Exhibit 10.28


 


Executive version


 


MIROMATRIX MEDICAL INC.


2019 EQUITY INCENTIVE PLAN





 


1.       Purpose.
The purpose of the Miromatrix Medical Inc. 2019 Equity Incentive Plan (the “Plan”) is to attract and retain the best available
personnel for positions of responsibility with the Company, to provide additional incentives to them and align their interests with those
of the Company’s stockholders, and to thereby promote the Company’s long-term business success.


 


2.       Definitions.
In this Plan, the following definitions will apply.


 


(a)       “Affiliate”
means any corporation that is a Subsidiary or Parent of the Company.


 


(b)       “Agreement”
means the written or electronic agreement, notice or other document containing the terms and conditions applicable to each Award granted
under the Plan. An Agreement is subject to the terms and conditions of the Plan.


 


(c)       “Award”
means a grant made under the Plan in the form of Options, Stock Appreciation Rights, Restricted Stock, Stock Units or an Other Stock-Based
Award.


 


(d)       “Board”
means the Board of Directors of the Company.


 


(e)       “Cause”
means, unless otherwise defined in a then-effective written agreement (including an Agreement) between a Participant and the Company or
any Affiliate, a Participant’s (i) failure or refusal to perform satisfactorily the duties reasonably required of the Participant
by the Company (other than by reason of Disability) in any material respect; (ii) material violation of any law, rule, regulation, court
order or Company code of conduct; (iii) material breach of any fiduciary duty to the Company or any Affiliate; (iv) material breach of
any nondisclosure, non-solicitation, non-competition or similar obligation owed to the Company or any of its Affiliates; or (v) engaging
in dishonorable or disruptive behavior, practices or acts which would be reasonably expected to harm or bring disrepute to Company or
any of its Affiliates, their business or any of their customers, employees or vendors.


 


(f)       “Change
in Control” means, unless otherwise defined in a then-effective written agreement (including an Agreement) between a Participant
and the Company or any Affiliate hereunder:


 


(1)     any person becomes
after the effective date of the Plan the “beneficial owner” (as defined in Rule 13d-3 under the Securities and Exchange Act
of 1934, as amended (the “Exchange Act”), directly or indirectly, of:


 


(A)     20% or more, but
not 50% or more, of the combined voting power of the Company’s outstanding equity securities ordinarily having the right to vote
in matters submitted to a vote of the Company’s stockholders, unless the transaction resulting in such ownership has been approved
in advance by the Continuing Directors; or


 


(B)     50% or more of the
combined voting power of the Company’s outstanding equity securities ordinarily having the right to vote in matters submitted to
a vote of the Company’s stockholders (regardless of any approval by the Continuing Directors); or


 






    


     


    

 


(2)     a merger or consolidation
to which the Company is a party if the Company’s stockholders immediately prior to effective date of such merger or consolidation
have “beneficial ownership” (as defined in Rule 13d-3 of the Exchange Act), immediately following the effective date
of such merger or consolidation, of securities of the surviving entity representing:


 


(A)     50% or more, but
less than 80%, of the combined voting power of the surviving entity’s then-outstanding securities ordinarily having the right to
vote in matters submitted to a vote of the owners of such entity, unless such merger or consolidation has been approved in advance by
the Continuing Directors; or


 


(B)     less than 50% of
the combined voting power of the surviving entity’s then-outstanding securities ordinarily having the right to vote in matters submitted
to a vote of the owners of such entity (regardless of any approval by the Continuing Directors); or


 


(3)     the
sale, lease, exchange or other transfer, directly or indirectly, of substantially all of the assets of the Company (in one transaction
or in a series of related transactions) to a person or entity that is not controlled by the Company; or


 


(4)     the consummation
of a complete liquidation or dissolution of the Company.


 


Notwithstanding the foregoing, any transaction
that is fundamentally a financing transaction, as determined in good faith by the Board, shall not be deemed a change of control for the
purposes of the Plan. In addition, if any repurchase or other acquisition by the Company of its outstanding equity securities causes any
person to become the beneficial owner of the combined voting power of the Company’s outstanding equity securities over the threshold
amounts referenced in clauses 1(A) and 1(B) above, then no change of control will be deemed to have occurred for the purposes of the Plan.


 


Notwithstanding the foregoing, to the extent that
any Award constitutes a deferral of compensation subject to Code Section 409A, and if that Award provides for a change in the time or
form of payment upon a Change in Control, then no Change in Control shall be deemed to have occurred upon an event described in this Section
2(f) unless the event would also constitute a change in ownership or effective control of, or a change in the ownership of a substantial
portion of the assets of, the Company under Code Section 409A.


 


(g)       “Code”
means the Internal Revenue Code of 1986, as amended and in effect from time to time. For purposes of the Plan, references to sections
of the Code shall be deemed to include any applicable regulations thereunder and any successor or similar statutory provisions.


 


(h)       “Committee”
means the Board or a committee of the Board comprised of two or more Non-Employee Directors designated by the Board to administer the
Plan.


 


(i)         “Company”
means Miromatrix Medical Inc., a Delaware corporation, and any successor thereto.


 


(j)       “Continuing
Director” means any individual who is a member of the Board on the effective date of the Plan and any individual who subsequently
becomes a member of the Board whose (i) election or nomination for election by the Company’s stockholders was approved by a vote
of at least a majority of the Continuing Directors, or (ii) appointment is permitted under the Company’s Certificate of Incorporation
and Bylaws.


 


(k)      “Disability”
means (A) any permanent and total disability under any long-term disability plan or policy of the Company or its Affiliates that covers
the Participant, or (B) if there is no such long-term disability plan or policy, “total and permanent disability” within the
meaning Code Section 22(e)(3).


 


(l)       “Employee”
means an employee of the Company or an Affiliate.





 






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(m)       “Exchange
Program” means a program under which (i) outstanding Options or SARs are surrendered or cancelled in exchange for Options or SARs
of the same type (which may have lower or higher exercise prices and different terms), Awards of a different type and/or cash, or (ii)
the exercise price of an outstanding Option or SAR is reduced. The terms and conditions of any Exchange Program shall be determined by
the Committee in its sole discretion.


 


(n)       “Fair
Market Value” means the fair market value of a Share determined as follows:


 


(1)       If
the Shares are readily tradable on an established securities market (as determined under Code Section 409A), then Fair Market Value will
be the closing or last sales price for a Share on the principal securities market on which it trades on the date for which it is being
determined, or if no sale of Shares occurred on that date, on the next preceding date on which a sale of Shares occurred, as reported
in The Wall Street Journal or such other source as the Committee deems reliable; or


 


(2)       If
the Shares are not then readily tradable on an established securities market (as determined under Code Section 409A), then Fair Market
Value will be determined by the Committee as the result of a reasonable application of a reasonable valuation method that satisfies the
requirements of Code Section 409A.


 


(o)       “Grant
Date” means the date on which the Committee approves the grant of an Award under the Plan, or such later date as may be specified
by the Committee on the date the Committee approves the Award.


 


(p)       “Group”
means two or more persons who act, or agree to act together, as a partnership, limited partnership, syndicate or other group for the purpose
of acquiring, holding, voting or disposing of securities of the Company.


 


(q)       “Non-Employee
Director” means a member of the Board who is not an Employee.


 


(r)       “Option”
means a right granted under the Plan to purchase a specified number of Shares at a specified price. An “Incentive Stock Option”
or “ISO” means any Option designated as such and granted in accordance with the requirements of Code Section 422. A “Non-Qualified
Stock Option” means an Option other than an Incentive Stock Option.


 


(s)       “Other
Stock-Based Award” means an Award described in Section 11 of this Plan.


 


(t)       “Parent”
means a “parent corporation,” as defined in Code Section 424(e).


 


(u)       “Participant”
means a Service Provider to whom a then-outstanding Award has been granted under the Plan.


 


(v)       “Plan”
means this Miromatrix Medical Inc. 2019 Equity Incentive Plan, as amended and in effect from time to time.


 


(w)      “Restricted
Stock” means Shares issued to a Participant that are subject to such restrictions on transfer, vesting conditions and other
restrictions or limitations as may be set forth in this Plan and the applicable Agreement.


 


(x)       “Service”
means the provision of services by a Participant to the Company or any Affiliate in any Service Provider capacity. A Service
Provider’s Service shall be deemed to have terminated either upon an actual cessation of providing services or upon the entity
for which the Service Provider provides services ceasing to be an Affiliate. Except as otherwise provided in this Plan or any
Agreement, Service shall not be deemed terminated in the case of (i) any approved leave of absence; (ii) transfers among the Company
and any Affiliates in any Service Provider capacity; or (iii) any change in status so long as the individual remains in the service
of the Company or any Affiliate in any Service Provider capacity.


 






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(y)       “Service
Provider” means an Employee, a Non-Employee Director, or any consultant or advisor who is a natural person and who provides services
(other than in connection with (i) a capital-raising transaction or (ii) promoting or maintaining a market in Company securities)
to the Company or any Affiliate.


 


(z)       “Share”
means a share of Stock.


 


(aa)     “Stock”
means the common stock, par value $0.00001 per share, of the Company.


 


(bb)     “Stock
Appreciation Right” or “SAR” means the right to receive, in cash and/or Shares as determined by the Committee, an amount
equal to the appreciation in value of a specified number of Shares between the Grant Date of the SAR and its exercise date.


 


(cc)     “Stock Unit”
means a right to receive, in cash and/or Shares as determined by the Committee, the Fair Market Value of a Share, subject to such restrictions
on transfer, vesting conditions and other restrictions or limitations as may be set forth in this Plan and the applicable Agreement.


 


(dd)     “Subsidiary”
means a “subsidiary corporation,” as defined in Code Section 424(f), of the Company.


 


3.       Administration
of the Plan.


 


(a)       Administration.
The authority to control and manage the operations and administration of the Plan shall be vested in the Committee in accordance with
this Section 3.


 


(b)       Scope
of Authority. Subject to the terms of the Plan, the Committee shall have the authority, in its discretion, to take such actions as
it deems necessary or advisable to administer the Plan, including:


 


(1)       determining
the Service Providers to whom Awards will be granted, the timing of each such Award, the types of Awards and the number of Shares covered
by each Award, the terms, conditions, performance criteria, restrictions and other provisions of Awards, and the manner in which Awards
are paid or settled;


 


(2)       cancelling
or suspending an Award, accelerating the vesting or extending the exercise period of an Award, or otherwise amending the terms and conditions
of any outstanding Award, subject to the requirements of Section 15(d);


 


(3)       adopting
sub plans or special provisions applicable to Awards, establishing, amending or rescinding rules to administer the Plan, interpreting
the Plan and any Award or Agreement made under the Plan, reconciling any inconsistency, correcting any defect or supplying an omission
in the Plan or any Agreement, and making all other determinations necessary or
desirable for the administration of the Plan; 


 


(4)       instituting
an Exchange Program, the terms and conditions of which shall be determined by the Committee in its sole discretion; and


 









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(5)       requiring
or permitting the deferral of the settlement of an Award, and establishing the terms and conditions of any such deferral.


 


(c)       Acts
of the Committee; Delegation. A majority of the members of the Committee shall constitute a quorum for any meeting of the Committee,
and any act of a majority of the members present at any meeting at which a quorum is present or any act unanimously approved in writing
by all members of the Committee shall be the act of the Committee. To the extent not inconsistent with applicable law or stock exchange
rules, the Committee may delegate all or any portion of its authority under the Plan to any one or more of its members or, as to Awards
that are made to Participants who are neither Non-Employee Directors nor executive officers of the Company, to one or more directors or
executive officers of the Company. The Committee may also delegate non-discretionary administrative responsibilities in connection with
the Plan to such other persons as it deems advisable.


 


(d)       Finality
of Decisions. The Committee’s interpretation of the Plan and of any Award or Agreement made under the Plan and all related decisions
or resolutions of the Board or Committee shall be final and binding on all parties with an interest therein.


 


(e)       Indemnification.
Each person who is or has been a member of the Committee or of the Board, and any other person to whom the Committee delegates authority
under the Plan, shall be indemnified by the Company, to the maximum extent permitted by law, against liabilities and expenses imposed
upon or reasonably incurred by such person in connection with or resulting from any claims against such person by reason of the performance
of the individual's duties under the Plan. This right to indemnification is conditioned upon such person providing the Company an opportunity,
at the Company’s expense, to handle and defend the claims before such person undertakes to handle and defend them on such person’s
own behalf. The Company will not be required to indemnify any person for any amount paid in settlement of a claim unless the Company has
first consented in writing to the settlement. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification
to which such person or persons may be entitled under the Company’s Certificate of Incorporation or Bylaws, as a matter of law,
or otherwise.


 


4.       Shares
Available Under the Plan.


 


(a)       Maximum
Shares Available. Subject to Section 4(b) and to adjustment as provided in Section 12(a), a total of 1,000,000 Shares may be the subject
of Awards and issued under the Plan. The maximum number of Shares that may be issued upon the exercise of Incentive Stock Options shall
equal the aggregate number of Shares stated in the previous sentence. Shares issued under the Plan may come from authorized and unissued
shares or treasury shares. In determining the number of Shares to be counted against this Share reserve in connection with any Award,
the following rules shall apply:


 


(1)       Where
the number of Shares subject to an Award is variable on the Grant Date, the number of Shares to be counted against the share reserve shall
be the maximum number of Shares that could be received under that particular Award, until such time as it can be determined that only
a lesser number of shares could be received.


 


(2)       Where
two or more types of Awards are granted to a Participant in tandem with each other, such that the exercise of one type of Award with respect
to a number of Shares cancels at least an equal number of Shares of the other, the number of Shares to be counted against the share reserve
shall be the largest number of Shares that would be counted against the share reserve under either of the Awards.


 


(3)       Awards
that may be settled solely in cash shall not be counted against the share reserve.





 






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(b)       Effect
of Forfeitures and Other Actions. Any Shares subject to an Award that is forfeited, expires, is settled for cash, is surrendered pursuant
to an Exchange Program, or otherwise does not result in the issuance of all or a portion of the Shares subject to such Award shall, to
the extent of such forfeiture, expiration, cash settlement, surrender or non-issuance, again become available for Awards under this Plan,
and the Share reserve under Section 4(a) shall be correspondingly increased. In the event that (i) any Award is exercised through the
tendering of Shares (either actually or by attestation) or by the withholding of Shares by the Company in payment of the applicable exercise
price, or (ii) any tax withholding obligations arising from such Award are satisfied by the tendering of Shares (either actually or by
attestation) or by the withholding of Shares by the Company, then the Shares so tendered or withheld shall again become available for
Awards under this Plan, and the Share reserve under Section 4(a) shall be correspondingly increased.


 


(c)       No
Fractional Shares. Unless otherwise determined by the Committee, the number of Shares subject to an Award shall always be a whole
number. No fractional Shares may be issued under the Plan, but the Committee may, in its discretion, adopt any rounding convention it
deems suitable or pay cash in lieu of any fractional Share in settlement of an Award.


 


5.       Eligibility.
Participation in the Plan is limited to Service Providers. Incentive Stock Options may only be granted to Employees.


 


6.       General
Terms of Awards.


 


(a)       Award
Agreement. Each Award shall be evidenced by an Agreement setting forth the amount of the Award together with such other terms and
conditions applicable to the Award (and not inconsistent with the Plan) as determined by the Committee. An Award to a Participant may
be made singly or in combination with any form of Award.


 


(b)       Vesting
and Term. Each Agreement shall set forth the period until the applicable Award is scheduled to vest and, if applicable, expire (which
shall not be more than ten years from the Grant Date), the applicable vesting conditions and any applicable performance period. The Committee
may provide in an Agreement for such vesting conditions and timing as it may determine.


 


(c)       Transferability.
Except as provided in this Section 6(c), (i) during the lifetime of a Participant, only the Participant or the Participant’s guardian
or legal representative may exercise an Option or SAR, or receive payment with respect to any other Award; and (ii) no Award may be sold,
assigned, transferred, exchanged or encumbered, voluntarily or involuntarily, other than by will or the laws of descent and distribution.
Any attempted transfer in violation of this Section 6(c) shall be of no effect. The Committee may, however, provide in an Agreement
or otherwise that an Award (other than an Incentive Stock Option) may be transferred pursuant to a domestic relations order or may be
transferable by gift to any “family member” (as defined in Rule 701 under the Securities Act of 1933) of the Participant.
Any Award held by a transferee shall continue to be subject to the same terms and conditions that were applicable to that Award immediately
before the transfer thereof. For purposes of any provision of the Plan relating to notice to a Participant or to acceleration or termination
of an Award upon the death or termination of Service of a Participant, the references to “Participant” shall mean the original
grantee of an Award and not any transferee.


 


(d)       Designation
of Beneficiary. To the extent permitted by the Committee, a Participant may designate a beneficiary or beneficiaries to exercise any
Award or receive a payment under any Award that is exercisable or payable on or after the Participant’s death. Any such designation
shall be on a form approved by the Committee and shall be effective upon its receipt by the Company.


 









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(e)       Termination
of Service. Unless otherwise provided in an Agreement or another then effective written agreement between a Participant and the Company,
and subject to Section 12 of this Plan, if a Participant’s Service with the Company and all of its Affiliates terminates, the following
provisions shall apply (in all cases subject to the scheduled expiration of an Option or SAR Award, as applicable):


 


(1)       Upon
termination of Service for Cause, all unexercised Option and SAR Awards and all unvested portions of any other outstanding Awards shall
be immediately forfeited without consideration.


 


(2)       Upon
termination of Service for any other reason, all unvested and unexercisable portions of any outstanding Awards shall be immediately forfeited
without consideration.


 


(3)       Upon
termination of Service for any reason other than Cause, death or Disability, the currently vested and exercisable portions of Option and
SAR Awards may be exercised for a period of three months after the date of such termination. However, if a Participant thereafter dies
during such three-month period, the vested and exercisable portions of the Option and SAR Awards may be exercised for a period of one
year after the date of such termination.


 


(4)       Upon
termination of Service due to death or Disability, the currently vested and exercisable portions of Option and SAR Awards may be exercised
within one year of the date of such termination.


 


(f)       Rights
as Stockholder. No Participant shall have any rights as a stockholder with respect to any Shares covered by an Award unless and until
the date the Participant becomes the holder of record of the Shares, if any, to which the Award relates.


 


(g)       Performance-Based
Awards. Any Award may be granted as a performance-based Award if the Committee establishes one or more measures of corporate,
business unit or individual performance which must be attained, and the performance period over which the specified performance is to
be attained, as a condition to the grant, vesting, exercisability, lapse of restrictions and/or settlement in cash or Shares of such Award.
In connection with any such Award, the Committee shall determine the extent to which performance measures have been attained and other
applicable terms and conditions have been satisfied, and the degree to which the grant, vesting, exercisability, lapse of restrictions
and/or settlement of such Award has been earned. The Committee shall also have the authority to provide, in an Agreement or otherwise,
for the modification of a performance period and/or an adjustment or waiver of the achievement of performance measures under specified
circumstances such as (i) the occurrence of events that are unusual in nature or infrequently occurring, such as a Change in Control,
an equity restructuring (as described in Section 12(a)), acquisitions, divestitures, restructuring activities, recapitalizations, or asset
write-downs, (ii) a change in applicable tax laws or accounting principles, or (iii) the Participant’s death or Disability.


 


7.       Stock
Option Awards.


 


(a)       Type
and Exercise Price. The Agreement pursuant to which an Option Award is granted shall specify whether the Option is an Incentive Stock
Option or a Non-Qualified Stock Option. The exercise price at which each Share subject to an Option may be purchased shall be determined
by the Committee and set forth in the Agreement, and shall not be less than the Fair Market Value of a Share on the Grant Date.


 


(b)       Payment
of Exercise Price. The purchase price of the Shares with respect to which an Option Award is exercised shall be payable in full
at the time of exercise. The purchase price may be paid in cash or in such other manner as the Committee may permit, including by
withholding Shares otherwise issuable to the Participant upon exercise of the Option, by delivery to the Company of Shares (by
actual delivery or attestation) already owned by the Participant (in each case, such Shares having a Fair Market Value as of the
date the Option is exercised equal to the purchase price of the Shares being purchased), by delivery of a promissory note, or a
combination thereof. Any promissory note to be accepted in payment of the exercise price of an Option Award shall contain such terms
and conditions as may be specified by the Committee, and be secured by the Option Shares and such other collateral as the Committee
may deem acceptable.


 






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(c)       Exercisability
and Expiration. Each Option Award shall be exercisable in whole or in part on the terms provided in the Agreement. An Agreement may
provide that a Participant, while still a Service Provider, may elect to exercise an Option Award in whole or in part at any time prior
to the full vesting of the Option Award. Any unvested Shares so purchased shall be subject to a repurchase right in favor of the Company
or to any other restriction the Committee deems appropriate. No Option Award shall be exercisable at any time after its scheduled expiration.
When an Option Award is no longer exercisable, it shall be deemed to have terminated.


 


(d)       Incentive
Stock Options.


 


(1)       Incentive
Stock Option Awards may be granted pursuant to the Plan only if the Company’s stockholders approve the Plan within 12 months of
its adoption by the Board. If the stockholders fail to approve the Plan within 12 months of its adoption by the Board, any Incentive Stock
Option Award already made under the Plan shall cease to be treated as an Incentive Stock Option and shall be treated for tax purposes
as a Non-Qualified Stock Option.


 


(2)       An
Option Award will constitute an Incentive Stock Option Award only if the Participant receiving the Option Award is an Employee, and only
to the extent that (i) it is so designated in the applicable Agreement and (ii) the aggregate Fair Market Value (determined as of the
Option Grant Date) of the Shares with respect to which Incentive Stock Option Awards held by the Participant first become exercisable
in any calendar year (under the Plan and all other plans of the Company and its Affiliates) does not exceed $100,000. To the extent an
Option Award granted to a Participant exceeds this limit, the Option Award shall be treated as a Non-Qualified Stock Option Award.


 


(3)       No
Participant may receive an Incentive Stock Option Award under the Plan if, immediately after the grant of such Award, the Participant
would own (after application of the rules contained in Code Section 424(d)) Shares possessing more than 10% of the total combined Voting
Power of all classes of stock of the Company or an Affiliate, unless (i) the per Share exercise price for such Award is at least 110%
of the Fair Market Value of a Share on the Grant Date and (ii) such Award will expire no later than five years after its Grant Date.


 


(4)       For
purposes of continued Service by a Participant who has been granted an Incentive Stock Option Award, no approved leave of absence may
exceed three months unless reemployment upon expiration of such leave is provided by statute or contract. If reemployment is not so provided,
then on the date six months following the first day of such leave, any Incentive Stock Option held by the Participant shall cease to be
treated as an Incentive Stock Option and shall be treated for tax purposes as a Non-Qualified Stock Option.


 


(5)       If
an Incentive Stock Option Award is exercised after the expiration of the exercise periods that apply for purposes of Code Section 422,
such Option shall thereafter be treated as a Non-Qualified Stock Option Award.


 


(6)       The
Agreement covering an Incentive Stock Option Award shall contain such other terms and provisions that the Committee determines necessary
to qualify the Option Award as an Incentive Stock Option.


 









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8.       Stock
Appreciation Right Awards. 


 


(a)       Nature
of Award. An Award of Stock Appreciation Rights shall be subject to such terms and conditions as are determined by the Committee,
and shall provide a Participant the right to receive upon exercise of the SAR Award all or a portion of the excess of (i) the Fair Market
Value as of the date of exercise of the SAR Award of the number of Shares as to which the SAR Award is being exercised, over (ii) the
aggregate exercise price for such number of Shares. The per Share exercise price for any SAR Award shall be determined by the Committee
and set forth in the applicable Agreement, and shall not be less than the Fair Market Value of a Share on the Grant Date.


 


(b)       Exercise
of SAR. Each SAR Award may be exercisable in whole or in part at the times, on the terms and in the manner provided in the Agreement.
No SAR Award shall be exercisable at any time after its scheduled expiration. When a SAR Award is no longer exercisable, it shall be deemed
to have terminated. Upon exercise of a SAR Award, payment to the Participant shall be made at such time or times as shall be provided
in the Agreement in the form of cash, Shares or a combination of cash and Shares as determined by the Committee. The Agreement may provide
for a limitation upon the amount or percentage of the total appreciation on which payment (whether in cash and/or Shares) may be made
in the event of the exercise of a SAR Award.


 


9.       Restricted
Stock Awards.


 


(a)       Vesting
and Consideration. Shares subject to a Restricted Stock Award shall be subject to vesting and the lapse of applicable restrictions
based on such conditions or factors and occurring over such period of time as the Committee may determine in its discretion. The Committee
may provide whether any consideration other than Services must be received by the Company or any Affiliate as a condition precedent to
the grant of a Restricted Stock Award, and may correspondingly provide for Company reacquisition or repurchase rights if such additional
consideration has been required and some or all of a Restricted Stock Award does not vest.


 


(b)       Shares
Subject to Restricted Stock Awards. Unvested Shares subject to a Restricted Stock Award shall be evidenced by a book-entry in the
name of the Participant with the Company or its transfer agent or by one or more Stock certificates issued in the name of the Participant.
Any such Stock certificate shall be deposited with the Company or its designee, together with an assignment separate from the certificate,
in blank, signed by the Participant, and bear an appropriate legend referring to the restricted nature of the Restricted Stock evidenced
thereby. Any book-entry shall be subject to comparable restrictions and corresponding stop transfer instructions. Upon the vesting of
Shares of Restricted Stock, and the Company’s determination that any necessary conditions precedent to the release of vested Shares
(such as satisfaction of tax withholding obligations and compliance with applicable legal requirements) have been satisfied, such vested
Shares shall be made available to the Participant in such manner as may be prescribed or permitted by the Committee. Such
vested Shares may, however, remain subject to additional restrictions as provided in Sections 16 and 17(c). 


 


(c)       Stockholder
Rights. Except as otherwise provided in this Plan or the applicable Agreement, a Participant with a Restricted Stock Award shall have
all the rights of a stockholder, including the right to vote the Shares of Restricted Stock. Unless otherwise expressly provided in an
applicable Agreement, any dividends or distributions, including regular cash dividends and distributions of Shares, securities or property
as a result of adjustments pursuant to Section 12(a), payable with respect to Shares that are subject to the unvested portion of a Restricted
Stock Award will be subject to the same restrictions and risk of forfeiture as the Shares to which such dividends or distributions relate.


 









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10.       Stock
Unit Awards.


 


(a)       Vesting
and Consideration. A Stock Unit Award shall be subject to vesting and the lapse of applicable restrictions based on such conditions
or factors and occurring over such period of time as the Committee may determine in its discretion. If vesting of a Stock Unit Award is
conditioned on the achievement of specified performance goals, the extent to which they are achieved over the specified performance period
shall determine the number of Stock Units that will be earned and eligible to vest, which may be greater or less than the target number
of Stock Units stated in the Agreement. The Committee may provide whether any consideration other than Services must be received by the
Company or any Affiliate as a condition precedent to the settlement of a Stock Unit Award.


 


(b)       Settlement
of Award. Following the vesting of a Stock Unit Award, and the Company’s determination that any necessary conditions precedent
to the settlement of the Award (such as satisfaction of tax withholding obligations and compliance with applicable legal requirements)
have been satisfied, settlement of the Award and payment to the Participant shall be made at such time or times in the form of cash, Shares
(which may themselves be considered Restricted Stock under the Plan) or a combination of cash and Shares as determined by the Committee.


 


(c)       Dividend
Equivalents. In its discretion, the Committee may provide in an Agreement for a Stock Unit Award that the Participant will be entitled
to receive dividend equivalents, based on dividends actually declared and paid on outstanding Shares, on the units subject to the Stock
Unit Award, and such dividend equivalents will be subject to the same restrictions and risk of forfeiture as the underlying units to which
such dividend equivalents relate unless otherwise provided in the applicable Agreement. The additional terms of any such dividend equivalents
will be as set forth in the applicable Agreement, including the time and form of payment and whether such dividend equivalents will be
credited with interest or deemed to be reinvested in additional units. Any Shares issued or issuable during the term of this Plan as the
result of the deemed reinvestment of dividend equivalents in connection with an Award shall be counted against, and replenish upon any
subsequent forfeiture, the Plan’s share reserve as provided in Section 4.


 


11.       Other
Stock-Based Awards. The Committee may from time to time grant Shares and other forms of Awards that are valued by reference to
and/or payable in whole or in part in Shares under the Plan. The Committee shall determine the terms and conditions of such Awards, which
shall be consistent with the terms and purposes of the Plan. The Committee may direct the Company to issue Shares subject to restrictive
legends and/or stop transfer instructions that are consistent with the terms and conditions of the Award to which the Shares relate.


 


12.       Changes
in Capitalization, Change in Control. 


 


(a)       Adjustments
for Changes in Capitalization. In the event of any equity restructuring (within the meaning of FASB ASC Topic 718) that causes
the per share value of Shares to change, such as a stock dividend, stock split, spinoff, rights offering or recapitalization through
an extraordinary dividend, the Committee shall make such adjustments as it deems equitable and appropriate to (i) the aggregate
number and kind of Shares or other securities issued or reserved for issuance under the Plan, (ii) the number and kind of Shares or
other securities subject to outstanding Awards, (iii) the exercise price of outstanding Options and SARs, and (iv) any maximum
limitations prescribed by the Plan with respect to certain types of Awards. In the event of any other change in corporate
capitalization, including a merger, consolidation, reorganization, or partial or complete liquidation of the Company, such equitable
adjustments described in the foregoing sentence may be made as determined to be appropriate and equitable by the Committee to
prevent dilution or enlargement of rights of Participants.  In either case, any such adjustment shall be conclusive and binding
for all purposes of the Plan.  No adjustment shall be made pursuant to this Section 12(a) in connection with the
conversion of any convertible securities of the Company, or in a manner that would cause Incentive Stock Options to violate Section
422(b) of the Code or cause an Award to be subject to adverse tax consequences under Section 409A of the
Code.


 






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(b)       Change
in Control. Unless otherwise provided in an applicable Agreement or another then effective written agreement between the Participant
and the Company, the following provisions shall apply to outstanding Awards in the event of a Change in Control.


 


(1)       Continuation,
Assumption or Replacement of Awards. In the event of a Change in Control, then the surviving or successor entity (or its Parent)
may continue, assume or replace Awards outstanding as of the date of the Change in Control (with such adjustments as may be required or
permitted by Section 12(a)), and such Awards or replacements therefor shall remain outstanding and be governed by their respective terms,
subject to Section 12(b)(4) below. A surviving or successor entity may elect to continue, assume or replace only some Awards or portions
of Awards. For purposes of this Section 12(b)(1), an Award shall be considered assumed or replaced if, in connection with the Change
in Control and in a manner consistent with Code Section 409A (and Code Section 424 if the Award is an ISO),
either (i) the contractual obligations represented by the Award are expressly assumed by the surviving or successor entity (or its Parent)
with appropriate adjustments to the number and type of securities subject to the Award and the exercise price thereof that preserves the
intrinsic value of the Award existing at the time of the Change in Control, or
(ii) the Participant has received a comparable equity-based award that preserves the intrinsic value of the Award existing at the time
of the Change in Control and contains terms and conditions that are substantially similar to those of the Award.


 


(2)       Acceleration.
If and to the extent that outstanding Awards under the Plan are not continued, assumed or replaced in connection with a Change in Control,
then the Committee may provide that (i) all outstanding Option and SAR Awards shall become fully exercisable for such period of time prior
to the effective time of the Change in Control as is deemed fair and equitable by the Committee, and shall terminate at the effective
time of the Change in Control, and (ii) all outstanding Restricted Stock and Stock Unit Awards shall fully vest immediately prior to the
effective time of the Change in Control. The Committee shall provide written notice of the period of accelerated exercisability of Option
and SAR Awards to all affected Participants. The exercise of any Option or SAR Award whose exercisability is accelerated as provided in
this Section 12(b)(2) shall be conditioned upon the consummation of the Change in Control and shall be effective only immediately before
such consummation.


 


(3)       Payment
for Awards. If and to the extent that outstanding Awards under the Plan are not continued, assumed or replaced in connection
with a Change in Control, then the Committee may provide that holders of some or all of such outstanding Awards shall be canceled at
or immediately prior to the effective time of the Change in Control in exchange for payments to the holders as provided in this
Section 12(b)(3). The Committee will not be required to treat all Awards similarly for purposes of this Section 12(b)(3). The
payment for any Award surrendered shall be in an amount equal to the difference, if any, between (i) the fair market value (as
determined in good faith by the Committee) of the consideration that would otherwise be received in the Change in Control for the
number of Shares subject to the Award, and (ii) the aggregate exercise price (if any) for the Shares subject to such Award. If
the amount determined pursuant to the preceding sentence is not a positive number with respect to any Award, such Award may be
canceled pursuant to this Section 12(b)(3) without payment of any kind to the affected Participant. Payment of any amount under this
Section 12(b)(3) shall be made in such form, on such terms and subject to such conditions as the Committee determines in its
discretion, which may or may not be the same as the form, terms and conditions applicable to payments to the Company’s
stockholders in connection with the Change in Control, and may, in the Committee’s discretion, include subjecting such
payments to vesting conditions comparable to those of the Award surrendered, subjecting such payments to escrow or holdback terms
comparable to those imposed upon the Company’s stockholders under the Change in Control, or calculating and paying the present
value of payments that would otherwise be subject to escrow or holdback terms.


 






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(4)       Termination
After a Change in Control. If and to the extent that Awards are continued, assumed or replaced under the circumstances described
in Section 12(b)(1), and if within one year after the Change in Control a Participant experiences an involuntary termination of Service
for reasons other than Cause, then (i) outstanding Option and SAR Awards issued to the Participant that are not yet fully exercisable
shall immediately become exercisable in full and shall remain exercisable for one year following the Participant’s termination of
Service, and (ii) any Restricted Stock or Stock Unit Awards that are not yet fully vested shall immediately vest in full.


 


13.       Plan
Participation and Service Provider Status. Status as a Service Provider shall not be construed as a commitment that any Award
will be made under the Plan to that Service Provider or to eligible Service Providers generally. Nothing in the Plan or in any Agreement
or related documents shall confer upon any Service Provider or Participant any right to continued Service with the Company or any Affiliate,
nor shall it interfere with or limit in any way any right of the Company or any Affiliate to terminate the person’s Service at any
time with or without Cause or change such person’s compensation, other benefits, job responsibilities or title.


 


14.       Tax
Withholding. The Company or any Affiliate, as applicable, shall have the right to (i) withhold from any cash payment under the
Plan or any other compensation owed to a Participant an amount sufficient to cover any required withholding taxes related to the grant,
vesting, exercise or settlement of an Award, and (ii) require a Participant or other person receiving Shares under the Plan to pay a cash
amount sufficient to cover any required withholding taxes before actual receipt of those Shares. In lieu of all or any part of a cash
payment from a person receiving Shares under the Plan, the Committee may permit the Participant to satisfy all or any part of the
required tax withholding obligations (but not to exceed the maximum individual statutory tax rate in each applicable jurisdiction) by
authorizing the Company to withhold a number of the Shares that would otherwise be delivered to the Participant pursuant to the Award,
or by transferring to the Company Shares already owned by the Participant, with the Shares so withheld or delivered having a Fair Market
Value on the date the taxes are required to be withheld equal to the amount of taxes to be withheld.


 


15.       Effective
Date, Duration, Amendment and Termination of the Plan.


 


(a)       Effective
Date. The Plan shall become effective on the date it is approved by the requisite vote of the Company’s Board.


 


(b)       Duration
of the Plan. The Plan shall remain in effect until all Shares subject to it shall be distributed, all Awards have expired or terminated,
the Plan is terminated pursuant to Section 15(c), or the tenth anniversary of the effective date of the Plan, whichever occurs first (the
 “Termination Date”). Awards made before the Termination Date shall continue to be outstanding in accordance with their
terms and the terms of the Plan unless otherwise provided in the applicable Agreements.



 


(c)       Amendment
and Termination of the Plan. The Board may at any time terminate, suspend or amend the Plan. The Company shall submit any amendment
of the Plan to its stockholders for approval only to the extent required by applicable laws or regulations or the rules of any securities
exchange on which the Shares may then be listed. No termination, suspension, or amendment of the Plan may materially impair the rights
of any Participant under a previously granted Award without the Participant’s consent, unless such action is necessary to comply
with applicable law or stock exchange rules.


 


(d)       Amendment
of Awards. The Committee may unilaterally amend the terms of any Agreement previously granted, except that no such amendment may
materially impair the rights of any Participant under the applicable Award without the Participant's consent, unless such amendment
is necessary to comply with applicable law or stock exchange rules.


 






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16.       Restrictions
on Shares. At the discretion of the Committee, the Company may reserve to itself and its successors and assignees in an Agreement
or otherwise (i) a right of first refusal to purchase all Shares that a Participant (or a subsequent transferee) may propose to transfer
to a third party, (ii) a right to repurchase a portion of or all Shares held by a Participant upon the Participant’s termination
of Service with the Company and its Affiliates for any reason within a specified time (but not to exceed 90 days of the later of termination
or exercise of the Award, if required by applicable laws), (iii) the right to require the Participant from time to time to execute and
deliver stockholder, voting or similar agreements to which holders of a majority of the Stock are parties,  (iv) the right of the
Company to require the Participant from time to time to execute and deliver underwriter lock-up agreements, and (v) the right to repurchase
upon a Participant's termination of Service any or all unvested Shares acquired in accordance with Section 7(c) as the result of the exercise
of an unvested Option. The price to be paid upon any purchase or repurchase of Shares pursuant to clause (i) or (ii) above shall be determined
by the Committee, and the per Share price to be paid upon repurchase of Shares pursuant to clause (v) shall be the lesser of (A) the exercise
price per Share paid by the Participant or (B) the Fair Market Value per Share at the time of the Participant's termination of Service.
Any reservation of rights pursuant to clauses (i) through (iii) above shall be effective only during any period prior to registration
of the Stock pursuant to Section 12 of the Securities Exchange Act of 1934.


 


17.       Other
Provisions.


 


(a)       Unfunded
Plan. The Plan shall be unfunded and the Company shall not be required to segregate any assets that may at any time be represented
by Awards under the Plan. Neither the Company, its Affiliates, the Committee, nor the Board shall be deemed to be a trustee of any amounts
to be paid under the Plan nor shall anything contained in the Plan or any action taken pursuant to its provisions create or be construed
to create a fiduciary relationship between the Company and/or its Affiliates, and a Participant. To the extent any person has or acquires
a right to receive a payment in connection with an Award under the Plan, this right shall be no greater than the right of an unsecured
general creditor of the Company.


 


(b)       Limits
of Liability. Except as may be required by law, neither the Company nor any member of the Board or of the Committee, nor any other
person participating (including participation pursuant to a delegation of authority under Section 3(c) of the Plan) in any determination
of any question under the Plan, or in the interpretation, administration or application of the Plan, shall have any liability to any party
for any action taken, or not taken, in good faith under the Plan.


 


(c)       Compliance
with Applicable Legal Requirements. No Shares distributable pursuant to the Plan shall be issued and delivered unless the issuance
of the Shares complies with all applicable legal requirements, including compliance with the provisions of applicable state and federal
securities laws, and the requirements of any exchanges on which the Company’s Shares may, at the time, be listed. During any period
in which the offering and issuance of Shares under the Plan is not registered under federal or state securities laws, Participants shall
acknowledge that they are acquiring Shares under the Plan for investment purposes and not for resale, and that Shares may not be transferred
except pursuant to an effective registration statement under, or an exemption from the registration requirements of, such securities laws. 
Any stock certificate or book-entry evidencing Shares issued under the Plan that are subject to securities law restrictions shall
bear or be accompanied by an appropriate restrictive legend or stop transfer instruction.


 


(d)       Other
Benefit and Compensation Programs. Payments and other benefits received by a Participant under an Award made pursuant to the
Plan shall not be deemed a part of a Participant’s regular, recurring compensation for purposes of the termination, indemnity
or severance pay laws of any country and shall not be included in, nor have any effect on, the determination of benefits under any
other employee benefit plan, contract or similar arrangement provided by the Company or an Affiliate unless expressly so provided by
such other plan, contract or arrangement, or unless the Committee expressly determines that an Award or portion of an Award should
be included to accurately reflect competitive compensation practices or to recognize that an Award has been made in lieu of a
portion of competitive cash compensation.


 






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(e)       Governing
Law. To the extent that federal laws do not otherwise control, the Plan and all determinations made and actions taken pursuant to
the Plan shall be governed by the laws of the State of Minnesota without regard to its conflicts-of-law principles and shall be construed
accordingly.


 


(f)       Severability.
If any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining
parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been included.


 


(g)       Code
Section 409A.


 


(1)               
It is intended that (i) all Awards of Options, SARs and Restricted Stock under the Plan will not provide for the deferral of compensation
within the meaning of Code Section 409A and thereby be exempt from Code Section 409A, and (ii) all other Awards under the Plan will either
not provide for the deferral of compensation within the meaning of Code Section 409A, or will comply with the requirements of Code Section
409A, and Awards shall be structured and the Plan administered and interpreted in accordance with this intent. The Plan and any Agreement
may be unilaterally amended by the Company in any manner deemed necessary or advisable by the Committee or Board in order to maintain
such exemption from or compliance with Code Section 409A, and any such amendment shall conclusively be presumed to be necessary to comply
with applicable law. Notwithstanding anything to the contrary in the Plan or any Agreement, with respect to any Award that constitutes
a deferral of compensation subject to Code Section 409A, if any amount is payable under such Award upon a termination of Service, a termination
of Service will be deemed to have occurred only at such time as the Participant has experienced a “separation from service”
as such term is defined for purposes of Code Section 409A.


 


(2)               
None of the Company, the Board, the Committee nor any other person involved with the administration of this Plan shall (i) in any
way be responsible for ensuring the exemption of any Award from, or compliance by any Award with, the requirements of Code Section 409A,
(ii) have any obligation to design or administer the Plan or Awards granted thereunder in a manner that minimizes a Participant’s
tax liabilities, including the avoidance of any additional tax liabilities under Code Section 409A, and (iii) shall have any liability
to any Participant for any such tax liabilities.


 


(h)       Forfeiture
and Compensation Recovery. The Committee may specify in an Agreement that the Participant’s rights, payments, and benefits with
respect to an Award will be subject to reduction, cancellation, forfeiture or recovery by the Company upon the occurrence of certain specified
events, in addition to any otherwise applicable vesting or performance conditions of an Award. Such events may include termination of
Service for Cause; violation of any material Company or Affiliate policy; breach of noncompetition, non-solicitation or confidentiality
provisions that apply to the Participant; a determination that the payment of the Award was based on an incorrect determination that financial
or other criteria were met or other conduct by the Participant that is detrimental to the business or reputation of the Company or its
Affiliates.




 






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