Exhibit 5.1
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A&L Goodbody Solicitors
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Dublin
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International Financial Services Centre
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Belfast
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25-28 North Wall Quay, Dublin 1
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London
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D01 H104
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New York
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T +353 1 649 2000
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San Francisco
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Dx: 29 Dublin | www.algoodbody.com
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Palo Alto
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Date
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25 July 2018
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Our Ref
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01425305
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Your Ref
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Nabriva Therapeutics plc
25-28 North Wall Quay
IFSC
Dublin 1
Ireland
Nabriva Therapeutics plc (the Company)
Dear Sirs
We are acting as Irish counsel to the Company, a public limited company incorporated under the laws of Ireland (registration number 599588), in connection with the proposed registration by the Company
of 2,468,301 ordinary shares of the Company, nominal value $0.01 per share (the
Shares
), pursuant to a Registration Statement on Form S-8 (the
Registration Statement
) to be filed by the Company with the U.S. Securities and Exchange Commission (
SEC
) under the Securities Act of 1933, as amended. The Shares are issuable under (i) the Company’s 2017 Stock Incentive Plan, as adopted by the Company’s shareholders on September 15, 2017 (the
Plan
, including any amendments, restatements or sub-plans thereof); (ii) an Inducement Option Award Agreement dated 25 July 2018, by and between the Company and Theodore Schroeder (the
Option Agreement
); and (iii) an Inducement Performance-Based Share Award Agreement dated 25 July 2018, by and between the Company and Theodore Schroeder (the
PRSU Agreement
, and together with the Plan, the Option Agreement and the PRSU Agreement, the
Plan and Award Agreements
).
In connection with this Opinion, we have reviewed copies of such corporate records of the Company as we have deemed necessary as a basis for the opinion hereinafter expressed. In rendering this opinion, we have examined and have assumed the truth and accuracy of the contents of such documents and certificates of officers of the Company and of public officials as to factual matters and have conducted such searches in public registries in Ireland as we have deemed necessary or appropriate for the purposes of this opinion but have made no independent investigation regarding such factual matters. In our examination we have assumed the truth and accuracy of the information contained in such documents, the genuineness of all the signatures, authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such documents.
We have further assumed:
1.
that as of today’s date and at each time Shares are issued, none of the resolutions and authorities of the shareholders or directors of the Company upon which we have relied have been varied, amended or revoked in any respect or have expired, and that the Shares will be issued in accordance with such resolutions and authorities and the terms of the Plan, the Option Agreement or the PRSU Agreement;
PM Law • CE Gill • EM FitzGerald • JG Grennan • J Coman • PD White • VJ Power • LA Kennedy • SM Doggett • B McDermott • C Duffy • PV Maher • S O’Riordan • MP McKenna • KA Feeney M Sherlock • EP Conlon • E MacNeill • KP Allen • EA Roberts • C Rogers • G O’Toole • JN Kelly • N O’Sullivan • MJ Ward • AC Burke • D Widger • C Christle • S O’Croinin • JW Yarr • DR Baxter A McCarthy • JF Whelan • JB Somerville • MF Barr • AM Curran • A Roberts • M Dale • RM Moore • D Main • J Cahir • M Traynor • PM Murray • N Ryan • P Walker • K Furlong • PT Fahy • M Rasdale D Inverarity • M Coghlan • DR Francis • A Casey • B Hosty • M O’Brien • K Killalea • L Mulleady • K Ryan • E Hurley • G Stanley • D Dagostino • E Keane • C Clarkin • R Grey • R Lyons • J Sheehy • C Morrissey C McLoughlin • C Carroll • SE Carson • P Diggin • J Williams • A O’Beirne • MD Cole • G Conheady • J Dallas • SM Lynch • M McElhinney• C Owens • AD Ion • K O’Connor • JH Milne • T Casey • M Doyle CJ Comerford • R Marron • D Berkery
Consultants: SW Haughey • Professor JCW Wylie • AF Browne • MA Greene • AV Fanagan • JA O’Farrell • IB Moore
2.
that at each time Shares will be issued, the Company will then have sufficient authorised but unissued share capital to allow for the issue of such Shares;
3.
that any issue of Shares pursuant to the Plan and Award Agreements will be paid up in consideration of the receipt by the Company prior to, or simultaneously with, the issue of the Shares of cash at least equal to the nominal value of such Shares and that where Shares are issued under a Plan without the requirement for the payment of cash consideration by or on behalf of the relevant beneficiary, then such Shares shall either be fully paid up by the Company or one of its subsidiaries within the time permitted by Section 1027 of the Companies Act 2014 of Ireland (the
Act
) (and, in the case of the Company or a subsidiary incorporated in Ireland, in a manner permitted by Section 82(6) and 1043 of the Act) or issued for consideration as set out in Section 1028(2) of the Act;
4.
that the filing of the Registration Statement with the SEC has been authorised by all necessary actions under all applicable laws other than Irish law;
5.
that when filed with the SEC, the Registration Statement will not differ in any material respect from the drafts that we have examined;
6.
that at the time of the grant by any committee of the board of directors of the Company, or any other duly authorised representative of the Company, of an award or other allotment and issue of a Share under the Plan and Award Agreements, that such committee has been duly constituted and remains a duly constituted committee of the board of directors of the Company having the necessary powers and authorities to grant awards and issue the Shares and in the case of an authorised representative, that such person has the necessary powers and authorities to grant awards and issue the Shares; and
7.
the absence of fraud on the part of the Company and its respective officers, employees, agents and advisors.
Having made such further investigation and reviewed such other documents as we have considered requisite or desirable, subject to the foregoing and to the within qualifications and assumptions, and provided that the Registration Statement has become effective, we are of the opinion that the Shares have been duly authorised and, when issued (and, if required, paid for in either cash or services or otherwise) in accordance with the
Plan, the Option Agreement or the PRSU Agreement and the options or other equity awards granted or to be granted thereunder, will be validly issued, fully paid and not subject to calls for any additional payments (“non-assessable”) (except for Shares issued pursuant to deferred payment arrangements, which shall be fully paid upon the satisfaction of such payment obligations).
In rendering this opinion we have confined ourselves to matters of Irish law. We express no opinion on any laws other than the laws of Ireland (and the interpretation thereof) in force as at the date hereof. This Opinion speaks only as of its date. We are not under any obligation to update this Opinion from time to time, nor to notify you of any change of law, facts or circumstances referred to or relied upon in the giving of this Opinion.
This Opinion is given solely for the benefit of the addressee of this Opinion and may not be relied upon by any other person without our prior written consent, provided, however, that it may be relied upon by persons entitled to rely on it pursuant to applicable provisions of US federal securities laws.
This Opinion is also strictly confined to the matters expressly stated herein and is not to be read as extending by implication or otherwise to any other matter.
We hereby consent to the filing of this Opinion with the SEC as an exhibit to the Registration Statement.
2
The Opinion is governed by and construed in accordance with the laws of Ireland.
Yours faithfully
/s/ A&L Goodbody
A&L Goodbody
3
Exhibit 99.2
NABRIVA THERAPEUTICS PLC
NONSTATUTORY SHARE OPTION AGREEMENT
This Share Option Agreement (this “
Agreement
”) is made between Nabriva Therapeutics plc, a public limited company organized under the laws of Ireland (the “
Company
”), and [ ] (the “
Participant
”).
NOTICE OF GRANT
I.
Participant Information
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Participant: [ ]
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Address: [ ]
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II.
Grant Information
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Grant Date: July [ ], 2018
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Number of Shares: 850,000
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Exercise Price Per Share: $[ ](1)
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Vesting Commencement Date: July [ ], 2018(2)
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Type of Option: Nonstatutory Share Option
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III.
Vesting Table
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Vesting Date
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Shares that Vest
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First anniversary of the Vesting Commencement Date
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25%
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End of each successive one-month period following the first anniversary of the Vesting Commencement Date until the 4
th
anniversary of the Vesting Commencement Date
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2.0833%
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IV.
Final Exercise Date
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5:00 pm Eastern time on Date: July [ ](3), 2028
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This Agreement includes this Notice of Grant and the following Exhibits, which are expressly incorporated by reference in their entirety herein:
Exhibit A — General Terms and Conditions
Exhibit B — Notice of Share Option Exercise
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
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NABRIVA THERAPEUTICS PLC
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PARTICIPANT
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SPOUSAL CONSENT (if applicable)
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Name:
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Name:
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Name:
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Title:
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(1) To equal closing price per share of the Ordinary Shares on the Nasdaq Global Select Market on the date of grant.
(2) Effective Date of Employment Agreement.
(3) Day to be grant date minus one day.
Nonstatutory Share Option Agreement
EXHIBIT A
GENERAL TERMS AND CONDITIONS
For valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.
Grant of Option
. This Agreement evidences the grant by the Company, on the grant date (the “
Grant Date
”) set forth in the Notice of Grant that forms part of this Agreement (the “
Notice of Grant
”), to the Participant of an option to purchase, in whole or in part, on the terms provided herein, the number of ordinary shares of the Company (the “
Ordinary Shares
”) set forth in the Notice of Grant (the “
Shares
”) at the exercise price per Share set forth in the Notice of Grant (the “
Exercise Price
”). Unless earlier terminated, this option shall expire at the time and on the date set forth in the Notice of Grant (the “
Final Exercise Date
”).
The option evidenced by this agreement was granted to the Participant pursuant to the inducement grant exception under Nasdaq Stock Market Rule 5635(c)(4), and not pursuant to the Company’s 2017 Share Incentive Plan or any share incentive plan of the Company, as an inducement that is material to the Participant’s employment with the Company.
It is intended that the option evidenced by this Agreement shall not be an incentive share option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “
Code
”). Except as otherwise indicated by the context, the term “
Participant
”, as used in this option, shall be deemed to include any person who acquires the right to exercise this option validly under its terms.
2.
Vesting Schedule
.
This option will become exercisable (“
vest
”) in accordance with the Vesting Table set forth in the Notice of Grant. Notwithstanding anything to the contrary in this Section 2 or in Section 6, this option shall be subject to the accelerated vesting provisions set forth in Sections and 8(b) and 8(c) of the Employment Agreement, dated as of July 23, 2018, between the Participant and Nabriva Therapeutics US, Inc., the Company’s wholly owned subsidiary, or any successor agreement thereto (the “
Employment Agreement
”).
The right of exercise shall be cumulative so that to the extent the option is not exercised in any period to the maximum extent permissible it shall continue to be exercisable, in whole or in part, with respect to all Shares for which it is vested until the earlier of the Final Exercise Date or the termination of this option under Section 3 hereof.
3.
Exercise of Option
.
(a)
Form of Exercise
. Each election to exercise this option shall be accompanied by a completed Notice of Share Option Exercise in the form attached hereto as
Exhibit B
, signed by the Participant, and received by the Company at its principal office, accompanied by this Agreement, and payment in full in the manner provided as follows:
(1)
in cash or by check, payable to the order of the Company;
(2)
by (i) delivery of an irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price and any required tax withholding or (ii) delivery by the Participant to the Company of a copy of irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the exercise price and any required tax withholding;
(3)
to the extent approved by the Board of Directors of the Company (the “
Board
”), and subject to compliance with applicable law, by delivery (either by actual delivery or attestation) of Ordinary Shares
owned by the Participant valued at their fair market value (valued in the manner determined by (or in a manner approved by) the Board),
provided
(i) such method of payment is then permitted under applicable law, (ii) such Ordinary Shares, if acquired directly from the Company, were owned by the Participant for such minimum period of time, if any, as may be established by the Board and (iii) such Ordinary Shares are not subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements;
(4)
to the extent approved by the Board, and subject to compliance with applicable law, by delivery of a notice of “net exercise” to the Company, as a result of which the Participant would receive (i) the number of Shares underlying the portion of this option being exercised, less (ii) such number of Shares as is equal to (A) the aggregate exercise price for the portion of this option being exercised divided by (B) the fair market value of an Ordinary Share (valued in the manner determined by (or in a manner approved by) the Board) on the date of exercise;
(5)
to the extent permitted by applicable law and approved by the Board, by payment of such other lawful consideration as the Board may determine; or
(6)
by any combination of the above permitted forms of payment.
The Participant may purchase less than the number of Shares covered hereby,
provided that
no partial exercise of this option may be for any fractional share. Ordinary Shares subject to this option will be delivered by the Company as soon as practicable following exercise.
(b)
Continuous Relationship with the Company Required
. Except as otherwise provided in this Section 3, this option may not be exercised unless the Participant, at the time he or she exercises this option, is, and has been at all times since the Grant Date, an employee, officer or director of, or consultant or advisor to, the Company or any parent or subsidiary of the Company as defined in Section 424(e) or (f) of the Code or any other entity the employees, officers, directors, consultants, or advisors of which are eligible to receive option grants from the Company (an “
Eligible Participant
”). If the Participant provides services to a subsidiary of the Company, any references in this Agreement to provision of services to the Company shall instead be deemed to refer to service with such subsidiary.
(c)
Termination of Relationship with the Company
. If the Participant ceases to be an Eligible Participant for any reason, then, except as provided in paragraphs (d) and (e) below, the right to exercise this option shall terminate three months after such cessation (but in no event after the Final Exercise Date),
provided that
this option shall be exercisable only to the extent that the Participant was entitled to exercise this option on the date of such cessation. Notwithstanding the foregoing, if the Participant, prior to the Final Exercise Date, violates the non-competition or confidentiality provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and the Company, the right to exercise this option shall terminate immediately upon such violation.
(d)
Exercise Period Upon Death or Disability
. If the Participant dies or becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such service relationship for “
cause
” as specified in paragraph (e) below, this option shall be exercisable, within the period of one year following the date of death or disability of the Participant, by the Participant (or in the case of death by an authorized transferee),
provided that
this option shall be exercisable only to the extent that this option was exercisable by the Participant on the date of his or her death or disability, and further
provided that
this option shall not be exercisable after the Final Exercise Date.
(e)
Termination for Cause
. If, prior to the Final Exercise Date, the Participant’s service relationship with the Company is terminated by the Company for Cause (as defined in the Employment Agreement), the right to exercise this option shall terminate immediately upon the effective date of such termination. If, prior to the Final Exercise Date, the Participant is given notice by the Company of the termination of his service relationship by the Company for Cause, and the effective date of such termination is subsequent to the date of the delivery of such notice, the right to exercise this option shall be suspended from the time of the delivery of such notice until the earlier of (i) such time as it is determined or otherwise agreed that the Participant’s service relationship shall not be terminated for Cause as provided in such notice or (ii) the effective date of such termination (in which case the right
to exercise this option shall, pursuant to the preceding sentence, terminate immediately upon the effective date of such termination). The Participant’s service relationship shall be considered to have been terminated for Cause if the Company determines, within 30 days after the Participant’s termination of service, that termination for Cause was warranted.
4.
Withholding
. No Shares will be issued pursuant to the exercise of this option unless and until the Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any federal, state or local withholding taxes (or equivalent in jurisdictions outside the United States, as applicable) required by law to be withheld in respect of this option. The Participant must satisfy all applicable federal, state, and local or other income and employment tax withholding obligations before the Company will deliver share certificates or otherwise recognize ownership of Ordinary Shares under this option. The Company may elect to satisfy the withholding obligations through additional withholding on salary or wages. If the Company elects not to or cannot withhold from other compensation, the Participant must pay the Company the full amount, if any, required for withholding or have a broker tender to the Company cash equal to the withholding obligations. Payment of withholding obligations is due before the Company will issue any shares on exercise of this option or at the same time as payment of the exercise price, unless the Company determines otherwise. If approved by a Committee (as defined below), the Participant may satisfy the tax obligations in whole or in part by delivery (either by actual delivery or attestation) of Ordinary Shares, including Shares retained from this option, valued at their fair market value (valued in the manner determined by (or in a manner approved by) the Company);
provided
,
however
, except as otherwise provided by the Committee, that the total tax withholding where shares are being used to satisfy such tax obligations cannot exceed the Company’s minimum statutory withholding obligations (based on minimum statutory withholding rates for federal and state tax purposes, including payroll taxes, that are applicable to such supplemental taxable income), except that, to the extent that the Company is able to retain Ordinary Shares having a fair market value (determined by, or in a manner approved by, the Company) that exceeds the statutory minimum applicable withholding tax without financial accounting implications or the Company is withholding in a jurisdiction that does not have a statutory minimum withholding tax, the Company may retain such number of Ordinary Shares (up to the number of shares having a fair market value equal to the maximum individual statutory rate of tax (determined by, or in a manner approved by, the Company)) as the Company shall determine in its sole discretion to satisfy the tax liability associated with this option. Shares used to satisfy tax withholding requirements cannot be subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements.
5.
Transfer Restrictions
. This option may not be sold, assigned, transferred, pledged or otherwise encumbered by the Participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution or pursuant to a qualified domestic relations order, and, during the lifetime of the Participant, this option shall be exercisable only by the Participant;
provided
,
however
, that the Board may permit for the gratuitous transfer of this option by the Participant to or for the benefit of any immediate family member, family trust or other entity established for the benefit of the Participant and/or an immediate family member thereof if the Company would be eligible to use a Form S-8 under the Securities Act of 1933, as amended for the registration of the sale of the Ordinary Shares subject to this option to such proposed transferee;
provided further
, that the Company shall not be required to recognize any such permitted transfer until such time as such permitted transferee shall, as a condition to such transfer, deliver to the Company a written instrument in form and substance satisfactory to the Company confirming that such transferee shall be bound by all of the terms and conditions of this option. References to the Participant, to the extent relevant in the context, shall include references to authorized transferees. For the avoidance of doubt, nothing contained in this Section 5 shall be deemed to restrict a transfer to the Company.
6.
Adjustments for Changes in Ordinary Shares and Certain Other Events
.
(a)
Changes in Capitalization
. In the event of any alteration or reorganization whatsoever taking place in the capital structure of the Company whether by way of share split, reverse share split, share dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other similar change in capitalization or event, or any dividend or distribution to holders of Ordinary Shares other than an ordinary cash dividend, the number and class of securities and exercise price per share of this option shall be equitably adjusted by the Company in the manner determined by the Board. Without limiting the generality of the foregoing, in the event the Company effects a split of the Ordinary Shares by means of a share dividend and the exercise price of and the number of shares subject to this option are adjusted as of the date of the distribution of the dividend (rather than as of the record date for such dividend), then then the Participant, if he exercises this option between the record date and the distribution date for
such share dividend shall be entitled to receive, on the distribution date, the share dividend with respect to the Ordinary Shares acquired upon exercise of this option, notwithstanding the fact that such shares were not outstanding as of the close of business on the record date for such share dividend.
(b)
Reorganization Events
. A “
Reorganization Event
” shall mean: (a) any merger or consolidation of the Company with or into another entity as a result of which all of the Ordinary Shares of the Company are converted into or exchanged for the right to receive cash, securities or other property or is canceled, (b) any transfer or disposition of all of the Ordinary Shares of the Company for cash, securities or other property pursuant to a share exchange or other transaction or (c) any liquidation or dissolution of the Company. For the avoidance of doubt, any one or more of the above events may be effected pursuant to (A) a compromise or arrangement sanctioned by the court under Chapter 1 of Part 9 of the Companies Act 2014 of the Republic of Ireland or (B) otherwise under Part 9 of the Companies Act 2014 of the Republic of Ireland or (C) otherwise under the Companies Act 2014 of the Republic of Ireland.
In connection with a Reorganization Event, the Board may take any one or more of the following actions with respect to this option (or any portion thereof) on such terms as the Board determines: (i) provide that this option shall be assumed, or a substantially equivalent option shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), (ii) upon written notice to the Participant, provide that the unexercised portion of this option will terminate immediately prior to the consummation of such Reorganization Event unless exercised by the Participant (to the extent then exercisable) within a specified period following the date of such notice, (iii) provide that this option shall become exercisable, realizable or deliverable, or restrictions applicable to this option shall lapse, in whole or in part prior to or upon such Reorganization Event, (iv) in the event of a Reorganization Event under the terms of which holders of Ordinary Shares will receive upon consummation thereof a cash payment for each share surrendered in the Reorganization Event (the “
Acquisition Price
”), make or provide for a cash payment to the Participant with respect to this option equal to (A) the number of Ordinary Shares subject to the vested portion of this option (after giving effect to any acceleration of vesting that occurs upon or immediately prior to such Reorganization Event) multiplied by (B) the excess, if any, of (I) the Acquisition Price over (II) the exercise price of this option and any applicable tax withholdings, in exchange for the termination of this option, (v) provide that, in connection with a liquidation or dissolution of the Company, this option shall convert into the right to receive liquidation proceeds (net of the exercise price thereof and any applicable tax withholdings) and (vi) any combination of the foregoing.
For purposes of clause (i) above, this option shall be considered assumed if, following consummation of the Reorganization Event, this option confers the right to purchase, for each Ordinary Share subject to this option immediately prior to the consummation of the Reorganization Event, the consideration (whether cash, securities or other property) received as a result of the Reorganization Event by holders of Ordinary Shares for each Ordinary Share held immediately prior to the consummation of the Reorganization Event (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Ordinary Shares);
provided
,
however
, that if the consideration received as a result of the Reorganization Event is not solely ordinary shares of the acquiring or succeeding corporation (or an affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation, provide for the consideration to be received upon the exercise of this option to consist solely of such number of ordinary shares of the acquiring or succeeding corporation (or an affiliate thereof) that the Board determined to be equivalent in value (as of the date of such determination or another date specified by the Board) to the per share consideration received by holders of outstanding Ordinary Shares as a result of the Reorganization Event.
7.
Miscellaneous
.
(a)
No Right To Employment or Other Status
. The grant of this option shall not be construed as giving the Participant the right to continued employment or any other relationship with the Company. The Company expressly reserves the right at any time to dismiss or otherwise terminate its relationship with the Participant free from any liability or claim hereunder, except as otherwise expressly provided herein or provided for in the Employment Agreement.
(b)
No Rights As Shareholder; Clawback
. Subject to the provisions of this option, the Participant shall not have any rights as a shareholder with respect to any Ordinary Shares to be issued with respect to this option
until becoming the record holder of such shares. In accepting this option, the Participant agrees to be bound by any clawback policy the Company has in effect or may adopt in the future.
(c)
Entire Agreement
. This Agreement, together with the Employment Agreement, constitute the entire agreement between the parties, and supersede all prior agreements and understandings, relating to the subject matter hereof.
(d)
Amendment
. Except with respect to any vesting terms set forth in the Employment Agreement, the Board may amend, modify or terminate this Agreement, including but not limited to, substituting another option of the same or a different type and changing the date of exercise or realization. Notwithstanding the foregoing, the Participant’s consent to such action shall be required unless (i) the Board determines that the action, taking into account any related action, would not materially and adversely affect the Participant’s rights under this Agreement, or (ii) the change is permitted under Section 6 and the Employment Agreement.
(e)
Acceleration
. The Board may at any time provide that this option shall become immediately exercisable in whole or in part, free from some or all restrictions or conditions, or otherwise realizable in whole or in part, as the case may be.
(f)
Conditions on Delivery of Shares
. Notwithstanding any other provision of this Agreement, (a) the Company shall not be obliged to issue any Ordinary Shares pursuant to this option unless at least the par value of such newly issued Ordinary Shares has been fully paid in advance in accordance with all applicable law (which requirement may mean the Participant is obliged to make such payment) and (b) the Company will not be obligated to deliver any Ordinary Shares pursuant to this Agreement until (i) all conditions of this Agreement have been met to the satisfaction of the Company, (ii) in the opinion of the Company’s counsel, all other legal matters in connection with the issuance and delivery of such shares have been satisfied, including any applicable securities laws and regulations and any applicable stock exchange or stock market rules and regulations, and (iii) the Participant has executed and delivered to the Company such representations or agreements as the Company may consider appropriate to satisfy the requirements of any applicable laws, rules or regulations.
(g)
Administration by Board
. The Board will administer this Agreement and may construe and interpret the terms hereof. Subject to the terms and provisions of the Employment Agreement, the Board may correct any defect, supply any omission or reconcile any inconsistency in this Agreement. No director or person acting pursuant to the authority delegated by the Board shall be liable for any action or determination relating to or under this Agreement made in good faith.
(h)
Appointment of Committees
. To the extent permitted by applicable law, the Board may delegate any or all of its powers hereunder to one or more committees or subcommittees of the Board (a “
Committee
”). All references herein to the “Board” shall mean the Board or a Committee to the extent that the Board’s powers or authority hereunder have been delegated to such Committee.
(i)
Severability
. The invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision hereof, and each such other provision shall be severable and enforceable to the extent permitted by law.
(j)
Governing Law
. This Agreement shall be governed by, except to the extent preempted by other applicable laws (1) with respect to the corporate law requirements applicable to the Company, the validity and authorization of the issuance of Ordinary Shares in respect of this option and similar matters, the laws of Ireland (without reference to conflict of law principles thereof) and (2) with respect to all other matters relating to this option, the laws of the State of Delaware, excluding choice-of-law principles of the law of that state.
(k)
Counterparts
. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one in the same instrument.
[Remainder of Page Intentionally Left Blank]
EXHIBIT B
NOTICE OF SHARE OPTION EXERCISE
[DATE]
Nabriva Therapeutics plc
25 — 28 North Wall Quay
Dublin 1
Ireland
Dear Sir or Madam:
I am the holder of a Nonstatutory Share Option granted to me pursuant to that certain Nonstatutory Share Option Agreement with the Company dated [July ], 2018 for the purchase of [ ] ordinary shares of the Company at a purchase price of $[ ] per share.
I hereby exercise my option to purchase [ ] ordinary shares (the “
Shares
”), for which I have enclosed payment in the amount of $[ ], the aggregate purchase price for the Shares. Please register my share certificate as follows:
Exhibit 99.3
NABRIVA THERAPEUTICS PLC
RESTRICTED SHARE UNIT AGREEMENT (PERFORMANCE BASED)
This Restricted Share Unit Agreement (this “
Agreement
”) is made between Nabriva Therapeutics plc, a public limited company organized under the laws of Ireland (the “
Company
”), and [ ], (the “
Participant
”).
NOTICE OF GRANT
I.
Participant Information
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Participant:
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Participant Address:
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II.
Grant Information
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Grant Date:
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July [ ], 2018
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Number of Restricted Share Units:
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150,000
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III.
Vesting Table
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Vesting Date
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Number of Restricted Share
Units that Vest
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Upon achievement of the performance condition (the “
Performance Condition
”) set forth on Schedule 1 attached hereto (“
Schedule 1
”).
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75,000
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On the first anniversary of achievement of the Performance Condition.
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75,000
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This Agreement includes this Notice of Grant and the following Exhibits and Schedules, which are expressly incorporated by reference in their entirety herein:
Exhibit A — General Terms and Conditions
Schedule 1 — Vesting Schedule
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
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NABRIVA THERAPEUTICS PLC
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PARTICIPANT
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Name:
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Name:
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Title:
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Restricted Share Unit Agreement (Performance Based)
EXHIBIT A
GENERAL TERMS AND CONDITIONS
For valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1.
Award of Restricted Share Units
. This Agreement evidences the grant by the Company, on the grant date (the “
Grant Date
”) set forth in the Notice of Grant that forms part of this Agreement (the “
Notice of Grant
”), to the Participant, subject to the terms and conditions set forth in this Agreement, of an award with respect to the number of restricted share units (the “
RSUs
”) set forth in the Notice of Grant. Each RSU represents the right to receive one ordinary share of the Company (an “
Ordinary Share
”) upon vesting of the RSU, subject to the terms and conditions set forth herein.
The RSUs evidenced by this agreement were granted to the Participant pursuant to the inducement grant exception under Nasdaq Stock Market Rule 5635(c)(4), and not pursuant to the Company’s 2017 Share Incentive Plan or any share incentive plan of the Company, as an inducement that is material to the Participant’s employment with the Company.
2.
Vesting
. The RSUs shall vest in accordance with the Vesting Table set forth in the Notice of Grant. Upon the vesting of the RSUs, the Company will deliver to the Participant, for each RSU that becomes vested, one Ordinary Share, subject to the payment of any taxes pursuant to Section 4. Each Ordinary Share will be delivered to the Participant as soon as practicable following each vesting date, but in any event within 30 days of such date and in no event later than March 15 of the calendar year following the year in which the right becomes vested.
Notwithstanding anything to the contrary in this Section 2 or in Section 6, the RSUs shall be subject to the accelerated vesting provisions set forth in Sections 8(b) and 8(c) of the Employment Agreement, dated as of July 23, 2018, between the Participant and
Nabriva Therapeutics US, Inc., the Company’s wholly owned subsidiary, or any successor agreement thereto (the “
Employment Agreement
”).
3.
Forfeiture of Unvested RSUs Upon Cessation of Service
. In the event that the Participant ceases to perform services to the Company for any reason or no reason, with or without cause, all of the RSUs that are unvested as of the time of such cessation shall be forfeited immediately and automatically to the Company, without the payment of any consideration to the Participant, effective as of such cessation. The Participant shall have no further rights with respect to the unvested RSUs or any Ordinary Shares that may have been issuable with respect thereto. If the Participant provides services to a subsidiary of the Company, any references in this Agreement to provision of services to the Company shall instead be deemed to refer to service with such subsidiary.
4.
Tax Matters
.
(a)
Acknowledgments; No Section 83(b) Election
. The Participant acknowledges that he or she is responsible for obtaining the advice of the Participant’s own tax advisors with respect to the award of RSUs and the Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related items related to participation in the Plan and legally applicable to the Participant (“
Tax-Related Items
”) relating to the RSUs. The Participant understands that the Participant (and not the Company) shall be responsible for the Participant’s Tax-Related Items that may arise in connection with the grant, vesting and/or settlement of the RSUs, the subsequent sale of Ordinary Shares acquired pursuant to such settlement and the receipt of dividends. The Participant acknowledges that no election under Section 83(b) of the Internal Revenue Code, as amended, is available with respect to RSUs and that the Company is under no obligation to structure the terms of the grant or any aspect of the RSUs to reduce or eliminate the Participant’s liability for Tax-Related Items or achieve any particular tax result. Further, if the Participant becomes subject to tax in more than one jurisdiction between the Grant Date and the date of any relevant taxable event, as applicable, the Participant acknowledges that the Company may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
(b)
Withholding
. The Participant acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Participant any federal, state, local or other Tax-Related Items of any kind (including Tax-Related Items of jurisdictions outside the United States, as applicable) required by law to be withheld with respect to the RSUs. At such time as the Participant is not aware of any material nonpublic information about the Company or the Ordinary Shares, the Participant shall execute the instructions set forth in
Appendix A
attached hereto (the “
Automatic Sale Instructions
”) as the means of satisfying such Tax-Related Items. If the Participant does not execute the Automatic Sale Instructions prior to a taxable event, then the Participant agrees that if under applicable law the Participant will owe Tax-Related Items at such time on any portion of the Award the Company shall be entitled to satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following:
(1)
immediate payment from the Participant of the amount to be withheld by the Company; or
(2)
withholding from wages or other cash compensation paid to the Participant by the Company.
The Company shall not deliver any Ordinary Shares to the Participant until it is satisfied that all required withholdings have been made and the Participant has complied with the above obligations in connection with Tax-Related Items.
5.
Transfer Restrictions
. The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of or encumber, by operation of law or otherwise (collectively “transfer”) any RSUs, or any interest therein. The Company shall not be required to treat as the owner of any RSUs or issue any Ordinary Shares to any transferee to whom such RSUs have been transferred in violation of any of the provisions of this Agreement.
6.
Adjustments for Changes in Ordinary Shares and Certain Other Events
.
(a)
Changes in Capitalization
. In the event of any alteration or reorganization whatsoever taking place in the capital structure of the Company whether by way of share split, reverse share split, share dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other similar change in capitalization or event, or any dividend or distribution to holders of Ordinary Shares other than an ordinary cash dividend, the share and per-share-related provisions of the RSUs shall be equitably adjusted by the Company in the manner determined by the Board.
(b)
Reorganization Events
. A “Reorganization Event” shall mean: (a) any merger or consolidation of the Company with or into another entity as a result of which all of the Ordinary Shares of the Company are converted into or exchanged for the right to receive cash, securities or other property or is canceled, (b) any transfer or disposition of all of the Ordinary Shares of the Company for cash, securities or other property pursuant to a share exchange or other transaction or (c) any liquidation or dissolution of the Company. For the avoidance of doubt, any one or more of the above events may be effected pursuant to (A) a compromise or arrangement sanctioned by the court under Chapter 1 of Part 9 of the Companies Act 2014 of the Republic of Ireland or (B) otherwise under Part 9 of the Companies Act 2014 of the Republic of Ireland or (C) otherwise under the Companies Act 2014 of the Republic of Ireland.
In connection with a Reorganization Event, the Board may take any one or more of the following actions with respect to this award (or any portion thereof) on such terms as the Board determines: (i) provide that this award shall be assumed, or a substantially equivalent award shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), (ii) provide that this award shall become realizable or deliverable, or restrictions applicable to this award shall lapse, in whole or in part prior to or upon such Reorganization Event, (iii) in the event of a Reorganization Event under the terms of which holders of Ordinary Shares will receive upon consummation thereof a cash payment for each share surrendered in the Reorganization Event (the “
Acquisition Price
”), make or provide for a cash payment to the Participant with respect to this award equal to the number of Ordinary Shares subject to the portion of this award that vests upon or immediately prior to such Reorganization Event multiplied by the Acquisition Price, net of any applicable tax withholdings, in exchange for the termination of this award, (iv) provide that, in connection with a liquidation or dissolution of the Company, this award shall convert into the right to receive liquidation proceeds (if applicable, net of any applicable tax withholdings) and (v) any combination of the foregoing.
For purposes of clause (i) above, the RSUs shall be considered assumed if, following consummation of the Reorganization Event, the RSUs confer the right to receive, for each Ordinary Share subject to the RSUs immediately prior to the consummation of the Reorganization Event, the consideration (whether cash, securities or other property) received as a result of the Reorganization Event by holders of Ordinary Shares for each Ordinary Share held immediately prior to the consummation of the Reorganization Event (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Ordinary Shares); provided, however, that if the consideration received as a result of the Reorganization Event is not solely ordinary shares of the acquiring or succeeding corporation (or an affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation, provide for the consideration to be received upon the settlement of the RSUs to consist solely of such number of ordinary shares of the acquiring or succeeding corporation (or an affiliate thereof) that the Board determined to be equivalent in value (as of the date of such determination or another date specified
by the Board) to the per share consideration received by holders of outstanding Ordinary Shares as a result of the Reorganization Event.
7.
Miscellaneous
.
(a)
No Right to Continued Service/Compensation for Loss.
The Participant acknowledges and agrees that, notwithstanding the fact that the vesting of the RSUs is contingent upon his continued service to the Company, this Agreement does not constitute an express or implied promise of continued service relationship with the Participant or confer upon the Participant any rights with respect to a continued service relationship with the Company. Under no circumstances will the Participant ceasing to be an employee of the Company be entitled to compensation for any loss of any right or benefit or prospective right or benefit under this Agreement which the Participant might otherwise have enjoyed whether such compensation is claimed by way of damages for wrongful dismissal or other breach of contract or by way of compensation for loss of office or otherwise howsoever.
(b)
No Rights as a Shareholder; Clawback
. The Participant shall have no rights as a shareholder of the Company with respect to any Ordinary Shares that may be issuable with respect to the RSUs until the issuance of the Ordinary Shares to the Participant following the vesting of the RSUs. In accepting this award, the Participant agrees to be bound by any clawback policy that the Company may adopt in the future.
(c)
Voting Rights
. The Participant shall have no voting rights with respect to the RSUs.
(d)
Entire Agreement
. This Agreement, together with the Employment Agreement, constitute the entire agreement between the parties, and supersede all prior agreements and understandings, relating to the subject matter hereof.
(e)
Amendment
. Except with respect to any vesting terms set forth in the Employment Agreement, the Board may amend, modify or terminate this Agreement, including but not limited to, substituting award of the same or a different type and changing the date of exercise or realization. Notwithstanding the foregoing, the Participant’s consent to such action shall be required unless (i) the Board determines that the action, taking into account any related action, would not materially and adversely affect the Participant’s rights under this Agreement, or (ii) the change is permitted under Section 6 and the Employment Agreement.
(f)
Acceleration
. The Board may at any time provide that the RSUs shall become immediately vested in whole or in part, free from some or all forfeiture restrictions or conditions, or otherwise realizable in whole or in part, as the case may be.
(g)
Conditions on Delivery of Shares
. Notwithstanding any other provision of this Agreement, (a) the Company shall not be obliged to issue any Ordinary Shares pursuant to the RSUs unless at least the par value of such newly issued Ordinary Shares has been fully paid in advance in accordance with all applicable law (which requirement may mean the Participant is obliged to make such payment) and (b) the Company will not be obligated to deliver any Ordinary Shares pursuant to this Agreement until (i) all conditions of this Agreement have been met to the satisfaction of the Company, (ii) in the opinion of the Company’s counsel, all other legal matters in connection with the issuance and delivery of such shares have been satisfied, including any
applicable securities laws and regulations and any applicable stock exchange or stock market rules and regulations, and (iii) the Participant has executed and delivered to the Company such representations or agreements as the Company may consider appropriate to satisfy the requirements of any applicable laws, rules or regulations.
(h)
Administration by Board
. The Board will administer this Agreement and may construe and interpret the terms hereof. Subject to the terms and provisions of the Employment Agreement, the Board may correct any defect, supply any omission or reconcile any inconsistency in this Agreement. No director or person acting pursuant to the authority delegated by the Board shall be liable for any action or determination relating to or under this Agreement made in good faith.
(i)
Appointment of Committees
. To the extent permitted by applicable law, the Board may delegate any or all of its powers hereunder to one or more committees or subcommittees of the Board (a “
Committee
”). All references herein to the “Board” shall mean the Board or a Committee to the extent that the Board’s powers or authority hereunder have been delegated to such Committee.
(j)
Severability
. The invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision hereof, and each such other provision shall be severable and enforceable to the extent permitted by law.
(k)
Section 409A
. The RSUs awarded pursuant to this Agreement are intended to be exempt from or comply with the requirements of Section 409A of the Code or any successor provision thereto, and the regulations thereunder (“
Section 409A
”). The delivery of Ordinary Shares on the vesting of the RSUs may not be accelerated or deferred unless permitted or required by Section 409A.
(l)
Participant’s Acknowledgements
. The Participant acknowledges that he: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation and execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; and (iv) is fully aware of the legal and binding effect of this Agreement.
(m)
Governing Law
. This Agreement shall be governed by, except to the extent preempted by other applicable laws (1) with respect to the corporate law requirements applicable to the Company, the validity and authorization of the issuance of Ordinary Shares with respect to this award and similar matters, the laws of Ireland (without reference to conflict of law principles thereof) and (2) with respect to all other matters relating to this award, the laws of the State of Delaware, excluding choice-of-law principles of the law of that state.
(n)
Counterparts
. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one in the same instrument.
[Remainder of Page Intentionally Left Blank]
Appendix A
Automatic Sale Instructions
The undersigned hereby consents and agrees that any taxes due on a vesting date as a result of the vesting of RSUs on such date shall be paid through an automatic sale of shares as follows:
(a)
Upon any vesting of RSUs pursuant to Section 2 hereof, the Company shall arrange for the sale of such number of Ordinary Shares issuable with respect to the RSUs that vest pursuant to Section 2 as is sufficient to generate net proceeds sufficient to satisfy the Company’s minimum statutory withholding obligations with respect to the income recognized by the Participant upon the vesting of the RSUs (based on minimum statutory withholding rates for all tax purposes, including payroll and social security taxes, that are applicable to such income), and the Company shall retain such net proceeds in satisfaction of such tax withholding obligations.
(b)
The Participant hereby appoints the Chief Financial Officer and/or General Counsel and Secretary of the Company his or her attorney in fact to sell the Participant’s Ordinary Shares in accordance with this Appendix A. The Participant agrees to execute and deliver such documents, instruments and certificates as may reasonably be required in connection with the sale of Ordinary Shares pursuant to this Appendix A.
(c)
The Participant represents to the Company that, as of the date hereof, he or she is not aware of any material nonpublic information about the Company or the Ordinary Shares. The Participant and the Company have structured this Agreement, including this Appendix A, to constitute a “binding contract” relating to the sale of Ordinary Shares, consistent with the affirmative defense to liability under Section 10(b) of the Securities Exchange Act of 1934 under Rule 10b5-1(c) promulgated under such Act.
The Company shall not deliver any Ordinary Shares to the Participant until it is satisfied that all required withholdings have been made.
Schedule 1
Performance Condition
The Participant’s Restricted Share Units shall become vested in such amounts and at such times specified in the Notice of Grant subject to the achievement of the following Performance Condition:
Board certification of the receipt of U.S. Food and Drug Administration (“FDA”) approval of a new drug application for each of (x) the Company’s lefamulin product candidate and (y) the Company Milestone Product (as such term is defined in the Agreement and Plan of Merger dated as of July 23, 2018 by and among Nabriva Therapeutics plc, Zuperbug Merger Sub I, Inc., Zuperbug Merger Sub II, Inc., Zavante Therapeutics, Inc. and Cam Gallagher, solely in his capacity as initial Stockholder Representative), provided that both such FDA approvals are received by January 31, 2020 (the “Expiration Date”). If the Performance Condition has not been achieved on or before the Expiration Date, then the RSUs that would have vested as a result of the satisfaction of the Performance Condition shall terminate immediately and automatically on such date and the Participant shall have no further rights with respect thereto.