As filed
with the Securities and Exchange Commission on October 21, 2008
Registration
No.
333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ELAN
CORPORATION, plc
(Exact
name of registrant as specified in its charter)
|
Ireland
|
Not
Applicable
|
|
(State
or other jurisdiction of
|
(I.R.S.
Employer Identification No.)
|
|
incorporation
or organization)
|
Treasury
Building
Lower
Grand Canal Street
Dublin
2, Ireland
(Address
of principal executive offices)
__________________________________________
Elan
Corporation, plc 2006 Long Term Incentive Plan (2008 Amendment and
Restatement)
(Full
title of the plan)
___________________________________________
Cahill
Gordon & Reindel LLP
80
Pine Street
New
York, New York 10005-1702
Attention: Christopher
T. Cox, Esq.
(212)
701-3000
(Name
and address, including zip code, and telephone number,
including
area code, of agent for service)
Please
send copies of all communications to:
Shane M.
Cooke
Executive
Vice President and Chief Financial Officer
Elan
Corporation, plc
Treasury
Building
Lower
Grand Canal Street
Dublin 2,
Ireland
(353)
1-709-4000
CALCULATION
OF REGISTRATION FEE
|
Title
of
securities
to be registered
|
Amount
to be
registered
|
Proposed
maximum
offering
price
per
share
|
Proposed
maximum
aggregate
offering
price
|
Amount
of
registration
fee
|
|
Ordinary
Shares, par value 5
Euro
cents each (1)
|
18,000,000(2)
|
$8.62(3)
|
$155,160,000(3)
|
$6097.79
|
|
(1)
|
American
Depositary Shares (“Elan ADSs”), evidenced by American Depositary
Receipts, issuable upon deposit of Ordinary Shares, par value 5 Euro cents
each (the “Ordinary Shares”), of Elan Corporation, plc (“Elan”) are
registered on a separate registration statement on Form
F-6. Each Elan ADS represents one Ordinary
Share.
|
|
(2)
|
The
number of Ordinary Shares stated above consists of the aggregate number of
additional Ordinary Shares not previously registered which may be issued
under the Elan Corporation plc 2006 Long Term Incentive Plan (2008
Amendment and Restatement). In addition, pursuant to
Rule 416 under the Securities Act of 1933, as amended, the amount
being registered also includes such indeterminate number of additional
Ordinary Shares as may become issuable under the anti-dilution provisions
of Elan’s 2006 Long Term Incentive Plan (2008 Amendment and
Restatement).
|
|
(3)
|
Estimated
solely for the purpose of calculating the registration fee, computed
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, on
the basis of the average of the high and low sales prices of an Elan ADS,
as reported in the New York Stock Exchange - Composite Transactions System
on October 16, 2008.
|
EXPLANATORY
STATEMENT
Elan
Corporation, plc (“Elan” or the “Registrant”) has prepared this Registration
Statement on Form S-8 in accordance with the requirements of Form S-8 under the
Securities Act of 1933, as amended, (the “Securities Act”), to register an
additional 18,000,000 Ordinary Shares, par value 5 Euro cents each (the
“Ordinary Shares”), of the Registrant authorized for issuance under the Elan
Corporation, plc 2006 Long Term Incentive Plan (2008 Amendment and Restatement)
(the “LTIP”). A Registration Statement on Form S-8 (File No.
333-135185) containing the original LTIP was filed with the Securities and
Exchange Commission on June 21, 2006, covering the registration of 10,000,000
Ordinary Shares authorized for issuance under the LTIP. Pursuant to
General Instruction E of Form S-8, this Registration Statement is being filed to
register an additional 18,000,000 Ordinary Shares under the
LTIP. Pursuant to such Instruction E, the contents of the
Registration Statement on Form S-8 (File No. 333-135185) are incorporated herein
by reference. The current registration of 18,000,000 Ordinary Shares
will increase the number of shares registered under the LTIP from 10,000,000
Ordinary Shares to 28,000,000 Ordinary Shares.
I-1
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM
8. EXHIBITS.
The
following is a complete list of exhibits filed or incorporated by reference as a
part of this Registration Statement:
|
Exhibit No.
|
Description
|
|
4.1
|
Memorandum
and Articles of Association of Elan. (incorporated by reference to Exhibit
4.1 of the Registration Statement on Form S-8 of Elan Corporation, plc
(SEC File No. 333-135185) filed with the Commission on June 21,
2006).
|
|
4.2
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Amended
and Restated Deposit Agreement, dated as of May 17, 1996 as further
amended and restated as of November 12, 2003, among Elan, The Bank of
New York, as Depositary, and the holders from time to time of American
Depositary Receipts issued thereunder (incorporated by reference to
Exhibit 3(a) of the Registration Statement on Form F-6 of Elan,
Registration No. 333-110428, filed with the Commission on
November 12, 2003).
|
|
4.3
|
Specimen
of American Depositary Receipt, evidencing American Depositary Shares,
representing deposited Ordinary Shares (included in Exhibit
4.2).
|
|
*4.4
|
Elan
Corporation, plc 2006 Long Term Incentive Plan (2008 Amendment and
Restatement).
|
|
*5.1
|
Opinion
of A&L Goodbody Solicitors with respect to the legality of the
Ordinary Shares being registered hereby.
|
|
*23.1
|
Consent
of A&L Goodbody (included in Exhibit 5.1).
|
|
*23.2
|
Consent
of KPMG, Independent Registered Public Accounting Firm.
|
|
*24
|
Powers
of Attorney (included on the signature pages of this Registration
Statement).
|
* Filed
herewith.
II-1
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dublin, Ireland, on the 21st day of October,
2008.
|
ELAN
CORPORATION, PLC
|
|
By: /s/ Shane M.
Cooke
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Name: Shane M. Cooke
Title: Executive Vice President
|
|
and Chief Financial Officer
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II-2
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below hereby
constitutes and appoints Shane M. Cooke and William F. Daniel, and each of
them, his or her true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him or her and in his or her name,
place, and stead, in any and all capacities, to sign the Registration Statement
on Form S-8 under the Securities Act of 1933, as amended, to sign any and all
pre- or post-effective amendments to the Registration Statement on Form S-8, and
to file the same with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
|
Signature
|
Title
|
Date
|
|
/s/ G. Kelly
Martin
(G. Kelly Martin) |
President
and Chief Executive Officer and
Director (Principal Executive Officer) |
October
21, 2008
|
|
/s/ Shane
M. Cooke
(Shane M. Cooke) |
Chief
Financial Officer, Executive Vice
President and Director (Principal Financial Officer) |
October
21, 2008
|
|
s/ Nigel
Clerkin
(Nigel Clerkin) |
Senior
Vice President, Finance and Group
Controller (Principal Accounting Officer) |
October
21, 2008
|
|
/s/ Kyran
McLaughlin
(Kyran McLaughlin) |
Chairman
of the Board
|
October
21, 2008
|
|
/s/ Floyd Bloom,
M.D.
(Floyd Bloom, M.D.) |
Director
|
October
21, 2008
|
|
/s/ Lars
Ekman, M.D., Ph.D.
(Lars Ekman, M.D., Ph.D.) |
Director
|
October
21, 2008
|
II-3
|
/s/ Jonas
Frick
(Jonas Frick) |
Director
|
October
21, 2008
|
|
/s/ Ann
Maynard Gray
(Ann Maynard Gray) |
Director
|
October
21, 2008
|
|
/s/ Gary
Kennedy
(Gary Kennedy) |
Director
|
October
21, 2008
|
|
/s/ Patrick
Kennedy
(Patrick
Kennedy)
|
Director
|
October
21, 2008
|
|
/s/ Giles
Kerr
(Giles Kerr) |
Director
|
October
21, 2008
|
|
/s/
Kieran McGowan
(Kieran McGowan) |
Director
|
October
21, 2008
|
|
/s/ Donal
O’Connor
(Donal O’Connor) |
Director
|
October
21, 2008
|
|
/s/
William R. Rohn
(William R. Rohn) |
Director
|
October
21, 2008
|
|
/s/ Dennis J. Selkoe,
M.D.
(Dennis J. Selkoe, M.D.) |
Director
|
October
21, 2008
|
|
/s/
Jeffrey L. Shames
(Jeffrey L. Shames) |
Director
|
October
21, 2008
|
II-4
AUTHORIZED
REPRESENTATIVE
|
Elan
Pharmaceuticals, Inc.
|
||
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By: /s/ G. Kelly
Martin
(G. Kelly Martin)
|
President
and Chief Executive Officer
|
October
21, 2008
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Exhibit
Index
|
Exhibit
No.
|
Description
|
|
4.1
|
Memorandum
and Articles of Association of Elan. (incorporated by reference to Exhibit
4.1 of the Registration Statement on Form S-8 of Elan Corporation, plc
(SEC File No. 333-135185) filed with the Commission on June 21,
2006).
|
|
4.2
|
Amended
and Restated Deposit Agreement, dated as of May 17, 1996 as further
amended and restated as of November 12, 2003, among Elan, The Bank of
New York, as Depositary, and the holders from time to time of American
Depositary Receipts issued thereunder (incorporated by reference to
Exhibit 3(a) of the Registration Statement on Form F-6 of Elan,
Registration No. 333-110428, filed with the Commission on
November 12, 2003).
|
|
4.3
|
Specimen
of American Depositary Receipt, evidencing American Depositary Shares,
representing deposited Ordinary Shares (included in Exhibit
4.2).
|
|
*4.4
|
Elan
Corporation, plc 2006 Long Term Incentive Plan (2008 Amendment and
Restatement).
|
|
*5.1
|
Opinion
of A&L Goodbody Solicitors with respect to the legality of the
Ordinary Shares being registered hereby.
|
|
*23.1
|
Consent
of A&L Goodbody (included in Exhibit 5.1).
|
|
*23.2
|
Consent
of KPMG, Independent Registered Public Accounting Firm.
|
|
*24
|
Powers
of Attorney (included on the signature pages of this Registration
Statement).
|
* Filed
herewith.
II-5
EXHIBIT
4.4
ELAN
CORPORATION, PLC
2006
LONG TERM INCENTIVE PLAN
(2008
AMENDMENT AND RESTATEMENT)
The
purposes of the 2006 Long Term Incentive Plan are to advance the interests of
Elan Corporation, plc and its shareholders by providing a means to attract,
retain, and motivate employees, consultants and directors of Elan Corporation,
plc, its subsidiaries and affiliates, to provide for competitive compensation
opportunities, to encourage long term service, to recognize individual
contributions and reward achievement of performance goals, and to promote the
creation of long term value for shareholders by aligning the interests of such
persons with those of shareholders. The Plan was established pursuant to a
resolution of the Board on March 28, 2006, approved by the shareholders at the
annual general meeting held on May 25, 2006, it has been amended and restated by
resolution of the Board on March 28, 2008 and approved by shareholders at the
annual general meeting held on May 22, 2008.
1.
Definitions.
For
purposes of the Plan, the following terms shall be defined as set forth
below:
(a) “Act”
means the Companies Act 1963 as amended from time to time. References to
any provision of the Act shall be deemed to include successor provisions thereto
and regulations thereunder.
(b) “Affiliate”
means any entity other than the Company and its Subsidiaries that is
designated by the Board or the Committee as a participating employer under the
Plan; provided, however, that the Company directly or indirectly owns at least
20% of the combined voting power of all classes of stock of such entity or at
least 20% of the ownership interests in such entity.
(c) “Award”
means any Option, SAR, Restricted Share, Restricted Share Unit,
Performance Share, Performance Unit, Dividend Equivalent, or Other Share-Based
Award granted to an Eligible Person under the Plan.
(d) “Award
Agreement” means any written agreement, contract, or other instrument or
document evidencing an Award.
(e) “Beneficiary”
means the person, persons, trust or trusts which have been designated by
an Eligible Person in his or her most recent written beneficiary designation
filed with the Company to receive the benefits specified under this Plan upon
the death of the Eligible Person, or, if there is no designated Beneficiary or
surviving designated Beneficiary, then the person, persons, trust or trusts
entitled by will or the laws of descent and distribution to receive such
benefits.
(f) “Board”
means the Board of Directors of the Company.
(g) “Change in
Control” means:
(i) The
consummation of a merger or consolidation of the Company with or into another
entity or any other corporate reorganization if more than 50% of the combined
voting power of the continuing or surviving entity’s issued shares or securities
outstanding immediately after such merger, consolidation or other reorganization
is owned by persons who were not shareholders of the Company immediately prior
to such merger,
consolidation
or other reorganization;
(ii) The
sale, transfer or other disposition of all or substantially all of the Company’s
assets;
(iii)
Individuals who on the Effective Date of this Plan constitute the Board (the
“Incumbent Directors”) cease for any reason, including, without limitation, as a
result of a tender offer, proxy contest, merger or similar transaction, to
constitute at least a majority of the Board; provided, however, that any
individual who becomes a director of the Company subsequent to the Effective
Date of this Plan shall be considered an Incumbent Director if such person’s
election or nomination for election was approved by a vote of at least a
majority of the Incumbent Directors; but, provided further that any such person
whose initial assumption of office is in connection with an actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the
Board, including by reason of agreement intended to avoid or settle any such
actual or threatened contest or solicitation, shall not be considered an
Incumbent Director; or
(iv) A
transaction as a result of which a person or company obtains Control of the
Company in pursuance of a compromise or arrangement sanctioned by the court
under Section 201 of the Act or becomes bound or entitled to acquire Shares in
the Company under Section 204 of the Act; or
(v) Any
transaction as a result of which any person becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing at least 50% of the total voting power
represented by the Company’s then outstanding voting securities (e.g., issued
shares). For purposes of this subsection (v), the term “person” shall have the
same meaning as when used in sections 13(d) and 14(d) of the Exchange Act but
shall exclude (i) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or of any Subsidiary and (ii) a company
owned directly or indirectly by the shareholders of the Company in substantially
the same proportions as their ownership of the Shares of the
Company.
(vi)
Notwithstanding the foregoing, in the case of an Award that constitutes deferred
compensation subject to section 409A of the Code, the definition of “Change in
Control” set forth above shall not apply, and the term “Change in Control” shall
instead mean a “change in the ownership or effective control” of the Company or
“in the ownership of a substantial portion of the assets” of the Company within
the meaning of section 409A(a)(2)(A)(v) of the Code and the regulations and
guidance issued thereunder, but only to the extent this substitute definition is
necessary in order for the Award to comply with the requirements prescribed by
section 409A of the Code.
(h) “Code”
means the Internal Revenue Code of 1986, as amended from time to time.
References to any provision of the Code shall be deemed to include successor
provisions thereto and regulations thereunder.
(i) “Committee”
means the Leadership Development and Compensation Committee of the Board,
or such other Board committee (which may include the entire Board) as may be
designated by the Board to administer the Plan.
(j) “Company”
means Elan Corporation, plc, a corporation organized under the laws of
Ireland, or any successor corporation.
(k) “Control”
means the ownership directly or indirectly of shares in a company
carrying more than 50% of the total voting power represented by that company’s
issued share capital.
(l) “Director”
means a member of the Board who is not an employee of the Company, a
Subsidiary or an Affiliate.
(m) “Dividend
Equivalent” means a right, granted under Section 4(g), to receive cash,
Shares, or other property equal in value to dividends paid with respect to a
specified number of Shares. Dividend Equivalents may be awarded on a
free-standing basis or in connection with another Award, and may be paid
currently or on a deferred basis.
(n) “Effective
Date” has the meaning set forth in Section 9(l) below.
(o) “Eligible
Person” means (i) an employee or consultant of the Company, a Subsidiary
or an Affiliate, including any director who is an employee, or (ii) a Director.
Notwithstanding any provisions of this Plan to the
-2-
contrary,
an Award may be granted to an employee, consultant or Director, in connection
with his or her hiring or retention prior to the date the employee, consultant
or Director first performs services for the Company, a Subsidiary or an
Affiliate; provided, however, that any such Award shall not become vested or
exercisable prior to the date the employee, consultant or Director first
performs such services.
(p) “Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to
time. References to any provision of the Exchange Act shall be deemed to include
successor provisions thereto and regulations thereunder.
(q) “Fair
Market Value” means, with respect to Shares or other property, the fair
market value of such Shares or other property determined by such methods or
procedures as shall be established from time to time by the Committee. If the
Shares are listed on any established stock exchange or a national market system,
unless otherwise determined by the Committee in good faith, the Fair Market
Value of Shares shall mean the closing price per Share on the date in question
(or, if the Shares were not traded on that day, the next preceding day that the
Shares were traded) or, alternatively, the average of the closing price per
Share for a period, not to exceed 30 days, preceding the date in question on the
principal exchange or market system on which the Shares are traded, as such
prices are officially quoted on such exchange.
(r) “ISO”
means any Option intended to be and designated as an incentive stock
option within the meaning of Section 422 of the Code.
(s) “NQSO”
means any Option that is not an ISO.
(t) “Option”
means a right, granted under Section 4(b), to purchase
Shares.
(u) “Other
Share-Based Award” means a right, granted under Section 4(h), that
relates to or is valued by reference to Shares.
(v) “Participant”
means an Eligible Person who has been granted an Award under the
Plan.
(w) “Performance
Share” means a performance share granted under Section 5(f).
(x) “Performance
Unit” means a performance unit granted under Section 4(f).
(y) “Plan”
means this 2006 Long Term Incentive Plan.
(z) “Restricted
Shares” means an Award of Shares under Section 4(d) that may be subject
to certain restrictions and to a risk of forfeiture.
(aa)
“Restricted
Share Unit” means a unit representing the Company’s obligation to deliver
or issue one Share for each such unit, granted under Section 4(e), or the cash
equivalent, at the end of a specified deferral period.
(bb)
“Rule
16b-3” means Rule 16b-3, as from time to time in effect and applicable to
the Plan and Participants, promulgated by the Securities and Exchange Commission
under Section 16 of the Exchange Act.
(cc)
“SAR”
or “Share Appreciation Right” means the right, granted under Section
4(c), to be paid an amount measured by the difference between the exercise price
of the right and the Fair Market Value of Shares on the date of exercise of the
right, with payment to be made in cash or Shares as specified in the Award or
determined by the Committee.
(dd)
“Share”
means one ordinary share of 5 Euro cents in the capital of the Company as
represented by one American Depositary Share and as evidenced by one American
Depositary Receipt.
-3-
(ee)
“Subsidiary”
means any company which is, for the time being, a subsidiary of the
Company within the meaning of Section 155 of the Act. For the avoidance of
doubt, and provided it is not in conflict with the Act, this shall include any
corporation (other than the Company) in an unbroken chain of corporations
beginning with the Company if each of the corporations (other than the last
corporation in the unbroken chain) owns shares possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in the chain.
(ff)
“Termination
of Service” means, unless otherwise defined in an applicable Award
Agreement, that a Participant is no longer employed by, providing consulting
services to nor a director of the Company, its Subsidiaries and its Affiliates,
as the case may be. A Participant employed by or providing service to a
Subsidiary of the Company or one of its Affiliates shall also be deemed to incur
a Termination of Service if the Subsidiary of the Company or Affiliate ceases to
be such a Subsidiary or an Affiliate, as the case may be, and the Participant
does not immediately thereafter become an employee or director of, or a
consultant to, the Company, another Subsidiary of the Company or an Affiliate.
Temporary absences from employment or service because of illness, vacation or
leave of absence and transfers among the Company and its Subsidiaries and
Affiliates shall not be considered a Termination of Service.
2.
Administration.
(a) Authority
of the Committee. The Plan shall be administered by the Committee, and
the Committee shall have full and final authority to take the following actions,
in each case subject to and consistent with the provisions of the
Plan:
(i) to
select Eligible Persons to whom Awards may be granted;
(ii) to
designate Affiliates;
(iii) to
determine the type or types of Awards to be granted to each Eligible
Person;
(iv) to
determine the type and number of Awards to be granted, the number of Shares to
which an Award may relate, the terms and conditions of any Award granted under
the Plan (including, but not limited to, any exercise price, grant price, or
purchase price, any restriction or condition, any schedule for lapse of
restrictions or conditions relating to transferability or forfeiture,
exercisability, or settlement of an Award, and waiver or accelerations thereof,
and waivers of performance conditions relating to an Award, based in each case
on such considerations as the Committee shall determine), and all other matters
to be determined in connection with an Award;
(v) to
determine whether, to what extent, and under what circumstances an Award may be
settled, or the exercise price of an Award may be paid, in cash, Shares or other
Awards, or an Award may be canceled, forfeited, exchanged, or
surrendered;
(vi) to
determine whether, to what extent, and under what circumstances cash, Shares,
other Awards, or other property payable with respect to an Award will be
deferred either automatically, at the election of the Committee, or at the
election of the Eligible Person;
(vii) to
prescribe the form of each Award Agreement, which need not be identical for each
Eligible Person;
(viii) to
adopt, amend, suspend, waive, and rescind such rules and regulations and appoint
such agents as the Committee may deem necessary or advisable to administer the
Plan;
(ix) to
correct any defect or supply any omission or reconcile any inconsistency in the
Plan and to construe and interpret the Plan and any Award, rules and
regulations, Award Agreement, or other instrument thereunder;
-4-
(x) to
accelerate the exercisability or vesting of all or any portion of any Award
(provided that, except in the event of vesting due to a Change in Control or
Termination of Service, no Award shall vest in full until at least the second
anniversary of the grant date of such Award) or to extend the period during
which an Award is exercisable;
(xi) to
determine whether uncertificated Shares may be used in satisfying Awards and
otherwise in connection with the Plan;
and
(xii) to
make all other decisions and determinations as may be required under the terms
of the Plan or as the Committee may deem necessary or advisable for the
administration of the Plan.
(b) Manner
of Exercise of Committee Authority. The Committee shall have sole
discretion in exercising its authority under the Plan. Any action of the
Committee with respect to the Plan shall be final, conclusive, and binding on
all persons, including the Company, Subsidiaries, Affiliates, Eligible Persons,
any person claiming any rights under the Plan from or through any Eligible
Person, and shareholders. By accepting an Award under the Plan, each Eligible
Person accepts the authority and discretion of the Committee as set forth in,
and exercised in accordance with, this Plan. The express grant of any specific
power to the Committee, and the taking of any action by the Committee, shall not
be construed as limiting any power or authority of the Committee. The Committee
may delegate to other members of the Board or officers or managers of the
Company or any Subsidiary or Affiliate the authority, subject to such terms as
the Committee shall determine, to perform administrative functions and, with
respect to Awards granted to persons not subject to Section 16 of the Exchange
Act, to perform such other functions as the Committee may determine, to the
extent permitted under Rule 16b-3 (if applicable) and applicable
law.
(c) Limitation
of Liability. Each member of the Committee shall be entitled to rely or
act upon, in good faith, any report or other information furnished to him or her
by any officer or other employee of the Company or any Subsidiary or Affiliate,
the Company’s independent public accountants, or other professional retained by
the Company to assist in the administration of the Plan. No member of the
Committee, and no officer or employee of the Company acting on behalf of the
Committee, shall be personally liable for any action, determination, or
interpretation taken or made in good faith with respect to the Plan, and all
members of the Committee and any officer or employee of the Company acting on
their behalf shall, to the extent permitted by law, be fully indemnified and
protected by the Company with respect to any such action, determination, or
interpretation.
(d) No
Option or SAR Repricing Without Shareholder Approval. Except as provided
in the first sentence of Section 3(c) relating to certain antidilution
adjustments, unless the approval of shareholders of the Company is obtained,
Options and SARs issued under the Plan shall not be amended to lower their
exercise price and Options and SARs issued under the Plan will not be exchanged
for other Options or SARs with lower exercise prices.
3.
Shares Subject to the Plan.
(a)
Subject to adjustment as provided in Section 3(c), the total number of Shares
originally reserved for issuance in connection with Awards under the Plan was
10,000,000. The Plan was amended and restated by the Board on March 28, 2008 to
increase the number of Shares available for issuance under this Plan by
18,000,000 to a total of 28,000,000 shares subject to approval by the company’s
shareholders at the Annual General Meeting to be held on May 22, 2008. No Award
may be granted if the number of Shares to which such Award relates, when added
to the number of Shares previously issued under the Plan, exceeds the number of
Shares reserved under the preceding sentence. If any Awards are forfeited,
canceled, terminated, exchanged, surrendered or reduced to satisfy the minimum
withholding obligations under Section 9(c), such Award is settled in cash or
otherwise terminates without a distribution of Shares to the Participant, any
Shares counted against the number of Shares reserved and available under the
Plan with respect to such Award shall, to the extent of any such forfeiture,
settlement, termination, cancellation, exchange or surrender, again be available
for Awards under the Plan. Upon the exercise of any Award granted in tandem with any other Awards,
such related Awards shall be canceled to the extent of the number of Shares as
to which the Award is exercised.
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(b) All
Awards under the Plan, other than Dividend Equivalents, shall be expressed in
Shares of stock. The maximum aggregate number of Shares with respect to which
all Awards, other than Dividend Equivalents, may be made under the Plan to any
individual during any calendar year shall be 1,000,000 Shares, subject to
adjustment as described below. A Participant may not accrue Dividend Equivalents
during any calendar year in excess of $1,000,000. The individual limits
described in this subsection (b) shall apply without regard to whether the
Awards are to be paid in Shares of stock or in cash. All cash payments (other
than Dividend Equivalents) shall equal the Fair Market Value of the Shares of
stock to which the cash payment relates.
(c) In
the event that the Committee shall determine that any dividend in Shares,
recapitalization, Share split, reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, share exchange, extraordinary
distribution, or other similar corporate transaction or event, affects the
Shares such that an adjustment is appropriate in order to prevent dilution or
enlargement of the rights of the Participants under the Plan, then the Committee
shall make such equitable changes or adjustments as it deems appropriate and, in
such manner as it may deem equitable, (i) adjust any or all of (x) the number
and kind of shares which may thereafter be issued under the Plan, (y) the number
and kind of shares, other securities or other consideration issued or issuable
in respect of outstanding Awards, and (z) the exercise price, grant price, or
purchase price relating to any Award or (ii) provide for a distribution of cash
or property in respect of any Award; provided, however, in each case that, with
respect to ISOs, such adjustment shall be made in accordance with Section 424(a)
of the Code, unless the Committee determines otherwise; provided further,
however, that no adjustment shall be made pursuant to this Section 3 that causes
any Award to be treated as deferred compensation pursuant to Section 409A of the
Code. In addition, the Committee is authorized to make adjustments in the terms
and conditions of, and the criteria and performance objectives, if any, included
in, Awards in recognition of unusual or non-recurring events (including, without
limitation, events described in the preceding sentence) affecting the Company or
any Subsidiary or Affiliate or the financial statements of the Company or any
Subsidiary or Affiliate, or in response to changes in applicable laws,
regulations, or accounting principles.
(d) Any
Shares distributed pursuant to an Award may consist, in whole or in part, of
authorized and unissued Shares or treasury Shares including Shares acquired by
purchase in the open market or in private transactions.
4.
Specific Terms of Awards.
(a) General.
Awards may be granted on the terms and conditions set forth in this
Section 4. In addition, the Committee may impose on any Award or the exercise
thereof, at the date of grant or thereafter (subject to Section 9(d)), such
additional terms and conditions, not inconsistent with the provisions of the
Plan, as the Committee shall determine, including terms regarding forfeiture of
Awards or continued exercisability of Awards in the event of Termination of
Service by the Eligible Person.
(b) Options.
The Committee is authorized to grant Options, which may be NQSOs or ISOs,
to Eligible Persons on the following terms and conditions:
(i) Exercise
Price. The exercise price per Share purchasable under an Option shall be
determined by the Committee; provided, however, that the exercise price per
Share shall not be less than the Fair Market Value per Share on the date of
grant.
(ii)
Option
Term. The term of each Option shall be determined by the Committee;
provided, however, that such term shall not be longer than ten years from the
date of grant of the Option.
(iii)
Time
and Method of Exercise. The Committee shall determine at the date of
grant or thereafter the time or times at which an Option may be exercised in
whole or in part (including, without limitation, upon achievement of performance
criteria if deemed appropriate by the Committee), the methods by which such
exercise price may be paid or deemed to be
paid (including, without limitation, broker-assisted exercise arrangements), the
form of such payment (cash or Shares), and the methods by which Shares will be
delivered or deemed to be delivered to Eligible Persons.
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(iv)
Early
Exercise. The Committee may provide at the time of grant or any time
thereafter, in its sole discretion, that any Option shall be exercisable with
respect to Shares that otherwise would not then be exercisable, provided that,
in connection with such exercise, the Participant enters into a form of
Restricted Share agreement approved by the Committee with respect to the Shares
received on exercise.
(v) ISOs.
The terms of any ISO granted under the Plan shall comply in all respects
with the provisions of Section 422 of the Code, including but not limited to the
requirement that the ISO shall be granted within ten years from the earlier of
the date of adoption or shareholder approval of the Plan. ISOs may only be
granted to employees of the Company or a Subsidiary.
(c) SARs.
The Committee is authorized to grant SARs (Share Appreciation Rights) to
Eligible Persons on the following terms and conditions:
(i) Right
to Payment. A SAR shall confer on the Eligible Person to whom it is
granted a right to receive with respect to each Share subject thereto, upon
exercise thereof, the excess of (1) the Fair Market Value of one Share on the
date of exercise over (2) the exercise price per Share of the SAR, as determined
by the Committee as of the date of grant of the SAR (which shall not be less
than the Fair Market Value per Share on the date of grant).
(ii)
Other
Terms. The Committee shall determine, at the time of grant, the time or
times at which a SAR may be exercised in whole or in part (which shall not be
more than ten years after the date of grant of the SAR), the method of exercise,
method of settlement, form of consideration payable in settlement (whether paid
in the form of cash, in Shares of stock or a combination of the two), method by
which Shares will be delivered or deemed to be delivered to Eligible Persons,
whether or not a SAR shall be in tandem with any other Award, and any other
terms and conditions of any SAR. Unless the Committee determines otherwise, a
SAR (1) granted in tandem with an NQSO may be granted at the time of grant of
the related NQSO or at any time thereafter and (2) granted in tandem with an ISO
may only be granted at the time of grant of the related ISO.
(d) Restricted
Shares. The Committee is authorized to grant Restricted Shares to
Eligible Persons on the following terms and
conditions:
(i) Issuance
and Restrictions. Restricted Shares shall be subject to such restrictions
on transferability and other restrictions, if any, as the Committee may impose
at the date of grant or thereafter, which restrictions may lapse separately or
in combination at such times, under such circumstances (including, without
limitation, upon achievement of performance criteria if deemed appropriate by
the Committee), in such installments, or otherwise, as the Committee may
determine. Except to the extent restricted under the Award Agreement relating to
the Restricted Shares, an Eligible Person granted Restricted Shares shall have
all of the rights of a shareholder including, without limitation, the right to
vote Restricted Shares and the right to receive dividends thereon.
(ii)
Forfeiture.
Except as otherwise determined by the Committee, at the date of grant or
thereafter, upon Termination of Service during the applicable restriction
period, Restricted Shares and any accrued but unpaid dividends or Dividend
Equivalents that are at that time subject to restrictions shall be forfeited;
provided, however, that the Committee may provide, by rule or regulation or in
any Award Agreement, or may determine in any individual case, that restrictions
or forfeiture conditions relating to Restricted Shares will be waived in whole
or in part in the event of Termination of Service resulting from specified
causes, and the Committee may in other cases waive in whole or in part the
forfeiture of Restricted Shares.
(iii)
Certificates
for Shares. Restricted Shares granted under the Plan may be evidenced in
such manner as the Committee shall determine. If certificates representing
Restricted Shares are registered in the name of the Participant, such
certificates shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted Shares, and, unless
otherwise determined by the Committee, the Company shall retain physical possession of the
certificate and the Participant shall deliver a stock power to the Company,
endorsed in blank, relating to the Restricted Shares.
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(iv)
Dividends.
Dividends paid on Restricted Shares shall be either paid at the dividend
payment date, or deferred for payment to such date as determined by the
Committee, in cash or in unrestricted Shares having a Fair Market Value equal to
the amount of such dividends. Unless otherwise determined by the Committee,
Shares distributed in connection with a Share split or dividend in Shares, and
other property distributed as a dividend, shall be subject to restrictions and a
risk of forfeiture to the same extent as the Restricted Shares with respect to
which such Shares or other property has been distributed.
(v) Early
Exercise Options. The Committee shall award Restricted Shares to a
Participant upon the Participant’s early exercise of an Option under Section
4(b)(iv) hereof. Unless otherwise determined by the Committee, the lapse of
restrictions with respect to such Restricted Shares shall occur on the same
schedule as the exercisability of the Option for which the Restricted Shares
were exercised.
(e) Restricted
Share Units. The Committee is authorized to grant Restricted Share Units
to Eligible Persons, subject to the following terms and conditions:
(i) Award
and Restrictions. Delivery of Shares or cash, as the case may be, will
occur upon expiration of the deferral period specified for Restricted Share
Units by the Committee (or, if permitted by the Committee, as elected by the
Eligible Person), but consistent with the requirements of Section 409A of the
Code. In addition, Restricted Share Units shall be subject to such restrictions
as the Committee may impose, if any (including, without limitation, the
achievement of performance criteria if deemed appropriate by the Committee), at
the date of grant or thereafter, which restrictions may lapse at the expiration
of the deferral period or at earlier or later specified times, separately or in
combination, in installments or otherwise, as the Committee may
determine.
(ii)
Forfeiture.
Except as otherwise determined by the Committee at the date of grant or
thereafter, upon Termination of Service during the applicable deferral period or
portion thereof to which forfeiture conditions apply (as provided in the Award
Agreement evidencing the Restricted Share Units), or upon failure to satisfy any
other conditions precedent to the delivery of Shares or cash to which such
Restricted Share Units relate, all Restricted Share Units that are at that time
subject to deferral or restriction shall be forfeited; provided, however, that
the Committee may provide, by rule or regulation or in any Award Agreement, or
may determine in any individual case, that restrictions or forfeiture conditions
relating to Restricted Share Units will be waived in whole or in part in the
event of Termination of Service resulting from specified causes, and the
Committee may in other cases waive in whole or in part the forfeiture of
Restricted Share Units.
(iii)
Dividend
Equivalents. Unless otherwise determined by the Committee at the date of
grant, Dividend Equivalents on the specified number of Shares covered by a
Restricted Share Unit shall be either (A) paid with respect to such Restricted
Share Unit at the dividend payment date in cash or in unrestricted Shares having
a Fair Market Value equal to the amount of such dividends, or (B) deferred with
respect to such Restricted Share Unit and the amount or value thereof
automatically deemed reinvested in additional Restricted Share Units or other
Awards, as the Committee shall determine or permit the Participant to
elect.
(f) Performance
Shares and Performance Units. The Committee is authorized to grant
Performance Shares or Performance Units or both to Eligible Persons on the
following terms and conditions:
(i) Performance
Period. The Committee shall determine a performance period (the
“Performance Period”) of one or more years or other periods and shall determine
the performance objectives for grants of Performance Shares and Performance
Units. Performance objectives may vary from Eligible Person to Eligible Person
and shall be based upon the performance criteria as the Committee may deem
appropriate. The performance objectives may be determined by reference to the
performance of the Company, or of a Subsidiary or Affiliate, or of a division or
unit of any of the foregoing. Performance Periods may overlap and Eligible
Persons may participate simultaneously with respect to Performance Shares and
Performance Units for which different Performance Periods are
prescribed.
-8-
(ii)
Award
Value. At the beginning of a Performance Period, the Committee shall
determine for each Eligible Person or group of Eligible Persons with respect to
that Performance Period the range of number of Shares, if any, in the case of
Performance Shares, and the range of dollar values, if any,
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in the
case of Performance Units, which may be fixed or may vary in accordance with
such performance or other criteria specified by the Committee, which shall be
paid to a Participant as an Award if the relevant measure of Company performance
for the Performance Period is met.
(iii)
Significant
Events. If during the course of a Performance Period there shall occur
significant events as determined by the Committee which the Committee expects to
have a substantial effect on a performance objective during such period, the
Committee may revise such objective.
(iv)
Forfeiture.
Except as otherwise determined by the Committee, at the date of grant or
thereafter, upon Termination of Service during the applicable Performance
Period, Performance Shares and Performance Units for which the Performance
Period was prescribed shall be forfeited; provided, however, that the Committee
may provide, by rule or regulation or in any Award Agreement, or may determine
in an individual case, that restrictions or forfeiture conditions relating to
Performance Shares and Performance Units will be waived in whole or in part in
the event of Termination of Service resulting from specified causes, and the
Committee may in other cases waive in whole or in part the forfeiture of
Performance Shares and Performance Units.
(v) Payment.
Each Performance Share or Performance Unit may be paid in whole Shares,
or cash, or a combination of Shares and cash either as a lump sum payment or in
installments, all as the Committee shall determine, at the time of grant of the
Performance Share or Performance Unit or otherwise, commencing as soon as
practicable after the end of the relevant Performance Period.
(g)
Dividend
Equivalents. The Committee is authorized to grant Dividend Equivalents to
Eligible Persons. The Committee may provide, at the date of grant or thereafter,
that Dividend Equivalents shall be paid or distributed when accrued or shall be
deemed to have been reinvested in additional Shares, or other investment
vehicles as the Committee may specify; provided, however, that Dividend
Equivalents (other than freestanding Dividend Equivalents) shall be subject to
all conditions and restrictions of any underlying Awards to which they
relate.
(h) Other
Share-Based Awards. The Committee is authorized, subject to limitations
under applicable law, to grant to Eligible Persons such other Awards that may be
denominated or payable in, valued in whole or in part by reference to, or
otherwise based on, or related to, Shares, as deemed by the Committee to be
consistent with the purposes of the Plan, including, without limitation,
unrestricted shares awarded purely as a “bonus” and not subject to any
restrictions or conditions, other rights convertible or exchangeable into
Shares, purchase rights for Shares, Awards with value and payment contingent
upon performance of the Company or any other factors designated by the
Committee, and Awards valued by reference to the performance of specified
Subsidiaries or Affiliates. The Committee shall determine the terms and
conditions of such Awards at date of grant or thereafter. Shares delivered
pursuant to an Award in the nature of a purchase right granted under this
Section 4(h) shall be purchased for such consideration, paid for at such times,
by such methods, and in such forms, including, without limitation, cash, Shares,
notes or other property, as the Committee shall determine. Cash awards, as an
element of or supplement to any other Award under the Plan, shall also be
authorized pursuant to this Section 4(h).
(i) Payment
of par value of Shares. The Committee may require that a condition of the
delivery of Shares under Section 4(d), 4(e) or 4(f) above is that the
Participant pays the par value of Shares to the Company prior to delivery of the
Shares, if required to do so under the Act.
5.
Certain Provisions Applicable to Awards.
(a) Stand-Alone,
Additional, Tandem and Substitute Awards. Awards granted under the
Plan may, in the discretion of the Committee, be granted to Eligible Persons
either alone or in addition to, in tandem with, or in exchange or
substitution for, any other Award granted under the Plan or any award
granted under any other plan or agreement of the Company, any Subsidiary or
Affiliate, or any business entity to be acquired by the Company or a Subsidiary
or Affiliate, or any other right of an Eligible Person to receive payment from
the Company or any Subsidiary or Affiliate. Awards may be granted in addition to
or in tandem with such other Awards or awards, and may be granted
ei-
-10-
ther as
of the same time as, or a different time from, the grant of such other Awards or
awards. Subject to the provisions of Section 2(d) hereof prohibiting Option and
SAR repricing without shareholder approval, the per Share exercise price of any
Option, or grant price of any SAR, which is granted in connection with the
substitution of awards granted under any other plan or agreement of the Company
or any Subsidiary or Affiliate, or any business entity to be acquired by the
Company or any Subsidiary or Affiliate, shall be determined by the Committee, in
its discretion.
(b) Term
of Awards. The term of each Award granted to an Eligible Person shall be
for such period as may be determined by the Committee; provided, however, that
in no event shall the term of any Option or SAR exceed a period of ten years
from the date of its grant (or such shorter period as may be applicable under
Section 422 of the Code).
(c) Form
of Payment Under Awards. Subject to the terms of the Plan and any
applicable Award Agreement, payments to be made by the Company or a Subsidiary
or Affiliate upon the grant, maturation, or exercise of an Award may be made in
such forms as the Committee shall determine at the date of grant or thereafter,
including, without limitation, cash, Shares, notes or other property (if
permissible under section 409A of the Code), and may be made in a single payment
or transfer, in installments, or on a deferred basis. The Committee may make
rules relating to installment or deferred payments with respect to Awards,
including the rate of interest to be credited with respect to such
payments.
(d) Noncompetition.
The Committee may, by way of the Award Agreements or otherwise, establish
such other terms, conditions, restrictions and/or limitations, if any, of any
Award, provided they are not inconsistent with the Plan, including, without
limitation, the requirement that the Participant not engage in competition with,
solicit customers or employees of, or disclose or use confidential information
of the Company or its Subsidiaries and Affiliates.
6.
Transferability of Awards.
(a) Restrictions
on Transfer. Except as described in
this Section 6, or unless otherwise set forth by the Committee in an
Award Agreement, Awards shall not be transferable by a Participant except by
will or the laws of descent and distribution (except pursuant to a Beneficiary
designation) and shall be exercisable during the lifetime of a Participant only
by such Participant or his guardian or legal representative. A Participant’s
rights under the Plan may not be pledged, mortgaged, hypothecated, or otherwise
encumbered, and shall not be subject to claims of the Participant’s
creditors.
(b) Transfer
of Nonqualified Stock Options. Notwithstanding the foregoing, the
Committee may provide in a Award Agreement that a Participant may transfer
Nonqualified Stock Options to family members, or one or more trusts or other
entities for the benefit of or owned by family members, consistent with the
applicable securities laws, according to such terms as the Committee may
determine; provided that the Participant receives no consideration for the
transfer of a Nonqualified Stock Option and the transferred Nonqualified Stock
Option shall continue to be subject to the same terms and conditions as were
applicable to the Nonqualified Stock Option immediately before the
transfer.
7.
Change in Control Provisions.
(a) Assumption
of Awards. Upon a Change in Control where the Company is not the
surviving corporation (or survives only as a subsidiary of another corporation),
unless the Committee determines otherwise, all outstanding Options and SARs that
are not exercised shall be assumed by, or replaced with comparable options or
rights by, the surviving corporation (or
a parent or subsidiary of the surviving corporation), and other outstanding
Awards shall be converted to similar awards of the surviving corporation (or a
parent or subsidiary of the surviving corporation).
(b) Other
Alternatives. Notwithstanding the foregoing, in the event of a Change in
Control, the Committee may take any of the following actions with respect to any
or all outstanding Awards: (i) determine that outstanding Op-
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tions and
SARs shall accelerate and become exercisable, in whole or in part, upon the
Change in Control or upon such other event as the Committee determines, (ii)
determine that the restrictions and conditions on outstanding Restricted Shares,
Restricted Share Units, Performance Shares and Performance Units shall lapse, in
whole or in part, upon the Change in Control or upon such other event as the
Committee determines, (iii) determine that Eligible Persons holding Restricted
Share Units, Performance Units, Dividend Equivalents and Other Share-Based
Awards shall receive a payment in settlement of such Restricted Share Units,
Performance Units, Dividend Equivalents, and Other Share-Based Awards in an
amount determined by the Committee, (iv) require that Participants surrender
their outstanding Options and SARs in exchange for a payment by the Company, in
cash or Stock, as determined by the Committee, in an amount equal to the amount
by which the then Fair Market Value of the Shares subject to the Participant’s
unexercised Options and SARs exceeds the exercise price of the Options or the
base amount of SARs, as applicable, or (v) after giving Participants an
opportunity to exercise their outstanding Options and SARs, terminate any or all
unexercised Options and SARs at such time as the Committee deems appropriate.
Such surrender, termination or settlement shall take place as of the date of the
Change in Control or such other date as the Committee may specify. The Committee
shall have no obligation to take any of the foregoing actions, and, in the
absence of any such actions, outstanding Awards shall continue in effect
according to their terms (subject to any assumption pursuant to Subsection (a)
above).
8.
Qualified Performance-Based Compensation.
(a) Designation
as Qualified Performance-Based Compensation. The Committee may determine
that Restricted Shares, Restricted Share Units, Performance Shares, Performance
Units, Dividend Equivalents or Other Share-Based Awards granted to an Employee
shall be considered “qualified performance-based compensation” under Section
162(m) of the Code. The provisions of this Section 8 shall apply to any such
Awards that are to be considered “qualified performance-based compensation”
under Section 162(m) of the Code. The Committee may also grant Options or SARs
under which the exercisability of the Options is subject to achievement of
performance goals as described in this Section 8 or otherwise.
(b) Performance
Goals. When Restricted Shares, Restricted Share Units, Performance
Shares, Performance Units, Dividend Equivalents or Other Share-Based Awards that
are considered to be “qualified performance-based compensation” are granted, the
Committee shall establish in writing (i) the objective performance goals that
must be met, (ii) the period during which performance will be measured, (iii)
the maximum amounts that may be paid if the performance goals are met, and (iv)
any other conditions that the Committee deems appropriate and consistent with
the requirements of Section 162(m) of the Code for “qualified performance-based
compensation.” The performance goals shall satisfy the requirements for
“qualified performance-based compensation,” including the requirement that the
achievement of the goals be substantially uncertain at the time they are
established and that the performance goals be established in such a way that a
third party with knowledge of the relevant facts could determine whether and to
what extent the performance goals have been met. The Committee shall not have
discretion to increase the amount of compensation that is payable, but may
reduce the amount of compensation that is payable upon achievement of the
designated performance goals.
(c) Criteria
Used for Objective Performance Goals. The Committee shall use objectively
determinable performance goals based on one or more of the following criteria:
stock price, earnings per share, price-earnings multiples, net earnings,
operating earnings, revenue, number of days sales outstanding in accounts
receivable, productivity, margin, EBITDA (earnings before interest, taxes,
depreciation and amortization), net capital employed, return on assets,
shareholder return, return on equity, return on capital employed, growth in
assets, unit volume, sales, cash flow, market share, relative performance to a
comparison group designated by the Committee, or strategic business criteria
consisting of one or more objectives based on meeting specified revenue goals,
market penetration goals, customer growth, geographic business expansion goals,
cost targets or goals relating to acquisitions or divestitures. The performance goals may
relate to one or more business units or the performance of the Company as a
whole, or any combination of the foregoing. Performance goals need not be
uniform as among Participants.
(d) Timing
of Establishment of Goals. The Committee shall establish the performance
goals in writing either before the beginning of the performance period or during
a period ending no later than the earlier of (i) 90 days after
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the
beginning of the performance period or (ii) the date on which 25% of the
performance period has been completed, or such other date as may be required or
permitted under applicable regulations under Section 162(m) of the
Code.
(e) Certification
of Results. The Committee shall certify the performance results for the
performance period specified in the Award Agreement after the performance period
ends. The Committee shall determine the amount, if any, to be paid pursuant to
each Award based on the achievement of the performance goals and the
satisfaction of all other terms of the Award Agreement.
(f) Death,
Disability or Other Circumstances. The Committee may provide in the Award
Agreement that Awards under this Section 8 shall be payable, in whole or in
part, in the event of the Participant’s death or disability, a Change in Control
or under other circumstances consistent with the Treasury regulations and
rulings under Section 162(m) of the Code.
9.
General Provisions.
(a) Compliance
with Legal and Trading Requirements. The Plan, the granting and
exercising of Awards thereunder, and the other obligations of the Company under
the Plan and any Award Agreement, shall be subject to all applicable federal,
state and foreign laws, rules and regulations, and to such approvals by any
stock exchange, regulatory or governmental agency as may be required. The
Company, in its discretion, may postpone the issuance or delivery of Shares
under any Award until completion of such stock exchange or market system listing
or registration or qualification of such Shares or any required action under any
state, federal or foreign law, rule or regulation as the Company may consider
appropriate, and may require any Participant to make such representations and
furnish such information as it may consider appropriate in connection with the
issuance or delivery of Shares in compliance with applicable laws, rules and
regulations. No provisions of the Plan shall be interpreted or construed to
obligate the Company to register any Shares under Irish law, US federal or state
law or other applicable law. The Shares issued under the Plan may be subject to
such other restrictions on transfer as determined by the Committee.
(b) No
Right to Continued Employment or Service. Neither the Plan nor any action
taken thereunder shall be construed as giving any employee, consultant or
director the right to be retained in the employ or service of the Company or any
of its Subsidiaries or Affiliates, nor shall it interfere in any way with the
right of the Company or any of its Subsidiaries or Affiliates to terminate any
employee’s, consultant’s or director’s employment or service at any
time.
(c) Taxes.
The Company or any Subsidiary or Affiliate is authorized to withhold from
any Award granted, any payment relating to an Award under the Plan, including
from a distribution of Shares, or any payroll or other payment to an Eligible
Person, amounts of minimum withholding and other taxes due in connection with
any transaction involving an Award, and to take such other action as the
Committee may deem necessary or advisable under applicable laws to enable the
Company and Eligible Persons to satisfy obligations for the payment of
withholding taxes and other tax obligations relating to any Award. This
authority shall include authority to withhold or receive Shares or other
property and to make cash payments in respect thereof in satisfaction of an
Eligible Person’s tax obligations; provided, however, that the amount of tax
withholding to be satisfied by withholding Shares shall be limited to the
minimum amount of taxes, including employment taxes, required to be withheld
under applicable Federal, state, foreign and local law.
(d) Changes
to the Plan and Awards. The Board may amend,
alter, suspend, discontinue, or terminate the Plan or the Committee’s authority
to grant Awards under the Plan without the consent of shareholders of the
Company or Participants, except that any such amendment or alteration shall be
subject to the approval of the Company’s shareholders to the extent such
shareholder approval is required under (i) the rules of any stock exchange or
automated quotation system on which the Shares may then be listed or quoted,
(ii) the Act or (iii) as it applies to ISOs, to the extent such shareholder
approval is required under Section 422 of the Code; provided, however, that,
without the consent of an affected Participant, no amendment, alteration,
suspension, discontinuation, or termination of the Plan may materially and
adversely affect the rights of such Participant under any Award theretofore
granted to him or
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her. The
Committee may waive any conditions or rights under, amend any terms of, or
amend, alter, suspend, discontinue or terminate, any Award theretofore granted,
prospectively or retrospectively; provided, however, that, without the consent
of a Participant, or as provided in Subsection (m) below, no amendment,
alteration, suspension, discontinuation or termination of any Award may
materially and adversely affect the rights of such Participant under any Award
theretofore granted to him or her.
(e) No
Rights to Awards; No Shareholder Rights. No Eligible Person or employee
shall have any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Eligible Persons and employees. No
Award shall confer on any Eligible Person any of the rights of a shareholder of
the Company unless and until Shares are duly issued or transferred to the
Eligible Person in accordance with the terms of the Award.
(f) Unfunded
Status of Awards. The Plan is intended to constitute an “unfunded” plan
for incentive compensation. With respect to any payments not yet made to a
Participant pursuant to an Award, nothing contained in the Plan or any Award
shall give any such Participant any rights that are greater than those of a
general creditor of the Company; provided, however, that the Committee may
authorize the creation of trusts or make other arrangements to meet the
Company’s obligations under the Plan to deliver cash, Shares, other Awards, or
other property pursuant to any Award, which trusts or other arrangements shall
be consistent with the “unfunded” status of the Plan unless the Committee
otherwise determines with the consent of each affected Participant.
(g) Nonexclusivity
of the Plan. Neither the adoption of the Plan by the Board nor its
submission to the shareholders of the Company for approval shall be construed as
creating any limitations on the power of the Board to adopt such other incentive
arrangements as it may deem desirable, including, without limitation, the
granting of options and other awards otherwise than under the Plan, and such
arrangements may be either applicable generally or only in specific
cases.
(h) Not
Compensation for Benefit Plans. No Award payable under this Plan shall be
deemed salary or compensation for the purpose of computing benefits under any
benefit plan or other arrangement of the Company for the benefit of its
employees, consultants or directors unless the Company shall determine
otherwise.
(i) No
Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award. The Committee shall determine whether cash,
other Awards, or other property shall be issued or paid in lieu of such
fractional Shares or whether such fractional Shares or any rights thereto shall
be forfeited or otherwise eliminated.
(j) Employees
Subject to Taxation Outside the United States. With respect to
Participants who are subject to taxation in countries other than the United
States, the Committee may make Awards on such terms and conditions as the
Committee deems appropriate to comply with the laws of the applicable countries,
and the Committee may create such procedures, addenda and subplans and make such
modifications as may be necessary or advisable to comply with such
laws.
(k) Governing
Law. The validity, construction, and effect of the Plan, any rules and
regulations relating to the Plan, and any Award Agreement shall be determined in
accordance with the laws of Ireland, without giving effect to principles of
conflict of laws thereof.
(l) Effective
Date; Plan Termination. The Plan shall become effective as of May 25,
2006 (the “Effective Date”), subject to approval by the shareholders of the
Company. The Plan shall terminate as to future awards on the date which is ten
(10) years after the Effective Date.
(m) Section
409A. It is
intended that the Plan and Awards issued thereunder will comply with Section
409A of the Code (and any regulations and guidelines issued thereunder) to the
extent the Awards are subject thereto, and the Plan and such Awards shall
be interpreted on a basis consistent with such intent. The Plan and any Award
Agreements issued thereunder may be amended in any respect deemed by the Board
or the Committee to be necessary in order to preserve compliance with Section
409A of the Code.
-14-
(n) Titles
and Headings. The titles and headings of the sections in the Plan are for
convenience of reference only. In the event of any conflict, the text of the
Plan, rather than such titles or headings, shall control.
-15-
EXHIBIT
5.1
|
JTG/AFC
|
October
20, 2008
|
Elan
Corporation, plc
Treasury
Building
Lower
Grand Canal Street
Dublin
2,
Ireland
Dear Sirs
In
connection with this Opinion, we have reviewed copies of such corporate records
of Elan as we have deemed necessary as a basis for the opinions hereinafter
expressed. In rendering this opinion, we have examined, and have assumed the
truth and accuracy of the contents of, such documents and certificates of
officers of Elan and of public officials as to factual matters and have
conducted such searches in public registries in Ireland as we have deemed
necessary or appropriate for the purposes of this opinion but have made no
independent investigation regarding such factual matters. In our
examination we have assumed the truth and accuracy of the information contained
in such documents, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such documents. We have further
assumed that none of the resolutions and authorities of the shareholders or
Directors of Elan upon which we have relied have been varied, amended or revoked
in any respect or have expired and that the Ordinary Shares will be issued in
accordance with such resolutions and authorities. We further assume
that Elan will comply with all covenants given and representations and
warranties made in connection with the 2006 Long Term Incentive Plan (2008
Amendment and Restatement), including, without limitation, any covenant to
maintain sufficient authorised share capital in respect of the Ordinary Shares
issuable upon the exercise of any rights under these plans.
Having
made such further investigation and reviewed such other documents as we have
considered requisite or desirable, subject to the foregoing and to the within
additional qualifications and assumptions, we are of the opinion
that:
1.
Elan has been duly incorporated and is an existing public limited company under
the laws of Ireland.
2.
The Ordinary Shares have been duly authorised and when issued and paid for in
accordance with the terms of the applicable Plan, will be validly issued, fully
paid and not subject to calls for any additional payments.
3.
Under the laws of Ireland, where Elan is incorporated and has its principal
place of business, no personal liability attaches to the holders of the Ordinary
Shares solely by reason of their being holders thereof.
The
additional assumptions and qualifications to which this Opinion is subject are
as follows:
In
rendering this Opinion, we have confined ourselves to matters of Irish
law. We express no opinion on any laws other than the laws of Ireland
(and the interpretation thereof) in force as at the date
hereof. Additionally, we express no opinion on compliance by Elan
with the requirements of the Irish Stock Exchange Limited which are not of a
legal nature.
We hereby
consent to the filing of this Opinion with the United States Securities and
Exchange Commission as an exhibit to the Registration Statement.
This
Opinion is being delivered to you and may not be relied upon or distributed to
any other person without our prior written consent.
The
Opinion is governed by and construed in accordance with the laws of
Ireland.
-2-
EXHIBIT
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board
of Directors
Elan
Corporation, plc
Dear
Sirs:
We
consent to the use of our reports, with respect to the consolidated balance
sheets of Elan Corporation, plc and subsidiaries, as of December 31, 2007 and
2006, and the related consolidated statements of operations, shareholders’
equity/(deficit) and other comprehensive income/(loss) and cash flows for each
of the years in the three-year period ended December 31, 2007, the related
financial statement schedule, and the effectiveness of internal control over
financial reporting as of December 31, 2007, which reports appear in the Annual
Report on Form 20-F of Elan Corporation, plc for the fiscal year ended December
31, 2007, all incorporated herein by reference. Our report on the
consolidated financial statements, dated February 28, 2008, contains an emphasis
paragraph which states that effective January 1, 2007, Elan Corporation, plc
adopted the provisions of the Financial Accounting Standards Board (FASB) issued
Interpretation No. 48, Accounting for Uncertainty in Income
Taxes – an interpretation of FASB Statement No. 109, and effective
January 1, 2006, Elan Corporation, plc adopted the provisions of Statement of
Financial Accounting Standard No. 123 (revised 2004), Share-Based
Payment.
/s/ KPMG
KPMG
Chartered
Accountants
Dublin,
Ireland
October
20, 2008