a105energyvault-2022empl






Exhibit 10.5  US-DOCS\136942439.4  ENERGY VAULT HOLDINGS, INC.  2022 EMPLOYMENT INDUCEMENT AWARD PLAN  (AS ADOPTED ON NOVEMBER 14, 2022)  





 






    US-DOCS\136942439.4  ENERGY VAULT HOLDINGS, INC.  2022 EMPLOYMENT INDUCEMENT AWARD PLAN    ARTICLE 1.   INTRODUCTION.  The purpose of the Plan is to promote the long-term success of the Company and the  creation of stockholder value by (a) encouraging Eligible Individuals to focus on critical long- range corporate objectives, (b) encouraging the attraction and retention of Eligible Individuals  with exceptional qualifications and (c) linking Eligible Individuals directly to stockholder  interests through increased stock ownership.  The Plan seeks to achieve this purpose by  providing for Awards in the form of Options, SARs, Restricted Shares and Restricted Stock  Units.  Capitalized terms used in this Plan are defined in Article 14.  ARTICLE 2.   ADMINISTRATION.  2.1 General.  The Plan may be administered by the Board or one or more  Committees to which the Board (or an authorized Board committee) has delegated authority.  If  administration is delegated to a Committee, the Committee shall have the powers theretofore  possessed by the Board, including, to the extent permitted by applicable law, the power to  delegate to a subcommittee any of the administrative powers the Committee is authorized to  exercise (and references in this Plan to either the Board or the Administrator shall hereafter also  encompass the Committee or subcommittee, as applicable). The Board may abolish the  Committee’s delegation at any time and the Board shall at all times also retain the authority it  has delegated to the Committee.  The Administrator shall comply with rules and regulations  applicable to it, including under the rules of any exchange on which the Common Shares are  traded, and shall have the authority and be responsible for such functions as have been assigned  to it.  2.2 Section 16.  To the extent desirable to qualify transactions hereunder as exempt  under Exchange Act Rule 16b-3, the transactions contemplated hereunder will be approved by  the entire Board or a Committee of two or more “non-employee directors” within the meaning of  Exchange Act Rule 16b-3.  2.3 Powers of Administrator.  Subject to the terms of the Plan, and in the case of a  Committee, subject to the specific duties delegated to the Committee, the Administrator shall  have the authority to (a) select the Eligible Individuals who are to receive Awards under the  Plan, (b) determine the type, number, vesting requirements and other features and conditions of  such Awards, (c) interpret the Plan and Awards granted under the Plan, (d) determine whether,  when and to what extent an Award has become vested and/or exercisable and whether any  performance-based vesting conditions have been satisfied, (e) make, amend and rescind rules  relating to the Plan and Awards granted under the Plan, including rules relating to sub-plans  established for the purposes of satisfying applicable foreign laws or for qualifying for favorable  tax treatment under applicable foreign laws, (f) impose such restrictions, conditions or  limitations as it determines appropriate as to the timing and manner of any resales by a  Participant of any Common Shares issued pursuant to an Award, including restrictions under an  insider trading policy and restrictions as to the use of a specified brokerage firm for such resales,  and (g) make all other decisions relating to the operation of the Plan and Awards granted under  





 






    US-DOCS\136942439.4  the Plan.  The Administrator may adopt procedures from time to time that are intended to ensure  that an individual is an Eligible Individual prior to the granting of any Awards to such individual  (including without limitation a requirement that each such individuals certify to the Company  prior to the receipt of an Award that he or she is not currently employed by the Company or a  Subsidiary and, if previously so employed, has had a bona fide period of interruption of  employment, and that the grant of Awards is an inducement material to his or her agreement to  enter into employment with the Company or a Subsidiary.  In addition, with regard to the terms  and conditions of Awards granted to Eligible Individuals outside of the United States, the  Administrator may vary from the provisions of the Plan to the extent it determines it necessary  and appropriate to do so.  2.4 Effect of Administrator’s Decisions.  The Administrator’s decisions,  determinations and interpretations shall be final and binding on all interested parties.  2.5 Governing Law.  The Plan shall be governed by, and construed in accordance  with, the laws of the State of Delaware (except its choice-of-law provisions).    ARTICLE 3.   SHARES AVAILABLE FOR GRANTS.  3.1 Basic Limitation.  Common Shares issued pursuant to the Plan may be  authorized but unissued shares or treasury shares.  The aggregate number of Common Shares  issued under the Plan shall not exceed the sum of (a) 8,000,000 Common Shares, plus (b) the  additional Common Shares described in Article 3.2.  The Company shall reserve and keep  available such number of Common Shares as will be sufficient to satisfy the requirements of the  Plan.  The numerical limitations in this Article 3.1 shall be subject to adjustment pursuant to  Article 9.  3.2 Shares Returned to Reserve.  To the extent that Options, SARs, Restricted  Stock Units or other Awards are forfeited, cancelled or expire for any reason before being  exercised or settled in full, the Common Shares subject to such Awards shall again become  available for issuance under the Plan.  If SARs are exercised or Restricted Stock Units are  settled, then only the number of Common Shares (if any) actually issued to the Participant upon  exercise of such SARs or settlement of such Restricted Stock Units, as applicable, shall reduce  the number of Common Shares available under Article 3.1 and the balance shall again become  available for issuance under the Plan.  If Restricted Shares or Common Shares issued upon the  exercise of Options are reacquired by the Company pursuant to a forfeiture provision, repurchase  right or for any other reason, then such Common Shares shall again become available for  issuance under the Plan.  Common Shares applied to pay the Exercise Price of Options or to  satisfy tax withholding obligations related to any Award shall again become available for  issuance under the Plan.  To the extent that an Award is settled in cash rather than Common  Shares, the cash settlement shall not reduce the number of Common Shares available for  issuance under the Plan.    ARTICLE 4.   Employee Inducement Plan  4.1 Stockholder Approval Not Required.  It is expressly intended that approval of  the Company's stockholders not be required as a condition of the effectiveness of the Plan, and  the Plan's provisions shall be interpreted in a manner consistent with such intent for all purposes.  Specifically, NYSE Rule 303A.08 generally requires stockholder approval for equity  





 






    US-DOCS\136942439.4  compensation plans adopted by companies whose securities are listed on the New York Stock  Exchange that provide for the delivery of equity securities to any employees, directors or other  service providers of such companies as compensation for services. NYSE Rule 303A.08 provides  an exemption in certain circumstances for employment inducement awards. Notwithstanding  anything to the contrary herein, in accordance with NYSE Rule 303A.08, Awards may only be  granted as material inducements to Eligible Individuals being hired or rehired as Employees, as  applicable, and must be approved by (a) the Board, acting through a majority of the Company’s  Independent Directors or (b) the independent Compensation Committee of the Board.  Accordingly, pursuant to NYSE Rule 303A.08, the issuance of Awards and the Common Shares  issuable upon exercise or vesting of such Awards pursuant to the Plan is not subject to the  approval of the Company’s stockholders.  4.2 Action Required Upon Grant of Award. Promptly following the grant of an  Award, the Company shall, in accordance with NYSE Rule 303A.08, (a) issue a press release  disclosing the material terms of the Award, including the recipient(s) of the Award and the  number of Common Shares involved and (b) provide any required written notice to the New  York Stock Exchange of the grant.  ARTICLE 5.   OPTIONS.  5.1 Stock Option Agreement.  Each grant of an Option under the Plan shall be  evidenced by a Stock Option Agreement between the Optionee and the Company.  Such Option  shall be subject to all applicable terms of the Plan and may be subject to any other terms that are  not inconsistent with the Plan.  The provisions of the various Stock Option Agreements entered  into under the Plan need not be identical.    5.2 Number of Shares.  Each Stock Option Agreement shall specify the number of  Common Shares subject to the Option, which number shall adjust in accordance with Article 9.    5.3 Exercise Price.  Each Stock Option Agreement shall specify the Exercise Price,  which shall not be less than 100% of the Fair Market Value of a Common Share on the date of  grant.    5.4 Exercisability and Term.  Each Stock Option Agreement shall specify the date  or event when all or any installment of the Option is to become vested and/or exercisable.  The  vesting and exercisability conditions applicable to the Option may include service-based  conditions, performance-based conditions, such other conditions as the Administrator may  determine, or any combination of such conditions.  The Stock Option Agreement shall also  specify the term of the Option; provided that, except to the extent necessary to comply with  applicable foreign law, the term of an Option shall in no event exceed 10 years from the date of  grant.  A Stock Option Agreement may provide for accelerated vesting and/or exercisability  upon certain specified events and may provide for expiration prior to the end of its term in the  event of the termination of the Optionee’s service.    5.5 Death of Optionee.  After an Optionee’s death, any vested and exercisable  Options held by such Optionee may be exercised by his or her beneficiary or beneficiaries.  Each  Optionee may designate one or more beneficiaries for this purpose by filing the prescribed form  with the Company.  A beneficiary designation may be changed by filing the prescribed form with  the Company at any time before the Optionee’s death.  If no beneficiary was designated or if no  





 






    US-DOCS\136942439.4  designated beneficiary survives the Optionee, then any vested and exercisable Options held by  the Optionee may be exercised by his or her estate.  5.6 Modification or Assumption of Options.  Within the limitations of the Plan, the  Administrator may modify, reprice, extend or assume outstanding options or may accept the  cancellation of outstanding options (whether granted by the Company or by another issuer) in  return for the grant of new Options for the same or a different number of shares and at the same  or a different exercise price or in return for the grant of a different type of Award.  The foregoing  notwithstanding, no modification of an Option shall, without the consent of the Optionee,  materially impair his or her rights or obligations under such Option.  5.7 Buyout Provisions.  The Administrator may at any time (a) offer to buy out for a  payment in cash or cash equivalents an Option previously granted or (b) authorize an Optionee to  elect to cash out an Option previously granted, in either case at such time and based upon such  terms and conditions as the Administrator shall establish.  5.8 Payment for Option Shares.  The entire Exercise Price of Common Shares  issued upon exercise of Options shall be payable in cash or cash equivalents at the time when  such Common Shares are purchased.  In addition, the Administrator may, in its sole discretion  and to the extent permitted by applicable law, accept payment of all or a portion of the Exercise  Price through any one or a combination of the following forms or methods:  (a) Subject to any conditions or limitations established by the Administrator,  by surrendering, or attesting to the ownership of, Common Shares that are already owned by the  Optionee with a value on the date of surrender equal to the aggregate exercise price of the  Common Shares as to which such Option will be exercised;  (b) By delivering (on a form prescribed by the Company) an irrevocable  direction to a securities broker approved by the Company to sell all or part of the Common  Shares being purchased under the Plan and to deliver all or part of the sales proceeds to the  Company;    (c) Subject to such conditions and requirements as the Administrator may  impose from time to time, through a net exercise procedure; or  (d) Through any other form or method consistent with applicable laws,  regulations and rules.  ARTICLE 6.   STOCK APPRECIATION RIGHTS.  6.1 SAR Agreement.  Each grant of a SAR under the Plan shall be evidenced by a  SAR Agreement between the Optionee and the Company.  Such SAR shall be subject to all  applicable terms of the Plan and may be subject to any other terms that are not inconsistent with  the Plan.  The provisions of the various SAR Agreements entered into under the Plan need not be  identical.    6.2 Number of Shares.  Each SAR Agreement shall specify the number of Common  Shares to which the SAR pertains, which number shall adjust in accordance with Article 9.    





 






    US-DOCS\136942439.4  6.3 Exercise Price.  Each SAR Agreement shall specify the Exercise Price, which  shall in no event be less than 100% of the Fair Market Value of a Common Share on the date of  grant.  The preceding sentence shall not apply to a SAR that is a Substitute Award granted in a  manner that would satisfy the requirements of Code Section 409A.  6.4 Exercisability and Term.  Each SAR Agreement shall specify the date when all  or any installment of the SAR is to become vested and exercisable.  The vesting and  exercisability conditions applicable to the SAR may include service-based conditions,  performance-based conditions, such other conditions as the Administrator may determine, or any  combination thereof.  The SAR Agreement shall also specify the term of the SAR; provided that  except to the extent necessary to comply with applicable foreign law, the term of a SAR shall not  exceed 10 years from the date of grant.  A SAR Agreement may provide for accelerated vesting  and exercisability upon certain specified events and may provide for expiration prior to the end  of its term in the event of the termination of the Optionee’s service.    6.5 Exercise of SARs.  Upon exercise of a SAR, the Optionee (or any person having  the right to exercise the SAR after his or her death) shall receive from the Company (a) Common  Shares, (b) cash or (c) a combination of Common Shares and cash, as the Administrator shall  determine.  The amount of cash and/or the Fair Market Value of Common Shares received upon  exercise of SARs shall, in the aggregate, not exceed the amount by which the Fair Market Value  (on the date of surrender) of the Common Shares subject to the SARs exceeds the Exercise Price.   If, on the date when a SAR expires, the Exercise Price is less than the Fair Market Value on such  date but any portion of such SAR has not been exercised or surrendered, then such SAR shall  automatically be deemed to be exercised as of such date with respect to such portion.  A SAR  Agreement may also provide for an automatic exercise of the SAR on an earlier date.  6.6 Death of Optionee.  After an Optionee’s death, any vested and exercisable SARs  held by such Optionee may be exercised by his or her beneficiary or beneficiaries.  Each  Optionee may designate one or more beneficiaries for this purpose by filing the prescribed form  with the Company.  A beneficiary designation may be changed by filing the prescribed form with  the Company at any time before the Optionee’s death.  If no beneficiary was designated or if no  designated beneficiary survives the Optionee, then any vested and exercisable SARs held by the  Optionee at the time of his or her death may be exercised by his or her estate.  6.7 Modification or Assumption of SARs.  Within the limitations of the Plan, the  Administrator may modify, reprice, extend or assume outstanding stock appreciation rights or  may accept the cancellation of outstanding stock appreciation rights (whether granted by the  Company or by another issuer) in return for the grant of new SARs for the same or a different  number of shares and at the same or a different exercise price or in return for the grant of a  different type of Award.  The foregoing notwithstanding, no modification of a SAR shall,  without the consent of the Optionee, materially impair his or her rights or obligations under such  SAR.  ARTICLE 7.   RESTRICTED SHARES.  7.1 Restricted Stock Agreement.  Each grant of Restricted Shares under the Plan  shall be evidenced by a Restricted Stock Agreement between the recipient and the Company.   Such Restricted Shares shall be subject to all applicable terms of the Plan and may be subject to  





 






    US-DOCS\136942439.4  any other terms that are not inconsistent with the Plan.  The provisions of the various Restricted  Stock Agreements entered into under the Plan need not be identical.  7.2 Payment for Awards.  Restricted Shares may be sold or awarded under the Plan  for such consideration as the Administrator may determine, including (without limitation) cash,  cash equivalents, property, cancellation of other equity awards, promissory notes, past services  and future services, and such other methods of payment as are permitted by applicable law.    7.3 Vesting Conditions.  Each Award of Restricted Shares may or may not be subject  to vesting and/or other conditions as the Administrator may determine.  Vesting shall occur, in  full or in installments, upon satisfaction of the conditions specified in the Restricted Stock  Agreement.  Vesting conditions may include service-based conditions, performance-based  conditions, such other conditions as the Administrator may determine, or any combination  thereof.  A Restricted Stock Agreement may provide for accelerated vesting upon certain  specified events.  7.4 Voting and Dividend Rights.  The holders of Restricted Shares awarded under  the Plan shall have the same voting, dividend and other rights as the Company’s other  stockholders, unless the Administrator otherwise provides.  A Restricted Stock Agreement,  however, may require that any cash dividends paid on Restricted Shares (a) be accumulated and  paid when such Restricted Shares vest, or (b) be invested in additional Restricted Shares.  Such  additional Restricted Shares shall be subject to the same conditions and restrictions as the shares  subject to the Award with respect to which the dividends were paid.  In addition, unless the  Administrator provides otherwise, if any dividends or other distributions are paid in Common  Shares, such Common Shares shall be subject to the same restrictions on transferability and  forfeitability as the Restricted Shares with respect to which they were paid.  7.5 Modification or Assumption of Restricted Shares.  Within the limitations of the  Plan, the Administrator may modify or assume outstanding Restricted Shares or may accept the  cancellation of outstanding restricted shares (whether granted by the Company or by another  issuer) in return for the grant of new Restricted Shares for the same or a different number of  shares or in return for the grant of a different type of Award.  The foregoing notwithstanding, no  modification of Restricted Shares shall, without the consent of the Participant, materially impair  his or her rights or obligations under such Restricted Shares.  ARTICLE 8.   RESTRICTED STOCK UNITS.  8.1 Restricted Stock Unit Agreement.  Each grant of Restricted Stock Units under  the Plan shall be evidenced by a Restricted Stock Unit Agreement between the recipient and the  Company.  Such Restricted Stock Units shall be subject to all applicable terms of the Plan and  may be subject to any other terms that are not inconsistent with the Plan.  The provisions of the  various Restricted Stock Unit Agreements entered into under the Plan need not be identical.    8.2 Payment for Awards.  To the extent that an Award is granted in the form of  Restricted Stock Units, no cash consideration shall be required of the Award recipients.  8.3 Vesting Conditions.  Each Award of Restricted Stock Units may or may not be  subject to vesting, as determined by the Administrator.  Vesting shall occur, in full or in  installments, upon satisfaction of the conditions specified in the Restricted Stock Unit  Agreement.  Vesting conditions may include service-based conditions, performance-based  





 






    US-DOCS\136942439.4  conditions, such other conditions as the Administrator may determine, or any combination  thereof.  A Restricted Stock Unit Agreement may provide for accelerated vesting upon certain  specified events.    8.4 Voting and Dividend Rights.  The holders of Restricted Stock Units shall have  no voting rights.  Prior to settlement or forfeiture, Restricted Stock Units awarded under the Plan  may, at the Administrator’s discretion, provide for a right to dividend equivalents.  Such right  entitles the holder to be credited with an amount equal to all cash dividends paid on one  Common Share while the Restricted Stock Unit is outstanding.  Dividend equivalents may be  converted into additional Restricted Stock Units.  Settlement of dividend equivalents may be  made in the form of cash, in the form of Common Shares, or in a combination of both.  Prior to  distribution, any dividend equivalents shall be subject to the same conditions and restrictions as  the Restricted Stock Units to which they attach.  8.5 Form and Time of Settlement of Restricted Stock Units.  Settlement of vested  Restricted Stock Units may be made in the form of (a) cash, (b) Common Shares or (c) any  combination of both, as determined by the Administrator.  The actual number of Restricted Stock  Units eligible for settlement may be larger or smaller than the number included in the original  Award, based on predetermined performance factors.  Methods of converting Restricted Stock  Units into cash may include (without limitation) a method based on the average value of  Common Shares over a series of trading days.  Vested Restricted Stock Units shall be settled in  such manner and at such time(s) as specified in the Restricted Stock Unit Agreement.  Until an  Award of Restricted Stock Units is settled, the number of such Restricted Stock Units shall be  subject to adjustment pursuant to Article 9.  8.6 Death of Recipient.  Any Restricted Stock Units that become payable after the  recipient’s death shall be distributed to the recipient’s beneficiary or beneficiaries.  Each  recipient of Restricted Stock Units under the Plan may designate one or more beneficiaries for  this purpose by filing the prescribed form with the Company.  A beneficiary designation may be  changed by filing the prescribed form with the Company at any time before the Award  recipient’s death.  If no beneficiary was designated or if no designated beneficiary survives the  Award recipient, then any Restricted Stock Units that become payable after the recipient’s death  shall be distributed to the recipient’s estate.  8.7 Modification or Assumption of Restricted Stock Units.  Within the limitations  of the Plan, the Administrator may modify or assume outstanding restricted stock units or may  accept the cancellation of outstanding restricted stock units (whether granted by the Company or  by another issuer) in return for the grant of new Restricted Stock Units for the same or a different  number of shares or in return for the grant of a different type of Award.  The foregoing  notwithstanding, no modification of a Restricted Stock Unit shall, without the consent of the  Participant, materially impair his or her rights or obligations under such Restricted Stock Unit.  8.8 Creditors’ Rights.  A holder of Restricted Stock Units shall have no rights other  than those of a general creditor of the Company.  Restricted Stock Units represent an unfunded  and unsecured obligation of the Company, subject to the terms and conditions of the applicable  Restricted Stock Unit Agreement.  





 






    US-DOCS\136942439.4  ARTICLE 9.   ADJUSTMENTS; DISSOLUTIONS AND LIQUIDATIONS; CORPORATE  TRANSACTIONS.  9.1 Adjustments.  In the event of a subdivision of the outstanding Common Shares, a  declaration of a dividend payable in Common Shares, a combination or consolidation of the  outstanding Common Shares (by reclassification or otherwise) into a lesser number of Common  Shares or any other increase or decrease in the number of issued Common Shares effected  without receipt of consideration by the Company, proportionate adjustments shall be made to the  following:  (a) The number and kind of shares available for issuance under Article 3,  including the numerical share limits in Articles 3.1 and 3.5;  (b) The number and kind of shares covered by each outstanding Option, SAR  and Restricted Stock Unit; and/or  (c) The Exercise Price applicable to each outstanding Option and SAR, and  the repurchase price, if any, applicable to Restricted Shares.  In the event of a declaration of an extraordinary dividend payable in a form other than Common  Shares in an amount that has a material effect on the price of Common Shares, a recapitalization,  a spin-off or a similar occurrence, the Administrator may make such adjustments as it, in its sole  discretion, deems appropriate to the foregoing.  Any adjustment in the number of shares subject  to an Award under this Article 9.1 shall be rounded down to the nearest whole share, although  the Administrator in its sole discretion may make a cash payment in lieu of a fractional share.   Except as provided in this Article 9, a Participant shall have no rights by reason of any issuance  by the Company of stock of any class or securities convertible into stock of any class, any  subdivision or consolidation of shares of stock of any class, the payment of any stock dividend or  any other increase or decrease in the number of shares of stock of any class.  9.2 Dissolution or Liquidation.  To the extent not previously exercised or settled,  Options, SARs and Restricted Stock Units shall terminate immediately prior to the dissolution or  liquidation of the Company.  9.3 Corporate Transactions.  In the event that the Company is a party to a merger,  consolidation, or a Change in Control (other than one described in Article 14.7(d)), all Common  Shares acquired under the Plan and all Awards outstanding on the effective date of the  transaction shall be treated in the manner described in the definitive transaction agreement (or, in  the event the transaction does not entail a definitive agreement to which the Company is party, in  the manner determined by the Administrator, with such determination having final and binding  effect on all parties), which agreement or determination need not treat all Awards (or portions  thereof) in an identical manner. Unless an Award Agreement provides otherwise, the treatment  specified in the transaction agreement or by the Administrator may include (without limitation)  one or more of the following with respect to each outstanding Award:  (a) The continuation of such outstanding Award by the Company (if  the Company is the surviving entity);  





 






    US-DOCS\136942439.4  (b) The assumption of such outstanding Award by the surviving entity  or its parent, provided that the assumption of an Option or a SAR shall comply  with applicable tax requirements;  (c) The substitution by the surviving entity or its parent of an  equivalent award for such outstanding Award (including, but not limited to, an  award to acquire the same consideration paid to the holders of Common Shares in  the transaction), provided that the substitution of an Option or a SAR shall  comply with applicable tax requirements;  (d) In the case of an Option or SAR, the cancellation of such Award  without payment of any consideration. An Optionee shall be able to exercise his  or her outstanding Option or SAR, to the extent such Option or SAR is then  vested or becomes vested as of the effective time of the transaction, during a  period of not less than five full business days preceding the closing date of the  transaction, unless (i) a shorter period is required to permit a timely closing of the  transaction and (ii) such shorter period still offers the Optionee a reasonable  opportunity to exercise such Option or SAR;   (e) The cancellation of such Award and a payment to the Participant  with respect to each share subject to the portion of the Award that is vested or  becomes vested as of the effective time of the transaction equal to the excess of  (A) the value, as determined by the Administrator in its absolute discretion, of the  property (including cash) received by the holder of a Common Share as a result of  the transaction, over (if applicable) (B) the per-share Exercise Price of such  Award (such excess, if any, the “Spread”).  Such payment shall be made in the  form of cash, cash equivalents, or securities of the surviving entity or its parent  having a value equal to the Spread.  In addition, any escrow, holdback, earn-out or  similar provisions in the transaction agreement may apply to such payment to the  same extent and in the same manner as such provisions apply to the holders of  Common Shares.  If the Spread applicable to an Award (whether or not vested)  is zero or a negative number, then the Award may be cancelled without making a  payment to the Participant. In the event that an Award is subject to Code Section  409A, the payment described in this clause (e) shall be made on the settlement  date specified in the applicable Award Agreement, provided that settlement may  be accelerated in accordance with Treasury Regulation Section 1.409A-3(j)(4); or  (f) The assignment of any reacquisition or repurchase rights held by  the Company in respect of an Award of Restricted Shares to the surviving entity  or its parent, with corresponding proportionate adjustments made to the price per  share to be paid upon exercise of any such reacquisition or repurchase rights.  Unless an Award Agreement provides otherwise, each outstanding Award held by a Participant  who remains a Service Provider as of the effective time of a merger, consolidation or Change in  Control (other than one described in Article 14.7(d)) (a “Current Participant”) shall become  fully vested and, if applicable, exercisable (with any performance-based vesting conditions  applicable to an Award deemed achieved at 100% of target levels) immediately prior to the  effective time of the transaction.  However, the prior sentence shall not apply, and an outstanding  Award shall not become vested and, if applicable, exercisable, if and to the extent the Award is  





 






    US-DOCS\136942439.4  continued, assumed or substituted as provided for in clauses (a), (b) or (c) above.   In addition,  the prior two sentences shall not apply to an Award held by a Participant who is not a Current  Participant, unless an Award Agreement provides otherwise or unless the Company and the  acquirer agree otherwise.  For avoidance of doubt, the Administrator shall have the discretion, exercisable either at the time  an Award is granted or at any time while the Award remains outstanding, to provide for the  acceleration of vesting upon the occurrence of a Change in Control, whether or not the Award is  to be assumed or replaced in the transaction, or in connection with a termination of the  Participant’s service following a transaction.    Any action taken under this Article 9.3 shall either preserve a Award’s status as exempt from  Code Section 409A or comply with Code Section 409A.  ARTICLE 10.   OTHER AWARDS.    Subject in all events to the limitations under Article 3 above as to the number of Common  Shares available for issuance under this Plan, the Company may grant other forms of Awards not  specifically described herein and may grant awards under other plans or programs, where such  awards are settled in the form of Common Shares issued under this Plan.  Such Common Shares  shall be treated for all purposes under the Plan like Common Shares issued in settlement of  Restricted Stock Units and shall, when issued, reduce the number of Common Shares available  under Article 3.  ARTICLE 11.   LIMITATION ON RIGHTS.  11.1 Retention Rights.  Neither the Plan nor any Award granted under the Plan shall  be deemed to give any individual a right to remain a Service Provider.  The Company and its  Parents, Subsidiaries and Affiliates reserve the right to terminate the service of any Service  Provider at any time, with or without cause, subject to applicable laws, the Company’s certificate  of incorporation and by-laws and a written employment agreement (if any).  11.2 Stockholders’ Rights.  Except as set forth in Article 7.4 or 8.4 above, a  Participant shall have no dividend rights, voting rights or other rights as a stockholder with  respect to any Common Shares covered by his or her Award prior to the time when a stock  certificate for such Common Shares is issued or, if applicable, the time when he or she becomes  entitled to receive such Common Shares by filing any required notice of exercise and paying any  required Exercise Price.  No adjustment shall be made for cash dividends or other rights for  which the record date is prior to such time, except as expressly provided in the Plan.  11.3 Regulatory Requirements.  Any other provision of the Plan notwithstanding, the  obligation of the Company to issue Common Shares under the Plan shall be subject to all  applicable laws, rules and regulations and such approval by any regulatory body as may be  required.  The Company reserves the right to restrict, in whole or in part, the delivery of  Common Shares pursuant to any Award prior to the satisfaction of all legal requirements relating  to the issuance of such Common Shares, to their registration, qualification or listing or to an  exemption from registration, qualification or listing.  The inability of the Company to obtain  authority from any regulatory body having jurisdiction, which authority is deemed necessary by  the Company’s counsel to be necessary to the lawful issuance and sale of any Common Shares  





 






    US-DOCS\136942439.4  hereunder, will relieve the Company of any liability in respect of the failure to issue or sell such  Common Shares as to which such requisite authority will not have been obtained.  11.4 Transferability of Awards.  The Administrator may, in its sole discretion, permit  transfer of an Award in a manner consistent with applicable law.  Unless otherwise determined  by the Administrator, Awards shall be transferable by a Participant only by (a) beneficiary  designation, (b) a will or (c) the laws of descent and distribution.  11.5 Recoupment Policy.  All Awards granted under the Plan, all amounts paid under  the Plan and all Common Shares issued under the Plan shall be subject to recoupment, clawback  or recovery by the Company in accordance with applicable law and with Company policy  (whenever adopted) regarding same, whether or not such policy is intended to satisfy the  requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the  Sarbanes-Oxley Act, or other applicable law, as well as any implementing regulations and/or  listing standards thereunder.  11.6 Other Conditions and Restrictions on Common Shares.  Any Common Shares  issued under the Plan shall be subject to such forfeiture conditions, rights of repurchase, rights of  first refusal, other transfer restrictions and such other terms and conditions as the Administrator  may determine.  Such conditions and restrictions shall be set forth in the applicable Award  Agreement and shall apply in addition to any restrictions that may apply to holders of Common  Shares generally.  In addition, Common Shares issued under the Plan shall be subject to such  conditions and restrictions imposed either by applicable law or by Company policy, as adopted  from time to time, designed to ensure compliance with applicable law or laws with which the  Company determines in its sole discretion to comply including in order to maintain any statutory,  regulatory or tax advantage.   ARTICLE 12.   TAXES.  12.1 General.  It is a condition to each Award under the Plan that a Participant or his  or her successor shall make arrangements satisfactory to the Company for the satisfaction of any  federal, state, local or foreign withholding tax obligations that arise in connection with any  Award granted under the Plan.  The Company shall not be required to issue any Common Shares  or make any cash payment under the Plan unless such obligations are satisfied.  12.2 Share Withholding.  To the extent that applicable law subjects a Participant to  tax withholding obligations, the Administrator may permit such Participant to satisfy all or part  of such obligations by having the Company withhold all or a portion of any Common Shares that  otherwise would be issued to him or her or by surrendering all or a portion of any Common  Shares that he or she previously acquired.  Such Common Shares shall be valued on the date  when they are withheld or surrendered.  Any payment of taxes by assigning Common Shares to  the Company may be subject to restrictions including any restrictions required by the SEC,  accounting or other rules.  12.3 Section 409A Matters.  Except as otherwise expressly set forth in an Award  Agreement, it is intended that Awards granted under the Plan either be exempt from, or comply  with, the requirements of Code Section 409A.  To the extent an Award is subject to Code Section  409A (a “409A Award”), the terms of the Plan, the Award and any written agreement governing  the Award shall be interpreted to comply with the requirements of Code Section 409A so that the  





 






    US-DOCS\136942439.4  Award is not subject to additional tax or interest under Code Section 409A, unless the  Administrator expressly provides otherwise.  A 409A Award shall be subject to such additional  rules and requirements as specified by the Administrator from time to time in order for it to  comply with the requirements of Code Section 409A.  In this regard, if any amount under a 409A  Award is payable upon a “separation from service” to an individual who is considered a  “specified employee” (as each term is defined under Code Section 409A), then no such payment  shall be made prior to the date that is the earlier of (i) six months and one day after the  Participant’s separation from service or (ii) the Participant’s death, but only to the extent such  delay is necessary to prevent such payment from being subject to Code Section 409A(a)(1).    12.4 Limitation on Liability.  Neither the Company nor any person serving as  Administrator shall have any liability to a Participant in the event an Award held by the  Participant fails to achieve its intended characterization under applicable tax law.  ARTICLE 13.   FUTURE OF THE PLAN.  13.1 Term of the Plan.  The Plan, as set forth herein, shall become effective on the   date of its adoption by the Board.  The Plan shall terminate automatically 10 years after the date  when the Board adopted the Plan, but Awards previously granted may extend beyond that date in  accordance with the Plan.    13.2 Amendment or Termination.  The Board may, at any time and for any reason,  amend or terminate the Plan.  No Awards shall be granted under the Plan after the termination  thereof.  The termination of the Plan, or any amendment thereof, shall not affect any Award  previously granted under the Plan.  ARTICLE 14.   DEFINITIONS.  14.1 “Administrator” means the Board or any Committee administering the Plan in  accordance with Article 2.  14.2 “Affiliate” means any entity other than a Subsidiary, if the Company and/or one  or more Subsidiaries own not less than 50% of such entity.   14.3 “Award” means any award granted under the Plan, including as an Option, a  SAR, a Restricted Share award, a Restricted Stock Unit award or another form of equity-based  compensation award.   14.4 “Award Agreement” means a Stock Option Agreement, a SAR Agreement, a  Restricted Stock Agreement, a Restricted Stock Unit Agreement or such other agreement  evidencing an Award granted under the Plan.  14.5 “Board” means the Company’s Board of Directors, as constituted from time to  time and, where the context so requires, reference to the “Board” may refer to a Committee to  whom the Board has delegated authority to administer any aspect of this Plan.  14.6 “Change in Control” means:  (a) Any “person” (as such term is used in Sections 13(d) and 14(d) of the  Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act),  





 






    US-DOCS\136942439.4  directly or indirectly, of securities of the Company representing more than fifty percent (50%) of  the total voting power represented by the Company’s then-outstanding voting securities;   (b) The consummation of the sale or disposition by the Company of all or  substantially all of the Company’s assets;   (c) The consummation of a merger or consolidation of the Company with or  into any other entity, other than a merger or consolidation which would result in the voting  securities of the Company outstanding immediately prior thereto continuing to represent (either  by remaining outstanding or by being converted into voting securities of the surviving entity or  its parent) more than fifty percent (50%) of the total voting power represented by the voting  securities of the Company or such surviving entity or its parent outstanding immediately after  such merger or consolidation; or  (d) Individuals who are members of the Board (the “Incumbent Board”)  cease for any reason to constitute at least a majority of the members of the Board over a period  of 12 months; provided, however, that if the appointment or election (or nomination for election)  of any new Board member was approved or recommended by a majority vote of the members of  the Incumbent Board then still in office, such new member shall, for purposes of this Plan, be  considered as a member of the Incumbent Board.  A transaction shall not constitute a Change in Control if its sole purpose is to change the state of  the Company’s incorporation or to create a holding company that will be owned in substantially  the same proportions by the persons who held the Company’s securities immediately before such  transaction.  In addition, if a Change in Control constitutes a payment event with respect to any  Award which provides for a deferral of compensation and is subject to Code Section 409A, then  notwithstanding anything to the contrary in the Plan or applicable Award Agreement the  transaction with respect to such Award must also constitute a “change in control event” as  defined in Treasury Regulation Section 1.409A-3(i)(5) to the extent required by Code Section  409A.    14.7 “Code” means the Internal Revenue Code of 1986, as amended.  14.8 “Committee” means a committee of one or more members of the Board,  or of other individuals satisfying applicable laws, appointed by the Board to administer the Plan.    14.9 “Common Share” means one share of the Company’s Common Stock.  14.10 “Company” means Energy Vault Holdings, Inc., a Delaware corporation.  14.11 “Consultant” means a consultant or adviser who provides bona fide  services to the Company, a Parent, a Subsidiary or an Affiliate as an independent contractor and  who qualifies as a consultant or advisor under Instruction A.1.(a)(1) of Form S-8 under the  Securities Act.  14.12 “Director” means a Board member.  14.1 “Eligible Individual” means any individual hired as a new Employee or  rehired as an Employee following a bona fide period of interruption of employment if such  





 






    US-DOCS\136942439.4  person is granted an Award as a material inducement to his or her entering into employment with  the Company or a Subsidiary (within the meaning of NYSE Rule 303A.08).  14.2 “Employee” means a common-law employee of the Company, a Parent, a  Subsidiary or an Affiliate.  14.3 “Exchange Act” means the Securities Exchange Act of 1934, as amended.  14.4 “Exercise Price,” in the case of an Option, means the amount for which  one Common Share may be purchased upon exercise of such Option, as specified in the  applicable Stock Option Agreement.  “Exercise Price,” in the case of a SAR, means an amount,  as specified in the applicable SAR Agreement, which is subtracted from the Fair Market Value  of one Common Share in determining the amount payable upon exercise of such SAR.  14.5 “Fair Market Value” means the closing price of a Common Share on any  established stock exchange or a national market system on the applicable date or, if the  applicable date is not a trading day, on the last trading day prior to the applicable date, as  reported in a source that the Administrator deems reliable.  If Common Shares are not traded on  an established stock exchange or a national market system, the Fair Market Value shall be  determined by the Administrator in good faith on such basis as it deems appropriate.  The  Administrator’s determination shall be conclusive and binding on all persons.  Notwithstanding  the foregoing, the determination of Fair Market Value in all cases shall be in accordance with the  requirements set forth under Section 409A of the Code to the extent necessary for an Award to  comply with, or be exempt from, Section 409A of the Code.  14.6 “Independent Director” means a director who qualifies as “independent”  within the meaning of New York Stock Exchange Rule 303A.02, or any successor rule, as such  rule may be amended from time to time.  14.7 “NYSE Rule 303A.08” means New York Stock Exchange Rule 303A.08,  or any successor rule, and all guidance and other interpretative authority thereunder, as such rule,  guidance and other authority may be amended from time to time.  14.8 “NSO” means a stock option not described in Code Sections 422 or 423.  14.9 “Option” means a NSO granted under the Plan and entitling the holder to  purchase Common Shares.  14.10 “Optionee” means an individual or estate holding an Option or SAR.  14.11 “Outside Director” means a member of the Board who is not an  Employee.  14.12 “Parent” means any corporation (other than the Company) in an unbroken  chain of corporations ending with the Company, if each of the corporations other than the  Company owns stock possessing 50% or more of the total combined voting power of all classes  of stock in one of the other corporations in such chain.  A corporation that attains the status of a  Parent on a date after the adoption of the Plan shall be considered a Parent commencing as of  such date.  





 






    US-DOCS\136942439.4  14.13 “Participant” means an Eligible Individual who has been granted an  Award.  14.14 “Plan” means this Energy Vault Holdings, Inc. 2022 Employment  Inducement Award Plan, as it may be amended and/or restated from time to time.  14.15 “Restricted Share” means a Common Share awarded under Article 7 of  the Plan.  14.16 “Restricted Stock Agreement” means the agreement consistent with the  terms of the Plan between the Company and the recipient of a Restricted Share that contains the  terms, conditions and restrictions pertaining to such Restricted Share.  14.17 “Restricted Stock Unit” means a bookkeeping entry representing the  equivalent of one Common Share, as awarded under the Plan.  14.18 “Restricted Stock Unit Agreement” means the agreement consistent with  the terms of the Plan between the Company and the recipient of a Restricted Stock Unit that  contains the terms, conditions and restrictions pertaining to such Restricted Stock Unit.  14.19 “SAR” means a stock appreciation right granted under the Plan.  14.20 “SAR Agreement” means the agreement consistent with the terms of the  Plan between the Company and an Optionee that contains the terms, conditions and restrictions  pertaining to his or her SAR.  14.21 “Securities Act” means the Securities Act of 1933, as amended.  14.22 “Service Provider” means any individual who is an Employee, Outside  Director or Consultant, including any prospective Employee, Outside Director or Consultant who  has accepted an offer of employment or service and will be an Employee, Outside Director or  Consultant after the commencement of their service.  14.23 “Stock Option Agreement” means the agreement consistent with the  terms of the Plan between the Company and an Optionee that contains the terms, conditions and  restrictions pertaining to his or her Option.  14.24 “Subsidiary” means any corporation (other than the Company) in an  unbroken chain of corporations beginning with the Company, if each of the corporations other  than the last corporation in the unbroken chain owns stock possessing 50% or more of the total  combined voting power of all classes of stock in one of the other corporations in such chain.  A  corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be  considered a Subsidiary commencing as of such date.  ARTICLE 15.   LANGUAGE  15.1 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.