UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
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| Nexvet Biopharma public limited company | ||||
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October , 2015
Dear Nexvet Shareholder:
You are cordially invited to attend this year’s annual general meeting of shareholders of Nexvet Biopharma public limited company on Thursday, November 19, 2015, beginning at 4.00 p.m. The meeting will be held at the offices of Matheson, located at 70 Sir John Rogerson’s Quay, Dublin 2, Ireland. The matters to be acted on at the meeting are more fully described in the accompanying Notice of Annual General Meeting of Shareholders and proxy statement.
A copy of our annual report to shareholders is also enclosed for your information.
Whether or not you plan to attend the meeting, your vote is very important and we encourage you to vote promptly. After reading the proxy statement, please vote by telephone, by Internet, or by marking your vote on the enclosed proxy card, signing and dating the proxy card, and returning it to us in the enclosed postage-paid envelope. Instructions regarding all three methods of voting are provided on the proxy card. If you attend the meeting you will, of course, have the right to revoke the proxy and vote your shares in person.
We look forward to seeing you at the meeting.
| Sincerely yours, | |
| Mark Heffernan, Ph.D. | |
| Chief Executive Officer |
Notice of 2015 Annual GENERAL Meeting of Shareholders
To Be Held Thursday, November 19, 2015
The 2015 annual general meeting of shareholders (the “Meeting”) of Nexvet Biopharma public limited company, an Irish public limited company (the “Company”), will be held on Thursday, November 19, 2015, beginning at 4.00 p.m., local time, at the offices of Matheson, located at 70 Sir John Rogerson’s Quay, Dublin 2, Ireland, for the following purposes:
| 1. | To elect four (4) Class I directors to hold office until the 2017 Annual General Meeting of Shareholders and until their successors are duly elected and qualified or until their earlier resignation or removal; |
| 2. | To ratify the appointment of PricewaterhouseCoopers as the Company’s independent registered public accounting firm for the fiscal year ending June 30, 2016 and statutory auditor until the close of the next annual general meeting of shareholders, and to authorize the board of directors acting through the Audit Committee to fix its remuneration; |
| 3. | To approve amendments to the Memorandum of Association of the Company and adopt revised Articles of Association of the Company; and |
| 4. | To consider any other business properly presented at the Meeting or any adjournment or postponement thereof. |
The Company’s Irish statutory financial statements for the fiscal year ended June 30, 2015, including the reports of the directors and auditors thereon, will be presented and considered at the Meeting. There is no requirement under Irish law that such statements be approved by the shareholders, and no such approval will be sought at the Meeting.
Under the Company’s articles of association, Proposal 1, Proposal 2 and the receipt and consideration of the Irish statutory financial statements by the Company at the Meeting are deemed to be ordinary business, and Proposal 3 is deemed to be a special resolution.
If you were a shareholder of record at the close of business on October 15, 2015, you are entitled to notice of, and to vote at, the Meeting and any adjournment or postponement thereof. At the Meeting and for ten days prior to the Meeting, a complete list of shareholders entitled to vote at the Meeting will be available for examination by any shareholder, for any purpose relating to the Meeting, during ordinary business hours at our principal offices located at NIBRT (National Institute for Bioprocessing Research & Training), Foster's Avenue, Mount Merrion, Blackrock, Co. Dublin, Ireland.
| By order of the Board of Directors, | |
| /s/ Geraldine Farrell | |
| Geraldine Farrell | |
| Corporate Secretary |
October , 2015
| IMPORTANT: We hope you can join us at the Meeting. Regardless of whether you plan to attend, please read the enclosed Proxy Statement and vote by telephone, by Internet or by marking your vote on the enclosed proxy card, signing and dating the proxy card, and returning it to us in the enclosed postage-paid envelope. Your vote is important, so please return your proxy card or vote by telephone or by Internet promptly. If you attend the Meeting, you may choose to vote in person even if you have previously voted your shares. |
| If your shares are held through a broker, bank or other nominee and you wish to vote in person at the Meeting, you must obtain a legal proxy issued in your name from your broker, bank or other nominee. |
Proxy Statement for 2015 Annual General Meeting of Shareholders
Table of Contents
Nexvet Biopharma public limited company
National Institute for Bioprocessing
Research and Training
Foster’s Avenue, Mount Merrion
Blackrock, Co. Dublin, Ireland
Proxy Statement for the 2015 Annual GENERAL Meeting of Shareholders
The Board of Directors of Nexvet Biopharma public limited company is soliciting your proxy for the 2015 Annual General Meeting of Shareholders to be held on Thursday, November 19, 2015, and any adjournment or postponement thereof, for the purposes set forth in the accompanying Notice of Annual General Meeting of Shareholders. This proxy statement and related materials are first being mailed to shareholders on or about October , 2015. References in this proxy statement to “we,” “us,” “our,” “Nexvet,” “Nexvet Biopharma plc” or the “Company” are to Nexvet Biopharma public limited company, and references to the “annual meeting” are to the 2015 Annual General Meeting of Shareholders. When we refer to the Company’s fiscal year, we mean the annual period ending on June 30th. This proxy statement covers our 2015 fiscal year, which was from July 1, 2014 through June 30, 2015.
Only holders of record of ordinary shares at the close of business on October 15, 2015, which we refer to as the “record date,” will be entitled to notice of and to vote at the meeting and any adjournment thereof. As of the record date, ordinary shares were outstanding and entitled to vote.
A majority of the ordinary shares issued and outstanding as of the record date must be represented at the meeting, either in person or by proxy, to constitute a quorum for the transaction of business at the meeting. Your shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker, bank or other nominee) or if you attend the annual meeting in person. Abstentions and “broker non-votes” (shares held by a broker, bank or other nominee that does not have the authority, either express or discretionary, to vote on a particular matter) will each be counted as present for purposes of determining the presence of a quorum.
Vote Required to Adopt Proposals
Each of our ordinary shares outstanding on the record date is entitled to one vote on the Class I director nominee and one vote on each other matter. Directors will be elected by the affirmative vote of a majority of the shares present and entitled to vote. This means that the votes cast “for” a Class I director nominee must exceed the number of votes cast “against” that nominee. Under our Memorandum of Association (our “Memorandum”) and our Articles of Association (our “Articles,” and together with our Memorandum, our “Constitution”). The proposal to amend of our Constitution requires the affirmative vote of 75% of the votes cast at the annual meeting. With respect to each of the other proposals, approval of the proposal requires the affirmative vote of a majority of the votes cast at the annual meeting.
Effect of Abstentions and Broker Non-Votes
Abstentions and broker non-votes will not be considered votes cast at the annual meeting. Because the approval of all of the proposals is based on the votes cast at the annual meeting, abstentions and broker non-votes will not have any effect on the outcome of voting on the proposals.
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If you are a beneficial owner and hold your shares in “street name,” it is critical that you complete the voting instruction form provided by your broker, bank or other nominee if you want your vote to count. Under the rules governing brokers, banks and other nominees who are members of the Financial Industry Regulatory Authority, Inc., such brokers, banks and other nominees may vote uninstructed shares in their discretion on routine matters, but not on non-routine matters. Routine matters include the ratification of the appointment of the independent registered public accounting firm. Non-routine matters include the election of directors. Accordingly, unless you provide voting instructions, your broker, bank or other nominee may be unable to vote on non-routine proposals at the meeting. We encourage you to vote promptly, even if you plan to attend the annual meeting. In tabulating the voting results for any particular proposal, shares that constitute broker non-votes are not considered entitled to vote on that proposal.
If you complete and submit your proxy card or voting instructions, the persons named as proxies will follow your instructions. If you are a shareholder of record and you submit a proxy card or voting instructions but do not direct how to vote on each item, the persons named as proxies will vote as our board of directors recommends on each proposal. If you are a beneficial owner and you return your signed voting instruction form but do not indicate your voting preferences, please see “Effect of Abstentions and Broker Non-Votes” regarding whether your broker, bank, or other nominee may vote your uninstructed shares on a particular proposal.
Vote by Internet. You can vote by Internet. The website address for Internet voting can be accessed through the website printed on your proxy card or voting instruction form. You will need to use the control number appearing on your proxy card or voting instruction form. You can use the Internet to transmit your voting instructions until 11:59 p.m. Eastern Time on the day of the annual meeting. Internet voting is available 24 hours a day. If you vote by Internet, you do NOT need to vote by telephone or by mail.
Vote by Telephone. You can vote by telephone by calling the toll-free telephone number appearing on your proxy card or voting instruction form. You will need to use the control number appearing on your proxy card or voting instruction form. In order to cast your vote telephonically, you may transmit your voting instructions from any touch tone telephone until 11:59 p.m. Eastern Time on the day of the annual meeting. Telephone voting is available 24 hours a day. If you vote by telephone, you do NOT need to vote by Internet or by mail.
Vote by Mail. You can vote by mail by completing, signing, and dating the proxy card or voting instruction form and returning it in the prepaid return envelope. If you vote by returning a proxy card or voting instruction form, you do NOT need to vote by Internet or by telephone.
Vote in Person at the Annual Meeting. All shareholders as of the close of business on the record date can vote in person at the annual meeting. You can also be represented by another person at the annual meeting by executing a proper proxy designating that person to vote on your behalf. Even if you plan to attend the annual meeting, we recommend that you also vote either by telephone, by Internet, or by mail so that your vote will be counted if you later decide not to attend.
Nexvet is incorporated under Irish law, which permits electronically transmitted proxies, provided that each such proxy contains or is submitted with information from which the inspector of election can determine that such proxy was authorized by the shareholder. The electronic voting procedures provided for the annual meeting are designed to authenticate each shareholder by use of a control number to allow shareholders to vote their shares and to confirm that their instructions have been properly recorded.
If you are a shareholder of record, you may revoke your proxy and change your vote at any time before the polls close by returning a later-dated proxy card, by voting again by Internet or by telephone as more fully detailed on your proxy card, or by delivering written instructions to the Corporate Secretary before the annual meeting. Attendance at the annual meeting will not in and of itself cause your previously voted proxy to berevoked unless you specifically so request or vote again at the annual meeting. If your shares are held by a broker, bank or other nominee, you may change your vote by submitting new voting instructions to your broker, bank or other nominee, or, if you have obtained a legal proxy from your broker, bank or other nominee giving you the right to vote your shares, by attending the annual meeting and voting in person.
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We will bear the entire cost of soliciting proxies, including printing and mailing. In addition, we may reimburse brokers, banks or other nominees holding our ordinary shares beneficially owned by others for their reasonable, out-of-pocket costs of forwarding solicitation materials to such beneficial owners. We may use the services of our officers, directors and employees to solicit proxies, personally or by telephone, without additional compensation.
We will announce preliminary voting results at the annual meeting. We will report final results in a Form 8-K filed with the U.S. Securities and Exchange Commission (the “SEC”).
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Election of Directors
We have a classified board of directors currently consisting of four Class I directors and four Class II directors, who will serve until the annual meetings of shareholders to be held in 2015 and 2016, respectively, and until their respective successors are duly elected and qualified or until their earlier resignation or removal. At each annual meeting of shareholders, directors are elected for a term of two years to succeed those directors whose terms expire on the annual meeting dates.
The term of the Class I directors will expire on the date of the upcoming annual meeting. Accordingly, four people are to be elected to serve as a Class I directors of our board of directors at the annual meeting. Our board of directors has nominated Dr. George Gunn, Chris Brown, Dr. Cormac Kilty and John Payne, each current Class I directors, for reelection by our shareholders. If elected, each will serve as a Class I director until our annual general meeting of shareholders in 2017 and until his successor is duly elected and qualified or until his earlier resignation or removal.
Our board of directors has no reason to believe that the nominees listed above will be unable to serve as a director. If, however, any nominee becomes unavailable, the proxies will have discretionary authority to vote for a substitute nominee. There are no family relationships among any of our directors or executive officers.
The following table sets forth information regarding our current directors.
| Name | Age | |||
| Class I Directors whose terms expire at the 2015 annual meeting: | ||||
| Chris Brown | 57 | |||
| George Gunn, BVM&S, DVSM, MRCVS, Ph.D. | 65 | |||
| Cormac Kilty, Ph.D. | 61 | |||
| John Payne | 67 | |||
| Class II Directors whose terms expire at the 2016 annual meeting: | ||||
| Ashraf Hanna, Ph.D., M.D. | 48 | |||
| Mark Heffernan, Ph.D. | 39 | |||
| Joseph McCracken, DVM, MS | 62 | |||
| Rajiv Patel | 44 | |||
Background information on Dr. Gunn, Mr. Brown, Dr. Kilty and Mr. Payne, the Class I director nominees, appears below under “Corporate Governance — Our Board of Directors.”
Vote Required and Board of Directors’ Recommendation
Our Articles provide that directors will be elected by the affirmative vote of a majority of the votes cast at the annual meeting. This means that the votes cast “for” a Class I director nominee must exceed the number of votes cast “against” that nominee. Because abstentions and broker non-votes will not be considered votes cast at the annual meeting, abstentions and broker non-votes will not have any effect on the outcome of voting on this proposal, although broker non-votes will be counted as present for purposes of determining a quorum.
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We are asking shareholders to approve the following resolutions as ordinary resolutions of the Company at the annual meeting:
RESOLVEDthat the shareholders elect, by separate resolutions, the following individuals as Class I directors of the Company to hold office until the 2017 Annual General Meeting of Shareholders and until his successor is duly elected and qualified or until his earlier resignation or removal:
| • | Chris Brown |
| • | George Gunn |
| • | Cormac Kilty |
| • | John Payne |
Our board of directors unanimously recommends a vote “FOR” the reelection of the Class I director nominees named above. Unless authority to do so is withheld, the persons named as proxies will vote FOR the election of each of the Class I director nominees to hold office until the 2017 annual general meeting of shareholders and until his successor is duly elected and qualified or until his earlier resignation or removal.
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The following is a brief description of each nominee who is currently a member of our board of directors and each director of Nexvet whose term of office will continue after the annual meeting:
Class I Directors for Election at the 2015 Annual Meeting of Shareholders
Chris Brownhas served as a member of our board of directors since November 2013 and served as our Chairman of the Board from November 2013 to April 2015. He is a Director of Preshafood Pty Ltd, a juice company, and served as its Chairman from December 2010 until July 2014. Since June 2015 Mr. Brown has served as the Chairman and Director of CV Check Ltd, an Australian–listed screening and verification company. Mr. Brown has served as the principal of Gibbs Hill Pty Ltd., a corporate finance and strategic business advisory firm, since October 2006. Mr. Brown served as Director (Investment Banking) of Investec Wentworth, a financial services business from July 2002 to March 2006, a Director and Melbourne Head of Corporate Finance of Rothschild Australia, a financial services firm, from January 1994 to October 2000, and a Director and Co-head of Mergers & Acquisitions (Australia) at Merrill Lynch, a financial services firm, from July 1992 to January 1994. Mr. Brown was a Director and Chairman of Senetas Corporation, an Australian-listed public information technology encryption company, from May 2011 to April 2013 and the Founding Chairman of The Conversation Media Group Ltd, a not-for-profit academic news organization, from April 2010 to September 2012. Mr. Brown has a Bachelor of Laws from University of Adelaide, South Australia. We believe Mr. Brown is qualified to serve as a member of our board of directors based on his extensive experience as a corporate advisor, guiding multiple companies through their transition into being a public company, strategic transactions and growth in their industries.
George Gunn, BVM&S, DVSM, MRCVS, Ph.D., has served as a member of our board of directors and as our Chairman of the Board since April 2015. Dr. Gunn is a Director of Phibro Animal Health Corporation, an animal health company, a position he has held since May 2015. Since August 2015, he has also been a Director of Diversigen, Inc., a U.S.-based metagenomic service provider, and a Director of Pharmaq Holding AS, a Swedish-based company involved in aquaculture. Dr. Gunn served as Division Head of Novartis Animal Health and a member of the Novartis Executive Committee through January 2015. Dr. Gunn joined Novartis in 2003 as Head of Novartis Animal Health, North America and became global head of the Animal Health Business Unit in 2004. In addition to this role, he was Division Head, Novartis Consumer Health, from September 2008 to March 2011 and served as Head of Corporate Social Responsibility from March 2011 to March 2014. Before joining Novartis, Dr. Gunn was president of U.S.-based Pharmacia Animal Health. His previous positions included various healthcare executive roles over the course of 18 years as well as nine years as a veterinary surgeon. Dr. Gunn has a bachelor of veterinary medicine and surgery and a diploma in veterinary state medicine from the Royal (Dick) School of Veterinary Studies in the United Kingdom. In 2008, he received an honorary doctorate in veterinary medicine and surgery from the University of Edinburgh. We believe Dr. Gunn is qualified to serve as a member of our board of directors based on his extensive animal health background as well as his executive experience and industry leadership.
Cormac Kilty, Ph.D.,has served as a member of our board of directors since November 2013. Dr. Kilty was employed as Chief Executive Officer of Argutus Medical Ltd. from March 2008 to December 2010 and as a scientific advisor to EKF Diagnostics Ltd., which acquired Argutus Medical. Dr. Kilty was the founder of Biotrin Holdings Ltd., a virology diagnostics company, which was sold in 2008 to DiaSorin S.p.A. Dr. Kilty is also a founder and past Chairman of the Irish BioIndustry Association from 2003 to 2007. From 2005 to 2009, Dr. Kilty served as co-founder and Chairman of Opsona. From February 1986 to June 1990, Dr. Kilty served as the Group Leader and subsequently Director of Research and Development and Technology Planning Assessment in Switzerland for Baxter Healthcare’s Diagnostics Division. Since 2011, Dr. Kilty has served as an Adjunct Associate Professor of Medicine and Medicinal Chemistry at University College Dublin, Ireland. Dr. Kilty has a B.Sc. in Zoology and a Ph.D. in Zoology and Biochemistry from University College Dublin. He carried out post-doctoral research in protein chemistry and immunology at the University of Texas at Austin and at University College Dublin. We believe Dr. Kilty is qualified to serve as a member of our board of directors based on his scientific background as well as his extensive executive experience and leadership in the biopharmaceutical industry.
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John Paynehas served as a member of our board of directors since December 2013. Since September 2014, Mr. Payne has served as the President and Chief Executive Officer of Veterinary Specialists of North America, LLC a group of specialty veterinary practices located in New Jersey, Pennsylvania and New York. Since January 2012, Mr. Payne has also served as founder and Chief Executive Officer of Pet Health Innovations, LLC, an animal health consulting company. From 2005 to January 2012, Mr. Payne was employed with MMI, Inc., which operates the Banfield, Pet Hospital, where he served as a Senior Vice President from 2005 to 2006, as Executive Vice President from 2006 to 2007 and as President and Chief Executive Officer from 2007 to January 2012. While serving as President and Chief Executive Officer of MMI, Mr. Payne also served as a member of the Mars Global Petcare team from 2009 to January 2012. From 2000 to 2005, Mr. Payne served as President and General Manager for North America of Bayer Health Care, Animal Health Division, and as a member of the Human and Animal Health Division’s Global Health Care Team. Mr. Payne is the current chairman of the American Humane Association, dedicated to the protection of animals and children from cruelty, abuse and neglect. Mr. Payne has a B.A. in Secondary Education from St. Bernard College and an M.B.A. from Rockhurst University. We believe Mr. Payne is qualified to serve as a member of our board of directors based on his 40 years of experience in the veterinary care industry, guiding some of the world’s largest consumer companion animal care and veterinary service brands.
Class II Directors Continuing in Office until the 2016 Annual Meeting of Shareholders
Ashraf Hanna, Ph.D., M.D.,has served as a member of our board of directors since September 2014. Dr. Hanna has served as the Vice President of Commercial and Medical Affairs Finance at Genentech Inc., a biotechnology company, since March 2009 and served as its Vice President of Alliance Management and Portfolio Planning from January 2006 to March 2009. He also served as the Chief Financial Officer for the Genentech Foundation from January 2006 to March 2009. Prior to Genentech, Dr. Hanna served as Vice President of Strategic Planning at Tanox, Inc. from August 2001 to December 2005, and prior to that he served as senior associate and Engagement Manager at McKinsey and Company, a management consulting firm. Dr. Hanna has a B.A. in Physics from the University of Chicago, attended the Harvard Business School, has a Ph.D. in Physics from Harvard University and has an M.D. from the University of Massachusetts. We believe Dr. Hanna is qualified to serve as a member of our board of directors based on his significant finance and management experience in biopharmaceutical companies, including public companies.
Mark Heffernan, Ph.D.,one of our co-founders, has served as our Chief Executive Officer and a member of our board of directors since April 2011. In 2003, Dr. Heffernan co-founded Opsona Therapeutics Ltd., an Irish biotechnology company focused on human monoclonal antibodies (“mAbs”) and other molecules for inflammatory diseases and cancer, where he served as founder and Chief Executive Officer from January 2004 to March 2011 and as a Director from January 2004 to December 2011. Prior to co-founding Opsona Therapeutics, Dr. Heffernan worked in research and development and business development roles for Antisense Therapeutics Limited and Metabolic Pharmaceuticals Pty Ltd., spin-outs from Circadian Technologies Limited in Australia. Dr. Heffernan has a B.Sc. (Hons.) in Biochemistry and Pharmacology and a Ph.D. in Biochemistry from Monash University in Australia. We believe Dr. Heffernan is qualified to serve as a member of our board of directors based on his executive experience in the biopharmaceutical industry, his extensive knowledge of our company, his experience developing and commercializing mAbs for inflammatory diseases and his experience in raising capital for biotechnology companies.
Joseph McCracken, DVM,has served as a member of our board of directors since September 2014. Since September 2013, Dr. McCracken has worked as a consultant to and served on the boards of directors of several biopharmaceutical companies focusing on the design and implementation of corporate strategy and business development initiatives. From February 2011 to September 2013, Dr. McCracken served as the Vice President and Global Head of Business Development and Licensing for Hoffmann-La Roche Inc., a research-focused healthcare company, where he was responsible for global licensing activities, and from October 2009 to February 2011 he served as General Manager, Roche Pharma Japan and Asia Regional Head, Roche Partnering, for F. Hoffman- LaRoche Ltd., a subsidiary of F. Hoffmann-La Roche AG and was based in Tokyo. From August 2000 to October 2009, Dr. McCracken served as Vice President, Business Development at Genentech. From November 1997 to August 2000, Dr. McCracken served as Vice President of Worldwide Business and Technology Development at Rhone-Poulenc Rorer S.A., a French chemical and pharmaceutical company, and Vice President of Technology Licensing and Alliances at Aventis Pharma, a pharmaceutical company. Dr. McCracken has a B.S. in Microbiology, an M.S. in Pharmacology and a Doctorate of Veterinary Medicine from The Ohio State University. We believe
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Dr. McCracken is qualified to serve as a member of our board of directors based on his extensive biopharmaceutical company operational experience and veterinary qualifications, including with international and public companies.
Rajiv Patelhas served as a member of our board of directors since February 2015. Mr. Patel is currently a Managing Member, portfolio manager and member of the global investment committee at Farallon Capital Management, L.L.C., an investment management firm that he joined in 1997. From 1993 to 1995, Mr. Patel worked at Donaldson, Lufkin & Jenrette as an investment banker in the project finance department, specializing in infrastructure, shipping and satellites. Mr. Patel has an M.B.A. from Stanford University’s Graduate School of Business and a B.S. in Operations Research and Industrial Engineering from Cornell University. We believe Mr. Patel, who is associated with a significant shareholder with which we have an important relationship, is qualified to serve as a member of our board of directors based on his extensive professional experience in investment management and the financial markets.
The NASDAQ Stock Market (“Nasdaq”) rules require that independent directors comprise a majority of a listed company’s board of directors within a specified period of the completion of an initial public offering. Our board of directors has reviewed its composition, the composition of its committees and the independence of each director. Our board of directors has determined that all of our directors satisfy the requirements of independence under the Nasdaq listing standards and the heightened independence standard for audit and compensation committee members set out under applicable rules of the SEC, except for Dr. Heffernan, our Chief Executive Officer. In making this determination, our board of directors considered the general definitions and criteria for determining the independence of members of the Board and other eligibility requirements of Nasdaq in determining their independence.
Our Articles, as well as our Corporate Governance Guidelines, provide our board of directors with flexibility to combine or separate the positions of Chairman of the Board and Chief Executive Officer in accordance with its determination that utilizing one or the other structure is in the best interests of our company. We have currently separated these positions with Dr. Gunn serving as Chairman of the Board and Dr. Heffernan serving as Chief Executive Officer. Our board of directors believes that the separation of these positions strengthens the independence of our board of directors. The Chairman of the Board facilitates communications between members of our board of directors and works with management in the preparation of the agenda for each meeting of our board of directors. All of our directors are encouraged to make suggestions for agenda items.
Our board of directors has concluded that our current leadership structure is appropriate at this time. However, our board of directors periodically reviews our leadership structure and may make such changes in the future as it deems appropriate.
Role of Board in Risk Oversight Process
Our board of directors’ role in risk oversight includes receiving reports from members of management regarding material risks faced by us and applicable mitigation strategies and activities, at least on a quarterly basis. The reports cover the critical areas of operations, sales and marketing, technology, and legal and financial affairs. Our board of directors and its committees consider these reports, discuss matters with management and identify and evaluate strategic or operational risks, and determine appropriate initiatives to address those risks.
The independent directors meet in executive session regularly and, in any event, at least semi-annually. The independent directors may choose one director annually to preside at all executive sessions, establish a procedure by which a presiding director will be selected, or otherwise select a presiding director for any particular executive session.
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Meetings of the Board of Directors and Committees
Our board of directors held 25 meetings during fiscal year 2015, including seven meetings of the board of directors of our predecessor company, Nexvet Australia Pty Ltd (formerly known as Nexvet Biopharma Pty Ltd (“Nexvet Australia”)). Our board of directors has three standing committees: an audit committee (the “Audit Committee”), a compensation committee (the “Compensation Committee”) and a nominating and corporate governance committee (the “Nominating Committee”). During the last fiscal year, each of our directors attended at least 75% of the aggregate number of meetings of our board of directors and all of the committees of our board of directors on which such director served during that period.
The following table sets forth the standing committees of our board of directors and the members of each committee:
| Name of Director | Audit | Compensation | Nominating | |||
| Chris Brown | X | |||||
| George Gunn, BVM&S, DVSM, MRCVS, Ph.D. | Chair | |||||
| Ashraf Hanna, Ph.D., M.D. | Chair | |||||
| Cormac Kilty, Ph.D. | X | X | ||||
| Joseph McCracken, DVM, MS | Chair | X | ||||
| John Payne | X | |||||
| Raj Patel | X |
Audit Committee
The members of the Audit Committee are Mr. Brown, Dr. Hanna and Dr. Kilty. Dr. Hanna serves as chairman of the Audit Committee. Each member of our Audit Committee satisfies the financial literacy, independence and other membership requirements under the applicable rules of the SEC and Nasdaq as they apply to audit committee members, including Rule 10A-3(b)(1) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Our board of directors has determined that Dr. Hanna is an “audit committee financial expert” as defined under the applicable rules of the SEC and has the requisite financial sophistication under Nasdaq rules. In arriving at these determinations, our board of directors examined each Audit Committee member’s scope of experience and the nature of his employment in corporate finance, accounting and related areas. The Audit Committee appoints our independent registered public accounting firm to perform audit services and any permissible non-audit services; evaluates the objectivity and independence of our independent registered public accounting firm and the individuals assigned to the engagement team as required by law; reviews our annual and quarterly consolidated financial statements and reports and discusses our consolidated financial statements and reports with our independent registered public accounting firm and management; reviews with our registered public accounting firm and management any significant issues that arise regarding accounting principles and financial statement presentation and matters concerning the scope, adequacy and effectiveness of our internal controls and disclosure controls and procedures; establishes procedures for the receipt, retention and treatment of complaints received by us regarding internal controls, accounting or auditing matters; establishes procedures for the confidential, anonymous submissions by employees regarding accounting, internal controls or accounting matters; and reviews and, if appropriate, approves proposed related party transactions. The Audit Committee held five meetings during fiscal year 2015 (including one meeting of the Audit Committee of the board of directors of our predecessor company, Nexvet Australia). Additional information regarding the Audit Committee is set forth in the Report of the Audit Committee immediately following Proposal No. 2.
Compensation Committee
The members of the Compensation Committee are Dr. McCracken, Mr. Payne and Mr. Patel. Our board of directors has determined that each member of the Compensation Committee satisfies the independence and other membership requirements under the applicable rules of the SEC and Nasdaq listing standards as they apply to compensation committee members. Our board of directors has also determined that all of the members of our Compensation Committee are independent directors under the applicable rules and regulations of the SEC and
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Nasdaq, a “non-employee director” as defined in Rule 16b-3 promulgated under the Exchange Act, and an “outside director” as that term is defined in Section 162(m) of the Internal Revenue Code of 1986, as amended. The Compensation Committee reviews and makes recommendations to our board of directors with respect to the compensation of our Chief Executive Officer and reviews and approves the compensation of our other executive officers, reviews and approves corporate and personal performance goals and objectives relevant to executive compensation, reviews and makes recommendations to our board of directors with respect to the adoption of equity-based compensation, incentive compensation and other employee benefit plans, administers the issuance of options and other equity incentive arrangements under our equity incentive plans, establishes executive compensation policies and reviews and approves any employment agreements or arrangements with our executive officers. The Compensation Committee held 10 meetings during fiscal year 2015.
Nominating and Corporate Governance Committee
The members of the Nominating Committee are Dr. Gunn, Dr. Kilty and Dr. McCracken. Our board of directors has determined that each member of the Nominating Committee satisfies the independence and other membership requirements under the applicable rules of the SEC and Nasdaq as they apply to nominating committee members. The Nominating Committee determines criteria for identifying, evaluating and recommending candidates for our board of directors and its committees; identifies, evaluates, and recommends individuals for membership on our board of directors and its applicable committees; considers shareholder nominations of candidates for election to our board of directors; reviews and evaluates director performance on our board of directors and applicable committees of our board of directors and determines whether continued service on our board of directors or on such committees of our board of directors is appropriate; develops, reviews and recommends a set of corporate governance policies and principles; and reviews our governing documents, including our Constitution, and recommends changes to our board of directors. The Nominating Committee held three meetings during fiscal year 2015.
Compensation Committee Interlocks and Insider Participation
No member of our Compensation Committee is, or has at any time during the past year been, one of our officers or employees. None of our executive officers currently serves, or in the past year has served, as a member of our board of directors or Compensation Committee of any entity that has one or more executive officers serving on our board of directors or Compensation Committee.
Our Nominating Committee considers nominees recommended by directors, officers, employees, shareholders, and others based upon each candidate’s qualifications, including whether a candidate possesses any of the specific qualities and skills desirable in members of our board of directors. Nominees for our board of directors must be committed to enhancing long-term shareholder value and possess a high level of personal and professional ethics, sound business judgment, appropriate experience and achievements, personal character and integrity. Members of our board of directors are expected to understand our business and the industry in which we operate, regularly attend meetings of our board of directors and its committees, participate in meetings and decision making processes in an objective and constructive manner and be available to advise our officers and management. Evaluations of candidates generally involve a review of background materials, internal discussions and interviews with selected candidates, as appropriate.
We do not have a formal policy regarding the consideration of diversity in identifying nominees for directors. Once our Nominating Committee has determined that an individual is appropriately qualified to serve on our board of directors, our Nominating Committee then considers the extent to which the membership of the candidate on our board of directors would promote a diversity of perspectives, backgrounds and experiences among the directors, including expertise and experience in a diversity of substantive matters pertaining to our business. However, our board of directors does not believe the subjective and varying nature of this nomination process lends itself to a formal policy or fixed rules with respect to the diversity of our board of directors.
Our Nominating Committee will consider director candidates recommended by shareholders and will evaluate director candidates in light of several factors, including the general criteria set forth above. Shareholders who wish to recommend individuals for consideration by our Nominating Committee to become nominees for election to our board of directors at an annual meeting of shareholders must do so in accordance with the procedures
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set forth in the “Shareholder Proposals or Nominations to be Presented at Next Annual Meeting” section of this proxy statement and in compliance with our Articles. Each submission must set forth: the name and address of the shareholder on whose behalf the submission is made; the class and number of our shares that are owned beneficially by such shareholder as of the date of the submission; a representation by such shareholder that it is a registered holder of shares entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such nomination; a statement as to whether such shareholder intends or is part of a group that intends (i) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of our outstanding share capital required to approve or elect the nominee and/or (ii) otherwise to solicit proxies from shareholders in support of such nomination; the full name of the proposed candidate; a description of the proposed candidate’s business experience for at least the previous five years; complete biographical information for the proposed candidate; a description of the proposed candidate’s qualifications as a director; and any other information described in our Articles. Pursuant to our Articles, notwithstanding a proper submission, if the submitting shareholder, or a qualified representative of such submitting shareholder does not appear at the annual meeting to present such nomination, such nomination will be disregarded.
Individuals may communicate with our board of directors by contacting:
Corporate Secretary
NIBRT (National Institute for Bioprocessing Research & Training),
Foster's Avenue, Mount Merrion, Blackrock, Co. Dublin, Ireland
Telephone: +353 (1) 901 0339
Our Corporate Secretary will forward all appropriate correspondence to our board of directors, except for items that are unrelated to our directors’ duties, such as spam, junk mail, mass mailings, solicitations, resumes and job inquiries, and patently offensive or otherwise inappropriate material.
Director Attendance at Annual Meetings
We attempt to schedule our annual meetings of shareholders at a time and date to accommodate attendance by directors, taking into account the directors’ schedules. All directors are encouraged to attend our annual meetings of shareholders.
Committee Charters and Other Corporate Governance Materials
Our board of directors has adopted a written charter for each of the Audit Committee, the Compensation Committee and the Nominating Committee. Each charter is available on our website at www.nexvet.com.
We have adopted a Code of Business Conduct and Ethics (the “Code”), that applies to all of our employees, officers and directors. The Code is available on our website at www.nexvet.com. Any substantive amendment to or waiver of any provision of the Code may be made only by our board of directors, and will be disclosed on our website as well as via any other means then required by Nasdaq listing standards or applicable law.
We have adopted Corporate Governance Guidelines that address the composition of our board of directors, criteria for board membership and other board governance matters. These guidelines are available on our website at www.nexvet.com.
The information contained on our website, including our committee charters, the Code, and our Corporate Governance Guidelines, is not incorporated by reference into this proxy statement, and inclusion in this proxy statement of our website address and references to information accessible on our website are inactive textual references only.
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The following table sets forth information regarding our executive officers:
| Name | Position | Age | ||
| Mark Heffernan, Ph.D. | Chief Executive Officer and Director | 39 | ||
| Jürgen Horn,Dr. med.ret., Ph.D. | Chief Product Development Officer | 45 | ||
| David Gearing, Ph.D. | Chief Scientific Officer | 54 | ||
| Damian Lismore | Chief Financial Officer | 56 | ||
| Geraldine Farrell | Vice President Operations and General Counsel | 46 |
Mark Heffernan, Ph.D.Biographical information is set forth above in the section titled “Corporate Governance – Our Board of Directors – Class II Directors for Election at the 2016 Annual Meeting of Shareholders.”
Jürgen Horn, Dr. med.ret., Ph.D., has served as our Chief Product Development Officer since August 2015. From January 2015 to August 2015, Dr. Horn served as Senior Director of Global Innovation Strategy at Elanco, a large animal health company. Prior to joining Elanco, Dr. Horn served as Head of Global Pharmaceuticals Development at Novartis Animal Health, a large animal health company, from August 2008 to December 2014. Dr. Horn previously served in a series of marketing, research and development and project management roles at Novartis Animal Health as well as the Novartis Institute for Biomedical Research, following his training as a veterinary surgeon and time in small animal and equine practices. Dr. Horn has a doctorate in veterinary medicine from the Ludwig-Maximilians-University of Munich in Germany, a Ph.D. from the Royal Veterinary College at the University of London, and an MBA from the London Business School and Columbia Business School. His primary veterinary training was conducted at the Ludwig-Maximilians-University of Munich and the University of Sydney in Australia.
David Gearing, Ph.D.,one of our co-founders, has served as our Chief Scientific Officer since September 2010. From January 2000 to September 2007, Dr. Gearing served as the Chief Research Officer and Director of Research at CSL Ltd, a specialty biopharmaceutical company based in Melbourne, Australia. From January 1996 to January 2000, he served as Vice President and founder at Millennium Biotherapeutics, Inc., a biopharmaceutical company. From August 1994 to December 1995, Dr. Gearing served as Director of Molecular Biology at SyStemix, a stem cell and gene therapy company. From January 1990 to August 1994, he served as a staff scientist at Immunex Corporation, a biopharmaceutical company. Dr. Gearing has also served as an entrepreneur-in-residence at the Queensland Brain Institute, University of Queensland and as a Professor at the Monash Institute of Medical Research. Dr. Gearing has a B.Sc. (Hons.) in Biochemistry from Leeds University and a Ph.D. in Biochemistry and Molecular Biology from Monash University and also trained at the Cancer Research Unit of the Walter and Eliza Hall Institute in Melbourne, Australia.
Damian Lismorehas served as our Chief Financial Officer since November 2013. From August 2005 to August 2013, Mr. Lismore served as Chief Financial Officer and Company Secretary of Biota Holdings Limited, an Australian-listed biotechnology company. From April 2002 to August 2005, he served as Managing Director of MNT Innovations, the commercial arm of the Cooperative Research Centre for MicroTechnology, a partnership of research, industry and government focused on developing new technologies. Mr. Lismore served as General Manager Australia of Analytica Limited from February 2001 to April 2002. From May 2000 to December 2000, he served as Chief Operating Officer of MebWeb Limited. From April 1996 to May 2000, Mr. Lismore was a member of the Group Executive Committee and served as Group Financial Controller and General Manager of Buying and Finance at Sigma Company Limited, an Australian-listed pharmaceutical wholesaler and manufacturer. From 1986 to 1996, Mr. Lismore served in various roles, the most recent as Senior Manager with Price Waterhouse (now PricewaterhouseCoopers) in Australia, and from 1980 to 1986 he served in various accounting roles at Deloitte Haskins & Sells (now Deloitte LLP) in the United Kingdom. He is a member of the Institute of Chartered Accountants in Australia, a Fellow of the Institute of Chartered Accountants in Ireland, and is a graduate of the Australian Institute of Company Directors. Mr. Lismore has a Bachelor of Accountancy with Honors from University of Ulster.
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Geraldine Farrellhas served as our Vice President Operations and General Counsel since August 2013. Ms. Farrell served as a senior lawyer at Griffith Hack, an intellectual property firm in Australia, from November 2008 to July 2013. Prior to joining Griffith Hack, Ms. Farrell was an attorney at Freehills (now Herbert Smith Freehills) and Minter Ellison, both large Australian law firms. Ms. Farrell has more than 18 years’ experience as an intellectual property and commercial lawyer. Ms. Farrell is a graduate of the Australian Institute of Company Directors, and has served as a director on several private company boards of directors, government organizations and not-for-profit entities. Ms. Farrell has a Bachelor of Science in Pharmacology and Physiology, a Bachelor of Laws, and a Master of Laws (Intellectual Property), all from Monash University.
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Ratification of Appointmentof IndependentRegistered PublicAccountingFirmand StatutoryAuditorand Authorization to Fixits Remuneration
The Audit Committee of our board of directors has appointed PricewaterhouseCoopers to serve as our independent registered public accounting firm to audit our consolidated financial statements and to perform the Irish statutory audit of Nexvet Biopharma plc for the fiscal year ending June 30, 2016. We are asking our shareholders to ratify this appointment and to authorize our board of directors acting through the Audit Committee to fix the remuneration of PricewaterhouseCoopers.
PricewaterhouseCoopers has acted as our independent registered public accounting firm since its appointment in July 2014. A representative of PricewaterhouseCoopers is expected to be present at the annual meeting, with the opportunity to make a statement if the representative desires to do so, and is expected to be available to respond to appropriate questions.
Shareholder ratification of the appointment of PricewaterhouseCoopers as our independent registered public accounting firm and statutory auditor and authorization to fix its remuneration is not required by our Articles or otherwise. However, our board of directors is submitting this proposal to shareholders as a matter of good corporate governance practice. If the shareholders fail to ratify the appointment, the Audit Committee will reconsider whether or not to retain that firm. Even if the appointment is ratified, the Audit Committee at its discretion may direct the appointment of a different independent registered public accounting firm at any time during the year if it determines that such a change would be in the best interests of Nexvet and our shareholders.
Fees for Professional Services
The following table sets forth the aggregate fees billed to us for the fiscal years ended June 30, 2015 and 2014 by PricewaterhouseCoopers:
| Fiscal 2015 ($) | Fiscal 2014 ($) | ||||||||
| Audit fees (1) | 306,000 | 215,000 | |||||||
| Audit-related fees (2) | 597,000 | — | |||||||
| Tax fees (3) | — | — | |||||||
| All other fees (4) | — | — | |||||||
| (1) | Audit fees consist of fees billed for professional services rendered for the audit of our consolidated annual financial statements, the review of the interim consolidated financial statements included in quarterly reports and other services that are normally provided by the independent registered public accounting firm, such as services in connection with subsidiary audits, statutory and regulatory filings or engagements, acquisitions and SEC registration statements. |
| (2) | Audit-related fees consist of fees billed for assurance and related services that are reasonably related to the performance of the audit or review of our consolidated financial statements and are not reported under “Audit fees.” |
| (3) | Tax fees consist of fees billed for professional services rendered for tax compliance, tax advice and tax planning (domestic and international). These services include assistance regarding federal, state and international tax compliance, acquisitions and international tax planning. |
| (4) | All other fees consist of fees for products and services other than the services reported above. |
Our independent registered public accounting firm has not provided any services resulting in audit-related fees, tax fees, or all other fees, as described above (whether or not pursuant to a waiver by the Audit Committee of the pre-approval provisions set forth in applicable rules of the SEC). The Audit Committee’s policy is to pre-approve all audit and permissible non-audit services provided by our independent registered public accounting firm. These services may include audit services, audit-related services, tax services and other services. Pre-approval is generally provided for up to one year and any pre-approval is detailed as to the particular service or category of services. The independent registered public accounting firm and management are required to periodically report to the Audit Committee regarding the extent of services provided by the independent registered public accounting firm in accordance with this pre-approval.
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Vote Required and Board of Directors’ Recommendation
Approval of this proposal requires the affirmative vote of a majority of the votes cast on the proposal at the annual meeting. Because abstentions and broker non-votes will not be considered votes cast at the annual meeting, abstentions and broker non-votes will not have any effect on the outcome of voting on this proposal, although broker non-votes will be counted as present for purposes of determining a quorum
Accordingly, we are asking shareholders to approve the following resolution as an ordinary resolution of the Company at the annual meeting:
RESOLVEDthat the shareholders ratify the appointment of PricewaterhouseCoopers as the Company’s independent registered public accounting firm for the fiscal year ending June 30, 2016 and statutory auditor until the close of the next annual general meeting of shareholders, and to authorize the board of directors acting through the Audit Committee to fix its remuneration.
Our board of directors unanimously recommends a vote “FOR” the ratification of PricewaterhouseCoopers as our independent registered public accounting firm and statutory auditor for the fiscal year ending June 30, 2016 and the authorization of our board of directors acting through the Audit Committee to fix its remuneration.
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The Audit Committee (the “Audit Committee”) of the board of directors (the “Board”) of Nexvet Biopharma public limited company (“Nexvet”) currently consists of three directors, each of whom the Board has determined to satisfy the financial literacy and independence requirements under applicable rules of the U.S. Securities and Exchange Commission and the Nasdaq Global Market as they apply to audit committee members. The Audit Committee acts pursuant to a written charter that has been adopted by the Board. A copy of the charter is available on Nexvet’s website at www.nexvet.com. The information contained on Nexvet’s website, including the charter, is not incorporated by reference into this report or into Nexvet’s proxy statement in which this report appears, and inclusion of Nexvet’s website address and references to information accessible on Nexvet’s website are inactive textual references only.
The Audit Committee oversees Nexvet’s financial reporting process on behalf of the Board. The Audit Committee is responsible for retaining Nexvet’s independent registered public accounting firm, evaluating its independence, qualifications and performance and approving in advance the engagement of the independent registered public accounting firm for all audit and non-audit services. Management has the primary responsibility for the financial statements and the financial reporting process, including internal control systems, and procedures designed to ensure compliance with applicable laws and regulations. Nexvet’s independent registered public accounting firm, PricewaterhouseCoopers, is responsible for expressing an opinion as to the conformity of Nexvet’s audited financial statements with generally accepted accounting principles.
The Audit Committee has reviewed and discussed Nexvet’s audited financial statements with management. The Audit Committee has discussed with Nexvet’s independent registered public accounting firm the matters required to be discussed by the Auditing Standard No. 16,Communications with Audit Committees, as adopted by the Public Company Accounting Oversight Board. In addition, the Audit Committee has met with the independent registered public accounting firm, with and without management present, to discuss the overall scope of the independent registered public accounting firm’s audit, the results of its examinations, internal controls matters and the overall quality of Nexvet’s financial reporting.
The Audit Committee has received the written disclosures and the letter from Nexvet’s independent registered public accounting firm required by applicable requirements of the Public Company Accounting Oversight Board regarding the independent registered public accounting firm’s communications with the Audit Committee concerning independence and has discussed with the independent registered public accounting firm its independence.
Based on the review and discussions referred to above, the Audit Committee recommended to Nexvet’s board of directors that Nexvet’s audited financial statements be included in Nexvet’s Annual Report on Form 10-K for the fiscal year ended June 30, 2015.
| AUDIT COMMITTEE | |
| Chris Brown | |
| Ashraf Hanna, Ph.D., M.D. | |
| Cormac Kilty, Ph.D. |
Pursuant to the Instruction to Item 407(d), the foregoing Report of the Audit Committee shall not be deemed to be “soliciting material” or to be “filed” with the Securities and Exchange Commission, nor shall such information be incorporated by reference into any future filing under the Securities Act of 1933 or the Securities Exchange Act of 1934, except to the extent that Nexvet specifically incorporates such information by reference in such filing.
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Amendments to Memorandumof Associationand Adoptionof RevisedArticlesof Association
Holders of our ordinary shares are being asked to consider and approve certain amendments to our Constitution (as amended, the “Amended Constitution”) which take into account the comprehensive consolidation, with amendments, of company law in Ireland effected by the new Irish Companies Act 2014, which came into force on June 1, 2015 (the “2014 Act”). The Amended Constitution is being proposed as a special resolution pursuant to Article 67 of our Articles. Our board of directors has unanimously approved the Amended Constitution and recommends adoption by our shareholders.
Following the introduction of the 2014 Act, we are proposing the Amended Constitution to align our Constitution with the new act and to minimize the impact on our company’s historical practices. We have set out below a summary of the changes to our Constitution we are proposing, which include:
| · | Allowing directors to use our company property, subject to conditions approved by the board of directors and the provisions of the Amended Constitution, the 2014 Act and other applicable law; |
| · | Clarifying that prior board approval is required in circumstances where a director may have obligations to a party other than the Company that impact his or her ability to exercise independent judgment; |
| · | Providing for new requirements and opting out of optional provisions regarding the Irish statutory accounting records and financial statements; |
| · | Maintaining the disapplication of optional sections under the new 2014 Act; and |
| · | Updates to cross-references and statutory references throughout our Constitution. |
Article 117 of the Amended Constitution would permit directors to continue to use company property in accordance with our policies and applicable agreements. Under Section 228(1)(d) of the 2014 Act, the use of company property by a director for his or her own benefit is prohibited unless expressly permitted in the company’s constitution or approved by resolution of the company’s shareholders. We have historically permitted our chief executive officer, who also serves as a member of our board of directors, and other executive officers to make reasonable personal use of company-provided laptops, mobile phones and other technology resources, such as for personal email, telephone calls and text messaging, provided that such incidental use does not interfere with the executive’s duties, is reasonable in scope and duration, does not conflict with our business and does not violate any of our policies, including our Technology Use Policy. We believe such incidental personal use is reasonable, especially when the roles of our executive officers require frequent domestic and international travel.
Article 125 of the Amended Constitution makes it clear that Sections 228(1)(e) and 228(2), which were added by the 2014 Act, will not restrict anything which may be done by any director in accordance with the prior authorization of the board of directors or a committee thereof. In addition, Article 125 would prohibit any individual director from entering into a commitment that might otherwise be permitted by Section 228(2) of the 2014 Act without the prior approval of the board of directors or a committee thereof.
Articles 83 and Articles 171 to 176 of the Amended Constitution would provide for the new requirements regarding the maintenance of Irish statutory accounting records set out in Chapter 2 of Part 6 of the 2014 Act. Article 176 of the Amended Constitution would allow the board of directors to send shareholders summary financial statements in lieu of the full Irish statutory financial statements. However, when the board of directors elects to do so, any shareholder may request a full copy of the full Irish statutory financial statements.
Article 1.1 of the Amended Constitution would disapply optional sections of the 2014 Act. The 2014 Act adopts a new approach in regard to the articles of association of all companies. Instead of making provisions for an optional model set of articles of association, the 2014 Act now contains specific sections which apply to all
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companies unless specifically excluded by the articles of association. Our existing Articles already disapply these provisions, but Article 1.1 of the Amended Constitution is necessary to maintain this approach.
The Constitution would also be revised throughout to make minor amendments that update statutory references consistent with the 2014 Act.
The full text of the proposed Amended Constitution, with the proposed changes reflected therein, is attached to this proxy statement as Appendix A. We urge you to read the text of the Amended Constitution in its entirety. The foregoing description of the proposed changes is qualified in its entirety by reference to Appendix A.
Vote Required and Board of Directors’ Recommendation
Approval of this proposal requires the affirmative vote of at least 75% of the votes cast on the proposal at the annual meeting. Because abstentions and broker non-votes will not be considered votes cast at the annual meeting, abstentions and broker non-votes will not have any effect on the outcome of voting on this proposal, although broker non-votes will be counted as present for purposes of determining a quorum.
Accordingly, we are asking shareholders to approve the following resolutions as special resolutions of the Company at the annual meeting:
RESOLVEDthat the wording in the Memorandum of Association of the Company be updated as follows:
(a) By the deletion in paragraph 2 of the words “The Company is to be a public limited company” and the substitution therefor of the words “The Company is to be a public limited company registered under Part 17 of the Companies Act 2014”;
(b) In paragraph 3(p), by the deletion of the words “as defined by Section 155 of the Companies Act 1963 or another subsidiary as defined by the said Section” and the substitution therefor of the words “as defined by sections 7 and 8 of the Companies Act 2014 or another subsidiary as defined by the said section”; and
(c) By the re-numbering of each of the existing sub-paragraphs 3(a) to 3(jj) as sub-paragraphs 3.1 to 3.36.
RESOLVEDthat the Articles of Association produced to the meeting (a copy of which is attached to this proxy statement as Appendix A) be adopted as the new Articles of Association of the Company in substitution for and to the exclusion of the existing Articles of Association of the Company.
Our board of directors unanimously recommends a vote “FOR” the amendments to our Memorandum and the adoption of revised Articles.
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As an “emerging growth company” as defined in the JOBS Act, we are not required to include a Compensation Discussion and Analysis section and have elected to comply with the scaled disclosure requirements applicable to emerging growth companies. The following is a discussion of compensation arrangements of our named executive officers (“NEOs”), which consist of our principal executive officer and the next two most highly compensated executive officers, for fiscal year 2015. Our NEOs for fiscal year 2015 were as follows:
·Mark Heffernan, Ph.D., Chief Executive Officer;
·David Gearing, Ph.D., Chief Scientific Officer; and
·Damian Lismore, Chief Financial Officer
Summary Compensation Table – 2015 and 2014
The following table sets forth the compensation awarded to, earned by or paid for services in all capacities by our NEOs during fiscal years 2015 and 2014. The compensation described in this table and throughout this section does not include medical, group life insurance or other benefits that are available to all of our salaried employees.
| Name and Principal Position | Year | Salary(1) | Bonus(1)(2) | Option Awards(1)(3) | Stock Awards(1)(3) | All Other Compensation(4) (1) | Total(1) | |||||||||||||||||||
| Mark Heffernan, Ph.D. | 2015 | $ | 353,549 | $ | 109,379 | $ | 289,504 | $ | 51,584 | $ | $ | 806,016 | ||||||||||||||
| Chief Executive Officer | 2014 | 244,852 | 90,810 | 143,192 | — | 53,543 | (4) | 532,397 | ||||||||||||||||||
| David Gearing, Ph.D. | 2015 | 282,858 | 74,392 | 271,788 | 39,844 | 668,882 | ||||||||||||||||||||
| Chief Scientific Officer | 2014 | 240,673 | 89,036 | 143,192 | — | — | 472,901 | |||||||||||||||||||
| Damian Lismore | 2015 | 280,693 | 77,191 | 261,605 | 42,690 | 662,179 | ||||||||||||||||||||
| Chief Financial Officer | 2014 | 149,650 | (5) | 39,469 | 110,148 | — | — | 299,267 | ||||||||||||||||||
| (1) | Dollar amounts reflect the U.S. dollar equivalent of the amounts paid to our NEOs. The amounts were converted to U.S. dollars from Australian dollars using the applicable exchange rates for A$ into US$. Of this amount, Australian residents received superannuation (a government-required retirement program) contributions at the statutory rate of 9.25% and 9.5% of base salary in fiscal years 2014 and 2015, respectively. |
| (2) | Represents amounts earned in the relevant fiscal year as bonuses awarded by our board of directors based on the achievement of company goals related to financing and corporate activities and advancement of our development programs. |
| (3) | Represents the grant date fair value of all awards (other than the award to Dr. Heffernan for his service as a director) made during the relevant fiscal year calculated using the assumptions described in the notes to our consolidated financial statements included in our annual report on Form 10-K. The Option Awards compensation for each NEO includes $148,927 in respect of a non-statutory share option to purchase 100,000 ordinary shares at $15.00 per share, which vested 25% through May 2015 and thereafter in equal quarterly installments on the last day of the next 15 calendar quarters. |
| (4) | Represents $21,417 in cash and $32,126 in the grant date fair value of options received by Dr. Heffernan in fiscal year 2014 for his service as a director. The option grant date fair value was determined using the assumptions described in the notes to our consolidated financial statements included in our annual report on Form 10-K. |
| (5) | Mr. Lismore joined us in November 2013 and the amount for fiscal year 2014 reflects a partial year of service. |
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Outstanding Equity Awards as of June 30, 2015
The following table sets forth information regarding outstanding option awards held by our NEOs as of June 30, 2015.
| Option Awards | ||||||||||||||||
| Name | Grant Date | Exercisable (#) | Unexercisable (#) | Option Exercise Price ($) | Option Expiration Date | |||||||||||
| Mark Heffernan Ph.D. | 11/05/2013 | 6,135 | 12,271 | (1) | 0.125 | 11/04/2020 | ||||||||||
| 09/18/2014 | — | 21,750 | 0.125 | 07/01/2019 | ||||||||||||
| 08/19/2014 | — | 52,040 | 6.35 | 02/28/2018 | ||||||||||||
| 05/18/2015 | 30,000 | 70,000 | 15.00 | 02/10/2022 | ||||||||||||
| David Gearing Ph.D. | 11/05/2013 | 6,135 | 12,271 | (1) | 0.125 | 11/04/2020 | ||||||||||
| 09/18/2014 | — | 16,800 | 0.125 | 07/01/2019 | ||||||||||||
| 08/19/2014 | — | 46,372 | 6.35 | 02/28/2018 | ||||||||||||
| 05/18/2015 | 30,000 | 70,000 | 15.00 | 02/10/2022 | ||||||||||||
| Damian Lismore | 11/05/2013 | 4,719 | 9,440 | (1) | 0.125 | 11/04/2020 | ||||||||||
| 09/18/2014 | — | 18,000 | 0.125 | 07/01/2019 | ||||||||||||
| 05/18/2015 | 30,000 | 70,000 | 15.00 | 02/10/2022 | ||||||||||||
| (1) | Grant vested or will vest, as applicable, in equal annual installments as to 33% of the underlying ordinary shares on each of November 5, 2014, 2015 and 2016. |
The following summarizes the employment agreements of our NEOs, which we entered into in December 2014. The employment agreements set forth the terms and conditions of employment that have been in effect following the closing of our initial public offering, including base salary, bonuses, eligibility to receive our standard employee benefit plans, equity awards and the acceleration of the vesting of share options held by the NEO upon the occurrence of certain conditions. Dr. Heffernan and Mr. Lismore have each signed our standard proprietary information and inventions agreement, and Dr. Gearing’s employment agreement contains standard confidential information, invention assignment and non-competition provisions. Our board of directors has instructed Dr. Heffernan and Mr. Lismore to remain in Melbourne, Australia for the foreseeable future and has initiated contractual discussions with both parties regarding deferral of their relocation to the San Francisco Bay Area contemplated under their employment agreements.
Mark Heffernan, Ph.D.
Dr. Heffernan has served as our Chief Executive Officer since April 2011 and as a member of our board of directors since August 2014. Following completion of our initial public offering, he has continued to serve in that role in an “at will” capacity, will continue to be nominated by us for election to our board of directors and is expected to be based in the San Francisco Bay Area. Dr. Heffernan’s annual base salary is $450,000. He is also eligible for an annual cash bonus of up to 45% of his annual base salary for the year in which the bonus is granted, based on his achievement of personal objectives and our achievement of corporate objectives determined by our board of directors or Compensation Committee. Contingent on his relocation to the San Francisco Bay Area by a date agreed to by our board of directors, Dr. Heffernan will be entitled to a one-time relocation allowance pursuant to which we will reimburse up to $119,700 of his relocation expenses (which he must repay to us if he voluntarily resigns without “good reason” within 12 months of the completion of our initial public offering), as well as reimbursement of up to $25,000 for vacation travel in each of fiscal years 2016, 2017 and 2018.
Pursuant to his employment agreement, we granted Dr. Heffernan a nonstatutory share option to purchase 100,000 of our ordinary shares at the greater of $15.00 per share or the public offering price, which vested 25% in May 2015 and thereafter in substantially equal quarterly installments on the last day of each of the next 15 calendar
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quarters. Dr. Heffernan is also be eligible to receive annual equity awards of up to $1.0 million in value, which may vest on service, performance or other conditions established by our board of directors. Upon a “change in control,” all equity awards held by Dr. Heffernan will become 100% vested and exercisable in full.
David Gearing, Ph.D.
Dr. Gearing has served as our Chief Scientific Officer since September 2010. Following completion of our initial public offering, he has continued to serve in that role and is expected to continue to be based in Melbourne, Australia. Dr. Gearing’s annual base salary is $325,000 (inclusive of statutory superannuation fund contributions, currently at a rate of 9.5%). He is also eligible for an annual cash bonus of up to 40% of his annual base salary for the year in which the bonus is granted, based on his achievement of personal objectives and our achievement of corporate objectives determined by our board of directors.
Pursuant to his employment agreement, we granted Dr. Gearing a nonstatutory share option to purchase 100,000 of our ordinary shares at the greater of $15.00 per share or the public offering price, which vested 20% upon closing of our initial public offering and thereafter in substantially equal quarterly installments on the last day of each of the next 16 calendar quarters. Dr. Gearing is also eligible to receive annual equity awards of up to $300,000 in value, which may vest on service, performance or other conditions established by our board of directors. Upon a “change in control,” all equity awards held by Dr. Gearing will become 100% vested and exercisable in full.
Damian Lismore
Mr. Lismore has served as our Chief Financial Officer since November 2013. Following completion of our initial public offering, he has continued to serve in that role in an “at will” capacity and is expected to be based in the San Francisco Bay Area. Mr. Lismore’s annual base salary is $350,000. He is also eligible for an annual cash bonus of up to 40% of his annual base salary for the year in which the bonus is granted, based on his achievement of personal objectives and our achievement of corporate objectives determined by our board of directors or Compensation Committee. Contingent on his relocation to the San Francisco Bay Area by a date agreed to by our board of directors, Mr. Lismore will be entitled to a one-time relocation allowance pursuant to which we will reimburse up to $50,700 of his relocation expenses (which he must repay to us if he voluntarily resigns without “good reason” within 12 months of the completion of our initial public offering), as well as reimbursement of up to $10,000 for vacation travel in each of fiscal years 2016, 2017 and 2018.
Pursuant to his employment agreement, we granted Mr. Lismore a nonstatutory share option to purchase 100,000 of our ordinary shares at the greater of $15.00 per share or the public offering price, which vested 20% upon closing of our initial public offering and thereafter in substantially equal quarterly installments on the last day of each of the next 16 calendar quarters. Mr. Lismore is also eligible to receive annual equity awards of up to $400,000 in value, which may vest on service, performance or other conditions established by our board of directors. Upon a “change in control,” all equity awards held by Mr. Lismore will become 100% vested and exercisable in full.
Severance-Related Provisions
We may terminate Dr. Heffernan’s or Mr. Lismore’s employment at any time and for any reason, with or without cause, upon written notice. If we do so for “cause,” such executive officer would only be entitled to the prorated amount of his base salary and any accrued and used vacation or benefits through the termination date. If we do so without “cause” or either Dr. Heffernan or Mr. Lismore resigns for “good reason,” such executive officer would be entitled to continued payment of his base salary and health insurance premiums for himself and his eligible dependents for six months, a cash amount approximating the value of the annual equity award he would have received in the year of his termination (prorated through his termination date), and full acceleration of the vesting of his options and any annual equity awards (which will be exercisable for the remainder of the option term as if employment had not terminated). If either Dr. Heffernan or Mr. Lismore is terminated without “cause” or resigns for “good reason” immediately prior to, upon or within 12 months following a “change of control,” he will be entitled to these same benefits, except that the salary continuation and health insurance premium payments will continue for 12 months rather than six months.
We may terminate Dr. Gearing’s employment at any time by giving him six months’ written notice, or 12 months’ written notice if we terminate his employment immediately prior to, upon or within 12 months following a “change of control.” If we so terminate Dr. Gearing, he is entitled to a cash amount approximating the value of the
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annual equity award he would have received in the year of his termination (prorated through his termination date), and full acceleration of the vesting of his options and any annual equity awards (which will be exercisable for the remainder of the option term as if employment had not terminated). We may terminate Dr. Gearing summarily without notice or any payment in lieu of notice if he commits serious misconduct, he commits a serious or persistent breach of any material term or condition of his employment agreement, he refuses or fails to comply with our lawful and reasonable directive that is not timely rectified, he engages in any fraudulent or dishonest conduct or other specified conditions arise that impact his ability to perform his duties or may bring us into disrepute.
Each of Dr. Heffernan, Dr. Gearing and Mr. Lismore may terminate his employment at any time by giving us three months’ notice, and in this case all of his unvested options and annual equity awards will not vest or be exercisable on the date his employment terminates.
Certain Definitions
For purposes of each of our NEOs’ employment agreement, a “change in control” means: (i) a merger or consolidation or the sale, or exchange by our shareholders of all or substantially all of our share capital, where our shareholders immediately before such transaction do not obtain or retain, directly or indirectly, at least a majority of the beneficial interest in the voting equity of the surviving or acquiring entity in substantially the same proportion as before such transaction; (ii) any transaction or series of related transactions to which we are a party in which in excess of 50% of our voting power is transferred, other than a transfer in which our shareholders immediately before such transfer do not obtain or retain, directly or indirectly, more than 50% of the beneficial interest in the voting equity of the entity to which the voting power of our company was transferred; or (iii) the sale or exchange of all or substantially all of our assets, other than a sale or transfer one of our subsidiaries in which our shareholders immediately before such sale or exchange do not obtain or retain, directly or indirectly, at least a majority of the beneficial interest in the voting equity of the entity acquiring our assets in substantially the same proportion as before such transaction.
For purposes of each of Dr. Heffernan’s and Mr. Lismore’s employment agreement:
| · | “Cause” means: (i) his gross negligence, gross misconduct or refusal to perform his duties and responsibilities to us (including any willful act or omissions that have a material adverse effect on our reputation or financial statements) after receiving a written description of such failure and been provided with 30 days to cure such failure, or his material breach of fiduciary duties to us; (ii) his conviction of, or plea of nolo contendere to, a felony; or (iii) his engagement in acts of embezzlement or material dishonesty; and |
| · | “Good reason” means his resignation within 90 days after one of the following conditions has come into existence without his consent: (i) the material breach by us of any of our obligations under the employment agreement; (ii) a material reduction of his duties, position or responsibilities or his removal from such position and responsibilities, or a reduction in the level of supervisor within the organization to whom he reports; (iii) a material reduction in his base salary, unless such reduction is made in connection with a company-wide cost reduction effort; (iv) our requirement that he report to a new primary work location; or (v) a material reduction in the kind or level of employee benefits to which he is entitled immediately prior to such reduction with the result that his overall benefits package is significantly reduced such that the reduction constitutes a “material negative change” to his employment relationship (within the meaning of Section 1.409A-1(n)(2) of the United States Treasury Regulations), unless such reduction is made in connection with a company-wide cost reduction effort of similar scope for all similarly situated employees. |
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2012 Employee Share Option Plan
In August 2012, our board of directors adopted our Employee Share Option Plan (the “2012 Plan”). Pursuant to the 2012 Plan, we issued 264,386 ordinary shares at $4.20 per share to employees (including executive officers), consultants and each member of our board of directors who could purchase such ordinary shares with an interest-free, limited recourse loan payable to us. These limited recourse loans were not collateralized and were not recourse to the assets of the borrower, except to the extent of the shares issued. Because the loans were the sole consideration for the shares issued, we accounted for these arrangements as share options since the substance is similar to the grant of an option, with a deemed exercise price equal to the loan amount. The fair value of the notional share options was expensed in fiscal year 2013 when vested with a corresponding credit to additional paid-in capital.
The limited recourse loans were repayable within 30 days of the termination of service to us of the employee, director or consultant. Failure to pay back the loan within that time frame would have resulted in relinquishing of those shares by the shareholder. The balance of loans outstanding as of June 30, 2015 and 2014 was zero and $1.0 million, respectively. We do not recognize a separate receivable for limited recourse loans.
The 2012 Plan is no longer in use. Between June 30, 2014 and September 30, 2014, all of the limited recourse loans were repaid in cash or satisfied by our repurchase of certain ordinary shares issued subject to such loans at a purchase price of $6.35 per ordinary share. We issued to each former holder of such ordinary shares an option to purchase a number of ordinary shares equal to the number of ordinary shares repurchased with an exercise price of $6.35 per ordinary share. The new options expire in February 2018, consistent with the original repayment date of the loan. With respect to Dr. Heffernan, his $0.3 million loan amount was satisfied with a repurchase by us of 52,040 ordinary shares held by him and the grant to him of an option to purchase 52,040 ordinary shares. With respect to Dr. Gearing, his $0.3 million loan amount was satisfied with a repurchase by us of 46,372 ordinary shares held by him and the grant to him of an option to purchase 46,372 ordinary shares. As a result of the repurchases, all of the limited recourse loans were repaid in our first fiscal quarter of 2015.
2013 Long Term Incentive Plan
In September 2013, our board of directors approved a long-term incentive plan for our employees (including executive officers), directors and consultants pursuant to which in November 2013 we issued share options to purchase 215,799 ordinary shares and restricted share units to acquire 29,214 ordinary shares to employees, directors and consultants. The underlying ordinary shares had a fair value of $5.15 per share, but the awards had an exercise or conversion price, as applicable, of zero, as permitted under Australian law. In August 2014, in anticipation of Nexvet Biopharma Limited, a newly-formed Irish private company, becoming the parent company of Nexvet Australia and its subsidiaries, all of the holders of securities of Nexvet Australia exchanged their holdings for equivalent securities of Nexvet Biopharma Limited. We refer to this transaction as the “Irish Exchange.” Because Irish law requires the payment to an issuer of at least the nominal value of shares in order to acquire such shares from the issuer, any options or restricted share units with a zero exercise or conversion price became exercisable or convertible, as applicable, at their nominal value in August 2014 in anticipation of the Irish Exchange. This nominal value became $0.10 per ordinary share in September 2014 in connection with the Irish Exchange and was revised to $0.125 per ordinary share in connection with the four-for-five share consolidation in November 2014. In September 2014, we also issued share options to purchase 16,800 ordinary shares and restricted share units to acquire 21,240 ordinary shares to employees, directors and consultants. The underlying ordinary shares had a fair value of $6.35 per ordinary share, but the awards had an exercise or conversion price of the nominal value of $0.10 per ordinary share, which nominal value became $0.125 per ordinary share in connection with the four-for five share consolidation in November 2014. Except for share options and restricted share units held by directors (which vested in November 2014), share options and restricted share units held by employees and consultants vest in three equal tranches in November 2014, November 2015 and November 2016. We revised this plan in September 2014 and refer to this plan as our “2013 Plan.”
The 2013 Plan was terminated in connection with our initial public offering. The 2013 Plan continues to govern outstanding awards granted thereunder. Appropriate adjustments will be made in the number of authorized
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ordinary shares and other numerical limits in our 2013 Plan and in outstanding awards to prevent dilution or enlargement of participants’ rights in the event of a share split or other change in our capital structure.
Prior to its termination, the 2013 Plan was administered by our board of directors. Subject to the provisions of our 2013 Plan, the board of directors determined, in its discretion, the persons to whom, and the times at which, awards were granted, as well as the size, terms and conditions of each award, under the 2013 Plan. All awards are evidenced by a written agreement between us and the holder of the award. The board of directors has the authority to construe and interpret the terms of the 2013 Plan and awards granted under our 2013 Plan.
In the event of a change of control as described in our 2013 Plan, the acquiring or successor entity may assume or continue all or any awards outstanding under our 2013 Plan or substitute substantially equivalent awards. Any awards which are not assumed or continued in connection with a change of control or are not exercised or settled prior to the change of control will terminate effective as of the time of the change of control. Our board of directors may provide for the acceleration of vesting of any or all outstanding awards upon such terms and to such extent as it determines, except that the vesting of all awards held by members of our board of directors who are not employees will automatically be accelerated in full. Our 2013 Plan also authorizes our board of directors, in its discretion and without the consent of any participant, to cancel each or any outstanding award denominated in ordinary shares upon a change of control in exchange for a payment to the participant with respect to each share subject to the cancelled award of an amount equal to the excess of the consideration to be paid per ordinary share in the change of control transaction over the exercise price per ordinary share, if any, under the award.
2015 Equity Incentive Plan
In September 2014, our board of directors adopted, and in November 2014 our shareholders approved, the 2015 Equity Incentive Plan (“2015 Plan”). The 2015 Plan was amended by our board of directors in January 2015 and became effective on the date immediately prior to the date of the prospectus for our initial public offering. The 2015 Plan is intended to provide incentives that will assist us in attracting, retaining and motivating employees, including officers, consultants and directors. We may provide these incentives through the grant of share options, restricted share units, performance shares and units and other cash-based or share-based awards.
A total of 1,280,000 of our ordinary shares were initially authorized and reserved for issuance under the 2015 Plan. This reserve has or will automatically increase on July 1 of each year through 2024 by an amount equal to the lesser of:
| · | Four percent of the number of our ordinary shares issued and outstanding on the immediately preceding June 30; and |
| · | An amount determined by our board of directors. |
The ordinary shares available under the 2015 Plan will not be reduced by awards settled in cash, but will be reduced by ordinary shares withheld to satisfy tax withholding obligations with respect to ordinary share options (but not other types of awards). The gross number of ordinary shares issued upon the exercise of options exercised by means of a net exercise or by tender of previously-owned ordinary shares will be deducted from the ordinary shares available under the 2015 Plan. Notwithstanding the foregoing, and subject to adjustment as described below, the maximum aggregate number of ordinary shares that may be subject to issuance at any given time under the 2015 Plan in connection with outstanding awards shall not exceed a number equal to ten percent of our total issued and outstanding ordinary shares (calculated on a non-diluted basis).
Appropriate adjustments will be made in the number of authorized ordinary shares and other numerical limits in the 2015 Plan and in outstanding awards to prevent dilution or enlargement of participants’ rights in the event of a share split or other change in our capital structure. Ordinary shares subject to awards which expire or are cancelled or forfeited will again become available for issuance under the 2015 Plan.
The 2015 Plan is generally administered by the Compensation Committee. Subject to the provisions of the 2015 Plan, the Compensation Committee will determine in its discretion the persons to whom and the times at which awards are granted, the sizes of such awards and all of their terms and conditions. The Compensation Committee has the authority to construe and interpret the terms of the 2015 Plan and awards granted under it. The 2015 Plan provides, subject to certain limitations, for indemnification by us of any director, officer or employee against all
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reasonable expenses, including attorneys’ fees, incurred in connection with any legal action arising from such person’s action or failure to act in administering the 2015 Plan.
The 2015 Plan authorizes the Compensation Committee, without further shareholder approval, to provide for the cancellation of share options with exercise prices in excess of the fair market value of the underlying ordinary shares in exchange for new options or other equity awards with exercise prices equal to the fair market value of the underlying ordinary shares or a cash payment.
Awards may be granted under the 2015 Plan to our employees, including officers, directors or consultants, or those of any present or future parent or subsidiary corporation or other affiliated entity. All awards will be evidenced by a written agreement between us and the holder of the award and may include any of the following:
| · | Share options.The Compensation Committee may grant nonstatutory share options or incentive share options (as described in Section 422 of the Internal Revenue Code of 1986, as amended), each of which gives its holder the right, during a specified term (not exceeding ten years) and subject to any specified vesting or other conditions, to purchase a number of our ordinary shares with an exercise price per share determined by the administrator, which may not be less than the fair market value of an ordinary share on the date of grant. The maximum term of any share option granted under the 2015 Plan is seven years. The maximum number of ordinary shares that may be issued as incentive share options is 1,280,000. |
| · | Restricted share units. Restricted share units represent rights to receive ordinary shares (or their value in cash) at a future date without payment of a purchase price, other than the nominal value per ordinary share as required by Irish law, subject to vesting or other conditions specified by the administrator. Holders of restricted share units have no voting rights or rights to receive cash dividends unless and until ordinary shares are issued in settlement of such awards. However, the administrator may grant restricted share units that entitle their holders to dividend equivalent rights. |
| · | Performance awards. Performance awards, consisting of either performance shares or performance units, are awards that will result in a payment to their holder only if specified performance goals are achieved during a specified performance period. The administrator establishes the applicable performance goals based on one or more measures of business performance enumerated in the 2015 Plan, such as revenue, gross margin, net income or total shareholder return. To the extent earned, performance awards may be settled in cash, in ordinary shares or a combination of both in the discretion of the administrator. Holders of performance shares or performance units have no voting rights or rights to receive cash dividends unless and until ordinary shares are issued in settlement of such awards. However, the administrator may grant performance shares that entitle their holders to dividend equivalent rights. |
| · | Cash-based awards and other share-based awards. The administrator may grant cash-based awards that specify a monetary payment or range of payments or other share-based awards that specify a number or range of ordinary shares or units that, in either case, are subject to vesting or other conditions specified by the administrator. Settlement of these awards may be in cash or ordinary shares, as determined by the administrator. The holder of such an award will have no voting rights or right to receive cash dividends unless and until ordinary shares are issued pursuant to the award. The administrator may grant dividend equivalent rights with respect to other share-based awards. |
In the event of a change of control as described in the 2015 Plan, the acquiring or successor entity may assume or continue all or any awards outstanding under the 2015 Plan or substitute substantially equivalent awards. The Compensation Committee may provide for the acceleration of vesting of any or all outstanding awards upon such terms and to such extent as it determines. Any awards which are not assumed, continued or substituted for in connection with a change of control or are not exercised or settled prior to the change of control will terminate effective as of the time of the change of control. Notwithstanding the foregoing, except as otherwise provided in an award agreement governing any award as determined by the Compensation Committee and subject to applicable law, any award that is not assumed, continued or substituted for in connection with a change of control shall become fully vested and exercisable and/or settleable immediately prior to, but conditioned upon, the consummation of the change of control. The 2015 Plan also authorizes the Compensation Committee, in its discretion and without the
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consent of any participant, to cancel each or any outstanding award denominated in shares upon a change of control in exchange for a payment to the participant with respect to each share subject to the cancelled award of an amount equal to the excess of the consideration to be paid per ordinary share in the change of control transaction over the exercise price per share, if any, under the award.
The 2015 Plan will continue in effect until it is terminated by our board of directors, provided, however, that all awards will be granted, if at all, within ten years of its effective date. The board of directors may amend, suspend or terminate the 2015 Plan at any time, provided that without shareholder approval the 2015 Plan cannot be amended to increase the number of shares authorized, change the class of persons eligible to receive incentive share options or effect any other change that would require shareholder approval under any applicable law or listing rule.
To the fullest extent permitted by Irish law, our Articles contain indemnification for the benefit of our directors and executive officers. However, as to our directors and company secretary, this indemnity is limited by the 2014 Act, which prescribe that an advance commitment to indemnify only permits a company to pay the costs or discharge the liability of a director or company secretary where judgment is given in favor of the director or company secretary in any civil or criminal action in respect of such costs or liability, or where an Irish court grants relief because the director or company secretary acted honestly and reasonably and ought fairly to be excused. Any provision whereby an Irish company seeks to commit in advance to indemnify its directors or company secretary over and above the limitations imposed by the 2014 Act will be void, whether contained in its articles of association or any contract between the company and the director or company secretary. This restriction does not apply to our executive officers who are not directors, the company secretary or other persons who would be considered “directors” within the meaning of the 2014 Act.
We are permitted under our Articles and the 2014 Act to take out directors’ and officers’ liability insurance, as well as other types of insurance, for our directors, officers, employees and agents. In order to attract and retain qualified directors and officers, we expect to purchase and maintain customary directors’ and officers’ liability insurance and other types of comparable insurance.
We have entered, and intend to continue to enter, into separate indemnification agreements with our directors and executive officers, in addition to the indemnification provided for in our Articles. These agreements, among other things, provide that we will to the extent permitted under our Articles and the 2014 Act indemnify and provide expense advancement for our directors and executive officers for certain expenses, including attorneys’ fees, judgments, fines, and settlement amounts incurred by a director or executive officer in any action or proceeding arising out of their services as one of our directors or executive officers, or any of our subsidiaries or any other company or enterprise to which the person provides services at our request. At present, there is no pending litigation or proceeding involving any of our directors or executive officers as to which indemnification is required or permitted, and we are not aware of any threatened litigation or proceeding that may result in a claim for indemnification.
The indemnification provisions in our Articles may discourage shareholders from bringing a lawsuit against directors for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers, even though an action, if successful, might benefit us and our shareholders. A shareholder’s investment may be harmed to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. Insofar as indemnification for liabilities under the Securities Act of 1933, as amended, may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933, as amended, and is therefore unenforceable. There is no pending litigation or proceeding naming any of our directors or officers as to which indemnification is being sought, nor are we aware of any pending or threatened litigation that may result in claims for indemnification by any director or officer.
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Non-Employee Director Compensation
We currently provide cash compensation to certain of our non-employee directors. From time to time, we have also granted option awards and restricted share units to certain of our non-employee directors as compensation for their services. The compensation of Dr. Heffernan, a director and our Chief Executive Officer, is discussed in the
section titled “Executive Compensation.” Starting in fiscal year 2015, directors who are also our employees do not receive additional compensation for their service as directors. The following table sets forth information regarding compensation earned by our non-employee directors during fiscal year 2015.
Name | Fees Earned or | Equity | Total(1) | |||||||||
| Current Directors | ||||||||||||
| Chris Brown | $ | 77,935 | $ | 45,207 | $ | 123,142 | ||||||
| George Gunn, BVM&S, DVSM, MRCVS, Ph.D. | 21,750 | 9,790 | 31,540 | |||||||||
| Ashraf Hanna, Ph.D., M.D. | 43,171 | 30,024 | 73,195 | |||||||||
| Cormac Kilty, Ph.D. | 48,869 | 22,419 | 71,288 | |||||||||
| Joseph McCracken, DVM | 24,449 | 47,569 | 72,018 | |||||||||
| John Payne | 45,647 | 42,360 | 88,007 | |||||||||
| Graeme Wald, Ph.D.(3) | 48,817 | 22,419 | 71,236 | |||||||||
| Rajiv Patel | 17,431 | 16,644 | 34,075 | |||||||||
| (1) | Dollar amounts reflect the U.S. dollar equivalent of the amounts paid to our directors in Australian dollars. |
| (2) | Reflects the grant date fair value of all awards made during fiscal year 2015 calculated using the assumptions described in the notes to our consolidated financial statements included in our annual report on Form 10-K. As of June 30, 2015, our non-employee directors held the following share-based awards: Mr. Brown and Dr. Wald, options to purchase 10,680 and 3,600 ordinary shares, respectively; Dr. Gunn, Dr. Hanna, Dr. McCracken and Mr. Patel, restricted share units to acquire 6,900, 4,000, 4,000 and 5,000 ordinary shares, respectively. |
| (3) | Dr. Wald resigned as a director effective June 30, 2015. |
Our board of directors adopted a director compensation policy for all non-employee directors, which became effective upon completion of our initial public offering, pursuant to which non-employee directors are compensated for their services on our board of directors and employees who serve as directors receive no separate compensation for such service. Pursuant to the policy:
| · | each non-employee director will receive an annual cash retainer of $40,000 or an equivalent number of ordinary shares for the director’s service during the year; |
| · | the Chairman of the Board will receive an annual cash retainer of $80,000 for the Chairman’s service during the year; |
| · | the chairman of the Audit Committee will receive an additional annual fee of $15,000 for the chairman’s service during the year and each Audit Committee member will receive $7,500 for the member’s service during the year; |
| · | the chairman of the Compensation Committee will receive an additional annual fee of $10,000 for the chairman’s service during the year and each Compensation Committee member will receive $5,000 for the member’s service during the year; and |
| · | the chairman of the Nominating Committee will receive an additional annual fee of $7,500 for the chairman’s service during the year and each Nominating Committee member will receive $3,500 for the member’s service during the year. |
The policy further provides for the grant of equity awards as follows:
| · | each non-employee director appointed to our board of directors following this offering will receive an annual grant of options to purchase 3,600 ordinary shares with an exercise price of the nominal value of $0.125 per ordinary share, except that non-employee directors who are U.S. residents will receive a comparable grant of restricted share units. The options or restricted share units will vest quarterly in arrears over a 12-month period; and |
| · | each new non-employee director will receive an initial grant of options to purchase 6,000 ordinary shares with an exercise price of the nominal value of $0.125 per ordinary share, except that non- |
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employee directors who are U.S. residents will receive a comparable grant of restricted share units. The options or restricted share units will vest quarterly in arrears over a 36-month period.
Each director is also entitled to be reimbursed for reasonable travel and other expenses incurred in connection with attending meetings of our board of directors and any committee on which he or she serves.
Certain Relationships and Related Transactions
Since July 1, 2014, there has not been any transaction or series of similar transactions to which we were or are a party in which the amount involved exceeded or exceeds $120,000 and in which any of our directors or executive officers, any holder of more than five percent of any class of our voting securities or any member of the immediate family of any of the foregoing persons had or will have a direct or indirect material interest, other than the arrangements described in the sections of this proxy statement titled “Non-Employee Director Compensation” and “Executive Compensation” and the transactions set forth below. We believe that we have executed all of the transactions set forth below on terms no less favorable to us than we could have obtained from unaffiliated third parties.
Consulting Agreements
Dr. Andrew Gearing is a former director, a co-founder of our company and a brother of David Gearing, a co-founder of our company and our Chief Scientific Officer. Dr. Andrew Gearing serves on the board of directors of Biocomm Square Pty Ltd. In August 2010 and August 2013, we entered into consulting agreements with Biocomm Square Pty Ltd for research and development support services. These agreements were superseded by a new consulting agreement in December 2013, which was amended in April 2014. In addition, we entered into an agreement with Biocomm Square Pty Ltd in November 2011 for assistance in obtaining partnering arrangements with Japanese entities. We paid Biocomm Squared Pty Ltd $0.2 million and $0.2 million for fiscal years 2015 and 2014, respectively, related to these agreements.
Robert Gearing is the brother of David Gearing, one of our co-founders and our Chief Scientific Officer, and owns and operates Ridge Biotechnology Consulting, LLC. In April 2011 and April 2012, we entered into consulting agreements with Ridge Biotechnology Consulting, LLC for the provision of manufacturing consulting services, and we entered into a new consulting agreement with Ridge Biotechnology Consulting, LLC in January 2014. We paid Ridge Biotechnology Consulting, LLC $0.2 million and $0.1 million for fiscal years 2015 and 2014, respectively, related to these agreements.
Participation in our Initial Public Offering
In February 2015, we sold an aggregate of 700,000 ordinary shares, at the initial public offering price of $10.00 per share, to entities affiliated with Farallon Capital Management, L.L.C., which hold more than 5% of our ordinary shares and are affiliates of a director, for aggregate gross consideration of $0.7 million.
Shareholders Agreement and Registration Rights Agreement
In connection with our Series B preference share financing, we amended and restated our shareholders agreement pursuant to which we undertook to provide registration rights to the holders of our Series B preference shares. We amended and restated the shareholders agreement again in September 2014 in connection with the Irish Exchange. The shareholders agreement terminates upon the completion of this offering. In connection with this offering, we entered into a registration rights agreement with each holder of our Series B preference shares that grants such holder certain demand, Form S-3 and piggyback registration rights, which expressly superseded any registration rights under the shareholders agreement. Parties to the shareholders agreement and registration rights agreement include all of our executive officers and directors, other than George Gunn, Ashraf Hanna, Jürgen Horn and John Payne, directly or indirectly through trusts for their benefit (Mark Heffernan, Chief Executive Officer and a director; David Gearing, Chief Scientific Officer; Damian Lismore, Chief Financial Officer; Geraldine Farrell, Vice President Operations and General Counsel; Colin Giles, Vice President Clinical and Regulatory Affairs; Chris Brown, Chairman of the Board; Cormac Kilty, director; Raj Patel, director; and Graeme Wald, formerly a director), and all but one of our five percent or greater shareholders (Adage Capital Partners, LP; Akubra Investors, LLC; AustralianSuper Pty Ltd; Bushranger Funding, LLC; Foresite Capital Fund II, LP; and Ute Holdings, LLC). Following our initial public offering, the holders of 4,200,016 ordinary shares outstanding as of June 30, 2015 and
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1,574,998 ordinary shares issuable upon the exercise of warrants outstanding as of June 30, 2015, or their permitted transferees, are entitled to these registration rights.
Policy for Approval of Related Party Transactions
Our Audit Committee is responsible for reviewing and approving all transactions in which we are a participant and in which any parties related to us, including our executive officers, directors, beneficial owners of more than five percent of our securities, immediate family members of the foregoing persons, and any other persons whom our board of directors determines may be considered related parties, has or will have a direct or indirect material interest. If advance approval is not feasible, the Audit Committee has the authority to ratify a related party transaction at the next Audit Committee meeting. For purposes of our Audit Committee charter, a material interest is deemed to be any consideration received by such a party in excess of $100,000 per year.
In reviewing and approving such transactions, the Audit Committee obtains, or directs our management to obtain on its behalf, all information that our committee believes to be relevant and important to a review of the transaction prior to its approval. Following receipt of the necessary information, the Audit Committee discusses the relevant factors if deemed to be necessary prior to approval. If a discussion is not deemed to be necessary, approval may be given by written consent of the Audit Committee. This approval authority may also be delegated to the chairman of the Audit Committee in respect of any transaction in which the expected amount is less than $250,000. No related party transaction may be entered into prior to the completion of these procedures.
The Audit Committee or its chairman, as the case may be, approves only those related party transactions that are determined to be in, or not inconsistent with, the best interests of us and our shareholders, taking into account all available facts and circumstances as our committee or the chairman determines in good faith to be necessary. These facts and circumstances will typically include, but not be limited to, the material terms of the transaction, the nature of the related party’s interest in the transaction, the significance of the transaction to the related party and the nature of our relationship with the related party, the significance of the transaction to us, and whether the transaction would be likely to impair (or create an appearance of impairing) the judgment of a director or executive officer to act in our best interest. No member of the Audit Committee may participate in any review, consideration or approval of any related party transaction with respect to which the member or any of his or her immediate family members is the related party, except that such member of the Audit Committee will be required to provide all material information concerning the related party transaction to the Audit Committee.
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth information known to us regarding the beneficial ownership of our ordinary shares as of September 30, 2015 (the “Measurement Date”), for each of our directors, 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 own beneficially more than five percent of our outstanding ordinary shares. The table is based upon information supplied by officers, directors and principal shareholders.
We have determined beneficial ownership in accordance with the rules of the SEC, and the information is not necessarily indicative of beneficial ownership for any other purpose, including for purposes of Section 13(d) or 13(g) of the Exchange Act. In calculating the number of ordinary shares beneficially owned by a person and the percentage ownership of that person, we deemed outstanding all ordinary shares underlying options or warrants held by that person that are currently exercisable or exercisable within 60 days from the Measurement Date and all restricted share units that are convertible within 60 days from the Measurement Date. These ordinary shares, however, are not deemed outstanding for the purpose of computing the percentage ownership of any other person. Unless otherwise indicated and subject to community property laws where applicable, we believe the persons named in the following table have sole voting and investment power with respect to all ordinary shares shown as beneficially owned by them. Each shareholder’s percentage ownership is based on 11,457,921 ordinary shares outstanding as of the Measurement Date.
Unless otherwise indicated, the address of each beneficial owner is c/o NIBRT, Foster’s Avenue, Mount Merrion Blackrock, Co. Dublin, Ireland.
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| Name of Beneficial Owner | Ordinary Shares Beneficially Owned | Percent of Outstanding Shares | ||||||
| Named Executive Officers and Directors: | ||||||||
| Mark Heffernan, Ph.D.(1) | 342,711 | 3.0 | % | |||||
| David Gearing, Ph.D.(2) | 444,366 | 3.9 | ||||||
| Damian Lismore(3) | 78,031 | * | ||||||
| Chris Brown(4) | 19,480 | * | ||||||
| Ashraf Hanna, Ph.D., M.D. | 5,320 | * | ||||||
| George Gunn, BVM&S, DVSM, MRCVS, Ph.D.(5) | 11,900 | * | ||||||
| Cormac Kilty, Ph.D. | 144,964 | 1.3 | ||||||
| Joseph McCracken, DVM | 5,700 | * | ||||||
| John Payne(6) | 9,795 | * | ||||||
| Graeme Wald(7) | 22,471 | * | ||||||
| Rajiv Patel(10)(12)(16) | 3,181,576 | 27.8 | ||||||
| All directors and executive officers as a group (13 persons)(8) | 4,310,299 | 37.6 | ||||||
| 5% or Greater Shareholders: | ||||||||
| Adage Capital Partners, LP(9) | 1,100,000 | 9.6 | ||||||
| Akubra Investors, LLC(10) | 1,000,699 | 8.7 | ||||||
| AustralianSuper Pty Ltd ATF AustralianSuper(11) | 755,096 | 6.6 | ||||||
| Bushranger Funding, LLC(12) | 1,079,211 | 9.4 | ||||||
| Foresite Capital Fund II, LP(13) | 908,333 | 7.9 | ||||||
| Irrus Investments Nominee Limited(14) | 712,134 | 6.2 | ||||||
| One Funds Management Limited ATF Asia Pacific Healthcare Fund II(15) | 964,272 | 8.4 | ||||||
| Ute Holdings, LLC(16) | 1,098,786 | 9.6 | ||||||
| Wellington Management Group LLP(17) | 1,307,680 | 11.4 | ||||||
| * | Represents beneficial ownership of less than 1% of the outstanding ordinary shares. |
| (1) | Includes 234,383 ordinary shares and 61,244 ordinary shares issuable upon the exercise of options within 60 days of the Measurement Date held by Mark Heffernan and his spouse, Patricia Heffernan, as trustees for M&T Heffernan A/C, as to which Dr. Heffernan and Ms. Heffernan, have shared voting and dispositive power, and 35,000 ordinary shares issuable upon the exercise of options within 60 days of the Measurement Date. |
| (2) | Includes 83,664 ordinary shares held by DJGearing Pty Ltd, as trustee for Gearing Family Superannuation Fund, 264,526 ordinary shares and 55,576 ordinary shares issuable upon the exercise of options within 60 days of the Measurement Date held by Gearing Family Pty Ltd as trustee for Gearing Family A/C, as to which David Gearing and his spouse, Julie Gearing, have shared voting and dispositive power, and 35,000 ordinary shares issuable upon the exercise of options within 60 days of the Measurement Date. |
| (3) | Includes 13,724 ordinary shares and 5,147 ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date held by Glenariff Superannuation Pty Ltd, as to which Mr. Lismore and his spouse, Martina Lismore, have shared voting and dispositive power, 7,080 ordinary shares and 7,080 ordinary shares issuable upon the exercise of options within 60 days of the Measurement Date held by Ms. Lismore, and 35,000 ordinary shares issuable upon the exercise of options within 60 days of the Measurement Date. |
| (4) | Includes 8,800 ordinary shares held by Elsing Pty Ltd, as to which Mr. Brown has sole voting and dispositive power, and 10,680 ordinary shares issuable upon the exercise of options within 60 days of the Measurement Date. |
| (5) | Dr. Gunn was appointed to our board of directors effective March 31, 2015. |
| (6) | Includes 6,195 ordinary shares held by John B. Payne Living A/C as to which Mr. Payne has sole voting and dispositive power. |
| (7) | Includes 7,548 ordinary shares and 2,831 ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date held by JanCutz Pty Ltd, and 6,176 ordinary shares and 2,316 ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date, held by Wald Funds Pty Ltd, as to which Mr. Wald has sole voting and dispositive power. Mr. Wald resigned from our board of directors effective June 30, 2015. |
| (8) | Includes 685,930 ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date and 150,919 ordinary shares issuable upon the exercise of options within 60 days of the Measurement Date. |
| (9) | Based on a Schedule 13G filed by Adage Capital Partners, L.P. with the SEC on February 17, 2015. Includes 225,000 ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date. Adage Capital Partners, GP, LLC (“ACPGP”), serves as the general partner of Adage Capital Partners, LP (the “Fund”), and as such has discretion over the portfolio of securities beneficially owned by the Fund. Adage Capital Advisors, LLC (“ACA”), is the managing member of ACPGP and directs ACPGP’s operations. Robert Atchinson and Phillip Gross are the managing members of ACA. Mr. Atchinson and Mr. Gross disclaim beneficial ownership of the reported securities except to the extent of their pecuniary interest therein. The address of Adage Capital Partners, L.P. is 200 Clarendon Street, 52nd Floor, Boston, Massachusetts 02110. |
30
| (10) | Based on a Schedule 13D filed by Farallon Capital Management, L.L.C. with the SEC on February 20, 2015 and a Form 4 filed by Farallon Capital Management, L.L.C. with the SEC on September 11, 2015. Includes 212,500 ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date. The members of Akubra Investors, LLC (“Akubra”), are: FCIP XR 2014, L.L.C. (“FCIP XR”); and Noonday Special Situation Partners, L.P. (“NSSP”). FCIP XR and NSSP together are referred to as the Farallon Akubra Funds. Farallon Capital Institutional Partners, L.P. (“FCIP”) is the sole member of FCIP XR and may be deemed to beneficially own the ordinary shares owned indirectly by FCIP XR. Farallon Partners, L.P. (“FP”), is the general partner of FCIP and may be deemed to beneficially own the ordinary shares owned indirectly by FCIP XR. NGP, L.L.C. (“NGP”) is the general partner of NSSP and may be deemed to beneficially own the ordinary shares owned indirectly by NSSP. Farallon is the manager of NGP and may be deemed to beneficially own the ordinary shares owned indirectly by NSSP. As managing members of Farallon and of FP, with the power to exercise investment discretion, each of Michael Fisch, Richard Fried, Daniel Hirsch, David Kim, Monica Landry, Michael Linn, Rajiv Patel, Thomas Roberts, Jr., Andrew Spokes, John Warren and Mark Wehrly (collectively, the “Farallon Managing Members”) may be deemed to beneficially own the ordinary shares indirectly owned by each of the Farallon Akubra Funds. Each of the Farallon Akubra Funds, FCIP, FP, NGP, Farallon and the Farallon Managing Members disclaims beneficial ownership of the ordinary shares held by Akubra. The address of Akubra is One Maritime Plaza, Suite 2100, San Francisco, California 94111. |
| (11) | Includes 59,344 ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date. Dr. Chris Nave and Dr. Stephen Thompson, of BCP2 Pty Ltd, as attorney and manager of AustralianSuper Pty Ltd as trustee for AustralianSuper, have voting and dispositive power with respect to these ordinary shares. The address of AustralianSuper Pty Ltd ATF AustralianSuper is c/o Brandon Capital Partners, Level 9, 278 Collins Street, Melbourne, Victoria, 3000, Australia. |
| (12) | Based on a Schedule 13D filed by Farallon Capital Management, L.L.C. with the SEC on February 20, 2015 and a Form 4 filed by Farallon Capital Management, L.L.C. with the SEC on September 11, 2015. Includes 229,172 ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date. The members of Bushranger Funding, LLC (“Bushranger”) are: FCP XR 2014, L.L.C. (“FCP XR”); Farallon Capital Institutional Partners III, L.P. (“FCIP III”); and Farallon Capital AA Investors, L.P. (“FCAAI”). FCP XR, FCIP III and FCAAI together are referred as the Farallon Bushranger Funds. Farallon Capital Partners, L.P. (“FCP”) is the sole member of FCP XR and may be deemed to beneficially own the ordinary shares owned indirectly by FCP XR. FP is the general partner of FCP and of FCIP III and may be deemed to beneficially own the ordinary shares owned indirectly by FCP and FCIP III. Farallon AA GP, L.L.C. (“FAAGP”), is the general partner of FCAAI and may be deemed to beneficially own the ordinary shares owned indirectly by FCAAI. FP is the sole member of FAAGP and may be deemed to beneficially own the ordinary shares owned indirectly by FCAAI. As managing members of FP with the power to exercise investment discretion, each of the Farallon Managing Members may be deemed to beneficially own the ordinary shares indirectly owned by each of the Farallon Bushranger Funds. Each of the Farallon Bushranger Funds, FCP, FP, FAAGP and the Farallon Managing Members disclaims beneficial ownership of the ordinary shares held by Bushranger. The address of Bushranger is One Maritime Plaza, Suite 2100, San Francisco, California 94111. |
| (13) | Based on a Schedule 13G filed by Foresite Capital Fund II, L.P. with the SEC on February 11, 2015. Includes200,000ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date. As managing member of Foresite Capital Management II, LLC, James Tananbaum has voting and dispositive power with respect to these ordinary shares. Foresite Capital Management II, LLC, is the general partner of Foresite Capital Fund II, LP. The address of Foresite Capital Fund II, LP is c/o Foresite Capital Management, LLC, 101 California Street, Suite 4100, San Francisco, California 94111. |
| (14) | Includes 80,250 ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date. Aidan O’Driscoll, as the authorized director of Irrus Investments Nominee Limited, has voting and dispositive power with respect to these ordinary shares. The address of Irrus Investments Nominee Limited is No. 1 Grants Row, Second Floor, Mount Street Lower, Dublin 2, Ireland. |
| (15) | Includes 90,900 ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date. Justin Epstein, as the authorized director of One Funds Management Limited, the trustee for Asia Pacific Healthcare Fund II, has voting and dispositive power with respect to these ordinary shares. The address of One Funds Management Limited ATF Asia Pacific Healthcare Fund II is Level 13, 20 Hunter Street, Sydney, New South Wales, 2000, Australia. |
| (16) | Based on a Schedule 13D filed by Farallon Capital Management, L.L.C. with the SEC on February 20, 2015 and a Form 4 filed by Farallon Capital Management, L.L.C. with the SEC on September 11, 2015. Includes 233,328 ordinary shares issuable upon the exercise of warrants within 60 days of the Measurement Date. The members of Ute Holdings, LLC (“Ute”) are: FCOI II Special Situation 2014, Ltd. (“FCOI II SS”); Farallon Capital Institutional Partners II, L.P. (“FCIP II”); and Farallon Special Situation Partners VI, L.P. (“FSSP VI”). FCOI II SS, FCIP II and FSSP VI together are referred to as the “Farallon Ute Funds.” Farallon Capital Offshore Investors II, L.P. (“FCOI II”) is the sole owner of FCOI II SS and may be deemed to beneficially own the ordinary shares owned indirectly by FCOI II SS. FP is the general partner of FCOI II SS and of FCIP II and may be deemed to beneficially own the ordinary shares owned indirectly by FCOI II SS and FCIP II. Farallon Partners GP VI, L.L.C. (“FPGP VI”) is the general partner of FSSP VI and may be deemed to beneficially own the ordinary shares owned indirectly by FSSP VI. FP is the sole member of FPGP VI and may be deemed to beneficially own the ordinary shares owned indirectly by FSSP VI. As managing members of FP with the power to exercise investment discretion, each of the Farallon Managing Members may be deemed to beneficially own the ordinary shares indirectly owned by each of the Farallon Ute Funds. Each of the Farallon Ute Funds, FCOI II, FP, FPGP VI and the Farallon Managing Members disclaims beneficial ownership of the ordinary shares held by Ute. The address of Ute is One Maritime Plaza, Suite 2100, San Francisco, California 94111. |
| (17) | Based on a Schedule 13G filed by Wellington Management Group LLP with the SEC on October March 10, 2015. |
31
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Exchange Act requires our executive officers and directors and persons who beneficially own more than 10% of our ordinary shares to file initial reports of beneficial ownership and reports of changes in beneficial ownership with the SEC. Such persons are required by SEC regulations to furnish us with copies of all Section 16(a) forms filed by such persons.
Based solely on our review of such forms furnished to us, and written representations from certain reporting persons, we believe that all filing requirements applicable to our executive officers, directors and greater than 10% shareholders during the fiscal year ended June 30, 2015 were satisfied, except for untimely filings of the Form 3 relating to George Gunn’s appointment to our board of directors in March 2015 and the Form 4 relating to Rajiv Patel’s settlement of restricted stock units in June 2015.
Deadline for Receipt of Shareholder Proposals or Nominations
for 2016 Annual Meeting
Pursuant to Rule 14a-8 under the Exchange Act, shareholder proposals may be eligible for inclusion in our proxy statement for the 2016 annual meeting if received by the Corporate Secretary at our principal executive offices no later than 120 days in advance of the one-year anniversary of the date this proxy statement was released to shareholders, which will be the close of business by June 21, 2016. Holders of proxies for our 2016 annual meeting may exercise discretionary authority on any matter for which we do not receive notice prior to 45 calendar days in advance of the one-year anniversary of the date this proxy statement was first sent to shareholders.
Submitting a shareholder proposal does not guarantee that we will include it in our proxy statement, and we do not intend to entertain any proposals or nominations that do not meet these requirements. For information on qualifications of director nominees considered by our board of directors and shareholder proposals, see the “Corporate Governance” section of this proxy statement.
In addition, our Articles provide that any shareholder intending to nominate a candidate for election to our board of directors at our 2016 annual meeting must give notice to the Corporate Secretary at our principal executive offices, not earlier than the close of business on the 150th day nor later than the close of business on the 90th day prior to the first anniversary of the date of the preceding year’s annual meeting as first specified in the notice of meeting (without regard to any postponements or adjournments of such meeting after the notice was first given). Accordingly, any such shareholder proposal must be received between June 22, 2016 and August 21, 2016.
The notice must include the information specified in our Articles, including information concerning the nominee or proposal, as the case may be, and information concerning the proposing or nominating shareholder’s ownership of and agreements related to our shares.
At the date of this proxy statement, our board of directors knows of no other business that will be conducted at the 2015 annual meeting other than as described in this proxy statement. If any other matter or matters are properly brought before the meeting or any adjournment or postponement of the meeting, the persons named in the accompanying proxy will vote the proxy on such matters in their discretion.
32
Shareholders Sharing the Same Last Name and Address
To reduce the expense of delivering duplicate proxy materials to shareholders who may have more than one account holding our ordinary shares but sharing the same address, we have adopted a procedure approved by the SEC called “householding.” Under this procedure, certain shareholders of record who have the same address and last name will receive only one copy of our proxy materials and, as applicable, any additional proxy materials that are delivered until such time as one or more of these shareholders notifies us that they want to receive separate copies. This procedure reduces duplicate mailings and saves printing costs and postage fees, as well as natural resources. Shareholders who participate in householding will continue to have access to and utilize separate proxy voting instructions.
If you receive a single set of proxy materials as a result of householding, and you would like to have separate copies of our annual report or proxy statement mailed to you, or if you received multiple copies of the annual meeting materials and would prefer to receive a single copy in the future, please submit a request to our Corporate Secretary as follows:
Corporate Secretary
NIBRT (National Institute for Bioprocessing Research & Training),
Foster's Ave, Mount Merrion, Blackrock, Co. Dublin, Ireland
Telephone: +353 (1) 901 0339
| By order of the Board of Directors | |
| Geraldine Farrell | |
| Corporate Secretary | |
October , 2015
33
COMPANIESACTS, 1963 TO 2013ACT 2014
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUMCONSTITUTION
AND
ARTICLES OF ASSOCIATION
OF
NEXVET BIOPHARMA PUBLIC LIMITED COMPANY
(Amended by Special Resolution on 17 November 2014)
| 1 |
COMPANIESACTS, 1963 TO 2013ACT 2014
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
NEXVET BIOPHARMA PUBLIC LIMITED COMPANY
| 1. |
| 2. |
| 3. |
| 3.1 |
| 3.2 |
| 3.3 |
| 2 |
| 3.4 |
| 3.5 |
| 3.6 |
| 3.7 |
| 3.8 |
| 3.9 |
| 3.10 |
| 3.11 |
| 3 |
| 3.12 |
| 3.13 |
| 3.14 |
| 3.15 |
| 3.16 |
| 3.17 |
| 3.18 |
| 4 |
| 3.19 |
| 3.20 |
| 3.21 |
| 3.22 |
| 3.23 |
| 3.24 |
| 3.25 |
| 3.26 |
| 3.27 |
| 5 |
| 3.28 |
| 3.29 |
| 3.30 |
| 3.31 |
| 3.32 |
| 3.33 |
| 3.34 |
| 3.35 |
| 3.36 |
| 6 |
And it is hereby declared that the word “company” in this clause, except where used in reference to this Company, shall be deemed to include any person, partnership or other body of persons whether incorporated or not incorporated and whether domiciled in the State 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 anywise limited or restricted by reference to or inference from the terns of any other paragraph or the name of the Company.
| 4. |
| 5. |
| 6. |
| 7. |
| 7 |
COMPANIESACTS 1963 TO 2013ACT 2014
A PUBLIC COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
NEXVET BIOPHARMA PUBLIC LIMITED COMPANY
(Amended and restated by Special Resolution dated 17 November 2014)
PRELIMINARY
1. The regulations contained in Table A in the First Schedule to the 1963Act shall not apply to the Company.
| 1. |
| 1.1 | Sections 43, 77 to 81, 95(1), 96(2) to (11), 124, 125(3), 125(4), 126(3) to (8), 144(3), 144(4) 158(3), 158(4), 160 to 162, 164, 165 181(1), 182(2) to (5), 187, 188, 218(3) to (5), 229(1), 229(2), 230, 1090, 1092 and 1113 of theAct shall not apply to the Company. |
| 1.2 |
| “ | means the Companies Act | |
| “ | means the | |
| “Address” | Includes any number or address used for the purposes of communication by way of electronic mail or other electronic communication. | |
| “Adoption Date” | means the date of adoption of these Articles. | |
| “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 Directors from time to time to assist the Secretary. | |
| “Auditors” | means the persons for the time being performing the duties of auditors of the Company. | |
| “Board” | means the board of directors for the time being of the Company. |
| 8 |
| “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 it is given or on which it is to take effect. | |
| “Company” | means the | |
| “Court” | means the Irish High Court. | |
| “Directors” | means the directors for the time being of the Company. | |
| “dividend” | includes 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. | |
| “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. | |
| “Ordinary Resolution” | means an ordinary resolution of the Company’s Members within the meaning of section | |
| “paid-up” | means paid-up as to the nominal value and any premium payable in respect of the issue of any Shares and includes credited as paid-up. |
| 9 |
| “Redeemable Shares” | means redeemable shares in accordance with section | |
| “Register of Members” or “Register” | means the register of Members of the Company maintained by or on behalf of the Company, in accordance with the | |
| “registered office” | means the registered office for the time being of the Company. | |
| “Seal” | means the common seal of the Company and includes every duplicate seal, every official seal and every securities seal. | |
| “Secretary” | means the person appointed by the Board to perform any or all of the duties of secretary of the Company and includes a joint secretary, an Assistant Secretary and any person appointed by the Board to perform the duties of secretary of the Company. | |
| “Share” | means a share in the capital of the Company. | |
| “Special Resolution” | means a special resolution of the Company’s Members within the meaning of section |
| 1.3 |
| (a) | words importing the singular number include the plural number and vice-versa; |
| (b) | words importing the feminine gender include the masculine gender and vice-versa; |
| (c) | words importing persons include any company, partnership or other body of persons, whether corporate or not, any trust and any government, governmental body or agency or public authority, whether of Ireland or elsewhere; |
| (d) | “written” and “in writing” include all modes of representing or reproducing words in visible form, including electronic communication; |
| (e) | references to a company include any body corporate or other legal entity, whether incorporated or established in Ireland or elsewhere; |
| (f) | references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced from time to time; |
| (g) | 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; |
| 10 |
| (h) | reference to “officer” or “officers” in these Articles means any executive that has been designated by the Company as an “officer” and, for the avoidance of doubt, shall not have the meaning given to such term in the |
| (i) | headings are inserted for reference only and shall be ignored in construing these Articles; |
| (j) | references to US$, USD, $ or dollars shall mean United States dollars, the lawful currency of the United States of America and references to €, euro, or EUR shall mean the euro, the lawful currency of Ireland; and |
| (k) | save as otherwise expressly provided in these Articles, where a provision of these Articles covers substantially the same subject matter as an optional provision of the |
SHARE CAPITAL; ISSUE OF SHARES
| 2. |
| 3. |
| 4. |
| 5. |
| 5.1 |
| 11 |
| 5.2 |
| 5.3 |
| 6. |
| 7. |
ORDINARY SHARES
| 8. |
| 8.1 |
| 8.2 |
| 8.3 |
| 12 |
The rights attaching to the ordinary shares may be subject to the terms of issue of any series or class of preferred share allotted by the Directors from time to time in accordance with Article1211.
| 9. |
An ordinary share shall be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement, transaction or trade between the Company (including any agent or broker acting on behalf of the Company) and any person (who may or may not be a Member) pursuant to which the Company acquires or will acquire ordinary shares, or an interest in ordinary shares, from the relevant person. In these circumstances, the acquisition of such Shares by the Company, save where acquired for nil consideration in accordance with theCompanies ActsAct, shall constitute the redemption of a Redeemable Share in accordance withPart XIthe provisions of the1990 ActActs. A resolution of the Board shall be passed to deem any ordinary share a Redeemable Share (and no resolution of the Members, whether special or otherwise, shall be required).
| 10. |
PREFERRED SHARES
| 11. |
| 11.1 |
| (a) | redeemable at the option of the Company, or the Members, or both, with the manner of the redemption to be set by the Board, and redeemable at such time or times, including upon a fixed date, and at such price or prices; |
| (b) | entitled to receive dividends (which may be cumulative or non-cumulative) at such rates, on such conditions at such times and in respect of such dividend periods (the “Dividend Periods”), and payable in preference to, or in such relation to, the dividends payable on any other class or classes of Shares or any other series; |
| (c) | entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the Company; or |
| (d) | convertible into, or exchangeable for, Shares of any other class or classes of Shares, or of any other series of the same or any other class or classes of Shares, of the Company at such price or prices or at such rates of exchange and with such adjustments as the Directors determine, |
which rights and restrictions may be as stated in such resolution or resolutions of the Directors as determined by them in accordance with this Article1211. The Board may at any time before the allotment of any preferred share by further resolution in any way amend the designations, preferences, rights, qualifications, limitations or restrictions, or vary or revoke the designations of such preferred shares.
| 13 |
| 11.2 |
| 11.3 |
| 11.4 |
| 11.5 |
EURO DEFERRED SHARES
| 12. |
| 13. |
| 14 |
| 14. |
| 15. |
| 15.1 |
| 15.2 |
| 15.3 |
| 15.4 |
| 16. |
| 17. |
| 15 |
ISSUE OF WARRANTS
| 18. |
CERTIFICATES FOR SHARES
| 19. |
| 20. |
| 21. |
REGISTER OF MEMBERS
| 22. |
| 23. |
| 24. |
| 16 |
| 25. |
TRANSFER OF SHARES
| 26. |
| 27. |
| 27.1 |
| 27.2 |
| 27.3 |
| 17 |
| 27.4 |
| 28. |
| 28.1 |
| 28.2 |
| 28.3 |
| 28.4 |
| 28.5 |
| 28.6 |
| 28.7 |
| 18 |
| 29. |
| 30. |
| 31. |
REDEMPTION AND REPURCHASE OF SHARES
| 32. |
| 32.1 |
| 32.2 |
| 32.3 |
| 32.4 |
| 33. |
| 19 |
| 34. |
VARIATION OF RIGHTS OF SHARES
| 35. |
| 36. |
| 37. |
LIEN ON SHARES
| 38. |
| 39. |
| 40. |
| 20 |
| 41. |
| 42. |
| 42.1 |
| 42.2 |
| 42.3 |
| 42.4 |
| 42.5 | in every such case (except to the extent that the rights conferred upon holders of any class of Shares render the Company liable to make additional payments in respect of sums withheld on account of the foregoing): |
| 42.6 |
| 42.7 |
| 42.8 |
| 42.9 |
| 21 |
Subject to the rights conferred upon the holders of any class of Shares, nothing in this Article4142 will prejudice or affect any right or remedy which any law may confer or purport to confer on the Company. As between the Company and every such Member as referred to above (and, his executor, administrator and estate, wherever constituted), any right or remedy which such law shall confer or purport to confer on the Company shall be enforceable by the Company.
CALLS ON SHARES
| 43. |
| 44. |
| 45. |
| 46. |
| 47. |
| 48. |
| 49. |
| 50. |
| 22 |
FORFEITURE
| 51. |
| 52. |
| 53. |
| 54. |
| 55. |
| 56. |
| 23 |
| 57. |
| 58. |
| 59. |
NON-RECOGNITION OF TRUSTS
| 60. |
TRANSMISSION OF SHARES
| 61. |
| 62. |
| 63. |
| 24 |
| 64. |
| 65. |
AMENDMENT OF MEMORANDUM OF ASSOCIATION;
CHANGE OF LOCATION OF REGISTERED OFFICE; AND
ALTERATION OF CAPITAL
| 66. |
| 66.1 |
| 66.2 |
| 66.3 |
| 66.4 |
| 66.5 |
| 66.6 |
| 67. |
| 67.1 |
| 67.2 |
| 25 |
| 67.3 |
| 68. |
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
| 69. |
| 70. |
| 71. |
| 26 |
GENERAL MEETINGS
| 72. |
| 73. |
| 74. |
| 75. |
| 76. |
NOTICE OF GENERAL MEETINGS
| 77. |
| 78. |
| 27 |
| 79. |
| 80. |
| 81. |
| 82. |
PROCEEDINGS AT GENERAL MEETINGS
| 83. |
| 84. |
| 85. |
| 28 |
| 86. |
| 87. |
| 88. |
| 89. |
| 90. |
| 90.1 |
| (a) | it is proposed by or at the direction of the Board; or |
| (b) | it is proposed at the direction of the Court; or |
| (c) | it is proposed on the requisition in writing of such number of Members as is prescribed by, and is made in accordance with, section |
| (d) | it is proposed pursuant to, and in accordance with the procedures and requirements of, Articles |
| (e) | the Chairman of the meeting in his absolute discretion decides that the resolution may properly be regarded as within the scope of the meeting. |
| 90.2 |
| 29 |
| 90.3 |
| 91. |
| 92. |
| 93. |
| 94. |
| 95. |
| 96. |
| 97. |
| 30 |
NOMINATIONS OF DIRECTORS
| 98. |
| 99. |
| 31 |
| 100. |
| 101. |
VOTES OF MEMBERS
| 102. |
| 103. |
| 104. |
| 105. |
| 106. |
| 32 |
| 107. |
PROXIES AND CORPORATE REPRESENTATIVES
| 108. |
| 108.1 |
| 108.2 |
| 109. |
| 110. |
| 111. |
| 112. |
| 33 |
| 113. |
| 113.1 |
| 113.2 |
DIRECTORS
| 114. |
| 115. |
| 116. |
| 117. | A Director is expressly permitted (for the purposes of section 228(1)(d) of the Act) to use the Company’s property subject to such conditions as may be approved by the Board or such conditions as may have been approved pursuant to such authority as may be delegated by the Board in accordance with these Articles. |
| 34 |
DIRECTORS’ AND OFFICERS’ INTERESTS
| 118. |
| 119. |
| 120. |
| 121. |
| 122. |
| 122.1 |
| 122.2 |
| 35 |
| 123. |
| 124. |
| 124.1 |
| 124.2 |
| 124.3 |
| 125. | Nothing in section 228(1)(e) of the Act shall restrict a director from entering into any commitment which has been approved by the Board or has been approved pursuant to such authority as may be delegated by the Board in accordance with these Articles. It shall be the duty of each director to obtain the prior approval of the Board, before entering into any commitment permitted by sections 228(1)(e)(ii) and 228(2) of the Act. |
POWERS AND DUTIES OF DIRECTORS
| 126. |
| 127. |
| 128. |
| 129. |
| 36 |
| 130. |
| 131. |
| 132. |
| 133. |
| 134. |
MINUTES
| 135. |
| 37 |
DELEGATION OF THE BOARD’S POWERS
| 136. |
| 137. |
| 138. |
EXECUTIVE OFFICERS
| 139. |
PROCEEDINGS OF DIRECTORS
| 140. |
| 141. |
| 142. |
| 38 |
| 143. |
| 144. |
| 145. |
| 146. |
| 147. |
| 148. |
RESIGNATION AND DISQUALIFICATION OF DIRECTORS
| 149. |
| 39 |
| 149.1 |
| 149.2 |
| 149.3 |
| 150. |
APPOINTMENT OF DIRECTORS
| 151. |
| 40 |
| 152. |
| 153. |
| 154. |
| 154.1 |
| 154.2 |
| 154.3 |
| 154.4 |
| 154.5 |
SECRETARY
| 155. |
| 156. |
| 41 |
| 157. |
SEAL
| 158. |
| 159. |
DIVIDENDS, DISTRIBUTIONS AND RESERVES
| 160. |
| 161. |
| 162. |
| 163. |
| 42 |
| 164. |
| 165. |
| 166. |
| 167. |
| 168. |
| 169. |
CAPITALISATION
| 170. |
| 43 |
| 170.1 |
| 170.2 |
| 170.3 |
| 170.4 |
| 170.5 |
| 170.6 |
ACCOUNTS
| 171. |
| 171.1 |
| 171.2 |
| 171.3 |
| 171.4 |
| 171.5 |
| 44 |
| 172. |
| 173. |
| 174. |
| 175. |
| 176. |
AUDIT
| 177. |
| 45 |
NOTICES
| 178. |
| 178.1 |
| (a) | by handing same to him or his authorised agent; |
| (b) | by leaving the same at his registered address; |
| (c) | by sending the same by the post in a pre-paid cover addressed to him at his registered address; or |
| (d) | by sending, with the consent of the Member to the extent required by law and applicable listing rules (including those relating to NASDAQ), the same by means of electronic mail or other means of electronic communication approved by the Directors, to the Address of the Member notified to the Company by the Member for such purpose (or if not so notified, then to the Address of the Member last known to the Company). For the avoidance of doubt, a notice or document may be sent by electronic means to the maximum extent permitted by any default provisions of the |
| 178.2 |
| 178.3 |
| 178.4 |
| 178.5 |
| 178.6 |
| 46 |
| 178.7 |
| 178.8 |
| 178.9 |
| 179. |
| 180. |
| 180.1 |
| 180.2 |
| 181. |
| 47 |
| 182. |
UNTRACED HOLDERS
| 183. |
180.
| 183.1 |
| (a) | for a period of six years (not less than three dividends having been declared and paid) no cheque or warrant sent by the Company through the post in a prepaid letter addressed to the Member or to the person entitled by transmission to the Share or stock at his address on the Register or other the last known address given by the Member or the person entitled by transmission to which cheques and warrants are to be sent has been cashed and no communication has been received by the Company from the Member or the person entitled by transmission; and |
| (b) | at the expiration of the said period of six years the Company has given notice by advertisement in a leading Dublin newspaper and a newspaper circulating in the area in which the address referred to in paragraph (a) of this Article is located of its intention to sell such Share or stock; and |
| (c) | the Company has not during the further period of three months after the date of the advertisement and prior to the exercise of the power of sale received any communication from the Member or person entitled by transmission. |
| 183.2 |
DESTRUCTION OF DOCUMENTS
| 184. |
| 184.1 |
| 184.2 |
| 48 |
| 184.3 |
| 184.4 |
| (a) | the foregoing provisions of this Article shall apply only to the destruction of a document in good faith and without express notice to the Company that the preservation of such document was relevant to a claim; |
| (b) | nothing contained in this Article shall be construed as imposing upon the Company any liability in respect of the destruction of any such document earlier than as aforesaid or in any case where the conditions of proviso (a) above are not fulfilled; and |
| (c) | references in this Article to the destruction of any document include references to its disposal in any manner. |
WINDING UP
| 185. |
| 185.1 |
| 185.2 |
| 186. |
| 49 |
INDEMNITY
| 187. |
| 187.1 |
| 187.2 |
| 187.3 |
| 187.4 |
| 50 |
| 187.5 |
| 187.6 |
| 187.7 |
FINANCIAL YEAR
| 188. |
SHAREHOLDER RIGHTS PLAN
| 189. |
| 190. |
| 51 |
| 191. |
| 191.1 |
| 191.2 |
| 192. |
| 52 |
