As filed with the Securities and Exchange Commission
on December 4, 2023
Registration No. 333-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ADC THERAPEUTICS SA
(Exact name of registrant as specified in its charter)
Switzerland |
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Not Applicable |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
Biopôle, Route de la Corniche 3B, 1066
Epalinges, Switzerland
(Address of Principal Executive Offices)
ADC Therapeutics SA Conditional Share Plan
ADC Therapeutics SA Inducement Plan
(Full title of the plans)
ADC Therapeutics
America, Inc.
430 Mountain
Avenue, 4th Floor
135 Route
202/206
Murray
Hill, NJ 07974
(Name and
Address of Agent For Service)
(908)
546-5556
(Telephone number, Including Area Code,
of Agent For Service)
Copies of all communications, including
all communications sent to the agent for service, should be sent to:
Deanna L. Kirkpatrick
Yasin Keshvargar
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
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 ☐ |
(Do not check if a 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 7(a)(2)(B) of the Securities Act. ☐
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified
in Item 1 and Item 2 of Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act.
In accordance with the rules and regulations of the U.S. Securities and Exchange Commission (the “Commission”) and
the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference:
(a) The Registrant’s Annual Report on Form 20-F filed with the
Commission on March 15, 2023 (Registration No. 001-39071), which contains the Registrant’s audited financial statements for the
latest fiscal year for which such statements have been filed;
(b) The Registrant’s Reports on Form 6-K filed with the SEC on
March 15, 2023 (only with respect to “Compensation Report of ADC Therapeutics SA for the Year Ended December 31, 2022—2. Compensation
of the Board of Directors” and “Compensation Report of ADC Therapeutics SA for the Year Ended December 31, 2022—3. Compensation
of the Members of Executive Management” in Exhibit 99.1 thereto), May 9, 2023 (only with respect to Exhibits 99.1 and 99.2), August
8, 2023 (only with respect to Exhibits 99.1 and 99.2) and November 7, 2023 (only with respect to Exhibits 99.1 and 99.2); and
(c) The description of the Registrant’s share capital which is
contained in the Registrant’s Registration Statement Form 8-A (Registration No. 001-39071), dated May 11, 2020, including any amendments
or supplements thereto.
In addition, all documents subsequently filed by the Registrant with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities
offered have been sold or which deregisters all securities then remaining unsold, including any Reports of Foreign Private Issuers on
Form 6-K submitted during such period (or portion thereof) that is identified in such form as being incorporated by reference into this
Registration Statement, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the
date of the filing of such documents. The Registrant is not incorporating by reference any documents or portions thereof, whether specifically
listed above or filed in the future, that are not deemed “filed” with the Commission.
Any statement contained 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 herein, (or in any other subsequently filed document which also is incorporated or 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.
Under Swiss law, a corporation may indemnify its directors or officers
against losses and expenses (except for such losses and expenses arising from willful misconduct or negligence, although legal scholars
advocate that at least gross negligence be required), including attorney’s fees, judgments, fines and settlement amounts actually
and reasonably incurred in a civil or criminal action, suit or proceeding by reason of having been the representative of, or serving at
the request of, the corporation.
Subject to Swiss law, the Registrant’s articles of association
provides for indemnification of the existing and former members of the Registrant’s board of directors, executive committee as well
as their heirs, executors and administrators, against liabilities arising in connection with the performance of their duties in such capacity,
and the Registrant’s articles of association require the Registrant to advance the expenses of defending any act, suit or proceeding
to existing and former members of the Registrant’s board of directors and executive committee to the extent not included in insurance
coverage or advanced by third parties.
In addition, under general principles of Swiss employment law, an employer
may be required to indemnify an employee against losses and expenses incurred by such employee in the proper execution of their duties
under the employment agreement with the company.
The Registrant has entered into indemnification agreements with each
of the members of its board of directors and executive committee. The indemnification agreements and the Registrant’s articles of
association require the Registrant to indemnify the Registrant’s executive officers and directors to the fullest extent permitted
by law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the Registrant, 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Item 9. Undertakings.
Insofar as indemnification for liabilities arising
under the U.S. Securities Act of 1933, as amended (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
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.
The undersigned 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:
(a) To
include any prospectus required by section 10(a)(3) of the Securities Act;
(b) 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. 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) (§230.424(b) of this chapter) if, in
the aggregate, the changes in volume and price represent no more than 20.0% change in the maximum aggregate offering price set forth in
the “Calculation of Registration Fee” table in the effective Registration Statement; and
(c) 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.
(2) That,
for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus
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.
(4) To
file a post-effective amendment to the Registration Statement to include any financial statements required by “8.A. of Form 20-F
(17 CFR 249.220f)” at the start of any delayed offering or throughout a continuous offering. Financial statements and information
otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided that the Registrant includes in the prospectus,
by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary
to ensure that all other information in the prospectus is at least as current as the date of those financial statements.
(5) That
for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Company pursuant to Rule
424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared
effective.
(6) For
the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.
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 this Registration
Statement and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in
the city of Epalinges, Switzerland on December 4, 2023.
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ADC THERAPEUTICS SA |
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By: |
/s/ Ameet Mallik |
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Name: |
Ameet Mallik |
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Title: |
Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Ameet Mallik, Jose Carmona and Peter Graham and each of them, individually, as his or her
true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, in connection with this registration statement, including to sign in the name and on behalf
of the undersigned, this registration statement and any and all amendments thereto, including post-effective amendments and registrations
filed pursuant to Rule 462 under the Securities Act, as amended, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the U.S. Securities and Exchange Commission, granting unto each such attorney-in-fact and agent full power
and authority to do and perform each and every act in person, hereby ratifying and confirming all that each said attorney-in-fact and
agent, or his or her 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 |
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Title |
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Date |
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/s/ Ameet Mallik |
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Chief Executive Officer and Director |
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12/4/23 |
Ameet Mallik |
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(Principal Executive Officer) |
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/s/ Jose Carmona |
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Chief Financial Officer |
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12/4/23 |
Jose Carmona |
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(Principal Financial Officer) |
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/s/ Lisa Källebo |
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Vice President, Corporate Controller and Chief
Accounting Officer
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12/4/23 |
Lisa Källebo |
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(Principal Accounting Officer) |
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/s/ Ron Squarer |
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12/4/23 |
Ron Squarer |
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Chairman of the Board of Directors |
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/s/ Peter Hug |
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12/4/23 |
Peter Hug |
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Vice Chairman of the Board of Directors |
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/s/ Viviane Monges |
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12/4/23 |
Viviane Monges |
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Director |
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/s/ Robert Azelby |
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12/4/23 |
Robert Azelby |
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Director |
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/s/ Jean-Pierre Bizzari |
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12/4/23 |
Jean-Pierre Bizzari |
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Director |
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/s/ Thomas Pfisterer |
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12/4/23 |
Thomas Pfisterer |
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Director |
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/s/ Tyrell J. Rivers |
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12/4/23 |
Tyrell J. Rivers |
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Director |
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/s/ Victor Sandor
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12/4/23 |
Victor Sandor
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Director |
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/s/ Peter Graham |
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12/4/23 |
Peter Graham |
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Chief Legal Officer, Authorized Representative in the United States |
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ADC Therapeutics America, Inc. |
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Exhibit 5
ADC Therapeutics SA
Biopôle
Route de la Corniche 3 B
1066 Epalinges
Switzerland
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Homburger AG
Prime Tower
Hardstrasse 201
CH-8005 Zurich
homburger.ch
T +41 43 222 10 00 |
December 4, 2023
ADC Therapeutics SA – Registration Statement on Form S-8
Ladies and Gentlemen
We have acted as special Swiss counsel to ADC Therapeutics
SA, a stock corporation incorporated under the laws of Switzerland (the Company), in connection with the filing of a registration
statement on Form S-8 (the Registration Statement), to be filed with the United States Securities and Exchange Commission (the
SEC) on the date hereof for the purpose of registering under the United States Securities Act of 1933, as amended (the Securities
Act), an aggregate of 9,000,000 common shares of the Company, each with a nominal value of CHF 0.08 (the Common Shares).
As such counsel, we have been requested to give our opinion as to certain legal matters of Swiss law.
Capitalized terms used but not defined herein shall
have the meaning ascribed to them in the Documents (as defined below).
This opinion is confined to and given on the basis
of the laws of Switzerland in force at the date hereof. Such laws and the interpretation thereof are subject to change.
This opinion is also confined to:
| a) | the matters stated herein and is not to be read as extending, by implication or otherwise, to any other
matter, agreement or document referred to in any of the Documents (as defined below); and |
| b) | the documents listed below (collectively, the Documents). |
For the purpose of giving this opinion, we have
only examined originals or copies of the following documents:
| (i) | an electronic copy of the Registration Statement; |
| (ii) | an electronic copy of the Company's conditional
share capital plan effective as of December 1, 2023 (the Conditional Share Capital
Plan); |
| (iii) | an electronic copy of the Company's inducement
award plan effective as of December 1, 2023 (the Inducement Award Plan, together
with the Conditional Share Capital Plan, the Plans); |
| (iv) | an electronic copy of a written resolution
of the board of directors of the Company, dated December 1, 2023, approving, inter alia,
the Plans (the Board Resolution); |
| (v) | a certified copy of the notarized articles of association (statuts) of the Company dated June 14,
2023 (the Articles of Association), containing, inter alia, (i) a capital range in the amount of CHF 7,123,355.68 (lower
limit) and CHF 10,685,033.52 (upper limit) (the Capital Range), and (ii) a conditional share capital in the amount of CHF 936,000
destined for employee participation (the Conditional Share Capital); and |
| (vi) | a certified excerpt from the Commercial Register of the Canton of Vaud, Switzerland, dated November 22,
2023, relating to the Company (the Excerpt). |
No documents have been reviewed by us in connection
with this opinion other than those listed above. Accordingly, our opinion is limited to the Documents and their impact on the parties
under Swiss law.
In this opinion, Swiss legal concepts are expressed
in English terms and not in their original language. These concepts may not be identical to the concepts described by the same English
terms as they exist under the laws of other jurisdictions. With respect to Documents governed by laws other than the laws of Switzerland,
for purposes of this opinion we have relied on the plain meaning of the words and expressions contained therein without regard to any
import they may have under the relevant governing law.
In rendering the opinion below, we have assumed
the following:
| (a) | all documents produced to us as originals are authentic and complete, and all documents produced to us
as copies (including, without limitation, electronic copies) conform to the original; |
| (b) | all documents produced to us as originals and the originals of all documents produced to us as copies
were duly executed and certified, as applicable, by the individuals purported to have executed or certified, as the case may be, such
documents; |
| (c) | all documents produced to us in draft form will be executed in the form of the draft submitted to us; |
| (d) | all signatures appearing on all original documents or copies thereof which we have examined are genuine; |
| (e) | each party to the Documents is a corporation or other legal entity duly organized and validly existing
and in good standing (if applicable) under the laws of the jurisdiction of its incorporation and/or establishment and none of the parties
to the Documents (other than the Company) has passed or, until the issuance of all Common Shares, will have passed a voluntary winding-up
resolution; no petition has been, or, until the issuance of all Common Shares, will be presented or order made by a court for the winding-up,
dissolution, bankruptcy or administration of any party (other than the Company); and no receiver, trustee in bankruptcy, administrator
or similar officer has been or, until the issuance of all Common Shares, will have been appointed in relation to any of the parties (other
than the Company) or any of their assets or revenues; |
| (f) | to the extent relevant for purposes of this opinion, any and all information contained in the Documents
is and will be true, complete and accurate at all relevant times; |
| (g) | no laws (other than those of Switzerland) affect any of the conclusions stated in this opinion; |
| (h) | the Registration Statement has been filed by the Company; |
| (i) | the filing of the Registration Statement with the SEC has been authorized by all necessary actions under
all applicable laws other than Swiss law; |
| (j) | the Registration Statement, the Excerpt and the Articles of Association are unchanged, correct, complete
and up-to-date and in full force and effect as of the date hereof and no changes have been made which should have been or should be reflected
in the Registration Statement, the Excerpt or the Articles of Association, as the case may be, as of the date hereof; |
| (k) | the Board Resolution (i) has been duly resolved in a meeting duly convened and otherwise in the manner
set forth therein, (ii) has not been amended, and (iii) is in full force and effect; |
| (l) | the Plans have not been amended and are in full force and effect; |
| (m) | prior to the issuance of any Common Shares, the board of directors of the Company will have duly authorized
the issuance of any Common Shares or rights to receive Common Shares and will have validly excluded the pre-emptive rights of the existing
shareholders for purposes of the offering of Common Shares under the applicable Plan as contemplated in the Registration Statement, and
such authorization and exclusion will not have been amended and will be in full force and effect until the issuance of all Common Shares; |
| (n) | any Common Shares issued out of the Capital Range and/or the Conditional Share Capital will be listed
on the New York Stock Exchange in accordance with applicable laws and regulations; |
| (o) | all notices by which a right to receive Common Shares issued out of the Capital Range and/or the Conditional
Share Capital is exercised will be duly delivered in accordance with Swiss law, the applicable Plan and any applicable contractual arrangements; |
| (p) | to the extent the Company issues Common Shares out of the Capital Range and/or the Conditional Share Capital
against cash, the performance of the contribution in money shall be made at a banking institution subject to the Swiss Federal Act on
Banks and Savings Banks of November 8, 1934, as amended; |
| (q) | the Company has not entered and will not enter into any transaction which could be construed as repayment
of share capital (restitution des versements) and has not undertaken and will not undertake an acquisition in kind (reprise
de biens) or intended acquisition in kind (reprise de biens envisagée) without complying with the formal procedure set
forth in article 628 of the Swiss Code of Obligations; and |
| (r) | all authorizations, approvals, consents, licenses, exemptions, other than as required by mandatory Swiss
law applicable to the Company or the Articles of Association, and other requirements for the filing of the Registration Statement or for
any other activities carried on in view of, or in connection with, the performance of the obligations expressed to be undertaken by the
Company in the Registration Statement have been duly obtained or fulfilled in due time and are and will remain in full force and effect,
and any related conditions to which the parties thereto are subject have been satisfied. |
Based on the foregoing assumptions and subject
to the qualifications set out below, we express the following opinion:
| 1. | The Company is a corporation (société anonyme) duly incorporated and validly existing
under the laws of Switzerland with all requisite corporate power and authority to enter into, to perform and to conduct its business as
described in the Articles of Association. |
| 2. | The Common Shares that may be issued from the Capital Range and/or the Conditional Share Capital, if and
when such Common Shares are issued pursuant to the Articles of Association, the applicable Plan, any applicable contractual arrangements
and Swiss law, and after the subscription amount for such Common Shares has been paid-in in cash or by way of set-off, and when such Common
Shares have been entered into the Company's book of uncertificated securities, will be validly issued, fully paid as to their nominal
value and non-assessable. |
The above opinions
are subject to the following qualifications:
| (a) | The lawyers of our firm are admitted to the Zurich bar and do not hold themselves to be experts in any
laws other than the laws of Switzerland. Accordingly, our opinion is confined to Swiss |
law only, based on our independent
professional judgment. We have abstained from examining any issues of any other laws.
| (b) | The exercise of voting rights and rights related thereto with respect to any Common Shares is only permissible
if and when such Common Shares have been validly issued and in any case after registration in the Company's share register as a shareholder
with voting rights in accordance with the provisions of, and subject to the limitations provided in, the Articles of Association. |
| (c) | We have not investigated or verified the truth or accuracy of the information contained in the Registration
Statement, nor have we been responsible for ensuring that no material information has been omitted from it. |
| (d) | We express no opinion as to regulatory matters or as to any commercial, accounting, calculating, auditing
or other non-legal matter. |
We have issued this opinion as of the date hereof
and we assume no obligation to advise you of any changes that are made or brought to our attention hereafter.
We hereby consent to the 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 Securities Act.
This opinion shall be governed by and construed
in accordance with the laws of Switzerland. We confirm our understanding that all disputes arising out of or in connection with this opinion
shall be subject to the exclusive jurisdiction of the courts of the Canton of Zurich, Switzerland, venue being Zurich 1.
[Signature page follows]
Sincerely yours
Homburger AG
/s/ Daniel
Häusermann
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 ADC Therapeutics SA of our report dated March 15, 2023 relating to the consolidated financial statements and
the effectiveness of internal control over financial reporting, which
appears in ADC Therapeutics SA’s Annual Report on Form 20-F for the year ended December 31, 2022.
/s/ PricewaterhouseCoopers SA
Lausanne, Switzerland
December 4, 2023
Exhibit 99.1
ADC THERAPEUTICS SA
CONDITIONAL SHARE CAPITAL PLAN
Section 1. Purpose. The purpose of the ADC
Therapeutics Conditional Share Capital Plan (the “Plan”) is to motivate and reward employees, directors, consultants,
contractors and other persons providing services to ADC Therapeutics SA (the “Company”) and its Subsidiaries to perform
at the highest level and to further the best interests of the Company and its shareholders. Capitalized terms not otherwise defined herein
are defined in Section 21.
Section 2. Eligibility.
(a) Any employee (including members of
the executive management), Non-Employee Director, consultant, contractor or other persons providing services to the Company or any Subsidiary
shall be eligible to be selected to receive an Award under the Plan.
(b) Holders of equity compensation awards
granted by a company acquired by the Company (or whose business is acquired by the Company) or with which the Company combines (whether
by way of amalgamation, merger, sale and purchase of shares or other securities or otherwise) are eligible to be selected to receive grants
of Replacement Awards under the Plan.
Section 3. Administration.
(a) The Plan shall be administered by
the Committee. The Board may designate one or more directors of the Company as a subcommittee who may act for the Committee if necessary
to satisfy the requirements of this Section. The Committee may issue rules and regulations for administration of the Plan.
(b) Subject to the terms of the Plan and
applicable law, the Committee (or its delegate) shall have full power and authority to:
(i) designate Participants;
(ii) determine the type or
types of Awards (including Replacement Awards) to be granted to each Participant under the Plan;
(iii) determine the number
of Shares to be covered by (or with respect to which payments, rights or other matters are to be calculated in connection with) Awards;
(iv) determine the terms
and conditions of any Award;
(v) determine whether, to
what extent and under what circumstances Awards may be settled or exercised in cash, Shares, other Awards, other property, net settlement
(including cashless exercise) or any combination thereof, or canceled, forfeited or suspended, and the method or methods by which Awards
may be settled, exercised, canceled, forfeited or suspended;
(vi) determine whether, to
what extent and under what circumstances cash, Shares, other Awards, other property and other amounts payable with respect to an Award
under the Plan shall be deferred either automatically or at the election of the holder thereof or of the Committee;
(vii) determine whether an
Award for the benefit of a Non-Employee Director will be granted to an affiliate of the Non-Employee Director; provided, that no
such grant shall be made while the Company is Publicly Listed unless the Company would be eligible to use Securities and Exchange Commission
Form S-8 to register the offer and sale of Common Stock to the affiliate pursuant to the Award;
(viii) interpret and administer
the Plan and any instrument or agreement relating to, or Award made under, the Plan;
(ix) establish, amend, suspend
or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and
(x) make any other determination
and take any other action that the Committee deems necessary or desirable for the administration of the Plan.
(c) All decisions of the Committee shall
be final, conclusive and binding upon all parties, including the Company, its shareholders and Participants and any Beneficiaries thereof.
Section 4. Shares Available for Awards.
(a) Subject to adjustment as provided
in Section 4(c), the maximum number of Shares available for issuance under the Plan shall
not exceed the amount of the Company’s conditional share capital available pursuant to Article 4b of the Articles of Association
of the Company, as amended from time to time. Article 4b of the Articles of Association was last amended by shareholders on June 14, 2023.
(b) Any Shares subject to an Award (other
than a Replacement Award and any Award granted out of the authorized shares of an acquired plan) that expires, is canceled, forfeited
or otherwise terminates without the delivery of such Shares, including any Shares subject to such Award to the extent that such Award
is settled without the issuance of Shares, shall again be, or shall become, available for issuance under the Plan. Any Shares surrendered
or withheld in payment of any grant, acquisition or exercise price of such Award or taxes, duties or social security related to such Award
shall become available for issuance under the Plan.
(c) In the event that, as a result of
any dividend (other than ordinary cash dividends) or other distribution (whether in the form of cash, Shares or other securities, but
other than ordinary cash distributions made in lieu of ordinary cash dividends), recapitalization, share split (share subdivision), reverse
share split (share consolidation), reorganization, merger, amalgamation, consolidation, split-up, spin-off, combination, repurchase or
exchange of Shares or other securities of the Company, issuance of warrants or other rights to acquire Shares or other
securities of the Company, or other similar corporate transaction or
event affecting the Shares (but not, for avoidance of doubt, a mere issuance or repurchase of Shares or other securities in exchange for
value, including, without limitation, issuance of shares as compensation for services), or of changes in applicable laws, regulations
or accounting principles, an adjustment is necessary in order to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall, subject to Section 17, adjust equitably any or all of:
(i) the number and type of
Shares (or other securities) which thereafter may be made the subject of Awards;
(ii) the number and type
of Shares (or other securities) subject to outstanding Awards;
(iii) the grant, acquisition,
exercise price with respect to any Award or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding
Award; and
(iv) the terms and conditions
of any outstanding Awards, including the performance criteria of any Performance Awards;
provided, however, that the number of Shares subject to any
Award denominated in Shares shall always be a whole number.
(d) Any Shares delivered pursuant to an
Award may consist, in whole or in part, of Shares issued out of the Company’s conditional share capital pursuant to Article 4b of
the Articles of Association of the Company, as amended from time to time. In its sole discretion, the Company or any of its Subsidiaries
or any person appointed by any of them may, in its own name or in the name of a Participant and on behalf of a Participant, subscribe
to Shares, pay in the issue price and do any other action to create the Shares or direct the Participant to do so. Any Shares delivered
pursuant to an Award shall be issued as fully paid shares, and the exercise price and/or subscription price per Share pursuant to any
Award, if applicable, shall always be at least equal to or greater than the par value per Share. A Participant shall not have any rights
as a shareholder of the Company (including as to voting and dividends) until Shares are actually settled and delivered to the Participant
and upon entry of the Participant into the share register of the Company as shareholder of such Shares with voting rights.
Section 5. Restricted Shares and RSUs.
The Committee is authorized to grant Awards of Restricted Shares and RSUs to Participants with the following terms and conditions and
with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine.
(a) The applicable Award Document shall
specify the vesting schedule and, with respect to RSUs, the delivery schedule (which may include deferred delivery later than the vesting
date) and whether the Award of Restricted Shares or RSUs is entitled to dividends or dividend equivalents, voting rights or any other
rights.
(b) Restricted Shares and RSUs shall be
subject to such restrictions as the Committee may impose (including any limitation on the right to vote Restricted Shares or the right
to receive any dividend, dividend equivalent or other right), which restrictions may lapse separately or in combination at such time or
times, in such installments or otherwise, as the Committee may deem appropriate. Without limiting the generality of the foregoing, if
the Award relates to Shares on which dividends are declared during the period that the Award is outstanding, the Award shall not provide
for the payment of such dividend (or a dividend equivalent) to the Participant prior to the time at which such Award, or applicable portion
thereof, becomes nonforfeitable, unless required by applicable law, or otherwise provided in the applicable Award Document.
(c) Any Restricted Shares granted under
the Plan may be evidenced in such manner as the Committee may deem appropriate.
(d) The Committee may determine the methods
by which, and the forms in which payment of the amount owing upon settlement of any RSU Award may be made, including cash, Shares, other
Awards, other property or any combination thereof (having a Fair Market Value on the settlement date equal to the relevant payment).
Section 6. Options. The Committee is authorized
to grant Options to Participants with the following terms and conditions and with such additional terms and conditions, in either case
not inconsistent with the provisions of the Plan, as the Committee shall determine.
(a) The exercise price per Share under
an Option shall be determined by the Committee; provided, however, that, except in the case of Replacement Awards, such
exercise price shall not be less than the Fair Market Value of a Share on the date of grant of such Option.
(b) The term of each Option shall be fixed
by the Committee but shall not exceed 10 years from the date of grant of such Option.
(c) The Committee shall determine the
time or times at which an Option may be exercised in whole or in part.
(d) The Committee shall determine the
methods by which, and the forms in which payment of the exercise price with respect thereto may be made or deemed to have been made, including
cash, Shares, other Awards, other property, net settlement (including cashless exercise) or any combination thereof, having a Fair Market
Value on the exercise date equal to the relevant exercise price.
(e) To the extent an Option is not previously
exercised as to all of the Shares subject thereto, and, if the Fair Market Value of one Share is greater than the exercise price then
in effect, then the Option shall be deemed automatically exercised by a cashless exercise net settlement, immediately before its expiration,
unless the Participant has given instruction as to the contrary.
(f) The Committee shall determine the
conditions, if any, to vesting of Options granted under the Plan, including without limitation any service- or performance-based conditions
to vesting of the Option.
(g) No Option will be eligible for the
payment of dividends or dividend equivalents, to the extent such Option is subject to Section 409A or 457A of the Code.
Section 7. Share Appreciation Rights. The
Committee is authorized to grant SARs to Participants with the following terms and conditions and with such additional terms and conditions,
in either case not inconsistent with the provisions of the Plan, as the Committee shall determine.
(a) SARs may be granted under the Plan
to Participants either alone (“freestanding”) or in addition to other Awards granted under the Plan (“tandem”).
(b) The exercise price per Share under
a SAR shall be determined by the Committee; provided, however, that, except in the case of Replacement Awards, such exercise price
shall not be less than the Fair Market Value of a Share on the date of grant of such SAR (or if granted in connection with an Option,
on the grant date of such Option).
(c) The term of each SAR shall be fixed
by the Committee but shall not exceed 10 years from the date of grant of such SAR.
(d) The Committee shall determine the
time or times at which a SAR may be exercised or settled in whole or in part.
(e) To the extent a SAR is not previously
exercised as to all of the Shares subject thereto, and, if the Fair Market Value of one Share is greater than the exercise price then
in effect, then the SAR shall be deemed automatically exercised immediately before its expiration.
(f) Upon the exercise of a SAR, the Company
shall pay to the Participant an amount equal to the number of Shares subject to the SAR multiplied by the excess, if any, of the Fair
Market Value of one Share on the exercise date over the exercise price of such SAR. The Company shall pay such excess in cash, in Shares
valued at Fair Market Value, or any combination thereof, as determined by the Committee.
(g) No SAR will be eligible for the payment
of dividends or dividend equivalents, to the extent such SAR is subject to Section 409A or 457A of the Code.
Section 8. Performance Awards. The Committee
is authorized to grant Performance Awards to Participants with the following terms and conditions and with such additional terms and conditions,
in either case not inconsistent with the provisions of the Plan, as the Committee shall determine.
(a) Performance Awards may be denominated
as a cash amount, a number of Shares or a combination thereof and are Awards which may be earned upon achievement or
satisfaction of performance conditions specified by the
Committee. In addition, the Committee may specify that any other Award shall constitute a Performance Award by conditioning the
right of a Participant to exercise the Award or have it settled, and the timing thereof, upon achievement or satisfaction of such
performance conditions as may be specified by the Committee. The Committee may use such business criteria and other measures of
performance as it may deem appropriate in establishing any performance conditions. Subject to the terms of the Plan, the performance
goals to be achieved during any Performance Period, the length of any Performance Period, the amount of any Performance Award
granted and the amount of any payment or transfer to be made pursuant to any Performance Award shall be determined by the Committee.
Unless otherwise determined by the Committee, if the Performance Award relates to Shares on which dividends are declared during the
Performance Period, the Performance Award shall not provide for the payment of such dividend (or dividend equivalent) to the
Participant prior to the time at which such Performance Award, or the applicable portion thereof, is earned.
(b) Performance criteria may be measured
on an absolute (e.g., plan or budget) or relative basis, and may be established on a corporate-wide basis, with respect to one
or more business units, divisions, Subsidiaries or business segments, or on an individual basis. Relative performance may be measured
against a group of peer companies, a financial market index or other acceptable objective and quantifiable indices. If the Committee determines
that a change in the business, operations, corporate structure or capital structure of the Company, or the manner in which the Company
conducts its business, or other events or circumstances render the performance objectives unsuitable, the Committee may modify the minimum
acceptable level of achievement, in whole or in part, as the Committee deems appropriate and equitable. Performance objectives may be
adjusted for material items not originally contemplated in establishing the performance target for items resulting from discontinued operations,
extraordinary gains and losses, the effect of changes in accounting standards or principles, acquisitions or divestitures, changes in
tax rules or regulations, capital transactions, restructuring, nonrecurring gains or losses or unusual items. Performance measures may
vary from Performance Award to Performance Award, and from Participant to Participant, and may be established on a stand-alone basis,
in tandem or in the alternative. The Committee shall have the power to impose such other restrictions on Awards subject to this Section
8(b) as it may deem necessary or appropriate to ensure that such Awards satisfy all requirements of any applicable law, stock market or
exchange rules and regulations or accounting or tax rules and regulations.
(c) Settlement of Performance Awards;
Other Terms. Settlement of Performance Awards shall be in cash, Shares, other Awards, other property, net settlement or any combination
thereof, as determined in the discretion of the Committee. Subject to Section 10, Performance Awards will be settled only after the end
of the relevant Performance Period. The Committee may, in its discretion, increase or reduce the amount of a settlement otherwise to be
made in connection with a Performance Award.
Section 9. Other Share-Based Awards. The
Committee is authorized, subject to limitations under applicable law, to grant to Participants such other Awards that may be denominated
or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Shares or factors that may influence
the value of Shares, including convertible or
exchangeable debt securities, other rights convertible or
exchangeable into Shares, acquisition rights for Shares, Awards with value and payment contingent upon performance of the Company or
business units thereof or any other factors designated by the Committee. The Committee shall determine the terms and conditions of
such Awards.
Section 10. Effect of Termination of Service
or a Change in Control on Awards.
(a) The Committee may provide in any Award
Document the circumstances in which, and the extent to which, an Award may be exercised, settled, vested, paid or forfeited in the event
of a Participant’s Termination of Service prior to the vesting, exercise or settlement of such Award or the end of a Performance
Period.
(b) Unless otherwise provided in an Award
Document, in the event of a Change in Control involving a merger, acquisition or other corporate transaction, any Award that (i) is
not assumed, substituted, replaced or continued in connection with such Change in Control; (ii) is substituted or replaced in connection
with such Change in Control, but with an award that does not include substantially the same terms as the substituted or replaced award,
including, without limitation, terms with respect to vesting and acceleration of vesting; or (iii) is assumed, substituted, replaced or
continued in connection with such Change in Control, but with an award providing for rights with respect to securities that are not publicly
traded on an established stock exchange or national market system (provided that this clause (iii) shall not apply in the event of a Change
in Control that occurs at a time when the Company is not Publicly Listed), shall, to the extent permissible under applicable law, vest
and settle in full (with respect to Performance Awards, assuming achievement of performance criteria at target level), and, with respect
to Options and SARs, shall become fully exercisable, in each case as of the effective date of the Change in Control, or, if so determined
by the Committee in its discretion, within a reasonable number of days prior to such effective date.
(c) Unless otherwise provided in an Award
Document or Committee determination pursuant to Section 10(a), (b) or (d) and to the extent permissible under applicable law, in the event
that the Company or a successor or Affiliate terminates a Participant’s employment without Cause, or the Participant terminates
his or her employment for Good Reason, in each case such that the Participant experiences a Termination of Service upon or during the
18-month-period following a Change in Control, notwithstanding any provision of the Plan to the contrary, all of such Participant’s
outstanding Awards shall immediately vest and settle in full (with respect to Performance Awards, assuming achievement of performance
criteria at target level), and , with respect to Options and SARs shall become fully exercisable, in each case as of the date of the Participant’s
Termination of Service.
(d) In the event of a Change in Control,
notwithstanding anything to the contrary in the Plan or the applicable Award Document, the Committee, in its sole discretion, and on such
terms and conditions as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such Change
in Control, may take any one or more of the following actions whenever the Committee determines that such action is appropriate or desirable
in order to prevent the dilution or enlargement of the benefits intended to be made available under the Plan or to facilitate the Change
in Control transaction:
(i) to cancel any outstanding
Award in exchange for a payment in cash, securities or other property or any combination thereof, with a value equal to the value of such
Award based on the per share value of Common Stock received or to be received by other shareholders in the event (and, for the avoidance
of doubt, if as of the date of the Change in Control, the Committee determines that no amount would have been realized upon the exercise
of the Award or other realization of the Participant’s rights, then the Award may be cancelled by the Company without payment of
consideration);
(ii) to require the exercise
of any Option not exercised by the Participant;
(iii) to provide for the
assumption, substitution, replacement or continuation of any Award by the successor or surviving corporation (or a parent or Subsidiary
thereof) with cash, securities, rights or other property to be paid or issued, as the case may be, by the successor or surviving corporation
(or a parent or Subsidiary thereof), and to provide for appropriate adjustments with respect to the number and type of securities (or
other consideration) of the successor or surviving corporation (or a parent or Subsidiary thereof), subject to any replacement awards,
the terms and conditions of the replacement awards (including, without limitation, any applicable performance targets or criteria with
respect thereto) and the grant, exercise or purchase price per share for the replacement awards;
(iv) to make any other adjustments
in the number and type of securities (or other consideration) subject to (a) outstanding Awards and in the terms and conditions of
outstanding Awards (including the grant or exercise price and performance criteria with respect thereto) in order to prevent the dilution
or enlargement of the benefits intended to be made available under the Plan and (b) Awards that may be granted in the future;
(v) to provide that any Award
shall be accelerated and become exercisable, payable and/or fully vested with respect to all Shares covered thereby; and
(vi) to provide that any
Award shall not vest, be exercised or become payable as a result of such event.
(e) By accepting an Award, each Participant
gives a power of attorney to the Company to exercise, sell, assign or otherwise dispose of on behalf of the Participant such Participant's
Awards or of the Shares acquired upon the exercise of Options or settlement of Awards, in order to comply with and give full force and
effect to the provisions of this Section 10, including, without limitation, the sale in a Change of Control transaction.
Section 11. General Provisions Applicable to
Awards.
(a) Awards shall be granted for no cash
consideration or for such minimal cash consideration as may be required by applicable law.
(b) Awards may, in the discretion of the
Committee, be granted either alone or in addition to or in tandem with any other Award or any award granted under any other plan of
the Company. Awards granted in addition to or in tandem with
other Awards, or in addition to or in tandem with awards granted under any other plan of the Company, may be granted either at the
same time as or at a different time from the grant of such other Awards or awards.
(c) Subject to the terms of the Plan and
Section 17, payments or transfers to be made by the Company upon the grant, exercise or settlement of an Award may be made in the form
of cash, Shares, other Awards, other property, net settlement or any combination thereof, as determined by the Committee in its discretion,
and may be made in a single payment or transfer, in installments or on a deferred basis, in each case in accordance with rules and procedures
established by the Committee. Such rules and procedures may include provisions for the payment or crediting of reasonable interest on
installment or deferred payments or the grant or crediting of dividend equivalents in respect of installment or deferred payments.
(d) Except as may be permitted by the
Committee or as specifically provided in an Award Document, (i) no Award
and no right under any Award shall be assignable, alienable, saleable or transferable by a Participant otherwise than by will or pursuant
to Section 11(e) and (ii) during a Participant’s lifetime, each Award,
and each right under any Award, shall be exercisable only by the Participant or, if permissible under applicable law, by the Participant’s
guardian or legal representative. The provisions of this Section 11(d) shall not apply to any Award that has been fully exercised or settled,
as the case may be, and shall not preclude forfeiture of an Award in accordance with the terms thereof.
(e) A Participant may designate a Beneficiary
or change a previous Beneficiary designation at such times prescribed by the Committee by using forms and following procedures approved
or accepted by the Committee for that purpose.
(f) All certificates, if any, for Shares,
and/or other securities delivered under the Plan pursuant to any Award or the exercise or settlement thereof shall be subject to such
stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations and other requirements
of the Securities and Exchange Commission, as applicable, any stock market or exchange upon which such Shares or other securities are
then quoted, traded or listed, and any applicable securities laws, and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
(g) Without limiting the generality of
Section 11(h), the Committee may specify in an Award Document that the Participant’s rights, payments or benefits with respect to
an Award are subject to restrictions with respect to noncompetition, confidentiality and other restrictive covenants, or requirements
to comply with minimum share ownership requirements, as it deems necessary or appropriate in its sole discretion.
(h) The Committee may specify in an Award
Document that the Participant’s rights, payments and benefits with respect to an Award shall be subject to reduction, cancellation,
forfeiture or recoupment upon the occurrence of certain specified events, in addition to any otherwise applicable vesting or performance
conditions of an Award. Such events may include (i) a Termination of Service with Cause (and, in the case of any Cause that is
resulting from an indictment or other non-final determination, the
Committee may provide for such Award to be held in escrow or abeyance until a final resolution of the matters related to such event occurs,
at which time the Award shall either be reduced, cancelled or forfeited (as provided in such Award Document) or remain in effect, depending
on the outcome), (ii) violation of material policies, (iii) voluntary termination of employment by the Participant, (iv) other termination
of the Participant’s employment as a “bad leaver,” (v) breach of noncompetition, confidentiality or other restrictive
covenants that may apply to the Participant, or (vi) other conduct by the Participant that is detrimental to the business or reputation
of the Company and/or its Affiliates; provided, however that, no such reduction, cancelation, forfeiture of recoupment of an Award
for any of the reasons set forth in clauses (ii) through (vi) above, for a Participant who is an executive officer or director of the
Company, shall be effective unless and until the Participant has been given a reasonable opportunity to discuss the basis for termination
with the Chair of the Committee.
(i) Rights, payments and benefits under
any Award shall be subject to repayment to or recoupment (“clawback”) by the Company in accordance with such policies and
procedures as the Committee or Board may adopt from time to time, but only to the extent that (i) such policies or procedures (A) are
necessary to implement applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations or (B) with
respect to an Award, apply in the case of termination of the Participant’s employment for Cause or (ii) the Committee otherwise
determines in its reasonable discretion that such a clawback is necessary to satisfy one or more fiduciary obligations to the Company
of the Committee or the members thereof.
Section 12. Amendments and Termination.
(a) Except to the extent prohibited by
applicable law and unless otherwise expressly provided in an Award Document or in the Plan, the Board may amend, alter, suspend, discontinue
or terminate the Plan or any portion thereof at any time; provided, however, that no such amendment, alteration, suspension, discontinuation
or termination shall be made without (i) shareholder approval, if such approval
is required by applicable law or the rules of the stock market or exchange, if any, on which the Shares are principally quoted or traded
or (ii) the consent of the affected Participant, if such action would materially
adversely affect the rights of such Participant under any outstanding Award, except to the extent any such amendment, alteration, suspension,
discontinuance or termination is made to cause the Plan to comply with applicable law, stock market or exchange rules and regulations
or accounting or tax rules and regulations, or to impose any recoupment provisions on any Awards in accordance with Section 11(i), or
such affected Participant is appropriately compensated by grants of other Awards or cash payments, to the extent that such compensation
is not prohibited by Section 409A or Section 457A of the Code as applicable to Participants subject to income taxation in the United States.
Notwithstanding anything to the contrary in the Plan, the Committee may amend the Plan or any Award Document in such manner as may be
necessary or desirable to enable the Plan or such Award Document to achieve its stated purposes in any jurisdiction in a tax-efficient
manner and in compliance with local laws, rules and regulations to recognize differences in local law, tax policy or custom. The Committee
also may impose conditions on the exercise or vesting of
Awards in order to minimize the Company’s obligation with respect to tax
equalization for Participants on assignments outside their home country.
(b) The Committee may waive any conditions
or rights under, amend any terms of, or amend, alter, suspend, discontinue or terminate any Award theretofore granted, prospectively or
retroactively, without the consent of any relevant Participant or holder or Beneficiary of an Award; provided, however, that, subject
to Section 4(c) and Section 11(c), no such action shall materially adversely affect the rights of any affected Participant or holder or
Beneficiary under any Award theretofore granted under the Plan, except to the extent that (i) any such action is made (A) to cause the
Plan to comply with applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations, (B) to
impose any recoupment provisions on any Awards in accordance with Section 11(i) or (C) made with the consent of the affected Participant;
or (ii) the affected Participant is appropriately compensated by grants of other Awards or cash payments for any such adverse effect,
to the extent that such compensation is not prohibited by Section 409A or Section 457A of the Code as applicable to Participants subject
to income taxation in the United States.
(c) Except as provided in Section 8(b),
the Committee shall be authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition
of events (including the events described in Section 4(c)) affecting the Company, or the financial statements of the Company, or of changes
in applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations, whenever the Committee determines
that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan.
(d) The Committee may correct any defect,
supply any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent it shall deem desirable to
carry the Plan into effect.
Section 13. Option and SAR Repricing. The
Committee may seek to effect any re-pricing of any previously granted “underwater” Option or SAR by: (i) amending or
modifying the terms of the Option or SAR to lower the exercise price; (ii) cancelling the underwater Option or SAR and granting either
(A) replacement Options or SARs having a lower exercise price or (B) Restricted Shares, RSU, Performance Award or Other Share-Based
Award in exchange; or (iii) cancelling or repurchasing the underwater Options or SARs for cash or other securities. An Option or
SAR will be deemed to be “underwater” at any time when the Fair Market Value of the Shares covered by such Award is less than
the exercise price of the Award.
Section 14. Miscellaneous.
(a) No employee, Participant or other
person shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of employees,
Participants or holders or Beneficiaries of Awards under the Plan. The terms and conditions of Awards need not be the same with respect
to each recipient, including as necessary or desirable to recognize differences in local law, tax policy or custom. Any Award granted
under the Plan shall be a one-time Award that does not constitute a promise of future grants. The
Company, in its sole discretion, maintains
the right to make available future grants under the Plan.
(b) No payment pursuant to the Plan shall
be taken into account in determining any benefits under any severance, pension, retirement, savings, profit sharing, group insurance,
welfare or other benefit plan of the Company or any Affiliate, except to the extent otherwise expressly provided in writing in such other
plan or an agreement thereunder.
(c) The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of, or to continue to provide services to, the Company or any
Affiliate. Further, the Company or the applicable Affiliate may at any time dismiss a Participant, free from any liability, or any claim
under the Plan, unless otherwise expressly provided in the Plan or in any Award Document or in any other agreement binding the parties.
The receipt of any Award under the Plan is not intended to confer any rights on the receiving Participant except as set forth in the applicable
Award Document.
(d) Nothing contained in the Plan shall
prevent the Company from adopting or continuing in effect other or additional compensation arrangements, and such arrangements may be
either generally applicable or applicable only in specific cases.
(e) The Company shall be authorized to
withhold from any Award granted or any payment due or transfer made under any Award or under the Plan or from any compensation or other
amount owing to a Participant the amount (in cash, Shares, other Awards, other property, net settlement or any combination thereof) of
applicable withholding taxes, duties or social security for which the Participant is ultimately liable in respect of an Award, its exercise
or settlement or any payment or transfer under such Award or under the Plan and to take such other action (including providing for elective
payment of such amounts in cash or Shares by the Participant, forfeiting outstanding Awards, or selling on behalf of the Participant any
of the Shares to which he or she is entitled under any Award and retain the sale proceeds) as may be necessary in the opinion of
the Company to satisfy all obligations for the payment of such taxes, duties and social security. Each Participant shall be responsible
for the necessary declarations required under applicable tax laws. The Company and its Affiliates shall have the right to notify the tax
authorities of the grant, vesting and settlement of any Award and the exercise of any Option if so required by law.
(f) If any provision of the Plan or any
Award Document is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction, or as to any person or Award, or
would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended
to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan or the Award Document, such provision shall be stricken as to such jurisdiction, person or Award, and
the remainder of the Plan and any such Award Document shall remain in full force and effect.
(g) No Shares shall be issued pursuant
to the Plan in the event the Company determines that: (i) it and the Participant have not taken all actions required to register the Shares
under the Securities Act and any other applicable securities laws, as may be applicable in the event the Shares are Publicly Listed and
there is no exemption from such registration under applicable law; (ii) an applicable listing requirement of any stock exchange on which
the Company is listed has not been satisfied; or (iii) another applicable
provision of law has not been satisfied.
(h) Each Award Document shall provide
that no Shares shall be purchased or sold thereunder unless and until (a) any then applicable requirements of any state or federal laws
and regulatory agencies in any applicable country have been fully complied as required with to the satisfaction of the Company and its
counsel and (b) if required to do so by the Company, the Participant has executed and delivered to the Company a letter of investment
intent in such form and containing such provisions as the Committee may require. The Company shall use reasonable efforts to seek to obtain
from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to grant Awards and to issue
and sell Shares upon exercise of the Awards; provided, however, that this undertaking shall not require the Company to register
under the Securities Act the Plan, any Award or any Shares issued or issuable pursuant to any such Award. If, after reasonable efforts,
the Company is unable to obtain from any such regulatory commission or agency the authority which counsel for the Company deems necessary
for the lawful issuance and sale of Shares under the Plan, the Company shall be relieved from any liability for failure to issue and sell
Shares upon exercise of such Awards unless and until such authority is obtained.
(i) Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and a Participant
or any other person. To the extent that any person acquires a right to receive payments from the Company pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the Company.
(j) No fractional Shares shall be issued
or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash or other securities shall be paid or transferred
in lieu of any fractional Shares, or whether such fractional Shares or any rights thereto shall be canceled, terminated or otherwise eliminated.
(k) The Committee may determine that any
Award must be held in a restricted depository account as designated by the Committee.
Section 15. Effective Date of the Plan. The
Plan is initially effective as of December 1, 2023.
Section 16. Term of the Plan. No Award shall
be granted under the Plan after the earliest to occur of (i) the tenth anniversary of the effectiveness of the Plan (the “Plan
Expiration Date”); provided that to the extent permitted by the listing rules of any stock exchanges on which the Company
is listed, such Plan Expiration Date may be extended indefinitely so long as the maximum number of Shares available for issuance under
the Plan have not been issued, (ii) the maximum number of Shares available for issuance under the Plan have been issued or (iii) the
Board terminates the Plan in accordance with Section 12(a). However, unless otherwise
expressly provided in the Plan or in an applicable Award
Document, any Award theretofore granted may extend beyond such date, and the authority of the Committee to amend, alter, adjust,
suspend, discontinue or terminate any such Award, or to waive any conditions or rights under any such Award, and the authority of
the Board to amend the Plan, shall extend beyond such date.
Section 17. Sections 409A and 457A of the
Code.
(a) With respect to Awards made to Participants
who are subject to taxation in the United States, including under Section 409A and 457A of the Code, the Plan is intended to comply
with the requirements of Section 409A and 457A of the Code, and the provisions of the Plan and any Award Document shall be interpreted
in a manner that satisfies the requirements of Section 409A and 457A of the Code, and the Plan shall be operated accordingly. If
any provision of the Plan or any term or condition of any Award would otherwise frustrate or conflict with this intent, the provision,
term or condition will be interpreted and deemed amended so as to avoid this conflict. If an amount payable under an Award as a result
of the Participant’s Termination of Service (other than due to death) occurring while the Participant is a “specified employee”
under Section 409A of the Code constitutes a deferral of compensation subject to Section 409A of the Code, then payment of such
amount shall not occur until six months and one day after the date of the Participant’s Termination of Service, except as permitted
under Section 409A of the Code. If the Award includes a “series of installment payments” (within the meaning of Section 1.409A-2(b)(2)(iii)
of the Treasury Regulations), the Participant’s right to the series of installment payments shall be treated as a right to a series
of separate payments and not as a right to a single payment, and if the Award includes “dividend equivalents” (within the
meaning of Section 1.409A-3(e) of the Treasury Regulations), the Participant’s right to the dividend equivalents shall be treated
separately from the right to other amounts under the Award. Notwithstanding the foregoing, the tax treatment of the benefits provided
under the Plan or any Award Document is not warranted or guaranteed, and in no event shall the Company be liable for all or any portion
of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A
and 457A of the Code.
(b) Notwithstanding any provision of the
Plan to the contrary or any Award Document, in the event the Committee determines that any Award may be subject to Section 409A or Section
457A of the Code, the Committee may adopt such amendments to the Plan and the applicable Award Document or adopt other policies and procedures
(including amendments, policies and procedures with retroactive effect), or take any other actions, that the Committee determines are
necessary or appropriate to (a) exempt the Award from Section 409A or Section 457A of the Code and/or preserve the intended tax treatment
of the benefits provided with respect to the Award, or (b) comply with the requirements of Section 409A or Section 457A and thereby avoid
the application of any adverse tax consequences under such Sections.
(c) Notwithstanding any provision of the
Plan to the contrary or any Award Document, a termination of employment shall not deemed to have occurred for purposes of any provision
of an Award that is subject to Section 409A providing for payment upon or following a termination of a Participant’s employment
unless such termination is also a “separation from
service” and, for purposes of any such provision of such Award, references
to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
Section 18. Data Protection. The Company
holds and processes personal information provided by the Participant, such as name, date of birth, account information, social security
number, tax number and contact information, and uses the Participant’s personal data within the Company’s legitimate business
purposes and as necessary for all purposes relating to the operation and performance of the Plan. These are:
(i) administering and maintaining Participant
records;
(ii) providing the services described
in the Plan;
(iii) providing information to future
purchasers or merger partners of the Company or any Affiliate, or the business in which the Participant works; and
(iv) responding to public authorities,
court orders and legal investigations, as applicable.
Where required under applicable law, the Company
relies on the legal basis of the operation and performance of the Plan and on legitimate interests.
The Company may share the Participant’s personal
data with (i) Affiliates, (ii) trustees of any employee benefit trust, (iii) registrars, (iv) brokers, (v) third party administrators
of the Plan or (vi) regulators and others, as required by law.
If necessary, the Company may transfer the Participant’s
personal data to any of the parties mentioned above in any country or territory in the world, including in any country or territory that
may not provide the same protection for the information as the Participant’s home country. Any transfer of the Participant’s
personal data from the E.U. or from Switzerland to a third country is subject to appropriate safeguards including, without limitation,
in the form of EU standard contractual clauses or applicable derogations provided for under applicable law.
The Company will keep personal information for
as long as necessary to operate the Plan or as necessary to comply with any legal or regulatory requirements.
The Participant has a right to (i) request access
to and rectification or erasure of the personal data provided, (ii) request the restriction of the processing of his or her personal data,
(iii) object to the processing of his or her personal data, (iv) receive the personal data provided to the Company and transmit such data
to another party, and (v) to lodge a complaint with a supervisory authority.
Section 19. Governing Law. The formation,
existence, construction, performance, validity and all aspects whatsoever of this Plan and of each Award Document and any Award granted
thereunder, including any rights and obligations arising out of or in connection with the same, shall be governed by, and construed in
accordance with, the substantive laws of Switzerland (with the exception of the conflict of law rules). The exclusive place of jurisdiction
for any dispute arising out of or in connection with this Plan or any Award Document and any Award granted thereunder shall be Epalinges,
Switzerland.
Section 20. Definitions. As used in the
Plan, the following terms shall have the meanings set forth below:
(a) “Affiliate” means
(i) any entity that, directly or indirectly, is controlled by the Company,
(ii) any entity in which the Company, directly or indirectly, has a significant
equity interest, in each case as determined by the Committee and (iii) any
other entity which the Committee determines should be treated as an “Affiliate.”
(b) “Award” means any
Option, SAR, Restricted Share, RSU, Performance Award or Other Share-Based Award granted under the Plan.
(c) “Award Document”
means any agreement, contract or other instrument or document, which may be in electronic format, evidencing any Award granted under the
Plan, which may, but need not, be executed or acknowledged by a Participant.
(d) “Beneficiary” means
a person entitled to receive payments or other benefits or exercise rights that are available under the Plan in the event of the Participant’s
death. If no such person is named by a Participant, or if no Beneficiary designated by the Participant is eligible to receive payments
or other benefits or exercise rights that are available under the Plan at the Participant’s death, such Participant’s Beneficiary
shall be such Participant’s estate.
(e) “Board” means the
board of directors of the Company.
(f) “Cause” means,
with respect to any Participant, “cause” as defined in such Participant’s employment agreement with the Company, if
any, or if not so defined, except as otherwise provided in such Participant’s Award Document, such Participant’s:
(i) indictment for any crime
(A) constituting a felony, or (B) that has, or could reasonably be expected to result in, an adverse impact on the performance
of a Participant’s duties to the Company or any of its Subsidiaries, or otherwise has, or could reasonably be expected to result
in, an adverse impact to the business or reputation of the Company or any of its Subsidiaries;
(ii) having been the subject of any
order, judicial or administrative, obtained or issued by any securities law regulator (including the U.S. Securities and Exchange Commission)
or criminal law enforcement authority, for any securities violation involving fraud, including, for example, any such order consented
to by the Participant in which findings of facts or any legal conclusions establishing liability are neither admitted nor denied;
(iii) conduct, in connection
with his or her employment or service, which is not taken in good faith and has, or could reasonably be expected to result in, material
injury to the business or reputation of the Company or any of its Subsidiaries;
(iv) willful violation of
the Company’s code of conduct or other material policies set forth in the manuals or statements of policy of the Company or any
of its Subsidiaries;
(v) willful neglect in the
performance of a Participant’s duties for the Company or any of its Subsidiaries or willful or repeated failure or refusal to perform
such duties; or
(vi) material breach of any
applicable employment agreement or other agreement with the Company or, if applicable, any other reason or event that qualifies as a valid
reason as defined in article 337 of the Swiss Code of Obligations.
The occurrence of any such event described
in clauses (ii) through (vi) that is susceptible to cure or remedy shall not constitute Cause if such Participant cures or remedies such
event within 30 days after the Company provides notice to such Participant.
Any determination by the Company or any
Subsidiary that the Termination of Service of the Participant was made for Cause (or without Cause) for the purposes of outstanding Awards
held by such Participant shall not be determined by, and shall not be prejudicial or effective regarding, any determination of the rights
or obligations of the Company, any Subsidiary or the Participant for any other purpose.
(g) “Change in Control”
means the occurrence of any one or more of the following events:
(i) a direct or indirect change
in ownership or control of the Company effected through one transaction or a series of related transactions within a 12-month period,
whereby any Person (or a group of Persons acting in concert) other than the Company, directly or indirectly acquires or maintains beneficial
ownership of securities of the Company constituting more than 50% of the total combined voting power of the Company’s equity securities
issued and outstanding immediately after such acquisition;
(ii) at any time during a
period of 24 consecutive months, individuals who at the beginning of such period constituted the Board cease for any reason to constitute
a majority of members of the Board; provided, however, that any new member of the Board whose election or nomination for election
was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of such
period or whose election or nomination for election was so approved, shall be considered as though such individual were a member of the
Board at the beginning of the period, but excluding, for this purpose, any such individual whose initial assumption of office occurs as
a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Board;
(iii) the consummation of
a merger, amalgamation or consolidation of the Company or any of its Subsidiaries with any other corporation or entity, other than a
merger,
amalgamation or consolidation which would result in the voting securities of the Company issued and outstanding immediately prior to such
merger, amalgamation or consolidation continuing to represent (either by remaining issued and outstanding or being converted into voting
securities of the surviving entity or, if applicable, the ultimate parent thereof) at least 50% of the combined voting power
and total Fair Market Value of the securities of the Company or such surviving entity or parent issued and outstanding immediately after
such merger, amalgamation or consolidation; or
(iv) the consummation of any
sale, lease, exchange, or other transfer or disposition (including by way of a carve-out or spin-off transaction) to any Person (other
than an Affiliate of the Company), in one transaction or a series of related transactions within a 12-month period, of all or substantially
all of the assets of the Company and its Subsidiaries.
Notwithstanding the foregoing or any provision of
any Award Document to the contrary, for any Award to which Section 17 applies that provides for accelerated distribution on a Change in
Control of amounts that constitute “deferred compensation” (as defined in Section 409A and 457A of the Code), if the
event that constitutes such Change in Control does not also constitute a change in the ownership or effective control of the Company,
or in the ownership of a substantial portion of the Company’s assets (in either case, as defined in Section 409A and 457A of
the Code), such amount shall not be distributed on such Change in Control but instead shall vest as of the date of such Change in Control
and shall be paid on the scheduled payment date specified in the applicable Award Document, except to the extent that earlier distribution
would not result in the Participant who holds such Award incurring any additional tax, penalty, interest or other expense under Section 409A
and 457A of the Code.
(h) “Code” means the
U.S. Internal Revenue Code of 1986, as amended from time to time, and the rules, regulations and guidance thereunder. Any reference to
a provision in the Code shall include any successor provision thereto.
(i) “Committee” means
the Compensation Committee of the Board or such other committee as may be designated by the Board, or, at the Board’s discretion
with respect to any action, references herein to the “Committee” shall refer to the Board.
(j) “Disability” means,
with respect to any Participant, “disability” or the state of being “disabled” as defined in such Participant’s
employment agreement with the Company, if any, or if not so defined, except as otherwise provided in such Participant’s Award Document:
(i) the Participant’s disability for purposes of benefits under any long-term disability plan maintained by the Company or any Affiliate
in which the Participant participates; or (ii) the Participant’s inability, due to physical or mental incapacity, to perform the
essential functions of his or her job, with reasonable accommodation, that endures, or is reasonably expected to endure, for 180 days
in any 365-day period.
(k) “Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended from time to time, and the rules, regulations and guidance thereunder. Any
reference to a provision in the Exchange Act shall include any successor provision thereto.
(l) “Fair Market Value”
means (i) with respect to a Share, the closing price of a Share on the date in question (or, if there is no reported sale on such date,
on the last preceding date on which any reported sale occurred) on the principal stock market or exchange on which the Shares are quoted
or traded, or if Shares are not so quoted or traded, the fair market value of a Share as determined by the Committee, and (ii) with respect to any property other than Shares, the fair market value of such property determined by such methods or procedures
as shall be established from time to time by the Committee.
(m) “Good Reason” means,
with respect to any Participant, “good reason” as defined in such Participant’s employment agreement with the Company,
if any, or if not so defined, except as otherwise provided in such Participant’s Award Document, the occurrence of any of the following,
in each case without the Participant’s written consent:
(i) a
material, adverse change in the Participant’s base salary or aggregate annual bonus opportunity, other than a general reduction
that affects all similarly situated employees in substantially the same proportions; or
(ii) a
material, adverse change in the Participant’s authority, duties, or responsibilities (other than temporarily while the Participant
is physically or mentally incapacitated or as required by applicable law).
The Participant cannot terminate his or her employment
for Good Reason unless he or she has provided written notice to the Company of the existence of the circumstances providing grounds for
termination for Good Reason within 60 days of the initial existence of such grounds and the Company has had at least 30 days from the
date on which such notice is provided to cure such circumstances. If the Participant does not terminate his or her employment for Good
Reason within 90 days after the first occurrence of the applicable grounds, then the Participant will be deemed to have waived his or
her right to terminate for Good Reason with respect to such grounds.
(n) “Non-Employee Director”
means a member of the Board who is not an employee of the Company or an Affiliate.
(o) “Option” means
an option representing the right to acquire Shares from the Company, granted in accordance with the provisions of Section
6.
(p) “Other Share-Based Award”
means an Award granted in accordance with the provisions of Section 9.
(q) “Participant” means
the recipient of an Award granted under the Plan.
(r) “Performance Award”
means an Award granted in accordance with the provisions of Section 8.
(s) “Performance Period”
means the period established by the Committee at the time any Performance Award is granted or at any time thereafter during which any
performance goals specified by the Committee with respect to such Award are measured.
(t) “Person” means
a natural person or a partnership, company, association, cooperative, mutual insurance society, foundation or any other body which operates
externally as an independent unit or organisation.
(u) “Publicly Listed”
means, with respect to a security, that such security is publicly traded on an established stock exchange or national market system; and,
with respect to an entity, that such entity is the issuer of a security that is Publicly Listed.
(v) “Replacement Award”
means an Award granted in assumption of, or in substitution for, an outstanding award previously granted by a company or business acquired
by the Company or with which the Company, directly or indirectly, combines (whether by way of amalgamation, merger, sale and purchase
of shares or other securities or otherwise).
(w) “Restricted Share”
means any Share granted in accordance with the provisions of Section 5.
(x) “RSU” means a contractual
right granted in accordance with the provisions of Section 5 that is denominated in Shares.
Each RSU represents a right to receive the value of one Share. Awards of RSUs may include the right to receive dividend equivalents.
(y) “SAR” means any
right granted in accordance with the provisions of Section 7 to receive upon exercise by a
Participant or settlement the excess of (i) the Fair Market Value of one Share on the date of exercise or settlement over (ii) the
exercise price of the right on the date of grant, or if granted in connection with an Option, on the date of grant of the Option.
(z) “Securities Act”
means the Securities Act of 1933, as amended from time to time, and the rules, regulations and guidance thereunder. Any reference to a
provision in the Securities Act shall include any successor provision thereto.
(aa) “Shares” means
common shares of the Company.
(bb) “Subsidiary” means
any corporation, limited liability company, joint venture or partnership of which the Company (a) directly or indirectly owns more than
fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such entity, (ii) the total combined
equity interests, or (iii) the capital or profit interests, in the case of a partnership; or (b) otherwise has the power to vote, either
directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body.
(cc) “Termination of Service”
means:
(i) in the case of a Participant
who is an employee of the Company or a Subsidiary, cessation of the employment relationship such that the Participant is no longer an
employee of the Company or Subsidiary;
(ii) in the case of a Participant
who is a Non-Employee Director, the date that the Participant ceases to be a member of the Board for any reason; or
(iii) in the case of a Participant
who is a consultant or other advisor, the effective date of the cessation of the performance of services for the Company or any Subsidiary;
provided, however, that in the case of an employee, the transfer
of employment from the Company to a Subsidiary, from a Subsidiary to the Company, from one Subsidiary to another Subsidiary or, unless
the Committee determines otherwise, the cessation of employee status but the continuation of the performance of services for the Company
or a Subsidiary as a member of the Board or a consultant or other advisor shall not be deemed a cessation of service that would constitute
a Termination of Service; and provided further that a Termination of Service will be deemed to occur for a Participant employed
by a Subsidiary when a Subsidiary ceases to be a Subsidiary, unless such Participant’s employment continues with the Company or
another Subsidiary.
Exhibit 99.2
ADC THERAPEUTICS SA
INDUCEMENT PLAN
Section 1. Purpose. The purpose of the ADC
Therapeutics Inducement Plan (the “Plan”) is to motivate and reward new employees of ADC Therapeutics SA (the “Company”)
and its Subsidiaries to perform at the highest level and to further the best interests of the Company and its shareholders. Capitalized
terms not otherwise defined herein are defined in Section 21.
This Plan enables compliance with the inducement
equity grant exception to stockholder approval of equity issuances under New York Stock Exchange Listed Company Manual 303A.08 by providing
equity-based compensation as a material inducement to a person or persons being hired by the Company or any of its Subsidiaries, or being
rehired following a bona fide period of non-employment.
Section 2. Eligibility.
(a) Any employee who is eligible to receive
an employment inducement grant in accordance with New York Stock Exchange Listed Company Manual 303A.08 shall be eligible to be selected
to receive an Award under the Plan.
Section 3. Administration.
(a) The Plan shall be administered by
the Committee. The Board may designate one or more directors of the Company as a subcommittee who may act for the Committee if necessary
to satisfy the requirements of this Section. The Committee may issue rules and regulations for administration of the Plan.
(b) Subject to the terms of the Plan and
applicable law, the Committee shall have full power and authority to:
(i) designate Participants;
(ii) determine the type or
types of Awards to be granted to each Participant under the Plan;
(iii) determine the number
of Shares to be covered by (or with respect to which payments, rights or other matters are to be calculated in connection with) Awards;
(iv) determine the terms
and conditions of any Award;
(v) determine whether, to
what extent and under what circumstances Awards may be settled or exercised in cash, Shares, other Awards, other property, net settlement
(including cashless exercise) or any combination thereof, or canceled, forfeited or suspended, and the method or methods by which Awards
may be settled, exercised, canceled, forfeited or suspended;
(vi) determine whether, to
what extent and under what circumstances cash, Shares, other Awards, other property and other amounts payable with respect to an Award
under the Plan shall be deferred either automatically or at the election of the holder thereof or of the Committee;
(vii) interpret and administer
the Plan and any instrument or agreement relating to, or Award made under, the Plan;
(viii) establish, amend,
suspend or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the
Plan; and
(ix) make any other determination
and take any other action that the Committee deems necessary or desirable for the administration of the Plan.
(c) All decisions of the Committee shall
be final, conclusive and binding upon all parties, including the Company, its shareholders and Participants and any Beneficiaries thereof.
Section 4. Shares Available for Awards.
(a) Subject to adjustment as provided
in Section 4(c), the maximum number of Shares available for issuance under the Plan shall not
exceed 1,000,000 Shares. Share subject to an Award under the Plan shall be for an Award granted as an inducement grant pursuant to New
York Stock Exchange Listed Company Manual 303A.08 or under the rules of an exchange on which the Shares are traded, to the extent the
Shares are not traded on the New York Stock Exchange.
(b) Any Shares subject to an Award that
expires, is canceled, forfeited or otherwise terminates without the delivery of such Shares, including any Shares subject to such Award
to the extent that such Award is settled without the issuance of Shares, shall again be, or shall become, available for issuance under
the Plan. Any Shares surrendered or withheld in payment of any grant, acquisition or exercise price of such Award or taxes, duties or
social security related to such Award shall become available for issuance under the Plan.
(c) In the event that, as a result of
any dividend (other than ordinary cash dividends) or other distribution (whether in the form of cash, Shares or other securities, but
other than ordinary cash distributions made in lieu of ordinary cash dividends), recapitalization, share split (share subdivision), reverse
share split (share consolidation), reorganization, merger, amalgamation, consolidation, split-up, spin-off, combination, repurchase or
exchange of Shares or other securities of the Company, issuance of warrants or other rights to acquire Shares or other securities of the
Company, or other similar corporate transaction or event affecting the Shares (but not, for avoidance of doubt, a mere issuance or repurchase
of Shares or other securities in exchange for value, including, without limitation, issuance of shares as compensation for services),
or of changes in applicable laws, regulations or accounting principles, an adjustment is necessary in order to prevent dilution or enlargement
of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall,
subject to Section 17, adjust equitably any or all of:
(i) the number and type of
Shares (or other securities) which thereafter may be made the subject of Awards;
(ii) the number and type
of Shares (or other securities) subject to outstanding Awards;
(iii) the grant, acquisition,
exercise price with respect to any Award or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding
Award; and
(iv) the terms and conditions
of any outstanding Awards, including the performance criteria of any Performance Awards;
provided, however, that the number of Shares subject to any
Award denominated in Shares shall always be a whole number.
(d) Any Shares delivered pursuant to an
Award may consist, in whole or in part, of Shares issued out of the Company's capital range, or Shares acquired by the Company and/or
held as treasury shares. In its sole discretion, the Company or any of its Subsidiaries or any person appointed by any of them may, in
its own name or in the name of a Participant and on behalf of a Participant, subscribe to Shares, pay in the issue price and do any other
action to create the Shares or direct the Participant to do so. Any Shares delivered pursuant to an Award shall be issued as fully paid
shares, and the exercise price and/or subscription price per Share pursuant to any Award, if applicable, shall always be at least equal
to or greater than the par value per Share. A Participant shall not have any rights as a shareholder of the Company (including as to voting
and dividends) until Shares are actually settled and delivered to the Participant and upon entry of the Participant into the share register
of the Company as shareholder of such Shares with voting rights.
Section 5. Restricted Shares and RSUs.
The Committee is authorized to grant Awards of Restricted Shares and RSUs to Participants with the following terms and conditions and
with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine.
(a) The applicable Award Document shall
specify the vesting schedule and, with respect to RSUs, the delivery schedule (which may include deferred delivery later than the vesting
date) and whether the Award of Restricted Shares or RSUs is entitled to dividends or dividend equivalents, voting rights or any other
rights.
(b) Restricted Shares and RSUs shall be
subject to such restrictions as the Committee may impose (including any limitation on the right to vote Restricted Shares or the right
to receive any dividend, dividend equivalent or other right), which restrictions may lapse separately or in combination at such time or
times, in such installments or otherwise, as the
Committee may deem appropriate. Without limiting the generality of
the foregoing, if the Award relates to Shares on which dividends are declared during the period that the Award is outstanding, the Award
shall not provide for the payment of such dividend (or a dividend equivalent) to the Participant prior to the time at which such Award,
or applicable portion thereof, becomes nonforfeitable, unless required by applicable law, or otherwise provided in the applicable Award
Document.
(c) Any Restricted Shares granted under
the Plan may be evidenced in such manner as the Committee may deem appropriate.
(d) The Committee may determine the methods
by which, and the forms in which payment of the amount owing upon settlement of any RSU Award may be made, including cash, Shares, other
Awards, other property or any combination thereof (having a Fair Market Value on the settlement date equal to the relevant payment).
Section 6. Options. The Committee is authorized
to grant Options to Participants with the following terms and conditions and with such additional terms and conditions, in either case
not inconsistent with the provisions of the Plan, as the Committee shall determine.
(a) The exercise price per Share under
an Option shall be determined by the Committee; provided, however, that, except in the case of Replacement Awards, such
exercise price shall not be less than the Fair Market Value of a Share on the date of grant of such Option.
(b) The term of each Option shall be fixed
by the Committee but shall not exceed 10 years from the date of grant of such Option.
(c) The Committee shall determine the
time or times at which an Option may be exercised in whole or in part.
(d) The Committee shall determine the
methods by which, and the forms in which payment of the exercise price with respect thereto may be made or deemed to have been made, including
cash, Shares, other Awards, other property, net settlement (including cashless exercise) or any combination thereof, having a Fair Market
Value on the exercise date equal to the relevant exercise price.
(e) To the extent an Option is not previously
exercised as to all of the Shares subject thereto, and, if the Fair Market Value of one Share is greater than the exercise price then
in effect, then the Option shall be deemed automatically exercised by a cashless exercise net settlement, immediately before its expiration,
unless the Participant has given instruction as to the contrary.
(f) The Committee shall determine the
conditions, if any, to vesting of Options granted under the Plan, including without limitation any service- or performance-based conditions
to vesting of the Option.
(g) No Option will be eligible for the
payment of dividends or dividend equivalents, to the extent such Option is subject to Section 409A or 457A of the Code.
Section 7. Share Appreciation Rights. The
Committee is authorized to grant SARs to Participants with the following terms and conditions and with such additional terms and conditions,
in either case not inconsistent with the provisions of the Plan, as the Committee shall determine.
(a) SARs may be granted under the Plan
to Participants either alone (“freestanding”) or in addition to other Awards granted under the Plan (“tandem”).
(b) The exercise price per Share under
a SAR shall be determined by the Committee; provided, however, that, except in the case of Replacement Awards, such exercise price
shall not be less than the Fair Market Value of a Share on the date of grant of such SAR (or if granted in connection with an Option,
on the grant date of such Option).
(c) The term of each SAR shall be fixed
by the Committee but shall not exceed 10 years from the date of grant of such SAR.
(d) The Committee shall determine the
time or times at which a SAR may be exercised or settled in whole or in part.
(e) To the extent a SAR is not previously
exercised as to all of the Shares subject thereto, and, if the Fair Market Value of one Share is greater than the exercise price then
in effect, then the SAR shall be deemed automatically exercised immediately before its expiration.
(f) Upon the exercise of a SAR, the Company
shall pay to the Participant an amount equal to the number of Shares subject to the SAR multiplied by the excess, if any, of the Fair
Market Value of one Share on the exercise date over the exercise price of such SAR. The Company shall pay such excess in cash, in Shares
valued at Fair Market Value, or any combination thereof, as determined by the Committee.
(g) No SAR will be eligible for the payment
of dividends or dividend equivalents, to the extent such SAR is subject to Section 409A or 457A of the Code.
Section 8. Performance Awards. The Committee
is authorized to grant Performance Awards to Participants with the following terms and conditions and with such additional terms and conditions,
in either case not inconsistent with the provisions of the Plan, as the Committee shall determine.
(a) Performance Awards may be denominated
as a cash amount, a number of Shares or a combination thereof and are Awards which may be earned upon achievement or satisfaction of performance
conditions specified by the Committee. In addition, the Committee may specify that any other Award shall constitute a Performance Award
by conditioning the right of a Participant to exercise the Award or have it settled, and the timing thereof, upon
achievement or satisfaction of such performance conditions as may be
specified by the Committee. The Committee may use such business criteria and other measures of performance as it may deem appropriate
in establishing any performance conditions. Subject to the terms of the Plan, the performance goals to be achieved during any Performance
Period, the length of any Performance Period, the amount of any Performance Award granted and the amount of any payment or transfer to
be made pursuant to any Performance Award shall be determined by the Committee. Unless otherwise determined by the Committee, if the Performance
Award relates to Shares on which dividends are declared during the Performance Period, the Performance Award shall not provide for the
payment of such dividend (or dividend equivalent) to the Participant prior to the time at which such Performance Award, or the applicable
portion thereof, is earned.
(b) Performance criteria may be measured
on an absolute (e.g., plan or budget) or relative basis, and may be established on a corporate-wide basis, with respect to one
or more business units, divisions, Subsidiaries or business segments, or on an individual basis. Relative performance may be measured
against a group of peer companies, a financial market index or other acceptable objective and quantifiable indices. If the Committee determines
that a change in the business, operations, corporate structure or capital structure of the Company, or the manner in which the Company
conducts its business, or other events or circumstances render the performance objectives unsuitable, the Committee may modify the minimum
acceptable level of achievement, in whole or in part, as the Committee deems appropriate and equitable. Performance objectives may be
adjusted for material items not originally contemplated in establishing the performance target for items resulting from discontinued operations,
extraordinary gains and losses, the effect of changes in accounting standards or principles, acquisitions or divestitures, changes in
tax rules or regulations, capital transactions, restructuring, nonrecurring gains or losses or unusual items. Performance measures may
vary from Performance Award to Performance Award, and from Participant to Participant, and may be established on a stand-alone basis,
in tandem or in the alternative. The Committee shall have the power to impose such other restrictions on Awards subject to this Section
8(b) as it may deem necessary or appropriate to ensure that such Awards satisfy all requirements of any applicable law, stock market or
exchange rules and regulations or accounting or tax rules and regulations.
(c) Settlement of Performance Awards;
Other Terms. Settlement of Performance Awards shall be in cash, Shares, other Awards, other property, net settlement or any combination
thereof, as determined in the discretion of the Committee. Subject to Section 10, Performance Awards will be settled only after the end
of the relevant Performance Period. The Committee may, in its discretion, increase or reduce the amount of a settlement otherwise to be
made in connection with a Performance Award.
Section 9. Other Share-Based Awards. The
Committee is authorized, subject to limitations under applicable law, to grant to Participants such other Awards that may be denominated
or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Shares or factors that may influence
the value of Shares, including convertible or exchangeable debt securities, other rights convertible or exchangeable into Shares, acquisition
rights for Shares, Awards with value and payment contingent upon performance of the Company
or business units thereof or any other factors designated by the Committee.
The Committee shall determine the terms and conditions of such Awards.
Section 10. Effect of Termination of Service
or a Change in Control on Awards.
(a) The Committee may provide in any Award
Document the circumstances in which, and the extent to which, an Award may be exercised, settled, vested, paid or forfeited in the event
of a Participant’s Termination of Service prior to the vesting, exercise or settlement of such Award or the end of a Performance
Period.
(b) Unless otherwise provided in an Award
Document, in the event of a Change in Control involving a merger, acquisition or other corporate transaction, any Award that (i) is
not assumed, substituted, replaced or continued in connection with such Change in Control; (ii) is substituted or replaced in connection
with such Change in Control, but with an award that does not include substantially the same terms as the substituted or replaced award,
including, without limitation, terms with respect to vesting and acceleration of vesting; or (iii) is assumed, substituted, replaced or
continued in connection with such Change in Control, but with an award providing for rights with respect to securities that are not publicly
traded on an established stock exchange or national market system (provided that this clause (iii) shall not apply in the event of a Change
in Control that occurs at a time when the Company is not Publicly Listed), shall, to the extent permissible under applicable law, vest
and settle in full (with respect to Performance Awards, assuming achievement of performance criteria at target level), and, with respect
to Options and SARs, shall become fully exercisable, in each case as of the effective date of the Change in Control, or, if so determined
by the Committee in its discretion, within a reasonable number of days prior to such effective date.
(c) Unless otherwise provided in an Award
Document or Committee determination pursuant to Section 10(a), (b) or (d) and to the extent permissible under applicable law, in the event
that the Company or a successor or Affiliate terminates a Participant’s employment without Cause, or the Participant terminates
his or her employment for Good Reason, in each case such that the Participant experiences a Termination of Service upon or during the
18-month-period following a Change in Control, notwithstanding any provision of the Plan to the contrary, all of such Participant’s
outstanding Awards shall immediately vest and settle in full (with respect to Performance Awards, assuming achievement of performance
criteria at target level), and, with respect to Options and SARs shall become fully exercisable, in each case as of the date of the Participant’s
Termination of Service.
(d) In the event of a Change in Control,
notwithstanding anything to the contrary in the Plan or the applicable Award Document, the Committee, in its sole discretion, and on such
terms and conditions as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such Change
in Control, may take any one or more of the following actions whenever the Committee determines that such action is appropriate or desirable
in order to prevent the dilution or enlargement of the benefits intended to be made available under the Plan or to facilitate the Change
in Control transaction:
(i) to cancel any outstanding
Award in exchange for a payment in cash, securities or other property or any combination thereof, with a value equal to the value of such
Award based on the per share value of Common Stock received or to be received by other shareholders in the event (and, for the avoidance
of doubt, if as of the date of the Change in Control, the Committee determines that no amount would have been realized upon the exercise
of the Award or other realization of the Participant’s rights, then the Award may be cancelled by the Company without payment of
consideration);
(ii) to require the exercise
of any Option not exercised by the Participant;
(iii) to provide for the
assumption, substitution, replacement or continuation of any Award by the successor or surviving corporation (or a parent or Subsidiary
thereof) with cash, securities, rights or other property to be paid or issued, as the case may be, by the successor or surviving corporation
(or a parent or Subsidiary thereof), and to provide for appropriate adjustments with respect to the number and type of securities (or
other consideration) of the successor or surviving corporation (or a parent or Subsidiary thereof), subject to any replacement awards,
the terms and conditions of the replacement awards (including, without limitation, any applicable performance targets or criteria with
respect thereto) and the grant, exercise or purchase price per share for the replacement awards;
(iv) to make any other adjustments
in the number and type of securities (or other consideration) subject to (a) outstanding Awards and in the terms and conditions of
outstanding Awards (including the grant or exercise price and performance criteria with respect thereto) in order to prevent the dilution
or enlargement of the benefits intended to be made available under the Plan and (b) Awards that may be granted in the future;
(v) to provide that any Award
shall be accelerated and become exercisable, payable and/or fully vested with respect to all Shares covered thereby; and
(vi) to provide that any
Award shall not vest, be exercised or become payable as a result of such event.
(e) By accepting an Award, each Participant
gives a power of attorney to the Company to exercise, sell, assign or otherwise dispose of on behalf of the Participant such Participant's
Awards or of the Shares acquired upon the exercise of Options or settlement of Awards, in order to comply with and give full force and
effect to the provisions of this Section 10, including, without limitation, the sale in a Change of Control transaction.
Section 11. General Provisions Applicable to
Awards.
(a) Awards shall be granted for no cash
consideration or for such minimal cash consideration as may be required by applicable law.
(b) Awards may, in the discretion of the
Committee, be granted either alone or in addition to or in tandem with any other Award or any award granted under any other plan of
the Company. Awards granted in addition to or in tandem with other
Awards, or in addition to or in tandem with awards granted under any other plan of the Company, may be granted either at the same time
as or at a different time from the grant of such other Awards or awards.
(c) Subject to the terms of the Plan and
Section 17, payments or transfers to be made by the Company upon the grant, exercise or settlement of an Award may be made in the form
of cash, Shares, other Awards, other property, net settlement or any combination thereof, as determined by the Committee in its discretion,
and may be made in a single payment or transfer, in installments or on a deferred basis, in each case in accordance with rules and procedures
established by the Committee. Such rules and procedures may include provisions for the payment or crediting of reasonable interest on
installment or deferred payments or the grant or crediting of dividend equivalents in respect of installment or deferred payments.
(d) Except as may be permitted by the
Committee or as specifically provided in an Award Document, (i) no Award and no right under any Award shall be assignable,
alienable, saleable or transferable by a Participant otherwise than by will or pursuant to Section 11(e) and (ii) during a Participant’s
lifetime, each Award, and each right under any Award, shall be exercisable only by the Participant or, if permissible under applicable
law, by the Participant’s guardian or legal representative. The provisions of this Section 11(d) shall not apply to any Award that
has been fully exercised or settled, as the case may be, and shall not preclude forfeiture of an Award in accordance with the terms thereof.
(e) A Participant may designate a Beneficiary
or change a previous Beneficiary designation at such times prescribed by the Committee by using forms and following procedures approved
or accepted by the Committee for that purpose.
(f) All certificates, if any, for Shares,
and/or other securities delivered under the Plan pursuant to any Award or the exercise or settlement thereof shall be subject to such
stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations and other requirements
of the Securities and Exchange Commission, as applicable, any stock market or exchange upon which such Shares or other securities are
then quoted, traded or listed, and any applicable securities laws, and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
(g) Without limiting the generality of
Section 11(h), the Committee may specify in an Award Document that the Participant’s rights, payments or benefits with respect to
an Award are subject to restrictions with respect to noncompetition, confidentiality and other restrictive covenants, or requirements
to comply with minimum share ownership requirements, as it deems necessary or appropriate in its sole discretion.
(h) The Committee may specify in an Award
Document that the Participant’s rights, payments and benefits with respect to an Award shall be subject to reduction, cancellation,
forfeiture or recoupment upon the occurrence of certain specified events, in addition to any otherwise applicable vesting or performance
conditions of an Award. Such events may include (i) a Termination of Service with Cause (and, in the case of any Cause that is
resulting from an indictment or other non-final determination, the
Committee may provide for such Award to be held in escrow or abeyance until a final resolution of the matters related to such event occurs,
at which time the Award shall either be reduced, cancelled or forfeited (as provided in such Award Document) or remain in effect, depending
on the outcome), (ii) violation of material policies, (iii) voluntary termination of employment by the Participant, (iv) other termination
of the Participant’s employment as a “bad leaver,” (v) breach of noncompetition, confidentiality or other restrictive
covenants that may apply to the Participant, or (vi) other conduct by the Participant that is detrimental to the business or reputation
of the Company and/or its Affiliates; provided, however that, no such reduction, cancelation, forfeiture of recoupment of an Award
for any of the reasons set forth in clauses (ii) through (vi) above, for a Participant who is an executive officer of the Company, shall
be effective unless and until the Participant has been given a reasonable opportunity to discuss the basis for termination with the Chair
of the Committee.
(i) Rights, payments and benefits under
any Award shall be subject to repayment to or recoupment (“clawback”) by the Company in accordance with such policies and
procedures as the Committee or Board may adopt from time to time, but only to the extent that (i) such policies or procedures (A) are
necessary to implement applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations or (B) with
respect to an Award, apply in the case of termination of the Participant’s employment for Cause or (ii) the Committee otherwise
determines in its reasonable discretion that such a clawback is necessary to satisfy one or more fiduciary obligations to the Company
of the Committee or the members thereof.
Section 12. Amendments and Termination.
(a) Except to the extent prohibited by
applicable law and unless otherwise expressly provided in an Award Document or in the Plan, the Board may amend, alter, suspend, discontinue
or terminate the Plan or any portion thereof at any time; provided, however, that no such amendment, alteration, suspension, discontinuation
or termination shall be made without (i) shareholder approval, if such approval is required by applicable law or the rules of the
stock market or exchange, if any, on which the Shares are principally quoted or traded or (ii) the consent of the affected Participant,
if such action would materially adversely affect the rights of such Participant under any outstanding Award, except to the extent any
such amendment, alteration, suspension, discontinuance or termination is made to cause the Plan to comply with applicable law, stock market
or exchange rules and regulations or accounting or tax rules and regulations, or to impose any recoupment provisions on any Awards in
accordance with Section 11(i), or such affected Participant is appropriately compensated by grants of other Awards or cash payments, to
the extent that such compensation is not prohibited by Section 409A or Section 457A of the Code as applicable to Participants subject
to income taxation in the United States. Notwithstanding anything to the contrary in the Plan, the Committee may amend the Plan or any
Award Document in such manner as may be necessary or desirable to enable the Plan or such Award Document to achieve its stated purposes
in any jurisdiction in a tax-efficient manner and in compliance with local laws, rules and regulations to recognize differences in local
law, tax policy or custom. The Committee also may impose conditions on the exercise or vesting of
Awards in order to minimize the Company’s obligation with respect
to tax equalization for Participants on assignments outside their home country.
(b) The Committee may waive any conditions
or rights under, amend any terms of, or amend, alter, suspend, discontinue or terminate any Award theretofore granted, prospectively or
retroactively, without the consent of any relevant Participant or holder or Beneficiary of an Award; provided, however, that, subject
to Section 4(c) and Section 11(c), no such action shall materially adversely affect the rights of any affected Participant or holder or
Beneficiary under any Award theretofore granted under the Plan, except to the extent that (i) any such action is made (A) to cause the
Plan to comply with applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations, (B) to
impose any recoupment provisions on any Awards in accordance with Section 11(i) or (C) made with the consent of the affected Participant;
or (ii) the affected Participant is appropriately compensated by grants of other Awards or cash payments for any such adverse effect,
to the extent that such compensation is not prohibited by Section 409A or Section 457A of the Code as applicable to Participants subject
to income taxation in the United States.
(c) Except as provided in Section 8(b),
the Committee shall be authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition
of events (including the events described in Section 4(c)) affecting the Company, or the financial statements of the Company, or of changes
in applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations, whenever the Committee determines
that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be
made available under the Plan.
(d) The Committee may correct any defect,
supply any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent it shall deem desirable to
carry the Plan into effect.
Section 13. Option and SAR Repricing. The
Committee may seek to effect any re-pricing of any previously granted “underwater” Option or SAR by: (i) amending or
modifying the terms of the Option or SAR to lower the exercise price; (ii) cancelling the underwater Option or SAR and granting either
(A) replacement Options or SARs having a lower exercise price or (B) Restricted Shares, RSU, Performance Award or Other Share-Based
Award in exchange; or (iii) cancelling or repurchasing the underwater Options or SARs for cash or other securities. An Option or
SAR will be deemed to be “underwater” at any time when the Fair Market Value of the Shares covered by such Award is less than
the exercise price of the Award.
Section 14. Miscellaneous.
(a) No employee, Participant or other
person shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of employees,
Participants or holders or Beneficiaries of Awards under the Plan. The terms and conditions of Awards need not be the same with respect
to each recipient, including as necessary or desirable to recognize differences in local law, tax policy or custom. Any Award granted
under the Plan shall be a one-time Award that does not constitute a promise of future grants. The
Company, in its sole discretion, maintains the right to make available
future grants under the Plan.
(b) No payment pursuant to the Plan shall
be taken into account in determining any benefits under any severance, pension, retirement, savings, profit sharing, group insurance,
welfare or other benefit plan of the Company or any Affiliate, except to the extent otherwise expressly provided in writing in such other
plan or an agreement thereunder.
(c) The grant of an Award shall not be
construed as giving a Participant the right to be retained in the employ of, or to continue to provide services to, the Company or any
Affiliate. Further, the Company or the applicable Affiliate may at any time dismiss a Participant, free from any liability, or any claim
under the Plan, unless otherwise expressly provided in the Plan or in any Award Document or in any other agreement binding the parties.
The receipt of any Award under the Plan is not intended to confer any rights on the receiving Participant except as set forth in the applicable
Award Document.
(d) Nothing contained in the Plan shall
prevent the Company from adopting or continuing in effect other or additional compensation arrangements, and such arrangements may be
either generally applicable or applicable only in specific cases.
(e) The Company shall be authorized to
withhold from any Award granted or any payment due or transfer made under any Award or under the Plan or from any compensation or other
amount owing to a Participant the amount (in cash, Shares, other Awards, other property, net settlement or any combination thereof) of
applicable withholding taxes, duties or social security for which the Participant is ultimately liable in respect of an Award, its exercise
or settlement or any payment or transfer under such Award or under the Plan and to take such other action (including providing for elective
payment of such amounts in cash or Shares by the Participant, forfeiting outstanding Awards, or selling on behalf of the Participant any
of the Shares to which he or she is entitled under any Award and retain the sale proceeds) as may be necessary in the opinion of
the Company to satisfy all obligations for the payment of such taxes, duties and social security. Each Participant shall be responsible
for the necessary declarations required under applicable tax laws. The Company and its Affiliates shall have the right to notify the tax
authorities of the grant, vesting and settlement of any Award and the exercise of any Option if so required by law.
(f) If any provision of the Plan or any
Award Document is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction, or as to any person or Award, or
would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended
to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan or the Award Document, such provision shall be stricken as to such jurisdiction, person or Award, and
the remainder of the Plan and any such Award Document shall remain in full force and effect.
(g) No Shares shall be issued pursuant
to the Plan in the event the Company determines that: (i) it and the Participant have not taken all actions required to register the Shares
under the Securities Act and any other applicable securities laws,
as may be applicable in the event the Shares are Publicly Listed and there is no exemption from such registration under applicable law;
(ii) an applicable listing requirement of any stock exchange on which the Company is listed has not been satisfied; or (iii) another applicable
provision of law has not been satisfied.
(h) Each Award Document shall provide
that no Shares shall be purchased or sold thereunder unless and until (a) any then applicable requirements of any state or federal laws
and regulatory agencies in any applicable country have been fully complied as required with to the satisfaction of the Company and its
counsel and (b) if required to do so by the Company, the Participant has executed and delivered to the Company a letter of investment
intent in such form and containing such provisions as the Committee may require. The Company shall use reasonable efforts to seek to obtain
from each regulatory commission or agency having jurisdiction over the Plan such authority as may be required to grant Awards and to issue
and sell Shares upon exercise of the Awards; provided, however, that this undertaking shall not require the Company to register
under the Securities Act the Plan, any Award or any Shares issued or issuable pursuant to any such Award. If, after reasonable efforts,
the Company is unable to obtain from any such regulatory commission or agency the authority which counsel for the Company deems necessary
for the lawful issuance and sale of Shares under the Plan, the Company shall be relieved from any liability for failure to issue and sell
Shares upon exercise of such Awards unless and until such authority is obtained.
(i) Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company and a Participant
or any other person. To the extent that any person acquires a right to receive payments from the Company pursuant to an Award, such right
shall be no greater than the right of any unsecured general creditor of the Company.
(j) No fractional Shares shall be issued
or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash or other securities shall be paid or transferred
in lieu of any fractional Shares, or whether such fractional Shares or any rights thereto shall be canceled, terminated or otherwise eliminated.
(k) The Committee may determine that any
Award must be held in a restricted depository account as designated by the Committee.
Section 15. Effective Date of the Plan. The
Plan is initially effective as of December 1, 2023.
Section 16. Term of the Plan. No Award shall
be granted under the Plan after the earliest to occur of (i) the tenth anniversary of the effectiveness of the Plan (the “Plan
Expiration Date”); provided that to the extent permitted by the listing rules of any stock exchanges on which the Company
is listed, such Plan Expiration Date may be extended indefinitely so long as the maximum number of Shares available for issuance under
the Plan have not been issued, (ii) the maximum number of Shares available for issuance under the Plan have been issued or (iii) the
Board terminates the Plan in accordance with Section 12(a). However, unless otherwise
expressly provided in the Plan or in an applicable Award Document,
any Award theretofore granted may extend beyond such date, and the authority of the Committee to amend, alter, adjust, suspend, discontinue
or terminate any such Award, or to waive any conditions or rights under any such Award, and the authority of the Board to amend the Plan,
shall extend beyond such date.
Section 17. Sections 409A and 457A of the
Code.
(a) With respect to Awards made to Participants
who are subject to taxation in the United States, including under Section 409A and 457A of the Code, the Plan is intended to comply
with the requirements of Section 409A and 457A of the Code, and the provisions of the Plan and any Award Document shall be interpreted
in a manner that satisfies the requirements of Section 409A and 457A of the Code, and the Plan shall be operated accordingly. If
any provision of the Plan or any term or condition of any Award would otherwise frustrate or conflict with this intent, the provision,
term or condition will be interpreted and deemed amended so as to avoid this conflict. If an amount payable under an Award as a result
of the Participant’s Termination of Service (other than due to death) occurring while the Participant is a “specified employee”
under Section 409A of the Code constitutes a deferral of compensation subject to Section 409A of the Code, then payment of such
amount shall not occur until six months and one day after the date of the Participant’s Termination of Service, except as permitted
under Section 409A of the Code. If the Award includes a “series of installment payments” (within the meaning of Section 1.409A-2(b)(2)(iii)
of the Treasury Regulations), the Participant’s right to the series of installment payments shall be treated as a right to a series
of separate payments and not as a right to a single payment, and if the Award includes “dividend equivalents” (within the
meaning of Section 1.409A-3(e) of the Treasury Regulations), the Participant’s right to the dividend equivalents shall be treated
separately from the right to other amounts under the Award. Notwithstanding the foregoing, the tax treatment of the benefits provided
under the Plan or any Award Document is not warranted or guaranteed, and in no event shall the Company be liable for all or any portion
of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A
and 457A of the Code.
(b) Notwithstanding any provision of the
Plan to the contrary or any Award Document, in the event the Committee determines that any Award may be subject to Section 409A or Section
457A of the Code, the Committee may adopt such amendments to the Plan and the applicable Award Document or adopt other policies and procedures
(including amendments, policies and procedures with retroactive effect), or take any other actions, that the Committee determines are
necessary or appropriate to (a) exempt the Award from Section 409A or Section 457A of the Code and/or preserve the intended tax treatment
of the benefits provided with respect to the Award, or (b) comply with the requirements of Section 409A or Section 457A and thereby avoid
the application of any adverse tax consequences under such Sections.
(c) Notwithstanding any provision of the
Plan to the contrary or any Award Document, a termination of employment shall not deemed to have occurred for purposes of any provision
of an Award that is subject to Section 409A providing for payment upon or following a termination of a Participant’s employment
unless such termination is also a “separation from
service” and, for purposes of any such provision of such Award,
references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”
Section 18. Data Protection. The Company
holds and processes personal information provided by the Participant, such as name, date of birth, account information, social security
number, tax number and contact information, and uses the Participant’s personal data within the Company’s legitimate business
purposes and as necessary for all purposes relating to the operation and performance of the Plan. These are:
(i) administering and maintaining Participant
records;
(ii) providing the services described
in the Plan;
(iii) providing information to future
purchasers or merger partners of the Company or any Affiliate, or the business in which the Participant works; and
(iv) responding to public authorities,
court orders and legal investigations, as applicable.
Where required under applicable law, the Company
relies on the legal basis of the operation and performance of the Plan and on legitimate interests.
The Company may share the Participant’s personal
data with (i) Affiliates, (ii) trustees of any employee benefit trust, (iii) registrars, (iv) brokers, (v) third party administrators
of the Plan or (vi) regulators and others, as required by law.
If necessary, the Company may transfer the Participant’s
personal data to any of the parties mentioned above in any country or territory in the world, including in any country or territory that
may not provide the same protection for the information as the Participant’s home country. Any transfer of the Participant’s
personal data from the E.U. or from Switzerland to a third country is subject to appropriate safeguards including, without limitation,
in the form of EU standard contractual clauses or applicable derogations provided for under applicable law.
The Company will keep personal information for
as long as necessary to operate the Plan or as necessary to comply with any legal or regulatory requirements.
The Participant has a right to (i) request access
to and rectification or erasure of the personal data provided, (ii) request the restriction of the processing of his or her personal data,
(iii) object to the processing of his or her personal data, (iv) receive the personal data provided to the Company and transmit such data
to another party, and (v) to lodge a complaint with a supervisory authority.
Section 19. Governing Law. The formation,
existence, construction, performance, validity and all aspects whatsoever of this Plan and of each Award Document and any Award granted
thereunder, including any rights and obligations arising out of or in connection with the same, shall be governed by, and construed in
accordance with, the substantive laws of Switzerland (with the exception of the conflict of law rules). The exclusive place of jurisdiction
for any dispute arising out of or in connection with this Plan or any
Award Document and any Award granted thereunder shall be Epalinges, Switzerland.
Section 20. Definitions. As used in the
Plan, the following terms shall have the meanings set forth below:
(a) “Affiliate” means
(i) any entity that, directly or indirectly, is controlled by the Company, (ii) any entity in which the Company, directly or
indirectly, has a significant equity interest, in each case as determined by the Committee and (iii) any other entity which the
Committee determines should be treated as an “Affiliate.”
(b) “Award” means any
Option, SAR, Restricted Share, RSU, Performance Award or Other Share-Based Award granted under the Plan.
(c) “Award Document”
means any agreement, contract or other instrument or document, which may be in electronic format, evidencing any Award granted under the
Plan, which may, but need not, be executed or acknowledged by a Participant.
(d) “Beneficiary” means
a person entitled to receive payments or other benefits or exercise rights that are available under the Plan in the event of the Participant’s
death. If no such person is named by a Participant, or if no Beneficiary designated by the Participant is eligible to receive payments
or other benefits or exercise rights that are available under the Plan at the Participant’s death, such Participant’s Beneficiary
shall be such Participant’s estate.
(e) “Board” means the
board of directors of the Company.
(f) “Cause” means,
with respect to any Participant, “cause” as defined in such Participant’s employment agreement with the Company, if
any, or if not so defined, except as otherwise provided in such Participant’s Award Document, such Participant’s:
(i) indictment for any crime
(A) constituting a felony, or (B) that has, or could reasonably be expected to result in, an adverse impact on the performance
of a Participant’s duties to the Company or any of its Subsidiaries, or otherwise has, or could reasonably be expected to result
in, an adverse impact to the business or reputation of the Company or any of its Subsidiaries;
(ii) having been the subject of any
order, judicial or administrative, obtained or issued by any securities law regulator (including the U.S. Securities and Exchange Commission)
or criminal law enforcement authority, for any securities violation involving fraud, including, for example, any such order consented
to by the Participant in which findings of facts or any legal conclusions establishing liability are neither admitted nor denied;
(iii) conduct, in connection
with his or her employment or service, which is not taken in good faith and has, or could reasonably be expected to result in, material
injury to the business or reputation of the Company or any of its Subsidiaries;
(iv) willful violation of
the Company’s code of conduct or other material policies set forth in the manuals or statements of policy of the Company or any
of its Subsidiaries;
(v) willful neglect in the
performance of a Participant’s duties for the Company or any of its Subsidiaries or willful or repeated failure or refusal to perform
such duties; or
(vi) material breach of any
applicable employment agreement or other agreement with the Company or, if applicable, any other reason or event that qualifies as a valid
reason as defined in article 337 of the Swiss Code of Obligations.
The occurrence of any such event described
in clauses (ii) through (vi) that is susceptible to cure or remedy shall not constitute Cause if such Participant cures or remedies such
event within 30 days after the Company provides notice to such Participant.
Any determination by the Company or any
Subsidiary that the Termination of Service of the Participant was made for Cause (or without Cause) for the purposes of outstanding Awards
held by such Participant shall not be determined by, and shall not be prejudicial or effective regarding, any determination of the rights
or obligations of the Company, any Subsidiary or the Participant for any other purpose.
(g) “Change in Control”
means the occurrence of any one or more of the following events:
(i) a direct or indirect change
in ownership or control of the Company effected through one transaction or a series of related transactions within a 12-month period,
whereby any Person (or a group of Persons acting in concert) other than the Company, directly or indirectly acquires or maintains beneficial
ownership of securities of the Company constituting more than 50% of the total combined voting power of the Company’s equity securities
issued and outstanding immediately after such acquisition;
(ii) at any time during a
period of 24 consecutive months, individuals who at the beginning of such period constituted the Board cease for any reason to constitute
a majority of members of the Board; provided, however, that any new member of the Board whose election or nomination for election
was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of such
period or whose election or nomination for election was so approved, shall be considered as though such individual were a member of the
Board at the beginning of the period, but excluding, for this purpose, any such individual whose initial assumption of office occurs as
a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the Board;
(iii) the consummation of
a merger, amalgamation or consolidation of the Company or any of its Subsidiaries with any other corporation or entity, other than a
merger, amalgamation or consolidation which would result
in the voting securities of the Company issued and outstanding immediately prior to such merger, amalgamation or consolidation continuing
to represent (either by remaining issued and outstanding or being converted into voting securities of the surviving entity or, if applicable,
the ultimate parent thereof) at least 50% of the combined voting power and total Fair Market Value of the securities of the Company or
such surviving entity or parent issued and outstanding immediately after such merger, amalgamation or consolidation; or
(iv) the consummation of any
sale, lease, exchange, or other transfer or disposition (including by way of a carve-out or spin-off transaction) to any Person (other
than an Affiliate of the Company), in one transaction or a series of related transactions within a 12-month period, of all or substantially
all of the assets of the Company and its Subsidiaries.
Notwithstanding the foregoing or any provision of
any Award Document to the contrary, for any Award to which Section 17 applies that provides for accelerated distribution on a Change in
Control of amounts that constitute “deferred compensation” (as defined in Section 409A and 457A of the Code), if the
event that constitutes such Change in Control does not also constitute a change in the ownership or effective control of the Company,
or in the ownership of a substantial portion of the Company’s assets (in either case, as defined in Section 409A and 457A of
the Code), such amount shall not be distributed on such Change in Control but instead shall vest as of the date of such Change in Control
and shall be paid on the scheduled payment date specified in the applicable Award Document, except to the extent that earlier distribution
would not result in the Participant who holds such Award incurring any additional tax, penalty, interest or other expense under Section 409A
and 457A of the Code.
(h) “Code” means the
U.S. Internal Revenue Code of 1986, as amended from time to time, and the rules, regulations and guidance thereunder. Any reference to
a provision in the Code shall include any successor provision thereto.
(i) “Committee” means
the Compensation Committee of the Board or such other committee as may be designated by the Board, or, at the Board’s discretion
with respect to any action, references herein to the “Committee” shall refer to the Board.
(j) “Disability” means,
with respect to any Participant, “disability” or the state of being “disabled” as defined in such Participant’s
employment agreement with the Company, if any, or if not so defined, except as otherwise provided in such Participant’s Award Document:
(i) the Participant’s disability for purposes of benefits under any long-term disability plan maintained by the Company or any Affiliate
in which the Participant participates; or (ii) the Participant’s inability, due to physical or mental incapacity, to perform the
essential functions of his or her job, with reasonable accommodation, that endures, or is reasonably expected to endure, for 180 days
in any 365-day period.
(k) “Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended from time to time, and the rules, regulations and guidance thereunder. Any
reference to a provision in the Exchange Act shall include any successor provision thereto.
(l) “Fair Market Value”means
(i) with respect to a Share, the closing price of a Share on the date in question (or, if there is no reported sale on such date,
on the last preceding date on which any reported sale occurred) on the principal stock market or exchange on which the Shares are quoted
or traded, or if Shares are not so quoted or traded, the fair market value of a Share as determined by the Committee, and (ii) with
respect to any property other than Shares, the fair market value of such property determined by such methods or procedures as shall be
established from time to time by the Committee.
(m) “Good Reason” means,
with respect to any Participant, “good reason” as defined in such Participant’s employment agreement with the Company,
if any, or if not so defined, except as otherwise provided in such Participant’s Award Document, the occurrence of any of the following,
in each case without the Participant’s written consent:
(i) a
material, adverse change in the Participant’s base salary or aggregate annual bonus opportunity, other than a general reduction
that affects all similarly situated employees in substantially the same proportions; or
(ii) a
material, adverse change in the Participant’s authority, duties, or responsibilities (other than temporarily while the Participant
is physically or mentally incapacitated or as required by applicable law).
The Participant cannot terminate his or her employment
for Good Reason unless he or she has provided written notice to the Company of the existence of the circumstances providing grounds for
termination for Good Reason within 60 days of the initial existence of such grounds and the Company has had at least 30 days from the
date on which such notice is provided to cure such circumstances. If the Participant does not terminate his or her employment for Good
Reason within 90 days after the first occurrence of the applicable grounds, then the Participant will be deemed to have waived his or
her right to terminate for Good Reason with respect to such grounds.
(n) “Other Share-Based Award”
means an Award granted in accordance with the provisions of Section 9.
(o) “Participant” means
the recipient of an Award granted under the Plan.
(p) “Performance Award”
means an Award granted in accordance with the provisions of Section 8.
(q) “Performance Period”
means the period established by the Committee at the time any Performance Award is granted or at any time thereafter during which any
performance goals specified by the Committee with respect to such Award are measured.
(r) “Person” means
a natural person or a partnership, company, association, cooperative, mutual insurance society, foundation or any other body which operates
externally as an independent unit or organisation.
(s) “Publicly Listed”
means, with respect to a security, that such security is publicly traded on an established stock exchange or national market system; and,
with respect to an entity, that such entity is the issuer of a security that is Publicly Listed.
(t) “Replacement Award”
means an Award granted in assumption of, or in substitution for, an outstanding award previously granted by a company or business acquired
by the Company or with which the Company, directly or indirectly, combines (whether by way of amalgamation, merger, sale and purchase
of shares or other securities or otherwise).
(u) “Restricted Share”
means any Share granted in accordance with the provisions of Section 5.
(v) “RSU” means a contractual
right granted in accordance with the provisions of Section 5 that is denominated in Shares.
Each RSU represents a right to receive the value of one Share. Awards of RSUs may include the right to receive dividend equivalents.
(w) “Securities Act”
means the Securities Act of 1933, as amended from time to time, and the rules, regulations and guidance thereunder. Any reference to a
provision in the Securities Act shall include any successor provision thereto.
(x) “Shares” means
common shares of the Company.
(y) “Subsidiary” means
any corporation, limited liability company, joint venture or partnership of which the Company (a) directly or indirectly owns more than
fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such entity, (ii) the total combined
equity interests, or (iii) the capital or profit interests, in the case of a partnership; or (b) otherwise has the power to vote, either
directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body.
(z) “Termination of Service”
means cessation of the employment relationship such that the Participant is no longer an employee of the Company or Subsidiary; or
provided, however, that the transfer of employment from the
Company to a Subsidiary, from a Subsidiary to the Company, from one Subsidiary to another Subsidiary or, unless the Committee determines
otherwise, the cessation of employee status but the continuation of the performance of services for the Company or a Subsidiary as a member
of the Board or a consultant or other advisor shall not be deemed a cessation of service that would constitute a Termination of Service;
and provided further that a Termination of Service will be deemed to occur for a Participant employed by a Subsidiary when a Subsidiary
ceases to be a Subsidiary, unless such Participant’s employment continues with the Company or another Subsidiary.
Exhibit
107.1
Calculation
of Filing Fee Tables
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE SECURITIES ACT OF 1933
ADC
THERAPEUTICS SA
(Exact
Name of Registrant as Specified in Its Charter)
Table
1: Newly Registered Securities
Security
Type |
Security
Class Title (1) |
Fee
Calculation Rule |
Amount
Registered (2) |
Proposed
Maximum Offering Price Per Unit (2) |
Maximum
Aggregate Offering Price |
Fee
Rate |
Amount
of Registration Fee (3) |
Equity
|
Common
Shares, par value CHF 0.08 each, to be issued pursuant to the ADC Therapeutics SA Conditional Share Capital Plan |
Rule
457(c) and Rule 457(h) |
8,000,000 |
$0.74 |
$5,920,000 |
$147.60
per $1,000,000 |
$874.00 |
Equity
|
Common
Shares, par value CHF 0.08 each, to be issued pursuant to the ADC Therapeutics SA Inducement Plan |
Rule
457(c) and Rule 457(h) |
1,000,000 |
$0.74 |
$740,000
|
$147.60
per $1,000,000 |
$110.00 |
Total
Offering Amounts |
|
$6,660,000
|
|
$984.00 |
Total
Fee Offsets (4) |
|
|
|
- |
Net
Fee Due |
|
|
|
$984.00 |
|
(1) | This
Registration Statement on Form S-8 (this “Registration Statement”) covers
common shares, par value CHF 0.08 each (“Common Shares”), of ADC Therapeutics
SA (the “Registrant”) issuable pursuant to the ADC Therapeutics SA Conditional
Share Capital Plan, as amended and restated (the “Conditional Share Capital Plan”
and the ADC Therapeutics SA Inducement Plan (the “Inducement Plan”)).
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), this Registration Statement shall also cover any additional Common Shares
that become issuable under the Conditional Share Capital Plan and/or the Inducement Plan
by reason of any share dividend, share split or other similar transaction. |
| (2) | Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(h) and Rule
457(c) under the Securities Act on the basis of the average high and low sale prices of Common
Shares on the New York Stock Exchange on November 29, 2023. |
| (3) | Rounded
up to the nearest penny. |
| (4) | The
Registrant does not have any fee offsets. |
ADC Therapeutics (NYSE:ADCT)
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ADC Therapeutics (NYSE:ADCT)
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부터 5월(5) 2023 으로 5월(5) 2024