Exhibit



Exhibit 10.1



ROCKET FUEL INC.
2013 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
NOTICE OF GRANT OF RESTRICTED STOCK UNITS
Unless otherwise defined herein, the terms defined in the 2013 Equity Incentive Plan (the “Plan”) shall have the same defined meanings in this Restricted Stock Unit Award Agreement, including the Notice of Grant of Restricted Stock Units (the “Notice of Grant”), the Terms and Conditions of Restricted Stock Unit Grant (the “Terms & Conditions”), and any appendices and exhibits attached thereto (all together, the “Award Agreement”).


Name (“Participant”):  %%FIRST_NAME%-% %%MIDDLE_NAME%-% %%LAST_NAME%-%


	
		
	Address:
	%%ADDRESS_LINE_1%-%

	 
	%%ADDRESS_LINE_2%-% %%ADDRESS_LINE_3%-%

	 
	%%CITY%-%, %%STATE%-% %%ZIPCODE%-%

	 
	%%COUNTRY%-%




The undersigned Participant has been granted the right to receive an Award of Restricted Stock Units, subject to the terms and conditions of the Plan and this Award Agreement, as follows:


	
			
	Date of Grant
	 
	%%OPTION_DATE,'MM/DD/YYYY'%-%

	 
	 
	 

	Vesting Commencement Date
	 
	%%VEST_BASE_DATE,'MM/DD/YYYY'%-%

	 
	 
	 

	Number of Restricted Stock Units
	 
	230,000

	 
	 
	 

	Vesting Schedule
	 
	The Restricted Stock Units are eligible to vest only if certain performance goals, described in detail in Exhibit A, are satisfied.  Once eligible to vest, the Restricted Stock Units will be scheduled to vest in accordance with additional time-based vesting requirements set forth in Exhibit A.  Vesting is subject to continued status as a Service Provider through the applicable vesting date.




Vesting Schedule:
Participant acknowledges receipt of a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts this Award Agreement subject to all of the terms and provisions thereof, including Exhibit A.  Participant has reviewed the Plan and this Award 


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Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Award Agreement and fully understands all provisions of this Award Agreement, including Exhibit A hereto.  Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan or this Award Agreement.  Participant further agrees to notify the Company upon any change in the residence address indicated below.
	
				
	PARTICIPANT
	 
	ROCKET FUEL INC.

	 
	 
	 
	 

	 
	 
	 
	 

	 
	 
	 
	 

	Signature
	 
	 
	By

	 
	 
	 
	 

	%%FIRST_NAME%-% %%MIDDLE_NAME%-% %%LAST_NAME%-%
	 
	Emmett Randolph Wootton III

	Print Name
	 
	 
	Print Name

	 
	 
	 
	 

	 
	 
	 
	CEO

	 
	 
	 
	Title

	 
	 
	 
	 

	Address:
	 
	 
	 

	 
	%%ADDRESS_LINE_1%-%

	 
	%%ADDRESS_LINE_2%-%, %%ADDRESS_LINE_3%-%

	 
	%%CITY%-%, %%STATE%-% %%ZIPCODE%-%

	 
	%%COUNTRY%-%








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ROCKET FUEL INC.
2013 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
TERMS AND CONDITIONS OF RESTRICTED STOCK UNIT GRANT
1.    Grant of Restricted Stock Units.  The Company hereby grants to the individual (the “Participant”) named in the Notice of Grant of Restricted Stock Units of this Award Agreement (the “Notice of Grant”) under the Plan an Award of Restricted Stock Units, subject to all of the terms and conditions in this Award Agreement and the Plan, which is incorporated herein by reference.  Subject to Section 19(c) of the Plan, in the event of a conflict between the terms and conditions of the Plan and this Award Agreement, the terms and conditions of the Plan shall prevail.
2.    Company’s Obligation to Pay.  Each Restricted Stock Unit represents the right to receive a Share on the date it vests.  Unless and until the Restricted Stock Units will have vested in the manner set forth in Section 3 or 4, Participant will have no right to payment of any such Restricted Stock Units.  Prior to actual payment of any vested Restricted Stock Units, such Restricted Stock Unit will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.
3.    Vesting Schedule.  Except as provided in Section 4, and subject to Section 5, the Restricted Stock Units awarded by this Award Agreement will vest in accordance with the vesting schedule set forth in the Notice of Grant and Exhibit A, subject to Participant continuing to be a Service Provider through each applicable vesting date.
4.    Payment after Vesting.
(a)    General Rule.  Subject to Section 8, any Restricted Stock Units that vest will be paid to Participant (or in the event of Participant’s death, to his or her properly designated beneficiary or estate) in whole Shares.  Subject to the provisions of Section 4(b), such vested Restricted Stock Units shall be paid in whole Shares as soon as practicable after vesting, but in each such case within sixty (60) days following the vesting date.  In no event will Participant be permitted, directly or indirectly, to specify the taxable year of payment of any Restricted Stock Units payable under this Award Agreement.
(b)    Acceleration.
(i)    Discretionary Acceleration.  The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Restricted Stock Units at any time, subject to the terms of the Plan. If so accelerated, such Restricted Stock Units will be considered as having vested as of the date specified by the Administrator.  If Participant is a U.S. taxpayer, the payment of Shares vesting pursuant to this Section 4(b) shall in all cases be paid at a time or in a manner that is exempt from, or complies with, Section 409A.  The prior sentence may be superseded in a future agreement or amendment to this Award Agreement only by direct and specific reference to such sentence. 




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(ii)    Notwithstanding anything in the Plan or this Award Agreement or any other agreement (whether entered into before, on or after the Date of Grant), if the vesting of the balance, or some lesser portion of the balance, of the Restricted Stock Units is accelerated in connection with Participant’s termination as a Service Provider (provided that such termination is a “separation from service” within the meaning of Section 409A, as determined by the Company), other than due to Participant’s death, and if (x) Participant is a U.S. taxpayer and a “specified employee” within the meaning of Section 409A at the time of such termination as a Service Provider and (y) the payment of such accelerated Restricted Stock Units will result in the imposition of additional tax under Section 409A if paid to Participant on or within the six (6) month period following Participant’s termination as a Service Provider, then the payment of such accelerated Restricted Stock Units will not be made until the date six (6) months and one (1) day following the date of Participant’s termination as a Service Provider, unless Participant dies following his or her termination as a Service Provider, in which case, the Restricted Stock Units will be paid in Shares to Participant’s estate as soon as practicable following his or her death. 
(c)    Section 409A.  It is the intent of this Award Agreement that it and all payments and benefits to U.S. taxpayers hereunder be exempt from, or comply with, the requirements of Section 409A so that none of the Restricted Stock Units provided under this Award Agreement or Shares issuable thereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to be so exempt or so comply.  Each payment payable under this Award Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).  For purposes of this Award Agreement, “Section 409A” means Section 409A of the Code, and any final Treasury Regulations and Internal Revenue Service guidance thereunder, as each may be amended from time to time.
5.    Forfeiture Upon Termination as a Service Provider.  Notwithstanding any contrary provision of this Award Agreement, if Participant ceases to be a Service Provider for any or no reason, the then-unvested Restricted Stock Units awarded by this Award Agreement will thereupon be forfeited at no cost to the Company and Participant will have no further rights thereunder, except as necessary to accommodate any remaining eligibility to vest in such Restricted Stock Units pursuant to the Retention Agreement (as defined in Exhibit A hereto).
6.    Tax Consequences.  Participant has reviewed with its own tax advisors the U.S. federal, state, local and foreign tax consequences of this investment and the transactions contemplated by this Award Agreement.  With respect to such matters, Participant relies solely on such advisors and not on any statements or representations of the Company or any of its agents, written or oral.  Participant understands that Participant (and not the Company) shall be responsible for Participant’s own tax liability that may arise as a result of this investment or the transactions contemplated by this Award Agreement.
7.    Death of Participant.  Any distribution or delivery to be made to Participant under this Award Agreement will, if Participant is then deceased, be made to Participant’s designated beneficiary, or if no beneficiary survives Participant, the administrator or executor of Participant’s estate.  Any such transferee must furnish the Company with (a) written notice of his or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.


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8.    Tax Obligations
(a)    Responsibility for Taxes.  Participant acknowledges that, regardless of any action taken by the Company or, if different, Participant’s employer (the “Employer”), the ultimate liability for any tax and/or social insurance liability obligations and requirements in connection with the Restricted Stock Units, including, without limitation, (a) all federal, state, and local taxes (including the Participant’s Federal Insurance Contributions Act (FICA) obligation) that are required to be withheld by the Company or the Employer or other payment of tax-related items related to Participant’s participation in the Plan and legally applicable to Participant, (b) the Participant’s and, to the extent required by the Company (or Employer), the Company’s (or Employer’s) fringe benefit tax liability, if any, associated with the grant, vesting, or exercise of the Restricted Stock Units or sale of Shares, and (c) any other Company (or Employer) taxes the responsibility for which the Participant has, or has agreed to bear, with respect to the Restricted Stock Units (or exercise thereof or issuance of Shares thereunder) (collectively, the “Tax Obligations”), is and remains Participant’s responsibility and may exceed the amount actually withheld by the Company or the Employer.  Participant further acknowledges that the Company and/or the Employer (i) make no representations or undertakings regarding the treatment of any Tax Obligations in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant, vesting or settlement of the Restricted Stock Units, the subsequent sale of Shares acquired pursuant to such settlement and the receipt of any dividends or other distributions, and (ii) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Restricted Stock Units to reduce or eliminate Participant’s liability for Tax Obligations or achieve any particular tax result.  Further, if Participant is subject to Tax Obligations in more than one jurisdiction between the Date of Grant and the date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges that the Company and/or the Employer (or former employer, as applicable) may be required to withhold or account for Tax Obligations in more than one jurisdiction.  If Participant fails to make satisfactory arrangements for the payment of any required Tax Obligations hereunder at the time of the applicable taxable event, Participant acknowledges and agrees that the Company may refuse to issue or deliver the Shares.
(b)    Tax Withholding. When Shares are issued as payment for vested Restricted Stock Units, Participant generally will recognize immediate U.S. taxable income if Participant is a U.S. taxpayer.  If Participant is a non-U.S. taxpayer, Participant will be subject to applicable taxes in his or her jurisdiction.  Pursuant to such procedures as the Administrator may specify from time to time, the Company and/or Employer shall withhold the minimum amount required to be withheld for the payment of Tax Obligations.  The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit Participant to satisfy such Tax Obligations, in whole or in part (without limitation), if permissible by applicable local law, by (a) paying cash, (b) electing to have the Company withhold otherwise deliverable Shares having a Fair Market Value equal to the amount of such Tax Obligations, (c) withholding the amount of such Tax Obligations from Participant’s wages or other cash compensation paid to Participant by the company and/or the Employer, (d) delivering to the Company already vested and owned Shares having a Fair Market Value equal to such Tax Obligations, or (e) selling a sufficient number of such Shares otherwise deliverable to Participant through such means as the Company may determine in its sole discretion (whether through a broker or otherwise) equal to 


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the amount of the Tax Obligations.  To the extent determined appropriate by the Company in its discretion, it will have the right (but not the obligation) to satisfy any Tax Obligations by reducing the number of Shares otherwise deliverable to Participant and, until determined otherwise by the Company, this will be the method by which such Tax Obligations are satisfied.  Further, if Participant is subject to tax in more than one jurisdiction between the Date of Grant and a date of any relevant taxable or tax withholding event, as applicable, Participant acknowledges and agrees that the Company and/or the Employer (and/or former employer, as applicable) may be required to withhold or account for tax in more than one jurisdiction. If Participant fails to make satisfactory arrangements for the payment of such Tax Obligations hereunder at the time any applicable Restricted Stock Units otherwise are scheduled to vest pursuant to Sections 3 or 4, Participant will permanently forfeit such Restricted Stock Units and any right to receive Shares thereunder and the Restricted Stock Units will be returned to the Company at no cost to the Company.  Participant acknowledges and agrees that the Company may refuse to deliver the Shares if such Tax Obligations are not delivered at the time they are due.
9.    Rights as Stockholder.  Neither Participant nor any person claiming under or through Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares (which may be in book entry form) will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to Participant (including through electronic delivery to a brokerage account).  After such issuance, recordation and delivery, Participant will have all the rights of a stockholder of the Company with respect to voting such Shares and receipt of dividends and distributions on such Shares.
10.    No Guarantee of Continued Service.  PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (OR THE EMPLOYER) AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS RESTRICTED STOCK UNIT AWARD OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE EMPLOYER) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.
11.    Grant is Not Transferable.  Except to the limited extent provided in Section 7, this grant and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process.  Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.


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12.    Nature of Grant.  In accepting the grant, Participant acknowledges, understands and agrees that:
(a)    the grant of the Restricted Stock Units is 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; 
(b)    all decisions with respect to future Restricted Stock Units or other grants, if any, will be at the sole discretion of the Company; 
(c)    Participant is voluntarily participating in the Plan; 
(d)    the Restricted Stock Units and the Shares subject to the Restricted Stock Units are not intended to replace any pension rights or compensation;
(e)    the Restricted Stock Units and the Shares subject to the Restricted Stock Units, and the income and value of same, are not part of normal or expected compensation for purposes of calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar payments; 
(f)    the future value of the underlying Shares is unknown, indeterminable and cannot be predicted; 
(g)    for purposes of the Restricted Stock Units, Participant’s status as a Service Provider will be considered terminated as of the date Participant is no longer actively providing services to the Company or any Parent or Subsidiary (regardless of the reason for such termination and whether or not later to be found invalid or in breach of employment laws in the jurisdiction where Participant is a Service Provider or the terms of Participant’s employment or service agreement, if any), and unless otherwise expressly provided in this Award Agreement (including by reference in the Notice of Grant to other arrangements or contracts) or determined by the Administrator, Participant’s right to vest in the Restricted Stock Units under the Plan, if any, will terminate as of such date and will not be extended by any notice period (e.g., Participant’s period of service would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where Participant is a Service Provider or the terms of Participant’s employment or service agreement, if any, unless Participant is providing bona fide services during such time); the Administrator shall have the exclusive discretion to determine when Participant is no longer actively providing services for purposes of the Restricted Stock Units grant (including whether Participant may still be considered to be providing services while on a leave of absence); 
(h)    unless otherwise provided in the Plan or by the Company in its discretion, the Restricted Stock Units and the benefits evidenced by this Award Agreement do not create any entitlement to have the Restricted Stock Units or any such benefits transferred to, or assumed by, another company nor be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Shares; and


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(i)    the following provisions apply only if Participant is providing services outside the United States:
(i)    the Restricted Stock Units and the Shares subject to the Restricted Stock Units are not part of normal or expected compensation or salary for any purpose;
(ii)    Participant acknowledges and agrees that none of the Company, the Employer or any Parent or Subsidiary shall be liable for any foreign exchange rate fluctuation between Participant’s local currency and the United States Dollar that may affect the value of the Restricted Stock Units or of any amounts due to Participant pursuant to the settlement of the Restricted Stock Units or the subsequent sale of any Shares acquired upon settlement; and
(iii)    no claim or entitlement to compensation or damages shall arise from forfeiture of the Restricted Stock Units resulting from the termination of Participant’s status as a Service Provider (for any reason whatsoever whether or not later found to be invalid or in breach of employment laws in the jurisdiction where Participant is a Service Provider or the terms of Participant’s employment or service agreement, if any), and in consideration of the grant of the Restricted Stock Units to which Participant is otherwise not entitled, Participant irrevocably agrees never to institute any claim against the Company, any Parent or Subsidiary or the Employer, waives his or her ability, if any, to bring any such claim, and releases the Company, any Parent or Subsidiary and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then, by participating in the Plan, Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such claim.
13.    No Advice Regarding Grant.  The Company is not providing any tax, legal or financial advice, nor is the Company making any recommendations regarding Participant’s participation in the Plan, or Participant’s acquisition or sale of the underlying Shares.  Participant is hereby advised to consult with his or her own personal tax, legal and financial advisors regarding his or her participation in the Plan before taking any action related to the Plan.
14.    Data Privacy.  Participant hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of Participant’s personal data as described in this Award Agreement and any other Restricted Stock Unit grant materials by and among, as applicable, the Employer, the Company and any Parent or Subsidiary for the exclusive purpose of implementing, administering and managing Participant’s participation in the Plan.


Participant understands that the Company and the Employer may hold certain personal information about Participant, including, but not limited to, Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the Company, details of all Restricted Stock Units or any other entitlement to Shares awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan.  


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Participant understands that Data will be transferred to a stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan.  Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipients’ country of operation (e.g., the United States) may have different data privacy laws and protections than Participant’s country.  Participant understands that if he or she resides outside the United States, he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative.  Participant authorizes the Company, any stock plan service provider selected by the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing his or her participation in the Plan.  Participant understands that Data will be held only as long as is necessary to implement, administer and manage Participant’s participation in the Plan.  Participant understands if he or she resides outside the United States, he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing his or her local human resources representative.  Further, Participant understands that he or she is providing the consents herein on a purely voluntary basis.  If Participant  does not consent, or if Participant later seeks to revoke his or her consent, his or her status as a Service Provider and career with the Employer will not be adversely affected; the only adverse consequence of refusing or withdrawing Participant’s consent is that the Company would not be able to grant Participant Restricted Stock Units or other equity awards or administer or maintain such awards.  Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan.  For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he or she may contact his or her local human resources representative.
15.    Address for Notices.  Any notice to be given to the Company under the terms of this Award Agreement will be addressed to the Company at Rocket Fuel Inc., 350 Marine Parkway, Marina Park Center, Suite 220, Redwood Shores, CA 94065, or at such other address as the Company may hereafter designate in writing.
16.    Electronic Delivery.  The Company may, in its sole discretion, decide to deliver any documents related to the Restricted Stock Units awarded under the Plan or future Restricted Stock Units that may be awarded under the Plan by electronic means or request Participant’s consent to participate in the Plan by electronic means.  Participant hereby consents to receive such documents by electronic delivery and agrees 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.
17.    No Waiver.  Either party’s failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions, nor prevent that party from thereafter enforcing each and every other provision of this Agreement.  The rights granted both parties herein are cumulative and shall not constitute a waiver of either party’s right to assert all other legal remedies available to it under the circumstances.


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18.    Successors and Assigns.  The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the successors and assigns of the Company.  Subject to the restrictions on transfer herein set forth, this Agreement shall be binding upon Participant and his or her heirs, executors, administrators, successors and assigns.  The rights and obligations of Participant under this Agreement may only be assigned with the prior written consent of the Company.
19.    Additional Conditions to Issuance of Stock.  If at any time the Company will determine, in its discretion, that the listing, registration, qualification or rule compliance of the Shares upon any securities exchange or under any state, federal or foreign law, the tax code and related regulations or under the rulings or regulations of the United States Securities and Exchange Commission or any other governmental regulatory body or the clearance, consent or approval of the United States Securities and Exchange Commission or any other governmental regulatory authority is necessary or desirable as a condition to the issuance of Shares to Participant (or his or her estate) hereunder, such issuance will not occur unless and until such listing, registration, qualification, rule compliance, clearance, consent or approval will have been completed, effected or obtained free of any conditions not acceptable to the Company.  Subject to the terms of the Agreement and the Plan, the Company shall not be required to issue any certificate or certificates for Shares hereunder prior to the lapse of such reasonable period of time following the date of vesting of the Restricted Stock Units as the Administrator may establish from time to time for reasons of administrative convenience.
20.    Language.  If Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the English version will control.
21.    Interpretation.  The Administrator will have the power to interpret the Plan and this Award Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Restricted Stock Units have vested).  All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons.  Neither the Administrator nor any person acting on behalf of the Administrator will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Award Agreement.
22.    Modifications to the Agreement.  This Award Agreement constitutes the entire understanding of the parties on the subjects covered.  Participant expressly warrants that he or she is not accepting this Award Agreement in reliance on any promises, representations, or inducements other than those contained herein.  Modifications to this Award Agreement or the Plan can be made only in an express written contract executed by a duly authorized officer of the Company.  Notwithstanding anything to the contrary in the Plan or this Award Agreement, the Company reserves the right to revise this Award Agreement as it deems necessary or advisable, in its sole discretion and without the consent of Participant, to comply with Section 409A or to otherwise avoid imposition of any additional tax or income recognition under Section 409A in connection to this Award of Restricted Stock Units.


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23.    Governing Law; Severability.  This Award Agreement and the Restricted Stock Units are governed by the internal substantive laws, but not the choice of law rules, of California.  In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Award Agreement shall continue in full force and effect.
24.    Entire Agreement. The Plan is incorporated herein by reference. The Plan and this Award Agreement (including the exhibits referenced herein), and the Retention Agreement, constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof, and may not be modified adversely to the Participant’s interest except by means of a writing signed by the Company and Participant.






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EXHIBIT A
RESTRICTED STOCK UNIT 
VESTING CRITERIA
A.General.  The Restricted Stock Units are subject to both performance‐based requirements and additional service‐based vesting requirements.  The Restricted Stock Units will become eligible to vest only if the performance goals described below are satisfied, and then will vest only if the additional service‐based vesting requirements described below are met.
B.Performance-based Vesting Component.  Subject to Sections 3 and 4 of the Terms & Conditions or any acceleration provisions contained in the Plan or in the Management Retention Agreement entered into by and between the Company and Participant (the “Retention Agreement”), the actual number of Restricted Stock Units that will become eligible to vest (the “Eligible RSUs”) will be determined as follows:
(i)    Tranche 1: Fifty percent (50%) of the Restricted Stock Units (the “Tranche 1 RSUs”) will become Eligible RSUs upon the first day during the Performance Period (as defined below) upon which the Tranche 1 Performance Target has been met, provided that Participant remains a Service Provider through such Tranche 1 Performance Date.  The Restricted Stock Units that become Eligible RSUs pursuant to this clause (i) are the “Tranche 1 Eligible RSUs”.  
(ii)    Tranche 2: Fifty percent (50%) of the Restricted Stock Units (the “Tranche 2 RSUs”) will become Eligible RSUs upon the first day during the Performance Period upon which the Tranche 2 Performance Target has been met, provided that Participant remains a Service Provider through such Tranche 2 Performance Date. The Restricted Stock Units that become Eligible RSUs pursuant to this clause (ii) are the “Tranche 2 Eligible RSUs”.
C.Definitions. For purposes of this Agreement,
(i)    “Closing Price” means (i) if the Common Stock is listed on any established stock exchange or a national market system, including without limitation the NASDAQ Global Select Market, the closing sales price for a Share of such Common Stock as quoted on such exchange or system on the day of determination, as reported on the primary U.S. stock exchange (e.g., the Nasdaq Global Select Market) on which the Common Stock is listed.  
(ii)    “Performance Period” means the period beginning on the Date of Grant through and including the third (3rd) anniversary of the Date of Grant.  
(iii)    “Performance Target” means, either of the Tranche 1 Performance Target, Tranche 1 CIC Target, Tranche 2 Performance Target or the Tranche 2 CIC Target, and collectively,  the “Performance Targets”.
(iv)    “Tranche 1 Performance Date” means the first date during the Performance Period on which the Tranche 1 RSUs become Eligible RSUs.
(v)    “Tranche 2 Performance Date” means the first date during the Performance Period on which the Tranche 2 RSUs become Eligible RSUs.
(vi)     “Tranche 1 Performance Target” means, during the Performance Period, the average, trailing, thirty (30) calendar day Closing Price of a Share equals or exceeds $4.00.  


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(vii)    “Tranche 2 Performance Target” means, during the Performance Period, the average, trailing, thirty (30) calendar day Closing Price of a Share equals or exceeds $6.00.
D.Performance Target Adjustments.  In the event that during the Performance Period and prior to the achievement of an applicable Performance Target, any special dividend or other distribution impacting the Company’s capitalization table (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs, the Administrator may, in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available under this Award, proportionally adjust the applicable Performance Target (with any fraction of a cent as a result of such adjustment rounded up to the nearest whole cent). 
E.Service‐based Vesting Component.  In addition to meeting the performance‐based requirements described in Section B above, the Restricted Stock Units are subject to service‐based vesting requirements that apply if and when the Restricted Stock Units become Eligible RSUs: Subject to Sections 3 and 4 of the Terms & Conditions or any acceleration provisions contained in the Plan or in the Retention Agreement:
(i)    Tranche 1 Eligible RSUs shall vest on the eighteen (18)-month anniversary of the Tranche 1 Performance Date, subject to Participant continuing to be a Service Provider through such date; and
(ii)    Tranche 2 Eligible RSUs shall vest on the eighteen (18)-month anniversary of the Tranche 2 Performance Date, subject to Participant continuing to be a Service Provider through such date.
F.Effect of a Change in Control.  
(i)    Notwithstanding the foregoing, if a Change in Control occurs during the Performance Period but prior to the achievement of the Tranche 1 Performance Target or Tranche 2 Performance Target, as applicable, then immediately prior to, and conditioned upon, the consummation of a Change in Control (x) with a transaction price per Share equal to or in excess of $4.00 (the “Tranche 1 CIC Target”), the Tranche 1 RSUs will become Eligible RSUs, or (y) with a transaction price per Share equal to or in excess of $6.00 (the “Tranche 2 CIC Target”), the Tranche 2 RSUs will become Eligible RSUs, in each case of (x) and (y), provided that either (a) Participant remains a Service Provider as of immediately prior to such Change in Control or (b) Participant experiences a termination described in the first paragraph of Section 2.1 of the Retention Agreement.  The determination of the transaction price per Share will be determined in the good faith of the Administrator).
(ii)    With respect to the Restricted Stock Units granted under this Award only, Section 2.1.3 of the Retention Agreement is amended as provided in this Section E(ii), and the Retention Agreement otherwise remains in full force and effect:  The first three (3) sentences of Section 2.1.3 of the Retention Agreement shall be deleted and replaced in full with the following: “With respect to the circumstances described in Section 2.1(i), (ii) or (iii), 100% of any then-outstanding “Eligible RSUs” (as defined in the Restricted Stock Unit Award Agreement dated [DATE OF GRANT] between you and the Company) shall immediately accelerate vesting.”  For purposes of clarification, this Award Agreement does not amend the Retention Agreement with respect to any award other than the Award of Restricted Stock Units granted hereunder. 


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(iii)    If a Change in Control occurs during the Performance Period but prior to the achievement of the Tranche 1 Performance Target or Tranche 2 Performance Target, as applicable, and the Restricted Stock Units are not assumed or substituted for (as described in Section 14 of the Plan) in the Change in Control, and (x) the Tranche 1 CIC Target is not met in such Change in Control, then notwithstanding anything in Section 14(c) of the Plan to the contrary, any then-outstanding Tranche 1 RSUs shall terminate immediately prior to the Change in Control, and (y) the Tranche 2 CIC Target is not met in such Change in Control, then notwithstanding anything in Section 14(c) of the Plan to the contrary, any then-outstanding Tranche 2 RSUs shall terminate immediately prior to the Change in Control, in each case without ever having become Eligible RSUs or otherwise becoming eligible to vest. 
(iv)    If a Change in Control occurs while Participant remains a Service Provider and any then-outstanding Eligible RSUs are not assumed or substituted for (as described in Section 14 of the Plan) in the Change in Control, then notwithstanding anything in Section 14(c) of the Plan to the contrary, 100% of the then-outstanding Eligible RSUs shall immediately accelerate vesting effective as of immediately prior to, and conditioned upon, the consummation of the Change in Control.  
G.Forfeiture of Restricted Stock Units.  In the event Participant ceases to be a Service Provider for any or no reason before Participant vests in the Restricted Stock Units, the Restricted Stock Units and Participant’s right to acquire any Shares hereunder will immediately terminate, except as necessary to accommodate any remaining eligibility to vest in such Restricted Stock Units pursuant to the Retention Agreement as amended hereby. Further, any Restricted Stock Units which have not vested during the Performance Period, and Participant’s rights to acquire any Shares under such Restricted Stock Units, will immediately terminate and be forfeited upon the expiration of the Performance Period.




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