Name of Recipient: | «Name» | ||||
Total Number of RSUs Granted: | «TotalRSUs» | ||||
Date of Grant: | «DateGrant» | ||||
Vesting Commencement Date | «VestCommDate» | ||||
Vesting Schedule: | 25% of the RSUs subject to this award will vest on the first anniversary of the Vesting Commencement Date and an additional 6.25% of the RSUs subject to this award will vest on each three-month anniversary of the Vesting Commencement Date occurring thereafter (or if there is no corresponding date, on the last day of the applicable month), in each case, subject to your continuous service as an Employee or Consultant (“Service”) through each such vesting date. |
Grant of RSUs | Subject to all of the terms and conditions set forth in the Shapeways Holdings, Inc. 2021 Equity Incentive Plan (the “Plan”), the Notice of Restricted Stock Unit Award for Non-U.S. Recipients (the “Grant Notice”), and this Restricted Stock Unit Agreement for Non-U.S. Recipients, including any additional terms and conditions for your country set forth in the appendix attached hereto (the “Appendix” and, together with the Restricted Stock Unit Agreement for Non-U.S. Recipients, this “Agreement”), the Company has granted to you the number of RSUs set forth in the Grant Notice. All capitalized terms used in this Agreement shall have the meanings assigned to them in this Agreement, the Grant Notice or the Plan, as applicable. | ||||
Nature of RSUs | Your RSUs are bookkeeping entries. They represent only the Company’s unfunded and unsecured promise to issue Common Shares on a future date, subject to the terms and conditions of this Agreement, the Grant Notice and the Plan. As a holder of RSUs, you have no rights other than the rights of a general creditor of the Company. | ||||
Payment for RSUs | No payment is required for the RSUs that you are receiving. | ||||
Vesting | The RSUs vest in accordance with the vesting schedule set forth in the Grant Notice. In no event will any additional RSUs vest after your Service has terminated for any reason unless expressly provided in a written agreement between you and the Company. For the avoidance of doubt, Service during only a portion of the vesting schedule, but where your Service terminates prior to a vesting date, will not entitle you to vest in a pro-rata portion of the RSUs or to compensation for lost vesting. |
Termination of Service/Forfeiture | If your Service terminates for any reason, then your RSUs will be forfeited to the extent that they have not vested before the termination date and do not vest as a result of the termination of your Service. This means that any RSUs that have not vested under this Agreement will be cancelled immediately. You will receive no payment for RSUs that are forfeited. For purposes of the RSUs, your Service will be considered terminated as of the date you are no longer actively providing services to the Company or any Parent, Subsidiary or Affiliate (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or otherwise rendering services or the terms of your employment or other service agreement, if any) and will not be extended by any notice period (e.g., your Service will not be extended by any contractual notice period or period of “garden leave” or similar period mandated under employment laws in the jurisdiction where you are employed or otherwise rendering services or the terms of your employment or other service agreement, if any). The Administrator shall have exclusive discretion to determine when you are no longer actively providing services for purposes of the RSUs (including when you are no longer considered to be in continued Service while on a leave of absence). | ||||
Leaves of Absence and Part-Time Work | For purposes of this award, your Service does not terminate when you go on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing. However, except as otherwise determined by the Company, your Service terminates when the approved leave ends, unless you immediately return to active work. If you go on an unpaid leave of absence that lasts more than thirty days, then, to the extent permitted by applicable law, the vesting schedule specified in the Grant Notice will be suspended on the thirty-first day of such unpaid leave, and this award will not vest with respect to any additional RSUs during the remainder of such leave. Vesting will resume when you return to active Service. If you go on a paid leave of absence, the vesting schedule specified in the Grant Notice may be suspended and/or adjusted in accordance with the Company’s leave of absence policy or the terms of your leave. If you commence working on a part-time basis, the Company may adjust the vesting schedule so that the rate of vesting is commensurate with your reduced work schedule, to the extent permitted by applicable law. |
Settlement of RSUs | Each RSU will be settled as soon as practicable on or following the date when it vests, and in any event within the “short-term deferral period” as defined under Code Section 409A. At the Administrator’s discretion, settlement may occur on fixed dates established by the Administrator for settlement of RSUs. In no event will you be permitted, directly or indirectly, to specify the taxable year of settlement of any RSUs subject to this award. At the time of settlement, you will receive one Common Share for each vested RSU (plus payment of any dividend equivalents). | ||||
Section 409A | Settlement of these RSUs is intended to be exempt from the application of Code Section 409A pursuant to the “short-term deferral” exemption under Treasury Regulation Section 1.409A-1(b)(4), and this Agreement and the Grant Notice shall be administered and interpreted in a manner that complies with such exemption. Notwithstanding the foregoing, if it is determined that settlement of these RSUs is not exempt from Code Section 409A and the Company determines that you are a “specified employee,” as defined in the regulations under Code Section 409A at the time of your “separation from service,” as defined in Treasury Regulation Section 1.409A-1(h), then this paragraph will apply. If this paragraph applies, and the event triggering settlement is your “separation from service,” then any RSUs that otherwise would have been settled during the first six months following your “separation from service” will instead be settled on the first business day following the earlier of (i) the six-month anniversary of your separation from service or (ii) your death. Each installment of RSUs that vests is hereby designated as a separate payment for purposes of Code Section 409A. |
No Voting Rights; Dividend Equivalents | Your RSUs carry neither voting rights nor rights to cash dividends. You have no rights as a stockholder of the Company unless and until your RSUs are settled by issuing Common Shares. Each of your RSUs shall be credited with dividend equivalents, which shall be withheld by the Company for your account. Dividend equivalents credited to your account and attributable to an RSU shall be distributed (without interest) to you at the same time as the underlying Common Share is delivered upon settlement of such RSU and if such RSU is forfeited, you shall have no right to such dividend equivalents. Dividend equivalents may be payable, in the discretion of the Company, (x) in cash, (y) in Common Shares with a Fair Market Value as of the date the RSUs are settled equal to the dividend equivalents, or (z) in an adjustment to the underlying number of Common Shares subject to the RSUs. |
RSUs Nontransferable | The RSUs may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered (a “Transfer”) by you other than by will or by the laws of descent and distribution, pursuant to a qualified domestic relations order or as otherwise permitted under the Plan; provided, that in case of any such permitted transfer, (i) the vesting, forfeiture and clawback provisions shall continue to relate to your Service and any termination thereof and (ii) such transfer shall be subject to such advance notice and other rules and requirements as determined by the Administrator in its sole discretion. Any attempted Transfer of the RSUs contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the RSUs, shall be null and void and without effect. In addition, regardless of any marital property settlement agreement, the Company is not obligated to recognize your former spouse’s interest in your RSUs in any way. | ||||
Beneficiary Designation | You may dispose of your RSUs in a written beneficiary designation if authorized by the Company and to the extent such beneficiary designation is valid under applicable law. Any beneficiary designation must be filed with the Company on the proper form. It will be recognized only if it has been received at the Company’s headquarters before your death. If you do not file any beneficiary designation, if the beneficiary designation is not valid or if none of your designated beneficiaries survives you, then your estate will receive any vested RSUs that you hold at the time of your death. |
Responsibility for Taxes | Regardless of any action the Company or, if different, the Parent, Subsidiary or Affiliate employing or otherwise retaining you (the "Service Recipient") takes with respect to any or all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to your participation in the Plan and legally applicable or deemed legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount, if any, actually withheld by the Company and/or the Service Recipient. You further acknowledge that the Company and the Service Recipient (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including, but not limited to, the grant, vesting or settlement of the RSUs, the issuance of Common Shares upon settlement of the RSUs, the subsequent sale of Common Shares acquired pursuant to such issuance and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to, and are under no obligation to, structure the terms of the RSUs or any aspect of the RSUs to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you are subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Service Recipient (or former service recipient, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction. In connection with any relevant taxable or tax withholding event, as applicable, you agree to make adequate arrangements satisfactory to the Company and/or the Service Recipient to satisfy all Tax-Related Items. In this regard, you authorize the Company and/or the Service Recipient, or their respective agents, to satisfy any withholding obligations with regard to Tax-Related Items by one or a combination of the following, as determined by the Administrator: •Withholding the amount of any Tax-Related Items from your wages or other cash compensation payable to you by the Company, any Parent, Subsidiary or Affiliate; •Instructing a brokerage firm selected by the Company for this purpose to sell on your behalf a number of whole Common Shares to be issued to you when the RSUs are settled that the Company determines are appropriate to generate cash proceeds sufficient to satisfy the withholding obligation for Tax-Related Items. This method of satisfying your Tax-Related Items is referred to as “sale-to-cover.” You acknowledge that the Company or its designee is under no obligation to arrange for such sale at any particular price. Regardless of whether the Company arranges for such sale, you will be responsible for all fees and other costs of sale, and you agree to indemnify and hold the Company harmless from any losses, costs, damages or expenses relating to any such sale; |
•Withholding Common Shares that would otherwise be issued to you when the RSUs are settled equal in value to the withholding obligation for Tax-Related Items. The fair market value of the withheld Common Shares, determined as of the date when taxes otherwise would have been withheld in cash, will be applied to the Tax-Related Items; or •Any other means approved by the Administrator. To the extent the Administrator elects to satisfy the Tax-Related Items by means of a sale-to-cover, you hereby authorize the Company to instruct the broker whom it has selected for this purpose to sell a number of Common Shares to be issued upon settlement of your RSUs necessary to satisfy the withholding obligation for Tax-Related Items. The Company may withhold or account for Tax-Related Items by considering statutory or other withholding rates, including minimum or maximum rates applicable in your jurisdiction(s). In the event of over-withholding, you may receive a refund of any over-withheld amount in cash and will have no entitlement to the equivalent in Common Shares, or, if not refunded, you may be able to seek a refund from the applicable tax authorities. In the event of under-withholding, you may be required to pay additional Tax-Related Items directly to the applicable tax authorities or to the Company or the Service Recipient. If the withholding obligation for Tax-Related Items is satisfied by withholding Common Shares, for tax purposes, you will be deemed to have been issued the full number of Common Shares subject to the RSUs, notwithstanding that a number of Common Shares is held back solely for the purpose of paying the Tax-Related Items. Finally, you shall pay to the Company or the Service Recipient any amount of Tax-Related Items that the Company or the Service Recipient may be required to withhold as a result of your participation in the Plan or your acquisition of Common Shares that cannot be satisfied by the means previously described. The Company may refuse to deliver the Common Shares or proceeds from the sale of such Common Shares, if you fail to comply with your obligations in connection with the Tax-Related Items as described in this section, and you will permanently forfeit the applicable RSUs (and related underlying Common Shares and any related dividend equivalents). |
Restrictions on Issuance | The Company will not issue any Common Shares to you if the issuance of Common Shares at that time would violate any law or regulation. Notwithstanding any other provision in the Plan, the Grant Notice or this Agreement, unless there is an available exemption from registration, qualification or other legal requirement applicable to the Common Shares, the Company shall not be required to issue any Common Shares to you prior to the completion of any registration or qualification of the Common Shares under any U.S. or non-U.S. federal, state or local securities law or under rulings or regulations of the U.S. Securities and Exchange Commission (“SEC”) or of any other governmental body, or prior to obtaining any approval or other clearance from any U.S. or non- U.S. federal, state or local governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. You understand that the Company is under no obligation to register or qualify the Common Shares with the SEC or any state securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the Common Shares. | ||||
Restrictions on Resale | You agree not to sell any Common Shares at a time when applicable laws, Company policies or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify. | ||||
No Retention Rights | Neither your award nor any documentation related thereto (including this Agreement, the Grant Notice and the Plan) gives you the right to be retained by the Company or the Service Recipient in any capacity. The Company and the Service Recipient, as applicable, reserve the right to terminate your Service at any time, with or without cause. |
Nature of Grant | By accepting the RSUs, you acknowledge, understand and agree that: •the Plan is established voluntarily by the Company, is wholly discretionary in nature and may be modified, amended, suspended, or terminated by the Company at any time, to the extent permitted by the Plan; •the grant of the RSUs is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of restricted stock units, or benefits in lieu of restricted stock units, even if restricted stock units have been granted in the past; •all decisions with respect to future grants of restricted stock units or other grants, if any, will be at the sole discretion of the Company; •you are voluntarily participating in the Plan; •the RSUs and your participation in the Plan shall not create a right of Service with the Company; •the RSUs and any Common Shares acquired under the Plan, and the income from and value of the same, are not intended to replace any pension rights or compensation; •the RSUs and any Common Shares acquired under the Plan, and the income from and value of the same, are not part of normal or expected compensation for any purpose, including but not limited to, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, holiday pay, pension or retirement or welfare benefits or similar payments; •the future value of the Common Shares underlying the RSUs is unknown, indeterminable, and cannot be predicted with certainty; •no claim or entitlement to compensation or damages shall arise from forfeiture of any portion of the RSUs resulting from your termination of Service (for any reason whatsoever and regardless of whether or not later found to be invalid or in breach of employment or other laws in the jurisdiction where you are employed or otherwise rendering services or the terms of your employment or other service agreement, if any); |
•unless otherwise agreed with the Company in writing, the RSUs and the Common Shares subject to the RSUs, and the income from and value of the same, are not granted as consideration for, or in connection with, the Service you may provide as a director of any Subsidiary or Affiliate; and •neither the Company, the Service Recipient nor any other Parent, Subsidiary or Affiliate shall be liable for any foreign exchange rate fluctuation between your local currency and the U.S. dollar that may affect the value of the RSUs or of any amounts due to you pursuant to the vesting of the RSUs or the subsequent sale of any Common Shares acquired upon settlement of the RSUs. |
Data Privacy and Consent | (a) Data Collection and Usage. The Company and the Service Recipient collect, process and use certain personal information about you, including, but not limited to, your name, home address and telephone number, email address, date of birth, social insurance, passport or other identification number, salary, nationality, job title, any shares or directorships held in the Company, details of all stock options or any other entitlement to shares or equivalent benefits awarded, canceled, exercised, vested, unvested or outstanding in your favor (“Data”), for the purpose of implementing, administering and managing the Plan. The legal basis, where required, for the processing of Data is your consent. (b) Stock Plan Administration Service Providers. The Company transfers Data to [INSERT STOCK ADMIN PROVIDER/BROKER NAME] (“Stock Plan Administrator”), an independent service provider based in the United States, which is assisting the Company with the implementation, administration and management of the Plan. The Company may select a different service provider or additional service providers and share Data with such other provider(s) serving in a similar manner. You may be asked to agree on separate terms and data processing practices with the Stock Plan Administrator, with such agreement being a condition to the ability to participate in the Plan. (c) International Data Transfers. The Company and Stock Plan Administrator are based in the United States. Your country or jurisdiction may have different data privacy laws and protections than the United States. The Company’s legal basis, where required, for the transfer of Data is your consent. (d) Data Retention. The Company will hold and use Data only as long as is necessary to implement, administer and manage your participation in the Plan, or as required to comply with legal or regulatory obligations, including under tax, exchange control, securities, labor and other laws. This means Data may be retained until after your Service is terminated. (e) Voluntariness and Consequences of Consent Denial or Withdrawal. Participation in the Plan is voluntary, and you are providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your compensation from or Service with the Service Recipient will not be affected; the only consequence of refusing or withdrawing your consent is that the Company would not be able to grant the RSUs or other awards to you or administer or maintain such awards. (f) Data Subject Rights. You may have a number of rights under data privacy laws in your jurisdiction. Depending on where you are based, such rights may include the right to (i) request access or copies of Data the Company processes, (ii) rectification of incorrect Data, (iii) deletion of Data, (iv) restrictions on processing of Data, (v) portability of Data, (vi) lodge complaints with competent authorities in your jurisdiction, and/or (vii) receive a list with the names and addresses of any potential recipients of Data. To receive clarification regarding these rights or to exercise these rights, you can contact your local human resources representative. |
No Advice Regarding Grant | The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your participation in the Plan, or your acquisition or sale of the underlying Common Shares. You should consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan. | ||||
Adjustments | In the event of a stock split, stock dividend, reorganization and recapitalization or a similar change in Company stock, the number of your RSUs will be adjusted pursuant to the Plan. | ||||
Effect of Significant Corporate Transactions | If the Company is a party to a merger, consolidation, or certain change in control transactions, then your RSUs will be subject to the applicable provisions of Article 9 of the Plan, provided that any action taken must either (a) preserve the exemption of your RSUs from Code Section 409A or (b) comply with Code Section 409A. | ||||
No Fractional Shares | No fractional Common Shares will be issued upon settlement. In lieu of issuing a fractional Common Share resulting from an adjustment of the RSUs pursuant to the Plan or otherwise, the Company shall be entitled to pay to you a cash amount equal to the Fair Market Value of such fractional Common Share. | ||||
Recoupment Policy | This award, and the Common Shares acquired upon settlement of this award, shall be subject to recoupment or clawback under any Company policy in effect from time to time, or to the extent required by applicable law in effect at the relevant time (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and/or the rules and regulations of any applicable securities exchange or inter-dealer quotation system on which the Common Shares may be listed or quoted. | ||||
Language | You acknowledge that you are sufficiently proficient in English, or have consulted with an advisor who is sufficiently proficient in English, so as to allow you to understand the terms and conditions of this Agreement. If you have received this Agreement, or any other documents related to the Plan translated into a language other than English and if the meaning of the translated version is different from the English version, the English version will control. | ||||
Appendix | Notwithstanding any provisions in this Restricted Stock Unit Agreement for Non-U.S. Recipients, the RSUs shall be subject to any additional terms and conditions for your country set forth in the Appendix attached hereto. Moreover, if you relocate to one of the countries included in the Appendix, the additional terms and conditions for such country, if any, will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Appendix constitutes part of this Agreement. | ||||
Imposition of Other Requirements | The Company reserves the right to impose other requirements on your participation in the Plan and on any Common Shares acquired under the Plan, if the Company determines it is necessary or advisable for legal or administrative reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. |
Insider Trading/Market Abuse | By accepting the RSUs, you acknowledge that you are bound by all the terms and conditions of the Company’s Insider Trading Policy as may be in effect from time to time. You further acknowledge that, depending on your or your broker’s country or the country in which the Common Shares are listed, you may be subject to insider trading restrictions and/or market abuse laws which may affect your ability, directly or indirectly, to accept, acquire, sell or attempt to sell, or otherwise dispose of Common Shares, rights to Common Shares (e.g., RSUs) or rights linked to the value of Common Shares, during such times as you are considered to have “inside information” regarding the Company (as defined by the laws in the applicable jurisdiction(s)). Local insider trading laws and regulations may prohibit the cancelation or amendment of orders you placed before possessing the inside information. Furthermore, you understand that you may be prohibited from (i) disclosing the inside information to any third party, including fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties by sharing with them Company inside information, or otherwise causing third parties to buy or sell Company securities. Any restrictions under these laws or regulations are separate from and in addition to restrictions that may apply to you under the Company’s Insider Trading Policy as may be in effect from time to time. You acknowledge that it is your responsibility to comply with the Company’s Insider Trading Policy and any applicable regulatory trading restrictions. You should consult with your personal legal advisor on this matter. | ||||
Foreign Asset/Account Reporting Requirements | You acknowledge that there may be certain foreign asset and/or account reporting requirements which may affect your ability to acquire or hold Common Shares or cash received from participating in the Plan (including from any dividends or dividend equivalents paid on Common Shares) in a brokerage or bank account outside your country. You may be required to report such accounts, assets, or related transactions to the tax or other authorities in your country. You may also be required to repatriate sale proceeds or other funds received as a result of your participation in the Plan to your country within a certain time after receipt. You acknowledge that it is your responsibility to comply with such regulations and that you should speak with a personal legal advisor on this matter. | ||||
Amendment and Waiver | The Administrator, at any time, and from time to time, may amend the terms of the Grant Notice or this Agreement; provided, however, that your rights shall not be materially and adversely affected without your written consent, subject to the provisions in the Imposition of Other Requirements section above. Any right of the Company contained in the Grant Notice or this Agreement may be waived in writing by the Administrator. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of the Grant Notice or this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach. |
Applicable Law; Consent to Jurisdiction; Waiver of Jury Trial | This Agreement and the Grant Notice will be interpreted and enforced under the laws of the State of Delaware without regard to its choice-of-law provisions or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware. You and the Company (on behalf of itself and its Parent, Subsidiaries and Affiliates) each consents to the exclusive jurisdiction in a Delaware state or a federal court sitting in Wilmington, Delaware, and each waives any other requirement (whether imposed by statute, rule of court or otherwise) with respect to personal jurisdiction or service of process and waives any objection to jurisdiction based on improper venue or improper jurisdiction. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY, IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE PLAN, THE GRANT NOTICE OR THIS AGREEMENT. | ||||
Successors; Interpretation | The terms of the Grant Notice and this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of you and your beneficiaries, executors, administrators, heirs and successors. The invalidity or unenforceability of any provision of this Agreement (or the Grant Notice, as applicable) shall not affect the validity or enforceability of any other provision of this Agreement (or the Grant Notice, as applicable), and each other provision of this Agreement (or the Grant Notice, as applicable) shall be severable and enforceable to the extent permitted by law. The headings of the sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of the Grant Notice or this Agreement. Pronouns and other words of gender shall be read as gender-neutral. Words importing the plural shall include the singular and the singular shall include the plural. Each of the Grant Notice and this Agreement may be entered into in counterparts. | ||||
The Plan and Other Agreements | The text of the Plan is incorporated in this Agreement by reference. The Administrator shall have final authority to interpret and construe the Plan, the Grant Notice and this Agreement and to make any and all determinations under them, and its decision shall be binding and conclusive upon you and all other persons in respect of any questions arising under the Plan, the Grant Notice or this Agreement. The Plan, this Agreement and the Grant Notice constitute the entire understanding between you and the Company regarding this award. Any prior agreements, commitments or negotiations concerning this award are superseded. |
Name of Recipient: | «Name»1 | |||||||
Total Number of RSUs Granted: | «TotalRSUs»2 | |||||||
Date of Grant: | «DateGrant»3 | |||||||
[Vesting Commencement Date:4 | <<Vest-ComDate>>] | |||||||
Expiration Date: | [______ __, ____]5 | |||||||
Vesting: | Two vesting requirements must be satisfied on or before the Expiration Date specified above in order for an RSU to vest: | |||||||
(i) a requirement that you provide continuous Service over the period of time set forth in “Service-Based Condition” below; and | ||||||||
(ii) a requirement that the applicable “RSU Performance Milestone,” as set forth below, is satisfied. As described below, the RSU Performance Milestones will be satisfied as to 50% of the RSUs upon the achievement of the First RSU Performance Milestone (as defined below), and as to the remaining 50% of the RSUs upon the achievement of the Second RSU Performance Milestone (as defined below). | ||||||||
The requirements described in the foregoing clauses (i) and (ii) are collectively referred to herein as the “Vesting Requirements.” | |||||
For clarity, if the Service-Based Condition is satisfied for any RSUs prior to satisfaction of any RSU Performance Milestone, (i) such RSUs shall remain outstanding and eligible to vest upon the satisfaction of the applicable RSU Performance Milestones on or before the Expiration Date and (ii) if, subsequently, the First RSU Performance Milestone (as defined below) is achieved on or before the Expiration Date but the Second RSU Performance Milestone (as defined below) has not yet been achieved, then 50% of such RSUs shall vest upon satisfaction of the First RSU Performance Milestone and the remaining 50% of such RSUs shall remain outstanding and eligible to vest upon the satisfaction of the Second RSU Performance Milestone on or before the Expiration Date. | |||||
If, prior to the satisfaction of the Service-Based Condition for any RSUs, the First RSU Performance Milestone (but not the Second RSU Performance Milestone) has been achieved, then upon satisfaction of the Service-Based Condition for such RSUs, 50% of the RSUs eligible to vest upon the applicable Service Date (as defined below) shall become vested, and the remaining 50% of the RSUs eligible to vest upon such Service Date shall remain outstanding and eligible to vest upon the upon the satisfaction of the Second RSU Performance Milestone on or before the Expiration Date. | |||||
If, prior to the satisfaction of the Service-Based Condition for any RSUs, both the First RSU Performance Milestone and the Second RSU Performance Milestone have been achieved, then upon satisfaction of the Service-Based Condition for such RSUs, 100% of the RSUs eligible to vest upon the applicable Service Date shall become vested. | |||||
The “Vesting Date” of a given RSU will be the first date on or before the Expiration Date upon which all Vesting Requirements are satisfied with respect to that particular RSU. | |||||
A given RSU will not vest if any Vesting Requirement fails to be satisfied with respect to that RSU on or before the Expiration Date. Such RSU shall be forfeited as of (x) the Expiration Date or (y) your earlier termination of Service that results in such forfeiture in accordance with the Restricted Stock Unit Agreement for Non-U.S. Recipients, as the case may be. Upon such forfeiture, you will have no further rights with respect to such forfeited RSU or the Common Share covered thereby. |
A given RSU will not vest if any Vesting Requirement fails to be satisfied with respect to that RSU on or before the Expiration Date. Such RSU shall be forfeited as of (x) the Expiration Date or (y) your earlier termination of Service that results in such forfeiture in accordance with the Restricted Stock Unit Agreement for Non-U.S. Recipients, as the case may be. Upon such forfeiture, you will have no further rights with respect to such forfeited RSU or the Common Share covered thereby. | |||||
Service-Based Condition:6 | [Version 1: The Service-Based Condition has been satisfied with respect to all of your RSUs as of the Date of Grant. The “Service Date” for purposes of this Agreement (as defined below) shall mean the Date of Grant.] | ||||
[Version 2: The Service-Based Condition will be satisfied (i) with respect to the first 25% of the RSUs on the [12-month] [6-month] anniversary of the Vesting Commencement Date and (ii) monthly thereafter with respect to 1/48th of the RSUs, provided you remain in continuous Service through each such date (each, a “Service Date”).] | |||||
[Version 3: The Service-Based Condition will be satisfied with respect to [1/__th] of the RSUs on the monthly anniversary of the Vesting Commencement Date, provided you remain in continuous Service through each such date (each, a “Service Date”).] | |||||
RSU Performance Milestones: | The “First RSU Performance Milestone” will be satisfied if and when the VWAP of the Common Shares equals or exceeds $14.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations and similar transactions after the Closing) for 30 consecutive Trading Days (as defined in the Restricted Stock Unit Agreement for Non-U.S. Recipients) occurring during the period beginning on the Closing Date and ending on the Expiration Date. | ||||
The “Second RSU Performance Milestone” will be satisfied if and when the VWAP of the Common Shares equals or exceeds $16.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations and similar transactions after the Closing) for 30 consecutive Trading Days occurring during the period beginning on the Closing Date and ending on the Expiration Date. |
For the avoidance of doubt, if the Second RSU Performance Milestone has been achieved on or prior to the Expiration Date, then the First RSU Performance Milestone (if not already satisfied) will have also been achieved upon satisfaction of the Second RSU Performance Milestone, such that, upon achievement of the Second RSU Performance Milestone, both RSU Performance Milestones shall be considered satisfied for all RSUs granted hereunder. |
1. Grant of RSUs | Subject to all of the terms and conditions set forth in the Shapeways Holdings, Inc. 2021 Equity Incentive Plan (the “Plan”), the Notice of Restricted Stock Unit Award for Non-U.S. Recipients (the “Grant Notice”), and this Restricted Stock Unit Agreement for Non-U.S. Recipients, including any additional terms and conditions for your country set forth in the appendix attached hereto (the “Appendix” and, together with the Restricted Stock Unit Agreement for Non-U.S. Recipients, this “Agreement”), the Company has granted to you the number of RSUs set forth in the Grant Notice. All capitalized terms used in this Agreement shall have the meanings assigned to them in this Agreement, the Grant Notice or the Plan, as applicable. | ||||
2. Nature of RSUs | Your RSUs are bookkeeping entries. They represent only the Company’s unfunded and unsecured promise to issue Common Shares on a future date, subject to the terms and conditions of this Agreement, the Grant Notice and the Plan. As a holder of RSUs, you have no rights other than the rights of a general creditor of the Company. | ||||
3. Vesting | The RSUs vest in accordance with the Vesting provisions set forth in the Grant Notice. For the avoidance of doubt, Service during only a portion of the period of time necessary to meet the Service-Based Condition, but where your Service terminates prior to a Service Date, will not entitle you to vest in a pro-rata portion of the RSUs or to compensation for lost vesting. | ||||
4. Settlement of RSUs | (a) Each vested RSU shall be settled as soon as practicable on or following the applicable Vesting Date, and in any event within the “short-term deferral period” as defined under Code Section 409A. In no event will you be permitted, directly or indirectly, to specify the taxable year of settlement of any RSUs subject to this award. (b) At the time of settlement, you will receive one Common Share for each vested RSU (plus payment of any dividend equivalents pursuant to Section 8 hereof). |
5. Termination of Service; Expiration | (a) Except (x) as otherwise determined by the Administrator or (y) expressly provided in an employment, consulting or other written agreement between you and the Company and/or one of its Subsidiaries or Affiliates, as applicable, any RSUs for which the Service-Based Condition has not been satisfied as of your termination of Service shall be forfeited and cancelled without payment. (b) If your Service terminates before one or more of the RSU Performance Milestones has been met, then the portion of your RSUs for which the Service-Based Condition has been satisfied (taking into account any acceleration pursuant to this Section 5, as applicable) shall remain outstanding and eligible to vest upon achievement of the applicable RSU Performance Milestones. (c) If any RSU Performance Milestone fails to be satisfied by the Expiration Date, then the corresponding RSUs shall be forfeited and cancelled without payment as of the Expiration Date. (d) For purposes of the RSUs, your Service will be considered terminated as of the date you are no longer actively providing services to the Company or any Parent, Subsidiary or Affiliate (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are employed or otherwise rendering services or the terms of your employment or other service agreement, if any) and will not be extended by any notice period (e.g., your Service will not be extended by any contractual notice period or period of “garden leave” or similar period mandated under employment laws in the jurisdiction where you are employed or otherwise rendering services or the terms of your employment or other service agreement, if any). The Administrator shall have exclusive discretion to determine when you are no longer actively providing services for purposes of the RSUs (including when you are no longer considered to be in continued Service while on a leave of absence). | ||||
6. Leaves of Absence and Part-Time Work | (a) For purposes of this award, except as set forth in subsection (b) below, your Service does not terminate when you go on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing. Your Service will be deemed terminated for purposes of this award when the approved leave ends, unless you immediately return to active work. (b) If you go on a leave of absence that lasts more than 30 days, then, to the extent permitted by applicable law, the Company may adjust or suspend the schedule of Service Dates under the Service-Based Condition specified in the Grant Notice. (c) If you commence working on a part-time basis, the Company may adjust the vesting schedule so that the rate of vesting is commensurate with your reduced work schedule, to the extent permitted by applicable law. |
7. Section 409A | (a) These RSUs are intended to be exempt from the application of Code Section 409A pursuant to the “short-term deferral” exemption under Treasury Regulation Section 1.409A-1(b)(4), and this Agreement and the Grant Notice shall be administered and interpreted in a manner that complies with such exemption. (b) Notwithstanding the foregoing, if it is determined that settlement of these RSUs is not exempt from Code Section 409A and the Company determines that you are a “specified employee,” as defined in the regulations under Code Section 409A at the time of your “separation from service” from the Company and its Affiliates, as such term is defined in Treasury Regulation Section 1.409A-1(h), then this paragraph will apply. If this paragraph applies, and the event triggering settlement is your “separation from service” from the Company and its Affiliates, then any RSUs that otherwise would have been settled during the first six months following your “separation from service” will instead be settled on the first business day following the earlier of (i) the six-month anniversary of your separation from service or (ii) your death. (c) Each installment of RSUs that is settled after vesting is hereby designated as a separate payment for purposes of Code Section 409A. | ||||
8. No Voting Rights; Dividend Equivalents | Your RSUs carry neither voting rights nor rights to cash dividends. You have no rights as a stockholder of the Company unless and until your RSUs are settled by issuing Common Shares. Each of your RSUs shall be credited with dividend equivalents, which shall be withheld by the Company for your account. Dividend equivalents credited to your account and attributable to an RSU shall be distributed (without interest) to you at the same time as the underlying Common Share is delivered upon settlement of such RSU and, if such RSU is forfeited, you shall have no right to such dividend equivalents. Dividend equivalents may be payable, in the discretion of the Company, (x) in cash, (y) in Common Shares with a Fair Market Value as of the applicable Vesting Date equal to the dividend equivalents, or (z) in an adjustment to the underlying number of Common Shares subject to the RSUs. | ||||
9. RSUs Nontransferable | The RSUs may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered (a “Transfer”) by you other than by will or by the laws of descent and distribution, pursuant to a qualified domestic relations order or as otherwise permitted under the Plan; provided, that in case of any such permitted transfer, (i) the vesting, forfeiture and clawback provisions shall continue to relate to your Service and any termination thereof and (ii) such transfer shall be subject to such advance notice and other rules and requirements as determined by the Administrator in its sole discretion. Any attempted Transfer of the RSUs contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the RSUs, shall be null and void and without effect. In addition, regardless of any marital property settlement agreement, the Company is not obligated to recognize your former spouse’s interest in your RSUs in any way. |
10. Beneficiary Designation | You may dispose of your RSUs in a written beneficiary designation if authorized by the Company and to the extent such beneficiary designation is valid under applicable law. Any beneficiary designation must be filed with the Company on the proper form. It will be recognized only if it has been received at the Company’s headquarters before your death. If you do not file any beneficiary designation, if the beneficiary designation is not valid or if none of your designated beneficiaries survives you, then your estate will receive any vested RSUs that you hold at the time of your death. |
11. Responsibility for Taxes | (a) Regardless of any action the Company or, if different, the Parent, Subsidiary or Affiliate employing or otherwise retaining you (the “Service Recipient”) takes with respect to any or all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to your participation in the Plan and legally applicable or deemed legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount, if any, actually withheld by the Company and/or the Service Recipient. You further acknowledge that the Company and the Service Recipient (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including, but not limited to, the grant, vesting or settlement of the RSUs, the issuance of Common Shares upon settlement of the RSUs, the subsequent sale of Common Shares acquired pursuant to such issuance and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to, and are under no obligation to, structure the terms of the RSUs or any aspect of the RSUs to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you are subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Service Recipient (or former service recipient, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction. (b) In connection with any relevant taxable or tax withholding event, as applicable, you agree to make adequate arrangements satisfactory to the Company and/or the Service Recipient to satisfy all Tax-Related Items. In this regard, you authorize the Company and/or the Service Recipient, or their respective agents, to satisfy any withholding obligations with regard to Tax-Related Items by one or a combination of the following, as determined by the Administrator: •Withholding the amount of any Tax-Related Items from your wages or other cash compensation payable to you by the Company, any Parent, Subsidiary or Affiliate; •Instructing a brokerage firm selected by the Company for this purpose to sell on your behalf a number of whole Common Shares to be issued to you when the RSUs are settled that the Company determines are appropriate to generate cash proceeds sufficient to satisfy the withholding obligation for Tax-Related Items. This method of satisfying your Tax-Related Items is referred to as “sale to cover.” You acknowledge that the Company or its designee is under no obligation to arrange for such sale at any particular price. Regardless of whether the Company arranges for such sale, you will be responsible for all fees and other costs of sale, and you agree to indemnify and hold the Company harmless from any losses, costs, damages or expenses relating to any such sale; |
•Withholding Common Shares that would otherwise be issued to you when the RSUs are settled equal in value to the withholding obligation for Tax-Related Items. The fair market value of the withheld Common Shares, determined as of the date when taxes otherwise would have been withheld in cash, will be applied to the Tax-Related Items; or •Any other means approved by the Administrator. To the extent the Administrator elects to satisfy the Tax-Related Items by means of a sale-to-cover, you hereby authorize the Company to instruct the broker whom it has selected for this purpose to sell a number of Common Shares to be issued upon settlement of your RSUs necessary to satisfy the withholding obligation for Tax-Related Items. (c) The Company may withhold or account for Tax-Related Items by considering statutory or other withholding rates, including minimum or maximum rates applicable in your jurisdiction(s). In the event of over-withholding, you may receive a refund of any over-withheld amount in cash and will have no entitlement to the equivalent in Common Shares, or, if not refunded, you may be able to seek a refund from the applicable tax authorities. In the event of under-withholding, you may be required to pay additional Tax-Related Items directly to the applicable tax authorities or to the Company or the Service Recipient. If the withholding obligation for Tax-Related Items is satisfied by withholding Common Shares, for tax purposes, you will be deemed to have been issued the full number of Common Shares subject to the RSUs, notwithstanding that a number of Common Shares is held back solely for the purpose of paying the Tax-Related Items. (d) Finally, you shall pay to the Company or the Service Recipient any amount of Tax-Related Items that the Company or the Service Recipient may be required to withhold as a result of your participation in the Plan or your acquisition of Common Shares that cannot be satisfied by the means previously described. The Company may refuse to deliver the Common Shares or proceeds from the sale of such Common Shares, if you fail to comply with your obligations in connection with the Tax-Related Items as described in this section, and you will permanently forfeit the applicable RSUs (and related underlying Common Shares and any related dividend equivalents). |
12. Restrictions on Issuance | (a) The Company will not issue any Common Shares to you if the issuance of Common Shares at that time would violate any law or regulation. (b) Notwithstanding any other provision in the Plan, the Grant Notice or this Agreement, unless there is an available exemption from registration, qualification or other legal requirement applicable to the Common Shares, the Company shall not be required to issue any Common Shares to you prior to the completion of any registration or qualification of the Common Shares under any U.S. or non-U.S. federal, state or local securities law or under rulings or regulations of the U.S. Securities and Exchange Commission (“SEC”) or of any other governmental body, or prior to obtaining any approval or other clearance from any U.S. or non-U.S. federal, state or local governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. You understand that the Company is under no obligation to register or qualify the Common Shares with the SEC or any state securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the Common Shares. | ||||
13. Restrictions on Resale | You agree not to sell any Common Shares at a time when applicable laws, Company policies or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify. | ||||
14. No Retention Rights | Neither your award nor any documentation related thereto (including this Agreement, the Grant Notice and the Plan) gives you the right to be retained by the Company or the Service Recipient in any capacity. The Company and the Service Recipient, as applicable, reserve the right to terminate your Service at any time, with or without cause. |
15. Nature of Grant | By accepting the RSUs, you acknowledge, understand and agree that: •the Plan is established voluntarily by the Company, is wholly discretionary in nature and may be modified, amended, suspended, or terminated by the Company at any time, to the extent permitted by the Plan; •the grant of the RSUs is exceptional, voluntary and occasional and does not create any contractual or other right to receive future grants of restricted stock units, or benefits in lieu of restricted stock units, even if restricted stock units have been granted in the past; •all decisions with respect to future grants of restricted stock units or other grants, if any, will be at the sole discretion of the Company; •you are voluntarily participating in the Plan; •the RSUs and your participation in the Plan shall not create a right of Service with the Company; •the RSUs and any Common Shares acquired under the Plan, and the income from and value of the same, are not intended to replace any pension rights or compensation; •the RSUs and any Common Shares acquired under the Plan, and the income from and value of the same, are not part of normal or expected compensation for any purpose, including but not limited to, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, holiday pay, pension or retirement or welfare benefits or similar payments; •the future value of the Common Shares underlying the RSUs is unknown, indeterminable, and cannot be predicted with certainty; •no claim or entitlement to compensation or damages shall arise from forfeiture of any portion of the RSUs resulting from your termination of Service (for any reason whatsoever and regardless of whether or not later found to be invalid or in breach of employment or other laws in the jurisdiction where you are employed or otherwise rendering services or the terms of your employment or other service agreement, if any); •unless otherwise agreed with the Company in writing, the RSUs and the Common Shares subject to the RSUs, and the income from and value of the same, are not granted as consideration for, or in connection with, the Service you may provide as a director of any Subsidiary or Affiliate; and •neither the Company, the Service Recipient nor any other Parent, Subsidiary or Affiliate shall be liable for any foreign exchange rate fluctuation between your local currency and the U.S. dollar that may affect the value of the RSUs or of any amounts due to you pursuant to the vesting of the RSUs or the subsequent sale of any Common Shares acquired upon settlement of the RSUs. |
16. Data Privacy and Consent | (a) Data Collection and Usage. The Company and the Service Recipient collect, process and use certain personal information about you, including, but not limited to, your name, home address and telephone number, email address, date of birth, social insurance, passport or other identification number, salary, nationality, job title, any shares or directorships held in the Company, details of all stock options or any other entitlement to shares or equivalent benefits awarded, canceled, exercised, vested, unvested or outstanding in your favor (“Data”), for the purpose of implementing, administering and managing the Plan. The legal basis, where required, for the processing of Data is your consent. (b) Stock Plan Administration Service Providers. The Company transfers Data to [INSERT STOCK ADMIN PROVIDER/BROKER NAME] (“Stock Plan Administrator”), an independent service provider based in the United States, which is assisting the Company with the implementation, administration and management of the Plan. The Company may select a different service provider or additional service providers and share Data with such other provider(s) serving in a similar manner. You may be asked to agree on separate terms and data processing practices with the Stock Plan Administrator, with such agreement being a condition to the ability to participate in the Plan. (c) International Data Transfers. The Company and Stock Plan Administrator are based in the United States. Your country or jurisdiction may have different data privacy laws and protections than the United States. The Company’s legal basis, where required, for the transfer of Data is your consent. (d) Data Retention. The Company will hold and use Data only as long as is necessary to implement, administer and manage your participation in the Plan, or as required to comply with legal or regulatory obligations, including under tax, exchange control, securities, labor and other laws. This means Data may be retained until after your Service is terminated. (e) Voluntariness and Consequences of Consent Denial or Withdrawal. Participation in the Plan is voluntary, and you are providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your compensation from or Service with the Service Recipient will not be affected; the only consequence of refusing or withdrawing your consent is that the Company would not be able to grant the RSUs or other awards to you or administer or maintain such awards. (f) Data Subject Rights. You may have a number of rights under data privacy laws in your jurisdiction. Depending on where you are based, such rights may include the right to (i) request access or copies of Data the Company processes, (ii) rectification of incorrect Data, (iii) deletion of Data, (iv) restrictions on processing of Data, (v) portability of Data, (vi) lodge complaints with competent authorities in your jurisdiction, and/or (vii) receive a list with the names and addresses of any potential recipients of Data. To receive clarification regarding these rights or to exercise these rights, you can contact your local human resources representative. |
17. No Advice Regarding Grant | The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding your participation in the Plan, or your acquisition or sale of the underlying Common Shares. You should consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan. | ||||
18. Adjustments | In the event of a stock split, stock dividend, reorganization and recapitalization or a similar change in Company stock, the number of your RSUs will be adjusted pursuant to the Plan. | ||||
19. Effect of Significant Corporate Transactions | If the Company is a party to a merger, consolidation, or certain change in control transactions, then your RSUs will be subject to the applicable provisions of Article 9 of the Plan, provided that any action taken must either (a) preserve the exemption of your RSUs from Code Section 409A or (b) comply with Code Section 409A. | ||||
20. No Fractional Shares | No fractional Common Shares will be issued upon settlement. In lieu of issuing a fractional Common Share resulting from an adjustment of the RSUs pursuant to the Plan or otherwise, the Company shall be entitled to pay to you a cash amount equal to the Fair Market Value of such fractional Common Share. | ||||
21. Recoupment Policy | This award, and the Common Shares acquired upon settlement of this award, shall be subject to recoupment or clawback under any Company policy in effect from time to time, or to the extent required by applicable law in effect at the relevant time (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and/or the rules and regulations of any applicable securities exchange or inter-dealer quotation system on which the Common Shares may be listed or quoted. | ||||
22. Language | You acknowledge that you are sufficiently proficient in English, or have consulted with an advisor who is sufficiently proficient in English, so as to allow you to understand the terms and conditions of this Agreement. If you have received this Agreement, or any other documents related to the Plan translated into a language other than English and if the meaning of the translated version is different from the English version, the English version will control. | ||||
23. Appendix | Notwithstanding any provisions in this Restricted Stock Unit Agreement for Non-U.S. Recipients, the RSUs shall be subject to any additional terms and conditions for your country set forth in the Appendix attached hereto. Moreover, if you relocate to one of the countries included in the Appendix, the additional terms and conditions for such country, if any, will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Appendix constitutes part of this Agreement. | ||||
24. Imposition of Other Requirements | The Company reserves the right to impose other requirements on your participation in the Plan and on any Common Shares acquired under the Plan, if the Company determines it is necessary or advisable for legal or administrative reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. |
25. Insider Trading/Market Abuse | By accepting the RSUs, you acknowledge that you are bound by all the terms and conditions of the Company’s Insider Trading Policy as may be in effect from time to time. You further acknowledge that, depending on your or your broker’s country or the country in which the Common Shares are listed, you may be subject to insider trading restrictions and/or market abuse laws which may affect your ability, directly or indirectly, to accept, acquire, sell or attempt to sell, or otherwise dispose of Common Shares, rights to Common Shares (e.g., RSUs) or rights linked to the value of Common Shares, during such times as you are considered to have “inside information” regarding the Company (as defined by the laws in the applicable jurisdiction(s)). Local insider trading laws and regulations may prohibit the cancelation or amendment of orders you placed before possessing the inside information. Furthermore, you understand that you may be prohibited from (i) disclosing the inside information to any third party, including fellow employees (other than on a “need to know” basis) and (ii) “tipping” third parties by sharing with them Company inside information, or otherwise causing third parties to buy or sell Company securities. Any restrictions under these laws or regulations are separate from and in addition to restrictions that may apply to you under the Company’s Insider Trading Policy as may be in effect from time to time. You acknowledge that it is your responsibility to comply with the Company’s Insider Trading Policy and any applicable regulatory trading restrictions. You should consult with your personal legal advisor on this matter. | ||||
26. Foreign Asset/Account Reporting Requirements | You acknowledge that there may be certain foreign asset and/or account reporting requirements which may affect your ability to acquire or hold Common Shares or cash received from participating in the Plan (including from any dividends or dividend equivalents paid on Common Shares) in a brokerage or bank account outside your country. You may be required to report such accounts, assets, or related transactions to the tax or other authorities in your country. You may also be required to repatriate sale proceeds or other funds received as a result of your participation in the Plan to your country within a certain time after receipt. You acknowledge that it is your responsibility to comply with such regulations and that you should speak with a personal legal advisor on this matter. | ||||
27. Amendment and Waiver | (a) The Administrator, at any time, and from time to time, may amend the terms of the Grant Notice or this Agreement; provided, however, that your rights shall not be materially and adversely affected without your written consent, subject to the provisions in Section 24 above. (b) Any right of the Company contained in the Grant Notice or this Agreement may be waived in writing by the Administrator. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of the Grant Notice or this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach. |
28. Applicable Law; Consent to Jurisdiction; Waiver of Jury Trial | (a) This Agreement and the Grant Notice will be interpreted and enforced under the laws of the State of Delaware without regard to its choice-of-law provisions or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware. (b) You and the Company (on behalf of itself and its Parent, Subsidiaries and Affiliates) each consents to the exclusive jurisdiction in a Delaware state or a federal court sitting in Wilmington, Delaware, and each waives any other requirement (whether imposed by statute, rule of court or otherwise) with respect to personal jurisdiction or service of process and waives any objection to jurisdiction based on improper venue or improper jurisdiction. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY, IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE PLAN, THE GRANT NOTICE OR THIS AGREEMENT. | ||||
29. Successors; Interpretation | The terms of the Grant Notice and this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of you and your beneficiaries, executors, administrators, heirs and successors. The invalidity or unenforceability of any provision of this Agreement (or the Grant Notice, as applicable) shall not affect the validity or enforceability of any other provision of this Agreement (or the Grant Notice, as applicable), and each other provision of this Agreement (or the Grant Notice, as applicable) shall be severable and enforceable to the extent permitted by law. The headings of the sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of the Grant Notice or this Agreement. Pronouns and other words of gender shall be read as gender-neutral. Words importing the plural shall include the singular and the singular shall include the plural. Each of the Grant Notice and this Agreement may be entered into in counterparts. |
30. The Plan and Other Agreements | (a) The text of the Plan is incorporated in this Agreement by reference. The Administrator shall have final authority to interpret and construe the Plan, the Grant Notice and this Agreement and to make any and all determinations under them, and its decision shall be binding and conclusive upon you and all other persons in respect of any questions arising under the Plan, the Grant Notice or this Agreement. (b) The Plan, this Agreement and the Grant Notice constitute the entire understanding between you and the Company regarding this award. Any prior agreements, commitments or negotiations concerning this award are superseded. | ||||
31. Definitions | For purposes of the Grant Notice and this Agreement, the following terms shall have the following meanings: (a) “Closing Date” has the meaning set forth in the Merger Agreement. (b) “Trading Day” means any day on which Common Shares are actually traded on the principal securities exchange or securities market on which the Common Shares are then traded. (c) “VWAP” means, for a Common Share, the dollar volume-weighted average price for a Common Share on the principal securities exchange or securities market on which the Common Shares are then traded during the applicable date(s), as reported by Bloomberg through its “VWAP” or other applicable function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of a Common Share in the over-the-counter market on the electronic bulletin board for such security during the applicable date(s), as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for Common Shares by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for a Common Share as reported by OTC Markets Group Inc. If the VWAP cannot be calculated for Common Shares on such date(s) on any of the foregoing bases (including if the Common Shares are not actually traded on the principal securities exchange or securities market on which the Common Shares are then traded for the relevant determination period), the VWAP of a Common Share on such date(s) shall be the fair market value as determined reasonably and in good faith by a majority of the disinterested independent directors of the Board. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period. |
Name of Recipient: | «Name» | ||||
Total Number of RSUs Granted: | «TotalRSUs» | ||||
Date of Grant: | «DateGrant» | ||||
Vesting Commencement Date | «VestCommDate» | ||||
Vesting Schedule: | 25% of the RSUs subject to this award will vest on the first anniversary of the Vesting Commencement Date and an additional 6.25% of the RSUs subject to this award will vest on each three-month anniversary of the Vesting Commencement Date occurring thereafter (or if there is no corresponding date, on the last day of the applicable month), in each case, subject to your continuous service as an Employee or Consultant (“Service”) through each such vesting date. |
Grant of RSUs | Subject to all of the terms and conditions set forth in the Shapeways Holdings, Inc. 2021 Equity Incentive Plan (the “Plan”), the Notice of Restricted Stock Unit Award (the “Grant Notice”), and this Restricted Stock Unit Agreement (the “Agreement”), the Company has granted to you the number of RSUs set forth in the Grant Notice. All capitalized terms used in this Agreement shall have the meanings assigned to them in this Agreement, the Grant Notice or the Plan, as applicable. | ||||
Nature of RSUs | Your RSUs are bookkeeping entries. They represent only the Company’s unfunded and unsecured promise to issue Common Shares on a future date, subject to the terms and conditions of this Agreement, the Grant Notice and the Plan. As a holder of RSUs, you have no rights other than the rights of a general creditor of the Company. | ||||
Payment for RSUs | No payment is required for the RSUs that you are receiving. | ||||
Vesting | The RSUs vest in accordance with the vesting schedule set forth in the Grant Notice. In no event will any additional RSUs vest after your Service has terminated for any reason unless expressly provided in a written agreement between you and the Company. The Company determines whether and when your Service terminates for all purposes of your RSUs. | ||||
Termination of Service/Forfeiture | If your Service terminates for any reason, then your RSUs will be forfeited to the extent that they have not vested before the termination date and do not vest as a result of the termination of your Service. This means that any RSUs that have not vested under this Agreement will be cancelled immediately. You will receive no payment for RSUs that are forfeited. |
Leaves of Absence and Part-Time Work | For purposes of this award, your Service does not terminate when you go on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing. However, except as otherwise determined by the Company, your Service terminates when the approved leave ends, unless you immediately return to active work. If you go on an unpaid leave of absence that lasts more than thirty days, then, to the extent permitted by applicable law, the vesting schedule specified in the Grant Notice will be suspended on the thirty-first day of such unpaid leave, and this award will not vest with respect to any additional RSUs during the remainder of such leave. Vesting will resume when you return to active Service. If you go on a paid leave of absence, the vesting schedule specified in the Grant Notice may be suspended and/or adjusted in accordance with the Company’s leave of absence policy or the terms of your leave. If you commence working on a part-time basis, the Company may adjust the vesting schedule so that the rate of vesting is commensurate with your reduced work schedule. | ||||
Settlement of RSUs | Each RSU will be settled as soon as practicable on or following the date when it vests, and in any event within the “short-term deferral period” as defined under Code Section 409A. At the Administrator’s discretion, settlement may occur on fixed dates established by the Administrator for settlement of RSUs. In no event will you be permitted, directly or indirectly, to specify the taxable year of settlement of any RSUs subject to this award. At the time of settlement, you will receive one Common Share for each vested RSU (plus payment of any dividend equivalents). | ||||
Section 409A | Settlement of these RSUs is intended to be exempt from the application of Code Section 409A pursuant to the “short-term deferral” exemption under Treasury Regulation Section 1.409A-1(b)(4), and this Agreement and the Grant Notice shall be administered and interpreted in a manner that complies with such exemption. Notwithstanding the foregoing, if it is determined that settlement of these RSUs is not exempt from Code Section 409A and the Company determines that you are a “specified employee,” as defined in the regulations under Code Section 409A at the time of your “separation from service,” as defined in Treasury Regulation Section 1.409A-1(h), then this paragraph will apply. If this paragraph applies, and the event triggering settlement is your “separation from service,” then any RSUs that otherwise would have been settled during the first six months following your “separation from service” will instead be settled on the first business day following the earlier of (i) the six-month anniversary of your separation from service or (ii) your death. Each installment of RSUs that vests is hereby designated as a separate payment for purposes of Code Section 409A. |
No Voting Rights; Dividend Equivalents | Your RSUs carry neither voting rights nor rights to cash dividends. You have no rights as a stockholder of the Company unless and until your RSUs are settled by issuing Common Shares. Each of your RSUs shall be credited with dividend equivalents, which shall be withheld by the Company for your account. Dividend equivalents credited to your account and attributable to an RSU shall be distributed (without interest) to you at the same time as the underlying Common Share is delivered upon settlement of such RSU and if such RSU is forfeited, you shall have no right to such dividend equivalents. Dividend equivalents may be payable, in the discretion of the Company, (x) in cash, (y) in Common Shares with a Fair Market Value as of the date the RSUs are settled equal to the dividend equivalents, or (z) in an adjustment to the underlying number of Common Shares subject to the RSUs. | ||||
RSUs Nontransferable | The RSUs may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered (a “Transfer”) by you other than by will or by the laws of descent and distribution, to your family members, a trust or entity established by you for estate planning purposes, a charitable organization designated by you, pursuant to a qualified domestic relations order or as otherwise permitted under the Plan; provided, that in case of any such permitted transfer, (i) the vesting, forfeiture and clawback provisions shall continue to relate to your Service and any termination thereof and (ii) such transfer shall be subject to such advance notice and other rules and requirements as determined by the Administrator in its sole discretion. Any attempted Transfer of the RSUs contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the RSUs, shall be null and void and without effect. In addition, regardless of any marital property settlement agreement, the Company is not obligated to recognize your former spouse’s interest in your RSUs in any way. | ||||
Beneficiary Designation | You may dispose of your RSUs in a written beneficiary designation if authorized by the Company and to the extent such beneficiary designation is valid under applicable law. Any beneficiary designation must be filed with the Company on the proper form. It will be recognized only if it has been received at the Company’s headquarters before your death. If you do not file any beneficiary designation or if none of your designated beneficiaries survives you, then your estate will receive any vested RSUs that you hold at the time of your death. |
Withholding Taxes | Regardless of any action the Company (or, if applicable, the Parent, Subsidiary or Affiliate employing or retaining you (the “Employer”)) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related items related to the participation in the Plan and legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount actually withheld by the Company and/or the Employer. You further acknowledge that the Company and the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including, but not limited to, the grant or vesting of the RSUs, the issuance of Common Shares upon vesting of the RSUs, the subsequent sale of Common Shares acquired pursuant to such issuance and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the RSUs or any aspect of the RSUs to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you are subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer may be required to withhold or account for Tax-Related Items in more than one jurisdiction. No Common Shares will be distributed to you pursuant to the RSUs unless you have made arrangements satisfactory to the Company and/or the Employer for the payment of any Tax-Related Items that the Company and/or the Employer determine must be withheld. In this regard, you authorize the Company to satisfy your Tax-Related Items by one or a combination of the following, as determined by the Administrator. •Withholding the amount of any Tax-Related Items from your wages or other cash compensation paid to you by the Company and/or the Employer; •Instructing a brokerage firm selected by the Company for this purpose to sell on your behalf a number of whole shares of Company stock to be issued to you when the RSUs are settled that the Company determines are appropriate to generate cash proceeds sufficient to satisfy the Tax-Related Items. This method of satisfying your Tax-Related Items is referred to as “sale-to-cover”. You acknowledge that the Company or its designee is under no obligation to arrange for such sale at any particular price. Regardless of whether the Company arranges for such sale, you will be responsible for all fees and other costs of sale, and you agree to indemnify and hold the Company harmless from any losses, costs, damages or expenses relating to any such sale; •Withholding Common Shares that would otherwise be issued to you when the RSUs are settled equal in value to the Tax-Related Items. The fair market value of the withheld Common Shares, determined as of the date when taxes otherwise would have been withheld in cash, will be applied to the Tax-Related Items; or •Any other means approved by the Administrator. |
To the extent the Administrator elects to satisfy the Tax-Related Items by means of sale-to-cover, you hereby authorize the Company to instruct the broker whom it has selected for this purpose to sell a number of Common Shares to be issued upon settlement of your RSUs necessary to satisfy the Tax-Related Items. You agree to pay to the Company in cash any amount of Tax-Related Items that the Company does not elect to satisfy by the means described above. To the extent you fail to make satisfactory arrangements for the payment of any required withholding taxes, you will permanently forfeit the applicable RSUs (and related underlying Common Shares and any related dividend equivalents). | |||||
Restrictions on Issuance | The Company will not issue any Common Shares to you if the issuance of Common Shares at that time would violate any law or regulation. Notwithstanding any other provision in the Plan, the Grant Notice or this Agreement, unless there is an available exemption from registration, qualification or other legal requirement applicable to the Common Shares, the Company shall not be required to issue any Common Shares to you prior to the completion of any registration or qualification of the Common Shares under any federal, state, local or foreign securities law or under rulings or regulations of the Securities and Exchange Commission (“SEC”) or of any other governmental body, or prior to obtaining any approval or other clearance from any federal, state, local or foreign governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. You understand that the Company is under no obligation to register or qualify the Company’s shares with the SEC or any state securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the shares. | ||||
Restrictions on Resale | You agree not to sell any shares at a time when applicable laws, Company policies or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify. | ||||
No Retention Rights | Neither your award nor any documentation related thereto (including this Agreement, the Grant Notice and the Plan) gives you the right to be retained by the Company, a Parent, a Subsidiary or an Affiliate in any capacity. The Company and its Parents, Subsidiaries and Affiliates reserve the right to terminate your Service at any time, with or without cause. | ||||
Adjustments | In the event of a stock split, stock dividend, reorganization and recapitalization or a similar change in Company stock, the number of your RSUs will be adjusted pursuant to the Plan. | ||||
Effect of Significant Corporate Transactions | If the Company is a party to a merger, consolidation, or certain change in control transactions, then your RSUs will be subject to the applicable provisions of Article 9 of the Plan, provided that any action taken must either (a) preserve the exemption of your RSUs from Code Section 409A or (b) comply with Code Section 409A. | ||||
No Fractional Shares | No fractional Common Shares will be issued upon settlement. In lieu of issuing a fractional Common Share resulting from an adjustment of the RSUs pursuant to the Plan or otherwise, the Company shall be entitled to pay to you a cash amount equal to the Fair Market Value of such fractional Common Share. |
Recoupment Policy | This award, and the Common Shares acquired upon settlement of this award, shall be subject to recoupment or clawback under any Company policy in effect from time to time, or to the extent required by applicable law in effect at the relevant time (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and/or the rules and regulations of any applicable securities exchange or inter-dealer quotation system on which the Common Shares may be listed or quoted. | ||||
Amendment and Waiver | The Administrator, at any time, and from time to time, may amend the terms of the Grant Notice or this Agreement; provided, however, that your rights shall not be materially and adversely affected without your written consent. Any right of the Company contained in the Grant Notice or this Agreement may be waived in writing by the Administrator. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of the Grant Notice or this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach. | ||||
Applicable Law; Consent to Jurisdiction; Waiver of Jury Trial | This Agreement and the Grant Notice will be interpreted and enforced under the laws of the State of Delaware without regard to its choice-of-law provisions or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware. You and the Company (on behalf of itself and its Affiliates) each consents to jurisdiction in a Delaware state or a federal court sitting in Wilmington, Delaware, and each waives any other requirement (whether imposed by statute, rule of court or otherwise) with respect to personal jurisdiction or service of process and waives any objection to jurisdiction based on improper venue or improper jurisdiction. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY, IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE PLAN, THE GRANT NOTICE OR THIS AGREEMENT. |
Successors; Interpretation | The terms of the Grant Notice and this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of you and your beneficiaries, executors, administrators, heirs and successors. The invalidity or unenforceability of any provision of this Agreement (or the Grant Notice, as applicable) shall not affect the validity or enforceability of any other provision of this Agreement (or the Grant Notice, as applicable), and each other provision of this Agreement (or the Grant Notice, as applicable) shall be severable and enforceable to the extent permitted by law. The headings of the sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of the Grant Notice or this Agreement. Pronouns and other words of gender shall be read as gender-neutral. Words importing the plural shall include the singular and the singular shall include the plural. Each of the Grant Notice and this Agreement may be entered into in counterparts. | ||||
The Plan and Other Agreements | The text of the Plan is incorporated in this Agreement by reference. The Administrator shall have final authority to interpret and construe the Plan, the Grant Notice and this Agreement and to make any and all determinations under them, and its decision shall be binding and conclusive upon you and all other persons in respect of any questions arising under the Plan, the Grant Notice or this Agreement. The Plan, this Agreement and the Grant Notice constitute the entire understanding between you and the Company regarding this award. Any prior agreements, commitments or negotiations concerning this award are superseded. Notwithstanding any provisions in the Grant Notice or this Agreement, if you are located outside of the United States, the RSUs shall be subject to any special terms, conditions or notifications for your country. Moreover, if you relocate to another country, any special terms and conditions for such country will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable in order to comply with local law or facilitate the administration of the Plan. |
Name of Recipient: | «Name» | ||||
Total Number of RSUs Granted: | «TotalRSUs» | ||||
Date of Grant: | «DateGrant» | ||||
Vesting Commencement Date | «VestCommDate» | ||||
Vesting Schedule: | Initial Grant: | ||||
1/3 of the RSUs subject to this award will vest on each of the first, second and third anniversary of the Vesting Commencement Date (or if there is no corresponding date, the last day of the applicable month), in each case subject to your continuous service as an Outside Director (“Service”) through each such vesting date. In addition, if the Company is subject to a Change in Control (as defined in the Plan) before your Service terminates, the RSUs subject to this award will vest in full upon the effective date of such transaction. | |||||
Annual Grant: | |||||
The RSUs subject to this award will vest in a single installment on the earlier of (i) the date of the next annual meeting of stockholders following the Date of Grant or (ii) the one-year anniversary of the Date of Grant (or if there is no corresponding date, the last date of the month), subject to your continuous service as an Outside Director (“Service”) through such date. In addition, if the Company is subject to a Change in Control (as defined in the Plan) before your Service terminates, the RSUs subject to this award will vest in full upon the effective date of such transaction. | |||||
Grant of RSUs | Subject to all of the terms and conditions set forth in the Shapeways Holdings, Inc. 2021 Equity Incentive Plan (the “Plan”), the Notice of Restricted Stock Unit Award (the “Grant Notice”), and this Restricted Stock Unit Agreement (the “Agreement”), the Company has granted to you the number of RSUs set forth in the Grant Notice. All capitalized terms used in this Agreement shall have the meanings assigned to them in this Agreement, the Grant Notice or the Plan, as applicable. | ||||
Nature of RSUs | Your RSUs are bookkeeping entries. They represent only the Company’s unfunded and unsecured promise to issue Common Shares on a future date, subject to the terms and conditions of this Agreement, the Grant Notice and the Plan. As a holder of RSUs, you have no rights other than the rights of a general creditor of the Company. | ||||
Payment for RSUs | No payment is required for the RSUs that you are receiving. | ||||
Vesting | The RSUs vest in accordance with the vesting schedule set forth in the Grant Notice. In no event will any additional RSUs vest after your Service has terminated for any reason unless expressly provided in a written agreement between you and the Company. The Company determines whether and when your Service terminates for all purposes of your RSUs. | ||||
Termination of Service/Forfeiture | If your Service terminates for any reason, then your RSUs will be forfeited to the extent that they have not vested before the termination date and do not vest as a result of the termination of your Service. This means that any RSUs that have not vested under this Agreement will be cancelled immediately. You will receive no payment for RSUs that are forfeited. | ||||
Settlement of RSUs | Each RSU will be settled as soon as practicable on or following the date when it vests, and in any event within the “short-term deferral period” as defined under Code Section 409A. In no event will you be permitted, directly or indirectly, to specify the taxable year of settlement of any RSUs subject to this award. At the time of settlement, you will receive one Common Share for each vested RSU (plus payment of any dividend equivalents). |
Section 409A | Settlement of these RSUs is intended to be exempt from the application of Code Section 409A pursuant to the “short-term deferral” exemption under Treasury Regulation Section 1.409A-1(b)(4), and this Agreement and the Grant Notice shall be administered and interpreted in a manner that complies with such exemption. Notwithstanding the foregoing, if it is determined that settlement of these RSUs is not exempt from Code Section 409A and the Company determines that you are a “specified employee,” as defined in the regulations under Code Section 409A at the time of your “separation from service,” as defined in Treasury Regulation Section 1.409A-1(h), then this paragraph will apply. If this paragraph applies, and the event triggering settlement is your “separation from service,” then any RSUs that otherwise would have been settled during the first six months following your “separation from service” will instead be settled on the first business day following the earlier of (i) the six-month anniversary of your separation from service or (ii) your death. Each installment of RSUs that vests is hereby designated as a separate payment for purposes of Code Section 409A. | ||||
No Voting Rights; Dividend Equivalents | Your RSUs carry neither voting rights nor rights to cash dividends. You have no rights as a stockholder of the Company unless and until your RSUs are settled by issuing Common Shares. Each of your RSUs shall be credited with dividend equivalents, which shall be withheld by the Company for your account. Dividend equivalents credited to your account and attributable to an RSU shall be distributed (without interest) to you at the same time as the underlying Common Share is delivered upon settlement of such RSU and if such RSU is forfeited, you shall have no right to such dividend equivalents. Dividend equivalents may be payable, in the discretion of the Company, (x) in cash, (y) in Common Shares with a Fair Market Value as of the date the RSUs are settled equal to the dividend equivalents, or (z) in an adjustment to the underlying number of Common Shares subject to the RSUs. | ||||
RSUs Nontransferable | The RSUs may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered (a “Transfer”) by you other than by will or by the laws of descent and distribution, to your family members, a trust or entity established by you for estate planning purposes, a charitable organization designated by you, pursuant to a qualified domestic relations order or as otherwise permitted under the Plan; provided, that in case of any such permitted transfer, (i) the vesting, forfeiture and clawback provisions shall continue to relate to your Service and any termination thereof and (ii) such transfer shall be subject to such advance notice and other rules and requirements as determined by the Administrator in its sole discretion. Any attempted Transfer of the RSUs contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the RSUs, shall be null and void and without effect. In addition, regardless of any marital property settlement agreement, the Company is not obligated to recognize your former spouse’s interest in your RSUs in any way. |
Beneficiary Designation | You may dispose of your RSUs in a written beneficiary designation if authorized by the Company and to the extent such beneficiary designation is valid under applicable law. Any beneficiary designation must be filed with the Company on the proper form. It will be recognized only if it has been received at the Company’s headquarters before your death. If you do not file any beneficiary designation or if none of your designated beneficiaries survives you, then your estate will receive any vested RSUs that you hold at the time of your death. | ||||
Withholding Taxes | Regardless of any action the Company (or, if applicable, the Parent, Subsidiary or Affiliate employing or retaining you (the “Employer”)) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related items related to the participation in the Plan and legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount actually withheld by the Company and/or the Employer. You further acknowledge that the Company and the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including, but not limited to, the grant or vesting of the RSUs, the issuance of Common Shares upon vesting of the RSUs, the subsequent sale of Common Shares acquired pursuant to such issuance and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the RSUs or any aspect of the RSUs to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you are subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer may be required to withhold or account for Tax-Related Items in more than one jurisdiction. No Common Shares will be distributed to you pursuant to the RSUs unless you have made arrangements satisfactory to the Company and/or the Employer for the payment of any Tax-Related Items that the Company and/or the Employer determine must be withheld. In this regard, you authorize the Company to satisfy your Tax-Related Items by one or a combination of the following, as determined by the Administrator. |
•Withholding the amount of any Tax-Related Items from your wages or other cash compensation paid to you by the Company and/or the Employer; •Instructing a brokerage firm selected by the Company for this purpose to sell on your behalf a number of whole shares of Company stock to be issued to you when the RSUs are settled that the Company determines are appropriate to generate cash proceeds sufficient to satisfy the Tax-Related Items. This method of satisfying your Tax-Related Items is referred to as “sale-to-cover”. You acknowledge that the Company or its designee is under no obligation to arrange for such sale at any particular price. Regardless of whether the Company arranges for such sale, you will be responsible for all fees and other costs of sale, and you agree to indemnify and hold the Company harmless from any losses, costs, damages or expenses relating to any such sale; •Withholding Common Shares that would otherwise be issued to you when the RSUs are settled equal in value to the Tax-Related Items. The fair market value of the withheld Common Shares, determined as of the date when taxes otherwise would have been withheld in cash, will be applied to the Tax-Related Items; or •Any other means approved by the Administrator. | |||||
To the extent the Administrator elects to satisfy the Tax-Related Items by means of sale-to-cover, you hereby authorize the Company to instruct the broker whom it has selected for this purpose to sell a number of Common Shares to be issued upon settlement of your RSUs necessary to satisfy the Tax-Related Items. You agree to pay to the Company in cash any amount of Tax-Related Items that the Company does not elect to satisfy by the means described above. To the extent you fail to make satisfactory arrangements for the payment of any required withholding taxes, you will permanently forfeit the applicable RSUs (and related underlying Common Shares and any related dividend equivalents). | |||||
Restrictions on Issuance | The Company will not issue any Common Shares to you if the issuance of Common Shares at that time would violate any law or regulation. Notwithstanding any other provision in the Plan, the Grant Notice or this Agreement, unless there is an available exemption from registration, qualification or other legal requirement applicable to the Common Shares, the Company shall not be required to issue any Common Shares to you prior to the completion of any registration or qualification of the Common Shares under any federal, state, local or foreign securities law or under rulings or regulations of the Securities and Exchange Commission (“SEC”) or of any other governmental body, or prior to obtaining any approval or other clearance from any federal, state, local or foreign governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. You understand that the Company is under no obligation to register or qualify the Company’s shares with the SEC or any state securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the shares. |
Restrictions on Resale | You agree not to sell any shares at a time when applicable laws, Company policies or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify. | ||||
No Retention Rights | Neither your award nor any documentation related thereto (including this Agreement, the Grant Notice and the Plan) gives you the right to be retained by the Company, a Parent, a Subsidiary or an Affiliate in any capacity. The Company and its Parents, Subsidiaries and Affiliates reserve the right to terminate your Service at any time, with or without cause. | ||||
Adjustments | In the event of a stock split, stock dividend, reorganization and recapitalization or a similar change in Company stock, the number of your RSUs will be adjusted pursuant to the Plan. | ||||
Effect of Significant Corporate Transactions | If the Company is a party to a merger, consolidation, or certain change in control transactions, then your RSUs will be subject to the applicable provisions of Article 9 of the Plan, provided that any action taken must either (a) preserve the exemption of your RSUs from Code Section 409A or (b) comply with Code Section 409A. | ||||
No Fractional Shares | No fractional Common Shares will be issued upon settlement. In lieu of issuing a fractional Common Share resulting from an adjustment of the RSUs pursuant to the Plan or otherwise, the Company shall be entitled to pay to you a cash amount equal to the Fair Market Value of such fractional Common Share. | ||||
Recoupment Policy | This award, and the Common Shares acquired upon settlement of this award, shall be subject to recoupment or clawback under any Company policy in effect from time to time, or to the extent required by applicable law in effect at the relevant time (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and/or the rules and regulations of any applicable securities exchange or inter-dealer quotation system on which the Common Shares may be listed or quoted. | ||||
Amendment and Waiver | The Administrator, at any time, and from time to time, may amend the terms of the Grant Notice or this Agreement; provided, however, that your rights shall not be materially and adversely affected without your written consent. Any right of the Company contained in the Grant Notice or this Agreement may be waived in writing by the Administrator. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of the Grant Notice or this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach. |
Applicable Law; Consent to Jurisdiction; Waiver of Jury Trial | This Agreement and the Grant Notice will be interpreted and enforced under the laws of the State of Delaware without regard to its choice-of-law provisions or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware. You and the Company (on behalf of itself and its Affiliates) each consents to jurisdiction in a Delaware state or a federal court sitting in Wilmington, Delaware, and each waives any other requirement (whether imposed by statute, rule of court or otherwise) with respect to personal jurisdiction or service of process and waives any objection to jurisdiction based on improper venue or improper jurisdiction. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY, IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE PLAN, THE GRANT NOTICE OR THIS AGREEMENT. | ||||
Successors; Interpretation | The terms of the Grant Notice and this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of you and your beneficiaries, executors, administrators, heirs and successors. The invalidity or unenforceability of any provision of this Agreement (or the Grant Notice, as applicable) shall not affect the validity or enforceability of any other provision of this Agreement (or the Grant Notice, as applicable), and each other provision of this Agreement (or the Grant Notice, as applicable) shall be severable and enforceable to the extent permitted by law. The headings of the sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of the Grant Notice or this Agreement. Pronouns and other words of gender shall be read as gender-neutral. Words importing the plural shall include the singular and the singular shall include the plural. Each of the Grant Notice and this Agreement may be entered into in counterparts. | ||||
The Plan and Other Agreements | The text of the Plan is incorporated in this Agreement by reference. The Administrator shall have final authority to interpret and construe the Plan, the Grant Notice and this Agreement and to make any and all determinations under them, and its decision shall be binding and conclusive upon you and all other persons in respect of any questions arising under the Plan, the Grant Notice or this Agreement. The Plan, this Agreement and the Grant Notice constitute the entire understanding between you and the Company regarding this award. Any prior agreements, commitments or negotiations concerning this award are superseded. Notwithstanding any provisions in the Grant Notice or this Agreement, if you are located outside of the United States, the RSUs shall be subject to any special terms, conditions or notifications for your country. Moreover, if you relocate to another country, any special terms and conditions for such country will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable in order to comply with local law or facilitate the administration of the Plan. |
Name of Recipient: | «Name»1 | ||||
Total Number of RSUs Granted: | «TotalRSUs»2 | ||||
Date of Grant: | «DateGrant»3 | ||||
[Vesting Commencement Date:4 | <<Vest-ComDate>>] | ||||
Expiration Date: | [______ __, ____]5 | ||||
Vesting: | Two vesting requirements must be satisfied on or before the Expiration Date specified above in order for an RSU to vest: | ||||
(i) a requirement that you provide continuous Service over the period of time set forth in “Service-Based Condition” below; and | |||||
(ii) a requirement that the applicable “RSU Performance Milestone,” as set forth below, is satisfied. As described below, the RSU Performance Milestones will be satisfied as to 50% of the RSUs upon the achievement of the First RSU Performance Milestone (as defined below), and as to the remaining 50% The requirements described in the foregoing clauses (i) and (ii) are collectively referred to herein as the “Vesting Requirements.” |
For clarity, if the Service-Based Condition is satisfied for any RSUs prior to satisfaction of any RSU Performance Milestone, (i) such RSUs shall remain outstanding and eligible to vest upon the satisfaction of the applicable RSU Performance Milestones on or before the Expiration Date and (ii) if, subsequently, the First RSU Performance Milestone (as defined below) is achieved on or before the Expiration Date but the Second RSU Performance Milestone (as defined below) has not yet been achieved, then 50% of such RSUs shall vest upon satisfaction of the First RSU Performance Milestone and the remaining 50% of such RSUs shall remain outstanding and eligible to vest upon the satisfaction of the Second RSU Performance Milestone on or before the Expiration Date. | |||||
If, prior to the satisfaction of the Service-Based Condition for any RSUs, the First RSU Performance Milestone (but not the Second RSU Performance Milestone) has been achieved, then upon satisfaction of the Service-Based Condition for such RSUs, 50% of the RSUs eligible to vest upon the applicable Service Date (as defined below) shall become vested, and the remaining 50% of the RSUs eligible to vest upon such Service Date shall remain outstanding and eligible to vest upon the upon the satisfaction of the Second RSU Performance Milestone on or before the Expiration Date. | |||||
If, prior to the satisfaction of the Service-Based Condition for any RSUs, both the First RSU Performance Milestone and the Second RSU Performance Milestone have been achieved, then upon satisfaction of the Service-Based Condition for such RSUs, 100% of the RSUs eligible to vest upon the applicable Service Date shall become vested. | |||||
The “Vesting Date” of a given RSU will be the first date on or before the Expiration Date upon which all Vesting Requirements are satisfied with respect to that particular RSU. | |||||
A given RSU will not vest if any Vesting Requirement fails to be satisfied with respect to that RSU on or before the Expiration Date. Such RSU shall be forfeited as of (x) the Expiration Date or (y) your earlier termination of Service that results in such forfeiture in accordance with the Restricted Stock Unit Agreement, as the case may be. Upon such forfeiture, you will have no further rights with respect to such forfeited RSU or the Common Share covered thereby. |
Service-Based Condition:6 | [Version 1: The Service-Based Condition has been satisfied with respect to all of your RSUs as of the Date of Grant. The “Service Date” for purposes of this Agreement shall mean the Date of Grant.] | ||||
[Version 2: The Service-Based Condition will be satisfied (i) with respect to the first 25% of the RSUs on the [12-month] [6-month] anniversary of the Vesting Commencement Date and (ii) monthly thereafter with respect to 1/48th of the RSUs, provided you remain in continuous Service through each such date (each, a “Service Date”).] | |||||
[Version 3: The Service-Based Condition will be satisfied with respect to [1/__th] of the RSUs on the monthly anniversary of the Vesting Commencement Date, provided you remain in continuous Service through each such date (each, a “Service Date”).] | |||||
RSU Performance Milestones: | The “First RSU Performance Milestone” will be satisfied if and when the VWAP of the Common Shares equals or exceeds $14.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations and similar transactions after the Closing) for 30 consecutive Trading Days occurring during the period beginning on the Closing Date and ending on the Expiration Date. | ||||
The “Second RSU Performance Milestone” will be satisfied if and when the VWAP of the Common Shares equals or exceeds $16.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations and similar transactions after the Closing) for 30 consecutive Trading Days occurring during the period beginning on the Closing Date and ending on the Expiration Date. | |||||
For the avoidance of doubt, if the Second RSU Performance Milestone has been achieved on or prior to the Expiration Date, then the First RSU Performance Milestone (if not already satisfied) will have also been achieved upon satisfaction of the Second RSU Performance Milestone, such that, upon achievement of the Second RSU Performance Milestone, both RSU Performance Milestones shall be considered satisfied for all RSUs granted hereunder. |
1. Grant of RSUs | Subject to all of the terms and conditions set forth in the Shapeways Holdings, Inc. 2021 Equity Incentive Plan (the “Plan”), the Notice of Restricted Stock Unit Award (the “Grant Notice”), and this Restricted Stock Unit Agreement (the “Agreement”), the Company has granted to you the number of RSUs set forth in the Grant Notice. All capitalized terms used in this Agreement shall have the meanings assigned to them in this Agreement, the Grant Notice or the Plan, as applicable. | ||||
2. Nature of RSUs | Your RSUs are bookkeeping entries. They represent only the Company’s unfunded and unsecured promise to issue Common Shares on a future date, subject to the terms and conditions of this Agreement, the Grant Notice and the Plan. As a holder of RSUs, you have no rights other than the rights of a general creditor of the Company. | ||||
3. Vesting | The RSUs vest in accordance with the vesting schedule set forth in the Grant Notice. | ||||
4. Settlement of RSUs | (a) Each vested RSU shall be settled as soon as practicable on or following the applicable Vesting Date, and in any event within the “short-term deferral period” as defined under Code Section 409A. In no event will you be permitted, directly or indirectly, to specify the taxable year of settlement of any RSUs subject to this award. (b) At the time of settlement, you will receive one Common Share for each vested RSU (plus payment of any dividend equivalents pursuant to Section 8). | ||||
5. Termination of Service; Expiration | (a) Except (x) as otherwise determined by the Administrator or (y) expressly provided in an employment, consulting or other written agreement between you and the Company and/or one of its Subsidiaries or Affiliates, any RSUs for which the Service-Based Condition has not been satisfied as of your termination of Service shall be forfeited and cancelled without payment. (b) If your Service terminates before one or more of the RSU Performance Milestones has been met, then the portion of your RSUs for which the Service-Based Condition has been satisfied (taking into account any acceleration pursuant to Section 5(a), as applicable) shall remain outstanding and eligible to vest upon achievement of the applicable RSU Performance Milestones. (c) If any RSU Performance Milestone fails to be satisfied by the Expiration Date, then the corresponding RSUs shall be forfeited and cancelled without payment as of the Expiration Date. |
6. Leaves of Absence and Part-Time Work | (a) For purposes of this award, except as set forth in subsection (b) below, your Service does not terminate when you go on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing. Your Service will be deemed terminated for purposes of this award when the approved leave ends, unless you immediately return to active work. (b) If you go on a leave of absence that lasts more than 30 days, then, to the extent permitted by applicable law, the Company may adjust or suspend the schedule of Service Dates under the Service-Based Condition specified in the Grant Notice. (c) If you commence working on a part-time basis, the Company may adjust the vesting schedule so that the rate of vesting is commensurate with your reduced work schedule. | ||||
7. Section 409A | (a) These RSUs are intended to be exempt from the application of Code Section 409A pursuant to the “short-term deferral” exemption under Treasury Regulation Section 1.409A-1(b)(4), and this Agreement and the Grant Notice shall be administered and interpreted in a manner that complies with such exemption. (b) Notwithstanding the foregoing, if it is determined that settlement of these RSUs is not exempt from Code Section 409A and the Company determines that you are a “specified employee,” as defined in the regulations under Code Section 409A at the time of your “separation from service” from the Company and its Affiliates, as such term is defined in Treasury Regulation Section 1.409A-1(h), then this paragraph will apply. If this paragraph applies, and the event triggering settlement is your “separation from service” from the Company and its Affiliates, then any RSUs that otherwise would have been settled during the first six months following your “separation from service” will instead be settled on the first business day following the earlier of (i) the six-month anniversary of your separation from service or (ii) your death. (c) Each installment of RSUs that is settled after vesting is hereby designated as a separate payment for purposes of Code Section 409A. | ||||
8. No Voting Rights; Dividend Equivalents | Your RSUs carry neither voting rights nor rights to cash dividends. You have no rights as a stockholder of the Company unless and until your RSUs are settled by issuing Common Shares. Each of your RSUs shall be credited with dividend equivalents, which shall be withheld by the Company for your account. Dividend equivalents credited to your account and attributable to an RSU shall be distributed (without interest) to you at the same time as the underlying Common Share is delivered upon settlement of such RSU and, if such RSU is forfeited, you shall have no right to such dividend equivalents. Dividend equivalents may be payable, in the discretion of the Company, (x) in cash, (y) in Common Shares with a Fair Market Value as of the applicable Vesting Date equal to the dividend equivalents, or (z) in an adjustment to the underlying number of Common Shares subject to the RSUs. |
9. RSUs Nontransferable | The RSUs may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered (a “Transfer”) by you other than by will or by the laws of descent and distribution, to your family members, a trust or entity established by you for estate planning purposes, a charitable organization designated by you, pursuant to a qualified domestic relations order or as otherwise permitted under the Plan; provided, that in case of any such permitted transfer, (i) the vesting, forfeiture and clawback provisions shall continue to relate to your Service and any termination thereof and (ii) such transfer shall be subject to such advance notice and other rules and requirements as determined by the Administrator in its sole discretion. Any attempted Transfer of the RSUs contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the RSUs, shall be null and void and without effect. In addition, regardless of any marital property settlement agreement, the Company is not obligated to recognize your former spouse’s interest in your RSUs in any way. | ||||
10. Beneficiary Designation | You may dispose of your RSUs in a written beneficiary designation if authorized by the Company and to the extent such beneficiary designation is valid under applicable law. Any beneficiary designation must be filed with the Company on the proper form. It will be recognized only if it has been received at the Company’s headquarters before your death. If you do not file any beneficiary designation or if none of your designated beneficiaries survives you, then your estate will receive any vested RSUs that you hold at the time of your death. |
11. Withholding Taxes | (a) Regardless of any action the Company (or, if applicable, the Parent, Subsidiary or Affiliate employing or retaining you (the “Employer”)) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related items related to the participation in the Plan and legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount actually withheld by the Company and/or the Employer. You further acknowledge that the Company and the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including, but not limited to, the grant or vesting of the RSUs, the issuance of Common Shares upon vesting of the RSUs, the subsequent sale of Common Shares acquired pursuant to such issuance and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the RSUs or any aspect of the RSUs to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you are subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer may be required to withhold or account for Tax-Related Items in more than one jurisdiction. (b) No Common Shares will be distributed to you pursuant to the RSUs unless you have made arrangements satisfactory to the Company and/or the Employer for the payment of any Tax-Related Items that the Company and/or the Employer determine must be withheld. In this regard, you authorize the Company to satisfy your Tax-Related Items by one or a combination of the following, as determined by the [Administrator] [Company]: •Withholding the amount of any Tax-Related Items from your wages or other cash compensation paid to you by the Company and/or the Employer; •Instructing a brokerage firm selected by the Company for this purpose to sell on your behalf a number of whole shares of Company stock to be issued to you when the RSUs are settled that the Company determines are appropriate to generate cash proceeds sufficient to satisfy the Tax-Related Items. This method of satisfying your Tax-Related Items is referred to as “sale to cover”. You acknowledge that the Company or its designee is under no obligation to arrange for such sale at any particular price. Regardless of whether the Company arranges for such sale, you will be responsible for all fees and other costs of sale, and you agree to indemnify and hold the Company harmless from any losses, costs, damages or expenses relating to any such sale;7 |
•Withholding Common Shares that would otherwise be issued to you when the RSUs are settled equal in value to the Tax-Related Items. The fair market value of the withheld Common Shares, determined as of the date when taxes otherwise would have been withheld in cash, will be applied to the Tax-Related Items; or •Any other means approved by the [Administrator] [Company]. •To the extent the Administrator elects to satisfy the Tax-Related Items by means of sale to cover, you hereby authorize the Company to instruct the broker whom it has selected for this purpose to sell a number of Common Shares to be issued upon settlement of your RSUs necessary to satisfy the Tax-Related Items. (c) You agree to pay to the Company in cash any amount of Tax-Related Items that the Company does not elect to satisfy by the means described above. To the extent you fail to make satisfactory arrangements for the payment of any required withholding taxes, you will permanently forfeit the applicable RSUs (and related underlying Common Shares and any related dividend equivalents). | |||||
12. Restrictions on Issuance | (a) The Company will not issue any Common Shares to you if the issuance of Common Shares at that time would violate any law or regulation. (b) Notwithstanding any other provision in the Plan, the Grant Notice or this Agreement, unless there is an available exemption from registration, qualification or other legal requirement applicable to the Common Shares, the Company shall not be required to issue any Common Shares to you prior to the completion of any registration or qualification of the Common Shares under any federal, state, local or foreign securities law or under rulings or regulations of the Securities and Exchange Commission (“SEC”) or of any other governmental body, or prior to obtaining any approval or other clearance from any federal, state, local or foreign governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. You understand that the Company is under no obligation to register or qualify the Company’s shares with the SEC or any state securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the shares. | ||||
13. Restrictions on Resale | You agree not to sell any shares at a time when applicable laws, Company policies or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify. | ||||
14. No Retention Rights | Neither your award nor any documentation related thereto (including this Agreement, the Grant Notice and the Plan) gives you the right to be retained by the Company, a Parent, a Subsidiary or an Affiliate in any capacity. The Company and its Parents, Subsidiaries and Affiliates reserve the right to terminate your Service at any time, with or without cause. | ||||
15. Adjustments | In the event of a stock split, stock dividend, reorganization and recapitalization or a similar change in Company stock, the number of your RSUs will be adjusted pursuant to the Plan. |
16. Effect of Significant Corporate Transactions | If the Company is a party to a merger, consolidation, or certain change in control transactions, then your RSUs will be subject to the applicable provisions of Article 9 of the Plan, provided that any action taken must either (a) preserve the exemption of your RSUs from Code Section 409A or (b) comply with Code Section 409A. | ||||
17. No Fractional Shares | No fractional Common Shares will be issued upon settlement. In lieu of issuing a fractional Common Share resulting from an adjustment of the RSUs pursuant to the Plan or otherwise, the Company shall be entitled to pay to you a cash amount equal to the Fair Market Value of such fractional Common Share. | ||||
18. Recoupment Policy | This award, and the Common Shares acquired upon settlement of this award, shall be subject to recoupment or clawback under any Company policy in effect from time to time, or to the extent required by applicable law in effect at the relevant time (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and/or the rules and regulations of any applicable securities exchange or inter-dealer quotation system on which the Common Shares may be listed or quoted. | ||||
19. Amendment and Waiver | (a) The Administrator, at any time, and from time to time, may amend the terms of the Grant Notice or this Agreement; provided, however, that your rights shall not be materially and adversely affected without your written consent. (b) Any right of the Company contained in the Grant Notice or this Agreement may be waived in writing by the Administrator. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of the Grant Notice or this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach. | ||||
20. Applicable Law; Consent to Jurisdiction; Waiver of Jury Trial | This Agreement and the Grant Notice will be interpreted and enforced under the laws of the State of Delaware without regard to its choice-of-law provisions or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware. You and the Company (on behalf of itself and its Affiliates) each consents to jurisdiction in a Delaware state or a federal court sitting in Wilmington, Delaware, and each waives any other requirement (whether imposed by statute, rule of court or otherwise) with respect to personal jurisdiction or service of process and waives any objection to jurisdiction based on improper venue or improper jurisdiction. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY, IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE PLAN, THE GRANT NOTICE OR THIS AGREEMENT. |
21. Successors; Interpretation | The terms of the Grant Notice and this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of you and your beneficiaries, executors, administrators, heirs and successors. The invalidity or unenforceability of any provision of this Agreement (or the Grant Notice, as applicable) shall not affect the validity or enforceability of any other provision of this Agreement (or the Grant Notice, as applicable), and each other provision of this Agreement (or the Grant Notice, as applicable) shall be severable and enforceable to the extent permitted by law. The headings of the sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of the Grant Notice or this Agreement. Pronouns and other words of gender shall be read as gender-neutral. Words importing the plural shall include the singular and the singular shall include the plural. Each of the Grant Notice and this Agreement may be entered into in counterparts. | ||||
22. The Plan and Other Agreements | (a) The text of the Plan is incorporated in this Agreement by reference. The Administrator shall have final authority to interpret and construe the Plan, the Grant Notice and this Agreement and to make any and all determinations under them, and its decision shall be binding and conclusive upon you and all other persons in respect of any questions arising under the Plan, the Grant Notice or this Agreement. (b) The Plan, this Agreement and the Grant Notice constitute the entire understanding between you and the Company regarding this award. Any prior agreements, commitments or negotiations concerning this award are superseded. (c) Notwithstanding any provisions in the Grant Notice or this Agreement, if you are located outside of the United States, the RSUs shall be subject to any special terms, conditions or notifications for your country. Moreover, if you relocate to another country, any special terms and conditions for such country will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable in order to comply with local law or facilitate the administration of the Plan. |
23. Definitions | For purposes of the Grant Notice and this Agreement, the following terms shall have the following meanings: (a) “Closing Date” has the meaning set forth in the Merger Agreement. (b) “Trading Day” means any day on which Common Shares are actually traded on the principal securities exchange or securities market on which the Common Shares are then traded. (c) “VWAP” means, for a Common Share, the dollar volume-weighted average price for a Common Share on the principal securities exchange or securities market on which the Common Shares are then traded during the applicable date(s), as reported by Bloomberg through its “VWAP” or other applicable function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of a Common Share in the over-the-counter market on the electronic bulletin board for such security during the applicable date(s), as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for Common Shares by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for a Common Share as reported by OTC Markets Group Inc. If the VWAP cannot be calculated for Common Shares on such date(s) on any of the foregoing bases (including if the Common Shares are not actually traded on the principal securities exchange or securities market on which the Common Shares are then traded for the relevant determination period), the VWAP of a Common Share on such date(s) shall be the fair market value as determined reasonably and in good faith by a majority of the disinterested independent directors of the Board. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period. |
Name of Recipient: | «Name» | ||||
Total Number of RSUs Granted: | «TotalRSUs» | ||||
Date of Grant: | «DateGrant» | ||||
Vested Status: | The RSUs are fully vested as of the Date of Grant. |
1. Grant of RSUs | Subject to all of the terms and conditions set forth in the Shapeways Holdings, Inc. 2021 Equity Incentive Plan (the “Plan”), the Notice of Restricted Stock Unit Award (the “Grant Notice”), and this Restricted Stock Unit Agreement (the “Agreement”), the Company has granted to you the number of RSUs set forth in the Grant Notice. All capitalized terms used in this Agreement shall have the meanings assigned to them in this Agreement, the Grant Notice or the Plan, as applicable. | ||||
2. Nature of RSUs | Your RSUs are bookkeeping entries. They represent only the Company’s unfunded and unsecured promise to issue Common Shares on a future date, subject to the terms and conditions of this Agreement, the Grant Notice and the Plan. As a holder of RSUs, you have no rights other than the rights of a general creditor of the Company. | ||||
3. Vested Status | The RSUs are fully vested as of the Date of Grant. | ||||
4. Settlement of RSUs | (a) Each vested RSU shall be settled no later than the 74th day following the Date of Grant, and in any event within the “short-term deferral period” as defined under Code Section 409A. In no event will you be permitted, directly or indirectly, to specify the taxable year of settlement of any RSUs subject to this award. (b) At the time of settlement, you will receive one Common Share for each vested RSU (plus payment of any dividend equivalents pursuant to Section 6). | ||||
5. Section 409A | These RSUs are intended to be exempt from the application of Code Section 409A pursuant to the “short-term deferral” exemption under Treasury Regulation Section 1.409A-1(b)(4), and this Agreement and the Grant Notice shall be administered and interpreted in a manner that complies with such exemption. | ||||
6. No Voting Rights; Dividend Equivalents | Your RSUs carry neither voting rights nor rights to cash dividends. You have no rights as a stockholder of the Company unless and until your RSUs are settled by issuing Common Shares. Each of your RSUs shall be credited with dividend equivalents, which shall be withheld by the Company for your account. Dividend equivalents credited to your account and attributable to an RSU shall be distributed (without interest) to you at the same time as the underlying Common Share is delivered upon settlement of such RSU. Dividend equivalents may be payable, in the discretion of the Company, (x) in cash, (y) in Common Shares with a Fair Market Value as of the date the RSUs are settled equal to the dividend equivalents, or (z) in an adjustment to the underlying number of Common Shares subject to the RSUs. |
7. RSUs Nontransferable | The RSUs may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered (a “Transfer”) by you other than by will or by the laws of descent and distribution, to your family members, a trust or entity established by you for estate planning purposes, a charitable organization designated by you, pursuant to a qualified domestic relations order or as otherwise permitted under the Plan; provided, that in case of any such permitted transfer, (i) the clawback provisions shall continue to relate to your Service and any termination thereof and (ii) such transfer shall be subject to such advance notice and other rules and requirements as determined by the Administrator in its sole discretion. Any attempted Transfer of the RSUs contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the RSUs, shall be null and void and without effect. In addition, regardless of any marital property settlement agreement, the Company is not obligated to recognize your former spouse’s interest in your RSUs in any way. | ||||
8. Beneficiary Designation | You may dispose of your RSUs in a written beneficiary designation if authorized by the Company and to the extent such beneficiary designation is valid under applicable law. Any beneficiary designation must be filed with the Company on the proper form. It will be recognized only if it has been received at the Company’s headquarters before your death. If you do not file any beneficiary designation or if none of your designated beneficiaries survives you, then your estate will receive any vested RSUs that you hold at the time of your death. |
9. Withholding Taxes | (a) Regardless of any action the Company (or, if applicable, the Parent, Subsidiary or Affiliate employing or retaining you (the “Employer”)) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related items related to the participation in the Plan and legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount actually withheld by the Company and/or the Employer. You further acknowledge that the Company and the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including, but not limited to, the grant or vested status of the RSUs, the issuance of Common Shares in respect of the RSUs, the subsequent sale of Common Shares acquired pursuant to such issuance and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the RSUs or any aspect of the RSUs to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you are subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer may be required to withhold or account for Tax-Related Items in more than one jurisdiction. (b) No Common Shares will be distributed to you pursuant to the RSUs unless you have made arrangements satisfactory to the Company and/or the Employer for the payment of any Tax-Related Items that the Company and/or the Employer determine must be withheld. In this regard, you authorize the Company to satisfy your Tax-Related Items by one or a combination of the following, as determined by the Administrator. •Withholding the amount of any Tax-Related Items from your wages or other cash compensation paid to you by the Company and/or the Employer; •Instructing a brokerage firm selected by the Company for this purpose to sell on your behalf a number of whole shares of Company stock to be issued to you when the RSUs are settled that the Company determines are appropriate to generate cash proceeds sufficient to satisfy the Tax-Related Items. You acknowledge that the Company or its designee is under no obligation to arrange for such sale at any particular price. Regardless of whether the Company arranges for such sale, you will be responsible for all fees and other costs of sale, and you agree to indemnify and hold the Company harmless from any losses, costs, damages or expenses relating to any such sale; •Withholding Common Shares that would otherwise be issued to you when the RSUs are settled equal in value to the Tax-Related Items. The fair market value of the withheld Common Shares, determined as of the date when taxes otherwise would have been withheld in cash, will be applied to the Tax-Related Items; or •Any other means approved by the Administrator. |
(c) You agree to pay to the Company in cash any amount of Tax-Related Items that the Company does not elect to satisfy by the means described above. To the extent you fail to make satisfactory arrangements for the payment of any required withholding taxes, you will permanently forfeit the applicable RSUs (and related underlying Common Shares and any related dividend equivalents). | |||||
10. Restrictions on Issuance | (a) The Company will not issue any Common Shares to you if the issuance of Common Shares at that time would violate any law or regulation. (b) Notwithstanding any other provision in the Plan, the Grant Notice or this Agreement, unless there is an available exemption from registration, qualification or other legal requirement applicable to the Common Shares, the Company shall not be required to issue any Common Shares to you prior to the completion of any registration or qualification of the Common Shares under any federal, state, local or foreign securities law or under rulings or regulations of the Securities and Exchange Commission (“SEC”) or of any other governmental body, or prior to obtaining any approval or other clearance from any federal, state, local or foreign governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. You understand that the Company is under no obligation to register or qualify the Company’s shares with the SEC or any state securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the shares. | ||||
11. Restrictions on Resale | You agree not to sell any shares at a time when applicable laws, Company policies or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify. | ||||
12. No Retention Rights | Neither your award nor any documentation related thereto (including this Agreement, the Grant Notice and the Plan) gives you the right to be retained by the Company, a Parent, a Subsidiary or an Affiliate in any capacity. The Company and its Parents, Subsidiaries and Affiliates reserve the right to terminate your Service at any time, with or without cause. | ||||
13. Adjustments | In the event of a stock split, stock dividend, reorganization and recapitalization or a similar change in Company stock, the number of your RSUs will be adjusted pursuant to the Plan. | ||||
14. Effect of Significant Corporate Transactions | If the Company is a party to a merger, consolidation, or certain change in control transactions, then your RSUs will be subject to the applicable provisions of Article 9 of the Plan, provided that any action taken must either (a) preserve the exemption of your RSUs from Code Section 409A or (b) comply with Code Section 409A. | ||||
15. No Fractional Shares | No fractional Common Shares will be issued upon settlement. In lieu of issuing a fractional Common Share resulting from an adjustment of the RSUs pursuant to the Plan or otherwise, the Company shall be entitled to pay to you a cash amount equal to the Fair Market Value of such fractional Common Share. |
16. Recoupment Policy | This award, and the Common Shares acquired upon settlement of this award, shall be subject to recoupment or clawback under any Company policy in effect from time to time, or to the extent required by applicable law in effect at the relevant time (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and/or the rules and regulations of any applicable securities exchange or inter-dealer quotation system on which the Common Shares may be listed or quoted. | ||||
17. Amendment and Waiver | (a) The Administrator, at any time, and from time to time, may amend the terms of the Grant Notice or this Agreement; provided, however, that your rights shall not be materially and adversely affected without your written consent. (b) Any right of the Company contained in the Grant Notice or this Agreement may be waived in writing by the Administrator. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of the Grant Notice or this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach. | ||||
18. Applicable Law; Consent to Jurisdiction; Waiver of Jury Trial | This Agreement and the Grant Notice will be interpreted and enforced under the laws of the State of Delaware without regard to its choice-of-law provisions or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware. You and the Company (on behalf of itself and its Affiliates) each consents to jurisdiction in a Delaware state or a federal court sitting in Wilmington, Delaware, and each waives any other requirement (whether imposed by statute, rule of court or otherwise) with respect to personal jurisdiction or service of process and waives any objection to jurisdiction based on improper venue or improper jurisdiction. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY, IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE PLAN, THE GRANT NOTICE OR THIS AGREEMENT. | ||||
19. Successors; Interpretation | The terms of the Grant Notice and this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of you and your beneficiaries, executors, administrators, heirs and successors. The invalidity or unenforceability of any provision of this Agreement (or the Grant Notice, as applicable) shall not affect the validity or enforceability of any other provision of this Agreement (or the Grant Notice, as applicable), and each other provision of this Agreement (or the Grant Notice, as applicable) shall be severable and enforceable to the extent permitted by law. The headings of the sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of the Grant Notice or this Agreement. Pronouns and other words of gender shall be read as gender-neutral. Words importing the plural shall include the singular and the singular shall include the plural. Each of the Grant Notice and this Agreement may be entered into in counterparts. |
20. The Plan and Other Agreements | (a) The text of the Plan is incorporated in this Agreement by reference. The Administrator shall have final authority to interpret and construe the Plan, the Grant Notice and this Agreement and to make any and all determinations under them, and its decision shall be binding and conclusive upon you and all other persons in respect of any questions arising under the Plan, the Grant Notice or this Agreement. (b) The Plan, this Agreement (including, if applicable, any Appendix for Non-U.S. Participants) and the Grant Notice constitute the entire understanding between you and the Company regarding this award. Any prior agreements, commitments or negotiations concerning this award are superseded. (c) Notwithstanding any provisions in the Grant Notice or this Agreement, if you are located outside of the United States, the RSUs shall be subject to any special terms, conditions or notifications for your country set forth in the attached Appendix for Non-U.S. Participants, which shall constitute part of this Agreement. Moreover, if you relocate to one of the countries included in such Appendix, the special terms and conditions for such country will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable in order to comply with local law or facilitate the administration of the Plan. |
Name of Recipient: | «Name» | |||||||
Total Number of RSUs Granted: | «TotalRSUs» | |||||||
Date of Grant: | «DateGrant» | |||||||
Vesting Commencement Date: | «VestCommDate» | |||||||
Expiration Date: | «ExpirationDate» | |||||||
Vesting Schedule: | You will receive a benefit with respect to an RSU only if it vests. Two vesting requirements must be satisfied on or before the Award Forfeiture Date in order for an RSU to vest: (i) a time-based service requirement (the “Time-Based Vesting Requirement”) and (ii) a requirement that the Company satisfy one or more performance goals (the “Performance-Based Vesting Requirement”, as described on Exhibit A attached hereto). An RSU will not vest (in whole or in part) if only one (or if neither) of such requirements applicable to it is satisfied on or before the Award Forfeiture Date or if the Performance-Based Vesting Requirement is not satisfied prior to or in connection with a Change in Control. The “Vesting Date” of an outstanding RSU will be the first date upon which both the Time-Based Vesting Requirement and the Performance-Based Vesting Requirement are satisfied with respect to that particular RSU. | |||||||
Time-Based Vesting Requirement: | The Time-Based Vesting Requirement will be satisfied in six (6) installments (each installment, a “Tranche”) as to the RSUs as follows: 1/6th of the RSUs subject to this award will vest on each anniversary of the Vesting Commencement Date , in each case, subject to your continuous service as an Employee or Consultant (“Service”) through each such date. | |||||||
Performance-Based Vesting Requirement: | The Performance-Based Vesting Requirement will be satisfied as described on Exhibit A; provided that such achievement must occur prior to termination of your Service for any reason. In addition, any RSUs to which the Performance-Based Vesting Requirement is not satisfied as of a Change in Control, as described on Exhibit A, shall be forfeited as of the Change in Control. |
Grant of RSUs | Subject to all of the terms and conditions set forth in the Shapeways Holdings, Inc. 2021 Equity Incentive Plan (the “Plan”), the Notice of Restricted Stock Unit Award (the “Grant Notice”), and this Restricted Stock Unit Agreement (the “Agreement”), the Company has granted to you the number of RSUs set forth in the Grant Notice. All capitalized terms used in this Agreement shall have the meanings assigned to them in this Agreement, the Grant Notice or the Plan, as applicable. | ||||
Nature of RSUs | Your RSUs are bookkeeping entries. They represent only the Company’s unfunded and unsecured promise to issue Common Shares on a future date, subject to the terms and conditions of this Agreement, the Grant Notice and the Plan. As a holder of RSUs, you have no rights other than the rights of a general creditor of the Company. | ||||
Payment for RSUs | No payment is required for the RSUs that you are receiving. | ||||
Vesting | The RSUs vest in accordance with the vesting schedule set forth in the Grant Notice. | ||||
Service/Termination of Service | In no event will any additional RSUs vest after your Service has terminated for any reason unless expressly provided in a written agreement between you and the Company. The Company determines whether and when your Service terminates for all purposes of your RSUs. If your Service terminates for any reason, then your RSUs will be forfeited to the extent that they have not vested before the termination date and do not vest as a result of the termination of your Service. Any outstanding RSUs will be subject to any vesting acceleration benefits you may be entitled to under any other agreement between you and the Company. You will receive no payment for RSUs that are forfeited. | ||||
Expiration of RSUs | If both the Time-Based Vesting Requirement and the Performance-Based Vesting Requirement with respect to an applicable RSU are not satisfied on or before the earlier of (i) the Expiration Date set forth in the Notice of Restricted Stock Unit Award, and (ii) the date on which your Service terminates for any reason, such RSU shall automatically terminate and be cancelled upon such date. The date determined in the preceding sentence is referred to as the “Award Forfeiture Date.” In addition, any RSUs to which the Performance-Based Vesting Requirement is not satisfied in connection with the Change in Control shall automatically terminate and be cancelled upon the date of the Change in Control. Upon a termination of one or more RSUs pursuant to this paragraph, you will have no further right with respect to such RSUs or the Common Shares previously allocated thereto. |
Leaves of Absence and Part-Time Work | For purposes of this award, your Service does not terminate when you go on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing. However, except as otherwise determined by the Company, your Service terminates when the approved leave ends, unless you immediately return to active work. If you go on an unpaid leave of absence that lasts more than thirty days, then, to the extent permitted by applicable law, the Time-Based Vesting Requirement specified in the Grant Notice will be suspended on the thirty-first day of such unpaid leave, and this award will not vest with respect to any additional RSUs that have not satisfied the Time-Based Vesting Requirement during the remainder of such leave. Vesting under the Time-Based Vesting Requirement will resume when you return to active Service. If you go on a paid leave of absence, the Time-Based Vesting Requirement specified in the Grant Notice may be suspended and/or adjusted in accordance with the Company’s leave of absence policy or the terms of your leave. If you commence working on a part-time basis, the Company may adjust the Time-Based Vesting Requirement so that the rate of vesting is commensurate with your reduced work schedule. | ||||
Settlement of RSUs | Each RSU will be settled as soon as practicable on or following the applicable Vesting Date, and in any event within the “short-term deferral period” as defined under Code Section 409A. At the Administrator’s discretion, settlement may occur on fixed dates established by the Administrator for settlement of RSUs. In no event will you be permitted, directly or indirectly, to specify the taxable year of settlement of any RSUs subject to this award. At the time of settlement, you will receive one Common Share for each vested RSU (plus payment of any dividend equivalents). | ||||
Section 409A | Settlement of these RSUs is intended to be exempt from the application of Code Section 409A pursuant to the “short-term deferral” exemption under Treasury Regulation Section 1.409A-1(b)(4), and this Agreement and the Grant Notice shall be administered and interpreted in a manner that complies with such exemption. Notwithstanding the foregoing, if it is determined that settlement of these RSUs is not exempt from Code Section 409A and the Company determines that you are a “specified employee,” as defined in the regulations under Code Section 409A at the time of your “separation from service,” as defined in Treasury Regulation Section 1.409A-1(h), then this paragraph will apply. If this paragraph applies, and the event triggering settlement is your “separation from service,” then any RSUs that otherwise would have been settled during the first six months following your “separation from service” will instead be settled on the first business day following the earlier of (i) the six-month anniversary of your separation from service or (ii) your death. Each installment of RSUs that vests is hereby designated as a separate payment for purposes of Code Section 409A. |
No Voting Rights; Dividend Equivalents | Your RSUs carry neither voting rights nor rights to cash dividends. You have no rights as a stockholder of the Company unless and until your RSUs are settled by issuing Common Shares. Each of your RSUs shall be credited with dividend equivalents, which shall be withheld by the Company for your account. Dividend equivalents credited to your account and attributable to an RSU shall be distributed (without interest) to you at the same time as the underlying Common Share is delivered upon settlement of such RSU and if such RSU is forfeited, you shall have no right to such dividend equivalents. Dividend equivalents may be payable, in the discretion of the Company, (x) in cash, (y) in Common Shares with a Fair Market Value as of the date the RSUs are settled equal to the dividend equivalents, or (z) in an adjustment to the underlying number of Common Shares subject to the RSUs. | ||||
RSUs Nontransferable | The RSUs may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered (a “Transfer”) by you other than by will or by the laws of descent and distribution, to your family members, a trust or entity established by you for estate planning purposes, a charitable organization designated by you, pursuant to a qualified domestic relations order or as otherwise permitted under the Plan; provided, that in case of any such permitted transfer, (i) the vesting, forfeiture and clawback provisions shall continue to relate to your Service and any termination thereof and (ii) such transfer shall be subject to such advance notice and other rules and requirements as determined by the Administrator in its sole discretion. Any attempted Transfer of the RSUs contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the RSUs, shall be null and void and without effect. In addition, regardless of any marital property settlement agreement, the Company is not obligated to recognize your former spouse’s interest in your RSUs in any way. | ||||
Beneficiary Designation | You may dispose of your RSUs in a written beneficiary designation if authorized by the Company and to the extent such beneficiary designation is valid under applicable law. Any beneficiary designation must be filed with the Company on the proper form. It will be recognized only if it has been received at the Company’s headquarters before your death. If you do not file any beneficiary designation or if none of your designated beneficiaries survives you, then your estate will receive any vested RSUs that you hold at the time of your death. |
Withholding Taxes | Regardless of any action the Company (or, if applicable, the Parent, Subsidiary or Affiliate employing or retaining you (the “Employer”)) takes with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related items related to the participation in the Plan and legally applicable to you (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and may exceed the amount actually withheld by the Company and/or the Employer. You further acknowledge that the Company and the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the RSUs, including, but not limited to, the grant or vesting of the RSUs, the issuance of Common Shares upon vesting of the RSUs, the subsequent sale of Common Shares acquired pursuant to such issuance and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to and are under no obligation to structure the terms of the RSUs or any aspect of the RSUs to reduce or eliminate your liability for Tax-Related Items or achieve any particular tax result. Further, if you are subject to tax in more than one jurisdiction, you acknowledge that the Company and/or the Employer may be required to withhold or account for Tax-Related Items in more than one jurisdiction. No Common Shares will be distributed to you pursuant to the RSUs unless you have made arrangements satisfactory to the Company and/or the Employer for the payment of any Tax-Related Items that the Company and/or the Employer determine must be withheld. In this regard, you authorize the Company to satisfy your Tax-Related Items by one or a combination of the following, as determined by the Administrator. •Withholding the amount of any Tax-Related Items from your wages or other cash compensation paid to you by the Company and/or the Employer; •Instructing a brokerage firm selected by the Company for this purpose to sell on your behalf a number of whole shares of Company stock to be issued to you when the RSUs are settled that the Company determines are appropriate to generate cash proceeds sufficient to satisfy the Tax-Related Items. This method of satisfying your Tax-Related Items is referred to as “sale-to-cover”. You acknowledge that the Company or its designee is under no obligation to arrange for such sale at any particular price. Regardless of whether the Company arranges for such sale, you will be responsible for all fees and other costs of sale, and you agree to indemnify and hold the Company harmless from any losses, costs, damages or expenses relating to any such sale; •Withholding Common Shares that would otherwise be issued to you when the RSUs are settled equal in value to the Tax-Related Items. The fair market value of the withheld Common Shares, determined as of the date when taxes otherwise would have been withheld in cash, will be applied to the Tax-Related Items; or •Any other means approved by the Administrator. To the extent the Administrator elects to satisfy the Tax-Related Items by means of sale-to-cover, you hereby authorize the Company to instruct the broker whom it has selected for this purpose to sell a number of Common Shares to be issued upon settlement of your RSUs necessary to satisfy the Tax-Related Items. You agree to pay to the Company in cash any amount of Tax-Related Items that the Company does not elect to satisfy by the means described above. To the extent you fail to make satisfactory arrangements for the payment of any required withholding taxes, you will permanently forfeit the applicable RSUs (and related underlying Common Shares and any related dividend equivalents). |
Restrictions on Issuance | The Company will not issue any Common Shares to you if the issuance of Common Shares at that time would violate any law or regulation. Notwithstanding any other provision in the Plan, the Grant Notice or this Agreement, unless there is an available exemption from registration, qualification or other legal requirement applicable to the Common Shares, the Company shall not be required to issue any Common Shares to you prior to the completion of any registration or qualification of the Common Shares under any federal, state, local or foreign securities law or under rulings or regulations of the Securities and Exchange Commission (“SEC”) or of any other governmental body, or prior to obtaining any approval or other clearance from any federal, state, local or foreign governmental agency, which registration, qualification or approval the Company shall, in its absolute discretion, deem necessary or advisable. You understand that the Company is under no obligation to register or qualify the Company’s shares with the SEC or any state securities commission or to seek approval or clearance from any governmental authority for the issuance or sale of the shares. | ||||
Restrictions on Resale | You agree not to sell any shares at a time when applicable laws, Company policies or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as your Service continues and for such period of time after the termination of your Service as the Company may specify. | ||||
No Retention Rights | Neither your award nor any documentation related thereto (including this Agreement, the Grant Notice and the Plan) gives you the right to be retained by the Company, a Parent, a Subsidiary or an Affiliate in any capacity. The Company and its Parents, Subsidiaries and Affiliates reserve the right to terminate your Service at any time, with or without cause. | ||||
Adjustments | In the event of a stock split, stock dividend, reorganization and recapitalization or a similar change in Company stock, the number of your RSUs will be adjusted pursuant to the Plan and the Performance-Based Vesting Requirement will be equitably adjusted by the Administrator in its sole discretion. | ||||
Effect of Significant Corporate Transactions | If the Company is a party to a merger, consolidation, or certain change in control transactions, then your RSUs will be subject to the applicable provisions of Article 9 of the Plan, provided that any action taken must either (a) preserve the exemption of your RSUs from Code Section 409A or (b) comply with Code Section 409A. | ||||
No Fractional Shares | No fractional Common Shares will be issued upon settlement. In lieu of issuing a fractional Common Share resulting from an adjustment of the RSUs pursuant to the Plan or otherwise, the Company shall be entitled to pay to you a cash amount equal to the Fair Market Value of such fractional Common Share. |
Recoupment Policy | This award, and the Common Shares acquired upon settlement of this award, shall be subject to recoupment or clawback under any Company policy in effect from time to time, or to the extent required by applicable law in effect at the relevant time (including, without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and/or the rules and regulations of any applicable securities exchange or inter-dealer quotation system on which the Common Shares may be listed or quoted. | ||||
Amendment and Waiver | The Administrator, at any time, and from time to time, may amend the terms of the Grant Notice or this Agreement; provided, however, that your rights shall not be materially and adversely affected without your written consent. Any right of the Company contained in the Grant Notice or this Agreement may be waived in writing by the Administrator. No waiver of any right hereunder by any party shall operate as a waiver of any other right, or as a waiver of the same right with respect to any subsequent occasion for its exercise, or as a waiver of any right to damages. No waiver by any party of any breach of the Grant Notice or this Agreement shall be held to constitute a waiver of any other breach or a waiver of the continuation of the same breach. | ||||
Applicable Law; Consent to Jurisdiction; Waiver of Jury Trial | This Agreement and the Grant Notice will be interpreted and enforced under the laws of the State of Delaware without regard to its choice-of-law provisions or principles of conflicts of laws of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware. You and the Company (on behalf of itself and its Affiliates) each consents to jurisdiction in a Delaware state or a federal court sitting in Wilmington, Delaware, and each waives any other requirement (whether imposed by statute, rule of court or otherwise) with respect to personal jurisdiction or service of process and waives any objection to jurisdiction based on improper venue or improper jurisdiction. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY, IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE PLAN, THE GRANT NOTICE OR THIS AGREEMENT. |
Successors; Interpretation | The terms of the Grant Notice and this Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, and of you and your beneficiaries, executors, administrators, heirs and successors. The invalidity or unenforceability of any provision of this Agreement (or the Grant Notice, as applicable) shall not affect the validity or enforceability of any other provision of this Agreement (or the Grant Notice, as applicable), and each other provision of this Agreement (or the Grant Notice, as applicable) shall be severable and enforceable to the extent permitted by law. The headings of the sections hereof are provided for convenience only and are not to serve as a basis for interpretation or construction, and shall not constitute a part, of the Grant Notice or this Agreement. Pronouns and other words of gender shall be read as gender-neutral. Words importing the plural shall include the singular and the singular shall include the plural. Each of the Grant Notice and this Agreement may be entered into in counterparts. | ||||
The Plan and Other Agreements | The text of the Plan is incorporated in this Agreement by reference. The Administrator shall have final authority to interpret and construe the Plan, the Grant Notice and this Agreement and to make any and all determinations under them, and its decision shall be binding and conclusive upon you and all other persons in respect of any questions arising under the Plan, the Grant Notice or this Agreement. The Plan, this Agreement and the Grant Notice constitute the entire understanding between you and the Company regarding this award. Any prior agreements, commitments or negotiations concerning this award are superseded. Notwithstanding any provisions in the Grant Notice or this Agreement, if you are located outside of the United States, the RSUs shall be subject to any special terms, conditions or notifications for your country. Moreover, if you relocate to another country, any special terms and conditions for such country will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable in order to comply with local law or facilitate the administration of the Plan. |