Exhibit 10.6
AMBRX BIOPHARMA, INC.
SECOND AMENDED AND RESTATED
2016 EQUITY INCENTIVE PLAN
(As Amended and Restated effective October 11, 2023)
ARTICLE 1.
PURPOSE
ARTICLE 2.
DEFINITIONS AND CONSTRUCTION
Wherever the following terms are used in the Plan they shall have the meanings specified below, unless the context clearly indicates otherwise. The singular pronoun shall include the plural where the context so indicates.
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time.
Company;
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the members of the Board; provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Plan, be considered as a member of the Incumbent Board;
Notwithstanding the foregoing, the following events shall not constitute a “Corporate Transaction”: (i) a transaction (other than a sale of all or substantially all of the Company’s assets) in which the holders of the voting securities of the Company immediately prior to the merger or consolidation or a Related Entity hold, directly or indirectly, at least a majority of the voting securities in the successor company or its parent immediately after the merger or consolidation; (ii) a sale, lease, exchange or other transaction in one transaction or a series of related transactions of all or substantially all of the Company’s assets to a Related Entity; (iii) an initial public offering of any of the Company’s securities or any other transaction or series of related transactions principally for bona fide equity financing purposes; (iv) a reincorporation of the Company solely to change its jurisdiction; or (v) a transaction undertaken for the primary purpose of creating a holding company that will be owned in substantially the same proportion, directly or indirectly, by the persons who held the Company’s securities immediately before such transaction or a Related Entity.
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of such closing sale process as determined by the Administrator, or (v) such other methodologies or information as the Administrator determines to be indicative of Fair Market Value.
(iii) a relocation of the Holder’s place of employment by more than fifty (50) miles; provided that such change, reduction or relocation is effected by the Company (or its Parent or Subsidiary employing the Holder) without the Holder’s consent.
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The Administrator, in its sole discretion, shall determine the effect of all matters and questions relating to Terminations of Service, including, without limitation, the question of 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; provided, however, that, with respect to Incentive Options, unless the Administrator otherwise provides in the terms of the Award Agreement or otherwise, a leave of absence, change in status from an employee to an independent contractor or other change in the employee-employer relationship shall constitute a Termination of Service only if, and to the extent that, such leave of absence, change in status or other change interrupts employment for the purposes of Section 422(a)(2) of the Code
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and the then applicable regulations and revenue rulings under said Section. For purposes of the Plan, a Holder’s employee-employer relationship or consultancy relations shall be deemed to be terminated in the event that the Service Recipient employing or contracting with such Holder ceases to remain a Parent or Subsidiary following any merger, sale of securities or other corporate transaction or event (including, without limitation, a spin-off).
ARTICLE 3.
SHARES SUBJECT TO THE PLAN
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quotation systems, then the Committee may distribute such depository receipts representing an amount equal to the number of Shares which otherwise would be distributed pursuant to an Award in lieu of Shares in settlement of any Award. If the number of Shares represented by a depository receipt is other than on a one-to-one basis, the limitations of Section 3.1 shall be adjusted to reflect the distribution of depository receipts in lieu of Shares. All Shares acquired by an Eligible Individual are subject to the terms of the Charter and the Bylaws, in each case, as in force at the time of issue and as amended from time to time.
ARTICLE 4.
GRANTING OF AWARDS
(b) determine which Eligible Individuals are eligible to participate in the Plan; (c) modify the terms and conditions of any Award granted to Eligible Individuals to comply with Applicable Laws; (d) establish subplans and modify exercise procedures and other terms and procedures, to the extent such actions may be necessary or advisable (any such subplans and/or modifications shall be attached to the Plan as appendices); provided, however, that no such subplans and/or modifications shall increase the share limitations contained in Section 3.1; and (e) take any action, before or after an Award is made, that it deems advisable to obtain approval or comply with any Applicable Laws including necessary local governmental regulatory exemptions or approvals or listing requirements of any such securities exchange. Notwithstanding the foregoing, the Administrator may not take any actions hereunder, and no Awards shall be granted, that would violate the any Applicable Laws.
ARTICLE 5.
OPTIONS
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may be exercised. Options may only be exercised in compliance with all Applicable Laws regarding insider trading and market abuses, as well as, the Company’s insider trading policy and the market trading blackout periods included therein.
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ARTICLE 6.
AWARDS OF RESTRICTED SHARES
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combination at such times and pursuant to such circumstances or based on such criteria as selected by the Administrator, including, without limitation, criteria based on the Holder’s duration of employment, directorship or consultancy with the Service Recipient, or other criteria selected by the Administrator. By action taken after the Restricted Shares are issued, the Administrator may, on such terms and conditions as it may determine to be appropriate, accelerate the vesting of such Restricted Shares by removing any or all of the restrictions imposed by the terms of the Award Agreement. Restricted Share may not be sold or encumbered until all restrictions are terminated or expire.
ARTICLE 7.
OTHER AWARDS
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deferred, on a mandatory basis or at the election of the Holder, in a manner that complies with Section 409A.
ARTICLE 8.
ADDITIONAL TERMS OF AWARDS
Tax Withholding. No Shares shall be delivered under the Plan to any Holder until such Holder has made arrangements acceptable to the Administrator for the satisfaction of any income, employment, social welfare or other tax withholding obligations under Applicable Laws. Each Service Recipient shall have the authority and the right to deduct or withhold, or require a Holder to remit to the applicable Service Recipient, an amount sufficient to satisfy federal, state, local and foreign taxes (including
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the Holder’s employment, social welfare or other tax obligations) required by Applicable Laws to be withheld with respect to any taxable event concerning a Holder arising as a result of the Plan. The Administrator may in its sole discretion and in satisfaction of the foregoing requirement allow a Holder to satisfy such tax obligations, subject to Section 8.8, any Company insider trading policy (including blackout periods) and Applicable Laws, to the extent permitted by the Administrator, (a) in whole or in part by delivery of Shares, including Shares retained by the Company from the Award creating the tax obligation, valued at their Fair Market Value, and (b) with respect to Awards granted on or after August 2, 2019 (which is the date of the first amendment and restatement of the 2016 Plan), following the first Trading Date, unless the Administrator otherwise determines, through (i) delivery (including, without limitation, telephonically to the extent permitted by the Company) of an irrevocable and unconditional undertaking by a broker acceptable to the Company to deliver promptly to the Company sufficient funds to satisfy the tax obligations, or (ii) delivery (including, without limitation, telephonically to the extent permitted by the Company) by the Holder to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Company to deliver promptly to the Company cash or a check sufficient to satisfy the tax withholding; provided that such amount is paid to the Company at such time as may be required by the Administrator. The number of Shares which may be so withheld or surrendered shall be limited to the number of Shares which have a Fair Market Value on the date of withholding or repurchase equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for tax purposes that are applicable to such taxable income. The Administrator shall determine the Fair Market Value of the Shares, consistent with Applicable Laws, for tax withholding obligations due in connection with a broker-assisted cashless Option exercise involving the sale of shares to pay the Option exercise price or any tax withholding obligation. The Company may, to the extent permitted by Applicable Laws, deduct any such tax obligations from any payment of any kind otherwise due to a Holder.
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(iii) the Holder incurs a Termination of Service for “cause” (as such term is defined in the sole discretion of the Administrator, or as set forth in a written agreement relating to such Award between the Company and the Holder).
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Company in the implementation, administration and management of the Plan. These recipients may be located in the Holder’s country, or elsewhere, and the Holder’s country may have different data privacy laws and protections than the recipients’ country. Through acceptance of an Award, each Holder authorizes such recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Holder’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Company or the Holder may elect to deposit any Shares. The Data related to a Holder will be held only as long as is necessary to implement, administer, and manage the Holder’s participation in the Plan. A Holder may, at any time, view the Data held by the Company with respect to such Holder, request additional information about the storage and processing of the Data with respect to such Holder, recommend any necessary corrections to the Data with respect to the Holder or refuse or withdraw the consents herein in writing, in any case without cost, by contacting his or her local human resources representative. The Company may cancel a Holder’s ability to participate in the Plan and, in the Administrator’s discretion, the Holder may forfeit any outstanding Awards if the Holder refuses or withdraws his or her consents as described herein. A Holder may contact their local human resources department for more information on the consequences of refusal to consent or withdrawal of consent.
ARTICLE 9.
ADMINISTRATION
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Recipient, the Company’s independent certified public accountants, or any executive compensation consultant or other professional retained by the Company to assist in the administration of the Plan.
Holder;
Agreement; and
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the delegatee appointed under this Section 9.6 shall serve in such capacity at the pleasure of the Board and the Committee.
ARTICLE 10.
MISCELLANEOUS PROVISIONS
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authority as may, in the opinion of counsel for the Company, be necessary or advisable in connection therewith. Any securities delivered under the Plan shall be subject to such restrictions, and the person acquiring such securities shall, if requested by the Company, provide such assurances and representations to the Company as the Company may deem necessary or desirable to assure compliance with all applicable legal requirements. To the extent permitted by Applicable Laws, the Plan and Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to such Applicable Laws.
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ARTICLE 11.
CHANGES IN CAPITAL STRUCTURE
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___Incentive Option | Holder: _______________________________ |
____Non-Qualified Option | Date: _______________________________ |
AMBRX BIOPHARMA, INC. SECOND AMENDED AND RESTATED
2016 EQUITY INCENTIVE PLAN OPTION EXERCISE NOTICE
Ambrx Biopharma, Inc.
Ladies and Gentlemen:
Option Grant Number: | |
Date of Option Grant: | |
Number of Shares: | |
Exercise Price per Share: | $ |
Total Shares Purchased: | |
Total Exercise Price (Total Shares X Price per Share) | $ |
☐ Cash: | $ |
☐ Check: | $ |
☐ Other: | Contract Administrator |
(Contact Administrator for amount of tax due.)
☐ Cash: | $ |
☐ Check: | $ |
☐ Other: | Contact Administrator |
My address is: |
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My Social Security Number is: |
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Very truly yours,
_______________________________________
(Signature)
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