|
|
|
|
|
Ireland
|
|
98-1111119
|
(State or Other Jurisdiction of Incorporation)
|
|
(IRS Employer Identification No.)
|
|
|
|
Alexandra House
|
||
The Sweepstakes, Ballsbridge
|
||
Dublin 4, Ireland
|
||
(Address of Principal Executive Offices including Zip Code)
|
||
|
|
|
|
A. W. Homan
Chief Legal Officer
Prothena Corporation plc
c/o Prothena Biosciences Inc
650 Gateway Boulevard
South San Francisco, California 94080
(650) 837-8550
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
|
Copy to:
Robert W. Phillips, Esq.
Latham & Watkins LLP
140 Scott Drive
Menlo Park, California 94025
(650) 328-4600
|
Large accelerated filer
|
o
|
Accelerated filer
|
ý
|
|
|
|
|
Non-accelerated filer
|
o
(Do not check if a smaller reporting company)
|
Smaller reporting company
|
o
|
|
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
|
Ordinary Shares, par value $0.01 per share
|
2,900,000
(2)
|
$21.04
(3)
|
$61,001,500
|
$7,857.00
|
(1)
|
Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the “
Securities Act
”), this Registration Statement shall also cover any additional ordinary shares of the Registrant that become issuable under the plan set forth herein by reason of any share dividend, share split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of the Registrant’s ordinary shares.
|
(2)
|
Represents 2,900,000 ordinary shares available for future issuance under the Prothena Corporation plc Amended and Restated 2012 Long Term Incentive Plan (the “
Plan
”).
|
(3)
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933 for the ordinary shares registered hereunder (based on the average of the high and low prices for the Registrant’s ordinary shares reported by The NASDAQ Stock Market on Jun
e 5, 20
14).
|
(a)
|
Registration Statement on Form 10 (File No. 001-35676) filed by the Registrant with the Commission under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), on October 1, 2012, including the description of the Company’s ordinary shares contained therein, and any amendment or report filed for the purpose of updating such description;
|
(b)
|
Annual Report on Form 10-K for the year ended December 31, 2013, as amended by Amendment No. 1 on Form 10-K/A;
|
(c)
|
The information specifically incorporated by reference into the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2013 from the Registrant’s Definitive Proxy Statement on Schedule 14A, filed with the Commission on March 31, 2014;
|
(d)
|
Quarterly Report on Form 10-Q for the quarter ended March 31, 2014; and
|
(e)
|
Current Reports on Form 8-K filed with the Commission on January 27, 2014 (only with respect to Item 8.01), January 29, 2014, March 3, 2014, March 18, 2014, and May 22, 2014.
|
“
(1)
|
Subject as hereinafter provided, any provision whether contained in the articles of a company or in any contract with a company or otherwise for exempting any officer of the company or any person employed by the company as auditor from, or indemnifying him against, any liability which by virtue of any rule of law would otherwise attach to him in respect of any negligence, default, breach of duty or breach of trust of which he may be guilty in relation to the company shall be void, so, however, that:
|
(a)
|
nothing in this section shall operate to deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him while any such provision was in force; and
|
(b)
|
notwithstanding anything in this section, a company may, in pursuance of any such provision as aforesaid, indemnify any such officer or auditor against any liability incurred by him in defending proceedings, whether civil or criminal, in which judgement is given in his favour or in which he is acquitted, or in connection with any application under section 391 (of the Companies Act, 1963), or section 42 of the Companies (Amendment) Act, 1983, in which relief is granted to him by the court.
|
(2)
|
Notwithstanding subsection (1), a company may purchase and maintain for any of its officers or auditors insurance in respect of any liability referred to in that subsection.
|
(3)
|
Notwithstanding any provision contained in an enactment, the articles of a company or otherwise, a director may be counted in the quorum and may vote on any resolution to purchase or maintain any insurance under which the director may benefit.
|
(4)
|
Any directors’ and officers’ insurance purchased or maintained by a company before the date on which the amendments made to this section by the Companies (Auditing and Accounting) Act 2003 came into operation is as valid and effective as it would have been if those amendments had been in operation when that insurance was purchased or maintained.
|
(5)
|
In this section a reference to an officer or auditor includes any former or current officer or auditor of the company, as the case may be.”
|
a.
|
The undersigned Registrant hereby undertakes:
|
1.
|
To file, during any period in which offers or sales are being made pursuant to this Registration Statement, a post-effective amendment to this Registration Statement:
|
(ii)
|
To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
|
(iii)
|
To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this 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
|
b.
|
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Sections 13(a) or 15(d) of the Exchange
|
h.
|
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 provisions described under “Item 6-Indemnification of Directors and Officers,” or otherwise, the registrant has been advised that in the opinion of the Commission 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.
|
|
|
Prothena Corporation plc
|
|
|
|
|
|
/s/ Dale B. Schenk
|
|
|
Dale B. Schenk
|
|
|
President and Chief Executive Officer
|
|
|
|
|
|
/s/ Tran B. Nguyen
|
|
|
Tran B. Nguyen
|
|
|
Chief Financial Officer
|
Name
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/Dale B. Schenk
|
|
President and Chief Executive Officer
|
|
June 6, 2014
|
Dale B. Schenk, Ph.D.
|
|
(Principal Executive Officer) and Director
|
|
|
|
|
|
|
|
/s/Tran B. Nguyen
|
|
Chief Financial Officer
|
|
June 6, 2014
|
Tran B. Nguyen
|
|
(Principal Financial Officer)
|
|
|
|
|
|
|
|
/s/Karin L. Walker
|
|
Controller, Chief Accounting Officer and Head of Accounting
|
|
June 6, 2014
|
Karin L. Walker
|
|
(Principal Accounting Officer)
|
|
|
|
|
|
|
|
/s/Lars G. Ekman
|
|
Chairman of the Board
|
|
June 6, 2014
|
Lars G. Ekman, M.D., Ph.D.
|
|
|
|
|
|
|
|
|
|
/s/Richard T. Collier
|
|
Director
|
|
June 6, 2014
|
Richard T. Collier
|
|
|
|
|
|
|
|
|
|
/s/Shane Cooke
|
|
Director
|
|
June 6, 2014
|
Shane Cooke
|
|
|
|
|
|
|
|
|
|
/s/Christopher S. Henney
|
|
Director
|
|
June 6, 2014
|
Christopher S. Henney, D.Sc., Ph.D.
|
|
|
|
|
|
|
|
|
|
/s/Dennis J. Selkoe
|
|
Director
|
|
June 6, 2014
|
Dennis J. Selkoe, M.D.
|
|
|
|
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
|
4.1
|
|
Amended and Restated Memorandum and Articles of Association.
(1)
|
|
|
|
5.1
|
|
Opinion of A&L Goodbody.
|
|
|
|
23.1
|
|
Consent of KPMG LLP.
|
|
|
|
23.2
|
|
Consent of KPMG.
|
|
|
|
23.3
|
|
Consent of A&L Goodbody (included in Exhibit 5.1).
|
|
|
|
24.1
|
|
Power of Attorney (included on the signature page hereto).
|
|
|
|
99.1
#
|
|
Prothena Corporation plc Amended and Restated 2012 Long Term Incentive Plan.
|
|
|
|
99.2
#
|
|
Form of Option Award Agreement between Prothena Corporation plc and Registrant’s Non-Employee Directors (used beginning January 29, 2013).
|
|
|
|
99.3
#
|
|
Form of Option Award Agreement between Prothena Corporation plc and Registrant’s Named Executive Officers (used beginning January 29, 2013 until February 4, 2014).
|
|
|
|
99.4
#
|
|
Form of Option Award Agreement between Prothena Corporation plc and Registrant’s Named Executive Officers (used beginning February 4, 2014).
|
|
|
|
(1)
|
Incorporated by reference from Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2012, filed with the Commission on March 29, 2013.
|
#
|
Indicates management contract or compensatory plan or arrangement.
|
Our ref
|
AFC/MHS 01405528
|
Your ref
|
|
Date
|
6 June 2014
|
1.
|
Prothena has been duly incorporated and is an existing public limited company under the laws of Ireland; and
|
2.
|
the Ordinary Shares have been duly authorised and when issued in accordance with the Amended and Restated Plan and the options or other equity awards granted or to be granted thereunder, will be validly issued, fully paid and not subject to calls for any additional payments (“nonassessable”).
|
|
|
Page
|
1.
|
Definitions
|
1
|
2.
|
Administration
|
4
|
3.
|
Shares Subject to the Plan
|
5
|
4.
|
Specific Terms of Awards
|
6
|
5.
|
Certain Provisions Applicable to Awards
|
10
|
6.
|
Transferability of Awards
|
10
|
7.
|
Change in Control Provisions
|
11
|
8.
|
Qualified Performance-Based Compensation
|
11
|
9.
|
General Provisions
|
12
|
1.
|
Definitions.
|
2.
|
Administration.
|
3.
|
Shares Subject to the Plan.
|
4.
|
Specific Terms of Awards.
|
5.
|
Certain Provisions Applicable to Awards.
|
6.
|
Transferability of Awards.
|
7.
|
Change in Control Provisions.
|
8.
|
Qualified Performance-Based Compensation.
|
9.
|
General Provisions.
|
Granted to:
|
|
[ ]
|
Grant Date:
|
|
[ ]
|
Shares subject to the Option:
|
|
[ ]
|
Exercise Price per Share:
|
|
$
[ ]
|
Expiration Date:
|
|
[ ]
|
Vesting Start Date:
|
|
[ ]
|
Vesting Schedule:
|
|
[ ]
|
Nonstatutory Stock Option
|
|
This Option is not intended to be an incentive stock option under section 422 of the Internal Revenue Code and will be interpreted accordingly.
|
|
|
|
Vesting
|
|
Your right to exercise this Option vests on the [ ] anniversary of the Vesting Start Date, as shown on the cover sheet. The percentage of the total number of Shares for which this Option will vest and become exercisable is as follows:
Anniversary of Vesting
Start Date
:
Percentage
[ ] [ ]%
Except as otherwise provided in the Plan, the entire Option vests and becomes exercisable if (i) following a Change in Control, your service as a Director is terminated for any reason; (ii) you die while you are still a Director; or (iii) your service as a Director terminates because of your Total and Permanent Disability (as defined below).
Except as provided above, all Shares will cease vesting as of the date your service with the Company has terminated for any reason.
|
|
|
|
Term
|
|
Your Option will expire in any event at the close of business at the Company’s registered office on the [ ] anniversary of the Option Grant Date, as shown on the cover sheet. (It will expire earlier if your service with the Company terminates, as described below.)
|
|
|
|
Death
|
|
If you die prior to expiration of this Option, then your right to purchase vested Shares under this Option will expire at the close of business at the Company’s registered office on the date that is twenty-four months after the date of death (or on the [ ] anniversary of the Date of Option Grant, if earlier). During that twenty-four month period, your estate or heirs may exercise this Option.
|
|
|
|
Disability
|
|
If your service as a Director terminates because of your Total and Permanent Disability, then your right to purchase vested Shares under this Option will expire at the close of business at the Company’s registered office on the date that is twenty-four months after your termination date (or on the [ ] anniversary of the Date of Option Grant, if earlier). “Total and Permanent Disability” means that you are unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted, or can be expected to last, for a continuous period of not less than one year.
|
|
|
|
Six Years of Service with the Company
|
|
If you have served as a Director for six or more years and your service as a Director is terminated by your retirement or resignation, then your right to exercise vested Shares under this Option will expire at the close of business at the Company’s registered office on the date that is twenty-four months after your termination date (or on the [ ] anniversary of the Date of Option Grant, if earlier).
|
|
|
|
Other Termination
|
|
Except as provided above, if you have not served as a Director for at least six years at the time your service as a Director terminates, then your right to exercise vested Shares under this Option will expire at the close of business at the Company’s registered office on the 90th day after your termination date (or on the [ ] anniversary of the Date of Option Grant, if earlier).
The Company determines when your service terminates for this purpose.
|
|
|
|
Restrictions on Exercise
|
|
The Company will not permit you to exercise this Option if the issuance of Shares at that time would violate any law, regulation or Company policy.
|
|
|
|
Notice of Exercise
|
|
When you wish to exercise this Option, you must complete and execute such documents, if any, and complete such processes, that the Company or a securities broker approved by the Company may require to accomplish the Option exercise (“Notice of Exercise”).
If someone else wants to exercise this Option after your death, that person must prove to the Company’s satisfaction that he or she is entitled to do so.
|
|
|
|
Form of Payment
|
|
When you submit your Notice of Exercise, you must include payment of the exercise price for the Shares you are purchasing. Payment may be made in one (or a combination of both) of the following forms:
|
|
|
|
|
|
- Your personal check, a cashier’s check or a money order.
- Irrevocable directions to a securities broker approved by the Company to sell your Shares subject to the Option and to deliver all or a portion of the sale proceeds to the Company in payment of the exercise price. (The balance of the sale proceeds, if any, less withholding taxes, will be delivered to you.) The directions must be given by signing forms, if any, provided by the Company or the securities broker.
|
|
|
|
Taxes
|
|
You will not be allowed to exercise this Option unless you make acceptable arrangements to pay any taxes that may be due as a result of the Option exercise.
|
|
|
|
Restrictions on Resale
|
|
By signing this Agreement, you agree not to sell any Shares received upon exercise of the Option at a time when applicable laws, regulations or Company policies prohibit a sale.
|
|
|
|
Transfer of Option
|
|
Prior to your death, only you may exercise this Option. You cannot transfer or assign this Option. For instance, you may not sell this Option or use it as security for a loan. If you attempt to do any of these things, this Option will immediately become invalid. You may, however, dispose of this Option in your will.
Regardless of any marital property settlement agreement, the Company or a securities broker, as applicable, is not obligated to honor a Notice of Exercise from your former spouse, nor is the Company or the securities broker obligated to recognize your former spouse’s interest in your Option in any other way.
|
|
|
|
Shareholder Rights
|
|
You, or your estate or heirs, have no rights as a shareholder of the Company until a proper Notice of Exercise has been submitted and the exercise price has been tendered. No adjustments are made for dividends or other rights if the applicable record date occurs before a proper Notice of Exercise has been submitted and the exercise price has been tendered, except as described in the Plan.
|
|
|
|
Adjustments
|
|
In the event of a stock split, a stock dividend or a similar change in Company stock, the number of Shares covered by this Option and the exercise price per Share may be adjusted pursuant to the Plan. In the event where the Company is a party to a merger, this Option will be handled in accordance with the Plan.
|
|
|
|
Applicable Law
|
|
This Agreement will be interpreted and enforced under the laws of Ireland.
|
|
|
|
The Plan and Other Agreements
|
|
The text of the Plan and any amendments thereto are incorporated in this Agreement by reference.
This Agreement and the Plan constitute the entire understanding between you and the Company regarding this Option. Any prior agreements, commitments or negotiations concerning this Option are superseded.
|
Granted to:
|
|
[ ]
|
Grant Date:
|
|
[ ]
|
Shares subject to the Option:
|
|
[ ]
|
Exercise Price per Share:
|
|
$[ ]
|
Expiration Date:
|
|
[ ]
|
Vesting Start Date:
|
|
[ ]
|
Vesting Schedule:
|
|
[ ]
|
Nonstatutory Stock Option
|
|
This Option is not intended to be an incentive stock option under section 422 of the Internal Revenue Code and will be interpreted accordingly.
|
|
|
|
Vesting
|
|
Your right to exercise this Option vests in increments over the [ ] period, commencing on the Vesting Start Date, as shown on the cover sheet. The percentage of the total number of Shares for which this Option will vest and become exercisable is as follows:
Date
:
Percentage
:
[ ] [ ]
The vesting will be cumulative and will not exceed 100% of the Shares subject to the Option. If the vesting results in fractional Shares, the number of Shares that vests on the relevant vesting date will be rounded down to the nearest whole number.
Except as otherwise provided in the Plan, the entire Option vests and becomes exercisable if (i) within 24 months following a Change in Control, your employment with the Company and its Subsidiaries is terminated for any reason other than Cause (as defined below) or you resign for Good Reason (as defined below) (such a resignation or termination being hereinafter referred to as an “
Involuntary Termination
”); (ii) you die while you are still an employee of the Company or a Subsidiary; or (iii) your service as an employee of the Company and its Subsidiaries terminates because of your Total and Permanent Disability (as defined below). In addition, except as otherwise provided above or in the Plan, the number of Shares subject to the Option that would have vested and become exercisable had you remained employed for the [ ] month period following an Involuntary Termination shall become vested and exercisable as of the date of your Involuntary Termination.
As used herein, and except as otherwise defined in an employment agreement between you and the Company or one of its Subsidiaries to the extent applicable, “Cause” shall mean any of the following: (a) your willful breach, habitual neglect, or poor performance of your job duties and responsibilities, as determined by the Company in its sole discretion; (b) your conviction (or the entry of a guilty plea or plea of
nolo contendre
) of any crime, excluding minor traffic offenses; (c) your commission of an act of dishonesty or breach of fiduciary duty; (d) your commission of a material violation of any of the personnel policies of the Company or a Subsidiary, as applicable, including but not limited to, violations of the Company’s confidentiality or stock trading policies or its policies against any form of harassment; or (e) any action or omission by you, which, as reasonably determined by the Company, is contrary to the business interest, reputation or goodwill of the Company or a Subsidiary.
|
|
|
As used herein, and except as otherwise defined in an employment agreement between you and the Company or one of its Subsidiaries to the extent applicable, “Good Reason” means (a) a material diminution in your authority, duties or responsibilities or a material diminution in your total base compensation (in each case, as determined by the Company in its sole discretion), or (b) that your primary job site is relocated and your new location increases your commute between home and work by at least thirty (30) miles (however, this does not apply to field-based sales representatives or similar field-based positions) or in the Company’s reasonable opinion, the new location requires that you move your home to a new location at least thirty (30) miles away from your home immediately prior to the change.
In order to receive the benefits of a resignation for “Good Reason”, you must provide your employer with written notice within ninety (90) days after the occurrence of such event and the employer shall then have thirty (30) days to cure such event. If the employer does not cure the event giving rise to Good Reason, your employment will terminate on the first day immediately following the end of thirty (30) day cure period.
Except as provided above or as otherwise provided in a written employment agreement between you and the Company or one of its Subsidiaries, all Shares will cease vesting as of the date your service with the Company and its Subsidiaries has terminated for any reason.
|
|
|
|
Term
|
|
Your Option will expire in any event at the close of business at the Company’s registered office on the [ ] anniversary of the Option Grant Date, as shown on the cover sheet. (It will expire earlier if your service with the Company and its Subsidiaries terminates, as described below.)
|
|
|
|
Death
|
|
If you die prior to expiration of this Option, then your right to purchase vested Shares under this Option will expire at the close of business at the Company’s registered office on the date that is twelve months after the date of death (or on the [ ] anniversary of the Date of Option Grant, if earlier). During that twelve month period, your estate or heirs may exercise this Option.
|
|
|
|
Disability
|
|
If your service as an employee of the Company and its Subsidiaries terminates because of your Total and Permanent Disability, then your right to purchase vested Shares under this Option will expire at the close of business at the Company’s registered office on the date that is twelve months after your termination date (or on the [ ] anniversary of the Date of Option Grant, if earlier). “Total and Permanent Disability” means that you are unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted, or can be expected to last, for a continuous period of not less than one year.
|
|
|
|
Involuntary Termination
|
|
If your service as an employee of the Company and its Subsidiaries terminates by reason of an Involuntary Termination, then your right to purchase vested Shares under this Option will expire at the close of business at the Company’s registered office on the date that is [ ] months after your termination date (or on the [ ] anniversary of the Date of Option Grant, if earlier).
|
|
|
|
Other Termination
|
|
If your service as an employee of the Company and its Subsidiaries terminates for any reason other than those set forth in the immediately preceding three paragraphs, then your right to purchase vested Shares under this Option will expire at the close of business at the Company’s registered office on the 90th day after your termination date (or on the [ ] anniversary of the Date of Option Grant, if earlier).
The Company determines when your service with the Company and its Subsidiaries terminates for this purpose.
|
|
|
|
Leaves of Absence
|
|
For purposes of this Option, your service does not terminate when you go on a military leave, a sick leave or another
bona fide
leave of absence, if the leave was approved by the Company in writing. But your service will be treated as terminating 90 days after you went on leave, unless your right to return to active work is guaranteed by law or by a contract. Your service terminates, in any event, when the approved leave ends, unless you immediately return to active work.
The Company determines which leaves count for this purpose.
|
|
|
|
Restrictions on Exercise
|
|
The Company will not permit you to exercise this Option if the issuance of Shares at that time would violate any law, regulation or Company policy.
|
|
|
|
Notice of Exercise
|
|
When you wish to exercise this Option, you must complete and execute such documents, if any, and complete such processes, that the Company or a securities broker approved by the Company may require to accomplish the Option exercise (“Notice of Exercise”).
If someone else wants to exercise this Option after your death, that person must prove to the Company’s satisfaction that he or she is entitled to do so.
|
|
|
|
Form of Payment
|
|
When you submit your Notice of Exercise, you must include payment of the exercise price for the Shares you are purchasing. Payment may be made in one (or a combination of both) of the following forms:
|
|
|
|
|
|
- Your personal check, a cashier’s check or a money order.
- Irrevocable directions to a securities broker approved by the Company to sell your Shares subject to the Option and to deliver all or a portion of the sale proceeds to the Company in payment of the exercise price. (The balance of the sale proceeds, if any, less withholding taxes, will be delivered to you.) The directions must be given by signing forms, if any, provided by the Company or the securities broker.
|
|
|
|
Taxes
|
|
You will not be allowed to exercise this Option unless you make acceptable arrangements to pay any taxes that may be due as a result of the Option exercise.
|
|
|
|
Restrictions on Resale
|
|
By signing this Agreement, you agree not to sell any Shares received upon exercise of the Option at a time when applicable laws, regulations or Company policies prohibit a sale.
|
|
|
|
Transfer of Option
|
|
Prior to your death, only you may exercise this Option. You cannot transfer or assign this Option. For instance, you may not sell this Option or use it as security for a loan. If you attempt to do any of these things, this Option will immediately become invalid. You may, however, dispose of this Option in your will.
Regardless of any marital property settlement agreement, the Company or a securities broker, as applicable, is not obligated to honor a Notice of Exercise from your former spouse, nor is the Company or the securities broker obligated to recognize your former spouse’s interest in your Option in any other way.
|
|
|
|
Retention Rights
|
|
Neither your Option nor this Agreement gives you the right to be retained by the Company or any Subsidiary in any capacity. The Company and its Subsidiaries reserve the right to terminate your service at any time, with or without Cause.
|
|
|
|
Shareholder Rights
|
|
You, or your estate or heirs, have no rights as a shareholder of the Company until a proper Notice of Exercise has been submitted and the exercise price has been tendered. No adjustments are made for dividends or other rights if the applicable record date occurs before a proper Notice of Exercise has been submitted and the exercise price has been tendered, except as described in the Plan.
|
|
|
|
Adjustments
|
|
In the event of a stock split, a stock dividend or a similar change in Company stock, the number of Shares covered by this Option and the exercise price per Share may be adjusted pursuant to the Plan. In the event where the Company is a party to a merger, this Option will be handled in accordance with the Plan.
|
|
|
|
Applicable Law
|
|
This Agreement will be interpreted and enforced under the laws of Ireland.
|
|
|
|
The Plan and Other Agreements
|
|
The text of the Plan and any amendments thereto are incorporated in this Agreement by reference.
This Agreement and the Plan constitute the entire understanding between you and the Company regarding this Option. Any prior agreements, commitments or negotiations concerning this Option are superseded.
|
Granted to:
|
|
[ ]
|
Grant Date:
|
|
[ ]
|
Shares subject to the Option:
|
|
[ ]
|
Exercise Price per Share:
|
|
$[ ]
|
Expiration Date:
|
|
[ ]
|
Vesting Start Date:
|
|
[ ]
|
Vesting Schedule:
|
|
[ ]
|
Nonstatutory Stock Option
|
|
This Option is not intended to be an incentive stock option under section 422 of the Internal Revenue Code and will be interpreted accordingly.
|
|
|
|
Vesting
|
|
Your right to exercise this Option vests in increments over the [ ] period, commencing on the Vesting Start Date, as shown on the cover sheet. The percentage of the total number of Shares for which this Option will vest and become exercisable is as follows:
[ ]
The vesting will be cumulative and will not exceed 100% of the Shares subject to the Option. If the vesting results in fractional Shares, the number of Shares that vests on the relevant vesting date will be rounded down to the nearest whole number.
Except as otherwise provided in the Plan, the entire Option vests and becomes exercisable if (i) within twenty-four (24) months following a Change in Control, your employment with the Company or one of its Subsidiaries is terminated for any reason other than Cause (as defined below) or you resign for Good Reason (as defined below) (such a resignation or termination being hereinafter referred to as an “
Involuntary Termination
”); (ii) you die while you are still an employee of the Company or a Subsidiary, as applicable; or (iii) your service as an employee of the Company or a Subsidiary, as applicable, terminates because of your Total and Permanent Disability (as defined below). In addition, except as otherwise provided above or in the Plan, the number of Shares subject to the Option that would have vested and become exercisable had you remained employed for the [ ] month period following an Involuntary Termination shall become vested and exercisable as of the date of your Involuntary Termination.
As used herein, and except as otherwise defined in an employment agreement between you and the Company or one of its Subsidiaries to the extent applicable, “Cause” shall mean any of the following: (a) your willful breach, habitual neglect, or poor performance of your job duties and responsibilities, as determined by the Company in its sole discretion; (b) your conviction (or the entry of a guilty plea or plea of
nolo contendre
) of any crime, excluding minor traffic offenses; (c) your commission of an act of dishonesty or breach of fiduciary duty; (d) your commission of a material violation of any of the personnel policies of the Company or a Subsidiary, as applicable, including but not limited to, violations of the Company’s confidentiality or stock trading policies or its policies against any form of harassment; or (e) any action or omission by you, which, as reasonably determined by the Company, is contrary to the business interest, reputation or goodwill of the Company or a Subsidiary.
|
|
|
As used herein, and except as otherwise defined in an employment agreement between you and the Company or one of its Subsidiaries to the extent applicable, “Good Reason” means (a) a material diminution in your authority, duties or responsibilities or a material diminution in your total base compensation (in each case, as determined by the Company in its sole discretion), or (b) that your primary job site is relocated and your new location increases your commute between home and work by at least thirty (30) miles (however, this does not apply to field-based sales representatives or similar field-based positions) or in the Company’s reasonable opinion, the new location requires that you move your home to a new location at least thirty (30) miles away from your home immediately prior to the change.
In order to receive the benefits of a resignation for “Good Reason”, you must provide your employer with written notice within ninety (90) days after the occurrence of such event and the employer shall then have thirty (30) days to cure such event. If the employer does not cure the event giving rise to Good Reason, your employment will terminate on the first day immediately following the end of thirty (30) day cure period.
Except as provided above or as otherwise provided in a written employment agreement between you and the Company or one of its Subsidiaries, all Shares will cease vesting as of the date your service with the Company or a Subsidiary, as applicable, has terminated for any reason.
|
|
|
|
Term
|
|
In order to receive the benefits of a resignation for “Good Reason”, you must provide your employer with written notice within ninety (90) days after the occurrence of such event and the employer shall then have thirty (30) days to cure such event. If the employer does not cure the event giving rise to Good Reason, your employment will terminate on the first day immediately following the end of thirty (30) day cure period.
|
|
|
|
Death
|
|
If you die prior to expiration of this Option, then your right to purchase vested Shares under this Option will expire at the close of business at the Company’s registered office on the date that is twelve (12) months after the date of death (or on the [ ] anniversary of the Grant Date, if earlier). During that twelve (12) month period, your estate or heirs may exercise this Option.
|
|
|
|
Disability
|
|
If your service as an employee of the Company or a Subsidiary, as applicable, terminates because of your Total and Permanent Disability, then your right to purchase vested Shares under this Option will expire at the close of business at the Company’s registered office on the date that is twelve (12) months after your termination date (or on the [ ] anniversary of the Grant Date, if earlier). “Total and Permanent Disability” means that you are unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted, or can be expected to last, for a continuous period of not less than one year.
|
|
|
|
Involuntary Termination
|
|
If your service as an employee of the Company or a Subsidiary, as applicable, terminates by reason of an Involuntary Termination, then your right to purchase vested Shares under this Option will expire at the close of business at the Company’s registered office on the date that is [ ]
months after your termination date (or on the [ ] anniversary of the Grant Date, if earlier).
|
|
|
|
Other Termination
|
|
If your service as an employee of the Company or a Subsidiary, as applicable, terminates for any reason other than those set forth in the immediately preceding three paragraphs, then your right to purchase vested Shares under this Option will expire at the close of business at the Company’s registered office on the 90th day after your termination date (or on the [ ] anniversary of the Grant Date, if earlier).
The Company determines when your service with the Company or a Subsidiary, as applicable, terminates for this purpose.
|
|
|
|
Leaves of Absence
|
|
For purposes of this Option, your service does not terminate when you go on a military leave, a sick leave or another
bona fide
leave of absence, if the leave was approved by the Company in writing. But your service will be treated as terminating ninety (90) days after you went on leave, unless your right to return to active work is guaranteed by law or by a contract. Your service terminates, in any event, when the approved leave ends, unless you immediately return to active work.
The Company determines which leaves count for this purpose.
|
|
|
|
Restrictions on Exercise
|
|
The Company will not permit you to exercise this Option if the issuance of Shares at that time would violate any law, regulation or Company policy.
|
|
|
|
Notice of Exercise
|
|
When you wish to exercise this Option, you must complete and execute such documents, if any, and complete such processes, that the Company or a securities broker approved by the Company may require to accomplish the Option exercise (“Notice of Exercise”).
If someone else wants to exercise this Option after your death, that person must prove to the Company’s satisfaction that he or she is entitled to do so.
|
|
|
|
Form of Payment
|
|
When you submit your Notice of Exercise, you must include payment of the exercise price for the Shares you are purchasing. Payment may be made in one (or a combination of both) of the following forms:
|
|
|
- Your personal check, a cashier’s check or a money order.
- Irrevocable directions to a securities broker approved by the Company to sell your Shares subject to the Option and to deliver all or a portion of the sale proceeds to the Company in payment of the exercise price. (The balance of the sale proceeds, if any, less withholding taxes, will be delivered to you.) The directions must be given by signing forms, if any, provided by the Company or the securities broker.
|
|
|
|
Taxes
|
|
You will not be allowed to exercise this Option unless you make acceptable arrangements to pay any taxes that may be due as a result of the Option exercise.
|
|
|
|
Restrictions on Resale
|
|
By signing this Agreement, you agree not to sell any Shares received upon exercise of the Option at a time when applicable laws, regulations or Company policies prohibit a sale.
|
|
|
|
Transfer of Option
|
|
Prior to your death, only you may exercise this Option. You cannot transfer or assign this Option. For instance, you may not sell this Option or use it as security for a loan. If you attempt to do any of these things, this Option will immediately become invalid. You may, however, dispose of this Option in your will.
Regardless of any marital property settlement agreement, the Company or a securities broker, as applicable, is not obligated to honor a Notice of Exercise from your former spouse, nor is the Company or the securities broker obligated to recognize your former spouse’s interest in your Option in any other way.
|
|
|
|
Retention Rights
|
|
Neither your Option nor this Agreement gives you the right to be retained by the Company or any Subsidiary in any capacity. The Company and its Subsidiaries reserve the right to terminate your service at any time, with or without Cause.
|
|
|
|
Shareholder Rights
|
|
You, or your estate or heirs, have no rights as a shareholder of the Company until a proper Notice of Exercise has been submitted and the exercise price has been tendered. No adjustments are made for dividends or other rights if the applicable record date occurs before a proper Notice of Exercise has been submitted and the exercise price has been tendered, except as described in the Plan.
|
|
|
|
Adjustments
|
|
In the event of a stock split, a stock dividend or a similar change in Company stock, the number of Shares covered by this Option and the exercise price per Share may be adjusted pursuant to the Plan. In the event where the Company is a party to a merger, this Option will be handled in accordance with the Plan.
|
|
|
|
Electronic Communications
|
|
You agree to contract electronically regarding your participation in the Plan and to the receipt of electronic notifications, documents, payments or other communications from the Company in connection with the Plan, to the normal electronic mail address used by you for the purposes of your employment or such other address as may be from time to time notified for that purpose by you to the Company.
|
|
|
|
Severability
|
|
All the terms and provisions of this Agreement are distinct and severable, and if any term or provision is held unenforceable, illegal or void in whole or in part by any court, regulatory authority or other competent authority it shall to that extent be deemed not to form part of this Agreement, and the enforceability, legality and validity of the remainder of this Agreement will not be affected; if any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to make it valid, enforceable and legal.
|
|
|
|
Applicable Law
|
|
This Agreement will be interpreted and enforced under the laws of Ireland.
|
|
|
|
The Plan and Other Agreements
|
|
The text of the Plan and any amendments thereto are incorporated in this Agreement by reference.
This Agreement and the Plan constitute the entire understanding between you and the Company regarding this Option. Any prior agreements, commitments or negotiations concerning this Option are superseded.
|