Delaware
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46-2942439
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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5980 Horton Street, Suite 105
Emeryville, California
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94608
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(Address of Principal Executive Offices)
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(Zip Code)
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Large accelerated filer
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☐ |
Accelerated filer
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☐ |
Non-accelerated filer
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☒ |
Smaller reporting company
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☐ |
Emerging growth company
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☒ |
Title of Each Class of Securities
to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price
Per Share(2)
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Proposed
Maximum
Aggregate
Offering Price(2)
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Amount of
Registration Fee
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Common Stock, par value $0.001 per share
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19,288,139
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$12.26-$31.00
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$478,669,094
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$52,223
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of the Registrant’s common stock that become
issuable under the Zymergen, Inc. 2021 Incentive Award Plan, as amended (the “2021 Plan”), the Zymergen, Inc. Employee Stock Purchase Plan (the “ESPP”), as amended, and the Zymergen, Inc. 2014 Stock Plan, as amended (the “2014 Plan”), by
reason of any stock dividend, stock split, recapitalization or similar transaction effected without the Registrant’s receipt of consideration which would increase the number of outstanding shares of common stock.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the
aggregate offering price (a) for outstanding options granted under the 2014 Plan are based upon the weighted-average exercise price of such outstanding options and (b) for shares initially reserved for future issuance under the 2021 Plan
and the ESPP are based on the initial public offering price of the common stock ($31.00 per share) offered pursuant to the Registration Statement on Form S-1 (File No. 333-254612) that was declared effective on April 21, 2021. The chart
below details the calculations of the registration fee:
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Securities
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Number of
Shares
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Offering Price
Per Share
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Aggregate
Offering Price
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Shares issuable upon the exercise of outstanding options granted under the 2014 Plan(3)
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6,364,099
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$12.26(2)(a)
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$78,023,854
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Shares reserved under the 2020 Plan(3)
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10,770,034
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$31.00(2)(b)
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$333,871,054
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Shares reserved under the ESPP
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2,154,006
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$31.00(2)(b)
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$66,774,186
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Proposed Maximum Aggregate Offering Price
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$478,669,094
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(3)
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Pursuant to the terms of the 2021 Plan, any shares subject to outstanding options originally granted under the 2014 Plan that terminate, expire or lapse for any reason without the delivery of shares to the
holder thereof shall become available for issuance pursuant to awards granted under the 2021 Plan.
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• |
The prospectus filed by the Registrant with the SEC pursuant to Rule 424(b) under the Securities Act, on April 22, 2021, relating to the registration statement on Form S-1, as amended (File No. 333-254612), which contains the Registrant’s
audited financial statements for the latest fiscal year for which such statements have been filed; and
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• |
The description of the Registrant’s common stock contained in the Registrant’s registration statement on Form 8-A (File No. 001-40354), filed by the Registrant with the SEC under Section 12(b) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), on April 19, 2021 including any amendments or reports filed for the purpose of updating such description.
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• |
any breach of the director’s duty of loyalty to our company or our stockholders;
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• |
any act or omission not in good faith or which involved intentional misconduct or a knowing violation of law;
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• |
unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; and
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• |
any transaction from which the director derived an improper personal benefit.
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Exhibit
Number
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Exhibit Description
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Incorporated by Reference
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Filed
Herewith
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||
Form
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Date
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Number
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|||
Restated Certificate of Incorporation of Zymergen Inc., as currently in effect.
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S-1
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03/23/2021
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3.1
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||
Form of Amended and Restated Certificate of Incorporation, to be in effect immediately prior to the completion of the Registrant’s initial public offering.
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S-1/A
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04/14/2021
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3.2
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||
Amended and Restated Bylaws of the Registrant, as currently in effect.
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S-1
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03/23/2021
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3.3
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Form of Amended and Restated Bylaws, to be in effect immediately prior to the completion of the Registrant’s initial public offering.
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S-1/A
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04/14/2021
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3.4
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||
Form of Stock Certificate for common stock of the Registrant
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S-1
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03/26/2021
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4.2
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||
Opinion of Freshfields Bruckhaus Deringer US LLP.
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X
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||||
Consent of Independent Registered Public Accounting Firm. |
X
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||||
Consent of Freshfields Bruckhaus Deringer US LLP (included in Exhibit 5.1).
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X
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||||
Power of Attorney. Reference is made to the signature page to this registration statement.
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X
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||||
2014 Stock Plan, as amended.
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S-1
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03/21/2021
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10.4
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2021 Incentive Award Plan.
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X | |
2021 Employee Stock Purchase Plan.
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X |
(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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 the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
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(2)
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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.
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(3)
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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.
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Zymergen Inc.
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By:
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/s/ Josh Hoffman
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Name: Josh Hoffman
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Title: Chief Executive Officer
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Signature
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Title
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Date
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/s/ Josh Hoffman
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Chief Executive Officer and Director
(Principal Executive Officer)
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April 22, 2021
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Josh Hoffman
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/s/ Enakshi Singh
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Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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April 22, 2021
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Enakshi Singh
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/s/ Steven Chu
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Director
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April 22, 2021
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Steven Chu
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/s/ Jay T. Flatley
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Director, Chairperson
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April 22, 2021
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Jay T. Flatley
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/s/ Christine M. Gorjanc
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Director
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April 22, 2021
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Christine M. Gorjanc
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/s/ Travis Murdoch
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Director
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April 22, 2021
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Travis Murdoch
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/s/ Matthew A. Ocko
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Director
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April 22, 2021
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Matthew A. Ocko
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/s/ Sandra E. Peterson
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Director
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April 22, 2021
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Sandra E. Peterson
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/s/ Zach Serber
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Director
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April 22, 2021
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Zach Serber
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/s/ Rohit Sharma
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Director
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April 22, 2021
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Rohit Sharma
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Silicon Valley
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2710 Sand Hill Road
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Menlo Park, CA 94025
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T +1 650 618 9250 (Switchboard)
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www.freshfields.com
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(a) |
A transaction or series of transactions (other than an offering of Common Stock to the general public through a registration statement filed with the Securities and Exchange Commission)
whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) directly or indirectly acquires beneficial ownership (within the meaning of Rules 13d-3 and 13d-5 under the
Exchange Act) of the Company’s securities possessing more than 50% of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; provided, however, that the following acquisitions shall not
constitute a Change in Control: (i) any acquisition by the Company or any of its Subsidiaries; (ii) any acquisition by an employee benefit plan maintained by the Company or any of its Subsidiaries, (iii) any acquisition which complies with
Sections 2.7(c)(i), 2.7(c)(ii) and 2.7(c)(iii); or (iv) in respect of an Award held by a particular Participant, any acquisition by the Participant or any group of persons including the Participant (or any entity controlled by the Participant
or any group of persons including the Participant);
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(b) |
The Incumbent Directors cease for any reason to constitute a majority of the Board;
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(c) |
The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation,
reorganization, or business combination, (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another
entity, in each case other than a transaction:
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(i) |
which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting
securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the
business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction;
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(ii) |
after which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or
group shall be treated for purposes of this Section 2.7(c)(ii) as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the
transaction; and
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(iii) |
after which at least a majority of the members of the board of directors (or the analogous governing body) of the Successor Entity were Board members at the time of the Board’s approval
of the execution of the initial agreement providing for such transaction; or
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(d) |
The completion of a liquidation or dissolution of the Company.
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(a) |
As to a Consultant, the time when the engagement of a Participant as a Consultant to the Company or a Subsidiary is terminated for any reason, with or without cause, including, without
limitation, by resignation, discharge, death or retirement, but excluding terminations where the Consultant simultaneously commences or remains in employment or service with the Company or any Subsidiary.
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(b) |
As to a Non-Employee Director, the time when a Participant who is a Non-Employee Director ceases to be a Director for any reason, including, without limitation, a termination by
resignation, failure to be elected, death or retirement, but excluding terminations where the Participant simultaneously commences or remains in employment or service with the Company or any Subsidiary.
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(c) |
As to an Employee, the time when the employee-employer relationship between a Participant and the Company or any Subsidiary is terminated for any reason, including, without limitation, a
termination by resignation, discharge, death, disability or retirement; but excluding terminations where the Participant simultaneously commences or remains in employment or service with the Company or any Subsidiary.
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(a) |
The Plan is administered by the Administrator. The Administrator has authority to determine which Service Providers receive Awards, grant Awards and set Award terms and conditions,
subject to the conditions and limitations in the Plan. The Administrator also has the authority to take all actions and make all determinations under the Plan, to interpret the Plan and Award Agreements and to adopt, amend and repeal Plan
administrative rules, guidelines and practices as it deems advisable. The Administrator may correct defects and ambiguities, supply omissions, reconcile inconsistencies in the Plan or any Award and make all other determinations that it deems
necessary or appropriate to administer the Plan and any Awards. The Administrator (and each member thereof) is entitled to, in good faith, rely or act upon any report or other information furnished to it, him or her by any officer or other
employee of the Company or any Subsidiary, the Company’s independent certified public accountants, or any executive compensation consultant or other professional retained by the Company to assist in the administration of the Plan. The
Administrator’s determinations under the Plan are in its sole discretion and will be final, binding and conclusive on all persons having or claiming any interest in the Plan or any Award.
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(b) |
Without limiting the foregoing, the Administrator has the exclusive power, authority and sole discretion to: (i) designate Participants; (ii) determine the type or types of Awards to be
granted to each Participant; (iii) determine the number of Awards to be granted and the number of Shares to which an Award will relate; (iv) subject to the limitations in the Plan, determine the terms and conditions of any Award and related
Award Agreement, including, but not limited to, the exercise price, grant price, purchase price, any performance criteria, any restrictions or limitations on the Award, any schedule for vesting, lapse of forfeiture restrictions or
restrictions on the exercisability of an Award, and accelerations, waivers or amendments thereof; (v) determine whether, to what extent, and under what circumstances an Award may be settled in, or the exercise price of an Award may be paid in
cash, Shares, or other property, or an Award may be canceled, forfeited, or surrendered; and (vi) make all other decisions and determinations that may be required pursuant to the Plan or as the Administrator deems necessary or advisable to
administer the Plan.
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(a) |
If all or any part of an Award or Prior Plan Award expires, lapses or is terminated, converted into an award in respect of shares of another entity in connection with a spin-off or other
similar event, exchanged for cash, surrendered, repurchased, canceled without having been fully exercised or forfeited, in any case, in a manner that results in the Company acquiring Shares covered by the Award or Prior Plan Award at a price
not greater than the price (as adjusted to reflect any Equity Restructuring) paid by the Participant for such Shares or not issuing any Shares covered by the Award or Prior Plan Award, the unused Shares covered by the Award or Prior Plan
Award will, as applicable, become or again be available for Awards under the Plan. The payment of Dividend Equivalents in cash in conjunction with any outstanding Awards or Prior Plan Awards shall not count against the Overall Share Limit.
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(b) |
In addition, the following Shares shall be available for future grants of Awards: (i) Shares tendered by a Participant or withheld by the Company in payment of the exercise price of an
Option or any stock option granted under the Prior Plan; (ii) Shares tendered by the Participant or withheld by the Company to satisfy any tax withholding obligation with respect to an Award or any Prior Plan Award; and (iii) Shares subject
to a Stock Appreciation Right that are not issued in connection with the stock settlement of the Stock Appreciation Right on exercise thereof. Notwithstanding the provisions of this Section 5.2(b), no Shares may again be optioned, granted or
awarded pursuant to an Incentive Stock Option if such action would cause such Option to fail to qualify as an incentive stock option under Section 422 of the Code.
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(a) |
Cash, check or wire transfer of immediately available funds; provided that the Company may limit the use of one of the foregoing methods if one or more of the methods below is permitted;
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(b) |
If there is a public market for Shares at the time of exercise, unless the Company otherwise determines, (A) delivery (including electronically or telephonically to the extent permitted
by the Company) of a notice that the Participant has placed a market sell order with a broker acceptable to the Company with respect to Shares then issuable upon exercise of the Option and that the broker has been directed to deliver promptly
to the Company funds sufficient to pay the exercise price, or (B) the Participant’s delivery to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Company to deliver promptly to the Company an
amount sufficient to pay the exercise price by cash, wire transfer of immediately available funds or check; provided that such amount is paid to the Company at such time as may be required by the Company;
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(c) |
To the extent permitted by the Administrator, delivery (either by actual delivery or attestation) of Shares owned by the Participant valued at their Fair Market Value on the date of
delivery;
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(d) |
To the extent permitted by the Administrator, surrendering Shares then issuable upon the Option’s exercise valued at their Fair Market Value on the exercise date;
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(e) |
To the extent permitted by the Administrator, delivery of a promissory note or any other lawful consideration; or
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(f) |
To the extent permitted by the Administrator, any combination of the above payment forms.
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(a) |
Stockholder Rights. Unless otherwise determined by the Administrator, each
Participant holding shares of Restricted Stock will be entitled to all the rights of a stockholder with respect to such Shares, subject to the restrictions in the Plan and the applicable Award Agreement, including the right to receive all
dividends and other distributions paid or made with respect to the Shares to the extent such dividends and other distributions have a record date that is on or after the date on which such Participant becomes the record holder of such
Shares; provided, however, that with respect to a share of Restricted Stock subject to restrictions or vesting conditions, except in connection with a spin-off or other similar event as otherwise permitted under Section 9.2, dividends which
are paid to Company stockholders prior to the removal of restrictions and satisfaction of vesting conditions shall only be paid to the Participant to the extent that the restrictions are subsequently removed and the vesting conditions are
subsequently satisfied and the share of Restricted Stock vests.
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(b) |
Stock Certificates. The Company may require that the Participant deposit in
escrow with the Company (or its designee) any stock certificates issued in respect of shares of Restricted Stock, together with a stock power endorsed in blank.
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(c) |
Section 83(b) Election. If a Participant makes an election under Section 83(b) of
the Code to be taxed with respect to the Restricted Stock as of the date of transfer of the Restricted Stock rather than as of the date or dates upon which such Participant would otherwise be taxable under Section 83(a) of the Code, such
Participant shall be required to deliver a copy of such election to the Company promptly after filing such election with the Internal Revenue Service along with proof of the timely filing thereof.
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(a) |
To provide for the cancellation of any such Award in exchange for either an amount of cash, rights or other property with a value equal to the amount that could have been obtained upon
the exercise or settlement of such Award or realization of the Participant’s rights under such Award, as applicable (whether or not then vested or exercisable); provided that, subject to Section 409A of the Code, such payment may be made in
installments and may be deferred until the date or dates the Award would have become exercisable or vested. For the avoidance of doubt, if the amount that could have been obtained upon the exercise or settlement of such Award or realization
of the Participant’s rights, in any case, is equal to or less than zero, then the Award may be terminated without payment;
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(b) |
To provide that such Award shall vest and, to the extent applicable, be exercisable as to all Shares (or other property) covered thereby, notwithstanding anything to the contrary in the
Plan or the provisions of such Award;
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(c) |
To provide that such Award be assumed by the successor or survivor corporation or entity, or a parent or subsidiary thereof, or shall be substituted for by awards covering the stock of
the successor or survivor corporation or entity, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and applicable exercise or purchase price, in all cases, as determined by the Administrator;
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(d) |
To make adjustments in the number and type of shares of Common Stock (or other securities or property) subject to outstanding Awards or with respect to which Awards may be granted under
the Plan (including, but not limited to, adjustments of the limitations in Article V hereof on the maximum number and kind of shares which may be issued) or in the terms and conditions of (including the grant or exercise price), and the
criteria included in, outstanding Awards;
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(e) |
To replace such Award with other rights or property selected by the Administrator; or
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(f) |
To provide that the Award will terminate and cannot vest, be exercised or become payable after the applicable event.
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(a) |
Notwithstanding any other provision of the Plan, in the event of a Change in Control, unless the Administrator elects to (i) terminate an Award in exchange for cash, rights or property in
accordance with 9.2(a), or (ii) cause an Award to become fully exercisable and no longer subject to any forfeiture restrictions prior to the consummation of a Change in Control, pursuant to Section 9.2(b), (A) such Award (other than any
portion subject to performance-based vesting) shall continue in effect or be assumed or an equivalent Award substituted by the successor corporation or a parent or subsidiary of the successor corporation and (B) the portion of such Award
subject to performance-based vesting shall be subject to the terms and conditions of the applicable Award Agreement and, in the absence of applicable terms and conditions, the Administrator’s discretion; provided
that in the event of a Change in Control, each Award granted to a Non-Employee Director will become fully vested and, if applicable, exercisable immediately prior to the consummation of such transaction and all forfeiture restrictions on such
Award shall lapse and, to the extent unexercised upon the consummation of such transaction, to terminate in exchange for cash, rights or other property.
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(b) |
In the event that the successor corporation in a Change in Control refuses to assume or substitute for an Award, the Administrator shall cause such Award to become fully vested and, if
applicable, exercisable immediately prior to the consummation of such transaction and all forfeiture restrictions on such Award to lapse and, to the extent unexercised upon the consummation of such transaction, to terminate in exchange for
the right to receive cash, rights or other property equal in value to the per share consideration received by holders of the Company’s Common Stock; provided that the treatment of any portion of the Award subject to performance-based vesting
shall be subject to the terms and conditions of the applicable Award Agreement and, in the absence of applicable terms and conditions, in the Administrator’s discretion. The Administrator shall notify the Participant of any Award that becomes
exercisable pursuant to the preceding sentence that such Award shall be fully exercisable for a period of 15 days from the date of such notice, contingent upon the occurrence of the Change in Control, and such Award shall terminate upon the
consummation of the Change in Control in accordance with the preceding sentence.
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(c) |
For the purposes of this Section 9.3, an Award shall be considered assumed if, following the Change in Control, the Award confers the right to purchase or receive, for each Share subject
to the Award immediately prior to the Change in Control, the consideration (whether stock, cash, or other securities or property) received in the Change in Control by holders of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the Change in Control was
not solely common stock of the successor corporation or its parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Award, for each Share subject to
an Award, to be solely common stock of the successor corporation or its parent equal in fair market value to the per-share consideration received by holders of Common Stock in the Change in Control.
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(a) |
No Award may be sold, assigned, transferred, pledged or otherwise encumbered, either voluntarily or by operation of law, except by will or the laws of descent and distribution, or,
subject to the Administrator’s consent, pursuant to a DRO, unless and until such Award has been exercised or the Shares underlying such Award have been issued, and all restrictions applicable to such Shares have lapsed. During the life of a
Participant, Awards will be exercisable only by the Participant, unless it has been disposed of pursuant to a DRO. After the death of a Participant, any exercisable portion of an Award may, prior to the time when such portion becomes
unexercisable under the Plan or the applicable Award Agreement, be exercised by the Participant’s personal representative or by any person empowered to do so under the deceased Participant’s will or under the then-Applicable Law of descent
and distribution. References to a Participant, to the extent relevant in the context, will include references to a transferee approved by the Administrator.
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(b) |
Notwithstanding Section 10.1(a), the Administrator, in its sole discretion, may determine to permit a Participant or a Permitted Transferee of such Participant to transfer an Award other
than an Incentive Stock Option (unless such Incentive Stock Option is intended to become a Nonqualified Stock Option) to any one or more Permitted Transferees of such Participant, subject to the following terms and conditions: (i) an Award
transferred to a Permitted Transferee shall not be assignable or transferable by the Permitted Transferee other than (A) to another Permitted Transferee of the applicable Participant or (B) by will or the laws of descent and distribution or,
subject to the consent of the Administrator, pursuant to a domestic relations order; (ii) an Award transferred to a Permitted Transferee shall continue to be subject to all the terms and conditions of the Award as applicable to the original
Participant (other than the ability to further transfer the Award to any Person other than another Permitted Transferee of the applicable Participant); (iii) the Participant (or transferring Permitted Transferee) and the receiving Permitted
Transferee shall execute any and all documents requested by the Administrator, including, without limitation documents to (A) confirm the status of the transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for
the transfer under Applicable Law and (C) evidence the transfer; and (iv) any transfer of an Award to a Permitted Transferee shall be without consideration, except as required by Applicable Law. In addition, and further notwithstanding
Section 10.1(a), the Administrator, in its sole discretion, may determine to permit a Participant to transfer Incentive Stock Options to a trust that constitutes a Permitted Transferee if, under Section 671 of the Code and other Applicable
Law, the Participant is considered the sole beneficial owner of the Incentive Stock Option while it is held in the trust.
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(c) |
Notwithstanding Section 10.1(a), if permitted by the Administrator, a Participant may, in the manner determined by the Administrator, designate a Designated Beneficiary. A Designated
Beneficiary, legal guardian, legal representative, or other person claiming any rights pursuant to the Plan is subject to all terms and conditions of the Plan and any Award Agreement applicable to the Participant and any additional
restrictions deemed necessary or appropriate by the Administrator. If the Participant is married or a domestic partner in a domestic partnership qualified under Applicable Law and resides in a community property state, a designation of a
person other than the Participant’s spouse or domestic partner, as applicable, as the Participant’s Designated Beneficiary with respect to more than 50% of the Participant’s interest in the Award shall not be effective without the prior
written or electronic consent of the Participant’s spouse or domestic partner. Subject to the foregoing, a beneficiary designation may be changed or revoked by a Participant at any time; provided that the change or revocation is delivered in
writing to the Administrator prior to the Participant’s death.
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(a) |
General. The Company intends that all Awards be structured to comply with, or be
exempt from, Section 409A, such that no adverse tax consequences, interest, or penalties under Section 409A apply. Notwithstanding anything in the Plan or any Award Agreement to the contrary, the Administrator may, without a Participant’s
consent, amend this Plan or Awards, adopt policies and procedures, or take any other actions (including amendments, policies, procedures and retroactive actions) as are necessary or appropriate to preserve the intended tax treatment of
Awards, including any such actions intended to (A) exempt this Plan or any Award from Section 409A, or (B) comply with Section 409A, including regulations, guidance, compliance programs and other interpretative authority that may be issued
after an Award’s grant date. The Company makes no representations or warranties as to an Award’s tax treatment under Section 409A or otherwise. The Company will have no obligation under this Section 11.6 or otherwise to avoid the taxes,
penalties or interest under Section 409A with respect to any Award and will have no liability to any Participant or any other person if any Award, compensation or other benefits under the Plan are determined to constitute noncompliant
“nonqualified deferred compensation” subject to taxes, penalties or interest under Section 409A.
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(b) |
Separation from Service. If an Award constitutes “nonqualified deferred
compensation” under Section 409A, any payment or settlement of such Award upon a Participant’s Termination of Service will, to the extent necessary to avoid taxes under Section 409A, be made only upon the Participant’s “separation from
service” (within the meaning of Section 409A), whether such “separation from service” occurs upon or after the Participant’s Termination of Service. For purposes of this Plan or any Award Agreement relating to any such payments or benefits,
references to a “termination,” “termination of employment” or like terms means a “separation from service.”
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(c) |
Payments to Specified Employees. Notwithstanding any contrary provision in the
Plan or any Award Agreement, any payment(s) of “nonqualified deferred compensation” required to be made under an Award to a “specified employee” (as defined under Section 409A and as the Administrator determines) due to his or her
“separation from service” will, to the extent necessary to avoid taxes under Section 409A(a)(2)(B)(i) of the Code, be delayed for the six-month period immediately following such “separation from service” (or, if earlier, until the specified
employee’s death) and will instead be paid (as set forth in the Award Agreement) on the day immediately following such six-month period or as soon as administratively practicable thereafter (without interest). Any payments of “nonqualified
deferred compensation” under such Award payable more than six months following the Participant’s “separation from service” will be paid at the time or times the payments are otherwise scheduled to be made.
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