As filed with the Securities and Exchange Commission on September 18, 2020 

Registration No. 333- 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8 

REGISTRATION STATEMENT UNDER

THE SECURITIES ACT OF 1933

 

 

AMERICAN WELL CORPORATION 

(Exact Name of Registrant as Specified in its Charter)

 

Delaware 7372 20-5009396
(State or Other Jurisdiction of
Incorporation or Organization)
(Primary Standard Industrial Classification Code Number) (I.R.S. Employer
Identification No.)
 

75 State Street, 26th Floor

Boston, MA 02109

 
(Address of Principal Executive Offices)
 

American Well Corporation 2020 Equity Incentive Plan

American Well Corporation 2020 Employee Stock Purchase Plan
American Well Corporation 2006 Amended and Restated Employee, Director and Consultant Stock Plan, as amended

(Full Titles of the Plans)

 

 

Ido Schoenberg

Chairman, Co-Chief Executive Officer

American Well Corporation

75 State Street, 26th Floor

Boston, MA 02109

(617) 204-3500 

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)

 

 

 

With copies to:

Adam Kaminsky

Michael Kaplan
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
(212) 450-4000

 

Bradford Gay

SVP, General Counsel
American Well Corporation

75 State Street, 26th Floor

Boston, MA 02109

(617) 204-3500 

 

 

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 Accelerated filer
Non-accelerated filer  (Do not check if a smaller reporting company) Smaller reporting company
  Emerging Growth Company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to Be Registered Amount to Be Registered (1) Proposed Maximum Offering Price Per Share Proposed Maximum Aggregate Offering Price Amount of Registration Fee (4)
Class A Common Stock, $0.01 par value per share        
   — American Well Corporation 2020 Equity Incentive Plan (the “2020 Plan”)        
§ Restricted stock units outstanding 685,031 $18.00 (2) $12,330,558.00 $1,600.51
§ Shares available for future issuance 30,414,971 $18.00 (2) $547,469,478.00 $71,061.54
   — American Well Corporation 2020 Employee Stock Purchase Plan (the “2020 ESPP”)        
§ Shares available for future issuance 3,074,725 $18.00 (2) $55,345,050.00 $7,183.79
   — American Well Corporation 2006 Amended and Restated Employee, Director and Consultant Stock Plan, as amended (the “2006 Plan”)        
§   Stock options outstanding 20,718,885 $3.74 $77,488,629.90 $10,058.02
§   Restricted stock units outstanding 5,225,492 $18.00 (2) $94,058,856.00 $12,208.84
Class B Common Stock, $0.01 par value per share        
   — 2006 Plan        
§   Stock options outstanding 3,529,766 $5.56 (3) $19,625,498.96 $2,547.39
§   Restricted stock units outstanding 2,860,880 $18.00 (2) $51,495,840.00 $6,684.16
Total 66,509,750   $857,813,910.86 $111,344.25
(1)In the event of a stock split, stock dividend or similar transaction involving the Registrant’s Class A common stock, $0.01 par value per share (“Class A Common Stock”) or Class B common stock, $0.01 par value per share (“Class B Common Stock”), the number of shares registered hereby shall automatically be adjusted in accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”).

 

(2)Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act on the basis of the average of the high and low prices of the Registrant’s Class A Common Stock on September 16, 2020.

 

(3)Estimated in accordance with Rules 457(h) solely for the purpose of calculating the registration fee on the basis of the weighted-average exercise price of the stock options outstanding under the 2006 Plan.

 

(4)Rounded up to the nearest cent.

 

 

 

PART I

 

The information specified in Part I of Form S-8 is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of the Form S-8 instructions. The documents containing the information specified in Part I will be delivered to the participants in the 2020 Plan, the 2020 ESPP and the 2006 Plan, as specified by Rule 428(b)(1) under the Securities Act.

 

PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents filed by American Well Corporation (“Amwell”, the “Registrant” or the “Company”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:

 

(a)  The prospectus dated September 18, 2020 filed by Amwell with the Commission pursuant to Rule 424(b) under the Securities Act relating to the registration statement on Form S-1, as amended (Registration No. 333-248309) (the “Form S-1 Registration Statement”), which contains the Company’s audited financial statements for the latest fiscal year for which such statements have been filed; and

 

(b) The description of the Registrant’s capital stock which is contained in the Company’s Exchange Act Registration Statement on Form 8-A filed by Amwell with the Commission on September 14, 2020 (Exchange Act File No. 001-39515), including any amendment or report filed for the purpose of updating that description.

 

In addition, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than documents or any information therein deemed to have been furnished and not filed in accordance with rules of the Commission), prior to the filing of a post-effective amendment to this Registration Statement, which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents.

 

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein), modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

 

Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which such person is made a party by reason of such person being or having been a director, officer, employee or agent to the Registrant. The Delaware General Corporation Law provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be

 

3 

 

entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Article 7 of the Registrant’s certificate of incorporation provides for indemnification by the Registrant of its directors, officers and employees to the fullest extent permitted by the Delaware General Corporation Law. The Registrant has entered into indemnification agreements with each of its current directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws and to provide additional procedural protections. There is no pending litigation or proceeding involving a director or executive officer of the Registrant for which indemnification is sought.

 

Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant’s certificate of incorporation provides for such limitation of liability.

 

The Registrant maintains standard policies of insurance under which coverage is provided (a) to its directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act, and (b) to the Registrant with respect to payments which may be made by the Registrant to such officers and directors pursuant to the above indemnification provision or otherwise as a matter of law.

 

The form of underwriting agreement filed as Exhibit 1 to the Form S-1 Registration Statement provides for indemnification of directors and officers of the Registrant by the underwriters against certain liabilities.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

Exhibit Number 

 
4.1 Form of Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of the Registrant’s Amendment No. 1 to Registration Statement on Form S-1, No. 333-248309, filed on September 8, 2020)
4.2 Form of Bylaws (incorporated by reference to Exhibit 3.2 of the Registrant’s Amendment No. 1 to Registration Statement on Form S-1, No. 333-248309, filed on September 8, 2020)
4.3 Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 of the Registrant’s Registration Statement on Form S-1, No. 333-248309, filed on August 24, 2020)
4.4 Second Amended and Restated Investors’ Rights Agreement, dated October 8, 2010, as amended on November 1, 2016, May 29, 2018 and September 5, 2019 (incorporated by reference to Exhibits 4.2 through 4.5 of the Registrant’s Registration Statement on Form S-1, No. 333-248309, filed on August 24, 2020)
5.1* Opinion of Davis Polk & Wardwell LLP
23.1* Consent of PricewaterhouseCoopers LLP
23.2* Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
24.1* Powers of Attorney (included on signature page)
99.1 2020 Equity Incentive Plan (incorporated by reference to Exhibit 10.5 of the Registrant’s Amendment No. 1 to Registration Statement on Form S-1, No. 333-248309, filed on September 8, 2020)

4 

 

99.2* Form of RSU Agreement under the 2020 Equity Incentive Plan
99.3 2020 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.23 of the Registrant’s Registration Statement on Form S-1, No. 333-248309, filed on August 24, 2020)
99.4 Amended and Restated 2006 Employee, Director and Consultant Stock Plan, as amended (incorporated by reference to Exhibits 10.1 and 10.30 through 10.32 of the Registrant’s Amendment No. 1 to Registration Statement on Form S-1, No. 333-248309, filed on September 8, 2020)

___________

*Filed herewith.

 

Item 9. Undertakings.

 

(a)  The undersigned Registrant hereby undertakes:

 

(1)  To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii)To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and

 

(iii)To include any material information with respect to the Plans not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

 

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

(2)  That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3)  To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b)  The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c)  Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling

 

5 

 

person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

6 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant, American Well Corporation, 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 Boston, Commonwealth of Massachusetts, on the 18th day of September, 2020.

 

 

AMERICAN WELL CORPORATION

 

   
   
  By: /s/ Ido Schoenberg
    Name: Ido Schoenberg
    Title: Chairman and co-Chief Executive Officer
     
  By: /s/ Roy Schoenberg
    Name: Roy Schoenberg
    Title: President and co-Chief Executive Officer

 

7 

 

POWER OF ATTORNEY AND SIGNATURES

 

Know all persons by these presents, that each person whose signature appears below constitutes and appoints Ido Schoenberg, Roy Schoenberg and Bradford Gay, and each of them, as his or her true and lawful attorney-in-fact and agents, upon the action of such appointee, with full power of substitution and resubstitution, to do any and all acts and things and execute, in the name of the undersigned, any and all instruments which each of said attorneys-in-fact and agents may deem necessary or advisable in order to enable American Well Corporation to comply with the Securities Act, and any requirements of the Commission in respect thereof, in connection with the filing with the Commission of this Registration Statement under the Securities Act, including specifically but without limitation, power and authority to sign the name of the undersigned to such Registration Statement, and any amendments to such Registration Statement (including post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith, with the Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with applicable state securities laws, and to file the same, together with other documents in connection therewith with the appropriate state securities authorities, granting unto each of said attorneys-in-fact and agents full power and authority to do and to perform each and every act and thing requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents 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 by the following persons in the capacities and on the dates indicated:

 

 

Signature

 

Title

 

Date

 
     
/s/ Ido Schoenberg

 

Ido Schoenberg, MD

 

Chairman and co-Chief Executive Officer

(Principal Executive Officer and Director)

September 18, 2020
     
/s/ Roy Schoenberg

 

Roy Schoenberg, MD, MPH

 

President and co-Chief Executive Officer

(Principal Executive Officer and Director)

September 18, 2020
     

/s/ Keith Anderson

 

Keith Anderson

 

Chief Financial Officer

(Principal Financial Officer)

September 18, 2020
/s/ Paul McNeice    
 

Paul McNeice

 

Vice President of Accounting
(Principal Accounting Officer)
September 18, 2020
/s/ Deval Patrick    
 

Deval Patrick

 

Director September 18, 2020
     
 

Brendan O’Grady

 

Director
     
 

Dr. Peter Slavin

 

Director

     
 

Dr. Nazim Cetin

 

Director
     
 

Derek Ross

 

Director
     

 

 

Signature 

 

Title

 

Date

 
     
/s/ Stephen Schlegel
 

Stephen Schlegel

 

Director September 18, 2020
/s/ Dr. Delos Cosgrove    
 

Dr. Delos (Toby) Cosgrove

 

Director September 18, 2020

 

 

 

EXHIBITS 5.1 AND 23.2

 

September 18, 2020

 

American Well Corporation

75 State Street, 26th Floor

Boston, MA 02109

 

Ladies and Gentlemen:

 

We have acted as special counsel to American Well Corporation, a Delaware corporation (the “Company”), and are delivering this opinion in connection with the Company’s Registration Statement on Form S-8 (the “Registration Statement”) filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, for the registration of (i) 60,358,991 shares of the Company’s Class A Common Stock, par value $0.01 per share (the “Class A Shares”), issuable (a) pursuant to the Company’s 2020 Equity Incentive Plan (the “2020 Plan”), (b) pursuant to the Company’s 2020 Employee Stock Purchase Plan (the “ESPP”) and (c) upon exercise of outstanding options and settlement of outstanding restricted stock units under the Company’s 2006 Amended and Restated Employee, Director and Consultant Stock Plan, as amended (the “2006 Plan”, and together with the 2020 Plan and ESPP, the “Plans”) and upon the settlement of outstanding restricted stock units under the 2020 Plan and (ii) 6,390,646 shares of the Company’s Class B Common Stock, par value $0.01 per share (the “Class B Shares”, and together with the Class A Shares, the “Shares”), issuable upon exercise of outstanding options and settlement of outstanding restricted stock units under the 2006 Plan.

 

We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.

 

In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine, (iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vi) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate.

 

On the basis of the foregoing, we are of the opinion that the Shares have been duly authorized and, when and to the extent issued pursuant to the Plans upon receipt by the Company of the consideration for the Shares specified therein, will be validly issued, fully paid and non-assessable.

 

We are members of the Bars of the States of New York and the District of Columbia and the foregoing opinion is limited to the laws of the State of New York, the federal laws of the United States of America and the General Corporation Law of the State of Delaware.

 

We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

 

   
  Very truly yours,
   
  /s/ Davis Polk & Wardwell LLP

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of American Well Corporation of our report dated June 1, 2020, except for the effects of the stock split discussed in Note 25 to the consolidated financial statements, as to which the date is September 8, 2020, relating to the financial statements of American Well Corporation, which appears in American Well Corporation’s Amendment No. 2 to the Registration Statement on Form S-1 (No. 333-248309).

 

/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
September 18, 2020

 

 

Exhibit 99.2

 

AMERICAN WELL CORP
2020 EQUITY INCENTIVE PLAN

 

NOTICE OF RESTRICTED STOCK UNIT AGREEMENT

 

Name of Participant:  
   
Address:  
   
Date of Grant:  
   
Total Number of Restricted Stock Units:  
   
Type of Shares Issuable on Vesting: Common Stock
   
Vesting Schedule: The RSUs shall vest according to the following vesting schedule: [Insert vesting schedule here]

The Company and the Participant acknowledge receipt of this Notice of Restricted Stock Unit Grant and agree to the terms and conditions of the Restricted Stock Unit Agreement attached hereto and incorporated by reference herein, the Company’s 2020 Equity Incentive Plan and the terms of this Notice of Restricted Stock Unit Grant as set forth above.

 

AMERICAN WELL CORP   PARTICIPANT
           
By:     By:    
Name: [     ]   Name: [     ]  
Title: [     ]        

 

 

AMERICAN WELL CORP

 

RESTRICTED STOCK UNIT AGREEMENT - INCORPORATED TERMS AND
CONDITIONS

 

A.            Award of RSUs. American Well Corporation (the “Company”) hereby grants to the Participant (“Participant”) named in the Notice of Restricted Stock Unit Agreement (the “Notice of RSU Grant”), in consideration of Participant’s past and/or continued employment with or service to the Company or a Subsidiary and for other good and valuable consideration, effective as of the date of grant (the “Date of Grant”) set forth in the Notice of RSU Grant the number of Restricted Stock Units (“RSUs”) set forth in the Notice of RSU Grant, upon the terms and conditions set forth in the Company’s 2020 Equity Incentive Plan (the “Plan”), which is incorporated herein by reference, and this Agreement, subject to adjustment as provided in Section 14 of the Plan.  Each RSU represents the right to receive one Share, at the times and subject to the conditions set forth herein.  However, unless and until the RSUs have vested, Participant will have no right to the issuance of any Shares subject thereto. Prior to the actual delivery of any Shares, the RSUs will represent an unsecured obligation of the Company, payable only from the general assets of the Company. Unless otherwise defined herein or in the Notice of RSU Grant, the terms defined in the Plan shall have the same defined meanings in this Restricted Stock Unit Agreement (the “Agreement”).

 

B.        Vesting of RSUs.  Subject to Participant’s continued employment with or service to the Company or a Subsidiary on each applicable vesting date set forth in the Notice of RSU Grant, and subject to the terms of this Agreement, the RSUs shall vest in such amounts and at such times as are set forth in the Notice of RSU Grant.  In the event Participant incurs a Termination of Service, except as may be otherwise provided by the Administrator or as set forth in a written agreement between Participant and the Company, Participant shall immediately forfeit any and all RSUs granted under this Agreement that have not vested or do not vest on or prior to the date on which such Termination of Service occurs, and Participant’s rights in any such RSUs that are not so vested shall lapse and expire.

 

C.        Distribution or Payment of RSUs.

 

(1)         Participant’s RSUs shall be distributed in Shares (either in book-entry form or otherwise) as soon as administratively practicable following the vesting of the applicable RSU pursuant to this Agreement and, in any event, within sixty (60) days following such vesting (for the avoidance of doubt, this deadline is intended to comply with the “short-term deferral” exemption from Section 409A).  Notwithstanding the foregoing, the Company may delay a distribution or payment in settlement of RSUs if it reasonably determines that such payment or distribution will violate federal securities laws or any other Applicable Law, provided that such distribution or payment shall be made at the earliest date at which the Company reasonably determines that the making of such distribution or payment will not cause such violation, as required by Treasury Regulation Section 1.409A-2(b)(7)(ii), and provided further that no payment or distribution shall be delayed under this Section (C)(1) if such delay will result in the RSUs becoming subject to or in a violation of Section 409A.

 

(2)         All distributions made in Shares shall be made by the Company in the form of whole Shares.

 

D.        Conditions to Issuance of Stock.  The Company shall not be required to issue or deliver any certificate or certificates for any Shares or to cause any Shares to be held in book-entry form prior to the fulfillment of any or all of the following conditions:  (a) the admission of the Shares to listing on all stock exchanges on which such Shares are then listed, (b) the completion of any registration or other qualification or exemption of the Shares under any state or federal law or under rulings or regulations of the Securities and Exchange Commission or other governmental regulatory body, which the Administrator shall, in its absolute discretion, deem necessary or advisable, (c) the obtaining of any approval or other clearance from any state or federal governmental agency that

 

2 

 

the Administrator shall, in its absolute discretion, determine to be necessary or advisable and (d) the receipt by the Company of any tax obligations due on issuance of such Shares, which may be in one or more of the forms of consideration permitted under Section (E)(1).

 

E.        Tax Obligations.

 

(1)           The Company (or the Parent or Subsidiary employing or retaining Participant) has the authority to deduct or withhold, or require Participant to remit to the applicable employing entity, an amount sufficient to satisfy any applicable federal, state, local and foreign income and employment tax withholding requirements (including the employee portion of any FICA obligation) applicable to the issuance of Shares pursuant to the RSUs or with respect to any taxable event arising pursuant to this Agreement. The Company (or its Parent or Subsidiary, as applicable) may withhold, or if the Participant is subject to Section 16 of the Exchange Act, the Participant shall be permitted to instruct the Company to withhold, such payment in one or more of the following forms:

 

(i)     by cash or check;

 

(ii)   with the consent of the Administrator, by electing to have withheld the net number of Shares otherwise issuable pursuant to the RSUs having a then current Fair Market Value not exceeding the amount necessary to satisfy the withholding obligation of the Company (or its Parent or Subsidiary, as applicable) based on the maximum statutory withholding rates in Participant’s applicable jurisdictions for federal, state, local and foreign income tax and payroll tax purposes that are applicable to such taxable income;

 

(iii)     with the consent of the Administrator, by tendering to the Company vested Shares held for such period of time as may be required by the Administrator in order to avoid adverse accounting consequences and having a then current Fair Market Value not exceeding the amount necessary to satisfy the withholding obligation of the Company (or its Parent or Subsidiary, as applicable) based on the maximum statutory withholding rates in Participant’s applicable jurisdictions for federal, state, local and foreign income tax and payroll tax purposes that are applicable to such taxable income; or

 

(iv)  with the consent of the Administrator, by selling a sufficient number of Shares otherwise deliverable to Participant through such means as the Administrator may determine in its sole discretion (whether through a broker or otherwise) equal to the amount required to satisfy such withholding taxes.

 

Participant acknowledges and agrees that the Company may refuse to deliver the Shares issuable with respect to the RSUs to, or cause any such Shares to be held in book-entry form by, Participant or his or her legal representative if such withholding amounts are not timely delivered in full pursuant to this Section (E)(1).

 

(2)           Code Section 409A.  This Award is not intended to constitute “nonqualified deferred compensation” within the meaning of Code Section 409A. However, notwithstanding any other provision of the Plan or this Agreement, if, at any time, the Administrator determines that this Award (or any portion thereof) may be subject to Code Section 409A, the Administrator shall have the right in its sole discretion (without any obligation to do so or to indemnify Participant or any other Person for failure to do so) to adopt such amendments to the Plan or this Agreement, or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, as the Administrator determines are necessary or appropriate for this Award either to be exempt from the application of Code Section 409A or to comply with the requirements of Code Section 409A.

 

3 

 

(3)           Liability.  Participant is ultimately liable and responsible for all taxes owed in connection with the RSUs, regardless of any action the Company or any of its Parents or Subsidiaries takes with respect to any tax withholding obligations that arise in connection with the RSUs.  Neither the Company nor any of its Parents or Subsidiaries makes any representation or undertaking regarding the treatment of any tax withholding in connection with the awarding, vesting or payment of the RSUs or the subsequent sale of Shares.  The Company and its Parents and Subsidiaries do not commit and are under no obligation to structure the RSUs to reduce or eliminate Participant’s tax liability.

 

F.           Rights as Stockholder.  Neither Participant nor any Person claiming under or through Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares (which may be in book-entry form) will have been issued and recorded on the records of the Company or its transfer agents or registrars and delivered to Participant (including through electronic delivery to a brokerage account).  Except as otherwise provided herein, after such issuance, recordation and delivery, Participant will have all the rights of a stockholder of the Company with respect to such Shares, including, without limitation, the right to receipt of dividends and distributions on such Shares.

 

G.          RSUs Not Transferable.  The RSUs may not be sold, pledged, assigned or transferred in any manner other than by will or the laws of descent and distribution, unless and until the Shares underlying the RSUs have been issued, and all restrictions applicable to such Shares have lapsed.  No RSUs or any interest or right therein or part thereof shall be liable for the debts, contracts or engagements of Participant or his or her successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect, except to the extent that such disposition is permitted by the preceding sentence.  Notwithstanding the foregoing, with the consent of the Administrator, the RSUs may be transferred to Permitted Transferees, pursuant to any such conditions and procedures the Administrator may require.

 

H           ..Entire Agreement; Governing Law. The Plan is incorporated herein by reference. The Plan and this Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof, except as may otherwise be set forth in the Participant’s employment agreement or offer letter with the Company, and may not be modified adversely to the Participant’s interest except by means of a writing signed by the Company and Participant or as is otherwise permitted under the Plan. This Agreement is governed by the internal substantive laws but not the choice of law rules of State of Delaware.

 

I.           No Guarantee of Continued Service. PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE VESTING OF RSUS PURSUANT TO THE VESTING SCHEDULE HEREOF AND ISSUANCE OF SHARES PURSUANT THERETO IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.

 

J.           Administration. The Administrator shall have the power to interpret the Plan and this Agreement, and to adopt such rules for the administration, interpretation and application of the Plan and this Agreement as are consistent therewith and to interpret, amend or revoke any such rules. All actions taken and all interpretations and determinations made by the Administrator will be final and binding upon Participant, the Company and all other

 

4 

 

interested Persons. To the extent allowable pursuant to Applicable Law, no member of the Committee or the Board will be personally liable for any action, determination or interpretation made with respect to the Plan or this Agreement.

 

K.          Adjustments. The Administrator may accelerate the vesting of all or a portion of the RSUs in such circumstances as it, in its sole discretion, may determine. Participant acknowledges that the RSUs are subject to adjustment, modification and termination in certain events as provided in this Agreement and the Plan, including Section 14 of the Plan.

 

L.          Notices. Any notice to be given under the terms of this Agreement to the Company shall be addressed to the Company in care of the Secretary of the Company at the Company’s principal office, and any notice to be given to Participant shall be addressed to Participant at Participant’s address set forth below. By a notice given pursuant to this Section 1(L), either party may hereafter designate a different address for notices to be given to that party. Any notice shall be deemed duly given when sent via email or when sent by certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or branch post office regularly maintained by the United States Postal Service. Subject to the limitations set forth in Section 232(e) of the General Corporation Law of the State of Delaware (the “DGCL”), Participant consents to the delivery of any notice to Participant given by the Company under the DGCL or the Company’s certificate of incorporation or bylaws by (i) facsimile telecommunication to the facsimile number for Participant in the Company’s records, (ii) electronic mail to the electronic mail address for Participant in the Company’s records, (iii) posting on an electronic network together with separate notice to Participant of such specific posting or (iv) any other form of electronic transmission (as defined in the DGCL) directed to Participant. This consent may be revoked by Participant by written notice to the Company and may be deemed revoked in the circumstances specified in Section 232 of the DGCL.

 

M.         Conformity to Securities Laws. Participant acknowledges that the Plan and this Agreement are intended to conform, to the extent necessary, with all provisions of the Securities Act and the Exchange Act and any and all Applicable Law and regulations and rules promulgated by the Securities and Exchange Commission thereunder, and state securities laws and regulations. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the RSUs are granted, only in such a manner as to conform to such Applicable Law.

 

N.          Limitations Applicable to Section 16 Persons.  Notwithstanding any other provision of the Plan or this Agreement, if Participant is subject to Section 16 of the Exchange Act, the Plan, the RSUs and this Agreement shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule.  To the extent permitted by applicable law, this Agreement shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.

 

O.          Successors and Assigns.  The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the successors and assigns of the Company.  Subject to the restrictions on transfer set forth in Section 1(G) and the Plan, this Agreement shall be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

 

P.           Limitation on Participant’s Rights.  Participation in the Plan confers no rights or interests other than as herein provided.  This Agreement creates only a contractual obligation on the part of the Company as to amounts payable and shall not be construed as creating a trust.  Neither the Plan nor any underlying program, in and of itself, has any assets.  Participant shall have only the rights of a general unsecured creditor of the Company with respect to amounts credited and benefits payable, if any, with respect to the RSUs.

 

5