Form of Officer STOCK OPTION AWARD
Exhibit 10.44
Grant No. [ ]
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Name: |
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Number of Shares of Stock Subject to Option: |
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Price Per Share: |
$ |
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Grant Date: |
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Vesting Start Date: |
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Form of
Officer STOCK OPTION AWARD
granted under Appendix D to the
2013 Share Incentive Plan
This agreement (this “Agreement”) evidences a stock option granted by Oxford Immunotec Global PLC (the “Company”) to the undersigned (the “Optionee”) pursuant to the Company’s 2013 Share Incentive Plan and Appendix D thereto (together, as amended from time to time, the “Plan”).
1. Grant of Option. On the grant date set forth above (the “Grant Date”) the Company granted to the Optionee an option (the “Option”) to purchase, on the terms provided herein and in the Plan, up to the number of shares of Stock set forth above (the “Shares”) at the exercise price per Share set forth above, in each case subject to adjustment pursuant to Rule 12 of the Plan in respect of transactions occurring after the date hereof.
The Option evidenced by this Agreement is intended to be an Unapproved Option. The Optionee is an employee of the Company and/or of one or more subsidiaries of the Company with respect to which the Company has a “controlling interest” as described in Treas. Regs. §1.409A-1(b)(5)(iii)(E)(1).
2. Meaning of Certain Terms. Each initially capitalized term used but not separately defined herein has the meaning assigned to such term in the Plan. The following terms shall be defined as set forth below:
“Option Tax Liability” shall mean any liability or obligation of the Company and/or any subsidiary to account (or pay) for income tax (under the UK withholding system of PAYE (pay as you earn)) or any other taxation provisions and primary class 1 National Insurance Contributions in the United Kingdom to the extent arising from the grant, exercise, assignment, release, cancellation or any other disposal of the Option or arising out of the acquisition, retention and disposal of the Shares acquired under this Plan.
“Personal Representatives” shall mean the personal representative(s) of the Optionee (being either the executors of his or her will or if he or she dies intestate the duly appointed administrator(s) of his or her estate) who have provided to the Board evidence of their appointment as such.
Unapproved Option Agreement (EU/UK) Officer – CEO - [Name]
2013 Share Incentive Plan
“Secondary NIC Liability” shall mean any liability to employer’s Class 1 National Insurance Contributions to the extent arising from the grant, exercise, release or cancellation of the Option or arising out of the acquisition, retention and disposal of the Shares acquired pursuant to the Option.
“Unapproved Option” shall mean an option over shares in the Company that is neither an HM Revenue & Customs approved company share option (under Schedule 4 ITEPA) nor an enterprise management incentive (EMI) option which meets the requirements of Schedule 5 ITEPA.
3. Vesting. Unless earlier terminated, forfeited, relinquished or expired, and subject to the Optionee’s continued employment through each vesting date, the Option shall vest and become exercisable in four (4) equal annual installments beginning on the first anniversary of the Vesting Start Date, with the number of Shares that vest on any such date being rounded down to the nearest whole Share and the Option becoming vested as to 100% of the Shares on the fourth anniversary of the Vesting Start Date. For the avoidance of doubt, the Option shall vest as follows:
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Percentage of Option Vested |
Vesting Date |
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25% |
First anniversary of Vesting Start Date |
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25% |
Second anniversary of Vesting Start Date |
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25% |
Third anniversary of Vesting Start Date |
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25% |
Fourth anniversary of Vesting Start Date |
Notwithstanding the foregoing, in the event the Optionee is on an approved leave of absence from active employment for any reason, vesting will be suspended with respect to the Option during the period of the Optionee’s leave of absence that extends beyond the first eight consecutive weeks of such leave (it being understood that upon the Optionee’s return to active employment or service following such leave, vesting hereunder shall resume as of the first day of such return to active service).
(a). Effect of a Change in Control. If following the occurrence of a Change in Control (as defined below), the Optionee’s employment is terminated by the Company other than for Cause, or terminated by the Optionee for Good Reason (as defined below), then the portion of the Option that has not vested as of the date of such termination shall become fully vested and exercisable in accordance with the terms of this Agreement (the “Accelerated Vesting”). If the Optionee’s employment is terminated by the Optionee for Good Reason as defined in Paragraph 3(d)(ii)(1) through (8), Accelerated Vesting will only apply if the event constituting Good Reason (as defined in Paragraph 3(d)(ii)(1) through (8)) occurred within one year of the Change in Control and the Optionee provides notice to the Company of his election to terminate employment within ninety (90) days of the occurrence of the event constituting Good Reason.
Unapproved Option Agreement (EU/UK) Officer – CEO - [Name]
2013 Share Incentive Plan
(b). Definition of Change in Control. For purposes of this Agreement, “Change in Control” means the first to occur of any of the following events:
(i). an event in which any “person” as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the “1934 Act”) (other than (A) the Company, (B) any subsidiary of the Company, (C) any trustee or other fiduciary holding securities under an employee benefit plan of the Company or of any subsidiary of the Company, and (D) any company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), is or becomes the “beneficial owner” (as defined in Section 13(d) of the 1934 Act), together with all affiliates and associates (as such terms are used in Rule 12b-2 of the General Rules and Regulations under the 1934 Act) of such person, directly or indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company’s then outstanding securities, unless the transaction or transactions which resulted in the person becoming such a beneficial owner were approved by a majority of the directors on the Board;
(ii). the consummation of a merger or consolidation of the Company with any other company, other than (A) a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any subsidiary of the Company, more than 60% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; (B) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) after which no “person” “beneficially owns” (with the determination of such “beneficial ownership” on the same basis as set forth in clause (i) of this definition) securities of the Company or the surviving entity of such merger or consolidation representing 40% or more of the combined voting power of the securities of the Company or the surviving entity of such merger or consolidation; or (C) a merger or consolidation after which individuals who were directors on the Board immediately prior to such merger or consolidation constitute at least a majority of the board of directors of the Company or its successor (or any parent thereof) immediately after such merger or consolidation;
(iii). if, during any period of two consecutive years (not including any period prior to the date the Plan was initially adopted), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has conducted or threatened a proxy contest, or has entered into an agreement with the Company to effect a transaction described in clause (i), (ii) or (iv) of this definition) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office, who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority thereof; or
(iv). the complete liquidation of the Company or the sale or disposition by the Company of all or substantially all of the Company’s assets.
Unapproved Option Agreement (EU/UK) Officer – CEO - [Name]
2013 Share Incentive Plan
(c). Additional Definitions.
(i). Cause shall have the meaning set forth in the 2013 Share Incentive Plan.
(ii). Good Reason means any of the following: (1) a material reduction in the Optionee’s base salary, unless such reduction is effected contemporaneously or in conjunction with a broader reduction in pay of other senior executives; (2) a material reduction in the Optionee’s incentive compensation participation level (target incentive as a percentage of base salary) from what it has been at any time within the immediately preceding three years, unless such reduction is effected contemporaneously or in conjunction with a broader reduction in senior executive pay or incentive pay for other senior executives; (3) a material change in the equity compensation benefits available to the Optionee, unless such change is effected contemporaneously or in conjunction with a broader change in equity compensation benefits available to other senior executives; provided that the imposition of performance targets for the Optionee’s equity compensation benefits shall not give rise to Good Reason, nor shall any difference in performance targets for equity compensation benefits provided to the Optionee and other senior executives constitute Good Reason; (4) the imposition of a change, not previously approved by the Optionee, whereby the Optionee’s primary office location (where he is required to be physically present for the majority of time when he is not engaged in work-related travel) moves in such a way as to increase his one-way commuting distance by more than 20 miles; (5) the imposition of a requirement by the Board of Directors or other authority to whom the Optionee reports, without the approval of the Optionee, that increases the number of days of his international travel by more than ten percent (10%) from the average of such travel days during the immediately preceding two years; (6) the imposition by the Board of Directors or other authority to whom the Optionee reports of a work schedule that results in a materially adverse change to the Optionee’s income tax residency status; (7) failure of the Board of Directors to recommend the Optionee for reelection to the Board when his term expires unless such failure is prompted by legal or corporate governance considerations; or (8) if, at any time on or after the one year anniversary of a Change in Control but prior to the third anniversary of the Change in Control, there is a change in the composition of the Board of Directors to whom the Optionee reports so that a majority of such Board is composed of individuals who were not directors immediately prior to the Change in Control.
4. Exercise of Option. No portion of the Option may be exercised until it vests and becomes exercisable in accordance with the terms of this Agreement. Each election to exercise must be made in accordance with the terms and conditions set forth in the Plan and comply with such rules as the Administrator prescribes from time to time and must be accompanied by payment in full in the form of cash or a check acceptable to the Administrator, to the extent permitted by the Administrator, through a broker-assisted cashless exercise program acceptable to the Administrator, or by such other form of payment, if any, as may be acceptable to the Administrator. Unless terminated earlier in accordance with the terms and provisions of the Plan and this Agreement, the latest date on which the Option or any portion thereof may be exercised is the date that is the tenth anniversary of the Grant Date (the “Final Exercise Date”); provided, however, if at such time the Optionee is prohibited by applicable law or written Company policy applicable to the Optionee and similarly situated employees from engaging in any open-market sales of Stock, the Final Exercise Date will be automatically extended to thirty (30) days following the date the Optionee is no longer prohibited from engaging in such open-market sales. Any portion of the Option that remains outstanding and has not been exercised by the Final Exercise Date will thereupon immediately terminate. Upon any earlier termination of employment, the provisions of Rule 8.4.1 – 8.4.4 of the Plan shall apply.
Unapproved Option Agreement (EU/UK) Officer – CEO - [Name]
2013 Share Incentive Plan
5. Forfeiture; Recovery of Compensation. By accepting the Option, the Optionee expressly acknowledges and agrees that his or her rights, and those of any permitted transferee of the Option, under the Option, to any Stock acquired under the Option or to proceeds from the disposition thereof, are subject to Rule 6.6 of the Plan (including any successor provision). Nothing in the preceding sentence shall be construed as limiting the general application of Section 9 of this Agreement.
6. Nontransferability. Neither the Option nor any rights with respect to this Agreement may be sold, assigned, transferred (other than on the Optionee’s death to the Optionee’s Personal Representatives).
7. Taxes.
Withholding. The Optionee expressly acknowledges and agrees that the Optionee’s rights hereunder, including the right to be issued shares upon exercise, are subject to the Optionee promptly paying to the Company in cash (or by such other means as may be acceptable to the Administrator in its discretion) all taxes required to be withheld (including any Option Tax Liability and any Secondary NIC Liability). No shares will be transferred pursuant to the exercise of this Option unless and until the person exercising this Option has remitted to the Company an amount in cash sufficient to satisfy any federal, state, or local withholding tax requirements, or has made other arrangements satisfactory to the Company with respect to such taxes. The Optionee authorizes the Company and its subsidiaries to withhold such amount from any amounts otherwise owed to the Optionee, but nothing in this sentence shall be construed as relieving the Optionee of any liability for satisfying his or her obligation under the preceding provisions of this Section. The Optionee also agrees to sign a section 431 election (being an election made under section 431 of the Income Tax (Earnings and Pensions) Act 2003) on or before the exercise of this Option and, as a condition to the exercise of this Option, the Optionee shall pay on exercise the amount of any Option Tax Liability and any Secondary NIC Liability.
8. Effect on Employment. Neither the grant of the Option, nor the issuance of Shares upon exercise of the Option, will give the Optionee any right to be retained in the employ or service of the Company or any of its affiliates, affect the right of the Company or any of its affiliates to discharge or discipline such Optionee at any time, or affect any right of such Optionee to terminate his or her employment or service at any time.
9. Provisions of the Plan. This Agreement is subject in its entirety to the provisions of the Plan, which are incorporated herein by reference. A copy of the Plan as in effect on the Grant Date has been furnished to the Optionee. By exercising all or any part of the Option, the Optionee agrees to be bound by the terms of the Plan and this Agreement. In the event of any conflict between the terms of this Agreement and the Plan, the terms of the Plan shall control.
Unapproved Option Agreement (EU/UK) Officer – CEO - [Name]
2013 Share Incentive Plan
10. Acknowledgements. The Optionee acknowledges and agrees that (i) this Agreement may be executed in two or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument, (ii) this agreement may be executed and exchanged using facsimile, portable document format (PDF) or electronic signature, which, in each case, shall constitute an original signature for all purposes hereunder and (iii) such signature will be binding against the Company and will create a legally binding agreement when this Agreement is countersigned by the Optionee.
This Agreement has been executed and delivered as a deed on [ ].
SIGNED as a Deed
By [insert name of Optionee]
____________________________________
in the presence of:
_____________________________________
Witness signature:
Name:
Address:
Occupation:
SIGNED as a Deed
By OXFORD IMMUNOTEC GLOBAL PLC
acting by the under-mentioned
person(s) acting on the authority
of the Company in accordance
with the laws of the territory of
its incorporation
_____________________________________
Authorised signatory
_____________________________________
Authorised signatory
Unapproved Option Agreement (EU/UK) Officer – CEO - [Name]
2013 Share Incentive Plan
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