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As filed with the Securities and Exchange Commission on April 28, 2023
Registration No. 333-
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM S-8
REGISTRATION
 
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
VAXXINITY,
 
INC.
(Exact name of registrant as specified in its charter)
 
 
Delaware
 
86-2083865
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification Number)
505 Odyssey Way
Merritt Island, FL 32953
(Address, including zip code, principal executive offices)
Vaxxinity,
 
Inc. 2021 Omnibus Incentive Compensation Plan
(Full title of the plan)
René Paula Molina
General Counsel and Secretary
Vaxxinity,
 
Inc.
505 Odyssey Way
Merritt Island, FL 32953
Telephone: (254)
 
244-5739
(Name, address and telephone number, including area code, of agent for service)
 
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
 
☐
 
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.
☐
 
EXPLANATORY
 
NOTE
This Registration Statement
 
on Form S-8
 
is being filed
 
for the purpose
 
of registering an
 
additional 3,186,306 shares
of
 
Class
 
A
 
common
 
stock,
 
par
 
value
 
$0.0001
 
per
 
share
 
(the
 
“Class
 
A
 
Common
 
Stock”),
 
of
 
Vaxxinity,
 
Inc.
 
(the
“Registrant”) issuable under
 
the Registrant’s
 
2021 Omnibus Incentive
 
Compensation Plan (the “Plan”),
 
representing
an increase of 3,186,306
 
shares of Class A Common Stock reserved under the Plan effective as of January 1, 2023 as
a
 
result
 
of
 
the
 
operation
 
of
 
the
 
Plan’s
 
automatic
 
annual
 
increase
 
provision.
 
This
 
Registration
 
Statement
 
registers
additional securities
 
of the same
 
class as other
 
securities for
 
which a registration
 
statement filed
 
on Form S-8
 
of the
Registrant relating to an employee bene
 
fit plan is effective (File No.
 
333-261061). Pursuant to Instruction E of Form
S-8,
 
the
 
contents
 
of
 
the
 
Registrant’s
 
registration
 
statement
 
on
 
Form
 
S-8
 
filed
 
with
 
the
 
Securities
 
and
 
Exchange
Commission
 
on
 
November
 
15,
 
2021
 
(File
 
No.
 
333-261061),
 
except
 
for
 
Item 6
 
“Indemnification
 
of
 
Directors
 
and
Officers” and Item 8 “Exhibits”,
 
are incorporated by reference herein.
 
PART
 
II
INFORMATION REQUIRED
 
IN THE REGISTRATION
 
STATEMENT
 
Item 6. Indemnification of Directors and Officers.
We
 
have
 
entered
 
into
 
indemnification
 
agreements
 
with
 
each
 
of
 
our
 
current
 
directors
 
and
 
executive
 
officers.
These agreements require us to indemnify these individuals to
 
the fullest extent permitted under Delaware law against
liabilities that may
 
arise by reason
 
of their service
 
to us, and
 
to advance expenses
 
incurred as a
 
result of any
 
proceeding
against them as to which they could be indemnified. We also intend to enter into indemnification agreements with our
future directors and executive officers.
Section 145
 
of
 
the
 
Delaware
 
General
 
Corporation
 
Law
 
(the
 
“DGCL”)
 
provides
 
that
 
a
 
corporation
 
may
indemnify directors
 
and officers
 
as well
 
as other
 
employees and
 
individuals
 
against expenses
 
(including
 
attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection
with
 
any
 
threatened,
 
pending
 
or
 
completed
 
actions,
 
suits or
 
proceedings
 
in
 
which
 
such
 
person
 
is made
 
a
 
party
 
by
reason
 
of
 
such
 
person
 
being
 
or
 
having
 
been
 
a
 
director,
 
officer,
 
employee
 
or
 
agent
 
to
 
the
 
Registrant.
 
The
 
DGCL
provides that Section 145 is
 
not exclusive of other
 
rights to which those
 
seeking indemnification may be
 
entitled under
any bylaw, agreement,
 
vote of stockholders or disinterested directors or otherwise. Our amended and restated bylaws
provide for indemnification by the Registrant of its
 
directors, officers and employees to the fullest extent permitted by
the DGCL.
Section 102(b)(7)
 
of the
 
DGCL permits
 
a corporation
 
to provide
 
in its
 
charter that
 
a director
 
or officer
 
of the
corporation shall
 
not be
 
personally liable
 
to the
 
corporation or
 
its stockholders
 
for monetary
 
damages for
 
breach of
fiduciary duty as a director or officer, except for liability of (1) a director or officer
 
for any breach of the director’s or
officer’s duty of loyalty to the
 
corporation or its stockholders, (2)
 
a director or officer for
 
acts or omissions not
 
in good
faith or which involve
 
intentional misconduct or
 
a knowing violation of
 
law, (3)
 
a director for payments of
 
unlawful
dividends
 
or unlawful
 
stock purchases
 
or redemptions,
 
(4) a
 
director or
 
officer
 
for any
 
transaction from
 
which the
director
 
or
 
officer
 
derived
 
an
 
improper
 
personal
 
benefit,
 
or
 
(5)
 
an
 
officer
 
in
 
any
 
action
 
by
 
or
 
in
 
the
 
right
 
of
 
the
corporation. The
 
certificate of
 
incorporation,
 
as amended,
 
of the
 
Registrant provides
 
for such
 
limitation of
 
liability
with respect to directors of the corporation.
 
We
 
maintain standard policies of
 
insurance under which coverage
 
is provided (a) to our
 
directors and officers
against loss arising from
 
claims made by reason
 
of breach of duty
 
or other wrongful act and
 
(b) to us with respect to
payments we may make to our officers and
 
directors pursuant to the above indemnification provision
 
or otherwise as
a matter of law.
 
 
 
 
 
 
 
Item 8. Exhibits.
 
Exhibit
Number
 
Exhibit Description
 
Incorporated by
Reference
 
 
Filed
Herewith
 
 
Form
 
 
Date
 
 
Numbe
r
 
4.1
 
 
 
8-K
 
 
 
11/17/2021
 
 
 
3.1
 
 
4.2
 
 
 
8-K
 
 
 
11/17/2021
 
 
 
3.2
 
 
4.3
S-1/A
 
 
 
11/5/2021
 
 
 
4.1
 
 
5.1
 
 
 
 
 
 
X
 
23.1
 
 
 
 
 
 
X
 
23.2
 
(included in Exhibit 5.1).
 
 
 
 
 
 
X
 
24.1
 
(included on the signature page hereof).
 
 
 
 
 
 
X
 
99.1#
 
 
 
 
 
X
99.2#
S-1/A
 
 
 
11/5/2021
 
 
 
10.14
 
 
99.3#
S-1/A
 
 
 
11/5/2021
 
 
 
10.15
 
 
107
 
 
 
 
 
 
X
 
 
#
Indicates management contract or compensatory plan or arrangement
 
.
 
 
 
 
 
 
 
 
 
SIGNATURES
The Registrant.
 
Pursuant to the requirements of the Securities Act of 1933, as amended, 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
 
Merritt
 
Island,
Florida,
 
on April 28, 2023.
 
 
VAXXINITY,
 
INC.
By:
 
[/s/ Mei Mei Hu]
 
Name: Mei Mei Hu
 
Title: President and Chief Executive Officer
Power of Attorney
KNOW ALL PERSONS BY THESE
 
PRESENTS, that each person whose
 
signature appears below hereby constitutes
and appoints Mei Mei Hu and René Paula Molina, and
 
each of them acting individually,
 
as his or her true and lawful
attorneys-in-fact and agents, each with full power
 
of substitution, for him or her in any and all capacities,
 
to sign any
and all amendments
 
(including post-effective
 
amendments) to this Registration
 
Statement, 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,
 
with full
 
power of
 
each to
 
act alone,
 
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 his, her or their substitute or substitutes, may lawfully do or cause
 
to be done by virtue hereof.
 
Pursuant to the
 
requirements of the
 
Securities Act of
 
1933, as amended,
 
this Registration Statement
 
has been signed
by the following persons in the capacities and on the dates indicated.
 
Name
 
Title
 
Date
/s/ Mei Mei Hu
 
President, Chief Executive Officer,
 
and Director
 
April 28, 2023
Mei Mei Hu
 
(Principal Executive Officer)
 
/s/ Jason Pesile
 
Senior Vice President, Finance &
 
Accounting
 
April 28, 2023
Jason Pesile
 
(Principal Financial Officer and Principal Accounting Officer)
 
/s/ Louis Reese
 
Executive Chairman
 
April 28, 2023
Louis Reese
 
 
/s/ George Hornig
 
Director
 
April 28, 2023
George Hornig
 
 
/s/ Landon Ogilvie
 
Director
 
April 28, 2023
Landon Ogilvie
 
 
/s/ Gaby Toledano
 
Director
 
April 28, 2023
Gaby Toledano
 
 
 
 
 
 
/s/ Peter Diamandis
 
Director
 
April 28, 2023
Peter Diamandis
 
 
/s/ Katherine Eade
 
Director
 
April 28, 2023
Katherine Eade
 
 
/s/ Peter Powchik
 
Director
 
April 28, 2023
Peter Powchik
 
 
/s/ James Smith
 
Director
 
April 28, 2023
James Smith
 
 
 
exhibit51
 
exhibit51p1i0
BOSTON
 
LOS
ANGELES
 
NEW
YORK
 
SAN
DIEGO
 
SAN
FRANCISCO
 
TORONTO
 
WASHINGTON
MINTZ,
LEVIN,
COHN,
FERRIS,
GLOVSKY
AND
POPEO,
P.C.
Exhibit 5.1
One Financial Center
Boston, MA 02111
617 542 6000
mintz.com
April 28, 2023
 
Vaxxinity,
 
Inc.
 
505 Odyssey Way
Merritt Island, FL 32953
Re:
 
Registration Statement on Form S-8
Ladies and Gentlemen:
 
We
 
have
 
acted
 
as
 
legal
 
counsel
 
to
 
Vaxxinity,
 
Inc.,
 
a
 
Delaware
 
corporation
 
(the
 
“Company”),
 
in
connection
 
with
 
the
 
preparation
 
and
 
filing
 
with
 
the
 
Securities
 
and
 
Exchange
 
Commission
 
(the
“Commission”) of a Registration
 
Statement on Form S-8
 
(the “Registration Statement”),
 
pursuant to which
the Company
 
is registering
 
the issuance
 
under the
 
Securities Act
 
of 1933,
 
as amended
 
(the “Securities
 
Act”),
of an
 
aggregate of
 
3,186,306 shares
 
(the “Shares”)
 
of the
 
Company’s
 
Class A
 
common stock,
 
par value
$0.0001 per share
 
(the “Class A
 
Common Stock”),
 
in accordance with
 
the terms of
 
the Vaxxinity,
 
Inc. 2021
Omnibus Incentive Compensation Plan (the “Plan”).
 
This opinion is being rendered in connection
 
with the
filing
 
of
 
the
 
Registration
 
Statement
 
with
 
the
 
Commission.
 
All
 
capitalized
 
terms
 
used
 
herein
 
and
 
not
otherwise defined shall have the respective meanings given to them in the
 
Registration Statement.
 
In connection with
 
this opinion, we
 
have examined the
 
Company’s Amended and Restated
 
Certificate
of Incorporation and Amended and Restated Bylaws, each as
 
currently in effect; such other records of the
corporate
 
proceedings
 
of
 
the
 
Company
 
and
 
certificates
 
of
 
the
 
Company’s
 
officers
 
as
 
we
 
have
 
deemed
relevant; and the Registration Statement and the exhibits thereto.
 
In our examination, we have assumed the
 
genuineness of all signatures, the legal capacity
 
of natural
persons, the
 
authenticity of
 
all documents
 
submitted to
 
us as
 
originals, the
 
conformity to
 
original documents
of all documents
 
submitted to us
 
as copies, the
 
authenticity of the
 
originals of such
 
copies, and the
 
truth and
correctness of any representations and warranties contained therein. In addition, we have assumed that the
Company will receive any required consideration in accordance with
 
the terms of the Plan.
 
Our opinion expressed herein is limited
 
to the General Corporation Law of
 
the State of Delaware and
we express
 
no opinion
 
with respect
 
to the
 
laws of
 
any other
 
jurisdiction. No
 
opinion is
 
expressed herein
with
 
respect
 
to
 
the
 
qualification
 
of
 
the
 
Shares
 
under the
 
securities or
 
blue
 
sky
 
laws
 
of
 
any
 
state
 
or
 
any
foreign jurisdiction.
 
Please note
 
that we are
 
opining only
 
as to the
 
matters expressly
 
set forth
 
herein, and
 
no opinion should
be inferred as to any
 
other matters. This opinion
 
is based upon currently
 
existing statutes, rules,
 
regulations
and judicial decisions, and we disclaim any obligation to advise
 
you of any
 
 
exhibit51p2i0
BOSTON
 
LOS
ANGELES
 
NEW
YORK
 
SAN
DIEGO
 
SAN
FRANCISCO
 
TORONTO
 
WASHINGTON
MINTZ,
LEVIN,
COHN,
FERRIS,
GLOVSKY
AND
POPEO,
P.C.
MINTZ
April 28, 2023
 
Page 2
change in any of these sources of law or subsequent legal or factual
 
developments which might affect any
matters or opinions set forth herein.
 
Based
 
upon
 
the
 
foregoing,
 
we
 
are
 
of
 
the
 
opinion
 
that
 
the
 
Shares,
 
when
 
issued
 
and
 
delivered
 
in
accordance with the terms of the Plan, will be validly issued, fully
 
paid and non-assessable.
We understand that you
 
wish to
 
file this
 
opinion with
 
the Commission
 
as an
 
exhibit to
 
the Registration
Statement in accordance
 
with the requirements
 
of Item 601(b)(5)
 
of Regulation S-K
 
promulgated under the
Securities Act, and
 
we hereby consent thereto.
 
In giving this consent,
 
we do not admit
 
that we are
 
within
the category
 
of persons
 
whose consent
 
is required
 
under Section
 
7 of
 
the Securities
 
Act or
 
the rules
 
and
regulations of the Commission promulgated thereunder.
 
Very
 
truly yours,
 
MINTZ, LEVIN,
 
COHN, FERRIS,
 
GLOVSKY AND
 
POPEO,
P.C.
exhibit107
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Exhibit 107
 
Calculation of Filing Fee Table
Form S-8
(Form Type)
 
Vaxxinity,
 
Inc.
(Exact Name of Registrant as Specified in its Charter)
 
Table 1: Newly Registered
 
Securities
Security
Type
Security
Class
Title
Fee
Calculation
Rule
Amount
Registered
Proposed
Maximum
Offering
Price Per
Unit
Maximum
Aggregate
Offering
Price
Fee
Rate
Amount of
Registration
Fee
Equity
Class A common stock,
par value
$0.0001 per
share
457(c)
and
457(h)
3,186,306 (1)
 
$1.79 (2)
 
$5,703,487.74
$0.00011020
 
$628.52
Total
 
Offering Amount
$5,703,487.74
$628.52
Total
 
Fee Offsets
–
Net Fee Due
$628.52
(1)
The number
 
of shares
 
of Class A
 
common
 
stock, par
 
value $0.0001
 
per share
 
(“Class A Common
 
Stock”), of
Vaxxinity,
 
Inc. (the “Registrant”) stated above consists of additional shares of Class A Common Stock available
for issuance
 
as of
 
January 1,
 
2023 under
 
the Vaxxinity,
 
Inc. 2021
 
Omnibus Incentive
 
Compensation Plan
 
(the
“2021
 
Plan”), by
 
operation of
 
the 2021
 
Plan’s
 
automatic annual
 
increase provision.
 
The maximum
 
number of
shares which may be sold upon the exercise of options or issuance of stock-based awards granted under the 2021
Plan
 
is
 
subject
 
to
 
adjustment
 
in
 
accordance
 
with
 
certain
 
anti-dilution
 
and
 
other
 
provisions
 
in
 
the
 
2021
 
Plan.
Accordingly,
 
pursuant
 
to
 
Rule
 
416
 
under
 
the
 
Securities
 
Act
 
of
 
1933,
 
as
 
amended
 
(the
 
“Securities
 
Act”),
 
this
registration statement covers, in addition to
 
the number of shares
 
stated above, an indeterminate number
 
of shares
which
 
may
 
be
 
subject
 
to
 
grant
 
or
 
otherwise
 
issuable
 
after
 
the
 
operation
 
of
 
any
 
such
 
anti-dilution
 
and
 
other
provisions.
 
(2)
Estimated solely
 
for the
 
purpose of
 
calculating the
 
amount of
 
the registration
 
fee pursuant
 
to Rule
 
457(c)
 
and
Rule 457(h)
 
promulgated under
 
the Securities
 
Act on
 
the basis
 
of the
 
average of
 
the high
 
and the
 
low price
 
of
Registrant’s Class A common stock
 
as reported on the Nasdaq Stock Market on April 25, 2023.
 
exhibit991
 
 
Error! Unknown document property name.
VAXXINITY,
 
INC.
 
2021 OMNIBUS INCENTIVE COMPENSATION
 
PLAN
SECTION 1.
 
Purpose.
 
The purpose of this 2021 Omnibus Incentive
Compensation Plan (the “Plan”) is to enable the Company (as defined below) to grant equity
compensation awards and other types of incentive compensation.
 
The Plan is intended to replace
the Prior Plan (as defined below), which shall be automatically terminated and replaced and
superseded by the Plan on the Effective Date (as defined below).
 
Notwithstanding the foregoing,
any awards granted under the Prior Plan shall remain in effect pursuant to their terms.
SECTION 2.
 
Definitions.
 
As used herein, the following terms shall have the
meanings set forth below:
“Affiliate” means (a) any entity that, directly or indirectly, is controlled by,
controls or is under common control with, the Company and (b) any entity in which the
Company has a significant equity interest, in either case, as determined by the Committee.
“Applicable Exchange” means The Nasdaq Global Market or any other national
stock exchange or quotation system on which the Shares may be listed or quoted.
“Applicable Law” means legal requirements relating to the Plan under U.S.
Federal and state corporate law, U.S. Federal and state securities law,
 
the Code, the Applicable
Exchange and the applicable laws of any foreign country or jurisdiction where Awards
 
are, or
will be, granted.
“Award” means
 
any award that is permitted under Section 6 and granted under
the Plan.
“Award
 
Agreement” means any written or electronic agreement, contract or other
instrument or document evidencing any Award.
“Board” means the Board of Directors of the Company.
“Cash Incentive Award”
 
means an Award that is
 
settled in cash and the value of
which is set by the Committee but is not calculated by reference to the Fair Market Value
 
of a
Share.
“Cause” shall have the meaning as set forth in the applicable Award
Agreement.
 
In the case that any Award
 
Agreement does not contain a definition of “Cause,”
“Cause” shall mean (i) the Participant’s dishonest statements or acts with respect to the Company
or any Affiliate, or any current or prospective customers, suppliers vendors or other third parties
with which such entity does business; (ii) the Participant’s commission of (A) a felony or (B) any
misdemeanor involving moral turpitude, deceit, dishonesty or fraud; (iii) the Participant’s failure
to perform his assigned duties and responsibilities to the reasonable satisfaction of the Company
which failure continues, in the reasonable judgment of the Company, after written notice given to
the Participant by the Company; (iv) the Participant’s gross negligence, willful misconduct or
insubordination with respect to the Company or any Affiliate;
 
or (v) the Participant’s material
 
 
2
Error! Unknown document property name.
violation of any provision of any agreements between the grantee and the Company relating to
noncompetition, nonsolicitation, nondisclosure and/or assignment of inventions.
“Change of Control” means the occurrence of any of the following events:
(i)
 
during any period of twenty-four (24) consecutive calendar months,
individuals who were Directors on the first day of such period (the “Incumbent
Directors”) cease for any reason to constitute a majority of the non-employee members of
the Board; provided, however, that any individual becoming a Director subsequent to the
first day of such period whose election, or nomination for election, by the Company’s
stockholders was approved by a vote of at least a majority of the Incumbent Directors
shall be considered as though such individual were an Incumbent Director, but excluding,
for purposes of this proviso, any such individual whose initial assumption of office
occurs as a result of, or in connection with, an actual or threatened proxy contest with
respect to the election or removal of Directors or other actual or threatened solicitation of
proxies or consents by or on behalf of any Person or Persons (whether or not acting in
concert) other than the Board;
(ii)
 
the consummation of (A) a merger, consolidation, statutory share
exchange or similar form of transaction involving (x) the Company or (y) any of its
Subsidiaries, but in the case of this clause (y) only if Company Voting
 
Securities (as
defined below) are issued or issuable (a “Reorganization”) or (B) the sale or other similar
disposition of all or substantially all the assets of the Company to an entity that is not an
Affiliate (a “Sale”), in each case, if such Reorganization or Sale requires the approval of
the Company’s stockholders under the law of the Company’s
 
jurisdiction of organization
(whether such approval is required for such Reorganization or Sale or for the issuance of
securities of the Company in such Reorganization or Sale), unless, immediately following
such Reorganization or Sale, (1) all or substantially all the Persons who were the
“beneficial owners” (as used in Rule 13d-3 under the Exchange Act (or a successor rule
thereto)) of the securities eligible to vote for the election of the Board (“Company Voting
Securities”) outstanding immediately prior to the consummation of such Reorganization
or Sale continue to beneficially own, directly or indirectly, more than 50% of the
combined voting power of the then outstanding voting securities of the corporation or
other entity resulting from such Reorganization or Sale (including a corporation or other
entity that, as a result of such transaction, owns the Company or all or substantially all the
Company’s assets either directly or through one or more subsidiaries) (the “Continuing
Company”) in substantially the same proportions as their ownership, immediately prior to
the consummation of such Reorganization or Sale, of the outstanding Company Voting
Securities (excluding, for such purposes, any outstanding voting securities of the
Continuing Company that such beneficial owners hold immediately following the
consummation of the Reorganization or Sale as a result of their ownership prior to such
consummation of voting securities of any corporation or other entity involved in or
forming part of such Reorganization or Sale other than the Company), (2) no Person
(excluding (a) any employee benefit plan (or related trust) sponsored or maintained by
the Continuing Company, (b) any entity controlled by the Continuing Company or,
 
(c)
the parties to the Voting
 
Agreement (as subject to adjustment as provided therein), so
long as the Voting
 
Agreement is in effect and such parties (as subject to adjustment as
 
 
3
Error! Unknown document property name.
provided therein) collectively hold a majority of the power (whether exclusive or shared)
to vote or direct the vote of then-outstanding shares of capital stock of the Continuing
Company) beneficially owns, directly or indirectly, 50% or more of the power to vote or
direct the vote of then-outstanding shares of capital stock of the Company and (3) at least
a majority of the members of the board of directors of the Continuing Company were
Incumbent Directors at the time of the execution of the definitive agreement providing
for such Reorganization or Sale or, in the absence of such an agreement, at the time at
which approval of the Board was obtained for such Reorganization or Sale;
(iii)
 
the stockholders of the Company approve a plan of complete liquidation
or dissolution of the Company unless such liquidation or dissolution is part of a
transaction or series of transactions described in paragraph (ii) above that does not
otherwise constitute a Change of Control; or
(iv)
 
any Person, corporation or other entity (other than (A) the Company,
(B) any trustee or other fiduciary holding securities under an employee benefit plan of the
Company or an Affiliate or (C) the parties to the Voting
 
Agreement (as subject to
adjustment as provided therein), so long as the Voting
 
Agreement is in effect and such
parties (as subject to adjustment as provided therein) collectively hold a majority of the
power (whether exclusive or shared) to vote or direct the vote of then-outstanding shares
of capital stock of the Continuing Company) becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 50% or more of the combined
voting power of the Company Voting
 
Securities; provided, however, that for purposes of
this subparagraph (iv), the following acquisitions shall not constitute a Change of
Control: any acquisition (w) directly from the Company, (x) by any employee benefit
plan (or related trust) sponsored or maintained by the Company or an Affiliate, (y) by an
underwriter temporarily holding such Company Voting
 
Securities pursuant to an offering
of such securities or any acquisition by a pledgee of Company Voting
 
Securities holding
such securities as collateral or temporarily holding such securities upon foreclosure of the
underlying obligation or (z) pursuant to a Reorganization or Sale that does not constitute
a Change of Control for purposes of subparagraph (ii) above.
“Code” means the Internal Revenue Code of 1986, as amended from time to time,
or any successor statute thereto, and the regulations promulgated thereunder.
“Committee” means the Compensation Committee of the Board or a
subcommittee thereof, or such other committee of the Board as may be designated by the Board
to administer the Plan.
“Company” means Vaxxinity,
 
Inc., a corporation organized under the laws of
Delaware, together with any successor thereto.
“Director” means any non-employee member of the Board, but solely in his or her
capacity as such a member of the Board.
“Effective Date” shall have the meaning specified in Section 11.
4
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“Eligible Person” means any current, former or prospective director, officer,
employee or consultant (including any prospective director, officer,
 
employee or consultant) of
the Company or its Affiliates.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from
time to time, or any successor statute thereto, and the regulations promulgated
 
thereunder.
“Exercise Price” means (a) in the case of each Option, the price specified in the
applicable Award Agreement
 
as the price-per-Share at which Shares may be purchased pursuant
to such Option or (b) in the case of each SAR, the price specified in the applicable Award
Agreement as the reference price-per-Share used to calculate the amount payable to the
Participant pursuant to such SAR.
“Expiration Date” shall have the meaning specified in Section 11.
“Fair Market Value”
 
means, except as otherwise determined by the Committee,
(a) with respect to any property other than Shares, the fair market value of such property
determined by such methods or procedures as shall be established from time to time by the
Committee and (b) with respect to Shares, as of any date, (i) the closing per-share sales price of
Shares as reported by the Applicable Exchange for such stock exchange for such date or if there
were no sales on such date, on the closest preceding date on which there were sales of Shares or
(ii) in the event there shall be no public market for the Shares on such date, the fair market value
of the Shares as determined in good faith by the Committee.
“Incentive Stock Option” means an option to purchase Shares from the Company
that is intended to qualify for special Federal income tax treatment pursuant to Sections 421 and
422 of the Code, as now constituted or subsequently amended, or pursuant to a successor
provision of the Code, and which is so designated in the applicable Award
 
Agreement.
“Independent Director” means a member of the Board (a) who is neither an
employee of the Company or any Affiliate, and (b) who, at the time of acting, is a “Non-
Employee Director” within the meaning of Rule 16b-3.
“Nonqualified Stock Option” means an option to purchase Shares from the
Company that is not an Incentive Stock Option.
“Option” means an Incentive Stock Option or a Nonqualified Stock Option or
both, as the context requires.
“Participant” means any Eligible Person who is selected by the Committee to
receive an Award or
 
who receives a Substitute Award.
“Performance Criteria” means the criterion or criteria that the Committee shall
select for purposes of any Award
 
and shall be based on the attainment of specific levels of
performance of the Company or any of its Subsidiaries, Affiliates, divisions or operational units,
or any combination of the foregoing, which may include any of the following: (A) share price;
(B) net income or earnings before or after taxes (including earnings before interest, taxes,
depreciation and/or amortization); (C) operating income;
 
(D) earnings per share (including
5
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specified types or categories thereof); (E) cash flow (including specified types or categories
thereof); (F) revenues (including specified types or categories thereof); (G) return measures
(including specified types or categories thereof); (H) shareholder return measures (including
specified types or categories thereof); (I) sales or product volume; (J) working capital; (K) gross
or net profitability/profit margins (including profitability of an identifiable business unit or
product); (L) objective measures of productivity or operating efficiency; (M) costs (including
specified types or categories thereof); (N) expenses (including specified types or categories
thereof); (O) product unit and pricing targets; (P) credit rating or borrowing levels; (Q) market
share (in the aggregate or by segment); (R) level or amount of acquisitions; (S) economic,
 
enterprise,
 
book, economic book or intrinsic book value (including on a per share basis);
(T) improvements in capital structure; (U) customer satisfaction survey results; and
(V) implementation or completion of critical projects.
“Person” means a “person” or “group” within the meaning of Sections 3(a)(9),
13(d) and 14(d) of the Exchange Act.
“Plan” shall have the meaning specified in Section 1.
“Prior Plan” means the Company’s 2021 Stock Option and Grant Plan.
“Restricted Share” means a Share that is subject to certain transfer restrictions,
forfeiture provisions and/or other terms and conditions specified herein and in the applicable
Award Agreement.
“RSU” means a restricted stock unit Award that represents an unfunded
 
and
unsecured promise to deliver Shares, cash, other securities, other Awards or
 
other property,
subject to the satisfaction of the applicable vesting conditions, in accordance with the terms of
the applicable Award Agreement.
“Rule 16b-3” means Rule 16b-3 under the Exchange Act or any successor rule or
regulation thereto as in effect from time to time.
“SAR” means a stock appreciation right Award
 
that represents an unfunded and
unsecured promise to deliver Shares, cash, other securities, other Awards or
 
other property equal
in value to the excess, if any, of the Fair Market Value
 
per Share over the Exercise Price per
Share of the SAR, subject to the terms of the applicable Award Agreement.
“SEC” means the Securities and Exchange Commission or any successor thereto
and shall include the staff thereof.
“Shares” means shares of Class A common stock of the Company, $0.0001 par
value, or such other securities of the Company (a) into which such shares shall be changed by
reason of a recapitalization, merger, consolidation, split-up, combination, exchange of shares or
other similar transaction or (b) as may be determined by the Committee pursuant to Section 4(b).
“Subsidiary” means any entity in which the Company, directly or indirectly,
possesses fifty percent (50%) or more of the total combined voting power of all classes of its
stock.
 
 
 
 
 
 
6
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“Substitute Awards” shall
 
have the meaning specified in Section 4(c).
“Treasury Regulations” means all proposed, temporary and final regulations
promulgated under the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
“Voting
 
Agreement” means the voting agreement, dated October 1, 2021, by and
among Louis Reese, Blackfoot Healthcare Ventures
 
LLC, United Biomedical, Inc. and Mei Mei
Hu.
SECTION 3.
 
Administration.
 
(a)
 
Composition of the Committee.
 
The Plan
shall be administered by the Committee, which shall be composed of one or more directors, as
determined by the Board.
 
The members of the Committee shall be Independent Directors, unless
otherwise determined by the Board.
 
Unless otherwise expressly provided
 
in the Plan, the Board
shall also be permitted to exercise all powers delegated to the Committee.
 
(b)
 
Authority of the Committee.
 
Subject to the terms of the Plan and Applicable
Law, and in addition to the other express powers and authorizations conferred on the Committee
by the Plan, the Committee shall have sole and plenary authority to administer the Plan,
including the authority to (i) designate Participants, (ii) determine all terms and conditions of
Awards, (iii) interpret,
 
administer, reconcile any inconsistency in, correct any default in and
supply any omission in, the Plan and any instrument or agreement relating to, or Award
 
made
under, the Plan, (iv) establish, amend, suspend or waive such rules and regulations and appoint
such agents as it shall deem appropriate for the proper administration of the Plan, (v) accelerate
the vesting or exercisability of, payment for or lapse of restrictions on, Awards
 
and (vi) make
any other determination and take any other action that the Committee deems necessary or
desirable for the administration of the Plan.
(c)
 
Committee Decisions.
 
Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations and other decisions under or with respect to the Plan
or any Award
 
shall be within the sole and plenary discretion of the Committee, may be made at
any time and shall be final, conclusive and binding upon all Persons, including the Company,
any Affiliate, any Participant, any holder or beneficiary of any Award
 
and any stockholder.
(d)
 
Indemnification.
 
No member of the Board or the Committee,
 
or any
employee of the Company (each such person, a “Covered Person”) shall be liable for any action
taken or omitted to be taken or any determination made in good faith with respect to the Plan or
any Award.
 
Each Covered Person shall be indemnified and held harmless by the Company from
and against (i) any loss, cost, liability or expense (including attorneys’ fees) that may be imposed
upon or incurred by such Covered Person in connection with or resulting from any action, suit or
proceeding to which such Covered Person may be a party or in which such Covered Person may
be involved by reason of any action taken or omitted to be taken under the Plan or any Award
Agreement and (ii) any and all amounts paid by such Covered Person, with the Company’s
approval, in settlement thereof, or paid by such Covered Person in satisfaction of any judgment
in any such action, suit or proceeding against such Covered Person; provided that the Company
shall have the right, at its own expense, to assume and defend any such action, suit or
proceeding, and, once the Company gives notice of its intent to assume the defense, the
 
 
 
 
 
7
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Company shall have sole control over such defense with counsel of the Company’s choice.
 
The
foregoing right of indemnification shall not be available to a Covered Person to the extent that a
court of competent jurisdiction in a final judgment or other final adjudication, in either case not
subject to further appeal, determines that the acts or omissions of such Covered Person giving
rise to the indemnification claim resulted from such Covered Person’s bad faith, fraud or willful
criminal act or omission or that such right of indemnification is otherwise prohibited by law or
by the Company’s Amended and Restated Certificate of Incorporation or Amended and Restated
Bylaws, in each case, as may be amended from time to time.
 
The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to which Covered
Persons may be entitled under the Company’s Amended and Restated Certificate of
Incorporation or Amended and Restated Bylaws, as a matter of law, or otherwise, or any other
power that the Company may have to indemnify such persons or hold them harmless.
(e)
 
Delegation of Authority to Senior Officers.
 
Subject to the terms of
Applicable Law, the Committee may delegate to one or more officers of the Company
 
the
authority to make grants of Awards to
 
current and prospective Eligible Persons and all necessary
and appropriate decisions and determinations with respect thereto, subject to any conditions or
requirements imposed by the Committee on the exercise of such delegated authority.
SECTION 4.
 
Shares Subject to the Plan. (a)
 
Share Limits. (i) Subject to
adjustment as provided in Section 4(b), the maximum number of Shares that may be issued
pursuant to future Awards
 
(the “Share Limit”) shall initially be 8,700,000.
 
The Share Limit shall
(A) be reduced by the number of Shares issued in respect of Awards
 
granted, (B) be increased by
(x) any Shares issued in respect of an Award
 
to the extent such Award
 
is subsequently forfeited,
or otherwise expires, terminates or is canceled or (y) any Shares surrendered or tendered to the
Company in payment of any exercise price or taxes withheld in respect of an Award,
 
(C) for the
avoidance of doubt, be neither increased nor decreased by any Shares subject to an Award
 
that
are not issued in connection with its settlement (including cash settlement) and (D) be increased
on each January 1 beginning on January 1, 2023 and ending (and including) January 1, 2030 in
an amount (not less than zero) equal to the lesser of (x) 4% of the number of outstanding Shares
as of the last day of the immediately preceding calendar year, (y) such number of Shares
determined by the Committee,
 
if any such determination is made, and (z) the number of Shares
underlying any Awards
 
granted, if any, during the immediately preceding calendar year,
 
less the
number of Shares by which the Share Limit was increased under clause (B) during the preceding
calendar year; provided that, for purposes of this clause (z), calendar year 2022 shall be deemed
to include the period beginning on the Effective Date and ending on December 31, 2021.
(ii)
 
Subject to adjustment as provided in Section 4(b), the maximum
number of Shares that may be delivered upon the exercise of Incentive Stock Options shall be
equal to 8,700,000 (the “ISO Limit”).
(b)
 
Adjustments for Changes in Capitalization and Similar Events.
 
(i)
 
In the
event of any extraordinary dividend or other extraordinary distribution (whether in the form of
cash, Shares, other securities or other property), recapitalization, rights offering, stock split,
reverse stock split, split-up or spin-off, the Committee shall equitably adjust, in the manner the
Committee determines appropriate, any or all of (A) the number of Shares or other securities of
the Company (or number and kind of other securities or property) with respect to which Awards
 
 
 
 
 
 
8
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may be granted, including the Share Limit and the ISO Limit, and (B) the terms of any
outstanding Award
 
so as to prevent the enlargement or diminishment of the benefits provided
thereunder, including (1) the number of Shares or other securities of the Company (or number
and kind of other securities or property) subject to such Award or
 
to which such Award
 
relates,
(2) the Exercise Price, if applicable, with respect to such Award
 
and (3) the vesting terms
(including performance goals) applicable to such Award.
(ii)
 
Subject to Section 4(b)(i), in the event of any reorganization, merger,
consolidation, combination, repurchase or exchange of Shares or other securities of the
Company, issuance of warrants or other rights to purchase Shares or other securities of the
Company or other similar corporate transaction or event (including any Change of Control) or
other unusual, extraordinary or non-recurring event (including a change in Applicable Law or
accounting standards) affects the Shares, the Company,
 
its Affiliates or the Company’s financial
statements, the Committee may (A) equitably adjust any or all of (1) the number of Shares or
other securities of the Company (or number and kind of other securities or property) with respect
to which Awards may be
 
granted,
 
including the Share Limit and the ISO Limit, and (2) the terms
of any outstanding Award,
 
including (x) the number of Shares or other securities of the Company
(or number and kind of other securities or property) subject to such Award
 
or to which such
Awa
 
rd relates (including through the assumption of such Award
 
by another entity or substitution
of such Award
 
for an award issued by another entity),
 
(y) the Exercise Price, if applicable, with
respect to such Award
 
and (z) the vesting terms (including performance goals) applicable to such
Award, (B) make provision
 
for a cash payment to the holder of an outstanding Award in
consideration for the cancelation of such Award, including,
 
in the case of an outstanding Option
or SAR, a cash payment to the holder of such Option or SAR in consideration for the cancelation
of such Option or SAR in an amount equal to the excess, if any, of the Fair Market Value
 
(as of a
date specified by the Committee) of the Shares subject to such Option or SAR over the aggregate
Exercise
 
Price of such Option or SAR, (C) cancel and terminate any Option or SAR having a
per-Share Exercise Price equal to, or in excess of, the Fair Market Value
 
of a Share subject to
such Option or SAR without any payment or consideration therefor or (D) in the case of an
outstanding Option or SAR, establishing a date upon which such Award
 
will expire unless
exercised prior thereto.
(c)
 
Substitute Awards
 
.
 
Awards
 
may be granted under the Plan in assumption of,
or in substitution for, outstanding awards previously granted by the Company or any of its
Affiliates or a company acquired by the Company or any of its Affiliates or with which the
Company or any of its Affiliates combines (“Substitute Awards”);
 
provided,
 
however, that in no
event may any Substitute Award be
 
granted in a manner that would violate the prohibitions on
repricing of Options and SARs set forth in Section 7(d).
 
The number of Shares underlying any
Substitute Awards
 
shall not be counted against the Share Limit; provided, however, that
Substitute Awards
 
issued or intended as Incentive Stock Options shall be counted against the
ISO Limit.
(d)
 
Sources of Shares Deliverable Under Awards.
 
Any Shares delivered
pursuant to an Award
 
may consist, in whole or in part, of authorized and unissued Shares,
treasury Shares or Shares reacquired by the Company in any manner.
 
 
 
 
 
 
 
 
 
 
 
9
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SECTION 5.
 
Eligibility.
 
Any Eligible Person shall be eligible to receive an
Award.
SECTION 6.
 
Awards.
 
(a)
 
Types of Awards
 
.
 
Awards
 
may be made under the
Plan in the form of (i) Options (including Incentive Stock Options), (ii) SARs, (iii) Restricted
Shares, (iv) RSUs, (v) Cash Incentive Awards or
 
(vi) other equity-based or equity-related
Awards that the Committee
 
determines are consistent with the purpose of the Plan and the
interests of the Company.
 
The Committee shall determine all terms and conditions of each
Award (including
 
any Performance Criteria applicable thereto), which shall be set forth in the
applicable Award Agreement.
(b)
 
Options.
 
(i)
 
General.
 
Each Option shall be a Nonqualified Stock Option
unless the applicable Award
 
Agreement expressly states that the Option is intended to be an
Incentive Stock Option.
 
In the case of Incentive Stock Options, the terms and conditions of such
Awards shall be subject
 
to and comply with such rules as may be prescribed by Section 421 and
422 of the Code and any regulations related thereto, as may be amended from time to time.
 
If,
for any reason, an Option intended to be an Incentive Stock Option (or any portion thereof) shall
not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such
Option (or portion thereof) shall be regarded as a Nonqualified Stock Option appropriately
granted under the Plan.
(ii)
 
Exercise Price.
 
The Exercise Price of each Share covered by each
Option shall be not less than 100% of the Fair Market Value
 
of such Share (determined as of the
date the Option is granted); provided, however, that in the case of each Incentive Stock Option
granted to an employee who, at the time of the grant of such Option, owns stock representing
more than 10% of the voting power of all classes of stock of the Company or any Affiliate, the
per-Share Exercise Price shall be no less than 110% of the Fair Market Value
 
per Share on the
date of the grant.
(iii)
 
Vesting
 
and Exercise.
 
Except as otherwise specified in the applicable
Award Agreement,
 
each Option may only be exercised to the extent that it has vested at the time
of exercise.
 
Each Option shall be deemed to be exercised when notice of such exercise has been
given to the Company in accordance with the terms of the applicable Award
 
Agreement and full
payment pursuant to Section 6(b)(iv) for the Shares with respect to which the Option is exercised
has been received by the Company.
(iv)
 
Payment.
 
No Shares shall be delivered pursuant to any exercise of an
Option until payment in full of the aggregate Exercise Price therefor is received by the Company.
 
Such payments may be made in cash (or its equivalent) or, in the Committee’s
 
discretion,
through any other method (or combination of methods) approved by the Committee.
(v)
 
Expiration.
 
Except as otherwise set forth in the applicable Award
Agreement or required by Applicable Law, each Option shall expire immediately,
 
without any
payment, upon the earlier of (A) the tenth anniversary of the date the Option is granted and
(B) three months after the date the Participant who is holding the Option ceases to be a director,
officer, employee or consultant of the Company or one of its Affiliates.
 
 
 
 
 
 
 
 
 
10
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(c)
 
SARs.
(i)
 
Exercise Price.
 
The Exercise Price of each Share covered by a SAR
shall be not less than 100% of the Fair Market Value
 
of such Share (determined as of the date the
SAR is granted).
(ii)
 
Rights on Exercise.
 
Except as otherwise specified in the applicable
Award Agreement,
 
each SAR may only be exercised to the extent that it has vested at the time of
exercise.
 
Each SAR shall entitle the Participant to receive an amount of cash upon exercise
equal to the excess, if any, of the Fair Market Value
 
of a Share on the date of exercise of the
SAR over the Exercise Price thereof.
(iii)
 
Expiration.
 
Except as otherwise set forth in the applicable Award
Agreement or required by Applicable Law, each SAR shall expire immediately,
 
without any
payment, upon the earlier of (A) the tenth anniversary of the date the SAR is granted and
(B) three months after the date the Participant who is holding the SAR ceases to be a director,
officer, employee or consultant of the Company or one of its Affiliates.
(d)
 
Restricted Shares and RSUs.
(i)
 
Restricted Shares.
 
Each Restricted Share shall be subject to the
transfer restrictions and vesting and forfeiture provisions set forth in the applicable Award
Agreement.
 
If certificates representing Restricted Shares are registered in the name of the
applicable Participant, such certificates shall bear an appropriate legend referring to the terms,
conditions and restrictions applicable to such Restricted Shares, and the Company may, at its
discretion, retain physical possession of such certificates until such time as all applicable
restrictions lapse.
(ii)
 
RSUs.
 
Each RSU shall be granted with respect to a specified number
of Shares (or a number of Shares determined pursuant to a specified formula) or shall have a
value equal to the Fair Market Value
 
of a specified number of Shares (or a number of Shares
determined pursuant to a specified formula).
 
RSUs shall be paid in cash, Shares, other securities,
other Awards
 
or other property, upon the vesting thereof or such other date (or upon such other
event) specified in the applicable Award
 
Agreement.
(e)
 
Cash Incentive Awards.
 
The Committee shall determine the applicable
Performance Criteria and other payment conditions with respect to each Cash Incentive Award.
 
The Committee may, in its discretion, reduce or increase the amount of any payment otherwise
to be made in connection with Cash Incentive Awards.
(f)
 
Other Stock-Based Awards
 
.
 
The Committee shall have authority to grant to
Participants other equity-based or equity-related Awards
 
(whether payable in cash, equity or
otherwise), including fully vested Shares, in such amounts and subject to such terms and
conditions as the Committee shall determine.
 
 
 
 
 
11
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SECTION 7.
 
General Award
 
Terms.
(a)
 
Dividends and Dividend Equivalents.
 
Any Award
 
(other than an Option,
SAR or Cash Incentive Award) may provide the Participant
 
with dividends or dividend
equivalents, payable in cash, Shares, other securities, other Awards
 
or other property, on a
current or deferred or vested or unvested basis, including (i) payment directly to the Participant,
(ii) withholding of such amounts by the Company subject to vesting of the Award
 
or
(iii) reinvestment in additional Shares, Restricted Shares or other Awards.
(b)
 
Recoupment of Awards
 
.
 
Awards shall be subject
 
to the Company’s
compensation recoupment policy as may be established or amended from time to time (the
“Clawback Policy”).
 
The Company may require a Participant to forfeit, return or reimburse the
Company all or a portion of the Award and any
 
amounts paid thereunder pursuant to the terms of
the Clawback Policy or as necessary or appropriate to comply with Applicable Laws.
(c)
 
Repricing.
 
Notwithstanding anything herein to the contrary, in no event may
any Option or SAR (i) be amended to decrease the Exercise Price thereof, (ii) be canceled at a
time when its Exercise Price exceeds the Fair Market Value
 
of the underlying Shares in
exchange for another Award,
 
award under any other equity- compensation plan or any cash
payment or (iii) be subject to any action that would be treated, for accounting purposes, as a
“repricing” of such Option or SAR, unless such amendment, cancelation or action is approved by
the Company’s stockholders.
 
For the avoidance of doubt, an adjustment to the Exercise Price of
an Option or SAR that is made in accordance with Section 4(b) shall not be considered a
reduction in Exercise Price or “repricing” of such Option or SAR.
SECTION 8.
 
Change of Control.
 
(a)
 
Unless otherwise determined by the Committee or otherwise provided in the
Award Agreement,
 
in the event of a Change of Control in which no provision is made for
(i) assumption of Awards
 
previously granted or (ii) substitution for such Awards of new awards
covering stock of a successor corporation or its parent corporation or any of its Subsidiaries with
appropriate adjustments as to the number and kinds of shares and the exercise prices, if
applicable, (A) any outstanding Options or SARs that are unexercisable or otherwise unvested
will automatically be deemed exercisable or otherwise vested, as the case may be, as of
immediately prior to such Change of Control, and in accordance with this Section 8(a), the
Committee will have authority to (x) make provision for a cash payment to the holder of such
Option or SAR in consideration for the cancelation of such Option or SAR in an amount equal to
the excess, if any, of the Fair Market Value
 
(as of a date specified by the Committee) of the
Shares subject to such Option or SAR over the aggregate exercise price of such Option or SAR
or (y) if deemed appropriate or desirable by the Committee, cancel and terminate any Option or
SAR having a per-Share exercise price equal to, or in excess of, the Fair Market Value
 
of a Share
subject to such Option or SAR (as of a date specified by the Committee) without any payment or
consideration therefor, (B) all Performance Criteria will automatically be deemed satisfied as of
immediately prior to such Change of Control as if the date of the Change of Control were the last
day of the applicable performance period, at either the target or actual level of performance (as
determined by the Committee), and the Awards subject
 
to such Performance Criteria will be paid
out as soon as practicable following such Change of Control (in cash, securities or other
 
12
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property) or such later date as may be required to comply with Section 409A of the Code, to the
extent Section 409A of the Code is or is likely to become applicable to any Participant and
(C) all other outstanding Awards (i.e.,
 
other than Options, SARs and Awards
 
subject to
Performance Criteria) then held by Participants that are unexercisable, unvested or still subject to
restrictions or forfeiture, will automatically be deemed exercisable and vested and all restrictions
and forfeiture provisions related thereto will lapse, as the case may be, as of immediately prior to
such Change of Control and will be paid out (in cash, securities or other property) within 30 days
following such Change of Control or such later date as may be required to comply with Section
409A of the Code, to the extent Section 409A of the Code is or is likely to become applicable to
such Participants.
(b)
 
Unless otherwise determined by the Committee or otherwise provided in the
Award Agreement
 
or in another contractual agreement with a Participant, if within 24 months
following a Change of Control in which the acquirer assumes Awards
 
previously granted or
substitutes Awards
 
for new awards covering stock of a successor corporation or its parent
corporation or any of its Subsidiaries in the manner set forth in Section 8(a) hereof, a
Participant’s service relationship is terminated by the Company (or its successor) without Cause,
(i) any outstanding Options or SARs then held by such Participant that are unexercisable or
otherwise unvested will automatically be deemed exercisable or otherwise vested, as the case
may be, as of the date of such termination, and will remain exercisable until the earlier of the
expiration of the existing term of such Option or SAR and 90 days following the date of such
termination, (ii) all Awards
 
then subject to Performance Conditions then held by such Participant
will automatically vest as of the date of such termination, as if such date were the last day of the
applicable performance period, at either the target or actual level of performance (as determined
by the Committee), and such deemed earned amount will be paid out as soon as practicable
following such termination (in cash, securities or other property) or such later date as may be
required to comply with Section 409A of the Code, to the extent Section 409A of the Code is or
is likely to become applicable to such Participant and (C) all other outstanding Awards
 
(i.e.,
other than Options, SARs and Awards subject
 
to Performance Conditions) then held by such
Participant that are unexercisable, unvested or still subject to restrictions or forfeiture, will
automatically be deemed exercisable and vested and all restrictions and forfeiture provisions
related thereto will lapse as of the date of such termination and will be paid out (in cash,
securities or other property) as soon as practicable following such date of termination or such
later date as may be required to comply with Section 409A of the Code, to the extent Section
409A of the Code is or is likely to become applicable to such Participant.
(c)
 
For the purposes of this Section 8, an Award
 
will be considered assumed or
substituted if appropriate adjustments are made to the number and kind of shares and exercise
prices, if applicable, as the Committee determines will preserve the material terms and
conditions of such Award
 
as in effect immediately prior to the Change of Control, including with
respect to vesting schedule, intrinsic value of the Award
 
(if any) as of the Change of Control,
transferability of shares underlying such Award
 
and that, following the Change of Control, the
Award
 
confers the right to purchase or receive, for each Share subject to the Award immediately
prior to the Change of Control, the consideration (whether stock, cash, or other securities or
property) received in the Change of Control by holders of Class A Common Stock for each Share
held on the effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of the outstanding
 
 
 
 
 
 
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Shares); provided, however,
 
that if such consideration received in the Change of Control is not
solely common stock of the successor corporation or its parent corporation, the Committee may,
with the consent of the successor corporation, provide for the consideration to be received upon
the exercise of an Option or SAR or upon the payout of another award for each Share subject to
such Award, to be
 
solely common stock of the successor corporation or its parent corporation
equal in fair market value to the per share consideration received by holders of Class A Common
Stock in the Change of Control.
(d)
 
With respect to an Award
 
that constitutes deferred compensation within the
meaning of Section 409A of the Code, to the extent Section 409A of the Code is or is likely to
become applicable to the Participant holding such Award,
 
payment or settlement of such Award
may accelerate upon a Change of Control for purposes of the Plan or any Award
 
Agreement only
if such Change of Control also constitutes a “change in ownership”, “change in effective control”
or “change in the ownership of a substantial portion of the Company’s assets” as defined under
Section 409A of the Code (it being understood that vesting of the Award may
 
accelerate upon a
Change of Control, even if payment or settlement of the Award
 
may not accelerate pursuant to
this sentence.
SECTION 9.
 
General Provisions.
 
(a)
 
Nontransferability.
 
During the
Participant’s lifetime, each Award
 
(and any rights and obligations thereunder) shall be
exercisable only by the Participant, or, if permissible under Applicable Law,
 
by the Participant’s
legal guardian or representative, and no Award
 
(or any rights and obligations thereunder) may be
assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a
Participant otherwise than by will or by the laws of descent and distribution, and any such
purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void
and unenforceable against the Company or any Affiliate; provided that the designation of a
beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or
encumbrance. All terms and conditions of the Plan and the applicable Award
 
Agreements shall
be binding upon any permitted successors and assigns.
(b)
 
No Rights to Awards
 
.
 
No Participant or other Person shall have any claim to
be granted any Award,
 
and there is no obligation for uniformity of treatment of Participants or
holders or beneficiaries of Awards.
 
The terms and conditions of Awards
 
and the Committee’s
determinations and interpretations with respect thereto need not be the same with respect to each
Participant and may be made selectively among Participants, whether or not such Participants are
similarly situated.
(c)
 
Share Certificates.
 
All certificates for Shares or other securities of the
Company or any Affiliate delivered under the Plan pursuant to any Award
 
or the exercise thereof
shall be subject to such stop transfer orders and other restrictions as the Committee may deem
advisable under the Plan, the applicable Award Agreement or the rules, regulations
 
and other
requirements of the SEC, the Applicable Exchange and any Applicable Law and the Committee
may cause a legend or legends to be put on any such certificates to make appropriate reference to
such restrictions.
 
Notwithstanding any other provision of the Plan, unless otherwise determined
by the Committee or required by any Applicable Law, the Company shall not deliver to any
Participant certificates evidencing Shares issued in connection with any Award
 
and instead such
 
 
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Shares shall be recorded in the books of the Company (or, as applicable, its transfer agent or
stock plan administrator).
(d)
 
Withholding.
 
A Participant may be required to pay to the Company or any
Affiliate, and the Company or any Affiliate shall have the right and is hereby authorized to
withhold from any Award,
 
from any payment due or transfer made under any Award
 
or under
the Plan or from any compensation or other amount owing to a Participant, the amount (in cash,
Shares, other securities, other Awards
 
or other property) of any applicable withholding taxes in
respect of an Award, its
 
exercise or any payment or transfer under an Award
 
or under the Plan
and to take such other action as may be necessary in the opinion of the Committee or the
Company to satisfy all obligations for the payment of such taxes, except to the extent such
withholding would result in penalties under Section 409A of the Code.
 
Without limiting the
generality of the foregoing, subject to the Committee’s prior approval, a Participant may satisfy,
in whole or in part, such withholding liability by having the Company withhold from the number
of Shares otherwise issuable pursuant to the Award,
 
a number of Shares having a Fair Market
Value
 
equal to such withholding liability.
(e)
 
Section 409A.
 
(i)
 
It is intended that the provisions of the Plan comply with
Section 409A of the Code, and all provisions of the Plan shall be construed and interpreted in a
manner consistent with the requirements for avoiding taxes or penalties under Section 409A of
the Code.
(ii)
 
No Participant or the creditors or beneficiaries of a Participant shall
have the right to subject any deferred compensation (within the meaning of Section 409A of the
Code) payable under the Plan to any anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment or garnishment.
 
Except as permitted under Section 409A of the Code,
any deferred compensation (within the meaning of Section 409A of the Code) payable to any
Participant or for the benefit of any Participant under the Plan may not be reduced by, or offset
against, any amount owing by any such Participant to the Company or any of its Affiliates.
(iii)
 
If, at the time of a Participant’s separation from service (within the
meaning of Section 409A of the Code), (A) such Participant shall be a specified employee
(within the meaning of Section 409A of the Code and using the identification methodology
selected by the Company from time to time) and (B) the Company shall make a good faith
determination that an amount payable pursuant to an Award
 
constitutes deferred compensation
(within the meaning of Section 409A of the Code) the payment of which is required to be
delayed pursuant to the six-month delay rule set forth in Section 409A of the Code in order to
avoid taxes or penalties under Section 409A of the Code, then the Company shall not pay such
amount on the otherwise scheduled payment date but shall instead pay it on the first business day
after such six-month period.
 
Such amount shall be paid without interest, unless otherwise
determined by the Committee, in its sole discretion, or as otherwise provided in any applicable
employment agreement between the Company and the relevant Participant. For purposes of
Section 409A of the Code, any right to a series of installment payments under any Award
 
shall
be treated as a right to a series of separate payments.
(iv)
 
Notwithstanding any provision of the Plan to the contrary, in light of
the uncertainty with respect to the proper application of Section 409A of the Code, the Company
 
 
 
 
 
 
15
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reserves the right to make amendments to any Award
 
as the Company deems necessary or
desirable to avoid the imposition of taxes or penalties under Section 409A of the Code.
 
In any
case, a Participant shall be solely responsible and liable for the satisfaction of all taxes and
penalties that may be imposed on such Participant or for such Participant’s account in connection
with an Award
 
(including any taxes and penalties under Section 409A of the Code), and neither
the Company nor any of its Affiliates shall have any obligation to indemnify or otherwise hold
such Participant harmless from any or all of such taxes or penalties.
(f)
 
Award Agreements.
 
Each Award hereunder
 
shall be evidenced by an Award
Agreement, which shall be delivered to the Participant and shall specify the terms and conditions
of the Award
 
and any rules applicable thereto.
(g)
 
No Limit on Other Compensation Arrangements.
 
Nothing contained in the
Plan shall prevent the Company or any Affiliate from adopting or continuing in effect other
compensation arrangements (including other equity-based awards and cash incentive awards),
and such arrangements may be either generally applicable or applicable only in specific cases.
(h)
 
No Right to Employment.
 
The grant of an Award
 
shall not be construed as
giving a Participant the right to be retained as a director, officer,
 
employee or consultant of or to
the Company or any Affiliate, nor shall it be construed as giving a Participant any rights to
continued service on the Board.
 
Further, the Company or an Affiliate may at any time dismiss a
Participant from employment or discontinue any directorship or consulting relationship, free
from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or
in any Award
 
Agreement.
(i)
 
No Rights as Stockholder.
 
No Participant or holder or beneficiary of any
Award shall have
 
any rights as a stockholder with respect to any Shares to be distributed under
the Plan until he or she has become the holder of such Shares.
 
In connection with each grant of
Restricted Shares, except as provided in the applicable Award
 
Agreement, the Participant shall
be entitled to the rights of a stockholder (including the right to vote) in respect of such Restricted
Shares.
 
Except as otherwise provided in Section 4(b) or the applicable Award
 
Agreement, no
adjustments shall be made for dividends or distributions on (whether ordinary or extraordinary,
and whether in cash, Shares, other securities or other property), or other events relating to,
Shares subject to an Award
 
for which the record date is prior to the date such Shares are
delivered.
(j)
 
Governing Law.
 
The validity, construction and effect of the Plan
 
and any
rules and regulations relating to the Plan and any Award Agreement
 
shall be determined in
accordance with the laws of the State of Delaware, without giving effect to the conflict of laws
provisions thereof.
(k)
 
Severability.
 
If any provision of the Plan or any Award is or becomes or is
deemed to be invalid, illegal or unenforceable in any jurisdiction or as to any Person or Award,
or would disqualify the Plan or any Award under
 
any law deemed applicable by the Committee,
such provision shall be construed or deemed amended to conform to such law, or if it cannot be
construed or deemed amended without, in the determination of the Committee, materially
altering the intent of the Plan or the Award, such
 
provision shall be construed or deemed stricken
 
 
 
 
 
 
 
 
 
16
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as to such jurisdiction, Person or Award
 
and the remainder of the Plan and any such Award
 
shall
remain in full force and effect.
(l)
 
Other Laws; Restrictions on Transfer of Shares.
 
The Committee may refuse
to issue or transfer any Shares or other consideration under an Award
 
if it determines that the
issuance or transfer of such Shares or such other consideration might violate any Applicable Law
or entitle the Company to recover the same under Section 16(b) of the Exchange Act, and any
payment tendered to the Company by a Participant, other holder or beneficiary in connection
with the exercise of such Award shall be promptly
 
refunded to the relevant Participant, holder or
beneficiary.
(m)
 
No Trust or Fund Created.
 
Neither the Plan nor any Award
 
shall create or be
construed to create a trust or separate fund of any kind or a fiduciary relationship between the
Company or any Affiliate, on one hand, and a Participant or any other Person, on the other.
 
To
the extent that any Person acquires a right to receive payments from the Company or any
Affiliate pursuant to an Award,
 
such right shall be no greater than the right of any unsecured
general
 
creditor of the Company or such Affiliate.
(n)
 
No Fractional Shares.
 
No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award,
 
and the Committee shall determine whether cash, other
securities or other property shall be paid or transferred in lieu of any fractional Shares or whether
such fractional Shares or any rights thereto shall be canceled, terminated or otherwise eliminated.
(o)
 
Headings and Construction.
 
Headings are given to the Sections and
subsections of the Plan solely as a convenience to facilitate reference.
 
Such headings shall not
be deemed in any way material or relevant to the construction or interpretation of the Plan or any
provision thereof.
 
Whenever the words “include”, “includes” or “including” are used in the
Plan, they shall be deemed to be followed by the words “but not limited to”, and the word “or”
shall not be deemed to be exclusive.
SECTION 10.
 
Amendment and Termination.
 
(a)
 
Amendments to the Plan.
 
Subject to any Applicable Law, the Plan may be amended, modified or terminated by the Board
without the approval of the stockholders of the Company, except that stockholder approval shall
be required for any amendment that would (i) increase the Share Limit, the ISO Limit or the
Director Pay Limit (except for increases pursuant to an adjustment under Section 4(b)) or an
increase under Section 4(a), (ii) expand the class of employees or other individuals eligible to
participate in the Plan, (iii) extend the Expiration Date or (iv) result in any amendment,
cancellation or action described in Section 7(d) being permitted without the approval of the
Company’s stockholders.
 
No amendment, modification or termination of the Plan may, without
the consent of the Participant to whom any Award
 
shall previously have been granted, materially
and adversely affect the rights of such Participant (or his or her transferee) under such Award,
unless otherwise provided in the applicable Award
 
Agreement.
(b)
 
Amendments to Awards.
 
The Committee may waive any conditions or rights
under, amend any terms of, or alter, suspend, discontinue,
 
cancel or terminate any Award
previously granted, prospectively or retroactively; provided, however, that, except as set forth in
the Plan, unless otherwise provided in the applicable Award
 
Agreement, any such waiver,
 
17
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amendment, alteration, suspension, discontinuance, cancelation or termination that would
materially and adversely affect the rights of any Participant (or his or her transferee) under any
Award previously
 
granted shall not to that extent be effective without the consent of the
applicable Participant or transferee.
SECTION 11.
 
Term of the Plan.
 
The Plan shall be effective as of the date of its
adoption by the Board and approval by the Company’s stockholders (the “Effective Date”).
 
No
Award shall be granted under the Plan after the tenth
 
anniversary of the Effective Date (the
“Expiration Date”).
 
Unless otherwise expressly provided in the Plan or in an applicable Award
Agreement, any Award
 
granted hereunder, and the authority of the Board or the Committee to
amend, alter, adjust, suspend, discontinue or terminate any such Award
 
or to waive any
conditions or rights under any such Award, shall nevertheless
 
continue thereafter.
exhibit231
 
 
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
 
FIRM
We
 
hereby consent
 
to the incorporation
 
by reference in
 
this Registration Statement
 
on Form S-8
 
of our report
 
dated
March 27,
 
2023 relating
 
to the consolidated
 
financial statements,
 
which appears
 
in Vaxxinity
 
,
 
Inc.’s
 
Annual Report
on Form 10-K for the year ended December 31, 2022.
 
Armanino LLP
 
San Ramon, California
April 28, 2023