As filed with the Securities and Exchange Commission
on August 9, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Sharecare, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
255 East Paces Ferry Road NE,
Suite 700
Atlanta, Georgia 30305
(404) 671-4000 |
85-1365053 |
|
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(State or other jurisdiction of
incorporation or organization) |
(Address, including zip code, and telephone
number, including area code, of
registrant’s principal executive offices) |
(I.R.S. Employer
Identification No.) |
|
SHARECARE, INC. 2024 INDUCEMENT PLAN
Sharecare, Inc. 2021 Omnibus Incentive Plan
(Full title of the plan)
Brent
Layton
Chief Executive Officer
Sharecare, Inc.
255 East Paces Ferry Road NE, Suite 700
Atlanta, Georgia 30305
(404) 671-4000
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Carrie Ratliff
Chief Legal
Officer
Sharecare, Inc.
255 East Paces Ferry Road NE, Suite 700
Atlanta, GA 30305
(404) 671-4000
Indicate by check mark whether the registrant is
a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See
the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and
“emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
¨ |
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Accelerated filer |
x |
| Non-accelerated filer |
¨ |
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Smaller reporting company |
¨ |
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Emerging growth company |
x |
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 7(a)(2)(B) of the Securities Act. ¨
EXPLANATORY NOTE
REGISTRATION OF ADDITIONAL SHARES AND INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE PURSUANT TO GENERAL INSTRUCTION E OF FORM S-8
This
Registration Statement on Form S-8 (this “Registration Statement”) is being filed by Sharecare, Inc., a Delaware
corporation (the “Registrant”) for the purpose of registering an aggregate of 22,671,518 additional shares of common
stock, par value $0.0001 per share (the “Common Stock”), comprised of (i) 17,671,518 shares of Common Stock reserved
for potential future issuance under the Registrant’s 2021 Omnibus Incentive Plan (the “Incentive Plan”) pursuant
to the provision of the Incentive Plan providing for an automatic annual increase in the number of shares reserved for issuance under
the Incentive Plan for the 2024 fiscal year and (ii) 5,000,000 shares of Common Stock reserved and available for issuance under the
Registrant’s 2024 Inducement Plan (the “Inducement Plan”), consisting of (a) 1,500,000 shares of Common
Stock that may be issued pursuant to the Inducement Plan upon the vesting of outstanding performance-based restricted stock units (the
“PSUs”) granted to new employees as inducement awards in connection with the commencement of employment pursuant to
Nasdaq Listing Rule 5635(c)(4), (b) 1,889,285 shares of Common Stock that may be issued pursuant to the Inducement Plan upon
the vesting of outstanding time-based restricted stock units (the “RSUs”) granted to new employees as inducement awards
in connection with the commencement of employment pursuant to Nasdaq Listing Rule 5635(c)(4) and (c) 1,610,715 remaining
shares of Common Stock reserved and available for future issuance under the Inducement Plan.
The PSUs, RSUs and other awards as may be granted
under the Inducement Plan will be issued outside of the Incentive Plan, approved by the Registrant’s board of directors and issued
pursuant to the “inducement” grant exception under Nasdaq Rule 5635(c)(4), as inducements that are material to employees’
entering into employment with the Registrant.
This Registration Statement hereby incorporates
by reference the contents of the Registrant’s earlier registration statements on Form S-8 filed with the Securities and Exchange
Commission (the “SEC”) on September 7, 2021 (Registration No. 333-259344) and May 10, 2023 (Registration No. 333-271828), in each case, to the extent not superseded hereby. In accordance with the instructional note to Part I of Form S-8
promulgated by the SEC, the information specified by Part I of Form S-8 has been omitted from this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is incorporating by reference into
this Registration Statement the filings listed below and any additional documents that the Registrant may file with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
after the date of this Registration Statement, but prior to the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining unsold, except the Registrant is not incorporating by
reference any information furnished (but not filed) under Item 2.02 or Item 7.01 of any Current Report on Form 8-K and corresponding
information furnished under Item 9.01 as an exhibit thereto:
| · | the Registrant’s Current Reports on Form 8-K filed with the SEC on February 9, 2024, February 27, 2024, March 12, 2024, March 28, 2024, April 5, 2024, June 20, 2024, and June 21, 2024 (in each case, excluding any information “furnished”
pursuant to Item 2.02 or Item 7.01 of any such Current Report on Form 8-K unless otherwise indicated therein); and |
Any statement contained in this Registration Statement,
or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded to the extent
that a statement contained herein, or in any subsequently filed document that also is incorporated or deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 8. Exhibits
The following are filed as exhibits to this Registration Statement:
*Filed herewith
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Atlanta, State of Georgia, on August 9, 2024.
Sharecare, Inc.
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By: |
/s/ Brent Layton |
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Name: Brent Layton
Title: Chief Executive Officer |
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POWER OF ATTORNEY
Each person whose signature appears below appoints
Brent Layton, Justin Ferrero, Colin Daniel and Carrie Ratliff, and each of them, severally, as his or her true and lawful attorney or
attorneys-in-fact and agent or agents, each of whom shall be authorized to act with or without the other, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead in his or her capacity as a director or officer or both, as
the case may be, of the Registrant, to sign any and all amendments or supplements (including any and all prospectus supplements, stickers
and post-effective amendments) to this Registration Statement, and all documents or instruments necessary or appropriate to enable the
Registrant to comply with the Securities Act of 1933 and to file the same, with all exhibits thereto, and any other documentation in connection
therewith, with the SEC, with full power and authority to each of said attorneys-in-fact and agents to do and perform in the name and
on behalf of each such director or officer, or both, as the case may be, each and every act whatsoever that is necessary, appropriate
or advisable in connection with any or all of the above-described matters and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on August 9,
2024.
| Signature |
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Title |
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| /s/ Brent Layton |
|
Chief Executive Officer and Director (Principal Executive Officer) |
| Brent Layton |
|
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| /s/ Justin Ferrero |
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Chief Financial Officer (Principal Financial Officer) |
| Justin Ferrero |
|
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| /s/ Michael Blalock |
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Chief Accounting Officer (Principal Accounting Officer) |
| Michael Blalock |
|
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| /s/ Jeff Arnold |
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Executive Chairman |
| Jeff Arnold |
|
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| /s/ Jeffrey A. Allred |
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Director |
| Jeffrey A. Allred |
|
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| /s/ John H. Chadwick |
|
Director |
| John H. Chadwick |
|
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| /s/ Sandro Galea |
|
Director |
| Sandro Galea |
|
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| /s/ Kenneth R. Goulet |
|
Director |
| Kenneth R. Goulet |
|
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| /s/ Veronica Mallett |
|
Director |
| Veronica Mallett |
|
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| /s/ Alan G. Mnuchin |
|
Director |
| Alan G. Mnuchin |
|
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| /s/ Rajeev Ronanki |
|
Director |
| Rajeev Ronanki |
|
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| /s/ Jeffrey Sagansky |
|
Director |
| Jeffrey Sagansky |
|
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|
| /s/ Nicole Torraco |
|
Director |
| Nicole Torraco |
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Exhibit 5.1
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King & Spalding LLP
1180 Peachtree Street N.E.
Ste. 1600
Tel: +1 404 572 4600
Fax: +1 404 572 5100
www.kslaw.com |
August 9, 2024
Sharecare, Inc.
255 East Paces Ferry Road NE, Suite 700
Atlanta, GA 30305
Ladies and Gentlemen:
We have acted as counsel to Sharecare, Inc., a Delaware corporation
(the “Company”), in connection with the preparation of a Registration Statement on Form S-8 (the “Registration
Statement”) to be filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended
(the “Securities Act”). The Registration Statement relates to the registration of 22,671,518 additional shares of the Company’s
common stock, par value $0.0001 per share (the “Common Stock”), comprised of: (i) 17,671,518 shares of Common Stock issuable
pursuant to the Registrant’s 2021 Omnibus Incentive Plan (the “Incentive Plan”) and (ii) 5,000,000 shares of Common
Stock issuable under the Registrant’s 2024 Inducement Plan (the “Inducement Plan”), consisting of (a) 1,500,000
shares of Common Stock issuable pursuant to the terms of an award agreements substantially in the form of the Form of Performance-Based
Restricted Stock Unit Award Agreement, filed as Exhibit 99.2 to the Registration Statement (the “PSU Agreement”), (b) 1,889,285
shares of Common Stock issuable pursuant to the terms of award agreements substantially in the form of the Form of Time-Based Restricted
Stock Unit Award Agreement, filed as Exhibit 99.3 to the Registration Statement (the “RSU Agreement”) and (c) 1,610,715
remaining shares of Common Stock issuable under the Inducement Plan (clauses (i) and (ii) together, the “Shares”).
In connection with this opinion, we have examined and relied upon the
accuracy of original, certified, conformed or photographic copies of such records, agreements, certificates and other documents as we
have deemed necessary or appropriate to enable us to render the opinions set forth below. In all such examinations, we have assumed the
genuineness of signatures on original documents and the conformity to such original documents of all documents submitted to us as certified,
conformed or photographic copies and, as to certificates of public officials, we have assumed the same to have been properly given and
to be accurate. As to matters of fact material to this opinion, we have relied, without independent verification, upon statements and
representations of representatives of the Company and public officials.
This opinion is limited in all respects to the Delaware General Corporation
Law, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect that such laws may have on the opinions
expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters
expressly stated herein.
Based upon the foregoing, and subject to the assumptions, qualifications
and limitations set forth herein, we are of the opinion that the Shares are duly authorized and, when the Shares are issued as contemplated
by the Incentive Plan, the Inducement Plan, the PSU Agreement and the RSU Agreement, as applicable, such Shares will be validly issued,
fully paid and non-assessable.
This opinion is given as of the date hereof, and we assume no obligation
to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur, which could affect
the opinions contained herein. This opinion is being rendered for the benefit of the Company in connection with the matters addressed
herein.
Sharecare, Inc.
August 9, 2024
Page 2
We consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act.
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Very truly yours, |
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|
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/s/ King & Spalding LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the incorporation by reference
in the Registration Statement (Form S-8) pertaining to the Sharecare, Inc. 2024 Inducement Plan and the Sharecare, Inc.
2021 Omnibus Incentive Plan of our report dated March 29, 2024, with respect to the consolidated financial statements of Sharecare, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
August 9, 2024
Exhibit 99.1
SHARECARE, INC.
2024 INDUCEMENT PLAN
Adopted by the Board of Directors: June 14, 2024
1. GENERAL
(a) Eligible
Award Recipients. The only persons eligible to receive grants of Awards under this Plan are individuals who satisfy the
standards for inducement grants under NASDAQ Marketplace Rule 5635(c)(4) or 5635(c)(3), if applicable, and the related
guidance under NASDAQ IM 5635-1. A person who previously served as an Employee or Director will not be eligible to receive Awards
under the Plan, other than following a bona fide period of non-employment. Persons eligible to receive grants of Awards under
this Plan are referred to in this Plan as “Eligible Employees.” These Awards must be approved by either a majority of
the Company’s “Independent Directors” (as such term is defined in NASDAQ Marketplace Rule 5605(a)(2)) or the
Company’s compensation and human capital committee of the Board, provided such committee comprises solely Independent
Directors (the “Independent Compensation Committee”) in order to comply with the exemption from the stockholder approval
requirement for “inducement grants” provided under Rule 5635(c)(4) of the NASDAQ Marketplace Rules. NASDAQ
Marketplace Rule 5635(c)(4) and the related guidance under NASDAQ IM 5635-1 (and any analogous rules or guidance
effective after the date hereof) are referred to in this Plan as the “Inducement Award Rules.”
(b) Plan
Purpose. The Plan, through the granting of Awards, is intended to provide (i) an inducement material for certain individuals
to enter into employment with the Company within the meaning of Rule 5635(c)(4) of the NASDAQ Marketplace Rules,
(ii) incentives for such persons to exert maximum efforts for the success of the Company and any affiliate and (iii)
a means by which Eligible Employees may be given an opportunity to benefit from increases in value of the Stock through the granting
of Awards.
(c) Available Awards. The
Plan provides for the grant of the following Awards:
(i) Stock Options, (ii) SARs,
(iii) Restricted Stock, (iv) Unrestricted Stock, (v) Stock Units, including Restricted Stock Units,
(vi) Performance Awards, and (vii) Awards (other than Awards described in (i) through (vii) that are convertible
into or otherwise based on Stock).
2. ADMINISTRATION
(a) Administration.
The Board will administer the Plan; provided, however, that Awards may only be granted by either (i) a majority of the Company’s
Independent Directors or (ii) the Independent Compensation Committee. Subject to those constraints and the other constraints of
the Inducement Award Rules, the Board may delegate some of its powers of administration of the Plan to a Committee, as provided in Section 2(c).
References to the “Board” and the “Committee” in the Plan shall be construed to mean either a majority of the
Company’s Independent Directors or the Independent Compensation Committee to the extent to comply with the Inducement Award Rules.
(b) Powers
of the Board. The Board has discretionary authority, subject to the express provisions of the Plan and the Inducement Award
Rules, to set Award terms and conditions and determine Award eligibility. The Board 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. The Board may correct defects and ambiguities, supply
omissions and reconcile inconsistencies in the Plan or any Award as it deems necessary or appropriate to administer the Plan and any
Awards. All determinations of the Board made with respect to the Plan or any Award are conclusive and bind all persons.
(c) Delegation.
Subject to the Inducement Award Rules, the Board may delegate some or all of the administration of the Plan to a Committee or Committees.
If administration of the Plan is delegated to a Committee, the Committee will have, in connection with the administration of the Plan,
the powers theretofore possessed by the Board that have been delegated to the Committee, including the power to delegate to a subcommittee
of the Committee any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board will
thereafter be to the Committee or subcommittee). Any delegation of administrative powers will be reflected in resolutions, not inconsistent
with the provisions of the Plan, adopted from time to time by the Board or Committee (as applicable). The Board may retain the authority
to concurrently administer the Plan with the Committee and may, at any time, revest in the Board some or all of the powers previously
delegated.
(d) Rules 16b-3
Compliance. To the extent an Award is intended to qualify for the exemption from Section 16(b) of the Exchange Act that
is available under Rule 16b-3, the Award will be granted by a Committee that consists solely of two or more Non-Employee Directors,
as determined in accordance with Rule 16b-3 and thereafter, any action establishing or modifying the terms of the Award will be approved
by a Committee meeting such requirements to the extent necessary for such exemption to remain available.
3. SHARES
SUBJECT TO THE PLAN
(a) Share
Pool. Subject to Section 7(b), the aggregate number of shares of Stock that may be issued pursuant to Awards from and after
the Effective Date shall not exceed 5,000,000 shares. Shares may be issued under the terms of this Plan in connection with a merger or
acquisition as permitted by NASDAQ Marketplace Rule 5635(c)(3), NYSE Listed Company Manual Section 303A.08, American Company
Guide Section 711 or other applicable rule, and such issuance will not reduce the number of shares available for issuance under the
Plan.
(b) Shares
Returned to Share Pool. For purposes of Section 3(a), the number of shares of Stock delivered in satisfaction of Awards will
be determined (i) by reducing the Share Pool by the number of shares of Stock withheld by the Company in payment of the exercise
price or purchase price of an Award or in satisfaction of tax withholding requirements with respect to an Award, (ii) by reducing
the Share Pool by the full number of shares covered by a SAR any portion of which is settled in Stock (and not only the number of shares
of Stock delivered in settlement of a SAR), and (iii) by increasing the Share Pool by any shares of Stock underlying any portion
of an Award that is settled in cash or that expires, becomes unexercisable, terminates or is forfeited to or repurchased by the Company
without the issuance of Stock (or retention, in the case of Restricted Stock or Unrestricted Stock). For the avoidance of doubt, the Share
Pool will not be increased by any shares of Stock delivered under the Plan that are subsequently repurchased using proceeds directly attributable
to Stock Option exercises.
(c) Source
of Shares. Stock delivered by the Company under the Plan may be authorized but unissued Stock, treasury Stock or previously
issued Stock acquired by the Company, including shares repurchased by the Company on the open market or otherwise. No fractional
shares of Stock will be delivered under the Plan.
4. ELIGIBILITY
AND PARTICIPATION
(a) Eligibility
for Awards. Awards may only be granted to persons who are Eligible Employees described in Section 1(a) of the Plan,
where the Award is an inducement material to the individual’s entering into employment with the Company or an affiliate within the
meaning of Rule 5635(c)(4) of the NASDAQ Marketplace Rules or is otherwise permitted pursuant to Rule 5635(c) of
the NASDAQ Marketplace Rules, provided however, that Awards may not be granted to Eligible Employees who are providing service only to
any “parent” of the Company, as such term is defined in Rule 405 of the Securities Act, unless (i) the stock underlying
such Awards is treated as “service recipient stock” under Section 409A (for example, because the Awards are granted pursuant
to a corporate transaction such as a spin off transaction), or (ii) the Company, in consultation with its legal counsel, has determined
that such Awards are otherwise exempt from or comply with the distribution requirements of Section 409A.
(b) Approval
Requirements. All Awards must be granted either by a majority of the Company’s Independent Directors or the Independent
Compensation Committee in accordance with the Inducement Award Rules.
5. RULES
APPLICABLE TO AWARDS
(a) Award
Provisions. The Board will determine the terms and conditions of all Awards, subject to the limitations provided herein. No
term of an Award shall provide for automatic “reload” grants of additional Awards upon the exercise of a Stock Option or
SAR. By accepting (or, under such rules as the Board may prescribe, being deemed to have accepted) an Award, the Participant
will be deemed to have agreed to the terms and conditions of the Award and the Plan.
(b) Transferability.
Except as the Board otherwise expressly provides in accordance with the third sentence of this Section 6(a)(2), no Awards may be
transferred other than by will or by the laws of descent and distribution. During a Participant’s lifetime, except as the Board
otherwise expressly provides in accordance with the third sentence of this Section 5(a)(2), SARs and Stock Options may be exercised
only by the Participant. The Board may permit the gratuitous transfer (i.e., transfer not for value) of Awards, subject to applicable
securities and other laws and such terms and conditions as the Board may determine.
(c) Vesting;
Exercisability. The Board will determine the time or times at which an Award vests or becomes exercisable and the terms and
conditions on which a Stock Option or SAR remains exercisable. Without limiting the foregoing, the Board may at any time accelerate
the vesting and/or exercisability of an Award (or any portion thereof), regardless of any adverse or potentially adverse tax or
other consequences resulting from such acceleration. Unless the Board expressly provides otherwise, however, the following
rules will apply if a Participant’s Employment ceases:
(1) Except as
provided in (3) and (4) below, immediately upon the cessation of the Participant’s Employment each Stock Option and
SAR (or portion thereof) that is then held by the Participant or by the Participant’s permitted transferees, if any, will
cease to be exercisable and will terminate and each other Award that is then held by the Participant or by the Participant’s
permitted transferees, if any, to the extent not then vested will be forfeited.
(2) Subject to (3) and
(4) below, each Stock Option and SAR (or portion thereof) held by the Participant or the Participant’s permitted transferees,
if any, immediately prior to the cessation of the Participant’s Employment, to the extent then vested and exercisable, will remain
exercisable for the lesser of (i) a period of three months following such cessation of Employment or (ii) the period ending
on the latest date on which such Stock Option or SAR could have been exercised without regard to this Section 5(c), and will thereupon
immediately terminate.
(3) Subject to (4) below,
each Stock Option and SAR (or portion thereof) held by a Participant or the Participant’s permitted transferees, if any, immediately
prior to the cessation of the Participant’s Employment due to death or by the Company due to Disability, to the extent then vested
and exercisable, will remain exercisable for the lesser of (i) the one-year period ending on the first anniversary of such cessation
of Employment or (ii) the period ending on the latest date on which such Stock Option or SAR could have been exercised without regard
to this Section 5(c), and will thereupon immediately terminate.
(4) All
Awards (whether or not vested or exercisable) held by a Participant or the Participant’s permitted transferees, if any,
immediately prior to the cessation of the Participant’s Employment will immediately terminate upon such cessation of
Employment if the termination is for Cause or occurs in circumstances that in the determination of the Board would have constituted
grounds for the Participant’s Employment to be terminated for Cause (in each case, without regard to the lapsing of any
required notice or cure periods in connection therewith).
(d) Taxes.
The grant of an Award and the issuance, delivery, vesting and retention of Stock, cash or other property under an Award are conditioned
upon the full satisfaction by the Participant of all tax and other withholding requirements with respect to the Award. The Board will
prescribe rules for the withholding of taxes and other amounts with respect to any Award as it deems necessary. Without limitation
to the foregoing, the Company or any parent or subsidiary of the Company will have the authority and the right to deduct or withhold (by
any means set forth herein or in an Award agreement), or require a Participant to remit to the Company or a parent or subsidiary of the
Company, an amount sufficient to satisfy all U.S. and non-U.S. federal, state and local income tax, social insurance, payroll tax, fringe
benefits tax, payment on account or other tax-related items related to participation in the Plan and any Award hereunder and legally applicable
to the Participant and required by law to be withheld (including, any amount deemed by the Company, in its discretion, to be an appropriate
charge to the Participant even if legally applicable to the Company or any parent or subsidiary of the Company). The Board, in its sole
discretion, may hold back shares of Stock from an Award or permit a Participant to tender previously-owned shares of Stock in satisfaction
of tax or other withholding requirements (but not in excess of the maximum withholding amount consistent with the Award being subject
to equity accounting treatment under the Accounting Rules). Any amounts withheld pursuant to this Section 5(d) will be treated
as though such amounts had been made directly to the Participant. In addition, the Company may, to the extent permitted by law, deduct
any such tax and other withholding amounts from any payment of any kind otherwise due to a Participant from the Company or any parent
or subsidiary of the Company.
(e) Dividends;
Dividend Equivalents. The Board may provide for the payment of amounts (on terms and subject to such restrictions and
conditions established by the Board) in lieu of cash dividends or other cash distributions with respect to Stock subject to an Award
whether or not the holder of such Award is otherwise entitled to share in the actual dividend or distribution in respect of such
Award; provided, however, that (i) dividends or dividend equivalents relating to an Award that, at the dividend payment date,
remains subject to a risk of forfeiture (whether service-based or performance-based) shall be subject to the same risk of forfeiture
as applies to the underlying Award and (ii) no dividends or dividend equivalents shall be payable with respect to Stock Options
or SARs. Any entitlement to dividend equivalents or similar entitlements will be established and administered either consistent with
an exemption from, or in compliance with, the applicable requirements of Section 409A.
6. STOCK
OPTIONS AND SARS.
(a) Generally.
Each Stock Option or SAR Award Agreement will be in such form and will contain such terms and conditions as the Board deems appropriate.
All Stock Options will be NSOs. The terms and conditions of separate Stock Option or SAR Award Agreements need not be identical;
provided, however, that each Award Agreement will conform to (through incorporation of the provisions hereof by reference in the applicable
Award Agreement or otherwise) the substance of each of the following provisions of this Section 6.
(b) Time
and Manner of Exercise. Unless the Board expressly provides otherwise, no Stock Option or SAR will be deemed to have been exercised
until the Board receives a notice of exercise in a form acceptable to the Board that is signed by the appropriate person and accompanied
by any payment required under the Award. The Board may limit or restrict the exercisability of any Stock Option or SAR in its discretion,
including in connection with any Covered Transaction. Any attempt to exercise a Stock Option or SAR by any person other than the Participant
will not be given effect unless the Board has received such evidence as it may require that the person exercising the Award has the right
to do so.
(c) Exercise
Price. The exercise price (or the base value from which appreciation is to be measured) per share of each Award requiring exercise
must be no less than 100% of the Fair Market Value of a share of Stock, determined as of the date of grant of the Award, or such higher
amount as the Board may determine in connection with the grant.
(d) Payment
of Exercise Price. Where the exercise of a Stock Option (or portion thereof) is to be accompanied by a payment, payment of
the exercise price must be made by cash or check acceptable to the Board or, if so permitted by the Board and if legally
permissible, (i) through the delivery of previously acquired unrestricted shares of Stock, or the withholding of unrestricted
shares of Stock otherwise deliverable upon exercise, in either case that have a Fair Market Value equal to the exercise price;
(ii) through a broker-assisted cashless exercise program acceptable to the Board; (iii) by other means acceptable to the
Board; or (iv) by any combination of the foregoing permissible forms of payment. The delivery of previously acquired shares in
payment of the exercise price under clause (i) above may be accomplished either by actual delivery or by constructive delivery
through attestation of ownership, subject to such rules as the Board may prescribe.
(e) Maximum
Term. The maximum term of Stock Options and SARs must not exceed 10 years from the date of grant.
(f) No
Repricing. Except in connection with a corporate transaction involving the Company (which term includes, without limitation,
any stock dividend, stock split, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off,
combination or exchange of shares) or as otherwise contemplated by Section 7 below, the Company may not, without obtaining stockholder
approval, (i) amend the terms of outstanding Stock Options or SARs to reduce the exercise price or base value of such Stock Options
or SARs, (ii) cancel outstanding Stock Options or SARs in exchange for Stock Options or SARs that have an exercise price or base
value that is less than the exercise price or base value of the original Stock Options or SARs, or (iii) cancel outstanding Stock
Options or SARs that have an exercise price or base value greater than the Fair Market Value of a share of Stock on the date of such
cancellation in exchange for cash or other consideration.
7. EFFECT
OF CERTAIN TRANSACTIONS
(a) Mergers, etc.
Except as otherwise expressly provided in an Award agreement or other agreement or by the Board, the following provisions will apply in
the event of a Covered Transaction:
(1) Assumption or
Substitution. If the Covered Transaction is one in which there is an acquiring or surviving entity, the Board may provide for
(A) the assumption or continuation of some or all outstanding Awards or any portion thereof or (B) the grant of new awards in
substitution therefor by the acquiror or survivor or an affiliate of the acquiror or survivor.
(2) Cash-Out
of Awards. Subject to Section 7(a)(5) below, the Board may provide for payment (a “cash-out”), with
respect to some or all Awards or any portion thereof (including only the vested portion thereof, with the unvested portion
terminating as provided in subsection 7(a)(4) below), equal in the case of each applicable Award or portion thereof to the
excess, if any, of (A) the Fair Market Value of one share of Stock multiplied by the number of shares of Stock subject to the
Award or such portion, minus (B) the aggregate exercise or purchase price, if any, of such Award or such portion thereof (or,
in the case of a SAR, the aggregate base value above which appreciation is measured), in each case on such payment and other terms
and subject to such conditions (which need not be the same as the terms and conditions applicable to holders of Stock generally), as
the Board determines, including that any amounts paid in respect of such Award in connection with the Covered Transaction be placed
in escrow or otherwise made subject to such restrictions as the Board deems appropriate. For the avoidance of doubt, if the per
share exercise or purchase price (or base value) of an Award or portion thereof is equal to or greater than the Fair Market Value of
one share of Stock, such Award or portion may be cancelled with no payment due hereunder or otherwise in respect thereof.
(3) Acceleration
of Certain Awards. Subject to Section 7(a)(5) below, the Board may provide that any Award requiring exercise will become
exercisable, in full or in part, and/or that the delivery of any shares of Stock remaining deliverable under any outstanding Award of
Stock Units (including Restricted Stock Units and Performance Awards to the extent consisting of Stock Units) will be accelerated, in
full or in part, in each case on a basis that gives the holder of the Award a reasonable opportunity, as determined by the Board, following
the exercise of the Award or the delivery of the shares, as the case may be, to participate as a stockholder in the Covered Transaction.
(4) Termination
of Awards upon Consummation of Covered Transaction. Except as the Board may otherwise determine, each Award will
automatically terminate (and in the case of outstanding shares of Restricted Stock, will automatically be forfeited) immediately
upon the consummation of the Covered Transaction, other than (A) any Award that is assumed, continued or substituted for
pursuant to Section 7(a)(1) above, and (B) any Award that by its terms, or as a result of action taken by the Board,
continues following the Covered Transaction.
(5) Additional Limitations.
Any share of Stock and any cash or other property or other award delivered pursuant to Section 7(a)(1), Section 7(a)(2) or
Section 7(a)(3) above with respect to an Award may, in the discretion of the Board, contain such restrictions, if any, as the
Board deems appropriate, including to reflect any performance or other vesting conditions to which the Award was subject and that did
not lapse (and were not satisfied) in connection with the Covered Transaction. For purposes of the immediately preceding sentence, a cash-out
under Section 7(a)(2) above or an acceleration under Section 7(a)(3) above will not, in and of itself, be treated
as the lapsing (or satisfaction) of a performance or other vesting condition. In the case of Restricted Stock that does not vest and is
not forfeited in connection with the Covered Transaction, the Board may require that any amounts delivered, exchanged or otherwise paid
in respect of such Stock in connection with the Covered Transaction be placed in escrow or otherwise made subject to such restrictions
as the Board deems appropriate to carry out the intent of the Plan.
(6) Uniform Treatment.
For the avoidance of doubt, the Board need not treat Participants or Awards (or portions thereof) in a uniform manner, and may treat different
Participants and/or Awards differently, in connection with a Covered Transaction.
(b) Changes
in and Distributions with Respect to Stock.
(1) Basic Adjustment
Provisions. In the event of a stock dividend, stock split or combination of shares (including a reverse stock split), recapitalization,
spin-off or other change in the Company’s capital structure that constitutes an equity restructuring within the meaning of the Accounting
Rules or in the case of an extraordinary cash dividend, the Board shall make appropriate adjustments to the Share Pool, and shall
make appropriate adjustments to the number and kind of shares of stock or securities underlying Awards then outstanding or subsequently
granted, any exercise or purchase prices (or base values) relating to Awards and any other provision of Awards affected by such change.
(2) Certain Other
Adjustments. The Board may also make adjustments of the type described in Section 7(b)(1) above to take into account
distributions to stockholders other than those provided for in Sections 7(a) and 7(b)(1), or any other event, if the Board determines
that adjustments are appropriate to avoid distortion in the operation of the Plan or any Award.
(3) Continuing Application
of Plan Terms. References in the Plan to shares of Stock will be construed to include any stock or securities resulting from an
adjustment pursuant to this Section 7.
8. LEGAL
CONDITIONS ON DELIVERY OF STOCK
The Company will not be
obligated to deliver any shares of Stock pursuant to the Plan or to remove any restriction from shares of Stock previously delivered
under the Plan until: (a) the Company is satisfied that all legal matters in connection with the issuance and delivery of such
shares have been addressed and resolved; (b) if the outstanding Stock is at the time of delivery listed on any stock exchange
or national market system, the shares to be delivered have been listed or authorized to be listed on such exchange or system upon
official notice of issuance; and (c) all conditions of the Award have been satisfied or waived. The Company may require, as a
condition to the exercise of an Award or the delivery of shares of Stock under an Award, such representations or agreements as
counsel for the Company may consider appropriate to avoid violation of the Securities Act or any applicable state or non-U.S.
securities law. Any Stock delivered under the Plan will be evidenced in such manner as the Board determines appropriate, including
book-entry registration or delivery of stock certificates. In the event that the Board determines that stock certificates will be
issued in connection with Stock issued under the Plan, the Board may require that such certificates bear an appropriate legend
reflecting any restriction on transfer applicable to such Stock, and the Company may hold the certificates pending the lapse of the
applicable restrictions.
9. AMENDMENT
AND TERMINATION
The Board may at any
time or times amend the Plan or any outstanding Award for any purpose which may at the time be permitted by applicable law, and may
at any time terminate the Plan as to any future grants of Awards; provided, however, that except as otherwise expressly
provided in the Plan or the applicable Award, the Board may not, without the Participant’s consent, alter the terms of an
Award so as to affect materially and adversely the Participant’s rights under the Award, unless the Board expressly reserved
the right to do so in the Plan or at the time the applicable Award was granted. Any amendments to the Plan will be conditioned upon
stockholder approval only to the extent, if any, such approval is required by applicable law (including the Code) or stock exchange
requirements, as determined by the Board. For the avoidance of doubt, without limiting the Board’s rights hereunder, the
following shall not be treated as an amendment requiring a Participant’s consent: (a) adjustment to any Award pursuant to
the terms of Section 7 or Section 12 or (b) any amendment that the Board deems necessary or desirable for the purpose
of complying the Plan or an Award with changes in accounting standards or applicable laws, regulations or rules, including, but not
limited to, Section 409A.
10. OTHER
COMPENSATION ARRANGEMENTS
The existence of the Plan
or the grant of any Award will not affect the right of the Company or any of its subsidiaries to grant any person bonuses or other compensation
in addition to Awards under the Plan.
11. MISCELLANEOUS
(a) Term
of Plan. The Plan shall remain in effect, subject to the right of the Board or the Committee to amend or terminate the Plan at
any time, until the earliest date as of which all Awards granted under the Plan have been satisfied in full or terminated and no shares
of Stock approved for issuance under the Plan remain available to be granted under new Awards. No Awards may be made after such termination
date, but previously granted Awards may remain in effect until such Awards have been satisfied or terminated in accordance with the Plan
and the terms of such Awards.
(b) Rights
Limited. Nothing in the Plan or any Award will be construed as giving any person the right to be granted an Award or to
continued employment or service with the Company or any of its subsidiaries, or any rights as a stockholder except as to shares of
Stock actually delivered under the Plan. The loss of existing or potential profit in any Award will not constitute an element of
damages in the event of a termination of a Participant’s Employment for any reason, even if the termination is in violation of
an obligation of the Company or any of its subsidiaries to the Participant.
(c) Waiver
of Jury Trial. By accepting or being deemed to have accepted an Award under the Plan, each Participant waives (or will be deemed
to have waived), to the maximum extent permitted under applicable law, any right to a trial by jury in any action, proceeding or counterclaim
concerning any rights under the Plan or any Award, or under any amendment, waiver, consent, instrument, document or other agreement delivered
or which in the future may be delivered in connection therewith, and agrees (or will be deemed to have agreed) that any such action, proceedings
or counterclaim will be tried before a court and not before a jury. By accepting or being deemed to have accepted an Award under the Plan,
each Participant certifies that no officer, representative, or attorney of the Company has represented, expressly or otherwise, that the
Company would not, in the event of any action, proceeding or counterclaim, seek to enforce the foregoing waivers. Notwithstanding anything
to the contrary in the Plan, nothing herein is to be construed as limiting the ability of the Company and a Participant to agree to submit
any dispute arising under the terms of the Plan or any Award to binding arbitration or as limiting the ability of the Company to require
any individual to agree to submit such disputes to binding arbitration as a condition of receiving an Award hereunder.
(d) Limitation
of Liability. Notwithstanding anything to the contrary in the Plan or any Award, neither the Company, nor any of its subsidiaries,
nor the Board, nor any person acting on behalf of the Company, any of its subsidiaries, or the Board, will be liable to any Participant,
to any permitted transferee, to the estate or beneficiary of any Participant or any permitted transferee, or to any other person by reason
of any acceleration of income, any additional tax, or any penalty, interest or other liability asserted by reason of the failure of an
Award to satisfy the requirements of Section 409A or by reason of Section 4999 of the Code, or otherwise asserted with respect
to any Award.
(e) Unfunded
Plan. The Company’s obligations under the Plan are unfunded, and no Participant will have any right to specific assets of
the Company in respect of any Award. Participants will be general unsecured creditors of the Company with respect to any amounts due or
payable under the Plan.
(f) Compliance with Section 409A.
(1) Without limiting the
generality of Section 11(d) hereof, each Award will contain such terms as the Board determines and will be construed and administered
such that the Award either qualifies for an exemption from the requirements of Section 409A or satisfies such requirements.
(2) Notwithstanding anything
to the contrary in the Plan or any Award agreement, the Board may unilaterally amend, modify or terminate the Plan or any outstanding
Award, including but not limited to changing the form of the Award, if the Board determines that such amendment, modification or termination
is necessary or desirable to avoid the imposition of an additional tax, interest or penalty under Section 409A.
(3) If
a Participant is determined on the date of the Participant’s “separation from service,” as defined in
Section 409A(a)(2)A)(i) of the Code, from the Company to be a “specified employee” within the meaning of that
term under Section 409A(a)(2)(B) of the Code with respect to the Company, then, with regard to any payment that is
considered nonqualified deferred compensation under and subject to Section 409A and that is payable on account of the
Participant’s “separation from service”, such payment will be made or provided on the date that is the earlier of
(i) the first business day following the expiration of the six-month period measured from the date of such “separation
from service” and (ii) the date of the Participant’s death (the “Delay Period”). Upon the expiration of
the Delay Period, all payments delayed pursuant to this Section 11(f)(3) (whether they would have otherwise been payable
in a single lump sum or in installments in the absence of such delay) will be paid, without interest, on the first business day
following the expiration of the Delay Period in a lump sum and any remaining payments due under the Award will be paid in accordance
with the normal payment dates specified for them in the applicable Award agreement.
(4) For purposes of Section 409A,
each payment in a series of payments made under the Plan or any Award will be treated as a separate payment.
(5) With
regard to any payment considered to be nonqualified deferred compensation under Section 409A, to the extent applicable, that is
payable upon a change in control of the Company or other similar event, to the extent required to avoid the imposition of an additional
tax, interest or penalty under Section 409A, no amount will be payable unless such change in control constitutes a “change
in control event” within the meaning of Section 1.409A-3(i)(5) of the Treasury Regulations.
(6) Unless
otherwise expressly provided for in an Award Agreement, the Plan and Award Agreements will be interpreted to the greatest extent
possible in a manner that makes the Plan and the Awards granted hereunder exempt from Section 409A, and, to the extent not so
exempt, in compliance with Section 409A. If the Board determines that any Award granted hereunder is not exempt from and is
therefore subject to Section 409A, the Award Agreement evidencing such Award will incorporate the terms and conditions
necessary to avoid the consequences specified in Section 409A(a)(1) of the Code, and to the extent an Award Agreement is
silent on terms necessary for compliance, such terms are hereby incorporated by reference into the Award Agreement. Notwithstanding
anything to the contrary in this Plan (and unless the Award Agreement specifically provides otherwise), if the shares of Stock are
publicly traded, and if a Participant holding an Award that constitutes “deferred compensation” under Section 409A
is a “specified employee” for purposes of Section 409A, no distribution or payment of any amount that is due
because of a “separation from service” (as defined in Section 409A without regard to alternative definitions
thereunder) will be issued or paid before the date that is six (6) months following the date of such Participant’s
“separation from service” or, if earlier, the date of the Participant’s death, unless such distribution or payment
can be made in a manner that complies with Section 409A, and any amounts so deferred will be paid in a lump sum on the day
after such six (6) month period elapses, with the balance paid thereafter on the original schedule.
(g) Recovery
of Compensation. The Board may provide in any case that any outstanding Award (whether or not vested or exercisable), the
proceeds from the exercise or disposition of any Award or Stock acquired under any Award, and any other amounts received in respect
of any Award or Stock acquired under any Award will be subject to forfeiture and disgorgement to the Company, with interest and
other related earnings, if the Participant to whom the Award was granted is not in compliance with any provision of the Plan or any
applicable Award, or any non-competition, non-solicitation, no-hire, non-disparagement, confidentiality, invention assignment, or
other restrictive covenant by which the Participant is bound. Each Award will be subject to any policy of the Company or any of its
subsidiaries that relates to trading on non-public information and permitted transactions with respect to shares of Stock, including
limitations on hedging and pledging. In addition, each Award will be subject to the Company’s clawback policy, as in effect
from time to time, and any other policy of the Company or any of its affiliates that provides for forfeiture, disgorgement, or
clawback with respect to incentive compensation that includes Awards under the Plan and will be further subject to forfeiture and
disgorgement to the extent required by law or applicable stock exchange listing standards, including, without limitation,
Section 10D of the Exchange Act. Each Participant, by accepting or being deemed to have accepted an Award under the Plan,
agrees (or will be deemed to have agreed) to the terms of this Section 11(g), the Company’s clawback policy and any other
clawback, recoupment or similar policy of the Company or any of its subsidiaries and further agrees (or will be deemed to have
further agreed) to cooperate fully with the Board, and to cause any and all permitted transferees of the Participant to cooperate
fully with the Board, to effectuate any forfeiture or disgorgement described in this Section 11(g). Neither the Board nor the
Company nor any other person, other than the Participant and the Participant’s permitted transferees, if any, will be
responsible for any adverse tax or other consequences to a Participant or the Participant’s permitted transferees, if any,
that may arise in connection with this Section 11(g).
12. ESTABLISHMENT
OF SUB-PLANS
The Board may at any time
and from time to time (including before or after an Award is granted) establish, adopt, or revise any rules and regulations as it
may deem necessary or advisable to administer the Plan for Participants based outside of the U.S. and/or subject to the laws of countries
other than the U.S., including by establishing one or more sub-plans, supplements or appendices under the Plan or any Award agreement
for the purpose of complying or facilitating compliance with non-U.S. laws or taking advantage of tax favorable treatment or for any other
legal or administrative reason determined by the Board. Any such sub-plan, supplement or appendix may contain, in each case, (a) such
limitations on the Board’s discretion under the Plan and (b) such additional or different terms and conditions, as the Board
deems necessary or desirable and will be deemed to be part of the Plan but will apply only to Participants within the group to which the
sub-plan, supplement or appendix applies (as determined by the Board); provided, however, that no sub-plan, supplement or appendix,
rule or regulation established pursuant to this provision shall increase Share Pool.
13. GOVERNING
LAW
(a) Certain
Requirements of Corporate Law. Awards and shares of Stock will be granted, issued and administered consistent with the requirements
of applicable Delaware law relating to the issuance of stock and the consideration to be received therefor, and with the applicable requirements
of the stock exchanges or other trading systems on which the Stock is listed or entered for trading, in each case as determined by the
Board.
(b) Other
Matters. Except as otherwise provided by the express terms of an Award agreement, under a sub-plan described in Section 12
or as provided in Section 13(a) above, the domestic substantive laws of the State of Delaware govern the provisions of the Plan
and of Awards under the Plan and all claims or disputes arising out of or based upon the Plan or any Award under the Plan or relating
to the subject matter hereof or thereof without giving effect to any choice or conflict of laws provision or rule that would cause
the application of the domestic substantive laws of any other jurisdiction.
(c) Jurisdiction.
Subject to Section 11(c) and except as may be expressly set forth in an Award agreement, by accepting (or being deemed to
have accepted) an Award, each Participant agrees or will be deemed to have agreed to (i) submit irrevocably and
unconditionally to the jurisdiction of the federal and state courts located within the geographic boundaries of the United States
District Court for the District of Delaware for the purpose of any suit, action or other proceeding arising out of or based upon the
Plan or any Award; (ii) not commence any suit, action or other proceeding arising out of or based upon the Plan or any Award,
except in the federal and state courts located within the geographic boundaries of the United States District Court for the District
of Delaware; and (iii) waive, and not assert, by way of motion as a defense or otherwise, in any such suit, action or
proceeding, any claim that the Participant is not subject personally to the jurisdiction of the above-named courts that the
Participant’s property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is improper or that the Plan or any Award or the subject matter
thereof may not be enforced in or by such court.
EXHIBIT A
DEFINITION OF TERMS
The following terms, when used in the Plan, have
the meanings and are subject to the provisions set forth below:
“Accounting Rules”: Financial Accounting
Standards Board Accounting Standards Codification Topic 718, or any successor provision.
“Award”: Any or a combination of the following:
| (v) | Stock Units, including Restricted Stock Units. |
| (vii) | Awards (other than Awards described
in (i) through (vii) above) that are convertible into or otherwise based on Stock. |
“Award Agreement”:
means a written agreement between the Company and a Participant evidencing the terms and conditions of an Award.2
“Board”: The board of directors of the
Company.
“Cause”:
In the case of any Participant who is party to an employment agreement, change of control, severance-benefit or similar agreement
that contains a definition of “Cause,” the definition set forth in such agreement applies with respect to such
Participant for purposes of the Plan for so long as such agreement is in effect. In every other case, “Cause” means, as
determined by the Board, termination of a Participant’s employment or other service because of: (i) the
Participant’s being charged with a felony (or similar crime in a foreign jurisdiction) or crime of dishonesty or moral
turpitude, (ii) insubordination, gross negligence or willful misconduct in the performance of the Participant’s duties,
(iii) illegal use of controlled substances during the performance of the Participant’s duties or that adversely affects
the reputation or best interests of the Company or any of its subsidiaries, (iv) the Participant’s commission of fraud,
embezzlement, misappropriation of funds, breach of fiduciary duty or a material act of dishonesty against the Company or any of its
subsidiaries, (v) material breach by the Participant of any written employment, non-competition, non-solicitation,
confidentiality or similar agreement with the Company or any of its subsidiaries, (vi) the Participant’s material
noncompliance with Company policy or code of conduct, (vii) the Participant’s persistent neglect of duty or chronic
unapproved absenteeism, (viii) the Participant’s willful and deliberate failure in the performance of the
Participant’s duties in any material respect, in each case, as determined in good faith by the Compensation Committee in its
sole discretion, or (ix) any other conduct by a Participant that could be expected to be harmful to the business, interests or
reputation of the Company.
“Code”:
The U.S. Internal Revenue Code of 1986, as from time to time amended and in effect, or any successor statute as from time to time in effect,
including any applicable regulations and formal guidance issued thereunder.
“Committee”:
means a committee of one or more Independent Directors to whom authority has been delegated by the Board in accordance with Section 2(c).
“Covered Transaction”:
Any of (i) a consolidation, merger or similar transaction or series of related transactions, including a sale or other disposition
of stock, in which the Company is not the surviving corporation or which results in the acquisition of more than 50% of the Company’s
then outstanding common stock by a single Person or entity or by a group of Persons and/or entities acting in concert, (ii) a sale
or transfer of all or substantially all the Company’s assets, or (iii) a dissolution or liquidation of the Company. Where a
Covered Transaction involves a tender offer that is reasonably expected to be followed by a merger described in clause (i) (as determined
by the Board), the Covered Transaction will be deemed to have occurred upon consummation of the tender offer. To the extent required for
compliance with Section 409A, in no event will an event be deemed a Covered Transaction if such transaction is not also a “change
in the ownership or effective control of” the Company or “a change in the ownership of a substantial portion of the assets
of” the Company as determined under Treasury Regulation Section 1.409A-3(i)(5) (without regard to any alternative definition
thereunder).
“Director”: A member of the Board who
is not an Employee.
“Disability”:
In the case of any Participant who is party to an employment, change of control, severance-benefit or similar agreement that contains
a definition of “Disability” (or a corollary term), the definition set forth in such agreement applies with respect to such
Participant for purposes of the Plan for so long as such agreement is in effect. In every other case, “Disability” means,
as determined by the Board, absence from work due to a disability for a period in excess of 90 days in any 12-month period that would
entitle the Participant to receive benefits under the Company’s long-term disability program as in effect from time to time (if
the Participant were a participant in such program).
“Effective Date”: June 14, 2024.
“Employee”: Any person who is employed
by the Company or any of its subsidiaries.
“Employment”:
A Participant’s employment or other service relationship with the Company or any of its subsidiaries. Employment will be
deemed to continue, unless the Board otherwise determines, so long as the Participant is employed by the Company or any of its
subsidiaries. If a Participant’s employment or other service relationship is with any subsidiary of the Company and that
entity ceases to be a subsidiary of the Company, the Participant’s Employment will be deemed to have terminated when the
entity ceases to be a subsidiary of the Company unless the Participant transfers Employment to the Company or one of its remaining
subsidiaries. Notwithstanding the foregoing, in construing the provisions of any Award relating to the payment of
“nonqualified deferred compensation” (subject to Section 409A) upon a termination or cessation of Employment,
references to termination or cessation of employment, separation from service, retirement or similar or correlative terms will be
construed to require a “separation from service” (as that term is defined in Section 1.409A-1(h) of the
Treasury Regulations, after giving effect to the presumptions contained therein) from the Company and from all other corporations
and trades or businesses, if any, that would be treated as a single “service recipient” with the Company under
Section 1.409A-1(h)(3) of the Treasury Regulations. The Company may, but need not, elect in writing, subject to the
applicable limitations under Section 409A, any of the special elective rules prescribed in
Section 1.409A-1(h) of the Treasury Regulations for purposes of determining whether a “separation from
service” has occurred. Any such written election will be deemed a part of the Plan.
“Exchange Act”: The Securities Exchange
Act of 1934, as amended.
“Fair Market Value”:
As of a particular date, (i) the closing price for a share of Stock reported on the Nasdaq Global Stock Market (or any other national
securities exchange on which the Stock is then listed) for that date or, if no closing price is reported for that date, the closing price
on the immediately preceding date on which a closing price was reported or (ii) in the event that the Stock is not traded on a national
securities exchange, the fair market value of a share of Stock determined by the Board consistent with the rules of Section 409A
to the extent applicable.
“NSO”:
A Stock Option that is not intended to be an “incentive stock option” within the meaning of Section 422 of the Code.
“Participant”:
means a person to whom an Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Award.
“Performance Award”:
An Award subject to performance vesting conditions, which may include Performance Criteria.
“Performance
Criteria”: Specified criteria, other than the mere continuation of Employment or the mere passage of time, the
satisfaction of which is a condition for the grant, exercisability, vesting or full enjoyment of an Award. A Performance Criterion
and any targets with respect thereto need not be based upon an increase, a positive or improved result or avoidance of loss and may
be applied to a Participant individually, or to a business unit or division of the Company or to the Company as a whole and may
relate to any or any combination of any criterion or criteria determined by the Board (measured either absolutely or comparatively
(including, without limitation, by reference to an index or indices or the performance of one or more companies) and determined
either on a consolidated basis or, as the context permits, on a divisional, subsidiary, line of business, project or geographical
basis or in combinations thereof and subject to such adjustments, if any, as the Board specifies. A Performance Criterion may also
be based on individual performance and/or subjective performance criteria. The Board may provide that one or more of the Performance
Criteria applicable to such Award will be adjusted in a manner to reflect events (for example, but without limitation, acquisitions
or dispositions) occurring during the performance period that affect the applicable Performance Criterion or Criteria. Performance
Criteria may be based upon one or more of the following, without limitation, as determined by the Board; provided, however, that the
Board retains discretion to select any other Performance Criteria whether or not listed herein: (i) revenue; (ii) sales;
(iii) expenses; (iv) operating income; (v) gross margin; (vi) operating margin; (vii) earnings before any
one or more of: stock-based compensation expense, interest, taxes, depreciation and amortization; (viii) pre-tax profit;
(ix) net operating income; (x) net income; (xi) economic value added; (xii) free cash flow;
(xiii) operating cash flow; (xiv) balance of cash, cash equivalents and marketable securities; (xv) stock price;
(xvi) earnings per share; (xvii) return on stockholder equity; (xviii) return on capital; (xix) return on
assets; (xx) return on investment; (xxi) total stockholder return; (xxii) employee satisfaction;
(xxiii) employee retention; (xxiv) market share; (xxv) customer satisfaction; (xxvi) product development;
(xxvii) research and development expenses; (xxviii) completion of an identified special project; (xxix) completion of
a joint venture or other corporate transaction; and (xxx) personal performance objectives established for an individual
Participant or group of Participants.
“Person”: Any individual, entity or
group within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act, other than employee benefit plans
sponsored or maintained by the Company and by entities controlled by the Company or an underwriter, initial purchaser or placement
agent temporarily holding the capital stock of the Company pursuant to a registered public offering.
“Restricted Stock”:
Stock subject to restrictions requiring that it be forfeited, redelivered or offered for sale to the Company if specified performance
or other vesting conditions are not satisfied.
“Restricted Stock
Unit”: A Stock Unit that is, or as to which the delivery of Stock or of cash in lieu of Stock is, subject to the satisfaction
of specified performance or other vesting conditions.
“Rule 16b-3”:
means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time to time.
“SAR”:
A right entitling the holder upon exercise to receive an amount (payable in cash or in shares of Stock of equivalent value) equal to the
excess of the Fair Market Value of the shares of Stock subject to the right over the base value from which appreciation under the SAR
is to be measured.
“Section 409A”: Section 409A
of the Code.
“Securities Act”: means the
Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share Pool”: means the number
of shares of Stock available for issuance under the Plan as set forth in Section 3(a).
“Stock”: The Company’s Common Stock,
par value $0.0001 per share.
“Stock Option”: A NSO entitling
the holder to acquire shares of Stock upon payment of the exercise price.
“Stock Unit”: An unfunded and
unsecured promise, denominated in shares of Stock, to deliver Stock or cash measured by the value of Stock in the future.
“Unrestricted Stock”: Stock not subject
to any restrictions under the terms of the Award.
Exhibit 99.2
SHARECARE, INC.
INDUCEMENT PERFORMANCE
RESTRICTED STOCK UNIT GRANT NOTICE
2024-2026 PERFORMANCE
PERIOD
2024 INDUCEMENT PLAN
As an inducement for Grantee to join and become
employed by Sharecare, Inc., a Delaware corporation (the “Company”), the Company hereby grants to Grantee
an inducement grant of the number of restricted stock units (“RSUs”) set forth below, each of which represents the
right to receive one share of Stock without any payment for such shares. This award is granted as an “inducement” award under
Nasdaq Listing Rule 5635(c)(4). The RSUs are being awarded under the Company’s 2024 Inducement Plan (the “Plan”). Notwithstanding the foregoing and anything to the contrary herein, the RSUs shall be subject to and governed by the terms and conditions
of the Plan.
This award is subject to all of the terms and
conditions as set forth in this Inducement Performance Restricted Stock Unit Grant Notice (this “ Notice”), in the
corresponding Inducement Performance Restricted Stock Unit Agreement and the Plan, which are attached hereto and incorporated herein
in their entirety. Capitalized terms not explicitly defined herein but defined in the Plan or the Inducement Performance Restricted Stock
Unit Agreement will have the same definitions as in the Plan or the Inducement Performance Restricted Stock Unit Agreement. If there
is any conflict between the terms in this Notice, Exhibit 1 to this Notice, the corresponding Inducement Performance Restricted
Stock Unit Agreement and the Plan, then such conflict or inconsistency shall be resolved by giving such documents precedence in the following
order: Exhibit 1, this Notice, the corresponding Inducement Performance Restricted Stock Unit Agreement, and then the Plan.
| |
Grantee |
[GRANTEE NAME] |
|
| |
Date of Grant: |
[GRANT DATE] |
|
| |
Number of RSUs: |
[TOTAL TARGET SHARES] |
|
| Type of Grant: |
Performance Restricted Stock Units |
| |
|
| Vesting Schedule: |
This award shall vest pursuant to the schedule set forth in Exhibit 1, which is attached hereto
and incorporated herein in its entirety. |
| Additional Terms/Acknowledgements: |
Grantee acknowledges receipt of, and understands and agrees
to, this Notice, the corresponding Inducement Performance Restricted Stock Unit Agreement and the Plan. Grantee acknowledges and
agrees that this Notice and the corresponding Inducement Performance Restricted Stock Unit Agreement may not be modified, amended
or revised except as provided in the Plan. Grantee further acknowledges that as of the Date of Grant, this Notice, the corresponding
Inducement Performance Restricted Stock Unit Agreement, and the Plan set forth the entire understanding between Grantee and the Company
regarding this RSU award and supersede all prior oral and written agreements, promises and/or representations on that subject with
the exception of the following agreements only. |
By accepting these RSUs, you consent to receive
such documents by electronic delivery and to participate through an on-line or electronic system established and maintained by the Administrator
or another third party designated by the Administrator.
| Sharecare, Inc. |
|
| |
|
| |
|
| By: [NAME] |
|
| Title: |
|
| |
|
| Grantee: |
|
| |
|
| |
|
| Date: |
|
Attachments: Inducement Performance Restricted Stock Unit Agreement;
2024 Inducement Plan
Exhibit 1
Vesting Schedule 1
1 Note to Draft: To
insert vesting schedule and performance metrics, including any applicable termination vesting conditions.
Attachment 1
Inducement Performance Restricted Stock Unit Agreement
SHARECARE, INC.
INDUCEMENT PERFORMANCE
RESTRICTED STOCK UNIT AGREEMENT
2024 INDUCEMENT PLAN
Pursuant to your Inducement Performance Restricted
Stock Unit Grant Notice (“Grant Notice”) and this Inducement Performance Restricted Stock Unit Agreement (this “Agreement”),
Sharecare, Inc., a Delaware corporation (the “ Company”) has granted you the number of RSUs indicated in your
Grant Notice, each of which represents the right to receive one share of Stock. The RSUs are granted to you effective as of the date
of grant set forth in the Grant Notice (the “Date of Grant”). The RSUs have been granted as an “inducement”
award under Nasdaq Listing Rule 5635(c)(4). The RSUs are being awarded under the Company’s 2024 Inducement Plan (the “Plan”).
Notwithstanding the foregoing and anything to the contrary herein, the RSUs shall be subject to and governed by the terms and conditions
of the Plan. If there is any conflict between the terms in the Grant Notice, Exhibit 1 to the Grant Notice, this Agreement and the
Plan, then such conflict shall be resolved by giving such documents precedence in the following order: Exhibit 1, the Grant Notice,
this Agreement, and then the Plan. Capitalized terms not explicitly defined in this Agreement or in the Grant Notice but defined in the
Plan will have the same meanings as in the Plan.
The details of the RSUs, in addition to those
set forth in the Grant Notice and the Plan, are as follows:
| 1. | Vesting; No Shareholder Rights |
The RSUs will vest as provided in your
Grant Notice. Vesting will cease upon the termination of your Employment with the Company and its subsidiaries, except as may be provided
otherwise in the Vesting Schedule in Exhibit 1 to your Grant Notice or in an employment or other written agreement between you and
the Company. You will not be deemed to be the holder of, or have any of the rights of a stockholder with respect to, any RSUs unless
and until they have vested and the Administrator has issued and delivered shares of Stock to you and your name shall have been entered
as a stockholder of record on the books of the Company.
The number of RSUs is set forth in
your Grant Notice and will be adjusted in the event of changes in capital structure and similar events as provided in Section 7
of the Plan.
Subject to Section 8, each RSU
will be settled by delivery to you of one share of Stock within thirty (30) days following vesting. The Administrator may, in its sole
discretion, deliver cash in lieu of all or any portion of the shares of Stock otherwise deliverable in respect of the RSUs in an amount
equal to such number of shares of Stock multiplied by the Fair Market Value of a share of Stock on the date when such shares would otherwise
have been issued, as determined by the Administrator.
| 4. | Securities Law Compliance |
In no event shall the Company deliver
shares of Stock upon vesting or settlement of the RSUs unless such shares are then registered under the Securities Act of 1933, as amended
(the “Securities Act”), and applicable state securities law or, if not registered, the Administrator has determined
that your exercise and the issuance of the shares would be exempt from the registration requirements of the Securities Act and applicable
state securities laws. The issuance of shares of Stock is also subject to compliance with all other applicable laws and regulations governing
your RSUs, including the requirements of any stock exchange on which the Stock may be listed, and you may not be issued shares of Stock
if the Administrator determines that such issuance would not be in material compliance with such laws, regulations and listing requirements.
| (a) | In considering the acceptance of this
award of RSUs, you understand, acknowledge, agree and hereby stipulate that you should use
the same independent investment judgment that you would use in making other investments in
corporate securities. Among other things, stock prices will fluctuate over any reasonable
period of time and the price of Stock may go down as well as up. No guarantees are made as
to the future prospects of the Company or the Stock. No representations are made by the Administrator
or the Company. |
| (b) | Notwithstanding
anything to the contrary in this Agreement, the Stock issued under this Agreement and all
amounts that may be received by you in connection with any disposition of any such Stock
shall be subject to applicable recoupment, “clawback” and similar provisions
under law regulation and stock exchange listing requirement, as well as any recoupment, “clawback”
and similar policies of the Company that may be adopted at any time and from time to time
in accordance with Section 6(a)(5) of the Plan. [By accepting the RSUs, you are
deemed to have acknowledged and consented to the Company’s “clawback” policy
and the Company’s application, implementation and enforcement of any recoupment, clawback
or similar policy adopted by the board of directors of the Company or committee thereof,
whether adopted prior to or following the Date of Grant, and any provision of applicable
law or stock exchange listing requirement relating to reduction cancellation, forfeiture
or recoupment, and to have agreed that the Company may take such actions as may be necessary
to effectuate any such policy, requirement or applicable law, without further consideration
or action.] 2 |
2 Note to Draft: Consider
inclusion in light of new clawback policy.
The RSUs are not assignable or transferable,
except by will or by the laws of descent and distribution. Without limiting the generality of the foregoing, the RSUs may not be sold,
assigned, transferred or otherwise disposed of, or pledged or hypothecated in any manner (whether by operation of law or otherwise),
and shall not be subject to execution, attachment or other process. Any assignment, transfer, sale, pledge, hypothecation or other disposition
of the RSUs or any attempt to make any such levy of execution, attachment or other process will cause the RSUs to terminate immediately.
| 7. | RSUs not a Service Contract |
The RSUs are not an employment or service
contract, and nothing in the RSUs will be deemed to create in any way whatsoever any obligation on your part to continue in the employ
or service of the Company or an affiliate, or of the Company or an affiliate to continue your employment or service. In addition, nothing
in the RSUs will obligate the Company or an affiliate, their respective stockholders, boards of directors, officers or employees to continue
any relationship that you might have as a member of the Company’s Board or a consultant for the Company or an affiliate.
| 8. | Withholding Obligations |
| (a) | At the time when the RSUs vest, in whole
or in part, and at any time thereafter as requested by the Administrator, you hereby agree
to make adequate provision for any sums required to satisfy the federal, state, local and
foreign tax withholding obligations of the Company or an affiliate, if any, which arise in
connection with such vesting and settlement of the RSUs. The Administrator, in its sole discretion,
may (but is not required to) hold back shares of Stock otherwise issuable on settlement of
the RSUs or permit you to tender previously-owned shares of Stock in satisfaction of tax
or other withholding requirements (but not in excess of the maximum withholding amount consistent
with the RSUs being subject to equity accounting treatment under the Accounting Rules). In
addition, the Administrator may (but is not required to), to the extent permitted by law,
deduct any such tax and other withholding amounts from any payment of any kind otherwise
due to you from the Company or any parent or subsidiary of the Company. |
| (b) | The Administrator and the Company assume
no responsibility for individual income taxes, penalties or interest related to grant, vesting
or settlement of any RSU. Neither the Administrator, the Company nor any affiliate makes
any representation or undertaking regarding the treatment of any tax withholding in connection
with the grant, vesting or settlement of the RSUs. You should consult with your personal
tax advisor regarding the tax ramifications, if any, which result from receipt of the RSUs,
the subsequent issuance, if any, of Stock on settlement of the RSUs, and the subsequent disposition
of any such Stock. You acknowledge that the Administrator or the Company may be required
to withhold federal, state and/or local taxes in connection with the vesting and/or settlement
of the RSUs. No RSUs will vest or be settled unless the tax withholding obligations of
the Company and/or any affiliate are satisfied. The Administrator will have no obligation
to issue a certificate for Stock in respect of the RSUs unless the obligations set forth
in this Section 8 are satisfied. |
| 9. | Section 409A; Tax Consequences |
It is the Administrator’s and
the Company’s intent that payments under this Agreement and Grant Notice shall be exempt from Section 409A of the Code (“Section 409A”)
to the extent applicable, and that this Agreement be administered accordingly. Notwithstanding anything to the contrary contained in
this Agreement, the Grant Notice or any employment agreement you have entered into with the Company, to the extent that any payment or
benefit under this Agreement is determined by the Administrator to constitute “nonqualified deferred compensation” subject
to Section 409A and is payable to you by reason of termination of your employment, then (a) such payment or benefit shall be
made or provided to you only upon a “separation from service,” as defined for purposes of Section 409A under applicable
regulations, from the Company and (b) if you are a “specified employee” (within the meaning of Section 409A and
as determined by the Administrator), such payment or benefit shall not be made or provided before the date that is six months after the
date of your separation from service from the Company (or your earlier death). Each payment under this Agreement shall be treated as
a separate payment under Section 409A. You hereby agree that the Administrator and the Company do not have a duty to design or administer
the Plan or its other compensation programs in a manner that minimizes your tax liabilities. You will not make any claim against the
Administrator, the Company, or any of its officers, directors, employees or affiliates related to tax liabilities arising from the RSUs
or your other compensation.
Any notices provided for in the Agreement
or the Plan will be given in writing and will be deemed effectively given upon receipt. The Administrator may, in its sole discretion,
decide to deliver any documents related to these RSUs by electronic means or to request your consent to participate by electronic means.
By accepting these RSUs, you consent to receive such documents by electronic delivery and to participate through an on-line or electronic
system established and maintained by the Administrator or another third party designated by the Administrator.
In the event that the Administrator
provides you (or anyone acting on your behalf) with summary or other information concerning, including or otherwise relating to your
rights or benefits under this Agreement (including, without limitation, the RSUs and any vesting thereof), such summary or other information
shall in all cases be qualified in its entirety by Exhibit 1, the Grant Notice, this Agreement and the Plan and, unless it explicitly
states otherwise and is signed by an officer of the Company, shall not constitute an amendment or other modification hereto.
You understand, acknowledge, agree
and hereby stipulate that: (a) you are executing this Agreement voluntarily and without any duress or undue influence by the Company
or anyone else; (b) the RSUs are intended to be consideration in exchange for the promises and covenants set forth in this
Agreement; (c) you have carefully read, considered and understand all of the provisions of this Agreement and the Company’s
policies reflected in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged;
(d) you have asked any questions needed for you to understand the terms, consequences and binding effect of this Agreement and you
fully understand them; (e) you were provided an opportunity to seek the advice of an attorney and/or a tax professional of
your choice before accepting this award of RSUs and (f) the obligations and restrictions set forth in this Agreement are fair and
reasonable.
Exhibit 99.3
SHARECARE, INC.
INDUCEMENT RESTRICTED
STOCK UNIT GRANT NOTICE
2024 INDUCEMENT PLAN
As an inducement for Grantee to join and become
employed by Sharecare, Inc., a Delaware corporation (the “Company”), the Company hereby grants to Grantee
an inducement grant of the number of restricted stock units (“RSUs”) set forth below, each of which represents the
right to receive one share of Stock without any payment for such shares. This award is granted as an “inducement” award under
Nasdaq Listing Rule 5635(c)(4). The RSUs are being awarded under the Company’s 2024 Inducement Plan (the “Plan”). Notwithstanding the foregoing and anything to the contrary herein, the RSUs shall be subject to and governed by the terms and conditions
of the Plan.
This award is subject to all of the terms and
conditions as set forth in this Inducement Restricted Stock Unit Grant Notice (this “Notice”), in the corresponding
Inducement Restricted Stock Unit Agreement and the Plan, which are attached hereto and incorporated herein in their entirety. Capitalized
terms not explicitly defined herein but defined in the Plan or the Inducement Restricted Stock Unit Agreement will have the same definitions
as in the Plan or the Inducement Restricted Stock Unit Agreement. If there is any conflict between the terms in this Notice, Exhibit 1
to this Notice, the corresponding Inducement Restricted Stock Unit Agreement and the Plan, then such conflict or inconsistency shall
be resolved by giving such documents precedence in the following order: Exhibit 1, this Notice, the corresponding Inducement Restricted
Stock Unit Agreement, and then the Plan.
| |
Grantee |
[GRANTEE NAME] |
|
| |
Date of Grant: |
[GRANT DATE] |
|
| |
Number of RSUs: |
[TOTAL TARGET SHARES] |
|
| Type of Grant: |
Restricted Stock Units |
| |
|
| Vesting Schedule: |
This award shall vest pursuant to the schedule set forth in Exhibit 1, which is attached hereto
and incorporated herein in its entirety. |
| Additional Terms/Acknowledgements: |
Grantee acknowledges receipt of, and understands and agrees
to, this Notice, the corresponding Inducement Restricted Stock Unit Agreement and the Plan. Grantee acknowledges and agrees that
this Notice and the corresponding Inducement Restricted Stock Unit Agreement may not be modified, amended or revised except as provided
in the Plan. Grantee further acknowledges that as of the Date of Grant, this Notice, the corresponding Inducement Restricted Stock
Unit Agreement, and the Plan set forth the entire understanding between Grantee and the Company regarding this RSU award and supersede
all prior oral and written agreements, promises and/or representations on that subject with the exception of the following agreements
only. |
By accepting these RSUs, you consent to receive
such documents by electronic delivery and to participate through an on- line or electronic system established and maintained by the Administrator
or another third party designated by the Administrator.
| Sharecare, Inc. |
|
| |
|
| |
|
| By: [NAME] |
|
| Title |
|
| |
|
| Grantee |
|
| |
|
| |
|
| Date |
|
Attachments:
Inducement Restricted Stock Unit Agreement; 2024 Inducement Plan
Exhibit 1
Vesting
Schedule 1
| 1. | [1/12th
of the RSUs (rounded up to the nearest whole number of RSUs, as necessary) will vest
quarterly following the Date of Grant set forth in your Notice, beginning on March 31,
2024 (each, a “Vesting Date”), so that 100% of your RSUs are vested on
December 31, 2026, subject to your continued Employment with the Company and its Subsidiaries
through the applicable Vesting Dates. Except as set forth in (2) below, all unvested
RSUs will be forfeited upon your termination of Employment with the Company and its Subsidiaries.][25%
of the RSUs (rounded up to the nearest whole number of RSUs, as necessary) will vest on the
first anniversary of [the Date of Grant set forth in your Notice] and 25% will vest on each
of the three anniversaries thereafter (each, a “Vesting Date”), subject
to your continued Employment with the Company and its Subsidiaries through the applicable
Vesting Dates. Except as set forth in (2) below, all unvested RSUs will be forfeited
upon your termination of Employment with the Company and its Subsidiaries.] |
1
Note to Draft: To confirm/insert vesting schedule, including any applicable termination
vesting conditions.
Attachment 1
Inducement Restricted Stock Unit Agreement
SHARECARE, INC.
INDUCEMENT RESTRICTED
STOCK UNIT AGREEMENT
2024 INDUCEMENT PLAN
Pursuant to your Inducement Restricted Stock
Unit Grant Notice (“Grant Notice”) and this Inducement Restricted Stock Unit Agreement (this “Agreement”),
Sharecare, Inc., a Delaware corporation (the “Company”) has granted you the number of RSUs indicated in your
Grant Notice, each of which represents the right to receive one share of Stock. The RSUs are granted to you effective as of the date
of grant set forth in the Grant Notice (the “Date of Grant”). The RSUs have been granted as an “inducement”
award under Nasdaq Listing Rule 5635(c)(4). The RSUs are being awarded under the Company’s 2024 Inducement Plan (the “Plan”).
Notwithstanding the foregoing and anything to the contrary herein, the RSUs shall be subject to and governed by the terms and conditions
of the Plan. If there is any conflict between the terms in the Grant Notice, Exhibit 1 to the Grant Notice, this Agreement and the
Plan, then such conflict shall be resolved by giving such documents precedence in the following order: Exhibit 1, the Grant Notice,
this Agreement, and then the Plan. Capitalized terms not explicitly defined in this Agreement or in the Grant Notice but defined in the
Plan will have the same meanings as in the Plan.
The details of the RSUs, in addition to those
set forth in the Grant Notice and the Plan, are as follows:
| 1. | Vesting; No Shareholder Rights |
The RSUs will vest as provided in your
Grant Notice. Vesting will cease upon the termination of your Employment with the Company and its subsidiaries, except as may be provided
otherwise in the Vesting Schedule in Exhibit 1 to your Grant Notice or in an employment or other written agreement between you and
the Company. You will not be deemed to be the holder of, or have any of the rights of a stockholder with respect to, any RSUs unless
and until they have vested and the Administrator has issued and delivered shares of Stock to you and your name shall have been entered
as a stockholder of record on the books of the Company.
The number of RSUs is set forth in
your Grant Notice and will be adjusted in the event of changes in capital structure and similar events as provided in Section 7
of the Plan.
Subject to Section 8, each RSU
will be settled by delivery to you of one share of Stock within thirty (30) days following vesting. The Administrator may, in its sole
discretion, deliver cash in lieu of all or any portion of the shares of Stock otherwise deliverable in respect of the RSUs in an amount
equal to such number of shares of Stock multiplied by the Fair Market Value of a share of Stock on the date when such shares would otherwise
have been issued, as determined by the Administrator.
| 4. | Securities Law Compliance |
In no event shall the Company deliver
shares of Stock upon vesting or settlement of the RSUs unless such shares are then registered under the Securities Act of 1933, as amended
(the “Securities Act”), and applicable state securities law or, if not registered, the Administrator has determined
that your exercise and the issuance of the shares would be exempt from the registration requirements of the Securities Act and applicable
state securities laws. The issuance of shares of Stock is also subject to compliance with all other applicable laws and regulations governing
your RSUs, including the requirements of any stock exchange on which the Stock may be listed, and you may not be issued shares of Stock
if the Administrator determines that such issuance would not be in material compliance with such laws, regulations and listing requirements.
| (a) | In considering the acceptance of this
award of RSUs, you understand, acknowledge, agree and hereby stipulate that you should use
the same independent investment judgment that you would use in making other investments in
corporate securities. Among other things, stock prices will fluctuate over any reasonable
period of time and the price of Stock may go down as well as up. No guarantees are made as
to the future prospects of the Company or the Stock. No representations are made by the Administrator
or the Company. |
| (b) | Notwithstanding
anything to the contrary in this Agreement, the Stock issued under this Agreement and all
amounts that may be received by you in connection with any disposition of any such Stock
shall be subject to applicable recoupment, “clawback” and similar provisions
under law, regulation and stock exchange listing requirement, as well as any recoupment,
“clawback” and similar policies of the Company that may be adopted at any time
and from time to time in accordance with Section 6(a)(5) of the Plan. [By accepting
the RSUs, you are deemed to have acknowledged and consented to the Company’s “clawback”
policy and the Company’s application, implementation and enforcement of any recoupment,
clawback or similar policy adopted by the board of directors of the Company or committee
thereof, whether adopted prior to or following the Date of Grant, and any provision of applicable
law or stock exchange listing requirement relating to reduction cancellation, forfeiture
or recoupment, and to have agreed that the Company may take such actions as may be necessary
to effectuate any such policy, requirement or applicable law, without further consideration
or action.] 2 |
2
Note to Draft: Consider inclusion in light of new clawback policy.
The RSUs are not assignable or transferable,
except by will or by the laws of descent and distribution. Without limiting the generality of the foregoing, the RSUs may not be sold,
assigned, transferred or otherwise disposed of, or pledged or hypothecated in any manner (whether by operation of law or otherwise),
and shall not be subject to execution, attachment or other process. Any assignment, transfer, sale, pledge, hypothecation or other disposition
of the RSUs or any attempt to make any such levy of execution, attachment or other process will cause the RSUs to terminate immediately.
| 7. | RSUs not a Service Contract |
The RSUs are not an employment or service
contract, and nothing in the RSUs will be deemed to create in any way whatsoever any obligation on your part to continue in the employ
or service of the Company or an affiliate, or of the Company or an affiliate to continue your employment or service. In addition, nothing
in the RSUs will obligate the Company or an affiliate, their respective stockholders, boards of directors, officers or employees to continue
any relationship that you might have as a member of the Company’s Board or a consultant for the Company or an affiliate.
| 8. | Withholding Obligations |
| (a) | At the time when the RSUs vest, in whole
or in part, and at any time thereafter as requested by the Administrator, you hereby agree
to make adequate provision for any sums required to satisfy the federal, state, local and
foreign tax withholding obligations of the Company or an affiliate, if any, which arise in
connection with such vesting and settlement of the RSUs. The Administrator, in its sole discretion,
may (but is not required to) hold back shares of Stock otherwise issuable on settlement of
the RSUs or permit you to tender previously-owned shares of Stock in satisfaction of tax
or other withholding requirements (but not in excess of the maximum withholding amount consistent
with the RSUs being subject to equity accounting treatment under the Accounting Rules). In
addition, the Administrator may (but is not required to), to the extent permitted by law,
deduct any such tax and other withholding amounts from any payment of any kind otherwise
due to you from the Company or any parent or subsidiary of the Company. |
| (b) | The Administrator and the Company assume
no responsibility for individual income taxes, penalties or interest related to grant, vesting
or settlement of any RSU. Neither the Administrator, the Company nor any affiliate makes
any representation or undertaking regarding the treatment of any tax withholding in connection
with the grant, vesting or settlement of the RSUs. You should consult with your personal
tax advisor regarding the tax ramifications, if any, which result from receipt of the RSUs,
the subsequent issuance, if any, of Stock on settlement of the RSUs, and the subsequent disposition
of any such Stock. You acknowledge that the Administrator or the Company may be required
to withhold federal, state and/or local taxes in connection with the vesting and/or settlement
of the RSUs. No RSUs will vest or be settled unless the tax withholding obligations of
the Company and/or any affiliate
are satisfied. The Administrator will have no obligation to issue a certificate
for Stock in respect of the RSUs unless the obligations set forth in this Section 8
are satisfied. |
| 9. | Section 409A; Tax Consequences |
It is the Administrator’s and
the Company’s intent that payments under this Agreement and Grant Notice shall be exempt from Section 409A of the Code (“Section 409A”)
to the extent applicable, and that this Agreement be administered accordingly. Notwithstanding anything to the contrary contained in
this Agreement, the Grant Notice or any employment agreement you have entered into with the Company, to the extent that any payment or
benefit under this Agreement is determined by the Administrator to constitute “nonqualified deferred compensation” subject
to Section 409A and is payable to you by reason of termination of your employment, then (a) such payment or benefit shall be
made or provided to you only upon a “separation from service,” as defined for purposes of Section 409A under applicable
regulations, from the Company and (b) if you are a “specified employee” (within the meaning of Section 409A and
as determined by the Administrator), such payment or benefit shall not be made or provided before the date that is six months after the
date of your separation from service from the Company (or your earlier death). Each payment under this Agreement shall be treated as
a separate payment under Section 409A. You hereby agree that the Administrator and the Company do not have a duty to design or administer
the Plan or its other compensation programs in a manner that minimizes your tax liabilities. You will not make any claim against the
Administrator, the Company, or any of its officers, directors, employees or affiliates related to tax liabilities arising from the RSUs
or your other compensation.
Any notices provided for in the Agreement
or the Plan will be given in writing and will be deemed effectively given upon receipt. The Administrator may, in its sole discretion,
decide to deliver any documents related to these RSUs by electronic means or to request your consent to participate by electronic means.
By accepting these RSUs, you consent to receive such documents by electronic delivery and to participate through an on-line or electronic
system established and maintained by the Administrator or another third party designated by the Administrator.
In the event that the Administrator
provides you (or anyone acting on your behalf) with summary or other information concerning, including or otherwise relating to your
rights or benefits under this Agreement (including, without limitation, the RSUs and any vesting thereof), such summary or other information
shall in all cases be qualified in its entirety by Exhibit 1, the Grant Notice, this Agreement and the Plan and, unless it explicitly
states otherwise and is signed by an officer of the Company, shall not constitute an amendment or other modification hereto.
You understand, acknowledge, agree and hereby
stipulate that: (a) you are executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone
else; (b) the RSUs are intended to be consideration in exchange for the promises and covenants set forth in this Agreement;
(c) you have carefully read, considered and understand all of the provisions of this Agreement and the Company’s policies
reflected in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged;
(d) you have asked any questions needed for you to understand the terms, consequences and binding effect of this Agreement and you
fully understand them; (e) you were provided an opportunity to seek the advice of an attorney and/or a tax professional of
your choice before accepting this award of RSUs and (f) the obligations and restrictions set forth in this Agreement are fair and
reasonable.
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Sharecare, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security
Type |
Security Class Title |
Fee
Calculation
Rule |
Amount
Registered(1) |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering Price |
Fee Rate |
Amount of
Registration
Fee |
| Equity |
Common Stock,
$0.0001 par value per
share |
Other(2) |
17,671,518(3) |
$1.38(2) |
$24,386,694.84 |
$0.0001476 |
$3,599.48 |
| Equity |
Common Stock,
$0.0001 par value per
share |
Other(2) |
1,610,715(4) |
$1.38(2) |
$2,222,786.70 |
$0.0001476 |
$328.08 |
| Equity |
Common Stock,
$0.0001 par value per
share |
Other(2) |
1,500,000(5) |
$1.38(2) |
$2,070,000.00 |
$0.0001476 |
$305.53 |
| Equity |
Common Stock,
$0.0001 par value per
share |
Other(2) |
1,889,285(6) |
$1.38(2) |
$2,607,213.30 |
$0.0001476 |
$384.82 |
| Total Offering Amounts |
|
$31,286,694.84 |
|
$4,617.92 |
| Total Fee Offsets |
|
|
|
— |
| Net Fee Due |
|
|
|
$4,617.92 |
| (1) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock, par value $0.0001 per share (the “Common Stock”) of Sharecare, Inc. (the “Registrant”) that become issuable under the Sharecare, Inc. 2021 Omnibus Incentive Plan (the “Incentive Plan”) and the Sharecare, Inc. 2024 Inducement Plan (the “Inducement Plan”) by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without receipt of consideration which results in an increase in the number of outstanding shares of Common Stock of the Registrant. |
| (2) |
Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $1.38 per share, which is the average of the high and low prices of a share of Common Stock on August 8, 2024, as reported on The Nasdaq Stock Market. |
| (3) |
Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the Incentive Plan on January 1, 2024 pursuant to an “evergreen” provision contained in the Incentive Plan. Pursuant to such provision, the total number of shares of Common Stock under the Incentive Plan will automatically increase on January 1st of each year for a period of ten years commencing on January 1, 2022 and ending on (and including) January 1, 2031, in an amount equal to 5% of the total number of shares of Common Stock outstanding on December 31st of the preceding year. Notwithstanding the foregoing, the board of directors of the Registrant may act prior to January 1st of a given year to provide that the increase for such year will be a lesser number of shares of Common Stock than as provided in the Incentive Plan. |
| (4) |
Represents shares of Common Stock reserved for issuance under the Inducement Plan. |
| (5) |
Represents shares of Common Stock issuable upon the exercise of performance-based restricted stock units, granted on June 14, 2024 to new employees as inducement awards in connection with the commencement of employment pursuant to Nasdaq Listing Rule 5635(c)(4) under the Inducement Plan. |
| (6) |
Represents shares of Common Stock issuable upon the exercise of time-based restricted stock units, granted on June 14, 2024 to new employees as inducement awards in connection with the commencement of employment pursuant to Nasdaq Listing Rule 5635(c)(4) under the Inducement Plan. |
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