EXHIBIT 10.2


 


WEST MARINE, INC.


AMENDED AND RESTATED ASSOCIATES STOCK
BUYING PLAN


 


ADOPTED BY THE BOARD OF DIRECTORS: APRIL
12, 2017


 


APPROVED BY THE STOCKHOLDERS: JUNE 1, 2017


 




     


     


    

 


WEST MARINE, INC.


AMENDED AND RESTATED ASSOCIATES STOCK BUYING
PLAN


 


SECTION
1

PURPOSE


 


West Marine, Inc. established the West
Marine, Inc. Associates Stock Buying Plan (as amended through September 23, 2015, the "Prior Plan"), on November 1, 1994,
to provide Eligible Associates and its participating Subsidiaries with the opportunity to purchase Common Stock at a discount through
payroll deductions.


 


Upon the recommendation of the Committee,
the Associates Stock Buying Plan was amended and restated in its entirety and adopted by the Board on March 23, 2017, subject to
stockholder approval (the “Plan”). The Plan replaces the Prior Plan. Except as otherwise provided by the Committee,
the terms and provisions of the Plan as set forth herein shall apply to enrollment and/or purchases made after such date. For the
terms of any purchases made prior to such date, please see the version of the Prior Plan document in effect for such period.


 


The Plan is intended to qualify as an employee
stock purchase plan under Section 423 of the IRC and the Plan shall be interpreted in a manner
that is consistent with that intent. The Plan is not intended to be an employee benefit plan under the Employee Retirement
Income Security Act of 1974, and therefore is not required to comply with that Act.


 


This Plan is intended to encourage Eligible
Associates to remain in the employ of the Company (or any Subsidiary which may be designated by the Committee as a “Subsidiary”)
and to provide them with an additional incentive to advance the best interests of the Company.


 


SECTION
2

DEFINITIONS


 


2.1          "1934
Act" means the Securities Exchange Act of 1934, as amended. Reference to a specific Section of the 1934 Act or regulation
thereunder shall include such Section or regulation, any valid regulation promulgated under such Section, and any comparable provision
of any future legislation or regulation amending, supplementing or superseding such Section or regulation.


 


2.2          
“Account” means the account established for each Participant into which the amount of each Participant’s payroll
deductions shall be credited for the purchase of Common Stock pursuant to the Plan. No interest will be paid or allowed on amounts
credited to a Participant’s Account. All payroll deductions received by the Company under the Plan are general corporate
assets of the Company and may be used by the Company for any corporate purpose. The Company is not obligated to segregate such
payroll deductions.


 


2.3          
“Adjustment Event” means any “equity restructuring,” as defined under the Financial Accounting Standards
Board Accounting Standards Codification Topic 718, Stock Compensation (or any successor thereto) including but not limited to,
any large or extraordinary dividend payable in capital stock, stock split, share combination, large or extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination, exchange of shares or other similar event
affecting the Common Stock.


 


2.4          "Board"
means the Board of Directors of the Company.


 


2.5          “Change
in Control” means, and shall be deemed to have occurred upon the occurrence of, any one of the following events:


 


(a) The acquisition in
one or more transactions, other than from the Company, by any individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act), other than the Company, a Subsidiary or any employee benefit plan (or related trust) sponsored
or maintained by the Company or a Subsidiary, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of a number of the Company’s Voting Securities in excess of 50% of the Company’s Voting Securities;


 


(b) Any election has
occurred of persons to the Board that causes two-thirds of the Board to consist of persons other than: (i) persons who were members
of the Board on the Effective Date of the Plan; and (ii) persons who were nominated for election as members of the Board at a time
when two-thirds of the Board consisted of persons who were members of the Board on the Effective Date of the Plan, provided, however,
that any person nominated for election by: (x) a Board at least two-thirds of whom constituted persons described in clauses (i)
and/or (ii); or (y) by persons who were themselves nominated by such Board, shall for this purpose be deemed to have been nominated
by a Board composed of persons described in clause (i);


 




     


     


    

 


(c) The consummation
(i.e. closing) of a reorganization, merger or consolidation involving the Company, unless, following such reorganization, merger
or consolidation, all or substantially all of the persons who were the respective beneficial owners of the Outstanding Common Stock
and the Company’s Voting Securities immediately prior to such reorganization, merger or consolidation, following such reorganization,
merger or consolidation beneficially own, directly or indirectly, more than 75% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding Voting Securities entitled to vote generally in the election
of directors of the entity resulting from such reorganization, merger or consolidation in substantially the same proportion as
their ownership of the Outstanding Common Stock and the Company’s Voting Securities immediately prior to such reorganization,
merger or consolidation, as the case may be;


 


(d) The consummation
(i.e. closing) of a sale or other disposition of all or substantially all the assets of the Company, unless, following such sale
or disposition, all or substantially all of the persons who were the respective beneficial owners of the Outstanding Common Stock
and the Company’s Voting Securities immediately prior to such sale or disposition, following such sale or disposition beneficially
own, directly or indirectly, more than 75% of, respectively, the then outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled to vote generally in the election of directors or trustees, as the case
may be, of the entity acquiring such assets in substantially the same proportion as their ownership of the Outstanding Common Stock
and the Company’s Voting Securities immediately prior to such sale or disposition, as the case may be; or


 


(e) a complete liquidation
or dissolution of the Company.


 


2.6          "Committee"
means the Compensation and Leadership Development Committee of the Board (or any successor), or such other committee designated
by the Board to oversee administration of the Plan.


 


2.7          "Common
Stock" means the common stock of the Company, par value $0.0001 per share.


 


2.8          "Company"
means West Marine, Inc., a Delaware corporation.


 


2.9          "Compensation"
means a Participant's base compensation, plus pay for overtime, holiday, and time off (such as sick and vacation pay), but excluding
incentive pay (such as bonuses, commissions or stock compensation), fringe benefits, deferred compensation payments or payments
connected with or after the termination of employment, calculated before reduction for elective deferrals and deductions.


 


2.10          "Disability"
means a permanent and total disability within the meaning of IRC Section 22(e)(3).


 


2.11          "Eligible
Associate" means each Employee of an Employer who has been employed for such period as the Committee may determine (up to
two years), except any Employee who, immediately after the grant of an option under the Plan, would own stock and/or hold outstanding
options to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock
of the Company or of any Subsidiary of the Company (including stock attributed to such Employee pursuant to Section 424(d) of the
IRC).


 


2.12          "Employee"
means an individual who is a common-law employee of any Employer, whether such employee is so employed at the time the Plan is
adopted or becomes so employed subsequent to the adoption of the Plan.


 


2.13          "Employer"
or "Employers" means any one or all of the Company and those Subsidiaries which, with the consent of the Board, have
adopted this Plan.


 


2.14          "Enrollment
Date" means each May 1 and November 1, and/or such other dates determined by the Committee from time to time.


 


2.15          “Enrollment
Form” means a paper or electronic form provided by an Employer pursuant to which an Eligible Associate elects to enroll in
the Plan.


 


2.16          "Grant
Date" means any date on which a Participant is granted an option under the Plan.


 


2.17          “Hardship”
means the Committee’s determination that a Participant has suffered or will suffer a severe financial hardship as a result
of any of the following:


 




     


     


    

 


2.17.1          Expenses
for medical care described in Section 213(d) of the IRC previously incurred by Participant or Participant’s spouse or dependent,
or necessary for Participant or Participant’s spouse or dependent to obtain medical care;


 


2.17.2          Costs
directly related to the purchase of Participant’s principal residence (excluding mortgage payments);


 


2.17.3          Tuition,
related educational fees, and room and board expenses for the next twelve (12) months of post-secondary education for Participant
or Participant’s spouse or dependent; or


 


2.17.4          Amounts
necessary to prevent Participant’s eviction from Participant’s principal residence or foreclosure on the mortgage of
Participant’s principal residence.


 


2.17.5          Payments
for burial or funeral expenses for the Participant’s deceased parent, spouse, children or dependents (as defined in IRC Section
152 without regard to IRC Section 152(d)(1)(B));


 


2.17.6          Expenses
for the repair of damage to the Participant’s principal residence that would qualify for the casualty deduction under IRC
Section 165 (determined without regard to whether the loss exceeds 10% of adjusted gross income); or


 


2.17.7          Any
other event as the Committee determines will give rise to an immediate and heavy financial need.


 


2.17.8          "Holding
Period" shall mean that period of time beginning on the Purchase Date on which Shares are purchased by Participants under
the Plan and ending twelve (12) calendar months thereafter.


 


2.17.9          "IRC"
means the Internal Revenue Code of 1986, as amended. Reference to a specific Section of the IRC or regulation thereunder shall
include such Section or regulation, any valid regulation promulgated under such Section, and any comparable provision of any future
legislation or regulation amending, supplementing or superseding such Section or regulation.


 


2.17.10          “Participant"
means an Eligible Associate who (a) has become a Participant pursuant to Section 4.1 and (b) has not ceased to be a Participant
pursuant to Section 8 or Section 9.


 


2.17.11          "Plan"
means the Amended and Restated West Marine, Inc. Associates Stock Buying Plan, as set forth in this instrument and as hereafter
amended or restated from time to time.


 


2.17.12          "Purchase
Date" means the last business day of April or October, as applicable, next following the Grant Date, (or such other specific
business days as may be established by the Committee from time to time) prior to an Enrollment Date for all options to be granted
on such Enrollment Date.


 


2.17.13          "Subsidiary"
means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if, at the time
of granting options under the Plan, each of the corporations other than the last corporation in the unbroken chain owns stock possessing
50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.


 


SECTION
3

SHARES SUBJECT TO THE PLAN


 


3.1          Number
Available. As of March 23, 2017, a total of 945,890
shares of Common Stock are available for issuance pursuant to the Plan, which includes 195,890
shares of Common Stock that were previously reserved for issuance under the Prior Plan. Shares of Common Stock sold under
the Plan may be newly issued shares or treasury shares.


 


3.2          Adjustments.
In the event of any Adjustment Event, the Board shall make such adjustment, if any, as it deems appropriate in the number, kind
and purchase price of the shares available for purchase under the Plan and in the maximum number of shares subject to any option
under the Plan.


 




     


     


    

 


SECTION
4

ENROLLMENT


 


4.1          Participation.
Each Eligible Associate may elect to become a Participant by enrolling or re-enrolling in the Plan effective as of any Enrollment
Date. In order to enroll, an Eligible Associate must complete, sign (which includes electronic signature or acknowledgement) and
submit to the Company an Enrollment Form in such form and format as may be specified by the Committee from time to time. Any Enrollment
Form received by the Company no later than sixteen (16) calendar days before an Enrollment Date shall be effective on that Enrollment
Date, provided that the Committee, in its discretion, may (on a uniform and nondiscriminatory basis) specify an earlier or later
deadline for the submission of Enrollment Forms. Any Participant whose option expires and who has not withdrawn from the Plan automatically
will be re-enrolled in the Plan on the Enrollment Date immediately following the Purchase Date on which his or her option expired.


 


4.2          Payroll
Withholding. On his or her Enrollment Form, each Participant must elect to make Plan contributions via payroll withholding
from his or her Compensation at a rate equal to any whole percentage from 1% to such maximum percentage (not to exceed 10%) that
the Committee may establish from time to time for all options to be granted on any Enrollment Date. A Participant may elect to
increase or decrease his or her rate of payroll withholding (effective as of the next Enrollment Date) by submitting a new Enrollment
Form in accordance with such procedures as may be established by the Committee from time to time. In order to be effective, the
Enrollment Form must be received by the Company no later than sixteen (16) calendar days before the Enrollment Date elected for
the change, provided that the Committee, in its discretion, may (on a uniform and nondiscriminatory basis) specify an earlier or
later deadline for the submission of Enrollment Forms. All Enrollment Forms received by the Company shall take effect on the next
subsequent Enrollment Date. Any Participant who is automatically re-enrolled in the Plan will be deemed to have elected to continue
his or her contributions at the percentage last elected by the Participant.


 


SECTION
5

OPTIONS TO PURCHASE COMMON STOCK


 


5.1          Grant
of Option. On each Enrollment Date on which the Participant enrolls or re-enrolls in the Plan, he or she shall be granted an
option to purchase, at the price determined under Section 6.1, that number of whole shares of Common Stock that can be purchased
or issued by the Company based upon that price with the amount held in the Participant’s Account.


 


5.2          Duration
of Option. Each option granted under the Plan shall expire on the earliest to occur of (a) the date which is 27 months from
the Grant Date, or the expiration of any shorter option period established by the Committee prior to an Enrollment Date, (b) the
completion of the purchase of shares of Common Stock on the applicable Purchase Date, or (c) the date on which the Participant
ceases to be such for any reason.


 


5.3          Number
of Shares Subject to Option. The number of shares of Common Stock available for purchase by each Participant under the option
will be established by the Committee from time to time prior to an Enrollment Date for all options to be granted on such Enrollment
Date. Notwithstanding the preceding sentence, an option (taken together with all other options then outstanding under this Plan
and under all other similar employee stock purchase plans of the Employers) shall not give the Participant the right to purchase
shares of Common Stock at a rate which accrues in excess of $25,000 of fair market value at the applicable Grant Dates of such
shares (less the fair market value at the applicable Grant Dates of any shares previously purchased during such year under options
which have expired or terminated) in any calendar year during which such Participant is enrolled in the Plan at any time.


 


5.4          Other
Terms and Conditions. Each option shall be subject to the following additional terms and conditions: (a) payment for shares
of Common Stock purchased under the option shall be made only through payroll withholding under Section 4.2 held in Participant’s
Account; (b) purchase of shares upon exercise of the option will be accomplished only in installments in accordance with Section
6.1; (c) the price per share under the option will be determined as provided in Section 6.1; (d) the option in all respects shall
be subject to such terms and conditions (applied on a uniform and nondiscriminatory basis), as the Committee shall determine from
time to time in its discretion.


 


SECTION
6

PURCHASE OF SHARES


 


6.1          Exercise
of Option. On each Purchase Date, the funds then credited to each Participant's Account shall be used to purchase shares of
Common Stock. The price of the shares purchased under any option shall be 85% of the lower of: (a) the closing price of Common
Stock on the Grant Date for such option on the primary national securities exchange (as defined under the 1934 Act) on which the
Common Stock is listed for trading; or (b) the closing price of Common Stock on that Purchase Date on the primary national securities
exchange (as defined under the 1934 Act) on which the Common Stock is listed for trading.


 




     


     


    

 


6.2          Crediting
of Shares. Shares of Common Stock purchased on any Purchase Date shall be delivered to a broker designated by the Committee
for the benefit of the Participant. As determined by the Committee from time to time, such shares shall be delivered as physical
certificates or by means of a book entry system. Although the Participant may direct the broker to sell such shares at any time
(subject to applicable securities laws and Section 7 below), the shares may not be transferred to another broker or to any other
person (including the Participant) until 24 months after the Grant Date of the option with which the shares were purchased. Upon
expiration of the 24-month period, a Participant may transfer such shares to an account at another brokerage firm of the Participant's
choosing or request that a certificate that represents the shares be issued and delivered to the Participant.


 


6.3          Exhaustion
of Shares. If at any time the shares of Common Stock available under the Plan are over-enrolled, enrollments shall be reduced
proportionately to eliminate the over-enrollment. Any funds that cannot be applied to the purchase of shares due to over-enrollment
shall be refunded to the Participants.


 


SECTION
7

HOLDING PERIOD


 


7.1          Dispositions
Subject to Holding Period. Subject to Section 7.2 below, a Participant may undertake a disposition, as that term is defined
in Section 424(c) of the IRC (which generally includes any sale, exchange, gift or transfer of legal title), of shares of Common
Stock in the Participant's brokerage account (as contemplated by Section 6.2) which were acquired on or after April 30, 2010, only
after the expiration of the Holding Period.


 


7.2          Distributions
Exempted from the Holding Period. Notwithstanding the foregoing, a Participant (or his or her beneficiary, if applicable) may
undertake a disposition of any shares of Common Stock in the brokerage account prior to the expiration of the Holding Period upon
the occurrence of any of the following events, in which case such disposition shall be made as soon as administratively practical
following the effective date thereof:


 


7.2.1                    Death;


 


7.2.2                    Disability;


 


7.2.3                    The
cessation of Participant’s status as an Eligible Associate (for example, because of his or her termination of employment
from all Employers for any reason);


 


7.2.4                    Hardship
— provided that Participant certifies and agrees that: (i) the number of shares or other amounts subject to such disposition
shall be limited to the amount reasonably necessary to meet the Participant's needs resulting from the Hardship plus amounts necessary
to pay taxes or penalties reasonably anticipated as a result of the disposition; and (ii) Participant has first obtained all distributions
(other than hardship distributions from the Company’s 401(k) plan) and nontaxable loans currently available to Participant
under the Company’s other employee benefit plans or programs; or


 


7.2.5                    Change
in Control.


 


SECTION
8

withdrawal


 


8.1          Withdrawal.
A Participant may withdraw from the Plan by submitting a completed written notice of withdrawal in the form and manner provided
by the Committee. A withdrawal will be effective only if it is received by the Company at least sixteen (16) calendar days before
the proposed date of withdrawal, provided that the Committee, in its discretion, may specify (on a uniform and nondiscriminatory
basis) an earlier or later deadline for the submission of such written notice of withdrawal. When a withdrawal becomes effective,
the Participant's payroll contributions shall cease and all amounts then credited to the Participant's Account shall be distributed
to him or her (without interest) as soon as reasonably practicable. Notwithstanding any contrary provision of the Plan, a Participant
who has withdrawn from the Plan pursuant to this Section 8 may not re-enroll in the Plan until the next Enrollment Date after the
date of his or her withdrawal. A Participant’s withdrawal from the Plan shall not affect any shares held in the brokerage
account for the benefit of the Participant, which shares of Common Stock shall remain subject to the Holding Period.


 




     


     


    

 


SECTION
9

CESSATION OF PARTICIPATION


 


9.1          Termination
of Status as an Eligible Associate. A Participant shall cease to be a Participant immediately upon the cessation of his or
her status as an Eligible Associate (for example, because of his or her termination of employment from all Employers for any reason).
As soon as practicable after such cessation, the Participant's payroll contributions shall cease and all amounts then credited
to the Participant's account shall be distributed to him or her (without interest).


 


9.2          Leave
of Absence. Unless a Participant voluntarily withdraws from the Plan, shares of Common Stock will be purchased for that Participant's
Account on the Purchase Date next following commencement of a leave of absence by such Participant. However, the Participant will
cease to be a Participant immediately after such purchase of shares, provided that if and when he or she returns from the leave,
he or she may re-enroll under Section 4.1, if then eligible.


 


SECTION
10

DESIGNATION OF BENEFICIARY


 


10.1          Designation.
If permitted by the Committee, each Participant may, pursuant to such procedures as the Committee may specify, designate one or
more beneficiaries to receive shares of Common Stock purchased under the Plan or any amounts credited to the Participant's Account
in the event of his or her death subsequent to a Purchase Date but prior to delivery of such shares or cash.


 


10.2          Changes.
A Participant may designate different beneficiaries (or may revoke a prior beneficiary designation) at any time by delivering a
new designation (or revocation of a prior designation) in like manner. Any designation or revocation shall be effective only if
it is received by the Committee. However, when so received, the designation or revocation shall be effective as of the date the
notice is executed (whether or not the Participant still is living), but without prejudice to the Committee on account of any payment
made before the change is recorded. The last effective designation received by the Committee shall supersede all prior designations
and the Committee may rely upon the most recent beneficiary designation it has on file as being the appropriate beneficiary(ies).


 


10.3          Failed
Designations. If a Participant dies without having effectively designated a beneficiary, or if no beneficiary (primary or secondary)
survives the Participant, any cash in the Participant's Account or shares of Common Stock shall be delivered to the executor or
administrator of the Participant’s estate, or if no such executor or administrator has been appointed to the knowledge of
the Committee, in its sole discretion, may deliver such shares or cash to the spouse or any one or more dependents or relatives
of the Participant, or if no spouse, dependent or relative is known to the Committee, then to such other person as the Committee
may designate.


 


SECTION
11

ADMINISTRATION


 


11.1          Plan
Administration. The Plan shall be administered by the Committee. Any power of the Committee may also be exercised by the Board,
except to the extent that the grant or exercise of such authority would cause any purchase or option to purchase Common Stock under
the Plan to become subject to (or lose an exemption under) the short-swing profit recovery provisions of Section 16 of the
1934 Act. The Committee shall have the authority to control and manage the operation and administration of the Plan. The Board
and/or Committee may delegate all matters relating to the administration of the Plan to one or more of the Company’s officers
as the Board and/or Committee so determines.


 


11.2          Actions
by Committee. Each decision of a majority of the members of the Committee then in office shall constitute the final and binding
act of the Committee. The Committee may act with or without a meeting being called or held and shall keep minutes of all meetings
held and a record of all actions taken by written consent.


 


11.3          Powers
of Committee. The Committee shall, except as limited by applicable law or by the Certificate of Incorporation or Bylaws of
the Company, and subject to the provisions of this Plan, have all powers and discretion necessary or appropriate to supervise the
administration of the Plan and to control its operation in accordance with its terms, including, but not by way of limitation,
the powers and authority conferred on the Committee elsewhere in this Plan in addition to the following discretionary powers:


 


11.3.1          To
interpret and determine the meaning and validity of the provisions of the Plan and the options and to determine any question arising
under, or in connection with, the administration, operation or validity of the Plan and the options;


 




     


     


    

 


11.3.2          To
determine any and all considerations affecting the eligibility of any Employee to become a Participant or remain a Participant
in the Plan;


 


11.3.3          To
cause an Account or Accounts to be maintained for each Participant;


 


11.3.4          To
determine the time or times when, and the number of shares of Common Stock for which, options shall be granted;


 


11.3.5          To
establish and revise an accounting method or formula for the Plan;


 


11.3.6          To
determine the manner and form in which shares are to be delivered to the designated broker;


 


11.3.7          To
determine the status and rights of Participants and their beneficiaries or estates;


 


11.3.8          To
employ such brokers, counsel, agents and advisers, and to obtain such broker, legal, clerical and other services, as it may deem
necessary or appropriate in carrying out the provisions of the Plan;


 


11.3.9          To
establish, from time to time, rules for the performance of its powers and duties and for the administration of the Plan;


 


11.3.10          To
adopt such procedures and subplans as are necessary or appropriate to permit participation in the Plan by Employees who are foreign
nationals or employed outside of the United States;


 


11.3.11          To
delegate to any one or more of its members or to any other person, severally or jointly, the authority to perform for and on behalf
of the Committee one or more of the functions of the Committee under the Plan;


 


11.3.12          To
determine a waiver of the Holding Period due to a Participant’s Hardship;


 


11.3.13          To
determine whether a Participant has a Disability; and/or


 


11.3.14          To
perform or cause to be performed such further acts as it may deem necessary, appropriate or convenient for the administration and/or
operation of the Plan.


 


11.4          Decisions
of Committee. All actions taken and/or interpretations and decisions made by the Committee in good faith in the exercise of
authority conferred upon it by this Plan shall be conclusive and binding on all persons, including all Participants and their beneficiaries,
and shall be given the maximum possible deference allowed by applicable law.


 


11.5          Administrative
Expenses. All expenses incurred in the operation and administration of the Plan by the Committee, or otherwise, including legal
fees and expenses, shall be paid and borne by the Employers, except any stamp duties or transfer taxes applicable to the purchase
of shares of Common Stock may be charged to the Account of each Participant. Any brokerage fees for the purchase of shares by a
Participant shall be paid by the Company, but brokerage fees for the resale of shares by a Participant shall be borne by the Participant.


 


11.6          Eligibility
to Participate. No member of the Committee who is also an Employee of an Employer shall be excluded from participating in the
Plan if otherwise eligible, but he or she shall not be entitled, as a member of the Committee, to act or pass upon any matters
pertaining specifically to his or her own account under the Plan.


 


11.7          Limitation
of Liability. No Employee of the Company nor any member of the Committee or the Board shall be subject to any liability with
respect to her or his duties under the Plan, unless the person acts fraudulently or in bad faith.  


 


11.8          Indemnification.
To the extent permitted by applicable law, each of the Employers shall, and hereby does, indemnify and hold harmless the members
of the Committee, the Board, and any Employee of the Employers with duties under the Plan who was or is a party, or is threatened
to be made a party, to any threatened, pending or completed proceeding, wither civil, criminal, administrative, or investigative,
from and against any and all losses, claims, damages or liabilities (including attorneys' fees and amounts paid, with the approval
of the Board, in settlement of any claim) arising out of or resulting from the implementation of a duty, act or decision with respect
to the Plan, so long as such duty, act or decision does not involve gross negligence or willful misconduct on the part of any such
individual.


 




     


     


    

 


11.9          Reliance
on Experts. In making any determination or in taking or not taking any action under the Plan, the Committee or the Board, as
the case may be, may obtain and may rely upon the advice of experts, including professional advisors to the Company. No director,
officer or agent of the Employers shall be liable for any such action or determination taken or made or omitted in good faith.


 


SECTION
12

AMENDMENT, TERMINATION, DURATION AND CHANGE IN CONTROL


 


12.1          Amendment,
Suspension or Termination. The Board, in its sole discretion, may amend, suspend or terminate the Plan, or any part thereof,
at any time and for any reason. If the Plan is terminated, the Board may elect to terminate all outstanding options either immediately
or upon completion of the purchase of shares of Common Stock on the next Purchase Date, or may elect to permit options to expire
in accordance with their terms (and participation to continue through such expiration dates). If the options are terminated prior
to expiration, all amounts then credited to Participants' accounts that have not been used to purchase shares shall be returned
to the Participants (without interest) as soon as administratively practicable. Notwithstanding the foregoing, no such amendment
or termination shall affect rights previously granted without the Participant’s consent. In addition, no amendment may be
made without the prior approval of the Company’s stockholders and if such amendment would:


 


12.1.1          Increase
the number of shares of the Company Common Stock that may be issued under the Plan;


 


12.1.2          Materially
modify the requirements as to eligibility for participation in the Plan; or


 


12.1.3          Materially
increase the benefits which accrue to Participants under the Plan.


 


12.2          Duration
of the Plan. The Plan, as amended and restated, shall commence on March 23, 2017, subject to stockholder approval, and subject
to Section 12.1 (regarding the Board's right to amend or terminate the Plan), shall remain in effect thereafter.


 


12.3          In
the event of a Change in Control. The Board may, in its sole discretion and without limiting or otherwise modifying the Board’s
powers under Section 12.1, (a) permit outstanding options under the Plan to remain outstanding to the next Purchase Date or to
permit options to expire in accordance with their terms, (b) approve conversion of options under the Plan into options to purchase
securities of the successor or surviving entity in connection with a Change in Control, (c) establish a new Purchase Date for outstanding
options under the Plan that is prior to a Change in Control, or (d) terminate outstanding options under the Plan and return amounts
then credited to Participants’ accounts to Participants.


 


SECTION
13

GENERAL PROVISIONS


 


13.1          Participation
by Subsidiaries. One or more Subsidiaries of the Company may become participating Employers by adopting the Plan and obtaining
approval for such adoption from the Board. By adopting the Plan, a Subsidiary shall be deemed to agree to all of its terms, including
(but not limited to) the provisions granting exclusive authority (a) to the Board to amend the Plan, and (b) to the Committee to
administer and interpret the Plan. Any Subsidiary may terminate its participation in the Plan at any time. The liabilities incurred
under the Plan to the Participants employed by each Employer shall be solely the liabilities of that Employer, and no other Employer
shall be liable for benefits accrued by a Participant during any period when he or she was not employed by such Employer.


 


13.2          Inalienability.
In no event may either a Participant, a former Participant or his or her beneficiary, spouse or estate, whether voluntarily or
involuntarily, sell, transfer, anticipate, assign, hypothecate, pledge, or otherwise dispose of any right or interest under the
Plan; and such rights and interests shall not at any time be subject to the claims of creditors nor be liable to attachment, execution
or other legal process. Any attempt at assignment, transfer, pledge or other disposition shall be without effect. Accordingly,
for example, a Participant's interest in the Plan is not transferable pursuant to a domestic relations order. The preceding shall
not affect the Participant's right to direct the sale or transfer of shares that have been allocated to the Participant's account
at the broker designated by the Participant (subject to the provisions of the Plan).


 


13.3          Severability.
In the event 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.


 




     


     


    

 


13.4          Requirements
of Law. The granting of options and the issuance of shares of Common Stock shall be subject to all applicable laws, rules,
and regulations and to such approvals by any governmental agencies or national securities exchanges (as defined under the 1934
Act) as the Committee may determine are necessary or appropriate.


 


13.5          No
Enlargement of Employment Rights. Neither the establishment or maintenance of the Plan, the granting of any options, the purchase
or any shares of Common Stock, nor any action of any Employer or the Committee, shall be held or construed as a contract or confer
upon any individual any right to be continued as an Employee of the Employer nor, upon dismissal, any right or interest in any
specific assets of the Employers other than as provided in the Plan. Each Employer expressly reserves the right to discharge any
Employee at any time, with or without cause.


 


13.6          Apportionment
of Costs and Duties. All acts required of the Employers under the Plan may be performed by the Company for itself and its Subsidiary,
and the costs of the Plan may be equitably apportioned by the Committee among the Company and the other Employers. Whenever an
Employer is permitted or required under the terms of the Plan to do or perform any act, matter or thing, it shall be done and performed
by any officer or employee of the Employer who is thereunto duly authorized by the board of directors of the Employer.


 


13.7          Construction
and Applicable Law. The Plan is intended to qualify as an "employee stock purchase plan" within the meaning of Section
423 of the IRC. Any provision of the Plan which is inconsistent with Section 423 of the IRC shall without further act or amendment
by the Company or the Board be reformed to comply with the requirements of Section 423. The provisions of the Plan shall be construed,
administered and enforced in accordance with such Section and with the laws of the State of California (excluding California's
conflict of laws provisions).


 


13.8          Captions.
The captions contained in the Plan are inserted only as a matter of convenience and for reference and in no way define, limit,
enlarge or describe the scope or intent of the Plan nor in any way shall affect the construction of any provision of the Plan.


 


13.9          Non-Business
Days. When any act under the Plan is required to be performed on a day that falls on a Saturday, Sunday or U.S. federal holiday,
that act shall be performed on the next succeeding day which is not a Saturday, Sunday or U.S. federal holiday.


 


13.10          Compliance
with Securities Laws. The Plan, the granting of options under the Plan and the offer, issuance and delivery of Common Stock,
are subject to compliance with all applicable federal and state laws, rules and regulations (including, but not limited to, state
and federal securities laws) and to such approvals by any listing, regulatory or governmental authority as may, in the opinion
of counsel for the Company, be necessary or advisable in connection therewith. The person acquiring any securities under the Plan
will, if requested by the Company and as a condition precedent to the exercise of her or his option, provide such assurances and
representations to the Company as the Committee may deem necessary or desirable to assure compliance with all applicable legal
requirements.