As filed with the U.S. Securities and Exchange Commission on December 17, 2021

 

Registration Statement No. ____

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

 

FREYR Battery
(Exact name of Registrant as specified in its charter)

 

 

 

Grand Duchy of Luxembourg   Not Applicable
(State of incorporation)   (I.R.S. Employer Identification No.)

 

 

 

412F, route d’Esch, L-2086 Luxembourg

Grand Duchy of Luxembourg

+352 46 61 11 3721

(Address of Principal Executive Offices)

 

2019 Incentive Stock Option Plan

2021 Equity Incentive Plan

Jensen Employment Agreement

(Full Title of Plan)

 

 

 

Tom Einar Jensen

FREYR Battery

412F, route d’Esch, L-2086 Luxembourg

Grand Duchy of Luxembourg

+352 46 61 11 3721

(Name, address and telephone number, including area code, of agent for service)

 

 

 

With copies to:

Denis Klimentchenko, Esq.

Skadden, Arps, Slate, Meagher & Flom (UK) LLP

40 Bank Street, Canary Wharf

London E14 5DS

United Kingdom

+44 (20) 7519 7000

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer Accelerated filer
Non-accelerated filer Smaller reporting company
    Emerging growth company

 

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.  ☐

 

 

 

 

 

 

CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered   Amount to
be
Registered(1)
  Proposed
Maximum
Offering
Price Per
Share
  Proposed
Maximum
Aggregate
Offering Price
  Amount of
Registration
Fee(2)
Ordinary Shares, no par value (the “Ordinary Shares”), which consist of Ordinary Shares outstanding and/or reserved for future issuance pursuant to the following plans:                                
                                 
2019 Incentive Stock Option Plan     850,368 (3)   $ 0.51 (2)(7)   $ 433,687.68     $ 40.20 (9)
Jensen Employment Agreement     850,000 (4)   $ 10.00 (2)(7)   $ 8,500,000.00     $ 787.95 (9)
2021 Equity Incentive Plan     1,921,950 (5)   $ 10.08 (2)(7)   $ 19,374,836.94     $ 1,796.05 (9)
2021 Equity Incentive Plan     9,678,050 (6)   $ 11.34 (2)(8)   $ 109,700,696.75     $ 10,169.25 (9)
                                 
Total:     13,300,368             $ 138,009,221.37     $ 12,793.45  

  

 

(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover an indeterminate number of additional shares of Ordinary Shares of FREYR Battery (the “Registrant”) that may, with respect to the Ordinary Shares registered hereunder, become issuable under the Registrant’s 2019 Plan, the 2021 Equity Incentive Plan and the Jensen Employment Agreement (all as defined below) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration, which results in an increase in the number of the Registrant’s outstanding shares of Ordinary Shares.

 

(2) Estimated to the nearest penny.

 

(3) Represents Ordinary Shares issuable upon the exercise of stock options issued pursuant to the 2019 Incentive Stock Plan.

 

(4) Represents Ordinary Shares issuable upon the exercise of stock options issued pursuant to the Jensen Employment Agreement.

 

(5) Represents Ordinary Shares issuable upon the exercise of stock options issued pursuant to the 2021 Equity Incentive Plan.

 

(6) Represents Ordinary Shares reserved for future issuance under the 2021 Equity Incentive Plan.

 

(7) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act on the basis of the weighted average exercise price of outstanding stock options.

 

(8) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) under the Securities Act, on the basis of the average of the high and low prices per share of the Ordinary Shares as reported on the New York Stock Exchange on December 10, 2021.

 

(9) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act. Calculated in accordance with Section 6 of the Securities Act and Rule 457 under the Securities Act by multiplying 0.0000927 and the proposed maximum aggregate offering price.

 

 

 

 

 

 

EXPLANATORY NOTE

 

FREYR Battery (the “Company” or “Registrant”) is filing this registration statement on Form S-8 (“Registration Statement”) to register 13,300,368 Ordinary Shares, without nominal value, issuable pursuant to (i) the 2019 Incentive Stock Option Plan of FREYR AS (the “2019 Plan”), (ii) the 2021 Equity Incentive Plan (the “Incentive Plan” or the “2021 Equity Incentive Plan”) and (iii) the employment agreement entered into on June 16, 2021 between FREYR AS and Tom Einar Jensen (the “Jensen Employment Agreement”).

 

i

 

 

PART I.

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents containing the information specified in Part I of the instructions to the Registration Statement will be sent or given to participants in the Incentive Plan as required by Rule 428(b)(1) of the rules promulgated under the Securities Act of 1933, as amended (the “Securities Act”). These documents are not being filed with the Securities and Exchange Commission (the “SEC”) as a part of this Registration Statement in accordance with Rule 428(b) and the Note to Part I of Form S-8.

 

1

 

 

PART II.

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference

 

We are incorporating by reference certain information that we, or our predecessor Alussa Energy Acquisition Corp. (“Alussa”), have filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The information contained in the documents that we are incorporating by reference is considered to be part of this Registration Statement, and the information that we later file with the SEC will automatically update and supersede the information contained or incorporated by reference into this Registration Statement. Except with respect to (i) the financial statements of Alussa as of December 31, 2020 and 2019, for the year ended December 31, 2020 and for the period from June 13, 2019 (inception) through December 31, 2019 and (ii) the report of Marcum LLP thereon dated March 1, 2021, except for effects of the restatement discussed in Note 1A, as to which the date is May 5, 2021, we are incorporating by reference:

 

a. Alussa’s Annual Report on Form 10-K for the year ended December 31, 2020 filed with the SEC on March 1, 2021, as amended by Amendment No. 1 on Form 10-K/A filed with the SEC on May 6, 2021.

 

b. Alussa’s Quarterly Reports on Form 10-Q for the quarter ended March 31, 2021, filed with the SEC on May 20, 2021. The Company’s Quarterly Reports on Form 10-Q for the quarters ended June 30, 2021, filed with the SEC on August 12, 2021 and September 30, 2021, filed with the SEC on November 15, 2021.

 

c. Alussa’s Current Reports on Form 8-K and Form 8-K/A, as applicable, filed with the SEC on January 29, 2021, January 29, 2021, February 1, 2021, February 9, 2021, February 12, 2021, February 17, 2021, March 3, 2021, March 9, 2021, March 18, 2021, March 26, 2021, April 8, 2021, April 21, 2021, May 6, 2021, May 27, 2021, June 9, 2021, June 9, 2021, June 11, 2021, June 14, 2021, June 17, 2021, June 21, 2021, June 22, 2021, June 23, 2021, June 25, 2021, June 29, 2021, June 30, 2021 and July 12, 2021 (excluding “furnished” and not “filed” information). The Company’s Current Reports on Form 8-K and Form 8-K/A, as applicable, filed with the SEC on July 9, 2021, July 12, 2021, July 13, 2021, July 19, 2021, July 19, 2021, July 21, 2021, July 26, 2021, August 12, 2021, August 12, 2021, August 13, 2021, October 12, 2021 and November 15, 2021 (excluding “furnished” and not “filed” information).

 

d. The description of the Company’s Ordinary Shares, without nominal value, contained in the registration statement on Form S-1 filed with the SEC on August 9, 2021 and the post-effective amendments thereof on August 9, 2021 and August 27, 2021, including any amendments or reports filed for the purpose of updating such description.

 

II-1

 

 

All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Unless expressly incorporated into this Registration Statement, a report furnished but not filed on Form 8-K under the Exchange Act shall not be incorporated by reference into this Registration Statement. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers

 

Pursuant to Luxembourg law on agency, agents are generally entitled to be reimbursed any advances or expenses made or incurred in the course of their duties, except in cases of fault or negligence on their part. Luxembourg law provisions on agency are generally applicable to the mandate of directors and officers of the Company.

 

The Company’s Consolidated Articles of Association provide that directors and officers, past and present, will be entitled to indemnification from the Company to the fullest extent permitted by Luxembourg law against liability and all expenses reasonably incurred or paid by him or her in connection with any claim, action, suit, or proceeding in which he or she would be involved by virtue of his or her being or having been a director or officer and against amounts paid or incurred by him or her in the settlement thereof. However, no indemnification will be provided against any liability to the Company’s directors or officers (i) by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties of a director or officer, (ii) with respect to any matter as to which any director or officer shall have been finally adjudicated to have acted in bad faith and not in the Company’s interest, or (iii) in the event of a settlement, unless approved by a court of competent jurisdiction or the board of directors.

 

Pursuant to Luxembourg law, a company is generally liable for any violations committed by its employees in the performance of their functions except where such violations are not in any way linked to the duties of the employee.

 

Item 7. Exemption from registration claimed

 

Not applicable.

 

Item 8. Exhibits

 

Exhibit Numbers

 

Description

4.1   Consolidated Articles of Association of FREYR Battery as of November 26, 2021 (filed as Exhibit 3.1 to our Current Report on Form 8-K filed with the SEC on December 16, 2021, and incorporated herein by reference)
5.1   Opinion of Arendt & Medernach SA, Luxembourg counsel of FREYR Battery*
23.1   Consent of PricewaterhouseCoopers AS, independent registered accounting firm for FREYR Battery (with respect to FREYR Battery)*
23.2   Consent of PricewaterhouseCoopers AS, independent registered accounting firm for FREYR Battery (with respect to FREYR AS)*
23.3   Consent of Arendt & Medernach SA, Luxembourg counsel of FREYR Battery (included in Exhibit 5.1)*
24.1   Powers of Attorney (included on the signature page hereto)*
99.1   2019 Incentive Stock Option Plan*
99.2   2021 Equity Incentive Plan*
99.3   Employment Agreement entered into on June 16, 2021 between FREYR AS and Tom Einar Jensen (filed as Exhibit 10.25 to our Current Report on Form 8-K filed with the SEC on July 13, 2021, and incorporated herein by reference)

 

 

* Filed herewith

 

II-2

 

 

Item 9. Undertakings.

 

(a) The Registrant hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement;

 

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

 

(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b) The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

II-3

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Oslo, Norway, on the 17th day of December, 2021.

 

  FREYR Battery
   
  By: /s/ Tom Einar Jensen
  Name: Tom Einar Jensen
  Title: Chief Executive Officer

 

KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Tom Einar Jensen and Steffen Føreid, and each of them his true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) and supplements to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, and hereby grants to such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

         
/s/ Tom Einar Jensen   Chief Executive Officer   December 17, 2021
Tom Einar Jensen   (Principal Executive Officer)    
         
/s/ Steffen Føreid   Chief Financial Officer   December 17, 2021
Steffen Føreid   (Principal Financial and Accounting Officer)    
         
/s/ Torstein Dale Sjøtveit   Executive Chairman   December 17, 2021
Torstein Dale Sjøtveit        
         
/s/ Peter Matrai   Director   December 17, 2021
Peter Matrai        
         
/s/ Olaug Svarva   Director   December 17, 2021
Olaug Svarva        
         
/s/ Daniel Barcelo   Director   December 17, 2021
Daniel Barcelo        
         
/s/ German Curá   Director   December 17, 2021
German Curá        
         
/s/ Monica Tiúba   Director   December 17, 2021
Monica Tiúba        
         
/s/ Jeremy Bezdek   Director   December 17, 2021
Jeremy Bezdek        
         
/s/ Mimi Berdal   Director   December 17, 2021
Mimi Berdal        

 

II-4

 

 

AUTHORIZED REPRESENTATIVE

 

Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, the undersigned has signed this registration statement, solely in its capacity as the duly authorized representative of FREYR Battery in the City of Newark, Delaware, on the 17th day of December, 2021.

 

  By: /s/ Donald J. Puglisi
  Name: Donald J. Puglisi
  Title: Authorized Representative

 

 

II-5

 

 

Exhibit 5.1

 

 

To the Board of Directors of

FREYR Battery

412F, route d’Esch

L-2086 Luxembourg

Grand Duchy of Luxembourg

   
   
  Luxembourg, 17 December 2021
   
  Our ref. : 032637-70000/ 35658192
  Bob.calmes@arendt.com
 

Tel. : (352) 40 78 78 234

 

FREYR Battery – S-8 Registration Statement

 

Ladies and Gentlemen,

 

We are acting as Luxembourg counsel for FREYR Battery, a Luxembourg société anonyme, having its registered office at 412F, route d’Esch, L-2086 Luxembourg, Grand Duchy of Luxembourg, registered with the Registre de Commerce et des Sociétés de Luxembourg under number B251199, (the “Company”) in connection with the Company’s filing of a registration statement on Form S-8 with the U.S. Securities and Exchange Commission on 17 December 2021 under the Securities Act of 1933 (the “Registration Statement”) relating to the registration of an aggregate amount of 13,300,368 ordinary shares, each without nominal value (the “Plan Shares”), of which (i) 11,600,000 ordinary shares may be issued or granted by the Company under the Long Term Incentive Plan (as this term is defined below), (ii) 850,368 ordinary shares may be issued or granted by the Company under the 2019 Plan (as this term is defined below) and (iii) 850,000 ordinary shares may be issued or granted by the Company under the Jensen Employment Agreement (as this term is defined below). The Plan Shares to be newly issued by the Company under the Long Term Incentive Plan, the 2019 Plan and the Jensen Employment Agreement are hereinafter referred to as the “New Plan Shares”.

 

1. Scope

 

In arriving to the opinions expressed below, we have examined and relied on the documents identified in Appendix A hereto as well as on such corporate records as have been disclosed to us and such certifications made to us, which we deemed necessary and appropriate as a basis for the opinions hereinafter expressed.

 

2. Assumptions

 

We have assumed for the purposes hereof that the Company will at all times continue to have a sufficient authorised unissued share capital and sufficient authorised unissued ordinary shares, to issue the New Plan Shares under the Long Term Incentive Plan, the 2019 Plan and the Jensen Employment Agreement.

 

For the purposes of the present opinion we have further assumed

 

(i) the genuineness of all signatures and seals and that all documents reviewed are duly signed by the persons purported to have signed them;

 

(ii) the completeness and conformity to originals of all documents supplied to us as certified, photostatic, scanned, electronically transmitted copies or other copies of the documents reviewed and the authenticity of the originals of such documents and the conformity to originals of the latest drafts reviewed by us;

 

(iii) that there have been no amendments to the documents in the form delivered to us for the purposes of this opinion;

 

1

 

 

(iv) that there are no other resolutions, decisions, agreements or undertakings and no other arrangements (whether legally binding or not) which render any of the documents or information reviewed or provided to us inaccurate, incomplete or misleading or which affect the conclusions stated in this opinion and that the documents reviewed accurately record the whole of the terms agreed between the parties thereto relevant to this opinion;

 

(v) that no proceedings have been instituted or injunction granted against the Company to restrain it from performing any of its obligations under the Long Term Incentive Plan, the 2019 Plan and the Jensen Employment Agreement and/or issue or grant the New Plan Shares;

 

(vi) that the terms used in the documents reviewed carry the meaning ascribed to them in vernacular English;

 

(vii) that the terms governing the Long Term Incentive Plan, the 2019 Plan and the Jensen Employment Agreement are legal, valid and binding under their respective applicable laws;

 

(viii) that the corporate bodies of the Company and Freyr AS, a private limited liability company which was established under the laws of Norway, having its registered office at Nytorget 1, 8622 Mo i Rana, and registered with the Norwegian Register of Business Enterprises (Foretaksregisteret) (“FREYR”) have respectively approved, as applicable, the terms of the Long Term Incentive Plan, the 2019 Plan and the Jensen Employment Agreement, pursuant to which the New Plan Shares will be issued and/or granted, in accordance with applicable laws;

 

(ix) that upon issue of any New Plan Shares the Company will receive payment:

 

a. regarding the Long Term Incentive Plan, in cash or in kind of an issue price as determined in accordance with the Long Term Incentive Plan or has sufficient available reserves to be used to be converted into share capital for an amount equal to the par value of the new shares;

 

b. regarding the 2019 Plan, in cash or in kind or has sufficient available reserves to be used to be converted into share capital for an amount equal to the par value of the new shares; and

 

c. regarding the Jensen Employment Agreement, in cash or kind or has sufficient available reserves to be used to be converted into share capital for an amount equal to the par value of the new shares.

 

(x) that in case of an issuance of New Plan Shares below their par value and/or in case of a payment of all or part of the subscription price of the New Plan Shares by a contribution in kind, relevant formalities under Luxembourg laws will be complied with;

 

(xi) that the New Plan Shares will be issued within the limits of the authorised share capital of the Company;

 

(xii) that there will be no amendments to the authorised share capital of the Company or expiration or insufficiency of the authorised share capital of the Company which would adversely affect the issue of the New Plan Shares and the conclusions stated in this opinion;

 

(xiii) that the head office (administration centrale), the place of effective management (siège de direction effective), and, for the purposes of the regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast), the center of main interests (centre des intérêts principaux) of the Company are located at the place of its registered office (siège statutaire) in Luxembourg;

 

(xiv) that the Resolutions (as defined below) will be validly taken by the board of directors of the Company prior to any issuance of New Plan Share;

 

2

 

 

(xv) that Notarial Deed(s) (as defined below) will be passed in front of a notary in Luxembourg in order to reflect the increase of the share capital of the Company by the issue of New Plan Shares (to the extent such issuance is required) within one month of the relevant Director Confirmation (as defined below);

 

(xvi) the Resolutions and the Director Confirmation(s) will be adopted in substantially the same form as the drafts reviewed by us and will be true records of the proceedings described therein, that the resolutions set out in the Resolutions will be validly passed prior to any issuance of New Plan Shares and remain in full force and effect without modification;

 

(xvii) that there are no provisions of the laws of any jurisdiction outside Luxembourg which would have a negative impact on the opinions we express in this legal opinion;

 

(xviii) that the Company is not a party to any agreement providing that the claims, debts, liabilities and obligations which may have existed prior to the cross-border merger between the Company as the absorbing company and surviving entity and Norway Sub 1 AS, a private limited liability company which was established under the laws of Norway, having its registered office at Nytorget 1, 8622 Mo i Rana, and registered with the Norwegian Register of Business Enterprises (Foretaksregisteret) (“Norway Merger Sub 1”) as the absorbed company, in consideration of which the Company issued shares to the shareholders of Norway Merger Sub 1 (except to the Company) (the “Cross-Border Merger”) will end prior to or upon the Cross-Border Merger becoming effective;

 

(xix) that the Long Term Incentive Plan, the 2019 Plan and the Jensen Employment Agreement have been validly approved;

 

(xx) that the options issued by FREYR under the 2019 Plan and the Jensen Employment Agreement have been validly issued by FREYR in accordance with their governing law and terms and conditions and have been validly exchanged for Norway Merger Sub 1 options in accordance with applicable laws to Norway Merger Sub 1;

 

(xxi) the options issued under the 2019 Plan and the Jensen Employment Agreement are governed by the laws of the Kingdom of Norway;

 

(xxii) that Norway Merger Sub 1 was, prior to the date of effectiveness of the Cross-Border Merger, a company validly existing under the laws of the Kingdom of Norway and was not subject to any insolvency proceedings or similar proceedings affecting creditors generally; and

 

(xxiii) that the Cross-Border Merger was in the corporate interest of each of the companies involved.

 

We express no opinion as to any laws other than the laws of the Grand Duchy of Luxembourg and this opinion is to be construed under Luxembourg law and is subject to the exclusive jurisdiction of the courts of Luxembourg.

 

The opinions expressed herein are subject to all limitations by reason of gestion contrôlée, concordat, faillite, bankruptcy, moratorium (sursis de paiement) and other, insolvency, moratorium, controlled management, general settlement with creditors, reorganisation or similar laws affecting creditors’ rights generally.

 

3

 

 

3. Opinion

 

Based on the foregoing, and having regard for such legal considerations as we have deemed relevant, we are of the opinion that the New Plan Shares, once subscribed, fully paid-up and issued under the authorised share capital of the Company, and in accordance with (i) the Restated Articles of Association (as defined below) (ii) the Registration Statement (iii) the Long Term Incentive Plan, (iv) the 2019 Plan and the (v) Jensen Employment Agreement, will be validly issued, fully paid and non-assessable (within the meaning that the holder of such shares shall not be liable, solely because of his or her or its shareholder status, for additional payments to the Company or the Company’s creditors).

 

4. Qualifications

 

This opinion speaks as of the date hereof and is subject to all limitations by reason of national or foreign bankruptcy, insolvency, winding-up, liquidation, moratorium, controlled management, suspension of payment, voluntary arrangement with creditors, fraudulent conveyance, general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally. No obligation is assumed to update this opinion or to inform any person of any changes of law or other matters coming to our knowledge and occurring after the date hereof which affect the opinion in any respect.

 

This opinion is issued solely for the purposes of the filing of the Registration Statement and the issuance and/or grant of the New Plan Shares by the Company. It may not be used, circulated, quoted, referred to or relied upon for any other purpose without our written consent in each instance. We hereby consent to filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended.

 

We express no opinion on the validity or enforceability against all relevant parties of the Long-Term Incentive Plan or the Registration Statement in accordance with their respective terms under all relevant laws, save and insofar as such validity or enforceability are subject matter of specific opinions in this letter.

This Opinion is issued by and signed on behalf of Arendt & Medernach SA, admitted to practice in the Grand Duchy of Luxembourg and registered on the list V of lawyers of the Luxembourg Bar.

 

  Yours faithfully,
   
  By and on behalf of Arendt & Medernach SA
   
/s/ Bob Calmes
  Bob Calmes
  Partner

 

4

 

 

APPENDIX A – DOCUMENTS

 

1. A copy of the consolidated articles of association of the Company as at 26 November 2021 (the “Restated Articles of Association”).

 

2. A scanned copy of the signed written resolutions of the board of directors of the Company dated 9 July 2011 and 12 November 2021 that, among others, approved the Long Term Incentive Plan.

 

3. A scanned copy of the signed minutes of the board of directors of FREYR dated 13 September 2019 and 1 December 2020 that, among others, approved the 2019 Plan.

 

4. A scanned copy of the signed authorization dated 21 May 2021 granted by Steffen Føreid as sole director at that time to Torstein Dale Sjøtveit to sign on behalf of Norway Sub 2 AS, a Norwegian limited liability company with organization number 926 089 862 (which has merged with FREYR (with Norway Sub 2 AS as the surviving company)), among other documents, the Jensen Employment Agreement.

 

5. A copy of the terms and conditions governing the Long Term Incentive Plan to be filed as exhibit 99.2 to the Registration Statement (the “Long Term Incentive Plan”).

 

6. A copy of the executed FREYR 2019 incentive stock option plan dated 11 September 2019 to be filed as exhibit 99.1 to the Registration Statement (the “2019 Plan”).

 

7. A copy of the executed employment agreement with Mr. Tom Einar Jensen dated 16 June 2021 to be filed as exhibit 99.3 to the Registration Statement (the “Jensen Employment Agreement”).

 

8. A copy of the final version of the Registration Statement dated 17 December 2021.

 

9. A draft of the resolutions of the directors of the Company approving, inter alia, the issuance of New Plan Shares under the Long Term Incentive Plan, the 2019 Plan and the Jensen Employment Agreement (the “Resolutions”).

 

10. A form of notarial acknowledgement deed recording the issuance, of any, of New Plan Shares under the Long Term Incentive Plan, the 2019 Plan and the Jensen Employment Agreement (the “Notarial Deed”).

 

11. A form of confirmation by the special attorney of the board of directors of the Company regarding the issuance, if any, of New Plan Shares under the Long Term Incentive Plan, the 2019 Plan and the Jensen Employment Agreement (the “Director Confirmation”).

 

12. A copy of the certificate of non-registration of a judicial decision (certificat de non-inscription d’une décision judiciaire) dated 17 December 2021 and issued by the Luxembourg Trade and Companies’ Register in relation to the Company.

 

13. An excerpt dated 17 December 2021 in respect of the Company issued by the Luxembourg Trade and Companies’ Register.

 

5

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of FREYR Battery of our report dated July 7, 2021 relating to the financial statement of FREYR Battery, which appears in FREYR Battery’s Registration Statement on Form 8-K (No. 001-40581).

 

/s/ PricewaterhouseCoopers AS
Oslo, Norway
December 17, 2021

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of FREYR Battery of our report dated March 26, 2021 relating to the financial statements of FREYR AS, which is incorporated by reference in FREYR Battery’s Registration Statement on Form 8-K (No. 001-40581).

 

/s/ PricewaterhouseCoopers AS
Oslo, Norway
December 17, 2021

Exhibit 99.1

 

 

 

Freyr AS

 

Incentive Stock Option Plan

 

Issued 11.09.2019

 

Pursuant to resolution in the ordinary Annual General Meeting of Freyr AS 11.09.2019.

 

1. Purpose of this Plan

 

The intention of this Plan is to (i) attract and retain employees whose service is especially important to the Company’s success, (ii) motivate such employees to achieve the long-term goals of the Company, (iii) provide competitive incentive compensation to such employees, and (iv) align the interests of such employees with the other shareholders of the Company.

 

2. Definitions

 

(a) “Board” means the Board of Directors of Freyr AS.

 

(b) “Company” means Freyr AS and its subsidiaries.

 

(c) “Date of Grant” has the meaning set forth in section 4(c).

 

(d) “Eligible Employee” has the meaning set forth in section 3(b).

 

(e) “Exercise Period” has the meaning set forth in section 5(d).

 

(f) “Exercise Price” has the meaning set forth in section 5(a).

 

(g) “Family Member” has the meaning set forth in section 5(n).

 

(h) “Grant & Holding Statement” has the meaning set forth in section 4(d).

 

(i) “Offer letter” has the meaning set forth in section 4(e).

 

(j) “Option” means a right granted under this Plan that gives the Optionee a right for a specified period of time to purchase one Share per Option at a specified price per Share (Exercise Price) on terms specified herein.

 

(k) “Optionee” means an employee to whom Options have been granted under this Plan, which Options have not been exercised in full and have not expired or been terminated.

 

(l) “Outstanding Options” means options granted under this Plan which have not been exercised and have not expired or been terminated.

 

(m) “Plan” means this Freyr AS 2019 Incentive Stock Option Plan.

 

(n) “Profit” means the difference between the Value of a Share on any date and the Exercise Price.

 

(o) “Share” means a share of common stock of Freyr AS.

 

  Page 1 of 6

 

 

 

 

(p) “Value” of a Share on any date means the last sales price per Share of actual sales of Shares on the NOTC, the Norwegian stock exchange, or as part of an investment transaction, which ever is the most recent.

 

3. Shares subject to this Plan; Limitations on individual grants

 

(a) Shares issuable pursuant to this Plan. Subject to section 9, a total of 5.000.000 Shares may be issued pursuant to exercise of Options granted under this Plan.

 

(b) Eligible Employee. An Eligible Employee is someone that has signed an employment contract with the Company, and who has been offered Options under this Plan. Employees who have been given notice and employees who have given notice of termination of employment at the Date of Grant are not eligible for being granted further Options.

 

4. Offer and granting procedure and schedule

 

(a) Management is authorised to make grants within the limits of this policy. There is no set time period within which grants must be made.

 

(b) Grant & Holding Statement: Options granted shall be confirmed by a Grant & Holding Statement issued by the Freyr AS, which shall disclose

 

(i) the number of Options granted under this Plan,

 

(ii) the terms of Options by way of reference to this Plan.

 

(c) Offer and granting procedure:

 

Each Eligible Employee will be offered to be part of this Plan when joining the company or when being promoted into a role qualifying for this Plan. The employee

 

(i) shall be offered a specified number of Options under this Plan by presentation of an Offer letter

 

(ii) shall be informed about the terms of the Options by way of presentation of this Plan.

 

If an Eligible Employee wants to be granted Options offered, such employee shall confirm so by presentation of the Offer letter duly filled in and signed. Thereafter, such employee shall receive from the Freyr AS a Grant & Holding Statement.

 

5. Terms of the Options

 

Each Option under this Plan shall be granted on the following terms and such additional terms, not inconsistent with the provisions of this Plan, as the Board or shall determine:

 

(a) Exercise Price; The Exercise Price per Option shall be determined by the Board. The Board will base the Exercise Price on the share price achieved in the most recent third party transaction, adjusted by their evaluation of the development in share value since that transaction.

 

(b) Options will be granted on a quarterly basis, on the first working day of each quarter, at the relevant Value, in equal portions over a period of 2 years. All Options are to be deemed vested after 3 years.

 

(c) Options due an Eligible Employee in the first year of tenure will be earmarked for the employee, at the relevant Exercise Price, but only granted on the first grant date after the first year of employment has been completed. Should the Eligible Employee’s employment contract be terminated, either by the Company or the employee, before the first granting date, the options will be forfeit.

 

  Page 2 of 6

 

 

 

 

(d) Limitations of exercise.

 

(i) Options under this Plan may be exercised at the earliest three years, and at the latest five years, after the date of first Grant.

 

(ii) Minimum profit per Option under this Plan to be eligible to exercise an Option is NOK 1.

 

(iii) The Optionee cannot sell more than 2/3 of their Options in the first year of exercising their options.

 

(iv) Ordinary expiry of Options under this Plan is five years after they are granted.

 

(e) Exercise Period(s). Options may be exercised during 3 periods a year each containing 5 working days starting 10th May, 10th September and 10th November. If, however, the 10th is a Saturday, Sunday, or a Norwegian statutory holiday, the Exercise Period shall start the first working day after such days.

 

(f) Exercise procedure and terms.

 

(i) The Company and/or it’s service provider will in due time before Exercise Periods invite Optionees to exercise exercisable Outstanding Options.

 

(ii) The exercise invitation will disclose the procedure and terms of exercise of Options.

 

(iii) The Company shall under no circumstances, except for gross negligence, be liable for delay of exercise of Options.

 

(g) Exercise alternatives. Optionees will basically have two alternatives when exercising Options:

 

Alt 1: Buy shares; which implies that the Optionee buys Shares at Exercise Price, by way of cash payment.
     
  Alt 2: Same-day-sales; which implies that the Optionee authorizes the service provider to sell Shares under exercised Options at best price in the market and pay to the Optionee the Profit less broker’s fee for sale of the Shares under exercised Options. This alternative implies that the Optionee will not buy Shares.
     
  Due to US regulations, US citizens are strongly encouraged to choose alternative 2 (same-day-sales) for exercise of Options.

 

(h) Fees.

 

(i) The Company shall carry the service provider and the broker’s fees in relation to exercise of Options and the Company’s transfer of Shares to an Optionee pursuant to such Optionee’s exercise of Options.

 

(ii) Optionees shall carry the broker’s fee when selling Shares, regardless whether the sale is a same-day-sales or not, and when purchasing Shares other than transfer of Shares to Optionees upon exercise of Options.

 

(i) Payment of taxes and reporting of taxable income.

 

(i) Any taxes related to an Optionee, and payment of such taxes, related to such Optionee’s Options and/or exercise of Options is the sole responsibility of the Optionee.

 

  Page 3 of 6

 

 

 

 

(ii) The Company will report information and taxable income in relation to Options and/or exercise of Options to appropriate authorities in accordance with statutory provisions.

 

(iii) In case of statutory provisions for the Company to withhold and pay such taxes, the Company may upon receipt of confirmation of the number of Options an Eligible Employee wants to be granted, or an Optionee’s request of exercise of Options, as the case may be, require that the Optionee shall pay such taxes to the Company.

 

(j) Fractional Options. Only whole Options are exercisable. Any right to a fractional Option shall be forfeit.

 

(k) Minimum 10.000 Shares. The number of Options granted an Optionee and the number of Options exercised for transfer of Shares to an Optionee shall, to the extent reasonable, be a multiple of 10.000 Shares.

 

(l) Restrictions on transfer. In case of death of the Optionee, Options may be transferred by will or the laws of descent and distribution to Family Members. An Option may not be otherwise transferred and, during the lifetime of the Optionee thereof, shall be exercisable only by such Optionee.

 

(m) Expiration of the time for exercise of Options. Options under this Plan shall be exercisable subject to the following limitations:

 

(i) If an Optionee ceases to be an active employee of the Company, Options may not be exercised later than the first Exercise Period thereafter, except that

 

1) if such employment has ceased by reason of such Optionee’s death, Options may not be exercised later than six months after such termination of employment or,

 

2) if such employment has ceased by reason of such Optionee’s disability, Options may not be exercised later than six months after such termination of employment.

 

(ii) An Option exercisable after termination of employment shall be exercisable after such termination only to the extent that it was exercisable at the date of such termination.

 

(iii) No provision of this section 5(l) shall be deemed to extend the date when an Option would have become unexercisable if such employment had not ceased.

 

(n) Family Members. Family Member of an Optionee means any child, stepchild, grandchild, parent, step-parent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law of the Optionee, including adoptive relationships, any individual sharing the Optionee’s household (other than a tenant or employee), any trust in which any one or more of the Optionee and the foregoing individuals together hold more than fifty percent of the beneficial interests, any foundation in which any one or more of the Optionee and the foregoing individuals together control the management of assets of the foundation, and any other entity in which any one or more of the Optionee and the foregoing individuals together own more than fifty percent.

 

6. Termination of employment

 

For the purposes of this Plan, a transfer of an employee between two employers within the Company, shall not be deemed a termination of employment with the Company.

 

  Page 4 of 6

 

 

 

 

7. Rights as shareholders

 

An Optionee shall have no right as a shareholder with respect to any Share subject to an Option until the date of transfer of such Share to the Optionee.

 

8. Administration of this Plan; Costs; Data protection

 

(a) Administration. This Plan shall be administered by Management.

 

(b) Costs. The Company will pay the costs of introducing and administering this Plan. The Company may carry external costs (e.g. broker’s and banker’s fee etc) in relation to

 

Options granted to such Optionees.

 

(c) Data protection. By participating in this Plan, the Optionee consents to the Company’s holding and processing of personal data provided by the Optionee to the Company for all purposes relating to the administration of this Plan.

 

9. Capital changes affecting Shares

 

In the event of a share split, recapitalization, combination, subdivision, issuance of rights or other similar event affecting Shares, the Board shall appropriately adjust to reflect such change (i) the number of Shares specified in section 3 that may be issued pursuant to Options which may be granted pursuant to this Plan and (ii) the number and Exercise Price of Shares subject to each then outstanding Option.

 

10. Mergers and certain other corporate transactions

 

In the event of a change of control, i.e. a corporate transaction involving 50% or more of the combined voting power of the equity interests in Freyr AS (including without limitation a share split, issuance of rights, extraordinary dividend, recapitalization, reorganization, consolidation, merger, split-up, spin-off, combination or exchange of shares), the Options already granted to an Eligible Employee will be vested and the Optionee given the right to exercise options in accordance with the terms in section 5. Options earmarked for Eligible Employees in their first year of tenure, but not granted, will also be vested, given that the employee’s employment contract has not been terminated.

 

11. Plan not to influence terms of employment

 

Participation in this Plan, or invitation to such participation, shall not be construed by the Eligible Employee as indicating (i) any right to continue the employment in the Company, (ii) that the Company’s as well as the Eligible Employee’s right to terminate the employment is in any way restricted, (iii) that the Eligible Employee may in the future become entitled to granting of Options or other benefits pursuant to other incentive programs or employee benefit schemes, (iv) that any benefits enjoyed or allegedly enjoyed by the Eligible Employee by virtue of the Options offered under this Plan should be included or taken into account when determining remuneration levels for whatever purpose (such as bonus/variable compensation, severance pay, pension cost allocations, etc.).

 

12. Interpretation

 

The Board shall each have the power to interpret this Plan and to make and amend rules for putting it into effect and administering it.

 

13. Amendments

 

This Plan, any Option and the related Offer & Confirmation letter and Grant & Holding Statement may be amended by the Board; provided that, except for adjustments and modifications made pursuant to section 9 or 10, no Outstanding Option may be amended to reduce the Exercise Price thereof without the approval of the shareholders. No Outstanding Option may be amended adversely to the interest of the holder thereof without the written consent of the Optionee or other person then entitled to exercise such Option, except that the Board may determine to change the number of Exercise Periods.

 

  Page 5 of 6

 

 

 

 

The rights provided for by this Plan, the grant of Options and the Outstanding Options themselves are at all times conditional on the Board having the necessary authorization to fulfil the delivery of the Shares under Outstanding Options. In the event the Board does not have the necessary authorization to fulfil delivery of Shares under Outstanding Options, any exercisable Outstanding Option shall be settled by a cash payment equal to the Profit on the date of settlement.

 

14. Governing law

 

This Plan shall be governed by and construed in accordance with Norwegian law and statutory provisions.

 

15. Effective date

 

This Plan shall become effective on the date Eligible Employees are offered Options under this Plan.

 

11.09.2019

 

Torstein Dale Sjøtveit

Chairman of the Board

Freyr AS

 

 

Page 6 of 6

 

 

exhibit 99.2

 

FINAL VERSION

 

FREYR Battery

 

2021 EQUITY INCENTIVE PLAN

 

1. Purposes of the Plan. The purposes of this Plan are (a) to attract and retain the best available personnel to ensure the Company’s success and accomplish the Company’s goals; (b) to incentivize Employees, Directors and Independent Contractors with long-term equity-based compensation to align their interests with the Company’s shareholders; and (c) to promote the success of the Company’s business.

 

The Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, Restricted Stock, Restricted Stock Units, Stock Appreciation Rights and Stock Bonuses.

 

2. Definitions. As used herein, the following definitions will apply:

 

(a) “Administrator” means the Board or any of its Committees as will be administering the Plan, in accordance with Section 4 of the Plan.

 

(b) “Affiliate” means a Parent, a Subsidiary or any corporation or other entity that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company.

 

(c) “Applicable Laws” means all applicable laws, rules, regulations and requirements, including, but not limited to, all applicable U.S. federal or state laws, rules and regulations, the rules and regulations of any stock exchange or quotation system on which the Shares is listed or quoted, and the applicable laws, rules and regulations of any other country or jurisdiction where Awards are, or will be, granted under the Plan or Participants reside or provide services to the Company or any Affiliate, as such laws, rules, and regulations shall be in effect from time to time.

 

(d) “Award” means, individually or collectively, a grant under the Plan of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units or Stock Bonuses.

 

(e) “Award Agreement” means the written or electronic agreement setting forth the terms and provisions applicable to each Award granted under the Plan. The Award Agreement is subject to the terms and conditions of the Plan.

 

(f) “Board” means the Board of Directors of the Company.

 

 

 

 

(g) “Cause” means, with respect to the termination of a Participant’s status as a Service Provider, except as otherwise defined in an Award Agreement, (i) in the case where there is no employment agreement, consulting agreement, change in control agreement or similar agreement in effect between the Company or an Affiliate of the Company and the Participant at the time of the grant of the Award (or where there is such an agreement but it does not define “cause” (or words of like import) or where it only applies upon the occurrence of a change in control and one has not yet taken place): (A) any material breach by Participant of any material written agreement between Participant and the Company; (B) any failure by Participant to comply with the Company’s material written policies or rules as they may be in effect from time to time; (C) neglect or persistent unsatisfactory performance of Participant’s duties; (D) Participant’s repeated failure to follow reasonable and lawful instructions from the Board or Chief Executive Officer; (E) Participant’s indictment for, conviction of, or plea of guilty or nolo contendre to, any felony or a crime involving moral turpitude; (F) Participant’s commission of or participation in an act of fraud, embezzlement, misappropriation, misconduct or breach of fiduciary duty against the Company or any of its Subsidiaries; (G) Participant’s commission of or participation in an act that results in material damage to the Company’s business, property or reputation; or (H) Participant’s unauthorized use or disclosure of any proprietary information or trade secrets of the Company or any other party to whom the Participant owes an obligation of nondisclosure as a result of his or her relationship with the Company; or (ii) in the case where there is an employment agreement, consulting agreement, change in control agreement or similar agreement in effect between the Company or an Affiliate and the Participant at the time of the grant of the Award that defines “cause” (or words of like import), “cause” as defined under such agreement; provided, however, that with regard to any agreement under which the definition of “cause” only applies on occurrence of a change in control, such definition of “cause” shall not apply until a change in control actually takes place and then apply only with regard to a termination thereafter. For purposes of clarity, a termination without “Cause” does not include any termination that occurs solely as a result of Participant’s death or Disability. The determination as to whether a Participant’s status as a Service Provider for purposes of the Plan has been terminated for Cause shall be made in good faith by the Company and shall be final and binding on the Participant. The foregoing definition does not in any way limit the Company’s ability (or that of any Affiliate or any successor thereto, as appropriate) to terminate a Participant’s employment or consulting relationship at any time, subject to Applicable Laws.

 

(h) “Change in Control” except as may otherwise be provided in an Award Agreement or other applicable agreement, means the occurrence of any of the following:

 

(i) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if the Company’s shareholders immediately prior to such merger, consolidation or reorganization cease to directly or indirectly own immediately after such merger, consolidation or reorganization at least a majority of the combined voting power of the continuing or surviving entity’s securities outstanding immediately after such merger, consolidation or reorganization;

 

(ii) The consummation of the sale, transfer or other disposition of all or substantially all of the Company’s assets (other than (x) to a corporation or other entity of which at least a majority of its combined voting power is owned directly or indirectly by the Company, (y) to a corporation or other entity owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of the Shares of the Company or (z) to a continuing or surviving entity described in Section 2(h)(i) in connection with a merger, consolidation or reorganization which does not result in a Change in Control under Section 2(h)(i));

 

(iii) A change in the effective control of the Company which occurs on the date that a majority of members of the Board is replaced during any twelve (12) month period by Directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; or

 

- 2 -

 

 

(iv) The consummation of any transaction as a result of which any Person becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing at least fifty percent (50%) of the total voting power represented by the Company’s then outstanding voting securities. For purposes of this Section 2(h), the term “Person” shall have the same meaning as when used in Sections 13(d) and 14(d) of the Exchange Act but shall exclude:

 

(1) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or an Affiliate;

 

(2) a corporation or other entity owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of the Shares of the Company;

 

(3) the Company; and

 

(4) a corporation or other entity of which at least a majority of its combined voting power is owned directly or indirectly by the Company.

 

A transaction shall not constitute a Change in Control if its sole purpose is to change the jurisdiction of the Company’s registered office or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s voting securities immediately before such transactions. In addition, if any Person (as defined above) is considered to be in effective control of the Company, the acquisition of additional control of the Company by the same Person will not be considered to cause a Change in Control. If required for compliance with Section 409A of the Code, in no event will a Change in Control be deemed to have occurred if such transaction is not also a “change in the ownership or effective control of” the Company or “a change in the ownership of a substantial portion of the assets of” the Company as determined under Treasury Regulation Section 1.409A-3(i)(5) (without regard to any alternative definition thereunder).

 

(i) “Code” means the Internal Revenue Code of 1986, as amended. Reference to a specific section of the Code or regulation thereunder shall include such section or regulation, any valid regulation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or regulation.

 

(j) “Committee” means a committee of Directors or of other individuals satisfying Applicable Laws appointed by the Board in accordance with Section 4 hereof.

 

(k) “Company” means FREYR Battery, a corporation in the form of a public limited liability company (société anonyme) incorporated under the laws of the Grand Duchy of Luxembourg, with registered office at 412F, route d’Esch, L-2086 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register (Registre de Commerce et des Sociétés) under number B251199, or any successor thereto.

 

(l) “Determination Date” means any time when the achievement of the Performance Goals associated with the applicable Performance Period remains substantially uncertain; provided, however, that without limiting the foregoing, that if the Determination Date occurs on or before the date on which 25% of the Performance Period has elapsed, the achievement of such Performance Goals shall be deemed to be substantially uncertain.

 

- 3 -

 

 

(m) “Director” means a member of the Board.

 

(n) “Disability” means total and permanent disability as defined in Section 22(e)(3) of the Code in the case of Incentive Stock Options, and for all other Awards, means as determined pursuant to the terms of the long-term disability plan maintained by the Company; provided however, that if the Participant resides outside of the United States, “Disability” shall have such meaning as is required by Applicable Laws.

 

(o) “Effective Date” means July 9, 2021.

 

(p) “Employee” means any person, including Officers and Directors, employed by the Company or any Affiliate of the Company. Neither service as a Director nor payment of a director’s fee by the Company will be sufficient to constitute “employment” by the Company.

 

(q) “Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

(r) “Exchange Program” means a program under which outstanding Awards are amended to provide for a lower exercise price or surrendered or cancelled in exchange for (i) Awards with a lower exercise price, (ii) a different type of Award or awards under a different equity incentive plan, (iii) cash, or (iv) a combination of (i), (ii) and/or (iii). Notwithstanding the preceding, the term Exchange Program does not include (i) any action described in Section 14 or any action taken in connection with a Change in Control transaction nor (ii) any transfer or other disposition permitted under Section 13. For the purpose of clarity, each of the actions described in the prior sentence, none of which constitute an Exchange Program, may be undertaken (or authorized) by the Administrator in its sole discretion without approval by the Company’s shareholders, subject only to there being sufficient authorised and unissued and not otherwise committed share capital that has not expired.

 

(s) “Fair Market Value” means, as of any date, the value of Shares determined as follows:

 

(i) If the Shares are listed on any established stock exchange or a national market system, its Fair Market Value will be the closing sales price for such shares (or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of determination, as reported in such source as the Administrator deems reliable;

 

(ii) If the Shares are regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a Share will be the mean between the high bid and low asked prices for the Shares on the day of determination, as reported in such source as the Administrator deems reliable; or

 

(iii) In the absence of an established market for the Shares, the Fair Market Value will be determined in good faith by the Administrator in compliance with Applicable Laws and regulations and in a manner that complies with Section 409A of the Code.

 

- 4 -

 

 

(t) “Fiscal Year” means the fiscal year of the Company.

 

(u) “Incentive Stock Option” means an Option that by its terms qualifies and is intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.

 

(v) “Independent Contractor” means any person, including an advisor, consultant or agent, engaged by the Company or an Affiliate to render services to such entity or who renders, or has rendered, services to the Company, or any Affiliate and is compensated for such services.

 

(w) “Inside Director” means a Director who is an Employee.

 

(x) “Insider” means an officer or director of the Company or any other person whose transactions in Shares are subject to Section 16 of the Exchange Act.

 

(y) “Luxembourg Company Law” means the law of 10 August 1915 on commercial companies, as amended.

 

(z) “Nonstatutory Stock Option” means an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock Option.

 

(aa) “Officer” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.

 

(bb) “Option” means a stock option granted pursuant to the Plan.

 

(cc) “Outside Director” means a Director who is not an Employee.

 

(dd) “Parent” means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if each of the corporations other than the Company owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Parent on a date after the adoption of the Plan shall be considered a Parent commencing as of such date.

 

(ee) “Participant” means the holder of an outstanding Award.

 

- 5 -

 

 

(ff) “Performance Goal” means a formula or standard determined by the Administrator with respect to each Performance Period, which may include any of the following criteria (or any other criteria determined by the Administrator in its sole discretion), with any adjustment(s) to such criteria established by the Administrator: (1) sales or non-sales revenue; (2) return on revenues; (3) operating income; (4) income or earnings including operating income; (5) income or earnings before or after taxes, interest, depreciation and/or amortization; (6) income or earnings from continuing operations; (7) net income; (8) pre-tax income or after-tax income; (9) net income excluding amortization of intangible assets, depreciation and impairment of goodwill and intangible assets and/or excluding charges attributable to the adoption of new accounting pronouncements; (10) raising of financing or fundraising; (11) project financing; (12) revenue backlog; (13) gross margin; (14) operating margin or profit margin; (15) capital expenditures, cost targets, reductions and savings and expense management; (16) return on assets (gross or net), return on investment, return on capital, or return on shareholder equity; (17) cash flow, free cash flow, cash flow return on investment (discounted or otherwise), net cash provided by operations, or cash flow in excess of cost of capital; (18) performance warranty and/or guarantee claims; (19) stock price or total shareholder return; (20) earnings or book value per share (basic or diluted); (21) economic value created; (22) pre-tax profit or after-tax profit; (23) strategic business criteria, consisting of one or more objectives based on meeting specified market penetration or market share, completion of strategic agreements such as licenses, joint ventures, acquisitions, and the like, geographic business expansion, objective customer satisfaction or information technology goals, intellectual property asset metrics; (24) objective goals relating to divestitures, joint ventures, mergers, acquisitions and similar transactions; (25) objective goals relating to staff management, results from staff attitude and/or opinion surveys, staff satisfaction scores, staff safety, staff accident and/or injury rates, compliance, headcount, performance management, completion of critical staff training initiatives; (26) objective goals relating to projects, including project completion, timing and/or achievement of milestones, project budget, technical progress against work plans; and (27) enterprise resource planning. Awards issued to Participants may take into account other criteria (including subjective criteria). Performance Goals may differ from Participant to Participant, Performance Period to Performance Period and from Award to Award. Any criteria used may be measured, as applicable, (i) in absolute terms, (ii) in relative terms (including, but not limited to, any increase (or decrease) over the passage of time and/or any measurement against other companies or financial or business or stock index metrics particular to the Company), (iii) on a per share and/or share per capita basis, (iv) against the performance of the Company as a whole or against any Affiliate(s), or a particular segment(s), a business unit(s) or a product(s) of the Company or individual project company, (v) on a pre-tax or after-tax basis, (vi) on a GAAP or non-GAAP basis, and/or (vii) using an actual foreign exchange rate or on a foreign exchange neutral basis.

 

(gg) “Performance Period” means the time period during which the Performance Goals or other vesting provisions must be satisfied for Awards. Performance Periods may be of varying and overlapping duration, at the sole discretion of the Administrator.

 

(hh) “Period of Restriction” means the period during which the transfer of Shares of Restricted Stock is subject to restrictions and therefore, the Shares are subject to a substantial risk of forfeiture. Such restrictions may be based on the passage of time, the achievement of target levels of performance, or the occurrence of other events as determined by the Administrator.

 

(ii) “Plan” means this 2021 Equity Incentive Plan.

 

(jj) “Restricted Stock” means Shares issued pursuant to a Restricted Stock award under Section 7 of the Plan.

 

(kk) “Restricted Stock Unit” means a bookkeeping entry representing an amount equal to the Fair Market Value of one Share, granted pursuant to Section 8. Each Restricted Stock Unit represents an unfunded and unsecured obligation of the Company.

 

- 6 -

 

 

(ll) “Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan.

 

(mm) “Section 16(b)” means Section 16(b) of the Exchange Act.

 

(nn) “Service Provider” means an Employee, Director or Independent Contractor.

 

(oo) “Share” means a share of the Company, as adjusted in accordance with Section 15 of the Plan.

 

(pp) “Stock Appreciation Right” means an Award, granted alone or in connection with an Option, that pursuant to Section 9 is designated as a Stock Appreciation Right.

 

(qq) “Stock Bonus Award” means an Award granted pursuant to Section 10 of the Plan.

 

(rr) “Subsidiary” means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date.

 

(ss) “Tax-Related Items” means income tax, social insurance or other social contributions, national insurance, social security, payroll tax, fringe benefits tax, payment on account or other tax-related items.

 

3. Share Subject to the Plan.

 

(a) Share Subject to the Plan. Subject to the provisions of Section 14 of the Plan, the maximum aggregate number of Shares that may be issued under the Plan is 11,600,000 Shares. The Shares may be authorized, but unissued, or reacquired. Notwithstanding the foregoing, subject to the provisions of Section 14 below, in no event shall the maximum aggregate number of Shares that may be issued under the Plan pursuant to Incentive Stock Options exceed the number set forth in this Section 3(a) plus, to the extent allowable under Section 422 of the Code and the regulations promulgated thereunder, any Shares that become available again for issuance pursuant to Sections 3(b).

 

(b) Lapsed Awards. Subject to Applicable Laws, if all or any part of an Award expires, lapses or is terminated, exchanged for or settled in cash, surrendered, repurchased, canceled without having been fully exercised or forfeited, in any case, in a manner that results in the Company acquiring Shares covered by the Award at a price not greater than the price (as adjusted pursuant to Section 14(a)) paid by the Participant for such Shares or not issuing any Shares covered by the Award, the unissued Shares covered by the Award will, as applicable, become or again be available for Award grants under the Plan.  The payment of dividend equivalents in cash in conjunction with any outstanding Awards shall not count against the share limit set forth in Section 3(a).   Notwithstanding anything to the contrary contained herein, the following Shares shall not be added to the Shares authorized for grant under Section 3(a) and shall not be available for future grants of Awards: (i) Shares subject to a Stock Appreciation Right that are not issued in connection with the stock settlement of the Stock Appreciation Right on exercise thereof; and (ii) Shares purchased on the open market with the cash proceeds from the exercise of Options; and (iii) Shares delivered (either by actual delivery or attestation) to the Company by a Participant to satisfy the applicable exercise or purchase price of an Award and/or to satisfy any applicable tax withholding obligation with respect to an Award (including Shares retained by the Company from the Award being exercised or purchased and/or creating the tax obligation); provided, that, each of the foregoing actions in subclauses (i) through (iii) is permitted under Applicable Law.

 

- 7 -

 

 

(c) Assumption or Substitution of Awards by the Company. The Administrator, from time to time, may determine to substitute or assume outstanding awards granted by another company, whether in connection with an acquisition of such other company or otherwise, by either: (a) assuming such award under this Plan or (b) granting an Award under this Plan in substitution of such other company’s award. Such assumption or substitution will be permissible if the holder of the substituted or assumed award would have been eligible to be granted an Award under this Plan if the other company had applied the rules of this Plan to such grant. In the event the Administrator elects to assume an award granted by another company, subject to the requirements of Section 409A of the Code, the purchase price or the exercise price, as the case may be, and the number and nature of Shares issuable upon exercise or settlement of any such Award will be adjusted appropriately. In the event the Administrator elects to grant a new Option in substitution rather than assuming an existing option, such new Option may be granted with a similarly adjusted exercise price. Any awards that are assumed or substituted under this Plan shall not reduce the number of Shares authorized for grant under the Plan or authorized for grant to a Participant in any fiscal year.

 

4. Administration of the Plan.

 

(a) Procedure.

 

(i) Multiple Administrative Bodies. Subject to compliance with Applicable Law, different Committees with respect to different groups of Service Providers may administer the Plan.

 

(ii) Rule 16b-3. To the extent desirable to qualify transactions hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder will be structured to satisfy the requirements for exemption under Rule 16b-3.

 

(iii) Other Administration. Other than as provided above, the Plan will be administered by (A) the Board or (B) a Committee, which committee will be constituted to satisfy Applicable Laws and will have the powers specifically delegated to it by the Board.

 

(b) Powers of the Administrator. Subject to the provisions of the Plan and the maximum number of Shares for which issuance authority is delegated to the Administrator by the general shareholders meeting, the Administrator will have the authority, in its discretion:

 

(i) to determine the Fair Market Value in accordance with Section 2(t)(iii);

 

- 8 -

 

 

(ii) to select the Service Providers to whom Awards may be granted hereunder;

 

(iii) to determine the number of Shares to be covered by each Award granted hereunder;

 

(iv) to approve forms of Award Agreements for use under the Plan;

 

(v) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder; such terms and conditions include, but are not limited to, the exercise price, the time or times when Awards may be exercised (which may be based on Performance Goals), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Award or the Shares relating thereto, based in each case on such factors as the Administrator will determine;

 

(vi) to institute and determine the terms and conditions of an Exchange Program; provided however, that the Administrator shall not implement an Exchange Program without the approval of the holders of a majority of the Shares that are present in person or by proxy and entitled to vote at any annual or special meeting of the Company’s shareholders subject to any higher requirements as to quorum or majority provided by Luxembourg Company Law.;

 

(vii) to construe and interpret the terms of the Plan and Awards granted pursuant to the Plan;

 

(viii) correct any defect, supply any omission or reconcile any inconsistency in this Plan, any Award or any Award Agreement;

 

(ix) to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations established for the purpose of satisfying non-U.S. Applicable Laws, for qualifying for favorable tax treatment under applicable non-U.S. Applicable Laws or facilitating compliance with non-U.S. Applicable Laws (sub-plans may be created for any of these purposes);

 

(x) to modify or amend each Award (subject to Section 21 of the Plan), including but not limited to the discretionary authority to extend the post-termination exercisability period of Awards, to accelerate vesting and to extend the maximum term of an Option (subject to Section 6(b) of the Plan regarding Incentive Stock Options);

 

(xi) adjust Performance Goals to take into account changes in Applicable Laws or in accounting or tax rules, or such other extraordinary, unforeseeable, nonrecurring or infrequently occurring events or circumstances as the Administrator deems necessary or appropriate to avoid windfalls or hardships;

 

(xii) to allow Participants to satisfy tax withholding obligations in such manner as prescribed in Section 15 of the Plan;

 

(xiii) to authorize any person to execute on behalf of the Company any instrument required to effect the grant of an Award previously granted by the Administrator;

 

- 9 -

 

 

(xiv) to allow a Participant to defer the receipt of the payment of cash or the delivery of Shares that would otherwise be due to such Participant under an Award; and

 

(xv) to make all other determinations deemed necessary or advisable for administering the Plan.

 

(c) Effect of Administrator’s Decision. The Administrator’s decisions, determinations and interpretations will be final and binding on all Participants and any other holders of Awards. Any dispute regarding the interpretation of the Plan or any Award Agreement shall be submitted by the Participant to the Company for review. Subject to compliance with Applicable Law, any officer of the Company designated by the Board, including but not limited to Insiders, shall have the authority to review and resolve disputes with respect to Awards held by Participants who are not Insiders, and such resolution shall be final and binding on the Company and the Participant. Only the Committee shall have the authority to review and resolve disputes with respect to Awards held by Participants who are Insiders, and such resolution subject to complying with the authority given to the Board to issue Shares by the general meeting of shareholders and the delegation given by the Board to the Administrator shall be final and binding on the Company and the Participant.

 

(d) Delegation. To the extent permitted by Applicable Laws, the Board or Committee, in its sole discretion and on such terms and conditions as it may provide, may delegate all or any part of its authority and powers under the Plan to one or more Directors or officers of the Company. To the extent permitted by Applicable Laws, the Board or Committee may delegate to one or more officers of the Company who may be (but are not required to be) Insiders (“Delegation Officers”), the authority to do any of the following (i) designate Employees who are not Insiders to be recipients of Awards, (ii) determine the number of Shares to be subject to such Awards granted to such designated Employees, and (iii) take any and all actions on behalf of the Board or Committee other than any actions that affect the amount or form of compensation of Insiders or have material tax, accounting, financial, human resource or legal consequences to the Company or its Affiliates; provided, however, that the Board or Committee resolutions regarding any delegation with respect to (i) and (ii) will specify the total number of Shares that may be subject to the Awards granted by such Delegation Officer and that such Delegation Officer may not grant an Award to himself or herself. Any Awards will be granted on the form of Award Agreement most recently approved for use by the Board or Committee, unless otherwise provided in the resolutions approving the delegation authority.

 

(e) Administration of Awards Subject to Performance Goals. The Administrator will, in its sole discretion, determine the Performance Goals, if any, applicable to any Award (including any adjustment(s) thereto that will be applied in determining the achievement of such Performance Goals) on or prior to the Determination Date. The Performance Goals may differ from Participant to Participant and from Award to Award. The Administrator shall determine and approve the extent to which such Performance Goals have been timely achieved and the extent to which the Shares subject to such Award have thereby been earned.

 

(f) Section 16 of the Exchange Act. Awards granted to Participants who are Insiders must be approved by two or more “non-employee directors” of the Board (as defined in the regulations promulgated under Section 16 of the Exchange Act).

 

- 10 -

 

 

5. Award Eligibility. Nonstatutory Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units and Stock Bonuses may be granted to Service Providers. Incentive Stock Options may be granted only to Employees.

 

6. Stock Options.

 

(a) Limitations. Each Option will be designated in the Award Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options are exercisable for the first time by the Participant during any calendar year (under all plans of the Company and any Affiliate) exceeds one hundred thousand dollars ($100,000), such Options will be treated as Nonstatutory Stock Options. For purposes of this Section 6(a), Incentive Stock Options will be taken into account in the order in which they were granted. The Fair Market Value of the Shares will be determined as of the date the Option with respect to such Shares is granted. With respect to the Administrator’s authority in Section 4(b)(x), if, at the time of any such extension, the exercise price per Share of the Option is less than the Fair Market Value of a Share, the extension shall, unless otherwise determined by the Administrator, be limited to the earlier of (1) the maximum term of the Option as set by its original terms, or (2) ten (10) years from the grant date. Unless otherwise determined by the Administrator, any extension of the term of an Option pursuant to this Section 6(a) shall comply with Section 409A of the Code to the extent necessary to avoid taxation thereunder.

 

(b) Term of Option. The term of each Option will be stated in the Award Agreement. In the case of an Incentive Stock Option, the term will be ten (10) years from the date of grant or such shorter term as may be provided in the Award Agreement as determined by Applicable Law. Moreover, in the case of an Incentive Stock Option granted to a Participant who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any Affiliate, the term of the Incentive Stock Option will be five (5) years from the date of grant or such shorter term as may be provided in the Award Agreement.

 

(c) Option Exercise Price and Consideration.

 

(i) Exercise Price. The per share exercise price for the Shares to be issued pursuant to exercise of an Option will be determined by the Administrator, subject to the following:

 

(1) In the case of an Incentive Stock Option

 

(A) granted to an Employee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Affiliate, the per Share exercise price will be no less than one hundred ten percent (110%) of the Fair Market Value per Share on the date of grant.

 

(B) granted to any Employee other than an Employee described in paragraph (A) immediately above, the per Share exercise price will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

 

- 11 -

 

 

(2) In the case of a Nonstatutory Stock Option, the per Share exercise price will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

 

(3) Notwithstanding the foregoing, Options may be granted with a per Share exercise price of less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant as determined by the Administrator in its sole and absolute discretion.

 

(ii) Waiting Period and Exercise Dates. At the time an Option is granted, the Administrator will fix the period within which the Option may be exercised and will determine any conditions that must be satisfied before the Option may be exercised. An Option may become exercisable upon completion of a specified period of service with the Company or an Affiliate and/or based on the achievement of Performance Goals during a Performance Period as set out in advance in the Participant’s Award Agreement. If an Option is exercisable based on the satisfaction of Performance Goals, then the Administrator will: (x) determine the nature, length and starting date of any Performance Period for such Option; (y) select the Performance Goals to be used to measure the performance; and (z) determine what additional vesting conditions, if any, should apply.

 

(iii) Form of Consideration. The Administrator will determine the acceptable form of consideration for exercising an Option, including the method of payment. In the case of an Incentive Stock Option, the Administrator will determine the acceptable form of consideration at the time of grant. Such consideration for both types of Options may, subject to Applicable Laws, consist entirely of: (1) cash; (2) wire transfer of immediately available funds, (3) other (already issued and paid for) Shares, provided that such Shares have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option will be exercised and provided that accepting such Shares will not result in any adverse accounting consequences to the Company, as the Administrator determines (i) in its sole discretion and (ii) not be incompatible with Applicable Laws and in particular the provisions of Luxembourg Company Law regarding the repurchase by the Company of its own shares; (4) consideration received by the Company under a broker-assisted (or other) cashless exercise program (whether through a broker or otherwise) implemented by the Company in connection with the Plan; (5) by net exercise; (6) such other consideration and method of payment for the issuance of Shares to the extent permitted by Applicable Laws; or (8) any combination of the foregoing methods of payment.

 

(d) Exercise of Option.

 

(i) Procedure for Exercise; Rights as a Shareholder. Any Option granted hereunder will be exercisable according to the terms of the Plan and at such times and under such conditions as determined by the Administrator and set forth in the Award Agreement. An Option may not be exercised for a fraction of a Share.

 

An Option will be deemed exercised when the Company receives: (i) a notice of exercise (in such form as the Administrator may specify from time to time) from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which the Option is exercised (together with full payment of any applicable taxes or other amounts required to be withheld or deducted with respect to the Option). Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Award Agreement and the Plan. Shares issued upon exercise of an Option will be issued in the name of the Participant or, if requested by the Participant, in the name of the Participant and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the shareholders register of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a shareholder will exist with respect to the Shares subject to an Option, notwithstanding the exercise of the Option. The Company will issue (or cause to be issued) such Shares promptly after the Option is exercised, or in the Administrator’s sole discretion, in amount in cash equal to the value of such Shares on the exercise date. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 14 of the Plan.

 

- 12 -

 

 

(ii) Termination of Relationship as a Service Provider. If a Participant ceases to be a Service Provider, other than upon the Participant’s termination as the result of the Participant’s death, Disability or Cause, the Participant may exercise his or her Option within such period of time as is specified in the Award Agreement to the extent that the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Award Agreement). In the absence of a specified time in the Award Agreement, the Option will remain exercisable for three (3) months following the Participant’s termination. Unless otherwise provided by the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will revert to the Plan. If after termination the Participant does not exercise his or her Option within the time specified by the Administrator, the Option will terminate, and the Shares covered by such Option will revert to the Plan.

 

(iii) Disability of Participant. If a Participant ceases to be a Service Provider as a result of the Participant’s Disability, the Participant may exercise his or her Option within such period of time as is specified in the Award Agreement to the extent the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Award Agreement). In the absence of a specified time in the Award Agreement, the Option will remain exercisable for twelve (12) months following the Participant’s termination. Unless otherwise provided by the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will revert to the Plan. If after termination the Participant does not exercise his or her Option within the time specified herein, the Option will terminate, and the Shares covered by such Option will revert to the Plan.

 

(iv) Death of Participant. If a Participant dies while a Service Provider, the Option may be exercised following the Participant’s death within such period of time as is specified in the Award Agreement to the extent that the Option is vested on the date of death (but in no event may the Option be exercised later than the expiration of the term of such Option as set forth in the Award Agreement), by the Participant’s designated beneficiary, provided such beneficiary has been designated prior to Participant’s death in a form acceptable to the Administrator. If no such beneficiary has been designated by the Participant, then such Option may be exercised by the personal representative of the Participant’s estate or by the person(s) to whom the Option is transferred pursuant to the Participant’s will or in accordance with the laws of descent and distribution. In the absence of a specified time in the Award Agreement, the Option will remain exercisable for twelve (12) months following Participant’s death. Unless otherwise provided by the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will revert to the Plan. If the Option is not so exercised within the time specified herein, the Option will terminate, and the Shares covered by such Option will revert to the Plan.

 

- 13 -

 

 

(v) Termination for Cause. If a Participant ceases to be a Service Provider as a result of being terminated for Cause, any outstanding Option (including any vested portion thereof) held by such Participant shall immediately terminate in its entirety upon the Participant being first notified of his or her termination for Cause and the Participant will be prohibited from exercising his or her Option from and after the date of such termination. All the Participant’s rights under any Option, including the right to exercise the Option, may be suspended pending an investigation of whether Participant will be terminated for Cause.

 

(e) Tolling Expiration. If the exercise of an Option would violate an applicable Federal, state, local, or foreign law, or result in liability under Section 16(b), then the Option will terminate on the earlier of (i) the expiration of the term of the Option set forth in the Award Agreement or (ii) the tenth (10th) day after the last day on which such exercise would violate such applicable Federal, state, local, or foreign law or result in liability under 16(b).

 

7. Restricted Stock.

 

(a) Grant of Restricted Stock. Subject to the terms and provisions of the Plan, the Administrator, at any time and from time to time, may grant Shares of Restricted Stock to Service Providers in such amounts as the Administrator, in its sole discretion, will determine.

 

(b) Restricted Stock Agreement. Each Award of Restricted Stock will be evidenced by an Award Agreement that will specify the Period of Restriction, the number of Shares granted, and such other terms and conditions as the Administrator, in its sole discretion, will determine. Unless the Administrator determines otherwise, the Company or a direct or indirect fully owned subsidiary of the Company as escrow agent will hold Shares of Restricted Stock until the restrictions on such Shares have lapsed. These restrictions may lapse upon the completion of a specified period of service with the Company or an Affiliate and/or based on the achievement of Performance Goals during a Performance Period as set out in advance in the Participant’s Award Agreement. If the unvested Shares of Restricted Stock are being earned upon the satisfaction of Performance Goals, then the Administrator will: (x) determine the nature, length and starting date of any Performance Period for each unvested Share; (y) select the Performance Goals to be used to measure the performance; and (z) determine what additional vesting conditions, if any, should apply.

 

(c) Transferability. Except as provided in this Section 7 or the Award Agreement, Shares of Restricted Stock may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the end of the applicable Period of Restriction.

 

(d) Other Restrictions. The Administrator, in its sole discretion, may impose such other restrictions on Shares of Restricted Stock as it may deem advisable or appropriate.

 

- 14 -

 

 

(e) Removal of Restrictions. Except as otherwise provided in this Section 7, Shares of Restricted Stock covered by each Restricted Stock grant made under the Plan will be released from escrow as soon as practicable after the last day of the Period of Restriction or at such other time as the Administrator may determine. The Administrator, in its discretion, may accelerate the time at which any restrictions will lapse or be removed.

 

(f) Voting Rights. During the Period of Restriction, Service Providers holding Shares of Restricted Stock granted hereunder may exercise full voting rights with respect to those Shares, unless the Administrator determines otherwise.

 

(g) Dividends and Other Distributions. During the Period of Restriction, Service Providers holding Shares of Restricted Stock will be entitled to receive all dividends and other distributions paid with respect to such Shares, unless the Administrator provides otherwise. If any such dividends or distributions are paid in Shares, the Shares will be subject to the same restrictions, including, without limitation, restrictions on transferability and forfeitability, as the Shares of Restricted Stock with respect to which they were paid.

 

(h) Return of Restricted Stock to Company. On the date set forth in the Award Agreement, the Restricted Stock for which restrictions have not lapsed will be cancelled and returned without consideration as treasury Shares to the Company and again will become available for grant under the Plan.

 

8. Restricted Stock Units.

 

(a) Grant. Restricted Stock Units may be granted at any time and from time to time as determined by the Administrator subject to Applicable Laws. After the Administrator determines that it will grant Restricted Stock Units under the Plan, it will advise the Participant in an Award Agreement of the terms, conditions, and restrictions (if any) related to the grant, including the number of Restricted Stock Units.

 

(b) Vesting Criteria and Other Terms. The Administrator will set vesting criteria in its discretion, which, depending on the extent to which the criteria are met, will determine the number of Restricted Stock Units that will be paid out to the Participant. A Restricted Stock Unit Award may vest upon completion of a specified period of service with the Company or an Affiliate and/or based on the achievement of Performance Goals during a Performance Period as set out in advance in the Participant’s Award Agreement. If Restricted Stock Units vest based upon satisfaction of Performance Goals, then the Administrator will: (x) determine the nature, length and starting date of any Performance Period for the Restricted Stock Units; (y) select the Performance Goals to be used to measure the performance; and (z) determine what additional vesting conditions, if any, should apply.

 

(c) Earning Restricted Stock Units. Upon meeting the applicable vesting criteria, the Participant will be entitled to receive a payout as determined by the Administrator. Notwithstanding the foregoing, at any time after the grant of Restricted Stock Units, the Administrator, in its sole discretion, may reduce or waive any vesting criteria that must be met to receive a payout.

 

- 15 -

 

 

(d) Dividend Equivalents. The Administrator may, in its sole discretion, award dividend equivalents in connection with the grant of Restricted Stock Units that may be settled in cash, in Shares of equivalent value, or in some combination thereof.

 

(e) Form and Timing of Payment. Payment of earned Restricted Stock Units will be made upon the date(s) determined by the Administrator and set forth in the Award Agreement. The Administrator, in its sole discretion, may only settle earned Restricted Stock Units in cash, Shares, or a combination of both.

 

(f) Cancellation. On the date set forth in the Award Agreement, all Shares reserved for payment under any unvested, unlapsed unearned Restricted Stock Units will become available for other purposes.

 

9. Stock Appreciation Rights.

 

(a) Grant of Stock Appreciation Rights. Subject to the terms and conditions of the Plan, a Stock Appreciation Right may be granted to Service Providers at any time and from time to time as will be determined by the Administrator, in its sole discretion.

 

(b) Number of Shares. The Administrator will have complete discretion to determine the number of Stock Appreciation Rights granted to any Service Provider subject to the number of shares to be issued pursuant to exercise of Stock Appreciation Rights does not exceed the maximum number of Shares the issuance of which was delegated to the Administrator by the Board of Directors.

 

(c) Exercise Price and Other Terms. The per share exercise price for the Shares to be issued pursuant to exercise of a Stock Appreciation Right will be determined by the Administrator and may, as determined by the Administrator in its sole discretion, be less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant. The Administrator, subject to the provisions of the Plan, will have complete discretion to determine the terms and conditions of Stock Appreciation Rights granted under the Plan.

 

(d) Stock Appreciation Right Agreement. Each Stock Appreciation Right grant will be evidenced by an Award Agreement that will specify the exercise price, the term of the Stock Appreciation Right, the conditions of exercise, and such other terms and conditions as the Administrator, in its sole discretion, will determine. A Stock Appreciation Right may become exercisable upon completion of a specified period of service with the Company or an Affiliate and/or based on the achievement of Performance Goals during a Performance Period as set out in advance in the Participant’s Award Agreement. If a Stock Appreciation Right is exercisable based on the satisfaction of Performance Goals, then the Administrator will: (x) determine the nature, length and starting date of any Performance Period for such Stock Appreciation Right; (y) select the Performance Goals to be used to measure the performance; and (z) determine what additional vesting conditions, if any, should apply.

 

(e) Expiration of Stock Appreciation Rights. A Stock Appreciation Right granted under the Plan will expire upon the date determined by the Administrator, in its sole discretion, and set forth in the Award Agreement. Notwithstanding the foregoing, the rules of Section 6(b) relating to the term, Section 6(d) relating to exercise, and Section 6(e) relating to tolling the expiration date also will apply to Stock Appreciation Rights.

 

- 16 -

 

 

(f) Payment of Stock Appreciation Right Amount. Upon exercise of a Stock Appreciation Right, a Participant will be entitled to receive payment from the Company in an amount determined by multiplying:

 

(i) The difference between the Fair Market Value of a Share on the date of exercise over the exercise price; times

 

(ii) The number of Shares with respect to which the Stock Appreciation Right is exercised.

 

At the discretion of the Administrator, the payment upon Stock Appreciation Right exercise may be in cash, in Shares of equivalent value, or in some combination thereof.

 

10. Stock Bonus Awards.

 

(a) Awards of Stock Bonuses. A Stock Bonus Award is an award of Shares to an eligible person without a purchase price that is not subject to any restrictions. All Stock Bonus Awards may but are not required to be made pursuant to an Award Agreement.

 

(b) Terms of Stock Bonus Awards. The Administrator will determine the number of Shares to be awarded to the Participant under a Stock Bonus Award.

 

(c) Form of Payment to Participant. Payment may be made in the form of cash, whole Shares, or a combination thereof, based on the Fair Market Value of the Shares subject to the Stock Bonus Award on the date of payment, as determined in the sole discretion of the Administrator.

 

11. Leaves of Absence/Transfer Between Locations. The Administrator shall have the discretion to determine at any time whether and to what extent the vesting of Awards shall be suspended during any leave of absence; provided, however, that in the absence of such determination, vesting of Awards shall continue during any paid leave and shall be suspended during any unpaid leave (unless otherwise required by Applicable Laws). A Participant will not cease to be an Employee in the case of (i) any leave of absence approved by the Participant’s employer or (ii) transfers between locations of the Company or between the Company or any Affiliate. If an Employee is holding an Incentive Stock Option and such leave exceeds three (3) months then, for purposes of Incentive Stock Option status only, such Employee’s service as an Employee shall be deemed terminated on the first (1st) day following such three (3) month period and the Incentive Stock Option shall thereafter automatically treated for tax purposes as a Nonstatutory Stock Option in accordance with Applicable Laws, unless reemployment upon the expiration of such leave is guaranteed by contract or statute, or unless provided otherwise pursuant to a written Company policy.

 

12. Change in Time Commitment. In the event a Participant’s regular level of time commitment in the performance of his or her services for the Company or any Affiliates is reduced (for example, and without limitation, if the Participant is an Employee of the Company and the Employee has a change in status from full-time to part-time or takes an extended leave of absence) after the date of grant of any Award, the Committee or the Administrator, in that party’s sole discretion, may (x) make a corresponding reduction in the number of Shares or cash amount subject to any portion of such Award that is scheduled to vest or become payable after the date of such change in time commitment, and (y) in lieu of or in combination with such a reduction, extend the vesting schedule applicable to such Award (in accordance with Section 409A of the Code, as applicable). In the event of any such reduction, the Participant will have no right with respect to any portion of the Award that is so amended.

 

- 17 -

 

 

13. Transferability of Awards. Unless determined otherwise by the Administrator, an Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant. If the Administrator makes an Award transferable, such Award will contain such additional terms and conditions as the Administrator deems appropriate provided, however, that in no event may any Award be transferred for consideration to a third-party financial institution.

 

14. Adjustments; Dissolution or Liquidation; Merger or Change in Control.

 

(a) Adjustments. In the event of a stock split, reverse stock split, stock dividend, combination, consolidation, recapitalization (including a recapitalization through a large nonrecurring cash dividend) or reclassification of the Shares, subdivision of the Shares, a rights offering, a reorganization, merger, spin-off, split-up, repurchase, or exchange of Shares or other securities of the Company or other significant corporate transaction, or other change affecting the Shares occurs, the Administrator, in order to prevent dilution, diminution or enlargement of the benefits or potential benefits intended to be made available under the Plan, will, in such manner as it may deem equitable, adjust the number, kind and class of securities that may be delivered under the Plan and/or the number, class, kind and price of securities covered by each outstanding Award. Notwithstanding the forgoing, all adjustments under this Section 14 shall be made in a manner that does not result in taxation under Section 409A of the Code.

 

(b) Dissolution or Liquidation. In the event of the proposed winding up, dissolution or liquidation of the Company, the Administrator will notify each Participant as soon as practicable prior to the effective date of such proposed transaction. To the extent it has not been previously exercised or settled, an Award will terminate immediately prior to the consummation of such proposed action.

 

(c) Corporate Transaction. In the event of (i) a transfer of all or substantially all of the Company’s assets, (ii) a merger, consolidation or other capital reorganization or business combination transaction of the Company with or into another corporation, entity or person, (iii) the consummation of a transaction, or series of related transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of more than 50% of the Company’s then outstanding capital stock, or (iv) a Change in Control (each, a “Corporate Transaction”), each outstanding Award (vested or unvested) will be treated as the Administrator determines, which determination may be made without the consent of any Participant and need not treat all outstanding Awards (or portion thereof) in an identical manner. Such determination, without the consent of any Participant, may provide (without limitation) for one or more of the following in the event of a Corporate Transaction: (A) the continuation of such outstanding Awards by the Company (if the Company is the surviving corporation); (B) the assumption of such outstanding Awards by the surviving corporation or its parent; (C) the substitution by the surviving corporation or its parent of new options or other equity awards for such Awards; (D) the cancellation of such Awards in exchange for a payment to the Participants equal to the excess of (1) the Fair Market Value of the Shares subject to such Awards as of the closing date of such Corporate Transaction over (2) the exercise price or purchase price paid or to be paid (if any) for the Shares subject to the Awards; provided further, that at the discretion of the Administrator, such payment may be subject to the same conditions that apply to the consideration that will be paid to holders of Shares in connection with the transaction; provided, however, that any payout in connection with a terminated award shall comply with Section 409A of the Code to the extent necessary to avoid taxation thereunder; (E) the full or partial acceleration of exercisability or vesting and accelerated expiration of an outstanding Award and lapse of the Company’s right to repurchase or re-acquire Shares acquired under an Award or lapse of forfeiture rights with respect to Shares acquired under an Award; (F) the opportunity for Participants to exercise their Options prior to the occurrence of the Corporate Transaction and the termination (for no consideration) upon the consummation of such Corporate Transaction of any Options not exercised prior thereto; or (G) the cancellation of outstanding Awards in exchange for no consideration.

 

- 18 -

 

 

(d) Change in Control. An Award may be subject to additional acceleration of vesting and exercisability upon or after a Change in Control as may be provided in the Award Agreement for such Award or as may be provided in any other written agreement between the Company or any Affiliate and the Participant, but in the absence of such provision, no such acceleration will occur.

 

15. Tax.

 

(a) Withholding Requirements. Prior to the delivery of any Shares or cash pursuant to an Award (or exercise thereof) or prior to any time the Award or Shares are subject to taxation or other Tax-Related Items, the Company and/or the Participant’s employer will have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy any Tax-Related Items or other items that are required to be withheld or deducted or otherwise applicable with respect to such Award.

 

(b) Withholding Arrangements. The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit a Participant to satisfy such withholding or deduction obligations or any other Tax-Related Items, in whole or in part by (without limitation) (a) paying cash, (b) electing to have the Company withhold otherwise deliverable cash or Shares, or (c) delivering to the Company already-owned Shares; provided that, unless specifically permitted by the Company, any proceeds derived from a cashless exercise must be an approved broker-assisted cashless exercise or the cash or Shares withheld or delivered must be limited to avoid financial accounting charges under applicable accounting guidance or Shares must have been previously held for the minimum duration required to avoid financial accounting charges under applicable accounting guidance. The Fair Market Value of the Shares to be withheld or delivered will be determined based on such methodology that the Company deems to be reasonable and in accordance with Applicable Laws.

 

(c) Compliance With Section 409A of the Code. To the extent applicable, awards will be designed and operated in such a manner that they are either exempt from the application of, or comply with, the requirements of Section 409A of the Code such that the grant, payment, settlement or deferral will not be subject to the additional tax or interest applicable under Section 409A of the Code. The Plan and each Award Agreement under the Plan is intended to meet the requirements of Section 409A of the Code (or an exemption therefrom) and will be construed and interpreted in accordance with such intent, except as otherwise determined in the sole discretion of the Administrator. To the extent that an Award or payment, or the settlement or deferral thereof, is subject to Section 409A of the Code the Award will be granted, paid, settled or deferred in a manner that will meet the requirements of Section 409A of the Code (or an exemption therefrom), such that the grant, payment, settlement or deferral will not be subject to the additional tax or interest applicable under Section 409A of the Code. In no event will the Company be responsible for or reimburse a Participant for any taxes or other penalties incurred as a result of applicable of Section 409A of the Code.

 

16. No Effect on Employment or Service. Neither the Plan nor any Award will confer upon a Participant any right with respect to continuing the Participant’s relationship as a Service Provider with the Company or any Affiliate, nor will they interfere in any way with the Participant’s right or the Company’s or any Affiliate’s right to terminate such relationship at any time, with or without cause, to the extent permitted by Applicable Laws.

 

- 19 -

 

 

17. Date of Grant. The date of grant of an Award will be, for all purposes, the date on which the Administrator makes the determination granting such Award, or such other later date as is determined by the Administrator. Notice of the determination will be provided to each Participant within a reasonable time after the date of such grant.

 

18. Corporate Records Control. In the event that the corporate records (e.g., Board consents, resolutions or minutes) documenting the corporate action constituting the grant contain terms (e.g., exercise price, vesting schedule or number of Shares) that are inconsistent with those in the Award Agreement or related grant documents as a result of a clerical error in the papering of the Award Agreement or related grant documents, the corporate records will control and the Participant will have no legally binding right to the incorrect term in the Award Agreement or related grant documents.

 

19. Clawback/Recovery. The Administrator may specify in an Award Agreement that the Participant’s rights, payments, and/or benefits with respect to an Award will be subject to reduction, cancellation, forfeiture, and/or recoupment upon the occurrence of certain specified events, in addition to any applicable vesting, performance or other conditions and restrictions of an Award. Notwithstanding any provisions to the contrary under this Plan, an Award granted under the Plan shall be subject to the Company’s clawback policy as may be established and/or amended from time to time. The Administrator may require a Participant to forfeit or return to and/or reimburse the Company for all or a portion of the Award and/or Shares issued under the Award, any amounts paid under the Award, and any payments or proceeds paid or provided upon disposition of the Shares issued under the Award, pursuant to the terms of such Company policy or as necessary or appropriate to comply with Applicable Laws.

 

20. Term of Plan. Subject to Section 24 of the Plan, the Plan will become effective as of the Effective Date. The Plan will continue in effect for a term of ten (10) years measured from the earlier of the date the Board approves this Plan or the approval of this Plan by the Company’s shareholder, unless terminated earlier under Section 21 of the Plan.

 

21. Amendment and Termination of the Plan.

 

(a) Amendment and Termination. The Board of Directors may at any time amend, alter, suspend or terminate the Plan.

 

(b) Shareholder Approval. The Company will seek to obtain shareholder approval of any Plan amendment to the extent necessary and desirable to comply with Applicable Laws.

 

- 20 -

 

 

(c) Effect of Amendment or Termination. No amendment, alteration, suspension or termination of the Plan will materially impair the rights of any Participant, unless mutually agreed otherwise between the Participant and the Administrator, which agreement must be in writing and signed by the Participant and the Company. Termination of the Plan will not affect the Administrator’s ability to exercise the powers granted to it hereunder with respect to Awards granted under the Plan prior to the date of such termination.

 

22. Conditions Upon Issuance of Shares.

 

(a) Legal Compliance. Shares will not be issued pursuant to the exercise or vesting (as applicable) of an Award unless the exercise or vesting of such Award and the issuance and delivery of such Shares will comply with Applicable Laws and will be further subject to the approval of counsel for the Company with respect to such compliance.

 

(b) Investment Representations. As a condition to the exercise of an Award, the Company may require the person exercising such Award to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required.

 

23. Inability to Obtain Authority. The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder, will relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority will not have been obtained.

 

24. Shareholder Approval. The Plan will be subject to approval by the shareholders of the Company within twelve (12) months after the date the Plan is adopted by the Board. Such shareholder approval will be obtained in the manner and to the degree required under Applicable Laws.

 

25. Governing Law. The Plan and all Awards hereunder shall be construed in accordance with and governed by the laws of the State of Delaware, but without regard to its conflict of law provisions provided that all matters regarding the issuance of new shares, the repurchase and holding by the Company and the cancellation of existing shares and the corporate authorization of the Board of Directors and generally all matters pertaining to corporate action are covered by Luxembourg Law.

 

o    O    o

 

 

- 21 -