 122,367 shares of common stock underlying outstanding warrants, and (ii) 818,179 shares of common stock underling outstanding options and (iii) approximately 180,889 shares of common stock underlying outstanding convertible promissory notes. Does not include any additional shares of common stock that may be issued as a result of existing “most-favored nation” clauses in certain of such convertible promissory notes.

The following table illustrates the effect of the Amendment on the Company’s Preferred Stock based on shares authorized, issued, outstanding and available for future issuance as of September [__], 2020.

  Authorized
Preferred
Stock		  Issued and
Outstanding
Preferred
Stock		  Preferred
Stock
Reserved
for Issuance		  Available
Preferred
Stock for
Issuance		 
Before Authorized Share Decrease  10,000,000   1   0   9,999,999 
                 
After Authorized Share Decrease  5,000,000   1   0   4,999,999 

Purposes of this Proposal

The Board believes the Authorized Share Decrease, if affected, will reduce the Company’s annual Delaware franchise tax liability by over $100,000 on an annualized basis. Assuming no changes in future Delaware franchise tax law and the Company’s current financial position, the Board anticipates that there will be ongoing savings however, there can be no assurance that such result will occur.

The Board is not aware of any present efforts by any persons to accumulate common stock or to obtain control of the Company. The Amendment is being sought for the sole purpose of reducing the number of shares of authorized capital stock for future issuance to reduce the Company’s current Delaware franchise tax liability. The Board believes that the remaining shares of authorized capital stock under the Amendment after giving effect to the Authorized Share Decrease will be sufficient to satisfy the Company’s capital requirements in the future. 

Potential Disadvantages of the Proposal

Although the Board believes that 13,000,000 authorized shares of Common Stock and 5,000,000 authorized shares of Preferred Stock will be sufficient for our expected purposes for the foreseeable future, these expectations could turn out to be wrong and we may require additional authorized shares sooner than we expect. In that case, we would be required to obtain the approval of our stockholders to effect an increase to our authorized shares. Any such increase to our authorized shares may require us to solicit consents or proxies and hold a vote at an annual or special meeting of our stockholders. The stockholder meeting process can be costly and time-consuming and is subject to a variety of SEC rules that implement waiting periods throughout the process, which could prevent us from obtaining any increase to our authorized shares in a timely manner. Moreover, our stockholders may not approve any proposal to increase our authorized shares. Either of these outcomes could cause us to forego opportunities that we believe to be valuable or prevent us from using equity for compensation or other corporate purposes, which could limit our flexibility and prospects.

22

Procedure for Effecting the Authorized Share Decrease

If the Board elects to effect the Authorized Share Decrease, we will amend Section FOURTH of our Charter to replace same with substantially the following paragraph:

“FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is (a) 13,000,000 shares of Common Stock, $0.001 par value per share (“Common Stock”), and (b) 5,000,000 shares of Preferred Stock, $0.001 par value per share (“Preferred Stock”). Preferred Stock may be issued from time to time in one or more series and/or classes (“Series”). The Board of Directors is hereby authorized to provide for the issuance of shares of Preferred Stock in Series and, by filing a certificate pursuant to the DGCL (hereinafter, along with any similar designation relating to any other class of stock that may hereafter be authorized, referred to as a “Preferred Stock Designation”), to established from time to time one or more Series, by fixing and determining the number of shares to be included in each such Series, and to fix the designation, powers, preferences and rights of the shares of each such Series and the qualifications, limitations and restrictions thereof. The authority of the Board of Directors with respect to each Series is hereby expressly vested in it and shall include, without limiting the generality of the foregoing, determination of the following:

(i)the designation of such Series, which may be by distinguishing number, letter or title;

(ii)the number of shares of the Series, which number the Board of Directors may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding);

(iii)the amounts payable on, and the preferences, if any, of shares of the Series in respect of dividends payable and any other class or classes of capital stock of the Company, and whether such dividends, if any, shall be cumulative or noncumulative;

(iv)dates on which dividends, if any, shall be payable;

(v)whether the shares of such Series shall be subject to redemption by the Company, and if made subject to redemption, the redemption rights and price or prices, if any, for shares of the Series;

(vi)the terms and amount of any sinking fund provided for the purchase or redemption of shares of the Series;

(vii)the amounts payable on and the preferences, if any, of shares of the Series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company;

(viii)whether the shares of the Series shall be convertible into or exchangeable for shares of any other Series, or any other security, of the Company or any other corporation, and, if so, the specification of such other Series of such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made;

(ix)restrictions on the issuance of shares of the same Series or of any other Series; and

(x)whether the holders of the shares of such Series shall be entitled to vote, as a Series or otherwise, on any and all matters of the Company to which holders of Common Stock are entitled to vote.

The Common Stock shall be subject to the express terms of the Preferred Stock and any Series thereof. Each share of Common Stock shall be equal to each other share of Common Stock. Except as may be provided in these Amended and Restated Certificate of Incorporation or in a Preferred Stock Designation, the holders of shares of Common Stock shall be entitled to one vote for each such share upon all matters presented to the stockholders.”

23

If the Board elects to effect this Proposal Number 3, we would file the Amendment with the Delaware Secretary of State at such time as our Board has determined the appropriate effective time for the Authorized Share Decrease. Our Board may delay effecting the Authorized Share Decrease without resoliciting stockholder approval to any time within twelve months after the date stockholder approval was obtained. The Authorized Share Decrease would become effective on the date the Amendment is filed with the Delaware Secretary of State.

Discretionary Authority of the Board of Directors to Abandon the Authorized Share Decrease

Our Board reserves the right to abandon the Amendment to decrease our authorized shares without further action by our stockholders at any time before the effectiveness of the filing with the Delaware Secretary of State of the Amendment, even if the Authorized Share Decrease has been authorized by our stockholders at the Annual Meeting.

Dissenters’ Rights

Pursuant to the Delaware General Corporation Law, our stockholders are not entitled to dissenters’ rights with respect to the Authorized Share Decrease.

Required Vote and Board Recommendation

The proposal requires the affirmative vote of the holders of a majority of the shares of Common Stock and Exchangeable Shares, voting together as a single class, outstanding and entitled to vote on the matter, either in person or by proxy, at the meeting. As a result, abstentions and broker non−votes will have the same effect as “Against” votes. The Board Of Directors recommends a vote FOR the proposal to decrease the authorized number of shares of (i) common stock of the Company from 500,000,000 to 13,000,000, and (ii) preferred stock of the Company from 10,000,000 to 5,000,000 as described in this Proposal Number 3.

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.

 

As a result of the termination of our China joint venture and related commercial arrangements, we have been communicating with our counterparts regarding such termination. We can give no assurance that our counterparts to the China JV will not commence a litigation or other proceeding against us as a result of our termination, which could be disruptive to us and result in substantial costs to defend. Furthermore, any adverse judgment against us would likely have a material adverse effect on us and our financial condition.

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, 2020,2021, 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 Form 4 showing 1 transaction, Olivier Dassault, who failed to file a Form 3 and a Form 4 showing 1 transaction, and Celeste Management SA, who failed to file a Form 3.like number of transactions.

 

24

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 November, 2021.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 [__], 2021July 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., 483 Bay Street, N105, Toronto, Ontario Canada M5G 2C9;80 Coolidge Hill Road, Watertown, Massachusetts 02472; Telephone: (416) 640-7887 x 508;(617) 926-4800; Email: lmarkow@bioniklabs.com.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, 2020,2021, including financial statements, is being mailed to stockholders together with this proxy statement. No part of such Annual Report shall be regarded as proxy-soliciting material or as a communication by means of which any solicitation is being or is to be made. Additional copies are available to stockholders without charge upon written request to Leslie Markow,Rich Russo Jr., Chief Financial Officer and Interim Chief Executive Officer, at 483 Bay Street, N105, Toronto, Ontario Canada M5G 2C9.80 Coolidge Hill Road, Watertown, Massachusetts 02472. A copy of this report is also available through our website at www.bioniklabs.comor, alternatively, at www.sec.gov.

 

25

 

 

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.

 

 By Order of the Board of Directors
  
 /s/ Eric DusseuxRich Russo Jr.
DATE: September [__], 2020November 17, 2021Chief ExecutiveFinancial Officer and DirectorInterim Chief Executive Officer

 

26

 

 

Appendix A

CERTIFICATE OF AMENDMENT

OF THE

CERTIFICATE OF INCORPORATION

OF

BIONIK LABORATORIES CORP.

Bionik Laboratories Corp. (the “Corporation”), a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify as follows:

1.             The name of the Corporation is Bionik Laboratories Corp. and the Corporation was originally incorporated pursuant to the DGCL on June 25, 2013.

2.             That the Board of Directors of the Corporation duly adopted resolutions proposing to amend the Certificate of Incorporation of the Corporation as amended and restated to date (as amended and restated, the “Certificate of Incorporation”), declaring said amendment to be advisable and in the best interests of the Corporation and its stockholders, and authorizing the appropriate officers of the Corporation to solicit the consent of the stockholders therefor, which proposed amendment is as follows:

FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is (a) 13,000,000 shares of Common Stock, $0.001 par value per share (“Common Stock”), and (b) 5,000,000 shares of Preferred Stock, $0.001 par value per share (“Preferred Stock”). Preferred Stock may be issued from time to time in one or more series and/or classes (“Series”). The Board of Directors is hereby authorized to provide for the issuance of shares of Preferred Stock in Series and, by filing a certificate pursuant to the DGCL (hereinafter, along with any similar designation relating to any other class of stock that may hereafter be authorized, referred to as a “Preferred Stock Designation”), to established from time to time one or more Series, by fixing and determining the number of shares to be included in each such Series, and to fix the designation, powers, preferences and rights of the shares of each such Series and the qualifications, limitations and restrictions thereof. The authority of the Board of Directors with respect to each Series is hereby expressly vested in it and shall include, without limiting the generality of the foregoing, determination of the following:

(i)the designation of such Series, which may be by distinguishing number, letter or title;

(ii)the number of shares of the Series, which number the Board of Directors may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding);

(iii)the amounts payable on, and the preferences, if any, of shares of the Series in respect of dividends payable and any other class or classes of capital stock of the Company, and whether such dividends, if any, shall be cumulative or noncumulative;

(iv)dates on which dividends, if any, shall be payable;

(v)whether the shares of such Series shall be subject to redemption by the Company, and if made subject to redemption, the redemption rights and price or prices, if any, for shares of the Series;

(vi)the terms and amount of any sinking fund provided for the purchase or redemption of shares of the Series;

(vii)the amounts payable on and the preferences, if any, of shares of the Series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company;


(viii)whether the shares of the Series shall be convertible into or exchangeable for shares of any other Series, or any other security, of the Company or any other corporation, and, if so, the specification of such other Series of such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made;

(ix)restrictions on the issuance of shares of the same Series or of any other Series; and

(x)whether the holders of the shares of such Series shall be entitled to vote, as a Series or otherwise, on any and all matters of the Company to which holders of Common Stock are entitled to vote.

The Common Stock shall be subject to the express terms of the Preferred Stock and any Series thereof. Each share of Common Stock shall be equal to each other share of Common Stock. Except as may be provided in these Amended and Restated Certificate of Incorporation or in a Preferred Stock Designation, the holders of shares of Common Stock shall be entitled to one vote for each such share upon all matters presented to the stockholders.

3.             That the foregoing amendment was approved by the holders of the requisite number of shares of the Corporation in accordance with Section 242 of the DGCL.

4.             That the foregoing amendment shall be effective as of [_____], 201[_].

IN WITNESS WHEREOF, said corporation has caused this certificate to be signed this ___ day of _______, 201__.

By:
Name:
Title:


BIONIK LABORATORIES CORP.

 

Annual Meeting of Stockholders

 

October 5, 2020December 17, 2021

 

Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting of Stockholders
To Be Held on October 5, 2020December 17, 2021

 

BIONIK LABORATORIES CORP.

 

THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS

 

The undersigned, revoking all prior proxies, hereby appoints Eric DusseuxRich Russo Jr. and Leslie Markow,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, 20212022 to be held on October 5, 2020,December 17, 2021, at 9:00 a.m., Eastern time, or any adjournment or postponement thereof, at 483 Bay Street, N105, Toronto, Ontario, Canada M5G 2C9,80 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 September [__], 2020,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 3,4, 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 October 5, 2020December 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 October 5, 2020December 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 October 5, 2020:December 17, 2021:

 

(1)            To elect eightseven 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;

(3)           To approve an amendment to the Company’s Amended and Restated Certificate of Incorporation to decrease the authorized number of shares of (i) common stock of the Company from 500,000,000 to 13,000,000, and (ii) preferred stock of the Company from 10,000,000 to 5,000,000; and

 

(3)(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 October 4, 2020.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 October 4, 2020.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:

 

(i)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

(ii)in the name of a clearing agency of which the Intermediary is a participant.

 

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:

 

(i)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 October 4, 2020;December 16, 2021; or

(ii)a voting instruction form, which must be completed and signed by you in accordance with the directions on the voting instruction form.

 

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 October 5, 2020December 17, 2021

 

1.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, 2021.2022. 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.

 

2.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.

 

3.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.

 

4.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.

 

5.If this VIF is not dated, it will be deemed to bear the date on which it is mailed by the Trustee to you.

 

6.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.

 

7.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.

 

8.Your voting instructions will be recorded on receipt of the VIF and a legal form of proxy will be submitted on your behalf.

 

9.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.

 

10.If you have any questions regarding the enclosed documents, please contact the representative who services your account.

 

11.This VIF should be read in conjunction with the accompanying documentation provided by management of Bionik Laboratories Corp.

 

VIF’s submitted must be received by 5:00 p.m. Toronto Time

On October 4, 2020December 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”)ORIf 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).  
  
  
  

 

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 483 Bay Street, N105, Toronto, Ontario, Canada M5G 2C980 Coolidge Hill Road, Watertown, Massachusetts 02472 on October 5, 2020December 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, 2021, FOR the approval of an amendment to the Company’s Amended and Restated Certificate of Incorporation to decrease the authorized number of shares of (i) common stock of the Company from 500,000,000 to 13,000,000, and (ii) preferred stock of the Company from 10,000,000 to 5,000,000,2022, 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: Eric Dusseux, Andre Auberton-Herve, Remi Gaston-Dreyfus, P. Gerald Malone, Joseph Martin, Charles Matine, Audrey Thevenon, and Michal Prywata.

 

¨FOR ALL NOMINEES
  
¨WITHHOLD AUTHORITY to vote for all nominees
  
¨WITHHOLD AUTHORITY FOR:

 

 Eric Dusseux¨
Andre Auberton-Herve¨
 Remi Gaston-Dreyfus¨
 P. Gerald Malone¨
 Joseph Martin¨
 Charles Matine¨
 Audrey Thevenon¨
 Michal Prywata¨

 

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¨ AGAINST¨ ABSTAIN

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’

¨ ONE YEAR¨ TWO YEARS¨ THREE YEARS¨ ABSTAIN

4.             The ratification of MNP, LLP as the Company’s independent public accountants for the fiscal year ending March 31, 2021.

 

¨ FOR¨ AGAINST¨ ABSTAIN

 

 

 

3.             The approval of an amendment to the Company’s Amended and Restated Certificate of Incorporation to decrease the authorized number of shares of (i) common stock of the Company from 500,000,000 to 13,000,000, and (ii) preferred stock of the Company from 10,000,000 to 5,000,000

¨ FOR¨ AGAINST¨ ABSTAIN
 Signature(s):  Date:                      

 

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.

   
   
   
   
  ___/___/___