Form of Director RSU Award Agreement
SOCIAL CAPITAL HEDOSOPHIA HOLDINGS CORP.
DIRECTOR RESTRICTED STOCK UNIT AWARD AGREEMENT
This Director Restricted Stock Unit Award Agreement (this RSU Award Agreement), dated as of , (the Grant Date), is made by and between Social Capital Hedosophia Holdings Corp., an exempted company incorporated under the laws of the Cayman Islands (which is expected to domesticate (the Domestication) as a Delaware corporation prior to the consummation of the VG Business Combination) (the Company), and (the Participant). The terms of this RSU Award Agreement shall be governed by the terms of the omnibus equity incentive plan to be adopted by the Company and submitted for approval by the Companys shareholders in connection with the VG Business Combination (the Plan). Certain capitalized terms used herein and not otherwise defined are defined in Section 6 hereof.
1. Grant of Restricted Stock Units. The Company hereby grants to the Participant restricted stock units (the RSUs), subject to all of the terms and conditions of this RSU Award Agreement, the Plan and Section 8.8 of the Merger Agreement.
(a) Subject to Sections 2(b) and 7, the RSUs shall become vested in full upon the consummation of the VG Business Combination; provided that (x) the Participant remains in continuous service as a member of the Board of Directors of the Company (the Board) through the time that is immediately prior to the consummation of the VG Business Combination and (y) the Class B Shares shall have converted into Common Stock in accordance with Section 8.8 of the Merger Agreement.
(b) If the Participants service as a member of the Board is terminated for any reason prior to the date on which the VG Business Combination is consummated, then on the date of such termination from service (i) this RSU Award Agreement shall terminate and all rights of the Participant with respect to the RSUs shall immediately terminate, (ii) the RSUs shall be forfeited without payment of any consideration, and (iii) neither the Participant nor any of the Participants successors, heirs, assigns, or personal representatives shall thereafter have any further rights or interests in the RSUs.
3. Settlement. Each RSU granted hereunder shall represent the notional right to receive a single Ordinary Share and, upon the Domestication, each RSU will be converted into the notional right to receive a single share of Common Stock. Vested RSUs will be settled in shares of Common Stock on a date determined in the sole discretion of the Company that shall occur between January 1 and December 31 of the year following the year in which vesting occurs.
4. Equitable Adjustment. In the event of any Change in Capitalization (other than in connection with the VG Business Combination), an equitable substitution or proportionate adjustment shall be made in (i) the kind and number of Shares or other securities or the amount of cash or amount or type of other property subject to outstanding RSUs granted under this Agreement; and/or (ii) the terms and conditions of this RSU Award Agreement; provided, however, that any fractional shares resulting from the adjustment shall be eliminated. The Company is further authorized to make adjustments in the terms and conditions of, and the criteria included in, this RSU Award Agreement in recognition of unusual or infrequent events (including, without limitation, the events described in this Section 4, but excluding the VG Business Combination) affecting the Company or the financial statements of the Company, including but not limited to changes in the number or conversion rights associated with the Class B Shares or Warrants other than as contemplated hereby, or of changes in applicable laws, regulations, or accounting principles, whenever the Company determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under this RSU Award Agreement.
5. Voting and Other Rights. The Participant shall have no rights of a stockholder with respect to the RSUs (including the right to vote and the right to receive distributions or dividends) unless and until Shares are issued in respect thereof following the date on which they vest in accordance with Section 2(a) hereof; provided, that with respect to the period commencing on the Grant Date and ending on the date the Shares subject to such RSUs are issued pursuant to this RSU Award Agreement, the Participant shall be eligible to receive an amount equal to the product of (i) the number of Shares to be delivered as a result of such vesting, and (ii) the amount of cash distributed by the Company with respect to an outstanding Share during such period, which amount shall be paid to the Participant on the date such Shares are issued (provided that such amount shall not be paid to the extent that any RSUs do not become vested and Shares are not delivered). No interest or other earnings will be credited with respect to such payment.
6. Definitions. As used herein, the following defined terms have the definitions set forth below:
Change in Capitalization means any (a) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate transaction or event, (b) special or extraordinary dividend or other extraordinary distribution (whether in the form of cash, Shares or other property), stock split, reverse stock split, share subdivision or consolidation, (c) combination or exchange of Shares or (d) other change in corporate structure, which, in any such case, the Company determines, in its sole discretion, affects the Shares such that an adjustment pursuant to Section 4 is appropriate.
Class B Shares shall mean the Class B ordinary shares of the Company, par value $0.0001 per share.
Common Stock shall mean the common stock, par value $0.0001 per share, of the Company following the Domestication.
Merger Agreement means that certain Agreement and Plan of Merger, dated as of July 9, 2019, by and among the Company, Vieco 10 Limited, a company limited by shares under the laws of the British Virgin Islands, Foundation Sub 1, a Delaware corporation, Foundation Sub 2, a Delaware corporation, Foundation Sub LLC, a Delaware limited liability company, TSC Vehicle Holdings, Inc., a Delaware corporation, Virgin Galactic Vehicle Holdings, Inc., a Delaware corporation, and VGH, LLC, a Delaware limited liability company.
Ordinary Shares shall mean the Class A ordinary shares of the Company, par value $0.0001 per share.
Shares shall mean, collectively, Ordinary Shares, shares of Common Stock and Class B Shares, as applicable.
Trust Account shall mean the trust fund into which a portion of the net proceeds of the Companys initial public offering were deposited for the benefit of the Company, certain of its public shareholders and the underwriters of the Companys initial public offering.
VG Business Combination shall mean the consummation of the Domestication and the Mergers (each as defined in the Merger Agreement) and the other transactions contemplated by the Merger Agreement.
Warrants shall mean warrants to purchase Shares.
7. RSU Award Agreement Subject to Plan and Shareholder Approval. This RSU Award Agreement is made pursuant to all of the provisions of the Plan, which is incorporated herein by this reference, and is intended, and shall be interpreted in a manner, to comply therewith. In the event of any conflict between the provisions of this RSU Award Agreement and the provisions of the Plan, the provisions of this RSU Award Agreement shall govern. The Participant hereby acknowledges that all decisions, determinations and interpretations of the Administrator in respect of the Plan, this RSU Award Agreement and the RSUs shall be final and conclusive. This RSU Award Agreement and the grant of RSUs hereunder is expressly contingent upon approval of the Plan
and its Overall Share Limit (as defined in the Plan) by the Companys Board (or a designated committee thereof) and the Companys shareholders. If the Plan is not so approved on or prior to the Closing of the VG Business Combination, this RSU Award Agreement shall be null and void ab initio on the Closing of the VG Business Combination. Any issuance of Shares in respect of RSUs shall be issued under and pursuant to the terms of the Plan.
8. Regulations and Other Approvals.
Any resale of the Shares received in respect of RSUs shall be made in compliance with the registration requirement of the Securities Act of 1933, as amended (the Securities Act), or an applicable exemption therefrom, including, without limitation, the exemption provided by Rule 144 promulgated thereunder (or any successor rule, Rule 144).
The obligation of the Company to sell or deliver Shares with respect to any RSU granted hereunder shall be subject to all applicable laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Company.
Each RSU is subject to the requirement that, if at any time the Company determines, in its absolute discretion, that the listing, registration or qualification of Shares issuable hereunder is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the grant of an RSU or the issuance of Shares, no such RSU shall be granted or payment made or Shares issued, in whole or in part, unless such listing, registration, qualification, consent or approval has been effected or obtained free of any conditions not acceptable to the Company.
9. Participant Representations and Warranties. This RSU Award Agreement and the grant of RSUs hereunder is expressly conditioned on the Participants acceptance and agreement to the representations and warranties set forth in Annex A hereto. All representations and warranties contained in Annex A shall survive the execution of this RSU Award Agreement and the grant of the RSUs contemplated hereby. The Participant agrees to indemnify and hold harmless the Company from any liability, loss or expense (including, without limitation, reasonable attorneys fees) if the Participant has breached any representation or warranty hereunder.
10. No Rights to Continuation of Service. Nothing in the Plan or this RSU Award Agreement shall confer upon the Participant any right to continue in the service of the Company or any Affiliate thereof or shall interfere with or restrict the right of the Company or its Affiliates to terminate the Participants service at any time for any reason whatsoever.
11. Taxes. The Participant understands that the Participant (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this RSU Award Agreement.
12. Section 409A and Section 457A. The intent of the parties is that the payments and benefits under this RSU Award Agreement comply with Section 409A of the Code and be exempt from Section 457A of the Code, to the extent subject thereto, and accordingly, to the maximum extent permitted, this RSU Award Agreement shall be interpreted and administered to be in compliance therewith or exempt therefrom, as applicable. Notwithstanding anything contained herein to the contrary, the Participant shall not be considered to have terminated service with the Company for purposes of any payments under this RSU Award Agreement which are subject to Section 409A of the Code until the Participant would be considered to have incurred a separation from service from the Company within the meaning of Section 409A of the Code. Each amount to be paid or benefit to be provided under this RSU Award Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be
provided pursuant to this RSU Award Agreement or any other arrangement between the Participant and the Company during the six-month period immediately following the Participants separation from service shall instead be paid on the first business day after the date that is six months following the Participants separation from service (or, if earlier, the Participants date of death). The Company makes no representation that any or all of the payments described in this RSU Award Agreement will be exempt from or comply with Section 409A or Section 457A of the Code and makes no undertaking to preclude Section 409A or Section 457A of the Code from applying to any such payment. The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A or Section 457A of the Code.
13. Governing Law. This RSU Award Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.
14. RSU Award Agreement Binding on Successors. The terms of this RSU Award Agreement shall be binding upon the Participant and upon the Participants heirs, executors, administrators, personal representatives, transferees, assignees and successors in interest, and upon the Company and its successors and assignees, subject to the terms of the Plan.
15. No Assignment. Notwithstanding anything to the contrary in this RSU Award Agreement, neither this RSU Award Agreement nor any rights granted herein shall be assignable by the Participant.
16. Necessary Acts. The Participant hereby agrees to perform all acts, and to execute and deliver any other documents that may be reasonably necessary to carry out the provisions of this RSU Award Agreement, including but not limited to all acts and documents related to compliance with federal and/or state securities and/or tax laws.
17. Severability. Should any provision of this RSU Award Agreement be held by a court of competent jurisdiction to be unenforceable, or enforceable only if modified, such holding shall not affect the validity of the remainder of this RSU Award Agreement, the balance of which shall continue to be binding upon the parties hereto with any such modification (if any) to become a part hereof and treated as though contained in this original RSU Award Agreement. Moreover, if one or more of the provisions contained in this RSU Award Agreement shall for any reason be held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable, in lieu of severing such unenforceable provision, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear, and such determination by such judicial body shall not affect the enforceability of such provisions or provisions in any other jurisdiction.
18. Entire Agreement. This RSU Award Agreement, the Plan and the Merger Agreement contain the entire agreement and understanding among the parties as to the subject matter hereof, and supersedes any other agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof.
19. Headings. Headings are used solely for the convenience of the parties and shall not be deemed to be a limitation upon or descriptive of the contents of any such Section.
20. Counterparts; Electronic Signature. This RSU Award Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The Participants electronic signature of this RSU Award Agreement shall have the same validity and effect as a signature affixed by the Participants hand.
21. Amendment; Third Party Beneficiary. No amendment or modification hereof (including with respect to any of the conditions set forth in Section 2(b) or Section 7) shall be valid unless it shall be in writing and signed by all parties hereto and, prior to the Closing, by Vieco 10 Limited (Vieco 10). Vieco 10 shall be a third party beneficiary of this Agreement.
22. Waiver against Trust Account. The Participant acknowledges that he or she has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Company with respect to the RSUs. The Participant hereby further acknowledges that he or she shall have no right of set-off or any other right, title, interest or claim of any kind (Claim) in, or to any distribution of, the Trust Account and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Participant hereby waives any and all Claims against the Trust Account and any and all rights to seek access to the Trust Account.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this RSU Award Agreement as of the date set forth above.
|SOCIAL CAPITAL HEDOSOPHIA HOLDINGS CORP.|
[Signature Page to Director RSU Award Agreement]
The undersigned hereby accepts and agrees to all the terms and provisions of the foregoing RSU Award Agreement, including Annex A.
[Signature Page to Director RSU Award Agreement]
REPRESENTATIONS AND WARRANTIES OF THE PARTICIPANT
The Participant hereby represents and warrants to the Company as of the date of this RSU Award Agreement as follows:
The Participants domicile is the State of [DOMICILE], all discussions related to this Agreement, the RSUs, and the offer and acceptance of this RSU Award Agreement, and the RSUs granted hereunder, occurred in the State of [DOMICILE].
The Participant has such knowledge and experience in financial and business matters that he or she is capable of evaluating the merits and risks of the investment to be made by the Participant hereunder. The Participant understands and has taken cognizance of all the risk factors related to the investment in the RSUs.
The Participant is acquiring the RSUs for his or her own account for investment and not with any view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act.
The Participant understands that (i) the RSUs have not been, and any Shares received in respect of RSUs will not be, registered under the Securities Act or applicable state securities laws, in reliance on exemptions from registration under the Securities Act and applicable state securities laws, (ii) the RSUs and any Shares received in respect of RSUs may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act, except: (a) to the Company or a subsidiary thereof, (b) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (c) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (a) and (c) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates representing the Shares shall contain a legend to such effect, (iii) the availability of an exemption from registration may depend on factors over which the Participant has no control, that unless so registered or exempt from registration the RSUs and any Shares received in respect of RSUs may be required to be held for an indefinite period and (iv) no federal or state agency has made any finding or determination as to the fairness for investment, nor any recommendation or endorsement, of the RSUs or any Shares received in respect of RSUs.
The Participant understands that an exemption from registration is not presently available pursuant to Rule 144, that there is no assurance that such exemption will ever become available to the Participant and that even if it were to become available, sales pursuant to Rule 144 would be limited in amount and could only be made in full compliance with the provisions of Rule 144.
The Participant acknowledges and agrees that (i) except as expressly provided for in this RSU Award Agreement, no representations or warranties have been made to the Participant by the Company, any manager, officer, agent, employee or affiliate of the Company, or any other persons with respect to the Participants investment in the RSUs, (ii) except for this RSU Award Agreement and the Plan, there are no agreements, contracts, understandings or commitments between the Participant on the one hand and the Company, any director, manager, officer, agent, employee or affiliate of the Company on the other hand, with respect to the Participants investment in the RSUs, (iii) in entering into this transaction the Participant is not relying upon any information, other than that contained in the Plan, this RSU Award Agreement and the results of the Participants own independent investigation, (iv) the Participants financial situation is such that the Participant can afford to hold the RSUs and any Shares received in respect of RSUs for an indefinite period of time, has adequate means for providing for his or her current needs and personal contingencies, and can afford the eventuality that the RSUs and any Shares received in respect of RSUs may ultimately have no value, (v) the future value of the RSUs and any Shares received in respect of RSUs is speculative, and (vi) the Participants investment in the RSUs and any Shares received in respect of RSUs is subject to dilution by the issuance of additional equity securities by the Company and the Participant is not
|entitled to any preemptive, tag-along, information or other minority investor rights with respect to the RSUs and any Shares received in respect of RSUs, other than as expressly set forth in this RSU Award Agreement, the Plan or as otherwise provided under applicable law.|
The Participant understands that he or she must bear the economic risk of his or her investment in the RSUs for an indefinite period of time.
The Participant understands that the grant of RSUs to the Participant is predicated, in part, on the representations, warranties and covenants of the Participant contained herein.
The Participant hereby acknowledges that neither the Company nor any representative of the Company has provided, or will provide, the Participant with tax advice regarding the RSUs, the Company or the execution of this Agreement, and the Company has advised the Participant to consult the Participants own tax advisor with respect to the tax consequences of each of the foregoing, including but not limited to any applicable elections, withholdings or other matters relating to the RSUs, the Company or the execution of this Agreement.