Exhibit 10.1


 


 





PRECISION OPTICS CORPORATION, INC.


2011 EQUITY INCENTIVE PLAN


 


Adopted by the Board on October 13, 2011


Amended by the Board on April 16, 2015


 


 


 


 


 


 


 


 






    	 



    	 



    

 


	1.	ESTABLISHMENT AND PURPOSE




 


The Plan was adopted by the Board of Directors
on October 13, 2011 and shall be effective as of the date of the initial offering of Stock to the public pursuant to a registration
statement filed by the Company with the Securities and Exchange Commission (the “Effective Date”). The purpose of the
Plan is to encourage and enable the officers, employees, directors and other key persons (including consultants and prospective
employees) of Precision Optics Corporation, Inc. (the “Company”), upon whose judgment, initiative and efforts
the Company largely depends for the successful conduct of its business, to acquire a proprietary interest in the Company. It is
anticipated that providing such persons with a direct stake in the Company’s welfare will assure a closer identification
of their interests with those of the Company and its stockholders, thereby motivating their efforts on the Company's behalf and
strengthening their desire to remain with the Company.


 


	2.	DEFINITIONS




 


The following terms, when used in the Plan,
will have the meanings and be subject to the provisions set forth below:


 


“Administrator”: The
Board, except that the Board may delegate (i) to one or more of its members such of its duties, powers and responsibilities as
it may determine; (ii) to such Employees or other persons as it determines such ministerial tasks as it deems appropriate; and
(iii) to the compensation committee of the Board, if the Board shall have constituted such a committee, some or all of its powers
with respect to the Plan, in which event, except as the context otherwise clearly requires, all references in this Plan to the
Board shall be deemed to refer to the compensation committee. In the event of any delegation described in clause (i) or (ii) of
the preceding sentence, the term “Administrator” shall include the person or persons so delegated to the extent of
such delegation.


 


“Affiliate”: a “parent”
or “subsidiary” (as each is defined in Section 424 of the Code) of the Company and other entity that the Board or Administrator
designates as an “Affiliate” for purposes of this Plan.


 


“Award”: Any or a combination
of the following:


 


(i) Stock Options.


 


(ii) Restricted Stock.


 


(iii) Unrestricted Stock, or stock
not subject to any restrictions under the terms of the Award.


 


(iv) Stock Units, including Restricted
Stock Units.


 


(v) Performance Awards.


 


(vi) Awards (other than Awards
described in (i) through (v) above) that are convertible into or otherwise based on Stock.


 


“Board”: The Board of
Directors of the Company.


 






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“Code”: The U.S. Internal
Revenue Code of 1986 as from time to time amended and in effect, or any successor statute as from time to time in effect.


 


“Company”: Precision
Optics Corporation, Inc.


 


“Covered Transaction”: Any
of (i) a consolidation, merger, or similar transaction or series of related transactions, including a sale or other disposition
of stock, in which the Company is not the surviving corporation or which results in the acquisition of all or substantially all
of the Company’s then outstanding common stock by a single person or entity or by a group of persons and/or entities acting
in concert, (ii) a sale or transfer of all or substantially all the Company’s assets, or (iii) a dissolution or liquidation
of the Company. Where a Covered Transaction involves a tender offer that is reasonably expected to be followed by a merger
described in clause (i) (as determined by the Administrator), the Covered Transaction shall be deemed to have occurred upon consummation
of the tender offer.


 


“Employee”: Any person
who is employed by the Company or an Affiliate.


 


“Employment”: A Participant’s
employment or other service relationship with the Company and its Affiliates. Employment will be deemed to continue, unless the
Administrator expressly provides otherwise, so long as the Participant is employed by, or otherwise is providing services in a
capacity described in Section 5 to the Company or its Affiliates. If a Participant’s employment or other service relationship
is with an Affiliate and that entity ceases to be an Affiliate, the Participant’s Employment will be deemed to have terminated
when the entity ceases to be an Affiliate unless the Participant transfers Employment to the Company or its remaining Affiliates.


 


“Participant”: A person
who is granted an Award under the Plan.


 


“Performance Award”:
An Award subject to Performance Criteria. The Administrator in its discretion may grant Performance Awards that are intended to
qualify for the performance-based compensation exception under Section 162(m) and Performance Awards that are not intended so to
qualify.


 


“Performance Criteria”:
Specified criteria, other than the mere continuation of Employment or the mere passage of time, the satisfaction of which is a
condition for the grant, exercisability, vesting or full enjoyment of an Award. For purposes of Awards that are intended to qualify
for the performance-based compensation exception under Section 162(m), a Performance Criterion will mean an objectively determinable
measure of performance relating to any or any combination of the following (measured either absolutely or by reference to an index
or indices and determined either on a consolidated basis or, as the context permits, on a divisional, subsidiary, line of business,
project or geographical basis or in combinations thereof): sales; revenues; assets; expenses; earnings before or after deduction
for all or any portion of interest, taxes, depreciation, or amortization, whether or not on a continuing operations or an aggregate
or per share basis; return on equity, investment, capital or assets; one or more operating ratios; borrowing levels, leverage ratios
or credit rating; market share; capital expenditures; cash flow; stock price; stockholder return; sales of particular products
or services; customer acquisition or retention; acquisitions and divestitures (in whole or in part); joint ventures and strategic
alliances; spin-offs, split-ups and the like; reorganizations; or recapitalizations, restructurings, financings (issuance of debt
or equity) or refinancings. A Performance Criterion and any targets with respect thereto determined by the Administrator need not
be based upon an increase, a positive or improved result or avoidance of loss. To the extent consistent with the requirements for
satisfying the performance-based compensation exception under Section 162(m), the Administrator may provide in the case of
any Award intended to qualify for such exception that one or more of the Performance Criteria applicable to such Award will be
adjusted in an objectively determinable manner to reflect events (for example, but without limitation, acquisitions or dispositions)
occurring during the performance period that affect the applicable Performance Criterion or Criteria.


 






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“Plan”: Precision Optics
Corporation, Inc. 2011 Equity Incentive Plan, as from time to time amended and in effect.


 


“Restricted Stock”: Stock
subject to restrictions requiring that it be redelivered or offered for sale to the Company if specified conditions are not satisfied.


 


“Restricted Stock Unit”:
A Stock Unit that is, or as to which the delivery of Stock or cash in lieu of Stock is, subject to the satisfaction of specified
performance or other vesting conditions.


 


“Section 409A”: Section
409A of the Code.


 


“Section 162(m)”: Section
162(m) of the Code.


 


“Stock”: Common Stock
of the Company, par value $ .01 per share.


 


“Stock Option”: An option
entitling the holder to acquire shares of Stock upon payment of the exercise price.


 


“Stock Unit”: An unfunded
and unsecured promise, denominated in shares of Stock, to deliver Stock or cash measured by the value of Stock in the future.


 


	3.	ADMINISTRATION




 


The Administrator has discretionary authority,
subject only to the express provisions of the Plan, to interpret the Plan; determine eligibility for and grant Awards; determine,
modify or waive the terms and conditions of any Award; prescribe forms, rules and procedures; and otherwise do all things necessary
to carry out the purposes of the Plan. In the case of any Award intended to be eligible for the performance-based compensation
exception under Section 162(m), the Administrator will exercise its discretion consistent with qualifying the Award for that exception.
Determinations of the Administrator made under the Plan will be conclusive and will bind all parties.


 


	4.	LIMITS ON AWARDS UNDER THE PLAN




 


(a)Number
of Shares. The number of shares of Stock available for delivery in satisfaction of
Awards under the Plan shall be determined in accordance with this Section 4(a).


 


(1) Subject to Section 7(b), the
maximum aggregate number of shares of Stock that may be delivered in satisfaction of Awards under the Plan shall be 1,825,000.


 






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The number of shares of Stock delivered
in satisfaction of Awards shall be the number of shares of Stock subject to an Award reduced by the number of shares of Stock (a) withheld
by the Company in payment of the exercise price of the Award or, if elected by the Administrator, in satisfaction of tax withholding
requirements with respect to the Award, or (b) awarded under the Plan as Restricted Stock but thereafter forfeited, or (c) made
subject to an Award that is exercised or satisfied, or that terminates or expires, without the delivery of such shares.


 


(2) To the extent consistent with
the requirements of Section 422 and with other applicable legal requirements (including applicable stock exchange requirements),
Stock issued under awards of an acquired company that are converted, replaced, or adjusted in connection with the acquisition shall
not reduce the number of shares available for Awards under the Plan.


 


(b)Type
of Shares. Stock delivered by the Company under the Plan may be authorized but unissued
Stock or previously issued Stock acquired by the Company. No fractional shares of Stock will be delivered under the Plan.


 


	5.	ELIGIBILITY AND PARTICIPATION




 


The Administrator
will select Participants from among those key Employees and directors of, and consultants and advisors to, the Company or its Affiliates
who, in the opinion of the Administrator, are in a position to make a significant contribution to the success of the Company and
its Affiliates. 


 


	6.	RULES APPLICABLE TO AWARDS




 


(a)All
Awards


 


(1) Award Provisions. The
Administrator will determine the terms of all Awards, subject to the limitations provided herein. By accepting (or, under such
rules as the Administrator may prescribe, being deemed to have accepted) an Award, the Participant agrees to the terms of the Award
and the Plan. Notwithstanding any provision of this Plan to the contrary, awards of an acquired company that are converted, replaced
or adjusted in connection with the acquisition may contain terms and conditions that are inconsistent with the terms and conditions
specified herein, as determined by the Administrator.


 


(2) Term of Plan. No Awards
may be made after October 14, 2021 but previously granted Awards may continue beyond that date in accordance with their terms.


 


(3) Transferability. Awards
may be transferred during a Participant’s lifetime only on a gratuitous basis and then only to the extent, if any, determined
and approved by the Administrator.


 


(4) Vesting, etc. The Administrator
may determine the time or times at which an Award will vest or become exercisable and the terms on which an Award requiring exercise
will remain exercisable. Without limiting the foregoing, the Administrator may at any time accelerate the vesting or exercisability
of an Award, regardless of any adverse or potentially adverse tax consequences resulting from such acceleration. Unless the Administrator
expressly provides otherwise, however, the following rules will apply: immediately upon the cessation of the Participant’s
Employment, each Award requiring exercise that is then held by the Participant or by the Participant’s permitted transferees,
if any, will cease to be exercisable and will terminate, and all other Awards that are then held by the Participant or by the Participant’s
permitted transferees, if any, to the extent not already vested will be forfeited, except that:


 






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(A) subject to (B) and (C) below,
all Stock Options held by the Participant or the Participant’s permitted transferees, if any, immediately prior to the cessation
of the Participant’s Employment, to the extent then exercisable, will remain exercisable for the lesser of (i) a period of
three months or (ii) the period ending on the latest date on which such Stock Option could have been exercised without regard to
this Section 6(a)(4), and will thereupon terminate;


 


(B) all Stock Options held by
a Participant or the Participant’s permitted transferees, if any, immediately prior to the Participant’s death, to
the extent then exercisable, will remain exercisable for the lesser of (i) the one year period ending with the first anniversary
of the Participant’s death or (ii) the period ending on the latest date on which such Stock Option could have been exercised
without regard to this Section 6(a)(4), and will thereupon terminate; and


 


(C) all Stock Options held by
a Participant or the Participant’s permitted transferees, if any, immediately prior to the cessation of the Participant’s
Employment will immediately terminate upon such cessation if the Administrator in its sole discretion determines that such cessation
of Employment has resulted for reasons which cast such discredit on the Participant as to justify immediate termination of the
Award.


 


(5) Taxes. The Administrator
will make such provision for the withholding of taxes as it deems necessary. The Administrator may, but need not, hold back shares
of Stock from an Award or permit a Participant to tender previously owned shares of Stock in satisfaction of tax withholding requirements
(but not in excess of the minimum withholding required by law).


 


(6) Dividend Equivalents, etc.
The Administrator may provide for the payment of amounts in lieu of cash dividends or other cash distributions with respect to
Stock subject to an Award. Any entitlement to dividend equivalents or similar entitlements shall be established and administered
consistent either with exemption from, or compliance with, the requirements of Section 409A to the extent applicable.


 


(7) Rights Limited. Nothing
in the Plan will be construed as giving any person the right to continued employment or service with the Company or its Affiliates,
or any rights as a stockholder except as to shares of Stock actually issued under the Plan. The loss of existing or potential profit
in Awards will not constitute an element of damages in the event of termination of Employment for any reason, even if the termination
is in violation of an obligation of the Company or Affiliate to the Participant.


 


(8) Section 162(m).  This
Section 6(a)(8) applies to any Performance Award intended to qualify as performance-based for the purposes of Section 162(m) other
than a Stock Option. In the case of any Performance Award to which this Section 6(a)(8) applies, the Plan and such Award will be
construed to the maximum extent permitted by law in a manner consistent with qualifying the Award for such exception. With respect
to such Performance Awards, the Administrator will preestablish, in writing, one or more specific Performance Criteria no later
than 90 days after the commencement of the period of service to which the performance relates (or at such earlier time as is required
to qualify the Award as performance-based under Section 162(m)). Prior to grant, vesting or payment of the Performance Award, as
the case may be, the Administrator will certify whether the applicable Performance Criteria have been attained and such determination
will be final and conclusive.


 






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(9) Section 409A. Except
as the Administrator expressly determines in any case, each Award shall contain such terms, and shall be construed and administered,
such that the Award either (i) qualifies for an exemption from the requirements of Section 409A, or (ii) satisfies such requirements.


 


(10) Certain Requirements of Corporate
Law. Awards shall be granted and administered consistent with the applicable requirements of Massachusetts law relating
to the issuance of stock and the consideration to be received therefor and with the applicable requirements of Nasdaq (if, at such
time, the Company’s Stock is listed on a Nasdaq market).


 


(b)Awards
Requiring Exercise


 


(1) Time And Manner Of Exercise.
Unless the Administrator expressly provides otherwise, an Award requiring exercise by the holder will not be deemed to have
been exercised until the Administrator receives a notice of exercise (in form acceptable to the Administrator) signed by the appropriate
person and accompanied by any payment required under the Award. If the Award is exercised by any person other than the Participant,
the Administrator may require satisfactory evidence that the person exercising the Award has the right to do so.


 


(2) Exercise Price. The exercise
price (or the base value from which appreciation is to be measured) of each Award requiring exercise shall be not less than 100%
of the fair market value of the Stock subject to the Award, determined as of the date of grant. Fair market value shall be determined
by the Administrator consistent with the requirements of Section 409A, as applicable. No such Award, once granted, may be repriced
other than in accordance with the applicable stockholder approval requirements of Nasdaq, if, at such time, the Company’s
Stock is listed on a Nasdaq market.


 


(3) Payment Of Exercise Price.
Where the exercise of an Award is to be accompanied by payment, payment shall be made by delivery of cash or check acceptable to
the Administrator, or, if so permitted by the Administrator and if legally permissible, (i) through the delivery of shares of Stock
that have been outstanding for at least six months (unless the Administrator approves a shorter period) and that have a fair market
value equal to the exercise price, (ii) through a broker-assisted exercise program acceptable to the Administrator, (iii) by other
means acceptable to the Administrator, or (iv) by any combination of the foregoing permissible forms of payment. The delivery of
shares in payment of the exercise price under clause (i) above may be accomplished either by actual delivery or by constructive
delivery through attestation of ownership, subject to such rules as the Administrator may prescribe.


 


	7.	EFFECT OF CERTAIN TRANSACTIONS




 


(a)Mergers,
etc. Except as otherwise provided in an Award, the following provisions shall apply
in the event of a Covered Transaction:


 


(1)  Assumption or Substitution.
If the Covered Transaction is one in which there is an acquiring or surviving entity, the Administrator may provide for the assumption
of some or all outstanding Awards or for the grant of new awards in substitution therefor by the acquiror or survivor or an affiliate
of the acquiror or survivor. Any substitution or assumption of a Stock Option exempt from the requirements of Section 409A shall
be accomplished on a basis that preserves such exemption.


 






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(2)  Cash-Out of Awards.
If the Covered Transaction is one in which holders of Stock will receive a payment upon consummation, the Administrator may provide
for payment (a “cash-out”), with respect to some or all Awards or portions thereof, equal in the case of each affected
Award or portion thereof to the excess, if any, of (A) the fair market value of one share of Stock (as determined by the Administrator
in its reasonable discretion) times the number of shares of Stock subject to the Award or such portion, over (B) the aggregate
exercise or purchase price, if any, under the Award or such portion, in each case on such payment terms (which need not be the
same as the terms of payment to holders of Stock) and other terms, and subject to such conditions, as the Administrator determines;
provided, that the Administrator shall not exercise its discretion under this Section 7(a)(2) with respect to an Award providing
for “nonqualified deferred compensation” subject to Section 409A in a manner that would constitute an extension or
acceleration or, or other change in, payment terms if such change would be inconsistent with the requirements of Section 409A.


 


(3) Acceleration of Certain Awards.
If the Covered Transaction (whether or not there is an acquiring or surviving entity) is one in which there is no assumption, substitution
or cash-out, each Award requiring exercise will become fully exercisable, and the delivery of shares of Stock deliverable under
each outstanding Award of Stock Units (including Restricted Stock Units and Performance Awards to the extent consisting of Stock
Units) will be accelerated and such shares will be delivered, prior to the Covered Transaction, in each case on a basis that gives
the holder of the Award a reasonable opportunity, as determined by the Administrator, following exercise of the Award or the delivery
of the shares, as the case may be, to participate as a stockholder in the Covered Transaction; provided, that to the extent
acceleration pursuant to this Section 7(a)(3) of an Award subject to Section 409A would cause the Award to fail to satisfy the
requirements of Section 409A, the Award shall not be accelerated and the Administrator in lieu thereof shall take such steps as
it deems necessary or appropriate to ensure that payment of the Award is made in a medium other than Stock and on terms that as
nearly as possible, but taking into account adjustments required or permitted by this Section 7, mirror the prior terms of the
Award.


 


(4) Termination of Awards Upon Consummation
of Covered Transaction. Each Award will terminate upon consummation of the Covered Transaction, other than the following:
(i) Awards assumed pursuant to Section 7(a)(1) above; (ii) Awards converted pursuant to the proviso in Section 7(a)(3) above into
an ongoing right to receive payment other than Stock; and (iii) outstanding shares of Restricted Stock (which shall be treated
in the same manner as other shares of Stock, subject to Section 7(a)(5) below).


 


(5) Additional
Limitations. Any share of Stock delivered pursuant to Section 7(a)(2) or Section
7(a)(3) above with respect to an Award may, in the discretion of the Administrator, contain such restrictions, if any, as the Administrator
deems appropriate to reflect any performance or other vesting conditions to which the Award was subject. In the case of Restricted
Stock, the Administrator may require that any amounts delivered, exchanged or otherwise paid in respect of such Stock in connection
with the Covered Transaction be placed in escrow or otherwise made subject to such restrictions as the Administrator deems appropriate
to carry out the intent of the Plan.


 






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(b)Change
in and Distributions With Respect to Stock


 


(1) Basic Adjustment Provisions.
In the event of a stock dividend, stock split or combination of shares (including a reverse stock split), recapitalization or other
change in the Company’s capital structure, the Administrator shall make appropriate adjustments to the maximum number of
shares specified in Section 4(a) that may be delivered under the Plan and shall also make appropriate adjustments to the number
and kind of shares of stock or securities subject to Awards then outstanding or subsequently granted, any exercise prices relating
to Awards and any other provision of Awards affected by such change.


 


(2) Certain Other Adjustments.
The Administrator may also make adjustments of the type described in Section 7(b)(1) above to take into account distributions to
stockholders other than those provided for in Section 7(a) and 7(b)(1), or any other event, if the Administrator determines that
adjustments are appropriate to avoid distortion in the operation of the Plan and to preserve the value of Awards made hereunder,
having due regard for the requirements of Section 409A, and the performance-based compensation rules of Section 162(m), where applicable.


 


(3) Continuing Application of Plan
Terms. References in the Plan to shares of Stock will be construed to include any stock or securities resulting from an
adjustment pursuant to this Section 7.


 


	8.	LEGAL CONDITIONS TO DELIVERY OF STOCK




 


The Company will not be obligated to deliver
any shares of Stock pursuant to the Plan or to remove any restriction from shares of Stock previously delivered under the Plan
until: (i) the Company is satisfied that all legal matters in connection with the issuance and delivery of such shares have been
addressed and resolved; (ii) if the outstanding Stock is at the time of delivery listed on any stock exchange or national market
system, the shares to be delivered have been listed or authorized to be listed on such exchange or system upon official notice
of issuance; and (iii) all conditions of the Award have been satisfied or waived. If the sale of Stock has not been registered
under the Securities Act of 1933, as amended, the Company may require, as a condition to exercise of the Award, such representations
or agreements as counsel for the Company may consider appropriate to avoid violation of such Act. The Company may require that
certificates evidencing Stock issued under the Plan bear an appropriate legend reflecting any restriction on transfer applicable
to such Stock, and the Company may hold the certificates pending lapse of the applicable restrictions.


 






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	9.	AMENDMENT AND TERMINATION




 


The Administrator may at any time or times
amend the Plan or any outstanding Award for any purpose which may at the time be permitted by law, and may at any time terminate
the Plan as to any future grants of Awards; provided, that except as otherwise expressly provided in the Plan the Administrator
may not, without the Participant’s consent, alter the terms of an Award so as to affect adversely the Participant’s
rights under the Award, unless the Administrator expressly reserved the right to do so at the time of the Award. Any amendments
to the Plan shall be conditioned upon stockholder approval only to the extent, if any, such approval is required by law (including
the Code and applicable stock exchange requirements), as determined by the Administrator.


 


	10.	OTHER COMPENSATION ARRANGEMENTS




 


The existence of the Plan or the grant of
any Award will not in any way affect the Company’s right to Award a person bonuses or other compensation in addition to Awards
under the Plan.


 


	11.	MISCELLANEOUS




 


(a)Clawback.
Notwithstanding any other provisions in this Plan, any Award which is subject to recovery under any law, government regulation
or stock exchange listing requirement, will be subject to such deductions and clawback as may be required to be made pursuant to
such law, government regulation or stock exchange listing requirement (or any policy adopted by the Company pursuant to any such
law, government regulation or stock exchange listing requirement).


 


(b)Waiver
of Jury Trial. By accepting an Award under the Plan, each Participant waives any right
to a trial by jury in any action, proceeding or counterclaim concerning any rights under the Plan and any Award, or under any amendment,
waiver, consent, instrument, document or other agreement delivered or which in the future may be delivered in connection therewith,
and agrees that any such action, proceedings or counterclaim shall be tried before a court and not before a jury. By accepting
an Award under the Plan, each Participant certifies that no officer, representative, or attorney of the Company has represented,
expressly or otherwise, that the Company would not, in the event of any action, proceeding or counterclaim, seek to enforce the
foregoing waivers


 


(c)Limitation
of Liability. Notwithstanding anything to the contrary in the Plan, neither the Company,
any Affiliate, nor the Administrator, nor any person acting on behalf of any of them, shall be liable to any Participant or to
the estate or beneficiary of any Participant or to any other holder of an Award by reason of any acceleration of income, or any
additional tax, asserted by reason of the failure of an Award to satisfy the requirements of Section 409A or by reason of Section
4999 of the Code; provided, that nothing in this Section 11(b) shall limit the ability of the Administrator or the
Company to provide by separate express written agreement with a Participant for a gross-up payment other payment in connection
with any such tax or additional tax.


 


(c)Governing Law. This
Plan, and all actions taken thereunder, and all Awards shall be governed by, and construed in accordance with, the laws of the
Commonwealth of Massachusetts, applied without regard to the conflict of law principles.


 


	12.	EFFECTIVE DATE OF THE PLAN




 


This Plan shall become effective upon approval
by the Company’s Board. No grants of Stock Options and other Awards may be made hereunder after the tenth (10th)
anniversary of the Effective Date.


 



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