UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of Earliest Event Reported):  June 23, 2017

 

NABRIVA THERAPEUTICS PLC

(Exact name of registrant as specified in its charter)

 

Ireland

 

001-37558

 

Not Applicable

(State or other jurisdiction of
incorporation)

 

(Commission File Number)

 

(I.R.S. Employer Identification
No.)

 

25-28 North Wall Quay,
IFSC, Dublin 1, Ireland

 

Not Applicable

(Address of principal executive offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code: +353 1 649 2000

 

Not Applicable

(Former name or former address, if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o             Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o             Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o             Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o             Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company x

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. x

 

 

 



 

Explanatory Note

 

This Current Report on Form 8-K is being filed for purposes of giving notice that Nabriva Therapeutics plc, a public limited company organized under the laws of Ireland (“ Nabriva Ireland ”), has become the successor issuer to Nabriva Therapeutics AG, a stock corporation ( Aktiengesellschaft ) organized under the laws of Austria (“ Nabriva AG ”) pursuant to Rule 12g-3(a) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”).  Such succession has occurred following the conclusion, on June 23, 2017, of a tender offer related to the exchange of American Depositary Shares (“ Nabriva AG ADSs ”) and common shares of Nabriva AG (“ Nabriva AG Common Shares ”) for ordinary shares (“ Nabriva Ireland Shares ”) of Nabriva Ireland (the “ Exchange Offer ”), which resulted in Nabriva Ireland, a new Irish holding company, becoming the ultimate holding company of Nabriva AG (the predecessor registrant and former ultimate holding company) and its subsidiaries (the “ Redomiciliation ”).

 

Item 1.01.  Entry into a Material Definitive Agreement.

 

Effective June 23, 2017, the Board of Directors of Nabriva Ireland (the “ Nabriva Ireland Board ”) adopted a form of indemnification agreement to be entered into with the directors and officers of Nabriva Ireland (the “ Indemnification Agreement ”). The Indemnification Agreement provides that , subject to the provisions of the Irish Companies Act 2014, Nabriva Ireland is required among other things, to indemnify its directors and officers for certain expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by a director or officer of Nabriva Ireland in any action or proceeding arising out of his or her service as a directors or officer of Nabriva Ireland, or any subsidiaries of Nabriva Ireland or any other company or enterprise to which the person provides services at the request of Nabriva Ireland.

 

The foregoing description of the Indemnification Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Indemnification Agreement, the form of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

 

Item 3.03.  Material Modification to Rights of Security Holders.

 

As a result of the conclusion of the Exchange Offer on June 23, 2017, each holder of Nabriva AG Common Shares who tendered into the Exchange Offer is entitled to receive ten Nabriva Ireland Shares in exchange for each Nabriva AG Common Share validly tendered into, and not withdrawn from, the Exchange Offer, and each holder of Nabriva AG ADSs who tendered into the Exchange Offer is entitled to receive one Nabriva Ireland Share for each Nabriva AG ADS validly tendered into, and not withdrawn from, the Exchange Offer.  The rights of holders of Nabriva Ireland Shares are governed by the Nabriva Ireland memorandum and articles of association (the “ Nabriva Ireland M&A ”), which was approved by the shareholder and the Nabriva Ireland Board effective June 23, 2017.  The Nabriva Ireland M&A is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated in this Item 3.03 by reference.

 

I tem 5.02  Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Appointment of Directors

 

Effective June 23, 2017, each existing member of the Board of Directors of Nabriva AG was appointed as a member of the Nabriva Ireland Board.  In addition, effective June 23, 2017, Colin Broom, the Chief Executive Officer of Nabriva Ireland, and Carrie Bourdow were also appointed as members of the Nabriva Ireland Board.  A copy of the press release announcing the appointment of Dr. Broom and Ms.

 

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Bourdow to the Nabriva Ireland Board is filed as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated in this Item 5.02 by reference.

 

The names of the new directors of Nabriva Ireland (the “ New Directors ”) and the committees of the Nabriva Ireland Board on which the New Directors will serve are set forth below.

 

Name

 

Compensation 
Committee

 

Audit
Committee

 

Nominating and 

Corporate 
Governance 
Committee

Daniel Burgess, Chairman of the Board

 

 

 

Member

 

Chairman

Colin Broom, Director

 

 

 

 

 

 

Axel Bolte, Director

 

Chairman

 

 

 

 

Chau Quang Khuong, Director

 

Member

 

 

 

 

Charles Rowland, Director

 

Member

 

Chairman

 

 

George Talbot, Director

 

 

 

 

 

 

Stephen Webster, Director

 

 

 

Member

 

Member

Mark Corrigan, Director

 

 

 

 

 

Member

Carrie Bourdow, Director

 

Member

 

 

 

 

 

All New Directors except for Dr. Broom will participate in the Nabriva Ireland non-employee director compensation program.  There are no arrangements or understandings between any of the New Directors and any other person pursuant to which any of the New Directors was selected as a New Director.  There are no related party transactions between Nabriva Ireland or any of the New Directors that would require disclosure under Item 404(a) of Regulation S-K, other than as previously reported in the section of Nabriva AG’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016 (the “ 2016 10-K ”) entitled “Part III- Item 13 - Certain Relationships and Related Transactions, and Director Independence- Transactions.”

 

Resignation of Directors

 

Effective June 23, 2017, Gary Sender, Andrew Ryan and Paul Ryan resigned as directors of the Nabriva Ireland Board, and Mihovil Spoljaric resigned as an alternate director of Gary Sender on the Nabriva Ireland Board.  The aforementioned directors’ decisions to resign from the Nabriva Ireland Board are not due to any disagreement with Nabriva Ireland on any matter related to Nabriva Ireland’s operations, policies or practices.

 

Appointment of New Officers

 

Effective June 23, 2017, the Nabriva Ireland Board appointed the following individuals to serve as executive officers of Nabriva Ireland: (i) Robert Crotty as General Counsel and Secretary, (ii) Elyse Seltzer as Chief Medical Officer, and (iii) Steven Gelone as Chief Development Officer. Mr. Crotty, Dr. Seltzer and Mr. Gelone join Colin Boom and Gary Sender, who were appointed Chief Executive Officer and Chief Financial Officer, respectively, on April 12, 2017.

 

Assumption of Compensation Plans and Outstanding Awards

 

Effective June 23, 2017, Nabriva AG’s Stock Option Plan 2007 (the “ 2007 Plan ”) and the Stock Option Plan 2015 (the “ 2015 Plan ” and, together with the 2007 Plan, the “ Plans ”) were amended to take account of certain requirements under Irish law, and Nabriva Ireland assumed the Plans and the existing awards

 

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thereunder.  The 2007 Plan and the 2015 Plan are incentive compensation plans under which Nabriva AG has made equity-based awards to certain of its executives, including its named executive officers.  Nabriva Ireland may make future equity-based awards under the 2015 Plan to certain executives, including its named executive officers, but no new awards may be made under the 2007 Plan.

 

As a result, effective June 23, 2017, Nabriva Ireland Shares will be issuable under the Plans in lieu of Nabriva AG Common Shares or Nabriva AG ADSs representing Nabriva AG Common Shares.

 

Copies of the 2007 Plan and the 2015 Plan, each as amended to take account of certain requirements under Irish law, are filed as Exhibits 10.2 and 10.3, respectively, to this Current report on Form 8-K and are incorporated in this Item 5.02 by reference.

 

Compensation of Nabriva Ireland Executive Officers

 

The compensation of the executive officers of Nabriva Ireland remains identical to the compensation each such officer received as a senior manager of Nabriva AG immediately prior to June 23, 2017.  Information concerning the compensation of certain Nabriva AG senior managers can be found in the 2016 10-K under the caption entitled “Part III- Item 11- Executive Compensation.”

 

Item 5.03  Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

The information included in Item 3.03 of this Current Report on Form 8-K is incorporated in this Item 5.03 by reference.  A summary of the material terms of the Nabriva Ireland M&A which is included under the heading “Description of the Ordinary Shares” in Nabriva Ireland’s registration statement on Form S-4 (File No. 333-217315) is incorporated in this Item 5.03 by reference.

 

The description of the Nabriva Ireland M&A referenced above is a summary and does not purport to be a complete description and is qualified in its entirety by reference to the Nabriva Ireland M&A, filed as Exhibit 3.1 to this Current Report on Form 8-K.

 

Item 5.05  Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.

 

Effective June 23, 2017, Nabriva Ireland has adopted a Code of Business Conduct and Ethics that applies to all directors, officers and employees of Nabriva Ireland.  The Code of Business Conduct and Ethics is filed as Exhibit 14.1 to this Current Report on Form 8-K and is incorporated in this Item 5.05 by reference.

 

Item 8.01  Other Information.

 

Conclusion of Exchange Offer

 

On June 26, 2017, Nabriva Ireland issued a press release announcing the expiration and successful conclusion, on June 23, 2017, of the Exchange Offer.  The Redomiciliation became effective immediately following the conclusion of the Exchange Offer.

 

A copy of the press release is filed as Exhibit 99.2 to this Current Report on Form 8-K and is incorporated in this Item 8.01 by reference.

 

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Successor Issuer

 

In connection with the conclusion of the Exchange Offer, and by operation of Rule 12g-3(a) promulgated under the Exchange Act, Nabriva Ireland is the successor issuer to Nabriva AG, and has succeeded to the attributes of Nabriva AG as the registrant.  The Nabriva Ireland Shares are deemed to be registered under Section 12(b) of the Exchange Act, and Nabriva Ireland is subject to the informational requirements of the Exchange Act, and the rules and regulations promulgated thereunder, and will hereafter file reports and other information with the Securities and Exchange Commission (the “ SEC ”) using Nabriva AG’s SEC file number (001-37558). Nabriva Ireland hereby reports this succession in accordance with Rule 12g-3(f) under the Exchange Act.

 

The Nabriva Ireland Shares are listed on the NASDAQ Global Select Market, and trade under the symbol “NBRV”.

 

Item 9.01  Financial Statements and Exhibits.

 

(d)                                                               Exhibits

 

See Exhibit Index attached hereto.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

Dated: June 26, 2017

NABRIVA THERAPEUTICS PLC

 

By:

/s/ Gary Sender

 

Name:

Gary Sender

 

Title:

Chief Financial Officer

 

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EXHIBIT INDEX

 

Exhibit No.

 

Description

3.1

 

Memorandum and Articles of Association of Nabriva Therapeutics plc.

10.1

 

Form of Indemnification Agreement.

10.2

 

Stock Option Plan 2007.

10.3

 

Stock Option Plan 2015.

14.1

 

Code of Business Conduct and Ethics of Nabriva Therapeutics plc.

99.1

 

Press Release of Nabriva Therapeutics plc announcing the appointment of new members of the Board of Directors, dated June 26, 2017.

99.2

 

Press Release of Nabriva Therapeutics plc announcing the conclusion of the Exchange Offer, dated June 26, 2017.

 

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Exhibit 3.1

 

COMPANIES ACT 2014

 

A PUBLIC COMPANY LIMITED BY SHARES

 

CONSTITUTION

 

OF

 

NABRIVA THERAPEUTICS PUBLIC LIMITED COMPANY

 

(adopted on 23 June 2017)

 



 

COMPANIES ACT 2014

 

A PUBLIC COMPANY LIMITED BY SHARES

 

MEMORANDUM OF ASSOCIATION

 

OF

 

NABRIVA THERAPEUTICS PUBLIC LIMITED COMPANY

 

1.                                       The name of the Company is Nabriva Therapeutics public limited company.

 

2.                                       The Company is a public limited company for the purposes of Part 17 of the Companies Act 2014.

 

3.                                       The objects for which the Company is established are:

 

3.1.                             To carry on the business of a holding company and to coordinate the administration, finances and activities of any subsidiary companies or associated companies, to do all lawful acts and things whatsoever that are necessary or convenient in carrying on the business of such a holding company and in particular to carry on, in all its branches, the business of a management services company, to act as managers and to direct or coordinate the management of other companies or of the business, property and estates of any company or person and to undertake and carry out all such services in connection therewith as may be deemed necessary or appropriate by the Company’s board of directors and to exercise its powers as a shareholder of other companies.

 

3.2.                             To carry on the business of a pharmaceuticals company and to research, develop, design, manufacture, produce, supply, buy, sell, distribute, import, export, provide, promote and otherwise deal in pharmaceuticals, active pharmaceutical ingredients and dosage pharmaceuticals and other devices or products of a pharmaceutical, medicinal or healthcare character (including, but not limited to, anti-infective agents) and to hold intellectual property rights and to do all things usually done by persons carrying on the above mentioned activities or any of them or likely to be required in connection with any such activities.

 

3.3.                             To invest in pharmaceutical and related assets, including, amongst other items, investments in pharmaceutical companies, products, businesses, divisions, technologies, devices, sales force and other marketing capabilities, development projects and related activities, licences, intellectual and similar property rights, premises and equipment, royalty rights and all other assets needed to operate a pharmaceuticals business.

 

3.4.                             To establish, maintain and operate laboratories for the purposes of carrying on chemical, physical and other research in medicine, chemistry, industry or other unrelated or related fields.

 

3.5.                             To invest (including long-term investments in, and acquisitions of, the shares or other securities or ownership interests in other companies) any monies of the Company in such investments and in such manner as may from time to time be determined, and to hold, sell or deal with such investments and generally to purchase, take on lease or in exchange or otherwise acquire any real and personal property and rights or privileges.

 

3.6.                             To develop and turn to account any land acquired by the Company or in which it is interested and in particular by laying out and preparing the same for building purposes, constructing, altering, pulling down, decorating, maintaining, fitting up and improving buildings and conveniences, and by planting, paving, draining, farming, cultivating, letting on building lease or

 

1



 

building agreement and by advancing money to and entering into contracts and arrangements of all kinds with builders, tenants and others.

 

3.7.                             To acquire and hold shares and stocks of any class or description, debentures, debenture stocks, bonds, bills, mortgages, obligations, investments, partnership interests, limited partnership interests, trust interests, membership interests and other securities or ownership interests of all descriptions and of any kind issued or guaranteed by any company or undertaking of whatever nature and wheresoever constituted or carrying on business or issued or guaranteed by any government, state, dominion, colony, sovereign ruler, commissioners, trust, public, municipal, local or other authority or body of whatever nature and wheresoever situated and investments, securities and property of all descriptions and of any kind, including real and chattel real estates, mortgages, reversions, assurance policies, contingencies and choses in action.

 

3.8.                             To remunerate by cash payments or allotment of shares or securities or other ownership interests (including rights to acquire shares or securities or other ownership interests) of the Company credited as fully paid up or otherwise any person or company for services rendered or to be rendered to the Company or any parent or subsidiary body corporate whether in the conduct or management of its business, or in placing or assisting to place or guaranteeing the placing of any of the shares of the Company’s capital, or any debentures or other securities of the Company or in or about the formation or promotion of the Company.

 

3.9.                             To purchase for investment property of any tenure and any interest therein, and to make advances upon the security of land or other similar property or any interest therein.

 

3.10.                      To acquire by purchase, exchange, lease, fee, farm grant or otherwise, either for an estate in fee simple or for any less estate or other estate or interest, whether immediate or reversionary and whether vested or contingent, any lands, tenements or hereditaments of any tenure, whether subject or not to any charges or encumbrances, and to hold, farm, work and manage and to let, sublet, mortgage or charge land and buildings of any kind, reversions, interests, annuities, life policies, and any other property real or personal, movable or immovable, either absolutely or conditionally, and either subject or not to any mortgage, charge, ground rent or other rents or encumbrances.

 

3.11.                      To erect or secure the erection of buildings or other structures of any kind with a view of occupying or letting them or otherwise utilising them and to enter into any contracts or leases and to grant any licences necessary to effect the same.

 

3.12.                      To maintain and improve any lands, tenements or hereditaments acquired by the Company or in which the Company is interested, in particular by decorating, maintaining, furnishing, fitting up and improving houses, shops, flats, maisonettes and other buildings and structures and to enter into contracts and arrangements of all kinds with tenants and others.

 

3.13.                      To sell, exchange, mortgage (with or without power of sale), assign, turn to account or otherwise dispose of and generally deal with the whole or any part of the property, shares, stocks, securities, estates, rights or undertakings of the Company, real property, chattels real or personal, movable or immovable, either in whole or in part.

 

3.14.                      To take part in the management, supervision, or control of the business or operations of any company or undertaking, and for that purpose to appoint and remunerate any directors, accountants, or other experts or agents to act as consultants, supervisors and agents of other companies or undertakings and to provide managerial, advisory, technical, design, purchasing and selling services and any other services deemed appropriate by the Company.

 

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3.15.                      To make, draw, accept, endorse, negotiate, issue, execute, discount and otherwise deal with bills of exchange, promissory notes, letters of credit, circular notes, and other negotiable or non-negotiable or transferable or non-transferrable instruments.

 

3.16.                      To redeem, purchase, or otherwise acquire in any manner permitted by law any shares in the Company’s capital or other securities or ownership interests of any kind issued by the Company.

 

3.17.                      To guarantee, support or secure whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property and assets (present and future) and uncalled capital of the Company or by both such methods, or by any other method whatsoever, the performance of the obligations of, and the repayment or payment of the principal amounts of and the premiums, interest, dividends and other amounts due on or with respect to any security of any person, firm or company, including any company which is for the time being the Company’s holding company (as defined by section 8 of the Companies Act 2014) or subsidiary (as defined by section 7 of the Companies Act 2014) or another subsidiary as defined by the said section of the Company’s holding company (as defined by section 8 of the Companies Act 2014) or otherwise associated with the Company in business notwithstanding the fact that the Company may not receive any consideration, advantage or benefit, direct or indirect from entering into such guarantee or other arrangement or transaction contemplated herein.

 

3.18.                      To lend the funds of the Company with or without security and at interest or free of interest.

 

3.19.                      To raise or borrow or secure the payment of money, including by the issue of bonds, debentures or debenture stock, perpetual or redeemable, or by mortgage, charge, lien or pledge upon the whole or any part of the undertaking, property, assets or rights of the Company, present or future, including its uncalled capital and generally in any other manner as the directors shall from time to time determine and to enter into or issue interest and currency hedging and swap agreements, forward rate agreements, interest and currency futures or options and other forms of financial instruments, and to purchase, redeem or pay off any of the foregoing and to guarantee any or all of the liabilities of the Company, any other company or any other person, and any debentures, debenture stock or other securities may be issued at a discount, premium or otherwise, and with any special privileges as to redemption, surrender, transfer, drawings, allotments of shares, attending and voting at general meetings of the Company, appointment of directors and otherwise.

 

3.20.                      To accumulate capital for any of the purposes of the Company, and to appropriate any of the Company’s assets to specific purposes, either conditionally or unconditionally, and to admit any class or section of those who have any dealings with the Company to any share in the profits thereof or in the profits of any particular branch of the Company’s business or to any other special rights, privileges, advantages or benefits.

 

3.21.                      To reduce the share capital of the Company in any manner permitted by law.

 

3.22.                      To make gifts or grant bonuses to officers or other persons who are or have been in the employment of the Company and to allow any such persons to have the use and enjoyment of such property, chattels or other assets belonging to the Company upon such terms as the Company shall think fit.

 

3.23.                      To establish and maintain or procure the establishment and maintenance of any pension or superannuation fund (whether contributory or otherwise) for the benefit of and to give or procure the giving of donations, gratuities, pensions, annuities, allowances, emoluments or charitable aid to any persons who are or were at any time in the employment or service of the Company or any of its predecessors in business, or of any company which is a subsidiary of the Company or who may be or have been directors or officers of the Company, or of any such other company as aforesaid, or any persons in whose welfare the Company or any such other

 

3



 

company as aforesaid may be interested and the wives, husbands, widows, widowers, families, relatives or dependants of any such persons, and to make payments towards insurance and assurance and to form and contribute to provident and benefit funds for the benefit of any such persons and to remunerate any person, firm or company rendering services to the Company or of any company which is a subsidiary of the Company, whether by cash payment, gratuities, pensions, annuities, allowances, emoluments or by the allotment of shares or securities of the Company credited as paid up in full or in part or otherwise.

 

3.24.                      To employ experts to investigate and examine into the conditions, prospects, value, character and circumstances of any business concerns, undertakings, assets, property or rights.

 

3.25.                      To insure the life of any person who may, in the opinion of the Company, be of value to the Company, as having or holding for the Company interests, goodwill, or influence or otherwise and to pay the premiums on such insurance.

 

3.26.                      To distribute either upon a distribution of assets or division of profits among the Members of the Company in kind any property of the Company, and in particular any shares, debentures or securities of other companies belonging to the Company or of which the Company may have the power of disposing.

 

3.27.                      To give, whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription made or to be made by any person of or for any shares in the Company, or, where the Company is a subsidiary company, in its holding company.

 

3.28.                      To do and carry out all or any of the foregoing or following objects in any part of the world and either as principals, agents, contractors, trustees or otherwise, and either by or through agents, trustees or otherwise and either alone or in partnership or in conjunction with any other company, firm or person, provided that nothing herein contained shall empower the Company to carry on the business of insurance.

 

3.29.                      To apply for, purchase or otherwise acquire any patents, brevets d’invention, licences, trademarks, trade names, copyrights, industrial designs, know-how, concessions and other forms of intellectual property rights and the like conferring any exclusive or non-exclusive or limited or contingent rights to use, or any secret or other information as to any invention or process of the Company, or the acquisition of which may seem calculated directly or indirectly to benefit the Company, and to use, exercise, develop, or grant licences in respect of, or otherwise turn to account the property, rights or information so acquired.

 

3.30.                      To enter into partnership or into any arrangement for sharing profits, union of interests, co-operation, joint venture, reciprocal concession or otherwise with any person or company.

 

3.31.                      To acquire and undertake the whole or any part of the undertaking, business, property and liabilities of any person or company.

 

3.32.                      To adopt such means of making known the Company and its products and services as may seem expedient.

 

3.33.                      To acquire and carry on any business carried on by a subsidiary or a holding company of the Company or another subsidiary of a holding company of the Company.

 

3.34.                      To promote any company or companies for the purpose of acquiring all or any of the property and liabilities of this Company or for any other purpose which may seem directly or indirectly calculated to benefit this Company.

 

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3.35.                      To amalgamate with, merge with or otherwise become part of or associated with any other company or association in any manner permitted by law.

 

3.36.                      To make voluntary dispositions of all or any part of the property and rights of the Company and to make gifts thereof or gratuitous payments either for no consideration or for a consideration less than the market value of such property or rights or the amount of cash payment or by all or any such methods.

 

3.37.                      To receive voluntary dispositions of all or any part of the undertakings, properties, assets or rights of any other corporation and to receive gifts thereof or gratuitous payments either for no consideration or for a consideration less than the market value of such property or rights or the amount of cash payment or by all or any such methods.

 

3.38.                      To do and carry out all such other things, except the issuing of policies of insurance, as may be deemed by the Company capable of being carried on in connection with the above objects or any of them or calculated to enhance the value of or render profitable any of the Company’s undertakings, properties, assets or rights.

 

And it is hereby declared that (i) the word “company” in this clause, except where used in reference to this Company, shall be deemed to include any person, partnership, limited partnership, limited liability partnership, limited liability company, other corporate body, trust or other body of persons whether incorporated or not incorporated and whether domiciled in Ireland or elsewhere and that the objects of the Company as specified in each of the foregoing paragraphs of this clause shall be separate and distinct objects and shall not be in anyway limited or restricted by reference to or inference from the terms of any other paragraph or the name of the Company and (ii)  any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

 

4.                                       The liability of each Member is limited to the amount from time to time unpaid on such Member’s Shares.

 

5.                                       The authorised share capital of the Company is €25,000 and US$11,000,000 divided into 25,000 Euro Deferred Shares of €1.00 each, 1,000,000,000 Ordinary Shares of US$0.01 each and 100,000,000 Preferred Shares of US$0.01 each.

 

6.                                       The shares forming the capital, increased or reduced, may be increased or reduced and be divided into such classes and issued with any special rights, privileges and conditions or with such qualifications as regards preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended Articles of Association and regulations of the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Company’s Articles of Association for the time being.

 

7.                                       Capitalised terms that are not defined in this Memorandum of Association bear the same meaning as those given in the Articles of Association of the Company.

 

5



 

COMPANIES ACT 2014

 

A PUBLIC COMPANY LIMITED BY SHARES

 

ARTICLES OF ASSOCIATION

 

OF

 

NABRIVA THERAPEUTICS PUBLIC LIMITED COMPANY

 

6



 

TABLE OF CONTENTS

 

PRELIMINARY

9

 

 

REGISTERED OFFICE

12

 

 

SHARE CAPITAL; ISSUE OF SHARES

12

 

 

ORDINARY SHARES

13

 

 

EURO DEFERRED SHARES

14

 

 

PREFERRED SHARES

15

 

 

ISSUE OF WARRANTS

15

 

 

CERTIFICATES FOR SHARES

15

 

 

REGISTER OF MEMBERS

16

 

 

TRANSFER OF SHARES

16

 

 

REDEMPTION AND REPURCHASE OF SHARES

18

 

 

VARIATION OF RIGHTS OF SHARES

19

 

 

LIEN ON SHARES

19

 

 

CALLS ON SHARES

21

 

 

FORFEITURE

22

 

 

NON-RECOGNITION OF TRUSTS

23

 

 

TRANSMISSION OF SHARES

23

 

 

AMENDMENT OF MEMORANDUM OF ASSOCIATION; CHANGE OF LOCATION OF REGISTERED OFFICE; AND ALTERATION OF CAPITAL

23

 

 

CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE

25

 

 

GENERAL MEETINGS

25

 

 

NOTICE OF GENERAL MEETINGS

26

 

 

PROCEEDINGS AT GENERAL MEETINGS

26

 

 

VOTES OF MEMBERS

30

 

 

PROXIES AND CORPORATE REPRESENTATIVES

30

 

 

DIRECTORS

32

 

 

DIRECTORS’ AND OFFICERS’ INTERESTS

32

 

7



 

POWERS AND DUTIES OF DIRECTORS

34

 

 

MINUTES

35

 

 

DELEGATION OF THE BOARD’S POWERS

35

 

 

CHAIRPERSON AND EXECUTIVE OFFICERS

35

 

 

PROCEEDINGS OF DIRECTORS

36

 

 

RESIGNATION AND DISQUALIFICATION OF DIRECTORS

37

 

 

APPOINTMENT, ROTATION, REMOVAL AND NOMINATION OF DIRECTORS

38

 

 

SECRETARY

40

 

 

SEAL

40

 

 

DIVIDENDS, DISTRIBUTIONS AND RESERVES

40

 

 

CAPITALISATION

41

 

 

ACCOUNTS

42

 

 

AUDIT

43

 

 

NOTICES

43

 

 

UNTRACED HOLDERS

45

 

 

DESTRUCTION OF DOCUMENTS

46

 

 

WINDING UP

46

 

 

INDEMNITY

47

 

 

FINANCIAL YEAR

48

 

 

SHAREHOLDER RIGHTS PLAN

48

 

 

BUSINESS COMBINATION

48

 

8



 

PRELIMINARY

 

1.                                       Sections 43(2), 43(3), 65(2)-(7), 77-81, 83(3), 94(1), 95(1), 96(2)-(11), 124, 125, 126(2) to (8), 144(3)-(4), 148(2), 158-165, 178(2), 180(5), 181(1), 181(6), 182(2), 182(5), 183(3), 186(c)(i), 187, 188, 193, 218(3)-(5), 229, 230, 338(5)-(6), 618(1)(b), 620(8) 1090, 1092, and 1113 of the Companies Act shall not apply to the Company.  The provisions of the Companies Act which are stated therein to apply to a public limited company, save to the extent that its constitution is permitted to provide or state otherwise, will apply to the Company subject to the alterations contained in these Articles, and will, so far as not inconsistent with these Articles, bind the Company and its Members.

 

2.

 

2.1.                             In these Articles:

 

“address”

 

includes any number or address used for the purposes of communication by way of electronic mail or other electronic communication.

 

 

 

“Adoption Date”

 

means 23 June 2017.

 

 

 

“Articles” or “Articles of Association”

 

means these articles of association of the Company, as amended from time to time by Special Resolution.

 

 

 

“Assistant Secretary”

 

means any person appointed by the Board from time to time to assist the Secretary.

 

 

 

“Auditors”

 

means the persons for the time being performing the duties of the statutory auditors of the Company.

 

 

 

“Board”

 

means the board of Directors for the time being of the Company.

 

 

 

“1990 Regulations”

 

The Companies Act 1990 (Uncertificated Securities) Regulations 1996 (S.I. No. 68 of 1996) as may be amended from time to time.

 

 

 

“Chairperson”

 

means the chairperson of the Board from time to time and/or chairperson of a general meeting of the Company as the context may require.

 

 

 

“clear days”

 

means, in relation to a period of notice, that period excluding the day when the notice is given or deemed to be given and the day for which notice is being given or on which an action or event for which notice is being given is to occur or take effect.

 

 

 

“Companies Act”

 

means the Companies Act 2014 and every statutory modification, replacement and re-enactment thereof for the

 

9



 

 

 

time being in force.

 

 

 

“Company”

 

means Nabriva Therapeutics plc.

 

 

 

“Court”

 

means the Irish High Court.

 

 

 

“Directors”

 

means the directors for the time being of the Company.

 

 

 

“dividend”

 

includes dividends, final dividends, interim dividends and bonus dividends.

 

 

 

“electronic communication”

 

shall have the meaning given to those words in the Electronic Commerce Act 2000.

 

 

 

“electronic signature”

 

shall have the meaning given to those words in the Electronic Commerce Act 2000.

 

 

 

“Enterprise”

 

means the Company and any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise or entity which a person is or was serving at the request of the Company;

 

 

 

“Exchange”

 

means any securities exchange or other system on which the Shares of the Company may be listed or otherwise authorised for trading from time to time.

 

 

 

“Exchange Act”

 

means the Securities Exchange Act of 1934 of the United States of America.

 

 

 

“Member”

 

means a person who has agreed to become a member of the Company and whose name is entered in the Register of Members as a registered holder of Shares.

 

 

 

“Memorandum”

 

means the memorandum of association of the Company as amended from time to time by Special Resolution.

 

 

 

“month”

 

means a calendar month.

 

 

 

“Official”

 

means a director, officer, secretary, employee, trustee, agent, partner, managing member, fiduciary or other official of the Company or another Enterprise;

 

 

 

“Ordinary Resolution”

 

means an ordinary resolution of the Company’s Members within the meaning of section 191 of the Companies Act.

 

10



 

“paid-up”

 

means paid-up in accordance with the Companies Act as to the nominal value and any premium payable in respect of the issue of any Shares and includes credited as paid-up.

 

 

 

“Redeemable Shares”

 

means redeemable shares in accordance with the Companies Act.

 

 

 

“Register of Members” or “Register”

 

means the register of Members of the Company maintained by or on behalf of the Company, in accordance with the Companies Act.

 

 

 

“registered office”

 

means the registered office for the time being of the Company.

 

 

 

“Seal”

 

means the seal of the Company, if any, and includes every duplicate seal.

 

 

 

“Secretary”

 

means the person appointed by the Board to perform any or all of the duties of secretary of the Company and includes an Assistant Secretary and any person appointed by the Board or the Secretary to perform the duties of secretary of the Company, in each case, when acting in the capacity of the secretary of the Company.

 

 

 

“Share” and “Shares”

 

means a share or shares in the capital of the Company.

 

 

 

“Special Resolution”

 

means a special resolution of the Company’s Members within the meaning of section 191 of the Companies Act.

 

2.2.                             In these Articles (unless otherwise specified):

 

2.2.1.                   words importing the singular number include the plural number and vice-versa;

 

2.2.2.                   words importing the feminine gender include the masculine gender and the neuter and vice-versa;

 

2.2.3.                   words importing persons include any company, partnership or other body of persons, whether corporate or not, any trust and any government, governmental body or agency or public authority, whether of Ireland or elsewhere and references to a company, except where used in reference to the Company, shall be deemed to include any person, partnership, limited partnership, limited liability partnership, limited liability company, other corporate body, trust or other body of persons whether incorporated or not incorporated and whether domiciled in Ireland or elsewhere;

 

2.2.4.                   expressions referring to “written” and “in writing” shall be construed, unless the contrary intention appears, as including references to printing, lithography, photography and any other modes of representing or reproducing words in a visible

 

11



 

form except as provided in these Articles and/or where it constitutes writing in electronic form sent to the Company;

 

2.2.5.                   expressions referring to execution of any document shall include any mode of execution whether under seal or under hand or any mode of electronic signature;

 

2.2.6.                   references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced from time to time;

 

2.2.7.                   any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;

 

2.2.8.                   reference to “officer” or “officers” in these Articles means any executive that has been designated by the Company as an “officer” and, for the avoidance of doubt, shall not have the meaning given to such term in the Companies Act and any such officers shall not constitute officers of the Company within the meaning of section 2(1) of the Companies Act;

 

2.2.9.                   headings are inserted for reference only and shall be ignored in construing these Articles; and

 

2.2.10.            references to US$, USD, $ or dollars shall mean United States dollars, the lawful currency of the United States of America and references to €, euro, or EUR shall mean the euro, the lawful currency of Ireland.

 

REGISTERED OFFICE

 

3.                                       The registered office shall be at such place in Ireland as the Board from time to time shall decide.

 

SHARE CAPITAL; ISSUE OF SHARES

 

4.                                       The authorised share capital of the Company is €25,000 and US$11,000,000 divided into 25,000 Euro Deferred Shares of €1.00 each, 1,000,000,000 Ordinary Shares of US$0.01 each and 100,000,000 Preferred Shares of US$0.01 each.

 

5.                                       Subject to the provisions of these Articles relating to new Shares, the Shares shall be at the disposal of the Directors, and they may (subject to the provisions of the Companies Act) allot, issue, grant options over or otherwise dispose of them to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of the Company and its Members, but so that no Share shall be issued at a discount save in accordance with sections 71(4) and 1026 of the Companies Act, and so that, in the case of Shares offered to the public for subscription, the amount payable on application on each such Share shall not be less than one-quarter of the nominal amount of the Share and the whole of any premium thereon. To the extent permitted by the Companies Act, Shares may also be allotted by a committee of the Directors or by any other person where such committee or person is so authorised by the Directors.

 

6.                                       Subject to any requirement to obtain the approval of Members under any laws, regulations or the rules of any Exchange, the Board is authorised, from time to time, to grant such persons, for such periods and upon such terms as the Board deems advisable, options or awards to purchase or subscribe for any number of Shares of any class or classes or of any series of any class and other securities or ownership interests of the Company as the Board may deem advisable, and to cause warrants or other appropriate instruments evidencing such options or awards to be issued.

 

12



 

7.

 

7.1.                             The Directors are, for the purposes of section 1021 of the Companies Act, generally and unconditionally authorised to exercise all powers of the Company to allot and issue relevant securities (as defined by the said section 1021) up to the amount of the Company’s authorised but unissued share capital and to allot and issue any Shares acquired by or on behalf of the Company pursuant to the provisions of the Companies Act and held as treasury shares and, unless it is renewed or a longer period of time is allowed under applicable law, this authority shall expire five years from the Adoption Date.

 

7.2.                             The Directors are hereby empowered pursuant to sections 1022 and 1023(3) of the Companies Act to allot equity securities within the meaning of the said section 1023 for cash pursuant to the authority conferred by Article 7.1 as if section 1022 of the Companies Act did not apply to any such allotment.

 

7.3.                             The Company may before the expiry of the authorities conferred by Articles 7.1 and/or 7.2 make an offer or agreement which would or might require relevant securities (as defined in section 1021 of the Companies Act) and/or equity securities (as defined in section 1023 of the Companies Act), as the case may be, to be allotted after such expiry and the Board may allot relevant securities and/or equity securities in pursuance of such an offer or agreement as if the authorities conferred by Articles 7.1 and/or 7.2 had not expired.

 

7.4.                             The Company may issue permissible letters of allotment (as defined by section 1019 of the Companies Act) to the extent permitted by the Companies Act.

 

8.                                       The Company may pay commission to any person in consideration of any person subscribing or agreeing to subscribe, whether absolutely or conditionally, for the Shares in the Company or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any Shares in the Company on such terms and, subject to the provisions of the Companies Act and to such conditions as the Board may determine including by paying cash or allotting and issuing fully or partly paid Shares or any combination of the two. The Company may also on any issue of Shares pay such brokerage as may be lawful.

 

ORDINARY SHARES

 

9.                                       The rights and restrictions attaching to the Ordinary Shares shall be as follows:

 

9.1.                             subject to the right of the Company to set record dates for the purposes of determining the identity of Members entitled to notice of and/or to vote at a general meeting and any rules or regulations applicable to the conduct of any general meeting of the Company, the right to attend and speak at any general meeting of the Company and to exercise one vote per Ordinary Share held at any general meeting of the Company;

 

9.2.                             the right to participate pro rata in all dividends declared by the Company with respect to the Ordinary Shares; and

 

9.3.                             the right, in the event of the Company’s winding up, to participate pro rata with all other Ordinary Shares in the total assets of the Company.

 

10.                                The rights attaching to the Ordinary Shares shall be subject to the terms of issue of any series or class of Preferred Shares allotted by the Directors from time to time in accordance with Article 17.

 

11.

 

11.1.                      If an Ordinary Share is not listed on a securities market, a regulated market or another market recognised for the purposes of section 1072 of the Companies Act, in each case within the meaning of the Companies Act, it shall, unless the Board determines otherwise, be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement,

 

13



 

transaction or trade between the Company (including any agent or broker acting on behalf of the Company) and any person (who may or may not be a Member) pursuant to which the Company acquires or will acquire Ordinary Shares, or an interest in Ordinary Shares, from the relevant person. In these circumstances, the acquisition of such shares by the Company shall constitute the redemption of a Redeemable Share in accordance with the Companies Act. No resolution, whether special or otherwise, shall be required to be passed to deem any Ordinary Share a Redeemable Share.

 

11.2.                      If an Ordinary Share is listed on a securities market, a regulated market or another market recognised for the purposes of section 1072 of the Companies Act, in each case within the meaning of the Companies Act, the provisions of Article 11.1 shall apply unless the Board resolves, prior to the existence or creation of any relevant arrangement, that the arrangement concerned is to be treated as an acquisition of Shares pursuant to Article 33.3, in which case the arrangement shall be so executed.

 

12.                                All Ordinary Shares shall rank pari passu with each other in all respects.

 

EURO DEFERRED SHARES

 

13.                                The holders of the Euro Deferred Shares shall not be entitled to receive any dividend or distribution and shall not be entitled to receive notice of, nor to attend, speak or vote at, any general meeting of the Company. On a return of assets, whether on liquidation or otherwise, the Euro Deferred Shares shall entitle the holder thereof only to the repayment of the amounts paid up on such shares after repayment of the capital paid up on the Ordinary Shares plus the payment of $5,000,000 on each of the Ordinary Shares and the holders of the Euro Deferred Shares (as such) shall not be entitled to any further participation in the assets or profits of the Company.

 

14.                                The Company has the irrevocable authority at any time after the Adoption Date:

 

14.1.                      to acquire all or any of the fully paid Euro Deferred Shares otherwise than for valuable consideration in accordance with section 102 of the Companies Act and without obtaining the sanction of the holders thereof;

 

14.2.                      to appoint any person to execute on behalf of the holders of the Euro Deferred Shares remaining in issue (if any) a transfer thereof and/or an agreement to transfer the same otherwise than for valuable consideration to the Company or to such other person as the Company may nominate;

 

14.3.                      to cancel any acquired Euro Deferred Shares; and

 

14.4.                      pending such acquisition and/or transfer and/or cancellation, to retain the certificate (if any) for such Euro Deferred Shares.

 

15.                                In accordance with section 1040(3) of the Companies Act, the Company shall, not later than three (3) years after any acquisition by it of any Euro Deferred Shares as aforesaid, cancel such shares (except those which, or any interest of the Company in which, it shall have previously disposed of) and reduce the amount of the share capital by the nominal value of the shares so cancelled and the Board may take such steps as are required to enable the Company to carry out its obligations under that section without complying with sections 84 and 85 of the Companies Act, including passing resolutions in accordance with section 1040(5) of the Companies Act.

 

16.                                Neither the acquisition by the Company otherwise than for valuable consideration of all or any of the Euro Deferred Shares nor the redemption thereof nor the cancellation thereof by the Company in accordance with these Articles shall constitute a variation or abrogation of the rights or privileges attached to the Euro Deferred Shares, and accordingly the Euro Deferred Shares or any of them may be so acquired, redeemed and cancelled without any such consent or sanction on the part of the

 

14



 

holders thereof. The rights conferred upon the holders of the Euro Deferred Shares shall not be deemed to be varied or abrogated by the creation of further Shares ranking in priority thereto or pari passu therewith.

 

PREFERRED SHARES

 

17.                                The Directors are authorised to issue all or any of the authorised but unissued Preferred Shares from time to time in one or more classes or series, and to fix for each such class or series such voting power, full or limited, or no voting power, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions adopted by the Directors providing for the issuance of such class or series, including (but not limited to) the authority to provide that any such class or series may be:

 

17.1.                      redeemable at the option of the Company, or the holders, or both, with the manner of the redemption to be set by the Directors, and redeemable at such time or times, including upon a fixed date, and at such price or prices as the Directors may determine;

 

17.2.                      entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such conditions and at such times as the Directors may determine, and which may be payable in preference to, or in such relation to, the dividends payable on any other class or classes of Shares or any other series as the Directors may determine;

 

17.3.                      entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the Company as the Directors may determine; or

 

17.4.                      convertible into, or exchangeable for, Shares of any other class or classes of Shares, or of any other series of the same or any other class or classes of Shares, of the Company at such price or prices or at such rates of exchange and with such adjustments as the Directors may determine.

 

The Directors may at any time before the allotment of any Preferred Share by further resolution in any way amend the designations, preferences, rights, qualifications, limitations or restrictions, or vary or revoke the designations of such Preferred Shares.

 

18.                                The rights conferred upon the holder of any pre-existing Shares in the share capital of the Company shall be deemed not to be varied by the creation, issue and allotment of Preferred Shares in accordance with Article 17.

 

ISSUE OF WARRANTS

 

19.                                The Board may issue warrants to subscribe for any class of Shares or other securities of the Company on such terms as it may from time to time determine.

 

CERTIFICATES FOR SHARES

 

20.                                Unless otherwise provided for by the Board or the rights attaching to or by the terms of issue of any particular Shares, or to the extent required by any Exchange, depository or any operator of any clearance or settlement system or by law, no person whose name is entered as a Member in the Register of Members shall be entitled to receive a share certificate for any Shares of any class held by him or her (nor on transferring a part of holding, to a certificate for the balance).

 

21.                                Any share certificate, if issued, shall specify the number of Shares in respect of which it is issued and the amount paid thereon or the fact that they are fully paid, as the case may be, and may otherwise be in such form as shall be determined by the Board. Such certificates may be under Seal. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to

 

15



 

which they relate. The name and address of the person to whom the Shares represented thereby are issued, with the number of Shares and date of issue, shall be entered in the Register of Members. All certificates surrendered to the Company for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of Shares shall have been surrendered and cancelled. The Board may authorise certificates to be issued with the Seal and authorised signature(s) affixed by some method or system of mechanical or electronic process. In respect of a Share or Shares held jointly by several persons, the Company shall not be bound to issue a certificate or certificates to each such person, and the issue and delivery of a certificate or certificates to one of several joint holders shall be sufficient delivery to all such holders.

 

22.                                If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating such evidence, as the Board may prescribe, and, in the case of defacement or wearing out, upon delivery of the old certificate.

 

REGISTER OF MEMBERS

 

23.                                The Company shall maintain or cause to be maintained a Register of its Members in accordance with the Companies Act.

 

24.                                If the Board considers it necessary or appropriate, the Company may establish and maintain a duplicate Register or Registers of Members at such location or locations within or outside Ireland as the Board thinks fit. The original Register of Members shall be treated as the Register of Members for the purposes of these Articles and the Companies Act.

 

25.                                The Company, or any agent(s) appointed by it to maintain any duplicate Register of Members in accordance with these Articles shall, as soon as practicable and on a regular basis record, or procure the recording of, in the original Register of Members, all transfers of Shares effected on any duplicate Register of Members and shall at all times maintain the original Register of Members in such manner as to show at all times the Members for the time being and the Shares respectively held by them, in all respects in accordance with the Companies Act.

 

26.                                The Company shall not be bound to register more than four (4) persons as joint holders of any Share. If any Share shall stand in the names of two (2) or more persons, the person first named in the Register of Members shall be deemed the sole holder thereof as regards service of notices and, subject to the provisions of these Articles, all or any other matters connected with the Company.

 

TRANSFER OF SHARES

 

27.                                Subject to such of the restrictions of these Articles and to such of the conditions of issue or transfer as may be applicable, all transfers of Shares shall be effected by an instrument in writing (an “ instrument of transfer ”) in such form as the Board or the Secretary may approve. All such instruments of transfer must be left at the registered office or at such other place as the Board or the Secretary may specify and all such instruments of transfer shall be retained by the Company.

 

28.

 

28.1.                      In the case of transfers to Cede & Co (or to any successor thereto, or to any other affiliate or nominee of The Depositary Trust Company or of any successor to The Depositary Trust Company) the instrument of transfer shall not be effective until executed by:

 

28.1.1.                               the Secretary (or such person as may be nominated by the Secretary for this purpose) on behalf of the Company; and

 

28.1.2.                               by the transferor or alternatively by or on behalf of the transferor by the Secretary (or such person as may be nominated by the Secretary for this purpose) on behalf of the Company,

 

16



 

and the Company shall be deemed to have been irrevocably appointed agent for the transferor of such Share or Shares with full power to execute, complete and deliver in the name of and on behalf of the transferor of such Share or Shares all such transfers of Shares held by the Members in the share capital of the Company.

 

28.2.                      In the case of transfers other than those to Cede & Co (or to any successor thereto, or to any other affiliate or nominee of The Depositary Trust Company or of any successor to The Depositary Trust Company), the instrument of transfer of any Share shall be executed by the transferor or alternatively for and on behalf of the transferor by the Secretary (or such other person as may be nominated by the Secretary for this purpose) on behalf of the Company, and the Secretary (or relevant nominee), acting on behalf of the Company shall be deemed to have been irrevocably appointed agent for the transferor of such Share or Shares with full power to execute, complete and deliver in the name of and on behalf of the transferor of such Share or Shares all such transfers of Shares held by the Members in the share capital of the Company.

 

28.3.                      An instrument of transfer need not be executed by the transferee except to the extent required by the Companies Act. Any document which records the name of the transferor, the name of the transferee, the class and number of Shares agreed to be transferred and the date of the agreement to transfer the Shares, shall, once executed in accordance with this Article, be deemed to be a proper instrument of transfer for the purposes of section 94 of the Companies Act.

 

28.4.                      The transferor shall be deemed to remain the holder of the Share until the name of the transferee is entered on the Register in respect thereof, and neither the title of the transferee nor the title of the transferor shall be affected by any irregularity or invalidity in the proceedings in reference to the sale should the Board so determine.

 

28.5.                      The Company, at its absolute discretion and insofar as the Companies Act or any other applicable law permits, may, or may procure that a subsidiary of the Company shall, pay Irish stamp duty arising on a transfer of Shares on behalf of the transferee of such Shares of the Company. If stamp duty resulting from the transfer of Shares in the Company which would otherwise be payable by the transferee is paid by the Company or any subsidiary of the Company on behalf of the transferee, then in those circumstances, the Company shall, on its behalf or on behalf of its subsidiary (as the case may be), be entitled, but not required, to (i) seek reimbursement of the stamp duty from the transferee, (ii) set-off the stamp duty against any dividends payable to the transferee of those Shares or (iii) claim a first and permanent lien on the Shares on which stamp duty has been paid by the Company or its subsidiary for the amount of stamp duty paid.

 

28.6.                      Notwithstanding the provisions of these Articles and subject to any regulations made under section 1086 of the Companies Act or the 1990 Regulations (including any modification thereof or any regulations in substitution therefor made under the Companies Act or otherwise), title to any Shares in the Company may also be evidenced and transferred without a written instrument in accordance with section 1086 of the Companies Act or any regulations made thereunder or the 1990 Regulations (including any modification thereof or any regulations in substitution therefor made under the Companies Act or otherwise). The Board shall have power to permit any class of Shares to be held in uncertificated form and to implement any arrangements they think fit for such evidencing and transfer which accord with such regulations and in particular shall, where appropriate, be entitled to disapply or modify all or part of the provisions in these Articles with respect to the requirement for written instruments of transfer and share certificates (if any), in order to give effect to such regulations.

 

29.                                The Board may, without assigning any reason for its decision, decline to register any transfer of any Share which is not a fully paid Share. The Board may also, without assigning any reason, refuse to register a transfer of any Share unless:

 

17



 

29.1.                      the instrument of transfer is fully and properly completed and is lodged with the Company at the registered office or at such other place as the Board or the Secretary may specify accompanied by the certificate(s) for the Shares (if any) to which it relates (which shall upon registration of the transfer be cancelled) and such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer;

 

29.2.                      the instrument of transfer is in respect of only one class of Shares;

 

29.3.                      a registration statement under the Securities Act of 1933 (as amended) of the United States of America is in effect with respect to such transfer or such transfer is exempt from registration and, if requested by the Board, a written opinion from counsel reasonably acceptable to the Board is obtained to the effect that such transfer is exempt from registration;

 

29.4.                      the instrument of transfer is properly stamped (in circumstances where stamping is required);

 

29.5.                      in the case of a transfer to joint holders, the number of joint holders to which the Share is to be transferred does not exceed four;

 

29.6.                      it is satisfied, acting reasonably, that all applicable consents, authorisations, permissions or approvals of any governmental body or agency in Ireland or any other applicable jurisdiction required to be obtained under relevant law prior to such transfer have been obtained; and

 

29.7.                      it is satisfied, acting reasonably, that the transfer would not violate the terms of any agreement to which the Company (or any of its subsidiaries) and the transferor are party or subject.

 

30.                                If the Board shall refuse to register a transfer of any Share, it shall, within two (2) months after the date on which the transfer was lodged with the Company, send to each of the transferor and the transferee notice of such refusal.

 

31.                                The Company shall not be obligated to make any transfer to an individual under 18 years of age or to a person in respect of whom an order has been made by a competent court or official on the grounds that he or she is or may be suffering from mental disorder or is otherwise incapable of managing his or her affairs or under other legal disability.

 

32.                                Upon every transfer of Shares, the certificate (if any) held by the transferor shall be given up to be cancelled, and shall forthwith be cancelled accordingly, and subject to Article 20 a new certificate may be issued without charge to the transferee in respect of the Shares transferred to him or her, and if any of the Shares included in the certificate so given up shall be retained by the transferor, a new certificate in respect thereof may be issued to him or her without charge.

 

REDEMPTION AND REPURCHASE OF SHARES

 

33.                                Subject to the provisions of Chapter 6 of Part 3 and Chapter 5 of Part 17 of the Companies Act and the other provisions of this Article 33, and without prejudice to Article 17, the Company may:

 

33.1.                      pursuant to section 66(4) of the Companies Act, allot and issue any Shares of the Company which are to be redeemed or are liable to be redeemed at the option of the Company or the Member on such terms and in such manner as may be determined by the Board;

 

33.2.                      redeem Shares of the Company on such terms as may be contained in, or be determined pursuant to the provisions of, these Articles. Subject as aforesaid, the Company may cancel any Shares so redeemed or may hold them as treasury shares (as defined by section 106(1) of the Companies Act) and re-issue such treasury shares as Shares of any class or classes or cancel them;

 

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33.3.                      subject to or in accordance with the provisions of the Companies Act and without prejudice to any relevant special rights attached to any class of Shares, pursuant to section 105 and Chapter 5 of Part 17 of the Companies Act, acquire any of its own Shares (including any Redeemable Shares and without any obligation to acquire on any pro rata basis as between Members or Members of the same class) and may cancel any Shares so acquired or hold them as treasury shares (as defined by section 106(1) of the Companies Act) and may re-issue any such Shares as Shares of any class or classes or cancel them; or

 

33.4.                      convert any of its Shares into Redeemable Shares provided that the total number of Shares which shall be redeemable pursuant to this authority shall not exceed the limit in section 1071(b) of the Companies Act. No resolution of Members, whether special or otherwise, shall be required to be passed to convert any of the Company’s Shares into Redeemable Shares.

 

34.                                The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the Companies Act.

 

35.                                The holder of the Shares being redeemed or purchased shall be bound to deliver up to the Company, at its registered office or such other place as the Board shall specify, the certificate(s) (if any) thereof for cancellation and thereupon the Company shall pay to him or her the purchase or redemption monies or consideration in respect thereof.

 

VARIATION OF RIGHTS OF SHARES

 

36.                                Without prejudice to the authority conferred on the Directors pursuant to Article 17 to issue Preferred Shares in the capital of the Company, if at any time the share capital of the Company is divided into different classes or series of Shares, the rights attached to any class or series (unless otherwise provided by the terms of issue of the Shares of that class or series) may be varied or abrogated with the consent in writing of the holders of a majority of the issued Shares of that class or series entitled to vote on such variation or abrogation, or with the sanction of an Ordinary Resolution passed at a general meeting of the holders of the Shares of that class or series.

 

37.                                The provisions of these Articles relating to general meetings of the Company shall apply mutatis mutandis to every such general meeting of the holders of one class or series of Shares except that the necessary quorum shall be one or more persons holding or representing by proxy at least a majority of the issued Shares of the class or series.

 

38.                                The rights conferred upon the holders of the Shares of any class or series issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class or series, be deemed to be varied by (i) the creation or issue of further Shares ranking pari passu therewith; (ii) a purchase or redemption by the Company of its own Shares; or (iii) the creation or issue for value (as determined by the Board) of further Shares ranking as regards participation in the profits or assets of the Company or otherwise in priority to them. For the avoidance of doubt:

 

38.1.                      the issue, redemption or purchase of any of the 25,000 Euro Deferred Shares of €1.00 each or the 100,000,000 Preferred Shares of US$0.01 each shall not constitute a variation of the rights of the holders of Ordinary Shares; and

 

38.2.                      the issue of Preferred Shares or any class or series of Preferred Shares which rank pari passu with, or junior to, any existing Preferred Shares or class or series of Preferred Shares shall not constitute a variation of the existing Preferred Shares or class or series of Preferred Shares.

 

LIEN ON SHARES

 

39.                                The Company shall have a first and paramount lien on every Share (not being a fully paid Share) for all monies (whether presently payable or not) payable at a fixed time or called in respect of that Share.

 

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The Board, at any time, may declare any Share to be wholly or in part exempt from the provisions of this Article 39. The Company’s lien on a Share shall extend to all monies payable in respect of it.

 

40.                                The Company may sell in such manner as the Board determines any Share on which the Company has a lien if a sum in respect of which the lien exists is presently payable and is not paid within fourteen (14) clear days after notice demanding payment, stating that if the notice is not complied with the Share may be sold, has been given to the holder of the Share or to the person entitled to it by reason of the death, bankruptcy or insolvency of the holder or otherwise by operation of law or regulation (whether of Ireland or otherwise).

 

41.                                To give effect to a sale, the Board may authorise some person to execute an instrument of transfer of the Share(s) sold to, or in accordance with, the directions of the transferee. The transferee shall be entered in the Register as the holder of the Share(s) comprised in any such transfer and he or she shall not be bound to see to the application of the purchase monies nor shall his or her title to the Share be affected by any irregularity in, or invalidity of, the proceedings in reference to the sale, and after the name of the transferee has been entered in the Register, the remedy of any person aggrieved by the sale shall be in damages only and against the Company exclusively.

 

42.                                The net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the sum for which the lien exists as is presently payable and any residue (upon surrender to the Company for cancellation of the certificate for the Shares sold and subject to a like lien for any monies not presently payable as existed upon the Shares before the sale) shall be paid to the person entitled to the Shares at the date of the sale.

 

43.                                Whenever any law for the time being of any country, state or place imposes or purports to impose any immediate or future or possible liability upon the Company to make any payment or empowers any government or taxing authority or government official to require the Company to make any payment in respect of any Shares registered in the Register as held either jointly or solely by any Members or in respect of any dividends, bonuses or other monies due or payable or accruing due or which may become due or payable to such Member by the Company on, or in respect of, any Shares registered as mentioned above or for or on account or in respect of any Member and whether in consequence of:

 

(a)                                  the death of such Member;

 

(b)                                  the non-payment of any income tax or other tax by such Member;

 

(c)                                   the non-payment of any estate, probate, succession, death, stamp or other duty by the executor or administrator of such Member or by or out of his or her estate; or

 

(d)                                  any other act or thing;

 

in every such case (except to the extent that the rights conferred upon holders of any class of Shares renders the Company liable to make additional payments in respect of sums withheld on account of the foregoing):

 

43.1.                      the Company shall be fully indemnified by such Member or his or her executor or administrator from all liability;

 

43.2.                      the Company shall have a lien upon all dividends and other monies payable in respect of the Shares registered in the Register as held either jointly or solely by such Member for all monies paid or payable by the Company as referred to above in respect of such Shares or in respect of any dividends or other monies thereon or for or on account or in respect of such Member under or in consequence of any such law, together with interest at the rate of fifteen percent (15%) per annum (or such other rate as the Board may determine) thereon from the date of payment to date of repayment, and the Company may deduct or set off against such dividends or other

 

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monies so payable any monies paid or payable by the Company as referred to above together with interest at the same rate;

 

43.3.                      the Company may recover as a debt due from such Member or his or her executor or administrator (wherever constituted) any monies paid by the Company under or in consequence of any such law and interest thereon at the rate and for the period referred to above in excess of any dividends or other monies then due or payable by the Company; and

 

43.4.                      the Company may, if any such money is paid or payable by it under any such law as referred to above, refuse to register a transfer of any Shares by any such Member or his or her executor or administrator until such money and interest is set off or deducted as referred to above or, in the case that it exceeds the amount of any such dividends or other monies then due or payable by the Company, until such excess is paid to the Company.

 

44.                                Subject to the rights conferred upon the holders of any class of Shares, nothing in Article 43 will prejudice or affect any right or remedy which any law may confer or purport to confer on the Company. As between the Company and every such Member as referred to above (and, his or her executor, administrator and estate, wherever constituted), any right or remedy which such law shall confer or purport to confer on the Company shall be enforceable by the Company.

 

CALLS ON SHARES

 

45.                                Subject to the terms of allotment, the Board may make calls upon the Members in respect of any monies unpaid on their Shares and each Member (subject to receiving at least fourteen (14) clear days’ notice specifying when and where payment is to be made) shall pay to the Company as required by the notice the amount called on his or her Shares. A call may be required or permitted to be paid in instalments. A call may be revoked before receipt by the Company of a sum due thereunder, in whole or in part, and payment of a call may be postponed in whole or in part.

 

46.                                A call shall be deemed to have been made at the time when the resolution of the Board authorising the call was passed.

 

47.                                A person on whom a call is made shall (in addition to a transferee) remain liable notwithstanding the subsequent transfer of the Share in respect of which the call is made.

 

48.                                The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof.

 

49.                                If a call remains unpaid after it has become due and payable, the person from whom it is due and payable shall pay interest on the amount unpaid from the day it became due until it is paid at the rate fixed by the terms of allotment of the Share or in the notice of the call or, if no rate is fixed, at the appropriate rate (as defined by the Companies Act), but the Board may waive payment of the interest wholly or in part.

 

50.                                An amount payable in respect of a Share on allotment or at any fixed date, whether in respect of nominal value or by way of premium, shall be deemed to be a call and, if it is not paid, the provisions of these Articles shall apply as if that amount had become due and payable by virtue of a call.

 

51.                                Subject to the terms of allotment, the Board may make arrangements on the issue of Shares for a difference between the holders in the amounts and times of payment of calls on their Shares.

 

52.                                The Directors may, if they think fit, receive from any Member willing to advance the same all or any part of the monies uncalled and unpaid upon any Shares held by him or her, and upon all or any of the monies so advanced may pay (until the same would, but for such advance, become payable) interest at such rate as may be agreed upon between the Directors and the Member paying such sum in advance.

 

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FORFEITURE

 

53.                                If a Member fails to pay any call or instalment of a call on the day appointed for payment thereof, the Directors, at any time thereafter during such times as any part of the call or instalment remains unpaid, may serve a notice on him or her requiring payment of so much of the call or instalment as is unpaid together with any interest which may have accrued.

 

54.                                The notice shall state a further day (not earlier than the expiration of fourteen (14) clear days from the date of service of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or before the time appointed, the Shares in respect of which the call was made will be liable to be forfeited.

 

55.                                If the requirements of any such notice as aforesaid are not complied with, then at any time thereafter before the payment required by the notice has been made, any Shares in respect of which the notice has been given may be forfeited by a resolution of the Directors to that effect. The forfeiture shall include all dividends or other monies payable in respect of the forfeited Shares and not paid before forfeiture. The Board may accept a surrender of any Share liable to be forfeited hereunder.

 

56.                                On the trial or hearing of any action for the recovery of any money due for any call, it shall be sufficient to prove that the name of the Member sued is entered in the Register as the holder, or one of the holders, of the Shares in respect of which such debt accrued, that the resolution making the call is duly recorded in the minute book and that notice of such call was duly given to the Member sued, in pursuance of these Articles, and it shall not be necessary to prove the appointment of the Directors who made such call nor any other matters whatsoever, but the proof of the matters aforesaid shall be conclusive evidence of the debt.

 

57.                                A forfeited Share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the Directors think fit. Where for the purposes of its disposal, such a Share is to be transferred to any person, the Board may authorise some person to execute an instrument of transfer of the Share to that person. The Company may receive the consideration, if any, given for the Share on any sale or disposition thereof and may execute a transfer of the Share in favour of the person to whom the Share is sold or disposed of and thereupon he or she shall be registered as the holder of the Share and shall not be bound to see to the application of the purchase money, if any, nor shall his or her title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share.

 

58.                                A person whose Shares have been forfeited shall cease to be a Member in respect of the forfeited Shares, but nevertheless shall remain liable to pay to the Company all monies which, at the date of forfeiture, were payable by him or her to the Company in respect of the Shares, without any deduction or allowance for the value of the Shares at the time of forfeiture but his or her liability shall cease if and when the Company shall have received payment in full of all such monies in respect of the Shares.

 

59.                                A statement in writing that the maker of the statement is a Director or the Secretary of the Company, and that a Share in the Company has been duly forfeited on the date stated in the statement, shall be conclusive evidence of the facts therein stated as against all persons claiming to be entitled to the Share.

 

60.                                The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the nominal value of the Share or by way of premium, as if the same had been payable by virtue of a call duly made and notified.

 

61.                                The Directors may accept the surrender of any Share which the Directors have resolved to have been forfeited upon such terms and conditions as may be agreed and, subject to any such terms and conditions, a surrendered Share shall be treated as if it has been forfeited.

 

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NON-RECOGNITION OF TRUSTS

 

62.                                The Company shall not be obligated to recognise any person as holding any Share upon any trust (except as is otherwise provided in these Articles or to the extent required by law) and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future, or partial interest in any Share, or any interest in any fractional part of a Share, or (except only as is otherwise provided by these Articles or the Companies Act) any other rights in respect of any Share except an absolute right to the entirety thereof in the registered holder. This shall not preclude the Company from requiring the Members or a transferee of Shares to furnish the Company with information as to the beneficial ownership of any Share when such information is reasonably required by the Company.

 

TRANSMISSION OF SHARES

 

63.                                If a Member dies, the survivor or survivors where the deceased was a joint holder, and the legal personal representatives of the deceased where he or she was a sole holder or the only survivor of joint holders, shall be the only persons recognised by the Company as having any title to his or her interest in the Shares; but nothing herein contained shall release the estate of any deceased holder from any liability in respect of any Share which had been jointly held by him or her solely or jointly with other persons.

 

64.                                A person becoming entitled to a Share in consequence of the death, bankruptcy, liquidation or insolvency of a Member, or otherwise becoming entitled to a Share by operation of any law, directive or regulation (whether of Ireland, the European Union, or any other jurisdiction) may elect, upon such evidence of title being produced as the Directors or the Secretary (or such other person as may be nominated by the Secretary for this purpose) may reasonably require at any time and from time to time, and subject as further provided in this Article, either to become the holder of the Share or to have some person nominated by him or her registered as the transferee of such Share. If he or she elects to become the holder of the Share, he or she shall give notice to the Company to that effect and, where the Directors or the Secretary (or such other person as may be nominated by the Secretary for this purpose) are satisfied with the evidence of title produced to them, they may register such person as the holder of the Share, subject to the other provisions of these Articles and of the Companies Act. If he or she elects to have another person registered as the transferee of the relevant Share, he or she shall execute an instrument of transfer of the Share to that person.  All of these Articles relating to the transfer of Shares shall apply to the notice or instrument of transfer as if it were an instrument of transfer executed by the relevant Member and the event giving rise to the entitlement of the relevant person to the Shares had not occurred.

 

65.                                A person becoming entitled to a Share by transmission shall have the rights to which he or she would be entitled if he or she were the holder of the Share (including the right to receive and give a valid discharge for any dividends, distributions or other moneys payable on or in respect of the Share), except that, before being registered as the holder of the Share, he or she shall not be entitled in respect of it to receive notices of, or to attend or vote at, any meeting of the Company or at any separate meeting of holders of any class of Shares in the Company. The Directors or the Secretary (or such other person as may be nominated by the Secretary for this purpose), at any time, may give notice requiring any such person to elect either to be registered himself or herself as the holder of the Share or to transfer the Share and, if the notice is not complied with within ninety (90) days, the Directors or the Secretary (or such other person as may be nominated by the Secretary for this purpose) thereupon may withhold payment of all dividends, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with.

 

AMENDMENT OF MEMORANDUM OF ASSOCIATION;
CHANGE OF LOCATION OF REGISTERED OFFICE; AND
ALTERATION OF CAPITAL

 

66.                                The Company may by Ordinary Resolution (or as otherwise provided in these Articles, or determined by the Board or permitted under applicable law):

 

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66.1.                      divide its share capital into several classes and attach to them respectively any preferential, deferred, qualified or special rights, privileges or conditions;

 

66.2.                      increase the authorised share capital by such sum to be divided into Shares of any nominal value;

 

66.3.                      consolidate and divide all or any of the Shares into Shares of a larger nominal value than the existing Shares;

 

66.4.                      subdivide the Shares, or any of them, into Shares of a smaller nominal value, so however, that in the sub-division the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in the case of the Share from which the reduced Share is derived (and so that the Board may determine that, as between the holders of the Shares resulting from such sub-division, one or more of the Shares may have, as compared with the others, any such preferred, deferred or other rights or be subject to any such restrictions as the Company has power to attach to unissued or new Shares);

 

66.5.                      cancel any Shares which have not been taken or agreed to be taken by any person and diminish the amount of the Company’s share capital by the amount of the Shares so cancelled;

 

66.6.                      increase the nominal value of any of the Shares by the addition to them of any undenominated capital;

 

66.7.                      reduce the nominal value of any of the Shares by the deduction from them of any part of that value, subject to the crediting of the amount of the deduction to undenominated capital, other than the share premium account;

 

66.8.                      convert any undenominated capital into Shares for allotment as bonus shares to holders of existing Shares; and/or

 

66.9.                      subject to applicable law, change the currency denomination of its share capital.

 

67.                                Subject to the provisions of the Companies Act, the Company may:

 

67.1.                      by Special Resolution (or as otherwise required or permitted by applicable law) change its name, alter or add to the Memorandum with respect to any objects, powers or other matters specified therein or alter or add to these Articles;

 

67.2.                      by Special Resolution (or as otherwise required or permitted by these Articles and applicable law (including, without limitation, section 83 of the Companies Act)) reduce its issued share capital and any capital redemption reserve fund, share premium account or undenominated capital account. In relation to such reductions, the Company may by Special Resolution (or as otherwise required or permitted by these Articles and applicable law) determine the terms upon which the reduction is to be effected, including in the case of a reduction of part only of any class of Shares, those Shares to be affected; and

 

67.3.                      by resolution of the Directors, change the location of its registered office.

 

68.                                Where any difficulty arises in regard to any alteration or reorganisation of the share capital of the Company, the Board may settle the same as they think expedient and in particular, may arrange to sell any Shares representing fractions for the best price reasonably obtainable to any person and distribute the proceeds of sale in due proportion among those Members, and the Board may authorise any person to execute an instrument of transfer of the Shares to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall his or her title to the Shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale.

 

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CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE

 

69.                                For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any dividend, or in order to make a determination of Members for any other proper purpose, the Board may provide, subject to the requirements of section 174 of the Companies Act, that the Register of Members shall be closed for transfers at such times and for such periods, not exceeding in the whole thirty (30) days in each year, as it may determine. If the Register of Members shall be so closed for the purpose of determining Members entitled to notice of, or to vote at, a meeting of Members, such Register of Members shall be so closed for at least five (5) days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register of Members.

 

70.                                In lieu of, or apart from, closing the Register of Members, the Board may fix in advance a date as the record date (a) for any such determination of Members entitled to notice of or to vote at a meeting of the Members, which record date shall not be more than sixty (60) days before the date of such meeting, and (b) for the purpose of determining the Members entitled to receive payment of any dividend or other distribution, or in order to make a determination of Members for any other proper purpose, which record date shall not be more than sixty (60) days prior to the date of payment of such dividend or other distribution or the taking of any action to which such determination of Members is relevant.

 

71.                                If the Register of Members is not so closed and no record date is fixed for the determination of Members entitled to notice of or to vote at a meeting of Members, the date immediately preceding the date on which notice of the meeting is deemed given under these Articles shall be the record date for such determination of Members. Where a determination of Members entitled to vote at any meeting of Members has been made as provided in these Articles, such determination shall apply to any adjournment thereof; provided, however, that the Directors may fix a new record date of the adjourned meeting, if they think fit.

 

GENERAL MEETINGS

 

72.                                The Board shall convene and the Company shall hold annual general meetings in accordance with the requirements of the Companies Act.

 

73.                                The Board may, whenever it thinks fit, and shall, on the requisition in writing of Members holding such number of Shares as is prescribed by, and made in accordance with the Companies Act, convene a general meeting in the manner required by the Companies Act. All general meetings other than annual general meetings shall be called extraordinary general meetings. Where any provision of the Companies Act confers rights on the members of a company to convene a general meeting without first directing the board of directors to convene a general meeting and expresses such rights to apply save where a company’s articles of association or constitution provides otherwise, such rights shall not apply to the Members of the Company.

 

74.                                The Company shall in each year hold a general meeting as its annual general meeting in addition to any other meeting in that year, and shall specify the meeting as such in the notice calling it. Not more than fifteen (15) months shall elapse between the date of one annual general meeting of the Company and that of the next. Each general meeting shall be held at such time and place as designated by the Board and as specified in the notice of meeting.  Subject to section 176 of the Companies Act, all general meetings may be held outside of Ireland.

 

75.                                The Board may authorise the Secretary to postpone or cancel any general meeting called in accordance with the provisions of these Articles (other than a meeting requisitioned by the Members in accordance with the Companies Act or the postponement or cancellation of which would be contrary to the Companies Act, law or a Court order pursuant to the Companies Act) if the Board considers that, for any reason, it is impractical or unreasonable to hold the general meeting, provided that notice of postponement or cancellation is given to each Member before the time for such meeting. Fresh notice

 

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of the date, time and place for any postponed meeting shall be given to each Member in accordance with the provisions of these Articles.

 

NOTICE OF GENERAL MEETINGS

 

76.                                Subject to the provisions of the Companies Act allowing a general meeting to be called by shorter notice, an annual general meeting, and an extraordinary general meeting called for the passing of a Special Resolution, shall be called on at least twenty-one (21) clear days’ notice and all other extraordinary general meetings shall be called on at least fourteen (14) clear days’ notice. Such notice shall state the date, time, place of the meeting and the general nature of the business to be considered. Every notice shall specify such other details as are required by applicable law or the relevant code, rules and regulations applicable to the listing of the Shares on any Exchange.

 

77.                                A general meeting of the Company shall, whether or not the notice specified in Article 76 has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been duly convened if applicable law so permits and it is so agreed by the Auditors and by all the Members entitled to attend and vote thereat or by their proxies.

 

78.                                The notice convening an annual general meeting shall specify the meeting as such, and the notice convening a meeting to pass a Special Resolution shall specify the intention to propose the resolution as a Special Resolution. Notice of every general meeting shall be given in any manner permitted by these Articles to all Members.

 

79.                                There shall appear with reasonable prominence in every notice of general meeting of the Company a statement that a Member entitled to attend and vote is entitled to appoint one or more proxies to attend and vote instead of him or her and that a proxy need not be a Member of the Company.

 

80.                                The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings of that meeting.

 

81.                                In cases where instruments of proxy are sent out with notices, the accidental omission to send such instrument of proxy to, or the non-receipt of such instrument of proxy by, any person entitled to receive notice shall not invalidate the notice or any resolution passed or any proceeding at any such meeting. A Member present, either in person or by proxy, at any general meeting of the Company or of the holders of any class of Shares in the Company will be deemed to have received notice of that meeting and, where required, of the purpose for which it was called.

 

PROCEEDINGS AT GENERAL MEETINGS

 

82.                                The business of annual general meetings shall include:

 

82.1.                      the consideration of the Company’s statutory financial statements and the report of the Directors and the report of the Auditors on those statements and that report;

 

82.2.                      the review by the Members of the Company’s affairs;

 

82.3.                      the appointment or re-appointment of Auditors;

 

82.4.                      the authorisation of the Directors to approve the remuneration of the Auditors; and

 

82.5.                      the election and re-election of Directors.

 

83.                                No business shall be transacted at any general meeting unless a quorum is present. One or more Members present in person or by proxy (whether or not such Member actually exercises his voting rights in whole, in part or at all at the relevant general meeting) holding not less than a majority of the

 

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issued and outstanding Shares of the Company entitled to vote at the meeting in question shall be a quorum.

 

84.                                If within 15 minutes (or such longer time not exceeding one hour as the Chairperson of the meeting may decide to wait) after the time appointed for the holding of the meeting a quorum is not present, or if during the meeting a quorum ceases to be present, the meeting (i) if convened on the requisition of Members, shall be dissolved; and (ii) in any other case, shall stand adjourned to the same day in the next week or to such other day and at such other time and place as the Chairperson (or, in default, the Board) may, subject to the provisions of the Companies Act, determine. If at such adjourned meeting a quorum is not present within 15 minutes after the time appointed for holding it the adjourned meeting shall be dissolved.

 

85.                                If the Board wishes to make this facility available to Members for any or all general meetings of the Company, a Member may participate in any general meeting of the Company by means of a telephone, video, electronic or similar communication equipment by way of which all persons participating in such meeting can communicate with each other simultaneously and instantaneously and such participation shall be deemed to constitute presence in person at the meeting.

 

86.                                Each Director and the Auditors shall be entitled to attend and speak at any general meeting of the Company.

 

87.                                The Chairperson, or in his absence, some other Director nominated by the Directors shall preside at every general meeting of the Company, but if at any meeting neither the Chairperson, nor such other Director, is present within fifteen minutes after the time appointed for the holding of the meeting, or if none of them are willing to act as Chairperson, the Directors present shall choose some Director present to be Chairperson, or if no Director is present, or if all the Directors present decline to take the chair, the Members present shall choose some Member present to be Chairperson.

 

88.                                The Chairperson of the meeting may, and shall if so directed by the meeting (upon the passage of an Ordinary Resolution), adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished, or which might have been transacted, at the meeting from which the adjournment took place. When a general meeting is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting; save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned general meeting. Without prejudice to any other power of adjournment which the Chairperson of the meeting may have under these Articles, at common law or otherwise, the Chairperson may, without the consent of the meeting, adjourn the meeting from time to time (or indefinitely) and from place to place if he or she decides that it is necessary or appropriate to do so in order to: (a) secure the proper and orderly conduct of the meeting (b) give all persons entitled to do so an opportunity of attending the meeting (c) give all persons entitled to do so a reasonable opportunity of speaking and voting at the meeting or (d) ensure that the business of the meeting is properly concluded or disposed of, including (without limitation) for the purpose of determining the result of a poll.

 

89.

 

89.1.                      Subject to the Companies Act, a resolution may only be put to a vote at a general meeting of the Company or of any class of Members if:

 

(a)                                  it is specified in the notice of meeting;

 

(b)                                  it is proposed by or at the direction of the Board;

 

(c)                                   it is proposed at the direction of a court of competent jurisdiction;

 

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(d)                                  it is proposed pursuant to, and in accordance with, the procedures and requirements of Article 90 or 155;

 

(e)                                   it is proposed on the requisition in writing of such number of Members as is prescribed by, and is made in accordance with, section 178(3) of the Companies Act;

 

(f)                                    the Chairperson of the meeting decides that the resolution may properly be regarded as within the scope of the meeting; or

 

(g)                                   it has not been withdrawn by the Chairperson in accordance with Article 89.2.

 

89.2.                      The Chairperson of the meeting may, at his sole discretion, withdraw any resolution to be put to a vote at a general meeting of the Company or of any class of Members and such withdrawal shall not invalidate the proceedings of such meeting and shall be without prejudice to any other resolutions to be put to a vote at such general meeting of the Company or any class of Members.

 

89.3.                      No amendment may be made to a resolution, at or before the time when it is put to a vote, unless the Chairperson of the meeting decides that the amendment or the amended resolution may properly be put to a vote at that meeting.

 

89.4.                      If the Chairperson of the meeting rules a resolution or an amendment to a resolution admissible or out of order (as the case may be), the proceedings of the meeting or on the resolution in question shall not be invalidated by any error in his or her ruling. Any ruling by the Chairperson of the meeting in relation to a resolution or an amendment to a resolution shall be final and conclusive.

 

90.

 

90.1.                      For business to be properly requested by a Member to be brought before a general meeting, (other than nominations of directors, which may only be made in accordance with Article 155.1) the Member must:

 

(a)                                  be a Member of the Company at the time of the giving of the notice for such general meeting;

 

(b)                                  be entitled to vote at such meeting; and

 

(c)                                   have given timely and proper notice in writing to the Secretary in accordance with this Article 90.

 

90.2.                      To be timely for an annual general meeting, a Member’s notice to the Secretary must be delivered to or mailed and received at the registered office of the Company (i) with respect to the first annual general meeting, not later than the 10 th  day following the day on which public announcement of the date of such annual general meeting is first made by the Company and (ii) with respect to all other annual general meetings, not less than ninety (90) days nor (except for shareholder proposals subject to Rule14a-8(a)(3)(i) of the Exchange Act) more than one hundred and twenty (120) days prior to the first anniversary of the date of the notice convening the preceding year’s annual general meeting provided, however, that if the date of the annual general meeting is changed by more than thirty (30) days from the first anniversary date of the preceding year’s annual general meeting, the Member’s notice must be so received not earlier than one hundred and twenty (120) days prior to such annual general meeting and not later than the close of business on the later of (x) the 90 th  day prior to such annual general meeting or (y) the 10 th  day following the day on which a public announcement of the date of the annual general meeting is first made. In no event shall the adjournment or postponement of any annual general meeting, or the public announcement of such an adjournment or postponement,

 

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commence a new time period (or extend any time period) for the giving of a Member’s notice to the Secretary pursuant to this Article 90.2.

 

90.3.                      To be timely for a general meeting (other than an annual general meeting), a Member’s notice to the Secretary must be delivered to or mailed and received at the registered office of the Company not less than ninety (90) days nor (except for shareholder proposals subject to Rule14a-8(a)(3)(i) of the Exchange Act) more than one hundred and twenty (120) days prior to the date of such meeting or, if the first public announcement of the date of such meeting is less than 100 days prior to the date of such meeting, the 10 th  day following the date on which public announcement is first made of the date of the general meeting. In no event shall the adjournment or postponement of any general meeting, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a Member’s notice to the Secretary pursuant to this Article 90.3.

 

90.4.                      To be in proper written form, a Member’s notice shall set forth as to each matter such Member proposes to bring before the meeting:

 

(a)                                               a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting;

 

(b)                                                the name and address, as they appear in the Register of Members, of such Member;

 

(c)                                                 the class and number of Shares of the Company which are beneficially owned by the Member and by any other person on whose behalf such business is raised; and

 

(d)                                                any material interest of the Member, or of any other person on whose behalf such business is raised, in such business.

 

90.5.                     The Chairperson shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of this Article and, if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.

 

91.                                Except where a greater majority is required by the Companies Act or where these Articles provide otherwise, any question proposed for a decision of the Members at any general meeting of the Company or a decision of any class of Members at a separate meeting of any class of Shares shall be decided by an Ordinary Resolution.

 

92.                                At any general meeting, a resolution put to the vote of the meeting shall be decided on a poll. The Board or the Chairperson may determine the manner in which the poll is to be taken and the manner in which the votes are to be counted.

 

93.                                A poll demanded on the election of the Chairperson or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the Chairperson of the meeting directs, and any business other than that on which a poll has been demanded may be proceeded with pending the taking of the poll.

 

94.                                No notice need be given of a poll not taken immediately. The result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded. On a poll, a Member entitled to more than one vote need not use all his or her votes or cast all the votes he or she uses in the same way.

 

95.                                If authorised by the Board, any vote taken by written ballot may be satisfied by a ballot submitted by electronic and/or telephonic transmission, provided that any such electronic or telephonic submission must either set forth or be submitted with information from which it can be determined that the electronic or telephonic submission has been authorised by the Member or proxy.

 

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96.                                The Board may adopt such rules, regulations and procedures for the conduct of any meeting of the Members as it deems appropriate. Except to the extent inconsistent with any applicable rules, regulations or procedures adopted by the Board, the Chairperson of any meeting may adopt such rules, regulations and procedures for the meeting, and take such actions with respect to the conduct of the meeting, as the Chairperson of the meeting deems appropriate. The rules, regulations and procedures adopted may include, without limitation, ones that (i) establish an agenda or order of business, (ii) are intended to maintain order and safety at the meeting, (iii) contain limitations on attendance at or participation in the meeting to Members of record of the Company, their duly authorised proxies or such other persons as the Chairperson of the meeting shall determine, (iv) contain restrictions on entry to the meeting after the time fixed for its commencement and (v) limit the time allotted to Member questions or comments.

 

VOTES OF MEMBERS

 

97.                                Subject to any rights or restrictions for the time being attached to any class or classes of Shares, every Member present in person or by proxy shall have one vote for each Share registered in his or her name in the Register of Members.

 

98.                                In the case of joint holders of record the vote of the senior holder who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members.

 

99.                                A Member of unsound mind, a Member who has made an enduring power of attorney, or in respect of whom an order has been made by any court, having jurisdiction in cases of unsound mind, may vote by his or her committee, donee of an enduring power of attorney, receiver, guardian or other person appointed by the foregoing court, and any such committee, donee of an enduring power of attorney, receiver, guardian or other persons appointed by the foregoing court may vote by proxy.

 

100.                         No Member shall be entitled to vote at any general meeting unless he or she is registered as a Member on the record date for such meeting.

 

101.                         No objection shall be raised to the qualification of any voter except at the general meeting or adjourned general meeting at which the vote objected to is given or tendered and every vote not disallowed at such general meeting shall be valid for all purposes. Any such objection made in due time shall be referred to the Chairperson of the general meeting whose decision shall be final and conclusive.

 

102.                         Unless the Board decides otherwise, no Member shall be entitled to be present or vote at any meeting either personally or by proxy until such Member has paid all calls due and payable on every Share held by him or her whether alone or jointly with any other person together with interest and expenses (if any) to the Company.

 

103.                         Section 193 of the Companies Act will not apply to the Company and no resolutions in writing may be validly passed by the Members.

 

PROXIES AND CORPORATE REPRESENTATIVES

 

104.                         Votes may be given either personally or by proxy. A Member may appoint more than one proxy or the same proxy under one or more instruments to attend and vote at a meeting and may appoint a proxy to vote both in favour of and against the same resolution in such proportion as specified in the instrument appointing the proxy.

 

105.

 

105.1.               Every Member entitled to attend and vote at a general meeting may appoint a proxy to attend, speak and vote on his or her behalf and may appoint more than one proxy to attend, speak and vote at the same meeting. The appointment of a proxy or corporate representative shall be in

 

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such form and may be accepted by the Company at such place and at such time as may be specified in the notice convening the meeting or in any other information sent to the Members by or on behalf of the Board in relation to the meeting, subject to applicable requirements of the United States Securities and Exchange Commission and any Exchange on which the Shares are listed.

 

105.2.               Without limiting the foregoing, the Board or the Secretary may from time to time permit appointments of a proxy to be made by means of an electronic or internet communication or facility and may in a similar manner permit supplements to, or amendments or revocations of, any such electronic or internet communication or facility to be made. For the avoidance of doubt, such appointments of proxy made by electronic or internet communications (as permitted by the Board or the Secretary) will be deemed to be deposited at the place specified for such purpose once received by the Company. The Board or the Secretary may in addition prescribe the method of determining the time at which any such electronic or internet communication or facility is to be treated as deposited at the place specified for such purpose. The Board may treat any such electronic or internet communication or facility which purports to be or is expressed to be sent on behalf of a Member as sufficient evidence of the authority of the person sending that instruction to send it on behalf of that Member.

 

106.                         Any body corporate which is a Member of the Company may authorise such person or persons as it thinks fit to act as its representative at any meeting of the Company or of any class of Members of the Company and the person or persons so authorised shall be entitled to exercise the same powers on behalf of the body corporate which he or she represents as that body corporate could exercise if it were an individual Member of the Company. The Company may require evidence from the body corporate of the due authorisation of such person or persons to act as the representative of the relevant body corporate.

 

107.                         An appointment of proxy relating to more than one meeting (including any adjournment thereof) having once been received by the Company for the purposes of any meeting shall not require to be delivered, deposited or received again by the Company for the purposes of any subsequent meeting to which it relates.

 

108.                         Receipt by the Company of an appointment of proxy in respect of a meeting shall not preclude a Member from attending and voting at the meeting or at any adjournment thereof which attendance and voting will automatically cancel any proxy previously submitted.

 

109.                         An appointment of proxy shall be valid, unless the contrary is stated therein, for any adjournment of the meeting as well as for the meeting to which it relates.

 

110.                         A vote given in accordance with the terms of an appointment of proxy or a resolution authorising a representative to act on behalf of a body corporate shall be valid notwithstanding the death or insanity of the principal, or the revocation of the appointment of proxy or of the authority under which the proxy was appointed or of the resolution authorising the representative to act or transfer of the Share in respect of which the proxy was appointed or the authorisation of the representative to act was given, provided that no notice in writing (whether in electronic form or otherwise) of such death, insanity, revocation or transfer shall have been received by the Company at the registered office before the commencement of the meeting or adjourned meeting at which the appointment of proxy is used or at which the representative acts.

 

111.                         The Board may send, at the expense of the Company and subject to applicable law (including the rules and regulations of the United States Securities and Exchange Commission), by post, electronic mail or otherwise, to the Members forms for the appointment of a proxy (with or without stamped envelopes for their return) for use at any general meeting or at any class meeting, either in blank or nominating any one or more of the Directors or any other persons in the alternative.

 

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DIRECTORS

 

112.                         The number of Directors on the Board shall be not less than two (2) nor more than 12. The authorised number of Directors (within such fixed maximum and fixed minimum numbers) shall be determined solely by the Board and, for the avoidance of doubt, shall not require approval or ratification by the Company in general meeting.

 

113.                         The remuneration to be paid to the Directors shall be such remuneration as the Directors in their sole discretion shall determine. The Directors shall also be entitled to be paid their travelling, hotel and other expenses properly incurred by them in going to, attending and returning from meetings of the Directors, or any committee of the Directors, or general meetings of the Company, or otherwise in connection with the business of the Company, or to receive a fixed allowance in respect thereof as may be determined by the Board from time to time, or a combination partly of one such method and partly the other. The amount, rate or basis of the remuneration or expenses to be paid to the Directors shall not require approval or ratification by the Company in general meeting. A Director is expressly permitted (for the purposes of section 228(1)(d) of the Companies Act) to use the Company’s property pursuant to or in connection with: the exercise or performance of his duties, functions and powers as Director or employee; the terms of any contract of service or employment or letter of appointment; and, or in the alternative, any other usage authorised by the Directors (or a person authorised by the Directors) from time to time; and including in each case for a Director’s own benefit or for the benefit of another person.

 

114.                         The Board may approve additional remuneration to any Director undertaking any special work or services for, or undertaking any special mission on behalf of, the Company other than his or her ordinary routine work as a Director. Any fees paid to a Director who is also counsel or solicitor to the Company, or otherwise serves it in a professional capacity, shall be in addition to his or her remuneration as a Director.

 

115.                         The salary or remuneration of a Director appointed to hold employment or executive office may be a fixed sum of money, or wholly or in part governed by business done or profits made, or as otherwise decided by the Board (including, for the avoidance of doubt, by the Board acting through a duly authorised Board committee), and may be in addition to or instead of a fee payable to such Director for his or her services as Director pursuant to these Articles.

 

116.                         Members of special or standing committees may be allowed like compensation for service on any such committees or for attending committee meetings, or both.

 

DIRECTORS’ AND OFFICERS’ INTERESTS

 

117.                         A Director or an officer of the Company who is in any way, whether directly or indirectly, interested in a contract, transaction or arrangement or proposed contract, transaction or arrangement with the Company shall, in accordance with section 231 of the Companies Act, declare the nature of his or her interest at the first opportunity either (a) at a meeting of the Board at which the question of entering into the contract, transaction or arrangement is first taken into consideration, if the Director or officer of the Company knows this interest then exists, or in any other case, at the first meeting of the Board after learning that he or she is or has become so interested or (b) by providing a general notice to the Directors declaring that he or she is a Director or an officer of, or has an interest in, a person and is to be regarded as interested in any transaction or arrangement made with that person, and after giving such general notice it shall not be necessary to give special notice relating to any particular transaction.

 

118.                         A Director may hold any other office or place of profit under the Company (other than the office of its Auditors) in conjunction with his or her office of Director for such period and on such terms as to remuneration and otherwise as the Board may determine.

 

119.                         Nothing in section 228(1)(e) of the Companies Act shall restrict a Director from entering into any commitment which has been approved by the Board or has been approved pursuant to such authority as may be delegated by the Board in accordance with these Articles. It shall be the duty of each

 

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Director to obtain the prior approval of the Board, before entering into any commitment permitted by sections 228(1)(e)(ii) and 228(2) of the Companies Act.

 

120.                         A Director may act by himself or herself or by his or her firm in a professional capacity for the Company (other than as its Auditors) and he or she or his or her firm shall be entitled to remuneration for professional services as if he or she were not a Director.

 

121.                         A Director may be or become a director, managing director, joint managing director, deputy managing director, executive director, manager or other officer or member of any other entity or otherwise interested in any entity promoted by the Company or in which the Company may be interested as member or otherwise, and no such Director shall be accountable to the Company for any remuneration or other benefits received by him or her as a Director, managing director, joint managing director, deputy managing director, executive director, manager or other officer or member of such other entity; provided that he or she has declared the nature of his or her position with, or interest in, such entity to the Board in accordance with Article 117 and this has been approved by a majority of the disinterested Directors, notwithstanding the fact that the disinterested Directors may represent less than a quorum.

 

122.                         No person shall be disqualified from the office of Director or from being an officer of the Company or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by or on behalf of the Company in which any Director or officer of the Company shall be in any way interested be or be liable to be avoided, nor shall any Director or officer of the Company so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or transaction by reason of such Director or officer of the Company holding office or of the fiduciary relation thereby established; provided that:

 

122.1.               he or she has declared the nature of his or her interest in such contract or transaction to the Board in accordance with Article 117; and

 

122.2.               the contract or transaction is approved by a majority of the disinterested Directors, notwithstanding the fact that the disinterested Directors may represent less than a quorum.

 

123.                         A Director may be counted in determining the presence of a quorum at a meeting of the Board which authorises or approves the contract, transaction or arrangement in which he or she is interested and he or she shall be at liberty to vote in respect of any contract, transaction or arrangement in which he or she is interested, provided that the nature of the interest of any Director in any such contract or transaction shall be disclosed by him or her in accordance with Article 117, at or prior to its consideration and any vote thereon.

 

124.                         For the purposes of Article 117:

 

124.1.               a general notice given to the Directors that a Director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the Director has an interest in any such transaction of the nature and extent so specified;

 

124.2.               an interest of which a Director has no knowledge and of which it is unreasonable to expect him or her to have knowledge shall not be treated as an interest of his or hers; and

 

124.3.               a copy of every declaration made and notice given under Article 117 shall be entered within three (3) days after the making or giving thereof in a book kept for this purpose. Such book shall be open for inspection without charge by any Director, Secretary, the Auditors or Member of the Company at the registered office and shall be produced at every general meeting of the Company and at any meeting of the Directors if any Director so requests in sufficient time to enable the book to be available at the meeting.

 

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POWERS AND DUTIES OF DIRECTORS

 

125.                         The business of the Company shall be managed by the Directors, who may pay all expenses incurred in promoting and registering the Company and may exercise all such powers of the Company as are not, by the Companies Act or by these Articles, required to be exercised by the Company in general meeting, subject, nevertheless, to any of these Articles and to the provisions of the Companies Act. No resolution made by the Company in general meeting shall invalidate any prior act of the Directors that would have been valid if that resolution had not been made.

 

126.                         The Board shall have the power to appoint and remove officers and executives on such terms as the Board sees fit and to give such titles and delegate such responsibilities to those officers and executives as it sees fit.

 

127.                         The Company may exercise the powers conferred by section 44 of the Companies Act with regard to having an official seal for use abroad and such powers shall be vested in the Directors.

 

128.                         Unless otherwise ordered by the Board, the chief executive officer shall have the authority to exercise the voting powers conferred by shares of any other company held or owned by the Company in such manner in all respects as he or she thinks fit and in particular they may exercise their voting powers in favour of any resolution appointing the directors or any of them as director or officers of such other company or providing for the payment of remuneration or pensions to the directors or officers of such other company. The Board may from time to time confer like powers upon any other person or persons.

 

129.                         All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for money paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, by such person or persons and in such manner as the Directors shall from time to time by resolution determine.

 

130.                         The Directors may from time to time authorise such person or persons as they see fit to perform all acts, including, without prejudice to the foregoing, to effect a transfer of any shares, bonds, or other evidences of indebtedness or obligations, subscription rights, warrants, and other securities in another company in which the Company holds an interest and to issue the necessary powers of attorney for the same; and each such person is authorised on behalf of the Company to vote such securities, to appoint proxies with respect thereto, and to execute consents, waivers and releases with respect thereto, or to cause any such action to be taken.

 

131.                         The Board may exercise all powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds or such other securities whether outright or as security for any debt, liability or obligation of the Company or of any third party.

 

132.                         The Directors may procure the establishment and maintenance of or participate in, or contribute to, any non-contributory or contributory pension or superannuation fund, scheme or arrangement or life assurance scheme or arrangement for the benefit of, and pay, provide for or procure the grant of donations, gratuities, pensions, allowances, benefits or emoluments to any persons (including Directors or officers) who are or shall have been at any time in the employment or service of the Company or of any company which is or was a subsidiary or holding company of the Company or of any predecessor in business of the Company or any such subsidiary or holding company and the wives, husbands, widows, widowers, families, relatives or dependants of any such persons. The Directors may also procure the establishment and subsidy of or subscription to and support of any institutions, associations, clubs, funds or trusts calculated to be for the benefit of any such persons as aforesaid or otherwise to advance the interests and well-being of the Company or of any such other company as aforesaid or its Members, and payments for or towards the issuance of any such persons as aforesaid and subscriptions or guarantees of money for charitable or benevolent objects or for any exhibition or for any public, general or useful object; provided that any Director shall be entitled to retain any benefit

 

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received by him or her under this Article 132, subject only, where the Companies Act requires, to disclosure to the Members and the approval of the Company in general meeting.

 

133.                         The Board may from time to time provide for the management of the affairs of the Company in such manner as it shall think fit and the specific delegation provisions contained in the Articles shall not limit the general powers conferred by these Articles.

 

MINUTES

 

134.                         The Board shall cause minutes to be made in books kept for the purpose of all (i) appointments of officers and committees made by the Board (ii) resolutions and proceedings at meetings of (a) the Company or of the holders of any class of Shares and (b) the Board and of committees of the Board, including in each case the names of the Directors and others present at each meeting. Any such minutes, if signed by the Chairperson of the meeting at which the proceedings were held or by the Chairperson of the next succeeding meeting or the Secretary, shall be prima facie evidence of the matters stated in them.

 

DELEGATION OF THE BOARD’S POWERS

 

135.                         The Board may delegate any of its powers (with power to sub-delegate) to any committee consisting of one or more Directors and/or (if thought fit) one or more other persons.  The Board may also delegate to any Director, officer or member of the management of the Company or any of its subsidiaries such of its powers as it considers desirable to be exercised by him or her. The Board may also designate one or more persons as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee.  Any such delegation may be made subject to any conditions the Board may impose, and either collaterally with or to the exclusion of its own powers, and may be revoked or altered. Subject to any such conditions, the proceedings of a committee shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying.  Each committee shall keep regular minutes and report to the Board when required. Unless otherwise determined by the Board, the quorum necessary for the transaction of any business at any committee meeting shall be a majority of the members of such committee.  Where a provision of the Articles refers to the exercise of a power, authority or discretion by the Board and that power, authority or discretion has been delegated by the Board to a committee, the provision shall be construed as permitting the exercise of the power, authority or discretion by the committee.

 

136.                         The Board may, by power of attorney or otherwise, appoint any person to be the agent of the Company on such conditions as the Board may determine, provided that the delegation is not to the exclusion of its own powers and may be revoked by the Board at any time.

 

137.                         The Board may, by power of attorney or otherwise, appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Board, to be the attorney or authorised signatory of the Company for such purpose and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board under these Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney or other appointment may contain such provisions for the protection and convenience of persons dealing with any such attorneys or authorised signatories as the Board may think fit and may also authorise any such attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in him or her.

 

CHAIRPERSON AND EXECUTIVE OFFICERS

 

138.                         The Board may elect any Director as Chairperson of the Board and determine the period for which he or she is to hold office.

 

139.                         In addition to the Chairperson, the Directors and the Secretary, the Company may appoint such other officers, including executive officers, as the Board may from time to time determine and, without

 

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limitation to the foregoing, the Board may appoint any person (whether or not a Director) to fill the following positions: chief executive officer, chief financial officer, general counsel, president, treasurer and controller. Any person may hold more than one of the foregoing positions.

 

140.                         Any person elected or appointed pursuant to Articles 138 and 139 shall hold his or her office or other position for such period and on such terms as the Board may determine and the Board may revoke or vary any such election or appointment at any time by resolution of the Board. Any such revocation or variation shall be without prejudice to any claim for damages that such person may have against the Company or the Company may have against such person for any breach of any contract of service between him or her and the Company which may be involved in such revocation or variation. If any such office or other position becomes vacant for any reason, the vacancy may be filled by the Board.

 

141.                         Except as provided in the Companies Act or these Articles, the powers and duties of any person elected or appointed to any office or executive or official position pursuant to Articles 138 and 139 shall be such as are determined from time to time by the Board.

 

142.                         Any officer may resign at any time by giving written notice to the Company. The resignation is effective without acceptance when the notice is given to the Company, unless a later effective date is specified in the notice.

 

143.                         The use of the word “officer”, “director” (save where the relevant person is a Director for the purposes of these Articles) (or similar words) in the title of any executive or other position shall not be deemed to imply that the person holding such executive or other position is an “officer” or “director” of the Company within the meaning of the Companies Act.

 

PROCEEDINGS OF DIRECTORS

 

144.                         Except as otherwise provided by these Articles, the Directors shall meet together for the despatch of business, convening, adjourning and otherwise regulating their meetings and procedures as they think fit. Questions arising at any meeting shall be decided by a majority of votes of the Directors present at a meeting at which there is a quorum. Each Director shall have one vote.

 

145.                         Regular meetings of the Board may be held at such times and places as may be provided for in resolutions adopted by the Board. No additional notice of a regularly scheduled meeting of the Board shall be required.

 

146.                         A Director may, and the Secretary on the requisition of a Director shall, at any time summon a meeting of the Directors by at least 24 hours’ notice (or, if notice is mailed, at least four calendar days’ notice) in writing to every Director, unless notice is waived by all the Directors either at, before or after the meeting is held and, provided further, if notice is given in person, by telephone, cable, telex, telecopy or email, the same shall be deemed to have been given on the day it is delivered to the Directors or transmitting organisation, as the case may be. The accidental omission to give notice of a meeting of the Directors to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings of that meeting. The presence of a Director at a meeting of the Directors shall be deemed to be a waiver of any failure to give due notice of such meeting unless such Director states that he or she is not waiving any such failure promptly following the calling to order of such meeting. Notice of a Board meeting shall be deemed to be duly given to a Director if it is given to such Director personally or by word of mouth or sent in writing to his or her last known address or any other address given to the Company by such Director for such purpose or given by electronic communications to an address for the time being notified to the Company by the Director. In this Article “address,” in relation to documents in electronic form, includes any number or address used for the supply of documents in electronic form.

 

147.                         The quorum necessary for the transaction of the business of the Board shall be a majority of the Directors in office. If a quorum shall not be present at any meeting of the Board, the Directors present

 

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thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

 

148.                         The continuing Directors may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to these Articles as the minimum number of Directors, the continuing Directors or Director may act for the purpose of increasing the number of Directors to that number, or of summoning a general meeting of the Company, but for no other purpose. If there are no Director or Directors able or willing to act, any two Members may summon a general meeting for the purpose of appointing Directors. Any Director so appointed shall hold office (subject to these Articles) only until the dissolution of the annual general meeting next following such appointment unless such Director is re-elected during such meeting.

 

149.                         If no Chairperson is elected, or if at any meeting the Chairperson is not present within five (5) minutes after the time appointed for holding the same, the Directors present may choose one of their number to be the Chairperson of the meeting or proceed without a Chairperson of the meeting.

 

150.                         All acts done by any meeting of the Directors or of a committee of Directors shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any Director, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and qualified to be a Director.

 

151.                         Members of the Board or of any committee thereof may participate in a meeting of the Board or of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and participation in a meeting pursuant to this provision shall constitute presence in person at such meeting. Unless otherwise determined by the Directors, the meeting shall be deemed to be held at the place where the telephone call or similar communication was initiated.

 

152.                         A resolution or other document in writing (in electronic form or otherwise), signed (whether by electronic signature, advanced electronic signature or otherwise as approved by the Directors) by all the Directors entitled to receive notice of a meeting of Directors or of a committee of Directors, and to vote on the relevant resolution or matter, shall be as valid and effectual as if it had been passed at a meeting of Directors or (as the case may be) a committee of Directors duly convened and held and may consist of several documents in the like form each signed by one or more Directors, and such resolution or other document or documents when duly signed may be delivered or transmitted (unless the Directors shall otherwise determine either generally or in any specific case) by facsimile transmission, electronic mail or some other similar means of transmitting the content of documents.

 

RESIGNATION AND DISQUALIFICATION OF DIRECTORS

 

153.                         The office of a Director shall be vacated ipso facto:

 

153.1.               on the death of a Director;

 

153.2.               if he or she resigns his or her office, on the date on which notice of his or her resignation is delivered to the registered office or tendered at a meeting of the Board or on such later date as may be specified in such notice;

 

153.3.               if he or she ceases to be a Director by virtue of any provision of the Companies Act, is removed from office pursuant to these Articles or the Companies Act or becomes prohibited by law from being a Director;

 

153.4.               if he or she becomes bankrupt, has an interim receiving order made against him or her, makes any arrangement or compounds with his or her creditors generally or applies to the court for an interim order in connection with a voluntary arrangement under any legislation relating to insolvency;

 

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153.5.               if the health of the director is such that, in the opinion of a majority of the other Directors, he or she can no longer be reasonably regarded as possessing adequate decision making capacity;

 

153.6.               in the case of a Director who holds executive office, his or her appointment to such office is terminated or expires and the Board resolves that such Director’s office be vacated;

 

153.7.               if he or she is absent, without permission of the Board, from Board meetings for six consecutive months and the Board resolves that his or her office be vacated; or

 

153.8.               if the Director is requested to resign in writing by not less than a majority of the other Directors.

 

154.                         A resolution of the Board declaring a Director to have vacated office pursuant to this Article shall be conclusive as to the fact and grounds of vacation stated in the resolution.

 

APPOINTMENT, ROTATION, REMOVAL AND NOMINATION OF DIRECTORS

 

155.

 

155.1.               No person shall be appointed a Director unless nominated in accordance with the provisions of this Article 155. Nominations of persons for election to the Board at a general meeting may be made:

 

(a)                                  by or at the direction of the Board or a committee thereof;

 

(b)                                  with respect to election at a general meeting, by any Member who holds Shares carrying the general right to vote at general meetings of the Company, who is a Member at the time of the giving of the required notice of the relevant general meeting provided for in these Articles and at the time of the relevant general meeting, and who has given timely and proper notice in writing to the Secretary in accordance with Article 155.2 and 155.3;

 

(c)                                   with respect to election at an extraordinary general meeting requisitioned in accordance with section 178(3) of the Companies Act, by a Member or Members who hold Shares carrying the general right to vote at general meetings of the Company and who make such nomination in the written requisition of the extraordinary general meeting in accordance with these Articles, including Article 155.3, and the provisions of the Companies Act relating to nominations of Directors and the proper bringing of special business before an extraordinary general meeting,

 

(sub-clauses (b) and (c) being the exclusive means for a Member to make nominations of persons for election to the Board).

 

155.2.               For nominations of persons for election as Directors at a general meeting to be timely, a Member’s notice must comply with the requirements of Article 90.2 or 90.3 (as applicable).

 

155.3.               To be in proper written form, a Member’s notice for nomination(s) of person(s) for election pursuant to Article 155.1(b), or in the case of nomination(s) of person(s) for election pursuant to Article 155.1(c), a Member’s written requisition of the extraordinary general meeting, must, in addition to any other applicable requirements, set forth:

 

(a)                                  as to each person whom the Member proposes to nominate for election or re-election as a Director, all information relating to such person that is required to be disclosed in solicitations for proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A of the Exchange Act (including such person’s written

 

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consent to being named in the proxy statement as a nominee and to serving as a director if elected); and

 

(b)                                  as to the Member giving the notice and each beneficial owner, if different, on whose behalf the nomination is made:

 

(i)                           the name and address of such Member (as they appear on the Company’s Register of Members) and each such beneficial owner; and

 

(ii)                        the class and number of Shares in the Company which each such Member and each such beneficial owner is the registered or beneficial owner of.

 

155.4.               The Chairperson of the meeting shall determine whether a nomination was made in accordance with the procedures prescribed by these Articles, and if he or she should determine that such nomination was not made in accordance with such procedures, he or she shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded. Any such ruling by the Chairperson of the meeting shall be final and conclusive.

 

155.5.               The Company may require any proposed nominee to furnish such other information as it may reasonably require, including the completion of any questionnaires, to determine the eligibility of such proposed nominee to serve as a Director of the Company and the impact that such service would have on the ability of the Company to satisfy the requirements of laws, rules, regulations and listing standards applicable to the Company or its Directors.

 

156.                         At every annual general meeting of the Company, all of the Directors shall retire from office unless re-elected in accordance with Article 157. A Director retiring at a meeting shall retain office until the close of that meeting (including any adjournment thereof). Each Director shall be eligible to stand for re-election at an annual general meeting.

 

157.                         Directors will be elected by way of Ordinary Resolution of the Company in general meeting, provided that if the number of Director nominees exceeds the number of Directors (as determined by the Board) to be elected at such meeting (a “contested election”), each of those nominees shall be voted upon as a separate resolution and the Directors shall be elected by a plurality of the votes of the Shares present in person or represented by proxy at any such meeting and entitled to vote on the election of Directors. For the purposes of this Article 157, “elected by a plurality” means the election of those Director nominees, equal in number to the number of positions to be filled at the relevant general meeting (as determined by the Board), that received the highest number of votes in the contested election. Cumulative voting is prohibited in the election of Directors.

 

158.                         Notwithstanding any other provision of these Articles, the directors may appoint a person who is willing to act to be a Director, either to fill a casual vacancy or as an additional Director, provided that the appointment does not cause the number of Directors to exceed the number fixed by or in accordance with these Articles as the maximum number of Directors. A casual vacancy will include, without limitation, a vacancy that results from the death, resignation, retirement, disqualification or removal of a Director.

 

159.                         The Company may, by Ordinary Resolution, of which notice has been given in accordance with section 146 of the Companies Act, remove any Director before the expiration of his or her period of office notwithstanding anything in these Articles or in any agreement between the Company and such Director. Such removal shall be without prejudice to any claim such Director may have for damages for breach of any contract of service between him or her and the Company.

 

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SECRETARY

 

160.                         The Board shall appoint the Secretary and may appoint one or more persons to be a joint, deputy or Assistant Secretary at such remuneration (if any) and on such terms as the Board sees fit and any person so appointed may be removed by the Board at any time.

 

161.                         The duties of the Secretary shall be those prescribed by the Companies Act, together with such other duties as shall from time to time be prescribed by the Board, and in any case, shall include the making and keeping of records of the votes, doings and proceedings of all meetings of the Members and the Board of the Company, and committees, and the authentication of records of the Company.

 

162.                         A provision of the Companies Act or these Articles requiring or authorising a thing to be done by or to a Director and the Secretary shall not be satisfied by its being done by or to the same person acting both as Director and as, or in the place of, the Secretary.

 

SEAL

 

163.                         Company may, if the Board so determines, have a Seal (including any official seals kept pursuant to the Companies Act) which shall only be used by the authority of the Board or of a committee of the Board authorised by the Board in that regard and every instrument to which the Seal has been affixed shall be signed by any person who shall be either a Director or the Secretary or some other person authorised by the Board, either generally or specifically, for the purpose.

 

164.                         The Company may have for use in any place or places outside Ireland a duplicate Seal or Seals, each of which shall be a duplicate of the Seal of the Company, except, in the case of a seal for use in sealing documents creating or evidencing securities issued by the Company, for the addition on its face of the word “Securities” and, if the Board so determines, with the addition on its face of the name of every place where it is to be used.

 

DIVIDENDS, DISTRIBUTIONS AND RESERVES

 

165.                         The Company in general meeting may by Ordinary Resolution declare dividends, but no dividends shall exceed the amount recommended by the Board.  Subject to the Companies Act, the Board may, from time to time, pay such interim dividends as appear to it to be justified by the profits of the Company available for distribution. The Board may direct that any dividend declared by the Company in general meeting or by the Board in accordance with these Articles may be paid wholly or partly by the distribution of specific assets and in particular of paid up shares, debentures or debenture stocks of any other company or in any one or more of such ways.  Where any difficulty arises in regard to such distribution, the Board may settle the same as they think expedient, and in particular may issue fractional certificates or ignore fractions, fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the footing of the value so fixed, in order to adjust the rights of all the parties, and may vest any such specific assets in trustees as may seem expedient to the Board.

 

166.                         Subject to the Companies Act, the Board may from time to time declare dividends (including interim dividends) and distributions on Shares outstanding and authorise payment of the same out of the funds of the Company lawfully available therefore and in any currency chosen at its discretion.

 

167.                         The Board may, before recommending or declaring any dividends or distributions, set aside such sums as it thinks proper as a reserve or reserves which shall, as directed by the Board, be applicable for any purpose of the Company and pending such application may, as directed by the Board, be employed in the business of the Company or be invested in such investments as the Directors may lawfully determine. The Directors may also, without placing the same to reserve, carry forward any profits which they may think it prudent not to dividend or distribute.

 

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168.                         No dividend, interim dividend or distribution shall be paid otherwise than in accordance with the provisions of section 117 of the Companies Act.

 

169.                         Subject to the rights of persons, if any, entitled to Shares with special rights as to dividends or distributions, if dividends or distributions are to be declared on a class of Shares, they shall be declared and paid according to the amounts paid or credited as paid on the Shares of such class outstanding on the record date for such dividend or distribution as determined in accordance with these Articles.

 

170.                         The Directors may deduct from any dividend payable to any Member all sums of money (if any) immediately payable by him or her to the Company in relation to his or her Shares.

 

171.                         Any dividend, distribution, interest or other monies payable in cash in respect of Shares may be paid by cheque or warrant sent through the post, or sent by any electronic or other means of payment, directed to the registered address of the holder or, in the case of joint holders, to the holder who is first named on the Register of Members or to such person and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant, electronic or other payment shall be made payable to the order of the person to whom it is sent and payment of the cheque or warrant shall be a good discharge to the Company. Any one of two or more joint holders may give effectual receipts for any dividends, bonuses, or other monies payable in respect of the Share held by them as joint holders. Any such dividend or other distribution may also be paid by any other method (including payment in a currency other than US$, electronic funds transfer, direct debit, bank transfer or by means of a relevant system) which the Directors consider appropriate and any Member who elects for such method of payment shall be deemed to have accepted all of the risks inherent therein. The debiting of the Company’s account in respect of the relevant amount shall be evidence of good discharge of the Company’s obligations in respect of any payment made by any such methods.

 

172.                         No dividend or distribution shall bear interest against the Company.

 

173.                         All unclaimed dividends or other monies payable by the Company in respect of a Share may be invested or otherwise made use of by the Board for the benefit of the Company until claimed. If the Directors so resolve, subject to applicable law, any dividend which has remained unclaimed for twelve (12) years from the date of its declaration shall be forfeited and cease to remain owing by the Company. The payment by the Directors of any unclaimed dividend or other monies payable in respect of a Share into a separate account shall not constitute the Company a trustee in respect thereof.

 

174.                         If, in respect of a dividend or other amount payable in respect of a Share (i) a cheque, warrant or money order is returned undelivered or left uncashed or (ii) a transfer made by or through a bank transfer system and/or other funds transfer system(s) fails or is not accepted, on two consecutive occasions, or one occasion and reasonable enquiries have failed to establish another address or account of the person entitled to the payment, the Company shall not be obliged to send or transfer a dividend or other amount payable in respect of such Share to such person until he or she notifies the Company of an address or account to be used for such purpose.

 

CAPITALISATION

 

175.                         Without prejudice to any powers conferred on the Directors as aforesaid, and subject to the Board’s authority to issue and allot Shares under Article 7, the Board may:

 

175.1.               resolve to capitalise an amount standing to the credit of reserves (including, without limitation, a share premium account, undenominated capital account, capital redemption reserve and profit and loss account), whether or not available for distribution;

 

175.2.               appropriate the sum resolved to be capitalised to the Members in proportion to the nominal amount of Shares held by them respectively and apply that sum on their behalf in or towards paying up in full unissued Shares or debentures of a nominal amount equal to that sum, and allot the Shares or debentures, credited as fully paid, to the Members (or as the Board may

 

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direct) in those proportions, or partly in one way and partly in the other, but the share premium account, undenominated capital account, capital redemption reserve and profits that are not available for distribution may, for the purposes of this Article 175, only be applied in paying up unissued Shares to be allotted to Members credited as fully paid;

 

175.3.               make any arrangements it thinks fit to resolve a difficulty arising in the distribution of a capitalised reserve, including that where Shares or debentures become distributable in fractions, the Board may deal with the fractions as it thinks fit;

 

175.4.               authorise a person to enter (on behalf of all the Members concerned) into an agreement with the Company providing for the allotment to the Members respectively, credited as fully paid, of Shares or debentures to which they may be entitled on the capitalisation and any such agreement made under this authority being effective and binding on all those Members; and

 

175.5.               generally do all acts and things required to give effect to the resolution of the Board.

 

176.                         Any such capitalisation will not require approval or ratification by the Members of the Company.

 

ACCOUNTS

 

177.                         The Board shall, in accordance with Chapter 2 of Part 6 of the Companies Act, cause to be kept adequate accounting records, whether in the form of documents, electronic form or otherwise, that:

 

177.1.               correctly record and explain the transactions of the Company;

 

177.2.               will at any time enable the financial position of the Company to be determined with reasonable accuracy;

 

177.3.               will enable the Board to ensure that any financial statements of the Company comply with the requirements of the Companies Act;

 

177.4.               will record all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company; and

 

177.5.               will enable the financial statements of the Company to be readily and properly audited.

 

178.                         Accounting records shall be kept on a continuous and consistent basis and entries therein shall be made in a timely manner and be consistent from year to year. The Company may send by post, electronic mail or any other means of electronic communication a summary financial statement to its Members or persons nominated by any Member. The Company may meet, but shall be under no obligation to meet, any request from any of its Members to be sent additional copies of its full report and accounts or summary financial statement or other communications with its Members.

 

179.                         The accounting records shall be kept at the registered office of the Company or, subject to the provisions of the Companies Act, at such other place as the Directors think fit and shall be open at all reasonable times to the inspection of the Directors.

 

180.                         Accounting records shall not be deemed to be kept as required by Articles 177 to 179 if there are not kept such accounting records as are necessary to give a true and fair view of the state of the Company’s affairs and to explain its transactions.

 

181.                         In accordance with the provisions of the Companies Act, the Board may from time to time cause to be prepared and to be laid before the Company in general meeting profit and loss accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by law.

 

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182.                         A copy of every balance sheet (including every document required by law to be annexed thereto) which is to be laid before the annual general meeting of the Company together with a copy of the Directors’ report and Auditors’ report shall be sent by post, electronic mail or any other means of communication (electronic or otherwise), not less than twenty-one (21) clear days before the date of the annual general meeting, to every person entitled under the provisions of the Companies Act to receive them; provided that in the case of those documents sent by electronic mail or any other means of electronic communication, such documents shall be sent with the consent of the recipient, to the address of the recipient notified to the Company by the recipient for such purposes.

 

AUDIT

 

183.                         Auditors shall be appointed and their duties regulated in accordance with Part 6, Chapter 18 of the Companies Act or any statutory amendment thereof, any other applicable law and such requirements not inconsistent with the Companies Act as the Board may from time to time determine.

 

NOTICES

 

184.                         Any notice to be given, served, sent or delivered pursuant to these Articles shall be in writing (whether in electronic form or otherwise).

 

184.1.               A notice or document to be given, served, sent or delivered in pursuance of these Articles, and the annual report of the Company, may be given to, served on or delivered to any Director, Member or committee member by the Company:

 

(a)                                  by handing same to their authorised agent;

 

(b)                                  by delivering same to their registered address;

 

(c)                                   by sending same by the post in a pre-paid cover addressed to their registered address; or

 

(d)                                  by sending, with the consent of the Director, Member or committee member to the extent required by law, same by means of electronic mail or other means of electronic communication approved by the Directors or the Secretary (or such other person as may be nominated by the Secretary for this purpose), to the address of the Director, Member or committee member notified to the Company by the Director, Member or committee member for such purpose (or if not so notified, then to the address of the Director, Member or committee member last known to the Company). A notice or document may be sent by electronic means to the fullest extent permitted by the Companies Act.

 

184.2.               For the purposes of these Articles and the Companies Act, a document, including the Company’s financial statements and the directors’ and auditor’s reports thereon, shall be deemed to have been sent to a Director, Member or committee member if a notice is given, served, sent or delivered to the Director, Member or committee member and the notice specifies the website or hotlink or other electronic link at or through which the Director, Member or committee member may obtain a copy of the relevant document.

 

184.3.               Where a notice or document is given, served or delivered pursuant to sub-paragraph 184.1(a) or 184.1(b) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the time the same was handed to the Director, Member or committee member or his or her authorised agent, or left at his or her registered address (as the case may be).

 

184.4.               Where a notice or document is given, served or delivered pursuant to sub-paragraph 184.1(c) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of twenty-four (24) hours after the cover containing it was posted. In proving service

 

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or delivery it shall be sufficient to prove that such cover was properly addressed, stamped and posted.

 

184.5.               Where a notice or document is given, served or delivered pursuant to sub-paragraph 184.1(d) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of forty-eight (48) hours after despatch.

 

184.6.               Every legal personal representative, committee, receiver, curator bonis or other legal curator, assignee in bankruptcy, examiner or liquidator of a Member shall be bound by a notice given as aforesaid if sent to the last registered address of such Member, or, in the event of notice given or delivered pursuant to sub-paragraph 184.1 (d), if sent to the address notified to the Company by the Member for such purpose notwithstanding that the Company may have notice of the death, lunacy, bankruptcy, liquidation or disability of such Member.

 

184.7.               Notwithstanding anything contained in this Article to the contrary, the Company shall not be obliged to take account of or make any investigations as to the existence of any suspension or curtailment of postal services within or in relation to all or any part of any jurisdiction.

 

184.8.               Any requirement in these Articles for the consent of a Member in regard to the receipt by such Member of electronic mail or other means of electronic communications approved by the Directors, including the receipt of the Company’s annual report, statutory financial statements and the Directors’ and auditor’s reports thereon, shall be deemed to have been satisfied where the Company has written to the Member informing him or her of its intention to use electronic communications for such purposes and the Member has not, within four (4) weeks of the issue of such notice, served an objection in writing on the Company to such proposal. Where a Member has given, or is deemed to have given, his/her consent to the receipt by such Member of electronic mail or other means of electronic communications approved by the Directors, she/he may revoke such consent at any time by requesting the Company to communicate with him or her in documented form; provided, however, that such revocation shall not take effect until five (5) days after written notice of the revocation is received by the Company. No such consent shall be necessary, and to the extent it is necessary, such consent shall be deemed to have been given, if electronic communications are permitted to be used under the rules and regulations of the United States Securities and Exchange Commission or any Exchange on which the Shares or other securities of the Company are listed.

 

184.9.               Without prejudice to the provisions of sub-paragraphs 184.1 (a) and 184.1(b) of this Article, if at any time by reason of the suspension or curtailment of postal services in any territory, the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a public announcement (as defined below) and such notice shall be deemed to have been duly served on all Members entitled thereto at noon (New York time) on the day on which the said public announcement is made. In any such case the Company shall put a full copy of the notice of the general meeting on its website. A “public announcement” shall mean disclosure in a press release reported by a financial news service or in a document publicly filed by the Company with the United States Securities and Exchange Commission pursuant to sections 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

 

185.                         Notice may be given by the Company to the joint holders of a Share by giving the notice to the joint holder whose name stands first in the Register in respect of the Share and notice so given shall be sufficient notice to all the joint holders.

 

186.

 

186.1.               Every person who becomes entitled to a Share shall, before his or her name is entered in the Register in respect of the Share, be bound by any notice in respect of that Share which has been duly given to a person from whom he or she derives his or her title.

 

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186.2.               A notice may be given by the Company to the persons entitled to a Share in consequence of the death or bankruptcy of a Member by sending or delivering it, in any manner authorised by these Articles for the giving of notice to a Member, addressed to them at the address, if any, supplied by them for that purpose. Until such an address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy had not occurred.

 

187.                         The signature (whether electronic signature, an advanced electronic signature or otherwise) to any notice to be given by the Company may be written (in electronic form or otherwise) or printed.

 

188.                         A Member present, either in person or by proxy, at any meeting of the Company or the holders of any class of Shares in the Company shall be deemed to have received notice of the meeting and, where requisite, of the purposes for which it was called.

 

UNTRACED HOLDERS

 

189.

 

189.1.               Subject to applicable law, the Company shall be entitled to sell, at the best price reasonably obtainable, any Share or stock of a Member or any Share or stock to which a person is entitled by transmission if and provided that:

 

(a)                                  for a period of twelve (12) years (not less than three (3) dividends having been declared and paid) no cheque or warrant sent by the Company through the post in a prepaid letter addressed to the Member or to the person entitled by transmission to the Share or stock at his or her address on the Register or other than the last known address given by the Member or the person entitled by transmission to which cheques and warrants are to be sent has been cashed and no communication has been received by the Company from the Member or the person entitled by transmission; and

 

(b)                                  at the expiration of the said period of twelve (12) years, the Company has given notice by advertisement in a leading newspaper circulating in the area in which the address referred to in paragraph (a) of this Article is located of its intention to sell such Share or stock; and

 

(c)                                   the Company has not during the further period of three (3) months after the date of the advertisement and prior to the exercise of the power of sale received any communication from the Member or person entitled by transmission.

 

189.2.               To give effect to any such sale, the Company may appoint any person to execute as transferor an instrument of transfer of such Share or stock and such instrument of transfer shall be as effective as if it had been executed by the Member or person entitled by transmission to such Share or stock. The Company shall account to the Member or other person entitled to such Share or stock for the net proceeds of such sale by carrying all monies in respect thereof to a separate account which shall be a permanent debt of the Company and the Company shall be deemed to be a debtor and not a trustee in respect thereof for such Member or other person. Monies carried to such separate account may either be employed in the business of the Company or invested in such investments (other than shares of the Company or its holding company if any) as the Directors may from time to time think fit.

 

189.3.               To the extent necessary in order to comply with any laws or regulations to which the Company is subject in relation to escheatment, abandonment of property or other similar or analogous laws or regulations (“ Applicable Escheatment Laws ”), the Company may deal with any Share of any Member and any unclaimed cash payments relating to such Share in any manner which it sees fit, including transferring or selling such Share and transferring to third parties any unclaimed cash payments relating to such Share.

 

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189.4.               The Company may only exercise the powers granted to it in paragraph 189.1 above in circumstances where it has complied with, or procured compliance with, the required procedures (as set out in the Applicable Escheatment Laws) with respect to attempting to identify and locate the relevant member of the Company.

 

189.5.               Any stock transfer form to be executed by the Company in order to sell or transfer a Share pursuant to article 189.1 may be executed in accordance with Article 28.1.

 

DESTRUCTION OF DOCUMENTS

 

190.                         Subject to applicable law, the Company may destroy:

 

190.1.               any dividend mandate or any variation or cancellation thereof or any notification of change of name or address, at any time after the expiry of two (2) years from the date such mandate variation, cancellation or notification was recorded by the Company;

 

190.2.               any instrument of transfer of Shares which has been registered, at any time after the expiry of six (6) years from the date of registration; and

 

190.3.               any other document on the basis of which any entry in the Register was made, at any time after the expiry of six (6) years from the date an entry in the Register was first made in respect of it;

 

and it shall be presumed conclusively in favour of the Company that every share certificate (if any) so destroyed was a valid certificate duly and properly sealed and that every instrument of transfer so destroyed was a valid and effective instrument duly and properly registered and that every other document destroyed hereunder was a valid and effective document in accordance with the recorded particulars thereof in the books or records of the Company provided always that:

 

(a)                                  the foregoing provisions of this Article shall apply only to the destruction of a document in good faith and without express notice to the Company (by a Member or a court) that the preservation of such document was relevant to a claim;

 

(b)                                  nothing contained in this Article shall be construed as imposing upon the Company any liability in respect of the destruction of any such document earlier than as aforesaid or in any case where the conditions of proviso (a) above are not fulfilled; and

 

(c)                                   references in this Article to the destruction of any document include references to its disposal in any manner.

 

WINDING UP

 

191.                         If the Company shall be wound up and the assets available for distribution among the Members as such shall be insufficient to repay the whole of the paid up or credited as paid up share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the capital paid up or credited as paid up at the commencement of the winding up on the Shares held by them respectively. If in a winding up the assets available for distribution among the Members shall be more than sufficient to repay the whole of the share capital paid up or credited as paid up at the commencement of the winding up, the excess shall be distributed among the Members in proportion to the capital at the commencement of the winding up paid up or credited as paid up on the said Shares held by them respectively. Notwithstanding the foregoing, this Article shall not affect the rights of the Members holding Shares issued upon special terms and conditions.

 

191.1.               In case of a sale by the liquidator under section 601 of the Companies Act, the liquidator may by the contract of sale agree so as to bind all the Members, for the allotment to the Members directly, of the proceeds of sale in proportion to their respective interests in the Company and

 

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may further, by the contract, limit a time at the expiration of which obligations or Shares not accepted or required to be sold shall be deemed to have been irrevocably refused and be at the disposal of the Company, but so that nothing herein contained shall be taken to diminish, prejudice or affect the rights of dissenting Members conferred by the said section.

 

191.2.               The power of sale of the liquidator shall include a power to sell wholly or partially for debentures, debenture stock, or other obligations of another company, either then already constituted or about to be constituted for the purpose of carrying out the sale.

 

192.                         If the Company is wound up, the liquidator, with the sanction of a Special Resolution and any other sanction required by the Companies Act, may divide amongst the Members in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not), and, for such purpose, may value any assets and determine how the division shall be carried out as between the Members or different classes of Members. The liquidator, with the like sanction, may vest the whole or any part of such assets in trustees upon such trusts for the benefit of the contributories as, with the like sanction, he or she determines, but so that no Member shall be compelled to accept any assets upon which there is a liability.

 

INDEMNITY

 

193.

 

193.1.               Subject to the provisions of, and so far as may be permitted by, the Companies Act, every Director and Secretary shall be entitled to be indemnified by the Company against all costs, charges, losses, expenses and liabilities incurred by him or her in the execution and discharge of his or her duties or in relation thereto, or in his or her capacity as an officer, including any liability incurred by him in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him as a director, an officer or employee of the Company and in which judgement is given in his or her favour (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his or her part) or in which he or she is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him by the Court.

 

193.2.               As far as permissible under the Companies Act, the Company shall indemnify any current or former Official (excluding any Director or Secretary in respect only of their role as Director or Secretary of the Company) against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the Enterprise in respect of which the Official serves or has served as an Official, to which he or she was, is, or is threatened to be, made a party by reason of the fact that he or she is or was such an Official, provided always that the indemnity contained in this Article 193.2 shall not extend to any matter which would render it void pursuant to the Companies Act.

 

193.3.               In the case of any threatened, pending or completed action, suit or proceeding by or in the right of an Enterprise in respect of which a current or former Official serves or has served, the Company shall indemnify, to the fullest extent permitted by the Companies Act, each person indicated in Article 193.2 against expenses, including attorneys’ fees actually and reasonably incurred in connection with the defence or the settlement thereof, except no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for fraud or dishonesty in the performance of his or her duty to the relevant Enterprise unless and only to the extent that the Court or the court in which such action or suit was brought shall determine upon application that despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the Court shall deem proper.

 

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193.4.               As far as permissible under the Companies Act, expenses, including attorneys’ fees, incurred in defending any action, suit or proceeding referred to in this Article shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of a written affirmation by or on behalf of the Director, Secretary, Official or other indemnitee of a good faith belief that the criteria for indemnification have been satisfied and a written undertaking to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Company as authorised by these Articles.

 

193.5.               It being the policy of the Company that indemnification of the persons specified in this Article shall be made to the fullest extent permitted by law, the indemnification provided by this Article shall not be deemed exclusive (a) of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Memorandum, Articles, any agreement, any insurance purchased by the Company, any vote of Members or disinterested Directors, or pursuant to the direction (however embodied) of any court of competent jurisdiction, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, (b) of the power of any Enterprise to indemnify any Official, to the same extent and in the same situations and subject to the same determinations as are hereinabove set forth with respect to a Director, Secretary or Official or (c) of any amendments or replacements of the Companies Act which permit for greater indemnification of the persons specified in this Article and any such amendment or replacement of the Companies Act shall hereby be incorporated into these Articles. As used in this Article 193.5, references to the “Company” include all constituent companies in a consolidation or merger in which the Company or any predecessor to the Company by consolidation or merger was involved. The indemnification provided by this Article shall continue as to a person who has ceased to be a Director, executive, officer or trustee and shall inure to the benefit of the heirs, executors, and administrators of such a person.

 

193.6.               The Directors shall have power to purchase and maintain for any Director, the Secretary or other officers or employees of the Company insurance against any such liability as referred to in section 235 of the Companies Act and such insurance in respect of Officials as the Directors deem to be appropriate.

 

193.7.               The Company may additionally indemnify any employee or agent of the Company or any director, executive, officer, employee or agent of any of its subsidiaries to the fullest extent permitted by law.

 

FINANCIAL YEAR

 

194.                         The financial year of the Company shall be as prescribed by the Board from time to time.

 

SHAREHOLDER RIGHTS PLAN

 

195.                         The Board is hereby expressly authorised to adopt any shareholder rights plan, or similar plan, agreement or arrangement pursuant to which, under circumstances provided therein, some or all Members will have rights to acquire Shares or interests in Shares, upon such terms and conditions as the Board deems expedient and in the best interests of the Company.

 

BUSINESS COMBINATION

 

196.

 

196.1.               The Company may not engage in any business combination, or vote, consent, or otherwise act to authorise a subsidiary of the Company to engage in any business combination, with, with respect to, proposed by or on behalf of, or pursuant to any written or oral agreement, arrangement, relationship, understanding, or otherwise with, any interested Member of the

 

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Company or any affiliate or associate of the interested Member for a period of three (3) years following the date that the Member became an interested Member unless:

 

(a)                                  prior to the date that the Member became an interested Member, the business combination was approved by a committee of the Board formed in accordance with Article 196.3; or

 

(b)                                  at or following the date that the Member became an interested Member, the business combination is approved by a committee of the Board formed in accordance with Article 196.3 and is authorized by a Special Resolution of the Members. In determining whether the Special Resolution has been adopted by the general meeting, votes cast with respect to Shares of interested Members and their affiliates and associates shall not be taken into account.

 

196.2.               If a good faith definitive proposal regarding a business combination is made in writing to the Board, a committee of the Board formed in accordance with Article 196.3 shall consider and take action on the proposal and respond in writing within thirty (30) days after receipt of the proposal by the Company, setting forth its decision regarding the proposal.

 

196.3.               When a business combination is proposed pursuant to this Article 196, the Board shall promptly form a committee composed solely of one or more disinterested Directors. The committee shall take action on the proposal by the affirmative vote of a majority of committee members. No larger proportion or number of votes shall be required. Notwithstanding anything in these Articles to the contrary, subject to applicable law, the committee shall not be subject to any direction or control by the Board with respect to the committee’s consideration of, or any action concerning, a business combination pursuant to this Article 196. If the Board has no disinterested Directors, the Board shall select three or more disinterested persons to be committee members. Committee members shall act in accordance with the standard of conduct applicable to the Directors and shall be indemnified in accordance with Article 193. For purposes of this Article 196.3, a Director or person is “disinterested” if the Director or person is neither an officer nor an employee, nor has been an officer or employee within five (5) years preceding the formation of the committee pursuant to this Article 196.3, of the Company or of a related company.

 

196.4.               This Article 196 may only be amended by Special Resolution.  In determining whether the relevant resolution has been approved by the requisite majority, votes cast with respect to Shares of interested Members and their affiliates and associates shall not be taken into account. Notwithstanding any such amendment, unless determined otherwise by the Board, this Article 196 (as its stands prior to any such amendment) shall apply to any business combination of the Company with an interested Member who became an interested Member before the effective date of the amendment of this Article 196.

 

196.5.               As used in this Article 196 only, the term:

 

(i)              “affiliate” means a person that directly or indirectly controls, is controlled by, or is under common control with, a specified person;

 

(ii)           “associate”, when used to indicate a relationship with any person, means any of the following:

 

(a)          any company of which the person is an officer or partner or is, directly or indirectly, the beneficial owner of fifteen percent (15%) or more of any class or series of shares entitled to vote or other equity interest;

 

(b)          any trust or estate in which the person has a substantial beneficial interest or as to which the person serves as trustee or executor or in a similar fiduciary capacity; or

 

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(c)           any relative or spouse of the person, or any relative of the spouse, residing in the home of the person;

 

(iii)        “beneficial owner”, when used with respect to shares or other securities, includes, but is not limited to, any person who, directly or indirectly through any written or oral agreement, arrangement, relationship, understanding, or otherwise, has or shares the power to vote, or direct the voting of, the shares or securities or has or shares the power to dispose of, or direct the disposition of, the shares or securities, except that:

 

(a)          a person shall not be deemed the beneficial owner of shares or securities tendered pursuant to a tender or exchange offer made by the person or any of the person’s affiliates or associates until the tendered shares or securities are accepted for purchase or exchange; and

 

(b)          a person shall not be deemed the beneficial owner of shares or securities with respect to which the person has the power to vote or direct the voting arising solely from a revocable proxy given in response to a proxy solicitation required to be made and made in accordance with the applicable rules and regulations under the Exchange Act and is not then reportable under that act on a Schedule 13D or comparable report, or, if the company is not subject to the rules and regulations under the Exchange Act, would have been required to be made and would not have been reportable if the company had been subject to the rules and regulations;

 

(iv)       “beneficial ownership” includes, but is not limited to, the right to acquire shares or securities through the exercise of options, warrants, or rights, or the conversion of convertible securities, or otherwise. The shares or securities subject to the options, warrants, rights, or conversion privileges held by a person shall be deemed to be outstanding for the purpose of computing the percentage of outstanding shares or securities of the class or series owned by the person, but shall not be deemed to be outstanding for the purpose of computing the percentage of the class or series owned by any other person. A person shall be deemed the beneficial owner of shares and securities beneficially owned by any relative or spouse of the person or any relative of the spouse, residing in the home of the person, any trust or estate in which the person owns fifteen percent (15%) or more of the total beneficial interest or serves as trustee or executor or in a similar fiduciary capacity, any company in which the person owns fifteen percent (15%) or more of the equity, and any affiliate of the person.

 

When two or more persons act or agree to act as a partnership, limited partnership, syndicate, or other group for the purposes of acquiring, owning, or voting shares or other securities of a company, all members of the partnership, syndicate, or other group are deemed to constitute a “person” and to have acquired beneficial ownership, as of the date they first so act or agree to act together, of all shares or securities of the company beneficially owned by the person;

 

(v)          “business combination” means any of the following:

 

(a)          any merger, acquisition, scheme of arrangement or amalgamation of the Company or any subsidiary of the Company with (1) the interested Member or (2) any other company (whether or not itself an interested Member of the Company) that is, or after the merger would be, an affiliate or associate of the interested Member, but excluding (x) the merger of a wholly owned subsidiary of the Company into the Company, (y) the merger of two or more wholly owned subsidiaries of the Company, or (z) the merger of a company, other than an interested Member or an affiliate or associate of an interested Member, with a wholly owned subsidiary of the Company pursuant to which the surviving company, immediately after the merger, becomes a wholly owned subsidiary of the Company;

 

50



 

(b)          any exchange of Shares or other securities of the Company or any subsidiary of the Company or money, or other property, for shares, other securities, money, or property of (1) the interested Member or (2) any other company (whether or not itself an interested Member of the Company) that is, or after the exchange would be, an affiliate or associate of the interested Member, but excluding the exchange of shares of a company, other than an interested Member or an affiliate or associate of an interested Member, pursuant to which the company, immediately after the exchange, becomes a wholly owned subsidiary of the Company;

 

(c)           any sale, lease, exchange, mortgage, pledge, transfer, or other disposition (in a single transaction or a series of transactions), other than sales of goods or services in the ordinary course of business, to or with the interested Member or any affiliate or associate of the interested Member, other than to or with the Company or a wholly owned subsidiary of the Company, of assets of the Company or any subsidiary of the Company (1) having an aggregate market value equal to ten percent (10%) or more of the aggregate market value of all the assets, determined on a consolidated basis, of the Company, (2) having an aggregate market value equal to ten percent (10%) or more of the aggregate market value of all the outstanding Shares of the Company, or (3) representing ten percent (10%) or more of the earning power or net income, determined on a consolidated basis, of the Company, except a cash dividend or distribution paid or made pro rata to all Members of the Company;

 

(d)          the issuance or transfer by the Company or any subsidiary of the Company (in a single transaction or a series of transactions) of any shares of, or other ownership interests in, the Company or any subsidiary of the Company that have an aggregate market value equal to five percent (5%) or more of the aggregate market value of all the outstanding Shares of the Company to the interested Member or any affiliate or associate of the interested Member, except pursuant to the exercise of warrants or rights to purchase shares offered, or a dividend or distribution paid or made, pro rata to all Members of the Company other than for the purpose, directly or indirectly, of facilitating or effecting a subsequent transaction that would have been a business combination if the dividend or distribution had not been made;

 

(e)           the adoption of any plan or proposal for the liquidation or dissolution of the Company, or any reincorporation of the Company in another jurisdiction, proposed by or on behalf of, or pursuant to any written or oral agreement, arrangement, relationship, understanding, or otherwise with, the interested Member or any affiliate or associate of the interested Member;

 

(f)            any reclassification of securities (including, without limitation, any bonus shares or share split, reverse share split, or other distribution of shares in respect of shares), recapitalisation of the Company, merger of the Company with any subsidiary of the Company, exchange of Shares of the Company with any subsidiary of the Company, or other transaction (whether or not with or into or otherwise involving the interested Member), proposed by or on behalf of, or pursuant to any written or oral agreement, arrangement, relationship, understanding, or otherwise with, the interested Member or any affiliate or associate of the interested Member, that has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class or series of shares entitled to vote, or securities that are exchangeable for, convertible into, or carry a right to acquire shares entitled to vote, of the Company or any subsidiary of the Company that is, directly or indirectly, owned by the interested Member or any affiliate or associate of the interested Member, except as a result of immaterial changes due to fractional share adjustments; or

 

51



 

(g)           any receipt by the interested Member or any affiliate or associate of the interested Member of the benefit, directly or indirectly (except proportionately as a Member of the Company), of any loans, advances, guarantees, pledges, or other financial assistance, or any tax credits or other tax advantages provided by or through the Company or any subsidiary of the Company;

 

(vi)                 “company” means a corporation, limited liability company, partnership, limited partnership, joint venture, association, business trust, estate, trust, enterprise, and any other legal or commercial entity;

 

(vii)              “control”, including the terms “controlling”, “controlled by”, and “under common control with”, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise. A person’s beneficial ownership of fifteen percent (15%) or more of the voting power of a company’s outstanding shares entitled to vote in the election of directors creates a presumption that the person has control of the company. Notwithstanding the foregoing, a person is not considered to have control of a company if the person holds voting power, in good faith, as an agent, bank, broker, nominee, custodian, or trustee for one or more beneficial owners who do not individually or as a group have control of the company;

 

(viii)           “governing body” means the body of a company selected by its owners that has the ultimate power to determine the company’s policies and control its activities;

 

(ix)                 “interested Member” means any person (including for this purpose any persons acting in concert with that person (as that term is defined in the Takeover Rules issued pursuant to the Irish Takeover Panel Act 1997)) that is (1) the beneficial owner, directly or indirectly, of fifteen percent (15%) or more of the voting power of the outstanding Shares entitled to vote of the Company or (2) an affiliate or associate of the Company that, at any time within the three (3) year period immediately before the date on which it is sought to be determined whether such person is an interested Member, was the beneficial owner, directly or indirectly, of fifteen percent (15%) or more of the voting power of the then outstanding Shares entitled to vote of the Company.

 

If a person who has not been a beneficial owner of fifteen percent (15%) or more of the voting power of the outstanding Shares entitled to vote of the Company immediately prior to an acquisition of Shares by, or recapitalisation of, the Company or similar action shall become a beneficial owner of fifteen percent (15%) or more of the voting power solely as a result of the share acquisition, recapitalisation, or similar action, the person shall not be deemed to be the beneficial owner of fifteen percent (15%) or more of the voting power for purposes of (1) or (2) above, unless:

 

(a)          the share acquisition, recapitalisation, conversion, or similar action was proposed by or on behalf of, or pursuant to any agreement, arrangement, relationship, understanding, or otherwise (whether or not in writing) with, the person or any affiliate or associate of the person; or

 

(b)          the person thereafter acquires beneficial ownership, directly or indirectly, of outstanding Shares entitled to vote of the Company and, immediately after the acquisition, is the beneficial owner, directly or indirectly, of fifteen percent (15%) or more of the voting power of the outstanding Shares entitled to vote of the Company.

 

(x)                    an “interested Member” does not include:

 

(a)                                  the Company or any of its subsidiaries;

 

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(b)                                  a savings, employee stock ownership, or other employee benefit plan of the Company or its subsidiary, or a fiduciary of the plan when acting in a fiduciary capacity pursuant to the plan; or

 

(c)                                   a licensed broker/dealer or licensed underwriter who (1) purchases Shares of the Company solely for purposes of resale to the public and (2) is not acting in concert with an interested Member.

 

Shares beneficially owned by a plan described in clause (b) or by a fiduciary of a plan described in clause (b), pursuant to the plan, are not deemed to be beneficially owned by a person who is a fiduciary of the plan;

 

(xi)                 “market value”, when used in reference to shares or other property of any company, means the following:

 

(a)                                  in the case of shares, the average closing sale price of a share during the thirty (30) trading days immediately preceding the date in question:

 

(1)          on the composite tape for NASDAQ Stock Market listed shares; or

 

(2)          if the shares are not quoted on the composite tape or not listed on the NASDAQ Stock Market, on the principal United States securities exchange registered under Exchange Act on which the shares are listed; or

 

(3)          if the shares are not listed on any such exchange, on any system then in use.

 

If no quotation under clauses (1) through (3) is available, then the market value is the fair market value on the date in question of the shares as determined in good faith by the governing body of the company.

 

(b)                                  in the case of property other than cash or shares, the fair market value of the property on the date in question as determined in good faith by the governing body of the company.

 

(xii)              “parent” of a specified company means a company that directly, or indirectly through related companies, owns more than fifty percent (50%) of the voting power of the shares or other ownership interests entitled to vote for directors or other members of the governing body of the specified company;

 

(xiii)           “person” includes a natural person and a company;

 

(xiv)          “related company” of a specified company means:

 

(a)                                  a parent or subsidiary of the specified company;

 

(b)                                  another subsidiary of a parent of the specified company;

 

(c)                                   a limited liability company owning, directly or indirectly, more than fifty percent (50%) of the voting power of the shares entitled to vote for directors of the specified company;

 

(d)                                  a limited liability company having more than fifty percent (50%) of the voting power of its membership interests entitled to vote for members of its governing body owned directly or indirectly by the specified company;

 

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(e)                                   a limited liability company having more than fifty percent (50%) of the voting power of its membership interests entitled to vote for members of its governing body owned directly or indirectly either (1) by a parent of the specified company or (2) a limited liability company owning, directly or indirectly, more than fifty percent (50%) of the voting power of the shares entitled to vote for directors of the specified company; or

 

(f)                                    a company having more than fifty percent (50%) of the voting power of its shares entitled to vote for directors owned directly or indirectly by a limited liability company owning, directly or indirectly, more than fifty percent (50%) of the voting power of the shares entitled to vote for directors of the specified company;

 

(xv)             “security” means a note, stock, treasury stock, security future, bond, debenture, evidence of indebtedness, certificate of interest or participation in a profit-sharing agreement, collateral trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, put, call, straddle, option, or privilege on a security, certificate of deposit, or group or index of securities, including an interest therein or based on the value thereof, put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, an interest or instrument commonly known as a “security”; or a certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. The term:

 

(a)                                  includes both a certificated and an uncertificated security;

 

(b)                                  does not include an insurance or endowment policy or annuity contract under which an insurance company promises to pay a fixed or variable sum of money either in a lump sum or periodically for life or other specified period;

 

(c)                                   does not include an interest in a contributory or noncontributory pension or welfare plan subject to the United States Employee Retirement Income Security Act of 1974, as amended;

 

(d)                                  includes as an “investment contract,” among other contracts, an interest in a limited partnership and a limited liability company and an investment in a viatical settlement or similar agreement; and

 

(e)                                   does not include any equity interest of a closely held corporation or other entity with not more than thirty-five (35) holders of the equity interest of such entity offered or sold pursuant to a transaction in which one hundred percent (100%) of the equity interest of such entity is sold as a means to effect the sale of the business of the entity if the transaction has been negotiated on behalf of all purchasers and if all purchasers have access to inside information regarding the entity before consummating the transaction; and

 

(xvi)          “subsidiary” of a specified company means a company having more than fifty percent (50%) of the voting power of its shares or other ownership interests entitled to vote for directors or other members of the governing body of the company owned directly, or indirectly through related companies, by the specified company.

 

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We, the corporate body whose name and address is subscribed, wish to be formed into a company in pursuance of this memorandum of association, and we agree to take the number of shares in the capital of the Company set opposite our respective names.

 

 

Name, Address and Description

Number of shares

of the Subscriber

taken by the Subscriber

 

 

 

 

 

 

For and on behalf of

 

 

 

Dated

 

 

Witness to the above signature:

 

 

 

 

 

 

 

Name:

 

 

 

 

 

 

 

Address:

 

 

 

 

 

 

 

Occupation:

 

 

55


Exhibit 10.1

 

Form of Indemnification Agreement

 

DEED OF INDEMNIFICATION

 

This Deed of Indemnification (this “ Deed ”) is effective as of                 2017, by and between Nabriva Therapeutics plc, an Irish public limited company (as further defined below, the “Company”), and [INSERT NAME OF DIRECTOR/OFFICER] (“ Indemnitee ”).

 

A.             The Company recognizes the difficulty in obtaining liability insurance for its directors, officers, company secretary and fiduciaries, and the significant cost of such insurance and the general limitations in the coverage of such insurance.

 

B.             The Company further recognizes the substantial increase in litigation in general, subjecting directors, officers, company secretaries and fiduciaries to expensive litigation risks at the same time as the availability and coverage of liability insurance has been severely limited.

 

C.             The Company recognizes that the current protection available to its directors and company secretary may not be adequate under the present circumstances, and the Company’s directors and company secretary, including Indemnitee, may not be willing to serve or continue to serve or be associated with the Company in such capacities without additional protection.

 

D.             The Company (a) desires to attract and retain the involvement of highly qualified persons, such as Indemnitee, to serve and be associated with the Company, and (b) accordingly, wishes to provide for the indemnification of and advancement of expenses to Indemnitee to the maximum extent permitted by applicable law.

 

E.             In view of the considerations set forth above, the Company desires that Indemnitee shall be indemnified, exonerated, held harmless by the Company as set forth herein.

 

AGREEMENT :

 

In consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.              Certain Definitions.

 

1.1.          Awards ” shall mean any and all judgments, fines, penalties and amounts paid in settlement (if such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld), actually and reasonably incurred, of any Claim and any Irish tax, Austrian tax U.S. federal, state or local tax, or other foreign tax imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Deed. The term “judgments, fines penalties and amounts paid in settlement” shall be broadly construed and shall include, without limitation, all direct and indirect payments of any type or nature whatsoever, including, without limitation, all penalties and amounts required to be forfeited or reimbursed to the Company, as well as any penalties or excise taxes assessed on a person with respect to an employee benefit plan.

 

1.2.          Change in Control ” shall be deemed to have occurred if, on or after the date of this Deed, (i) any “ person ” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company acting in such capacity or an entity owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company,

 



 

becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the total voting power represented by the Company’s then outstanding Voting Securities, (ii) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Company’s Board of Directors and any new director whose election by the Company’s Board of Directors or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved (such directors, the “ Continuing Directors ”), cease for any reason to constitute a majority thereof, (iii) the shareholders of the Company approve a merger of the Company with any other entity other than a merger which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least eighty percent (80%) of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger, (iv) the shareholders of the Company approve a scheme of arrangement in respect of the Company, (v) the shareholders of the Company approve a plan of complete liquidation of the Company or where such approval is not required, a court of competent jurisdiction approves such liquidation or (vi) an agreement is entered into for the sale or disposition by the Company of (in one transaction or a series of related transactions) all or substantially all of the Company’s assets.

 

1.3.          Claim ” shall mean with respect to a Covered Event:  any threatened, asserted, pending or completed action, suit, proceeding or alternative dispute resolution mechanism, or any hearing, inquiry or investigation (formal or informal) that Indemnitee in good faith believes might lead to the institution of any such action, suit, proceeding or alternative dispute resolution mechanism, whether civil, criminal, administrative, investigative or other, including any appeal therefrom.

 

1.4.          Companies Act ” shall mean the Companies Act, 2014 of Ireland, as amended, or any successor or consolidating statute, and references in this Deed to any section of the Companies Act shall be read as references to the corresponding provision of any such amending, succeeding or consolidating statute.

 

1.5.          References to the “ Company ” shall include, in addition to Nabriva Therapeutics plc and each of its subsidiaries, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger to which Nabriva Therapeutics plc (or any of its subsidiaries) is a party, which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, company secretaries or fiduciaries so that if Indemnitee is or was a director, officer, company secretary or fiduciary of such constituent entity, or is or was serving at the request of such constituent entity as a director, officer, company secretary, employee, agent or fiduciary of another company, corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Deed with respect to the resulting or surviving entity as Indemnitee would have with respect to such constituent entity if its separate existence had continued.  Notwithstanding the foregoing definition of the “ Company ,” references to the “ Company’s Board of Directors ” shall mean the Board of Directors of Nabriva Therapeutics plc.

 

1.6.          Covered Event ” shall mean any event or occurrence by reason of the fact that Indemnitee is or was a director, officer, company secretary or fiduciary of the Company, or any subsidiary of the Company, direct or indirect, whether before or after the date of this Deed, or is or was serving at the request of the Company as a director, officer, company secretary, employee, agent or fiduciary of another company, corporation, partnership, joint venture, employee benefit plan, trust

 



 

or other enterprise, including as a deemed fiduciary thereof, or by reason of any action or inaction on the part of Indemnitee while serving in such capacity, whether before or after the date of this Deed.

 

1.7.          Exchange Act ” shall mean the U.S. Securities Exchange Act of 1934, as amended, or any successor statute, and any rules and regulations promulgated thereunder.

 

1.8.          Expense Advance ” shall mean a payment to or on behalf of Indemnitee for Expenses pursuant to Clause 3 hereof, in advance of the settlement of or final judgment in any action, suit, proceeding or alternative dispute resolution mechanism, hearing, inquiry or investigation, which constitutes a Claim.

 

1.9.          Expenses ” shall mean any and all direct and indirect costs, losses, claims, damages, fees, expenses and liabilities, joint or several (including attorneys’ fees and all other costs, expenses and obligations reasonably incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, to be a witness in or to participate in, any action, suit, proceeding, alternative dispute resolution mechanism, hearing, inquiry or investigation actually and reasonably incurred in respect of any Claim), other than any Award.

 

1.10.        References to “ good faith ” shall mean that Indemnitee shall be presumed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or the Company’s Board of Directors or counsel selected by any committee of such Board, or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker, compensation consultant, or other expert or advisor selected with reasonable care by the Company or its Board of Directors or any committee thereof. This Clause 1.10 shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct.  Whether or not the foregoing provisions of this Clause 1.10 are satisfied, it shall in any event be presumed, absent clear and convincing evidence to the contrary, that Indemnitee has at all times acted in good faith in accordance with this definition and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company.

 

1.11.        Indemnify ” and “ Indemnified ” shall mean to indemnify, exonerate and hold harmless under this Deed, and shall include the right to receive Expense Advances; other capitalized forms of this defined term shall mean the appropriate form of this definition.

 

1.12.        Independent Legal Counsel ” shall mean an attorney or firm of attorneys, selected in accordance with the provisions of Clause 2.4 hereof, who shall not have otherwise performed services for (i) the Company or Indemnitee in any matter material to either such party or (ii) any other party to the Claim giving rise to a claim to be Indemnified, within the last three (3) years (in each case, other than with respect to matters concerning the rights of Indemnitee under this Deed, or of other indemnitees who are parties to indemnification agreements with the Company or Nabriva Therapeutics AG that are similar to this Deed). Notwithstanding the foregoing, the term “ Independent Legal Counsel ” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Deed.

 



 

1.13.        References to “ other enterprises ” shall include employee benefit plans; references to “ fines ” shall include any excise tax assessed on Indemnitee with respect to an employee benefit plan; and references to “ serving at the request of the Company ” shall include any service as a director, officer, company secretary, employee, agent or fiduciary of the Company which imposes duties on, or involves services by, such director, officer, company secretary, employee, agent or fiduciary with respect to an employee benefit plan, its participants or its beneficiaries, including as a deemed fiduciary thereto; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “ not opposed to the best interests of the Company ” as referred to in this Deed.

 

1.14.        Otherwise ” shall refer to the Company’s memorandum and articles of association (and any similar governing document), any agreement other than this Deed (including any insurance policy purchased or maintained by the Company), any vote of the Company’s shareholders or resolution of the Company’s Board of Directors, the Companies Act (or other applicable law), or otherwise, in each case as may be now or hereafter in effect.

 

1.15.        Reviewing Party ” shall mean, subject to the provisions of Clause 2.4 hereof, any person or body duly appointed by the Company’s Board of Directors to review the Company’s obligations under this Deed, which may include a member or members of the Company’s Board of Directors, Independent Legal Counsel or any other person or body not a party to the particular Claim for which Indemnitee is seeking to be Indemnified.  In the absence of the appointment of another Reviewing Party, but subject to the provisions of Clause 2.4 hereof, the Company’s Board of Directors shall be deemed to be the “Reviewing Party” within the meaning of this Deed.

 

1.16.        Sarbanes-Oxley Act ” shall mean the U.S. Sarbanes-Oxley Act of 2002, as amended, or any successor statute, and any rules and regulations promulgated thereunder.

 

1.17.        Securities Act ” shall mean the U.S. Securities Act of 1933, as amended, or any successor statute, and any rules and regulations promulgated thereunder.

 

1.18.        Voting Securities ” shall mean any securities of the Company that entitle its holder to vote generally in the election of members of the Company’s Board of Directors.

 

2.              Indemnification .

 

2.1.          Indemnification of Expenses and Awards .  Subject to the provisions of Clause 2.2 below, the Company shall Indemnify Indemnitee for Expenses and Awards to the fullest extent permitted by applicable law if Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, any Claim (by reason of or arising in part out of a Covered Event), including all interest, assessments and other charges incurred in connection with or in respect of such Expenses or Awards.

 

2.2.          Review of Indemnification Obligations .

 

2.2.1.       Notwithstanding the foregoing, to the extent any Reviewing Party shall have determined (in a written opinion, in any case in which Independent Legal Counsel is the Reviewing Party) that Indemnitee is not entitled to be Indemnified, (A) the Company shall have no further obligation under Clause 2.1 above to Indemnify Indemnitee, and (B) the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all Expenses and Awards paid

 



 

prior to such determination (which reimbursement shall be made within thirty (30) days after such determination); provided, however, that if Indemnitee has commenced or thereafter commences legal proceedings in a court having jurisdiction under this Deed to secure a determination that Indemnitee is entitled to be Indemnified, any determination made by any Reviewing Party that Indemnitee is not entitled to be Indemnified shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expenses or Awards theretofore paid in Indemnifying Indemnitee until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or lapsed).

 

2.2.2.       Subject to Clause 2.2.3 below, if the Reviewing Party shall not have made a determination within forty-five (45) days after receipt by the Company of the request therefor, the requisite determination of entitlement of Indemnitee to be Indemnified shall, to the fullest extent permitted by applicable law, be deemed to have been made and Indemnitee shall be entitled to be Indemnified, absent (A) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request to be Indemnified or (B) a prohibition under applicable law against Indemnitee being Indemnified under this Deed; provided, however, that such 45-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to be Indemnified in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto.

 

2.2.3.       Notwithstanding anything in this Deed to the contrary, no determination as to entitlement of Indemnitee to be Indemnified under this Deed shall be required to be made prior to the final disposition of the Claim.

 

2.3.          Indemnitee Rights on Unfavorable Determination; Binding Effect .  If any Reviewing Party determines that Indemnitee is not entitled to be Indemnified in whole or in part, Indemnitee shall have the right to commence legal proceedings in a court having jurisdiction under this Deed in order to seek a judicial determination by such court or challenging any such determination by such Reviewing Party or any aspect thereof, including the legal or factual bases therefor, and, subject to the provisions of Clause 16 hereof, the Company hereby consents to service of process and to appear in any such proceedings.  Such review shall be de novo and Indemnitee shall not be prejudiced by any prior determination by any Reviewing Party that Indemnitee is not entitled to be Indemnified.  Absent such proceedings, any determination by any Reviewing Party shall be conclusive and binding on the Company and Indemnitee.

 

2.4.          Selection of Reviewing Party; Change in Control .  If there has not been a Change in Control, any Reviewing Party shall be selected by the Company’s Board of Directors, which may be the Company’s Board of Directors in the absence of the selection of another Reviewing Party.  If there has been a Change in Control (other than a Change in Control which has been approved by a majority of the Continuing Directors), any Reviewing Party with respect to all matters thereafter arising concerning Indemnitee’s rights to be Indemnified under this Deed, if desired by Indemnitee, shall be Independent Legal Counsel selected by Indemnitee and approved by Company (which approval shall not be unreasonably withheld).  Such counsel, among other things, shall render its written opinion to the Company and Indemnitee as to whether and to what extent Indemnitee would be entitled to be Indemnified and the Company agrees to abide by such opinion.  The Company agrees to pay the reasonable fees of the Independent Legal Counsel referred to above and to fully indemnify such counsel against any and all expenses (including

 



 

attorneys’ fees), claims, liabilities and damages arising out of or relating to this Deed or its engagement pursuant hereto.  Notwithstanding any other provision of this Deed, the Company shall not be required to pay Expenses of more than one Independent Legal Counsel in connection with all matters concerning Indemnitee, and such Independent Legal Counsel shall be the Independent Legal Counsel for any or all other indemnitees who are parties to indemnification agreements with the Company or Nabriva Therapeutics AG that are similar to this Deed unless (i) the Company otherwise determines or (ii) Indemnitee or any such other indemnitee provides a written statement setting forth in detail a reasonable objection to such Independent Legal Counsel representing Indemnitee and such other indemnitees.

 

2.5.          Mandatory Payment of Expenses and Awards .  If Indemnitee is not wholly successful in such Claim but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Claim, the Company shall Indemnify Indemnitee against all Expenses and Awards actually and reasonably incurred by Indemnitee or on his behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by applicable law.

 

2.6.          Contribution .  Notwithstanding anything to the contrary contained herein, if the rights to be Indemnified provided for in this Deed are for any reason held by a court having jurisdiction to be unavailable to an Indemnitee (other than, for the avoidance of doubt, as a result of the application of any exclusions explicitly contemplated hereby), then in lieu of Indemnifying Indemnitee, the Company shall contribute, to the fullest extent permitted by applicable law, to the amount paid or required to be paid by Indemnitee as a result of such Expenses or Awards (i) in such proportion as is deemed fair and reasonable in light of all of the circumstances in order to reflect the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Claim or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company (and its directors, officers, company secretaries, employees, agents and fiduciaries other than Indemnitee), on the one hand, and Indemnitee, on the other hand, in connection with the action or inaction which resulted in such Expenses, as well as any other relevant equitable considerations.

 

The Company and Indemnitee agree, to the fullest extent permitted by applicable law, that it would not be just and equitable if contribution pursuant to this Clause 2.6 were determined by pro rata or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph.

 

3.              Expense Advances .

 

3.1.          Obligations to Make and Repay Expense Advances .  The Company shall make Expense Advances to or on behalf of Indemnitee, to the fullest extent permitted by law, and the Indemnitee hereby irrevocably and unconditionally undertakes and agrees to repay such amounts to the extent a final judicial determination is made (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee is not entitled to be Indemnified under this Deed or Otherwise.  The right to Expense Advances under this Clause 3 shall in all events continue until final disposition of any Claim (as to which all rights of appeal therefrom have been exhausted or lapsed).  Expense Advances shall be made without regard to Indemnitee’s ability to repay and shall include any and all reasonable Expenses incurred pursuing a Claim to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. Without limiting the generality or effect of the foregoing, within ten (10) business days after any request by Indemnitee, the Company shall, in accordance with

 



 

such request (but without duplication), (i) pay such Expenses on behalf of Indemnitee, (ii) advance to Indemnitee funds in an amount sufficient to pay such Expenses, or (iii) reimburse Indemnitee for such Expenses.

 

3.2.          Undertaking Unsecured; No Interest .  The foregoing obligation by Indemnitee to repay any Expense Advances shall be unsecured and no interest shall be charged thereon.  Expense Advances are intended to be an obligation of the Company to Indemnitee hereunder and shall in no event be deemed to be a personal loan.

 

4.              Procedures for Indemnification and Expense Advances .

 

4.1.          Timing of Payments .  All payments of Expenses (including Expense Advances) and Awards by the Company to or on behalf of Indemnitee pursuant to this Deed shall be made to the fullest extent permitted by applicable law as soon as practicable after written demand by Indemnitee therefor is presented to the Company, but in no event later than thirty (30) days after such written demand by Indemnitee is presented to the Company, except in the case of Expense Advances, which shall be made no later than ten (10) business days after such written demand by Indemnitee is presented to the Company.  If the Company disputes a portion of the amounts for which payment is requested, the undisputed portion shall be paid and only the disputed portion withheld pending resolution of any such dispute.

 

4.2.          Notice/Cooperation by Indemnitee .  Indemnitee shall give the Company notice in writing as soon as practicable of any Claim made against Indemnitee for which rights to be Indemnified will be reasonably likely to be sought under this Deed.  Notice to the Company shall be directed to the company secretary of the Company at the Company’s registered office (or such other address as the Company shall designate in writing to Indemnitee) and shall include a description of the nature of the Claim and the facts underlying the Claim, in each case to the extent known to Indemnitee.  Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to be Indemnified following the final disposition of such Claim.  In addition, Indemnitee shall give the Company such information and cooperation as the Company may reasonably require and as shall be within Indemnitee’s power.  The failure by Indemnitee to so notify the Company of any Claim pursuant to this Clause 4.2 will not relieve the Company from any liability which it may have to Indemnitee under this Deed, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights under this Deed, except to the extent (solely with respect to indemnification under this Deed) that such failure or delay materially prejudices the Company in its defense of such Claim.

 

4.3.          No Presumptions; Burden of Proof .  For purposes of this Deed, to the fullest extent permitted by applicable law, the termination of any Claim by judgement, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that the right to be Indemnified is not permitted.  In addition, neither the failure of any Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by any Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified, shall be a defence to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief.  In connection with any determination by

 



 

any Reviewing Party or otherwise as to whether Indemnitee is entitled to be Indemnified, the burden of proof shall be on the Company, by clear and convincing evidence, to establish that Indemnitee is not so entitled.  It shall be a defense to any legal proceeding by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 of this Deed) that the indemnification sought by Indemnitee in such legal proceeding is not available under applicable law, but the burden of proof shall be on the Company, by clear and convincing evidence, to establish such defense.

 

4.4.          Notice to Insurers .  If, at the time of the receipt by the Company of a notice of a Claim pursuant to Clause 4.2 hereof, the Company has insurance in effect which may cover such Claim, the Company shall give prompt notice of the commencement of such Claim to the insurers in accordance with the procedures set forth in the respective insurance policies.  The Company shall thereafter take all reasonably necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Claim in accordance with the terms of such policies.

 

4.5.          Selection of Counsel .  In the event the Company shall be obligated under this Deed to Indemnify Indemnitee with respect to the Expenses or Awards arising in connection with, or with respect to, any Claim, the Company, if appropriate, shall be entitled to assume the defence of such Claim with counsel approved by Indemnitee (which approval shall not be unreasonably withheld) upon the delivery to Indemnitee of written notice of the Company’s election to do so.  After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Deed for any fees or expenses of separate counsel subsequently employed by or on behalf of Indemnitee with respect to the same Claim; provided, however, that (i) Indemnitee shall have the right to employ Indemnitee’s separate counsel in any such Claim at Indemnitee’s expense and (ii) if (A) the employment of separate counsel by Indemnitee has been previously authorized by the Company, (B) counsel to the Company or counsel to Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of any such defence or (C) the Company shall not continue to retain such counsel to defend such Claim, then the fees and expenses of Indemnitee’s separate counsel shall be Expenses for which Indemnitee shall be Indemnified.  The Company shall have the right to conduct such defence as it sees fit in its sole discretion, including the right to settle any claim, action or proceeding against Indemnitee without the consent of Indemnitee, provided that the terms of such settlement include either: (i) a full release of Indemnitee by the claimant from all liabilities or potential liabilities under such claim or (ii), in the event such full release is not obtained, the terms of such settlement do not impose any penalty or limitation on Indemnitee without Indemnitee’s written consent, which may be given or withheld in Indemnitee’s sole discretion, and do not limit any rights to be Indemnified that Indemnitee may now, or hereafter, be entitled to under this Deed or Otherwise.  The Company shall not be entitled to assume the defense of any Claims brought by or in the right of the Company, of any criminal Claim against the Indemnitee or if counsel to the Company or any Claim with respect to which counsel to Indemnitee shall have reasonably made the conclusion set forth in Clause (ii)(B) above.

 

5.              Additional Indemnification Rights; Nonexclusivity .

 

5.1.          Scope .  The Company hereby agrees to Indemnify Indemnitee to the fullest extent permitted by applicable law, notwithstanding that such right to be Indemnified is not specifically authorized by this Deed or Otherwise. Indemnitee’s right to be so Indemnified shall be interpreted independently of, and without reference to, any other such rights to which Indemnitee may at any time be

 



 

entitled. In the event of any change after the date of this Deed in any applicable law which expands the ability of the Company to Indemnify Indemnitee, it is the intent of the parties hereto that Indemnitee shall enjoy by this Deed the greater benefits afforded by such change.  In the event of any change in any applicable law which narrows the right of the Company to Indemnify Indemnitee, to the extent not otherwise required by such law to be applied to this Deed, such narrowing change shall have no effect on this Deed or the parties’ rights and obligations under this Deed except as set forth in Clause 10.1 hereof.

 

5.2.          Nonexclusivity .  Indemnitee’s rights to be Indemnified under this Deed shall, to the fullest extent permitted by applicable law, be in addition to any similar Indemnity rights to which Indemnitee may be entitled Otherwise.  The rights to be so Indemnified shall continue as to Indemnitee for any action taken or not taken while serving as a director, officer, company secretary or fiduciary of the Company or while serving any other enterprise at the request of the Company even though subsequent thereto Indemnitee may have ceased to serve in such capacity.

 

6.              No Duplication or Off-Set of Payments .   The Company shall not be liable under this Deed to make any payment in connection with any Claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, provision of the Company’s memorandum and articles of association (or any similar governing document of the Company or any other enterprise served by the Indemnitee at the request of the Company), the Companies Act, (or other applicable law), or otherwise (including any indemnification agreement with any affiliate of the Company)) of the amounts otherwise payable under this Deed, except as provided in Clause 19 below.  Notwithstanding any other provision of this Deed to the contrary, (i) Indemnitee shall have no obligation to reduce, offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple parties possessing such duties to Indemnitee prior to the Company’s satisfaction and performance of all its obligations under this Deed, and (ii) the Company shall perform fully its obligations under this Deed without regard to whether Indemnitee holds, may pursue or has pursued any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage rights against any person or entity other than the Company.

 

7.              Partial Indemnification .   If Indemnitee is entitled under any provision of this Deed to be Indemnified by the Company for some or a portion of Expenses or Awards incurred in connection with, or with respect to, any Claim, but not, however, for the total amount thereof, the Company shall, to the fullest extent permitted by applicable law, nevertheless Indemnify Indemnitee for the portion of such Expenses or Awards to which Indemnitee is entitled.

 

8.              Warranty .   The Company warrants by its execution hereof that it has power to enter into and has duly authorised the execution and delivery of this Deed and that its obligations hereunder constitute legal, valid and binding obligations enforceable against the Company in accordance with its terms.

 

9.              Liability Insurance .   In the event of a Change in Control, the Company shall maintain in force any and all insurance policies then maintained by the Company in providing insurance (directors’ and officers’ liability, fiduciary, employment practices or otherwise) in respect of the individual directors, company secretaries and officers of the Company, for a fixed period of six years thereafter (a “Tail Policy”). Such coverage shall be placed by the Company’s incumbent insurance broker with the incumbent insurance carriers using the policies that were in place at the time of the Change in Control (unless the incumbent carriers will not offer such policies, in which case the Tail Policy placed by the Company’s insurance broker shall be substantially comparable in scope and amount as the expiring policies, and the insurance carriers for the Tail Policy shall

 



 

have an AM Best rating that is the same or better than the AM Best ratings of the expiring policies).

 

10.           Exceptions .   Notwithstanding any other provision of this Deed, the Company shall not be obligated pursuant to the terms of this Deed:

 

10.1.        Excluded Action or Omissions .  To Indemnify Indemnitee for Expenses resulting from acts, omissions or transactions for which Indemnitee is prohibited by applicable law from being Indemnified, as determined by a court of competent jurisdiction in a final judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed); provided, however, that notwithstanding any limitation set forth in this Clause 10.1 regarding the Company’s obligation to Indemnify Indemnitee, Indemnitee shall be entitled under Clause 3 hereof to receive Expense Advances with respect to any such Claim unless and until a court having jurisdiction over the underlying Claim shall have made a final judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee has engaged in acts, omissions or transactions for which Indemnitee is prohibited by applicable law from being Indemnified.

 

10.2.        Claims Initiated by Indemnitee .  To Indemnify Indemnitee with respect to Claims initiated or brought voluntarily by Indemnitee and not by way of defence, counterclaim or cross-claim, except (i) with respect to actions or proceedings brought to establish or enforce a right to be Indemnified under this Deed or Otherwise, (ii) if the Company’s Board of Directors has approved the initiation or bringing of such Claim or (iii) as otherwise required under the Companies Act (or other applicable law), regardless of whether Indemnitee ultimately is determined to be entitled to be Indemnified under this Deed or Otherwise.

 

10.3.        Lack of Good Faith .  To Indemnify Indemnitee with respect to any action instituted (i) by Indemnitee to enforce or interpret this Deed, if a court having jurisdiction over such action makes a final judicial determination as provided in Clause 13 hereof that each of the material assertions made by Indemnitee as a basis for such action was made in bad faith or was frivolous or (ii) by or in the name of the Company to enforce or interpret this Deed, if a court having jurisdiction over the underlying Claim makes a final judicial determination as provided in Clause 13 hereof that each of the material defences asserted by Indemnitee in such action was made in bad faith or was frivolous.

 

10.4.        Claims Under Section 16(b) of Exchange Act or Sarbanes-Oxley Act .  To Indemnify Indemnitee for (i) Expenses, Awards or the disgorgement of profits arising from a violation of Section 16(b) of the Exchange Act or any similar successor statute or (ii) any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act, or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act); provided, however, that notwithstanding any limitation set forth in this Clause 10.4 regarding the Company’s obligation to Indemnify Indemnitee, Indemnitee shall be entitled under Clause 3 hereof to receive Expense Advances under this Deed with respect to any such Claim unless and until a court having jurisdiction over the underlying Claim makes a final judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee has violated said statute.

 



 

10.5.                      Additional Limitation .  To Indemnify Indemnitee with respect to any obligation of Indemnitee based upon or attributable to Indemnitee gaining in fact any personal gain, profit or advantage to which Indemnitee was not entitled.

 

11.                                Counterparts .   This Deed may be executed in counterparts and by facsimile or electronic transmission, each of which shall constitute an original and all of which, together, shall constitute one instrument.

 

12.                                Binding Effect; Successors and Assigns .   This Deed shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, or otherwise to all or substantially all of the business and/or assets of the Company), spouses, heirs, and personal and legal representatives.  The Company shall require and cause any successor (whether direct or indirect by purchase, merger, or otherwise) to all, substantially all, or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Deed and to indemnify Indemnitee to the fullest extent permitted by applicable law.  This Deed shall continue in effect regardless of whether Indemnitee continues to serve as a director, officer, company secretary or fiduciary of the Company or as a director, officer, company secretary, employee, agent or fiduciary of any other enterprise at the Company’s request.

 

13.                                Expenses Incurred in Action Relating to Enforcement or Interpretation .   In the event that any action is instituted by Indemnitee under this Deed or Otherwise to enforce or interpret any of the terms hereof or thereof, Indemnitee shall be entitled to be Indemnified for all Expenses incurred by Indemnitee with respect to such action (including attorneys’ fees), regardless of whether Indemnitee is ultimately successful in such action, unless as a part of such action a court having jurisdiction over such action makes a final judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed) that each of the material assertions made by Indemnitee as a basis for such action was not made in good faith or was frivolous; provided, however, that until such final judicial determination is made, Indemnitee shall be entitled under Clause 3 hereof to receive payment of Expense Advances with respect to such action.  In the event of an action instituted by or in the name of the Company under this Deed to enforce or interpret any of the terms of this Deed, Indemnitee shall be entitled to be Indemnified for all Expenses incurred by Indemnitee in defence of such action (including costs and expenses incurred with respect to Indemnitee’s counterclaims and cross-claims made in such action) unless as a part of such action a court having jurisdiction over such action makes a final judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed) that each of the material defences asserted by Indemnitee in such action was made in bad faith or was frivolous; provided, however, that until such final judicial determination is made, Indemnitee shall be entitled under Clause 3 to receive payment of Expense Advances with respect to such action.

 

14.                                Monetary Damages Insufficient .   The Company and Indemnitee agree that a monetary remedy for breach of this Deed may be inadequate, impracticable and difficult of proof, and further agree that such breach may cause Indemnitee irreparable harm.  Accordingly, the parties hereto agree that Indemnitee may enforce this Deed by seeking injunctive relief and/or specific performance hereof, without any necessity of showing actual damage or irreparable harm (having agreed that actual and irreparable harm will result if the Company is not forced to specifically perform its obligations pursuant to this Deed) and that by seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded from seeking or obtaining any other relief to which Indemnitee may be entitled.  The Company and Indemnitee further agree that Indemnitee

 



 

shall be entitled to such specific performance and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds or other undertaking in connection therewith.  The Company acknowledges that in the absence of a waiver, a bond or undertaking may be required of Indemnitee by a court, and the Company nonetheless hereby waives any such requirement of a bond or undertaking.

 

15.                                Notices .   All notices, requests, demands and other communications under this Deed shall be in writing and shall be deemed duly given (i) if delivered by hand and signed for by the party addressed, on the date of such delivery or (ii) if mailed by domestic certified or registered mail with postage prepaid, on the third business day after the date postmarked.  Addresses for notice to each party are, (i) in respect of the Company its registered office, and (ii) in respect of the Indemnitee as shown on the signature page of this Deed, or in each case as subsequently modified by written notice.

 

16.                                Consent to Jurisdiction .   The Company and Indemnitee each hereby irrevocably consent to the exclusive jurisdiction of the courts of Ireland for all purposes in connection with any action or proceeding which arises out of or relates to this Deed and agree that any action or proceeding instituted under this Deed shall be commenced, prosecuted and continued only in Dublin, Ireland, which shall be the exclusive and only proper forum for adjudicating any matter which arises out of or relates to this Deed.

 

17.                                Severability .   The provisions of this Deed shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court having jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by applicable law.  Furthermore, to the fullest extent possible, (i) the provisions of this Deed (including each portion of this Deed containing any provision held to be invalid, void or otherwise unenforceable, that is not itself invalid, void or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable, and (ii) to the extent any provision of this Deed is held to be invalid, illegal or unenforceable, such provision shall not be stricken, but shall instead be construed so as to give maximum effect to the intent manifested by the provision held to be invalid, illegal or unenforceable.

 

18.                                Choice of Law .   This Deed, and all rights, remedies, liabilities, powers and duties of the parties to this Deed, shall be governed by and construed in accordance with the laws of Ireland.

 

19.                                Subrogation .   In the event of payment under this Deed, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee from any insurance policy purchased or maintained by the Company, and Indemnitee shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights.  In no event, however, shall the Company or any other person have any right of recovery, through subrogation or otherwise, against (i) Indemnitee or (ii) any insurance policy purchased or maintained by Indemnitee.

 

20.                                Amendment and Termination .   No amendment, modification, termination or cancellation of this Deed shall be effective unless it is in writing signed by both the parties hereto.  No waiver of any of the provisions of this Deed shall be effective unless it is signed in writing by the party against whom such waiver is sought to be enforced, nor shall any such waiver be deemed to be or shall constitute a waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver.

 



 

21.                                Integration and Entire Agreement .   This Deed sets forth the entire understanding between the parties hereto and supersedes and merges all previous written and oral negotiations, commitments, understandings and agreements relating to the subject matter hereof between the parties hereto, including any prior indemnification agreement; provided, however, that this Deed is a supplement to and in furtherance of the Company’s memorandum and articles of association (and any similar governing document), any agreement (including any insurance policy), any vote of the Company’s shareholders or resolution of the Company’s Board of Directors, and the Companies Act and other applicable law, in each case as may be now or hereafter in effect, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.

 

22.                                No Construction as Employment Agreement Nothing contained in this Deed shall be construed as giving Indemnitee any right to employment by the Company or to continue serving in any capacity with the Company, any of its affiliates or any other enterprise.

 

23.                                Additional Acts .   If for the validation of any of the provisions in this Deed any act, resolution, approval or other procedure is required, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Deed.

 

24.                                Companies Act .   The Company’s obligations under this Deed remain subject at all times to the provisions of Section 235 of the Companies Act.

 

(The remainder of this page is intentionally left blank.)

 



 

IN WITNESS WHEREOF , the parties hereto have executed this Deed of Indemnification as a Deed and as of the date first above written.

 

 

GIVEN UNDER THE COMMON SEAL

of NABRIVA THERAPEUTICS PLC

in the presence of:

 

 

 

 

 

 

 

 

 

 

Director

 

 

 

 

 

 

 

 

 

 

 

Director / Company Secretary

 

 

 

 

 

 

SIGNED AND DELIVERED AS A DEED BY

 

 

[INSERT NAME OF DIRECTOR/OFFICER]

 

 

in the presence of

 

 

 

 

 

 

 

 

 

 

[Name of Director/Officer]

 

 

 

 

 

 

Witness signature

 

 

 

 

 

 

 

 

Witness name

 

 

 

 

 

 

 

 

Witness address

 

 

 


Exhibit 10.2

 

Nabriva Therapeutics AG

 

Stock Option Plan 2007

 

I.

Introduction

2

 

 

 

II.

Structure of the Stock Option Plan

2

 

 

 

A.

Options

2

 

 

 

1.

Vesting

3

 

 

 

2.

Exercise Price

4

 

 

 

3.

Exercising vested options

5

 

 

 

4.

Rights and restrictions attached to vested options

6

 

 

 

B.

Termination of Employment or Board Position

6

 

 

 

1.

Good Leaver Events

6

 

 

 

2.

Bad Leaver Events

7

 

 

 

3.

Exercised options

8

 

 

 

4.

Accelerated Vesting

8

 

 

 

C.

Duration, Expiry, Amendments to and Termination of the Stock Option Plan

8

 

 

 

1.

Duration and Expiry

8

 

 

 

2.

Termination

9

 

 

 

D.

Future participants

9

 

 

 

E.

Risks

9

 

 

 

F.

Miscellaneous

10

 

 

 

1.

Stock Adjustments

10

 

 

 

2.

No business practice (“ Betriebliche Übung” )

11

 

 

 

3.

Taxes, duties and social contributions

11

 

 

 

4.

Notices

12

 

 

 

5.

Saving provisions

12

 

 

 

6.

English Version

12

 

 

 

7.

Governing law and jurisdiction

12

 



 

I. INTRODUCTION

 

On 12 September 2007 the Managing Board and the Supervisory Board of Nabriva Therapeutics Forschungs AG (“ Nabriva ” or the “ Company ”) resolved to implement a stock option plan for all employees ( for the avoidance of doubt including members of the Managing Board) being employed with the Company for an indefinite period of time at 28 September 2007 and selected members of the Supervisory Board of the Company and further participants (the “ Beneficiaries ”, see below Annex ./2) subject to the provisions as set forth herein (the “ Stock Option Plan ” or “ SOP ”).

 

When the conditions of the Stock Option Plan are met, options will be granted to the Beneficiaries. These options will grant the Beneficiaries the right to acquire Shares in Nabriva or otherwise settle the options under the conditions set forth herein. Nabriva believes that this Stock Option Plan enhances the commitment of the Beneficiaries to contribute to Nabriva’s success by allowing them to participate in the increase in the value of the Company.

 

The potential Beneficiaries have been personally informed about the Stock Option Plan. The provisions set forth herein regulate the Stock Option Plan in its entirety. If any of the information communicated to the potential participants of the SOP diverges from this SOP, the provisions of this SOP shall prevail.

 

Options pursuant to this SOP are neither granted as remuneration nor as bonus in exchange for the performance of Beneficiaries during a specific period. Rather, the participation in this SOP and the vesting of options pursuant to this SOP constitute a voluntary benefit of the Company. Following the nature of voluntary benefits these are solely granted to foster the motivation and solidarity of all Beneficiaries.

 

II. STRUCTURE OF THE STOCK OPTION PLAN

 

A.                         Options

 

The aggregate and overall number of options eligible to be granted and vested to all Beneficiaries under the Stock Option Plan shall not exceed 29,889 (the “ Overall Number of Options ”). The number of options eligible to be granted per Beneficiary is set out in Annex ./2 hereto. Notwithstanding the date and duration of their participation herein and without prejudice to the provisions of this Stock Option Plan, Beneficiaries shall not be entitled to (further) options under this Stock Option Plan once the Overall Number of Options are granted.

 

2



 

1.                           Vesting

 

The period in which granted options are vested in accordance with the SOP (“ Vesting Period ”) shall be four years. The Vesting Period shall commence on the date of participation of the Beneficiaries in this SOP (“ Date of Participation ”) as set out in Annex ./3 hereto, but in any event not before 28 September 2007. The total number of granted options eligible to be vested per Beneficiary is set out in Annex ./2 hereto.

 

(i)                                 Year 1

 

On the last day of the last calendar month of the first year of the Vesting Period following the Date of Participation, 25 % of the options eligible to be vested per Beneficiary shall be vested automatically with that Beneficiary.

 

(ii)                              Year 2

 

On the last day of the last calendar month of the second year of the Vesting Period following the Date of Participation, 25 % of the options eligible to be vested per Beneficiary shall be vested automatically with that Beneficiary.

 

(iii)                           Year 3 and Year 4

 

During the third and fourth year of the Vesting Period following the Date of Participation, the remaining 50 % of the options eligible to be vested per Beneficiary shall be vested with that Beneficiary on a monthly pro rata basis (i.e. 2.083 % per month). Options eligible to be vested for any given month in years three and four of the Vesting Period will be vested automatically on the last day of each calendar month.

 

Notwithstanding the above, regarding all Beneficiaries that have worked for the Company prior to their Date of Participation in the SOP, (i) 25 % of the options eligible to be vested per Beneficiary shall be vested automatically on the last day of the month marking the (first) anniversary of their employment with the Company following their Date of Participation and (ii) 25 % of the options eligible to be vested per Beneficiary shall be vested automatically on the last day of the month marking the following next anniversary of their employment with the Company. The remaining 50 % of the options shall be vested with that Beneficiary on a monthly pro rata basis (i.e. 2.083 % per month) as set forth in (iii) above.

 

3



 

Certain Beneficiaries that have worked for the Company for a minimum period of at least one year prior to their Date of Participation in the SOP (the “ Qualified Beneficiaries ”) shall be vested 25 % of the options eligible to be vested per Beneficiary under the SOP as set forth in Annex ./2 and ./3 immediately on the Date of Participation of the Qualified Beneficiaries. 25 % of the options eligible to be vested shall be vested on the last day of the month marking the anniversary of their employment with the Company following their Date of Participation, whereas anniversary of their employment with the Company always means February 1 if the Qualified Beneficiary started working for the Company before 1 February 2006. The remaining 50 % of the options shall be vested with that Beneficiary on a monthly pro rata basis (i.e. 2.083 % per month) as set forth in (iii) above.

 

The Company believes this will further enhance the Qualified Beneficiaries’ motivation and solidarity with Nabriva.

 

Options shall be vested to Beneficiaries taking maternity leave (“ Maternity Leave Employees ”) in accordance with this Clause II.A.1, provided that (i) options shall not be vested during the time the Maternity Leave Employee is on maternity leave and (ii) options shall only be vested when the Maternity Leave Employee has worked for Nabriva for a continuous period (such period calculated from the first day the Maternity Leave Employee resumes work after maternity leave) of at least (x) 12 months or (y) 1 month if the Maternity Leave Employee is participating in the third or fourth year of the Vesting Period pursuant to item (iii) in this Clause.

 

For the avoidance of doubt, options vested prior to the Maternity Leave Employee having taken maternity leave shall not be forfeited.

 

2.                           Exercise Price

 

The exercise price shall be determined by an Austrian Independent Certified Public Accountant ( Wirtschaftsprüfer ) appointed by the Company (“ Expert Evaluator ”) based on the fair market value of the Shares initially as of 31 July 2007, and thereafter as of 31 December of each financial year of the Company (“ Exercise Price Date ”) pursuant to the Gross Procedure of the Discounted Cash Flow Method based on the rules and guidelines of the Chamber of Public Accountants on the Company value ( KFS BW1 - Fachgutachten des Fachsenats für Betriebswirtschaft und Organisation des Instituts für Betriebswirtschaft, Steuerrecht und Organisation der Kammer der Wirtschaftstreuhänder über die Unternehmensbewertung ) (“ Exercise Price ”).

 

4



 

Subject to the provisions set forth herein, each vested option entitles a Beneficiary to acquire one Share at the Exercise Price. The Exercise Price so determined for the most recent Exercise Price Date prior to the participation of the employee shall apply to all vested options exercised by a Beneficiary under this SOP.

 

The Company shall pay for any costs arising in connection with the determination of the Exercise Price.

 

3.                           Exercising vested options

 

The exercise of a vested option is only permissible in case of a Liquidation Event or a Qualified Public Offering. The Beneficiaries are entitled to exercise the vested options from 28 September 2007 until 27 September 2017 (“ Exercise Period ”). Save for the case of a Liquidation Event the Beneficiaries are entitled to exercise vested options exclusively within a period commencing the day after the Company’s annual general meeting and ending six weeks after that day.

 

In order to exercise a vested option, the Beneficiary must notify the Company by submitting an exercise notice to the Company in the form of Annex ./4 (“ Exercise Notice ”) one week prior to the date he wishes to exercise the option as specified in the Exercise Notice.

 

In case of a Qualified Public Offering, the transfer of the shares to the Beneficiaries due to the exercise of options under this SOP is effected only upon completion of the Qualified Public Offering.

 

In case of a Liquidation Event, the Beneficiaries will — following their exercise of options — only receive a portion of the remainder, if any, of the proceeds from such Liquidation Event after satisfaction of the holders of certain preferred shares pursuant to liquidation preference agreements as in force at the date of exercise of options, whereas the Beneficiaries will participate in such remainder, if any, pro rata corresponding to their shareholding in the Company (in case Shares would have been transferred to the Beneficiaries); whereas the Company in case of a distributable remainder in its sole discretion may opt to provide the Beneficiaries with Shares in the Company rather than with cash amounts. A Beneficiary’s obligation to deposit the Exercise Price shall be subject to notification by the Company that a distributable remainder exists.

 

5



 

4.                           Rights and restrictions attached to vested options

 

The Beneficiaries shall not be entitled to transfer vested options, except to individuals by way of inheritance or bequest. For the avoidance of doubt, Beneficiaries shall also not be entitled to transfer vested options by virtue of bilateral legal transactions causa mortis with or without consideration.

 

The Beneficiaries shall not be entitled to grant rights to, encumber or dispose of vested options in any other manner (in particular pledge, transfer by way of security or derivative transactions having the same commercial effect).

 

Options do not entitle the Beneficiary to exercise any shareholder rights. The Beneficiary may only exercise shareholder rights if and to the extent it holds Shares.

 

In the event of a Bankruptcy of a Beneficiary, the options not yet exercised by such Beneficiary shall automatically be forfeited.

 

Any options not exercised by the end of the Exercise Period shall automatically and finally lapse and be forfeited.

 

B.                         Termination of Employment or Board Position

 

In case employment or board position of a Beneficiary is terminated, the following shall apply:

 

1.                           Good Leaver Events

 

If a Beneficiary’s service or employment relationship ends during the term of the SOP due to (and each of the following a “ Good Leaver Event ”)

 

 

(i)

retirement due to age or permanent disability ( Ausscheiden aufgrund Alters oder dauernder Arbeitsunfähigkeit );

 

 

 

 

(ii)

death;

 

 

 

 

(iii)

ordinary termination by maintaining the contractual or statutory periods and deadlines ( ordentliche Kündigung ) by the Company or the Beneficiary;

 

 

 

 

6



 

 

(iv)

justified premature resignation with immediate effect ( berechtigter vorzeitiger Austritt );

 

 

 

 

(v)

unjustified discharge with immediate effect ( ungerechtfertigte Entlassung );

 

 

 

 

(vi)

mutual termination ( einvernehmliche Auflösung );

 

 

 

 

(vii)

expiry of a Managing Board or Supervisory Board mandate ( Nichtverlängerung eines Mandats );

 

 

 

 

(viii)

premature revocation of a Managing Board or Supervisory Board mandate without good cause ( Abberufung ohne wichtigen Grund ); or

 

 

 

 

(ix)

resignation of a member of the Managing Board or Supervisor Board with good cause ( Rücktritt aus wichtigem Grund );

 

all rights and entitlements under the SOP to the options which have not been vested upon the occurrence of a Good Leaver Event shall be automatically forfeited. Options eligible to be vested to a Beneficiary in a fiscal year which are not actually vested in respect of such Beneficiary in that fiscal year shall not be available to that Beneficiary at any other time.

 

Beneficiaries with options vested but not exercised at the time of a Good Leaver Event shall retain such options and be entitled to exercise such options according to the provisions set forth herein.

 

2.                           Bad Leaver Events

 

If a Beneficiary’s service or employment relationship with the Company ends during the term of the SOP due to an event other than a Good Leaver Event (a “ Bad Leaver Event ”), all options of the Beneficiary vested but not exercised at the time a Bad Leaver Event occurs shall forfeit. The revocation of a member of the Managing Board pursuant to a vote of non confidence by the General Assembly shall not constitute a Bad Leaver Event as long as no reason for justified dismissal is set by the Beneficiary.

 

The Supervisory Board may within its discretion decide whether to grant to a Beneficiary advantages as from a Good Leaver event even though the end of a Beneficiary’s service or employment relationship constitutes a Bad Leaver Event as described in B.2. In case the Beneficiary concerned functions as a member of the Supervisory Board, the shareholders shall decide on the advantages granted to the Beneficiary as set forth above.

 

7



 

3.                           Exercised options

 

The termination of a service or an employment relationship with the Company shall have no effect on options that were exercised prior to the date of a declaration of termination of employment or board position.

 

4.                           Accelerated Vesting

 

In case a Liquidation Event occurs, 50% of the remaining options not yet vested with a Beneficiary at this point in time, shall vest with the Beneficiaries with immediate effect.

 

In case of unjustified termination of the Beneficiary by the Company or justified premature termination of employment by the Beneficiary (e.g. due to reduction in compensation, diminution of job responsibilities, permanent relocation of more than 50 kilometers) within one year after such Liquidation Event occurred, all remaining options of a Beneficiary not yet vested at this point in time shall vest with the Beneficiary with immediate effect.

 

The exercise of options vested pursuant to II.B.4 shall be subject to the provisions herein and in particular in II.A.3 except that the exercise period as defined under II.A.3. shall not apply.

 

C.                         Duration, Expiry, Amendments to and Termination of the Stock Option Plan

 

1.                           Duration and Expiry

 

The Stock Option Plan shall become effective on 28 September 2007.

 

Beneficiaries shall have the right to exercise vested (but non-exercised) options until 27 September 2017. Thereupon, the Stock Option Plan shall expire and all rights of the Beneficiaries under the Stock Option Plan shall terminate, in particular the right to exercise vested but non-exercised options.

 

8



 

2.                           Termination

 

The Company may terminate the SOP in relation to a Beneficiary for good cause if that Beneficiary breaches significant statutory or contractual obligations in connection with its service or employment relationship with the Company. Such good cause shall be a reason pursuant to sec 75 Austrian Stock Company Act ( Aktiengesetz ) for members of the Managing Board and the Supervisory Board of the Company and pursuant to sec 27 Austrian Employees Act ( Angestelltengesetz ) for employees of the Company whereby the revocation of a member of the Managing Board pursuant to a vote of non confidence by the General Assembly shall not constitute such good cause in the meaning of this paragraph as long as no reason for justified dismissal is set by the Beneficiary. To the extent the members of the Managing Board are affected, the Supervisory Board shall exercise such termination right. To the extent members of the Supervisory Board are affected, the Company’s shareholders shall be competent to resolve upon such termination by simple majority.

 

D.                         Future participants

 

The Managing Board may at its sole discretion decide on the conditions for the inclusion of future participants other than those listed in Annex ./2 including but not limited to employees of the Company in accordance with the terms of this Stock Option Plan (“ Future Participants ”). The Supervisory Board shall have such right of decision in relation to Future Participants which are members of the Managing Board. The shareholders shall have such right of decision in relation to Future Participants which are members of the Supervisory Board.

 

E.                         Risks

 

Neither the Company nor any shareholder of the Company (or any of their officers, employees or consultants)

 

 

(i)

assumes any responsibility or liability for the development of the value of the market price of the Shares;

 

 

 

 

(ii)

warrant, assure or guarantee any increase in value of the Shares, in particular it is neither warranted, assured or guaranteed that a Beneficiary will be able to sell his participation in the Company with a profit in the future nor that no loss will be incurred;

 

 

 

 

(iii)

warrant, assure or guarantee a profit of a Beneficiary from this Stock Option Plan.

 

9



 

Each Beneficiary declares with his participation in the SOP that the participation is voluntary. Each Beneficiary is aware of the fact that he alone bears the risk of a decrease in or total loss of value of his investments. Each Beneficiary accepts the offer to participate in the Stock Option Plan at his own risk and assumes any liability relating thereto.

 

Each Beneficiary is responsible for obtaining legal and tax advice before participating in the SOP and for evaluating the tax effects connected with the Stock Option Plan. Each Beneficiary accepts and declares that he has not been advised by or on behalf of the Company with respect to his participation in the Stock Option Plan (in particular regarding legal and tax issues of the participation).

 

The Company declares to undertake the best efforts for a risk minimal and tax efficient settlement of this SOP.

 

F.                          Miscellaneous

 

1.                           Stock Adjustments

 

If, during the term of the SOP, changes to the capital of the Company or restructuring measures have an effect on the capital of the Company, such as a stock split or reverse split of stocks, (together “ Stock Adjustments ”) which result in a change in the value of the options, the Company is entitled to adjust the price or the amount of the options respectively, to the extent necessary to compensate changes in value (but not a dilution of shareholding) resulting from any Stock Adjustments. For the avoidance of doubt, this Clause shall not apply to measures, such as future financing rounds, in which new shareholders of the Company are introduced.

 

The Supervisory Board decides on an adjustment based on a proposal by the Managing Board. After execution of the Stock Adjustments the total value of the granted options shall equal the total value of the options before execution of such Stock Adjustments. The Company will inform the Beneficiaries about the Stock Adjustment and the effective date of the Stock Adjustment.

 

10



 

2.                           No business practice (“ Betriebliche Übung )

 

The granting of options and the implementation of the SOP is the free and discretionary choice of the Company, constitutes a voluntary benefit and shall not give rise to any legal claim by a Beneficiary for the future, not even in the case of repeated granting.

 

Beneficiaries of the SOP do not have a right for the introduction of another option plan or any vesting of options in addition to those under the Stock Option Plan, even if the Company implements any other option plan or vests further options under any other option plan.

 

Vested options under this Stock Option Plan do not affect the calculation of severance, premiums, royalties, pension plans or any other remuneration of the Beneficiary.

 

3.                           Taxes, duties and social contributions

 

All taxes, social contributions, further duties and costs accrued by the Beneficiary in connection with its participation in the SOP or due to the distribution of profits shall be borne by each Beneficiary. Each Beneficiary is obliged to pay taxes relating to the respective options granted/exercised under the SOP to the competent tax authorities, also in the course of tax audits or any other procedures. Each Beneficiary shall fully indemnify the Company in respect of all such liabilities and obligations against tax authorities.

 

The employer of the Beneficiary is entitled, if required by statutory law, to withhold wage tax or any other taxes or duties or social contributions to be paid by the Beneficiary. This applies even after termination of the employment of a Beneficiary with the Company, if the vested options granted are non-lapsable but not yet exercisable. The Company is entitled to demand the full cooperation of the Beneficiary even after his leave with respect to the withholding of taxes, social contributions, other duties and costs in connection with this Stock Option Plan. The Beneficiary undertakes to co-operate.

 

Withholdings mentioned above do not release the Beneficiary from his responsibility and obligation to pay all taxes, social contributions, further duties and costs being due and accruing in connection with his participation in the SOP or in connection with the distribution of profits.

 

11



 

4.                           Notices

 

Notifications to the Company with respect to the terms of the Stock Option Plan shall only be made to:

 

Nabriva Therapeutics AG

Corporate Human Resources

 

fax:

+43 1 866 59 785

email:

ralf.schmid@nabriva.com

 

Notifications by the Company of the Beneficiary relating to the SOP shall be made in writing (including email or fax) to each Beneficiary to the respective Beneficiary’s address last disclosed to the Company.

 

5.                           Saving provisions

 

If any provision of this SOP in full or in part is or becomes invalid, this shall not affect the validity of all other provisions or the valid part of an invalid provision. To the extent legally possible, an agreement shall be made replacing the invalid provision by a provision which best meets the intent of the terms of the SOP. The same applies to loopholes of the terms of the SOP, which may arise in the course of implementation of the terms of the SOP.

 

6.                           English Version

 

This SOP is concluded in a German and English version. For disputes pursuant to this SOP, the English version shall prevail.

 

7.                           Governing law and jurisdiction

 

The terms of the SOP, its interpretation and all rights and obligations arising there from shall be governed by Austrian law, except for international private law and the UN Convention on Contracts for the International Sales of Goods. The courts of Vienna, Austria, shall, to the extent legally possible, have exclusive jurisdiction regarding all claims in connection with the SOP and the terms of the SOP.

 

Annex:

 

./1

Definitions

 

 

./2

List of eligible options per Beneficiary

 

 

./3

Accession Statement

 

 

./4

Exercise Notice

 

12



 

Annex ./1

 

I. Definitions

 

Bad Leaver Event

 

has the meaning ascribed thereto in Clause II.C.2 (“ Bad Leaver Events ”).

 

 

 

Bankruptcy

 

means the initiation of bankruptcy proceedings in regard to the assets of a Beneficiary, the dismissal of an application for bankruptcy due to a lack of assets or the initiation of private bankruptcy proceedings pursuant to secs. 181 et seq. of the Austrian Bankruptcy Code ( “KO” ) or any equivalent rule in any other relevant jurisdiction.

 

 

 

Beneficiaries

 

are all employees ( for the avoidance of doubt including members of the Managing Board) being employed with the Company for an indefinite period of time at 28 September 2007 and selected members of the Supervisory Board of the Company and further participants (see below Annex ./2) subject to the provisions as set forth herein under this SOP.

 

 

 

Company

 

Nabriva Therapeutics AG and its legal successors.

 

 

 

Date of Participation

 

means the date of entry of Beneficiaries in this SOP.

 

 

 

Exercise Notice

 

has the meaning ascribed thereto in Clause II.A.3 (“ Exercising vested options ”).

 

 

 

Exercise Period

 

has the meaning ascribed thereto in Clause II.A.3 (“ Exercising vested options ”).

 

 

 

Exercise Price

 

has the meaning ascribed thereto in Clause II.A.2 (“ Exercise Price ”).

 

 

 

Exercise Price Date

 

has the meaning ascribed thereto in Clause II.A.2 ( “Exercise Price” ).

 

 

 

Expert Evaluator

 

has the meaning ascribed thereto in Clause II.A.2 (“ Exercise Price ”).

 

13



 

Future Participants:

 

has the meaning ascribed thereto in Clause II.D. (“ Future Participants ”).

 

 

 

Good Leaver Event

 

has the meaning ascribed thereto in Clause II.C.1 (“ Good Leaver Events ”).

 

 

 

Liquidation Event

 

means (i) an exclusive license of or the sale or other disposal of 50 % or more of the assets of the Company, (ii) a sale or other disposal (for the avoidance of doubt, the term disposal shall not include a pledge) of 50 % or more of the shares of the Company, (iii) a merger of the Company with any third party, or (iv) a consolidation, liquidation, winding up or any other form of a dissolution of the Company.

 

 

 

Managing Board

 

means the managing board ( Vorstand ) of the Company.

 

 

 

Maternity Leave Employees

 

has the meaning ascribed thereto in Clause II.A (“ Options ”).

 

 

 

Overall Number of Options

 

has the meaning ascribed thereto in Clause II.A (“ Options ”).

 

 

 

Qualified Beneficiary

 

has the meaning ascribed thereto in Clause II.A (“ Options ”).

 

 

 

Qualified Public Offering

 

means a qualified public offering of the shares of the Company at a fully diluted pre-money valuation of at least EUR 120 million with gross proceeds to the Company of not less than EUR 40 million.

 

 

 

Shares

 

means the common shares of the Company issued from time to time and each a “Share”.

 

 

 

SOP

 

has the meaning ascribed thereto in Clause I (“ Introduction ”).

 

 

 

Stock Option Plan

 

has the meaning ascribed thereto in Clause I (“ Introduction ”).

 

14



 

Supervisory Board

 

means the supervisory board ( Aufsichtsrat ) of the Company.

 

 

 

Vesting Period

 

has the meaning ascribed thereto in Clause II.A.1 (“ Vesting ”).

 

15



 

Annex ./2

 

Eligible Options per Beneficiary

 

Annex:

 

./

Option Distribution Table

 

16



 

Annex ./3

 

Form of Accession Statement

 

To:

Ms / Mr [ · ],

[address]

 

REF: SOP / Accession Statement

 

Dear Ms / Mr [ · ],

 

You will participate in this SOP with effect as of [ · ] (Participation Date ).

 

As Participant in the SOP you will be vested options to acquire shares in the Company pursuant to this SOP in the amounts as set forth in the Vesting Table attached.

 

Nabriva Therapeutics Forschungs AG:

DATE:

 

PARTICIPANT:

DATE:

 

Annex:

 

./

Vesting Table

 

17



 

Annex ./4

 

Form of Exercise Notice

 

To: Nabriva Therapeutics Forschungs AG

Corporate Human Resources

 

REF: SOP / Exercise Notice

 

Dear Sirs,

 

I am a participant in the SOP. Capitalized terms not otherwise defined herein shall have the meaning assigned to such term in the SOP. This is an Exercise Notice.

 

I hereby irrevocably declare to exercise [ · ] vested options granted to me [on · ]

 

 

o

When exercising above number of options, I wish to acquire [ · ] Shares as determined in the vesting table attached to my Accession Statement at the Exercise Price per Share. Such Shares shall be delivered to my securities account no. [ · ] with [ · ] against (i) signing by me of the subscription declaration required pursuant to § 165 Austrian Stock Corporation Act and (ii) payment in cash by me of the Exercise Price for each Share. I acknowledge that my employer will withhold taxes, duties or social contributions, if any, as applicable before determining the number of Shares to be delivered.

 

 

 

 

o

Whereas in the case of a Liquidation Event, (i) I acknowledge that in case of a distributable remainder the Company — in consideration of the Exercise Price — in its sole discretion may opt to provide me with Shares in the Company rather than with the cash amounts attributable to me according to the SOP, (ii) I shall deposit the Exercise Price only upon notification by the Company that a distributable remainder exists, (iii) upon such notification, I shall deposit the Exercise Price within seven (7) business days.

 

I acknowledge that options have not been granted as remuneration or as a bonus for job performance but rather as a voluntary benefit to encourage motivation and solidarity with the Company and that I have no entitlement to any future comparable benefits.

 

NAME:

DATE:

 

18



 

ADDENDUM

 

with regard to the

 

Nabriva Therapeutics AG’s

 

Stock Option Plan

 

dated 12 September 2007

 



 

PREAMBLE

 

WHEREAS, on 12 September 2007 the Managing Board and the Supervisory Board of Nabriva Therapeutics AG ( Nabriva or the Company ) resolved to implement a stock option plan for all employees being employed by the Company for an indefinite period of time at 28 September 2007 and selected members of the Supervisory Board of the Company and further participants (the Beneficiaries ), a copy of which is attached hereto as Schedule 1 (the Stock Option Plan or SOP );

 

WHEREAS, on 17 September 2009 the shareholders of the Company resolved to amend the SOP and thus, the Company is interested in amending the Stock Option Plan according to such shareholders’ resolution through this addendum to the SOP (the Addendum ).

 

1.                    I NTERPRETATION

 

1.1             Definitions

 

Unless explicitly stated otherwise herein, all capitalized terms used in this Addendum shall have the meaning assigned to them in the SOP.

 

1.2             Supplemental

 

Except as explicitly provided herein, the SOP shall remain in full force and effect, and this Addendum and the SOP shall be read and construed as one document.

 

2.                    A MENDMENTS TO THE SOP

 

Section II. A. 3. of the SOP is replaced so that it reads as follows:

 

“Exercising vested options

 

The exercise of a vested option is only permissible in case of a Liquidation Event or a Qualified Public Offering. The Beneficiaries are entitled to exercise the vested options from 28 September 2007 until 27 September 2017 (the Exercise Period ). Save for the case of a Liquidation Event the Beneficiaries are entitled to exercise vested options exclusively within a period commencing the day after the Company’s annual general meeting and ending six weeks after that day.

 

In order to exercise a vested option, the Beneficiary must notify the Company by submitting an exercise notice to the Company in the form of Annex ./4 ( Exercise Notice ) one week prior to the date he wishes to exercise the option as specified in the Exercise Notice.

 

In case of a Qualified Public Offering, the transfer of the shares to the Beneficiaries due to the exercise of options under this SOP is effected only upon completion of the Qualified Public Offering.

 

In case of a Liquidation Event, the Beneficiaries will — following their exercise of options — only receive a portion of the remainder, if any, of the proceeds from such

 

2



 

Liquidation Event after satisfaction of the holders of certain preferred shares pursuant to liquidation preference agreements as in force at the date of exercise of options, whereas the Beneficiaries will participate in such remainder, if any, pro rata corresponding to their shareholding in the Company (in case Shares would have been transferred to the Beneficiaries); whereas the Company in case of a distributable remainder in its sole discretion may opt to provide the Beneficiaries with Shares in the Company rather than with cash amounts. A Beneficiary’s obligation to deposit the Exercise Price shall be subject to notification by the Company that a distributable remainder exists.

 

Notwithstanding the foregoing, the executives listed in Schedule ./2 hereto of the Company shall be entitled to exercise their respective vested option at any time prior to 31 December 2009 by giving an Exercise Notice regardless of whether a Liquidation Event or a Qualified Public Offering has occurred (the Preferred Vested Option Right ). In case such Preferred Vested Option Right is exercised, such executive’s receipt of the Shares shall be subject to the executive’s accession to the Shareholders Agreement, then in force, entered into between the shareholders of the Company, and thus, the executive shall become a Party thereto with all rights and obligations entailed therein. Such Preferred Vested Option Right is granted to the above-mentioned executives only because of their valuable contribution and commitment to the Company and as an additional incentive to further enhance the forthcoming the business thereof.

 

3



 

Schedule ./2

 

Beneficiaries - Preferred Vested Option Right

 

Dr. Rodger Novak - Leberstrasse 20, A-1110 Wien - geb. 22.06.1967 - Mitglied des Vorstandes

Ralf Schmid - Leberstrasse 20, A-1110 Wien - geb. 12.04.1967 - Mitglied des Vorstandes

Dr. William Prince - Leberstrasse 20, A-1110 Wien - geb. 06.01.1946 - Mitglied des Vorstandes

 



 

SECOND ADDENDUM

 

with regard to the

 

Nabriva Therapeutics AG’s

 

Stock Option Plan

 

dated 12 September 2007

 



 

PREAMBLE

 

WHEREAS, on 12 September 2007 the Managing Board and the Supervisory Board of Nabriva Therapeutics AG ( Nabriva or the Company ) resolved to implement a stock option plan for all employees being employed by the Company for an indefinite period of time at 28 September 2007 and selected members of the Supervisory Board of the Company and further participants (the Beneficiaries ), a copy of which is attached hereto as Schedule 1 (the Stock Option Plan or SOP );

 

WHEREAS, on 17 September 2009 the shareholders of the Company resolved to amend the SOP and thus, the Stock Option Plan was amended through the Addendum to the SOP dated 12 September 2007 regarding the implementation of preferred vested option rights for selected executives, a copy of which is attached hereto as Schedule 2 (the First Addendum ).

 

WHEREAS, on 7 May 2010 the shareholders of the Company resolved to further amend the SOP according to the shareholders’ resolution through this second addendum to the SOP (the Second Addendum ).

 

1.                    I NTERPRETATION

 

1.1             Definitions

 

Unless explicitly stated otherwise herein, all capitalized terms used in this Second Addendum shall have the meaning assigned to them in the SOP.

 

1.2             Supplemental

 

Except as explicitly provided herein, the SOP and the First Addendum shall remain in full force and effect, and the First Addendum, this Second Addendum and the SOP shall be read and construed as one document.

 

2.                    A MENDMENTS TO THE SOP

 

Section II. A.1 (“ Vesting ”) and A.3 (“ Exercising vested options ”) of the SOP is replaced so that it reads as follows:

 

“1. Vesting

 

The period in which granted options are vested in accordance with the SOP (“ Vesting Period ”) shall be four years. The Vesting Period shall commence on the date of participation of the Beneficiaries in this SOP (“ Date of Participation ”) as set out in Annex ./3 hereto, but in any event not before 28 September 2007. The total number of granted options eligible to be vested per Beneficiary is set out in Annex ./2 hereto.

 

2



 

(i) Year 1

 

On the last day of the last calendar month of the first year of the Vesting Period following the Date of Participation, 25 % of the options eligible to be vested per Beneficiary shall be vested automatically with that Beneficiary.

 

(ii) Year 2

 

On the last day of the last calendar month of the second year of the Vesting Period following the Date of Participation, 25 % of the options eligible to be vested per Beneficiary shall be vested automatically with that Beneficiary.

 

(iii) Year 3 and Year 4

 

During the third and fourth year of the Vesting Period following the Date of Participation, the remaining 50 % of the options eligible to be vested per Beneficiary shall be vested with that Beneficiary on a monthly pro rata basis (i.e. 2.083 % per month). Options eligible to be vested for any given month in years three and four of the Vesting Period will be vested automatically on the last day of each calendar month.

 

Notwithstanding the above, regarding all Beneficiaries that have worked for the Company prior to their Date of Participation in the SOP, (i) 25 % of the options eligible to be vested per Beneficiary shall be vested automatically on the last day of the month marking the (first) anniversary of their employment with the Company following their Date of Participation and (ii) 25 % of the options eligible to be vested per Beneficiary shall be vested automatically on the last day of the month marking the following next anniversary of their employment with the Company. The remaining 50 % of the options shall be vested with that Beneficiary on a monthly pro rata basis (i.e. 2.083 % per month) as set forth in (iii) above.

 

Certain Beneficiaries that have worked for the Company for a minimum period of at least one year prior to their Date of Participation in the SOP (the “ Qualified Beneficiaries ”) shall be vested 25 % of the options eligible to be vested per Beneficiary under the SOP as set forth in Annex ./2 and ./3 immediately on the Date of Participation of the Qualified Beneficiaries. 25 % of the options eligible to be vested shall be vested on the last day of the month marking the anniversary of their employment with the Company following their Date of Participation, whereas anniversary of their employment with the Company always means February 1 if the Qualified Beneficiary started working for the Company before 1 February 2006. The remaining 50 % of the options shall be vested with that Beneficiary on a monthly pro rata basis (i.e. 2.083 % per month) as set forth in (iii) above.

 

The Company believes this will further enhance the Qualified Beneficiaries’ motivation and solidarity with Nabriva.

 

Options shall be vested to Beneficiaries taking maternity leave (“ Maternity Leave Employees ”) in accordance with this Clause II.A. 1, provided that (i) options shall not be vested during the time the Maternity Leave Employee is on maternity leave and (ii) options shall only be vested when the Maternity Leave Employee has worked for Nabriva for a continuous period (such period calculated from the first day the Maternity Leave Employee resumes work after maternity leave) of at least (x) 12 months or (y) 1 month if the Maternity Leave Employee is participating in the third or fourth year of the Vesting Period pursuant to item (iii) in this Clause.

 

3



 

For the avoidance of doubt, options vested prior to the Maternity Leave Employee having taken maternity leave shall not be forfeited.

 

Notwithstanding the foregoing, the first 25% of the options eligible to be vested with the beneficiary listed in Schedule 3 after the second year in accordance with (i) above shall be vested automatically with that beneficiary listed in Schedule 3 on 7 May 2010.”

 

“3. Exercising vested options

 

The exercise of a vested option is only permissible in case of a Liquidation Event or a Qualified Public Offering. The Beneficiaries are entitled to exercise the vested options from 28 September 2007 until 27 September 2017 (the Exercise Period ). Save for the case of a Liquidation Event the Beneficiaries are entitled to exercise vested options exclusively within a period commencing the day after the Company’s annual general meeting and ending six weeks after that day.

 

In order to exercise a vested option, the Beneficiary must notify the Company by submitting an exercise notice to the Company in the form of Annex ./4 ( Exercise Notice ) one week prior to the date he wishes to exercise the option as specified in the Exercise Notice.

 

In case of a Qualified Public Offering, the transfer of the shares to the Beneficiaries due to the exercise of options under this SOP is effected only upon completion of the Qualified Public Offering.

 

In case of a Liquidation Event, the Beneficiaries will — following their exercise of options — only receive a portion of the remainder, if any, of the proceeds from such Liquidation Event after satisfaction of the holders of certain preferred shares pursuant to liquidation preference agreements as in force at the date of exercise of options, whereas the Beneficiaries will participate in such remainder, if any, pro rata corresponding to their shareholding in the Company (in case Shares would have been transferred to the Beneficiaries); whereas the Company in case of a distributable remainder in its sole discretion may opt to provide the Beneficiaries with Shares in the Company rather than with cash amounts. A Beneficiary’s obligation to deposit the Exercise Price shall be subject to notification by the Company that a distributable remainder exists.

 

Notwithstanding the foregoing, the executives listed in Schedule 2 hereto shall be entitled to exercise their respective vested option at any time prior to 31 December 2009 by giving an Exercise Notice regardless of whether a Liquidation Event or a Qualified Public Offering has occurred. Furthermore, the executive listed in Schedule 3 hereto shall be entitled to exercise his Preferred Vested Option Right at any time after the resolution of the shareholders dated 7 May 2010 but prior to 31 December 2010] by giving an Exercise Notice regardless of whether a Liquidation Event or a Qualified Public Offering has occurred (each a Preferred Vested Option Right ).

 

4



 

In case such Preferred Vested Option Right is exercised, such executive’s receipt of the Shares shall be subject to the executive’s accession to the Shareholders Agreement, then in force, entered into between the shareholders of the Company, and thus, the executive shall become a Party thereto with all rights and obligations entailed therein. The Preferred Vested Option Rights are granted to the abovementioned executives only because of their valuable contribution and commitment to the Company and as an additional incentive to further enhance the forthcoming the business thereof.

 

5



 

Schedule ./2

 

Beneficiaries - Preferred Vested Option Right

 

Dr. Rodger Novak - Leberstrasse 20, A-1110 Wien - geb. 22.06.1967 - Mitglied des Vorstandes

Ralf Schmid - Leberstrasse 20, A-1110 Wien - geb. 12.04.1967 - Mitglied des Vorstandes

Dr. William Prince - Leberstrasse 20, A-1110 Wien - geb. 06.01.1946 - Mitglied des Vorstandes

 



 

Schedule ./3

 

Beneficiaries - Preferred Vested Option Right

 

Dr. William Prince - Leberstrasse 20, A-1110 Wien - geb. 06.01.1946 - Mitglied des Vorstandes

 



 

THIRD ADDENDUM

 

with regard to the

 

Nabriva Therapeutics AG’s

 

Stock Option Plan

 

dated 12 September 2007

 



 

PREAMBLE

 

WHEREAS, on 12 September 2007, the Management Board and the Supervisory Board of Nabriva Therapeutics AG ( Nabriva or the Company ) resolved to implement a stock option plan for all employees being employed by the Company for an indefinite period of time at 28 September 2007 and selected members of the Supervisory Board of the Company and further participants (the Beneficiaries ), a copy of which is attached hereto as Schedule 1 (the Stock Option Plan or SOP );

 

WHEREAS, on 17 September 2009, the shareholders of the Company resolved to amend the SOP and thus, the SOP was amended through the Addendum to the SOP dated 12 September 2007 regarding the implementation of preferred vested option rights for selected executives, a copy of which is attached hereto as Schedule 2 (the First Addendum );

 

WHEREAS, on 7 May 2010, the shareholders of the Company resolved to further amend the SOP and thus, the SOP was amended through the Addendum to the SOP dated 12 September 2007 regarding the implementation of preferred vested option rights for selected executives, a copy of which is attached hereto as Schedule 3 (the Second Addendum );

 

WHEREAS, on 30 June 2015, the shareholders of the Company resolved to further amend the SOP according to the shareholder’s resolution through this third addendum to the SOP (the Third Addendum );

 

1.                    I NTERPRETATION

 

1.1             Definitions

 

Unless explicitly stated otherwise herein, all capitalized terms used in this Third Addendum shall have the meaning assigned to them in the SOP.

 

1.2             Supplemental

 

Except as explicitly provided herein, the SOP, the First Addendum and the Second Addendum shall remain in full force and effect, and the SOP, the First Addendum, the Second Addendum and this Third Addendum shall be read and construed as one document.

 

2.                    A MENDMENTS TO THE SOP

 

2.1             Amendment to Section II. A.3

 

The first three paragraphs of Section II. A.3 (“ Exercising vested options ”) of the SOP, as amended by the First Addendum and further amended by the Second Addendum, shall be deleted and replaced in their entirety by the following:

 

The Beneficiaries are entitled to exercise the vested options from 28 September 2007 until 27 September 2017 (the Term ). Unless otherwise specifically permitted in the Accession Statement as set forth in Annex ./3 or resolved upon by the Management Board with the approval of the Supervisory Board, the exercise of a vested option is only permissible in case of a Liquidation Event or following an initial public offering occurring during the Term, regardless of whether or not the Beneficiary is then providing services to the Company. In the case of a Liquidation Event occurring prior to an initial public offering of the Company, the Beneficiaries are entitled to exercise their vested options, taking into account any

 



 

vesting acceleration provided for under II.B.4 hereof, within the six-week period commencing the day after notification of all Beneficiaries of the upcoming Liquidation Event; provided that, if the acquiring or succeeding corporation (or an affiliate thereof) assumes any options in the Liquidation Event, such assumed options may be exercised, to the extent vested, in accordance with their terms and II. B.4 hereof, at any time during the remainder of the Term while the Beneficiary is providing services to the acquiring or succeeding corporation (or an affiliate thereof) and within the three-month period following a termination of the Beneficiary’s services to such entity due to a Good Leaver Event. In the case of an initial public offering, the Beneficiaries are entitled to exercise their vested options at any time, following such offering, during the remainder of the Term. The period during which an option may be exercised is the Exercise Period .

 

In order to exercise a vested option, the Beneficiary must notify the Company by submitting an exercise notice to the Company in the form of Annex ./4 (the Exercise Notice ) one week (or such shorter period as is permitted by the Company) prior to the date he wishes to exercise the option as specified in the Exercise Notice.

 

2.2             Amendment to Section II. B.4

 

The last paragraph of Section II. B.4 shall be deleted in its entirety.

 

2.3             Amendments to Annex ./1

 

(1)               The following new definition shall be added to Annex ./1 I. Definitions:

 

Term has the meaning ascribed thereto in Clause II.A.3 (“ Exercising vested options ”).

 

(2) The definition of “Qualified Public Offering” shall be deleted in its entirety from Annex ./1 I. Definitions. (For the avoidance of doubt, any remaining references to “Qualified Public Offering” in the SOP, or the First Addendum or Second Addendum thereto, shall be read to mean “initial public offering”.)

 



 

FOURTH ADDENDUM

with regard to

 

Nabriva Therapeutics AG’s Stock Option
Plan

 

dated 12 September 2007

 



 

PREAMBLE

 

WHEREAS, on 12 September 2007, the Management Board and the Supervisory Board of Nabriva Therapeutics AG (Nabriva or the Company) resolved to implement a stock option plan for all employees being employed by the Company for an indefinite period of time at 28 September 2007 and selected members of the Supervisory Board of the Company and further participants (the Beneficiaries), (the Stock Option Plan or SOP);

 

WHEREAS, on 17 September 2009, the shareholders of the Company resolved to amend the SOP and thus, the SOP was amended through an Addendum to the SOP, (the First Addendum);

 

WHEREAS, on 7 May 2010, the shareholders of the Company resolved to further amend the SOP and thus, the SOP was amended through a second Addendum to the SOP, (the Second Addendum);

 

WHEREAS, on 30 June 2015, the shareholders of the Company resolved to further amend the SOP according to the shareholder’s resolution through a third addendum to the SOP, (the Third Addendum);

 

WHEREAS on or around 13 and 14 April 2017, the Supervisory Board and the Management Board resolved to further amend the SOP (the Fourth Addendum) such amendments as are set out in this Fourth Addendum to be conditional on completion of the proposed exchange of Common Shares and ADS’s on the Company for Nabriva Therapeutics plc Ordinary Shares.

 

1.                             INTERPRETATION

 

1.1.                   Definitions

 

Unless explicitly stated otherwise herein, all capitalized terms used in this Fourth Addendum shall have the meaning assigned to them in the SOP.

 

1.2.                   Supplemental

 

Except as explicitly provided herein, the SOP, the First Addendum Second Addendum and the Third Addendum, shall remain in full force and effect, and the SOP, the First Addendum, the Second Addendum, the Third Addendum and this Fourth Addendum shall be read and construed as one document.

 

2.                             AMENDMENTS TO THE SOP

 

2.1.                   Amendment to Section II.A.2

 

2.1.1.                   After the reference to (“Exercise Price”) at the end of the first paragraph of Section II.A.2, the following words shall be included:

 

“provided however that in all cases the Exercise Price paid is not less than the nominal value of a Share”.

 

The following language shall be inserted at the end of the third paragraph of Section II.A.2:

 

“subject to compliance with Irish law”.

 

2.2.                Amendment to Section II.A.3

 

The following paragraph shall be included at the end of Section II.A.3

 

In order to exercise a vested option, a Beneficiary must pay the applicable amount of the Exercise Price for the Shares by one of the following means in such manner and form as the Administrator may require from

 



 

time to time, with such payment option(s) to be determined in the sole and absolute discretion of the Administrator and as specifically set forth in the applicable Accession Statement:

 

(i)                   delivery of cash, certified or cashier’s check, money order or other cash equivalent acceptable to the Company in its discretion;

 

(ii)                a broker-assisted cashless exercise in accordance with Regulation T of the Board of Governors of the Federal Reserve System through a brokerage firm designated or approved by the Company;

 

(iii)             subject to such limits as the Company may impose from time to time, tender (via actual delivery or attestation) to the Company of other Shares of the Company which have a Fair Market Value on the date of tender equal to the Exercise Price;

 

(iv)            subject to such limits as the Company may impose from time to time, net share settlement;

 

(v)               any other method approved by the Company; or

 

(vi)            any combination of the foregoing.

 

Save that in respect of Beneficiaries who are not employees or executive directors of the Group, only the methods at 3.5 (i) and 3.5 (ii) may be utilised.

 

2.3.                   Amendment to Section II.B.1

 

The references in paragraph 1 (Good Leaver Events), subsections vii, viii and ix to “Management Board” or “Supervisory Board” shall be replaced by reference to “Board”.

 

2.4.                   Amendment to Section II.B.2

 

The entirety of Section II B.2 shall be deleted and replaced in its entirety by the following:

 

If a Beneficiary’s service or employment relationship with the Group ends during the term of the SOP due to an event other than a Good Leaver Event (a “Bad Leaver Event”), all options of the Beneficiary vested but not exercised at the time a Bad Leaver Event occurs shall forfeit and the SOP may be terminated in respect of that Beneficiary. In the event that a Director is not re-elected to the Board at an annual general meeting, this shall not constitute a Bad Leaver Event, except for cases where the non-re-election is justified by the behaviour of the Director.

 

The Committee may within its discretion decide whether to grant to a Beneficiary advantages as from a Good Leaver event even though the end of a Beneficiary’s service or employment relationship constitutes a Bad Leaver Event as described in B.2.

 

2.5.                   Amendment to Section II.C.2

 

The entirety of the section entitled “Termination” shall be deleted.

 

2.6.                   Amendment to Section II.D

 

The entirety of Section II D shall be deleted and replaced by the following:

 

The Committee may at its sole discretion decide on the conditions for the inclusion of future participants other than those listed in Annex ./2 including but not limited to employees of the Company in accordance with the terms of this Stock Option Plan (“Future Participants”). The Committee shall have such right of decision in relation to Future Participants which are members of the Board.

 



 

2.7.                   Amendment to Section II.F.1

 

The second paragraph of Section II F.1 (“Stock Adjustments”) shall be amended so that the reference to “Supervisory Board” is deleted and replaced with reference to “Board” and the reference to “Management Board” is deleted and replace with reference to “Committee”

 

2.8.                   Amendment to Section II.F.4

 

The notification contact details contained in paragraph 4 will ne amended as follows:

Nabriva Therapeutics AG

Mihovil Spoljaric

Email: mihovil.spoljaric@nabriva.com

 

2.9.                   Amendment to Section II.F.7

 

The provisions of the paragraph entitled “Governing law and Jurisdiction” shall be deleted and replaced in its entirety by the following:

 

The terms of the SOP, its interpretation and all rights and obligations arising there from shall be governed by Irish law. The courts of Ireland shall, to the extent legally possible, have exclusive jurisdiction regarding all claims in connection with the SOP and the terms of the SOP.

 

2.10.            Amendments to Annex ./1 I Definitions

 

The following new definitions shall be added Annex ./1 “Definitions”

 

Board                                                 means the board of directors for the time being of the Company or the directors present at a duly convened meeting of the board of the Company at which a quorum is present or a duly constituted committee of the Board.

 

Committee                      means a duly constituted committee of the Board constituted to consider and review the remuneration and compensation of directors and employees of the Group.

 

Group                                                 means the Company and its Subsidiaries.

 

Subsidiary                          means any company which is, for the time being, a subsidiary of the Company within the meaning of Section 7 of the Companies Act, 2014

 

The definition of “Bankruptcy” shall be amended as follows:

 

Bankruptcy                  means the initiation of bankruptcy proceedings in regard to the assets of a Beneficiary, the dismissal of an application for bankruptcy due to a lack of assets or the initiation of private bankruptcy proceedings pursuant to applicable law in the relevant jurisdiction.

 

The definition of “Beneficiaries” shall be amended as follows:

 

Beneficiaries             are all employees (for the avoidance of doubt including Members of the Board) being employed with the Company for an indefinite period of time at 28 September 2007 and further participants (see below Annex ./2) subject to the provisions as set forth herein under this SOP.

 

The definition of “Company” shall be amended as follows:

 

Company:                        means Nabriva Therapeutics plc and its legal successors and, except where the context otherwise requires, the Company’s present or future parent or subsidiary corporations as defined in Sections 424(e) or (f) of the Internal Revenue Code and any other business

 



 

venture (including, without limitation, joint venture or limited liability company) in which the Company has a controlling interest, as determined by the Management Board.

 

The definition of Shares shall be amended as follows:

 

Shares                                               means the Ordinary Shares of the Company issued from time to time and each a “Share”.

 



 

2.11.            Amendment to Annex 3 — Form of Accession Statement

 

To:

Ms / Mr [ · ],

[address]

 

REF: SOP 2007 / Accession Statement

 

Dear Ms / Mr [ · ],

 

You will participate in this SOP 2007 with effect as of [ · ] (Participation Date).

 

As Participant in the SOP 2007 you will be granted options to acquire shares in the Company pursuant to this SOP 2007 in the amounts as set forth in the Vesting Table attached.

 

You may exercise your options by:

 

(i)                                      delivery of cash, certified or cashier’s check, money order or other cash equivalent acceptable to the [Company] in its discretion;

 

(ii)                                   a broker-assisted cashless exercise in accordance with Regulation T of the Board of Governors of the Federal Reserve System through a brokerage firm designated or approved by the [Company];

 

(iii)                                subject to such limits as the [Company] may impose from time to time, tender (via actual delivery or attestation) to the Company of other Shares of the Company which have a market value on the date of tender equal to the Exercise Price;

 

(iv)                               subject to such limits as the [Company] may impose from time to time, net share settlement;

 

(v)                                  any other method approved by the [Company]; or

 

(vi)                               any combination of the foregoing(1).

 


 

Nabriva Therapeutics Plc:

 

DATE:

 

 

 

PARTICIPANT: DATE:

 

 


(1)  Note: Specific exercise provisions to be included on a grant by grant basis as approved by Company. Note that only the
alternatives at (i) and (ii) will be available to beneficiaries who are not employees or executive directors of the Company.

 



 

2.12.            Amendments to Annex 4 — Form of Exercise Notice

 

The following shall replace Annex 4 in its entirety:

 

Form of Exercise Notice

 

To:

Mihovil Spoljaric (mihovil.spoljaric@nabriva.com)

 

REF: SOP 2007 / Exercise Notice

 

Dear Sirs,

 

I am a participant in the SOP 2007. Capitalized terms not otherwise defined herein shall have the meaning assigned to such term in the SOP 2007. This is an Exercise Notice.

 

I hereby irrevocably declare to exercise [ · ] vested options granted to me [on · ]

 

·                   When exercising the above number of options, I wish to acquire [ · ] Shares as determined in the vesting table attached to my Accession Statement at the Exercise Price per Share. Such Shares shall be delivered to my securities account no. [ · ] with [ · ] against payment in cash (or such consideration as permitted by my Accession Statement) by me of the Exercise Price for each Share. I acknowledge that I must satisfy any applicable tax withholding (including social security contributions) resulting from the exercise of my options by making a cash payment(2) to the Company (or otherwise in a manner as the Company may permit) before any Shares will be delivered to me.

 

·                   Whereas in the case of a Liquation Event, (i) I acknowledge that in case of a distributable remainder the Company — in consideration of the Exercise Price — in its sole discretion may opt to provide me with Shares in the Company rather than with the cash amounts attributable to me according to the SOP 2007, (ii) I shall deposit the Exercise Price only upon notification by the Company that a distributable remainder exists, (iii) upon such notification, I shall deposit the Exercise Price within seven (7) business days.

 

I acknowledge that options have not been granted as remuneration or as a bonus for job performance but rather as a voluntary benefit to encourage motivation and solidarity with the Company and that I have no entitlement to any future comparable benefits.

 

 

Name

 

 

 

Date

 

 


(2)  Note: Confirm that value of vested options not to be used to assist with tax liability.

 


Exhibit 10.3

Nabriva Therapeutics AG

 

Amended and Restated Stock Option Plan 2015

 

I. INTRODUCTION

 

(A)             On April 2, 2015 the shareholders, the Management Board and the Supervisory Board of Nabriva Therapeutics AG ( Nabriva or the Company ) resolved to implement a stock option plan under which the Company’s employees, including members of the Management Board, and members of the Supervisory Board are eligible to receive options to purchase Shares of the Company (any recipient of an award of options, a Beneficiary ). On 30 June 2015 the shareholders of the Company resolved to amend the stock option plan so implemented by approving this Amended and Restated Stock Option Plan 2015 (the amended and restated plan, as it may be amended from time to time, the SOP 2015 ).

 

(B)             Options granted hereunder entitle each Beneficiary to acquire Shares in Nabriva or otherwise settle the options under the conditions set forth herein. Nabriva believes that this SOP 2015 enhances the commitment of the Beneficiaries to contribute to Nabriva’s success by allowing them to participate in the increase in the value of the Company and thereby aligns the interests of the Beneficiaries with those of the Company’s shareholders.

 

(C)             Each Beneficiary will receive an Accession Statement (the form of which is attached hereto at Annex ./2 ) informing the Beneficiary of the SOP 2015 and any awards made to the Beneficiary under it. The provisions set forth herein regulate the SOP 2015 in its entirety. If any of the information communicated to the potential participants of the SOP 2015 diverges from this SOP 2015, the provisions of this SOP 2015 shall prevail.

 

(D)             Options pursuant to this SOP 2015 are neither granted as remuneration nor as bonus in exchange for the performance of Beneficiaries during a specific period. Rather, the participation in the SOP 2015 and the vesting of options pursuant to this SOP 2015 constitute a voluntary benefit of the Company. Following the nature of voluntary benefits these are solely granted to foster the motivation and solidarity of all Beneficiaries.

 

II. STRUCTURE OF THE STOCK OPTION PLAN

 

A. Options

 

Subject to adjustment as set forth in Clause II.D.13 hereof, options may be granted and vested to all Beneficiaries under the SOP 2015 for up to 95,000 Shares (the Overall Number of Options ). The number of Shares subject to any option granted to a Beneficiary is set forth on such Beneficiary’s Accession Statement. If an option granted under the SOP 2015 expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in part or otherwise results in Shares not being issued, the unused Shares shall again be available for the grant of options. Notwithstanding the date and duration of their participation herein and without prejudice to the provisions of this SOP 2015, no person (whether or not he or she is already a Beneficiary under the SOP 2015) shall be entitled to (further) options under this SOP 2015 once the Overall Number of Options are granted, taking into account any permitted share recycling as set forth herein, unless the shareholders of Nabriva resolve upon an increase of the Overall Number of Options.

 



 

1.                    Vesting

 

1.1             The period in which granted options are vested in accordance with the SOP 2015 shall be four years ( Vesting Period ) unless otherwise determined by the Company; except with respect to options awarded to members of the Supervisory Board, any alternative vesting period determined by the Company must be approved by the Supervisory Board or the Management Board. The Vesting Period with respect to a Beneficiary shall commence on the Date of Participation.

 

(i)                   Year 1

 

On the last day of the last calendar month of the first year of the Vesting Period following the Date of Participation, 25% of the options eligible to be vested per Beneficiary shall be vested automatically with that Beneficiary.

 

(ii)                Year 2, Year 3 and Year 4

 

During the second, third and fourth years of the Vesting Period following the Date of Participation, the remaining 75% of the options eligible to be vested per Beneficiary shall be vested with that Beneficiary on a monthly pro rata basis (i.e. 2.083% per month). Options eligible to be vested for any given month in years two, three and four of the Vesting Period will be vested automatically on the last day of each calendar month.

 

1.2             Options shall be vested to Beneficiaries taking maternity leave ( Maternity Leave Employees ) in accordance with this Clause II.A.1, provided that options shall not be vested during the time the Maternity Leave Employee is on maternity leave

 

1.3             For the avoidance of doubt, options vested prior to the Maternity Leave Employee having taken maternity leave shall not be forfeited.

 

2.                    Exercise Price

 

2.1             The exercise price per option shall be equal to 100% of the Fair Market Value per Share on the Date of Participation (the Exercise Price ). If the Management Board, Supervisory Board, or shareholders, as the case may be, approve the grant of an option with an Exercise Price to be determined on a future date, the Exercise Price shall be equal to 100% of the Fair Market Value on such future date.

 

2.2             Subject to the provisions set forth herein, each vested option entitles a Beneficiary to acquire one Share at the Exercise Price.

 

2.3             The Company shall pay for any costs arising in connection with the determination of the Exercise Price.

 

3.                    Exercising vested options

 

3.1             Options granted under the SOP 2015 shall have a term of no more than 10 years from the Date of Participation.

 

3.2             Unless otherwise specifically permitted in the Accession Statement or resolved upon by the Management Board with the approval of the Supervisory Board, the exercise of a vested option is only permissible in case of a Liquidity Event or following an initial public offering occurring during the term of the option. In the case of a Liquidity Event occurring prior to an initial public offering of the Company, the Beneficiaries are entitled to exercise their vested options, taking into account any vesting acceleration provided for under Clause II.B.8

 



 

hereof, within the six-week period commencing the day after notification of all Beneficiaries of the upcoming Liquidity Event; provided that, if the acquiring or succeeding corporation (or an affiliate thereof) assumes any options in the Liquidity Event, such assumed options may be exercised, to the extent vested in accordance with their terms and Clause II.B.8 hereof, at any time during the remaining term of the option while the Beneficiary is providing services to the acquiring or succeeding corporation (or an affiliate thereof) and within the three-month period following a termination of the Beneficiary’s services to such entity due to a Good Leaver Event. In the case of an initial public offering, the Beneficiaries are entitled to exercise their vested options at any time, following such offering, during the remaining term of the option while the Beneficiary is providing services to the Company and within the three month period following a termination of the Beneficiary’s services due to a Good Leaver Event. The period during which an option may be exercised is the Exercise Period .

 

3.3             In order to exercise a vested option, the Beneficiary must notify the Company by submitting an exercise notice to the Company in the form of Annex ./3 (the Exercise Notice ) one week (or such shorter period as is permitted by the Company) prior to the date he wishes to exercise the option as specified in the Exercise Notice.

 

3.4             In case of a Liquidity Event, the Beneficiaries will — following their exercise of options — only receive a portion of the remainder, if any, of the proceeds from such Liquidity Event after satisfaction of the holders of certain preferred shares pursuant to liquidation preference agreements as in force at the date of exercise of options, whereas the Beneficiaries will participate in such remainder, if any, pro rata corresponding to their shareholding in the Company (in case Shares would have been transferred to the Beneficiaries); whereas the Company in case of a distributable remainder in its sole discretion may opt to provide the Beneficiaries with Shares in the Company rather than with cash amounts. A Beneficiary’s obligation to deposit the Exercise Price shall be subject to notification by the Company that a distributable remainder exists.

 

4.                    Rights and restrictions attached to vested options

 

4.1             The Beneficiaries shall not be entitled to transfer vested options, except to individuals by way of inheritance or bequest. For the avoidance of doubt, Beneficiaries shall also not be entitled to transfer vested options by virtue of bilateral legal transactions causa mortis with or without consideration.

 

4.2             The Beneficiaries shall not be entitled to grant rights to, encumber or dispose of vested options in any other manner (in particular pledge, transfer by way of security or derivative transactions having the same commercial effect).

 

4.3             Options do not entitle the Beneficiary to exercise any shareholder rights. The Beneficiary may only exercise shareholder rights if and to the extent he holds Shares.

 

4.4             In the event of an Insolvency of a Beneficiary, the options not yet exercised by such Beneficiary shall automatically be forfeited.

 

4.5             Any options not exercised by the end of the Exercise Period shall automatically and finally lapse and be forfeited.

 

B. Termination of Employment or Board Position

 

In case a Beneficiary’s services to the Company are terminated, the following shall apply:

 



 

 

5.                    Good Leaver Events

 

5.1             If a Beneficiary’s service or employment relationship ends during the term of the SOP 2015 due to (and each of the following a Good Leaver Event )

 

(i)                            retirement due to age or permanent disability ( Ausscheiden aufgrund Alters oder dauernder Arbeitsunfähigkeit );

 

(ii)                         death;

 

(iii)                      ordinary termination by maintaining the contractual or statutory periods and deadlines ( ordentliche Kündigung ) by the Company or the Beneficiary;

 

(iv)                     justified premature resignation with immediate effect ( berechtigter vorzeitiger Austritt );

 

(v)                        unjustified dismissal ( ungerechtfertigte Entlassung );

 

(vi)                     mutual termination ( einvernehmliche Auflösung );

 

(vii)                  expiry of a Management Board or Supervisory Board mandate ( Nichtverlängerung eines Mandats );

 

(viii)               premature revocation of a Management Board or Supervisory Board mandate without good cause ( Abberufung ohne wichtigen Grund ); or

 

(ix)                     resignation of a member of the Management Board or Supervisor Board with good cause ( Rücktritt aus wichtigem Grund );

 

all rights and entitlements under the SOP 2015 to the options which have not been vested upon the occurrence of a Good Leaver Event shall be automatically forfeited. For the avoidance of doubt, except as otherwise determined by the Supervisory Board, with respect to members of the Management Board, or the shareholders, with respect to members of the Supervisory Board, none of the events set forth in (vii), (viii) or (ix) shall constitute a termination of services to the extent the board member continues to provide services to the Company as an employee or otherwise.

 

Options eligible to be vested to a Beneficiary in a fiscal year which are not actually vested in respect of such Beneficiary in that fiscal year shall not be available to that Beneficiary at any other time.

 

5.2             Beneficiaries with options vested but not exercised at the time of a Good Leaver Event shall retain such options and be entitled to exercise such options according to the provisions set forth herein.

 

6.                    Bad Leaver Events

 

6.1             If a Beneficiary’s service or employment relationship with the Company ends during the term of the SOP 2015 due to an event other than a Good Leaver Event (a Bad Leaver Event ), all options of the Beneficiary vested but not exercised at the time a Bad Leaver Event occurs shall be forfeited. The revocation of a member of the Management Board pursuant to a vote of non-confidence by the General Assembly ( Vertrauensentzug ) shall not constitute a Bad Leaver Event as long as no reason for justified dismissal is set by the Beneficiary.

 

6.2             The Supervisory Board may within its discretion decide whether to grant to a Beneficiary advantages as from a Good Leaver event even though the end of a Beneficiary’s service or employment relationship constitutes a Bad Leaver Event as described in this Clause II.B.6. In case the Beneficiary concerned functions as a member of the Supervisory Board, the shareholders shall decide on the advantages granted to the Beneficiary as set forth above.

 



 

7.                    Exercised options

 

The termination of a service or an employment relationship with the Company shall have no effect on options that were exercised prior to the date of a declaration of termination of the Beneficiary’s services.

 

8.                    Accelerated Vesting

 

In case a Liquidity Event occurs, all options outstanding under the SOP 2015 at such time, shall be assumed, or substantially equivalent options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof) and any such options that are not yet vested shall continue to become vested in accordance with the original vesting schedule set forth on the Beneficiary’s original Accession Statement. However, each such option shall be immediately exercisable in full if, on or prior to the first anniversary of the date of the consummation of the Liquidity Event, the Beneficiary’s services with the Company or the acquiring or succeeding corporation (or an affiliate thereof) is terminated due to a Good Leaver Event. If the acquiring or succeeding corporation (or an affiliate thereof) refuses to assume or substitute substantial equivalent options in accordance with the first sentence of this Clause II.B.8, then all remaining options not yet vested with a Beneficiary at the time of such Liquidity Event shall vest with the Beneficiaries with immediate effect.

 

C. Duration, Expiry, Amendments to and Termination of
the Stock Option Plan

 

9.                    Duration and Expiry

 

9.1             The SOP 2015 shall become effective on upon the registration of the conditional capital increase of the Company resolved upon in the shareholders’ meeting on 30 June 2015 with the commercial register (the Effective Date ).

 

9.2             No options shall be granted under the SOP 2015 after the expiration of 10 years from the Effective Date, but options previously granted may extend beyond that date.

 

10.             Amendments

 

10.1      The Management Board, Supervisory Board or shareholders, as the case may be, may amend, modify or terminate any outstanding option. The Beneficiary’s consent to such action shall be required unless (i) the Management Board, Supervisory Board or shareholders, as the case may be, determine that the action, taking into account any related action, does not materially and adversely affect the Beneficiary’s rights under the SOP 2015 or (ii) the change is permitted under Clause II.D.13.

 

10.2      The Management Board may amend, suspend or terminate the SOP 2015 or any portion thereof at any time; provided that if at any time the approval of the Company’s shareholders is required, including by application of Austrian law, the Management Board may not effect such modification or amendment without such approval. Unless otherwise specified in the amendment, any amendment to the SOP 2015 adopted in accordance with this Clause II.C.10.2 shall apply to, and be binding on the Beneficiaries of, all options outstanding under the SOP 2015 at the time the amendment is adopted, provided the Management Board or shareholders, as the case may be, determine that such amendment, taking into account any related action, does not materially and adversely affect the rights of Beneficiaries under the SOP 2015.

 



 

11.             Termination

 

The Company may terminate any option granted to a Beneficiary under the SOP 2015 for good cause if that Beneficiary breaches significant statutory or contractual obligations in connection with its service or employment relationship with the Company. Such good cause shall be a reason pursuant to sec 75 Austrian Stock Company Act ( Aktiengesetz ) for members of the Management Board and the Supervisory Board of the Company and pursuant to sec 27 Austrian Employees Act ( Angestelltengesetz ) for employees of the Company whereby the revocation of a member of the Management Board pursuant to a vote of non-confidence ( Vertrauensentzug ) by the shareholders shall not constitute such good cause in the meaning of this paragraph as long as no reason for justified dismissal is set by the Beneficiary. To the extent the members of the Management Board are affected, the Supervisory Board shall exercise such termination right. To the extent members of the Supervisory Board are affected, the Company’s shareholders shall be competent to resolve upon such termination by simple majority.

 

D. Risks

 

12.             Risks

 

12.1      Neither the Company nor any shareholder of the Company (or any of their officers, employees or consultants)

 

(i)                            assumes any responsibility or liability for the development of the value of the market price of the Shares;

 

(ii)                         warrant, assure or guarantee any increase in value of the Shares, in particular it is neither warranted, assured or guaranteed that a Beneficiary will be able to sell his participation in the Company with a profit in the future nor that no loss will be incurred;

 

(iii)                      warrant, assure or guarantee a profit of a Beneficiary from this SOP 2015;

 

(iv)                     makes any representations or warranty and shall have no liability to the Beneficiary or any other person if any provisions of or payments, compensation or other benefits under the SOP 2015 are determined to constitute nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code but do not to satisfy the conditions of that section.

 

12.2      Each Beneficiary declares with his participation in the SOP 2015 that the participation is voluntary. Each Beneficiary is aware of the fact that he alone bears the risk of a decrease in or total loss of value of his investments. Each Beneficiary accepts the offer to participate in the SOP 2015 at his own risk and assumes any liability relating thereto.

 

12.3      Each Beneficiary is responsible for obtaining legal and tax advice before participating in the SOP 2015 and for evaluating the tax effects connected with the SOP 2015. Each Beneficiary accepts and declares that he has not been advised by or on behalf of the Company with respect to his participation in the SOP 2015 (in particular regarding legal and tax issues of the participation).

 

12.4      The Company declares to undertake the best efforts for a risk minimal and tax efficient settlement of this SOP 2015.

 



 

D. Miscellaneous

 

13.             Stock Adjustments

 

13.1      If, during the term of the SOP 2015, changes to the capital of the Company or restructuring measures have an effect on the capital of the Company, such as a stock split or reverse split of stocks, (together Stock Adjustments ) which result in a change in the value of the options, the Company is entitled to adjust the price or the amount of the options respectively, to the extent necessary to compensate changes in value (but not a dilution of shareholding) resulting from any Stock Adjustments. For the avoidance of doubt, this Clause II.D.13 shall not apply to measures, such as future financing rounds, in which new shareholders of the Company are introduced.

 

13.2      The Supervisory Board decides on an adjustment based on a proposal by the Management Board. After execution of the Stock Adjustments the total value of the granted options shall equal the total value of the options before execution of such Stock Adjustments. The Company will inform the Beneficiaries about the Stock Adjustment and the effective date of the Stock Adjustment.

 

14.             Agreement in connection with an Initial Public Offering

 

14.1      Each Beneficiary agrees, in connection with the initial underwritten public offering of Shares pursuant to a registration statement under the Securities Act, (i) not to (a) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any Shares or any other securities of the Company or (b) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of Shares or other securities of the Company, whether any transaction described in clause (a) or (b) is to be settled by delivery of securities, in cash or otherwise, during the period beginning on the date of the filing of such registration statement with the United States Securities and Exchange Commission and ending 180 days after the date of the final prospectus relating to the offering (plus up to an additional 34 days to the extent requested by the managing underwriters for such offering in order to address Rule 2711(f) of the National Association of Securities Dealers, Inc. or any similar successor provision), and (ii) to execute any agreement reflecting clause (i) above as may be requested by the Company or the managing underwriters at the time of such offering. The Company may impose stop-transfer instructions with respect to the Shares or other securities subject to the foregoing restriction until the end of the “lock-up” period.

 

15.             No business practice (“Betriebliche Übung”)

 

15.1      The granting of options and the implementation of the SOP 2015 is the free and discretionary choice of the Company, constitutes a voluntary benefit and shall not give rise to any legal claim by a Beneficiary for the future, not even in the case of repeated granting.

 

15.2      Beneficiaries of the SOP 2015 do not have a right for the introduction of another option plan or any vesting of options in addition to those under the SOP 2015, even if the Company implements any other option plan or vests further options under any other option plan.

 

15.3      Vested options under this SOP 2015 do not affect the calculation of severance, premiums, royalties, pension plans or any other remuneration of the Beneficiary.

 

16.             Taxes, duties and social contributions

 

16.1      All taxes, social contributions, further duties and costs accrued by the Beneficiary in connection with its participation in the SOP 2015 or due to the distribution of profits shall be borne by each Beneficiary. Each

 



 

Beneficiary is obliged to pay taxes relating to the respective options granted/exercised under the SOP 2015 to the competent tax authorities, also in the course of tax audits or any other procedures. Each Beneficiary shall fully indemnify the Company in respect of all such liabilities and obligations against tax authorities.

 

16.2      The employer of the Beneficiary is entitled, if required by statutory law, to withhold wage tax or any other taxes or duties or social contributions to be paid by the Beneficiary. This applies even after termination of the employment of a Beneficiary with the Company, if the vested options granted are non-lapsable but not yet exercisable. The Company is entitled to demand the full cooperation of the Beneficiary even after his leave with respect to the withholding of taxes, social contributions, other duties and costs in connection with this SOP 2015. The Beneficiary undertakes to co-operate.

 

16.3      Withholdings mentioned above do not release the Beneficiary from his responsibility and obligation to pay all taxes, social contributions, further duties and costs being due and accruing in connection with his participation in the SOP 2015 or in connection with the distribution of profits.

 

17.             Notices

 

17.1      Notifications to the Company with respect to the terms of the SOP 2015 shall only be made to:

 

Nabriva Therapeutics AG

Corporate Human Resources

fax: +43 1 74093 1202

email: ralf.schmid@nabriva.com

 

17.2      Notifications by the Company to the Beneficiary relating to the SOP 2015 shall be made in writing (including email or fax) to each Beneficiary to the respective Beneficiary’s address last disclosed to the Company.

 

18.             Saving provisions

 

If any provision of this SOP 2015 in full or in part is or becomes invalid, this shall not affect the validity of all other provisions or the valid part of an invalid provision. To the extent legally possible, an agreement shall be made replacing the invalid provision by a provision which best meets the intent of the terms of the SOP 2015. The same applies to loopholes of the terms of the SOP 2015, which may arise in the course of implementation of the terms of the SOP 2015.

 

19.             Governing law and jurisdiction

 

The terms of the SOP 2015, its interpretation and all rights and obligations arising there from shall be governed by Austrian law, except for international private law and the UN Convention on Contracts for the International Sales of Goods. The courts of Vienna, Austria, shall, to the extent legally possible, have exclusive jurisdiction regarding all claims in connection with and the terms of the SOP 2015.

 

Annex:

./1                Definitions

./2                Accession Statement

./3                Exercise Notice

 



 

Annex ./1

 

I. Definitions

 

 

 

 

Bad Leaver Event

 

has the meaning ascribed thereto in Clause II.C.2

 

 

 

Insolvency

 

means the initiation of insolvency proceedings in regard to the assets of a Beneficiary, the dismissal of an application for insolvency due to a lack of assets or the initiation of private insolvency proceedings pursuant to secs. 181 et seq. of the Austrian Insolvency Code (“ IO ”) or any equivalent rule in any other relevant jurisdiction

 

 

 

Beneficiary

 

is any employee (for the avoidance of doubt including any member of the Management Board), member of the Supervisory Board of the Company or any other individual eligible to receive options hereunder, who receives an award of options

 

 

 

Company

 

Nabriva Therapeutics AG and its legal successors

 

 

 

Date of Participation

 

means the date on which an option is awarded and the recipient becomes a Beneficiary in this SOP 2015. A Beneficiary’s Date of Participation is set forth on the Beneficiary’s Accession Statement

 

 

 

Effective Date

 

has the meaning ascribed thereto in Clause II.C.9

 

 

 

Exercise Notice

 

has the meaning ascribed thereto in Clause II.A.3

 

 

 

Exercise Period

 

has the meaning ascribed thereto in Clause II.A.3

 

 

 

Exercise Price

 

has the meaning ascribed thereto in Clause II.A.2

 

 

 

Fair Market Value

 

shall, for each Share for purposes of the SOP 2015, be determined as follows:

 

 

 

 

 

(i) if the Shares are not publicly traded, the Management Board, subject to the approval of the Supervisory Board, will determine the Fair Market Value for purposes of the SOP 2015 on the basis of an enterprise value of the Company of US$148,045,201 as determined by the independent third-party expert evaluator Duff & Phelps B.V. as of March 31, 2015, and taking into account any measure of value it determines to be appropriate to reflect changes in the value of the Company since March 31, 2015 in a manner consistent with the valuation principles under Section 409A of the Internal Revenue Code;

 

 

 

 

 

(ii) if the Shares trade on a national securities exchange, the closing sale price (for the primary trading session) on the Date of Participation; or

 



 

 

 

(iii) if the Shares do not trade on any such exchange, the average of the closing bid and asked prices as reported by an authorized OTCBB market data vendor as listed on the OTCBB website otcbb.com) on the Date of Participation.

 

 

 

 

 

For any date that is not a trading day, the Fair Market Value of a Share for such date will be determined by using the closing sale price or average of the bid and asked prices, as appropriate, for the immediately preceding trading day and with the timing in the formulas above adjusted accordingly. The Management Board can substitute a particular time of day or other measure of “closing sale price” or “bid and asked prices” if appropriate because of exchange or market procedures or can, in its sole discretion, use weighted averages either on a daily basis or such longer period as complies with Section 409A of the Internal Revenue Code.

 

 

 

 

 

The Management Board and Supervisory Board have, within the framework determined by the shareholders in this SOP 2015, sole discretion to determine the Fair Market Value for purposes of the SOP 2015, and all options are conditioned on the Beneficiary’s agreement that the Management Board’s and Supervisory Board’s determination is conclusive and binding even though others might make a different determination.

 

 

 

Good Leaver Event

 

has the meaning ascribed thereto in Clause II.B.5

 

 

 

Internal Revenue Code

 

means the United States Internal Revenue Code of 1986, as amended or any successor thereto

 

 

 

Liquidity Event

 

means:

 

 

 

 

 

(i) an exclusive license of or the sale, the lease or other disposal of all or substantially all of the assets of the Company;

 

 

 

 

 

(ii) a sale or other disposal (for the avoidance of doubt, the term disposal shall not include a pledge) in any transaction or series of transactions to which the Company is a party of 50% or more of the voting power of the Company, other than any transaction or series of transactions principally for bona fide equity financing purposes in which cash is received by the Company or indebtedness of the Company is cancelled or converted, or a combination thereof;

 

 

 

 

 

(iii) a merger or consolidation of the Company with or into any third party, other than any merger or consolidation in which the shares of the Company immediately preceding such merger or consolidation continue to represent a majority of the voting power of the surviving entity immediately after the closing of such merger or consolidation; and

 



 

 

 

(iv) a liquidation, winding up or any other form of dissolution of the Company.

 

 

 

Management Board

 

means the management board ( Vorstand ) of the Company

 

 

 

Maternity Leave Employees

 

has the meaning ascribed thereto in Clause II. A

 

 

 

Overall Number of Options

 

has the meaning ascribed thereto in Clause II. A

 

 

 

Securities Act

 

means the United States Securities Act of 1933

 

 

 

Shares and each a Share

 

means the common shares of the Company issued from time to time

 

 

 

SOP 2015

 

has the meaning ascribed thereto in Clause I

 

 

 

Supervisory Board

 

means the supervisory board ( Aufsichtsrat ) of the Company

 

 

 

Vesting Period

 

has the meaning ascribed thereto in Clause II.A.1

 



 

Annex ./2

 

Form of Accession Statement

 

To:

 

Ms / Mr [ · ],

 

[address]

 

REF: SOP 2015 / Accession Statement

 

Dear Ms / Mr [ · ],

 

You will participate in this SOP 2015 with effect as of [ · ] (Participation Date ).

 

As Participant in the SOP 2015 you will be granted options to acquire shares in the Company pursuant to this SOP 2015 in the amounts as set forth in the Vesting Table attached.

 



 

Nabriva Therapeutics AG:

 

DATE:

 

PARTICIPANT:

 

DATE:

 

Annex:

 

./        Vesting Table

 



 

Annex ./3

 

Form of Exercise Notice

 

To:

 

Nabriva Therapeutics AG

Corporate Human Resources

Leberstraße 20

1010 Vienna, Austria

 

REF: SOP 2015 / Exercise Notice

 

Dear Sirs,

 

I am a participant in the SOP 2015. Capitalized terms not otherwise defined herein shall have the meaning assigned to such term in the SOP 2015. This is an Exercise Notice.

 

I hereby irrevocably declare to exercise [ · ] vested options granted to me [on · ]

 

                When exercising the above number of options, I wish to acquire [ · ] Shares as determined in the vesting table attached to my Accession Statement at the Exercise Price per Share. Such Shares shall be delivered to my securities account no. [ · ] with [•] against payment in cash by me of the Exercise Price for each Share. I acknowledge that I must satisfy any applicable tax withholding (including social security contributions) resulting from the exercise of my options by making a cash payment to the Company (or otherwise in a manner as the Company may permit) before any Shares will be delivered to me.

 

                Whereas in the case of a Liquidity Event, (i) I acknowledge that in case of a distributable remainder the Company — in consideration of the Exercise Price — in its sole discretion may opt to provide me with Shares in the Company rather than with the cash amounts attributable to me according to the SOP 2015, (ii) I shall deposit the Exercise Price only upon notification by the Company that a distributable remainder exists, (iii) upon such notification, I shall deposit the Exercise Price within seven (7) business days.

 

I acknowledge that options have not been granted as remuneration or as a bonus for job performance but rather as a voluntary benefit to encourage motivation and solidarity with the Company and that I have no entitlement to any future comparable benefits.

 

Name

 

Date

 



 

ADDENDUM

 

with regard to the

 

Nabriva Therapeutics AG’s

 

Amended and Restated Stock Option Plan

 

dated 30 June 2015

 



 

PREAMBLE

 

WHEREAS, on 2 April 2015, the shareholders, Management Board and the Supervisory Board of Nabriva Therapeutics AG ( Nabriva or the Company ) resolved to implement a stock option plan under which the Company’s employees and members of the Management Board and the Supervisory Board are eligible to receive options to purchase Shares of the Company;

 

WHEREAS, on 30 June 2015, the shareholders of the Company resolved to amend the stock option plan so implemented by approving an amended and restated version of the stock option plan (the amended and restated plan, the SOP 2015 ); and

 

WHEREAS, on 22 July 2015, the shareholders of the Company resolved to amend the SOP 2015 and thus, the Company is interested in amending the SOP 2015 according to such shareholders’ resolution through this addendum to the SOP 2015 (the Addendum ).

 

1.                I NTERPRETATION

 

1.1         Definitions

 

Unless explicitly stated otherwise herein, all capitalized terms used in this Addendum shall have the meaning assigned to them in the SOP 2015.

 

1.2         Supplemental

 

Except as explicitly provided herein, the SOP 2015 shall remain in full force and effect, and the SOP 2015 together with this Addendum shall be read and construed as one document.

 

2.                A MENDMENTS TO THE SOP 2015

 

2.1         Amendments to Clause II. A

 

(1) Effective as of 22 July 2015, the first paragraph of Clause II. A (“ II. Structure of the Stock Option Plan. A. Options ”) of the SOP 2015 shall be deleted and replaced in its entirety by the following:

 

Subject to adjustment as set forth in Clause II.D.13 hereof, options (any or all of which may be in the form of Incentive Stock Options) may be granted and vested to all Beneficiaries (provided that only Company employees are eligible to receive Incentive Stock Options) under the SOP 2015 for up 95,000 Shares (the Overall Number of Options ). The number of Shares subject to any option granted to a Beneficiary is set forth on such Beneficiary’s Accession Statement. If an option granted under the SOP 2015 expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in part or otherwise results in Shares not being issued, the unused Shares shall again be available for the grant of options (subject, however, in the case of Incentive Stock Options to any limitations of the Internal Revenue Code). Notwithstanding the date and duration of their participation herein and without prejudice to the provisions of this SOP 2015, no person (whether or not he or she is already a Beneficiary under the SOP 2015) shall be entitled to (further) options under this SOP 2015 once the Overall Number of Options are granted, taking into account any permitted share recycling as set forth herein, unless the shareholders of Nabriva resolve upon an increase of the Overall Number of Options.

 

(2) Effective as of the closing of an initial public offering of the Company, the Overall Number of Options shall be increased to 177,499 Shares.

 



 

2.2         Amendment to Clause II. C.9.2

 

Clause II. C.9.2 shall be deleted and replaced in its entirety by the following:

 

No options shall be granted under the SOP 2015 after the expiration of 10 years from 22 July 2015, but options previously granted may extend beyond that date.

 

2.3         Amendment to Clause II. D.12.1

 

The following provision shall be added to the end of Clause II. D.12.1:

 

(v)               shall have any liability to a Beneficiary or any other party, if an option (or any part thereof) that is intended to be an Incentive Stock Option is not an Incentive Stock Option or if the Company converts an Incentive Stock Option into an option that no longer qualifies as an Incentive Stock Option.

 

2.4         Amendment to Clause II. D.13.1

 

Clause II. D.13.1 shall be deleted and replaced in its entirety by the following:

 

If, during the term of the SOP 2015, changes to the capital of the Company or restructuring measures have an effect on the capital of the Company, such as a stock split or reverse split of stocks, (together Stock Adjustments ), the Company is entitled to adjust (i) the number and class of securities available under the SOP 2015 and (ii) the price or the amount of the options respectively, to the extent necessary to compensate changes in value (but not a dilution of shareholding) resulting from any Stock Adjustments. For the avoidance of doubt, this Clause II.D.13 shall not apply to measures, such as future financing rounds, in which new shareholders of the Company are introduced.

 

2.5         Amendment to Annex ./1 I. Definitions:

 

(1) The definition of “Company” shall be deleted and replaced in its entirety by the following:

 

Company

 

has the meaning ascribed thereto in Clause I.(A); provided that the meaning of Company shall also include Nabriva’s legal successors and, except where the context otherwise requires, Nabriva’s present or future parent or subsidiary corporations as defined in Sections 424(e) or (f) of the Internal Revenue Code and any other business venture (including, without limitation, joint venture or limited liability company) in which the Company has a controlling interest, as determined by the Supervisory Board.

 

(2) The following new definition shall be added:

 

Incentive Stock Options

 

means options that are “incentive stock options” within the meaning of Section 422 of the Internal Revenue Code.

 



 

SECOND ADDENDUM

 

with regard to the

 

Nabriva Therapeutics AG’s

 

Amended and Restated Stock Option Plan

 

dated 25 August 2016

 



 

PREAMBLE

 

WHEREAS, on 2 April 2015, the shareholders, Management Board and the Supervisory Board of Nabriva Therapeutics AG (Nabriva or the Company) resolved to implement a stock option plan under which the Company’s employees and members of the Management Board and the Supervisory Board are eligible to receive options to purchase Shares of the Company;

 

WHEREAS, on 30 June 2015, the shareholders of the Company resolved to amend the stock option plan so implemented by approving an amended and restated version of the stock option plan (the amended and restated plan, the SOP 2015);

 

WHEREAS, on 22 July 2015, the shareholders of the Company resolved to amend the SOP 2015 and thus, the SOP 2015 was amended through the Addendum to the SOP dated 30 June 2015 regarding an increase in the Overall Number of Options and the ability of the Company to grant Incentive Stock Options (the First Addendum); and

 

WHEREAS, on 25 August 2016, the shareholders of the Company resolved to further amend the SOP 2015 according to the shareholders’ resolution through this second addendum to the SOP 2015 (the Second Addendum).

 

1.              INTERPRETATION

 

1.1           Definitions

 

Unless explicitly stated otherwise herein, all capitalized terms used in this Addendum shall have the meaning assigned to them in the SOP 2015.

 

1.2           Supplemental

 

Except as explicitly provided herein, the SOP 2015 shall remain in full force and effect, and the SOP 2015 together with this Addendum shall be read and construed as one document.

 

2.              AMENDMENTS TO THE SOP 2015

 

2.1           Amendments to Clause II. A

 

Effective as of 25 August 2016, the Overall Number of Options shall be increased to 343,899 Shares.

 

2.2           Amendment to Clause II. A.1

 

The following new Clause 1.4 shall be added:

 

Notwithstanding Section 1.1 hereof, options shall be granted to members of the Supervisory Board pursuant to the then-applicable shareholder-approved Supervisory Board Compensation Policy, shall vest as described in such Supervisory Board Compensation Policy and shall otherwise be subject to the terms and conditions applicable to options granted under the SOP 2015. For the avoidance of doubt, options granted to members of the Supervisory Board outside of the shareholder-approved Supervisory Board Compensation Policy shall be subject to all applicable terms and conditions of the SOP 2015, including Section 1.1 hereof.

 



 

THIRD ADDENDUM

 

with regard to

 

Nabriva Therapeutics AG’s

 

Amended and Restated Stock Option

 

Plan

 

dated 30 June 2015

 



 

PREAMBLE

 

WHEREAS, on 2 April 2015, the shareholders, Management Board and the Supervisory Board of Nabriva Therapeutics AG (Nabriva or the Company) resolved to implement a stock option plan under which the Company’s employees and members of the Management Board and the Supervisory Board are eligible to receive options to purchase Shares of the Company;

 

WHEREAS, on 30 June 2015, the shareholders of the Company resolved to amend the stock option plan so implemented by approving an amended and restated version of the stock option plan (the amended and restated plan, the SOP 2015);

 

WHEREAS, on 22 July 2015, the shareholders of the Company resolved to amend the SOP 2015 and thus, the SOP 2015 was amended through the Addendum to the SOP dated 30 June 2015 (the First Addendum); and

 

WHEREAS, on 25 August 2016, the shareholders of the Company resolved to further amend the SOP 2015 according to the shareholders’ resolution through a second addendum to the SOP 2015 deleted 25 August 2016 (the Second Addendum).

 

WHEREAS on or around 13 and 14 April 2017, the Supervisory Board and the Management Board resolved to further amend the SOP 2015 (the Third Addendum) such amendments as are set out in this Third Addendum to be conditional on completion of the proposed exchange of Common Shares and ADS’s in the Company for Nabriva Therapeutics plc Ordinary Shares.

 

1.              INTERPRETATION

 

1.1           Definitions

 

Unless explicitly stated otherwise herein, all capitalized terms used in this Addendum shall have the meaning assigned to them in the SOP 2015.

 

1.2           Supplemental

 

Except as explicitly provided in the First Addendum, the Second Addendum and herein, the SOP 2015 shall remain in full force and effect, and the SOP 2015 together with the First Addendum, Second Addendum and this Third Addendum shall be read and construed as one document.

 

2.              AMENDMENTS TO THE SOP 2015

 

2.1           Amendments to Clause II 1.1

 

The existing clause 1.1 shall be amended so that references to the “Supervisory Board” are changed to “Board” and references to the “Management Board” are changed to “Committee”.

 

2.2           Amendment to Clause II 2.1

 

The existing clause 2.1 shall be deleted in its entirety and replaced with the following new clause 2.1:

 

The exercise price for an option should be equal to 100% of the Fair Market Value per Share on the Date of Participation (Exercise Price). If the Board or Committee, or shareholders, as the case may be, approve the grant of an option with an Exercise Price to be determined on a future date, the Exercise Price shall be equal to 100% of the Fair Market Value on such future date provided however that in all cases the Exercise Price to be paid is not less than the nominal value of a Share.

 

2.3           Amendment to Clause II 2.1

 

Clause 2.3 shall be amended by the inclusion of the following words after Exercise Price;

 



 

“subject to compliance with Irish law”.

 

2.4           Amendment to Clause II A 3.2

 

Clause 3.2 shall be amended by replacing any references to “Management Board” with “Board” and “Supervisory Board” with “Committee”.

 

2.5           Amendment to Clause II A 3.5

 

A new Clause 3.5 shall be added as follows:

 

In order to exercise a vested option, a Beneficiary must pay the applicable amount of the Exercise Price for the Shares by one of the following means in such manner and form as the Administrator may require from time to time, with such payment option(s) to be determined in the sole and absolute discretion of the Administrator and as specifically set forth in the applicable Accession Statement:

 

(i)              delivery of cash, certified or cashier’s check, money order or other cash equivalent acceptable to the Company in its discretion;

 

(ii)           a broker-assisted cashless exercise in accordance with Regulation T of the Board of Governors of the Federal Reserve System through a brokerage firm designated or approved by the Company;

 

(iii)        subject to such limits as the Company may impose from time to time, tender (via actual delivery or attestation) to the Company of other Shares of the Company which have a Fair Market Value on the date of tender equal to the Exercise Price;

 

(iv)       subject to such limits as the Company may impose from time to time, net share settlement;

 

(v)          any other method approved by the Company; or

 

(vi)       any combination of the foregoing.

 

Save that in respect of Beneficiaries who are not employees or executive directors of the Group, only the methods at 3.5 (i) and 3.5 (ii) may be utilised.

 

2.6           Amendment to Clause II B 5.1

 

The references in Clause 5.1 subsection vii, viii and ix to “Managing Board” or “Supervisory Board” shall be replaced by reference to “Board”.

 

2.7           Amendment to Clauses II B 6.1 and 6.2

 

The entirety of Clauses 6.1 and 6.2 shall be deleted and replaced in their entirety by the following:

 

If a Beneficiary’s service or employment relationship with the Group ends during the term of the SOP 2015 due to an event other than a Good Leaver Event (a “Bad Leaver Event”), all options of the Beneficiary vested but not exercised at the time a Bad Leaver Event occurs shall be forfeited and the SOP 2015 may be terminated in respect of that Beneficiary. In the event that a Director is not re-elected to the Board at an annual general meeting, this shall not constitute a Bad Leaver Event, except for cases where the non re-election is justified by the behaviour of the Director.

 

The Committee may within its discretion decide whether to grant to a Beneficiary advantages as from a Good Leaver event even though the end of a Beneficiary’s service or employment relationship constitutes a Bad Leaver Event as described in this clause 11.B.6.

 



 

2.8           Amendment to Clauses II C 10.1 and 10.2

 

The entirety of Clauses 10.1 and 10.2 shall be deleted and replaced in their entirety by the following:

 

The Board, Committee or shareholders, as the case may be, may amend, modify or terminate any outstanding option. The Beneficiary’s consent to such action shall be required unless (i) the Board, Committee or shareholders, as the case may be, determine that the action, taking into account any related action, does not materially and adversely affect the Beneficiary’s rights under the SOP 2015 or (ii) the change is permitted wider Clause II.D.13.

 

The Board or the Committee may amend, suspend or terminate the SOP 2015 or any portion thereof at any time; provided that if at any time the approval of the Company’s shareholders is required, including by application Irish law, the Board or the Committee may not effect such modification or amendment without such approval. Unless otherwise specified in the amendment, any amendment to the SOP 2015 adopted in accordance with this Clause II.C.10.2 shall apply to, and be binding on the Beneficiaries of, all options outstanding under the SOP 2015 at the time the amendment is adopted, provided the Board or the Committee or shareholders, as the case may be, determine that such amendment, taking into account any related action, does not materially and adversely affect the rights of Beneficiaries under the SOP 2015.

 

2.9           Amendment to Clause II C.11

 

The entirety of the Clause entitled “Termination” shall be deleted.

 

2.10         Amendment to Clause II D.19

 

The provisions of the paragraph entitled “Governing law and Jurisdiction” shall be deleted and replaced in its entirety by the following:

 

The terms of the SOP 2015, its interpretation and all rights and obligations arising there from shall be governed by Irish law. The courts of Ireland shall, to the extent legally possible, have exclusive jurisdiction regarding all claims in connection with the SOP and the terms of the SOP 2015.

 

2.11         Amendment to Section D, Clause 13.2

 

Clause 13.2 shall be amended by replacing any references to “Management Board” with “Board” and “Supervisory Board” with “Committee”.

 

2.12         Amendments to Sections D, Clause 17.1

 

Clause 17.1 shall be amended by replacing the notification contact details with the following:

Nabriva Therapeutics AG

Mihovil Spoljaric

Email: mihovil.spoljaric@nabriva.com

 

2.13         Amendments to Annex 1 I Definitions

 

The following new definitions shall be added Annex I “Definitions”

 

Board                                                               means the board of directors for the time being of the Company or the directors present at a duly convened meeting of the board of the Company at which a quorum is present or a duly constituted committee of the Board.

 

Committee                                    means a duly constituted committee of the Board constituted to consider and review the remuneration and compensation of directors and employees of the Group.

 



 

Group                                                               means the Company and its Subsidiaries.

 

Subsidiary                                        means any company which is, for the time being, a subsidiary of the Company within the meaning of Section 7 of the Companies Act, 2014

 

The definition of “Beneficiary” shall be amended as follows:

 

Beneficiary is any employee (for the avoidance of doubt including any member of the Board or any other individual eligible to receive options hereunder, who receives an award of options.

 

The definition of “Company” shall be amended as follows:

 

Company means Nabriva Therapeutics plc and its legal successors and, except where the context otherwise requires, the Company’s present or future parent or subsidiary corporations as defined in Sections 424(e) or (f) of the Internal Revenue Code and any other business venture (including, without limitation, joint venture or limited liability company) in which the Company has a controlling interest, as determined by the Management Board.

 

The definition of Insolvency shall be amended as follows:

 

Means the initiation of insolvency proceedings in regard to the assets of a Beneficiary, the dismissal of an application for insolvency due to a lack of assets on the initiation of private insolvency proceedings pursuant to applicable law in the relevant jurisdiction or any equivalent rule in any other relevant jurisdiction.

 

The definition of “Shares” shall be amended as follows:

 

Shares and each a Share means the ordinary shares of the Company issued from time to time.

 



 

2.14         Amendments to Annex 2 — Form of Accession Statement

 

The following shall replace Annex 2 in its entirety:

 

Form of Accession Statement

 

To: Mihovil Spoljaric (Mihovil.spoljaric@nabriva.com)

 

REF: SOP 2015 / Accession Statement

 

Dear Ms / Mr [ · ],

 

You will participate in this SOP 2015 with effect as of [ · ] (Participation Date).

 

As Participant in the SOP 2015 you will be granted options to acquire shares in the Company pursuant to this SOP 2015 in the amounts as set forth in the Vesting Table attached.

 

You may exercise your options by:

 

(i)                                      delivery of cash, certified or cashier’s check, money order or other cash equivalent acceptable to the [Company] in its discretion;

 

(ii)                                   a broker-assisted cashless exercise in accordance with Regulation T of the Board of Governors of the Federal Reserve System through a brokerage firm designated or approved by the [Company];

 

(iii)                                subject to such limits as the [Company] may impose from time to time, tender (via actual delivery or attestation) to the Company of other Shares of the Company which have a Fair Market Value on the date of tender equal to the Exercise Price;

 

(iv)                               subject to such limits as the [Company] may impose from time to time, net share settlement;

 

(v)                                  any other method approved by the [Company]; or

 

(vi)                               any combination of the foregoing(1).

 


 

Nabriva Therapeutics Plc:

 

 

 

DATE:

 

 

 

 

 

PARTICIPANT:

 

 

 

DATE:

 

 


(1)  Note: Specific exercise provisions to be included on a grant by grant basis as approved by Company. Note that only the alternatives at (i) and (ii) will be available to beneficiaries who are not employees or executive directors of the Company.

 



 

2.15         Amendments to Annex 3 — Form of Exercise Notice

 

The following shall replace Annex 3 in its entirety:

 

Form of Exercise Notice

 

To: Mihovil Spoljaric (Mihovil.spoljaric@nabriva.com)

 

REF: SOP 2015 / Exercise Notice

 

Dear Sirs,

 

I am a participant in the SOP 2015. Capitalized terms not otherwise defined herein shall have the meaning assigned to such term in the SOP 2015. This is an Exercise Notice.

 

I hereby irrevocably declare to exercise [ · ] vested options granted to me [on · ]

 

·                   When exercising the above number of options, I wish to acquire [ · ] Shares as determined in the vesting table attached to my Accession Statement at the Exercise Price per Share. Such Shares shall be delivered to my securities account no. [ · ] with [ · ] against payment in cash (or such consideration as permitted by my Accession Statement) by me of the Exercise Price for each Share. I acknowledge that I must satisfy any applicable tax withholding (including social security contributions) resulting from the exercise of my options by making a cash payment(2) to the Company (or otherwise in a manner as the Company may permit) before any Shares will be delivered to me.

 

·                   Whereas in the case of a Liquidity Event, (i) I acknowledge that in case of a distributable remainder the Company — in consideration of the Exercise Price — in its sole discretion may opt to provide me with Shares in the Company rather than with the cash amounts attributable to me according to the SOP 2015, (ii) I shall deposit the Exercise Price only upon notification by the Company that a distributable remainder exists, (iii) upon such notification, I shall deposit the Exercise Price within seven (7) business days.

 

I acknowledge that options have not been granted as remuneration or as a bonus for job performance but rather as a voluntary benefit to encourage motivation and solidarity with the Company and that I have no entitlement to any future comparable benefits.

 

 

Name

 

 

 

Date

 

 


(2)  Note: Confirm that value of vested options not to be used to assist with tax liability.

 


Exhibit 14.1

 

Nabriva Therapeutics plc

 

CODE OF BUSINESS CONDUCT AND ETHICS

 

This Code of Business Conduct and Ethics (the “Code”) sets forth legal and ethical standards of conduct for employees, officers and directors of Nabriva Therapeutics plc (the “Company”).  This Code is intended to deter wrongdoing and to promote the conduct of all Company business in accordance with high standards of integrity and in compliance with all applicable laws and regulations.  Except as otherwise required by applicable local law, this Code applies to the Company and all of its subsidiaries and other business entities controlled by it worldwide.

 

If you have any questions regarding this Code or its application to you in any situation, you should contact your supervisor, the Chief Financial Officer (“CFO”) or the General Counsel of the Company.

 

Compliance with Laws, Rules and Regulations

 

The Company requires that all employees, officers and directors comply with all laws, rules and regulations applicable to the Company wherever it does business.  You are expected to use good judgment and common sense in seeking to comply with all applicable laws, rules and regulations and to ask for advice when you are uncertain about them.

 

If you become aware of the violation of any law, rule or regulation by the Company, whether by its employees, officers, directors, or any third party doing business on behalf of the Company, it is your responsibility to promptly report the matter to your supervisor or to the CFO or General Counsel.  While it is the Company’s desire to address matters internally, nothing in this Code prohibits you from reporting any illegal activity to the appropriate regulatory authority.  Employees, officers and directors shall not discharge, demote, suspend, threaten, harass or in any other manner discriminate or retaliate against an employee, officer or director because he or she reports any such violation.  However, if the report was made with knowledge that it was false, the Company may take appropriate disciplinary action up to and including termination. This Code should not be construed to prohibit you from engaging in concerted activity protected by the rules and regulations of the U.S. National Labor Relations Board or from testifying, participating or otherwise assisting in any administrative, judicial or legislative proceeding or investigation.

 

Compliance with Company Policies

 

Every employee, officer and director is expected to comply with all Company policies and rules as in effect from time to time.  You are expected to familiarize yourself with such policies.

 

Conflicts of Interest

 

Employees, officers and directors must act in the best interests of the Company and must refrain from engaging in any activity or having a personal interest that presents a “conflict of

 



 

interest” and should seek to avoid even the appearance of a conflict of interest.  A conflict of interest occurs when your personal interest interferes with the interests of the Company.  A conflict of interest can arise whenever you, as an employee, officer or director, take action or have an interest that prevents you from performing your Company duties and responsibilities honestly, objectively and effectively.

 

All employees, officers and directors must comply with the detailed requirements set out in the Company’s Related Party Transactions Policy, which is available on the Company’s intranet. It is your responsibility to disclose to the CFO or General Counsel any transaction or relationship that reasonably could be expected to give rise to a conflict of interest.

 

Insider Trading

 

Employees, officers and directors who have material non-public information about the Company or other companies, including our collaborators, licensors, licensees, business partners, suppliers and customers, as a result of their relationship with the Company are prohibited by law and Company policy from trading in securities of the Company or such other companies, as well as from communicating such information to others who might trade on the basis of that information.  To help ensure that you do not engage in prohibited insider trading and avoid even the appearance of an improper transaction, the Company has adopted an Insider Trading Policy, which is available on the Company’s Intranet.

 

If you are uncertain about the constraints on your purchase or sale of any Company securities or the securities of any other company that you are familiar with by virtue of your relationship with the Company, you should consult with the CFO or General Counsel before making any such purchase or sale.

 

Confidentiality

 

All information and know-how, whether or not in writing, of a private, secret or confidential nature concerning the Company’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the Company.  By way of illustration, but not limitation, Proprietary Information may include discoveries, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas, compositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research data, clinical data, financial data (including sales costs, profits, pricing methods), computer programs (including software used pursuant to a license agreement), customer, prospect and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company.

 

Employees, officers and directors must maintain the confidentiality of Proprietary Information entrusted to them by the Company or other companies, including our collaborators, licensors, licensees, business partners, suppliers and customers, except when disclosure is authorized by a supervisor or legally permitted in connection with reporting illegal activity to the appropriate regulatory authority.  Unauthorized disclosure of any Proprietary Information is prohibited.  Additionally, employees should take appropriate precautions to ensure that confidential

 

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or sensitive business information, whether it is proprietary to the Company or another company, is not communicated within the Company except to employees who have a need to know such information to perform their responsibilities for the Company.

 

Third parties may ask you for information concerning the Company.  Subject to the exceptions noted in the preceding paragraph, employees, officers and directors (other than the Company’s authorized spokespersons) must not discuss Proprietary Information with, or disseminate Proprietary Information to, anyone outside the Company, except as required in the performance of their Company duties and, if appropriate, after a confidentiality agreement is in place.  This prohibition applies particularly to inquiries concerning the Company from the media, market professionals (such as securities analysts, institutional investors, investment advisers, brokers and dealers) and security holders.  All responses to inquiries on behalf of the Company must be made only by the Company’s authorized spokespersons.  If you receive any inquiries of this nature, you must decline to comment and refer the inquirer to your supervisor or one of the Company’s authorized spokespersons. The Company’s policies with respect to public disclosure of internal matters are described more fully in the Company’s Disclosure Policy, which is available on the Company’s Intranet.

 

You also must abide by any lawful obligations that you have to your former employer.  These obligations may include restrictions on the use and disclosure of Proprietary Information, restrictions on the solicitation of former colleagues to work at the Company and any applicable non-competition or non-solicitation obligations.

 

Honest and Ethical Conduct and Fair Dealing

 

Employees, officers and directors should endeavor to deal honestly, ethically and fairly with each other and the Company’s collaborators, licensors, licensees, business partners, suppliers, customers and competitors.  Statements regarding the Company’s therapies and services must not be untrue, misleading, deceptive or fraudulent.  You must not take unfair advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair-dealing practice.

 

Protection and Proper Use of Corporate Assets

 

Employees, officers and directors should seek to protect the Company’s assets, including Proprietary Information.  Theft, carelessness and waste have a direct impact on the Company’s financial performance.  Employees, officers and directors must use the Company’s assets and services solely for legitimate business purposes of the Company and not for any personal benefit or the personal benefit of anyone else.

 

Employees, officers and directors must advance the Company’s legitimate interests when the opportunity to do so arises. You must not take for yourself personal opportunities that are discovered through your position with the Company or the use of property or information of the Company.

 

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Gifts and Gratuities

 

The use of Company funds or assets for gifts, gratuities or other favors to government officials is prohibited, except to the extent such gifts, gratuities or other favors are in compliance with applicable law, insignificant in amount and not given in consideration or expectation of any action by the recipient.  The use of Company funds or assets for gifts to any customer, supplier, or other person doing or seeking to do business with the Company is prohibited, except to the extent such gifts are in compliance with the policies of both the Company and the recipient and are in compliance with applicable law.

 

Employees, officers and directors must not accept, or permit any member of his or her immediate family to accept, any gifts, gratuities or other favors from any person doing or seeking to do business with the Company, other than items of insignificant value.  Any gifts that are not of insignificant value should be returned immediately and reported to your supervisor.  If immediate return is not practical, they should be given to the Company for charitable disposition or such other disposition as the Company, in its sole discretion, believes appropriate.

 

Common sense and moderation should prevail in business entertainment engaged in on behalf of the Company.  Employees, officers and directors should provide, or accept, business entertainment to or from anyone doing business with the Company only if the entertainment is infrequent, modest, intended to serve legitimate business goals and in compliance with applicable law.

 

Bribes and Kickbacks

 

Bribes and kickbacks are criminal acts, strictly prohibited by law. You must not offer, give, solicit or receive any form of bribe or kickback anywhere in the world. The U.S. Foreign Corrupt Practices Act prohibits giving anything of value, directly or indirectly, to officials of foreign governments, departments, agencies or state-controlled entities, foreign political parties or foreign political candidates in order to obtain or retain business. Because the Company is an issuer of securities that have been registered in the United States, this law applies to the Company, its employees, officers, directors and any third party agents of the Company.

 

Accuracy of Books and Records and Public Reports

 

Employees, officers and directors must honestly and accurately report all business transactions.  You are responsible for the accuracy of your records and reports.  Accurate information is essential to the Company’s ability to meet its legal and regulatory obligations.

 

All Company books, records and accounts shall be maintained in accordance with all applicable regulations and standards and accurately reflect the true nature of the transactions they record.  The financial statements of the Company shall conform to generally accepted accounting rules and the Company’s accounting policies.  No undisclosed or unrecorded account or fund shall be established for any purpose.  No false or misleading entries shall be made in the Company’s books or records for any reason, and no disbursement of corporate funds or other corporate property shall be made without adequate supporting documentation.

 

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It is the policy of the Company to provide full, fair, accurate, timely and understandable disclosure in reports and documents filed with, or submitted to, the Securities and Exchange Commission and in other public communications.

 

Concerns Regarding Accounting or Auditing Matters

 

Employees with concerns regarding questionable accounting or auditing matters or complaints regarding accounting, internal accounting controls or auditing matters may confidentially, and anonymously if they wish, submit such concerns or complaints in writing to the Company’s CFO or General Counsel at 1000 Continental Drive, Suite 600, King of Prussia, Pennsylvania 19406, United States of America or may use the toll-free telephone number in Austria at +43 800-802290 and in the United States at +1 844-379-7507. See “Reporting and Compliance Procedures” below.  All such concerns and complaints will be forwarded to the Audit Committee of the Board of Directors, unless they are determined to be without merit by the CFO or General Counsel.  In any event, a record of all complaints and concerns received will be provided to the Audit Committee each fiscal quarter.  Any such concerns or complaints may also be communicated, confidentially and, if you desire, anonymously, directly to any member of the Audit Committee.

 

The Audit Committee will evaluate the merits of any concerns or complaints received by it and authorize such follow-up actions, if any, as it deems necessary or appropriate to address the substance of the concern or complaint.

 

The Company will not discipline, discriminate against or retaliate against any employee who reports a complaint or concern, unless it is determined that the report was made with knowledge that it was false.

 

Dealings with Independent Auditors

 

No employee, officer or director shall, directly or indirectly, make or cause to be made a materially false or misleading statement to an accountant in connection with (or omit to state, or cause another person to omit to state, any material fact necessary in order to make statements made, in light of the circumstances under which such statements were made, not misleading to, an accountant in connection with) any audit, review or examination of the Company’s financial statements or the preparation or filing of any document or report with the SEC.  No employee, officer or director shall, directly or indirectly, take any action to coerce, manipulate, mislead or fraudulently influence any independent public or certified public accountant engaged in the performance of an audit or review of the Company’s financial statements.

 

Waivers of this Code of Business Conduct and Ethics

 

While some of the policies contained in this Code must be strictly adhered to and no exceptions can be allowed, in other cases exceptions may be appropriate.  Any employee or officer who believes that a waiver of any of these policies is appropriate in his or her case should first contact his or her immediate supervisor.  If the supervisor agrees that a waiver is appropriate, the approval of the CFO or General Counsel must be obtained.  The CFO and General Counsel shall be

 

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responsible for maintaining a record of all requests by employees or officers for waivers of any of these policies and the disposition of such requests.

 

Any executive officer or director who seeks a waiver of any of these policies should contact the CFO or General Counsel.  Any waiver of this Code for executive officers or directors or any change to this Code that applies specifically to executive officers or directors may be made only by the Board of Directors of the Company and will be disclosed as required by law or stock exchange regulation.

 

Reporting and Compliance Procedures

 

Every employee, officer and director has the responsibility to ask questions, seek guidance, report suspected violations and express concerns regarding compliance with this Code to his or her supervisor or to the CFO or General Counsel, as described below.  Any employee, officer or director who knows or believes that any other employee or representative of the Company has engaged or is engaging in Company-related conduct that violates applicable law or this Code should report such information to his or her supervisor or to the CFO or General Counsel.  You may report such conduct openly or anonymously without fear of retaliation.  The Company will not discipline, discriminate against or retaliate against any employee who reports such conduct, unless it is determined that the report was made with knowledge that it was false, or who cooperates in any investigation or inquiry regarding such conduct.  Any supervisor who receives a report of a violation of this Code must immediately inform the CFO or General Counsel.

 

You may report violations of this Code, on a confidential or anonymous basis, by contacting the Company’s CFO or General Counsel by mail at 1000 Continental Drive, Suite 600, King of Prussia, Pennsylvania 19406, United States of America. In addition, the Company has established a toll-free telephone number in Austria at +43 800-802290 and in the United States at +1 844-379-7507 where you can leave a recorded message about any violation or suspected violation of this Code. While we prefer that you identify yourself when reporting violations so that we may follow up with you, as necessary, for additional information, you may remain anonymous if you wish.

 

If the CFO or General Counsel receives information regarding an alleged violation of this Code, he or she shall, as appropriate, (a) evaluate such information, (b) if the alleged violation involves an executive officer or a director, inform the Chief Executive Officer and the Board of Directors of the alleged violation, (c) determine whether it is necessary to conduct an informal inquiry or a formal investigation and, if so, initiate such inquiry or investigation and (d) report the results of any such inquiry or investigation, together with a recommendation as to disposition of the matter, to the CEO for action, or if the alleged violation involves an executive officer or a director, report the results of any such inquiry or investigation to the Board of Directors or a committee thereof.  Employees, officers and directors are expected to cooperate fully with any inquiry or investigation by the Company regarding an alleged violation of this Code.  Failure to cooperate with any such inquiry or investigation may result in disciplinary action, up to and including discharge.

 

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The Company shall determine whether violations of this Code have occurred and, if so, shall determine the disciplinary measures to be taken against any employee who has violated this Code.  In the event that the alleged violation involves an executive officer or a director, the Chief Executive Officer and the Board of Directors, respectively, shall determine whether a violation of this Code has occurred and, if so, shall determine the disciplinary measures to be taken against such executive officer or director.

 

Failure to comply with the standards outlined in this Code will result in disciplinary action including, but not limited to, reprimands, warnings, probation or suspension without pay, demotions, reductions in salary, discharge and restitution.  Certain violations of this Code may require the Company to refer the matter to the appropriate governmental or regulatory authorities for investigation or prosecution.  Moreover, any supervisor who directs or approves of any conduct in violation of this Code, or who has knowledge of such conduct and does not immediately report it, also will be subject to disciplinary action, up to and including discharge.

 

Dissemination and Amendment

 

This Code shall be distributed to each new employee, officer and director of the Company upon commencement of his or her employment or other relationship with the Company and shall also be distributed annually to each employee, officer and director of the Company, and each employee, officer and director shall certify that he or she has received, read and understood the Code and has complied with its terms.

 

The Company reserves the right to amend, alter or terminate this Code at any time for any reason.  The most current version of this Code can be found on the Company’s Intranet.

 

This document is not an employment contract between the Company and any of its employees, officers or directors.

 

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Certification

 

I,

 

do hereby certify that:

 

(Print Name Above)

 

 

1.             I have received and carefully read the Code of Business Conduct and Ethics of Nabriva Therapeutics plc.

 

2.             I understand the Code of Business Conduct and Ethics.

 

3.             I have complied and will continue to comply with the terms of the Code of Business Conduct and Ethics.

 

4.             Except as noted below, I do not know or believe that any employee or representative of the Company has engaged or is engaging in Company-related conduct that violates applicable law or the Code of Business Conduct and Ethics.

 

Exceptions (describe, or state “None”):

 

 

 

 

Date:

 

 

 

 

 

(Signature)

 

 

EACH EMPLOYEE, OFFICER AND DIRECTOR IS REQUIRED TO SIGN, DATE AND RETURN THIS CERTIFICATION TO THE CFO OR GENERAL COUNSEL WITHIN 14 DAYS OF ISSUANCE.  FAILURE TO DO SO MAY RESULT IN DISCIPLINARY ACTION.

 



 

SUSPECTED VIOLATIONS SHOULD BE REPORTED TO:

 

Austria: +43 800-802290

 

United States: +1 844-379-7507

 

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Exhibit 99.1

 

 

Nabriva Therapeutics Appoints Carrie Bourdow and Colin Broom to the Board

 

DUBLIN, Ireland, June 26, 2017  — Nabriva Therapeutics plc (NASDAQ:NBRV), a clinical stage biopharmaceutical company engaged in the research and development of novel anti-infective agents to treat serious infections, with a focus on the pleuromutilin class of antibiotics, today announced the appointment of  Carrie Bourdow, Senior Vice President and Chief Commercial Officer of Trevena, Inc., to the Company’s Board of Directors. With the completion of the Company’s redomicile from Austria to Ireland, Colin Broom, M.D., Chief Executive Officer of Nabriva will also join the Board of Directors.

 

“We are delighted to welcome Carrie and Colin to Nabriva’s Board,” said Daniel Burgess, Chairman of Nabriva’s Board and Venture Partner at SV Life Sciences. “Carrie and Colin join the Board at a pivotal in time the company’s evolution, in advance of its first Phase 3 clinical trial readout evaluating its lead compound, lefamulin. Lefamulin represents the first-ever pleuromutilin antibiotic for systemic administration in humans, and the first potential new class of antibiotics in development for community-acquired bacterial pneumonia in more than a decade. Colin’s proven track record in successful drug development and company leadership, coupled with Carrie’s marketing and commercialization expertise in anti-infectives, will be invaluable as the company prepares for the potential commercialization of this therapy.”

 

Ms. Bourdow has served as Senior Vice President and Chief Commercial Officer of Trevena since 2015. Previously, she was Vice President of Marketing, Reimbursement and Operations at Cubist Pharmaceuticals, Inc. Prior to joining Cubist, she spent more than 20 years at Merck & Co., Inc., where she held positions across several therapeutic areas including anti-infectives, acute heart failure and pain. Ms. Bourdow holds a B.A. degree from Hendrix College and earned her M.B.A. from Southern Illinois University.

 

“Nabriva has taken a unique, strategic approach to treating serious bacterial infections and I am honored to serve on its Board,” said Ms. Bourdow. “I look forward to collaborating with these exceptional leaders while providing commercial insight at such a critical stage of growth for this company.”

 

The appointees will serve alongside existing Board members, including Chairman Daniel Burgess of SV Life Sciences; Axel Bolte of HBM Partners; Mark Corrigan, M.D., former President and Chief Executive Officer of Zalicus, Inc.; Chau Quang Khuong of OrbiMed Advisors LLC; George Talbot, M.D., of Talbot Advisors LLC; Charles Rowland, former CEO of Aurinia Pharmaceuticals; and Stephen Webster, CFO of Spark Therapeutics.

 



 

About Nabriva Therapeutics plc

 

Nabriva Therapeutics is a clinical stage biopharmaceutical company engaged in the research and development of novel anti-infectives to treat serious bacterial infections, with a focus on the pleuromutilin class of antibiotics. Nabriva Therapeutics’ medicinal chemistry expertise has enabled targeted discovery of novel pleuromutilins, including both intravenous and oral formulations of its lead product candidate. Nabriva Therapeutics’ lead product candidate, lefamulin, is a novel semi-synthetic pleuromutilin antibiotic with the potential to be the first-in-class available for systemic administration in humans. The Company believes that lefamulin is the first antibiotic with a novel mechanism of action to have reached late-stage clinical development in more than a decade. Lefamulin is currently being evaluated in two global, registrational Phase 3 clinical trials in patients with moderate to severe CABP. Nabriva Therapeutics believes lefamulin is well positioned for use as a first-line empiric monotherapy for the treatment of moderate to severe CABP due to its novel mechanism of action, targeted spectrum of activity, resistance profile, achievement of substantial drug concentration in lung tissue and fluid, oral and IV formulations and a favorable tolerability profile. Nabriva Therapeutics intends to further pursue development of lefamulin for additional indications, including the treatment of acute bacterial skin and skin structure infections (ABSSSI), and is developing a formulation of lefamulin appropriate for pediatric use.

 

Nabriva Therapeutics owns exclusive, worldwide rights to lefamulin, which is protected by composition of matter patents issued in the United States, Europe and Japan.

 

CAUTION CONCERNING FORWARD-LOOKING STATEMENTS

 

This press release contains statements that we believe to be “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. All statements, other than statements of historical fact are forward-looking statements. All statements, other than statements of historical facts, contained in this press release, including statements regarding the development and potential commercialization of lefamulin, are forward-looking statements.

 

These statements relate to future events and involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements relating to the development and potential commercialization of lefamulin to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. The words “anticipate”, “assume”, “believe”, “contemplate”, “continue”, “could”, “estimate”, “expect”, “goal”, “intend”, “may”, “might”, “objective”, “plan”, “potential”, “predict”, “project”, “positioned”, “seek”, “should”, “target”, “will”, “would”, or the negative of these terms or other similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Examples of these forward-looking statements include the statements made by Mr. Burgess. These forward-looking statements are based on current expectations, and management’s beliefs and assumptions are not guarantees of future performance or development and involve known and unknown risks, uncertainties and other factors. Additional information concerning these and other factors is contained in the filings made by Nabriva Therapeutics AG (“Nabriva AG”) with the Securities and Exchange Commission, including in its 2016 Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed on March 24, 2017 and Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2017, filed on May 10, 2017. All forward-looking statements speak only as of the date of this communication. Neither Nabriva AG nor Nabriva Therapeutics assume any obligation, and disclaims any obligation, to update the information contained in this communication.

 

Nabriva Therapeutics Contacts:

INVESTORS

David Garrett

Vice President, Corporate Controller and

Head of Investor Relations

Nabriva Therapeutics plc

David.Garrett@nabriva.com

610-816-6657

 

MEDIA

Katie Engleman

Pure Communications, Inc.

Katie@purecommunicationsinc.com

910-509-3977

 


Exhibit 99.2

 

Nabriva Therapeutics plc Successfully Concludes Tender Offer for

Outstanding Common Shares of Nabriva Therapeutics AG and

Outstanding American Depositary Shares of Nabriva Therapeutics AG

 

DUBLIN, Ireland — June 26, 2017 — Nabriva Therapeutics plc (“ Nabriva Therapeutics ”) today announced that it has successfully concluded its previously announced tender offer related to the exchange of common shares (“ Nabriva AG Common Shares ”) of Nabriva Therapeutics AG (“ Nabriva AG ”) and American depositary shares of Nabriva AG (Nasdaq: NBRV) (“ Nabriva AG ADSs ”) for ordinary shares (“ Nabriva Ireland Shares ”) of Nabriva Therapeutics (the “ Exchange Offer ”).

 

The Exchange Offer expired at 5:00 p.m., New York City time (11:00 p.m., Austria time), on June 23, 2017.  At the time of expiration of the Exchange Offer, 461,266 Nabriva AG Common Shares and 22,204,595 Nabriva AG ADSs (excluding 22,123 Nabriva AG ADSs tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), representing approximately 98.5% of the total issued share capital of Nabriva AG, had been validly tendered pursuant to the Exchange Offer and not properly withdrawn.

 

Trading of Nabriva Ireland Shares for which the Nabriva AG Common Shares and Nabriva AG ADSs were exchanged is expected to begin on Monday, June 26, 2017 on the NASDAQ Global Select Market under the ticker symbol NBRV.

 

ABOUT NABRIVA THERAPEUTICS

 

Nabriva Therapeutics is a clinical stage biopharmaceutical company engaged in the research and development of novel anti-infectives to treat serious bacterial infections, with a focus on the pleuromutilin class of antibiotics. Nabriva Therapeutics’s medicinal chemistry expertise has enabled targeted discovery of novel pleuromutilins, including both intravenous and oral formulations of its lead product candidate. Nabriva Therapeutics’s lead product candidate, lefamulin, is a novel semi-synthetic pleuromutilin antibiotic with the potential to be the first-in-class available for systemic administration in humans. Nabriva Therapeutics believes that lefamulin is the first antibiotic with a novel mechanism of action to have reached late-stage clinical development in more than a decade. Lefamulin is currently being evaluated in two global, registrational Phase 3 clinical trials in patients with moderate to severe CABP. Nabriva Therapeutics believes that lefamulin is well positioned for use as a first-line empiric monotherapy for the treatment of moderate to severe CABP due to its novel mechanism of action, targeted spectrum of activity, resistance profile, achievement of substantial drug concentration in lung tissue and fluid, oral and IV formulations and a favorable tolerability profile.

 

Nabriva Therapeutics owns exclusive, worldwide rights to lefamulin, which is protected by composition of matter patents issued in the United States, Europe and Japan.

 

CAUTION CONCERNING FORWARD-LOOKING STATEMENTS

 

This press release contains statements that we believe to be “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. All statements, other than statements of historical fact are forward-looking statements. All statements, other than statements of historical facts, contained in this press release, including statements regarding the success and consequences of the Exchange Offer, are forward-looking statements.

 

These statements relate to future events or to the conclusion of the Exchange Offer and involve known and unknown risks, uncertainties and other factors which may cause the actual results, performance or achievements relating to the conclusion of the Exchange Offer and commencement of trading of the Nabriva Ireland Shares on the NASDAQ Global Select Market to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. The words “anticipate”, “assume”, “believe”, “contemplate”, “continue”, “could”, “estimate”, “expect”, “goal”, “intend”, “may”, “might”, “objective”, “plan”, “potential”, “predict”, “project”, “positioned”, “seek”, “should”, “target”, “will”, “would”, or the negative of these terms or other similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. These forward-looking statements are based on current expectations, and management’s beliefs and assumptions are not guarantees of future performance or development and involve known and unknown

 



 

risks, uncertainties and other factors. Additional information concerning these and other factors is contained in the filings made by Nabriva AG with the Securities and Exchange Commission, including in its 2016 Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed on March 24, 2017 and Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2017, filed on May 10, 2017. All forward-looking statements speak only as of the date of this communication. Neither Nabriva AG nor Nabriva Therapeutics assume any obligation, and disclaims any obligation, to update the information contained in this communication.

 

Nabriva Therapeutics Contacts:

INVESTORS

David Garrett

Vice President, Corporate Controller and

Head of Investor Relations

Nabriva Therapeutics plc

David.Garrett@nabriva.com

610-816-6657

 

MEDIA

Katie Engleman

Pure Communications, Inc.

Katie@purecommunicationsinc.com

910-509-3977