exhibit-105x2021equityin






  THE VITA COCO COMPANY, INC.  2021 INCENTIVE AWARD PLAN  ARTICLE I.  PURPOSE   The Plan’s purpose is to enhance the Company’s ability to attract, retain and motivate persons who  make (or are expected to make) important contributions to the Company by providing these individuals  with equity ownership opportunities and/or equity-linked compensatory opportunities and an ability to  participate in the long-term growth and success of the Company.  Capitalized terms used in the Plan are  defined in Article XI.  ARTICLE II.  ELIGIBILITY  Service Providers are eligible to be granted Awards under the Plan, subject to the limitations  described herein.  ARTICLE III.  ADMINISTRATION AND DELEGATION    Administration.  The Plan is administered by the Administrator.  The Administrator has  authority to determine which Service Providers receive Awards, grant Awards, amend the terms and  conditions of existing Awards and set Award terms and conditions, subject to the conditions and limitations  in the Plan.  The Administrator also has the authority to take all actions and make all determinations under  the Plan, to interpret the Plan and Award Agreements and to adopt, amend and repeal Plan administrative  rules, guidelines and practices as it deems advisable and appoint such agents as it shall deem appropriate  for the proper administration of the Plan.  The Administrator may correct defects and ambiguities, supply  omissions and reconcile inconsistencies in the Plan or any Award Agreement as it deems necessary or  appropriate to administer the Plan and any Awards.  The Administrator’s determinations under the Plan are  in its sole discretion and will be final and binding on all persons having or claiming any interest in the Plan  or any Award.   Appointment of Committees.  To the extent Applicable Laws permit, the Board or the  Administrator may delegate any or all of its powers under the Plan to one or more Committees or one or  more committees of directors or officers of the Company or any of its Subsidiaries; provided, however, that  in no event shall an officer of the Company be delegated the authority to grant Awards to, or amend Awards  held by, the following individuals: (a) individuals who are subject to Section 16 of the Exchange Act, or  (b) officers of the Company (or Directors) to whom authority to grant or amend Awards has been delegated  hereunder.  The Board or the Administrator, as applicable, may rescind any such delegation, abolish any  such Committee or committee and/or re-vest in itself any previously delegated authority at any time.   ARTICLE IV.  STOCK AVAILABLE FOR AWARDS   Number of Shares.  Subject to adjustment under Article VIII and the terms of this  Article IV, the maximum number of Shares that may be issued pursuant to Awards under the Plan shall be  equal to the Overall Share Limit.  As of the Effective Date, the Company will cease granting awards under  the Prior Plan; however, Prior Plan Awards will remain subject to the terms of the applicable Prior Plan.   





 






2    Shares issued under the Plan may consist of authorized but unissued Shares, Shares purchased on the open  market or treasury Shares.   Share Recycling.  If all or any part of an Award expires, lapses or is terminated, exchanged  for or settled in cash, surrendered, repurchased, canceled without having been fully exercised or forfeited,  in any case, in a manner that results in the Company acquiring Shares covered by the Award at a price not  greater than the price (as adjusted to reflect any Equity Restructuring) paid by the Participant for such  Shares or not issuing any Shares covered by the Award, the unused Shares covered by the Award will, as  applicable, become or again be available for Award grants under the Plan. In addition, Shares delivered  (either by actual delivery or attestation) to the Company by a Participant to satisfy the applicable exercise  or purchase price of an Award and/or to satisfy any applicable tax withholding obligation with respect to  an Award (including Shares retained by the Company from the Award being exercised or purchased and/or  creating the tax obligation) will, as applicable, become or again be available for Award grants under the  Plan.  The payment of Dividend Equivalents in cash in conjunction with any outstanding Awards shall not  count against the Overall Share Limit.  Notwithstanding anything to the contrary contained herein, the  following Shares shall not be added to the Shares authorized for grant under Section 4.1 and shall not be  available for future grants of Awards: (i) Shares subject to a Stock Appreciation Right that are not issued  in connection with the stock settlement of the Stock Appreciation Right on exercise thereof; and (ii) Shares  purchased on the open market by the Company with the cash proceeds from the exercise of Options.     Incentive Stock Option Limitations.  Notwithstanding anything to the contrary herein, no  more than 3,431,312 Shares may be issued pursuant to the exercise of Incentive Stock Options.    Substitute Awards.  In connection with an entity’s merger or consolidation with the  Company or the Company’s acquisition of an entity’s property or stock, the Administrator may grant  Substitute Awards for any options or other stock or stock-based awards granted before such merger or  consolidation by such entity or its affiliate in accordance with Applicable Laws.  Substitute Awards may  be granted on such terms as the Administrator deems appropriate, notwithstanding limitations on Awards  in the Plan.  Substitute Awards will not count against the Overall Share Limit (nor shall Shares subject to a  Substitute Award be added back to the Shares available for Awards under the Plan as provided in Section  4.2 above), except that Shares acquired by exercise of substitute Incentive Stock Options will count against  the maximum number of Shares that may be issued pursuant to the exercise of Incentive Stock Options  under the Plan.  Additionally, in the event that a company acquired by the Company or any Subsidiary or  with which the Company or any Subsidiary combines has shares available under a pre-existing plan  approved by stockholders and not adopted in contemplation of such acquisition or combination, the shares  available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate,  using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or  combination to determine the consideration payable to the holders of common stock of the entities party to  such acquisition or combination) may be used for Awards under the Plan and shall not count against the  Overall Share Limit (and Shares subject to such Awards shall not be added to the Shares available for  Awards under the Plan as provided in Section 4.2 above); provided that Awards using such available shares  shall not be made after the date awards or grants could have been made under the terms of the pre-existing  plan, absent the acquisition or combination, and shall only be made to individuals who were not Service  Providers prior to such acquisition or combination.   Non-Employee Director Compensation.  Notwithstanding any provision to the contrary in  the Plan, the Administrator may, pursuant to the exercise of its business judgment, taking into account such  factors, circumstances and considerations as it deems relevant from time to time, establish compensation  for non-employee Directors from time to time, subject to the limitations in the Plan and/or pursuant to a  written nondiscretionary formula established by the Administrator (the “Non-Employee Director Equity  Compensation Policy”).  The sum of any cash compensation, or other compensation, and the value  





 






3    (determined as of the grant date in accordance with Financial Accounting Standards Board Accounting  Standards Codification Topic 718, or any successor thereto) of Awards granted to a non-employee Director  as compensation for services as a non-employee Director during any fiscal year of the Company may not  exceed $750,000 (the “Director Limit”). The Administrator may make exceptions to the Director Limit in  extraordinary circumstances, as the Administrator may determine in its discretion, provided that the non- employee Director receiving such additional compensation may not participate in the decision to award  such compensation or in other contemporaneous compensation decisions involving non-employee  Directors.  ARTICLE V.  STOCK OPTIONS AND STOCK APPRECIATION RIGHTS   General.  The Administrator may grant Options or Stock Appreciation Rights to Service  Providers subject to the limitations in the Plan, including any limitations in the Plan that apply to Incentive  Stock Options.  A Stock Appreciation Right will entitle the Participant (or other person entitled to exercise  the Stock Appreciation Right) to receive from the Company upon exercise of the exercisable portion of the  Stock Appreciation Right an amount determined by multiplying the excess, if any, of the Fair Market Value  on the date of exercise over the exercise price per Share of the Stock Appreciation Right by the number of  Shares with respect to which the Stock Appreciation Right is exercised, subject to any limitations of the  Plan or that the Administrator may impose and payable in cash, Shares valued at Fair Market Value or a  combination of the two as the Administrator may determine or provide in the Award Agreement.     Exercise Price.  The Administrator will establish each Option’s and Stock Appreciation  Right’s exercise price and specify the exercise price in the Award Agreement.  The exercise price will not  be less than 100% of the Fair Market Value on the grant date of the Option (subject to Section 5.6) or Stock  Appreciation Right.  Notwithstanding the foregoing, in the case of an Option or a Stock Appreciation Right  that is a Substitute Award, the exercise price per share of the Shares subject to such Option or Stock  Appreciation Right, as applicable, may be less than the Fair Market Value per share on the date of grant;  provided that the exercise price of any Substitute Award shall be determined in accordance with the  applicable requirements of Sections 424 and 409A of the Code.   Duration.  Each Option or Stock Appreciation Right will be exercisable at such times and  as specified in the Award Agreement, provided that, subject to Section 5.6, the term of an Option or Stock  Appreciation Right will not exceed ten years.  Notwithstanding the foregoing and unless determined  otherwise by the Company, in the event that on the last business day of the term of an Option or Stock  Appreciation Right (other than an Incentive Stock Option) (a) the exercise of the Option or Stock  Appreciation Right is prohibited by Applicable Law, as determined by the Company, or (b) Shares may not  be purchased or sold by the applicable Participant due to any Company insider trading policy (including  blackout periods) or a “lock-up” agreement undertaken in connection with an issuance of securities by the  Company, the term of the Option or Stock Appreciation Right shall be extended until the date that is 30  days after the end of the legal prohibition, black-out period or lock-up agreement, as determined by the  Company; provided, however, in no event shall the extension last beyond the ten year term of the applicable  Option or Stock Appreciation Right. Unless otherwise determined by the Administrator in the Award  Agreement or by action of the Administrator following the grant of the Option or Stock Appreciation Right,  (i) no portion of an Option or Stock Appreciation Right which is unexercisable at a Participant’s  Termination of Service shall thereafter become exercisable and (ii) the portion of an Option or Stock  Appreciation Right that is unexercisable at a Participant’s Termination of Service shall automatically expire  on the date of such Termination of Service; provided, however, in the event such Termination of Service is  due to death or Disability, the portion of an Option or Stock Appreciation Right that is unexercisable at a  Participant’s Termination of Service shall automatically expire thirty (30) days following such Termination  of Service for death or Disability. Notwithstanding the foregoing, to the extent permitted under Applicable  





 






4    Laws, if the Participant, prior to the end of the term of an Option or Stock Appreciation Right, violates the  non-competition, non-solicitation, confidentiality or other similar restrictive covenant provisions of any  employment contract, confidentiality and nondisclosure agreement or other agreement between the  Participant and the Company or any Subsidiary, the right of the Participant and the Participant’s transferees  to exercise any Option or Stock Appreciation Right issued to the Participant shall terminate immediately  upon such violation, unless the Company otherwise determines.    Exercise.  Options and Stock Appreciation Rights may be exercised by delivering to the  Company a written notice of exercise, in a form the Administrator approves (which may be electronic),  signed by the person authorized to exercise the Option or Stock Appreciation Right, together with, as  applicable, payment in full (a) as specified in Section 5.5 for the number of Shares for which the Award is  exercised and (b) as specified in Section 9.5 for any applicable taxes.  Unless the Administrator otherwise  determines, an Option or Stock Appreciation Right may not be exercised for a fraction of a Share.   Payment Upon Exercise.  Subject to Section 10.8, any Company insider trading policy  (including blackout periods) and Applicable Laws, the exercise price of an Option must be paid by:    cash, wire transfer of immediately available funds or by check payable to the order  of the Company, provided that the Company may limit the use of one of the foregoing payment forms if  one or more of the payment forms below is permitted;   if there is a public market for Shares at the time of exercise, unless the Company  otherwise determines, (i) delivery (including electronically or telephonically to the extent permitted by the  Company) of an irrevocable and unconditional undertaking by a broker acceptable to the Company to  deliver promptly to the Company sufficient funds to pay the exercise price, or (ii) the Participant’s delivery  to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the  Company to deliver promptly to the Company cash or a check sufficient to pay the exercise price; provided  that such amount is paid to the Company at such time as may be required by the Administrator;     to the extent permitted by the Administrator, delivery (either by actual delivery or  attestation) of Shares owned by the Participant valued at their Fair Market Value;   to the extent permitted by the Administrator, surrendering Shares then issuable  upon the Option’s exercise valued at their Fair Market Value on the exercise date;    to the extent permitted by the Administrator, delivery of a promissory note or any  other property that the Administrator determines is good and valuable consideration; or   to the extent permitted by the Company, any combination of the above payment  forms approved by the Administrator.   Additional Terms of Incentive Stock Options.  The Administrator may grant Incentive  Stock Options only to employees of the Company, any of its present or future parent or subsidiary  corporations, as defined in Sections 424(e) or (f) of the Code, respectively, and any other entities the  employees of which are eligible to receive Incentive Stock Options under the Code.  If an Incentive Stock  Option is granted to a Greater Than 10% Stockholder, the exercise price will not be less than 110% of the  Fair Market Value on the Option’s grant date, and the term of the Option will not exceed five years.  All  Incentive Stock Options will be subject to and construed consistently with Section 422 of the Code.  By  accepting an Incentive Stock Option, the Participant agrees to give prompt notice to the Company of  dispositions or other transfers (other than in connection with a Change in Control) of Shares acquired under  the Option made within (a) two years from the grant date of the Option or (b) one year after the transfer of  





 






5    such Shares to the Participant, specifying the date of the disposition or other transfer and the amount the  Participant realized, in cash, other property, assumption of indebtedness or other consideration, in such  disposition or other transfer.  Neither the Company nor the Administrator will be liable to a Participant, or  any other party, if an Incentive Stock Option fails or ceases to qualify as an “incentive stock option” under  Section 422 of the Code.  Any Incentive Stock Option or portion thereof that fails to qualify as an “incentive  stock option” under Section 422 of the Code for any reason, including becoming exercisable with respect  to Shares having a fair market value exceeding the $100,000 limitation under Treasury Regulation  Section 1.422-4, will be a Non-Qualified Stock Option.  ARTICLE VI.  RESTRICTED STOCK; RESTRICTED STOCK UNITS   General.  The Administrator may grant Restricted Stock, or the right to purchase Restricted  Stock, to any Service Provider, subject to the Company’s right to repurchase all or part of such Shares at  their issue price or other stated or formula price from the Participant (or to require forfeiture of such Shares)  if conditions the Administrator specifies in the Award Agreement are not satisfied before the end of the  applicable restriction period or periods that the Administrator establishes for such Award.  In addition, the  Administrator may grant to Service Providers Restricted Stock Units, which may be subject to vesting and  forfeiture conditions during the applicable restriction period or periods, as set forth in an Award Agreement.    Restricted Stock.   Rights as Stockholders.  Subject to the Company’s right of repurchase as described  above, upon issuance of Restricted Stock, the Participant shall have, unless otherwise provided by the  Administrator, all of the rights of a stockholder with respect to said Shares, subject to the restrictions in the  Plan.   Dividends.  Participants holding Shares of Restricted Stock will be entitled to all  ordinary cash dividends paid with respect to such Shares, unless the Administrator provides otherwise in  the Award Agreement.  In addition, unless the Administrator provides otherwise, if any dividends or  distributions are paid in Shares, or consist of a dividend or distribution to holders of Common Stock of  property other than an ordinary cash dividend, the Shares or other property will be subject to the same  restrictions on transferability and forfeitability as the Shares of Restricted Stock with respect to which they  were paid.  Notwithstanding anything to the contrary herein, with respect to any award of Restricted Stock,  dividends which are paid to holders of Common Stock prior to vesting shall only be paid out to the  Participant holding such Restricted Stock to the extent that the vesting conditions are subsequently satisfied.   All such dividend payments will be made no later than March 15 of the calendar year following the calendar  year in which the right to the dividend payment becomes nonforfeitable.   Stock Certificates.  The Company may require that the Participant deposit in  escrow with the Company (or its designee) any stock certificates issued in respect of Shares of Restricted  Stock, together with a stock power endorsed in blank.   Restricted Stock Units.   Settlement.  The Administrator may provide that settlement of Restricted Stock  Units will occur upon or as soon as reasonably practicable after the Restricted Stock Units vest or will  instead be deferred, on a mandatory basis or at the Participant’s election, in a manner intended to comply  with Section 409A.  





 






6     Stockholder Rights. A Participant will have no rights of a stockholder with respect  to Shares subject to any Restricted Stock Unit unless and until the Shares are delivered in settlement of the  Restricted Stock Unit.  ARTICLE VII.  OTHER STOCK OR CASH BASED AWARDS; DIVIDEND EQUIVALENTS   7.1 Other Stock or Cash Based Awards.  Other Stock or Cash Based Awards may be granted  to Participants, including Awards entitling Participants to receive Shares to be delivered in the future and  including annual or other periodic or long-term cash bonus awards (whether based on specified  Performance Criteria or otherwise), in each case subject to any conditions and limitations in the Plan. Such  Other Stock or Cash Based Awards will also be available as a payment form in the settlement of other  Awards, as standalone payments and as payment in lieu of compensation to which a Participant is otherwise  entitled.  Other Stock or Cash Based Awards may be paid in Shares, cash or other property, as the  Administrator determines.    7.2 Dividend Equivalents.  A grant of Restricted Stock Units or Other Stock or Cash Based  Award may provide a Participant with the right to receive Dividend Equivalents, and no Dividend  Equivalents shall be payable with respect to Options or Stock Appreciation Rights.  Dividend Equivalents  may be paid currently or credited to an account for the Participant, settled in cash or Shares and subject to  the same restrictions on transferability and forfeitability as the Award with to which the Dividend  Equivalents are paid and subject to other terms and conditions as set forth in the Award Agreement.   Notwithstanding anything to the contrary herein, Dividend Equivalents with respect to an Award shall only  be paid out to the Participant to the extent that the vesting conditions applicable to the underlying Award  are satisfied.  All such Dividend Equivalent payments will be made no later than March 15 of the calendar  year following the calendar year in which the right to the Dividend Equivalent payment becomes  nonforfeitable in accordance with the foregoing, unless otherwise determined by the Administrator.  ARTICLE VIII.  ADJUSTMENTS FOR CHANGES IN COMMON STOCK   AND CERTAIN OTHER EVENTS   Equity Restructuring.  In connection with any Equity Restructuring, notwithstanding  anything to the contrary in this Article VIII, the Administrator will equitably adjust each outstanding Award  as it deems appropriate to reflect the Equity Restructuring, which may include adjusting the number and  type of securities subject to each outstanding Award and/or the Award’s exercise price or grant price (if  applicable), granting new Awards to Participants, and making a cash payment to Participants.  The  adjustments provided under this Section 8.1 will be nondiscretionary and final and binding on the affected  Participant and the Company; provided that the Administrator will determine whether an adjustment is  equitable.   Corporate Transactions.  In the event of any dividend or other distribution (whether in the  form of cash, Common Stock, other securities, or other property), reorganization, merger, consolidation,  combination, amalgamation, repurchase, recapitalization, liquidation, dissolution, or sale, transfer,  exchange or other disposition of all or substantially all of the assets of the Company, or sale or exchange  of Common Stock or other securities of the Company, Change in Control, issuance of warrants or other  rights to purchase Common Stock or other securities of the Company, other similar corporate transaction  or event, other unusual or nonrecurring transaction or event affecting the Company or its financial  statements or any change in any Applicable Laws or accounting principles, the Administrator, on such terms  and conditions as it deems appropriate, either by the terms of the Award or by action taken prior to the  occurrence of such transaction or event (except that action to give effect to a change in Applicable Law or  





 






7    accounting principles may be made within a reasonable period of time after such change) and either  automatically or upon the Participant’s request, is hereby authorized to take any one or more of the  following actions whenever the Administrator determines that such action is appropriate in order to (x)  prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made  available under the Plan or with respect to any Award granted or issued under the Plan, (y) facilitate such  transaction or event or (z) give effect to such changes in Applicable Laws or accounting principles:     To provide for the cancellation of any such Award in exchange for either an  amount of cash or other property with a value equal to the amount that could have been obtained upon the  exercise or settlement of the vested portion of such Award or realization of the Participant’s rights under  the vested portion of such Award, as applicable; provided that, if the amount that could have been obtained  upon the exercise or settlement of the vested portion of such Award or realization of the Participant’s rights,  in any case, is equal to or less than zero, then the Award may be terminated without payment;     To provide that such Award shall vest and, to the extent applicable, be exercisable  as to all Shares covered thereby, notwithstanding anything to the contrary in the Plan or the provisions of  such Award;   To provide that such Award be assumed by the successor or survivor corporation,  or a parent or subsidiary thereof, or shall be substituted for by awards covering the stock of the successor  or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number  and kind of shares and/or applicable exercise or purchase price, in all cases, as determined by the  Administrator;     To make adjustments in the number and type of Shares (or other securities or  property) subject to outstanding Awards and/or with respect to which Awards may be granted under the  Plan (including, but not limited to, adjustments of the limitations in Article IV on the maximum number  and kind of shares which may be issued, including pursuant to any Non-Employee Director Compensation  Policy) and/or in the terms and conditions of (including the grant or exercise price or applicable  performance goals), and the criteria included in, outstanding Awards;     To replace such Award with other rights or property selected by the Administrator;  and/or   To provide that the Award will terminate and cannot vest, be exercised or become  payable after the applicable event.   Effect of a Change in Control.     Notwithstanding the provisions of Section 8.2, if a Change in Control occurs and  a Participant’s Award is not continued, converted, assumed or replaced with a substantially similar award  by (i) the Company, or (ii) a successor entity or its parent or subsidiary (an “Assumption”), and provided  that the Participant has not had a Termination of Service, then, immediately prior to the Change in Control,  such Award shall become fully vested, exercisable and/or payable, as applicable, and all forfeiture,  repurchase and other restrictions on such Award shall lapse, in which case, such Award shall be canceled  upon the consummation of the Change in Control in exchange for the right to receive the Change in Control  consideration payable to other holders of Common Stock (A) which may be on such terms and conditions  as apply generally to holders of Common Stock under the Change in Control documents (including, without  limitation, any escrow, earn-out or other deferred consideration provisions) or such other terms and  conditions as the Administrator may provide, and (B) determined by reference to the number of Shares  subject to such Award and net of any applicable exercise price; provided that to the extent that any Award  





 






8    constitutes “nonqualified deferred compensation” that may not be paid upon the Change in Control under  Section 409A without the imposition of taxes thereon under Section 409A (including payments as a result  of any termination of “nonqualified deferred compensation” Awards permitted under Section 409A in  connection with a Change in Control), the timing of such payments shall be governed by the applicable  Award Agreement (subject to any deferred consideration provisions applicable under the Change in Control  documents); and provided, further, that if the amount to which the Participant would be entitled upon the  settlement or exercise of such Award at the time of the Change in Control is equal to or less than zero, then  such Award may be terminated without payment. The Administrator shall determine whether an  Assumption of an Award has occurred in connection with a Change in Control.   If a Change in Control occurs and a Participant’s Awards are assumed pursuant to  Section 8.3(a), and, on or within 12 months following such Change in Control, the Company or its successor  entity or a parent or subsidiary thereof terminates such Participant’s employment or service with such entity  for any reason (other than for Cause and other than as a result of such Participant’s death or Disability),  then (i) such Participant’s remaining unvested Awards (including any Substitute Awards) shall become  fully vested, exercisable and/or payable, as applicable, and all forfeiture, repurchase and other restrictions  on such Awards (including any Substitute Awards) shall lapse, on the date of such Termination of Service,  and (ii) with respect to Options then held by such Participant, the Participant shall have a period of 6 months  following the date of such Termination of Service (or such longer period as may be set forth in the  applicable Award Agreement(s)) to exercise such Options, to the extent that he or she was otherwise entitled  to exercise such Options on the date of such Termination of Service (but in no event shall any Option remain  exercisable beyond its outside expiration date).   Administrative Stand Still.  In the event of any pending stock dividend, stock split,  combination or exchange of shares, merger, consolidation or other distribution (other than normal cash  dividends) of Company assets to stockholders, or any other extraordinary transaction or change affecting  the Shares or the Share price, including any Equity Restructuring or any securities offering or other similar  transaction, for administrative convenience, the Administrator may refuse to permit the exercise of any  Award for up to 60 days before or after such transaction.   General.  Except as expressly provided in the Plan or the Administrator’s action under the  Plan, no Participant will have any rights due to any subdivision or consolidation of Shares of any class,  dividend payment, increase or decrease in the number of Shares of any class or dissolution, liquidation,  merger, or consolidation of the Company or other corporation.  Except as expressly provided with respect  to an Equity Restructuring under Section 8.1 or the Administrator’s action under the Plan, no issuance by  the Company of Shares of any class, or securities convertible into Shares of any class, will affect, and no  adjustment will be made regarding, the number of Shares subject to an Award or the Award’s grant price  or exercise price (if applicable).  The existence of the Plan, any Award Agreements and the Awards granted  hereunder will not affect or restrict in any way the Company’s right or power to make or authorize (a) any  adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its  business, (b) any merger, consolidation dissolution or liquidation of the Company or sale of Company assets  or (c) any sale or issuance of securities, including securities with rights superior to those of the Shares or  securities convertible into or exchangeable for Shares.  The Administrator may treat Participants and  Awards (or portions thereof) differently under this Article VIII.  ARTICLE IX.  GENERAL PROVISIONS APPLICABLE TO AWARDS    Transferability.  Except as the Administrator may determine or provide in an Award  Agreement or otherwise for Awards other than Incentive Stock Options, Awards may not be sold, assigned,  transferred, pledged or otherwise encumbered, either voluntarily or by operation of law, except for certain  





 






9    beneficiary designations, by will or the laws of descent and distribution, or, subject to the Administrator’s  consent, pursuant to a domestic relations order, and, during the life of the Participant, will be exercisable  only by the Participant.  Any permitted transfer of an Award hereunder shall be without consideration,  except as required by Applicable Law, and such Award transferred to a permitted transferee shall continue  to be subject to all the terms and conditions of the Award as applicable to the original Participant and the  Participant or transferor and the receiving permitted transferee shall execute any and all documents  requested by the Administrator.  References to a Participant, to the extent relevant in the context, will  include references to a Participant’s authorized transferee that the Administrator specifically approves.   Documentation.  Each Award will be evidenced in an Award Agreement, which may be  written or electronic, as the Administrator determines. The Award Agreement will contain the terms and  conditions applicable to an Award.  Each Award may contain terms and conditions in addition to those set  forth in the Plan.    Discretion.  Except as the Plan otherwise provides, each Award may be made alone or in  addition or in relation to any other Award.  The terms of each Award to a Participant need not be identical,  and the Administrator need not treat Participants or Awards (or portions thereof) uniformly.    Change in Status.  The Administrator will determine how the disability, death, retirement,  an authorized leave of absence or any other change or purported change in a Participant’s Service Provider  status affects an Award and the extent to which, and the period during which, the Participant, the  Participant’s legal representative, conservator, guardian or Designated Beneficiary may exercise rights  under the Award, if applicable.   Withholding.  Each Participant must pay the Company, or make provision satisfactory to  the Administrator for payment of, any taxes required by Applicable Law to be withheld in connection with  such Participant’s Awards by the date of the event creating the tax liability.  The Company may deduct an  amount sufficient to satisfy such tax obligations based on the applicable statutory withholding rates (or such  other rate as may be determined by the Company after considering any accounting consequences or costs)  from any payment of any kind otherwise due to a Participant.  In the absence of a contrary determination  by the Company (or, with respect to withholding pursuant to clause (b) below with respect to Awards held  by individuals subject to Section 16 of the Exchange Act, a contrary determination by the Administrator),  all tax withholding obligations will be calculated based on the maximum applicable statutory withholding  rates.  Subject to Section 10.8 and any Company insider trading policy (including blackout periods),  Participants may satisfy such tax obligations (a) in cash, by wire transfer of immediately available funds,  by check made payable to the order of the Company, provided that the Company may limit the use of the  foregoing payment forms if one or more of the payment forms below is permitted, (b) to the extent permitted  by the Administrator, in whole or in part by delivery of Shares, including Shares delivered by attestation  and Shares retained from the Award creating the tax obligation, valued at their Fair Market Value on the  date of delivery, (c) if there is a public market for Shares at the time the tax obligations are satisfied, unless  the Company otherwise determines, (i) delivery (including electronically or telephonically to the extent  permitted by the Company) of an irrevocable and unconditional undertaking by a broker acceptable to the  Company to deliver promptly to the Company sufficient funds to satisfy the tax obligations, or (ii) delivery  by the Participant to the Company of a copy of irrevocable and unconditional instructions to a broker  acceptable to the Company to deliver promptly to the Company cash or a check sufficient to satisfy the tax  withholding; provided that such amount is paid to the Company at such time as may be required by the  Administrator, or (d) to the extent permitted by the Company, any combination of the foregoing payment  forms approved by the Administrator. Notwithstanding any other provision of the Plan, the number of  Shares which may be so delivered or retained pursuant to clause (b) of the immediately preceding sentence  shall be limited to the number of Shares which have a Fair Market Value on the date of delivery or retention  no greater than the aggregate amount of such liabilities based on the maximum individual statutory tax rate  





 






10    in the applicable jurisdiction at the time of such withholding (or such other rate as may be required to avoid  the liability classification of the applicable Award under generally accepted accounting principles in the  United States of America); provided, however, to the extent such Shares were acquired by Participant from  the Company as compensation, the Shares must have been held for the minimum period required by  applicable accounting rules to avoid a charge to the Company’s earnings for financial reporting purposes;  provided, further, that, any such Shares delivered or retained shall be rounded up to the nearest whole Share  to the extent rounding up to the nearest whole Share does not result in the liability classification of the  applicable Award under generally accepted accounting principles in the United States of America.  If any  tax withholding obligation will be satisfied under clause (b) above by the Company’s retention of Shares  from the Award creating the tax obligation and there is a public market for Shares at the time the tax  obligation is satisfied, the Company may elect to instruct any brokerage firm determined acceptable to the  Company for such purpose to sell on the applicable Participant’s behalf some or all of the Shares retained  and to remit the proceeds of the sale to the Company or its designee, and each Participant’s acceptance of  an Award under the Plan will constitute the Participant’s authorization to the Company and instruction and  authorization to such brokerage firm to complete the transactions described in this sentence.    Amendment of Award.  The Administrator may amend, modify or terminate any  outstanding Award, including by substituting another Award of the same or a different type, changing the  exercise or settlement date, and converting an Incentive Stock Option to a Non-Qualified Stock Option.   The Participant’s consent to such action will be required unless (a) the action, taking into account any  related action, does not materially and adversely affect the Participant’s rights under the Award, or (b) the  change is permitted under Article VIII or pursuant to Section 10.6.   Conditions on Delivery of Stock.  The Company will not be obligated to deliver any Shares  under the Plan or remove restrictions from Shares previously delivered under the Plan until (a) all Award  conditions have been met or removed to the Company’s satisfaction, (b) as determined by the Company,  all other legal matters regarding the issuance and delivery of such Shares have been satisfied, including any  applicable securities laws and stock exchange or stock market rules and regulations, and (c) the Participant  has executed and delivered to the Company such representations or agreements as the Administrator deems  necessary or appropriate to satisfy any Applicable Laws.  The Company’s inability to obtain authority from  any regulatory body having jurisdiction, which the Administrator determines is necessary to the lawful  issuance and sale of any securities, will relieve the Company of any liability for failing to issue or sell such  Shares as to which such requisite authority has not been obtained.   Acceleration.  The Administrator may at any time provide that any Award will become  immediately vested and fully or partially exercisable, free of some or all restrictions or conditions, or  otherwise fully or partially realizable.   Cash Settlement.  Without limiting the generality of any other provision of the Plan, the  Administrator may provide, in an Award Agreement or subsequent to the grant of an Award, in its  discretion, that any Award may be settled in cash, Shares or a combination thereof.   Broker-Assisted Sales.  In the event of a broker-assisted sale of Shares in connection with  the payment of amounts owed by a Participant under or with respect to the Plan or Awards, including  amounts to be paid under the final sentence of Section 9.5: (a) any Shares to be sold through the broker- assisted sale will be sold on the day the payment first becomes due, or as soon thereafter as practicable; (b)  such Shares may be sold as part of a block trade with other Participants in the Plan in which all Participants  receive an average price; (c) the applicable Participant will be responsible for all broker’s fees and other  costs of sale, and by accepting an Award, each Participant agrees to indemnify and hold the Company  harmless from any losses, costs, damages, or expenses relating to any such sale; (d) to the extent the  Company or its designee receives proceeds of such sale that exceed the amount owed, the Company will  





 






11    pay such excess in cash to the applicable Participant as soon as reasonably practicable; (e) the Company  and its designees are under no obligation to arrange for such sale at any particular price; and (f) in the event  the proceeds of such sale are insufficient to satisfy the Participant’s applicable obligation, the Participant  may be required to pay immediately upon demand to the Company or its designee an amount in cash  sufficient to satisfy any remaining portion of the Participant’s obligation.   ARTICLE X.  MISCELLANEOUS    No Right to Employment or Other Status.  No person will have any claim or right to be  granted an Award, and the grant of an Award will not be construed as giving a Participant the right to  continued employment or any other relationship with the Company or any Subsidiary.  The Company and   its Subsidiaries expressly reserve the right at any time to dismiss or otherwise terminate its relationship  with a Participant free from any liability or claim under the Plan or any Award, except as expressly provided  in an Award Agreement or in the Plan.   No Rights as Stockholder; Certificates.  Subject to the Award Agreement, no Participant  or Designated Beneficiary will have any rights as a stockholder with respect to any Shares to be distributed  under an Award until becoming the record holder of such Shares.  Notwithstanding any other provision of  the Plan, unless the Administrator otherwise determines or Applicable Laws require, the Company will not  be required to deliver to any Participant certificates evidencing Shares issued in connection with any Award  and instead such Shares may be recorded in the books of the Company (or, as applicable, its transfer agent  or stock plan administrator).  The Company may place legends on stock certificates issued under the Plan  that the Administrator deems necessary or appropriate to comply with Applicable Laws.   Effective Date and Term of Plan.  Unless earlier terminated by the Board, the Plan will  become effective on the day prior to the Public Trading Date (the “Effective Date”) and will remain in  effect until the tenth anniversary of the earlier of (a) the date the Board adopted the Plan or (b) the date the  Company’s stockholders approved the Plan, but Awards previously granted may extend beyond that date  in accordance with the Plan.  Notwithstanding anything to the contrary in the Plan, an Incentive Stock  Option may not be granted under the Plan after 10 years from the earlier of (i) the date the Board adopted  the Plan or (ii) the date the Company’s stockholders approved the Plan, but Awards previously granted may  extend beyond that date in accordance with the Plan.  If the Plan is not approved by the Company’s  stockholders, the Plan will not become effective, no Awards will be granted under the Plan and the Prior  Plan (to the extent in effect as of the Effective Date) will continue in full force and effect in accordance  with its terms.    Amendment and Termination of Plan.  The Board may amend, suspend or terminate the  Plan at any time; provided that no amendment, other than an increase to the Overall Share Limit, may  materially and adversely affect any Award outstanding at the time of such amendment without the affected  Participant’s consent.  No Awards may be granted under the Plan during any suspension period or after the  Plan’s termination.  Awards outstanding at the time of any Plan suspension or termination will continue to  be governed by the Plan and the Award Agreement, as in effect before such suspension or termination.  The  Board will obtain stockholder approval of any Plan amendment to the extent necessary to comply with  Applicable Laws. In addition, the Board may delegate to a Committee the authority to amend the Plan or  any portion thereof at any time to (a) cure any ambiguity or to correct or supplement any provision of the  Plan which may be defective or inconsistent with any other provision of the Plan or (b) make any other  provisions in regard to matters or questions arising under the Plan which the Committee may deem  necessary or desirable and which, in the judgment of the Committee, is not material.    





 






12     Provisions for Foreign Participants.  The Administrator may modify Awards granted to  Participants who are foreign nationals or employed outside the United States or establish subplans or  procedures under the Plan to address differences in laws, rules, regulations or customs of such foreign  jurisdictions with respect to tax, securities, currency, employee benefit or other matters; provided, however,  that no such subplans and/or modifications shall increase the Overall Share Limit or the Director Limit.   Section 409A.     General.  The Company intends that all Awards be structured to comply with, or  be exempt from, Section 409A, such that no adverse tax consequences, interest, or penalties under  Section 409A apply.  Notwithstanding anything in the Plan or any Award Agreement to the contrary, the  Administrator may, without a Participant’s consent, amend this Plan or Awards, adopt policies and  procedures, or take any other actions (including amendments, policies, procedures and retroactive actions)  as are necessary or appropriate to preserve the intended tax treatment of Awards, including any such actions  intended to (i) exempt this Plan or any Award from Section 409A, or (ii) comply with Section 409A,  including regulations, guidance, compliance programs and other interpretative authority that may be issued  after an Award’s grant date.  The Company makes no representations or warranties as to an Award’s tax  treatment under Section 409A or otherwise.  The Company will have no obligation under this Section 10.6  or otherwise to avoid the taxes, penalties or interest under Section 409A with respect to any Award and will  have no liability to any Participant or any other person if any Award, compensation or other benefits under  the Plan are determined to constitute noncompliant “nonqualified deferred compensation” subject to taxes,  penalties or interest under Section 409A.   Separation from Service.  If an Award constitutes “nonqualified deferred  compensation” under Section 409A, any payment or settlement of such Award upon a termination of a  Participant’s Service Provider relationship will, to the extent necessary to avoid taxes under Section 409A,  be made only upon the Participant’s “separation from service” (within the meaning of Section 409A),  whether such “separation from service” occurs upon or after the termination of the Participant’s Service  Provider relationship.  For purposes of this Plan or any Award Agreement relating to any such payments or  benefits, references to a “termination,” “termination of employment” or like terms means a “separation  from service.”   Payments to Specified Employees.  Notwithstanding any contrary provision in the  Plan or any Award Agreement, any payment(s) of “nonqualified deferred compensation” required to be  made under an Award to a “specified employee” (as defined under Section 409A and as the Administrator  determines) due to his or her “separation from service” will, to the extent necessary to avoid taxes under  Section 409A(a)(2)(B)(i) of the Code, be delayed for the six-month period immediately following such  “separation from service” (or, if earlier, until the specified employee’s death) and will instead be paid (as  set forth in the Award Agreement) on the day immediately following such six-month period or as soon as  administratively practicable thereafter (without interest).  Any payments of “nonqualified deferred  compensation” under such Award payable more than six months following the Participant’s “separation  from service” will be paid at the time or times the payments are otherwise scheduled to be made.   Limitations on Liability.  Notwithstanding any other provisions of the Plan, no individual  acting as a director, officer, other employee or agent of the Company or any Subsidiary will be liable to any  Participant, former Participant, spouse, beneficiary, or any other person for any claim, loss, liability, or  expense incurred in connection with the Plan or any Award, and such individual will not be personally  liable with respect to the Plan because of any contract or other instrument executed in his or her capacity  as an Administrator, director, officer, other employee or agent of the Company or any Subsidiary.  The  Company will indemnify and hold harmless each director, officer, other employee and agent of the  Company or any Subsidiary that has been or will be granted or delegated any duty or power relating to the  





 






13    Plan’s administration or interpretation, against any cost or expense (including attorneys’ fees) or liability  (including any sum paid in settlement of a claim with the Administrator’s approval) arising from any act or  omission concerning this Plan unless arising from such person’s own fraud or bad faith.   Lock-Up Period.  The Company may, at the request of any underwriter representative or  otherwise, in connection with registering the offering of any Company securities under the Securities Act,  prohibit Participants from, directly or indirectly, selling or otherwise transferring any Shares or other  Company securities during a period of up to 180 days following the effective date of a Company registration  statement filed under the Securities Act, or such longer period as determined by the underwriter.   Data Privacy.  As a condition for receiving any Award, each Participant explicitly and  unambiguously consents to the collection, use and transfer, in electronic or other form, of personal data as  described in this section by and among the Company and any Subsidiary and any of their respective  affiliates exclusively for implementing, administering and managing the Participant’s participation in the  Plan.  The Company and the Subsidiaries and their respective affiliates may hold certain personal  information about a Participant, including the Participant’s name, address and telephone number; birthdate;  social security, insurance number or other identification number; salary; nationality; job title(s); any Shares  held in the Company or any Subsidiaries or any of their respective affiliates; and Award details, to  implement, manage and administer the Plan and Awards (the “Data”).  The Company and the Subsidiaries  and their respective affiliates may transfer the Data amongst themselves as necessary to implement,  administer and manage a Participant’s participation in the Plan, and the Company and the Subsidiaries and  their respective affiliates may transfer the Data to third parties assisting the Company with Plan  implementation, administration and management.  These recipients may be located in the Participant’s  country, or elsewhere, and the Participant’s country may have different data privacy laws and protections  than the recipients’ country.  By accepting an Award, each Participant authorizes such recipients to receive,  possess, use, retain and transfer the Data, in electronic or other form, to implement, administer and manage  the Participant’s participation in the Plan, including any required Data transfer to a broker or other third  party with whom the Company, any Subsidiary or the Participant may elect to deposit any Shares.  The  Data related to a Participant will be held only as long as necessary to implement, administer, and manage  the Participant’s participation in the Plan.  A Participant may, at any time, view the Data that the Company  and any Subsidiary hold regarding such Participant, request additional information about the storage and  processing of the Data regarding such Participant, recommend any necessary corrections to the Data  regarding the Participant or refuse or withdraw the consents in this Section 10.9 in writing, without cost,  by contacting the local human resources representative.  If the Participant refuses or withdraws the consents  in this Section 10.9, the Company may cancel Participant’s ability to participate in the Plan and, in the  Administrator’s discretion, the Participant may forfeit any outstanding Awards.  For more information on  the consequences of refusing or withdrawing consent, Participants may contact their local human resources  representative.   Severability.  If any portion of the Plan or any action taken under it is held illegal or invalid  for any reason, the illegality or invalidity will not affect the remaining parts of the Plan, and the Plan will  be construed and enforced as if the illegal or invalid provisions had been excluded, and the illegal or invalid  action will be null and void.   Governing Documents.  If any contradiction occurs between the Plan and any Award  Agreement or other written agreement between a Participant and the Company (or any Subsidiary) that the  Administrator has approved, the Plan will govern, unless it is expressly specified in such Award Agreement  or other written document that a specific provision of the Plan will not apply.  





 






14     Governing Law.  The Plan and all Awards will be governed by and interpreted in  accordance with the laws of the State of Delaware, disregarding any state’s choice-of-law principles  requiring the application of a jurisdiction’s laws other than the State of Delaware.   Claw-back Provisions.  All Awards (including, without limitation, any proceeds, gains or  other economic benefit actually or constructively received by Participant upon any receipt or exercise of  any Award or upon the receipt or resale of any Shares underlying the Award) shall be subject to the  provisions of any claw-back policy implemented by the Company, including, without limitation, any claw- back policy adopted to comply with Applicable Laws (including the Dodd-Frank Wall Street Reform and  Consumer Protection Act and any rules or regulations promulgated thereunder) as and to the extent set forth  in such claw-back policy or the Award Agreement.   Titles and Headings.  The titles and headings in the Plan are for convenience of reference  only and, if any conflict, the Plan’s text, rather than such titles or headings, will control.   Conformity to Securities Laws.  Participant acknowledges that the Plan is intended to  conform to the extent necessary with Applicable Laws.  Notwithstanding anything herein to the contrary,  the Plan and all Awards will be administered only in conformance with Applicable Laws.  To the extent  Applicable Laws permit, the Plan and all Award Agreements will be deemed amended as necessary to  conform to Applicable Laws.   Relationship to Other Benefits.  No payment under the Plan will be taken into account in  determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare  or other benefit plan of the Company or any Subsidiary except as expressly provided in writing in such  other plan or an agreement thereunder.  ARTICLE XI.  DEFINITIONS   As used in the Plan, the following words and phrases will have the following meanings:  11.1 “Administrator” means the Board or a Committee to the extent that the Board’s powers or  authority under the Plan have been delegated to such Committee. Notwithstanding the foregoing, the full  Board, acting by a majority of its members in office, shall conduct the general administration of the Plan  with respect to Awards granted to Directors and, with respect to such Awards, the term “Administrator” as  used in the Plan shall be deemed to refer to the Board.  11.2 “Applicable Laws” means the requirements relating to the administration of equity  incentive plans under U.S. federal and state securities, tax and other applicable laws, rules and regulations,  the applicable rules of any stock exchange or quotation system on which the Common Stock is listed or  quoted and the applicable laws and rules of any foreign country or other jurisdiction where Awards are  granted.  11.3 “Award” means, individually or collectively, a grant under the Plan of Options, Stock  Appreciation Rights, Restricted Stock, Restricted Stock Units, Dividend Equivalents, or Other Stock or  Cash Based Awards.  11.4 “Award Agreement” means a written agreement evidencing an Award, which may be  electronic, that contains such terms and conditions as the Administrator determines, consistent with and  subject to the terms and conditions of the Plan.  





 






15    11.5 “Board” means the Board of Directors of the Company.  11.6 “Cause” with respect to a Participant, shall mean “Cause” (or any term of similar effect)  as defined in such Participant’s employment or service agreement with the Company or an affiliate thereof  if such an agreement exists and contains a definition of Cause (or term of similar effect), or, if no such  agreement exists or such agreement does not contain a definition of Cause (or term of similar effect), then  “Cause” shall mean one or more of the following: (a) repeated and gross failure to perform Participant’s  material duties, after written notice of such performance has been given to Participant with 30 days to cure  such nonperformance; (b) use of illegal drugs by Participant; (c) commission of a felony, a crime of moral  turpitude or a misdemeanor involving fraud or dishonesty (for avoidance of doubt, a single driving while  intoxicated (or other similar charge) shall not be considered a felony or crime of moral turpitude); (d) the  perpetration of any act of fraud or material dishonesty against or affecting the Company, any of its affiliates,  or any customer, agent or employee thereof; (e) material breach of fiduciary duty or material breach of this  Agreement, after written notice of such breach has been given to Participant and, to the event such breach  is curable, within 30 days to cure such breach; (f) repeated insolent or abusive conduct in the workplace,  including but not limited to, harassment of others of a racial or sexual nature after notice of such behavior;  (g) taking any action which is intended to harm or disparage the Company or its affiliates, or their  reputations, or which would reasonably be expected to lead to unwanted or unfavorable publicity to the  Company or its affiliates; (h) engaging in any act of material self-dealing without prior notice to and consent  by the Board; (i) repeated violations of the Company’s code of conduct or similar such policy; or (j)  violation of the non-competition, non-solicitation, confidentiality or other similar restrictive covenant  provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement  between the Participant and the Company or any Subsidiary.  11.7 “Change in Control” means and includes each of the following:   (a) A transaction or series of transactions (other than an offering of Common Stock to  the general public through a registration statement filed with the Securities and Exchange Commission or  a transaction or series of transactions that meets the requirements of clauses (i) and (ii) of subsection (c)  below) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and  14(d)(2) of the Exchange Act) (other than the Company, any of the Subsidiaries, an employee benefit plan  maintained by the Company or any of the Subsidiaries or a “person” that, prior to such transaction, directly  or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly  acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of  the Company possessing more than 50% of the total combined voting power of the Company’s securities  outstanding immediately after such acquisition; or  (b) During any period of 24 consecutive months, individuals who, at the beginning of  such period, constitute the Board together with any new Director(s) (other than a Director designated by a  person who shall have entered into an agreement with the Company to effect a transaction described in  subsections (a) or (c)) whose election by the Board or nomination for election by the Company’s  stockholders was approved by a vote of at least two-thirds of the Directors then still in office who either  were Directors at the beginning of the 24-month period or whose election or nomination for election was  previously so approved, cease for any reason to constitute a majority thereof; or  (c) The consummation by the Company (whether directly involving the Company or  indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation,  reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the  Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets  or stock of another entity, in each case other than a transaction:  





 






16    (i) which results in the Company’s voting securities outstanding immediately  before the transaction continuing to represent (either by remaining outstanding or by being converted into  voting securities of the Company or the person that, as a result of the transaction, controls, directly or  indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or  otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”))  directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding  voting securities immediately after the transaction, and  (ii) after which no person or group beneficially owns voting securities  representing 50% or more of the combined voting power of the Successor Entity; provided, however, that  no person or group shall be treated for purposes of this clause (ii) as beneficially owning 50% or more of  the combined voting power of the Successor Entity solely as a result of the voting power held in the  Company prior to the consummation of the transaction.    Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to  any Award (or portion of any Award) that provides for the deferral of compensation that is subject to  Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the  transaction or event described in subsection (a), (b) or (c) with respect to such Award (or portion thereof)  shall only constitute a Change in Control for purposes of the payment timing of such Award if such  transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A- 3(i)(5).  The Administrator shall have full and final authority, which shall be exercised in its discretion, to  determine conclusively whether a Change in Control has occurred pursuant to the above definition, the date  of the occurrence of such Change in Control and any incidental matters relating thereto; provided that any  exercise of authority in conjunction with a determination of whether a Change in Control is a “change in  control event” as defined in Treasury Regulation Section 1.409A-3(i)(5) shall be consistent with such  regulation.  11.8 “Code” means the Internal Revenue Code of 1986, as amended, and the regulations issued  thereunder.  11.9 “Committee” means one or more committees or subcommittees of the Board, which may  include one or more directors or executive officers of the Company, to the extent Applicable Laws permit.   To the extent required to comply with the provisions of Rule 16b-3, it is intended that each member of the  Committee will be, at the time the Committee takes any action with respect to an Award that is subject to  Rule 16b-3, a “non-employee director” within the meaning of Rule 16b-3; however, a Committee member’s  failure to qualify as a “non-employee director” within the meaning of Rule 16b-3 will not invalidate any  Award granted by the Committee that is otherwise validly granted under the Plan.    11.10 “Common Stock” means the Class A common stock of the Company.   11.11 “Company” means All Market Inc., a Delaware corporation, or any successor.  11.12  “Consultant” means any person, including any adviser, engaged by the Company or any  Subsidiary to render services to such entity if the consultant or adviser: (a) renders bona fide services to the  Company or the Subsidiary; (b) renders services not in connection with the offer or sale of securities in a  capital-raising transaction and does not directly or indirectly promote or maintain a market for the  Company’s securities; and (c) is a natural person.  





 






17    11.13 “Designated Beneficiary” means the beneficiary or beneficiaries the Participant  designates, in a manner the Administrator determines, to receive amounts due or exercise the Participant’s  rights if the Participant dies or becomes incapacitated.  Without a Participant’s effective designation,  “Designated Beneficiary” will mean the Participant’s estate.  11.14 “Director” means a Board member.  11.15 “Disability” means that the Participant is unable to engage in any substantial gainful  activity by reason of any medically determinable physical or mental impairment that can be expected to  result in death or can be expected to last for a continuous period of not less than 12 months.   11.16 “Dividend Equivalents” means a right granted to a Participant under the Plan to receive  the equivalent value (in cash or Shares) of dividends paid on Shares.  11.17 “Employee” means any employee of the Company or its Subsidiaries.  11.18 “Equity Restructuring” means, as determined by the Administrator, a non-reciprocal  transaction between the Company and its stockholders, such as a stock dividend, stock split, spin-off or  recapitalization through a large, nonrecurring cash dividend, or other large, nonrecurring cash dividend,  that affects the Shares (or other securities of the Company) or the share price of Common Stock (or other  securities of the Company) and causes a change in the per share value of the Common Stock underlying  outstanding Awards.  11.19 “Exchange Act” means the Securities Exchange Act of 1934, as amended.  11.20 “Fair Market Value” means, as of any date, the value of a share of Common Stock  determined as follows: (a) if the Common Stock is listed on any established stock exchange, its Fair Market  Value will be the closing sales price for such Common Stock as quoted on such exchange for such date, or  if no sale occurred on such date, the last day preceding such date during which a sale occurred, as reported  in The Wall Street Journal or another source the Administrator deems reliable; (b) if the Common Stock is  not traded on a stock exchange but is quoted on a national market or other quotation system, the closing  sales price on such date, or if no sales occurred on such date, then on the last date preceding such date  during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator  deems reliable; or (c) without an established market for the Common Stock, the Administrator will  determine the Fair Market Value in its discretion.    Notwithstanding the foregoing, with respect to any Award granted on the pricing date of the  Company’s initial public offering, the Fair Market Value shall mean the initial public offering price of a  Share as set forth in the Company’s final prospectus relating to its initial public offering filed with the  Securities and Exchange Commission.   11.21 “Greater Than 10% Stockholder” means an individual then owning (within the meaning  of Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of stock of  the Company or its parent or subsidiary corporation, as defined in Section 424(e) and (f) of the Code,  respectively.  11.22 “Incentive Stock Option” means an Option intended to qualify as an “incentive stock  option” as defined in Section 422 of the Code.  11.23 “Non-Qualified Stock Option” means an Option, or portion thereof, not intended or not  qualifying as an Incentive Stock Option.  





 






18    11.24 “Option” means an option to purchase Shares, which will either be an Incentive Stock  Option or a Non-Qualified Stock Option.  11.25 “Other Stock or Cash Based Awards” means cash awards, awards of Shares, and other  awards valued wholly or partially by referring to, or are otherwise based on, Shares or other property  awarded to a Participant under Article VII.  11.26 “Overall Share Limit” means the sum of (a) 3,431,312 Shares; and (b) an annual increase  on the first day of each calendar year beginning January 1, 2022 and ending on and including January 1,  2031, equal to the lesser of (i) two percent (2%) of the aggregate number of Shares outstanding on the final  day of the immediately preceding calendar year and (ii) such smaller number of Shares as is determined by  the Board.    11.27  “Participant” means a Service Provider who has been granted an Award.  11.28 “Performance Criteria” mean the criteria (and adjustments) that the Administrator may  select for an Award to establish performance goals for a performance period, which may include (but is not  limited to) the following: net earnings or losses (either before or after one or more of interest, taxes,  depreciation, amortization, and non-cash equity-based compensation expense); gross or net sales or revenue  or sales or revenue growth; net income (either before or after taxes) or adjusted net income; profits  (including but not limited to gross profits, net profits, profit growth, net operation profit or economic profit),  profit return ratios or operating margin; budget or operating earnings (either before or after taxes or before  or after allocation of corporate overhead and bonus); cash flow (including operating cash flow and free cash  flow or cash flow return on capital); return on assets; return on capital or invested capital; cost of capital;  return on stockholders’ equity; total stockholder return; return on sales; costs, reductions in costs and cost  control measures; expenses; working capital; earnings or loss per share; adjusted earnings or loss per share;  price per share or dividends per share (or appreciation in or maintenance of such price or dividends);  regulatory achievements or compliance; implementation, completion or attainment of objectives relating to  research, development, regulatory, commercial, or strategic milestones or developments; market share;  economic value or economic value added models; division, group or corporate financial goals; customer  satisfaction/growth; customer service; employee satisfaction; recruitment and maintenance of personnel;  human resources management; supervision of litigation and other legal matters; strategic partnerships and  transactions; financial ratios (including those measuring liquidity, activity, profitability or leverage); debt  levels or reductions; sales-related goals; financing and other capital raising transactions; cash on hand;  acquisition activity; investment sourcing activity; and marketing initiatives, any of which may be measured  in absolute terms or as compared to any incremental increase or decrease. Such performance goals also may  be based solely by reference to the Company’s performance or the performance of a Subsidiary, division,  business segment or business unit of the Company or a Subsidiary, or based upon performance relative to  performance of other companies or upon comparisons of any of the indicators of performance relative to  performance of other companies.   11.29 “Plan” means this 2021 Incentive Award Plan.   11.30 “Prior Plan” means the All Market Inc. 2014 Stock Option and Restricted Stock Plan, as  amended.  11.31 “Prior Plan Award” means an award outstanding under any Prior Plan as of the Effective  Date.  





 






19    11.32 “Public Trading Date” means the first date upon which the Common Stock is listed (or  approved for listing) upon notice of issuance on any securities exchange or designated (or approved for  designation) upon notice of issuance as a national market security on an interdealer quotation system.   11.33 “Restricted Stock” means Shares awarded to a Participant under Article VI subject to  certain vesting conditions and other restrictions.  11.34 “Restricted Stock Unit” means an unfunded, unsecured right to receive, on the applicable  settlement date, one Share or an amount in cash or other consideration determined by the Administrator to  be of equal value as of such settlement date awarded to a Participant under Article VI subject to certain  vesting conditions and other restrictions.  11.35 “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act.  11.36 “Section 409A” means Section 409A of the Code and all regulations, guidance,  compliance programs and other interpretative authority thereunder.  11.37 “Securities Act” means the Securities Act of 1933, as amended.  11.38 “Service Provider” means an Employee, Consultant or Director.  11.39 “Shares” means shares of Common Stock.  11.40 “Stock Appreciation Right” means a stock appreciation right granted under Article V.  11.41 “Subsidiary” means any entity (other than the Company), whether domestic or foreign, in  an unbroken chain of entities beginning with the Company if each of the entities other than the last entity  in the unbroken chain beneficially owns, at the time of the determination, securities or interests representing  at least 50% of the total combined voting power of all classes of securities or interests in one of the other  entities in such chain.  11.42 “Substitute Awards” mean Awards granted or Shares issued by the Company in  assumption of, or in substitution or exchange for, awards previously granted, or the right or obligation to  make future awards, in each case by a company acquired by the Company or any Subsidiary or with which  the Company or any Subsidiary combines.  11.43 “Termination of Service” means the date the Participant ceases to be a Service Provider.  * * * * *  Effective October 21, 2021