Filed Pursuant to Rule 424(b)(3)
Registration No. 333-264998
PROSPECTUS SUPPLEMENT NO. 1
To Prospectus dated May 25, 2022
Up to 45,000,000 Shares of Class A Common Stock Issuable Upon
Redemption of Sky Common Units
Up to 13,399,724 Shares of Class A Common Stock
This prospectus supplement no. 1 supplements the prospectus dated
May 25, 2022 (the “Prospectus”), which forms a part of the
Registration Statement on Form S-1 (Registration No. 333-264998),
relating to the issuance by us of up to an aggregate of 45,000,000
shares of our Class A common stock, $0.0001 par value per share
(“Class A Common Stock”), consisting of (i) 42,192,250 shares of
Class A Common Stock issuable upon redemption of 42,192,250 common
units (“Sky Common Units”) of Sky Harbour LLC, a Delaware limited
liability company (“Sky”), issued to directors, officers and
affiliates of Sky pursuant to the Equity Purchase Agreement (as
defined in the Prospectus) in connection with the Business
Combination (as defined in the Prospectus) and (ii) 2,807,750
shares of Class A Common Stock issuable upon redemption of
2,807,750 Sky Common Units, which are issuable upon conversion of
outstanding incentive units of Sky (“Sky Equity Incentive Units”)
at the election of the holders, who are all officers of Sky.
The Prospectus and prospectus supplement also relate to the offer
and sale from time to time by the selling securityholders named in
this prospectus (the “Selling Securityholders”) of up to 58,399,724
shares of Class A Common Stock, consisting of (i) 5,500,000 shares
of Class A Common Stock originally issued to BOC YAC Funding LLC
(“BOC YAC”) in respect of the Sky Common Units that were converted
at the closing of the Business Combination, (ii) 4,500,000 shares
of Class A Common Stock issued to BOC YAC in a private placement
that closed simultaneously with the closing of the Business
Combination, (iii) 3,399,724 shares of Class A Common Stock issued
upon conversion of shares held by BOC Yellowstone LLC (the
“Sponsor”) and its certain affiliates in connection with the
Business Combination, (iv) up to an aggregate of 42,192,250 shares
of Class A Common Stock that are issuable upon redemption of
42,192,250 Sky Common Units and (v) 2,807,750 shares of Class A
Common Stock issuable upon redemption of 2,807,750 shares of Sky
Common Units, which are issuable upon conversion of outstanding Sky
Equity Incentive Units at the election of the holders. We will not
receive any proceeds from the sale of Class A Common Stock by the
Selling Securityholders pursuant to this prospectus. The Selling
Securityholders have agreed, subject to certain exceptions, not to
sell their Class A Common Stock, for a period of at least the first
to occur of (a) January 25, 2023 and (b) if the last sale price of
our Class A Common Stock equals or exceeds $12.00 per share (as
adjusted for stock splits, stock dividends, reorganizations,
recapitalizations and the like) for any 20 trading days within any
30-trading day period commencing on or after June 24, 2022.
We are registering the securities for resale pursuant to the
Selling Securityholders’ registration rights under certain
agreements between us and the Selling Securityholders. Our
registration of the securities covered by this prospectus does not
mean that the Selling Securityholders will offer or sell any of
their Class A Common Stock. The Selling Securityholders may offer,
sell or distribute all or a portion of their Class A Common Stock
publicly or through private transactions at prevailing market
prices or at negotiated prices. We will not receive any proceeds
from the sale of Class A Common Stock by the Selling
Securityholders pursuant to this prospectus. We provide more
information about how the Selling Securityholders may sell their
Class A Common Stock in the section entitled “Plan of
Distribution.”
This prospectus supplement incorporates into the Prospectus the
information contained in our attached
Current Report on Form 8-K, filed with the Securities and Exchange
Commission on May 20, 2022.
You should read this prospectus supplement in conjunction with the
Prospectus, including any supplements and amendments thereto. This
prospectus supplement is qualified by reference to the Prospectus
except to the extent that the information in the prospectus
supplement supersedes the information contained in the Prospectus.
This prospectus supplement is not complete without, and may not be
delivered or utilized except in connection with, the Prospectus,
including any supplements and amendments thereto.
Our Class A Common Stock and Public Warrants are listed on the New
York Stock Exchange American LLC (the “NYSE American”) under the
symbols “SKYH” and “SKYH WS,” respectively. On May 26, 2022, the
closing price of our Class A Common Stock was $8.24 and the closing
price for our Public Warrants was $0.50.
See the section entitled “Risk Factors”
beginning on page 7 of the Prospectus to read about factors you
should consider before buying our securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement of the
Prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The date of this prospectus supplement is May 27, 2022.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) May 17,
2022
Sky Harbour Group Corporation
(Exact name of registrant as specified in its charter)
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Delaware
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001-39648
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85-2732947
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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136 Tower Road, Suite 205
Westchester County Airport
White Plains, NY
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10604
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(Address of principal executive offices)
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(Zip Code)
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(212) 554-5990
Registrant’s telephone number, including area code
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
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☐
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Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Class A common stock, par value $0.0001 per share
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SKYH
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NYSE American LLC
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Warrants, each whole warrant exercisable for one share of Class A
common stock at an exercise price of $11.50 per share
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SKYH WS
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NYSE American LLC
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Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
☐
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Item 5.02
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Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
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Employment Agreement – Mr. Francisco
Gonzalez
On May 17, 2022, Sky Harbour LLC (“Sky”), a wholly-owned
subsidiary of Sky Harbour Group Corporation (the “Company”),
entered into an amendment (the “Amendment”) to the amended
and restated employment agreement with Mr. Gonzalez, dated as of
December 22, 2021 and amended on March 24, 2022 (the “Employment
Agreement”) in connection with his appointment as Chief
Financial Officer. Except as described below, the terms of the
Employment Agreement remain the same.
Obligations in Connection with Death or Disability. In the
event of Mr. Gonzalez’s death or Disability (as defined in the
Employment Agreement), Sky will provide Mr. Gonzalez with full
vesting of any then-unvested, time-based equity awards, subject to
the same general release and restrictive covenants provisions in
the Employment Agreement for all other severance benefits. The
previously disclosed obligations upon certain termination events
remain in effect.
The foregoing description of the Amendment is qualified in its
entirety by reference to the full text of the Amendment, which is
filed as Exhibit 10.1 to this Current Report on Form 8-K.
Grants of Restricted Stock Units
On May 17, 2022, the compensation committee of the board of
directors of the Company approved grants of 75,000 and 150,000
time-based restricted stock units, respectively, to Tal Keinan, the
Company’s Chairman and Chief Executive Officer, and Francisco
Gonzalez, the Company’s Chief Financial Officer. The grants were
made under the Company’s 2022 Incentive Award Plan and restricted
stock award agreements, substantially in the form attached hereto
as Exhibit 10.2, which is incorporated herein by reference.
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Item 9.01
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Financial Statements and Exhibits.
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(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
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Sky Harbour Group Corporation
(Registrant)
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Date: May 19, 2022
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By:
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/s/ Tal Keinan
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Tal Keinan
Chief Executive Officer
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Exhibit
10.1
SECOND AMENDMENT TO
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDMENT TO the Agreement (as defined below) (this
“Amendment”) is entered into as of May 17, 2022 (the
“Effective Date”), by and between SKY HARBOUR LLC, a
Delaware corporation (the “Company”), and Francisco Gonzalez
(“Employee”).
WHEREAS, the Company and Employee are parties to that certain
Amended and Restated Employment Agreement dated as of December 22,
2021, amended as of March 24, 2022 (the “Agreement”);
and
WHEREAS, the Company and Employee now wish to amend the Agreement
to the terms and conditions described herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. The following paragraph is added to
Section 5 as Subsections 5(1), 5(2) and
5(3):
1) Termination due to Death or Disability. If Employee’s
employment is terminated due to death or Disability (as defined
below), all stock option, restricted stock units and other
equity-based incentive awards granted by the Company that were
outstanding but not vested as of the Date of Termination (as
defined below) shall become immediately vested or payable, as the
case may be, unless the equity incentive awards are based upon
satisfaction of performance criteria (not based solely on the
passage of time), in which case, they will only vest pursuant to
their express terms; provided, however, that any such
equity awards that are vested pursuant to this provision and that
constitute a non-qualified deferred compensation arrangement within
the meaning of Section 409A shall be paid or settled on the
earliest date coinciding with or following the Date of Termination
that does not result in a violation of or penalties under Section
409A.
2) Disability. For purposes of this Amendment, a termination
based upon “Disability” means a termination by the Company
based upon Employee's entitlement to long-term disability benefits
under the Company's long-term disability plan or policy, as the
case may be, as in effect on the Date of Termination;
provided, however, that if Employee is not a
participant in the Company's long-term disability plan or policy on
the Date of Termination, Employee shall still be considered
terminated based upon Disability if Employee would have been
entitled to benefits under the Company's long-term disability plan
or policy had Employee been a participant on Employee’s Date of
Termination.
3) Date of Termination. For purposes of the Agreement and
this Amendment, “Date of Termination” means the date of
termination as set forth on a written notice of termination or, if
different, the date of receipt by the Company of such notice of
termination; provided, however, that any such date
shall not exceed the date of receipt by more than 30 days.
2. Except as expressly amended or modified
by this Amendment, the terms and conditions of the Agreement shall
remain in full force and effect. This Amendment may be executed in
one or more counterparts, each of which constitutes an original but
all of which constitute one and the same instrument. This Amendment
may be amended only by a writing signed by all of the parties
hereto.
IN WITNESS WHEREOF, the parties hereby execute this Amendment as of
the date first written above.
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SKY HARBOUR LLC
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EMPLOYEE
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By:
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/s/ Tal Keinan
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/s/ Francisco Gonzalez
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Name:
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Francisco Gonzalez
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Title:
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Exhibit
10.2
SKY HARBOUR GROUP CORPORATION
2022 INCENTIVE AWARD PLAN
RESTRICTED STOCK UNIT GRANT NOTICE
Sky Harbour Group Corporation, a Delaware corporation (the
“Company”), has granted to the participant listed below
(“Participant”) the Restricted Stock Units (the
“RSUs”) described in this Restricted Stock Unit Grant Notice
(this “Grant Notice”), subject to the terms and conditions
of the Sky Harbour Group Corporation 2022 Incentive Award Plan (as
may be amended from time to time, the “Plan”) and the
Restricted Stock Unit Agreement attached hereto as
Exhibit A (the “Agreement”), both
of which are incorporated into this Grant Notice by reference.
Capitalized terms not specifically defined in this Grant Notice or
the Agreement have the meanings given to them in the Plan.
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Participant:
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[ ]
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Grant Date:
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[ ]
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Number of RSU:
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[ ]
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Vesting Commencement Date:
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[ ]
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Vesting Schedule:
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[ ];
subject to Section 2.1 of the Agreement.
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By accepting (whether in writing, electronically or otherwise) the
RSUs, Participant agrees to be bound by the terms of this Grant
Notice, the Plan and the Agreement. Participant has reviewed the
Plan, this Grant Notice and the Agreement in their entirety, has
had an opportunity to obtain the advice of counsel prior to
executing this Grant Notice and fully understands all provisions of
the Plan, this Grant Notice and the Agreement. Participant hereby
agrees to accept as binding, conclusive and final all decisions or
interpretations of the Administrator upon any questions arising
under the Plan, this Grant Notice or the Agreement.
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SKY HARBOUR GROUP CORPORATION
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PARTICIPANT
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By: |
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Name: |
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Title: |
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Exhibit A
RESTRICTED STOCK UNIT AGREEMENT
Capitalized terms not specifically defined in this Agreement have
the meanings specified in the Grant Notice or, if not defined in
the Grant Notice, in the Plan.
ARTICLE I
GENERAL
1.1 Award of RSUs.
The Company has granted the RSUs to Participant effective as of the
Grant Date set forth in the Grant Notice (the “Grant Date”).
Each RSU represents the right to receive one Share as set forth in
this Agreement. Participant will have no right to the distribution
of any Shares until the time (if ever) the RSUs have vested.
1.2 Incorporation of
Terms of Plan. The RSUs are subject to the terms and conditions
set forth in this Agreement and the Plan, which is incorporated
herein by reference. In the event of any inconsistency between the
Plan and this Agreement, the terms of the Plan will control.
1.3 Unsecured
Promise. The RSUs will at all times prior to settlement
represent an unsecured Company obligation payable only from the
Company’s general assets.
ARTICLE II
VESTING; FORFEITURE AND SETTLEMENT
2.1 Vesting;
Forfeiture. The RSUs will vest according to the vesting
schedule in the Grant Notice except that any fraction of an RSU
that would otherwise be vested will be accumulated and will vest
only when a whole RSU has accumulated.
(a) Subject to Section
2.1(b), in the event of Participant’s Termination of Service
for any reason, all unvested RSUs will immediately and
automatically be cancelled and forfeited, except as otherwise
determined by the Administrator or provided in a binding written
agreement between Participant and the Company.
(b) Notwithstanding anything to
the contrary, upon Participant’s Termination of Service for
Retirement, all unvested RSUs will immediately vest as of the date
of such Termination of Service. For purposes of this Agreement,
“Retirement” means Participant’s Termination of Service,
other than for Cause, if, at the time of such Termination of
Service, the sum of Participant’s age and years of service with the
Company or an Affiliate add up to 65 or more on the date of such
Termination of Service, provided that such Termination of Service
constitutes a “separation from service” as defined in the
regulations under Section 409A. [For the avoidance of doubt, a
Termination of Service for death or Disability (as defined below)
in the event that the sum of Participant’s age and years of service
with the Company or an Affiliate add up to 65 or more as of the
date of such Termination of Service shall constitute Retirement,
provided that such Termination of Service constitutes a “separation
from service” as defined in the regulations under Section 409A and
occurs prior to the specified effective date of a Change in
Control.]
(c) [Notwithstanding anything to
the contrary, upon the consummation of a Change in Control of the
Company, all unvested RSUs will immediately vest as of the
consummation of such Change in Control.]
(d) [Notwithstanding anything to
the contrary, upon Participant’s Termination of Service due to
death or Disability, all unvested RSUs will immediately vest as of
the date of such Termination of Service. For purposes of this
Agreement, “Disability” means such term (or word of like
import) as defined under the long-term disability policy of the
Company or any Affiliate to which Participant provides services
regardless of whether Participant is covered by such policy. If the
Company or any Affiliate to which Participant provides services
does not have a long-term disability policy in place,
“Disability” means that Participant is unable to carry out
the responsibilities and functions of the position held by
Participant by reason of any medically determinable physical or
mental impairment for a period of not less than 90 consecutive
days. Participant will not be considered to have incurred a
Disability unless Participant furnishes proof of such impairment
sufficient to satisfy the Administrator in its discretion.]
(e) [Notwithstanding anything to
the contrary, upon Participant’s Termination of Service without
Cause or resignation for Good Reason, all unvested RSUs shall
remain outstanding and eligible to vest following the Date of
Termination and shall actually vest and become non-forfeitable as
of the Date of Termination (as defined in the Participant’s
employment agreement with the Company or an Affiliate, dated as of
[•],as may be amended from time to time (the “Employment
Agreement”)), subject to the release provisions of the
Employment Agreement becoming effective by its own terms.]
2.2 Settlement.
(a) The RSUs will be paid in
Shares as soon as administratively practicable after the vesting of
the applicable RSU, but no later than 30 days following the
applicable date on which any RSU vests.
(b) Notwithstanding the
foregoing, the Company may delay any payment under this Agreement
that the Company reasonably determines would violate Applicable Law
until the earliest date the Company reasonably determines the
making of the payment will not cause such a violation (in
accordance with Treasury Regulation Section 1.409A-2(b)(7)(ii));
provided the Company reasonably believes the delay will not result
in the imposition of excise taxes under Section 409A.
(c) The Company shall delay the
delivery of any Shares under this Agreement to Participant to the
extent it deems necessary or appropriate to comply with Section
409A(a)(2)(B)(i) of the Code (relating to payments made to certain
“specified employees” of certain publicly-traded companies); in
such event, any Shares to which Participant would otherwise be
entitled during the six month period following the date of
Participant’s Termination of Service will be delivered on the first
business day following the expiration of such six month period (or,
if earlier, Participant’s date of death).
2.3 Defined
Terms.
(a) As used in this Agreement,
“Cause” shall have the meaning ascribed to such term (or
word of like import) as expressly defined in an effective written
agreement between Participant and the Company or its Affiliates, or
in the absence of such effective written agreement and definition,
“Cause” means any of the following events that the Board has
determined, in good faith, has occurred: (i) Participant’s failure
to substantially perform Participant’s duties (other than a failure
resulting from Participant’s disability), including Participant’s
failure to follow any lawful directive from the Board or
Participant’s immediate supervisor; (ii) Participant’s violation of
any code or standard of behavior generally applicable to Employees
or executives of the Company; (iii) engaging in conduct that may
reasonably result in reputational, economic or financial injury to
the Company or its Affiliates; (iv) Participant’s commission of,
indictment for or plea of nolo contendere to a felony, any crime
involving fraud or embezzlement under federal, state or local laws
or a crime involving moral turpitude; (v) Participant’s failure to
devote substantially all of Participant’s working time to the
business of the Company and its Affiliates; (vi) Participant’s
unlawful use (including being under the influence) or possession of
illegal drugs on the premises of the Company or any of its
Affiliates or while performing Participant’s duties and
responsibilities for the Company or any of its Affiliates; (vii)
Participant’s commission of an act of fraud, willful misconduct or
gross negligence with respect to the Company or its Affiliates, or
Participant’s material breach of fiduciary duty against the Company
or any of its Affiliates; (viii) Participant’s engaging in
misconduct in connection with the performance of any of
Participant’s duties, including by embezzlement or theft from the
Company or its Affiliates, misappropriating funds from the Company
or its Affiliates or securing or attempting to secure personally
any profit in connection with any transaction entered into on
behalf of the Company or its Affiliates; or (ix) Participant’s
active disloyalty to the Company or its Affiliates, including
willfully aiding a competitor or improperly disclosing confidential
information.
(b) As used in this Agreement,
“Good Reason” shall have the meaning ascribed to such term
(or word of like import) as expressly defined in an effective
written agreement between Participant and the Company or its
Affiliates, or in the absence of such effective written agreement
and definition, “Good Reason” means a termination by
Participant based upon the occurrence (without Participant’s
express written consent) of any of the following: (i) a reduction
in Participant‘s annual base salary by 10% or greater (unless such
reduction applies generally to all employees of the Company); or
(ii) a material diminution in Participant’s authority, duties or
responsibilities. Participant's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any
act or failure to act constituting Good Reason hereunder; provided,
however, that the events described herein shall not constitute Good
Reason unless Participant notifies the Company in writing within 30
days following the event purportedly giving rise to Good Reason and
the Company fails to cure the circumstances purportedly giving rise
to Good Reason within 30 days following such notice by Participant
(the “Cure Period”). If the Company fails to so cure prior
to the expiration of the Cure Period, then Participant may tender
Participant’s resignation for Good Reason, such resignation to be
effective no later than 30 days following the end of the Cure
Period; it being understood that if Participant fails to resign
within such 30 day period, Participant’s right to terminate
Participant’s employment for Good Reason on account of the event or
events described in such notice shall be deemed to be waived.
ARTICLE III
TAXATION AND TAX
WITHHOLDING
3.1 Representation.
Participant represents to the Company that Participant has reviewed
with Participant’s own tax advisors the tax consequences of this
award of RSUs (the “Award”) and the transactions
contemplated by the Grant Notice and this Agreement. Participant is
relying solely on such advisors and not on any statements or
representations of the Company or any of its agents.
3.2 Tax
Withholding.
(a) Participant acknowledges that
Participant is ultimately liable and responsible for all taxes owed
in connection with the RSUs, regardless of any action the Company
or any Affiliate takes with respect to any tax withholding
obligations that arise in connection with the RSUs. Neither the
Company nor any Affiliate makes any representation or undertaking
regarding the treatment of any tax withholding in connection with
the awarding, vesting or payment of the RSUs or the subsequent sale
of Shares. The Company and its Affiliates do not commit and are
under no obligation to structure the RSUs to reduce or eliminate
Participant’s tax liability. Participant agrees to pay to the
Company or any Affiliate any amount of tax withholding
obligations that the Company or an Affiliate may be required to
withhold or account for as a result of Participant’s participation
in the Plan that cannot be satisfied by the means described in this
Section 3. The Company may refuse to issue or deliver the
Shares, or the proceeds of the sale of Shares, if Participant fails
to comply with Participant’s obligations in connection
with any applicable withholding tax obligations.
(b) Prior to the relevant taxable
or tax withholding event, as applicable, Participant agrees to make
adequate arrangements satisfactory to the Company or an Affiliate
to satisfy all applicable withholding tax obligations in connection
with the RSUs. In this regard, Participant authorizes the Company
or an Affiliate, or their respective agents, at their discretion,
to satisfy the obligations with regard to all withholding tax
liabilities by one or a combination of the following:
(i) cash, wire transfer of immediately
available funds or check,
(ii) Shares or Shares held for such minimum
period of time as may be established by the Administrator, in each
case, having a Fair Market Value on the date of delivery equal to
the aggregate payments required,
(iii) delivery of a written or electronic
notice that Participant has placed a market sell order with a
broker acceptable to the Company with respect to Shares then
issuable vesting of the RSUs, and that the broker has been directed
to pay a sufficient portion of the net proceeds of the sale to the
Company in satisfaction of the aggregate payments required;
provided that payment of such proceeds is then made to the
Company upon settlement of such sale,
(iv) other form of legal consideration
acceptable to the Administrator in its sole discretion, or
(v) any combination of the above permitted
forms of payment.
[Notwithstanding the foregoing, if Participant is an officer of the
Company whom the Administrator has determined is subject to the
reporting requirements of Section 16 of the Exchange Act, [unless
otherwise determined by the Board], the Shares will be delivered
net of any withholding taxes as the Company determines necessary to
satisfy the applicable withholding obligations.] In the event the
Company or an Affiliate withholds more than the withholding
taxes using one of the methods described above, Participant may
receive a refund of any over-withheld amount in cash but will have
no entitlement to the Shares sold or withheld.
ARTICLE IV
OTHER PROVISIONS
4.1 Dividend
Equivalents. Dividend Equivalents shall not be credited to
Participant while the RSUs are outstanding.
4.2 Adjustments.
Participant acknowledges that the RSUs and the Shares subject to
the RSUs are subject to adjustment, modification and termination in
certain events as provided in this Agreement and the Plan.
4.3 Administration and
Interpretation. Any question or dispute regarding the
administration or interpretation of the Plan, the Grant Notice or
this Agreement shall be submitted by Participant or by the Company
to the Administrator. The resolution of such question or dispute by
the Administrator shall be final and binding.
4.4 Personal Data
Authorization. Participant understands and acknowledges that
the Company and its Affiliates hold certain personal information
regarding Participant for the purpose of managing and administering
the Plan, including Participant’s name, home address, telephone
number, date of birth, social security number, salary, nationality,
job title, any Shares or directorships held in the Company and
details of all Awards canceled, exercised, vested, unvested or
outstanding in Participant’s favor (“Data”). Participant
further understands and acknowledges that the Company and its
Affiliates will transfer Data among themselves as necessary for the
purpose of implementation, administration and management of
Participant’s participation in the Plan and that the Company and
any its Affiliates may each further transfer Data to any third
party assisting the Company in the implementation, administration
and management of the Plan. Participant understands and
acknowledges that the recipients of Data may be located in the
United States or elsewhere.
4.5 Clawback. The
Award and the Shares issuable hereunder shall be subject to any
clawback or recoupment policy in effect on the Grant Date or as may
be adopted or maintained by the Company following the Grant Date,
including the Dodd-Frank Wall Street Reform and Consumer Protection
Act and any rules or regulations promulgated thereunder.
4.6 Notices. Any
notice to be given under the terms of this Agreement to the Company
must be in writing and addressed to the Company in care of the
Compensation Committee of the Board, the Chief Executive Officer or
the General Counsel at the Company’s principal office or the Chief
Executive Officer’s or the General Counsel’s then-current email
address. Any notice to be given under the terms of this Agreement
to Participant must be in writing and addressed to Participant (or,
if Participant is then deceased, to Participant’s designated
beneficiary) at Participant’s last known mailing address, email
address or facsimile number in the Company’s personnel files. By a
notice given pursuant to this Section 4.6, either party may
designate a different address for notices to be given to that
party. Any notice will be deemed duly given when actually received,
when sent by email, when sent by certified mail (return receipt
requested) and deposited with postage prepaid in a post office or
branch post office regularly maintained by the United States Postal
Service, when delivered by a nationally recognized express shipping
company or upon receipt of a facsimile transmission
confirmation.
4.7 Titles. Titles
are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.
4.8 Conformity to
Securities Laws. Participant acknowledges that the Plan, the
Grant Notice and this Agreement are intended to conform to the
extent necessary with all Applicable Law and, to the extent
Applicable Law permits, will be deemed amended as necessary to
conform to Applicable Law.
4.9 Successors and
Assigns. The Company may assign any of its rights under this
Agreement to a single or multiple assignees, and this Agreement
will inure to the benefit of the successors and assigns of the
Company. Subject to the restrictions on transfer set forth in this
Agreement or the Plan, this Agreement will be binding upon and
inure to the benefit of the heirs, legatees, legal representatives,
successors and assigns of the parties hereto.
4.10 Limitations
Applicable to Section 16 Persons. Notwithstanding any other
provision of the Plan or this Agreement, if Participant is subject
to Section 16 of the Exchange Act, the Plan, the Grant Notice, this
Agreement and the RSUs will be subject to any additional
limitations set forth in any applicable exemptive rule under
Section 16 of the Exchange Act (including any amendment to Rule
16b-3) that are requirements for the application of such exemptive
rule. To the extent Applicable Law permits, this Agreement will be
deemed amended as necessary to conform to such applicable exemptive
rule.
4.11 Entire Agreement;
Amendment. The Plan, the Grant Notice and this Agreement
(including any exhibit hereto) constitute the entire agreement of
the parties and supersede in their entirety all prior undertakings
and agreements of the Company and Participant with respect to the
subject matter hereof. To the extent permitted by the Plan, this
Agreement may be wholly or partially amended or otherwise modified,
suspended or terminated at any time or from time to time by the
Administrator or the Board; provided, however, that
except as may otherwise be provided by the Plan, no amendment,
modification, suspension or termination of this Agreement shall
materially and adversely affect the RSUs without the prior written
consent of Participant.
4.12 Agreement
Severable. In the event that any provision of the Grant Notice
or this Agreement is held illegal or invalid, the provision will be
severable from, and the illegality or invalidity of the provision
will not be construed to have any effect on, the remaining
provisions of the Grant Notice or this Agreement.
4.13 Limitation on
Participant’s Rights. Participation in the Plan confers
no rights or interests other than as herein provided. This
Agreement creates only a contractual obligation on the part of the
Company as to amounts payable and may not be construed as creating
a trust. Neither the Plan nor any underlying program, in and of
itself, has any assets. Participant will have only the rights of a
general unsecured creditor of the Company with respect to amounts
credited and benefits payable, if any, with respect to the RSUs,
and rights no greater than the right to receive cash or the Shares
as a general unsecured creditor with respect to the RSUs, as and
when settled pursuant to the terms hereof.
4.14 Not a Contract of
Employment. Nothing in the Plan, the Grant Notice or this
Agreement confers upon Participant any right to continue in the
employ or service of the Company or any Affiliate or interferes
with or restricts in any way the rights of the Company and any
Affiliate, which rights are hereby expressly reserved, to discharge
or terminate the services of Participant at any time for any reason
whatsoever, with or without Cause, except to the extent expressly
provided otherwise in a written agreement between the Company or an
Affiliate and Participant.
4.15 Counterparts.
The Grant Notice may be executed in one or more counterparts,
including by way of any electronic signature, subject to Applicable
Law, each of which will be deemed an original and all of which
together will constitute one instrument.
* * * * *
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