a109exfiling-xenergyvaul






Exhibit 10.9  US-DOCS\137263878.1  ENERGY VAULT HOLDINGS, INC.   2022 EQUITY INCENTIVE PLAN  NOTICE OF RESTRICTED STOCK UNIT AWARD  You have been granted Restricted Stock Units (“RSUs”), each representing the right to receive one share  of the Common Stock of Energy Vault Holdings, Inc. (the “Company”) on the following terms and  conditions:  Name of Recipient: [______]  Total Number of RSUs Granted: [______]  Date of Grant: [______]  Vesting Commencement Date [______]  Vesting Schedule: [To be specified in individual award agreements]  You and the Company agree that these RSUs are granted under and governed by the terms and conditions  of the Company’s 2022 Equity Incentive Plan (the “Plan”) and the Restricted Stock Unit Agreement, both  of which are attached to, and made a part of, this document.  Capitalized terms not otherwise defined herein  shall have the meanings assigned to such terms in the Plan.  The Company may, in its sole discretion, decide to deliver any documents related to RSUs awarded under  the Plan, future RSUs that may be awarded under the Plan (if any) and all documents that the Company is  required to deliver to security holders (including annual reports and proxy statements) by email or other  electronic means (including posting them on a website maintained by the Company or a third party under  contract with the Company).  You hereby consent to receive such documents by electronic delivery and  agree to participate in the Plan through any on-line or electronic system established and maintained by the  Company or another third party designated by the Company.  You acknowledge that you may incur costs  in connection with any such delivery by means of electronic transmission, including the cost of accessing  the Internet and printing fees, and that an interruption of Internet access may interfere with your ability to  access the documents.  You further agree to comply with the Company’s Insider Trading Policy when selling shares of the  Company’s Common Stock.  





 






  US-DOCS\137263878.1  ENERGY VAULT HOLDINGS, INC.   2022 EQUITY INCENTIVE PLAN  RESTRICTED STOCK UNIT AGREEMENT     Grant of RSUs Subject to all of the terms and conditions set forth in the Notice of  Restricted Stock Unit Award (the “Grant Notice”), this Restricted Stock  Unit Agreement (the “Agreement”) and the Plan, 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.  Nature of RSUs Your RSUs are bookkeeping entries.  They represent only the  Company’s unfunded and unsecured promise to issue shares of the  Company’s Common Stock on a future date.  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.    





 






    US-DOCS\137263878.1  Leaves of Absence  and Part-Time  Work  If you go on a leave of absence, then, to the extent permitted by applicable  law and consistent with the Company’s leave of absence policy or the  terms of your leave, the Company may adjust or suspend the vesting  schedule set forth in the Grant Notice.  Except as provided in the preceding  sentence, Service shall be deemed to continue for any purpose under this  Agreement while you are on a paid leave or any other bona fide leave of  absence approved by the Company in writing.  Service shall be deemed to  terminate when such leave ends, unless you immediately return to active  work when such leave ends.  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, but in any event within 60 days following the vesting date  (unless you and the Company have agreed in writing to a later settlement  date pursuant to procedures the Company may prescribe at its  discretion).   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 share of the Company’s  Common Stock for each vested RSU.    No fractional shares will be issued upon settlement.    Section 409A Unless you and the Company have agreed to a deferred settlement date  (pursuant to procedures that the Company may prescribe at its  discretion), settlement of these restricted stock units is intended to be  exempt from the application of Code Section 409A pursuant to Treasury  Regulation 1.409A-1(b)(4) and shall be administered and interpreted in  a manner that complies with such exception.  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.  





 






    US-DOCS\137263878.1  No Voting Rights or  Dividends  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 shares of the Company’s Common Stock.  RSUs  Nontransferable  You may not sell, transfer, assign, pledge or otherwise dispose of any  RSUs.  For instance, you may not use your RSUs as security for a loan.  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 file no 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 shares upon vesting of the RSUs, the subsequent  sale of shares acquired pursuant to such vesting 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 shares will be distributed to you 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, at its sole  





 






    US-DOCS\137263878.1  discretion, to satisfy your Tax-Related Items by one or a combination of  the following:  • 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 shares of Company stock 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 shares,  determined as of the date when taxes otherwise would have been  withheld in cash, will be applied to the Tax-Related Items.  • Any other means approved by the Company.  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.    Restrictions on  Issuance  The Company will not issue any shares to you if the issuance of shares at  that time would violate any law or regulation.  Notwithstanding any other provision in the Plan or this Agreement, unless  there is an available exemption from registration, qualification or other  legal requirement applicable to the shares of Company Common Stock, the  Company shall not be required to issue any shares to you prior to the  completion of any registration or qualification of the shares under any  local, state, national or federal 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 local, state, national or federal 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  





 






    US-DOCS\137263878.1  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 Your award or this Agreement does not give you the right to be retained  by the Company, a Parent, 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, a stock dividend or a similar change in  Company’s Common 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.  Recoupment Policy This award, and the shares acquired upon settlement of this award, shall  be subject to any Company recoupment or clawback policy in effect  from time to time.  Applicable Law This Agreement will be interpreted and enforced under the laws of the  State of Delaware (without regard to its choice-of-law provisions).  The Plan and Other  Agreements  The text of the Plan is incorporated in this Agreement by reference.    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.  This Agreement may be amended only by another written  agreement between the parties.  Language The parties hereto acknowledge that they have requested and are satisfied  that this document and all related documents be drawn up in the English  language.    





 






    US-DOCS\137263878.1  BY ACCEPTING THIS RSU AWARD, YOU AGREE TO ALL OF THE  TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN.