Annex B
CERTIFICATE OF DESIGNATIONS OF
SERIES [] CONVERTIBLE PREFERRED STOCK,
OF
AEVA TECHNOLOGIES, INC.
2022 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose. The purposePursuant to Section 151 of the Plan is to provide Eligible Employees with an opportunity to purchase shares of Common Stock through accumulated Contributions. The Company intends for the Plan to have two components: a Code Section 423 Component (“423 Component”) and a non-Code Section 423 Component (“Non-423 Component”). The Company intends to have the 423 Component of the Plan qualify as an “employee stock purchase plan” under Section 423 of the Code. The provisions of the 423 Component, accordingly, will be construed so as to extend and limit Plan participation in a uniform and nondiscriminatory basis consistent with the requirements of Section 423 of the Code. In addition, the Plan authorizes the grant of an option to purchase shares of Common Stock under the Non-423 Component that does not qualify as an “employee stock purchase plan” under Section 423 of the Code; such an option will be granted pursuant to rules, procedures or sub-plans adopted by the Administrator designed to achieve tax, securities laws or other objectives for Eligible Employees and the Company. Except as otherwise provided herein, the Non-423 Component will operate and be administered in the same manner as the 423 Component.
2. Definitions.
(a) “423 Component” is defined in Section 1 of the Plan.
(b) “Administrator” means the Committee or the Board, or, subject to the rules and interpretive determinations promulgated by the Committee, any officer(s) or employee(s) of the Company to whom the Committee has delegated the authority to handle the operation and administration of the Plan. The Administrator also shall include any third-party vendor or broker/administrator hired by the Committee to assist with the day-to-day operation and administration of the Plan.
(c) “Affiliate” means any entity, other than a Subsidiary, that is an “affiliate” within the meaning of Rule 12b-2 promulgated under Section 12 of the Exchange Act.
(d) “Applicable Laws” means the requirements relating to the administration of equity-based awards and the related issuance of shares of Common Stock under U.S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable securities and exchange control laws of any foreign country or jurisdiction where options are, or will be, granted under the Plan.
(e) “Board” means the Board of Directors of the Company.
(f) “Change in Control” shall have the meaning given such term in the Aeva Technologies Inc. 2021 Incentive Award Plan or any successor plan thereto, in each case, asDelaware General Corporation Law (as amended, and/supplemented or restated from time to time.
(g)time, the “CodeDGCL” means), AEVA TECHNOLOGIES, INC., a corporation organized and existing under the U.S. Internal Revenue Code of 1986, as amended. References to a specific Sectionlaws of the CodeState of Delaware (the “Company”), in accordance with the provisions of Section 103 of the DGCL, DOES HEREBY CERTIFY:
That the Second Amended and Restated Certificate of Incorporation of the Company (as amended from time to time, the “Certificate of Incorporation”), authorizes the issuance of 432,000,000 shares of capital stock, consisting of 422,000,000 shares of common stock, par value $0.0001 per share (“Common Stock”), and 10,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”);
That, pursuant to the provisions of the Certificate of Incorporation, the board of directors of the Company (the “Board”) is authorized to fix by resolution or U.S. Treasury Regulation thereunder will include such Section or regulation,resolutions the designations and the powers, including voting powers, if any, valid regulationpreferences and relative, participating, optional or other official applicable guidance promulgated under such Section,special rights, if any, and any comparable provisionthe qualifications, limitations or restrictions thereof, of any future legislation or regulation amending, supplementing or supersedingseries of Preferred Stock, and to fix the number of shares constituting any such Section or regulation.series; and
(h) “Committee” meansThat, pursuant to the Compensation Committee ofauthority conferred upon the Board and any successor committee thereto or such other committeeby the Certificate of Incorporation, the Board adopted the following resolution designating a new series of Preferred Stock as may be designated by“Series [] Convertible Preferred Stock”:
RESOLVED, that, pursuant to the Board to administer the Planauthority vested in whole or in part, including any subcommittee of the Board as designated by the Board in accordance with the provisions of Article IV of the Certificate of Incorporation and the provisions of Section 14 hereof.
(i) “Common151 of the DGCL, a series of Preferred Stock” means the common stock of the Company $0.0001 par value per share (and any stockis hereby authorized, and the number of shares to be included in such series, and the powers (including voting powers), designations, preferences and relative, participating, optional or other securities into whichspecial rights, and the qualifications, limitations and restrictions of the shares of Preferred Stock included in such Commonseries, shall be as follows:
SECTION 1. Designation and Number of Shares. The shares of such series of Preferred Stock shall be designated as “Series [] Convertible Preferred Stock” (the “Series [ ] Preferred Stock”). The number of authorized shares constituting the Series [] Preferred Stock shall be []. That number from time to time may be convertedincreased or into which it may be exchanged).
(j) “Company” means Aeva Technologies, Inc.,decreased by further resolution duly adopted by the Board, or any duly authorized committee thereof and by the filing of a Delaware corporation, and any successor thereto.
(k) “Compensation” means an Eligible Employee’s base salary or hourly wages. The Administrator, in its discretion, may, on a uniform and nondiscriminatory basis, establish a different definition of Compensation for a subsequent Offering Period.
(l) “Contributions” means the payroll deductions and other additional payments that the Company may permit to be made by a Participant to fund the exercise of options grantedcertificate pursuant to the Plan.provisions of the DGCL stating that such increase or decrease, as applicable, has been so authorized. The Company shall not have the authority to issue fractional shares of Series [] Preferred Stock.
SECTION 2. Ranking. The Series [] Preferred Stock will rank, with respect to dividend rights and rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company:
(a) on a parity basis with each other class or series of Capital Stock of the Company now existing or hereafter authorized, the terms of which expressly provide that such class or series ranks on a parity basis with the Series [] Preferred Stock as to dividend rights and rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company (such Capital Stock, “Parity Stock”);
(b) junior to each other class or series of Capital Stock of the Company now existing or hereafter authorized, the terms of which expressly provide that such class or series ranks senior to the Series [] Preferred Stock as to dividend rights and rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company (such Capital Stock, “Senior Stock”); and
(c) senior to the Common Stock and each other class or series of Capital Stock of the Company (other than the Parity Stock) now existing or hereafter authorized, the terms of which do not expressly provide that such class or series ranks on a parity basis with or senior to the Series [] Preferred Stock as to dividend rights and rights on the distribution of assets on any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company (such Capital Stock, “Junior Stock”).
