(ii)    who materially breaches its obligations under its employment agreement or mandate with vVARDIS and/or any of its Subsidiaries;

 

(iii)        who materially breaches its obligations under the Option Agreement, this Option Plan and/or the Shareholders’ Agreement (unless such breach and its effects are fully cured within twenty (20) days upon notification in writing of the breach by vVARDIS);

 

(iv)       who has been determined after independent investigation to have engaged in verbal, written, or physical harassment or abuse of a sexual nature; or

 

(v)        who makes or publishes any Disparaging Remarks to any other person about: (i) vVARDIS or any Subsidiary; (ii) any business conducted by vVARDIS or any Subsidiary; or (iii) any past or present member of vVARDIS’ or of any of its Subsidiary’s management or board of directors in their capacity as such; provided that, nothing in this Agreement will prohibit a Beneficiary from complying with any valid subpoena or court order or from exercising any legal rights to which a Beneficiary is entitled and a Beneficiary shall not be considered a Bad Leaver for making truthful statements in response to legal process, required governmental testimony or filings, or administrative or arbitral proceedings (including, without limitation, depositions in connection with such proceedings), rebutting statements of others or making normal competitive type statements that are not derogatory in nature.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3.3

Option Grant Dates

 

Unless provided otherwise in the respective Option Agreement, Option Grants shall be made solely with effect as per (i) the first trading day of a calendar quarter if the Shares are listed on any exchange or (ii) the first banking day in Zurich of a calendar quarter if the Shares are not listed.

 

3.4

Maximum Available Options/Shares

 

Subject to Clause 13 (Changes in Capital Structure), the maximum aggregate number of Shares for which the Board may grant Options to Beneficiaries under this Option Plan shall at all times be covered by sufficient conditional share capital from time to time created by vVARDIS for the purpose of this Option Plan and any similar incentive or compensation plan.

 

 

Unless provided otherwise in this Plan or the respective Option Agreement, the principal terms of Options are as follows:

 

(i)      Issuance Price: Options will be granted to eligible Beneficiaries free of charge (i.e., for no consideration).

 

(ii)      Exercise Price: Nominal value per Share as may be adjusted from time to time in accordance with Clause 13 (Changes in Capital Structure).

 

(iii)       Vesting: Subject to continuous employment or mandate of the relevant Beneficiary and the non-occurrence of a Bad Leaver Event in respect of such Beneficiary, 25% of the Options granted to such Beneficiary (rounded up to the next whole number) shall vest and become exercisable on each anniversary of the Granting Date, so that on the 4th anniversary of the Granting Date the last tranche of Options of the Options shall vest and become exercisable.

 

(iv)        Accelerated Vesting: Subject to continuous employment or mandate of the relevant Beneficiary and the non-occurrence of a Bad Leaver Event in respect of such Beneficiary, upon the occurrence of an Acceleration Event, all unvested Options at that time shall vest and become exercisable immediately.

 

(v)         Forfeiture: Upon and with effect as of the occurrence of a Bad Leaver Event, all (unvested and/or vested) Options non- exercised at that time shall terminate, forfeit, cease to exist and discontinue being exercisable immediately, irrevocably and automatically (see Clause 11.2 (Bad Leaver)).

 

(vi)       Exercise Period: Subject to earlier forfeiture under this Option Plan, vested Options shall be exercisable until and including the 10th anniversary of the Granting Date. Options that are not exercised in accordance with Clause 5.1 (Time of Exercise) on or before the lapse of the Exercise Period shall expire immediately, irrevocably, and automatically at expiry by lapse of time.

5.3

Cash Payment

 

Upon delivery of the Notice of Exercise in accordance  with Clause 5.1 (Time of Exercise) and the Declaration of Assignment in accordance with Clause 5.2 (Declaration of Assignment), the relevant Exercise Price and, if requested by vVARDIS, the applicable Tax Withholding shall  be paid in full in cash within 3 business days from the Options exercise by or on behalf of the relevant Beneficiary (or its heirs), without any deduction, set-off, right to withhold, by wire transfer in immediately available funds to a bank account specified by vVARDIS for such purpose from time to time.

 

Failure to pay the Exercise Price in accordance with this Clause 5.3 (Cash Payment) in time shall render an exercise of Options invalid.

 

5.4

Settlement of Options upon Exercise

 

Upon valid exercise of vested Options by a Beneficiary in accordance with this Option Plan and the Option Agreement, the relevant number of Options shall be settled by vVARDIS by way of:

 

(i)         issuance or transfer of the relevant number of Shares to the Beneficiary; and

 

(ii)       delivery of a confirmation of registration in the share register of vVARDIS evidencing that the relevant number of Shares are being held by the Beneficiary.

 

Notwithstanding anything contained herein and in any Option Agreement to the contrary, all Shares issued or transferred to the Beneficiary upon valid exercise of Options under this Option Plan and the respective Option Agreement shall be subject to the terms and conditions of the Shareholders’ Agreement.

 

 

Options granted under this Option Plan shall not be sold, pledged, assigned, encumbered, transferred or disposed of in any form or way other than by will or inheritance law, and any such sale, pledge, assignment, encumbrance, transfer or disposal shall be null and void as between the parties thereto and towards vVARDIS and the Beneficiary. Bindingness of Shareholders’ Agreement.

 

Each Beneficiary hereby agrees to be a party to, and to be automatically bound by, the Shareholders’ Agreement (attached hereto as Annex 3) from the issuance or transfer of Shares to such Beneficiary and all rights and obligations set out in the Shareholders’ Agreement shall be deemed to be automatically applicable to the respective Beneficiary with effect from the issuance or transfer of Shares to such Beneficiary.

 

 

7.1

Restricted Shares

 

Shares issued or transferred to a Beneficiary upon exercise of Options may be restricted (gesperrte Aktien) during a certain period of time (a Restriction Period), thereby qualifying as Restricted Shares, as evidenced in the relevant Option Agreement.

 

Although a Beneficiary acquires legal ownership in Restricted Shares, the Beneficiary is not entitled to sell, pledge, assign, encumber, transfer or dispose of in any other form or way Restricted Shares for so long as they are restricted, i.e. subject to the Restriction Period.

9.2

Lock-Up Agreements with underwriters etc.

 

All Shares held by a Beneficiary on an initial or subsequent listing of Shares shall be subject to customary limitations in terms of transferability (lock-up/market stand-off) for a period following a listing as required by (i) the underwriters/joint global coordinators, (ii) applicable listing requirements or (iii) reasonably deemed appropriate by the board to reduce downward pressure on the share price following an IPO or subsequent listing.

 

9.3

Key Personnel Beneficiaries

 

Unless expressly otherwise evidenced in the individual Option Agreement, the following lock-up and clawback provisions apply to each Beneficiary qualifying as Key Personnel immediately prior to the occurrence of an Acceleration Event:

 

(i)          All Shares qualifying as Restricted Shares immediately prior to the occurrence of an Acceleration Event shall be subject to a lock-up period of 18 months commencing on the date of the occurrence of the Acceleration Event. Subject to continuous employment or mandate of the relevant Beneficiary and the non-occurrence of a Bad Leaver Event in respect of such Key Personnel Beneficiary, a third of the entire portion of such Shares shall be released semi-annually from such lock-up undertaking, so that all such Shares (subject to continuous employment or mandate of the relevant Beneficiary and the non- occurrence of a Bad Leaver Event) are released from such lock-up undertaking 18 months after the occurrence of an Acceleration Event. For the avoidance of doubt, Shares qualifying as Unrestricted Shares immediately prior to the occurrence of an Acceleration Event shall not be subject to the lock-up undertaking set forth in this Clause 9.3.

 

(ii)         Upon and with effect as of the occurrence of a Bad Leaver Event or if the employment or mandate of a Key Personal Beneficiary is terminated by the relevant Key Personnel Beneficiary, vVARDIS has the right to purchase from the relevant Key Personnel Beneficiary all Shares, which at the occurrence of a Bad Leaver Event or the termination of the employment or mandate (Kündigung des Arbeitsverhältnisses oder des Auftrags) by the Key Personnel Beneficiary are still subject to the lock-up undertaking set forth in sub-clause (i) above. The purchase price payable by vVARDIS to the Key Personnel Beneficiary shall be the (weighted average) Exercise Price paid by the Beneficiary for the Shares still being subject to the lock-up undertaking set-forth in this Clause 9.3.

 

 

vVARDIS may, at its discretion, require that a Beneficiary, upon issuance or transfer of Shares to such Beneficiary, agrees to vote such Shares pursuant to the terms of a voting agreement (Stimmbindungsvereinbarung) to be entered into by and among Beneficiaries, Investors and/or Existing Shareholders (such voting agreement to be in a form and substance as requested by vVARDIS from time to time).

 

 

11.1

Good Leaver

 

A Beneficiary qualifying as a Good Leaver will, as long as it qualifies as such:

 

(i)        remain entitled to and keep the Options vested on or before the Termination Date if the Beneficiary has timely exercised its Options in accordance with Clause 5.1 (Time of Exercise);

it being understood that no such modification, provision or cash settlement pursuant to (i) – (iii) of this Clause 12 (Effect of an Acceleration Event) shall be deemed to materially adversely affect the then accrued rights of Beneficiaries under this Option Plan.

 

 

In the event of a change, other than a share capital increase, relating to the Shares through reclassification, recapitalization, subdivision, share dividend, share split-up or otherwise in vVARDIS’ corporate structure, the Board shall, to the extent permissible by law, adjust the terms of the Options then outstanding to ensure that the Beneficiaries will, upon exercise of an Option, receive in respect of such Option the same value and type of shares that each Beneficiary would have been entitled to receive without such change.

 

 

Options may be subject to taxation including income taxes, withholding taxes, transfer taxes and/or social security. In Switzerland, Options will be subject to Swiss income tax and Swiss social security contributions upon exercise. A subsequent sale of the Shares acquired upon exercise of Options may, depending on the individual circumstances and the amount of the capital gain realized, trigger Swiss income tax and Swiss social security contributions as well. Social security contributions legally due will be borne by vVARDIS or Subsidiary and the relevant Beneficiary in accordance with applicable law and regulations.

 

Depending on the Beneficiary’s residence, place of work or nationality, Options may be subject to personal taxes and/or social security contributions in jurisdictions other than Switzerland. Each Beneficiary is responsible for a proper declaration and payment of its personal taxes, including social security contributions and capital gains taxes, if any, that may arise from participation in this Option Plan, Option Grants, the exercise of Options and/or Shares acquired or sold after exercise of Options in any relevant jurisdiction.

 

 

15.1

No Shareholder Rights

 

An Option does neither include nor confer any shareholder rights in vVARDIS or any of its Subsidiaries.

 

15.2

No Right to Future Grants

 

A participation in this Option Plan shall not confer any right to or entitlement of a Beneficiary to be granted any Option, let alone any specific number of Options, in the future or to participate in any way or form in any future employee participation or similar incentive or compensation plan. Rather, the granting of any Op- tion shall be at the sole discretion of the Board.

 

15.3

No Right to Continued Employment or Mandate

 

This Option Plan does not constitute an employment agreement or mandate. Nothing contained herein shall confer any rights of a Beneficiary as an employee or consultant or modify the terms of the Beneficiary’s respective employment agreement or mandate or restrict vVARDIS’ or a Subsidiary’s right to terminate the employment relationship of or mandate with any Beneficiary at any time, with or without Cause, or to adjust the compensation of any Beneficiary.

The Board shall have the power and authority to make any modification or amendment to the Plan at any time throughout the term of this Option Plan (i) as it deems fit (including pursuant to Clause 12 (Effect of an Acceleration Event) or Clause 17 (Term and Termination)) to the extent such modification or amendment does not materially adversely affect the then accrued rights of Beneficiaries hereunder or (ii) as may be necessary to comply with or conform to applicable laws.

 

 

Unless explicitly provided otherwise in this Option Plan, in case of a conflict or discrepancy between the terms and conditions of this Option Plan and an individual Option Agreement the terms and conditions of such individual Option Agreement shall prevail to the extent of such conflict or discrepancy.

 

 

The terms and conditions of this Option Plan and any respective Option Agreement shall be kept strictly confidential and may be shared only with the spouse or life-partner and the personal advisors of the Beneficiary unless disclosure is required by law.

 

 

If at any time any provision of this Option Plan or a respective Option Agreement is or becomes invalid or unenforceable, then neither the validity nor the enforceability of the remaining provisions of this Option Plan and/or such Option Agreement or the remaining part of the provision of the Plan and/or such Option Agreement shall in any way be affected or impaired thereby and the parties agree to replace the invalid or unenforceable provision or part thereof by a valid or enforceable provision which shall best reflect the parties’ original intention and shall to the extent possible achieve the same economic result.

 

 

This Option Plan shall be subject to and governed by, and construed and interpreted in accordance with, substantive Swiss law to the exclusion of the rules set forth in the United Nations Convention on the International Sale of Goods.

 

Any dispute arising out of or in connection with this Option Plan, including its validity, breach or termination, shall be submitted to the exclusive jurisdiction of the ordinary courts of Zug, Canton of Zug, Switzerland.