Exhibit 4.3
This is a free translation from the French language and is supplied solely for information purposes. Only the original version in French language has legal force.
EDAP TMS
(the “Company”)
Capital of 4,373,013.32 Euros
Headquarters : Parc d’Activité de La Poudrette Lamartine,
4, rue du Dauphiné, 69120 VAULX-EN-VELIN
316488204 RCS LYON
SHARE PURCHASE OPTION PLAN
Ordinary and Extraordinary Assembly Meeting June 28, 2019
Board of Directors: June 11, 2021
In accordance with the authorization granted by the ordinary and extraordinary general shareholders’ meeting of June 28, 2019 (the “Shareholders Authorization”), the Board of Directors decided on June 11, 2021, in compliance with the provisions of Articles L. 225-177 et seq. of the French Commercial Code:
- to determine the terms and conditions of the share purchase option plan as set out below, and
- to grant, on one or several occasions, two hundred ninety-two thousand four hundred and twenty-eight (292,428) options giving the right to purchase a maximum of two hundred ninety-two thousand four hundred and twenty-eight (292,428) shares of the Company, with a nominal value of €0.13 each, to some employees and/or employee officers of the Company as well as those of the affiliates of the Company within the meaning of Article L. 225-180 of the French Commercial Code and as defined in Section 424(f) and Section 3401(c) of the United States Internal Revenue Code of 1986, as amended (hereafter, the “Affiliates”):
The authorization granted by the shareholders on June 28, 2019 is valid until August 28, 2022 unless terminated earlier.
We wish to motivate and reward EDAP’s teams who will be entirely dedicated to successfully perform our U.S. as well as our worldwide business goals. To this end, the Board of Directors wishes to implement an incentive stock option program in favor of EDAP’s employees contributing to this project (the “Plan”).
The purposes of the Plan are:
- to attract and retain the best available personnel for positions of substantial responsibility;
- to provide additional incentive to Beneficiaries as such term is defined herein; and
- to promote the success of the Company's business.
| 3. | SHARES SUBJECT TO THE PLAN AND NUMBER OF OPTIONS TO PURCHASE SHARES |
The Board of Directors is authorized to use shares (i) that the Company already holds for having duly acquired them for allocation to employees and corporate officers pursuant to Article L.225-177 of the French Commercial Code, and (ii) for which the options, duly granted within one year of the acquisition of the shares, may no longer be exercised.
Subject to the provisions of Article L. 225-181 of the French Commercial Code, as applicable, and pursuant to the Shareholders Authorization, the maximum aggregate number of shares which may be optioned and issued is equal to 358,528 (the “Shares”).
On June 11, 2021, the Board of Directors decided to grant two hundred ninety-two thousand four hundred and twenty-eight (292,428) share purchase options (the “Options”) to Beneficiaries, this amount being the available balance of this authorization.
Should the Options expire or become unexercisable for any reason without having been exercised in full, the unpurchased Shares which were subject thereto shall, unless the Plan shall have been terminated prior to August 28, 2022, become available again for any future grant under the Plan to be made in accordance with the Shareholders Authorization.
The Chairman of the Board of Directors (président du conseil d’administration), the Chief Executive Officer (directeur général) and other deputy executive officers (directeurs généraux délégués) as well as any individual employed by the Company or by any of its Affiliates, under the terms and conditions of an employment contract, are eligible to receive Options to the extent otherwise legally eligible to receive Options under the Plan and in the Shareholders Authorization.
Subject to the provisions of the French Commercial Code, the Shareholders Authorization and the Plan, the Board of Directors shall have the authority, in its discretion, to determine the Beneficiaries to whom Options may be granted hereunder.
The list of Beneficiaries, who are French tax residents, with the exact number of Options allocated to each of them has been set by the Board of Directors at its meeting on June 11, 2021 (the “Beneficiaries”).
Notwithstanding any provisions in the Plan to the contrary, Options may not be granted to Beneficiaries owning more than ten percent (10%) of the Company’s share capital except as permitted under Article L. 225-185 of the French commercial code.
| 5. | DATE OF GRANT AND TERM OF THE PLAN |
The date of grant of an Option shall be, for all purposes, the date on which the Board of Directors decides to grant such Option (the “Date of Grant”).
No Option may be granted less than twenty (20) trading sessions after the detachment of a coupon entitling the holder to a dividend or a capital increase.
The Plan shall be effective as of June 11, 2021, and Options may be granted as of such date (which is the Date of Grant for the Options that the Board of Directors decided to grant to Beneficiaries on June 11, 2021) until August 28, 2022. The Plan shall continue in effect until the date of termination of the last Option in force, unless terminated earlier pursuant to Article 13 hereof.
The Company and each Beneficiary shall enter into an Option agreement evidencing the terms and conditions of an individual Options grant (the “Option Agreement”). Such Option Agreements shall be subject to the terms and conditions of the Plan. A written notice evidencing the main terms and conditions of an individual Options grant is part of the Option Agreement (the “Notice of Grant”). The form of such Option Agreement is attached as Appendix 1.
The grant will be definitive upon the Date of Grant provided that the Notice of Grant and the Option Agreement have been duly initialed (all pages except the signature page) and executed (signature page) by the Beneficiary and returned to the Company within one month following receipt of such documents by the Beneficiary.
The exercise price of each option to purchase shares (the “Purchase Price”) shall be set by the Board of Directors on the Date of Grant, by reference to the closing share price on the NASDAQ on the day preceding the Date of Grant, which may not be less than:
· 95% of the average price of the ADS of the Company listed on the NASDAQ stock market over the twenty (20) trading days preceding the Date of Grant, and
· 95% of the average purchase price of shares purchased by the Company for allocation to employees or corporate officers.
For a Date of Grant on June 11, 2021, the Purchase Price per Share is equal to 5.59 Euros.
New shares issued upon exercise must be fully paid-up at purchase.
The Purchase Price may not be modified for the duration of the Plan. However, the number of Shares under option as well as their Purchase Price may be adjusted, in the event that the Company implements one of the transactions set out in Article L. 225-181 paragraph 2 of the French Commercial Code.
| 7. | CONDITIONS PRECEDENT FOR EXERCISE OF THE OPTIONS/CONDITIONS UPON ISSUANCE OF SHARES |
7.1 PRESENCE IN THE COMPANY
7.1.1 Principle
The Options shall be null and void and may not be exercised by the Beneficiary, without the Company having to proceed with any formalities, in the case the Beneficiary is no longer employed with the Company or its Affiliates, as an employee or a company officer, for more than three (3) months following Termination, as defined below.
For the purpose of the Plan, “Termination” shall mean, depending upon the case, the date the Beneficiary’s resignation letter is sent or delivered, the date the Beneficiary’s dismissal letter is sent or the date of his removal as a company officer. Termination does not include leaves of absence which receive a prior approval from the Company. Such leaves of absence shall include leaves of more than three (3) months for illnesses or conditions about which the employee has advance knowledge, military leave, or any other personal leave.
Upon Termination, the Beneficiary may exercise his Options within a three (3) month period, as specified in the Notice of Grant, and only for the part of the Options that the Beneficiary was entitled to exercise at the date of Termination (but in no event later than the expiration of the term of such Options as set forth in the Notice of Grant). If, at Termination, the Beneficiary is not entitled to exercise his Options, the Shares covered by the unexercisable portion of Options shall become available again for any future grant in accordance with Article 3. If, after Termination, the Beneficiary does not exercise all of his Options within the time specified in the Notice of Grant, the Options shall terminate, and the Shares covered by such Options shall become available again for any future grant in accordance with Article 3.
7.1.2 Exceptions
As an exception to the provisions of Article 7.1.1, in case of death of the Beneficiary, his heirs may exercise the Options within six (6) months as from such death (but in no event later than the expiration of the term of the Option), provided the Beneficiary was authorized to exercise his Options at the time of his death and within the limits of shares allocated and exercisable. If after the death of the Beneficiary, his heirs do not exercise the Options within the six (6) month period or the Options expiration date, then the Options shall be null and void and the Shares covered by such Options shall become available again for any future grant in accordance with Article 3.
As an exception to the provisions of Article 7.1.1, in the event that the Beneficiary’s office term or employment relationship is terminated owing to Disability, as such term is defined below, the Beneficiary may exercise his Options at any time within six (6) months from the date of such Termination, but only to the extent that these options are exercisable at the time of Termination (but in no event later than the expiration of the term of such Options). If, at the date of Termination, the Beneficiary is not entitled to exercise all of his Options, the Shares covered by the unexercised portion of Options shall become available again for any future grant in accordance with Article 3. If after Termination, the Beneficiary does not exercise all of his or her Options within the time specified herein, the Options shall terminate, and the Shares covered by such Options shall become available again for any future grant in accordance with Article 3.
Similarly, the provisions of Article 7.1.1 are not applicable in the event that the Beneficiary decides to retire or his employer decides to pension him as defined in Article L. 1237-5 of the French Labor Code.
For the purposes of this Article 7.1.2 of the Plan:
“Disability” means disability as determined in categories 2 and 3 under Article L. 341-4 of the French Social Security Code and subject to the fulfillment of related conditions.
“Retirement” means that the employee has reached the age provided in Article L. 1237-5 of the French Labor Code and qualifies for a full pension subject to the fulfillment of related conditions, or any similar provision applicable to a foreign Affiliated Company.
| 8. | TERMS AND CONDITIONS OF EXERCISE OF THE OPTIONS |
8.1 EXERCISE RIGHT SUSPENSION
The Board of Directors may suspend the right to exercise the Options for a maximum duration of three (3) months in case transactions mentioned in Article L. 225-149-1, al. 1 of the French Commercial Code are carried out.
Beneficiaries will be informed of such suspension period in accordance with Article R. 225-133 of the French Commercial Code.
In the event that the term of the Options expires or terminates during the suspension period, the term of the Options may be postponed until one (1) more month following the suspension period.
8.2 SCHEDULE FOR EXERCISING OF THE OPTIONS
8.2.1 Principle
The Options become exercisable as follows:
| - | one-sixth of the Options, at the expiration of a period of six (6) months as from the Date of Grant of the Options by the Board of Directors (the “6 Month Anniversary”); and |
| - | with respect to the remaining five-sixths of the Options, one-thirty-sixth of the Options, each at the expiration of successive one (1) month periods as from the 6 Month Anniversary; and |
| - | at the latest within ten (10) years as from the Date of Grant. |
The number of Options that may be exercised pursuant to the above vesting schedule will always be rounded down to the nearest full number.
If the Beneficiary fails to exercise the Options in whole or in part within the said period of ten (10) years, the Options will lapse automatically.
8.2.2. Exceptions
By way of exception, the provisions of Article 8.2.1 shall not be applicable in the case any of the following operations is implemented:
| a) | tender offer, within the meaning of Article L. 433-1 of the French Monetary and Financial Code, relating to the shares of the Company or, as long as the shares of the Company are listed on the National Association of Securities Dealers Automated Quotation (NASDAQ), any similar operation carried out according to the NASDAQ regulations; |
| b) | exchange offer, within the meaning of Article L. 433-1 of the French Monetary and Financial Code, relating to the shares of the Company or, as long as the shares of the Company are listed on the NASDAQ, any similar operation carried out according to the NASDAQ regulations; |
| c) | cash tender and exchange offer relating in part to a cash tender offer and in part to an exchange offer or, as long as the shares of the Company are listed on the NASDAQ, any similar operation carried out according to the NASDAQ regulations; |
| d) | buyout offer within the meaning of Article L. 433-4 of the French Monetary and Financial Code, relating to the shares of the Company or, as long as the shares of the Company are listed on the National Association of Securities Dealers Automated Quotation (NASDAQ), any similar operation carried out according to the NASDAQ regulations.; or |
| e) | in the event of a merger of the Company into another corporation or of the sale by one or several shareholders, acting alone or in concert, of the Company to one or several third parties of a number of shares resulting in a transfer of more than fifty per cent (50%) of the shares of the Company to said third parties (a “Change in Control”). Notwithstanding the foregoing, a Change in Control must also constitute a “change in control event,” as defined in Treasury Regulation §1.409A-3(i)(5) with respect to any compensation or benefit that is subject to Section 409A of the U.S. Code. |
In the cases mentioned in clauses a) through d) above, the Beneficiaries shall be entitled to exercise all of their unexercised Options in one or several times as from the date of delivery of the initial offer (tender offer, exchange offer, cash tender and exchange offer and similar operations on the NASDAQ) to the relevant authority until the end of the expiration of the term of the Options.
In the case of a Change in Control as mentioned in clause e) above, unless otherwise decided by the Board of Directors, all of the Options that remain unexercisable as of immediately prior to the completion of the Change in Control shall become exercisable immediately prior to the completion of the Change in Control. Such fully exercisable Options shall then be subject to the terms set forth in Article 10.2.
Moreover, as an exception to the exercise schedule provided in Article 8.2.1 above, in case of death of the Beneficiary, his heirs may exercise the Options within a period of six (6) months as from the death of the Beneficiary, pursuant to Article 7.1.2.
8.3. TIME LIMIT FOR THE EXERCISE OF THE OPTIONS
The Options shall be exercised by the Beneficiary before the end of a period of ten (10) years as from the Date of Grant, e.g., before June 11, 2031 for a Date of Grant on June 11, 2021.
8.4. TERMS OF EXERCISE OF THE OPTIONS
(i) The Options may only be exercised if all the conditions provided under Articles 7 and 8 of the Plan are satisfied on the date of exercise of the Options.
(ii) In order to exercise his or her Options, the Beneficiary shall send to the legal representative of the Company, a notification indicating the number of Options that he or she wishes to exercise. The consideration for the Shares to be issued upon exercise of Options shall be paid either by wire transfer or bank check payable to the Company in an amount equal to the aggregate Purchase Price.
(iii) Furthermore, in the event that the sale of Shares under this Plan is not registered under the U.S. Securities Act of 1933 (the “U.S. Securities Act”) but an exemption is available which requires an investment representation or other representation, the Beneficiary shall represent and agree at the time of exercise that the Shares being acquired upon exercising this Option are being acquired for investment, and not with a view to the sale or distribution thereof, and shall make such other representations as are deemed necessary or appropriate by the Company and its counsel.
(iv) The Beneficiary will have the ownership and the enjoyment of the Shares on the date of exercise of the Options.
| 9. | CONDITIONS OF HOLDING AND SALE OF THE SHARES |
9.1. U.S. SECURITIES LAW RESTRICTIONS
The Shares to be issued from exercised Options have been registered under the U.S. Securities Act and may be offered or sold in the United States or to U.S. persons as defined under Rule 902 of the U.S. Securities Act.
Notwithstanding any other provision of the Plan or any agreement entered into by the Company pursuant to the Plan, the Company shall not be obligated, and shall have no liability for failure, to register, issue or deliver any Shares under the Plan unless such issuance or delivery would comply with applicable U.S. state and Federal laws, including securities laws, with such compliance determined by the Company in consultation with its legal counsel.
Regardless of whether the offering and sale of shares under this Plan have been registered under the U.S. Securities Act or have been registered or qualified under the securities laws of any U.S. state, the Company at its discretion may impose restrictions upon the sale, pledge or other transfer of such shares (including the placement of appropriate legends on stock certificates or the imposition of stop-transfer instructions) if, in the judgment of the Company, such restrictions are necessary or desirable in order to achieve compliance with the U.S. Securities Act, the securities laws of any state or any other law.
9.2 EXECUTIVE OFFICERS OF THE COMPANY
Without prejudice to the above, 10% of the Shares subscribed following the exercise of Options by the Chairman of the Board (président du conseil d’administration), the Chief Executive Officer (directeur général), and other deputy executive officers (directeurs généraux délégués) of the Company or of an Affiliated Company having its registered office in France, must be held in registered form and must not be sold, leased or converted to bearer shares until the mandate as executive officer is over.
The amount of Shares to be held shall be determined by taking into account all the shares already held pursuant to the requirements of the previous plans.
| 10. | PROTECTION OF THE INTERESTS OF THE BENEFICIARY |
10.1 GENERAL PROVISIONS
In the event of the carrying out by the Company of any of the financial operations pursuant to Article L. 225-181 of the French Commercial Code as follows:
| - | amortization or decrease of the share capital, |
| - | modification to the allocation of profits, |
| - | distribution of free shares, |
| - | capitalization of reserves, profits, issuance premiums, |
| - | the issuance of shares or securities giving right to shares to be subscribed for in cash or by set-off of existing indebtedness offered exclusively to the shareholders, |
the Company shall take the required measures to protect the interest of the Beneficiaries in the conditions set forth in Article L. 228-99 of the French Commercial Code.
The adjustment will be made in accordance with the provisions of Article R. 228.91 of the French Commercial Code.
10.2 ABSORPTION OF THE COMPANY
10.2.1 Transfer of the commitments to the Beneficiary(ies) of the contributions
In the case of a Change in Control or the Company is otherwise absorbed by another company, merges with one or several other companies to form a new company or split off, the company(ies) that benefit(s) from the contributions could substitute itself for the Company with respect to its duties toward the Beneficiary. In this case, the number and the price of the shares under option shall be determined either by applying the exchange ratio used for the operation, or by applying other terms and conditions defined by the parties to the operation.
10.2.2 Absence of transfer of the commitments to the Beneficiary(ies) of the contributions
In the case the company(ies) that benefit(s) from the contributions decide(s) not to substitute itself for the Company with respect to its duties toward the Beneficiary, the Options may be exercised by the Beneficiary within the period notified to him by the Board of Directors by registered letter with acknowledgement of receipt or letter with discharge. Failing that, the Options will terminate.
The shares of the Company no longer being listed on the NASDAQ market or listed on another exchange shall not challenge the rights and obligations of the Beneficiaries as they are provided herein.
| 12. | UNAVAILABILITY AND NON-TRANSFERABILITY OF THE OPTIONS |
Pursuant to Article L. 225-183, paragraph 2 of the French Commercial Code, until the Option has been exercised by the Beneficiary, the corresponding rights are unavailable.
An Option may not be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other than by will or by laws of descent or distribution and may be exercised, during the lifetime of the Beneficiary, only by the Beneficiary.
However, as it is provided in Article 7.1.2 hereof, in case of death of the Beneficiary, his heirs may exercise the Options within a period of six (6) months as from the death of the Beneficiary.
| 13. | AMENDMENT AND TERMINATION OF THE PLAN |
(a) Amendment and Termination
Subject to Article 13(b) hereof, the Board of Directors may at any time amend, alter, suspend or terminate the Plan to the extent permitted by applicable French or U.S. laws.
(b) Effect of amendment and termination
No amendment, alteration, suspension or termination of the Plan shall impair the rights of any Beneficiary, unless mutually agreed otherwise between the Beneficiary and the Board of Directors, which agreement must be in writing and signed by the Beneficiary and the Company.
| 14. | LIABILITY OF THE COMPANY |
14.1. The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by any counsel to the Company to be necessary to the lawful issuance or sale of any shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such shares as to which such requisite authority shall not have been obtained.
14.2. The Company and its Affiliates may not be held responsible in any way if the Beneficiary for any reason not attributable to the Company or its Affiliates was not able to exercise the Options or purchase the Shares.
14.3 Each Beneficiary understands that the Beneficiary may suffer adverse tax consequences as a result of the purchase or disposition of the Beneficiary’s Shares, for which the Company and its Affiliates shall not be held responsible. In this respect, each Beneficiary undertakes that it is not relying on the Company for any tax advice.
| 15. | INDEPENDENCE OF THE CLAUSES |
If any provision hereof is held prohibited or void, at any time, by a competent authority or judicial body, this shall not challenge the remaining provisions that shall be considered as independent and as having been written or rewritten, depending upon the case, without this prohibited or void provision.
It is intended that Options granted under the Plan shall qualify for the favorable tax and social security charges treatment applicable to Options granted under Sections L. 225-177 to L. 225-186-1 of the French Commercial Code, the French Tax Code and the French Social Security Code as amended.
The terms of the Plan shall be interpreted accordingly and in accordance with the relevant provisions set forth by French tax and social security laws (in particular, Sections 80 quaterdecies of the French Tax Code), as well as the French tax and social security administrations and the relevant guidelines released by the French tax and social insurance authorities and subject to the fulfilment of legal, tax and reporting obligations.
| 17. | APPLICABLE LAW AND COMPETENT TRIBUNALS |
This Plan shall be governed by and construed in accordance with the laws of France.
The tribunals located within the jurisdiction of the Court of Appeal of LYON shall be exclusively competent to determine any claim or dispute arising in connection herewith.
APPENDIX 1
FORM OF OPTION AGREEMENT
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