Delaware
|
6770
|
98-1548118
|
||
(State or other jurisdiction of
incorporation or organization)
|
(Primary Standard Industrial Classification Code Number)
|
(I.R.S. Employer
Identification Number)
|
Jack Sheridan, Esq.
Ryan J. Maierson, Esq. Benjamin A. Potter, Esq. Brian D. Paulson, Esq. Saad Khanani, Esq. Latham & Watkins LLP 140 Scott Drive Menlo Park, CA 94025 |
Kate DeHoff
General Counsel Joby Aviation, Inc. 2155 Delaware Avenue, Suite #225 Santa Cruz, CA 95060 (831)
426-3733
|
Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
Non-accelerated filer
|
☒ | Smaller reporting company | ☒ | |||
Emerging growth company | ☒ |
|
||||||||
Title of each class of
securities to be registered
|
|
Amount
to be
registered
|
|
Proposed
maximum
offering price
per security
|
|
Proposed
maximum
aggregate
offering price
|
|
Amount of
registration fee
|
Common stock
(1)(2)
|
|
511,219,042
|
|
$10.54
(3)
|
|
$5,388,248,702.68
(4)
|
|
$587,857.94
|
Warrants
(1)
|
|
11,533,333
|
|
—
|
|
—
|
|
—
(4)
|
Common stock
(1)(5)
|
|
28,783,333
|
|
$11.50
(5)
|
|
$331,008,329.50
|
|
$36,113.01
|
Total
|
|
|
|
|
|
$5,719,257,032.18
|
|
$576,491.12
(6)
|
|
||||||||
|
(1)
|
Pursuant to Rule 416(a) of the Securities Act, there are also being registered an indeterminable number of additional securities as may be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
|
(2)
|
The number of shares of common stock being registered represents the sum of (a) 427,719,042 shares of common stock issued in connection with the Merger described herein and (b) 83,500,000 shares of common stock issued to certain qualified institutional buyers and accredited investors in private placements consummated in connection with the business combination.
|
(3)
|
Estimated solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the common stock of Joby Aviation, Inc. (on the New York Stock Exchange (the “NYSE”) on August 13, 2021 (such date being within five business days of the date that this registration statement was first filed with the SEC). This calculation is in accordance with Rule 457(c) of the Securities Act.
|
(4)
|
In accordance with Rule 457(g), the entire registration fee for the warrants is allocated to the shares of common stock underlying the warrants, and no separate fee is payable for the warrants.
|
(5)
|
Reflects the shares of common stock that may be issued upon exercise of outstanding warrants, with each warrant exercisable for one share of common stock, subject to adjustment, for an exercise price of $11.50 per share.
|
(6)
|
Pursuant to Rule 457(p) under the Securities Act, the registrant is offsetting the registration fee due under this registration statement by $47,479.83, which represents the portion of the registration fee paid with respect to securities that had previously been included in the registrant’s registration statement on Form S-4, as amended (Registration Statement
No. 333-254988),
which was originally filed with the Securities and Exchange Commission on April 2, 2021 and was declared effective by the Securities and Exchange Commission on July 16, 2021.
|
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Page
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viii
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129
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F-1
|
|
|
|
|
II-1
|
|
• |
“2021 Plan” are to the Joby Aviation, Inc. 2021 Incentive Award Plan;
|
• |
“Business Combination” are to the Domestication together with the Merger;
|
• |
“Closing” are to the closing of the Business Combination on August 10, 2021;
|
• |
“Code” are to the Internal Revenue Code of 1986, as amended;
|
• |
“Company,” “we,” “us” and “our” are to Joby Aviation, Inc.;
|
• |
“DGCL” are to the General Corporation Law of the State of Delaware;
|
• |
“Domestication” are to the domestication of Reinvent Technology Partners as a corporation incorporated in the State of Delaware;
|
• |
“ESPP” are to our 2021 Employee Stock Purchase Plan attached to this prospectus as Annex G;
|
• |
“Exchange Act” are to the Securities Exchange Act of 1934, as amended;
|
• |
“Exchange Ratio” are to the quotient obtained by dividing (i) 500,000,000 by (ii) the aggregate — fully diluted number of shares of Joby common stock issued and outstanding immediately prior to the Merger (which is the aggregate number of shares of Joby common stock (a) issued and outstanding immediately prior to the Merger after giving effect to the exercise of the Joby Warrants, (b) issuable upon the conversion of the Joby preferred stock immediately prior to the Merger in accordance with Joby’s organizational documents, (c) issuable upon, or subject to, the exercise of Joby Options (whether or not then vested or exercisable) that are outstanding immediately prior to the Merger, assuming net settlement, or (d) subject to Joby RSUs (whether or not then vested) that are outstanding immediately prior to the Merger), excluding shares of Joby capital stock issuable pursuant to the Note Conversion;
|
• |
“Founder Shares” are to the RTP Class B ordinary shares purchased by the Sponsor in a private placement prior to the initial public offering;
|
• |
“GAAP” are to accounting principles generally accepted in the United States of America;
|
• |
“HSR Act” are to the
Hart-Scott-Rodino
|
• |
“In-Q-Tel
In-Q-Tel,
|
• |
“initial public offering” are to RTP’s initial public offering that was consummated on September 21, 2020;
|
• |
“IPO registration statement” are to the Registration Statement on Form
S-1
(333-248497)
filed by RTP in connection with its initial public offering, which became effective on September 16, 2020;
|
• |
“IRS” are to the U.S. Internal Revenue Service;
|
• |
“JOBS Act” are to the Jumpstart Our Business Startups Act of 2012;
|
• |
“Joby Aviation common stock” are to shares of Joby Aviation common stock, par value $0.0001 per share;
|
• |
“Joby Aviation, Inc.” are to RTP after the Domestication and its name change from Reinvent Technology Partners;
|
• |
“Joby Aviation Options” are to options to purchase shares of Joby Aviation common stock;
|
• |
“Joby Aviation RSU Awards” are to awards of restricted stock units based on shares of Joby Aviation common stock;
|
• |
“Joby Awards” are to Joby Options and Joby RSUs;
|
• |
“Joby capital stock” are to shares of Joby common stock and Joby preferred stock;
|
• |
“Joby common stock” are to shares of Joby common stock, par value $0.00001 per share;
|
• |
“Joby Equityholder Approval” are to the adoption of the Merger Agreement and approval of the transactions contemplated thereby, including the Merger, by the affirmative vote or written consent of the holders of at least (i) a majority of the outstanding shares of Joby capital stock and (ii) 60% of the outstanding shares of Joby preferred stock, voting as a single class on an
as-converted
basis;
|
• |
“Joby Options” are to options to purchase shares of Joby common stock;
|
• |
“Joby PIPE Investor” are to a PIPE Investor that is a holder of shares of Joby capital stock or securities exercisable for or convertible into Joby capital stock as of the date of the Merger Agreement and not a Sponsor Related PIPE Investor;
|
• |
“Joby preferred stock” are to the Series
Seed-1
preferred stock, Series
Seed-2
preferred stock, Series A preferred stock, Series B preferred stock and Series C preferred stock of Joby;
|
• |
“Joby RSU Awards” are to awards of restricted stock units based on shares of Joby common stock;
|
• |
“Joby Stockholders” are to the stockholders of Joby and holders of Joby Awards prior to the Business Combination;
|
• |
“Joby Warrants” are to the SVB Warrants and the
In-Q-Tel
|
• |
“Merger” are to the merger of Merger Sub with and into Joby, with Joby surviving the merger as a wholly owned subsidiary of Joby Aviation;
|
• |
“Merger Agreement” are to the Agreement and Plan of Merger, dated as of February 23, 2021, by and among RTP, Merger Sub and Joby, as amended and modified from time to time;
|
• |
“Note Conversion” are to the automatic conversion of the Uber Note into a number of shares of Joby capital stock in accordance with its terms;
|
• |
“NYSE” are to the New York Stock Exchange;
|
• |
“ordinary shares” are to the RTP Class A ordinary shares and the RTP Class B ordinary shares, collectively;
|
• |
“Organizational Documents” are to the Certificate of Incorporation and the Bylaws;
|
• |
“Person” are to any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, governmental authority or instrumentality or other entity of any kind;
|
• |
“PIPE Investment” are to the purchase of shares of Joby Aviation common stock by the PIPE Investors pursuant to the Subscription Agreements, for a total aggregate purchase price of up to $835,000,000;
|
• |
“PIPE Investors” are to those certain
third-party
investors, Joby Stockholders and affiliates of the Sponsor participating in the PIPE Investment pursuant to the Subscription Agreements;
|
• |
“pro forma” are to giving pro forma effect to the Business Combination;
|
• |
“public shareholders” are to holders of public shares, whether acquired in RTP’s initial public offering or acquired in the secondary market;
|
• |
“public shares” are to the RTP Class A ordinary shares (including those that underlie the units) that were offered and sold by RTP in its initial public offering and registered pursuant to the IPO registration statement or the shares of our common stock issued as a matter of law upon the conversion thereof at the time of the Domestication, as context requires;
|
• |
“Public Warrants” are to the redeemable warrants (including those that underlie the units) that were offered and sold by RTP in its initial public offering and registered pursuant to the IPO registration statement or the redeemable warrants of Joby Aviation issued as a matter of law upon the conversion thereof at the time of the Domestication, as context requires;
|
• |
“Public Warrant Holders” are to holders of Public Warrants, whether acquired in RTP’s initial public offering or acquired in the secondary market;
|
• |
“redemption” are to each redemption of public shares for cash pursuant to the Cayman Constitutional Documents and the Organizational Documents;
|
• |
“Registration Statement” are to the registration statement of which this prospectus forms a part.
|
• |
“Reinvent Capital” are to Reinvent Capital LLC.
|
• |
“RTP” are to Reinvent Technology Partners prior to the Domestication;
|
• |
“RTP Class A ordinary shares” are to RTP’s Class A ordinary shares, par value $0.0001 per share;
|
• |
“RTP Class B ordinary shares” are to RTP’s Class B ordinary shares, par value $0.0001 per share;
|
• |
“RTP units” and “units” are to the units of RTP, each unit representing one RTP Class A ordinary share and
one-fourth
of one redeemable warrant to acquire one RTP Class A ordinary share, that were offered and sold by RTP in its initial public offering and registered pursuant to the IPO registration statement (less the number of units that have been separated into the underlying public shares and underlying warrants upon the request of the holder thereof);
|
• |
“Sarbanes-Oxley
Act” are to the
Sarbanes-Oxley
Act of 2002;
|
• |
“SEC” are to the United States Securities and Exchange Commission;
|
• |
“Securities Act” are to the Securities Act of 1933, as amended;
|
• |
“Sponsor” are to Reinvent Sponsor LLC, a Cayman Islands limited liability company;
|
• |
“Sponsor Agreement” are to that certain Sponsor Agreement, dated as of February 23, 2021, by and among the Sponsor, RTP and Joby, as amended and modified from time to time;
|
• |
“Sponsor Related PIPE Investors” are to Reinvent Technology SPV I LLC, which is an administrative special purpose vehicle managed by Michael Thompson solely to invest in the PIPE Investment, and Reinvent Capital Fund LP, an investment fund co-founded by Reid Hoffman, Mark Pincus and Michael Thompson (together, in each case, with their permitted transferees);
|
• |
“Sponsor Support Agreement” are to that certain Sponsor Support Agreement, dated as of February 23, 2021, by and among the Sponsor, RTP, the directors and officers of RTP, and Joby, as amended and modified from time to time;
|
• |
“Subscription Agreements” are to the subscription agreements pursuant to which the PIPE Investment will be consummated;
|
• |
“Super
8-K”
are to the Current Report on Form
8-K
to be filed in accordance with the requirements of the Exchange Act and in connection with the transactions contemplated by the Merger Agreement;
|
• |
“SVB Warrants” are to the Warrant to Purchase Common Stock, by and between Joby and Silicon Valley Bank, dated as of March 29, 2017, and the Warrant to Purchase Common Stock, by and between Joby and Silicon Valley Bank, dated as of May 2, 2018, in each case, as amended on February 16, 2021;
|
• |
“Treasury Regulations” are to the regulations promulgated under the Code by the United States Department of the Treasury (whether in final, proposed or temporary form), as the same may be amended from time to time;
|
• |
“trust account” are to the trust account established at the consummation of RTP’s initial public offering at Morgan Stanley & Co. LLC and maintained by Continental Stock Transfer & Trust Company, acting as trustee;
|
• |
“Uber Note” are to the Convertible Promissory Note, issued by Joby to Uber Technologies, Inc., dated as of January 11, 2021;
|
• |
“Uber Note Principal Amount” are to $75,000,000;
|
• |
“Warrant Agreement” are to the Warrant Agreement, dated as of September 16, 2020, by and between RTP and Continental Stock Transfer & Trust Company, as warrant agent; and
|
• |
“warrants” are to the Public Warrants and the private placement warrants.
|
• |
our public securities’ potential liquidity and trading;
|
• |
our ability to raise financing in the future;
|
• |
our success in retaining or recruiting, or changes required in, our officers, key employees or directors;
|
• |
the impact of the regulatory environment and complexities with compliance related to such environment;
|
• |
factors relating to our business, operations and financial performance, including:
|
• |
the impact of the
COVID-19
pandemic;
|
• |
our ability to maintain an effective system of internal controls over financial reporting;
|
• |
our ability to grow market share in our existing markets or any new markets we may enter;
|
• |
our ability to respond to general economic conditions;
|
• |
our ability to manage our growth effectively;
|
• |
our ability to achieve and maintain profitability in the future;
|
• |
our ability to access sources of capital to finance operations and growth;
|
• |
the success of our strategic relationships with third parties; and
|
• |
other factors detailed under the section entitled “Risk Factors.”
|
• |
Safety
:
|
• |
Noise:
|
• |
Performance
:
in-house
development has allowed for optimization of systems and components across the aircraft, resulting in better energy efficiency, range, and speed than what would otherwise be available using
commercial-off-the-shelf
|
• |
Our success depends on the growth of the market for Urban Air Mobility and upon the willingness of consumers to adopt aerial ridesharing services;
|
• |
We may not be able to launch its aerial ridesharing service beginning in 2024, as currently projected;
|
• |
We may not be able to effectively build a
customer-facing
business or app;
|
• |
We may not be able to reduce
end-user
pricing over time at rates sufficient to stimulate demand and drive expected growth for its aerial ridesharing service;
|
• |
We may not be able to capture its first mover advantage if its competitors commercialize their technology first;
|
• |
We may not be able to secure or effectively integrate first and last mile ground mobility into our aerial ridesharing service, or otherwise make the service sufficiently convenient to drive customer adoption;
|
• |
Risk that homogeneity in broader industry may impact customer perception of us and our reputation;
|
• |
Demand for our services may be affected by changes in consumer preferences, discretionary spending and other economic conditions;
|
• |
Potential aircraft underperformance or defects or inability to produce aircraft in the volumes projected or on the timelines projected, which anticipate commercialization beginning in 2024;
|
• |
Potential material adverse impact of crashes, accidents or incidents of eVTOL aircraft or involving lithium batteries involving us or our competitors;
|
• |
We depends on suppliers and service partners for the parts and components in our aircraft and for operational needs;
|
• |
We may not be able to obtain relevant regulatory approvals for the commercialization of its aircraft or operation of its mobility service;
|
• |
There may be regulatory disagreements regarding integrating its service into the National Airspace System without changes to existing regulations and procedures and potential inability to comply if changes are needed;
|
• |
We may face an increase in operating costs and resulting service delays and disruptions if there are changes government regulation imposing additional requirements and restrictions on its operations;
|
• |
Risks related to the U.S. Department of Transportation regulation of the terms of sale of our air transportation services;
|
• |
We may face cost increases resulting from security regulation;
|
• |
Risks related to potential unfavorable changes in U.S. export and import control laws and regulations;
|
• |
We may not be able to secure contracts or continue to grow our relationship with the U.S. government and the Department of Defense, limiting its ability to operate prior to receiving FAA certification of airworthiness;
|
• |
Risk that the U.S. government may modify, curtail or terminate one or more of our contracts;
|
• |
Risks related to unauthorized use by third parties of Joby Aviation’s intellectual property;
|
• |
Conflicts may arise between us and our strategic partners;
|
• |
Natural disasters, permitting or other external factors affecting operations of Joby Aviation’s facilities;
|
• |
We have a history of operating losses and may not be able to generate sufficient revenue to achieve and sustain profitability.
|
• |
Risk of any material disruption in our information systems;
|
• |
If we are unable to and maintain adequate facilities and infrastructure, including securing access to key infrastructure such as airports, we may not be able to offer useful services;
|
• |
The shortage of pilots and mechanics may impact our operating costs and its ability to deploy service at scale;
|
• |
Risks associated with weather, climate change, natural disasters, outbreaks and pandemics, regulatory conditions and other external factors;
|
• |
Significant expenditures in capital improvements and operating expenses to develop and maintain a skyport network to support a
high-volume
service;
|
• |
We depend on the continued services of our senior management team and other highly skilled personnel, and the loss of one or more key employees or an inability to attract and retain highly skilled employees could harm our business.
|
• |
changes in the industries in which we and our customers operate;
|
• |
developments involving our competitors;
|
• |
changes in laws and regulations affecting our business;
|
• |
variations in our operating performance and the performance of our competitors in general;
|
• |
actual or anticipated fluctuations in our quarterly or annual operating results;
|
• |
publication of research reports by securities analysts about us or our competitors or our industry;
|
• |
the public’s reaction to our press releases, our other public announcements and our filings with the SEC;
|
• |
actions by stockholders, including the sale by the Third Party PIPE Investors of any of their shares of our common stock;
|
• |
additions and departures of key personnel;
|
• |
commencement of, or involvement in, litigation involving our company;
|
• |
changes in our capital structure, such as future issuances of securities or the incurrence of additional debt;
|
• |
the volume of shares of our common stock available for public sale; and
|
• |
general economic and political conditions, such as the effects of the
COVID-19
outbreak, recessions, interest rates, local and national elections, fuel prices, international currency fluctuations, corruption, political instability and acts of war or terrorism.
|
• |
the (a) historical audited financial statements of RTP as of December 31, 2020 and for the period from July 3, 2020 through December 31, 2020 and (b) historical unaudited condensed financial statements of RTP as of and for the six months ended June 30, 2021;
|
• |
the (a) historical audited consolidated financial statements of Joby as of and for the year ended December 31, 2020 and (b) historical unaudited condensed consolidated financial statements of Joby as of and for the six months ended June 30, 2021; and
|
• |
other information relating to RTP and Joby included in this prospectus and incorporated by reference, including the Business Combination Agreement and the description of certain terms thereof set forth under the section entitled “The Business Combination” herein
|
• |
RTP will change its jurisdiction of incorporation from the Cayman Islands to the State of Delaware;
|
• |
RTP entered into the Merger Agreement with Merger Sub and Joby, pursuant to which, among other things, following the Domestication, (i) Merger Sub will merge with and into Joby, the separate corporate existence of Merger Sub will cease and Joby will be the surviving corporation and a wholly owned subsidiary of RTP, and RTP will be renamed Joby Aviation, Inc.;
|
• |
Upon the consummation of the Merger, Joby’s equityholders will receive or have the right to receive an aggregate of 500,000,000 shares of Joby Aviation common stock (at a deemed value of $10.00 per share), which, in the case of Joby Awards, will be shares underlying awards based on Joby Aviation common stock, representing a
pre-transaction
equity value of Joby of $5.0 billion (such total number of shares of Joby Aviation common stock, the “Aggregate Merger Consideration”). Accordingly, an estimated 468,837,874 shares of Joby Aviation common stock will be immediately issued and outstanding, based on Joby’s capital stock balance as of August 3, 2021 and
|
• |
An estimated 22,487,113 shares will be reserved for the potential future issuance of Joby Aviation common stock upon the exercise of Joby Aviation Options and an estimated 10,204,260 shares will be reserved for the potential future issuance of Joby Aviation common stock upon the settlement of Joby Aviation RSU Awards based on the following transactions contemplated by the Merger Agreement;
|
• |
the conversion of all outstanding Joby Options into options exercisable for shares of Joby Aviation common stock with the same terms except for the number of shares exercisable and the exercise price, each of which will be adjusted using the Exchange Ratio;
|
• |
the conversion of all outstanding Joby RSU Awards into awards of restricted stock units based on shares of Joby Aviation common stock with the same terms, except the number of restricted stock units comprising the award will be adjusted using the Exchange Ratio;
|
• |
Joby Aviation will issue 7,716,780 shares of Joby Aviation common stock to the holder of the Uber Note (the Uber Note will automatically be converted into a number of shares of Joby capital stock immediately prior to the Merger, which will be cancelled and converted into the right to receive such 7,716,780 shares of Joby Aviation common stock based on the Exchange Ratio);
|
• |
Joby Aviation will issue and sell 83,500,000 shares of Joby Aviation common stock at $10.00 per share to the PIPE Investors pursuant to the PIPE Investment; and
|
• |
17,130,000 shares of Joby Aviation common stock issued as a result of conversion of 17,130,000 Class B ordinary shares of RTP owned by the Sponsor in the Domestication will be immediately subject to the certain vesting provisions (such shares further referred to as “Sponsor Shares”).
|
Pro Forma Combined
|
||||||||
Number of
Shares |
Percentage
of Outstanding Shares |
|||||||
Joby Aviation Stockholders
(1)
|
486,654,654 | 80.59 | ||||||
RTP’s public shareholders
|
26,583,290 | 4.40 | ||||||
Sponsor, its related parties and RTP independent directors
(2)
|
28,750,000 | 4.76 | ||||||
Third Party PIPE Investors
|
61,900,000 | 10.25 | ||||||
|
|
|
|
|||||
Total
|
603,887,944 | 100.00 | ||||||
|
|
|
|
(1) |
Includes (a) 468,837,874 shares expected to be issued to existing Joby common and preferred shareholders (including holders of the Joby Warrants, which will convert into Joby capital stock immediately prior to the
|
Business Combination), 8,797,780 shares of which are subject to repurchase related to early exercised stock options and unvested restricted stock awards (of which restricted stock awards are 492,650), (b) 10,100,000 shares subscribed for by the Joby PIPE Investors and (c) 7,716,780 shares expected to be issued to the holder of the Uber Note. These share amounts may not sum due to rounding. |
(2) |
Includes 17,130,000 shares held by the Sponsor (the “Sponsor Shares”) (assuming such shares were fully vested), 11,500,000 shares subscribed for by the Sponsor Related PIPE Investors and 120,000 shares held by the current independent directors of RTP. The Sponsor Shares are subject to a vesting schedule with 20% of the Sponsor Shares vesting in tranches when the VWAP of the Joby Aviation common stock is greater than $12.00, $18.00, $24.00, $32.00 and $50.00 for any 20 trading days within a period of 30 trading days. After 10 years following the Closing, the Sponsor agrees to forfeit any Sponsor Shares which have not yet vested.
|
Joby Aero,
Inc.
(Historical)
|
Reinvent
(Historical)
|
Transaction
Accounting
Adjustments
|
Pro Forma
Combined
|
|||||||||||||||||
Commitments and contingencies
|
||||||||||||||||||||
Redeemable convertible preferred stock — subject to possible redemption
|
845,931 | — | (845,931 | ) |
|
L
|
|
— | ||||||||||||
Common shares subject to possible redemption
|
— | 604,058 | (604,058 | ) |
|
A
|
|
— | ||||||||||||
Stockholders’ equity (deficit):
|
||||||||||||||||||||
Common Stock
|
— | 8 |
|
E
|
|
61 | ||||||||||||||
9 |
|
G
|
|
|||||||||||||||||
34 |
|
L
|
|
|||||||||||||||||
13 |
|
J
|
|
|||||||||||||||||
(4 | ) |
|
I
|
|
||||||||||||||||
1 |
|
K
|
|
|||||||||||||||||
Class A Common Stock
|
— | 1 | 6 |
|
A
|
|
— | |||||||||||||
(7 | ) |
|
G
|
|
||||||||||||||||
(4 | ) |
|
H
|
|
||||||||||||||||
4 |
|
I
|
|
|||||||||||||||||
Class B Common Stock
|
— | 2 | (2 | ) |
|
G
|
|
— | ||||||||||||
Joby Aero Common Stock
|
— | — | — |
|
J
|
|
— | |||||||||||||
— |
|
N
|
|
|||||||||||||||||
Additional
paid-in
capital
|
28,845 | 27,466 | 604,052 |
|
A
|
|
1,764,999 | |||||||||||||
(149,939 | ) |
|
F
|
|
||||||||||||||||
834,992 |
|
E
|
|
|||||||||||||||||
(44,382 | ) |
|
M
|
|
||||||||||||||||
— |
|
N
|
|
|||||||||||||||||
(30,350 | ) |
|
Q
|
|
||||||||||||||||
845,897 |
|
L
|
|
|||||||||||||||||
(13 | ) |
|
J
|
|
||||||||||||||||
(424,193 | ) |
|
H
|
|
||||||||||||||||
77,167 |
|
K
|
|
|||||||||||||||||
627 |
|
R
|
|
|||||||||||||||||
(5,170 | ) |
|
S
|
|
||||||||||||||||
Accumulated other comprehensive income (loss)
|
256 | — | — | 256 | ||||||||||||||||
Retained Earnings (Accumulated deficit)
|
(402,797 | ) | (22,469 | ) | 30,350 |
|
Q
|
|
(403,669 | ) | ||||||||||
(7,881 | ) |
|
P
|
|
||||||||||||||||
(872 | ) |
|
K
|
|
||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total stockholders’ equity (deficit)
|
(373,696 | ) | 5,000 | 1,730,343 | 1,361,647 | |||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total liabilities, redeemable convertible preferred stock and stockholders’ equity (deficit)
|
$ | 566,077 | $ | 690,878 | $ | 324,844 | $ | 1,581,799 | ||||||||||||
|
|
|
|
|
|
|
|
Year Ended
December 31,
2020 |
For the Period
from
July 3, 2020
(inception) through December 31, 2020 |
|||||||||||||||||||
Joby Aero,
Inc.
(Historical) |
Reinvent
(Historical)
|
Transaction
Accounting Adjustments |
Pro Forma
Combined
|
|||||||||||||||||
Operating expenses:
|
||||||||||||||||||||
Research and development
|
$ | 108,741 | $ | — | $ | — | $ | 108,741 | ||||||||||||
Selling, general and administrative
|
23,495 | 1,105 | 7,881 |
|
P
|
|
32,481 | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total operating expenses
|
132,236 | 1,105 | 7,881 | 141,222 | ||||||||||||||||
Loss from operations
|
(132,236 | ) | (1,105 | ) | (7,881 | ) | (141,222 | ) | ||||||||||||
Interest income
|
5,428 | — | — | 5,428 | ||||||||||||||||
Interest expense
|
(249 | ) | — | — | (249 | ) | ||||||||||||||
Gain from deconsolidation of a subsidiary
|
6,904 | — | — | 6,904 | ||||||||||||||||
Income from equity method investment
|
5,799 | — | — | 5,799 | ||||||||||||||||
Unrealized gain on investments held in Trust Account
|
— | 171 | (171 | ) |
|
AA
|
|
— | ||||||||||||
Financing costs — derivative warrant liabilities
|
— | (1,289 | ) | (1,289 | ) | |||||||||||||||
Change in fair value of derivative warrant liabilities
|
— | (61,680 | ) | (61,680 | ) | |||||||||||||||
Other income (expense), net
|
221 | — | — | 221 | ||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Net income (loss) before income taxes
|
(114,133 | ) | (63,903 | ) | (8,052 | ) | (186,088 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Provision for income taxes
|
31 | — | 31 | |||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Net income (loss)
|
$ | (114,164 | ) | $ | (63,903 | ) | $ | (8,052 | ) | $ | (186,119 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Weighted average shares outstanding of Class A Common Stock
|
69,000,000 | |||||||||||||||||||
Basic and diluted net loss per share- Class A
|
$ | — | ||||||||||||||||||
Weighted average shares outstanding of Class B Common Stock
|
17,250,000 | |||||||||||||||||||
Basic and diluted net loss per share- Class B
|
$ | (3.70 | ) | |||||||||||||||||
Weighted average shares outstanding of Joby Aero Common Stock
|
30,066,847 | |||||||||||||||||||
Basic and diluted net loss per share- Joby Aero
|
$ | (3.80 | ) | |||||||||||||||||
Weighted average shares outstanding of Joby Aviation Common Stock
|
577,960,162 | |||||||||||||||||||
Basic and diluted net loss per share of JobyAviation
|
$ | (0.32 | ) |
Joby Aero,
Inc.
(Historical) |
Reinvent
(Historical)
|
Transaction
Accounting Adjustments |
Pro Forma
Combined
|
|||||||||||||||||
Operating expenses:
|
||||||||||||||||||||
Research and development
|
$ | 88,218 | $ | — | $ | — | 88,218 | |||||||||||||
Selling, general and administrative
|
25,980 | 2,295 | — | 28,275 | ||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total operating expenses
|
114,198 | 2,295 | — | 116,493 | ||||||||||||||||
Loss from operations
|
(114,198 | ) | (2,295 | ) | — | (116,493 | ) | |||||||||||||
Interest income
|
672 | — | — | 672 | ||||||||||||||||
Interest expense
|
(1,904 | ) | — | — | (1,904 | ) | ||||||||||||||
Income from equity method investment
|
8,891 | — | — | 8,891 | ||||||||||||||||
Unrealized gain on investments held in Trust Account
|
— | 105 | (105 | ) |
|
AA
|
|
— | ||||||||||||
Change in fair value of derivative warrant liabilities
|
— | 43,623 | 43,623 | |||||||||||||||||
Other income (expense), net
|
37 | — | — | 37 | ||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Net income (loss) before income taxes
|
(106,502 | ) | 41,433 | (105 | ) | (65,174 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Provision for income taxes
|
9 | — | 9 | |||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Net income (loss)
|
$ | (106,511 | ) | $ | 41,433 | $ | (105 | ) | (65,183 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Weighted average shares outstanding of Class A Common Stock
|
69,000,000 | |||||||||||||||||||
Basic and diluted net loss per share- Class A
|
$ | 0.00 | ||||||||||||||||||
Weighted average shares outstanding of Class B Common Stock
|
17,250,000 | |||||||||||||||||||
Basic and diluted net loss per share- Class B
|
$ | 2.40 | ||||||||||||||||||
Weighted average shares outstanding of Joby Aero Common Stock
|
32,239,448 | |||||||||||||||||||
Basic and diluted net loss per share- Joby Aero
|
$ | (3.30 | ) | |||||||||||||||||
Weighted average shares outstanding of Joby Aviation Common Stock
|
577,960,162 | |||||||||||||||||||
Basic and diluted net loss per share of Joby Aviation
|
$ | (0.11 | ) |
Six Months Ended
June 30, 2021
|
Year Ended
December 31, 2020 |
|||||||
Pro forma net loss
|
$ | (65,183 | ) | $ | (186,119 | ) | ||
Basic weighted average shares outstanding
|
577,960,162 | 577,960,162 | ||||||
Pro forma net loss per share — Basic and Diluted
(1)
|
$ | (0.11 | ) | $ | (0.32 | ) | ||
Weighted average shares outstanding- basic and diluted
|
||||||||
RTP Class A shareholders
|
26,583,290 | 26,583,290 | ||||||
Former RTP Class B Founder Shares
(3)
|
120,000 | 120,000 | ||||||
Former Joby Aero shareholders
(2)
|
467,756,872 | 467,756,872 | ||||||
PIPE Financing
|
83,500,000 | 83,500,000 | ||||||
|
|
|
|
|||||
577,960,162 | 577,960,162 | |||||||
|
|
|
|
(1) |
Outstanding unvested 22,478,113 options, unvested 10,204,260 RSUs, 28,783,333 warrants to purchase RTP’s Class A ordinary shares and 17,130,000 Sponsor Shares are anti-dilutive and are not included in the calculation of diluted net loss per share.
|
(2) |
Amount excludes 8,797,780 shares of Joby Aviation common stock related to the conversion of the outstanding shares of Joby which were issued in respect of unvested restricted stock awards and early exercised stock options, which shares are subject to repurchase.
|
(3) |
Amount excludes 17,130,000 Sponsor Shares subject to vesting upon completion of the Merger.
|
• |
Noise
:
all-electric
powertrain, we’ve spent substantial engineering resources to reduce the noise signature of the aircraft even further. The result is an aircraft that is
100-times
quieter than a
twin-engine
helicopter, exhibiting a noise profile in the range of 65 dBA during takeoff and landing (the noisiest configuration), roughly the volume of a normal speaking voice. In
over-head
flight, the aircraft is near silent at even 500ft to 1,000ft flyover.
|
• |
Safety
:
centrally-located
internal combustion engines, we’re able to deliver a
fault-tolerant
overall architecture for the aircraft. Each propeller is powered by two independent electric motors, each in turn driven by independent electric motor
drive-units.
Each
drive-unit
draws power from a separate battery, of which there are four onboard the aircraft.
|
• |
Performance
:
in-house
development has allowed for optimization of systems and components across the aircraft, resulting in better energy efficiency, range, and speed than what would otherwise be available using
commercial-off-the-shelf
best-in-class
watt-hour
per passenger seat mile basis across most trip distances, and greater efficiency leads to longer range. We believe that our
150-mile
range on a single charge and 200 mph cruise speed represent
best-in-class
time-savings
of our service and results in greater operational flexibility and reduced operating costs.
|
• |
Environmental — Our Environmental pillar is focused on being a good steward of the natural environment through the production and development of innovative designs that reduce resource use and energy consumption.
|
• |
Social — Our Social pillar is focused on promoting diversity, equity and inclusion, while underpinning all of our activities with a core focus on health and safety.
|
• |
Governance — Our Governance pillar focuses on upholding our commitment to ethical business conduct, integrity and corporate responsibility, and integrating strong governance and enterprise risk management oversight across all aspects of our business.
|
Six Months Ended
June 30, |
Change
|
|||||||||||||||
2021
|
2020
|
($)
|
(%)
|
|||||||||||||
Operating expenses
|
||||||||||||||||
Research and development
|
$ | 88,218 | $ | 46,227 | 41,991 | 91 | % | |||||||||
Selling, general and administrative
|
25,980 | 9,597 | 16,383 | 171 | % | |||||||||||
|
|
|
|
|||||||||||||
Total operating expenses
|
114,198 | 55,824 | 58,374 | 105 | % | |||||||||||
|
|
|
|
|||||||||||||
Loss from operations
|
(114,198 | ) | (55,824 | ) | (58,374 | ) | 105 | % | ||||||||
Interest income
|
672 | 3,598 | (2,926 | ) | (81 | )% | ||||||||||
Interest expense
|
(1,904 | ) | (128 | ) | (1,776 | ) | 1,388 | % | ||||||||
Income from equity method investment
|
8,891 | — | 8,891 | 100 | % | |||||||||||
Other income, net
|
37 | 134 | n.m. | n.m. | ||||||||||||
|
|
|
|
|||||||||||||
Total other income, net
|
7,696 | 3,604 | 4,092 | 114 | % | |||||||||||
Loss before income taxes
|
(106,502 | ) | (52,220 | ) | (54,282 | ) | 104 | % | ||||||||
|
|
|
|
|||||||||||||
Income tax expenses
|
9 | 17 | n.m. | n.m. | ||||||||||||
Net loss
|
$ | (106,511 | ) | $ | (52,237 | ) | (54,274 | ) | 104 | % | ||||||
|
|
|
|
* |
n.m. marks changes that are not meaningful for further discussion.
|
Year Ended December 31,
|
Change
|
|||||||||||||||
2020
|
2019
|
($)
|
(%)
|
|||||||||||||
Operating expenses
|
||||||||||||||||
Research and development
|
$ | 108,741 | $ | 70,178 | 38,563 | 55 | % | |||||||||
Selling, general and administrative
|
23,495 | 13,970 | 9,525 | 68 | % | |||||||||||
|
|
|
|
|||||||||||||
Total operating expenses
|
132,236 | 84,148 | 48,088 | 57 | % | |||||||||||
|
|
|
|
|||||||||||||
Loss from operations
|
(132,236 | ) | (84,148 | ) | (48,088 | ) | 57 | % | ||||||||
Interest income
|
5,428 | 1,937 | 3,491 | 180 | % | |||||||||||
Interest expense
|
(249 | ) | (22,952 | ) | 22,703 | (99 | )% | |||||||||
Income from equity method investment
|
5,799 | — | 5,799 | 100 | % | |||||||||||
Gain on deconsolidation of subsidiary
|
6,904 | — | 6,904 | 100 | % | |||||||||||
Loss from changes in fair value of derivative liabilities
|
— | (4,947 | ) | 4,947 | (100 | )% | ||||||||||
Convertible note extinguishment loss
|
— | (366 | ) | 366 | (100 | )% | ||||||||||
Other income, net
|
221 | 129 | n.m. | n.m. | ||||||||||||
|
|
|
|
|||||||||||||
Total other income (expense), net
|
18,103 | (26,199 | ) | |||||||||||||
|
|
|
|
|||||||||||||
Loss before income taxes
|
(114,133 | ) | (110,347 | ) | (3,786 | ) | 3 | % | ||||||||
|
|
|
|
|||||||||||||
Income tax expenses
|
31 | 2 | n.m. | n.m. | ||||||||||||
Net loss
|
$ | (114,164 | ) | $ | (110,349 | ) | (3,815 | ) | 3 | % | ||||||
|
|
|
|
* |
n.m. marks changes that are not meaningful for further discussion.
|
Six Months Ended June 30,
|
Change
|
|||||||||||||||
2021
|
2020
|
($)
|
(%)
|
|||||||||||||
Net cash (used in) provided by:
|
||||||||||||||||
Operating activities
|
$ | (77,533 | ) | $ | (47,938 | ) | (29,595 | ) | 62 | % | ||||||
Investing activities
|
(28,940 | ) | (409,535 | ) | 380,595 | (93 | )% | |||||||||
Financing activities
|
73,469 | 72,000 | 1,469 | 2 | % | |||||||||||
|
|
|
|
|
|
|||||||||||
Net increase (decrease) in cash, cash equivalents, and restricted cash
|
$ | (33,004 | ) | $ | (385,473 | ) | 352,469 | (91 | )% | |||||||
|
|
|
|
|
|
Year Ended
December 31,
|
Change
|
|||||||||||||||
2020
|
2019
|
($)
|
(%)
|
|||||||||||||
Net cash (used in) provided by:
|
||||||||||||||||
Operating activities
|
$ | (105,900 | ) | $ | (76,237 | ) | (29,663 | ) | 39 | % | ||||||
Investing activities
|
(393,159 | ) | (9,240 | ) | (383,919 | ) | 4,155 | % | ||||||||
Financing activities
|
69,220 | 468,410 | (399,190 | ) | (85 | )% | ||||||||||
|
|
|
|
|
|
|||||||||||
Net (decrease) increase in cash, cash equivalents, and restricted cash
|
$ | (429,839 | ) | $ | 382,933 | (812,772 | ) | (212 | )% | |||||||
|
|
|
|
|
|
• |
contemporaneous valuations of our common stock performed by independent third-party specialists;
|
• |
the prices, rights, preferences, and privileges of our convertible preferred stock relative to those of our common stock;
|
• |
the prices paid for common or convertible preferred stock sold to third-party investors by us and prices paid in secondary transactions for shares repurchased by us in
arm’s-length
transactions, including any tender offers, if any;
|
• |
the lack of marketability inherent in our common stock;
|
• |
our actual operating and financial performance;
|
• |
our current business conditions and projections;
|
• |
the hiring of key personnel and the experience of our management;
|
• |
the history of the company and the introduction of new products;
|
• |
our stage of development;
|
• |
the likelihood of achieving a liquidity event, such as an initial public offering (IPO), a merger, or acquisition of our company given prevailing market conditions;
|
• |
the operational and financial performance of comparable publicly traded companies; and
|
• |
the U.S. and global capital market conditions and overall economic conditions.
|
409A Valuation Date
|
Common Stock Fair Value
|
|||
12/23/2019
|
$ | 7.85 | ||
4/20/2020
|
$ | 10.08 | ||
9/30/2020
|
$ | 16.78 | ||
1/11/2021
|
$ | 28.45 | ||
2/23/2021
|
$ | 29.70 | ||
6/14/2021
|
$ | 31.01 |
Date of Option Grant
|
Number of Options
Granted |
Number of
RSUs granted
|
||||||
2/10/2020
|
37,500 | — | ||||||
4/20/2020
|
1,736,750 | — | ||||||
6/23/2020
|
299,500 | — | ||||||
9/3/2020
|
335,450 | — | ||||||
11/10/2020
|
989,175 | — | ||||||
12/18/2020
|
735,354 | — | ||||||
12/26/2020
|
3,774 | — | ||||||
1/19/2021
|
— | 1,123,941 | ||||||
2/23/2021
|
— | 963,293 | ||||||
4/5/2021
|
— | 352,758 | ||||||
6/14/2021
|
— | 627,011 |
Name
|
Age
|
Position
|
||
Executive Officers:
|
||||
JoeBen Bevirt
|
47 | Chief Executive Officer, Chief Architect and Director | ||
Matthew Field
|
49 | Chief Financial Officer and Treasurer | ||
Eric Allison
|
44 | Head of Product | ||
Bonny Simi
|
59 | Head of Air Operations and People | ||
Greg Bowles
|
45 | Head of Government and Regulatory Affairs | ||
Kate DeHoff
|
44 | General Counsel and Corporate Secretary | ||
Justin Lang
|
37 | Head of Partnerships and Corporate Strategy | ||
Didier Papadopoulos
|
46 | Head of Program Management & Systems Engineering | ||
Non-Employee
Directors:
|
||||
Aicha Evans
|
52 | Director | ||
Reid Hoffman
|
53 | Director | ||
James Kuffner
|
50 | Director | ||
Halimah DeLaine Prado
|
45 | Director | ||
Dipender Saluja
|
56 | Director | ||
Paul Sciarra
|
40 | Director, Executive Chairman | ||
Laura Wright
|
61 | Director |
• |
appointing, compensating, retaining, evaluating, terminating and overseeing our independent registered public accounting firm;
|
• |
discussing with our independent registered public accounting firm their independence from management;
|
• |
reviewing with our independent registered public accounting firm the scope and results of their audit;
|
• |
pre-approving
all audit and permissible
non-audit
services to be performed by our independent registered public accounting firm;
|
• |
overseeing the financial reporting process and discussing with management and our independent registered public accounting firm the interim and annual financial statements that we file with the SEC;
|
• |
reviewing and monitoring our accounting principles, accounting policies, financial and accounting controls and compliance with legal and regulatory requirements; and
|
• |
establishing procedures for the confidential anonymous submission of concerns regarding questionable accounting, internal controls or auditing matters.
|
• |
reviewing and approving corporate goals and objectives relevant to the compensation of our Chief Executive Officers, evaluating the performance of our Chief Executive Officer in light of these goals and objectives and setting or making recommendations to the Board regarding the compensation of our Chief Executive Officer;
|
• |
reviewing and setting or making recommendations to our board of directors regarding the compensation of our other executive officers;
|
• |
making recommendations to our board of directors regarding the compensation of our directors;
|
• |
reviewing and approving or making recommendations to our board of directors regarding
|
• |
our incentive compensation and
equity-based
plans and arrangements; and
|
• |
appointing and overseeing any compensation consultants.
|
• |
identifying individuals qualified to become members of our board of directors, consistent with criteria approved by our board of directors;
|
• |
recommending to our board of directors the nominees for election to our board of directors at annual meetings of our stockholders;
|
• |
overseeing an evaluation of our board of directors and its committees; and
|
• |
developing and recommending to our board of directors a set of corporate governance guidelines.
|
• |
JoeBen Bevirt, our President and Chief Executive Officer;
|
• |
Bonny Simi, our Head of Air Operations and People; and
|
• |
Justin Lang, our former Head of Corporate and Legal and current Head of Partnerships and Corporate Strategy.
|
Name and Principal Position
|
Year
|
Salary
($) |
Bonus
($)
(1)
|
Option
Awards ($)
(2)
|
All Other
Compensation ($)
(3)
|
Total ($)
|
||||||||||||||||||
JoeBen Bevirt
|
2020 | 293,600 | — | — | 3,000 | 296,600 | ||||||||||||||||||
President and Chief Executive Officer
|
||||||||||||||||||||||||
Bonny Simi
(4)
|
2020 | 13,462 | 250,000 | 9,408,556 | — | 9,672,018 | ||||||||||||||||||
Head of Air Operations and People
|
||||||||||||||||||||||||
Justin Lang
|
2020 | 277,038 | — | 2,111,944 | — | 2,388,982 | ||||||||||||||||||
Head of Partnerships and Corporate Strategy
|
(1) |
Amount reported represents a sign on bonus paid to Ms. Simi in connection with her commencement of employment with us.
|
(2) |
Amounts reported represent the aggregate grant date fair value of stock options granted to our named executive officers during 2020 computed in accordance with FASB ASC Topic 718. Assumptions used in the calculation of these amounts are included in Note 2 to our audited consolidated financial statements included in this prospectus.
|
(3) |
Amounts reported represent matching contributions under our 401(k) plan.
|
(4) |
Ms. Simi commenced employment with us on December 15, 2020.
|
Option awards
|
Stock awards
|
|||||||||||||||||||||||||||
Name
|
Vesting
commencement date |
Number of
securities underlying unexercised options (#) exercisable |
Number of
securities underlying unexercised options (#) unexercisable |
Option
exercise price ($) |
Option
expiration date |
Number of
shares that have not vested (#) |
Market value
of shares that have not vested ($)
(1)
|
|||||||||||||||||||||
JoeBen Bevirt
|
— | — | — | — | — | — | — | |||||||||||||||||||||
Bonny Simi
|
12/15/2020 |
(2)
|
282,024 | 114,560 | 6.11 | 12/17/2030 | 40,916 | 249,997 | ||||||||||||||||||||
Justin Lang
|
3/11/2019 |
(3)
|
36,241 | 106,259 | 0.70 | 4/22/2029 | — | — | ||||||||||||||||||||
2/3/2020 |
(3)
|
— | 32,500 | 3.00 | 4/19/2030 | — | — | |||||||||||||||||||||
10/31/2020 |
(3)
|
— | 95,000 | 3.00 | 11/9/2030 | — | — |
(1) |
Amount reported based on $6.11 per share, which was the fair market value of Joby common stock as of December 31, 2020, as determined by the Joby board of directors.
|
(2) |
Option to purchase 437,500 shares of Joby common stock vests as to 1/6th of the shares on the first anniversary of the vesting commencement date and as to 1/20th of the shares on each quarterly anniversary of the vesting commencement date thereafter, subject to continued service to us through the applicable vesting date. As of December 31, 2020, the option had been exercised as to 40,916 shares prior to vesting 282,024 of the shares underlying Ms. Simi’s option are exercisable prior to vesting and the remaining 114,560 shares underlying the option become exercisable in equal installments on each March 15 of 2021, 2022, 2023, 2024, 2025, 2026 and January 1, 2027. Shares that are acquired prior to vesting are reported in the stock awards columns and are subject to repurchase at the original exercise price upon any termination of employment with us until such shares vest in accordance with the option’s vesting schedule.
|
(3) |
Option vests and becomes exercisable as to 1/6th of the shares on the first anniversary of the vesting commencement date and as to 1/20th of the shares on each quarterly anniversary of the vesting commencement date thereafter, subject to continued service to us through the applicable vesting date.
|
• |
to the extent that an award terminates, expires or lapses for any reason or an award is settled in cash without the delivery of shares, any shares subject to the award at such time will be available for future grants under the 2021 Plan;
|
• |
to the extent shares are tendered or withheld to satisfy the tax withholding obligation with respect to any award, such shares will be available for future grants under the 2021 Plan;
|
• |
to the extent shares are tendered or withheld in payment of the exercise price of a stock option award or not issued in connection with stock settlement of a SAR, such shares will not be available for future grants under the 2021 Plan;
|
• |
the payment of dividend equivalents in cash in conjunction with any outstanding awards will not be counted against the shares available for issuance under the 2021 Plan; and
|
• |
to the extent permitted by applicable law or any exchange rule, shares issued in assumption of, or in substitution for, any outstanding awards of any entity acquired in any form of combination by us or any of our subsidiaries will not be counted against the shares available for issuance under the 2021 Plan.
|
• |
Non-Qualified
Stock Options
|
• |
Incentive Stock Options
|
• |
Restricted Stock
|
• |
Restricted Stock Units
|
• |
Stock Appreciation Rights
|
• |
Performance Bonus Awards and Performance Stock Units
|
• |
Other Stock or Cash Based Awards
|
• |
Dividend Equivalents
|
Name
|
Fees Earned or
Paid in Cash
($)
|
Option Awards
($)
(1)
|
All Other
Compensation
($)
|
Total
($) |
||||||||||||
Sky Dayton
|
— | — | — | — | ||||||||||||
Aicha Evans
|
— | 93,863 | — | 93,863 | ||||||||||||
James Kuffner
|
— | — | — | — | ||||||||||||
Dipender Saluja
|
— | — | — | — | ||||||||||||
Paul Sciarra
|
— | — | — | — |
(1) |
Amounts reported represent the grant date fair value of a stock option granted to Ms. Evans computed in accordance with FASB ASC Topic 718. Assumptions used in the calculation of this amount is included in Note 2 to our audited consolidated financial statements included in this prospectus. As of December 31, 2020, our non-employee directors held the following outstanding options:
|
Name
|
Option Awards
Outstanding at Year End |
|||
Sky Dayton
|
— | |||
Aicha Evans
|
3,774 | |||
James Kuffner
|
— | |||
Dipender Saluja
|
— | |||
Paul Sciarra
|
— |
• |
each person who is known to be the beneficial owner of more than 5% of our voting shares;
|
• |
each of our executive officers and directors; and
|
• |
all of our executive officers and directors as a group.
|
Number of Shares
|
% of
Ownership |
|||||||
Name and Address of Beneficial Owner
(1)
|
||||||||
5% Holders
|
||||||||
Joby Holdings, Inc.
|
98,802,553 | 16.4 | % | |||||
Entities affiliated with Sciarra Management Trust
(2)
|
59,962,168 | 9.9 | % | |||||
Entities affiliated with Toyota Motor Corporation
(3)
|
78,752,611 | 13.0 | % | |||||
Entities affiliated with Intel Capital Corporation
(4)
|
46,040,786 | 7.6 | % | |||||
Entities affiliated with Capricorn
(5)
|
37,455,596 | 6.2 | % | |||||
Mark Pincus
(6)(7)
|
33,163,333 | 5.4 | % | |||||
Directors and Executive Officers
|
||||||||
JoeBen Bevirt
(8)
|
98,696,150 | 16.3 | % | |||||
Bonny Simi
|
141,454 | * | ||||||
Justin Lang
(9)
|
321,912 | * | ||||||
Kate DeHoff
|
— | * | ||||||
Matthew Field
|
— | * | ||||||
Eric Allison
|
— | * | ||||||
Gregory Bowles
(10)
|
148,340 | * | ||||||
Paul Sciarra
(2)
|
59,962,168 | 9.9 | % | |||||
Reid Hoffman
(6)(11)
|
30,663,333 | 4.9 | % | |||||
Aicha Evans
(12)
|
9,781 | * | ||||||
James Kuffner
(13)
|
78,752,611 | 13.0 | % | |||||
Halimah DeLaine Prado
|
— | * | ||||||
Dipender Saluja
(14)
|
37,455,596 | 6.2 | % | |||||
Laura Wright
|
— | * | ||||||
Didier Papadopoulos
|
— | * | ||||||
All Joby Aviation directors and executive officers as a group (15 individuals)
|
|
306,151,345
|
|
|
50.7
|
%
|
* |
Less than 1%.
|
(1) |
Unless otherwise noted, the business address of each of those listed in the table above is 2155 Delaware Avenue, Suite #225, Santa Cruz, CA 95060.
|
(2) |
Consists of (i) 49,540,579 shares of Joby Aviation common stock held by the Sciarra Management Trust, (ii) 10,371,589 shares of Joby Aviation common stock held by Joby Holdings, Inc. for which Sciarra Management Trust is expected to exercise voting and dispositive power and (iii) 50,000 shares held by the
|
|
Sciarra Foundation. Mr. Sciarra has voting, investment and dispositive power over the shares held in the Sciarra Management Trust and the Sciarra Foundation, and therefore may be deemed to be the beneficial owner of such shares. The address for U.S. Trust Company of Delaware, as agent for Sciarra Management Trust, is 2951 Centerville Road, Suite 200, Wilmington, DE 19808. |
(3) |
Consists of (i) 72,871,831 shares of Joby Aviation common stock held by Toyota Motor Corporation, (ii) 5,813,286 shares of Joby Aviation common stock held by Toyota A.I. Ventures Fund I, L.P., and (iii) 67,494 shares of Joby Aviation common stock held by Toyota A.I. Ventures Parallel Fund
I-A,
L.P. Toyota Motor Corporation has dispositive control over the shares held by Toyota A.I. Ventures Fund I, L.P. and Toyota A.I. Ventures Parallel Fund
I-A,
L.P. and may be deemed to beneficially own such shares. The business address for Toyota Motor Corporation is
4-7-1
450-8171,
Japan.
|
(4) |
Consists of (i) 38,947,301 shares of Joby Aviation common stock held of record by Intel Capital Corporation and (ii) 7,093,485 shares of Joby Aviation common stock held of record by Middlefield Ventures, Inc. Each of Intel Capital Corporation and Middlefield Ventures, Inc. is a direct or indirect wholly-owned subsidiary of Intel Corporation. Intel Capital Corporation and Middlefield Ventures, Inc. share voting and investment power over their respectively held shares with Intel Corporation. The address for each of Intel Capital Corporation and Middlefield Ventures, Inc. is c/o Intel Corporation, 2200 Mission College Blvd., M/S
RN6-59,
Santa Clara, CA, 95054, Attn: Intel Capital Portfolio Manager.
|
(5) |
Consists of (i) 10,193,889 shares of Joby Aviation common stock held by Capricorn-Libra Investment Group, L.P., (ii) 26,086,247 shares of Joby Aviation common stock held by Technology Impact Fund, L.P., and (iii) 1,175,460 shares of Joby Aviation common stock held by Technology Impact Growth Fund, L.P. Capricorn-Libra Partners, LLC is the general partner of Capricorn-Libra Investment Group, L.P., TIF Partners, LLC is the general partner of Technology Impact Fund, L.P. and TIGF Partners, LLC is the general partner of Technology Impact Growth Fund, L.P. Capricorn-Libra Partners, LLC is wholly owned by Dipender Saluja. TIF Partners, LLC is owned by Ion Yadigaroglu and Dipender Saluja. TIGF Partners, LLC is owned by Ion Yadigaroglu, Dipender Saluja and Capricorn Investment Group, LLC. The business address of each of Capricorn-Libra Investment Group, L.P., Technology Impact Fund, L.P., Technology Impact Growth Fund, L.P., Capricorn-Libra Partners, LLC, TIF Partners, LLC and TIGF Partners, LLC is 250 University Avenue Palo Alto, CA 94301.
|
(6) |
Messrs. Hoffman and Pincus may be deemed to beneficially own Joby Aviation common stock and Joby Aviation private placement warrants held by Reinvent Sponsor LLC by virtue of their shared control over Reinvent Sponsor LLC. Each of Messrs. Hoffman and Pincus disclaims beneficial ownership of the securities held by Reinvent Sponsor LLC except to the extent of their actual pecuniary interest therein. The address of Reinvent Sponsor LLC is c/o Reinvent 215 Park Avenue, Floor 11, New York, NY 10003.
|
(7) |
Consists of (i) 17,130,000 shares of Joby Aviation common stock held by Reinvent Sponsor LLC, (ii) 11,533,333 shares of Joby Aviation common stock underlying the private placement warrants held by Reinvent Sponsor LLC, (iii) 1,200,000 shares of Joby Aviation common stock held by Workplay Ventures LLC, (iv) 800,000 shares of Joby Aviation common stock held by MJP DT Holdings LLC and (v) 2,500,000 shares of Joby Aviation common stock held by Reinvent Capital Fund LP. Mr. Pincus may be deemed to beneficially own the shares held by Workplay Ventures LLC, MJP DT Holdings LLC and Reinvent Capital Fund LP. Mr. Pincus disclaims beneficial ownership of the securities held by Workplay Ventures LLC, MJP DT Holdings LLC and Reinvent Capital Fund LP, except to the extent of his actual pecuniary interest therein. The address of Mr. Pincus and Reinvent Capital Fund LP is c/o Reinvent 215 Park Avenue, Floor 11, New York, NY 10003. The address of Workplay Ventures LLC is 3450 Sacramento St., Unit 720, San Francisco, CA 94118. The address of MJP DT Holdings LLC is 3450 Sacramento St, Unit 722, San Francisco, CA 94118.
|
(8) |
Consists of (i) 29,748,420 shares of Joby Aviation common stock held by JoeBen Bevirt, as trustee of The Joby Trust, (ii) 34,571,963 shares of Joby Aviation common stock held by Joby Holdings, Inc. for which the JoeBen Bevirt 2020 Descendants Trust, dated December 26, 2020 is expected to exercise voting and dispositive power, and (iii) 34,375,767 shares of Joby Aviation common stock held by Joby Holdings, Inc. for which The Joby Trust is expected to exercise voting and dispositive power. Mr. Bevirt has voting and dispositive power over the shares held in the Joby Trust and the JoeBen Bevirt 2020 Descendants Trust, dated December 26, 2020, and therefore may be deemed to be the beneficial owner of such shares. The
|
business address for The Joby Trust and the JoeBen Bevirt 2020 Descendants Trust, dated December 26, 2020, is 2155 Delaware Avenue, Santa Cruz, CA 95060. |
(9) |
Consists of (i) 77,786 shares of Joby Aviation common stock and (ii) 244,133 shares of Joby Aviation common stock issuable upon exercise of outstanding stock options exercisable within 60 days from August 10, 2021.
|
(10) |
Consists of (i) 57,610 shares of Joby Aviation common stock and (ii)90,734 shares of Joby Aviation common stock issuable upon exercise of outstanding stock options exercisable within 60 days from August 10, 2021.
|
(11) |
Consists of (i) 17,130,000 shares of Joby Aviation common stock held by Reinvent Sponsor LLC, (ii) 11,533,333 shares of Joby Aviation common stock underlying the private placement warrants held by Reinvent Sponsor LLC and (iii) 2,000,000 shares of Joby Aviation common stock held by Reprogrammed Interchange LLC (“Reprogrammed”). Mr. Hoffman may be deemed to beneficially own the shares held by Reprogrammed by virtue of his voting and investment control over Reprogrammed. The address of Mr. Hoffman is c/o Reinvent 215 Park Avenue, Floor 11, New York, NY 10003. The address of Reprogrammed is c/o Frank Huang, Freeland Cooper & Foreman, 150 Spear Street, Suite 1800, San Francisco, CA 94105.
|
(12) |
Consists of 9,781 shares of Joby Aviation common stock issuable upon exercise of outstanding stock options exercisable within 60 days from August 10, 2021.
|
(13) |
Consists of (i) 72,871,831 shares of Joby Aviation common stock held by Toyota Motor Corporation, (ii) 5,813,286 shares of Joby Aviation common stock held by Toyota A.I. Ventures Fund I, L.P., and (iii) 67,494 shares of Joby Aviation common stock held by Toyota A.I. Ventures Parallel Fund
I-A,
L.P.Toyota Motor Corporation has dispositive control over the shares held by Toyota A.I. Ventures Fund I, L.P. and Toyota A.I. Ventures Parallel Fund
I-A,
L.P. and may be deemed to beneficially own such shares. Mr. Kuffner is a director of Toyota Motor Corporation and disclaims beneficial ownership of all applicable shares except to the extent of his actual pecuniary interest in such shares.
|
(14) |
Consists of (i) 10,193,889 shares of Joby Aviation common stock held by Capricorn-Libra Investment Group, L.P., (ii) 26,086,247 shares of Joby Aviation common stock held by Technology Impact Fund, L.P., and (iii) 1,175,460 shares of Joby Aviation common stock held by Technology Impact Growth Fund, L.P. Capricorn-Libra Partners, LLC is the general partner of Capricorn-Libra Investment Group, L.P., TIF Partners, LLC is the general partner of Technology Impact Fund, L.P. and TIGF Partners, LLC is the general partner of Technology Impact Growth Fund, L.P. Capricorn-Libra Partners, LLC is wholly owned by Dipender Saluja. TIF Partners, LLC is owned by Ion Yadigaroglu and Dipender Saluja. TIGF Partners, LLC is owned by Ion Yadigaroglu, Dipender Saluja and Capricorn Investment Group, LLC. Mr. Saluja disclaims beneficial ownership of all applicable shares except to the extent of his actual pecuniary interest in such shares.
|
Securities Beneficially
Owned prior to this
Offering
|
Securities to be Sold in
this Offering
|
Securities Beneficially Owned after this Offering
|
||||||||||||||||||||||||||||||
Name of Selling Shareholder
|
Shares of
Common Stock |
Warrants
|
Shares of
Common Stock
(1)
|
Warrants
(2)
|
Shares of
Common Stock |
Percentage
|
Warrants
|
Percentage
|
||||||||||||||||||||||||
12 West Capital Fund LP
(5)
|
183,500 | — | 183,500 | — | — | — | — | — | ||||||||||||||||||||||||
12 West Capital Offshore Fund LP
(6)
|
116,500 | — | 116,500 | — | — | — | — | — | ||||||||||||||||||||||||
2016 GST EXEMPT TR FBO BECHET ALLEN U/A DTD 12/31/2016
(7)
|
20,000 | — | 20,000 | — | — | — | — | — | ||||||||||||||||||||||||
2016 GST EXEMPT TR FBO MANZIE ALLEN U/A DTD 12/31/2016
(8)
|
20,000 | — | 20,000 | — | — | — | — | — | ||||||||||||||||||||||||
345 Partners SPV2 LLC
(9)
|
150,000 | — | 150,000 | — | — | — | — | — | ||||||||||||||||||||||||
8VC Entrepreneurs Fund I, L.P.
(4)
|
404,350 | — | 404,350 | — | — | — | — | — | ||||||||||||||||||||||||
8VC Fund I, L.P.
(4)
|
23,587,316 | — | 23,587,316 | — | — | — | — | — | ||||||||||||||||||||||||
Algonic Capital, LP
(10)
|
140,000 | — | 140,000 | — | — | — | — | — | ||||||||||||||||||||||||
Allan Teh
|
200,000 | — | 200,000 | — | — | — | — | — | ||||||||||||||||||||||||
Alyeska Master Fund, L.P.
|
2,500,000 | — | 2,500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Athanor International Master Fund,
LP
(11)
|
18,890 | — | 18,890 | — | — | — | — | — | ||||||||||||||||||||||||
Athanor Master Fund, LP
(12)
|
81,110 | — | 81,110 | — | — | — | — | — | ||||||||||||||||||||||||
Atreides Foundation Master Fund LP
(13)
|
1,000,000 | — | 1,000,000 | — | — | — | — | — | ||||||||||||||||||||||||
Baupost Group Securities, L.L.C
(14)
|
10,000,000 | — | 10,000,000 | — | — | — | — | — | ||||||||||||||||||||||||
BCC Investment Trust
(15)
|
50,000 | — | 50,000 | — | — | — | — | — | ||||||||||||||||||||||||
BGF ESG Fixed Income Global Opportunities Fund
(114)
|
31,850 | — | 31,850 | — | — | — | — | — | ||||||||||||||||||||||||
BGF Fixed Income Global Opportunities Fund
(114)
|
295,290 | — | 295,290 | — | — | — | — | — | ||||||||||||||||||||||||
BlackRock Capital Allocation Trust
(114)
|
200,370 | — | 200,370 | — | — | — | — | — | ||||||||||||||||||||||||
BlackRock Global Allocation Collective Fund
(114)
|
73,070 | — | 73,070 | — | — | — | — | — | ||||||||||||||||||||||||
BlackRock Global Allocation Fund, Inc.
(114)
|
737,673 | — | 737,673 | — | — | — | — | — | ||||||||||||||||||||||||
BlackRock Global Allocation Portfolio of BlackRock Series Fund, Inc.
(114)
|
5,720 | — | 5,720 | — | — | — | — | — | ||||||||||||||||||||||||
BlackRock Global Allocation V.I. Fund of BlackRock Variable Series Funds, Inc.
(114)
|
244,040 | — | 244,040 | — | — | — | — | — | ||||||||||||||||||||||||
BlackRock Global Funds — Global Allocation Fund
(114)
|
459,380 | — | 459,380 | — | — | — | — | — | ||||||||||||||||||||||||
BlackRock Global Funds — Global Dynamic Equity Fund
(114)
|
18,790 | — | 18,790 | — | — | — | — | — | ||||||||||||||||||||||||
BlackRock Global Funds — World Technology Fund
(114)
|
3,613,433 | — | 3,613,433 | — | — | — | — | — |
Securities Beneficially
Owned prior to this
Offering
|
Securities to be Sold in
this Offering
|
Securities Beneficially Owned after this Offering
|
||||||||||||||||||||||||||||||
Name of Selling Shareholder
|
Shares of
Common Stock |
Warrants
|
Shares of
Common Stock
(1)
|
Warrants
(2)
|
Shares of
Common Stock |
Percentage
|
Warrants
|
Percentage
|
||||||||||||||||||||||||
BlackRock Global Long/Short Credit Fund of BlackRock Funds IV
(114)
|
43,700 | — | 43,700 | — | — | — | — | — | ||||||||||||||||||||||||
BlackRock Strategic Income Opportunities Portfolio of BlackRock Funds V
(114)
|
1,033,220 | — | 1,033,220 | — | — | — | — | — | ||||||||||||||||||||||||
BlackRock Technology Opportunities Fund, a series of BlackRock Funds
(114)
|
2,473,524 | — | 2,473,524 | — | — | — | — | — | ||||||||||||||||||||||||
BlackRock Total Return Bond Fund
(114)
|
169,050 | — | 169,050 | — | — | — | — | — | ||||||||||||||||||||||||
Booth & Co FBO Fidelity Contrafund: Fidelity Contrafund K6
(16)(17)
|
199,579 | — | 199,579 | — | — | — | — | — | ||||||||||||||||||||||||
Booth & Co fbo Fidelity Contrafund: Fidelity Flex Opportunistic Insights Fund
(16)(18)
|
215 | — | 215 | — | — | — | — | — | ||||||||||||||||||||||||
Booth & Co FBO Fidelity Securities Fund: Fidelity Blue Chip Growth K6 Fund
(16)(19)
|
81,595 | — | 81,595 | — | — | — | — | — | ||||||||||||||||||||||||
Booth & Co fbo Fidelity Securities Fund: Fidelity Flex Large Cap Growth Fund
(16)(20)
|
1,693 | — | 1,693 | — | — | — | — | — | ||||||||||||||||||||||||
Booth & Co. fbo Fidelity Puritan Trust: Fidelity Balanced K6 Fund —Information Technology
Sub-portfolio
(16)(21)
|
7,948 | — | 7,948 | — | — | — | — | — | ||||||||||||||||||||||||
Booth & Co., LLC fbo Variable Insurance Products Fund III: VIP Growth Opportunities Portfolio
(16)(22)
|
179,299 | — | 179,299 | — | — | — | — | — | ||||||||||||||||||||||||
Booth and Co FBO Fidelity Puritan Trust: Fidelity Balanced Fund — Information Technology Sub
(16)(23)
|
540,323 | — | 540,323 | — | — | — | — | — | ||||||||||||||||||||||||
Capricorn-Libra Investment Group, L.P.
(4)(24)
|
10,193,889 | — | 10,193,889 | — | — | — | — | — | ||||||||||||||||||||||||
Charles Hudson
(4)(111)
|
30,000 | 30,000 | — | — | — | — | — | |||||||||||||||||||||||||
CLAM Partners, LLC
(25)
|
100,000 | — | 100,000 | — | — | — | — | — | ||||||||||||||||||||||||
Cowbird Capital Master Fund Ltd
(26)
|
191,000 | — | 191,000 | — | — | — | — | — | ||||||||||||||||||||||||
Daniel Garon
|
3,000 | — | 3,000 | — | — | — | — | — | ||||||||||||||||||||||||
David B. Heller
|
100,000 | — | 100,000 | — | — | — | — | — | ||||||||||||||||||||||||
David Cohen
(109)
|
20,000 | — | 20,000 | — | — | — | — | — | ||||||||||||||||||||||||
Dayton Family Enterprises, LLC
(4)
|
3,003,543 | — | 3,003,543 | — | — | — | — | — | ||||||||||||||||||||||||
Dayton Family Investments, LLC
(4)
|
1,443,652 | — | 1,443,652 | — | — | — | — | — | ||||||||||||||||||||||||
Dayton Joby Trust 1, Dated November 18, 2020
(4)
|
6,145,923 | — | 6,145,923 | — | — | — | — | — | ||||||||||||||||||||||||
Dayton Joby Trust 2, Dated December 2, 2020
(4)
|
6,145,923 | — | 6,145,923 | — | — | — | — | — | ||||||||||||||||||||||||
Diameter Master Fund LP
|
250,000 | — | 250,000 | — | — | — | — | — | ||||||||||||||||||||||||
Diego Berdakin
|
100,000 | — | 100,000 | — | — | — | — | — | ||||||||||||||||||||||||
Donna Meyers
|
10,000 | — | 10,000 | — | — | — | — | — | ||||||||||||||||||||||||
DSAM + Master Fund
(27)
|
463,200 | — | 463,200 | — | — | — | — | — | ||||||||||||||||||||||||
DSAM Alpha + Master Fund
(28)
|
387,800 | — | 387,800 | — | — | — | — | — | ||||||||||||||||||||||||
DSAM
Co-Invest
Ltd
(29)
|
300,000 | — | 300,000 | — | — | — | — | — | ||||||||||||||||||||||||
Emerson Collective Investments,
LLC
(30)
|
1,500,000 | — | 1,500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Fei-Fei
Li
(4)(113)
|
30,000 | 30,000 | — | — | — | — | — | |||||||||||||||||||||||||
Fitzgerald Family Holdings LLC
(31)
|
60,000 | — | 60,000 | — | — | — | — | — | ||||||||||||||||||||||||
FLAPPER CO fbo FIAM Target Date Blue Chip Growth Commingled Pool
(32)
|
58,309 | — | 58,309 | — | — | — | — | — |
Securities Beneficially
Owned prior to this
Offering
|
Securities to be Sold in
this Offering
|
Securities Beneficially Owned after this Offering
|
||||||||||||||||||||||||||||||
Name of Selling Shareholder
|
Shares of
Common Stock |
Warrants
|
Shares of
Common Stock
(1)
|
Warrants
(2)
|
Shares of
Common Stock |
Percentage
|
Warrants
|
Percentage
|
||||||||||||||||||||||||
FMAP SOC Limited
(33)
|
38,407 | — | 38,407 | — | — | — | — | — | ||||||||||||||||||||||||
Gary Leff
|
40,000 | — | 40,000 | — | — | — | — | — | ||||||||||||||||||||||||
General Advance Opportunities,
LLC
(34)
|
87,000 | — | 87,000 | — | — | — | — | — | ||||||||||||||||||||||||
Ghisallo Master Fund LP
(35)
|
500,000 | — | 500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Hawkeye Capital Master
(36)
|
550,000 | — | 550,000 | — | — | — | — | — | ||||||||||||||||||||||||
IAM Investments ICAV — O’Connor Event Driven UCITS Fund
(37)
|
340 | — | 340 | — | — | — | — | — | ||||||||||||||||||||||||
ICS Opportunities, Ltd
(38)
|
75,000 | — | 75,000 | — | — | — | — | — | ||||||||||||||||||||||||
Inherent ESG Opportunity Master, LP
|
2,000,000 | — | 2,000,000 | — | — | — | — | — | ||||||||||||||||||||||||
Integrated Core Strategies (US)
LLC
(39)
|
1,130,600 | — | 1,130,600 | — | — | — | — | — | ||||||||||||||||||||||||
Intel Capital Corporation
(4)(40)
|
38,947,301 | — | 38,947,301 | — | — | — | — | — | ||||||||||||||||||||||||
IPV Opportunities III LLC
(41)
|
250,000 | — | 250,000 | — | — | — | — | — | ||||||||||||||||||||||||
Jane Street Global Trading, LLC
|
500,000 | — | 500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Jeffrey Lo
|
100,000 | — | 100,000 | — | — | — | — | — | ||||||||||||||||||||||||
JetBlue Technology Ventures, L.L.C.
|
3,542,592 | — | 3,542,592 | — | — | — | — | — | ||||||||||||||||||||||||
Joby Holdings, Inc.
|
98,802,553 | — | 98,802,553 | — | — | — | — | — | ||||||||||||||||||||||||
Joby Trust
(4)(42)
|
29,748,420 | — | 29,748,420 | — | — | — | — | — | ||||||||||||||||||||||||
Kaneda Investments LLC
(43)
|
415,000 | — | 415,000 | — | — | — | — | — | ||||||||||||||||||||||||
Keystone Positive Change Investment Trust plc
(44)
|
100,000 | — | 100,000 | — | — | — | — | — | ||||||||||||||||||||||||
Kristina Salen
(4)(112)
|
30,000 | 30,000 | — | — | — | — | — | |||||||||||||||||||||||||
Levitate Capital LP
(45)
|
500,000 | — | 500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Linden Capital L.P.
(46)
|
250,000 | — | 250,000 | — | — | — | — | — | ||||||||||||||||||||||||
LMA SPC — MAP 112 Segregated Portfolio
(47)
|
143,400 | — | 143,400 | — | — | — | — | — | ||||||||||||||||||||||||
LNZ Investments, LLLP
|
415,000 | — | 415,000 | — | — | — | — | — | ||||||||||||||||||||||||
Lugard Road Capital Master Fund,
LP
(48)
|
626,375 | — | 626,375 | — | — | — | — | — | ||||||||||||||||||||||||
Luxor Capital Partners Long Offshore Master Fund, LP
(48)
|
6,955 | — | 6,955 | — | — | — | — | — | ||||||||||||||||||||||||
Luxor Capital Partners Long, LP
(48)
|
20,832 | — | 20,832 | — | — | — | — | — | ||||||||||||||||||||||||
Luxor Capital Partners Offshore Master Fund, LP
(48)
|
399,807 | — | 399,807 | — | — | — | — | — | ||||||||||||||||||||||||
Luxor Capital Partners, LP
(48)
|
637,433 | — | 637,433 | — | — | — | — | — | ||||||||||||||||||||||||
Luxor Gibraltar,
LP-Series
1
(48)
|
41,877 | — | 41,877 | — | — | — | — | — | ||||||||||||||||||||||||
Luxor Wavefront, LP
(48)
|
266,721 | — | 266,721 | — | — | — | — | — | ||||||||||||||||||||||||
Mag & Co fbo Fidelity Advisor Series I: Fidelity Advisor Growth Opportunities Fund — Information Technology Sub
(16)(49)
|
1,212,194 | — | 1,212,194 | — | — | — | — | — | ||||||||||||||||||||||||
Mag & Co fbo Fidelity Blue Chip Growth Commingled Pool
(16)(50)
|
26,454 | — | 26,454 | — | — | — | — | — | ||||||||||||||||||||||||
Mag & Co fbo Fidelity Contrafund Commingled Pool
(16)(51)
|
413,534 | — | 413,534 | — | — | — | — | — | ||||||||||||||||||||||||
Mag & Co fbo Fidelity Contrafund: Fidelity Advisor New Insights Fund — Sub A
(16)(52)
|
207,438 | — | 207,438 | — | — | — | — | — | ||||||||||||||||||||||||
Mag & Co fbo Fidelity Contrafund: Fidelity Series Opportunistic Insights Fund
(16)(53)
|
81,901 | — | 81,901 | — | — | — | — | — | ||||||||||||||||||||||||
Mag & Co fbo Fidelity Contrafund: Fidelity Contrafund
(16)(54)
|
1,388,830 | — | 1,388,830 | — | — | — | — | — | ||||||||||||||||||||||||
Mag & Co fbo Fidelity Securities Fund: Fidelity Blue Chip Growth Fund
(16)(55)
|
742,652 | — | 742,652 | — | — | — | — | — |
Securities Beneficially
Owned prior to this
Offering
|
Securities to be Sold in
this Offering
|
Securities Beneficially Owned after this Offering
|
||||||||||||||||||||||||||||||
Name of Selling Shareholder
|
Shares of
Common Stock |
Warrants
|
Shares of
Common Stock
(1)
|
Warrants
(2)
|
Shares of
Common Stock |
Percentage
|
Warrants
|
Percentage
|
||||||||||||||||||||||||
Mag & Co fbo Fidelity Select Portfolios: Select Technology Portfolio
(16)(56)
|
787,571 | — | 787,571 | — | — | — | — | — | ||||||||||||||||||||||||
Mag & Co fbo Fidelity Select Portfolios: Select Automotive Portfolio
(16)(57)
|
13,300 | — | 13,300 | — | — | — | — | — | ||||||||||||||||||||||||
Mag & Co fbo Variable Insurance Products Fund II: VIP Contrafund Portfolio — Subportfolio A
(16)(58)
|
136,490 | — | 136,490 | — | — | — | — | — | ||||||||||||||||||||||||
Marcho Partners Master Fund ICAV
(59)
|
500,000 | — | 500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Marianas Fund LLC
(60)
|
1,500,000 | — | 1,500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Master Total Return Portfolio of Master Bond LLC
|
580,540 | — | 580,540 | — | — | — | — | — | ||||||||||||||||||||||||
Michael Thompson
(108)
|
1,000,000 | — | 1,000,000 | — | — | — | — | — | ||||||||||||||||||||||||
Middlefield Ventures, Inc.
(4)(61)
|
7,093,485 | — | 7,093,485 | — | — | — | — | — | ||||||||||||||||||||||||
Miguel Fidalgo
|
50,000 | — | 50,000 | — | — | — | — | — | ||||||||||||||||||||||||
MJP DT Holdings LLC
(4)(62)
|
800,000 | — | 800,000 | — | — | — | — | — | ||||||||||||||||||||||||
MMF LT, LLC
(63)
|
1,000,000 | — | 1,000,000 | — | — | — | — | — | ||||||||||||||||||||||||
Monty Kerr
|
50,000 | — | 50,000 | — | — | — | — | — | ||||||||||||||||||||||||
MRS Trust
(64)
|
100,000 | — | 100,000 | — | — | — | — | — | ||||||||||||||||||||||||
Nineteen77 Global Merger Arbitrage Master Limited
(65)
|
45,990 | — | 45,990 | — | — | — | — | — | ||||||||||||||||||||||||
Nineteen77 Global Merger Arbitrage Opportunity Fund
(66)
|
7,680 | — | 7,680 | — | — | — | — | — | ||||||||||||||||||||||||
Nineteen77 Global Multi-Strategy Alpha Master Limited
(67)
|
45,990 | — | 45,990 | — | — | — | — | — | ||||||||||||||||||||||||
Peter Rahal
|
300,000 | — | 300,000 | — | — | — | — | — | ||||||||||||||||||||||||
Powhatan & Co., LLC fbo Fidelity Advisor Series I: Fidelity Advisor Balanced Fund — Information Technology Sub
(16)(68)
|
72,057 | — | 72,057 | — | — | — | — | — | ||||||||||||||||||||||||
Powhatan & Co., LLC fbo Variable Insurance Products Fund III: VIP Balanced Portfolio- Information Technology Sub
(16)(69)
|
78,801 | — | 78,801 | — | — | — | — | — | ||||||||||||||||||||||||
Prime Access Capital, LLC
(70)
|
100,000 | — | 100,000 | — | — | — | — | — | ||||||||||||||||||||||||
PureLake Joby LLC
(71)
|
200,000 | — | 200,000 | — | — | — | — | — | ||||||||||||||||||||||||
Reinvent Capital Fund LP
(72)
|
2,500,000 | — | 2,500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Reinvent Sponsor LLC
(4)(107)
|
28,663,333 | 11,533,333 | 28,663,333 | 11,533,333 | — | — | — | — | ||||||||||||||||||||||||
Reprogrammed Interchange LLC
(4)(73)
|
2,000,000 | — | 2,000,000 | — | — | — | — | — | ||||||||||||||||||||||||
Reverent Rook, LLC
|
50,000 | — | 50,000 | — | — | — | — | — | ||||||||||||||||||||||||
Robert Scott McLellan
|
100,000 | — | 100,000 | — | — | — | — | — | ||||||||||||||||||||||||
Sciarra Foundation
(74)
|
50,000 | — | 50,000 | — | — | — | — | — | ||||||||||||||||||||||||
Sciarra Management Trust
(4)(75)
|
49,540,579 | — | 49,540,579 | — | — | — | — | — | ||||||||||||||||||||||||
Scottish Mortgage Investment Trust
plc
(76)
|
4,900,000 | — | 4,900,000 | — | — | — | — | — | ||||||||||||||||||||||||
Senator Global Opportunity Master Fund L.P.
|
1,500,000 | — | 1,500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Serengeti Caracal Master Fund LP
|
200,000 | — | 200,000 | — | — | — | — | — | ||||||||||||||||||||||||
Serengeti Caracal Multi-Series Master LLC—Series AL
|
500,000 | — | 500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Serengeti Multi-Series Master LLC — Series CII
|
50,000 | — | 50,000 | — | — | — | — | — | ||||||||||||||||||||||||
Serengeti Multi-Series Master LLC — Series USF
|
100,000 | — | 100,000 | — | — | — | — | — | ||||||||||||||||||||||||
Serengeti Opportunities MMLP
|
400,000 | — | 400,000 | — | — | — | — | — |
Securities Beneficially
Owned prior to this
Offering
|
Securities to be Sold in
this Offering
|
Securities Beneficially Owned after this Offering
|
||||||||||||||||||||||||||||||
Name of Selling Shareholder
|
Shares of
Common Stock |
Warrants
|
Shares of
Common Stock
(1)
|
Warrants
(2)
|
Shares of
Common Stock |
Percentage
|
Warrants
|
Percentage
|
||||||||||||||||||||||||
Seth G. Berman 2012 Irrevocable
Trust
(77)
|
50,000 | — | 50,000 | — | — | — | — | — | ||||||||||||||||||||||||
Sharing LLC Joby PS
(78)
|
300,000 | — | 300,000 | — | — | — | — | — | ||||||||||||||||||||||||
Sherry Coutu
(4)(110)
|
30,000 | 30,000 | — | — | — | — | — | |||||||||||||||||||||||||
Silver Rock Opportunistic Credit Fund LP
(79)
|
70,811 | — | 70,811 | — | — | — | — | — | ||||||||||||||||||||||||
Silver Rock Opportunities Fund I
LP
(80)
|
97,899 | — | 97,899 | — | — | — | — | — | ||||||||||||||||||||||||
Slate Path Master Fund LP
|
3,500,000 | — | 3,500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Spring Creek Capital, LLC
|
2,500,000 | — | 2,500,000 | — | — | — | — | — | ||||||||||||||||||||||||
SRF Plan Assets Opportunistic Credit Fund LP
(81)
|
42,883 | — | 42,883 | — | — | — | — | — | ||||||||||||||||||||||||
Star V Partners LLC
(82)
|
109,000 | — | 109,000 | — | — | — | — | — | ||||||||||||||||||||||||
Strategic Income Opportunities Bond Fund
|
20,350 | — | 20,350 | — | — | — | — | — | ||||||||||||||||||||||||
Stuart Miller
|
400,000 | — | 400,000 | — | — | — | — | — | ||||||||||||||||||||||||
Suvretta Long Master Fund, Ltd.
(83)
|
2,000 | — | 2,000 | — | — | — | — | — | ||||||||||||||||||||||||
Suvretta Master Fund, Ltd.
(84)
|
298,000 | — | 298,000 | — | — | — | — | — | ||||||||||||||||||||||||
Tao Invest VI LLC
(85)
|
300,000 | — | 300,000 | — | — | — | — | — | ||||||||||||||||||||||||
Technology Impact Fund, L.P.
(4)(86)
|
28,686,247 | — | 28,686,247 | — | — | — | — | — | ||||||||||||||||||||||||
Technology Impact Growth Fund,
LP
(4)(87)
|
2,075,460 | — | 2,075,460 | — | — | — | — | — | ||||||||||||||||||||||||
The Alison Pincus Living Trust
(88)
|
100,000 | — | 100,000 | — | — | — | — | — | ||||||||||||||||||||||||
The Dayton Children’s Trust
(4)
|
290,404 | — | 290,404 | — | — | — | — | — | ||||||||||||||||||||||||
The Hermine and David Heller Foundation
(89)
|
50,000 | — | 50,000 | — | — | — | — | — | ||||||||||||||||||||||||
Third Point Loan LLC
(90)
|
2,500,000 | — | 2,500,000 | — | — | — | — | — | ||||||||||||||||||||||||
THISBE & CO fbo Fidelity NorthStar Fund — Sub D
(16)(91)
|
50,675 | — | 50,675 | — | — | — | — | — | ||||||||||||||||||||||||
THISBE & CO fbo Fidelity U.S. Growth Opportunities Investment Trust
(16)(92)
|
15,856 | — | 15,856 | — | — | — | — | — | ||||||||||||||||||||||||
Thisbe & Co fbo Fidelity Insights Investment Trust
(16)(93)
|
72,012 | — | 72,012 | — | — | — | — | — | ||||||||||||||||||||||||
THISBE & Co: FBO Fidelity Blue Chip Growth Institutional Trust
(15)(94)
|
2,006 | — | 2,006 | — | — | — | — | — | ||||||||||||||||||||||||
Toyota A.I. Ventures Fund I, L.P.
(4)(95)
|
5,813,286 | — | 5,813,286 | — | — | — | — | — | ||||||||||||||||||||||||
Toyota A.I. Ventures Parallel Fund
I-A,
L.P.
(4)(96)
|
67,494 | — | 67,494 | — | — | — | — | — | ||||||||||||||||||||||||
Toyota Motor Corporation
(4)(97)
|
72,871,831 | — | 72,871,831 | — | — | — | — | — | ||||||||||||||||||||||||
TPG Public Equity Partners Long Opportunities Master Fund, L.P.
(98)
|
573,500 | — | 573,500 | — | — | — | — | — | ||||||||||||||||||||||||
TPG Public Equity Partners Master Fund, L.P.
(98)
|
851,255 | — | 851,255 | — | — | — | — | — | ||||||||||||||||||||||||
TPG Public Equity Partners, LP
(98)
|
75,245 | — | 75,245 | — | — | — | — | — | ||||||||||||||||||||||||
Uber Technologies, Inc.
(4)
|
25,564,794 | — | 25,564,794 | — | — | — | — | — | ||||||||||||||||||||||||
Vellar Opportunities Fund Master,
Ltd.
(99)
|
250,000 | — | 250,000 | — | — | — | — | — | ||||||||||||||||||||||||
Vy Fund II, LP
(100)
|
2,500,000 | — | 2,500,000 | — | — | — | — | — | ||||||||||||||||||||||||
WARMWIND + CO fbo Fidelity Advisor Series I: Fidelity Advisor Series Growth Opportunities Fund
(16)(101)
|
41,976 | — | 41,976 | — | — | — | — | — | ||||||||||||||||||||||||
WAVECHART + CO fbo Fidelity Securities Fund: Fidelity Series Blue Chip Growth Fund
(16)(102)
|
87,292 | — | 87,292 | — | — | — | — | — | ||||||||||||||||||||||||
Weiss Ventures I LLC
(103)
|
2,500,000 | — | 2,500,000 | — | — | — | — | — | ||||||||||||||||||||||||
Woodline Partners LP
(104)
|
100,000 | — | 100,000 | — | — | — | — | — |
(1) |
The amounts set forth in this column are the number of shares of common stock that may be offered by such Selling Shareholder using this prospectus. These amounts do not represent any other shares of our common stock that the Selling Shareholder may own beneficially or otherwise.
|
(2) |
The amounts set forth in this column are the number of warrants that may be offered by such Selling Shareholder using this prospectus. These amounts do not represent any other warrants that the Selling Shareholder may own beneficially or otherwise.
|
(3) |
[Reserved]
|
(4) |
These securities are being registered for resale in accordance with the terms of the Registration Rights Agreement, as described under “
Certain Relationships and Related Party Transactions — Registration Rights Agreement
|
(5) |
Joel Ramin is the Portfolio Manager of 12 West Capital Offshore LP. The address of 12 West Capital Offshore Fund LP is 90 Park Avenue, 40th Floor, New York, NY 10016.
|
(6) |
Joel Ramin is the Portfolio Manager of 12 West Capital Offshore Fund LP. The address of 12 West Capital Offshore Fund LP is 90 Park Avenue, 40th Floor, New York, NY 10016.
|
(7) |
Erika Aaronson and Woody Allen are the Trustees of the GST Exempt Trust FBO Bechet Allen. The address is 23611 Malibu Colony Road #58A, Malibu, CA 90265.
|
(8) |
Erika Aaronson and Woody Allen are the Trustees of the GST Exempt Trust FBO Manzie Allen. The address is 23611 Malibu Colony Road #58A, Malibu, CA 90265.
|
(9) |
David Faugno, Gordy Holterman, Michael Perone, and David Withers are Managing Members of 345 Partners SPV2 LLC. The address of 345 Partners SPV2 LLC is 17148 Mill Rise Way, Los Gatos, CA 95030.
|
(10) |
Marc I. Stern is the Managing Member of Algonic Partners, LLC, the general partner of Algonic Capital, LP. The address of Algonic Capital, LP is 865 S. Figueroa Street, Suite 1800, Los Angeles, CA 90017.
|
(11) |
Athanor International Fund GP, LP is the general partner of Athanor International Master Fund, L. Parvinder Thiara is the general partner of Athanor International Fund GP, LP. The address of Athanor International Master Fund, LP is 888 Seventh Avenue, 21st Floor, New York, NY 10019.
|
(12) |
Athanor Capital Partners, LP is the general partner of Athanor Master Fund, L. Parvinder Thiara is the general partner of Athanor Capital Partners, LP. The address of Athanor Master Fund, LP is 888 Seventh Avenue, 21st Floor, New York, NY 10019.
|
(13) |
Gavin Baker is the Managing Partner & CIO of Atreides Management, LP, the investment manager for Atreides Foundation Master Fund LP. The address of Atreides Foundation Master Fund LP is One International Place, Suite 4410, Boston, MA 02110.
|
(14) |
The Baupost Group, L.L.C. is a registered investment adviser and acts as the investment adviser and general partner to certain private investment limited partnerships on whose behalf these shares were indirectly purchased. The Baupost Group, L.L.C., Baupost Group GP, L.L.C. and Seth A. Klarman have shared voting and investment power over these shares of common stock. Baupost Group GP, L.L.C. and Mr. Klarman disclaim beneficial ownership of such securities except to the extent of their pecuniary interest therein, if any. The address of Baupost Group Securities, L.L.C. is 10 Saint James Avenue, Suite 1700, Boston, MA 02116.
|
(15) |
Phillip L. Spector is the Trustee of the BCC Investment Trust. The address is 16381 Maddalena Place, Delray Beach, FL 33446.
|
(16) |
These accounts are managed by direct or indirect subsidiaries of FMR LLC. Abigail P. Johnson is a Director, the Chairman, the Chief Executive Officer and the President of FMR LLC.
|
Members of the Johnson family, including Abigail P. Johnson, are the predominant owners, directly or through trusts, of Series B voting common shares of FMR LLC, representing 49% of the voting power of FMR LLC. The Johnson family group and all other Series B shareholders have entered into a shareholders’ voting agreement under which all Series B voting common shares will be voted in accordance with the majority vote of Series B voting common shares. Accordingly, through their ownership of voting common shares and the execution of the shareholders’ voting agreement, members of the Johnson family may be deemed, under the Investment Company Act of 1940, to form a controlling group with respect to FMR LLC.
|
Neither FMR LLC nor Abigail P. Johnson has the sole power to vote or direct the voting of the shares owned directly by the various investment companies registered under the Investment Company Act (“Fidelity Funds”) advised by Fidelity Management & Research Company (“FMR Co”), a wholly owned subsidiary of FMR LLC, which power resides with the Fidelity Funds’ Boards of Trustees. Fidelity Management & Research Company carries out the voting of the shares under written guidelines established by the Fidelity Funds’ Boards of Trustees.
|
(17) |
The address of Fidelity Contrafund: Fidelity Contrafund K6 is: The Northern Trust Company, Attn: Trade Securities Processing, 333 South Wabash Ave, 32nd Floor, Chicago, Illinois 60604.
|
(18) |
The address of Fidelity Contrafund: Fidelity Flex Opportunistic Insights Fund is: The Northern Trust Company, Attn: Trade Securities Processing, 333 South Wabash Ave, 32nd Floor, Chicago, Illinois 60604.
|
(19) |
The address of Fidelity Securities Fund: Fidelity Blue Chip Growth K6 Fund is: The Northern Trust Company, Attn: Trade Securities Processing, 333 South Wabash Ave, 32nd Floor, Chicago, Illinois 60604.
|
(20) |
The address of Fidelity Securities Fund: Fidelity Flex Large Cap Growth Fund is: The Northern Trust Company Attn: Trade Securities Processing, 333 South Wabash Ave, 32nd Floor, Chicago, Illinois 60604.
|
(21) |
The address of Fidelity Puritan Trust: Fidelity Balanced K6 Fund — Information Technology
Sub-portfolio
is: The Northern Trust Company Attn: Trade Securities Processing, 333 South Wabash Ave, 32nd Floor, Chicago, Illinois 60604.
|
(22) |
The address of Variable Insurance Products Fund III: VIP Growth Opportunities Portfolio is: The Northern Trust Company, Attn: Trade Securities Processing, 333 South Wabash Ave, 32nd Floor, Chicago, Illinois 60604.
|
(23) |
The address of Fidelity Puritan Trust: Fidelity Balanced Fund — Information Technology Sub is: The Northern Trust Company, Attn: Trade Securities Processing, 333 South Wabash Ave, 32nd Floor, Chicago, Illinois 60605.
|
(24) |
Capricorn-Libra Partners, LLC is the general partner of Capricorn-Libra Investment Group, L.P., TIF Partners, LLC is the general partner of Technology Impact Fund, L.P. and TIGF Partners, LLC is the general partner of Technology Impact Growth Fund, L.P. Capricorn-Libra Partners, LLC is wholly owned by Dipender Saluja. TIF Partners, LLC is owned by Ion Yadigaroglu and Dipender Saluja. TIGF Partners, LLC is owned by Ion Yadigaroglu, Dipender Saluja and Capricorn Investment Group, LLC. The business address of each of Capricorn-Libra Investment Group, L.P., Technology Impact Fund, L.P., Technology Impact Growth Fund, L.P., Capricorn-Libra Partners, LLC, TIF Partners, LLC and TIGF Partners, LLC is 250 University Avenue Palo Alto, CA 94301.
|
(25) |
Gregory Carlin is the Manager of CLAM Partners LLC. The address of CLAM Partners LLC is 900 N. Michigan Ave., Suite 1600, Chicago, IL 60611.
|
(26) |
Scott Coulter is the managing member of Cowbird Capital GP LLC, the general partner of the investment manager to Cowbird Capital Master Fund Ltd. The address of Cowbird Capital Master Fund Ltd. is c/o Cowbird Capital LP, One World Trade Center, 84th Floor, New York, NY 10007.
|
(27) |
DSAM Partners (London) Ltd. (the “Investment Advisor”) is the investment advisor to DSAM + Master Fund and as such may be deemed to have voting and investment power over the securities held by DSAM + Master Fund. The Investment Advisor is ultimately controlled by Mr. Guy Shahar. DSAM + Master Fund and Mr. Shahar disclaim beneficial ownership of the securities listed above.
|
(28) |
DSAM Partners (London) Ltd. (the “Investment Advisor”) is the investment advisor to DSAM Alpha + Master Fund and as such may be deemed to have voting and investment power over the securities held by DSAM Alpha + Master Fund. The Investment Advisor is ultimately controlled by Mr. Guy Shahar. DSAM Alpha + Master Fund and Mr. Shahar disclaim beneficial ownership of the securities listed above.
|
(29) |
DSAM Partners (London) Ltd. (the “Investment Advisor”) is the investment advisor to DSAM
Co-Invest
Ltd and as such may be deemed to have voting and investment power over the securities held by DSAM
Co-Invest
Ltd. The Investment Advisor is ultimately controlled by Mr. Guy Shahar. DSAM
Co-Invest
Ltd and Mr. Shahar disclaim beneficial ownership of the securities listed above.
|
(30) |
Steve McDermid and Laurene Powell Jobs are authorized signatories of Emerson Collective Investments, LLC. The address of Emerson Collective Investments, LLC is P.O. Box 61239, Dept. 1173, Palo Alto, CA 94306.
|
(31) |
Charles Fitzgerald is the Managing Member of Fitzgerald Family Holdings LLC. The address of Fitzgerald Family Holdings LLC is 10 Old Jackson Avenue, Unit 24, Hastings on Hudson, NY 10706.
|
(32) |
The address of FIAM Target Date Blue Chip Growth Commingled Pool is: State Street Bank & Trust PO Box 5756, Boston, Massachusetts 02206, Attn: FLAPPER CO fbo FIAM Target Date Blue Chip Growth Commingled Pool.
|
(33) |
Carl Meyer is the CEO/CIO of Silver Rock Financial LP, the investment advisor to FMAP SOC Limited. The address of FMAP SOC Limited is c/o Silver Rock Financial LP, 12100 Wilshire Blvd., Suite 1000, Los Angeles, CA 90025.
|
(34) |
Andrew Callan and Edward Sickel are the Managers of General Advance Opportunities, LLC. The address of General Advance Opportunities, LLC is 201 Main Street, Suite 2300, Fort Worth TX 76102.
|
(35) |
Michael Germino is the managing member of Ghisallo Capital Management LLC, the Investment Manager of Ghisallo Master Fund LP. The address of Ghisallo Master Fund LP is 190 Elgin Road, George Town, Grand Cayman, Cayman Islands KY
1-9008.
|
(36) |
Hawkeye Capital Management LLC (“HCMLLC”), the Investment Advisor of Hawkeye Capital Master (“HCM”), has voting and investment control of the shares held by HCM. Richard Rubin is the managing member of HCMLLC and may be deemed the beneficial owner of the shares of Class A common stock held by HCM.
|
(37) |
Shares beneficially owned and offered hereby include 45,990 shares of Class A common stock held by Nineteen77 Global Multi-Strategy Alpha Master Limited, 45,990 shares of Class A common stock held by Nineteen77 Global Merger Arbitrage Master Limited, 7,680 shares of Class A common stock held by Nineteen77 Global Merger Arbitrage Opportunity Fund and 340 shares of Class A common stock held by IAM Investments ICAV — O’Connor Event Driven UCITS Fund. Kevin Russell, Chief Investment Officer, UBS O’Connor, the investment manager of the Selling Securityholders, disclaims beneficial ownership of the shares.
|
(38) |
ICS Opportunities, Ltd., an exempted company organized under the laws of the Cayman Islands (“ICS Opportunities”), beneficially owned 256,036 shares of the Company’s Common Stock (consisting of: (i) 75,000 shares of the Company’s Common Stock purchased in the PIPE, (ii) 2 of the Company’s units and (iii) 181,034 shares of the Company’s Common Stock which are issuable upon exercise of certain warrants).
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(39) |
Integrated Core Strategies (US) LLC, a Delaware limited liability company (“Integrated Core Strategies”), beneficially owned 1,331,647 shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”) (consisting of: (i) 1,130,600 shares of the Company’s Common Stock purchased in a private placement pursuant to a subscription agreement dated February 23, 2021 (the “PIPE”), (ii) an additional 199,490 shares of the Company’s Common Stock acquired separately from the PIPE and (iii) 1,557 shares of the Company’s Common Stock which are issuable upon exercise of certain warrants).
|
(40) |
Intel Capital Corporation is a wholly-owned subsidiary of Intel Corporation. Intel Capital Corporation shares voting and investment power over its held shares with Intel Corporation. The address of Intel Capital Corporation is c/o Intel Corporation, 2200 Mission College Blvd., M/S
RN6-59,
Santa Clara, CA, 95054, Attn: Intel Capital Portfolio Manager.
|
(41) |
InterPrivate Capital LLC is the manager of IPV Opportunities III LLC. Ahmed Fattouh and Brandon Bentley are the manager and officer of InterPrivate Capital LLC, respectively. The address of IPV Opportunities III LLC is 290 6th Avenue, Unit 5H, New York, NY 10014.
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(42) |
Mr. Bevirt has voting and dispositive power over the shares held in the Joby Trust and therefore may be deemed to be the beneficial owner of such shares. The business address for The Joby Trust is 2155 Delaware Avenue, Santa Cruz, CA 95060.
|
(43) |
Zachary Frankel is the Manager of Kaneda Investments LLC. The address of Kaneda Investments LLC is 874 Walker Road, Suite C, Dover, DE 19904.
|
(44) |
Baillie Gifford & Co. has been appointed to act for and on behalf of Keystone Positive Change Investment Trust plc as its investment manager with full voting and investment power. The address of this selling stockholder is Baillie Gifford, Calton Square, 1 Greenside Row, Edinburgh EH1\3AN, Scotland, United Kingdom.
|
(45) |
Michael Linse, Simon Morrish and Bastiaan Janmaat are the managing members of Levitate Capital GP, LP, the general partner of Levitate Capital LP. The address of Levitate Capital LP 985 Damonte Ranch Parkway, Suite 240, Reno, NV 89521.
|
(46) |
DSAM Partners (London) Ltd. (the “Investment Advisor”) is the investment advisor to Linden Capital L.P. and as such may be deemed to have voting and investment power over the securities held by Linden Capital L.P.. The Investment Advisor is ultimately controlled by Mr. Guy Shahar. Linden Capital L.P. and Mr. Shahar disclaim beneficial ownership of the securities listed above.
|
(47) |
L. James Scott IIII is the Partner of LNZ Investments, LLLP. The address of LNZ Investment, LLLP is 195 Nurmi Drive, Ft. Lauderdale, FL 33301.
|
(48) |
Shares hereby offered consist of (i) 626,375 PIPE Shares, held by Lugard Road Capital Master Fund, LP (“Lugard”) beneficially owned by Luxor Capital Group, LP, the investment manager of Lugard; (ii) 6,955 PIPE Shares held by Luxor Capital Partners Long Offshore Master Fund, LP (“Luxor Long Offshore”) beneficially owned by Luxor Capital Group, LP, the investment manager of Luxor Long Offshore (iii) 20,832 PIPE Shares held by Luxor Capital Partners Long, LP (“Luxor Long”) beneficially owned by Luxor Capital Group, LP, the investment manager of Luxor Long; (iv) 399,807 PIPE Shares held by Luxor Capital Partners Offshore Master Fund, LP (“Luxor Offshore”) beneficially owned by Luxor Capital Group, LP, the investment manager of Luxor Offshore; (v) 637,433 PIPE Shares held by Luxor Capital Partners, LP (“Luxor Capital”) beneficially owned by Luxor Capital Group, LP, the investment manager of Luxor Capital; (vi) 266,721 PIPE Shares held by Luxor Wavefront, LP (“Luxor Wavefront”) beneficially owned by Luxor Capital Group, LP, the investment manager of Luxor Wavefront; and (vii) 41,877 PIPE Shares held by Luxor Gibraltar, LP — Series 1 (“Luxor Gibraltar”) beneficially owned by Luxor Capital Group, LP, the investment manager of Luxor Gibraltar. Christian Leone, in his position as Portfolio Manager at Luxor Capital Group, LP, may be deemed to have voting and investment power with respect to the securities owned by Luxor Long Offshore, Luxor Long, Luxor Offshore, Luxor Capital, Luxor Wavefront, and Luxor Gibraltar. Jonathan Green, in his position as Portfolio Manager at Luxor Capital Group, LP, may be deemed to have voting and investment power with respect to the securities held by Lugard. Mr. Leone and Mr. Green each disclaims beneficial ownership of any of the PIPE shares over which each exercises voting and investment power. The mailing address of each of the above-mentioned funds is 1114 Avenue of the Americas, 28th Fl New York, NY 10036.
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(49) |
The address of Fidelity Advisor Series I: Fidelity Advisor Growth Opportunities Fund is: Mag & Co. c/o Brown Brothers Harriman & Co. Attn: Corporate Actions /Vault, 140 Broadway, New York, NY 10005.
|
(50) |
The address of Fidelity Blue Chip Growth Commingled Pool is: Mag & Co. c/o Brown Brothers Harriman & Co., Attn: Corporate Actions /Vault, 140 Broadway, New York, NY 10005.
|
(51) |
The address of Fidelity Contrafund Commingled Pool is: Mag & Co. c/o Brown Brothers Harriman & Co. Attn: Corporate Actions /Vault, 140 Broadway, New York, NY 10005.
|
(52) |
The address of Fidelity Contrafund: Fidelity Advisor New Insights Fund — Sub A is: Mag & Co. c/o Brown Brothers Harriman & Co. Attn: Corporate Actions /Vault, 140 Broadway, New York, NY 10005.
|
(53) |
The address of Fidelity Contrafund: Fidelity Series Opportunistic Insights Fund is: Mag & Co., c/o Brown Brothers Harriman & Co., Attn: Corporate Actions /Vault, 140 Broadway, New York, NY 10005.
|
(54) |
The address of Fidelity Contrafund: Fidelity Contrafund is: Mag & Co. c/o Brown Brothers Harriman & Co. Attn: Corporate Actions /Vault, 140 Broadway, New York, NY 10005.
|
(55) |
The address of Fidelity Securities Fund: Fidelity Blue Chip Growth Fund is: Mag & Co., c/o Brown Brothers Harriman & Co., Attn: Corporate Actions /Vault, 140 Broadway, New York, NY 10005.
|
(56) |
The address of Fidelity Select Portfolios: Select Technology Portfolio is Mag & Co. c/o Brown Brothers Harriman & Co., Attn: Corporate Actions /Vault, 140 Broadway, New York, NY 10005.
|
(57) |
The address of Fidelity Select Portfolios : Select Automotive Portfolio is Mag & Co. c/o Brown Brothers Harriman & Co., Attn: Corporate Actions /Vault, 140 Broadway, New York, NY 10005.
|
(58) |
The address of Variable Insurance Products Fund II: VIP Contrafund Portfolio — Subportfolio A is: Mag & Co., c/o Brown Brothers Harriman & Co., Attn: Corporate Actions /Vault, 140 Broadway, New York, NY 10005.
|
(59) |
Carl Anderson is the Chief Investment Officer of Marcho Partners Master Fund ICAV. The address of Marcho Partners Master Fund ICAV is Berkeley Square House, London, U.K. W1J 6BE.
|
(60) |
William Snellings is managing member of Marianas Fund LLC. The address of Marianas Fund LLC is 300 E. Main St., Suite 301, Charlottesville, VA 22902.
|
(61) |
Middlefield Ventures, Inc. is a wholly-owned subsidiary of Intel Corporation. Middlefield Ventures, Inc. shares voting and investment power over its held shares with Intel Corporation. The address for Middlefield Ventures, Inc. is c/o Intel Corporation, 2200 Mission College Blvd., M/S
RN6-59,
Santa Clara, CA, 95054, Attn: Intel Capital Portfolio Manager.
|
(62) |
The securities described herein are held directly by MJP DT Holdings LLC. The manager of MJP DT Holdings LLC is Gretchen Lucas. MJP DT Holdings LLC is wholly owned by MJP 2020 Delaware Irrevocable Trust (“Trust”), the trustee of which is J.P. Morgan Trust Company of Delaware. Mark J. Pincus has the right to remove and replace the trustee of the Trust. Mr. Pincus served as
co-lead
director of RTP from July 2020 until the consummation of the Business Combination.
|
(63) |
Moore Capital Management, LP, the investment manager of MMF LT, LLC, has voting and investment control of the shares held by MMF LT, LLC. Mr. Louis M. Bacon controls the general partner of Moore Capital Management, LP and may be deemed the beneficial owner of the shares of the Company held by MMF LT, LLC. Mr. Bacon also is the indirect majority owner of MMF LT, LLC. The address of MMF LT, LLC, Moore Capital Management, LP and Mr. Bacon is 11 Times Square, New York, New York 10036.
|
(64) |
Tom Hagerty is the Trustee and Mitchell Otolski and Nick Stone are the Trustee Agents of MRS Trust. The address is c/o Tom Hagerty, Thomas Lee Partners, 100 Federal Street, Boston, MA 02110.
|
(65) |
Shares beneficially owned and offered hereby include 45,990 shares of Class A common stock held by Nineteen77 Global Multi-Strategy Alpha Master Limited, 45,990 shares of Class A common stock held by Nineteen77 Global Merger Arbitrage Master Limited, 7,680 shares of Class A common stock held by Nineteen77 Global Merger Arbitrage Opportunity Fund and 340 shares of Class A common stock held by IAM Investments ICAV — O’Connor Event Driven UCITS Fund. Kevin Russell, Chief Investment Officer, UBS O’Connor, the investment manager of the Selling Securityholders, disclaims beneficial ownership of the shares.
|
(66) |
Shares beneficially owned and offered hereby include 45,990 shares of Class A common stock held by Nineteen77 Global Multi-Strategy Alpha Master Limited, 45,990 shares of Class A common stock held by Nineteen77 Global Merger Arbitrage Master Limited, 7,680 shares of Class A common stock held by Nineteen77 Global Merger Arbitrage Opportunity Fund and 340 shares of Class A common stock held by IAM Investments ICAV – O’Connor Event Driven UCITS Fund. Kevin Russell, Chief Investment Officer, UBS O’Connor, the investment manager of the Selling Securityholders, disclaims beneficial ownership of the shares.
|
(67) |
Shares beneficially owned and offered hereby include 45,990 shares of Class A common stock held by Nineteen77 Global Multi-Strategy Alpha Master Limited, 45,990 shares of Class A common stock held by Nineteen77 Global Merger Arbitrage Master Limited, 7,680 shares of Class A common stock held by Nineteen77 Global Merger Arbitrage Opportunity Fund and 340 shares of Class A common stock held by IAM Investments ICAV – O’Connor Event Driven UCITS Fund. Kevin Russell, Chief Investment Officer, UBS O’Connor, the investment manager of the Selling Securityholders, disclaims beneficial ownership of the shares.
|
(68) |
The address of Fidelity Advisor Series I: Fidelity Advisor Balanced Fund — Information Technology Sub is: BNY Mellon, PO Box 392002, Pittsburgh, PA 15230.
|
(69) |
The address of Variable Insurance Products Fund III: VIP Balanced Portfolio- Information Technology Sub is: BNY Mellon, PO Box 392002, Pittsburgh, PA 15230.
|
(70) |
Andrew Hansen is the managing member of Prime Access Capital, LLC. The address of Prime Access Capital, LLC is 49 Geary Street, Suite 500, San Francisco, CA 94108.
|
(71) |
Adam Ramada has power to vote or dispose of the shares controlled by PureLake Joby LLC. The address of PureLake Joby LLC is 1000 Biscayne Blvd, Unit 2102, Miami, FL 33132.
|
(72) |
Shares hereby offered consist of 2,500,000 shares of Joby Aviation common stock held directly by Reinvent Capital Fund LP. Reinvent Capital Fund GP LLC is the general partner of Reinvent Capital Fund LP. Due to its relationship with Reinvent Capital Fund LP, Reinvent Capital Fund GP LLC may be deemed to beneficially own the shares of Joby Aviation common stock directly held by Reinvent Capital Fund LP. Mark Pincus and Michael Thompson are the managing members of Reinvent Capital Fund GP LLC and may therefore be deemed to beneficially own the shares of Joby Aviation common stock held directly by Reinvent Capital Fund LP. Mr. Pincus and Mr. Thompson each disclaim beneficial ownership of the shares of Joby Aviation common stock held directly by Reinvent Capital Fund LP except to the extent of their pecuniary interest therein. The business address of Reinvent Capital Fund LP is c/o Reinvent 215 Park Avenue S, 11th Floor, New York, New York 10003.
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(73) |
Frank Huang is the Manager of Reprogrammed Interchange LLC. The address of Reprogrammed Interchange LLC is 1415 Commercial Avenue #105, Anacortes, WA 98221. Mr. Hoffman, a member of our board of directors, may be deemed the beneficial owner of the shares of common stock held by Reprogrammed Interchange LLC. Mr. Hoffman served as
co-lead
director of RTP from September 2020 through the consummation of the Business Combination.
|
(74) |
Mr. Sciarra has voting, investment and dispositive power over the shares held in the Sciarra Foundation, and therefore may be deemed to be the beneficial owner of such shares. The address for U.S. Trust Company of Delaware, as agent for Sciarra Foundation, is 2951 Centerville Road, Suite 200, Wilmington, DE 19808.
|
(75) |
Mr. Sciarra has voting, investment and dispositive power over the shares held in the Sciarra Management Trust and therefore may be deemed to be the beneficial owner of such shares. The address for U.S. Trust Company of Delaware, as agent for Sciarra Management Trust, is 2951 Centerville Road, Suite 200, Wilmington, DE 19808.
|
(76) |
Baillie Gifford & Co. has been appointed to act for and on behalf of Scottish Mortgage Investment Trust plc as its investment manager with full voting and investment power. The address of this selling stockholder is Baillie Gifford, Calton Square, 1 Greenside Row, Edinburgh EH1 \3AN, Scotland, United Kingdom.
|
(77) |
William Zeboris and Stephen Berman are the Trustees of the Seth G. Berman 2012 Irrevocable Trust. The address is c/o Citrin Cooperman, 709 Westchester Avenue, White Plains, NY 10604.
|
(78) |
Jacob Goldfield is the Managing Member of Sharing LLC Joby PS. The address of Sharing LLC Joby PS is 33 Union Square West #11, New York, NY 10003.
|
(79) |
Carl Meyer is the CEO/CIO of Silver Rock Financial LP, investment advisor to Silver Rock Opportunistic Credit Fund LP. The address of Silver Rock Opportunistic Credit Fund LP is c/o Silver Rock Financial LP, 12100 Wilshire Blvd., Suite 1000, Los Angeles, CA 90025.
|
(80) |
Carl Meyer is the CEO/CIO of Silver Rock Financial LP, investment advisor to Silver Rock Opportunities Fund I LP. The address of Silver Rock Opportunities Fund I LP is c/o Silver Rock Financial LP, 12100 Wilshire Blvd., Suite 1000, Los Angeles, CA 90025.
|
(81) |
Carl Meyer is the CEO/CIO of Silver Rock Financial LP, investment advisor to SRF Plan Assets Opportunistic Credit Fund. The address of SRF Plan Assets Opportunistic Credit Fund LP is c/o Silver Rock Financial LP, 12100 Wilshire Blvd., Suite 1000, Los Angeles, CA 90025.
|
(82) |
Scott Coulter is the managing member of Cowbird Capital GP LLC, investment manager of Star V Partners LLC. The address of Star V Partners LLC is c/o Cowbird Capital LP, One World Trade Center, 84th Floor, New York, NY 10007.
|
(83) |
Aaron Cowen as control person of Suvretta Capital Management, LLC, the investment manager of Suvretta Long Master Fund, Ltd. The address of Survetta Long Master Fund, Ltd. Is 540 Madison Avenue, 7th Floor, New York, NY 10022.
|
(84) |
Aaron Cowen as control person of Suvretta Capital Management, LLC, the investment manager of Suvretta Master Fund, Ltd. The address of Survetta Master Fund, Ltd. Is 540 Madison Avenue, 7th Floor, New York, NY 10022.
|
(85) |
Nicholas J. Pritzker is the Chairman of Tao Capital Management LP, the manager of Tao Invest VI LLC (the “Manager”). Joseph B. Pritzker is the Vice Chairman of the Manager. Isaac E. Pritzker is the Director of Venture Equities of the Manager. The address of Tao Invest VI LLC is c/o Tao Capital Partners, 1 Letterman Drive, Suite
C4-420,
San Francisco, CA 94129.
|
(86) |
Capricorn-Libra Partners, LLC is the general partner of Capricorn-Libra Investment Group, L.P., TIF Partners, LLC is the general partner of Technology Impact Fund, L.P. and TIGF Partners, LLC is the general partner of Technology Impact Growth Fund, L.P. Capricorn-Libra Partners, LLC is wholly owned by Dipender Saluja. TIF Partners, LLC is owned by Ion Yadigaroglu and Dipender Saluja. TIGF Partners, LLC is owned by Ion Yadigaroglu, Dipender Saluja and Capricorn Investment Group, LLC. The business address of each of Capricorn-Libra Investment Group, L.P., Technology Impact Fund, L.P., Technology Impact Growth Fund, L.P., Capricorn-Libra Partners, LLC, TIF Partners, LLC and TIGF Partners, LLC is 250 University Avenue Palo Alto, CA 94301.
|
(87) |
Capricorn-Libra Partners, LLC is the general partner of Capricorn-Libra Investment Group, L.P., TIF Partners, LLC is the general partner of Technology Impact Fund, L.P. and TIGF Partners, LLC is the general partner of Technology Impact Growth Fund, L.P. Capricorn-Libra Partners, LLC is wholly owned by Dipender Saluja. TIF Partners, LLC is owned by Ion Yadigaroglu and Dipender Saluja. TIGF Partners, LLC is owned by Ion Yadigaroglu, Dipender Saluja and Capricorn Investment Group, LLC. The business address of each of Capricorn-Libra Investment Group, L.P., Technology Impact Fund, L.P., Technology Impact Growth Fund, L.P., Capricorn-Libra Partners, LLC, TIF Partners, LLC and TIGF Partners, LLC is 250 University Avenue Palo Alto, CA 94301.
|
(88) |
Alison Pincus has voting and dispositive power over the Alison Pincus Living Trust. The address of the Alison Pincus Living Trust is 4104 24th Street #1004, San Francisco, CA 94114.
|
(89) |
David B. Heller is the Trustee of The Hermine and David Heller Foundation. The address of The Hermine and David Heller Foundation is 25 Bond Street PHE, New York, NY 10012.
|
(90) |
The securities of the Company set forth herein are directly beneficially owned by Third Point Loan LLC (“TP Loan”). TP Loan is an affiliate of Third Point LLC (“Third Point”) and holds the securities listed herein as nominee for funds managed and/or advised by Third Point and not in its individual capacity. Daniel S. Loeb is the Chief Executive Officer of Third Point. By reason of the provisions
|
of Rule
13d-3
under the Securities Exchange Act of 1934, as amended, Third Point and Mr. Loeb may be deemed to be the beneficial owners of the securities beneficially owned by TP Loan. Third Point and Mr. Loeb hereby disclaim beneficial ownership of all such securities, except to the extent of any indirect pecuniary interest therein. The business address for Mr. Loeb and the entities identified in this footnote is c/o Third Point LLC, 55 Hudson Yards, 51st Floor, New York, NY 10001.
|
(91) |
The address of Fidelity NorthStar Fund — Sub D is: State Street Bank & Trust, PO Box 5756, Boston, Massachusetts 02206, Attn: THISBE co fbo Fidelity NorthStar Fund — Sub D.
|
(92) |
The address of Fidelity U.S. Growth Opportunities Investment Trust is: State Street Bank & Trust, PO Box 5756, Boston, Massachusetts 02206, Attn: THISBE co fbo Fidelity U.S. Growth Opportunities Investment Trust.
|
(93) |
The address of Fidelity Insights Investment Trust is: State Street Bank & Trust, PO Box 5756, Boston, Massachusetts 02206, Attn: Thisbe & Co Fidelity Insights Investment Trust.
|
(94) |
The address of Fidelity Blue Chip Growth Institutional Trust is: State Street Bank & Trust, PO Box 5756, Boston, Massachusetts 02206.
|
(95) |
Toyota Motor Corporation has dispositive control over the shares held by Toyota A.I. Ventures Fund I, L.P. and may be deemed to beneficially own such shares. The business address for Toyota Motor Corporation is
4-7-1
450-8171,
Japan.
|
(96) |
Toyota Motor Corporation has dispositive control over the shares held by Toyota A.I. Ventures Parallel Fund
I-A,
L.P. and may be deemed to beneficially own such shares. The business address for Toyota Motor Corporation is
4-7-1
450-8171,
Japan.
|
(97) |
The business address for Toyota Motor Corporation is
4-7-1
450-8171,
Japan.
|
(98) |
Upon closing, TPG Public Equity Partners, LP will hold 75,245 Shares; TPG Public Equity Partners Master Fund, L.P., will hold 851,255 Shares; and TPG Public Equity Partners Long Opportunities Master Fund, L.P. (together with TPG Public Equity Partners, LP and TPG Public Equity Partners Master Fund, L.P., the “TPEP Funds”) will hold 573,500 Shares. The general partner of each of the TPG Funds is TPG PEP GenPar Governance, L.P., a Delaware limited partnership, whose general partner is TPG PEP GenPar Advisors, L.P., a Delaware limited partnership, whose general partner is TPG Holdings III, L.P., a Delaware limited partnership, whose general partner is TPG Holdings
III-A,
L.P., a Cayman limited partnership, whose general partner is TPG Holdings
III-A,
Inc., a Cayman Islands exempted company, whose sole shareholder is TPG Group Holdings (SBS), L.P., a Delaware limited partnership, whose general partner is TPG Group Holdings (SBS) Advisors, LLC, a Delaware limited liability company, whose sole member is TPG Group Holdings (SBS) Advisors, Inc., a Delaware corporation. Bonderman and James G. Coulter are the sole shareholders of TPG Group Holdings (SBS) Advisors, Inc. and may therefore be deemed to beneficially own the securities held by the TPG Funds. Messrs. Bonderman and Coulter disclaim beneficial ownership of the securities held by the TPG Funds except to the extent of their pecuniary interest therein.
|
(99) |
Solomon Cohen is the Portfolio Manager of Cohen & Company Financial Management, LLC, the Investment Manager of Vellar Opportunities Fund Master, Ltd. The address of Vellar Opportunities Fund Master, Ltd. is c/o Cohen & Company Financial Management, LLC, 3 Columbus Circle, 24th Floor, New York, NY 10019.
|
(100) |
Vy GP Fund II Limited is the general partner of Vy Fund II, LP. Steven Sokohl and Paul Muspratt are directors of Vy GP Fund II Limited and disclaim beneficial ownership in the shares listed above. The address of Vy Fund II, LP is c/o Trident Trust Company (Cayman) Limited, One Capital Place, P.O. Box 847, George Town, Grand Cayman,
KY1-1103,
Cayman Islands.
|
(101) |
The address of Fidelity Advisor Series I: Fidelity Advisor Series Growth Opportunities Fund is: State Street Bank & Trust, PO Box 5756, Boston, Massachusetts 02206, Attn: WARMWIND + CO fbo Fidelity Advisor Series I: Fidelity Advisor Series Growth Opportunities Fund.
|
(102) |
The address of Fidelity Securities Fund: Fidelity Series Blue Chip Growth Fund is: State Street Bank & Trust, PO Box 5756, Boston, Massachusetts 02206, Attn: WAVECHART + CO fbo Fidelity Securities Fund: Fidelity Series Blue Chip Growth Fund.
|
(103) |
Weiss Ventures I LLC is a Delaware limited liability company wholly-owned by Brookdale Aggregate Holdings LLC (“BAH”), a private investment fund. BAH is a subsidiary owned by Brookdale International Partners, L.P. (“BIP”) and Brookdale Global Opportunity Fund (“BGO”). BIP and BGO are both private investment funds. WeissAsset Management LP (“WAM”), a U.S.-based,
SEC-registered
investment adviser, is the investment manager of BIP and BGO. BIP GP LLC (“BIP GP”) is the general partner of BIP. WAM is the manager of Weiss Ventures I LLC and BAH. WAM GP is the general partner of WAM and the manager of BIP GP. Andrew Weiss is the managing member of WAM GP. Each of Andrew Weiss, BIP GP, WAM and WAM GP disclaim beneficial ownership of such securities except to the extent of their respective pecuniary interests therein.
|
(104) |
Woodline Partners LP serves as the investment manager of Woodline Master Fund LP and may be deemed to be the beneficial owner of the shares reported on this line. Woodline Master Fund LP disclaims any beneficial ownership of these shares. The address of the Selling Stockholder is 4 Embarcadero Center, Suite 3450, San Francisco, CA 94111.
|
(105) |
Erika Aaronson is the Trustee of the Woody Allen 2005 Revocable Trust. The address is 23611 Malibu Colony Road #58A, Malibu, CA 90265.
|
(106) |
Mark Pincus is the Trustee of 4D Revocable Trust, the sole member of Workplay Ventures LLC. The address of Workplay Ventures LLC is 3450 Sacramento Street, #720, San Francisco, CA 94118. Mr. Pincus served as
co-lead
director of RTP from July 2020 until the consummation of the Business Combination.
|
(107) |
Consists of 17,130,000 shares of Joby Aviation common stock and private placement warrants of Joby Aviation exercisable for 11,533,333 shares of Joby Aviation common stock. Mark Pincus, Reid Hoffman, and each of RTP’s former officers (or entities related thereto), among others, is a member of the Sponsor. Messrs. Hoffman and Pincus may be deemed to beneficially own shares held by the Sponsor by virtue of their shared control over the Sponsor. Other than Messrs. Hoffman and Pincus, no member of the Sponsor exercises voting or dispositive control over any of the shares held by the Sponsor. Each of Messrs. Hoffman and Pincus disclaims beneficial ownership of the securities held by the Sponsor, except to the extent of his actual pecuniary interest therein. The address of Reinvent Sponsor LLC is c/o Reinvent 215 Park Avenue, Floor 11, New York, NY 10003.
|
(108) |
Mr. Thompson served as Chief Executive Officer, Chief Financial Officer and a director of RTP from August 2020 until the consummation of the Business Combination. The business address of Mr. Thompson is c/o Reinvent 215 Park Avenue S, 11th Floor, New York, New York 10003.
|
(109) |
Mr. Cohen served as Secretary of RTP from August 2020 until the consummation of the Business Combination. The business address of Mr. Cohen is c/o Reinvent 215 Park Avenue S, 11th Floor, New York, New York 10003.
|
(110) |
Ms. Coutu served as a director of RTP from September 2020 until the consummation of the Business Combination. The business address of Ms. Coutu is c/o Reinvent 215 Park Avenue S, 11th Floor, New York, New York 10003.
|
(111) |
Mr. Hudson served as a director of RTP from September 2020 until the consummation of the Business Combination. The business address of Mr. Hudson is c/o Reinvent 215 Park Avenue S, 11th Floor, New York, New York 10003.
|
(112) |
Ms. Salen served as a director of RTP from September 2020 until the consummation of the Business Combination. The business address of Ms. Salen is c/o Reinvent 215 Park Avenue S, 11th Floor, New York, New York 10003.
|
(113) |
Dr. Li served as a director of RTP from September 2020 until the consummation of the Business Combination. The business address of Dr. Li is c/o Reinvent 215 Park Avenue S, 11th Floor, New York, New York 10003.
|
(114) |
The registered holders of the referenced shares to be registered are the following funds and accounts under management by subsidiaries of BlackRock, Inc.: BlackRock Global Allocation Fund, Inc.; BlackRock Global Funds - Global Allocation Fund; BlackRock Global Allocation V.I. Fund of BlackRock Variable Series Funds, Inc.; BlackRock Global Allocation Portfolio of BlackRock Series Fund, Inc.; BlackRock Global Allocation Collective Fund; BlackRock Global Funds - Global Dynamic Equity Fund; BlackRock Capital Allocation Trust; BlackRock Strategic Income Opportunities Portfolio of BlackRock Funds V; Strategic Income Opportunities Bond Fund; BGF ESG Fixed Income Global Opportunities Fund; BGF Fixed Income Global Opportunities Fund; Master Total Return Portfolio of Master Bond LLC; BlackRock Total Return Bond Fund; BlackRock Global Long/Short Credit Fund of BlackRock Funds IV; BlackRock Technology Opportunities Fund, a series of BlackRock Funds; and BlackRock Global Funds - World Technology Fund. BlackRock, Inc. is the ultimate parent holding company of such subsidiaries. On behalf of such subsidiaries, the applicable portfolio managers, as managing directors (or in other capacities) of such entities, and/or the applicable investment committee members of such funds and accounts, have voting and investment power over the shares held by the funds and accounts which are the registered holders of the referenced shares. Such portfolio managers and/or investment committee members expressly disclaim beneficial ownership of all shares held by such funds and accounts. The address of such funds and accounts, such subsidiaries and such portfolio managers and/or investment committee members is 55 East 52nd Street, New York, NY 10055. Shares shown include only the securities being registered for resale and may not incorporate all shares deemed to be beneficially held by the registered holders or BlackRock, Inc.
|
• |
we have been or are to be a participant;
|
• |
the amount involved exceeds or will exceed $120,000; and
|
• |
any of our directors, executive officers or beneficial holders of more than 5% of our capital stock, or any immediate family member of, or person sharing the household with, any of these individuals (other than tenants or employees), had or will have a direct or indirect material interest.
|
Name
|
2018 Notes
principal and interest |
Shares of Series C
convertible preferred stock |
||||||
Entities affiliated with Toyota Motor Corporation
(1)
|
$ | 47,811,628.11 | 3,085,385 | |||||
Entities affiliated with Capricorn Investment Group
(2)
|
$ | 10,537,534.25 | 680,008 | |||||
Entities affiliated with Intel Corporation
(3)
|
$ | 31,795,068.49 | 2,051,803 | |||||
|
|
|
|
|||||
Total
|
$
|
90,144,230.85
|
|
|
5,817,196
|
|
||
|
|
|
|
(1) |
Consists of (i) $46,632,767.12 in principal plus accrued interest held by Toyota Motor Corporation, (ii) $1,096,340.81 in principal plus accrued interest held by Toyota A.I. Ventures Fund I, L.P. and (iii) $82,520.18 in principal plus accrued interest held by Toyota A.I. Ventures Parallel Fund
I-A,
L.P.
|
(2) |
Consists of (i) $5,268,767.12 in principal plus accrued interest held by Technology Impact Fund, L.P. and (ii) 5,268,767.12 in principal plus accrued interest held by Technology Impact Growth Fund LP.
|
(3) |
Consists of $31,795,068.49 in principal plus accrued interest held by Middlefield Ventures, Inc.
|
Name
|
Shares of Series C
Preferred Stock |
Total Purchase
Price
|
||||||
Entities affiliated with Toyota Motor Corporation
(1)
|
18,068,992 | $ | 349,999,988.84 | |||||
|
|
|
|
|||||
Total
|
|
18,068,992
|
|
$
|
349,999,988.84
|
|
||
|
|
|
|
(1) |
Consists of (i) 18,068,992 shares of Joby’s Series C preferred stock held by Toyota Motor Corporation
|
• |
any person who is, or at any time during the applicable period was, one of Joby Aviation’s executive officers or directors;
|
• |
any person who is known by the
post-combination
company to be the beneficial owner of more than 5% of Joby Aviation’s voting stock;
|
• |
any immediate family member of any of the foregoing persons, which means any child, stepchild, parent, stepparent, spouse, sibling,
mother-in-law,
father-in-law,
son-in-law,
daughter-in-law,
brother-in-law
sister-in-law
|
• |
any firm, corporation or other entity in which any of the foregoing persons is a partner or principal, or in a similar position, or in which such person has a 10% or greater beneficial ownership interest.
|
• |
in whole and not in part;
|
• |
at a price of $0.01 per warrant;
|
• |
upon not less than 30 days’ written notice of redemption to each warrant holder; and
|
• |
if and only if, the last reported sale price of the shares of common stock for any 20 trading days within a
30-trading
day period ending on the third trading day prior to the date on which we send the notice of redemption to the warrant holders (which we refer to as the “Reference Value”) equals or exceeds $18.00 per share (as adjusted for share splits, share dividends, rights issuances, subdivisions, reorganizations, recapitalizations and the like)
|
• |
in whole and not in part;
|
• |
at $0.10 per warrant upon a minimum of 30 days’ prior written notice of redemption provided that holders will be able to exercise their warrants on a cashless basis prior to redemption and receive that number of shares determined by reference to the table below, based on the redemption date and the “fair market value” (as defined below) of our shares of common stock except as otherwise described below;
|
• |
if, and only if, the Reference Value (as defined above under “Redemption of warrants when the price per share of common stock equals or exceeds $18.00”) equals or exceeds $10.00 per share (as adjusted for share splits, share dividends, rights issuances, subdivisions, reorganizations, recapitalizations and the like); and
|
• |
if the Reference Value is less than $18.00 per share (as adjusted for share splits, share dividends, rights issuances, subdivisions, reorganizations, recapitalizations and the like), the private placement warrants must also be concurrently called for redemption on the same terms as the outstanding public warrants, as described above.
|
Redemption Date
|
Fair Market Value of Common Stock
|
|||||||||||||||||||||||||||||||||||
(period to expiration of warrants)
|
>10.00
|
11.00
|
12.00
|
13.00
|
14.00
|
15.00
|
16.00
|
17.00
|
>18.00
|
|||||||||||||||||||||||||||
60 months
|
0.261 | 0.281 | 0.297 | 0.311 | 0.324 | 0.337 | 0.348 | 0.358 | 0.361 | |||||||||||||||||||||||||||
57 months
|
0.257 | 0.277 | 0.294 | 0.310 | 0.324 | 0.337 | 0.348 | 0.358 | 0.361 | |||||||||||||||||||||||||||
54 months
|
0.252 | 0.272 | 0.291 | 0.307 | 0.322 | 0.335 | 0.347 | 0.357 | 0.361 | |||||||||||||||||||||||||||
51 months
|
0.246 | 0.268 | 0.287 | 0.304 | 0.320 | 0.333 | 0.346 | 0.357 | 0.361 | |||||||||||||||||||||||||||
48 months
|
0.241 | 0.263 | 0.283 | 0.301 | 0.317 | 0.332 | 0.344 | 0.356 | 0.361 | |||||||||||||||||||||||||||
45 months
|
0.235 | 0.258 | 0.279 | 0.298 | 0.315 | 0.330 | 0.343 | 0.356 | 0.361 | |||||||||||||||||||||||||||
42 months
|
0.228 | 0.252 | 0.274 | 0.294 | 0.312 | 0.328 | 0.342 | 0.355 | 0.361 | |||||||||||||||||||||||||||
39 months
|
0.221 | 0.246 | 0.269 | 0.290 | 0.309 | 0.325 | 0.340 | 0.354 | 0.361 | |||||||||||||||||||||||||||
36 months
|
0.213 | 0.239 | 0.263 | 0.285 | 0.305 | 0.323 | 0.339 | 0.353 | 0.361 | |||||||||||||||||||||||||||
33 months
|
0.205 | 0.232 | 0.257 | 0.280 | 0.301 | 0.320 | 0.337 | 0.352 | 0.361 | |||||||||||||||||||||||||||
30 months
|
0.196 | 0.224 | 0.250 | 0.274 | 0.297 | 0.316 | 0.335 | 0.351 | 0.361 | |||||||||||||||||||||||||||
27 months
|
0.185 | 0.214 | 0.242 | 0.268 | 0.291 | 0.313 | 0.332 | 0.350 | 0.361 | |||||||||||||||||||||||||||
24 months
|
0.173 | 0.204 | 0.233 | 0.260 | 0.285 | 0.308 | 0.329 | 0.348 | 0.361 | |||||||||||||||||||||||||||
21 months
|
0.161 | 0.193 | 0.223 | 0.252 | 0.279 | 0.304 | 0.326 | 0.347 | 0.361 | |||||||||||||||||||||||||||
18 months
|
0.146 | 0.179 | 0.211 | 0.242 | 0.271 | 0.298 | 0.322 | 0.345 | 0.361 | |||||||||||||||||||||||||||
15 months
|
0.130 | 0.164 | 0.197 | 0.230 | 0.262 | 0.291 | 0.317 | 0.342 | 0.361 | |||||||||||||||||||||||||||
12 months
|
0.111 | 0.146 | 0.181 | 0.216 | 0.250 | 0.282 | 0.312 | 0.339 | 0.361 | |||||||||||||||||||||||||||
9 months
|
0.090 | 0.125 | 0.162 | 0.199 | 0.237 | 0.272 | 0.305 | 0.336 | 0.361 | |||||||||||||||||||||||||||
6 months
|
0.065 | 0.099 | 0.137 | 0.178 | 0.219 | 0.259 | 0.296 | 0.331 | 0.361 | |||||||||||||||||||||||||||
3 months
|
0.034 | 0.065 | 0.104 | 0.150 | 0.197 | 0.243 | 0.286 | 0.326 | 0.361 | |||||||||||||||||||||||||||
0 months
|
— | — | 0.042 | 0.115 | 0.179 | 0.233 | 0.281 | 0.323 | 0.361 |
• |
1% of the total number of our common stock then outstanding; or
|
• |
the average weekly reported trading volume of our common stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale.
|
• |
the issuer of the securities that was formerly a shell company has ceased to be a shell company;
|
• |
the issuer of the securities is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act;
|
• |
the issuer of the securities has filed all Exchange Act reports and material required to be filed, as applicable, during the preceding 12 months (or such shorter period that the issuer was required to file such reports and materials), other than Form
8-K
reports; and
|
• |
at least one year has elapsed from the time that the issuer filed current Form 10 type information with the SEC reflecting its status as an entity that is not a shell company.
|
• |
ordinary brokerage transactions and transactions in which the
broker-dealer
solicits purchasers;
|
• |
one or more underwritten offerings;
|
• |
block trades in which the
broker-dealer
will attempt to sell the shares of common stock or warrants as agent, but may position and resell a portion of the block as principal to facilitate the transaction;
|
• |
purchases by a
broker-dealer
as principal and resale by the
broker-dealer
for its accounts;
|
• |
an exchange distribution in accordance with the rules of the applicable exchange;
|
• |
privately negotiated transactions;
|
• |
distributions to their members, partners or shareholders;
|
• |
short sales effected after the date of the registration statement of which this prospectus is a part is declared effective by the SEC;
|
• |
through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
• |
in market transactions, including transactions on a national securities exchange or quotations service or
over-the-counter
|
• |
directly to one or more purchasers;
|
• |
through agents;
|
• |
broker-dealers
may agree with the Selling Shareholders to sell a specified number of such shares of common stock or warrants at a stipulated price per share or warrant; and
|
• |
a combination of any such methods of sale.
|
Page | ||||
F-2 | ||||
F-3 | ||||
F-4 | ||||
F-5 | ||||
F-6 | ||||
F-7 |
Page | ||||
F-29 | ||||
F-30 | ||||
F-31 | ||||
F-32 | ||||
F-33 |
Page | ||||
F-48 | ||||
F-49 | ||||
F-50 | ||||
F-51 | ||||
F-52 | ||||
F-53 | ||||
F-54 |
Page | ||||
F-82 | ||||
F-83 | ||||
F-84 | ||||
F-85 | ||||
F-86 | ||||
F-87 |
Assets:
|
||||
Current assets:
|
||||
Cash
|
$ | 1,694,679 | ||
Prepaid expenses
|
507,465 | |||
|
|
|||
Total current assets
|
2,202,144 | |||
Cash and investments held in Trust Account
|
690,171,366 | |||
|
|
|||
Total Assets
|
$
|
692,373,510
|
|
|
|
|
|||
Liabilities and Shareholders’ Equity:
|
||||
Current liabilities:
|
||||
Accounts payable
|
$ | 15,775 | ||
Accrued expenses
|
361,100 | |||
Due to related party
|
44,697 | |||
|
|
|||
Total current liabilities
|
421,572 | |||
Deferred legal fees
|
239,161 | |||
Deferred underwriting commissions
|
24,150,000 | |||
|
|
|||
Derivative warrant liabilities
|
99,938,040 | |||
|
|
|||
Total liabilities
|
124,748,773 | |||
Commitments and Contingencies
|
||||
Class A ordinary shares; 56,262,473 shares subject to possible redemption at $10.00 per share
|
562,624,730 | |||
Shareholders’ Equity:
|
||||
Preference shares, $0.0001 par value; 5,000,000 shares authorized; none issued and outstanding
|
— | |||
Class A ordinary shares, $0.0001 par value; 500,000,000 shares authorized; 12,737,527 shares issued and outstanding (excluding 56,262,473 shares subject to possible redemption)
|
1,274 | |||
Class B ordinary shares, $0.0001 par value; 50,000,000 shares authorized; 17,250,000 shares issued and outstanding
|
1,725 | |||
Additional
paid-in
capital
|
68,899,593 | |||
Accumulated deficit
|
(63,902,585 | ) | ||
|
|
|||
Total shareholders’ equity
|
5,000,007 | |||
|
|
|||
Total Liabilities and Shareholders’ Equity
|
$
|
692,373,510
|
|
|
|
|
General and administrative expenses
|
$ | 1,104,601 | ||
|
|
|||
Loss from operations
|
(1,104,601 | ) | ||
Other income (expense)
|
||||
Unrealized gain on investments held in Trust Account
|
171,366 | |||
Financing costs – derivative warrant liabilities
|
(1,289,200 | ) | ||
Change in fair value of derivative warrant liabilities
|
(61,680,150 | ) | ||
Total other income (expense)
|
(62,797,984 | ) | ||
|
|
|||
Net loss
|
$ | (63,902,585 | ) | |
|
|
|||
Basic and diluted weighted average shares outstanding of Class A ordinary shares
|
69,000,000 | |||
|
|
|||
Basic and diluted net income per ordinary share, Class A
|
$ | — | ||
|
|
|||
Basic and diluted weighted average shares outstanding of Class B ordinary shares
|
17,250,000 | |||
|
|
|||
Basic and diluted net income per ordinary share, Class B
|
$ | (3.70 | ) | |
|
|
Ordinary Shares
|
Additional
Paid-in
Capital
|
Accumulated
Deficit
|
Total
Shareholders’
Equity
|
|||||||||||||||||||||||||
Class A
|
Class B
|
|||||||||||||||||||||||||||
Shares
|
Amount
|
Shares
|
Amount
|
|||||||||||||||||||||||||
Balance - July 3, 2020 (inception)
|
|
—
|
|
$
|
—
|
|
|
—
|
|
$
|
—
|
|
$
|
—
|
|
$
|
—
|
|
$
|
—
|
|
|||||||
Issuance of Class B ordinary shares to Sponsor
|
|
—
|
|
|
—
|
|
|
17,250,000
|
|
|
1,725
|
|
|
23,275
|
|
|
—
|
|
25,000 | |||||||||
Sale of units in initial public offering, less fair value of public warrants
|
69,000,000 | 6,900 | — | — | 667,418,260 | — | 667,425,160 | |||||||||||||||||||||
Offering costs
|
— | — | — | — | (37,539,788 | ) | — | (37,539,788 | ) | |||||||||||||||||||
Excess of cash received over fair value of private placement warrants
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,616,950
|
|
|
—
|
|
1,616,950 | |||||||||
Shares subject to possible redemption
|
(56,262,473 | ) | (5,626 | ) | — | — | (562,619,104 | ) | — | (562,624,730 | ) | |||||||||||||||||
Net loss
|
— | — | — | — | — | (63,902,585 | ) | (63,902,585 | ) | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Balance - December 31, 2020
|
|
12,737,527
|
|
$
|
1,274
|
|
|
17,250,000
|
|
$
|
1,725
|
|
$
|
68,899,593
|
|
$
|
(63,902,585
|
)
|
$
|
5,000,007
|
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flows from Operating Activities:
|
||||
Net loss
|
$ | (63,902,585 | ) | |
Adjustments to reconcile net loss to net cash used in operating activities:
|
||||
General and administrative expenses paid by related party in exchange for issuance of Class B ordinary shares
|
25,000 | |||
Unrealized gain on investments held in Trust Account
|
(171,366 | ) | ||
Change in fair value of derivative warrant liabilities
|
61,680,150 | |||
Financing costs – derivative warrant liabilities
|
1,289,200 | |||
Changes in operating assets and liabilities:
|
||||
Prepaid expenses
|
(507,465 | ) | ||
Accounts payable
|
15,775 | |||
Accrued expenses
|
361,100 | |||
Due to related party
|
44,697 | |||
|
|
|||
Net cash used in operating activities
|
(1,165,494 | ) | ||
|
|
|||
Cash Flows from Investing Activities:
|
||||
Cash deposited in Trust Account
|
(690,000,000 | ) | ||
|
|
|||
Net cash used in investing activities
|
(690,000,000 | ) | ||
|
|
|||
Cash Flows from Financing Activities:
|
||||
Repayment of note payable to related party
|
(193,562 | ) | ||
Proceeds received from initial public offering, gross
|
690,000,000 | |||
Proceeds received from private placement
|
17,300,000 | |||
Offering costs paid
|
(14,246,265 | ) | ||
|
|
|||
Net cash provided by financing activities
|
692,860,173 | |||
|
|
|||
Net increase in cash
|
1,694,679 | |||
Cash - beginning of the period
|
— | |||
|
|
|||
Cash - end of the period
|
$
|
1,694,679
|
|
|
|
|
|||
Supplemental disclosure of noncash activities:
|
||||
Offering costs paid through note payable – related party
|
$ | 193,562 | ||
Deferred legal fees
|
$ | 239,161 | ||
Deferred underwriting commissions in connection with the initial public offering
|
$ | 24,150,000 | ||
Initial value of common stock subject to possible redemption
|
$ | 625,164,780 | ||
Change in value of common stock subject to possible redemption
|
$ | (62,540,050 | ) |
As of December 31, 2020
|
||||||||||||
As Previously
Reported
|
Restatement
Adjustment
|
As Restated
|
||||||||||
Balance Sheet
|
||||||||||||
Total assets
|
$ | 692,373,510 | $ | — | $ | 692,373,510 | ||||||
|
|
|
|
|
|
|||||||
Liabilities and stockholders’ equity
|
||||||||||||
Total current liabilities
|
$ | 421,572 | $ | — | $ | 421,572 | ||||||
Deferred legal fees
|
239,161 | — | 239,161 | |||||||||
Deferred underwriting commissions
|
24,150,000 | 24,150,000 | ||||||||||
Derivative warrant liabilities
|
— | 99,938,040 | 99,938,040 | |||||||||
|
|
|
|
|
|
|||||||
Total liabilities
|
24,810,733 | 99,938,040 | 124,748,773 | |||||||||
Class A common stock, $0.0001 par value; shares subject to possible redemption
|
662,562,770 | (99,938,040 | ) | 562,624,730 | ||||||||
Stockholders’ equity
|
||||||||||||
Preferred stock- $0.0001 par value
|
— | — | — | |||||||||
Class A common stock - $0.0001 par value
|
274 | 1,000 | 1,274 | |||||||||
Class B common stock - $0.0001 par value
|
1,725 | — | 1,725 | |||||||||
Additional paid-in-capital
|
5,931,243 | 62,968,350 | 68,899,593 | |||||||||
Accumulated deficit
|
(933,235 | ) | (62,969,350 | ) | (63,902,585 | ) | ||||||
|
|
|
|
|
|
|||||||
Total stockholders’ equity
|
5,000,007 | — | 5,000,007 | |||||||||
|
|
|
|
|
|
|||||||
Total liabilities and stockholders’ equity
|
$ | 692,373,510 | $ | — | $ | 692,373,510 | ||||||
|
|
|
|
|
|
Period From July 3, 2020 (Inception) Through
December 31, 2020 |
||||||||||||
As Previously
Reported
|
Restatement
Adjustment
|
As Restated
|
||||||||||
Statement of Operations
|
||||||||||||
Loss from operations
|
$ | (1,104,601 | ) | $ | — | $ | (1,104,601 | ) | ||||
Other (expense) income:
|
||||||||||||
Change in fair value of warrant liabilities
|
— | (61,680,150 | ) | (61,680,150 | ) | |||||||
Financing costs
|
— | (1,289,200 | ) | (1,289,200 | ) | |||||||
Unrealized gain on investments held in Trust Account
|
171,366 | — | 171,366 | |||||||||
|
|
|
|
|
|
|||||||
Total other (expense) income
|
171,366 | (62,969,350 | ) | (62,797,984 | ) | |||||||
|
|
|
|
|
|
|||||||
Net loss
|
$ | (933,235 | ) | $ | (62,969,350 | ) | $ | (63,902,585 | ) | |||
|
|
|
|
|
|
|||||||
Basic and Diluted weighted-average Class A common stock outstanding
|
69,000,000 | — | 69,000,000 | |||||||||
|
|
|
|
|
|
|||||||
Basic and Diluted net loss per Class A common shares
|
$ | 0.00 | — | $ | — | |||||||
|
|
|
|
|
|
|||||||
Basic and Diluted weighted-average Class B common stock outstanding
|
17,250,000 | — | 17,250,000 | |||||||||
|
|
|
|
|
|
|||||||
Basic and Diluted net loss per Class B common shares
|
$ | (0.05 | ) | $ | (3.65 | ) | $ | (3.70 | ) | |||
|
|
|
|
|
|
|||||||
Period From July 3, 2020 (Inception) Through
December 31, 2020 |
||||||||||||
As Previously
Reported
|
Restatement
Adjustment
|
As Restated
|
||||||||||
Statement of Cash Flows
|
||||||||||||
Net loss
|
$ | (933,235 | ) | $ | (62,969,350 | ) | $ | (63,902,585 | ) | |||
Adjustments to reconcile net loss to net cash used in operating activities
|
(146,366 | ) | 62,969,350 | 62,822,984 | ||||||||
Net cash used in operating activities
|
(1,165,494 | ) | — | (1,165,494 | ) | |||||||
Net cash used in investing activities
|
(690,000,000 | ) | — | (690,000,000 | ) | |||||||
Net cash provided by financing activities
|
692,860,173 | — | 692,860,173 | |||||||||
|
|
|
|
|
|
|||||||
Net change in cash
|
$
|
1,694,679
|
|
$
|
—
|
|
$
|
1,694,679
|
|
|||
|
|
|
|
|
|
As of September 21, 2020
|
||||||||||||
As Previously
Reported |
Restatement
Adjustment |
As Restated
|
||||||||||
Unaudited Condensed Balance Sheet
|
||||||||||||
Total assets
|
$ | 694,363,065 | $ | — | $ | 694,363,065 | ||||||
|
|
|
|
|
|
|||||||
Liabilities and shareholders’ equity
|
||||||||||||
Total current liabilities
|
$ | 1,790,393 | $ | — | $ | 1,790,393 | ||||||
Deferred underwriting commissions
|
24,150,000 | — | 24,150,000 | |||||||||
Derivative warrant liabilities
|
— | 38,257,890 | 38,257,890 | |||||||||
|
|
|
|
|
|
|||||||
Total liabilities
|
25,940,393 | 38,257,890 | 64,198,283 | |||||||||
Class A common stock, $0.0001 par value; shares subject to possible redemption
|
663,422,670 | (38,257,890 | ) | 625,164,780 | ||||||||
shareholders’ equity
|
||||||||||||
Preferred stock- $0.0001 par value
|
— | — | — | |||||||||
Class A common stock - $0.0001 par value
|
266 | 382 | 648 | |||||||||
Class B common stock - $0.0001 par value
|
1,725 | — | 1,725 | |||||||||
Additional paid-in-capital
|
5,071,351 | 1,288,818 | 6,360,169 | |||||||||
Accumulated deficit
|
(73,340 | ) | (1,289,200 | ) | (1,362,540 | ) | ||||||
|
|
|
|
|
|
|||||||
Total shareholders’ equity
|
5,000,002 | — | 5,000,002 | |||||||||
|
|
|
|
|
|
|||||||
Total liabilities and shareholders’ equity
|
$ | 694,363,065 | $ | — | $ | 694,363,065 | ||||||
|
|
|
|
|
|
• |
Level 1, defined as observable inputs such as quoted prices for identical instruments in active markets;
|
• |
Level 2, defined as inputs other than quoted prices in active markets that are either directly or indirectly observable such as quoted prices for similar instruments in active markets or quoted prices for identical or similar instruments in markets that are not active; and
|
• |
Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions, such as valuations derived from valuation techniques in which one or more significant inputs or significant value drivers are unobservable.
|
• |
in whole and not in part;
|
• |
at a price of $0.01 per warrant;
|
• |
in whole and not in part;
|
• |
at $0.10 per warrant upon a minimum of 30 days’ prior written notice of redemption provided that holders will be able to exercise their warrants on a cashless basis prior to redemption and receive that number of shares determined by reference to an agreed table based on the redemption date and the “fair market value” of Class A ordinary shares;
|
• |
if, and only if, the Reference Value equals or exceeds $10.00 per share (as adjusted); and
|
• |
if the Reference Value is less than $18.00 per share (as adjusted), the Private Placement Warrants must also concurrently be called for redemption on the same terms as the outstanding Public Warrants, as described above.
|
Quoted Prices in
Active Markets
|
Significant Other
Observable Inputs
|
Significant Other
Unobservable Inputs
|
||||||||||
Description
|
(Level 1)
|
(Level 2)
|
(Level 3)
|
|||||||||
A
s
set
s
:
|
||||||||||||
Investments held in Trust Account
(1)
|
$ | 690,167,879 | $ | — | $ | — | ||||||
Liabi
l
iti
e
s:
|
||||||||||||
Derivative warrant liabilities – Public Warrants
|
$ | 56,112,680 | $ | — | $ | — | ||||||
Derivative warrant liabilities – Private Warrants
|
$ | — | $ | — | $ | 43,825,360 |
(1)
|
- Excludes $3,487 in cash
|
As of
September 18,
2020 |
As of
September 30,
2020 |
As of
December 31,
2020 |
||||||||||
Stock price
|
$ | 9.67 | $ | 11.01 | $ | 11.56 | ||||||
Volatility
|
22.8 | % | 22.9 | % | 40.4 | % | ||||||
Expected life of the options to convert
|
5.75 | 5.71 | 5.46 | |||||||||
Risk-free rate
|
0.35 | % | 0.35 | % | 0.43 | % | ||||||
Dividend yield
|
— | — | — |
Derivative warrant liabilities at July 3, 2020 (inception)
|
$ | — | ||
Issuance of Public and Private Warrants
|
38,257,890 | |||
Change in fair value of derivative warrant liabilities
|
61,680,150 | |||
Derivative warrant liabilities at December 31, 2020
|
99,938,040 |
As of September 30, 2020
|
||||||||||||
As Previously
Reported |
Restatement
Adjustment |
As Restated
|
||||||||||
Unaudited Condensed Balance Sheet
|
||||||||||||
Total assets
|
$ | 693,957,206 | $ | — | $ | 693,957,206 | ||||||
|
|
|
|
|
|
|||||||
Liabilities and shareholders’ equity
|
||||||||||||
Total current liabilities
|
$ | 1,052,132 | $ | — | $ | 1,052,132 | ||||||
Deferred legal fees
|
239,161 | |||||||||||
Deferred underwriting commissions
|
24,150,000 | — | 24,150,000 | |||||||||
Derivative warrant liabilities
|
— | 56,334,070 | 56,334,070 | |||||||||
|
|
|
|
|
|
|||||||
Total liabilities
|
25,441,293 | 56,334,070 | 81,536,202 | |||||||||
Class A ordinary shares, $0.0001 par value; shares subject to possible redemption
|
663,276,660 | (56,334,070 | ) | 606,942,590 | ||||||||
Shareholders’ equity
|
||||||||||||
Preference shares - $0.0001 par value
|
— | — | — | |||||||||
Class A ordinary shares - $0.0001 par value
|
267 | 564 | 831 | |||||||||
Class B ordinary shares - $0.0001 par value
|
1,725 | — | 1,725 | |||||||||
Additional paid-in-capital
|
5,204,860 | 19,364,816 | 24,569,676 | |||||||||
Accumulated deficit
|
(206,850 | ) | (19,365,380 | ) | (19,572,230 | ) | ||||||
|
|
|
|
|
|
|||||||
Total shareholders’ equity
|
5,000,002 | — | 5,000,002 | |||||||||
|
|
|
|
|
|
|||||||
Total liabilities and shareholders’ equity
|
$ | 693,717,955 | $ | — | $ | 693,478,794 | ||||||
|
|
|
|
|
|
Period From July 3, 2020 (Inception)
Through September 30, 2020
|
||||||||||||
As Previously
Reported |
Restatement
Adjustment |
As Restated
|
||||||||||
Unaudited Condensed Statement of Operations
|
||||||||||||
Loss from operations
|
$ | (164,056 | ) | $ | — | $ | (164,056 | ) | ||||
Other (expense) income:
|
||||||||||||
Change in fair value of warrant liabilities
|
— | (18,076,180 | ) | (18,076,180 | ) | |||||||
Financing cost
|
— | (1,289,200 | ) | (1,289,200 | ) | |||||||
Unrealized loss on investments held in Trust Account
|
(42,794 | ) | — | (42,794 | ) | |||||||
|
|
|
|
|
|
|||||||
Total other (expense) income
|
(42,794 | ) | (19,365,380 | ) | (19,408,174 | ) | ||||||
|
|
|
|
|
|
|||||||
Net loss
|
$ | (206,850 | ) | $ | (19,365,380 | ) | $ | (19,572,230 | ) | |||
|
|
|
|
|
|
|||||||
Basic and Diluted weighted-average Class A common shares outstanding
|
69,000,000 | — | 69,000,000 | |||||||||
|
|
|
|
|
|
|||||||
Basic and Diluted net loss per Class A share
|
$ | (0.00 | ) | — | $ | (0.00 | ) | |||||
|
|
|
|
|
|
|||||||
Basic and Diluted weighted-average Class B common shares outstanding
|
17,250,000 | — | 17,250,000 | |||||||||
|
|
|
|
|
|
|||||||
Basic and Diluted net loss per Class B share
|
$ | — | — | $ | (1.13 | ) | ||||||
|
|
|
|
|
|
Period From July 3, 2020 (Inception)
Through September 30, 2020
|
||||||||||||
As Previously
Reported |
Restatement
Adjustment |
As Restated
|
||||||||||
Unaudited Condensed Statement of Cash Flows
|
||||||||||||
Net loss
|
$ | (206,850 | ) | $ | (19,365,380 | ) | $ | (19,572,230 | ) | |||
Adjustment to reconcile net loss to net cash used in operating activities
|
67,794 | 19,365,380 | 19,433,174 | |||||||||
Net cash used in operating activities
|
(515,550 | ) | — | (515,550 | ) | |||||||
Net cash used in investing activities
|
(690,000,000 | ) | — | (690,000,000 | ) | |||||||
Net cash provided by financing activities
|
693,295,138 | — | 693,295,138 | |||||||||
|
|
|
|
|
|
|||||||
Net change in cash
|
$ | 2,779,588 | $ | — | $ | 2,779,588 | ||||||
|
|
|
|
|
|
June 30, 2021
|
December 31, 2020
|
|||||||
(unaudited)
|
||||||||
Assets:
|
||||||||
Current assets:
|
||||||||
Cash
|
$ | 479,196 | $ | 1,694,679 | ||||
Prepaid expenses
|
353,274 | 507,465 | ||||||
|
|
|
|
|||||
Total current assets
|
832,470 | 2,202,144 | ||||||
Cash and investments held in Trust Account
|
690,045,877 | 690,171,366 | ||||||
|
|
|
|
|||||
Total Assets
|
$
|
690,878,347
|
|
$
|
692,373,510
|
|
||
|
|
|
|
|||||
Liabilities and Shareholders’ Equity:
|
||||||||
Current liabilities:
|
||||||||
Accounts payable
|
$ | 240,888 | $ | 15,775 | ||||
Accrued expenses
|
383,066 | 361,100 | ||||||
Due to related party
|
492,533 | 44,697 | ||||||
|
|
|
|
|||||
Total current liabilities
|
1,116,487 | 421,572 | ||||||
Deferred legal fees
|
239,161 | 239,161 | ||||||
Deferred underwriting commissions
|
24,150,000 | 24,150,000 | ||||||
Derivative warrant liability
|
56,314,870 | 99,938,040 | ||||||
|
|
|
|
|||||
Total liabilities
|
81,820,518 | 124,748,773 | ||||||
Commitments and Contingencies
|
||||||||
Class A ordinary shares; 60,405,782 and 56,262,473 shares subject to possible redemption at $10.00 per share at June 30, 2021 and December 31, 2020, respectively
|
604,057,820 | 562,624,730 | ||||||
Shareholders’ Equity:
|
||||||||
Preference shares, $0.0001 par value; 5,000,000 shares authorized; none issued and outstanding
|
— | — | ||||||
Class A ordinary shares, $0.0001 par value; 500,000,000 shares authorized; 8,594,218 and 12,737,527 shares issued and outstanding (excluding 60,405,782 and 56,262,473 shares subject to possible redemption) at June 30, 2021 and December 31, 2020, respectively
|
859 | 1,274 | ||||||
Class B ordinary shares, $0.0001 par value; 50,000,000 shares authorized; 17,250,000 shares issued and outstanding at June 30, 2021 and December 31, 2020
|
1,725 | 1,725 | ||||||
Additional
paid-in
capital
|
27,466,918 | 68,899,593 | ||||||
Accumulated deficit
|
(22,469,493 | ) | (63,902,585 | ) | ||||
|
|
|
|
|||||
Total shareholders’ equity
|
5,000,009 | 5,000,007 | ||||||
|
|
|
|
|||||
Total Liabilities and Shareholders’ Equity
|
$
|
690,878,347
|
|
$
|
692,373,510
|
|
||
|
|
|
|
For the three
months ended June 30, 2021 |
For the six
months ended June 30, 2021 |
|||||||
General and administrative expenses
|
$ | 1,002,670 | $ | 2,294,589 | ||||
|
|
|
|
|||||
Loss from operations
|
(1,002,670 | ) | (2,294,589 | ) | ||||
Other income
|
||||||||
Unrealized gain on investments held in Trust Account
|
24,664 | 104,511 | ||||||
Change in fair value of derivative warrant liabilities
|
1,804,620 | 43,623,170 | ||||||
|
|
|
|
|||||
Total other income
|
1,829,284 | 43,727,681 | ||||||
|
|
|
|
|||||
Net income
|
$ | 826,614 | $ | 41,433,092 | ||||
|
|
|
|
|||||
Basic and diluted weighted average shares outstanding of Class A ordinary shares
|
69,000,000 | 69,000,000 | ||||||
|
|
|
|
|||||
Basic and diluted net income per ordinary share, Class A
|
$ | — | $ | — | ||||
|
|
|
|
|||||
Basic and diluted weighted average shares outstanding of Class B ordinary shares
|
17,250,000 | 17,250,000 | ||||||
|
|
|
|
|||||
Basic and diluted net income per ordinary share, Class B
|
$ | 0.05 | $ | 2.40 | ||||
|
|
|
|
Ordinary Shares
|
Additional
|
Total
|
||||||||||||||||||||||||||
Class A
|
Class B
|
Paid-in
|
Accumulated
|
Shareholders’
|
||||||||||||||||||||||||
Shares
|
Amount
|
Shares
|
Amount
|
Capital
|
Deficit
|
Equity
|
||||||||||||||||||||||
Balance—December 31, 2020
|
|
12,737,527
|
|
$
|
1,274
|
|
|
17,250,000
|
|
$
|
1,725
|
|
$
|
68,899,593
|
|
$
|
(63,902,585
|
)
|
$
|
5,000,007
|
|
|||||||
Shares subject to possible redemption
|
(4,060,648 | ) | (406 | ) | — | — | (40,606,074 | ) | — | (40,606,480 | ) | |||||||||||||||||
Net income
|
— | — | — | — | — | 40,606,478 | 40,606,478 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Balance—March 31, 2021 (unaudited)
|
|
8,676,879
|
|
$
|
868
|
|
|
17,250,000
|
|
$
|
1,725
|
|
$
|
28,293,519
|
|
$
|
(23,296,107
|
)
|
$
|
5,000,005
|
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Shares subject to possible redemption
|
(82,661 | ) | (9 | ) | — | — | (826,601 | ) | — | (826,610 | ) | |||||||||||||||||
Net income
|
— | — | — | — | — | 826,614 | 826,614 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Balance—June 30, 2021 (unaudited)
|
|
8,594,218
|
|
$
|
859
|
|
|
17,250,000
|
|
$
|
1,725
|
|
$
|
27,466,918
|
|
$
|
(22,469,493
|
)
|
$
|
5,000,009
|
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flows from Operating Activities:
|
||||
Net income
|
$ | 41,433,092 | ||
Adjustments to reconcile net loss to net cash used in operating activities:
|
||||
Unrealized gain on investments held in Trust Accounts
|
(104,511 | ) | ||
Change in fair value of derivative warrant liability
|
(43,623,170 | ) | ||
Changes in operating assets and liabilities:
|
||||
Prepaid expenses
|
154,191 | |||
Accounts payable
|
225,113 | |||
Accrued expenses
|
21,966 | |||
Due to related party
|
447,836 | |||
|
|
|||
Net cash used in operating activities
|
(1,445,483 | ) | ||
|
|
|||
Cash Flows from Investing Activities:
|
||||
Cash withdrawn from Trust Account
|
230,000 | |||
|
|
|||
Net cash provided by investing activities
|
230,000 | |||
|
|
|||
Net decrease in cash
|
(1,215,483 | ) | ||
Cash—beginning of the period
|
1,694,679 | |||
|
|
|||
Cash—end of the period
|
$
|
479,196
|
|
|
|
|
|||
Supplemental disclosure of noncash investing and financing activities:
|
||||
Change in value of Class A ordinary shares subject to possible redemption
|
$ | 41,433,090 |
• |
Level 1, defined as observable inputs such as quoted prices for identical instruments in active markets;
|
• |
Level 2, defined as inputs other than quoted prices in active markets that are either directly or indirectly observable such as quoted prices for similar instruments in active markets or quoted prices for identical or similar instruments in markets that are not active; and
|
• |
Level 3, defined as unobservable inputs in which little or no market data exists, therefore requiring an entity to develop its own assumptions, such as valuations derived from valuation techniques in which one or more significant inputs or significant value drivers are unobservable.
|
For the
three months
ended June 30, 2021 |
For the
six months
ended June 30, 2021 |
|||||||
Class A ordinary shares
|
||||||||
Numerator: Earnings allocable to Class A ordinary shares
|
||||||||
Income from investments held in Trust Account
|
$ | 24,664 | $ | 104,511 | ||||
Less: Company’s portion available to be withdrawn to pay taxes
|
(24,664 | ) | (104,511 | ) | ||||
|
|
|
|
|||||
Net income attributable to Class A ordinary shares
|
$
|
—
|
$
|
—
|
||||
|
|
|
|
|||||
Denominator: Weighted average Class A ordinary shares
|
||||||||
Basic and diluted weighted average Class A shares outstanding
|
69,000,000
|
69,000,000
|
||||||
|
|
|
|
|||||
Basic and diluted net income per share, Class A ordinary shares
|
$
|
—
|
$
|
—
|
||||
|
|
|
|
|||||
Class B ordinary shares
|
||||||||
Numerator: Net Income minus Net Earnings
|
||||||||
Net income
|
$ | 826,614 | $ | 41,433,092 | ||||
Net income allocable to Class A ordinary shares
|
— | — | ||||||
|
|
|
|
|||||
Net income attributable to Class B ordinary shares
|
$
|
826,614
|
$
|
41,433,092
|
||||
|
|
|
|
|||||
Denominator: weighted average Class B ordinary shares
|
||||||||
Basic and diluted weighted average Class B shares outstanding
|
17,250,000
|
17,250,000
|
||||||
|
|
|
|
|||||
Basic and diluted net income per share, Class B ordinary shares
|
$
|
0.05
|
$
|
2.40
|
||||
|
|
|
|
• |
in whole and not in part;
|
• |
at a price of $0.01 per warrant;
|
• |
upon not less than 30 days’ prior written notice of redemption to each warrant holder; and
|
• |
if, and only if, the last reported sale price of Class A ordinary shares for any 20 trading days within a
30-trading
day period ending on the third trading day prior to the date on which the Company sends the notice of redemption to the warrant holders (the “Reference Value”) equals or exceeds $18.00 per share (as adjusted).
|
• |
in whole and not in part;
|
• |
at $0.10 per warrant upon a minimum of 30 days’ prior written notice of redemption provided that holders will be able to exercise their warrants on a cashless basis prior to redemption and receive that number of shares determined by reference to an agreed table based on the redemption date and the “fair market value” of Class A ordinary shares;
|
• |
if, and only if, the Reference Value equals or exceeds $10.00 per share (as adjusted); and
|
• |
if the Reference Value is less than $18.00 per share (as adjusted), the Private Placement Warrants must also concurrently be called for redemption on the same terms as the outstanding Public Warrants, as described above.
|
Quoted
Prices in
Active
Markets
|
Significant
Other
Observable
Inputs |
Significant
Other
Unobservable
Inputs |
||||||||||
Description
|
(Level 1)
|
(Level 2)
|
(Level 3)
|
|||||||||
Assets:
|
||||||||||||
U.S. Treasury Securities
|
$ | 690,039,494 | $ | — | $ | — | ||||||
Liabilities:
|
||||||||||||
Derivative warrant liabilities—public warrants
|
$ | 33,749,790 | $ | — | $ | — | ||||||
Derivative warrant liabilities—private warrants
|
$ | — | $ | — | $ | 22,565,080 |
Description
|
Quoted
Prices in
Active
Markets
(Level 1)
|
Significant
Other
Observable
Inputs (Level 2) |
Significant
Other
Unobservable
Inputs
(Level 3)
|
|||||||||
Assets:
|
||||||||||||
U.S. Treasury Securities
|
$ | 690,167,879 | $ | — | $ | — | ||||||
Liabilities:
|
||||||||||||
Derivative warrant liabilities—public warrants
|
$ | 56,112,680 | $ | — | $ | — | ||||||
Derivative warrant liabilities—private warrants
|
$ | — | $ | — | $ | 43,825,360 |
As of
June 30,
2021
|
As of
December 31,
2020
|
|||||||
Stock price
|
$ | 9.98 | $ | 11.56 | ||||
Volatility
|
27.3 | % | 40.4 | % | ||||
Expected life of the options to convert
|
5.10 | 5.46 | ||||||
Risk-free rate
|
0.88 | % | 0.43 | % | ||||
Dividend yield
|
— | — |
Derivative warrant liabilities as of December 31, 2020
|
$ | 48,825,360 | ||
Change in fair value of derivative warrant liabilities
|
(21,260,280 | ) | ||
|
|
|||
Derivative warrant liabilities as of June 30, 2021
|
$ | 22,565,080 | ||
|
|
December 31,
2020 |
December 31,
2019 |
|||||||
Assets
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$ | 77,337 | $ | 507,176 | ||||
Short-term investments
|
368,587 | — | ||||||
Other receivables
|
2,227 | 80 | ||||||
Prepaid expenses and other current assets
|
3,032 | 4,455 | ||||||
|
|
|
|
|||||
Total current assets
|
451,183 | 511,711 | ||||||
Property and equipment, net
|
34,126 | 22,219 | ||||||
Restricted cash
|
693 | 693 | ||||||
Equity method investment
|
10,990 | — | ||||||
Other
non-current
assets
|
262 | 180 | ||||||
|
|
|
|
|||||
Total assets
|
$ | 497,254 | $ | 534,803 | ||||
|
|
|
|
|||||
Liabilities, redeemable convertible preferred stock, and stockholders’ deficit
|
||||||||
Current liabilities
|
||||||||
Accounts payable
|
$ | 4,928 | $ | 6,072 | ||||
Tenant improvement loan, current portion
|
244 | 383 | ||||||
Capital lease, current portion
|
792 | 880 | ||||||
Deferred rent, current portion
|
295 | 209 | ||||||
Accrued expenses and other current liabilities
|
1,746 | 737 | ||||||
|
|
|
|
|||||
Total current liabilities
|
8,005 | 8,281 | ||||||
Tenant improvement loan, net of current portion
|
946 | 1,190 | ||||||
Capital lease, net of current portion
|
661 | 1,199 | ||||||
Deferred rent, net of current portion
|
1,321 | 1,617 | ||||||
Early exercise stock option liabilities
|
1,177 | 1,257 | ||||||
|
|
|
|
|||||
Total liabilities
|
12,110 | 13,544 | ||||||
Commitments and contingencies (Note 7)
|
||||||||
Redeemable convertible preferred stock: $0.00001 par value — 105,500,526 shares authorized at December 31, 2020 and 2019, 96,252,623 shares and 92,613,015 shares issued and outstanding at December 31, 2020 and 2019, respectively (Cumulative liquidation preference $769,679 and $699,179 at December 31, 2020 and 2019, respectively)
|
768,312 | 698,452 | ||||||
Stockholders’ deficit:
|
||||||||
Common stock: $0.00001 par value — 149,793,455 shares authorized at December 31, 2020 and 2019, 35,305,759 and 35,154,952 shares issued and outstanding at December 31, 2020 and 2019, respectively
|
— | — | ||||||
Additional
paid-in
capital
|
12,591 | 4,957 | ||||||
Accumulated deficit
|
(296,286 | ) | (182,122 | ) | ||||
Accumulated other comprehensive income (loss)
|
527 | (28 | ) | |||||
|
|
|
|
|||||
Total stockholders’ deficit
|
(283,168 | ) | (177,193 | ) | ||||
|
|
|
|
|||||
Total liabilities, redeemable convertible preferred stock, and stockholders’ deficit
|
$ | 497,254 | $ | 534,803 | ||||
|
|
|
|
Year Ended
December 31, 2020 |
Year Ended
December 31, 2019 |
|||||||
Operating expenses:
|
||||||||
Research and development (including related party purchases of $1,249
|
$ | 108,741 | $ | 70,178 | ||||
Selling, general and administrative (including related party purchases of $220 and $200 for the years ended December 31, 2020 and 2019, respectively)
|
23,495 | 13,970 | ||||||
|
|
|
|
|||||
Total operating expenses
|
132,236 | 84,148 | ||||||
|
|
|
|
|||||
Loss from operations
|
(132,236 | ) | (84,148 | ) | ||||
Interest income
|
5,428 | 1,937 | ||||||
Interest expense
|
(249 | ) | (22,952 | ) | ||||
Loss from changes in fair value of derivative liabilities
|
— | (4,947 | ) | |||||
Convertible note extinguishment loss
|
— | (366 | ) | |||||
Gain on deconsolidation of subsidiary
|
6,904 | — | ||||||
Income from equity method investment
|
5,799 | — | ||||||
Other income, net
|
221 | 129 | ||||||
|
|
|
|
|||||
Total other income (expense), net
|
18,103 | (26,199 | ) | |||||
|
|
|
|
|||||
Loss before income taxes
|
(114,133 | ) | (110,347 | ) | ||||
Income tax expense
|
31 | 2 | ||||||
|
|
|
|
|||||
Net loss
|
$ | (114,164 | ) | $ | (110,349 | ) | ||
|
|
|
|
|||||
Net loss per share, basic and diluted
|
$ | (3.80 | ) | $ | (4.11 | ) | ||
|
|
|
|
|||||
Weighted-average common shares outstanding, basic and diluted
|
30,066,847 | 26,839,662 | ||||||
|
|
|
|
Year Ended
December 31, 2020 |
Year Ended
December 31, 2019 |
|||||||
Net loss
|
$ | (114,164 | ) | $ | (110,349 | ) | ||
Other comprehensive loss:
|
||||||||
Unrealized gain on
available-for-sale
|
321 | — | ||||||
Foreign currency translation gain
|
234 | 40 | ||||||
|
|
|
|
|||||
Total other comprehensive income
|
555 | 40 | ||||||
|
|
|
|
|||||
Comprehensive loss
|
$ | (113,609 | ) | $ | (110,309 | ) | ||
|
|
|
|
Redeemable Convertible
Preferred Stock |
Common Stock
|
Additional
Paid-In
Capital
|
Accumulated
Deficit
|
Accumulated
Other
Comprehensive
Loss
|
Total
Stockholders’
Deficit
|
|||||||||||||||||||||||||||
Shares
|
Amount
|
Shares
|
Amount
|
|||||||||||||||||||||||||||||
Balance at January 1, 2019
|
63,112,693 | $ | 127,315 | 33,738,683 | $ | — | $ | 626 | $ | (71,773 | ) | $ | (68 | ) | $ | (71,215 | ) | |||||||||||||||
Net loss
|
— | — | — | — | — | (110,349 | ) | — | (110,349 | ) | ||||||||||||||||||||||
Other comprehensive loss
|
— | — | — | — | — | — | 40 | 40 | ||||||||||||||||||||||||
Issuance of Series C redeemable convertible preferred stock for cash, net issuance costs of $284
|
23,466,387 | 454,260 | — | — | — | — | — | — | ||||||||||||||||||||||||
Issuance of Series C redeemable convertible preferred stock upon conversion of debt
|
6,033,935 | 116,877 | — | — | — | — | — | — | ||||||||||||||||||||||||
Issuance of common stock upon exercise of stock options
|
— | — | 2,092,409 | — | 151 | — | — | 151 | ||||||||||||||||||||||||
Repurchase of common stock
|
— | — | (676,140 | ) | — | (10 | ) | — | — | (10 | ) | |||||||||||||||||||||
Vesting of early exercised stock options
|
— | — | — | — | 284 | — | — | 284 | ||||||||||||||||||||||||
Stock-based compensation expense
|
— | — | — | — | 3,906 | — | — | 3,906 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Balance at December 31, 2019
|
92,613,015 | $ | 698,452 | 35,154,952 | $ | — | $ | 4,957 | $ | (182,122 | ) | $ | (28 | ) | $ | (177,193 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Net loss
|
— | — | — | — | — | (114,164 | ) | — | (114,164 | ) | ||||||||||||||||||||||
Other comprehensive income
|
— | — | — | — | — | — | 555 | 555 | ||||||||||||||||||||||||
Issuance of redeemable convertible preferred stock, net of issuance costs of $640
|
3,639,608 | 69,860 | — | — | — | — | — | — | ||||||||||||||||||||||||
Issuance of common stock upon exercise of stock options
|
— | — | 204,939 | — | 129 | — | — | 129 | ||||||||||||||||||||||||
Repurchase of common stock
|
— | — | (54,132 | ) | — | (1 | ) | — | — | (1 | ) | |||||||||||||||||||||
Vesting of early exercised stock options
|
— | — | — | — | 321 | — | — | 321 | ||||||||||||||||||||||||
Stock-based compensation expense
|
— | — | — | — | 7,185 | — | — | 7,185 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Balance at December 31, 2020
|
96,252,623 | $ | 768,312 | 35,305,759 | — | $ | 12,591 | $ | (296,286 | ) | $ | 527 | $ | (283,168 | ) | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
2020 |
December 31,
2019 |
|||||||
Cash flows from operating activities
|
||||||||
Net loss
|
$ | (114,164 | ) | $ | (110,349 | ) | ||
Reconciliation of net loss to net cash used in operating activities:
|
||||||||
Depreciation and amortization expense
|
7,404 | 3,985 | ||||||
Non-cash
interest expense related to convertible notes
|
— | 22,823 | ||||||
Loss from change in the fair value of derivative liabilities
|
— | 4,947 | ||||||
Convertible note extinguishment loss
|
— | 366 | ||||||
Stock-based compensation expense
|
7,185 | 3,906 | ||||||
Income from equity method investment
|
(5,799 | ) | — | |||||
Gain on deconsolidation of subsidiary
|
(6,904 | ) | — | |||||
Net accretion and amortization of investments in marketable debt securities
|
1,179 | — | ||||||
Changes in operating assets and liabilities
|
||||||||
Other receivables
|
(4,524 | ) | (58 | ) | ||||
Prepaid expenses and other current assets
|
1,423 | (4,215 | ) | |||||
Other
non-current
assets
|
(82 | ) | (68 | ) | ||||
Accounts payable
|
3,260 | 1,204 | ||||||
Accrued expenses and other current liabilities
|
5,332 | 625 | ||||||
Deferred rent
|
(210 | ) | 597 | |||||
|
|
|
|
|||||
Net cash used in operating activities
|
(105,900 | ) | (76,237 | ) | ||||
|
|
|
|
|||||
Cash flows from investing activities
|
||||||||
Purchase of marketable debt securities
|
(620,781 | ) | — | |||||
Proceeds from sales of marketable debt securities
|
28,660 | — | ||||||
Proceeds from maturities of marketable debt securities
|
222,675 | — | ||||||
Purchases of property and equipment
|
(23,306 | ) | (9,240 | ) | ||||
Disposal of cash on deconsolidation upon loss of control over the fully owned subsidiary
|
(407 | ) | — | |||||
|
|
|
|
|||||
Net cash used in investing activities
|
(393,159 | ) | (9,240 | ) | ||||
|
|
|
|
|||||
Cash flows from financing activities
|
||||||||
Proceeds from issuance of Series C redeemable convertible preferred stock, net
|
69,860 | 454,260 | ||||||
Proceeds from issuance of convertible notes
|
— | 12,267 | ||||||
Proceeds from exercise of stock options and stock purchase rights
|
369 | 1,376 | ||||||
Proceeds from tenant improvement loan
|
— | 1,056 | ||||||
Repayments of tenant improvement loan
|
(383 | ) | — | |||||
Payments on capital lease obligation
|
(626 | ) | (549 | ) | ||||
|
|
|
|
|||||
Net cash provided by financing activities
|
69,220 | 468,410 | ||||||
|
|
|
|
|||||
Net change in cash, cash equivalents and restricted cash
|
(429,839 | ) | 382,933 | |||||
Cash, cash equivalents and restricted cash, at the beginning of the year
|
507,869 | 124,936 | ||||||
|
|
|
|
|||||
Cash, cash equivalents and restricted cash, at the end of the year
|
$ | 78,030 | $ | 507,869 | ||||
|
|
|
|
|||||
Reconciliation of cash, cash equivalents and restricted cash to consolidated balance sheets
|
||||||||
Cash and cash equivalents
|
$ | 77,337 | $ | 507,176 | ||||
Restricted cash
|
693 | 693 | ||||||
|
|
|
|
|||||
Cash, cash equivalents and restricted cash in consolidated balance sheets
|
$ | 78,030 | $ | 507,869 | ||||
|
|
|
|
|||||
Non-cash
investing activities
|
||||||||
Unpaid property and equipment purchases
|
$ | 1,806 | $ | 4,112 | ||||
Property and equipment purchased through capital leases
|
$ | — | $ | 1,332 | ||||
Deconsolidation of net liabilities of fully owned subsidiary due to loss of control
|
$ | 1,713 | $ | — | ||||
Non-cash
financing activities
|
||||||||
Conversion of convertible notes into redeemable convertible preferred stock
|
$ | — | $ | 80,793 | ||||
Settlement of derivative liabilities upon conversion of convertible notes into redeemable convertible preferred stock
|
$ | — | $ | 36,084 |
• |
Back-solve security value – Series A preferred units issued at a price per unit of $0.375;
|
• |
Option term – five years based upon the current state of development of SummerBio;
|
• |
Risk-free rate – 0.28%, which represents the five-year constant maturity U.S. Treasury Bonds as of the valuation date;
|
• |
Volatility – stock price volatility was estimated based upon an analysis of historical volatilities of a peer group of companies, which was estimated at 39.5%;
|
• |
Option value allocation percentages – The allocation percentages ranged between 19.2% - 100%.
|
• |
Level I — Inputs are unadjusted, quoted prices in active markets for identical assets or liabilities at the measurement date;
|
• |
Level II — Inputs are observable, unadjusted quoted prices in active markets for similar assets or liabilities, unadjusted quoted prices for identical or similar assets or liabilities in markets that are not active, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the related assets or liabilities; and
|
• |
Level III — Unobservable inputs that are significant to the measurement of the fair value of the assets or liabilities that are supported by little or no market data.
|
December 31, 2020
|
||||||||||||||||
Level 1
|
Level 2
|
Level 3
|
Total
|
|||||||||||||
Assets measured at fair value
|
||||||||||||||||
Money market funds
|
$ | 74,049 | $ | — | $ | — | $ | 74,049 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Cash equivalents
|
74,049 | — | — | 74,049 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Asset backed securities
|
— | 52,022 | — | 52,022 | ||||||||||||
Government debt securities
|
— | 57,829 | — | 57,829 | ||||||||||||
Corporate debt securities
|
— | 258,736 | — | 258,736 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Marketable debt securities
|
— | 368,587 | — | 368,587 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total fair value of assets
|
$ | 74,049 | $ | 368,587 | — | $ | 442,636 | |||||||||
|
|
|
|
|
|
|
|
December 31, 2020
|
||||||||||||||||
Adjusted
Basis |
Unrealized
Gains |
Unrealized
Losses |
Recorded
Basis |
|||||||||||||
Asset backed securities
|
$ | 51,938 | $ | 84 | — | $ | 52,022 | |||||||||
Government debt securities
|
57,826 | 3 | — | 57,829 | ||||||||||||
Corporate debt securities
|
258,502 | 234 | — | 258,736 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total
|
$ | 368,266 | $ | 321 | — | $ | 368,587 | |||||||||
|
|
|
|
|
|
|
|
2020
|
2019
|
|||||||
Fair value as of January 1
|
$ | — | $ | 27,033 | ||||
Initial fair value of derivative liabilities
|
— | 4,104 | ||||||
Change in fair value
|
— | 4,947 | ||||||
Settlement of derivative liabilities upon conversion of convertible notes into redeemable convertible preferred stock
|
— | (36,084 | ) | |||||
|
|
|
|
|||||
Fair value as of December 31
|
$ | — | $ | — | ||||
|
|
|
|
December 31,
2020 |
December 31,
2019 |
|||||||
Equipment
|
$ | 29,229 | $ | 15,652 | ||||
Computer software
|
5,992 | 4,301 | ||||||
Leasehold improvements
|
5,724 | 4,027 | ||||||
Molds and tooling
|
3,269 | 3,108 | ||||||
Vehicles
|
211 | 109 | ||||||
Furniture and fixtures
|
95 | 52 | ||||||
Construction
in-progress
|
3,741 | 1,668 | ||||||
|
|
|
|
|||||
Gross property and equipment
|
48,261 | 28,917 | ||||||
Accumulated depreciation and amortization
|
(14,135 | ) | (6,698 | ) | ||||
|
|
|
|
|||||
Property and equipment, net
|
$ | 34,126 | $ | 22,219 | ||||
|
|
|
|
December 31,
2020 |
December 31,
2019 |
|||||||
Prepaid equipment
|
$ | 1,352 | $ | 2,945 | ||||
Prepaid software
|
1,076 | 692 | ||||||
Prepaid taxes
|
243 | 380 | ||||||
Prepaid insurance
|
156 | 116 | ||||||
Other
|
205 | 322 | ||||||
|
|
|
|
|||||
Total
|
$ | 3,032 | $ | 4,455 | ||||
|
|
|
|
Years ending December 31,
|
Amount
|
|||
2021
|
$ | 244 | ||
2022
|
265 | |||
2023
|
287 | |||
2024
|
310 | |||
2025 and thereafter
|
84 | |||
|
|
|||
Total payable amount
|
1,190 | |||
Less: current portion of tenant improvement loan
|
(244 | ) | ||
|
|
|||
Noncurrent portion of tenant improvement loan, net
|
$ | 946 | ||
|
|
Years ending December 31,
|
Amount
|
|||
2021
|
$ | 4,638 | ||
2022
|
4,182 | |||
2023
|
3,795 | |||
2024
|
3,235 | |||
2025
|
578 | |||
2026 and thereafter
|
3,731 | |||
|
|
|||
Total minimum future lease payments, operating leases
|
$ | 20,159 | ||
|
|
Years ending December 31,
|
Amount
|
|||
2021
|
$ | 792 | ||
2022
|
586 | |||
2023
|
72 | |||
2024
|
3 | |||
|
|
|||
Total payments
|
1,453 | |||
Less current portion
|
(792 | ) | ||
|
|
|||
Noncurrent portion
|
$ | 661 | ||
|
|
December 31, 2019
|
||||||||||||||||||||
Shares
Authorized |
Shares
Issued and Outstanding |
Original
Issue Price |
Aggregate
Liquidation Preference |
Net
Carrying Value |
||||||||||||||||
Series
Seed-1
Preferred Stock
|
6,950,729 | 6,950,729 | $ | 0.6167 | $ | 4,287 | $ | 4,287 | ||||||||||||
12,298,893 | 12,298,893 | 0.6167 | 7,585 | 7,585 | ||||||||||||||||
Series A Preferred Stock
|
21,418,756 | 21,418,756 | 0.7594 | 16,265 | 16,040 | |||||||||||||||
Series B Preferred Stock
|
22,652,737 | 22,444,315 | 4.4383 | 99,615 | 99,398 | |||||||||||||||
Series C Preferred Stock
|
42,179,411 | 29,500,322 | 19.3702 | 571,427 | 571,142 | |||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total redeemable convertible preferred stock
|
105,500,526 | 92,613,015 | $ | 699,179 | $ | 698,452 | ||||||||||||||
|
|
|
|
|
|
|
|
December 31,
2020 |
December 31,
2019 |
|||||||
Stock options outstanding under 2016 Stock Plan
|
7,108,899 | 3,937,765 | ||||||
Remaining shares available for future issuance under the 2016 plan
|
144,375 | 816,316 | ||||||
Redeemable convertible preferred stock
|
96,252,623 | 92,613,015 | ||||||
Common stock warrants
|
219,402 | 219,402 | ||||||
|
|
|
|
|||||
Total common stock reserved
|
103,725,299 | 97,586,498 | ||||||
|
|
|
|
Options Outstanding
|
||||||||||||||||||||
Stock Option Activity
|
Options
Available for Grant |
Number of
Options |
Weighted-
Average Exercise Price Per Share |
Weighted-
Average Remaining Contractual Term (in years) |
Aggregate
Intrinsic Value (in thousands) |
|||||||||||||||
Balances—January 1, 2019
|
3,498,354 | 1,786,829 | $ | 0.66 | ||||||||||||||||
Additional shares authorized
|
1,400,000 | — | ||||||||||||||||||
Options canceled and forfeited
|
545,289 | (545,289 | ) | $ | 0.69 | |||||||||||||||
Repurchases
|
161,307 | — | ||||||||||||||||||
Options granted
|
(4,798,400 | ) | 4,798,400 | $ | 0.69 | |||||||||||||||
Options exercised
|
— | (2,092,409 | ) | $ | 0.66 | |||||||||||||||
Options expired
|
9,766 | (9,766 | ) | $ | 0.70 | |||||||||||||||
|
|
|
|
|||||||||||||||||
Balances—December 31, 2019
|
816,316 | 3,937,765 | $ | 0.70 | 9.37 | $ | 28,762 | |||||||||||||
Additional shares authorized
|
2,682,255 | |||||||||||||||||||
Options canceled and forfeited
|
761,430 | (761,430 | ) | $ | 0.91 | |||||||||||||||
Repurchases
|
21,877 | — | ||||||||||||||||||
Options granted
|
(4,137,503 | ) | 4,137,503 | $ | 3.53 | |||||||||||||||
Options exercised
|
— | (204,939 | ) | $ | 1.87 | |||||||||||||||
|
|
|
|
|||||||||||||||||
Balances—December 31, 2020
|
144,375 | 7,108,899 | $ | 2.29 | 9.06 | $ | 187,460 | |||||||||||||
|
|
|
|
|||||||||||||||||
Vested and expected to vest
|
7,108,899 | $ | 2.29 | 9.06 | $ | 187,460 | ||||||||||||||
Shares exercisable (vested and unvested)
|
1,513,553 | $ | 1.96 | 8.75 | $ | 40,418 |
Options Outstanding
|
||||||||||||||||||||
Stock Option Activity
|
Options
Available for Grant |
Number of
Options |
Weighted-
Average Exercise Price Per Share |
Weighted-
Average Remaining Contractual Term (in years) |
Aggregate
Intrinsic Value (in thousands) |
|||||||||||||||
Balances—January 1, 2019
|
— | 1,021,250 | $ | 0.02 | ||||||||||||||||
|
|
|
|
|||||||||||||||||
Balances—December 31, 2019
|
— | 1,021,250 | $ | 0.02 | 5.37 | $ | 8,150 | |||||||||||||
Options Exercised
|
— | (16,703 | ) | $ | 0.02 | |||||||||||||||
|
|
|
|
|||||||||||||||||
Balances—December 31, 2020
|
— | 1,004,547 | $ | 0.02 | 4.37 | $ | 28,770 | |||||||||||||
|
|
|
|
|||||||||||||||||
Vested and expected to vest
|
1,004,547 | $ | 0.02 | 4.37 | $ | 28,770 | ||||||||||||||
Exercisable
|
1,004,547 | $ | 0.02 | 4.37 | $ | 28,770 |
Year Ended December 31,
|
||||||||
2020
|
2019
|
|||||||
Expected volatility
|
49.9% - 73.5%
|
44.9% - 52.0%
|
||||||
Expected dividend yield
|
0% | 0% | ||||||
Expected term (in years)
|
5.0 - 6.6 | 5.1 - 6.6 | ||||||
Risk-free interest rate
|
1.3% - 1.4%
|
1.6% - 2.7%
|
Year Ended
December 31, |
||||||||
2020
|
2019
|
|||||||
Research and development expenses
|
$ | 6,130 | $ | 3,301 | ||||
Selling, general and administrative expenses
|
1,055 | 605 | ||||||
|
|
|
|
|||||
Total stock-based compensation expense
|
$ | 7,185 | $ | 3,906 | ||||
|
|
|
|
Year Ended December 31,
|
||||||||
2020
|
2019
|
|||||||
United States
|
$ | (114,010 | ) | $ | (110,334 | ) | ||
International
|
(123 | ) | (13 | ) | ||||
|
|
|
|
|||||
Loss before income taxes
|
$
|
(114,133
|
)
|
$
|
(110,347
|
)
|
||
|
|
|
|
Year Ended
December 31, |
||||||||
2020
|
2019
|
|||||||
Current
|
||||||||
Federal
|
$ | — | $ | — | ||||
State
|
24 | 2 | ||||||
Foreign
|
7 | — | ||||||
|
|
|
|
|||||
Total current provision
|
31 | 2 | ||||||
|
|
|
|
|||||
Deferred
|
— | — | ||||||
Federal
|
— | — | ||||||
State
|
— | — | ||||||
|
|
|
|
|||||
Total deferred provision
|
— | — | ||||||
|
|
|
|
|||||
Total provision
|
$ | 31 | $ | 2 | ||||
|
|
|
|
Year Ended
December 31, |
||||||||
2020
|
2019
|
|||||||
%
|
%
|
|||||||
Tax at federal statutory rate
|
(21.0 | )% | (21.0 | )% | ||||
State taxes, net of federal benefit
|
(6.7 | )% | (6.3 | )% | ||||
Permanent differences
|
0.2 | % | 1.6 | % | ||||
Change in valuation allowance
|
32.5 | % | 29.5 | % | ||||
Tax credits
|
(5.0 | )% | (3.8 | )% | ||||
|
|
|
|
|||||
Provision for taxes
|
0.0 | % | 0.0 | % | ||||
|
|
|
|
December 31,
|
||||||||
2020
|
2019
|
|||||||
Deferred tax assets:
|
||||||||
Net operating loss carryforwards
|
$ | 72,785 | $ | 42,051 | ||||
Research and development credits
|
13,499 | 7,759 | ||||||
Accruals and reserves
|
493 | 551 | ||||||
Property and equipment
|
811 | 474 | ||||||
Stock-based compensation
|
649 | 418 | ||||||
|
|
|
|
|||||
Total deferred tax assets
|
88,237 | 51,253 | ||||||
Valuation allowance
|
(88,237 | ) | (51,115 | ) | ||||
|
|
|
|
|||||
Net deferred tax assets
|
— | 138 | ||||||
|
|
|
|
|||||
Deferred tax liabilities
|
||||||||
Intangibles
|
— | (138 | ) | |||||
|
|
|
|
|||||
Total deferred tax liabilities
|
— | (138 | ) | |||||
|
|
|
|
|||||
Net deferred tax assets
|
$ | — | $ | — | ||||
|
|
|
|
December 31,
|
||||||||
2020
|
2019
|
|||||||
Unrecognized tax benefits, beginning of the year
|
$ | 2,872 | $ | 1,299 | ||||
Increases related to prior year tax positions
|
— | — | ||||||
Decreases related to prior year tax positions
|
— | — | ||||||
Increases related to current year tax positions
|
2,123 | 1,573 | ||||||
|
|
|
|
|||||
Unrecognized tax benefits, end of year
|
$ | 4,995 | $ | 2,872 | ||||
|
|
|
|
Year Ended
December 31, 2020 |
Year Ended
December 31, 2019 |
|||||||
Numerator:
|
||||||||
Net loss attributable to common stockholders
|
$ | (114,164 | ) | $ | (110,349 | ) | ||
|
|
|
|
|||||
Denominator:
|
||||||||
Weighted-average shares outstanding
|
30,066,847 | 26,839,662 | ||||||
|
|
|
|
|||||
Net loss per share attributable to common stockholders, basic and diluted
|
$ | (3.80 | ) | $ | (4.11 | ) | ||
|
|
|
|
Year Ended
December 31, 2020 |
Year Ended
December 31, 2019 |
|||||||
Redeemable convertible preferred stock
|
96,252,623 | 92,613,015 | ||||||
Common stock warrants
|
219,402 | 219,402 | ||||||
Unvested restricted stock awards
|
158,250 | 182,250 | ||||||
Options to purchase common stock
|
7,108,899 | 3,937,765 | ||||||
|
|
|
|
|||||
Total
|
103,739,174 | 96,952,432 | ||||||
|
|
|
|
June 30,
2021
|
December 31,
2020
|
|||||||
Assets
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$ | 44,264 | $ | 77,337 | ||||
Short-term investments
|
375,210 | 368,587 | ||||||
Other receivables
|
3,920 | 2,227 | ||||||
Prepaid expenses and other current assets
|
7,113 | 3,032 | ||||||
|
|
|
|
|||||
Total current assets
|
430,507 | 451,183 | ||||||
Property and equipment, net
|
41,552 | 34,126 | ||||||
Restricted cash
|
762 | 693 | ||||||
Equity method investment
|
13,097 | 10,990 | ||||||
Intangible assets
|
14,779 | — | ||||||
Goodwill
|
4,880 | — | ||||||
Deferred offering costs
|
5,170 | — | ||||||
Other
non-current
assets
|
55,330 | 262 | ||||||
|
|
|
|
|||||
Total assets
|
$ | 566,077 | $ | 497,254 | ||||
|
|
|
|
|||||
Liabilities, redeemable convertible preferred stock, and stockholders’ deficit
|
||||||||
Current liabilities:
|
||||||||
Accounts payable
|
5,531 | 4,928 | ||||||
Tenant improvements loan, current portion
|
254 | 244 | ||||||
Capital lease, current portion
|
415 | 792 | ||||||
Deferred rent, current portion
|
340 | 295 | ||||||
Accrued expenses and other current liabilities
|
5,875 | 1,746 | ||||||
|
|
|
|
|||||
Total current liabilities
|
12,415 | 8,005 | ||||||
Tenant improvements loan, net of current portion
|
817 | 946 | ||||||
Capital lease, net of current portion
|
1,529 | 661 | ||||||
Deferred rent, net of current portion
|
1,136 | 1,321 | ||||||
Convertible promissory notes
|
76,296 | — | ||||||
Redeemable convertible preferred stock warrant liability
|
627 | — | ||||||
Stock repurchase liability
|
1,022 | 1,177 | ||||||
|
|
|
|
|||||
Total liabilities
|
$ | 93,842 | $ | 12,110 | ||||
|
|
|
|
|||||
Commitments and contingencies (Note 8)
|
||||||||
Redeemable convertible preferred stock: $0.00001 par value — 105,500,526 shares authorized at June 30, 2021 and December 31, 2020, 99,608,293 shares and 96,252,623 shares issued and outstanding at June 30, 2021 and December 31, 2020, respectively (Cumulative liquidation preference $862,298 and $769,679 at June 30, 2021 and December 31, 2020, respectively)
|
845,931 | 768,312 | ||||||
Stockholders’ deficit:
|
||||||||
Common stock: $0.00001 par value — 149,793,455 shares authorized at June 30, 2021 and December 31, 2020, 35,693,292 and 35,305,759 shares issued and outstanding at June 30, 2021 and December 31, 2020, respectively
|
— | — | ||||||
Additional
paid-in
capital
|
28,845 | 12,591 | ||||||
Accumulated deficit
|
(402,797 | ) | (296,286 | ) | ||||
Accumulated other comprehensive income
|
256 | 527 | ||||||
|
|
|
|
|||||
Total stockholders’ deficit
|
(373,696 | ) | (283,168 | ) | ||||
|
|
|
|
|||||
Total liabilities, redeemable convertible preferred stock, and stockholders’ deficit
|
$ | 566,077 | $ | 497,254 | ||||
|
|
|
|
Six Months Ended June 30,
|
||||||||
2021
|
2020
|
|||||||
Operating expenses:
|
||||||||
Research and development (including related party purchases of $976 and $624 for the six months ended June 30, 2021 and 2020, respectively)
|
$ | 88,218 | $ | 46,227 | ||||
Selling, general and administrative (including related party purchases of $236 and $150 for the six months ended June 30, 2021 and 2020, respectively)
|
25,980 | 9,597 | ||||||
|
|
|
|
|||||
Total operating expenses
|
114,198 | 55,824 | ||||||
|
|
|
|
|||||
Loss from operations
|
(114,198 | ) | (55,824 | ) | ||||
Interest income
|
672 | 3,598 | ||||||
Interest expense
|
(1,904 | ) | (128 | ) | ||||
Income from equity method investment
|
8,891 | — | ||||||
Other income, net
|
37 | 134 | ||||||
|
|
|
|
|||||
Total other income, net
|
7,696 | 3,604 | ||||||
|
|
|
|
|||||
Loss before income taxes
|
(106,502 | ) | (52,220 | ) | ||||
Income tax expense
|
9 | 17 | ||||||
|
|
|
|
|||||
Net loss
|
$ | (106,511 | ) | $ | (52,237 | ) | ||
|
|
|
|
|||||
Net loss per share, basic and diluted
|
$ | (3.30 | ) | $ | (1.80 | ) | ||
|
|
|
|
|||||
Weighted-average common shares outstanding, basic and diluted
|
32,239,448 | 29,040,833 | ||||||
|
|
|
|
Six Months Ended
June 30, |
||||||||
2021
|
2020
|
|||||||
Net loss
|
$ | (106,511 | ) | $ | (52,237 | ) | ||
Other comprehensive (loss) gain:
|
||||||||
Foreign currency translation gain (loss)
|
52 | (50 | ) | |||||
Unrealized (loss) gain on
available-for-sale
|
(323 | ) | 1,364 | |||||
|
|
|
|
|||||
Total other comprehensive (loss) gain
|
(271 | ) | 1,314 | |||||
|
|
|
|
|||||
Comprehensive loss
|
$ | (106,782 | ) | $ | (50,923 | ) | ||
|
|
|
|
Preferred Stock
|
Common Stock
|
Additional
Paid-In
Capital
|
Accumulated
Deficit
|
Accumulated
Other
Comprehensive
Income (Loss)
|
Total
Stockholders’
Equity
|
|||||||||||||||||||||||||||||||
Shares
|
Amount
|
Shares
|
Amount
|
|||||||||||||||||||||||||||||||||
Balance at January 1, 2021
|
96,252,623 | $ | 768,312 |
|
35,305,759 | $ | — | $ | 12,591 | $ | (296,286 | ) | $ | 527 | $ | (283,168 | ) | |||||||||||||||||||
Net loss
|
— | — |
|
— | — | — | (106,511 | ) | — | (106,511 | ) | |||||||||||||||||||||||||
Other comprehensive loss
|
— | — |
|
— | — | — | — | (271 | ) | (271 | ) | |||||||||||||||||||||||||
Series C redeemable convertible preferred stock issued upon business combination (Note 4)
|
2,581,285 | 77,619 |
|
— | — | — | — | — | — | |||||||||||||||||||||||||||
Series C redeemable convertible preferred stock issued upon assets acquisition (Note 4)
|
774,385 | — |
|
— | — | — | — | — | — | |||||||||||||||||||||||||||
Issuance of common stock upon exercise of stock options
|
— | — |
|
387,533 | — | 520 | — | — | 520 | |||||||||||||||||||||||||||
Vesting of early exercised stock options
|
— | — |
|
— | — | 187 | — | — | 187 | |||||||||||||||||||||||||||
Stock-based compensation expense
|
— | — |
|
— | — | 11,800 | — | — | 11,800 | |||||||||||||||||||||||||||
Other
non-cash
compensation expense
|
— | — |
|
— | — | 3,747 | — | — | 3,747 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance at June 30, 2021
|
99,608,293 | $ | 845,931 |
|
35,693,292 | $ | — | $ | 28,845 | $ | (402,797 | ) | $ | 256 | $ | (373,696 | ) | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Stock
|
Common Stock
|
Additional
Paid-In
Capital
|
Accumulated
Deficit
|
Accumulated
Other
Comprehensive
Income (Loss)
|
Total
Stockholders’
Equity
|
|||||||||||||||||||||||||||||||
Shares
|
Amount
|
Shares
|
Amount
|
|||||||||||||||||||||||||||||||||
Balance at January 1, 2020
|
92,613,015 | $ | 698,452 |
|
35,154,952 | $ | — | $ | 4,957 | $ | (182,122 | ) | $ | (28 | ) | $ | (177,193 | ) | ||||||||||||||||||
Net loss
|
— | — |
|
— | — | — | (52,237 | ) | — | (52,237 | ) | |||||||||||||||||||||||||
Other comprehensive loss
|
— | — |
|
— | — | — | — | 1,314 | 1,314 | |||||||||||||||||||||||||||
Issuance of redeemable convertible preferred stock, net of issuance costs of $640
|
3,639,608 | 69,860 |
|
— | — | — | — | — | — | |||||||||||||||||||||||||||
Issuance of common stock upon exercise of stock options
|
— | — |
|
91,934 | — | 64 | — | — | 64 | |||||||||||||||||||||||||||
Repurchases of common stock
|
— | — |
|
(54,132 | ) | — | (1 | ) | — | — | (1 | ) | ||||||||||||||||||||||||
Vesting of early exercised stock options
|
— | — |
|
— | — | 186 | — | — | 186 | |||||||||||||||||||||||||||
Stock-based compensation
|
— | — |
|
— | — | 2,665 | — | — | 2,665 | |||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Balance at June 30, 2020
|
96,252,623 | $ | 768,312 |
|
35,192,754 | $ | — | $ | 7,871 | $ | (234,359 | ) | $ | 1,286 | $ | (225,202 | ) | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended
June 30, |
||||||||
2021
|
2020
|
|||||||
Cash flows from operating activities
|
||||||||
Net loss
|
$ | (106,511 | ) | $ | (52,237 | ) | ||
Reconciliation of net loss to net cash used in operating activities:
|
||||||||
Depreciation and amortization expense
|
7,295 | 3,255 | ||||||
Non-cash
interest expense, and amortization of debt discount and issuance costs
|
1,789 | — | ||||||
Stock-based compensation expense
|
11,800 | 2,665 | ||||||
Other
non-cash
compensation expense
|
3,747 | — | ||||||
Write-off
of
in-process
research and development project
|
5,030 | — | ||||||
Net increase in equity method investment
|
(2,107 | ) | — | |||||
Net accretion and amortization of investments in marketable securities
|
2,530 | (508 | ) | |||||
Amortization of deferred costs
|
||||||||
Changes in operating assets and liabilities
|
||||||||
Other receivables
|
(1,682 | ) | (263 | ) | ||||
Prepaid expenses and other current assets
|
(1,052 | ) | (370 | ) | ||||
Other
non-current
assets
|
(124 | ) | (46 | ) | ||||
Accounts payable
|
84 | (489 | ) | |||||
Accrued expenses and other current liabilities
|
1,808 | 153 | ||||||
Deferred rent
|
(140 | ) | (98 | ) | ||||
|
|
|
|
|||||
Net cash used in operating activities
|
(77,533 | ) | (47,938 | ) | ||||
Cash flows from investing activities
|
||||||||
Purchase of marketable securities
|
(289,092 | ) | (456,964 | ) | ||||
Proceeds from sales of marketable securities
|
40,227 | — | ||||||
Proceeds from maturities of marketable securities
|
239,415 | 60,975 | ||||||
Purchases of property and equipment
|
(14,509 | ) | (13,546 | ) | ||||
Asset acquisition
|
(4,981 | ) | — | |||||
|
|
|
|
|||||
Net cash used in investing activities
|
(28,940 | ) | (409,535 | ) | ||||
Cash flows from financing activities
|
||||||||
Proceeds from issuance of Series C redeemable convertible preferred stock, net
|
— | 69,860 | ||||||
Proceeds from issuance of notes payable
|
— | 2,708 | ||||||
Proceeds from issuance of convertible notes payable
|
74,972 | — | ||||||
Proceeds from exercise of stock options and stock purchase rights
|
552 | 59 | ||||||
Repayments of tenant improvement loan
|
(119 | ) | (266 | ) | ||||
Proceeds from issuance common stock warrants
|
120 | — | ||||||
Payments on capital lease obligation
|
(435 | ) | (361 | ) | ||||
Payments for deferred offering costs
|
(1,621 | ) | — | |||||
|
|
|
|
|||||
Net cash provided by financing activities
|
73,469 | 72,000 | ||||||
Net change in cash, cash equivalents and restricted cash
|
(33,004 | ) | (385,473 | ) | ||||
Cash, cash equivalents and restricted cash, at the beginning of the period
|
78,030 | 507,869 | ||||||
|
|
|
|
|||||
Cash, cash equivalents and restricted cash, at the end of the period
|
$ | 45,026 | 122,396 | |||||
|
|
|
|
|||||
Reconciliation of cash, cash equivalents and restricted cash to consolidated balance sheets
|
||||||||
Cash and cash equivalents
|
$ | 44,264 | $ | 121,703 | ||||
Restricted cash
|
762 | 693 | ||||||
|
|
|
|
|||||
Cash, cash equivalents and restricted cash in consolidated balance sheets
|
$ | 45,026 | $ | 122,396 | ||||
|
|
|
|
|||||
Non-cash
investing activities
|
||||||||
Unpaid property and equipment purchases
|
$ | 1,011 | $ | 725 | ||||
Property and equipment purchased through capital leases
|
|
$
|
926
|
|
|
$
|
—
|
|
Uber Elevate acquisition in exchange for Series C redeemable convertible preferred stock (Note 4)
|
$ | 77,619 | $ | — |
• |
Level I — Inputs are unadjusted, quoted prices in active markets for identical assets or liabilities at the measurement date;
|
• |
Level II — Inputs are observable, unadjusted quoted prices in active markets for similar assets or liabilities, unadjusted quoted prices for identical or similar assets or liabilities in markets that are not active, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the related assets or liabilities; and
|
• |
Level III — Unobservable inputs that are significant to the measurement of the fair value of the assets or liabilities that are supported by little or no market data.
|
June 30, 2021
|
||||||||||||||||
Level 1
|
Level 2
|
Level 3
|
Total
|
|||||||||||||
Assets measured at fair value
|
||||||||||||||||
Money market funds
|
$ | 27,770 | $ | — | $ | — | $ | 27,770 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Cash equivalents
|
27,770 | — | — | 27,770 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Term deposits
|
— | 40,024 | — | 40,024 | ||||||||||||
Asset backed securities
|
— | 66,477 | — | 66,477 | ||||||||||||
Government debt securities
|
— | 79,735 | — | 79,735 | ||||||||||||
Corporate debt securities
|
— | 188,974 | — | 188,974 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Available-for-sale
|
— | 375,210 | — | 375,210 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total fair value of assets
|
$ | 27,770 | $ | 375,210 | $ | — | $ | 402,980 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Liabilities measured at fair value
|
||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Redeemable convertible preferred stock warrant liability
|
— | — | $ | 627 | 627 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total fair value of liabilities
|
$ | — | $ | — | $ | 627 | $ | 627 | ||||||||
|
|
|
|
|
|
|
|
December 31, 2020
|
||||||||||||||||
Level 1
|
Level 2
|
Level 3
|
Total
|
|||||||||||||
Assets measured at fair value
|
||||||||||||||||
Money market funds
|
$ | 74,049 | $ | — | $ | — | $ | 74,049 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Cash equivalents
|
74,049 | — | — | 74,049 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Asset backed securities
|
— | 52,022 | — | 52,022 | ||||||||||||
Government debt securities
|
— | 57,829 | — | 57,829 | ||||||||||||
Corporate debt securities
|
— | 258,736 | — | 258,736 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Marketable securities
|
— | 368,587 | — | 368,587 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total fair value of assets
|
$ | 74,049 | $ | 368,587 | $ | — | $ | 442,636 | ||||||||
|
|
|
|
|
|
|
|
June 30, 2021
|
||||||||||||||||
Adjusted
Basis
|
Unrealized
Gains
|
Unrealized
Losses
|
Recorded
Basis
|
|||||||||||||
Assets measured at fair value
|
||||||||||||||||
Term deposits
|
$ | 40,024 | $ | — | $ | — | $ | 40,024 | ||||||||
Asset backed securities
|
66,489 | 6 | (18 | ) | 66,477 | |||||||||||
Government debt securities
|
79,733 | 5 | (3 | ) | 79,735 | |||||||||||
Corporate debt securities
|
188,966 | 14 | (6 | ) | 188,974 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total
|
$ | 375,212 | $ | 25 | $ | (27 | ) | $ | 375,210 | |||||||
|
|
|
|
|
|
|
|
December 31, 2020
|
||||||||||||||||
Adjusted
Basis
|
Unrealized
Gains
|
Unrealized
Losses
|
Recorded
Basis
|
|||||||||||||
Asset backed securities
|
$ | 51,938 | $ | 84 | $ | — | $ | 52,022 | ||||||||
Government debt securities
|
57,826 | 3 | — | 57,829 | ||||||||||||
Corporate debt securities
|
258,502 | 234 | — | 258,736 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total
|
$ | 368,266 | $ | 321 | $ | — | $ | 368,587 | ||||||||
|
|
|
|
|
|
|
|
2021
|
||||
Fair value as of January 1
|
$ | — | ||
Initial fair value of the redeemable convertible preferred stock warrant liability
|
602 | |||
Change in fair value
|
25 | |||
|
|
|||
Fair value as of June 30
|
$ | 627 | ||
|
|
Series C redeemable convertible preferred stock (2,581,285 shares at $30.07 per share fair value)
|
$ | 77,619 | ||
Less: premium on Uber CPN
|
(465 | ) | ||
|
|
|||
Total consideration
|
$ | 77,154 | ||
|
|
|||
Consideration allocated to contractual agreements asset
|
$ | (54,944 | ) | |
|
|
|||
Consideration allocated to Uber Elevate
|
$ | 22,210 | ||
|
|
Goodwill
|
$ | 4,880 | ||
Automation Platform Software Technology
|
7,200 | |||
Multimodal Software Technology
|
4,900 | |||
Simulation Software Technology
|
4,600 | |||
Property and equipment
|
630 | |||
|
|
|||
Total purchase consideration
|
$ | 22,210 | ||
|
|
June 30,
2021 |
December 31,
2020
|
|||||||
Equipment
|
$ | 36,276 | $ | 29,229 | ||||
Computer software
|
7,292 | 5,992 | ||||||
Leasehold improvements
|
7,046 | 5,724 | ||||||
Molds and tooling
|
4,079 | 3,269 | ||||||
Vehicles
|
1,130 | 211 | ||||||
Furniture and fixtures
|
173 | 95 | ||||||
Construction in progress
|
5,049 | 3,741 | ||||||
|
|
|
|
|||||
Gross property and equipment
|
61,045 | 48,261 | ||||||
Accumulated depreciation and amortization
|
(19,493 | ) | (14,135 | ) | ||||
|
|
|
|
|||||
Property and equipment, net
|
$ | 41,552 | $ | 34,126 | ||||
|
|
|
|
June 30, 2021
|
December 31,
2020
|
|||||||
Automation Platform Software
|
$ | 7,200 | $ | — | ||||
Multimodal Software Technology
|
4,900 | — | ||||||
System Simulation Software Technology
|
4,600 | — | ||||||
|
|
|||||||
Gross intangible assets
|
16,700 | — | ||||||
|
|
|
|
|||||
Accumulated amortization
|
(1,921 | ) | — | |||||
|
|
|
|
|||||
Intangible assets, net
|
$ | 14,779 | $ | — | ||||
|
|
|
|
Fiscal Year
|
Amount
|
|||
2021 (remainder)
|
$ | 1,922 | ||
2022
|
3,843 | |||
2023
|
3,843 | |||
2024
|
3,006 | |||
2025
|
2,165 | |||
|
|
|||
$ | 14,779 | |||
|
|
June 30,
2021
|
December 31,
2020
|
|||||||
Prepaid equipment
|
$ | 3,892 | $ | 1,352 | ||||
Prepaid software
|
1,797 | 1,076 | ||||||
Prepaid taxes
|
721 | 243 | ||||||
Prepaid insurance
|
195 | 156 | ||||||
Other
|
508 | 205 | ||||||
|
|
|
|
|||||
Total
|
$ | 7,113 | $ | 3,032 | ||||
|
|
|
|
June 30,
2021
|
December 31,
2020
|
|||||||
Contractual agreements asset
|
$ | 54,944 | $ | — | ||||
Other
non-current
assets
|
386 | 262 | ||||||
|
|
|
|
|||||
Total
|
$ | 55,330 | $ | 262 | ||||
|
|
|
|
As of June 30, 2021
|
Amount
|
|||
2021 (remaining six months)
|
$ | 125 | ||
2022
|
265 | |||
2023
|
287 | |||
2024
|
310 | |||
2025
|
84 | |||
|
|
|||
Total payable amount
|
1,071 | |||
Less: current portion of tenant improvement loan
|
(254 | ) | ||
|
|
|||
Noncurrent portion of tenant improvement loan, net
|
$ | 817 | ||
|
|
As of June 30, 2021
|
Amount
|
|||
2021 (remaining six months)
|
$ | 2,607 | ||
2022
|
4,737 | |||
2023
|
4,126 | |||
2024
|
3,396 | |||
2025
|
720 | |||
2026 and thereafter
|
3,801 | |||
|
|
|||
Total minimum future lease payments, operating leases
|
$ | 19,387 | ||
|
|
As of June 30, 2021
|
Amount
|
|||
2021 (remaining six months)
|
564 | |||
2022
|
709 | |||
2023
|
248 | |||
2024
|
183 | |||
2025
|
110 | |||
2026 and thereafter
|
130 | |||
|
|
|||
Total payments
|
1,944 | |||
Less current portion
|
(415 | ) | ||
|
|
|||
Noncurrent portion
|
$ | 1,529 | ||
|
|
December 31, 2020
|
||||||||||||||||||||
Shares
Authorized
|
Share Issued
and
Outstanding
|
Original
Issue Price
|
Aggregate
Liquidation
Preference
|
Net
Carrying
Value
|
||||||||||||||||
(in thousands)
|
||||||||||||||||||||
Series
Seed-1
Preferred Stock
|
6,950,729 | 6,950,729 | $ | 0.6167 | $ | 4,287 | $ | 4,287 | ||||||||||||
12,298,893 | 12,298,893 | 0.6167 | 7,585 | 7,585 | ||||||||||||||||
Series A Preferred Stock
|
21,418,756 | 21,418,756 | 0.7594 | 16,265 | 16,040 | |||||||||||||||
Series B Preferred Stock
|
22,652,737 | 22,444,315 | 4.4383 | 99,615 | 99,398 | |||||||||||||||
Series C Preferred Stock
|
42,179,411 | 33,139,930 | 19.3702 | 641,927 | 641,002 | |||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total Convertible Preferred Stock
|
105,500,526 | 96,252,623 | $ | 769,679 | $ | 768,312 | ||||||||||||||
|
|
|
|
|
|
|
|
June 30,
2021
|
December 31,
2020
|
|||||||
Stock options and RSU’s outstanding under 2016 Stock Plan
|
9,542,094 | 7,108,899 | ||||||
Remaining shares available for future issuance under the 2016 plan
|
533,647 | 144,375 | ||||||
Redeemable convertible preferred stock
|
99,608,293 | 96,252,623 | ||||||
Redeemable convertible preferred stock warrants
|
19,857 | — | ||||||
Common stock warrants
|
219,402 | 219,402 | ||||||
|
|
|
|
|||||
Total common stock reserved
|
109,923,293 | 103,725,299 | ||||||
|
|
|
|
Six months ended
June 30, |
||||||||
2021
|
2020
|
|||||||
Research and development expenses
|
$ | 7,939 | $ | 2,350 | ||||
Selling, general and administrative expenses
|
3,861 | 315 | ||||||
|
|
|
|
|||||
Total stock-based compensation expense
|
$ | 11,800 | $ | 2,665 | ||||
|
|
|
|
Six Months Ended June 30,
|
||||||||
2021
|
2020
|
|||||||
Numerator:
|
||||||||
Net loss attributable to common stockholders
|
$ | (106,511 | ) | $ | (52,237 | ) | ||
|
|
|
|
|||||
Denominator:
|
||||||||
Weighted-average shares outstanding
|
32,239,448 | 29,040,833 | ||||||
|
|
|
|
|||||
Net loss per share attributable to common stockholders, basic and diluted
|
$ | (3.30 | ) | $ | (1.80 | ) | ||
|
|
|
|
As at June 30,
|
||||||||
2021
|
2020
|
|||||||
Redeemable convertible preferred stock
|
99,608,293 | 96,252,623 | ||||||
Common stock warrants
|
219,402 | 219,402 | ||||||
Unvested restricted stock awards
|
146,250 | 170,250 | ||||||
Unvested restricted stock units
|
2,966,408 | — | ||||||
Options to purchase common stock
|
6,575,686 | 5,268,106 | ||||||
Series C redeemable convertible preferred stock warrants
|
19,857 | — | ||||||
|
|
|
|
|||||
Total
|
109,535,896 | 101,910,381 | ||||||
|
|
|
|
Securities and Exchange Commission registration fee
|
$ | 623,971 | ||
Accounting fees and expenses
|
100,000 | |||
Legal fees and expenses
|
200,000 | |||
Financial printing and miscellaneous expenses
|
276,029 | |||
Total
|
$ | 1,200,000 |
• |
On September 21, 2020, we issued 11,533,333 private placement warrants to our Sponsor concurrently with the closing of our IPO; and
|
• |
On August 10, 2021 we issued 83,500,000 shares of common stock to certain qualified institutional buyers and accredited investors that agreed to purchase such shares in connection with the Business Combination for aggregate consideration of $835,500,000.
|
† |
The annexes, schedules, and certain exhibits to this Exhibit have been omitted pursuant to Item 601(b)(2) of Regulation
S-K.
The Registrant hereby agrees to furnish supplementally a copy of any omitted annex, schedule or exhibit to the SEC upon request.
|
+ |
Indicates a management contract or compensatory plan.
|
# |
Certain portions of this exhibit (indicated by “[***]”) have been omitted pursuant to Regulation
S-K,
Item 601(b)(10).
|
Joby Aviation, Inc.
|
||
By: |
|
|
Name: JoeBen Bevirt | ||
Title: Chief Executive Officer |
Signature
|
Title
|
|
JoeBen Bevirt
|
Chief Executive Officer and Chief Architect
(Principal Executive Officer)
|
|
Matthew Field
|
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
|
|
Aicha Evans
|
Director | |
Halimah DeLaine Prado
|
Director | |
Reid Hoffman
|
Director | |
James Kuffner
|
Director | |
Dipender Saluja
|
Director | |
Paul Sciarra
|
Director | |
Laura Wright
|
Director |
Exhibit 5.1
Re: Joby Aviation, Inc. Registration Statement on Form S-1
Ladies and Gentlemen:
We have acted as special counsel to Joby Aviation, Inc., a Delaware corporation (the Company), in connection with its filing on the date hereof with the Securities and Exchange Commission (the Commission) of a registration statement on Form S-1 (the Registration Statement) under the Securities Act of 1933, as amended (the Act), relating to the registration of (i) the offer and sale from time to time of (a) 511,219,042 outstanding shares (the Resale Shares) of common stock, par value $0.0001 per share (the common stock), of the Company, in each case, by the selling securityholders named in the Registration Statement and (b) 11,533,333 warrants (the Resale Warrants) to acquire shares of common stock, in each case, by the selling securityholders named in the Registration Statement, and (ii) the issuance by the Company of up to 28,783,333 shares of common stock (the Warrant Shares) upon the exercise of warrants to purchase shares of common stock (the Warrants).
This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related prospectus or prospectus supplement (collectively, the Prospectus) other than as expressly stated herein with respect to the issue of Resale Shares, the Resale Warrants, and the Warrant Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to the General Corporation Law of the State of Delaware (the DGCL) and, with respect to the opinions set forth in paragraph 2 below, the internal laws of the State of New York, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or, in the case of Delaware, any other laws, or as to any matters of municipal law or the laws of any local agencies within any state.
August 16, 2021
Page 2
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof:
1. |
The Resale Shares have been duly authorized by all necessary corporate action of the Company and are validly issued, fully paid and nonassessable. |
2. |
The Resale Warrants are the legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. |
3. |
When the Warrant Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name of or on behalf of the Warrant holders and have been issued by the Company against payment therefor (not less than par value) in the circumstances contemplated by the Warrants, the Warrant Shares will have been duly authorized by all necessary corporate action of the Company and will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL. |
Our opinions set forth in numbered paragraph 2 are subject to: (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors; (ii) the effect of general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the court before which a proceeding is brought; (iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy; and (iv) we express no opinion as to (a) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty, (b) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies, or judicial relief, (c) waivers of rights or defenses, (d) any provision requiring the payment of attorneys fees, where such payment is contrary to law or public policy, (e) the creation, validity, attachment, perfection, or priority of any lien or security interest, (f) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights, (g) waivers of broadly or vaguely stated rights, (h) provisions for exclusivity, election or cumulation of rights or remedies, (i) provisions authorizing or validating conclusive or discretionary determinations, (j) grants of setoff rights, (k) proxies, powers and trusts, (l) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property, and (m) the severability, if invalid, of provisions to the foregoing effect.
With your consent, we have assumed (a) that the Warrants and the warrant agreement, dated September 16, 2020, between the Company and Continental Stock Transfer & Trust Company, as warrant agent, relating to the Warrants, have been duly authorized, executed and delivered by the parties thereto other than the Company, (b) that the Warrants and the warrant
August 16, 2021
Page 3
agreement constitute or will constitute legally valid and binding obligations of the parties thereto other than the Company, enforceable against each of them in accordance with their respective terms and (c) that the status of the Warrants as legally valid and binding obligations of the parties will not be affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders or (iii) failures to obtain required consents, approvals or authorizations from, or to make required registrations, declarations or filings with, governmental authorities.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm contained in the Prospectus under the heading Legal Matters. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Latham & Watkins LLP
Exhibit 10.11
INDEMNIFICATION AND ADVANCEMENT AGREEMENT
This Indemnification and Advancement Agreement (Agreement) is made as of by and between Joby Aviation, Inc., a Delaware corporation (the Company), and , [a member of the Board of Directors/an officer/an employee/an agent/a fiduciary] of the Company (Indemnitee). This Agreement supersedes and replaces any and all previous Agreements between the Company and Indemnitee covering indemnification and advancement.
RECITALS
WHEREAS, the Board of Directors of the Company (the Board) believes that highly competent persons have become more reluctant to serve publicly-held corporations as directors, officers, or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification and advancement of expenses against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation;
WHEREAS, the Board has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers, and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The Bylaws and Certificate of Incorporation of the Company require indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the DGCL). The Bylaws, Certificate of Incorporation, and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification and advancement of expenses;
WHEREAS, the uncertainties relating to such insurance, to indemnification, and to advancement of expenses may increase the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company and its stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws, Certificate of Incorporation and any resolutions adopted pursuant thereto, and is not a substitute therefor, nor diminishes or abrogates any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee does not regard the protection available under the Bylaws, Certificate of Incorporation, DGCL and insurance as adequate in the present circumstances, and may not be willing to serve or continue to serve as an officer or director without adequate additional protection, and the Company desires Indemnitee to serve or continue to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that Indemnitee be so indemnified and be advanced expenses.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
Section 1. Services to the Company. Indemnitee agrees to serve as [a/an] [director/officer/employee/agent/fiduciary] of the Company. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law). This Agreement does not create any obligation on the Company to continue Indemnitee in such position and is not an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.
Section 2. Definitions. As used in this Agreement:
(a) Agent means any person who is authorized by the Company or an Enterprise to act for or represent the interests of the Company or an Enterprise, respectively.
(b) A Change in Control occurs upon the earliest to occur after the date of this Agreement of any of the following events:
i. Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Companys then outstanding securities unless the change in relative beneficial ownership of the Companys securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors;
ii. Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 2(b)(i), 2(b)(iii) or 2(b)(iv)) whose election by the Board or nomination for election by the Companys stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board;
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iii. Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
iv. Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Companys assets; and
v. Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement.
vi. For purposes of this Section 2(b), the following terms have the following meanings:
1 |
Exchange Act means the Securities Exchange Act of 1934, as amended from time to time. |
2 |
Person has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
3 |
Beneficial Owner has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
(c) Corporate Status describes the status of a person who is or was acting as a director, officer, employee, fiduciary, or Agent of the Company or an Enterprise.
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(d) Disinterested Director means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(e) Enterprise means any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity for which Indemnitee is or was serving at the request of the Company as a director, officer, employee, or Agent.
(f) Expenses includes all reasonable attorneys fees, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and penalties, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (ii) for purposes of Section 14(d) only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitees rights under this Agreement, by litigation or otherwise. The parties agree that for the purposes of any advancement of Expenses for which Indemnitee has made written demand to the Company in accordance with this Agreement, all Expenses included in such demand that are certified by affidavit of Indemnitees counsel as being reasonable in the good faith judgment of such counsel will be presumed conclusively to be reasonable. Expenses, however, do not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(g) Independent Counsel means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term Independent Counsel does not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitees rights under this Agreement.
(h) The term Proceeding includes any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, legislative, or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise by reason of Indemnitees Corporate Status or by reason of any action taken by Indemnitee (or a failure to take action by Indemnitee) or of any action (or failure to act) on Indemnitees part while acting pursuant to Indemnitees Corporate Status, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which
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indemnification, reimbursement, or advancement of Expenses can be provided under this Agreement. A Proceeding also includes a situation the Indemnitee believes in good faith may lead to or culminate in the institution of a Proceeding.
Section 3. Indemnity in Third-Party Proceedings. The Company will indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding had no reasonable cause to believe that Indemnitees conduct was unlawful.
Section 4. Indemnity in Proceedings by or in the Right of the Company. The Company will indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. The Company will not indemnify Indemnitee for Expenses under this Section 4 related to any claim, issue or matter in a Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification.
Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To the fullest extent permitted by applicable law, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with any Proceeding the extent that Indemnitee is successful, on the merits or otherwise. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by law. For purposes of this Section 5 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, will be deemed to be a successful result as to such claim, issue or matter.
Section 6. Indemnification For Expenses of a Witness. To the fullest extent permitted by applicable law, the Company will indemnify Indemnitee against all Expenses actually and
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reasonably incurred by Indemnitee or on Indemnitees behalf in connection with any Proceeding to which Indemnitee is not a party but to which Indemnitee is a witness, deponent, interviewee, or otherwise asked to participate.
Section 7. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company will indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
Section 8. Additional Indemnification. Notwithstanding any limitation in Sections 3, 4, or 5, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law (including but not limited to, the DGCL and any amendments to or replacements of the DGCL adopted after the date of this Agreement that expand the Companys ability to indemnify its officers and directors) if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor).
Section 9. Exclusions. Notwithstanding any provision in this Agreement, the Company is not obligated under this Agreement to make any indemnification payment to Indemnitee in connection with any Proceeding:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except to the extent provided in Section 16(b) and except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or
(b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law, (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or
(c) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitees rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.
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Section 10. Advances of Expenses.
(a) The Company will advance, to the extent not prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding (or any part of any Proceeding) not initiated by Indemnitee or any Proceeding (or any part of any Proceeding) initiated by Indemnitee if (i) the Proceeding or part of any Proceeding is to enforce Indemnitees rights to obtain indemnification or advancement of Expenses from the Company or Enterprise, including a proceeding initiated pursuant to Section 14 or (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation. The Company will advance the Expenses within thirty (30) days after the receipt by the Company of a statement or statements requesting such advances from time to time, whether prior to or after final disposition of any Proceeding.
(b) Advances will be unsecured and interest free. Indemnitee undertakes to repay the amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company, thus Indemnitee qualifies for advances upon the execution of this Agreement and delivery to the Company. No other form of undertaking is required other than the execution of this Agreement. The Company will make advances without regard to Indemnitees ability to repay the Expenses and without regard to Indemnitees ultimate entitlement to indemnification under the other provisions of this Agreement.
Section 11. Procedure for Notification of Claim for Indemnification or Advancement.
(a) Indemnitee will notify the Company in writing of any Proceeding with respect to which Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof. Indemnitee will include in the written notification to the Company a description of the nature of the Proceeding and the facts underlying the Proceeding and provide such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding. Indemnitees failure to notify the Company will not relieve the Company from any obligation it may have to Indemnitee under this Agreement, and any delay in so notifying the Company will not constitute a waiver by Indemnitee of any rights under this Agreement. The Secretary of the Company will, promptly upon receipt of such a request for indemnification or advancement, advise the Board in writing that Indemnitee has requested indemnification or advancement.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
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Section 12. Procedure Upon Application for Indemnification.
(a) Unless a Change of Control has occurred, the determination of Indemnitees entitlement to indemnification will be made:
i. by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
ii. by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
iii. if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by written opinion provided by Independent Counsel selected by the Board; or
iv. if so directed by the Board, by the stockholders of the Company.
(b) If a Change in Control has occurred, the determination of Indemnitees entitlement to indemnification will be made by written opinion provided by Independent Counsel selected by Indemnitee (unless Indemnitee requests such selection be made by the Board)
(c) The party selecting Independent Counsel pursuant to subsection (a)(iii) or (b) of this Section 12 will provide written notice of the selection to the other party. The notified party may, within ten (10) days after receiving written notice of the selection of Independent Counsel, deliver to the selecting party a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of Independent Counsel as defined in Section 2 of this Agreement, and the objection will set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected will act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has determined that such objection is without merit. If, within thirty (30) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 11(a) hereof and the final disposition of the Proceeding, Independent Counsel has not been selected or, if selected, any objection to has not been resolved, either the Company or Indemnitee may petition the Delaware Court for the appointment as Independent Counsel of a person selected by such court or by such other person as such court designates. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel will be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(d) Indemnitee will cooperate with the person, persons or entity making the determination with respect to Indemnitees entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. The Company will advance and pay any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making the indemnification determination irrespective of the determination as to Indemnitees entitlement to indemnification and the Company hereby indemnifies and agrees to hold Indemnitee
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harmless therefrom. The Company promptly will advise Indemnitee in writing of the determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied and providing a copy of any written opinion provided to the Board by Independent Counsel.
(e) If it is determined that Indemnitee is entitled to indemnification, the Company will make payment to Indemnitee within thirty (30) days after such determination.
Section 13. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination will, to the fullest extent not prohibited by law, presume Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 11(a) of this Agreement, and the Company will, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, will be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(b) If the determination of the Indemnitees entitlement to indemnification has not made pursuant to Section 12 within sixty (60) days after the later of (i) receipt by the Company of Indemnitees request for indemnification pursuant to Section 11(a) and (ii) the final disposition of the Proceeding for which Indemnitee requested Indemnification (the Determination Period), the requisite determination of entitlement to indemnification will, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee will be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitees statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law. The Determination Period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, the Determination Period may be extended an additional fifteen (15) days if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a)(iv) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, will not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitees conduct was unlawful.
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(d) For purposes of any determination of good faith, Indemnitee will be deemed to have acted in good faith if Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, or on the advice of legal counsel for the Company, its subsidiaries, or an Enterprise or on information or records given or reports made to the Company or an Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of the Company, its subsidiaries, or an Enterprise. Further, Indemnitee will be deemed to have acted in a manner not opposed to the best interests of the Company, as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 13(d) is not exclusive and does not limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise may not be imputed to Indemnitee for purposes of determining Indemnitees right to indemnification under this Agreement.
Section 14. Remedies of Indemnitee.
(a) Indemnitee may commence litigation against the Company in the Delaware Court of Chancery to obtain indemnification or advancement of Expenses provided by this Agreement in the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) the Company does not advance Expenses pursuant to Section 10 of this Agreement, (iii) the determination of entitlement to indemnification is not made pursuant to Section 12 of this Agreement within the Determination Period, (iv) the Company does not indemnify Indemnitee pursuant to Section 5 or 6 or the second to last sentence of Section 12(d) of this Agreement within thirty (30) days after receipt by the Company of a written request therefor, (v) the Company does not indemnify Indemnitee pursuant to Section 3, 4, 7, or 8 of this Agreement within thirty (30) days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder. Alternatively, Indemnitee, at Indemnitees option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee must commence such Proceeding seeking an adjudication or an award in arbitration within one hundred and eighty (180) days following the date on which Indemnitee first has the right to commence such Proceeding pursuant to this Section 14(a); provided, however, that the foregoing clause does not apply in respect of a Proceeding brought by Indemnitee to enforce Indemnitees rights under Section 5 of this Agreement. The Company will not oppose Indemnitees right to seek any such adjudication or award in arbitration.
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(b) If a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 will be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee may not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 14 the Company will have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be, and will not introduce evidence of the determination made pursuant to Section 12 of this Agreement.
(c) If a determination is made pursuant to Section 12 of this Agreement that Indemnitee is entitled to indemnification, the Company will be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitees statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) The Company is, to the fullest extent not prohibited by law, precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and will stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.
(e) It is the intent of the Company that, to the fullest extent permitted by law, the Indemnitee not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Indemnitees rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. The Company, to the fullest extent permitted by law, will (within thirty (30) days after receipt by the Company of a written request therefor) advance to Indemnitee such Expenses which are incurred by Indemnitee in connection with any action concerning this Agreement, Indemnitees right to indemnification or advancement of Expenses from the Company, or concerning any directors and officers liability insurance policies maintained by the Company, and will indemnify Indemnitee against any and all such Expenses unless the court determines that each of the Indemnitees claims in such action were made in bad faith or were frivolous or are prohibited by law.
Section 15. Non-exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The indemnification and advancement of Expenses provided by this Agreement are not exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. The indemnification and advancement of Expenses provided by this Agreement may not be limited or restricted by any amendment, alteration or repeal of this Agreement in any way with respect to any action taken or omitted by
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Indemnitee in Indemnitees Corporate Status occurring prior to any amendment, alteration or repeal of this Agreement. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Bylaws, Certificate of Incorporation, or this Agreement, it is the intent of the parties hereto that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy is cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or employment of any other right or remedy.
(b) The Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of Expenses and/or insurance provided by one or more other Persons with whom or which Indemnitee may be associated. The relationship between the Company and such other Persons, other than an Enterprise, with respect to the Indemnitees rights to indemnification, advancement of Expenses, and insurance is described by this subsection, subject to the provisions of subsection (d) of this Section 16 with respect to a Proceeding concerning Indemnitees Corporate Status with an Enterprise.
i. The Company hereby acknowledges and agrees:
1) the Company is the indemnitor of first resort with respect to any request for indemnification or advancement of Expenses made pursuant to this Agreement concerning any Proceeding;
2) the Company is primarily liable for all indemnification and indemnification or advancement of Expenses obligations for any Proceeding, whether created by law, organizational or constituent documents, contract (including this Agreement) or otherwise;
3) any obligation of any other Persons with whom or which Indemnitee may be associated to indemnify Indemnitee and/or advance Expenses to Indemnitee in respect of any proceeding are secondary to the obligations of the Companys obligations;
4) the Company will indemnify Indemnitee and advance Expenses to Indemnitee hereunder to the fullest extent provided herein without regard to any rights Indemnitee may have against any other Person with whom or which Indemnitee may be associated or insurer of any such Person; and
ii. the Company irrevocably waives, relinquishes and releases (A) any other Person with whom or which Indemnitee may be associated from any claim of contribution, subrogation, reimbursement, exoneration or indemnification, or any other recovery of any kind in respect of amounts paid by the Company to Indemnitee pursuant to this Agreement and (B) any right to participate in any claim or remedy of Indemnitee against any Person whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right.
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iii. In the event any other Person with whom or which Indemnitee may be associated or their insurers advances or extinguishes any liability or loss for Indemnitee, the payor has a right of subrogation against the Company or its insurers for all amounts so paid which would otherwise be payable by the Company or its insurers under this Agreement. In no event will payment by any other Person with whom or which Indemnitee may be associated or their insurers affect the obligations of the Company hereunder or shift primary liability for the Companys obligation to indemnify or advance of Expenses to any other Person with whom or which Indemnitee may be associated.
iv. Any indemnification or advancement of Expenses provided by any other Person with whom or which Indemnitee may be associated is specifically in excess over the Companys obligation to indemnify and advance Expenses or any valid and collectible insurance (including but not limited to any malpractice insurance or professional errors and omissions insurance) provided by the Company.
(c) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents of the Company, the Company will obtain a policy or policies covering Indemnitee to the maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies, including coverage in the event the Company does not or cannot, for any reason, indemnify or advance Expenses to Indemnitee as required by this Agreement. If, at the time of the receipt of a notice of a claim pursuant to this Agreement, the Company has director and officer liability insurance in effect, the Company will give prompt notice of such claim or of the commencement of a Proceeding, as the case may be, to the insurers in accordance with the procedures set forth in the respective policies. The Company will thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. Indemnitee agrees to assist the Company efforts to cause the insurers to pay such amounts and will comply with the terms of such policies, including selection of approved panel counsel, if required.
(d) The Companys obligation to indemnify or advance Expenses hereunder to Indemnitee for any Proceeding concerning Indemnitees Corporate Status with an Enterprise will be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Enterprise. The Company and Indemnitee intend that any such Enterprise (and its insurers) be the indemnitor of first resort with respect to indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitees Corporate Status with such Enterprise. The Companys obligation to indemnify and advance Expenses to Indemnitee is secondary to the obligations the Enterprise or its insurers owe to Indemnitee. Indemnitee agrees to take all reasonably necessary and desirable action to obtain from an Enterprise indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitees Corporate Status with such Enterprise.
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(e) In the event of any payment made by the Company under this Agreement, the Company will be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee from any Enterprise or insurance carrier. Indemnitee will execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
Section 16. Duration of Agreement. This Agreement continues until and terminates upon the later of: (a) ten (10) years after the date that Indemnitee ceases to have a Corporate Status or (b) one (1) year after the final termination of any Proceeding then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement relating thereto. The indemnification and advancement of Expenses rights provided by or granted pursuant to this Agreement are binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or of any other Enterprise, and inure to the benefit of Indemnitee and Indemnitees spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.
Section 17. Severability. If any provision or provisions of this Agreement is held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will not in any way be affected or impaired thereby and remain enforceable to the fullest extent permitted by law; (b) such provision or provisions will be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will be construed so as to give effect to the intent manifested thereby.
Section 18. Interpretation. Any ambiguity in the terms of this Agreement will be resolved in favor of Indemnitee and in a manner to provide the maximum indemnification and advancement of Expenses permitted by law. The Company and Indemnitee intend that this Agreement provide to the fullest extent permitted by law for indemnification and advancement in excess of that expressly provided, without limitation, by the Certificate of Incorporation, the Bylaws, vote of the Company stockholders or disinterested directors, or applicable law.
Section 19. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving or continuing to serve as a director or officer of the Company.
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(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation, the Bylaws and applicable law, and is not a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
Section 20. Modification and Waiver. No supplement, modification or amendment of this Agreement is binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement will be deemed or constitutes a waiver of any other provisions of this Agreement nor will any waiver constitute a continuing waiver.
Section 21. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company does not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise.
Section 22. Notices. All notices, requests, demands and other communications under this Agreement will be in writing and will be deemed to have been duly given if (a) delivered by hand to the other party, (b) sent by reputable overnight courier to the other party or (c) sent by facsimile transmission or electronic mail, with receipt of oral confirmation that such communication has been received:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee provides to the Company.
(b) If to the Company to:
Joby Aviation, Inc.
Attn: General Counsel
2155 Delaware Ave., Ste 225
Santa Cruz, CA 95060
With a courtesy copy which shall not constitute notice sent to: legal@jobyaviation.com
or to any other address as may have been furnished to Indemnitee by the Company.
Section 23. Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, will contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in
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light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
Section 24. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties are governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or Proceeding arising out of or in connection with this Agreement may be brought only in the Delaware Court of Chancery and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or Proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or Proceeding in the Delaware Court, and (iv) waive, and agree not to plead or to make, any claim that any such action or Proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
Section 25. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which will for all purposes be deemed to be an original but all of which together constitutes one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.
Section 26. Headings. The headings of this Agreement are inserted for convenience only and do not constitute part of this Agreement or affect the construction thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.
COMPANY. | INDEMNITEE | |||||
By: | ||||||
Name: | Name: | |||||
Office: | Address: | |||||
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Exhibit 10.12
JOBY AVIATION, INC.
2021 INCENTIVE AWARD PLAN
ARTICLE I.
PURPOSE
The Plans purpose is to enhance the Companys ability to attract, retain and motivate persons who make (or are expected to make) important contributions to the Company by providing these individuals with equity ownership opportunities.
ARTICLE II.
DEFINITIONS
As used in the Plan, the following words and phrases have the meanings specified below, unless the context clearly indicates otherwise:
2.1 Administrator means the Board or a Committee to the extent that the Boards powers or authority under the Plan have been delegated to such Committee. With reference to the Boards or a Committees powers or authority under the Plan that have been delegated to one or more officers pursuant to Section 4.2, the term Administrator shall refer to such officer(s) unless and until such delegation has been revoked.
2.2 Applicable Law means any applicable law, including without limitation: (a) provisions of the Code, the Securities Act, the Exchange Act and any rules or regulations thereunder; (b) corporate, securities, tax or other laws, statutes, rules, requirements or regulations, whether federal, state, local or foreign; and (c) rules of any securities exchange or automated quotation system on which the Shares are listed, quoted or traded.
2.3 Award means an Option, Stock Appreciation Right, Restricted Stock award, Restricted Stock Unit award, Performance Bonus Award, Performance Stock Unit award, Dividend Equivalents award or Other Stock or Cash Based Award granted to a Participant under the Plan.
2.4 Award Agreement means an agreement evidencing an Award, which may be written or electronic, that contains such terms and conditions as the Administrator determines, consistent with and subject to the terms and conditions of the Plan.
2.5 Board means the Board of Directors of the Company.
2.6 Cause shall have the meaning ascribed to such term, or term of similar effect, in any offer letter, employment, severance or similar agreement, including any Award Agreement, between the Participant and the Company; provided, that in the absence of an offer letter, employment, severance or similar agreement containing such definition, Cause means, with respect to a Participant, the occurrence of any of the following: (a) an act of dishonesty made by the Participant in connection with the Participants responsibilities as a Service Provider; (b) the Participants conviction of, or plea of nolo contendere to, a felony or any crime involving fraud, embezzlement or any other act of moral turpitude, or a material violation of federal or state law by the Participant that the Administrator reasonably determines has had or will have a material detrimental effect on the Companys reputation or business; (c) the Participants gross misconduct; (d) the Participants willful and material unauthorized use or disclosure of any proprietary information or trade secrets of the Company or any other party to whom the Participant owes an obligation of nondisclosure as a result of the Participants relationship with the Company; (e) the Participants willful breach of any material obligations under any written agreement or covenant with the Company; or (f) the
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Participants continued substantial failure to perform the Participants duties as a Service Provider (other than as a result of the Participants physical or mental incapacity) after the Participant has received a written demand for performance that specifically sets forth the factual basis for the determination that the Participant has not substantially performed the Participants duties and has failed to cure such non-performance to the Administrators reasonable satisfaction within 30 business days after receiving such notice. For purposes of this definition, no act or failure to act shall be considered willful unless it is done in bad faith and without reasonable intent that the act or failure to act was in the best interest of the Company or required by law. Any act, or failure to act, based upon authority or instructions given to the Participant pursuant to a direct instruction from the Companys chief executive officer or based on the advice of counsel for the Company will be conclusively presumed to be done or omitted to be done by the Participant in good faith and in the best interest of the Company.
2.7 Change in Control means any of the following:
(a) The consummation of 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 Companys securities possessing more than 50% of the total combined voting power of the Companys 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 clauses (c)(i), (c)(ii) and (c)(iii) of this definition; 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);
(b) The Incumbent Directors cease for any reason to constitute a majority of the Board;
(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 Companys 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:
(i) which results in the Companys 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 Companys 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 Entitys outstanding voting securities immediately after the transaction;
(ii) after which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (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
(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 Boards approval of the execution of the initial agreement providing for such transaction; or
(d) The completion of a liquidation or dissolution of the Company.
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Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any Award (or any portion of an Award) that provides for the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the transaction or event described in subsection (a), (b), (c) or (d) of this definition with respect to such Award (or portion thereof) shall only constitute a Change in Control for purposes of the payment timing of such Award if such transaction also constitutes a change in control event, as defined in Treasury Regulation Section 1.409A-3(i)(5).
The Administrator shall have full and final authority, which shall be exercised in its sole discretion, to determine conclusively whether a Change in Control has occurred pursuant to the above definition, the date of such Change in Control and any incidental matters relating thereto; provided that any exercise of authority in conjunction with a determination of whether a Change in Control is a change in control event as defined in Treasury Regulation Section 1.409A-3(i)(5) shall be consistent with such regulation.
2.8 Code means the U.S. Internal Revenue Code of 1986, as amended, and all regulations, guidance, compliance programs and other interpretative authority issued thereunder.
2.9 Committee means one or more committees or subcommittees of the Board, which may include one or more Company directors or executive officers, to the extent permitted by Applicable Law. To the extent required to comply with the provisions of Rule 16b-3, it is intended that each member of the Committee will be, at the time the Committee takes any action with respect to an Award that is subject to Rule 16b-3, a non-employee director within the meaning of Rule 16b-3; however, a Committee members failure to qualify as a non-employee director within the meaning of Rule 16b-3 will not invalidate any Award granted by the Committee that is otherwise validly granted under the Plan.
2.10 Common Stock means the common stock of the Company.
2.11 Company means Joby Aviation, Inc., a Delaware corporation, or any successor.
2.12 Consultant means any person, including any adviser, engaged by the Company or a Subsidiary to render services to such entity if the consultant or adviser: (i) renders bona fide services to the Company or a Subsidiary; (ii) renders services not in connection with the offer or sale of securities in a capital-raising transaction and does not directly or indirectly promote or maintain a market for the Companys securities; and (iii) is a natural person.
2.13 Designated Beneficiary means, if permitted by the Company, the beneficiary or beneficiaries the Participant designates, in a manner the Company determines, to receive amounts due or exercise the Participants rights if the Participant dies. Without a Participants effective designation, Designated Beneficiary will mean the Participants estate or legal heirs.
2.14 Director means a Board member.
2.15 Disability means a permanent and total disability under Section 22(e)(3) of the Code.
2.16 Dividend Equivalents means a right granted to a Participant to receive the equivalent value (in cash or Shares) of dividends paid on a specified number of Shares. Such Dividend Equivalent shall be converted to cash or additional Shares, or a combination of cash and Shares, by such formula and at such time and subject to such limitations as may be determined by the Administrator.
2.17 DRO means a domestic relations order as defined by the Code or Title I of the Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder.
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2.18 Effective Date has the meaning set forth in Section 11.3.
2.19 Employee means any employee of the Company or any of its Subsidiaries.
2.20 Equity Restructuring means a nonreciprocal transaction between the Company and its stockholders, such as a stock dividend, stock split (including a reverse stock split), spin-off or recapitalization through a large, nonrecurring cash dividend, that affects the number or kind of Shares (or other Company securities) or the share price of Common Stock (or other Company securities) and causes a change in the per share value of the Common Stock underlying outstanding Awards.
2.21 Exchange Act means the U.S. Securities Exchange Act of 1934, as amended, and all regulations, guidance and other interpretative authority issued thereunder.
2.22 Fair Market Value means, as of any date, the value of a Share determined as follows: (i) if the Common Stock is listed on any established stock exchange, the value of a Share will be the closing sales price for a Share as quoted on such exchange for such date, or if no sale occurred on such date, the last day preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; (ii) if the Common Stock is not listed on an established stock exchange but is quoted on a national market or other quotation system, the value of a Share will be the closing sales price for a Share on such date, or if no sales occurred on such date, then on the last date preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; or (iii) if the Common Stock is not listed on any established stock exchange or quoted on a national market or other quotation system, the value established by the Administrator in its sole discretion.
2.23 Good Reason shall have the meaning ascribed to such term, or term of similar effect, in any offer letter, employment, severance or similar agreement, including any Award Agreement, between the Participant and the Company; provided, that in the absence of an offer letter, employment, severance or similar agreement containing such definition, Good Reason means the occurrence of one or more of the following without the Participants consent: (i) a material reduction in the Participants base compensation, or (ii) a relocation of the principal place at which the Participant must perform services by more than 50 miles. In order to establish Good Reason, the Participant must provide the Administrator with notice of the event giving rise to Good Reason within 30 days of the occurrence of such event, the event shall remain uncured 30 days thereafter and the Participant must actually terminate services within 30 days following the end of such cure period.
2.24 Greater Than 10% Stockholder means an individual then owning (within the meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of stock of the Company or any parent corporation or subsidiary corporation of the Company, as determined in accordance with in Section 424(e) and (f) of the Code, respectively.
2.25 Incentive Stock Option means an Option that meets the requirements to qualify as an incentive stock option as defined in Section 422 of the Code.
2.26 Incumbent Directors means, for any period of 12 consecutive months, individuals who, at the beginning of such period, constitute the Board together with any new Director(s) (other than a Director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in clause (a) or (c) of the Change in Control definition) whose election or nomination for election to the Board was approved by a vote of at least a majority (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for Director without objection to such nomination) of the Directors then still in office who either were Directors at the beginning of the 12-month period or whose election or nomination for election was previously so approved. No individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest with respect to Directors or as a result of any other actual or threatened solicitation of proxies by or on behalf of any person other than the Board shall be an Incumbent Director.
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2.27 Non-Employee Director means a Director who is not an Employee.
2.28 Nonqualified Stock Option means an Option that is not an Incentive Stock Option.
2.29 Option means a right granted under Article VI to purchase a specified number of Shares at a specified price per Share during a specified time period. An Option may be either an Incentive Stock Option or a Nonqualified Stock Option.
2.30 Other Stock or Cash Based Awards means cash awards, awards of Shares, and other awards valued wholly or partially by referring to, or are otherwise based on, Shares or other property.
2.31 Overall Share Limit means the sum of (i) 66,535,304 Shares; (ii) any Shares that are subject to Prior Plan Awards that become available for issuance under the Plan pursuant to Article V; and (iii) an annual increase on the first day of each fiscal year beginning in 2022 and ending in 2031, equal to the lesser of (A) 4% of the Shares outstanding on the last day of the immediately preceding fiscal year and (B) such smaller number of Shares as determined by the Board or the Committee.
2.32 Participant means a Service Provider who has been granted an Award.
2.33 Performance Bonus Award has the meaning set forth in Section 8.3.
2.34 Performance Stock Unit means a right granted to a Participant pursuant to Section 8.1 and subject to Section 8.2, to receive Shares, the payment of which is contingent upon achieving certain performance goals or other performance-based targets established by the Administrator.
2.35 Permitted Transferee means, with respect to a Participant, any family member of the Participant, as defined in the General Instructions to Form S-8 Registration Statement under the Securities Act (or any successor form thereto), or any other transferee specifically approved by the Administrator after taking into account Applicable Law.
2.36 Plan means this 2021 Incentive Award Plan.
2.37 Prior Plan means the Joby Aero, Inc. 2016 Stock Option and Grant Plan, as amended.
2.38 Prior Plan Award means an award outstanding under the Prior Plan as of the Effective Date.
2.39 Public Trading Date means the first date upon which Common Stock is listed (or approved for listing) upon notice of issuance on any securities exchange or designated (or approved for designation) upon notice of issuance as a national market security on an interdealer quotation system.
2.40 Restricted Stock means Shares awarded to a Participant under Article VII, subject to certain vesting conditions and other restrictions.
2.41 Restricted Stock Unit means an unfunded, unsecured right to receive, on the applicable settlement date, one Share or an amount in cash or other consideration determined by the Administrator to be of equal value as of such settlement date, subject to certain vesting conditions and other restrictions.
2.42 Rule 16b-3 means Rule 16b-3 promulgated under the Exchange Act.
2.43 Section 409A means Section 409A of the Code.
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2.44 Securities Act means the Securities Act of 1933, as amended, and all regulations, guidance and other interpretative authority issued thereunder.
2.45 Service Provider means an Employee, Consultant or Director.
2.46 Shares means shares of Common Stock.
2.47 Stock Appreciation Right or SAR means a right granted under Article VI to receive a payment equal to the excess of the Fair Market Value of a specified number of Shares on the date the right is exercised over the exercise price set forth in the applicable Award Agreement.
2.48 Subsidiary means any entity (other than the Company), whether U.S. or non-U.S., in an unbroken chain of entities beginning with the Company if each of the entities other than the last entity in the unbroken chain beneficially owns, at the time of the determination, securities or interests representing at least 50% of the total combined voting power of all classes of securities or interests in one of the other entities in such chain.
2.49 Substitute Awards means Awards granted or Shares issued by the Company in assumption of, or in substitution or exchange for, awards previously granted, or the right or obligation to make future awards, in each case by a company or other entity acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines.
2.50 Tax-Related Items means any U.S. and non-U.S. federal, state and/or local taxes (including, without limitation, income tax, social insurance contributions, fringe benefit tax, employment tax, stamp tax and any employer tax liability which has been transferred to a Participant) for which a Participant is liable in connection with Awards and/or Shares.
2.51 Termination of Service means:
(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.
(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 employment or service or remains in service with the Company or any Subsidiary.
(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.
The Company, in its sole discretion, shall determine the effect of all matters and questions relating to any Termination of Service, including, without limitation, whether a Termination of Service has occurred, whether a Termination of Service resulted from a discharge for Cause and all questions of whether particular leaves of absence constitute a Termination of Service. For purposes of the Plan, a Participants employee-employer relationship or consultancy relationship shall be deemed to be terminated in the event that the Subsidiary employing or contracting with such Participant ceases to remain a Subsidiary following any merger, sale of stock or other corporate transaction or event (including, without limitation, a spin-off), even though the Participant may subsequently continue to perform services for that entity.
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ARTICLE III.
ELIGIBILITY
Service Providers are eligible to be granted Awards under the Plan, subject to the limitations described herein. No Service Provider shall have any right to be granted an Award pursuant to the Plan and neither the Company nor the Administrator is obligated to treat Service Providers, Participants or any other persons uniformly.
ARTICLE IV.
ADMINISTRATION AND DELEGATION
4.1 Administration.
(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 Companys 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 Administrators 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.
(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.
4.2 Delegation of Authority. To the extent permitted by Applicable Law, the Board or any Committee may delegate any or all of its powers under the Plan to one or more Committees or officers of the Company or any of its Subsidiaries; provided, however, that in no event shall an officer of the Company or any of its Subsidiaries be delegated the authority to grant Awards to, or amend Awards held by, the following individuals: (a) individuals who are subject to Section 16 of the Exchange Act, or (b) officers of the Company or any of its Subsidiaries or Directors to whom authority to grant or amend Awards has been delegated hereunder. Any delegation hereunder shall be subject to the restrictions and limits that the Board or Committee specifies at the time of such delegation or that are otherwise included in the applicable organizational documents, and the Board or Committee, as applicable, may at any time rescind the authority so delegated or appoint a new delegatee. At all times, the delegatee appointed under this Section 4.2 shall serve in such capacity at the pleasure of the Board or the Committee, as applicable, and the Board or the Committee may abolish any committee at any time and re-vest in itself any previously delegated authority. Further, regardless of any delegation, the Board or a Committee may, in
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its discretion, exercise any and all rights and duties as the Administrator under the Plan delegated thereby, except with respect to Awards that are required to be determined in the sole discretion of the Committee under the rules of any securities exchange or automated quotation system on which the Shares are listed, quoted or traded.
ARTICLE V.
STOCK AVAILABLE FOR AWARDS
5.1 Number of Shares. Subject to adjustment under Article IX and the terms of this Article V, Awards may be made under the Plan covering up to the Overall Share Limit. As of the Effective Date, the Company will cease granting awards under the Prior Plan; however, Prior Plan Awards will remain subject to the terms of the Prior Plan. Shares issued or delivered under the Plan may consist of authorized but unissued Shares, Shares purchased on the open market or treasury Shares.
5.2 Share Recycling.
(a) If all or any part of an Award or Prior Plan Award expires, lapses or is terminated, exchanged for or settled in cash, surrendered, repurchased, canceled without having been fully exercised or forfeited, in any case, in a manner that results in the Company acquiring Shares covered by the Award 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.
(b) In addition, 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 shall be available for future grants of Awards. Shares subject to a Stock Appreciation Right that are not issued in connection with the stock settlement of the Stock Appreciation Right on exercise thereof and 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 shall not be available for future grants of Awards. 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.
5.3 Incentive Stock Option Limitations. Notwithstanding anything to the contrary herein, no more than 415,845,648 Shares (as adjusted to reflect any Equity Restructuring) may be issued pursuant to the exercise of Incentive Stock Options.
5.4 Substitute Awards. In connection with an entitys merger or consolidation with the Company or any Subsidiary or the Companys or any Subsidiarys acquisition of an entitys property or stock, the Administrator may grant Awards in substitution for any options or other stock or stock-based awards granted before such merger or consolidation by such entity or its affiliate. Substitute Awards may be granted on such terms and conditions as the Administrator deems appropriate, notwithstanding limitations on Awards in the Plan. Substitute Awards will not count against the Overall Share Limit (nor shall Shares subject to a Substitute Award be added to the Shares available for Awards under the Plan as provided above), except that Shares acquired by exercise of substitute Incentive Stock Options will count against the maximum number of Shares that may be issued pursuant to the exercise of Incentive Stock Options under the Plan. Additionally, in the event that a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines has shares available under a pre-existing plan approved by stockholders and not adopted in contemplation of such
acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as appropriately adjusted to reflect the transaction) may be used for Awards under the Plan and shall not reduce the
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Shares authorized for grant under the Plan (and Shares subject to such Awards may again become available for Awards under the Plan as provided under Section 5.2 above); provided that Awards using such available shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not Employees, Directors or Consultants prior to such acquisition or combination.
5.5 Non-Employee Director Award Limit. Notwithstanding any provision to the contrary in the Plan or in any policy of the Company regarding non-employee director compensation, the sum of the grant date fair value (determined as of the grant date in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, or any successor thereto) of all equity-based Awards and the maximum amount that may become payable pursuant to all cash-based Awards that may be granted to a Service Provider as compensation for services as a Non-Employee Director during any calendar year shall not exceed $1,500,000.
ARTICLE VI.
STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
6.1 General. The Administrator may grant Options or Stock Appreciation Rights to one or more Service Providers, subject to such terms and conditions not inconsistent with the Plan as the Administrator shall determine. The Administrator will determine the number of Shares covered by each Option and Stock Appreciation Right, the exercise price of each Option and Stock Appreciation Right and the conditions and limitations applicable to the exercise of each Option and Stock Appreciation Right. A Stock Appreciation Right will entitle the Participant (or other person entitled to exercise the Stock Appreciation Right) to receive from the Company upon exercise of the exercisable portion of the Stock Appreciation Right an amount determined by multiplying the excess, if any, of the Fair Market Value of one Share on the date of exercise over the exercise price per Share of the Stock Appreciation Right by the number of Shares with respect to which the Stock Appreciation Right is exercised, subject to any limitations of the Plan or that the Administrator may impose and payable in cash, Shares valued at Fair Market Value on the date of exercise or a combination of the two as the Administrator may determine or provide in the Award Agreement.
6.2 Exercise Price. The Administrator will establish each Options and Stock Appreciation Rights exercise price and specify the exercise price in the Award Agreement. Subject to Section 6.6, the exercise price will not be less than 100% of the Fair Market Value on the grant date of the Option or Stock Appreciation Right. Notwithstanding the foregoing, in the case of an Option or Stock Appreciation Right that is a Substitute Award, the exercise price per share of the Shares subject to such Option or Stock Appreciation Right, as applicable, may be less than the Fair Market Value per share on the date of grant; provided that the exercise price of any Substitute Award shall be determined in accordance with the applicable requirements of Sections 424 and 409A of the Code.
6.3 Duration of Options. Subject to Section 6.6, each Option or Stock Appreciation Right will be exercisable at such times and as specified in the Award Agreement, provided that the term of an Option or Stock Appreciation Right will not exceed ten years; provided, further, that, unless otherwise determined by the Administrator or specified in the Award Agreement, (a) no portion of an Option or Stock Appreciation Right which is unexercisable at a Participants Termination of Service shall thereafter become exercisable and (b) the portion of an Option or Stock Appreciation Right that is unexercisable at a Participants Termination of Service shall automatically expire on the date of such Termination of Service. In addition, in no event shall an Option or Stock Appreciation Right granted to an Employee who is a non-exempt employee for purposes of overtime pay under the U.S. Fair Labor Standards Act of 1938 be exercisable earlier than six months after its date of grant. Notwithstanding the foregoing, if the Participant, prior to the end of the term of an Option or Stock Appreciation Right, commits an act of Cause (as determined by the Administrator), or violates any non-competition, non-solicitation or confidentiality provisions of any employment contract, confidentiality and nondisclosure
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agreement or other agreement between the Participant and the Company or any of its Subsidiaries, the right to exercise the Option or Stock Appreciation Right, as applicable, may be terminated by the Company and the Company may suspend the Participants right to exercise the Option or Stock Appreciation Right when it reasonably believes that the Participant may have participated in any such act or violation.
6.4 Exercise. Options and Stock Appreciation Rights may be exercised by delivering to the Company (or such other person or entity designated by the Administrator) a notice of exercise, in a form and manner the Company approves (which may be written, electronic or telephonic and may contain representations and warranties deemed advisable by the Administrator), signed or authenticated by the person authorized to exercise the Option or Stock Appreciation Right, together with, as applicable, (a) payment in full of the exercise price for the number of Shares for which the Option is exercised in a manner specified in Section 6.5 and (b) satisfaction in full of any withholding obligation for Tax-Related Items in a manner specified in Section 10.5. The Administrator may, in its discretion, limit exercise with respect to fractional Shares and require that any partial exercise of an Option or Stock Appreciation Right be with respect to a minimum number of Shares.
6.5 Payment Upon Exercise. The Administrator shall determine the methods by which payment of the exercise price of an Option shall be made, including, without limitation:
(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;
(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 Participants 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;
(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;
(d) To the extent permitted by the Administrator, surrendering Shares then issuable upon the Options exercise valued at their Fair Market Value on the exercise date;
(e) To the extent permitted by the Administrator, delivery of a promissory note or any other lawful consideration; or
(f) To the extent permitted by the Administrator, any combination of the above payment forms.
6.6 Additional Terms of Incentive Stock Options. The Administrator may grant Incentive Stock Options only to employees of the Company, any of its present or future parent or subsidiary corporations, as defined in Sections 424(e) or (f) of the Code, respectively, and any other entities the employees of which are eligible to receive Incentive Stock Options under the Code. If an Incentive Stock Option is granted to a Greater Than 10% Stockholder, the exercise price will not be less than 110% of the Fair Market Value on the Options grant date, and the term of the Option will not exceed five years. All Incentive Stock Options (and Award Agreements related thereto) will be subject to and construed consistently with Section 422 of the Code. By accepting an Incentive Stock Option, the Participant agrees to give prompt notice to the Company of dispositions or other transfers (other than in connection with a Change in Control) of Shares acquired under the Option made within (a) two years from the grant date of the Option or (b) one year after the transfer of such Shares to the Participant,
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specifying the date of the disposition or other transfer and the amount the Participant realized, in cash, other property, assumption of indebtedness or other consideration, in such disposition or other transfer. Neither the Company nor the Administrator will be liable to a Participant, or any other party, if an Incentive Stock Option fails or ceases to qualify as an incentive stock option under Section 422 of the Code. Any Incentive Stock Option or portion thereof that fails to qualify as an incentive stock option under Section 422 of the Code for any reason, including becoming exercisable with respect to Shares having a fair market value exceeding the $100,000 limitation under Treasury Regulation Section 1.422-4, will be a Nonqualified Stock Option.
ARTICLE VII.
RESTRICTED STOCK; RESTRICTED STOCK UNITS
7.1 General. The Administrator may grant Restricted Stock, or the right to purchase Restricted Stock, to any Service Provider, subject to forfeiture or the Companys right to repurchase all or part of such shares at their issue price or other stated or formula price from the Participant if conditions the Administrator specifies in the Award Agreement are not satisfied before the end of the applicable restriction period or periods that the Administrator establishes for such Award. In addition, the Administrator may grant Restricted Stock Units, which may be subject to vesting and forfeiture conditions during the applicable restriction period or periods, as set forth in an Award Agreement, to Service Providers. The Administrator shall establish the purchase price, if any, and form of payment for Restricted Stock and Restricted Stock Units; provided, however, that if a purchase price is charged, such purchase price shall be no less than the par value, if any, of the Shares to be purchased, unless otherwise permitted by Applicable Law. In all cases, legal consideration shall be required for each issuance of Restricted Stock and Restricted Stock Units to the extent required by Applicable Law. The Award Agreement for each Award of Restricted Stock and Restricted Stock Units shall set forth the terms and conditions not inconsistent with the Plan as the Administrator shall determine.
7.2 Restricted Stock.
(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.
(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.
(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.
7.3 Restricted Stock Units. The Administrator may provide that settlement of Restricted Stock Units will occur upon or as soon as reasonably practicable after the Restricted Stock Units vest or will instead be deferred, on a mandatory basis or at the Participants election, subject to compliance with Applicable Law.
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ARTICLE VIII.
OTHER TYPES OF AWARDS
8.1 General. The Administrator may grant Performance Stock Unit awards, Performance Bonus Awards, Dividend Equivalents or Other Stock or Cash Based Awards, to one or more Service Providers, in such amounts and subject to such terms and conditions not inconsistent with the Plan as the Administrator shall determine.
8.2 Performance Stock Unit Awards. Each Performance Stock Unit award shall be denominated in a number of Shares or in unit equivalents of Shares or units of value (including a dollar value of Shares) and may be linked to any one or more of performance or other specific criteria, including service to the Company or Subsidiaries, determined to be appropriate by the Administrator, in each case on a specified date or dates or over any period or periods determined by the Administrator. In making such determinations, the Administrator may consider (among such other factors as it deems relevant in light of the specific type of award) the contributions, responsibilities and other compensation of the particular Participant.
8.3 Performance Bonus Awards. Each right to receive a bonus granted under this Section 8.3 shall be denominated in the form of cash (but may be payable in cash, stock or a combination thereof) (a Performance Bonus Award) and shall be payable upon the attainment of performance goals that are established by the Administrator and relate to one or more of performance or other specific criteria, including service to the Company or Subsidiaries, in each case on a specified date or dates or over any period or periods determined by the Administrator.
8.4 Dividend Equivalents. If the Administrator provides, an Award (other than an Option or Stock Appreciation Right) may provide a Participant with the right to receive Dividend Equivalents. Dividend Equivalents may be paid currently or credited to an account for the Participant, settled in cash or Shares and subject to the same restrictions on transferability and forfeitability as the Award with respect to which the Dividend Equivalents are granted and subject to other terms and conditions as set forth in the Award Agreement. Notwithstanding anything to the contrary herein, Dividend Equivalents with respect to an Award subject to vesting shall either (i) to the extent permitted by Applicable Law, not be paid or credited or (ii) be accumulated and subject to vesting to the same extent as the related Award. All such Dividend Equivalents shall be paid at such time as the Administrator shall specify in the applicable Award Agreement.
8.5 Other Stock or Cash Based Awards. Other Stock or Cash Based Awards may be granted to Participants, including Awards entitling Participants to receive cash or Shares to be delivered in the future and annual or other periodic or long-term cash bonus awards (whether based on specified performance criteria or otherwise), in each case subject to any conditions and limitations in the Plan. Such Other Stock or Cash Based Awards will also be available as a payment form in the settlement of other Awards, as standalone payments and as payment in lieu of compensation to which a Participant is otherwise entitled. Other Stock or Cash Based Awards may be paid in Shares, cash or other property, as the Administrator determines. Subject to the provisions of the Plan, the Administrator will determine the terms and conditions of each Other Stock or Cash Based Award, including any purchase price, performance goal(s), transfer restrictions, and vesting conditions, which will be set forth in the applicable Award Agreement. Except in connection with a spin-off or other similar event as otherwise permitted under Article IX, dividends that are paid prior to vesting of any Other Stock or Cash Based Award shall only be paid to the applicable Participant to the extent that the vesting conditions are subsequently satisfied and the Other Stock or Cash Based Award vests.
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ARTICLE IX.
ADJUSTMENTS FOR CHANGES IN COMMON STOCK
AND CERTAIN OTHER EVENTS
9.1 Equity Restructuring. In connection with any Equity Restructuring, notwithstanding anything to the contrary in this Article IX, the Administrator will equitably adjust the terms of the Plan and each outstanding Award as it deems appropriate to reflect the Equity Restructuring, which may include (i) adjusting the number and type of securities subject to each outstanding Award 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 that may be issued); (ii) adjusting the terms and conditions of (including the grant or exercise price), and the performance goals or other criteria included in, outstanding Awards; and (iii) granting new Awards or making cash payments to Participants. The adjustments provided under this Section 9.1 will be nondiscretionary and final and binding on all interested parties, including the affected Participant and the Company; provided that the Administrator will determine whether an adjustment is equitable.
9.2 Corporate Transactions. In the event of any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), reorganization, merger, consolidation, split-up, spin off, combination, amalgamation, repurchase, recapitalization, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or sale or exchange of Common Stock or other securities of the Company, Change in Control, issuance of warrants or other rights to purchase Common Stock or other securities of the Company, other similar corporate transaction or event, other unusual or nonrecurring transaction or event affecting the Company or its financial statements or any change in any Applicable Law or accounting principles, the Administrator, on such terms and conditions as it deems appropriate, either by the terms of the Award or by action taken prior to the occurrence of such transaction or event (except that action to give effect to a change in Applicable Law or accounting principles may be made within a reasonable period of time after such change), is hereby authorized to take any one or more of the following actions whenever the Administrator determines that such action is appropriate in order to (x) prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under the Plan or with respect to any Award granted or issued under the Plan, (y) to facilitate such transaction or event or (z) give effect to such changes in Applicable Law or accounting principles:
(a) To provide for the cancellation of any such Award in exchange for either an amount of cash or other property with a value equal to the amount that could have been obtained upon the exercise or settlement of the vested portion of such Award or realization of the Participants rights under the vested portion of such Award, as applicable; provided that, if the amount that could have been obtained upon the exercise or settlement of the vested portion of such Award or realization of the Participants rights, in any case, is equal to or less than zero, then the Award may be terminated without payment;
(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;
(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;
(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
(f) To provide that the Award will terminate and cannot vest, be exercised or become payable after the applicable event.
9.3 Change in Control.
(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, 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, (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 Administrators discretion.
(b) In the event that the successor corporation in a Change in Control refuses to assume or substitute for an Award (other than any portion subject to performance-based vesting), 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 cash, rights or other property. 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 consummation of the Change in Control, and such Award shall terminate upon the consummation of the Change in Control in accordance with the preceding sentence.
(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.
(d) Notwithstanding anything to the contrary herein, if a Participant experiences a Termination of Service during the period beginning three months prior to and ending 12 months following the closing of a Change in Control that is effected by the Company without Cause or by the Participant for Good Reason, then the Award(s) held by such Participant shall become fully vested and, if applicable, exercisable and all forfeiture restrictions on such Award(s) shall lapse as of immediately prior to the consummation of such Change in Control or, if later, the date of such Termination of Service.
9.4 Administrative Stand Still. In the event of any pending stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other extraordinary transaction or change affecting the Shares or the share price of Common Stock (including any Equity Restructuring or any securities offering or other similar transaction) or for reasons of administrative convenience or to facilitate compliance with any Applicable Law, the Company may refuse to permit the exercise or settlement of one or more Awards for such period of time as the Administrator may determine to be reasonably appropriate under the circumstances.
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9.5 General. Except as expressly provided in the Plan or the Administrators action under the Plan, no Participant will have any rights due to any subdivision or consolidation of Shares of any class, dividend payment, increase or decrease in the number of Shares of any class or dissolution, liquidation, merger, or consolidation of the Company or other corporation. Except as expressly provided with respect to an Equity Restructuring under Section 9.1 above or the Administrators action under the Plan, no issuance by the Company of Shares of any class, or securities convertible into Shares of any class, will affect, and no adjustment will be made regarding, the number of Shares subject to an Award or the Awards grant or exercise price. The existence of the Plan, any Award Agreements and the Awards granted hereunder will not affect or restrict in any way the Companys right or power to make or authorize (i) any adjustment, recapitalization, reorganization or other change in the Companys capital structure or its business, (ii) any merger, consolidation, spinoff, dissolution or liquidation of the Company or sale of Company assets or (iii) any sale or issuance of securities, including securities with rights superior to those of the Shares or securities convertible into or exchangeable for Shares.
ARTICLE X.
PROVISIONS APPLICABLE TO AWARDS
10.1 Transferability.
(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 Administrators 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 Participants personal representative or by any person empowered to do so under the deceased Participants 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.
(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.
(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
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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 Participants spouse or domestic partner, as applicable, as the Participants Designated Beneficiary with respect to more than 50% of the Participants interest in the Award shall not be effective without the prior written or electronic consent of the Participants 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 Participants death.
10.2 Documentation. Each Award will be evidenced in an Award Agreement in such form as the Administrator determines in its discretion. Each Award may contain such terms and conditions as are determined by the Administrator in its sole discretion, to the extent not inconsistent with those set forth in the Plan.
10.3 Discretion. Except as the Plan otherwise provides, each Award may be made alone or in addition or in relation to any other Award. The terms of each Award to a Participant need not be identical, and the Administrator need not treat Participants or Awards (or portions thereof) uniformly.
10.4 Changes in Participants Status. The Administrator will determine how the disability, death, retirement, authorized leave of absence or any other change or purported change in a Participants Service Provider status affects an Award and the extent to which, and the period during which, the Participant, the Participants legal representative, conservator, guardian or Designated Beneficiary may exercise rights under the Award, if applicable. Except to the extent otherwise required by Applicable Law or expressly authorized by the Company or by the Companys written policy on leaves of absence, no service credit shall be given for vesting purposes for any period the Participant is on a leave of absence.
10.5 Withholding. Each Participant must pay the Company or a Subsidiary, as applicable, or make provision satisfactory to the Administrator for payment of, any Tax-Related Items required by Applicable Law to be withheld in connection with such Participants Awards and/or Shares by the date of the event creating the liability for Tax-Related Items. At the Companys discretion and subject to any Company insider trading policy (including black-out periods), any withholding obligation for Tax-Related Items may be satisfied by (i) deducting an amount sufficient to satisfy such withholding obligation from any payment of any kind otherwise due to a Participant; (ii) accepting a payment from the Participant in cash, by wire transfer of immediately available funds, or by check made payable to the order of the Company or a Subsidiary, as applicable; (iii) accepting the delivery of Shares, including Shares delivered by attestation; (iv) retaining Shares from the Award creating the withholding obligation for Tax-Related Items, valued on the date of delivery, (v) if there is a public market for Shares at the time the withholding obligation for Tax-Related Items is satisfied, selling Shares issued pursuant to the Award creating the withholding obligation for Tax-Related Items, either voluntarily by the Participant or mandatorily by the Company; (vi) accepting delivery of a promissory note or any other lawful consideration; or (vii) any combination of the foregoing payment forms. The amount withheld pursuant to any of the foregoing payment forms shall be determined by the Company and may be up to, but no greater than, the aggregate amount of such obligations based on the maximum statutory withholding rates in the applicable Participants jurisdiction for all Tax-Related Items that are applicable to such taxable income. If any tax withholding obligation will be satisfied under clause (v) of the preceding paragraph, each Participants acceptance of an Award under the Plan will constitute the Participants authorization to the Company and instruction and authorization to any brokerage firm selected by the Company to effect the sale to complete the transactions described in clause (v).
10.6 Amendment of Award; Repricing. The Administrator may amend, modify or terminate any outstanding Award, including by substituting another Award of the same or a different type, changing the exercise or settlement date, and converting an Incentive Stock Option to a Nonqualified Stock Option. The Participants consent to such action will be required unless (i) the action, taking into account any related action, does not materially and adversely affect the Participants rights under the Award, or (ii) the change is permitted under Article IX or pursuant to Section 11.6. In addition, the Administrator shall, without the approval of the
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stockholders of the Company, have the authority to (a) amend any outstanding Option or Stock Appreciation Right to reduce its exercise price per Share, or (b) cancel any Option or Stock Appreciation Right in exchange for cash or another Award.
10.7 Conditions on Delivery of Stock. The Company will not be obligated to deliver any Shares under the Plan or remove restrictions from Shares previously delivered under the Plan until (i) all Award conditions have been met or removed to the Companys satisfaction, (ii) as determined by the Company, all other legal matters regarding the issuance and delivery of such Shares have been satisfied, including, without limitation, any applicable securities laws and stock exchange or stock market rules and regulations, (iii) any approvals from governmental agencies that the Company determines are necessary or advisable have been obtained, and (iv) the Participant has executed and delivered to the Company such representations or agreements as the Administrator deems necessary or appropriate to satisfy Applicable Law. The inability or impracticability of the Company to obtain or maintain authority from any regulatory body having jurisdiction, which authority is deemed by the Companys counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained, and shall constitute circumstances in which the Administrator may determine to amend or cancel Awards pertaining to such Shares, with or without consideration to the Participant.
10.8 Acceleration. The Administrator may at any time provide that any Award will become immediately vested and fully or partially exercisable, free of some or all restrictions or conditions, or otherwise fully or partially realizable.
ARTICLE XI.
MISCELLANEOUS
11.1 No Right to Employment or Other Status. No person will have any claim or right to be granted an Award, and the grant of an Award will not be construed as giving a Participant the right to continue employment or any other relationship with the Company or a Subsidiary. The Company and its Subsidiaries expressly reserve the right at any time to dismiss or otherwise terminate its relationship with a Participant free from any liability or claim under the Plan or any Award, except as expressly provided in an Award Agreement or other written agreement between the Participant and the Company or any Subsidiary.
11.2 No Rights as Stockholder; Certificates. Subject to the Award Agreement, no Participant or Designated Beneficiary will have any rights as a stockholder with respect to any Shares to be distributed under an Award until becoming the record holder of such Shares. Notwithstanding any other provision of the Plan, unless the Administrator otherwise determines or Applicable Law requires, the Company will not be required to deliver to any Participant certificates evidencing Shares issued in connection with any Award and instead such Shares may be recorded in the books of the Company (or, as applicable, its transfer agent or stock plan administrator). The Company may place legends on any share certificate or book entry to reference restrictions applicable to the Shares (including, without limitation, restrictions applicable to Restricted Stock).
11.3 Effective Date. The Plan was approved by the Board on February 23, 2021. The Plan will become effective (the Effective Date) on the date immediately prior to the date of the closing of the transactions contemplated by that certain Agreement and Plan of Merger entered into on February 23, 2021, by and among the Company, Reinvent Technology Partners and certain other parties (the Merger Agreement), provided that it is approved by the Companys stockholders prior to the Effective Date and such approval occurs within 12 months following the date the Board approved the Plan. If the Plan is not approved by the Companys stockholders within the foregoing time frame, or if the Merger Agreement is terminated prior to the consummation of the transactions contemplated thereby, the Plan will not become effective. No Incentive Stock Option may be granted pursuant to the Plan after the tenth anniversary of the earlier of (i) the date the Plan was approved by the Board and (ii) the date the Plan was approved by the Companys stockholders.
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11.4 Amendment of Plan. The Board may amend, suspend or terminate the Plan at any time and from time to time; provided that (a) no amendment requiring stockholder approval to comply with Applicable Law shall be effective unless approved by the Board, and (b) no amendment, other than an increase to the Overall Share Limit or pursuant to Article IX or Section 11.6, may materially and adversely affect any Award outstanding at the time of such amendment without the affected Participants consent. No Awards may be granted under the Plan during any suspension period or after Plan termination. Awards outstanding at the time of any Plan suspension or termination will continue to be governed by the Plan and the Award Agreement, as in effect before such suspension or termination. The Board will obtain stockholder approval of any Plan amendment to the extent necessary to comply with Applicable Law.
11.5 Provisions for Foreign Participants. The Administrator may modify Awards granted to Participants who are nationals of a country other than the United States or employed or residing outside the United States, establish subplans or procedures under the Plan or take any other necessary or appropriate action to address Applicable Law, including (a) differences in laws, rules, regulations or customs of such jurisdictions with respect to tax, securities, currency, employee benefit or other matters, (b) listing and other requirements of any non-U.S. securities exchange, and (c) any necessary local governmental or regulatory exemptions or approvals.
11.6 Section 409A.
(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 Participants 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 Awards grant date. The Company makes no representations or warranties as to an Awards 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.
(b) Separation from Service. If an Award constitutes nonqualified deferred compensation under Section 409A, any payment or settlement of such Award upon a Participants Termination of Service will, to the extent necessary to avoid taxes under Section 409A, be made only upon the Participants separation from service (within the meaning of Section 409A), whether such separation from service occurs upon or after the Participants 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.
(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 employees 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 Participants separation from service will be paid at the time or times the payments are otherwise scheduled to be made.
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11.7 Limitations on Liability. Notwithstanding any other provisions of the Plan, no individual acting as a director, officer or other employee of the Company or any Subsidiary will be liable to any Participant, former Participant, spouse, beneficiary, or any other person for any claim, loss, liability, or expense incurred in connection with the Plan or any Award, and such individual will not be personally liable with respect to the Plan because of any contract or other instrument executed in his or her capacity as an Administrator, director, officer or other employee of the Company or any Subsidiary. The Company will indemnify and hold harmless each director, officer or other employee of the Company or any Subsidiary that has been or will be granted or delegated any duty or power relating to the Plans administration or interpretation, against any cost or expense (including attorneys fees) or liability (including any sum paid in settlement of a claim with the Administrators approval) arising from any act or omission concerning this Plan unless arising from such persons own fraud or bad faith; provided that he or she gives the Company an opportunity, at its own expense, to handle and defend the same before he or she undertakes to handle and defend it on his or her own behalf.
11.8 Data Privacy. As a condition for receiving any Award, each Participant explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of personal data as described in this Section 11.8 by and among the Company and its Subsidiaries and affiliates exclusively for implementing, administering and managing the Participants participation in the Plan. The Company and its Subsidiaries and affiliates may hold certain personal information about a Participant, including the Participants name, address and telephone number; birthdate; social security, insurance number or other identification number; salary; nationality; job title(s); any Shares held in the Company or its Subsidiaries and affiliates; and Award details, to implement, manage and administer the Plan and Awards (the Data). The Company and its Subsidiaries and affiliates may transfer the Data amongst themselves as necessary to implement, administer and manage a Participants participation in the Plan, and the Company and its Subsidiaries and affiliates may transfer the Data to third parties assisting the Company with Plan implementation, administration and management. These recipients may be located in the Participants country, or elsewhere, and the Participants country may have different data privacy laws and protections than the recipients country. By accepting an Award, each Participant authorizes such recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, to implement, administer and manage the Participants participation in the Plan, including any required Data transfer to a broker or other third party with whom the Company or the Participant may elect to deposit any Shares. The Data related to a Participant will be held only as long as necessary to implement, administer, and manage the Participants participation in the Plan. A Participant may, at any time, view the Data that the Company holds regarding such Participant, request additional information about the storage and processing of the Data regarding such Participant, recommend any necessary corrections to the Data regarding the Participant or refuse or withdraw the consents in this Section 11.8 in writing, without cost, by contacting the local human resources representative. The Company may cancel Participants ability to participate in the Plan and, in the Administrators sole discretion, the Participant may forfeit any outstanding Awards if the Participant refuses or withdraws the consents in this Section 11.8. For more information on the consequences of refusing or withdrawing consent, Participants may contact their local human resources representative.
11.9 Severability. If any portion of the Plan or any action taken under it is held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining parts of the Plan, and the Plan will be construed and enforced as if the illegal or invalid provisions had been excluded, and the illegal or invalid action will be null and void.
11.10 Governing Documents. If any contradiction occurs between the Plan and any Award Agreement or other written agreement between a Participant and the Company (or any Subsidiary), the Plan will govern, unless such Award Agreement or other written agreement was approved by the Administrator and expressly provides that a specific provision of the Plan will not apply.
11.11 Governing Law. The Plan and all Awards will be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to the conflict of law rules thereof or of any other jurisdiction.
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11.12 Clawback Provisions. All Awards (including the gross amount of any proceeds, gains or other economic benefit the Participant actually or constructively receives upon receipt or exercise of any Award or the receipt or resale of any Shares underlying the Award) will be subject to recoupment by the Company to the extent required to comply with Applicable Law or any policy of the Company providing for the reimbursement of incentive compensation, whether or not such policy was in place at the time of grant of an Award.
11.13 Titles and Headings. The titles and headings in the Plan are for convenience of reference only and, if any conflict, the Plans text, rather than such titles or headings, will control.
11.14 Conformity to Applicable Law. Participant acknowledges that the Plan is intended to conform to the extent necessary with Applicable Law. Notwithstanding anything herein to the contrary, the Plan and all Awards will be administered only in a manner intended to conform with Applicable Law. To the extent Applicable Law permits, the Plan and all Award Agreements will be deemed amended as necessary to conform to Applicable Law.
11.15 Relationship to Other Benefits. No payment under the Plan will be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary, except as expressly provided in writing in such other plan or an agreement thereunder.
11.16 Unfunded Status of Awards. The Plan is intended to be an unfunded plan for incentive compensation. With respect to any payments not yet made to a Participant pursuant to an Award, nothing contained in the Plan or Award Agreement shall give the Participant any rights that are greater than those of a general creditor of the Company or any Subsidiary.
11.17 Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan, the Plan and any Award granted or awarded to any individual who is then subject to Section 16 of the Exchange Act shall be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including Rule 16b-3 of the Exchange Act and any amendments thereto) that are requirements for the application of such exemptive rule. To the extent permitted by Applicable Law, the Plan and Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.
11.18 Prohibition on Executive Officer Loans. Notwithstanding any other provision of the Plan to the contrary, no Participant who is a Director or an executive officer of the Company within the meaning of Section 13(k) of the Exchange Act shall be permitted to make payment with respect to any Awards granted under the Plan, or continue any extension of credit with respect to such payment, with a loan from the Company or a loan arranged by the Company in violation of Section 13(k) of the Exchange Act.
11.19 Broker-Assisted Sales. In the event of a broker-assisted sale of Shares in connection with the payment of amounts owed by a Participant under or with respect to the Plan or Awards, including amounts to be paid under the final sentence of Section 10.5: (a) any Shares to be sold through the broker-assisted sale will be sold on the day the payment first becomes due, or as soon thereafter as practicable; (b) such Shares may be sold as part of a block trade with other Participants in the Plan in which all Participants receive an average price; (c) the applicable Participant will be responsible for all brokers fees and other costs of sale, and by accepting an Award, each Participant agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale; (d) to the extent the Company or its designee receives proceeds of such sale that exceed the amount owed, the Company will pay such excess in cash to the applicable Participant as soon as reasonably practicable; (e) the Company and its designees are under no obligation to arrange for such sale at any particular price; and (f) in the event the proceeds of such sale are insufficient to satisfy the Participants applicable obligation, the Participant may be required to pay immediately upon demand to the Company or its designee an amount in cash sufficient to satisfy any remaining portion of the Participants obligation.
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2021 INCENTIVE AWARD PLAN
STOCK OPTION GRANT NOTICE
Joby Aviation, Inc., a Delaware corporation, (the Company), pursuant to its 2021 Incentive Award Plan, as may be amended from time to time (the Plan), hereby grants to the holder listed below (Participant), an option to purchase the number of shares of the Companys Common Stock (the Shares), set forth below (the Option). This Option is subject to all of the terms and conditions set forth herein, as well as in the Plan and the Stock Option Agreement attached hereto as Exhibit A (the Stock Option Agreement), each of which are incorporated herein by reference. Capitalized terms not specifically defined in this Stock Option Grant Notice (the Grant Notice) and the Stock Option Agreement but defined in the Plan will have the same definitions as in the Plan.
Participant: | [ ] | |
Grant Date: | [ ] | |
Vesting Commencement Date: | [ ] | |
Exercise Price per Share: | $[ ] | |
Total Exercise Price: | [ ] | |
Total Number of Shares Subject to the Option: | [ ] | |
Expiration Date: | [ ] | |
Vesting Schedule: | [ ] |
Type of Option: ☐ Incentive Stock Option ☐ Nonqualified Stock Option
By his or her signature and the Companys signature below, Participant agrees to be bound by the terms and conditions of the Plan, the Stock Option Agreement and this Grant Notice. Participant has reviewed the Plan, the Stock Option Agreement and this Grant Notice in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Grant Notice and fully understands all provisions of the Plan, the Stock Option Agreement and this Grant Notice. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan, the Stock Option Agreement or this Grant Notice.
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EXHIBIT A
TO STOCK OPTION GRANT NOTICE
STOCK OPTION AGREEMENT
Pursuant to the Stock Option Grant Notice (the Grant Notice) to which this Stock Option Agreement (this Agreement) is attached, Joby Aviation, Inc., a Delaware corporation (the Company), has granted to the Participant an Option under the Companys 2021 Incentive Award Plan, as may be amended from time to time (the Plan), to purchase the number of Shares indicated in the Grant Notice.
ARTICLE 1.
GENERAL
1.1 Defined Terms. Capitalized terms not specifically defined herein shall have the meanings specified in the Plan and the Grant Notice.
1.2 Incorporation of Terms of Plan. The Option is subject to the terms and conditions of the Plan which are incorporated herein by reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan shall control.
ARTICLE 2.
GRANT OF OPTION
2.1 Grant of Option. In consideration of the Participants past or continued employment with or service to the Company or any Subsidiary and for other good and valuable consideration, effective as of the Grant Date set forth in the Grant Notice (the Grant Date), the Company irrevocably grants to the Participant the Option to purchase any part or all of an aggregate of the number of Shares set forth in the Grant Notice, upon the terms and conditions set forth in the Plan and this Agreement, subject to adjustments as provided in Article IX of the Plan. Unless designated as a Nonqualified Stock Option in the Grant Notice, the Option shall be an Incentive Stock Option to the maximum extent permitted by law.
2.2 Exercise Price. The exercise price of the Shares subject to the Option shall be as set forth in the Grant Notice, without commission or other charge; provided, however, that the price per share of the Shares subject to the Option shall not be less than 100% of the Fair Market Value of a Share on the Grant Date. Notwithstanding the foregoing, if this Option is designated as an Incentive Stock Option and the Participant is a Greater Than 10% Stockholder as of the Grant Date, the exercise price per share of the Shares subject to the Option shall not be less than 110% of the Fair Market Value of a Share on the Grant Date.
2.3 Consideration to the Company. In consideration of the grant of the Option by the Company, the Participant agrees to render faithful and efficient services to the Company or any Subsidiary. Nothing in the Plan or this Agreement shall confer upon the Participant any right to continue in the employ or service of the Company or any Subsidiary or shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which rights are hereby expressly reserved, to discharge or terminate the services of the Participant at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between the Company or a Subsidiary and the Participant.
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ARTICLE 3.
PERIOD OF EXERCISABILITY
3.1 Commencement of Exercisability.
(a) Subject to Sections 3.2, 3.3, 5.11 and 5.17 hereof, the Option shall become vested and exercisable in such amounts and at such times as are set forth in the Grant Notice.
(b) No portion of the Option which has not become vested and exercisable at the date of the Participants Termination of Service shall thereafter become vested and exercisable, except as may be otherwise provided by the Administrator or as set forth in a written agreement between the Company and the Participant.
(c) Notwithstanding Section 3.1(a) hereof and the Grant Notice, but subject to Section 3.1(b) hereof, in the event of a Change in Control the Option shall be treated pursuant to Sections 9.2 and 9.3 of the Plan.
3.2 Duration of Exercisability. The installments provided for in the vesting schedule set forth in the Grant Notice are cumulative. Each such installment which becomes vested and exercisable pursuant to the vesting schedule set forth in the Grant Notice shall remain vested and exercisable until it becomes unexercisable under Section 3.3 hereof.
3.3 Expiration of Option. The Option may not be exercised to any extent by anyone after the first to occur of the following events:
(a) The Expiration Date set forth in the Grant Notice, which shall in no event be more than ten years from the Grant Date;
(b) If this Option is designated as an Incentive Stock Option and the Participant, at the time the Option was granted, was a Greater Than 10% Stockholder, the expiration of five years from the Grant Date;
(c) The expiration of three months from the date of the Participants Termination of Service, unless such termination occurs by reason of the Participants death or Disability;
(d) The expiration of one year from the date of the Participants Termination of Service by reason of the Participants death or Disability; or
(e) The Participants Termination of Service for Cause.
3.4 Special Tax Consequences. The Participant acknowledges that, to the extent that the aggregate Fair Market Value (determined as of the time the Option is granted) of all Shares with respect to which Incentive Stock Options, including the Option (if applicable), are exercisable for the first time by the Participant in any calendar year exceeds $100,000, the Option and such other options shall be Nonqualified Stock Options to the extent necessary to comply with the limitations imposed by Section 422(d) of the Code. The Participant further acknowledges that the rule set forth in the preceding sentence shall be applied by taking the Option and other incentive stock options into account in the order in which they were granted, as determined under Section 422(d) of the Code and the Treasury Regulations thereunder. The Participant also acknowledges that an Incentive Stock Option exercised more than three months after the Participants Termination of Employment, other than by reason of death or Disability, will be taxed as a Nonqualified Stock Option.
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3.5 Tax Indemnity.
(a) The Participant agrees to indemnify and keep indemnified the Company, any Subsidiary and the Participants employing company, if different, from and against any liability for or obligation to pay any Tax Liability (a Tax Liability being any liability for income tax, withholding tax and any other employment related taxes or social security contributions in any jurisdiction) that is attributable to (1) the grant or exercise of, or any benefit derived by the Participant from, the Option, (2) the acquisition by the Participant of the Shares on exercise of the Option or (3) the disposal of any Shares.
(b) The Option cannot be exercised until the Participant has made such arrangements as the Company may require for the satisfaction of any Tax Liability that may arise in connection with the exercise of the Option or the acquisition of the Shares by the Participant. The Company shall not be required to issue, allot or transfer Shares until the Participant has satisfied this obligation.
(c) The Participant hereby acknowledges that the Company (i) makes no representations or undertakings regarding the treatment of any Tax Liabilities in connection with any aspect of the Option and (ii) does not commit to and is under no obligation to structure the terms of the grant or any aspect of any Award, including the Option, to reduce or eliminate the Participants liability for Tax Liabilities or achieve any particular tax result. Furthermore, if the Participant becomes subject to tax in more than one jurisdiction between the date of grant of an Award, including the Option, and the date of any relevant taxable event, the Participant acknowledges that the Company may be required to withhold or account for Tax Liabilities in more than one jurisdiction.
ARTICLE 4.
EXERCISE OF OPTION
4.1 Person Eligible to Exercise. Except as provided in Section 5.3 hereof, during the lifetime of the Participant, only the Participant may exercise the Option or any portion thereof, unless it has been disposed of pursuant to a DRO. After the death of the Participant, any exercisable portion of the Option may, prior to the time when the Option becomes unexercisable under Section 3.3 hereof, be exercised by the deceased Participants personal representative or by any person empowered to do so under the deceased Participants will or under the then applicable laws of descent and distribution.
4.2 Partial Exercise. Any exercisable portion of the Option or the entire Option, if then wholly exercisable, may be exercised in whole or in part at any time prior to the time when the Option or portion thereof becomes unexercisable under Section 3.3 hereof. However, the Option shall not be exercisable with respect to fractional Shares.
4.3 Manner of Exercise. The Option, or any exercisable portion thereof, may be exercised solely by delivery to the Secretary of the Company (or any third party administrator or other person or entity designated by the Company; for the avoidance of doubt, delivery shall include electronic delivery), during regular business hours, of all of the following prior to the time when the Option or such portion thereof becomes unexercisable under Section 3.3 hereof:
(a) An exercise notice in a form specified by the Administrator, stating that the Option or portion thereof is thereby exercised, such notice complying with all applicable rules established by the Administrator. The notice shall be signed by the Participant or other person then entitled to exercise the Option or such portion of the Option;
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(b) The receipt by the Company of full payment for the Shares with respect to which the Option or portion thereof is exercised, including payment of any applicable withholding tax, which shall be made by deduction from other compensation payable to the Participant or in such other form of consideration permitted under Section 4.4 hereof that is acceptable to the Company;
(c) Any other written representations or documents as may be required in the Administrators sole discretion to evidence compliance with the Securities Act, the Exchange Act or any other applicable law, rule or regulation; and
(d) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 hereof by any person or persons other than the Participant, appropriate proof of the right of such person or persons to exercise the Option.
Notwithstanding any of the foregoing, the Company shall have the right to specify all conditions of the manner of exercise, which conditions may vary by country and which may be subject to change from time to time.
4.4 Method of Payment. Payment of the exercise price shall be by any of the following, or a combination thereof, at the election of the Participant:
(a) Cash or check;
(b) With the consent of the Administrator, surrender of Shares (including, without limitation, Shares otherwise issuable upon exercise of the Option) held for such period of time as may be required by the Administrator in order to avoid adverse accounting consequences and having a Fair Market Value on the date of delivery equal to the aggregate exercise price of the Option or exercised portion thereof; or
(c) Other legal consideration acceptable to the Administrator (including, without limitation, through the delivery of a notice that the Participant has placed a market sell order with a broker with respect to Shares then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price; provided that payment of such proceeds is then made to the Company at such time as may be required by the Company, but in any event not later than the settlement of such sale).
4.5 Conditions to Issuance of Shares. The Shares deliverable upon the exercise of the Option, or any portion thereof, may be either previously authorized but unissued Shares or issued Shares which have then been reacquired by the Company. Such Shares shall be fully paid and nonassessable. The Company shall not be required to issue or deliver any Shares purchased upon the exercise of the Option or portion thereof prior to fulfillment of all of the conditions in Section 10.7 of the Plan and following conditions:
(a) The admission of such Shares to listing on all stock exchanges on which such Shares are then listed;
(b) The completion of any registration or other qualification of such Shares under any state or federal law or under rulings or regulations of the Securities and Exchange Commission or of any 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 which the Administrator shall, in its absolute discretion, determine to be necessary or advisable;
(d) The receipt by the Company of full payment for such Shares, including payment of any applicable withholding tax, which may be in one or more of the forms of consideration permitted under Section 4.4 hereof; and
(e) The lapse of such reasonable period of time following the exercise of the Option as the Administrator may from time to time establish for reasons of administrative convenience.
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4.6 Rights as Stockholder. The holder of the Option shall not be, nor have any of the rights or privileges of, a stockholder of the Company, including, without limitation, voting rights and rights to dividends, in respect of any Shares purchasable upon the exercise of any part of the Option unless and until such Shares shall have been issued by the Company and held of record by such holder (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Article IX of the Plan.
ARTICLE 5.
OTHER PROVISIONS
5.1 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 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 in good faith shall be final and binding upon the Participant, the Company and all other interested persons. No member of the Committee or the Board shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan, this Agreement or the Option.
5.2 Whole Shares. The Option may only be exercised for whole Shares.
5.3 Transferability.
(a) Subject to Section 4.1 hereof, the Option may not be sold, pledged, assigned or transferred in any manner other than by will or the laws of descent and distribution or, subject to the consent of the Administrator, pursuant to a DRO, unless and until the Option has been exercised and the Shares underlying the Option have been issued, and all restrictions applicable to such Shares have lapsed. Neither the Option nor any interest or right therein shall be liable for the debts, contracts or engagements of the Participant or his or her successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, hypothecation, 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) unless and until the Option has been exercised, and any attempted disposition thereof prior to exercise shall be null and void and of no effect, except to the extent that such disposition is permitted by the preceding sentence.
(b) During the lifetime of the Participant, only the Participant may exercise the Option (or any portion thereof), unless it has been disposed of pursuant to a DRO; after the death of the Participant, any exercisable portion of the Option may, prior to the time when such portion becomes unexercisable under the Plan or this Agreement, be exercised by the Participants personal representative or by any person empowered to do so under the deceased Participants will or under the then-applicable laws of descent and distribution.
(c) Notwithstanding any other provision in this Agreement, the Participant may, in the manner determined by the Administrator, designate a beneficiary to exercise the rights of the Participant and to receive any distribution with respect to the Option upon the Participants death. A 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 this Agreement, except to the extent the Plan and this Agreement otherwise provide, and to 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 Participants spouse or domestic partner, as applicable, as his or her beneficiary with respect to more than 50% of the Participants interest in the Option shall not be effective without the prior written consent of the Participants spouse or domestic partner. If no beneficiary has been designated or
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survives the Participant, payment shall be made to the person entitled thereto pursuant to the Participants will or the laws of descent and distribution. Subject to the foregoing, a beneficiary designation may be changed or revoked by the Participant at any time provided the change or revocation is filed with the Administrator prior to the Participants death.
5.4 Tax Consultation. The Participant understands that the Participant may suffer adverse tax consequences as a result of the grant, vesting or exercise of the Option, or with the purchase or disposition of the Shares subject to the Option. The Participant represents that the Participant has consulted with any tax consultants the Participant deems advisable in connection with the purchase or disposition of such Shares and that the Participant is not relying on the Company for any tax advice.
5.5 Binding Agreement. Subject to the limitation on the transferability of the Option contained herein, this Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.
5.6 Adjustments Upon Specified Events. The Administrator may accelerate the vesting of the Option in such circumstances as it, in its sole discretion, may determine. In addition, upon the occurrence of certain events relating to the Shares contemplated by Article IX of the Plan (including, without limitation, an extraordinary cash dividend on such Shares), the Administrator shall make such adjustments the Administrator deems appropriate in the number of Shares subject to the Option, the exercise price of the Option and the kind of securities that may be issued upon exercise of the Option. The Participant acknowledges that the Option is subject to adjustment, modification and termination in certain events as provided in this Agreement and Article IX of the Plan.
5.7 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 Companys principal office, and any notice to be given to the Participant shall be addressed to the Participant at the Participants last address reflected on the Companys records. By a notice given pursuant to this Section 5.7, either party may hereafter designate a different address for notices to be given to that party. Any notice which is required to be given to the Participant shall, if the Participant is then deceased, be given to the person entitled to exercise his or her Option pursuant to Section 4.1 hereof by written notice under this Section 5.7. 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.
5.8 Titles. Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.
5.9 Governing Law. The laws of the State of Delaware shall govern the interpretation, validity, administration, enforcement and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.
5.10 Conformity to Securities Laws. The 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 Option is granted and may be exercised, only in such a manner as to conform to such Applicable Law. To the extent permitted by applicable law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to such Applicable Law.
5.11 Amendment, Suspension and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Administrator or the Board; provided, however, that, except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall adversely affect the Option in any material way without the prior written consent of the Participant.
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5.12 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 herein set forth in Section 5.3 hereof, this Agreement shall be binding upon the Participant and his or her heirs, executors, administrators, successors and assigns.
5.13 Notification of Disposition. If this Option is designated as an Incentive Stock Option, the Participant shall give prompt notice to the Company of any disposition or other transfer of any Shares acquired under this Agreement if such disposition or transfer is made (a) within two years from the Grant Date with respect to such Shares or (b) within one year after the transfer of such Shares to the Participant. Such notice shall specify the date of such disposition or other transfer and the amount realized, in cash, other property, assumption of indebtedness or other consideration, by the Participant in such disposition or other transfer.
5.14 Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan or this Agreement, if the Participant is subject to Section 16 of the Exchange Act, the Plan, the Option 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.
5.15 Not a Contract of Service Relationship. Nothing in this Agreement or in the Plan shall confer upon the Participant any right to continue to serve as an employee or other service provider of the Company or any of its Subsidiaries or interfere with or restrict in any way with the right of the Company or any of its Subsidiaries, which rights are hereby expressly reserved, to discharge or to terminate for any reason whatsoever, with or without cause, the services of the Participants at any time.
5.16 Entire Agreement. The Plan, the Grant Notice and this Agreement constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with respect to the subject matter hereof, provided that the Option shall be subject to any accelerated vesting provisions in any written agreement between the Participant and the Company or a Company plan pursuant to which the Participant participates, in each case, in accordance with the terms therein.
5.17 Section 409A. This Option is not intended to constitute nonqualified deferred compensation within the meaning of Section 409A of the Code (together with any Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the date hereof, Section 409A). However, notwithstanding any other provision of the Plan, the Grant Notice or this Agreement, if at any time the Administrator determines that the Option (or any portion thereof) may be subject to Section 409A, the Administrator shall have the right in its sole discretion (without any obligation to do so or to indemnify the Participant or any other person for failure to do so) to adopt such amendments to the Plan, the Grant Notice 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 either for the Option to be exempt from the application of Section 409A or to comply with the requirements of Section 409A.
5.18 Limitation on the Participants 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. The 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 Option, and rights no greater than the right to receive the Shares as a general unsecured creditor with respect to options, as and when exercised pursuant to the terms hereof.
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2021 INCENTIVE AWARD PLAN
RESTRICTED STOCK UNIT AWARD GRANT NOTICE
Joby Aviation, Inc., a Delaware corporation, (the Company), pursuant to its 2021 Incentive Award Plan, as amended from time to time (the Plan), hereby grants to the holder listed below (the Participant), an award of restricted stock units (Restricted Stock Units or RSUs). Each vested Restricted Stock Unit represents the right to receive, in accordance with the Restricted Stock Unit Award Agreement attached hereto as Exhibit A (the Agreement), one share of Common Stock (Share). This award of Restricted Stock Units is subject to all of the terms and conditions set forth herein and in the Agreement and the Plan, each of which are incorporated herein by reference. Capitalized terms not specifically defined in this Restricted Stock Unit Award Grant Notice (the Grant Notice) and the Agreement but defined in the Plan will have the same definitions as in the Plan.
Participant: | [ ] | |
Grant Date: | [ ] | |
Total Number of RSUs: | [ ] | |
Vesting Commencement Date: | [ ] | |
Vesting Schedule: | [ ] | |
Termination: | If the Participant experiences a Termination of Service, all RSUs that have not become vested on or prior to the date of such Termination of Service will thereupon be automatically forfeited by the Participant without payment of any consideration therefor. |
By his or her signature and the Companys signature below, the Participant agrees to be bound by the terms and conditions of the Plan, the Agreement and this Grant Notice. The Participant has reviewed the Plan, the Agreement and this Grant Notice in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Grant Notice and fully understands all provisions of the Plan, the Agreement and this Grant Notice. The Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan, the Agreement or this Grant Notice. In addition, by signing below, the Participant also agrees that the Company, in its sole discretion, may satisfy any withholding obligations in accordance with Section 2.6(b) of the Agreement by (i) withholding shares of Common Stock otherwise issuable to the Participant upon vesting of the RSUs, (ii) instructing a broker on the Participants behalf to sell shares of Common Stock otherwise issuable to the Participant upon vesting of the RSUs and submit the proceeds of such sale to the Company, or (iii) using any other method permitted by Section 2.6(b) of the Agreement or the Plan.
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EXHIBIT A
TO RESTRICTED STOCK UNIT AWARD GRANT NOTICE
RESTRICTED STOCK UNIT AWARD AGREEMENT
Pursuant to the Restricted Stock Unit Award Grant Notice (the Grant Notice) to which this Restricted Stock Unit Award Agreement (this Agreement) is attached, Joby Aviation, Inc., a Delaware corporation (the Company), has granted to the Participant the number of restricted stock units (Restricted Stock Units or RSUs) set forth in the Grant Notice under the Companys 2021 Incentive Award Plan, as amended from time to time (the Plan). Each Restricted Stock Unit represents the right to receive one share of Common Stock (a Share) upon vesting.
ARTICLE I.
GENERAL
1.1 Defined Terms. Capitalized terms not specifically defined herein shall have the meanings specified in the Plan and the Grant Notice.
1.2 Incorporation of Terms of Plan. The RSUs are subject to the terms and conditions of the Plan, which are incorporated herein by reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan shall control.
ARTICLE II.
GRANT OF RESTRICTED STOCK UNITS
2.1 Grant of RSUs. Pursuant to the Grant Notice and upon the terms and conditions set forth in the Plan and this Agreement, effective as of the Grant Date set forth in the Grant Notice, the Company hereby grants to the Participant an award of RSUs under the Plan in consideration of the Participants past or continued employment with or service to the Company or any Subsidiaries and for other good and valuable consideration.
2.2 Unsecured Obligation to RSUs. Unless and until the RSUs have vested in the manner set forth in Article 2 hereof, the Participant will have no right to receive Common Stock under any such RSUs. Prior to actual payment of any vested RSUs, such RSUs will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.
2.3 Vesting Schedule. Subject to Section 2.5 hereof, the RSUs shall vest and become nonforfeitable with respect to the applicable portion thereof according to the vesting schedule set forth in the Grant Notice (rounding down to the nearest whole Share).
2.4 Consideration to the Company. In consideration of the grant of the award of RSUs pursuant hereto, the Participant agrees to render faithful and efficient services to the Company or any Subsidiary.
2.5 Forfeiture, Termination and Cancellation upon Termination of Service. Notwithstanding any contrary provision of this Agreement or the Plan, upon the Participants Termination of Service for any or no reason, all Restricted Stock Units which have not vested prior to or in connection with such Termination of Service shall thereupon automatically be forfeited, terminated and cancelled as of the applicable termination date without payment of any consideration by the Company, and the Participant, or the Participants beneficiary or personal representative, as the case may be, shall have no further rights hereunder. No portion of the RSUs which has not
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become vested as of the date on which the Participant incurs a Termination of Service shall thereafter become vested, except as may otherwise be provided by the Administrator or as set forth in a written agreement between the Company and the Participant.
2.6 Issuance of Common Stock upon Vesting.
(a) As soon as administratively practicable following the vesting of any Restricted Stock Units pursuant to Section 2.3 hereof, but in no event later than 30 days after such vesting date (for the avoidance of doubt, this deadline is intended to comply with the short term deferral exemption from Section 409A of the Code), the Company shall deliver to the Participant (or any transferee permitted under Section 3.2 hereof) a number of Shares equal to the number of RSUs subject to this Award that vest on the applicable vesting date. Notwithstanding the foregoing, in the event Shares cannot be issued pursuant to Section 10.7 of the Plan, the Shares shall be issued pursuant to the preceding sentence as soon as administratively practicable after the Administrator determines that Shares can again be issued in accordance with such Section.
(b) As set forth in Section 10.5 of the Plan, the Company shall have the authority and the right to deduct or withhold, or to require the Participant to remit to the Company, an amount sufficient to satisfy all applicable federal, state and local taxes required by law to be withheld with respect to any taxable event arising in connection with the Restricted Stock Units. The Company shall not be obligated to deliver any Shares to the Participant or the Participants legal representative unless and until the Participant or the Participants legal representative shall have paid or otherwise satisfied in full the amount of all federal, state and local taxes applicable to the taxable income of the Participant resulting from the grant or vesting of the Restricted Stock Units or the issuance of Shares.
2.7 Conditions to Delivery of Shares. The Shares deliverable hereunder may be either previously authorized but unissued Shares, treasury Shares or issued Shares which have then been reacquired by the Company. Such Shares shall be fully paid and nonassessable. The Company shall not be required to issue Shares deliverable hereunder prior to fulfillment of the conditions set forth in Section 10.7 of the Plan.
2.8 Rights as Stockholder. The holder of the RSUs shall not be, nor have any of the rights or privileges of, a stockholder of the Company, including, without limitation, voting rights and rights to dividends, in respect of the RSUs and any Shares underlying the RSUs and deliverable hereunder unless and until such Shares shall have been issued by the Company and held of record by such holder (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Article IX of the Plan.
ARTICLE III.
OTHER PROVISIONS
3.1 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 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 in good faith shall be final and binding upon the Participant, the Company and all other interested persons. No member of the Administrator or the Board shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan, this Agreement or the RSUs.
3.2 Transferability. The RSUs shall be subject to the restrictions on transferability set forth in Section 10.1 of the Plan.
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3.3 Tax Consultation. The Participant understands that the Participant may suffer adverse tax consequences in connection with the RSUs granted pursuant to this Agreement (and the Shares issuable with respect thereto). The Participant represents that the Participant has consulted with any tax consultants the Participant deems advisable in connection with the RSUs and the issuance of Shares with respect thereto and that the Participant is not relying on the Company for any tax advice.
3.4 Binding Agreement. Subject to the limitation on the transferability of the RSUs contained herein, this Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.
3.5 Adjustments Upon Specified Events. The Administrator may accelerate the vesting of the RSUs in such circumstances as it, in its sole discretion, may determine. The Participant acknowledges that the RSUs are subject to adjustment, modification and termination in certain events as provided in this Agreement and Article IX of the Plan.
3.6 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 Companys principal office, and any notice to be given to the Participant shall be addressed to the Participant at the Participants last address reflected on the Companys records. By a notice given pursuant to this Section 3.6, 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.
3.7 Participants Representations. If the Shares issuable hereunder have not been registered under the Securities Act or any applicable state laws on an effective registration statement at the time of such issuance, the Participant shall, if required by the Company, concurrently with such issuance, make such written representations as are deemed necessary or appropriate by the Company or its counsel.
3.8 Titles. Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.
3.9 Governing Law. The laws of the State of Delaware shall govern the interpretation, validity, administration, enforcement and performance of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.
3.10 Conformity to Securities Laws. The 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 other Applicable Law. 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 Applicable Law. To the extent permitted by Applicable Law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to such Applicable Law.
3.11 Amendment, Suspension and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Administrator or the Board; provided, however, that, except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall adversely affect the RSUs in any material way without the prior written consent of the Participant.
3.12 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 herein set forth in Section 3.2 hereof, this Agreement shall be binding upon the Participant and his or her heirs, executors, administrators, successors and assigns.
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3.13 Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan or this Agreement, if the Participant is subject to Section 16 of the Exchange Act, then 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.
3.14 Not a Contract of Service Relationship. Nothing in this Agreement or in the Plan shall confer upon Participant any right to continue to serve as an employee or other service provider of the Company or any of its Subsidiaries or interfere with or restrict in any way with the right of the Company or any of its Subsidiaries, which rights are hereby expressly reserved, to discharge or to terminate for any reason whatsoever, with or without cause, the services of the Participant at any time.
3.15 Entire Agreement. The Plan, the Grant Notice and this Agreement (including all Exhibits thereto, if any) constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and the Participant with respect to the subject matter hereof, provided that the RSUs shall be subject to any accelerated vesting provisions in any written agreement between the Participant and the Company or a Company plan pursuant to which the Participant participates, in each case, in accordance with the terms therein.
3.16 Section 409A. This Award is not intended to constitute nonqualified deferred compensation within the meaning of Section 409A of the Code (together with any Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the date hereof, Section 409A). However, notwithstanding any other provision of the Plan, the Grant Notice or this Agreement, if at any time the Administrator determines that this Award (or any portion thereof) may be subject to 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, the Grant Notice 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 Section 409A or to comply with the requirements of Section 409A.
3.17 Limitation on Participants 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. The Participant shall have only the rights of a general unsecured creditor of the Company and its Subsidiaries with respect to amounts credited and benefits payable, if any, with respect to the RSUs, and rights no greater than the right to receive the Common Stock as a general unsecured creditor with respect to RSUs, as and when payable hereunder.
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Exhibit 10.15
JOBY AVIATION, INC.
2021 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE 1
PURPOSE
The Plans purpose is to assist employees of the Company and its Designated Subsidiaries in acquiring a stock ownership interest in the Company, and to help such employees provide for their future security and to encourage them to remain in the employment of the Company and its Subsidiaries.
The Plan consists of two components: the Section 423 Component and the Non-Section 423 Component. The Section 423 Component is intended to qualify as an employee stock purchase plan under Section 423 of the Code and shall be administered, interpreted and construed in a manner consistent with the requirements of Section 423 of the Code. In addition, this Plan authorizes the grant of Options under the Non-Section 423 Component, which need not qualify as Options granted pursuant to an employee stock purchase plan under Section 423 of the Code; such Options granted under the Non-Section 423 Component shall be granted pursuant to separate Offerings containing such sub-plans, appendices, rules or procedures as may be adopted by the Administrator and designed to achieve tax, securities laws or other objectives for Eligible Employees and the Designated Subsidiaries in locations outside of the United States. Except as otherwise provided herein, the Non-Section 423 Component will operate and be administered in the same manner as the Section 423 Component. Offerings intended to be made under the Non-Section 423 Component will be designated as such by the Administrator at or prior to the time of such Offering.
For purposes of this Plan, the Administrator may designate separate Offerings under the Plan, the terms of which need not be identical, in which Eligible Employees will participate, even if the dates of the applicable Offering Period(s) in each such Offering is identical, provided that the terms of participation are the same within each separate Offering under the Section 423 Component as determined under Section 423 of the Code. Solely by way of example and without limiting the foregoing, the Company could, but shall not be required to, provide for simultaneous Offerings under the Section 423 Component and the Non-Section 423 Component of the Plan.
ARTICLE 2
DEFINITIONS
As used in the Plan, the following words and phrases have the meanings specified below, unless the context clearly indicates otherwise:
2.1 Administrator means the Committee, or such individuals to which authority to administer the Plan has been delegated under Section 7.1 hereof.
2.2 Agent means the brokerage firm, bank or other financial institution, entity or person(s), if any, engaged, retained, appointed or authorized to act as the agent of the Company or an Employee with regard to the Plan.
2.3 Board means the Board of Directors of the Company.
2.4 Code means the U.S. Internal Revenue Code of 1986, as amended, and all regulations, guidance, compliance programs and other interpretative authority issued thereunder.
2.5 Committee means the Compensation Committee of the Board.
2.6 Common Stock means the common stock of the Company.
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2.7 Company means Joby Aviation, Inc., a Delaware corporation, or any successor.
2.8 Compensation of an Employee means the regular earnings or base salary, bonuses and commissions paid to the Employee from the Company on each Payday as compensation for services to the Company or any Designated Subsidiary, before deduction for any salary deferral contributions made by the Employee to any tax-qualified or nonqualified deferred compensation plan, including overtime, shift differentials, vacation pay, salaried production schedule premiums, holiday pay, jury duty pay, funeral leave pay, paid time off, military pay, prior week adjustments and weekly bonus, but excluding education or tuition reimbursements, imputed income arising under any group insurance or benefit program, travel expenses, business and moving reimbursements, including tax gross ups and taxable mileage allowance, income received in connection with any stock options, restricted stock, restricted stock units or other compensatory equity awards and all contributions made by the Company or any Designated Subsidiary for the Employees benefit under any employee benefit plan now or hereafter established. Such Compensation shall be calculated before deduction of any income or employment tax withholdings, but shall be withheld from the Employees net income.
2.9 Designated Subsidiary means each Subsidiary, including any Subsidiary in existence on the Effective Date and any Subsidiary formed or acquired following the Effective Date, that has been designated by the Board or Committee from time to time in its sole discretion as eligible to participate in the Plan, in accordance with Section 7.2 hereof, such designation to specify whether such participation is in the Section 423 Component or Non-Section 423 Component. A Designated Subsidiary may participate in either the Section 423 Component or Non-Section 423 Component, but not both; provided that a Subsidiary that, for U.S. tax purposes, is disregarded from the Company or any Subsidiary that participates in the Section 423 Component shall automatically constitute a Designated Subsidiary that participates in the Section 423 Component.
2.10 Effective Date means the date immediately prior to the date of the closing of the transactions contemplated by that certain Agreement and Plan of Merger entered into on February 23, 2021, by and among the Company, Reinvent Technology Partners and certain other parties (the Merger Agreement), provided that the Board has approved the Plan prior to or on such Effective Date, subject to approval of the Plan by the Companys stockholders.
2.11 Eligible Employee means an Employee:
(a) who is customarily scheduled to work at least 20 hours per week;
(b) whose customary employment is more than five months in a calendar year; and
(c) who, after the granting of the Option, would not be deemed for purposes of Section 423(b)(3) of the Code to possess 5% or more of the total combined voting power or value of all classes of stock of the Company or any Subsidiary.
For purposes of clause (c), the rules of Section 424(d) of the Code with regard to the attribution of stock ownership shall apply in determining the stock ownership of an individual, and stock which an Employee may purchase under outstanding options shall be treated as stock owned by the Employee.
Notwithstanding the foregoing, the Administrator may exclude from participation in the Section 423 Component as an Eligible Employee:
(x) any Employee that is a highly compensated employee of the Company or any Designated Subsidiary (within the meaning of Section 414(q) of the Code), or that is such a highly compensated employee (A) with compensation above a specified level, (B) who is an officer or (C) who is subject to the disclosure requirements of Section 16(a) of the Exchange Act; or
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(y) any Employee who is a citizen or resident of a foreign jurisdiction (without regard to whether they are also a citizen of the United States or a resident alien (within the meaning of Section 7701(b)(1)(A) of the Code)) if either (A) the grant of the Option is prohibited under the laws of the jurisdiction governing such Employee, or (B) compliance with the laws of the foreign jurisdiction would cause the Section 423 Component, any Offering thereunder or an Option granted thereunder to violate the requirements of Section 423 of the Code;
provided that any exclusion in clauses (x) or (y) shall be applied in an identical manner under each Offering to all Employees of the Company and all Designated Subsidiaries, in accordance with Treas. Reg. § 1.423-2(e). Notwithstanding the foregoing, with respect to the Non-Section 423 Component, the first sentence in this definition shall apply in determining who is an Eligible Employee, except (a) the Administrator may limit eligibility further within the Company or a Designated Subsidiary so as to only designate some Employees of the Company or a Designated Subsidiary as Eligible Employees, and (b) to the extent the restrictions in the first sentence in this definition are not consistent with applicable local laws, the applicable local laws shall control.
2.12 Employee means any person who renders services to the Company or a Designated Subsidiary in the status of an employee within the meaning of Section 3401(c) of the Code. Employee shall not include any director of the Company or a Designated Subsidiary who does not render services to the Company or a Designated Subsidiary in the status of an employee within the meaning of Section 3401(c) of the Code. For purposes of the Plan, the employment relationship shall be treated as continuing intact while the individual is on military leave, sick leave or other leave of absence approved by the Company or a Designated Subsidiary and meeting the requirements of Treas. Reg. § 1.421-1(h)(2). Where the period of leave exceeds three months, or such other period specified in Treas. Reg. § 1.421-1(h)(2), and the individuals right to reemployment is not guaranteed either by statute or by contract, the employment relationship shall be deemed to have terminated on the first day immediately following such three-month period, or such other period specified in Treas. Reg. § 1.421-1(h)(2).
2.13 Enrollment Date means the first date of each Offering Period.
2.14 Exercise Date means the last day of each Purchase Period, except as provided in Section 5.2 hereof.
2.15 Exchange Act means the Securities Exchange Act of 1934, as amended.
2.16 Fair Market Value means, as of any date, the value of Common Stock determined as follows:
(a) If the Common Stock is (i) listed on any established securities exchange (such as the New York Stock Exchange or Nasdaq Stock Market), (ii) listed on any national market system or (iii) listed, quoted or traded on any automated quotation system, its Fair Market Value shall be the closing sales price for a share of Common Stock as quoted on such exchange or system for such date or, if there is no closing sales price for a share of Common Stock on the date in question, the closing sales price for a share of Common Stock on the last preceding date for which such quotation exists, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;
(b) If the Common Stock is not listed on an established securities exchange, national market system or automated quotation system, but the Common Stock is regularly quoted by a recognized securities dealer, its Fair Market Value shall be the mean of the high bid and low asked prices for such date or, if there are no high bid and low asked prices for a share of Common Stock on such date, the high bid and low asked prices for a share of Common Stock on the last preceding date for which such information exists, as reported in The Wall Street Journal or such other source as the Administrator deems reliable; or
(c) If the Common Stock is neither listed on an established securities exchange, national market system or automated quotation system nor regularly quoted by a recognized securities dealer, its Fair Market Value shall be established by the Administrator in good faith.
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2.17 Grant Date means the first day of an Offering Period.
2.18 New Exercise Date has the meaning set forth in Section 5.2(b) hereof.
2.19 Non-Section 423 Component means those Offerings under the Plan, together with the sub-plans, appendices, rules or procedures, if any, adopted by the Administrator as a part of this Plan, in each case, pursuant to which Options may be granted to non-U.S. Eligible Employees that need not satisfy the requirements for Options granted pursuant to an employee stock purchase plan that are set forth under Section 423 of the Code.
2.20 Offering means an offer under the Plan of an Option that may be exercised during an Offering Period as further described in Section 4 hereof. Unless otherwise specified by the Administrator, each Offering to the Eligible Employees of the Company or a Designated Subsidiary shall be deemed a separate Offering, even if the dates and other terms of the applicable Purchase Periods of each such Offering are identical and the provisions of the Plan will separately apply to each Offering. To the extent permitted by Treas. Reg. § 1.423-2(a)(1), the terms of each separate Offering under the Section 423 Component need not be identical, provided that the terms of the Section 423 Component and an Offering thereunder together satisfy Treas. Reg. § 1.423-2(a)(2) and (a)(3).
2.21 Offering Period means each consecutive, overlapping 24 month period commencing on such dates as determined by the Board or Committee, in its discretion, and with respect to which Options shall be granted to Participants. The duration and timing of Offering Periods may be established or changed by the Board or Committee at any time, in its sole discretion. Notwithstanding the foregoing, in no event may an Offering Period exceed 27 months.
2.22 Option means the right to purchase shares of Common Stock pursuant to the Plan during each Offering Period.
2.23 Option Price means the purchase price of a share of Common Stock hereunder as provided in Section 4.2 hereof.
2.24 Parent means any entity that is a parent corporation of the Company within the meaning of Section 424 of the Code.
2.25 Participant means any Eligible Employee who elects to participate in the Plan.
2.26 Payday means the regular and recurring established day for payment of Compensation to an Employee of the Company or any Designated Subsidiary.
2.27 Plan means this 2021 Employee Stock Purchase Plan, including both the Section 423 Component and Non-Section 423 Component and any other sub-plans or appendices hereto, as amended from time to time.
2.28 Plan Account means a bookkeeping account established and maintained by the Company in the name of each Participant.
2.29 Purchase Period means each consecutive six-month period commencing on such dates as determined by the Board or Committee, in its discretion, within each Offering Period. The first Purchase Period of each Offering Period shall commence on the Grant Date and end with the next Exercise Date. The duration and timing of Purchase Periods may be established or changed by the Board or Committee at any time, in its sole discretion. Notwithstanding the foregoing, in no event may a Purchase Period exceed the duration of the Offering Period under which it is established.
2.30 Section 409A means Section 409A of the Code.
2.31 Section 423 Component means those Offerings under the Plan that are intended to meet the requirements under Section 423(b) of the Code.
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2.32 Subsidiary means any entity that is a subsidiary corporation of the Company within the meaning of Section 424 of the Code. In addition, with respect to the Non-Section 423 Component, Subsidiary shall include any corporate or noncorporate entity in which the Company has a direct or indirect equity interest or significant business relationship.
2.33 Treas. Reg. means U.S. Department of the Treasury regulations.
2.34 Withdrawal Election has the meaning set forth in Section 6.1(a) hereof.
ARTICLE 3
PARTICIPATION
3.1 Eligibility.
(a) Any Eligible Employee who is employed by the Company or a Designated Subsidiary on a given Enrollment Date for an Offering Period shall be eligible to participate in the Plan during such Offering Period, subject to the requirements of Articles 4 and 5 hereof, and, for the Section 423 Component, the limitations imposed by Section 423(b) of the Code.
(b) No Eligible Employee shall be granted an Option under the Section 423 Component which permits the Participants rights to purchase shares of Common Stock under the Plan, and to purchase stock under all other employee stock purchase plans of the Company, any Parent or any Subsidiary subject to Section 423 of the Code, to accrue at a rate which exceeds $25,000 of fair market value of such stock (determined at the time such Option is granted) for each calendar year in which such Option is outstanding at any time. The limitation under this Section 3.1(b) shall be applied in accordance with Section 423(b)(8) of the Code.
3.2 Election to Participate; Payroll Deductions
(a) Except as provided in Sections 3.2(e) and 3.3 hereof, an Eligible Employee may become a Participant in the Plan only by means of payroll deduction. Each individual who is an Eligible Employee as of an Offering Periods Enrollment Date may elect to participate in such Offering Period and the Plan by delivering to the Company a payroll deduction authorization no later than the period of time prior to the applicable Enrollment Date that is determined by the Administrator, in its sole discretion.
(b) Subject to Section 3.1(b) hereof and except as may otherwise be determined by the Administrator, payroll deductions (i) shall equal at least 1% of the Participants Compensation as of each Payday of the Offering Period following the Enrollment Date, but not more than 15% of the Participants Compensation as of each Payday of the Offering Period following the Enrollment Date; and (ii) may be expressed either as (A) a whole number percentage, or (B) a fixed dollar amount. Amounts deducted from a Participants Compensation with respect to an Offering Period pursuant to this Section 3.2 shall be deducted each Payday through payroll deduction and credited to the Participants Plan Account; provided that for the first Offering Period, payroll deductions shall not begin until such date determined by the Board or Committee, in its sole discretion.
(c)Following at least one payroll deduction, a Participant may decrease (to as low as zero) the amount deducted from such Participants Compensation only once during an Offering Period upon ten calendar days prior written notice to the Company. A Participant may not increase the amount deducted from such Participants Compensation during an Offering Period.
(d) Upon the completion of an Offering Period, each Participant in such Offering Period shall automatically participate in the immediately following Offering Period at the same payroll deduction percentage or fixed amount as in effect at the termination of such Offering Period, unless such Participant delivers to the Company a different election with respect to the successive Offering Period in accordance with Section 3.2(a) hereof, or unless such Participant becomes ineligible for participation in the Plan.
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(e) Notwithstanding any other provisions of the Plan to the contrary, in non-U.S. jurisdictions where participation in the Plan through payroll deductions is prohibited, the Administrator may provide that an Eligible Employee may elect to participate through contributions to the Participants account under the Plan in a form acceptable to the Administrator in lieu of or in addition to payroll deductions; provided, however, that, for any Offering under the Section 423 Component, the Administrator must determine that any alternative method of contribution is applied on an equal and uniform basis to all Eligible Employees in the Offering.
3.3 Leave of Absence. During leaves of absence approved by the Company meeting the requirements of Treas. Reg. § 1.421-1(h)(2), a Participant may continue participation in the Plan by making cash payments to the Company on the Participants normal payday equal to the Participants authorized payroll deduction.
ARTICLE 4
PURCHASE OF SHARES
4.1 Grant of Option. The Company may make one or more Offerings under the Plan, which may be successive or overlapping with one another, until the earlier of: (i) the date on which the shares of Common Stock available under the Plan have been sold or (ii) the date on which the Plan is suspended or terminates. The Administrator shall designate the terms and conditions of each Offering in writing, including without limitation, the Offering Period and the Purchase Periods. Each Participant shall be granted an Option with respect to an Offering Period on the applicable Grant Date. Subject to the limitations of Section 3.1(b) hereof, the number of shares of Common Stock subject to a Participants Option shall be determined by dividing (a) such Participants payroll deductions accumulated prior to an Exercise Date and retained in the Participants Plan Account on such Exercise Date by (b) the applicable Option Price; provided that in no event shall a Participant be permitted to purchase during each Offering Period more than 100,000 shares of Common Stock (subject to any adjustment pursuant to Section 5.2 hereof). The Administrator may, for future Offering Periods, increase or decrease, in its absolute discretion, the maximum number of shares of Common Stock that a Participant may purchase during such future Offering Periods. Each Option shall expire on the last Exercise Date for the applicable Offering Period immediately after the automatic exercise of the Option in accordance with Section 4.3 hereof, unless such Option terminates earlier in accordance with Article 6 hereof.
4.2 Option Price. The Option Price per share of Common Stock to be paid by a Participant upon exercise of the Participants Option on an Exercise Date for an Offering Period shall equal 85% of the lesser of the Fair Market Value of a share of Common Stock on (a) the applicable Grant Date and (b) the applicable Exercise Date, or such other price designated by the Administrator; provided that in no event shall the Option Price per share of Common Stock be less than the par value per share of the Common Stock; provided further, that no Option Price shall be designated by the Administrator that would cause the Section 423 Component to fail to meet the requirements under Section 423(b) of the Code.
4.3 Purchase of Shares.
(a) On each Exercise Date for an Offering Period, each Participant shall automatically and without any action on such Participants part be deemed to have exercised the Participants Option to purchase at the applicable per share Option Price the largest number of whole shares of Common Stock which can be purchased with the amount in the Participants Plan Account. Any balance less than the per share Option Price that is remaining in the Participants Plan Account (after exercise of such Participants Option) as of the Exercise Date shall be carried forward to the next Purchase Period or Offering Period, unless the Participant has elected to withdraw from the Plan pursuant to Section 6.1 hereof or, pursuant to Section 6.2 hereof, such Participant has ceased to be an Eligible Employee. Any balance not carried forward to the next Purchase Period or Offering Period in accordance with the prior sentence shall be promptly refunded to the applicable Participant. In no event shall an amount greater than or equal to the per share Option Price as of an Exercise Date be carried forward to the next Purchase Period or Offering Period.
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(b) As soon as practicable following each Exercise Date, the number of shares of Common Stock purchased by such Participant pursuant to Section 4.3(a) hereof shall be delivered (either in share certificate or book entry form), in the Companys sole discretion, to either (i) the Participant or (ii) an account established in the Participants name at a stock brokerage or other financial services firm designated by the Company. If the Company is required to obtain from any commission or agency authority to issue any such shares of Common Stock, the Company shall seek to obtain such authority. Inability of the Company to obtain from any such commission or agency authority which counsel for the Company deems necessary for the lawful issuance of any such shares shall relieve the Company from liability to any Participant except to refund to the Participant such Participants Plan Account balance, without interest thereon.
4.4 Automatic Termination of Offering Period. If the Fair Market Value of a share of Common Stock on any Exercise Date (except the final scheduled Exercise Date of any Offering Period) is lower than the Fair Market Value of a share of Common Stock on the Grant Date for an Offering Period, then such Offering Period shall terminate on such Exercise Date after the automatic exercise of the Option in accordance with Section 4.3 hereof, and each Participant shall automatically be enrolled in the Offering Period that commences immediately following such Exercise Date and such Participants payroll deduction authorization shall remain in effect for such Offering Period.
4.5 Transferability of Rights. An Option granted under the Plan shall not be transferable, other than by will or the applicable laws of descent and distribution, and is exercisable during the Participants lifetime only by the Participant. No option or interest or right to the Option shall be available to pay off any debts, contracts or engagements of the Participant or the Participants successors in interest or shall be subject to disposition by 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 attempt at disposition of the Option shall have no effect.
ARTICLE 5
PROVISIONS RELATING TO COMMON STOCK
5.1 Common Stock Reserved. Subject to adjustment as provided in Section 5.2 hereof, the maximum number of shares of Common Stock that shall be made available for sale under the Plan shall be the sum of (a) 6,653,530 shares and (b) an annual increase on the first day of each year beginning in 2022 and ending in 2031 equal to the lesser of (i) 0.5% of the shares outstanding (on an as converted basis) on the last day of the immediately preceding fiscal year and (ii) such number of shares as may be determined by the Board; provided, however, no more than 49,901,478 shares may be issued under the Plan. Shares made available for sale under the Plan may be authorized but unissued shares, treasury shares of Common Stock, or reacquired shares reserved for issuance under the Plan.
5.2 Adjustments Upon Changes in Capitalization, Dissolution, Liquidation, Merger or Asset Sale.
(a) Changes in Capitalization. Subject to any required action by the stockholders of the Company, the number of shares of Common Stock which have been authorized for issuance under the Plan but not yet placed under Option, as well as the price per share and the number of shares of Common Stock covered by each Option under the Plan which has not yet been exercised shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Common Stock, or any other increase or decrease in the number of shares
of Common Stock effected without receipt of consideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been effected without receipt of consideration. Such adjustment shall be made by the Administrator, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of
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stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Offering Periods then in progress shall be shortened by setting a new Exercise Date (the New Exercise Date), and shall terminate immediately prior to the consummation of such proposed dissolution or liquidation, unless provided otherwise by the Administrator. The New Exercise Date shall be before the date of the Companys proposed dissolution or liquidation. The Administrator shall notify each Participant in writing prior to the New Exercise Date, that the Exercise Date for the Participants Option has been changed to the New Exercise Date and that the Participants Option shall be exercised automatically on the New Exercise Date, unless prior to such date the Participant has withdrawn from the Offering Period as provided in Section 6.1 hereof or the Participant has ceased to be an Eligible Employee as provided in Section 6.2 hereof.
(c) Merger or Asset Sale. In the event of a proposed sale of all or substantially all of the assets of the Company, or the merger of the Company with or into another corporation, each outstanding Option shall be assumed or an equivalent Option substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. If the successor corporation refuses to assume or substitute for the Option, any Offering Periods then in progress shall be shortened by setting a New Exercise Date and any Offering Periods then in progress shall end on the New Exercise Date. The New Exercise Date shall be before the date of the Companys proposed sale or merger. The Administrator shall notify each Participant in writing prior to the New Exercise Date, that the Exercise Date for the Participants Option has been changed to the New Exercise Date and that the Participants Option shall be exercised automatically on the New Exercise Date, unless prior to such date the Participant has withdrawn from the Offering Period as provided in Section 6.1 hereof or the Participant has ceased to be an Eligible Employee as provided in Section 6.2 hereof.
5.3 Insufficient Shares. If the Administrator determines that, on a given Exercise Date, the number of shares of Common Stock with respect to which Options are to be exercised may exceed the number of shares of Common Stock remaining available for sale under the Plan on such Exercise Date, the Administrator shall make a pro rata allocation of the shares of Common Stock available for issuance on such Exercise Date in as uniform a manner as shall be practicable and as it shall determine in its sole discretion to be equitable among all Participants exercising Options to purchase Common Stock on such Exercise Date, and unless additional shares are authorized for issuance under the Plan, no further Offering Periods shall take place and the Plan shall terminate pursuant to Section 7.5 hereof. If an Offering Period is so terminated, then the balance of the amount credited to the Participants Plan Account which has not been applied to the purchase of shares of Common Stock shall be paid to such Participant in one lump sum in cash within 30 days after such Exercise Date, without any interest thereon.
5.4 Rights as Stockholders. With respect to shares of Common Stock subject to an Option, a Participant shall not be deemed to be a stockholder of the Company and shall not have any of the rights or privileges of a stockholder. A Participant shall have the rights and privileges of a stockholder of the Company when, but not until, shares of Common Stock have been deposited in the designated brokerage account following exercise of the Participants Option.
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ARTICLE 6
TERMINATION OF PARTICIPATION
6.1 Cessation of Contributions; Voluntary Withdrawal.
(a) A Participant may cease payroll deductions during an Offering Period and elect to withdraw from the Plan by delivering written notice of such election to the Company in such form and at such time prior to the Exercise Date for such Offering Period as may be established by the Administrator (a Withdrawal Election). A Participant electing to withdraw from the Plan may elect to either (i) withdraw all of the funds then credited to the Participants Plan Account as of the date on which the Withdrawal Election is received by the Company, in which case amounts credited to such Plan Account shall be returned to the Participant in one lump-sum payment in cash within 30 days after such election is received by the Company, without any interest thereon, and the Participant shall cease to participate in the Plan and the Participants Option for such Offering Period shall terminate; or (ii) exercise the Option for the maximum number of whole shares of Common Stock on the applicable Exercise Date with any remaining Plan Account balance returned to the Participant in one lump-sum payment in cash within 30 days after such Exercise Date, without any interest thereon, and after such exercise cease to participate in the Plan. Upon receipt of a Withdrawal Election, the Participants payroll deduction authorization and the Participants Option shall terminate.
(b) A Participants withdrawal from the Plan shall not have any effect upon the Participants eligibility to participate in any similar plan which may hereafter be adopted by the Company or in succeeding Offering Periods which commence after the termination of the Offering Period from which the Participant withdraws.
(c) A Participant who ceases contributions to the Plan during any Offering Period shall not be permitted to resume contributions to the Plan during that Offering Period.
6.2 Termination of Eligibility. Upon a Participants ceasing to be an Eligible Employee, for any reason, such Participants Option for the applicable Offering Period shall automatically terminate, the Participant shall be deemed to have elected to withdraw from the Plan, and such Participants Plan Account shall be paid to such Participant or, in the case of the Participants death, to the person or persons entitled thereto pursuant to applicable law, within 30 days after such cessation of being an Eligible Employee, without any interest thereon. If a Participant transfers employment from the Company or any Designated Subsidiary participating in the Section 423 Component to any Designated Subsidiary participating in the Non-Section 423 Component, such transfer shall not be treated as a termination of employment, but the Participant shall immediately cease to participate in the Section 423 Component; however, any contributions made for the Offering Period in which such transfer occurs shall be transferred to the Non-Section 423 Component, and such Participant shall immediately join the then-current Offering under the Non-Section 423 Component upon the same terms and conditions in effect for the Participants participation in the Section 423 Component, except for such modifications otherwise applicable for Participants in such Offering. A Participant who transfers employment from any Designated Subsidiary participating in the Non-Section 423 Component to the Company or any Designated Subsidiary participating in the Section 423 Component shall not be treated as terminating the Participants employment and shall remain a Participant in the Non-Section 423 Component until the earlier of (i) the end of the current Offering Period under the Non-Section 423 Component, or (ii) the Enrollment Date of the first Offering Period in which the Participant is eligible to participate following such transfer. Notwithstanding the foregoing, the Administrator may establish different rules to govern transfers of employment between companies participating in the Section 423 Component and the Non-Section 423 Component, consistent with the applicable requirements of Section 423 of the Code.
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ARTICLE 7
GENERAL PROVISIONS
7.1 Administration.
(a) The Plan shall be administered by the Committee, which shall be composed of members of the Board. The Committee may delegate administrative tasks under the Plan to the services of an Agent or Employees to assist in the administration of the Plan, including establishing and maintaining an individual securities account under the Plan for each Participant.
(b) It shall be the duty of the Administrator to conduct the general administration of the Plan in accordance with the provisions of the Plan. The Administrator shall have the power, subject to, and within the limitations of, the express provisions of the Plan:
(i) To establish and terminate Offerings;
(ii) To determine when and how Options shall be granted and the provisions and terms of each Offering (which need not be identical);
(iii) To select Designated Subsidiaries in accordance with Section 7.2 hereof;
(iv) To impose a mandatory holding period pursuant to which Participants may not dispose of or transfer shares of Common Stock purchased under the Plan for a period of time determined by the Administrator in its discretion; and
(v) To construe and interpret the Plan, the terms of any Offering and the terms of the Options and to adopt such rules for the administration, interpretation, and application of the Plan as are consistent therewith and to interpret, amend or revoke any such rules. The Administrator, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan, any Offering or any Option, in a manner and to the extent it shall deem necessary or expedient to administer the Plan, subject to Section 423 of the Code for the Section 423 Component.
(c) The Administrator may adopt rules or procedures relating to the operation and administration of the Plan to accommodate the specific requirements of local laws and procedures. Without limiting the generality of the foregoing, the Administrator is specifically authorized to adopt rules and procedures regarding handling of participation elections, payroll deductions, payment of interest, conversion of local currency, payroll tax, withholding procedures and handling of stock certificates which vary with local requirements. In its absolute discretion, the Board may at any time and from time to time exercise any and all rights and duties of the Administrator under the Plan.
(d) The Administrator may adopt sub-plans applicable to particular Designated Subsidiaries or locations, which sub-plans may be designed to be outside the scope of Section 423 of the Code. The rules of such sub-plans may take precedence over other provisions of this Plan, with the exception of Section 5.1 hereof, but unless otherwise superseded by the terms of such sub-plan, the provisions of this Plan shall govern the operation of such sub-plan.
(e) All expenses and liabilities incurred by the Administrator in connection with the administration of the Plan shall be borne by the Company. The Administrator may, with the approval of the Committee, employ attorneys, consultants, accountants, appraisers, brokers or other persons. The Administrator, the Company and its officers and directors shall be entitled to rely upon the advice, opinions or valuations of any such persons. All actions taken and all interpretations and determinations made by the Administrator in good faith shall be final and binding upon all Participants, the Company and all other interested persons. No member of the Board or
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Administrator shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the options, and all members of the Board or Administrator shall be fully protected by the Company in respect to any such action, determination, or interpretation.
7.2 Designation of Subsidiary Corporations. The Board or Administrator shall designate from time to time the Subsidiaries that shall constitute Designated Subsidiaries, and determine whether such Designated Subsidiaries shall participate in the Section 423 Component or Non-Section 423 Component. The Board or Administrator may designate a Subsidiary, or terminate the designation of a Subsidiary, without the approval of the stockholders of the Company.
7.3 Reports. Individual accounts shall be maintained for each Participant in the Plan. Statements of Plan Accounts shall be given to Participants at least annually, which statements shall set forth the amounts of payroll deductions, the Option Price, the number of shares purchased and the remaining cash balance, if any.
7.4 No Right to Employment. Nothing in the Plan shall be construed to give any person (including any Participant) the right to remain in the employ of the Company, a Parent or a Subsidiary or to affect the right of the Company, any Parent or any Subsidiary to terminate the employment of any person (including any Participant) at any time, with or without cause, which right is expressly reserved.
7.5 Amendment and Termination of the Plan.
(a) The Board may, in its sole discretion, amend, suspend or terminate the Plan at any time and from time to time. To the extent necessary to comply with Section 423 of the Code (or any successor rule or provision), with respect to the Section 423 Component, or any other applicable law, regulation or stock exchange rule, the Company shall obtain stockholder approval of any such amendment to the Plan in such a manner and to such a degree as required by Section 423 of the Code or such other law, regulation or rule.
(b) If the Administrator determines that the ongoing operation of the Plan may result in unfavorable financial accounting consequences, the Administrator may in its discretion modify or amend the Plan to reduce or eliminate such accounting consequence including, but not limited to:
(i) altering the Option Price for any Offering Period including an Offering Period underway at the time of the change in Option Price;
(ii) shortening any Offering Period so that the Offering Period ends on a new Exercise Date, including an Offering Period underway at the time of the Administrator action; and
(iii) allocating shares of Common Stock.
Such modifications or amendments shall not require stockholder approval or the consent of any Participant.
(c) Upon termination of the Plan, the balance in each Participants Plan Account shall be refunded as soon as practicable after such termination, without any interest thereon.
7.6 Use of Funds; No Interest Paid. All funds received by the Company by reason of purchase of shares of Common Stock under the Plan shall be included in the general funds of the Company free of any trust or other restriction and may be used for any corporate purpose. No interest shall be paid to any Participant or credited under the Plan.
7.7 Term; Approval by Stockholders. No Option may be granted during any period of suspension of the Plan or after termination of the Plan. The Plan shall be submitted for the approval of the Companys stockholders within 12 months after the date of the Boards initial adoption of the Plan. Options may be granted prior to such
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stockholder approval; provided, however, that such Options shall not be exercisable prior to the time when the Plan is approved by the stockholders; provided, further that if such approval has not been obtained by the end of the 12-month period, all Options previously granted under the Plan shall thereupon terminate and be canceled and become null and void without being exercised.
7.8 Effect Upon Other Plans. The adoption of the Plan shall not affect any other compensation or incentive plans in effect for the Company, any Parent or any Subsidiary. Nothing in the Plan shall be construed to limit the right of the Company, any Parent or any Subsidiary (a) to establish any other forms of incentives or compensation for Employees of the Company or any Parent or any Subsidiary, or (b) to grant or assume Options otherwise than under the Plan in connection with any proper corporate purpose, including, but not by way of limitation, the grant or assumption of options in connection with the acquisition, by purchase, lease, merger, consolidation or otherwise, of the business, stock or assets of any corporation, firm or association.
7.9 Conformity to Securities Laws. Notwithstanding any other provision of the Plan, the Plan and the participation in the Plan by any individual who is then subject to Section 16 of the Exchange Act shall be subject to any additional limitations set forth in any applicable exemption 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, the Plan shall be deemed amended to the extent necessary to conform to such applicable exemptive rule.
7.10 Notice of Disposition of Shares. Each Participant shall give the Company prompt notice of any disposition or other transfer of any shares of Common Stock, acquired pursuant to the exercise of an Option granted under the Section 423 Component, if such disposition or transfer is made (a) within two years after the applicable Grant Date or (b) within one year after the transfer of such shares of Common Stock to such Participant upon exercise of such Option. The Company may direct that any certificates evidencing shares acquired pursuant to the Plan refer to such requirement.
7.11 Tax Withholding. The Company or any Parent or any Subsidiary shall be entitled to require payment in cash or deduction from other compensation payable to each Participant of any sums required by federal, state or local tax law to be withheld with respect to any purchase of shares of Common Stock under the Plan or any sale of such shares.
7.12 Governing Law. The Plan and all rights and obligations thereunder shall be construed and enforced in accordance with the laws of the State of Delaware, without regard to the conflict of law rules thereof or of any other jurisdiction.
7.13 Notices. All notices or other communications by a Participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.
7.14 Conditions To Issuance of Shares.
(a) Notwithstanding anything herein to the contrary, the Company shall not be required to issue or deliver any certificates or make any book entries evidencing shares of Common Stock pursuant to the exercise of an Option by a Participant, unless and until the Board or the Committee has determined, with advice of counsel, that the issuance of such shares of Common Stock is in compliance with all applicable laws, regulations of governmental authorities and, if applicable, the requirements of any securities exchange or automated quotation system on which the shares of Common Stock are listed or traded, and the shares of Common Stock are covered by an effective registration statement or applicable exemption from registration. In addition to the terms and conditions provided herein, the Board or the Committee may require that a Participant make such reasonable covenants, agreements, and representations as the Board or the Committee, in its discretion, deems advisable in order to comply with any such laws, regulations, or requirements.
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(b) All certificates for shares of Common Stock delivered pursuant to the Plan and all shares of Common Stock issued pursuant to book entry procedures are subject to any stop-transfer orders and other restrictions as the Committee deems necessary or advisable to comply with federal, state, or foreign securities or other laws, rules and regulations and the rules of any securities exchange or automated quotation system on which the shares of Common Stock are listed, quoted, or traded. The Committee may place legends on any certificate or book entry evidencing shares of Common Stock to reference restrictions applicable to the shares of Common Stock.
(c) The Committee shall have the right to require any Participant to comply with any timing or other restrictions with respect to the settlement, distribution or exercise of any Option, including a window-period limitation, as may be imposed in the sole discretion of the Committee.
(d) Notwithstanding any other provision of the Plan, unless otherwise determined by the Committee or required by any applicable law, rule or regulation, the Company may, in lieu of delivering to any Participant certificates evidencing shares of Common Stock issued in connection with any Option, record the issuance of shares of Common Stock in the books of the Company (or, as applicable, its transfer agent or stock plan administrator).
7.15 Equal Rights and Privileges. All Eligible Employees of the Company (or of any Designated Subsidiary) granted Options pursuant to an Offering under the Section 423 Component shall have equal rights and privileges under this Plan to the extent required under Section 423 of the Code so that the Section 423 Component qualifies as an employee stock purchase plan within the meaning of Section 423 of the Code. Any provision of the Section 423 Component that is inconsistent with Section 423 of the Code shall, without further act or amendment by the Company or the Board, be reformed to comply with the equal rights and privileges requirement of Section 423 of the Code. Eligible Employees participating in the Non-Section 423 Component need not have the same rights and privileges as Eligible Employees participating in the Section 423 Component.
7.16 Rules Particular to Specific Countries. Notwithstanding anything herein to the contrary, the terms and conditions of the Plan with respect to Participants who are tax residents of a particular non-U.S. country or who are foreign nationals or employed in non-U.S. jurisdictions may be subject to an addendum to the Plan in the form of an appendix or sub-plan (which appendix or sub-plan may be designed to govern Offerings under the Section 423 Component or the Non-Section 423 Component, as determined by the Administrator). To the extent that the terms and conditions set forth in an appendix or sub-plan conflict with any provisions of the Plan, the provisions of the appendix or sub-plan shall govern. The adoption of any such appendix or sub-plan shall be pursuant to Section 7.1 above. Without limiting the foregoing, the Administrator is specifically authorized to adopt rules and procedures, with respect to Participants who are foreign nationals or employed in non-U.S. jurisdictions, regarding the exclusion of particular Subsidiaries from participation in the Plan, eligibility to participate, the definition of Compensation, handling of payroll deductions or other contributions by Participants, payment of interest, conversion of local currency, data privacy security, payroll tax, withholding procedures, establishment of bank or trust accounts to hold payroll deductions or contributions.
7.17 Section 409A. The Section 423 Component of the Plan and the Options granted pursuant to Offerings thereunder are intended to be exempt from the application of Section 409A. Neither the Non-Section 423 Component nor any Option granted pursuant to an Offering thereunder is intended to constitute or provide for nonqualified deferred compensation within the meaning of Section 409A. Notwithstanding any provision of the Plan to the contrary, if the Administrator determines that any Option granted under the Plan may be or become subject to Section 409A or that any provision of the Plan may cause an Option granted under the Plan to be or become subject to Section 409A, the Administrator may adopt such amendments to the Plan and/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 to avoid the imposition of taxes under Section 409A, either through compliance with the requirements of Section 409A or with an available exemption therefrom.
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Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use in this Registration Statement on Form S-1 of our report dated April 1, 2021, relating to the financial statements of Joby Aero, Inc. We also consent to the reference to us under the heading Experts in such Registration Statement.
/s/ Deloitte & Touche LLP
San Jose, California
August 16, 2021