Exhibit 10.16
MIND MEDICINE (MINDMED) INC.
PERFORMANCE AND RESTRICTED SHARE UNIT PLAN
The Plan described in this document shall be called the “Performance and Restricted Share Unit Plan”.
In the event of any conflict or inconsistency between the Plan described in this document and the Award Agreement (as defined below), the terms and conditions of the Award Agreement shall prevail.
The Plan shall be governed and interpreted in accordance with the laws of the Province of Ontario.
The purposes of the Plan are:
Unless extended by the Board and approved by the Corporation’s shareholders, the Plan will automatically terminate February 19, 2030 which is the date that is ten years following the earlier of (i) the date of adoption by the Board and (ii) approval by the Corporation’s shareholders.
ADDENDUM
TO THE
MIND MEDICINE (MINDMED) INC.
(formerly Broadway Gold Mining Ltd.)
PERFORMANCE AND RESTRICTED SHARE UNIT PLAN
SPECIAL PROVISIONS FOR U.S. PARTICIPANTS
The provisions of this Addendum apply only to U.S. citizens, U.S. permanent residents or any other persons whose Award PSUs or Award RSUs are subject to U.S. Federal Income Tax (“U.S. Participants”) at the relevant time.
This Addendum modifies the Plan for U.S. Participants and where there is any conflict between the Plan and the terms of this Addendum, the terms of this Addendum shall prevail.
1. | Title and Conflict | All Award PSUs and Award RSUs issued under the Plan to U.S. Participants are intended to be exempt from and avoid the penalties imposed by Section 409A, and, to the extent not so exempt, in compliance with the requirements of Section 409A, and all provisions hereunder shall be read, interpreted, and applied with that purpose in mind. The provisions of the Award Agreement applicable to any U.S. Participant shall reflect this intention. If the Board determines that any award granted under the Plan is not exempt from and is therefore subject to Section 409A, the Award Agreement will incorporate the terms and conditions necessary to avoid the consequences specified in Section 409A(a)(1) of the Code, and to the extent an Award Agreement is silent on terms necessary for compliance, such terms are hereby incorporated by reference into the Award Agreement. |
2. | Definitions |
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| “Change in Control” | “Change in Control” means a transaction described in Section 1.3.9 of the Plan, but only to the extent that such a transaction constitutes a “change in the ownership of a corporation, a change in the effective control of a corporation, or a change in the ownership of a substantial portion of a corporation’s assets, as defined in U.S. Treasury Regulation Section 1.409A-3(i)(5) under Section 409A. |
| “Market Value” | “Market Value” shall have the meaning as to U.S. Participants as specified in Section 1.3.14 of the Plan. |
| “Section 409A” | “Section 409A” means section 409A of the U.S. Tax Code and any successor thereto. |
| “Separation from Service” | “Separation from Service” means a “separation from service” for purposes of Section 409A(a)(2)(A)(i) of the U.S. Tax Code. |
| “Specified Employee” | “Specified Employee” means a “specified employee” as determined in a manner that complies with Section 409A(2)(B)(i) of the U.S. Tax Code. |
| “U.S. Tax Code” | “U.S. Tax Code” means the United States Internal Revenue Code of 1986, as amended, and the regulations and guidance issued under it from time to time. |
3. | Payment | The Award Agreement shall state the Vesting Date. It is intended that the vesting conditions for the award shall constitute a “substantial risk of forfeiture” within the meaning of Section 409A and that PSUs and RSUs will be exempt from Section 409A under U.S. Treasury Regulation section 1.409A-1(b)(4) to the maximum extent permissible. Sections 7.4 and 7.5 and all other provisions of the Plan shall be interpreted and administered such that RSUs and PSUs will be settled and paid out by March 15th of the calendar year following the calendar year in which such RSUs and PSUs are not, or are no longer, subject to a substantial risk of forfeiture, unless otherwise specifically provided by the Award Agreement and in a manner that complies with the requirements under Section 409A. Further, for greater certainty, where a U.S. Participant experiences a Period of Absence as described in Section 7.6.4 of the Plan, PSUs and RSUs will be subject to forfeiture until the date that the U.S. Participant returns to active full-time employment within 180 days following the end of the Performance Period, or the Vesting Date for RSUs, as applicable. However, to the extent that any PSU or RSU awarded would constitute “non-qualified deferred compensation” that is subject to Section 409A, then the following terms shall apply to such award unless otherwise provided in the Award Agreement: Notwithstanding Sections 7.4 or 7.5 to the contrary, payment of Vested PSUs or Vested RSUs shall be made to the U.S. Participant or his legal representative, as applicable, in a single lump sum, less any applicable statutory withholdings or deductions , during the calendar year immediately following the calendar year in which the Performance Period ends or the Vesting Date occurs (or, in the event of the Participant’s death, payment of Vested RSUs shall be made in the calendar year following the calendar year of the Participant’s death). Neither the Board, the Corporation nor its directors, officers or employees make any representations or warranties regarding the tax treatment of any payments under the Plan and none of them shall be held liable for any taxes, interest, penalties or other monetary amounts owed by a U.S. Participant as a result of the application of Section 409A. Notwithstanding any contrary provision set forth in the Plan (and, in particular, in Section 7 of the Plan) , the payment of any amounts due under the Plan subject to Section 409A shall be made in compliance with Section 409A and shall not be accelerated except as otherwise permitted under Section 409A. Where applicable to avoid violation of Section 409A, any reference to or requirement relating to the termination or cessation of a U.S. Participant’s employment shall instead refer to or require such U.S. Participant’s Separation from Service. If required for Award PSUs or Award RSUs subject to Section 409A, if any Award Agreement requires payment upon Separation from Service, then a Specified Employee’s payment shall be delayed until a date that is six months following the date of the U.S. Participant’s Separation from service (or, if earlier, the date of death of the U.S. Participant). |
4. | Change in Control | Section 7.8 of the Plan (“Change in Control”) shall apply to Award PSUs and Award RSUs that constitute deferred compensation under Section 409A held by a U.S. Participant only if the Change in Control constitutes a Change in Control as defined in this Addendum. With respect to a transaction that constitutes a Change |
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| in Control under Section 7.8 of the Plan but does not constitute a Change in Control as defined in this Addendum, to the extent so provided by the Plan, unless otherwise determined not to become vested by the Board, all unvested PSUs and RSUs shall become fully vested (shall become Vested PSUs and Vested RSUs), but the payment of such rights shall be in the Award Agreement. |