As filed with the Securities and Exchange Commission
on March 1, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
LIVERAMP HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware |
83-1269307 |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
225 Bush Street, Seventeenth Floor
San Francisco, CA |
94104 |
(Address of Principal Executive Offices) |
(Zip Code) |
HABU, INC. 2018 Stock Plan 1
(Full title of the plan)
Jerry C. Jones, Esq.
EVP, Chief Ethics and Legal Officer and Secretary
225 Bush Street, Seventeenth Floor
San Francisco, CA 94104
(Name and address of agent for service)
(888) 987-6764
(Telephone number, including area code, of agent
for service)
Please send copies of all communications
to:
Jeremy L. Moore
Baker & McKenzie LLP
800 Capitol, Suite 2100
Houston, Texas 77002
(713) 427-5000 |
Geoffrey D. Neal
Kutak Rock LLP
124 West Capitol Avenue, Suite 2000
Little Rock, AR 72201
(501) 975-3000 |
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth
company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer x |
Accelerated filer ¨ |
Non-accelerated filer ¨ |
Smaller reporting company ¨ |
|
Emerging growth company ¨ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
1
LiveRamp, Inc. assumed certain stock options, restricted stock units and restricted stock awards granted thereunder
in connection with the consummation of the transactions contemplated by the Agreement and Plan of Merger, dated January 17, 2024.
Explanatory
Note
Pursuant to the Agreement and Plan of Merger, dated
January 17, 2024 (the “Merger Agreement”), by and among LiveRamp, Inc., a Delaware corporation (“LiveRamp”),
and a wholly-owned subsidiary of LiveRamp Holdings, Inc. (the “Registrant”), Supersonic Merger Sub, Inc., a Delaware
corporation and a wholly-owned subsidiary of LiveRamp (“Merger Sub”), Habu, Inc., a Delaware corporation (“Habu”),
and Shareholder Representative Services LLC, a Colorado limited liability company (the “Stockholder Representative”). Pursuant
to the Merger Agreement, Merger Sub merged with and into Habu, pursuant to which Habu became a direct, wholly-owned subsidiary of LiveRamp
(the “Merger”). In accordance with the Merger Agreement, the Registrant assumed certain stock options, restricted stock units
and restricted stock awards that were outstanding immediately prior to the Merger under the Habu, Inc. 2018 Stock Plan (the “Plan”).
Each option to purchase shares of Habu’s common stock granted under the Plan, whether vested or unvested, that was outstanding immediately
prior to the effective time of the Merger, was assumed and converted, at the effective time of the Merger, into an option to purchase
shares of Registrant common stock, par value $0.10 per share (“Common Stock”) (as adjusted by the exchange ratio pursuant
to the Merger Agreement) (the “Assumed Options”). Each restricted stock unit representing the right to vest in and be issued
a share of Habu’s common stock or the cash equivalent thereof granted under the Plan, that was outstanding immediately prior to
the effective time of the Merger, was assumed and converted, at the effective time of the Merger, into an award of restricted stock units
to acquire registered and tradeable shares of Common Stock (the “Assumed RSUs”). Finally, each share of Habu’s common
stock subject to vesting (whether time-based or performance-based), repurchase or other lapse restriction granted under the Plan, that
was outstanding immediately prior to the effective time of the Merger, was assumed and converted, at the effective time of the Merger,
into an award of restricted stock for registered and tradeable shares of Common Stock (the “Assumed Restricted Stock”).
The Registrant is filing this Registration Statement
on Form S-8 (this “Registration Statement”) to register 3,116,618 shares of the Registrant’s Common Stock issuable
upon the exercise or vesting, as applicable, of the Assumed Options, Assumed RSUs and Assumed Restricted Stock originally granted and
outstanding under the Plan and assumed and converted by the Registrant.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I of Form S-8
to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428
under the Securities Act of 1933, as amended (the “Securities Act”). The documents containing the information specified in
Part I of Form S-8 will be sent or given to the participants in the Plan as specified by Rule 428(b)(1) under the
Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as
part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8,
taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational
and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and in accordance therewith files reports, proxy statements and other information with the Commission. The following documents,
which are on file with the Commission, are incorporated in this Registration Statement by reference:
(b) |
the Registrant’s
quarterly report on Form 10-Q for the quarter ended June 30, 2023, filed with the Commission on August 9, 2023, the Registrant’s
quarterly report on Form 10-Q for the quarter ended September 30, 2023, filed with the Commission on November 8, 2023
and the Registrant’s quarterly report on Form 10-Q for the quarter ended December 31, 2023, filed with the Commission
on February 8, 2024; |
(c) |
the Registrant’s
current reports on Form 8-K filed with the Commission on April 14, 2023, August 17, 2023, August 18, 2023,
November 9, 2023, November 16, 2023 and January 17, 2024 (only with respect to the Item 8.01 thereof); and |
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be part hereof from the date of the filing of such documents; provided, however, that
documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be
deemed incorporated by reference into this Registration Statement.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant is a Delaware
corporation. Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) enables a corporation to eliminate
or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of the director’s
fiduciary duty, except:
· |
for any breach of the director’s duty of loyalty to the corporation or its stockholders; |
· |
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
· |
pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions); or |
· |
for any transaction from which the director derived an improper personal benefit. |
In accordance with Section 102(b)(7) of
the DGCL, the Registrant’s Amended and Restated Certificate of Incorporation includes a provision eliminating, to the fullest extent
permitted by the DGCL, the liability of the Registrant’s directors to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director.
Section 145(a) of
the DGCL empowers a corporation to indemnify any present or former director, officer, employee or agent of the corporation, or any individual
serving at the corporation’s request as a director, officer, employee or agent of another organization, who was or is a party or
is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation), against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding
provided that such director, officer, employee or agent acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, provided further that such
director, officer, employee or agent had no reasonable cause to believe his or her conduct was unlawful. The DGCL provides that the indemnification
described above shall not be deemed exclusive of any other indemnification that may be granted by a corporation pursuant to its by-laws,
disinterested directors’ vote, stockholders’ vote, agreement or otherwise.
The DGCL
also provides corporations with the power to purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation in a similar capacity for another corporation,
partnership, joint venture, trust or other enterprise, against any liability asserted against him or her in any such capacity, or arising
out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability as
described above.
In accordance
with Section 145(a) of the DGCL, the Registrant’s Amended and Restated Certificate of Incorporation provides for indemnification
of directors and officers of the Registrant against liability they may incur in their capacities as such and to the extent authorized
by Delaware corporate law.
Pursuant
to the Registrant’s Amended and Restated Bylaws, the Registrant may maintain directors’ and officers’ insurance on behalf
of the directors and officers of the Registrant and those serving at the request of the Registrant as a director, officer, employee or
agent of another enterprise, against liability asserted against such persons in such capacity whether or not such directors or officers
have the right to indemnification pursuant to Delaware law. The Registrant currently has in effect directors’ and officers’
liability insurance and fiduciary liability insurance.
In addition,
the Registrant has entered into separate indemnification agreements with certain of its current and former directors and executive officers.
The indemnification agreements provide generally that the Registrant will indemnify and advance expenses to the fullest extent permitted
by applicable law. Each director and executive officer party to an indemnification agreement is entitled to be indemnified against all
expenses, judgments, penalties and amounts paid in settlement actually and reasonably incurred.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number |
|
Description |
|
|
|
4.1 |
|
Amended and Restated Certificate of Incorporation of
LiveRamp Holdings, Inc. (previously filed on October 1, 2018 as Exhibit 3.1 to LiveRamp Holdings, Inc.’s
Current Report on Form 8-K, Commission File No. 001-38669, and incorporated herein by reference). |
4.2 |
|
Amended and Restated Bylaws
of LiveRamp Holdings, Inc. (previously filed on October 1, 2018, as Exhibit 3.2 to LiveRamp Holdings, Inc.’s
Current Report on Form 8-K, Commission File No. 001-38669, and incorporated herein by reference). |
4.3* |
|
Habu, Inc. 2018 Stock Plan. |
5.1* |
|
Opinion of Baker & McKenzie
LLP. |
23.1* |
|
Consent of Baker & McKenzie LLP (contained
in Exhibit 5.1). |
23.2* |
|
Consent of KPMG LLP. |
24.1* |
|
Power of Attorney (included on the signature page of
this Registration Statement). |
107.1* |
|
Calculation of Filing Fee Table. |
|
|
|
* Filed herewith |
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers
or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing,
any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) above
do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement;
(b) That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(c) To remove from registration by means of
a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered hereby, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Little Rock, State of Arkansas, on February 12, 2024.
|
LIVERAMP HOLDINGS, INC. |
|
|
|
By: |
/s/ Jerry C. Jones |
|
Jerry C. Jones, EVP, Chief Ethics and Legal Officer and Secretary |
POWER OF ATTORNEY
KNOW ALL PERSONS
BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Jerry C. Jones and Arthur
G. Kellam, and each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for
him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this registration statement
(including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection
therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the following persons in the capacities indicated, as of February 12,
2024:
Signature |
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Title |
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|
|
|
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Director |
John L. Battelle |
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/s/ Timothy R. Cadogan |
|
Director |
Timothy R. Cadogan |
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/s/ Vivian Chow |
|
Director |
Vivian Chow |
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|
|
|
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/s/ Scott E. Howe |
|
Director, Chief Executive Officer |
Scott E. Howe |
|
(principal executive officer) |
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|
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/s/ Clark M. Kokich |
|
Director, Non-Executive Chairman of the Board |
Clark M. Kokich |
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/s/ Brian O’Kelley |
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Director |
Brian O’Kelley |
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/s/ Omar Tawakol |
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Director |
Omar Tawakol |
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/s/ Debora B. Tomlin |
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Director |
Debora B. Tomlin |
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/s/ Lauren Dillard |
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Executive Vice President and Chief
Financial Officer |
Lauren Dillard |
|
(principal financial and accounting officer) |
Exhibit 4.3
Habu,
Inc.
2018
Stock Plan
Adopted
on December 6, 2018
|
TABLE OF
CONTENTS |
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Page |
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SECTION 1. ESTABLISHMENT AND PURPOSE |
1 |
|
|
SECTION 2. ADMINISTRATION |
1 |
(a) |
Committees of the Board of Directors |
1 |
(b) |
Authority of the Board of Directors |
1 |
|
|
|
SECTION 3. ELIGIBILITY |
1 |
(a) |
General Rule |
1 |
(b) |
TenPercent Stockholders |
2 |
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|
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SECTION 4. STOCK SUBJECT TO
PLAN |
2 |
(a) |
Basic Limitation |
2 |
(b) |
Additional Shares |
2 |
|
|
|
SECTION 5. TERMS AND CONDITIONS
OF AWARDS OR SALES |
3 |
(a) |
Stock Grant or Purchase Agreement |
3 |
(b) |
Duration of Offers and Nontransferability of Rights |
3 |
(c) |
Purchase Price |
3 |
|
|
|
SECTION 6. TERMS AND CONDITIONS
OF OPTIONS |
3 |
(a) |
Stock Option
Agreement |
3 |
(b) |
Number of Shares |
3 |
(c) |
Exercise Price |
4 |
(d) |
Vesting and Exercisability |
4 |
(e) |
Basic Term |
4 |
(f) |
Termination of Service (Except by Death) |
4 |
(g) |
Leaves of Absence |
5 |
(h) |
Death of Optionee |
5 |
(i) |
Restrictions on Transfer of Options |
6 |
(j) |
No Rights as a Stockholder |
6 |
(k) |
Modification, Extension and Assumption of Options |
6 |
(l) |
Company’s Right to Cancel Certain Options |
6 |
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SECTION 7. TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS |
7 |
(a) |
Restricted Stock
Unit Agreement |
7 |
(b) |
Payment for Restricted Stock Units |
7 |
(c) |
Vesting Conditions |
7 |
(d) |
Forfeiture |
7 |
(e) |
Voting and Dividend Rights |
7 |
(f) |
Form and Time of Settlement of Restricted Stock Units |
7 |
(g) |
Death of Recipient |
8 |
(h) |
Creditors’
Rights |
8 |
(i) |
Modification,
Extension and Assumption of Restricted Stock Units |
8 |
(j) |
Restrictions on Transfer of Restricted Stock Units |
8 |
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SECTION 8. PAYMENT FOR SHARES |
8 |
(a) |
General Rule |
8 |
(b) |
Services Rendered |
8 |
(c) |
Promissory Note |
9 |
(d) |
Surrender of Stock |
9 |
(e) |
Cashless Exercise |
9 |
(f) |
Net Exercise |
9 |
(g) |
Other Forms of Payment |
9 |
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SECTION 9. ADJUSTMENT OF SHARES |
10 |
(a) |
General |
10 |
(b) |
Corporate Transactions |
10 |
(c) |
Dissolution or Liquidation |
11 |
(d) |
Reservation of Rights |
12 |
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SECTION 10. MISCELLANEOUS PROVISIONS |
12 |
(a) |
Securities Law Requirements |
12 |
(b) |
No Retention Rights |
12 |
(c) |
Treatment as Compensation |
12 |
(d) |
Governing Law |
13 |
(e) |
Conditions and Restrictions on Shares |
13 |
(f) |
Tax Matters |
13 |
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SECTION 11. DURATION AND AMENDMENTS;
STOCKHOLDER APPROVAL |
14 |
(a) |
Term of the Plan |
14 |
(b) |
Right to Amend or Terminate the Plan |
14 |
(c) |
Effect of Amendment or Termination |
14 |
(d) |
Stockholder Approval |
14 |
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SECTION 12. DEFINITIONS |
15 |
Habu,
Inc. 2018 Stock Plan
SECTION 1. ESTABLISHMENT AND PURPOSE.
The
purpose of this Plan is to attract, incentivize and retain Employees, Outside Directors and Consultants through the grant of Awards.
The Plan provides for the direct award or sale of Shares, the grant of Options to purchase Shares and the grant of Restricted Stock
Units to acquire Shares. Options granted under the Plan may be ISOs intended to qualify under Code Section 422 or NSOs which are not
intended to so qualify.
Capitalized terms are defined
in Section 12.
SECTION 2. ADMINISTRATION.
(a) Committees
of the Board of Directors.
The Plan may be administered by one or more Committees. Each Committee shall consist, as required by applicable law, of one or more members
of the Board of Directors who have been appointed by the Board of Directors. Each Committee shall have such authority and be responsible
for such functions as the Board of Directors has assigned to it. If no Committee has been appointed, the entire Board of Directors shall
administer the Plan. Any reference to the Board of Directors in the Plan or an Award Agreement shall be construed as a reference to the
Committee (if any) to whom the Board of Directors has assigned a particular function.
(b) Authority
of the Board of Directors.
Subject to the provisions of the Plan, the Board of Directors shall have full authority and discretion to take any actions it deems necessary
or advisable for the administration of the Plan. Notwithstanding anything to the contrary in the Plan, with respect to the terms and
conditions of awards granted to Participants outside the United States, the Board of Directors may vary from the provisions of the Plan
to the extent it determines it necessary and appropriate to do so; provided that it may not vary from those Plan terms requiring stockholder
approval pursuant to Section 11(d) below. All decisions, interpretations and other actions of the Board of Directors shall be final and
binding on all Participants and all persons deriving their rights from a Participant.
SECTION 3. ELIGIBILITY.
(a) General
Rule.
Employees,
Outside Directors and Consultants shall be eligible for the grant of Awards under the Plan.1 However, only Employees shall
be eligible for the grant of ISOs.
1
Note that special considerations apply if the Company proposes to grant awards to an Employee or Consultant of a Parent company.
(b) TenPercent
Stockholders.
A
person who owns more than 10% of the total combined voting power of all classes of outstanding stock of the Company, its Parent or
any of its Subsidiaries shall not be eligible for the grant of an ISO unless (i) the Exercise Price is at least 110% of the Fair
Market Value of a Share on the Date of Grant and (ii) such ISO by its terms is not exercisable after the expiration of five years
from the Date of Grant. For purposes of this Subsection (b), in determining stock ownership, the attribution rules of Code Section
424(d) shall be applied.
SECTION 4. STOCK SUBJECT TO PLAN.
(a) Basic
Limitation.
Not
more than 9,809,359 Shares may be issued under the Plan, subject to Subsection (b) below and Section 9(a).2 All of these
Shares may be issued upon the exercise of ISOs. The Company, during the term of the Plan, shall at all times reserve and keep
available sufficient Shares to satisfy the requirements of the Plan. Shares offered under the Plan may be authorized but unissued
Shares or treasury Shares.
(b) Additional
Shares.
In
the event that Shares previously issued under the Plan are forfeited to or repurchased by the Company due to failure to vest, such Shares
shall be added to the number of Shares then available for issuance under the Plan. In the event that Shares that otherwise would have
been issuable under the Plan are withheld by the Company in payment of the Purchase Price, Exercise Price or withholding taxes, such
Shares shall remain available for issuance under the Plan. In the event that an outstanding Option, Restricted Stock Unit or other right
for any reason expires or is canceled, the Shares allocable to the unexercised or unsettled portion of such Option, Restricted Stock
Unit or other right shall remain available for issuance under the Plan. To the extent an Award is settled in cash, the cash settlement
shall not reduce the number of Shares remaining available for issuance under the Plan. Notwithstanding the foregoing, in the case of
ISOs, this Subsection (b) shall be subject to any limitations imposed under Section 422 of the Code and the treasury regulations thereunder.
2 Please
refer to Exhibit A for a schedule of the initial share reserve and any subsequent increases in the reserve.
SECTION 5. TERMS AND CONDITIONS OF
AWARDS OR SALES.
(a) Stock
Grant or Purchase Agreement .
Each award of Shares under the Plan shall be evidenced by a Stock Grant Agreement between the Grantee and the Company. Each sale of Shares
under the Plan (other than upon exercise of an Option) shall be evidenced by a Stock Purchase Agreement between the Purchaser and the
Company. Such award or sale shall be subject to all applicable terms and conditions of the Plan and may be subject to any other terms
and conditions which are not inconsistent with the Plan and which the Board of Directors deems appropriate for inclusion in a Stock Grant
Agreement or Stock Purchase Agreement. The provisions of the various Stock Grant Agreements and Stock Purchase Agreements entered into
under the Plan need not be identical.
(b) Duration
of Offers and Nontransferability of Rights.
Any
right to purchase Shares under the Plan (other than an Option) shall automatically expire if not exercised by the Purchaser within 30
days (or such other period as may be specified in the Award Agreement) after the grant of such right was communicated to the Purchaser
by the Company. Such right is not transferable and may be exercised only by the Purchaser to whom such right was granted.
(c) Purchase
Price.
The Board of Directors shall determine the Purchase Price of Shares to be offered under the Plan at its sole discretion. The Purchase
Price shall be payable in a form described in Section 8.
SECTION 6. TERMS AND CONDITIONS OF
OPTIONS.
(a) Stock
Option Agreement.
Each
grant of an Option under the Plan shall be evidenced by a Stock Option Agreement between the Optionee and the Company. The Option shall
be subject to all applicable terms and conditions of the Plan and may be subject to any other terms and conditions that are not inconsistent
with the Plan and that the Board of Directors deems appropriate for inclusion in a Stock Option Agreement. The provisions of the various
Stock Option Agreements entered into under the Plan need not be identical.
(b) Number
of Shares.
Each
Stock Option Agreement shall specify the number of Shares that are subject to the Option and shall provide for the adjustment of
such number in accordance with Section 9. The Stock Option Agreement shall also specify whether the Option is an ISO or an
NSO.
(c) Exercise
Price.
(i) General. Each Stock Option Agreement shall specify the Exercise Price, which shall be payable in a form described in Section 8.
Subject to the remaining provisions of this Subsection (c), the Exercise Price shall be determined by the Board of Directors in its sole
discretion.
(ii) ISOs.
The Exercise Price of an ISO shall not be less than 100% of the Fair Market Value of a Share on the Date of Grant, and a higher
percentage may be required by Section 3(b). This Subsection (c)(ii) shall not apply to an ISO granted pursuant to an assumption of,
or substitution for, another incentive stock option in a manner that complies with Code Section 424(a).
(iii) NSOs. Except as specifically set forth in this Subsection (c)(iii), the Exercise Price of an NSO shall not be less than 100% of
the Fair Market Value of a Share on the Date of Grant. This Subsection (c)(iii) shall not apply to an NSO granted to a person who is
not a U.S. taxpayer on the Date of Grant or to an NSO that is intended either to be exempt from Code Section 409A as a “short-term
deferral” or to comply with the requirements of Code Section 409A. In addition, this Subsection (c)(iii) shall not apply to an
NSO granted pursuant to an assumption of, or substitution for, another stock option in a manner that complies with Code Section 409A.
(d) Vesting
and Exercisability.
Each
Stock Option Agreement shall specify the date when all or any installment of the Option is to become vested and exercisable. No
Option shall be exercisable unless the Optionee (i) has delivered an executed copy of the Stock Option Agreement to the Company or
(ii) otherwise agrees to be bound by the terms of the Stock Option Agreement. The Board of Directors shall determine the vesting and
exercisability provisions of the Stock Option Agreement at its sole discretion.
(e) Basic
Term.
The
Stock Option Agreement shall specify the term of the Option. The term shall not exceed 10 years from the Date of Grant, and in the
case of an ISO, a shorter term may be required by Section3 (b). Subject to the preceding sentence, the Board of Directors at its
sole discretion shall determine when an Option is to expire.
(f) Termination
of Service (Except by Death).
If
an Optionee’s Service terminates for any reason other than the Optionee’s death, then the Optionee’s Options shall
expire on the earliest of the following dates:
(i) The
expiration date determined pursuant to Subsection (e) above;
(ii) The date three months after the termination of the Optionee’s Service for any reason other than Disability, or such earlier or
later date as the Board of Directors may determine (but in no event earlier than 30 days after the termination of the
Optionee’s Service); or
(iii) The date six months after the termination of the Optionee’s Service by reason of Disability, or such later date as the Board of
Directors may determine.
The Optionee may
exercise all or part of the Optionee’s Options at any time before the expiration of such Options under the preceding sentence,
but only to the extent that such Options had become exercisable before the Optionee’s Service terminated (or became exercisable
as a result of the termination) and the underlying Shares had vested before the Optionee’s Service terminated (or vested as a result
of the termination). In the event that the Optionee dies after the termination of the Optionee’s Service but before the expiration
of the Optionee’s Options, all or part of such Options may be exercised (prior to expiration) by the executors or administrators
of the Optionee’s estate or by any person who has acquired such Options directly from the Optionee by beneficiary designation,
bequest or inheritance, but only to the extent that such Options had become exercisable before the Optionee’s Service terminated
(or became exercisable as a result of the termination) and the underlying Shares had vested before the Optionee’s Service terminated
(or vested as a result of the termination). In no event will an Option, or the Shares underlying an Option, become vested and/or exercisable
after termination of the Optionee’s Service unless the Board of Directors takes affirmative action or unless expressly provided
in a written agreement between the Company and the Optionee.
(g) Leaves
of Absence.
For
purposes of Subsection (f) above, Service shall be deemed to continue while the Optionee is on a bona fide leave of absence approved
by the Company in writing.
(h) Death
of Optionee.
If an Optionee dies while the Optionee is in Service, then the Optionee’s Options shall expire on the earlier of the following
dates:
(i) The
expiration date determined pursuant to Subsection (e) above; or
(ii) The date 12 months after the Optionee’s death, or such earlier or later date as the Board of Directors may determine (but in no
event earlier than six months after the Optionee’s death).
All or part of
the Optionee’s Options may be exercised at any time before the expiration of such Options under the preceding sentence by the
executors or administrators of the Optionee’s estate or by any person who has acquired such Options directly from the Optionee
by beneficiary designation, bequest or inheritance, but only to the extent that such Options had become exercisable before the
Optionee’s death (or became exercisable as a result of the death) and the underlying Shares had vested before the
Optionee’s death (or vested as a result of the Optionee’s death). In no event will an Option, or the Shares underlying
an Option, become vested and/or exercisable after the Optionee’s death unless the Board of Directors takes affirmative action
or unless expressly provided in a written agreement between the Company and the Optionee.
(i) Restrictions
on Transfer of Options.
An
Option shall be transferable by the Optionee only by (i) a beneficiary designation, (ii) a will or (iii) the laws of descent and
distribution, except as provided in the next sentence. If the Board of Directors so provides, in a Stock Option Agreement or
otherwise, an NSO may be transferable to the extent permitted by Rule 701 under the Securities Act. An ISO may be exercised during
the lifetime of the Optionee only by the Optionee or by the Optionee’s guardian or legal representative.
(j) No
Rights as a Stockholder.
An
Optionee, or a transferee of an Optionee, shall have no rights as a stockholder with respect to any Shares covered by the Optionee’s
Option until such person submits a notice of exercise, pays the Exercise Price and satisfies all applicable withholding taxes pursuant
to the terms of such Option.
(k) Modification,
Extension and Assumption of Options.
Within the limitations of the Plan, the Board of Directors may modify, reprice, extend or assume outstanding Options or may accept the
cancellation of outstanding options (whether granted by the Company or another issuer) in return for the grant of new Options or a different
type of award for the same or a different number of Shares and at the same or a different Exercise Price (if applicable). The foregoing
notwithstanding, no modification of an Option shall, without the consent of the Optionee, impair the Optionee’s rights or increase
the Optionee’s obligations under such Option; provided, however, that a modification of an Option that is otherwise favorable to
the Optionee (for example, providing the Optionee with additional time to exercise the Option after termination of employment or providing
for additional forms of payment) but causes the Option to lose its tax-favored status (for example, as an ISO) shall not require the
consent of the Optionee.
(l) Company’s
Right to Cancel Certain Options.
Any other provision of the Plan or a Stock Option Agreement notwithstanding, the Company shall have the right at any time to cancel
an Option that was not granted in compliance with Rule 701 under the Securities Act. Prior to canceling such Option, the Company
shall give the Optionee not less than 30 days’ notice in writing. If the Company elects to cancel such Option, it shall
deliver to the Optionee consideration with an aggregate value equal to the excess of (i) the Fair Market Value of the Shares subject
to such Option as of the time of the cancellation over (ii) the Exercise Price of such Option. The consideration may be delivered in
the form of cash or cash equivalents, in the form of Shares, or a combination of both. If the consideration would be a negative
amount, such Option may be cancelled without the delivery of any consideration.
SECTION 7. TERMS AND CONDITIONS OF
RESTRICTED STOCK UNITS
(a) Restricted
Stock Unit Agreement.
Each
grant of Restricted Stock Units under the Plan shall be evidenced by a Restricted Stock Unit Agreement between the recipient and the
Company. Such Restricted Stock Units shall be subject to all applicable terms and conditions of the Plan and may be subject to any other
terms and conditions that are not inconsistent with the Plan and which the Board of Directors deems appropriate for inclusion in a Restricted
Stock Unit Agreement. The provisions of the various Restricted Stock Unit Agreements entered into under the Plan need not be identical.
(b) Payment
for Restricted Stock Units.
No cash consideration shall be required of the recipient in connection with the grant of Restricted Stock Units.
(c) Vesting
Conditions.
Each Restricted Stock Unit Agreement shall specify the vesting requirements applicable to the Restricted Stock Units subject thereto,
which the Board of Directors shall determine in its sole discretion.
(d) Forfeiture.
Unless
a Restricted Stock Unit Agreement provides otherwise, upon termination of the recipient’s Service and upon such other times specified
in the Restricted Stock Unit Agreement, any unvested Restricted Stock Units shall be forfeited to the Company.
(e) Voting
and Dividend Rights.
The
holders of Restricted Stock Units shall have no voting rights. Prior to settlement or forfeiture, any Restricted Stock Unit granted under
the Plan may, at the discretion of the Board of Directors, carry with it a right to dividend equivalents. Such right entitles the holder
to be credited with an amount equal to all cash dividends paid on one Share while the Restricted Stock Unit is outstanding. Dividend
equivalents may be converted into additional Restricted Stock Units. Settlement of dividend equivalents may be made in the form of cash,
in the form of Shares, or in a combination of both. Prior to distribution, any dividend equivalents that are not paid shall be subject
to the same conditions and restrictions as the Restricted Stock Units to which they attach.
(f) Form
and Time of Settlement of Restricted Stock Units.
Settlement
of vested Restricted Stock Units may be made in the form of (i) cash, (ii) Shares or (iii) any combination of both, as determined by
the Board of Directors. The actual number of Restricted Stock Units eligible for settlement may be larger or smaller than the number
included in the original award, based on predetermined performance factors. Vested Restricted Stock Units shall be settled in such
manner and at such time(s) as specified in the Restricted Stock Unit Agreement. Until Restricted Stock Units are settled, the number
of Shares represented by such Restricted Stock Units shall be subject to adjustment pursuant to Section 9.
(g) Death
of Recipient.
Any
Restricted Stock Units that become distributable after the Participant’s death shall be distributed to the Participant’s
estate or to any person who has acquired such Restricted Stock Units directly from the recipient by beneficiary designation, bequest
or inheritance.
(h) Creditors’
Rights.
A
holder of Restricted Stock Units shall have no rights other than those of a general creditor of the Company. Restricted Stock Units represent
an unfunded and unsecured obligation of the Company, subject to the terms and conditions of the applicable Restricted Stock Unit Agreement.
(i) Modification,
Extension and Assumption of Restricted Stock Units.
Within the limitations of the Plan, the Board of Directors may modify, extend or assume outstanding restricted stock units (whether granted
by the Company or a different issuer). The foregoing notwithstanding, no modification of a Restricted Stock Unit shall, without the consent
of the Participant, impair the Participant’s rights or increase the Participant’s obligations under such Restricted Stock
Unit.
(j) Restrictions
on Transfer of Restricted Stock Units.
A Restricted Stock Unit shall be transferable by the Participant only by (i) a beneficiary designation, (ii) a will or (iii) the laws
of descent and distribution, except as provided in the next sentence. In addition, if the Board of Directors so provides, in a Restricted
Stock Unit Agreement or otherwise, a Restricted Stock Unit shall also be transferable to the extent permitted by Rule 701 under the Securities
Act.
SECTION 8. PAYMENT FOR SHARES.
(a) General
Rule.
The entire Purchase Price or Exercise Price of Shares issued under the Plan shall be payable in cash or cash equivalents at the time
when such Shares are purchased, except as otherwise provided in this Section 8. In addition, the Board of Directors in its sole
discretion may also permit payment through any of the methods described in (b) through (g) below.
(b) Services
Rendered.
Shares may be awarded under the Plan in consideration of services rendered to the Company, a Parent or a Subsidiary prior to the award.
(c) Promissory
Note.
All
or a portion of the Purchase Price or Exercise Price (as the case may be) of Shares issued under the Plan may be paid with a promissory
note. The Shares shall be pledged as security for payment of the principal amount of the promissory note and interest thereon. The interest
rate payable under the terms of the promissory note shall not be less than the minimum rate (if any) required to avoid the imputation
of additional interest under the Code. Subject to the foregoing, the Board of Directors in its sole discretion shall specify the term,
interest rate, recourse, amortization requirements (if any) and other provisions of such note.
(d) Surrender
of Stock.
All or any part of the Exercise Price may be paid by surrendering, or attesting to the ownership of, Shares that are already owned by
the Optionee. Such Shares shall be surrendered to the Company in good form for transfer and shall be valued at their Fair Market Value
as of the date when the Option is exercised.
(e) Cashless
Exercise.
All or part of the Exercise Price and any withholding taxes may be paid pursuant to a cashless exercise arrangement (whether through
a securities broker or otherwise) established by the Company whereby Shares subject to an Option are sold and all or part of the sale
proceeds are delivered to the Company.
(f) Net
Exercise.
An Option may permit exercise through a “net exercise” arrangement pursuant to which the Company will reduce the number of
Shares issued upon exercise by the largest whole number of Shares having an aggregate Fair Market Value (determined by the Board of Directors
as of the exercise date) that does not exceed the aggregate Exercise Price or the sum of the aggregate Exercise Price and any withholding
taxes (with the Company accepting from the Optionee payment of cash or cash equivalents to satisfy any remaining balance of the aggregate
Exercise Price and, if applicable, any additional withholding taxes not satisfied through such reduction in Shares); provided
that to the extent Shares subject to an Option are withheld in this manner, the number of Shares subject to the Option following the
net exercise will be reduced by the sum of the number of Shares withheld and the number of Shares delivered to the Optionee as a result
of the exercise.
(g) Other
Forms of Payment.
To
the extent that an Award Agreement so provides, the Purchase Price or Exercise Price of Shares issued under the Plan may be paid in any
other form permitted by the Delaware General Corporation Law, as amended.
SECTION 9. ADJUSTMENT OF SHARES.
(a) General.
In the event of a subdivision of the outstanding Stock, a declaration of a dividend payable in Shares, a combination or
consolidation of the outstanding Stock into a lesser number of Shares, a reclassification, or any other increase or decrease in the
number of issued shares of Stock effected without receipt of consideration by the Company, proportionate adjustments shall
automatically be made, as applicable, in each of (i) the number and kind of Shares available under Section 4, (ii) the number and
kind of Shares covered by each outstanding Option, Award of Restricted Stock Units and any outstanding and unexercised right to
purchase Shares that has not yet expired pursuant to Section 5(b), (iii) the Exercise Price under each outstanding Option and the
Purchase Price applicable to any unexercised stock purchase right described in clause (ii) above, and (iv) any repurchase price that
applies to Shares granted under the Plan pursuant to the terms of a Company repurchase right under the applicable Award Agreement.
In the event of a declaration of an extraordinary dividend payable in a form other than Shares in an amount that has a material
effect on the Fair Market Value of the Stock, a recapitalization, a spin-off, or a similar occurrence, the Board of Directors at its
sole discretion may make appropriate adjustments in one or more of the items listed in clauses (i) through (iv) above; provided,
however, that the Board of Directors shall in any event make such adjustments as may be required by Section 25102(o) of the
California Corporations Code to the extent the Company is relying on the exemption afforded thereunder with respect to an Award. No
fractional Shares shall be issued under the Plan as a result of an adjustment under this Section 9(a), although the Board of
Directors in its sole discretion may make a cash payment in lieu of fractional Shares.
(b) Corporate
Transactions.
In
the event that the Company is a party to a merger or consolidation, or in the event of a sale of all or substantially all of the Company’s
stock or assets, all Shares acquired under the Plan and all Awards outstanding on the effective date of the transaction shall be treated
in the manner described in the definitive transaction agreement (or, in the event the transaction does not entail a definitive agreement
to which the Company is party, in the manner determined by the Board of Directors in its capacity as administrator of the Plan, with
such determination having final and binding effect on all parties), which agreement or determination need not treat all Awards (or all
portions of an Award) in an identical manner. The treatment specified in the transaction agreement or as determined by the Board of Directors
may include (without limitation) one or more of the following with respect to each outstanding Award:
(i) The Company, the surviving corporation or a parent thereof may continue or assume the Award or substitute a comparable award for the
Award (including, but not limited to, an award to acquire the same consideration paid to the holders of Shares in the transaction).
For avoidance of doubt, a comparable award need not be the same type of award as the Award for which it is substituted, and, in the
case of an Option, need not have the same tax-status (e.g., an NSO may be substituted for an ISO).
(ii) The
cancellation of the Award and a payment to the Participant with respect to each Share subject to the portion of the Award that is
vested as of the transaction date equal to the excess of (A) the value, as determined by the Board of Directors in its absolute
discretion, of the property (including cash) received by the holder of a share of Stock as a result of the transaction, over (if
applicable) (B) the per-Share Exercise Price of the Award (such excess, the “Spread”). Such payment shall be made
in the form of cash, cash equivalents, or securities of the surviving corporation or its parent having a value equal to the Spread.
In addition, any escrow, indemnification, holdback, earn-out or similar provisions in the transaction agreement may apply to such
payment to the same extent and in the same manner as such provisions apply to the holders of Stock. Receipt of the payment described
in this Subsection (b)(ii) may be conditioned upon the Participant acknowledging such escrow, indemnification, holdback, earn-out or
other provisions on a form prescribed by the Company. If the Spread applicable to an Award is zero or a negative number, then the
Award may be cancelled without making a payment to the Participant.
(iii) Even if the Spread applicable to an Option is a positive number, the Option may be cancelled without the payment of any consideration;
provided that the Optionee shall be notified of such treatment and given an opportunity to exercise the Option (to the extent the Option
is vested or becomes vested as of the effective date of the transaction) during a period of not less than five (5) business days preceding
the effective date of the transaction, unless (A) a shorter period is required to permit a timely closing of the transaction and (B)
such shorter period still offers the Optionee a reasonable opportunity to exercise the Option.
(iv) In the case of an Option: (A) suspension of the Optionee’s right to exercise the Option during a limited period of time preceding
the closing of the transaction if such suspension is administratively necessary to facilitate the closing of the transaction and/or (B)
termination of any right the Optionee has to exercise the Option prior to vesting in the Shares subject to the Option (i.e., “early
exercise”), such that following the closing of the transaction the Option may only be exercised to the extent it is vested.
For the avoidance
of doubt, the Board of Directors has discretion to accelerate, in whole or part, the vesting and exercisability of an Award in connection
with a corporate transaction covered by this Section 9(b).
(c) Dissolution
or Liquidation.
To the extent not previously exercised or settled, Options, Restricted Stock Units and other rights to purchase Shares shall terminate
immediately prior to the liquidation or dissolution of the Company.
(d) Reservation
of Rights.
Except as provided in Section 7(e) or this Section 9, a Participant shall have no rights by reason of (i) any subdivision or
consolidation of shares of stock of any class, (ii) the payment of any dividend or (iii) any other increase or decrease in the
number of shares of stock of any class. Any issuance by the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Award. The grant of an Award pursuant to the Plan shall not affect in any way the right or
power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure, to
merge or consolidate or to dissolve, liquidate, sell or transfer all or any part of its business or assets.
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) Securities
Law Requirements.
Shares
shall not be issued under the Plan unless, in the opinion of counsel acceptable to the Board of Directors, the issuance and delivery
of such Shares complies with (or is exempt from) all applicable requirements of law, including (without limitation) the Securities Act,
the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or
other securities market on which the Company’s securities may then be traded. The Company shall not be liable for a failure to
issue Shares as a result of such requirements. Without limiting the foregoing, the Company may suspend the exercise of some or all outstanding
Options for a period of up to 60 days in order to facilitate compliance with Securities Act Rule 701(e).
(b) No
Retention Rights.
Nothing in the Plan or in any right or Award granted under the Plan shall confer upon the Participant any right to continue in Service
for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company (or any Parent or Subsidiary
employing or retaining the Participant) or of the Participant, which rights are hereby expressly reserved by each, to terminate his or
her Service at any time and for any reason, with or without cause.
(c) Treatment
as Compensation.
Any compensation that an individual earns or is deemed to earn under this Plan shall not be considered a part of his or her compensation
for purposes of calculating contributions, accruals or benefits under any other plan or program that is maintained or funded by the Company,
a Parent or a Subsidiary.
(d) Governing
Law.
The
Plan and all awards, sales and grants under the Plan shall be governed by, and construed in accordance with, the laws of the State of
Delaware (except its choice-of-law provisions), as such laws are applied to contracts entered into and performed in such State.
(e) Conditions
and Restrictions on Shares.
Shares issued under the Plan shall be subject to such forfeiture conditions, rights of repurchase, rights of first refusal, other transfer
restrictions and such other terms and conditions as the Board of Directors may determine. Such conditions and restrictions shall be set
forth in the applicable Award Agreement and shall apply in addition to any restrictions that may apply to holders of Shares generally.
In addition, Shares issued under the Plan shall be subject to conditions and restrictions imposed either by applicable law or by Company
policy, as adopted from time to time, designed to ensure compliance with applicable law or laws with which the Company determines in
its sole discretion to comply including in order to maintain any statutory, regulatory or tax advantage, which (for avoidance of doubt)
need not be set forth in the applicable Award Agreement.
(f) Tax
Matters.
(i) As a condition to the award, grant, issuance, vesting, purchase, exercise, settlement or transfer of any Award, or Shares issued pursuant
to any Award, granted under this Plan, the Participant shall make such arrangements as the Board of Directors may require or permit for
the satisfaction of any federal, state, local or foreign withholding tax obligations that may arise in connection with such event.
(ii) Unless
otherwise expressly set forth in an Award Agreement, it is intended that Awards shall be exempt from Code Section 409A, and any
ambiguity in the terms of an Award Agreement and the Plan shall be interpreted consistently with this intent. To the extent an Award
is not exempt from Code Section 409A (any such award, a “409A Award”), any ambiguity in the terms of such Award
and the Plan shall be interpreted in a manner that to the maximum extent permissible supports the Award’s compliance with the
requirements of that statute. Notwithstanding anything to the contrary permitted under the Plan, in no event shall a modification of
an Award not already subject to Code Section 409A, or any subsequent action taken with respect to such Award, be given effect if
such modification or action would cause the Award to become subject to Code Section 409A unless the parties explicitly acknowledge
and consent to the modification or action as one having that effect. A 409A Award shall be subject to such additional rules and
requirements as specified by the Board of Directors from time to time in order for it to comply with the requirements of Code
Section 409A. In this regard, if any amount under a 409A Award is payable upon a “separation from service” to an
individual who is considered a “specified employee” (as each term is defined under Code Section 409A), then no such
payment shall be made prior to the date that is the earlier of (i) six months and one day after the Participant’s separation
from service or (ii) the Participant’s death, but only to the extent such delay is necessary to prevent such payment from
being subject to Section 409A(a)(1). In addition, if a transaction subject to Section 9(b) constitutes a payment event with respect
to any 409A Award, then the transaction with respect to such award must also constitute a “change in control event” as
defined in Treasury Regulation Section 1.409A-3(i)(5) to the extent required by Code Section 409A.
(iii) Neither the Company nor any member of the Board of Directors shall have any liability to a Participant in the event an Award held by
the Participant fails to achieve its intended characterization under applicable tax law.
SECTION 11. DURATION AND AMENDMENTS;
STOCKHOLDER APPROVAL.
(a) Term
of the Plan.
The
Plan, as set forth herein, shall become effective on the date of its adoption by the Board of Directors, subject to approval of the
Company’s stockholders under Subsection (d) below. The Plan shall terminate automatically 10 years after the later of (i) the
date when the Board of Directors adopted the Plan or (ii) the date when the Board of Directors approved the most recent increase in
the number of Shares reserved under Section 4 that was also approved by the Company’s stockholders. The Plan may be terminated
on any earlier date pursuant to Subsection (b) below.
(b) Right
to Amend or Terminate the Plan.
Subject
to Subsection (d) below, the Board of Directors may amend, suspend or terminate the Plan at any time and for any reason.
(c) Effect
of Amendment or Termination.
No Shares shall be issued or sold and no Award granted under the Plan after the termination thereof, except upon exercise or settlement
of an Award granted under the Plan prior to such termination. Except as expressly provided in Section 6(k) above, the termination of
the Plan, or any amendment thereof, shall not affect any Share previously issued or any Award previously granted under the Plan.
(d) Stockholder
Approval.
To
the extent required by applicable law, the Plan will be subject to approval of the Company’s stockholders within 12 months of its
adoption date. An amendment of the Plan will be subject to the approval of the Company’s stockholders only to the extent required
by applicable laws, regulations or rules.
SECTION 12. DEFINITIONS.
(a)
“Award” means any award granted under the Plan, including as an Option, an award of Restricted Stock Units or the
grant or sale of Shares pursuant to Section 5 of the Plan.
(b)
“Award Agreement” means a Restricted Stock Unit Agreement, Stock Grant Agreement, Stock Option Agreement or Stock
Purchase Agreement or such other agreement evidencing an Award under the Plan.
(c)
“Board of Directors” means the Board of Directors of the Company, as constituted from time to time.
(d) “Code” means the Internal Revenue Code of 1986, as amended.
(e) “Committee”
means a committee of the Board of Directors, as described in Section 2(a).
(f) “Company” means Habu, Inc., a Delaware corporation.
(g)
“Consultant” means a person, excluding Employees and Outside Directors, who performs bona fide services for the
Company, a Parent3 or a Subsidiary as a consultant or advisor and who qualifies as a consultant or advisor under Rule
701(c)(1) of the Securities Act or under Instruction A.1.(a)(1) of Form S-8 under the Securities Act.
(h)
“Date of Grant” means the date of grant specified in the Award Agreement, which
date shall be the later of (i) the date on which the Board of Directors resolved to grant the Award or (ii) the first day of the
Participant’s Service.
(i)
“Disability” means that the Optionee is unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment.
(j)
“Employee” means any individual who is a commonlaw employee of the Company, a Parent4 or a Subsidiary.
(k) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(l)
“Exercise Price” means the amount for which one Share may be purchased upon
exercise of an Option, as specified by the Board of Directors in the applicable Stock Option Agreement.
3 Note that special considerations
apply if the Company proposes to grant awards to consultant or advisor of a Parent company.
4 Note that special considerations
apply if the Company proposes to grant awards to an Employee of a Parent company.
(m)
“Fair Market Value” means the fair market value of a Share, as determined by the Board of Directors in good faith.
Such determination shall be conclusive and binding on all persons.
(n)
“Grantee” means a person to whom the Board of Directors has awarded Shares under the Plan.
(o)
“ISO” means an Option that qualifies as an incentive stock option as described in
Code Section 422(b). Notwithstanding its designation as an ISO, an Option that does not qualify as an ISO under applicable law shall
be treated for all purposes as an NSO.
(p)
“NSO” means an Option that does not qualify as an incentive stock option as
described in Code Section 422(b) or 423(b).
(q)
“Option” means an ISO or NSO granted under the Plan and entitling the holder to purchase Shares.
(r) “Optionee” means a person who holds an Option.
(s)
“Outside Director” means a member of the Board of Directors who is not an Employee.
(t)
“Parent” means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company,
if each of the corporations other than the Company owns stock possessing 50% or more of the total combined voting power of all classes
of stock in one of the other corporations in such chain. A corporation that attains the status of a Parent on a date after the adoption
of the Plan shall be considered a Parent commencing as of such date.
(u) “Participant” means the holder of an outstanding Award.
(v) “Plan” means this Habu, Inc. 2018 Stock Plan.
(w)
“Purchase Price” means the consideration for which one Share may be acquired under the Plan (other than upon
exercise of an Option), as specified by the Board of Directors.
(x)
“Purchaser” means a person to whom the Board of Directors has offered the right to purchase Shares under the Plan
(other than upon exercise of an Option).
(y)
“Restricted Stock Unit” means a bookkeeping entry representing the equivalent of one Share, as awarded under the Plan.
(z)
“Restricted Stock Unit Agreement” means the agreement between the Company and the recipient of a Restricted Stock
Unit that contains the terms, conditions and restrictions pertaining to such Restricted Stock Unit.
(aa) “Securities
Act” means the Securities Act of 1933, as amended.
(bb)
“Service” means service as an Employee, Outside Director or Consultant. In case of any dispute as to whether and when
Service has terminated, the Board of Directors shall have sole discretion to determine whether such termination has occurred and the
effective date of such termination.
(cc)
“Share” means one share of Stock, as adjusted in accordance with Section 9 (if
applicable).
(dd) “Stock” means the Common Stock of the Company.
(ee)
“Stock Grant Agreement” means the agreement between the Company and a Grantee who
is awarded Shares under the Plan that contains the terms, conditions and restrictions pertaining to the award of such
Shares.
(ff)
“Stock Option Agreement” means the agreement between the Company and an Optionee that contains the terms, conditions
and restrictions pertaining to the Optionee’s Option.
(gg)
“Stock Purchase Agreement” means the agreement between the Company and a Purchaser who purchases Shares under the
Plan that contains the terms, conditions and restrictions pertaining to the purchase of such Shares.
(hh)
“Subsidiary” means any corporation (other than the Company) in an unbroken chain of corporations beginning with the
Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of
a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date.
Exhibit
A
Schedule
of Shares Reserved for Issuance under the Plan
Date of Board | |
Date of Stockholder | |
Number of | | |
Cumulative Number | |
Approval | |
Approval | |
Shares Added | | |
of Shares | |
December 6, 2018 | |
December 17, 2018 | |
| Not Applicable | | |
| 500,000 | |
December 26, 2018 | |
| |
| (405,534 | ) | |
| 94,466 | |
February 7, 2019 | |
February 7, 2019 | |
| 337,945 | | |
| 432,411 | |
February 28, 2019 | |
February 28, 2019 | |
| 1,078,369 | | |
| 1,510,780 | |
August 19, 2019 | |
August 19, 2019 | |
| 354,843 | | |
| 1,865,623 | |
August 22, 2019 | |
August 22, 2019 | |
| (292,889 | ) | |
| 1,572,734 | |
August 26, 2019 | |
August 26, 2019 | |
| 2,107,878 | | |
| 3,680,612 | |
September 11, 2019 | |
September 11, 2019 | |
| 200,000 | | |
| 3,880,612 | |
October 9, 2019 | |
October 9, 2019 | |
| 109,300 | | |
| 3,989,912 | |
October 29, 2019 | |
October 29, 2019 | |
| 2,362,249 | | |
| 6,352,161 | |
February 12, 2020 | |
February 12, 2020 | |
| 123,209 | | |
| 6,475,370 | |
September 1, 2020 | |
September 1, 2020 | |
| 236,564 | | |
| 6,711,934 | |
May 18, 2021 | |
May 18, 2021 | |
| 474,000 | | |
| 7,185,934 | |
August 3, 2021 | |
August 3, 2021 | |
| 92,649 | | |
| 7,278,583 | |
August 12, 2021 | |
August 12, 2021 | |
| 25,000 | | |
| 7,303,583 | |
September 14, 2021 | |
September 14, 2021 | |
| 70,185 | | |
| 7,373,768 | |
November 8, 2021 | |
November 8, 2021 | |
| 2,435,591 | | |
| 9,809,359 | |
Summary
of Modifications And Amendments to the Plan
The following
is a summary of material modifications made to the Plan (including any material deviations from the Gunderson Dettmer precedent form
used to create the Plan):
Exhibit 5.1
|
Baker & McKenzie LLP
800 Capitol Street, Suite 2100
Houston, TX 77002
United States
Tel: +1 713 427 5000
Fax: +1 713 427 5099
www.bakermckenzie.com |
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** In cooperation with Trench, Rossi e Watanabe Advogados |
March 01, 2024
LiveRamp Holdings, Inc.
225 Bush Street, Seventeenth Floor
San Francisco, CA, 94104
Re: LiveRamp Holdings, Inc. Registration Statement on Form S-8
Ladies and Gentlemen:
We
have acted as special counsel for LiveRamp Holdings, Inc., a Delaware corporation (the “Company”), in connection with its
filing with the Securities and Exchange Commission (the “SEC”) of a registration statement on Form S-8 filed on the
date hereof (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”),
with respect to the registration of 3,116,618 shares of the Company’s common stock, par value $0.10 per share (the “Shares”).
The Shares subject to the Registration Statement are to be issued pursuant to the assumption of stock options, restricted stock units
and restricted stock awards granted under the Habu, Inc.
2018 Stock Plan (the “Plan”).
We have examined originals
or copies certified or otherwise identified to our satisfaction of (i) the Registration Statement, (ii) the Amended and Restated Certificate
of Incorporation of the Company, as amended and supplemented to date, (iii) the Amended and Restated Bylaws of the Company, as amended
to date, (iv) the corporate proceedings with respect to the filing of the Registration Statement, (v) the corporate proceedings taken
with respect to the sale and issuance of the Shares under the Plan, and (vi) such other corporate records, agreements, documents and instruments
and certificates or comparable documents of public officials and officers and representatives of the Company as we have deemed necessary
or appropriate for the expression of the opinions contained herein. In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us
as photostatic or certified copies and the authenticity of the originals of such copies.
Based upon and subject to
the foregoing, and subject to the additional assumptions and qualifications set forth below, we are of the opinion that the Shares have
been duly authorized and, when and to the extent issued, delivered and paid for in accordance with the Plan, the Shares will be validly
issued, fully paid and non-assessable.
The opinion expressed above
is limited to the General Corporation Law of the State of Delaware and the federal securities laws of the United States of America.
|
Baker & McKenzie LLP is a member of Baker & McKenzie International.
This opinion letter is limited
to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated. We hereby consent to the
use of our opinion as herein set forth as an exhibit to the Registration Statement and to the use of our name under the caption “Legal
Matters” in the prospectus forming a part of the Registration Statement. In giving this consent, we do not hereby admit that we
come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the
SEC promulgated thereunder or Item 509 of Regulation S-K.
Best regards,
/s/ Baker & McKenzie LLP
BAKER & MCKENZIE LLP
Exhibit 23.2
Consent of Independent Registered Public Accounting
Firm
We consent to the use of our report dated May 24, 2023, with respect
to the consolidated financial statements of LiveRamp Holdings, Inc., and the effectiveness of internal control over financial reporting,
incorporated herein by reference.
/s/ KPMG LLP
Dallas, Texas
March 1, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
LiveRamp Holdings, Inc.
(Exact name of registrant as specified in its charter)
Table 1 – Newly Registered Securities
Security
Type |
|
Security
Class
Title(1) |
|
Fee
Calculation
Rule |
|
Amount
Registered(2) |
|
|
Proposed
Maximum
Offering
Price
Per
Unit(3) |
|
|
Maximum
Aggregate
Offering
Price |
|
|
Fee Rate |
|
|
Amount of
Registration
Fee(4) |
|
Equity |
|
Common stock, par value $0.10 per share, issuable in respect of the Assumed Options, Assumed RSUs and Assumed Restricted Stock under the Habu, Inc. 2018 Stock Plan |
|
Rule 457(c) and Rule 457(h) |
|
|
3,116,618 |
|
|
$ |
35.63 |
|
|
$ |
111,045,099.34 |
|
|
$ |
0.00014760 |
|
|
$ |
16,390.26 |
|
Amounts |
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
111,045,099.34 |
|
|
|
|
|
|
$ |
16,390.26 |
|
Total Fee Offsets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
– |
|
Net Fee Due |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
16,390.26 |
|
|
(1) |
This Registration Statement (the “Registration Statement”) registers the issuance of the common stock of LiveRamp Holdings, Inc. (the “Registrant”), par value $0.10 (the “Common Stock”), issuable pursuant to stock options, restricted stock units and restricted stock awards assumed as a result of the Agreement and Plan of Merger, dated January 17, 2024, by and among LiveRamp, Inc., Supersonic Merger Sub, Inc., Habu, Inc. and Shareholder Representative Services LLC. |
|
(2) |
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares that may be offered or issued as a result of stock splits, stock dividends or similar transactions. |
|
(3) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h), based on the average of the high and low prices of the Registrant’s Common Stock as reported on the New York Stock Exchange on February 28, 2024. |
|
(4) |
Rounded to the nearest penny. |
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