As filed with the Securities and Exchange Commission on April 14, 2017

 

Registration No. 333-______

 

UNITED STATES 

SECURITIES AND EXCHANGE COMMISSION 

Washington, D.C. 20549

 FORM S-8 

REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933 

 

Auris Medical Holding AG

(Exact Name of Registrant as Specified in Its Charter)

 

Switzerland		Not Applicable
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification Number)
	Bahnhofstrasse 21 6300 Zug Switzerland
(Address, Including Zip Code of Principal Executive Offices)

 

 

Auris Medical Holding AG Equity Incentive Plan, as amended

(Full title of Plans)

 

  

National Corporate Research, Ltd. 10 East 40th Street New York, New York 10016 (212) 947-7200

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

 

 

 

	Copies to:
	Sophia Hudson  Davis Polk & Wardwell LLP  450 Lexington Avenue  New York, New York 10017  (212) 450-4000

 

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

 

Large accelerated filer ☐                                                                                        Accelerated filer ☐

 

Non-accelerated filer ☒ (Do not check if a smaller reporting company)        Smaller reporting company ☐

 

 

CALCULATION OF REGISTRATION FEE
Title Of Securities To Be Registered	Amount To Be Registered(1)	Proposed Maximum Offering Price Per Share(2)	Proposed Maximum Aggregate Offering Price(2)	Amount Of Registration Fee
Common Shares, nominal value CHF 0.40 per share	5,141,000	$0.72	$3,701,520	$429.01

(1)

This Registration Statement on Form S-8 (this “Registration Statement”) covers (i) common shares, nominal value CHF 0.40 per share (“Common Shares”), of Auris Medical Holding AG (the “Registrant”), issuable pursuant to the Auris Medical Holding AG Equity Incentive Plan, as amended (the “EIP”); and (ii) pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), any additional Common Shares that become issuable under the EIP by reason of any share dividend, share split or other similar transaction.

 

(2)

Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act, solely for the purpose of computing the registration fee for Common Shares to be issued pursuant to the EIP, based on the average of the high and low prices reported for a Common Share on the NASDAQ Global Select Market on April 7, 2017.

 

EXPLANATORY NOTE

 

This Registration Statement has been prepared and filed pursuant to and in accordance with the requirements of General Instruction E to Form S-8 for the purpose of registering an additional 5,141,000 Common Shares that are issuable at any time or from time to time under the EIP. Pursuant to General Instruction E, the contents of the Registration Statement on Form S-8 filed for the EIP with the U.S. Securities and Exchange Commission (the “Commission”) on December 8, 2014 (Registration File No. 333-200805), including the documents incorporated by reference therein, are incorporated by reference into this Registration Statement, except as supplemented by the information set forth below.

 

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 delivered to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of 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 for the fiscal year ended December 31, 2016, filed with the Commission on March 14, 2017 (Registration File No. 001-36582).

 

(b)       All reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since December 31, 2016.

 

(c)        The description of the Registrant’s Common Shares which is contained in the Registrant’s Exchange Act Registration Statement on Form 8-A (Registration File No. 001-36582), dated July 29, 2014 and amended on June 1, 2016, including any amendments or supplements thereto or report filed for the purpose of updating such description.

 

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 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, 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.

 

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 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit Number
4.1	Articles of Association of Auris Medical Holding AG (incorporated by reference to exhibit 4.1 of the Registration Statement on Form F-3 filed with the Commission on April 14, 2017)
4.2	Form of Registration Rights Agreement (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form F-1/A, filed with the Commission on July 21, 2014 (Registration File No. 333-197105))
5	Opinion of Walder Wyss Ltd., Swiss counsel to the Registrant (filed herewith)
23.1	Consent of Deloitte AG (filed herewith)
23.2	Consent of Walder Wyss Ltd., Swiss counsel to the Registrant (included in Exhibit 5)
24	Power of Attorney (included in the signature pages hereof)
99.1	Auris Medical Holding AG Equity Incentive Plan, as amended (filed herewith)

 

 

Signatures

 

Pursuant to the requirements of the Securities Act of 1933, 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 Zug, Switzerland on this 14^th day of April, 2017.

 

Auris Medical Holding AG
By:	/s/ Thomas Meyer
	Name: Thomas Meyer
	Title: Chief Executive Officer

 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Thomas Meyer, Hernan Levett and Anne Sabine Zoller 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 U.S. Securities Act of 1933, 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 such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:

 

Name	Title	Date
/s/ Thomas Meyer	Chief Executive Officer and Director	April 14, 2017
Thomas Meyer	(principal executive officer)

 

/s/ Hernan Levett	Chief Financial Officer	April 14, 2017
Hernan Levett	(principal financial officer and principal accounting officer)

  

/s/ Armando Anido	Director	April 14, 2017
Armando Anido
/s/ Oliver Kubli	Director	April 14, 2017
Oliver Kubli
/s/ Berndt A.E. Modig	Director	April 14, 2017
Berndt A.E. Modig
/s/ Antoine Papiernik	Director	April 14, 2017
Antoine Papiernik
/s/ Calvin Roberts	Director	April 14, 2017
Calvin Roberts
	Director	April 14, 2017
Mats Peter Blom
/s/ Colleen A. DeVries	SVP of National Corporate Research, Ltd.	April 14, 2017
Colleen A. DeVries	Authorized Representative in the United States

 

 

 

 

EXHIBIT INDEX

 

Exhibit Number
4.1	Articles of Association of Auris Medical Holding AG (incorporated by reference to exhibit 4.1 of the Registration Statement on Form F-3 filed with the Commission on April 14, 2017)
4.2	Form of Registration Rights Agreement (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form F-1/A, filed with the Commission on July 21, 2014 (Registration File No. 333-197105))
5	Opinion of Walder Wyss Ltd., Swiss counsel to the Registrant (filed herewith)
23.1	Consent of Deloitte AG (filed herewith)
23.2	Consent of Walder Wyss Ltd., Swiss counsel to the Registrant (included in Exhibit 5)
24	Power of Attorney (included in the signature pages hereof)
99.1	Auris Medical Holding AG Equity Incentive Plan, as amended (filed herewith)

 

 

Exhibit 5

 

Walder Wyss Ltd.  Seefeldstrasse 123  P.O. Box  8034 Zurich  Switzerland    Telephone +41 58 658 58 58  Fax +41 58 658 59 59  www.walderwyss.com

To:

 

Auris Medical Holding AG 

Bahnhofstrasse 21 

6300 Zug 

Switzerland

 

 

Zurich, as of 14 April 2017

 

Auris Medical Holding AG – Swiss Legal Opinion (Registration Statement on Form S-8)

 

Dear Madam, Dear Sir,

 

We have acted as Swiss counsel to Auris Medical Holding AG, Zug, Switzerland (the Company) in connection with the filing on the date hereof of a registration statement on Form S-8 (the Registration Statement) by the Company with the U.S. Securities and Exchange Commission (the Commission) pursuant to the Securities Act of 1933, as amended (the Securities Act) for the purpose of registering under the Securities Act the offer of 5,141,000 registered common shares, par value of CHF 0.40 each of the Company, which may be issued on the basis of the Company’s Conditional Share Capital (as defined below) after the date hereof pursuant to the Company’s equity incentive plan which was adopted by the Company’s board of directors on 13 April 2017 (the Equity Incentive Plan) (such shares, the Shares and each a Share).

 

As such counsel, we have been requested to render an opinion as to certain matters of Swiss law.

 

 

 

1.

Scope and Limitation of Opinion

 

Our opinion is strictly confined to matters of Swiss law as in force at the date hereof and as it is presently applied by the Swiss courts. Such law and its interpretation are subject to change. In the absence of explicit statutory law or established case law, we base our opinion solely on our independent professional judgment.

 

Our opinion is strictly limited to the Documents (as defined below) and the matters stated herein and is not to be read as extending, by implication or otherwise, to any agreement or document referred to in any of the Documents or any other matter.

 

For purposes of this opinion, we have not conducted any due diligence or similar investigation or verification as to any matters stated herein.

 

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 language terms as they exist under the laws of other jurisdictions.

 

2.

Documents

 

For purposes of rendering the opinion expressed herein, we have received the following documents (the Documents):

 

(a)

a .pdf copy of the Registration Statement;

 

(b)

a .pdf copy of the Equity Incentive Plan;

 

(c)

a .pdf copy of the resolution of the board of directors of the Company dated 13 April 2017 approving, among others, the adoption of the Equity Incentive Plan (the Board Resolution);

 

(d)

a .pdf copy of the certified articles of incorporation of the Company in their version of 13 April 2017 (the Articles);

 

(e)

a .pdf copy of the resolution of the Company’s shareholders’ meeting, dated 13 April 2017 approving, among others, the amendments to the

 

 

authorized share capital and the conditional share capital of the Company under its articles of association (the AGM Resolution); and

 

(f)

a .pdf copy of a certified excerpt from the daily registry (Tagebuchauszug) of the Commercial Register of the Canton of Zug dated 13 April 2017 relating to recording of the revised articles of association as per the AGM Resolution (the Excerpt).

 

No documents have been reviewed by us in connection with this opinion other than the Documents listed in this Section 2 (Documents).

 

All terms used in this opinion in uppercase form shall have the meaning ascribed to them in the Registration Statement, unless otherwise defined herein.

 

3.

Assumptions

 

In rendering the opinion below, we have assumed:

 

(a)

the conformity to the Documents of all documents produced to us as copies, fax copies or via e-mail, and that the original was executed in the manner appearing on the copy of the draft;

 

(b)

the genuineness and authenticity of the signatures on all copies of the original Documents thereof which we have examined, and the accuracy of all factual information contained in, or material statements given in connection with, the Documents;

 

(c)

the Board Resolutions have been duly resolved in meetings duly convened, or, respectively, in duly executed circular resolutions and have not been rescinded or amended and are in full force and effect;

 

(d)

the AGM Resolution has been duly resolved in a meeting duly convened and has not been rescinded or amended and is in full force and effect;

 

(e)

the Registration Statement and the Equity Incentive Plan have been duly filed by the Company;

 

(f)

the Articles and the Excerpt are unchanged and correct as of the date hereof and no changes have been made which should have been or should be reflected in the Articles and the Excerpt as of the date hereof;

 

 

(g)

the exercise notice with respect to the Shares to be issued out of the Conditional Share Capital of the Company will be duly delivered in accordance with the Equity Incentive Plan;

 

(h)

the payment of the exercise price in connection with an exercise notice relating to Shares will be made in accordance with the Equity Incentive Plan; and

 

(i)

if and to the extent the Shares are to be issued out of the Company’s Conditional Share Capital, such Shares are and will be issued and fully paid up in compliance with the laws of Switzerland.

 

 

4.

Opinion

 

Based upon the foregoing and subject to the qualifications set out below, we are of the following opinion:

 

The Company’s conditional share capital for equity incentive plans under article 3b para. 3 of the Articles (the Conditional Share Capital) provides the Company with the authority to issue up to 6,500,000 registered common shares with a par value of CHF 0.40 each for purposes of the Equity Incentive Plan without the requirement of further approval in connection with the Equity Incentive Plan. If and to the extent the Shares are issued out of the Conditional Share Capital of the Company pursuant to the Equity Incentive Plan, such Shares will be validly issued, fully paid and non-assessable.

 

5.

Qualifications

 

The above opinions are subject to the following qualifications:

 

(a)

The lawyers of our firm are members of the Swiss bar and do not hold themselves to be experts in any laws other than the laws of Switzerland. Accordingly, we are opining herein as to Swiss law only and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction.

 

(b)

This opinion is based on the current provisions of the laws of Switzerland and the regulations thereunder in effect on the date hereof and only as currently interpreted in Switzerland. Such laws and their interpretation are subject to change.

 

(c)

We express no opinion as regards the withdrawal of the shareholders’ preferential subscription rights (Vorwegzeichnungsrechte) in connection with any issuance of Shares.

 

(d)

When used in this opinion, the term “non-assessable” means that no further contributions have to be made to the Company by the relevant holder of the Shares.

 

(e)

We express no opinion as to the future availability of conditional share capital of the Company.

 

 

(f)

Any issuance of the Shares out of conditional share capital must be confirmed by the auditor of the Company, and amended articles of association of the Company reflecting the issuance of Shares out of the conditional share capital, together with ascertainments by the Company's board of directors in a public deed and said confirmation by the Company's auditor, must be filed with the competent commercial register no later than three months after the end of the Company's fiscal year.

 

(g)

We express no opinion as to the accuracy or completeness of the information contained in the Registration Statement.

 

(h)

We express no opinion as to any commercial, calculating, auditing or other non-legal matters. Further, we express no opinion as to tax law.

 

6.

Miscellaneous

 

(a)

We do not assume any obligation to advise you of any changes in applicable law or any other matter that may come to our attention after the date hereof that may affect our opinion expressed herein.

 

(b)

We hereby consent to the filing of this opinion on the date hereof with the Commission as an exhibit to the Registration Statement and to the incorporation by reference of this opinion in the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

 

(c)

This opinion is governed by and shall be construed in accordance with the substantive laws of Switzerland, the ordinary Courts of Zurich having exclusive jurisdiction.

 

Yours faithfully,
/s/ Alex Nikitine	/s/ Markus Pfenninger
Alex Nikitine	Markus Pfenninger

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 10, 2017, relating to the consolidated financial statements as of and for the year ended December 31, 2016 of Auris Medical Holding AG and its subsidiaries (the “Company”), appearing in the Annual Report on Form 20-F of the Company for the year ended December 31, 2016.

 

Deloitte AG

 

 

/s/ Matthias Gschwend

/s/ Adrian Kaeppeli

 

 

Zurich, Switzerland 

April 14, 2017

 

 

EXHIBIT 99.1

 

Auris Medical Holding AG

 

Equity Incentive Plan

 

Adopted August 21, 2014 and amended on April 13, 2017

 

Section 1. Purpose. The purpose of the Auris Medical Holding AG Long Term Incentive Plan (the “Plan”) is to motivate and reward those employees and other individuals who are expected to contribute significantly to the success of Auris Medical Holding AG (the “Company”) and its Affiliates, to perform at the highest level and to further the best interests of the Company and its shareholders.

 

Section 2. 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 and (ii) any entity in which the Company, directly or indirectly, has a significant equity interest, in each case as determined by the Committee.

 

(b)       “Applicable Laws” means the laws applicable to the Company, its Affiliate, any employment or other relationship with a Participant, as the case may be, stock market or exchange rules and regulations or any stock exchange on which the Company is listed, or applicable accounting or tax rules and regulations.

 

(c)       “Award” means any Option, SAR, Restricted Stock, RSU, Performance Award or Other Stock-Based Award granted under the Plan.

 

(d)       “Award Agreement” means any agreement, contract or other instrument or document evidencing any Award granted under the Plan, which may, but need not, be executed or acknowledged by a Participant.

 

(e)        “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 in accordance with Applicable Law.

 

(f)       “Board” means the board of directors of the Company.

 

(g)       “Cause” means, with respect to any Participant, “cause” as defined in such Participant’s Award Agreement, or if not so defined, such Participant:

 

(i)       having engaged in material misconduct in providing services to the Company or its Affiliates, including a material breach of the Company or its Affiliates internal policies or code of conduct;

 

(ii)       having engaged in conduct that he or she knew or reasonably should have known would be materially injurious to the Company or its Affiliates;

 

(iii)       having committed (x) a felony or (y) any other criminal offense involving moral turpitude, fraud or, in the course of the performance of the Participant’s service to the Company or its Affiliates, material dishonesty; or

 

(iv)       the commission of an act of fraud, embezzlement or misappropriation, in each case, against the Company or any Affiliate.

 

(h)       “Change of Control” means the occurrence of any one or more of the following events:

 

(i)       any one person, or more than one person acting as a group, acquires directly or indirectly ownership of the stock of the Company that, together with the stock held by such person or group, that constitutes more than 50% of the combined voting power of the Company’s outstanding securities ; or

 

(ii)       the consummation of (A) a merger or consolidation of the Company or any of its Affiliates with any other corporation or entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining 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 outstanding immediately after such merger or consolidation, or (B) any sale, lease, exchange or other transfer to any person or entity of assets of the Company and/or any of its Affiliates, in one transaction or a series of related transactions, having an aggregate fair market value of more than 50% of the fair market value of the Company and its Affiliates (the “Company Value”) immediately prior to such transaction(s), but only to the extent that, in connection with such transaction(s) or within a reasonable period thereafter, the Company’s stockholders receive distributions of cash and/or assets having a fair market value that is greater than 50% of the Company Value immediately prior to such transaction(s).

 

(i)       “Code” means the 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.

 

(j)       “Committee” means the compensation committee of the Board or such other committee as may be designated by the Board. If the Board does not designate the Committee, references herein to the “Committee” shall refer to the Board.

 

(k)       “Consultant” means any person, including an advisor, who is providing services to the Company or any Affiliate other than as an employee, officer or Director.

 

(l)        “Director” means any member of the Company’s Board of Directors.

 

(m)       “Disability” means, with respect to any Participant,:

 

(i)       a permanent and total disability that entitles the Participant to disability income payments under any long-term disability plan or policy provided by the

 

Company, its Affiliates or a pension plan under which the Participant is covered, as such plan or policy is then in effect;

 

(ii)       a permanent and total disability that entitles the Participant to disability income payments under any government invalidity or disability insurance; or

 

(iii)       if the Participant is not covered under a long-term disability plan or insurance, then the term “Disability” means that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted, or can be expected to last, for a continuous period of not less than 12 months. In this case, the existence of any such Disability will be certified by a physician acceptable to the Company.

 

(n)       “Effective Date” means the date on which the Plan is adopted by the Board.

 

(o)       “Employee” means any person employed by the Company or any Affiliate, with the status of employment determined based upon such factors as are deemed appropriate by the Committee in its discretion.

 

(p)       “Employment Agreement” means any employment, or similar agreement between the Company or any of its Affiliates and a Participant.

 

(q)       “Exchange Act” means the 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.

 

(r)       “Fair Market Value” means (i) with respect to Shares, the closing price of a Share on the day prior to the date in question (or, if there is no reported sale on such prior day, 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, 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.

 

(s)       “Intrinsic Value” with respect to an Option or SAR Award means (i) the excess, if any, of the price or implied price per Share in a Change of Control or other event over (ii) the exercise or hurdle price of such Award multiplied by (iii) the number of Shares covered by such Award.

 

(t)        “Option” means an option representing the right to purchase Shares from the Company, granted pursuant to ‎Section 5.

 

(u)       “Other Stock-Based Award” means an Award granted pursuant to ‎Section 9.

 

(v)       “Participant” means the recipient of an Award granted under the Plan.

 

(w)       “Performance Award” means an Award granted pursuant to ‎Section 8.

 

(x)       “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.

 

(y)        “Restricted Stock” means any Share granted pursuant to ‎Section 7.

 

(z)        “Retirement” means the Participant’s retirement after reaching the retirement age as established by the legislation in force in the jurisdiction of the Participant’s principal place of employment or as otherwise determined under applicable Company or Affiliate policies.

 

(aa)    “RSU” (“Restricted Stock Units”) means a contractual right granted pursuant to ‎Section 7 that is denominated in Shares. Each RSU represents a right to receive the value of one Share (or a percentage of such value) in cash, Shares or a combination thereof. Awards of RSUs may include the right to receive dividend equivalents.

 

(bb)    “SAR” (“Stock Appreciation Right”) means any right granted pursuant to ‎Section 6 to receive upon exercise by a Participant or settlement, in cash, Shares or a combination thereof, the excess of (i) the Fair Market Value of one Share on the date of exercise or settlement over (ii) the exercise or hurdle 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.

 

(cc)     “Shares” means shares of the Company’s common stock.

 

(dd)     “Substitute Award” means an Award granted in assumption of, or in substitution for, an outstanding award previously granted by a company or other business acquired by the Company or with which the Company combines.

 

(ee)     “Termination of Service” means, (i) in the case of a Participant who is an employee of the Company or an Affiliate, cessation of the employment relationship such that the Participant is no longer an employee of the Company or Affiliate, or, (ii) in the case of a Participant who is an independent contractor or other service provider, the date the performance of services for the Company or an Affiliate ended, or, (iii) in the case of a Director, the date such person ceases to provide services as a Director; provided, however, that in the case of an employee, the transfer of employment from the Company to an Affiliate, from an Affiliate to the Company, from one Affiliate to another Affiliate or, unless the Committee determines otherwise, the cessation of employee status but the continuation of the performance of services for the Company or an Affiliate as a Director or an independent contractor shall not be deemed a cessation of service that would constitute a Termination of Service; provided, further, that a Termination of Service will be deemed to occur for a Participant employed by an Affiliate when an Affiliate ceases to be an Affiliate unless such Participant’s employment continues with the Company or another Affiliate.

 

Section 3. Eligibility.

 

(a)       Any Employee, Director, Consultant or any other individual who provides services to the Company or any Affiliate shall be eligible to be selected by the Committee at its discretion to receive an Award under the Plan, to the extent an offer of an Award or a receipt of such Award is permitted by Applicable Law.

 

(b)       Holders of options and other types of awards granted by a company acquired by the Company or with which the Company combines are eligible to be selected by the Committee at its discretion for grants of Substitute Awards under the Plan to the extent permitted under Applicable Law.

 

Section 4. Administration.

 

(a)       Administration of the Plan. The Plan shall be administered by the Committee. All decisions of the Committee shall be final, conclusive and binding upon all parties, including the Company and its Participants and any Beneficiaries thereof. The Committee may issue rules and regulations for administration of the Plan. It shall meet at such times and places as it may determine. The Committee may delegate to one or more officers of the Company the authority to grant Awards.

 

(b)       Authority of Committee. Subject to the terms of the Plan, the Company’s articles of association 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 Substitute Awards) to be granted to each Participant under the Plan; (iii) determine the terms and conditions of any Award; (iv) determine whether, to what extent and under what circumstances Awards may be settled or exercised in cash, Shares, other Awards, other property, net settlement, 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; (v) 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; (vi) interpret and administer the Plan and any instrument or agreement relating to, or Award made under, the Plan; (vii) establish, amend, suspend or waive such rules and regulations and appoint such agents, trustees, brokers, depositories and advisors and determine such terms of their engagement as it shall deem appropriate for the proper administration of the Plan and due compliance with Applicable Law; and (viii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan and due compliance with Applicable Law.

 

(c)       Restrictive Covenants. The Committee may impose restrictions on any Award with respect to non-competition, confidentiality and other restrictive covenants as it deems necessary or appropriate in its sole discretion.

 

Section 5. Options. Within the limits of the articles of association, 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 at the time of grant; provided, however, that such exercise price shall not be less than the nominal value of a Share on the date of grant of such Option. A grantee of an Option shall not have any rights to dividends or other rights of a shareholder with respect to Shares subject to the Option until the grantee has exercised the Option and the Company has issued Shares to the grantee.

 

(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; provided that the Committee may (but shall not be required to) provide in an Award Agreement for an extension of such 10-year term in the event the exercise of the Option would be prohibited by law on the expiration date.

 

(c)       The Committee shall determine the time or times at which an Option becomes vested and exercisable in whole or in part; provided that the minimum vesting period shall be 3 months. The Committee may specify in an Award Agreement that an “in-the-money” Option shall be automatically exercised on its expiration date.

 

(d)       The Committee shall determine the method or methods by which, and the form or forms, including cash, Shares, other Awards, other property, net settlement, broker assisted cashless exercise or any combination thereof, having a Fair Market Value on the exercise date equal to the exercise price of the Shares as to which the Option shall be exercised, in which payment of the exercise price with respect thereto may be made or deemed to have been made.

 

Section 6. Stock 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”) and may, but need not, relate to a specific Option granted under ‎Section 5.

 

(b)       The exercise or hurdle price per Share under a SAR shall be determined by the Committee; provided, however, that, except in the case of Substitute Awards, such exercise or hurdle price shall not be less than the Fair Market Value of a Share on the date of grant of such SAR.

 

(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.

 

Section 7. Restricted Stock and RSUs. The Committee is authorized to grant Awards of Restricted Stock 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 Award Agreement shall specify the vesting schedule and, with respect to RSUs, the delivery schedule (which may include deferred delivery later than the vesting date).

 

(b)       Shares of Restricted Stock and RSUs shall be subject to such restrictions as the Committee may impose (including any limitation on the right to vote a Share of Restricted Stock 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.

 

(c)       Any share of Restricted Stock granted under the Plan may be evidenced in such manner as the Committee may deem appropriate, including book-entry registration.

 

(d)       The Committee may condition the grant of Restricted Stock or RSUs upon the attainment of specified performance criteria set forth in ‎Section 8.

 

(e)       Unless otherwise determined by the Committee, an amount equivalent to any dividends declared on a Share will be credited with respect to an Award of Restricted Stock or RSUs and will be paid out in cash or Shares, as determined by the Committee, upon the vesting of the applicable Restricted Stock or RSU.

 

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, 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.

 

(b)       Settlement of Performance Awards shall be in cash, Shares, other Awards, other property, net settlement, or any combination thereof, in the discretion of the Committee. The Committee shall specify the circumstances in which, and the extent to which, Performance Awards shall be paid or forfeited in the event of a Participant’s Termination of Service.

 

(c)       Performance Awards will be settled only after the end of the relevant Performance Period.

 

Section 9. Other Stock-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, purchase 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. Shares delivered pursuant to an Award in the nature of a purchase right granted under this ‎Section 9 shall be purchased for such consideration, paid for at such times, by such methods and in such forms, including cash, Shares, other Awards, other property, or any combination thereof, as the Committee shall determine. Cash awards, as an element of or supplement to any other Award under the Plan, may also be granted pursuant to this ‎Section 9.

 

Section 10. Effect of Termination of Service or a Change of Control on Awards.

 

(a)       The Committee may provide, by rule or regulation or in any Award Agreement, the circumstances in which, and the extent to which, an Award may be exercised, settled, vested, paid or forfeited, including by way of repurchase by the Company, in the event of a Participant’s Termination of Service prior to the end of a Performance Period or exercise or settlement of such Award.

 

(b)       The Committee may set forth the treatment of an Award upon a Change of Control in the applicable Award Agreement.

 

(c)       In the case of an Option or SAR Award, except as otherwise provided in the applicable Award Agreement, upon a Change of Control, a merger or consolidation involving the Company or any other event with respect to which the Committee deems it appropriate, the Committee may cause such Award to be canceled in consideration of (i) the full acceleration of such Award and either (A) a period of at least ten days prior to the effective date of such Change of Control to exercise the Award or (B) a payment in cash or other consideration to the Participant who holds such Award in an amount equal to the Intrinsic Value of such Award (which may be equal to but not less than zero), which, if in excess of zero, shall be payable upon the effective date of such Change of Control, merger, consolidation or other event or (ii) a Substitute Award (which immediately upon grant shall have an Intrinsic Value equal to the Intrinsic Value of such Award).

 

Section 11. General Provisions Applicable to Awards.

 

(a)       Awards shall be granted for such cash or other consideration, if any, as the Committee determines but within the limits of the articles of association; provided that in no event shall Awards be issued for less than such minimal consideration as may be required by applicable law.

 

(b)       Awards may, in the discretion of the Committee but within the limits of the articles of association and any shareholders’ resolutions applicable, 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, 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 but within the limits of the articles of association and any shareholders’ resolutions at the time of grant, 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, as specifically provided in an Award Agreement or in the event of the Participant’s death, (i) no Award and no right under any Award shall be assignable, alienable, saleable or transferable by a Participant and (ii)

 

during a Participant’s lifetime, each Award, and each right under any Award, shall be exercisable only by such Participant. 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.

 

Section 12. Amendments and Termination.

 

(a)       Amendment or Termination of Plan. Except to the extent prohibited by Applicable Law and unless otherwise expressly provided in an Award Agreement 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 the consent of the affected Participant, if such action would materially adversely affect the vested rights of such Participant under any outstanding Award, except (x) to the extent any such amendment, alteration, suspension, discontinuance or termination is made to cause the Plan to comply with the Company’s articles of association and Applicable Law or (y) to impose any “clawback” or recoupment provisions on any Awards in accordance with ‎Section 16 of the Plan. Notwithstanding anything to the contrary in the Plan, the Committee may amend the Plan, or create sub-plans, in such manner as may be necessary to enable the Plan to achieve its stated purposes in any jurisdiction in a tax-efficient manner and in compliance with the Company’s articles of association and Applicable Laws. 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.

 

(b)       Dissolution or Liquidation. In the event of the dissolution or liquidation of the Company, each Award will terminate immediately prior to the consummation of such action, unless otherwise determined by the Committee.

 

(c)       Terms of Awards. The Committee may waive any conditions or rights under, amend any terms of, or amend, alter, suspend, discontinue or terminate any Award granted, prospectively or retroactively, without the consent of any relevant Participant or holder or Beneficiary of an Award; provided, however, that no such action shall materially adversely affect the rights of any affected Participant or holder or Beneficiary under any Award granted under the Plan, except (x) to the extent any such action is made to cause the Plan to comply with the Company’s articles of association and Applicable Law, or (y) to impose any “clawback” or recoupment provisions on any Awards in accordance with ‎Section 16 of the Plan. 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 13(e)) affecting the Company, or the financial statements of the Company, or of changes in the Company’s articles of association or Applicable Laws, 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)       No Repricing. Notwithstanding the foregoing, except as provided in Section 13(e), no action shall directly or indirectly, through cancellation and regrant or any other method, reduce, or have the effect of reducing, the exercise price of any Award established at the time of grant thereof without approval of the Committee.

 

Section 13. 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 Participants under the Plan. The terms and conditions of Awards need not be the same with respect to each Participant. Any Award granted under the Plan shall be a one-time Award that does not constitute a promise of future Awards. The Company, in its sole discretion, maintains the right to make available future Awards under the Plan.

 

(b)       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 Agreement 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 Agreement.

 

(c)       Nothing contained in the Plan shall prevent the Company or any Affiliate 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.

 

(d)       The Company, or as the case may be, any Affiliate, 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 social security contributions, withholding taxes, source taxes and/or any other applicable taxes and contributions due 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 such Participant) as may be necessary in the opinion of the Company or as the case may be, any Affiliate, to satisfy all obligations for the payment of such taxes; provided that if the Committee allows the withholding or surrender of Shares to satisfy a Participant’s social security contributions, withholding taxes, source taxes and/or any other applicable taxes and contributions, the Company shall not allow Shares to be withheld in an amount that exceeds the minimum statutory withholding rates for applicable tax purposes, including payroll taxes.

 

(e)       In the event that the Board determines that, as a result of any dividend or other distribution (whether in the form of cash, Shares or other securities), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of Shares or other securities of the Company, issuance of warrants or other rights to purchase Shares or other securities of the Company, issuance of Shares pursuant to the anti-dilution provisions of securities of the Company, or other similar corporate transaction or event affecting the Shares, or of changes in Applicable Laws or accounting principles, an adjustment is appropriate 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 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; and

 

(iii)       the grant, purchase, exercise or hurdle price with respect to any Award or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Award;

 

provided, however, that the number of Shares subject to any Award denominated in Shares shall always be a whole number.

 

(f)       If any provision of the Plan or any Award Agreement 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 Agreement, such provision shall be stricken as to such jurisdiction, person or Award, and the remainder of the Plan and any such Award Agreement shall remain in full force and effect.

 

(g)       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.

 

(h)       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.

 

Section 14. Effective Date of the Plan. The Plan shall be effective as of the Effective Date.

 

Section 15. Term of the Plan. No Award shall be granted under the Plan after the Board terminates the Plan in accordance with ‎Section 12(a). However, unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award granted prior to such date shall remain in full force and effect, 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 termination date.

 

Section 16. Cancellation or “Clawback” of Awards. The Company may, to the extent permitted by applicable law and stock exchange rules or by any applicable Company policy or arrangement, and shall, to the extent required, cancel or require reimbursement of any Awards granted to a Participant. Any Award granted to a member of the Company’s executive management team or Board is, to the extent required by applicable Swiss laws and the Company’s articles of association, subject to approval by the general meeting of the shareholders of the Company.

 

Section 17. Section 409A of the Code. In the case any Participant is subject to U.S. taxation, with respect to Awards subject to Section 409A of the Code (“Section 409”), awards granted to such Participant under the Plan are intended to comply with the requirements of Section 409A and the regulations thereunder, and shall be interpreted in a manner that satisfies the requirements of Section 409A. Notwithstanding anything else in the Plan, if the Board considers a Participant to be a “specified employee” under Section 409A at the time of such Participant’s “separation from service” (as defined in Section 409A) and the amount hereunder is “deferred compensation” subject to Section 409A, any distribution that otherwise would be made to such Participant with respect to this Award as a result of such termination shall not be made until the date that is six months after such separation from service, except to the extent that earlier distribution would not result in such Participant’s incurring interest or additional tax under Section 409A.

 

Section 18. Governing Law. The Plan and each Award Agreement shall be governed by the laws of Switzerland, without application of the conflicts of law principles thereof.