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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934 (Amendment No.   )
Filed by the Registrant ☒
Filed by a Party other than the Registrant ☐
Check the appropriate box:

Preliminary Proxy Statement

Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

Definitive Proxy Statement

Definitive Additional Materials

Soliciting Material under §240.14a-12
Nabriva Therapeutics plc
(Name of Registrant as Specified in its Charter)
   
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check all boxes that apply):

No fee required.

Fee paid previously with preliminary materials.

Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11.

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PRELIMINARY PROXY MATERIALS — SUBJECT TO COMPLETION
[MISSING IMAGE: lg_nabriva-4c.jpg]
[           ], 2022
Dear Nabriva Therapeutics plc Shareholder:
You are cordially invited to our Annual General Meeting of Shareholders, or the AGM, on Thursday, August 11, 2022, beginning at 5:00 p.m. Irish time (12:00 p.m., Eastern Time), at 25-28 North Wall Quay, Dublin 1, Ireland. The enclosed notice of Annual General Meeting of Shareholders sets forth the proposals that will be presented at the meeting, which are described in more detail in the enclosed proxy statement.
In light of public health concerns related to COVID-19, the Company would like to emphasize that we consider the health of our shareholders, employees and other attendees a top priority. We are monitoring guidance issued by appropriate governmental health agencies, including the Irish Health Service Executive, or the HSE, the Irish government, the U.S. Centers for Disease Control and Prevention and the World Health Organization, which we refer to collectively as the Health Authorities, and we have implemented, and will continue to implement, the measures advised by the relevant Health Authorities to minimize the spread of COVID-19. The AGM will be held in accordance with HSE and relevant Health Authority guidance.
Shareholders’ contributions at the AGM are valued, however, shareholders are strongly encouraged to vote their shares by proxy as the preferred means of fully and safely exercising their rights. Personal attendance at the AGM may present a health risk to shareholders and others. In particular, we advise that shareholders who are experiencing any COVID-19 symptoms or anyone who has been in contact with any person experiencing any COVID-19 symptoms should not attend the AGM in person.
The Company may take additional procedures or limitations on meeting attendees, including limiting seating, requiring health screenings and other reasonable or required measures in order to enter the meeting venue.
In the event that a change of venue is necessitated due to public health recommendations regarding containment of COVID-19, which may include the closure of or restrictions on access to the meeting venue, we will communicate this to shareholders with as much notice as possible by press release (which we will also file with the U.S. Securities and Exchange Commission). We recommend that shareholders keep up-to-date with latest public health guidance regarding travel, self-isolation and health and safety precautions.
Our board of directors recommends that you vote “FOR” Proposals 1, 2, 3, 4 and 5, in each case, as set forth in the proxy statement.
Thank you for your ongoing support and continued interest in Nabriva Therapeutics.
Very truly yours,
/s/ Daniel Burgess
Daniel Burgess
Chairman of the Board of Directors
This proxy statement, the enclosed proxy card, our 2021 annual report to shareholders and our Irish Statutory Financial Statements for the year ended December 31, 2021 were first made available to shareholders on or about [           ], 2022.
 

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NABRIVA THERAPEUTICS PLC
25-28 North Wall Quay
Dublin 1, Ireland
NOTICE OF ANNUAL GENERAL MEETING OF SHAREHOLDERS
to be held on Thursday, August 11, 2022
The 2022 Annual General Meeting of Shareholders (the “AGM”) of Nabriva Therapeutics plc, an Irish public limited company (the “Company”), will be held on Thursday, August 11, 2022, beginning at 5:00 p.m., Irish time (12:00 p.m., Eastern Time), at 25-28 North Wall Quay, Dublin 1, Ireland. The AGM will be held to receive the Company’s Irish statutory financial statements for the fiscal year ended December 31, 2021 and the reports of the directors and auditors thereon, to review the affairs of the Company and to consider and vote upon the following matters:
1.
To elect, by separate resolutions, the nine director nominees named in this proxy statement to our board of directors to serve until the Company’s 2023 Annual General Meeting of Shareholders;
2.
To ratify, in a non-binding advisory vote, the selection of KPMG LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2022 and to authorize, in a binding vote, the board of directors, acting through the audit committee, to set the independent registered public accounting firm’s remuneration;
3.
To approve an amendment to the Nabriva Therapeutics plc 2020 Share Incentive Plan, as amended, to increase the number of ordinary shares authorized for issuance thereunder;
4.
To approve the Company’s named executive officer compensation on an advisory basis;
5.
To approve, subject to and conditional upon the board of directors determining, in its sole discretion, that a reverse stock split is necessary for the Company to comply with the minimum $1.00 per share requirement pursuant to Nasdaq Listing Rule 5450(a)(1) (the “Bid Price Rule”), a reverse stock split (i.e., a consolidation of share capital under Irish law) whereby such number of authorized and unissued and authorized and issued shares in the capital of the Company as the board of directors of the Company may determine that is not less than 10 ordinary shares and not more than 25 ordinary shares be consolidated into one ordinary share of such nominal value as is proportionate to the determined consolidation ratio, which nominal value shall not be less than $0.10 each (nominal value) and not more than $0.25 each (nominal value), and the subsequent reduction in the nominal value of the ordinary shares in the authorized and unissued and authorized and issued share capital of the Company from the aforementioned nominal value (as reflects the share consolidation ratio chosen by the board of directors) to $0.01 each; and
6.
To transact such other business as may properly come before the AGM or any adjournment or postponement thereof.
Proposals 1, 2, 3, 4 and 5 above are ordinary resolutions requiring a simple majority of the votes cast on the matter at the meeting to be approved. All proposals are more fully described in this proxy statement. There is no requirement under Irish law that the Company’s Irish Statutory Financial Statements for the fiscal year ended December 31, 2021, or the directors’ and auditor’s reports thereon be approved by the shareholders, and no such approval will be sought at the AGM.
Shareholders of record at the close of business on June 24, 2022 will be entitled to notice of and to vote at the AGM or any adjournment or postponement thereof.
Special Precautions Due to COVID-19 Concerns
In light of public health concerns related to COVID-19, the Company would like to emphasize that we consider the health of our shareholders, employees and other attendees a top priority. We are monitoring guidance issued by appropriate governmental health agencies, including the Irish Health Service Executive, or the HSE, the Irish government, the U.S. Centers for Disease Control and Prevention and the World Health Organization, which we refer to collectively as the Health Authorities, and we have implemented, and will
 

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continue to implement, the measures advised by the relevant Health Authorities to minimize the spread of COVID-19. The AGM will be held in accordance with HSE and relevant Health Authority guidance.
Shareholders’ contributions at the AGM are valued, however, shareholders are strongly encouraged to vote their shares by proxy as the preferred means of fully and safely exercising their rights. Personal attendance at the AGM may present a health risk to shareholders and others. In particular, we advise that shareholders who are experiencing any COVID-19 symptoms or anyone who has been in contact with any person experiencing any COVID-19 symptoms should not attend the AGM in person.
The Company may take additional procedures or limitations on meeting attendees, including limiting seating, requiring health screenings and other reasonable or required measures in order to enter the meeting venue.
In the event that a change of venue is necessitated due to public health recommendations regarding containment of COVID-19, which may include the closure of or restrictions on access to the meeting venue, we will communicate this to shareholders with as much notice as possible by press release (which we will also file with the U.S. Securities and Exchange Commission). We recommend that shareholders keep up-to-date with latest public health guidance regarding travel, self-isolation and health and safety precautions.
By order of the Board of Directors,
/s/ Daniel Burgess
Daniel Burgess
Chairman of the Board of Directors
Dublin, Ireland
[           ], 2022
YOU MAY OBTAIN ADMISSION TO THE AGM BY IDENTIFYING YOURSELF AT THE AGM AS A SHAREHOLDER AS OF THE RECORD DATE. IF YOU ARE A RECORD OWNER, POSSESSION OF A COPY OF A PROXY CARD WILL BE ADEQUATE IDENTIFICATION. IF YOU ARE A BENEFICIAL (BUT NOT RECORD) OWNER, A COPY OF AN ACCOUNT STATEMENT FROM YOUR BANK, BROKER OR OTHER NOMINEE SHOWING SHARES HELD FOR YOUR BENEFIT ON JUNE 24, 2022 WILL BE ADEQUATE IDENTIFICATION.
WHETHER OR NOT YOU EXPECT TO ATTEND THE AGM, PLEASE COMPLETE, DATE AND SIGN THE ENCLOSED PROXY CARD AND MAIL IT PROMPTLY IN THE ENCLOSED ENVELOPE TO HELP ENSURE REPRESENTATION OF YOUR SHARES AT THE AGM. NO POSTAGE NEED BE AFFIXED IF THE PROXY CARD IS MAILED IN THE UNITED STATES. ALTERNATIVELY, YOU MAY SUBMIT YOUR VOTE VIA THE INTERNET OR BY TELEPHONE BY FOLLOWING THE INSTRUCTIONS SET FORTH ON THE ENCLOSED PROXY CARD.
A SHAREHOLDER ENTITLED TO ATTEND AND VOTE AT THE AGM IS ENTITLED, USING THE PROXY CARD PROVIDED, TO APPOINT ONE OR MORE PROXIES TO ATTEND, SPEAK, VOTE AND TO DEMAND OR JOIN IN DEMANDING A POLL INSTEAD OF HIM OR HER AT THE AGM. A PROXY NEED NOT BE A SHAREHOLDER OF RECORD.
PURSUANT TO THE COMPANY’S CONSTITUTION, THE AGM MAY BE ADJOURNED IN CERTAIN CIRCUMSTANCES AT THE DISCRETION OF THE DULY ELECTED CHAIRPERSON OF THE AGM WHERE HE OR SHE DECIDES THAT IT IS NECESSARY OR APPROPRIATE TO DO SO, INCLUDING TO GIVE ALL PERSONS ENTITLED TO DO SO A REASONABLE OPPORTUNITY OF VOTING AT THE AGM.
 

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NABRIVA THERAPEUTICS PLC
25-28 North Wall Quay
Dublin 1, Ireland
PROXY STATEMENT FOR THE ANNUAL GENERAL MEETING OF SHAREHOLDERS TO BE HELD ON THURSDAY, AUGUST 11, 2022
Important Notice Regarding the Availability of Proxy Materials
for the Annual General Meeting of Shareholders
to be held on August 11, 2022
This proxy statement, our 2021 annual report to
shareholders and our Irish Statutory Financial Statements for the year
ended December 31, 2021 are available at www.proxyvote.com
for viewing, downloading and printing.
A copy of the Company’s Annual Report on Form 10-K for the year ended December 31, 2021 as filed with the Securities and Exchange Commission, or SEC, except for exhibits, and our Irish Statutory Financial Statements for the year ended December 31, 2021, which will be furnished without charge to any shareholder upon written or oral request to the Company at 25-28 North Wall Quay, Dublin 1, Ireland, Attention: Secretary, Telephone: (610) 816-6640.
Information about the AGM and Voting
This proxy statement is furnished in connection with the solicitation of proxies by the board of directors (the “board of directors” or the “board”) of Nabriva Therapeutics plc (the “Company,” “Nabriva,” “we” or “us”) for use at the 2022 Annual General Meeting of Shareholders (“Annual General Meeting” or the “AGM”) to be held on August 11, 2022, beginning at 5:00 p.m., Irish time (12:00 p.m., Eastern Time), at 25-28 North Wall Quay, Dublin 1, Ireland, and at any adjournment or postponement thereof. On June 24, 2022, the record date for the determination of shareholders entitled to vote at the AGM, there were issued, outstanding and entitled to vote an aggregate of 64,333,535 of our ordinary shares, nominal value $0.01 per share (“ordinary shares”). Each ordinary share entitles the record holder thereof to one vote on each of the matters to be voted on at the AGM.
Throughout this proxy statement, unless the context requires otherwise, all references to Nabriva Therapeutics plc, its board of directors, board committees, executive officers and directors, to its compensation and other policies, programs and reports on or prior to June 23, 2017 (the effective date of our Redomiciliation from Austria to Ireland), refer to those of our predecessor, Nabriva Therapeutics AG, together with its subsidiaries, which we refer to as Nabriva Austria.
Your vote is important no matter how many shares you own.   Please take the time to vote. Take a moment to read the instructions below. Choose the way to vote that is easiest and most convenient for you, and cast your vote as soon as possible.
If you are the “record holder” of your shares, meaning that you own your shares in your own name and not through a bank, broker or other nominee, you may vote in one of four ways:
(1)   You may vote over the Internet.   You may vote your shares by following the “Vote by Internet” instructions on the enclosed proxy card. If you vote by Internet, your use of that system, and specifically the entry of your control number/other unique identifier, will be deemed to constitute your appointment, in writing and under hand, and for all purposes of the Irish Companies Act of 2014, of each of Theodore Schroeder, Daniel Dolan and J. Christopher Naftzger, and/or each of their duly appointed substitutes if applicable, as your proxy to vote your shares on your behalf in accordance with your Internet instructions. The internet voting facilities for eligible shareholders of record will close at 4:59 a.m., Irish time, on the day of the AGM (11:59 p.m., Eastern Time, on the day prior to the AGM).
 
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(2)   You may vote by telephone.   You may vote your shares by following the “Vote by Phone” instructions on the enclosed proxy card. If you vote by telephone, you do not need to vote over the Internet or complete and mail your proxy card. If you vote by telephone, your use of that telephone system, and specifically the entry of your pin number/other unique identifier, will be deemed to constitute your appointment, in writing and under hand, and for all purposes of the Irish Companies Act of 2014, of each of Theodore Schroeder, Daniel Dolan and J. Christopher Naftzger, and/or each of their duly appointed substitutes if applicable, as your proxy to vote your shares on your behalf in accordance with your telephone instructions. The telephone voting facilities for eligible shareholders of record will close at 4:59 a.m., Irish time, on the day of the AGM (11:59 p.m., Eastern Time, on the day prior to the AGM).
(3)   You may vote by mail.   You may vote by completing, dating and signing the proxy card delivered with this proxy statement and promptly mailing it in the enclosed postage-paid envelope. If you vote by mail, you do not need to vote over the Internet or by telephone. We must receive the completed proxy card by August 10, 2022 to be counted.
(4)   You may vote in person.   If you attend the AGM, you may vote by delivering your completed proxy card in person or you may vote by completing a ballot at the AGM. Ballots will be available at the AGM.
All proxies that are executed and delivered by mail or in person, or are otherwise submitted over the Internet or by telephone will be voted on the matters set forth in the accompanying Notice of Annual General Meeting of Shareholders in accordance with the shareholders’ instructions. However, if no choice is specified on a proxy as to one or more of the proposals, the proxy will be voted in accordance with the board of directors’ recommendations on such proposals as set forth in this proxy statement. All proxies will be forwarded to the Company’s registered office electronically.
After you have submitted a proxy, you may still change your vote and revoke your proxy prior to the AGM by doing any one of the following things:

submitting a new proxy by following the “Vote by Internet” or “Vote by Phone” instructions on the enclosed proxy card at a date later than your previous vote but prior to the voting deadline (which is 4:59 a.m., Irish time, on the day of the AGM (11:59 p.m., Eastern Time, on the day prior to the AGM);

signing another proxy card and either arranging for delivery of that proxy card by mail by August 10, 2022, or by delivering that signed proxy card in person at the AGM;

sending our Secretary a written notice at Nabriva Therapeutics plc, 25-28 North Wall Quay, Dublin 1, Ireland, Attention: Secretary before or at the AGM that you want to revoke your proxy; or

voting in person at the AGM.
Your attendance at the AGM alone will not revoke your proxy.
If the shares you own are held in “street name” by a bank, broker or other nominee record holder, which we collectively refer to in this proxy statement as “brokerage firms,” your brokerage firm, as the record holder of your shares, is required to vote your shares according to your instructions. To vote your shares, you will need to follow the directions your brokerage firm provides you. Many brokerage firms also offer the option of voting over the Internet or by telephone, instructions for which, if available, would be provided by your brokerage firm on the voting instruction form that it delivers to you. Because most brokerage firms are member organizations of the New York Stock Exchange, or NYSE, the rules of the NYSE will likely govern how your brokerage firm would be permitted to vote your shares in the absence of instruction from you. Under the current rules of the NYSE, if you do not give instructions to your brokerage firm, it will still be able to vote your shares with respect to certain “discretionary” items, but will not be allowed to vote your shares with respect to certain “non-discretionary” items. The ratification of KPMG LLP as our independent registered public accounting firm and the authorization of the board of directors, acting through the audit committee, to set the independent registered public accounting firm’s remuneration (Proposal 2) and the approval, subject to and conditional upon our board of directors determining, in its sole discretion, that a reverse stock split is necessary for the Company to comply with the Bid Price Rule (as
 
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defined below under “Proposal 5: To Approve a Reverse Stock Split — Background to and Reasons for the Reverse Stock Split Proposal”), whereby such number of authorized and unissued and authorized and issued shares in the capital of the Company as the board of directors of the Company may determine that is not less than 10 and not more than 25 be consolidated into one ordinary share of such nominal value as is proportionate to the consolidation ratio and that shall be no less than $0.10 and not more than $0.25 each, and the subsequent reduction in the nominal value of the ordinary shares in the authorized and unissued and authorized and issued share capital of the Company to $0.01 each (the “Reverse Stock Split Proposal”) (Proposal 5) are discretionary items under the NYSE rules, and your brokerage firm will be able to vote on that item even if it does not receive instructions from you, so long as it holds your shares in its name. The election of the board of directors (Proposal 1), approval of the amendment to the Nabriva Therapeutics plc 2020 Share Incentive Plan, as amended (Proposal 3) and the advisory vote on the compensation of our named executive officers (Proposal 4) are “non-discretionary” items, meaning that if you do not instruct your brokerage firm on how to vote with respect to Proposals 1, 3, or 4, your brokerage firm will not vote with respect to that proposal and your shares will be counted as “broker non-votes.” “Broker non-votes” are shares that are held in “street name” by a brokerage firm that indicates on its proxy that it does not have or did not exercise discretionary authority to vote on a particular matter.
If your shares are held in street name, you must bring an account statement from your brokerage firm showing that you are the beneficial owner of the shares as of the record date (June 24, 2022) to be admitted to the AGM. To be able to vote your shares held in street name at the AGM, you will need to obtain a proxy card from the holder of record.
Votes Required
One or more Members (as defined in the Company’s constitution) whose name is entered in the register of members of the Company as a registered holder of the Company’s ordinary shares, present in person or by proxy (whether or not such Member actually exercises his voting rights in whole, in part or at all) holding not less than a majority of the issued and outstanding ordinary shares of the Company entitled to vote at the AGM, will constitute a quorum for the transaction of business at the AGM. Ordinary shares represented in person or by proxy (including “broker non-votes” ​(as described above) and shares which abstain or do not vote with respect to one or more of the matters presented for shareholder approval) will be counted for purposes of determining whether a quorum is present at the AGM. The following votes are required for approval of the proposals being presented at the AGM:
Proposal 1: To Elect the Board of Directors.   The affirmative vote of the holders of ordinary shares representing a majority of the votes cast on the matter and voting affirmatively or negatively is required for the election of a director nominee.
Proposal 2: To Ratify, in a Non-Binding Advisory Vote, the Selection of KPMG LLP as the Company’s Independent Registered Public Accounting Firm for the Fiscal Year Ending December 31, 2022 and to Authorize, in a Binding Vote, the Board of Directors, Acting Through the Audit Committee, to set the Auditor’s Remuneration.   The affirmative vote of the holders of ordinary shares representing a majority of the votes cast on the matter and voting affirmatively or negatively is required for the ratification of the selection of KPMG LLP as our independent registered public accounting firm for the current fiscal year and to authorize the board of directors, acting through the audit committee, to set the auditor’s remuneration.
Proposal 3: To Approve an Amendment to the Nabriva Therapeutics plc 2020 Share Incentive Plan, As Amended.   The affirmative vote of the holders of ordinary shares representing a majority of the votes cast on the matter and voting affirmatively or negatively is required for the approval of an amendment to the Nabriva Therapeutics plc 2020 Share Incentive Plan, as amended, increasing the number of ordinary authorized for issuance thereunder.
Proposal 4: Advisory Vote on Named Executive Officer Compensation.   This proposal calls for a non-binding, advisory vote, and accordingly there is no “required vote” that would constitute approval. Our board, including our compensation committee, values the opinions of our shareholders and, to the extent there are a substantial number of votes cast against the named executive officer compensation as disclosed in this proxy statement, we will consider our shareholders’ concerns and evaluate what actions may be appropriate to address those concerns.
 
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Proposal 5: To Approve a Reverse Stock Split.   The affirmative vote of the holders of ordinary shares representing a majority of the votes cast on the matter and voting affirmatively or negatively is required for the approval of the reverse stock split. The implementation of the reverse stock split is subject to and conditional upon our board of directors determining, in its sole discretion, that a reverse stock split is necessary for the Company to comply with the Bid Price Rule (with the consolidation ratio to be determined in the absolute discretion of our board of directors within the parameters described).
Shares that abstain from voting as to a particular matter and shares held in “street name” by brokerage firms who indicate on their proxies that they do not have discretionary authority to vote such shares as to a particular matter will not be counted as votes in favor of such matter, and will also not be counted as shares voting on such matter. Accordingly, abstentions and “broker non-votes” will have no effect on the voting on the proposals referenced above.
Presentation
We have not adjusted any of the amounts in this proxy statement to reflect the effect of the proposed Reverse Stock Split described in Proposal 5 of this proxy statement. If the Reverse Stock Split Proposal is implemented, the number of our authorized and unissued and authorized and issued ordinary shares will be reduced at a ratio to be determined by our board of directors within a range of 1-for-10 and 1-for-25 ordinary shares. For a more detailed summary of the proposed Reverse Stock Split, please refer to Proposal 5 of this proxy statement.
Proxy Solicitor
We have retained Georgeson LLC, or Georgeson, to assist in soliciting proxies on our behalf, which they may conduct by personal interview, mail, telephone, facsimile, email, other electronic channels of communication or otherwise. We have agreed to pay Georgeson a fee of $9,500 plus expenses for these services. In addition, we have agreed to indemnify Georgeson against losses arising out of its provisions of these services on our behalf. We have paid and expect to pay other costs of soliciting votes in connection with this proxy statement.
If shareholders need assistance with casting or changing their vote, they may contact Georgeson for assistance at +1-866-203-9401.
 
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CORPORATE GOVERNANCE
Board of Directors
Set forth below are the names and certain biographical information about each member of our board of directors and their ages as of June 24, 2022.
All current members of the board of directors are standing for election at the AGM. Each director was elected by our shareholders at the 2021 Annual General Meeting. The information presented includes each director’s principal occupation and business experience for at least the past five years and the names of other public companies of which he or she has served as a director during the past five years, if any. We believe that all of our directors possess the attributes and characteristics described in “— Board Processes — Director Nomination Process.” There are no family relationships between or among any of our executive officers or directors.
Name
Age
Position
Daniel Burgess(1)(3)
60
Director, Chairman of the Board
Theodore Schroeder
67
Director, Chief Executive Officer
Colin Broom, MD
66
Director
Carrie Bourdow(2)(3)
59
Director
Mark Corrigan(1)
64
Director
Lisa Dalton(2)
49
Director
Steven Gelone
54
Director, President and Chief Operating Officer
Charles A. Rowland, Jr.(2)
63
Director
Stephen Webster(1)(3)
61
Director
(1)
Member of the audit committee.
(2)
Member of the compensation committee.
(3)
Member of the nominating and corporate governance committee.
Daniel Burgess has served on our board of directors since June 2017. Mr. Burgess was a member of the supervisory board of Nabriva Austria and served as its chairman from October 2016 until the Redomiciliation to Ireland. Mr. Burgess has been a venture partner at SV Health Investors (SV) since 2014. Mr. Burgess is currently the chairman of the board and chief executive officer of Pulmocide Ltd., a private biopharmaceutical company, a position he has held since May 2021. Mr. Burgess served as the part-time president and chief executive officer of Therini Bio, Inc., a private therapeutics company, from May 2019 to December 2021. He was previously president and chief executive officer of Rempex Pharmaceuticals, an antibiotics company he co-founded in 2011 and that was subsequently sold to The Medicines Company (now Novartis AG) in 2013. Prior to this, Mr. Burgess was president and chief executive officer of Mpex Pharmaceuticals from 2007 until its acquisition by Aptalis Inc. (now AbbVie Inc.) in 2011. Prior to his time at Mpex, Mr. Burgess served in various senior operating roles for other biotechnology companies. In addition, he serves as a member of the boards of directors of Cidara Therapeutics, Inc., a public biotechnology company; Arbutus Biopharma Corp., a public biotechnology company; and several private healthcare companies. Mr. Burgess was a member of the board of directors of Santarus, Inc., from 2004 until its acquisition in 2014 by Salix Pharmaceuticals Inc., a publicly traded pharmaceutical company. He received his B.A. in economics from Stanford University and an M.B.A. from Harvard University. We believe Mr. Burgess is qualified to serve as a director because of his expertise and experience as an executive in the pharmaceutical industry, his service on other boards of directors and his educational background.
Theodore Schroeder has served on our board of directors and as chief executive officer since July 2018. During the last 30 years, Mr. Schroeder has been focused on drug development and commercialization in both large and small pharmaceutical companies. Most recently, he served as president, chief executive officer and director of Zavante Therapeutics from June 2015 until its acquisition by Nabriva Therapeutics in July 2018. Mr. Schroeder co-founded Cadence Pharmaceuticals in 2004 and previously held leadership roles
 
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at Elan Pharmaceuticals, Dura Pharmaceuticals and earlier in his career, Bristol-Myers Squibb. He currently serves on the board of Cidara Therapeutics, and Otonomy, Inc. and formerly was a member of the board of Collegium Pharmaceutical. He is a former chair of BIOCOM, the California life sciences trade association and in 2014, he was named the EY Entrepreneur of the Year for the San Diego region and was listed as a national finalist. He received a bachelor’s degree in management from Rutgers University. We believe Mr. Schroeder is qualified to serve as a director because of his expertise and experience as an executive in the pharmaceutical industry, his service on other boards of directors and his educational background.
Colin Broom has served on our board of directors since June 2017. Dr. Broom has served as the chief executive officer and a member of the board of directors of Pulmotect, Inc., a private biotechnology company, since September 2019. Dr. Broom was previously our chief executive officer from April 12, 2017 until July 24, 2018, and the chief executive officer of Nabriva Austria from August 2014 until the Redomiciliation to Ireland. Prior to joining Nabriva Austria, he served as chief scientific officer at ViroPharma Incorporated from 2004 until it was acquired by Shire plc in 2014. Dr. Broom served as vice president of clinical development and medical affairs in Europe for Amgen Inc. from 2000 to 2003 and previously held several leadership positions with Hoechst Marion Roussel (now Sanofi), SmithKline Beecham and Glaxo (now GlaxoSmithKline). Dr. Broom served as a member of the board of directors of NPS Pharmaceuticals, Inc. from 2009 until its acquisition by Shire in 2015. He is a member of the U.K. Royal College of Physicians and a fellow of the Faculty of Pharmaceutical Medicine. Dr. Broom received his B.Sc. from University College, London and M.B.B.S. from St. George’s Hospital Medical School, London. We believe that Dr. Broom is qualified to serve as a director due to his extensive experience in all stages of drug development and commercialization.
Carrie Bourdow has served on our board of directors since June 2017. Ms. Bourdow has been the president, the chief executive officer, and member of the board of directors of Trevena, Inc., a publicly-traded biopharmaceutical company, since October 2018. She has served in various senior positions at Trevena since May 2015. She joined Trevena as chief commercial officer and was appointed executive vice president and chief operating officer in January 2018. Prior to joining Trevena, Ms. Bourdow was vice president of marketing at Cubist Pharmaceuticals, Inc., from 2013 until its acquisition by Merck & Co., Inc. in January 2015. At Cubist, Ms. Bourdow led launch strategy, marketing, reimbursement, and operations for acute care hospital pharmaceuticals. Prior to Cubist, Ms. Bourdow served for more than 20 years at Merck & Co., Inc., where she held positions of increasing responsibility across multiple therapeutic areas. Ms. Bourdow also serves as a director of Sesen Bio, Inc., a publicly traded pharmaceutical company. Ms. Bourdow holds a B.A. degree from Hendrix College and an M.B.A. from Southern Illinois University. We believe Ms. Bourdow is qualified to serve as a director due to her extensive experience in the biopharmaceutical industry, including her experience with anti-infectives and with the commercialization of new drugs.
Mark Corrigan has served on our board of directors since June 2021. Dr. Corrigan previously served on our board of directors from June 23, 2017 to May 26, 2020, and prior to the Redomiciliation to Ireland, Dr. Corrigan served on the supervisory board of Nabriva Austria from October 2016 until the Redomiciliation to Ireland. Dr. Corrigan was most recently the chief executive officer of Correvio Pharma Corporation (formerly Cardiome Pharma), a public biopharmaceutical company, from March 2019 until May 2021. From April 2016 until March 2019, Dr. Corrigan was founder and president of research and development of Tremeau Pharmaceuticals. Dr. Corrigan served as president and chief executive officer of Zalicus, Inc. from January 2010 until July 2014. Previously, Dr. Corrigan was executive vice president of research and development at the specialty pharmaceutical company Sepracor Inc., and prior to this, he spent 10 years with Pharmacia & Upjohn, most recently as group vice president of Global Clinical Research and Experimental Medicine. Dr. Corrigan currently serves on the boards of directors of Wave Biosciences, a public biopharmaceutical company, Tremeau Pharmaceuticals, a private company, and Exacis BioTherapeutics, a private biopharmaceutical company. He previously served on the boards of directors of Correvio Pharma Corporation, Novelin Therapeutics, Inc., BlackThorn Therapeutics, Inc., Cubist Pharmaceuticals, Inc., CoLucid Pharmaceuticals, Inc., Avanair Pharmaceuticals, Inc., and EPIRUS Biopharmaceuticals, Inc., where he served as chairman of the board of directors. Dr. Corrigan holds an M.D. from the University of Virginia and received specialty training in psychiatry at Maine Medical Center and Cornell University. We believe Dr. Corrigan is qualified to serve as a director due to his extensive
 
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experience in the biopharmaceutical industry as both an executive and a board member and because of his education and training.
Lisa Dalton has served on our board of directors since June 2021. Ms. Dalton has served as the chief people officer at Spark Therapeutics, a member of the Roche Group, since July 2014. She previously served as vice president, human resources at Shire. Ms. Dalton received her M.B.A. from Rutgers University School of Business and B.A. from Pennsylvania State University. We believe Ms. Dalton is qualified to serve as a director because of her expertise and experience as an executive in the pharmaceutical industry.
Steven Gelone has served on our board of directors since March 2021 and as our president and chief operating officer since July 24, 2018. Dr. Gelone previously served as Nabriva Austria’s chief development officer and head of business development from 2014 until the Redomiciliation to Ireland, our chief development officer from the Redomiciliation to Ireland until June 30, 2017 and our chief scientific officer from June 30, 2017 until July 24, 2018. Prior to joining Nabriva Austria, he served as head of clinical research and development at Spark Therapeutics, Inc. in 2014 and vice president of clinical and preclinical development at ViroPharma Incorporated from 2005 to 2014. Dr. Gelone also served as director of medical affairs at Vicuron Pharmaceuticals from 2002 to 2003 and director of clinical pharmacology and experimental medicine at GlaxoSmithKline Pharmaceuticals from 2000 to 2002. Dr. Gelone received his B.S. Pharm. and Pharm.D. from Temple University. We believe Dr. Gelone is qualified to serve as a director due to his extensive experience in the biopharmaceutical industry as an executive and because of his education and training.
Charles A. Rowland, Jr. has served on our board of directors since June 2017. Mr. Rowland previously served on the supervisory board of Nabriva Austria from January 2015 until the Redomiciliation to Ireland. Mr. Rowland served as chief executive officer of Aurinia Pharmaceuticals Inc. from April 2016 to January 2017. Mr. Rowland previously served as vice president and chief financial officer of ViroPharma Incorporated from 2008 until it was acquired by Shire plc in 2014. Prior to joining ViroPharma, Mr. Rowland served as executive vice president and chief financial officer, as well as interim co-chief executive officer, for Endo Pharmaceuticals Inc. from 2006 to 2008 and chief financial officer at Biovail Corporation from 2004 to 2006. He previously held finance and operational positions of increasing responsibility at Breakaway Technologies, Inc., Pharmacia, Novartis International AG and Bristol-Myers Squibb Company. Mr. Rowland currently serves as a member of the board of directors for Viking Therapeutics, a public, clinical-stage biopharmaceutical company, and Orchard Therapeutics, a public, clinical-stage biopharmaceutical company. In addition, Mr. Rowland serves as a member of the board of directors for Generation Bio, a public biopharmaceutical company. Previously, he served on the board of directors at Blueprint Medicines Corporation, Idenix Pharmaceuticals, Inc., Vitae Pharmaceuticals, Inc., Bind Therapeutics Inc. and Aurinia Pharmaceuticals Inc. Mr. Rowland received his B.S. from Saint Joseph’s University and M.B.A. from Rutgers University. We believe that Mr. Rowland is qualified to serve as a director due to his extensive experience in pharmaceutical operations and all areas of finance and accounting.
Stephen Webster has served on our board of directors since June 2017. Mr. Webster previously served on the supervisory board of Nabriva Austria from October 2016 until the Redomiciliation to Ireland. Mr. Webster served as the chief financial officer of Spark Therapeutics from July 2014 until its acquisition by Roche Holdings, Inc. in December 2019. He was previously senior vice president and chief financial officer of Optimer Pharmaceuticals, Inc. from June 2012 until its acquisition by Cubist Pharmaceuticals in November 2013. Prior to this, Mr. Webster served as senior vice president and chief financial officer of Adolor Corporation, also acquired by Cubist, from 2008 to 2011. Previously, Mr. Webster served as managing director, Investment Banking Division, Health Care Group for Broadpoint Capital Inc. (formerly First Albany Capital) . He also was a co-founder and served as president and chief executive officer of Neuronyx, Inc. Prior to this, Mr. Webster held positions of increasing responsibility, including as director, Investment Banking Division, Health Care Group, for PaineWebber Incorporated. Mr. Webster is currently a member of the board of directors of TCR2 Therapeutics, Inc., Cullinan Oncology, Inc., and NextCure, Inc. He was a member of the board of directors of Viking Therapeutics, Inc., a public biopharmaceutical company, from 2014 to 2020. Mr. Webster holds an A.B. in economics from Dartmouth College and an M.B.A. from the University of Pennsylvania. We believe that Mr. Webster is qualified to serve as a director due to his extensive experience in the biopharmaceutical industry, particularly his service as a chief financial officer and in other executive management roles.
 
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Board Composition
Our articles of association provide that the number of directors on our board will be not less than two and not more than twelve, with the exact number determined by the board. Our board of directors is currently authorized for nine members. Our directors hold office for a term continuing until the next annual general meeting of shareholders or until the earlier of their resignation or removal.
Our articles of association provide that the authorized number of directors may be changed only by resolution of our board of directors. Under the Irish Companies Act of 2014, and notwithstanding anything contained in our articles of association or in any agreement between us and a director, our shareholders may, by an ordinary resolution, remove a director from office before the expiration of his or her term at a meeting held on no less than 28 days’ notice and at which the director is entitled to be heard. Our articles of association also provide that the office of a director will be vacated in certain circumstances including if the director is restricted or disqualified to act as a director under the Irish Companies Act of 2014, resigns his or her office by notice in writing, or is requested to resign in writing by not less than a majority of the other directors. Our board of directors may fill any vacancy occurring on the board of directors. If the board of directors fills a vacancy, the director shall hold office until the next election of directors and until his or her successor shall be elected.
Board Determination of Independence
Applicable Nasdaq rules require a majority of a listed company’s board of directors to be comprised of independent directors within one year of listing. In addition, the Nasdaq rules require that, subject to specified exceptions, each member of a listed company’s audit, compensation and nominating and corporate governance committees be independent under the Securities Exchange Act of 1934, as amended, or the Exchange Act. Audit committee members must also satisfy the independence criteria set forth in Rule 10A-3 under the Exchange Act, and compensation committee members must also satisfy the independence criteria set forth in Rule 10C-1 under the Exchange Act. Under applicable Nasdaq rules, a director will only qualify as an “independent director” if, in the opinion of the listed company’s board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. To be considered independent for purposes of Rule 10A-3, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the board of directors, or any other board committee, accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries or otherwise be an affiliated person of the listed company or any of its subsidiaries. In order to be considered independent for purposes of Rule 10C-1, the board must consider, for each member of a compensation committee of a listed company, all factors specifically relevant to determining whether a director has a relationship to such company which is material to that director’s ability to be independent from management in connection with the duties of a compensation committee member, including, but not limited to: (1) the source of compensation of the director, including any consulting, advisory or other compensatory fee paid by such company to the director; and (2) whether the director is affiliated with the company or any of its subsidiaries or affiliates.
In April 2022, our board of directors undertook a review of the independence of each director. Based upon information requested from and provided by each director concerning his or her background, employment and affiliations, including family relationships, our board has determined that each of our directors, with the exception of Colin Broom, Steven Gelone and Theodore Schroeder, is an “independent director” as defined under applicable Nasdaq rules, including, in the case of all the members of our audit committee, the independence criteria set forth in Rule 10A-3 under the Exchange Act, and in the case of all the members of our compensation committee, the independence criteria set forth in Rule 10C-1 under the Exchange Act. In making such determination, our board considered the relationships that each such director has with us, including each of the transactions described below in “— Board Policies — Related Person Transactions — Certain Relationships and Related Transactions,” and all other facts and circumstances that our board deemed relevant in making such independence determinations. Mr. Schroeder is not an independent director because he is our chief executive officer. Dr. Gelone is not an independent director because he is our president and chief operating officer, and Dr. Broom is not an independent director because he was previously employed as our chief executive officer.
 
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How Our Board Is Organized
Board Leadership Structure
Mr. Burgess serves as chairman of our board of directors and Mr. Schroeder serves as our chief executive officer. We believe that having an independent director serve as our chairman allows our chief executive officer to focus on our business, while allowing the chairman of the board to fulfill a fundamental leadership role of providing advice to and independent oversight of our board.
Our chief executive officer devotes a substantial amount of time and effort to his position. The chairman of the board role requires significant additional commitment, particularly as the board’s oversight responsibilities continue to grow. Our board is committed to practicing good corporate governance and believes that having an independent non-executive director serving as chairman is the appropriate leadership structure for the Company. The nominating and corporate governance committee periodically assesses the board’s leadership structure and whether the board’s leadership structure is appropriate given the specific characteristics or circumstances of the Company at that time.
Board Diversity
In accordance with Nasdaq’s Board Diversity Rule, we have elected to include our board diversity matrix in this proxy statement as set forth below:
Board Diversity Matrix (As of June 29, 2022)
Total Number of Directors
9
Female
Male
Non-Binary
Did Not
Disclose
Gender
Part I: Gender Identity
Directors
2 7
Part II: Demographic Background
African American or Black
Alaskan Native or Native American
Asian
Hispanic or Latinx
Native Hawaiian or Pacific Islander
White
2 7
Two or More Races or Ethnicities
LGBTQ+
Did Not Disclose Demographic Background
Board Committees
Our board of directors has established an audit committee, a compensation committee and a nominating and corporate governance committee, each of which operates under a charter that has been approved by our board. Copies of the committee charters are posted under the heading “Corporate Governance” on the Investor section of our website, which is located at http://investors.nabriva.com.
Audit Committee
Our audit committee consists of Mark Corrigan, Daniel Burgess and Stephen Webster, and Stephen Webster is the chair of the audit committee. The audit committee oversees our accounting and financial reporting processes and the audits of our consolidated financial statements. The audit committee is responsible for, among other things:

making recommendations to our board regarding the ratification by the annual general meeting of shareholders of our independent auditors;
 
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overseeing the work of the independent auditors, including resolving disagreements between management and the independent auditors relating to financial reporting;

pre-approving all audit and non-audit services permitted to be performed by the independent auditors;

reviewing the independence and quality control procedures of the independent auditors;

reviewing and approving all proposed related-party transactions;

discussing the annual audited consolidated and statutory financial statements with management;

annually reviewing and reassessing the adequacy of our audit committee charter;

meeting separately with the independent auditors to discuss critical accounting policies, recommendations on internal controls, the auditor’s engagement letter and independence letter and other material written communications between the independent auditors and the management; and

attending to such other matters as are specifically delegated to our audit committee by our board from time to time.
Our board of directors has determined that Stephen Webster is an “audit committee financial expert” as defined in the applicable SEC rules.
Our audit committee met five times in 2021.
Compensation Committee
Our compensation committee consists of Carrie Bourdow, Lisa Dalton and Charles A. Rowland, Jr., and Charles A. Rowland, Jr. is the chair of the compensation committee. The compensation committee assists the board in reviewing and approving or recommending our compensation structure, including all forms of compensation relating to our directors and management. The compensation committee is responsible for, among other things:

reviewing and making recommendations to the board with respect to compensation of our board of directors and management;

reviewing and approving the compensation, including equity compensation, change-of-control benefits and severance arrangements, of our chief executive officer, chief financial officer and such other members of our management as it deems appropriate;

overseeing the evaluation of our management;

reviewing periodically and making recommendations to our board with respect to any incentive compensation and equity plans, programs or similar arrangements;

exercising the rights of our board under any equity plans, except for the right to amend any such plans unless otherwise expressly authorized to do so; and

attending to such other matters as are specifically delegated to our compensation committee by our board from time to time.
Our compensation committee met five times in 2021. The compensation committee may form and delegate authority to one or more subcommittees as it deems appropriate from time to time under the circumstances (including (a) a subcommittee consisting of a single member and (b) a subcommittee consisting of at least two members, each of whom qualifies as a “non-employee director,” as such term is defined from time to time in Rule 16b-3 promulgated under the Exchange Act and the rules and regulations thereunder).
Nominating and Corporate Governance Committee
Our nominating and corporate governance committee consists of Daniel Burgess, Carrie Bourdow and Stephen Webster, and Daniel Burgess is the chair of the nominating and corporate governance committee. The nominating and corporate governance committee assists the board in selecting individuals qualified to
 
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become our directors and in determining the composition of the board and its committees. The nominating and corporate governance committee is responsible for, among other things:

recommending to the board persons to be nominated for election or re-election to the board at any meeting of shareholders;

overseeing the board’s annual review of its own performance and the performance of its committees; and

developing and recommending to the board a set of corporate governance guidelines.
Our nominating and corporate governance committee met four times in 2021.
Board Meetings and Attendance
Our board of directors met eight times in 2021. During 2021, each director attended at least 75% of the aggregate of the number of (1) board meetings held (during the period that such person served as a director), and (2) meetings held by all committees of the board on which such person served (during the periods that such person served). Our directors are expected to attend our annual general meeting of shareholders. In July 2021, all of our then-current directors attended the Annual General Meeting of Shareholders.
Board Processes
Oversight of Risk
Our board of directors oversees our risk management processes directly and through its committees. Our management is responsible for risk management on a day-to-day basis. The role of our board and its committees is to oversee the risk management activities of management. They fulfill this duty by discussing with management the policies and practices utilized by management in assessing and managing risks and providing input on those policies and practices. In general, our board oversees risk management activities relating to business strategy, acquisitions, capital raising and allocation, organizational structure and certain operational risks; our audit committee oversees risk management activities related to financial controls and legal and compliance risks; our nominating and corporate governance committee oversees risk management activities relating to board composition; and our compensation committee oversees risk management activities relating to our compensation policies and practices and management succession planning. Each committee reports to the full board on a regular basis, including reports with respect to the committee’s risk oversight activities as appropriate. In addition, since risk issues often overlap, committees from time to time request that the full board discuss such risks.
Director Nomination Process
The process followed by our nominating and corporate governance committee to identify and evaluate director candidates may include requests to directors and others for recommendations, evaluation of the performance on our board and its committees of any existing directors being considered for nomination, consideration of biographical information and background material relating to potential candidates and, particularly in the case of potential candidates who are not then serving on our board, interviews of selected candidates by members of the committee and our board.
In considering whether to recommend any candidate for inclusion in our board’s slate of recommended director nominees, our nominating and corporate governance committee applies the criteria set forth in our corporate governance guidelines described below under “— Corporate Governance Guidelines”. Consistent with these criteria, our nominating and corporate governance committee expects every nominee to have the following attributes or characteristics, among others: integrity, honesty, adherence to high ethical standards, business acumen, good judgment and a commitment to understand our business and industry.
The nominating and corporate governance committee did not engage a search firm to identify and evaluate potential director candidates in 2021.
 
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All of the director nominees are currently members of our board of directors. The nominee biographies under “— Board of Directors” indicate the experience, qualifications, attributes and skills of each of our current directors that led our nominating and corporate governance committee and our board to conclude such director should continue to serve as one of our directors. Our nominating and corporate governance committee and our board believe that each of the nominees has the individual attributes and characteristics required of each of our directors, and that the nominees as a group possess the skill sets and specific experience desired for our board.
Our nominating and corporate governance committee considers the value of diversity when selecting nominees, and believes that our board, taken as a whole, should embody a diverse set of skills, experiences and backgrounds. While our nominating and corporate governance committee does not assign any particular weighting to diversity or any other characteristic, the committee and our board of directors take diversity into consideration, including with respect to gender, race and national origin, in evaluating nominees and directors. Our nominating and corporate governance committee’s and our board of directors’ priority in selecting board members is identification of persons who will further the interests of our shareholders.
Shareholders may recommend individuals for consideration as potential director candidates by submitting their names, together with appropriate biographical information and background materials, and information with respect to the shareholder or group of shareholders making the recommendation, including the number of ordinary shares owned by such shareholder or group of shareholders, to us at Nabriva Therapeutics plc, 25-28 North Wall Quay, Dublin 1, Ireland, Attention: Secretary. The specific requirements for the information that is required to be provided for such recommendations to be considered are specified in our articles of association and must be received by us no later than the date referenced below in “Other Matters — Deadline for Submission of Shareholder Proposals for 2023 Annual General Meeting of Shareholders.” Assuming appropriate biographical and background material has been provided on a timely basis, the nominating and corporate governance committee will evaluate shareholder-recommended candidates by following substantially the same process, and applying substantially the same criteria, as it follows for nominees proposed by the nominating and corporate governance committee.
Communications with Our Directors
Our board of directors will give appropriate attention to written communications that are submitted by shareholders and will respond if and as appropriate. The chairman of the board, or otherwise the chair of the nominating and corporate governance committee, is primarily responsible for monitoring communications from shareholders and other interested parties and provides copies or summaries of such communications to the other directors as he considers appropriate. Shareholders who wish to communicate with our board of directors may do so by addressing such communications to Board of Directors, c/o Secretary, Nabriva Therapeutics plc, 25-28 North Wall Quay, Dublin 1, Ireland. Communications will be forwarded to other directors if they relate to substantive matters that the chairman of the board or chair of the nominating and corporate governance committee considers appropriate for attention by the other directors.
Corporate Governance Guidelines
Our board of directors has adopted corporate governance guidelines to assist in the exercise of its duties and responsibilities and to serve the best interests of the Company and its shareholders. The guidelines provide that:

our board’s principal responsibility is to oversee the management of the Company;

a majority of the directors must be independent directors;

the independent directors meet in executive session at least twice a year;

directors have full and free access to management and, as necessary, independent advisors;

new directors participate in an orientation program; and

our board will conduct a periodic self-evaluation to determine whether it and its committees are functioning effectively.
 
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A copy of the corporate governance guidelines is posted under the heading “Corporate Governance” on the Investor Relations section of our website, which is located at http://investors.nabriva.com.
Board Policies
Related Person Transactions
Our board of directors has adopted written policies and procedures for the review of any transaction, arrangement or relationship in which the Company is a participant, the amount involved exceeds the lesser of $120,000 and one percent of the average of the our total assets at year-end for the last two completed fiscal years and one of our executive officers, directors, director nominees or 5% shareholders, or their immediate family members, each of whom we refer to as a “related person,” has a direct or indirect material interest.
If a related person proposes to enter into such a transaction, arrangement or relationship, which we refer to as a “related person transaction,” the related person must report the proposed related person transaction to our chief financial officer or general counsel. The policy calls for the proposed related person transaction to be reviewed and, if deemed appropriate, approved by our audit committee. Whenever practicable, the reporting, review and approval will occur prior to entry into the transaction. If advance review and approval is not practicable, the committee will review, and, in its discretion, may ratify the related person transaction. The policy also permits the chair of the audit committee to review and, if deemed appropriate, approve proposed related person transactions that arise between committee meetings, subject to ratification by the committee at its next meeting. Any related person transactions that are ongoing in nature will be reviewed annually.
A related person transaction reviewed under the policy will be considered approved or ratified if it is authorized by the audit committee after full disclosure of the related person’s interest in the transaction. As appropriate for the circumstances, the audit committee will review and consider:

the related person’s interest in the related person transaction;

the approximate dollar value of the amount involved in the related person transaction;

the approximate dollar value of the amount of the related person’s interest in the transaction without regard to the amount of any profit or loss;

whether the transaction was undertaken in the ordinary course of our business;

whether the terms of the transaction are no less favorable to us than terms that could have been reached with an unrelated third party;

the purpose of, and the potential benefits to us of, the transaction; and

any other information regarding the related person transaction or the related person in the context of the proposed transaction that would be material to investors in light of the circumstances of such transaction.
Our audit committee may approve or ratify the transaction only if it determines that, under all of the circumstances, the transaction is in our best interests. Our audit committee may impose any conditions on the related person transaction that it deems appropriate.
In addition to the transactions that are excluded by the instructions to the SEC’s related person transaction disclosure rule, our board of directors has determined that the following transactions do not create a material direct or indirect interest on behalf of related persons and, therefore, are not related person transactions for purposes of this policy:

interests arising solely from the related person’s position as an executive officer of another entity, whether or not the person is also a director of the entity, that is a participant in the transaction where the related person and all other related persons own in the aggregate less than a 10% equity interest in such entity, the related person and his or her immediate family members are not involved in the negotiation of the terms of the transaction and do not receive any special benefits as a result of
 
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the transaction and the amount involved in the transaction is less than the greater of $200,000 or 5% of the annual gross revenues of the Company receiving payment under the transaction; and

a transaction that is specifically contemplated by provisions of our constitution.
The policy provides that transactions involving compensation of our executive officers shall be reviewed and approved by our compensation committee in the manner specified in the compensation committee’s charter.
In addition, under our Code of Business Conduct and Ethics, our directors, executive officers and employees have an affirmative responsibility to disclose any transaction or relationship that reasonably could be expected to give rise to a conflict of interest.
Certain Relationships and Related Transactions
Since January 1, 2020, we have engaged in the following transactions with our executive officers, directors and holders of more than 5% of our voting securities, and affiliates of our executive officers, directors and 5% shareholders. We believe that all of the transactions described below were made on terms no less favorable to us than could have been obtained from unaffiliated third parties:
Consulting Agreement with Sender Consulting LLC
On March 9, 2021, Sender Consulting LLC, a single-member limited liability company of which Gary Sender, our former chief financial officer, is the principal, entered into a two-year consulting agreement with us, effective March 15, 2021, to provide financially-related advice and actively manage projects as requested. In addition to an hourly service fee, Mr. Sender was entitled to receive an award of 7,000 RSUs as of the effective date of the consulting agreement, which vests as to 50% of the shares underlying the RSUs each year over the term of the consulting agreement.
Consulting Agreement with Jennifer Schranz
On May 3, 2021, we entered into a two-year consulting agreement with Jennifer Schranz, our former chief medical officer. Pursuant to the consulting agreement, Dr. Schranz has agreed to provide expert scientific advisory services to us in connection with the advancement of our pipeline programs and product candidates in consideration for our agreement to forego the repayment of any and all amounts owed by Dr. Schranz to us pursuant her retention agreement following her resignation from the company on March 19, 2021. In addition, Dr. Schranz received an award of 7,000 RSUs as of the date of the consulting agreement, which vests as to 50% of the shares underlying the RSUs on each annual anniversary of the consulting agreement over two years.
June 2020 Financing
In June 2020, we entered into a securities purchase agreement with certain institutional investors pursuant to which we agreed to issue and sell in a registered direct offering an aggregate of 4,144,537 ordinary shares and accompanying warrants to purchase up to an aggregate of 4,144,537 ordinary shares. Each share in the offering was issued and sold together with an accompanying warrant at a combined price of $9.1686. Each warrant had an exercise price of $7.92 per share, was immediately exercisable following the date of issuance and expired on the two-year anniversary of the date of issuance. In connection with such offering, entities affiliated with Fidelity Management & Research Company LLC, a then-beneficial owner of more than 5% of our voting securities, purchased an aggregate of 872,498 ordinary shares and accompanying warrants to purchase up to 872,498 ordinary shares at a purchase price of $9.1686 per ordinary share and accompanying warrant for an aggregate purchase price of $7,999,601.
Code of Business Conduct and Ethics
Our Code of Business Conduct and Ethics is applicable to all of our directors, officers and employees and is available on our website at http://investors.nabriva.com/corporate-governance/governance-overview. Our Code of Business Conduct and Ethics provides that our directors, officers and employees are expected to avoid any action, position or interest that conflicts with the interests of our company or gives the appearance
 
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of a conflict. We expect that any amendment to this code, or any waivers of its requirements, will be disclosed on our website. Information contained on, or that can be accessed through, our website is not incorporated by reference into this document, and you should not consider information on our website to be part of this document.
Anti-Hedging Policy
Our board of directors has adopted an insider trading policy, which applies to all of our directors and employees, including our executive officers, and certain of their family members and any entities controlled by such persons. The policy prohibits (i) pledging of our securities, including purchasing our securities on margin, margin accounts and pledges as collateral for a loan (except in extraordinary situations where a person wishes to pledge company securities as collateral for a loan (other than a margin loan) and clearly demonstrates the financial capacity to repay the loan without resort to the pledged securities) and engaging in the following transactions in our securities: short sales, including short sales “against the box”; purchases or sales of puts, calls or other derivative securities; or purchases of financial instruments (including prepaid variable forward contracts, equity swaps, collars and exchange funds) or other transactions that hedge or offset, or are designed to hedge or offset, any decrease in the market value of our securities.
 
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EXECUTIVE OFFICERS
The following table sets forth information regarding our executive officers and their ages as of June 24, 2022:
Name
Age
Position
Theodore Schroeder
67
Chief Executive Officer
J. Christopher Naftzger
55
General Counsel and Secretary
Daniel Dolan
45
Chief Financial Officer
Steven Gelone
54
President and Chief Operating Officer
Christine Guico-Pabia
59
Chief Medical Officer
In addition to the biographical information for Mr. Schroeder and Dr. Gelone, which is set forth above under “— Board of Directors,” set forth below is certain biographical information about Messrs. Naftzger and Dolan and Dr. Guico-Pabia.
J. Christopher Naftzger has served as our general counsel and secretary since September 1, 2021. Previously, Mr. Naftzger served as General Counsel and Corporate Secretary of Krystal Biotech, an emerging-stage, gene therapy company, from February 2020 to May 2021. Before joining Krystal, he was Vice President, Deputy General Counsel and Assistant Secretary of Nabriva Therapeutics from January 2017 to January 2020. Prior to Nabriva, Mr. Naftzger served as Vice President, General Counsel, Chief Compliance Officer, and Secretary of Unilife Medical Solutions, a developer and manufacturer of innovative drug delivery systems. Mr. Naftzger also held senior in-house counsel positions with Chesapeake Corporation and Koch Industries, and was a corporate partner with Blank Rome LLP in Washington, DC. Mr. Naftzger obtained his undergraduate degree from Hampden-Sydney College and his law degree from the Willamette University College of Law.
Daniel Dolan has served as our chief financial officer since March 2021. Mr. Dolan previously served as Vice President of Finance at Radius Health, Inc., or Radius, a commercial-stage biopharmaceutical company, from July 2017 to January 2021. He also acted as principal financial officer and principal accounting officer of Radius from September 2020 to December 2020. Prior to joining Radius, Mr. Dolan worked at Shire plc from September 2005 to July 2017, where he held financial management positions of increasing responsibility, including Vice President of Finance, Global Product Strategy from May 2016 to July 2017 and Senior Finance Director, GI/Internal Medicine from May 2013 to May 2016. Mr. Dolan received his M.B.A. and B.S. from Widener University.
Christine Guico-Pabia has served as our chief medical officer since October 2021. Dr. Guico-Pabia brings over 30 years of global biopharmaceutical experience and extensive expertise in every stage of drug development, pharmacoeconomics and outcomes research, and medical affairs. Most recently, she was Vice President, Head of Clinical Development and Medical Affairs of Metagenics from 2014 to 2021. Dr. Guico-Pabia previously held leadership positions at small startups and large multinational companies including McKesson, Merck, Wyeth, and Pfizer. Dr. Guico-Pabia completed her MD at the University of Santo Tomas Medical School in Manila, Philippines, obtained her MBA from Temple University Fox School of Business, and her MPH from Johns Hopkins University Bloomberg School of Public Health.
 
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EXECUTIVE AND DIRECTOR COMPENSATION
The following discussion provides the amount of compensation paid, and benefits in-kind granted, by us and our subsidiaries to the members of our board of directors and certain executives for services provided in all capacities to us and our subsidiaries for the year ended December 31, 2021.
Executive and Director Compensation Processes
Our executive compensation program is administered by the compensation committee of our board of directors, subject to the oversight and approval of our full board of directors. Our compensation committee reviews our executive compensation practices on an annual basis and based on this review approves, or, as appropriate, makes recommendations to our board of directors for approval of our executive compensation program.
In designing our executive compensation program, our compensation committee considers publicly available compensation data for national and regional companies in the biotechnology/pharmaceutical industry to help guide its executive compensation decisions at the time of hiring and for subsequent adjustments in compensation. Since 2016, our compensation committee has retained Aon’s Human Capital Solutions practice, a division of Aon plc, or Aon, (formerly known as Radford), as its independent compensation consultant, to provide comparative data on executive compensation practices in our industry and to advise on our executive compensation program generally. The committee also has retained Aon for guidelines and review of non-employee director compensation. Although our compensation committee considers the advice and guidelines of Aon as to our executive compensation program, our compensation committee ultimately makes its own decisions about these matters. In the future, we expect that our compensation committee will continue to engage independent compensation consultants to provide additional guidance on our executive compensation programs and to conduct further competitive benchmarking against a peer group of publicly traded companies. In 2021, the total amount paid to Radford for its executive and director compensation consulting services was $157,500.
Outside of services provided for the compensation committee, Aon provided nominal additional services to the Company in 2021 related to benchmarking data with respect to certain non-executive positions in an effort to ensure that our compensation practices are competitive so that we can attract, reward, motivate and retain employees at all levels of our organization. The total amount paid to Aon in connection with these additional engagements was less than $5,000 in 2021.
In addition, in 2021, Aon Insurance Services, an affiliate of Aon, provided services as an insurance broker for various insurance policies including our products liability insurance, directors’ and officers’ liability insurance and other commercial business insurance. In 2021, Aon Risk Services received an aggregate of approximately $407,330 in connection with such services.
The compensation committee regularly evaluates the nature and scope of the services provided by Aon. The compensation committee approved the 2021 executive and director compensation consulting services described above. Although the compensation committee was aware of the other services performed by Aon Risk Services, and considered any potential conflict with Aon’s independence, the compensation committee did not review such other services as those services were reviewed and approved by management in the ordinary course of business.
In order to ensure that Aon is independent, Aon is only engaged by, takes direction from, and reports to, the compensation committee and, accordingly, only the compensation committee has the right to terminate or replace Aon at any time. Further, Aon maintains certain internal controls which include, among other things:

All Aon staff are required to review and complete courses covering our Code of Conduct, which forbids Aon staff from trading in a client’s stock as well as the treatment of confidential client information;

Aon maintains a separate account management structure and database of contacts to protect the confidentiality of client lists and contacts;
 
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Aon is not reliant on any one client for meeting performance expectations during the year, thereby minimizing any account concentration risk for an account manager, which could impair objectivity;

Aon’s survey data are maintained on a separate IT platform to protect and secure the confidential nature of client information and the relationships where Aon provides services; and

Aon’s staff is not directly compensated for any cross-selling of Aon product or service.
The compensation committee reviewed information regarding the independence and potential conflicts of interest of Aon, taking into account, among other things, the factors set forth in the Nasdaq listing standards. Based on such review, the compensation committee concluded that the engagement of Aon did not raise any conflict of interest.
Our director compensation program is administered by our board of directors with the assistance of the compensation committee. The compensation committee conducts an annual review of director compensation and makes recommendations to the board of directors with respect thereto.
Summary Compensation Table
Our “named executive officers” for the year ended December 31, 2021 were as follows: Mr. Schroeder, our chief executive officer, Dr. Gelone, our president and chief operating officer and Mr. Dolan, our chief financial officer. The following table sets forth information regarding compensation awarded to, earned by or paid to our named executive officers for the periods presented.
Name and principal position
Year
Salary
($)
Bonus
($)(1)
Share
Awards
($)(2)
Option
Awards
($)(2)
Non-Equity
Incentive Plan
Compensation
($)(3)
All Other
Compensation
($)(4)
Total
($)
Theodore Schroeder(5)
Chief Executive Officer
2021 594,170 307,850 302,993 32,287 1,237,300
2020 576,800 464,130 339,625 242,256 31,759 1,654,570
Steven Gelone
President and Chief Operating Officer
2021 500,947 225,000 611,349 191,590 14,138 1,543,024
2020 486,300 270,863 231,493 153,185 12,675 1,154,516
Daniel Dolan(6)
Chief Financial Officer
2021 271,250 110,000 93,500 26,690 501,440
(1)
The amount reported in the “Bonus” column represents a $225,000 retention bonus awarded to Dr. Gelone in 2021, which shall be paid in March 2022.
(2)
The amounts reported in the “Share Awards” and “Option Awards” columns reflect the aggregate grant-date fair value of share-based compensation awarded during the year computed in accordance with the provisions of ASC Topic 718. See Note 10 to the consolidated financial statements in our Annual Report on Form 10-K for the fiscal year ended December 31, 2021 regarding assumptions underlying the valuation of equity awards.
(3)
The amounts reported in the “Non-Equity Incentive Plan Compensation” column represent awards to our named executive officers under our annual cash bonus program.
(4)
The compensation included in the “All Other Compensation” column consists of amounts we contributed to our 401(k) plan and medical insurance premiums paid by us on behalf of such individual.
(5)
Mr. Schroeder declined to accept his bonus payout for 2021.
(6)
Mr. Dolan commenced employment with us in March 2021.
Narrative Disclosure to Summary Compensation Table
Base Salary
In 2021, we paid annualized base salaries of $594,104 to Mr. Schroeder, $500,889 to Dr. Gelone and $330,000 to Mr. Dolan. In 2020, we paid annualized base salaries of $576,800 to Mr. Schroeder and $486,300 to Dr. Gelone.
 
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In January 2022, our board of directors, following approval and recommendation from the compensation committee and consistent with the recommendations of the compensation committee’s independent compensation consultant, approved an increase to the base salaries of our named executive officers for 2022 as follows: $515,916 for Dr. Gelone and $363,000 for Mr. Dolan. Our board of directors also approved of an increase in base salary for Mr. Schroeder, who declined to accept an increase to his base salary. The board also approved the 2022 base salary for Mr. Naftzger, our general counsel and secretary, of $367,500, and Dr. Guico-Pabia, our chief medical officer, of $428,480, which was also consistent with the recommendation of the compensation committee’s independent consultant.
None of our named executive officers is currently party to an employment agreement or other agreement or arrangement that provides for automatic or scheduled increases in base salary.
Annual Performance-Based Compensation
Our executive officers, which include the named executive officers, participate in our performance-based bonus program. All annual cash bonuses for our executives under the performance-based bonus program are tied to the achievement of strategic and operational corporate goals for the company, which are set by the compensation committee and approved by the board. There are no discretionary individual goals under the bonus program. The 2021 strategic and operational goals for Nabriva related to the following objectives:

commercialization of our products;

finance, specifically fundraising;

regulatory approvals;

business development; and

chemistry, manufacturing, and control (CMC).
Under their respective employment agreements, the annual target bonus for Mr. Schroeder is 60% of his current base salary, the annual target bonus for Dr. Gelone is 45% of his current base salary and the annual target bonus for each of Dr. Guico-Pabia, Mr. Naftzger and Mr. Dolan is 40% of their respective current base salaries.
At a meeting held in January 2022, our compensation committee reviewed the accomplishments of the named executive officers as measured against the aforementioned 2021 goals. The compensation committee reviewed whether each goal had been obtained and the weight such goals should be given in determining the bonus payout for 2021 performance. Based on its review, the compensation committee recommended a 85% payout of the target bonuses for 2021 for Mr. Schroeder, Dr. Gelone and Mr. Dolan. Mr. Schroeder declined to accept his bonus payout for 2021. Accordingly, the 2021 bonus payouts which were paid in February 2022, were $191,590 for Dr. Gelone and $93,500 for Mr. Dolan.
Equity Incentive Awards
We believe that equity grants provide our executive officers with a strong link to our long-term performance, create an ownership culture and help to align the interests of our executive officers and our shareholders. In addition, we believe that equity grants with a time-based vesting feature promote executive retention because this feature incents our executive officers to remain in our employment during the vesting period. Accordingly, our board of directors periodically reviews the equity incentive compensation of our executive officers, which includes the named executive officers, and from time to time may grant equity incentive awards to them in the form of stock options or restricted stock units, or RSUs. We also generally make stock option grants to new executive officers in connection with the commencement of their employment.
Since our initial public offering, we have granted stock options with exercise prices that are set at no less than the fair market value of the underlying award on the date of grant, as determined by reference to the trading price of our ordinary shares on Nasdaq, and approved by our compensation committee or our board.
 
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The following table sets forth the number of our ordinary shares issuable upon vesting of the share awards granted to our named executive officers in 2022:
Name
Option
Award (#)
RSU
Award (#)
Theodore Schroeder
239,800 119,900
Steven Gelone
93,400 46,700
Daniel Dolan
83,200 41,600
On January 28, 2021, our board of directors granted share option awards, as well as restricted share units, or RSUs, under the 2020 Share Incentive Plan to Mr. Schroeder, Dr. Gelone and Mr. Dolan, in each case, subject to shareholder approval of an amendment to increase the number of ordinary shares authorized for issuance under our 2020 Share Incentive Plan (Proposal 3). The share option awards and RSUs vest over a four-year period beginning on January 28, 2022, with 25% of the option vesting upon the first anniversary of the grant date and on a monthly pro rata basis thereafter over the remaining three years. Twenty five percent (25%) of the RSUs vest annually over the four-year vesting period. If shareholder approval of the amendment to the 2020 Share Incentive Plan (Proposal 3) is not obtained, the options will remain outstanding and will convert into cash-settled share appreciation rights. If shareholder approval of the amendment to the 2020 Share Incentive Plan (Proposal 3) is not obtained, each of the RSUs will represent the right to receive the economic equivalent of one ordinary share in cash on the applicable vesting date.
The following table sets forth the number of our ordinary shares issuable upon exercise or vesting of the share awards granted to our named executive officers in 2021:
Name
Option
Award (#)
RSU
Award (#)
Theodore Schroeder
117,500
Steven Gelone
333,197
Daniel Dolan
100,000
On January 29, 2021, our board of directors granted RSUs under the 2020 Share Incentive Plan to Mr. Schroeder and Dr. Gelone. The RSUs vest over a four-year period beginning on January 29, 2021. Twenty-five percent (25%) of the RSUs vest annually over the four-year vesting period. Mr. Dolan´s option to purchase 100,000 of our ordinary shares vests over four years, with 25% of the options vesting on March 31, 2022, and the remaining 75% of the option vesting on a monthly pro rata basis over the remaining three years of the vesting period. The option was awarded to Mr. Dolan in connection with the commencement of his employment.
As previously disclosed, our board of directors in 2020 awarded Dr. Gelone 23,250 options and 11,625 RSUs that were subject to performance conditions related to the commercial performance of the company and life cycle management of our product and product candidate portfolio. The vesting of these awards continues to be subject to the achievement of performance conditions, which, due to business disruption caused by the COVID-19 global pandemic, were extended and modified in March 2022.
 
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Outstanding Equity Awards as of December 31, 2021
The following table sets forth information regarding outstanding stock options and RSUs held by our named executive officers as of December 31, 2021:
Option Awards
Equity incentive
plan awards:
Number of
unearned shares,
units or other
rights that have
not vested
(#)
Equity incentive
plan awards:
Market or
payout value of
unearned shares,
units or other
rights that have
not vested
($)
Name
Number of
securities
underlying
unexercised
options
(#)
exercisable
Number of
securities
underlying
unexercised
options
(#)
unexercisable
Option
exercise
price
($)
Option
expiration
date
Theodore Schroeder
72,603 12,397(1) 35.30 07/25/2028 4,761(12) 2,852
31,339 11,641(2) 19.00 01/31/2029 18,623(13) 11,155
24,348 44,402(3) 13.50 02/06/2030 117,500(14) 70,383
Steven Gelone
8,879 (4) 72.05 07/05/2025 3,084(12) 1,847
5,590 (5) 83.40 02/05/2026 8,396(13) 5,029
11,300 (6) 85.00 02/07/2027 42,500(14) 25,458
9,791 209(7) 64.70 01/31/2028 11,625(15) 6,963
6,619 1,131(8) 35.30 07/25/2028 290,697(16) 174,128
624 126(9) 24.90 08/02/2028
20,299 7,541(2) 19.00 01/31/2029
10,979 20,021(3) 13.50 02/06/2030
23,250(10) 5.30 09/25/2030
Daniel Dolan
100,000(11) 1.66 03/31/2031
(1)
Mr. Schroeder’s option to purchase 85,000 of our ordinary shares vests over four years, with 25% of the options vesting on July 25, 2019, and the remaining 75% of the option vesting on a monthly pro rata basis over the remaining three years of the vesting period.
(2)
Mr. Schroeder’s and Dr. Gelone’s option to purchase ordinary shares vests over four years, with 25% of the options vesting on January 31, 2020, and the remaining 75% of the option vesting on a monthly pro rata basis over the remaining three years of the vesting period.
(3)
Mr. Schroeder’s and Dr. Gelone’s option to purchase ordinary shares vests over four years, with 25% of the options vesting on February 6, 2021, and the remaining 75% of the option vesting on a monthly pro rata basis over the remaining three years of the vesting period.
(4)
Dr. Gelone’s option to purchase 8,879 of our ordinary shares vests over four years, with 25% of the options vesting on May 31, 2016, and the remaining 75% of the option vesting on a monthly pro-rata basis over the remaining three years of the vesting period.
(5)
Dr. Gelone’s option to purchase 5,590 of our ordinary shares vests over four years, with 25% of the options vesting on February 28, 2017, and the remaining 75% of the option vesting on a monthly pro-rata basis over the remaining three years of the vesting period.
(6)
Dr. Gelone’s option to purchase 11,300 of our ordinary shares vests over four years, with 25% of the options vesting on February 28, 2018, and the remaining 75% of the option vesting on a monthly pro rata basis over the remaining three years of the vesting period.
(7)
Dr. Gelone’s option to purchase 10,000 of our ordinary shares vests over four years, with 25% of the options vesting on January 31, 2019, and the remaining 75% of the option vesting on a monthly pro rata basis over the remaining three years of the vesting period.
(8)
Dr. Gelone’s option to purchase 7,750 of our ordinary shares vests over four years, with 25% of the options vesting on July 25, 2019, and the remaining 75% of the option vesting on a monthly pro-rata basis over the remaining three years of the vesting period.
 
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(9)
Dr. Gelone’s option to purchase 750 of our ordinary shares vests over four years, with 25% of the options vesting on August 2, 2019, and the remaining 75% of the option vesting on a monthly pro-rata basis over the remaining three years of the vesting period.
(10)
Dr. Gelone’s option to purchase ordinary shares is subject to the commercial performance and life cycle management of the product and product candidate portfolio.
(11)
Mr. Dolan´s option to purchase 100,000 of our ordinary shares vests over four years, with 25% of the options vesting on March 31, 2022, and the remaining 75% of the option vesting on a monthly pro rata basis over the remaining three years of the vesting period.
(12)
Mr. Schroeder’s and Dr. Gelone’s RSUs vest over four years, with 25% of the RSUs vesting on January 31, 2020, and the remaining 75% of the RSUs vesting on a monthly pro-rata basis over the remaining three years of the vesting period.
(13)
Mr. Schroeder’s and Dr. Gelone’s RSUs vest over four years, with 25% of the RSUs vesting on February 6, 2021, and the remaining 75% of the RSUs vesting on a monthly pro-rata basis over the remaining three years of the vesting period.
(14)
Mr. Schroeder’s and Dr. Gelone’s RSUs vest over four years, with 25% of the RSUs vesting on January 29, 2022 and 25% of the RSUs vesting annually over the remainder of the vesting period.
(15)
Dr. Gelone’s vesting of the RSUs is subject to the commercial performance and life cycle management of the product and product candidate portfolio.
(16)
Dr. Gelone’s RSUs vest over two years, with 100% of the RSUs vesting on April 28, 2023.
Employment Agreements with Executive Officers
Agreement with Theodore Schroeder, Chief Executive Officer and Director
Mr. Schroeder was appointed our chief executive officer and entered into an employment agreement dated and effective as of July 23, 2018. He was appointed to our board on August 1, 2018. On March 10, 2021, we entered into an amended and restated employment agreement with Mr. Schroeder, or the Schroeder Employment Agreement. The Schroeder Employment Agreement continues until terminated in accordance with its terms, as described below.
Pursuant to the Schroeder Employment Agreement, Mr. Schroeder receives an annual base salary of $594,104 and is eligible to receive an annual performance bonus targeted at 60% of his annual base salary, with the actual amount of such bonus, if any, to be determined by the board. Mr. Schroeder is also (1) eligible to receive equity awards at such times and on such terms and conditions as the board may determine and (2) entitled to participate in any and all benefit programs that we make available to our executive officers, for which he may be eligible, under the plan documents governing such programs.
The employment agreement, and Mr. Schroeder’s employment, may be terminated as follows: (1) upon Mr. Schroeder’s death or “disability” ​(as disability is defined in his employment agreement); (2) at our election, with or without “cause” ​(as cause is defined in his employment agreement); and (3) at Mr. Schroeder’s election, with or without “good reason” ​(as good reason is defined in his employment agreement).
In the event of the termination of Mr. Schroeder’s employment by us without cause, including as a result of a termination of his employment for good reason prior to, or more than twelve months following, a “change in control” ​(as change in control is defined in the Schroeder Employment Agreement), Mr. Schroeder will be entitled to his base salary that has accrued and to which he is entitled as of the termination date. In addition, subject to his execution and nonrevocation of a release of claims in our favor and his continued compliance with his proprietary rights, non-disclosure and developments agreement with us, he is entitled to (1) continued payment of his base salary, in accordance with our regular payroll procedures, for a period of 18 months (2) provided he is eligible for and timely elects to continue receiving group medical insurance under COBRA and the payments would not result in the violation of nondiscrimination requirements of applicable law, payment by us of the portion of health coverage premiums we pay for similarly-situated, active employees who receive the same type of coverage, for a period of up to 18 months following his date of termination, (3) a lump sum payment equal to any earned but unpaid annual bonus for a previously completed calendar year, (4) a lump sum payment equal to a prorated annual bonus for the year in which
 
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Mr. Schroeder’s employment is terminated based on the number of days he provided services to us during the year in which his employment is terminated and (5) accelerated vesting of his then-unvested equity awards that are subject to time-based vesting and that would have vested within twelve months of the termination date, whether granted under the 2017 Share Incentive Plan, 2020 Share Incentive Plan or any successor equity incentive plan or as an inducement to his employment.
In the event of the termination of Mr. Schroeder’s employment by us without cause, including as a result of a termination of his employment for good reason prior to, or by him for good reason within twelve months following a change in control, subject (as described above with respect to certain payments), to his execution and nonrevocation of a release of claims in our favor and his continued compliance with his proprietary rights, non-disclosure and developments agreement with us, Mr. Schroeder would be entitled to the same payments and benefits as described in the preceding paragraph, except that, in lieu of a pro-rated annual bonus payment, he would be entitled to receive a lump sum payment equal to 100% of his target bonus for the year in which his employment is terminated and he shall also be entitled to full vesting acceleration of his then-unvested equity awards, whether granted under the 2017 Share Incentive Plan, 2020 Share Incentive Plan or any successor equity incentive plan or as an inducement to his employment, such that his equity awards become fully exercisable and non-forfeitable as of the termination date, except as otherwise determined by the Board in the case of awards subject to performance conditions.
If Mr. Schroeder’s employment is terminated for any other reason, including as a result of his death or disability, for cause, or voluntarily by Mr. Schroeder without good reason, our obligations under the Schroeder Employment Agreement cease immediately, and Mr. Schroeder is only entitled to his base salary that has accrued and to which he is entitled as of the termination date and solely if his employment is terminated as a result of his death or disability, subject to his execution and nonrevocation of a release of claims in our favor and his continued compliance with his proprietary rights, non-disclosure and developments agreement with us, he or his estate, as applicable, is entitled to any earned but unpaid annual bonus from a previously completed calendar year.
As a condition of his employment, Mr. Schroeder signed a proprietary rights, non-disclosure and developments agreement.
Agreements with Daniel Dolan, Chief Financial Officer, Steven Gelone, President, Chief Operating Officer and Director, Christine Guico-Pabia, Chief Medical Officer and Christopher Naftzger, General Counsel and Secretary
Mr. Dolan was appointed our chief financial officer effective as of March 12, 2021, and entered into an employment agreement dated and effective as of March 10, 2021, or the Dolan Employment Agreement. Dr. Gelone was appointed our chief development officer and entered into an employment agreement dated and effective as of December 1, 2014, which was amended and restated as of May 26, 2016 and further amended on restated on July 24, 2018. Dr. Gelone was subsequently appointed our chief scientific officer on June 30, 2017 and our president and chief operating officer on July 24, 2018. Dr. Gelone was appointed to our board on March 10, 2021. On March 10, 2021, we entered into an amended and restated employment agreement with Dr. Gelone, or the Gelone Employment Agreement. Dr. Guico-Pabia was appointed as our chief medical officer and entered into an employment agreement dated and effective as of October 1, 2021, or the Guico-Pabia Employment Agreement. Mr. Naftzger was appointed as our general counsel and secretary and entered into an employment agreement dated and effective as of September 1, 2021, or the Naftzger Employment Agreement. Each of the Dolan Employment Agreement, Gelone Employment Agreement, Guico-Pabia Employment Agreement and Naftzger Employment Agreement, or the Executive Employment Agreements, provides that such executive officer is an at will employee, and his employment with us can be terminated by the respective executive officer or us at any time and for any reason.
Pursuant to the Dolan Employment Agreement, Mr. Dolan receives an annual base salary of $330,000 and is eligible to receive an annual performance bonus targeted at 40% of his annual base salary, with the actual amount of such bonus, if any, to be determined by the board. Pursuant to the Gelone Employment Agreement, Dr. Gelone receives an annual base salary of $509,888 and is eligible to receive an annual performance bonus targeted at 45% of his annual base salary, with the actual amount of such bonus, if any, to be determined by the Board. Pursuant to the Guico-Pabia Employment Agreement, Dr. Guico-Pabia receives an annual base salary of $416,000 and is eligible to receive an annual performance bonus targeted
 
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at 40% of her annual base salary, with the actual amount of such bonus, if any, to be determined by the Board. Pursuant to the Naftzger Employment Agreement, Mr. Naftzger receives an annual base salary of $350,000 and is eligible to receive an annual performance bonus targeted at 40% of his annual base salary, with the actual amount of such bonus, if any, to be determined by the board. Each of Mr. Dolan, Dr. Gelone, Dr. Guico-Pabia and Mr. Naftzger are also (1) eligible to receive equity awards at such times and on such terms and conditions as the board may determine and (2) entitled to participate in any and all benefit programs that we make available to our executive officers, for which he may be eligible, under the plan documents governing such programs.
In addition, pursuant to the Dolan Employment Agreement, subject to approval by the compensation committee of the board or a majority of our independent directors as defined in Nasdaq Listing Rule 5605(a)(2), Mr. Dolan shall receive a nonqualified share option to purchase 100,000 ordinary shares at an exercise price per share equal to the closing price per share of the ordinary shares on the Nasdaq Global Select Market on the date of grant, to vest over a period of four (4) years, subject to the terms and conditions of our 2021 Inducement Share Incentive Plan and a nonqualified share option agreement between us and Mr. Dolan, and awarded outside of our equity incentive plans as an “inducement grant” within the meaning of Nasdaq Listing Rule 5635(e)(4).
Each Executive Employment Agreement and the employment of each of Mr. Dolan, Dr. Gelone, Dr. Guico-Pabia and Mr. Naftzger may be terminated in one of three ways: (1) upon the death or “disability” (as disability is defined in the applicable Executive Employment Agreement) of such executive officer; (2) at our election, with or without “cause” ​(as cause is defined in the applicable Executive Employment Agreement); and (3) at such executive officer’s election, with or without “good reason” ​(as good reason is defined in the applicable Executive Employment Agreement).
In the event of the termination of such executive officer’s employment by us without cause or by him for good reason prior to, or more than twelve months following, a “change in control” ​(as change in control is defined in the applicable Executive Employment Agreement), such executive officer will be entitled to his or her base salary that has accrued and to which he is entitled as of the termination date. In addition, subject to such executive officer’s execution and nonrevocation of a release of claims in our favor and his or her continued compliance with his or her proprietary rights, non-disclosure and developments agreement with us, such executive officer is entitled to (1) continued payment of such executive officer’s base salary, in accordance with our regular payroll procedures, for, in the case of Mr. Dolan, Dr. Guico-Pabia and Mr. Naftzger, a period of 12 months, and in the case of Dr. Gelone, a period of 15 months, (2) provided he or she is eligible for and timely elects to continue receiving group medical insurance under COBRA and the payments would not result in the violation of nondiscrimination requirements of applicable law, payment by us of the portion of health coverage premiums we pay for similarly-situated, active employees, who receive the same type of coverage, for, in the case of Mr. Dolan, Dr. Guico-Pabia and Mr. Naftzger, a period of up to 12 months and, in the case of Dr. Gelone, a period of 15 months, following the date of termination, (3) a lump sum payment equal to any earned but unpaid annual bonus for a previously completed calendar year and (4) a lump sum payment equal to a prorated annual bonus for the year in which such executive officer’s employment is terminated based on the number of days such executive officer provided services to us during the year in which such executive officer’s employment is terminated.
In the event of the termination of the executive officer’s employment by us without cause or by him or by her for good reason within twelve months following a change in control, subject (as described above with respect to certain payments) to such executive officer’s execution and nonrevocation of a release of claims in our favor and his or her continued compliance with his or her proprietary rights, non-disclosure and developments agreement with us, such executive officer will be entitled to the same payments and benefits as described in the preceding paragraph, except that, in lieu of a pro-rated annual bonus payment, such executive officer will be entitled to receive a lump sum payment equal to 100% of such executive officer’s target bonus for the year in which his or her employment is terminated, and such executive officer shall also be entitled to full vesting acceleration of his or her then-unvested equity awards, whether granted under the 2017 Share Incentive Plan, 2020 Share Incentive Plan or any successor equity incentive plan, such that his or her equity awards become fully exercisable and non-forfeitable as of the termination date, except as otherwise determined by the Board in the case of awards subject to performance conditions.
 
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If such executive officer’s employment is terminated for any other reason, including as a result of his or her death or disability, for cause, or voluntarily by such executive officer without good reason, our obligations under the applicable Executive Employment Agreements cease immediately, and such executive officer is only entitled to his or her base salary that has accrued and to which he is entitled as of the termination date and, solely if such executive officer’s employment is terminated as a result of his or her death or disability and subject to his or her execution and nonrevocation of a release of claims in our favor and his or her continued compliance with his or her proprietary rights, non-disclosure and developments agreement with us, such executive officer or the estate of such executive officer, as applicable, is entitled to any earned but unpaid annual bonus from a previously completed calendar year.
As a condition to their employment, each of Mr. Dolan, Dr. Gelone, Dr. Guico-Pabia and Mr. Naftzger signed a proprietary rights, non-disclosure and developments agreement.
Equity Incentive Plans
In this section, we describe our 2020 Share Incentive Plan, 2017 Share Incentive Plan and Stock Option Plan 2015. Prior to the redomiciliation to Ireland, or Redomiciliation, Nabriva Austria granted awards to eligible recipients under the Stock Option Plan 2015. In connection with the Redomiciliation, both plans were amended to take account of certain requirements under Irish law and assumed by us, with each option to acquire one Nabriva Austria common share becoming an option to acquire ten of our ordinary shares on the same terms and conditions. We currently make share awards to eligible recipients solely under our 2020 Share Incentive Plan.
2020 Share Incentive Plan, As Amended
On March 4, 2020, our board of directors adopted the 2020 Share Incentive Plan, or the 2020 Plan, which was approved by our shareholders at the 2020 Annual General Meeting of Shareholders in July 2020, or the 2020 AGM. As of the date of the 2020 AGM, the total number of ordinary shares reserved for issuance under the 2020 Plan was for the sum of 930,000 ordinary shares, plus the number of our ordinary shares that remained available for grant under the 2017 Plan as of immediately prior to the AGM and the number of ordinary shares subject to awards granted under the 2017 Plan and our Amended and Restated Stock Option Plan 2015, that expire, terminate or are otherwise surrendered, cancelled, forfeited or repurchased by us at their original issuance price pursuant to a contractual repurchase right. Following shareholder approval of the 2020 Plan, no further awards will be made under the 2017 Plan. On January 28, 2022, upon the recommendation of the compensation committee and subject to shareholder approval, our board of directors adopted an amendment to the 2020 Plan, or the Plan Amendment, solely to increase the number of shares available for issuance under the 2020 Plan by 7,000,000 shares, subject to adjustment in the event of share splits and other similar events. Other than increasing the number of shares available for issuance, the Plan Amendment does not make any changes to the 2020 Plan. For a more detailed summary of our 2020 Share Incentive Plan, as amended, please refer to Proposal 3 of this proxy statement.
2017 Share Incentive Plan
The 2017 Share Incentive Plan permitted the award of share options, share appreciation rights, or SARs, restricted shares, restricted share units or RSUs, and other share-based awards to our employees, officers, directors, consultants and advisers. With the initial shareholder approval of the 2020 Share Incentive Plan, there were no further shares available for issuance under the 2017 Plan. However, all outstanding awards under 2017 Plan will remain in effect and continue to be governed by the terms of the 2017 Plan. As of June 24, 2022, under our 2017 Share Incentive Plan, there were options to purchase an aggregate of 304,075 of our ordinary shares at a weighted average exercise price of $29.84 per share and 41,187 restricted stock units outstanding with a weighted average grant date fair value of $14.62 per share. Unless the context specifically indicates otherwise, references to our 2017 Share Incentive Plan in this proxy statement refer to the 2017 Share Incentive Plan, as amended and adopted by us.
If, during the term of the 2017 Share Incentive Plan, there is a change in our capital or a restructuring measure which has an effect on our capital, such as a share split or reverse share split, which change or measure results in a change in the value of the share-based awards outstanding under the 2017 Share Incentive Plan, the board will make appropriate adjustments to the price or the amount of such outstanding awards.
 
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The 2017 Share Incentive Plan also contains provisions addressing the consequences of any reorganization event. A reorganization event is defined as (a) any merger or consolidation of us with or into another entity as a result of which all of our ordinary shares are converted into or exchanged for the right to receive cash, securities or other property, or are cancelled, (b) any transfer or disposition of all of our ordinary shares for cash, securities or other property pursuant to a share exchange or other transaction or (c) our liquidation or dissolution; any one of which, (a), (b) or (c), may be effected pursuant to the laws of the Republic of Ireland.
The 2017 Share Incentive Plan provides that, if a reorganization event occurs, the board of directors may take one or more of the following actions to all or any outstanding awards other than restricted shares on such terms as the board of directors determines: (1) provide that such awards will be assumed, or substantially equivalent awards will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), (2) upon written notice to a participant, provide that all of the participant’s unvested awards will be forfeited immediately prior to the consummation of such reorganization event and/or that all of the participant’s unexercised awards will terminate immediately prior to the consummation of such reorganization event unless exercised by the participant (to the extent then exercisable) within a specified period following the date of such notice, (3) provide that outstanding awards will become exercisable, realizable, or deliverable, or restrictions applicable to an award will lapse, in whole or in part prior to or upon such reorganization event, (4) in the event of a reorganization event under the terms of which holders of our ordinary shares will receive, upon consummation thereof, a cash payment for each share surrendered in the reorganization event, which we refer to as the Acquisition Price, make or provide for a cash payment to participants with respect to each award held by a participant equal to (A) the number of ordinary shares subject to the vested portion of the award (after giving effect to any acceleration of vesting that occurs upon or immediately prior to such reorganization event) multiplied by (B) the excess, if any, of (I) the Acquisition Price over (II) the exercise, measurement or purchase price of such award and any applicable tax withholdings, in exchange for the termination of such award, (5) provide that, in connection with our liquidation or dissolution, awards will convert into the right to receive liquidation proceeds (if applicable, net of the exercise, measurement or purchase price thereof and any applicable tax withholdings) and (6) any combination of the foregoing. Our board is not obligated to treat all awards, all awards held by a participant, or all awards of the same type, identically.
No additional awards may be granted under the 2017 Share Incentive Plan. The board of directors may, at any time, amend, suspend or terminate the 2017 Share Incentive Plan or any portion thereof. However, if shareholder approval is required, including by application of Irish law, the board may not effect such modification or amendment without such approval.
Stock Option Plan 2015
The Stock Option Plan 2015 provided for the grant of options to purchase our ordinary shares to our employees, including executive officers, and to directors. With the approval of the 2017 Share Incentive Plan, there were no further shares available for issuance under the Stock Option Plan 2015. However, all outstanding awards under Stock Option Plan 2015 will remain in effect and continue to be governed by the terms of the Stock Option Plan 2015. As of June 24, 2022, under our Stock Option Plan 2015, there were options to purchase an aggregate of 160,205 of our ordinary shares at a weighted average exercise price of $80.17 per share and no ordinary shares are available for issuance under the plan. Unless the context specifically indicates otherwise, references to our Stock Option Plan 2015 in this proxy statement refer to the Stock Option Plan 2015, as amended and adopted by us.
Options granted under the Stock Option Plan 2015 entitle beneficiaries thereof to purchase our ordinary shares at an exercise price equal to 100% of the fair market value per share on the beneficiary’s date of participation, which following the Redomiciliation was derived from the closing sale price of our ordinary shares on the Nasdaq Global Select Market. Options granted under the Stock Option Plan 2015 generally vest over four years from the beneficiary’s date of participation. Typically, 25% of the options subject to a particular grant vest on the last day of the last calendar month of the first year of the vesting period, and the remaining 75% vests on a monthly pro-rata basis over the second, third and fourth years of the vesting period (i.e., 2.083% per month). Any alternative vesting period determined by us is subject to approval by our executive officers, board of directors or shareholders, in accordance with any applicable voting requirements.
 
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The Stock Option Plan 2015 provides that, if a liquidity event (as defined below) occurs, all options outstanding under the Stock Option Plan 2015 will be assumed (or substantially equivalent awards will be substituted by an acquiring or succeeding corporation (or an affiliate of the acquiring or succeeding company or corporation)), and any then-unvested options shall continue to vest in accordance with the beneficiary’s original vesting schedule. If a beneficiary is terminated due to a good leaver event (within the meaning of the Stock Option Plan 2015), on or prior to the first anniversary of the date of the liquidity event, the beneficiary’s options will be immediately exercisable in full as of the date of such termination. If the acquiring or succeeding company or corporation (or an affiliate of the acquiring or succeeding company or corporation) refuses to assume the options outstanding under the Stock Option Plan 2015 or to substitute substantially equivalent options therefor, all then-unvested options under the Stock Option Plan 2015 will automatically vest in full upon the liquidity event. For purposes of the Stock Option Plan 2015, a liquidity event generally refers to an exclusive license of or the sale, lease or other disposal of all or substantially all of our assets, a sale or other disposal (but not a pledge) of 50% or more of our shares, a merger or consolidation of us with or into any third party, or our liquidation, winding up or other form of dissolution of us.
Unless otherwise specifically permitted in an option agreement or resolved upon by the board of directors, the exercise of vested options is permitted under the Stock Option Plan 2015 only during specified periods and on specified terms in the case of a liquidity event or following an initial public offering occurring during the term of the option. A beneficiary is entitled to exercise vested options at any time during the remaining term of the option while the beneficiary is providing services to us, and within the three-month period following a termination of the beneficiary’s services due to a good leaver event. Options granted under the Stock Option Plan 2015 will have a term of no more than ten years from the beneficiary’s date of participation.
If, during the term of the Stock Option Plan 2015, there is a change in our capital or a restructuring measure which has an effect on our capital, such as a stock split or reverse stock split, which change or measure results in a change in the value of the options outstanding under the Stock Option Plan 2015, the board may make appropriate adjustments to the price or the amount of such outstanding options.
The board of directors may, at any time, amend, suspend or terminate the Stock Option Plan 2015 in whole or in part. However, if shareholder approval is required, including by application of Irish law, the board may not effect such modification or amendment without such approval.
401(k) Plan
We maintain a defined contribution employee retirement plan for our U.S.-based employees. Our 401(k) plan is intended to qualify as a tax-qualified plan under Section 401 of the Internal Revenue Code, so that contributions to our 401(k) plan, and income earned on such contributions, are not taxable to participants until withdrawn or distributed from the 401(k) plan. Our 401(k) plan provides that each participant may contribute up to 100% of his or her pre-tax compensation, up to a statutory limit, which is $19,500 for 2021. Participants who are at least 50 years old can also make “catch-up” contributions, which in 2021 may be up to an additional $6,500 above the statutory limit. Under our 401(k) plan, each employee is fully vested in his or her deferred salary contributions. Employee contributions are held and invested by the plan’s trustee, subject to participants’ ability to give investment directions by following certain procedures. We generally match 100.0% of the first 3.0% of the employee’s voluntary contribution to the 401(k) plan and 50.0% of the next 2.0% contributed by the employee. Our 401(k) matching policy was temporarily suspended during a portion of 2020.
Tax and Accounting Considerations
Section 162(m) of the Code generally disallows a tax deduction to public companies for compensation in excess of $1 million paid in any taxable year to each of certain of the Company’s current and former executive officers. Historically, compensation that qualified under Section 162(m) as performance-based compensation was exempt from the deduction limitation. However, subject to certain transition rules, the tax reform legislation signed into law on December 22, 2017 eliminated the qualified performance-based compensation exception. As a result, for taxable years beginning after December 31, 2017, all compensation in excess of $1 million paid in any taxable year to each of to the specified officers that is not covered by the transition rules will not be deductible by us. The board of directors has and will continue to review on a periodic basis the potential effect of Section 162(m) and may use its judgment to authorize compensation
 
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payments that may be in excess of the limit when it believes such payments are appropriate and in the best interests of our company and our shareholders.
Securities Authorized for Issuance under Equity Compensation Plans
The following table contains information about our equity compensation plans as of December 31, 2021. As of December 31, 2021, we had four equity compensation plans: the 2020 Share Incentive Plan, the 2017 Share Incentive Plan, the Stock Option Plan 2015 and the 2018 Employee Share Purchase Plan, each of which were approved by our shareholders. In addition, from time to time, the compensation committee grants inducement equity awards to individuals as an inducement material to the individual’s entry into employment with us within the meaning of Nasdaq Listing Rules, including pursuant to our 2021 Inducement Share Incentive Plan, or the Inducement Plan, that was adopted by our board of directors without shareholder approval. We also previously made such inducement awards pursuant to our 2019 Inducement Share Incentive Plan.
Plan category
Number of
securities to be
issued upon
exercise
of outstanding
options, warrants
and rights
Weighted-average
exercise price of
outstanding
options, warrants
and rights
Number of
securities
remaining
available for future
issuance under
equity
compensation plans
(excluding
securities reflected
in column(a))
(a)
(b)
(c)
Equity compensation plans approved by security holders
1,673,170(1) $ 27.07(3) 290,218(5)
Equity compensation plans not approved by security holders
465,045(2) 7.91(3) 128,120
Total
2,138,215 $ 20.46(3)(4) 418,338
(1)
Includes ordinary shares underlying awards outstanding under our 2020 Share Incentive Plan, 2017 Share Incentive Plan and our Stock Option Plan 2015.
(2)
Represents an option award and a performance-based restricted share unit award granted to Mr. Schroeder on July 25, 2018, as an inducement material to Mr. Schroeder’s acceptance of employment with the Company in accordance with Nasdaq Listing Rule 5635(c)(4) and other inducement awards made in accordance with Nasdaq Listing Rule 5635(c)(4) under our 2019 Inducement Share Incentive Plan and 2021 Inducement Share Incentive Plan.
(3)
Only share option awards were used in computing the weighted-average exercise price.
(4)
Includes ordinary shares available for issuance under our 2020 Share Incentive Plan and 2018 Employee Share Purchase Plan.
2021 Inducement Share Incentive Plan
On December 9, 2020, our board of directors adopted without shareholder approval the 2021 Inducement Share Incentive Plan, or the 2021 Inducement Plan and, subject to the adjustment provisions of the 2021 Inducement Plan, reserved 200,000 ordinary shares for issuance pursuant to equity awards granted under the 2021 Inducement Plan. In accordance with Nasdaq Listing Rule 5635(c)(4), awards under the 2021 Inducement Plan may only be made to individuals who were not previously employees or non-employee directors of the Company (or following such individuals’ bona fide period of non-employment with the Company), as an inducement material to the individuals’ entry into employment with the Company. In September 2021, our board of directors adopted an amendment to the 2021 Inducement Plan that increased the amount of shares reserved for issuance under the plan from 200,000 shares to 500,000 shares.
Options and SARs granted will be exercisable at such times and subject to such terms and conditions as the board may specify in the applicable option agreement; provided, however, that no option or SAR will
 
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be granted with a term in excess of ten years. The board will also determine the terms and conditions of restricted shares and RSUs, including the conditions for vesting and repurchase (or forfeiture) and the issue price, if any.
Risk Considerations in Our Compensation Program
Our compensation committee has reviewed and evaluated the philosophy and standards on which our compensation plans have been developed and implemented across our company. It is our belief that our compensation programs do not encourage inappropriate actions or risk taking by our executive officers. We do not believe that any risks arising from our employee compensation policies and practices are reasonably likely to have a material adverse effect on our company. In addition, we do not believe that the mix and design of the components of our executive compensation program encourage management to assume excessive risks.
Director Compensation
The following table sets forth a summary of the compensation earned by the non-employee members of our board of directors for the year ended December 31, 2021.
Name
Fees Earned
or Paid
in Cash
($)(1)
Option
Awards
($)(2)
Share
Awards
($)(2)
Total
($)
Daniel Burgess
89,509 24,185(3) 18,900(4) 132,594
Colin Broom
39,781 24,185(3) 18,900(4) 82,866
Lisa Dalton(5)
26,309 33,635(4) 18,900(4) 78,844
Charles Rowland, Jr.
60,396 24,185(3) 18,900(4) 103,481
Stephen Webster
68,917 24,185(3) 18,900(4) 112,002
Carrie Bourdow
49,364 24,185(3) 18,900(4) 92,449
Mark Corrigan(5)
27,370 33,635(6) 18,900(4) 79,905
George Talbot(7)
25,644 25,644
(1)
Fees earned consist of gross director retainer fees which were subject to income tax withholdings in Ireland.
(2)
The amounts reported in the “Option Awards” and “Share Awards” columns reflect the aggregate fair value of share-based compensation awarded during 2021 computed in accordance with the provisions of ASC Topic 718. See Note 10 to the consolidated financial statements in our Annual Report on Form 10-K for the fiscal year ended December 31, 2021 regarding assumptions underlying the valuation of equity awards.
(3)
Represents the grant of an option to purchase 35,000 of our ordinary shares vesting with respect to all of the shares on the last date of the month of the first anniversary of the grant date.
(4)
Represents the grant of 17,500 RSUs vesting with respect to all of the shares on the last date of the month of the first anniversary of the grant date.
(5)
Lisa Dalton and Mark Corrigan joined as directors on June 2, 2021.
(6)
Represents the grant of an option to purchase 35,000 of our ordinary shares vesting with respect to all of the shares on the last date of the month of the first anniversary of the grant date, as well as the grant of an option to purchase 10,500 shares vesting on a monthly pro-rata basis over three years of the vesting period.
(7)
George Talbot resigned as a director on July 28, 2021.
Director Compensation Arrangements
Effective as of October 31, 2018, our board of directors adopted a non-employee director compensation policy, which provided for the following:
 
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each new non-employee director receives an initial grant of an option to purchase 7,000 of our ordinary shares upon his or her initial election to the board of directors;

each non-employee director receives an annual grant of an option to purchase 3,500 of our ordinary shares on the date of our annual general meeting of shareholders;

each non-employee director receives an annual cash fee of $40,000;

the chairman of our board of directors receives an additional annual cash fee of $30,000;

each non-employee director who is a member of the audit committee receives an additional annual cash fee of $10,000 ($20,000 for the audit committee chair);

each non-employee director who is a member of the compensation committee receives an additional annual cash fee of $7,500 ($15,000 for the compensation committee chair); and

each non-employee director who is a member of the nominating and corporate governance committee receives an additional annual cash fee of $5,000 ($10,000 for the nominating and corporate governance committee chair).
On December 16, 2019, our board of directors approved an amendment to our non-employee director compensation policy. Effective as of December 16, 2019, the amendment increased the initial grant of an option to purchase our ordinary shares to new non-employee directors upon their initial election to the board of directors to 10,500 ordinary shares and increased the annual grant of an option to purchase our ordinary shares to 3,500 ordinary shares and 1,750 restricted stock units. Effective as of July 29, 2021, a subsequent amendment increased the initial grant of an option to purchase our ordinary shares to new non-employee directors upon their initial election to the board of directors to 105,000 ordinary shares and increased the annual grant of an option to purchase our ordinary shares to 35,00 ordinary shares and 17,500 restricted stock units. On January 28, 2022, our board of directors approved an additional amendment to our non-employee director compensation policy. Effective as of January 28, 2022, the subsequent amendment reduced the annual grant of an option to purchase our ordinary shares to 13,000 ordinary shares and 6,500 restricted stock units.
The share options to be granted to our non-employee directors under our non-employee director compensation policy have an exercise price equal to the fair market value of our ordinary shares on the date of grant and will expire ten years after the date of grant. The initial share options granted to newly elected director vest, subject to such director’s continued service on the board, over a three-year period on a monthly pro-rata basis at the end of each successive month following the date of the initial grant. The annual share options granted to directors will vest, subject to such director’s continued service on the board, fully on the last date of the month of the first anniversary of the grant date. The annual restricted share units awarded to directors will vest, subject to such director’s continued service on the board, fully on the last date of the month of the first anniversary of the grant date.
Under our non-employee director compensation policy, the annual cash fees are payable in arrears in four equal quarterly installments payable the week following the end of each quarter. Each non-employee director is also entitled to reimbursement for reasonable travel and other expenses incurred in connection with attending meetings of the board of directors and any committee on which he or she serves or otherwise in direct service of the Company.
 
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AUDIT-RELATED MATTERS
Audit Committee Report
The audit committee of the board of directors reviewed our audited consolidated financial statements for the fiscal year ended December 31, 2021 and discussed them with management and KPMG LLP, our independent registered public accounting firm.
Our audit committee received from, and discussed with, KPMG LLP various communications that KPMG LLP was required to provide to the audit committee, including the matters required to be discussed by the applicable requirements of the Public Company Accounting Oversight Board and the Securities and Exchange Commission.
Our audit committee received the written disclosures and the letter from KPMG LLP required by the applicable requirements of the Public Company Accounting Oversight Board regarding its communications with us concerning independence and discussed with KPMG LLP its independence.
Based on the review and discussions referred to above, our audit committee recommended to our board of directors that the audited consolidated financial statements referred to above be included in our Annual Report on Form 10-K for the year ended December 31, 2021.
By the Audit Committee of the Board of Directors:
Daniel Burgess
Mark Corrigan
Stephen Webster
Audit Fees and Services
The following table sets forth, for each of the years indicated, the aggregate fees billed or expected to be billed to us for services rendered by KPMG LLP, or KPMG.
Year Ended
December 31,
(in thousands)
2021
2020
Audit Fees(1)
$ 813 $ 724
Audit Related Fees(2)
Tax Fees(3)
9 9
All Other Fees(4)
(1)
“Audit fees” consist of fees for the audit of our annual financial statements, the review of the interim financial statements included in our quarterly reports on Form 10-Q, our at-the-market facility and December 2020 public offering, and other professional services provided in connection with regulatory filings or engagements.
(2)
“Audit-Related Fees” consist of fees billed by KPMG for assurance and related services that are reasonably related to the performance of the audit or review of our consolidated financial statements. There were no such fees incurred in 2021 or 2020.
(3)
“Tax Fees” consist of fees for professional services, including tax consulting and compliance performed by KPMG.
(4)
There were no “other fees” incurred in 2021 or 2020.
Pre-Approval Policies and Procedures
Our audit committee has adopted policies and procedures relating to the approval of all audit and non-audit services that are to be performed by our independent registered public accounting firm. This policy generally provides that we will not engage our independent registered public accounting firm to render
 
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audit or non-audit services unless the service is specifically approved in advance by our audit committee or the engagement is entered into pursuant to a de minimis exception in accordance with applicable SEC rules.
All of the services provided to us by KPMG during the last two fiscal years were approved by the audit committee.
 
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MATTERS TO BE VOTED ON
Proposal 1:   Election of Directors
Based upon the recommendation of the nominating and corporate governance committee of our board of directors, our board of directors has nominated each of Daniel Burgess, Carrie Bourdow, Colin Broom, Steven Gelone, Charles A. Rowland, Jr., Theodore Schroeder, Stephen Webster, Mark Corrigan and Lisa Dalton for election as directors to serve until the 2023 Annual General Meeting. All nominees are presently directors and their biographies are provided above under “Corporate Governance — Board of Directors.”
Unless otherwise instructed in the proxy, all proxies will be voted “FOR” the election of each of the nominees identified above. Shareholders who do not wish their shares to be voted for any of the nominees may so indicate by voting “Against” the election of such nominee(s). Each of the nominees has indicated his or her willingness to serve on our board of directors, if elected. If any nominee should be unable to serve, the person acting under the proxy may vote the proxy for a substitute nominee designated by our board of directors. We do not contemplate that any of the nominees will be unable to serve if elected.
In order to be elected as a director, each nominee must receive the affirmative vote of a majority of the votes cast at the Annual General Meeting.
OUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR THE ELECTION OF EACH OF THE NOMINEES AS DIRECTORS.
Proposal 2:   To Ratify, in a Non-Binding Advisory Vote, the Selection of KPMG LLP as Our Independent Registered Public Accounting Firm for the Fiscal Year Ending December 31, 2022 and to Authorize, in a Binding Vote, the Board of Directors, Acting Through the Audit Committee, to set the Auditor’s Remuneration
The audit committee of our board of directors has selected the firm of KPMG LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2022. KPMG has served as our independent registered public accounting firm since May 30, 2017. Our board of directors is seeking shareholder ratification of the selection by the audit committee of KPMG to serve as our independent registered public accounting firm and the authorization of the board of directors, acting through the audit committee, to set the auditor’s remuneration. If this proposal is not approved at the AGM, our audit committee may reconsider this selection.
Representatives of KPMG are expected to be present in person or telephonically at the AGM and will have the opportunity to make a statement if they desire to do so. It is also expected that they will be available to respond to appropriate questions from shareholders.
The affirmative vote of a majority of the votes cast at the AGM is required for this proposal.
OUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR THE RATIFICATION OF THE SELECTION OF KPMG LLP AS OUR INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM FOR THE FISCAL YEAR ENDING DECEMBER 31, 2022 AND THE AUTHORIZATION OF THE BOARD OF DIRECTORS, ACTING THROUGH THE AUDIT COMMITTEE, TO SET THE AUDITOR’S REMUNERATION.
Proposal 3:   To Approve an Amendment to of Our 2020 Share Incentive Plan, as amended
Why We Are Requesting Shareholder Approval of an Amendment to Our 2020 Share Incentive Plan, as amended
We are asking our shareholders to approve an amendment, which we refer to as the Plan Amendment, to the Nabriva Therapeutics plc 2020 Share Incentive Plan, as amended, which we refer to in this Proposal 3 as the 2020 Plan, to increase the number of shares available for issuance under the 2020 Plan. Our board of directors believes that our ability to execute our business plan depends on our ability to maintain a competitive position by attracting, retaining and motivating key personnel with experience and ability. The market for qualified personnel in our industry is highly competitive. Among the companies we compete with
 
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for talent are many early stage, private and venture-backed entities, as well as recently public and mature public companies. In each case, these companies offer equity incentives as a central and significant component of their compensation packages. The ability to grant equity awards is therefore critical to our ability to attract, retain and motivate top talent and is a key component of our compensation program. However, we do not currently have sufficient shares available for issuance under the 2020 Plan to make critical, market-based grants to our executives and other employees and non-employee directors.
The 2020 Share Incentive Plan was adopted by our board of directors on March 4, 2020, and amended by the board of directors, subject to shareholder approval, to increase the number of shares available for issuance under the 2020 Plan on April 29, 2020. The 2020 Plan was approved by our shareholders on July 29, 2020. On January 28, 2022, upon the recommendation of the compensation committee and subject to shareholder approval, our board of directors adopted the Plan Amendment solely to increase the number of shares available for issuance under the 2020 Plan by 7,000,000 shares, subject to adjustment in the event of share splits and other similar events. We refer to the 2020 Plan, as amended by the Plan Amendment, as the Amended 2020 Plan in this Proposal 3. Other than increasing the number of shares available for issuance, the Plan Amendment does not make any changes to the 2020 Plan.
We believe the features of the Amended 2020 Plan protect shareholder interests and are consistent with good corporate governance. Certain of these features are described in greater detail below under the heading “— Highlights of the Amended 2020 Plan.”
We have not adjusted any of the amounts in this Proposal 3 to reflect the effect of the proposed Reverse Stock Split described in Proposal 5 of this proxy statement. If the Reverse Stock Split Proposal is implemented, the number of our issued and outstanding ordinary shares will be reduced at a ratio to be determined by our board of directors within a range of 1-for-10 and 1-for-25. As of the effective time of the Reverse Stock Split, we would also adjust and proportionately decrease the number of our ordinary shares reserved for issuance upon exercise of, and adjust and proportionately increase the exercise price of, all options and warrants and other rights to acquire our ordinary shares. In addition, as of the effective time of the Reverse Stock Split, we would adjust and proportionately decrease the total number of our ordinary shares that may be the subject of the future grants under our share plans, including the 2020 Plan. For a more detailed summary of the proposed Reverse Stock Split, please refer to Proposal 5 of this proxy statement.
If shareholders approve the Plan Amendment, subject to adjustment in the event of share splits and other similar events, awards (any or all of which may be in the form of incentive share options) may be made under the Amended 2020 Plan for up to the sum of (1) 7,930,000 ordinary shares; plus (2) a number of ordinary shares (up to 1,092,548 ordinary shares) which is equal to the sum of the number of our ordinary shares that were available for grant under the 2017 Share Incentive Plan, as amended, which we refer to as the 2017 Plan, as of immediately prior to the 2020 Annual General Meeting of Shareholders and the number of ordinary shares subject to awards granted under the 2017 Plan and our Amended and Restated Stock Option Plan 2015, as amended, which we refer to as the 2015 Plan, that expire, terminate or are otherwise surrendered, cancelled, forfeited or repurchased by us at their original issuance price pursuant to a contractual repurchase right (subject, in the case of incentive share options, to any limitations under the Internal Revenue Code of 1986, as amended, which we refer to as the Code).
We and our board of directors understand that our equity-compensation needs must be balanced against the dilutive effect of such programs to our shareholders. Accordingly, the share pool increase being requested for the Amended 2020 Plan is the result of careful consideration of our projected annual equity awards to employees and our non-employee directors, employee recognition and promotion awards, awards to attract and retain new employees, our overhang and burn rate (both of which are discussed below) and an assessment of the magnitude of the increase that our shareholders would likely find acceptable. We believe that the size of the proposed increase to the share pool under the Amended 2020 Plan is reasonable and, if shareholder approval of the Plan Amendment is obtained at the AGM, we expect that the share pool under the Amended 2020 Plan will allow us to continue to grant equity awards at our historic rates for approximately two years, but this may vary based on changes in participation and our share price. An analysis of our “overhang” and “burn rate” appears below under the heading “— Information Regarding Overhang and Dilution.”
 
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The following table describes the awards that are outstanding and the number of shares that remain available for issuance as of June 24, 2022 under our share incentive plans:
2017 Plan

options to purchase an aggregate of 304,075 of our ordinary shares, with a weighted average remaining term of 6.6 years and a weighted average exercise price of $29.84 per share;

41,187 restricted share units, or RSUs, with a weighted average grant date fair value of $14.62 per share; and

no ordinary shares available for future issuance.
2015 Plan

options to purchase an aggregate of 160,205 of our ordinary shares, with a weighted average remaining term of 3.8 years and a weighted average exercise price of $80.17 per share; and

no ordinary shares available for future issuance.
Inducement Grants (including under the 2019 Inducement Share Incentive Plan and the 2021 Inducement Share Incentive Plan)

options to purchase an aggregate of 477,045 of our ordinary shares that were granted as inducements were outstanding with a weighted average remaining term of 8.6 years and a weighted average exercise price of $7.72 per share; and

no ordinary shares available for future issuance under our 2019 Inducement Share Incentive Plan and 116,120 ordinary shares available for future issuance under our 2021 Inducement Share Incentive Plan.
2020 Plan

options to purchase an aggregate of 418,730 of our ordinary shares, with a weighted average remaining term of 8.6 years and a weighted average exercise price of $4.72 per share;

839,938 RSUs, with a weighted average grant date fair value of $1.61 per share; and

77,683 ordinary shares available for future issuance.
In addition, as of June 24, 2022, (i) options to purchase an aggregate of 592,000 of our ordinary shares had been granted under the Amended 2020 Plan with an exercise price of $0.45 per share, which we refer to as the Contingent Options and (ii) 295,900 share-settled RSUs had been granted under the Amended 2020 Plan, which we refer to as the Contingent RSUs, each, subject to shareholder approval of the Plan Amendment. If shareholder approval of the Plan Amendment is not obtained at the AGM, the Contingent Options will convert automatically into cash-settled share appreciation rights, or SARs, and the Contingent RSUs will convert automatically into cash-settled RSUs.
The shares available for grant, if the Plan Amendment is approved, would facilitate our ability to continue to grant equity incentives which is vital to our ability to fully attract, engage and retain the highly skilled individuals required to support our retention and growth in the highly competitive labor markets in which we compete. The inability to do so could have an adverse impact on our business. Further, if the Plan Amendment is not approved, we may need to increase the cash compensation we offer our non-employee directors, officers and employees, which would reduce the cash resources we have allocated to meeting our business needs and objectives. We therefore strongly believe that the approval of the Plan Amendment is instrumental to our ability to operate our business.
The remainder of this Proposal 3 includes:

Highlights of the Amended 2020 Plan

Reasons Why Shareholders Should Approve the Plan Amendment

Information Regarding Overhang and Dilution; and

Description of the Amended 2020 Plan
Highlights of the Amended 2020 Plan

No Evergreen.   The Amended 2020 Plan does not provide for any automatic increase in the number of ordinary shares available for issuance under the Amended 2020 Plan.
 
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No Liberal Share Recycling.   The Amended 2020 Plan prohibits the re-granting of (i) shares withheld or delivered to satisfy the exercise price of an award or to satisfy tax withholding obligations with respect to awards, (ii) shares that were subject to a SAR and were not issued upon the net settlement or net exercise of such award, or (iii) shares repurchased by the Company on the open market using proceeds from the exercise of an award.

No Repricing of Options or SARs.   The Amended 2020 Plan prohibits the direct or indirect repricing of share options or SARs without shareholder approval.

No Discounted Options or SARs.   All options and SARs must have an exercise or measurement price that is at least equal to the fair market value of the underlying ordinary share on the date of grant.

No Reload Options or SARs.   No options or SARs granted under the Amended 2020 Plan may contain a provision entitling the award holder to the automatic grant of additional options or SARs in connection with any exercise of the original option or SAR.

No Dividend Equivalents on Options or SARs.   No options or SARs granted under the Amended 2020 Plan may provide for the payment or accrual of dividend equivalents.

Dividends & Dividend Equivalents on Restricted Shares, RSUs and Other Share-Based Awards and Other Cash-Based Awards Not Paid Until Award Vests.   Any dividends or dividend equivalents granted with respect to restricted shares, RSUs or other share-based awards and other cash-based awards will be subject to the same restrictions on transfer and forfeitability as the award with respect to which they are granted.

Material Amendments Require Shareholder Approval.   Shareholder approval is required prior to an amendment to the Amended 2020 Plan that would (i) materially increase the number of shares authorized, (ii) expand the types of awards that may be granted, or (iii) materially expand the class of participants eligible to participate.

Limit Applicable to Non-Employee Directors.   The maximum value of shares subject to awards granted under the sub-plan of the Amended 2020 Plan in any fiscal year to an individual non-employee director may not exceed $500,000 in the case of an incumbent director or $1,000,000 in the case of a new director during his or her first year of service and the maximum amount of cash compensation paid in any fiscal year to any individual non-employee director may not exceed $175,000 in the case of an incumbent director or $225,000 in the case of the chairman of our board of directors. Exceptions to these limitations may only be made by a committee of our board of directors in extraordinary circumstances provided that the non-employee director receiving any additional compensation does not participate in the decision to award such compensation.

Administered by an Independent Committee.   The Amended 2020 Plan is administered by our compensation committee, which is made up entirely of independent directors.
Reasons Why Shareholders Should Approve the Plan Amendment
Incents, Retains and Motivates Talent.   It is critical to our ability to execute our business plan that we incent, retain and motivate the best talent in what is a tremendously competitive labor market. Our equity-based compensation program has always been and, if the Plan Amendment is approved, will continue to be a key component in our ability to pay market-competitive compensation to our employees.
Broad-based Eligibility for Equity Awards.   Our equity incentive program is broad-based, with all eligible employees in good standing receiving equity annually as part of our annual performance review based upon level, performance and contribution. Furthermore, since our board of directors typically grants awards to employees that generally vest over a four-year period, employees must generally remain with us in order to realize the potential benefits of their equity awards.
Aligns with our Pay-for-Performance Compensation Philosophy.   We believe that equity-based compensation is fundamentally performance-based. As the value of our shares appreciate, our employees receive greater compensation at the same time that our shareholders are receiving a greater return on their investment. Conversely, if the share price does not appreciate following the grant of an equity award, then our
 
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employees would not receive any compensation in respect of share options and they would receive reduced compensation in respect of RSUs.
Aligns Employee and Director Interests with Shareholder Interests.   Providing a significant portion of our employee and non-employee director compensation in the form of equity directly aligns the interests of those employees and directors with the interests of our shareholders. If the Plan Amendment is approved by shareholders, we will be able to continue granting equity-based incentives that foster this alignment between our employees and non-employee directors and our shareholders.
Consistent with Shareholder Interests and Sound Corporate Governance.   As described under the heading “Highlights of the Amended 2020 Plan” and more thoroughly below, the Amended 2020 Plan was purposefully designed to include features that we believe are consistent with the interests of our shareholders and sound corporate governance.
Information Regarding Overhang and Dilution
In developing our share request for the Plan Amendment and analyzing the impact of utilizing equity as a means of compensation on our shareholders, we considered both our “overhang” and our “burn rate”.
Overhang is a measure of potential dilution which we define as the sum of (i) the total number of shares underlying all equity awards outstanding and (ii) the total number of shares available for future award grants, divided by the sum of (a) the total number of shares underlying all equity awards outstanding, (b) the total number of shares available for future awards and (c) the number of shares outstanding. As of June 24, 2022, there were 1,360,055 shares underlying all option awards outstanding, 881,125 shares underlying all RSU awards outstanding, 77,683 shares available for future award under the 2020 Plan, 116,120 shares available for future award under the 2021 Inducement Share Incentive Plan and the number of ordinary shares outstanding as of June 24, 2022 was 64,333,535. Accordingly, our overhang on June 24, 2022 was 3.6%. If the 7,000,000 additional shares proposed to be authorized for grant under the Amended 2020 Plan are included in the calculation, our overhang on June 24, 2022 would have been 12.8%.
Burn rate provides a measure of the potential dilutive impact of our equity award program which we calculate by dividing the number of shares subject to equity awards granted during the year by the basic weighted average number of shares outstanding. Set forth below is a table that reflects our burn rate for the 2021, 2020 and 2019 calendar years as well as an average over those years.
Calendar Year
Awards
Granted(1)
Basic
Weighted
Average
Number of
Ordinary
Shares
Outstanding
Gross Burn
Rate(2)
2021
1,407,012 43,349,461 3.2%
2020
709,887 12,845,089 5.5%
2019
364,545 7,419,948 4.9%
Three-Year Average
827,148 21,204,832 3.9%
(1)
Awards granted includes shares subject to options and shares subject to RSU awards, in each case counted on a one-for-one basis.
(2)
“Gross burn rate” which we define as the number of equity awards granted in the year divided by the basic weighted average number of ordinary shares outstanding.
Description of the Amended 2020 Plan
The following summary of the Amended 2020 Plan is qualified in its entirety by reference to the 2020 Plan, as proposed to be amended by the Plan Amendment, a copy of which is attached as Appendix B. References to the board of directors in this summary includes the compensation committee of the board of directors or any similar committee appointed by the board of directors to administer the Amended 2020 Plan.
 
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Types of Awards; Shares Available for Awards; Share Counting Rules
The Amended 2020 Plan allows for the issuance of incentive share options intended to qualify under Section 422 of the Code, nonstatutory share options, SARs, restricted shares, RSUs and other share-based awards and other cash-based awards, which we refer to collectively as awards. Subject to adjustment in the event of share splits, share dividends or similar events, awards (any or all of which may be in the form of incentive share options) may be made under the Amended 2020 Plan for up to the sum of (1) 7,930,000 ordinary shares; plus (2) a number of ordinary shares (up to 1,092,548 ordinary shares) which is equal to the sum of the number of our ordinary shares that were available for grant under the 2017 Plan as of immediately prior to the 2020 Annual General Meeting of Shareholders and the number of ordinary shares subject to awards granted under the 2017 Plan and the 2015 Plan that expire, terminate or are otherwise surrendered, cancelled, forfeited or repurchased by us at their original issuance price pursuant to a contractual repurchase right (subject, in the case of incentive share options, to any limitations under the Code).
The sub-plan adopted under the Amended 2020 Plan which governs the awards made under the Amended 2020 Plan to non-employee service providers, provides that the maximum value (calculated based on grant date fair value for financial reporting purposes) of shares subject to awards granted under the sub-plan in any fiscal year to any individual non-employee director may not exceed $500,000 in the case of an incumbent director or $1,000,000 in the case of a new director during his or her first year of service. In addition, the maximum amount of cash compensation paid in any fiscal year to any individual non-employee director may not exceed $175,000 in the case of an incumbent director or $225,000 in the case of the chairman of our board of directors. The committee of our board of directors may make exceptions to these limits for individual non-employee directors in extraordinary circumstances, as the committee may determine in its discretion, provided that the non-employee director receiving such additional compensation may not participate in the decision to award such compensation.
For purposes of counting the number of shares available for the grant of awards under the Amended 2020 Plan, all ordinary shares covered by SARs will be counted against the number of shares available for the grant of awards under the Amended 2020 Plan. However, SARs that may be settled only in cash will not be so counted, and if we grant an SAR in tandem with an option for the same number of ordinary shares and provide that only one such award may be exercised, which we refer to as a tandem SAR, only the shares covered by the option, and not the shares covered by the tandem SAR, will be so counted, and the expiration of one in connection with the other’s exercise will not restore shares to the Amended 2020 Plan.
Shares covered by awards under the Amended 2020 Plan that expire or are terminated, surrendered, or cancelled without having been fully exercised or are forfeited in whole or in part (including as the result of shares subject to such award being repurchased by us at the original issuance price pursuant to a contractual repurchase right) or that result in any shares not being issued (including as a result of an SAR that was settleable either in cash or in ordinary shares actually being settled in cash) will again be available for the grant of awards under the Amended 2020 Plan (subject, in the case of incentive share options, to any limitations under the Code). In the case of the exercise of an SAR, the number of shares counted against the shares available for the grant of awards will be the full number of shares subject to the SAR multiplied by the percentage of the SAR actually exercised, regardless of the number of shares actually used to settle the SAR upon exercise, and the shares covered by a tandem SAR will not again become available for grant upon the expiration or termination of the tandem SAR.
Ordinary shares that are delivered (by actual delivery, attestation, or net exercise) to us by a participant to purchase ordinary shares upon exercise of an award or to satisfy tax withholding obligations with respect to awards (including shares retained from the award creating the tax obligation) will not be added back to the number of shares available for the future grant of awards under the Amended 2020 Plan. Ordinary shares of ours repurchased by us on the open market using the proceeds from the exercise of an award will not increase the number of shares available for future grant of awards under the Amended 2020 Plan.
In connection with a merger or consolidation of an entity with us or our acquisition of property or shares of an entity, our board of directors may grant awards under the Amended 2020 Plan in substitution for any options or other shares or share-based awards granted by such entity or an affiliate thereof on such terms as our board of directors determines appropriate in the circumstances, notwithstanding any limitation
 
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on awards contained in the Amended 2020 Plan. Any such substitute awards will not count against the overall share limit, except as required by Section 422 and related provisions of the Code.
Shares issued under the Amended 2020 Plan may consist in whole or in part of authorized but unissued shares or treasury shares.
Descriptions of Awards.
Options.   Optionees receive the right to purchase a specified number of our ordinary shares at a specified option price and subject to such other terms and conditions as are specified in connection with the option grant. Incentive share options may only be granted to our employees, employees of our present or future parent or subsidiary corporations, and employees of any other entities the employees of which are eligible to receive “incentive share options” as defined in Section 422 of the Code. An option that is not intended to be an “incentive share option” is a “nonstatutory share option”. Options may not be granted at an exercise price that is less than 100% of the fair market value of our ordinary shares on the date of grant; provided, however, that if our board of directors approves the grant of an option with an exercise price to be determined on a future date, the exercise price may not be less than 100% of the fair market value of our ordinary shares on such future date. Under present law, incentive share options may not be granted at an exercise price less than 110% of the fair market value of our ordinary shares on the date of grant in the case of incentive share options granted to optionees holding more than 10% of the total combined voting power of all classes of our shares or any of our subsidiaries. Under the terms of the Amended 2020 Plan, options may not be granted for a term of more than ten years (and, under present law, five years in the case of incentive share options granted to optionees holding greater than 10% of the total combined voting power of all classes of our shares or any of our subsidiaries). The Amended 2020 Plan permits participants to pay the exercise price of options using one or more of the following manners of payment: (i) payment by cash, by check or, (ii) except as may otherwise be provided in the applicable option agreement or approved by our board of directors, in connection with a “cashless exercise” through a broker, (iii) to the extent provided in the applicable option agreement or approved by our board of directors, and subject to certain conditions, by delivery of ordinary shares to us owned by the participant valued at their fair market value, (iv) except for awards made to non-employee participants, to the extent provided in an applicable nonstatutory share option agreement or approved by our board of directors, by delivery of a notice of “net exercise” as a result of which we will retain a number of ordinary shares otherwise issuable pursuant to the share option equal to the aggregate exercise price for the portion of the option being exercised divided by the fair market value of an ordinary share of ours on the date of exercise, (v) to the extent permitted by applicable law and provided for in the applicable option agreement or approved by our board of directors, by payment of any other lawful consideration as our board of directors may determine, or (vi) by any combination of these forms of payment. No option granted under the Amended 2020 Plan may contain any provision entitling the participant to the automatic grant of additional options in connection with the exercise of the original option nor may any option granted under the Amended 2020 Plan provide for the payment or accrual of dividend equivalents.
Share Appreciation Rights.   An SAR is an award entitling the holder, upon exercise, to receive a number of ordinary shares, or cash (or a combination of our ordinary shares and cash) determined by reference to appreciation, from and after the date of grant, in the fair market value of an ordinary share over the measurement price. The Amended 2020 Plan provides that the measurement price of an SAR may not be less than 100% of the fair market value of our ordinary shares on the date the SAR is granted (provided, however, that if our board of directors approves the grant of an SAR effective as of a future date, the measurement price may not be less than 100% of the fair market value on such future date) and that SARs may not be granted with a term in excess of 10 years. No SAR granted under the Amended 2020 Plan may contain any provision entitling the participant to the automatic grant of additional SARs in connection with any exercise of the original SAR nor may any SAR granted under the Amended 2020 Plan provide for the payment or accrual of dividend equivalents.
Limitation on Repricing of Options and SARs.   With respect to options and SARs, unless such action is approved by our shareholders or otherwise permitted under the terms of the Amended 2020 Plan in connection with certain changes in capitalization and reorganization events, we may not (1) amend any outstanding option or SAR granted under the Amended 2020 Plan to provide an exercise price or
 
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measurement price per share that is lower than the then-current exercise price or measurement price per share of such outstanding option or SAR, (2) cancel any outstanding option or SAR (whether or not granted under the Amended 2020 Plan) and grant in substitution therefor new awards under the Amended 2020 Plan (other than certain substitute awards described above) covering the same or a different number of ordinary shares and having an exercise price or measurement price per share lower than the then-current exercise price or measurement price per share of the canceled option or SAR, (3) cancel in exchange for a cash payment any outstanding option or SAR with an exercise price or measurement price per share above the then-current fair market value of an ordinary share of ours, or (4) take any other action under the Amended 2020 Plan that constitutes a “repricing” within the meaning of the rules of the Nasdaq Stock Market.
Restricted Shares.   Restricted shares entitle recipients to acquire ordinary shares, subject to our right to repurchase all or part of such shares at their issue price or other stated or formula price (or to require forfeiture of such shares if issued at no cost) in the event that the conditions specified in the applicable award are not satisfied prior to the end of the applicable restriction period established for such award. Unless otherwise provided in the applicable award agreement, any dividend declared and paid by us with respect to restricted shares will be paid to the participant only if and when such shares become free from any applicable restrictions on transferability and forfeitability. No interest will be paid on any such dividend payments.
Restricted Share Units.   RSUs entitle the recipient to receive ordinary shares, or cash equal to the fair market value of such shares, or a combination of cash and shares, to be delivered at the time such award vests and settles pursuant to the terms and conditions established by our board of directors. Our board of directors may provide that settlement of an RSU will be deferred, on a mandatory basis or at the election of the participant in a manner that complies with Section 409A of the Code. A participant has no voting rights with respect to any RSU. Our board of directors may provide that a grant of RSUs may provide the participant with the right to receive an amount equal to any dividends or other distributions declared and paid on an equal number of outstanding ordinary shares. Any such dividend equivalents may be paid currently or credited to an account for the participant, may be settled in cash and/or ordinary shares and will be subject to the same restrictions on transfer and forfeitability as the RSUs with respect to which such dividend equivalents are paid, in each case to the extent provided in the award agreement. No interest will be paid on any such dividend equivalents.
Other Share-Based Awards and Other Cash-Based Awards.   Under the Amended 2020 Plan, our board of directors may grant other awards of ordinary shares, and other awards that are valued in whole or in part by reference to, or are otherwise based on, ordinary shares or other property, having such terms and conditions as our board of directors may determine. We refer to these types of awards as other share-based awards. Other share-based awards may be available as a form of payment in settlement of other awards granted under the Amended 2020 Plan or as payment in lieu of compensation to which a participant is otherwise entitled. Other share-based awards may be paid in ordinary shares or in cash, as our board of directors may determine. Our board of directors may also grant awards under the Amended 2020 Plan that are denominated in, or settled in, cash rather than in ordinary shares, having such terms and conditions as our board of directors may determine. We refer to these types of awards as other cash-based awards. The award agreement for an other share-based award or an other cash-based award may provide participants with the right to receive dividend equivalents. Such dividend equivalents may be paid currently or credited to an account for the participant, may be settled in cash and/or ordinary shares and will be subject to the same restrictions on transfer and forfeitability as the other share-based award or other cash-based award with respect to which it is paid, in each case to the extent provided in the award agreement. No interest will be paid on any such dividend equivalents.
Performance Awards.   Awards under the Amended 2020 Plan may be made subject to the achievement of performance goals. We refer to such awards as performance awards. For any such award, the board may specify that the degree of granting, vesting and/or payout of an award will be subject to the achievement of one or more objective performance measures, which will be based on the relative or absolute attainment of specified levels of one or any combination of the following, which may be determined pursuant to generally accepted accounting principles, or GAAP, or on a non-GAAP basis, as determined by our board of directors: net income, earnings before or after discontinued operations, interest, taxes, depreciation and/or amortization, operating profit before or after discontinued operations and/or taxes, sales, sales growth,
 
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earnings growth, cash flow or cash position, gross margins, share price, market share, return on sales, assets, equity or investment, improvement of financial ratings, achievement of balance sheet or income statement objectives, total shareholder return or any other performance measure selected by our board of directors.
Such performance goals may reflect absolute entity or business unit performance or a relative comparison to the performance of a peer group of entities or other external measure of the selected performance criteria and may be absolute in their terms or measured against or in relationship to other companies comparably, similarly or otherwise situated. The board may specify that such performance measures will be adjusted to exclude any one or more of (i) non-recurring or unusual gains or losses, (ii) gains or losses on the dispositions of discontinued operations, (iii) the cumulative effects of changes in accounting principles, (iv) the writedown of any asset, (v) fluctuation in foreign currency exchange rates, (vi) charges for restructuring and rationalization programs or (vii) any other adjustment determined by the board. Such performance measures (x) may vary by participant and may be different for different awards, (y) may be particular to a participant or the department, branch, line of business, subsidiary or other unit in which the participant works and may cover such period as may be specified by the board, and (z) will be set by the board at such time as it may determine, in its discretion. The board may adjust upwards or downwards, the number of shares or cash payable pursuant to such a performance award, and the board may waive the achievement of applicable performance measures in any circumstance, including in the case of the death or disability of the participant or a change in control of us. In addition, the board may impose such other restrictions on performance awards as it may deem necessary or appropriate.
Transferability of Awards
Awards may not be sold, assigned, transferred, pledged or otherwise encumbered by granted participant, either voluntarily or by operation of law, except by will or the laws of descent and distribution or, other than in the case of an incentive share option, pursuant to a qualified domestic relations order. During the life of the participant, awards are exercisable only by the participant. However, except with respect to awards that are subject to Section 409A, our board of directors may permit or provide in an award for the gratuitous transfer of the award by the participant to or for the benefit of any immediate family member, family trust or other entity established for the benefit of the participant and/or an immediate family member thereof if, with respect to such proposed transferee, we would be eligible to use a Form S-8 for the registration of the sale of the ordinary shares subject to such award under the Securities Act of 1933, as amended. Further, we are not required to recognize any such transfer until such time as the permitted transferee has, as a condition to such transfer, delivered to us a written instrument in form and substance satisfactory to us confirming that such transferee will be bound by all of the terms and conditions of the award. Nothing in the Amended 2020 Plan restricts a participant from making a transfer to us.
Eligibility to Receive Awards
All of our employees and officers, as well as our consultants, advisors and non-employee directors pursuant to the terms of a sub-plan established under the Amended 2020 Plan, are eligible to receive awards under the Amended 2020 Plan. However, incentive share options may only be granted to our employees, employees of our present or future parent or subsidiary corporations, and employees of any other entities the employees of which are eligible to receive incentive share options under the Code.
Plan Benefits
As of June 24, 2022, approximately 98 persons were eligible to receive awards under the 2020 Plan, including the Company’s 76 employees (excluding officers), 5 officers (all of whom are also employees), 7 non-employee directors, 10 consultants and no advisors.
The granting of awards under the Amended 2020 Plan is discretionary, and we cannot now determine the number or type of awards to be granted in the future to any particular person or group other than as set forth below. We intend to grant each of our non-employee directors an option to purchase 13,000 shares and an award of 6,500 RSUs in 2022 under the terms of our non-employee director compensation policy. In addition, subject to shareholder approval of the Plan Amendment, the board of directors intends to grant to each of Lisa Dalton and Mark Corrigan, whom joined our board of directors in June 2021, an option to purchase 94,500 of our ordinary shares. The purpose of the intended grant is to provide the directors with
 
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option awards over an aggregate of 105,000 ordinary shares, when taken together with the option award for 10,500 ordinary shares that each received upon their initial election to our board of directors in June 2021, which is the amount of the option award that each would have received had they been elected in July 2021 under our non-employee director compensation policy then in effect. Based upon our current non-employee director compensation policy, future awards of options to purchase shares and awards of RSUs will be made to non-employee directors in years subsequent to 2022, but our non-employee director compensation program is updated from time-to-time and, as such, awards under such program are not currently determinable beyond 2022. In addition, on January 28, 2022 our board of directors granted (i) options to purchase an aggregate of 592,000 ordinary shares under the Amended 2020 Plan to six employees, including our named executive officers and (ii) an aggregate of 295,900 share-settled RSUs under the Amended 2020 Plan to six employees, including our named executive officers, subject to our receipt of shareholder approval of the Plan Amendment. If shareholder approval of the Plan Amendment is not obtained at the AGM, the Contingent Options will convert automatically into cash-settled SARs and the Contingent RSUs will convert automatically into cash-settled RSUs.
Name and Position
Number of
Ordinary
Shares Subject
to Options
Dollar
Value ($)
Number of
Ordinary
Shares
Underlying
RSUs
Named Executive Officers:
Theodore Schroeder
Chief Executive Officer
239,800(1)
119,900(2)
Steven Gelone
President and Chief Operating Officer
93,400(1)
46,700(2)
Daniel Dolan
Chief Financial Officer
83,200(1)
41,600(2)
All current executive officers, as a group
551,100(1)
275,500(2)
All current directors who are not executive officers, as a group (3)
280,000
45,000
All employees, including all current officers who are not executive officers, as a group
40,900
20,400
(1)
Each of these option awards has a grant date of January 28, 2022 and will vest over a four-year period beginning on the date of grant. Twenty-five percent (25%) of each option award will vest on the one (1) year anniversary of the date of grant and the remaining seventy-five percent (75%) of each option award will vest on a monthly pro-rata basis over the remaining vesting period. The exercise price per share for these share option awards was the closing sale price of our ordinary shares on the Nasdaq Global Select Market on the grant date. Each of the option awards is subject to such officer’s continued employment with us and the other terms and conditions under the 2020 Plan. If shareholder approval of the Plan Amendment is not obtained, these options will remain outstanding and will convert into cash-settled share appreciation rights.
(2)
Each of these RSUs has a grant date of January 28, 2022 and will vest in equal annual installments over four years with the first installment vesting on January 28, 2023. Each of the RSU awards is subject to such officer’s continued employment with us and the other terms and conditions under the 2020 Plan. If shareholder approval of the Plan Amendment is obtained, each of these RSUs will represent a contingent right to receive one ordinary share. If shareholder approval of the Plan Amendment is not obtained, each of these RSUs will represent the right to receive the economic equivalent of one ordinary share in cash on the applicable vesting date.
(3)
Represents the intended (i) share option award to purchase 94,500 of our ordinary shares to each of Lisa Dalton and Mark Corrigan and (ii) annual share option and RSU awards to be granted in 2022 to each non-employee director. Under our non-employee director compensation policy, each non-employee director will receive an annual grant of an option to purchase 13,000 shares and 6,500 RSUs. The share options to be granted to our non-employee directors under our non-employee director compensation policy have an exercise price equal to the fair market value of our ordinary shares on the
 
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date of grant and will expire ten years after the date of grant. The annual share options granted to directors will vest, subject to such director’s continued service on the board, fully on the last date of the month of the first anniversary of the grant date. The annual RSUs awarded to directors will vest, subject to such director’s continued service on the board, fully on the last date of the month of the first anniversary of the grant date. Excludes (i) options and RSUs that the non-employee directors will be entitled to receive under our non-employee director compensation policy for subsequent years following 2022 and (ii) any discretionary awards that any non-employee director may be awarded under the Amended 2020 Plan.
On June 24, 2022, the last reported sale price of our ordinary shares at the close of business on the Nasdaq Global Market was $0.204. Based solely on the last reported sale price of our ordinary shares on Nasdaq on June 24, 2022, and the maximum number of shares that would have been available for awards under the Amended 2020 Plan as of June 24, 2022, taking into account the approval of the Plan Amendment described herein, the maximum aggregate market value of the ordinary shares that could potentially be issued under the Amended 2020 Plan is $1.7 million.
Awards Granted under the 2020 Plan
Since adoption of the 2020 Plan through June 24, 2022, the following number of equity awards have been granted to the individuals and groups described in the table below:
Name and Position
Number of
Ordinary
Shares Subject to
Options Granted
Number of
Ordinary
Shares Underlying
RSUs Granted
Named Executive Officers:
Theodore Schroeder
Chief Executive Officer
308,550 237,400
Steven Gelone
President and Chief Operating Officer
147,650 391,522
Daniel Dolan
Chief Financial Officer
83,200 41,600
Each Nominee for Election as a Director that Is Not a Named Executive Officer:
Daniel Burgess
38,500 19,250
Colin Broom
38,500 19,250
Carrie Bourdow
38,500 19,250
Lisa Dalton
45,500 17,500
Charles A. Rowland Jr.
38,500 19,250
Stephen Webster
38,500 19,250
Mark Corrigan
45,500 17,500
Each other person who received 5% of options or rights granted under the 2020 Plan, if any
134,700 67,300
Each associate of our directors, executive officers or nominees
All current executive officers, as a group (5 individuals)
674,100 697,822
All current directors who are not executive officers, as a group
283,500 122,500
All employees, including all current officers who are not executive officers,
as a group
120,205 446,962
Administration
The Amended 2020 Plan will be administered by our board of directors. Our board of directors has the authority to grant awards, to adopt, amend and repeal the administrative rules, guidelines and practices
 
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relating to the Amended 2020 Plan that it deems advisable and to construe and interpret the provisions of the Amended 2020 Plan and any award agreements entered into under the Amended 2020 Plan. Our board of directors may correct any defect, supply any omission or reconcile any inconsistency in the Amended 2020 Plan or any award. All actions and decisions by our board of directors with respect to the Amended 2020 Plan and awards made under the Amended 2020 Plan will be made in our board of directors’ discretion and will be final and binding on all persons having or claiming any interest in the Amended 2020 Plan or in any award. To the extent permitted by applicable law, our board of directors may delegate any or all of its powers under the Amended 2020 Plan to one or more committees or subcommittees of our board of directors.
In addition, subject to any requirements of applicable law, our board of directors may delegate to one or more of our officers the power to grant awards (subject to any limitations under the Amended 2020 Plan) to our employees or officers and to exercise such other powers under the Amended 2020 Plan as our board of directors may determine. Our board will fix the terms of any awards to be granted by such officers, the maximum number of shares subject to awards that the officers may grant, and the time period in which such awards may be granted. No officer will be authorized to grant awards to any “executive officer” of ours (as defined by Rule 3b-7 under the Securities Exchange Act of 1934, or, the Exchange Act) or to any “officer” of ours (as defined by Rule 16a-1 under the Exchange Act).
Notwithstanding the foregoing, awards made under the Amended 2020 Plan to non-employee directors will be granted and administered by a committee, all of the members of which are independent directors as defined by 5605(a)(2) of the Nasdaq Marketplace Rules.
Subject to any applicable limitations contained in the Amended 2020 Plan (including with respect to performance awards), our board of directors generally selects the recipients of awards and determines the following with respect to such awards:

the number of ordinary shares, cash or other consideration covered by awards and the terms and conditions of such awards, including the dates upon which such awards becomes exercisable or otherwise vest;

the exercise or measurement price of awards, if any;

the duration of awards; and

the effect on awards of a change in control of us.
Except as otherwise provided by the Amended 2020 Plan, each award under the Amended 2020 Plan may be made alone or in addition or in relation to any other award. The terms of each award need not be identical, and our board of directors need not treat participants uniformly. Our board will determine the effect on an award of the disability, death, termination or other cessation of employment, office or services, authorized leave of absence or other change in the employment or other status of a participant, and the extent to which, and the period during which, the participant (or the participant’s legal representative, conservator, guardian or designated beneficiary) may exercise rights, or receive any benefits, under the award.
Notwithstanding any other provision of the Amended 2020 Plan, (a) we are not obliged to issue any ordinary shares pursuant to an award unless at least the par value of such newly issued ordinary share has been fully paid in advance in accordance with all applicable law (which requirement may mean the holder of an award is obliged to make such payment) and (b) we are not obligated to deliver any ordinary shares pursuant to the Amended 2020 Plan or to remove restrictions from shares previously issued or delivered under the Amended 2020 Plan until (i) all conditions of the award have been met or removed to our satisfaction, (ii) in the opinion of our counsel, all other legal matters in connection with the issuance and delivery of such shares have been satisfied, including any applicable securities laws and regulations and any applicable stock exchange or stock market rules and regulations, and (iii) the participant has executed and delivered to us such representations or agreements as we may consider appropriate to satisfy the requirements of any applicable laws, rules or regulations.
Our board of directors may at any time provide that any award granted under the Amended 2020 Plan shall become immediately exercisable in whole or in part, free from some or all restrictions or conditions or otherwise realizable in whole or in part, as the case may be.
 
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In the event of any alternation or reorganization whatsoever taking place in our capital structure whether by way of share split, reverse share split, share dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other similar change in capitalization or event, or any dividend or distribution to holders of our ordinary shares, other than an ordinary cash dividend, we are required to make equitable adjustments (or make substituted awards, as applicable), in the manner determined by our board of directors, to (i) the number and class of securities available under the Amended 2020 Plan, (ii) the share counting rules, (iii) the number and class of securities and exercise price per share of each outstanding option, (iv) the share- and per-share provisions and the measurement price of each outstanding SAR, (v) the number of shares subject to and the repurchase price per share subject to each outstanding award of restricted shares, and (vi) the share-and per-share-related provisions and the purchase price, if any, of each outstanding RSU and each other share-based award.
We will, subject to applicable law and the terms of our constitutional documents, indemnify and hold harmless each director, officer, employee or agent to whom any duty or power relating to the administration or interpretation of the Amended 2020 Plan has been or will be delegated against any cost or expense (including attorneys’ fees) or liability (including any sum paid in settlement of a claim with our board of directors’ approval) arising out of any act or omission to act concerning the Amended 2020 Plan unless arising out of such person’s own fraud or bad faith.
In accepting an award granted under the Amended 2020 Plan, a participant agrees to be bound by any clawback policy that we have in effect or may adopt in future.
Amendment of Awards.   Except as otherwise provided under the Amended 2020 Plan with respect to repricing outstanding share options or SARs, our board of directors may amend, modify or terminate any outstanding award, including but not limited to, substituting the award for another award of the same or a different type, changing the date of exercise or realization, and converting an incentive share option to a nonstatutory share option, provided that the participant’s consent to any such action will be required unless our board of directors determines that the action, taking into account any related action, does not materially and adversely affect the participant’s rights under the Amended 2020 Plan or the change is otherwise permitted under the terms of the Amended 2020 Plan in connection with a change in capitalization or reorganization event.
Reorganization Events
The Amended 2020 Plan contains provisions addressing the consequences of any reorganization event. A reorganization event is defined under the Amended 2020 Plan as (a) any merger or consolidation of us with or into another entity as a result of which all of our ordinary shares are converted into or exchanged for the right to receive cash, securities or other property, or are cancelled, (b) any transfer or disposition of all of our ordinary shares for cash, securities or other property pursuant to a share exchange or other transaction or (c) our liquidation or dissolution; any one of which, (a), (b) or (c), may be effected pursuant to the laws of the Republic of Ireland.
Consequences of Reorganization Event on Awards Other than Restricted Shares.   Under the Amended 2020 Plan, if a reorganization event occurs, our board of directors may take any one or more of the following actions as to all or any (or any portion of) outstanding awards other than restricted shares on such terms as our board of directors determines (except to the extent specifically provided otherwise in an applicable award agreement or another agreement between a participant and us): (1) provide that such awards will be assumed, or substantially equivalent awards will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), (2) upon written notice to a participant, provide that all of the participant’s unvested awards will be forfeited immediately prior to the consummation of such reorganization event and/or that all of the participant’s unexercised awards will terminate immediately prior to the consummation of such reorganization event unless exercised by the participant (to the extent then exercisable) within a specified period following the date of such notice, (3) provide that outstanding awards will become exercisable, realizable, or deliverable, or restrictions applicable to an award will lapse, in whole or in part prior to or upon such reorganization event, (4) in the event of a reorganization event under the terms of which holders of our ordinary shares will receive, upon consummation thereof, a cash payment for each share surrendered in the reorganization event, which we refer to as the Acquisition Price, make or provide for a cash payment to participants with respect to each award held by a participant equal to (A) the number of ordinary shares
 
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subject to the vested portion of the award (after giving effect to any acceleration of vesting that occurs upon or immediately prior to such reorganization event) multiplied by (B) the excess, if any, of (I) the Acquisition Price over (II) the exercise, measurement or purchase price of such award and any applicable tax withholdings, in exchange for the termination of such award, (5) provide that, in connection with our liquidation or dissolution, awards will convert into the right to receive liquidation proceeds (if applicable, net of the exercise, measurement or purchase price thereof and any applicable tax withholdings) and (6) any combination of the foregoing. Our board of directors is not obligated to treat all awards, all awards held by a participant, or all awards of the same type, identically.
The Amended 2020 Plan also provides, however, that for RSUs that are subject to Section 409A of the Code: (A) if the applicable RSU agreement provides that the RSUs will be settled upon a “change in control event” within the meaning of Treasury Regulation Section 1.409A-3(i)(5)(i), and the reorganization event constitutes such a “change in control event,” then no assumption or substitution of the RSU will be permitted, and the RSUs will instead be settled in accordance with the terms of the applicable RSU agreement; and (B) our board of directors may only undertake the actions set forth in clauses (3), (4) or (5) above if the reorganization event is a “change in control event” as so defined under the Treasury Regulation and such action is permitted or required by Section 409A of the Code. If the reorganization event does not constitute a “change in control event” as defined in the Treasury Regulation or such action is not permitted or required by Section 409A of the Code, and the acquiring or succeeding corporation does not assume or substitute the RSUs pursuant to clause (1) above, then the unvested RSUs will terminate immediately prior to the consummation of the reorganization event without any payment in exchange for the RSUs.
Consequences of Reorganization Event on Restricted Shares.   Upon the occurrence of a reorganization event other than our liquidation or dissolution, our repurchase and other rights with respect to outstanding restricted shares will inure to the benefit of our successor and will, unless our board of directors determines otherwise, apply to the cash, securities or other property which our ordinary shares were converted into or exchanged for pursuant to such reorganization event in the same manner and to the same extent as they applied to such restricted shares. However, our board of directors may provide for termination or deemed satisfaction of such repurchase or other rights under the instrument evidencing any restricted shares or any other agreement between a participant and us, either initially or by amendment, or provide for forfeiture of such restricted shares if issued at no cost. Upon the occurrence of a reorganization event involving our liquidation or dissolution, except to the extent specifically provided to the contrary in the instrument evidencing any award of restricted shares or any other agreement between the participant and us, all restrictions and conditions on all restricted shares then outstanding will automatically be deemed terminated or satisfied.
Authorization of Sub-Plans
Our board of directors may from time to time establish one or more sub-plans under the Amended 2020 Plan for purposes of satisfying applicable securities, tax or other laws of various jurisdictions. Our board of directors will establish such sub-plans by adopting supplements to the Amended 2020 Plan containing any limitations on our board of directors’ discretion under the Amended 2020 Plan or any additional terms and conditions not otherwise inconsistent with the Amended 2020 Plan that our board of directors deems necessary or desirable. All supplements adopted by our board of directors will be deemed to be part of the Amended 2020 Plan, but each supplement will apply only to participants within the affected jurisdiction.
Amendment or Termination
No awards may be granted under the Amended 2020 Plan after July 28, 2030, but awards previously granted may extend beyond that date. Our board of directors may amend, suspend or terminate the Amended 2020 Plan or any portion thereof at any time, except that (i) no amendment that would require shareholder approval under the rules of the national securities exchange on which we then maintain our primary listing may be made effective unless and until such amendment has been approved by our shareholders and (ii) if the national securities exchange on which we then maintain our primary listing does not have rules regarding when shareholder approval of amendments to equity compensation plans is required (or if our ordinary shares are not then listed on any national securities exchange), then no amendment to the Amended 2020 Plan
 
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(A) materially increasing the number of shares authorized under the Amended 2020 Plan (other than pursuant to terms of the Amended 2020 Plan), (B) expanding the types of awards that may be granted under the Amended 2020 Plan, or (C) materially expanding the class of participants eligible to participate in the Amended 2020 Plan will be effective unless and until our shareholders approve such amendment. If at any time the approval of our shareholders is required as to any other modification or amendment under Section 422 of the Code or any successor provision with respect to incentive share options, our board of directors may not effect such modification or amendment without such approval. Unless otherwise specified in the amendment, any amendment to the Amended 2020 Plan adopted in accordance with the procedures described above will apply to, and be binding on the holders of, all awards outstanding under Amended 2020 Plan at the time the amendment is adopted, provided that our board of directors determines that such amendment, taking into account any related action, does not materially and adversely affect the rights of participants under the Amended 2020 Plan.
If shareholders do not approve the Amended 2020 Plan, no additional shares will be made available for grant under the Plan Amendment. In this event, the board of directors will consider whether to adopt alternative arrangements based on its assessment of our needs.
Federal Income Tax Consequences
The following is a summary of the United States federal income tax consequences that generally will arise with respect to awards granted under the Amended 2020 Plan. This summary is based on the federal tax laws in effect as of the date of this proxy statement. In addition, this summary assumes that all awards are exempt from, or comply with, the rules under Section 409A of the Code regarding nonqualified deferred compensation. Changes to these laws or assumptions could alter the tax consequences described below.
Incentive Share Options
A participant will not have income upon the grant of an incentive share option. Also, except as described below, a participant will not have income upon exercise of an incentive share option if the participant has been employed by us or our corporate parent or 50% or more-owned corporate subsidiary at all times beginning with the option grant date and ending three months before the date the participant exercises the option. If the participant has not been so employed during that time, then the participant will be taxed as described below under “Nonstatutory Share Options.” The exercise of an incentive share option may subject the participant to the alternative minimum tax.
A participant will have income upon the sale of the shares acquired under an incentive share option at a profit (if sales proceeds exceed the exercise price). The type of income will depend on when the participant sells the shares. If a participant sells the shares more than two years after the option was granted and more than one year after the option was exercised, then all of the profit will be long-term capital gain. If a participant sells the shares prior to satisfying these waiting periods, then the participant will have engaged in a disqualifying disposition and a portion of the profit will be ordinary income and a portion may be capital gain. This capital gain will be long-term if the participant has held the shares for more than one year and otherwise will be short-term. If a participant sells the shares at a loss (sales proceeds are less than the exercise price), then the loss will be a capital loss. This capital loss will be long-term if the participant held the shares for more than one year and otherwise will be short-term.
Nonstatutory Share Options
A participant will not have income upon the grant of a nonstatutory share option. A participant will have compensation income upon the exercise of a nonstatutory share option equal to the fair market value of the shares on the day the participant exercised the option less the exercise price. Upon sale of the shares, the participant will have capital gain or loss equal to the difference between the sales proceeds and the fair market value of the shares on the day the option was exercised. This capital gain or loss will be long-term if the participant has held the shares for more than one year and otherwise will be short-term.
Share Appreciation Rights
A participant will not have income upon the grant of an SAR. A participant generally will recognize compensation income upon the exercise of an SAR equal to the amount of the cash and the fair market
 
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value of any shares received. Upon the sale of the shares, the participant will have capital gain or loss equal to the difference between the sales proceeds and the value of the shares on the day the SAR was exercised. This capital gain or loss will be long-term if the participant held the shares for more than one year and otherwise will be short-term.
Restricted Shares
A participant will not have income upon the grant of restricted shares unless an election under Section 83(b) of the Code is made within 30 days of the date of grant. If a timely Section 83(b) election is made, then a participant will have compensation income equal to the fair market value of the shares less the purchase price, if any. When the shares are sold, the participant will have capital gain or loss equal to the difference between the sales proceeds and the fair market value of the shares on the date of grant. If the participant does not make a Section 83(b) election, then when the shares vest the participant will have compensation income equal to the fair market value of the shares on the vesting date less the purchase price, if any. When the shares are sold, the participant will have capital gain or loss equal to the sales proceeds less the fair market value of the shares on the vesting date. Any capital gain or loss will be long-term if the participant held the shares for more than one year and otherwise will be short-term.
RSUs
A participant will not have income upon the grant of an RSU. A participant is not permitted to make a Section 83(b) election with respect to an RSU award. When shares are delivered with respect to the RSUs (which may be upon vesting or may be at a later date), the participant will have income on the settlement date in an amount equal to the fair market value of the shares on such date less the purchase price, if any. When the shares are sold, the participant will have capital gain or loss equal to the sales proceeds less the value of the shares on the settlement date. Any capital gain or loss will be long-term if the participant held the shares for more than one year and otherwise will be short-term.
Other Share-Based Awards and Other Cash-Based Awards
The tax consequences associated with any other share-based award or any other cash-based award granted under the Amended 2020 Plan will vary depending on the specific terms of such award. Among the relevant factors are whether or not the award has a readily ascertainable fair market value, whether or not the award is subject to forfeiture provisions or restrictions on transfer, the nature of the property to be received by the participant under the award and the participant’s holding period and tax basis for the award or underlying ordinary shares.
Tax Consequences to Us
There will be no tax consequences to us with respect to awards made under the Amended 2020 Plan, except that we will be entitled to a deduction when a participant has compensation income. Any such deduction will be subject to the limitations of Section 162(m) of the Code.
OUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR THE APPROVAL OF THE AMENDMENT TO THE 2020 SHARE INCENTIVE PLAN, AS AMENDED, BY VOTING FOR PROPOSAL 3.
Proposal 4:   Advisory Vote on Named Executive Officer Compensation
We are providing our shareholders the opportunity to vote to approve, on an advisory, non-binding basis, the compensation of our named executive officers as disclosed in this proxy statement in accordance with the SEC’s rules. This proposal, which is commonly referred to as “say-on-pay,” is required by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, which we refer to as the Dodd-Frank Act, which added Section 14A to the Exchange Act.
Our executive compensation programs are designed to attract, motivate and retain our executive officers, who are critical to our success. Under these programs, our named executive officers are rewarded for the achievement of our short-term and longer-term financial and strategic goals and for driving corporate
 
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financial performance and stability. The programs contain elements of cash and equity-based compensation and are designed to align the interests of our executives with those of our shareholders.
The “Executive and Director Compensation” section of this proxy statement describes in detail our executive compensation programs and the decisions made by our compensation committee and board of directors. Highlights of our executive compensation program include the following:

Competitive, market-based salaries, with annual adjustments;

Cash bonuses, payable at the discretion of board and assessed on individual and company performance on an annual basis; and

Equity awards to incentivize long-term value creation.
As we describe in the “Executive and Director Compensation” section, our executive compensation program embodies a pay-for-performance philosophy that supports our business strategy and seeks to align the interests of our executives with our shareholders. The board believes this link between compensation and the achievement of our near- and long-term business goals has helped drive our performance over time. At the same time, we believe our program does not encourage excessive risk-taking by management.
Our board of directors is asking shareholders to approve a non-binding advisory vote on the following resolution:
RESOLVED, that the compensation paid to the Company’s named executive officers, as disclosed pursuant to the compensation disclosure rules of the Securities and Exchange Commission, including the compensation tables and any related material disclosed in this proxy statement, is hereby approved.”
As an advisory vote, this proposal is not binding. The outcome of this advisory vote does not (1) overrule any decision by the Company or the board of directors (or any committee thereof), (2) create or imply any change to the fiduciary duties of the Company or the board of directors (or any committee thereof), or (3) create or imply any additional fiduciary duties for the Company or the board of directors (or any committee thereof). However, our compensation committee and board value the opinions expressed by our shareholders in their vote on this proposal and will consider the outcome of the vote when making future compensation decisions.
OUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE TO APPROVE THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS BY VOTING FOR PROPOSAL 4.
Proposal 5:   To Approve a Reverse Stock Split
Background to and Reasons for the Reverse Stock Split Proposal
Our board of directors is seeking approval for a reverse stock split with the primary purpose of increasing the price of our ordinary shares in order to meet the price criteria for continued listing on the Nasdaq Stock Market, or Nasdaq, if our board of directors determines that it is necessary to do so by implementing a reverse stock split.
On January 4, 2022, we received written notice from Nasdaq, notifying us that, for the previous 30 consecutive business days, the bid price for our ordinary shares had closed below the minimum $1.00 per share requirement for continued inclusion on the Nasdaq Global Select Market pursuant to Nasdaq Listing Rule 5450(a)(1), or the Bid Price Rule. In accordance with Nasdaq Listing Rule 5810(c)(3)(A), we have a period of 180 calendar days (the “Initial Compliance Period”), or until July 5, 2022, to regain compliance with the Bid Price Rule. To regain compliance during the Initial Compliance Period, the closing bid price of our ordinary shares will have to be at least $1.00 per share for a minimum of 10 consecutive business days. We have determined that we will not regain compliance with the Bid Price Rule during the Initial Compliance period.
In accordance with Nasdaq rules, we have sought an additional 180-day period, or the Extended Compliance Period, or until January 2, 2023, or the Extended Compliance Date, in which to regain compliance with the Bid Price Rule, which requires that we transfer the listing of our ordinary shares to the
 
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Nasdaq Capital Market, meet the continued listing requirement for market value of publicly held shares and all other initial listing standards for the Nasdaq Capital Market, with the exception of the Bid Price Rule, and provide written notice to Nasdaq, which we delivered on June 23, 2022, of our intention to cure the deficiency during the Extended Compliance Period, by effecting a reverse share split, if necessary.
If we are granted an Extended Compliance Period and do not regain compliance with the Bid Price Rule by the Extended Compliance Date, Nasdaq will provide written notification to us that our ordinary shares may be delisted. At that time, we may appeal Nasdaq’s delisting determination to a Nasdaq Listing Qualifications Panel, or the Panel. We expect that our ordinary shares would remain listed pending the Panel’s decision. There can be no assurance that, if we do appeal the delisting determination by Nasdaq to the Panel, such appeal would be successful.
In the event we are delisted from Nasdaq, the only established trading market for our ordinary shares would be eliminated and we would be forced to list our shares on the OTC Markets or another quotation medium, depending on our ability to meet the specific listing requirements of those quotation systems. As a result, an investor would likely find it more difficult to trade, or to obtain accurate price quotations for, our shares. Delisting would likely also reduce the visibility, liquidity and value of our ordinary shares, including as a result of reduced institutional investor interest in our company, and may increase the volatility of our ordinary shares. Delisting could also cause a loss of confidence of potential industry partners, lenders and employees, which could further harm our business and our future prospects. We believe that effecting a reverse stock split may, if necessary, help us avoid delisting from Nasdaq and any resulting consequences.
Accordingly, on January 28, 2022, our board of directors unanimously approved a shareholder proposal to approve a reverse stock split of our share capital by way of the consolidation of a number of ordinary shares that is not less than 10 ordinary shares and not more than 25 ordinary shares into one ordinary share of such nominal value as is proportionate to the consolidation ratio (as determined by our board of directors in its absolute discretion), which nominal value shall not be less than $0.10 each (nominal value) and not more than $0.25 each (nominal value) in the capital of the Company, and the subsequent immediate reduction in the nominal value of each of the authorized but unissued and authorized and issued ordinary shares from the aforementioned nominal value (as reflects the share consolidation ratio chosen by the board of directors) to $0.01 each, or the Reverse Stock Split. The implementation of the Reverse Stock Split is subject to and conditional upon our board of directors determining, in its sole discretion, that a reverse stock split is necessary for us to comply with the Bid Price Rule (with the consolidation ratio to be determined in the discretion of our board of directors within the parameters described). If we have regained compliance with the Bid Price Rule within the time permitted by Nasdaq, for example, due to the increase in our share price for a minimum of 10 consecutive business days on or before the Extended Compliance Date, our board of directors may still determine to implement the Reverse Stock Split if it considers that it would be necessary to do so in order to maintain compliance with the Bid Price Rule. However, in no event will the Reverse Stock Split occur after the date of our annual general meeting of shareholders in 2023. If our board of directors does not determine that a reverse stock split is necessary for us to comply with the Bid Price Rule prior to the date of our annual general meeting of shareholders in 2023, our board of directors will be deemed to have abandoned the Reverse Stock Split.
In addition to enabling us to comply with the Bid Price Rule, our board of directors believes that, if the Reverse Stock Split is implemented, the expected increased share price could encourage investor interest and improve the marketability of our ordinary shares to a broader range of investors, and thus enhance our liquidity. Because of the trading volatility often associated with low-priced stocks, many brokerage firms and institutional investors have internal policies and practices that either prohibit them from investing in low-priced shares or tend to discourage individual brokers from recommending low-priced shares to their customers. Additionally, because brokers’ commissions on low-priced shares generally represent a higher percentage of the share price than commissions on higher-priced shares, the current share price of our ordinary shares may result in an investor paying transaction costs that represent a higher percentage of total share value than would be the case if our share price were higher. Our board of directors believes that the higher share price that may result from the Reverse Stock Split, if implemented, could enable institutional investors and brokerage firms with such policies and practices to invest in our ordinary shares.
 
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Although we expect that the Reverse Stock Split, if implemented, will result in an increase in the market price of our ordinary shares, the Reverse Stock Split may not result in a permanent increase in the market price of our ordinary shares, which would be dependent on many factors, including general economic, market and industry conditions and other factors detailed from time to time in the reports we file with the SEC.
In evaluating the Reverse Stock Split Proposal, our board of directors has taken into consideration negative factors associated with reverse stock splits. These factors include the negative perception of reverse stock splits held by many investors, analysts and other stock market participants, as well as the fact that the stock price of some companies that have effected reverse stock splits has subsequently declined back to pre-reverse stock split levels. In recommending the Reverse Stock Split Proposal, our board of directors determined that these potential negative factors were significantly outweighed by the potential benefits.
OUR BOARD OF DIRECTORS MAY DECIDE NOT TO PROCEED TO IMPLEMENT THE REVERSE STOCK SPLIT IN ITS SOLE DISCRETION AND WITHOUT FURTHER SHAREHOLDER APPROVAL.
Certain Risks Associated with the Reverse Stock Split
There can be no assurance that the total market capitalization of our ordinary shares after the proposed Reverse Stock Split, if implemented, will be equal to or greater than the total market capitalization before the proposed Reverse Stock Split or that the per share market price of our ordinary shares following the proposed Reverse Stock Split will increase in proportion to the reduction in the number of our ordinary shares outstanding in connection with the proposed Reverse Stock Split. Also, we cannot assure you that the proposed Reverse Stock Split, if implemented, would lead to a sustained increase in the trading price of our ordinary shares. The trading price of our ordinary shares may change due to a variety of other factors, including our ability to successfully accomplish our business goals, market conditions and the market perception of our business. You should also keep in mind that the proposed Reverse Stock Split, if implemented, will not have an effect on the actual or intrinsic value of our business or a shareholder’s proportional ownership in our company (subject to the treatment of fractional shares). However, should the overall value of our ordinary shares decline after the proposed Reverse Stock Split, if implemented, then the actual or intrinsic value of the ordinary shares held by you will also proportionately decrease as a result of the overall decline in value.
Further, the liquidity of our ordinary shares may be harmed by the proposed Reverse Stock Split, if implemented, given the reduced number of shares that would be outstanding after the Reverse Stock Split, particularly if the expected increase in share price as a result of the Reverse Stock Split is not sustained. For instance, the proposed Reverse Stock Split, if implemented, may increase the number of shareholders who own odd lots (less than 100) of our ordinary shares, creating the potential for such shareholders to experience an increase in the cost of selling their shares and greater difficulty effecting sales. If the Reverse Stock Split is implemented, the resulting per-share price may nevertheless fail to attract institutional investors and may not satisfy the investing guidelines of such investors and, consequently, the trading liquidity of our ordinary shares may not improve.
While our board of directors has proposed the Reverse Stock Split Proposal for the purpose of enabling us to bring or maintain the price of our ordinary shares above $1.00 per share in order to comply with the requirements for the continued listing of our ordinary shares on Nasdaq, if the Reverse Stock Split is implemented, there is no guarantee that the price of our ordinary shares will not decrease in the future, or that our ordinary shares will remain in compliance with Nasdaq listing standards. Additionally, there can be no guarantee that the closing bid price of our ordinary shares will remain at or above $1.00 for 10 consecutive trading days, whether following the implementation of the Reverse Stock Split or otherwise, which is required to cure our current Nasdaq listing standard deficiency.
Effect of the Reverse Stock Split
If the Reverse Stock Split Proposal is approved by our shareholders and our board of directors determines that it is necessary to implement the Reverse Stock Split for us to comply with the Bid Price Rule, with effect from implementation of the Reverse Stock Split, the number of our authorized and issued
 
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ordinary shares will be reduced in proportion to the consolidation ratio to be determined in the discretion of our board of directors within the parameters described. As of the effective time of the Reverse Stock Split, we would also adjust and proportionately decrease the number of our ordinary shares reserved for issuance upon exercise of, and adjust and proportionately increase the exercise price of, all options and warrants and other rights to acquire our ordinary shares. In addition, as of the effective time of the Reverse Stock Split, we would adjust and proportionately decrease the total number of our ordinary shares that may be the subject of the future grants under our share plans. The proposed Reverse Stock Split, if implemented, would also proportionately reduce the number of authorized and unissued ordinary shares under our memorandum and articles of association. Following the implementation of the Reverse Stock Split, we would be required to file an amended memorandum and articles of association with the Irish Companies Registration Office to reflect the Reverse Stock Split. The amended memorandum and articles of association, to reflect the Reverse Stock Split, if implemented, is attached to this proxy statement as Appendix A.
The Reverse Stock Split would, if implemented, be effected simultaneously for all of our issued and outstanding ordinary shares. The Reverse Stock Split would affect all of our shareholders uniformly and would not change any shareholder’s percentage ownership interest in our company, except to the extent that the Reverse Stock Split results in any of our shareholders owning fractional shares. We will not issue any fractional shares as a result of the Reverse Stock Split and in lieu thereof, to the extent that we have the ability to aggregate and sell such shares on the market (see further below under “— Fractional Shares”), any shareholders that would otherwise be entitled to receive a fractional share will be entitled to receive a cash payment in an amount equal to the net cash proceeds attributable to the sale of such fractional entitlement following the aggregation and sale by us on behalf of each of the relevant shareholders of all of our ordinary shares that they would otherwise be entitled to receive, on the basis of prevailing market prices at such time. The Reverse Stock Split, if implemented, would not change the rights attaching to our ordinary shares. The Reverse Stock Split, if implemented, is not intended as, and would not have the effect of, a “going private transaction” covered by Rule 13e-3 under the Securities Exchange Act of 1934 (the “Exchange Act”). Following the Reverse Stock Split, if implemented, we would continue to be subject to the periodic reporting requirements of the Exchange Act.
After the effective time of the Reverse Stock Split, if implemented, our ordinary shares will have a new Committee on Uniform Securities Identification Procedures, CUSIP, number, which is a number used to identify our equity securities, and share certificates with the older CUSIP numbers (if any) will need to be exchanged for share certificates with the new CUSIP numbers by following the procedures described below.
The following table sets forth the range of (1) the number of our ordinary shares that would be authorized and issued, (2) the number of our ordinary shares that would be reserved for issuance pursuant to outstanding options, warrants and restricted stock units, and (3) the weighted-average exercise price of outstanding options and warrants, assuming the Reverse Stock Split were implemented, as of June 24, 2022, at ratios of 1-for-10, 1-for-17 and 1-for-25, which reflect the low end, middle and high end of the range of Reverse Stock Split ratios our shareholders are being asked to approve.
Before
Reverse
Stock Split
Reverse
Stock
Split Ratio
of
1-for-10
Reverse
Stock
Split Ratio
of
1-for-17
Reverse
Stock
Split Ratio
of
1-for-25
Number of Ordinary Shares Authorized and
Issued
64,333,535 6,433,354 3,784,326 2,573,341
Number of Ordinary Shares Reserved for Issuance Pursuant to Outstanding Options, Warrants and Restricted Stock Units
8,800,995 880,100 517,706 352,040
Weighted-Average Exercise Price of Outstanding Options and Warrants
$ 8.35 $ 83.54 $ 142.02 $ 208.85
Our directors and executive officers have no substantial interests, directly or indirectly, in the matters set forth in the Reverse Stock Split Proposal, except to the extent of their ownership of our ordinary shares and securities convertible or exercisable for our ordinary shares, which shares and securities would be
 
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subject to the same proportionate adjustment in accordance with the terms of the Reverse Stock Split Proposal as all of our other outstanding ordinary shares and securities convertible into or exercisable for our ordinary shares.
Authorized Share Capital
At the date of this proxy statement, our authorized share capital is €25,000 and $4,000,000 divided into 25,000 Euro Deferred Shares of €1.00 each, 300,000,000 Ordinary Shares of $0.01 each and 100,000,000 Preferred Shares of $0.01 each. If the Reverse Stock Split Proposal is approved and our board of directors determines, in its sole discretion, that a reverse stock split is necessary for us to comply with the Bid Price Rule, following implementation of the Reverse Stock Split at a ratio to be determined by our board of directors, the number of ordinary shares of our authorized share capital would decrease by between approximately 270,000,000 ordinary shares and 288,000,000 ordinary shares depending on the ratio determined by our board of directors in its absolute discretion. Consequently, our authorized share capital would be €25,000 and between approximately $1,120,000 and $1,300,000 divided into 25,000 Euro Deferred Shares of €1.00 each, between approximately 12,000,000 ordinary shares and 30,000,000 ordinary shares of $0.01 each and 100,000,000 Preferred Shares of $0.01 each. The Reverse Stock Split, if implemented, will not change the number of authorized Preferred Shares or Euro Deferred Shares.
Procedure for Effecting a Reverse Stock Split and Exchange of Share Certificates
If shareholders approve the Reverse Stock Split Proposal, and our board of directors determines, in its sole discretion, that a reverse stock split is necessary for us to comply with the Bid Price Rule, we will publicly announce our intention to proceed with the Reverse Stock Split. Such announcement will specify the effective time and date of the Reverse Stock Split and the number of ordinary shares which will be consolidated into one ordinary share for the purpose of effecting the Reverse Stock Split. Beginning at the effective time, each certificate representing ordinary shares will be deemed for all corporate purposes to evidence ownership of the number of whole shares into which the shares previously represented by the certificate were combined pursuant to the Reverse Stock Split.
Following the effective time of the Reverse Stock Split, if implemented, shareholders holding physical certificates would need to exchange those certificates. As we are now fully participating in the direct registration system, you will not receive a replacement physical certificate. Instead, you will receive uncertificated shares and a written confirmation from our transfer agent, Computershare Trust Company, N.A., indicating the whole number of uncertificated shares you own after the effect of the Reverse Stock Split and a cash payment in lieu of any fractional shares. Our ordinary shares will also receive a new CUSIP number.
If the Reverse Stock Split is implemented, our transfer agent will advise registered shareholders of the procedures to be followed to exchange certificates in a letter of transmittal to be sent to shareholders. No written confirmations will be issued to a shareholder until the shareholder has surrendered the shareholder’s outstanding certificate(s), together with the properly completed and executed letter of transmittal, to our transfer agent. Any old shares submitted for transfer, whether pursuant to a sale, other disposition or otherwise, will automatically be exchanged for new shares. Shareholders should not destroy any share certificate(s) and should not submit any certificate(s) until requested to do so.
Certain of our registered shareholders hold some or all of their shares electronically in book-entry form with our transfer agent. These shareholders do not hold physical certificates evidencing their ownership of our ordinary shares. However, they are provided with a statement reflecting the number of our ordinary shares registered in their accounts. If a shareholder holds ordinary shares in book-entry form with our transfer agent, no action needs to be taken to receive post-Reverse Stock Split shares or payment in lieu of fractional shares, if applicable. If a shareholder is entitled to post-Reverse Stock Split shares, a transaction statement will automatically be sent to the shareholder’s address of record indicating the number of our ordinary shares held following the Reverse Stock Split.
If the Reverse Stock Split is implemented, we intend to treat shareholders holding our ordinary shares in “street name,” through a broker, bank or other nominee, in the same manner as registered shareholders whose shares are registered in their names. Brokers, banks or other nominees will be instructed to effect a
 
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reverse stock split for their beneficial holders holding our ordinary shares in “street name.” However, these brokers, banks or other nominees may have different procedures than registered shareholders for processing a reverse stock split. If you hold your shares with a broker, bank or other nominee and if you have any questions in this regard, we encourage you to contact your nominee.
Fractional Shares
We will not issue fractional shares in connection with the Reverse Stock Split, if implemented. Instead, we will aggregate the fractional entitlements of shareholders who otherwise would be entitled to receive fractional shares because they hold a number of ordinary shares not evenly divisible by the number of ordinary shares which our board of directors ultimately determines should be consolidated into one ordinary share pursuant to the Reverse Stock Split or they hold less than the number of ordinary shares which our board of directors ultimately determines should be consolidated into one ordinary share pursuant to the Reverse Stock Split and, to the extent possible, sell such ordinary shares on the basis of prevailing market prices at such time. We will subsequently remit the proceeds of such sales, after deducting any applicable costs, to the shareholders who otherwise would be entitled to receive fractional shares and such shareholders will be entitled to receive a cash payment in lieu of such fractional entitlement in an amount equal to the net cash proceeds attributable to the sale of such fractional entitlement. Each (if any) of the authorized and issued ordinary shares of $0.01 each that cannot be consolidated into one ordinary share pursuant to the Reverse Stock Split shall, immediately following the effective time of the Reverse Stock Split, be acquired by us from the shareholders otherwise entitled thereto for no consideration and be cancelled.
No Appraisal Rights
No action is proposed herein for which the laws of Ireland, or our constitution, provide a right to our shareholders to dissent and obtain appraisal of, or payment for, such shareholder’s ordinary shares.
Reduction in the Nominal Value of the Ordinary Shares and Accounting Matters
If the Reverse Stock Split is implemented, the nominal value per share of our ordinary shares will be consolidated from $0.01 to an amount within the range of $0.10 per share to $0.25 per share (depending on the share consolidation ratio chosen by our board of directors in its absolute discretion) and subsequently immediately reduced to $0.01 nominal value per share. Subject to non-material adjustments to cater for the cancellation of remaining fractional entitlements, the consolidation would not affect the total ordinary shareholders’ equity on the balance sheet, although it would result in the share capital attributable to ordinary shares decreasing and the undenominated capital increasing. If the Reverse Stock Split is implemented, reported per share net income or loss and net book value would be higher because there would be fewer ordinary shares issued and outstanding and we would plan to adjust historical per share amounts set forth in our future financial statements.
Material U.S. Federal Income Tax Consequences of the Reverse Stock Split
The following discussion is a summary of the material U.S. federal income tax consequences of the proposed Reverse Stock Split to us and to U.S. Holders (as defined below) that hold our ordinary shares as capital assets for U.S. federal income tax purposes (generally, property held for investment). This discussion is based on the Internal Revenue Code of 1986, as amended, which we refer to as the Code, U.S. Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the U.S. Internal Revenue Service, which we refer to as the IRS, in each case in effect as of the date of this proxy statement. These authorities may change or be subject to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely affect a U.S. Holder. We have not sought and will not seek any rulings from the IRS regarding the matters discussed below and there can be no assurance the IRS or a court will not take a contrary position to that discussed below regarding the tax consequences of the proposed Reverse Stock Split.
For purposes of this discussion, a “U.S. Holder” is a beneficial owner of our ordinary shares that, for U.S. federal income tax purposes, is or is treated as (i) an individual who is a citizen or resident of the United States; (ii) a corporation (or any other entity or arrangement treated as a corporation) created or organized under the laws of the United States, any state thereof, or the District of Columbia; (iii) an estate, the
 
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income of which is subject to U.S. federal income tax regardless of its source; or (iv) a trust if (1) its administration is subject to the primary supervision of a court within the United States and all of its substantial decisions are subject to the control of one or more “United States persons” ​(within the meaning of Section 7701(a)(30) of the Code ), or (2) it has a valid election in effect under applicable U.S. Treasury regulations to be treated as a United States person.
This discussion does not address all U.S. federal income tax consequences relevant to the particular circumstances of a U.S. Holder, including the impact of the Medicare contribution tax on net investment income.
In addition, it does not address consequences relevant to U.S. Holders that are subject to special rules, including, without limitation, financial institutions, insurance companies, real estate investment trusts, regulated investment companies, grantor trusts, tax-exempt organizations, dealers or traders in securities, commodities or currencies, shareholders who hold our ordinary shares as part of a position in a straddle or as part of a hedging, conversion or integrated transaction for U.S. federal income tax purposes, persons whose functional currency is not the U.S. dollar, or U.S. Holders who actually or constructively own 10% or more of our voting stock.
If a partnership (or other entity treated as a partnership for U.S. federal income tax purposes) is the beneficial owner of our ordinary shares, the U.S. federal income tax treatment of a partner in the partnership will generally depend on the status of the partner and the activities of the partnership. Accordingly, partnerships (and other entities treated as partnerships for U.S. federal income tax purposes) holding our ordinary shares and the partners in such entities should consult their own tax advisors regarding the U.S. federal income tax consequences of the proposed Reverse Stock Split, if implemented, to them.
In addition, the following discussion does not address the U.S. federal estate and gift tax, alternative minimum tax, or state, local and non-U.S. tax law consequences of the proposed Reverse Stock Split, if implemented. Furthermore, the following discussion does not address any tax consequences of transactions effectuated before, after or at the same time as the proposed Reverse Stock Split, if implemented, whether or not they are in connection with the proposed Reverse Stock Split. This discussion should not be considered as tax or investment advice, and the tax consequences of the proposed Reverse Stock Split, if implemented, may not be the same for all shareholders.
Each shareholder should consult his, her or its own tax advisors concerning the particular U.S. federal tax consequences of the proposed Reverse Stock Split, if implemented, as well as the consequences arising under the laws of any other taxing jurisdiction, including any state, local or foreign tax consequences.
Tax Consequences to the Company.   The proposed Reverse Stock Split is intended to be treated as a “recapitalization” pursuant to Section 368(a)(1)(E) of the Code. As a result, we should not recognize taxable income, gain or loss in connection with the proposed Reverse Stock Split.
Tax Consequences to U.S. Holders.   A U.S. Holder generally should not recognize gain or loss upon the proposed Reverse Stock Split for U.S. federal income tax purposes, except with respect to cash received in lieu of a fractional ordinary share, as discussed below. A U.S. Holder’s aggregate adjusted tax basis in our ordinary shares received pursuant to the proposed Reverse Stock Split should equal the aggregate adjusted tax basis of our ordinary shares exchanged therefor (reduced by the amount of such basis that is allocated to any fractional ordinary share for which the U.S. Holder receives cash). The U.S. Holder’s holding period in our ordinary shares received pursuant to the proposed Reverse Stock Split should include the holding period in our ordinary shares exchanged therefor. U.S. Treasury Regulations provide detailed rules for allocating the tax basis and holding period of ordinary shares surrendered in a recapitalization to shares received in the recapitalization.
A U.S. Holder that, pursuant to the proposed Reverse Stock Split, receives cash in lieu of a fractional ordinary share should recognize capital gain or loss in an amount equal to the difference, if any, between the amount of cash received and the portion of the U.S. Holder’s aggregate adjusted tax basis in the ordinary shares surrendered that is allocated to such fractional share. Such capital gain or loss will be short term if the pre-Reverse Stock Split shares were held for one year or less at the effective time of the Reverse Stock Split and long term if held for more than one year.
 
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A U.S. Holder of our ordinary shares may be subject to information reporting and backup withholding on cash paid in lieu of a fractional share in connection with the proposed Reverse Stock Split. A U.S. Holder of our ordinary shares will be subject to backup withholding if such U.S. Holder is not otherwise exempt and such U.S. Holder does not provide its taxpayer identification number in the manner required or otherwise fails to comply with applicable backup withholding tax rules. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be refunded or allowed as a credit against a U.S. Holder’s federal income tax liability, if any, provided the required information is timely furnished to the IRS.
The U.S. federal income tax discussion set forth above does not discuss all aspects of U.S. federal income taxation that may be relevant to a particular shareholder in light of such shareholder’s circumstances and income tax situation. Accordingly, we urge you to consult with your own tax advisor with respect to all of the potential U.S. federal, state, local and foreign tax consequences to you of the proposed Reverse Stock Split, if implemented.
Material Irish Tax Consequences of the Reverse Stock Split
The following is a summary of the material Irish tax consequences of the proposed Reverse Stock Split, if implemented, for beneficial holders of our ordinary shares. The summary does not purport to be a comprehensive description of all of the tax considerations that may be relevant to each shareholder. The summary is based upon Irish tax laws and the practice of the Irish Revenue Commissioners in effect on the date of this proxy statement. Changes in law and/or administrative practice may result in alteration of the tax considerations described below, possibly with retrospective effect.
The summary does not constitute legal or tax advice and is intended only as a general guide. The summary is not exhaustive and shareholders should consult their own tax advisors about the Irish tax consequences (and tax consequences under the laws of other relevant jurisdictions) of the proposed Reverse Stock Split, if implemented. The summary applies only to shareholders who hold their ordinary shares as capital assets and does not apply to other categories of shareholders, such as dealers in securities, trustees, insurance companies, collective investment schemes and shareholders who acquired their ordinary shares, or who have, or who are deemed to have, acquired their ordinary shares by virtue of an Irish office or employment (performed or carried on in Ireland). Such persons may be subject to special rules.
Irish Tax on Chargeable Gains
The current rate of tax on chargeable gains (where applicable) in Ireland is 33%.
Non-Irish Resident Shareholders
Shareholders that are not resident or ordinarily resident in Ireland and who do not hold our ordinary shares in connection with a trade or business carried on by them through a branch or agency in Ireland will not be subject to Irish tax on chargeable gains as a result of the proposed Reverse Stock Split, if implemented.
Irish Resident Shareholders
Shareholders that are resident or ordinarily resident in Ireland for tax purposes or shareholders that hold their ordinary shares in connection with a trade or business carried on through a branch or agency in Ireland will, subject to the availability of any exemptions or reliefs, be within the charge to Irish tax on chargeable gains on the consolidation of their existing ordinary shares pursuant to the proposed Reverse Stock Split, if implemented. Such shareholders should consult their own tax advisors on the Irish tax consequences of the proposed Reverse Stock Split, if implemented.
The proposed Reverse Stock Split will be intended, if implemented, to be treated as a “reorganization” of our share capital and, accordingly, should not result in a disposal by any such shareholder of any of our ordinary shares, except with respect to cash received in lieu of a fractional ordinary share, as discussed below. Instead the ordinary shares held after the proposed Reverse Stock Split should be treated as the same asset and as having been acquired at the same time and for the same consideration as the ordinary shares held
 
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before the Reverse Stock Split (adjusted for any part of the consideration attributable to the part disposal in respect of the receipt of cash in lieu of a fractional ordinary share).
The receipt by such a shareholder of any cash in lieu of a fractional ordinary share should be treated as a part disposal of his or her ordinary shares for Irish tax on chargeable gains in respect of the cash consideration received.
Stamp Duty
The rate of stamp duty (where applicable) on transfers of shares of Irish incorporated companies is 1% of the price paid or the market value of the shares acquired, whichever is greater. Irish stamp duty should not arise as a result of the Reverse Stock Split, if implemented.
THE IRISH TAX CONSIDERATIONS SUMMARIZED ABOVE ARE FOR GENERAL INFORMATION ONLY. HOLDERS OF OUR ORDINARY SHARES SHOULD CONSULT WITH THEIR TAX ADVISORS REGARDING THE TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT, IF IMPLEMENTED, IN IRELAND.
Proposed Resolution
In light of the foregoing, our board of directors recommends that you vote in favor of the following resolution at the AGM:
RESOLVED, as an ordinary resolution, subject to and conditional upon the board of directors of the Company (the “Board”) determining, in its sole discretion at any time prior to the 2023 annual general meeting of the Company, that the reverse stock split is necessary for the Company to comply with the minimum $1.00 per share requirement pursuant to Nasdaq Listing Rule 5450(a)(1) (the “Bid Price Rule”):
i.
That such number of authorized but unissued ordinary shares of $0.01 each (nominal value) in the capital of the Company as the Board may determine that is not less than 10 ordinary shares and not more than 25 ordinary shares be consolidated with effect from such time and date as shall be determined by the Board (the “Effective Time”) into one ordinary share of such nominal value as is proportionate to the consolidation ratio (as determined by the Board in its absolute discretion), which nominal value shall not be less than $0.10 each (nominal value) and not more than $0.25 each (nominal value) in the capital of the Company, provided that, where such consolidation would otherwise result in a fraction of an unissued consolidated ordinary share of such nominal value as the Board may determine, the number of existing unissued ordinary shares of $0.01 each (nominal value) that would otherwise constitute such fraction be cancelled, with effect from the Effective Time, pursuant to section 83(1)(f)(ii) of the Irish Companies Act 2014;
ii.
That such number of authorized and issued ordinary shares of $0.01 each (nominal value) in the capital of the Company as the Board may determine that is not less than 10 ordinary shares and not more than 25 ordinary shares be consolidated, with effect from the Effective Time, into one ordinary share of such nominal value as is proportionate to the consolidation ratio (as determined by the Board in its absolute discretion), which nominal value shall not be less than $0.10 each (nominal value) and not more than $0.25 each (nominal value) in the capital of the Company, provided that, (1) where such consolidation would otherwise result in a shareholder being entitled to a fraction of an ordinary share, such fraction shall, so far as possible, be aggregated and consolidated with the fractions of a consolidated ordinary share to which other shareholders would otherwise be entitled and the Board be authorized to sell (or appoint any other person to sell) to any person, on behalf of the relevant shareholders, all the consolidated ordinary shares representing such fractions at the best price reasonably obtainable, (2) the net proceeds of any such sale shall be remitted in due proportion to the shareholders who would have been entitled to such fractions, (3) any director of the Company (or any person appointed by the Board) be authorized to execute an instrument of transfer in respect of such shares on behalf of the relevant shareholders and to do all acts and things the directors consider necessary or desirable to effect the transfer of such shares to, or in accordance with the directions of, any buyer of any such share; and (4) each (if any) of the authorized and issued ordinary shares of $0.01 (nominal value) each that cannot be
 
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consolidated into one ordinary share, including pursuant to (1) above be, with effect from the Effective Time, immediately acquired by the Company from the shareholders otherwise entitled thereto for no consideration. The existing ordinary shares so acquired shall be cancelled and the issued share capital of the Company shall be reduced by the nominal value of the existing ordinary shares so acquired and cancelled and any director of the Company (or any person appointed by the Board) be and is hereby authorized to execute an instrument of transfer (if necessary) in respect of such shares on behalf of the shareholders of the Company concerned and to do all acts and things that the directors consider necessary or desirable to effect the acquisition and cancellation of such shares; and
iii.
That the nominal value of each of the authorized but unissued ordinary shares in the capital of the Company and the nominal value of each of the authorized and issued ordinary shares in the capital of the Company resulting from the foregoing resolutions, be reduced, with effect from immediately after the Effective Time, to $0.01 each pursuant to section 83(1)(d) of the Irish Companies Act 2014, with the amount of such reduction being credited to the Company’s undenominated capital, other than the share premium account.
Vote Required and Board of Directors Recommendation
The affirmative vote of the holders of ordinary shares representing a majority of the votes cast on the matter and voting affirmatively or negatively is required for the approval of the Reverse Stock Split Proposal.
OUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR THE APPROVAL OF THE REVERSE STOCK SPLIT PROPOSAL.
 
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information with respect to the beneficial ownership of our ordinary shares as of June 24, 2022 by:
• each of our directors and director nominees;
• each of our “named executive officers”;
• all of our directors and executive officers as a group; and
• each person, or group of affiliated persons, who is known by us to beneficially own more than 5% of our ordinary shares.
The percentages in the columns entitled “Percentage of Shares Beneficially Owned” are based on a total of 64,333,535 ordinary shares outstanding as of June 24, 2022.
Beneficial ownership is determined in accordance with the rules and regulations of the SEC and includes voting or investment power with respect to our ordinary shares. Our ordinary shares subject to options that are currently exercisable or exercisable within 60 days of June 24, 2022 are considered outstanding and beneficially owned by the person holding the options for the purpose of calculating the percentage ownership of that person but not for the purpose of calculating the percentage ownership of any other person. Except as otherwise noted, the persons and entities in this table have sole voting and investing power with respect to all of the ordinary shares beneficially owned by them, subject to community property laws, where applicable. Except as otherwise set forth below, the address of the beneficial owner is c/o Nabriva Therapeutics plc, 25-28 North Wall Quay, Dublin 1, Ireland.
Name and Address of Beneficial Owner
Number of
Shares
Beneficially
Owned
Percentage of
Shares
Beneficially
Owned
Directors and Named Executive Officers:
Daniel Burgess(1)
72,165 *%
Stephen Webster(2)
68,213 *%
Charles A. Rowland, Jr.(3)
73,293 *%
Carrie Bourdow(4)
66,403 *%
Colin Broom(5)
152,859 *%
Lisa Dalton(6)
56,588 *%
Mark Corrigan(6)
56,588 *%
Steven Gelone(7)
116,100 *%
Theodore Schroeder(8)
366,801 *%
Daniel Dolan(9)
25,000 *%
All current directors and executive officers as a group (12 individuals)(10)
1,061,010 1.63%
5% Shareholders:
Lincoln Park Capital Fund, LLC (11)
4,512,589 7.01%
*
Less than one percent.
(1)
Consists of (i) 4,225 ordinary shares, (ii) 50,440 ordinary shares issuable upon exercise of stock options exercisable within 60 days of June 24, 2022 and (iii) 17,500 ordinary shares issuable upon the vesting of restricted stock units within 60 days of June 24, 2022.
(2)
Consists of (i) 1,773 ordinary shares, (ii) 48,940 ordinary shares issuable upon exercise of stock options exercisable within 60 days of June 24, 2022 and (iii) 17,500 ordinary shares issuable upon the vesting of restricted stock units within 60 days of June 24, 2022.
(3)
Consists of (i) 6,273 ordinary shares, (ii) 49,520 ordinary shares issuable upon exercise of stock options
 
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exercisable within 60 days of June 24, 2022 and (iii) 17,500 ordinary shares issuable upon the vesting of restricted stock units within 60 days of June 24, 2022.
(4)
Consists of (i) 973 ordinary shares, (ii) 47,930 ordinary shares issuable upon exercise of stock options exercisable within 60 days of June 24, 2022 and (iii) 17,500 ordinary shares issuable upon the vesting of restricted stock units within 60 days of June 24, 2022.
(5)
Consists of (i) 22,094 ordinary shares directly owned by Dr. Broom, (ii) 113,265 ordinary shares issuable upon exercise of stock options exercisable within 60 days of June 24, 2022 and (iii) 17,500 ordinary shares issuable upon the vesting of restricted stock units within 60 days of June 24, 2022.
(6)
Consists of (i) 39,088 ordinary shares issuable upon exercise of stock options exercisable within 60 days of June 24, 2022 and (ii) 17,500 ordinary shares issuable upon the vesting of restricted stock units within 60 days of June 24, 2022.
(7)
Consists of (i) 30,886 ordinary shares, (ii) 84,127 ordinary shares issuable upon exercise of stock options exercisable within 60 days of June 24, 2022 and (iii) 1,087 ordinary shares issuable upon the vesting of restricted stock units within 60 days of June 24, 2022.
(8)
Consists of (i) 207,707 ordinary shares, (ii) 156,981 ordinary shares issuable upon exercise of stock options exercisable within 60 days of June 24, 2022 and (iii) 2,113 ordinary shares issuable upon the vesting of restricted stock units within 60 days of June 24, 2022.
(9)
Consists of 25,000 ordinary shares issuable upon exercise of stock options exercisable within 60 days of June 24, 2022.
(10)
Consists of (i) 280,931 ordinary shares and (ii) 654,379 ordinary shares issuable upon exercise of stock options within 60 days of June 24, 2022 and (iii) 125,700 ordinary shares issuable upon the vesting of restricted stock units within 60 days of June 24, 2022.
(11)
Based solely upon a Schedule 13G filed on November 19, 2021, which sets forth beneficial ownership as of November 18, 2021. Consists of 4,512,589 ordinary shares held by Lincoln Park Capital Fund, LLC, or LPC Fund. Lincoln Park Capital, LLC, or LPC, is the Managing Member of LPC Fund. Rockledge Capital Corporation, or RCC, and Alex Noah Investors, Inc., or Alex Noah are the Managing Members of LPC. Josh Scheinfeld is the president and sole shareholder of RCC, as well as a principal of LPC. Jonathan Cope is the president and sole shareholder of Alex Noah, as well as a principal of LPC. As a result of the foregoing, each of LPC, RCC LPC, RCC, Mr. Scheinfeld, Alex Noah, and Mr. Cope (i) may be deemed to beneficially own and (ii) have shared voting and shared dispositive power over the 4,512,589 ordinary shares directly held by LPC Fund. Each of LPC, RCC, Mr. Scheinfeld, Alex Noah and Mr. Cope disclaims beneficial ownership of the ordinary shares directly held by LPC Fund, except to the extent of its or his pecuniary interest therein, if any. LPC Funds’ address is 440 N. Wells Street, Suite 410, Chicago, Illinois 60654.
 
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OTHER MATTERS
Our board of directors does not know of any other matters that may come before the AGM. However, if any other matters are properly presented to the AGM, it is the intention of the persons named in the accompanying proxy to vote, or otherwise act, in accordance with their judgment on such matters.
Solicitation of Proxies
This proxy is solicited on behalf of our board of directors. We will bear the expenses connected with this proxy solicitation. We expect to pay banks, brokers and other nominees their reasonable expenses for forwarding proxy materials and annual reports to principals and obtaining their voting instructions. In addition to the use of the mail, our directors, officers and employees may, without additional remuneration, solicit proxies in person or by use of other communications media.
Householding of Annual and Extraordinary Meeting Materials
Some banks, brokers and other nominee record holders may be participating in the practice of “householding” proxy statements and annual reports. This means that only one copy of our proxy statement, annual report, Irish statutory financial statements or Notice of Internet Availability of Proxy Materials may have been sent to multiple shareholders in the same household. We will promptly deliver a separate copy of any such document to any shareholder upon request submitted in writing to us at Nabriva Therapeutics plc, 25-28 North Wall Quay, Dublin 1, Ireland, Attention: Investor Relations, or by calling (610) 816-6640. Any shareholder who wants to receive separate copies of the proxy statement, annual report or Notice of Internet Availability of Proxy Materials in the future, or who is currently receiving multiple copies and would like to receive only one copy for his or her household, should contact his or her bank, broker or other nominee record holder, or contact us at the above address and phone number.
Deadline for Submission of Shareholder Proposals for 2023 Annual General Meeting of Shareholders
Proposals of shareholders intended to be presented at our 2023 Annual General Meeting pursuant to Rule 14a-8 promulgated under the Exchange Act must be received by us at our offices at 25-28 North Wall Quay, Dublin 1, Ireland, Attention: Secretary, no later than [      ], 2022, in order to be included in the proxy statement and proxy card relating to that meeting.
In addition, shareholders who intend to present matters for action at our 2023 Annual General Meeting or nominate directors for election to our board of directors (other than pursuant to Rule 14a-8) must comply with the requirements set forth in our constitution. For such matters under our constitution, proper written notice must be received by the Secretary at our registered office at the address noted above, no earlier than [      ], 2022 and no later than [      ], 2022; except if the date of the 2023 Annual General Meeting is changed by more than thirty (30) days from the first anniversary date of the 2022 Annual General Meeting, the shareholder’s notice must be so received no earlier than one hundred and twenty (120) days prior to such annual general meeting and no later than the close of business on the later of (i) the 90th day prior to such annual general meeting or (ii) the 10th day following the day on which a public announcement of the date of the annual general meeting is first made.
Important Notice of the Internet Availability of Proxy Materials for the Annual General Meeting:
The Notice and Proxy Statement, Irish Statutory Financial Statements and 2021 Annual Report are available at www.proxyvote.com.
 
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Appendix A
COMPANIES ACT 2014
A PUBLIC COMPANY LIMITED BY SHARES
CONSTITUTION
OF
NABRIVA THERAPEUTICS PUBLIC LIMITED COMPANY
(adopted on 23 June 2017 and amended on 2 December 2020, 28 July 2021 and [])
 
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COMPANIES ACT 2014
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
NABRIVA THERAPEUTICS PUBLIC LIMITED COMPANY
1.
The name of the Company is Nabriva Therapeutics public limited company.
2.
The Company is a public limited company for the purposes of Part 17 of the Companies Act 2014.
3.
The objects for which the Company is established are:
3.1.
To carry on the business of a holding company and to coordinate the administration, finances and activities of any subsidiary companies or associated companies, to do all lawful acts and things whatsoever that are necessary or convenient in carrying on the business of such a holding company and in particular to carry on, in all its branches, the business of a management services company, to act as managers and to direct or coordinate the management of other companies or of the business, property and estates of any company or person and to undertake and carry out all such services in connection therewith as may be deemed necessary or appropriate by the Company’s board of directors and to exercise its powers as a shareholder of other companies.
3.2.
To carry on the business of a pharmaceuticals company and to research, develop, design, manufacture, produce, supply, buy, sell, distribute, import, export, provide, promote and otherwise deal in pharmaceuticals, active pharmaceutical ingredients and dosage pharmaceuticals and other devices or products of a pharmaceutical, medicinal or healthcare character (including, but not limited to, anti-infective agents) and to hold intellectual property rights and to do all things usually done by persons carrying on the above mentioned activities or any of them or likely to be required in connection with any such activities.
3.3.
To invest in pharmaceutical and related assets, including, amongst other items, investments in pharmaceutical companies, products, businesses, divisions, technologies, devices, sales force and other marketing capabilities, development projects and related activities, licences, intellectual and similar property rights, premises and equipment, royalty rights and all other assets needed to operate a pharmaceuticals business.
3.4.
To establish, maintain and operate laboratories for the purposes of carrying on chemical, physical and other research in medicine, chemistry, industry or other unrelated or related fields.
3.5.
To invest (including long-term investments in, and acquisitions of, the shares or other securities or ownership interests in other companies) any monies of the Company in such investments and in such manner as may from time to time be determined, and to hold, sell or deal with such investments and generally to purchase, take on lease or in exchange or otherwise acquire any real and personal property and rights or privileges.
3.6.
To develop and turn to account any land acquired by the Company or in which it is interested and in particular by laying out and preparing the same for building purposes, constructing, altering, pulling down, decorating, maintaining, fitting up and improving buildings and conveniences, and by planting, paving, draining, farming, cultivating, letting on building lease or building agreement and by advancing money to and entering into contracts and arrangements of all kinds with builders, tenants and others.
3.7.
To acquire and hold shares and stocks of any class or description, debentures, debenture stocks, bonds, bills, mortgages, obligations, investments, partnership interests, limited partnership interests, trust interests, membership interests and other securities or ownership interests of all descriptions and of any kind issued or guaranteed by any company or undertaking of whatever
 
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nature and wheresoever constituted or carrying on business or issued or guaranteed by any government, state, dominion, colony, sovereign ruler, commissioners, trust, public, municipal, local or other authority or body of whatever nature and wheresoever situated and investments, securities and property of all descriptions and of any kind, including real and chattel real estates, mortgages, reversions, assurance policies, contingencies and choses in action.
3.8.
To remunerate by cash payments or allotment of shares or securities or other ownership interests (including rights to acquire shares or securities or other ownership interests) of the Company credited as fully paid up or otherwise any person or company for services rendered or to be rendered to the Company or any parent or subsidiary body corporate whether in the conduct or management of its business, or in placing or assisting to place or guaranteeing the placing of any of the shares of the Company’s capital, or any debentures or other securities of the Company or in or about the formation or promotion of the Company.
3.9.
To purchase for investment property of any tenure and any interest therein, and to make advances upon the security of land or other similar property or any interest therein.
3.10.
To acquire by purchase, exchange, lease, fee, farm grant or otherwise, either for an estate in fee simple or for any less estate or other estate or interest, whether immediate or reversionary and whether vested or contingent, any lands, tenements or hereditaments of any tenure, whether subject or not to any charges or encumbrances, and to hold, farm, work and manage and to let, sublet, mortgage or charge land and buildings of any kind, reversions, interests, annuities, life policies, and any other property real or personal, movable or immovable, either absolutely or conditionally, and either subject or not to any mortgage, charge, ground rent or other rents or encumbrances.
3.11.
To erect or secure the erection of buildings or other structures of any kind with a view of occupying or letting them or otherwise utilising them and to enter into any contracts or leases and to grant any licences necessary to effect the same.
3.12.
To maintain and improve any lands, tenements or hereditaments acquired by the Company or in which the Company is interested, in particular by decorating, maintaining, furnishing, fitting up and improving houses, shops, flats, maisonettes and other buildings and structures and to enter into contracts and arrangements of all kinds with tenants and others.
3.13.
To sell, exchange, mortgage (with or without power of sale), assign, turn to account or otherwise dispose of and generally deal with the whole or any part of the property, shares, stocks, securities, estates, rights or undertakings of the Company, real property, chattels real or personal, movable or immovable, either in whole or in part.
3.14.
To take part in the management, supervision, or control of the business or operations of any company or undertaking, and for that purpose to appoint and remunerate any directors, accountants, or other experts or agents to act as consultants, supervisors and agents of other companies or undertakings and to provide managerial, advisory, technical, design, purchasing and selling services and any other services deemed appropriate by the Company.
3.15.
To make, draw, accept, endorse, negotiate, issue, execute, discount and otherwise deal with bills of exchange, promissory notes, letters of credit, circular notes, and other negotiable or non-negotiable or transferable or non-transferrable instruments.
3.16.
To redeem, purchase, or otherwise acquire in any manner permitted by law any shares in the Company’s capital or other securities or ownership interests of any kind issued by the Company.
3.17.
To guarantee, support or secure whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property and assets (present and future) and uncalled capital of the Company or by both such methods, or by any other method whatsoever, the performance of the obligations of, and the repayment or payment of the principal amounts of and the premiums, interest, dividends and other amounts due on or with respect to any security of any person, firm or company, including any company which is for the time being the Company’s
 
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holding company (as defined by section 8 of the Companies Act 2014) or subsidiary (as defined by section 7 of the Companies Act 2014) or another subsidiary as defined by the said section of the Company’s holding company (as defined by section 8 of the Companies Act 2014) or otherwise associated with the Company in business notwithstanding the fact that the Company may not receive any consideration, advantage or benefit, direct or indirect from entering into such guarantee or other arrangement or transaction contemplated herein.
3.18.
To lend the funds of the Company with or without security and at interest or free of interest.
3.19.
To raise or borrow or secure the payment of money, including by the issue of bonds, debentures or debenture stock, perpetual or redeemable, or by mortgage, charge, lien or pledge upon the whole or any part of the undertaking, property, assets or rights of the Company, present or future, including its uncalled capital and generally in any other manner as the directors shall from time to time determine and to enter into or issue interest and currency hedging and swap agreements, forward rate agreements, interest and currency futures or options and other forms of financial instruments, and to purchase, redeem or pay off any of the foregoing and to guarantee any or all of the liabilities of the Company, any other company or any other person, and any debentures, debenture stock or other securities may be issued at a discount, premium or otherwise, and with any special privileges as to redemption, surrender, transfer, drawings, allotments of shares, attending and voting at general meetings of the Company, appointment of directors and otherwise.
3.20.
To accumulate capital for any of the purposes of the Company, and to appropriate any of the Company’s assets to specific purposes, either conditionally or unconditionally, and to admit any class or section of those who have any dealings with the Company to any share in the profits thereof or in the profits of any particular branch of the Company’s business or to any other special rights, privileges, advantages or benefits.
3.21.
To reduce the share capital of the Company in any manner permitted by law.
3.22.
To make gifts or grant bonuses to officers or other persons who are or have been in the employment of the Company and to allow any such persons to have the use and enjoyment of such property, chattels or other assets belonging to the Company upon such terms as the Company shall think fit.
3.23.
To establish and maintain or procure the establishment and maintenance of any pension or superannuation fund (whether contributory or otherwise) for the benefit of and to give or procure the giving of donations, gratuities, pensions, annuities, allowances, emoluments or charitable aid to any persons who are or were at any time in the employment or service of the Company or any of its predecessors in business, or of any company which is a subsidiary of the Company or who may be or have been directors or officers of the Company, or of any such other company as aforesaid, or any persons in whose welfare the Company or any such other company as aforesaid may be interested and the wives, husbands, widows, widowers, families, relatives or dependants of any such persons, and to make payments towards insurance and assurance and to form and contribute to provident and benefit funds for the benefit of any such persons and to remunerate any person, firm or company rendering services to the Company or of any company which is a subsidiary of the Company, whether by cash payment, gratuities, pensions, annuities, allowances, emoluments or by the allotment of shares or securities of the Company credited as paid up in full or in part or otherwise.
3.24.
To employ experts to investigate and examine into the conditions, prospects, value, character and circumstances of any business concerns, undertakings, assets, property or rights.
3.25.
To insure the life of any person who may, in the opinion of the Company, be of value to the Company, as having or holding for the Company interests, goodwill, or influence or otherwise and to pay the premiums on such insurance.
3.26.
To distribute either upon a distribution of assets or division of profits among the Members of
 
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the Company in kind any property of the Company, and in particular any shares, debentures or securities of other companies belonging to the Company or of which the Company may have the power of disposing.
3.27.
To give, whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription made or to be made by any person of or for any shares in the Company, or, where the Company is a subsidiary company, in its holding company.
3.28.
To do and carry out all or any of the foregoing or following objects in any part of the world and either as principals, agents, contractors, trustees or otherwise, and either by or through agents, trustees or otherwise and either alone or in partnership or in conjunction with any other company, firm or person, provided that nothing herein contained shall empower the Company to carry on the business of insurance.
3.29.
To apply for, purchase or otherwise acquire any patents, brevets d’invention, licences, trademarks, trade names, copyrights, industrial designs, know-how, concessions and other forms of intellectual property rights and the like conferring any exclusive or non-exclusive or limited or contingent rights to use, or any secret or other information as to any invention or process of the Company, or the acquisition of which may seem calculated directly or indirectly to benefit the Company, and to use, exercise, develop, or grant licences in respect of, or otherwise turn to account the property, rights or information so acquired.
3.30.
To enter into partnership or into any arrangement for sharing profits, union of interests, co-operation, joint venture, reciprocal concession or otherwise with any person or company.
3.31.
To acquire and undertake the whole or any part of the undertaking, business, property and liabilities of any person or company.
3.32.
To adopt such means of making known the Company and its products and services as may seem expedient.
3.33.
To acquire and carry on any business carried on by a subsidiary or a holding company of the Company or another subsidiary of a holding company of the Company.
3.34.
To promote any company or companies for the purpose of acquiring all or any of the property and liabilities of this Company or for any other purpose which may seem directly or indirectly calculated to benefit this Company.
3.35.
To amalgamate with, merge with or otherwise become part of or associated with any other company or association in any manner permitted by law.
3.36.
To make voluntary dispositions of all or any part of the property and rights of the Company and to make gifts thereof or gratuitous payments either for no consideration or for a consideration less than the market value of such property or rights or the amount of cash payment or by all or any such methods.
3.37.
To receive voluntary dispositions of all or any part of the undertakings, properties, assets or rights of any other corporation and to receive gifts thereof or gratuitous payments either for no consideration or for a consideration less than the market value of such property or rights or the amount of cash payment or by all or any such methods.
3.38.
To do and carry out all such other things, except the issuing of policies of insurance, as may be deemed by the Company capable of being carried on in connection with the above objects or any of them or calculated to enhance the value of or render profitable any of the Company’s undertakings, properties, assets or rights.
And it is hereby declared that (i) the word “company” in this clause, except where used in reference to this Company, shall be deemed to include any person, partnership, limited partnership, limited liability partnership, limited liability company, other corporate body, trust or other body of persons
 
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whether incorporated or not incorporated and whether domiciled in Ireland or elsewhere and that the objects of the Company as specified in each of the foregoing paragraphs of this clause shall be separate and distinct objects and shall not be in anyway limited or restricted by reference to or inference from the terms of any other paragraph or the name of the Company and (ii) any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
4.
The liability of each Member is limited to the amount from time to time unpaid on such Member’s Shares.
5.
The authorised share capital of the Company is €25,000 and US$[ • ]1 divided into 25,000 Euro Deferred Shares of €1.00 each, [ • ]1 Ordinary Shares of US$0.01 each and 100,000,000 Preferred Shares of US$0.01 each.
6.
The shares forming the capital, increased or reduced, may be increased or reduced and be divided into such classes and issued with any special rights, privileges and conditions or with such qualifications as regards preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended Articles of Association and regulations of the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Company’s Articles of Association for the time being.
7.
Capitalised terms that are not defined in this Memorandum of Association bear the same meaning as those given in the Articles of Association of the Company.
1
This number will be finalized following the Reverse Stock Split, if implemented. It is expected to be between approximately US$1,120,000 and US$1,300,000 (depending on the share consolidation ratio as ultimately determined by the board of directors in its absolute discretion).
2
This number will be finalized following the Reverse Stock Split, if implemented. It is expected to be between approximately 12,000,000 and 30,000,000 (depending on the share consolidation ratio as ultimately determined by the board of directors in its absolute discretion).
 
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COMPANIES ACT 2014
A PUBLIC COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
NABRIVA THERAPEUTICS PUBLIC LIMITED COMPANY
 
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TABLE OF CONTENTS
PRELIMINARY A-10
A-12
A-12
A-13
A-14
A-15
A-15
A-15
A-16
A-16
A-18
A-19
A-19
A-20
FORFEITURE A-21
A-22
A-22
A-23
A-24
A-24
A-25
A-26
A-29
A-29
DIRECTORS A-30
A-31
A-32
MINUTES A-33
A-34
A-34
A-35
A-36
A-37
SECRETARY A-38
SEAL A-38
A-39
CAPITALISATION A-40
ACCOUNTS A-40
AUDIT A-41
NOTICES A-41
A-43
 
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A-44
A-44
INDEMNITY A-45
A-46
A-46
A-46
 
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PRELIMINARY
1.
Sections 43(2), 43(3), 65(2)-(7), 77-81, 83(3), 94(1), 95(1), 96(2)-(11), 124, 125, 126(2) to (8), 144(3)-(4), 148(2), 158-165, 178(2), 180(5), 181(1), 181(6), 182(2), 182(5), 183(3), 186(c)(i), 187, 188, 193, 218(3)-(5), 229, 230, 338(5)-(6), 618(1)(b), 620(8) 1090, 1092, and 1113 of the Companies Act shall not apply to the Company. The provisions of the Companies Act which are stated therein to apply to a public limited company, save to the extent that its constitution is permitted to provide or state otherwise, will apply to the Company subject to the alterations contained in these Articles, and will, so far as not inconsistent with these Articles, bind the Company and its Members.
2.
2.1.
In these Articles:
“address”
includes any number or address used for the purposes of communication by way of electronic mail or other electronic communication.
“Adoption Date”
Means 23 June 2017.
“Articles” or “Articles of Association”
means these articles of association of the Company, as amended from time to time by Special Resolution.
“Assistant Secretary”
means any person appointed by the Board from time to time to assist the Secretary.
“Auditors”
means the persons for the time being performing the duties of the statutory auditors of the Company.
“Board”
means the board of Directors for the time being of the Company.
“1990 Regulations”
The Companies Act 1990 (Uncertificated Securities) Regulations 1996 (S.I. No. 68 of 1996) as may be amended from time to time.
“Chairperson”
means the chairperson of the Board from time to time and/or chairperson of a general meeting of the Company as the context may require.
“clear days”
means, in relation to a period of notice, that period excluding the day when the notice is given or deemed to be given and the day for which notice is being given or on which an action or event for which notice is being given is to occur or take effect.
“Companies Act”
means the Companies Act 2014 and every statutory modification, replacement and re-enactment thereof for the time being in force.
“Company”
means Nabriva Therapeutics plc.
“Court”
means the Irish High Court.
“Directors”
means the directors for the time being of the Company.
“dividend”
includes dividends, final dividends, interim dividends and bonus dividends.
“electronic communication”
shall have the meaning given to those words in the Electronic Commerce Act 2000.
“electronic signature”
shall have the meaning given to those words in the Electronic Commerce Act 2000.
“Enterprise”
means the Company and any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise or entity which a person is or was serving at the request of the Company;
 
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“Exchange”
means any securities exchange or other system on which the Shares of the Company may be listed or otherwise authorised for trading from time to time.
“Exchange Act”
means the Securities Exchange Act of 1934 of the United States of America.
“Member”
means a person who has agreed to become a member of the Company and whose name is entered in the Register of Members as a registered holder of Shares.
“Memorandum”
means the memorandum of association of the Company as amended from time to time by Special Resolution.
“month”
means a calendar month.
“Official”
means a director, officer, secretary, employee, trustee, agent, partner, managing member, fiduciary or other official of the Company or another Enterprise;
“Ordinary Resolution”
means an ordinary resolution of the Company’s Members within the meaning of section 191 of the Companies Act.
“paid-up”
means paid-up in accordance with the Companies Act as to the nominal value and any premium payable in respect of the issue of any Shares and includes credited as paid-up.
“Redeemable Shares”
means redeemable shares in accordance with the Companies Act.
“Register of Members”