**Exhibit 4.16**

 

AmbiparEmergency Response 

2023Omnibus Incentive Plan

 

1.             Purpose.The purpose of the Ambipar Emergency Response 2023 Omnibus Incentive Plan is to provide a means through which the Company and the othermembers of the Company Group may attract and retain key personnel, and to provide a means whereby directors, officers, employees, consultants,and advisors of the Company and the other members of the Company Group can acquire and maintain an equity interest in the Company, orbe paid incentive compensation, including incentive compensation measured by reference to the value of Class A Ordinary Shares, therebystrengthening their commitment to the welfare of the Company Group and aligning their interests with those of the Company’s shareholders.

 

2.             Definitions.The following definitions shall be applicable throughout the Plan.

 

(a)            “**AbsoluteShare Limit**” has the meaning given to such term in Section 5(b) of the Plan.

 

(b)            “**AdjustmentEvent**” has the meaning given to such term in Section 10(a) of the Plan.

 

(c)            “**Affiliate**” means any Person that directly or indirectly controls, is controlled by, or is undercommon control with the Company. The term “control” (including, with correlative meaning, the terms “controlled by”and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power todirect or cause the direction of the management and policies of such Person, whether through the ownership of voting or other securities,appointing a majority of the board of directors, by contract, or otherwise.

 

(d)            “**Applicable Law**” means each law, rule, regulation and requirement, applicable to the Company including,but not limited to, each applicable U.S. federal, state or local law, any rule or regulation of the applicable securities exchange orinter-dealer quotation system on which the securities of the Company may be listed or quoted and each applicable law, rule or regulationof any other country or jurisdiction where Awards are granted under the Plan or Participants reside or provide services, as each suchlaws, rules and regulations shall be in effect from time to time.

 

(e)            “**Award**”means, individually or collectively, any Incentive Share Option, Nonqualified Share Option, Share Appreciation Right, Restricted Share,Restricted Share Unit, Other Equity-Based Award, and Other Cash-Based Award granted under the Plan.

 

(f)            “**AwardAgreement**” means the document or documents by which each Award (other than an Other Cash-Based Award) is evidenced, whichmay be in written or electronic form.

 

(g)            “**Board**”means the Board of Directors of the Company.

 

 

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(h)           “**Cause**”means, as to any Participant, unless the applicable Award Agreement states otherwise, (i) “Cause”, as defined in anyemployment, severance, consulting or other similar agreement between the Participant and the Service Recipient in effect at the timeof such Termination, or (ii) in the absence of any such employment, severance, consulting or other similar agreement (or the absenceof any definition of “Cause” contained therein), the Participant’s (A) willful neglect in the performance of theParticipant’s duties for the Service Recipient or willful or repeated failure or refusal to perform such duties; (B)engagement in conduct in connection with the Participant’s employment or service with the Service Recipient, which results in,or could reasonably be expected to result in, material harm to the business or reputation of the Service Recipient or any othermember of the Company Group; (C) conviction of, or plea of guilty or no contest to (I) any felony or (II) any other crime thatresults in, or could reasonably be expected to result in, material harm to the business or reputation of the Service Recipient orany other member of the Company Group; (D) material violation of the written policies of the Service Recipient, including, but notlimited to, those relating to sexual harassment or the disclosure or misuse of confidential information, or those set forth in themanuals or statements of policy of the Service Recipient; (E) fraud or misappropriation, embezzlement, or misuse of funds orproperty belonging to the Service Recipient or any other member of the Company Group; or (F) act of personal dishonesty thatinvolves personal profit in connection with the Participant’s employment or service to the Service Recipient; *provided*,in any case, that a Participant’s resignation after an event that would be grounds for a Termination for Cause will be treatedas a Termination for Cause hereunder.

 

(i)              “**Change in Control**” means:

 

(i)                the acquisition (whether by purchase, merger, consolidation, combination, or other similar transaction) by any Person ofbeneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% (on a fully diluted basis)of either (A) the then-outstanding Class A Ordinary Shares, taking into account as outstanding for this purpose such Class A OrdinaryShares issuable upon the exercise of options or warrants, the conversion of convertible shares or debt and the exercise of any similarright to acquire such Class A Ordinary Shares; or (B) the combined voting power of the then-outstanding voting securities of the Companyentitled to vote generally in the election of directors; *provided, however*, that for purposes of the Plan, the following acquisitionsshall not constitute a Change in Control: (I) any acquisition by any employee benefit plan sponsored or maintained by the Company or anyAffiliate; or (II) in respect of an Award held by a particular Participant, any acquisition by the Participant or any group of Personsincluding the Participant (or any entity controlled by the Participant or any group of Persons including the Participant);

 

(ii)              duringany period of 12 months, individuals who, at the beginning of such period, constitute the Board (the “**IncumbentDirectors**”) cease for any reason to constitute at least a majority of the Board; *provided*, that any Personbecoming a director subsequent to the Effective Date, whose election or nomination for election was approved by a vote of at leasttwo-thirds of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of theCompany in which such Person is named as a nominee for director, without written objection to such nomination) shall be an IncumbentDirector; *provided*, *however*, that no individual initially elected or nominated as a director of the Company as aresult of an actual or threatened election contest, as such terms are used in Rule 14a-12 of Regulation 14A promulgated under theExchange Act, with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by oron behalf of any Person other than the Board shall be deemed to be an Incumbent Director; or

 

 

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(iii)           the sale, transfer, or other disposition of all or substantially all of the assets of the Company Group (taken as a whole)to any Person that is not an Affiliate of the Company, other than (A) a sale, transfer or disposition of all or substantially all of theCompany Group’s assets to an entity, more than fifty percent (50%) of the combined voting power of the voting securities of whichare owned by shareholders of the Company following the completion of such transaction in substantially the same proportions as their ownershipof the Company immediately prior to such sale or (B) a sale, transfer or disposition of all or substantially all of the Company Group’sassets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority ofthe board of directors of the entity to which such assets are sold, transferred or disposed or, if such entity is a subsidiary, the ultimateparent thereof; or

 

(iv)             there is consummated a merger or consolidation of the Company or any direct or indirect Subsidiary with any other corporationor other entity, other than (I) a merger or consolidation (A) which results in the voting securities of the Company outstanding immediatelyprior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securitiesof the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securitiesunder an employee benefit plan of the Company or any Subsidiary, more than fifty percent (50%) of the combined voting power of the securitiesof the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation and (B) immediatelyfollowing which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directorsof the Company, the entity surviving such merger or consolidation or, if the Company or the entity surviving such merger or consolidationis then a subsidiary, the ultimate parent thereof, or (II) a merger or consolidation effected to implement a recapitalization of the Company(or similar transaction) in which no Person is or becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under theExchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Personany securities acquired directly from the Company or its Affiliates) representing fifty percent (50%) or more of the combined voting powerof the Company’s then outstanding securities.

 

(v)            Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred as a result of any transaction orseries of integrated transactions following which the Company or any of its Affiliates possesses, directly or indirectly, the power todirect or cause the direction of the management and policies of the Company (or any successor thereto), whether through the ownershipof voting securities, as trustee or executor, by contract or otherwise, including, without limitation, the ownership, directly or indirectly,of securities having the power to elect a majority of the Board or the board of directors or similar body governing the affairs of anysuccessor to the Company..

 

(j)                 “**Code**”means the Internal Revenue Code of 1986, as amended, and any successor thereto. Reference in the Plan to any section of the Codeshall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successorprovisions to such section, regulations, or guidance.

 

 

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(k)         “**Committee**” means the Compensation Committee of the Board or any properly delegated subcommitteethereof or, if no such Compensation Committee or subcommittee thereof exists, the Board.

 

(l)               “**Class A Ordinary Share**” means the class A ordinary shares of the Company, par value $0.0001 pershare.

 

(m)            “**Company**” means Ambipar Emergency Response, and any successor thereto.

 

(n)             “**Company Group**” means, collectively, the Company and its Subsidiaries.

 

(o)          “**Date of Grant**” means the date on which the granting of an Award is authorized, or such otherdate as may be specified in such authorization.

 

(p)            “**Designated Foreign Subsidiaries**” means all members of the Company Group that are organized underthe laws of any jurisdiction other than the United States of America that may be designated by the Board or the Committee from time totime.

 

(q)              “**Detrimental Activity**” means any of the following: (i) unauthorized disclosure or use of any confidentialor proprietary information of any member of the Company Group; (ii) any activity that would be grounds to terminate the Participant’semployment or service with the Service Recipient for Cause; (iii) a breach by the Participant of any restrictive covenant by which suchParticipant is bound, including, without limitation, any covenant not to compete or not to solicit, in any agreement with any member ofthe Company Group, or (iv) fraud or conduct contributing to any financial restatements or irregularities, in each case, as determinedby the Committee in its sole discretion.

 

(r)             “**Disability**” means, as to any Participant, unless the applicable Award Agreement states otherwise,(i) “Disability”, as defined in any employment, severance, consulting or other similar agreement between the Participant andthe Service Recipient in effect at the time of such Termination; or (ii) in the absence of any such employment, severance, consultingor other similar agreement (or the absence of any definition of “Disability” contained therein), a condition entitling theParticipant to receive benefits under a long-term disability plan of the Service Recipient or other member of the Company Group in whichsuch Participant is eligible to participate, or, in the absence of such a plan, the complete and permanent inability of the Participantby reason of illness or accident to perform the duties of the position at which the Participant was employed or served when such disabilitycommenced. Any determination of whether Disability exists in the absence of a long-term disability plan shall be made by the Company (orits designee) in its sole and absolute discretion.

 

(s)               “**Effective Date**” means March 3, 2023.

 

 

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(t)            “**Eligible Person**” means any: (i) individual employed by any member of the Company Group; *provided,however*, that no such employee covered by a collective bargaining agreement shall be an Eligible Person unless and to the extent thatsuch eligibility is set forth in such collective bargaining agreement or in an agreement or instrument relating thereto; (ii) directoror officer of any member of the Company Group; or (iii) consultant or advisor to any member of the Company Group who may be offered securitiesregistrable pursuant to a registration statement on Form S-8 under the Securities Act, who, in the case of each of clauses (i) through(iii) above, has entered into an Award Agreement or who has received written notification from the Committee or its designee that theyhave been selected to participate in the Plan.

 

(u)           “**Exchange Act**” means the Securities Exchange Act of 1934, as amended, and any successor thereto.Reference in the Plan to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations,or other interpretative guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations,or guidance.

 

(v)            “**Exercise Price**” has the meaning given to such term in Section 6(b) of the Plan.

 

(w)           “**Fair Market Value**” means, on a given date: (i) if the Class A Ordinary Shares are listed on anational securities exchange, the closing sales price of the Class A Ordinary Shares reported on the primary exchange on which the ClassA Ordinary Shares are listed and traded on such date, or, if there are no such sales on that date, then on the last preceding date onwhich such sales were reported; (ii) if the Class A Ordinary Shares are not listed on any national securities exchange but is quoted inan inter-dealer quotation system on a last-sale basis, the average between the closing bid price and ask price reported on such date,or, if there is no such sale on that date, then on the last preceding date on which a sale was reported; or (iii) if the Class A OrdinaryShares are not listed on a national securities exchange or quoted in an inter-dealer quotation system on a last-sale basis, the amountdetermined by the Committee in good faith to be the fair market value of the Class A Ordinary Shares.

 

(x)              “**GAAP**” has the meaning given to such term in Section 6(d) of the Plan.

 

(y)              “**Immediate Family Members**” has the meaning given to such term in Section 12(b) of the Plan.

 

(z)              “**Incentive Share Option**” means an Option which is designated by the Committee as an incentiveshare option as described in Section 422 of the Code and otherwise meets the requirements set forth in the Plan.

 

(aa)           “**Indemnifiable Person**” has the meaning given to such term in Section 4(e) of the Plan.

 

(bb)          “**Non-Employee Director**” means a member of the Board who is not an employee of any member of theCompany Group.

 

(cc)           “**Nonqualified Share Option**” means an Option which is not designated by the Committee as an IncentiveShare Option.

 

 

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(dd)           “**Option**” means an Award granted under Section 6 of the Plan.

 

(ee)           “**Option Period**” has the meaning given to such term in Section 6(c) of the Plan.

 

(ff)             “**Other Cash-Based Award**” means an Award that is granted under Section 9 of the Plan that is denominatedand/or payable in cash.

 

(gg)          “**Other Equity-Based Award**” means an Award that is not an Option, Share Appreciation Right, RestrictedShare, or Restricted Share Unit that is granted under Section 9 of the Plan and is (i) payable by delivery of Class A Ordinary Sharesand/or (ii) measured by reference to the value of a Common Share.

 

(hh)          “**Participant**” means an Eligible Person who has been selected by the Committee to participate inthe Plan and to receive an Award pursuant to the Plan.

 

(ii)             “**PerformanceConditions**” means specific levels of performance of the Company (and/or one or more members of the Company Group,divisions or operational and/or business units, product lines, brands, business segments, administrative departments, or anycombination of the foregoing), which may be determined in accordance with GAAP or on a non-GAAP basis on, without limitation, thefollowing measures: (i) net earnings, net income (before or after taxes), adjusted net income after capital charges or consolidatednet income; (ii) basic or diluted earnings per share (before or after taxes); (iii) net revenue or net revenue growth; (iv) grossrevenue or gross revenue growth, gross profit or gross profit growth; (v) operating income or net operating profit (before or aftertaxes); (vi) return measures (including, but not limited to, return on investment, assets, capital, employed capital, investedcapital, equity, or sales); (vii) cash flow measures (including, but not limited to, operating cash flow, free cash flow, or cashflow return on capital), which may be, but are not required to be, measured on a per share basis; (viii) actual or adjusted earningsbefore or after interest, taxes, depreciation, and/or amortization (including EBIT and EBITDA) or earnings before interest, taxes,depreciation, amortization and restructuring costs (EBITDAR); (ix) gross or net operating margins; (x) productivity ratios; (xi)share price (including, but not limited to, growth measures and total shareholder return); (xii) expense targets or cost reductiongoals, general and administrative expense savings; (xiii) operating efficiency; (xiv) objective measures of customer/clientsatisfaction; (xv) working capital targets; (xvi) measures of economic value added or other ‘value creation’ metrics;(xvii) enterprise value; (xviii) sales; (xix) shareholder return; (xx) customer/client retention; (xxi) competitive market metrics;(xxii) employee satisfaction, employment practices and employee benefits or employee retention; (xxiii) supervision of litigationand information technology; (xxiv) objective measures of personal targets, goals, or completion of projects (including, but notlimited to, succession and hiring projects, completion of specific acquisitions, dispositions, reorganizations, divestitures ofsubsidiaries and/or other affiliates or joint ventures, other monetization or liquidity events relating to subsidiaries, or othercorporate transactions or capital-raising transactions, expansions of specific business operations, and meeting divisional orproject budgets); (xxv) comparisons of continuing operations to other operations; (xxvi) market share; (xxvii) cost of capital, debtleverage, year-end cash position, book value, book value per share, tangible book value, tangible book value per share, cash bookvalue or cash book value per share; (xxviii) strategic objectives; or (xxix) any combination of the foregoing. Any one or more ofthe aforementioned performance criteria may be stated as a percentage of another performance criteria, or used on an absolute orrelative basis to measure the performance of one or more members of the Company Group as a whole or any divisions or operationaland/or business units, product lines, brands, business segments, or administrative departments of the Company and/or one or moremembers of the Company Group or any combination thereof, as the Committee may deem appropriate, or any of the above performancecriteria may be compared to the performance of a selected group of comparison companies, or a published or special index that theCommittee, in its sole discretion, deems appropriate, or as compared to various stock market indices.

 

 

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(jj)            “**Permitted Transferee**” has the meaning given to such term in Section 12(b) of the Plan.

 

(kk)          “**Person**” means any individual, entity, or group (within the meaning of Section 13(d)(3) or14(d)(2) of the Exchange Act).

 

(ll)           “**Plan**” means this Ambipar Emergency Response 2023 Omnibus Incentive Plan, as it may be amendedand/or restated from time to time.

 

(mm)     “**Qualifying Director**” means a Person who is, with respect to actions intended to obtain an exemptionfrom Section 16(b) of the Exchange Act pursuant to Rule 16b-3 under the Exchange Act, a “non-employee director” within themeaning of Rule 16b-3 under the Exchange Act.

 

(nn)          “**Restricted Period**” means the period of time determined by the Committee during which an Awardis subject to restrictions, including vesting conditions.

 

(oo)          “**Restricted Share**” means Class A Ordinary Shares, subject to certain specified restrictions (whichmay include, without limitation, a requirement that the Participant remain continuously employed or provide continuous services for aspecified period of time), granted under Section 8 of the Plan.

 

(pp)          “**Restricted Share Unit**” means an unfunded and unsecured promise to deliver Class A Ordinary Shares,cash, other securities, or other property, subject to certain restrictions (which may include, without limitation, a requirement thatthe Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 8of the Plan.

 

(qq)          “**SAR Period**” has the meaning given to such term in Section 7(c) of the Plan.

 

(rr)           “**Securities Act**” means the Securities Act of 1933, as amended, and any successor thereto. Referencein the Plan to any section of (or rule promulgated under) the Securities Act shall be deemed to include any rules, regulations, or otherinterpretative guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations, orguidance.

 

(ss)         “**Service Recipient**” means, with respect to a Participant holding a given Award, the member ofthe Company Group by which the original recipient of such Award is, or following a Termination was most recently, principally employedor to which such original recipient provides, or following a Termination was most recently providing, services, as applicable.

 

 

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(tt)            “**Share Appreciation Right**” or “**SAR**” means an Award granted under Section 7of the Plan.

 

(uu)          “**Strike Price**” has the meaning given to such term in Section 7(b) of the Plan.

 

(vv)        “**Sub-Plans**” means any sub-plan to the Plan that has been adopted by the Board or the Committeefor the purpose of permitting or facilitating the offering of Awards to employees of certain Designated Foreign Subsidiaries or otherwiseoutside the jurisdiction of the United States of America, with each such Sub-Plan designed to comply with Applicable Law in such foreignjurisdictions. Although any Sub-Plan may be designated a separate and independent plan from the Plan in order to comply with ApplicableLaw, the Absolute Share Limit and the other limits specified in Section 5(b) of the Plan shall apply in the aggregate to the Plan andany Sub-Plan adopted hereunder.

 

(ww)      “**Subsidiary**” means, with respect to any specified Person:

 

(i)                any corporation, association, or other business entity of which more than 50% of the total voting power of shares of suchentity’s voting securities (without regard to the occurrence of any contingency and after giving effect to any voting agreementor shareholders’ agreement that effectively transfers voting power) is at the time owned or controlled, directly or indirectly,by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and

 

(ii)             any partnership (or any comparable foreign entity) (A) the sole general partner (or functional equivalent thereof) or themanaging general partner of which is such Person or Subsidiary of such Person or (B) the only general partners (or functional equivalentsthereof) of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

 

(xx)          “**Substitute Awards**” has the meaning given to such term in Section 5(e) of the Plan.

 

(yy)          “**Termination**” means the termination of a Participant’s employment or service, as applicable,with the Service Recipient for any reason (including death or Disability).

 

3.            Effective Date; Duration. The Plan shall be effective as of the Effective Date. The expirationdate of the Plan, on and after which date no Awards may be granted hereunder, shall be the tenth anniversary of the Effective Date; *provided,however*, that such expiration shall not affect Awards then outstanding, and the terms and conditions of the Plan shall continue toapply to such Awards.

 

4.**            **Administration.

 

(a)               General.The Committee shall administer the Plan. To the extent required to comply with the provisions of Rule 16b-3 promulgated under theExchange Act (if the Board is not acting as the Committee under the Plan), it is intended that each member of the Committee shall,at the time such member takes any action with respect to an Award under the Plan that is intended to qualify for the exemptionsprovided by Rule 16b-3 promulgated under the Exchange Act, be a Qualifying Director. However, the fact that a Committee member shallfail to qualify as a Qualifying Director shall not invalidate any Award granted by the Committee that is otherwise validly grantedunder the Plan.

 

 

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(b)              Committee Authority. Subject to the provisions of the Plan and Applicable Law, the Committee shall have the soleand plenary authority, in addition to other express powers and authorizations conferred on the Committee by the Plan, to: (i) designateParticipants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of Class A OrdinaryShares to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards;(iv) determine the terms and conditions of any Award, including any Performance Conditions; (v) determine whether, to what extent, andunder what circumstances Awards may be settled in, or exercised for, cash, Class A Ordinary Shares, other securities, other Awards, orother property, or canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited,or suspended; (vi) determine whether, to what extent, and under what circumstances the delivery of cash, Class A Ordinary Shares,other securities, other Awards, or other property and other amounts payable with respect to an Award shall be deferred either automaticallyor at the election of the Participant or of the Committee; (vii) interpret, administer, reconcile any inconsistency in, correct any defectin, and/or supply any omission in the Plan and any instrument or agreement relating to, or Award granted under, the Plan; (viii) establish,amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper administrationof the Plan; (ix) adopt Sub-Plans; and (x) make any other determination and take any other action that the Committee deems necessary ordesirable for the administration of the Plan.

 

(c)              Delegation. Except to the extent prohibited by Applicable Law, the Committee may allocate all or any portion of itsresponsibilities and powers to any one or more of its members and may delegate all or any part of its responsibilities and powers to anyPerson or Persons selected by it. Any such allocation or delegation may be revoked by the Committee at any time. Without limiting thegenerality of the foregoing, the Committee may delegate to one or more officers of any member of the Company Group the authority to acton behalf of the Committee with respect to any matter, right, obligation, or election which is the responsibility of, or which is allocatedto, the Committee herein, and which may be so delegated in accordance with Applicable Law, except for grants of Awards to Non-EmployeeDirectors. Notwithstanding the foregoing in this Section 4(c), it is intended that any action under the Plan intended to qualify for anexemption provided by Rule 16b-3 promulgated under the Exchange Act related to Persons who are subject to Section 16 of the ExchangeAct will be taken only by the Board or by a committee or subcommittee of two or more Qualifying Directors. However, the fact that anymember of such committee or subcommittee shall fail to qualify as a Qualifying Director shall not invalidate any action that is otherwisevalid under the Plan.

 

(d)              Finality of Decisions. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations,and other decisions under or with respect to the Plan, any Award or any Award Agreement shall be within the sole discretion of the Committee,may be made at any time, and shall be final, conclusive, and binding upon all Persons, including, without limitation, any member of theCompany Group, any Participant, any holder or beneficiary of any Award, and any shareholder of the Company.

 

 

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(e)              Indemnification. No member of the Board, the Committee, or any employee or agent of any member of the Company Group(each such Person, an “**Indemnifiable Person**”) shall be liable for any action taken or omitted to be taken orany determination made with respect to the Plan or any Award hereunder (unless constituting fraud, dishonesty, or a willful criminal actor omission). Each Indemnifiable Person shall be indemnified and held harmless by the Company to the maximum extent permitted by ApplicableLaw against and from any loss, cost, liability, or expense (including attorneys’ fees) that may be imposed upon or incurred by suchIndemnifiable Person in connection with or resulting from any action, suit, or proceeding to which such Indemnifiable Person may be aparty or in which such Indemnifiable Person may be involved by reason of any action taken or omitted to be taken or determination madewith respect to the Plan or any Award hereunder and against and from any and all amounts paid by such Indemnifiable Person with the Company’sapproval, in settlement thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such action, suit, or proceedingagainst such Indemnifiable Person, and the Company shall advance to such Indemnifiable Person any such expenses promptly upon writtenrequest (which request shall include an undertaking by the Indemnifiable Person to repay the amount of such advance if it shall ultimatelybe determined, as provided below, that the Indemnifiable Person is not entitled to be indemnified); *provided*, that the Companyshall have the right, at its own expense, to assume and defend any such action, suit, or proceeding and once the Company gives noticeof its intent to assume the defense, the Company shall have sole control over such defense with counsel of the Company’s choice.The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or otherfinal adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts, omissions,or determinations of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Person’sfraud, dishonesty, or willful criminal act or omission or that such right of indemnification is otherwise prohibited by Applicable Lawor by the organizational documents of any member of the Company Group. The foregoing right of indemnification shall not be exclusive ofor otherwise supersede any other rights of indemnification to which such Indemnifiable Persons may be entitled under (i) the organizationaldocuments of any member of the Company Group, (ii) pursuant to Applicable Law, (iii) an individual indemnification agreement or contract,or otherwise, or (iv) any other power that the Company may have to indemnify such Indemnifiable Persons or hold such Indemnifiable Personsharmless.

 

(f)               Board Authority. Notwithstanding anything to the contrary contained in the Plan, the Board may, in its sole discretion,at any time and from time to time, grant Awards and administer the Plan with respect to such Awards. Any such actions by the Board shallbe subject to Applicable Law. In any such case, the Board shall have all the authority granted to the Committee under the Plan.

 

5.            Grantof Awards; Shares Subject to the Plan; Limitations. 

 

(a)              Grants. The Committee may, from time to time, grant Awards to one or more Eligible Persons. All Awards granted underthe Plan shall vest and become exercisable in such manner and on such date or dates or upon such event or events as determined by theCommittee, including, without limitation, attainment of Performance Conditions.

 

 

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(b)               ShareReserve and Limits. Awards granted under the Plan shall be subject to the following limitations: (i) subject to Section 10 ofthe Plan, no more than 1,108,597 Class A Ordinary Shares (the “**Absolute Share Limit**”) shall be availablefor Awards under the Plan; and (ii) subject to Section 10 of the Plan, no more than the number of Class A Ordinary Shares equalto the Absolute Share Limit may be issued in the aggregate pursuant to the exercise of Incentive Share Options granted under thePlan.

 

(c)              Share Counting. Other than with respect to Substitute Awards, to the extent that an Award expires or is canceled,forfeited, terminated, settled in cash, or otherwise is settled without issuance to the Participant of the full number of Class A OrdinaryShares to which the Award related, the unissued Class A Ordinary Shares will again be available for grant under the Plan. Class A OrdinaryShares withheld in payment of the Exercise Price, or taxes relating to an Award, and shares equal to the number of shares surrenderedin payment of any Exercise Price, or taxes relating to an Award, shall be deemed to constitute shares not issued to the Participant andshall be deemed to again be available for Awards under the Plan; *provided, however*, that such shares shall not become availablefor issuance hereunder if either: (i) the applicable shares are withheld or surrendered following the termination of the Plan; or (ii)at the time the applicable shares are withheld or surrendered, it would constitute a material revision of the Plan subject to shareholderapproval under any then-applicable rules of the national securities exchange on which the Class A Ordinary Shares are listed.

 

(d)              Source of Shares. Class A Ordinary Shares issued by the Company in settlement of Awards may be authorized and unissuedshares, Class A Ordinary Shares held in the treasury of the Company, Class A Ordinary Shares purchased on the open market or by privatepurchase, or a combination of the foregoing.

 

(e)              Substitute Awards. Awards may, in the sole discretion of the Committee, be granted under the Plan in assumption of,or in substitution for, outstanding Awards previously granted by an entity directly or indirectly acquired by the Company or with whichthe Company combines (“**Substitute Awards**”). Substitute Awards shall not be counted against the Absolute ShareLimit; *provided*, that Substitute Awards issued in connection with the assumption of, or in substitution for, outstanding Optionsintended to qualify as “incentive stock options” within the meaning of Section 422 of the Code shall be counted against theaggregate number of Class A Ordinary Shares available for Awards of Incentive Share Options under the Plan. Subject to applicable stockexchange requirements, available Class A Ordinary Shares under a shareholder-approved plan of an entity directly or indirectly acquiredby the Company or with which the Company combines (as appropriately adjusted to reflect the acquisition or combination transaction) maybe used for Awards under the Plan and shall not reduce the number of Class A Ordinary Shares available for issuance under the Plan.

  

 

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6.            Options.

 

(a)               General.Each Option granted under the Plan shall be evidenced by an Award Agreement, which agreement need not be the same for eachParticipant. Each Option so granted shall be subject to the conditions set forth in this Section 6, and to such other conditions notinconsistent with the Plan as may be reflected in the applicable Award Agreement. All Options granted under the Plan shall beNonqualified Share Options unless the applicable Award Agreement expressly states that the Option is intended to be an IncentiveShare Option. Incentive Share Options shall be granted only to Eligible Persons who are employees of a member of the Company Group,and no Incentive Share Option shall be granted to any Eligible Person who is ineligible to receive an Incentive Share Option underthe Code. No Option shall be treated as an Incentive Share Option unless the Plan has been approved by the shareholders of theCompany in a manner intended to comply with the shareholder approval requirements of Section 422(b)(1) of the Code; *provided*,that any Option intended to be an Incentive Share Option shall not fail to be effective solely on account of a failure to obtainsuch approval, but rather such Option shall be treated as a Nonqualified Share Option unless and until such approval is obtained. Inthe case of an Incentive Share Option, the terms and conditions of such grant shall be subject to, and comply with, such rules asmay be prescribed by Section 422 of the Code. If for any reason an Option intended to be an Incentive Share Option (or any portionthereof) shall not qualify as an Incentive Share Option, then, to the extent of such nonqualification, such Option or portionthereof shall be regarded as a Nonqualified Share Option appropriately granted under the Plan.

 

(b)              Exercise Price. Except as otherwise provided by the Committee in the case of Substitute Awards, the exercise price(“**Exercise Price**”) per Common Share for each Option shall not be less than 100% of the Fair Market Value ofsuch share (determined as of the Date of Grant); *provided, however*, that in the case of an Incentive Share Option granted to anemployee who, at the time of the grant of such Option, owns shares representing more than 10% of the voting power of all classes of sharesof any member of the Company Group, the Exercise Price per share shall be no less than 110% of the Fair Market Value per share on theDate of Grant.

 

(c)              Vesting and Expiration; Termination.

 

(i)                Options shall vest and become exercisable in such manner and on such date or dates or upon such event or events as determinedby the Committee including, without limitation, those set forth in Section 5(a) of the Plan; *provided*, *however*, that notwithstandingany such vesting dates or events, the Committee may in its sole discretion accelerate the vesting of any Options at any time and for anyreason. Options shall expire upon a date determined by the Committee, not to exceed ten years from the Date of Grant (the “**OptionPeriod**”); *provided*, that if the Option Period (other than in the case of an Incentive Share Option) would expireat a time when trading in the Class A Ordinary Shares is prohibited by the Company’s insider trading policy (or Company-imposed “blackout period”), then the Option Period shall be automatically extended until the 30th day following the expirationof such prohibition. Notwithstanding the foregoing, in no event shall the Option Period exceed five years from the Date of Grant in thecase of an Incentive Share Option granted to a Participant who on the Date of Grant owns shares representing more than 10% of the votingpower of all classes of shares of any member of the Company Group.

 

(ii)              Unlessotherwise determined by the Committee, whether in an Award Agreement or otherwise, in the event of: (A) a Participant’sTermination by the Service Recipient for Cause, all outstanding Options granted to such Participant shall immediately terminate andexpire; (B) a Participant’s Termination due to death or Disability, each outstanding unvested Option granted to suchParticipant shall immediately terminate and expire, and each outstanding vested Option shall remain exercisable for one yearthereafter (but in no event beyond the expiration of the Option Period); and (C) a Participant’s Termination for any otherreason, each outstanding unvested Option granted to such Participant shall immediately terminate and expire, and each outstandingvested Option shall remain exercisable for 90 days thereafter (but in no event beyond the expiration of the Option Period).

 

 

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(d)              Method of Exercise and Form of Payment. No Class A Ordinary Shares shall be issued pursuant to any exercise of anOption until payment in full of the Exercise Price therefor is received by the Company and the Participant has paid to the Company anamount equal to any Federal, state, local, and non-U.S. income, employment, and any other applicable taxes that are statutorily requiredto be withheld in accordance with Section 12(d) of the Plan. Options which have become exercisable may be exercised by delivery of writtenor electronic notice of exercise to the Company (or telephonic instructions to the extent provided by the Committee) in accordance withthe terms of the Option accompanied by payment of the Exercise Price. The Exercise Price shall be payable: (i) in cash, check, cash equivalent,and/or Class A Ordinary Shares valued at the Fair Market Value at the time the Option is exercised (including, pursuant to proceduresapproved by the Committee, by means of attestation of ownership of a sufficient number of Class A Ordinary Shares in lieu of actual issuanceof such shares to the Company); *provided*, that such Class A Ordinary Shares are not subject to any pledge or other security interestand have been held by the Participant for at least six months (or such other period as established from time to time by the Committeein order to avoid adverse accounting treatment applying generally accepted accounting principles (“**GAAP**”));or (ii) by such other method as the Committee may permit in its sole discretion, including, without limitation (A) in other property havinga fair market value on the date of exercise equal to the Exercise Price; (B) if there is a public market for the Class A Ordinary Sharesat such time, by means of a broker-assisted “cashless exercise” pursuant to which the Company is delivered (including telephonicallyto the extent permitted by the Committee) a copy of irrevocable instructions to a stockbroker to sell the Class A Ordinary Shares otherwiseissuable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price; or (C) a “netexercise” procedure effected by withholding the minimum number of Class A Ordinary Shares otherwise issuable in respect of an Optionthat are needed to pay the Exercise Price and any Federal, state, local, and non-U.S. income, employment, and any other applicable taxesthat are statutorily required to be withheld in accordance with Section 12(d) of the Plan. Any fractional Class A Ordinary Shares shallbe settled in cash.

 

(e)              Notification upon Disqualifying Disposition of an Incentive Share Option. Each Participant awarded an Incentive ShareOption under the Plan shall notify the Company in writing immediately after the date the Participant makes a disqualifying dispositionof any Class A Ordinary Shares acquired pursuant to the exercise of such Incentive Share Option. A disqualifying disposition is any disposition(including, without limitation, any sale) of such Class A Ordinary Shares before the later of (i) the date that is two years after theDate of Grant of the Incentive Share Option, or (ii) the date that is one year after the date of exercise of the Incentive Share Option.

 

(f)               Compliance With Applicable Laws, etc. Notwithstanding the foregoing, in no event shall a Participant be permittedto exercise an Option in a manner which the Committee determines would violate the Sarbanes-Oxley Act of 2002, as it may be amended fromtime to time, or any other Applicable Law.

 

 

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7.            Share Appreciation Rights.

 

(a)              General. Each SAR granted under the Plan shall be evidenced by an Award Agreement. Each SAR so granted shall be subjectto the conditions set forth in this Section 7, and to such other conditions not inconsistent with the Plan as may be reflected in theapplicable Award Agreement. Any Option granted under the Plan may include tandem SARs. The Committee also may award SARs to Eligible Personsindependent of any Option.

 

(b)              Strike Price. Except as otherwise provided by the Committee in the case of Substitute Awards, the strike price (“**StrikePrice**”) per Common Share for each SAR shall not be less than 100% of the Fair Market Value of such share (determined asof the Date of Grant). Notwithstanding the foregoing, a SAR granted in tandem with (or in substitution for) an Option previously grantedshall have a Strike Price equal to the Exercise Price of the corresponding Option.

 

(c)              Vesting and Expiration; Termination.

 

(i)                A SAR granted in connection with an Option shall become exercisable and shall expire according to the same vesting scheduleand expiration provisions as the corresponding Option. A SAR granted independent of an Option shall vest and become exercisable in suchmanner and on such date or dates or upon such event or events as determined by the Committee including, without limitation, those setforth in Section 5(a) of the Plan; *provided*, *however*, that notwithstanding any such vesting dates or events, the Committeemay, in its sole discretion, accelerate the vesting of any SAR at any time and for any reason. SARs shall expire upon a date determinedby the Committee, not to exceed ten years from the Date of Grant (the “**SAR Period**”); *provided*, that ifthe SAR Period would expire at a time when trading in the Class A Ordinary Shares is prohibited by the Company’s insider tradingpolicy (or Company-imposed “blackout period”), then the SAR Period shall be automatically extended until the 30thday following the expiration of such prohibition.

 

(ii)             Unless otherwise determined by the Committee, whether in an Award Agreement or otherwise, in the event of: (A) a Participant’sTermination by the Service Recipient for Cause, all outstanding SARs granted to such Participant shall immediately terminate and expire;(B) a Participant’s Termination due to death or Disability, each outstanding unvested SAR granted to such Participant shall immediatelyterminate and expire, and each outstanding vested SAR shall remain exercisable for one year thereafter (but in no event beyond the expirationof the SAR Period); and (C) a Participant’s Termination for any other reason, each outstanding unvested SAR granted to such Participantshall immediately terminate and expire, and each outstanding vested SAR shall remain exercisable for 90 days thereafter (but in no eventbeyond the expiration of the SAR Period).

 

 

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(d)              Method of Exercise. SARs which have become exercisable may be exercised by delivery of written or electronic noticeof exercise to the Company in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on whichsuch SARs were awarded.

 

(e)              Payment. Upon the exercise of a SAR, the Company shall pay to the Participant an amount equal to the number of sharessubject to the SAR that is being exercised multiplied by the excess of the Fair Market Value of one Common Share on the exercise dateover the Strike Price, less an amount equal to any Federal, state, local, and non-U.S. income, employment, and any other applicable taxesthat are statutorily required to be withheld in accordance with Section 12(d) of the Plan. The Company shall pay such amount in cash,in Class A Ordinary Shares valued at Fair Market Value, or any combination thereof, as determined by the Committee. Any fractional ClassA Ordinary Shares shall be settled in cash.

 

8.            Restricted Share and Restricted Share Units.

 

(a)              General. Each grant of Restricted Share and Restricted Share Units shall be evidenced by an Award Agreement. EachRestricted Share and Restricted Share Unit so granted shall be subject to the conditions set forth in this Section 8, and to such otherconditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement.

 

(b)              Share Certificates and Book-Entry Notation; Escrow or Similar Arrangement. Upon the grant of Restricted Share, theCommittee shall, at its discretion, cause a share certificate registered in the name of the Participant to be issued or shall cause CommonShare(s) to be registered in the name of the Participant and held in book-entry form subject to the Company’s directions and, ifthe Committee determines that the Restricted Share shall be held by the Company or in escrow rather than issued to the Participant pendingthe release of the applicable restrictions, the Committee may require the Participant to additionally execute and deliver to the Company(i) an escrow agreement satisfactory to the Committee, if applicable, and (ii) the appropriate share power (endorsed in blank) withrespect to the Restricted Share covered by such agreement. If a Participant shall fail to execute and deliver (in a manner permitted underSection 12(a) of the Plan or as otherwise determined by the Committee) an agreement evidencing an Award of Restricted Share and, if applicable,an escrow agreement and blank share power within the amount of time specified by the Committee, the Award shall be null and void. Subjectto the restrictions set forth in this Section 8, Section 12(b) of the Plan, and the applicable Award Agreement, a Participant generallyshall have the rights and privileges of a shareholder as to Restricted Shares, including, without limitation, the right to vote such RestrictedShares. To the extent Restricted Shares are forfeited, any share certificates issued to the Participant evidencing such shares shall bereturned to the Company without undue delay, and all rights of the Participant to such shares and as a shareholder with respect theretoshall terminate automatically without further obligation on the part of the Company. A Participant shall have no rights or privilegesas a shareholder as to Restricted Share Units.

 

 

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(c)              Vesting; Termination.

 

(i)                 RestrictedShare and Restricted Share Units shall vest, and any applicable Restricted Period shall lapse, in such manner and on such date ordates or upon such event or events as determined by the Committee including, without limitation, those set forth in Section 5(a) ofthe Plan; *provided*, *however*, that notwithstanding any such dates or events, the Committee may, in its sole discretion,accelerate the vesting of any Restricted Share or Restricted Share Unit or the lapsing of any applicable Restricted Period at anytime and for any reason.

 

(ii)             Unless otherwise determined by the Committee, whether in an Award Agreement or otherwise, in the event of a Participant’sTermination for any reason prior to the time that such Participant’s Restricted Shares or Restricted Share Units, as applicable,have vested, (A) all vesting with respect to such Participant’s Restricted Shares or Restricted Share Units, as applicable, shallcease and (B) unvested shares of Restricted Share and unvested Restricted Share Units, as applicable, shall be forfeited to the Companyby the Participant for no consideration as of the date of such Termination.

 

(d)              Issuance of Restricted Share and Settlement of Restricted Share Units.

 

(i)                Upon the expiration of the Restricted Period with respect to any Restricted Shares, the restrictions set forth in the applicableAward Agreement shall be of no further force or effect with respect to such shares, except as set forth in the applicable Award Agreement.If an escrow arrangement is used, upon such expiration the Company shall issue to the Participant or the Participant’s beneficiary,without charge, the share certificate (or, if applicable, a notice evidencing a book-entry notation) evidencing the Restricted Shareswhich have not then been forfeited and with respect to which the Restricted Period has expired (rounded down to the nearest full share).

 

(ii)             Unless otherwise determined by the Committee in an Award Agreement or otherwise, upon the expiration of the Restricted Periodwith respect to any outstanding Restricted Share Units, the Company shall issue to the Participant or the Participant’s beneficiary,without charge, one Common Share (or other securities or other property, as applicable) for each such outstanding Restricted Share Unit;*provided, however*, that the Committee may, in its sole discretion, elect to (A) pay cash or part cash and part Class A OrdinaryShares in lieu of issuing only Class A Ordinary Shares in respect of such Restricted Share Units or (B) defer the issuance of Class AOrdinary Shares (or cash or part cash and part Class A Ordinary Shares, as the case may be) beyond the expiration of the Restricted Periodif such extension would not cause adverse tax consequences under Section 409A of the Code. If a cash payment is made in lieu of issuingClass A Ordinary Shares in respect of such Restricted Share Units, the amount of such payment shall be equal to the Fair Market Valueper Common Share as of the date on which the Restricted Period lapsed with respect to such Restricted Share Units.

 

(e)              Legends on Restricted Share. Each certificate, if any, or book entry representing Restricted Shares awarded underthe Plan, if any, shall bear a legend or book-entry notation substantially in the form of the following, in addition to any other informationthe Company deems appropriate, until the lapse of all restrictions with respect to such Class A Ordinary Shares:

 

TRANSFEROF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY IS RESTRICTED PURSUANT TO THE TERMS OF THE Ambipar EMERGENCY RESPONSE 2023 OMNIBUS INCENTIVE PLAN AND A RESTRICTED SHARE AWARD AGREEMENT BETWEEN AMBIPAR EMERGENCY RESPONSE AND THE PARTICIPANT.A COPY OF SUCH PLAN AND AWARD AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF AMBIPAR EMERGENCY RESPONSE.

 

 

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9.            OtherEquity-Based Awards and Other Cash-Based Awards. The Committee may grant Other Equity-Based Awardsand Other Cash-Based Awards under the Plan to Eligible Persons, alone or in tandem with other Awards, in such amounts and dependent onsuch conditions as the Committee shall from time to time in its sole discretion determine including, without limitation, those set forthin Section 5(a) of the Plan. Each Other Equity-Based Award granted under the Plan shall be evidenced by an Award Agreement and each OtherCash-Based Award granted under the Plan shall be evidenced in such form as the Committee may determine from time to time. Each OtherEquity-Based Award or Other Cash-Based Award, as applicable, so granted shall be subject to such conditions not inconsistent with thePlan as may be reflected in the applicable Award Agreement or other form evidencing such Award, including, without limitation, thoseset forth in Section 12(c) of the Plan.

 

10.          Changesin Capital Structure and Similar Events. Notwithstanding any other provision in this Plan to the contrary,the following provisions shall apply to all Awards granted hereunder (other than Other Cash-Based Awards):

 

(a)               General.In the event of (i) any dividend (other than regular cash dividends) or other distribution (whether in the form of cash, Class AOrdinary Shares, other securities, or other property), recapitalization, share split, reverse share split, reorganization, merger,consolidation, split-up, split-off, spin-off, combination, repurchase, or exchange of Class A Ordinary Shares or other securities ofthe Company, issuance of warrants or other rights to acquire Class A Ordinary Shares or other securities of the Company, or othersimilar corporate transaction or event that affects the Class A Ordinary Shares (including a Change in Control), or (ii) unusual ornonrecurring events affecting the Company, including changes in applicable rules, rulings, regulations, or other requirements, thatthe Committee determines, in its sole discretion, could result in substantial dilution or enlargement of the rights intended to begranted to, or available for, Participants (any event in (i) or (ii), an “**Adjustment Event**”), theCommittee shall, in respect of any such Adjustment Event, make such proportionate substitution or adjustment, if any, as it, in itssole discretion, deems equitable, to any or all of: (A) the Absolute Share Limit, or any other limit applicable under the Plan withrespect to the number of Awards which may be granted hereunder; (B) the number of Class A Ordinary Shares or other securities of theCompany (or number and kind of other securities or other property) which may be issued in respect of Awards or with respect to whichAwards may be granted under the Plan or any Sub-Plan; and (C) the terms of any outstanding Award, including, without limitation,(I) the number of Class A Ordinary Shares or other securities of the Company (or number and kind of other securities or otherproperty) subject to outstanding Awards or to which outstanding Awards relate; (II) the Exercise Price or Strike Price with respectto any Award; or (III) any applicable performance measures; *provided*, that in the case of any “equityrestructuring” (within the meaning of the Financial Accounting Standards Board Accounting Standards Codification Topic 718 (orany successor pronouncement thereto)), the Committee shall make an equitable or proportionate adjustment to outstanding Awards toreflect such equity restructuring. Any adjustment under this Section 10 shall be conclusive and binding for all purposes.

 

 

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(b)              Adjustment Events. Without limiting the foregoing, except as may otherwise be provided in an Award Agreement, inconnection with any Adjustment Event, the Committee may, in its sole discretion, provide for any one or more of the following:

 

(i)                substitution or assumption of Awards (or awards of an acquiring company), acceleration of the exercisability of, lapse ofrestrictions on, or termination of Awards, or a period of time (which shall not be required to be more than ten days) for Participantsto exercise outstanding Awards prior to the occurrence of such event (and any such Award not so exercised shall terminate upon the occurrenceof such event); and

 

(ii)             subject to any limitations or reductions as may be necessary to comply with Section 409A of the Code, cancellation of anyone or more outstanding Awards and payment to the holders of such Awards that are vested as of such cancellation (including, without limitation,any Awards that would vest as a result of the occurrence of such event but for such cancellation or for which vesting is accelerated bythe Committee in connection with such event) the value of such Awards, if any, as determined by the Committee (which value, if applicable,may be based upon the price per Common Share received or to be received by other shareholders of the Company in such event), including,without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the FairMarket Value (as of a date specified by the Committee) of the Class A Ordinary Shares subject to such Option or SAR over the aggregateExercise Price or Strike Price of such Option or SAR (it being understood that, in such event, any Option or SAR having a per share ExercisePrice or Strike Price equal to, or in excess of, the Fair Market Value of a Common Share subject thereto may be canceled and terminatedwithout any payment or consideration therefor), or, in the case of Restricted Shares, Restricted Share Units, or Other Equity-BasedAwards that are not vested as of such cancellation, a cash payment or equity subject to deferred vesting and delivery consistent withthe vesting restrictions applicable to such Restricted Shares, Restricted Share Units, or Other Equity-Based Awards prior to cancellation,or the underlying shares in respect thereof.

 

Paymentsto holders pursuant to clause (ii) above shall be made in cash or, in the sole discretion of the Committee, in the form of such otherconsideration necessary for a Participant to receive property, cash, or securities (or combination thereof) as such Participant wouldhave been entitled to receive upon the occurrence of the transaction if the Participant had been, immediately prior to such transaction,the holder of the number of Class A Ordinary Shares covered by the Award at such time (less any applicable Exercise Price or Strike Price).

 

(c)               OtherRequirements. Prior to any payment or adjustment contemplated under this Section 10, the Committee may require a Participant to(i) represent and warrant as to the unencumbered title to the Participant’s Awards; (ii) bear such Participant’s prorata share of any post-closing indemnity obligations, and be subject to the same post-closing purchase price adjustments, escrowterms, offset rights, holdback terms, and similar conditions as the other holders of Class A Ordinary Shares, subject to anylimitations or reductions as may be necessary to comply with Section 409A of the Code; and (iii) deliver customary transferdocumentation as reasonably determined by the Committee.

 

 

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(d)              Fractional Shares. Any adjustment provided under this Section 10 may provide for the elimination of any fractionalshare that might otherwise become subject to an Award.

 

(e)              Binding Effect. Any adjustment, substitution, determination of value or other action taken by the Committee underthis Section 10 shall be conclusive and binding for all purposes.

 

11.             Amendments and Termination.

 

(a)              Amendment and Termination of the Plan. The Board may amend, alter, suspend, discontinue, or terminate the Plan orany portion thereof at any time; *provided*, that no such amendment, alteration, suspension, discontinuance, or termination shallbe made without shareholder approval if: (i) such approval is required under Applicable Law; (ii) it would materially increase the numberof securities which may be issued under the Plan (except for increases pursuant to Section 5 or 10 of the Plan), or (iii) it would materiallymodify the requirements for participation in the Plan; *provided, further*, that any such amendment, alteration, suspension, discontinuance,or termination that would materially and adversely affect the rights of any Participant or any holder or beneficiary of any Award theretoforegranted shall not to that extent be effective without the consent of the affected Participant, holder, or beneficiary. Notwithstandingthe foregoing, no amendment shall be made to the last proviso of Section 11(b) of the Plan without shareholder approval.

 

(b)              Amendment of Award Agreements. The Committee may, to the extent consistent with the terms of the Plan and any applicableAward Agreement, in its sole discretion, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel,or terminate, any Award theretofore granted or the associated Award Agreement, prospectively or retroactively (including after a Participant’sTermination); *provided*, that, other than pursuant to Section 10, any such waiver, amendment, alteration, suspension, discontinuance,cancellation, or termination that would materially and adversely affect the rights of any Participant with respect to any Award theretoforegranted shall not to that extent be effective without the consent of the affected Participant; *provided, further*, that withoutshareholder approval, except as otherwise permitted under Section 10 of the Plan, (i) no amendment or modification may reduce the ExercisePrice of any Option or the Strike Price of any SAR; (ii) the Committee may not cancel any outstanding Option or SAR and replace it witha new Option or SAR (with a lower Exercise Price or Strike Price, as the case may be) or other Award or cash payment that is greater thanthe intrinsic value (if any) of the canceled Option or SAR; and (iii) the Committee may not take any other action which is considereda “repricing” for purposes of the shareholder approval rules of any securities exchange or inter-dealer quotation system onwhich the securities of the Company are listed or quoted.

 

12.             General. 

 

(a)               AwardAgreements. Each Award (other than an Other Cash-Based Award) under the Plan shall be evidenced by an Award Agreement, whichshall be delivered to the Participant to whom such Award was granted and shall specify the terms and conditions of the Award and anyrules applicable thereto, including, without limitation, any Performance Conditions, the effect on such Award of the death,Disability, or Termination of a Participant, or of such other events as may be determined by the Committee. For purposes of thePlan, an Award Agreement may be in any such form (written or electronic) as determined by the Committee (including, withoutlimitation, a Board or Committee resolution, an employment agreement, a notice, a certificate, or a letter) evidencing the Award.The Committee need not require an Award Agreement to be signed by the Participant or a duly authorized representative of theCompany.

 

 

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(b)              Nontransferability.

 

(i)                Each Award shall be exercisable only by such Participant to whom such Award was granted during the Participant’s lifetime,or, if permissible under Applicable Law, by the Participant’s legal guardian or representative. No Award may be assigned, alienated,pledged, attached, sold, or otherwise transferred or encumbered by a Participant (unless such transfer is specifically required pursuantto a domestic relations order or by Applicable Law) other than by will or by the laws of descent and distribution and any such purportedassignment, alienation, pledge, attachment, sale, transfer, or encumbrance shall be void and unenforceable against any member of the CompanyGroup; *provided*, that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale,transfer, or encumbrance.

 

(ii)             Notwithstanding the foregoing, the Committee may, in its sole discretion, permit Awards (other than Incentive Share Options)to be transferred by a Participant, without consideration, subject to such rules as the Committee may adopt consistent with any applicableAward Agreement to preserve the purposes of the Plan, to: (A) any Person who is a “family member” of the Participant, as suchterm is used in the instructions to Form S-8 under the Securities Act or any successor form of registration statement promulgated by theSecurities and Exchange Commission (collectively, the “**Immediate Family Members**”); (B) a trust solely for thebenefit of the Participant and the Participant’s Immediate Family Members; (C) a partnership or limited liability company whoseonly partners or shareholders are the Participant and the Participant’s Immediate Family Members; or (D) a beneficiary to whom donationsare eligible to be treated as “charitable contributions” for federal income tax purposes (each transferee described in clauses(A), (B), (C), and (D) above is hereinafter referred to as a “**Permitted Transferee**”); *provided*, thatthe Participant gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committeenotifies the Participant in writing that such a transfer would comply with the requirements of the Plan.

 

(iii)            Theterms of any Award transferred in accordance with clause (ii) above shall apply to the Permitted Transferee and any reference in thePlan or in any applicable Award Agreement to a Participant shall be deemed to refer to the Permitted Transferee, except that: (A)Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution; (B)Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in effect a registrationstatement on an appropriate form covering the Class A Ordinary Shares to be acquired pursuant to the exercise of such Option if theCommittee determines, consistent with any applicable Award Agreement, that such a registration statement is necessary orappropriate; (C) neither the Committee nor the Company shall be required to provide any notice to a Permitted Transferee, whether ornot such notice is or would otherwise have been required to be given to the Participant under the Plan or otherwise; and (D) theconsequences of a Participant’s Termination under the terms of the Plan and the applicable Award Agreement shall continue tobe applied with respect to the Participant, including, without limitation, that an Option shall be exercisable by the PermittedTransferee only to the extent, and for the periods, specified in the Plan and the applicable Award Agreement.

 

 

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(c)              Dividends and Dividend Equivalents.

 

(i)                The Committee may, in its sole discretion, provide a Participant as part of an Award with dividends, dividend equivalents,or similar payments in respect of Awards, payable in cash, Class A Ordinary Shares, other securities, other Awards or other property,on a current or deferred basis, on such terms and conditions as may be determined by the Committee in its sole discretion, including,without limitation, payment directly to the Participant, withholding of such amounts by the Company subject to vesting of the Award orreinvestment in additional Class A Ordinary Shares, Restricted Shares or other Awards.

 

(ii)             Without limiting the foregoing, unless otherwise provided in the Award Agreement, any dividend otherwise payable in respectof any Restricted Shares that remains subject to vesting conditions at the time of payment of such dividend shall be retained by the Company,remain subject to the same vesting conditions as the Restricted Shares to which the dividend relates and shall be delivered (without interest)to the Participant within 15 days following the date on which such restrictions on such Restricted Shares lapse (and the right to anysuch accumulated dividends shall be forfeited upon the forfeiture of the Restricted Shares to which such dividends relate).

 

(iii)           To the extent provided in an Award Agreement, the holder of outstanding Restricted Share Units shall be entitled to be creditedwith dividend equivalent payments (upon the payment by the Company of dividends on Class A Ordinary Shares) either in cash or, in thesole discretion of the Committee, in Class A Ordinary Shares having a Fair Market Value equal to the amount of such dividends (and interestmay, in the sole discretion of the Committee, be credited on the amount of cash dividend equivalents at a rate and subject to such termsas determined by the Committee), which accumulated dividend equivalents (and interest thereon, if applicable) shall be payable at thesame time as the underlying Restricted Share Units are settled following the date on which the Restricted Period lapses with respect tosuch Restricted Share Units, and if such Restricted Share Units are forfeited, the Participant shall have no right to such dividend equivalentpayments (or interest thereon, if applicable).

 

(d)              Tax Withholding.

 

(i)                A Participant shall be required to pay to the Company or one or more of its Subsidiaries, as applicable, an amount in cash(by check or wire transfer) equal to the aggregate amount of any income, employment, and/or other applicable taxes that are statutorilyrequired to be withheld in respect of an Award. Alternatively, the Company or any of its Subsidiaries may elect, in its sole discretion,to satisfy this requirement by withholding such amount from any cash compensation or other cash amounts owing to a Participant.

 

 

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(ii)             Without limiting the foregoing, the Committee may (but is not obligated to), in its sole discretion, permit or require aParticipant to satisfy all or any portion of the minimum income, employment, and/or other applicable taxes that are statutorily requiredto be withheld with respect to an Award by: (A) the delivery of Class A Ordinary Shares (which are not subject to any pledge or othersecurity interest) that have been both held by the Participant and vested for at least six months (or such other period as establishedfrom time to time by the Committee in order to avoid adverse accounting treatment under applicable accounting standards) having an aggregateFair Market Value equal to such minimum statutorily required withholding liability (or portion thereof); or (B) having the Company withholdfrom the Class A Ordinary Shares otherwise issuable or deliverable to, or that would otherwise be retained by, the Participant upon thegrant, exercise, vesting, or settlement of the Award, as applicable, a number of Class A Ordinary Shares with an aggregate Fair MarketValue equal to an amount, subject to clause (iii) below, not in excess of such minimum statutorily required withholding liability (orportion thereof).

 

(iii)       TheCommittee, subject to its having considered the applicable accounting impact of any such determination, has full discretion to allow Participantsto satisfy, in whole or in part, any additional income, employment, and/or other applicable taxes payable by them with respect to an Awardby electing to have the Company withhold from the Class A Ordinary Shares otherwise issuable or deliverable to, or that would otherwisebe retained by, a Participant upon the grant, exercise, vesting, or settlement of the Award, as applicable, Class A Ordinary Shares havingan aggregate Fair Market Value that is greater than the applicable minimum required statutory withholding liability (but such withholdingmay in no event be in excess of the maximum statutory withholding amount(s) in a Participant’s relevant tax jurisdictions).

 

(e)               NoClaim to Awards; No Rights to Continued Employment; Waiver. No employee of any member of the Company Group, or other Person,shall have any claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to beselected for a grant of any other Award. There is no obligation for uniformity of treatment of Participants or holders orbeneficiaries of Awards. The terms and conditions of Awards and the Committee’s determinations and interpretations withrespect thereto need not be the same with respect to each Participant and may be made selectively among Participants, whether or notsuch Participants are similarly situated. Neither the Plan nor any action taken hereunder shall be construed as giving anyParticipant any right to be retained in the employ or service of the Service Recipient or any other member of the Company Group, norshall it be construed as giving any Participant any rights to continued service on the Board. The Service Recipient or any othermember of the Company Group may at any time dismiss a Participant from employment or discontinue any consulting relationship, freefrom any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or any Award Agreement. By acceptingan Award under the Plan, a Participant shall thereby be deemed to have waived any claim to continued exercise or vesting of an Awardor to damages or severance entitlement related to non-continuation of the Award beyond the period provided under the Plan or anyAward Agreement, except to the extent of any provision to the contrary in any written employment contract or other agreement betweenthe Service Recipient and/or any member of the Company Group and the Participant, whether any such agreement is executed before, on,or after the Date of Grant.

 

 

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(f)               International Participants. With respect to Participants who reside or work outside of the United States of America,the Committee may, in its sole discretion, amend the terms of the Plan and create or amend Sub-Plans or amend outstanding Awards withrespect to such Participants in order to permit or facilitate participation in the Plan by such Participants, conform such terms withthe requirements of Applicable Law or to obtain more favorable tax or other treatment for a Participant or any member of the Company Group.

 

(g)              Designation and Change of Beneficiary. Each Participant may file with the Committee a written designation of oneor more Persons as the beneficiary or beneficiaries, as applicable, who shall be entitled to receive the amounts payable with respectto an Award, if any, due under the Plan upon the Participant’s death. A Participant may, from time to time, revoke or change theParticipant’s beneficiary designation without the consent of any prior beneficiary by filing a new designation with the Committee.The last such designation received by the Committee shall be controlling; *provided, however*, that no designation, or change orrevocation thereof, shall be effective unless received by the Committee prior to the Participant’s death, and in no event shallit be effective as of a date prior to such receipt. If no beneficiary designation is filed by a Participant, the beneficiary shall bedeemed to be the Participant’s spouse or, if the Participant is unmarried at the time of death, the Participant’s estate.

 

(h)              Termination. Except as otherwise provided in an Award Agreement, unless determined otherwise by the Committee atany point following such event: (i) neither a temporary absence from employment or service due to illness, vacation, or leave of absence(including, without limitation, a call to active duty for military service through a Reserve or National Guard unit) nor a transfer fromemployment or service with one Service Recipient to employment or service with another Service Recipient (or vice-versa) shall be considereda Termination; and (ii) if a Participant undergoes a Termination, but such Participant continues to provide services to the Company Groupin a non-employee capacity, including as a consultant, such change in status shall not be considered a Termination for purposes of thePlan. Further, unless otherwise determined by the Committee, in the event that any Service Recipient ceases to be a member of the CompanyGroup (by reason of sale, divestiture, spin-off, or other similar transaction), unless a Participant’s employment or service istransferred to another entity that would constitute a Service Recipient immediately following such transaction, such Participant shallbe deemed to have suffered a Termination hereunder as of the date of the consummation of such transaction.

 

(i)                No Rights as a Shareholder. Except as otherwise specifically provided in the Plan or any Award Agreement, no Personshall be entitled to the privileges of ownership in respect of Class A Ordinary Shares which are subject to Awards hereunder until suchshares have been issued or delivered to such Person.

 

 

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(j)                Government and Other Regulations.

 

(i)                 Theobligation of the Company to settle Awards in Class A Ordinary Shares or other consideration shall be subject to compliance withApplicable Law. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation tooffer to sell or to sell, and shall be prohibited from offering to sell or selling, any Class A Ordinary Shares pursuant to an Awardunless such shares have been properly registered for sale pursuant to the Securities Act with the Securities and Exchange Commissionor unless the Company has received an opinion of counsel (if the Company has requested such an opinion), satisfactory to theCompany, that such shares may be offered or sold without such registration pursuant to an available exemption therefrom and theterms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for saleunder the Securities Act any of the Class A Ordinary Shares to be offered or sold under the Plan. The Committee shall have theauthority to provide that all Class A Ordinary Shares or other securities of any member of the Company Group issued under the Planshall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the Plan, theapplicable Award Agreement and Applicable Law, and, without limiting the generality of Section 8 of the Plan, the Committee maycause a legend or legends to be put on certificates representing Class A Ordinary Shares or other securities of any member of theCompany Group issued under the Plan to make appropriate reference to such restrictions or may cause such Class A Ordinary Shares orother securities of any member of the Company Group issued under the Plan in book-entry form to be held subject to theCompany’s instructions or subject to appropriate stop-transfer orders. Notwithstanding any provision in the Plan to thecontrary, the Committee reserves the right to add, at any time, any additional terms or provisions to any Award granted under thePlan that the Committee, in its sole discretion, deems necessary or advisable in order that such Award complies with the legalrequirements of any governmental entity to whose jurisdiction the Award is subject.

 

(ii)             The Committee may cancel an Award or any portion thereof if it determines, in its sole discretion, that legal or contractualrestrictions and/or blockage and/or other market considerations would make the Company’s acquisition of Class A Ordinary Sharesfrom the public markets, the Company’s issuance of Class A Ordinary Shares to the Participant, the Participant’s acquisitionof Class A Ordinary Shares from the Company, and/or the Participant’s sale of Class A Ordinary Shares to the public markets, illegal,impracticable, or inadvisable. If the Committee determines to cancel all or any portion of an Award in accordance with the foregoing,the Company shall, subject to any limitations or reductions as may be necessary to comply with Section 409A of the Code: (A) pay to theParticipant an amount equal to the excess of (I) the aggregate Fair Market Value of the Class A Ordinary Shares subject to such Awardor portion thereof canceled (determined as of the applicable exercise date, or the date that the shares would have been vested or issued,as applicable), over (II) the aggregate Exercise Price or Strike Price (in the case of an Option or SAR, respectively) or any amount payableas a condition of issuance of Class A Ordinary Shares (in the case of any other Award), with such amount being delivered to the Participantas soon as practicable following the cancellation of such Award or portion thereof or (B) in the case of Restricted Shares, RestrictedShare Units, or Other Equity-Based Awards, provide the Participant with a cash payment or equity subject to deferred vesting and deliveryconsistent with the vesting restrictions applicable to such Restricted Shares, Restricted Share Units, or Other Equity-Based Awards, orthe underlying shares in respect thereof.

 

 

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(k)              No Section 83(b) Elections Without Consent of Company. No election under Section 83(b) of the Code or under a similarprovision of law may be made unless expressly permitted by the terms of the applicable Award Agreement or by action of the Committee (orits designee in accordance with Section 4(c) of the Plan) in writing prior to the making of such election. If a Participant, in connectionwith the acquisition of Class A Ordinary Shares under the Plan or otherwise, is expressly permitted to make such election and the Participantmakes the election, the Participant shall notify the Company of such election within ten days of filing notice of the election with theInternal Revenue Service or other governmental authority, in addition to any filing and notification required pursuant to Section 83(b)of the Code or other applicable provision.

 

(l)                Payments to Persons Other Than Participants. If the Committee shall find that any Person to whom any amount is payableunder the Plan is unable to care for the Participant’s affairs because of illness or accident, or is a minor, or has died, thenany payment due to such Person or the Participant’s estate (unless a prior claim therefor has been made by a duly appointed legalrepresentative) may, if the Committee so directs the Company, be paid to the Participant’s spouse, child, relative, an institutionmaintaining or having custody of such Person, or any other Person deemed by the Committee to be a proper recipient on behalf of such Personotherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor.

 

(m)            Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board nor the submission of the Plan to the shareholdersof the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangementsas it may deem desirable, including, without limitation, the granting of equity-based awards otherwise than under the Plan, and sucharrangements may be either applicable generally or only in specific cases.

 

(n)              No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separatefund of any kind or a fiduciary relationship between any member of the Company Group, on the one hand, and a Participant or other Person,on the other hand. No provision of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations underthe Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregateany assets, nor shall the Company be obligated to maintain separate bank accounts, books, records, or other evidence of the existenceof a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan otherthan as unsecured general creditors of the Company, except that insofar as they may have become entitled to payment of additional compensationby performance of services, they shall have the same rights as other service providers under general law.

 

(o)              Reliance on Reports. Each member of the Committee and each member of the Board shall be fully justified in actingor failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon anyreport made by the independent public accountant of any member of the Company Group and/or any other information furnished in connectionwith the Plan by any agent of the Company or the Committee or the Board, other than himself or herself.

 

 

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(p)              Relationship to Other Benefits. No payment under the Plan shall be taken into account in determining any benefitsunder any pension, retirement, profit sharing, group insurance, or other benefit plan of the Company except as otherwise specificallyprovided in such other plan or as required by Applicable Law.

 

(q)              Governing Law. THIS PLAN AND ITS ENFORCEMENT AND ANY CONTROVERSY ARISING OUT OF OR RELATING TO ANY RIGHTS AND OBLIGATIONSHEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE CAYMAN ISLANDS. Each Participant who accepts an Awardhereby (i) agrees that any action, directly or indirectly, arising out of, under or relating to the Plan or any Award hereunder shallexclusively be brought in and shall exclusively be heard and determined by either the Supreme Court of the State of New York sitting inManhattan or the United States District Court for the Southern District of New York, and (ii) solely in connection with the action(s)contemplated by subsection (i) hereof, (A) irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the courtsidentified in subsection (i) hereof, (B) irrevocably and unconditionally waives any objection to the laying of venue in any of the courtsidentified in clause (i) of this Section 12(q), (C) irrevocably and unconditionally waives and agrees not to plead or claim that any ofthe courts identified in such clause (i) is an inconvenient forum or does not have personal jurisdiction over such Participant or anymember of the Company Group, and (D) agrees that mailing of process or other papers in connection with any such action in the manner providedherein or in such other manner as may be permitted by Applicable Law shall be valid and sufficient service thereof. EACH PARTICIPANT WHOACCEPTS AN AWARD IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION, OR OTHER PROCEEDING INSTITUTED BY OR AGAINST SUCHPARTICIPANT IN RESPECT OF THE PARTICIPANT’S RIGHTS OR OBLIGATIONS HEREUNDER.

 

(r)               Severability. If any provision of the Plan or any Award or Award Agreement is or becomes or is deemed to be invalid,illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemedapplicable by the Committee, such provision shall be construed or deemed amended to conform to Applicable Law, or if it cannot be construedor deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provisionshall be construed or deemed stricken as to such jurisdiction, Person, or Award and the remainder of the Plan and any such Award shallremain in full force and effect.

 

(s)               Obligations Binding on Successors. The obligations of the Company under the Plan shall be binding upon any successorcorporation or organization resulting from the merger, consolidation, or other reorganization of the Company, or upon any successor corporationor organization succeeding to substantially all of the assets and business of the Company.

 

(t)                Section 409A of the Code.

 

(i)                 Notwithstandingany provision of the Plan to the contrary, it is intended that the provisions of the Plan comply with Section 409A of the Code, andall provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes orpenalties under Section 409A of the Code. Each Participant is solely responsible and liable for the satisfaction of all taxes andpenalties that may be imposed on or in respect of such Participant in connection with the Plan (including any taxes and penaltiesunder Section 409A of the Code), and neither the Service Recipient nor any other member of the Company Group shall have anyobligation to indemnify or otherwise hold such Participant (or any beneficiary) harmless from any or all of such taxes or penalties.With respect to any Award that is considered “deferred compensation” subject to Section 409A of the Code, references inthe Plan to “termination of employment” (and substantially similar phrases) shall mean “separation fromservice” within the meaning of Section 409A of the Code. For purposes of Section 409A of the Code, each of the paymentsthat may be made in respect of any Award granted under the Plan is designated as a separate payment.

 

 

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(ii)             Notwithstanding anything in the Plan to the contrary, if a Participant is a “specified employee” within themeaning of Section 409A(a)(2)(B)(i) of the Code, no payments in respect of any Awards that are “deferred compensation” subjectto Section 409A of the Code and which would otherwise be payable upon the Participant’s “separation from service”(as defined in Section 409A of the Code) shall be made to such Participant prior to the date that is six months after the date of suchParticipant’s “separation from service” or, if earlier, the date of the Participant’s death. Following any applicablesix-month delay, all such delayed payments will be paid in a single lump sum on the earliest date permitted under Section 409A of theCode that is also a business day.

 

(iii)           Unless otherwise provided by the Committee in an Award Agreement or otherwise, in the event that the timing of paymentsin respect of any Award (that would otherwise be considered “deferred compensation” subject to Section 409A of the Code) areaccelerated upon the occurrence of (A) a Change in Control, no such acceleration shall be permitted unless the event giving rise to theChange in Control satisfies the definition of a change in the ownership or effective control of a corporation, or a change in the ownershipof a substantial portion of the assets of a corporation pursuant to Section 409A of the Code or (B) a Disability, no such accelerationshall be permitted unless the Disability also satisfies the definition of “Disability” pursuant to Section 409A of the Code.

 

(u)              Clawback/Repayment. All Awards shall be subject to reduction, cancellation, forfeiture or recoupment to the extentnecessary to comply with (i) any clawback, forfeiture or other similar policy adopted by the Board or the Committee and as in effect fromtime to time; and (ii) Applicable Law. Further, unless otherwise determined by the Committee, to the extent that the Participant receivesany amount in excess of the amount that the Participant should otherwise have received under the terms of the Award for any reason (including,without limitation, by reason of a financial restatement, mistake in calculations or other administrative error), the Participant shallbe required to repay any such excess amount to the Company.

 

(v)              Detrimental Activity. Notwithstanding anything to the contrary contained herein, if a Participant has engaged inany Detrimental Activity, as determined by the Committee, the Committee may, in its sole discretion and to the extent permitted by ApplicableLaw, provide for one or more of the following:

 

(i)                cancellation of any or all of such Participant’s outstanding Awards; or

 

(ii)              forfeiture by the Participant of any gain realized on the vesting or exercise of Awards, and repayment of any such gainpromptly to the Company.

 

 

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(w)            Right of Offset. The Company will have the right to offset against its obligation to deliver Class A Ordinary Shares(or other property or cash) under the Plan or any Award Agreement any outstanding amounts (including, without limitation, travel and entertainmentor advance account balances, loans, repayment obligations under any Awards, or amounts repayable to the Company pursuant to tax equalization,housing, automobile, or other employee programs) that the Participant then owes to any member of the Company Group and any amounts theCommittee otherwise deems appropriate pursuant to any tax equalization policy or agreement. Notwithstanding the foregoing, if an Awardis “deferred compensation” subject to Section 409A of the Code, the Committee will have no right to offset against its obligationto deliver Class A Ordinary Shares (or other property or cash) under the Plan or any Award Agreement if such offset could subject theParticipant to the additional tax imposed under Section 409A of the Code in respect of an outstanding Award.

 

(x)              Expenses; Titles and Headings. The expenses of administering the Plan shall be borne by the Company Group. The titlesand headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan,rather than such titles or headings, shall control.