exv10w15






Exhibit 10.15




CARBONITE (CHINA) CO., LTD.




INCENTIVE UNIT PLAN


1. Purpose. The purpose of this Incentive Unit Plan (the “Plan”) is to provide certain key
persons who provide services, directly or indirectly, to Carbonite (China) Co., Ltd. (“Carbonite
China”) with an incentive similar to that to be derived from holding shares of Carbonite, Inc., a
Delaware corporation and the indirect parent company of Carbonite China (“Carbonite US”). The Plan
does not contemplate the issuance of any equity securities, or the issuance of any options,
warrants or other rights to acquire any equity securities, of any kind in either Carbonite China or
Carbonite US. The Plan only provides for cash payments as incentives upon the happening of certain
events as set forth herein.



2. Incentive Units and Administration.




     (a) Incentive Units. Each incentive unit represents a contractual agreement between
the Carbonite China and the recipient of such incentive unit (the “Recipient”) with respect to
payments to be made by the Carbonite China upon the fulfillment of certain conditions in connection
with the consummation of an Organic Event (as defined herein). Incentive units granted pursuant to
the Plan shall be authorized by action of the Board of Directors of the Carbonite China, after
prior authorization by the Board of Directors of Carbonite US, and are not intended to meet the
requirements of any section of the U.S. Internal Revenue Code of 1986, as amended (the “Code”). As
a condition to the grant of an incentive unit under the Plan, each Recipient shall execute an
incentive unit agreement in a form that is consistent with the Plan and as may be specified by the
Board of Directors of Carbonite China. An acceptable form of an incentive unit agreement is
attached hereto as Exhibit A and may be modified upon the approval of a majority of the
members of the Board of Directors of Carbonite China in its sole discretion. An incentive unit is
not an equity interest in Carbonite China or Carbonite US and does not require the Recipient to
make any payments to, or any financial investment in, either Carbonite China or Carbonite US.
Incentive units shall be granted only to persons who are, at the time of grant, employees,
officers, consultants, advisors or directors of Carbonite China. A person who has been granted an
incentive unit may, if he or she is otherwise eligible, be granted additional incentive units if a
majority of the members of the Board of Directors of Carbonite China, after approval by the Board
of Directors of Carbonite US, shall so determine.



     (b) Administration. The Plan will be administered by the action of a majority of the
members of the Board of Directors of the Carbonite China, whose construction and interpretation of
the terms and provisions of the Plan shall be final and conclusive. The Board of Directors of
Carbonite China, acting by a majority of its members, may grant incentive units pursuant to this
Plan; provided, however, that all grants of incentive units must first be approved by the Board of
Directors of Carbonite US. The Board of Directors of Carbonite China shall have authority, acting
by a majority of its members and with the prior approval of the Board of Directors of Carbonite US,
and subject to the express provisions of the Plan, to construe the respective incentive unit
agreements and the Plan; to prescribe, amend and rescind rules and regulations relating to the
Plan; to determine the terms and provisions of the respective incentive unit agreements, which need
not be identical; to determine the terms and provisions, if any, for the vesting of incentive units
and the acceleration of any vesting schedule; and to make all other determinations that are, in the
judgment of a majority of the members of the Board of Directors of Carbonite China, necessary or
desirable for the administration of the Plan. The Board of Directors of Carbonite China and
Carbonite US need not treat each recipient of an incentive unit uniformly. The Board of Directors
of Carbonite China, acting by a majority of its members and with the prior approval



 









 




of the Board of Directors of Carbonite US, may correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in any incentive unit agreement in the manner and to the
extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final
judge of such expediency. No director of either Carbonite China or Carbonite US shall be liable
for any action or determination made in good faith. The Board of Directors of Carbonite China may
delegate any or all of its powers under the Plan to a committee (the “Committee”) appointed by a
majority of the member of the Board of Directors of Carbonite China and approved by the Board of
Directors of Carbonite US. If so delegated, all references to the Board of Directors of Carbonite
China in the Plan shall mean and relate to such Committee.




     (c) Transferability of Incentive Units. Except as the Board of Directors of
Carbonite US may otherwise determine or provide in an incentive unit agreement, incentive units are
personal and may not be sold, assigned, transferred, pledged or otherwise encumbered by the
Recipient, either voluntarily or by operation of law, except by will or the laws of descent and
distribution.


3. Incentive Units Subject to Plan. The maximum number of incentive units which may be
issued under the Plan is 60,000 units. If an incentive unit granted under the Plan shall expire or
terminate for any reason prior to the consummation of an Asset Sale or Stock Sale (each as defined
below) or prior to vesting, such incentive units shall again be available for subsequent grant(s)
under the Plan. Vested units terminated from and after a Public Offering (as defined below) may
not be available for subsequent grant(s) under the Plan.




          (a) Asset Sale. In the event that all or substantially all of the assets of Carbonite
US are sold or transferred to an unaffiliated third party or parties but excluding any such
transaction(s) where the stockholders of Carbonite US as constituted immediately prior to such
transaction will, immediately after such transaction hold at least fifty percent (50%) of the
voting power of the surviving or acquiring entity (an “Asset Sale” or a “Sale Transaction”), then
all outstanding incentive units, whether vested or unvested, then owned by a Recipient shall be
terminated as of the date of such Sale Transaction, and compensation shall be payable with respect
to each incentive unit that is vested as of such termination date in accordance with the provisions
of Section 4 below.



          (b) Stock Sale. In the event that an unaffiliated person or persons in a single
transaction or series of related transaction, whether by purchase, merger or consolidation,
acquires all of the outstanding Common Stock of Carbonite US in a single transaction, in an
integrated series of transactions or as a result of any such transaction or series of transactions
(a “Stock Sale” or a “Sale Transaction”), then all incentive units, whether vested or unvested,
owned by a Recipient shall be terminated as of the date of such Sale Transaction, and compensation
shall be payable with respect to each incentive unit that is vested as of such termination date in
accordance with the provisions of Section 4 below.



          (c) Public Offering. In the event that Carbonite US shall consummate its first firm
commitment underwritten public offering of common stock of Carbonite US which is effected pursuant
to a registration statement filed with, and declared effective by, the U.S. Securities and Exchange
Commission under the Securities Act of 1933, as amended from time to time, other than an offering
registered on Form S-8 or any similar form (a “Public Offering”), then commencing with the date
that is six months after the consummation of such Public Offering (the “IPO Payment Date”), each
incentive unit shall terminate as it becomes vested and the Recipient shall thereafter be entitled
to receive payment, pursuant to Section 4 below, for each such vested and terminated incentive
unit;



 









 




provided, however, that any incentive unit that is vested prior to the IPO Payment Date shall not
be terminated until the IPO Payment Date.



4. Unit Payments. The amount of compensation payable to a Recipient in connection with the
termination of vested incentive unit is referred to herein as a “Unit Payment”. Except for payment
of a Unit Payment, if any, a Recipient shall have no rights hereunder with respect to any
terminated incentive unit.




          (a) Asset Sale. With respect to each incentive unit terminated pursuant to Section
3(a) as a result of an Asset Sale, a Recipient shall receive compensation (if such number is
positive) for each vested incentive unit only in an amount equal to (x) the quotient obtained by
dividing the aggregate consideration received by Carbonite US in the Asset Sale less (i) the amount
of all fees and expenses paid or payable by Carbonite US in connection with such Asset Sale
(“Fees”), (ii) the amount of all indebtedness of Carbonite US outstanding immediately prior to the
Closing Date which is not assumed by the buyer (“Debt”), (iii) the amount of any cash bonus plans
in place and payable by Carbonite US in connection with the consummation of the Asset Sale
(“Benefit Amount”), and (iv) the amount required to redeem any preferred stock of Carbonite US (the
“Redemption Amount”) by the Fully Diluted Common Shares, minus (y) the Base Value. For avoidance
of doubt, the aggregate consideration received by Carbonite pursuant to an Asset Sale shall not
include any escrowed, contingent, earnout or other deferred amounts (“Deferred Consideration”)
unless and until such Deferred Consideration is received by Carbonite US and, upon receipt, the
calculation of the Unit Payment to a Recipient shall be done pursuant to this Section 4(a) with
respect to such Deferred Consideration so received less any Fees, Debt, Benefit Amount or
Redemption Amount payable on the newly received Deferred Consideration.



          (b) Stock Sale. With respect to each incentive unit terminated pursuant to Section
3(b) as a result of a Stock Sale, a Recipient shall receive compensation (if such number is
positive) for each vested incentive unit only in an amount equal to (x) the quotient obtained by
dividing (1) the aggregate price received by the stockholders of Carbonite US in such Stock Sale
for the capital stock of Carbonite US minus the Debt, all Fees, the Benefit Amount and the
Redemption Amount, if applicable, by (2) the aggregate number of Fully Diluted Common Shares, minus
(y) the Base Value. For avoidance of doubt, the aggregate consideration received by the
stockholders of Carbonite US pursuant to a Stock Sale shall not include any Deferred Consideration
unless and until such Deferred Consideration is received by the stockholders of Carbonite US and,
upon receipt, the calculation of the Unit Payment to a Recipient shall be done pursuant to this
Section 4(b) with respect to such Deferred Consideration so received less any Fees, Debt, Benefit
Amount or Redemption Amount payable on the newly received Deferred Consideration.



          (c) Public Offering. With respect to each incentive unit which is vested and
terminated pursuant to Section 3(c) above, a Recipient shall receive compensation (if such number
is positive) in an amount equal to (x) the then current Fair Market Value of the Common Stock of
Carbonite US minus (y) the Base Value.



          (d) Base Value. Unless expressly provided otherwise by the Board of Director of
Carbonite US and set forth in the applicable incentive unit agreement, the Base Value shall be
equal to the fair market value of the common stock of Carbonite US at the time the grant of an
incentive unit to a Recipient is approved by the Board of Directors of Carbonite US. The
determination of the Base Value by the Board of Directors of Carbonite US shall be final and
binding on each Recipient.



 









 





          (e) Date of Payment.



               (i) Asset Sale or Stock Sale. In the event of an Asset Sale or Stock Sale, all
payments shall be made by Carbonite China to a Recipient within thirty (30) days after the later of
(x) the date of consummation of the Asset Sale or Stock Sale, as applicable, and (y) the date on
which Carbonite China has received all approvals and consents from applicable governmental
authorities, including, without limitation, approval of any necessary capital increases from the
applicable authorities for the Peoples Republic of China. Payment of compensation under Sections
3(a) and (b) shall be made in the same form as payment is made by the buyer to Carbonite US in the
Asset Sale or Stock Sale, as applicable. Further, if the Asset Sale or Stock Sale provides for any
part of the consideration to consist of Deferred Consideration, Unit Payments related to the
Deferred Consideration shall not be due and payable to a Recipient unless and until thirty (30)
days after (i) such Deferred Consideration is received by Carbonite US or its stockholders and (ii)
the date on which Carbonite China has received all approvals and consents from applicable
governmental authorities, including, without limitation, approval of any necessary capital
increases from the applicable authorities for the People Republic of China.



               (ii) Public Offering. If an incentive unit is terminated pursuant to Section 3(c)
above on a date that is on or after January 1st and on or prior to May 1st in
any given calendar year, then all payments shall be made by Carbonite China to a Recipient with
respect to such vested and terminated incentive units on the later of (x) August 1st of
the same calendar year or (y) thirty (30) days after the date on which Carbonite China has received
all approvals and consents from applicable governmental authorities, including, without limitation,
approval of any necessary capital increases from the applicable authorities for the Peoples
Republic of China. If an incentive unit is terminated pursuant to Section 3(c) above on a date
that is after May 1st and on or prior to December 31st of any given calendar
year, payments with respect to such vested and terminated incentive units shall be made by
Carbonite China to a Recipient on the later of (x) August 1st of the next succeeding
calendar year or (y) thirty (30) days after the date on which Carbonite China has received all
approvals and consents from applicable governmental authorities, including, without limitation,
approval of any necessary capital increases from the applicable authorities for the Peoples
Republic of China.



          (f) Computation of Unit Payment. At the time that it makes any Unit Payment,
Carbonite China shall deliver to the Recipient a statement it obtains from Carbonite US that is
signed by the Chief Financial Officer of Carbonite US setting forth the computations for arriving
at the amount of such payment and stating that such computations were made in accordance with U.S.
generally accepted accounting principles as consistently applied by Carbonite US. Absent a
manifest mathematical error, such statement will be binding on all parties.


5. Termination or Forfeiture. Upon termination of a Recipient’s employment, consulting or
advisory relationship with Carbonite China (or affiliates thereof if determined by a majority of
the members of the Board of Directors of Carbonite China upon prior approval of Carbonite US), all
rights with respect to any unvested incentive units granted to such terminated employee, officer,
director, advisor or consultant shall be forfeited and of no further force and effect.
Furthermore, all incentive units granted pursuant to the Plan, whether vested or unvested, shall
terminate on the earlier of (w) the fifth anniversary of the date of grant, (x) pursuant to the
provisions of Section 3 of the Plan, (y) the date on which the liquidation or dissolution of
Carbonite China is commenced or Carbonite China otherwise ceases to do business, or (z) the date of
consummation of a transaction or series of related transactions pursuant to which Carbonite China
is no longer an indirect subsidiary of Carbonite US





 









 







that is required to be included in the consolidated financial statements of Carbonite US pursuant
to U.S. generally accepted accounting principles as consistently applied by Carbonite US.



6. Non-transferability of Incentive Units. Incentive units granted hereunder are personal
and no incentive unit granted under the Plan shall be assignable or transferable by the Recipient
to whom it is granted, either voluntarily or by operation of law, except by will or the laws of
descent and distribution.



7. Rights as a Shareholder. The holder of an incentive unit shall have no rights as a
shareholder with respect to the Carbonite China or Carbonite US.



8. No Special Employment Rights. Nothing contained in the Plan or in any incentive unit
agreement shall confer upon any Recipient any right with respect to the continuation of his or her
employment by, or consulting or advisory relationship with, the Carbonite China, any affiliates
thereof or interfere in any way with the right of the Carbonite China or any affiliates thereof, at
any time, to terminate such employment, consulting or advisory relationship or to increase or
decrease the compensation of the Recipient. Whether an authorized leave of absence or absence in
military or government service shall constitute termination of employment or the consulting or
advisory relationship shall be determined by the Board of Directors of the Carbonite China, in its
sole discretion, at the time of such absence.



9. Other Employee Benefits. The amount of any compensation deemed to be received by a
Recipient as a result of his receipt of a Unit Payment will not constitute compensation with
respect to which any other employee benefits of such Recipient are determined, including, without
limitation, benefits under any bonus, pension, profit-sharing, life insurance or salary
continuation plan, except as otherwise specifically determined by the Board of Directors.



10. Amendment of the Plan. A majority of the members of the Board of Directors of
Carbonite China may at any time, and from time to time and with the prior approval of the Board of
Directors of Carbonite US, modify or amend the Plan in any respect. With the consent of the
Recipient affected, a majority of the members of the Board of Directors of Carbonite China may
amend outstanding incentive unit agreements in a manner not inconsistent with the Plan.



11. Withholding. Carbonite China shall have the right to deduct from any Termination
Payments any federal, state or local taxes of any kind required by law to be withheld with respect
thereto.



12. Effective Date and Duration of the Plan.




     (a) Effective Date. The Plan shall become effective when adopted by the Board of
Directors of each of Carbonite China and Carbonite US.



     (b) Termination. The Plan shall terminate on the earlier of (w) the vote of the
Board of Directors of Carbonite US to terminate the Plan, (x) the consummation of either an Asset
Sale or Stock Sale, (y) the date on which the liquidation or dissolution of Carbonite China is
commenced or Carbonite China otherwise ceases to do business, or (z) the date of consummation of a
transaction or series of related transactions pursuant to which Carbonite China is no longer an
indirect subsidiary of Carbonite US that is required to be included in the consolidated financial
statements of Carbonite US pursuant to U.S. generally accepted accounting principles as
consistently applied by Carbonite US.



 









 





Exhibit A




CARBONITE (CHINA) CO., LTD.




INCENTIVE UNITS AGREEMENT



     This is an Incentive Units Agreement dated as of ________, 2011 by and between Carbonite
(China) Co., Ltd., a corporation organized pursuant to the laws of the Peoples Republic of China
(“Carbonite China”), and _________ (the “Employee”).



RECITALS



     WHEREAS, Carbonite China and Employee desire to secure for each other certain benefits arising
from providing an incentive to Employee similar to that to be derived from holding shares of common
stock, $.01 par value per share (the “Common Stock”), of Carbonite, Inc., a Delaware corporation
and the indirect parent company of Carbonite China (“Carbonite US”), but without transferring to
Employee ownership of any capital stock of Carbonite China or Carbonite US, and to provide for
payments to Employee upon the happening of certain events as set forth in this Agreement.



     NOW, THEREFORE, in consideration of the mutual promises herein contained, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree
as follows:



     1. Awards of Incentive Units and Vesting.



          (a) Award. Carbonite China hereby grants to Employee ___ incentive units (“Incentive
Units”) on the terms and conditions set forth herein. The Incentive Units shall not be represented
by a certificate. The Incentive Units shall be subject to the terms and provisions of the
Incentive Unit Plan of Carbonite China.



          (b) Vesting. Employee shall be entitled to Unit Payments as set forth herein with
respect to that number of Incentive Units that have vested pursuant to this Section 1(b) below.
Upon the termination of Employee’s employment with Carbonite China for any reason or for no reason,
including without limitation, resignation, death or disability of Employee, the vesting of all
Incentive Units shall terminate immediately, all unvested Incentive Units shall terminate
immediately and, notwithstanding any other provision contained in this Agreement, Employee shall
forfeit all rights to receive any compensation in connection with the unvested Incentive Units so
terminated.



     The Incentive Units become vested as to 25% percent of the total Incentive Units subject to
this Agreement on [DATE] (“First Vest Date”). Thereafter, unless otherwise terminated pursuant to
this Agreement, the Incentive Units become vested on a quarterly basis as to an additional 6.25%
percent of the aggregate Incentive Units for the next twelve quarters.



          (c) Expiration. This Agreement and all Incentive Units granted herein, whether vested
or unvested, shall terminate on the earlier of (w) the fifth anniversary of the date hereof, (x)
pursuant to the provisions of Section 1(b) or Section 2, (y) the date on which the liquidation or
dissolution of Carbonite China is commenced or Carbonite China otherwise ceases to do business, or
(z) the date of consummation of a transaction or series of related transactions pursuant to which
Carbonite China is no longer an indirect subsidiary of Carbonite US that is required to be included
in



 









 




the consolidated financial statements of Carbonite US pursuant to U.S. generally accepted
accounting principles as consistently applied by Carbonite US.




     2. Termination of Incentive Units; Payment of Compensation.



          (a) Asset Sale. In the event that all or substantially all of the assets of Carbonite
US are sold or transferred to an unaffiliated third party or parties but excluding any such
transaction(s) where the stockholders of Carbonite US as constituted immediately prior to such
transaction will, immediately after such transaction hold at least fifty percent (50%) of the
voting power of the surviving or acquiring entity (an “Asset Sale” or a “Sale Transaction”), then
all outstanding Incentive Units, whether vested or unvested, then owned by Employee shall be
terminated as of the date of such Sale Transaction, and compensation shall be payable with respect
to each Incentive Unit that is vested as of such termination date in accordance with the provisions
of Section 3 below.



          (b) Stock Sale. In the event that an unaffiliated person or persons in a single
transaction or series of related transaction, whether by purchase, merger or consolidation,
acquires all of the outstanding Common Stock of Carbonite US in a single transaction, in an
integrated series of transactions or as a result of any such transaction or series of transactions
(a “Stock Sale” or a “Sale Transaction”), then all Incentive Units, whether vested or unvested,
owned by Employee shall be terminated as of the date of such Sale Transaction, and compensation
shall be payable with respect to each Incentive Unit that is vested as of such termination date in
accordance with the provisions of Section 3 below.



          (c) Public Offering. In the event that Carbonite US shall consummate its first firm
commitment underwritten public offering of Common Stock of Carbonite US which is effected pursuant
to a registration statement filed with, and declared effective by, the Securities and Exchange
Commission under the Securities Act of 1933, as amended from time to time, other than an offering
registered on Form S-8 or any similar form (a “Public Offering”), then commencing with the date
that is six months after the consummation of such Public Offering (the “IPO Payment Date”), each
Incentive Unit shall terminate as it becomes vested and the Employee shall thereafter be entitled
to receive payment, pursuant to Section 3 below, for each such vested and terminated Incentive
Unit; provided, however, that any Incentive Unit that is vested prior to the IPO Payment Date shall
not be terminated until the IPO Payment Date.



     3. Unit Payments. The amount of compensation payable with respect to the termination
of a vested Incentive Unit (a “Unit Payment”) shall be determined as set forth below in this
Section 3. Except for payment of any applicable Unit Payment, Employee shall have no rights under
the Agreement with respect to any terminated Incentive Unit. All monetary values in this Agreement
are expressed in U.S. dollars.



          (a) Asset Sale. With respect to each Incentive Unit terminated pursuant to Section
2(a) as a result of an Asset Sale, Employee shall receive compensation (if such number is positive)
for each vested Incentive Unit only in an amount equal to (x) the quotient obtained by dividing the
aggregate consideration received by Carbonite US in the Asset Sale less (i) the amount of all fees
and expenses paid or payable by Carbonite US in connection with such Asset Sale (“Fees”), (ii) the
amount of all indebtedness of Carbonite US outstanding immediately prior to the Closing Date which
is not assumed by the buyer (“Debt”), (iii) the amount of any cash bonus plans in place and payable
by Carbonite US in connection with the consummation of the Asset Sale (“Benefit Amount”), and



 









 




(iv) the amount required to redeem any preferred stock of Carbonite US (the “Redemption Amount”) by
the Fully Diluted Common Shares, minus (y) the Base Value. For avoidance of doubt, the aggregate
consideration received by Carbonite pursuant to an Asset Sale shall not include any escrowed,
contingent, earnout or other deferred amounts (“Deferred Consideration”) unless and until such
Deferred Consideration is received by Carbonite US and, upon receipt, the calculation of the Unit
Payment to Employee shall be done pursuant to this Section 3(a) with respect to such Deferred
Consideration so received less any Fees, Debt, Benefit Amount or Redemption Amount payable on the
newly received Deferred Consideration.




          (b) Stock Sale. With respect to each Incentive Unit terminated pursuant to Section
2(b) as a result of a Stock Sale, Employee shall receive compensation (if such number is positive)
for each vested Incentive Unit only in an amount equal to (x) the quotient obtained by dividing (1)
the aggregate price received by the stockholders of Carbonite US in such Stock Sale for the capital
stock of Carbonite US minus the Debt, all Fees, the Benefit Amount and the Redemption Amount, if
applicable, by (2) the aggregate number of Fully Diluted Common Shares, minus (y) the Base Value.
For avoidance of doubt, the aggregate consideration received by the stockholders of Carbonite US
pursuant to a Stock Sale shall not include any Deferred Consideration unless and until such
Deferred Consideration is received by the stockholders of Carbonite US and, upon receipt, the
calculation of the Unit Payment to Employee shall be done pursuant to this Section 3(b) with
respect to such Deferred Consideration so received less any Fees, Debt, Benefit Amount or
Redemption Amount payable on the newly received Deferred Consideration.



          (c) Public Offering. With respect to each Incentive Unit which is vested and
terminated pursuant to Section 2(c) above, Employee shall receive compensation (if such number is
positive) in an amount equal to (x) the then current Fair Market Value of the Common Stock of
Carbonite US minus (y) the Base Value.



          (d) Date of Payment.



               (i) Asset Sale or Stock Sale. In the event of an Asset Sale or Stock Sale, all
payments shall be made by Carbonite China to Employee within thirty (30) days after the later of
(x) the date of consummation of the Asset Sale or Stock Sale, as applicable, and (y) the date on
which Carbonite China has received all approvals and consents from applicable governmental
authorities, including, without limitation, approval of any necessary capital increases from the
applicable authorities for the Peoples Republic of China. Payment of compensation under Sections
2(a) and (b) shall be made in the same form as payment is made by the buyer to Carbonite US in the
Asset Sale or Stock Sale, as applicable. Further, if the Asset Sale or Stock Sale provides for any
part of the consideration to consist of Deferred Consideration, Unit Payments related to the
Deferred Consideration shall not be due and payable to Employee unless and until thirty (30) days
after (i) such Deferred Consideration is received by Carbonite US or its stockholders and (ii) the
date on which Carbonite China has received all approvals and consents from applicable governmental
authorities, including, without limitation, approval of any necessary capital increases from the
applicable authorities for the People Republic of China.



               (ii) Public Offering. If an Incentive Unit is terminated pursuant to Section 2(c)
above on a date that is on or after January 1st and on or prior to May 1st in
any given calendar year, then all payments shall be made by Carbonite China to Employee with
respect to such vested and terminated Incentive Units on the later of (x) August 1st of
the same calendar year or (y) thirty (30) days after the date on which Carbonite China has received
all approvals and consents from



 









 




applicable governmental authorities, including, without limitation, approval of any necessary
capital increases from the applicable authorities for the Peoples Republic of China. If an
Incentive Unit is terminated pursuant to Section 2(c) above on a date that is after May
1st and on or prior to December 31st of any given calendar year, payments
with respect to such vested and terminated Incentive Units shall be made by Carbonite China to
Employee on the later of (x) August 1st of the next succeeding calendar year or (y)
thirty (30) days after the date on which Carbonite China has received all approvals and consents
from applicable governmental authorities, including, without limitation, approval of any necessary
capital increases from the applicable authorities for the Peoples Republic of China.




     4. Computation of Unit Payment. At the time that it makes any Unit Payment, Carbonite
China shall deliver to Employee a statement it obtains from Carbonite US that is signed by the
Chief Financial Officer of Carbonite US setting forth the computations for arriving at the amount
of such payment and stating that such computations were made in accordance with U.S. generally
accepted accounting principles as consistently applied by Carbonite US. Absent a manifest
mathematical error, such statement will be binding on all parties.



     5. Beneficiary of Employee. In the event of Employee’s death, any compensation due
hereunder to Employee on account of the termination of Incentive Units shall be paid to such person
or persons as Employee shall have last specified in a designation of beneficiary in the form of
Exhibit A (a “Designation of Beneficiary”) delivered to Carbonite China, who shall provide
a copy to Carbonite US, prior to Employee’s death (a “Beneficiary”), in such proportions as
Employee shall have specified in such Designation of Beneficiary. If Employee fails to provide
Carbonite China with a Designation of Beneficiary, he or she shall be deemed to have designated his
estate as his Beneficiary.



     6. Corporate Adjustments; Dividends. In the event of a reorganization,
recapitalization, reclassification, stock split, stock dividend, combination of shares, or any
other similar transaction effecting the corporate structure or shares of Carbonite US, the number
of Incentive Units and the Base Value held by Employee hereunder shall be considered and
appropriately adjusted to reflect such event, all as considered and determined in good faith by the
Board of Directors of Carbonite China. The judgment of the Board of Directors as to what
adjustments, if any, will be made and the extent thereof will be final, binding and conclusive. No
adjustment shall be made in connection with sale of additional shares of capital stock by Carbonite
US.



     7. Employee’s Rights; No Rights as a Shareholder. Neither Employee nor his or her
Beneficiary shall be, or have any of the rights or privileges of, a stockholder of Carbonite China
or Carbonite US on account of holding any Incentive Unit, but shall have only such rights as are
specified in this Agreement. No adjustment or payment shall be made for dividends, distributions
or any other rights of holders of capital stock of Carbonite China except as set forth in Section
7.



     8. Effect on Employment. Nothing in this Agreement shall be construed as imposing any
obligation on Carbonite China to employ, or to continue to employ, Employee, and nothing herein
shall be construed to affect, amend, or abrogate any other rights or obligations with respect to
employment which either Employee or Carbonite China may otherwise have by agreement or under law.



     9. Tax Withholding; Other Employee Benefits. All payments of compensation with
respect to Incentive Units shall be subject when made to such employment, income or other tax



 









 




withholding deductions as are required by law. Payments to Employee in accordance with the terms
and provisions of the Agreement shall be treated for tax purposes as compensation. However, the
amount of any compensation deemed to be received by Employee as a result of the termination of any
Incentive Units will not constitute compensation with respect to which any other employee benefits
of such employee are determined, including, without limitation, benefits under any bonus, pension,
profit-sharing, life insurance or salary continuation plan, except as otherwise specifically
determined by the Board of Directors. Employee represents and warrants to Carbonite China that
Employee is not providing any services for Carbonite China, Carbonite US or any affiliate of such
entities in the United States and Employee is not a “U.S. person” under the United States Internal
Revenue Code, as amended.




     10. Nontransferability of Incentive Units. Neither any Incentive Units awarded under
this Agreement nor Employee’s rights under the Agreement shall be assigned, transferred or
encumbered in whole or in part by Employee or Employee’s Beneficiary.



     11. Definitions. For purposes of the Agreement, the following definitions shall
apply:



          (a) “Base Value” means $________, subject to adjustment pursuant to Section 6(a) in
the event of a reorganization, recapitalization, reclassification, liquidation, stock split, stock
dividend, combination of shares, or any other change in the corporate structure or shares of stock
of Carbonite US.



          (b) “Fair Market Value” means: (x) if the securities are then traded on a national
securities exchange in the U.S. or the Nasdaq Global Market (or a similar national quotation
system), then the value shall be deemed to be the average of the closing prices of the securities
on such exchange or system over the thirty (30) day period ending three (3) days prior to the date
on which the Incentive Unit is terminated pursuant to Section 2(c) above; (y) if the foregoing
clause (x) does not apply but the securities are actively traded over-the-counter, then the value
shall be deemed to be the average of the closing bid prices over the thirty (30) day period ending
three (3) days prior to the Payment Request; and (z) if there is no active public market, then the
value shall be the fair market value thereof, as determined in good faith by the Board of Directors
of Carbonite US.



          (c) “Fully Diluted Common Shares” means the aggregate number of shares of the Common
Stock of Carbonite US outstanding on the date of consummation of the Asset Sale or Stock Sale, as
applicable, including all options and warrants that are exercisable but excluding for purposes of
this calculation all Incentive Units issued by Carbonite China.



     12. Miscellaneous Provisions



          (a) Notices. All notices or other communications which are to be provided under any
provision of the Agreement shall be in writing and shall be given by hand, by e-mail or facsimile
transmission with confirmation of successful transmission, or mailed by overnight courier with
evidence of signature for delivery required. Any such notice shall be deemed to have been given
on, and such notice shall be deemed dated, the date when the same shall have been delivered to the
party to whom such notice is given as evidenced by personal delivery, signature of receipt if by
overnight courier, or record of successful transmission if by email or facsimile. All notices to
be given to Carbonite China shall be addressed to it at its principal office, or at such other
address as it may designate by like notice. All notices to be given to Employee (or his or her
Beneficiary) shall be addressed to him or her at the office of Carbonite China at which he or she
is regularly employed, or



 









 




at such other address as Employee may designate by like notice. A copy of all notices delivered to
Carbonite China shall be simultaneously transmitted to the General Counsel of Carbonite US.




          (b) Binding Effect. The provisions of this Agreement shall be binding upon and inure
to the benefit of Employee, his heirs, executors, administrators or assigns, and upon Carbonite
China, and Carbonite China’s successors and assigns. This Agreement shall only be effective
against Carbonite China upon execution of this Agreement by a majority of the members of the Board
of Directors of Carbonite China.



          (c) Entire Agreement. This Agreement and the Certificate referred to herein set forth
the entire agreement between Carbonite China and Employee with respect to the matters referred to
herein and supersede all prior negotiations, commitments, understandings or agreements.



          (d) Termination, Amendments, Waivers and Further Agreements. This Agreement may not
be terminated or amended at any time except with the written consent of Carbonite China (as
evidenced by the execution of such consent by a majority of the members of the Board of Directors
of Carbonite China) and Employee. No waiver, change, modification, consent or discharge shall be
effective in connection with this Agreement or with any Incentive Unit except by an instrument in
writing executed by or on behalf of the party against whom enforcement of such amendment, waiver,
change, modification, consent or discharge is sought.



          (e) Severability. If any provision of this Agreement shall be held or deemed to be,
or shall in fact be, invalid, inoperative or unenforceable as applied to any particular case in any
jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflicting
of any provision with any constitution or statute or rule of public policy or for any other reason,
such circumstance shall not have the effect of rendering the provision or provisions in question
invalid, inoperative or unenforceable in any other jurisdiction or in any other case of
circumstance or of rendering any other provision or provisions herein contained invalid,
inoperative or unenforceable to the extent that such other provisions are not themselves actually
in conflict with such constitution, statute or rule of public policy, but this Agreement shall be
reformed and construed in any such jurisdiction or case as if such invalid, inoperative or
unenforceable provision had never been contained herein and such provision reformed so that it
would be valid, operative and enforceable to the maximum permitted in such jurisdiction or in such
case.



          (f) Section Headings. The headings contained in the Agreement are for reference only
and shall not in any way affect its meaning or interpretation.



          (g) Gender. Whenever used herein, the singular number shall include the plural, the
plural shall include the singular, and the use of any gender shall include all genders, unless the
context requires otherwise.



          (h) Language. This Agreement shall be in the English language and, if this Agreement
shall be translated into Chinese and there are any conflicts between the English language and
Chinese language versions of this Agreement, the English language version shall control.



 









 





     IN WITNESS WHEREOF, the parties have executed this Incentive Units Agreement as of the date
first written above.



	 	 	 	 	 
	 	CARBONITE (CHINA ) CO., LTD.:

 	 
	 	By:  	 	 
	 
	 	 	 
	 	By:  	
 	 
	 
	 
	 	EMPLOYEE

 	 
	 	
 	 



 









 






	 	 	 	 	 



EXHIBIT A




CARBONITE (CHINA) CO., LTD.




Incentive Units Agreement



Designation of Beneficiary




     The undersigned holder of Incentive Units issued under the Incentive Units Agreement dated
_______, 2011 with Carbonite (China) Co., Ltd. (“Carbonite China”) hereby designates the person or
persons listed below to receive any distribution payable under the Agreement in the event of the
death of the undersigned. This designation of beneficiary shall become effective upon its delivery
to Carbonite China prior to the death of the undersigned. This designation of beneficiary revokes
any designation(s) of beneficiary previously made by the undersigned. The undersigned reserves the
right to revoke this designation of beneficiary at any time without notice to any beneficiary.



	 	 	 

	 
	 	 
	Primary Beneficiary or Beneficiaries

	 	Percentage
	 
	 	 
	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	 


	 	 
	 
	 	 
	Secondary Beneficiary or Beneficiaries

	 	Percentage
	 
	 	 
	 


	 	 
	 
	 	 
	 


	 	 





(You may indicate the names not only of the primary beneficiaries but also the names of the
secondary beneficiaries who would receive the distribution in the event the primary beneficiary or
beneficiaries are not alive. If you do not make a designation or if the designated persons should
not be alive at the time of your death, the payment will be made to your estate. In the case of
each beneficiary, give his or her name, address and his relationship to you.)




	 	 	 	 	 
	 	 	 
	 	
 	 
	
(Date) 
	(Signature)